United States v. Marascio: Applying the Roland Factors to a Prosecutor’s Single Closing-Argument Reference to Co‑Conspirators’ Guilty Pleas

1. Introduction

In United States v. Marascio (5th Cir. July 17, 2026) (per curiam) (unpublished), the Fifth Circuit affirmed Eric Reed Marascio’s convictions for conspiracy to commit wire fraud and conspiracy to commit money laundering arising out of a scheme to defraud the Paycheck Protection Program (PPP). The scheme involved submitting PPP loan applications with inflated payroll and fabricated business expenses, receiving funds, and diverting proceeds for personal use and investment.

The appeal presented two principal issues: (1) whether the evidence was sufficient to show Marascio’s knowledge and specific intent to defraud; and (2) whether the prosecutor’s closing-argument rhetorical question—“Why did they plead guilty, each of them?”—was improper and warranted relief.

2. Summary of the Opinion

The Fifth Circuit held that the evidence—though largely circumstantial—was sufficient for a reasonable jury to find Marascio knowingly joined and furthered a fraud scheme. The court emphasized Marascio’s use of the pay-to-play model, the false payroll representations tied to his Hazelnut Café, his diversion of funds away from payroll, his payment of a 10% fee, and his recruitment of another participant for compensation.

On the prosecutorial-comment claim, the court concluded that the challenged reference to co-conspirators’ guilty pleas was not improper when evaluated under the governing four-factor framework and, in any event, did not substantially impair Marascio’s rights given the limiting instruction and the strength of the evidence.

3. Analysis

A. Precedents Cited

  • United States v. Perry, 35 F.4th 293, 316 (5th Cir. 2022): Cited for the proposition that sufficiency review is de novo but affords “substantial deference to the jury verdict.” This framing supported the court’s unwillingness to reweigh credibility or second-guess reasonable inferences drawn from circumstantial evidence.
  • United States v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007): Used to reinforce that the Government may prove intent through “circumstantial rather than direct” evidence and that jurors may choose among reasonable constructions. This undercut Marascio’s complaint that no direct admission proved he knew the conduct was illegal.
  • Cargill v. Garland, 57 F.4th 447, 466 (5th Cir. 2023) (en banc), aff’d, 602 U.S. 406 (2024): Cited for the non-waivability of the applicable standard of review. The court used it to justify independently examining preservation and the proper standard rather than accepting the parties’ agreement.
  • United States v. Hager, 879 F.3d 550, 556 (5th Cir. 2018) (per curiam): Quoted for the default rule that, absent an objection and ruling, claims are unpreserved and reviewed for plain error. The case supplied the court’s baseline preservation analysis.
  • United States v. Thames, 214 F.3d 608, 613 (5th Cir. 2000): Invoked for the practice of declining to resolve the precise standard of review when the result is the same under either abuse-of-discretion or plain-error review.
  • United States v. Roland, 130 F.4th 480, 486 (5th Cir.), cert. denied, 146 S. Ct. 261 (2025): The central authority for assessing the propriety of admitting/using a co-conspirator witness’s conviction. The court applied Roland’s four factors to the prosecutor’s statement and found the balance favored the Government.
  • United States v. Moparty, 11 F.4th 280, 292–93 (5th Cir. 2021): Cited for two points: (1) the “almost invariable assumption” that juries follow limiting instructions; and (2) that the Government may introduce a co-conspirator guilty plea to “thwart” a defense strategy portraying the co-conspirator as the primary culprit. This case substantially supported the court’s view that the prosecutor’s reference served a rebuttal function.
  • United States v. Delgado, 401 F.3d 290, 300 (5th Cir. 2005): Mentioned as an example of the defense inviting mention of pleas by impeaching co-conspirator witnesses through their criminal conduct. It informed the court’s discussion of Roland factor four (“invited” introduction).
  • United States v. Leach, 918 F.2d 464, 467 (5th Cir. 1990): Quoted for the “turnabout is fair play” concept—defendants cannot complain about plea references if they instigate admission or repeatedly reference pleas. The court used it to explain why “invitation” is typically found only when the defense affirmatively opens the door.
  • United States v. Alaniz, 726 F.3d 586, 615 (5th Cir. 2013): Provided the harmlessness/substantial-rights framework for improper prosecutorial statements: magnitude of prejudice, effect of cautionary instructions, and strength of the evidence of guilt. This structured the court’s alternative holding that any error did not warrant relief.

B. Legal Reasoning

1. Sufficiency of the Evidence: Knowledge and Specific Intent

The court treated Marascio’s argument as conceding the existence of a fraudulent agreement but disputing his mental state—whether he knowingly joined it and acted with an intent to defraud. Relying on United States v. Perry and United States v. Mitchell, the panel emphasized two themes: (a) appellate deference to jury verdicts on sufficiency; and (b) the acceptability of proving intent via circumstantial evidence and reasonable inferences.

The opinion then assembled a factual mosaic from which intent could be inferred: Marascio provided personal and business information used in an application that falsely claimed nine employees and a monthly payroll exceeding $90,298; he received a $225,745 loan; he paid Moran a 10% fee; he spent none of the funds on payroll; he invested $150,000 with “Jonathon Spencer” for personal gain; he used $30,000 for a pickup truck; and he later arranged to recruit additional applicants for compensation, successfully recruiting Hector Reyes and receiving $5,000.

The court also referenced co-conspirator Hill’s testimony that participants understood the plan was to obtain PPP money, invest it for personal gain, and later repay the loans—“no harm, no foul.” That testimony, combined with Marascio’s conduct, supported an inference that he understood the scheme’s wrongful nature even absent a direct confession.

2. Prosecutorial Comment: Co-Conspirators’ Guilty Pleas in Closing

The second issue involved the prosecutor’s rhetorical question in closing argument—“Why did they plead guilty, each of them?”—posed to rebut the co-defendant’s theory that Moran alone knew the scheme was unlawful. The court began with preservation: although a bench conference occurred, neither defendant formally objected or obtained a ruling. Under United States v. Hager, this would typically mean plain-error review. Invoking Cargill v. Garland, the court refused to accept the parties’ agreed standard without independent confirmation. Ultimately, under United States v. Thames, it declined to decide between abuse-of-discretion and plain-error because Marascio could not prevail under either.

On the merits, the court evaluated propriety using United States v. Roland’s four-factor test:

  1. Limiting instruction: The district court instructed that an accomplice’s guilty plea is “not evidence of the guilt of any other person.” The panel relied on United States v. Moparty’s presumption that juries follow such instructions.
  2. Proper evidentiary purpose: The comment rebutted a defense narrative of universal ignorance by highlighting the incongruity of co-conspirators pleading guilty to a knowing offense if they truly lacked awareness. The court drew support from United States v. Moparty (allowing reference to thwart a defense strategy portraying another as the primary culprit).
  3. Improper emphasis/substantive use: The guilty pleas were mentioned only once; the case otherwise turned on witness testimony about Marascio’s acts and knowledge, not on the pleas as substantive proof.
  4. Invitation by the defense: This factor was “a closer call.” The defense did not expressly introduce the guilty pleas (contrast the “instigation” concept in United States v. Leach, and the impeachment dynamic discussed in United States v. Delgado). The panel treated the factor as ambiguous rather than favoring the Government.

With three factors favoring the Government and the fourth uncertain, the court concluded the district court did not improperly allow reliance on co-conspirators’ guilty pleas.

As an alternative basis for affirmance, the court applied United States v. Alaniz’s “substantially impaired” analysis. It found minimal prejudice from a single rhetorical question, credited the limiting instruction (which even Marascio conceded weighed against relief), and emphasized the strength of the evidence supporting the convictions.

C. Impact

Although unpublished and “not designated for publication,” the decision is practically significant in two ways.

  • PPP fraud prosecutions and circumstantial intent: The opinion reinforces that intent in fraud conspiracies can be inferred from how funds are obtained and used—especially when a defendant receives loan proceeds premised on false payroll claims, fails to use funds for the program’s intended purpose, pays a facilitator’s fee, and recruits additional participants for payment. In future PPP-related cases, similar fact patterns can support intent even without direct admissions.
  • Closing arguments and co-conspirator pleas: The opinion illustrates that a limited reference to guilty pleas—especially when tied to rebutting a defense theory and paired with a limiting instruction—may pass muster under the Roland framework. It also signals that litigants should not assume preservation: without a formal objection and ruling, appellate courts may treat such claims as forfeited and apply plain-error review.

4. Complex Concepts Simplified

  • “Sufficiency of the evidence” review: The appellate court asks whether a reasonable jury could find guilt beyond a reasonable doubt based on the evidence and reasonable inferences—not whether the appellate judges would have voted to convict.
  • “Specific intent to defraud”: A mental state requiring that the defendant knowingly participated in a scheme designed to deceive and to obtain money or property by means of deception. Direct proof is rare; conduct often supplies the inference.
  • “Circumstantial evidence”: Evidence that implies a fact rather than proving it directly (e.g., diverting PPP funds to personal investments and purchases can imply knowledge of wrongdoing).
  • “Preservation,” “objection,” and “plain error”: To preserve an issue, counsel typically must timely object and obtain a ruling. If not preserved, appellate courts generally review only for plain error—an especially demanding standard requiring a clear mistake that affected substantial rights and seriously affects the proceedings’ fairness.
  • Limiting instruction: A directive telling jurors how they may (and may not) use certain evidence—for example, that a co-conspirator’s guilty plea cannot be used as proof that the defendant is guilty.

5. Conclusion

United States v. Marascio affirms that juries may infer knowledge and intent in fraud conspiracies from a defendant’s participation, financial behavior, and recruitment activity, even absent direct admissions. It also underscores the Fifth Circuit’s structured approach—via United States v. Roland—to evaluating references to co-conspirators’ guilty pleas, permitting limited use for rebuttal purposes when accompanied by appropriate limiting instructions and not emphasized as substantive proof. In combination, the opinion strengthens the practical prosecutorial toolkit in PPP-fraud cases while cautioning defense counsel that preservation failures can significantly narrow appellate review.