United States v. Todd Mayo , 192 F. App'x 879 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 9, 2006
No. 05-10663 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00181-CR-T-27-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TODD MAYO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 9, 2006)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Todd Mayo appeals his convictions for mail fraud, in violation of 18
U.S.C.§ 1341, and forgery, in violation of 18 U.S.C. § 513(a).1 On appeal, he
argues that the evidence is insufficient to sustain either conviction. For the reasons
set forth more fully below, we affirm.
We review the sufficiency of the evidence de novo, “viewing the evidence in
the light most favorable to the government.” United States v. Garcia, 405 F.3d
1260, 1269 (11th Cir. 2005). We also make all reasonable inferences and
credibility choices in favor of the government and the jury’s verdict. Id. We must
affirm “unless, under no reasonable construction of the evidence, could the jury
have found the [defendant] guilty beyond a reasonable doubt.” Id. “The evidence
need not exclude every hypothesis of innocence or be completely inconsistent with
every conclusion other than guilt because a jury may select among constructions of
the evidence.” U.S. v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).
Mayo ran two companies, Pacific Capital Corporation (“PCC”) and Security
Trust Income Fund, LLC (“STIF”), which loaned private investor money to
borrowers and secured the loans with real estate, placing deeds of trust on the
properties. Mayo’s investors included Robert Peck, his brother, David Peck, and
1
Mayo was charged with four counts of mail fraud, one count of transportation of stolen
property, and one count of forgery. The district court granted Mayo’s motion for judgment of
acquittal as to one of the mail fraud counts, and the jury acquitted Mayo on two of the remaining
mail fraud counts and the transportation of stolen property count.
2
Morton Myerson. All three invested in STIF. Mayo’s convictions are based upon
a PCC check representing the return of Robert Peck’s $225,000 principal
investment in PCC. This check contained a forged endorsement, and the bank
stamps on the back of the check came from another PCC check. A copy of this
check was mailed to Robert Peck in December 2000.
On appeal, Mayo challenges the mail fraud conviction, arguing that the
evidence does not establish a scheme to defraud, but conversion of legally obtained
funds and acts designed to forestall discovery of a simple theft. He further argues
that the jury verdict demonstrates that the government failed to prove a scheme to
defraud regarding STIF investments. He contends that the theory that the mailing
lulled investors does not make sense because no reasonably prudent person would
rely upon the canceled check. In addition, Mayo asserts that the only purpose of
the cancelled check would be to alert Peck that something was wrong, and,
therefore, does not amount to mail fraud.
“Mail fraud consists of the following elements: ‘(1) an intentional
participation in a scheme to defraud a person of money or property, and (2) the use
of the mails in furtherance of the scheme.’” United States v. Sharpe, 438 F.3d
1257, 1263 (11th Cir. 2006) (citation omitted). “A scheme to defraud requires
proof of material misrepresentations, or the omission or concealment of material
3
facts reasonably calculated to deceive persons of ordinary prudence.” United
States v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir. 2003) (citations omitted).2
“While a mailing is a required element of a § 1341 claim, the use of the mails need
not be an essential element of the scheme; for a mail fraud conviction, it is
sufficient if the government shows that the mailing was ‘incident to an essential
part of the scheme’ or ‘a step in the plot.’” United States v. Lee, 427 F.3d 881, 887
(11th Cir. 2005), cert. denied, 126 S.Ct. 1447 (2006) (citation omitted). The
defendant need not personally mail the item, but need only cause a use of the
mails. United States v. Funt, 896 F.2d 1288, 1292, 1294 (11th Cir. 1990); see also
United States v. Toney, 598 F.2d 1349, 1355 (5th Cir. 1979) (“One ‘causes’ the
mails to be used when he ‘does an act with knowledge that the use of the mails will
follow in the ordinary course of business, or where such use can reasonably be
foreseen, even though not actually intended.’”) (citation omitted).
The mailings can occur after the goods are fraudulently obtained “if they
‘were designed to lull the victims into a false sense of security, postpone their
ultimate complaint to the authorities, and therefore make the apprehension of the
defendants less likely than if no mailings had taken place.’” United States v. Lane,
2
Although Hasson is a wire fraud case, “[t]he ‘scheme or artifice to defraud’ and ‘for the
purpose of executing’ language in the mail and wire fraud statutes are construed identically.”
Hasson, 333 F.3d at 1271 n.7.
4
474 U.S. 438, 451-452, 106 S.Ct. 725, 733, 88 L.Ed.2d 814 (1986) (citation
omitted). Letters that are designed to conceal the fraud by lulling the victim into
inaction or that are designed to allay suspicions are actionable under the fraud
statute. United States v. Georgalis, 631 F.2d 1199, 1204-05 (5th Cir. Unit B 1980).
One “common element in the ‘lulling’ cases is that the lulling devices comprised a
fundamental part of the basic scheme and its desired continued perpetration.”
Henderson v. United States, 425 F.2d 134, 143 (5th Cir. 1970).
The evidence is sufficient for a jury to find a scheme to defraud STIF
investors.3 Mayo explained that, although he had a number of pending transactions
from which he was expecting revenue, he was experiencing a short-term cash-flow
problem between approximately April and June 2000. There is sufficient evidence
for the jury to find that Mayo was seeking additional funds to get PCC and STIF
(and himself) through the cash-flow crisis, and that he secured such funds from
Myerson and the Pecks by misrepresenting how he intended to use the money. As
evidence of his intent to defraud, the evidence shows that Myerson, Robert Peck,
and David Peck invested in STIF during the time that STIF and PCC were in a
3
Acquittal by the jury on the other mail fraud counts does not demonstrate that the
evidence of a scheme to defraud was insufficient, as the jury could have acquitted for other
reasons. Funt, 896 F.2d at 1293. In addition, the verdict is not necessarily inconsistent, as the
jury could have found that there was a scheme to defraud, but that the checks in the remaining
two counts — payment of interest to PCC investors — were not mailed in furtherance of the
scheme to defraud.
5
cash-flow crisis. They all believed that their money would be used for investment
purposes. Mayo did not give David Peck any reason to believe that things were not
going well, his money was at risk, or he would not receive interest payments. He
did not give Myerson any reason to think that his money was at risk, and did not
tell Myerson that he was experiencing a cash-flow crisis or that he would use the
money to pay expenses.
The use of the STIF investor funds provides further evidence of Mayo’s
scheme to defraud. Both of Robert Peck’s checks were deposited directly into
PCC’s bank account, and, after Myerson’s $250,000 investment and David Peck’s
$5,000 investment were deposited in STIF’s bank account (which previously had a
balance of $27,839.53), a total of $199,000 was transferred from the STIF account
to the PCC account. This money helped Mayo pay expenses and interest to other
investors including: (1) $63,000 that went to Mayo’s personal accounts,
(2) $25,000 toward a premature balloon payment on property he purchased from
William Welch, which appeared to be used as both an office and residence, and
(3) $100,000 transferred to another corporate account for which Mayo was the only
authorized agent. Mayo also used some of the money in the STIF account to make
interest payments to other investors.
There is also sufficient evidence for the jury to find that Mayo caused the
6
mailing of the copy of the check to Robert Peck by directing Lori Mayo, who
worked as an office manager/bookkeeper, to do so. Although Lori Mayo appeared
to do the actual mailing, Robert Peck requested the check from Mayo. In the days
before sending the check, Mayo told Robert Peck that he would send the check by
fax and Federal Express.
In order to find that the mailing of the copy of the check was in furtherance
of the scheme to defraud STIF investors, the jury would have to infer that the
mailing was intended to lull the investors into a false sense of security regarding
these investments. To reach this inference, the jury could find that Mayo knew that
the check was fraudulent and that he had previously tried to cast suspicion away
from himself. As evidence of Mayo’s knowledge, he made multiple statements
that the check had cleared the PCC account and claimed to have a copy of the bank
statement. He also made multiple statements casting suspicion on Lincoln Trust.
The jury could also infer such knowledge based on: (1) the length of time during
which Mayo insisted that the check had cleared the PCC account, particularly as
Mayo continued to insist that the check had cleared the account despite evidence
that he had in his possession two different versions of the check,4 (2) Mayo’s
4
Copies of the copy of the check mailed to Robert Peck and the check photocopied by
David Peck were admitted into evidence. Although the front of both copies appears to be
identical, the back of the checks are not — the “Bob Peck” endorsement is different, and the
bank stamps are in different locations. Based on the date on the fax, Robert Peck faxed his copy
7
statement that he brought the check to NationsBank and was told that it did not
clear the NationsBank account, as NationsBank became Bank of America in 1998,
and the check was a NationsBank/Bank of America check, and (3) Mayo’s
statement that the check may have cleared a different account when he was
confronted with evidence that it never cleared the PCC account, as he had
previously claimed. The jury could also disbelieve Mayo’s statements to the effect
that he did not forge the check, and, thereby, infer that the opposite was true. See
United States v. Hasner, 340 F.3d 1261, 1272 (11th Cir. 2003) (holding that a jury
can disbelieve a witness and infer that the opposite of his testimony is true).
It follows that the jury could reasonably infer that Mayo’s intent in
providing Robert Peck with a copy of the canceled check was to make him believe
that PCC had issued a check for his investment principal and to induce him to
investigate other reasons for the missing funds, thereby diverting suspicion that
Mayo was engaged in any wrongdoing. Both of the Pecks were involved in
investigating this check. If either of them questioned the propriety of Mayo’s
handling of Robert Peck’s PCC investment, it is logical that they would also
question Mayo’s handling of their STIF investments. Therefore, the jury could
of the check back to Mayo on February 16, 2001. When Mayo met with David Peck on
February 22, 2001, David copied the other version of the check. Mayo continued to insist that
the check had cleared the PCC account into April 2001.
8
reasonably infer that, in seeking to allay suspicions regarding Robert Peck’s PCC
investment, Mayo also intended to lull the Pecks into a false sense of security
regarding their STIF investments. Accordingly, there is sufficient evidence to
support Mayo’s conviction for mail fraud.
As to his forgery conviction, Mayo does not challenge the sufficiency of the
evidence that the check was a forged security of an organization, but argues that
the evidence was not sufficient to establish his responsibility for the forgery or his
intent to deceive.
Whoever makes, utters or possesses a counterfeited security of a State
or a political subdivision thereof or of an organization, or whoever
makes, utters or possesses a forged security of a State or political
subdivision thereof or of an organization, with intent to deceive
another person, organization, or government shall be fined under this
title or imprisoned for not more than ten years, or both.
18 U.S.C. § 513(a). Thus, there must be sufficient evidence that Mayo: (1) made,
uttered, or possessed; (2) a forged security; (3) of an organization; (4) with intent
to deceive another person, organization, or government. Id. § 513(a). Only the
first and fourth elements are challenged on appeal.
There is sufficient evidence to allow the jury to infer that Mayo made the
forgery with the intent to deceive. For the reasons that the jury could find that
Mayo knew that the check was fraudulent discussed above, the jury could also find
that Mayo perpetrated the forgery. The jury could also disbelieve Mayo’s
9
statements to the effect that he did not forge the check, and, thereby, infer that the
opposite was true. Hasner, 340 F.3d at 1272. Furthermore, because Mayo was
president of PCC and Lori Mayo was a subordinate, the jury could also infer that
he directed Lori Mayo to fill out the check. Despite Mayo’s candor with the Pecks
regarding his suspicions as to the check, the jury could also reasonably infer
Mayo’s intent to deceive as he made multiple statements casting suspicion on
Lincoln Trust. This would support an inference that Mayo intended to deceive the
Pecks into believing that he had, in fact, issued the check.
In light of the foregoing, we conclude that Mayo’s convictions for mail fraud
and forgery are supported by sufficient evidence. We, therefore, affirm.
AFFIRMED.
10