United States v. Keith Shwayder, Michael G. Swan, and Kevin Orton

Keith Shwayder appeals his convictions for racketeering, RICO conspiracy, conspiracy, securities fraud, wire fraud, and money laundering. He argues that he was deprived of his Sixth Amendment right to effective assistance of counsel because his trial counsel had an actual conflict of interest. Although there was such a conflict, Shwayder has not shown that the conflict adversely affected his counsel’s representation.

Shwayder further contends that the prosecution asked his character witnesses guilt-assuming hypothetical questions, in violation of his right to due process. The prosecution’s use of guilt-assuming hypothetical questions did constitute error, but this error did not affect Shwayder’s substantial rights.

Lastly, Shwayder contends that the factual findings used to increase his base offense level for sentencing purposes should have been made by a jury rather than a judge. The law of this circuit is to the contrary.

Because none of these contentions warrants reversal or remand, we affirm Shwayder’s convictions and sentence.

I. BACKGROUND

A. The Conspiracy

Keith Shwayder was president of Tele-tek, Inc. (“Teletek”), a telephone sales and installation company…