United States v. Caleb Deason , 622 F. App'x 350 ( 2015 )


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  •      Case: 14-10461      Document: 00513157744         Page: 1    Date Filed: 08/17/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-10461                       United States Court of Appeals
    Fifth Circuit
    FILED
    UNITED STATES OF AMERICA,                                                  August 7, 2015
    Lyle W. Cayce
    Plaintiff - Appellee                                              Clerk
    v.
    CALEB DEASON,
    Defendant - Appellant
    Appeals from the United States District Court
    for the Northern District of Texas
    USDC No. 4:13-CR-158
    Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    A jury convicted Defendant-Appellant Caleb Deason of: (1) one count of
    wire fraud in violation of 18 U.S.C. § 1343 and (2) one count of money
    laundering in violation of 18 U.S.C. § 1957. 1 On appeal, Deason challenges his
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    1Although § 1957 defines the offense as “[e]ngaging in monetary transactions in
    property derived from specified unlawful activity,” it is often referred to as “money
    laundering,” see United States v. Fuchs, 
    467 F.3d 889
    , 906-07 (5th Cir. 2006), and we will
    employ the same shorthand.
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    conviction, his sentence, and the court’s restitution order, each of which we
    affirm.
    I. Facts & Proceedings
    Deason worked as a financial planner and independent insurance agent
    in Fort Worth, Texas. One of his clients was Daniel Secker. With Deason’s
    assistance, Mr. Secker purchased a new life insurance policy issued by
    Transamerica Life Insurance Company (“Transamerica”), which took effect in
    December 2011. The Transamerica policy was intended to replace Mr. Secker’s
    other life insurance policy which was issued by ING. Shortly thereafter, Mr.
    Secker died. At the time of his death, both of those policies were still in effect.
    Deason contacted Transamerica and told them that he would handle the claim
    of the beneficiary, Mr. Secker’s widow, because he (Deason) was close to the
    Secker family.
    After a series of exchanges over several weeks with the widow and her
    sister-in-law, who had been acting as a go-between, and with his Transamerica
    contact, Deason eventually sent a wire transfer form to Transamerica that he
    had created listing Mrs. Secker as the payee but also listing his Wells Fargo
    account number. He received an email saying that the claim had “been
    processed and submitted for approval,” and that the “wire payment should be
    in the beneficiary’s account by the end of the week.” The next week, he realized
    that $1,004,028.41 had been deposited into his own Wells Fargo account.
    Three days after the money was deposited in his account, Deason texted Mrs.
    Secker’s sister-in-law and explained that Transamerica was still investigating
    the claim because Mr. Secker had died during the policy’s contestability
    period. 2 Deason then transferred the policy’s proceeds that he had received to
    2  Ten days later, Deason sent another email expressing similar hesitations about the
    possibility of payment to Mrs. Secker’s sister-in-law.
    2
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    his savings accounts in three separate amounts. A week or so later, he
    withdrew approximately $67,133.00 from one of his savings accounts and used
    these funds to obtain a cashier’s check, with which he purchased a used Land
    Rover. He then opened two new accounts with Wells Fargo and deposited the
    balance   remaining    from   the   Transamerica     proceeds   (approximately
    $933,000.00) into the newly-created accounts.
    In September 2013, a grand jury charged Deason with the above-said
    counts, one for wire fraud and the other for engaging in monetary transactions
    in property derived from specified unlawful activity. During the trial, Deason
    filed a motion for a judgment of acquittal at the close of the government’s case
    and renewed his motion post-verdict, claiming in both that the evidence was
    insufficient to support his conviction. The trial court denied both motions.
    After a two-day trial, the jury returned guilty verdicts on each count.
    The presentence report (“PSR”) recommended that the court increase
    Deason’s offense level by two levels pursuant to U.S.S.G. § 3C1.1 for
    obstruction of justice because his sworn testimony was inconsistent with the
    evidence presented by the government. The PSR also suggested that, pursuant
    to U.S.S.G. § 4A1.3(a)(1), an upward departure to his sentence might be
    warranted based on reliable information that his criminal history category of
    I underrepresented his situation, viz., the likelihood that he would commit
    other crimes. Relative to this appeal, Deason challenged the obstruction of
    justice enhancement on the ground that his testimony at trial was truthful,
    but he indicated that he did not intend to present any further evidence
    regarding this objection.
    Deason filed written objections, which he renewed during the sentencing
    hearing. The trial court overruled his obstruction of justice objection,
    explaining that it had reviewed the trial transcript and concluded that Deason
    gave several false answers during the trial which were designed to mislead the
    3
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    jury. The court adopted the factual findings of the PSR, as modified or
    supplemented by an addendum, and concluded that Deason’s total offense level
    was 28. Combined with his criminal history category of I, the guideline
    imprisonment range was 78 to 97 months. After providing Deason and his
    counsel an opportunity to speak on his behalf, the court imposed an above-
    guidelines sentence of 120 months and ordered Deason to make restitution to
    Transamerica in the amount of $99,491.75.
    II. Analysis
    In his “kitchen sink” appeal, Deason presents roughly a dozen challenges
    to his conviction, sentence, and restitution order. We first consider the issues
    he preserved, then address the contentions that he raises for the first time on
    appeal.
    A.     Preserved issues
    1.     Count One (wire fraud): insufficient evidence
    Deason claims that the evidence adduced at trial was insufficient to
    support his conviction for the conduct charged in Count One because: (1) Count
    One charges a wire from a bank in Iowa, and (2) there is insufficient evidence
    to support the interstate-commerce nexus. Deason preserved his objection to
    the sufficiency of the evidence by filing motions for a judgment of acquittal, so
    we review that objection de novo. 3 The standard for such a claim is high: “In
    reviewing the sufficiency of the evidence, we view the evidence and the
    inferences drawn therefrom in the light most favorable to the verdict, and we
    determine whether a rational jury could have found the defendant guilty
    beyond a reasonable doubt.” 4
    3United States v. Harris, 
    740 F.3d 956
    , 962 (5th Cir. 2014).
    4 United States v. Brown, 
    553 F.3d 768
    , 780 (5th Cir. 2008) (quoting United States v.
    Mitchell, 
    484 F.3d 762
    , 768 (5th Cir. 2007)) (internal quotation marks omitted).
    4
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    The elements of wire fraud, as set out in 18 U.S.C. § 1343, are: (1) a
    scheme to defraud, (2) the use of wire communications, and (3) a specific intent
    to defraud. 5 Deason’s challenge relates to the second element, the use of wire
    communications. Claiming that Count One of the indictment charges a wire
    from a bank located in Iowa, he contends that the evidence presented at trial
    showed a wire to his Wells Fargo account from a bank located in New York,
    and insists that the evidence is thus insufficient to convict him for the conduct
    charged. Count One charges:
    On or about April 5, 2012, in the Fort Worth Division
    of the Northern District of Texas and elsewhere, the
    defendant, Caleb Deason, . . . caused to be transmitted,
    by means of wire and radio communications in
    interstate commerce . . . a wire transfer of
    approximately $1,004,028.41 from HSBC Bank USA
    on behalf of Transamerica Life Insurance Company,
    located in Cedar Rapids, Iowa, to the defendant’s
    Wells Fargo Bank account, located in the state of
    Texas.
    We are unpersuaded by Deason’s deliberate misreading of this charge. Count
    One does not list the location of HSBC Bank USA as Iowa; rather, it states that
    Transamerica is located in Cedar Rapids, Iowa. 6
    Relying on the same misreading of Count One, Deason contends that,
    because the United States did not adduce evidence that the charged wire was
    transmitted from Iowa into another state, his conviction for wire fraud must
    be reversed for lack of evidence regarding a nexus to interstate commerce. For
    substantially the same reasons expressed in the prior paragraph, we reject
    5   United States v. Benns, 
    740 F.3d 370
    , 375 (5th Cir. 2014).
    6   The jury heard testimony that Transamerica is located in Cedar Rapids, Iowa.
    5
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    Deason’s claim that there is insufficient evidence of the wire’s nexus to
    interstate commerce because Count One charged an “Iowa bank wire.” 7
    2.     Count Two (money laundering): insufficient evidence
    Deason also attacks the sufficiency of the evidence to support his
    conviction for the conduct charged in Count Two, claiming that: (1) a cashier’s
    check is not expressly defined as a “monetary instrument” in § 1956(c)(5) so his
    purchase of the cashier’s check does not support his conviction under § 1957(a);
    (2) there is insufficient evidence to show that he “knew” the property with
    which he purchased the cashier’s check was criminally-derived; and, (3) there
    is no evidentiary support for concluding that his purchase of the cashier’s check
    implicated interstate commerce. Deason preserved his sufficiency of the
    evidence challenge, so we review these claims de novo. 8 To repeat, our review
    is highly deferential to the jury’s verdict. 9
    We consider first Deason’s contention that his purchase of the cashier’s
    check does not constitute a “monetary transaction” under § 1957(a) because a
    cashier’s check is not defined as a “monetary instrument” in 18 U.S.C. §
    1956(c)(5). The statutory language of §§ 1956 and 1957, and our precedent,
    foreclose his theory. First, a “monetary transaction” is defined in § 1957(f)(1)
    as “the deposit, withdrawal, transfer, or exchange, in or affecting interstate or
    foreign commerce, of funds or a monetary instrument . . . by, through, or to a
    financial institution . . ., including any transaction that would be a financial
    transaction under section 1956(c)(4)(B) of this title.” 10                 A “financial
    transaction” is defined under § 1956(c)(4)(B) as a “transaction involving the
    7  To the contrary, the record is replete with evidence concerning the charged wire’s
    nexus to interstate commerce.
    8 
    Harris, 740 F.3d at 962
    .
    9 See 
    id. 10 18
    U.S.C. § 1957(f)(1) (emphasis supplied).
    6
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    use of a financial institution which is engaged in, or the activities of which
    affect, interstate or foreign commerce in any way or degree.” 11
    Deason’s purchase of a cashier’s check constitutes a “monetary
    transaction” for the purpose of § 1957(a) in two ways: (1) It constitutes a
    “transfer, or exchange . . . of funds . . . by, through, and to a financial
    institution,” and (2) it constitutes a “transaction involving the use of a financial
    institution . . . which affect[s] interstate . . . commerce.” 12 We are satisfied that
    his conduct falls within § 1957(a) even though cashier’s checks are not
    expressly included on the list of “monetary instruments” in § 1956(c)(5).
    Deason next claims that the trial record lacks the “necessary direct or
    circumstantial evidence” to support the jury’s conclusion that he knew the
    $67,133.00 he withdrew to purchase the cashier’s check was criminally-
    derived. Although he offers no countervailing evidence, claiming that he is
    “unable to cite record pages from which requisite evidence is absent,” he
    ignores the fact that the jury was free to disregard his testimony as not
    credible. He testified that he assumed that the $1,004,028.41 which appeared
    in his Wells Fargo account was the result of an unrelated large deal that he
    had been working on for some time. But, the jury also heard testimony from a
    Transamerica representative that Deason did not have any commissions in the
    pipeline that would amount to approximately a million dollars, and that his
    total earnings from Transamerica totalled less than $30,000.00 since he had
    enrolled as an independent producer for the company in 2006. “The jury is the
    final arbiter of the weight of the evidence, and of the credibility of witnesses,”
    1118 U.S.C. § 1956(c)(4)(B).
    12See, e.g., United States v. Mejia, Nos. 97-50353, 97-50234, 97-50235, 
    1998 WL 895380
    , at *6 (9th Cir. Dec. 17, 1998) (per curiam) (“The purchase of the cashier’s check did
    have an effect on interstate commerce because the cashier’s check was purchased at a bank
    engaged in interstate commerce.”).
    7
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    so we will not disturb its finding on appeal. 13 The record is replete with
    evidence from which a reasonable jury could conclude that Deason knew that
    the money in question was criminally-derived.
    Finally, Deason claims that the evidence is insufficient to support the
    conclusion that his purchase of the cashier’s check had even a “minimal nexus”
    to interstate commerce. Our precedent, and that of other circuits, forecloses
    his challenge. Like § 1956, the money laundering statute, § 1957 regulates
    conduct that, in the aggregate, has a substantial effect on interstate commerce.
    And, we have held that the link to interstate commerce need only be slight in
    such cases. 14 The evidence adduced at Deason’s trial meets this threshold. The
    jury heard testimony that Deason purchased the cashier’s check from a Wells
    Fargo branch and that Wells Fargo is a bank that is insured by the FDIC with
    branches across the United States. “Proof that a savings institution’s accounts
    are federally insured is certainly sufficient to prove that the transaction
    involved a financial institution the activities of which affect interstate
    commerce under 18 U.S.C. § 1956(c)(4)(B).” 15 The evidence is sufficient to
    support the jury’s conclusion that Deason’s purchase of the cashier’s check had
    at least a “minimal nexus” to interstate commerce.
    13  United States v. Restrepo, 
    994 F.2d 173
    , 182 (5th Cir. 1993). We accept “all
    credibility choices and reasonable inferences made by the trier of fact that tend to support
    the verdict.” United States v. Moreno-Gonzalez, 
    662 F.3d 369
    , 372 (5th Cir. 2011) (quoting
    United States v. Asibor, 
    109 F.3d 1023
    , 1030 (5th Cir. 1997)) (internal quotation mark
    omitted).
    14 See United States v. Meshack, 
    225 F.3d 556
    , 572 (5th Cir. 2000) (citing United States
    v. Westbrook, 
    119 F.3d 1176
    , 1191 (5th Cir. 1997)) (overruled on other grounds by United
    States v. Cotton, 
    535 U.S. 625
    (2002)). Section 1957 requires only that these transactions
    have a “de minimis effect” or “minimal impact” on interstate commerce. See United States v.
    Benjamin, 
    252 F.3d 1
    , 5, 9 (1st Cir. 2001).
    15 United States v. Leslie, 
    103 F.3d 1093
    , 1103 (2d Cir. 1997).
    8
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    3.     U.S.S.G. § 3C1.1 enhancement
    Deason claims that the court erred in applying U.S.S.G. § 3C1.1 to his
    sentence because his trial testimony did not support the application of that
    section’s enhancement.        Deason preserved his objection, so we review the
    court’s interpretation and application of the Sentencing Guidelines de novo and
    its factual findings for clear error. 16
    Section 3C1.1 provides for a two-level increase to a defendant’s offense
    level if he (1) “willfully obstructed or impeded, or attempted to obstruct or
    impede, the administration of justice with respect to the . . . prosecution . . . of
    the instant offense of conviction,” and (2) “the obstructive conduct related to . .
    . the defendant’s offense of conviction and any relevant conduct . . . .” 17 For the
    purpose of this enhancement, a defendant obstructs justice when he perjures
    himself. 18   A witness perjures himself when he gives “[1] false testimony
    concerning [2] a material matter with [3] the willful intent to provide false
    testimony, rather than as a result of confusion, mistake, or faulty memory.” 19
    When a defendant objects to a sentence enhancement that results from his trial
    testimony, the district court “must review the evidence and make independent
    findings necessary to establish a willful impediment to or obstruction of
    justice.” 20 In doing so, however, the court need not expressly find that false
    testimony concerned a material matter when materiality is obvious. 21                     In
    16 United States v. Perez-Solis, 
    709 F.3d 453
    , 469 (5th Cir. 2013) (footnote omitted);
    United States v. Miller, 
    607 F.3d 144
    , 148 (5th Cir. 2010) (“For an obstruction of justice
    enhancement, we likewise review the district court’s factual findings for clear error.”).
    17 U.S.S.G. § 3C1.1.
    18 
    Perez-Solis, 709 F.3d at 469
    (footnote omitted).
    19 
    Id. (alterations in
    original) (quoting United States v. Dunnigan, 
    507 U.S. 87
    , 94
    (1993)) (internal quotation mark omitted).
    20 
    Id. (quoting Dunnigan,
    507 U.S. at 95).
    21 
    Id. at 470.
    9
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    making its factual findings in support of the application of § 3C1.1, the court
    may adopt adequate findings in a PSR. 22
    As noted, Deason filed a written objection to the § 3C1.1 enhancement,
    and he renewed his objection during the sentencing hearing. The district court
    explained why it thought the enhancement was proper:
    I heard the defendant’s testimony, and I didn’t hear
    too much truthfulness come from the stand while the
    defendant was on the stand. If you were to go through
    and take up each answer that was a false answer, you
    would – you would spend a lot of time doing it. [Cites
    examples of false testimony] . . . . I’m not going to take
    the time to go through all of the false answers he gave.
    Every one he gave – and the probation officer has
    correctly indicated in paragraph 19 of the presentence
    report the different place in the record where he gave
    false testimony . . . . In each instance, it was material
    to the issues that were being decided by the jury . . . .
    We agree with the district court’s summation. Apart from Deason’s contention
    that his own juried testimony, in context, does not support the enhancement,
    he offers no evidence to refute the factual findings contained in the PSR which
    laid out the multiple instances in which he perjured himself during trial. We
    therefore affirm the district court’s application of § 3C1.1 to his sentence.
    4.         Substantive reasonableness
    Deason also challenges the above-guidelines sentence imposed by the
    court as substantively unreasonable, claiming that the court: (1) failed
    properly to consider and weigh the § 3553(a) factors, and (2) improperly relied
    on uncharged conduct recounted in the PSR.                  Deason objected to the
    substantive reasonableness of the sentence following its imposition, so we
    review the “substantive reasonableness of the sentence imposed under an
    22   
    Id. 10 Case:
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    abuse-of-discretion standard.” 23 When reviewing an above-guidelines sentence
    for substantive unreasonableness, (1) we consider “the totality of the
    circumstances, including the extent of any variance from the Guidelines
    range,” and (2) we accord deference to the district court’s decision that the
    § 3553(a) factors support the sentence. 24
    On appeal, Deason contends that the trial court erred in failing to
    consider mitigating factors, e.g., the letters of support submitted by his friends
    and family, and that, as his counsel put it, “he’s not really different than most
    of the white-collar fraud defendants . . . across the nation.” To the contrary,
    the district court thoroughly considered the § 3553(a) factors and
    acknowledged the letters of support:
    One of the factors are the nature and circumstances of
    the offense.        And, of course, the nature and
    circumstances of the offense is that he tried to steal a
    million dollars from a widow, by way of her insurance
    benefits that were due to her through her purchase of
    an insurance policy through the services of the
    defendant . . . . Well, from what I heard, he’s amoral,
    period . . . . He’s a good flimflam man, as evidenced by
    all these letters I’ve received from people that say he’s
    – he is a good person, and I suppose that’s typical of a
    good con man . . . . When I consider all of the factors
    the Court should consider in sentencing, to protect the
    public from further crimes of the defendant, he simply
    doesn’t know how to function without swindling
    somebody, at least the indication so far is, and I don’t
    know that there’s any cure for that, other than
    confinement.
    23  United States v. Rodriguez, 
    660 F.3d 231
    , 233 (5th Cir. 2011) (quoting Gall v. United
    States, 
    552 U.S. 38
    , 51 (2007)) (internal quotation mark omitted).
    24 United States v. Brantley, 
    537 F.3d 347
    , 349 (5th Cir. 2008) (internal quotation
    marks omitted).
    11
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    We are satisfied that the sentence imposed is substantively reasonable.
    Despite Deason’s contention that the trial court failed to consider the § 3553(a)
    factors thoroughly, the record compels the opposite conclusion. That court
    explained at length its reasons for imposing an above-guidelines sentence.
    Deason’s claim on appeal amounts to nothing more than a disagreement with
    the court’s weighing of the § 3553(a) factors, so we conclude that the court did
    not abuse its discretion. Our precedent makes clear that we do not reweigh
    factors or reexamine their relative import; neither do we reverse a sentencing
    court on the basis that, in our estimation, a different sentence would be
    proper. 25
    Further, Deason’s contention that the sentencing court improperly relied
    on uncharged conduct is without any basis in the law. Our precedent holds
    that, at sentencing, the court is not precluded from considering uncharged
    conduct incorporated into the PSR and its guidelines calculation. 26              And,
    although Deason does not clearly articulate the extent of the variance as a
    basis for reversal, we note sua sponte that the instant variance is not
    significant when compared to much greater variances we have affirmed. 27
    B.     Issues raised for first time on appeal
    1.    Count Two (money laundering): sufficiency of indictment
    Deason claims that Count Two of the indictment is defective because it
    failed to charge that he knew the transaction involved criminally-derived
    property, asserting that this prejudiced his defense. Specifically, he contends
    that the word “knowingly,” as used in Count Two, applies only to his efforts to
    engage in a monetary transaction, and not to the subsequent qualifier “in
    25 See 
    id. 26 See
    United States v. Newsom, 
    508 F.3d 731
    , 735 (5th Cir. 2007).
    27 See 
    Brantley, 537 F.3d at 348
    , 350 (upholding 253% variance); United States v.
    Jones, 
    444 F.3d 430
    , 441-42 (5th Cir. 2006) (more than double variance).
    12
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    criminally derived property of a value greater than $10,000.” Deason failed to
    object in the district court, so we review the sufficiency of the indictment for
    plain error. 28
    “To be sufficient, an indictment must conform to minimal constitutional
    standards, standards that are met where the indictment alleges every element
    of the crime charged and in such a way as to enable the accused to prepare his
    defense . . . .” 29 Count Two charges:
    On or about April 24, 2012, in the Fort Worth Division
    of the Northern District of Texas, Caleb Deason, the
    defendant, did knowingly engage and attempt to
    engage in a monetary transaction, by, through, or to a
    financial institution, affecting interstate or foreign
    commerce, in criminally derived property of a value
    greater than $10,000, that is the purchase of a
    cashier’s check in the amount of approximately
    $67,133, such property having been derived from a
    specified unlawful activity, that is, Wire Fraud, in
    violation of 18 U.S.C. § 1343.
    Count Two essentially tracks the language of 18 U.S.C. § 1957(a), which is the
    statute under which Deason was convicted: “Whoever . . . knowingly engages
    or attempts to engage in a monetary transaction in criminally derived property
    of a value greater than $10,000 and is derived from specified unlawful activity
    shall be punished. . . .” 30
    Deason’s challenge to the sufficiency of the indictment is grounded in a
    deliberate misreading of Count Two and § 1957(a). “As a matter of ordinary
    28 United States v. Hoover, 
    467 F.3d 496
    , 498 (5th Cir. 2006). Plain error review
    involves four prongs: (1) There must be an error or defect; (2) the legal error must be clear or
    obvious; (3) the error must have affected the appellant’s substantial rights; and, (4) if the first
    three prongs are satisfied, the appellate court has the discretion to remedy the error if it
    seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett
    v. United States, 
    556 U.S. 129
    , 135 (2009).
    29 United States v. Partida, 
    385 F.3d 546
    , 554 (5th Cir. 2004).
    30 18 U.S.C. § 1957(a).
    13
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    English grammar, it seems natural to read [a] statute’s word ‘knowingly’ as
    applying to all the subsequently listed elements of the crime.” 31                 This is
    consistent with the manner in which courts usually interpret criminal
    statutes, i.e., “courts ordinarily read a phrase in a criminal statute that
    introduces the elements of a crime with the word ‘knowingly’ as applying that
    word to each element.” 32 Moreover, even if we assume arguendo that Deason
    was unaware that “knowingly” modifies criminally-derived property, any
    putative prejudice is belied by the fact that he defended himself at trial by
    claiming that he did not know the funds in his bank account were criminally
    derived. Several months prior to trial, he filed a proposed jury charge listing
    the “knowledge” element as it applied to the criminally-derived property
    element. For him to contend on appeal that the indictment is insufficient
    because he had no idea that “knowingly” applies to “criminally derived
    property” stretches his credulity beyond the breaking point. We are satisfied
    that Count Two of the indictment is constitutionally sufficient.
    2.        Count One (wire fraud): false evidence and improper venue
    Deason presents a series of related challenges to his conviction for wire
    fraud that relies on what he describes as “newly discovered and available
    evidence.” This evidence comprises only his own affidavit that relates to one
    exchange between an unnamed “individual working on my behalf” and a Wells
    Fargo customer service representative. The Wells Fargo employee purportedly
    stated to the unnamed individual that Wells Fargo has only “one wire room,
    where all incoming wires are received and posted . . . [that is] located [in] . . .
    San Francisco, California.” Relying solely on his own affidavit, Deason
    contends that (1) the government violated his right to due process by
    31   Flores-Figueroa v. United States, 
    556 U.S. 646
    , 650 (2009).
    32   
    Id. at 652.
                                                  14
    Case: 14-10461        Document: 00513157744          Page: 15     Date Filed: 08/17/2015
    No. 14-10461
    knowingly presenting false testimony about the wire transfer, so the court
    should order a new trial; and, (2) his conviction should be vacated based on
    improper venue. Because he contests venue for the first time on appeal, his
    challenge is waived. 33         And, we review his claim that the government
    knowingly presented false testimony for plain error only because he did not
    move for a new trial on this basis or otherwise alert the district court to his
    objection. 34
    To establish a due process violation based on the government’s use of
    false or misleading testimony, a petitioner must show that “(1) the statements
    in question are shown to be false; (2) the prosecution knew they were false; and
    (3) the statements were material.” 35 We note at the outset that Deason’s
    affidavit – the only “evidence” he submits in support of his claim that the
    government knowingly presented false testimony – is inadmissible hearsay
    and cannot be used to obtain a new trial. 36 But, even if we were to assume the
    veracity of the hearsay statements contained in his affidavit and their
    33  Deason contends that he preserved his venue objection by filing a motion to acquit
    under Rule 29(a) and (c). Appellant’s Brief at 53. We disagree. See United States v.
    Rodriguez-Lopez, 
    756 F.3d 422
    , 430 (5th Cir. 2014) (“A defendant waives his right to contest
    venue on appeal, however, when his motion for acquittal [at the close of the government’s
    evidence] fails to put the court and the United States on notice of the challenge to venue.”).
    Deason moved for acquittal at the close of the government’s presentation of evidence “on the
    grounds that the evidence is insufficient to sustain a conviction at this time.” As he did not
    articulate any challenge to venue, his challenge is waived. See id.; United States v. Carbajal,
    
    290 F.3d 277
    , 288 n.19 (5th Cir. 2002).
    34 See United States v. Houston, 
    648 F.3d 806
    , 813 (9th Cir. 2011); United States v.
    Caballero, 
    277 F.3d 1235
    , 1243-44 (10th Cir. 2002). By neglecting to file a motion for a new
    trial on the basis of the newly-discovered evidence, Deason failed to provide the district court
    an opportunity to correct the now-alleged error. United States v. Nixon, 
    918 F.2d 895
    , 905
    (11th Cir. 1990); cf. United States v. Blackthorne, No. 00-51256, 
    2002 WL 971621
    , at *15 (5th
    Cir. May 3, 2002) (declining to resolve whether plain error applies when a defendant fails to
    raise a Napue objection in the district court).
    35 United States v. O’Keefe, 
    128 F.3d 885
    , 893 (5th Cir. 1997).
    36 See United States v. Anderson, 
    755 F.3d 782
    , 800 (5th Cir. 2014); United States v.
    Fleming, 540 F. App’x 344, 346 (5th Cir. 2013) (per curiam) (defendant’s affidavit containing
    hearsay insufficient evidence to support a motion for a new trial); United States v. Neuman,
    505 F. App’x 308, 309 (5th Cir. 2013) (same).
    15
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    No. 14-10461
    admissibility, we would conclude that he has failed to make out any due
    process violation. The evidence adduced at trial included (1) a copy of the wire
    transfer form authorizing Transamerica to wire the funds to Deason’s Wells
    Fargo account and (2) his bank account statement reflecting a wire transfer of
    $1,004,028.41 from HSBC Bank USA to his Wells Fargo account. Even if
    Deason’s unverified and inadmissible statement were true, it would create, at
    most a conflict with the evidence adduced at trial concerning Wells Fargo’s
    wire procedures. It would not establish that the evidence and testimony
    concerning the wire at issue are “actually false.” 37 Deason has failed to make
    out a due process violation on the basis of the information contained in his
    affidavit.
    3.     Counts One and Two: double jeopardy
    Deason contends further that his conviction and sentence for both wire
    fraud and money laundering violate the Fifth Amendment’s Double Jeopardy
    Clause. Specifically, he claims that, because he was convicted of knowingly
    purchasing a cashier’s check with proceeds from a wire fraud crime, the
    § 1957(a) charge incorporated all of the essential elements of his wire fraud
    offense under § 1343, thereby merging the two offenses under Blockburger v.
    United States. He failed to raise this claim before the district court, so we
    review it for plain error only. 38
    The Double Jeopardy Clause prohibits multiple punishments for the
    same offense. 39 “When a defendant challenges multiple punishments for the
    same conduct—rather than multiple prosecutions—our double jeopardy
    analysis turns on whether Congress has authorized the result at issue.” 40
    37  See Kimmel v. Quarterman, 199 F. App’x 338, 344-45 (5th Cir. 2006) (citing United
    States v. Wall, 
    389 F.3d 457
    , 473 (5th Cir. 2004)).
    38 United States v. Odutayo, 
    406 F.3d 386
    , 392 (5th Cir. 2005).
    39 United States v. McRae, 
    702 F.3d 806
    , 839 (5th Cir. 2012).
    40 
    Id. (citation and
    internal quotation mark omitted).
    16
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    When, in one prosecution, a defendant is convicted of multiple counts
    stemming from the same criminal conduct, our review is limited to whether
    Congress intended multiple convictions and sentences under the statutes. 41
    We discern the intent of Congress by parsing the statutory language and
    reviewing the legislative history. 42
    Section 1957, which was enacted as part of the Money Laundering
    Control Act of 1986, forbids engaging in monetary transactions involving
    criminally-derived property. The essential elements are: (1) the defendant
    engages or attempts to engage (2) in a monetary transaction (3) in criminally-
    derived property (4) knowing that the property is derived from unlawful
    activity, and (5) the property is derived from “specified unlawful activity,”
    which is defined in 18 U.S.C. § 1956(c)(7). 43 Here, the specified unlawful
    activity is wire fraud, which is punishable under 18 U.S.C. § 1343.
    The government had to prove the essential elements of wire fraud to
    establish a violation of 18 U.S.C. § 1957. Thus, we cannot rule that each
    statutory provision “requires proof of a fact that the other does not.” 44 Contrary
    to Deason’s contention, the Blockburger test, however, is not dispositive; it is
    solely a rule of statutory construction.          “Insofar as the question is one of
    legislative intent, the Blockburger presumption . . . yield[s] to a plainly
    expressed contrary view on the part of Congress.” 45 Our review of the statute’s
    text and legislative history reflects that Congress intended that the conduct
    defined in 18 U.S.C. § 1957 should be punished as a separate offense, in
    addition to, and not as a substitute for, the underlying specified unlawful
    41See Garrett v. United States, 
    471 U.S. 773
    , 779 (1985).
    42Id.
    43 18 U.S.C. § 1957.
    44 United States v. Lovett, 
    964 F.2d 1029
    , 1041-42 (10th Cir. 1992) (internal quotation
    mark omitted).
    45 
    Garrett, 471 U.S. at 779
    .
    17
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    No. 14-10461
    activity. 46 Deason’s convictions under 18 U.S.C. § 1343 and § 1957 do not
    violate the Double Jeopardy Clause.
    4.     Improper questioning
    Deason claims that the district court’s questioning during the trial
    violated his Fifth and Sixth Amendment rights to a fair trial by an impartial
    jury. He contends that the court posed pointed, attacking questions
    undermining his credibility and chosen defense strategy. Deason accepted the
    court’s proposed curative instruction, so he failed to preserve his objection to
    the court’s questioning and plain error review applies. 47
    Federal Rule of Evidence 614 permits a trial judge to call or examine a
    witness. 48 “A trial judge has wide discretion over the ‘tone and tempo’ of a trial
    and may elicit further information from a witness if he believes it would benefit
    the jury,” but its efforts to move the trial along may not interfere with its “strict
    impartiality.” 49 We have stressed that “[o]ur review of the trial court’s actions
    must be based on the entire trial record” and that we will conclude that a
    46  See THE MONEY LAUNDERING CRIMES ACT OF 1986, S. REP. NO. 99-433, at 4 (1986)
    (noting the importance of “enacting a new Federal offense against money laundering”)
    (emphasis supplied); see also United States v. Kirkland, Nos. 93-2231, 93-2313, 
    1994 WL 454864
    , at *5 (6th Cir. Aug. 22, 1994) (per curiam) (“Logically this must be true or else § 1957
    would serve only as an alternative charge for each ‘specified unlawful activity’ listed in the
    statute and not a separate criminal offense.”); 
    Lovett, 964 F.2d at 1042-43
    .
    47 Deason contends that he preserved this claim by means of objection, but our review
    of the record indicates that he failed to preserve the error. Although his counsel objected to
    the trial court’s questioning, his counsel subsequently proposed that the court take a
    “remedial measure, which would be to instruct the jury that you did not mean to communicate
    any partiality or belief as to the truth or nontruth of Deason’s testimony.” The trial court
    agreed and so instructed the jury. As such, Deason failed to preserve his objection to the
    district court’s questioning. See United States v. Potts, 
    644 F.3d 233
    , 236 (5th Cir. 2011)
    (“[The defendant] accepted the court’s curative instruction without objection, thus failing to
    preserve error.”).
    48 Fed. R. Evid. 614.
    49 United States v. Saenz, 
    134 F.3d 697
    , 701-02 (5th Cir. 1998).
    18
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    court’s questioning warrants reversal only when the “cumulative effect” is
    substantial and prejudices the defendant. 50
    Reviewing here for plain error, we conclude that, when analyzed in the
    context of the entire record, the cumulative effect of the trial court’s
    questioning did not prejudice Deason. We acknowledge that the court did
    engage in several salty exchanges with both sides during the course of the trial,
    but we perceive no reversible plain error. The court’s questioning concerning
    the timing of the $1,004,028.41 transfer to Deason’s Wells Fargo account in
    relation to the text message he sent to Mrs. Secker’s sister-in-law expressing
    doubt that the claim would ever be paid, as well as his intent in sending the
    text message, is relevant to the issues presented by his “mistake” defense.
    And, because Deason referred to several text messages and emails throughout
    the course of his testimony, it was not unreasonable for the trial court to seek
    clarification of Deason’s somewhat circuitous testimony to aid the jury. We
    conclude that the trial court did not plainly err.
    5.       Count One (wire fraud): constructive amendment
    Deason contends that Count One of his indictment was constructively
    amended, claiming that his conviction relied on evidence that did not support
    his transmission of the charged wire. This claim returns to the “Iowa bank
    wire” theory he raised in his challenge to the sufficiency of the evidence related
    to Count One: “[I]t is impossible that the jury properly convicted [him] for the
    indicted act of causing the transmission of the Iowa bank wire listed in Count
    One.” Deason failed to object to the alleged constructive amendment, so we
    review for plain error. 51
    50   
    Id. at 702.
          51   United States v. Bohuchot, 
    625 F.3d 892
    , 897 (5th Cir. 2010).
    19
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    “A constructive amendment occurs when it permits the defendant to be
    convicted upon a factual basis that effectively modifies an essential element of
    the offense charged or permits the government to convict the defendant on a
    materially different theory or set of facts than that with which she was
    charged.” 52 Deason has failed to show any constructive amendment, let alone
    that the district court plainly erred. As explained earlier, Count One does not
    charge an “Iowa bank wire,” and, the jury charge essentially tracks the
    language of Count One. 53 And finally, although not clearly articulated in
    Deason’s brief, we reject any (assumed) challenge to the government’s
    presentation of Rule 404(b) evidence as constructively amending the
    indictment. The district court instructed the jurors that they could consider
    the Rule 404(b) evidence for limited purposes only. We assume that a jury
    follows the trial court’s instructions unless “there is an overwhelming
    probability that the jury [was] unable to [do so] and there is a strong
    probability that the effect is devastating.” 54 Deason does not contend that the
    jury did not follow its instructions. We conclude that he has failed to show that
    Count One of the indictment was constructively amended.
    6.     Ineffective assistance of counsel
    Deason claims that his trial counsel was constitutionally deficient for
    failing to challenge Count One on the theory that it charged an Iowa bank wire
    and for failing to obtain admissible evidence establishing that Wells Fargo had
    “one wire room” as described in Deason’s post-conviction affidavit.
    52 United States v. Thompson, 
    647 F.3d 180
    , 184 (5th Cir. 2011) (citation and internal
    quotation marks omitted).
    53 See, e.g., United States v. Seher, 
    562 F.3d 1344
    , 1363 (11th Cir. 2009) (rejecting a
    defendant’s constructive amendment claim when the “jury charge merely tracked the
    language of [the statute]”).
    54 United States v. Fortenberry, 350 F. App’x 906, 910 (5th Cir. 2009) (quoting United
    States v. Tomblin, 
    46 F.3d 1369
    , 1390 (5th Cir. 1995)) (internal quotation mark omitted).
    20
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    Generally, claims of ineffective assistance of counsel “cannot be resolved
    on direct appeal when [they have] not been raised before the district court since
    no opportunity existed to develop the record on the merits of the allegations.” 55
    The Supreme Court has emphasized that a § 2255 habeas corpus motion is the
    preferred vehicle for raising claims of ineffective assistance of counsel: “When
    an ineffective-assistance claim is brought on direct appeal, appellate counsel
    and the court must proceed on a trial record not developed precisely for the
    object of litigating or preserving the claim and thus often incomplete or
    inadequate for this purpose.” 56 Here, the record is not sufficiently developed
    concerning Deason’s allegations of his trial counsel’s deficient performance.
    We decline to review his ineffective-assistance claim – without prejudice,
    however, to his right to raise it in a collateral attack on his sentence. 57
    7.     Restitution order
    The trial court ordered Deason to make full restitution to Transamerica
    in the amount of $99,491.75. For the first time on appeal, he asserts that the
    court’s restitution order violates his Sixth Amendment rights because it is
    based on judicial findings of fact. We have reviewed this claim for plain error,
    and we conclude there is none. Deason’s theory is foreclosed by numerous
    decisions of this court holding that “judicial fact-finding supporting restitution
    orders does not violate the Sixth Amendment.” 58
    III. Conclusion
    Deason’s conviction, sentence, and restitution order are AFFIRMED.
    55 United States v. Cantwell, 
    470 F.3d 1087
    , 1091 (5th Cir. 2006) (citation and internal
    quotation mark omitted).
    56 Massaro v. United States, 
    538 U.S. 500
    , 504-05 (2003).
    57 See United States v. Isgar, 
    739 F.3d 829
    , 841 (5th Cir. 2014).
    58 United States v. Ingles, 
    445 F.3d 830
    , 839 (5th Cir. 2006) (footnote and internal
    quotation marks omitted); see, e.g., United States v. Garza, 
    429 F.3d 165
    , 170 (5th Cir. 2005)
    (“We agree with our sister Circuits, who have uniformly held that judicial fact-finding
    supporting restitution orders does not violate the Sixth Amendment.”).
    21