United States v. Marfo
| Decision Date | 23 May 2014 |
| Docket Number | No. 12-4910,12-4910 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANK MARFO, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
UNPUBLISHED
Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:11-cr-00657-MJG-3)
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Kenneth Everett McPherson, KENNETH E. MCPHERSON, CHTD., Riverdale, Maryland, for Appellant. John Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Gregory W. Gardner, LAW OFFICES OF GREGORY W. GARDNER, PLLC, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Frank Marfo ("Marfo") appeals his convictions for murder for hire, bank fraud, conspiracy, and other offenses, alleging multiple evidentiary errors stemming from his trial. For the reasons that follow, we affirm.
From May 2009 through November 2011, Marfo participated in a scheme to steal money orders and checks and to defraud banks in Maryland and elsewhere. The scheme involved, first, the theft - principally by Marfo - of money orders and checks from rent deposit boxes located at apartment complexes in Maryland, Virginia, and Delaware. Tavon Davis ("Davis") and Bruce Byrd ("Byrd"), at Marfo's direction, recruited primarily homeless drug addicts to open fraudulent business checking, savings, and payroll accounts at banks in Maryland and New Jersey. These individuals were directed to use their own personal identification, in addition to documents provided by Marfo and Davis, which purported to authenticate the fraudulent businesses under the names that the accounts were being opened. Marfo, Davis, and other members of the fraud conspiracy would alter the payee name of the stolen money orders and checks to correspond to the name of a fraudulent business account, following which they would deposit the stolen money orders and checks into thefraudulent accounts and then withdraw the deposited funds through ATMs and other means. Davis estimated that between $1 million and $1.5 million worth of stolen money orders were deposited and withdrawn from various banks in this manner.
In May 2009, Isaiah Callaway ("Callaway") was recruited by Davis to participate in the bank fraud scheme. Davis and Marfo directed Callaway to open fraudulent bank accounts, deposit stolen money orders into fraudulent accounts, withdraw deposited funds from the fraudulent bank accounts, and recruit and pay individuals to open other fraudulent business accounts.
On December 29, 2010, Callaway was arrested by Baltimore County police while he was in the process of directing two individuals to open fraudulent business accounts at TD Bank and Bank of America. Callaway was charged under Maryland law with possession of counterfeit documents and theft. Following his arrest, Callaway was interviewed by detectives, in the course of which Callaway admitted his participation in the bank fraud scheme, but did not identify anyone in particular.
After Davis and Marfo learned of Callaway's arrest, Davis met with Callaway immediately upon his pre-trial release on the Maryland fraud charges. In January 2011, Davis referred Callaway to Larry Feldman ("Feldman"), a Baltimore attorney, to represent Callaway in relation to those charges.
In March 2011, U.S. Postal Inspector Monifa Hamilton ("Inspector Hamilton"), who had been investigating the deposit of stolen and altered money orders into fictitious business accounts at banks in Maryland and Virginia, contacted Feldman and informed him that federal law enforcement officials were interested in interviewing Callaway about the bank fraud scheme. In April 2011, Assistant United States Attorney Tamara Fine ("AUSA Fine") for the District of Maryland, who was assisting federal law enforcement officers in their investigation of the bank fraud scheme, informed Feldman that she and federal law enforcement officials wished to interview Callaway in order to obtain information about the scheme, including the identity of other participants. That same day, Feldman contacted Davis and informed him that a federal prosecutor and law enforcement officials were seeking to interview Callaway about the bank fraud scheme.
Between April 5, 2011, and April 11, 2011, Davis, Byrd, and Marfo communicated and met several times to discuss the threat to the fraud scheme posed by the arrest and possible cooperation of Callaway. They also discussed the murder for hire of Callaway by Byrd in order to prevent Callaway from providing federal law enforcement officers with information about the scheme. On April 11, 2011, Callaway was found dead in a car in Baltimore having been shot multiple times in the head.
In May 2011, Michael Copeland ("Copeland"), accompanied by his attorney, came forward with information about the murder of Callaway. Copeland, also involved in the bank fraud scheme, explained that Callaway had been murdered by an unknown triggerman hired by Davis and Marfo for the purpose of preventing Callaway from identifying Davis and Marfo to federal authorities in connection with the scheme. It was at this meeting with federal investigators that Copeland agreed to allow his future meetings with Davis to be videotaped and recorded.
During the course of these recorded meetings between May 2011 and October 2011, Davis made several statements incriminating himself in the bank fraud scheme and the murder. Davis told Copeland that if he were to be arrested, he would admit the bank fraud but deny the murder. Davis also told Copeland that he was not concerned that either the triggerman or Marfo would testify against him for the murder because they were (J.A. 409.) Davis also described the fraud scheme in detail, including an account of trips he and Marfo made to steal money orders at apartment complexes in several states. (J.A. 409-11.)
Davis was arrested on November 9, 2011, and was immediately permitted to meet privately with appointed counsel. He agreed to cooperate and admitted his role in the murder of Callaway. Davis implicated Marfo in the murder and identified Byrd as thetriggerman, stating that Byrd was paid $2, 000, to which Davis and Marfo contributed equally. Under agent supervision, Davis arranged a recorded meeting with Byrd later that day, following which Byrd was arrested.
From jail, and under the supervision of investigators, Davis continued to have contact with Marfo. During their recorded conversations, Marfo revealed that he was still involved in the bank fraud scheme. Investigators directed Davis to tell Marfo that he had someone who could meet with Marfo and deposit stolen money orders - an undercover agent. The resulting operation led to Marfo's arrest on February 13, 2012.
On February 23, 2012, a grand jury sitting in the District of Maryland returned a seven-count Superseding Indictment against Marfo, Davis, and Byrd, charging (1) conspiracy to use interstate communication facilities in the commission of murder for hire, resulting in the death of Callaway, in violation of 18 U.S.C. § 1958(a); (2) use of interstate communication facilities in the commission of murder for hire resulting in the death of Callaway, in violation of 18 U.S.C. § 1948(a); (3) conspiracy to murder a witness resulting in the death of Callaway, in violation of 18 U.S.C. § 1512(a)(1)(C); (4) murder of a witness resulting in the death of Callaway, in violation of 18 U.S.C. § 1512(a)(1)(C); (5) use and discharge of a firearm during and in relation to crimes of violence, in violation of 18 U.S.C.§ 924(c); (6) conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349; and (7) attempted bank fraud, in violation of 18 U.S.C. § 1349. Prior to trial, Davis and Byrd entered guilty pleas on certain counts pursuant to separate plea agreements that provided leniency at sentencing in exchange for testimony on behalf of the Government in the trial against Marfo.
A jury returned guilty verdicts against him on all counts and the district court imposed concurrent sentences of life imprisonment on four counts, a consecutive sentence of 120 months on another count, and concurrent sentences of 57 months on two counts.
Marfo timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.
Marfo raises eight issues on appeal, contending that the district court erred by (1) permitting Davis' attorney, Murphy, to testify pursuant to Federal Rule of Evidence 801(d)(1)(B) as to prior consistent statements made to him by Davis implicating Marfo in the Callaway murder; (2) permitting Murphy to testify during re-examination that he had told Davis that the prosecutor was "tough but fair"; (3) commenting on the weight of the evidence; (4) allowing testimony concerning several prior actsand statements by Marfo, in violation of Federal Rule of Evidence 404(b); (5) allegedly allowing the Government to disparage defense counsel; (6) directing the jury to reach a unanimous verdict; (7) instructing the jury that it could infer consciousness of guilt from Marfo's false alibi; and (8) failing to instruct the jury that it could acquit Marfo based on accomplice testimony.
Marfo concedes that he did not object in the district court to any of the items he now claims are error (except one statement in issue five above). Our review is thus for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998). "In order to establish our authority to notice an error not preserved by a timely objection, [Marfo] must show that an error occurred, that the error was plain, and that...
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