United States v. Tiffany Morris , 817 F.3d 1116 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-2510
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tiffany Rene Morris, also known as Tiffany Vann
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 15, 2016
Filed: April 5, 2016
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Before MURPHY, SMITH, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
A jury found Tiffany Rene Morris guilty of conspiracy to commit wire fraud
and five counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349. Morris
appeals the district court’s1 denials of: (1) her motion for judgment of acquittal, (2)
1
The Honorable D. Price Marshall, Jr., United States District Court Judge for
the Eastern District of Arkansas.
her motion to exclude voicemail messages, (3) a new trial based on prejudicial
statements by Mance and the prosecutor, and (4) a downward variance from the
sentencing guidelines. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Morris and Sherrye LaJoyce Mance conspired to solicit participation in fake
credit-repair or grant programs. Mance recruited most of the victims, who were told
all they needed to do was pay a fee to repair their credit or receive grant money. To
get even more money, victims could recruit others to participate in the grant program.
The enrollment fees were wired to Morris via MoneyGram. Many victims never met
Morris in person, but most spoke with her by phone. After receiving money, Morris
and Mance continued to communicate with the victims to convince them the
programs were legitimate. No participants reported higher credit scores or received
grant money. When some victims requested a refund of enrollment fees, Morris
threatened them. Mance said Morris initially recruited her to participate in the credit-
repair program, but even after realizing the programs were not real, Mance recruited
others. Mance pled guilty to conspiracy to commit wire fraud. Morris proceeded to
trial.
I.
Morris appeals the district court’s denial of her motion for judgment of
acquittal. She claims there was insufficient evidence for the conspiracy conviction
because the indictment’s “overt acts” list nine victims—different from those in the
individual wire fraud counts. Only two of the overt-act victims testified at trial.
Neither saw Morris, but both spoke to her by phone. She also attacks the sufficiency
of the evidence for the wire fraud convictions in counts 2, 4, 7, and 8 because Mance
solicited the victims and had “major involvement and control over this enterprise.”
This court reviews de novo the denial of a motion for judgment of acquittal,
viewing the evidence most favorably to the guilty verdict, resolving all evidentiary
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conflicts in favor of the government, and accepting all reasonable inferences from the
evidence. United States v. Davis, 812 F.3d 1154, 1156 (8th Cir. 2016). This court
overturns a jury verdict only if no reasonable jury could find the defendant guilty
beyond a reasonable doubt. Id.To prove conspiracy, the government’s evidence must show that “(1) a
conspiracy with an illegal purpose existed; (2) [Morris] knew of the conspiracy; and
(3) [Morris] knowingly joined and participated in the conspiracy.” United States v.
McKanry, 628 F.3d 1010, 1016 (8th Cir. 2011). “The conspiracy’s existence may be
proved by direct or circumstantial evidence.” United States v. Cain, 487 F.3d 1108,
1111 (8th Cir. 2007). To prove wire fraud, the government must show “(1) intent to
defraud, (2) participation in a scheme to defraud, and (3) the use of a wire in
furtherance of the fraudulent scheme.” United States v. Rice, 699 F.3d 1043, 1047
(8th Cir. 2012).
Mance testified that Morris recruited her to the programs. Morris told her how
much to collect from each client. Mance wired Morris the money via MoneyGram.
According to MoneyGram records, Morris recieved about $187,000 through
MoneyGram between 2004 and 2011—$104,000 from Mance and $83,00 directly
from victims. Each of the wire frauds was sent via MoneyGram. Many victims
complained to Mance and Morris. After receiving a letter from the Attorney General
about the legitimacy of the company, Mance discussed it with Morris. Morris replied
to the Attorney General on behalf of Mance, stating Mance was no longer affiliated
with the company. Morris and Mance then changed the name of the company. All
of the victims who testified had some kind of contact with Morris—either in person,
by phone, or by sending money directly to her. A reasonable jury could have found
Morris guilty of the conspiracy and wire fraud counts beyond a reasonable doubt. See
United States v. Ruiz-Altschiller, 694 F.2d 1104, 1109 (8th Cir. 1982) (“In proving
a conspiracy charge, the government is not limited to establishing the overt acts
charged in the indictment.”). See also United States v. Louper-Morris, 672 F.3d 539,
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556 (8th Cir. 2012) (“Fraudulent intent need not be proved directly and can be
inferred from the facts and circumstances surrounding a defendant’s actions.”).
II.
Morris moved to exclude voicemail messages where she is heard threatening
a victim that she had her social security numbers, personal information, and knew
where she lived. Morris argues that these messages were unfairly prejudicial, “highly
inflammatory,” with “graphic, profane, and extremely harsh language.” See Fed. R.
Evid. 403. The victim, who received threatening voicemails from both women, had
never personally met either one. The district court denied her motion, but excluded
use of, or reference to, the transcript of the voicemails. This court reviews the district
court’s denial of a motion in limine for abuse of discretion. United States v.
Blaylock, 535 F.3d 922, 927-28 (8th Cir. 2008). “That discretion is particularly broad
in a conspiracy trial.” United States v. Jones, 275 F.3d 673, 680 (8th Cir. 2001).
The district court properly admitted the voicemails. The victim testified she
spoke with Morris several times over the phone before receiving the threatening
voicemails, while Mance identified herself on her voicemails. The district court
allowed Morris to cross-examine the witnesses—both the recipient of the voicemails
and an investigator—about the caller’s identity. The court instructed the jury to
decide whether it was “Ms. Morris or whomever you decide was on these tapes.” See
United States v. Parker, 551 F.3d 1167, 1172 (10th Cir. 2008) (“[A] lay witness need
only be ‘minimal[ly] familiar[ ]’ with a defendant’s voice before offering an
identification” and “it is for the jury to assess other evidence that may undermine the
credibility of identification testimony.” (quoting United States v. Zepeda-Lopez, 478
F.3d 1213, 1219 (10th Cir. 2007)).
The district court found that the voicemails were relevant to show intent, and
were not unfairly prejudicial. See United States v. Pirani, 406 F.3d 543, 555 (8th Cir.
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2005) (en banc) (finding use of profanity in recorded conversation did not create risk
of unfair prejudice where content of conversation was relevant). In order to minimize
the focus on profanity, the court ruled that the jury should not see the transcript of the
voicemails. The court also instructed the jury to focus on the content of the messages,
not the language used. See United States v. Henson, 939 F.2d 584, 585-86 (8th Cir.
1991) (finding district court properly admitted evidence of defendant’s threats under
Rule 404(b), and evidence of threats was not unfairly prejudicial). The district court
did not abuse its discretion in admitting the voicemails.
III.
Morris moved for a new trial. This court reviews the denial of a motion for
new trial for an abuse of discretion. Lopez v. United States, 790 F.3d 867, 871 (8th
Cir. 2015). “Motions for new trials are generally disfavored and will be granted only
where a serious miscarriage of justice may have occurred.” United States v. Fetters,
698 F.3d 653, 656 (8th Cir. 2012). “The prejudicial effect of any improper testimony
is determined by examining the context of the error and the strength of the evidence
of the defendant’s guilt.” Id. “Generally, remedial instructions cure improper
statements, and substantial evidence of guilt precludes reversing the district court.”
Id. (internal quotations and ellipsis omitted).
A.
Morris moved for new trial, claiming Mance’s statement that Morris “killed a
baby” of her brother’s, suggested she had confessed to child homicide. Excusing the
jury, the court asked Mance about the statement. She explained Morris was the driver
in a car accident where her niece or nephew was killed. Morris agreed that the
statement could be cured with further questioning. When the jury returned, Mance
explained the context of the statement and that this was one of many excuses Morris
gave victims to explain why the credit-repair and grant programs were not working.
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The district court did not abuse its discretion in denying the motion for new trial
based on Mance’s statement.
B.
Morris also seeks a new trial based on the prosecutor’s comment in rebuttal
closing: “At least Ms. Mance took the stand and said this is what it was about and I
was part of it.” The district court, sua sponte, immediately instructed the jury to
disregard the comment, adding: “Remember what I told you about nobody having the
obligation to testify.” Mance did not move for a mistrial. “This court’s standard of
review when no motion for a mistrial was made at trial is only for plain error.”
United States v. Spencer, 592 F.3d 866, 880 (8th Cir. 2010). See also United States
v. Behler, 14 F.3d 1264, 1268 (8th Cir. 1994) (“Behler failed to object to the
procedures used by the district court or to request a mistrial after the district court
spoke with the jurors. Accordingly, Behler is entitled to a new trial only if the district
court committed plain error resulting in a miscarriage of justice.”). “This court has
the discretion to reverse if the defendant shows (1) an error, (2) that was ‘plain,’ (3)
‘affects substantial rights,’ and (4) ‘the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.’” United States v. Garcia-Hernandez,
803 F.3d 994, 996 (8th Cir. 2015).
“The Fifth Amendment forbids direct comment by the government on a
defendant’s failure to testify, or any indirect references to it if motivated by an intent
to call attention to a defendant’s failure to testify or would be naturally and
necessarily taken by a jury as a comment on the defendant’s failure to testify.”
United States v. Martin, 777 F.3d 984, 996 (8th Cir. 2015) (internal quotations
omitted). “Both tests require attention to the entire context of the remarks, including
the argument itself, and the larger context of the evidence introduced at trial.” Id.“A direct or especially blatant indirect comment cannot be cured by the standard
privilege instruction.” Spencer, 592 F.3d at 881. But, “where the argument in favor
of finding a constitutional violation is tenuous at best, the privilege instruction is an
additional safeguard.” Id. (brackets omitted).
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In Spencer, counsel for a co-defendant said, “You will hear directly from Fred
Spencer. He has always been cooperative. He’s not going to hide behind the Fifth
Amendment.” Id. at 880. This court found that the comment did not affirmatively
address the other defendants’ decisions not to testify, but instead emphasized that
another would testify. Id. at 881. Any reference to the defendants’ failure to testify
was “the product of inference alone,” and the court’s instruction sufficiently cured
any potential prejudice to the other defendants. Id. In Martin, the prosecutor said,
“the only people that are actually going to talk about what occurred at the house are
Geshik Martin and David Martin. That is who you heard from.” Martin, 777 F.3d
at 996. The context of the closing argument showed that the comment was intended
to rebut certain testimony, not call attention to another defendant’s silence. Id.
The prosecutor’s comment here is like those in Spencer and Martin. During
closing, Morris’s counsel spent a great deal of time attacking Mance’s credibility:
[Mance] has no humility and has no shame. If I had, and I think most
good decent people, if I had been on the witness stand for as long as she
was yesterday and gone through that type of embarrassment and
humiliation and have to talk about this ordeal, I can assure you, I would
have been out of this courtroom as quick as I could get. I wouldn’t want
to be anywhere near this courtroom or the victims of her fraud who were
sitting back there. And she was ready to come in and just sit right
amongst them. And I think that says a great deal about her character and
about her.
In rebuttal, the prosecutor said, “No humility and no shame. Talk about no humility
and no shame. At least Ms. Mance took the stand and said this is what it was about
and I was part of it.” In context, this comment countered the defense’s argument. See
Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974) (“[A] court should not lightly
infer that a prosecutor intends an ambiguous remark to have its most damaging
meaning or that a jury, sitting through lengthy exhortation, will draw that meaning
from the plethora of less damaging interpretations.”). Because the comment was not
direct or especially blatant, a reasonable jury would not naturally and necessarily
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interpret this as commenting on Morris’s failure to testify. See Spencer, 592 F.3d at
881. Any prejudice to Morris is the product of inference alone. See id. The court’s
instruction sufficiently cured any potential prejudice caused by the comment.
IV.
Morris claims the district court should have varied downward. She emphasizes
she is the caregiver for her nephew who has special needs. See United States v.
Lehmann, 513 F.3d 805, 807-09 (8th Cir. 2015) (affirming only probation when the
guidelines recommended imprisonment; district court found imprisonment would
negatively affect emotional development of defendant’s young disabled son). This
court reviews the sentence under a deferential abuse of discretion standard. United
States v. Acosta, 619 F.3d 956, 962-63 (8th Cir. 2010).
The district court properly explained its reasons for Morris’s sentence under
the § 3553(a) factors. The district court said this was not a case where Morris’s
nephew was being “essentially orphaned,” finding other family members would be
able to take care of him. The district court also considered the large number of
victims Morris defrauded, that she continued the scheme after being told to stop, and
the need to protect the public. Cf. Lehmann, 513 F.3d at 807-09 (finding Lehmann
“as mild as a felon in possession can [be],” where her daughter accidentally killed
herself with Lehmann’s gun, and due to the daughter’s accident death, incarceration
was unnecessary). The district court did not abuse its discretion by denying Morris
a downward variance.
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The judgment is affirmed.
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