### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

Nos. 11-50621, 11-50632

UNITED STATES OF AMERICA Plaintiff–Appellee

v. MARCUS ROSENBERGER Defendant–Appellant

Appeals from the United States District Court for the Western District of Texas

7:10-CR-135-2 7:11-CR-60-1

Before WIENER, CLEMENT, and PRADO, Circuit Judges. PER CURIAM * A jury convicted Defendant–Appellant Marcus Rosenberger of conspiracy to commit, and aiding and abetting, mail and wire fraud f o r h i s r o l e in a fraudulent real estate scheme. Rosenberger now appeals, bringing three claims of error. We find no error and affirm. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 1 7, 2 012 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-50621 Document: 00512086425 Page: 1 Date Filed: 12/17/2012No. 11-50621, 11-50632

I. Facts & Proceedings A. Facts In 2009, Rosenberger and Jason Morrison went into business u n der the

name Vanguard Properties. Together, they conducted a fraudulent scheme to “flip” d istressed properties that were about to go into foreclosure. They would first identify a target home and then convince the owner to deed it over to them in exchange for their pro m ise to prevent damage to the owner’s credit history from a foreclosure. They would then sell the home (still subject to the original mortgage) and pocket the proceeds, a l l t h e w h ile doing little or nothing to prevent foreclosure. To conceal their actions from the mortgagee, they refrained from recording their deeds in the public records. Typically, this would result in the mortgagee foreclosing, the new buyer being evicted, and the original owner suffering a foreclosure on his credit history. Morrison and Rosenberger flipped nine homes this way. R osenberger and Morrison divided the labor of the scheme. Morrison would find a distressed home and convince the owner to transfer it to Vanguard, then Rosenberger would advertise and eventually sell the home to the new buyer. The pair nevertheless held themselves out to sellers and buyers as equal business partners and agreed to share the profits equally. After a dispute arose over finances, Rosenberger and Morrison divided up their portfolio of distressed properties in October 2009. Rosenberger took total responsibility for two of the homes in Midland, Texas, one on Harlowe Drive and the other on Amigo Drive. He continued the scheme with respect to those two homes, collecting payments from the buyers, failing to take any steps to prevent foreclosure, and evading inquiries from the original owners. B. Proceedings

2 Case: 11-50621 Document: 00512086425 Page: 2 Date Filed: 12/17/2012No. 11-50621, 11-50632

Rosenberger and Morrison were each indicted on one count of conspiracy,

one count of mail fraud, and ten counts of wire fraud. T h e s u b s t antive fraud counts arose from communications between Morrison and the lenders and from

w i r e t r a n s f

e r s f r o m t h e buyers. Morrison eventually pleaded guilt y ; R o s e nb e r g e r was charged with aiding and abetting those counts, and he went to trial. T h e go v e r n m e n t a d d u c e d t h e testimony of the defendant’s form e r b u s i n e s s partner that Rosenberger was very experienced in real estate transactions. The government also called a number of the scheme’s victims w h o t e s tified about their dealings with Rosenberger. At the close of the governme n t ’ s c a se, the district court denied Rosenberger’s Rule 29 motion for acquittal. Rosenberger put on an affirmative defense in which he attempted to shift the blame to Morrison a n d to portray himself as an unwitting employee who simply sold properties for Morrison. In his testimony, Morrison downplayed Rosenberger’s role in the scheme. At the conclusion of the trial, the district court denied Rosenberger’s renewed Rule 29 motion, and the jury convicted him on all counts. Rosenberger was sentenced to 33 months’ incarceration. On appeal, he contends that (1) the evidence was not sufficient to prove the requisite mens rea
or the confection of a conspiratorial agreement, (2) t h e t r ial evidence varied materially from the allegations of the indictment, and (3) the prosecutor made improper comments in both opening and closing argument. 1 II. Analysis A. Standards of Review

Aft er the guilty verd ict , Rose nber ger ple ade d guilty, in a dif fer ent cas e pend ing bef ore 1 the sam e cour t, t o o n e c o u nt of mai l fr aud aris ing out of an unrel ated 2006 real es tat e tra nsa cti on. Rose nber ger app eals the se nten ce fr om that convic tio n, cont endi ng that he sho uld be res ente nced if he is suc ces sf ul in rever sin g his convic tio n in this cas e. As we aff irm his c onvict ion here , that ot her app eal is mo ot. 3 Case: 11-50621 Document: 00512086425 Page: 3 Date Filed: 12/17/2012No. 11-50621, 11-50632

Rosenberger preserved his challenge to the sufficiency of the evidence, so
we review that claim de novo. We “view all evidence, whether circumstantial 2

or direct, in the l i g h t m o st favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury’s verdict, to determine whether a rational trier of fact could have fo u n d t h e essential

e l e m e nts of the crime beyond a reasonable doubt.” “The evidence need no t 3 exclude every reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt, in order to be sufficient.” Thus, 4 Rosenberger “faces an imposing standard of review.” 5 Rosenberger did not, however, object to a material variance between the evidence and the indictment or to any remarks by the prosecutor. We therefore review these points for plain error. To show plain error, he must demonstrate 6 that the error was clear or obvious and affected his substantial rights. “Even 7 if he meets this t o ugh standard, we will not reverse unless the error has a serious effect on the fairness, integrity, or public reputat i o n of judicial proceedings.” 8 B. Sufficiency of the Evidence To prove conspiracy to commit mail fraud and wire fraud, the government must show an agreement between the defendant and another t o c ommit those

Uni ted Sta tes v. G ra nt , 683 F.3d639 , 642 (5t h Cir

. 2012)

. 2
Id. ( inte rnal quot atio n m ark s om itt ed)

. 3
Id. ( inte rnal quot atio n m ark s om itt ed)

. 4
Uni ted States v. Aubi n , 87 F.3d 141, 144 (5t h Cir. 1996) (int erna l qu o t atio n mar ks 5
om itt ed)

.

Uni ted Sta tes v. M

cCul lough , 631 F.3d783 , 793 (5t h Cir

. 2011)

. 6 E.g. , Uni ted Sta tes v. Ba rl ow , 568 F.3d215 , 219 (5t h Cir

. 2009)

. 7
Id. ( inte rnal quot atio n m ark s om itt ed)

. 8
4 Case: 11-50621 Document: 00512086425 Page: 4 Date Filed: 12/17/2012No. 11-50621, 11-50632

crimes. The agreement “need not be shown to have been explicit” an d “ c a n

9 instead be inferred from the facts an d c i r c u mstances of the case.” To prove 1 0 both conspiracy and aiding and abetting mail and wire fraud, the government must show an intent to defraud. “Circumstantial evidence can be sufficient to 1 1
prove fraudulent intent in mail and wire fraud cases.” “Typically, th e same 1 2 evidence will support both a conspiracy and an aiding and abetting conviction.” 1 3 Rosenberger challenges the sufficiency o f the evidence regarding the requisite intent to defraud and the existence of a cons p i r atorial agreement between him and Morrison. H e c l a i m s th a t M o r r i son’s testimony exculpated him and that the circumstantial evidence was at least as consistent with his version of the facts as with the government’s version. Rosenberger insists t h at his

conv i c t i o ns must be reversed because evidence equally consistent with fraudulent or innocent intent cannot sustain a fraud convict i o n as a matter of law. 1 4 When we review the record under the appropriate standard of review, we
are satisfied that the jury had ample circumstantial evidence from which to infer

a conspiratorial agreement and intent to defraud. Rosenberger and Morrison intended to share their ill-gotten gains e qually and held themselves out as business partners while perpetuating the fraud. Even if their division of labor within the conspiracy kept Rosenberger from knowing all of the details of

Uni ted Sta tes v. Ingle s , 445 F.3d830 , 838 (5t h Cir

. 2006)

. 9
Iannel li v . Uni ted Sta tes , 420 U. S. 770 , 777 n.10 ( 1975)

. 1 0
See Ingles , 445 F.3d at 838; Uni ted States v. Riv era , 295 F.3d 461, 466 (5t h Cir. 2002)

. 1 1
Crow e v. H

enr y , 115 F.3d294 , 297 (5t h Cir

. 1997)

. 1 2
Uni ted States v. Va sque z , 677 F.3d 685, 695 (5t h Cir. 2012) (int erna l quot atio n mar ks 1 3
om itt ed)

. See Uni ted States v. Reve le s , 190 F.3d 678, 686 (5t h Cir. 1999) (“ When the evide nce

1 4 is in equip ois e, as a m att er of lawit c annot s erve as the bas is of a f indi ng of

k now led ge.” ). 5 Case: 11-50621 Document: 00512086425 Page: 5 Date Filed: 12/17/2012No. 11-50621, 11-50632

Morrison’s role, a finding of fraudulent intent or conspiratorial agreement is not precluded. Moreover, the jury heard ample evidence from w h i c h t o infer

1 5 Rosenberger’s guilty mind. As the record unequivocally e s t a b l ishes that Rosenberger was a sophisticated and experienced real estate entrepreneur, the jury easily could have concluded that he could not have been deceived or misled by Morrison about the nature of their business or otherwise have been unaware of its true nature. And numerous sellers and buyers wh o w e r e victims of the scheme testified regarding communications with Rosenberger that negate any inference of innocence or obliviousness. In particular, Rosenberg e r ’s actions

w i t h r e s p e ct to the Harlowe Drive and Amigo Drive properties after he and Morrison split in October 2009 were entirely consistent with the scheme. On the totality of the evidence, the jury could have concluded beyond a reasonable doubt that Rosenberger knew what was going on all along. Although Morrison’s testimony could have undermined a finding of Rosenberger’s fraudulent intent, t h e jury did not have to believe it. Morrison

was impeached by his guilty pleas to unrelated charges of burglary and failure to register as a sex offender, as well as by the charges arising out of his dealings with Rosenberger and the victims of their fraud. Indee d , if Rosenberger had lacked fraudulent intent, then Morrison would have had no one with whom to conspire. The jury acted well within the co n f i n e s o f l ogic and the law by rejecting that testimony.

U n i te d States v. Sneed , 63 F.3d 381, 385- 86 (5t h Cir. 1995) (“ The me mbe r s o f a 15
cons pir acy wh ich func tio ns thr ough a divis ion of labor need not be pr ivy to the det ails of each asp ectof

t he cons pir acy. ”) ( alte rat ion and inte rnal quot atio n m ark s om itt ed)

. 6 Case: 11-50621 Document: 00512086425 Page: 6 Date Filed: 12/17/2012No. 11-50621, 11-50632

In short, Rosenberger has not overcome the imposing burden of sufficiency review. Viewing all evidence in the light most favorabl e to the verdict, the record supports affirmance. 1 6 C. Material Variance Rosenberger also contends that the trial evidence materially varied from the allegations of the indictment because his handling of the homes on Harlowe Drive and Amigo Drive after October 2009 was not charged as an overt act. “A material variance occurs when the proof at trial depicts a scenario that differs materially from the scenario charged in the indictment but does not modify an essential element of the charged offense.” A variance is material if it prejudices 1 7 the defendant’s substantial rights by surprising him at trial. 1 8 The indictment charged a conspiracy lasting from March 2 0 0 9 t o March 2010 and a f

f e cting the Harlowe Drive and Amigo Drive properties, among others. Thus, Rosenberger could not have been surprised at trial by evidence pertaining to those properties during that period. Moreover, his conduct was entirely consistent with the charged scheme, not at variance with it. Although the discrete facts were not specifically articul a t e d i n d etail in the indictment,

“ t h e government is not limited to the overt acts pleaded in the indictme n t i n

For the sam e reas ons , we r ej e c t R o se nber ger’s alte rnat ive requ es t for a new tri al, 1 6 unde r 28 U. S. C. § 2106. Even ass umi ng that we coul d grant a new tri al des pit e Rose nber ger’s fai lure to requ es t one pur sua nt to Fede ral Rule of Crim inal Proc edur e 33, see Uni ted States
v. Nguye n , 507 F.3d 836, 838- 39 (5t h Cir. 2007) , we per ceive no bas is for suc h reli ef, see Uni ted States v. Wright , 634 F.3d 770, 775 (5t h Cir. 2011) (“ In this Circ uit, the genera lly acc ept ed st andar d is that a new tri al ord inari ly sho uld not be grant ed unles s ther e wo u l d be a mi sc arr iage of just ice or the we ight of evide nce pr epo nder ates agains t the verd ict .” ) (int erna l quot atio n m ark s om itt ed)

.

Uni ted States v. Mi tchel l , 484 F.3d 762, 769 (5t h Cir. 2007) (int erna l quot atio n mar ks 1 7 and cit atio n o mi tte d)

.

Uni ted Sta tes v. V

al enc ia , 600 F.3d389 , 432 (5t h Cir

. 2010)

. 1 8 7 Case: 11-50621 Document: 00512086425 Page: 7 Date Filed: 12/17/2012No. 11-50621, 11-50632

proving a conspiracy, but may show other acts of conspirators occurring during its life.” We perceive no error.

1 9 D. Improper Prosecutorial Remarks Finally, Rosenberger raises a number of purpor t e d ly improper prosecutorial comment s , n o n e of which he objected to at trial. Reviewing for plain error, we find none. Fir s t , R osenberger challenges a remark touching on his constitutional right not to testify at trial. The Fifth Amendment prohibits a remark if “the prosecutor’s manifest intent in making the remark must have been to comment

on the defendant’s silence, or the character of the remark must have been such that the jury would naturally and necessarily construe it as a comment on the defendant's silence.” “The prosecutor’s intent is not manifest if there is some 2 0 other, equally plausible explanation for the remark.” 2 1 We begin by examining the challenged remark in full context. At trial, 2 2 the government introduced and played re c ordings of telephone conversations involving Rosenberger, and he did not object. The jury thus had the opportunity to hear him speak and to draw inferences about his mental capabilities. In closing argument, defense counsel s u g g e sted to the jury that Morrison had taken advantage o f Rosenberger’s limited faculties. To refute this argument, the prosecutor referred the jury to the recordings:

Don’t be misled. Don’t be fooled by this notion that, “Gee, I just don’t know”; he’s just a fourth grader; he doesn’t know.

Uni ted Sta tes v. Ca rl ock , 806 F.2d535 , 550 (5t h Cir

. 1986)

. 1 9
Cotton v. Cockr el l , 343 F.3d 746, 751 (5t h Cir. 2003) (int ern a l quot atio n mar ks 2 0
om itt ed)

. Id.

2 1
See id. (“ [C] hallen ged com me nts are evaluat ed in the cont ext of the tri al wi thin wh ich 2 2 they are mad e.” ). 8 Case: 11-50621 Document: 00512086425 Page: 8 Date Filed: 12/17/2012No. 11-50621, 11-50632 You heard recordings of Mr. Rosenberger. He does not have to take the stand. It’s not his burden. It’s my burden. But you had an opportunity to listen to him on the recordings, and you can make that judgment for yourself. Does he sound like any fourth gra der you’ve ever met? Or does he s o u n d l i k e a grown man who knows what he’s talking about? Read as a whole, the prosecutor ’s remarks were directed at the recorded speech that the jury actually heard, not at Rosenberger’s silence. This is a plausible explanation for the remark, negating any manifest intent to comment

on Rosenberger’s silence. Neither is the remark one that the jury would necessarily construe as commenting on Rosenberger’s silence. Bu t , e v e n if we
were to take a narrower view and conclude that alluding to Rosenberger’s right to r e m a i n silent was unnecessary and improper, any conceivable prejudice to Rosenberger was negligible at most and could not have affected his substantial rights. 2 3 Neither can we conclude that the rest of the remarks of which Rosenberger complains c onstituted error, much less reversible plain error. The record supports the prosecutor’s remarks about Rosenberger’s real estate acumen and mathematical skill, and about his limitations in other areas. The prosecutor’s reference to a witness’s military service was relevant in the context of the trial and cannot plausibly b e i n t e rpreted as bolstering that witness’s credibility. And, the references to the sub-pr i m e m ortgage market and to achieving justice for Rosenberger’s victims fall well short of any realistic likelihood of prejudice. 2 4

See Uni ted States v. De lga do , 672 F.3d 320, 337 (5t h Cir. 2012) ; see al so Uni ted States 2 3
v. McM il la n , 600 F.3d434, 452 (5t h Cir

. 2010) ( find ing no er ror“ even if we as sum e thatthe pr os ecut or’ s com me nts im pr ope rly ref lect ed on the def

enda nts ’ fai lure to tes tif y” beca use “th e com me nts wer e mor e an iso late d rem ark than a call forthe jury to foc us on the fact that the def enda nts d id not tes tif

y”).
Rose nber ger’s reli ance on Uni ted States v. Payne , a Sixth Circ uit case, is mis plac ed 2 4 beca use of its si g n i f

i c a n tly mo re egregio us fac ts

. 2 F.3d 706, 714 (6t h Cir. 1993) (r evers ing convic tio n beca use of pr os ecut or’ s “ca lcula ted eff ort use d to evok e st ro n g sy mp athe tic em oti ons 9 Case: 11-50621 Document: 00512086425 Page: 9 Date Filed: 12/17/2012No. 11-50621, 11-50632

In summary, we affirm Rosenberger’ s c o n v i ctions and sentences on all counts. AFFIRMED.

for Chris tm as- tim e act ivity, the poo r, pr egnant wo me n, diap erle ss child ren, and l a i d

- off
em plo yees ”)

. 10 Case: 11-50621 Document: 00512086425 Page: 10 Date Filed: 12/17/2012