United States v. Linda S. Deavers , 617 F. App'x 935 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14586
Non-Argument Calendar
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D.C. Docket No. 6:12-cr-00232-ACC-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINDA S. DEAVERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 9, 2015)
Before HULL, MARCUS and ROSENBAUM, Circuit Judges.
PER CURIAM:
A jury convicted Linda Deavers of ten counts of wire fraud, in violation of
18 U.S.C. § 1343, and five counts of money laundering, in violation of 18 U.S.C. §
1957. Deavers now appeals the denial of her motion for judgment of acquittal on
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four of the wire-fraud counts -- Counts 1-4 -- that charged Deavers with causing
broker Kyle Wilson to transmit to his clients emails containing misrepresentations
about the status of his clients’ investments with her. On appeal, Deavers argues
that: (1) the testimony of Wilson and his business associate, Robert Carr,
established that she did not transmit the emails at issue, she did not ask for them to
be transmitted, she did not know about them, and she would not have approved of
them because of her confidentiality agreement with Wilson and Carr; and (2)
Wilson’s emails were not an essential part of her scheme, and, she cannot be held
liable for his conduct. After thorough review, we affirm.
We review the denial of a defendant’s motion for judgment of acquittal de
novo. United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir. 1994). The Due
Process Clause protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime of which she is
charged. In re Winship, 397 U.S. 358, 364 (1970). However, to uphold the denial
of a motion for judgment of acquittal, we need only determine that a reasonable
jury could conclude that the evidence established guilt beyond a reasonable doubt.
United States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001). The jury is free to
choose among reasonable constructions of the evidence. United States v. Vera,
701 F.2d 1349, 1357 (11th Cir. 1983). Accordingly, we accept all reasonable
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inferences that tend to support the government’s case. See United States v.
Williams, 390 F.3d 1319, 1324 (11th Cir. 2004).
The federal wire-fraud statute provides:
Whoever, having devised or intending to devise any scheme or artifice to
defraud, or for obtaining money or property by means of false or fraudulent
pretenses, representations, or promises, transmits or causes to be transmitted
by means of wire, radio, or television communication in interstate or foreign
commerce, any writings, signs, signals, pictures, or sounds for the purpose
of executing such scheme or artifice, shall be fined under this title or
imprisoned not more than 20 years, or both.
18 U.S.C. § 1343. Thus, the elements of wire fraud under § 1343 are “(1)
intentional participation in a scheme to defraud and (2) use of the interstate wires
in furtherance of the scheme.” United States v. Hasson, 333 F.3d 1264, 1270 (11th
Cir. 2003). As for the second element, we’ve said: “To ‘cause’ the interstate wires
to be used, the use of the wires need not be actually intended; it need only be
reasonably foreseeable.” Id. We’ve also noted that: “Where one does an act with
knowledge that the use of the interstate wires will follow in the ordinary course of
business . . . then he ‘causes’ the interstate wires to be used.” United States v.
Ross, 131 F.3d 970, 985 (11th Cir. 1997) (quoting Pereira v. United States, 347
U.S. 1, 8-9 (1954)) (quotation and alterations omitted).
Our precedent instructs that a defendant may be held liable for a
communication transmitted by a victim of her fraud, if the communication
furthered the defendant’s fraudulent scheme. See United States v. Toney, 598 F.2d
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1349, 1353 (5th Cir. 1979).1 Moreover, communications designed to conceal a
fraud by lulling a victim into inaction may constitute communications made in
furtherance of the scheme. See United States v. Georgalis, 631 F.2d 1199, 1204
(5th Cir. 1980).
The government’s evidence in this case showed that: (1) Wilson entrusted
several million dollars of his clients’ money to Deavers for investment in purported
European private placement programs; (2) Wilson traveled to Europe with Deavers
to facilitate his clients’ investments in these programs; (3) Carr later took Wilson’s
place and remained in Europe with Deavers for several months; (4) Wilson sent
regular email updates to his investors about the status of the private-placement-
program investments, which he based on information he and Carr learned in their
conversations with Deavers; (5) Deavers knew Wilson was under pressure from his
clients to see returns on their investments; (6) Deavers knew Wilson was in regular
contact with his investors; and (7) Deavers never invested the funds in private-
placement programs, but used a significant portion of them for her personal
benefit. Further, the evidence indicated that the information in Wilson’s emails,
which reported imminent contracts with partners in private-placement programs,
with returns to follow shortly, was, at a minimum, misleading, if not outright false.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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From this evidence, the jury reasonably could have found that, even if
Deavers did not instruct Wilson to relay the misinformation she provided about the
investments to his clients, she reasonably could have foreseen that he would do so.
Deavers’s claim that the emails were in violation of the confidentiality agreement
she had with Wilson and Carr is contradicted by both Wilson’s and Carr’s
testimony that the emails were general enough that they did not breach the
confidentiality agreement. In addition, while Wilson testified that Deavers may
not have known that he communicated with his clients by email, the jury
reasonably could have found that, at the relevant time period -- October 2007
through January 2008 -- Wilson’s use of email to communicate with his clients was
reasonably foreseeable to Deavers.
As for Deavers’s argument that the wire-fraud statute requires the specific
intent to use the interstate wires, it is contrary to our precedent. See Hasson, 333
F.3d at 1270; Ross, 131 F.3d at 985; United States v. Vega-Castillo, 540 F.3d
1235, 1236 (11th Cir. 2008) (noting that we are bound to apply our prior precedent
unless and until it is overruled by the Supreme Court or this Court sitting en banc).
Deavers’s claim that Wilson’s emails were not sent in furtherance of her fraudulent
scheme is also unavailing. The jury reasonably could have concluded that
Deavers’s misrepresentations to Wilson and Carr, which were reflected in the
charged emails, were designed to conceal her fraudulent conduct and to prevent
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Wilson’s clients from demanding the return of their funds. See Georgalis, 631
F.2d at 1204. Because Deavers caused Wilson’s emails, and they furthered her
fraudulent scheme, it matters not that Wilson was a victim of the fraud, and not a
coconspirator. See Toney, 598 F.2d at 1353. 2
AFFIRMED.
2
In her brief, Deavers argues in passing, and for the first time on appeal, that the interstate-use-
of-the-wires element was not satisfied because she was unaware that Wilson had out-of-state
investors, or that his email updates would involve interstate commerce. Deavers has failed to
properly raise this claim as an issue on appeal, however, since she has not offered any argument
or cited any legal authorities in support of it. See Hamilton v. Southland Christian School, Inc.,
680 F.3d 1316, 1319 (11th Cir. 2012) (noting that a passing reference to an issue, without further
argument and citation to authorities, constitutes a waiver of the issue). In any event, we are
unpersuaded by her argument.
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