IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20491

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CRAIG CURTIS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A jury convicted the defendant Craig Curtis of one count of conspiracy to

commit wire fraud, three counts of wire fraud, and two counts of aggravated

identity theft. The district court sentenced him to 144 months in prison. Curtis

alleges five issues on appeal. Finding none to be well-taken, we affirm.

I.

Curtis’s convictions arise out of his participation in a criminal conspiracy

to commit mortgage fraud. We recite the factual details of that conspiracy in the

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2011

Lyle W. Cayce

Clerk

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No. 09-20491

light most favorable to the jury’s verdict. The essence of the conspiracy was an

1

agreement to consummate a series of fraudulent real-estate

transactions—specifically, purchases of condominiums and townhouses in the

midtown area of Houston, Texas. Curtis and others conspired to obtain

mortgage loans in amounts that substantially exceeded the fair market values

of the properties the loans were used to purchase. For each property they

purchased, the conspirators would use a portion of the proceeds of the loan to

pay off the balance of the construction loan or other first-lien mortgage that was

open on the property at the time the conspiracy purchased it. The rest of the

loan proceeds—which would be disbursed to Curtis at each closing—represented

the conspiracy’s profits. Curtis would distribute the profits from each purchase

among each of the coconspirators who had participated in the transaction.

The Government put on evidence at trial that the conspiracy purchased at

least ten properties. However, the Government prosecuted Curtis for completed

wire fraud only as to three of those transactions: purchases of properties located

at 2105 Crocker, 704 Welch, and 4420 Austin (all in Houston). The process by

which the conspiracy purchased these three properties proceeded in six steps.

First, Curtis obtained control of each property. He did so either through

a consulting agreement or a flip transaction. Curtis obtained control of 2105

Crocker and 704 Welch through a consulting agreement he entered into with a

builder. The agreement authorized him to market the properties and required

him to pay a fixed price to the builder ($410,000 for 2105 Crocker and $415,000

for 704 Welch) upon the sale of the properties. If Curtis was able to negotiate a

sale price that exceeded those figures, the consulting agreement allowed him to

keep the difference as a fee for his services. Curtis acquired 4420 Austin

through a flip transaction. Curtis purchased 4420 Austin for $295,000 from a

bank that had foreclosed on it. The very same day he purchased it, he turned

See, e.g., Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). 1

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around and sold it to one of the straw buyers for $445,000. Curtis obtained

payment from the straw buyer before he was required to make payment to the

bank, so he was able to use the money he got from the sale to the straw buyer to

fund his purchase from the bank.

Second, Curtis located a “straw buyer,” the person whose name would be

listed as the purchaser on the loan documents. Curtis recruited two of his

friends, Melvin Holloway and Trevor Cherry, to serve as the straw buyers for

2105 Crocker and 704 Welch, respectively. For the purchase of 4420 Austin,

Curtis used two intermediaries to locate a straw buyer. The intermediaries

recruited a woman named Chi Van Nguyen to serve as that property’s straw

buyer. Because the straw buyers were purchasing the properties with 100

percent financing, they had to have good credit scores (700 or above). Van

Nguyen legitimately had a credit score above 700, so she purchased 4420 Austin

using her own name and Social Security Number (“SSN”). Holloway and Cherry

had poor credit scores, so they enlisted the assistance of a woman named Carlin

Joubert, an identity thief who ran what she called a credit-repair business. For

a substantial fee, Joubert would take an SSN that had been assigned to a minor

and build a phony credit history showing that the SSN was associated with the

straw buyer’s name and that the straw buyer had a good credit score. Holloway

chose to attach his own name to the SSN assigned to a twelve-year-old boy who

lived in Arizona, while Cherry attached the name Deondra LeBlanc to the SSN

assigned to his nine-year-old son.

Third, the conspiracy secured an appraisal stating an inflated value for the

property. Obtaining inflated appraisal reports was a critical leg of the

conspiracy, as the conspiracy was only profitable to the extent that it brought in

loan proceeds in excess of the properties’ fair market values. The Government

2

A mortgage lender will not approve a mortgage loan unless an appraisal report

2

establishes that the property is worth at least as much as the buyer wants to pay for it. The

amount of loan proceeds the conspiracy could bring in from any transaction was thus capped

3

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offered little evidence about how the conspiracy obtained the inflated appraisal

reports, but its evidence left no doubt that the values stated in the appraisal

reports were in fact inflated. As to the values of the properties located at 2105

Crocker and 704 Welch, the government offered the testimony of Joel Rankin,

the Houston real-estate agent who resold both properties on behalf of the lenders

who obtained them from the straw buyers in foreclosure. Rankin testified that,

based on his twenty-three years of experience as a Houston real-estate agent

selling approximately 200 properties a year, it was impossible that either

property had ever been worth what the straw buyers paid for them. As to the

value of 4420 Austin, the government offered documents showing that Curtis

paid $295,000 for the property in an arms-length transaction on the same day

that Chi Van Nguyen purchased the property from Curtis for $445,000. Thomas

Reardon, an assistant vice president at the lending institution that funded the

loan with which Van Nguyen purchased the property from Curtis, testified that

the fact that Curtis had been able to purchase the property for $295,000 on the

open market established it was not worth $445,000.

Fourth, the straw buyer—with assistance from other participants in the

conspiracy—completed a mortgage-loan application. A standard-form mortgageloan application asks the applicant to provide, inter alia, his name, his SSN, the

name of his employer, his annual income, and the amounts of any funds he has

on deposit in accounts at banks or credit unions. Each of the straw buyers lied

in answering one or more of these questions. Melvin Holloway used someone

else’s SSN, overstated his annual income, and claimed he had funds on deposit

at a credit union where he did not have an account. Trevor Cherry used a

fabricated name, used someone else’s SSN, stated that he was employed by an

employer whom he did not work for, and overstated his annual income. Chi Van

Nguyen stated that she was employed by an employer whom she did not work

at the property value listed in the appraisal report.

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for, overstated her annual income, and claimed that funds on deposit with a

bank belonged to her when in fact they belonged to someone else.

Fifth, the straw buyer attended a closing and completed the purchase. At

each of the closings the straw buyers signed the same set of standard-form

documents, including an occupancy affidavit (in which the buyer swears that she

intends to use the property she is purchasing as her primary residence) and a

promissory note (in which the buyer swears that he intends to repay the

principal balance of and interest on the mortgage loan). The evidence at trial

established that at the time they signed these documents, Holloway, Cherry, and

Van Nguyen neither intended to occupy the properties they were purchasing as

their primary residences nor intended to repay the loans they were taking out.

Settlement statements from the closings establish that Curtis received a

payment of $197,853.05 upon the sale of 2105 Crocker to Melvin Holloway; a

payment of $110,918 upon the sale of 704 Welch to Trevor Cherry; and a

payment of $135,686.20 upon the sale of 4420 Austin to Chi Van Nguyen.

Finally, after each transaction was complete, Curtis disbursed portions of

the proceeds he received at the closing to his fellow coconspirators. After

Holloway’s purchase of 2105 Crocker closed, Curtis made payments to Holloway

and the mortgage broker who handled the transaction (who was also a defendant

in this case and pled guilty to conspiring to defraud lenders). Curtis paid Cherry

for his purchase of 704 Welch, and after the sale of 4420 Austin he paid Van

Nguyen and the two men who recruited her to be a straw buyer.

II.

The jury found Curtis guilty on six counts: one count of conspiracy to

commit wire fraud, three counts of wire fraud, and two counts of aggravated

3 4

See generally 18 U.S.C. §§ 1343 & 371.

3

See generally 18 U.S.C. § 1343. 4

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identity theft. On appeal, Curtis raises five challenges to the proceedings

5

below. He contends that (1) the district court should have granted his motion

6

to suppress certain text messages recovered from his cell phone; (2) his right to

be present at all phases of the trial was violated because he was not in the

courtroom when his attorney exercised his peremptory challenges; (3) the district

court abused its discretion by admitting into evidence certain text messages

exchanged between two of Curtis’s coconspirators; (4) the evidence is insufficient

to sustain his convictions; and (5) the district court erred at sentencing when it

applied the organizer/leader sentencing enhancement under § 3B1.1(a) of the

United States Sentencing Guidelines. Each of these challenges is without merit.

A.

Curtis argues that the district court erred when it denied his motion to

suppress two text messages that were recovered during a search of his cell phone

that took place shortly after he was arrested on charges unrelated to the

mortgage-fraud conspiracy. After detailing the factual background of the arrest,

we affirm the district court’s decision to admit the text messages into evidence.

(1)

In May 2007 Curtis made a false statement on a credit application he

submitted to a high-end car dealership where he was attempting to purchase an

Aston Martin. Specifically, Curtis’s credit application listed as his Social

Security Number an SSN that actually belonged to a seven-year-old girl. An

See generally 18 U.S.C. § 1028A. 5

In his brief, Curtis noted that the district court’s copies of the Government’s trial 6

exhibits have been lost and argued that he was prejudiced by this loss because we would be

unable to review the documents admitted at trial. However, the Government subsequently

filed a motion—which we granted—to supplement the record with its own copies of the trial

exhibits. At oral argument, Curtis conceded that this supplementary submission eliminated

any possibility of prejudice. Therefore, we deem this argument to be waived. See generally

Jackson v. Watkins, 619 F.3d 463, 466 n.1 (5th Cir. 2010) (per curiam); United States v.

Amaya, 111 F.3d 386, 388 n.3 (5th Cir. 1997).

6

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internal investigator at the dealership’s bank alerted a Houston-area joint antifraud task force to Curtis’s fraudulent activity. Vincent Edwards, a Secret

Service special agent who was a member of the task force, took charge of the

investigation into Curtis. After verifying that the SSN on the application did not

belong to Curtis, Edwards subpoenaed Curtis’s bank records. Edwards’s review

of Curtis’s bank records led him to believe that Curtis was masterminding a

mortgage-fraud scheme.

In July 2007, Edwards and the task force obtained an arrest warrant from

Harris County on the state-law charge of false statement to obtain credit. The

arrest warrant was not related to Curtis’s participation in the mortgage-fraud

scheme. Edwards and several other task-force members executed the arrest

warrant on Curtis while he was driving. Curtis was talking on his cell phone as

he was pulled over. As the officers pulled Curtis out of his car, he placed his cell

phone on top of the car’s center console. Edwards took the phone out of the car

as Curtis was being arrested and began looking through text messages on the

phone. The officers then drove back to the Secret Service office, initiated

prisoner processing, and attempted to interview Curtis. While Curtis was in the

prisoner-processing area, Edwards resumed looking through the text messages

on Curtis’s phone. He discovered two incoming texts from one of the two men

who recruited Chi Van Nguyen to be the straw buyer for 4420 Austin. In the

messages, the recruiter told Curtis that they needed to pay Van Nguyen $40,000

so that she would serve as a straw buyer in other transactions. After the district

court denied Curtis’s motion to suppress the text messages, the Government

introduced them at trial as evidence of the existence of a conspiracy in which

both the recruiter and Curtis were participants.

(2)

It is undisputed that Edwards did not have a search warrant authorizing

him to search the contents of Curtis’s phone. The district court concluded that

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the search was nonetheless constitutional because it took place incident to a

lawful arrest. We review that legal conclusion de novo.

7

Although the Fourth Amendment generally prohibits warrantless

searches, “[i]t is well settled that ‘in the case of a lawful custodial arrest a full

search of the person is not only an exception to the warrant requirement of the

Fourth Amendment, but is also a “reasonable” search under that Amendment.’”

8

Incident to a lawful arrest, the police may search: the arrestee’s person; any

items or containers that were located on the arrestee’s person at the time of the

arrest; and any items or containers that were located within the arrestee’s

reaching distance at the time of the arrest. A search is incident to an arrest for

9

“as long as the administrative processes incident to the arrest and custody have

not been completed.” In other words, a search that could have been “made on

10

the spot at the time of arrest may legally be conducted later when the accused

arrives at the place of detention.”

11

In United States v. Finley, we held that the police can search the contents

of an arrestee’s cell phone incident to a valid arrest. In Finley, the police

arrested the defendant after a reverse-sting drug sale. They searched his person

following the arrest and seized a cell phone they found in his pocket. The police

then transported the defendant to a different location for questioning. During

the questioning, the arresting officer scrolled through the text messages on the

defendant’s phone. The officer discovered some incriminating text messages that

See, e.g., United States v. Chavez, 281 F.3d 479, 483 (5th Cir. 2002).

7

United States v. Finley, 477 F.3d 250, 259 (5th Cir.) (quoting United States v. 8

Robinson, 414 U.S. 218, 235 (1973)), cert. denied, 549 U.S. 1353 (2007).

Id. at 260 (collecting cases).

9

Id. at 260 n.7 (citing United States v. Edwards, 415 U.S. 800, 804 (1974)).

10

Edwards, 415 U.S. at 803.

11

8

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were admitted against the defendant at trial. We concluded that the search of

12

the cell phone’s contents was incident to the defendant’s arrest and affirmed the

decision not to suppress the text messages. The Fourth, Seventh, and

13 14 15

Tenth Circuits have reached the same conclusion on similar facts.

16

Finley forecloses Curtis’s argument that the district court should have

suppressed the text messages that were recovered from his phone. Curtis

concedes that he was arrested pursuant to a valid Texas arrest warrant and that

Edwards recovered the phone from an area that was within Curtis’s reaching

distance at the time he was arrested. It is also undisputed that Curtis was still

being processed when Edwards scrolled through the text messages.

In his brief, Curtis argued that the district court’s decision conflicts with

the Supreme Court’s holding in Florida v. Wells that “an inventory search must

not be a ruse for a general rummaging in order to discover incriminating

evidence.” But this was not an inventory search. The police were not

17

cataloguing the items found in portions of Curtis’s car outside of his reach. The

18

search extended only to Curtis’s person and the area within his immediate

Finley, 477 F.3d at 24. 12

Id. at 259–60. 13

United States v. Murphy, 552 F.3d 405, 410 (4th Cir.), cert. denied, 129 S. Ct. 2016 14

(2009); United States v. Young, 278 F. App’x 242, 245 (4th Cir. 2008) (per curiam)

(unpublished).

United States v. Pineda-Areola, 372 F. App’x 661, 663 (7th Cir. 2010) (unpublished);

15

see also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996).

Silvan W. v. Briggs, 309 F. App’x 216, 225 (10th Cir. 2009) (unpublished).

16

495 U.S. 1, 4 (1990) (suppressing evidence that the police discovered during an 17

inventory search by forcing open a locked suitcase they found in the trunk of a car driven by

a defendant who had been arrested for driving under the influence).

See generally Whren v. United States, 517 U.S. 806, 811 n.1 (1996) (“An inventory 18

search is the search of property lawfully seized and detained, in order to ensure that it is

harmless, to secure valuable items (such as might be kept in a towed car), and to protect

against false claims of loss or damage.”).

9

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control. Finley authorizes a police officer to search the electronic contents of a

cell phone recovered from the area within an arrestee’s immediate control.

19

At oral argument, Curtis argued that Edwards’s search of Curtis’s cell

phone was unlawful under the new rule announced by the Supreme Court in

Arizona v. Gant. In Gant, the Court held that police may “search a vehicle

20

incident to a recent occupant’s arrest only when the arrestee is unsecured and

within reaching distance of the passenger compartment at the time of the

search.” Our sister circuits have divided over whether Gant applies solely in

21

the vehicular-search context or whether it generally limits the scope of the

search-incident-to-arrest exception. We need not reach this question. Even

22 23

See Chimel v. California, 395 U.S. 752, 763 (1969) (explaining that the police’s 19

authority to search an arrestee’s person and their authority to search the area within the

arrestee’s reaching distance “must, of course, be governed by a like rule.”).

 129 S. Ct. 1710 (2009).

20

Id. at 1719. 21

Compare United States v. Brewer, 624 F.3d 900, 905–06 (8th Cir. 2010) (declining 22

to apply Gant to a search of an arrestee’s person), petition for cert. filed, No. 10-9224 (Feb. 24,

2011), and United States v. Perdoma, 621 F.3d 745, 751–52 (8th Cir. 2010) (declining to apply

Gant to a search of a bag recovered from an area within the arrestee’s immediate control),

petition for cert. filed, No. 10-8844 (Feb. 2, 2011), with United States v. Shakir, 616 F.3d 315,

318 (3d Cir.) (“Because Gant involved an automobile search, and because it interpreted Belton,

another automobile case, the Government contends that the rule of Gant applies only to

vehicle searches. We do not read Gant so narrowly. The Gant Court itself expressly stated its

desire to keep the rule of Belton tethered to the justifications underlying the Chimel exception,

and Chimel did not involve a car search.” (internal citation and quotation marks omitted)),

cert. denied, 131 S. Ct. 841 (2010).

See United States v. Leon, 468 U.S. 897, 924–25 (1984) (emphasizing the lower courts’

23

considerable discretion to reject suppression motions solely on good-faith grounds, without

reaching the underlying Fourth Amendment question); United States v. Davis, 598 F.3d 1259,

1265 (11th Cir.) (“We consider constitutional violations and remedies separately in the Fourth

Amendment context . . . .”), cert. granted, 131 S. Ct. 502 (2010). See generally United States

v. Emerson, 270 F.3d 203, 272 (5th Cir. 2001) (Parker, J., specially concurring) (“As federal

judges it is our special charge to avoid constitutional questions when the outcome of the case

does not turn on how we answer. ‘If there is one doctrine more deeply rooted than any other

in the process of constitutional adjudication, it is that we ought not to pass on questions of

constitutionalityunless suchadjudication is unavoidable.’” (internal citation, parentheses, and

ellipsis omitted) (quoting Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944))).

10

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assuming for the sake of argument that Gant would have prohibited Edwards’s

search of Curtis’s cell phone, we would decline to suppress the text messages

under the exclusionary rule’s good-faith exception.

The good-faith exception to the exclusionary rule provides that evidence

obtained from an unconstitutional search need not be suppressed “when the

offending officers acted in the objectively reasonable belief that their conduct did

not violate the Fourth Amendment.” Although the good-faith exception most

24

frequently operates to avoid suppression of evidence obtained in reasonable

reliance on a facially valid search warrant, in United States v. Jackson this

Court—sitting en banc—held that the good-faith exception also applies to a

search that was legal at the time it was conducted but has been rendered illegal

by an intervening change in the law. Where “[p]anels of this court have upheld

25

searches” of a particular type and that type of search is later held

unconstitutional, “‘excluding the evidence will not further the ends of the

exclusionary rule in any appreciable way.’”

26

Three other circuits have declined to use the rule announced in Gant to

justify suppressing evidence recovered in searches that took place before the

date on which Gant was decided. Jackson dictates that we follow their lead.

27

Leon, 468 U.S. at 918.

24

See 825 F.2d 853, 866 (5th Cir. 1987) (en banc) (“[T]he exclusionary rule should not 25

be applied to searches which relied on Fifth Circuit law prior to the change of that law . . . .”).

Id. (quoting Leon, 468 U.S. at 920 (brackets omitted)); see also United States v. 26

Buford, —F.3d—, No. 09-5737, 2011 WL 447048, at *9 (6th Cir. Feb. 10, 2011) (“The fact that

appellate precedent is later overturned is not enough to justify suppression, since the

‘exclusionary rule is designed to deter police misconduct rather than to punish the errors of

judges’ . . . .” (quoting Leon, 468 U.S. at 916)). 

See Buford, 2011 WL 447048, at *9 (“[E]xclusion is not the appropriate remedy when 27

an officer reasonably relies on a United States Court of Appeals’ well-settled precedent prior

to a change of that law.”); United States v. McCane, 573 F.3d 1037, 1045 (10th Cir. 2009)

(“[T]his court declines to apply the exclusionary rule when law enforcement officers act in

objectively reasonable reliance upon the settled case law of a United States Court of

Appeals.”), cert. denied, 130 S. Ct 1686 (2010); Davis, 598 F.3d at 1264 (“[T]he exclusionary

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At the time that Edwards conducted his search, Finley clearly established that

an officer who had effected a lawful arrest did not need a search warrant to

search through the text messages found on a phone recovered from the area

within the arrestee’s reaching distance. Based solely on the state of the law at

the time of the search, we affirm the denial of Curtis’s motion to suppress.

28 29

B.

Curtis next argues that he was not present when his attorney exercised

his peremptory challenges and that his absence prevented him from instructing

his attorney to strike two venire members who had been victims of credit-card

fraud. Because Curtis’s attorney did not object to Curtis’s absence before

submitting his peremptory challenges, we review this issue only for plain error.

30

Federal Rule of Criminal Procedure 43 codifies the requirement of the

Sixth and Fifth Amendments that a criminal defendant must be present at every

stage of his trial, “including jury impanelment.” The defendant’s right to

31

rule does not apply when the police conduct a search in objectively reasonable reliance on our

well-settled precedent, even if that precedent is subsequently overturned.”). But see United

States v. Gonzalez, 578 F.3d 1130, 1132 (9th Cir. 2009) (suppressing evidence recovered during

a pre-Gant search that was lawful under then-controlling precedent), petition for cert. filed,

No. 10-82 (July 14, 2010). We are aware that the Supreme Court granted certiorari in Davis

to address precisely this question. Unless and until the Court instructs otherwise, we are

bound to apply this Circuit’s binding precedent in Jackson.

See Buford, 2011 WL 447048, at *9 n.9 (“‘[O]ur precedent on a given point must be 28

unequivocal before we will suspend the exclusionary rule’s operation.’” (quoting Davis, 598

F.3d at 1266)).

We express no opinion on the scope of the rule announced in Gant, the continuing 29

viability of Finley post-Gant, or the interaction between Gant and Edwards, compare supra

notes 10–11 and accompanying text, with Gant, 129 S. Ct. at 1723 (“Police may search a

vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance

of the passenger compartment at the time of the search or it is reasonable to believe the vehicle

contains evidence of the offense of arrest.” (emphasis added)).

See, e.g., United States v. Wilson, 355 F.3d 358, 362 (5th Cir. 2003) (citing FED. R. 30

CRIM. P. 52(b)).

 FED. R. CRIM. P. 43(a)(2). 31

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presence extends to portions of the proceedings not covered by the Confrontation

Clause “‘to the extent that a fair and just hearing would be thwarted by his

absence, and to that extent only.’” One purpose of the right to presence is to

32

protect the defendant’s exercise of his peremptory challenges, which means the

defendant “should be allowed to obtain as much first hand information as

feasible to facilitate his ability to participate in the selection of a jury.”

33

The right to presence imposes two requirements on the exercise of

peremptory challenges. First, the defendant must be present for the substantial

majority of the jury-selection process. Second, the defendant must be present

34

in the courtroom at the moment when the court gives the exercise of peremptory

challenges formal effect by reading into the record the list of jurors who were not

struck. Where these requirements are satisfied, a defendant’s right to presence

35

United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Snyder v. Massachusetts,

32

291 U.S. 97, 108 (1934)).

United States v. Washington, 705 F.2d 489, 497 (D.C. Cir. 1983) (per curiam). 33

See United States v. Alikpo, 944 F.2d 206, 207 (5th Cir. 1991) (holding that it is error 34

to conduct “most of the jury selection process in the absence of the defendant”); see also

Washington, 705 F.2d at 497 (“[T]he right of the defense to exercise peremptory challenges,

which ordinarily is exercised by counsel, can require direct consultation with the defendant

and something more than second hand descriptions of the prospective jurors’ responses to

questions during voir dire.”); cf. United States v. Fontenot, 14 F.3d 1364, 1369–70 (9th Cir.

1994) (rejecting a Rule 43(a) challenge brought by a defendant who “was absent from the

peremptory challenge conference” on the ground that the defendant “was present for the jury

voir dire” and “had the opportunity to discuss his misgivings with counsel during and

immediately following voir dire, prior to exercising his peremptory challenges”).

See, e.g., Cohen v. Senkowski, 290 F.3d 485, 490 (2d Cir. 2002) (holding that the 35

constitutional right to be present is satisfied so long as the defendant “is given an opportunity

to register his opinions with counsel after juror questioning and is present when the exercise

of strikes is given formal effect,” even if the defendant is not present when his lawyer actually

exercises the peremptory challenges); United States v. Gayles, 1 F.3d 735, 738 (8th Cir. 1993)

(holding that the defendant’s right to presence was not violated where the defendant had been

present in the courtroom while the venire members were questioned, notwithstanding the fact

that the defendant “was absent later when his attorney made his strikes over the lunch hour,”

because the defendant “was present in the courtroom when the clerk gave the strikes effect

by reading off the list of jurors who had not been stricken”); United States v. Bascaro, 742 F.2d

1335, 1349–50 (11th Cir. 1984) (holding “that the defendants were not denied their right to be

present during the peremptory strike phase of jury selection” where they were present during

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is not violated by a short absence during one portion of jury selection.

In this case, the district court did not err—much less plainly err—in its

conduct of the jury-selection process. The record reveals that Curtis was present

for virtually all of jury selection: he was in court when it began and remained

there throughout the process—including for the questioning of the venire panel,

counsel’s exercise of challenges for cause, and the court’s allocation of

peremptory challenges to the two sides—until a just few moments before the

court recessed for lunch. No substantial proceedings took place between the

time Curtis left the courtroom and the beginning of the lunch recess. Curtis’s

attorney did not submit his peremptory challenges until the proceedings had

reconvened after lunch. Curtis does not contend that he was absent from the

courtroom at that time; his argument focuses entirely on what happened before

the lunch recess. He thus concedes that he was present when the peremptory

36

challenges were given formal effect via the impaneling of the jury. Nor does

Curtis contend that he was deprived of the opportunity to consult with his

attorney before his attorney submitted the peremptory challenges. These facts

evince no violation of Curtis’s right to be present at every stage of his trial.

C.

Curtis also contends that the district court erred by admitting transcripts

of several text messages sent by Viktor Ly (an indicted coconspirator who was

one of the two men who helped recruit Chi Van Nguyen to be the straw buyer of

voir dire, had a chance to confer with counsel before the jury was impaneled, and were present

in the courtroom “when the peremptory strikes were given actual effect by the clerks’ reading

off the list”), abrogated in part on other grounds by United States v. Lewis, 492 F.3d 1219 (11th

Cir. 2007) (en banc).

Nor is there anything in the record to suggest that Curtis was absent when court

36

reconvened after lunch. Indeed, as the Government points out, the district court turned

directly from impaneling the jury to giving jury instructions, hearing opening statements, and

receiving testimony from the first witness. At no point during any of those proceedings is

there any indication that Curtis is not present in the courtroom.

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4420 Austin) to a woman named Vi Lien Dong. Dong is an unindicted

coconspirator who served as the straw buyer for two transactions not at issue on

this appeal. Ly told Dong that he would pay the mortgages on the two properties

that Dong purchased in those transactions. When he failed to do so, Dong

threatened to go to the authorities. In response, Ly sent Dong four angry text

messages imploring her not to go to the authorities and warning her that she

would make legal trouble for herself if she did. Several months later, Ly sent

Dong a final text message in which he laments her decision to tell the Secret

Service about the mortgage transactions. At trial, the Government offered the

text messages over Curtis’s objection as proof of the existence of the conspiracy

and as statements made in furtherance of the conspiracy.

Curtis objected to the text messages as unduly prejudicial under Federal

Rule of Evidence 403. Rule 403 provides that otherwise relevant evidence “may

be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice.” On appeal, Curtis argues that the text messages’ probative

value was substantially outweighed by their unfairly prejudicial effect because

they contain vulgar, angry, threatening, and inculpatory language.

Properly preserved evidentiary objections are reviewed for an abuse of

discretion. However, the standard for assigning error under Rule 403 is

37

“‘especially high’” and requires a showing of a “‘clear abuse of discretion.’” Rare

38

is the appellant who can make that showing. Because “all probative evidence is

by its very nature prejudicial” and the Federal Rules of Evidence “embody a

39

E.g. United States v. Williams, 620 F.3d 483, 488 (5th Cir. 2010), cert. denied, —S.

37

Ct.—, 2011 WL 589399 (Feb. 22, 2011).

United States v. Sester, 568 F.3d 482, 495 (5th Cir.) (quoting United States v. Fields,

38

483 F.3d 313, 354 (5th Cir. 2007)), cert. denied, 130 S. Ct. 437 (2009).

United States v. Powers, 168 F.3d 741, 749 (5th Cir. 1999).

39

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strong and undeniable preference” in favor of admitting probative evidence,

40

district courts should exclude evidence under Rule 403 in very few

circumstances.

41

Curtis has not shown that the district court erred in its application of the

Rule 403 balancing test. The probative value of the text messages was high.

“[A]cts of concealment done in furtherance of the main criminal objectives of the

conspiracy” are circumstantial evidence of the conspiracy’s existence. Where,

42

as here, “[t]he central aim of the conspiracy extended to concealing the

fraudulent nature of the transaction,” then the concealment is “‘a necessary part

of a conspiracy, so that statements made solely to aid the concealment are in fact

made during and in furtherance of the charged conspiracy.’” Ly’s statements

43

imploring Dong not to go to the authorities were highly probative of the

existence of the conspiracy because they show one of Curtis’s admitted

coconspirators attempting to facilitate the conspiracy’s continued operation by

keeping it concealed. In addition, the risk of unfair prejudice was low. The fact

44

Deluca ex rel. Deluca v. Merrell Dow Pharm., Inc., 911 F.2d 941, 956 (3d Cir. 1990), 

40

disapproved of on other grounds by Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

See also Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 427 (5th Cir. 2006) 41

(“‘Unfair prejudice’ as used in rule 403 is not to be equated with testimony that is merely

adverse to the opposing party. Virtually all evidence is prejudicial; otherwise it would not be

material. The prejudice must be ‘unfair.’” (quoting Dollar v. Long Mfg., N.C., Inc., 561 F.2d

613, 618 (5th Cir. 1977))).

Grunewald v. United States, 353 U.S. 391, 405 (1957); see also United States v. Evans,

42

572 F.2d 455, 468 (5th Cir. 1978) (explaining that because concealment is one of “the

hallmarks of a conspiracy, . . . the objective and observable acts of the conspirators are

relevant and competent circumstantial evidence from which the jury may draw the inference

of the existence of the agreement or common purpose”).

United States v. Mann, 161 F.3d 840, 859 (5th Cir. 1998) (quoting United States v. 43

Del Valle, 587 F.2d 699, 704 (5th Cir. 1979)); see also id. (“[I]n some cases ‘the successful

accomplishment of the crime necessitates concealment.’” (quoting Grunewald, 353 U.S. at

405)).

Curtis does not dispute that the text messages were admissible as the statements of 44

a coconspirator under Federal Rule of Evidence 801(d)(2)(E).

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that Ly swore several times and made self-incriminating statements in the text

messages was unlikely cause the jury to ignore the evidence and convict Curtis

on an emotional basis. The district court did not err under Rule 403 by

45

admitting the text messages into evidence.

D.

Next, Curtis contends that the evidence was insufficient to sustain his

convictions. Curtis preserved his sufficiency objection by moving for a judgment

of acquittal at the close of the evidence, so our review is de novo. We determine

46

whether the evidence was sufficient by viewing all of it in the light most

favorable to the verdict and asking “whether a rational trier of fact could have

found that the evidence established the essential elements of the offense beyond

a reasonable doubt.” “This Court reviews jury verdicts with great deference”

47

and “affords the government the benefit of all reasonable inferences and

credibility choices.” Curtis advances two separate challenges to the sufficiency

48

of the evidence used to convict him. Neither has merit.

(1)

As to his wire-fraud and aggravated-identity-theft convictions, Curtis

contends that the evidence was insufficient to establish that he made a false or

fraudulent material misrepresentation. Specifically, Curtis argues that the

49

See generally FED. R. EVID. 403 advisory committee’s note. 45

See, e.g., United States v. Shum, 496 F.3d 390, 391 (5th Cir. 2007).

46

Id. 47

United States v. McCauley, 253 F.3d 815, 818 (5th Cir. 2001) (citation, internal 48

quotation marks, and brackets omitted). 

A false or fraudulent material misrepresentation is an element of the offense of wire 49

fraud—wire fraud requires proof (1) of a scheme to defraud; (2)thatthe scheme employed false

or fraudulent material misrepresentation; and (3) that the scheme utilized an interstate wire

communication. See 18 U.S.C. § 1343; Neder v. United States, 527 U.S. 1, 25 (1999); United

States v. Stalnaker, 571 F.3d 428, 436 (5th Cir. 2009). In turn, proof that Curtis committed

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Government failed to establish that the appraisal reports the conspiracy used to

secure financing for the three properties contained false or inflated estimates of

the properties’ values. Curtis’s argument is premised on the assumption that

the only evidence the Government submitted of the properties’ true fair-market

values was Harris County Appraisal District (“HCAD”) tax valuations. Curtis

is correct that under Texas law, tax valuations are legally insufficient evidence

of fair-market value. However, Curtis is incorrect that the HCAD tax

50

valuations were the Government’s only evidence that the appraisal reports

fraudulently misrepresented the values of the three properties. As discussed

above, the Government also offered the testimony of Joel Rankin, a veteran

Houston real-estate agent, and Thomas Reardon, a vice president at a mortgage

lender,to establish that the conspirators submitted appraisal reports that vastly

overstated the values of 2105 Crocker, 704 Welch, and 4420 Austin. Reardon’s

and Rankin’s testimony is sufficient evidence that the true fair-market values

of the three properties in question were substantially lower than the values

listed in the appraisal reports and that the appraisal reports thus contained

false or fraudulent misrepresentations.

Even if Curtis were correct that the HCAD tax valuations were the

Government’s only evidence that the conspiracy fraudulently misrepresented the

properties’ value,the evidence would still be sufficient to support his convictions.

The Government was not specifically obligated to prove that the values stated

in the appraisal reports were falsified or inflated. Rather, it had to prove that

Curtis made some kind of a false or fraudulent material misrepresentation in

the offense of wire fraud is an element of the offense of aggravated identity theft. See 18

U.S.C. § 1028A(a)(1); Flores-Figueroa v. United States, 129 S. Ct. 1886, 1888 (2009).

See, e.g., Dallas Cnty. Bail Bond Bd. v. Black, 833 S.W.2d 247, 249 (Tex. 50

App.—Dallas 1992, no writ) (“The value placed upon real property for tax assessment

purposes, without participation of the landowner, is not evidence of its value for purposes

other than taxation. The evidence is considered hearsay and cannot support a finding of fact

even without objection at trial.” (internal citations omitted)).

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service of a scheme to defraud. And its evidence that the scheme employed

material misrepresentations was overwhelming.

The loan applications for these three properties were littered with false,

material misrepresentations. For instance, all three buyers represented that

they intended to repay the loans when in fact they did not, that they intended

to use the properties as their primary residences when in fact they lived

elsewhere, and that they earned substantially more income than they actually

earned. Even putting aside the inflated appraisal reports, each loan application

contained at least five false misrepresentations, and the Government offered

evidence that all were material to the lenders’ decisions to fund the loans.

51

Because Curtis is criminally responsible for these misrepresentations, we

52

conclude that the Government carried its burden of proving that Curtis made

false or fraudulent material misrepresentations as part of a scheme to commit

interstate wire fraud.

(2)

As to his conviction of conspiracy to commit wire fraud, Curtis contends

that the evidence was insufficient to establish that he knowingly and voluntarily

joined and participated in the conspiracy. Here, too, the evidence to the

53

“In general, a false statement is material if it has a natural tendency to influence, or 51

is capable of influencing, the decision of the decisionmaking body to which it was addressed.” 

Neder, 527 U.S. at 16 (citation, internal quotation marks, and brackets omitted).

Representatives from each of the lending institutions that funded the straw buyers’ loans

testified that had they known these representations in the loan documents were false, they

would not have approved the loans.

Where, as here, the jury charge included an aiding-and-betting instruction, the 52

Government need only establish that the defendant “‘assisted the actual perpetrator of the

wire fraud crimes while sharing the requisite criminal intent.’” Stalnaker, 571 F.3d at 437

(quoting United States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002)).

To convict Curtis of conspiracy to commit wire fraud, the Government was required 53

to prove that (1) Curtis and at least one other person made an agreement to commit the crime

of wire fraud; (2) at least one of the conspirators knowingly took an overt act in furtherance

of that agreement during the existence of the conspiracy; and (3) Curtis acted with the specific

intent to join the conspiracy and commit wire fraud. See 18 U.S.C. § 371; United States v.

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contrary is overwhelming. It is well-settled that “[c]ircumstantial evidence may

establish the existence of a conspiracy, as well as an individual’s voluntary

participation in it.” A jury is free to “infer the existence of a conspiracy from

54

the presence, association, and concerted action of the defendant with others.”

55

The defendant’s knowing and voluntary participation in the conspiracy can even

be established “solely on the basis of the testimony of a coconspirator . . . so long

as that testimony is not incredible as a matter of law.”

56

The Government introduced a raft of circumstantial evidence showing that

Curtis was an active and willing member of the conspiracy. The evidence

adduced at trial established that Curtis was in charge of divvying up the

conspiracy’s proceeds among his fellow conspirators and that he himself received

the lion’s share of those proceeds. Curtis recruited two of the straw buyers,

hired the two recruiters who eventually located the third straw buyer, and

supervised the recruiters’ dealings with the third straw buyer. Curtis helped the

straw buyers obtain stolen SSNs and forged identification documents. He filled

out portions of their loan applications. He recruited a mortgage broker and an

identity thief to join the conspiracy, worked with them to falsify various loan

documents, and instructed the straw buyers to deal only with that mortgage

broker. The common element linking all of the transactions that constituted the

conspiracy was Curtis’s participation and direction. The evidence was easily

sufficient to allow the jury to find that Curtis was a knowing and voluntary

participant in the conspiracy.

Stephens, 571 F.3d 401, 404 (5th Cir. 2009); United States v. Ingles, 445 F.3d 830, 838 (5th Cir.

2006); United States v. Gray, 96 F.3d 769, 772–73 (5th Cir. 1996). 

United States v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998). 

54

United States v. Gonzales, 121 F.3d 928, 935 (5th Cir. 1997), abrogated on other 55

grounds by United States v. O’Brien, 130 S. Ct. 2169, 2180 (2010), as noted in United States

v. Johnson, 398 F. App’x 964, 968 (5th Cir. 2010) (per curiam) (unpublished).

Garcia Abrego, 141 F.3d at 155.

56

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E.

Finally, Curtis argues that the district court erred by enhancing his

sentence pursuant to § 3B1.1(a) of the Sentencing Guidelines. Section 3B1.1(a)

provides for a four-level increase to the total offense level of a defendant who

“was an organizer or leader of a criminal activity that involved five or more

participants.” The district court’s determination that the role Curtis played was

that of a leader or organizer of the conspiracy is a finding of fact that we review

for clear error.

57

The commentary to the Guidelines enumerates seven factors that indicate

that a defendant served as an organizer or leader of a criminal conspiracy:

the exercise of decision making authority, the nature of

participation in the commission of the offense, the recruitment of

accomplices, the claimed right to a larger share of the fruits of the

crime, the degree of participation in planning or organizing the

offense, the nature and scope of the illegal activity, and the degree

of control and authority exercised over others.

58

The defendant need not have supervised each and every coconspirator: “Proof

that the defendant supervised only one other culpable participant is sufficient

to make the defendant eligible for the enhancement.” In the context of a

59

criminal mortgage-fraud conspiracy, we held in United States v. Cooks that

application of the organizer/leader enhancement is appropriate where the

defendant located the properties that were the subject of the conspiracy,

 See, e.g., United States v. Cabrera, 288 F.3d 163, 173 (5th Cir. 2002) (per curiam). 57

There are two parts to the § 3B1.1(a) enhancement: the defendant’s conduct and the number

of participants. A participant is a person who is criminally responsible for the commission of

the offense, even if not convicted. See U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. n.1

(2010). The district court found that there were five or more participants in the conspiracy.

Curtis does not challenge that finding on appeal.

 U.S. SENTENCING GUIDELINES MANUAL § 3B1.1 cmt. n.4 (2010).

58

United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001). 

59

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recruited other participants, oversaw the production of forged documents, and

received the bulk of the profits.

60

The seven factors enumerated in the Guidelines’ commentary and the

reasoning of Cooks both lend strong support to the district court’s decision to

apply the § 3B1.1(a) enhancement. The same evidence introduced at trial to

establish that Curtis was a knowing and voluntary participant in the conspiracy

also establishes that his was an organizing or leading role. Further, the

61

district court made specific findings of fact at sentencing that Curtis received the

largest share of the conspiracy’s profits and actively recruited several

accomplices. These findings were amply supported by the record. The district

court was correct to find that Curtis organized and led the conspiracy and to

enhance his sentence under § 3B1.1(a) of the Guidelines.

III.

For the reasons discussed above, we affirm Curtis’s convictions and

sentence in all respects.

 589 F.3d 173, 185 (5th Cir. 2009), cert. denied, 130 S. Ct. 1930 (2010). 60

See supra subsection II(D)(2). 61

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