United States v. Stephen Mayer , 679 F. App'x 895 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12035
Non-Argument Calendar
________________________
D.C. Docket No. 8:14-cr-00190-SCB-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN MAYER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 14, 2017)
Before WILLIAM PRYOR, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Stephen Mayer appeals his convictions and sentence after a jury convicted
him of one count of conspiracy to commit wire fraud affecting a financial
institution, in violation of 18 U.S.C. §§ 1343 and 1349, and eight counts of wire
fraud affecting a financial institution, in violation of 18 U.S.C. § 1342. Mayer
asserts several issues on appeal, which we address in turn. After review, we affirm
Mayer’s convictions, custodial sentence, and restitution, but vacate the forfeiture
order and remand for further proceedings.
I.
Mayer first contends the district court impermissibly prevented him from
obtaining alternative advice and imposed a prior restraint on his speech when it
barred him from consulting with Daniel Jonas and Akiva Fischman, lawyers who
were not admitted to practice in the Middle District of Florida and who did not
intend to be counsel of record. He asserts that, by endorsing his appointed
counsel’s attempts to prohibit Jonas and Fischman from contacting him, the court
violated his right to free association. According to Mayer, the district court further
violated his rights to counsel and due process by ordering the return of discovery
documents to the Government. Finally, he faults the district court for failing to
explain that he could proceed pro se with Jonas serving as advisory counsel.
The district court did not violate Mayer’s constitutional rights. See United
States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004) (reviewing questions of
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constitutional law de novo). Because Mayer was appointed counsel, he had no
right to counsel of his choice or a second legal opinion, and he cannot show the
district court violated his right to counsel by refusing to let Jonas or Fischman
represent him when they were unwilling to be counsel of record. See United States
v. Gonzalez-Lopez, 548 U.S. 140, 144, 151 (2006) (explaining under the Sixth
Amendment, defendants who do not require appointed counsel have the right to
counsel of their choice, but the right does not extend to indigent criminal
defendants who require appointed counsel); Wheat v. United States, 486 U.S. 153,
159 (1988) (stating a defendant may not insist on representation by an attorney
who declines to represent him); United States v. Garey, 540 F.3d 1253, 1263-64
(11th Cir. 2008) (en banc) (“In practical terms, [ ] defendants who lack the means
to hire a private attorney must either accept the counsel appointed to represent
them or represent themselves.”).
The court also did not violate Mayer’s right to self-representation, as he
failed to clearly invoke his right to proceed pro se. See Cross v. United States, 893
F.2d 1287, 1290 (11th Cir. 1990) (stating to invoke the right to self-representation,
the defendant must “clearly and unequivocally assert the desire to represent
himself”). Although the defendant need not “recite some talismanic formula,” he
must “state his request, either orally or in writing, unambiguously to the court so
that no reasonable person can say that the request was not made.” Stano v.
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Dugger, 921 F.2d 1125, 1143 (11th Cir. 1991) (en banc) (emphasis omitted)
(quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986)).
Mayer had no constitutional right to have a particular defense theory
presented at trial, and, in any event, he had the opportunity to present an alternative
narrative by testifying. See Faretta v. California, 422 U.S. 806, 820 (1975)
(stating when a defendant chooses to be represented by an attorney, “law and
tradition may allocate to the counsel the power to make binding decisions of trial
strategy in many areas”). Mayer has provided no authority in support of his First
Amendment arguments, nor has he shown that the alleged violations of his First
Amendment rights rendered his trial unfair. As to the return of the discovery files,
Mayer’s reorganization of these documents was not work product, and he has not
provided any authority suggesting that ordering third parties who are not counsel
of record to return discovery documents is a constitutional violation. See United
States v. Davis, 636 F.2d 1028, 1040 (5th Cir. Unit A Feb. 12, 1981) (explaining
materials prepared by a client are not protected by the work product doctrine).
Finally, because he does not present any specific arguments regarding his right to
effective representation, he abandoned the argument. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (stating if an appellant
makes only passing references to a claim or raises it in a perfunctory manner
without providing support, the argument is abandoned).
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II.
Next, Mayer alleges the district court plainly erred by admitting Special
Agent Ellen Wilcox’s testimony. According to Mayer, Wilcox provided
impermissible overview testimony by testifying to facts without personal
knowledge, and the Government did not present any evidence to confirm the
accuracy of those facts. Mayer asserts Wilcox’s testimony regarding what he said
or did was inadmissible under both Federal Rules of Evidence 602 and 801, and
contends the admission of her testimony was prejudicial because overview
testimony inherently presents serious dangers to a fair trial. Moreover, he alleges,
Wilcox’s testimony “squarely implicate[d]” the problem of juries placing greater
weight on evidence perceived to have the imprimatur of the government. Finally,
Mayer argues that, if her testimony was based on interviews with third parties, the
Government violated the Confrontation Clause by presenting her testimony
without allowing him to cross-examine these witnesses.
When a party fails to contemporaneously object to the admission of
evidence, we review only for plain error. United States v. Turner, 474 F.3d 1265,
1275 (11th Cir. 2007). To demonstrate plain error, the appellant must establish
that there was “(1) error, (2) that is plain and (3) that affects substantial rights.” Id.
at 1276 (quotation omitted). If those conditions are met, we “may then exercise
[our] discretion to notice a forfeited error, but only if (4) the error seriously affects
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the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation
omitted).
Mayer has not demonstrated plain error as he cannot show that any alleged
error in admitting Wilcox’s overview testimony affected his substantial rights. See
United States v. Khan, 794 F.3d 1288, 1300 (11th Cir. 2015) (stating overview
testimony occurs when a government witness testifies as to the results of a criminal
investigation, usually including aspects of the investigation in which the witness
did not participate, before the government has presented supporting evidence).
The majority of Wilcox’s inculpatory testimony regarding the eight properties at
issue in Counts 2 through 9 of the superseding indictment was corroborated by
documentary evidence that had been admitted at the beginning of trial, prior to her
testimony. To the extent any of Wilcox’s testimony was not based on records
already entered into evidence, Mayer has not shown a reasonable probability he
would have been acquitted of any of the charges 1 had this testimony been
1
To convict a defendant of wire fraud, the government must show (1) the defendant
intentionally participated in a scheme to defraud, and (2) use of interstate wires in furtherance of
the scheme. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). To show a scheme
to defraud, the government must present evidence of material misrepresentations or the omission
or concealment of material facts. Id. at 1270-71. “An intent to defraud may be found when the
defendant believed that he could deceive the person to whom he made the material
misrepresentation out of money or property of some value.” United States v. Maxwell, 579 F.3d
1282, 1301 (11th Cir. 2009) (quotation omitted). A jury may infer such intent from the
defendant’s conduct. Id. To prove a conspiracy, the government must show that (1) two or more
persons agreed to commit a crime, and (2) the defendant knowingly and voluntarily joined or
participated in the conspiracy. United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005).
The existence of an agreement may be proven by circumstantial evidence, including inferences
from the conduct of the alleged conspirators. Id.
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excluded, given that the Government’s other evidence of guilt was overwhelming.
See United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (stating
appellant must show there would have been a reasonable probability of a different
result had the error not occurred, and if the effect of the error is uncertain or
indeterminate, the appellant has not met his or her burden of showing substantial
rights were affected).
III.
Mayer further asserts his trial counsel was ineffective. We decline to
consider this claim, as the record is insufficiently developed. See United States v.
Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (explaining we generally do not
consider claims of ineffective assistance of counsel on direct appeal if the district
court did not entertain the claim or develop a factual record). For example,
although Mayer faults his trial counsel for failing to retain expert witnesses or call
defense witnesses, he has not explained how any of these witnesses would have
testified, nor does the record establish what the substance of the proposed
witnesses’ testimony would have been. Thus, there is no way of knowing whether
counsel’s performance was deficient or whether Mayer was prejudiced. See
United States v. Moran, 778 F.3d 942, 965 n.11 (11th Cir. 2015) (stating to prevail
on an ineffective assistance claim on direct appeal, the defendant must show both
that his counsel’s performance was deficient and that he was prejudiced by the
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deficiency). We also decline to remand the case to the district court for an
evidentiary hearing, as a § 2255 motion to vacate is the appropriate means by
which to assert an ineffective assistance claim. See Patterson, 595 F.3d at 1328
(stating even if the record contains some indication of deficiencies in counsel’s
performance, the preferred means of reviewing an ineffective assistance claim is
through a 28 U.S.C § 2255 motion to vacate sentence).
IV.
Mayer contends the district court abused its discretion by admitting evidence
he failed to file personal and corporate federal income tax returns, which he asserts
is inadmissible under Federal Rule of Evidence 404(b). According to Mayer, this
evidence was irrelevant to the only intent, motive, or knowledge issues in the case,
which centered on whether he knew the credit partners “could not lawfully borrow
money using the method they employed.” Moreover, he argues, the Government
did not calculate whether he was even required to file a personal tax return.
Assuming arguendo the district court abused its discretion in admitting
evidence Mayer had not filed personal or corporate income tax returns, Mayer has
not shown that this error warrants reversal, as any error was harmless. See United
States v. Hubert, 138 F.3d 912, 914 (11th Cir. 1998) (explaining if we conclude a
district court abused its discretion in admitting evidence in violation of Rule
404(b), we then determine whether the error was harmless). As discussed above,
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the Government presented ample evidence of guilt. This evidence was sufficient
for a reasonable jury to find Mayer guilty beyond a reasonable doubt even if the
district court had excluded evidence he failed to file personal and corporate federal
income tax returns. See id. (stating when the other evidence against the defendant
is sufficiently substantial for a reasonable jury to find the defendant guilty beyond
a reasonable doubt, any error in admitting evidence in violation of Rule 404(b) is
harmless).
V.
Mayer next asserts the cumulative effect of the alleged errors previously
described deprived him of his right to a fair trial. Assuming arguendo the district
court admitted some evidence in error, in light of the overwhelming untainted
evidence against Mayer, any potential error was harmless. United States v. Hesser,
800 F.3d 1310, 1329-30 (11th Cir. 2015).
VI.
In his final claim, Mayer raises several issues regarding his sentence. We
address each alleged error in turn.
A.
First, Mayer challenges the loss amount enhancement, contending the
calculated loss amounts with respect to four properties “were based upon no
evidence at all.” As to two of the properties, Mayer states there is no evidence the
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mortgages were still outstanding at the time of the tax sales. As to the other two
properties, Mayer alleges the mortgages “are still in place,” and thus the lenders
have not suffered any losses.
Under the Guidelines, a defendant may receive an eighteen-level
enhancement if the actual or intended loss of the offense conduct was greater than
$2,500,000 but did not exceed $7,000,000. U.S.S.G. § 2B1.1(b)(1)(J) (Nov.
2014)2; id. § 2B1.1 comment. (n.3(A)). The government must prove the
attributable loss by a preponderance of the evidence, and this burden must be
established by reliable and specific evidence. United States v. Dabbs, 134 F.3d
1071, 1081 (11th Cir. 1998). The Guidelines do not require a precise
determination of the loss, however. United States v. Cavallo, 790 F.3d 1202, 1232
(11th Cir. 2015). Rather, the district court need only make a reasonable estimate of
the loss based on the available information. Id.
The district court did not plainly err in calculating the loss amount. See
United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003) (stating if a defendant
failed to clearly state the grounds for an objection in the district court we review
only for plain error). As to the properties located at 2914 North 17th Street and
913 East 28th Avenue, Wilcox’s explanation at trial—that the mortgages remained
outstanding when the County issued a tax deed on the properties, resulting in “total
2
All citations are to the November 2014 version of the Guidelines, under which Mayer
was sentenced.
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loss[es]” to the lenders—refutes Mayer’s contention that there is no evidence the
mortgages with respect to these properties remained in place at the time of the tax
sales. Wilcox’s trial testimony also belies his assertion the lenders have not
realized any losses as to the other two properties (915 East 23rd Avenue and 3510
North 11th Street) because the mortgages remain outstanding. To the extent Mayer
intends to challenge the loss calculations for the remaining eight properties, he
abandoned the argument because he did not develop it or point to any specific
examples in which there was insufficient reliable evidence upon which the district
court could base its loss calculations. See Sapuppo, 739 F.3d at 681.
B.
Second, Mayer challenges the four-level enhancement he received for being
a leader or organizer of the scheme. Noting only three co-conspirators admitted to
knowingly participating in the scheme, he asserts the sole evidence supporting a
finding that others knowingly participated in criminal activity was “Wilcox’s
hearsay testimony.”
The commentary to U.S.S.G. § 3B1.1 defines a “participant” as “a person
who is criminally responsible for the commission of the offense, but need not have
been convicted.” U.S.S.G. § 3B1.1, comment. (n.1). To apply the § 3B1.1
enhancement, the district court must determine, by a preponderance of the
evidence, that the individual or individuals were criminally responsible. United
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States v. Williams, 527 F.3d 1235, 1248-49 (11th Cir. 2008). Those whose role
was de minimis will not be counted. Id. at 1249. The defendant himself is
considered one of the five participants. United States v. Holland, 22 F.3d 1040,
1045 (11th Cir. 1994).
The district court did not err in applying a four-level role enhancement. See
Williams, 527 F.3d at 1249 (11th Cir. 2008) (reviewing the district court’s
application of § 3B1.1 to determine a person is a “participant” de novo and the
underlying factual findings for clear error). The evidence at trial demonstrated that
Naomi D’Esop acted as a straw buyer and obtained mortgages to buy several
properties, which she could not afford to pay off. She testified that, in buying
properties and obtaining the requisite mortgages, she signed numerous documents
containing false statements. Her testimony was sufficient to establish by a
preponderance of the evidence that she was a knowing participant in Mayer’s
scheme. See Williams, 527 F.3d at 1248-49. Mayer concedes that three others
knowingly participated in the scheme, and he himself is considered a participant.
See Holland, 22 F.3d at 1045. Thus, the district court did not err in determining
there were at least five participants.
C.
Third, Mayer contends “[t]he restitution figures contained in [the PSI] are
not explained anywhere in the record.” He asserts the district court could only
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order restitution as to the amount of losses caused by his commission of the
charged offenses. He contends some of the lenders were not financial institutions,
and the statute of limitations expired as to some of his conduct prior to the filing of
the indictment. He further asserts Wilcox’s testimony as to the amount of the
losses on some properties was uncorroborated.
Under the Mandatory Victims’ Restitution Act (MVRA), 18 U.S.C.
§§ 3663A-3664, restitution for “wire fraud is not ‘limited to the specific act of
fraud underlying the mailing or use of the wires for which the defendant is
convicted,’ but is available for any victim of ‘the entire scheme or artifice to
defraud furthered by the mailing or use of the wires.’” United States v. Foley, 508
F.3d 627, 635 (11th Cir. 2007). “[A] criminal defendant cannot be compelled to
pay restitution for conduct committed outside of the scheme, conspiracy, or pattern
of criminal behavior underlying the offense of conviction.” United States v.
Brown, 665 F.3d at 1239, 1253 (11th Cir. 2011) (quotations omitted). Restitution
is appropriate, however, for victims of “conduct closely related to the offense of
conviction . . . in addition to the specific conduct for which the defendant was
convicted.” Id. at 1252. In considering whether conduct was closely related, we
consider whether the victim and purpose of each scheme were the same, whether
the schemes involved the same modus operandi, and whether the schemes involved
common participants. United States v. Edwards, 728 F.3d 1286, 1293 (11th Cir.
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2013). Restitution is available even if the losses were caused by conduct that
occurred outside the statute of limitations, so long as the conduct was in the course
of the scheme. Brown, 665 F.3d at 1253.
“To be considered a ‘victim’ under the MVRA, an entity must have been
‘directly and proximately harmed as a result of the commission of [the] offense.’”
See United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015). Successor lenders
may be “victims” under the MVRA. Id. at 593-94.
The district court did not plainly err in ordering restitution to Wilmington
Savings Fund Society (Wilmington), Bank of America, DLJ Mortgage Capital,
Inc., US Bank National Association, Deutsche Bank National Trust, and JP
Morgan Chase (JP Morgan). See United States v. Hasson, 333 F.3d 1264, 1276
(11th Cir. 2003) (stating if the defendant fails to object to the restitution order, we
review the order for plain error). As to the properties located at 915 East 23rd
Avenue and 3510 North 11th Street, Wilcox explained these mortgages were a loss
to the lenders because no one was paying them. The record demonstrates Wilcox’s
testimony regarding the sales of the properties located at 5005 Troydale Road,
2306 North Nebraska Avenue, and 3514 North 9th Street was based on her review
of warranty deeds and bank records, and the Government introduced evidence
corroborating her testimony about the sales of the properties at 2911 North 18th
Street and 918 East 14th Avenue. See Martin, 803 F.3d at 593 (providing the
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government has the burden of proving by a preponderance of the evidence that a
particular entity was a victim of the defendant’s offense). As to Mayer’s
challenges to the restitution orders in favor of Bank of America, Wilmington, and
JP Morgan, the district court was entitled to rely on the undisputed factual
statements in the presentence investigation report, which listed these entities as
victims of Mayer’s fraud. See Hasson, 333 F.3d at 1276 (stating a district court
may generally rely on undisputed factual statements in a PSI when ordering
restitution). Finally, any error in awarding restitution based on uncharged conduct
from a closely related scheme that occurred outside of the statute of limitations was
not clear or obvious, given our precedent allowing for restitution for conduct
closely related to the charged conduct and for conduct occurring outside of the
statute of limitations. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291
(11th Cir. 2003) (explaining when the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error if there is not binding
precedent directly resolving it).
D.
Finally, Mayer alleges the district court erred by ordering him to forfeit the
proceeds from loans that did not affect a financial institution. If the defendant did
not object to the entry of the forfeiture order, we review the order for plain error.
United States v. Esquenazi, 752 F.3d 912, 939 n.22 (11th Cir. 2014). Federal law
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requires that, in sentencing defendants “convicted of a violation of, or conspiracy
to violate . . . [18 U.S.C. § 1343], affecting a financial institution,” courts “shall
order that the person forfeit to the United States any property constituting, or
derived from, proceeds the person obtained directly or indirectly, as the result of
such violation.” 18 U.S.C. § 982(a)(2).
The district court plainly erred in ordering Mayer to forfeit the proceeds of
wire fraud not affecting a financial institution, pursuant to § 982(a)(2). See
Esquenazi, 752 F.3d at 939 n.22. The district court’s forfeiture order was
erroneous, as at least some of the mortgage proceeds were not dependent on Mayer
defrauding a financial institution. For example, none of the loans that were taken
out on 5005 Troydale Road were obtained from financial institutions, yet Mayer
was ordered to forfeit nearly $1 million as a result of the final mortgages taken out
on this property.
The error was also plain, given that § 982(a)(2) provides that the court must
order a defendant convicted of violating or conspiring to violate the federal wire
fraud statute “affecting a financial institution” to forfeit “proceeds the person
obtained directly or indirectly, as the result of such violation,” and at least some of
the proceeds from mortgage loans were not obtained directly or indirectly as a
result of the offenses for which Mayer was convicted. See 18 U.S.C. § 982(a)(2)
(emphasis added); Lejarde-Rada, 319 F.3d at 1291. At least some of the proceeds
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from mortgage loans, such as the loans taken out on 500 Troydale, were not
obtained directly or indirectly as a result of the offenses for which Mayer was
convicted; rather, they were obtained as a result of his related scheme to commit
wire fraud not affecting a financial institution.
The error also affected Mayer’s substantial rights. See Turner, 474 F.3d at
1276. The total value of the final mortgages taken out on the 12 properties,
$4,404,200, was the figure the Government used to calculate the forfeiture amount.
Only $1,114,200 of these mortgages came from GreenPoint, an FDIC-insured
entity. Straw buyers obtained the remaining $3,290,000 in mortgages from First
NLC, Silver State, American Brokers Conduit, Hometown, and Ownit. The
Government did not submit any evidence showing the entities are FDIC-insured,
and none of the charges stemmed from these mortgages. Because the inclusion of
mortgages from non-FDIC insured entities nearly quadrupled the forfeiture
amount, the inclusion was prejudicial. Finally, given the fact the error is both plain
and prejudicial, the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See Turner, 474 F.3d at 1276.
VI.
The district court did not err in ordering Mayer not to contact Jonas or
Fischman or in ordering the return of discovery documents to the Government.
The district court did not plainly err in admitting Wilcox’s testimony, calculating
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the loss amount, or ordering restitution. We decline to review on direct appeal
Mayer’s claim of ineffective assistance. Assuming arguendo the district court
erred in admitting evidence Mayer failed to file personal and corporate federal
income tax returns, he has not demonstrated he was prejudiced by the error.
Further, he cannot show cumulative error. The district court also properly applied
the four-level role enhancement. Finally, because the district court plainly erred in
ordering Mayer to forfeit the proceeds of loans that were not obtained directly or
indirectly as a result of his conspiracy to commit wire fraud affecting a financial
institution or as the result of his commission of wire fraud affecting a financial
institution, we vacate the forfeiture order and remand for further proceedings.
AFFIRMED IN PART, VACATED AND REMENDED IN PART.
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