United States v. Troy Titus , 475 F. App'x 826 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4482
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY AURELIUS TITUS,
Defendant – Appellant,
v.
STEPHANIE OLSEN; RITA MAE CANNIZZARO,
Parties-in-Interest.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:08-cr-00154-RAJ-DEM-1)
Argued: March 22, 2012 Decided: April 13, 2012
Before DUNCAN, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Andrew Michael Sacks, SACKS & SACKS, Norfolk, Virginia,
for Appellant. Michael Calvin Moore, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Virginia;
Melissa E. O'Boyle, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
A jury convicted Troy Titus of mail fraud, wire fraud,
conspiracy to commit mail and wire fraud, and various other
offenses arising from an operation that bore the hallmarks of a
Ponzi scheme. On appeal, Titus raises numerous claims,
challenging pretrial, trial, and posttrial rulings by the
district court. Finding no error, we affirm.
I.
A.
Because Titus was convicted by a jury, the following facts
are recited in the light most favorable to the government. See
United States v. Cabrera-Beltran, 660 F.3d 742, 746 (4th Cir.
2011). Prior to the revocation of his law license in 2005,
Titus ran his own law firm in the Tidewater Region of Virginia.
Co-conspirator and co-defendant Kristen Cardwell worked with
him.
In his capacity as an attorney, Titus assumed various
roles. These roles included serving as trustee for the trust
accounts of many clients, a responsibility that allowed him
access to the funds in those accounts. He also acted as a real
estate settlement agent, handling funds from one or more sides
of real estate transactions. In furtherance of this role,
3
Titus’s law firm maintained a trust account for real estate
settlement activities with Monarch Bank (the “Monarch account”).
In addition to his activities as an attorney, Titus led
seminars on real estate investment, estate planning, and tax
avoidance. Titus solicited seminar attendees to become clients
of his law firm and invest funds with him in ventures that often
involved the purchase of real estate. Titus assured these
individuals that their investments would be secured by first or
second liens on other real property.
In his various roles, Titus was subject to certain
statutes, regulations, and professional rules. For example,
Titus’s trustee relationship with his clients was governed by,
inter alia, the Virginia State Bar’s Rules of Professional
Conduct. As relevant here, the Rules impose a duty on an
attorney to avoid representation of “a client if the
representation involves a concurrent conflict of interest”
unless the client “consents after consultation, and . . . the
lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected
client.” Va. Rules of Prof’l Conduct R. 1.7. The Rules go on
to prohibit certain transactions by an attorney that run
particular risks of conflicts of interest:
(a) A lawyer shall not enter into a business
transaction with a client or knowingly acquire an
4
ownership, possessory, security or other pecuniary
interest adverse to a client unless:
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to the
client and are fully disclosed and transmitted in
writing to the client in a manner which can be
reasonably understood by the client;
(2) the client is given a reasonable opportunity
to seek the advice of independent counsel in the
transaction; and
(3) the client consents in writing thereto.
(b) A lawyer shall not use information relating to
representation of a client for the advantage of the
lawyer or of a third person or to the disadvantage of
the client unless the client consents after
consultation.
Id. at R. 1.8. In addition, Virginia law imposes a duty of
loyalty on all trustees, requiring each trustee to “administer
the trust solely in the interests of the beneficiary.” Va. Code
Ann. § 55-548.02(A).
Titus’s activity as a real estate settlement agent was
governed by the Virginia Consumer Real Estate Settlement
Protection Act (“CRESPA”), codified in sections 55-525.16-525.32
of the Virginia Code, which sets forth the duties and
responsibilities of real estate settlement agents. CRESPA
requires real estate settlement agents to hold settlement funds
in “fiduciary trust . . . accounts,” and to keep the funds
“segregated for each depository . . . in the records of the
settlement agent in a manner that permits the funds to be
5
identified on an individual basis.” Va. Code. Ann. § 55-
525.24(A)(1). CRESPA also requires that “[t]he funds . . . be
applied only in accordance with the terms of the individual
instructions or agreements under which the funds were accepted .
. . [and] disbursed only pursuant to a written instruction or
agreement specifying how and to whom such funds may be
disbursed.” Id. at §§ 55-525.24(A)(2), (B). In addition,
CRESPA prohibits the intentional making of “any materially false
or misleading statement or entry on a settlement statement.”
Id. at § 55-525.25.
B.
By the early 2000s, Titus was experiencing serious
financial difficulties. In addition to significant expenses
associated with the operation of his law firm, Titus was saddled
with additional expenses totaling around $65,000 per month.
Titus had also amassed a running shortfall in the Monarch
account of approximately $2.5 million. To overcome these
financial difficulties Titus began defrauding his legal clients
and real estate investors.
Titus fraudulently obtained funds via three avenues: by
embezzling funds from his clients’ trust accounts, by misusing
6
property entrusted to him by his clients, 1 and by
misappropriating funds from his real estate investors. Titus
began by using the funds to cover his monthly expenses and
backfill his shortfall in the Monarch account. Later, in
classic Ponzi scheme fashion, Titus began using more recently
acquired funds to make payments to earlier victims.
By 2005, Titus’s scheme was unraveling. Multiple clients’
accounts were running shortfalls, and Titus owed massive amounts
to his real estate investors. Complaints by his legal clients
led to an investigation by the Virginia State Bar. This
investigation ended with Titus stipulating to his mismanagement
of trust accounts and agreeing to surrender his law license.
The FBI began investigating his activities, which led to the
underlying criminal action.
C.
A federal grand jury indicted Titus for bank fraud, in
violation of 18 U.S.C. § 1344 (Count One); conspiracy to commit
mail and wire fraud, in violation of 18 U.S.C. § 1349 (Count
Two); wire fraud, in violation of 18 U.S.C. § 1343 (Counts Three
though Twenty-Six); mail fraud, in violation of 18 U.S.C. § 1341(Counts Twenty Seven though Thirty-One); promotional money
1
For example, on multiple occasions Titus used his clients’
property to secure loans from his investors.
7
laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Counts
Thirty-Two though Forty-One); and engaging in financial
transactions with criminally derived property, in violation of
18 U.S.C. § 1957 (Counts Forty-Two though Forty-Nine). Titus’s
trial lasted approximately six weeks and included testimony from
over 60 witnesses. These witnesses included victims, clients,
investors, record custodians, bank employees, law enforcement,
Titus’s co-conspirator, and Titus himself. A jury convicted
Titus on the conspiracy count, 16 of the wire fraud counts, two
of the mail fraud counts, four of the money laundering counts,
and seven of the financial transactions with criminally derived
property counts. The district court sentenced Titus to 30 years
in prison. This appeal followed.
We set forth additional facts below as necessary.
II.
On appeal, Titus claims multiple errors by the district
court. Titus first argues that the district court erred by
denying his pretrial motion for a continuance. Titus next
argues that the district court erred in admitting certain
evidence during his trial. Titus also asserts that the district
court violated his right to a fair trial by showing bias against
his defense counsel. Titus further claims that the district
court erred in limiting his testimony to just over two full days
8
of trial. Finally, Titus argues that the district court erred
in denying his posttrial motion for acquittal. We address each
of these claims in turn.
A.
We first consider whether the district court erred in
denying Titus’s pretrial motion for a continuance. Our standard
of review in this regard is a deferential one. “[A] trial
court’s denial of a continuance is . . . reviewed for abuse of
discretion; even if such an abuse is found, the defendant must
show that the error specifically prejudiced her case in order to
prevail.” United States v. Hedgepeth, 418 F.3d 411, 419 (4th
Cir. 2005). “[B]road discretion must be granted trial courts on
matters of continuances; only an unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay violates the right to the assistance of
counsel.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quotation
marks omitted).
Against the foregoing standard, we consider the facts. The
district court appointed a federal public defender to represent
Titus following his initial indictment and set the original
trial date for June 29, 2009. After the grand jury handed down
a third superseding indictment, Titus moved for, and the
district court granted, a continuance until October 6, 2009.
9
On August 10, 2009, Titus moved to replace the federal
public defender with private counsel. The government initially
opposed the motion, expressing concern with bringing in new
counsel less than 60 days before trial. Although eventually
withdrawing its opposition, at an August 17, 2009, hearing on
the motion the government emphasized that it “continue[d] to
believe that there’s absolutely no way that new counsel coming
into this case could be prepared to try it in less than 60
days.” S.J.A. 87. The government voiced concern that were the
substitution allowed and the October 6 trial date maintained,
one of two things is going to happen: Either A, Mr.
Sacks is going to come in on the eve of trial after we
have put all these arrangements in place and made all
these arrangements for the witnesses to be here, and
he’s going to say I just realized that I don’t have
enough time despite my representation before that I
did; or alternatively, we are going to be back here in
a few years on 2255 because he had insufficient time
to get ready.
Id. at 89. In response, Titus’s private counsel assured the
district court that “if the Court ordered that this trial go
forward on October 6th, then I will be ready. I will do what I
have to do to be ready.” Id. at 91. The district court
continued the case despite counsel’s representations, stating:
[R]ecognizing that we are at a stage here where we are
less than 60 days out from this trial, the Court
doesn’t want to come back in here and be confronted
with a continuance in this case after everyone is
keyed up to go and et cetera. So what the Court is
going to do is the Court is going to on its own
volition move this case out, move it out approximately
10
30 days, to be sure that we can deal with what we have
to deal with here and we won’t have to come back in
here because of adjustments having to be made because
of a time schedule.
Id. at 95-96. The district court granted Titus’s motion to
substitute counsel and sua sponte set November 10, 2009, as the
new date for trial.
More than two months after the hearing and approximately
two weeks before the November 10 trial date, Titus’s counsel
filed a motion to continue. Counsel argued that he could not be
prepared to try such a complex case without additional time. In
opposing the motion, the government noted that it had made
“extensive travel arrangements . . . to organize more than 70
government witnesses, many of whom are elderly and some of whom
must travel from abroad for this hearing” and that it had relied
“on Defense Counsel’s representations that he would be ready,
[and] scheduled . . . other trials based around this trial date,
making it extremely difficult to find a date even into 2010 that
would allow for a month-long trial.” J.A. 260-61.
The district court denied the motion by memorandum opinion:
The Court in good part allowed Defense Counsel to come
into the case at such a late date because of his
affirmations that he would be ready even at the
October 6, 2009 trial date if necessary. Defense
Counsel represented at the continuance hearing that “I
am more prepared, frankly, in two months than the
public defenders were in ten.” The Court will rely on
Defense Counsel’s representations of diligence in
preparation, given his experience and skill in trying
cases and the resources he has had available to him
11
over the past several months. The Court is confident
that Defense Counsel will provide the Defendant
effective representation, and finds that on balance,
no prejudice will result.
Id. at 265 (quoting J.A. 244).
Titus argues that, despite counsel’s insistence at the
August 17, 2009, hearing that he would be ready for trial on
October 6--more than a month earlier than the ultimate trial
date--once his counsel “delved into the case, which was document
intensive and complicated by the fact that [Titus] was in
custody pending trial, it became apparent . . . that [counsel]
had underestimated the time he would need to adequately prepare
a defense with the defendant.” Appellant’s Br. 13. Titus
argues that the district court abused its discretion in allowing
his counsel only 12 weeks to prepare for a 20-day jury trial on
49 counts.
Notable, however, is what Titus does not argue. Titus does
not allege that the government was dilatory in providing
discovery or in any other way contributed to a lack of
preparation. 2 Titus points to nothing specific in the trial
record to demonstrate any prejudice caused by his counsel’s
supposed lack of preparation. And importantly, Titus does not
2
To the contrary, as noted by the district court, the
government went to great lengths to aid counsel’s preparation.
See J.A. 262-63.
12
argue that the district court was either “arbitrary” or
“unreasoning” in denying the continuance, as is required to find
an abuse of discretion in this circumstance. See Slappy, 461
U.S. at 11-12. Accordingly, Titus’s argument must fail.
In an excess of caution we note as well that had Titus made
the appropriate arguments, his contention would still be
unavailing. We have held that “the burdensome task of
assembling a trial counsels against continuances, and,
therefore, the trial courts must be granted broad discretion.”
United States v. LaRouche, 896 F.2d 815, 823 (4th Cir. 1990).
Here, the district court, both at the hearing at which it
approved the substitution of counsel and provided for a
continuance on its own motion and later in denying the
subsequent continuance, appropriately balanced the interests of
the defendant with the need to manage its docket, accommodate
the schedule of counsel, and accommodate witnesses who would be
traveling in from out of town. Thus, the district court was
neither arbitrary nor unreasoning. Indeed, the 12 weeks
provided to Titus’s counsel is much more generous than that
provided in similarly complex cases where we have found no abuse
of discretion. See, e.g., LaRouche, 896 F.2d at 823-24 (finding
no abuse of discretion in providing 34 days to prepare for
complex, multidefendant trial); United States v. Badwan, 624
F.2d 1228, 1230-31 (4th Cir. 1980) (similar, providing three
13
weeks to prepare for trial). For these reasons, we find no
abuse of discretion here.
B.
We now turn to Titus’s evidentiary arguments, beginning
with Titus’s challenge to the admission of his stipulation to
revocation of his law license. We then turn to his challenge to
the district court’s taking judicial notice of certain Virginia
rules and statutes. Both challenges are governed by Federal
Rule of Evidence 403, 3 which allows a district court to “exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, [or] confusing the issues.” We have characterized
this prejudice as “tend[ing] to subordinate reason to emotion in
the factfinding process.” United States v. Queen, 132 F.3d 991,
3
Titus frames his challenge to the admission of the
stipulation to revocation of his bar license as arising from
Federal Rule of Evidence 404(b), which prohibits the
introduction of evidence of past bad acts by a person “to prove
a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). Such prior bad act evidence is
allowed, however, to prove, among other things, “motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. at 404(b)(2).
Titus does not argue that the district court admitted the
stipulation for an improper purpose, but instead argues that the
potential for prejudice outweighed the probative value
associated with that purpose. Thus, Titus’s challenge is more
properly considered to be arising from Rule 403, rather than
404(b).
14
997 (4th Cir. 1997). In reviewing a district court’s balancing
of probative value against potential for prejudice, we have a
history of “broad deference” to the district court. See, e.g.,
United States v. Myers, 280 F.3d 407, 413 (4th Cir. 2002) (“We
must review the lower court’s application of this balancing test
with . . . broad deference.”); United States v. Love, 134 F.3d
595, 603 (4th Cir. 1998) (“We . . . review a district court’s
admission of evidence over a Rule 403 objection under a ‘broadly
deferential standard.’ ” (quoting United States v. Simpson, 910
F.2d 154, 157 (4th Cir. 1990))). We will overturn a district
court’s decision to admit evidence in such circumstances only
“under the most extraordinary of circumstances.” United States
v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (quotation marks
omitted).
1.
We first review the admission of Titus’s stipulation to the
revocation of his law license. As noted above, the primary
motive offered by the government to explain Titus’s misdeeds was
his serious financial straits. Titus had shortfalls in many
accounts over which he had control. The largest of these
shortfalls--approximately $2.5 million--was in the Monarch
account, his law firm’s real estate settlement account. Part of
the government’s theory was that Titus used investor and client
funds to try to pay down that deficit.
15
Most of the allegations to which Titus stipulated involved
irregularities and deficiencies in the accounts over which Titus
had control. For example, paragraphs 14-19 of the stipulation
deal specifically with shortfalls in the Monarch Account. In
addition, the stipulation contains descriptions of unsavory
conduct on Titus’s part. For example, it describes instances of
Titus assuring Virginia Bar officials that he had taken some
action when, in fact, he had not.
Titus objected to admission of the stipulation, arguing
that although the parts detailing account shortfalls were
acceptable, the district court should redact portions describing
his bookkeeping problems and false statements because they would
prejudice the jury. The government responded that the parts of
the stipulation with which Titus took issue were essential to
prove that Titus knew about the shortfalls in the Monarch
account, and, more broadly, to document his overall financial
difficulties. After hearing argument from both sides, the
district court considered the document during a recess and
ultimately approved its admission. The district court concluded
that the significant probative value of the stipulation
outweighed the minimal risk of prejudice, especially given that
it tended to show confusion on Titus’s part, which supported his
claim that he did not have the specific intent to commit fraud:
16
When you read these paragraphs [of the stipulation],
these paragraphs in some way tend to affirm what the
defendant has been saying about the reason he did what
he did, that he had some confusion with the trust
accounts in his firm, that he was trying to get it
straightened out. A lot of these paragraphs are
dealing with the efforts of, trying to straighten out
the defendant’s records, which some might argue or
suggest that that shows the lack of fraudulent intent,
that he was just having problems with his records,
which the defendant has argued. So the Court believes
on balance that it’s appropriate to admit.
J.A. 1435.
Titus argues on appeal, as he did at trial, that the
prejudicial impact of the stipulation outweighed its probative
value, and therefore it should not have been admitted. As Titus
puts it:
The risk for prejudice and misleading of the jury in
providing the . . . stipulation was simply too great,
and the district court abused its discretion in
admitting the materials into evidence and created a
substantial risk that the defendant would be convicted
based on an uncharged ethical violation during a
Virginia State Bar investigation.
Appellant’s Br. 18. We disagree. As noted above, a district
court’s decision to admit evidence in such circumstance will be
overturned only under the most extraordinary of circumstances.
Aramony, 88 F.3d at 1377. No such circumstances are present
here. On the contrary, it is clear that the district court
thoughtfully balanced the probative value of the stipulation
against its potential for prejudice, and we will not second-
guess that balancing. Accordingly, we reject Titus’s challenge
17
to the admission of the stipulation to revocation of his law
license.
2.
We next consider Titus’s challenge to the admission by
judicial notice of certain Virginia rules and statutes. Central
to the government’s theory of the case was that Titus committed
fraud, in part, by failing to fulfill his duties of disclosure
to his clients and investors. To demonstrate the duties that
Titus owed to his clients and investors, the government asked
the district court to take judicial notice of the Virginia Rules
of Professional Responsibility 1.7 and 1.8 (quoted above), which
created duties to his clients, and CRESPA (quoted above) with
its associated state regulations, which imposed duties on Titus
when he acted as a settlement agent for real estate closings and
held funds in trust for those closings. Titus objected, arguing
that the statutes were not probative and would confuse the jury:
[T]he danger that is created is that the jury would
convict him of a crime because they think he violated
a regulatory, a State Bar standard. That would be
highly prejudicial. That’s not the law. That’s
simply not the source of criminal liability. It’s
prejudicial. . . . How are they going to understand?
J.A. 787. The district court overruled Titus’s objection,
stating:
[T]he Court is fully capable of advising this jury of
what criminal statutes this defendant is indicted on,
and one of the common instructions is to instruct the
jury that the defendant is not on trial for any matter
18
not charged in this indictment. He’s not on trial for
conflict of interest or misusing escrow funds or any
regulatory violation. That is not a problem for the
jury to understand this. But these regulatory matters
are certainly circumstantially useful and probative in
establishing whether the defendant acted with intent
to establish an artifice to defraud.
J.A. 788. In fact, in instructing the jury at the close of
evidence, the district court explicitly addressed this issue.
After providing the text of the documents, the district court
instructed the jury: “During your deliberations you may consider
these statutes and rules in determining whether the defendant
violated certain duties as part of the scheme and artifice to
defraud. However, the court cautions you that the defendant is
not on trial for violating these statutes.” J.A. 2924.
Titus advances on appeal the same argument made in the
district court. Titus asserts that the statutes and rules were
“irrelevant to the conduct charged in the Indictment” and were
prejudicial because there was a high risk that they would
confuse the jury and that the jury would convict him based on
violations of state law, rather than the crimes for which he was
charged. Appellant’s Br. 21. The government disagrees,
contending that “Titus’s conduct made the Virginia Rules of
Professional Conduct and the Virginia Code sections governing
real estate settlements highly relevant,” Appellee’s Br. 53, as
the indictment included theories of criminal liability covering
“unlawful conversion of funds held in trust and various breaches
19
of fiduciary duties to clients that caused economic loss,” to
which the statutes and rules were directly related, id. at 54.
The government further argues that the above-noted jury
instruction cured any potential jury confusion.
Reviewing--with broad deference--the district court’s
balancing of the probative value of the rules and statutes
against their potential to confuse the jury, we find no abuse of
discretion. First, it is clear that the rules and statutes were
highly relevant to the government’s case. To prove a mail or
wire fraud violation, the government must generally establish:
(1) the existence of a scheme to defraud; (2) the use of the
mails or wires in furtherance of the scheme; (3) a material
statement or omission in furtherance of the scheme; and (4)
specific intent to defraud. 18 U.S.C. §§ 1341, 1343; United
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). A scheme
or artifice to defraud, in turn, may arise from a failure to
disclose material information pursuant to a fiduciary,
statutory, or other legal duty. United States v. Colton, 231
F.3d 890, 898 (4th Cir. 2000). These rules and statutes
evidence Titus’s duties to disclose information and are,
accordingly, vital to prove, as the government was seeking to
do, mail and wire fraud charges based upon a failure to disclose
such information in violation of these duties.
20
Second, the risk of jury confusion does not substantially
outweigh the probative value of this evidence. Any risk that
the jury could become confused and render a guilty verdict on
the basis of a violation of these state rules and statutes,
rather than on the basis of the federal law upon which Titus was
indicted, was cured by the district court’s cautionary
instruction, which we must presume the jury understood and
followed. See United States v. Udeozor, 515 F.3d 260, 271 (4th
Cir. 2008). 4 Accordingly, it was not an abuse of discretion to
take judicial notice of the rules and statutes.
C.
We next consider Titus’s argument that the district court
violated his right to a fair trial by showing bias against his
defense counsel. We review a district court’s trial management
under a broadly deferential standard. See, e.g., United States
v. Smith, 452 F.3d 323, 332 (4th Cir. 2006) (holding that
questions of trial management are “quintessentially the province
of the district courts”); United States v. Godwin, 272 F.3d at
4
Titus’s claim that the district court’s admission of the
rules and statutes constructively amended the indictment fails
for the same reason. See Udeozor, 515 F.3d at 271; see also
United States v. Alhalabi, 443 F.3d 605, 614 (7th Cir. 2006)
(“The admission of evidence . . . intricately related to the
crimes charged to paint for the jury the complete picture of the
scheme . . . did not alter the crimes from the ones described in
the indictment.”).
21
659, 679 (4th Cir. 2001) (holding that the district court has
broad discretion regarding the interrogation of witnesses and
has the duty to admonish counsel as part of sound trial
management).
Titus claims that the district court manifested its bias
against him by excessively intervening in his defense and making
adverse comments toward his counsel. He cites examples of the
district court acting in the absence of objection from the
government in foreclosing various lines of questioning by his
counsel because of concerns regarding admissibility. Citing
these interventions, Titus moved for a mistrial, which the
district court denied. Titus also complains of sounds emanating
from the jury, which he claims were “a by-product of the
cumulative interventions and comments made by the trial court
toward, during, and regarding the defendant’s defense.”
Appellant’s Br. 37. Notably, Titus does not claim that the
district court substantively erred in any of its sua sponte
rulings.
Although a district court “must not create an appearance of
partiality by continued intervention on the side of one of the
parties or undermine the effective functioning of counsel
through repeated interruption of the examination of witnesses,”
the district court “must exercise reasonable control over . . .
the presentation of evidence in order to ensure the effective
22
determination of the truth [and] to avoid needless waste of time
in the presentation of a case.” United States v. Castner, 50
F.3d 1267, 1272 (4th Cir. 1995) (quotation marks and alterations
omitted). “ ‘A judge’s ordinary efforts at courtroom
administration--even a stern and short-tempered judge’s ordinary
efforts at courtroom administration--remain immune’ and do not
establish bias or partiality.” Id. at 1274 (quoting Liteky v.
United States, 510 U.S. 540, 556 (1994)).
Titus points solely to evidentiary rulings, which he does
not claim were incorrect, to establish bias. But a district
court is required, even in the absence of objection, to
“exercise reasonable control over the mode . . . of examining
witnesses and presenting evidence so as to: (1) make those
procedures effective for determining the truth; [and] (2) avoid
wasting time.” Fed. R. Evid. 611(a). We cannot accept a
suggestion that the district court erred by following the
Federal Rules of Evidence. Cf. Castner, 50 F.3d at 1272 (“We
find no error in [the district court questioning the relevancy
of an exhibit], as the court was fulfilling its duty to ensure
that the proffered exhibits were relevant before admitting them
into evidence, as required by Fed. R. Evid. 402.”); id. at 1272-
73 (holding that it was not error for “the district court [to]
attempt[] to maintain control over the presentation of evidence
in order to help present a clearer set of facts to the jury, as
23
required by Rules 611(a) and 614(b) of the Federal Rules of
Evidence”). We therefore find no error in the district court’s
conduct.
D.
We next consider whether the district court erred in
restricting Titus’s testimony to slightly more than two full
days. The government’s presentation of evidence spanned the
first 12 days of trial. Titus took the stand in his own defense
on day 13. At the end of day 13, the district court asked
Titus’s counsel how long direct testimony would last. Counsel
replied that it would take “all day tomorrow [day 14] and maybe
somewhat on Friday [day 15].” J.A. 3271. The district court
then informed Titus’s counsel that he would be required to
finish his direct examination of Titus by the end of day 14.
After some back and forth, the district court suggested that it
might allow Titus to testify into day 15. Then, during a
discussion on day 14 on the progress of Titus’s testimony, the
district court gave Titus’s counsel a hard deadline to conclude
Titus’s testimony of 10:45 a.m. (with a start time of 9:30 a.m.)
on day 15. Titus concluded his testimony at 11:00 a.m. on day
15. In total, Titus testified for just less than two-and-one-
half days of trial--the exact amount of time counsel initially
estimated he would need.
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Titus argues that, in light of the amount of evidence put
on by the government and the complexity of the case, “the amount
of time allowed [for him] to testify was grossly inadequate . .
. and it was an abuse of . . . discretion to impose such time
restrictions.” Appellant’s Br. 46. We disagree.
As noted above, Federal Rule of Evidence 611 instructs the
district court to “exercise reasonable control over the mode . .
. of examining witnesses and presenting evidence so as to: (1)
make those procedures effective for determining the truth; [and]
(2) avoid wasting time.” Fed. R. Evid. 611(a). So long as the
district court gives counsel a full and fair opportunity to
reach all material points, it is not an abuse of discretion to
limit the length of testimony. See United States v. Midgett,
488 F.3d 288, 300 (4th Cir. 2007) (limits on testimony found not
to be an abuse of discretion when, inter alia, defendant did
“not contend that the limits placed on his lawyer’s questioning
of witnesses denied him the opportunity to elicit or attack
evidence”); see also United States v. Carter, 410 F.3d 942, 951
(7th Cir. 2005) (“Simply stated, a criminal defendant does not
have an absolute, unrestrainable right to spew irrelevant--and
thus inadmissible--testimony from the witness stand.”).
Although we remain cognizant of the importance of allowing a
criminal defendant to testify fully on his own behalf, Titus
points to no piece of evidence that he was unable to put before
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the jury because of the district court’s minimal, at best, limit
on his testimony. Accordingly, he cannot show that the
limitation was an abuse of discretion.
E.
We finally consider Titus’s challenges to the sufficiency
of the evidence supporting his convictions. Titus claims the
district court erred in denying his Rule 29 motion for
acquittal. Denial of a Rule 29 motion will be affirmed on
appeal if, “viewing the evidence in the light most favorable to
the government, any rational trier of facts could have found the
defendant guilty beyond a reasonable doubt.” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). In assessing the
denial of a Rule 29 motion, this court considers “circumstantial
as well as direct evidence, and allow[s] the government the
benefit of all reasonable inferences from the facts proven to
those sought to be established.” Id. “In reviewing the
sufficiency of the evidence, we are not entitled to weigh the
evidence or to assess the credibility of witnesses, but must
assume that the jury resolved all contradictions . . . in favor
of the government.” United States v. Romer, 148 F.3d 359, 364
(4th Cir. 1998) (quotation marks omitted).
Titus challenges the sufficiency of the evidence put forth
by the government to prove (1) specific intent to defraud for
the mail and wire fraud counts, (2) the presence of a
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conspiracy, and (3) that the money laundering transactions were
conducted with mail/wire fraud proceeds. Titus’s sufficiency
challenge encompasses over 20 convictions but spans only five
pages of his brief. With one exception--Cardwell’s testimony as
to her role in the conspiracy--Titus points to no specific
deficiencies in the government’s evidence, relying instead on
conclusory statements asserting insufficiency. Accordingly, we
reject Titus’s sufficiency challenges in all respects.
1.
We turn first to the evidence of Titus’s specific intent to
defraud. “[S]pecific intent to defraud . . . ‘may be inferred
from the totality of the circumstances and need not be proven by
direct evidence.’ ” Godwin, 272 F.3d at 666 (quoting United
States v. Ham, 998 F.2d 1247, 1254 (4th Cir. 1993)).
As to specific intent, the government has clearly met its
burden, and the district court was correct to deny Titus’s Rule
29 motion on this issue. Titus’s challenge to the sufficiency
of the evidence showing specific intent to defraud consists
entirely of offering another interpretation of his behavior:
The evidence at trial, one by one, was that each
lender and/or investor entered into an agreement with
the defendant, and each lender and/or investor had a
certain expectations [sic] of a particular result.
There was rarely, if ever, a prior agreement or
written instructions. Subsequently, a resulting
dispute about the interpretation of an agreement,
often oral, or joint venture arose. These
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disagreements and/or alleged breaches of contract are
civil. . . .
The fact that the defendant owes money to a number of
people does not make his actions criminal. These
people have legitimate and arguable claims that they
invested money and did not get it back. There is a
breach of promise, not a scheme to defraud or intent
to defraud--the evidence was devoid of either.
Appellant’s Br. 27-28. Even assuming that this interpretation
is plausible, it does not aid Titus if the government’s
interpretation is also plausible. It is the province of the
jury to decide among competing interpretations of the facts
presented.
There is indisputably support for the government’s
interpretation of facts, i.e., that they demonstrate Titus had
specific intent to defraud his victims. The government
presented a mountain of evidence in this regard, to which Titus
makes no specific challenge. For example, the government
presented sufficient evidence from which the jury could conclude
that Titus was attempting to conceal his actions from his
clients and investors, and thus infer from this an intent to
defraud. See United States v. Ellis, 326 F.3d 550, 554 (4th
Cir. 2003) (holding that attempts to conceal evidence showed
specific intent to defraud). A small sampling of the evidence
bears this out. The jury received evidence that Titus made out
a check from a client’s trust account to a real estate company
and noted on the check, “First Mortgage,” but did not use the
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check to buy real estate for the trust, instead depositing it in
a real estate trust account and using the funds to pay firm
expenses. When confronted by a colleague, Titus falsely stated
that he was buying real estate for the trust. The jury also
heard evidence that Titus presented a form for a client to sign
that would transfer ownership of certain property from the
client to Titus. Contrary to custom, Titus did not include a
description of the property with the form. Titus later attached
to the form a description describing property different from
what Titus had led the client to believe he was transferring.
The government also introduced copious amounts of evidence that
Titus engaged in “lulling” activity, which also evidences a
specific intent to defraud. See United States v. Kelley, 551
F.3d 171, 172 (2d Cir. 2009). These examples alone are
sufficient to support a jury finding of specific intent to
defraud.
2.
Titus also challenges the sufficiency of the evidence
presented by the government to prove that Titus engaged in a
conspiracy with Cardwell to commit mail and wire fraud. Titus
claims that the evidence only supported a conspiracy between
Cardwell and Titus to “ma[ke] certain representations in certain
documents/loan applications,” but not to commit mail or wire
29
fraud. Appellant’s Br. 28. This is a distinction without a
difference.
To prove a conspiracy, the government need not prove that
each coconspirator engaged in each act of the enterprise. On
the contrary, it is well settled that a particular coconspirator
“need not be involved in every phase of [the] conspiracy to be
deemed a participant” in a single, ongoing conspiracy. United
States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988). To prove a
conspiracy, the government need only show an overlap of key
actors, methods, and goals, indicating one overall agreement or
one general business venture. See, e.g., United States v.
Smith, 451 F.3d 209, 218 (4th Cir. 2006); United States v.
Pratt, 351 F.3d 131, 140 (4th Cir. 2003).
Here, the jury could reasonably conclude that Titus and
Cardwell were working together in one general business venture
that depended on mail and wire fraud for its success. Cardwell
testified that she helped Titus conduct straw purchases of
property to obtain money from mortgage lenders. These funds
were then used, in part, to make lulling payments to his other
victims. Evidence also showed that Cardwell assisted Titus in
defrauding Mary Honning by use of the wires. This evidence is
sufficient for a reasonable jury to conclude that Titus and
Cardwell had agreed to participate in a scheme to defraud
furthered by the use of the mail and wires.
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3.
Titus’s final sufficiency challenge involves his
convictions for money laundering. This challenge, however,
relies completely on the earlier challenge to sufficiency of the
evidence demonstrating Titus’s specific intent to defraud in the
mail and wire fraud counts. Because that earlier challenge
failed, this challenge must necessarily also fail.
III.
For the foregoing reasons, we affirm the district court in
all respects.
AFFIRMED
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