Fourth Circuit Affirms Finding of No Fifth Amendment Violation in Connection with 45-Year Conviction for $100 Million Investment Scheme

The US Court of Appeals for the Fourth Circuit recently affirmed a defendant’s conviction and 45-year sentence, holding that the defendant’s Fifth Amendment rights had not been violated where the government simply had limited its case to prove a more narrow conspiracy than was charged in the superseding indictment. The Fifth Amendment provides that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment to a Grand Jury. . . .” The defendant appealed his conviction for crimes relating to a $100 million insurance investment scheme on the ground that the district court had violated his Fifth Amendment rights by allowing the government to alter the indictment so as to omit allegations relating to the time after the defendant sold his interest in the company at issue, which, the defendant contended, would have reflected a shorter duration of the conspiracy. The Fourth Circuit disagreed and held that because the conspiracy proven was within the scope of those alleged in the indictment, the narrowing created a non-fatal variance. Finally, the Fourth Circuit rejected the defendant's claims that his sentence was procedurally and substantively unreasonable, finding that the defendant, compared to some of his co-conspirators, had not accepted responsibility for his actions when confronted by the government, had hidden cash in anticipation of his indictment and had continued to live a lavish lifestyle with his money.

U.S. v. Allmendinger, No. 11-5162 (4th Cir. Jan. 23, 2013).