Filed: Dec. 17, 2009
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 17, 2009 No. 08-20458 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff - Appellee v. DEANDREA S WADE; ERIC AMOAKO Defendants - Appellants _ Consolidated w/ Case No. 08-20508 UNITED STATES OF AMERICA Plaintiff - Appellee v. DIANNE WINZER Defendant - Appellant Appeals from the United States District Court for the Southern District of Texas, Houston 4:07-CR-00351-4
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED December 17, 2009 No. 08-20458 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff - Appellee v. DEANDREA S WADE; ERIC AMOAKO Defendants - Appellants _ Consolidated w/ Case No. 08-20508 UNITED STATES OF AMERICA Plaintiff - Appellee v. DIANNE WINZER Defendant - Appellant Appeals from the United States District Court for the Southern District of Texas, Houston 4:07-CR-00351-4 ..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2009
No. 08-20458 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DEANDREA S WADE; ERIC AMOAKO
Defendants - Appellants
_______________________________________________________________
Consolidated w/
Case No. 08-20508
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DIANNE WINZER
Defendant - Appellant
Appeals from the United States District Court for the
Southern District of Texas, Houston
4:07-CR-00351-4
ON PETITION FOR REHEARING
Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.
No. 08-20458
PER CURIAM:*
IT IS ORDERED that the petitions for rehearing filed by each appellant
are DENIED and the following opinion is substituted for our opinion filed
November 11, 2009.
Defendant-Appellants: Eric Amoako, Dianne Winzer, and Deandrea
Wade, were indicted in the district court for conspiracy to commit mail fraud, in
violation of 18 U.S.C. §§ 371 and 1341 (Count I); conspiracy to launder funds, in
violation of 18 U.S.C. § 1956(h) (Count II); and several individual counts of mail
fraud in violation of 18 U.S.C. §§ 2 and 1341 (Counts III-XX). The jury returned
a guilty verdict on all counts as to Amoako and Winzer, but only convicted Wade
on Counts I, II, XVI, and XVII (charging conspiracy to commit mail fraud,
conspiracy to commit money laundering, and two individual counts of mail
fraud). On appeal, all three appellants argue both that the district court erred
in excluding the testimony of two mental health experts, and that the indictment
was defective for failure to sufficiently allege the mens rea of the offense charged
in Count II. Additionally, Wade appeals the district court’s denial of her Rule
29 motion, arguing that the evidence was insufficient to sustain her convictions
on Counts I, II, XVI, and XVII.
I.
The gravamen of the Government’s case against the three co-
defendants consisted of testimony given by two of the defendants’ co-
conspirators, Theresa Williams and Sandra Johnson. Prior to January, 2006,
Theresa Williams owned accident injury clinics in Houston, Texas, and
Sandra Johnson was an adjuster in the Houston Workers’ Compensation
Claim Center of the Hartford Insurance Company (Hartford). In January,
*
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.
2
No. 08-20458
2006, Johnson began issuing checks from Hartford to Williams’s clinics in
Houston—for services not actually rendered. Initially, Johnson and Williams
split these proceeds in half, equally amongst the two women. Later, when the
two incorporated other co-conspirators into their scheme, they decided they
would split the fraudulently issued checks three ways between Johnson,
Williams, and whichever co-conspirator owned the address purported to be a
“clinic.” In total, Johnson caused 188 checks to be issued by Hartford from
January, 2006, to June, 2006, to fake clinics—amounting to approximately
$1,717,000.00.
During the trial, Williams testified that prior to the conception of the
charged conspiracy, the first named appellant, Amoako, had been her
“boyfriend, [her] business partner, [and her] best friend.” Amoako was a
personal injury lawyer, and Williams and Amoako had previously arranged a
business agreement by which Williams would send Amoako patients from her
clinic and Amoako would send his injured clients to Williams’ clinic. At trial,
Johnson testified that she first approached Amoako about joining their money
laundering/mail fraud conspiracy.
According to Johnson’s testimony, Amoako and Johnson agreed that
Johnson would send checks payable to Gulfway Medical and Rehab Center, a
Port Arthur clinic that Amoako owned. Thus, the two agreed that Johnson
and Williams would each get a percentage of the Hartford insurance money
that Johnson caused to be sent to Amoako’s defunct clinic. Amoako disputes
the credibility of Johnson’s and Williams’ testimonies, and instead, contends
he was oblivious to the fraud and thought Johnson and Williams were billing
for services actually rendered.
Williams also testified that Winzer, the second appellant in the instant
appeal, had been her friend for “maybe eighteen years.” Winzer had been
Williams’ accountant, handling her taxes, as well as her personal and
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No. 08-20458
business accounting. In 2004, Williams sold an accident and injury clinic she
owned, known as “Amigos,” to Winzer. Deandrea Wade (the third appellant
in this case and Winzer’s daughter) worked as the office manager of the clinic.
Williams testified that Winzer also owns Brighter Days, a tax business and a
daycare all in the same building, in Houston, Texas. Additionally, Winzer is
claimed to own a clinic called Total Rehab of Monroe, also known as Winzer
Total Rehab, located in Monroe, Louisiana.
After discussing the idea with Williams, Johnson invited Winzer to join
the money laundering/mail fraud scheme. Johnson and Winzer agreed that
Johnson would cause Hartford to send fraudulent checks to Winzer’s clinics
and that Winzer would then distribute one-third of the proceeds to Williams
and one-third to Johnson. Winzer disputes Williams’ and Johnson’s version
of events–contending instead that she was duped and controlled by Williams
during the entirety of their business dealings.
During the trial, Johnson offered testimony regarding a meeting that
took place between Winzer, Williams, and herself, during which Winzer
distributed the allotted funds from the first fraudulent check Winzer’s
Brighter Days clinic received from Hartford. Johnson stated that Wade was
present at that meeting. According to Johnson, Wade asked how she could
“get in on it.” Johnson and Williams then explained to Wade “how the process
was going to work . . . [Johnson] would issue the checks and once she got
them, then [Wade] would pay [Johnson], and that the checks would be made
out to C. Johnson Claims Service.” Subsequent to that meeting, Johnson
caused checks to be sent from Hartford to Total Rehab of Monroe, P.O. Box
4941, in Monroe, Louisiana. The application for this post office box was filled
out and signed in the name of Deandrea Wade, 6422 Mosswood Drive. Wade
avers that although she did accept the checks from Hartford on behalf of her
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No. 08-20458
mother’s clinics, she was merely performing her job as the Amigos office
manager and was oblivious to the fact that the checks were fraudulent.
Eric Amoako, Theresa Williams, Dianne Winzer, and Deandrea Wade
all proceeded to trial in the district court on January 22, 2008. Johnson,
however, entered a plea of guilty as to the government’s charges against her
for conspiracy and mail fraud. Johnson testified at trial that her plea
agreement with the government included a cooperation agreement, by which
she would be eligible for a reduced sentence in exchange for her truthful
testimony regarding the conspiracy she entered into with her co-defendants.
On the morning of the sixth day of trial, Amoako’s counsel informed the
court that he had “a few miscellaneous type witnesses,” and that he would
like to “put them on.” He then proceeded to call to the stand Deborah Drake,
a witness that counsel had failed to disclose in compliance with the district
court’s previously issued Scheduling Order. Drake is a clinical social worker
and a marriage and family therapist who testified that Johnson was her
client. Upon hearing this testimony, the district court promptly called for a
recess, excused Drake, and asked counsel to state the relevance of Drake’s
testimony. Amoako’s counsel informed the court that he wished to use
Drake’s testimony to establish that Johnson “is crazy as a bedbug.” Outside
the presence of the jury, Drake informed the district court she had seen
Johnson on four occasions: November 9, November 17, December 1, and
December 15, 2007. Drake stated she had diagnosed Johnson with severe
major depression and severe generalized anxiety.
The district court ruled it would not allow Drake to “testify based on
several reasons.” The district court then barred Drake’s testimony under
both Fed. R. Evid. 403 and Fed. R. Crim. P. 16. First, under Fed. R. Evid.
403, the district court found that the proffered testimony was not “sufficiently
probative” to outweigh its prejudicial effects. The district court concluded
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No. 08-20458
that because Johnson herself had testified she was depressed, Drake’s
testimony would only serve to “confuse the jury” and waste time.
Additionally, the district court found that Amoako’s counsel had failed to
follow the proper procedures for providing notice in accordance with the
Court’s Scheduling Order, issued pursuant to Fed. R. Crim. P. 16.
Consequently, neither the district court, nor the Government, would have the
“ability to check [the] reliability” of the proffered expert testimony prior to its
admission. In consideration of all the aforementioned reasons, the district
court barred Drake’s testimony.
Amoako’s counsel then proffered another expert witness, Dr. Zhao,
Williams’ psychiatrist who would testify as to “Williams’ diagnosis when she
was hospitalized in early 2007.” In response to Dr. Zhao’s proffered
testimony, the district court noted that Williams herself had already provided
testimony regarding her suicide attempt, hospitalization, and the
hallucinations of her dead son she experienced while she was hospitalized.
Amoako’s counsel stated that he was not trying to prove any “prior
inconsistent statements or contradiction,” but rather, counsel only wished to
offer “additional proof to substantiate [his] theory that [Williams is] crazy.”
The district court ruled that while counsel could certainly argue this theory,
Dr. Zhao’s testimony would only be cumulative and, thus, “there was no need
for any extrinsic evidence on this subject.” As a result, the district court
barred Dr. Zhao’s testimony.
We affirm for the reasons set forth below.
II.
A. The district court did not err when it excluded the mental
health expert testimony under Rule 403
This Court reviews “challenges to the admission of evidence at trial . . .
for an abuse of discretion, ‘subject to harmless error analysis.’” United States
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No. 08-20458
v. Stephens, 571 F.3d 401, 409 (5th Cir. 2009) (quoting United States v.
Crawley,
533 F.3d 349, 353 (5th Cir. 2008)).1 “If the court errs in its
evidentiary ruling, the error can be excused if it was harmless.” United
States. v. Hart,
295 F.3d 451, 454 (5th Cir. 2002) (internal quotations
omitted). “Reversible error occurs only when the admission of evidence
substantially affects the rights of a party.”
Crawley, 533 F.3d at 353. In this
case, we do not reach the consideration of whether the defendant-appellants’
substantial rights were affected since we find that the trial court’s exclusion
of the evidence pursuant to Fed. R. Evid. 403 does not constitute error.2
Relevant evidence “is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by [the Federal Rules of
1
Although the defendant-appellants did not renew their objection to the exclusion of
the evidence, their objection has nevertheless been properly preserved for appeal. “To preserve
error in an evidentiary ruling excluding evidence under Rule 103(a), a defendant must make
an ‘offer of proof’ of evidence, meaning that ‘the substance of the evidence’ must have been
‘made known to the court by offer’ or must have been ‘apparent from the context within which
questions were asked.”’ United States v. Kay, 513 F.3d 432, 455 (5th Cir. 2007) (quoting Fed.
R. Evid. 103). In the present case, the defendant-appellants need not have renewed their
objection to the exclusion of the evidence in order to preserve their objection for appeal. See
id. at 456 (“By explaining to the court the substance of the proffered evidence . . . and why the
court should admit [the testimony,] . . . Defendants made a sufficient ‘informal’ offer of
proof.”) (internal citations and quotations omitted). Thus, “[a]lthough Defendants did not
renew their attempt to admit the evidence in trial after the court’s decision to exclude . . . [n]o
further objections by Defendants were necessary” to preserve their objections on appeal.
Id.
2
It appears from the record that the district court relied on Fed. R. Crim. P. 16 as an
additional basis for excluding the two mental health experts’ testimonies. We note that the
district court did not refer to Fed. R. Crim. P. 16 explicitly when making its evidentiary ruling.
However, it could be easily inferred from the record that the district court’s reference to the
fact that “the procedures ha[d] not been followed with respect to Mr. Amoako giving disclosure
of the expert . . . in a timely fashion”–demonstrates that Rule 16 may have been a basis for the
district court’s exclusion of the expert’s testimony, as the expert witness’s testimony had not
been disclosed in full compliance with the district court’s Scheduling Order. This Court has
previously held “that the compulsory process clause of the sixth amendment forbids the
exclusion of otherwise admissible evidence solely as a sanction to enforce discovery rules or
orders against criminal defendants.” United States v. Davis,
639 F.2d 239, 243 (5th Cir. 1981).
Thus, to the extent that the district court did rely on Rule 16, such reliance was in error.
Because the district court’s exclusion of the evidence can be affirmed on other grounds,
however, any such error would be harmless.
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No. 08-20458
Evidence], or by other rules prescribed by the Supreme Court pursuant to
statutory authority.” Fed. R. Evid. 402. “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” Fed. R. Evid. 403. In reviewing the district court’s
decision to exclude the expert witnesses’ testimony, this Court must remain
“mindful that a defendant has ‘the right to attempt to challenge [a witness’s]
credibility with competent or relevant evidence of any mental defect or
treatment at a time probatively related to the time period about which [that
witness] was attempting to testify.’” United States v. Jimenez, 256 F.3d 330,
343 (5th Cir. 2001) (quoting United States v. Partin,
493 F.2d 750, 763 (5th
Cir. 1974)).
This right, however, is not limitless. This Court has previously held
that evidence regarding a witness’s mental health is relevant for
impeachment purposes if that evidence speaks to whether the witness has
“the ability to comprehend, know, and correctly relate the truth.” Partin, 493
F.2d at 762.
In the present case, the record shows that at the time defense counsel
proffered the two mental health experts’ testimonies, defense counsel failed to
establish their relevance. That is, defense counsel failed to establish that
these two experts could speak to whether Johnson or Williams suffered from
mental impairments such that they did not have “the ability to comprehend,
know, and correctly relate the truth.” Id. Instead, defense counsel merely
informed the district court that he intended to use Drake’s testimony to
establish that Johnson was “crazy as a bedbug.” 3 When defense counsel
3
In evaluating whether to exclude the evidence, the district court first inquired as to
“what the relevance is” of Drake’s testimony. When counsel answered that the relevance was
8
No. 08-20458
proffered Dr. Zhao’s testimony, he stated that he was not trying to prove any
“prior inconsistent statements or contradiction,” but rather, counsel only
wished to offer “additional proof to substantiate [his] theory that [Williams is]
crazy.”
The fact that a mental health expert can state that a witness is “crazy”
does not render that expert testimony relevant for evidentiary purposes.4
Consequently, the district court did not abuse its discretion when it found the
probative value of the mental health evidence was outweighed by its
prejudicial effect pursuant to Rule 403–since the evidence, as it was proffered,
was entirely lacking in relevance.
The appellants also aver that the district court mis-stated Rule 403’s
legal standard. In excluding Drake’s testimony, the district court reasoned
that Drake’s testimony was “not sufficiently probative to outweigh . . . the
prejudicial value of unfair confusion and waste of time.” According to the
simply to establish that Johnson was “crazy as a bedbug,” i.e., that Johnson had been
diagnosed with both depression and anxiety, the district court reasoned that “the diagnosis
of major depression is–and general anxiety are [not] . . . new news to this jury. There’s no
indication that . . . this testimony is sufficiently probative to outweigh what I think the other
negatives are. . . [I]t will confuse the jury.” Likewise, when counsel informed the district court
that he wished to introduce Dr. Zhao to establish that Williams experienced hallucinations
during her hospitalization, the district court stated that “the witness has not been contradicted
on this subject so there’s no need for any extrinsic evidence on this subject.”
4
In reaching this conclusion, we note that we are not concluding that Drake and Dr.
Zhao’s testimonies were definitively irrelevant, but rather, we conclude that the district court
was not presented with the proper proffer by which it could verify their relevance. Had
defense counsel indicated to the district court that counsel intended for Drake and Dr. Zhao
to testify as to Johnson’s and Williams’s “ability to comprehend, know, and correctly relate the
truth.” Partin, 493 F.2d at 762, our analysis here would be quite different. Instead, the
district court was only offered two mental health experts who would establish that two
witnesses were “crazy.” While defense counsel attempted to bolster the original proffer during
oral argument by offering new evidence regarding what the experts could have testified to
during the trial, as the reviewing Court, we can only consider “the substance of the evidence
[as it] was made known to the [district] court by [defense counsel’s] offer.” Fed. R. Evid.
103(a)(2). Defense counsel’s proffer at trial to establish that Johnson and Williams are “crazy”
simply does not suffice.
9
No. 08-20458
appellants, this is a mis-characterization of Rule 403’s standard because it
appears as though the district court is excluding all evidence unless the
probative value of the evidence sufficiently outweighs any potential
prejudice–in place of evaluating whether the potential prejudice outweighs
the probative value of the evidence. The appellants argue that the district
court’s application of Rule 403 in this manner would erroneously support the
exclusion of any evidence where the probative value was equivalent to the
potential prejudicial effect. See United States v. Davis, 639 F.2d 239, 244 (5th
Cir. 1981) (“The phrasing of Rule 403 makes it clear that the discretion to
exclude does not arise when the balance between the probative worth and the
countervailing factors is debatable.”). Thus, the appellants maintain that
because Rule 403 states that relevant evidence may be excluded only “if its
probative value is substantially outweighed” by any prejudice, the district
court’s statement and seeming reliance upon the contrapositive to Rule 403’s
plain language constitutes reversible error.
This argument is not persuasive. Although this Court has previously
recognized that the district court has no discretion to dismiss evidence
pursuant to Rule 403 when “the balance between the probative worth and the
countervailing factors is debatable,” Davis, 639 F.2d at 244, this debate is not
present in the record before us now. While the district court’s restatement of
Rule 403’s language could be misread to indicate erroneous reasoning, when
considered in the full context of the district court’s findings, it is clear that
the district court properly evaluated the proffered evidence in full accordance
with Rule 403’s legal standards. The record supports the district court’s
determination that Drake’s testimony regarding Johnson’s mental health
lacked probative value, and therefore, was not relevant to the issues at hand.
Furthermore, the record supports the district court’s finding that Dr. Zhao’s
10
No. 08-20458
testimony regarding Williams’ hallucinations while she was hospitalized was
only cumulative, and therefore under Rule 403, properly excluded.
For the aforementioned reasons, we affirm the district court’s exclusion
of the evidence of both mental health experts pursuant to Rule 403.
B. The indictment sufficiently alleged the mens rea element
of the offense charged in Count II
The appellants also aver that the indictment is fundamentally defective
because the Government did not allege the correct mens rea element for the
offense charged in Count II. “We review de novo a challenge to the sufficiency
of an indictment.” United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.
1999) (citation omitted). “Generally, we measure the sufficiency of an
indictment by whether (1) each count contains the essential elements of the
offense charged, (2) the elements are described with particularity, without
any uncertainty or ambiguity, and (3) the charge is specific enough to protect
the defendant against a subsequent prosecution for the same offense.”
Id.
(internal quotations omitted).
Count II of the indictment charges the three appellants with conspiracy
to launder funds under 18 U.S.C. § 1956(h). Section 1956(h) states: “Any
person who conspires to commit any offense defined in this section or section
1957 shall be subject to the same penalties as those prescribed for the offense
the commission of which was the object of the conspiracy.” Thus, Count II
charges the appellants with conspiring to commit the offenses referenced in
§ 1956(a)(1)(A)(i) and (B)(i). On appeal, the three appellants now argue that
the indictment is defective because Count II does not allege the specific intent
necessary to charge an individual with having committed the actual offense of
money laundering outlined in § (a)(1)(A)(i). The appellants attempt to bolster
their argument by highlighting the fact that § (a)(1)(A)(i) states the mens rea
as “with the intent to promote,” and Count II of the indictment does not
11
No. 08-20458
mention the word “intent,” but rather, speaks to the appellants’ actions as
“knowingly combine, conspire, confederate, and agree with others” to commit
the listed offenses. According to the appellants, the indictment is thus
defective for erroneously substituting the mens rea “knowingly” for
§ (a)(1)(A)(i)’s “with intent.” The appellants’ argument, however, is
misplaced.
“The defendants’ argument is unavailing because the . . . elemen[t] the
defendants claim [is] missing from count two [is] not even [an] elemen[t] of
the crime of conspiracy.” Threadgill, 172 F.3d at 367 (citing 18 U.S.C.
§ 1956(h)). Conspiracy is the offense charged under § 1956(h)–not money
laundering. As this Court has previously stated, “[c]onspiracy incorporates
willfulness and specific intent. . . [I]ntent to accomplish an object cannot be
alleged more clearly than by stating that parties conspired to accomplish it.”
United States v. Purvis,
580 F.2d 853, 859 (5th Cir. 1978) (internal citations
and quotations omitted). In an indictment that charges a defendant with
conspiracy to commit a crime, the formality of listing the specific intent of the
conspiracy’s underlying crime “is unnecessary where the statute itself
contains no such terms and the indictment clearly sets forth a charge of
specific intent in the factual averment.”
Id. “Thus, we have consistently held
that a conspiracy charge need not include the elements of the substantive
offense the defendant may have conspired to commit.”
Threadgill, 172 F.3d at
367 (citing United States v. Fuller,
974 F.2d 1474, 1479-80 (5th Cir. 1992);
United States v. Graves,
669 F.2d 964, 968 (5th Cir.1982)).
For the aforementioned reasons, Count II of the charging indictment is
not defective, and consequently, the appellants’ appeal in this regard is
without merit.
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No. 08-20458
C. The district court did not err in denying appellant Wade’s
Motion for Judgment of Acquittal on Counts I, II, XVI, and
XVII
Because Wade “preserved h[er] challenge to the sufficiency of the
evidence, we review de novo the district court’s denial of h[er] Rule 29 motion
for a judgment of acquittal.” United States v. Mitchell, 484 F.3d 762, 768 (5th
Cir. 2007). Regarding the sufficiency of the evidence sustaining her
convictions, we review her appeal “under the well established standard that
the Court view the evidence, whether direct or circumstantial, and all the
inferences reasonably drawn from it, in the light most favorable to the
verdict.” United States v. Salazar,
958 F.2d 1285, 1290-91 (5th Cir. 1992).
“The ultimate test for sufficiency of the evidence challenges is whether a
reasonable jury could find that the evidence establishes guilt beyond a
reasonable doubt.”
Id. at 1291. “Such standard of review is the same
regardless of whether the evidence is direct or circumstantial.” United States
v. Wise,
221 F.3d 140, 147 (5th Cir. 2000). “The evidence need not exclude
every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, and the jury is free to choose among
reasonable constructions of the evidence.”
Mitchell, 484 F.3d at 768.
“Furthermore, our inquiry is limited to whether the jury’s verdict was
reasonable, not whether we believe it to be correct.” United States v. Ollison,
555 F.3d 152, 160 (5th Cir. 2009).
A conviction for conspiracy under 18 U.S.C. § 371 (Count I of Wade’s
indictment) “requires the Government to prove beyond a reasonable doubt (1)
an agreement between two or more persons, (2) to commit a crime against the
United States, and (3) an overt act in furtherance of the agreement
committed by one of the conspirators.” United States v. Krenning, 93 F.3d
1257, 1262 (5th Cir. 1996). “To sustain a conviction for conspiracy to launder
13
No. 08-20458
money under § 1956(h) [Count II], the Government must prove beyond a
reasonable doubt that: (1) there was an agreement between two or more
persons to launder money; (2) the defendant voluntarily agreed to join the
conspiracy; and (3) one of the persons committed an overt act in furtherance
of the conspiracy.” United States v. Armstrong, 550 F.3d 382, 403 (5th Cir.
2008) (citation omitted). A conviction for mail fraud under 18 U.S.C. § 1341
(Counts XVI and XVII) “requires the Government to prove beyond a
reasonable doubt (1) a scheme to defraud, (2) which involved use of the mails,
and (3) that the mails were used for the purpose of executing the scheme.”
Krenning, 93 F.3d at 1262-63 (citation omitted).
Although Wade contends that “the testimony at trial did not establish
that [she] knowingly or intentionally participated in the scheme,” the
evidence on record provides a legally sufficient basis for the jury to conclude
that Wade was a willing participant in the charged conspiracies and
underlying acts of mail fraud. At trial the Government introduced evidence
establishing that Wade worked as the office manager of one of Winzer’s
clinics, Amigos. Johnson offered testimony regarding a meeting that took
place between Winzer, Williams, and herself, during which Winzer
distributed the allotted funds from the first fraudulent Hartford check
Winzer’s Brighter Days clinic had received. Johnson stated that Wade was
present at that meeting. According to Johnson, Wade asked how she could
“get in on it.” Johnson and Williams then explained to Wade “how the process
was going to work . . . [Johnson] would issue the checks and once she got
them, then [Wade] would pay [Johnson], and that the checks would be made
out to C. Johnson Claims Service.”
The evidence introduced at trial corroborates Johnson’s testimony.
Wade was a signatory on the Amigos’ Capital Bank account. Bank records for
the Amigos’ account at Capital Bank show that before January, 2006, the
14
No. 08-20458
account had a negative balance with deposits totaling only $9,000 for the
month of December, 2005. In the month of January, 2006, four checks from
Hartford (totaling $67,679.01) were deposited into the Amigos’ account.
Shortly thereafter, checks payable to Theresa Williams and “Charlie
Johnson” were written from the Amigos’ account, each in an mount equal to
one-third the amount of revenue that had come in to the Amigos’ account
from Hartford in the previous month. The checks payable to Williams and
Johnson were signed by Deandrea Wade. The record reveals a similar set of
events in February, 2006, as well as March, 2006. All the checks addressed to
Williams and Johnson drawn on the Amigos’ account were signed by
Deandrea Wade.
Johnson also caused fraudulent checks to be sent from Hartford to
Total Rehab of Monroe, P.O. Box 4941, in Monroe, Louisiana. The application
for this post office box was filled out and signed in the name of Deandrea
Wade, 6422 Mosswood Drive. Johnson stated that Wade once called her and
asked when Johnson was going to “send Amigos some more money.”
When considered in total, a reasonable jury could easily conclude from
the evidence presented that Wade knowingly and intentionally participated
in the conspiracies to commit money laundering and the counts of mail fraud.
III.
For all of the foregoing reasons, we affirm the judgment of the trial
court.
15
