REVISED July 10, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 07-20899 June 10, 2009
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
BARTHOLOMEW STEPHENS; STEVEN ANYANWU STEPHENS
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Texas
Before KING, STEWART, and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Brothers Bartholomew Stephens and Steven Stephens1 were convicted of
aggravated identity theft, aiding and abetting wire fraud, and conspiracy to
commit identity theft and wire fraud. Each defendant challenges his convictions
on several grounds. We AFFIRM.
1
Because of their common last name, we refer to each defendant by his first name for
the sake of clarity.
No. 07-20899
BACKGROUND
The evidence presented by the Government at trial established that, in the
wake of Hurricane Katrina, Steven registered a website:
www.salvationarmyonline.org. The website was patterned after the official
Salvation Army website and claimed to be the website of the organization’s
international headquarters. A donation link was created on the website,
through which people could contribute money into PayPal accounts created in
the names and identification numbers of individuals other than Steven or
Bartholomew but linked to the brothers’ bank accounts. Donations were made,
and the brothers profited. Eventually, the FBI learned of the suspect Salvation
Army site and obtained a search warrant for an apartment the brothers shared
with another individual. The FBI executed the warrant and recovered a trove
of incriminating evidence regarding each defendant.
Steven and Bartholomew were indicted in July 2006 for conspiracy to
commit wire fraud and aggravated identity theft (count one), aiding and abetting
wire fraud (counts two through seven), and aggravated identity theft (counts
eight and nine). After a joint trial, the jury convicted both men on all counts.
The district court sentenced Steven to 111 months imprisonment, Bartholomew
to 105 months imprisonment, and both defendants to pay a $900 assessment and
three years supervised release.
DISCUSSION
Sufficiency of the Evidence
1.
Bartholomew challenges the sufficiency of the evidence supporting the jury
verdict convicting him on all counts of conspiracy, wire fraud, and aggravated
identity theft.2 “It is by now well-settled that a defendant seeking reversal on
2
Steven filed a motion to adopt all of his co-defendant’s arguments pursuant to Federal
Rule of Appellate Procedure 28(I). “However, ‘[s]ufficiency of the evidence challenges are
2
No. 07-20899
the basis of insufficient evidence swims upstream.” United States v. Mulderig,
120 F.3d 534, 546 (5th Cir. 1997). The standard of review is whether, after
viewing all of the evidence and inferences that may be drawn therefrom in the
light most favorable to the verdict, any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. United States v.
Holmes, 406 F.3d 337, 351 (5th Cir. 2005). However, if the evidence, viewed in
the light most favorable to the verdict, points equally to a theory of innocence
and guilt, we will reverse a conviction based on circumstantial evidence. Id.
2.
To convict Bartholomew of the conspiracy charge under 18 U.S.C. § 371,
the Government was required to prove three elements beyond a reasonable
doubt: (1) an agreement between Bartholomew and one or more persons (2) to
commit the crimes of wire fraud and aggravated identity theft, and (3) an overt
act by one of the conspirators in furtherance of that agreement. United States
v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006). The Government must also
demonstrate that Bartholomew acted with the intent to defraud. Id. (citing
United States v. Garza, 429 F.3d 165, 168-69 (5th Cir. 2005)). The Government
is not required to provide direct evidence of the conspiracy. Holmes, 406 F.3d at
351. Associating with criminal conspirators is insufficient, but circumstantial
evidence is enough to prove an agreement, and minor participation may support
conviction. United State v. Bieganowski, 313 F.3d 264, 276 (5th Cir. 2002). “An
agreement may be inferred from concert of action, voluntary participation may
be inferred from a collection of circumstances, and knowledge may be inferred
from surrounding circumstances.” Id. (internal quotation marks and citations
omitted).
fact-specific, so we will not allow the appellants to adopt those arguments.’” United States v.
Solis, 299 F.3d 420, 444 n.70 (5th Cir. 2002). Therefore we consider only Bartholomew’s
challenge to the sufficiency of the evidence supporting conviction.
3
No. 07-20899
Bartholomew’s conviction for aiding and abetting wire fraud in violation
of 18 U.S.C. §§ 2 and 1343 required the Government to “prove (1) a scheme or
artifice to defraud and (2) the use of wire communications in furtherance of the
fraudulent scheme.” United States v. Rajwani, 476 F.3d 243, 247 (5th Cir. 2007),
modified on other grounds, 479 F.3d 904 (5th Cir. 2007). To prove a scheme to
defraud, the Government must show fraudulent activity and that the defendant
had a conscious, knowing intent to defraud. Id.
Finally, to convict Bartholomew of aggravated identity theft, the
Government was required to prove that Bartholomew (1) knowingly used (2) the
“means of identification” of another person (3) without lawful authority (4)
during and in relation to a violation of wire fraud. § 1028A(a)(1). The phrase
“means of identification” includes another person’s name or social security
number. Id.; § 1028(d)(7)(A). Recently in Flores-Figueroa v. United States, the
Supreme Court concluded that § 1028A(a)(1) requires the Government to prove
that the defendant “knew that the ‘means of identification’ he or she unlawfully
transferred, possessed, or used, in fact, belonged to ‘another person.’” 129 S. Ct.
1886, 1888 (2009) (emphasis in the original).
3.
The evidence established that the domain www.salvationarmyonline.org
was registered using Steven’s name, e-mail address, mailing address, and credit
card information. The registration form filled out and submitted to register the
domain name indicated that Steven was associated with the Salvation Army
when, in fact, he was not. PayPal accounts, registered to various email
addresses, were linked to the bogus Salvation Army website, received donations
through the website, and deposited into bank accounts owned by both Steven
and Bartholomew, although created using the names and identification numbers
of individuals other than Steven or Bartholomew. Two of the PayPal accounts
were linked to a bank account held solely by Bartholomew, while one of the
4
No. 07-20899
PayPal accounts was linked to a bank account held jointly by Bartholomew and
Steven.3 Steven and Bartholomew’s joint bank account also received deposits
from the fraudulent PayPal accounts. The brothers made multiple withdrawals
from their joint bank account and transferred $10,912.00 to another bank
account held jointly by the brothers.
Approximately one month after the bogus Salvation Army website was
registered, the domain www.redcross-usa.org, purporting to be part of the Red
Cross, was registered using the name Beis Stephens, as well as Bartholomew’s
e-mail address, mailing address, and credit card information. A laptop recovered
from the brothers’ apartment contained a picture of Bartholomew wearing a
shirt that read “BEIS LETHAL INC.” This laptop also contained the
www.salvationarmyonline.org web page and search results for the Salvation
Army that listed www.salvationarmyonline.org as the first “hit.” One of these
searches appeared in a subfolder entitled “BJ Stephens.”
Another computer recovered from the apartment contained a spreadsheet
entitled “Mock Money Makin.doc” that tracked the e-mail addresses linked to the
PayPal accounts and indicated the name and bank account associated with each
e-mail address, as well as the amount of money deposited in each bank account.4
A desktop computer also recovered from the apartment contained a document
in a folder labeled “Tex,” shown to be Steven’s nickname,5 entitled “Socials.doc.”
3
Three other PayPal accounts were linked to a bank account held solely by Steven.
4
The spreadsheet also contained statements about www.redcross-usa.org: “redcross-
usa.org is currently available! Do everything from the school[.] Create yahoo e-mail, try these
in this order: 1. americanredcross@yahoo.com 2. redcrossusa@yahoo.com 3. redcross-
usa@yahoo.com 4. redcrossdonations @yahoo.com 5. redcrossdonation1@yahoo.com 6.
redcross_donations@yahoo. com 7. Redcross_donation1@yahoo.com.”
5
The jury learned that several items in the apartment suggested that Steven goes by
the nickname “Tex.” The FBI seized a notepad that contained the moniker Tex, business cards
with Steven’s picture and the words “Sir Tex-CEO” printed on them, and a graduation
announcement addressed to “Steven ‘Tex’ Stephens.”
5
No. 07-20899
This “Socials.doc,” which appeared to be a letter to PayPal about one of the
accounts, also listed other individuals’ names, social security numbers, and dates
of birth. The desktop contained other documents related to the scheme,
including a list of purported directors of the Salvation Army, temporary files
containing the graphic logos of both the Salvation Army and the Red Cross, and
a Google AdWords review of an account with the keywords “salvation army
donation” and “hurricane relief.”
In addition to the above evidence, the police also recovered an email from
Steven to Bartholomew that listed several names, addresses, and social security
numbers that had been given to PayPal. The email stated that Steven had
“Created a Bank Account for these people already.” Some, but not all, of the
social security numbers included the notation “fake social.” The jury could
reasonably infer that social security numbers not so denoted were real – and
thus other individuals’ – social security numbers.
The jury was also presented with numerous hard copy documents
containing incriminating evidence that were found in the apartment. Some
examples include correspondence with PayPal, handwritten notes about being
listed on search engines, documents aimed at gaining tax-exempt status,
photocopies of an altered driver’s license, Bartholomew’s resume (showing that
he was proficient with computers and interested in computer technology), and
a bank statement for the brothers’ joint account reflecting $21,747.00 in
transfers from the PayPal accounts. The brothers’ bank statement had the name
of one of the identity theft victims superimposed over the true holders’ names.
The evidence presented to the jury is more than sufficient to support the
existence of a conspiracy between Bartholomew and Steven, as well as
Bartholomew’s conviction for wire fraud and identity theft. Certainly the
circumstantial evidence presented was sufficient for a reasonable jury to have
found that Bartholomew entered into a conspiracy with Steven, performed overt
6
No. 07-20899
acts in furtherance of the conspiracy, and had knowledge of the unlawful
objectives of the conspiracy. A variety of evidence connects Bartholomew to the
fraudulent Salvation Army website and supports his conviction on the wire fraud
and conspiracy counts, including e-mails between the brothers about the scheme,
money deposited into Bartholomew’s bank accounts from the PayPal accounts
receiving donations from the Salvation Army website, and a document that lists
Bartholomew as the Technology Account Director for the Salvation Army Online
company.6 Finally, in regards to identity theft, the evidence demonstrates that
PayPal accounts were created in the names and identification numbers of
individuals other than Bartholomew and that those PayPal accounts were used
to perpetuate wire fraud. Bartholomew’s email exchange with Steven regarding
“fake socials,” as well as the documents found on computers in the apartment
which tracked the names associated with the PayPal accounts and the amount
of money in each account, is ample evidence on which the jury could reasonably
conclude that Bartholomew committed aggravated identity theft.7
Although Bartholomew maintains that there was no direct evidence of his
knowledge or intent as to any of the charges – specifically, that there was no
evidence that he was not simply another identity theft victim of the scheme – the
Government was not required to present direct evidence. Bartholomew contends
6
Steven emailed Bartholomew with an attached letter from Bartholomew to PayPal.
The letter indicated that Bartholomew was the Technology Account Director for the Salvation
Army Online company and requested that PayPal update an account to show that
Bartholomew was the new administrator. The letter also stated that it was important for
PayPal to do this in a timely fashion due to the Salvation Army’s effort in collecting funds for
those in “dire need” of relief efforts.
7
In addition, the jury received the co-conspirator’s liability charge. If the jury found
Bartholomew guilty of the conspiracy charge, and Steven guilty of any of the substantive
counts, it could find Bartholomew guilty of those counts so long as Steven’s acts were
reasonably forseeable, even if Bartholomew did not participate in any of the acts constituting
that substantive offense. See United States v. Jimenez, 509 F.3d 682, 692 & n.9 (5th Cir. 2007)
(quoting Pinkerton v. United States, 328 U.S. 640 (1946)).
7
No. 07-20899
that his bank account was probably used as a means of implicating him in the
case and not because he was actually involved in the crimes charged. Such
speculation is insufficient, however, since this court views all evidence in the
light most favorable to the verdict, including all reasonable inferences. “The
evidence need not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the jury is free to
choose among reasonable constructions of the evidence.” United States v. Lopez,
74 F.3d 575, 577 (5th Cir. 1996). “The jury was entitled to conclude that the
totality of the evidence belied the defense theory” that Bartholomew was a
victim of identity theft and uninvolved in the conspiracy or substantive crimes.
See Rajwani, 476 F.3d at 247.
Because there was ample evidence that would allow the jury to find
beyond a reasonable doubt that the elements of each count were satisfied, we
affirm Bartholomew’s convictions.
Prosecutorial misconduct
Steven and Bartholomew assert that the Government made improper
comments during both the Government’s opening statement and during Steven’s
closing argument constituting prosecutorial misconduct.
1.
We first examine the Government’s objection during Steven’s closing
argument, which the brothers allege to have been an improper comment on their
decision not to call witnesses, by stating that both sides could subpoena
witnesses.8 Because the comment was timely objected to, it is reviewed under
8
The exchange during Steven’s closing argument was as follows:
Defense counsel: The guns. I suggested to you yesterday that they could have
been bought on-line. And who could they have been bought by? Daniel Lee
Garrett. We don’t know much about him. We know very little about him. The
Government could have brought him into court. The Government could have
subpoenaed him. They could have found him. They could have brought you this
8
No. 07-20899
an abuse of discretion standard. United States v. Gracia, 522 F.3d 597, 600 n.2
(5th Cir. 2008).
“Improper prosecutorial comments constitute reversible error only where
the defendant’s right to a fair trial is substantially affected.” United States v.
Holmes, 406 F.3d 337, 355-56 (5th Cir. 2005) (quotations omitted). This court
applies a two-step inquiry in analyzing claims of prosecutorial misconduct.
“First, we assess whether ‘the prosecutor made an improper remark.’ If so, then
we ask whether the defendant was prejudiced.” United States v. Fields, 483 F.3d
313, 358 (5th Cir. 2007) (citation omitted).
We do not find the Government’s objection to constitute reversible error.
This exchange is similar to one that we examined in Palmer. See id. at 1086.
In Palmer, the prosecutor requested, prior to trial, that the district court forbid
the defense from referencing witnesses who were not going to testify. In
response, the district court ruled that “if the defense says the government did
not subpoena the witnesses, then the government can say that the defense did
not subpoena them.” Id. During closing argument, defense counsel twice
referred to unsubpoenaed witnesses, and in rebuttal the prosecutor stated that
“defense counsel has the exact same subpoena power that the government has[,]”
and “[the defendant] could have subpoenaed [the extra witnesses] if he wanted
you to hear their stories.” Id. This court found no error in the prosecutor’s
missing witness. We know very little about him.
Government: I’m going to object, Your Honor.
The Court: What’s your objection?
Government: Both sides could have done that with subpoenas.
Defense counsel: Of course both sides could have done it. But the point is it’s the
Government’s burden to prove its case, and Mr. Costa knows that.
The Court: Okay. Go on. Continue.
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No. 07-20899
statement because “[r]ather than an impermissible shift in the burden of proof,
these comments were a response to defense counsel’s argument.” Id. Similarly,
we find that the Government’s objection was a response to Steven’s closing
argument and was not an attempt to shift the burden of proof.
Furthermore, as a result of the Government’s objection and after Steven’s
motion for a mistrial, the trial court gave the jury a curative instruction to
remind them that the burden of proof was “beyond a reasonable doubt,” that it
at all times remained on the Government, and that the defendants were not
required to put on any proof.9 Even assuming arguendo that the statement was
error we find that, in light of the curative instruction given to the jury and the
ample evidence produced at trial, it was not sufficiently prejudicial to warrant
reversal of either defendant’s conviction.
2.
Both defendants also challenge the Government’s reference to Hurricane
Katrina during its opening statement to the jury. Because there was no timely
objection, the “already narrow standard of review [of alleged prosecutorial
misconduct] is further constrained,” and the defendants “bear[ ] the burden of
demonstrating that the prosecutor’s statements constitute plain error.” Holmes,
406 F.3d at 355-56. To establish reversible plain error, each defendant must
show that “(1) there is error[,] (2) it is plain[,] and (3) it affected his substantial
rights.” Gracia, 522 F.3d at 600. Even where that burden is met, we still retain
9
Specifically, after closing arguments and the jury retired to start deliberations, the
district court called the jurors back and stated:
Ladies and gentlemen, just out of an abundance of caution, I want to mention
to you again that the burden of proof in a criminal case is on the government
and they are required to prove each element beyond a reasonable doubt.
The Defendant has no burden or requirement or any kind of a – what is it? –
requirement of them to prove anything. They can just stand moot [sic]. And
that burden never shifts. It stays on the Government.
10
No. 07-20899
discretion to decide whether to reverse the conviction, “which we generally will
not do unless the plain error seriously affected the fairness, integrity, or public
reputation of the judicial proceeding.” Id.
Near the start of its opening statement, the Government reminded the
jurors of the images of victims stranded in New Orleans and the generosity
many Houston residents showed in the wake of that event. The Government
then described the brothers as “decid[ing] to take advantage of that generosity
that people in Houston and all over the country showed in trying to help
Hurricane Katrina victims.”10 However, this was not clearly an out-of-bounds
appeal to emotion, as the scheme charged involved efforts to defraud people into
making what they believed to be charitable donations to aid hurricane relief, and
a review of the entire opening statement shows that it was not designed to
unfairly prejudice the defendants. In addition, during its charge to the jury, the
court reminded the jurors that it was part of their duty “to base [their] verdict
solely upon the testimony and evidence in the case, without prejudice or
sympathy, including for the victims of the Hurricanes Katrina and Rita.”
Considering the context of the Government’s statement, the court’s instruction
to the jury, and the strength of evidence supporting the convictions, we find no
plain error in the Government’s statement.
Admission of Evidence Under Rule 404(b)
Steven and Bartholomew assert that the district court erred under Federal
Rule of Evidence 404(b) when it admitted evidence of the Red Cross website
registered by Bartholomew. Generally, challenges to the admission of evidence
10
Steven also challenges the Government’s reference to Hurricane Katrina during its
closing argument. The prosecutor argued to the jurors that, viewing all of the evidence
together, “you’re not going to have any doubt that Bartholomew and Steven Stephens in the
– just a few days after Hurricane Katrina decided to launch a scheme to run a website that
claimed it was a Salvation Army website accepting donations to help hurricane victims.” We
reject this contention for the same reasons reference to the hurricane during opening
arguments does not require reversal.
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No. 07-20899
at trial are reviewed by this court for an abuse of discretion, “subject to harmless
error analysis.” United States v. Crawley, 533 F.3d 349, 353 (5th Cir. 2008).
However, because neither defendant made a timely objection at trial to preserve
the issue, we also review this issue for plain error.11 See United States v.
Duffaut, 314 F.3d 203, 209 (5th Cir. 2002).
Relevant evidence “is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by [the Federal Rules of
Evidence], or by other rules prescribed by the Supreme Court pursuant to
statutory authority.” FED. R. EVID. 402. Rule 404(b) provides that “[e]vidence
of other crimes, wrongs, or acts is not admissible to prove the character of the
person in order to show action in conformity therewith.” FED. R. EVID. 404(b).
However, such evidence may be still admissible for “other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Id. The purpose of Rule 404(b) is to “guard
against the inherent danger that the admission of ‘other acts’ evidence might
lead a jury to convict a defendant not of the charged offense, but instead of an
extrinsic offense.” United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007).
The Government asserts that the district court did not err in admitting
evidence regarding the Red Cross website because it was intrinsic to the charged
crimes. Rule 404(b) is not implicated if the Red Cross evidence was intrinsic to
the acts for which the brothers were charged, i.e. the fraudulent Salvation Army
website.12 United States v. Williams, 900 F.2d 823, 825-26 (5th Cir. 1990). We
11
Both brothers filed motions in limine to exclude evidence of the Red Cross website,
which were overruled, but neither renewed the objection at trial. See United States v. Estes,
994 F.2d 147, 149 (5th Cir. 1993) (“A party whose motion in limine is overruled must renew
his objection when the evidence is about to be introduced at trial.” (citation and quotation
marks omitted)).
12
This approach has been highly criticized by some courts. See, e.g., United States v.
Bowie, 232 F.3d 923, 927 (D.C. Cir. 2000) (“As a practical matter, it is hard to see what
function this interpretation of Rule 404(b) performs. If the so-called ‘intrinsic’ act is indeed
12
No. 07-20899
find “other act” evidence to be intrinsic to the charged crime “when the evidence
of the other act and the evidence of the crime charged are ‘inextricably
intertwined’ or both acts are part of a ‘single criminal episode’ or the other acts
were ‘necessary preliminaries’ to the crime charged.” Williams, 900 F.2d at 825.
Intrinsic evidence “is admissible so that the jury may evaluate all the
circumstances under which the defendant acted.” United States v. Hawley, 516
F.3d 264, 267 (5th Cir. 2008) (quotation omitted). The government argues that
the Red Cross website was intrinsic to the Salvation Army website conspiracy
because it more clearly established the connection between Steven and
Bartholomew and was inextricably intertwined with the evidence of both of the
substantive offenses.13
However, we conclude that the Red Cross website evidence is not intrinsic
to the Salvation Army scheme. The action of creating the Red Cross website was
not “inextricably intertwined” with the evidence of the Salvation Army website.
Neither was it a part of a single criminal episode or a necessary preliminary step
in the Salvation Army website scheme. Certainly the actions are similar, but
they were still distinct events. See United States v. Nguyen, 504 F.3d 561, 574
(5th Cir. 2007) (“Though the conspirators used the same scheme at all of the
properties, each [real estate] deal was a distinct and distinguishable event.”);
Williams, 900 F.2d at 825-26 (“The various mailings [of packages of drugs] were
distinct and distinguishable events none of which constituted a necessary
preliminary for another.”); also United States v. Freeman, 434 F.3d 369, 374 (5th
Cir. 2005) (evidence of second, unindicted wire fraud Ponzi scheme was intrinsic
part of the crime charged, evidence of it will, by definition, always satisfy Rule 404(b). . . . So
far as we can tell, the only consequences of labeling evidence ‘intrinsic’ are to relieve the
prosecution of Rule 404(b)’s notice requirement and the court of its obligation to give an
appropriate limiting instruction upon defense counsel’s request.”).
13
There was no evidence introduced, however, that the Red Cross website was indeed
fraudulent or that any donations were ever collected from the website.
13
No. 07-20899
where funds gained from both schemes were co-mingled and funds from second
scheme were used to make “lulling payments” in charged scheme).
When this court finds “other acts” evidence to be extrinsic, we apply the
two-step test outlined in United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc). “First, it must be determined that the extrinsic offense evidence
is relevant to an issue other than the defendant’s character. Second, the
evidence must possess probative value that is not substantially outweighed by
its undue prejudice and must meet the other requirements of [R]ule 403.” Id.
Even under this stricter standard of relevance, we cannot conclude that the
district court plainly erred as to either defendant in admitting the evidence.14
With respect to step one, the Government maintains that the registration
of the Red Cross website was relevant to the brothers’ plan, intent, motive, and
preparation. This court has stated that whether evidence is relevant to the issue
of intent “is determined by comparing the defendant’s state of mind in
perpetrating the respective offenses.” Crawley, 533 F.3d at 354. It has also been
stated that “there is no requirement that the [extrinsic evidence] result[] in
formal charges.” Id. Although both brothers contest that the Red Cross
evidence was relevant because the Government did not put on proof that it was
not a legitimate Red Cross website, we disagree. In Nguyen, this court explained
that extrinsic evidence of using the same scheme repeatedly is relevant to
knowledge and intent, in that it “demonstrate[s] how [an] operation work[s].”
504 F.3d at 574. Such was the case with Bartholomew’s registration of the Red
Cross website. For example, the “Mock Money Makin.doc” spreadsheet,
recovered from one of the computers in the brothers’ apartment, contained
14
The district court is not required to conduct an on-the-record Beechum analysis unless
the defendant requests one. Nguyen, 504 F.3d at 574. Although the district court did not
expressly determine whether evidence of Bartholomew’s registration of the Red Cross website
was intrinsic or extrinsic, it conducted an implicit Beechum analysis during the hearing on the
motion in limine after which it concluded evidence of the website was admissible.
14
No. 07-20899
information about the PayPal accounts linked to the Salvation Army website, as
well as information about creating a PayPal account for the Red Cross website
and about listing the Red Cross website on a search engine called Overture. This
spreadsheet demonstrated, at least in part, how the operation worked and
therefore helped establish the brothers’ intent, planning, preparation, and
knowledge.
With respect to step two, neither defendant has demonstrated how the
probative value of the evidence was substantially outweighed by the danger of
undue prejudice to such a degree that for the district court to have admitted the
evidence was plain error. There was ample non-Red Cross evidence supporting
the jury’s verdict. Though the defendants emphasize the number of references
made to the Red Cross website by the Government, this does nothing to
undermine the overwhelming evidence that exists regarding the Salvation Army
web site scheme, nor the fact that the jury was instructed to use the extrinsic
evidence to ascertain the brothers’ mental state. See, e.g., Williams, 900 F.2d at
827 (“As long as it is clear to the jury that the extrinsic evidence of the [other
act] is presented only to show modus operandi to prove knowledge and intent,
there is little danger that presentation of the extrinsic evidence will cause unfair
prejudice . . . .”). Furthermore, even assuming that the district court erred in
admitting the evidence of the Red Cross website, neither defendant has
demonstrated that such evidence affected his substantial rights. We cannot
conclude that the district court committed plain error when it admitted evidence
regarding the Red Cross website.
Cumulative Error
Finally, Bartholomew contends that cumulative error led to an erroneous
jury verdict. This argument essentially summarizes the other issues raised on
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No. 07-20899
appeal.15 Under the cumulative error doctrine, relief may be obtained “only
when constitutional errors so ‘fatally infect the trial’ that they violate the trial’s
‘fundamental fairness.’” United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004)
(citation omitted). Because we have determined that the district court did not
err, Bartholomew’s argument fails.
CONCLUSION
For the foregoing reasons, we AFFIRM the convictions.
15
In addition to the issues addressed above, Bartholomew argues that there was a
variance between the indictment and the evidence introduced at trial. He asserts “the
indictment required proof of a scheme pertaining to the web site
www.thesalvationarmyonline.org, [but] the proof at trial pertained to the website
www.salvationarmyonline.org.” In fact, the indictment does allege the establishment of
www.salvationarmyonline.org. No variance exists.
16