Jose Maiz v. Amir Virani

Jose MAIZ, Oziel Garza, et al., Plaintiffs-Counter-Defendants-Appellees,
v.
Amir VIRANI, Atlanta Associates, Inc., et al., Defendants-Counter-Plaintiffs-Appellants.
No. 99-14962.
United States Court of Appeals,
Eleventh Circuit.
June 8, 2001.
Appeal from the United States District Court for the Northern District of Georgia. (No. 97-01742-CV-TWT-
1), Thomas W. Thrash, Judge.
Before ANDERSON, Chief Judge, and MARCUS and KRAVITCH, Circuit Judges.
MARCUS, Circuit Judge:
Defendants Amir Virani, Ignacio Santos, and three companies affiliated with them appeal the district
court's entry of an $18 million judgment against them on Plaintiffs' civil RICO claim. Plaintiffs, who are
Mexican citizens, allege that Defendants solicited their investment in a Georgia real estate venture, only to
defraud them by taking hidden profits on land sales, claiming unauthorized expense reimbursements and
commissions on real estate transactions, and using Plaintiffs' contributions to pay for the defense of this
lawsuit. A jury returned a verdict in Plaintiffs' favor. On appeal, Defendants raise multiple objections, many
but not all of which relate to damages. Notably, Defendants do not argue that there was insufficient evidence
to support the liability verdict as a whole, although they do challenge the entitlement of certain Plaintiffs to
recover on certain claims. After a thorough review of the record and the parties' arguments, we find no
reversible error, and therefore affirm the judgment.
I.
We start by summarizing the key facts of this case and the evidence produced by the Plaintiffs upon
which the jury based its verdict. Plaintiffs are 53 residents of Monterrey, Mexico; most of them are members
of fourteen family groups. Also plaintiffs in this case (although not participants in this appeal) are six
corporations to which the individual Plaintiffs eventually transferred their interests.1 Defendants include
several individuals—Amir Virani, Ignacio Santos, Rodrigo Gonzalez, and Rodrigo Padilla—and several
companies—Atlanta Associates, Inc. ("AA"), Signa Development Corp. ("Signa"), Sanvir Development, Inc.
1
Unless otherwise noted, when we speak of "Plaintiffs" in this opinion, we refer only to the individual
Plaintiffs.
("Sanvir"), Savoy Properties, Inc. ("Savoy"), and Sanig Investments, Ltd. ("Sanig"). Virani and Santos
control AA, Signa, and Sanvir.2
This lawsuit arises out of Plaintiffs' participation in transactions orchestrated by Virani and Santos
for the ostensible purpose of acquiring, developing, and then re-selling real estate near Atlanta, Georgia. By
the late 1980s, AA and Signa began acquiring and assembling six tracts of undeveloped real estate in Georgia.
In 1988 and 1989, Plaintiffs become investor-partners in six new Georgia general partnerships meant to
develop the tracts. Precisely how Plaintiffs came to be investors was a subject of dispute at trial. Plaintiffs
contend that Santos and Virani hired a Monterrey brokerage firm, Abaco Casa de Bolsa ("Abaco"), to assist
Defendants in soliciting Mexican partners to invest in the partnerships. There is no dispute that Virani and
Santos agreed to pay Abaco a commission equal to five percent of the amount raised from investors, plus an
additional 20 percent of the net profits when the partnerships eventually sold the properties. Plaintiffs also
allege that Abaco brokers told them that Abaco was representing Santos and Virani.3
In soliciting the Plaintiffs, Abaco presented a brochure describing each partnership. The brochures
were prepared by Virani and Santos for distribution by Abaco. Each brochure represented that Defendants
would receive no compensation until the investor-partners recovered their investments plus the equivalent
of twelve percent interest per year. Various Plaintiffs were brought to Georgia to view the properties and to
receive a sales pitch from Virani or Santos; Virani and Santos also met with prospective partners in
Monterrey. Among the promises allegedly made in the brochures and marketing meetings, besides the
promise of no "up-front" compensation, were that Santos and Virani would be investing their own cash and
would be partners in the partnerships, and that the properties being assembled were to be acquired for the
partnerships in arms-length transactions involving unrelated third parties.
2
The district court granted summary judgment in Defendants' favor as to all claims against Gonzalez,
Padilla, Savoy, and Sanig; hence, those parties are not participants in this appeal. The propriety of this
summary judgment ruling is the subject of a separate appeal by the Plaintiffs, and we offer no view today
on that ruling.
3
Defendants argued to the jury, and assert summarily on appeal, that throughout the scheme Abaco
was acting solely as an agent for the Plaintiffs, not the Defendants. Plaintiffs, however, introduced
substantial evidence that Abaco served as Defendants' agent in soliciting them to invest funds in the
partnerships, and also served as a conduit for information from the Defendants regarding the venture. The
district court instructed the jury regarding the parties' differing views of Abaco's role, and set forth the
relevant law governing principal-agent relationships. The jury necessarily accepted Plaintiffs' version of
the relationship between Defendants and Abaco, and Defendants completely fail to establish that, as a
matter of law, Abaco could not be deemed their agent. Indeed, Defendants never marshal the evidence
and authority that they apparently believe compel a contrary conclusion.
The six partnerships were ultimately formed in 1989. Partnership interests were awarded based on
the partners' individual capital contributions. The six Partnership Agreements, which are virtually identical,
named Sanvir as managing partner; Sanvir was also awarded a 1% interest in each partnership. Sanvir,
Sanig, and Savoy—all controlled by Virani and Santos—eventually owned 10-20% of each partnership;
Virani, Santos, AA, and Signa were never direct partners in any of the partnerships (notwithstanding Virani's
and Santos's promise that they would be partners). Sanvir signed a Management Agreement with AA
whereby AA would perform the duties of the managing partner in exchange for the profits due to Sanvir
under the Partnership Agreements; the Management Agreements are virtually identical for each partnership.
Between March 1988 and December 1989, the investing partners contributed $16.9 million toward
the six partnerships; of that, $6,738,950 came from the Plaintiffs. Over time, Plaintiffs contributed an
additional $3,248,406, bringing their total contribution to just under $10 million. In some instances, Abaco
advanced the funds necessary to meet capital calls to investors; some, but not all, of those advances were
repaid.
Plaintiffs allege four distinct types of wrongdoing by the Defendants in connection with these
ventures. The first type of misconduct (the "land price fraud") relates to the partnerships' early days in 1988-
89; the other three types of misconduct extended into the 1990s, although the bulk of the harm was inflicted
early in that decade.
The land price fraud relates to how the advertised tracts of land came into the ownership of the
partnerships. According to Plaintiffs, the partnerships did not acquire the relevant properties in arms-length
transactions from unrelated third parties. Instead, Santos and Virani would use investor funds to take title
to each property in the name of one of their companies (AA or Signa), and then transfer the property to the
appropriate partnership at a different and inflated price (up to three times what Santos and Virani actually
paid). The inflated prices were reported to the investors as the cost of the properties, with no disclosure of
the initial transactions. Plaintiffs' expert put the total unauthorized profit to Defendants from these
transactions at approximately $10 million. In addition to that alleged wrongdoing, Santos's and Virani's
companies had promised to contribute $2.4 million of their own money as a share of the partnerships' initial
capital, but in fact contributed only $144,600, to just one of the six partnerships.
Plaintiffs alleged that Defendants took elaborate steps to conceal their land price fraud, altering the
partnerships' books and records and distributing false status reports. Plaintiffs also alleged that Defendants
used the mail and the telephone wires in furtherance of the fraud, and also engaged in money laundering to
conceal their so-called "secret profits." Among other things, Defendants allegedly wrote bogus receipts with
the assistance of Padilla and Gonzalez suggesting that companies affiliated with Defendants had performed
services for the partnerships, when in fact no such services had been performed.
The second type of fraud allegedly perpetrated by Defendants related to their taking of
"reimbursement" payments for actual and made-up expenses relating to the operation of the partnerships.
Among other things, partnership funds were allocated to Defendants under the guise of "general overhead"
as well as salary to Virani. Plaintiffs claim that these payments were concealed from them, and violated the
relevant agreements.
The third type of alleged fraud concerned the Defendants' taking as "brokerage commissions"
approximately 10% of the income received from the partnerships' eventual property sales. These
commissions were generally described on the partnerships' records as going to a real estate broker named
Peggy Weiss; Weiss, however, never received the checks, which were instead endorsed by Virani and
deposited in Defendants' bank accounts. Virani allegedly paid Weiss $750 per month to use her name on the
commission checks. These arrangements were neither authorized nor disclosed, according to Plaintiffs. All
told, Virani paid himself and AA $1.2 million in commissions.
Finally, the fourth type of fraud concerned the Defendants' use of partnership funds to pay for fees
and costs relating to this lawsuit, which began in June 1997. Defendants used partnership funds to cover their
own expenses as well as the fees of counsel. This practice was disclosed only during a deposition midway
through the lawsuit. Plaintiffs say that they never consented to such a use of their contributions, and that
Defendants have never returned any of the money siphoned off for use in this litigation. Defendants
apparently claimed reliance on several opinions of counsel to the effect that they did not need to seek the
consent of the partners, and that they had at least the potential of indemnification if they ultimately prevailed
in the case.
At trial, Plaintiffs' damages expert, Dr. Stephen Silberman, calculated the total amount lost by the
Plaintiffs individually and collectively for each of the four types of fraud. Total "out-of-pocket" losses were
put at approximately $4.3 million for the land fraud (reflecting the money that should have remained with
the partnerships if the land had been purchased at arms-length prices); $1 million for the expenses fraud;
$400,00 for the commissions fraud; and $337,000 for the attorneys' fees fraud. Silberman also calculated
"lost value" damages reflecting the amount of money that each Plaintiff would have earned if the funds taken
by Defendants pursuant to each type of fraud had been available for investment in U.S. real estate as Plaintiffs
intended.4
II.
Plaintiffs filed their complaint in June 1997, seeking relief under multiple theories, including civil
RICO, 18 U.S.C. § 1964, as well as fraud, breach of fiduciary duty, breach of contract, constructive trust, and
accounting under Georgia law. Defendants filed counterclaims plus a third-party complaint against Abaco.5
On March 4, 1999, the district court granted partial summary judgment in Defendants' favor on all claims
against Padilla, Gonzalez, Savoy, and Sanig. It also granted summary judgment in favor of the remaining
Defendants—Virani, Santos, AA, Signa, and Sanvir—on Plaintiffs' claims for breach of contract, conversion,
constructive trust, and participation in breach of fiduciary duty. Finally, the court granted summary judgment
against 15 Plaintiffs on their fraud claims.
The case proceeded to trial on three of Plaintiffs' theories: RICO, fraud, and breach of fiduciary duty.
Plaintiffs cited seven predicate acts for their RICO claim, including money laundering, mail and wire fraud,
receiving stolen funds, using interstate travel facilities to launder money, transporting persons for purposes
of fraud, and transporting funds taken by fraud. At several points during trial, Defendants moved
unsuccessfully for judgment as a matter of law.
After four weeks of trial, the jury rendered a verdict on October 8, 1999, in favor of the each of the
Plaintiffs on all three theories of liability. The verdict form asked the jury to state the amount of damages
to be recovered by each Plaintiff on each theory. The verdict form did not differentiate between out-of-pocket
damages and the lost value damages discussed by Plaintiffs' expert. The amount awarded to each Plaintiff
varied, but the amount awarded to each Plaintiff on his or her RICO claim was always identical to the amount
awarded on his or her breach of fiduciary duty and fraud claims. The total amount of damages awarded by
the jury was $6,078,000. Each Plaintiff also received exemplary damages on the fraud and/or breach of
fiduciary duty claims (but not the RICO claim). The exemplary damages totaled $2,691,000. No motion for
new trial was made.
After the verdict Plaintiffs elected to have judgment entered on the RICO claim alone. The district
court then trebled the damages in accordance with RICO, and ultimately entered a total judgment of
4
Silberman did not offer an opinion regarding what specific amount of each individual Plaintiff's
out-of-pocket or lost value damages could be attributed to which type of fraud.
5
Those claims were later dismissed, in a ruling which has not been appealed.
$18,234,000 against the remaining Defendants (Virani, Santos, AA, Signa, and Sanvir) and in favor of the
individual Plaintiffs. The district court subsequently dismissed the corporate Plaintiffs' claim for an
accounting, based primarily on the assumption that the individual Plaintiffs had already recovered damages
for harm suffered also by the corporations.
Judgment enforcement proceedings are currently underway in the Northern District of Texas. Virani
claimed bankruptcy in that district; on May 15, 2000, however, the bankruptcy court lifted the automatic stay
of 11 U.S.C. § 362 for purposes of this appeal. Meanwhile, according to Plaintiffs, Santos has refused to
surrender to an arrest warrant for civil contempt issued by the district court in Texas. The warrant was issued
after the district court held Santos in contempt for deliberately failing to turn over assets to a receiver
appointed to aid in the collection process.6
III.
Defendants raise ten issues for our review. Although none of these objections has merit, one may
be dealt with summarily. Defendants assert that the district court improperly failed to provide the jury with
a verdict form that would have asked the jury to break down for each Plaintiff the amount of recovery
attributable to each of the four categories of wrongdoing (e.g., the land price fraud, commissions, expenses,
and legal fees). Accordingly, say the Defendants, if we were to conclude that the district court erred in its
handling of even one of the four categories of wrongdoing, then we would have to vacate the entire verdict
and remand for a new trial on damages.7 Because—as discussed below—we find no reversible error in the
district court's handling of those or any other issues, Defendants' concern is unfounded.
A.
We first address the question of standing. Defendants contend that the district court erred by failing
to enter judgment as a matter of law against the Plaintiffs with respect to their claims for damages based upon
wrongdoing after December 1991, because they lacked RICO standing as to those claims. Defendants also
say that we must order a new trial on damages because the jury's verdict did not distinguish between pre-and
6
Plaintiffs have moved to dismiss Santos's appeal under the fugitive disentitlement doctrine. Because
we affirm the judgment, we deny that motion as moot.
7
A district court's decisions regarding the submission of a verdict form, and the contents of such a
form if given, are reviewed with great deference. See, e.g., Davis v. Ford Motor Co., 128 F.3d 631, 633
(8th Cir.1997). There is no suggestion by the Defendants that the verdict form used by the district court
in this case was itself unfairly prejudicial to them or unduly confusing to the jury, making inapposite
Defendants' citation to Overseas Private Investment Corp. v. Metro. Dade County, 47 F.3d 1111, 1116
(11th Cir.1995).
post-1991 harm. Whether a plaintiff has standing to assert a RICO claim is a "threshold legal issue subject
to de novo review." Andrews v. American Tel. & Tel. Co., 95 F.3d 1014, 1022 (11th Cir.1996). We find no
reversible error on this record.
Defendants contend that the Plaintiffs lack standing to recover for harm arising out of Defendants'
alleged misconduct after December 1991. As of that date, all of the Plaintiffs transferred their partnership
interests to six offshore corporations created specifically to consolidate the Plaintiffs' respective interests in
the six properties. For example, all of the Plaintiff-partners in the Foxfire Estates Partnership transferred their
shares to a new corporation called Heron, which then replaced those Plaintiffs as a partner.8 The corporations
were formed with the assistance and at the urging of Defendants' agents. Defendants argue that any harm
caused by their post-1991 misconduct was suffered by the corporations, and only remotely by the Plaintiffs.
Accordingly, they say, Plaintiffs lack standing to recover for that harm on their own, but must instead seek
those damages, if at all, in the name of the corporations. We disagree.
In Bivens Gardens Office Building, Inc. v. Barnett Banks of Florida, Inc., 140 F.3d 898 (11th
Cir.1998), we ruled that "a party whose injuries result 'merely from the misfortunes visited upon a third
person by the defendant's acts' lacks standing to pursue a claim under RICO." Id. at 906. As we explained,
"RICO standing will not arise solely because one is a shareholder or a limited partner in a company that was
the target of the alleged RICO violation. Such an injury is too indirect or 'derivative' to confer RICO
standing." Id. (citations omitted). We have emphasized, however, that simply because the plaintiff is a
shareholder of a corporation, it does not necessarily follow that he lacks standing to seek RICO damages in
his own right. There is no bright-line rule for determining when an individual who is also a corporate
shareholder sues under § 1964 to recover for a RICO violation that affects both the individual and the
corporation. The inquiry is inherently fact-specific.
In Beck v. Prupis, 162 F.3d 1090 (11th Cir.1998), for example, we rejected the argument that a civil
RICO plaintiff lacked standing because he was allegedly harmed only in his capacity as a creditor and
stockholder of a corporation. The plaintiff, Beck, was a former employee and director of the corporation.
He alleged that he was fired and fraudulently induced to make unwise personal financial investments by the
corporation's other directors. The district court held that Beck's injuries were based on his status as a creditor
and stockholder, and that his injuries were therefore too indirect to give him standing under RICO. We held
8
The corporations thereafter controlled 80-90% of the partnerships.
otherwise:
The district court is correct that a creditor or stockholder lacks standing when his claim is based
solely on acts of racketeering that target the corporation. See Bivens Gardens Office Bldg., Inc. v.
Barnett Banks of Fla., Inc., 140 F.3d 898, 906 (11th Cir.1998); Warner v. Alexander Grant & Co.,
828 F.2d 1528, 1530 (11th Cir.1987). A plaintiff's status as a creditor or stockholder, however, does
not preclude standing for RICO violations if the plaintiff has alleged an injury proximately caused
by the defendants' acts of racketeering that target the plaintiff. See id. at 1530-31. In this case, Beck
has properly set forth claims of injury proximately caused by racketeering activity that targeted him.
We therefore hold that he has standing under RICO.
162 F.3d at 1096 n. 10 (emphasis added).
Likewise, in Bivens, we afforded standing to a plaintiff who was a shareholder and creditor of a
corporation where the defendants' conduct affected him in a different way than it affected the corporation and
other shareholders. 140 F.3d at 908 (explaining that the allegedly unlawful act "affected creditors in a manner
distinct from shareholders, and in a manner sufficiently direct to confer RICO standing on Konstand in his
capacity as a creditor"). We specifically observed that, notwithstanding the general rule that a corporation's
creditor lacks RICO standing, "it is possible that a pattern of racketeering could be directed specifically at
a corporation's creditors." Id. These decisions are consistent with the broader corporate law principle that a
shareholder need not proceed by way of a derivative action to redress harm to a corporation where the
shareholder "shows a violation of a duty owed directly to him." Schaffer v. Universal Rundle Corp., 397 F.2d
893, 896 (5th Cir.1968).
It is plain from this record that Plaintiffs' injuries, before and after formation of the corporations, do
not arise "solely" out of a scheme targeting the corporations. Beck, 162 F.3d at 1096 n. 10. The evidence at
trial established that, from 1988 through formation of the corporations in late 1991, Defendants targeted their
wrongful acts at the individual Plaintiffs. Defendants' scheme was not designed to inflict harm on the
corporations, but rather to damage the Plaintiffs. Indeed, the majority of the alleged wrongdoing—including
the primary wrong (the land price fraud)—occurred, and the lion's share of the sought-after damages were
incurred, well in advance of the chartering of the corporations.
There is no indication that Defendants' focus changed after formation of the corporations, or that the
existence of corporations in any way affected the injury ultimately suffered by the individual Plaintiffs.
Defendants cite no evidence that after 1991 their communications and capital calls went solely through the
corporations. Indeed, there is evidence that, even after the corporations were formed, Defendants and their
agents contacted the individual Plaintiffs and accepted funds from the individual Plaintiffs. Even if that
evidence did not exist, the critical fact remains that the original and ongoing purpose of Defendants' scheme
was to inflict harm on the individual Plaintiffs by targeting them as individuals.
The transfer of partnership interests to the corporations must be viewed against the backdrop of all
that came before it. The individual Plaintiffs were always the target of Defendants' scheme, and that did not
change after 1991. It is simply impossible, on this record, to say that Plaintiffs' post-1991 claims are based
"solely on acts of racketeering that target the corporation[s]," Beck, 162 F.3d at 1096 n. 10 (emphasis added),
let alone that Plaintiffs' post-1991 injuries resulted " 'merely from the misfortunes visited upon a third person.'
" Bivens, 140 F.3d at 906 (emphasis added). Concluding that the Plaintiffs lack standing after 1991 would
ignore the record and indefensibly elevate form over substance.
Moreover, denying standing in these peculiar circumstances would not serve the principle recognized
in Bivens. One of the primary justifications for that principle is the concern that otherwise a civil RICO
plaintiff might obtain a "double recovery," collecting damages for the same violation both in his capacity as
an individual and in his capacity as a corporate shareholder. To prevent that situation, the law generally
provides that the harm inflicted solely on a corporation must be pursued by the corporation alone.
Here, however, there is no risk of a double recovery. After trial, the Defendants argued to the district
court that the corporate Plaintiffs could not recover a money judgment on their outstanding claim for an
accounting precisely because damages for any misconduct affecting the corporations had already been
awarded to the individual Plaintiffs on their RICO claims.9 The district court accepted that argument in
dismissing the accounting claim and refusing to award any money to the corporate Plaintiffs.10 Defendants,
in other words, highlighted the individual Plaintiffs' recovery of damages for post-1991 harm as a reason to
deny damages to the corporate Plaintiffs—the same corporate Plaintiffs whom Defendants now advise us
were the only parties with standing to recover for post-1991 harm.
Defendants cite no case law rejecting standing in a civil RICO action under these circumstances.
9
See Defendants' Post-Trial Brief on Accounting, Nov. 19, 1999, at 5-10; Defendants' Supp. Brief in
Resp. to Corp. Plaintiffs' Brief on Their Cause of Action for Accounting Under O.C.G.A. § 14-8-21 and
14-8-22, Dec. 9, 1999, at 5 & n. 1 ("Plaintiffs presented evidence on damages that accrued after 1991,
when the partnership interests were assigned to the Corporate Plaintiffs.... It is very likely then that the
jury considered evidence of damages that accrued after the individual Plaintiffs transferred their interests
to the offshore corporations. Because any damages awarded to the Corporate Plaintiffs via an accounting
will pass through the corporations to the shareholders in the form of increased share value and dividends,
the individual Plaintiffs, who have already recovered RICO damages, will recover a second time if an
accounting is ordered.").
10
Order of Oct. 18, 2000, at 1-2 ("Allowing a claim for additional damages through the means of an
accounting would ... allow the recovery of double damages. This is not allowed....").
Bivens denied standing to two plaintiffs who alleged standing solely on the ground that they were
shareholders and creditors of the corporation. 140 F.3d at 908. Bivens also denied standing where the
plaintiff claimed that the defendant's conduct injured him in his capacity as a creditor of the corporation,
because the alleged wrongdoing was "aimed primarily at the corporation, not at its creditors." Id. In this case,
by contrast, the plaintiffs do not allege standing to sue for post-1991 damages "solely" on the ground that they
were shareholders or creditors of the corporations. Nor can we say that the RICO violations alleged in this
case were ever aimed "primarily" at the corporations—indeed, just the opposite is true. Simply put, we
cannot say that these Plaintiffs lacked standing to recover damages for Defendants' wrongdoing after 1991
where Plaintiffs' interests were shifted to a corporation, but the pattern of racketeering giving rise to the RICO
violation plainly did not shift its focus to those corporations.11
B.
Defendants next contend that the district court erred by failing to instruct the jury regarding the
proper interpretation of potentially conflicting contract terms relating to Defendants' entitlement to claim
expenses and commissions, and instead leaving the task of contract interpretation to the jury. As Defendants
see it, the court should have interpreted the contracts in a manner favorable to them, and then instructed the
jury in accordance with that interpretation. Defendants maintain that the relevant contracts authorized their
taking of expenses as well as commissions on the partnerships' real estate sales, a proposition at odds with
the Plaintiffs' argument that the taking of those proceeds was unauthorized. The district court considered
Defendants' argument, but specifically declined to construe the agreements, finding that proper interpretation
of the agreements was a fact question properly left to the jury. We agree.
This court reviews the district court's refusal to give a defendant's requested jury instruction for abuse
of discretion. See, e.g., United States v. Chirinos, 112 F.3d 1089, 1101 (11th Cir.1997) (citing United States
11
Even if we were to conclude that under our precedent Plaintiffs could not recover in their own right
for damages inflicted after 1991, it would not necessarily follow that Defendants are entitled to a new trial
on damages. Defendants had every opportunity to ask the district court to modify the verdict form to
require the jury to separate Plaintiffs' pre- and post-1991 damages on the RICO claim. Instead,
Defendants did not make that request, and agreed to the submission of a verdict form that did not instruct
the jury to separate pre- and post-1991 damages. If Defendants were concerned that the jury would award
the individual Plaintiffs damages for misconduct targeted at the corporations, then Defendants surely
could have sought a verdict form reflecting that distinction, rather than remaining silent and trying to
preserve for possible appeal the argument that the entire damages award must be set aside because no one
can distinguish pre-and post-1991 damages. See McCord v. Maguire, 873 F.2d 1271, 1274 (9th
Cir.1989). It therefore does not follow that Defendants' position, even if correct, would entitle them to the
discretionary relief of a new trial. We need not decide the issue, however, because Defendants' objection
to the Plaintiffs' standing is—on this record—unpersuasive.
v. Morales, 978 F.2d 650, 652 (11th Cir.1992)). "We apply a deferential standard in reviewing jury
instructions." Jennings v. BIC Corp., 181 F.3d 1250, 1259 (11th Cir.1999). Although a district court may
abuse its discretion if its decision rests on an incorrect premise of law, see, e.g., United Kingdom v. United
States, 238 F.3d 1312, 1319 n. 8 (11th Cir.2001), reversal for a new trial is warranted only if the failure to
give the instruction resulted in prejudicial harm to the requesting party. See Roberts & Schaefer Co. v.
Hardaway Co., 152 F.3d 1283, 1295 (11th Cir.1998).
The relevant portions of the agreements are as follows: With respect to expenses, the Partnership
Agreement states that the managing partner—Sanvir—is entitled to receive its out-of-pocket expenses on
behalf of the partnership. The Partnership Agreement goes on to say that Sanvir and its "employees, agents
and representatives" (including, by definition, AA and Virani) are entitled to "reasonable and necessary
out-of-pocket expenses," but only those "representing sums payable to unrelated third parties " (emphasis
added). Meanwhile, the Management Agreement between Sanvir and AA (whose terms are binding on the
partners) states that AA in its role as manager "shall receive proper reimbursement for all out-of-pocket costs
and expenses incurred in connection with the performance of its duties and obligations hereunder."
As for commissions, the Partnership Agreement does not contain any provision authorizing the taking
of commissions. Moreover, the Partnership Agreement precludes the manager (AA) and the managing
partner (Sanvir) from claiming any sort of management fee until after the partners' contributions have been
repaid plus interest. The Management Agreement, however, states that real estate "sales consummated by
[AA] or any of its principals, affiliates, agents, employees, or representatives who are licensed real estate
agents or licensees shall entitle it to receive commissions at the customary rates in the State of Georgia at the
time of such sales."
The district court effectively treated these provisions as ambiguous, and left it to the jury to decide
whether and to what extent they authorized the Defendants' taking of expenses and commissions in these
circumstances. Both sides presented testimony and argument at trial regarding the scope of these provisions.
By its verdict, the jury necessarily concluded that the agreements did not fully authorize the Defendants'
taking of partnership funds for expenses and commissions.
Defendants argue in essence that the district court should not have left the task of contract
interpretation to the jury. Instead, say Defendants, the Court should have instructed the jury that the
Management Agreement is decisive on this issue, trumps any conflicting language in the Partnership
Agreement, and unambiguously permits the use of partnership funds for the payment of expenses and
commissions to the Defendants or, at the very least, AA. Although Plaintiffs occasionally assert that the
agreements read together unambiguously forbid such payments, they ultimately respond that whether "the
partnership agreements and the management agreements authorized Defendants to pay themselves millions
of dollars in commissions and salaries from partnership funds was an issue properly resolved by the jury."
Georgia law—which the parties agree governs interpretation of the contracts—plainly contemplates
that questions of contract interpretation may be submitted to a jury. As we explained in St. Charles Foods,
Inc. v. America's Favorite Chicken Co., 198 F.3d 815 (11th Cir.1999): "Under Georgia law, '[t]here are three
steps in the process of contract construction. The trial court must first decide whether the contract language
is ambiguous; if it is ambiguous, the trial court must then apply the applicable rules of construction
(O.C.G.A. § 13-2-2); if after doing so the trial court determines that an ambiguity still remains, the jury must
then resolve the ambiguity.' " Id. at 819 (citing Georgia-Pacific Corp. v. Lieberam, 959 F.2d 901, 904 (11th
Cir.1992) (quoting Copy Sys. of Savannah, Inc. v. Page, 197 Ga.App. 435, 398 S.E.2d 784, 785 (1990))).
[T]he "cardinal rule of construction is to ascertain the intention of the parties." When attempting to
ascertain the intent of parties to a contract, the court should consider the language of the contract in
light of the surrounding circumstances.... Enforcement of the parties' intent is superior to the other
rules of construction, "if that intention is clear," the parties used "sufficient words ... to arrive at the
intention," and "it contravenes no rule of law." If, however, after applying the rules of construction,
the intent of the parties continues to be disputed and capable of more than one interpretation, then
it is a "factual matter for resolution by the jury and not a matter of law for determination by the
court."
St. Charles Foods, 198 F.3d at 820 (citations omitted). Particularly important for this case, Georgia law also
contemplates that contracts executed together as part of the same transaction should generally be construed
together. See Barton v. Olshan, 244 Ga. 341, 260 S.E.2d 83, 83 (Ga.1979); Rizk v. Jones, 243 Ga. 545, 255
S.E.2d 19, 20 (1979); Empire Distrib., Inc. v. George L. Smith II Georgia World Cong. Ctr. Auth., 235
Ga.App. 742, 509 S.E.2d 650, 653 (1998).
The core question is whether these agreements, viewed alongside each other, are sufficiently
ambiguous regarding the Defendants' ability to claim commissions and expenses that the issue could have
been left to the jury, rather than decided by the court and set out for the jury in an instruction. It is essential
to keep in mind, however, that no claim for breach of contract was ever submitted to the jury; rather, the
meaning of the contract terms had significance only to the extent they affected resolution of Plaintiffs' RICO
and state law claims. Accordingly, even if the jury had been instructed regarding the contracts in the manner
Defendants suggest, that would not necessarily have entitled Defendants to judgment on Plaintiffs' RICO
claim. The district court's latitude to submit an issue of contract interpretation to the jury—which Georgia
law undeniably allows—is surely even greater when terms of the contract are not dispositive of the claim and
the claim in other respects is marked by substantial factual disputes.
In any event, we find no error in the district court's refusal to instruct the jury as Defendants wished.
The agreements are ambiguous in light of the relevant case law and Georgia's statutory rules of construction.
With respect to expenses, although the Management Agreement seemingly allows AA to recover its
out-of-pocket expenses, the Partnership Agreement can fairly be read to address the same subject in a contrary
way, by forbidding the use of partnership funds by Sanvir or its "employees, agents and representatives" for
out-of-pocket expenses unless payable to "unrelated third parties."
Defendants assert that, if the expenses language in the Management Agreement was not meant to
loosen the pertinent language of the Partnership Agreement, then the relevant clause of the Management
Agreement—which was drafted after the Partnership Agreement—would serve little purpose. See O.C.G.A.
§ 13-2-2(4) ("The construction which will uphold a contract in whole and in every part is to be preferred.").
Moreover, Defendants contend that the term "unrelated third parties" as used in the Partnership Agreement
cannot be read to establish a conflict between that agreement and the Management Agreement.12 Defendants
rely on testimony from the agreements' drafter, Randall Lipshultz, who said that the term "unrelated third
parties" simply means non-partners, such that expenses payable to an entity like AA—which was controlled
by a partner, but was not a partner itself—or a person like Virani—who promised to become a partner, but
never did—were permissible.
That interpretation, however, is at odds with the ordinary meaning of "unrelated third parties," which
would seem to exclude not only partners such as Sanvir, but also persons or entities (such as Virani or AA)
who own, or are affiliates of, a partner. See O.C.G.A. § 13-2-2(2) (words in a contract "generally bear their
12
Defendants suggest in their reply brief that "the meaning of 'unrelated third parties' in the
Partnership Agreements is irrelevant" because payments for expenses were always made to AA under the
Management Agreement rather than to Sanvir under the Partnership Agreement. This argument, of
course, does nothing to advance Defendants' position that the district court misapplied the applicable law
governing contract interpretation. Moreover, the questions of which Defendants were the actual
recipients of partnership funds for expenses or commissions, and the manner in which those funds were
distributed, are plainly ones of fact resolvable by the jury. From our own review of the record, we find
ample evidence demonstrating that the flow of partnership funds into and among the Defendants' accounts
was complicated, if not calculated to mislead.
usual and common signification").13 Defendants' interpretation also collides with the well-settled principle
that doubts in a contract are construed strongly against the drafting party. See id. § 13-2-2(5); Empire
Distrib., 509 S.E.2d at 654. Finally, Lipshultz—a long-time attorney for Virani and AA—merely offered his
own view of the meaning of the term "unrelated third parties"; the value of that testimony as evidence of the
parties' intent could fairly be described as minimal. Cf. O.C.G.A. § 13-2-2(1) ("Parol evidence is inadmissible
to add to, take from, or vary a written contract.").
Simply put, the record evidence regarding the parties' intent is inconclusive, and the rules of
construction do not clearly resolve how the language in the Management Agreement fits with the potentially
conflicting language in the Partnership Agreement regarding the use of partnership funds for salaries and
other expenses incurred by related non-partners such as AA and Virani. On this record, and given Georgia
law, we cannot say that the district court erred by allowing that issue to go the jury.
Likewise, the district court did not err on this record by allowing the jury to decide when, if at all,
the agreements allowed the Defendants to take commissions. The Partnership Agreement does not give any
Defendants the right to claim commissions. The agreements also specifically preclude the managing partner
(Sanvir), the manager (AA), and their agents from claiming any kind of management "fee" prior to the time
the investors are repaid plus interest. The Management Agreement, by contrast, expressly permits
commissions, and Defendants argue that this language is meaningless if we construe the Partnership
Agreements as an expression of intent to forbid the taking of commissions. Once again, the intent of the
parties is not clear on this record. Moreover, the Management Agreement may be susceptible to different
readings on several key points, such as whether commissions, if recoverable at all, may be recovered solely
by AA (the most plausible reading) or also by its agents (the reading assumed by Defendants). We are not
convinced that the district court erred by allowing the jury to determine the proper interpretation of these
terms, and a new trial is not warranted on this basis.14
13
Tellingly, although Defendants' accountant, Hoyte Veazey, professed that he was not familiar with
how the term was used in the contracts, he specifically described Virani, AA, and Sanvir as "related
parties" within the meaning of the tax code. Defendants' bookkeeper, David Patterson, likewise testified
that these were not unrelated third parties. Indeed, when asked whether the expenses claimed by AA and
Virani were "out-of-pocket expenses to an unrelated third party," Patterson answered no.
14
Plaintiffs assert that, even assuming Defendants' interpretation of the agreements is correct, what
Defendants did here was plainly forbidden and therefore a rational jury would have found against them
even if Defendants' desired instruction were given. Plaintiffs contend that the salaries claimed by Virani
were not "out-of-pocket expenses," that the claimed expenses were almost never "reasonable," and that
Defendants produced no receipts. Plaintiffs also contend that neither Weiss nor Virani was licensed in
C.
In a related argument, Defendants assert that the district court erred by failing to enter judgment as
a matter of law on Plaintiffs' claims for improper taking of commissions and expenses because the Plaintiffs
knew that these items would be, and were, taken. They assert that no damages for expenses and commissions
should have been awarded, given that all of the Plaintiffs had notice that Defendants "were to receive"
payment for these items. As support for this argument, Defendants rely in part on the contract language
discussed above; as explained, however, the relevant contract language was not so clear regarding the
Defendants' entitlement to commissions and expenses that Plaintiffs were thereby placed on notice that
Defendants would act as they did. Plaintiffs are obviously charged with knowledge of the contracts, but what
those contracts mean was, in this context, a question properly reserved for the jury.
Defendants also cite testimony by a few Plaintiffs to the effect that these Plaintiffs knew commissions
would be going to AA, or that AA was entitled to receive reimbursement for operating expenses. Plaintiffs
respond that Defendants mischaracterized the snippets of testimony that they cite. Having reviewed the
record, we agree that the testimony cited by the Defendants does not carry the weight they attach to it. The
record does not remotely establish that the Plaintiffs were aware that Defendants would obtain expenses and
commissions for the items, and in the manner, that they did. At best, the record demonstrates that some
Plaintiffs believed ahead of time that Defendants could, in certain circumstances, demand expenses or
commissions. There is no showing that any Plaintiff had sufficient notice of what Defendants actually were
doing, and subsequently gave his or her approval. Reading the evidence in the light most favorable to the
Plaintiffs, as we must when reviewing a jury verdict in their favor, we do not believe the district court erred
by refusing to enter judgment as a matter of law on grounds of notice with respect to the Plaintiffs' claims for
improper expenses and commissions.
D.
Defendants next assert that the district court should not have allowed Plaintiffs to present evidence
through their expert economist, Dr. Stephen Silberman, regarding "lost value" damages as part of their RICO
Georgia, and thus neither was entitled to claim a commission on sales of the partnerships' Georgia real
estate. Plaintiffs further observe that the manner in which Virani went about claiming commissions
(using Weiss as a front) is powerful evidence that he did not believe in good faith that he was entitled to
claim commissions. Although we are inclined to agree with Plaintiffs' arguments, we need not decide the
issue, as there was no error in the district court's refusal to instruct the jury in accordance with
Defendants' wishes, and therefore we do not reach any question of prejudice.
claim. Silberman provided the jury with his calculation of the amount of money that Plaintiffs would have
earned if the proceeds that Defendants pocketed through their frauds had been invested in U.S. real estate.
He based this calculation on an estimate of the return that would have been generated if the equivalent funds
had been placed in a real estate investment trust ("REIT"), using as his benchmark the performance of a
broad-based REIT index during the relevant period. Silberman identified the lost value damages at
$11,596,395 for all Plaintiffs. The verdict, which did not differentiate between "out-of-pocket" damages and
lost value damages, totaled $6,078,000, virtually equivalent to Silberman's estimate of Plaintiffs' overall
out-of-pocket losses ($6,062,615).
Defendants raise three categories of objections. Defendants initially contend that, as a matter of law,
these lost value damages are not recoverable in a civil RICO action. They also contend that Silberman's
assumptions—particularly his assumption that the performance of a REIT index is an appropriate gauge for
the returns that Plaintiffs would have generated on the pilfered funds—are too speculative. Finally, they
contend that Silberman's testimony should have been struck under the Federal Rules of Evidence and the
Supreme Court's analysis in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993).
Our review of the district court's decision to admit Silberman's testimony is very limited. We review
a trial court's evidentiary rulings on the admission of expert witness testimony only for abuse of discretion.
See, e.g., Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1312 (11th Cir.2000) (citing General Elec. Co.
v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997)). When employing an abuse of
discretion standard, " 'we must affirm unless we at least determine that the district court has made a clear error
of judgment, or has applied an incorrect legal standard.' " Alexander v. Fulton County, 207 F.3d 1303, 1326
(11th Cir.2000) (quoting SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th
Cir.1996)); see also Joiner, 522 U.S. at 143, 118 S.Ct. at 517 (reiterating that "deference [is] the hallmark
of abuse of discretion review"). We find no reversible error in the admission of this testimony.
Defendants first assert that courts do not award the kind of lost value damages that Plaintiffs seek
here. They contend that in cases where lost profits were allowed, the profits were either "bargained for or
within a longstanding transactional history that [was] diminished as a result of the defendants' misconduct."
Defendants maintain that what Plaintiffs seek here is akin to an award of prejudgment interest, which they
say is forbidden by RICO.
These broad arguments against Plaintiffs' lost value theory are not persuasive. To recover damages
for an injury sustained as a result of a RICO violation, a plaintiff must prove that the violation proximately
caused a loss to its business or property. See, e.g., Holmes v. Securities Invest. Prot. Corp., 503 U.S. 258,
267-68, 112 S.Ct. 1311, 1317, 117 L.Ed.2d 532 (1992). The touchstone of the inquiry, in other words, is
proximate cause; there is no automatic rule against the recovery of any type of lost profits or lost value
damages if proximate cause is shown.
We note as well that courts have contemplated the availability under RICO of lost value or lost profits
damages sufficiently similar to those sought here. In Terminate Control Corp. v. Horowitz, 28 F.3d 1335,
1343 (2d Cir.1994), for example, the Second Circuit upheld an award of profits to a contractor who
established that the defendants' RICO conspiracy caused it to lose contracts which it might have obtained but
for the illegal conduct. In Moore v. PaineWebber, Inc., 189 F.3d 165 (2d Cir.1999), the court reversed the
grant of a motion to dismiss a RICO claim which alleged that, but for the defendants' fraud, the plaintiffs
would not have purchased the defendants' investment packages, but would instead have invested their funds
in a different package. The court explained that the plaintiff adequately alleged a cause of action to recover
"the foregone returns of the alternative IRA or other retirement savings plan in which, but for PaineWebber's
misrepresentations, the plaintiffs ... would have placed the money that they put into [PaineWebber's plan]."
Id. at 172. District court rulings are in accord. See, e.g., Frankford Trust Co. v. Advest, Inc., 943 F.Supp.
531, 532 (E.D.Pa.1996); Sound Video Unlimited, Inc. v. Video Shack Inc., 700 F.Supp. 127, 142
(S.D.N.Y.1988); DeMent v. Abbott Capital Corp., 589 F.Supp. 1378, 1385 (N.D.Ill.1984).15
The cases upon which Defendants rely do not preclude the kind of lost value damages that Plaintiffs
sought here, and certainly do not establish the artificial and awkward principle that these kinds of damages
15
Defendants' analogy to prejudgment interest is flawed. To begin with, there is a conceptual
distinction between lost profit or lost value damages and prejudgment interest. Among other things,
prejudgment interest does not require any proof of causation. See Multiflex, Inc. v. Samuel Moore & Co.,
709 F.2d 980, 996-97 (5th Cir.1983) (allowing recovery of "lost opportunity" damages in an antitrust case
where the plaintiff alleged that defendants' conduct had deprived it of market share, because such a
recovery was conceptually different from prejudgment interest, which at that time was unavailable under
the relevant statutes). Accordingly, even if prejudgment interest were unavailable under RICO, that
would not preclude a plaintiff from recovering these kinds of damages so long as they were proximately
caused by the RICO violation. Second, contrary to Defendants' assertion, courts have not read RICO to
preclude prejudgment interest. See Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1571 (1st
Cir.1994) (decision as to whether to award prejudgment interest under RICO is left to district court's
discretion); Abou-Khadra v. Mahshie, 4 F.3d 1071, 1084 (2d Cir.1993) (RICO statute does not contain
provision barring prejudgment interest, and any such award is discretionary). Although we need not and
do not decide the issue today, we observe that Defendants cite no federal Court of Appeals decision
holding prejudgment interest unavailable as a matter of law under § 1964.
are available only when they are "bargained for or within a longstanding transactional history." In
Fleischhauer v. Feltner, 879 F.2d 1290 (6th Cir.1989), for example, the plaintiffs alleged that the defendants'
RICO violations caused them to make an investment they otherwise would not have made. The court allowed
the plaintiffs to recoup the value of their investment, but did not allow them "under these circumstances" to
recover damages equivalent to the profits they would have earned if the investment had panned out as
promised. Id. at 1300-01. To explain its ruling, the court emphasized the absence of "realistic evidence ...
as to a reasonable value or estimate of lost profits or of the 'bargain' based on analogy, experience, or
practice." Id. at 1300.16 The Sixth Circuit did not erect a per se barrier to lost value damages; rather, it fully
acknowledged that "[a] plaintiff injured by civil RICO violations deserves a 'complete recovery,' " and
recognized that "in some cases expectancy damages might be appropriate." Id.We conclude, in short, that there is no statutory constraint on Plaintiffs' recovery of lost value
damages in these circumstances. Silberman's testimony was not inadmissible for this reason. The
recoverability of these kinds of damages is a function of proximate cause, and must be assessed on a
case-by-case basis.
Defendants next argue that the Plaintiffs established no foundation for an award of lost value
damages based upon testimony regarding what the pilfered money would have earned had it been invested
in U.S. real estate, or, more specifically, a REIT. We disagree. "Suffice it to say that while damages may not
be determined by mere speculation or guess, it will be enough if the evidence show[s] the extent of the
damages as a matter of just and reasonable inference." G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d
1526, 1539 (11th Cir.1985) (internal quotation marks omitted).
The district court acted within its discretion by allowing Silberman to testify based upon his
assumption that the performance of a REIT index was an appropriate benchmark for gauging the profits that
Plaintiffs would have earned if the pilfered funds had been used in accordance with their expectations and
the law. Silberman testified that he assumed that the Plaintiffs would have invested the pilfered funds in U.S.
real estate. He also testified that the performance of a REIT index was an appropriate yardstick for measuring
16
The other problem in Feltner was that the Defendants' RICO violation did not proximately cause the
asserted lost value damages. As the court explained, "[t]he conduct of the defendants in the case at bar
caused the parties to invest ... but it did not cause the investment items to become less profitable than
defendants represented." Id. at 1300. In this case, by contrast, proximate cause was established. The jury
could have found (and presumably did find) that Defendants' RICO violations deprived the Plaintiffs of
the use of their investment dollars, and that the Plaintiffs would have re-invested the funds if they had
been available for use.
the performance of U.S. real estate generally during the relevant period. Defendants contend that there is no
evidence that the Plaintiffs would have invested in U.S. real estate if their investment dollars had not been
available for lawful use in this specific venture. But the fact that Plaintiffs did invest in U.S. real estate on
this occasion is persuasive evidence that they had earmarked the funds they contributed to the Defendants
specifically for U.S. real estate. Although that proposition may be debated (and indeed, Defendants
challenged it vigorously during cross-examination), it is enough to support the admission of Silberman's
testimony, especially in conjunction with evidence that some Plaintiffs actually did invest in U.S. real estate
on other occasions.17 Moreover, notwithstanding Defendants' argument that REITs are too risky and
unpredictable to be cited as a yardstick for measuring the performance of real estate, there is sufficient
evidence to support Silberman's use of the broad-based REIT index which he employed in this case.
The district court, having considered Silberman's testimony in and out of the presence of the jury,
concluded that there was a sufficient foundation for Silberman's assumptions, and Defendants had ample
opportunity to cross-examine Silberman about those assumptions. We find no reversible error.
Defendants' Daubert challenge fails largely for the same reasons. As we explained in City of
Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998), for expert testimony to be admissible
under Rule 702 of the Federal Rules of Evidence, the proponent of the testimony must show that: (1) the
expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology
by which the expert reaches his conclusions is sufficiently reliable; and (3) the testimony assists the trier of
fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or
to determine a fact in issue. Id. at 563 (citing Daubert, 509 U.S. at 589, 113 S.Ct. at 2794). Daubert itself
stresses that "[t]he inquiry envisioned by Rule 702 is ... a flexible one." Id. at 594, 113 S.Ct. at 2797. "Many
factors will bear on the inquiry, and [there is no] definitive checklist or test." Id. at 593, 113 S.Ct. at 2796.
Defendants argue that Silberman was not qualified to offer an opinion regarding Plaintiffs' lost value
damages. This argument is not convincing. The record demonstrates that Silberman has a Ph.D. in
17
The lost value damages estimated by Silberman using the REIT index approximated the profits that
Plaintiffs would have made on the pilfered funds if the venture had achieved its expected eventual return
of 12%. Defendants argue that Silberman had no basis to offer that comparison during his testimony,
given that the Defendants expressly stated in their documents that no particular return could be
guaranteed. But the fact that Defendants did not guarantee a 12% return does not eliminate the relevance
of that estimate to establishing the reliability of Silberman's assumptions. Nor was the admission of
testimony regarding the comparison an abuse of discretion. It was made clear to the jury, through
Silberman's direct testimony and on cross-examination, that Plaintiffs' estimate of lost value damages was
based upon the REIT calculations, not the expected return of the venture.
economics from Yale, extensive experience as a professional economist, and a substantial background in
estimating damages. The subject matter of his testimony—calculating the economic losses suffered by the
Plaintiffs as a result of Defendants' conduct—was sufficiently within his expertise. Defendants insist that
Silberman has no real estate development experience and thus no basis to opine regarding how the pilfered
funds would have been invested by the Plaintiffs. That objection, however, goes more to the foundation for
Silberman's testimony than it does to his qualifications to calculate Plaintiffs' damages. As set forth above,
we conclude that there was an adequate foundation for Silberman's core assumptions.
Defendants' other Daubert objections likewise relate more to foundation than they do to Silberman
himself. Defendants assert that Silberman's analysis is unreliable because the methods he used to estimate
Plaintiffs' lost profits were unsound. In particular, Defendants say that Silberman was unfamiliar with the
individual Plaintiffs, conducted no original research regarding the use of REITs as an alternative investment,
and adopted a damages theory that was essentially unverifiable. Defendants further argue that Silberman's
testimony did not help the jury because there was no "fit" between the facts of the case and his assumptions
regarding REITs and Plaintiffs' lost value damages.
We are not persuaded by these arguments. Silberman's theories and methodology were sufficiently
reliable. The damages model adopted by Silberman was not, in our view, unusually complex, and his use of
a broad-based REIT index to estimate the performance of U.S. real estate was not without foundation. The
cases cited by Defendants are therefore plainly distinguishable. Compare Three Crown Ltd. P'ship v.
Salomon Bros., Inc., 906 F.Supp. 876, 894 (S.D.N.Y.1995) (declining to admit expert damages testimony
where the proposed expert's opinions were based on a novel and "intricate series of complicated calculations"
which yielded excessive damage figures resting upon "numerous assumptions without the type of support
required").
We likewise reject Defendants' complaints about Silberman's supposed lack of familiarity with the
Plaintiffs, for the reasons stated above. Notably, Silberman specifically opined that most economists would
not (as Defendants insist) have interviewed individual Plaintiffs to evaluate what those parties would have
done with the pilfered funds, given the high risk that their responses would be distorted by hindsight.
Although Silberman's testimony was certainly subject to attack by the Defendants—and attack it they did,
vigorously, on cross-examination—it met the threshold requirements of Daubert.
A district court's gatekeeper role under Daubert "is not intended to supplant the adversary system
or the role of the jury." Allison v. McGhan, 184 F.3d 1300, 1311 (11th Cir.1999). " 'Vigorous
cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking [debatable] but admissible evidence.' " Id. (quoting Daubert,
509 U.S. at 596, 113 S.Ct. at 2786). The district court, having carefully considered Silberman's testimony
and Defendants' objections, did not abuse its discretion by admitting this expert testimony. See United States
v. Majors, 196 F.3d 1206, 1215 (11th Cir.1999) (" '[F]ederal district courts ... perform [their] important
gatekeeping function by screening the reliability of all expert testimony, but they have substantial discretion
in deciding how to test an expert's reliability and whether the expert's relevant testimony is reliable.' "); see
also G.M. Brod, 759 F.2d at 1539-40 (upholding jury verdict awarding lost profits notwithstanding
defendant's argument that the testimony of plaintiff's expert on the subject was speculative and based on
faulty assumptions).
E.
Defendants next challenge under Daubert the district court's refusal to limit the testimony of
Plaintiffs' liability expert, Kenneth Barker. Barker, an accounting partner at Arthur Anderson, was qualified
as a forensic accounting expert with an expertise in detecting and tracing the misappropriation of funds in
complex financial transactions. Defendants argue that Barker was not entitled to testify in his capacity as an
expert regarding the meaning of the parties' contracts. According to Defendants, Barker repeatedly offered
"legal" opinions regarding the effect of disputed provisions in the Partnership and Management Agreements,
including provisions addressing Defendants' entitlements to commissions and expenses. Plaintiffs counter
that Barker did not offer legal conclusions, but merely stated the assumptions necessary to his opinions
regarding the flow of funds through the Defendants' accounts.
We find no reversible error in the admission of Barker's testimony.18 Defendants contend that
Barker, a non-lawyer, is not qualified to opine on the legal effect of the agreements. Defendants also contend
that Barker's statements about the agreements are unreliable and do not "fit" the facts because his own
assumptions are based largely on the assumptions of others regarding the import of contract language and the
applicable law. But Barker is certainly qualified to opine on forensic accounting issues, and as part of that
process he was entitled to state reasonable assumptions regarding the requirements of the applicable contracts
18
Defendants assert that Barker offered numerous legal opinions, but in many instances cite only to
Barker's deposition or pre-trial expert report rather than his testimony at trial.
in order to put his opinions in context. Our review of Barker's testimony confirms that, to the extent he spoke
of the contracts, he generally did so in the context of setting forth or explaining reasonable assumptions he
was asked to make by counsel. Although Defendants challenge many of those assumptions as unfounded,
that argument simply reflects their own view of the agreements—a view we do not share in this context.
Even assuming that some small portion of Barker's testimony should in hindsight have been
excluded, Defendants would still not be entitled to a new trial. We will not overturn an evidentiary ruling
and order a new trial unless the objecting party has shown a substantial prejudicial effect from the ruling.
See, e.g., Alexander, 207 F.3d at 1326; Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir.1997); Samples v.
City of Atlanta, 916 F.2d 1548, 1552 (1990). Defendants cannot make that showing on this record.
To begin with, Defendants had ample opportunity to cross-examine Barker vigorously about the
sources and content of his assumptions. Defendants' cross-examination was extensive, and undeniably made
plain to the jury their disagreement with Barker's assumptions regarding the contracts. Moreover, the district
court properly instructed the jury regarding Barker's role in the trial. We have recognized that an instruction
may be used to prevent a jury from placing too much weight on an expert's legal conclusions. See, e.g.,
United States v. Gold, 743 F.2d 800, 817 (11th Cir.1984) (decision to admit expert testimony about ultimate
legal issue in the case upheld where district court was "careful to instruct the jury about the weight that should
be given expert testimony such as [this]"). On its own initiative during Barker's direct testimony, the court
informed the jury as follows:
Ladies and gentlemen of the jury, I'm going to give you an instruction later on expert
witnesses. But I'm going to inform you right now that Mr. Barker is testifying to his opinion as an
expert that these various funds were taken inappropriately. That's ultimately the issue you're going
to have to decide, and you may consider Mr. Barker's opinion and give it whatever weight and credit
you choose ... but I want you to understand that it is for you to decide whether these funds were taken
inappropriately.
Later, after the close of the evidence, the court reminded the jury that "if you should decide that the opinion
of an expert is not based upon sufficient education and experience, or if you should conclude that the reasons
given in support of the opinion of the expert are not sound, or that the opinion is not supported by the
evidence, then you may disregard the opinion of any expert totally."
These instructions, although not referring to Barker by name, sufficiently addressed the possibility
that the jury would be misled into believing that Barker, rather than the court, was the source of the legal
standards applicable to the case. See United States v. Myers, 972 F.2d 1566, 1578 (11th Cir.1992) (error in
admission of expert testimony deemed harmless where court instructed the jury that "it was their 'duty to
decide ... the specific facts' and whether to 'accept ... [and] rely upon an expert witness' "); United States v.
Herring, 955 F.2d 703, 709 (11th Cir.1992) (any misstatement by expert of relevant legal definition harmless
where court "properly instructed the jury ... as to the weight to be given expert testimony," "nothing indicates
that the jury did not abide by the court's instructions," and the court "took adequate steps to protect against
the danger that the expert's opinion would be accepted as a legal conclusion"); United States v. Milton, 555
F.2d 1198, 1204 (5th Cir.1977) (no error in admitting expert testimony that appeared to be a legal conclusion
in light of instructions to the jury to "accord no unusual deference to expert testimony and to take the court's
instructions as the sole source of applicable law").
Finally, Defendants do not argue, nor could they persuasively, that the verdict is unsupportable
without considering the challenged testimony. Defendants insist that Barker's opinions about the parties'
contracts compounded the district court's error in submitting contract interpretation issues to the jury. As
explained above, however, we find no error in the district court's refusal to instruct the jury as Defendants
wished on that subject. Moreover, having examined the record, we cannot say that the allegedly improper
opinions offered by Barker were so numerous or so powerful in their likely impact that we may assume they
played a significant role in the jury's verdict. Quite simply, any error associated with the admission of
Barker's "legal conclusions" does not warrant setting aside the verdict.19
F.
Defendants likewise assert that the district court abused its discretion by allowing the Plaintiffs to
present testimony from an immigration expert, Dale Schwartz, regarding the passport-stamping practices of
Mexican immigration authorities. Various Plaintiffs testified at trial that Virani made several trips to
Monterrey for meetings to solicit their investment in the partnerships. Defendants denied those allegations,
and produced as an exhibit (not admitted into evidence) a passport which did not reflect any stamps by
19
Defendants rely primarily on two cases, neither of which is helpful. In Harcros Chemicals, we
indicated that testimony by an expert statistician purporting to define the "legal standards applicable to
this case" should be excluded on remand. 158 F.3d at 565. Barker's testimony did no such thing.
Likewise, in Montgomery v. Aetna Casualty & Surety Co., 898 F.2d 1537 (11th Cir.1990), we ruled that
the district court should not have allowed an expert to state his opinion regarding the duties created by an
insurance contract. We explained that "[a]n expert may not ... merely tell the jury what result to reach,"
and "also may not testify to the legal implications of conduct; the court must be the jury's only source of
law." Id. at 1541. Barker did not purport to tell the jury how it should interpret the contracts, and
certainly did not "merely" offer such an opinion. In any event, in neither Harcros Chemicals nor
Montgomery did we have occasion to consider whether the offending testimony was so egregious as to
require a new trial. In Harcros Chemicals, we reversed a summary judgment order, and in Montgomery
we had already decided that the objecting party was entitled to judgment as a matter of law before we
addressed the evidentiary issue.
Mexican immigration authorities showing Virani's entry into Mexico around the dates in question. In
response, Schwartz testified regarding the passport-stamping practices of Mexican immigration officials, and
opined that a Canadian citizen like Virani is not required to present a passport either to enter Mexico or to
return to the United States. Schwartz added that even when a passport is presented, it is not always stamped
by Mexican authorities.
Defendants now challenge the district court's denial of their Daubert challenge to Schwartz's
testimony. They assert that Schwartz's testimony is not reliable because it is based largely on his personal
experience rather than verifiable testing or studies. Although Daubert applies to all expert testimony, not just
"scientific" testimony, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 151, 119 S.Ct. 1167, 1176, 143
L.Ed.2d 238 (1999), there is no question that an expert may still properly base his testimony on "professional
study or personal experience." Id. Defendants' objection is unfounded on this record.
Defendants also contend that Schwartz had no experience with, and considered no studies regarding,
the practices of immigration authorities in Monterrey as opposed to Mexico generally. Defendants do not
establish sufficient reason to believe that Monterrey officials handle these matters differently than their
counterparts elsewhere in the country, however. Nor do Defendants persuasively challenge Schwartz's
qualifications to testify regarding Mexico generally. And Schwartz's testimony was consistent with Plaintiff
eyewitnesses who placed Virani in Monterrey on or about the dates in question.
Defendants' objections plainly go to the weight and sufficiency of Schwartz's opinions rather than
to their admissibility. The district court did not err in permitting Schwartz's expert testimony; and even if
it did, Defendants have not come close to showing that the challenged testimony had a "substantial prejudicial
effect" entitling them to a new trial. See Alexander, 207 F.3d at 1326.
G.
Defendants argue next that the district court erred by failing to instruct the jury that Plaintiffs should
be charged with constructive knowledge of the prices Defendants paid for properties acquired through their
land price fraud. As noted above, we review a district court's failure to give a jury instruction only for abuse
of discretion. See, e.g., Chirinos, 112 F.3d at 1101. We find no error on this issue.
At trial, Plaintiffs sought damages equivalent to the "excess profits" that Defendants obtained through
the land price fraud. Plaintiffs produced evidence showing that, rather than acquiring the desired tracts for
the partnerships, Defendants first acquired the tracts themselves at market prices, and then sold them to the
partnerships at vastly inflated prices, pocketing the difference. Those extra proceeds would otherwise have
remained in the partnerships' accounts and been available for uses benefitting the partners. In an attempt to
overcome this evidence, Defendants argue that the Plaintiffs could have and should have discovered for
themselves the prices actually paid for the properties. Accordingly, say Defendants, Plaintiffs cannot now
argue that they had no knowledge of the alleged fraud, and cannot persuasively assert that they invested or
retained their partnership interests in reliance on the belief that no such fraud was occurring. Defendants
therefore assert that the district court should have instructed the jury that Plaintiffs had constructive
knowledge of the alleged fraud.
Defendants' argument is based largely on the contents of certain Georgia public records. As
described by the Defendants, Georgia law requires that revenue stamps reflecting the amount of the statutory
transfer tax be placed on all warranty deeds exchanged in real estate transactions. The tax paid is $1 for the
first $1000 in price and ten cents for each additional $100. Defendants contend that knowing this formula,
a reasonable person could use the revenue stamps to compute the amount paid for the properties, and draw
whatever inference he may.
Plaintiffs do not dispute that one could conceivably in some circumstances use the stamps placed on
a warranty deed to determine a parcel's purchase price. They do not agree, however, that the process would
be as easy or reliable as Defendants propose. They emphasize that the face of the deed does not reveal the
purchase price; the purchase price may be determined only after number-crunching. They also argue that
the process is neither straightforward nor foolproof. Indeed, Defendants' accounting expert—who certainly
is as sophisticated, if not more, on these matters than the individual Plaintiffs—testified that he did not know
how to determine the purchase price of a parcel from the deed. Defendants' real estate expert, although
testifying that one could determine purchase price from the deed, acknowledged that not all warranty deeds
bear a revenue stamp, and conceded that the process might require further factfinding or independent
research; to confirm, for example, whether there was a mortgage on the property.
Georgia cases have applied a public record/constructive knowledge doctrine in connection with real
estate transactions. It does not appear, however, that the doctrine has ever been applied where the relevant
fact is not stated explicitly on the face of the document (as opposed to requiring further calculations, a
measure of deduction, and at least the potential for further research). In Reidling v. Holcomb, 225 Ga.App.
229, 483 S.E.2d 624 (1997), for example, the court rejected the negligence claim of a purchaser who started
construction of a house on the wrong parcel of land. The court found that various public records, including
the deed itself, expressly put the purchaser on notice of the proper location of his plot; it therefore reasoned
that the purchaser's "failure to exercise ordinary care ... to avoid the negligence, if any, of [the defendant real
estate agency] is so plain, palpable, and indisputable as to bar his recovery as a matter of law." Id. at 626.
In Hardage v. Lewis, 199 Ga.App. 632, 405 S.E.2d 732 (1991), the court rejected the negligence claim of a
purchaser who relied on a survey that failed to indicate the existence of an easement. The court found, among
other considerations, that the easement was recorded and thus could have been discovered from a review of
public documents. Id. at 734. And in Blackburn v. Buchwald, 256 Ga. 591, 351 S.E.2d 446, 447 (1987), the
plaintiff's claim was barred because the deed representing an alleged fraudulent conveyance had been
recorded and thus the transaction could have been discovered. In none of these cases did the court attempt
to lay down a broad rule of constructive knowledge, and in none of these cases was any measure of deduction
required to discern the relevant information.20
Applying the public record constructive/knowledge doctrine here would go beyond existing Georgia
law. Moreover, Defendants' proposed instruction is unsupported by the record, which does not establish an
adequate foundation for the notion that calculating purchase price based on the contents of the warranty deeds
for the particular parcels at issue here would be simple and unequivocal. Finally, although non-residents who
seek out and purchase a parcel of Georgia real estate may well have some duty of diligence regarding the
affairs of the property in question, here the Defendants—personally and through their agents—actively
solicited the Plaintiffs in Mexico. Moreover, the Plaintiffs did not actually purchase Georgia real estate;
rather, the partnerships purchased the properties. To charge these Plaintiffs with the same constructive
knowledge of Georgia's public records expected of someone who independently seeks out and purchases a
parcel of real estate in Georgia is unwarranted, at least in these unique circumstances and absent controlling
Georgia authority directly on point. The district court did not abuse its discretion by refusing to give a jury
instruction regarding Plaintiffs' constructive knowledge of the land price fraud.21
20
The only other case cited by the Defendants, Lewis v. Patterson, 191 Ga. 348, 12 S.E.2d 593(1940), is likewise inapposite, and provides no support for their argument that it was "reversible error not
to ... charge the jury" in the manner they propose. Indeed, in Lewis the court actually set aside a judgment
because the trial judge gave an incorrect and overly broad charge relating to the public
record/constructive knowledge doctrine as it related to wills.
21
In an alternative argument, Defendants assert that Plaintiffs had constructive knowledge of the
prices paid for the tracts because their agent, Abaco, had knowledge of or access to information regarding
those prices. As discussed above, there has been no showing that Abaco was as an agent of the Plaintiffs,
and there are no grounds for reversal on this basis.
H.
Defendants argue that, for 32 Plaintiffs, the evidence was insufficient to support the jury's implicit
finding that the Defendants committed at least two RICO predicate acts proximately causing injury to them.
Accordingly, say the Defendants, the district court erred by not entering judgment as a matter of law on these
Plaintiffs' RICO claims. We disagree.
Our review of this issue is limited. We ask only " 'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.' " Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d
202 (1986). Moreover, "[a]ll evidence and inferences are considered in a light most favorable to the
nonmoving party.... [I]f there is substantial evidence opposed to the motion such that reasonable people, in
the exercise of impartial judgment, might reach differing conclusions, then such a motion was due to be
denied and the case was properly submitted to the jury." Tidwell v. Carter Prods., 135 F.3d 1422, 1425 (11th
Cir.1998) (citing Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir.1989)).
There is no dispute that, to prove a civil RICO claim based on a violation of § 1962(c), a plaintiff
must establish that the defendant committed at least two predicate acts proximately causing the alleged injury
to his business or property.
An act of racketeering [is] commonly referred to as a "predicate act[.]" [See 18 U.S.C. §
1961(1) ]. A "pattern" of racketeering activity is shown when a racketeer commits at least two
distinct but related predicate acts. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 n. 14, 105
S.Ct. 3275, 87 L.Ed.2d 346 (1985); Bank of Am. Nat'l Trust & Sav. Ass'n v. Touche Ross & Co., 782
F.2d 966, 971 (11th Cir.1986).
Predicate acts are related if they " 'have the same or similar purposes, results, participants,
victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and
are not isolated events.' " See Sedima, 473 U.S. at 496 n. 14, 105 S.Ct. 3275....
Private litigants can recover for racketeering injuries under 18 U.S.C. § 1964(c), but their
injury must "flow from the commission of the predicate acts." Sedima, 473 U.S. at 497, 105 S.Ct.
3275. This means that a private plaintiff who wants to recover under civil RICO must show some
injury flowing from one or more predicate acts. A plaintiff cannot allege merely that an act of
racketeering occurred and that he lost money. He must show a causal connection between his injury
and a predicate act. If no injury flowed from a particular predicate act, no recovery lies for the
commission of that act.
Pelletier v. Zweifel, 921 F.2d 1465, 1496-97 (11th Cir.1991) (citations omitted).
As noted above, Plaintiffs attempted to prove that Defendants committed seven statutory predicate
acts affecting each Plaintiff: (1) money laundering, 18 U.S.C. § 1956(a)(1); (2) receiving stolen funds, 18
U.S.C. § 2315; (3) using interstate travel to launder funds, 18 U.S.C. § 1952; (4) transporting funds taken
by fraud, 18 U.S.C. § 2314; (5) mail fraud, 18 U.S.C. § 1341; (6) wire fraud, 18 U.S.C. § 1343; and (7)
transporting persons to defraud, 18 U.S.C. § 2314. Defendants say that the 32 Plaintiffs either failed to prove
the elements of these offenses or failed to show how they were proximately injured by the offenses.
An initial question concerns how we approach this issue on appeal. Defendants suggest that if there
is insufficient evidence with respect to even one of the seven predicate acts, we must reverse and enter
judgment in their favor because it is possible that the jury relied on that act and only one other in deciding
the RICO claim. Defendants observe that the verdict form did not ask the jury to specify which predicate acts
were established with respect to which Plaintiff. Plaintiffs counter that when reviewing a decision on a
motion for judgment as a matter of law in a civil case, if any one basis for the verdict is valid, the judgment
must be affirmed. Accordingly, as they see it, the verdict for the 32 Plaintiffs stands unless Defendants negate
the possibility that the jury relied on two valid predicate acts regarding these Plaintiffs. Simply put, they say,
Defendants must show the evidence is insufficient with respect to six of the seven acts, rather than just one
act.
Plaintiffs' argument is closer to the mark, because courts treat a motion for judgment as a matter of
law differently than they do a motion for new trial. In Richards v. Michelin Tire Corp., 21 F.3d 1048 (11th
Cir.1994), we refused to order a JNOV against a plaintiff on its negligence claim even though we found
insufficient evidence regarding one of the plaintiff's theories of negligence. As we explained:
[T]he need to discredit one as opposed to all of the claims depends on the type of verdict
rendered and the motion made, i.e., whether Appellant is seeking JNOV or a new trial. King v. Ford
Motor Co., 597 F.2d 436, 439 (5th Cir.1979). In other words, the fact that Richards lumped his
negligent design and negligent failure to warn claims into one cause of action and did the same with
his wanton design and wanton failure to warn claims is of no consequence.
With respect to each cause of action, the jury's verdict was a general verdict. Because the
jury returned a general verdict, to be entitled to JNOV on either the wantonness or negligence cause
of action, Appellant must show that Richards failed to make out a case under both his design and
warning claims. Thus, with regard to the JNOV motion, the "two-issue" rule applies.
However, the "two-issue" rule is inapplicable to a motion for a new trial as Appellant, with
respect to each cause of action, need only show that the evidence is insufficient to support either one
of Richards' claims to prevail on its motion for a new trial. [See ] Royal Typewriter Co. v.
Xerographic Supplies Corp., 719 F.2d 1092, 1099 (11th Cir.1983) ("[U]nless [plaintiff] can support
submission of each theory of liability submitted to the jury, we must remand for a new trial.").
Where, as here, two or more claims are submitted to the jury in a single interrogatory, a new trial may
be required if either of the claims was erroneously submitted, as there is no way to be sure that the
jury's verdict was not predicated solely on the invalid claim.
21 F.3d at 1054-55 (citations and footnotes omitted).
Here, there is no indication in Defendants' briefs, and we find no indication in the record, that
Defendants properly moved for a new trial on the ground that these 32 Plaintiffs failed to prove the existence
of two or more predicate acts. Defendants sought entry of judgment in their favor, but did not move for a new
trial on this (or any other) basis. Accordingly, because the jury's decision on Plaintiffs' civil RICO claim was
tantamount to a general verdict (in that the jury did not break down the particular predicate acts giving rise
to liability), Defendants are not entitled to reversal and entry of judgment in their favor unless they totally
negate the possibility that the verdict rested on two valid predicate acts; in other words, they must show that
the evidence was insufficient to prove six of the seven types of acts alleged by the Plaintiffs.22
Defendants completely fail to negate the possibility that the verdict in favor of these 32 Plaintiffs
rested on sufficient evidence of two or more predicate acts.23 Defendants contend that four of the alleged
predicate acts—money laundering, receiving stolen funds, using interstate travel to launder funds, and
transporting funds taken by fraud—are not established here because even assuming that Defendants
committed these acts (something they do not squarely contest), Plaintiffs suffered no proximate injury as a
result. Defendants argue that because these offenses occurred after Plaintiffs had already made their initial
investments, the offending conduct did not proximately cause any injury.24
We disagree. Defendants cite no case law for their argument other than opinions discussing the
proximate injury requirement generally. The absence of case law for their position is not surprising. By
22
The cases cited by Defendants (which involve primarily criminal, not civil, RICO actions) are
unhelpful because in none of them did the court enter judgment for the defendant where it was possible,
but not certain, that the verdict rested on two or more valid predicate acts. Compare Brandenburg v.
Cureton, 882 F.2d 211, 214 (6th Cir.1989) (ordering new trial); United States v. Marcello, 876 F.2d
1147, 1153 (5th Cir.1989) (vacating conviction); United States v. Ruggiero, 726 F.2d 913, 921 (2d
Cir.1984) (entering judgment for defendant where all but one predicate act was insufficient, but ordering
new trial for defendant where it was possible that two predicate acts were sufficient). Defendants
themselves concede that "[w]hen there is some indication that a RICO verdict rests on two or more legally
sufficient predicate acts, then the verdict will stand even if one or more legally insufficient predicate acts
had been submitted to the jury." Appellant's Br. at 32-33. Defendants, of course, could have avoided
their present dilemma by requesting a verdict form that would have required the jury to specify which
predicate acts were proved by which Plaintiffs. See McCord, 873 F.2d at 1274.
23
Defendants contend that there is no evidence these 32 Plaintiffs were made to travel in interstate or
foreign commerce in connection with the alleged fraud; thus, these 32 Plaintiffs cannot cite that offense
as a predicate act. Plaintiffs do not dispute this contention; for the reasons discussed herein, however, the
apparent lack of evidence to support this alleged predicate act is ultimately of no moment.
24
Defendants put it this way: "[T]he basis of Plaintiffs' money laundering claim rests on the transfer
of funds AA and Signa received after Plaintiffs made their investments.... [But] by that time, Plaintiffs
had already made their investment. The same holds true for the predicate act of using interstate travel to
launder funds. Likewise, Defendants' receipt of funds that had allegedly been stolen already and their
transportation of funds that had allegedly been taken by fraud already were not the proximate cause of
any injuries." Appellants' Br. at 23 (emphasis in original).
definition, the injury caused by an offense such as money laundering cannot occur until money is received
by the perpetrator. Yet Congress has recognized that money laundering and other post-investment offenses
may constitute predicate acts causing racketeering injury for which damages may be recovered under § 1964.
See 18 U.S.C. § 1961(1)(B).
If Defendants' logic were correct, it would be difficult to imagine how these statutory offenses could
ever serve as predicate acts in civil RICO cases. Focusing on the initial decision to invest as the only possible
point of injury is misplaced. Here, money was given to the Defendants for a particular purpose (purchasing
real estate at arms-length prices, and developing and re-selling the parcels in accordance with the law and the
parties' expectations). There is substantial evidence that, rather than using the money for that purpose and
retaining any excess contributions for the partnerships' benefit, Defendants engaged in the land price fraud,
artificially inflated what the partnerships had to pay for the land, misappropriated funds under the guise of
taking expenses and commissions, and then laundered and transported the profits they made by their scheme
in order to conceal the existence of those profits from the Plaintiffs and, indeed, induce further contributions.
As a consequence, funds that should have remained available to the partnerships for the benefit of their
investors were diverted to and secretly retained by the Defendants. Defendants' money laundering and related
post-investment offenses injured the Plaintiffs by allowing Defendants to continue to deprive the Plaintiffs
of the use and benefit of that portion of Plaintiffs' investment which would have remained in the partnerships'
accounts had Defendants not engaged in self-dealing.
Asserting that Plaintiffs suffered no injury because they had already invested some money ignores
substantial record evidence demonstrating why the Plaintiff made their investment, their reasonable
expectations about the future use of that investment, and the likelihood that they would have discovered the
fraud and withdrawn their funds were it not for the money laundering and post-investment offenses. We
reiterate that Defendants do not cite any case law rejecting one of these statutory offenses as a predicate act
on the theory that the plaintiff did not suffer any injury through the misuse of his funds because some of those
funds had already been obtained by the RICO defendant.
In their reply brief, Defendants assert several additional arguments why the post-investment offenses
do not suffice to sustain the civil RICO verdict. These arguments were not fairly raised in Defendants'
opening brief and therefore we may not consider them. See, e.g., Adler v. Duval County Sch. Bd., 112 F.3d
1475, 1481 (11th Cir.1997); Braun v. Soldier of Fortune Magazine, 968 F.2d 1110, 1121 n. 13 (11th
Cir.1992). In any event, these arguments are both insufficiently developed and unpersuasive.
For example, Defendants suggest that there was no proximate cause because there is no evidence that
these 32 Plaintiffs engaged in "due diligence" regarding the status of their investments. But Defendants cite
no case adding a "due diligence" requirement to the elements of a civil RICO claim predicated on these acts.
Nor is Defendants' argument supported by the record. And Defendants' position is especially flawed in light
of the jury's finding of a fiduciary relationship between the Defendants and the Plaintiffs. This court and
others have long recognized that where such a relationship exists, any obligation of due diligence may be
excused, because the plaintiff is entitled to assume that the fiduciary is protecting his interests. See Durham
v. Business Mgmt. Assocs., 847 F.2d 1505, 1510 n. 7 (11th Cir.1988) ("the question of whether appellees in
the exercise of due diligence should have discovered the alleged violations ... requires the trier of fact to
consider ... the presence of a fiduciary relationship"); Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th
Cir.1967) ("the presence of a fiduciary relationship ... bears heavily on the issue of due diligence").
Defendants also try to recast their argument into a challenge to the specific proof of injury offered
by these 32 Plaintiffs. But contrary to Defendants' statement in their reply brief, there has been only a
cursory—and wholly unpersuasive—effort to "demonstrate[ ] that" each of "these 32 Plaintiffs did not present
any evidence that they were proximately injured" by the post-investment predicate acts. Appellants' Reply
Br. at 15 (emphasis in original).25 Having nevertheless reviewed the record ourselves, we find that there was
sufficient evidence of proximate cause to withstand a motion for judgment as a matter of law and sustain the
verdict.
As we have explained in prior civil RICO opinions, a wrongful act is "a proximate cause if it is 'a
substantial factor in the sequence of responsible causation.' " Cox v. Administrator United States Steel &
Carnegie, 17 F.3d 1386, 1399 (11th Cir.1994); see also Beck, 162 F.3d at 1097 (wrongdoing must have been
a "substantial factor" in causing the injury); Brandenburg v. Seidel, 859 F.2d 1179, 1189 (4th Cir.1988)
(stating that the inquiry in determining the existence of proximate cause is " 'whether the conduct has been
so significant and important a cause that the defendant should be held responsible' "). " 'If the defendant's
conduct was a substantial factor in causing the plaintiff's injury, it follows that he will not be absolved from
liability merely because other causes have contributed to the result, since such causes, innumerable, are
25
As noted above, Defendants' opening brief frames the issue only in broad terms, without any
reference to the evidence as it pertains to any particular Plaintiff.
always present.' " Cox, 17 F.3d at 1399 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 41, at 268 (5th ed.1984)). Viewing the record in the light most favorable to the Plaintiffs, there was
ample basis for a reasonable jury to conclude that Defendants' money laundering and three other
post-investment predicate acts were a substantial factor in perpetuating their scheme and in causing significant
injury to these Plaintiffs.26 That conclusion alone is enough to establish that the district court did not err in
rejecting Defendants' motion for judgment as a matter of law.27
I.
Finally, Defendants contend that the district court gave an incorrect instruction on the statute of
limitations. We find no reversible error.
Defendants took the position below that some or all of Plaintiffs' claims were barred by RICO's
four-year statute of limitations. See McCaleb v. A.O. Smith Corp., 200 F.3d 747, 751 (11th Cir.2000)
(discussing limitations period for civil RICO claims). To that end, Defendants proposed to the district court
a jury instruction on the statute of limitations. The instruction indicated that the statute begins to run when
a plaintiff discovers or should have discovered not only the alleged injury, but also that the injury was part
of the alleged pattern of racketeering. The jury did not find a violation of the statute of limitations.
Shortly before Defendants filed their brief with this Court, the Supreme Court in Rotella v. Wood,
528 U.S. 549, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) ruled that the limitations period for a civil RICO
action begins to run when the injury was or should have been discovered, regardless of whether or when the
injury is discovered to be part of a pattern of racketeering. 120 S.Ct. at 1080. Defendants now assert that,
under Rotella, Plaintiffs' claims are bared by the statute of limitations, or alternatively we should remand for
26
Defendants cite this Court's opinions in Beck and Pelletier. Neither is helpful. In Pelletier, we
found that the predicate act of bankruptcy fraud did not proximately cause the plaintiff's injury, because
the allegedly improper bankruptcy filing actually benefitted the plaintiff. 921 F.2d at 1498 ("we are
simply at a loss to understand how a stockholder could be injured when his insolvent company is placed
under the protection of Chapter 11"). It can hardly be said that Defendants' money laundering and related
offenses benefitted the Plaintiffs. In Beck, we found no proximate cause—only "but for"
causation—where the plaintiff made nothing more than generalized allegations that he would not have
invested with the Defendants if he had known about their illegal activities. 162 F.3d at 1097. We
emphasized that the plaintiff offered no evidence that a factor in his decision-making was a belief that the
company was run legally. Id. Here, by contrast, there is sufficient evidence that the Plaintiffs would not
have invested initially, retained their investments thereafter, or made additional contributions if they had
known of Defendants' misconduct. For this and other reasons, Beck, like Pelletier, does not entitle
Defendants to judgment as a matter of law.
27
Although we need not reach the issue, we observe in passing that we are unconvinced, viewing the
record in the light most favorable to the prevailing parties, by Defendants' arguments that these 32
Plaintiffs did not produce sufficient evidence to establish mail and wire fraud as predicate acts.
a new trial during which the jury may be properly instructed.
No remand is warranted on this issue. Because Defendants did not object to the jury instruction they
now challenge, we review only for plain error. That standard is extremely difficult to meet, especially with
respect to jury instructions in a civil case.
Plain error review is an extremely stringent form of review. Only in rare cases will a trial court be
reversed for plain error.... We have interpreted the ... test strictly in the context of erroneous jury
instructions.... [R]eversal for plain error in the jury instructions or verdict form will occur only in
exceptional cases where the error is so fundamental as to result in a miscarriage of justice. To meet
this stringent standard, a party must prove that the challenged instruction was an incorrect statement
of the law and [that] it was probably responsible for an incorrect verdict, leading to substantial
injustice. This element is satisfied if a party proves that the instruction will mislead the jury or leave
the jury to speculate as to an essential point of law. In other words, the error of law must be so
prejudicial as to have affected the outcome of the proceedings.
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329-30 (11th Cir.1999) (citations and internal quotation
marks omitted).
Defendants fail to show that this is an "exceptional" civil case warranting relief on appeal. To begin
with, having requested the (incorrect) instruction given by the district court, Defendants cannot now seek
reversal on that basis. In Wood v. President & Trustees of Spring Hill College, 978 F.2d 1214 (11th
Cir.1992), we found no plain error where the appellant's requested instructions mirrored the very instruction
that she sought to challenge on appeal. We observed that "[f]ederal courts generally will not find that a
particular instruction constitutes plain error if the objecting party invited the alleged error by requesting the
substance of the instruction given." Id. at 1223 (citing Equal Employment Opportunity Comm'n v. Mike Smith
Pontiac GMC, Inc., 896 F.2d 524, 528 (11th Cir.1990) and Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530
n. 4 (11th Cir.1985)).
Defendants contend that this "invited error" rule is inapplicable where the instruction is rendered
incorrect by an intervening change in the governing law. They say that Rotella constitutes such a change in
the law. The problem, however, is that Defendants had reasonable grounds for declining to propose—and,
if necessary, stating an objection to—the "injury and pattern" instruction that instead they asked the court to
give. Although a panel of the Eleventh Circuit had endorsed the "injury and pattern" approach, other Circuits
had taken a contrary view. Accordingly, at a minimum Defendants could have left it to the Plaintiffs or the
district court to propose the "injury and pattern" instruction, and then in good faith asserted an objection to
it with an eye toward arguing for a more favorable standard before this Court on en banc review or before
the Supreme Court on a petition for certiorari. We therefore do not view this case as an appropriate one to
carve out an exception to the invited error rule. See United States v. Tandon, 111 F.3d 482, 489 (6th
Cir.1997) (applying invited error rule where in light of Circuit split the appellant "invited the error when
requesting the instruction because, at the time of his trial, an objection to a[n] instruction like the one he had
requested would not necessarily have been futile").
In addition, Defendants have not met their heavy burden of showing that the district court's
instruction was "probably responsible for an incorrect verdict." Farley, 197 F.3d at 1330. Plaintiffs fairly
assert that the parties' statute of limitations arguments focused primarily on the question of injury, not pattern,
with Defendants claiming that Plaintiffs should have been aware more than four years prior to filing suit on
June 17, 1997 of the facts supporting their allegations that Defendants pilfered their funds in the land price
fraud and continued to misuse those funds thereafter. Moreover, Plaintiffs observe that the jury rejected
Defendants' statute of limitations argument with respect to the fraud and breach of fiduciary duty claims, even
though those causes of action have similar four-year limitations periods and do not have a pattern
requirement. Defendants offer no persuasive rejoinder to these points, other than to stress that we cannot be
certain today how the jury would have ruled if a proper instruction had been given. That is true insofar as
it goes, but the plain error standard requires a much stronger showing of uncertainty, and Defendants fail to
establish that the incorrect instruction probably caused the jury to decide the statute of limitations issue
differently than it otherwise would have. We conclude, in short, that there was no reversible error on this
issue.
For all of the foregoing reasons, we affirm the district court's entry of judgment in Plaintiffs' favor.
AFFIRMED.