United States v. Jerry Weaver , 527 F. App'x 323 ( 2013 )


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  •      Case: 11-50961       Document: 00512274682         Page: 1     Date Filed: 06/14/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 14, 2013
    No. 11-50961                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JERRY EDWARD WEAVER,
    Defendant-Appellant
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 5:10-CR-967-5
    Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
    PER CURIAM:*
    This is an appeal from a conviction for “title washing,” a process by which
    a vehicle’s title is fraudulenty altered to indicate a clean title. The defendant,
    Jerry Edward Weaver, argues that insufficient evidence supported the jury’s
    verdict. He also argues that the prosecutor’s closing argument, which included
    a remark that fairness to the defendant should be the “last thing on [the jurors’]
    minds”, constituted plain error and a violation of his constitutional right to due
    process. For the reasons below, we affirm.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-50961      Document: 00512274682        Page: 2    Date Filed: 06/14/2013
    No. 11-50961
    FACTS AND PROCEDURAL HISTORY
    Jerry Edward Weaver was charged in a multi-count superseding
    indictment with two counts of aiding and abetting codefendant Babauk Omeed
    Harizavi in committing mail fraud, in violation of 
    18 U.S.C. §§ 2
     and 1341. The
    scheme involved the practice of “title washing,” a process by which a vehicle’s
    title is fraudulently altered to indicate a clean title. Title washing conceals
    information that should normally be contained on the title, such as notations or
    “brands” that the vehicle had been deemed non-repairable and suitable for parts
    only or deemed a salvage motor vehicle. Such brands are typically meant to put
    all on notice that the vehicle has been extensively damaged and may not be safe
    to drive.1
    Weaver, the owner and operator of JW Auto Group in Rowlett, Texas,
    purchased out-of-state automobiles from the General Services Administration
    (GSA) that he knew to be “parts-only” or “salvage,” repaired them, and then paid
    Harizavi to obtain clean titles by filing fraudulent mechanic’s lien paperwork
    and other fraudulent documents with the Bexar County Tax Assessor-Collector’s
    Office in San Antonio. Those documents functioned to remove the “salvage” or
    “parts-only” designations from the original titles. The Texas Department of
    Motor Vehicles issued the clean titles and delivered them through the U.S. mail.
    Weaver then sold the vehicles to unsuspecting customers, who would not have
    bought the vehicles had they been aware of the prior damage and designations.
    At the jury trial, Weaver claimed he did not knowingly participate in
    aiding and abetting mail fraud. Specifically, he asserted he did not know
    Harizavi was using illegal means—via the Texas mechanic’s lien statute—to
    wash the titles. He claimed he was merely a spectator to Harizavi’s title
    washing scheme, and lacked the specific intent to defraud his customers.
    1
    There is no legal means by which vehicles with salvage or parts-only titles may
    receive clean titles in Texas without reference to their prior title history.
    2
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    Moreover, he argued, he “was satisfied things were in order, and did not feel the
    need to learn the procedure Mr. Harizavi had used . . . . , and his conscience was
    clear because he had sold the cars with a clean title and he had repaired them
    so ‘the cars were safe.’”
    The jury found Weaver guilty on two counts of aiding and abetting mail
    fraud based on his sale of two title-washed cars to unsuspecting customers. The
    district court sentenced him to 24 months on each count, to be served
    concurrently, followed by a three-year period of supervised release. Weaver’s
    trial counsel withdrew after the verdict and Weaver timely appealed pro se and
    moved for release pending appeal.       The district court denied the motion.
    Weaver, through new counsel, then moved this court for release pending appeal.
    This court denied the motion because Weaver had not shown that his appeal
    would raise a substantial question of law or fact.
    DISCUSSION
    Weaver asserts two issues on appeal. First, he contends the evidence was
    insufficient to establish his guilty knowledge of the fraudulent scheme. Second,
    he argues that the prosecution’s closing argument was inflammatory, casting
    significant doubt on the jury’s verdict. He claims the closing argument met the
    plain error standard and also violated his constitutional right to due process of
    law. We address each argument in turn.
    I.    Sufficiency of the Evidence
    At the close of the government’s case and again at the close of the defense’s
    case, Weaver moved for a judgment of acquittal, asserting that the evidence was
    insufficient to prove his intent to participate in the scheme to defraud.
    Therefore, we review the claim de novo. United States v. McCauley, 
    253 F.3d 815
    , 818 (5th Cir. 2001) (holding that a denial of a motion for judgment of
    acquittal is reviewed de novo).
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    In assessing a challenge to the sufficiency of the evidence to sustain a
    conviction, we consider “whether, viewing the evidence in the light most
    favorable to the government, a rational trier of fact could have found the
    essential elements of the offense beyond a reasonable doubt.” 
    Id.
     (quotation
    omitted). “All reasonable inferences from the evidence must be construed in
    favor of the jury verdict.” United States v. Martinez, 
    975 F.2d 159
    , 161 (5th Cir.
    1992). Our review of sufficiency is “highly deferential to the verdict,” and
    recognizes that it is solely the jury’s role to assess credibility and weigh the
    evidence. United States v. Seale, 
    600 F.3d 473
    , 496 (5th Cir. 2010) (quotation
    omitted).   “The evidence need not exclude every reasonable hypothesis of
    innocence or be wholly inconsistent with every conclusion except that of guilt,
    and the jury is free to choose among reasonable constructions of the evidence.”
    
    Id.
     (quotation omitted).
    To obtain a conviction for mail fraud under 
    18 U.S.C. § 1341
    , the
    government must prove “(1) a scheme to defraud; (2) the use of the mails to
    execute the scheme; and (3) the specific intent to defraud.” United States v.
    Bieganowski, 
    313 F.3d 264
    , 275 (5th Cir. 2002) (quotation omitted). To show
    intent to defraud, the government “must prove that the defendant contemplated
    or intended some harm to the property rights of the victim.” United States v.
    Leonard, 
    61 F.3d 1181
    , 1187 (5th Cir. 1995). A jury may infer intent to defraud
    from all the facts and circumstances surrounding the transaction in question.
    United States v. Aubrey, 
    878 F.2d 825
    , 827 (5th Cir. 1989). With respect to
    aiding and abetting, the government must prove that the elements of the
    substantive offense occurred and that the defendant associated himself with it,
    participated in it, wished to bring it about, and sought by his action to make it
    succeed.    United States v. McDowell, 
    498 F.3d 308
    , 313 (5th Cir. 2007)
    (quotations omitted).
    4
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    As he did before the district court, Weaver contends the evidence was
    insufficient to prove his knowledge or intent beyond a reasonable doubt. He
    asserts that, to the contrary, the record establishes that he repaired vehicles he
    believed to be salvageable, then sold them after Harizavi brought him what he
    believed to be legitimately clean titles. Weaver argues that he was ignorant of
    the process by which titles were procured and that Harizavi was the sole
    perpetrator of the scheme to defraud.
    Weaver ignores the overwhelming weight of the evidence establishing his
    guilty knowledge, including his own written confession. At trial, FBI Agent
    Heath Janke testified that Harizavi became the subject of a sting operation
    regarding title washing activities in Texas, after which he agreed to be a
    confidential informant (CI), cooperating with the investigation and assisting in
    the collection of evidence against customers paying him to obtain fraudulent
    titles. As a result, agents learned that Weaver and JW Auto Group had paid for
    six washed titles on GSA cars in June 2010. In August, after Harizavi became
    a CI, Weaver contacted him to place more orders for clean titles on parts-only or
    salvage cars, and Harizavi recorded phone conversations regarding the
    transactions, which recordings were played for the jury.
    Following these conversations, Agent Janke orchestrated a controlled
    delivery of three clean titles that Weaver had paid Harizavi to procure through
    the use of fraudulent paperwork.        After accepting the paperwork from a
    deliveryman, Weaver was confronted by agents and admitted to having used
    Harizavi to obtain good clean titles for salvage or parts-only vehicles.
    Specifically, Agent Janke testified that: (1) Weaver admitted he purchased GSA
    vehicles because the government did not report damage or title status to Carfax,
    Inc., meaning that customers could not independently investigate the vehicle
    history; (2) Weaver knowingly purchased cars with salvage or parts-only titles
    for which he knew he could not legitimately obtain clean titles; (3) after selling
    5
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    Harizavi some parts on such a vehicle and learning that Harizavi could
    fraudulently obtain clean titles, Weaver paid Harizavi to wash titles for him; and
    (4) Weaver then sold the cars without disclosing their true nature or prior
    designation to his customers. Weaver told the agents that he did not believe he
    had wronged his customers because the cars he sold were in fact adequately
    repaired. He advised the agents that he engaged in the fraudulent scheme
    because he was having serious financial difficulties. Weaver also voluntarily
    provided the agents with a written confession of his knowledge and guilt, which
    statement was read to the jury and admitted into evidence.
    Harizavi also testified, explaining the fraudulent process by which he
    obtained clean titles for his customers and stating that he had explained the
    process to Weaver, after which Weaver hired him to obtain fraudulent clean
    titles for GSA parts-only or salvage vehicles. According to Harizavi, at one point
    he specifically instructed Weaver on how to obtain the clean titles without his
    assistance, but Weaver preferred to pay him to do it.
    Weaver testified in his own defense, asserting that although he had been
    in the car business for over 10 years, he did not understand mechanic’s liens or
    the process by which titles were obtained; that Harizavi never told him that the
    titles he paid for were illegitimate; and that he believed the titles were in fact
    legal. He specifically denied any knowledge of Harizavi’s scheme and testified
    he had been deceived by Harizavi. Nevertheless, Weaver conceded on cross-
    examination that he had admitted his guilt to the FBI agents who questioned
    him. Weaver explained that he eventually became suspicious of Harizavi and
    admitted his mistake when he realized that Harizavi had taken advantage of
    him.
    Viewing the record in the light most favorable to the verdict, the evidence
    was sufficient to prove Weaver’s guilty knowledge and knowing participation in
    the scheme to defraud. See McDowell, 
    498 F.3d at 313
    ; Leonard, 
    61 F.3d at
    6
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    1187; Aubrey, 
    878 F.2d at 827
    . Weaver’s insufficiency argument amounts to no
    more than an assertion that the jury should have credited his testimony denying
    any knowledge of the scheme, rather than accepting Agent Janke’s testimony,
    Harizavi’s testimony, or his own written confession. The jury, however, was
    entitled to discredit Weaver’s testimony and credit the government’s version of
    events, and this court should not revisit that credibility determination. See
    Seale, 
    600 F.3d at 496
    . Accordingly, we find the evidence sufficient to support
    a conviction of aiding and abetting mail fraud.
    II.    Remarks in Prosecutor’s Closing Argument
    Weaver asserts that the prosecutor made improper and prejudicial
    remarks during closing argument.        First, he argues that the prosecutor
    improperly told the jurors that fairness to Weaver should be “the last thing” on
    their minds. The government counters that, because the defense’s theme was
    “[i]t is not fair to Jerry Weaver,” the prosecutor argued in rebuttal to the jury
    that “[f]airness to Jerry Weaver should be the last thing on [a juror’s] mind”
    when compared to the material false representations Weaver made to the
    victims of his fraud. Second, Weaver points to the prosecution’s closing rebuttal,
    wherein the prosecutor argued that “according to [Weaver], everyone is a liar,
    but him.” The government explains the prosecutor intended the sarcastic
    comment      to   mean   that   Weaver      was   arguing    the    government’s
    witnesses—Weaver’s customers, the GSA vehicle evaluators, and the FBI—were
    “all liars.” Third, Weaver claims prejudice resulting from the prosecutor’s
    remark on Weaver’s “arrogance” in discounting GSA evaluators’ opinions on the
    salvageability of the vehicles. Weaver contends that these closing remarks
    satisfied the plain error standard and denied him due process of law.
    a.    Plain Error Analysis
    It is undisputed that Weaver failed to object to the prosecutor’s comments
    at closing. Consequently, review is for plain error. United States v. Gracia, 522
    7
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    50961 F.3d 597
    , 600 n.2 (5th Cir. 2008) (holding that when a defendant does not object
    to allegedly improper prosecutorial comments at trial, this court reviews only for
    plain error). To demonstrate reversible plain error: “(1) there must be an error
    or defect—some sort of [d]eviation from a legal rule—that has not been
    intentionally relinquished or abandoned; (2) the legal error must be clear or
    obvious, rather than subject to reasonable dispute; (3) the error must have
    affected the appellant’s substantial rights; and (4) if the above three prongs are
    satisfied, the court of appeals has the discretion to remedy the error—discretion
    which ought to be exercised only if the error seriously affect[s] the fairness,
    integrity or public reputation of judicial proceedings.”        United States v.
    Escalante-Reyes, 
    689 F.3d 415
    , 419 (5th Cir. 2012) (en banc) (quoting Puckett v.
    United States, 
    556 U.S. 129
    , 135 (2009)) (internal quotation marks omitted and
    alterations in Puckett).
    With respect to alleged improper prosecutorial remarks, the third prong
    of plain error review “sets a high bar,” with the determinative question being
    “whether the prosecutor’s remarks cast serious doubt on the correctness of the
    jury’s verdict.” Gracia, 522 F.3d at 603 (quotation omitted). The effect of a
    prosecutor’s remarks is evaluated in the context of the trial as a whole. United
    States v. Mendoza, 
    522 F.3d 482
    , 496 (5th Cir. 2008). Specifically, this court
    considers: (1) the magnitude of the prejudicial effect of the prosecutor’s remarks;
    (2) the efficacy of any cautionary instruction by the judge; and (3) the strength
    of the evidence supporting the conviction. 
    Id. at 492
     (citations omitted).
    The prosecutor’s “fairness” comment was improper. Weaver’s argument,
    however, fails on the third prong of plain error review—any error did not affect
    Weaver’s substantial rights because of the overwhelming evidence supporting
    his conviction, as discussed in detail above. See United States v. Vaccaro, 
    115 F.3d 1211
    , 1215 (5th Cir. 1997); see also Puckett, 
    556 U.S. at 135
    . Indeed, the
    strength of the evidence severely limited the magnitude of any prejudicial effect
    8
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    that the comment may have had. Consequently, Weaver’s plain error argument
    fails.
    b.       Due Process Analysis
    Weaver asserts that the prosecutor’s closing argument violated his
    constitutional right to due process of law, which he contends in his reply brief is
    distinct from his plain error argument. Weaver Reply Br. at 2 (stating that this
    court should also “review for a violation of the Due Process Clause without the
    need for showing all the elements of plain error.”). Nevertheless, he does not
    clearly cite a standard for an independent constitutional due process violation
    and instead seems to conflate meeting the plain error standard with a denial of
    one’s constitutional right to due process of law. See Weaver Opening Br. at 8
    (“Mr. Weaver respectfully submits that the prosecutor’s argument for no fairness
    to the accused . . . infected the fairness, integrity and public reputation of the
    trial. Mr. Weaver further submits this denial of fairness constitutes plain error
    in violation of his rights under the United States Constitution as defined by the
    United States Supreme Court and this Circuit.”).
    Indeed, the standard he appears to cite for such a due process violation is
    the fourth prong of the plain error analysis—whether the error seriously affected
    the fairness, integrity or public reputation of judicial proceedings. See id.; id. at
    14 (quoting Gracia, 
    522 F.3d at 600
    ) (“[T]he comments made by the prosecutor
    also infected the ‘fairness, integrity and public reputation of his trial.’”).2
    Therefore, we treat Weaver’s due process argument as an argument that the
    fourth prong of plain error review was satisfied. See Weaver Opening Br. at 11
    (“[T]he right to a fair trial is part of the fundamental guarantee of due process
    provided by the United States Constitution. Because the defense did not object,
    2
    Of note, Gracia applied the fourth prong of plain error review, and did not address
    whether the prosecutor’s closing remarks violated the defendant’s constitutional right to due
    process. Gracia, 
    522 F.3d at 605
    .
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    the review of this point of error is for plain error. Respectfully, the prosecutor
    violated this right when she told the jury that fairness should be the last thing
    on their minds when it came to Mr. Weaver.”) (emphasis added).3
    We have held that “[m]eeting all four prongs of plain-error review is
    difficult, as it should be.” United States v. John, 
    597 F.3d 263
    , 285 (5th Cir.
    2010) (quoting United States v. Dominguez Benitez, 
    542 U.S. 74
    , 83 n.9 (2004))
    (internal quotation marks omitted). The fourth prong of plain error review is
    discretionary, 
    id.,
     and is “meant to be applied on a case-specific and
    3
    At another point in his opening brief, Weaver seems to assert that whether a
    prosecutor’s remarks were “inflammatory” is the standard for determining a due process
    violation:
    This Court has designated this “due process standard” as “the Donnelly
    ruler.” United States v. Mendoza, 522 [F.3d] 482, 496 (5th Cir. 2008). Under
    this standard, the Donnelly ruler is a measuring stick by which the Government
    can add up the inches of error and still prevail by showing there was no due
    process violation. However, in Mendoza, the inches did not add up to a violation
    because the prosecutor’s comments were “not inflammatory.” 
    Id.
    Respectfully, the statements in this case are not only inflammatory by
    implication, they are explicitly inflammatory.
    Weaver Opening Br. at 13 (citing Donnelly v. DeChristoforo, 
    416 U.S. 637
    , 643 (1974)).
    The Mendoza panel, however, applied our three-factor test articulated above for
    reversible error due to prosecutorial misconduct: (1) the magnitude of the prejudicial effect of
    the prosecutor’s remarks; (2) the efficacy of any cautionary instruction by the judge; and (3)
    the strength of the evidence supporting the conviction. Mendoza, 
    522 F.3d at 492
    . The goal
    of this analysis is to determine “whether the prosecutor’s remarks cast serious doubt on the
    correctness of the jury’s verdict.” 
    Id.
     Though noting that “[t]he difference between the due
    process standard and one that considers the seriousness of doubt about the correctness of the
    jury’s verdict[] may be disputed,” the Mendoza panel also applied the “Donnelly ruler” for
    constitutional error:
    One point at which caselaw concerning constitutional error intersects
    with the caselaw about review of improper closing arguments is when the
    prosecutor’s remarks have “so infected the trial with unfairness as to make the
    resulting conviction a denial of due process.” Under the Donnelly test of
    pervading unfairness, an improper comment may become constitutional error,
    but it is only the exceptional case in which that will occur.
    Mendoza, 
    522 F.3d at 493
     (5th Cir. 2008) (citing Donnelly, 
    416 U.S. at 643
    ). Applying both
    tests, the Mendoza panel found no reversible or constitutional error based on the prosecutor’s
    closing comments about the defendant’s courtroom demeanor. Id. at 496-97.
    In any case, Mendoza may be distinguished because the defendant preserved the
    alleged error for appellate review. Here, Weaver did not object to the prosecutor’s closing
    argument and thus failed to preserve the argument for our review.
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    fact-intensive basis,” id. at 286 (quoting Puckett, 
    556 U.S. at 142
    ) (internal
    quotation marks omitted).    Nevertheless, “[t]he discretion inherent in the
    plain-error standard is not tantamount to caprice.” Id. at 288.
    Here, because Weaver failed to satisfy the third prong of plain error
    review, we logically conclude that the prosecutor’s closing argument did not
    seriously affect the fairness, integrity or public reputation of judicial
    proceedings. Therefore, to the extent Weaver argues a due process violation
    separate from his plain error argument, the argument fails.
    CONCLUSION
    Sufficient evidence supported Jerry Edward Weaver’s convictions of aiding
    and abetting mail fraud. Furthermore, Weaver has not established all of the
    elements for plain error relief stemming from his claim of prosecutorial
    misconduct, nor has he sufficiently argued any freestanding due process
    violation. We therefore AFFIRM.
    11