United States v. Steve Prophete

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12172
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00208-ACC-KRS-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVE PROPHETE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 19, 2013)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
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Steve Prophete appeals his convictions for one count of conspiracy to
commit wire and bank fraud, in violation of 18 U.S.C. §§ 1343, 1344, and 1349,
six counts of bank fraud, in violation of 18 U.S.C. §§ 2 and 1344, and one count of
making a fraudulent statement, in violation of 18 U.S.C. § 1001(a)(2). Before trial,
Prophete sought to exclude evidence that he had recently attempted fraud of a
similar nature -- involving the deposit of a fraudulent check into two SunTrust
bank accounts, and quickly withdrawing the funds before the fraud was discovered
(the “SunTrust Evidence”) -- with one of his current co-conspirators. The court
ruled that the evidence was admissible either as evidence inextricably intertwined
with the charged offenses or as Fed.R.Evid. 404(b) evidence. On appeal, Prophete
argues that: (1) the district court erred by admitting the SunTrust evidence; and (2)
the district court constructively amended the indictment when it admitted the
SunTrust evidence. After thorough review, we affirm.
Ordinarily, we review a district court’s evidentiary rulings, including the
admissibility of evidence under Rule 404(b), for abuse of discretion. United States
v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011). When a defendant objects to
Rule 404(b) evidence through a pretrial motion in limine, but does not renew his
objection when the evidence is presented at trial, our review is for plain error
because he has not preserved the objection for appeal. Id. Similarly, while we
normally review a constitutional issue de novo, United States v. Williams, 527
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F.3d 1235, 1239 (11th Cir. 2008), we review an unpreserved claim only for plain
error, United States v. Dortch, 696 F.3d 1104, 1110-12 (11th Cir. 2012) (reviewing
a constructive-amendment argument for plain error where the defendant did not
object to the challenged jury instruction that purportedly broadened the bases for
the defendant’s conviction). To establish plain error, a defendant must show (1) an
error, (2) that is plain, and (3) that affects substantial rights. Brown, 655 F.3d at
1247 n.3. If that showing is met, we may grant relief only if the error seriously
affects the fairness, integrity or public reputation of judicial proceedings. Id.
First, we disagree with Prophete’s claim that the district erred by admitting
the SunTrust Evidence. We recognize that under Rule 404(b), extrinsic evidence
of a prior bad act is not admissible as proof of a defendant’s character or to show
that a specific action is in conformity with that character. Fed.R.Evid. 404(b).
However, this evidence is admissible for other purposes, like proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. Id. Evidence of prior bad acts may be admitted if: (1) the evidence is
relevant to an issue other than the defendant’s character, (2) the government offers
sufficient proof so that the jury could find the defendant committed the past act by
a preponderance of the evidence, and (3) the probative value of the evidence is not
substantially outweighed by undue prejudice and must satisfy Fed.R.Evid. 403.
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).
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Extrinsic evidence is relevant “where the state of mind required for the
charged and extrinsic offenses is the same.” Id. at 1345; see also United States v.
McNair, 605 F.3d 1152, 1203 (11th Cir. 2010) (“[I]n every conspiracy case, a not
guilty plea renders the defendant’s intent a material issue. Evidence of such
extrinsic evidence as may be probative of a defendant’s state of mind is admissible
unless the defendant affirmatively takes the issue of intent out of the case.”). The
uncorroborated word of an accomplice that the defendant committed the extrinsic
acts can provide sufficient proof of the defendant’s commission of the acts. United
States v. Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000). For the third prong of the
Rule 404(b) analysis, “[f]actors to be considered include whether it appeared at the
commencement of trial that the defendant would contest the issue of intent, the
overall similarity of the charged and extrinsic offenses, and the temporal proximity
between the charged and extrinsic offenses.” Edouard, 485 F.3d at 1345.
Rule 404(b) does not apply to uncharged conduct that is considered intrinsic,
including conduct that arose out of the same transaction or series of transactions as
the charged offense, conduct that is necessary to complete the story of the crime, or
conduct that is “inextricably intertwined” with the charged offense. Id. at 1344.
Evidence is inextricably intertwined when “it forms an integral and natural part of
the witness’s accounts of the circumstances surrounding the offenses for which the
defendant was indicted.” Id. (quotation omitted).
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Under Fed.R.Evid. 403, relevant evidence may be excluded “if its probative
value is substantially outweighed by a danger of . . . unfair prejudice.” However,
“Rule 403 is an extraordinary remedy, which should be used only sparingly, and
the balance should be struck in favor of admissibility.” Edouard, 485 F.3d at 1344
n.8 (quotations and alterations omitted). A limiting instruction can diminish any
unfair prejudice caused by the evidence’s admission. Brown, 665 F.3d at 1247.
Here, the district court’s decision to admit the SunTrust Evidence was not
plain error -- the standard we must use since Prophete did not object to this
evidence when it was introduced at trial -- because the evidence was admissible as
intrinsic evidence inextricably intertwined with evidence of the charged bank fraud
offenses. The SunTrust Evidence described Prophete’s participation in a similar
scheme of bank fraud, with one of the same co-conspirators. Furthermore, it
explained why Prophete was recruited to join the conspiracy. Thus, the evidence
formed “an integral and natural part of the witness’s accounts of the circumstances
surrounding the offenses” for which Prophete was indicted. See Edouard, 485 F.3d
at 1344. We also add that the SunTrust Evidence was alternatively admissible
under Rule 404(b) because it showed Prophete’s intent and his knowledge of the
scheme and it met the three-part test for admissibility. See Fed.R.Evid. 404(b);
Edouard, 485 F.3d at 1344.
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Moreover, the probative value of the evidence was not substantially
outweighed by unfair prejudice. See Edouard, 485 F.3d at 1344. As the record
shows, the SunTrust evidence was highly probative of Prophete’s fraudulent intent,
which he put at issue throughout the proceedings. See id. at 1345. And although
the SunTrust fraud attempt involved a physical transaction instead of wire fraud,
the circumstances of that act and those of the charged offenses both include setting
up a bank account, creating fraudulent checks from other bank accounts, and
depositing those fraudulent checks into the original account. Temporally, the
extrinsic act occurred less than two years before the charged offenses, and, thus,
was not too remote for proper consideration. See id. at 1345-46 (holding that a
two-year time span did not render the extrinsic acts too remote).
Further, any unfair prejudice that may have existed was mitigated by the
limiting instruction the district court gave to the jury. The instruction provided that
the jury was not to rely on the Rule 404(b) evidence as evidence that Prophete
committed the charged crimes and that Prophete was only on trial for the crimes
charged in the indictment. Brown, 665 F.3d at 1247. Additionally, the jury
acquitted Prophete on one substantive bank fraud count, while convicting him on
the others, which demonstrates that the jury was not confused and could segregate
the Rule 404(b) evidence from other evidence. See McNair, 605 F.3d at 1205.
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We also reject Prophete’s argument that the district court constructively
amended the indictment. It is true that a defendant cannot be tried on charges that
are not made against him in the indictment, and when the evidence at trial or the
court’s jury instructions deviate from what is alleged in the indictment, either a
constructive amendment or a variance can arise. United States v. Flynt, 15 F.3d
1002, 1005 (11th Cir. 1994). A constructive amendment occurs “when the
essential elements of the offense contained in the indictment are altered to broaden
the possible bases for conviction beyond what is contained in the indictment.”
United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004) (quotation omitted).
The indictment can be expanded, either literally or in effect, by the prosecutor’s
actions or the court’s instructions. United States v. Behety, 32 F.3d 503, 508-09
(11th Cir. 1994) (citation omitted). A constructive amendment “is per se reversible
error.” Narog, 372 F.3d at 1247. We have said that evidence that was properly
admitted as intrinsic to the charged offenses does not impermissibly broaden the
indictment to include other crimes. United States v. Lehder-Rivas, 955 F.2d 1510,
1519 n.5 (11th Cir. 1992).
On the other hand, a “variance occurs when the facts proved at trial deviate
from the facts contained in the indictment but the essential elements of the offense
are the same.” Narog, 372 F.3d at 1247 (quotation omitted). The allegations in the
indictment and proof at trial must correspond so that the defendant may present a
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defense and is protected against a subsequent prosecution for the same offense.
United States v. Reed, 887 F.2d 1398, 1403 (11th Cir. 1989). Unlike a
constructive amendment, a variance requires reversal only when the defendant can
establish that his rights were substantially prejudiced. Narog, 372 F.3d at 1247.
In this case, we must review the constructive amendment issue for plain
error -- since Prophete did not object to the admission of the SunTrust Evidence at
trial or argue in the district court that the evidence constituted a constructive
amendment to the indictment or that it broadened the possible bases on which he
could be convicted -- and find none. Although an indictment may not be
constructively amended by presenting evidence of uncharged offenses, there are
many instances in which evidence of uncharged offenses is properly admitted in a
criminal trial. Relevant to this appeal, Rule 404(b) allows evidence of prior
extrinsic bad acts to prove intent or knowledge, and, additionally, evidence of
uncharged offenses that are intrinsic to the charged conduct is admissible. See
Fed.R.Evid. 404(b); Edouard, 485 F.3d at 1344. These types of evidence, properly
offered to prove guilt of the charged offense, do not broaden the possible bases for
a conviction, and, thus, do not constructively amend the indictment. See Narog,
372 F.3d at 1247-48; Lehder-Rivas, 955 F.2d 1510, 1519 n.5. Because, as we’ve
concluded above, the SunTrust Evidence was properly admissible, its admission,
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and the government’s reliance on those facts to support its case, did not cause a
constructive amendment of the indictment. 1
AFFIRMED.
1
Finally, to the extent Prophete is actually arguing a variance issue, he did not raise it in
his initial brief on appeal, and, thus, this issue is waived. See United States v. Curtis, 380 F.3d
1308, 1310 (11th Cir. 2004) (“[I]ssues not raised by a defendant in his initial brief on appeal are
deemed waived.”).
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