United States v. Jones ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51130
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER T. JONES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-96-CR-894-ALL-H
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June 23, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Walter T. Jones appeals his conviction and sentence
following a jury trial on six counts of mail fraud. The conviction
was based on Jones’s scheme to sell first class postage stamps at
a discounted price. The evidence at trial indicated that Jones
received through the mail approximately $130,000 in orders
requesting discounted stamps, but he failed to provide stamps for
his customers. Jones argues that the prosecution made three
inappropriate and harmful remarks during closing argument that
affected his substantial right to a fair trial. The remarks were
*
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that this opinion should not be published and is not precedent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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not challenged at trial; therefore, we review for plain error.
United States v. George, 201 F.3d 370, 373 (5th Cir. 2000), cert.
denied, (U.S. May 22, 2000)(No. 99-9148).
First, Jones complains that the prosecutor improperly
stated that an individual may return stamps to the post office for
a full refund. Jones argues that there was no evidence at trial
indicating whether the post office will refund stamps at face
value. He also contends that the prosecutor’s closing argument
affected his right to a fair trial because the remark went directly
to the issue whether Jones had the specific intent to commit fraud.
Antonio Sifuentes, a United States Postal Inspector,
testified that a postage stamp is similar to a government security
or treasury bond, and is treated as face value. Although the
precise issue whether the post office would buy back stamps at face
value was not explored at trial, Jones has not explained how this
issue is relevant to whether he had the intent to commit fraud.
Thus, he has failed to demonstrate that the prosecutor’s remark
affected his substantial rights. See United States v. Tomblin, 46
F.3d 1369, 1389 (5th Cir. 1995).
Next, Jones argues that the prosecutor improperly labeled
his postage stamp program as a “bait and switch” scheme. Although
none of the witnesses specifically identified Jones’s program as a
bait and switch scheme, and although there was no evidence at trial
defining the term “bait and switch,” the prosecutor’s alleged
mischaracterization of Jones’ program was neither inappropriate nor
harmful. During her closing argument, the prosecutor accurately
described Jones’ fraudulent scheme as it was presented at trial.
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Moreover, Jones has not explained how the alleged
mischaracterization of the program affected his substantial rights.
He asserts that it led the jury to believe that he was involved in
a sophisticated criminal plan. In fact, ample evidence was
presented at trial that Jones was involved in a criminal scheme to
defraud individuals by offering them discounted first class stamps
in exchange for their participation in a multilevel marketing
program, but that Jones then failed to deliver the stamps. See
United States v. Simpson, 901 F.2d 1223, 1227-28 (5th Cir.
1990)(this court will not set aside a conviction if the
prosecutor’s conduct did not contribute to the guilty verdict).
Finally, Jones argues that the prosecutor improperly
compared his multilevel marketing program to that of Amway. Jones
argues that there was no evidence explaining Amway’s multilevel
marketing method. Contrary to Jones’s assertion, there was
testimony at trial indicating that Amway operated a “downline”
multilevel marketing method, while Jones’s program had more of a
“starburst effect.” Thus, the prosecutor properly relied on the
evidence presented at trial when she compared Jones’s program to
that of Amway. Furthermore, other than the conclusional assertion
that the prosecutor’s comment implicates the issue whether Jones
had the specific intent to commit fraud, Jones has failed to
demonstrate how this remark affected his substantial rights.
Jones has failed to demonstrate plain error, or any error
for that matter, on the issue whether the prosecutor made
inappropriate or harmful remarks during closing argument.
Accordingly, Jones’ conviction and sentence are AFFIRMED.
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AFFIRMED.