                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4136


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM BILL F. ADAMS,      JR.,   a/k/a     Bill   F.   Adams,   a/k/a
William F. Adams,

                Defendant – Appellant,

          and

TOMMY SKEENS; JERRY SKEENS,

                Petitioners.



                               No. 15-4137


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN B. WARD,

                Defendant – Appellant,

          and

TOMMY SKEENS; JERRY SKEENS,

                Petitioners.
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon.    James P. Jones, District
Judge. (1:12-cr-00044-JPJ-PMS-1; 1:12-cr-00044-JPJ-PMS-5)


Submitted:   December 22, 2015          Decided:   January 5, 2016


Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Timothy J. LaFon, CICCARELLO, DEL GIUDICE & LaFON, Charleston,
West Virginia; Michael A. Bragg, BRAGG LAW, PLC, Abingdon,
Virginia, for Appellants.      Anthony P. Giorno, United States
Attorney,   Jennifer  R.   Bockhorst,  Assistant  United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                 2
PER CURIAM:

      In these consolidated appeals, William “Bill” F. Adams and

John B. Ward appeal their convictions for conspiracy to defraud

the United States, in violation of 18 U.S.C. § 371 (2012), and

structuring      of     currency        transactions          to    evade        reporting

requirements, in violation of 31 U.S.C. § 5324 (a)(3) (2012),

contending     the     evidence        was    insufficient         to    sustain        their

convictions.          Additionally,          Adams    and    Ward       claim    that    the

Government     did    not   prove       a    single     conspiracy,        but    actually

presented     evidence      of     multiple          conspiracies.          Adams       also

challenges the district court’s rulings on evidentiary matters

and   the    Government’s        use    of    leading       questions.          Ward    also

challenges     his    conviction        on     the    basis    that       the    financial

structuring committed by his coconspirators was not reasonably

foreseeable to hold him criminally liable under the Pinkerton *

doctrine.

      We affirm.

                                             I.

      A jury convicted Adams and Ward of conspiring to defraud

the United States and of multiple counts of structuring currency

transactions     to    evade     reporting        requirements.            The    district




      *   Pinkerton v. United States, 328 U.S. 640 (1946).



                                              3
court sentenced Adams and Ward to a 36-month prison term for

each offense, running concurrently.

      These    crimes     arose    out   of    a   check-cashing          scheme   that

involved      coal   mining    companies       and    mine     supply      businesses

located in Virginia and West Virginia. Under this scheme, mine

suppliers provided false invoices to certain mining companies,

and the companies paid the suppliers with a check.                         In return,

the mine suppliers paid ninety percent of the check amount in

cash to the mining company, keeping ten percent as its fee.

This scheme allowed the mining companies and their owners to

avoid payment of income tax on the cash received and benefit

from fictitious business tax deductions.

      At the end of the Government’s case in chief and at the end

of the trial, Adams and Ward moved the district court for a

judgment   of     acquittal    pursuant       to   Federal         Rule   of   Criminal

Procedure 29.        Adams and Ward also moved the district court for

a new trial pursuant to Federal Rule of Criminal Procedure 33,

arguing    the    evidence     presented      at     trial    supported        multiple

conspiracies (rather than the charged single conspiracy) and was

highly prejudicial, the Government improperly presented its case

with leading questions, the district court erred when it limited

the   testimony      of   Adams’   expert     witness,       and    the   case   lacked

sufficient evidence to support the verdicts.                   Finding sufficient



                                         4
evidence for the convictions and no error, the court denied the

motions.

                                            II.

       A.    Sufficient   evidence   supports              the        conspiracy     and
             structuring convictions

       We review de novo the denial of Adams’ motion for judgment

of acquittal.          United States v. Green, 599 F.3d 360, 367 (4th

Cir. 2010).      Viewing the evidence in the light most favorable to

the    Government,      we   must       determine   whether     the    conviction     is

supported by “substantial evidence,” where “substantial evidence

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. Young, 609

F.3d 348, 355 (4th Cir. 2010).

       Substantial evidence supports the jury’s finding that Adams

and Ward participated in the conspiracy alleged in Count I of

the superseding indictment.                To establish a conspiracy under §

371, the Government must prove (1) an agreement between two or

more    people    to    commit      a    crime,     and   (2)    an    overt   act   in

furtherance of the conspiracy.               United States v. Cone, 714 F.3d

197, 213 (4th Cir. 2013).                  A single conspiracy exists where

there is one overall agreement, or one general business venture.

United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988).                          The

government       can    prove       a    single     conspiracy        by   direct     or


                                             5
circumstantial         evidence      that   a    defendant      knew   its   “essential

object”     by       demonstrating     a    “tacit      or    mutual   understanding”

between the defendants and other conspirators, even where the

connection is slight.             United States v. Hackley, 662 F.3d 671,

679 (4th Cir. 2011).

      In this case, the evidence supports a single conspiracy —

to defraud the United States – through the agreement made among

Ward, Adams, and others, and their numerous overt acts involving

various cash transactions.              The Government presented evidence to

establish        a    single   conspiracy        among       bookkeepers,    coal   mine

operators, and sellers of cash located on and around the border

of   West   Virginia       and    Virginia.        The       conspirators,    including

Adams and Ward, worked together to ensure that the coal mine

operators maintained a large supply of cash to conduct business

in such a way as to avoid taxes, to create paperwork to hide the

movement of untaxed cash through their businesses, and to make

sure their scheme went undetected.

      To prove this conspiracy charge, the Government presented

substantial written evidence in the form of handwritten notes on

timesheets,          the   general     ledgers     of    three     mining     companies

affiliated with Adams and Ward, invoices, and records of the

checks to pay those invoices.               The Government also presented its

case through the testimony of numerous witnesses who spoke about



                                             6
Ward’s and Adams’ working relationship, and their connection to

the cash suppliers involved in the conspiracy.

       The district court also instructed the jury on a multiple-

conspiracy         theory       of    defense    to     support       Adams’        and   Ward’s

argument      that      they     were,     at    most,      members        of   separate       and

uncharged         conspiracies.          The    jury    thus       could    have     found     the

existence         of   multiple,        separate      conspiracies          instead       of   one

overarching conspiracy.                 Nevertheless, the jury found Adams and

Ward guilty of the conspiracy charge.                        Accordingly, the evidence

presented         at    trial        supports    a    single       conspiracy,        and      the

district court did not err in denying the motions for judgment

of acquittal or new trial.

       Substantial evidence also supports the jury’s finding that

Adams       and    Ward        structured       currency       transactions          to     evade

reporting         requirements.          Pursuant      to    31     U.S.C.      §   5324(a),     a

person is not permitted to structure currency transactions in

such    a    way       to     avoid    federal       reporting       requirements.             The

government must prove three elements to support a conviction for

this type of structuring: (1) the defendant knowingly engaged in

structuring;            (2)     the      defendant          knew     of      the      reporting

requirements           under    federal     law;      and    (3)    the     purpose       of   the

transaction was to evade the requirements.                                United States v.

$79,650.00 Seized from Bank of Am. Account Ending in 8247 at

Bank of Am., 7400 Little River Tpk., Annandale, Va., 650 F.3d

                                                 7
381,     384     (4th      Cir.      2011)     (citing          without        criticism         the

instructions          of   the    trial     judge);   see           also   United    States       v.

MacPherson, 424 F.3d 183, 189 (2d Cir. 2005).

       The aiding and abetting statute, which is also referenced

in     the    structuring          counts,     provides         “[w]hoever          commits       an

offense       against      the     United    States       or    aids,       abets,    counsels,

commands, induces or procures its commission, is punishable as a

principal,” and “[w]hoever willfully causes an act to be done

which    if     directly         performed    by    him        or    another       would    be    an

offense        against       the     United     States,             is     punishable       as     a

principal.”       18 U.S.C. § 2 (2012).               Thus, even if Adams and Ward

did    not     make    the    structured       withdrawals            of    cash    themselves,

getting the cash providers to do so for them makes them equally

as culpable.

       The     record        makes     clear       that        the       Government        offered

sufficient evidence at trial from which a reasonable juror could

have found Adams and Ward guilty of structuring.                                   First, Adams

and Ward routinely obtained cash in an amount of $10,000 or

less.        Second, after the bank submitted one CTR each for Adams

and    Ward,     they      kept    their     transactions            under    $10,000.           Two

cooperating witnesses involved in the scheme testified that they

purchased cash in order to avoid paying taxes and triggering

bank reporting requirements.                 From this evidence, the jury could

infer Adams and Ward knew about the reporting requirements and

                                               8
sought to avoid them.                Moreover, the attempt to hide illegal

activity is itself evidence that they knew their conduct was

illegal.        United States v. Beidler, 110 F.3d 1064, 1069 (4th

Cir. 1997).        Finally, the third element—that the purpose of the

transactions        was       to     avoid       the    reporting       requirement—is

established       by    the     same    evidence       that    satisfied      the   second

element.        Beidler, 110 F.3d at 1068-69.                   Adams and Ward could

have withdrawn cash in amounts greater than $10,000, but they

instead chose to go through the cash providers.                               The record

therefore contains sufficient evidence to uphold the structuring

convictions.

       B.      The district court did not abuse its discretion when
               ruling on evidentiary matters or leading questions

       “This     Court     reviews       evidentiary          rulings   for    abuse    of

discretion.”       United States v. Hill, 322 F.3d 301, 304 (4th Cir.

2003).

       Federal Rule of Evidence 404(b) prohibits using evidence of

a crime, wrong, or other act “to prove a person’s character in

order to show that on a particular occasion the person acted in

accordance       with     the      character.”         Fed.     R.   Evid.    404(b)(1).

Adams’ argument concerning alleged Rule 404(b) evidence relates

to     his     argument       that     the   Government         improperly     presented

evidence of multiple conspiracies.                     Specifically, Adams argues

that     the    Government’s         Rule    404(b)      Notice      “shows    that    the


                                             9
presentation of evidence . . . as to his personally structured

transactions . . . was a separate crime.”

       Because Rule 404(b) applies to other crimes, wrongs, or

acts, it does not apply if the proponent offers evidence of the

charged act itself.          United States v. Lighty, 616 F.3d 321, 352

(4th   Cir.    2010).        Here,    the    Government    offered       evidence     of

Adams’ structured transactions and cash wages, not evidence of

“other crimes.”         These acts were intrinsic to the conspiracy

charge and the structuring counts.                Indeed, the district court

and counsel briefly discussed this issue when preparing jury

instructions, and no one objected to removing the Rule 404(b)

instruction.          Rule     404(b)    thus    does     not     extend    to    these

intrinsic acts, which are not “other acts” and were not offered

to prove Adams’ propensity to commit the charged offenses.                          As a

result, the district court did not abuse its discretion or err

when it admitted this evidence.

       Adams   also     contends      the    district     court     erred    when     it

limited    testimony      by    Dr.     Robert    Rufus,    a     certified      public

accountant,     because      Federal     Rule    of    Evidence    702     allows    for

testimony by a person who is an “expert by knowledge, skill,

experience, training or education” as long as “the testimony is

based on sufficient facts or data.”                   Adams further contends the

only prohibition on expert testimony in criminal cases is that

“an expert witness must not state an opinion about whether the

                                            10
defendant did or did not have a mental state or condition that

constitutes an element of the crime charged or of a defense.”

Fed. R. Evid. 704(b).            Because Rufus did not plan to testify as

to the mental state or condition of the defendant, Adams argues

his testimony should not have been limited.                        Adams also argues

that    Rufus’      testimony        would    have   impeached      Kermit      Wiley,   a

mining company supplier who testified to his provision of false

invoices for companies and other involvement in the conspiracy,

and     the    denial     of     that        testimony      prejudiced       Adams     and

constituted clear error.

       A review of the record shows the district court properly

excluded      the   chart      and    potential      corresponding       testimony       in

accordance with Rule 1006.               The Rule states, in relevant part,

“The proponent may use a summary, chart, or calculation to prove

the content of voluminous writings, recordings, or photographs

that cannot be conveniently examined in court.”                         Fed. R. Evid.

1006.      Thus, Rule 1006 permits the admission of charts into

evidence as a surrogate for underlying voluminous records that

would otherwise be admissible into evidence.                        United States v.

Janati, 374 F.3d 263, 272 (4th Cir. 2004).

       Here,   the      district      court    found     that     the   chart    did   not

summarize voluminous records.                  Additionally, the chart focused

on a Memorandum of Interview documenting certain out-of-court

statements       made    by    Kermit    Wiley.        At    no    point   during      his

                                              11
testimony, however, did Wiley discuss the details set forth in

that    Memorandum.           Thus,        the        chart    relied      on      inadmissible

evidence.

       The    district       court     also       concluded         that     the     chart    and

proposed testimony did not amount to “expert” opinion evidence.

The    district      court     surmised       that         Rufus    intended         to   recount

inadmissible testimony of another witness for the purpose of

impeaching that witness’ testimony.                           This is not an “expert”

opinion      based      on   otherwise       inadmissible             facts     or    data    for

purposes of Rule 703.             See United States v. Johnson, 587 F.3d

625, 635 (4th Cir. 2009) (“It is nonetheless appropriate for

district courts to recognize the risk that a particular expert

might   become       nothing    more       than        a   transmitter        of     testimonial

hearsay and exercise their discretion in a manner to avoid such

abuses.”).        Therefore,         the    district          court    did    not     abuse   its

discretion when it excluded Rufus’ chart summarizing the Kermit

Wiley Transactions.

       This court reviews rulings on the use of leading questions

for an abuse of discretion.                  United States v. Durham, 319 F.2d

590, 592 (4th Cir. 1963).                  “Generally, abuse of discretion is

not found in the absence of prejudice or clear injustice to the

defendant.”       Id.

       Adams argues the “large number of leading questions . . .

substantially        affected    [his       rights]           and   the    same      constitutes

                                                 12
clear   and    prejudicial           error.”        Adams    does    not    identify    any

individual questions or objections that he disputes.                                Rather,

his argument seems to be that taken altogether, the Government

presented its case through leading questions “without actually

getting any substantive testimony from the witnesses.”

      Nevertheless, a review of the record shows that during the

Government’s           case    in     chief,    Adams’       counsel       made    numerous

objections        to    leading      questions,      some    of    which    the    district

court sustained, and some of which the court overruled.                               Adams

has   not    explained,         nor    does    the   record       show,    how    prejudice

occurred     or    how    the       district    court   abused      its    discretion       in

ruling on these objections.               Accordingly, the district court did

not abuse its discretion in ruling on the objections, nor did

its rulings result in prejudice to Adams.

      C.      The    coconspirators’  financial   structuring   was
              reasonably foreseeable to hold Ward accountable under
              the Pinkerton doctrine.

      The    Pinkerton         doctrine       imposes   vicarious         liability    on    a

coconspirator for the substantive offenses committed by other

members of the conspiracy when the offenses are during and in

furtherance of the conspiracy.                  Pinkerton v. United States, 328

U.S. 640, 646–47 (1946); see also Nye & Nissen v. United States,

336   U.S.    613,       618    (1949)     (stating         Pinkerton      “held    that     a

conspirator could be held guilty of the substantive offense even

though he did no more than join the conspiracy, provided that

                                               13
the   substantive     offense       was   committed       in    furtherance      of    the

conspiracy     and    as   a   part    of    it”);    accord      United      States    v.

Chorman, 910 F.2d 102, 110 (4th Cir. 1990).

      Ward argues there “is no evidence that Ward himself engaged

in any structured withdrawal transaction,” and “there is not

evidence that Ward was aware that cash withdrawals over $10,000

had to be reported.”

      Ward’s    argument       is     without      merit.        In    this    case,     a

significant portion of the conspiracy involved purchasing large

amounts of cash and falsified invoices to hide the movement of

cash.     Therefore, it was reasonably foreseeable that the cash

sellers     would     undertake       methods       to    avoid       detection       when

acquiring the cash.

      Furthermore, in accordance with Pinkerton, the jury could

have convicted Ward and Adams based solely on the substantive

structuring offenses committed by their coconspirators in the

course of and in furtherance of the conspiracy.                          The district

court properly instructed the jury on this issue.                            Cooperating

witnesses who pleaded guilty to participation in the conspiracy

testified      that   they     had     structured        cash    out    of    financial

institutions to avoid reporting requirements, and that they sold

this structured cash to Adams and Ward.                     Whether Adams or Ward

personally made the withdrawals is irrelevant.                        The evidence is

sufficient     that   Ward     used    the       structured     cash   to     further    a

                                            14
conspiracy and defraud the United States, and the possibility

that cash providers might have structured the cash that they

were selling to Ward and Adams was reasonably foreseeable.

                                          III.

     Viewing the evidence in the light most favorable to the

Government, we conclude that a rational jury certainly could

have found substantial evidence beyond a reasonable doubt to

convict    Adams    and    Ward    of    conspiracy      to       defraud    the    United

States, and for the substantive counts of structuring currency

transactions       to    evade     reporting       requirements.             We    further

conclude that the district court did not abuse its discretion or

violate    Federal       Rule     of    Evidence     404(b)        when     it    admitted

evidence intrinsic to these crimes.                     Similarly, the district

court did not abuse its discretion when it excluded a chart and

limited    the   testimony       of    Dr.    Robert    Rufus      regarding       certain

transactions and inadmissible evidence, nor did it abuse its

discretion when it ruled on objections to leading questions.

     Accordingly, we affirm the district court’s judgments.                             We

dispense    with        oral    argument      because       the     facts    and     legal

contentions      are    adequately      presented      in    the    materials       before

this court and argument would not aid the decisional process.



                                                                                  AFFIRMED



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