              Case: 14-10928     Date Filed: 08/04/2015   Page: 1 of 8


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 14-10928
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 9:11-cr-80072-KAM-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                       versus

ROSE MARKS,
a.k.a. Joyce Michael,


                                                             Defendant-Appellant.

                            ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (August 4, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

      Rose Marks appeals her convictions and total 121-month sentence for the

following counts related to a fortune-telling fraud scheme: one count of conspiracy
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to commit mail and wire fraud, 18 U.S.C. § 1349; one count of mail fraud, 18

U.S.C. § 1341; seven counts of wire fraud, 18 U.S.C. § 1343; one count of

conspiracy to commit money laundering, 18 U.S.C. § 1956(h); two counts of

money laundering, 18 U.S.C. § 1957; and two counts of filing a false tax return, 26

U.S.C. § 7206(1). On appeal, Marks argues that the district court erred by not

individually questioning all of the members of the venire panel during voir dire

after several panel members indicated that they could not be fair and impartial.

She also contends that the district court erred in concluding that the government

did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), Giglio v.

United States, 405 U.S. 150, 92 S.Ct. 763 (1972), or the Jencks Act, 18 U.S.C. §

3500. Finally, Marks asserts that the court erred by finding, for sentencing

purposes, that the loss amount in this case was $17.8 million.

                                          I.

      Generally, we review the district court’s method of conducting voir dire for

abuse of discretion. United States v. Hill, 643 F.3d 807, 836 (11th Cir. 2011).

However, if a party fails to preserve an objection for appeal, as in this case, we will

not reverse unless the party can show plain error. See United States v. Khoury, 901

F.2d 948, 966 (11th Cir. 1990). Under plain-error review, the defendant must first

demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error

affected substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th


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Cir. 2005). If those conditions are met, we may choose to exercise our discretion

to correct the forfeited error only if the error seriously affects the fairness,

integrity, or reputation of judicial proceedings. Id. For an error to be plain there

must be some controlling authority—such as a statute, Supreme Court decision, or

a decision of this Court—that squarely supports the defendant’s argument. United

States v. Pantle, 637 F.3d 1172, 1174-75 (11th Cir. 2011).

      The district court’s voir dire only needs to provide reasonable assurance to

the parties that any prejudice of the prospective jurors would be discovered. Hill,

643 F.3d at 836. Courts have ample discretion in determining how best to conduct

voir dire because the obligation to impanel an impartial jury lies in the first

instance with the trial judge and that judge must rely largely on his immediate

perceptions. Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629,

1634 (1981). To find that the court was constitutionally compelled to question the

venire on a particular subject, the failure to ask the questions “must [have]

render[ed] the defendant’s trial fundamentally unfair.” Mu’Min v. Virginia, 500

U.S. 415, 425-26, 111 S.Ct. 1899, 1905 (1991).

      The district court did not plainly err by not individually questioning each of

the members of the venire about their potential biases with respect to Marks’s

occupation as a fortune teller or the source of funds for her defense. Although

some of the jurors expressed that they did not believe they could fairly decide a


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case in which a fortune-teller was alleged to have engaged in fraud or speculated

about the source of Marks’s defense funds, these comments merely revealed the

prospective jurors’ own biases. Moreover, after the prospective jurors indicated

that they could not be impartial, the court asked the other members of the panel if

they could presume Marks to be innocent. No other prospective jurors responded

that they were biased by the comments, even after the court told them to inform the

court if they changed their mind regarding their ability to be impartial at any time

during the selection process. These comments, therefore, did not create a

likelihood of “potential actual prejudice” on the part of the remaining panel

members. See United States v. Chastain, 198 F.3d 1338, 1347-48 (11th Cir. 1999);

United States v. Daniels, 986 F.2d 451, 455 (11th Cir. 1993), readopted in relevant

part on reh’g, 5 F.3d 495, 496 (11th Cir. 1993). Marks’s argument that the court

was constitutionally compelled to individually question the other members of the

venire panel about the comments fails because her allegations about the effect of

the comments on the other members of the panel are speculative and do not show

that her trial was rendered fundamentally unfair. See Mu’Min, 500 U.S. at 425-26,

111 S.Ct. at 1905.

      Even assuming, arguendo, that Marks could show that the court erred in

conducting voir dire, she has not demonstrated that any such error was plain;

Marks cites no binding authority that squarely supports her argument. See Pantle,


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637 F.3d at 1174-75. Therefore, Marks’s claim must fail under plain error review.

See Rodriguez, 398 F.3d at 1298.

                                         II.

      Generally, we review for an abuse of discretion a district court’s decision not

to dismiss an indictment for alleged prosecutorial misconduct in failing to provide

Brady, Giglio, or Jencks Act material to the defendant. See United States v.

Jordan, 316 F.3d 1215, 1248-49 (11th Cir. 2003).

      The prosecution commits a Brady violation where the prosecution

suppresses material evidence favorable to the defendant, irrespective of the good

faith or bad faith of the prosecution. 373 U.S. at 87, 83 S.Ct. at 1196-97. To

establish a Brady violation, the defendant must show that the prosecution

possessed favorable evidence not given to the defendant, and that, had the evidence

been disclosed to the defense, a reasonable likelihood exists that the outcome of

the proceedings would have been different. United States v. Hansen, 262 F.3d

1217, 1234 (11th Cir. 2001).

      A Giglio violation occurs “where the prosecutor knowingly used perjured

testimony, or failed to correct what he subsequently learned was false testimony,”

and requires a less stringent showing of a reasonable likelihood the falsehood

could have affected the judgment of the jury. United States v. Alzate, 47 F.3d

1103, 1109-10 (11th Cir. 1995).


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      The Jencks Act requires that the government provide reports or summaries

of prior interviews with testifying witnesses where those reports or summaries are

“substantially verbatim, contemporaneously recorded transcripts” or are “signed or

otherwise adopted by the witness.” Jordan, 316 F.3d at 1255; see 18 U.S.C. §

3500(b), (e). An agent’s raw notes or summaries of interviews are not Jencks Act

material unless they use “the nearly exact wording or phrasing the witness uttered

during the interview; if only some of the exact wording is used, [they are] not

Jencks material.” Jordan, 316 F.3d at 1255.

      Marks can point to no favorable evidence that the government possessed but

did not turn over to the defense, and therefore she cannot show a Brady violation.

See Hansen, 262 F.3d at 1234. Indeed, her entire argument on appeal rests on the

fact that the government did not possess any record of Detective Stack’s prior

interviews with witnesses. Likewise, her argument that the government committed

a Giglio violation fails because she to points to no specific testimony the

government presented that it knew to be false. See Alzate, 47 F.3d at 1109-10.

Finally, Marks cannot show that the government violated the Jencks Act because,

even if Detective Stack had taken notes of his interviews with witnesses, such

notes would not have constituted Jencks material unless they were “substantially

verbatim, contemporaneously recorded transcripts” of the interviews. Jordan, 316

F.3d at 1255. Marks points to no such material the government possessed but did


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not give to the defense.

                                        III.

      We review for clear error a district court’s determination of loss amount for

sentencing purposes. United States v. Medina, 485 F.3d 1291, 1303 (11th Cir.

2007). However, we will not review an error complained of on appeal where the

party invited or induced the district court into making the error. United States v.

Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

      Under U.S.S.G. § 2B1.1, a defendant’s base offense level is enhanced by 20

levels if the defendant’s actions caused a loss of more than $7 million, but less than

or equal to $20 million. See U.S.S.G. § 2B1.1(b)(1)(K), (L). If the loss caused by

the defendant is more than $2.5 million but less than or equal to $7 million, the

defendant’s offense level is increased by 18. See id. § 2B1.1(b)(1)(J), (K). The

district court need “only make a reasonable estimate of the loss” caused by the

defendant. Id. § 2B1.1 cmt. n.3(C).

      We review the substantive reasonableness of a sentence for an abuse of

discretion. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We will

not reverse a sentence as substantively unreasonable unless we are “left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the [18 U.S.C.] § 3553(a) factors.” Id. at 1191 (quotation

omitted). We ordinarily expect a sentence within the Guidelines range to be


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reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008).

       Here, Marks invited any error by the court in enhancing her offense level by

20 under § 2B1.1(b)(1)(K) because, at her sentencing hearing, she asked the court

to “find that the amount of loss was $17.8 million” and argued that she should

receive the 20-level enhancement. She thus invited any error and cannot now

claim on appeal that the district court should have found a loss amount under $7

million. See Brannan, 562 F.3d at 1306. Additionally, to the extent that Marks

argues that her sentence is substantively unreasonable, her argument lacks merit

because the district court properly considered § 3553(a) factors and imposed a

sentence within the Guidelines range. See Pugh, 515 F.3d at 1190; Hunt, 526 F.3d

at 746.

       Upon review of the record and consideration of the parties’ briefs, we

affirm. 1


       AFFIRMED.




       1
        To the extent Marks takes issue with testimony presented to the grand jury, we conclude
that Marks’s passing references to this matter are not sufficient to preserve the issue for review.
See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).


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