U.S. v. Rivera, 01-20102.

• Decision Date: 19 June 2002
• Docket Number: No. 01-20102.,01-20102.
• Citation: 295 F.3d 461
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marcial RIVERA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

295 F.3d 461

UNITED STATES of America, Plaintiff-Appellee, v. Marcial RIVERA, Defendant-Appellant.

No. 01-20102.

United States Court of Appeals, Fifth Circuit.

June 19, 2002.

COPYRIGHT MATERIAL OMITTED

Mitchel Neurock, Laredo, TX, Paula Camille Offenhauser, James L. Powers (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

George McCall Secrest, Jr. (argued), Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before EMILIO M. GARZA, BENAVIDES and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant-Appellant Marcial Rivera was indicted for seven counts of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 2 and 1343, for conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956(h), for aiding and abetting money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(A)(i), and for threatening to retaliate against an informant in violation of 18 U.S.C. § 1513(b)(2). He was tried by a jury and convicted on all charges except for threatening to retaliate against an informant. The district court then sentenced him to concurrent terms of fifty-seven months' imprisonment on each count. On appeal, Rivera challenges the sufficiency of the evidence supporting his conviction. In addition, Rivera argues that the prosecutor committed reversible error by commenting on his post-Miranda silence and that the district court abused its discretion in denying his motion for a new trial because of juror misconduct.

I

Rivera and Robert Swanson were co-owners of a Houston business known as the Watch Shop.¹ The Watch Shop specialized in luxury watches as well as gold and other jewelry. In 1998, the Watch Shop was in serious financial trouble. By September 1999, one of the store's bank accounts, which was under Swanson's name, had a negative balance of more than $21,000. Swanson also was overdrawn significantly on his personal accounts, at one point averaging at least $1,000 per week in overdraft charges.

Beginning in March of 1998, several persons reported large, unauthorized charges made at the Watch Shop to credit cards that had been lost or stolen. First, Ernest Albers, after losing his corporate card, received a statement reflecting an unauthorized $7,398 charge at the Watch Shop. Albers contacted his credit card company, Mastercard, which in turn contacted Electronic Fleet Systems ("EFS"), the credit card processing center for the Watch Shop.² Mastercard requested that EFS make a chargeback request. In response to the EFS request, the Watch Shop supplied an unsigned copy of the credit card draft that had been manually entered into the electronic terminal and the imprinted sales receipt. EFS did not charge the Watch Shop and Mastercard suffered the loss on behalf of their customer.

Less than two weeks later, Doil Crabtree received a credit card statement revealing two unauthorized charges at the Watch Shop for $3,409 and $5,196. The issuing bank again made a chargeback request to EFS. EFS contacted the Watch Shop and spoke with Rivera. Rivera then supplied both a manually entered credit card draft and a signed sales receipt for both charges. Again, the issuing bank suffered the loss for the fraudulent purchases. Two other persons, Anthony Harper and Kenneth Vaughn, subsequently reported similar unauthorized charges on their credit cards at the Watch Shop. In each instance, Rivera provided EFS with documentation supporting the charges. The Watch Shop received payment on these charges as well.³

Linett Wilkerson, an actual customer of the store, also reported unauthorized charges originating at the Watch Shop on her account. Wilkerson purchased a watch from the store in December 1998 for $2,700. She paid $500 in cash and had the remaining $2,200 charged on her credit card. Swanson, who conducted the sale, asked Wilkerson to sign a blank charge card draft. Wilkerson pointed out that the charge slip was blank, but signed the form anyway. Wilkerson then received a credit card statement reflecting an additional $8,000 charge against her account on the same day as the purchase. Wilkerson disputed the additional charge. After failing several times to reach Swanson over the phone, Wilkerson went to the Watch Shop and spoke with Rivera. Wilkerson told Rivera that she had not made the additional $8,000 purchase and disputed the charge. Following the conversation, Rivera then supplied EFS with a proof of purchase in the form of a signed receipt. The signature Rivera provided to support the $8,000 charge exactly matched Wilkerson's signature on the blank copy that she used when purchasing the watch at the store. When Wilkerson and her credit card issuer conference-called the store, Swanson denied ever sending any documentation to EFS to support the charge. Ultimately, the $8,000 was charged back to the Watch Shop.

Three months prior to the Wilkerson charges, the Houston Police Department received a "Crime Stoppers" report alleging that Swanson was operating in stolen property and credit cards. John Dziejak, a recovering cocaine and alcohol addict, filed the report with the police. Later, he admitted that he knew of the illegal activities in the store because he had previously brought stolen credit cards to Swanson. A few weeks prior to contacting the police, Dziejak had stolen several credit cards from James Bates at a methamphetamine party. Dziejak brought those cards to the Watch Shop and gave them to Swanson. Swanson then gave the cards to Rivera. Dziejak first told Rivera to swipe the card for $1,200. When this amount was declined, Rivera swiped the card for $750, which was approved. Rivera then swiped a second card for $500. Dziejak later received a portion of the fraudulent charges and a gold necklace worth $150.

Dziejak agreed to assist the police by acting as a confidential informer. The Secret Service, working with the Houston police, obtained three phony credit cards to use in the operation registered in the names of Catherine Chi, Oneida Suoto, and Sally Metz. The police then fitted Dziejak with a transmission device and a wire. Dziejak brought the Chi and Suoto cards to the Watch Shop on September 10, 1999. He told Swanson that he had stolen the cards. Swanson ran a charge for $866 on the Chi account and for $784.81 on the Suoto account. Rivera made the manual imprints of the Suoto charge. The next day, someone at the Watch Shop attempted to make further charges on the two cards, but they were declined because they exceeded each card's credit limit.

On September 14, 1999, Dziejak returned to the Watch Shop with the third phony credit card registered to Sally Metz. Dziejak first asked Swanson to charge an amount over the card's limit. When this was refused, Swanson tried a lower amount, which was approved. According to Dziejak, Rivera assisted in the transaction, instructing Rudolfo Ramirez, an employee at the Watch Shop, as to which credit card to process, as well as reading the authorization code to Swanson.

The following day, Dziejak returned to the Watch Shop to receive his percentage of the charges. While Dziejak waited, Swanson called someone on the telephone. Swanson told the person over the phone: "Oh, well, just give — unintelligible — a check, man. He ain't going to ask you. Well if you're at the bank now, just go ahead and get some cash. I need to give this guy some money that we just, uh, did a deal with him." Swanson made the call shortly after 12:05 P.M. At 12:13 P.M., banks records show that Rivera withdrew $850 from one of the Watch Shop's accounts (Account # 1005391), the same account in which the credit card proceeds from the Chi and Suoto charges had been deposited. Several days later, Swanson paid Dziejak an additional $325 for the charges made on the Metz credit card.

II

Rivera first challenges the sufficiency of the evidence used to support his conviction for seven counts of aiding and abetting wire fraud, as well as for conspiracy and aiding and abetting money laundering. The standard for evaluating the sufficiency of the evidence is whether a rational jury, viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the offense beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); see also United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.1998). When reviewing the evidence, we draw all reasonable inferences in favor of the jury's verdict. Glasser, 315 U.S. at 80, 62 S.Ct. 457. We do not consider whether the jury correctly determined guilt or innocence, but whether the jury made a rational decision. United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.1995). Nevertheless, if the evidence gives "equal or nearly equal circumstantial support to a theory of guilt or innocence, we must reverse the conviction, as under these circumstances a reasonable jury must necessarily entertain a reasonable doubt." United States v. Garcia-Flores, 246 F.3d 451, 454 (5th Cir.2001) (quoting United States v. Lopez, 74 F.3d 575, 577 (5th Cir.1999)) (emphasis in original) (citations omitted). Because the wire fraud and money laundering convictions require proof of distinct elements, we will address each separately.

A

Rivera argues that the evidence is insufficient to support his conviction for seven counts of aiding and abetting wire fraud (counts 2-8). In order to establish wire fraud, the government must prove beyond a reasonable doubt that the defendant: (1) engaged in a scheme to defraud and (2) used, or caused the use of, wire communications in furtherance of that scheme. 18 U.S.C. § 1343.⁴ In order to obtain a conviction for aiding and abetting wire fraud, however, the government does not have to establish that Rivera actually completed each specific act charged in the indictment. United States v. Ismoila, 100 F.3d 380, 387 (5th Cir.1996). Instead,...