                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4626


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

TIMOTHY JAMES POOLE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:09-cr-00531-RBH-1)


Argued:   September 21, 2011                 Decided:   October 20, 2011


Before DUNCAN and AGEE, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.


Affirmed by unpublished opinion.        Judge Duncan wrote          the
opinion, in which Judge Agee and Senior Judge Keith joined.


ARGUED: Jonathan McKey Milling, MILLING LAW FIRM, LLC, Columbia,
South Carolina, for Appellant.     Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: William N. Nettles, United States Attorney, A. W.
Bethea, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina; Lanny A.
Breuer, Assistant Attorney General, Greg D. Andres, Acting
Deputy Assistant Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

     This appeal arises from Timothy Poole’s conviction on one

count of conspiracy to commit mail and wire fraud, in violation

of 18 U.S.C. § 1349, seventeen counts of substantive mail fraud,

in violation of 18 U.S.C. § 1341, and two counts of substantive

wire fraud, in violation of 18 U.S.C. § 1343.                      Poole challenges

his convictions and his 400-year sentence.                   For the reasons that

follow, we affirm.



                                           I.

                                           A.

                                           1.

     In    1981,     Poole,   then     seven      years     old,    and    his   three

siblings were adopted by Richard and Linda Poole.                     In 1991, the

Pooles moved to Lakewood Plantation, a 3,000 acre estate in a

rural,    isolated    area    in   Williamsburg          County,   South     Carolina.

Richard,    a    successful    businessman,          established      discretionary

trusts for Linda and the children in his will.                       After Linda’s

death,     the     children        would        become     the     primary       income

beneficiaries in the discretion of the trustee, and they would

be entitled to receive income from the trust.

     In 1994, Poole married Jodie Wise.                   They had a son in 1998.

From 1997 to September 2002, Poole was employed by the Florence



                                           3
(S.C.)       County      Sheriff’s       Office.         During    that    period,    he

purchased a .38 Smith and Wesson revolver.

       After Richard’s death in 2001, Linda prepared a will that

established trust funds for Poole and his siblings.                             She also

gave       money    to   Poole    to     support    his     family,   including      $833

monthly.           In 2002, Linda gave $200,000 each to Poole and his

siblings,          whereupon     Poole    quit     his    job. 1   Poole    spent     the

$200,000 within a year.                Poole asked Linda for more money, and

she gave him an additional $70,000, which he spent within three

months.       At the same time, some of Poole’s checks were returned

for insufficient funds.

       In August 2004, Linda married Henry Hilton, and placed him

in charge of Lakewood.             Poole disapproved of this decision. 2               In

March 2005, Linda amended her will to make Hilton her executor

and    the     primary     beneficiary       of     her     estate.       The    codicil

substituted Hilton for the children as the estate beneficiaries

upon Linda’s death.              Also, under the new arrangement, the trust

for the children would not be legally formed if Hilton survived

Linda.       Thus, Poole and his siblings would not be entitled to

received Linda’s trust assets unless Hilton died before Linda.



       1
       Poole told Jodie that he left the Sheriff’s Department
because of internal politics and lack of salary increases.
     2
       After Richard’s death, Poole had offered to run the
plantation, but Linda declined his offer.

                                             4
On March 23, by letter, Linda informed Poole of these changes.

At the time, Linda’s estate was worth $5 million.

      In 2005, Poole began an affair with Mia Evans.               As relevant

to this appeal, in August, during the affair, Evans bought for

Poole a pair of New Balance, Model 471, size 12 shoes.                      Evans

noticed that Poole always kept a revolver in the console of his

Cadillac Escalade.         In October, Poole fought with Jodie over his

affair with Evans, after which Jodie called Linda, disclosed

Poole’s affair, and said that Poole had spent all their money.

On November 17, by letter, Linda chastised Poole for his marital

infidelity.      On November 19, in another letter, Linda threatened

to remove Poole as a trust beneficiary.                  Linda also told Poole

to   get   a   job   and   care    for   his   family.      Meanwhile,    Poole’s

financial problems continued to worsen. 3

      In   2006,     Poole’s      financial    problems    escalated     further.

Poole’s bank notified him that future missed mortgage and other

loan payments could lead to foreclosure proceedings.                On June 4,

Linda sent Poole two letters.             In the first, she advised Poole

that beginning in January 2007, she would give him (and his

siblings) a yearly sum of $10,000 in lieu of her $833 monthly


      3
       He continued to spend money while missing his mortgage and
other loan payments.   In March, he borrowed $75,000 from Linda
after falsely telling her that he would use the money to start a
business.   Poole paid bills and his living expenses with the
money instead.

                                         5
payment.      She also advised Poole that she did not want further

requests for money for anything other than medical emergencies,

and that Poole needed to establish his own reserve.                                  In the

second letter, Linda sent Poole a check for his June mortgage

payment,     and    said     that    she    would   cover       his   July    and    August

mortgage payment but no more.                On several occasions during July,

Linda    told      friends    that    Poole       had    been    coming      to    Lakewood

uninvited,      even   when    Linda       was    out,   for    no    apparent      reason.

Linda said that she was not personally afraid of Poole, but she

was “very, very afraid” for Hilton.

                                             2.

       At noon on August 1, 2006, Poole visited friends Rachel and

Robert Atkinson at their home, leaving at 5:15 p.m.                                  Rachel

noticed      that   Poole     was    wearing      “tennis       shoes.”       As    he   was

leaving, Poole informed Rachel that he was going to a GNC store

and then returning home.               From 1:58 p.m. that day until 10:22

a.m.    on   August    2,    Poole’s       cell   phone    was    turned      off,    which

prevented his cell phone provider from tracking Poole’s location

during that period.           At 5:30 p.m., Poole went to a GNC store--

located about 38 miles and a 44-minute drive from Lakewood--and

argued with a store clerk.                 According to Jodie Poole, who was

home that day, Poole returned home between 10:00 p.m. and 11:00




                                             6
p.m. 4       Jodie believed that Poole was working on the night shift

at a Honda plant.

         On the morning of August 2, a Lakewood employee noticed

that the padlock at the front gate was located upside down,

outside the gate; normally, Linda and Hilton locked the gate

behind them, causing the padlock to be placed inside the gate.

That afternoon, Lakewood employees found Linda’s body near the

house.        Linda died of two gunshot wounds.          Inside the residence,

the employees found Hilton’s body.                Hilton had been shot four

times. 5      The bullets that killed Linda and Hilton were consistent

with bullets fired from either a .38 Smith and Wesson revolver

or a .357 Magnum.

         State law enforcement agents arrived at Lakewood later that

day.         While   they   noticed   small    signs   of    disturbance      in   the

house, the agents did not believe that a robbery had occurred;

there were no signs of a forced entry, and items of significant

value were accounted for.               The agents saw shoe prints in the

carpet       near    Hilton’s   body.     An    expert      shoe   examiner    later


         4
       A video camera located at a gas station captured a car
coming from the direction of Lakewood, then making a turn onto a
road leading to his house, at approximately 10:53 p.m. on August
1. An expert witness “could not definitively state that the car
in the video was [Poole’s] but he could not rule it out either.”
Brief for United States at 9.
     5
       The details of the crime only became public knowledge
after September 8, 2006, the date on which the deputy coroner
received the final autopsy report.

                                          7
concluded that the prints shared “limited design features” with

a New Balance 471 shoe, but he could not determine the shoe

prints’ size.

       That      afternoon,      an    officer       picked     up    Poole    at    home   and

drove him to Lakewood.                Enroute, Poole said that he had given a

.38   revolver       to    Linda      for    her     protection       after    his    father’s

death. 6          That    evening,       agents      interviewed        Poole       and    Jodie

separately.          Before Jodie’s interview, Poole instructed her to

falsely tell the agents that he returned home at 6:00 p.m. on

August 1, and spent the night with her there.                                 Jodie did so.

During his interview, Poole said that he was at the Atkinsons’

house during the afternoon of August 1, and he returned home at

6:00 p.m.         He then left his house to purchase an item at a GNC

store,      and    returned      home       at   6:30    p.m.        Poole    denied      having

financial problems, then stated that he could always get money

from Linda if he did.                   Poole’s interview ended at 9:35 p.m.

During the next ten minutes, Poole made several calls to Jodie;

he    also    sent       her   several      text     messages,       asking    her    to    stop

talking to investigators.

       On August 3, agents executed a search warrant at Poole’s

house      and    vehicle.       They       seized      several      firearms,      and    other



       6
       The police recovered several firearms from Lakewood, but a
.38 pistol was not among them.

                                                 8
items,       but    they    did    not    find       Poole’s      .38    Smith    and    Wesson

revolver or his New Balance shoes.

                                              3.

       On     August       18,      2006,     Poole            contacted       Linda’s    trust

administrator and requested money from her estate to pay his

bills.       Poole made several additional requests between 2006 and

2008.        Jodie also participated in the effort to obtain funds

from       Linda’s    estate.          From   2006        to    2008,    the    trust    issued

multiple checks to Poole, his bank, and his creditors.                                    Poole

used       these    funds,     inter     alia,       to    make    his   mortgage       and   car

payments, and pay his current food, gas, and other bills.

                                              B.

        On April 30, 2009, a grand jury charged that Timothy Poole

and Jodie Poole conspired together to commit mail and wire fraud

upon Linda’s estate.               The indictment alleged, in relevant part,

that it was part of the conspiracy that Poole and Jodie would

conceal Poole’s involvement in the Hilton murders so that Poole

would remain eligible to inherit monies from Linda’s estate. 7

       During a ten-day jury trial in the United States District

Court       for     the    District      of   South         Carolina,      the     government

presented          testimony      from   several          witnesses.       Jodie    testified


       7
       The “Slayer’s Rule,” codified in South Carolina at S.C.
Code Anno. § 62-2-803, prevents a person who “feloniously and
intentionally” kills another from benefitting from the death.

                                                 9
about Poole asking her to lie as to his whereabouts on the day

of the murder. 8   Additionally, as relevant to this appeal, Mia

Evans (with whom Poole had an affair, as noted above), 9 Ryana

Cafasso (with whom Poole also had an affair), 10 Rachel Atkinson

(the wife of a friend, with whom Poole also had an affair), 11


     8
        Jodie, who testified under a limited grant of immunity,
also testified about conversations she had with Poole before the
murders regarding his desire to move to Lakewood after his
father’s    death,  and   the   reasons   he  left  the  sheriff’s
department.    She testified that Poole did not discuss with her
the cost of several items that he purchased.       Jodie was asked
about a specific fight she had with Poole, and about the
conversation between them when she confronted him regarding his
affair with Mia Evans.        Jodie further testified that Poole
advised her that on July 31, 2006, he was going to see his
mother. Finally, she testified regarding communications between
her and Poole after the murders.
     9
        Evans testified that in 2005, as we have noted earlier,
she bought a pair of New Balance, Model 471, size 12 shoes for
Poole, and that during the same time period she noticed that
Poole always kept a revolver in the console of his Cadillac
Escalade.    In November 2006, Evans testified, Poole stated to
her that he was at home during the murders; that he had thrown
out his New Balance shoes after he spilled gas on them while
filling his lawn mower; and the police had seized all his guns,
including the revolver in his car. Evans also testified that in
February 2007, Poole and Evans vacationed in Tennessee. During
the trip, Evans testified, Poole told her that he had thrown
away his New Balance shoes not only because he spilled gas on
them, but because they had been chewed up by his dogs.
     10
         Cafasso testified that during their relationship, Poole
mentioned that Jodie had moved out of their home temporarily.
Poole also told her, Cafasso stated, that he had dinner with
Linda and Hilton on July 31.       Whenever they went out, Cafasso
observed, Poole wore either boots or Nike shoes.
     11
         Atkinson testified that during the last week of November
2006, Jodie asked her whether Poole had left his New Balance
shoes at her house.        Atkinson said he had not.      Atkinson
testified that Jodie then told her that the Pooles’s dogs had
eaten the shoes.     Later, Atkinson testified, Jodie repeatedly

                               10
Julia   White       (a    friend     of   Cafasso’s), 12        and   Poole’s    brother

Richard, 13   also        provided     testimony          for   the   government       that

suggested     that       Poole   and   Jodie       had    conspired    to    conceal   his

involvement        in    the   murders.        The       government   also    introduced

evidence of Poole’s extramarital affairs, lavish spending and

straitened financial circumstances.                      Poole was convicted on all

counts.       At    sentencing,        the   district        court    determined   by    a

preponderance of the evidence that Poole killed Linda and Hilton

with malice aforethought, and therefore applied a first-degree

murder cross-reference, ultimately sentencing him to 400 years

of imprisonment.          This appeal followed.



                                             II.

      Poole challenges the district court’s denial of his motion

for   acquittal,         claiming      there      was     insufficient      evidence    to



told her that she believed Poole was wearing flip-flops on
August 1, the day of the murders. Atkinson also testified that
she falsely told a law enforcement agent in November 2006 that
Poole wore flip-flops on August 1. Atkinson testified that she
lied to the police because she was afraid Poole would tell her
husband that they had once slept together.
     12
        White testified that on September 2, 2006, Poole told her
that his parents had been killed “execution style,” that Linda
was shot twice in the front yard, and that Hilton was shot three
or four time and found in the house.
     13
        Richard Poole testified that in December 2006, Poole told
him that he was in Myrtle Beach on August 1, refused to talk
about his gun, and said he didn’t understand why agents did not
take the shoes because they were at the front door of his house.



                                             11
support   the   jury’s    verdict.        Poole    also    contends    that   the

district court erroneously admitted evidence of other acts, and

confidential marital communications.              Finally, he raises a host

of challenges to his sentence, asserting that the district court

erred in enhancing it to life imprisonment by applying a first-

degree murder cross-reference, and that the 400-year term of

imprisonment      is     procedurally       as    well     as    substantively

unreasonable.     We consider each challenge in turn.

                                       A.

       Poole first argues that there was insufficient evidence to

support both his convictions for substantive mail and wire fraud

and for conspiracy to commit mail and wire fraud.                     This court

reviews challenges to the sufficiency of evidence supporting a

jury verdict de novo.         United States v. Kelly, 510 F.3d 433, 440

(4th Cir. 2007).         The verdict must be upheld if, drawing all

reasonable inferences in favor of the prosecution, this court

determines that there “is evidence that a reasonable finder of

fact   could    accept   as    adequate     and   sufficient     to   support    a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).    In particular, “determinations of credibility are within

the    sole   province   of    the   jury   and    are    not   susceptible     to

judicial review.”        Id. at 863 (internal quotations omitted).

Further, this court must examine the evidence in a “cumulative

                                       12
context”--as opposed to “in a piecemeal fashion”--to determine

its sufficiency.          Id.

                                               1.

      We first address the convictions on the substantive counts.

The elements of mail or wire fraud are (1) the existence of a

scheme     to    defraud,       and    (2)     use   of     the    mails     or    wires    to

perpetrate the scheme.                United States v. Vinyard, 266 F.3d 320,

326   (4th      Cir.   2001). 14       To     establish      the   first element,          the

government       had   to     prove    that    Poole      “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)(internal         quotations         omitted).           A    scheme     to     defraud

includes “an assertion of a material falsehood with the intent

to deceive or active concealment of a material fact with the

intent to deceive.”             United States v. Pasquantino, 336 F.3d 321,

333 (4th Cir. 2003) (en banc).

      The       parties      agree     that    in    order    to     prove    that       Poole

committed mail and wire fraud, the government was required to

establish, beyond a reasonable doubt, that Poole “feloniously

and   intentionally”            killed      Linda    and     Hilton.         The     parties


      14
       We address only the first element, as there is no dispute
that Poole made use of the mails and wires to obtain funds from
Linda’s estate.

                                               13
disagree, however, as to whether the government met that burden

at     trial.      In   denying       Poole’s   motion    for   a   judgment      of

acquittal, the district court held that there was sufficient

evidence to sustain a conviction as to each count.                  We agree.

       The government presented evidence that before the murder,

Poole made repeated trips to Lakewood at odd times (from which

the jury could reasonably have inferred that he was attempting

to determine the best time to kill Linda and Hilton), turned his

cell    phone   off     (from   which    the    jury   could    reasonably       have

inferred that he was attempting to conceal his whereabouts), and

by   arguing    with     a    store    clerk    shortly   before     the    murders

occurred (from which the jury could reasonably have inferred

that he tried to create a partial alibi).                  While Poole offers

alternative explanations in each instance, we need only find

that the jury could have reasonably credited the government’s

theory.     Similarly, while no witness testified that Poole wore a

specific model of New Balance shoes on the day of the murder,

and the print could have been made by a number of other models,

the jury could reasonably have concluded from the circumstantial

evidence    that      the    disappearance      of   Poole’s    shoes,     and   his

conflicting and inconsistent statements about them, evinced his

guilt.     Testimonial evidence was also inconclusive as to the .38

caliber firearm, but the jury reasonably could have concluded

that Poole’s post-murder conduct indicated that he had concealed

                                          14
the gun’s whereabouts after the murder. 15                 Furthermore, the jury

could as well reasonably have agreed with the government that

the presence of only small signs of a disturbance at Lakewood,

coupled with the absence of evidence that anything of value was

taken,    indicated       that   the   murderer    tried    to   create   a    staged

robbery    to    conceal     his    personal      motive    from    investigators.

Finally,        Poole’s      inconsistent      statements          regarding     his

whereabouts on the day of the murder, his false statement that

his mother was still supporting him financially at the time of

the murder, and his statement indicating that he knew that Linda

and Hilton were killed “execution style,” 16 none of which Poole

contests, all support his conviction. 17




     15
         Notably, Poole told the police that he had given the
revolver to his mother, but later told Mia Evans that the police
seized all of his guns after the murders. Poole also refused to
talk about his gun with his brother Richard in November and
December 2006.
     16
        Notably, Julia White testified that Poole informed her of
the details of the murders on September 2, 2006.        That date
preceded the release of the final autopsy report on September 8,
2006, the earliest date on which such details could have become
public knowledge.
     17
        We are also unpersuaded by Poole’s reliance on Evans-
Smith v. Taylor, 19 F.3d 899 (4th Cir. 1994).          There was
virtually no evidence, nor any motive, linking the defendant to
the murder in Evans-Smith.     Here, by contrast, the government
has presented a strong motive, and substantial circumstantial
evidence pointing to Poole.

                                         15
                                                  2.

       Next, we address the conviction on the conspiracy count.

The elements of a mail and wire fraud conspiracy are:                                     (1) the

existence of an agreement to commit mail or wire fraud, (2)

willing participation by the defendant, and (3) an overt act by

one of the defendants in furtherance of the agreement.                                      United

States v. Edwards, 188 F.3d 230, 234 (4th Cir. 1999).                                     Proof of

a conspiracy may be shown by circumstantial evidence, including

evidence of the existence of a “tacit or mutual understanding”

between   the       defendant         and   his    accomplice.              United    States      v.

Ellis, 121 F.3d 908, 922 (4th Cir. 1997).                             “It is not necessary

that   each    member       of    a    conspiracy            have    knowledge      of    all    the

details   of    the        conspiracy,       but       it     is    only    necessary      that    a

conspirator         have    knowledge        of        the    essential          object    of    the

conspiracy.”         United States v. Goldman, 750 F.2d 1221, 1227 (4th

Cir. 1984).

       Accordingly,          in   order       to       prove        that    Jodie    and        Poole

conspired      to    commit       mail      and    wire       fraud,       the    government      is

required to show both that Jodie and Poole conspired to conceal

his involvement in the murder of Linda and Hilton, and also that

an essential object of that conspiracy was to ensure that Poole

remained eligible to recover from Linda’s estate.




                                                  16
                                           a.

        As to whether Jodie and Poole conspired to cover up the

fact that he killed Linda and Hilton, Poole contends that the

evidence clearly establishes that Jodie had no knowledge that he

killed Linda and Hilton, and therefore could not have willingly

participated in the conspiracy.                  The government argues that her

knowledge       was       established    inferentially        by    her   conduct     of

obstructing the criminal investigation of her husband.                       As noted

above, the district court held that the evidence was sufficient

as     to    each     count.      Although       the     evidence    underlying      the

conspiracy counts is not overwhelming, we conclude that it was

sufficient, given the inferences to be drawn in the government’s

favor.

        Jodie       provided     a      false        alibi   for    Poole     to     the

investigators; falsely advised a witness that he wore flip-flops

on     the   day     of    the   murder;       and    made   misleading     statements

regarding the disappearance of his shoes.                      A jury could infer

from these actions coordination between Jodie and Poole, and

that Jodie knew that Poole had murdered Linda and Hilton.                          To be

sure, the jury could reasonably have instead concluded based

upon this evidence that these were the actions of a concerned

wife    trying       to    exonerate     her    accused      husband.       Crucially,

however, it drew the opposite, also reasonable inference that



                                           17
the evidence supported a conspiracy to conceal her husband’s

involvement in the Hilton murders.

                                             b.

     As to whether an essential object of the conspiracy was to

commit    mail     and    wire     fraud,     the      district          court    found,    and

counsel for Poole acknowledged during oral argument, that Jodie

participated in efforts to obtain funds from Linda’s estate.

Given    the    deferential        standard       of    review       we    accord    to     jury

findings, this evidence was sufficient to allow the inference

that Jodie knew that an essential object of the conspiracy was

to defraud Linda’s estate.

                                             B.

     The       second     issue     presented          on    appeal       is     whether    the

district court (1) abused its discretion by admitting evidence

of Poole’s other acts, including his marital infidelity, lavish

lifestyle       and      straitened       financial              circumstance,      and     (2)

committed      plain     error     by    admitting          his     confidential         marital

communications to Jodie.             We consider each evidentiary ruling in

turn.

                                             1.

     We    first      address      whether    the       district         court    abused    its

discretion       by      admitting       evidence           of     Poole’s       other     acts.

Evidence    of    other     acts    is    admissible             under   Federal    Rules     of

Evidence 403 and 404(b) if four conditions are satisfied.

                                             18
        First, the evidence must be relevant to an issue, such
        as an element of an offense, and must not be offered
        to establish the general character of the defendant. .
        . . Second, the act[s] must be necessary in the sense
        that [they are] probative of an essential claim or an
        element of the offense.   Third, the evidence must be
        reliable.   Finally, the evidence's probative value
        must not be substantially outweighed by confusion or
        unfair prejudice in the sense that it tends to
        subordinate reason to emotion in the factfinding
        process.

United    States       v.    Gray,       405    F.3d    227,    239        (4th   Cir.   2005).

(internal       alterations         and    quotations         omitted).           An   error    in

admitting other-acts evidence is evaluated for harmlessness.                                    An

error is harmless if there is a “fair assurance” that the jury’s

judgment       was    not    substantially           swayed    by    the     error.      United

States v. Cole, 631 F.3d 146, 155 (4th Cir. 2011).

       All     four    conditions         are    satisfied          with    respect      to    the

evidence       of    Poole’s       marital      infidelity,         lavish    lifestyle        and

straitened       financial         circumstance.          The       evidence      of   adultery

went    to     motive       and    Poole’s      need    to     finance       an    extravagant

lifestyle.          See Gray, 405 F.3d at 239-40.                   It was also necessary

context for Evans’s testimony about the gun, Cafasso’s testimony

about    the    shoes,       and    to    explain      why    Atkinson       initially        lied

about Poole’s wearing flip flops the day of the murders.                                       The

marital infidelity evidence was not unduly prejudicial.                                  Two of

the witnesses only briefly described their sexual escapades with

Poole, and the district court issued an instruction not to use

that evidence improperly.                 Likewise, evidence of Poole’s lavish

                                                19
lifestyle and straitened financial circumstance went directly to

motive. 18      See United States v. Kuzlik, 468 F.3d 972, 974-75 (7th

Cir. 2006) (admitting evidence of financial problems to show

motive).

                                          2.

      Next, we address whether the district court committed plain

error      by   allowing   into   evidence       Jodie’s   testimony         regarding

marital confidences.          We have held that marital communications

are “presumptively confidential,” United States v. Parker, 834

F.2d 408, 411 (4th Cir. 1987), and that the “privilege reaches

those marital communications made in confidence and intended to

be confidential.”          United States v. Broome, 732 F.2d 363, 364

(4th Cir. 1984).           This circuit has held, however, that where

marital      communications    involve     the    commission      of    a    crime   in

which both spouses are participants, they do not fall within the

marital privilege.         Parker, 834 F.2d at 411.

      Poole contends that Jodie’s testimony is squarely within

the   marital     communications    privilege.         The   government         argues

that Poole’s statements to Jodie after the murders fall within

the     so-called      joint      crime        exception     to        the     marital



      18
        Although the testimony of Poole’s friends about his
“materialism” seems cumulative and less indicative of motive, we
conclude that such an error, if any, in its admission was
harmless.

                                          20
communications privilege, and that most of Poole’s statements

and conduct preceding the murder were not privileged.                    We agree.

       Jodie’s most damning testimony, that Poole asked her to lie

about       his   whereabouts,    is     taken       out     of     the     marital

communications privilege because she participated in the mail

and wire fraud.      The district court also did not plainly err in

admitting     Jodie’s   testimony      regarding     statements      and    conduct

preceding the murder.        At least some of the statements were not

privileged because Poole had made similar statements to others

and were therefore not intended to be confidential. 19                    Testimony

regarding     Poole’s   failure   to    tell     Jodie     about   the     costs   of

certain items did not go to any marital communication.                      Finally,

though Poole’s statements regarding his reasons for leaving the

Sheriff’s Department, and his lie that he was working nights at

Honda, were privileged, there was no plain error because they

added nothing material to the government’s case.

                                        C.

       The third issue presented on appeal is whether the district

court abused its discretion in enhancing Poole’s sentence to

life    imprisonment    by   applying        a   first-degree      murder    cross-



       19
        Poole disclosed to Cafasso the arguments with Jodie that
caused her to move out of their home temporarily.     Poole also
mentioned to investigators and to Cafasso that he was going to
visit Linda on July 31, 2006.

                                        21
reference, pursuant to sections 2B1.1(c)(3) and 2A.1(a)of the

Sentencing Guidelines.        We hold that it did not.

      Section 2B1.1(c)(3) provides, in relevant part, that if the

defendant was convicted under 18 U.S.C. § 1341, and the “conduct

set   forth   in   the    count     of   conviction       establishes     an   offense

specifically covered by another guideline . . . apply that other

guideline.”        As discussed above, Poole’s convictions for mail

and   wire    fraud      required       the    government    to   prove    beyond    a

reasonable doubt that he “feloniously and intentionally killed”

Linda and Hilton.         At sentencing, the district court found that

Poole    killed       Linda       and     Hilton        deliberately      and     with

premeditation,      and    thereby       committed       first-degree     murder,   an

offense specifically covered by section 2A1.A.

      Any kind of willful, deliberate, malicious and premeditated

killing is murder in the first degree.                   United States v. Wright,

594 F.3d 259, 267 (4th Cir. 2010) (quoting 18 U.S.C. § 1111).

Malice is established by conduct that is reckless, wanton, and a

gross deviation from a reasonable standard of care that warrants

a conclusion that the defendant was aware of a serious risk of

death or serious bodily harm.                  United States v. Williams, 342

F.3d 350, 356 (4th Cir. 2003).                     Premeditation requires a prior

design to commit murder and a period of reflection for at least

a short time before the killing.                   United States v. Sinclair, 301

Fed. Appx. 251, 254-55 (4th Cir. 2008).                     Under the Sentencing

                                              22
Guidelines,      the       sentencing      court      determines     whether      the

defendant committed first degree murder by a preponderance of

the evidence.        Wright, 594 F.3d at 267-68.

       Here, many facts support the conclusion that Poole behaved

willfully,     deliberately,        maliciously,      and    with   premeditation.

Poole’s behavior before the murders (making visits to Lakewood,

giving rise to the inference that he was attempting to determine

the best time to kill his victims) and on the day of the murders

(turning off his cell phone, giving rise to the inference that

he   was    trying    to   avoid    detection,     and   arguing    with   a   store

clerk, giving rise to the inference that he was trying to create

a    partial   alibi),      the    fact   that   he   had    sufficient    time    to

reflect on his actions as he was driving to the plantation, and

that    the    killings      were    committed     “execution       style,”    amply

justify the conclusion that he committed murder in the first

degree.       Indeed, we have previously upheld first-degree cross-

references under similar circumstances.                     See United States v.

Gray, 253 Fed. Appx. 321 (4th Cir. 2007). 20




       20
        Notably, in Gray, the court relied on the fact that the
indictment   “clearly  depicts  conduct  of   premeditation  and
deliberation by the defendant,” 253 Fed. Appx. at 323, and Poole
concedes that the language of the indictment in Gray and the
instant case mirror each other.

                                          23
                                             D.

       The       fourth    issue     presented       on     appeal       is    whether     the

district         court     erred,     procedurally             or      substantively,       in

sentencing Poole to a 400-year term of imprisonment.                                We review

a   sentence       for    reasonableness       under       an       abuse     of   discretion

standard.         Gall v. United States, 552 U.S. 38, 51 (2007).                             We

hold    that       the    sentence     imposed       was       both     procedurally       and

substantively reasonable.

                                             1.

       Poole      argues    that    the    district        court       improperly     applied

section 5G1.2(d) of the Sentencing Guidelines, which allows the

court to impose sentences consecutively if the sentence imposed

on the count carrying the highest statutory maximum is less than

the    total      punishment,       “but   only   to       the      extent     necessary    to

produce      a    combined    sentence       equal    to       the     total   punishment.”

Where, as here, the “total punishment” is life imprisonment, the

Guidelines do not specify whether a district court may impose

consecutive sentences exceeding the defendant’s life expectancy.

Poole   argues       that    the    phrase    “only       to     the    extent     necessary”

should be interpreted to limit the imposition of consecutive

sentences to the defendant’s life expectancy, as measured by

state    law.        The     government      points       to     precedent         from   other

circuits recognizing the district court’s discretion to impose a

sentence         functionally       equivalent        to       life      imprisonment       by

                                             24
imposing    consecutive      sentences,        even    where    they    exceed      the

defendant’s natural life span.              See United States v. Lewis, 594

F.3d 1270, 1275-76 (10th Cir. 2010) (310 years); United States

v. Thompson, 523 F.3d 805, 812-14 (7th Cir. 2008) (190 years).

       We agree with our sister circuits in this regard.                          This

view appears consistent with our decisions, where we noted that

the    then-mandatory     Sentencing           Guidelines      would    obligate      a

district    court   to   impose     consecutive        sentences      exceeding     the

defendant’s    life   span    to    reach      the    total   punishment     of   life

imprisonment.       See, e.g., United States v. Hall, 39 Fed Appx.

32, 34 (4th Cir. 2002); United States v. Gibbs, 22 Fed. Appx.

96, 98 (4th Cir. 2001). 21

                                          2.

       Finally, Poole argues that because his life expectancy is

but a fraction of his sentence, the term of imprisonment is

substantively unreasonable.             Again, we disagree.        Section 2A1.1,

comment (n.2(a))of the Sentencing Guidelines expressly provides

that    life   imprisonment        is    the    appropriate      sentence     for    a

premeditated     killing.          See     Wright,      594    F.3d     at   267-269

(upholding life term based on cross-reference to section 2A1.1).

As has been noted, a sentence of such length is, for “practical


       21
        We have expressly held that “stacking” sentences under
section 5G1.2(d) remains reasonable post-Booker. United States
v. Allen, 491 F.3d 178, 195 (4th Cir. 2007).

                                          25
purposes . . . a life sentence, and that’s how we view it.”

United States v. Betcher, 534 F.3d 820, 827-28 (8th Cir. 2008);

see also United States v. Hanna, 353 Fed Appx. 806, 807 (4th

Cir. 2009)(440-year sentence); United States v. Schellenberger,

246 Fed. Appx. 830, 833 (4th Cir. 2007) (100-year sentence).



                              III.

     For the foregoing reasons we affirm the judgment of the

district court.

                                                         AFFIRMED




                               26
