UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 01-20102

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCIAL RIVERA,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

June 19, 2002

Before EMILIO M. GARZA, BENAVIDES, and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Defendant-Appellant Marcial Rivera was indicted for seven counts of aiding and abetting wire

fraud in violation of 18 U.S.C. §§ 2 and 1343, for conspiracy to launder monetary instrume nt s in

violation of 18 U.S.C. § 1956(h), for aiding and abetting money laundering in violation of 18 U.S.C.

§§ 2 and 1956(a)(1)(A)(i), and for threateni ng t o retaliate against an informant in violation of 18

U.S.C. § 1513(b)(2). He was tried by a jury and convicted on all charges except for threatening to

retaliate against an informant. The district court then sentenced him to concurrent terms of fifty-1 An entity known as MRB Investments, Inc. owned 50% of t he Watch Shop. Ri vera was

president of MRB, which he apparently owned along with his brother, Sergio Rivera.

2 EFS is an electronic credit card proc essor for merchants. Merchants process or “swipe”

cards electronically through electronic credit card t erminals installed at the merchant’s business.

W hen t he merchant swipes a customer’s card and enters the purchase amount, the information is

wired electronically to EFS. EFS then wires the card’s issuing bank for an authorization code. The

authorization code is then sent to the merchant. This informs the business that the card is not stolen

or overdrawn. If the automatic electronic imprint fails to register, the merchant takes a physical

imprint of the card and manually types in the cr edit card number. Whether the card is processed

electronically or manually, the customer then signs the imprint from the terminal.

-2- seven months’ imprisonment on each count. On appeal, Rivera challenges the sufficiency o f t he

evidence supporting his conviction. In addition, Rivera argues that the prosecutor committed

reversible erro r by commenting on his post- M iranda silence and that the district court abused its

discretion in denying his motion for a new trial because of juror misconduct.

I

Rivera and Robert Swan so n were co-owners of a Houston business known as the Watch

Shop. 1 The Watch Shop specialized in luxury watches as well as gold and other jewelry. In 1998,

t he Wat ch Sho p was in serious financial trouble. By September 1999, one of the store’s bank

accounts, which was under Swanson’s name, had a negative balance of more than $21,000. Swanson

also was overdrawn significant ly on his personal accounts, at one point averaging at least $1,000 per

week in overdraft charges.

Beginning in March of 1998, several persons reported large, unauthorized charges made at

the Watch Shop to credit cards that had been lost or stolen. First , Ernest Albers, after losing his

corporate card, received a statement reflecting an unauthorized $7,398 charge at the Watch Shop.

Albers contacted his credit card company, M ast ercard, which in turn contacted Electronic Fleet

Systems (“EFS”), the credit card processing center for the Watch Shop. 2 Mastercard requested thatAfter receiving the purchase information, EFS sends t he merchant the money charged and

collects from the issuin g bank. It usually takes two or three days for the merchant to receive the

money charged. If a customer contests a charge, the issuing bank can issue a “chargeback” to EFS.

When the issuing bank sends EFS a chargeback, it provides EFS with a debit along with supporting

documentation contesting the charge. EFS then notifies the merchant of the dispute. The merchant

must either agree to the chargeback or contest it by providing proper documentation of the charge.

If the merchant follows the proper charge procedure, the merchant is paid for the transaction and the

issuing bank is held responsible for the fraudulent or unauthorized transaction.

3 Several other persons also reported unauthorized charges on their credit cards at the Watch

Shop. These additional unauthorized charges all occurred in a similar pattern. It is not clear from

the record, however, who sent the documentation for those charges to EFS.

-3- EFS make a chargeback request. In response to the EFS request, the Watch Shop supplied an

unsigned copy of the credit card draft that had been manually entered into the electronic terminal and

the imprinted sales receipt. EFS did not charge the Watch Shop and Mastercard suffered the loss on

behalf of their customer.

Less than two weeks later, Doil Crabtree received a credit card statement r evealing two

unauthorized charges at the Watch Shop fo r $3,409 and $5,196. The issuing bank again made a

chargeback request to EFS. EFS contacted the Watch Shop and spoke wit h Rivera. Rivera then

supplied both a manually entered credit card draft and a signed sales receipt for both charges. Again,

the issuing bank suffered the loss for the fraudulent purchases. Two other persons, Anthony Harper

and Kenneth Vaughn, subsequently reported similar unauthorized charges on their credit cards at the

Watch Shop. In each instance, Rivera provided EFS with document at ion supporting the charges.

The Watch Shop received payment on these charges as well. 3

Linett Wilkerson, an ac t ual customer of the store, also reported unauthorized charges

originating at the Watch Shop on her account. Wilkerson purchased a watch from the store in

December 1998 for $2,700. She paid $500 in cash and had the remaining $2,200 charged on her-4-

credit card. Swanson, who conducted the sale, asked Wilkerson to sign a blank charge card draft.

Wilkerson pointed out that the charge slip was blank, but signed the form anyway. Wilkerson then

r eceived a credit card statement reflecting an additional $8,000 charge against her account on the

same day as the purchase. Wilkerson disputed the additional charge. After failing several times to

reach Swanson

o ver t he phone, Wilkerson went to the Watch Shop and spoke with Rivera.

Wilkerson told Rivera that she had not made the additional $8,000 purchase and disputed the charge.

Following the conversation, Rivera then supplied EFS with a proof of purchase in the form of a

signed receipt. The signature Rivera provided to support the $8,000 charge exactly matched

Wilkerson’s signature on the blank copy that she used when purchasing the watch at the store. When

Wilkerson and her credit card issuer conference-called the store, Swanson denied ever sending any

documentation to EFS to support the charge. Ultimately, the $8,000 was charged back to the Watch

Shop.

Three months prior to t he Wilkerson charges, the Houston Police Department received a

“Crime Stoppers” report alleging that Swanson was operating in stolen property and credit cards.

John Dziejak, a recove ring co caine and alcohol addict, filed the report with the police. Later, he

admitted that he knew of the illegal activities in the store because he had previously brought stolen

credit cards to Swanson. A few weeks prio r t o co ntacting the police, Dziejak had stolen several

credit cards from James Bates at a methamphetamin e party. Dziej ak brought those cards to the

Watch Shop and gave them to Swanson. Swanson then gave the cards to Rivera. Dziejak first told

Rivera to swipe the card for $1,200. When t his amount was declined, Rivera swiped the card for

$750, which was approved. Rivera then swiped a second card for $500. Dziejak later received a

portion of the fraudulent charges and a gold necklace worth $150.-5-

Dziejak agreed to assist the police by acting as a confidential informer. The Secret Service,

working with the Houston police, obtained three phony credit cards to use in the operati on registered

in the names of Catherine Chi, Oneida Suoto, and Sally Metz. The police then fitted Dziejak with a

transmission device and a wire. Dziejak brought the Chi and Suoto cards t o t he Wat ch Shop on

September 10, 1999. He told Swanson that he had stolen the cards. Swanson ran a charge for $866

on the Chi account and for $784.81 on the Suoto account. Rivera made the manual imprints of the

Suoto charge. The next day, someone at the Watch Shop attempted to make further charges on the

two cards, but they were declined because they exceeded each card’s credit limit.

On September 14, 1999, Dziejak returned to the Watch Shop with the third phony credit card

registered to Sally Metz. Dziejak first asked Swanson to charge an amo unt over the card’s limit.

When this was refused, Swanson tried a lower amount, which was approved. According to Dziejak,

Rivera assisted in the transaction, instructing Rudolfo Ramirez, an employee at the Watch Shop, as

to which credit card to process, as well as reading the authorization code to Swanson.

The following day, Dziejak retu rned t o the Watch Shop to receive his percentage of the

charges. While Dziejak waited, Swanson called someone on the telephone. Swanson told the person

over the phone: “Oh, well, just give

– unint elligible

– a check, man. He ain’t going to ask you. Well

if you’re at the bank now, just go ahead and get some cash. I need to give this guy some money that

we just, uh, did a deal with him.” Swanson made the call shortly after 12:05 P.M. At 12:13 P.M.,

banks records show that Rivera withdrew $850 from one of the Watch Shop’s accounts (Account

#1005391), the same account in which the credit card proceeds from the Chi and Suoto charges had

been deposited. Several days later, Swanson paid Dziejak an additional $325 for the charges made

on the Metz credit card.-6- II

Rivera first challenges the sufficiency of the evidence used to support his conviction for seven

counts of aiding and abetting wire fraud, as well as for conspiracy and aiding and abetting money

l aundering. The standard for evaluating the sufficiency of the evidence is whether a rational jury,

viewing the evidence in the light most favorable to the prosecution, could have found the essential

elements of the offense beyond a reasonable doubt. See Glasser v. United States

, 315 U.S. 60, 80

(1942); see also United States v. Ortega-Reyna

, 148 F.3d 540, 543 (5 th Cir. 1998). When reviewing

the evidence, we draw all reasonable inferences in favor of the jury’s verdict. G lasser

, 315 U.S. at

80. We do not consider whether the jury correctly determined guilt or innocence, but whether the

jury made a rational decision. U ni ted States v. Jaramillo , 42 F.3d 920, 923 (5 t h Cir. 1995).

Nevertheless, if the evidence gives “equal or nearly equal circumstantial support to a theory of guilt

or innocence, we must reverse the conviction, as under these circumstances a reasonable jury must

necessarily entertain a reasonable doubt.” United States v. Garcia-Flores , 246 F.3d 451, 454 (5 th

Cir. 2001) (quoting United States v. Lopez

, 74 F.3d 575, 577 (5 th Cir. 1999)) (emphasis in original)

(citations omitted). Because the wire fraud and money laundering convictions require proof of

distinct elements, we will address each separately.

A

Rivera argues that the evidence is insufficient to support his conviction for seven counts of

aiding and abetting wire fraud (counts 2-8). In order to establish wire fraud, the government must

prove beyond a reasonable doubt that the defendant: (1) engaged in a scheme to defraud and (2) used,4 18 U.S.C. § 1343 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or

for obtaining money or property by means o f false or fraudulent pretenses,

representations, or promises, transmits or causes to be transmitted by means of wire,

radio, or television communication in interstate or foreign commerce, any writings,

signs, signals, pictures, or sounds for the purpose of executing such scheme or

artifice, shall be fined under this title or imprisoned not more than five years, or both.

If the violation affects a financial institution, such person shall be fined not more than

$1,000,000 or imprisoned not more than 30 years, or both.

18 U.S.C. § 1343.

-7- or caused the use of, wire communications in furtherance of that scheme . 18 U.S.C. § 1343. 4 In

order to obtain a conviction for aiding and abetting wire fraud, however, the government does not

have to establish that Rivera actually completed each specific act charged in the indictment. U nited

States v. Ismoila , 100 F.3d 380, 387 (5 th Cir. 1996). Instead, the government only has to establish

that Rivera assisted the actual perpetrator of the wire fraud crimes while sharing the requisite criminal

intent. Id.

A conviction for wire fraud requires proof of the spe cific intent to defraud or deceive. I d.

Proof of such intent, however, can arise “by inference from all o f t he facts and circumstances

surrounding the transaction.” I d. (citing United States v. Keller

, 14 F.3d 1051, 1056 (5 th Cir. 1994)).

Moreover, “once membership in a scheme to defraud is established, a knowing participant is liable

for any wire co mmunication which subsequently takes place or which previously took place in

conne ct ion with the scheme.” U nited States v. Dula

, 989 F.2d 772, 778 (5 th Cir. 1993). Thus, in

order t o convict Rivera for aiding and abetting wire fraud, the jury had to find that he willfully

assisted in Swanson’s wire fraud scheme with the specific intent to defraud and deceive.

Rivera essentially contends that he was unaware that any of the credit cards were stolen or

that Swanson was engaging in any criminal activity. He argues, therefore, that the government failed-8-

to prove that he had the necessary intent to be convicted of aiding and abetting the wire fraud scheme.

The government presented evidence that Rivera was part owner of the Watch Shop and aware

of the operations of the business. The government also provided the jury with testimony establishing

that Rivera was present and actively participated in making fraudulent charges to several credit card

accounts. In one instance, Rivera swiped James Bates’ stolen credit card for an amount for which

authorization was declined. Rivera then immediately swiped the same card at a lower amount and

the charges were aut ho rized. The government also presented evidence that Rivera sent EFS

fraudulent documentation supporti ng t he charges made to Doil Crabtree’s, Anthony Harper’s,

Kenneth Vaughn’s, and Linett Wilkerson’s credit cards. In the last instance, Wilkerson testified that

she spoke with Rivera and informed him that she did not make any charges on her card. Following

this conversation, Rivera still sent the forged documentation to EFS. The jury also heard testimony

that when police executed a search of the store, they found three additional blank, signed drafts

swiped to Wilkerson’s credit cards with a xero x co py of Wilkerson’s signature taped over the

signature line. Finally, the government presented evidence that the undercover transactions were not

isolated events at the shop. In fact, Rudy Ramirez, an employee at the Watch Shop, testified that the

store swiped stolen credit cards once or twice a week.

Rivera’s actions reveal his knowledge of the fact that the credit card transactions were

unauthorized. Placing all the evidence and inferences in the light most favorable to the government’s

case, there is sufficient evidence in the record for the jury to conclude beyond a reasonable doubt that

Rivera had knowledge of the scheme to defraud.

B

Rivera next argues that there was insufficient evidence to suppor t his conviction for both5 18 U.S.C. § 1956 provides, in relevant part:

(a)(1) Whoever, knowin g that the property involved in a financial transaction

represents the proceeds of some form of unlawful activity, conducts or attem pts to

conduct such a financial transaction which in fact involves the proceeds of specified

unlawful activity--

(A)(i) with the intent to prom ote the carrying on of specified unlawful activity

. . . shall be sentenced to a fine of not more than $500,000 or twice the value of the

property involved in the transaction, whi chever is greater, or imprisonment for not

more than twenty years, or both.

18 U.S.C. § 1956(a)(1)(A)(i).

-9- conspiracy to commit money laundering (count one) and for aiding and abetting money laundering

(count nine). In o rder to obtain a conviction for money laundering, the government must prove

beyond a reasonable doubt that “the d efendant 1) conducted or attempted to conduct a financial

transaction, 2) which the defendant knew invo lved the proceeds of unlawful activity, 3) with the

intent [either] to prom ote or further the unlawful activity.” U nited States v. Garza

, 42 F.3d 251, 253

(5 th Cir. 1994) (quotations omitted); 18 U.S.C. § 1956(a). 5 In order to establish that Rivera aided

and abetted money laundering, the government must prove that Rivera “associated himself with the

unlawful financial manipulations, that he participated in them as something he wished to bring about,

and that he sought, by his actions, to make the effort succeed.” U nited States v. Delgado

, 256 F.3d

264, 276 (quoting United States v. Willey

, 57 F.3d 1374, 1383 (5 th Cir. 1995)). Rivera “associates”

himself with the unlawful financial manipulations if he shares the criminal intent of the principal. I d.

Rivera “participates” in those manipulations if he engages in some affirmative conduct designed to

aid the criminal activity. I d. The money laundering conspiracy conviction requires proof that Rivera

knew of the conspiracy and voluntarily joined it intending to conduct a financial transaction with the

proceeds of the credit card fraud to further the wire fraud scheme. Ismoila , 100 F.3d 380 at 387

.

In the indictment, the government alleged that Swanson and Rivera caused $850 of the-10-

proceeds from the wire fraud scheme to be withdrawn from the Bank of Houston. Rivera argues that

the government failed to establish beyond a reasonable doubt that he actually conducted the financial

transaction at issue and that he knew the money in question represented the proceeds of Swanson’s

and his wire fraud activities. In addition, Rivera contends that he did not act with the intent to further

promote the wire fraud scheme.

To support their money laundering allegations, the government first presented the testimony

of its undercover informant, John Dziejak. Dziejak testified that Swanson ran charges on two credit

cards provided by Dziejak as part of the government’s undercover operati on on September 10, 1999.

While in t he st ore, Dziejak witnessed Rivera making manual imprints of both these cards. The

charges on t he two cards totaled $1650.81. The government then presented the Watch Shop’s

financial records, which show the charged amounts on the two cards being electronically credited to

Account #1005391 at the Bank of Houston four days later. Dziejak testified that the following day,

he entered the Watch Shop to receive his share of the fraudulent charges at 12:05 P.M. Dziejak, who

was wearing a concealed recording device, recorded his conversation with Swanson. On the tape,

Swanson was heard making a phone call. He was recorded telling the person over the phone: “Well,

if you’re at the bank now, just go ahead and get some cash. I need to give this guy some money that

we just, uh, did a deal with him.” Swanson then told Dziejak that the money would be there in fortyfive minutes. Swanson stated: “That’s better than waiting for Rudy [Ramirez] to get here, and then

sending Rudy down and back.” The government then provided the jury with the bank withdrawal

receipt, which established that Rivera withdrew $850 from the Bank of Houston at 12:13 P.M., eight

minutes after Dziejak had entered the store and moments after Swanson’s phone conversation.

Again, viewing this evidence in the light most favorable to the prosecution, there is sufficient-11-

evidence for the jury to conclude that Rivera both aided and abetted and conspired to commit money

laundering. First, the evidence establishes that Rivera assisted in processing two stolen credit cards

on September 10, 1999. It then establishes that Rivera withdrew $850 from the Bank of Houston

immediately following his phone conversation with Swanson. The record indicates that during the

phone conversation, Swanson stated that the money was for a person with whom they had just done

a deal. Moreover, the amount Rivera withdrew was almost exactly fifty percent of the fraudulent

charges he had helped to run five days earlier. In addition to this evidence, the jury also heard

testimony about the extensive credit card fraud activities occurring at the Watch Shop on an almost

a daily basis.

In sum, there is ample circumstantial evidence from which the jury could infer that Rivera

actually withdrew the money at issue, that he knew that the $850 he withdrew was the proceeds of

his and Swanson’s illegal wire fraud scheme, and that he also was aware that the $850 would be used

to further the scheme by paying Dziejak his share of the proceeds. Thus, we conclude that sufficient

evidence supports both the jury’s verdicts on both of the money laundering charges.

III

Rivera ne xt claims that the government improperly commented on his post-arrest silence

during its direct examination of Sergeant Larry Doreck. Doreck testified on direct examination that

he interviewed Rivera after his arrest. Doreck further stated that he asked Rivera if he had withdrawn

the $850 from the Bank of Houston. The prosecutor then asked Doreck whether Rivera “answer[ed]

any questions you asked him about the $850.” Doreck replied that Rivera had not answered any of

his questions.

The Supreme Court has held that the Due Process Clause prohibits t he impeachment of a-12-

defendant’s exculpatory story using the defendant’s post- Miranda silence. See Doyle v. Ohio

, 426

U.S. 610, 619 (1976). “A prosecutor’s or witness’s remarks constitute comment on a defendant’s

silence if the manifest intent was to comment on the defendant’s silence, or if the character of the

remark was such that the jury would naturally and necessarily so construe the remark.” U nited States

v. Shaw , 701 F.2d 367, 381 (5 th Cir. 1983).

Ordinarily, we review prosecutorial comments ab out a defendant’s post- M iranda silence

under the doctrine of harmless error by determining whether the error was harmles s beyond a

reasonable doubt. S ee United States v. Moreno

, 185 F.3d 465, 472 (5 th Cir. 1999). Here, however,

Rivera did no t o bject to the prosecutor’s questioning. Thus, our review is limited to plain error.

Garcia-Flores

, 246 F.3d at 457 (explaining that when a defendant fails to object to a prosecutor’s

alleged unconstitutional co mment on a defendant’s silence, review is for plain error). “Plain error

occurs when the error is so obvious and substantial that failure to notice and correct it would affect

the f airness, integrity, or public reputation of judicial proceedings and would result in manifest

injustice.” U

nited States v. Mizell

, 88 F.3d 288, 297 (5 th Cir. 1996). Therefore, in order to overturn

Rivera’s conviction, we must conclude, first that the prosecutor’s comments violated Doyle and, if

so, that our failure to reverse the conviction would result in a manifest injustice.

In this instance, the prosecutor’s comment, which was elicited during direct examination of

a witness, was neither repeated nor directly linked with Rivera’s exculpatory story that the withdrawal

was a legitimate business transaction. Given the evidence of Rivera’s guilt adduced at trial, therefore,

it is at least possible that the prosecutor’s comments on Rivera’s si lence were harmless. S ee

Chapman v. United States

, 547 F.2d 1240, 1250 (5 th Cir. 1977) (“When there is but a single reference

at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s-13-

exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is

otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.”).

Nevertheless, even assuming the prosecutor impermissibly commented on Rivera’s silence,

the single-instance reference did not render the results of the trial manifest ly unjust. The prosecution

fo cused on the fact that Rivera’s signature was on the withdrawal slip and that the wit hdrawal

occurred moments after Swanson’s recorded telephone conversation. Together, thi s evi dence

established beyond a reasonable doubt that Rivera withdrew the $850. In addition, moments before

the withdrawal, Swanson told Rivera over the phone that “I need to give this guy some money that

we just, uh, did a deal with him.” From this statement alone, the jury could infer beyond a reasonable

doubt that Rivera made the withdrawal with the intent to further his an d Swanson’s criminal

enterprise, and that he had knowledge of the wire fraud scheme. Moreover, the prosecution

presented substantial evidence demonstrating Rivera’s involvement in numerous wire fraud

transactions at the Watch Shop.

Given the strength of the government’s evidence establishing that Rivera did, in fact, withdraw

the $850 from the bank with the intent to fur t her the wire fraud scheme and the limit ed context in

which the Doyle v io lat io n supposedly occurred, the failure to correct the error will not result in a

manifest injustice or affect the fairness, integrity, or public reputation of judicial proceedings.

IV

Finally, Rivera challenges the district court’s conclusion that he waived his juror misconduct

claim. Rivera argues that one of the jurors slept through significant portions of his trial. During their

deliberations, the jury sent out a no t e regarding t he alleged “sleeping” juror. The district court

consulted with both the prosecution and Rivera’s attorney

. The district judge stated that she did not-14-

see the juror sleeping. With the approval of Rivera’s attorney, the judge sent the jury a response

stating that they should not concern themselves with the issue. The jury then returned their verdict.

Following the verdict, River a’s at t o rney made a motion for a new trial, claiming that he had an

“unobstruct ed” view o f the juror sleeping. The district court, in a written order, denied Rivera’s

motion, finding first that Rivera had waived his right to object to this misconduct because he did not

raise the issue until after the conclusion of the trial.

We review a district court’s denial of a motion for a new trial for abuse of discretion. S ee

Hansen v. Johns-Manville Prods. Corp.

, 734 F.2d 1036 (5 th Cir. 1984) (examining claims of juror

misconduct). We have repeatedly held that defense counsel must call any juror inattentiveness to the

attenti on of the court when it is first noticed. See

, e.g.

, United States v. Curry , 471 F.2d 419, 422

(5 th Cir. 1973) (holding th at “[d]efense counsel had a duty to call a juror’s inattentiveness to the

court’s attenti on when first noticed. Counsel may not permit juror misconduct or inattentiveness to

go unnoticed, thereby sewing a defect into the trial, and later claim its benefit”) (citations omitted);

United States v. Baker

, 609 F.2d 134, 139 (5 th Cir. 1980) (holding that any juror misconduct claims

were waived when “defendants’ respective counsel did not mention th e po int until the jury had

retired, and did not urge the court to ascertain whether the juror was actually asleep”).

In Rivera’s motion for a new trial, his counsel stated that he had an unobstructed view of the

juror and witnessed the juror periodically closing his eyes. Nevertheless, counsel did not raise this

issue until after the court dismissed two alternate jurors, the trial had concluded, and the jury entered

its verdict. Thus, Rivera has waived his juror misconduct claims. The district court did not abuse

its discretion by denying Rivera’s motion for a new trial.

V-15-

We hold th at sufficient evidence supports the jury’s guilty verdict for the seven counts of

aiding and abetting wire fraud, the single count of aiding and abetting money launderi ng, and the

single count of conspiracy to commit money laundering. In addition, we hold that the prosecutor’s

comments on Rivera’s post- Miranda silence did not constitute plain error. Finally, we hold that the

district court did not abuse its discretion in concluding that Rivera had waived his juror misconduct

claim. For the foregoing reasons, Rivera’s conviction is AFFIRMED.