NOT RECOMMENDED FOR PUBLICATION File Name: 21a0441n.06
Case No. 20-5889
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED UNITED STATES OF AMERICA, ) Sep 23, 2021 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF RODNEY SCOTT PHELPS, ) KENTUCKY ) Defendant-Appellant. )
BEFORE: SUTTON, Chief Judge; BATCHELDER and LARSEN, Circuit Judges.
SUTTON, Chief Judge. A jury convicted Rodney Scott Phelps of wire fraud and wire-
fraud conspiracy after the government charged him with perpetrating a multi-million dollar, Ponzi-
like scheme that had several victims. The district court sentenced him to 108 months in prison.
We affirm his conviction and sentence.
I.
From 2012 to 2014, Phelps and Jason Castenir ran Maverick Asset Management, a private
equity firm. According to the evidence submitted at trial, the duo induced victims to invest with
Maverick by claiming that Phelps was an experienced investor, an heir to the Morton Salt family,
and a trustee for the family’s fortune through the “Phelps Family Trust.” Each statement was
untrue, as were many others. Case No. 20-5889, United States v. Phelps
The investment ideas took different forms. Oil concessions in Belize. Unsecured debt
instruments called debenture offerings. A casino in Tunica, Mississippi. Each one had a common
thread. Phelps and Castenir promised low-risk, high-return investments backed up by the
resources of Phelps’s vast trust. Several investors bought what they were selling. At times, the
promised returns looked like real returns based on misleading documents and statements sent by
the tandem to their investors. But the documents and statements were all invented. The alleged
investments had one other thing in common: They did not pan out. Instead of investing the funds
as promised, Phelps and Castenir moved the money around to backfill other investment accounts
and expenses, all while enriching themselves.
The Ponzi-like scheme eventually unraveled. Investors lost money. Federal officials
caught wind. Castenir pleaded guilty to counts of conspiracy to commit wire fraud, commodities
fraud, and transactional money laundering, and he agreed to cooperate. A federal grand jury
indicted Phelps on 12 wire fraud counts and one conspiracy to commit wire fraud count. 18 U.S.C.
§§ 1343, 1349.
Phelps went to trial and testified on his own behalf. The jury convicted him on all counts.
The district court sentenced Phelps to 108 months and required him to pay $2,437,875.30 in
restitution.
II.
Sufficiency of the evidence. To convict someone of wire fraud, the government must
establish that he willfully participated in a scheme with the intent to obtain money by false
pretenses and used interstate wire communications to further it. 18 U.S.C. § 1343; United States
v. Rogers, 769 F.3d 372, 377 (6th Cir. 2014). To convict someone of conspiring to commit wire
fraud, the government must establish a knowing agreement to further the fraud. 18 U.S.C. § 1349;
2 Case No. 20-5889, United States v. Phelps
Rogers, 769 F.3d at 377. At this stage in the case, we ask only whether, after construing all
evidence in favor of the jury verdict, “any rational trier of fact could have found the essential
elements” of these crimes “beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).
Ample evidence supports the convictions. Multiple victims testified that Phelps lied to
them about his wealth, his ties to the Morton Salt fortune, his investing experience, the ongoing
success of the investments, and the backstop of the family trust for the investments. Castenir
helped propagate those lies and added a few of his own. Those lies, in turn, encouraged the victims
to trust Phelps’s company with their money. Documentary evidence told the same story, including
emails from Phelps and Castenir to investors; dishonest marketing materials on Maverick’s
website; and extensive bank records demonstrating that Phelps used most of the newly invested
funds to pay earlier investors, to cover Maverick’s operating expenses, and to line the co-
conspirators’ pockets. Evidence that Phelps covertly instructed Castenir to avoid detection iced
the evidence in support of the convictions.
Phelps nonetheless insists that it was all Castenir’s fault—that Castenir was the mastermind
behind the scheme, that Phelps merely fell “asleep at the wheel,” and that Phelps did not actively
participate in the fraud. Appellant Br. at 38. But plenty of evidence implicates Phelps directly,
including lies he, not just Castenir, told several investors. Plus, Castenir corroborated the victims’
testimony and detailed Phelps’s knowing involvement in the conspiracy.
Phelps resists the relevance of this last feature of the trial, arguing that Castenir’s testimony
lacked credibility. But when assessing a sufficiency claim, we do not evaluate witness credibility
or “substitute our judgment for” the jury’s. United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.
3 Case No. 20-5889, United States v. Phelps
1994). To the contrary, we construe the evidence in favor of the jury’s verdict, not in favor of the
defendant’s view of what the jury should have done. Jackson, 443 U.S. at 319.
It makes no difference that Phelps intended, he says, to obtain real profits for his investors.
For one, there was plenty of evidence that would have allowed the jury to discredit that theory.
For another, even if the jury believed this testimony, the evidence still showed that he lied to
individuals to garner additional investments, which suffices to support a wire-fraud conviction
under § 1343. See United States v. Daniel, 329 F.3d 480, 488 (6th Cir. 2003).
Motion for new trial. After the trial ended, the government discovered that the FBI had
been investigating Castenir for a securities-fraud conspiracy unrelated to this case. It promptly
informed Phelps, who promptly sought a new trial based on this information. Fed. R. Crim. P. 33.
The district court rejected the request. Only if the district court’s decision amounted to an abuse
of discretion will we require a new trial. United States v. Kettles, 970 F.3d 637, 649 (6th Cir.
2020).
No abuse of discretion occurred. As the district court observed, the additional
impeachment evidence was largely “cumulative of evidence the jury already heard about Castenir
during trial.” R.196 at 5. Phelps’s counsel cross-examined Castenir extensively about his
propensity for fraudulent behavior: his involvement in making the fake website and his knowingly
criminal decision to help “rob[] Peter to pay Paul” in this case. R.175 at 230–31. On top of that,
the jury did not need to rely on Castenir’s testimony alone to convict, as there was plenty of other
evidence to support the convictions. See United States v. Barlow, 693 F.2d 954, 966 (6th Cir.
1982) (holding that new evidence must “likely produce an acquittal” to warrant a new trial). In
fact, there was a witness for each act of wire fraud: Dion Garnett for the oil concessions, Rebecca
Winemiller for the debenture program and casino.
4 Case No. 20-5889, United States v. Phelps
Prior acts evidence. Phelps adds that the district court wrongly permitted prior-acts
evidence under Evidence Rule 404(b). The rule prohibits admission of other bad acts when used
to prove only that a person acted “in accordance with the character” demonstrated by the past acts.
Fed. R. Evid. 404(b)(1). But the rule expressly permits other acts when used for “another purpose,”
such as “motive,” “intent,” or “identity.” Id. 404(b)(2).
The district court permissibly allowed this testimony. Some of the evidence, for example,
was directly relevant to the charged offense. Id. 401, 402. Start with the evidence that Phelps
rented a home under Maverick’s name and paid for it using a Maverick account. It showed
Phelps’s ties to Maverick and that he comingled Maverick funds for his own purposes. The same
goes for evidence that Phelps presented a falsified Maverick account statement to his landlord to
prove that Maverick could pay the rent.
The government used the other challenged testimony to show that Phelps used a signature
false story to perpetrate the fraud—that he was a rich heir to the Morton Salt family and that the
family trust would back up the investments. The government may use such “distinctive” evidence
to identify the defendant under Evidence Rule 404(b)(2). United States v. Ramer, 883 F.3d 659,
670 (6th Cir. 2018) (quotation omitted). It did not use this evidence to show criminal propensity;
it used it to show his distinctive way of committing the fraud. To make sure that was the case, the
district court issued limiting instructions to prevent the jury from considering the evidence for
impermissible purposes.
Phelps suggests that the evidence was unduly prejudicial and should have been discarded
under Evidence Rule 403. But the district court did not abuse its considerable discretion in making
these rulings. United States v. Bell, 516 F.3d 432, 445 (6th Cir. 2008). Any error would be
5 Case No. 20-5889, United States v. Phelps
harmless anyway given the extensive evidence that directly implicated Phelps. See United States
v. LaVictor, 848 F.3d 428, 448 (6th Cir. 2017).
Phelps mentions other testimony—concerning his other business ventures, his treatment of
business associates, his prior use of the relevant email account, his threats to Castenir as the scheme
was unraveling—on this score. But he never objected to the admission of this other evidence at
trial, meaning plain-error review applies. Fed. R. Crim. P. 52(b); United States v. Kelly, 204 F.3d
652, 655 (6th Cir. 2000). We look only for a “clear or obvious” error affecting the defendant’s
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
No plain error occurred. In truth, Phelps’s counsel elicited much of this testimony—
regarding some of his other business ventures and his threats to Castenir—on cross-examination.
And the rest of it was either relevant to this crime or fell within the safe harbor for evidence that
shows a distinct manner of committing the crime.
Writing testimony. Phelps next argues that the district court erred by allowing nonexperts
to connect Phelps to various documents based on his signature and writing style. Having failed to
raise the argument at trial, Phelps must establish plain error on appeal. Kelly, 204 F.3d at 655.
Two Rules of Evidence set the framework. Rule 701 generally permits lay opinion
testimony for nontechnical issues within the witness’s perception. Fed. R. Evid. 701. Rule 901
generally permits lay witnesses to identify someone else’s handwriting and other types of
evidence. Fed. R. Evid. 901(b)(2). Taken together, the two Rules create considerable latitude
when it comes to allowing nonexperts to testify about handwriting and the like. See United States
v. Harris, 786 F.3d 443, 446–47 (6th Cir. 2015).
The relevant witnesses had ample knowledge to offer this testimony. They linked Phelps
to various documents and emails based on their prior personal observations: McCracken, Holskey,
6 Case No. 20-5889, United States v. Phelps
and Hubbuch based on their examination of other authenticated documents signed by Phelps;
Hollis based on Phelps’s unique email greetings to her; and Castenir based on his familiarity with
Phelps’s writing style and email address. None of the witnesses feigned expertise in writing
identification. That suffices for plain error review. Harris, 786 F.3d at 446–47.
Phelps responds that two of the FBI agents—McCracken and Holskey—obtained
background knowledge only by reviewing documents during the investigation for this case.
Evidence Rule 901(b)(2), it is true, excludes lay handwriting testimony based on knowledge
“acquired for the current litigation.” Fed. R. Evid. 901(b)(2). But a preliminary investigation does
not count as “for the current litigation.” Familiarity gained by law enforcement officers during an
investigation offers a permissible basis for identifying writing. Harris, 786 F.3d at 447–48; United
States v. Iriele, 977 F.3d 1155, 1166 (11th Cir. 2020) (collecting cases). Phelps never argues that
these agents gained familiarity only after the investigation ended. No error, let alone a plain error,
occurred.
Substitution of counsel. Phelps protests that the district court did not permit him to
substitute new attorneys five days before trial or on the last day of trial. In reviewing this
discretion-filled decision, we look to the timeliness of the request, the court’s diligence in handling
the issue, the level of conflict between the attorney and client, and the public’s interest in the
efficient administration of justice. United States v. Steele, 919 F.3d 965, 973 (6th Cir. 2019).
The district court did not abuse its discretion in rejecting either request. As to the first
request, it came late, just five days before the initial day of trial. And the court rejected it only
after holding a 90-minute hearing on the issue. Addressing each of Phelps’s arguments, the court
determined that communications between Phelps and his attorney remained intact and that his able
counsel would be more than adequately prepared for trial despite at least some communication
7 Case No. 20-5889, United States v. Phelps
problems arising from Phelps’s own conduct. After two and a half years of preparation and six
continuances, the trial court could fairly conclude that the public administration of justice required
the trial to move forward.
As to the second request, each of these points applies with even greater force. It would be
extraordinary at many levels to change counsel on the last day of trial. The court did not abuse its
discretion in either respect.
Phelps resists this conclusion mainly on the ground that his communications with counsel
were worse than the court let on, noting several instances in which he and his attorney did not see
eye to eye on preparation strategy and tactical decisions. But differences like these do not
invariably create an irreconcilable conflict between attorney and client. In truth, they happen often.
United States v. Barrow, 287 F.3d 733, 738 (8th Cir. 2002) (noting that justifiable dissatisfaction
“does not include a defendant’s frustration with counsel who does not share defendant’s tactical
opinions but continues to provide zealous representation”). None of this, moreover, precludes the
defendant from bringing an ineffectiveness claim in a § 2255 motion.
Competency to stand trial. Phelps argues that the district court should have ordered a
competency hearing due to his various physical ailments. A federal statute requires a district court
to order one if reasonable cause suggests that a defendant lacks the competence to stand trial.
18 U.S.C. § 4241(a). Incompetence to be tried occurs when a criminal defendant lacks “sufficient
present ability to consult with his lawyer with a reasonable degree of rational understanding” or if
he does not have “a rational as well as factual understanding of the proceedings against him.”
Drope v. Missouri, 420 U.S. 162, 172 (1975) (quotations omitted). That is not an everyday
occurrence, as the “bar for incompetency is high.” United States v. Miller, 531 F.3d 340, 350 (6th
8 Case No. 20-5889, United States v. Phelps
Cir. 2008). And an abuse-of-discretion standard generally applies. United States v. Dubrule, 822
F.3d 866, 879 (6th Cir. 2016).
Phelps’s circumstances do not clear this bar. No evidence shows that Phelps lacked a
rational understanding of the proceedings, whether due to physical or mental conditions. The
evidence in reality points the other way. When Phelps mentioned his medications before trial, the
district court observed that he was “fully coherent” and “fully capable of participating in trial.”
R.253 at 51. That observation followed a lengthy discussion between the district court and Phelps,
which followed a detailed letter from Phelps. The pattern persisted at trial. The court conducted
a colloquy that ensured Phelps understood his rights before he testified. And during his testimony,
he comprehensibly responded to questions. Phelps, to be sure, complained of physical pain and
occasional forgetfulness. But that alone does not suffice. The statute refers to “mental
incompetency,” not physical incompetency and not occasional forgetfulness. The evidence simply
does not show that he was incompetent to stand trial.
Prosecutorial misconduct. Phelps seeks a new trial on the ground that the prosecutors
engaged in misconduct. To obtain relief, the prosecutors’ misbehavior must have “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974). No objection was made to the prosecutors’ behavior
during trial. That means plain-error review applies, requiring the conduct to be “exceptionally
flagrant.” United States v. Bradley, 917 F.3d 493, 506 (6th Cir. 2019) (quotation omitted).
No such conduct occurred. Take the prosecutor’s statement in closing about “credible”
witnesses testifying against Phelps. R.240 at 135. Prosecutors legitimately make statements like
this all the time so long as they don’t “manipulate or misstate the evidence” in the process, Darden
v. Wainwright, 477 U.S. 168, 182 (1986), or “convey the impression that evidence not presented
9 Case No. 20-5889, United States v. Phelps
to the jury, but known to the prosecutor,” corroborated the witness’s testimony, United States v.
Young, 470 U.S. 1, 18 (1985). The prosecutor’s statement steered clear from that impermissible
line.
So too for other statements. The government stated in closing that it “probably” could have
brought “a thousand counts.” R.240 at 100–01. But this statement was merely explaining how
each separate wiring qualifies under 18 U.S.C. § 1343 even though the government just charged
Phelps for “a representative sample of the wirings.” R.240 at 100. Phelps also highlights some
snippy exchanges between him and the prosecutor. But these statements likewise did not infect
the trial with pervasive unfairness, especially when viewed in the “context of the entire trial.”
Young, 470 U.S. at 11. No reversible error occurred.
Jury charge. Phelps challenges the district court’s use of a “nonunanimity” instruction for
the conspiracy charge. The district court’s instruction, taken from Sixth Circuit Pattern Jury
Instruction 8.03B, permitted the jurors to convict Phelps so long as they all felt that he agreed to
commit a fraudulent scheme, even if they disagreed about which ones (oil concessions, debentures,
or the casino) he agreed to commit. Abuse-of-discretion review applies. United States v.
Hendrickson, 822 F.3d 812, 822 (6th Cir. 2016).
Recall that the statute he was charged with violating, 18 U.S.C. § 1349, just requires a
knowing agreement between two (or more) people to commit wire fraud. Rogers, 769 F.3d at 377.
We generally permit courts to give this nonunanimity instruction when, as here, “several possible
sets of underlying brute facts make up a particular element.” Richardson v. United States, 526
U.S. 813, 817 (1999). “The means used to carry out a fraudulent scheme are not separate elements
requiring unanimity.” United States v. Boliaux, 915 F.3d 493, 495 (7th Cir. 2019).
10 Case No. 20-5889, United States v. Phelps
Phelps responds that sometimes a “specific unanimity” instruction—one that requires
agreement on how the offense occurred—offers the better path. Cases that warrant such
instructions generally involve situations where the evidence is exceptionally complex or the
alternative means are only marginally related. See Hendrickson, 822 F.3d at 823. That was not
true here, as the district court legitimately found. The different schemes all involved the same two
people and the same fraudulent backstory. The district court acted within its discretion to instruct
the jury the way it did.
Ineffective assistance of counsel. Phelps complains that his counsel’s performance during
trial was ineffective. But “we generally do not review such claims on direct appeal, preferring that
the defendant raise such claims (if at all) in a § 2255 petition.” United States v. Quinlan, 473 F.3d
273, 280 (6th Cir. 2007). We see no reason to make an exception here.
III.
Phelps challenges his sentence on several grounds. Each receives clear-error review, at
least for the underlying factual findings. United States v. Ward, 506 F.3d 468, 474 (6th Cir. 2007).
Obstruction-of-justice enhancement. Phelps contests the district court’s two-level sentence
enhancement for willfully obstructing justice during his trial testimony. See U.S.S.G. § 3C1.1.
A court may impose this enhancement if it identifies material, perjured testimony. See United
States v. Roberts, 919 F.3d 980, 990–91 (6th Cir. 2019).
The court imposed the enhancement after finding that Phelps lied on the stand when, for
example, he denied telling victims that he was the heir to the Morton Salt dynasty and that his
family trust had hundreds of millions of dollars to back up their investments. Ample evidence
showed that Phelps lied.
11 Case No. 20-5889, United States v. Phelps
In a variation on his sufficiency-of-the-evidence arguments, Phelps insists that he testified
truthfully. Castenir, as Phelps sees it, was the only liar. But many witnesses besides Castenir
contradicted material parts of Phelps’s story. And we see no fair-minded reason to diverge from
the district court’s and jury’s legitimate rejection of Phelps’s story.
Phelps also worries that applying this enhancement will chill future defendants’ willingness
to testify. But the same could be said of our prior cases applying the enhancement. United States
v. Castro, 960 F.3d 857, 870–71 (6th Cir. 2020). Plus, the opposite rule—that the enhancement
could never be used for criminal defendants who lie on the stand—has problems of its own. In the
end, the district court showed that it appreciated both sides of the issue, acknowledged that it did
not want “to chill a defendant’s right to testify,” R.256 at 16, and permissibly thought Phelps
earned the enhancement anyway.
Sophisticated-means enhancement. The district court applied a two-level sophisticated-
means enhancement because Phelps’s scheme involved “especially complex or especially intricate
offense conduct pertaining to the execution or concealment of an offense.” U.S.S.G. § 2B1.1 cmt.
n.9(B); see United States v. Igboba, 964 F.3d 501, 511 (6th Cir. 2020).
We see no clear error. As the district court observed, Phelps was complicit in “various
sophisticated means to attract investors, to lull them into thinking that their investments were
making money” over the course of a few years. R.256 at 38. The means in this instance included
multi-step falsehoods to investors, fraudulent bank documents, fictitious website information,
funneled money between investors, and more. Other courts have upheld this enhancement for
similar conduct in Ponzi-like schemes. See, e.g., United States v. Meadows, 866 F.3d 913, 918
(8th Cir. 2017) (frequent lies to defrauded investors); United States v. Regensberg, 381 F. App’x
60, 62 (2d Cir. 2010) (fraudulent loan documents, fake earnings reports, lies to investors, and
12 Case No. 20-5889, United States v. Phelps
altered account statements); United States v. Segal, 687 F. App’x 192, 195 (3d Cir. 2017) (falsified
documents). And our court has upheld this enhancement for less intricate fraud schemes involving,
for example, false documents, United States v. Masters, 216 F. App’x 524, 526 (6th Cir. 2007),
and funneled funds, United States v. Simmerman, 850 F.3d 829, 833 (6th Cir. 2017). We reach
the same conclusion here.
Abuse-of-trust enhancement. The abuse-of-trust enhancement applies if a defendant
“abused a position of public or private trust” to facilitate “the commission or concealment of the
offense.” U.S.S.G. § 3B1.3. It covers circumstances in which a “defendant provides sufficient
indicia to the victim that the defendant legitimately holds a position of private or public trust when,
in fact, the defendant does not,” and it includes a defendant who “perpetrates a financial fraud by
leading an investor to believe the defendant is a legitimate investment broker.” U.S.S.G. § 3B1.3
cmt. n.3.
The district court did not clearly err in finding that Phelps falsely elevated himself to a
position of trust. Consistent with the commentary, “[a]n investment manager normally occupies a
position of trust.” United States v. Dobish, 102 F.3d 760, 762 (6th Cir. 1996) (per curiam). Phelps
not only “led these folks to believe he was a sophisticated investment advisor,” as the district court
permissibly found, R.256 at 44; but he also emphasized how the investors could trust him and how
safe their money would be with him. As the district court aptly put it, Phelps “created the facade
of legitimacy, along with representations to these victims that, essentially, their money would not
be at risk, or very little risk,” all the while “lull[ing] these investors into investing with him, into
making them believe that their investments were safe.” Id. at 43–44.
Phelps does not meaningfully contest these fact-findings or the commentary’s application.
He instead pushes back with a policy argument, noting that, if the enhancement applies here, it
13 Case No. 20-5889, United States v. Phelps
will apply to every fraud case. Not so. Not all fraudulent schemes include concerted efforts to
bolster the fraudster’s bona fides based on deceit or otherwise put the fraudster in a unique position
of trust with the defrauded party. The district court permissibly applied the enhancement.
Substantively unreasonable sentence. Even in the absence of any procedural errors, Phelps
claims that his sentence was too high. His guidelines range was 108 to 135 months, and the district
court sentenced him at the bottom of the range: 108 months. This within-guidelines sentence
receives a presumption of reasonableness. United States v. Vonner, 516 F.3d 382, 389 (6th Cir.
2008) (en banc). Phelps does not remotely overcome this presumption. The district court
considered each of his key objections—his age, lack of criminal history, medical ailments, and
other personal characteristics—and acted well within its discretion in deciding that they did not
require a below-guidelines sentence.
We affirm.