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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15761
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D.C. Docket No. 3:17-cr-00043-RV-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSHUA DAVID SAMS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 18, 2019)
Before ROSENBAUM, BRANCH and HIGGINBOTHAM, * Circuit Judges.
PER CURIAM:
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
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Joshua David Sams appeals from his seven fraud-related convictions. He
argues that the government’s evidence of his guilt was insufficient. After careful
consideration, we affirm.
I.
The district court recounted that the jury could have found the following facts
based on the evidence presented at Sams’s trial:
In 2011, Christopher Asmar came up with the idea for a
social media cell phone “app” known as HippySocial.
While looking for a software engineering firm capable of
developing the app for him, Asmar was introduced to the
defendant. The defendant, who had experience with
computers (but was not employed as a software engineer
or developer), represented that he could help Asmar find a
qualified engineering firm to develop the app, and he
offered his services as a paid “consultant.” The defendant
then contacted his friend, an entrepreneur and hot air
balloon pilot named Henry Steiger, and had him pose as a
software developer named Robert Woods, president of
Woods Security Group (WSG). “Robert Woods” told
Asmar that his company had an office in California staffed
with 50 software engineers capable of developing the app.
These and numerous other lies induced Asmar to enter into
contracts and ultimately pay the defendant and WSG about
$300,000 to develop the app. Asmar testified during trial
that if he had known the truth, he never would have signed
the contracts.
In a footnote, the court noted that Sams had “conceded that Steiger, who has a
medical background, ‘knows about as much about the actual technology [of software
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development] as I know about medicine.’” The court continued its recitation of the
evidence at trial:
This case is a little unusual in that despite all of the lies
and misrepresentations, it appears that the defendant
wanted and expected the app to succeed; and with help
from some (mostly Russian) contract engineers that he
hired, he eventually completed it and delivered it to Asmar
pursuant to the contract.
The evidence at trial revealed that, while Asmar paid Sams about $332,000, Sams
paid the contract engineers about $78,000 to produce the app. The district court
continued its recitation:
Although Asmar was never given access to the full code—
and it would not always work properly as it would
sometimes turn off and on—he was very pleased with the
app overall. Nevertheless, for a variety of different
reasons, HippySocial did not turn out to be “the next
Facebook” success that the parties had anticipated.
In an attempt to get additional payments out of Asmar, the
defendant then had another friend, Michael Karl Turner,
pose as a man named Brett Prince and claim that he
represented LVMH Acquisitions Inc., a (fictitious)
company that wanted to buy the completed HippySocial
app for $6 million. To further the scheme, “Brett Prince”
gave Asmar an investment account statement reflecting
that LVMH’s account had a balance of $14 million, which
was a total fabrication.
For Sams’s conduct related to Asmar’s payments for developing the app, a
grand jury charged Sams with one count of conspiracy to commit wire fraud, 18
U.S.C. §§ 1343, 1349 (Count I), three counts of wire fraud, in violation of 18 U.S.C.
§ 1343 (Counts II-IV) and one count of money laundering, in violation of 18 U.S.C.
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§ 1957 (Count V). For the conduct related to the purported offer to purchase the
app, the grand jury charged Sams with another count of conspiracy to commit wire
fraud (Count VI) and one count of wire fraud (Count VII). The same indictment
charged codefendants Steiger and Turner with counts of wire fraud and conspiracy
to commit wire fraud. Both codefendants pled guilty and testified at Sams’s trial.
II.
On appeal, Sams argues that the government’s proof of all of the charged
crimes was insufficient. Specifically, as to the wire-fraud counts related to the
development of the app, charged in Counts II, III, and IV of the indictment, Sams
asserts that the government’s proof that he participated in a scheme to defraud was
insufficient because Asmar “received what he bargained for.” And in the absence
of the substantive wire-fraud counts, he says, the government’s proof of Counts I
and V, which charged conspiracy and money laundering related to Counts II through
IV, was also insufficient. As to the wire-fraud count charged in Count VII of the
indictment, Sams says that the conduct at issue was a lawful attempt to collect a
legitimate debt Asmar owed him related to the development of the app. In the
absence of that wire-fraud count, Sams further contends, the evidence of the
conspiracy charged in Count VI was also insufficient.
A defendant is guilty of wire fraud if the evidence proves that the defendant
(1) intentionally participated in a scheme or artifice to defraud another of money or
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property, and (2) the defendant used interstate wires, or caused them to be used, for
the purposes of executing the scheme. 18 U.S.C. § 1343; United States v. Bradley,
644 F.3d 1213, 1238 (11th Cir. 2011). Here, only the first element is at issue.
The words “to defraud” commonly refer “to wronging one in his property
rights by dishonest methods or schemes” and “usually signify the deprivation of
something of value by trick, deceit, chicane or overreaching.” McNally v. United
States,
483 U.S. 350, 358 (1987); Hammerschmidt v. United States,
265 U.S. 182,
188 (1924); United States v. Svete,
556 F.3d 1157, 1161-62 (11th Cir. 2009) (en
banc). To prove the “scheme or artifice to defraud” element of wire fraud thus
“requires proof of a material misrepresentation, or the omission or concealment of a
material fact calculated to deceive another out of money or property.”
Bradley, 644
F.3d at 1238; United States v. Maxwell,
579 F.3d 1282, 1299 (11th Cir. 2009).
We revisited the definition of “scheme to defraud” in United States v.
Takhalov,
827 F.3d 1307 (11th Cir. 2016). The defendants in that case did not
dispute that they lured customers into their bar using women whom they secretly
compensated to pose as patrons of their establishment.
Takhalov, 827 F.3d at 1310-
11. But the government also presented evidence that the defendants’ employees
engaged in other fraud to increase the victims’ tabs, which the defendants claimed
to have known nothing about.
Id. The defendants therefore proposed that the court
instruct the jury that, if they believed the defendants knew nothing other than that
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they were paying the women to lure in customers, and found that the customers
requested the drinks and received them at the stated prices, then the jury must acquit.
Id. The trial judge did not give the requested instruction, and the jury convicted the
defendants.
Id. at 1311.
We reversed.
Id. at 1316. Recounting our prior precedent, we noted that “if
a defendant does not intend to harm the victim—‘to obtain, by deceptive means,
something to which [the defendant] is not entitled’—then he has not intended to
defraud the victim.”
Id. at 1313 (quoting
Bradley, 644 F.3d at 1240). Thus, we
extrapolated, if the jury concluded that the defendants “gave the victims exactly what
they asked for and charged them exactly what they agreed to pay,” then there had
not been a scheme to defraud.
Id. at 1310, 1314. To illustrate the point, we gave the
following hypothetical:
[A] young woman asks a rich businessman to buy her a
drink at Bob’s Bar. The businessman buys the drink, and
afterwards the young woman decides to leave. Did the
man get what he bargained for? Yes. He received his
drink, and he had the opportunity to buy a young woman
a drink. Does it change things if the woman is Bob’s sister
and he paid her to recruit customers? No; regardless of
Bob’s relationship with the woman, the businessman got
exactly what he bargained for. If, on the other hand, Bob
promised to pour the man a glass of Pappy Van Winkle
[an expensive bourbon] but gave him a slug of Old Crow
[a cheap bourbon] instead, well, that would be fraud.
Why? Because the misrepresentation goes to the value of
the bargain.
Id. at 1313.
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Our decision in Takhalov—which concluded that no scheme to defraud
occurred where a defendant provided purported victims with “exactly what they
asked for and charged them exactly what they agreed to pay”—expresses the same
rule we have applied in our prior precedent. In Maxwell, for example, the defendant
was the executive in charge of an office of a large contracting
company. 579 F.3d
at 1288. The defendant won several contracts to do electrical work for the
government by representing that small or disadvantaged businesses, or both, were
performing a “commercially useful function in the completion of the contract[s]”
when, in fact, those businesses were merely passing payments along to the
defendant’s company, which was performing all of the work.
Id. at 1288-89. The
defendant’s company ultimately performed on the contracts, but we held that its
deception nevertheless constituted a “scheme to defraud” because the defendant
“dishonestly circumvent[ed] the worthy purpose” of the government’s requirements.
Id. at 1303.
Our decisions in Takhalov and Maxwell are also consistent with other circuits’
interpretations of “scheme to defraud.” In United States v. Treadwell,
593 F.3d 990
(9th Cir. 2010), for example, the Ninth Circuit likewise concluded that the intent to
harm that a scheme to defraud requires is satisfied when a defendant deceives victims
into paying for items or opportunities of one type while actually providing another
type, which differs in some way important to the victims, from what was promised:
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The intent to induce one’s victim to give up his or her
property on the basis of an intentional misrepresentation
causes “harm” by depriving the victim of the opportunity
to weigh the true benefits and risks of the transaction,
regardless of whether or not the victim will suffer the
permanent loss of money or property.
Treadwell, 593 F.3d at 997-98. As we noted in Maxwell, “financial loss is not at the
core” of mail and wire fraud, and such a scheme can exist “[r]egardless of the quality
or cost of the work completed” by the schemer.
Maxwell, 579 F.3d at 1302.
In reviewing whether the government’s evidence was sufficient to prove that
Sams’s conduct constituted a scheme to defraud, we view the evidence in the light
most favorable to the government and draw all reasonable inferences and credibility
choices in favor of the factfinder’s verdict. United States v. Suarez,
893 F.3d 1330,
1333-34 (11th Cir. 2018).1
Applying those principles to this case, Sams’s conduct constituted a scheme
to defraud. First, contrary to Sams’s argument that the evidence of Counts I through
V of the indictment was insufficient, Sams did not provide Asmar with “exactly what
he paid for.”
Sams represented to Asmar that his friend Steiger was “Robert Woods,”
president of Woods Security Group, which had 50 software engineers ready to
1
We reject Sams’s suggestion, raised for the first time in his reply brief, that we should not
view the evidence in the light most favorable to government. Merits of his contention aside, “we
decline to consider issues raised for the first time in an appellant’s reply brief.” United States v.
Britt,
437 F.3d 1103, 1104 (11th Cir. 2006).
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develop his app idea. Using the analogy in Takhalov, Sams offered Asmar Pappy
Van Winkle. Naturally, Asmar testified that he would not have signed the contract
had he known that “Robert Woods” was actually a hot-air balloon pilot, not the
president of a company with a team of software engineers. Sams ultimately
delivered something fairly described as a completed “app,” but neither the fictional
Woods nor the fictional expert company had been involved.
Rather, Sams pocketed Asmar’s money and hired relatively inexpensive
contract programmers. Instead of serving Asmar the promised Pappy Van Winkle,
Sams poured Old Crow. And it showed in the programming. The government
presented evidence that the app shut off from time to time and experienced other
“bugs.” Sams deprived Asmar of the opportunity to weigh the true risks and benefits
of the transaction and thereby accomplished a scheme to defraud. See
Treadwell,
593 F.3d at 997-98. As we have previously held, this is true regardless of whether
Asmar experienced a financial loss, and regardless of the quality or cost of the work
performed by Sams’s contract engineers.
Maxwell, 579 F.3d at 1302.
The government’s evidence of the wire fraud charged in Counts II, III, and IV
was therefore sufficient to prove Sams’s guilt. And, since Sams makes no other
argument about the sufficiency of the related conspiracy and money-laundering
counts, the evidence of Counts I and V was also sufficient.
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Having concluded that the government’s evidence of Counts I through V was
sufficient, we also reject Sams’s arguments concerning the sufficiency of the
government’s evidence of Counts VI and VII. Those arguments are premised on
Sams’s assertions that Asmar owed Sams a legitimate debt for his role in developing
the app and that proof of a scheme to defraud had to include Sams’s attempt to
receive “something to which he was not entitled.” But Asmar’s purported debt to
Sams was the result of Sams’s scheme to defraud, and not something to which he
was entitled. The government’s evidence of Counts VI and VII was therefore
sufficient.
III.
In sum, the judgment of the district court is AFFIRMED.
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