USA v. Armstrong

Filing

PUBLISHED OPINION FILED. [08-20323 Affirmed 08-20332 Affirmed 08-20366 Affirmed ] Judge: JES , Judge: JLW , Judge: JWE Mandate pull date is 09/29/2010 for Appellant Angela Armstrong and Appellant Debbie Ramcharan [08-20323, 08-20332, 08-20366]

USA v. Armstrong

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Case: 08-20323

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Date Filed: 09/08/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-20323 September 8, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s A N G E L A ARMSTRONG, Also Known as Angie Armstrong; D E B B I E RAMCHARAN, D e fe n d a n t s -A p p e lla n t s .

_________________________ A p p e a ls from the United States District Court fo r the Southern District of Texas _________________________

B e fo r e SMITH, WIENER, and ELROD, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:

Angela Armstrong and Debbie Ramcharan appeal their convictions of eng a g in g in monetary transactions in property derived from specified unlawful act iv it y , conspiracy, and aiding and abetting mail fraud. They argue that the jury in s tru ctio n s were inappropriate, that the district court erred by allowing the gov-

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e r n m e n t 's summary witness to testify, and that the court improperly admitted s e v e r a l exhibits into evidence. Because there is no reversible error, we affirm.

I. Facts and Procedural History. B e t w e e n 1996 and 2002, defendants participated in a large-scale insurance fr a u d pursuant to which those participating in the fraud intentionally flooded o v e r fifty homes and a commercial building. They then filed false reimbursem e n t claims on their flood insurance policies, in some cases claiming reimbursem e n t for repairs they had completed themselves. In other cases, they would cont r a c t for repairs by companies controlled by other members of the conspiracy, w h o inflated their bills. In addition, the members of the fraud removed the h o m e o w n e r 's furniture before the flooding and moved in a set of already floodd a m a g e d furniture. Each defendants' participation in the scheme included actin g once as the "victim" of a flood. Armstrong also worked for three of the comp a n ie s that contracted to repair the damage, personally spoke with various ins u r a n c e adjusters in this capacity, and participated in inflating invoices. B e c a u s e the conspirators filed claims with different insurance companies, t h e fraud continued undetected for seven years. Eventually, however, fraud inv e s t ig a t o r s for Farmers Insurance became suspicious of two similar claims. They reported the suspicious activity to the Texas Department of Insurance, w h o s e subsequent investigation uncovered the scheme, which had defrauded ins u r a n c e companies of $5.4 million. D e fe n d a n t s were charged with one count of conspiracy to commit mail fr a u d in violation of 18 U.S.C. § 371; five counts of aiding and abetting mail fr a u d in violation of 18 U.S.C. §§ 1341-1342; four counts of engaging in monetary t r a n s a c t io n s in property derived from specified unlawful activity in violation of 1 8 U.S.C. § 1957(a); and one count of conspiracy to engage in monetary transact io n s in property derived from specified unlawful activity in violation of 18 2

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U .S .C . § 1956(h). They were tried jointly. A t trial, the government called insurance company representatives to test ify about the claims filed by the group of conspirators. The government submitt e d as evidence many of the claim files, including the adjusters' logs of each c la im . The government also offered the testimony of Jan Tarpley, a postal ins p e c t o r , as a summary witness, and a summary chart prepared by Kathy Anders o n , an FBI financial analyst (Exhibit 161). The jury found defendants guilty of n in e of the ten counts, including conspiracy to commit mail fraud, aiding and a b e t tin g mail fraud, engaging in monetary transactions in property derived from s p e c ifie d unlawful activity, and conspiracy to engage in monetary transactions in property derived from specified unlawful activity.

I I . Discussion. A . Admission of Government's Exhibit 161. R a m c h a r a n argues that the court improperly admitted Exhibit 161 as a s u m m a r y chart under Federal Rule of Evidence 1006. We review the admission o f evidence, including summaries and summary testimony, for abuse of discret io n . United States v. Harms, 442 F.3d 367, 375 (5th Cir. 2006). If there is error, it is "excused unless it had a substantial and injurious effect or influence in det e r m in in g the jury's verdict." Id. (internal quotatoin marks omitted). E x h ib it 161 is titled "Debbie Ramcharan, Occurrences totaling

$ 1 ,5 7 6 ,2 3 9 .7 9 , 2/18/2000-3/28/2001." It includes a photo of Ramcharan surr o u n d e d by pictures of seven different properties that were flooded by the cons p ir a t o r s . Lines connect Ramcharan's photo to three of the pictures, indicating h e r involvement in the scheme to flood those particular properties. All the info r m a t io n summarized in the chart was already before the jury. Rule 1006 provides that "[t]he contents of voluminous writings, recordings, o r photographs which cannot conveniently be examined in court may be pres e n te d in the form of a chart, summary, or calculation." Fifth Circuit precedent 3

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c o n flic ts on whether rule 1006 allows the introduction of summaries of evidence t h a t is already before the jury, or whether instead it is limited to summaries of v o lu m in o u s records that have not been presented in court.1 We need not resolve t h a t conflict, however, because even if summaries of information already before t h e jury, such as Exhibit 161, are inadmissible, the admission of Exhibit 161 was h a r m le s s error. Ramcharan argues that Exhibit 161 had a "substantial and injurious effect o r influence," Harms, 442 F.3d at 375, for two reasons. First, she professes that t h e exhibit drew an inappropriate inference from the underlying evidence by im p ly in g that Ramcharan was criminally liable for all the properties in the c h a r t, but the evidence connected her to only four of them. The presence of an in fe r e n c e itself is not prejudicial, for under rule 1006, "`[t]he essential requirem e n t is not that the charts be free from reliance on any assumptions, but rather t h a t these assumptions be supported by evidence in the record.'" Buck, 324 F.3d a t 791 (citing United States v. Diez, 515 F.2d 892, 906 (5th Cir. 1975)). Moreove r , Exhibit 161 did not suggest any conclusions unsupported by the evidence. The witness who prepared the exhibit clarified in her testimony, on direct and c r o s s -e x a m in a t io n , that Ramcharan had a connection only to the properties that h a d a line drawn to her picture. Thus, there was no reason for the jury to belie v e that she was connected to the other properties as well. Second, Ramcharan contends that admitting Exhibit 161 may have bol1

Compare United States v. Bishop, 264 F.3d 535, 547-48 (5th Cir. 2001) (allowing introduction of summary charts that prosecutors "based . . . on testimony and documentary evidence presented to the jury"), and United States v. Stephens, 779 F.2d 232, 238-39 (5th Cir. 1985) (stating that the language of rule 1006 extends to summaries of writings that have been presented in court), with United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003) ("Th[e] use of summaries [allowed under rule 1006] should be distinguished from charts and summaries used only for demonstrative purposes to clarify or amplify argument based on evidence that has already been admitted. . . . Although some Courts have considered such charts and summaries under Rule 1006, the Rule is really not applicable because pedagogical summaries are not evidence. Rather, they are demonstrative aids governed by Rules 403 and 611" (quoting 5 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL § 1006.02[5], at 1006-6 (8th ed. 2002))).

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s t e r e d the credibility of the witnesses testifying to the underlying evidence. That argument fails, however, because the court made plain to the jury that it s h o u ld consider the exhibit only as an aid in understanding the other evidence. Immediately after admitting Exhibit 161, the court commented: I remind the jury that this is among those summary charts that we t a lk e d about yesterday. This chart is not independent evidence. It is admitted to assist in summarizing other evidence. If you find that t h e exhibit does not accurately or correctly summarize the evidence t h a t has been otherwise established, you should disregard it to that e x t e n t , and give it only the weight that you think it deserves. The final jury instructions included a similar comment. Those instructions disp e lle d any danger that the jury would give weight to Exhibit 161 as substantive e v id e n c e or to bolster credibility. Thus, the admission of Exhibit 161, if error, w a s harmless.

B . Admission of Insurance Adjuster's Logs. R a m c h a r a n challenges the admission of the insurance adjusters' logs on g r o u n d s of hearsay and authentication. That objection was not made at trial, so w e review the issue only for plain error. United States v. Avants, 367 F.3d 433, 4 4 3 (5th Cir. 2004). To the extent that Ramcharan argues that the logs themselves did not q u a lify for the "business records" exception to the hearsay rule, see Federal Rule o f Evidence 803(6), she is incorrect. At times, she appears to claim that the acc u r a c y of the contents of the logs was not affirmed by the insurance claims a g e n t s who introduced them. But "[t]here is no requirement that the witness w h o lays the foundation be the author of the record or be able to personally att e s t to its accuracy." United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008), c e r t. denied, 129 S. Ct. 2812 (2009). Rather, a "qualified witness is one who can e x p la in the record keeping system of the organization and vouch that the req u ir e m e n t s of Rule 803(6) are met." Id. The relevant witnesses plainly met

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t h o s e requirements. More particularly, Ramcharan objects to the portion of the logs that rec o r d e d phone calls from Ramcharan to one of the insurance adjusters. She maint a in s that the statements by the caller in the logs were hearsay and inadmissible u n d e r the "hearsay within hearsay" rule. FED. R. EVID. 805. That argument fa ils , however, because the statements by the caller were not offered for the t r u t h of the matter asserted and thus are not hearsay. See FED. R. EVID. 801(c). Rather, the government offered the statements to prove that Ramcharan had c o n t a c t e d the insurance companies in regard to particular claims and was thus a w a r e of the flooding of the propertiesSSthat is, to prove the identity of the c a lle r . Ramcharan contends that the adjuster's identification of the caller as R a m c h a r a n is insufficient to prove identity, particularly where the conspirators fr e q u e n t ly concealed or modified their identities. That argument is correct, but it should have been made to the jury. The call logs were some evidence that R a m c h a r a n was the caller, and the jury was free to consider them as such.

C . Testimony of the Summary Witness. D e fe n d a n t s argue that the court erred when it allowed Postal Inspector J a n Tarpley to testify as a summary witness for the government. Because defe n d a n t s objected to Tarpley's testimony, we review its admission for abuse of d is c r e t io n . Avants, 367 F.3d at 443. Although this court allows summary witness testimony in "limited circums t a n c e s " in complex cases, we have "repeatedly warned of its dangers." United S ta te s v. Nguyen, 504 F.3d 561 (5th Cir. 2007). "While such witnesses may be a p p rop ria te for summarizing voluminous records, as contemplated by Rule 1006, r e b u t ta l testimony by an advocate summarizing and organizing the case for the ju r y constitutes a very different phenomenon, not justified by the Federal Rules o f Evidence or our precedent." United States v. Fullwood, 342 F.3d 409, 414 (5th 6

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C ir . 2003). In particular, "summary witnesses are not to be used as a substitute fo r , or a supplement to, closing argument." Id. T o minimize the danger of abuse, summary testimony "must have an adeq u a t e foundation in evidence that is already admitted, and should be accompan ie d by a cautionary jury instruction." Bishop, 264 F.3d at 547. Moreover, "[f]ull c r o s s -e x a m in a t io n and admonitions to the jury minimize the risk of prejudice." Id. Here the evidenceSSinvolving numerous witnesses, technical testimony, a n d scores of exhibitsSShas sufficient complexity to justify use of a summary witn e s s . Nothing in the record suggests that Tarpley's testimony went beyond summ a r iz in g the evidence already in the record,2 and Tarpley was subject to extens iv e cross-examination. Moreover, even though the court's instructions did not e x p lic it ly address summary testimony, they did warn the jury generally not to t a k e summaries as substantive evidence. Thus, the district court did not abuse it s discretion by allowing the use of this summary witness.

D. Insurance Claim Files with Colored Flags. A r m s t r o n g avers that the district court inappropriately allowed the gove r n m e n t to attach colored flags to the claim files that were admitted into evid e n c e . Because counsel objected, this court's review is for abuse of discretion. See Avants, 367 F.3d at 443. Armstrong's argument rests on the assertion that t h e flags improperly bolstered the evidence by attempting to convey the prepare r 's opinion about certain pieces of evidence.3 It was evident to the jury, how

The only possible exception is Tarpley's testimony on redirect about what she "surmised" after reading the individual claim files. Ramcharan cannot rightly complain about that testimony, however, because her counsel opened that line of inquiry. Cf. United States v. Carey, 589 F.3d 187, 193-94 (5th Cir. 2009). Cf. United States v. Price, 722 F.2d 88, 90 (5th Cir. 1983) (warning against allowing testimony bolstering the credibility of a witness to "suggest[] to the jury that it may shift to (continued...)
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e v e r , that the tabs were merely organizational aids. The court stated as much in its final charge to the jury, which read, Some of the claim files admitted into evidence are voluminous a n d have color-coded tabs as an organizational aid. These tabs simp ly serve to identify certain parts of the files, to aid in locating parts o f the files that may have been mentioned or shown to you during t h e testimony. You are instructed that the tabs and their placement a r e not evidence. You are also instructed that the existence of the t a b s does not mean that you should disregard or give less considera t io n to other parts of the exhibits that have been admitted into evid e n c e . Whether the color-coded tabs correctly reflect the type of ent r y indicated by their color is for you to determine, based on your o w n examination of the exhibits and the testimony you have heard. This instruction leaves no possibility that the jury misinterpreted the tabs, and it shows that the court did not abuse its discretion in admitting them.

E . Jury Instructions. D e fe n d a n t s ' final three issues on appeal relate to the propriety of the jury in s t r u c t io n s . They argue that the court erred in its Pinkerton instruction and it s instruction regarding conspiracy to commit mail fraud. Armstrong alone add it io n a lly challenges the instruction regarding conspiracy to engage in monetary t r a n s a c t io n s in property derived from specified unlawful activity. Because none o f these objections was raised at trial, we review them for plain error. See Unite d States v. Phillips, 477 F.3d 215, 221 (5th Cir. 2007). First, defendants say that the instruction for conspiracy to commit mail fr a u d failed to include the substantive elements of mail fraud. That argument is frivolous, however, because the substantive elements were included in a separ a t e instruction regarding the count for mail fraud. Thus, "looking to the entire charge," United States v. Chagra, 807 F.2d 398, 402 (5th Cir. 1986), it is evident

(...continued) a witness the responsibility for determining the truth of the evidence").

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t h a t the jury was properly instructed as to the elements of mail fraud, and there w a s no error, plain or otherwise. S e c o n d , Armstrong argues that the instruction regarding conspiracy to eng a g e in monetary transactions in property derived from specified unlawful activit y was plain error because it did not mention the statute's requirement that the c r im in a lly derived property be valued over $10,000. That contention is similarly fr iv o lo u s , because the $10,000 requirement was included in the instruction reg a r d in g the substantive crime of engaging in monetary transactions in property d e r iv e d from specified unlawful activity. Thus, that requirement was properly b e fo r e the jury, and there is no error. Next, defendants maintain that the Pinkerton instruction was improper. "[U]nder the Pinkerton doctrine, a defendant can be found liable for the substant iv e crime of a coconspirator provided the crime was reasonably foreseeable and c o m m it t e d in furtherance of the conspiracy."4 The jury, however, was told that it should impose Pinkerton liability if it found that "the offense was committed in furtherance of or as a foreseeable consequence of the conspiracy." Despite this d is c r e p a n c y , the jury instruction tracked exactly this circuit's pattern jury ins t r u c t io n for Pinkerton liability,5 w h ic h we have previously held to state the law c o r r e c t ly .6 There was no error in this part of the instruction. F in a lly , defendants argue that the Pinkerton instruction improperly stated t h a t it was applicable to "the offenses charged in any of the subsequent counts," in c lu d in g the count charging conspiracy to engage in monetary transactions in

United States v. Gonzalez, 570 F.3d 16, 26 n.8 (5th Cir. 2009) (emphasis added) (alteration in original) (citation omitted).
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See Pattern Jury Instructions: Fifth Circuit, Criminal Cases, § 2.22.

United States v. Thomas, 348 F.3d 78, 85 (5th Cir. 2003); see also United States v. Dean, 59 F.3d 1479, 1490 n.18 (5th Cir. 1995) ("[A]t a minimum, a proper Pinkerton instruction should at least state clearly that the defendant can be convicted of a substantive crime committed by his co-conspirator in furtherance of the conspiracy" (citation omitted)).

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p rop erty derived from specified unlawful activity. But Pinkerton liability attache s only to substantive crimes, not to other conspiracies. Defendants are correct t h a t the jury charge should have been more specific about the counts to which P in k e r to n liability applied. Nonetheless, the problems with the instruction do not amount to plain err o r . To be reversible, plain error must affect the defendant's substantial rights, a n d even then, we have discretion not to reverse a conviction unless "the error s e r io u s ly affect[s] the fairness, integrity, or public reputation of judicial proceedin g s ." United States v. Cotton, 535 U.S. 625 (2002) (alteration in original) (citat io n omitted). These defendants' substantial rights were not affected, because t h e prosecutor made it plain in closing argument that Pinkerton liability applies o n ly to substantive crimes. Because this court "review[s] claimed deficiencies in a jury charge by looking to the entire charge as well as the arguments made to t h e jury" to determine "whether in the context of the true trial scene the jury w a s given incorrect instructions," the prosecutor's explanation was sufficient to c u r e any harm that might have been caused by the deficient instruction. The convictions are in all respects AFFIRMED.

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