Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Smith, Circuit Judge
Submitted: September 25, 2009
Before BYE, ARNOLD, and SMITH, Circuit Judges.
Jason Branch, Sr. was convicted of one count of mail fraud, in violation of 18 U.S.C. § 1341; three counts of wire fraud, in violation of 18 U.S.C. § 1343; and four counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(1). On appeal, Branch argues that the district court*fn1 erred in (1) denying his motion for a mistrial after a prosecution witness shouted at Branch from the witness stand; (2) not ordering a mistrial sua sponte during closing arguments when the prosecution made unduly prejudicial remarks; and (3) applying sentencing enhancements under U.S.S.G. § 2B1.1(b)(1)(I), for a loss amount in excess of $1 million; § 2B1.1(b)(2)(C), for over 250 victims; and § 3B1.1(a), for being an organizer or leader of a criminal activity that was otherwise extensive. Finally, Branch argues that his sentence is substantively unreasonable. We affirm.
In 2006, Branch was indicted for conspiracy, mail fraud, wire fraud, conspiracy to commit money laundering, and money laundering. To summarize, Branch, using a religious-based appeal, defrauded people seeking lines of credit. The scheme's victims paid Branch an up-front fee, but Branch never furnished the loan the fee was supposed to guarantee.
The mistrial issue arises from an unsolicited comment that a prosecution witness made during the prosecution case-in-chief. Gayle Prescod O'Deen testified that she contacted a man named Josh Edwards to obtain financing for her business. O'Deen testified that she provided Edwards with $25,000 to obtain a loan for her business. While O'Deen was testifying about transferring the money to Edwards, she interjected, unsolicited, "How dare you, Mr. Edwards, how dare you." The district court asked the jury to leave the courtroom, and O'Deen began apologizing to the court for her emotional outburst.
After the jury left the courtroom, the district court told O'Deen, "I can't let you have that kind of an emotional response to anything here." Branch immediately moved for a mistrial, noting that no question was pending at the time of O'Deen's outburst. The district court responded, "I don't think there was [a question pending] either, and she did not refer to the defendant by his correct name either, although she did look at him and was addressing the defendant." O'Deen was never asked to identify "Mr. Edwards." The district court denied Branch's request for a mistrial but gave the following instruction to the jury:
Ladies and gentlemen, I am instructing you all that you are to disregard Miss [O'Deen's] personal address to who she referred to as Mr. Edwards and her comments just before I excused you. I think you all understand that a person's guilt or innocence ultimately is for you all to decide based on the instructions I gave you and you are to disregard her remarks just before I excused you all.
The trial resumed. During the government's closing argument, the prosecutor repeatedly called Branch a "fraudster." The prosecutor also told the jurors: "Everything [Branch] does is a fraud. Everything he does is wrong. Everything he tried to tell you on that stand is incorrect." During the rebuttal phase of closing arguments, the prosecutor stated: "Jason Branch is a fraud. His whole life is a fraud."
The jury found Branch guilty on eight of the nine tried counts. During sentencing, the district court adopted the presentence investigation report's (PSR) finding of a loss amount between $1,000,000 and $2,500,000, which levied a 16-level enhancement under U.S.S.G. § 2B1.1(b)(1)(I). Branch received a two-level enhancement under § 2B1.1(b)(2)(C) based on the existence of more than 250 fraud victims. Branch also received a four-level leadership enhancement under § 3B1.1. The district court sentenced Branch to 264 months' imprisonment.
On appeal, Branch argues that the district court erred in (1) denying his motion for a mistrial after O'Deen shouted at Branch from the witness stand; (2) not calling for a mistrial sua sponte during closing arguments; and (3) applying three sentencing enhancements, resulting in an unreasonable sentence.
Branch first argues that the district court should have granted his request for a mistrial after a prosecution witness made an emotionally-charged outburst from the witness stand directed at Branch. Branch contends that although the district court instructed the jury to ignore the incident, the witness's outburst was highly prejudicial and tainted the trial to the extent that the court should have declared a mistrial. The government responds that the district court did not abuse its discretion because the remark was not made in response to a question, was fleeting, and was very limited in scope. In addition, the government points out that the district court issued an immediate, forceful limiting instruction following the remark.
We review the denial of a motion for mistrial for an abuse of discretion. United States v. Peoples, 250 F.3d 630, 635 (8th Cir. 2001). A district court's determination of whether a mistrial should be declared as a result of a witness's improper comment is reviewed for abuse of discretion. United States v. Sherman, 440 F.3d 982, 987 (8th Cir. 2006).
The outburst in question occurred during O'Deen's testimony. The prosecution asked O'Deen about her transfer of $25,000 to a man that she knew as Josh Edwards. The following colloquy occurred:
QUESTION: And if you would take a look at the screen you will see an exhibit there. That's 30-A, can you identify that, ma'am?
O'DEEN: That's the email from Josh giving us the bank and the account and routing number that the ...