US v. Anthony Carrother

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:10-cr-00260-MOC-DSC-3 Copies to all parties and the district court/agency. [999747960].. [14-4684]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4684

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY C. CARROTHERS,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00260-MOC-DSC-3)

Submitted:

November 17, 2015

Decided:

February 3, 2016

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant.
Jill Westmoreland
Rose, Acting United States Attorney, Anthony J. Enright,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Anthony
conspiracy
§§ 371,

Carrothers

to

1344

commit

was

bank

(2012),

and

convicted
fraud,

aiding

after

in

jury

violation

and

abetting

violation of 18 U.S.C. §§ 2, 1344 (2012).
challenges only his convictions.

a

of

trial
18

bank

of

U.S.C.

fraud,

in

On appeal, Carrothers

Finding no error, we affirm.

First, Carrothers argues that the district court erred in
not

allowing

him

to

call

codefendant

Gregory

Anderson

as

a

witness so Anderson could assert his Fifth Amendment privilege
in

front

of

the

jury.

We

review

the

district

court’s

evidentiary ruling on this issue for an abuse of discretion.
United States v. Branch, 537 F.3d 328, 342 (4th Cir. 2008).
We

conclude

discretion.

that

the

district

court

did

not

abuse

its

Although Anderson pled guilty, he had not yet been

sentenced at the time of Carrothers’ trial, thereby entitling
him to assert the privilege.
U.S. 314, 328-29 (1999).

Mitchell v. United States, 526

The district court allowed Carrothers

to question Anderson outside the presence of the jury, Anderson
asserted the privilege, and the court found that the privilege
was properly invoked.

See United States v. Sayles, 296 F.3d

219, 223 (4th Cir. 2002).
Second,

Carrothers

asserts

that

the

Government

committed

prosecutorial misconduct (1) in seeking and obtaining from the
grand

jury

a

third

superseding
2

indictment

after

a

jury

was

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selected, but not empaneled, and the district court had denied
the

Government’s

motion

to

redact

the

second

superseding

indictment, and (2) in opposing his efforts to have Anderson
assert his Fifth Amendment privilege before the jury.

Because

Carrothers failed to allege prosecutorial misconduct before the
district court, we review for plain error.

United States v.

Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (applying plain error
standard to prosecutorial-misconduct claim); see United States
v. Obey, 790 F.3d 545, 547 (4th Cir. 2015) (setting forth plain
error standard).
We conclude that Carrothers cannot show error, let alone
plain error.

To establish prosecutorial misconduct, Carrothers

must establish “(1) that the prosecutor’s remarks or conduct
were improper and (2) that such remarks or conduct prejudicially
affected his substantial rights so as to deprive him of a fair
trial.”

United States v. Caro, 597 F.3d 608, 624-25 (4th Cir.

2010) (internal quotation marks omitted).

The government has

broad discretion in how to charge a defendant.
Armstrong, 517 U.S. 456, 464 (1996).
circuit

has

superseding

upheld

the

indictment

empaneling it.

government’s
after

United States v.

Additionally, at least one
actions

selecting

a

in

jury

obtaining
but

prior

a
to

United States v. Del Vecchio, 707 F.2d 1214,

1216 (11th Cir. 1983).

Moreover, the Government played no role

in Anderson’s decision to assert his Fifth Amendment privilege,
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as it was his privilege to assert.
30.

Mitchell, 526 U.S. at 329-

The Government was also not obligated to offer Anderson

immunity to testify.

United States v. Moussaoui, 382 F.3d 453,

466 (4th Cir. 2004).
Finally, Carrothers argues that the district court erred in
denying his motion for a judgment of acquittal.

“We review a

district court’s denial of a motion for judgment of acquittal de
novo.”

United States v. Reed, 780 F.3d 260, 269 (4th Cir.),

cert. denied, 136 S. Ct. 112, 113, 167 (2015).

The jury verdict

“must be sustained if there is substantial evidence, taking the
view most favorable to the government, to support it.”
(internal quotation marks omitted).

Id.

“Substantial evidence is

that which a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.”

Id. at 269-70 (internal quotation

marks omitted).
To
violation
. . . an
crime[]

establish
of

18

U.S.C.

agreement
and

.

Carrothers

.

§ 371,

between
.

an

was

two
overt

guilty

“the
or
act

of

conspiracy

Government

more
in

people

must
to

furtherance

in

prove

commit
of

a

the

conspiracy,” United States v. Cone, 714 F.3d 197, 213 (4th Cir.
2013) (internal quotation marks omitted), as well as Carrothers’
“willing participation” in the conspiracy to commit bank fraud,
United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004); see
4

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United States v. Adepoju, 756 F.3d 250, 255 (4th Cir. 2014)
(stating elements of bank fraud under 18 U.S.C. § 1344:
the

defendant

artifice

to

executed

a

knowingly
defraud

scheme

executed

a

to

financial
obtain

or

attempted

institution

property

held

a

scheme

[or
by

“(1)
or

knowingly

a

financial

institution through false or fraudulent pretenses], (2) he did
so

with

intent

to

defraud,

and

(3)

federally insured or chartered bank”).

the

institution

was

a

To establish Carrothers

was guilty of aiding and abetting bank fraud, the Government was
required

to

establish

he

“(1)

[took]

an

affirmative

act

in

furtherance of [bank fraud], (2) with the intent of facilitating
the offense’s commission.”

Rosemond v. United States, 134 S.

Ct. 1240, 1245 (2014).
The evidence introduced at trial showed that, at Anderson’s
instructions,

Carrothers

added

codefendant

Maria

Herrera,

a

woman whom he did not know, to his bank account and procured a
check that she used to purchase a home.

Herrera testified that

the money was not hers and that she did not have the necessary
funds to purchase the home.

The evidence further showed that

Carrothers requested at least one bank statement with Herrera’s
name

on

his

account.

Carrothers

admitted

that

he

knew

his

actions were designed so Anderson would not be connected to the
transaction.
visited

a

The

evidence

check-cashing

also

established

establishment
5

with

that

Carrothers

Anderson

and

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deposited large amounts of cash into the same checking account
from which he procured the check used by Herrera.

The evidence

also showed that Anderson received kickbacks from the sale of
the home that were not disclosed to the lenders.

The jury also

heard testimony that Carrothers recruited at least one friend to
join in his “investments” with Anderson.

We therefore conclude

that the evidence was sufficient to sustain the jury’s verdict.
Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

6