Case: 12-12424 Date Filed: 05/28/2013 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12424
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D.C. Docket No. 9:11-cr-80172-KLR-5
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHERYL STEPHENSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 28, 2013)
Before BARKETT and MARCUS, Circuit Judges, and CONWAY, * District Judge.
PER CURIAM:
*
Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle
District of Florida, sitting by designation.
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This appeal arises out of a telemarketing scheme to sell a septic treatment
product called “Septic Remedy,” which was the subject of an Environmental
Protection Agency (“EPA”) investigation. Cheryl Stephenson briefly worked as a
telemarketing representative for the company that sold Septic Remedy. The
government charged Stephenson with two counts of wire fraud in violation of
18
U.S.C. § 1343, alleging that she fraudulently made representations to prospective
customers to induce sales. At the close of the government’s case, Stephenson
moved for a judgment of acquittal, arguing that there was insufficient evidence to
convict her of wire fraud. The district court denied that motion, and the jury found
Stephenson guilty as charged. Stephenson filed a motion for judgment
notwithstanding the verdict or in the alternative a motion for a new trial, which the
district court also denied.1 After extensive review of the record, we reverse
Stephenson’s conviction.
The government’s evidence to prove Stephenson’s specific intent to defraud
consisted of: (1) the testimony of co-defendants Christopher Lincoln and Mary
Moore, both of whom testified that they trained and encouraged Stephenson to use
the phrase “EPA approved” in selling the product; and (2) Stephenson’s
handwritten notes taken during on-the-job training. None of this evidence shows
1
At sentencing, the district court judge commented “[t]o some extent, I think that
[Stephenson] was a victim of the owners of the company.” The district court sentenced
Stephenson to time served as to each count (four days), supervised release for a period of two
years, restitution in the amount of $626.88, and a special assessment of $200.
2
Case: 12-12424 Date Filed: 05/28/2013 Page: 3 of 3
that Stephenson knew that any representations she might have made were, in fact,
false. There is nothing in the testimony of Lincoln and Moore reflecting that they
told or even suggested to Stephenson that the "EPA approved" phrase was false, or
that the product was not EPA approved. With reference to Stephenson’s
handwritten notes, the evidence does not support the conclusion that the
representations in the notes taken were false, and, therefore, the notes could not
provide a basis from which a jury could infer fraudulent intent on the part of
Stephenson.
Thus, we conclude that no reasonable jury could find that the evidence
presented at trial as to Stephenson’s guilt met the requisite standard of proof
beyond a reasonable doubt. United States v. Langford,
647 F.3d 1309, 1319 (11th
Cir. 2011).
REVERSED and REMANDED, with instructions to the district court to
VACATE Stephenson’s final judgment of conviction.
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