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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60011

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

FRANSENE BERRY

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:06-CR-86-4

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Fransene Berry appeals her jury conviction for one count of conspiracy to

commit mail fraud in violation of 18 U.S.C. § 371 and six counts of mail fraud in

violation of 18 U.S.C. § 1341. She raises four issues on appeal.

First, Berry contends that the district court erred when it improperly

instructed the jury on the object of the charged conspiracy. Although the district

court corrected itself and ordered the jury to disregard the erroneous instruction,

United States Court of Appeals

Fifth Circuit

F I L E D

April 23, 2009

Charles R. Fulbruge III

Clerk
No. 08-60011

2

Berry argues that the process of changing the instruction misled and confused

the jury. Because Berry did not object to the jury instructions in the district

court, review is for plain error. See United States v. Hickman, 331 F.3d 439, 443

(5th Cir. 2003); FED. R. CRIM. P. 30(d).

The jury instructions as a whole did not mislead the jury and did not

create a substantial and ineradicable doubt as to whether the jury was properly

guided in its deliberations. See United States v. Klein, 543 F.3d 206, 210 (5th

Cir. 2008). The district court correctly instructed the jury that the object of the

conspiracy was to commit mail fraud. The district court also instructed the jury

on the essential elements of the substantive offense of mail fraud. The jury did

not question the district court’s instructions prior to returning its verdict.

Further, the evidence was sufficient to establish that Berry knew the use of the

mails would follow in the ordinary course of business or that it was reasonably

foreseeable that the mails would be used to execute the fraudulent scheme.

Therefore, Berry has not shown error. See United States v. Wells, 262 F.3d 455,

465 (5th Cir. 2001).

Berry also contends that the district court abused its discretion in allowing

inadmissible hearsay testimony. Specifically, she argues that Patrick McGee’s

testimony that she was increasing the square footage of the houses was

inadmissible hearsay under FED. R. EVID. 801(c) and that none of the hearsay

exceptions applied. Because Berry did not object to this testimony in the district

court, review is for plain error. See United States v. Cantu, 167 F.3d 198, 204

(5th Cir. 1999). 

Even if the district court erred in allowing inadmissible hearsay testimony

and the error was clear or obvious, Berry has not shown that the error affected

her substantial rights. Appraisal expert Robert Praytor testified that Berry was

fraudulently inflating the value of the homes by modifying the square footage of

the homes and their comparable listings. Thus, the underlying evidence was

properly presented to the jury, and Berry has not shown plain error. See id.
No. 08-60011

3

Berry also contends that the evidence at trial was insufficient to sustain

her conviction for conspiracy to commit mail fraud. She does not dispute that

she and others conspired to provide false information to lenders in order to

obtain fraudulently inflated mortgage loans. Rather, Berry argues that the

Government failed to prove that she used, conspired, or intended to use the

mails to defraud or that she knew the mails would be used to defraud. Because

Berry moved for a judgment of acquittal at the close of the Government’s case

and renewed the motion at the close of all of the evidence, she properly preserved

her sufficiency claim for appellate review. See United States v. Ferguson, 211

F.3d 878, 882 (5th Cir. 2000).

To prove a mail fraud conspiracy, the Government must prove beyond a

reasonable doubt: “(1) an agreement between [the defendant] and others (2) to

commit the crime of mail fraud, and (3) an overt act committed by one of the

conspirators in furtherance of that agreement.” United States v. Sneed, 63 F.3d

381, 385 (5th Cir. 1995). The Government must also prove that the defendant

acted with intent to defraud. United States v. Garza, 429 F.3d 165, 168-69 (5th

Cir. 2005). To prove mail fraud, the Government must prove beyond a

reasonable doubt: “(1) a scheme to defraud (2) which involves a use of the mails

(3) for the purpose of executing the scheme.” United States v. Ingles, 445 F.3d

830, 835 (5th Cir. 2006) (internal quotation marks and citations omitted). “The

government need not prove that the [defendant] used the mails [herself] or

actually intended that the mail be used.” United States v. McClelland, 868 F.2d

704, 707 (5th Cir. 1989). “The mail fraud statute requires only that the mailing

caused by the defendant’s actions be incident to an essential part of the scheme.”

Ingles, 445 F.3d at 835 (internal quotation marks and citation omitted). A

defendant causes the mails to be used if she “does an act with knowledge that

the use of the mails will follow in the ordinary course of business, or where [she]

can reasonably foresee that use of the mails will result.” McClelland, 868 F.2d

at 707.
No. 08-60011

4

Viewing the evidence in the light most favorable to the verdict, the

evidence was sufficient to establish that Berry knew the use of the mails would

follow in the ordinary course of business or that it was reasonably foreseeable

that the mails would be used to execute the fraudulent scheme. Attorney Robert

Lingle testified that at the conclusion of real estate closings, lenders generally

require that the closing documents be delivered to them either by hand, if the

lender is local, or by mail. In the instant case, the lenders did not have

underwriters in Mississippi. Thus, in accordance with the lenders’ specific

instructions, the closing documents were mailed to them via Federal Express.

Co-conspirators McGee, Marvin Dawson, and Thomas Griffin testified that

Berry’s appraisals were an essential part of the fraudulent scheme because

without the appraisals the lenders would not have approved the inflated loans.

Griffin also testified that the appraisals were part of the original loan packages

he would send to the lenders. James Ferrol, a representative of Homecomings

Financial Network, Inc., testified that the loan packages were usually sent to

them by overnight mail or the regular postal service. As a licensed appraiser,

Berry knew or should have known that her appraisals were an integral part of

the loan process and that the mails would be used in authorizing the loans and

completing the closings in the ordinary course of business. Accordingly, the

evidence at trial was sufficient to sustain Berry’s conviction for conspiracy to

commit mail fraud. See McClelland, 868 F.2d at 707.

Finally, Berry contends that trial counsel was ineffective in failing to

investigate and present the testimony of important fact witnesses. The record

is not sufficiently developed to permit direct review of Berry’s ineffective

assistance of counsel claims. See United States v. Kizzee, 150 F.3d 497, 502-03

(5th Cir. 1998). Therefore, this court declines to consider these claims without

prejudice to Berry’s right to raise them in a 28 U.S.C. § 2255 motion. See id. at

503. 

AFFIRMED.