United States of America v. Harold McCoy, Iii

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3159
UNITED STATES OF AMERICA
v.
HAROLD MCCOY, III,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Crim. No. 04-cr-00750-1)
District Judge: The Honorable Paul S. Diamond
Submitted Under Third Circuit LAR 34.1(a)
March 7, 2008
Before: BARRY, JORDAN and HARDIMAN, Circuit Judges
(Opinion Filed April 8, 2008)
OPINION
BARRY, Circuit Judge
Appellant Harold J. McCoy, III, appeals from a sentence of imprisonment of 162
months on the ground that the District Court impermissibly granted the government’s
motion for an upward departure. He also urges us to consider certain arguments he makes

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1 Merck is a pharmaceutical company and Siemens is a technology company.
2
pro se despite the fact that he is represented by counsel. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We will affirm.
I.
Because we write primarily for the parties, we set forth only those facts pertinent
to our analysis. McCoy conducted a rather extensive identity fraud scheme in which he
and two co-defendants used the identities of more than 40 victims to conduct over 170
illegal transactions that netted the group about $270,000 in cash and merchandise.
Among the victims of the conspiracy was the Penn-Jersey Region of the American Red
Cross. One of McCoy’s co-defendants, a data entry clerk at this regional office of the
Red Cross, gave McCoy the identities of blood donors who had participated in corporate
blood drives at Merck and Siemens.1 When the conspiracy was exposed, Merck and
Siemens, who regularly sponsored corporate blood drives, refused to sponsor any drives
in the future because of their employees’ fears that their identities would be put at risk.
Other corporate groups either cancelled their sponsorships or saw the participation in the
blood drives they continued to sponsor substantially decline. As a result, the Red Cross
lost many hundreds of pints of blood in donations, leading to a crisis that eventually
forced the Penn-Jersey regional office to purchase blood from other Red Cross regional
offices at a cost of over $400,000.
McCoy pleaded guilty to counts of conspiracy, interstate transportation of
counterfeit securities, bank fraud, and uttering and possessing counterfeit securities. The

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parties stipulated to a number of sentencing guidelines issues in the plea agreement,
including a stipulation that the victims of the scheme other than the Red Cross had
suffered a minimum loss of $200,000 for the purposes of the loss calculation under
section 2B1.1 of the sentencing guidelines. They further stipulated, however, that the
government would present evidence of an additional $70,000 of actual loss and $43,000
of attempted loss to merchants and financial institutions as well as the loss suffered by the
Red Cross. This evidence, the government stated, would, if accepted by the District
Court, result in a loss of more than $400,000 but less than $1 million and a base offense
level increase of fourteen points. Finally, the plea agreement stated that if the Court
rejected the government’s argument that the base offense level should be increased by 14,
the government would seek an upward departure on the ground that the guidelines did not
account for the involvement of the Red Cross and the effect of the fraud on blood
donations.
At sentencing, the District Court did not include in its loss analysis the damage to
the Red Cross, instead using those damages as an alternative ground for granting an
upward departure. The Court found that McCoy’s conduct resulted in both substantial
monetary damage to the Red Cross beyond the loss determined in its loss analysis and
substantial non-monetary harm in the form of damage to the Red Cross’s reputation. In
determining the scope of the departure, the Court analogized to the guideline range that
would have resulted had it included in its loss analysis the monetary damages to the Red
Cross: 130-162 months. The Court then sentenced McCoy to a term of imprisonment of

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162 months based on the nature of his offenses, the disastrous effect his conduct had on
the Red Cross, and his extensive criminal history.
II.
Our review of whether an upward departure was permissibly granted is plenary.
United States v. Himler, 355 F.3d 735, 741 (3d Cir. 2004). We review the reasonableness
of the departure for abuse of discretion. United States v. Murray, 144 F.3d 270, 275 (3d
Cir. 1998).
McCoy argues that the District Court erred by not including the monetary damages
to the Red Cross in its loss analysis and by not explaining why they were not included,
only then to allow those damages to serve as a basis for an upward departure. He also
argues that it was error for the Court to allow the non-monetary harm to the Red Cross to
serve as a basis for a departure because the application notes to section 2B1.1 of the
sentencing guidelines no longer expressly permit a departure based on damage to an
entity’s reputation or effectiveness as they did in prior versions.
Under 18 U.S.C. § 3553(b) and section 5K2.0 of the sentencing guidelines, a
district court may grant an upward departure where there exist circumstances that the
guidelines do not adequately take into consideration. Application note 19(A) to section
2B1.1 of the sentencing guidelines states that an upward departure may be warranted in
cases where the offense level determined under section 2B1.1 “substantially understates
the seriousness of the offense.” It then sets forth a non-exhaustive list of factors that a
district court may consider in determining whether an upward departure is warranted,
including the consideration of whether “[t]he offense caused or risked substantial non-

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2 The fact that Application note 19A does not expressly include reputational harm as a
basis for an upward departure did not preclude the District Court from using that harm as
a basis for departure. First, as noted, Application note 19A states that the list of factors to
be considered is “non-exhaustive.” Second, McCoy cannot and does not dispute that the
harm to the Red Cross’s reputation is a form of non-monetary harm that may be
considered.
3 Because we affirm on this basis, we need not address the alternative basis for granting
the departure.
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monetary harm.” The District Court relied on this ground as one of two alternative bases
for granting the government’s upward departure motion. It did not err in so doing.
As the government argues, the Red Cross serves a vital national interest in
collecting blood donations so that our hospitals have ample blood reserves to serve their
patients. The government introduced evidence demonstrating, and the District Court
acknowledged, the devastating effect that McCoy’s crimes had on the Red Cross’s ability
to collect blood within its Penn-Jersey region. When it came to be known that donors’
identities had been stolen, the organization was sullied in the eyes of potential donors,
including those employed by the two largest corporate donors in that region—Merck and
Siemens. Indeed, the Penn-Jersey region was forced to turn to other regional offices to
buy blood from them. We have affirmed the grant of an upward departure under
circumstances in which an institution’s reputation for service to the public was similarly
tarnished. United States v. Medford, 194 F.3d 419, 425 (3d Cir. 1999) (affirming the
grant of an upward departure where defendant was convicted of stealing rare antiques
from a museum, which resulted in harm to the museum’s general reputation).2 The
District Court did not abuse its discretion in granting an upward departure based on these
circumstances.3

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Finally, McCoy represented himself before the District Court with court-appointed
counsel serving as his standby lawyer. His plea agreement contained, as relevant here, a
waiver of appeal of any issue other than the Court’s grant of an unreasonable upward
departure, and the waiver was discussed at, and upheld following, the plea colloquy.
McCoy concedes, in his pro se brief submitted to us, that he waived his right to appeal,
but argues that it would work a miscarriage of justice to enforce the waiver and that we
should, therefore, consider the issues he raises pro se. We decline to do so. Local
Appellate Rule 31.3 prohibits the filing of a brief pro se where the appellant is
represented by counsel and counsel has not filed a motion to withdraw under Anders v.
California, 386 U.S. 738 (1967).
For these reasons, we will affirm the judgment of the District Court.

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