USCA11 Case: 22-10783 Document: 39-1 Date Filed: 09/22/2023 Page: 1 of 16
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10783
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELVIN I. LEWIS, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60034-RKA-1
____________________
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2 Opinion of the Court 22-10783
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
A grand jury in the Southern District of Florida indicted
Elvin Lewis for one count of conspiracy to commit money laun-
dering, in violation of
18 U.S.C. § 1956(h), and ten counts of the
substantive offense of money laundering, in violation of
18 U.S.C.
§ 1956(a)(1)(B)(i). The charges stemmed from his role in a “busi-
ness email compromise” scheme (BEC).1
Mr. Lewis pled not guilty, and the case proceeded to trial.
The government’s theory of the case was that (1) Mr. Lewis re-
ceived money from businesses which received fraudulent emails as
part of the BEC scheme; (2) Mr. Lewis would then transfer the
funds between his own bank accounts and that of his accomplice,
and finally to an account overseas; and (3) Mr. Lewis did so as part
of a conspiracy to launder the fraudulently obtained funds for an
unknown individual in China, while keeping a percentage of the
funds as payment for his role.
Through witness testimony and voluminous documentary
evidence—such as business records from the victim business,
phone records demonstrating communications between Mr. Lewis
and his co-conspirators, and bank records showing the transfer of
1 A business email compromise scheme is one where scammers hack into the
employee emails of a legitimate company to cause the unauthorized transfer
of funds or the disclosure of confidential information.
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22-10783 Opinion of the Court 3
funds to and from Mr. Lewis’ accounts and to his co-conspirator’s
accounts—the government presented evidence of the BEC scheme
and Mr. Lewis’ involvement. The government also introduced sev-
eral summary charts depicting key events in the BEC scheme and
the money laundering conspiracy.
After a 5-day trial, the jury found Mr. Lewis guilty on all
counts. The district court sentenced him to 151 months of impris-
onment, at the top of the applicable advisory guideline range.
Mr. Lewis now appeals his convictions and sentence. He ar-
gues that the district court plainly erred by admitting the govern-
ment’s summary exhibits and by failing to provide limiting instruc-
tions to the jury regarding their use. He also argues that the district
court imposed a substantively unreasonable sentence when it con-
sidered his lack of remorse in determining his sentence. After re-
viewing the parties’ briefs and the record, we affirm.
I
We first address Mr. Lewis’ arguments that the admission of
the government’s summary exhibits and the district court’s failure
to provide limiting instructions as to their use constituted reversible
error. Because Mr. Lewis did not object to the admissibility of the
exhibits or the jury instructions at trial, we review both of his chal-
lenges for plain error. See United States v. Hawkins,
934 F.3d 1251,
1264 (11th Cir. 2019) (failure to object to the admissibility of evi-
dence resulted in plain error review); United States v. Iriele,
977 F.3d
1155, 1177 (11th Cir. 2020) (failure to object to jury instructions re-
sulted in plain error review). We will only reverse for plain error if
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4 Opinion of the Court 22-10783
Mr. Lewis can first show that the district court committed error
that was plain and that affected his substantial rights. See Hawkins,
934 F.3d at 1264.
II
Under Federal Rule of Evidence 1006, a party “may use a
summary, chart, or calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be conveniently
examined in court.” Summary evidence is generally permitted,
and it is within the district court’s discretion to admit summary ev-
idence at trial. See United States v. Richardson,
233 F.3d 1285, 1293
(11th Cir. 2000). Nevertheless, the district courts must ensure that
a defendant “is not unjustly convicted in a trial by charts.”
Id. (in-
ternal quotation marks omitted).
Summary evidence need not “be free from reliance on any
assumptions.” See
id. at 1294 (quoting United States v. Diez,
515 F.2d
892, 905 (5th Cir.1975)). Instead, district courts have wide discre-
tion to admit summary evidence incorporating certain assump-
tions so long as there is evidence in the record to support them, the
supporting evidence has been previously presented to the jury, and
the district court makes clear “that the ultimate decision should be
made by the jury as to what weight should be given to the evi-
dence.” See
id. (internal quotation marks omitted).
A
At trial, the government introduced various flow charts that
summarized key aspects of the BEC scheme and the money laun-
dering conspiracy. The charts in large part diagramed (1) the flow
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22-10783 Opinion of the Court 5
of funds from the company victims to accounts controlled by Mr.
Lewis and his co-conspirators; (2) the types of transactions made
in Mr. Lewis’ accounts and the dollar amounts and percentages
composing each type of transaction; and (3) relevant timelines
chronicling (a) communications between the company victims and
the BEC scammers, (b) the wire transfers sent from the company
victims to Mr. Lewis’ account, (c) communications between Mr.
Lewis and his co-conspirators, and (d) other key information, such
as when Mr. Lewis opened and closed the accounts linked to the
conspiracy and the number of text messages exchanged between
Mr. Lewis and his co-conspirators.
On appeal, Mr. Lewis argues that the summary charts were
improperly admitted under Rule 1006 because they contained
“markings, headers, highlights, and legal conclusions” that were
not in the original business records. See Appellant’s Br. at 15–16.
He also challenges the government’s use of descriptive labels “BEC
Victim Payments” and “Summary of Fraudulent Emails.” See
id. at
9, 12. His arguments fail, however, because he has not shown plain
error. 2
2 Mr. Lewis purports to challenge the admissibility of many of the govern-
ment’s non-summary exhibits. One of the exhibits consists of a demonstrative
aid that was not used as evidence at trial and the others largely consist of orig-
inal records or composite exhibits containing extracts from original records.
But he has only challenged the government’s exhibits on the ground that they
constituted improper summary evidence under Rule 1006. These other exhib-
its do not constitute “chart[s], summar[ies], or calculation[s]” of other evi-
dence, as contemplated by Rule 1006. Because Mr. Lewis has not properly
raised the issue of whether the district court plainly erred by admitting the
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6 Opinion of the Court 22-10783
B
As an initial matter, we reject Mr. Lewis’ contention that
Rule 1006 requires that the summary evidence be “unaltered” and
thus free from any highlighting or notations “not in the original
records.” See Appellant’s Br. at 15–17. The plain terms of Rule 1006
do not impose this requirement, nor does Mr. Lewis cite to any case
law indicating any such requirement. See generally Fed. R. Evid.
1006. We therefore see no plain error in the district court admitting
summary exhibits on the basis that they contained yellow high-
lighting, bolding, and other markings not in the original records.
See United States v. Innocent,
977 F.3d 1077, 1081 (11th Cir. 2020) (“An
error is plain if . . . the explicit language of a statute or rule or prec-
edent from the Supreme Court or this Court directly resolv[es] the
issue.”) (internal quotation marks and citations omitted) (alteration
in original).
We also conclude that the district court did not plainly err
by admitting the disputed charts because they were admitted in
conformity with Richardson, 233 F.3d at 1294.
First, the information contained in the charts was derived di-
rectly from the original records admitted at trial. The record shows
that the government introduced—without objection from Mr.
non-summary exhibits, he has abandoned any challenges as to those exhibits.
See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014) (“We
have long held that an appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting
arguments and authority.”).
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22-10783 Opinion of the Court 7
Lewis—correspondence from the victim companies showing the
fraudulent wire requests; financial records showing the wire trans-
fers made from the companies to Mr. Lewis’ account and from his
account to accounts controlled by his co-conspirators; bank state-
ments detailing the transactional activities in Mr. Lewis’ accounts
during the relevant time period; and extensive phone records, in-
cluding texts and WhatsApp messages between Mr. Lewis and his
co-conspirators discussing details of the money laundering conspir-
acy. This evidence formed the basis of the summary charts. See,
e.g., D.E. 146 at 159–61 (government expert identifying the bank
records already admitted in evidence that he reviewed to create
summary charts showing flow of funds);
id. at 266–67 (government
agent confirming that he prepared summary charts from infor-
mation captured in Mr. Lewis’ WhatsApp pen register, which was
admitted into evidence).
Second, the two descriptive labels were supported by evi-
dence previously presented to the jury. Before the government in-
troduced the charts with the labels “BEC Victim Payments”—used
to describe the wire transfers that the companies made to Mr.
Lewis’ account—and “Summary of Fraudulent Emails”—used to
describe a summary timeline of the BEC scheme—the government
introduced the underlying email communications and bank rec-
ords on which the charts and labels were based.
Third, the jury heard testimony from witnesses representing
the injured companies who testified to being victims of the BEC
scheme. Their testimony included discussions of the contents of
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8 Opinion of the Court 22-10783
the fraudulent emails, the company servers that were hacked to
send the fraudulent emails, and the payments that were unknow-
ingly sent to Mr. Lewis’ account. This testimony—which the jury
heard before the charts were discussed—amply supports the use of
the labels “BEC Victim Payments” and “Summary of Fraudulent
Emails.”
Finally, the jury was generally instructed on the weight to
give the summary evidence. At the beginning of the trial, the dis-
trict court instructed the jury to “give every piece of evidence
whatever weight you think it deserves.” See D.E. 143 at 173. It later
instructed the jury at the close of arguments that it may use the
government summary charts as evidence and that, though it “must
consider all the evidence,” it did not need to accept “all the evi-
dence as true or accurate.” See D.E. 147 at 84, 86. These instruc-
tions are consistent with the teachings of Richardson “that the ulti-
mate decision should be made by the jury as to what weight should
be given to the evidence.” See Richardson, 233 F.3d at 1293.
C
Mr. Lewis contends that the district court’s instructions were
insufficient because they failed to provide any limitations on how
the jury should assess the summary charts. In support, he relies on
Richardson and an unpublished case, United States v. Osborne,
677
Fed. Appx. 648 (11th Cir. 2014), and notes that in those cases, the
district court both admitted the government’s summary charts and
gave limiting instructions to the jury regarding their use. He
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22-10783 Opinion of the Court 9
argues, therefore, that the district court erred in admitting the sum-
mary charts here because it failed to follow the same procedure.
We are unpersuaded for two reasons. First, in both cases,
the defendants objected to the summary exhibits, which Mr. Lewis
did not do here. See Richardson, 233 F.3d at 1293; Osborne, 677 Fed.
Appx. at 656. Second, under Richardson the district court is only
required to instruct the jury that the decision as to what weight to
give the summary evidence is theirs to make. See Richardson, 233
F.3d at 1293. The district court did that here when it charged the
jury to “give every piece of evidence whatever weight you think it
deserves”—“every piece of evidence” necessarily includes the gov-
ernment’s summary charts. See D.E. 143 at 173. Mr. Lewis’ chal-
lenge with respect to the jury instructions therefore fails under
plain error review.
D
Even if we were to conclude that the summary evidence was
improperly admitted, Mr. Lewis has failed to demonstrate how he
was prejudiced by the error.
Mr. Lewis argues that because he was unable to “cross ex-
amine the charts nor contest the conclusions contained and/or im-
plied in them” the admission of the charts violated his Sixth
Amendment right to confront the witnesses against him. See Ap-
pellant’s Br. at 19. His argument is misguided.
The summary charts were created from non-testimonial
records and therefore do not implicate the Confrontation Clause
of the Sixth Amendment. See Crawford v. Washington,
541 U.S. 36,
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10 Opinion of the Court 22-10783
56 (2004) (noting that business records are not testimonial); United
States v. Naranjo,
634 F.3d 1198, 1214 (11th Cir. 2011) (“Summary
evidence also is not testimonial if the evidence underlying the sum-
mary is not testimonial.”). In addition, Mr. Lewis had the oppor-
tunity to object to the underlying records, to cross-examine the wit-
nesses who created the summary charts, and to contest any labels
or conclusion contained in the charts. The likelihood of any error
was therefore reduced. See Richardson, 233 F.3d at 129 (“[W]here
the defense has the opportunity to cross-examine a witness con-
cerning the disputed issue and to present its own version of the
case, the likelihood of any error in admitting summary evidence
diminishes.”) (internal quotation marks omitted).
Further, Mr. Lewis cannot otherwise show that he was prej-
udiced by the labels “BEC Victim Payments” and “Summary of
Fraudulent Emails” because he at no point disputed the conclu-
sions underlying them. Specifically, he did not dispute that certain
companies were tricked into wiring funds to his account as part of
the BEC scheme nor that certain company emails were compro-
mised in order to redivert funds to his account. Rather, from the
outset of the trial, his counsel told the jury that Mr. Lewis did “not
disput[e] any of the evidence” that the government had as to the
existence of the BEC scheme and that he agreed that “a crime ha[d]
been committed.” See D.E. 143 at 198. He further conceded that
the government had “mountains of evidence” proving the BEC
scam, and only disputed that he had “any knowledge of th[e]
scam.” See id. at 198–99.
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22-10783 Opinion of the Court 11
Because Mr. Lewis has failed to show plain error as to the
admissibility of the summary charts or the district court’s instruc-
tions regarding their use, we affirm the admission of the disputed
charts into evidence.
III
We next address Mr. Lewis’ argument that the district court
erred when it considered his lack of remorse in fashioning his sen-
tence. 3
A
We review a sentence for reasonableness under an abuse of
discretion standard, considering the totality of the circumstances.
See Irey, 612 F.3d at 1189. “We ordinarily expect a sentence within
the [advisory] Guidelines range to be reasonable, and the party
challenging the sentence bears the burden of establishing that the
sentence is unreasonable according to the facts of the case and the
§ 3553(a) factors. See United States v. Gonzalez,
550 F.3d 1319, 1324
(11th Cir. 2008).
A district court abuses its discretion and imposes a substan-
tively unreasonable sentence when it “(1) fails to afford
3 Mr. Lewis does not specify whether he challenges the procedural or substan-
tive reasonableness of his sentence. We construe his argument that the district
court improperly considered his lack of remorse when imposing his sentence
as a challenge to the substantive reasonableness of his sentence. See United
States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (providing that a
sentence is substantively unreasonable, in part, if the district court “gives sig-
nificant weight to an improper or irrelevant factor”).
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12 Opinion of the Court 22-10783
consideration to relevant [§ 3553(a)] factors that were due signifi-
cant weight, (2) gives significant weight to an improper or irrele-
vant factor, or (3) commits a clear error of judgment in considering
the proper factors.” Irey,
612 F.3d at 1189 (internal quotation marks
and citation omitted). We will vacate a defendant’s sentence as sub-
stantively unreasonable only if we are “left with the definite and
firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the
facts of the case.” United States v. Goldman,
953 F.3d 1213, 1222 (11th
Cir. 2020) (internal quotation marks omitted).
B
Based on a criminal history category of II and a total offense
level of 31, the district court computed Mr. Lewis’ advisory guide-
line range at 121 to 151 months. At the sentencing hearing, the
government requested a sentence at the high end of the advisory
guideline range. The district court agreed and sentenced Mr. Lewis
to 151 months of imprisonment.
Before imposing the sentence, however, the district court
discussed in great length the §3553(a) factors. It addressed—with
much specificity—(1) “the nature and severity of the offense,” (2)
Mr. Lewis’ “history and characteristics,” (3) “the need to provide
specific deterrence to [Mr. Lewis] and to protect the public from
future crimes that he may commit,” (4) “the need to provide ade-
quate general deterrence,” (5) “the need “to promote[] respect for
the law and provide[] just punishment for the offense,” and (6) “the
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22-10783 Opinion of the Court 13
need to avoid unwarranted sentencing disparities.” See D.E. 278 at
87–94.
As relevant here, when discussing the last factor—the need
to avoid unwarranted sentencing disparities—the district court
considered Mr. Lewis’ lack of remorse. It remarked that though
one of his co-conspirators, Vanna Clay, had received an immunity
deal from the government, that did not necessarily mean that Mr.
Lewis should similarly receive a more lenient treatment. See id. at
93. Unlike Ms. Clay—who, the district court noted, “accept[ed] re-
sponsibility” and “cooperate[d] with the government”—Mr. Lewis
had shown “no contrition, no remorse, and no acceptance of re-
sponsibility, [or given] any kind of cooperation the way that Ms.
Clay provided” to support a sentence “towards the low end of the
guideline range.” See id. In describing Mr. Lewis’ lack of remorse
the district court further stated:
Mr. Lewis has shown absolutely no contrition. Mr.
Lewis has never apologized to the victims. Mr. Lewis
has never accepted responsibility. And Mr. Lewis has
done just the opposite. In his repeated and, frankly,
frivolous motions to this Court, Mr. Lewis has called
the Court a racist . . . has tried to blame everyone else
but himself for the victimization that took place in
this case . . . [which] shows that Mr. Lewis hasn’t ac-
cepted responsibility for what he’s done, even today.
Id. 93–94.
Mr. Lewis’ counsel objected to the district court’s com-
ments, stating that “Mr. Lewis . . . genuinely maintain[ed] his
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14 Opinion of the Court 22-10783
innocence,” which would explain “his apparent lack of remorse
and lack of cooperation.” See id. at 97. In response, the district
court reiterated that it had only considered Mr. Lewis’ lack of re-
morse when weighing the need to avoid unwarranted sentencing
disparities:
[W]ith respect to Mr. Lewis’ level of contrition . . .
you’ll note that I didn’t mention any of that in my
analysis of the first five 3553(a) factors. I didn’t con-
sider that at all in considering the nature and severity
of the offense, the history and characteristics of the
defendant, the need to provide specific deterrence to
the defendant, the need to provide general deterrence
to the community, or the need to provide just punish-
ment for the offense, or promote respect for the law .
. .My only point was, with respect to disparity in sen-
tencing . . . I find nothing disparate or unfair about
the way he’s treated, if only because all of the other[]
[defendant’s convicted of money laundering in this
court] have pled guilty and most of them have coop-
erated . . . And so it’s just not fair to treat Mr. Lewis
the same as those other people, who, of course, took
a plea, got three points off, will get low end or lower,
and will get a 5K or Rule 35 for their cooperation
against the other people in the scheme. That’s not
because Mr. Lewis shouldn’t be allowed to promote
his innocence. It’s only to say that those people . . .
should receive a significant benefit . . . and that’s why
I think they’re being treated differently than Mr.
Lewis.
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22-10783 Opinion of the Court 15
It was also said in the context of Ms. Clay, who, as I
made clear, received a very good deal from the U.S.
government . . . [T]here were factors at play in Ms.
Clay’s case that may have led the government to make
that determination, some of which [include,] her ac-
ceptance of responsibility, her turning her family
members in, and . . . her cooperating against Mr.
Lewis . . . None of that is to say that Mr. Lewis doesn’t
have a right to plead his innocence or to go to trial.
It’s all in the way of trying to explain why Mr. Lewis
is receiving a higher sentence than other money laun-
derers who pled guilty, cooperated, and received a
benefit.
Id. at 98–99.
C
Mr. Lewis argues that the district court erred when it con-
sidered his lack of remorse when determining his sentence. As a
result, it “punished” him for exercising his constitutional right to
go to trial by imposing a more severe sentence, at the top of the
applicable advisory guideline range. See Appellant’s Br. at 20–21.
But Mr. Lewis is mistaken on the law and misconstrues the record.
First, the district court’s consideration of Mr. Lewis’ lack of
remorse was not improper. Contrary to Mr. Lewis’ contention, “[a]
district court is permitted to consider lack of remorse in its §
3553(a) analysis as to several factors,” including “the characteristics
of a defendant, the need to promote respect for the law, and the
need to protect society.” United States v. McNair,
605 F.3d 1152, 1231
(11th Cir. 2010). And we have held that a sentence is not
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16 Opinion of the Court 22-10783
unreasonable because the district court considers a defendant’s lack
of remorse—despite the defendant maintaining his innocence—
when fashioning a sentence. See United States v. Mateos,
623 F.3d
1350, 1367 (11th Cir. 2010). In Mateos, for example, we held that
“[i]t was reasonable for the district court to consider” a defendant’s
lack of remorse to differentiate between the defendant’s sentence
and “those of her coconspirators . . . whom accepted responsibility,
pleaded guilty, and cooperated.”
Id. We see no difference in what
the district court did here.
Second, the district court made clear at sentencing that it
was not considering Mr. Lewis’ lack of remorse to penalize him for
going to trial. It specifically stated that Mr. Lewis was “allowed to
promote his innocence,” and that its determination to sentence
him at the top end of the advisory guideline range was not because
“Mr. Lewis d[idn]’t have a right to plead his innocence or to go to
trial,” but only to distinguish Mr. Lewis from others who had “pled
guilty” and “cooperated” with the government, like Ms. Clay in this
case. See D.E. 278 at 98–99. Therefore, Mr. Lewis’ claim that he
was punished for going to trial belies the record.
IV
We affirm Mr. Lewis’ convictions and sentence.
AFFIRMED.
