United States v. Arthur Ramirez Merino , 545 F. App'x 867 ( 2013 )

Case: 10-14722 Date Filed: 11/13/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14722
________________________
D. C. Docket No. 3:08-cr-00079-MCR-12
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR RAMIREZ MERINO,
Defendant-Appellant.
________________________
No. 10-14729
________________________
D. C. Docket No. 3:08-cr-00079-MCR-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE JOSEPH CASTERNOVIA,
a.k.a. Gino,
Defendant-Appellant.
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________________________
No. 10-15253
________________________
D. C. Docket No. 3:08-cr-00079-MCR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK STEVEN HIRMER,
Defendant-Appellant.
________________________
No. 10-15285
________________________
D. C. Docket No. 3:08-cr-00079-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAUDIA CONSTANCE HIRMER,
Defendant-Appellant.
2
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________________________
Appeals from the United States District Court
for the Northern District of Florida
_________________________
(November 13, 2013)
Before HULL and ANDERSON, Circuit Judges, and MOTZ,* District Judge.
PER CURIAM:
This case involves an appeal of their convictions and sentences in connection
with a tax and wire fraud conspiracy by four Appellants: Claudia Hirmer, Mark
Hirmer, Arthur Ramirez Merino, and Eugene Joseph Casternovia. After careful
consideration of the briefs and relevant parts of the record, and with the benefit of
oral argument, we conclude that the judgment of the district court should be
affirmed. We address the several arguments of the Appellants in turn.
Defendants Claudia Hirmer, Casternovia and Merino 1 challenge the
sufficiency of the evidence to convict each of them on Count One, the dual object
conspiracy to impede the government’s knowledge and collection of taxes and to
defraud PQI customers. We summarily reject the challenges by Claudia Hirmer
and Casternovia to sufficiency of the evidence to convict them on Count I. The
1
In his initial brief on appeal, Mark Hirmer purported to adopt these sufficiency challenges
by the other three Appellants. Because such challenges are necessarily individualized, such
adoption cannot preserve the issue for our review. Moreover, in any event, the record reveals
ample evidence to support the verdict with respect to Mark Hirmer.
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evidence is overwhelming with respect to each. We also reject Merino’s
sufficiency challenge. 2 There was sufficient evidence from which the jury could
conclude that he entered into an agreement with the principles of PQI whose
salesmen marketed his products. The jury could find that one of Merino’s products
(Corporation Sole) was intended to conceal assets and income from the IRS. Even
if no such product was actually sold, the jury could properly find he and his co-
conspirators conspired to market and sell same. And the jury could properly find
that he and his co-conspirators conspired to commit wire fraud by defrauding the
customers of his debt elimination program. 3
With respect to defendant Mark Hirmer’s argument that he received
ineffective assistance of counsel because of his trial attorney’s joint representation
2
We do not believe Merino fairly presented a multiple conspiracy argument in his initial
brief on appeal.
3
These three Defendants argue that the evidence is similar to that in United States v.
Adkinson, 158 F.3d 1147 (11th Cir. 1998). We disagree. The sparse evidence there consisted
only of evidence that each of four defendants who received proceeds from a fraudulent bank loan
failed to properly report same on their separate tax returns and that the related entity through
which the payments were funneled failed to report same to the IRS as taxable income. We held:
A conspiracy to conceal the source of illegally obtained money is not
automatically a Klein conspiracy, even if it collaterally impedes the IRS in
the collection of taxes. Unless concealment is explainable only in terms of a
motivation to impede the IRS, no tax conspiracy may be inferred from that
act alone.
158 F.3d at 1159 (citations omitted). By contrast, there is strong evidence here that each
of these defendants knowingly joined a conspiracy to promote and market tax evasion
schemes to third parties. In stark contrast to the evidence in Adkinson, there is strong
evidence here of a tax evasion conspiracy – i.e., to market to taxpayers products that
would help those taxpayers to evade their taxes.
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of him and his co-defendant wife, Claudia, we cannot conclude that the district
court abused its broad discretion. The district court gave fully adequate warnings
and advice pursuant to United States v. Garcia, 577 F.2d 272 (5th Cir. 1975), 4 and
found that Mark Hirmer made a knowing, voluntary, and intelligent waiver of his
right to conflict-free counsel. Mr. Hirmer made the waiver both orally and in
writing. In addition to the Garcia warnings and advice, the court even asked Mr.
Hirmer if he wanted a court-appointed lawyer to discuss the conflict issue with and
Mr. Hirmer declined. We cannot conclude that the district court abused its
discretion in accepting the waiver.
With respect to the argument by Claudia and Mark Hirmer that the district
court erred in permitting the jury to treat the gross receipts from the wire fraud as
the “proceeds” of unlawful activity which were the subject of their money
laundering convictions in Count Two, we conclude that this argument is foreclosed
by our decisions in United States v. Tobin, 676 F.3d 1264 (11th Cir. 2012), United
States v. Hill, 643 F.3d 807 (11th Cir. 2011), United States v. Jennings, 599 F.3d
1241 (11th Cir. 2010), and United States v. Demarest , 570 F.3d 1232 (11th Cir.
2009).
We reject summarily the sufficiency challenges by the Hirmers and
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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Casternovia to their money laundering conspiracy convictions. There was ample
evidence to support each conviction. Mark Hirmer also argues for the first time on
appeal that his money laundering indictment was deficient, and that there was
insufficient evidence thereof, because emails are not wire transmissions for
purposes of wire fraud. We review pursuant to the plain error analysis; and error, if
any, is not plain or obvious because no court has interpreted the law as Mark
Hirmer urges. Moreover, traditional wire transmissions of cash were both alleged
and amply proved.
We also reject the sufficiency challenge by both Hirmers to their tax evasion
convictions in Count Three. The evidence was overwhelming.
All four Appellants argue that the district court erred in admitting evidence of
prosecutions of persons connected to Global Prosperity. The evidence was
admitted not to show propensity or guilt by association but to prove that the
Defendants had knowledge that the similar products sold by the Global defendants
were fraudulent. The district court gave limiting instructions in language that was
approved by the Defendants. Each Defendant remained entirely free to argue to the
jury that he had not been aware of those arrests, prosecutions, and convictions. We
agree with the district court that, under the facts of this case, the evidence was
highly probative. The primary defense was that Defendants did not believe their
schemes violated legitimate laws; to the extent the jury found that the instant
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Defendants’ schemes were similar to those employed by the Global defendants, it
was highly probative for the jury to hear that federal courts had found that the
similar Global schemes were fraudulent and that the Defendants were aware of that.
We agree with the district court that the highly probative evidence outweighed the
prejudice. Admission of the evidence certainly was not plain error.
Only the Hirmers mount any challenge to their sentences. We cannot
conclude there was clear error in the district court’s loss calculation. The
Sentencing Guidelines provide for a measurement of loss in a fraudulent services
case as “the amount paid for the property, services or goods transferred.” U.S.S.G.
§ 2B1.1, comment. (n.3(F)(v)). Thus, the court properly considered the amounts
paid to PQI. Similarly, we cannot conclude that the district court erred in finding at
least 250 victims. At the very least, the purchasers of Merino’s debt elimination
product were all victims and the Government proved that there were at least 360 of
them. Thus, there is no error.
Finally, Claudia Hirmer’s challenge to her enhancement for obstruction of
justice is wholly without merit.
For the foregoing reasons, 5 the judgment of the district court is
AFFIRMED.
5
Other arguments not addressed in this opinion are rejected without need for further
discussion.
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