United States v. Arnold (Robert)

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALSTenth Circuit
FOR THE TENTH CIRCUIT June 23, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6089
(D.C. No. 5:14-CR-00347-D-3)
ROBERT W. ARNOLD, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
_________________________________
Robert Arnold appeals his convictions for wire fraud and conspiracy
to commit wire fraud, asserting that (1) the district court erred in
admitting three exhibits into evidence at trial and (2) insufficient evidence
supports his convictions. Because we conclude that the district court didn’t
abuse its discretion in admitting the challenged exhibits and that the
government presented sufficient evidence to support the convictions, we
affirm.
* This order and judgment isn’t binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. But it
may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
I
The government charged Arnold, his father (Richard Arnold Sr.),
and his brother (Ricky Arnold) with wire fraud and conspiracy to commit
wire fraud.1 See 18 U.S.C. §§ 1343, 1349. The government also charged
Arnold’s mother (Robyn Arnold) with conspiracy to commit wire fraud.
In support, the indictment alleged that the Arnolds ran a scheme in
which they encouraged individuals to participate in the “United Auto
Buyers Co-op Association” (the Association). R. vol. 1, 28. The Association,
in turn, would purportedly make all loan payments on the participants’
new vehicles through the “CECU Trust”—but only if the victims first
relinquished their financing-incentive rebates to the Arnolds. Id.According to the government’s theory of the case, the Arnolds told
potential victims that the rebates would generate sufficient interest
through investments to make the victims’ loan payments. But while the
Arnolds made some payments, they eventually stopped. Instead, Robyn
used funds from the CECU Trust bank accounts for the Arnolds’ own
personal expenses.
Faced with these allegations, Ricky and Robyn pleaded guilty to
conspiracy to commit wire fraud, and Richard pleaded guilty to wire fraud
1 To avoid confusion, we refer to defendant Robert Arnold as
“Arnold” and to his family members by their first names. We sometimes
refer to Arnold and his family members collectively as “the Arnolds.”
2
and conspiracy to commit wire fraud. But Arnold proceeded to trial. And
after a 3-day trial, the jury convicted Arnold of wire fraud and conspiracy
to commit wire fraud. Arnold now appeals.
II
On appeal, Arnold argues that (1) the district court abused its
discretion in admitting three exhibits at trial; and (2) insufficient evidence
supports his convictions.
A
Arnold asserts that the district court erroneously admitted Exhibits
401, 420, and 510 at trial.2 We review evidentiary rulings for an abuse of
2 Arnold raises several challenges to these exhibits for the first time
on appeal. For instance, he asserts that (1) even if Exhibit 401 meets the
threshold requirements for authentication as a business record under
Federal Rule of Evidence 902(11), it violates the Confrontation Clause;
(2) the district court improperly admitted Exhibit 420 because the
sponsoring witness lacked sufficient personal knowledge, under Federal
Rule of Evidence 602, “that the evidence was complete,” Aplt. Br. 48;
(3) the district court erred in admitting Exhibit 420 under Federal Rules
of Evidence 1002 and 1004; and (4) the district court erred in admitting
Exhibit 510 because the sponsoring witness’s testimony was equivocal.
But Arnold didn’t raise these arguments below. And he makes no effort to
satisfy our plain-error test on appeal. Accordingly, we decline to address
these arguments. See McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir.
2010) (noting that party advancing forfeited argument on appeal can only
prevail by establishing plain error); see also Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain
error and its application on appeal—surely marks the end of the road for
an argument for reversal not first presented to the district court.”).
3
discretion. United States v. Blechman, 657 F.3d 1052, 1063 (10th Cir.
2011). Under this standard, we won’t disturb a district court’s decision
unless we have “a definite and firm conviction that the lower court has
made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” United States v. Gordon, 710 F.3d 1124, 1156
(10th Cir. 2013) (quoting United States v. Chanthadara, 230 F.3d 1237,
1248 (10th Cir. 2000)).
1
Arnold first argues that the district court improperly admitted
Exhibit 401, which is the application generated when Georgia and John
Maynard3 applied for vehicle financing. In addition to listing the
Maynards’ gross salaries, Exhibit 401 contains some handwritten
notations: (1) the handwritten words “[U]nited [A]uto [B]uyers Co-op” next
to John’s “Other Salary” of $60,000, and (2) an arrow pointing from John’s
“Other Salary” to another handwritten note that simply says, “Robert
Arnold.” Supp. R. vol. 1, 131.
The district court ruled that Exhibit 401 was admissible as a
properly authenticated business record under Federal Rule of Evidence
Instead, we focus our inquiry on the claims of error that Arnold has
properly preserved.
3 We refer to Georgia and John Maynard separately by their first
names and collectively as “the Maynards.”
4
902(11). But according to Arnold, the exhibit was inadmissible because the
government failed to comply with Federal Rule of Evidence 901(a). See
Fed. R. Evid. 901(a) (“To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims
it is.”).
We disagree. Arnold conceded at trial that Exhibit 401 is self-
authenticating under Rule 902. And when evidence is self-authenticating
under Rule 902, it necessarily satisfies Rule 901(a). See 31 Charles Alan
Wright & Victor James Gold, Federal Practice and Procedure § 7134
(2000) (“[I]f an item of evidence is within one of the [categories of items
listed in Rule 902], the authentication requirement of Rule 901(a) is
satisfied.”); see also United States v. Jenkins, 540 F. App’x 893, 900-01
(10th Cir. 2014) (unpublished) (rejecting defendant’s argument that
evidence wasn’t authenticated under Rule 902(11) because custodian
didn’t testify from personal knowledge at trial). Accordingly, we reject this
argument.
We likewise reject Arnold’s argument that the district court erred in
admitting Exhibit 401 because its handwritten notation linking Arnold to
the Association was “unduly prejudicial.” Aplt. Br. 44; see Fed. R. Evid.
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403 (“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.”).
We agree with Arnold that the handwritten notation might support
an inference connecting Arnold to the Association. But Arnold doesn’t
explain how such an inference is unfair. See United States v. Rodriguez,
192 F.3d 946, 951 (10th Cir. 1999) (explaining that evidence is only
unfairly prejudicial if it increases the risk of conviction by adversely
affecting the jury’s attitude toward the defendant in a manner unrelated
to his guilt or innocence). Thus, Arnold has failed to show that the district
court abused its “considerable discretion” in admitting Exhibit 401. United
States v. MacKay, 715 F.3d 807, 839 (10th Cir. 2013) (quoting United
States v. Cerno, 529 F.3d 926, 936 (10th Cir. 2008)).
2
Next, Arnold argues that the district court abused its discretion in
improperly admitting Exhibit 420. Exhibit 420 is a compilation of screen-
shots that Georgia captured from John’s cellphone and then printed. The
resulting images depict text messages exchanged between John and
Arnold.
At trial, John testified that he exchanged text messages with Arnold
in association with the CECU Trust and that he saved “[m]ost” of those
text messages on his phone. R. vol. 3, 206. John also testified that he
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“th[ought]” Georgia captured images of the text messages and that
together, the Maynards then provided those images to law enforcement.
Id.Arnold asserts that the government failed to properly authenticate
Exhibit 420 under Rule 901 because John testified that he wasn’t sure
whether the text messages Georgia printed included all of the messages
John exchanged with Arnold. Thus, Arnold reasons, no evidence supported
“a finding that [Exhibit 420] was what the proponent claimed it was, i.e., a
full and complete picture of the text messages between” the two men. Aplt.
Br. 48.
But to authenticate a particular item, its proponent must simply
“produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). And “[w]hen ‘evidence is
unique, readily identifiable and relatively resistant to change, th[at]
foundation need only consist of testimony that the evidence is what its
proponent claims.’” United States v. Yeley-Davis, 632 F.3d 673, 683 (10th
Cir. 2011) (quoting United States v. Johnson, 977 F.2d 1360, 1367 (10th
Cir. 1992)).
Here, the government never represented at trial that the exhibit
contained all of the text messages between John and Arnold. Instead, the
government properly authenticated Exhibit 420 as a document that
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displayed Georgia’s screen-shots of the text messages that John saved on
his phone. Thus, the district court didn’t abuse its discretion in admitting
Exhibit 420.
3
Arnold also argues that the district court abused its discretion in
admitting Exhibit 510. Like Exhibit 420, Exhibit 510 comprises text
messages that Arnold exchanged with a victim—this time, John Haley.
But unlike Exhibit 420, Exhibit 510 doesn’t contain screen-shots of the
text messages themselves; instead, Haley explained at trial that he copied
the contents of the text messages from his phone and pasted those
contents into a separate document.
Arnold asserts that the government failed to properly authenticate
Exhibit 510 under Rule 901 because Haley “cut and pasted the text
messages” into another document. Aplt. Br. 51. According to Arnold, the
resulting document contained insufficient distinctive identifiers—e.g.,
dates, phone numbers, and customary text message format—to satisfy
Rule 901’s authentication requirement.
Rule 901 provides that the party offering a piece of evidence can
establish that the evidence “is what the proponent claims it is” simply by
presenting the testimony of a witness with knowledge that the “item is
what it is claimed to be.” Fed. R. Evid. 901(a), (b)(1). Here, Haley testified
8
that he received the original text messages from Arnold and that he
personally copied the contents from his text messages into another
document. Haley also testified as to the general time frame and the order
of events that occurred when he received particular messages and groups
of messages. Haley’s testimony satisfied Rule 901. Moreover, whether the
jury believed that Haley accurately copied and pasted the contents of the
text messages goes to the weight of the evidence, not its admissibility. Cf.
Yeley-Davis, 632 F.3d at 683 (noting that deficiencies in chain of custody
“go to the weight of the evidence, not its admissibility; once admitted, the
jury evaluates the defects and, based on its evaluation, may accept or
disregard the evidence” (quoting United States v. Smith, 534 F.3d 1211,
1225 (10th Cir. 2008))). Thus, the district court didn’t abuse its discretion
in admitting Exhibit 510.4
B
Next, Arnold argues that the government failed to present sufficient
evidence to support his convictions for wire fraud and conspiracy to
commit wire fraud. We review the sufficiency of the evidence de novo,
4 In addition to challenging the district court’s individual evidentiary
rulings, Arnold also asserts that the cumulative impact of these alleged
errors requires reversal. But because we conclude that the district court
didn’t err in admitting any of the challenged exhibits, this argument
necessarily fails. See Hanson v. Sherrod, 797 F.3d 810, 853 (10th Cir.
2015) (“[W]e cannot engage in a cumulative error analysis absent at least
two errors.”).
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asking “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Sharp,
749 F.3d 1267, 1275 (10th Cir. 2014) (quoting United States v. Serrato,
742 F.3d 461, 472 (10th Cir. 2014)).
1
To convict Arnold of conspiracy, the government had to prove that
“(1) two or more persons agreed to violate the law, (2) the defendant knew
the essential objectives of the conspiracy, (3) the defendant knowingly and
voluntarily participated in the conspiracy, and (4) the alleged
coconspirators were interdependent.” United States v. Fishman, 645 F.3d
1175, 1186 (10th Cir. 2011) (quoting United States v. Baldridge, 559 F.3d
1126, 1136 (10th Cir. 2009)). Here, Arnold argues that the government
failed to prove the second, third, and fourth of these elements.
Arnold first asserts that we must reverse because there “was no
direct evidence that [he] knew the essential objective[] of the conspiracy,
which was to fraudulently dupe victims out of their rebate checks by
promising free vehicles under the car program.” Aplt. Br. 34.
But the government isn’t required to present direct evidence of the
defendant’s knowledge of the conspiracy’s objective or of the defendant’s
knowing and voluntary participation in the conspiracy. Instead,
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circumstantial evidence will suffice. See United States v. Small, 423 F.3d
1164, 1182-83 (10th Cir. 2005). Here, when viewed in the light most
favorable to the government, sufficient circumstantial evidence proves
that Arnold knew the essential objectives of the conspiracy.
First, while Robert initially purported to be concerned about Haley’s
late payments, he eventually stopped responding to Haley’s text messages
altogether. Similarly, Arnold initially regularly communicated with
Rhonda Taylor and the Maynards, but after some missed payments,
Robert simply referred them to Richard. This failure to respond supports
an inference that Arnold understood that the scheme was fraudulent. See
United States v. Walsh, 6 F. App’x 781, 786 (10th Cir. 2001) (unpublished)
(noting that failure to respond to victims’ requests for refunds is probative
of fraudulent intent).
Second, the jury could conclude that Arnold couldn’t plausibly
believe that the victims’ financing rebates would actually generate enough
interest to make loan payments for the life of their loans. For instance,
Haley financed $35,213 of his vehicle’s purchase price. His monthly loan
payments were $601.93. And he received a $7,000 rebate, which he turned
over to the CECU Trust. For that rebate to cover all of Haley’s monthly
vehicle payments, the annual return on investment would have to be over
one hundred percent—a highly implausible scenario. See United States v.
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Dazey, 403 F.3d 1147, 1163 (10th Cir. 2005) (holding that while the
defendant may have believed promises that turned out to be false, jury
was entitled to conclude otherwise in light of “undeniable implausibility of
these representations”).
This circumstantial evidence of Arnold’s knowledge of the fraudulent
nature of the scheme distinguishes this case from United States v.
Rahseparian, 231 F.3d 1257 (10th Cir. 2000), which Arnold cites. In
Rahseparian, we held that evidence of the defendant’s mere involvement
in a fraudulent scheme run by his family members, without more, didn’t
prove the defendant’s specific intent to commit fraud. Id. at 1261-64. But
here, as discussed above, sufficient circumstantial evidence indicates that
Arnold had knowledge of the scheme and its fraudulent nature.
Next, Arnold argues that the government presented insufficient
evidence to prove that he “knowingly and intentionally participated in the
scheme to defraud.” Aplt. Br. 39. Specifically, Arnold argues that
“insufficient direct or circumstantial evidence . . . indicated coordination
and concert of action.” Id.We disagree. The government presented evidence that Arnold and
Ricky worked together to structure financing deals for the Maynards’
vehicles. Similarly, Ricky told Taylor that Arnold would handle details
surrounding her purchase. Arnold also handled most steps of Haley’s
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vehicle purchase. Arnold even purchased a vehicle of his own through the
scheme, and the CECU Trust account continued making payments on
Arnold’s vehicle’s loan after Arnold knew the account had stopped making
payments on Taylor’s, Haley’s, and the Maynards’ loans. This evidence,
combined with the circumstantial evidence indicating that Arnold knew of
the fraudulent nature of the scheme, is sufficient to prove Arnold’s
knowing participation in the fraudulent scheme.
Finally, Arnold makes a passing suggestion that the government
presented insufficient evidence to prove coordination and concert of action.
But as discussed above, the government presented evidence that Arnold
cooperated with Ricky to structure financing deals for the Maynards.
Thus, this argument also fails. Accordingly, we conclude that the
government presented sufficient evidence to support Arnold’s conviction
for conspiracy to commit wire fraud.
2
Next, Arnold challenges the sufficiency of the evidence supporting
his conviction for wire fraud. To convict Arnold of that offense, the
government had to prove “(1) [he] participated in a scheme to defraud;
(2) [he] intended to defraud; and (3) a use of an interstate wire in
furtherance of the fraudulent scheme.” United States v. Caldwell, 560 F.3d
1214, 1218 (10th Cir. 2009) (quoting United States v. Turner, 551 F.3d
13657, 664 (7th Cir. 2008)).
Arnold doesn’t suggest the government presented insufficient
evidence to prove he used an interstate wire. Instead, he argues only that
the government failed to present sufficient evidence of the first and second
elements of wire fraud. But in support, Arnold simply renews the same
unsuccessful arguments that he advances in challenging the sufficiency of
the evidence supporting his conspiracy conviction. Because the same
evidence that proves Arnold knew the essential objectives of the
conspiracy to commit wire fraud and Arnold’s knowing and voluntary
participation in that conspiracy also proves that Arnold participated in a
scheme to defraud and intended to defraud, we reject this argument.
* * *
Because (1) the district court didn’t abuse its discretion in admitting
Exhibits 401, 420, and 510; and (2) the government presented sufficient
evidence to support Arnold’s convictions for wire fraud and conspiracy to
commit wire fraud, we affirm.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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