United States v. Lucas ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2009
No. 07-60247 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH STALNAKER; KIMBERLY A. CASTLE,
Defendants-Appellants.
*************************
No. 07-60079
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
RICHARD B. LUCAS; KIMBERLY A. CASTLE; KENNETH STALNAKER,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Mississippi
No. 2:06-CR-1-4
Before DAVIS, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Kenneth Stalnaker and Kimberly Castle were found guilty of various
crimes, including bank fraud and wire fraud. After the verdict, the district court
dismissed the bank fraud-related counts. The government appeals that dismiss-
al; Stalnaker and Castle appeal their convictions and Castle her sentence. We
affirm the convictions and sentence and, as a result, do not reach the merits of
the government’s appeal.
I.
A.
Richard Lucas orchestrated an elaborate mortgage fraud operation that
purchased cheap property and, through various acts of fraud, resold it at a high-
er price. He first bought inexpensive pieces of property, often in his half-broth-
er’s name. Then, several licensed appraisers, including Stalnaker, produced in-
flated appraisals of the properties.
Other members of the conspiracy recruited buyers, most of whom were
falsely promised that the properties were investments and that Stalnaker would
find tenants, collect rent, and use that money to pay the mortgages. The buyers
were further enticed by “no money down” promises or, in some cases, paid for
their participation. If they did not have the means to buy the properties hon-
2
Nos. 07-60247, 07-60079
estly, still more members of the conspiracy would forge documents (such as W-2’s
and paystubs) that would be used to obtain mortgage loans.
Castle is the attorney who handled the closings on the original property
purchase and the inflated resale. At closing, the mortgage company wired Castle
the money with instructions not to release it until the down payment had been
received. Castle ignored the instructions and released the money immediately;
Lucas then improperly used the money to make the down payment, which ena-
bled him to entice buyers with a no-money-down promise. He also used some of
the profits from the sale to pay buyers for their participation.
B.
Lucas and a dozen others were charged in a twelve-count indictment with
bank fraud, wire fraud, conspiracy to commit money laundering, and conspiracy
to commit bank fraud, wire fraud, and submission of false statements.1 Ten of
the defendants pleaded guilty, leaving Lucas, Stalnaker, and Castle to face trial.
With three mostly irrelevant exceptions, the jury found them guilty.2 The dis-
trict court then dismissed, for lack of jurisdiction, the bank fraud count and the
bank fraud object of the conspiracy count.
1
The indictment can be summarized as follows:
Count 1: Conspiracy to commit bank fraud, wire fraud, and
submission of false statements
Count 2: Bank fraud
Counts 3-11: Wire fraud (each count alleges a separate date on which the de-
fendants used wires for their scheme)
Count 12: Conspiracy to commit money laundering
2
Those exceptions are that (1) Stalnaker was not charged with money laundering; and
(2) and (3) the jury found him not guilty on two of the nine wire fraud countsSSspecifically,
counts 4 and 7.
3
Nos. 07-60247, 07-60079
II.
A.
Stalnaker claims there is insufficient evidence to support a conviction.3
After briefly stating the elements of the crime and the standard of review, he
says,
The issue for appellate review is whether reasonable minds could
have found evidence inconsistent with every reasonable hypothesis
of innocence. United States v. Escobar, 674 F.2d 469 (5th Cir. 1987).
There is no hypothesis that evidence supports that Kenneth Stal-
naker knew or was a knowing participant in any bank fraud
scheme. Defendant Stalnaker’s conviction for wire fraud should be
set aside and vacated.
Stalnaker does not discuss the facts of the case, cite the record or anything
other than general sufficiency-of-the-evidence caselaw, or explain his “hypothesis
of innocence.” Where a defendant asserts “that the evidence was insufficient to
convict him” but fails “to make any argument whatsoever to support this conten-
tion,” the issue is considered abandoned. United States v. Beaumont, 972 F.2d
553, 563 (5th Cir. 1992).
There is easily enough evidence that Stalnaker was an active participant
in the conspiracy. Indeed, his brief includes trial excerpts of a witness’s testimo-
ny that Stalnaker manipulated appraisals to match Lucas’s requested valua-
tions.
B.
The government presented witness Janet Chatman, who, on direct exam-
ination, experienced what appeared to be a panic attack, which twice interrupted
3
Stalnaker raises the issue three times in separate sections of his brief. In the first, he
argues that the court erred in not granting his motion for judgment of acquittal. In sections
titled “The evidence at trial was legally insufficient to support a conviction of Kenneth Stal-
naker” and “The verdict at trial was contrary to the evidence and strongly against the weight
of the evidence,” he merely cross-references his earlier argument with a “see above.”
4
Nos. 07-60247, 07-60079
her questioning. After taking a break, she was unable to return. The court
struck her testimony and instructed the jury to disregard it. Stalnaker unsuc-
cessfully moved for a mistrial on grounds that his Sixth Amendment right to
cross-examine was violated; the court denied that request.
“Alleged violations of the Confrontation Clause [of the Sixth Amendment]
are reviewed de novo, but are subject to harmless error analysis.” United States
v. Bell, 367 F.3d 452, 465 (5th Cir. 2004). “Ordinarily, a witness is considered
to be a witness ‘against’ a defendant for purposes of the Confrontation Clause on-
ly if his testimony is part of the body of evidence that a jury may consider in as-
sessing his guilt.” Cruz v. New York, 481 U.S. 186, 190 (1987). This follows from
the “almost invariable assumption of the law that jurors follow their instructions
. . . .” Richardson v. Marsh, 481 U.S. 200, 206 (1987).4
Because of the court’s instruction, Chatman’s stricken testimony was not
part of the “body of evidence” that the jury could consider in assessing guilt and
thus could not be the basis for a confrontation violation. Accordingly, the court
did not err in denying a mistrial.5
4
There are only narrow exceptions to this rule : “[A] defendant is deprived of his Sixth
Amendment right of confrontation when the facially incriminating confession of a nontestifying
codefendant is introduced at their joint trial, even if the jury is instructed to consider the con-
fession only against the codefendant.” Richardson, 481 U.S. at 207 (summarizing Bruton v.
United States, 391 U.S. 123 (1968)). The Court created that exception because “there are some
contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and
the consequences of failure so vital to the defendant, that the practical and human limitations
of the jury system cannot be ignored.” Bruton, 391 U.S. at 135. This is not one of those
situations.
5
“A new trial is required only when, after a review of the entire record, it appears that
there is a significant possibility that the prejudicial evidence had a substantial impact on the
jury verdict.” United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). Chatman was one of
nine mortgage borrowers who described her dealings with Lucas, and the district court charac-
terized her testimony as “cumulative” and “essentially no different from numerous other wit-
nesses that testified.” It is therefore unlikely that her testimony had an impact on the verdict,
and any error in admitting it was harmless.
5
Nos. 07-60247, 07-60079
C.
Stalnaker filed several unsuccessful motions to sever. He contends that
he was prejudiced by having to go to trial with a “bad person co-defendant” and
was “convicted by the overwhelming spillover proof of guilt of Richard Lucas.”
“We review a grant or denial of severance for abuse of discretion.” United
States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007). “A severance is reversible
only on a showing of specific compelling prejudice. There is a preference in the
federal system for joint trials of defendants who are indicted together,’ particu-
larly in conspiracy cases.” Id. (quoting Zafiro v. United States, 506 U.S. 534, 537
(1993)) (internal citation omitted).
In Lewis, id. at 384, we held that a “district court did not abuse its discre-
tion in denying [defendants’] motions for severance” in which they “complain[ed]
broadly of the volume of evidence, the disparity of evidence between defendants,
and a generalized spillover effect,” but “[n]one point[ed] to any specific prejudice
resulting from their combined trial.” Stalnaker raises identical arguments; the
district court did not abuse its discretion.6
Moreover, the jury found Stalnaker not guilty on two counts on which it
found his co-defendants guilty. That suggests that the jury did not blindly con-
vict Stalnaker on spillover evidence but instead gave each defendant and each
count separate consideration.
6
The government correctly points out that all of the cases Stalnaker cites regarding the
need for severance from a “bad person co-defendant” actually address severing multiple charg-
es against an individual defendant. See United States v. McCarter, 316 F.3d 536, 538 (5th Cir.
2002); United States v. Singh, 261 F.3d 530, 534 (5th Cir. 2001); United States v. Daniels, 770
F.2d 1111 (D.C. Cir. 1985); United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994). Those
courts held that where one charge introduces evidence of a prior felony (e.g., a charge for felon
in possession of a firearm), it should be severed from other, unrelated charges, because of the
“danger that the jury might convict, not based on the evidence, but because it feels the defen-
dant is a ‘bad person.’” Singh, 261 F.3d at 534. Those decisions thus have nothing to do with
“bad person co-defendants.”
6
Nos. 07-60247, 07-60079
D.
Stalnaker alleges that the above errors cumulatively deprived him of a fair
trial. But where “we find no merit to any of [the defendant’s] arguments of error,
his claim of cumulative error must also fail.” United States v. Moye, 951 F.2d 59,
63 n.7 (5th Cir. 1992).
III.
A.
Castle appeals the denial of her motion to suppress. The facts are that one
of the buyers recruited into Lucas’s scheme, Tyronica James, decided to go to the
police. She gave Detective Rusty Keyes copies of her closing papers, which were
prepared by Castle and contained an inflated appraisal and fraudulent financial
information (e.g., reporting that she earned $1800 per month when she only
earned $800). Following up on this lead, Keyes contacted a former Countrywide
office manager, who reported that she had quit doing business with the Lucas
group and Castle when she noticed that two loans had the same bank state-
ments attached. Keyes next spoke with a Countrywide regional manager who
stated that there were many delinquent loans that she believed were connected
to loans from the same group involved in the James incident.
Based on the information from James and the two Countrywide managers,
Keyes received a warrant to search Castle’s law office for documents related to
closings performed for Lucas. Before trial, Castle unsuccessfully moved to sup-
press the fruits of that search.
“When the district court denies a motion to suppress, we review factual
findings for clear error and conclusions of law de novo.” United States v. Payne,
341 F.3d 393, 399 (5th Cir. 2003). Probable cause questions are evaluated in two
steps: “First we determine whether the good-faith exception to the exclusionary
rule . . . applies. If it does, we need not reach the question of probable cause for
7
Nos. 07-60247, 07-60079
the warrant unless it presents a novel question of law, resolution of which is nec-
essary to guide future action by law enforcement officers and magistrates.” Id.
(internal citations and quotation marks omitted).
Under the good-faith exception, evidence obtained during the
execution of a warrant later determined to be deficient is admissible
nonetheless, so long as the executing officers’ reliance on the war-
rant was objectively reasonable and in good faith. . . . The good
faith exception cannot apply if one of four circumstances is present:
(1) If the issuing magistrate/judge was misled by information in an
affidavit that the affiant knew was false or would have known ex-
cept for reckless disregard of the truth; (2) where the issuing magis-
trate/judge wholly abandoned his or her judicial role; (3) where the
warrant is based on an affidavit so lacking in indicia of probable
cause as to render official belief in its existence entirely unreason-
able; and (4) where the warrant is so facially deficient in failing to
particularize the place to be searched or the things to be seized that
the executing officers cannot reasonably presume it to be valid.
Id. at 399-400 (internal quotation marks and citations omitted).
Castle contends that the court erred in not allowing her to impeach
James’s credibility during the hearing on the suppression motion. James’s credi-
bility is irrelevant, however. As the court noted, “what is relevant for the sup-
pression hearing is what she told the officer” and “any reason that he had to
challenge her credibility . . . .” The court therefore correctly considered only
whether the officer was objectively reasonable in relying on James’s statements;
it does not matter whether, unbeknownst to the officer, her story was completely
fabricated.
Castle also argues that the warrant lacked sufficient indicia of probable
cause and reliability. But James’s statements were corroborated not only by the
closing documents she providedSSwhich were prepared by Castle and contained
false informationSSbut also by two Countrywide managers, one of whom specifi-
cally reported suspicious mortgage applications from Castle. Keyes was there-
fore not entirely unreasonable in believing that the warrant provided probable
8
Nos. 07-60247, 07-60079
cause, and the good faith exception applies.
B.
1.
Castle appeals the sufficiency of evidence for her wire fraud convictions.
We review the conviction de novo and ask “whether a reasonable jury could con-
clude that the relevant evidence, direct or circumstantial, established all of the
essential elements of the crime beyond a reasonable doubt when viewed in the
light most favorable to the verdict.” United States v. Loe, 262 F.3d 427, 432 (5th
Cir. 2001).
“To prove wire fraud under 18 U.S.C. § 1343, the government must prove:
(1) a scheme to defraud and (2) the use of, or causing the use of, wire communi-
cations in furtherance of the scheme.” United States v. Ingles, 445 F.3d 830, 838
(5th Cir. 2006) (citation and internal quotation marks omitted). Wire fraud is
a specific-intent crime requiring proof that the “defendant knew the scheme in-
volved false representations,” United States v. Nguyen, 504 F.3d 561, 568 (5th
Cir. 2007), cert. denied, 128 S. Ct. 1324 (2008), which related to material infor-
mation, see Neder v. United States, 527 U.S. 1, 25 (1999).
Further, “[o]nce membership in a scheme to defraud is established, a
knowing participant is liable for any wire communication which subsequently
takes place or which previously took place in connection with the scheme.” Unit-
ed States v. Dula, 989 F.2d 772, 778 (5th Cir. 1993). And because Castle was
charged as an aider and abettor of wire fraud, the government need only estab-
lish that she “assisted the actual perpetrator of the wire fraud crimes while shar-
ing the requisite criminal intent.” United States v. Rivera, 295 F.3d 461, 466
(5th Cir. 2002). Castle argues that (1) the government did not present sufficient
evidence that a wire was used; (2) there was no proof of specific intent; and
(3) the false documents Castle signed were immaterial or not in furtherance of
9
Nos. 07-60247, 07-60079
the scheme, because they were not used for approving or denying the loan.
2.
In regard to the first point, Castle’s primary complaint is that the govern-
ment did not produce records of specific wire transmissions. But, as the govern-
ment points out, the “wire-transmission requirement may be established by cir-
cumstantial evidence, such as customary business practices.” United States v.
Moody, 903 F.2d 321, 332 (5th Cir. 1990). The government presented testimony
from multiple Countrywide employees about its customary business practice of
using a wire system called EDGE to process mortgage loan transactions, a sys-
tem that Countrywide began using at least three years before defendants’ con-
duct.
Next, there was substantial circumstantial evidence from which a jury
could conclude that Castle possessed the requisite intent. First, at the closing,
she violated instructions from the lending company that she “not close the loan
or disburse the funds” until receiving the down payment from the borrower. In-
stead, she disbursed the funds immediately, then Lucas used them to make the
down payment. Second, she handled the closings on the initial house purchases
and the subsequent sales, so she knew that the latter prices were substantially
inflatedSSthe government points to two examples in which the home values
doubled in a day. Both are circumstantial evidence of Castle’s intent to defraud
Countrywide.
Finally, in response to Castle’s argument that her participation was either
immaterial or not in furtherance of the scheme, the government explains:
That the final [documents] were signed after the receipt of the funds
makes no difference. Castle’s office faxed draft [documents] to
Countrywide before [each] of the closings for approval. . . . By false-
ly certifying she had received the down payments, Castle helped Lu-
cas complete the fraud. By continuing to handle Lucas’s loan clos-
ings despite being aware of the inflated values of the properties and
10
Nos. 07-60247, 07-60079
the true source of the down payments, Castle played an integral
part in perpetrating the fraud.
In short, viewed in the light most favorable to the verdict, there was
more than sufficient circumstantial evidence to support the verdict.
C.
Castle avers that the verdict rests on insufficient legal theories. The gov-
ernment charged Castle with conspiracy to commit money laundering, alleging
that the proceeds from the conspiracy to commit bank fraud, wire fraud, and
false statements in a loan application (all alleged in count 1) were used to con-
duct financial transactions with intent to promote further unlawful activity.7 Af-
ter the guilty verdict, the court entered a judgment of acquittal for the bank
fraud-related charges, because it believed it lacked jurisdiction over them. The
court also dismissed the false-statements-in-a-loan-application charge as to Cas-
tle by determining that there was no evidence that she participated in preparing
loan applications (her role was handling closing documents).
With two of the three objects of the money laundering scheme dismissed,
Castle argues that the court erred in not granting her motion to dismiss the
money-laundering charge. She reasons that because the verdict did not specify
“which alleged basis the jury found these alleged proceeds came from[] (i.e.[,] the
dismissed or not dismissed parts thereof),” it is possible that the jury convicted
on an invalid legal theory.
Castle is correct that her conviction should be dismissed if the verdict
might have been based on an insufficient legal theory.
7
The money-laundering statute imposes criminal penalties on anyone who, “knowing
that the property involved in a financial transaction represents the proceeds of some form of
unlawful activity, conducts or attempts to conduct such a financial transaction which in fact
involves the proceeds of specified unlawful activity with the intent to promote the carrying on
of specified unlawful activity . . . .” 18 U.S.C. § 1956(a)(1)(A)(i).
11
Nos. 07-60247, 07-60079
In Yates v. United States, 354 U.S. 298, 312 . . . (1957), the Su-
preme Court held that where a jury returns a general verdict of
guilt that might rest on multiple legal theories, at least one insuffi-
cient in law and the others sufficient, the verdict must be set aside.
In such a situation, we cannot trust the jury to have chosen the le-
gally sufficient theory and to have ignored the insufficient one, be-
cause “[j]urors are not generally equipped to determine whether a
particular theory of conviction submitted to them is contrary to
law.” Griffin v. United States, 502 U.S. 46, 59 . . . (1991).
United States v. Skilling, 554 F.3d 529, 542-43 (5th Cir. 2009) (alteration in orig-
inal), petition for cert. filed (May 11, 2009) (No. 08-1394).
There is, however, no risk that Castle’s conviction might rest on an insuf-
ficient legal theory. All the proceeds used in the alleged money laundering were
derived from the mortgage transactions, and each of those transactions included
both the dismissed charges (bank fraud and false statements) and the not-dis-
missed charge (wire fraud). In other words, all the proceeds were derived from
wire fraudSSthere was none from bank fraud or false statements alone.
Further, the jury found that Castle participated in the wire fraud. The
special verdict on the conspiracy count found her guilty of all three objects of the
conspiracy (bank fraud, wire fraud, and false statements), and she was found
guilty on all nine individual counts of wire fraud. Because the verdict makes
plain that the jury believed Castle committed wire fraud, it is not possible that
the money-laundering conviction rests on proceeds only from the dismissed bank
fraud or false statements theories.
Stated another way, the verdict indicates that (1) the conspiracy used pro-
ceeds from the mortgage transactions to promote further mortgage transactions,
and (2) all of those mortgage transactions contained wire fraud. There is thus
no doubt that the jury found Castle was a member of a conspiracy that used the
proceeds from wire fraud to promote further wire fraud and, therefore, commit-
12
Nos. 07-60247, 07-60079
ted money laundering.8
D.
Castle contests the denial of a continuance. Before trial, she substituted
new counsel. Three days later, her new counsel moved for a continuance, which
was denied two days after that. The court, however, extended the motions dead-
line several weeks, and trial did not begin until more than six weeks later.
“Trial judges have broad discretion in deciding requests for continuances,
and we review only for an abuse of that discretion resulting in serious prejudice.”
United States v. German, 486 F.3d 849, 854 (5th Cir. 2007).
In reviewing the denial of a continuance, this court looks to the to-
tality of the circumstances, including
(a) the amount of time available;
(b) the defendant’s role in shortening the time needed;
(c) the likelihood of prejudice from denial;
(d) the availability of discovery from the prosecution;
(e) the complexity of the case;
(f) the adequacy of the defense actually provided at trial;
and (g) the experience of the attorney with the accused.
United States v. Walters, 351 F.3d 159, 170 (5th Cir. 2003) (internal quotation
marks and citations omitted). “If the challenged decision is neither arbitrary nor
unreasonable, we must uphold the trial court’s decision to deny the continuance,
even when we consider the decision to be a harsh one.” United States v. Hughey,
147 F.3d 423, 431 (5th Cir. 1998).
Although she points to no specific prejudice, Castle generally argues that
“this was a complex, massive document intense case that required numerous
hours of preparation, review and research.” Under even more dire circumstanc-
es, however, where counsel was given only ten days to prepare in a case that in-
8
Under the money-laundering statute, wire fraud is a defined “specified unlawful” activ-
ity. 18 U.S.C. § 1956(c)(7) (incorporating all unlawful acts listed in 18 U.S.C. § 1961(1), which
includes wire fraud).
13
Nos. 07-60247, 07-60079
volved “ten defendants, even more witnesses, and voluminous discovery,” we
found that denial of a request for continuance was not an abuse of discretion, be-
cause “there [was] no evidence that [the defendant] was seriously prejudiced by
the denial of his request for a continuance.” United States v. Lewis, 476 F.3d
369, 387 (5th Cir. 2007). We also noted the effectiveness of trial counsel. Id.
(“[Defendant]’s attorney effectively challenged the witnesses . . ., made intelli-
gent arguments in his opening and closing statements . . ., and benefitted from
the arguments of other defense counsel . . . .”).
As in Lewis, there is no evidence that Castle was seriously prejudiced, and
her counsel did an adequate job at trial. This is indeed a complicated case, but
the court showed reasonableness and flexibility by adjusting the motions dead-
line; counsel had several weeks to prepare; Castle benefited from having two co-
defendants each represented by his own counsel; the government cooperated by
providing organized discovery binders; and Castle’s counsel is a seasoned attor-
ney. There is no indication of substantial prejudice.
E.
Castle alleges that cumulative error at trial violated her right to due pro-
cess. Although she describes a laundry list of grievances, she does not fully ex-
plain them and often does not cite the record or relevant law.9 As a result, most
of the matters are waived for inadequate briefing.10
Castle gives some attention to her allegation that in closing argument the
9
For example, without citing either the record or law, Castle states merely that “[t]he
court below used a ‘blind strike’ method of jury selection, thereby depriving your appellant of
being able to exercise all of her limited peremptory strikes.” Two other one-sentence argu-
ments contain citations, but the cited cases have no relevance to the appeal.
10
See FED. R. APP. P. 28(a)(9)(A); L & A Contracting Co. v. S. Concrete Servs., 17 F.3d
106, 113 (5th Cir. 1994) (waiver for failing to cite authority); United States v. Beaumont, 972
F.2d 553, 563 (5th Cir. 1992) (failure to argue adequately).
14
Nos. 07-60247, 07-60079
prosecution made “an indirect comment on appellants [sic] Fifth Amendment
rights”,11 improperly attempted to infer guilty knowledge or intent, argued mat-
ters not in evidence, and made incorrect statements about the presumption of
innocence. None of those justifies reversal.
First, the government explains that the prosecutor was not commenting
on defendant’s choice to remain silent when the he stated that “[defendant]
wants you to turn this blind eye and say she’s not involved”; instead, he was re-
sponding to Castle’s argument that she could not be held responsible, because
it was her secretary who signed the closing papers. Second, Castle did not object
to the alleged inferences of knowledge or intent; we therefore review only for
plain error,12 and she has not borne that burden. Third, the court did sustain an
objection as to the prosecutor’s statement on matters not in evidence. Fourth,
the government’s comments about the presumption of innocence were merely
statements that it had met its burden of proof, a type of closing argument that
we have approved.13
F.
Castle raises four alleged sentencing errors. “[W]e review the district
11
Castle does not cite to the record but quotes the prosecutor as having said that “now
she wants to turn a blind eye and say she’s not involved, she doesn’t know . . . and further, . . .
so if something comes up, she can say, well, I didn’t sign this . . . she knew something was
wrong.” That quotation is stitched together from disparate comments made across eight pages
of closing argument transcript.
12
To prove plain error, Castle must “show (1) there was error, (2) the error was plain,
(3) the error affected [her] ‘substantial rights,’ and (4) the error seriously affected ‘the fairness,
integrity or public reputation of judicial proceedings.’” United States v. Jones, 489 F.3d 679,
681 (5th Cir. 2007) (quoting United States v. Olano, 507 U.S. 725, 732, 734 (1993)).
13
See, e.g., Bridge v. Lynaugh, 838 F.2d 770, 774 n.1 (5th Cir. 1988) (“[T]he prosecutor’s
argument was that the evidence presented by the state was sufficient to overcome defendant’s
presumption of innocence, but that in order to convict defendant, the government would have
to prove all the necessary elements beyond a reasonable doubt. The prosecutor merely argued
that the government had carried that burden.”).
15
Nos. 07-60247, 07-60079
court’s interpretation and application of the [Sentencing] Guidelines de novo.
We will accept findings of fact made in connection with sentencing unless clearly
erroneous.” United States v. Armendariz, 451 F.3d 352, 357 (5th Cir. 2006) (in-
ternal citation omitted).
1.
Castle alleges that the district court improperly sentenced her under
U.S.S.G. § 2S1.1 (money laundering) instead of § 2B1.1 (fraud and deceit). The
court, however, correctly followed § 3D1.2, which instructs that “counts involving
substantially the same harm shall be grouped together into a single Group.”
The district court was required to “group” together [defendant’s]
fraud and money laundering offenses because those crimes involved
the same victim and involved multiple acts that were linked by a
common illegal objective or part of a common scheme. Once
grouped, the district court properly determined that money laun-
dering produced the higher offense level and properly imposed sen-
tence under that guideline, § 2S1.1.
United States v. Powers, 168 F.3d 741, 753 (5th Cir. 1999) (citation omitted).
2.
Castle contends that the court improperly calculated Countrywide’s losses
to determine whether an offense-level increase applied. Specifically, the court
examined Countrywide’s business recordsSSadmitted as evidence during trial
and summarized in the presentence report (“PSR”)SSthat showed a $1,450,388
loss; the court applied a sixteen-level increase for losses in excess of $1 million.14
“A [PSR] generally bears sufficient indicia of reliability to be considered
as evidence by the trial judge in making the factual determinations required by
14
That increase is pursuant to § 2S1.1(a)(2), which instructs the court to increase the
offense level based on a table found in §-2B1.1.
16
Nos. 07-60247, 07-60079
the sentencing guidelines. A district court may adopt facts contained in the PSR
without further inquiry if the facts have an adequate evidentiary basis and the
defendant does not present rebuttal evidence.” United States v. Alford, 142 F.3d
825, 831-32 (5th Cir. 1998) (internal citations and quotation marks omitted).
Castle says that the court erred in relying on the PSR and should have re-
quired “Court records showing actual ‘sales’ for each and every property . . . .”
But Countrywide’s business record documentation was an adequate evidentiary
basis, and Castle has not carried her burden “of showing that the information
in the PSR relied on by the district court is materially untrue.” Id. at 832 (cita-
tion and internal quotation marks omitted). Castle also claims that the court in-
correctly “‘ignored’ what money [Countrywide] received from the foreclosure
and/or sales” of the fraudulently purchased homes, but those figures were expli-
citly calculated in the PSR.
3.
Castle avers that the court erred in applying an enhancement for use of
a “special skill.” She argues that no special skill was used, and, in any case, she
did not “significantly facilitate[] the commission or concealment of the offense”
as required by the sentencing guidelines. See U.S.S.G. § 3B1.3.
The guideline commentary, however, specifically mentions lawyers as an
example of those possessing a special skill.15 In the authority Castle relies on,
United States v. Hemmingson, 157 F.3d 347, 359-60 (5th Cir. 1998), the special-
skill enhancement did not apply, because the defendant, although a lawyer, had
not performed any legal services. By comparison, Castle acted as a lawyer and
rendered legal services in performing the mortgage closing. The district court’s
15
U.S.S.G. § 3B1.3 cmt. n.4 (“‘Special skill’ refers to a skill not possessed by members
of the general public and usually requiring substantial education, training or licensing. Exam-
ples would include . . . lawyers . . . .”).
17
Nos. 07-60247, 07-60079
conclusion that it was “obvious to me and to everyone else that’s been around the
real estate practice that there is a special skill” was therefore not erroneous.
4.
Castle claims a disparity between her sentence and those of her co-con-
spirators. But “a disparity of sentences among co-defendants does not, without
more, constitute an abuse of discretion. The defendants cannot rely upon their
co-defendants’ sentences as a yardstick for their own.” United States v. Devine,
934 F.2d 1325, 1338 (5th Cir. 1991) (internal citations omitted).
IV.
At oral argument, the government indicated that it would abandon its ap-
peal of the dismissal of the bank fraud-related charges if Castle’s and Stalna-
ker’s other convictions were upheld.16 Having found no error in regard to those
convictions or sentences, we therefore do not reach the bank fraud issue.
AFFIRMED.
16
Specifically, at oral argument the government’s attorney stated, “If the court were
to otherwise find the defendants appropriately guilty and convicted of the other counts, we
would not be asking the court to reach the bank fraud issue.” He explained that addressing
the issue would be unnecessary, because it would not affect the defendants’ sentences beyond
a potential $100 special assessment.
18