Argued: October 25, 2016
from the United States District Court for the District of
South Carolina, at Columbia. David C. Norton, District Judge.
William Walter Wilkins, NEXSEN PRUET, LLC, Greenville, South
Carolina, for Appellant.
Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Kirsten E. Small, NEXSEN PRUET, LLC, Greenville, South
Carolina, for Appellant.
R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Criminal Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; William N. Nettles,
United States Attorney, J.D. Rowell, Assistant United States
Attorney, Jane B. Taylor, Assistant United States Attorney,
Tommie D. Pearson, Assistant United States Attorney, Nancy C.
Wicker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
AGEE, DIAZ, and THACKER, Circuit Judges.
Pinson appeals his convictions for conspiracy to participate
in a racketeering enterprise under the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), government
program theft, honest services fraud, mail and wire fraud,
money laundering, and making false statements to federal
agencies. He argues that there was insufficient evidence for
a jury to convict him, and also contends that the district
court constructively amended the original indictment,
necessitating a new trial.
conclude that there was insufficient evidence to support
Pinson's convictions for RICO conspiracy and government
program theft, and accordingly vacate those convictions and
remand for resentencing. In all other respects, we affirm.
case arises out of Pinson's various business
relationships and ventures from 2006 to 2012, including a
diaper business (Supremes, LLC), a real estate development
company (Village at River's Edge or "VRE"), a
consulting business (Noel Group, LLC), and an investment
company (Brixstone Group, LLC). During this time, Pinson also
served on the Board of Trustees of South Carolina State
University ("SCSU"), a state-supported school. The
charges focus on Pinson's involvement with four ventures:
(1) SCSU's homecoming concert; (2) SCSU's purchase of
a luxury resort; (3) Supremes, LLC's private diaper
business; and (4) VRE's real estate project. We summarize
each venture in turn.
annual homecoming concert had suffered from poor attendance
in the past. In mid-2010, one of Pinson's closest
friends, Eric Robinson, introduced him to concert promoter
Willie Joy. After discussing promotion of the 2010 Homecoming
concert with Robinson and Joy, Pinson contacted his friend
Edwin Givens, who served as SCSU's General Counsel. Both
Givens and Pinson persuaded other University officials to
meet with Joy and Robinson about hiring them to promote the
2010 Homecoming concert. Their efforts, however, did not
succeed because the University had already selected a
promoter for 2010.
2011, Pinson and Givens tried again to get SCSU to hire Joy
and Robinson and this time, succeeded. Joy and Robinson's
company, W.E. Entertainment, began contract negotiations with
SCSU in mid-2011. In August 2011, W.E. Entertainment signed a
concert promoter contract with SCSU, where W.E. would receive
$12, 500 upon signing, $12, 500 on the day of the concert,
and 40% of concert profits. Givens signed the contract on the
Robinson had separately agreed to share any concert profits
with Givens and Pinson. Additionally, both Givens and Pinson
expected to get a portion of the $12, 500 signing payment.
Joy refused to share the signing payment, but Robinson gave
$500 cash to Givens in an envelope outside a hotel. In
September 2011, Pinson texted Robinson with his bank account
information, and Robinson went on to transfer $500 to
Pinson's account as well. The concert took place on
October 7, but did not generate a profit.
this time, SCSU also considered buying a new off-campus
retreat facility. Michael Bartley, Chief of Police at SCSU,
knew both Pinson and Richard Zahn, a Florida developer who
owned a luxury resort in South Carolina called
"Sportsman's Retreat." After Zahn put
Sportsman's Retreat up for sale, Bartley took various
SCSU officials to view the property, including the University
President. Bartley also encouraged Pinson to meet with Zahn.
invited Pinson, Bartley, and others to Florida for
entertainment at Zahn's expense, and afterwards talked to
Pinson over the phone about doing various business deals
together. Zahn told Pinson he would sell Sportsman's
Retreat for below its appraised value, and discussed how to
guide University officials through the sale. Both Bartley and
Pinson expected a commission in exchange for helping with the
sale; for example, Zahn testified that Pinson asked him for a
Porsche Cayenne. Pinson tried persuading University officials
to buy the property but told Bartley that he would recuse
himself when the Board of Trustees voted on the matter.
Pinson also asked Givens for help in facilitating the
transaction, promising him some funds from the sale. On
October 31, 2011, at Pinson's request, Givens sent a
letter to Zahn indicating SCSU's intent to purchase
Sportsman's Retreat. Ultimately, SCSU did not purchase
his involvement in the University, Pinson helped manage a
diaper business called Supremes, LLC. The prior owner of the
business, Collin Brown, had struggled to make a profit. In
2008, Brown met with Robinson, who eventually introduced him
to Pinson and businessmen Robert Williams and Lance Wright.
Together, the group planned to relocate the business to
Marion County, South Carolina and revitalize it.
with the relocation, Pinson met with Marion County officials
to obtain a state or federal grant. In exchange for the jobs
expected to be brought to the area, the County agreed to help
fund the retrofit of an aging commercial building that the
County owned, so that it could be used by Supremes, LLC as a
diaper factory. In September 2009, the County signed a grant
award and performance agreement with Supremes, LLC and the
South Carolina Coordinating Council for Economic Development
("CCED"), which provided the money. The grant
prohibited using the funds for payroll, manager bonuses,
owner repayment, or for compensating state or federal
officials. Wright persuaded a colleague named Phillip Mims to
serve as project manager for the retrofit. Mims's job was
to receive the invoices from the contractors, and package and
submit them to the County.
and Williams testified that they, Pinson, and Wright
repeatedly submitted inflated or false invoices to Marion
County for work not actually completed. Some of this money
went directly to Mims's company, PDM Management, while
other funds were issued to the Noel Group, a company owned by
Pinson. Neither PDM Management nor the Noel Group, however,
did any significant work on the retrofit. As a result of
these false invoices, Marion County (using the grant money it
received) sent a $62, 100 check to the Noel Group. Pinson in
turn sent checks ranging from $5, 000 to $10, 000 to Mims,
Williams, and Wright from the Noel Group's bank account.
at River's Edge
Pinson also helped manage a housing development known as the
Village at River's Edge. In 2006, Pinson and another
business partner had purchased a tract of land for VRE in
Columbia, South Carolina. After the other partner sold his
interest, Wright and Williams invested in VRE.
soon began talks with the Columbia Housing Authority
("CHA"), a local quasi-governmental agency which
provides subsidized housing to low-income residents. CHA had
just received a $10 million federal grant from the Department
of Housing and Urban Development. In 2010, VRE contracted
with CHA to build numerous housing units, 60 of which would
be owned by the Authority. Under the contracts, CHA agreed to
provide $5.6 million in construction costs and a $381, 000
developer's fee from its federal grant money to VRE. Mims
served as a project manager for VRE, which also hired a
company named SK Builders to actually build the units. VRE
submitted a monthly pay application to CHA on a federal
housing grant form documenting overall expenses, so that CHA
could send VRE payments. VRE, in turn, was required to pay SK
Builders for its work.
2011, SK Builders started work and began submitting invoices
to VRE. Pinson and Mims, on behalf of VRE, submitted numerous
pay applications to CHA on the federal form, certifying that
VRE had paid subcontractors for their work. Of the funds VRE
received from CHA, some were wired to Pinson's personal
account or withheld from SK Builders. After a period of
complaints, SK Builders contacted CHA directly and threatened
a work-stoppage; when CHA contacted Pinson about the issue,
he admitted that he had "juggled" funds and
promised to make catch-up payments. Ultimately, CHA began
paying SK Builders directly, and while the project was
eventually completed, SK Builders was never paid in full.
jury returned an indictment charging Pinson with the
following crimes under Title 18 of the United States Code:
(1) conspiracy to engage in racketeering (RICO conspiracy) in
violation of § 1962(d); (2) theft from government
programs in violation of § 666; (3) extortion in
violation of § 1951; (4) honest services fraud in
violation of § 1346; (5) mail and wire fraud in
violation of §§ 1341, 1343; (6) money laundering in
violation of §§ 1956, 1957; and (7) false
statements in violation of § 1001. The government relied
on statements and evidence provided by many of Pinson's
colleagues, including Williams, Mims, Zahn, Bartley, and
Givens, who testified in exchange for lesser sentences.
a two-week jury trial, the government presented evidence from
these witnesses and University employees, F.B.I. agents, and
other government officials, as well as records of
Pinson's financial transactions. The evidence also
included records of Pinson's phone calls and text
messages, obtained through a federal wiretap conducted from
July to November 2011. Pinson then moved for a judgment of
acquittal, which the district court denied. Following four
days of deliberations, the jury convicted Pinson on Counts 1
(RICO conspiracy), 2 and 3 (government program theft), 12 and
18 (honest services fraud), 25-34 (mail and wire fraud),
35-41 (money laundering), and 43-46 and 48-50 (false
statements). Robinson, Pinson's co-defendant, was
acquitted of all charges. The court sentenced Pinson to sixty
months' imprisonment on each count to run concurrently,
and ordered him to pay $340, 743.02 in restitution and
penalties. This appeal followed.
of the Evidence
first challenges the district court's denial of his
motion for a judgment of acquittal, a decision we review de
novo. United States v. Reed, 780 F.3d 260, 269 (4th
Cir. 2015). In considering Pinson's challenge to the
jury's verdict, we view the evidence in the light most
favorable to the government. United States v.
Barefoot, 754 F.3d 226, 233 (4th Cir. 2014). Through
this lens, we must sustain a conviction if the record
contains "substantial evidence, " that 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. Chittenden, 848 F.3d 188, 195 (4th
Cir. 2017) (quoting United States v. Jaensch, 665
F.3d 83, 93 (4th Cir. 2011)). Although this standard presents
a "heavy burden, " reversal is appropriate if
"the prosecution's failure is clear."
Id. (quoting Burks v. United States, 437
U.S. 1, 17 (1978)).
reviewing the record, we find sufficient evidence to support
Pinson's convictions for honest services fraud, mail and
wire fraud, money laundering, and false statements. We are
not so persuaded as to Pinson's convictions for RICO
conspiracy and government program theft, and therefore vacate
first consider Pinson's RICO conspiracy conviction.
Pursuant to 18 U.S.C. § 1962(d), to prove a RICO
conspiracy, evidence must show the existence of a RICO
"enterprise" in which the defendant conspired to
participate, and that the defendant conspired that a member
of the enterprise would perform at least two racketeering
acts constituting a "pattern of racketeering
activity." Salinas v. United States, 522 U.S.
52, 62 (1997); United States v. Cornell, 780 F.3d
616, 621 (4th Cir. 2015) (quoting United States v.
Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)). Although
such "conspiracy may exist even if a conspirator does
not agree to commit or ...