     Case: 11-20516        Document: 00512498628          Page: 1     Date Filed: 01/13/2014




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

                                                                              FILED
                                                                           January 13, 2014

                                        No. 11-20516                         Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                    Plaintiff–Appellee,
v.

GILBERT BARRY ISGAR; VINCENT WALLACE ALDRIDGE; TORI ELYSE
ALDRIDGE,

                                                    Defendants–Appellants.



                    Appeals from the United States District Court
                         for the Southern District of Texas


Before OWEN and HAYNES, Circuit Judges, and LEMELLE,* District Judge.
PRISCILLA R. OWEN, Circuit Judge:
      This case arises from a mortgage fraud scheme. At the conclusion of a jury
trial, Vincent Wallace Aldridge and Tori Elyse Aldridge (the Aldridges), and
Gilbert Barry Isgar (collectively, Defendants) were convicted of conspiracy to
commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349,
aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2 and 1343,
conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h),
and aiding and abetting money laundering under 18 U.S.C. §§ 2 and 1957. The
Defendants appeal their convictions. We affirm.


      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
    Case: 11-20516     Document: 00512498628      Page: 2    Date Filed: 01/13/2014



                                  No. 11-20516
                                         I
      The Defendants’ convictions arose out of the sale of nine newly constructed
town homes in the Memorial Park area of Houston, Texas. The properties at
issue were in a development called “Maxie Village” and were built by Waterford
Custom Homes. Isgar owned 50% of Waterford.
      The closings were conducted by the First Southwestern Title Company
(FSW), which was operated by the Aldridges and for whom Vincent Aldridge was
also a fee attorney doing business as Aldridge & Associates. The Aldridges were
both authorized signers on Aldridge & Associates’ Interest Only Lawyers Trust
Account (IOLTA).
      The Aldridges recruited three “straw purchasers” to buy eight of the
townhomes. Vincent Aldridge purchased the ninth. The straw purchasers were
individuals who wanted to invest in real estate and were told that they would
receive $10,000 for each property they purchased; that they would not have to
pay the mortgages because tenants would be found to lease the properties; and
that after approximately one year, the residences would be resold and the straw
purchasers might receive additional money at that time.              These straw
purchasers provided the Aldridges with their respective names, social security
numbers, and income information. The Aldridges then used the accurate names
and social security numbers, combined with falsified information about income,
assets, and intent to use the property as a primary residence, to submit
fraudulent loan applications to lenders. The false representations that each
purchaser would be residing in the home purchased permitted the Aldridges to
obtain 100% financing.
      Isgar inflated the sale price of the properties through falsified construction
invoices and amendments to the sales contracts. The lenders approved loans to
purchase the properties at these inflated practices. When the lenders wired the
loan amounts to FSW, disbursements were made to Isgar as payment for the

                                         2
    Case: 11-20516     Document: 00512498628     Page: 3   Date Filed: 01/13/2014



                                  No. 11-20516
properties. However, other disbursements were made to Aldridge & Associates’
IOLTA as well as to Superb Construction that were not disclosed on the
settlement statement to the lenders, as required by the Department of Housing
and Urban Development (HUD).
      The United States mail, including interstate commercial carriers, and wire
communications were used to execute this scheme. Loan documents traveled
across state lines by facsimile, mail and email. Loan proceeds were wire
transferred from the lenders’ banks to FSW.
      Also involved in the scheme were Alvin Eiland, a mortgage broker, and his
employee, Gary Robinson. Robinson assisted Vincent Aldridge in forming
Superb Construction, which laundered proceeds from these transactions. Both
Eiland and Robinson have pled guilty to conspiracy to commit wire fraud and
money laundering and are not parties to this appeal.
      A federal grand jury returned a 19-count indictment charging the
Aldridges with conspiracy to commit mail and wire fraud, in violation of 18
U.S.C. §§ 1341, 1343, 1349 (Count 1), aiding and abetting wire fraud, in violation
of 18 U.S.C. §§ 2, 1343 (Counts 2-12), conspiracy to engage in money laundering,
in violation of 18 U.S.C. § 1956(h) (Count 13), and aiding and abetting money
laundering, in violation of 18 U.S.C. §§ 2, 1957 (Counts 14-19). Isgar was named
only in Counts 1-13. A jury returned a guilty verdict as to all three defendants
on all counts.
      The Defendants appeal their convictions on multiple grounds. Each
asserts that the evidence is insufficient to support a conviction. The Aldridges
challenge subject matter jurisdiction and venue. They further contend that they
are entitled to a new trial because certain FSW documents should not have been
admitted, there was prosecutorial misconduct, and that the cumulative errors




                                        3
     Case: 11-20516          Document: 00512498628        Page: 4     Date Filed: 01/13/2014



                                         No. 11-20516
denied them a fair trial.1 Tori Aldridge contends that her indictment was
constructively amended, and that the district court erred in the denying her
motion for new trial and request for an evidentiary hearing. She also claims
ineffective assistance of counsel. Vincent Aldridge appeals his sentence and the
amount of restitution owed.
                                               II
       Each of the Defendants has challenged the sufficiency of the evidence.
“Our review of the sufficiency of the evidence is highly deferential to the
verdict.”2 “The relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”3 “[A]ll
reasonable inferences and credibility choices [are] made in support of a
conviction.”4 “Our review is thus limited to whether the jury’s verdict was
reasonable, not whether we believe it to be correct.”5 “Finally, ‘[i]t is not
necessary that the evidence exclude every reasonable hypothesis of innocence or
be wholly inconsistent with every conclusion except that of guilt,’ and any
conflict in the evidence must be resolved in favor of the jury’s verdict.”6


       1
         On December 3, 2012, Vincent filed a motion in this court seeking to adopt Tori’s brief.
On December 18, 2012, Tori filed a letter seeking to adopt Vincent’s brief. Under Federal Rule
of Appellate Procedure 28(I), a defendant may adopt another’s arguments “only” if those claims
are not fact specific. United States v. Cantu-Ramirez, 669 F.3d 619, 632 n.4 (5th Cir. 2012),
cert. denied, 133 S. Ct. 247 (2012). Accordingly, we treat all arguments raised by Tori and
Vincent that do not concern the particular facts of their cases as joint arguments.
       2
        United States v. Moreno-Gonzalez, 662 F.3d 369, 372 (5th Cir. 2011) (internal
quotation marks omitted).
       3
           Id. (alteration omitted).
       4
           United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997).
       5
           United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001).
       6
        Moreno-Gonzalez, 662 F.3d at 372 (alteration in original) (citation omitted) (quoting
United States v. Lage, 183 F.3d 374, 382 (5th Cir. 1999)).

                                                4
    Case: 11-20516    Document: 00512498628     Page: 5   Date Filed: 01/13/2014


                                 No. 11-20516
                                       A
      Tori Aldridge argues that there was insufficient evidence that a prior
conspiracy between her and Eiland or her and Robinson existed and asserts that
no reasonable jury could find that a conspiracy existed after March 26, 2005.
She contends that in every transaction with Eiland or Robinson, she received
only the closing fees disclosed on the HUD form. She points to evidence that she
suggests exonerates her.    A review of the record, however, reveals ample
evidence from which the jury could have reasonably concluded that Tori Aldridge
acted with the intent to further the fraudulent scheme.
      At trial, Robinson testified that Tori Aldridge prepared the falsified
paperwork concerning a straw purchaser’s income and intent to use the property
as a primary residence.     He explained that he received and returned the
paperwork to her. One of the straw purchasers, Shawn Stevens, testified that
in the documents he signed in purchasing two of the Maxie Village town homes
less than one month apart, Tori Aldridge attested that each would be used as his
primary residence when in fact, neither would be or actually was used as a
residence by him. Tori Aldridge notarized documents that stated Stevens had
face-to-face meetings with her when that was false, and she attested that
signatures and initials on loan documentation were those of Stevens, though
Stevens testified that those signatures and initials were forgeries. One witness
stated that Tori Aldridge had expressly directed her to draft a statement lying
about her income. Tori Aldridge’s signature was on this falsified paperwork. A
witness from one of the lenders also verified that Tori Aldridge had signed the
closing paperwork, attesting to the accuracy of the information provided therein.
There was sufficient evidence from which a jury could conclude that Tori
Aldridge was an active participant in the fraudulent scheme.




                                       5
     Case: 11-20516          Document: 00512498628         Page: 6     Date Filed: 01/13/2014


                                           No. 11-20516
                                                B
       Isgar argues that the Government failed to present sufficient evidence that
he was a knowing participant in the fraud. He cites United States v. Curtis7 for
the proposition that the Government was required to present proof that the
actual sale prices of the properties were inflated in the form of either an
appraisal report or appraiser testimony and contends that in the absence of such
proof, this court must reverse. Isgar also contends that his own damaging
statement that the values of these properties were slightly inflated is insufficient
to meet the Government’s burden.
       Isgar is mistaken that Curtis requires proof of an appraisal to support a
conviction for conspiracy to commit mail and wire fraud.8 In fact, in Curtis, we
emphasized that “circumstantial evidence may establish the existence of a
conspiracy, as well as an individual’s voluntary participation in it.”9 We also
noted that a “defendant’s knowing and voluntary participation in the conspiracy
can even be established solely on the basis of the testimony of a coconspirator . . .
so long as that testimony is not incredible as a matter of law.”10
       Here, there was circumstantial evidence supporting Isgar’s knowing
participation in the fraud. Robinson testified that Isgar’s role in the scheme
required that Isgar “be okay with inflating the price.”                   FBI Agent Robert
McCallum also testified that Isgar handled the day-to-day business affairs of


       7
           635 F.3d 704 (5th Cir. 2011).
       8
        Curtis, 635 F.3d at 718 (“The Government was not specifically obligated to prove that
the values stated in the appraisal reports were falsified or inflated. Rather, it had to prove
that Curtis made some kind of a false or fraudulent material misrepresentation in service of
a scheme to defraud.”). An overt act was required in Curtis because the Government charged
the defendant with conspiracy under 18 U.S.C. § 371. Our discussion, then, was focused on
the overt act, not on the appraisal itself.
       9
           Id. at 719 (alteration omitted).
       10
            Id. (alteration in original) (internal quotation marks omitted).

                                                 6
     Case: 11-20516      Document: 00512498628         Page: 7    Date Filed: 01/13/2014


                                      No. 11-20516
Waterford and that Isgar had signed the disbursements to the Aldridge’s IOLTA
and to Superb Construction. Isgar’s own statements support the inference that
he was a knowing participant. Isgar explained to Agent McCallum that “the
sales prices of the properties had been raised” and supported in the
documentation with construction repair invoices or amendments added to the
sales contracts giving the purchaser a $60,000 allowance to pay the contractor
of the purchaser’s choice to make repairs. There was evidence that $60,000 in
construction repairs or upgrades to the Maxie Village newly constructed town
homes was unnecessary.
       Isgar admitted to FBI agents that with regard to the town home Isgar sold
to Vincent Aldridge, Isgar made a disbursement to Aldridge the day after the
sale closed, and Isgar said that he knew that he should not have done so. Isgar
also participated in disbursements to Superb Construction Company, the entity
formed by Vincent Aldridge but opened under Robinson’s name. No legitimate
purpose for the disbursements to Superb Construction Company was evident.
       Isgar was also a licensed real estate agent. Though he knew that the
value of the units was inflated, he always received his full asking price and no
negotiation with buyers was necessary.              His company, Waterford, made
approximately $30,000 to $60,000 in profit on each sale.
       Isgar’s contention that this statement was insufficient to demonstrate his
knowing participation goes to the weight of the evidence, and “[t]he jury retains
the sole authority to weigh any conflicting evidence.”11 The jury here could have
reasonably concluded from Isgar’s acknowledgment of the inflated prices as well
as from the other circumstantial evidence that Isgar knowingly participated in
the scheme.



       11
         United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012) (internal quotation marks
omitted)).

                                             7
    Case: 11-20516         Document: 00512498628         Page: 8    Date Filed: 01/13/2014


                                        No. 11-20516
                                              C
      Vincent Aldridge challenges the sufficiency of the evidence underlying his
convictions for conspiracy to commit money laundering under 18 U.S.C.
§§ 1956(h) and 1957. The jury was instructed that the transfers of money from
FSW to the Aldridges’s IOLTA account had to involve “proceeds” of an unlawful
activity, and the district court instructed the jury that “proceeds” was limited
to the “profits,” not “gross receipts,” of unlawful activity. Aldridge argues that
the money deposited in the IOLTA account was used to pay two of the straw
purchasers and to make mortgage payments on the town homes and that
accordingly, the funds were used to further the conspiracy and were not profits
retained by him.
      Vincent Aldridge relies on United States v. Santos.12 In Santos, a plurality
of the Supreme Court held that the term “proceeds” under § 1956 meant “profits”
rather than “gross receipts,” at least in part to prevent merger issues.13 “The
concept of merger is implicated when a defendant is convicted under two
criminal statutes for what is actually a single crime; that is, convicted under the
money laundering statute for essentially the same conduct that constitutes the
conduct of the ‘unlawful activity’ upon which the money laundering count is
premised.”14 Thus, Vincent argues, just as Santos held that the funds from
which the costs of the illegal scheme itself must be paid are not “profits,” the
evidence in the instant case of funds transferred from FSW into his IOLTA
likewise do not represent “profits” because this money was used to pay the
expenses incurred in executing the wire fraud scheme.




      12
           553 U.S. 507 (2008).
      13
           Santos, 553 U.S. at 515.
      14
           United States v. Kennedy, 707 F.3d 558, 563 (5th Cir. 2013).

                                               8
    Case: 11-20516          Document: 00512498628         Page: 9     Date Filed: 01/13/2014


                                           No. 11-20516
      We rejected this argument in United States v. Kennedy.15 There, we
addressed a similar mortgage fraud scheme and held that the subsequent
disbursements of mortgage loan funds from the title company to the defendants’
various shell companies constituted different conduct underlying a different
crime.16      We reasoned that wire fraud was completed when the lender
transmitted funds and that subsequent expenditures to make down payments
on newly acquired mortgages and to make bonus payments to borrowers to
encourage them to invest again were the use of profits to assist the defendants
in committing new crimes of wire fraud.17 We concluded that payments of this
nature “could not be anything but [the use of] profits.”18
      In the present case, the Government presented evidence that Isgar
inflated the sales prices of the properties through fraudulent construction
invoices and amendments to the sales contracts such that the subsequent
disbursement of the amounts in excess of the actual price constituted only
profits. Second, the Government also demonstrated that the $10,000 payments
to straw purchasers were given at least in part to encourage them to invest
again, and that the disbursements to both the Aldridges’s IOLTA and Superb
Construction were unsupported by consideration but were instead direct
payments of profits from the fraudulent scheme.                     Accordingly, just as in
Kennedy, there was sufficient evidence from which a jury could have reasonably
found that the transferred funds were profits, and thereby formed the basis for
Vincent Aldridge’s money laundering convictions.




      15
           707 F.3d 558 (5th Cir. 2013).
      16
           See Kennedy, 707 F.3d at 560-62, 566-67.
      17
           Id. at 566-67.
      18
           Id. at 567.

                                                9
    Case: 11-20516          Document: 00512498628         Page: 10     Date Filed: 01/13/2014


                                         No. 11-20516
                                               III
                                                A
       Tori Aldridge contends that the district court lacked subject matter
jurisdiction over the wire fraud counts. She argues that, because state law
required the wire transmissions at issue in this case, the transmissions could not
have been unlawful. She asserts, “federal jurisdiction is improper as a matter
of law.” We disagree.
       Our review of subject matter jurisdiction is de novo.19 “Subject matter
jurisdiction . . . is straightforward in the criminal context.”20 Under 18 U.S.C.
§ 3231, “[t]he district courts of the United States have original jurisdiction . . .
of all offenses against the laws of the United States.”21                    To invoke this
jurisdictional grant, “an indictment need only charge a defendant with an
offense against the United States in language similar to that used by the
relevant statute.”22 Defects in the indictment, moreover, such as insufficient
factual allegations, do not deprive the court of jurisdiction.23 As the Supreme
Court has clarified, “a district court has jurisdiction of all crimes cognizable
under the authority of the United States and the objection that the indictment
does not charge a crime against the United States goes only to the merits of the
case.”24 The counts in the indictment against Tori Aldridge closely track the



       19
            United States v. Hazlewood, 526 F.3d 862, 864 (5th Cir. 2008).
       20
            United States v. Scruggs, 714 F.3d 258, 262 (5th Cir. 2013).
       21
            18 U.S.C. § 3231.

       22
            Scruggs, 714 F.3d at 262 (internal quotation marks and citations omitted).
       23
         See id. at 263 (“Even though a [subsequent Supreme Court case] might have rendered
the instant information factually insufficient, it did not divest the district court of subject
matter jurisdiction over the case.” (emphasis in original, internal quotation marks omitted));
United States v. Scruggs, 691 F.3d 660, 668-69 (5th Cir. 2012) (reaching a similar conclusion).

       24
            United States v. Cotton, 535 U.S. 625, 630-31 (2002).

                                               10
    Case: 11-20516          Document: 00512498628        Page: 11     Date Filed: 01/13/2014


                                         No. 11-20516
language of the corresponding statutes. The district court possessed subject
matter jurisdiction.25
       Tori Aldridge also contends that venue was improper in the Southern
District of Texas for the wire fraud charges. However, she has waived any
objection to venue. Although a defendant may challenge venue in a motion for
judgment for acquittal pursuant to Federal Rule of Criminal Procedure 29,26 the
Aldridges’ motion failed to raise any venue issue. Therefore, this issue was not
properly preserved for appellate review.27
                                               B
       Each of the Aldridges asserts that the district court abused its discretion
in admitting FSW documents concerning the real estate transactions at issue.28
The Aldridges maintain that these documents were not admissible under the
business records exception, which permits “the admission of ‘records of regularly
conducted activity’” so long as certain conditions are met,29 because the witness
offering the records had never been employed at FSW and could not testify as to
its business practices.
       The witness presenting the foundation for the admission of a record need


       25
         See Scruggs, 691 F.3d at 668 (holding that there was no jurisdictional defect when
the language of the charging document “track[ed] the statutory language” even though “the
facts proffered at the plea hearing [were] insufficient to establish that” the defendant
committed the crime).
       26
            United States v. Carreon-Palacio, 267 F.3d 381, 392-93 (5th Cir. 2001).
       27
          Carreon-Palacio, 267 F.3d at 392-93 (“In situations where adequate allegations are
made but the impropriety of venue only becomes apparent at the close of the government’s
case, a defendant may address the error by objecting at that time, and thus preserve the issue
for appellate review.”).
       28
         See, e.g., United States v. Hale, 685 F.3d 522, 538 (5th Cir. 2012) (per curiam), cert.
denied, 133 S. Ct. 559 (2012) (“We review evidentiary rulings regarding the admission of
evidence only for an abuse of discretion.” (internal quotation marks omitted)).
       29
          United States v. Ned, 637 F.3d 562, 569 (5th Cir. 2011) (per curiam) (alteration in
original) (quoting FED. R. EVID. 803(6)).

                                               11
    Case: 11-20516         Document: 00512498628         Page: 12    Date Filed: 01/13/2014


                                        No. 11-20516
not be the “author of the record or be able to personally attest to its accuracy.”30
Instead, because this exception hinges on the “trustworthiness of the records,”
a court does not abuse its discretion by admitting documents from a custodian
that never worked for the employer that created the documents if that custodian
explains “how she came to possess them and how they were maintained.”31 Here,
the witness testified, based on an affidavit from a Commonwealth Land Title
Insurance employee, that when FSW ceased to exist, Commonwealth, with
which FSW had previously had a title insurance agreement, filed suit and
obtained entry. Commonwealth took possession of all of FSW’s guaranty files,
including those at issue in this appeal. Commonwealth maintained the files and
did not remove any documents. The Commonwealth employee’s affidavit stated
that FSW’s files appeared to contain the type of records usually found in
guaranty files that a title company maintains in the ordinary course of business.
The trial witness’s employer, Fidelity National Title Group, acquired
Commonwealth and immediately placed FSW’s files in storage. Based on this
court’s precedent, the district court had sufficient evidence of trustworthiness to
admit FSW’s documents on this basis. In any event, the admission of the FSW
files was harmless error in light of the other evidence in the record of the fraud.
We therefore do not reach Vincent Aldridge’s arguments regarding the district
court’s alternative conclusion that admission of the FSW documents was
permissible under the residual hearsay exception.
                                               C
       Tori Aldridge argues that the prosecutor engaged in misconduct that
requires reversal but recognizes that because there was no contemporaneous




      30
           Id. at 570.
      31
           E.g., United States v. Morrow, 177 F.3d 272, 295 (5th Cir. 1999) (per curiam).

                                              12
   Case: 11-20516          Document: 00512498628         Page: 13    Date Filed: 01/13/2014


                                        No. 11-20516
objection at trial, our review is for plain error.32 Aldridge must show an error,
that was plain, and that affected her substantial rights, i.e., “affected the
outcome of the district court proceedings.”33 She asserts that the prosecutor
intentionally used a “dormant” guaranty file that pertained to matters outside
the statute of limitations. This resulted, Aldridge asserts, in (1) allowing the
indictment of an otherwise unindictable case, (2) creating a prior conspiracy in
order to manufacture her recruitment of the builder, (3) sponsoring perjury
known to the prosecution team, (4) creating false unity of purpose by its
introduction of false evidence and testimony that Tori Aldridge received money
when the evidence was to the contrary, and (5) a conviction based on false
information.
      The documents at issue were used by the prosecution in connection with
evidence of the purchase of town homes by Shawn Stevens, one of the straw
purchasers. Tori Aldridge also contends that the prosecutor failed to correct
Stevens’s misstatement on direct examination as to the amount of money
disbursed to Tori Aldridge in connection with Stevens’s purchase of these
properties, and contends that the prosecutor “doubled down on the uncorrected,
false testimony.”       When asked by the district court as to the accuracy of
Stevens’s statements about proceeds disbursements, the prosecutor said, “I think
it is [accurate], Your Honor. I will double check on that for you.”
      We hold there is no plain error. First, with regard to the documents at
issue, there was considerable evidence regarding a conspiracy in which Tori
Aldridge participated, including testimony from Stevens in which he confirmed
that he was a purchaser of properties in Maxie Village and the facts surrounding
his involvement. We are not persuaded that there is a reasonable probability


      32
           United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir. 2008).
      33
           Puckett v. United States, 556 U.S. 129, 135 (2009).

                                              13
    Case: 11-20516          Document: 00512498628         Page: 14       Date Filed: 01/13/2014


                                         No. 11-20516
that the jury would have failed to convict Tori Aldridge had the government not
used the documents at issue.34 Second, Stevens’s misstatement regarding
disbursements of loan proceeds merely transposed the disbursement of proceeds
from two different properties, and the disbursement worksheet noting the
correct amounts was admitted into evidence. Even assuming that the first two
elements of plain error review are met, Tori Aldridge cannot meet her burden of
showing that the error affected the outcome of the trial. Lastly, the prosecutor’s
comment to the trial judge regarding the accuracy of Stevens’s testimony does
not constitute a false, material statement such that an error, let alone a plain
error, occurred.35
                                                D
       Tori Aldridge asserts that the district court erred by constructively
amending her indictment. Because she failed to contemporaneously object to the
alleged constructive amendment of her indictment, we review her objection for
plain error.36 “The Fifth Amendment guarantees that a criminal defendant will
be tried only on charges alleged in a grand jury indictment.”37                        “A jury
instruction constructively amends an indictment if it permits the jury to convict
the defendant upon a factual basis that effectively modifies an essential element
of the crime charged.”38
       Specifically, Aldridge alleges that the district court impermissibly allowed


       34
         See Kyles v. Whitley, 514 U.S. 419, 433 (1995) (defining materiality in terms of a
“reasonable probability” of a different outcome).
       35
           See Tassin v. Cain, 517 F.3d 770, 777-78 (5th Cir. 2008) (measuring prosecutorial
misconduct according to “the extent to which the testimony misled the jury” (citing Napue v.
Illinois, 360 U.S. 264, 270 (1959))).
       36
            United States v. Bohuchot, 625 F.3d 892, 896-97 (5th Cir. 2010).
       37
            United States v. Dixon, 273 F.3d 636, 639 (5th Cir. 2001).
       38
            Id. (internal quotation marks omitted).

                                               14
    Case: 11-20516          Document: 00512498628          Page: 15   Date Filed: 01/13/2014


                                            No. 11-20516
evidence of her role as a broker and of her fiduciary duties to support an
alternative theory of honest services under § 1346 rather than the indicted
charges of conspiracy to commit mail and wire fraud under §§ 1341, 1343, and
1349. However, the district court specifically instructed the jury that any
violation of fiduciary duties or regulations was not to be considered a violation
of criminal law and charged the jury to consider such facts only “in determining
whether the defendants had the required intent to violate the criminal law as
charged in the indictment.”39 Accordingly, we find no error, plain or otherwise.
                                                   E
       We reject Tori Aldridge’s assertion that the district court abused its
discretion by denying her motion for new trial and request for an evidentiary
hearing.40 Because her motion was not based on newly discovered evidence,
Aldridge had to file her motion within 14 days after the jury reached its
verdict.41 However, she filed her motion on October 28, 2011—over nine months
after the jury reached a verdict. Because Aldridge does not argue that her
failure to act stemmed from excusable neglect,42 the district court did not abuse
its discretion in finding that her motion was untimely.43
                                               F
       We do not consider the merits of Tori’s ineffective assistance of counsel
claim. “Sixth Amendment claims of ineffective assistance of counsel should not

       39
          See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is presumed to follow its
instructions.”).
       40
          See, e.g., United States v. Munoz, 150 F.3d 401, 413 (5th Cir. 1998) (“We review the
denial of a motion for new trial for abuse of discretion.”).
       41
            FED. R. CRIM. P. 33(b).
       42
            FED. R. CRIM. P. 45(b)(1)(B).
       43
          See, e.g., Dotson v. Clark Equip. Co., 805 F.2d 1225, 1229 (5th Cir. 1986) (“[T]he
district court did not abuse its discretion in refusing to consider [the appellant’s] untimely
supplement to the original new trial motion . . . .”).

                                                   15
    Case: 11-20516          Document: 00512498628           Page: 16      Date Filed: 01/13/2014


                                          No. 11-20516
be litigated on direct appeal, unless they were previously presented to the trial
court.”44 It is only in “rare cases in which the record allows a reviewing court to
fairly evaluate the merits of the claim” that we will consider such a claim.45
Such is not the case here. Although Tori Aldridge’s current counsel argued
below that trial counsel was ineffective, he did not seek a hearing on that basis.
Accordingly, the record is undeveloped as to trial counsel’s “conduct and
motivations.”46 We therefore deny this claim without prejudice to collateral
review.47
                                                 G
       Tori Aldridge argues that cumulative error denied her a fair trial. She
cites to all the alleged errors discussed above to support this theory, as well as
to her arguments concerning the sufficiency of the evidence. “The cumulative
error doctrine provides for reversal when an aggregation of non-reversible errors,
i.e., plain and harmless errors that do not individually warrant reversal,
cumulatively deny a defendant’s constitutional right to a fair trial.”48 This
doctrine is only to be used in “rare instances,” and “[r]eversal is justified ‘only
when errors so fatally infect the trial that they violated the trial’s fundamental
fairness.’”49 As discussed above, none of Tori Aldridge’s allegations amount to
error. Accordingly, there is no justification for reversal under the cumulative

       44
            United States v. Aguilar, 503 F.3d 431, 436 (5th Cir. 2007) (per curiam).
       45
            Id. (internal quotation marks omitted).
       46
          See id. (denying ineffective assistance of counsel claim without prejudice because the
district court had not held a hearing and the record did “not provide sufficient detail about
trial counsel’s conduct and motivations to allow this court to make a fair evaluation of the
merits of [the appellant’s] claim”).
       47
            See id. (disposition of ineffective assistance of counsel claim).
       48
         United States v. Cervantes, 706 F.3d 603, 619 (5th Cir. 2013) (citing United States
v. Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012) (en banc)).
       49
            Id. (quoting Delgado, 672 F.3d at 344).

                                                 16
    Case: 11-20516            Document: 00512498628         Page: 17     Date Filed: 01/13/2014


                                           No. 11-20516
error doctrine.50


                                                 IV
         Vincent Aldridge raises two issues regarding his sentence. He first asserts
that 63 months of imprisonment, which was within the properly-calculated
Guidelines range of 63 to 78 months, was unreasonable. Because Aldridge failed
to object in the district court on this basis, we review for plain error.51 “A
discretionary sentence imposed within a properly calculated guidelines range is
presumptively reasonable.”52 “A defendant’s disagreement with the propriety of
the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence.”53                        Because
Aldridge’s claim that the nature and circumstances of his offense warrant a
lower sentence under 18 U.S.C. § 3553(a) asserts nothing more than
disagreement with his sentence, he fails to show plain error.54
         Aldridge argues that the district court abused its discretion in calculating
the amount of restitution owed pursuant to the Mandatory Victims Restitution
Act.55 A district court may generally “award restitution to victims of the offense,
but the restitution award can encompass only those losses that resulted directly



         50
          Id. (“Allegations of non-errors do not play a role in cumulative error analysis since
there is nothing to accumulate.”).
         51
              See, e.g., United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010) (per curiam).
         52
              Id. at 398; see also United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008).
         53
              Ruiz, 621 F.3d at 398.
         54
          See, e.g., United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008) (refusing to
disturb presumption of reasonableness that attached to a within-guidelines sentence when
district court considered but rejected arguments for a non-guidelines sentence).
         55
              See United States v. Arledge, 553 F.3d 881, 897 (5th Cir. 2008).

                                                 17
   Case: 11-20516          Document: 00512498628          Page: 18   Date Filed: 01/13/2014


                                           No. 11-20516
from the offense for which the defendant was convicted.”56 Aldridge specifically
challenges the inclusion of $140,000 payable to Mortgage Investment Lending
Associates for the transaction involving 5529 Cornish because “there is nothing
that indicates that the transaction involved any criminal participation [by
Vincent].” However, Aldridge does not contest that the transaction was illegal
or that he participated in the transaction as an FSW employee. In United States
v. Arledge,57 this court held in similar circumstances that when a transaction is
shown to be fraudulent and the defendant was involved as the attorney of record,
the district court does not abuse its discretion by awarding restitution based on
losses resulting from the fraud for which the defendant was convicted.58 We
therefore hold that the district court did not abuse its discretion in calculating
this restitution award.
                                       *        *         *
      For the foregoing reasons, we AFFIRM the Defendants’ convictions and
Vincent Aldridge’s sentence in all respects.




      56
           Id. at 898.
      57
           553 F.3d 881 (5th Cir. 2008).
      58
           Arledge, 553 F.3d at 898.

                                               18
