PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 22-4508
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`UNITED STATES OF AMERICA,
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`Plaintiff – Appellee,
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`Defendant – Appellant.
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`No. 22-4521
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`AGHEE WILLIAM SMITH, II,
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`v.
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`UNITED STATES OF AMERICA,
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`Plaintiff – Appellee,
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`v.
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`DAVID ALCORN,
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`Defendant – Appellant.
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`Appeals from the United States District Court for the Eastern District of Virginia, at
`Norfolk. Raymond A. Jackson, Senior District Judge. (2:19-cr-00047-RAJ-LRL-3; 2:19-
`cr-00047-RAJ-LRL-2)
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`
`
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`ARGUED: May 10, 2024
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`Decided: September 17, 2024
`Amended: September 18, 2024
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`

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`Before KING, AGEE, and HEYTENS, Circuit Judges.
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`Appeal No. 22-4508 affirmed, and Appeal No. 22-4521 affirmed in part, vacated in part,
`and remanded, by published opinion. Judge King wrote the majority opinion. Judge Agee
`wrote an opinion concurring in part and concurring in the judgment. Judge Heytens wrote
`a dissenting opinion.
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`
`
`
`
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`ARGUED: Michael E. Rayfield, SHOOK, HARDY & BACON L.L.P., New York, New
`York, for Appellants. Elizabeth Marie Yusi, OFFICE OF THE UNITED STATES
`ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Andrew W. Grindrod,
`Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
`Norfolk, Virginia; Luke L. Hartman, SHOOK, HARDY & BACON L.L.P., Kansas City,
`Missouri, for Appellant Aghee William Smith II. Paul Graham Beers, GLENN,
`FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant David
`Alcorn. Jessica D. Aber, United States Attorney, Richmond, Virginia, Daniel J. Honold,
`Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
`Alexandria, Virginia, for Appellee.
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`2
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`

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`KING, Circuit Judge:
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`
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`We herein resolve the consolidated appeals of defendants Aghee William Smith, II
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`(No. 22-4508) and David Alcorn (No. 22-4521). Smith and Alcorn appeal from their
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`convictions and sentences in the Eastern District of Virginia for their involvement in long-
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`running illegal schemes that defrauded multiple investors of millions of dollars. In
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`February 2022, during the COVID-19 pandemic, they were tried together before a jury in
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`Norfolk. On appeal, Smith and Alcorn pursue a total of three contentions of error that
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`relate to their trial and sentencing proceedings. They first assert a joint constitutional
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`challenge to their various convictions — that is, that the district court’s implementation of
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`the district-wide COVID-19 trial protocol denied them their rights under the Public Trial
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`Clause of the Sixth Amendment. Second, defendant Smith separately contends that the
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`court fatally erred by its admission into evidence of court-authorized videotaped
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`depositions of three of the fraud victims, in violation of the Sixth Amendment’s
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`Confrontation Clause.1 Finally, defendant Alcorn separately maintains that the court
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`committed a reversible sentencing error, by failing to properly impose his conditions of
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`supervised release.
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`1 The Sixth Amendment provisions that underlie the public trial and witness
`confrontation issues — which we refer to as the “Public Trial Clause” and the
`“Confrontation Clause” — provide in pertinent part as follows:
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`In all criminal prosecutions, the accused shall enjoy the right to a speedy and
`public trial [the “Public Trial Clause”] . . . and . . . to be confronted with the
`witnesses against him [the “Confrontation Clause”] . . . .
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`See U.S. Const. amend. VI.
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`
`
`3
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`

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`As explained herein, we reject Smith and Alcorn’s joint contention under the Public
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`Trial Clause and Smith’s separate contention under the Confrontation Clause. We
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`therefore affirm Smith’s multiple convictions and sentences, and we also affirm each of
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`Alcorn’s convictions. Because the district court erred in connection with Alcorn’s
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`sentencing, however, we vacate his sentences and remand.
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`
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`I.
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`A.
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`On March 21, 2019, the federal grand jury in Norfolk indicted defendants Smith,
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`Alcorn, and four other defendants in a single 17-count indictment returned in connection
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`with long-running mail and wire fraud schemes involving multiple conspirators. See
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`United States v. Maerki, No. 2:19-cr-00047 (E.D. Va. Mar. 21, 2019), ECF No. 2 (the
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`“Indictment”). One of the alleged fraud schemes entailed the marketing and selling of
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`phony investments in an entity called Dental Support Plus Franchise, LLC (“DSPF”),
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`which Smith and Alcorn, among others, falsely claimed was a franchisor of a dental
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`services marketing program that would refer patients to dentists in return for a portion of
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`the fees earned from those patients. With respect to DSPF, the Indictment alleged that
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`from early 2011 until August 2014, Smith and Alcorn “pitched DSPF to investors across
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`the country using advertisements that were materially false and misleading.” Id. at 4, 19.
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`The alleged losses from the DSPF fraud scheme totaled more than $9 million.
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`Another fraud scheme underlying the Indictment involved the marketing and selling
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`of fraudulent spectrum investments. In relevant part, the Indictment alleged that, between
`4
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`2012 and 2015, Smith, Alcorn, and other schemers and conspirators “sold, and caused to
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`be sold, fraudulent spectrum investments to investors and then continued to lull investors
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`regarding the purported value of such investments.” See Indictment 14.2
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`For his alleged involvement in the mail and wire fraud schemes, Alcorn was indicted
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`on 13 offenses:
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`•
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`•
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`•
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`A single count of conspiracy to commit mail and wire fraud (Count
`Two), in contravention of 18 U.S.C. §§ 1341, 1343, and 1349;
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`Eleven counts of wire fraud (Counts Seven through Seventeen), in
`violation of 18 U.S.C. §§ 1343 and 2; and
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`A single count of engaging in unlawful monetary transactions (Count
`Nineteen), in contravention of 18 U.S.C. § 1957.
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`For his part, Smith was indicted as a codefendant of Alcorn in five counts of the Indictment,
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`that is, Counts Two, Eight, Nine, Sixteen, and Seventeen. Separately, Smith was charged,
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`along with several codefendants, with a single count of conspiracy to commit mail and wire
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`fraud (Count One), in violation of 18 U.S.C. §§ 1341, 1343, and 1349.
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`B.
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`After the Indictment was returned in 2019, the district court conducted extensive
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`pretrial proceedings involving defendants Smith and Alcorn, and their codefendants and
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`2 The term “spectrum,” as used herein, refers to a part of the electromagnetic
`spectrum (e.g., radio wavelengths) that is licensed by the Federal Communications
`Commission (the “FCC”) for a particular purpose, such as operating a mobile telephone
`network or a radio station. A license holder is entitled to lease its spectrum allotment to
`another individual or entity. As part of the spectrum fraud scheme, Smith and Alcorn
`allegedly offered and marketed false and fraudulent FCC license application services to
`investors.
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`
`
`5
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`

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`coconspirators, concerning the Indictment and several related prosecutions. For example,
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`the separate case of two coconspirators was consolidated with this one, rendering it a
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`prosecution of eight defendants. In September 2020 — in the midst of the COVID-19
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`pandemic — the court severed those eight defendants into three groups. The court’s
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`severance decisions resulted in Smith and Alcorn being joined with another defendant, who
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`pleaded guilty before trial. The 14-day jury trial of Smith and Alcorn was conducted in
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`Norfolk in February 2022.
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`1.
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`a.
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`
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`Of relevance here, the conditions of the COVID-19 pandemic seriously deteriorated
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`in about November 2020. In response, Chief Judge Davis of the Eastern District of Virginia
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`issued a series of administrative orders that suspended all criminal trials in the district until
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`at least March 1, 2021. Shortly thereafter, the Chief Judge issued a district-wide order
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`containing the court’s protocol for jury trials conducted during the pandemic. See E.D. Va.
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`Gen. Order No. 2021-04 (Mar. 18, 2021) (the “COVID-19 Protocol”). As relevant here,
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`the COVID-19 Protocol specified that
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`in order to safely conduct a mid-pandemic jury trial (civil or criminal), the
`Court must utilize a specially retrofitted courtroom, often repurposing the
`entire gallery as a socially distanced jury box. Such procedure generally
`requires the use of two additional courtrooms, one to act as a jury room, and
`one to allow members of the public to watch a live video-feed of the trial
`courtroom.
`
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`Id. at 4.
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`6
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`
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`Pursuant to the district court’s COVID-19 Protocol, the trial of defendants Smith
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`and Alcorn would utilize three courtrooms. First, the bulk of the trial proceedings would
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`be conducted in a “trial courtroom” to be used by the jury, court personnel, defendants, and
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`lawyers. The trial courtroom would allow for appropriate social distancing to prevent or
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`limit the spread of COVID-19. More specifically, it would allow the jurors to be socially
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`distanced from each other — in an area of the trial courtroom called the “gallery” — instead
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`of sitting in the jury box. Because social distancing would require the jury to take up the
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`majority, if not the entirety, of the gallery, a second courtroom would be designated as the
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`“public-viewing courtroom” in which the public could observe trials through video and
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`audio streams.3 And a third courtroom would be reserved as a jury room since standard
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`jury rooms did not allow for social distancing.
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`b.
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`
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`On October 27, 2021, defendant Smith filed with the district court a “Motion for
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`Courtroom Procedures that Conform with the Constitution,” asserting that implementation
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`of the COVID-19 Protocol was unconstitutional under the Sixth Amendment’s Public Trial
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`Clause. Smith’s motion was promptly joined by defendant Alcorn. They challenged the
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`anticipated closing of the trial courtroom and the use of a video feed that would not permit
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`those in the public viewing courtroom to observe the jury. In challenging the video feed
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`3 In applying the COVID-19 Protocol, the district court installed multiple cameras
`in the trial courtroom to capture audio and video from several angles, seeking to acquire
`sounds and views from the lectern used by the lawyers, from the witness box, from the
`exhibits, and otherwise from the judge and the balance of the courtroom. The live audio
`and video feed were then streamed to the public viewing courtroom.
`
`
`
`7
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`

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`of the trial proceedings, Smith and Alcorn argued that the court had erroneously “used a
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`similar procedure” in conducting an earlier trial of two of Smith and Alcorn’s
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`coconspirators, named Bank and Seabolt. See J.A. 265.4 And they argued that, during “the
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`Bank trial, the video feed did not allow the public to observe the jurors.” Id. Smith and
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`Alcorn maintained that the procedures under the COVID-19 Protocol with respect to the
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`public viewing courtroom — specifically, the inability of the public to view the jurors —
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`would violate their rights under the Public Trial Clause.
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`In support of their Public Trial Clause contention, Smith and Alcorn relied primarily
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`on the Supreme Court’s 1984 decision in Waller v. Georgia, 467 U.S. 39 (1984). The
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`Waller decision identified circumstances where a courtroom closure can be constitutionally
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`permissible:
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`[1] the party seeking to close the hearing must advance an overriding interest
`that is likely to be prejudiced, [2] the closure must be no broader than
`necessary to protect that interest, [3] the trial court must consider reasonable
`alternatives to closing the proceeding, and [4] it must make findings adequate
`to support the closure.
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`Id. at 48. Arguing that the anticipated video and audio feeds authorized by the COVID-19
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`Protocol would not permit the public to observe the jury during their trial, Smith and Alcorn
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`contended that “the proposed closure [was] broader than necessary to protect the interest
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`in maintaining safety during the pandemic and there [was] a reasonable alternative to the
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`breadth of the anticipated closure.” See J.A. 265.
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`4 Citations herein to “J.A. ” refer to the contents of the Joint Appendix filed by
`the parties in these appeals.
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`8
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`c.
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`Three months later, on January 28, 2022, the district court filed a memorandum
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`order denying Smith and Alcorn’s motion concerning the COVID-19 Protocol. See United
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`States v. Maerki, No. 2:19-cr-00047 (E.D. Va. Jan. 28, 2022), ECF No. 370 (the “Protocol
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`Ruling”). The Protocol Ruling addressed, inter alia, whether the court’s proposed
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`implementation of the COVID-19 Protocol would contravene Smith’s and Alcorn’s rights
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`under the Public Trial Clause. Although Smith and Alcorn argued that the video feed to
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`be streamed to the public viewing courtroom — which would not show the jury — violated
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`their constitutional right to a public trial, the Protocol Ruling rejected that contention. In
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`so ruling, the court first concluded that its compliance with the COVID-19 Protocol would
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`be neither a partial nor a complete courtroom closure. And the Protocol Ruling emphasized
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`that Smith and Alcorn had
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`fail[ed] to cite to any authority indicating that the current procedures strictly
`constitute a “closure” as it is understood under the Sixth Amendment.
`Instead, their argument relie[d] on the premise that the current set up is a
`“closure,” rather than a “reasonable alternative” to closing the proceedings.
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`Id. at 7 (footnote omitted). Additionally, the court explained that Smith and Alcorn had
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`“failed to establish as a factual matter that there [would] be any complete closure of the
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`proceedings triggering analysis of the Waller factors.” Id. (internal quotation marks
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`omitted).
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`The Protocol Ruling also reasoned that, if the district court’s implementation of the
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`COVID-19 Protocol constituted some type of courtroom closure, it nevertheless satisfied
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`the Waller mandate. With respect to the first Waller prong, the court ruled that public
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`9
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`health concerns arising from COVID-19 satisfied both the “overriding interest” standard
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`that would apply to a total courtroom closure and the alternative “substantial reason”
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`standard that would apply to a partial courtroom closure. See Protocol Ruling 8 (internal
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`quotation marks omitted). And the “presumption of openness” of courtrooms, the court
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`emphasized, was “overcome by an overriding interest in stemming the spread of COVID-
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`19 and protecting the public health.” Id. (internal quotation marks omitted).
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`
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`Turning to the second Waller prong — i.e., that the closure of a courtroom can be
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`no broader than necessary to protect the asserted interest — the Protocol Ruling concluded
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`that the district court’s COVID-19 Protocol was exactly that. That is, it was, as the court
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`specified, “no broader than necessary to protect” the overriding interest of stopping the
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`spread of COVID-19. See Protocol Ruling 9 (internal quotation marks omitted). And the
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`court emphasized the “extraordinary lengths” that courthouse personnel were undertaking
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`to “preserve a defendant’s constitutional rights amidst a highly contagious, potentially
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`lethal, and perpetually fluctuating pandemic.” Id. In particular, the “retrofitted
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`courtrooms” would be equipped “with cameras at several critical angles to feature the
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`Court, lectern, witness box, and exhibits.” Id. (internal quotation marks omitted). And as
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`the Protocol Ruling observed, “the case law [Smith and Alcorn] cite[d] only support[ed]
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`the importance of jury observation by the trial judge, defendants, and defense counsel.” Id.
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`That is, the defendants had not presented any legal authority that supported their contention
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`about the public always being able to view the jury. Finally, the court ruled that its
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`implementation of the COVID-19 Protocol was “a reasonable alternative” to completely
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`closing the trial courtroom. Id. at 10.
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`10
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`2.
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`a.
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`The trial of defendants Smith and Alcorn — after extensive pretrial proceedings —
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`was scheduled for November 16, 2021. As the government prepared for trial during the
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`ongoing pandemic, however, it discovered that several victim witnesses would be
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`unavailable to travel long distances to testify in Virginia, due to preexisting medical
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`conditions, advanced ages, and high risks of serious health complications if they contracted
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`COVID-19. On October 26, 2021 — three weeks before the November trial date — the
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`prosecutors filed a motion to take video depositions of several victim witnesses, pursuant
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`to Rule 15 of the Federal Rules of Criminal Procedure, to preserve their testimony for trial.5
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`The government’s Rule 15 motion was unopposed, but Smith filed a motion on October
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`27, 2021 to exclude the trial admission of the video depositions pursuant to the
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`Confrontation Clause.
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`In particular, the evidence of three of Smith’s victims — each of whom resided in
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`or near Sacramento, California — is at issue here:
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`•
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`Victim V.H., who was 73 years old and was the sole caretaker of her
`blind husband who was in the early stages of dementia. V.H. was
`
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`5 In pertinent part, Rule 15 of the Federal Rules of Criminal Procedure provides as
`follows:
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`A party may move that a prospective witness be deposed in order to preserve
`testimony for trial. The court may grant the motion because of exceptional
`circumstances and in the interest of justice.
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`See Fed. R. Crim. P. 15(a)(1).
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`
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`11
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`unable to travel or drive long distances due to her age and her
`husband’s condition.
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`Victim S.B., who was 81 years old, had medically retired from her job
`due to a mental breakdown caused by her extreme anxiety. She
`continued to suffer from crippling anxiety that rendered her unable to
`travel or drive long distances. S.B. also had limited mobility.
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`Victim K.S., who was 64 years old, suffered from severe vertigo,
`which caused him to be unable to fly. He was the sole caretaker of
`his disabled wife.
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`
`
` •
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`•
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`Moreover, the three victim witnesses, due to their ages and health conditions, were
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`each at an increased risk of serious health complications if infected with COVID-19.
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`Compelling statements concerning the three victim witnesses were presented by the federal
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`prosecutors to the trial court in a Declaration made by Inspector Jason W. Thomasson of
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`the Postal Service. Thomasson corroborated each of the witnesses’ individual situations
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`with respect to, inter alia, their health problems and inability to travel to and testify in a
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`Virginia trial.6
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`The district court granted the unopposed Rule 15 motion and authorized the
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`prosecution to take the pretrial video depositions being sought, including those of V.H.,
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`S.B., and K.S. In so ruling, the court ordered that the government pay the costs incurred
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`by the defendants and their counsel to attend the video depositions, in person or by
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`6 Inspector Thomasson’s Declarations relied, in part, on statements made by other
`federal officers. His sources included special agents of the Federal Bureau of Investigation
`(“FBI”) and the Internal Revenue Service (“IRS”), in addition to an Assistant United States
`Attorney (“AUSA”). The AUSA had communicated with the three victim witnesses and
`ascertained that they were each unable to travel from California to Virginia and testify at
`trial.
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`12
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`videoconference. On November 5, 2021, Smith’s counsel and the prosecutors conducted
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`the court-authorized depositions in the United States Attorney’s Office in Sacramento.
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`Defendant Smith, with his counsel, was present when the three victim witnesses testified,
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`and the lawyers examined the witnesses and objected as they saw fit. Two of the witnesses
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`— V.H. and S.B. — were unable to drive themselves to the depositions, and law
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`enforcement officers had to transport them.
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`b.
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`When the trial of defendants Smith and Alcorn was continued for three months —
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`from November 2021 until early February 2022 — the prosecutors reconfirmed the
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`continuing unavailability of the three victim witnesses who gave the video depositions. On
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`January 25, 2022 — approximately a week before the February trial date — the government
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`filed a Supplemental Declaration made by Inspector Thomasson. The Supplemental
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`Declaration explained and confirmed that the bases for the three witnesses not being able
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`to travel to and be present at the trial in Virginia were unchanged and continued to apply.
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`c.
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`
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`On January 31, 2022, the district court filed a memorandum order addressing, inter
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`alia, Smith’s motion to exclude the video depositions under the Confrontation Clause. See
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`United States v. Maerki, No. 2:19-cr-00047 (E.D. Va. Jan. 31, 2022), ECF No. 371 (the
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`“Evidence Ruling”). The court therein denied Smith’s motion, concluding that the
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`government had satisfied its burden and established the unavailability of the three deposed
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`witnesses. It also ruled that the prosecutors had made good faith efforts to obtain the trial
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`presence of the three victim witnesses.
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`13
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`In making its Evidence Ruling, the district court explained that “the Government
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`[had spelled] out in detail why the witnesses are unavailable and the good faith efforts they
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`have made to procure their attendance at trial.” See Evidence Ruling 8. The court
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`emphasized that the ongoing pandemic presented
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`heightened risks and substantial hardships for the deposed witnesses because
`they are all senior citizens who live in the Sacramento, California, area and
`therefore would need to take a minimum-seven-hour flight, including at least
`one layover, to travel to Virginia.
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`Id. The Evidence Ruling explained in further detail how the pandemic had compounded
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`the personal circumstances of the three victim witnesses. And it specified their personal
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`situations in the following detailed recitation:
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`•
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`•
`
`•
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`•
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`First, V.H. is 73 years old, the sole caretaker of her husband, S.H.,
`who is legally blind and in the early stages of dementia. V.H. is also
`unable to drive long distances. For her deposition in Sacramento, law
`enforcement had to drive V.H. to and from the location and her
`husband accompanied her.
`
`Second, S.B. is 81 years old. Due to a mental breakdown, she
`medically retired from her job at a telephone company and continues
`to suffer from extreme, crippling anxiety. Her anxiety renders her
`unable to travel and she is also unable to drive long distances. For her
`deposition in Sacramento, law enforcement had to drive S.B. to and
`from the location. She also has limited mobility.
`
`Third, K.S. is 64 years old and suffers from extreme vertigo that
`prevents him from flying. His wife also recently suffered an accident
`in which she was severely injured, and he is the sole caretaker. There
`is no one else available to assist him.
`
`The Government informed all of the deposed witnesses that they were
`going to have to attend and testify at trial, but all of them informed the
`Government that they are unable to do so for the aforementioned
`reasons. Moreover, Postal Inspector Jason W. Thomasson personally
`met V.H., S.H., and S.B., and affirmed their unavailability based on
`his observations.
`
`
`
`14
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`

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`Id. at 7-8 (footnote and citations omitted). The Evidence Ruling thus concluded that the
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`government had acted in good faith and sufficiently supported its position on the
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`unavailability issue. As a result, the Evidence Ruling denied Smith’s motion to exclude
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`the video depositions.
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`C.
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`
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`At the beginning of February 2022, the trial of defendants Smith and Alcorn
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`commenced in Norfolk, and was conducted in accordance with the district court’s COVID-
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`19 Protocol. The prosecution presented extensive testimonial and documentary evidence,
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`including 34 witnesses and more than 475 exhibits. And the prosecution’s evidence
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`detailed the fraud schemes that had been conceived and carried out by Smith, Alcorn, and
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`their coconspirators — in which they primarily targeted elderly victims. More specifically,
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`the evidence established that Smith was a financial investments salesman in California who
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`had worked for Alcorn — who was primarily located in Arizona — and that Smith had
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`sold millions of dollars’ worth of fraudulent investments. More than 20 victims of the vast
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`conspiracy testified at trial about the fraud schemes. Those witnesses included 12 victims
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`to whom Smith had directly sold bogus investments.
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`The various victim witnesses each testified about being duped and defrauded by
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`Smith. Several of them had learned of Smith through a Christian broadcast radio show that
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`Smith had conducted about financial investments. His victims explained that Smith met
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`with them to discuss their retirement situations and confirmed that they were all
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`unsophisticated investors. In various discussions with Smith, he had vastly inflated his
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`own experiences and successes, convincing the victim witnesses that he was trustworthy.
`15
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`And despite Smith emphasizing his religious beliefs to several of his victims, Smith had
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`lied to them in multiple ways. Smith had falsely advised his victims that the DSPF and
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`spectrum investments had successful track records, that they were safe investments, and
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`that they carried low risks. To several of the victims, Smith falsely asserted that he had
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`personally invested in the marketed products. And Smith had continued to sell those
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`fraudulent investments to his victims, even after being warned that he was being
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`investigated by government authorities and sued for misrepresentations.
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`Among Smith’s victims were the three elderly deposed Californians identified as
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`V.H., S.B., and K.S. V.H. confirmed that she and her husband had trusted Smith with
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`nearly $400,000 of retirement funds, including approximately $40,000 that was invested
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`in DSPF. Similarly, S.B. had given nearly all of her $100,000 pension fund to Smith for
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`investments, and $25,000 of those funds went into the spectrum investments. And K.S.
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`had placed around $25,000 with Smith for spectrum investments. None of those victims
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`received any returns on their investments and, moreover, they lost a significant portion of
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`their initial investments.
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`During the trial, defendant Smith again objected to the admission of the video
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`depositions, asserting that, even though he and his counsel had been present and
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`participated in the three depositions, their admission into evidence would contravene the
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`Confrontation Clause. More specifically, Smith asserted that the government had not
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`sufficiently established that the three victim witnesses were unavailable for trial, arguing
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`that the existence of the COVID-19 vaccine served to undermine their health concerns.
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`Smith also maintained that the prosecution had failed to exercise good faith in its efforts to
`16
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`secure the trial presence of the three victim witnesses. In that regard, Smith argued that all
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`three witnesses could travel cross-country by rail from California to Virginia and could be
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`present in Norfolk after a 4-day train ride. In the alternative, Smith asserted that the
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`government could charter an airplane and fly the witnesses to Virginia, and thus minimize
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`their health concerns.
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`In addition to the various fraud victims, other witnesses for the prosecution included
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`representatives of state and federal regulatory agencies, who confirmed Smith and Alcorn’s
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`illegal sales of securities and the efforts of government regulators to stymie the fraudulent
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`investments conspiracy.7 Several of Smith’s and Alcorn’s convicted coconspirators
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`testified on behalf of the prosecution, and they explained their own “behind the scenes”
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`fraudulent dealings with Smith and Alcorn, including the operations and sales approaches
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`of the fraud schemes. An expert financial analyst was called by the prosecution, and he
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`traced the flow of fraudulently obtained money for the jury. And an expert on the spectrum
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`investment “market” — and the potentially spurious nature of spectrum investments
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`— explained that complex subject for the jury. For their part, Smith and Alcorn
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`collectively called seven defense witnesses. Neither Smith nor Alcorn testified.
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`D.
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`The three-week trial concluded on February 23, 2022, with the jury rendering its
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`verdict of guilty of all charges against both defendants. The jury thus found Smith guilty
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`7 The prosecution called supporting witnesses from various agencies, including
`California’s Department of Insurance, the Financial Industry Regulatory Authority, the
`Securities Division of the Arizona Corporation Commission, and the FCC.
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`17
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`of the six offenses and Alcorn guilty of the 13 offenses lodged against them. Smith was
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`sentenced on August 24, 2022, and he received a prison term of 156 months, plus three
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`years of supervised release. Alcorn was sentenced on August 30, 2022, to 185 months in
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`prison, plus three years of supervised release.
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`On appeal, Smith does not challenge his sentences in any respect. Alcorn presents
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`a single appellate challenge that concerns his term of supervised release and the conditions
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`thereof. We will therefore further discuss Alcorn’s sentencing proceedings and his
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`appellate contention with respect thereto.
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`After the jury convicted Alcorn of his 13 fraud-related offenses, the Probation
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`Office prepared his presentence report (the “PSR”) for the sentencing court. The PSR
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`confirmed that Alcorn was a leader and organizer of the mail and wire fraud conspiracies
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`and that the amount of loss established for sentencing purposes was more than $20 million.
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`As pertinent here, the PSR identified multiple supervised-release conditions, under
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`separate categories called “mandatory” conditions and “standard” conditions. See J.A.
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`27882-84. And the PSR recommended that the court impose 13 standard conditions of
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`supervised release, incorrectly characterized in the PSR as “Standard Conditions of
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`Supervision [which] have been adopted by this Court.” Id. at 27883. Those standard
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`conditions had not, however, “been adopted by this Court” through the entry of a standing
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`order, by publication of a local rule, or otherwise.
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`During Alcorn’s August 30, 2022 sentencing proceedings, the district court heard
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`and considered the arguments of counsel, assessed the PSR, overruled various objections,
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`and evaluated the 18 U.S.C. § 3553(a) sentencing factors. Although the court did not
`18
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`expressly adopt the PSR, the court explained that it had studied and relied on the PSR and
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`its recommendations in fashioning Alcorn’s sentences. After imposing the 185-month
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`prison term on Alcorn, the court also imposed his three-year term of supervised release. In
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`the following brief statement, the court explained the standard conditions of supervised
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`release being imposed on Alcorn:
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`You shall also comply with all standard conditions of supervised release that
`have been adopted by this Court — that is, this Court in the Eastern District
`of Virginia — and are incorporated into this judgment by reference.
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`See J.A. 27729. The court thereby repeated the PSR’s mischaracterization of the standard
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`conditions of supervised release as having “been adopted by this Court.”
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`Alcorn did not object to any conditions of supervised release, nor did he indicate
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`any confusion concerning them. At the conclusion of the sentencing proceedings, the
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`district court invited Alcorn to raise additional issues, and none were asserted. The very
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`next day — August 31, 2022 — the court entered its written criminal judgment as to
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`Alcorn, which specifically identified the 13 standard conditions of supervised release
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`recommended in his PSR.8
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`
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`Smith and Alcorn timely noted these consolidated appeals. We possess jurisdiction
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`pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
`
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`8 The 13 standard conditions, specified in the PSR and identified in Alcorn’s
`criminal judgment, established “the basic expectations for [Alcorn’s] behavior while on
`supervision.” See J.A. 27801. Those conditions required Alcorn to, inter alia, notify his
`assigned probation officer of relevant changes in his residence, contact with other felons,
`or contact with law enforcement; remain in the federal judicial district at a residence
`approved by his probation officer; seek or maintain full-time employment; and allow his
`probation officer to cond