     Case: 10-50463 Document: 00511492360 Page: 1 Date Filed: 05/31/2011




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

                                                                             FILED
                                                                            May 31, 2011
                                       No. 10-50463                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

ROBERTO OLIVAS; CARLOS HUMBERTO MONTOYA,

                                                   Defendants - Appellants




                   Appeals from the United States District Court
                         for the Western District of Texas
                            U.S.D.C. No. 7:09-CR-172-1


Before JONES, Chief Judge, and KING and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Carlos Humberto Montoya and Roberto Olivas appeal their convictions for
wire fraud, in violation of 18 U.S.C. § 1343, and conspiracy to commit wire fraud,
in violation of 18 U.S.C. § 1349. Montoya presents two claims; Olivas, five. Each
claim is subject to a narrow standard of review because it was not preserved in
district court. AFFIRMED.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-50463 Document: 00511492360 Page: 2 Date Filed: 05/31/2011

                                    No. 10-50463

                                           I.
      Atlas Pipeline Partners, L.L.P. sold condensate produced from gathering and
transporting natural gas. H2Oil Recovery Services, Inc., based in Utah with a
facility in Texas, purchased condensate. Olivas owned Freedom Oilfield Vacuum
Service and contracted with Atlas to remove condensate from its pipelines. Instead
of placing it in Atlas’ tanks, Olivas, with the help of two H2Oil employees, would
steal it and sell it to H2Oil by using false run tickets. They were transmitted by
email or fax (wire transfers) to H2Oil’s office in Utah, which sent payment to Olivas
or Freedom.
      A jury found Olivas and Montoya guilty on ten counts of wire fraud (one
count was dismissed at trial) and one count of conspiracy. Olivas was sentenced,
inter alia, to 76 months’ imprisonment for each count; Montoya, inter alia, to 37
months for each count. The sentence for each count was to be served concurrently.
                                          II.
                                          A.
      Montoya contends the district court abused its discretion by failing to
question a sleeping juror and take appropriate remedial action. (Along that line,
Montoya’s ineffective-assistance-of-counsel claim for that incident is addressed in
part II.C.)
      An attorney for the Government informed the court that a juror was sleeping
through defense counsel’s closing argument. Because Montoya failed to object in
district court regarding that juror, review is only for plain error. E.g., United States
v. Puckett, 505 F.3d 377, 384 (5th Cir. 2007). Under such review, Montoya must
show a clear or obvious error that affected his substantial rights. Id. Even if he
does so, our court retains discretion to grant relief and generally will do so only
when the error “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings”. Id. (citation and internal quotation marks omitted).
      Montoya maintains he was prejudiced because the juror slept during a
critical phase of trial. See United States v. Cronic, 466 U.S. 648, 659 (1984) (noting
trial unfair if defendant denied counsel at critical stage). He asserts that the court

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should have: questioned the juror to determine how much of the argument was
missed; and remedied the situation by allowing defense counsel additional time for
argument.
      Upon being advised that a juror was sleeping, the district judge required the
jury to stand and stretch; he also asked the jurors if they needed water and told
them they were free to remove their jackets. There is no evidence the juror slept
through presentation of evidence or the court’s instructions to the jury, one of those
instructions being that attorney’s arguments are not evidence. Accordingly, there
is no showing of prejudice sufficient for plain error.
                                           B.
      Olivas contends: there was insufficient evidence to prove he knew that wire
transfers—paperwork which had to be submitted to H2Oil in Utah in order to
receive payment—would follow in the ordinary course of business, or that such
transfers were foreseeable to him; the district court erred at voir dire in questioning
jurors regarding oil-industry ethics; it erred by not including certain items during
preliminary instructions to the jury; and the Government made improper
statements in its opening statement and closing argument.
                                           1.
       Olivas maintains there was no evidence he knew of interstate wire transfers
or could reasonably foresee them. At the close of the Government’s case, he moved
under Rule 29 for judgment of acquittal, contending a rational trier of fact could not
find that he “intended to defraud Atlas and in doing so committed wire fraud in any
way, shape, or form”. At the close of his case, he reurged this motion for reasons
“identical to the previous [motion]”.
      “Where, as here, a defendant asserts specific grounds for a specific element
of a specific count for a Rule 29 motion, he waives all others for that specific count.”
United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (emphasis in original).
Because Olivas failed in his Rule 29 motion to raise the issue presented here,
review is only for a manifest miscarriage of justice. United States v. McDowell, 498
F.3d 308, 312 (5th Cir. 2007) (using this narrow standard where motion for

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judgment of acquittal insufficiently preserves a claim). This standard is much
narrower than had the issue been preserved in district court, Herrera, 313 F.3d at
885; the record is reviewed to determine whether it is devoid of evidence that Olivas
either knew of the wire transfers or they were foreseeable to him, or the evidence
is so tenuous that a conviction is shocking. United States v. Phillips, 477 F.3d 215,
219 (5th Cir. 2007).
      To prove wire fraud, the Government must establish:          (1) a scheme to
defraud; and (2) defendant used interstate wire communication facilities, or caused
another person to use such facilities, for the purpose of carrying out the scheme.
18 U.S.C. § 1343; United States v. Radley, 632 F.3d 177, 184 (5th Cir. 2011). The
court properly instructed the jury that, to “cause” interstate wire facilities to be
used, defendant must do “an act with knowledge that the use of the wire facilities
will follow in the ordinary course of business or where such use can reasonably be
foreseen”. See Pereira v. United States, 347 U.S. 1, 8-9 (1954).
      Olivas has failed to satisfy the manifest-miscarriage-of-justice standard. The
record reflects: run tickets were sent from H2Oil’s Texas office to its Utah office;
the Utah office was in charge of authorizing payments and mailing them; and
Olivas or Freedom received such payments. An employee for H2Oil testified that
H2Oil’s corporate office was in Utah, and that the run tickets were sent to that
office. Another H2Oil employee affirmed that the Utah office was in charge of
paying invoices. Thus, the record contained evidence that, in order to receive
authorization for payment, use of interstate wire facilities was at least foreseeable
to Olivas. See, e.g., United States v. Faulkner, 17 F.3d 745, 773 (5th Cir. 1994).
                                         2.
      Olivas also claims error in: the district court’s questioning the jury during
voir dire about oil-industry ethics and not including certain items during
preliminary instructions to the jury, provided between voir dire and the
Government’s opening statement; and the Government’s opening statement and
closing argument. Because he did not object in district court to these claimed



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errors, review is only for plain error. See Puckett, 505 F.3d at 384. For each claim,
Olivas fails to show such error.
                                          a.
      Olivas contends the district court erred at voir dire by asking the venire
members whether they thought dishonest practices were accepted or encouraged
in the oil industry. He maintains he was prejudiced because that question “created
an atmosphere in the courtroom whereby anyone working in the oil field was
presumably dishonest”.
      Voir dire is critical to assuring defendant’s Sixth Amendment right to an
impartial jury. See, e.g., Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).
As such, the trial judge is afforded broad discretion in conducting it and may assess
impartiality and credibility by relying on his “own evaluations of demeanor
evidence and of responses to questions”. Id.; see also United States v. Birdsell, 775
F.2d 645, 652 (5th Cir. 1985).
                                          b.
      Olivas next asserts the court erred by failing to remind the jury, during
preliminary instructions, of the Government’s burden of proof, the presumption of
innocence, and defendant’s right not to testify. Even assuming the court should
have done so, its jury charge did.
                                          c.
      Olivas’ next claim concerns the following statements by the Government
during its opening statement and closing argument: (1) it would be undisputed that
the condensate sold to H2Oil came from Atlas’ facilities; (2) a Government witness
was truthful; (3) the jurors’ relatives may have been victimized by the offense; (4)
a valid reasonable doubt could be reached only at the end of deliberations; (5) a
conspiracy could be found if defendant agreed with others not charged; (6) indirectly
alluding to Olivas’ decision not to testify; (7) expressing personal opinions; and (8)
relying on the prestige of the United States Attorney’s office to bolster the
testimony of a witness.



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      To determine whether substantial rights were affected, a court reviews: the
magnitude of the statement’s prejudice; the effect of any cautionary instruction
given by the court; and the strength of the evidence of defendant’s guilt. United
States v. Duffaut, 314 F.3d 203, 211 (5th Cir. 2002). “The determinative question
is whether the prosecutor’s remarks cast serious doubt on the correctness of the
jury’s verdict.” United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004).
      Some of these statements were not error. Stating that the evidence would be
undisputed that the condensate sold was from Atlas’ facilities was not an
intentional statement regarding Olivas’ decision not to testify. Similarly, stating
that a Government witness would “tell you quite honestly that he’s hoping . . . [for
a] lesser sentence” was not an expression of personal belief as to the truthfulness
of that witness.
      Arguably, some statements were improper; but, none affected Olivas’
substantial rights or cast serious doubt on the correctness of the verdict. Any
prejudice caused by these statements was minimal. The court instructed the jury
that “any statements, objections, or arguments by the lawyers are not evidence”.
It also instructed the jury that the Government had the burden of proving guilt
beyond a reasonable doubt. Moreover, the evidence strongly pointed towards
Olivas’ guilt.
                                        C.
      Montoya and Olivas claim ineffective assistance of counsel (IAC) concerning
the foregoing claimed errors. As a general rule, our court will not address IAC
claims on direct appeal unless they were raised in district court. United States v.
Valuck, 286 F.3d 221, 229 (5th Cir. 2002). An exception is “where the record allows
us to evaluate fairly the merits of the claim”. United States v. Navejar, 963 F.2d
732, 735 (5th Cir. 1992) (citation and internal quotation marks omitted). That
exception does not apply here.
                                        III.
      For the foregoing reasons, the judgments are AFFIRMED.



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