IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 for his role in a

fraudulent real estate scheme. Rosenberger now appeals, bringing three claims

of error. We find no error and affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

December 17, 2012

Lyle W. Cayce

Clerk

 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.

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I. Facts & Proceedings

A. Facts

In 2009, Rosenberger and Jason Morrison went into business under the

name Vanguard Properties. Together, they conducted a fraudulent scheme to

“flip” distressed 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 promise 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, all the while 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.

Rosenberger 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

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

one count of mail fraud, and ten counts of wire fraud. The substantive fraud

counts arose from communications between Morrison and the lenders and from

wire transfers from the buyers. Morrison eventually pleaded guilty; Rosenberger

was charged with aiding and abetting those counts, and he went to trial. 

The government adduced the testimony of the defendant’s former business

partner that Rosenberger was very experienced in real estate transactions. The

government also called a number of the scheme’s victims who testified about

their dealings with Rosenberger. At the close of the government’s case, 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 and 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) the trial 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

After the guilty verdict, Rosenberger pleaded guilty, in a different case pending before 1

the same court, to one count of mail fraud arising out of an unrelated 2006 real estate

transaction. Rosenberger appeals the sentence from that conviction, contending that he

should be resentenced if he is successful in reversing his conviction in this case. As we affirm

his conviction here, that other appeal is moot.

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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 light most 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 found the essential

elements of the crime beyond a reasonable doubt.” “The evidence need not

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 tough standard, we will not reverse unless the error has a

serious effect on the fairness, integrity, or public reputation 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 to commit those

United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).

2

Id. (internal quotation marks omitted).

3

Id. (internal quotation marks omitted).

4

United States v. Aubin, 87 F.3d 141, 144 (5th Cir. 1996) (internal quotation marks 5

omitted).

United States v. McCullough, 631 F.3d 783, 793 (5th Cir. 2011).

6

E.g., United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009).

7

Id. (internal quotation marks omitted).

8

4

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crimes. The agreement “need not be shown to have been explicit” and “can

9

instead be inferred from the facts and circumstances of the case.” To prove 10

both conspiracy and aiding and abetting mail and wire fraud, the government

must show an intent to defraud. “Circumstantial evidence can be sufficient to 11

prove fraudulent intent in mail and wire fraud cases.” “Typically, the same 12

evidence will support both a conspiracy and an aiding and abetting conviction.”13

Rosenberger challenges the sufficiency of the evidence regarding the

requisite intent to defraud and the existence of a conspiratorial agreement

between him and Morrison. He claims thatMorrison’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 that his

convictions must be reversed because evidence equally consistent with

fraudulent or innocent intent cannot sustain a fraud conviction as a matter of

law.14

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 equally 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

United States v. Ingles, 445 F.3d 830, 838 (5th Cir. 2006).

9

Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975).

10

See Ingles, 445 F.3d at 838; United States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002).

11

Crowe v. Henry, 115 F.3d 294, 297 (5th Cir. 1997).

12

United States v. Vasquez, 677 F.3d 685, 695 (5th Cir. 2012) (internal quotation marks 13

omitted).

See United States v. Reveles, 190 F.3d 678, 686 (5th Cir. 1999) (“When the evidence 14

is in equipoise, as a matter of law it cannot serve as the basis of a finding of knowledge.”).

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Morrison’s role, a finding of fraudulent intent or conspiratorial agreement is not

precluded. Moreover, the jury heard ample evidence from which to infer 15

Rosenberger’s guilty mind. As the record unequivocally establishes 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 who were victims of the

scheme testified regarding communications with Rosenberger that negate any

inference of innocence or obliviousness. In particular, Rosenberger’s actions

with respect 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, the 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. Indeed, if Rosenberger had

lacked fraudulent intent, then Morrison would have had no one with whom to

conspire. The jury acted well within the confines of logic and the law by

rejecting that testimony.

United States v. Sneed, 63 F.3d 381, 385-86 (5th Cir. 1995) (“The members of a

15

conspiracy which functions through a division of labor need not be privy to the details of each

aspect of the conspiracy.”) (alteration and internal quotation marks omitted).

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In short, Rosenberger has not overcome the imposing burden of sufficiency

review. Viewing all evidence in the light most favorable to the verdict, the

record supports affirmance.16

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 17

the defendant’s substantial rights by surprising him at trial.18

The indictment charged a conspiracy lasting from March 2009 to March

2010 and affecting 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 articulated in detail in the indictment,

“the government is not limited to the overt acts pleaded in the indictment in

For the same reasons, we reject Rosenberger’s alternative request for a new trial, 16

under 28 U.S.C. § 2106. Even assuming that we could grant a new trial despite Rosenberger’s

failure to request one pursuant to Federal Rule of Criminal Procedure 33, see United States

v. Nguyen, 507 F.3d 836, 838-39 (5th Cir. 2007), we perceive no basis for such relief, see United

States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (“In this Circuit, the generally accepted

standard is that a new trial ordinarily should not be granted unless there would be a

miscarriage of justice or the weight of evidence preponderates against the verdict.”) (internal

quotation marks omitted).

United States v. Mitchell, 484 F.3d 762, 769 (5th Cir. 2007) (internal quotation marks 17

and citation omitted).

United States v. Valencia, 600 F.3d 389, 432 (5th Cir. 2010).

18

7

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proving a conspiracy, but may show other acts of conspirators occurring during

its life.” We perceive no error. 19

D. Improper Prosecutorial Remarks

Finally, Rosenberger raises a number of purportedly improper

prosecutorial comments, none of which he objected to at trial. Reviewing for

plain error, we find none.

First, Rosenberger 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 20

other, equally plausible explanation for the remark.” 

21

We begin by examining the challenged remark in full context. At trial, 22

the government introduced and played recordings 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 suggested to the jury that Morrison had taken

advantage of 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.

United States v. Carlock, 806 F.2d 535, 550 (5th Cir. 1986).

19

Cotton v. Cockrell, 343 F.3d 746, 751 (5th Cir. 2003) (internal quotation marks 20

omitted). 

Id. 21

See id. (“[C]hallenged comments are evaluated in the context of the trial within which 22

they are made.”).

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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 grader you’ve ever met? Or

does he sound like 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. But, even if we

were to take a narrower view and conclude that alluding to Rosenberger’s right

to remain silent was unnecessary and improper, any conceivable prejudice to

Rosenberger was negligible at most and could not have affected his substantial

rights.23

Neither can we conclude that the rest of the remarks of which Rosenberger

complains constituted 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 be interpreted as bolstering that witness’s credibility. And,

the references to the sub-prime mortgage market and to achieving justice for

Rosenberger’s victims fall well short of any realistic likelihood of prejudice.24

See United States v. Delgado, 672 F.3d 320, 337 (5th Cir. 2012); see also United States 23

v. McMillan, 600 F.3d 434, 452 (5th Cir. 2010) (finding no error “even if we assume that the

prosecutor’s comments improperly reflected on the defendants’ failure to testify” because “the

comments were more an isolated remark than a call for the jury to focus on the fact that the

defendants did not testify”).

Rosenberger’s reliance on United States v. Payne, a Sixth Circuit case, is misplaced 24

because of its significantly more egregious facts. 2 F.3d 706, 714 (6th Cir. 1993) (reversing

conviction because of prosecutor’s “calculated effort used to evoke strong sympathetic emotions

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In summary, we affirm Rosenberger’s convictions and sentences on all

counts.

AFFIRMED.

for Christmas-time activity, the poor, pregnant women, diaperless children, and laid-off

employees”).

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