                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-5056


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BENNIE A. MACK, JR.,

                Defendant - Appellant.



                              No. 10-6648


UNITED STATES OF AMERICA,

                Plaintiff -     Appellee,

          v.

BENNIE A. MACK, JR.,

                Defendant - Appellee.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00267-WLO-1)


Submitted:   October 31, 2011               Decided:   November 29, 2011


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.      John W. Stone, Jr., Acting
United States Attorney, Frank J. Chut, Jr., Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Bennie    A.     Mack,       Jr.      appeals    his     conviction      and

sentence of 135 months in prison after a jury convicted him of

eleven counts of wire fraud in violation of 18 U.S.C. § 1343

(2006).     Mack’s attorney has filed a brief pursuant to Anders v.

California,      386     U.S.    738       (1967),    asserting,       in    his    opinion,

there     are    no     meritorious         grounds     for    appeal,       but    raising

numerous issues.         Mack has filed a pro se supplemental brief and

a pro se reply brief.                 We dismiss the appeal in part, and we

affirm the district court’s judgment.

               Mack first contends the district court judge erred in

failing to recuse himself.                  We review this issue for abuse of

discretion.       See United States v. Cherry, 330 F.3d 658, 665 (4th

Cir. 2003).       A judge has a general duty to disqualify himself in

any proceeding in which his impartiality might reasonably be

questioned.       28 U.S.C. § 455(a) (2006); Belue v. Leventhal, 640

F.3d    567,    572     (4th    Cir.       2011).      He    should    also    disqualify

himself where he has a personal bias or prejudice concerning a

party,    and    when    he     has    a    financial       interest    in    the   subject

matter in controversy that could be substantially affected by

the outcome of the proceeding.                28 U.S.C. § 455(b) (2006).

               Judicial rulings alone almost never constitute a valid

basis for a bias or partiality motion.                      Liteky v. United States,

510 U.S. 540, 555 (1994).                  A judge is not disqualified because

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he has been sued by a defendant in a criminal case.                      United

States v. Watson, 1 F.3d 733, 735 (8th Cir. 1993).                   “[R]ecusal

decisions reflect not only the need to secure public confidence

through proceedings that appear impartial, but also the need to

prevent parties from too easily obtaining the disqualification

of    a    judge,    thereby    potentially   manipulating   the     system   for

strategic reasons.”            Belue, 640 F.3d at 574.       We have reviewed

the record and conclude that the district court judge did not

abuse his discretion in not recusing himself.

              Mack next claims he was prejudiced by the conflict of

interest of his former standby counsel.             We may address a claim

of ineffective assistance of counsel on direct appeal only if

the       lawyer’s    ineffectiveness    conclusively      appears    from    the

record.       United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir. 2006).          To prevail on a conflict claim, a defendant must

prove both “that his attorney labored under an actual conflict

of interest and that the attorney’s conflict adversely affected

his representation.”            Stephens v. Branker, 570 F.3d 198, 209

(4th Cir. 2009).          If he does so, then prejudice is presumed.

Id.       “Adverse effect cannot be presumed, however, from the mere

existence of a conflict of interest.”                Id.     We conclude the

record does not conclusively show counsel was ineffective.

              Mack next contends that the district court erred in

denying his motion to dismiss a juror for cause.                “It is well-

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settled, of course, that an accused is entitled under the Sixth

Amendment to trial by a jury composed of those who will adhere

to the law and fairly judge the evidence.”                           United States v.

Smith, 451 F.3d 209, 219 (4th Cir. 2006).                       Deference is due to

the    district     court’s     conclusions       on    that    question,       and    the

burden of proving partiality is upon the challenger.                             United

States v. Turner, 389 F.3d 111, 117-18 (4th Cir. 2004).                                 We

review the district court’s refusal to excuse a juror for abuse

of discretion.        United States v. Capers, 61 F.3d 1100, 1104 (4th

Cir. 1995).         We have reviewed the record and conclude that the

district court did not abuse its discretion.

             Mack next contends the district court erred in denying

his Fed. R. Crim. P. 29 motion based on sufficiency of the

evidence.      We review a district court’s denial of a motion for

judgment of acquittal de novo.                 United States v. Hickman, 626

F.3d 756, 762 (4th Cir. 2010).                   We are “obliged to sustain a

guilty   verdict       that,   viewing     the    evidence      in    the    light    most

favorable      to     the    prosecution,      is      supported      by     substantial

evidence.”        United States v. Osborne, 514 F.3d 377, 385 (4th

Cir.   2008)    (internal      quotation       marks    and     citations      omitted).

Substantial     evidence       in   the   context      of   a   criminal      action   is

“evidence      that    a    reasonable    finder       of   fact     could    accept   as

adequate and sufficient to support a conclusion of a defendant’s



                                           5
guilt beyond a reasonable doubt.”                     United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc).

             A defendant bringing a sufficiency challenge bears a

“heavy burden.”         United States v. Hoyte, 51 F.3d 1239, 1245 (4th

Cir. 1995).        In evaluating the sufficiency of evidence, we do

not   review    the     credibility       of       witnesses    and    assume    the     jury

resolved all contradictions in the testimony in favor of the

Government.        United States v. Foster, 507 F.3d 233, 245 (4th

Cir. 2007).        “Reversal for insufficient evidence is reserved for

the   rare     case    ‘where      the    prosecution’s         failure     is    clear.’”

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)

(quoting Burks v. United States, 437 U.S. 1, 17 (1978)).

             The      elements     of    wire      fraud     under    18   U.S.C.    § 1343

(2006) are:        (1) existence of a scheme to defraud; (2) involving

a material misrepresentation; and (3) use of wire communications

in furtherance of that scheme.                  Neder v. United States, 527 U.S.

1, 25 (1999); United States v. Allen, 491 F.3d 178, 185 (4th

Cir. 2007).        To establish a scheme to defraud, the Government

must prove that the defendant acted with the specific intent to

defraud,     which      may   be    inferred          from     the    totality      of    the

circumstances and need not be proven by direct evidence.                             United

States v. Godwin, 272 F.3d 659, 666 (4th Cir. 2001).                            A person’s

plan to convert funds to his personal use after representing

they will be used for others constitutes a scheme to defraud.

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See United States v. Hawkey, 148 F.3d 920, 924 (8th Cir. 1998).

“‘The intent to repay eventually is irrelevant to the question

of   guilt     for    fraud.’”         Allen,       491   F.3d       at    186   (citations

omitted).       We have reviewed the record and conclude that the

evidence was sufficient to support the convictions.

             Mack     next     contends      that     a   law    enforcement         officer

destroyed exculpatory evidence, and the district court erred in

denying      his     motion    to     dismiss       the   indictment.              After   an

evidentiary hearing, the district court found that although Mack

did give an officer some documents to copy, and they were lost,

there was no evidence they were exculpatory in nature, that the

officer acted in bad faith, or that Mack was unable to obtain

comparable evidence by other reasonably available means.

             We review the district court’s factual findings for

clear error and its legal conclusions de novo.                            United States v.

Woolfolk,      399    F.3d    590,    594    (4th     Cir.   2005).          The    duty    to

preserve evidence arises when the evidence “both possess[es] an

exculpatory        value     that    was    apparent      before      the    evidence      was

destroyed, and [is] of such a nature that the defendant would be

unable    to       obtain     comparable          evidence      by    other      reasonably

available means.”           California v. Trombetta, 467 U.S. 479, 488-89

(1984).      “[U]nless a criminal defendant can show bad faith on

the part of the police, failure to preserve potentially useful

evidence does not constitute a denial of due process of law.”

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Arizona   v.    Youngblood,       488   U.S.    51,    58   (1988).        Bad     faith

“requires      that   the   officer      have       intentionally     withheld       the

evidence for the purpose of depriving the plaintiff of the use

of that evidence during his criminal trial.”                     Jean v. Collins,

221 F.3d 656, 663 (4th Cir. 2000).                  We have reviewed the record

and conclude that the district court did not err in denying

Mack’s motion to dismiss the indictment.

            Mack next contends he was denied complete discovery or

adequate access to discovery, and the district court erred in

denying him a second continuance to review discovery materials.

We review a district court’s decision under Fed. R. Crim. P. 16

for abuse of discretion.           United States v. Caro, 597 F.3d 608,

616,   621-22     (4th    Cir.    2010).        A    defendant      must     establish

prejudice to obtain reversal of a conviction for a discovery

violation.      United States v. Chastain, 198 F.3d 1338, 1348 (11th

Cir. 1999).      We review the denial of a motion to continue for

abuse of discretion; and even if abuse is found, a defendant

must show that the error prejudiced his case in order to prevail

on appeal.       United States v. Williams, 445 F.3d 724, 739 (4th

Cir. 2006).      We have reviewed the record and conclude that the

district court did not abuse its discretion.

            Mack next claims he was subjected to unconstitutional

double    jeopardy       when    the    state    referred     his     case    to     the

Government     for    prosecution.        We    conclude    that    this     claim    is

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without merit.        See Heath v. Alabama, 474 U.S. 82, 88-89 (1985);

United     States    v.     Lanza,     260    U.S.      377,     384   (1922);    United

States v. Alvarado, 440 F.3d 191, 196 (4th Cir. 2006); United

States v. Jackson, 327 F.3d 273, 295 (4th Cir. 2003).

            Mack next claims that he was denied the right to call

and cross-examine witnesses due to the district court’s denial

of his requests under Fed. R. Crim. P. 17(b) and its evidentiary

rulings.     The grant or denial of a request for subpoenas under

Rule 17(b) is vested in the sound discretion of the district

court, and the district court may deny a motion for compulsory

production    of     witnesses       who     cannot     offer     relevant   evidence.

United States v. Bennett, 675 F.2d 596, 598 (4th Cir. 1982).

            We review a district court’s evidentiary rulings for

abuse of discretion and will only overturn an evidentiary ruling

that is arbitrary and irrational.                    United States v. Cole, 631

F.3d 146, 153 (4th Cir. 2011).                    District courts retain wide

latitude to impose reasonable limits on cross-examination based

on concerns about, among other things, harassment, confusion of

the   issues,       and    interrogation         that     is    repetitive   or     only

marginally relevant.          Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986).      We     have    reviewed    the      record    and    conclude   that    the

district court did not abuse its discretion.

            Mack’s        remaining    issues     are     sentencing     issues.      He

contends the district court erred in calculating loss under U.S.

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Sentencing Guidelines Manual § 2B1.1(b)(1) (2008); in finding he

abused a position of trust under USSG § 3B1.3; in finding he

obstructed justice under USSG § 3C1.1; in finding his offense

involved      sophisticated            means      under    USSG       § 2B1.1(b)(9)(C);       in

denying his request for downward departure based on time served;

and in calculating his criminal history category.

               We    review       a    sentence        under    a    deferential      abuse-of-

discretion standard.                  Gall v. United States, 552 U.S. 38, 51

(2007).        The first step in this review requires us to ensure

that    the    district       court         committed      no       significant    procedural

error,       such    as    improperly         calculating           the   Guidelines    range,

failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or

failing to adequately explain the sentence.                                 United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009).                                If the sentence is

procedurally         reasonable,             we    then    consider         the   substantive

reasonableness of the sentence imposed, taking into account the

totality of the circumstances.                     Gall, 552 U.S. at 51.

               In    determining            whether     the     district     court    properly

applied the advisory Guidelines, we review its legal conclusions

de    novo    and    its     factual         findings     for       clear    error.     United

States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).                               We presume

a    sentence       within    a       properly     calculated         Guidelines      range   is

reasonable.           Allen,          491   F.3d    at    198.         In   sentencing,       the

district court should first calculate the Guidelines range and

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give the parties an opportunity to argue for whatever sentence

they deem appropriate.         United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007).        The district court should then consider

the relevant § 3553(a) factors to determine whether they support

the sentence requested by either party.             Id.     When rendering a

sentence, the district court must make and place on the record

an individualized assessment based on the particular facts of

the case.    Carter, 564 F.3d at 328, 330.

            We   have   reviewed   the    record   and    conclude      that   the

district    court   properly   calculated     Mack’s     advisory    Guidelines

range, and his sentence is reasonable.             To the extent that he

challenges    the   district    court’s    decision    to   deny    a   downward

departure, this decision is not reviewable and we dismiss this

portion of the appeal.          See Allen, 491 F.3d at 193.               To the

extent that he challenges the district court’s decision not to

sentence him below his advisory Guidelines range, we conclude

that the district court did not abuse its discretion.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore dismiss the appeal in part, and we affirm

the district court’s judgment.           We deny Mack’s pro se motions to

proceed pro se on appeal and to strike the Anders brief.                        We

deny appellate counsel’s motion to withdraw without prejudice to

him refiling the motion at the appropriate time.

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            This court requires that counsel inform his client, in

writing,   of   his     right   to   petition    the   Supreme    Court   of   the

United States for further review.             If the client requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                 Counsel’s motion must

state that a copy thereof was served on the client.

            We dispense with oral argument because the facts and

legal    contentions     are    adequately     presented    in   the    materials

before   the    court    and    argument     would   not   aid   the   decisional

process.

                                                            DISMISSED IN PART;
                                                              AFFIRMED IN PART




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