USA v. Alvin Byrd, Jr.

Filing

08-50277

USA v. Alvin Byrd, Jr.

Doc. 0

Case: 08-50275

Document: 00511171811

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Date Filed: 07/13/2010

REVISED JULY 13, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
N o . 08-50275 S u m m a r y Calendar May 5, 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 , v. A L V I N W. BYRD, JR., also known as Alvin Byrd, D e fe n d a n t -A p p e lla n t .

A p p e a ls from the United States District Court fo r the Western District of Texas U S D C No. 5:07-CR-128-ALL

B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* A lv in W. Byrd, Jr., was convicted by a jury of one count of wire fraud, one c o u n t of interstate transportation of stolen property, and five counts of money la u n d e r in g ; he received concurrent sentences of 150 months for the wire fraud a n d money laundering counts and a concurrent 120-month sentence for the in t e r s t a t e transportation offense. Byrd was also ordered to pay a $100,000 fine a n d $271,403.33 in restitution and was ordered to forfeit a Hummer H2,

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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$ 8 2 ,0 0 5 .5 1 from an A.G. Edwards account, $5003.53 from a Fidelity account, and a money judgment of $192,886.87. He now appeals, pro se, his convictions and t h e sentences. A s an initial matter, Byrd moves to strike the Government's appellate b r ie f because Byrd objected to the Government's second motion for an extension o f time to file the brief. He also maintains that in the absence of the appellee's b r i e f, he is entitled to an acquittal on all counts and immediate release. This m o t io n is denied. O n appeal, Byrd argues that the evidence is insufficient to support his c o n v ic tio n s . With respect to the wire fraud claim, he maintains that the

t e s t im o n y presented at trial establishes that he lacked any intent to defraud the v ic t im , Kyle Hood, and that there was no evidence establishing that Hood or his c o m p a n y , Desktop Properties, LLC, suffered a loss. See 18 U.S.C. § 1343; United S ta te s v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009). Byrd maintains that t h e r e was no evidence of the interstate element because there was no evidence t h a t he knew an e-mail sent to an individual in the same city would cross state lin e s . Furthermore, he contends that the e-mail was not material because the p a r tie s had previously orally agreed to the terms set forth in the e-mail and b e c a u s e the agreement could have been completed without the use of an e-mail. B y r d 's contentions rely on the truth of his own trial testimony; however, t h e jury has the duty to weigh the evidence and assess witness credibility. United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001). The jury heard e v id e n c e from the prosecution witnesses that Byrd had represented himself as a successful real estate investor and had encouraged Hood to engage in a t r a n s fe r of funds outside of the escrow account by sending him an e-mail a g r e e m e n t. Byrd had written Hood a personal check on a closed account but s t a t e d in a written agreement that Hood could negotiate the check if Byrd failed t o wire the necessary funds into the escrow by the time of closing. Witnesses t e s t ifie d that Byrd had attempted to obtain mortgages on Hood's property by 2

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fa ls e ly stating that he had a clear title to it.

Considering the reasonable

in fe r e n c e s drawn from the evidence in the light most favorable to the verdict, a r a t io n a l trier of fact could have found that the evidence established the elements o f the offenses beyond a reasonable doubt. See United States v. Lopez-Moreno, 4 2 0 F.3d 420, 437-38 (5th Cir. 2005); United States v. Richards, 204 F.3d 177, 2 0 7 (5th Cir. 2000), overruled on other grounds by United States v. Cotton, 535 U .S . 625 (2002). Byrd's challenges to his interstate transportation and money laundering c o n v ic t io n s arise from his assertion that he lacked intent to defraud and that t h u s he did not know that the funds were the proceeds of fraudulent activities. See United States v. Griffin, 324 F.3d 330, 351 (5th Cir. 2003); United States v. O n y ie g o , 286 F.3d 249, 253 (5th Cir. 2002). As the evidence was sufficient for a r e a s o n a b le juror to find that Byrd knowingly engaged in the fraudulent attempts t o engage in a real estate transaction, the jury could thus conclude that his p r o c u r e m e n t of numerous cashier's checks constituted an attempt to conceal the p r o c e e d s of his activities and that Byrd had sent some of these proceeds across s t a t e lines. See Griffin, 324 F.3d at 351; Onyiego, 286 F.3d at 253. I n conjunction with his allegations of innocence, Byrd contends that the d is t r ic t court lacked jurisdiction over his criminal case because he lacked any in t e n t to send an e-mail across state lines. The interstate element is itself "`the l in c h p in for federal jurisdiction.'" See Richards, 204 F.3d at 207-08 (citation o m it t e d ). Byrd's challenge to his lack of intent is in fact a challenge to the s u ffic ie n c y of the evidence. Byrd also contends that his indictment was

fu n d a m e n t a lly flawed because the allegations included were "implausible and im p r a c t ic a l." The superseding indictment in the instant case was proper

b e c a u s e it set forth the elements of the offenses, provided Byrd with information a b o u t the charges against him, and provided sufficient details to bar future p r o s e c u t io n s for the same conduct. See United States v. McGilberry, 480 F.3d

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3 2 6 , 329 (5th Cir. 2007). Byrd's dispute with the factual allegations in the in d ic t m e n t does not establish that the indictment was fundamentally flawed. B y r d contends that his convictions should be overturned because FBI a g e n t s conducted an illegal search of his San Antonio hotel room and an illegal s e iz u r e of his personal property. Because he did not object to the legality of the s e a r c h prior to trial, he may not raise the issue on appeal. See FED. R. CRIM. P . 12(b)(3)(C), (e); United States v. Chavez-Valencia, 116 F.3d 127, 129-30 (5th C ir . 1997). A c c o r d in g to Byrd, the prosecutor committed various forms of misconduct. He maintains that the prosecutor knowingly presented perjured testimony at t r ia l because there was no documentary evidence to support Hood's claims of lo s s . Byrd has not shown that Hood's testimony was false or that the

G o v e r n m e n t knew of the falsity of the testimony. See United States v. O'Keefe, 1 2 8 F.3d 885, 893-94 (5th Cir. 1997). Byrd's allegation that the United States A t to r n e y engaged in selective prosecution fails because the Government has b r o a d discretion in enforcing criminal laws and because there is no authority for B y r d 's supposition that the prosecutor was required to believe Byrd's allegations o f innocence. See United States v. Armstrong, 517 U.S. 456, 464 (1996). Byrd's c o n c lu s o r y assertion that the prosecutor showed bias by acting in a friendly m a n n e r toward Hood fails, as he has pointed to nothing in the record to indicate t h a t the jury was affected by these actions. In addition, Byrd contends that the Government presented various pieces o f evidence at trial that were irrelevant or which reflected the prosecutor's b ia s e s . Because he did not object to the admission of any of this evidence, we r e v ie w for plain error. See United States v. Rogers, 126 F.3d 655, 657 (5th Cir. 1 9 9 7 ) . Byrd has failed to show that the introduction of the majority of the e v id e n c e , much of which directly related to the Government's theory of the case, c o n s t it u te d error, much less a clear or obvious error. See Puckett v. United S ta te s , 129 S. Ct. 1423, 1429 (2009); FED. R. EVID. 401, 402. 4

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B y r d next asserts that the jury was incompetent to hear his case. He m ain ta in s that the panel consisted of individuals who lacked the educational and e c o n o m ic expertise to understand the complex financial transactions in which B y r d engaged or Hood's motivation to use the federal courts as a collection " s c a m " to defraud Byrd out of his money and property. There is no indication t h a t Byrd was deprived of a jury composed of a fair cross-section of the c o m m u n it y . See Duren v. Missouri, 439 U.S. 357, 364 (1979). To the extent that B y r d is arguing that the jurors' limitations prevented them from believing Byrd, t h e jury's credibility finding was within its functions and did not constitute a g r o u n d for disqualifying the jurors. See Delgado, 256 F.3d at 273-74. Byrd a s s e r t s that the jury panel was irreparably tainted by "racially inflammatory o u tb u r s t s " from a venire person; however, he provides no record support that t h is ever occurred. Our examination of the record shows that, although one v e n ir e person expressed his belief that Byrd would not be in court unless he had d o n e something wrong, he was stricken for cause, and there is no indication that h is statements caused the selected jurors to predetermine Byrd's guilt without a p p lic a t io n of the pertinent law to the facts. See United States v. Flores, 63 F.3d 1 3 4 2 , 1357 (5th Cir. 1995) (pretrial publicity). B y r d maintains that the district court and the magistrate judges in his c a s e engaged in a pattern of judicial bias. His complaints about adverse judicial r u lin g s are not sufficient to require recusal. See Liteky v. United States, 510 U.S. 5 4 0 , 555 (1994). The court's refusal to pre-judge the merits of Byrd's case at a p r e t r ia l hearing and insistence on holding a trial does not reflect a deep-seated a n t a g o n is m against Byrd. See Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir. 2 0 0 3 ). The court's insistence during trial that Byrd answer a question during c r o s s -e x a m in a t i o n , when read in the context of Byrd's evasiveness, did not c o n s t it u t e an intervention that would predispose the jury to find Byrd guilty; in s t e a d , the court was controlling witness interrogation. See United States v. B e r m e a , 30 F.3d 1539, 1569 (5th Cir. 1994); FED. R. EVID. 611(a). The court's 5

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s t a t e m e n t s at sentencing about the likelihood that the jury's verdict could be in c o r r e c t and about Byrd's work as a minister, when read in context, involved a disagreement about what was proven at trial, which does not constitute an e x t e r n a l bias. See Liteky, 510 U.S. at 555. W it h respect to the order of forfeiture as encapsulated in the final ju d g m e n t , Byrd contends that his conduct was not illegal and thus no forfeitable a s s e t s existed. Under 18 U.S.C. § 981(a)(1)(C), a defendant convicted of wire fr a u d may be required to forfeit "[a]ny property, real or personal which c o n s t it u t e s or is derived from proceeds traceable" to the violation of 18 U.S.C. § 1 3 4 3 . The evidence at trial established that the assets and money ordered fo r fe it e d by the district court were in fact attributable to Byrd's fraudulent a c t io n s in inducing Hood to write him a check for $192,886.87. I n conjunction with his sentencing proceedings, Byrd asserts that his s e n te n c e was illegally entered because he was actually innocent. If his

a r g u m e n t s are liberally construed, Byrd also contends that the district court's im p o s it io n of upward departures and an upward variance were procedurally im p r o p e r because the district court failed to properly calculate the applicable g u id e li n e s range or sentenced him based on "clearly erroneous facts." Gall v. U n ite d States, 552 U.S. 38, 51 (2007). Because there was sufficient evidence to s u p p o r t Byrd's convictions, the district court could impose sentences against him a n d could rely upon the conclusions necessary from the jury's verdict to impose t h e sentence. Byrd's contention that the district court erred in calculating the p e r t in e n t loss amount because there was no evidence corroborating the a lle g a t io n s of loss and attempted loss set forth in the presentence report (PSR) is w it h o u t merit, as the PSR bore sufficient indicia of reliability and Byrd failed to p r e s e n t evidence to establish that the information included in the PSR was " m a t e r ia lly untrue, inaccurate or unreliable." United States v. Parker, 133 F.3d 3 2 2 , 329 (5th Cir. 1998); see also United States v. Ollison, 555 F.3d 152, 164 (5th C ir . 2009). The court's oral and written reasons for Byrd's sentence show that 6

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it was concerned with the nature of Byrd's crimes, the similarity of the instant o ffe n s e to Byrd's prior charged conduct, the need to protect the public, and the s e r io u s n e s s of the offense. All of these are proper factors to consider when im p o s in g a sentence. See 18 U.S.C. § 3553(a). I n sum, the district court did not abuse its discretion at sentencing. The s e n te n c e imposed "was reasonable under the totality of the relevant statutory fa c t o r s ." United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (quotation m a r k s omitted); see also United States v. Smith, 417 F.3d 483, 492 & n.40 (5th C ir . 2005) (upholding departure of 120 months from a guidelines maximum of 4 1 months). The judgment of the district court should be affirmed. I n his record excerpts and reply brief, Byrd raises claims of ineffective a s s is t a n c e of his trial counsel. The purpose of the record excerpts is to provide r e c o r d documents to assist this court in determining whether oral argument is n e c e s s a r y . 5TH CIR. R. 30.1.1. Byrd is not authorized to submit new arguments t h r o u g h documents that were not presented to the district court. Moreover, we w ill not consider arguments raised for the first time in a reply brief. United S ta te s v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989). To the extent Byrd has r a is e d claims of ineffective assistance of counsel, the record is insufficiently d e v e lo p e d to allow consideration at this time of such claims. See United States v . Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). A F F I R M E D ; MOTION TO STRIKE APPELLEE'S BRIEF AND FOR A C Q U I T T A L DENIED.

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