United States v. Armstrong

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-20323
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA ARMSTRONG, Also Known as Angie Armstrong;
DEBBIE RAMCHARAN,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
Before SMITH, WIENER, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Angela Armstrong and Debbie Ramcharan appeal their convictions of en-
gaging in monetary transactions in property derived from specified unlawful ac-
tivity, conspiracy, and aiding and abetting mail fraud. They argue that the jury
instructions were inappropriate, that the district court erred by allowing the gov-
United States Court of Appeals
Fifth Circuit
F I L E D
September 8, 2010
Lyle W. Cayce
Clerk
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ernment’s summary witness to testify, and that the court improperly admitted
several exhibits into evidence. Because there is no reversible error, we affirm.
I. Facts and Procedural History.
Between 1996 and 2002, defendants participated in a large-scale insurance
fraud pursuant to which those participating in the fraud intentionally flooded
over fifty homes and a commercial building. They then filed false reimburse-
ment claims on their flood insurance policies, in some cases claiming reimburse-
ment for repairs they had completed themselves. In other cases, they would con-
tract for repairs by companies controlled by other members of the conspiracy,
who inflated their bills. In addition, the members of the fraud removed the
homeowner’s furniture before the flooding and moved in a set of already flood-
damaged furniture. Each defendants’ participation in the scheme included act-
ing once as the “victim” of a flood. Armstrong also worked for three of the com-
panies that contracted to repair the damage, personally spoke with various in-
surance adjusters in this capacity, and participated in inflating invoices.
Because the conspirators filed claims with different insurance companies,
the fraud continued undetected for seven years. Eventually, however, fraud in-
vestigators for Farmers Insurance became suspicious of two similar claims.
They reported the suspicious activity to the Texas Department of Insurance,
whose subsequent investigation uncovered the scheme, which had defrauded in-
surance companies of $5.4 million.
Defendants were charged with one count of conspiracy to commit mail
fraud in violation of 18 U.S.C. § 371; five counts of aiding and abetting mail
fraud in violation of 18 U.S.C. §§ 1341-1342; four counts of engaging in monetary
transactions in property derived from specified unlawful activity in violation of
18 U.S.C. § 1957(a); and one count of conspiracy to engage in monetary transac-
tions in property derived from specified unlawful activity in violation of 18
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No. 08-20323
U.S.C. § 1956(h). They were tried jointly.
At trial, the government called insurance company representatives to tes-
tify about the claims filed by the group of conspirators. The government submit-
ted as evidence many of the claim files, including the adjusters’ logs of each
claim. The government also offered the testimony of Jan Tarpley, a postal in-
spector, as a summary witness, and a summary chart prepared by Kathy Ander-
son, an FBI financial analyst (Exhibit 161). The jury found defendants guilty of
nine of the ten counts, including conspiracy to commit mail fraud, aiding and
abetting mail fraud, engaging in monetary transactions in property derived from
specified unlawful activity, and conspiracy to engage in monetary transactions
in property derived from specified unlawful activity.
II. Discussion.
A. Admission of Government’s Exhibit 161.
Ramcharan argues that the court improperly admitted Exhibit 161 as a
summary chart under Federal Rule of Evidence 1006. We review the admission
of evidence, including summaries and summary testimony, for abuse of discre-
tion. United States v. Harms, 442 F.3d 367, 375 (5th Cir. 2006). If there is error,
it is “excused unless it had a substantial and injurious effect or influence in de-
termining the jury’s verdict.” Id. (internal quotatoin marks omitted).
Exhibit 161 is titled “Debbie Ramcharan, Occurrences totaling
$1,576,239.79, 2/18/2000-3/28/2001.” It includes a photo of Ramcharan sur-
rounded by pictures of seven different properties that were flooded by the con-
spirators. Lines connect Ramcharan’s photo to three of the pictures, indicating
her involvement in the scheme to flood those particular properties. All the in-
formation summarized in the chart was already before the jury.
Rule 1006 provides that “[t]he contents of voluminous writings, recordings,
or photographs which cannot conveniently be examined in court may be pre-
sented in the form of a chart, summary, or calculation.” Fifth Circuit precedent
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No. 08-20323
conflicts on whether rule 1006 allows the introduction of summaries of evidence
that is already before the jury, or whether instead it is limited to summaries of
voluminous records that have not been presented in court. We need not resolve1
that conflict, however, because even if summaries of information already before
the jury, such as Exhibit 161, are inadmissible, the admission of Exhibit 161 was
harmless error.
Ramcharan argues that Exhibit 161 had a “substantial and injurious effect
or influence,” Harms, 442 F.3d at 375, for two reasons. First, she professes that
the exhibit drew an inappropriate inference from the underlying evidence by
implying that Ramcharan was criminally liable for all the properties in the
chart, but the evidence connected her to only four of them. The presence of an
inference itself is not prejudicial, for under rule 1006, “‘[t]he essential require-
ment is not that the charts be free from reliance on any assumptions, but rather
that these assumptions be supported by evidence in the record.’” Buck, 324 F.3d
at 791 (citing United States v. Diez, 515 F.2d 892, 906 (5th Cir. 1975)). Moreov-
er, Exhibit 161 did not suggest any conclusions unsupported by the evidence.
The witness who prepared the exhibit clarified in her testimony, on direct and
cross-examination, that Ramcharan had a connection only to the properties that
had a line drawn to her picture. Thus, there was no reason for the jury to be-
lieve that she was connected to the other properties as well.
Second, Ramcharan contends that admitting Exhibit 161 may have bol-
Compare United States v. Bishop, 264 F.3d 535, 547-48 (5th Cir. 2001) (allowing intro-1
duction of summary charts that prosecutors “based . . . on testimony and documentary evi-
dence presented to the jury”), and United States v. Stephens, 779 F.2d 232, 238-39 (5th Cir.
1985) (stating that the language of rule 1006 extends to summaries of writings that have been
presented in court), with United States v. Buck, 324 F.3d 786, 790 (5th Cir. 2003) (“Th[e] use
of summaries [allowed under rule 1006] should be distinguished from charts and summaries
used only for demonstrative purposes to clarify or amplify argument based on evidence that
has already been admitted. . . . Although some Courts have considered such charts and sum-
maries under Rule 1006, the Rule is really not applicable because pedagogical summaries are
not evidence. Rather, they are demonstrative aids governed by Rules 403 and 611” (quoting
5 STEPHEN A. SALTZBURG ET AL., FEDERAL RULES OF EVIDENCE MANUAL § 1006.02[5], at 1006-6
(8th ed. 2002))).
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No. 08-20323
stered the credibility of the witnesses testifying to the underlying evidence.
That argument fails, however, because the court made plain to the jury that it
should consider the exhibit only as an aid in understanding the other evidence.
Immediately after admitting Exhibit 161, the court commented:
I remind the jury that this is among those summary charts that we
talked about yesterday. This chart is not independent evidence. It
is admitted to assist in summarizing other evidence. If you find that
the exhibit does not accurately or correctly summarize the evidence
that has been otherwise established, you should disregard it to that
extent, and give it only the weight that you think it deserves.
The final jury instructions included a similar comment. Those instructions dis-
pelled any danger that the jury would give weight to Exhibit 161 as substantive
evidence or to bolster credibility. Thus, the admission of Exhibit 161, if error,
was harmless.
B. Admission of Insurance Adjuster’s Logs.
Ramcharan challenges the admission of the insurance adjusters’ logs on
grounds of hearsay and authentication. That objection was not made at trial, so
we review the issue only for plain error. United States v. Avants, 367 F.3d 433,
443 (5th Cir. 2004).
To the extent that Ramcharan argues that the logs themselves did not
qualify for the “business records” exception to the hearsay rule, see Federal Rule
of Evidence 803(6), she is incorrect. At times, she appears to claim that the ac-
curacy of the contents of the logs was not affirmed by the insurance claims
agents who introduced them. But “[t]here is no requirement that the witness
who lays the foundation be the author of the record or be able to personally at-
test to its accuracy.” United States v. Brown, 553 F.3d 768, 792 (5th Cir. 2008),
cert. denied, 129 S. Ct. 2812 (2009). Rather, a “qualified witness is one who can
explain the record keeping system of the organization and vouch that the re-
quirements of Rule 803(6) are met.” Id. The relevant witnesses plainly met
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No. 08-20323
those requirements.
More particularly, Ramcharan objects to the portion of the logs that re-
corded phone calls from Ramcharan to one of the insurance adjusters. She main-
tains that the statements by the caller in the logs were hearsay and inadmissible
under the “hearsay within hearsay” rule. FED. R. EVID. 805. That argument
fails, however, because the statements by the caller were not offered for the
truth of the matter asserted and thus are not hearsay. See FED. R. EVID. 801(c).
Rather, the government offered the statements to prove that Ramcharan had
contacted the insurance companies in regard to particular claims and was thus
aware of the flooding of the propertiesSSthat is, to prove the identity of the
caller.
Ramcharan contends that the adjuster’s identification of the caller as
Ramcharan is insufficient to prove identity, particularly where the conspirators
frequently concealed or modified their identities. That argument is correct, but
it should have been made to the jury. The call logs were some evidence that
Ramcharan was the caller, and the jury was free to consider them as such.
C. Testimony of the Summary Witness.
Defendants argue that the court erred when it allowed Postal Inspector
Jan Tarpley to testify as a summary witness for the government. Because de-
fendants objected to Tarpley’s testimony, we review its admission for abuse of
discretion. Avants, 367 F.3d at 443.
Although this court allows summary witness testimony in “limited circum-
stances” in complex cases, we have “repeatedly warned of its dangers.” United
States v. Nguyen, 504 F.3d 561 (5th Cir. 2007). “While such witnesses may be
appropriate for summarizing voluminous records, as contemplated by Rule 1006,
rebuttal testimony by an advocate summarizing and organizing the case for the
jury constitutes a very different phenomenon, not justified by the Federal Rules
of Evidence or our precedent.” United States v. Fullwood, 342 F.3d 409, 414 (5th
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No. 08-20323
Cir. 2003). In particular, “summary witnesses are not to be used as a substitute
for, or a supplement to, closing argument.” Id.
To minimize the danger of abuse, summary testimony “must have an ade-
quate foundation in evidence that is already admitted, and should be accompa-
nied by a cautionary jury instruction.” Bishop, 264 F.3d at 547. Moreover, “[f]ull
cross-examination and admonitions to the jury minimize the risk of prejudice.”
Id.
Here the evidenceSSinvolving numerous witnesses, technical testimony,
and scores of exhibitsSShas sufficient complexity to justify use of a summary wit-
ness. Nothing in the record suggests that Tarpley’s testimony went beyond sum-
marizing the evidence already in the record, and Tarpley was subject to exten-2
sive cross-examination. Moreover, even though the court’s instructions did not
explicitly address summary testimony, they did warn the jury generally not to
take summaries as substantive evidence. Thus, the district court did not abuse
its discretion by allowing the use of this summary witness.
D. Insurance Claim Files with Colored Flags.
Armstrong avers that the district court inappropriately allowed the gov-
ernment to attach colored flags to the claim files that were admitted into evi-
dence. Because counsel objected, this court’s review is for abuse of discretion.
See Avants, 367 F.3d at 443. Armstrong’s argument rests on the assertion that
the flags improperly bolstered the evidence by attempting to convey the prepar-
er’s opinion about certain pieces of evidence. It was evident to the jury, how3
The only possible exception is Tarpley’s testimony on redirect about what she “sur-2
mised” after reading the individual claim files. Ramcharan cannot rightly complain about that
testimony, however, because her counsel opened that line of inquiry. Cf. United States v.
Carey, 589 F.3d 187, 193-94 (5th Cir. 2009).
Cf. United States v. Price, 722 F.2d 88, 90 (5th Cir. 1983) (warning against allowing3
testimony bolstering the credibility of a witness to “suggest[] to the jury that it may shift to
(continued...)
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No. 08-20323
ever, that the tabs were merely organizational aids. The court stated as much
in its final charge to the jury, which read,
Some of the claim files admitted into evidence are voluminous
and have color-coded tabs as an organizational aid. These tabs sim-
ply serve to identify certain parts of the files, to aid in locating parts
of the files that may have been mentioned or shown to you during
the testimony. You are instructed that the tabs and their placement
are not evidence. You are also instructed that the existence of the
tabs does not mean that you should disregard or give less consider-
ation to other parts of the exhibits that have been admitted into evi-
dence. Whether the color-coded tabs correctly reflect the type of en-
try indicated by their color is for you to determine, based on your
own examination of the exhibits and the testimony you have heard.
This instruction leaves no possibility that the jury misinterpreted the tabs, and
it shows that the court did not abuse its discretion in admitting them.
E. Jury Instructions.
Defendants’ final three issues on appeal relate to the propriety of the jury
instructions. They argue that the court erred in its Pinkerton instruction and
its instruction regarding conspiracy to commit mail fraud. Armstrong alone ad-
ditionally challenges the instruction regarding conspiracy to engage in monetary
transactions in property derived from specified unlawful activity. Because none
of these objections was raised at trial, we review them for plain error. See Unit-
ed States v. Phillips, 477 F.3d 215, 221 (5th Cir. 2007).
First, defendants say that the instruction for conspiracy to commit mail
fraud failed to include the substantive elements of mail fraud. That argument
is frivolous, however, because the substantive elements were included in a sepa-
rate instruction regarding the count for mail fraud. Thus, “looking to the entire
charge,” United States v. Chagra, 807 F.2d 398, 402 (5th Cir. 1986), it is evident
(...continued)3
a witness the responsibility for determining the truth of the evidence”).
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No. 08-20323
that the jury was properly instructed as to the elements of mail fraud, and there
was no error, plain or otherwise.
Second, Armstrong argues that the instruction regarding conspiracy to en-
gage in monetary transactions in property derived from specified unlawful activ-
ity was plain error because it did not mention the statute’s requirement that the
criminally derived property be valued over $10,000. That contention is similarly
frivolous, because the $10,000 requirement was included in the instruction re-
garding the substantive crime of engaging in monetary transactions in property
derived from specified unlawful activity. Thus, that requirement was properly
before the jury, and there is no error.
Next, defendants maintain that the Pinkerton instruction was improper.
“[U]nder the Pinkerton doctrine, a defendant can be found liable for the substan-
tive crime of a coconspirator provided the crime was reasonably foreseeable and
committed in furtherance of the conspiracy.” The jury, however, was told that4
it should impose Pinkerton liability if it found that “the offense was committed
in furtherance of or as a foreseeable consequence of the conspiracy.” Despite this
discrepancy, the jury instruction tracked exactly this circuit’s pattern jury in-
struction for Pinkerton liability, which we have previously held to state the law5
correctly. There was no error in this part of the instruction.6
Finally, defendants argue that the Pinkerton instruction improperly stated
that it was applicable to “the offenses charged in any of the subsequent counts,”
including the count charging conspiracy to engage in monetary transactions in
United States v. Gonzalez, 570 F.3d 16, 26 n.8 (5th Cir. 2009) (emphasis added) (alter-4
ation in original) (citation omitted).
See Pattern Jury Instructions: Fifth Circuit, Criminal Cases, § 2.22.5
United States v. Thomas, 348 F.3d 78, 85 (5th Cir. 2003); see also United States v.6
Dean, 59 F.3d 1479, 1490 n.18 (5th Cir. 1995) (“[A]t a minimum, a proper Pinkerton instruc-
tion should at least state clearly that the defendant can be convicted of a substantive crime
committed by his co-conspirator in furtherance of the conspiracy” (citation omitted)).
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No. 08-20323
property derived from specified unlawful activity. But Pinkerton liability attach-
es only to substantive crimes, not to other conspiracies. Defendants are correct
that the jury charge should have been more specific about the counts to which
Pinkerton liability applied.
Nonetheless, the problems with the instruction do not amount to plain er-
ror. To be reversible, plain error must affect the defendant’s substantial rights,
and even then, we have discretion not to reverse a conviction unless “the error
seriously affect[s] the fairness, integrity, or public reputation of judicial proceed-
ings.” United States v. Cotton, 535 U.S. 625 (2002) (alteration in original) (cita-
tion omitted). These defendants’ substantial rights were not affected, because
the prosecutor made it plain in closing argument that Pinkerton liability applies
only to substantive crimes. Because this court “review[s] claimed deficiencies in
a jury charge by looking to the entire charge as well as the arguments made to
the jury” to determine “whether in the context of the true trial scene the jury
was given incorrect instructions,” the prosecutor’s explanation was sufficient to
cure any harm that might have been caused by the deficient instruction.
The convictions are in all respects AFFIRMED.
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