United States v. Rose Marks , 619 F. App'x 904 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10928
Non-Argument Calendar
________________________
D.C. Docket No. 9:11-cr-80072-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSE MARKS,
a.k.a. Joyce Michael,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 4, 2015)
Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
Rose Marks appeals her convictions and total 121-month sentence for the
following counts related to a fortune-telling fraud scheme: one count of conspiracy
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to commit mail and wire fraud, 18 U.S.C. § 1349; one count of mail fraud, 18
U.S.C. § 1341; seven counts of wire fraud, 18 U.S.C. § 1343; one count of
conspiracy to commit money laundering, 18 U.S.C. § 1956(h); two counts of
money laundering, 18 U.S.C. § 1957; and two counts of filing a false tax return, 26
U.S.C. § 7206(1). On appeal, Marks argues that the district court erred by not
individually questioning all of the members of the venire panel during voir dire
after several panel members indicated that they could not be fair and impartial.
She also contends that the district court erred in concluding that the government
did not violate Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), Giglio v.
United States, 405 U.S. 150, 92 S. Ct. 763 (1972), or the Jencks Act, 18 U.S.C. §
3500. Finally, Marks asserts that the court erred by finding, for sentencing
purposes, that the loss amount in this case was $17.8 million.
I.
Generally, we review the district court’s method of conducting voir dire for
abuse of discretion. United States v. Hill, 643 F.3d 807, 836 (11th Cir. 2011).
However, if a party fails to preserve an objection for appeal, as in this case, we will
not reverse unless the party can show plain error. See United States v. Khoury, 901
F.2d 948, 966 (11th Cir. 1990). Under plain-error review, the defendant must first
demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error
affected substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
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Cir. 2005). If those conditions are met, we may choose to exercise our discretion
to correct the forfeited error only if the error seriously affects the fairness,
integrity, or reputation of judicial proceedings. Id. For an error to be plain there
must be some controlling authority—such as a statute, Supreme Court decision, or
a decision of this Court—that squarely supports the defendant’s argument. United
States v. Pantle, 637 F.3d 1172, 1174-75 (11th Cir. 2011).
The district court’s voir dire only needs to provide reasonable assurance to
the parties that any prejudice of the prospective jurors would be discovered. Hill,
643 F.3d at 836. Courts have ample discretion in determining how best to conduct
voir dire because the obligation to impanel an impartial jury lies in the first
instance with the trial judge and that judge must rely largely on his immediate
perceptions. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S. Ct. 1629,
1634 (1981). To find that the court was constitutionally compelled to question the
venire on a particular subject, the failure to ask the questions “must [have]
render[ed] the defendant’s trial fundamentally unfair.” Mu’Min v. Virginia, 500
U.S. 415, 425-26, 111 S. Ct. 1899, 1905 (1991).
The district court did not plainly err by not individually questioning each of
the members of the venire about their potential biases with respect to Marks’s
occupation as a fortune teller or the source of funds for her defense. Although
some of the jurors expressed that they did not believe they could fairly decide a
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case in which a fortune-teller was alleged to have engaged in fraud or speculated
about the source of Marks’s defense funds, these comments merely revealed the
prospective jurors’ own biases. Moreover, after the prospective jurors indicated
that they could not be impartial, the court asked the other members of the panel if
they could presume Marks to be innocent. No other prospective jurors responded
that they were biased by the comments, even after the court told them to inform the
court if they changed their mind regarding their ability to be impartial at any time
during the selection process. These comments, therefore, did not create a
likelihood of “potential actual prejudice” on the part of the remaining panel
members. See United States v. Chastain, 198 F.3d 1338, 1347-48 (11th Cir. 1999);
United States v. Daniels, 986 F.2d 451, 455 (11th Cir. 1993), readopted in relevant
part on reh’g, 5 F.3d 495, 496 (11th Cir. 1993). Marks’s argument that the court
was constitutionally compelled to individually question the other members of the
venire panel about the comments fails because her allegations about the effect of
the comments on the other members of the panel are speculative and do not show
that her trial was rendered fundamentally unfair. See Mu’Min, 500 U.S. at 425-26,
111 S.Ct. at 1905.
Even assuming, arguendo, that Marks could show that the court erred in
conducting voir dire, she has not demonstrated that any such error was plain;
Marks cites no binding authority that squarely supports her argument. See Pantle,
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637 F.3d at 1174-75. Therefore, Marks’s claim must fail under plain error review.
See Rodriguez, 398 F.3d at 1298.
II.
Generally, we review for an abuse of discretion a district court’s decision not
to dismiss an indictment for alleged prosecutorial misconduct in failing to provide
Brady, Giglio, or Jencks Act material to the defendant. See United States v.
Jordan, 316 F.3d 1215, 1248-49 (11th Cir. 2003).
The prosecution commits a Brady violation where the prosecution
suppresses material evidence favorable to the defendant, irrespective of the good
faith or bad faith of the prosecution. 373 U.S. at 87, 83 S.Ct. at 1196-97. To
establish a Brady violation, the defendant must show that the prosecution
possessed favorable evidence not given to the defendant, and that, had the evidence
been disclosed to the defense, a reasonable likelihood exists that the outcome of
the proceedings would have been different. United States v. Hansen, 262 F.3d
1217, 1234 (11th Cir. 2001).
A Giglio violation occurs “where the prosecutor knowingly used perjured
testimony, or failed to correct what he subsequently learned was false testimony,”
and requires a less stringent showing of a reasonable likelihood the falsehood
could have affected the judgment of the jury. United States v. Alzate, 47 F.3d
1103, 1109-10 (11th Cir. 1995).
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The Jencks Act requires that the government provide reports or summaries
of prior interviews with testifying witnesses where those reports or summaries are
“substantially verbatim, contemporaneously recorded transcripts” or are “signed or
otherwise adopted by the witness.” Jordan, 316 F.3d at 1255; see 18 U.S.C. §
3500(b), (e). An agent’s raw notes or summaries of interviews are not Jencks Act
material unless they use “the nearly exact wording or phrasing the witness uttered
during the interview; if only some of the exact wording is used, [they are] not
Jencks material.” Jordan, 316 F.3d at 1255.
Marks can point to no favorable evidence that the government possessed but
did not turn over to the defense, and therefore she cannot show a Brady violation.
See Hansen, 262 F.3d at 1234. Indeed, her entire argument on appeal rests on the
fact that the government did not possess any record of Detective Stack’s prior
interviews with witnesses. Likewise, her argument that the government committed
a Giglio violation fails because she to points to no specific testimony the
government presented that it knew to be false. See Alzate, 47 F.3d at 1109-10.
Finally, Marks cannot show that the government violated the Jencks Act because,
even if Detective Stack had taken notes of his interviews with witnesses, such
notes would not have constituted Jencks material unless they were “substantially
verbatim, contemporaneously recorded transcripts” of the interviews. Jordan, 316
F.3d at 1255. Marks points to no such material the government possessed but did
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not give to the defense.
III.
We review for clear error a district court’s determination of loss amount for
sentencing purposes. United States v. Medina, 485 F.3d 1291, 1303 (11th Cir.
2007). However, we will not review an error complained of on appeal where the
party invited or induced the district court into making the error. United States v.
Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).
Under U.S.S.G. § 2B1.1, a defendant’s base offense level is enhanced by 20
levels if the defendant’s actions caused a loss of more than $7 million, but less than
or equal to $20 million. See U.S.S.G. § 2B1.1(b)(1)(K), (L). If the loss caused by
the defendant is more than $2.5 million but less than or equal to $7 million, the
defendant’s offense level is increased by 18. See id. § 2B1.1(b)(1)(J), (K). The
district court need “only make a reasonable estimate of the loss” caused by the
defendant. Id. § 2B1.1 cmt. n.3(C).
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We will
not reverse a sentence as substantively unreasonable unless we are “left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the [18 U.S.C.] § 3553(a) factors.” Id. at 1191 (quotation
omitted). We ordinarily expect a sentence within the Guidelines range to be
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reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Here, Marks invited any error by the court in enhancing her offense level by
20 under § 2B1.1(b)(1)(K) because, at her sentencing hearing, she asked the court
to “find that the amount of loss was $17.8 million” and argued that she should
receive the 20-level enhancement. She thus invited any error and cannot now
claim on appeal that the district court should have found a loss amount under $7
million. See Brannan, 562 F.3d at 1306. Additionally, to the extent that Marks
argues that her sentence is substantively unreasonable, her argument lacks merit
because the district court properly considered § 3553(a) factors and imposed a
sentence within the Guidelines range. See Pugh, 515 F.3d at 1190; Hunt, 526 F.3d
at 746.
Upon review of the record and consideration of the parties’ briefs, we
affirm. 1
AFFIRMED.
1
To the extent Marks takes issue with testimony presented to the grand jury, we conclude
that Marks’s passing references to this matter are not sufficient to preserve the issue for review.
See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
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