     Case: 11-51147       Document: 00512220959          Page: 1     Date Filed: 04/25/2013




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

                                                                             FILED
                                                                            April 25, 2013

                                       No. 11-51147                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

KURT BRANHAM BARTON,

                                                   Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:11-CR-83


Before DEMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       On February 15, 2011, defendant-appellant Kurt Barton was indicted on
thirty-nine counts of conspiracy, fraud, and money laundering charges alleging
that Barton defrauded would-be investors out of millions of dollars by
orchestrating a Ponzi-like scheme through his company Triton Financial and
related entities. The district court appointed counsel on February 25, 2011 and
set a trial date of April 25. The district court later continued the trial date to
August 8, 2011 on Barton’s motion. In July 2011, Barton moved for a second

       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
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                                  No. 11-51147

continuance and for the appointment of additional counsel to help prepare and
try the case. The district court granted the latter motion and appointed a second
defense attorney but denied the motion for a second continuance. The case went
to trial as scheduled on August 8, 2011. On August 17, the jury found Barton
guilty on all counts. Thereafter, Barton moved for a new trial pursuant to
Federal Rule of Criminal Procedure 33, arguing that the district court
improperly denied the second continuance request and that Barton was denied
his Sixth Amendment right to effective assistance of counsel under Strickland
v. Washington, 466 U.S. 668 (1984). The district court denied the Rule 33
motion. The court sentenced Barton to 204 months imprisonment to be followed
by five years of supervised release and ordered restitution in excess of
$63,000,000. On appeal, Barton raises four challenges to his various convictions.
We affirm.
      First, as in his motion for a new trial, Barton again argues that the district
court abused its discretion by denying his second motion for a continuance.
“Trial judges have broad discretion in deciding requests for continuances, and
we review only for an abuse of that discretion resulting in serious prejudice.”
United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir. 2009). Here, the district
court afforded Barton one continuance of more than three months and appointed
additional counsel at Barton’s request. Barton’s generalized assertions that his
attorneys could have presented a stronger defense with more time to prepare fall
short of demonstrating serious prejudice. See Stalnaker, 571 F.3d at 439; United
States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007). Barton thus fails to show that
the trial court abused its broad discretion by declining to grant him a second
continuance.
      Second, Barton argues that he was denied his Sixth Amendment right to
counsel. Unlike in his motion for a new trial before the district court, Barton’s
argument to this court is that his attorneys altogether failed to provide

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                                  No. 11-51147

meaningful representation such that under the rule of United States v. Cronic,
466 U.S. 648 (1984), he need not show Strickland prejudice. Barton’s reliance
on Cronic is misplaced. “When [the Supreme Court] spoke in Cronic of the
possibility of presuming prejudice based on an attorney’s failure to test the
prosecution’s case, [the Court] indicated that the attorney’s failure must be
complete.” Bell v. Cone, 535 U.S. 685, 696-97 (2002) (citing Cronic, 466 U.S. at
659). Here, counsel represented Barton throughout the proceedings below.
Barton’s first-appointed attorney successfully moved for the appointment of a
second attorney who in turn assisted with the final month of preparation and
advocated on Barton’s behalf during and after trial. During trial, counsel lodged
objections, examined witnesses, and argued the case to the jury. Any deficiency
in the quality of this representation plainly sounds under Strickland rather than
Cronic. See Gochicoa v. Johnson, 238 F.3d 278, 284-85 (5th Cir. 2000) (“When
the defendant complains of errors, omissions, or strategic blunders, prejudice is
not presumed[] . . . .”). To the extent that Barton in the alternative seeks to
pursue a Strickland claim, we follow our normal practice and decline to consider
it, without prejudice to Barton’s pursuing such a claim in a later collateral
proceeding. E.g., United States v. Montes, 602 F.3d 381, 387-88 (5th Cir. 2010).
      Third, Barton argues that there was insufficient evidence to support
several of the wire fraud and money laundering convictions involving one Triton
investor because the government did not prove that Barton caused unapproved
transfers from the victim’s Fidelity Investments account by means of false
representations. “We review properly preserved claims that a defendant was
convicted on insufficient evidence with substantial deference to the jury verdict,
asking only whether a rational jury could have found each essential element of
the offense beyond a reasonable doubt.” United States v. Davis, 690 F.3d 330,
336 (5th Cir. 2012). “To prove wire fraud, the government must prove: (1) a
scheme or artifice to defraud; (2) material falsehoods; and (3) the use of

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interstate wires in furtherance of the scheme. Violation of the wire-fraud statute
requires the specific intent to defraud, i.e., a ‘conscious knowing intent to
defraud.’” United States v. Brooks, 681 F.3d 678, 700 (5th Cir. 2012) (citations
omitted). Our review of the record indicates that ample evidence supported the
jury’s verdict as to the challenged counts. The victim testified that he authorized
one transfer of $50,000 to Triton from his account but never authorized further
transfers. Barton’s executive assistant testified at length about the process she
used to forge financial documents for Barton, including fraudulent
authorizations to transfer money from the Fidelity account of another Triton
investor. The executive assistant testified that she later “created a template” for
a similar authorization form for the account of the victim at issue and identified
Barton’s handwriting on the completed forged transfer forms. A Federal Bureau
of Investigations agent who searched Triton’s offices testified that he found files
containing the forged transfer forms for the transfers at issue, each of which
contained an identical photocopy of the victim’s signature. Because the evidence
was sufficient to support the convictions on these wire fraud counts, Barton’s
challenge to the related money laundering counts on this same basis likewise
fails.
         Finally, Barton challenges his conviction on five other counts of money
laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i). That statute provides:
         Whoever, knowing that the property involved in a financial
         transaction represents the proceeds of some form of unlawful
         activity, conducts or attempts to conduct such a financial
         transaction which in fact involves the proceeds of specified unlawful
         activity . . . knowing that the transaction is designed in whole or in
         part . . . to conceal or disguise the nature, the location, the source,
         the ownership, or the control of the proceeds of specified unlawful
         activity[] . . . shall be sentenced to a fine . . . or imprisonment for not
         more than twenty years, or both.




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18 U.S.C. § 1956(a)(1)(B)(i). Albeit in conclusory fashion, Barton contends that
under United States v. Santos, 553 U.S. 507 (2008), the government was
required to prove that the financial transactions at issue in these money
laundering counts involved “profits” of the Triton scheme, rather than “gross
receipts,” and failed to do so.
      We have previously discussed at length the precedential effect of the
fractured decision in Santos. See United States v. Lineberry, 702 F.3d 210 (5th
Cir. 2012); Garland v. Roy, 615 F.3d 391 (5th Cir. 2010):
      “In Garland, we . . . recogniz[ed] Justice Stevens’ [Santos]
      concurrence as controlling, [and] then interpreted his concurrence
      as a ‘two-part’ holding.” The first part of Justice Stevens’
      concurrence held that the rule of lenity requires a finding that
      “proceeds” means “profits” in cases where defining proceeds as
      “gross receipts” would result in a “merger problem.” We noted in
      Garland that a merger occurs “when a defendant could be punished
      for the same ‘transaction’ under the money-laundering statute as
      well as under another statute, namely the statute criminalizing the
      ‘specified unlawful activity’ underlying the money-laundering
      charge.” Thus, a “merger problem” would exist “if ‘proceeds’ were to
      be defined as ‘receipts’ rather than ‘profits,’” and the
      money-laundering charge could be based on the same “transaction”
      as the “predicate crime.” The second part of Justice Stevens’
      concurrence held that, in cases where there is no “merger problem,”
      there should be a presumption that “proceeds” should be defined as
      “gross receipts,” but that this presumption could be rebutted by the
      legislative history of the money-laundering statute.
Lineberry, 702 F.3d at 215-16 (citations omitted).
      Barton, however, appears to ignore our earlier distillations of the
governing principles from Santos and instead erroneously relies on “[t]he Santos
plurality[’s] . . . view that the meaning of the word ‘proceeds’ cannot change with
the statute’s application.” We conclude that under the analysis we adopted in
Garland, Barton has not shown that the convictions he challenges implicate this
merger problem because those counts explicitly were not premised on the same


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transactions as any of the wire fraud counts. See Garland, 615 F.3d at 402. The
underlying wire fraud counts addressed certain specific transactions whereby
Barton fraudulently obtained funds from “investors” in the Triton scheme. The
related money laundering charges focused on specific distinct transactions
further transferring those unlawfully-obtained funds onward to various third-
party entities. This case is thus distinct from Garland, where the convictions
implicated the Santos merger problem because “it [was] possible that the same
payout of proceeds as ‘returns’ to investors [both] formed the basis of the
[defendant’s] mail and securities fraud convictions, [and also] proved the element
of the money-laundering charge that [the defendant] transacted in ‘proceeds’ of
the underlying unlawful activity.” See id. at 395-96. Barton has failed to
demonstrate that Santos requires reversal of the challenged money laundering
convictions.
      Having concluded that each of Barton’s arguments for reversal lacks merit,
we AFFIRM the judgment of the district court in all respects.




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