Case: 14-10461 Document: 00513157744 Page: 1 Date Filed: 08/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10461 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, August 7, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
CALEB DEASON,
Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-158
Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
A jury convicted Defendant-Appellant Caleb Deason of: (1) one count of
wire fraud in violation of 18 U.S.C. § 1343 and (2) one count of money
laundering in violation of 18 U.S.C. § 1957. 1 On appeal, Deason challenges his
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1Although § 1957 defines the offense as “[e]ngaging in monetary transactions in
property derived from specified unlawful activity,” it is often referred to as “money
laundering,” see United States v. Fuchs, 467 F.3d 889, 906-07 (5th Cir. 2006), and we will
employ the same shorthand.
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conviction, his sentence, and the court’s restitution order, each of which we
affirm.
I. Facts & Proceedings
Deason worked as a financial planner and independent insurance agent
in Fort Worth, Texas. One of his clients was Daniel Secker. With Deason’s
assistance, Mr. Secker purchased a new life insurance policy issued by
Transamerica Life Insurance Company (“Transamerica”), which took effect in
December 2011. The Transamerica policy was intended to replace Mr. Secker’s
other life insurance policy which was issued by ING. Shortly thereafter, Mr.
Secker died. At the time of his death, both of those policies were still in effect.
Deason contacted Transamerica and told them that he would handle the claim
of the beneficiary, Mr. Secker’s widow, because he (Deason) was close to the
Secker family.
After a series of exchanges over several weeks with the widow and her
sister-in-law, who had been acting as a go-between, and with his Transamerica
contact, Deason eventually sent a wire transfer form to Transamerica that he
had created listing Mrs. Secker as the payee but also listing his Wells Fargo
account number. He received an email saying that the claim had “been
processed and submitted for approval,” and that the “wire payment should be
in the beneficiary’s account by the end of the week.” The next week, he realized
that $1,004,028.41 had been deposited into his own Wells Fargo account.
Three days after the money was deposited in his account, Deason texted Mrs.
Secker’s sister-in-law and explained that Transamerica was still investigating
the claim because Mr. Secker had died during the policy’s contestability
period. 2 Deason then transferred the policy’s proceeds that he had received to
2 Ten days later, Deason sent another email expressing similar hesitations about the
possibility of payment to Mrs. Secker’s sister-in-law.
2
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his savings accounts in three separate amounts. A week or so later, he
withdrew approximately $67,133.00 from one of his savings accounts and used
these funds to obtain a cashier’s check, with which he purchased a used Land
Rover. He then opened two new accounts with Wells Fargo and deposited the
balance remaining from the Transamerica proceeds (approximately
$933,000.00) into the newly-created accounts.
In September 2013, a grand jury charged Deason with the above-said
counts, one for wire fraud and the other for engaging in monetary transactions
in property derived from specified unlawful activity. During the trial, Deason
filed a motion for a judgment of acquittal at the close of the government’s case
and renewed his motion post-verdict, claiming in both that the evidence was
insufficient to support his conviction. The trial court denied both motions.
After a two-day trial, the jury returned guilty verdicts on each count.
The presentence report (“PSR”) recommended that the court increase
Deason’s offense level by two levels pursuant to U.S.S.G. § 3C1.1 for
obstruction of justice because his sworn testimony was inconsistent with the
evidence presented by the government. The PSR also suggested that, pursuant
to U.S.S.G. § 4A1.3(a)(1), an upward departure to his sentence might be
warranted based on reliable information that his criminal history category of
I underrepresented his situation, viz., the likelihood that he would commit
other crimes. Relative to this appeal, Deason challenged the obstruction of
justice enhancement on the ground that his testimony at trial was truthful,
but he indicated that he did not intend to present any further evidence
regarding this objection.
Deason filed written objections, which he renewed during the sentencing
hearing. The trial court overruled his obstruction of justice objection,
explaining that it had reviewed the trial transcript and concluded that Deason
gave several false answers during the trial which were designed to mislead the
3
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jury. The court adopted the factual findings of the PSR, as modified or
supplemented by an addendum, and concluded that Deason’s total offense level
was 28. Combined with his criminal history category of I, the guideline
imprisonment range was 78 to 97 months. After providing Deason and his
counsel an opportunity to speak on his behalf, the court imposed an above-
guidelines sentence of 120 months and ordered Deason to make restitution to
Transamerica in the amount of $99,491.75.
II. Analysis
In his “kitchen sink” appeal, Deason presents roughly a dozen challenges
to his conviction, sentence, and restitution order. We first consider the issues
he preserved, then address the contentions that he raises for the first time on
appeal.
A. Preserved issues
1. Count One (wire fraud): insufficient evidence
Deason claims that the evidence adduced at trial was insufficient to
support his conviction for the conduct charged in Count One because: (1) Count
One charges a wire from a bank in Iowa, and (2) there is insufficient evidence
to support the interstate-commerce nexus. Deason preserved his objection to
the sufficiency of the evidence by filing motions for a judgment of acquittal, so
we review that objection de novo. 3 The standard for such a claim is high: “In
reviewing the sufficiency of the evidence, we view the evidence and the
inferences drawn therefrom in the light most favorable to the verdict, and we
determine whether a rational jury could have found the defendant guilty
beyond a reasonable doubt.” 4
3United States v. Harris, 740 F.3d 956, 962 (5th Cir. 2014).
4 United States v. Brown, 553 F.3d 768, 780 (5th Cir. 2008) (quoting United States v.
Mitchell, 484 F.3d 762, 768 (5th Cir. 2007)) (internal quotation marks omitted).
4
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The elements of wire fraud, as set out in 18 U.S.C. § 1343, are: (1) a
scheme to defraud, (2) the use of wire communications, and (3) a specific intent
to defraud. 5 Deason’s challenge relates to the second element, the use of wire
communications. Claiming that Count One of the indictment charges a wire
from a bank located in Iowa, he contends that the evidence presented at trial
showed a wire to his Wells Fargo account from a bank located in New York,
and insists that the evidence is thus insufficient to convict him for the conduct
charged. Count One charges:
On or about April 5, 2012, in the Fort Worth Division
of the Northern District of Texas and elsewhere, the
defendant, Caleb Deason, . . . caused to be transmitted,
by means of wire and radio communications in
interstate commerce . . . a wire transfer of
approximately $1,004,028.41 from HSBC Bank USA
on behalf of Transamerica Life Insurance Company,
located in Cedar Rapids, Iowa, to the defendant’s
Wells Fargo Bank account, located in the state of
Texas.
We are unpersuaded by Deason’s deliberate misreading of this charge. Count
One does not list the location of HSBC Bank USA as Iowa; rather, it states that
Transamerica is located in Cedar Rapids, Iowa. 6
Relying on the same misreading of Count One, Deason contends that,
because the United States did not adduce evidence that the charged wire was
transmitted from Iowa into another state, his conviction for wire fraud must
be reversed for lack of evidence regarding a nexus to interstate commerce. For
substantially the same reasons expressed in the prior paragraph, we reject
5 United States v. Benns, 740 F.3d 370, 375 (5th Cir. 2014).
6 The jury heard testimony that Transamerica is located in Cedar Rapids, Iowa.
5
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Deason’s claim that there is insufficient evidence of the wire’s nexus to
interstate commerce because Count One charged an “Iowa bank wire.” 7
2. Count Two (money laundering): insufficient evidence
Deason also attacks the sufficiency of the evidence to support his
conviction for the conduct charged in Count Two, claiming that: (1) a cashier’s
check is not expressly defined as a “monetary instrument” in § 1956(c)(5) so his
purchase of the cashier’s check does not support his conviction under § 1957(a);
(2) there is insufficient evidence to show that he “knew” the property with
which he purchased the cashier’s check was criminally-derived; and, (3) there
is no evidentiary support for concluding that his purchase of the cashier’s check
implicated interstate commerce. Deason preserved his sufficiency of the
evidence challenge, so we review these claims de novo. 8 To repeat, our review
is highly deferential to the jury’s verdict. 9
We consider first Deason’s contention that his purchase of the cashier’s
check does not constitute a “monetary transaction” under § 1957(a) because a
cashier’s check is not defined as a “monetary instrument” in 18 U.S.C. §
1956(c)(5). The statutory language of §§ 1956 and 1957, and our precedent,
foreclose his theory. First, a “monetary transaction” is defined in § 1957(f)(1)
as “the deposit, withdrawal, transfer, or exchange, in or affecting interstate or
foreign commerce, of funds or a monetary instrument . . . by, through, or to a
financial institution . . ., including any transaction that would be a financial
transaction under section 1956(c)(4)(B) of this title.” 10 A “financial
transaction” is defined under § 1956(c)(4)(B) as a “transaction involving the
7 To the contrary, the record is replete with evidence concerning the charged wire’s
nexus to interstate commerce.
8 Harris, 740 F.3d at 962.
9 See id.
10 18 U.S.C. § 1957(f)(1) (emphasis supplied).
6
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use of a financial institution which is engaged in, or the activities of which
affect, interstate or foreign commerce in any way or degree.” 11
Deason’s purchase of a cashier’s check constitutes a “monetary
transaction” for the purpose of § 1957(a) in two ways: (1) It constitutes a
“transfer, or exchange . . . of funds . . . by, through, and to a financial
institution,” and (2) it constitutes a “transaction involving the use of a financial
institution . . . which affect[s] interstate . . . commerce.” 12 We are satisfied that
his conduct falls within § 1957(a) even though cashier’s checks are not
expressly included on the list of “monetary instruments” in § 1956(c)(5).
Deason next claims that the trial record lacks the “necessary direct or
circumstantial evidence” to support the jury’s conclusion that he knew the
$67,133.00 he withdrew to purchase the cashier’s check was criminally-
derived. Although he offers no countervailing evidence, claiming that he is
“unable to cite record pages from which requisite evidence is absent,” he
ignores the fact that the jury was free to disregard his testimony as not
credible. He testified that he assumed that the $1,004,028.41 which appeared
in his Wells Fargo account was the result of an unrelated large deal that he
had been working on for some time. But, the jury also heard testimony from a
Transamerica representative that Deason did not have any commissions in the
pipeline that would amount to approximately a million dollars, and that his
total earnings from Transamerica totalled less than $30,000.00 since he had
enrolled as an independent producer for the company in 2006. “The jury is the
final arbiter of the weight of the evidence, and of the credibility of witnesses,”
1118 U.S.C. § 1956(c)(4)(B).
12See, e.g., United States v. Mejia, Nos. 97-50353, 97-50234, 97-50235, 1998 WL
895380, at *6 (9th Cir. Dec. 17, 1998) (per curiam) (“The purchase of the cashier’s check did
have an effect on interstate commerce because the cashier’s check was purchased at a bank
engaged in interstate commerce.”).
7
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so we will not disturb its finding on appeal. 13 The record is replete with
evidence from which a reasonable jury could conclude that Deason knew that
the money in question was criminally-derived.
Finally, Deason claims that the evidence is insufficient to support the
conclusion that his purchase of the cashier’s check had even a “minimal nexus”
to interstate commerce. Our precedent, and that of other circuits, forecloses
his challenge. Like § 1956, the money laundering statute, § 1957 regulates
conduct that, in the aggregate, has a substantial effect on interstate commerce.
And, we have held that the link to interstate commerce need only be slight in
such cases. 14 The evidence adduced at Deason’s trial meets this threshold. The
jury heard testimony that Deason purchased the cashier’s check from a Wells
Fargo branch and that Wells Fargo is a bank that is insured by the FDIC with
branches across the United States. “Proof that a savings institution’s accounts
are federally insured is certainly sufficient to prove that the transaction
involved a financial institution the activities of which affect interstate
commerce under 18 U.S.C. § 1956(c)(4)(B).” 15 The evidence is sufficient to
support the jury’s conclusion that Deason’s purchase of the cashier’s check had
at least a “minimal nexus” to interstate commerce.
13 United States v. Restrepo, 994 F.2d 173, 182 (5th Cir. 1993). We accept “all
credibility choices and reasonable inferences made by the trier of fact that tend to support
the verdict.” United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (quoting
United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997)) (internal quotation mark
omitted).
14 See United States v. Meshack, 225 F.3d 556, 572 (5th Cir. 2000) (citing United States
v. Westbrook, 119 F.3d 1176, 1191 (5th Cir. 1997)) (overruled on other grounds by United
States v. Cotton, 535 U.S. 625 (2002)). Section 1957 requires only that these transactions
have a “de minimis effect” or “minimal impact” on interstate commerce. See United States v.
Benjamin, 252 F.3d 1, 5, 9 (1st Cir. 2001).
15 United States v. Leslie, 103 F.3d 1093, 1103 (2d Cir. 1997).
8
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3. U.S.S.G. § 3C1.1 enhancement
Deason claims that the court erred in applying U.S.S.G. § 3C1.1 to his
sentence because his trial testimony did not support the application of that
section’s enhancement. Deason preserved his objection, so we review the
court’s interpretation and application of the Sentencing Guidelines de novo and
its factual findings for clear error. 16
Section 3C1.1 provides for a two-level increase to a defendant’s offense
level if he (1) “willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the . . . prosecution . . . of
the instant offense of conviction,” and (2) “the obstructive conduct related to . .
. the defendant’s offense of conviction and any relevant conduct . . . .” 17 For the
purpose of this enhancement, a defendant obstructs justice when he perjures
himself. 18 A witness perjures himself when he gives “[1] false testimony
concerning [2] a material matter with [3] the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty memory.” 19
When a defendant objects to a sentence enhancement that results from his trial
testimony, the district court “must review the evidence and make independent
findings necessary to establish a willful impediment to or obstruction of
justice.” 20 In doing so, however, the court need not expressly find that false
testimony concerned a material matter when materiality is obvious. 21 In
16 United States v. Perez-Solis, 709 F.3d 453, 469 (5th Cir. 2013) (footnote omitted);
United States v. Miller, 607 F.3d 144, 148 (5th Cir. 2010) (“For an obstruction of justice
enhancement, we likewise review the district court’s factual findings for clear error.”).
17 U.S.S.G. § 3C1.1.
18 Perez-Solis, 709 F.3d at 469 (footnote omitted).
19 Id. (alterations in original) (quoting United States v. Dunnigan, 507 U.S. 87, 94
(1993)) (internal quotation mark omitted).
20 Id. (quoting Dunnigan, 507 U.S. at 95).
21 Id. at 470.
9
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making its factual findings in support of the application of § 3C1.1, the court
may adopt adequate findings in a PSR. 22
As noted, Deason filed a written objection to the § 3C1.1 enhancement,
and he renewed his objection during the sentencing hearing. The district court
explained why it thought the enhancement was proper:
I heard the defendant’s testimony, and I didn’t hear
too much truthfulness come from the stand while the
defendant was on the stand. If you were to go through
and take up each answer that was a false answer, you
would – you would spend a lot of time doing it. [Cites
examples of false testimony] . . . . I’m not going to take
the time to go through all of the false answers he gave.
Every one he gave – and the probation officer has
correctly indicated in paragraph 19 of the presentence
report the different place in the record where he gave
false testimony . . . . In each instance, it was material
to the issues that were being decided by the jury . . . .
We agree with the district court’s summation. Apart from Deason’s contention
that his own juried testimony, in context, does not support the enhancement,
he offers no evidence to refute the factual findings contained in the PSR which
laid out the multiple instances in which he perjured himself during trial. We
therefore affirm the district court’s application of § 3C1.1 to his sentence.
4. Substantive reasonableness
Deason also challenges the above-guidelines sentence imposed by the
court as substantively unreasonable, claiming that the court: (1) failed
properly to consider and weigh the § 3553(a) factors, and (2) improperly relied
on uncharged conduct recounted in the PSR. Deason objected to the
substantive reasonableness of the sentence following its imposition, so we
review the “substantive reasonableness of the sentence imposed under an
22 Id.
10
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abuse-of-discretion standard.” 23 When reviewing an above-guidelines sentence
for substantive unreasonableness, (1) we consider “the totality of the
circumstances, including the extent of any variance from the Guidelines
range,” and (2) we accord deference to the district court’s decision that the
§ 3553(a) factors support the sentence. 24
On appeal, Deason contends that the trial court erred in failing to
consider mitigating factors, e.g., the letters of support submitted by his friends
and family, and that, as his counsel put it, “he’s not really different than most
of the white-collar fraud defendants . . . across the nation.” To the contrary,
the district court thoroughly considered the § 3553(a) factors and
acknowledged the letters of support:
One of the factors are the nature and circumstances of
the offense. And, of course, the nature and
circumstances of the offense is that he tried to steal a
million dollars from a widow, by way of her insurance
benefits that were due to her through her purchase of
an insurance policy through the services of the
defendant . . . . Well, from what I heard, he’s amoral,
period . . . . He’s a good flimflam man, as evidenced by
all these letters I’ve received from people that say he’s
– he is a good person, and I suppose that’s typical of a
good con man . . . . When I consider all of the factors
the Court should consider in sentencing, to protect the
public from further crimes of the defendant, he simply
doesn’t know how to function without swindling
somebody, at least the indication so far is, and I don’t
know that there’s any cure for that, other than
confinement.
23 United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)) (internal quotation mark omitted).
24 United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (internal quotation
marks omitted).
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We are satisfied that the sentence imposed is substantively reasonable.
Despite Deason’s contention that the trial court failed to consider the § 3553(a)
factors thoroughly, the record compels the opposite conclusion. That court
explained at length its reasons for imposing an above-guidelines sentence.
Deason’s claim on appeal amounts to nothing more than a disagreement with
the court’s weighing of the § 3553(a) factors, so we conclude that the court did
not abuse its discretion. Our precedent makes clear that we do not reweigh
factors or reexamine their relative import; neither do we reverse a sentencing
court on the basis that, in our estimation, a different sentence would be
proper. 25
Further, Deason’s contention that the sentencing court improperly relied
on uncharged conduct is without any basis in the law. Our precedent holds
that, at sentencing, the court is not precluded from considering uncharged
conduct incorporated into the PSR and its guidelines calculation. 26 And,
although Deason does not clearly articulate the extent of the variance as a
basis for reversal, we note sua sponte that the instant variance is not
significant when compared to much greater variances we have affirmed. 27
B. Issues raised for first time on appeal
1. Count Two (money laundering): sufficiency of indictment
Deason claims that Count Two of the indictment is defective because it
failed to charge that he knew the transaction involved criminally-derived
property, asserting that this prejudiced his defense. Specifically, he contends
that the word “knowingly,” as used in Count Two, applies only to his efforts to
engage in a monetary transaction, and not to the subsequent qualifier “in
25 See id.
26 See United States v. Newsom, 508 F.3d 731, 735 (5th Cir. 2007).
27 See Brantley, 537 F.3d at 348, 350 (upholding 253% variance); United States v.
Jones, 444 F.3d 430, 441-42 (5th Cir. 2006) (more than double variance).
12
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criminally derived property of a value greater than $10,000.” Deason failed to
object in the district court, so we review the sufficiency of the indictment for
plain error. 28
“To be sufficient, an indictment must conform to minimal constitutional
standards, standards that are met where the indictment alleges every element
of the crime charged and in such a way as to enable the accused to prepare his
defense . . . .” 29 Count Two charges:
On or about April 24, 2012, in the Fort Worth Division
of the Northern District of Texas, Caleb Deason, the
defendant, did knowingly engage and attempt to
engage in a monetary transaction, by, through, or to a
financial institution, affecting interstate or foreign
commerce, in criminally derived property of a value
greater than $10,000, that is the purchase of a
cashier’s check in the amount of approximately
$67,133, such property having been derived from a
specified unlawful activity, that is, Wire Fraud, in
violation of 18 U.S.C. § 1343.
Count Two essentially tracks the language of 18 U.S.C. § 1957(a), which is the
statute under which Deason was convicted: “Whoever . . . knowingly engages
or attempts to engage in a monetary transaction in criminally derived property
of a value greater than $10,000 and is derived from specified unlawful activity
shall be punished. . . .” 30
Deason’s challenge to the sufficiency of the indictment is grounded in a
deliberate misreading of Count Two and § 1957(a). “As a matter of ordinary
28 United States v. Hoover, 467 F.3d 496, 498 (5th Cir. 2006). Plain error review
involves four prongs: (1) There must be an error or defect; (2) the legal error must be clear or
obvious; (3) the error must have affected the appellant’s substantial rights; and, (4) if the first
three prongs are satisfied, the appellate court has the discretion to remedy the error if it
seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett
v. United States, 556 U.S. 129, 135 (2009).
29 United States v. Partida, 385 F.3d 546, 554 (5th Cir. 2004).
30 18 U.S.C. § 1957(a).
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English grammar, it seems natural to read [a] statute’s word ‘knowingly’ as
applying to all the subsequently listed elements of the crime.” 31 This is
consistent with the manner in which courts usually interpret criminal
statutes, i.e., “courts ordinarily read a phrase in a criminal statute that
introduces the elements of a crime with the word ‘knowingly’ as applying that
word to each element.” 32 Moreover, even if we assume arguendo that Deason
was unaware that “knowingly” modifies criminally-derived property, any
putative prejudice is belied by the fact that he defended himself at trial by
claiming that he did not know the funds in his bank account were criminally
derived. Several months prior to trial, he filed a proposed jury charge listing
the “knowledge” element as it applied to the criminally-derived property
element. For him to contend on appeal that the indictment is insufficient
because he had no idea that “knowingly” applies to “criminally derived
property” stretches his credulity beyond the breaking point. We are satisfied
that Count Two of the indictment is constitutionally sufficient.
2. Count One (wire fraud): false evidence and improper venue
Deason presents a series of related challenges to his conviction for wire
fraud that relies on what he describes as “newly discovered and available
evidence.” This evidence comprises only his own affidavit that relates to one
exchange between an unnamed “individual working on my behalf” and a Wells
Fargo customer service representative. The Wells Fargo employee purportedly
stated to the unnamed individual that Wells Fargo has only “one wire room,
where all incoming wires are received and posted . . . [that is] located [in] . . .
San Francisco, California.” Relying solely on his own affidavit, Deason
contends that (1) the government violated his right to due process by
31 Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009).
32 Id. at 652.
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knowingly presenting false testimony about the wire transfer, so the court
should order a new trial; and, (2) his conviction should be vacated based on
improper venue. Because he contests venue for the first time on appeal, his
challenge is waived. 33 And, we review his claim that the government
knowingly presented false testimony for plain error only because he did not
move for a new trial on this basis or otherwise alert the district court to his
objection. 34
To establish a due process violation based on the government’s use of
false or misleading testimony, a petitioner must show that “(1) the statements
in question are shown to be false; (2) the prosecution knew they were false; and
(3) the statements were material.” 35 We note at the outset that Deason’s
affidavit – the only “evidence” he submits in support of his claim that the
government knowingly presented false testimony – is inadmissible hearsay
and cannot be used to obtain a new trial. 36 But, even if we were to assume the
veracity of the hearsay statements contained in his affidavit and their
33 Deason contends that he preserved his venue objection by filing a motion to acquit
under Rule 29(a) and (c). Appellant’s Brief at 53. We disagree. See United States v.
Rodriguez-Lopez, 756 F.3d 422, 430 (5th Cir. 2014) (“A defendant waives his right to contest
venue on appeal, however, when his motion for acquittal [at the close of the government’s
evidence] fails to put the court and the United States on notice of the challenge to venue.”).
Deason moved for acquittal at the close of the government’s presentation of evidence “on the
grounds that the evidence is insufficient to sustain a conviction at this time.” As he did not
articulate any challenge to venue, his challenge is waived. See id.; United States v. Carbajal,
290 F.3d 277, 288 n.19 (5th Cir. 2002).
34 See United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011); United States v.
Caballero, 277 F.3d 1235, 1243-44 (10th Cir. 2002). By neglecting to file a motion for a new
trial on the basis of the newly-discovered evidence, Deason failed to provide the district court
an opportunity to correct the now-alleged error. United States v. Nixon, 918 F.2d 895, 905
(11th Cir. 1990); cf. United States v. Blackthorne, No. 00-51256, 2002 WL 971621, at *15 (5th
Cir. May 3, 2002) (declining to resolve whether plain error applies when a defendant fails to
raise a Napue objection in the district court).
35 United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997).
36 See United States v. Anderson, 755 F.3d 782, 800 (5th Cir. 2014); United States v.
Fleming, 540 F. App’x 344, 346 (5th Cir. 2013) (per curiam) (defendant’s affidavit containing
hearsay insufficient evidence to support a motion for a new trial); United States v. Neuman,
505 F. App’x 308, 309 (5th Cir. 2013) (same).
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admissibility, we would conclude that he has failed to make out any due
process violation. The evidence adduced at trial included (1) a copy of the wire
transfer form authorizing Transamerica to wire the funds to Deason’s Wells
Fargo account and (2) his bank account statement reflecting a wire transfer of
$1,004,028.41 from HSBC Bank USA to his Wells Fargo account. Even if
Deason’s unverified and inadmissible statement were true, it would create, at
most a conflict with the evidence adduced at trial concerning Wells Fargo’s
wire procedures. It would not establish that the evidence and testimony
concerning the wire at issue are “actually false.” 37 Deason has failed to make
out a due process violation on the basis of the information contained in his
affidavit.
3. Counts One and Two: double jeopardy
Deason contends further that his conviction and sentence for both wire
fraud and money laundering violate the Fifth Amendment’s Double Jeopardy
Clause. Specifically, he claims that, because he was convicted of knowingly
purchasing a cashier’s check with proceeds from a wire fraud crime, the
§ 1957(a) charge incorporated all of the essential elements of his wire fraud
offense under § 1343, thereby merging the two offenses under Blockburger v.
United States. He failed to raise this claim before the district court, so we
review it for plain error only. 38
The Double Jeopardy Clause prohibits multiple punishments for the
same offense. 39 “When a defendant challenges multiple punishments for the
same conduct—rather than multiple prosecutions—our double jeopardy
analysis turns on whether Congress has authorized the result at issue.” 40
37 See Kimmel v. Quarterman, 199 F. App’x 338, 344-45 (5th Cir. 2006) (citing United
States v. Wall, 389 F.3d 457, 473 (5th Cir. 2004)).
38 United States v. Odutayo, 406 F.3d 386, 392 (5th Cir. 2005).
39 United States v. McRae, 702 F.3d 806, 839 (5th Cir. 2012).
40 Id. (citation and internal quotation mark omitted).
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When, in one prosecution, a defendant is convicted of multiple counts
stemming from the same criminal conduct, our review is limited to whether
Congress intended multiple convictions and sentences under the statutes. 41
We discern the intent of Congress by parsing the statutory language and
reviewing the legislative history. 42
Section 1957, which was enacted as part of the Money Laundering
Control Act of 1986, forbids engaging in monetary transactions involving
criminally-derived property. The essential elements are: (1) the defendant
engages or attempts to engage (2) in a monetary transaction (3) in criminally-
derived property (4) knowing that the property is derived from unlawful
activity, and (5) the property is derived from “specified unlawful activity,”
which is defined in 18 U.S.C. § 1956(c)(7). 43 Here, the specified unlawful
activity is wire fraud, which is punishable under 18 U.S.C. § 1343.
The government had to prove the essential elements of wire fraud to
establish a violation of 18 U.S.C. § 1957. Thus, we cannot rule that each
statutory provision “requires proof of a fact that the other does not.” 44 Contrary
to Deason’s contention, the Blockburger test, however, is not dispositive; it is
solely a rule of statutory construction. “Insofar as the question is one of
legislative intent, the Blockburger presumption . . . yield[s] to a plainly
expressed contrary view on the part of Congress.” 45 Our review of the statute’s
text and legislative history reflects that Congress intended that the conduct
defined in 18 U.S.C. § 1957 should be punished as a separate offense, in
addition to, and not as a substitute for, the underlying specified unlawful
41See Garrett v. United States, 471 U.S. 773, 779 (1985).
42Id.
43 18 U.S.C. § 1957.
44 United States v. Lovett, 964 F.2d 1029, 1041-42 (10th Cir. 1992) (internal quotation
mark omitted).
45 Garrett, 471 U.S. at 779.
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activity. 46 Deason’s convictions under 18 U.S.C. § 1343 and § 1957 do not
violate the Double Jeopardy Clause.
4. Improper questioning
Deason claims that the district court’s questioning during the trial
violated his Fifth and Sixth Amendment rights to a fair trial by an impartial
jury. He contends that the court posed pointed, attacking questions
undermining his credibility and chosen defense strategy. Deason accepted the
court’s proposed curative instruction, so he failed to preserve his objection to
the court’s questioning and plain error review applies. 47
Federal Rule of Evidence 614 permits a trial judge to call or examine a
witness. 48 “A trial judge has wide discretion over the ‘tone and tempo’ of a trial
and may elicit further information from a witness if he believes it would benefit
the jury,” but its efforts to move the trial along may not interfere with its “strict
impartiality.” 49 We have stressed that “[o]ur review of the trial court’s actions
must be based on the entire trial record” and that we will conclude that a
46 See THE MONEY LAUNDERING CRIMES ACT OF 1986, S. REP. NO. 99-433, at 4 (1986)
(noting the importance of “enacting a new Federal offense against money laundering”)
(emphasis supplied); see also United States v. Kirkland, Nos. 93-2231, 93-2313, 1994 WL
454864, at *5 (6th Cir. Aug. 22, 1994) (per curiam) (“Logically this must be true or else § 1957
would serve only as an alternative charge for each ‘specified unlawful activity’ listed in the
statute and not a separate criminal offense.”); Lovett, 964 F.2d at 1042-43.
47 Deason contends that he preserved this claim by means of objection, but our review
of the record indicates that he failed to preserve the error. Although his counsel objected to
the trial court’s questioning, his counsel subsequently proposed that the court take a
“remedial measure, which would be to instruct the jury that you did not mean to communicate
any partiality or belief as to the truth or nontruth of Deason’s testimony.” The trial court
agreed and so instructed the jury. As such, Deason failed to preserve his objection to the
district court’s questioning. See United States v. Potts, 644 F.3d 233, 236 (5th Cir. 2011)
(“[The defendant] accepted the court’s curative instruction without objection, thus failing to
preserve error.”).
48 Fed. R. Evid. 614.
49 United States v. Saenz, 134 F.3d 697, 701-02 (5th Cir. 1998).
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court’s questioning warrants reversal only when the “cumulative effect” is
substantial and prejudices the defendant. 50
Reviewing here for plain error, we conclude that, when analyzed in the
context of the entire record, the cumulative effect of the trial court’s
questioning did not prejudice Deason. We acknowledge that the court did
engage in several salty exchanges with both sides during the course of the trial,
but we perceive no reversible plain error. The court’s questioning concerning
the timing of the $1,004,028.41 transfer to Deason’s Wells Fargo account in
relation to the text message he sent to Mrs. Secker’s sister-in-law expressing
doubt that the claim would ever be paid, as well as his intent in sending the
text message, is relevant to the issues presented by his “mistake” defense.
And, because Deason referred to several text messages and emails throughout
the course of his testimony, it was not unreasonable for the trial court to seek
clarification of Deason’s somewhat circuitous testimony to aid the jury. We
conclude that the trial court did not plainly err.
5. Count One (wire fraud): constructive amendment
Deason contends that Count One of his indictment was constructively
amended, claiming that his conviction relied on evidence that did not support
his transmission of the charged wire. This claim returns to the “Iowa bank
wire” theory he raised in his challenge to the sufficiency of the evidence related
to Count One: “[I]t is impossible that the jury properly convicted [him] for the
indicted act of causing the transmission of the Iowa bank wire listed in Count
One.” Deason failed to object to the alleged constructive amendment, so we
review for plain error. 51
50 Id. at 702.
51 United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010).
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“A constructive amendment occurs when it permits the defendant to be
convicted upon a factual basis that effectively modifies an essential element of
the offense charged or permits the government to convict the defendant on a
materially different theory or set of facts than that with which she was
charged.” 52 Deason has failed to show any constructive amendment, let alone
that the district court plainly erred. As explained earlier, Count One does not
charge an “Iowa bank wire,” and, the jury charge essentially tracks the
language of Count One. 53 And finally, although not clearly articulated in
Deason’s brief, we reject any (assumed) challenge to the government’s
presentation of Rule 404(b) evidence as constructively amending the
indictment. The district court instructed the jurors that they could consider
the Rule 404(b) evidence for limited purposes only. We assume that a jury
follows the trial court’s instructions unless “there is an overwhelming
probability that the jury [was] unable to [do so] and there is a strong
probability that the effect is devastating.” 54 Deason does not contend that the
jury did not follow its instructions. We conclude that he has failed to show that
Count One of the indictment was constructively amended.
6. Ineffective assistance of counsel
Deason claims that his trial counsel was constitutionally deficient for
failing to challenge Count One on the theory that it charged an Iowa bank wire
and for failing to obtain admissible evidence establishing that Wells Fargo had
“one wire room” as described in Deason’s post-conviction affidavit.
52 United States v. Thompson, 647 F.3d 180, 184 (5th Cir. 2011) (citation and internal
quotation marks omitted).
53 See, e.g., United States v. Seher, 562 F.3d 1344, 1363 (11th Cir. 2009) (rejecting a
defendant’s constructive amendment claim when the “jury charge merely tracked the
language of [the statute]”).
54 United States v. Fortenberry, 350 F. App’x 906, 910 (5th Cir. 2009) (quoting United
States v. Tomblin, 46 F.3d 1369, 1390 (5th Cir. 1995)) (internal quotation mark omitted).
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Generally, claims of ineffective assistance of counsel “cannot be resolved
on direct appeal when [they have] not been raised before the district court since
no opportunity existed to develop the record on the merits of the allegations.” 55
The Supreme Court has emphasized that a § 2255 habeas corpus motion is the
preferred vehicle for raising claims of ineffective assistance of counsel: “When
an ineffective-assistance claim is brought on direct appeal, appellate counsel
and the court must proceed on a trial record not developed precisely for the
object of litigating or preserving the claim and thus often incomplete or
inadequate for this purpose.” 56 Here, the record is not sufficiently developed
concerning Deason’s allegations of his trial counsel’s deficient performance.
We decline to review his ineffective-assistance claim – without prejudice,
however, to his right to raise it in a collateral attack on his sentence. 57
7. Restitution order
The trial court ordered Deason to make full restitution to Transamerica
in the amount of $99,491.75. For the first time on appeal, he asserts that the
court’s restitution order violates his Sixth Amendment rights because it is
based on judicial findings of fact. We have reviewed this claim for plain error,
and we conclude there is none. Deason’s theory is foreclosed by numerous
decisions of this court holding that “judicial fact-finding supporting restitution
orders does not violate the Sixth Amendment.” 58
III. Conclusion
Deason’s conviction, sentence, and restitution order are AFFIRMED.
55 United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (citation and internal
quotation mark omitted).
56 Massaro v. United States, 538 U.S. 500, 504-05 (2003).
57 See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
58 United States v. Ingles, 445 F.3d 830, 839 (5th Cir. 2006) (footnote and internal
quotation marks omitted); see, e.g., United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005)
(“We agree with our sister Circuits, who have uniformly held that judicial fact-finding
supporting restitution orders does not violate the Sixth Amendment.”).
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