REVISED JULY 13, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 08-50275 May 5, 2010
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALVIN W. BYRD, JR., also known as Alvin Byrd,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:07-CR-128-ALL
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Alvin W. Byrd, Jr., was convicted by a jury of one count of wire fraud, one
count of interstate transportation of stolen property, and five counts of money
laundering; he received concurrent sentences of 150 months for the wire fraud
and money laundering counts and a concurrent 120-month sentence for the
interstate transportation offense. Byrd was also ordered to pay a $100,000 fine
and $271,403.33 in restitution and was ordered to forfeit a Hummer H2,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-50275
$82,005.51 from an A.G. Edwards account, $5003.53 from a Fidelity account, and
a money judgment of $192,886.87. He now appeals, pro se, his convictions and
the sentences.
As an initial matter, Byrd moves to strike the Government’s appellate
brief because Byrd objected to the Government’s second motion for an extension
of time to file the brief. He also maintains that in the absence of the appellee’s
brief, he is entitled to an acquittal on all counts and immediate release. This
motion is denied.
On appeal, Byrd argues that the evidence is insufficient to support his
convictions. With respect to the wire fraud claim, he maintains that the
testimony presented at trial establishes that he lacked any intent to defraud the
victim, Kyle Hood, and that there was no evidence establishing that Hood or his
company, Desktop Properties, LLC, suffered a loss. See 18 U.S.C. § 1343; United
States v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009). Byrd maintains that
there was no evidence of the interstate element because there was no evidence
that he knew an e-mail sent to an individual in the same city would cross state
lines. Furthermore, he contends that the e-mail was not material because the
parties had previously orally agreed to the terms set forth in the e-mail and
because the agreement could have been completed without the use of an e-mail.
Byrd’s contentions rely on the truth of his own trial testimony; however,
the jury has the duty to weigh the evidence and assess witness credibility.
United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001). The jury heard
evidence from the prosecution witnesses that Byrd had represented himself as
a successful real estate investor and had encouraged Hood to engage in a
transfer of funds outside of the escrow account by sending him an e-mail
agreement. Byrd had written Hood a personal check on a closed account but
stated in a written agreement that Hood could negotiate the check if Byrd failed
to wire the necessary funds into the escrow by the time of closing. Witnesses
testified that Byrd had attempted to obtain mortgages on Hood’s property by
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falsely stating that he had a clear title to it. Considering the reasonable
inferences drawn from the evidence in the light most favorable to the verdict, a
rational trier of fact could have found that the evidence established the elements
of the offenses beyond a reasonable doubt. See United States v. Lopez-Moreno,
420 F.3d 420, 437-38 (5th Cir. 2005); United States v. Richards, 204 F.3d 177,
207 (5th Cir. 2000), overruled on other grounds by United States v. Cotton, 535
U.S. 625 (2002).
Byrd’s challenges to his interstate transportation and money laundering
convictions arise from his assertion that he lacked intent to defraud and that
thus he did not know that the funds were the proceeds of fraudulent activities.
See United States v. Griffin, 324 F.3d 330, 351 (5th Cir. 2003); United States v.
Onyiego, 286 F.3d 249, 253 (5th Cir. 2002). As the evidence was sufficient for a
reasonable juror to find that Byrd knowingly engaged in the fraudulent attempts
to engage in a real estate transaction, the jury could thus conclude that his
procurement of numerous cashier’s checks constituted an attempt to conceal the
proceeds of his activities and that Byrd had sent some of these proceeds across
state lines. See Griffin, 324 F.3d at 351; Onyiego, 286 F.3d at 253.
In conjunction with his allegations of innocence, Byrd contends that the
district court lacked jurisdiction over his criminal case because he lacked any
intent to send an e-mail across state lines. The interstate element is itself “‘the
linchpin for federal jurisdiction.’” See Richards, 204 F.3d at 207-08 (citation
omitted). Byrd’s challenge to his lack of intent is in fact a challenge to the
sufficiency of the evidence. Byrd also contends that his indictment was
fundamentally flawed because the allegations included were “implausible and
impractical.” The superseding indictment in the instant case was proper
because it set forth the elements of the offenses, provided Byrd with information
about the charges against him, and provided sufficient details to bar future
prosecutions for the same conduct. See United States v. McGilberry, 480 F.3d
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326, 329 (5th Cir. 2007). Byrd’s dispute with the factual allegations in the
indictment does not establish that the indictment was fundamentally flawed.
Byrd contends that his convictions should be overturned because FBI
agents conducted an illegal search of his San Antonio hotel room and an illegal
seizure of his personal property. Because he did not object to the legality of the
search prior to trial, he may not raise the issue on appeal. See FED. R. CRIM.
P. 12(b)(3)(C), (e); United States v. Chavez-Valencia, 116 F.3d 127, 129-30 (5th
Cir. 1997).
According to Byrd, the prosecutor committed various forms of misconduct.
He maintains that the prosecutor knowingly presented perjured testimony at
trial because there was no documentary evidence to support Hood’s claims of
loss. Byrd has not shown that Hood’s testimony was false or that the
Government knew of the falsity of the testimony. See United States v. O’Keefe,
128 F.3d 885, 893-94 (5th Cir. 1997). Byrd’s allegation that the United States
Attorney engaged in selective prosecution fails because the Government has
broad discretion in enforcing criminal laws and because there is no authority for
Byrd’s supposition that the prosecutor was required to believe Byrd’s allegations
of innocence. See United States v. Armstrong, 517 U.S. 456, 464 (1996). Byrd’s
conclusory assertion that the prosecutor showed bias by acting in a friendly
manner toward Hood fails, as he has pointed to nothing in the record to indicate
that the jury was affected by these actions.
In addition, Byrd contends that the Government presented various pieces
of evidence at trial that were irrelevant or which reflected the prosecutor’s
biases. Because he did not object to the admission of any of this evidence, we
review for plain error. See United States v. Rogers, 126 F.3d 655, 657 (5th Cir.
1997). Byrd has failed to show that the introduction of the majority of the
evidence, much of which directly related to the Government’s theory of the case,
constituted error, much less a clear or obvious error. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009); FED. R. EVID. 401, 402.
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No. 08-50275
Byrd next asserts that the jury was incompetent to hear his case. He
maintains that the panel consisted of individuals who lacked the educational and
economic expertise to understand the complex financial transactions in which
Byrd engaged or Hood’s motivation to use the federal courts as a collection
“scam” to defraud Byrd out of his money and property. There is no indication
that Byrd was deprived of a jury composed of a fair cross-section of the
community. See Duren v. Missouri, 439 U.S. 357, 364 (1979). To the extent that
Byrd is arguing that the jurors’ limitations prevented them from believing Byrd,
the jury’s credibility finding was within its functions and did not constitute a
ground for disqualifying the jurors. See Delgado, 256 F.3d at 273-74. Byrd
asserts that the jury panel was irreparably tainted by “racially inflammatory
outbursts” from a venire person; however, he provides no record support that
this ever occurred. Our examination of the record shows that, although one
venire person expressed his belief that Byrd would not be in court unless he had
done something wrong, he was stricken for cause, and there is no indication that
his statements caused the selected jurors to predetermine Byrd’s guilt without
application of the pertinent law to the facts. See United States v. Flores, 63 F.3d
1342, 1357 (5th Cir. 1995) (pretrial publicity).
Byrd maintains that the district court and the magistrate judges in his
case engaged in a pattern of judicial bias. His complaints about adverse judicial
rulings are not sufficient to require recusal. See Liteky v. United States, 510 U.S.
540, 555 (1994). The court’s refusal to pre-judge the merits of Byrd’s case at a
pretrial hearing and insistence on holding a trial does not reflect a deep-seated
antagonism against Byrd. See Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir.
2003). The court’s insistence during trial that Byrd answer a question during
cross-examination, when read in the context of Byrd’s evasiveness, did not
constitute an intervention that would predispose the jury to find Byrd guilty;
instead, the court was controlling witness interrogation. See United States v.
Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994); FED. R. EVID. 611(a). The court’s
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statements at sentencing about the likelihood that the jury’s verdict could be
incorrect and about Byrd’s work as a minister, when read in context, involved
a disagreement about what was proven at trial, which does not constitute an
external bias. See Liteky, 510 U.S. at 555.
With respect to the order of forfeiture as encapsulated in the final
judgment, Byrd contends that his conduct was not illegal and thus no forfeitable
assets existed. Under 18 U.S.C. § 981(a)(1)(C), a defendant convicted of wire
fraud may be required to forfeit “[a]ny property, real or personal which
constitutes or is derived from proceeds traceable” to the violation of 18 U.S.C. §
1343. The evidence at trial established that the assets and money ordered
forfeited by the district court were in fact attributable to Byrd’s fraudulent
actions in inducing Hood to write him a check for $192,886.87.
In conjunction with his sentencing proceedings, Byrd asserts that his
sentence was illegally entered because he was actually innocent. If his
arguments are liberally construed, Byrd also contends that the district court’s
imposition of upward departures and an upward variance were procedurally
improper because the district court failed to properly calculate the applicable
guidelines range or sentenced him based on “clearly erroneous facts.” Gall v.
United States, 552 U.S. 38, 51 (2007). Because there was sufficient evidence to
support Byrd’s convictions, the district court could impose sentences against him
and could rely upon the conclusions necessary from the jury’s verdict to impose
the sentence. Byrd’s contention that the district court erred in calculating the
pertinent loss amount because there was no evidence corroborating the
allegations of loss and attempted loss set forth in the presentence report (PSR) is
without merit, as the PSR bore sufficient indicia of reliability and Byrd failed to
present evidence to establish that the information included in the PSR was
“materially untrue, inaccurate or unreliable.” United States v. Parker, 133 F.3d
322, 329 (5th Cir. 1998); see also United States v. Ollison, 555 F.3d 152, 164 (5th
Cir. 2009). The court’s oral and written reasons for Byrd’s sentence show that
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No. 08-50275
it was concerned with the nature of Byrd’s crimes, the similarity of the instant
offense to Byrd’s prior charged conduct, the need to protect the public, and the
seriousness of the offense. All of these are proper factors to consider when
imposing a sentence. See 18 U.S.C. § 3553(a).
In sum, the district court did not abuse its discretion at sentencing. The
sentence imposed “was reasonable under the totality of the relevant statutory
factors.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (quotation
marks omitted); see also United States v. Smith, 417 F.3d 483, 492 & n.40 (5th
Cir. 2005) (upholding departure of 120 months from a guidelines maximum of
41 months). The judgment of the district court should be affirmed.
In his record excerpts and reply brief, Byrd raises claims of ineffective
assistance of his trial counsel. The purpose of the record excerpts is to provide
record documents to assist this court in determining whether oral argument is
necessary. 5TH CIR. R. 30.1.1. Byrd is not authorized to submit new arguments
through documents that were not presented to the district court. Moreover, we
will not consider arguments raised for the first time in a reply brief. United
States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989). To the extent Byrd has
raised claims of ineffective assistance of counsel, the record is insufficiently
developed to allow consideration at this time of such claims. See United States
v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
AFFIRMED; MOTION TO STRIKE APPELLEE’S BRIEF AND FOR
ACQUITTAL DENIED.
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