UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4418

DAVID HUNTER MAUNEY, III,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-97-251)

Submitted: March 31, 2000

Decided: April 18, 2000

Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert Daniel Boyce, BOYCE & ISLEY, Raleigh, North Carolina,
for Appellant. Walter C. Holton, Jr., United States Attorney, Douglas
Cannon, Robert M. Hamilton, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

David Hunter Mauney was convicted on twenty-nine counts of
mail fraud, wire fraud, conspiracy to commit mail and wire fraud, and
money laundering, in violation of 18 U.S.C. §§ 2, 371, 1341, 1343,
1346, 1957(a) (1994), and sentenced to a term of sixty months'
imprisonment and a term of seventy-eight months' imprisonment to
be served consecutively. On appeal, Mauney challenges the district
court's denial of his motion for a judgment of acquittal, and the dis-
trict court's denial of a motion to suppress testimony pursuant to
United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). Mauney
also appeals the district court's finding of loss to Mauney's employer,
application of a sentencing enhancement for obstruction of justice,
and refusal to depart downward in sentencing.

The standard of review for a denial of a motion for judgment of
acquittal is "whether there is substantial evidence (direct or circum-
stantial) which, taken in the light most favorable to the prosecution,
would warrant a jury finding that the defendant was guilty beyond a
reasonable doubt." United States v. MacCloskey, 682 F.2d 468, 473
(4th Cir. 1982). To prove a violation of 18 U.S.C.§§ 1341 or 1343,
the government must prove fraudulent intent, which may be inferred
from the totality of the circumstances rather than by direct evidence.
See United States v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993);
United States v. Scott, 730 F.2d 143, 147 (4th Cir. 1984). The Gov-
ernment presented sufficient evidence from which the jury could rea-
sonably infer that Mauney intended to defraud his employer. The
evidence was also sufficient to enable a jury to find a conspiracy
based on Mauney's joint activities with and acceptance of kickbacks
from Edward Seymour.* Furthermore, the Government produced suf-
_________________________________________________________________
*Mauney's appeal does not challenge the sufficiency of the evidence
in regard to a conspiracy between Mauney and his other co-defendants.

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ficient evidence showing that Mauney's kickbacks were included in
the price of the contracts on which his employer was to pay vendors,
and, accordingly, showed a loss to Mauney's employer.

Mauney challenges the application of 18 U.S.C. § 1346 (1994) to
schemes to defraud private corporations. Section 1346 states that "the
term scheme or artifice to defraud includes a scheme or artifice to
deprive another of the intangible right of honest services." 18 U.S.C.
§ 1346. The plain language of § 1346 does not restrict its application
to public officials. Moreover, courts have consistently found the fraud
statute at issue applicable to private sector conduct both before enact-
ment of § 1346, see United States v. Shamy , 656 F.2d 951, 957 (4th
Cir. 1981), and subsequently, see United States v. Frost, 125 F.3d
346, 366 (6th Cir. 1997); United States v. Jordan, 112 F.3d 14 (1st
Cir. 1997) (affirming mail fraud conviction of corporate officer who
defrauded his company). And even if Mauney were correct in his
view that if the statute reaches private sector conduct it only covers
private conduct causing tangible loss, this requirement would be met
in this case for reasons already discussed. Accordingly, we find the
district court did not err in denying Mauney's motion for acquittal.

Mauney next argues that the district court should have suppressed
the testimony of his co-defendant, Edward Seymour, who testified
against Mauney pursuant to a plea agreement. The basis for Mauney's
argument is the Tenth Circuit's panel decision in United States v. Sin-
gleton, 144 F.3d 1343 (10th Cir. 1998) (holding such government
action to be in violation of 18 U.S.C. § 201(c)). We definitively
rejected this argument in United States v. Richardson, 195 F.3d 192,
195-97 (4th Cir. 1999), cert. denied, 120 S. Ct. 837 (2000). Moreover,
the panel decision in Singleton has since been overruled. See United
States v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), cert.
denied, 119 S. Ct. 2371 (1999). Accordingly, the district court did not
err in denying the motion to suppress.

Mauney challenges the increase in his base offense level under U.S.
Sentencing Guidelines Manual § 2F1.1(b)(1) (1998), arguing that his
employer suffered no loss from Mauney's activities."Loss" under
USSG § 2F1.1(b)(1) is the actual, probable, or intended loss to the
victim. See United States v. Parsons, 109 F.3d 1002, 1004 (4th Cir.
1997). However, "the loss need not be determined with precision" and

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"the offender's gain from committing the fraud is an alternative esti-
mate that ordinarily will underestimate the loss." U.S. Sentencing
Guidelines Manual, § 2F1, comment. (n. 9). We review de novo the
district court's legal interpretation of the term"loss." See United
States v. Castner, 50 F.3d 1267, 1274 (4th Cir. 1995). The district
court's determination of the amount of loss is a factual matter, and
therefore we review for clear error. See id. The evidence at trial
clearly demonstrated that Mauney's kickbacks and commissions were
included in the contract prices due from his employer. Accordingly,
we find the district court did not err in attributing a loss to Mauney's
employer and increasing Mauney's base offense level pursuant to
§ 2F1.1(b)(1) of the Sentencing Guidelines.

Mauney challenges the district court's application of a sentencing
enhancement for obstruction of justice. Whether Mauney's conduct
amounted to an obstruction of justice is a legal question that is
reviewed de novo. See United States v. Saintil , 910 F.2d 1231, 1232
(4th Cir. 1990). We review the underlying factual findings for clear
error. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989). The district court, after thoroughly considering all of the argu-
ments and testimony presented, found Mauney's testimony untruthful
when Mauney denied that any of the payments he received were kick-
backs or in any way related to his employer's cotton contracts. The
district court's statements implicitly found each element of perjury,
and therefore the enhancement was not clearly erroneous.

Finally, Mauney challenges the district court's refusal to depart
downward in sentencing on the basis that Mauney's employer suf-
fered no loss as a result of Mauney's kickbacks. We review the dis-
trict court's decision for abuse of discretion. See Koon v. United
States, 518 U.S. 81, 96-100 (1996). As described above, the district
court found, based on substantial evidence, that Mauney's scheme
caused a loss to his employer. The district court calculated that loss
to be approximately $1,400,000. Because such a finding was consis-
tent with the evidence, we find the district court did not abuse its dis-
cretion in failing to depart downward.

We affirm Mauney's conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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