            Case: 18-12865   Date Filed: 05/10/2019   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12865
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:17-cr-00193-TWT-CMS-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

LESHANDA HUNTE,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (May 10, 2019)

Before ED CARNES, Chief Judge, TJOFLAT, and JORDAN, Circuit Judges.

PER CURIAM:
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       Leshanda Hunte appeals her convictions for one count of conspiracy to

commit theft of government property, in violation of 18 U.S.C. § 371, and five

substantive counts of theft of government property, in violation of 18 U.S.C.

§§ 641 and 2. She argues that the district court plainly erred when it denied her

request at trial to speak with her attorney for five minutes about whether she would

testify.

                                          I.

       Hunte and her husband, Raphael Menard, were convicted for fraudulently

causing tens of thousands of dollars in tax refunds to be transferred to their bank

accounts between September and November 2012. Employees at their Chase Bank

branch in Dunwoody, Georgia noticed the suspicious activity and froze the

accounts. When Hunte came in to attempt to unfreeze the accounts she was

informed that the individuals whose refund checks she had received would need to

come in with two forms of identification. Hunte successfully unfroze $8,573 when

she came to the bank with fake identification documents and an individual

claiming to be a taxpayer named Joseph Allen. But when Menard came to the

bank with another individual claiming to be a taxpayer named Antonio Rubie, his

attempt failed because the branch manager suspected the identification was fake.

Menard was arrested along with the coconspirator impersonating Rubie. In

Menard’s car officers found an ID and credit card in Antonio Rubie’s name along


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with a sheet of paper on which “Antonio Rubie” had been written repeatedly in

cursive.

      At trial a witness named Pier Mason testified that she had sought assistance

filing her taxes from a woman calling herself Shanda Johnson. Mason identified a

tax return bearing her name and social security number, but testified that the rest of

the information on the return was false and that she did not authorize the return to

be filed. When Mason received only a $905 return despite being told by the IRS

that it had paid a $2,905 return on her behalf, she called “Johnson,” who told her

that the IRS was lying. Mason demanded a Preparer Tax Identification Number

but “Johnson” did not provide her one, and she was unable to contact “Johnson”

again. A review of Mason’s return showed that the missing $2,000 had been

deposited in an account owned solely by Hunte. Several other witnesses testified

identifying tax returns that contained their name and social security numbers but

otherwise false information.

      Before beginning the defense’s case, Hunte’s counsel informed the court that

he needed to step outside to speak with Menard’s counsel. The court instructed

him to “do that now, because at some point I have got to advise . . . [Hunte] of her

right to testify and not testify.” The court then took a 35-minute recess. Hunte’s

counsel then requested additional time and the court took another 22-minute

recess. Menard then took the stand. He admitted to participating in a tax fraud


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scheme but denied that Hunte knew about it. He testified that he asked Hunte to go

with his coconspirator, Ruben Lawrence, to the bank to unfreeze the accounts, and

that he did not tell her why the accounts were frozen. On cross-examination he

stated that Lawrence and Hunte were related.

      After Menard’s testimony the court advised Hunte that she had the right to

testify or not testify and the decision was solely hers. She said that she was

“strongly considering” testifying and asked if she could have five minutes to

decide, but the court said she needed to make a decision immediately. She then

said that she would not testify and the court asked if she had discussed the decision

with her lawyers. She responded that she wanted to speak with them, and the court

said that she had had plenty of time to do that and that it had brought the question

up before Menard’s testimony. Her attorney did not object, and Hunte stated that

she would not testify. The jury convicted her on all counts and the district court

sentenced her to thirty months’ imprisonment.

                                           II.

      Hunte acknowledges that because she did not object to the alleged error

before the district court we review only for plain error. See United States v. Olano,

507 U.S. 725, 731, 113 S. Ct. 1770, 1776 (1993); Fed. R. Crim. P. 52(b). Plain

error occurs when there is (1) an error, (2) that is plain, and (3) that affects

substantial rights. United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010).


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The error must seriously affect the fairness, integrity, or public reputation of

judicial proceedings. Id. To establish that an error affected her substantial rights,

the appellant is ordinarily required to establish that there is “a reasonable

probability that the error affected the outcome of the trial.” United States v.

Marcus, 560 U.S. 258, 262, 130 S. Ct. 2159, 2164 (2010). We make that

determination “by weighing the record as a whole, examining the facts, the trial

context of the error, and the prejudice created thereby as juxtaposed against the

strength of the evidence of [the] defendant’s guilt.” United States v. Margarita

Garcia, 906 F.3d 1255, 1267 (11th Cir. 2018) (quotation marks omitted).

      The Supreme Court has recognized that certain structural errors might meet

this test “regardless of their actual impact on an appellant’s trial.” Marcus, 560

U.S. at 263, 130 S. Ct. at 2164. Such “structural errors are a very limited class of

errors that affect the framework within which the trial proceeds, such that it is

often difficult to assess the effect of the error.” Id. at 263, 130 S. Ct. at 2164–65

(quotation marks and alterations omitted). If an error is structural, we assume

prejudice and there is no room for application of the harmless error rule. United

States v. Roy, 855 F.3d 1133, 1142 (11th Cir. 2017).

      Even if we assume that the district court erred by declining to grant Hunte

more time to consider whether to testify, that error did not affect her substantial

rights because there is no reasonable probability that it would have changed the


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outcome of her trial. As an initial matter, we can assess the effect of the error so it

is not a structural error barring the application of the harmless error rule. See

United States v. Hung Thien Ly, 646 F.3d 1307, 1318 n.8 (11th Cir. 2011) (noting

that binding precedent “suggests that harmless-error analysis applies to the right to

testify”). Looking to the record as a whole and the considerable evidence

presented by the government, there is no reasonable probability that Hunte’s

testimony would have changed the outcome of the trial. It is not even clear that if

Hunte had spoken with her attorney, she would have decided to testify. And even

if we assume that she would have, Menard testified that he was solely responsible

for the fraudulent activity and that Hunte was unaware of the scheme. The jury

rejected that explanation, and there is no reason to believe that the jury would have

believed Hunte if she had taken the stand and said the same thing, especially since

the fraudulently obtained $2,000 involving taxpayer Pier Mason was deposited in

an account owned solely by Hunte.

      AFFIRMED.




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