United States v. Rosenthal

• Decision Date: 14 October 2015
• Docket Number: No. 13–41329.,13–41329.
• Citation: 805 F.3d 523
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Marc Garrett ROSENTHAL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

805 F.3d 523

UNITED STATES of America, Plaintiff–Appellee

v.Marc Garrett ROSENTHAL, Defendant–Appellant.

No. 13–41329.

United States Court of Appeals, Fifth Circuit.

Oct. 14, 2015.

Robert Alton Parker, Esq. (argued), U.S. Department of Justice, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

David L. Botsford (argued), Law Office of David L. Botsford, Austin, TX, for Defendant–Appellant.

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

Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit Judges.

Opinion

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal does not challenge the sufficiency of the evidence for charged widespread corruption involving a lawyer, a state judge, and a former state legislator. Instead, the lawyer, Marc Garrett Rosenthal, claims he is entitled to a new trial due to procedural errors, such as in obtaining wiretap evidence. He was found guilty by a jury of: racketeering conspiracy, in violation of 18 U.S.C. § 1962(d), the Racketeer Influenced and Corrupt Organizations Act (RICO) (count one); five counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2 (counts two—six); witness tampering, in violation of 18 U.S.C. §§ 1512(b)(1) and 2 (count seven); two counts of obstruction of an official proceeding, in violation of 18 U.S.C. §§ 1512(c)(2) and 2 (counts eight and nine); aiding-and-abetting extortion, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 2 (count ten); and three counts of honest-services mail fraud, in violation of 18 U.S.C. §§ 1341, 1346 and 2 (counts 11–13). At sentencing, the district court dismissed counts six and 13 due to insufficient evidence. Rosenthal was sentenced to 240 months' imprisonment.

At issue are the extensions of authorizations to intercept telephone communications admitted as evidence at trial; three jury instructions; and a statement made by the Government during rebuttal closing argument. Each issue is reviewed only for plain error. AFFIRMED.

I.

Rosenthal was a shareholder in Rosenthal & Watson (R & W), a personal-injury law firm with offices in Austin and Brownsville, Texas. In a criminal scheme spanning approximately four years, Rosenthal, among other crimes: bribed a state judge for favorable rulings, orders, and treatment; conspired with others to manipulate personal-injury actions by paying witnesses for false statements and testimony; fabricated evidence; fixed the random case assignment system in order to ensure cases were filed before judges he preferred; and committed several acts of fraud.

Although several people associated with R & W participated in Rosenthal's offenses, most of the evidence at trial focused on the following individuals: Abel Limas, a state-court judge who became affiliated with R & W; Jim Solis, a former Texas state representative, and of-counsel to R & W; and Gilbert Benavides, an unlicensed lawyer employed by the firm. All three testified against Rosenthal at trial. The Government presented detailed evidence regarding Rosenthal's illegal scheme, grouped below as the Union Pacific Railroad cases, and involvement with then-state-judge Limas.

Rosenthal represented the estate of a man killed when a train struck his vehicle at a railroad crossing. According to Benavides' testimony, in an attempt to force a settlement with Union Pacific, he and Rosenthal enlisted Benavides' cousin to make false statements. The cousin stated falsely he was present at the accident scene, and witnessed the train hit the stopped vehicle without sounding its horn or otherwise warning of its approach. Rosenthal used the false statement to induce Union Pacific to settle in 2006 for more than $1 million. At Rosenthal's behest, Benavides paid his cousin $5,000, and another family member $4,000, for their assistance.

In another matter, Rosenthal represented a woman who was severely injured when she fell from a Union Pacific train after attempting to board illegally. Benavides testified Rosenthal directed him to contact a deputy sheriff present at the accident scene and offer to pay him to state falsely the train's engineer invited the woman to board the train. The deputy was also instructed to say he overheard the engineer say Union Pacific “[did] not care if its trains run over wetbacks”. The deputy agreed and made these false statements in an affidavit and deposition, which Rosenthal sent to Union Pacific in an attempt to induce settlement. Rosenthal additionally threatened to erect billboards featuring the comment falsely attributed to the engineer. Union Pacific eventually settled in 2007 for $575,000. The deputy received $4,000 for his cooperation.

In a third matter, Rosenthal represented a passenger in an automobile hit by a Union Pacific train. In another attempt to force settlement, Rosenthal contacted Union Pacific and repeated the earlier statements of the deputy. Rosenthal also enlisted a friend to pose as a Union Pacific attorney, telephone the train conductor, and persuade the conductor to state the train's horn had not been blowing at the time of the accident. The effort was unsuccessful; the conductor, suspicious of the call, reported it to Union Pacific, which traced it to Rosenthal's associate in 2007.

In 2008, Rosenthal expanded his scheme and began working with Solis, a former state legislator who had represented the city of Harlingen, Cameron County, Texas, from 1993–2006, to bribe Limas, an elected state-court judge in Cameron County, for favorable rulings and treatment. Solis worked primarily in R & W's Brownsville office in Cameron County. Solis testified Rosenthal viewed Limas as a judge who was friendly to plaintiffs. To ensure two high-profile actions would be heard in Limas' court, Rosenthal and Solis worked with an employee in the clerk's office to circumvent the regular assignment process and have the matters assigned to Limas.

Limas was running for re-election during this time period and received thousands of dollars in campaign donations from Rosenthal and others at R & W. Shortly after Limas lost the primary election in March 2008, he spoke with Rosenthal and Solis about a possible “of counsel” position at R & W at the end of his term. According to Limas and Solis, for the remainder of his term as a judge, Limas agreed to enter orders favorable to Rosenthal in each of his pending actions in exchange for a position with R & W, and a share of the recovery in one of those matters. Over several months, Rosenthal, Solis, and Limas had repeated ex parte meetings and communications, some of which were intercepted by a Title III wiretap and played for the jury during trial. The conversations included: motions or orders Rosenthal and Solis wanted ruled upon in their favor; instructions to Limas regarding those orders; and confirmation of Limas' financial incentive. Solis testified that, after one such meeting, and pursuant to Rosenthal's instruction, he gave Limas a box containing $8,000.

As the end of Limas' term approached in December 2008, Rosenthal's two above-referenced actions had not been resolved. Solis testified that Rosenthal wanted the matters transferred to another plaintiff-friendly judge, rather than Limas' successor. According to Limas' testimony, he transferred the actions, at Rosenthal's request, to another state judge. One day after the transfer, Rosenthal sent Limas a letter offering him a position with R & W. After leaving office, Limas accepted an of-counsel position, and received $100,000 in payments from R & W and Solis' separate business account.

When the defendants in one of Rosenthal's two actions learned Limas was affiliated with R & W, they moved to rescind the transfer order. Limas submitted an affidavit denying any impropriety, and the transferee judge denied the motion. The defendants agreed in 2009 to settle for more than $14 million, and R & W paid Limas $85,000 as his share.

In 2011, a 13–count indictment charged Rosenthal conspired to violate federal statutes in connection with his law practice. His motion, pursuant to 18 U.S.C. § 2515, to suppress evidence procured through Title III intercepts was denied.

In a jury trial that began in early 2013, the Government presented its case over 12 days, with its evidence including, inter alia, recordings of the Title III intercepts, and the testimony of 18 witnesses, including Solis, Limas, and Benavides. Rosenthal presented his defense over three days, including his testifying. The jury returned a guilty verdict on all counts.

Following trial, Rosenthal moved for judgment of acquittal for counts six and 13; the motions were granted at sentencing. Rosenthal was sentenced to 240 months' imprisonment, and assessed restitution, jointly and severally with Limas and Solis, in the approximate amount of $13.3 million.

II.

In not challenging the sufficiency of the evidence, Rosenthal concedes “a rational juror could have found the essential elements of the crimes [of which he was not acquitted] beyond a reasonable doubt”. He instead challenges the denial of his motion to suppress wire communications, intercepted pursuant to 18 U.S.C. §§ 2510 –2520, and all evidence derived from those communications; three jury instructions; and a statement made by the Government during rebuttal closing argument.

In its response brief and at oral argument, the Government maintained plain-error review applies to all of the issues at hand, urging they were not preserved in district court. Rosenthal, who did not file a reply brief, and therefore did not brief the plain-error position pressed by the Government, agreed at oral argument with the Government's plain-error position, except perhaps for the denial of his suppression motion. No authority need be cited for the long-established rule that we, not the parties, determine our standard of review; nevertheless, Rosenthal's concession is revealing.

To preserve in district court a claim for appellate review, a party “must raise objections...