United States v. Frank Marfo ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4910
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK MARFO,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:11-cr-00657-MJG-3)
Argued: March 19, 2014 Decided: May 23, 2014
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Kenneth Everett McPherson, KENNETH E. MCPHERSON, CHTD.,
Riverdale, Maryland, for Appellant. John Francis Purcell, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Gregory W. Gardner, LAW OFFICES OF GREGORY
W. GARDNER, PLLC, Washington, D.C., for Appellant. Rod J.
Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frank Marfo (“Marfo”) appeals his convictions for murder
for hire, bank fraud, conspiracy, and other offenses, alleging
multiple evidentiary errors stemming from his trial. For the
reasons that follow, we affirm.
I.
From May 2009 through November 2011, Marfo participated in
a scheme to steal money orders and checks and to defraud banks
in Maryland and elsewhere. The scheme involved, first, the
theft – principally by Marfo – of money orders and checks from
rent deposit boxes located at apartment complexes in Maryland,
Virginia, and Delaware. Tavon Davis (“Davis”) and Bruce Byrd
(“Byrd”), at Marfo’s direction, recruited primarily homeless
drug addicts to open fraudulent business checking, savings, and
payroll accounts at banks in Maryland and New Jersey. These
individuals were directed to use their own personal
identification, in addition to documents provided by Marfo and
Davis, which purported to authenticate the fraudulent businesses
under the names that the accounts were being opened. Marfo,
Davis, and other members of the fraud conspiracy would alter the
payee name of the stolen money orders and checks to correspond
to the name of a fraudulent business account, following which
they would deposit the stolen money orders and checks into the
2
fraudulent accounts and then withdraw the deposited funds
through ATMs and other means. Davis estimated that between $1
million and $1.5 million worth of stolen money orders were
deposited and withdrawn from various banks in this manner.
In May 2009, Isaiah Callaway (“Callaway”) was recruited by
Davis to participate in the bank fraud scheme. Davis and Marfo
directed Callaway to open fraudulent bank accounts, deposit
stolen money orders into fraudulent accounts, withdraw deposited
funds from the fraudulent bank accounts, and recruit and pay
individuals to open other fraudulent business accounts.
On December 29, 2010, Callaway was arrested by Baltimore
County police while he was in the process of directing two
individuals to open fraudulent business accounts at TD Bank and
Bank of America. Callaway was charged under Maryland law with
possession of counterfeit documents and theft. Following his
arrest, Callaway was interviewed by detectives, in the course of
which Callaway admitted his participation in the bank fraud
scheme, but did not identify anyone in particular.
After Davis and Marfo learned of Callaway’s arrest, Davis
met with Callaway immediately upon his pre-trial release on the
Maryland fraud charges. In January 2011, Davis referred
Callaway to Larry Feldman (“Feldman”), a Baltimore attorney, to
represent Callaway in relation to those charges.
3
In March 2011, U.S. Postal Inspector Monifa Hamilton
(“Inspector Hamilton”), who had been investigating the deposit
of stolen and altered money orders into fictitious business
accounts at banks in Maryland and Virginia, contacted Feldman
and informed him that federal law enforcement officials were
interested in interviewing Callaway about the bank fraud scheme.
In April 2011, Assistant United States Attorney Tamara Fine
(“AUSA Fine”) for the District of Maryland, who was assisting
federal law enforcement officers in their investigation of the
bank fraud scheme, informed Feldman that she and federal law
enforcement officials wished to interview Callaway in order to
obtain information about the scheme, including the identity of
other participants. That same day, Feldman contacted Davis and
informed him that a federal prosecutor and law enforcement
officials were seeking to interview Callaway about the bank
fraud scheme.
Between April 5, 2011, and April 11, 2011, Davis, Byrd, and
Marfo communicated and met several times to discuss the threat
to the fraud scheme posed by the arrest and possible cooperation
of Callaway. They also discussed the murder for hire of
Callaway by Byrd in order to prevent Callaway from providing
federal law enforcement officers with information about the
scheme. On April 11, 2011, Callaway was found dead in a car in
Baltimore having been shot multiple times in the head.
4
In May 2011, Michael Copeland (“Copeland”), accompanied by
his attorney, came forward with information about the murder of
Callaway. Copeland, also involved in the bank fraud scheme,
explained that Callaway had been murdered by an unknown
triggerman hired by Davis and Marfo for the purpose of
preventing Callaway from identifying Davis and Marfo to federal
authorities in connection with the scheme. It was at this
meeting with federal investigators that Copeland agreed to allow
his future meetings with Davis to be videotaped and recorded.
During the course of these recorded meetings between May
2011 and October 2011, Davis made several statements
incriminating himself in the bank fraud scheme and the murder.
Davis told Copeland that if he were to be arrested, he would
admit the bank fraud but deny the murder. Davis also told
Copeland that he was not concerned that either the triggerman or
Marfo would testify against him for the murder because they were
“just as involved as he was. It wouldn’t behoove them at all.”
(J.A. 409.) Davis also described the fraud scheme in detail,
including an account of trips he and Marfo made to steal money
orders at apartment complexes in several states. (J.A. 409–11.)
Davis was arrested on November 9, 2011, and was immediately
permitted to meet privately with appointed counsel. He agreed
to cooperate and admitted his role in the murder of Callaway.
Davis implicated Marfo in the murder and identified Byrd as the
5
triggerman, stating that Byrd was paid $2,000, to which Davis
and Marfo contributed equally. Under agent supervision, Davis
arranged a recorded meeting with Byrd later that day, following
which Byrd was arrested.
From jail, and under the supervision of investigators,
Davis continued to have contact with Marfo. During their
recorded conversations, Marfo revealed that he was still
involved in the bank fraud scheme. Investigators directed Davis
to tell Marfo that he had someone who could meet with Marfo and
deposit stolen money orders – an undercover agent. The
resulting operation led to Marfo’s arrest on February 13, 2012.
On February 23, 2012, a grand jury sitting in the District
of Maryland returned a seven-count Superseding Indictment
against Marfo, Davis, and Byrd, charging (1) conspiracy to use
interstate communication facilities in the commission of murder
for hire, resulting in the death of Callaway, in violation of 18
U.S.C. § 1958(a); (2) use of interstate communication facilities
in the commission of murder for hire resulting in the death of
Callaway, in violation of 18 U.S.C. § 1948(a); (3) conspiracy to
murder a witness resulting in the death of Callaway, in
violation of 18 U.S.C. § 1512(a)(1)(C); (4) murder of a witness
resulting in the death of Callaway, in violation of 18 U.S.C.
§ 1512(a)(1)(C); (5) use and discharge of a firearm during and
in relation to crimes of violence, in violation of 18 U.S.C.
6
§ 924(c); (6) conspiracy to commit bank fraud, in violation of
18 U.S.C. § 1349; and (7) attempted bank fraud, in violation of
18 U.S.C. § 1349. Prior to trial, Davis and Byrd entered guilty
pleas on certain counts pursuant to separate plea agreements
that provided leniency at sentencing in exchange for testimony
on behalf of the Government in the trial against Marfo.
A jury returned guilty verdicts against him on all counts
and the district court imposed concurrent sentences of life
imprisonment on four counts, a consecutive sentence of 120
months on another count, and concurrent sentences of 57 months
on two counts.
Marfo timely appealed, and we have jurisdiction under 28
U.S.C. § 1291.
II.
A.
Marfo raises eight issues on appeal, contending that the
district court erred by (1) permitting Davis’ attorney, Murphy,
to testify pursuant to Federal Rule of Evidence 801(d)(1)(B) as
to prior consistent statements made to him by Davis implicating
Marfo in the Callaway murder; (2) permitting Murphy to testify
during re-examination that he had told Davis that the prosecutor
was “tough but fair”; (3) commenting on the weight of the
evidence; (4) allowing testimony concerning several prior acts
7
and statements by Marfo, in violation of Federal Rule of
Evidence 404(b); (5) allegedly allowing the Government to
disparage defense counsel; (6) directing the jury to reach a
unanimous verdict; (7) instructing the jury that it could infer
consciousness of guilt from Marfo’s false alibi; and (8) failing
to instruct the jury that it could acquit Marfo based on
accomplice testimony.
Marfo concedes that he did not object in the district court
to any of the items he now claims are error (except one
statement in issue five above). Our review is thus for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 732 (1993); United States v. Hastings, 134 F.3d 235,
239 (4th Cir. 1998). “In order to establish our authority to
notice an error not preserved by a timely objection, [Marfo]
must show that an error occurred, that the error was plain, and
that the error affected his substantial rights.” Hastings, 134
F.3d at 239; see also Olano, 507 U.S. at 732. Even if Marfo can
satisfy these requirements, correction of the error remains
within our sound discretion, which we “should not exercise . . .
unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Olano, 507 U.S. at
732 (internal quotations and alteration omitted). On the single
occasion that Marfo raised an objection below, we review the
8
district court’s evidentiary rulings for an abuse of discretion.
United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007).
We address each of Marfo’s claims in turn.
1.
Marfo first contends that the district court erred in
permitting Davis’ attorney, Murphy, to testify pursuant to
Federal Rule of Evidence 801(d)(1)(B) as to prior consistent
statements made to him by Davis implicating Marfo in the
Callaway murder.
Under Rule 801(d)(1)(B), a prior consistent statement of a
person who has testified and been subject to cross-examination
is not hearsay and is admissible when the statement is offered
to “rebut an express or implied charge against him of recent
fabrication, improper influence or motive.” United States v.
Hedgepeth, 418 F.3d 411, 422 (4th Cir. 2005). A prior
consistent statement is admissible under Rule 801(d)(1)(B) as
substantive evidence if the statement was made before the
declarant had a motive to falsify. United States v. Henderson,
717 F.2d 135, 138 (4th Cir. 1983).
We find that the district court did not err, let alone
plainly err, as Davis’s prior consistent statements were offered
in response to accusations of improper motive and recent
fabrication. Callaway was murdered on April 11, 2011. By May
9
22, 2011, Copeland had presented himself to investigators and
was recording meetings with Davis, who Copeland implicated in
the Callaway murder along with Marfo. Davis’ recorded
statements made it clear that he was worried he would ultimately
be charged for the bank fraud scheme, Callaway’s murder, or
both. On October 14, 2011, Copeland recorded a conversation
with Davis after Davis met with Murphy. Davis’s description of
the meeting revealed that he had been very frank with Murphy
because Davis wanted a professional assessment of what he was
facing if prosecuted for either the bank fraud scheme or the
murder.
After Davis was arrested on November 9, 2011, and agreed to
cooperate, investigators eventually learned that in his October
2011 meetings with attorney Murphy, Davis implicated Marfo in
the Callaway murder. Prior to trial, Davis executed a waiver of
his attorney-client privilege with Murphy. Following the cross-
examination of Davis, in which Marfo’s counsel expressly accused
Davis of fabricating the testimony implicating Marfo in the
Callaway murder for the purpose of receiving a reduced sentence,
the Government called Murphy to testify as to Davis’ prior
consistent statements about Marfo’s involvement. Indeed, prior
to Murphy’s testimony, the district court explicitly instructed
the jury:
10
The defense theory is that speaking to Mr.
Murphy was part of Mr. Davis’s scheme, they
say, to fabricate the allegations against
Mr. Marfo.
So when you listen to what Mr. Murphy says,
bear that in mind, and you will decide
whether it supports Mr. Davis’s testimony
before you or it doesn’t.
(J.A. 433.) Given the cross-examination of Davis and the
instruction above, it is clear that Murphy’s testimony was
offered to rebut accusations of improper motive and recent
fabrication.
Moreover, Davis’ statements to Murphy were made prior to
the existence of any improper bias or motive to fabricate.
Davis’ meetings with Murphy occurred prior to Davis’ arrest. At
trial, Murphy was permitted to testify that in their meetings,
Davis told him, inter alia, that Marfo was involved in both the
fraud and murder; Marfo helped hire and pay for the triggerman;
and Davis and Marfo met with the triggerman either shortly
before or after the murder occurred.
Davis’ statements were not made to a law enforcement
officer, but rather to his own attorney, a confidante with whom
his communications were protected by the attorney-client
privilege. That Davis’ statements preceded a motive to
fabricate is further evidenced by his admission of his own
culpability in the murder, as well as his failure to incriminate
Marfo to a greater extent than he incriminated himself, and by
11
his failure to incriminate Copeland at all. As the prior
consistent statements were properly admitted pursuant to Rule
801(d)(1)(B), the district court did not err.
2.
Marfo next contends that the district court erred by
permitting Murphy to testify during re-direct examination that
he had told Davis that Government counsel was “tough[] but
fair.” (J.A. 494.) We reject Marfo’s contention, as he makes
his claim out of context. The challenged testimony was in
response to defense counsel’s cross-examination of Murphy,
regarding what Murphy had told Davis in their meeting, during
which defense counsel painted the following portrait of the
prosecutor:
[Defense counsel]: [Government counsel is]
[k]ind of like a terrier, when it gets ahold
of your pants, it won’t let go.
[Government]: Objection. . . .
[Murphy]: I don’t know that I told him that.
I told him [being prosecuted by the AUSA]
wasn’t a good sign for him, right. . . .
[Defense counsel]: Fair enough. Bottom
line, [being prosecuted by the AUSA] wasn’t
a good sign for Tavon Davis.
(J.A. 468–69.) In response, during its re-direct examination of
Murphy, the Government completed the account of what Murphy told
Davis:
12
[Government]: Now you testified before about
some discussions you had with Mr. Davis
about my co-counsel, Mr. Purcell; is that
right?
[Murphy]: Yes.
[Government]: Do you remember saying
anything to Mr. Davis about whether or not
Mr. Purcell is fair?
[Murphy]: Yes, I do. I told him he was
tough, but fair. . . . [Davis] asked me
about his integrity, and I told him that it
was my experience that [the AUSA] was an
honest prosecutor.
(J.A. 493–94.) Even assuming, arguendo, that the district court
erred by allowing this testimony, to which Marfo failed to
object, Marfo has not demonstrated that this presumed error
affected his substantial rights by causing him actual prejudice.
See Hastings, 134 at 244 n.8 (4th Cir. 1998) (“On review for
plain error, the defendant bears the burden of establishing that
he has been prejudiced by an unpreserved error.”). To meet this
standard, Marfo must demonstrate that the presumed error
“resulted in his conviction.” Id. Marfo has not satisfied his
burden because the factual evidence against him overwhelmingly
supports his conviction. The district court thus did not err in
permitting the re-direct examination of Murphy.
13
3.
Marfo also contends that the district court erred by
commenting on the weight of the evidence; specifically, by
instructing the jury as to the Government’s presentation of
circumstantial evidence. Marfo alleges that the error was
contained in the following instruction:
The government has the burden of proof, as I
said, beyond a reasonable doubt. Proof can
be done in two ways. One is direct
evidence, and that is there’s evidence,
people who say I saw this happen, I heard
these words spoke, things like that.
Then there can be circumstantial evidence,
and there is plenty of that. People will
say well, I saw A happen, and each side says
well, if you find that A happened, you
should find that B is true, and the other
side will say, but you can find that C is
true. In short, circumstantial evidence is
good evidence, as good as you determine it
should be under the circumstances.
(J.A. 613–14.) Marfo, overlooking context, contends that the
district court, by including the phrase “and there was plenty of
that” in its instruction, basically conveyed to the jury its
opinion on the weight of the evidence. We find, however, that
the phrase – which followed the court’s description of several
examples of direct evidence – similarly indicated that
circumstantial evidence, like direct evidence, can take many, or
“plenty,” of forms.
14
Nor is there any support in the record for Marfo’s
contention that the district court improperly “quantified” the
amount of circumstantial evidence, or that it placed its
“‘controlling’ stamp of approval on the government’s case.”
(Appellant’s Br. 41, 43.) When reviewing jury instructions, we
do not “view a single instruction in isolation,” but rather,
“view an allegedly erroneous instruction in its full context.”
United States v. Tillery, 702 F.3d 170, 176 (4th Cir. 2012).
Here, the complete record reveals that the district court
instructed the jury accordingly: “I have not, during the course
of this trial, suggested what your verdict should be on any of
these charges. I won’t. If you think I did, I haven’t done
right, and you should disregard it anyway.” (J.A. 608–09.) The
district court, therefore, appropriately emphasized its
impartiality. Accordingly, we find that the district court did
not err.
4.
Marfo next contends that the district court erred by
allowing testimony concerning several prior acts and statements
by Marfo. He alleges that the district court erred by admitting
evidence, without objection, of what he now characterizes as
“bad act” evidence, in violation of Federal Rule of Evidence
404(b), specifically (a) his use of marijuana and destruction of
15
evidence of marijuana possession; (b) his prior heroin dealing;
(c) his threat to kill a female witness in a previous case and
another witness in this case, Copeland; (d) his assault of a co-
conspirator; and (e) his participation in a theft scheme at a
local mall.
Under Rule 404(b), a party is not permitted to present
evidence of an accused’s prior crimes, wrongs, or bad acts when
offered to prove character. However, acts that are intrinsic to
the crime are not barred by Rule 404(b) where “inextricably
intertwined or both acts are part of a single criminal episode
or the other acts were necessary preliminaries to the crime
charged.” United States v. Chin, 83 F.3d 83, 88 (4th Cir.
1996); see also United States v. Powers, 59 F.3d 1460, 1464–65
(4th Cir. 1995) (evidence pertaining to chain of events
explaining context, motive, and set-up of crime is properly
admitted if it forms an integral and natural part of an account
of the crime, or is necessary to complete the story of the
crime); United States v. Kennedy, 32 F.3d 876, 885 (4th Cir.
1994) (evidence of other crimes or uncharged conduct “is not
considered ‘other crimes’” for Rule 404(b) purposes if it arose
out of the same series of the transactions as charged offense,
or if necessary to complete story of crime on trial). In such
situations, we need not engage in a Rule 404(b) analysis. See
16
United States v. McBride, 676 F.3d 385, 396 (4th Cir. 2012)
(four-part test).
With these principles in mind, we address each item Marfo
contends transgressed Rule 404(b) and therefore should not have
been permitted into evidence.
a. Marijuana Possession and Destruction
At trial, Davis and James Pearson (“Pearson”) testified
that on July 29, 2011, Marfo was driving them to New Jersey for
the purpose of having Pearson open fraudulent bank accounts when
they were stopped for speeding. At the time of the stop, Marfo
was smoking marijuana, which he swallowed to avoid arrest.
Marfo contends that the district court’s admission of Davis and
Pearson’s testimony – that he possessed marijuana and destroyed
evidence of such – violated Rule 404(b) and constitutes
prejudicial plain error.
We find that the district court did not err in admitting
this evidence because it was intrinsic to the commission of an
act in furtherance of the ongoing bank fraud scheme. The trip
to New Jersey to open additional fraudulent bank accounts, as
well as Marfo’s actions when confronted by the possibility of
arrest, was intrinsic evidence because those acts “arose out of
the same series of transactions as the charged offense, [and] .
. . were necessary to complete the story of the crime on trial.”
17
United States v. Basham, 561 F.3d 302, 327 (4th Cir. 2009)
(admission of evidence relating to defendant’s prior drug use
and sexual relationships was proper under Rule 404(b) to
complete the story of the crime and to put relationships of
parties in context). The evidence was also relevant to
establishing the continuing relationship between Marfo and Davis
after Callaway’s murder, and was thus probative of Marfo’s
motive and participation in the murder conspiracy; after all,
protecting Marfo’s scheme was the motive for the murder. See
United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006)
(“Evidence is necessary, even if it does not relate to an
element of a charged offense, when it furnishes part of the
context of the crime.” (quotation marks omitted)).
Evidence of Marfo’s marijuana possession was also intrinsic
to his use and possession of marijuana as a recruiting tool and
method of payment in the bank fraud scheme. At trial, Andrew
Styron (“Styron”) testified that Marfo recruited him to cash
stolen money orders, open fraudulent accounts, and recruit
others to do the same; that Marfo supplied marijuana to Styron’s
friends as a way of forming relationships that led him to
deposit stolen money orders or open fraudulent accounts for him;
and that Marfo sometimes paid Styron with marijuana to drive him
to apartment complexes in order to steal money orders. The
evidence was further relevant to Pearson’s identification of
18
Marfo as the one who recruited him in relation to the bank fraud
scheme.
In any event, the challenged evidence would have satisfied
Rule 404(b). That Marfo continued his involvement in the fraud
scheme with Davis after Callaway’s murder was powerful evidence
of his motive and participation in the murder scheme. Marfo’s
challenge of Pearson’s identification of him also made evidence
supporting that identification that much more relevant and
necessary. See United States v. Byers, 649 F.3d 197, 206 (4th
Cir. 2011) (cross-examination of government witnesses created a
significant credibility issue). The district court thus did not
err in admitting this evidence.
b. Prior Heroin Dealing
Marfo next contends that the district court erred by
allowing Davis to testify that he and Copeland distributed
heroin through a certain individual identified as “Kofi” (who
introduced Marfo to Davis in 2008), and that from time to time,
Davis distributed heroin to Marfo. On cross-examination,
Marfo’s counsel questioned Davis extensively about Davis’,
Copeland’s, and Byrd’s involvement in the Callaway murder, as
the defense sought to contrast those individuals’ arguably
greater degree of involvement in the murder with Marfo’s
ostensibly lesser role. Marfo also sought to show that Davis’
19
close relationship with Copeland resulted in bias against Marfo,
so that when Davis decided to cooperate, he falsely implicated
Marfo in the murder. Indeed, showing that Davis was biased
against Marfo was a central theme of the defense. Accordingly,
the Government’s decision to present evidence showing that Davis
and Marfo were also involved in crimes, such as the heroin
sales, tended to show that Davis’ relationship with Copeland was
not so unique. Thus, on re-direct examination, the Government
asked a single question of Davis, in response to which Davis
confirmed that he had a heroin source, that he had sold to
Copeland, and that on occasion, he has sold to Marfo.
Marfo contends that the Government “only introduced
evidence of [his] participation in heroin distribution to show
that [he] had a propensity to join conspiracies with the same
men.” (Appellant’s Br. 55.) To the contrary, we find that the
limited testimony about how Davis met Marfo through Kofi (Davis’
drug connection) was probative of the very formation of the
conspiracy between Davis and Marfo. See Kennedy, 32 F.3d at 885
(“Evidence of uncharged conduct is not considered ‘other crimes’
evidence if it arose out of the same series of transactions as
the charged offense, or if it is necessary to complete the story
of the crime on trial.” (quotation marks and alterations
omitted)).
20
Even if considered to be a “bad act” under Rule 404(b),
this evidence was relevant and necessary in establishing the
context of the relationship between Davis and Marfo, which the
jury necessarily had to consider in deciding whether Davis
falsely implicated Marfo. The testimony told the “story” of how
and why Davis met Marfo and whether Davis’ relationship with
Marfo affected his credibility. As the Government may “provide
context relevant to the criminal charges,” we find that the
district court did not err in admitting this evidence. United
States v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007).
c. Threat to Kill Witnesses
Marfo next contends that the district court erred by
admitting a recorded statement by him to Davis on January 12,
2012, that Marfo would “tak[e] care” of and “pop” Copeland when
things “cool[ed] down.” (J.A. 275–79.) Marfo also stated,
“I’ll let him have it, yo, for real,” which Davis understood to
mean that Marfo would murder Copeland. (J.A. 279.)
Marfo also asserts that the district court erred by
admitting a statement he made to Davis – while they were
planning the murder of Callaway – that Marfo wished he had
murdered a female witness in a Baltimore County theft case that
21
resulted from a December 2009 arrest. 1 Davis testified that
while he and Marfo were planning to murder Callaway, Marfo
referred to the state prosecution, stating that he wished he had
killed a female witness in that case. This conversation
necessarily occurred between December 2010 – when Callaway was
arrested – and April 11, 2011, when Callaway was murdered.
Davis testified that at the time of this conversation, Marfo had
just “gone through” the state prosecution (for which he was
still on probation at the time of the Callaway murder), and that
Marfo did not want to go through that again. (J.A. 185.) Davis
stated that, “[n]ow facing it again, [Marfo] wished he had
killed the witness [a woman whose name Davis did not recall] for
the other case.” (J.A. 185.)
Marfo does not dispute that he made these statements.
Instead, he claims that the statement that he wished he had
killed the female witness in the state theft case was admitted
solely as propensity evidence, in violation of Rule 404(b)(1).
1
In December 2009, Marfo and Styron were charged in
Baltimore County, Maryland, with the theft of money orders from
rent deposit boxes and related charges. Styron identified
several individuals, including a woman, whom he and Marfo
recruited to deposit or cash stolen money orders. These
individuals were also identified in police reports written by
the Baltimore County police detectives who investigated and
arrested Marfo and Styron in December 2009. The state charges
were disposed of in October 2010, and Styron was sentenced to
six months’ imprisonment. Marfo received a suspended sentence.
22
As to his recorded statement to Davis on January 12, 2012, Marfo
contends that also was only propensity evidence “to show that
Marfo is the type of bad guy who would kill a witness,” and that
such evidence had no relevance to Callaway’s murder.
(Appellant’s Br. 56.)
We find, however, that both of these statements were
intrinsic to the “story” at trial. Marfo made both statements
during the fraud conspiracy and the murder conspiracy, and
evidence of Marfo’s participation in the former was probative of
his motive and intent to participate in the latter. See Chin,
83 F.3d at 88 (“Other criminal acts are intrinsic when they are
inextricably intertwined or both acts are part of a single
criminal episode or the other acts were necessary preliminaries
to the crime charged.” (quotation marks omitted)). Both
statements were probative of the existence of the ongoing fraud
conspiracy and of Marfo’s motive and intent to murder Callaway
to preserve that ongoing fraud scheme. Marfo’s threats and
statement of intent to kill witnesses in the same case in which
he was charged were intrinsic evidence of consciousness of
guilt.
Moreover, although unnecessary, this evidence could have
been properly admitted under Rule 404(b). We have allowed
evidence of prior threats against witnesses in unrelated cases
as consciousness-of-guilt evidence under Rule 404. See, e.g.,
23
United States v. Higgs, 353 F.3d 281, 312 (4th Cir. 2003);
United States v. Queen, 132 F.3d 991, 993–94 (4th Cir. 1997)
(affirming admission of evidence in witness tampering case that
defendant had intimidated two witnesses in unrelated, earlier
prosecution); Basham, 561 F.3d at 328 (statements by defendant
charged with carjacking that he was willing to kill in an
unrelated matter were “highly probative” of his specific intent
to cause serious harm in carjacking). As the evidence was
intrinsic and would have been properly admitted under Rule
404(b), we find that the district court did not err.
d. Assault of Co-Conspirator Pearson
Marfo also contends that the district court erred by
admitting the testimony of Pearson, in which Pearson described
being assaulted and threatened by Marfo in the presence of Davis
after Marfo discovered that Pearson had withdrawn money from one
of the fraudulent bank accounts. As described by Pearson, the
assault occurred after the July 29, 2011 trip to New Jersey, and
was Pearson’s last contact with Marfo. Davis corroborated
Pearson’s account, stating, “We [Marfo and I] confronted him
[Pearson] about the money that was missing out of the account.
Frank [Marfo] beat him up a little bit.” (J.A. 90.)
Marfo asserts that admitting testimony concerning the
assault amounts to plain error because the evidence was admitted
24
solely for the purpose of showing that Marfo was a violent
person. As with Pearson’s trip to New Jersey, however, we find
that the evidence of Marfo’s assault was intrinsic to the
charged crimes. The assault – which was committed in
retaliation for Pearson’s theft of money from a fraudulent
account into which Marfo’s stolen money orders were deposited –
was an act in furtherance of the ongoing bank fraud conspiracy.
It was thus intertwined with the conspiracy to murder Callaway,
the sole purpose of which was to ensure the survival of the bank
fraud scheme. Because describing the assault was necessary to
tell the complete story of Marfo’s participation in the charged
conspiracies, see Basham, 561 F.3d at 327, the district court
did not err in admitting Pearson’s testimony.
e. Participation in Theft Scheme at Local Mall
Lastly, Marfo contends that the district court “plainly
erred when it allowed the government to introduce evidence that
Marfo participated in an unrelated theft scheme because it is
not probative of anything.” (Appellant’s Br. 58.) At trial,
Styron testified that (apart from smoking marijuana with Marfo)
when he met Marfo, he occasionally sold Marfo items of clothing
stolen by Styron’s friends from a local mall. Styron, however,
did not implicate Marfo in the theft of the clothes or even
assert that Marfo knew that they were stolen. There was thus no
25
“bad act” attributed to Marfo beyond buying clothes from Styron,
which, by itself, is not a “bad act.”
Regardless, we find that Styron’s testimony was intrinsic
to how Marfo and Styron met and how Marfo recruited Styron into
the stolen money order scheme. See Kennedy, 32 F.3d at 885
(“Evidence of uncharged conduct is not considered ‘other crimes’
evidence if it arose out of the same series of transactions as
the charged offense, or if it is necessary to complete the story
of the crime on trial.” (quotation marks and alterations
omitted)). Even if not intrinsic, this evidence would have been
properly admitted pursuant to Rule 404(b), as the Government may
“provide context relevant to the criminal charges.” Cooper, 482
F.3d 658, 663 (4th Cir. 2007). The district court thus did not
err.
f.
In sum, Marfo incorrectly argues that the challenged
evidence was improperly admitted by the district court in
violation of Rule 404(b). To the contrary, in each instance,
the purported “bad act” evidence was intrinsic to the crimes
charged in the indictment. Accordingly, there was no violation
of Rule 404(b), and thus no error – let alone plain error – by
the district court.
26
5.
Marfo next contends that the district court erred by
allegedly allowing the Government to disparage defense counsel.
Specifically, Marfo claims that the district court erred “when
it did not instruct the jury following a remark [by the
prosecutor] disparaging Marfo’s attorney’s objections.”
(Appellant’s Br. 62.) The remark in question occurred near the
end of Copeland’s direct examination, when Copeland had just
confirmed that he was represented by counsel:
[Government]: You have been advised by
counsel throughout; is that right?
[Copeland]: Yes.
[Government]: And continue to be?
[Marfo’s Counsel]: Objection, objection.
[The Court]: What’s the objection?
[Government]: It is [that the above was]
continuing to be an egregious leading
question. Please.
[The Court]: I don’t remember the last
question as leading.
[Government]: I asked if he was represented.
He said yes, at the time of the grand jury.
And I said and [you] continue to be? Now,
Your Honor, if that’s a leading question,
fine.
[The Court]: He is still represented by Mr.
White, I assume.
[Government]: Yes.
27
[The Court]: Okay.
[Government (to Marfo’s Counsel)]: Let’s
have important objections, if you can think
of one.
[Marfo’s Counsel]: Judge, Judge, you’re not
hearing his comments, but they are
continuing. You know, that’s ok.
[Government (to Copeland)]: You were
represented; is that right?
[The Court]: I’m glad you think it was an
important objection, and we can now move on.
Okay.
[Government (to Copeland)]: And you continue
to be represented.
[The Court]: If he didn’t think it was an
important objection, Mr. Purcell
[Government], I probably wouldn’t pay any
attention to it. But perhaps I should make
my own judgment from now [on]. So go ahead
and ask your next question.
(J.A. 407–08 (emphasis added).) The phrase, “Let’s have
important objections, if you can think of one,” is the remark
which Marfo contends was disparaging and denigrated his counsel
in the eyes of the jury. Although it could be characterized as
exasperated and perhaps rude, we find that the remark was not
necessarily denigrating, and certainly does not rise to the
level of plain error on the part of the district court by not
“following up” with a sua sponte instruction about the propriety
of objections. Conversely, the district court instructed the
jury several times that it was the duty of counsel to object.
28
Marfo also overlooks the fact that the district court explicitly
instructed the jury as follows: “I can simply say that nobody
here is trying to hide anything from you. No lawyer has acted
in a way that is, in my judgment, at all improper.” (J.A. 613.)
Marfo has shown no prejudice, nor has he provided any basis for
us to find and take notice of plain error by the district court.
Marfo also contends that it was improper for the Government
to point out, in rebuttal closing argument, that when Marfo’s
counsel argued Davis was untruthful, he failed to explain or
refer to portions of Davis’ testimony in which Davis seemed to
truthfully describe the extent of his involvement in the murder
and described Marfo as being comparatively less involved in
certain facets. 2 The Government observed:
Government: But there’s a reason he didn’t
say anything about why Davis did not
implicate Copeland. Easiest thing in the
world, easiest thing in the world. You know
why? Because [Davis] was telling the truth.
And you know why he was telling the truth?
You saw Mr. Davis going through – he was on
the stand for three days. . . .
But you saw – and one of the points of
credibility that the judge advised you about
is watching a man, watching a witness on
direct and then watching the way they are
acting, what they are saying on cross-
2
Marfo’s objection during the Government’s rebuttal
argument to a comment on Marfo’s counsel’s failure to address
certain aspects of Davis’s testimony is reviewed for an abuse of
discretion. See Delfino, 510 F.3d at 470.
29
examination. Davis was correcting counsel.
He was minimizing Marfo’s role when it was
truthful to do so.
I asked him about 50 times pointed
questions, did Marfo do that? No. Did
Marfo do that? No. Did Marfo do this? No.
Is [Davis] a liar, trying to get bonus
points from the government? Answer that
question. Counsel [Marfo’s] didn’t bring
that up, and he’s not going to. He’s not
paid to do that. He’s paid to dance–
Defense counsel: Objection.
Government: –yell, and sit down.
Defense counsel: Objection to that.
The Court: Let him make his argument.
Government: [Davis] . . . had three days of
opportunity to tell you that Copeland was
involved. . . . But you know, he didn’t
break. Davis didn’t break. He corrected
counsel. He corrected me. [Davis]
minimized Marfo’s role, when appropriate,
and he did that because [Davis] was broken
long before he got in here.
(Dist. Ct. Trial Tr. Closing Arguments 92–93 (Day 8).)
We find that the district court correctly perceived the
Government’s remarks to be a comment on the failure of defense
counsel to discuss the evidence, which is permissible. See
Lockett v. Ohio, 438 U.S. 586, 596 (1978) (prosecutor’s comments
regarding “uncontradicted” evidence did not violate Constitution
when merely responsive to defendant’s failure to produce defense
asserted during opening statement).
30
Most significantly, Marfo is unable to demonstrate that the
Government’s remarks were improper. To reverse a defendant’s
conviction due to a prosecutor’s improper remarks, we must find
that (1) the remarks were improper; and (2) they so prejudiced
the defendant’s substantial rights that the defendant was denied
a fair trial. See United States v. Powell, 680 F.3d 350, 358
(4th Cir. 2012) (prosecutor’s referral to defendant as liar was
not clearly improper).
Here, the Government’s remarks did not tend to mislead the
jury because they merely highlighted defense counsel’s selective
argument about Davis’ credibility. The remarks to which Marfo
objects were isolated, and most importantly, the strength of the
evidence to establish Marfo’s guilt remains unchallenged. Even
if we assume error, it was harmless and could not reasonably
have affected the outcome of the trial, particularly given how
much evidence was presented about Davis’ credibility. At worst,
the Government’s remark on defense counsel’s failure to address
aspects of Davis’ testimony “represents the sort of thrust and
parry in which attorneys typically engage in the course of their
last chance to persuade a jury.” United States v. Runyon, 707
F.3d 475, 513 (4th Cir. 2013). Accordingly, we find that the
district court neither erred nor abused its discretion by
allegedly permitting the Government to disparage Marfo’s
counsel.
31
6.
Marfo also contends that the district court erred by
directing the jury to reach a unanimous verdict. Marfo claims
that the following portion of the district court’s jury
instructions, given before closing arguments, constituted plain
error because it “told [the jurors] that they needed to reach a
verdict.” (Appellant’s Br. 66.)
The third reason to listen extra hard is the
critical thing, and what we’re all about,
and that is what do we owe them? We owe
them a verdict that you have reached, and
the party that didn’t get the verdict that
they want can know for sure, I’m sorry, I
really listened to both sides of the case,
and I just decided this way.
(J.A. 636.) Marfo, again, makes his claim out of context. As
discussed above, a district court’s instructions must be
considered in their entirety. See Tillery, 702 F.3d at 176.
Here, the entirety of the instructions reveals that the
challenged instruction represented the third of three reasons
the district court gave to the jury as to why its members should
listen critically to the closing arguments. Indeed, the court
had explicitly told the jury, “We don’t owe them the verdict
that they want. We can’t give everybody the verdict that they
want.” (J.A. 635 (emphasis added).)
32
The district court also repeatedly expressed deference to
the judgment of the individual jurors and asked no more than
that they consider each others’ views:
It is important to attempt to reach a
unanimous verdict, but only if each of you
agree, after making your own conscientious
decision. As we say, don’t change an honest
belief about the weight and effect of the
evidence just to reach a verdict.
(J.A. 651–52.) A review of the district court’s instructions,
in their entirety, belies Marfo’s contention that the court
improperly directed the jury to reach a unanimous verdict
without “room for disagreement.” (Appellant’s Br. 66.)
Accordingly, the district court did not err.
7.
Marfo further contends that the district court erred by
instructing the jury that it could infer consciousness of guilt
from Marfo’s false alibi. The district court instructed the
jury that an exculpatory statement made by a defendant and found
to be untrue could be considered evidence of a defendant’s
consciousness of guilt:
You have heard testimony that the defendant
made statements out of the courtroom to law
enforcement officials in which the defendant
claimed he was not present at the scene of
certain crimes when they were committed.
The government claims that these alibi
statements were false.
33
If you find that the defendant intentionally
gave a false statement in order to mislead
the investigating authorities that he was
not present at the scene of the crime, you
may, but need not, infer that the defendant
believed that he was guilty. You may not,
however, infer on the basis of this alone
that the defendant is in fact guilty of the
crime for which he is charged.
(J.A. 629–30.) This instruction was based on false exculpatory
statements that Marfo made during his post-arrest interview on
February 13, 2012. Marfo was asked about the Callaway murder
and his relationships with Davis and Byrd, to which Marfo made
false exculpatory statements that were contradicted by other
evidence in the trial. The false statements included Marfo’s
claim that he only knew about Davis’ involvement in the Callaway
murder from reading a newspaper article; that he had no
involvement in the murder; that Marfo only knew Byrd from being
with Davis for a single meeting with him at a local mall; that
Marfo had no knowledge of why Davis and Byrd met; that Marfo had
no knowledge that Davis was involved in the murder; that he had
no prior knowledge of the murder; and that he had not
contributed to the payment for Callaway’s murder.
We think that the district court’s instruction was proper.
It is well-settled that “an exculpatory statement made by a
defendant and found to be untrue [can] be considered evidence of
a consciousness of guilt.” United States v. McDougald, 650 F.2d
532, 533 (4th Cir. 1981). Each of Marfo’s false exculpatory
34
statements were contradicted by evidence at trial. Davis
implicated Marfo in the murder and testified that Marfo had
agreed to the necessity of killing Callaway in order to prevent
him from testifying. Davis testified that he and Marfo
discussed the murder nearly every day, and that Marfo had agreed
that part of the triggerman’s payment would come from his share
of the fraud deposits. Davis also testified that in response to
a call from Byrd, Davis and Marfo met with Byrd because Byrd
wanted to make sure that Marfo was “okay.” Copeland likewise
testified that Davis had told him that Marfo was involved in the
murder and had offered to do it himself. Murphy confirmed that
Davis told him Marfo, whose name Murphy recalled and had written
in his notes, was involved in recruiting and paying the
triggerman, Byrd. Further, in a February 9, 2012, recorded
conversation with Davis, Marfo acknowledged going to meet Byrd
“right before the shit happened.” (J.A. 681.) We find that
Marfo’s statements were “more than general denials of guilt”;
these were statements later contradicted by evidence at trial,
thereby justifying the district court’s instruction on
consciousness of guilt by false alibi.
Marfo also contends that an alibi instruction was
unnecessary because it is undisputed that he was not present at
the actual murder scene. Marfo, however, overlooks that he
clearly denied involvement in a murder conspiracy – one of the
35
crimes with which he was charged. Further, in his post-arrest
statement, Marfo falsely exculpated himself from meeting Byrd
anywhere but at a local mall, which, as noted, was contradicted
by Marfo’s own statement on February 9, 2012.
Marfo further contends that the district court’s
instruction should have included language that his false
exculpatory statements “could have been consistent with
innocence” because “people accused of serious crimes often try
to distance themselves from the criminal activity as much as
possible.” (Appellant’s Br. 71.) Marfo, again, overlooks
context. Merely two paragraphs before the above-mentioned
instruction, the district court instructed the jury that Marfo’s
false exculpatory statements could be “consistent with
innocence.”
You have heard testimony that the defendant
made certain statements outside the
courtroom to law enforcement authorities in
which he claimed that his conduct was
consistent with innocence and not with
guilt. The government claims that these
statements in which he exonerated or
exculpated himself are false.
(J.A. 629 (emphasis added).) The jury was thus properly
instructed as to whether to infer consciousness of guilt from
Marfo’s post arrest statements. Accordingly, we find that the
district court did not err.
36
8.
Marfo further contends that the district court erred by
failing to instruct the jury that it could acquit Marfo based on
accomplice testimony. The court gave the following instruction:
The government is permitted to enter into [a
plea agreement with a witness in exchange
for that witness’s testimony]. You, in
turn, may accept the testimony of such a
witness and convict the defendant on the
basis of this testimony alone if it
convinces you of the defendant’s guilt
beyond a reasonable doubt.
(J.A. 626–27.) Citing United States v. Armocida, 515 F.2d 29,
48 (3d Cir. 1975), Marfo asserts that the district court erred
because it instructed the jury that it could only convict him on
the basis of an accomplice’s uncorroborated testimony; it did
not instruct the jury that it could acquit Marfo on that basis
as well.
In Armocida, the defendant and several co-appellants were
prosecuted for drug distribution and conspiracy. 512 F.2d at
34. The criminal activity surrounding the charges was extensive
and included many accomplices, most of whom accepted plea deals
with the government and testified against the defendant. Id. at
47. The district court instructed the jury that it could
convict on the basis of an accomplice’s uncorroborated
testimony, but did not instruct the jury that it could acquit on
that basis as well. Id. The Third Circuit determined that the
37
instruction was erroneous, but in that case, was harmless:
“failure to give the ‘acquittal’ segment of the accomplice
instruction could not mislead the jury or ‘turn the scale’
against the appellants.” Id. at 48.
We find that Marfo’s reliance on Armocida is misplaced. As
discussed above, even the Armocida court found that the claimed
error in that case was harmless. Moreover, in the case relied
upon in Armocida – Cool v. United States, 409 U.S. 100, 103 n.4
(1972) – the accomplice instruction given by the court was found
to be “incomplete” because the accomplice testimony referred to
was exculpatory of the defendant. See Armocida, 515 F.2d at 48
(“In Cool, the accomplice testimony controlled the outcome of
the trial and was completely exculpatory as to the defendant.”).
Conversely, in Marfo’s trial, there was no exculpatory
accomplice testimony that would have warranted the instruction
discussed in Cool. See also United States v. Henry, 869 F.2d
595, 1989 WL 14355, at *2 (4th Cir. 1989) (table) (unpublished)
(finding that because there was “no [accomplice] evidence which
could be called exculpatory as set forth in Cool. . . . [t]he
accomplice instruction given by the court was under the
particular facts an acceptable expression of applicable law”).
Because there was no exculpatory accomplice testimony in this
case, we find that the district court did not err by not
38
instructing the jury that it could acquit Marfo based upon
accomplice testimony.
B.
Finally, Marfo contends that the district court erred
based on the cumulative effect of all of the alleged errors. As
recounted above, however, no identifiable errors occurred during
Marfo’s trial. Even if we were to assume any errors, we cannot
conclude that the errors prejudiced Marfo’s case so as to
justify the unusual remedy of reversal based on cumulative
error. None of the errors – if assumed – on their own would
have caused “any cognizable harm,” Basham, 561 F.3d at 330, and
the strength of the Government’s evidence leaves little doubt
that the jury would have returned guilty verdicts irrespective
of any identifiable errors.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
39