Case: 11-50961       Document: 00512274682         Page: 1     Date Filed: 06/14/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 14, 2013

                                       No. 11-50961                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JERRY EDWARD WEAVER,

                                                  Defendant-Appellant



                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 5:10-CR-967-5


Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is an appeal from a conviction for “title washing,” a process by which
a vehicle’s title is fraudulenty altered to indicate a clean title. The defendant,
Jerry Edward Weaver, argues that insufficient evidence supported the jury’s
verdict. He also argues that the prosecutor’s closing argument, which included
a remark that fairness to the defendant should be the “last thing on [the jurors’]
minds”, constituted plain error and a violation of his constitutional right to due
process. For the reasons below, we affirm.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 11-50961

                   FACTS AND PROCEDURAL HISTORY
      Jerry Edward Weaver was charged in a multi-count superseding
indictment with two counts of aiding and abetting codefendant Babauk Omeed
Harizavi in committing mail fraud, in violation of 18 U.S.C. §§ 2 and 1341. The
scheme involved the practice of “title washing,” a process by which a vehicle’s
title is fraudulently altered to indicate a clean title. Title washing conceals
information that should normally be contained on the title, such as notations or
“brands” that the vehicle had been deemed non-repairable and suitable for parts
only or deemed a salvage motor vehicle. Such brands are typically meant to put
all on notice that the vehicle has been extensively damaged and may not be safe
to drive.1
      Weaver, the owner and operator of JW Auto Group in Rowlett, Texas,
purchased out-of-state automobiles from the General Services Administration
(GSA) that he knew to be “parts-only” or “salvage,” repaired them, and then paid
Harizavi to obtain clean titles by filing fraudulent mechanic’s lien paperwork
and other fraudulent documents with the Bexar County Tax Assessor-Collector’s
Office in San Antonio. Those documents functioned to remove the “salvage” or
“parts-only” designations from the original titles. The Texas Department of
Motor Vehicles issued the clean titles and delivered them through the U.S. mail.
Weaver then sold the vehicles to unsuspecting customers, who would not have
bought the vehicles had they been aware of the prior damage and designations.
      At the jury trial, Weaver claimed he did not knowingly participate in
aiding and abetting mail fraud. Specifically, he asserted he did not know
Harizavi was using illegal means—via the Texas mechanic’s lien statute—to
wash the titles. He claimed he was merely a spectator to Harizavi’s title
washing scheme, and lacked the specific intent to defraud his customers.

      1
          There is no legal means by which vehicles with salvage or parts-only titles may
receive clean titles in Texas without reference to their prior title history.

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                                  No. 11-50961

Moreover, he argued, he “was satisfied things were in order, and did not feel the
need to learn the procedure Mr. Harizavi had used . . . . , and his conscience was
clear because he had sold the cars with a clean title and he had repaired them
so ‘the cars were safe.’”
      The jury found Weaver guilty on two counts of aiding and abetting mail
fraud based on his sale of two title-washed cars to unsuspecting customers. The
district court sentenced him to 24 months on each count, to be served
concurrently, followed by a three-year period of supervised release. Weaver’s
trial counsel withdrew after the verdict and Weaver timely appealed pro se and
moved for release pending appeal.       The district court denied the motion.
Weaver, through new counsel, then moved this court for release pending appeal.
This court denied the motion because Weaver had not shown that his appeal
would raise a substantial question of law or fact.
                                  DISCUSSION
      Weaver asserts two issues on appeal. First, he contends the evidence was
insufficient to establish his guilty knowledge of the fraudulent scheme. Second,
he argues that the prosecution’s closing argument was inflammatory, casting
significant doubt on the jury’s verdict. He claims the closing argument met the
plain error standard and also violated his constitutional right to due process of
law. We address each argument in turn.
I.    Sufficiency of the Evidence
      At the close of the government’s case and again at the close of the defense’s
case, Weaver moved for a judgment of acquittal, asserting that the evidence was
insufficient to prove his intent to participate in the scheme to defraud.
Therefore, we review the claim de novo. United States v. McCauley, 

, 818 (5th Cir. 2001) (holding that a denial of a motion for judgment of
acquittal is reviewed de novo).



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      In assessing a challenge to the sufficiency of the evidence to sustain a
conviction, we consider “whether, viewing the evidence in the light most
favorable to the government, a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.” 

reasonable inferences from the evidence must be construed in
favor of the jury verdict.” United States v. Martinez, 

, 161 (5th Cir.
1992). Our review of sufficiency is “highly deferential to the verdict,” and
recognizes that it is solely the jury’s role to assess credibility and weigh the
evidence. United States v. Seale, 

, 496 (5th Cir. 2010) (quotation
omitted).   “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.”

obtain a conviction for mail fraud under 18 U.S.C. § 1341, the
government must prove “(1) a scheme to defraud; (2) the use of the mails to
execute the scheme; and (3) the specific intent to defraud.” United States v.
Bieganowski, 

, 275 (5th Cir. 2002) (quotation omitted). To show
intent to defraud, the government “must prove that the defendant contemplated
or intended some harm to the property rights of the victim.” United States v.
Leonard, 

, 1187 (5th Cir. 1995). A jury may infer intent to defraud
from all the facts and circumstances surrounding the transaction in question.
United States v. Aubrey, 

, 827 (5th Cir. 1989). With respect to
aiding and abetting, the government must prove that the elements of the
substantive offense occurred and that the defendant associated himself with it,
participated in it, wished to bring it about, and sought by his action to make it
succeed.    United States v. McDowell, 

, 313 (5th Cir. 2007)
(quotations omitted).



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      As he did before the district court, Weaver contends the evidence was
insufficient to prove his knowledge or intent beyond a reasonable doubt. He
asserts that, to the contrary, the record establishes that he repaired vehicles he
believed to be salvageable, then sold them after Harizavi brought him what he
believed to be legitimately clean titles. Weaver argues that he was ignorant of
the process by which titles were procured and that Harizavi was the sole
perpetrator of the scheme to defraud.
      Weaver ignores the overwhelming weight of the evidence establishing his
guilty knowledge, including his own written confession. At trial, FBI Agent
Heath Janke testified that Harizavi became the subject of a sting operation
regarding title washing activities in Texas, after which he agreed to be a
confidential informant (CI), cooperating with the investigation and assisting in
the collection of evidence against customers paying him to obtain fraudulent
titles. As a result, agents learned that Weaver and JW Auto Group had paid for
six washed titles on GSA cars in June 2010. In August, after Harizavi became
a CI, Weaver contacted him to place more orders for clean titles on parts-only or
salvage cars, and Harizavi recorded phone conversations regarding the
transactions, which recordings were played for the jury.
      Following these conversations, Agent Janke orchestrated a controlled
delivery of three clean titles that Weaver had paid Harizavi to procure through
the use of fraudulent paperwork.        After accepting the paperwork from a
deliveryman, Weaver was confronted by agents and admitted to having used
Harizavi to obtain good clean titles for salvage or parts-only vehicles.
Specifically, Agent Janke testified that: (1) Weaver admitted he purchased GSA
vehicles because the government did not report damage or title status to Carfax,
Inc., meaning that customers could not independently investigate the vehicle
history; (2) Weaver knowingly purchased cars with salvage or parts-only titles
for which he knew he could not legitimately obtain clean titles; (3) after selling

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                                  No. 11-50961

Harizavi some parts on such a vehicle and learning that Harizavi could
fraudulently obtain clean titles, Weaver paid Harizavi to wash titles for him; and
(4) Weaver then sold the cars without disclosing their true nature or prior
designation to his customers. Weaver told the agents that he did not believe he
had wronged his customers because the cars he sold were in fact adequately
repaired. He advised the agents that he engaged in the fraudulent scheme
because he was having serious financial difficulties. Weaver also voluntarily
provided the agents with a written confession of his knowledge and guilt, which
statement was read to the jury and admitted into evidence.
       Harizavi also testified, explaining the fraudulent process by which he
obtained clean titles for his customers and stating that he had explained the
process to Weaver, after which Weaver hired him to obtain fraudulent clean
titles for GSA parts-only or salvage vehicles. According to Harizavi, at one point
he specifically instructed Weaver on how to obtain the clean titles without his
assistance, but Weaver preferred to pay him to do it.
       Weaver testified in his own defense, asserting that although he had been
in the car business for over 10 years, he did not understand mechanic’s liens or
the process by which titles were obtained; that Harizavi never told him that the
titles he paid for were illegitimate; and that he believed the titles were in fact
legal. He specifically denied any knowledge of Harizavi’s scheme and testified
he had been deceived by Harizavi. Nevertheless, Weaver conceded on cross-
examination that he had admitted his guilt to the FBI agents who questioned
him. Weaver explained that he eventually became suspicious of Harizavi and
admitted his mistake when he realized that Harizavi had taken advantage of
him.
       Viewing the record in the light most favorable to the verdict, the evidence
was sufficient to prove Weaver’s guilty knowledge and knowing participation in
the scheme to defraud. See 

; 

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                                  No. 11-50961

1187; 

. Weaver’s insufficiency argument amounts to no
more than an assertion that the jury should have credited his testimony denying
any knowledge of the scheme, rather than accepting Agent Janke’s testimony,
Harizavi’s testimony, or his own written confession. The jury, however, was
entitled to discredit Weaver’s testimony and credit the government’s version of
events, and this court should not revisit that credibility determination. See

. Accordingly, we find the evidence sufficient to support
a conviction of aiding and abetting mail fraud.
II.    Remarks in Prosecutor’s Closing Argument
       Weaver asserts that the prosecutor made improper and prejudicial
remarks during closing argument.        First, he argues that the prosecutor
improperly told the jurors that fairness to Weaver should be “the last thing” on
their minds. The government counters that, because the defense’s theme was
“[i]t is not fair to Jerry Weaver,” the prosecutor argued in rebuttal to the jury
that “[f]airness to Jerry Weaver should be the last thing on [a juror’s] mind”
when compared to the material false representations Weaver made to the
victims of his fraud. Second, Weaver points to the prosecution’s closing rebuttal,
wherein the prosecutor argued that “according to [Weaver], everyone is a liar,
but him.” The government explains the prosecutor intended the sarcastic
comment      to   mean   that   Weaver      was   arguing    the    government’s
witnesses—Weaver’s customers, the GSA vehicle evaluators, and the FBI—were
“all liars.” Third, Weaver claims prejudice resulting from the prosecutor’s
remark on Weaver’s “arrogance” in discounting GSA evaluators’ opinions on the
salvageability of the vehicles. Weaver contends that these closing remarks
satisfied the plain error standard and denied him due process of law.
       a.    Plain Error Analysis
       It is undisputed that Weaver failed to object to the prosecutor’s comments
at closing. Consequently, review is for plain error. United States v. Gracia, 522

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                                  No. 11-50961

F.3d 597, 600 n.2 (5th Cir. 2008) (holding that when a defendant does not object
to allegedly improper prosecutorial comments at trial, this court reviews only for
plain error). To demonstrate reversible plain error: “(1) there must be an error
or defect—some sort of [d]eviation from a legal rule—that has not been
intentionally relinquished or abandoned; (2) the legal error must be clear or
obvious, rather than subject to reasonable dispute; (3) the error must have
affected the appellant’s substantial rights; and (4) if the above three prongs are
satisfied, the court of appeals has the discretion to remedy the error—discretion
which ought to be exercised only if the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”        United States v.
Escalante-Reyes, 

, 419 (5th Cir. 2012) (en banc) (quoting Puckett v.
United States, 

, 135 (2009)) (internal quotation marks omitted and
alterations in Puckett).
      With respect to alleged improper prosecutorial remarks, the third prong
of plain error review “sets a high bar,” with the determinative question being
“whether the prosecutor’s remarks cast serious doubt on the correctness of the
jury’s verdict.” 

(quotation omitted). The effect of a
prosecutor’s remarks is evaluated in the context of the trial as a whole. United
States v. Mendoza, 

, 496 (5th Cir. 2008). Specifically, this court
considers: (1) the magnitude of the prejudicial effect of the prosecutor’s remarks;
(2) the efficacy of any cautionary instruction by the judge; and (3) the strength
of the evidence supporting the conviction. 

omitted).
      The prosecutor’s “fairness” comment was improper. Weaver’s argument,
however, fails on the third prong of plain error review—any error did not affect
Weaver’s substantial rights because of the overwhelming evidence supporting
his conviction, as discussed in detail above. See United States v. Vaccaro, 

, 1215 (5th Cir. 1997); see also 

. Indeed, the
strength of the evidence severely limited the magnitude of any prejudicial effect

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                                      No. 11-50961

that the comment may have had. Consequently, Weaver’s plain error argument
fails.
b.       Due Process Analysis
         Weaver asserts that the prosecutor’s closing argument violated his
constitutional right to due process of law, which he contends in his reply brief is
distinct from his plain error argument. Weaver Reply Br. at 2 (stating that this
court should also “review for a violation of the Due Process Clause without the
need for showing all the elements of plain error.”). Nevertheless, he does not
clearly cite a standard for an independent constitutional due process violation
and instead seems to conflate meeting the plain error standard with a denial of
one’s constitutional right to due process of law. See Weaver Opening Br. at 8
(“Mr. Weaver respectfully submits that the prosecutor’s argument for no fairness
to the accused . . . infected the fairness, integrity and public reputation of the
trial. Mr. Weaver further submits this denial of fairness constitutes plain error
in violation of his rights under the United States Constitution as defined by the
United States Supreme Court and this Circuit.”).
         Indeed, the standard he appears to cite for such a due process violation is
the fourth prong of the plain error analysis—whether the error seriously affected
the fairness, integrity or public reputation of judicial proceedings. See id.; 

) (“[T]he comments made by the prosecutor
also infected the ‘fairness, integrity and public reputation of his trial.’”).2
Therefore, we treat Weaver’s due process argument as an argument that the
fourth prong of plain error review was satisfied. See Weaver Opening Br. at 11
(“[T]he right to a fair trial is part of the fundamental guarantee of due process
provided by the United States Constitution. Because the defense did not object,


         2
        Of note, Gracia applied the fourth prong of plain error review, and did not address
whether the prosecutor’s closing remarks violated the defendant’s constitutional right to due
process. 

.

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                                       No. 11-50961

the review of this point of error is for plain error. Respectfully, the prosecutor
violated this right when she told the jury that fairness should be the last thing
on their minds when it came to Mr. Weaver.”) (emphasis added).3
       We have held that “[m]eeting all four prongs of plain-error review is
difficult, as it should be.” United States v. John, 

, 285 (5th Cir.
2010) (quoting United States v. Dominguez Benitez, 

, 83 n.9 (2004))
(internal quotation marks omitted). The fourth prong of plain error review is
discretionary, 

to be applied on a case-specific and

       3
          At another point in his opening brief, Weaver seems to assert that whether a
prosecutor’s remarks were “inflammatory” is the standard for determining a due process
violation:
                This Court has designated this “due process standard” as “the Donnelly
        ruler.” United States v. Mendoza, 522 [F.3d] 482, 496 (5th Cir. 2008). Under
        this standard, the Donnelly ruler is a measuring stick by which the Government
        can add up the inches of error and still prevail by showing there was no due
        process violation. However, in Mendoza, the inches did not add up to a violation
        because the prosecutor’s comments were “not inflammatory.” 

in this case are not only inflammatory by
        implication, they are explicitly inflammatory.
Weaver Opening Br. at 13 (citing Donnelly v. DeChristoforo, 

, 643 (1974)).
        The Mendoza panel, however, applied our three-factor test articulated above for
reversible error due to prosecutorial misconduct: (1) the magnitude of the prejudicial effect of
the prosecutor’s remarks; (2) the efficacy of any cautionary instruction by the judge; and (3)
the strength of the evidence supporting the conviction. 

. The goal
of this analysis is to determine “whether the prosecutor’s remarks cast serious doubt on the
correctness of the jury’s verdict.” 

“[t]he difference between the due
process standard and one that considers the seriousness of doubt about the correctness of the
jury’s verdict[] may be disputed,” the Mendoza panel also applied the “Donnelly ruler” for
constitutional error:
                One point at which caselaw concerning constitutional error intersects
        with the caselaw about review of improper closing arguments is when the
        prosecutor’s remarks have “so infected the trial with unfairness as to make the
        resulting conviction a denial of due process.” Under the Donnelly test of
        pervading unfairness, an improper comment may become constitutional error,
        but it is only the exceptional case in which that will occur.

(5th Cir. 2008) (citing 

). Applying both
tests, the Mendoza panel found no reversible or constitutional error based on the prosecutor’s
closing comments about the defendant’s courtroom demeanor. 

any case, Mendoza may be distinguished because the defendant preserved the
alleged error for appellate review. Here, Weaver did not object to the prosecutor’s closing
argument and thus failed to preserve the argument for our review.

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                                No. 11-50961

fact-intensive basis,” 

) (internal
quotation marks omitted).    Nevertheless, “[t]he discretion inherent in the
plain-error standard is not tantamount to caprice.” 

because Weaver failed to satisfy the third prong of plain error
review, we logically conclude that the prosecutor’s closing argument did not
seriously affect the fairness, integrity or public reputation of judicial
proceedings. Therefore, to the extent Weaver argues a due process violation
separate from his plain error argument, the argument fails.
                               CONCLUSION
      Sufficient evidence supported Jerry Edward Weaver’s convictions of aiding
and abetting mail fraud. Furthermore, Weaver has not established all of the
elements for plain error relief stemming from his claim of prosecutorial
misconduct, nor has he sufficiently argued any freestanding due process
violation. We therefore AFFIRM.




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