United States v. James Howard, Jr. ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 10-11372 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 7, 2012
D. C. Docket No. 0:08-cr-60279-DTKH-2 JOHN LEY
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES HOWARD, JR.,
Defendant-Appellant.
________________________
No. 10-11373
________________________
D. C. Docket No. 0:08-cr-60279-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
POMPANO HELICOPTERS, INC.,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 7, 2012)
Before DUBINA, Chief Judge, ANDERSON, and KLEINFELD,* Circuit Judges.
PER CURIAM:
After oral argument and careful consideration, we conclude that the district
court is due to be affirmed. We address several of the issues raised on appeal.
We reject defendants’ argument that the statute of limitations bars the mail
fraud conviction of Pompano. We note that the mailing at issue occurred on
September 29, 2003, and the indictment was filed on September 25, 2008, within
the 5-year period of the statute of limitations. We reject defendants’ argument that
the fraud was completed, and had come to its fruition, as of December 2002, when
defendants received the purchase money for the helicopter from the Mexican
purchaser. Part and parcel of the scheme to defraud alleged in the indictment was
the provision of false documents to the FAA so that the helicopter could be de-
registered from the FAA and clear title could be transferred to the Mexican
________________
*Honorable Andrew J. Kleinfeld, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
2
purchaser. Pompano was convicted of the mail fraud count; the jury found that the
alleged fraud had in fact occurred. Ample evidence supports the jury’s verdict.
We reject defendants’ challenge to the venue for the false statements charges
against Howard and Pompano. The false statement in the instant case was prepared
in, and mailed from, the Southern District of Florida. Venue there is expressly
authorized under 18 U.S.C. §3237(a). See also United States v. Greene, 862 F.2d
1512, 1515 (11th Cir. 1989) (holding that venue is proper in §1014 cases in the
district where the false statement is prepared and mailed, and noting that §1014
cases are governed by the same general rule of venue as are cases brought under
§1001, namely 18 U.S.C. §3237(a)).
We reject defendants’ argument that the mail fraud and false statement
charges against Pompano were multiplicitous. Count I required a mailing, but no
false statement. Count III required a false statement, but no mailing. Moreover,
defendants failed to raise the multiplicitous argument before trial. We decline to
entertain related arguments made by defendants under this heading because they
are insufficiently developed or raised for the first time in the Reply brief.
We reject defendants’ argument that the district court erred in admitting into
evidence a copy of the lien release and disclaimer (“R&D”). The original was
destroyed pursuant to a routine document retention policy. The district court found
that there was no evidence of bad faith, no evidence of knowledge of the pending
3
litigation, and no evidence spoilation. Defendants’ initial brief on appeal fails to
explain how defendants were prejudiced. For example, defendants failed to show
that the copy introduced into evidence was deficient in any manner relating to
defendants’ ability to dispute the evidence of forgery.
With respect to Pompano’s mail fraud conviction, defendants’ argue that the
district court erred in omitting the word “willfully” in the jury instruction. We
reject defendants’ argument because defendants failed in their opening brief to cite
any authority to support their argument, and because defendants failed to explain
how and why the omission prejudiced them in the jury’s consideration of their
defense. Defendants’ challenge to the instructions with respect to statute of
limitations is rejected for the several reasons fully discussed at oral argument, and,
alternatively, because the argument was insufficiently developed in defendants’
initial brief.
We reject defendants’ challenge to the Allen charge given by the district
court. Defendants’ briefs on appeal fail to explain how the instruction in the
instant case, under the circumstances of the instant case, was more coercive than in
our binding precedent. See, e.g.,, United States v. Rey, 811 F.2d 1453 (11th Cir.
1987).
We reject defendants’ arguments challenging the district court’s loss
calculation, both as inadequately developed in defendants’ initial brief, and as
4
being wholly without merit. In any event, we conclude that there is ample evidence
to support the district court’s loss calculation.
We reject defendants’ challenge to the district court’s obstruction of justice
enhancement. The district court found that the testimony of defendant Howard’s
sister and wife was not credible, and that Howard had procured their testimony.
Contrary to defendant’s argument, there is ample evidence to support the district
court’s findings.
We reject defendants’ restitution arguments. With respect to Pompano,
defendants’ arguments are frivolous. With regard to defendant Howard, we agree
with the district court that TFC and Cessna were proximately harmed as a result of
the commission of the false statement charge of which he was convicted.
Other issues raised by defendants on appeal are rejected without need for
further discussion.
AFFIRMED.
5