United States v. Raphael Levy

Case: 12-13234 Date Filed: 03/20/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13234
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20290-PCH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAPHAEL LEVY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 20, 2013)
Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Appellant Raphael Levy appeals his convictions on five counts of financial
instrument fraud, in violation of 18 U.S.C. § 514(a)(1)-(2), arguing that the
evidence adduced at his trial did not support the conclusion that he possessed the
requisite criminal intent. Levy took the stand and admitted to having created and
issued five fictitious money orders purporting to draw on United States Treasury
accounts. However, as an adherent to the “Redemption Theory,” which is
premised on the purported bankruptcy of the federal government and elimination
of the gold standard in the 1930’s, Levy testified that he genuinely believed he was
entitled to create money orders drawing on funds held on his behalf by the United
States Treasury and, therefore, he did not willfully violate the law. On appeal, he
contends that: (1) the money orders he created were so “clearly bogus on their
face” that he could not possibly have intended to deceive; and (2) because the
money orders were issued to pay the debts of others—namely, his girlfriend and
her father—he would not have directly benefited from the offenses, even if the
money orders were accepted and cashed as authentic.
Where, as here, a defendant moves for judgment of acquittal under
Fed.R.Crim.P. 29(a) at the close of the evidence, we review de novo the
sufficiency of the evidence necessary to support a conviction. See United States v.
Acosta, 421 F.3d 1195, 1197 (11th Cir. 2005). We take the evidence in the light
most favorable to the government and resolve any conflicts in its favor. United
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States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). In assessing the
sufficiency of the evidence, “the issue is not whether a jury reasonably could have
acquitted but whether it reasonably could have found guilt beyond a reasonable
doubt.” Id. at 1285 (internal quotation marks omitted). Finally, we assume that
the jury made credibility choices in a way that supports the verdict. Id.Importantly, “a statement by a defendant, if disbelieved by the jury, may be
considered as substantive evidence of the defendant's guilt.” United States v.
Brown, 53 F.3d 312, 314 (11th Cir. 1995) (emphasis omitted).
To obtain a conviction under 18 U.S.C. § 514(a), the government must prove
three elements: (1) the defendant did or attempted to draw, print, process, produce,
publish, or otherwise make a false or fictitious instrument, document, or other item
within the United States; (2) the fictitious instrument, document, or item appeared,
represented, purported, or contrived through scheme or artifice, to be an actual
security or other financial instrument issued under the authority of the United
States; and (3) the defendant acted with the intent to defraud. 18 U.S.C.
§ 514(a)(1). “Intent to defraud has often been defined as the specific intent to
deceive or cheat, for the purpose of either causing some financial loss to another,
or bringing about some financial gain to one's self.” United States v. Klopf, 423
F.3d 1228, 1240 (11th Cir. 2005) (internal quotation marks omitted). 1
1
Klopf dealt with the “intent to defraud element ” under 18 U.S.C. §§ 1028 and 1029,
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Where Congress focuses on the fraudulent intent of the violator in a criminal
statute, the negligence of the victim in failing to discover a fraudulent scheme
cannot be a defense to criminal conduct. See United States v. Svete, 556 F.3d
1157, 1161-66 (11th Cir. 2009) (en banc) (rejecting defendant’s argument that
conviction for mail fraud under 18 U.S.C. § 1341 required proof of a scheme
calculated to deceive a person of ordinary prudence). In other words, “[a] fanciful
scheme may nonetheless be a scheme to defraud. Id. at 1162. Moreover, a party is
no less culpable for a fraudulent scheme if he intends the benefits of the fraud to
accrue to third parties. See United States v. Sorich, 523 F.3d 702, 709-11 (7th Cir.
2008) (rejecting appellant’s argument that a fraudulent scheme to benefit third
parties could not support a conviction under honest services mail fraud statute, 18
U.S.C. § 1346).
Here, we conclude from the record that the evidence adduced at trial
supported Levy’s convictions. The government presented evidence, and Levy
himself admitted, that he deliberately created and attempted to pass fictitious
instruments under the authority of the United States, leaving only the issue of
criminal intent in question. Although he testified that he had acted in good faith
and without the intent to defraud, a number of circumstances presented at trial
rather than 18 U.S.C. § 514. This Court has not specifically addressed the meaning of “intent to
defraud” under § 514, but Levy has provided no reason to suggest that Klopf’s definition ought
not to apply thereunder. In any event, the district court’s charge, to which Levy did not object,
was entirely consistent with Klopf.
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pointed to the opposite: (1) he never received a response from the Secretary of
Treasury regarding his supposed accounts; (2) none of the money orders he drafted
was ever successfully cashed by a payee; (3) he used his girlfriend’s address on
several blank money orders rather than his prison post office number; (4) he
erroneously labeled several blank money orders as “special,” privileged mail; (5)
he created authentic Treasury investment accounts after he was being investigated
for fraud; (6) and he admitted to having lied by pleading guilty in his prior
convictions. The jury was free to disbelieve Levy’s testimony regarding good
faith, particularly in light of this evidence, and to consider his statements as
substantive evidence of his intent to defraud. Brown, 53 F.3d at 314.
Levy’s two arguments on appeal do not undermine the jury’s verdict. First,
he now claims that no reasonable person could have believed the money orders
were authentic, yet this is belied by the extremely detailed steps he took to create
the instruments at issue, and conflicts with his testimony at trial that he genuinely
intended the money orders to be received in payment for various obligations.
Furthermore, for purposes of criminal liability, it is the intent of the offender that
matters, not the reasonableness of his efforts. See Svete, 556 F.3d at 1161-66.
Equally unavailing is Levy’s second contention that any reasonable inference of
intent is barred because he was not the intended beneficiary of the fictitious money
orders. All but one of the money orders at issue related to Patricia Escobar’s
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condominium, which, according to Levy’s testimony at trial, he considered to be
his own. In any event, the intent to defraud does not require a personal benefit.
See Sorich, 523 F.3d at 709-11.
For the reasons stated above, sufficient evidence was presented at trial from
which the jury could conclude beyond a reasonable doubt that Levy possessed the
requisite intent to defraud in this case and was therefore guilty of financial
instrument fraud under 18 U.S.C. § 514(a). Accordingly, we affirm his
convictions.
AFFIRMED.
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