United States v. Jacob Ben-Ari

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14019
Non-Argument Calendar
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D.C. Docket No. 2:08-cr-00160-JES-DNF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACOB BEN-ARI,
a.k.a. Jack Levinson,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 5, 2013)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Jacob Ben-Ari appeals his convictions for two counts of mail fraud, in
violation of 18 U.S.C. § 1341. In a superseding indictment, the government
alleged that Ben-Ari had engaged in a scheme to defraud by creating fraudulent
quit claim and warranty deeds purporting to transfer certain real properties
identified in the indictment to Ben-Ari’s company, JBA Assets, and then selling
those properties to unwitting third parties. The indictment alleged that two title
companies had mailed two checks representing the proceeds of two separate sales
to JBA Assets. The government presented evidence at trial that the title companies
had mailed those checks to Ben-Ari via the U.S. Postal Service and Airborne
Express.
At trial, Ben-Ari moved for a Federal Rule of Criminal Procedure Rule 29
judgment of acquittal, arguing that the government had failed to establish that he
had used the mails in furtherance of the fraud. The district court denied this
motion, and the jury found Ben-Ari guilty of both mail fraud counts. At Ben-Ari’s
initial sentencing hearing, the court granted Ben-Ari permission to represent
himself at sentencing, continued the hearing, and then remanded Ben-Ari into
custody after finding that it could not be established by clear and convincing
evidence that he was not a flight risk or a danger to the community if released.
The court thereafter granted several continuances and granted some of Ben-Ari’s
motions for documents and records he claimed he needed to prepare for
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sentencing. At his sentencing, Ben-Ari filed legal documents, cross-examined
witnesses, and successfully argued that the district court should reduce the loss
amount attributable to him. Both prior to and at sentencing, Ben-Ari had
repeatedly requested that he be released from detention or be permitted to obtain
certain documents from his home, and he complained that his detention was
impacting his ability to represent himself at sentencing.
On appeal, Ben-Ari argues that the district court erred by not dismissing the
indictment because there was insufficient evidence presented at trial to show that
the mails were used in furtherance of the fraud. He also argues that the scheme to
defraud was complete when the title companies received the proceeds of the sales.
Next, he contends that the district court erred by remanding him into custody prior
to sentencing and that the district court violated his constitutional rights by
preventing him from obtaining all the documents he desired. After a careful
review of the record, we affirm.
I.
We review the denial of a motion to dismiss an indictment for abuse of
discretion. United States v. Torres, 318 F.3d 1058, 1061 n.6 (11th Cir. 2003). We
review de novo the district court’s denial of a Rule 29 motion for judgment of
acquittal, viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences in favor of the jury’s verdict. United States v.
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Hunt, 526 F.3d 739, 744 (11th Cir. 2008). Evidence is sufficient to sustain a
conviction if “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Id. at 745. This standard does not require
the evidence to be “inconsistent with every reasonable hypothesis other than guilt,”
and we permit the jury to choose from several reasonable conclusions that could be
drawn from the evidence. Id. Reasonable inferences from circumstantial evidence
can support the conviction. United States v. Capers, 708 F.3d 1286, 1297 (11th
Cir. 2013).
A criminal indictment must contain the elements of the offense intended to
be charged, and it must sufficiently apprise the defendant of the charges against
him. United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006). If the
indictment tracks the language of the statute to notify the defendant of the charges
against him, it must also include a statement of the facts and circumstances to
describe the specific conduct at issue. Id.The elements of mail fraud are (1) an intentional participation in a scheme to
defraud a person of money or property, and (2) the use of the mails in furtherance
of the scheme. Id. The use of the mails need not be an essential element of the
scheme at issue, and, instead, it is enough for the mailing “to be incident to an
essential part of the scheme or a step in the plot.” United States v. Hill, 643 F.3d
807, 858 (11th Cir. 2011) (quotation omitted). Mailings that occur after a scheme
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has reached fruition are not in furtherance of the scheme. Id. Where the defendant
already has taken possession of the object of the fraud and the fraud is at an end,
further mailings are not used in furtherance of the fraudulent scheme. United
States v. Smith, 934 F.2d 270, 272 (11th Cir. 1991). Nevertheless, where the
defendant profited from an impermissible contract, the scheme does not reach
fruition until the defendant has received the checks resulting from the contract.
United States v. Hasner, 340 F.3d 1261, 1267-68, 1272 (11th Cir. 2003).
To the extent that Ben-Ari argues that the district court should have
dismissed the indictment itself, the district court did not err by refusing to do so
because the indictment sufficiently charged Ben-Ari with the essential elements of
mail fraud. To the extent that Ben-Ari argues that the district court should have
granted his Rule 29 motion for judgment of acquittal at trial, the district court did
not err by declining to do so because the evidence presented at trial was sufficient
for the jury to conclude that the mails were used in furtherance of the fraud. See
Hill, 643 F.3d at 858. By presenting evidence that Title Offices and Progressive
Title mailed the proceeds from two of the fraudulent sales of property to Ben-Ari
via the U.S. Postal Service and Airborne Express, the government sufficiently
established that the mails were used in furtherance of the fraud. And, contrary to
Ben-Ari’s arguments, the scheme did not reach fruition until Ben-Ari received the
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funds because the goal of the scheme was to fraudulently enrich Ben-Ari. See
Hasner, 340 F.3d at 1272.
II.
We review de novo constitutional challenges. Hunt, 526 F.3d at 743. 1
District court orders remanding a defendant into custody present mixed questions
of law and fact subject to de novo review on appeal. United States v.
Quartermaine, 913 F.2d 910, 915 (11th Cir. 1990).
Under the Due Process Clause, a criminal defendant has the right to defend
himself against criminal charges. Chambers v. Mississippi, 410 U.S. 284, 294,
93 S. Ct. 1038, 1045 (1973). This right includes, at minimum, a right to examine
witnesses, a right to testify, and a right to be represented by counsel. Id. at 294-95,
93 S. Ct. at 1045; see also Washington v. Texas, 388 U.S. 14, 18-19, 87 S. Ct.
1920, 1922-23 (1967) (holding that due process requires the defendant to be given
reasonable notice of the charges against him and an opportunity to be heard in his
defense, which includes the rights listed in Chambers). When a defendant argues
that a district court violated his right to present a defense, we must determine
(1) whether the right was actually violated, and (2) whether the error was harmless
1
Contrary to the government’s argument, Ben-Ari sufficiently presented his
constitutional challenges below and preserved his challenges through his numerous filings before
the district court. Therefore, we will not review Ben-Ari’s constitutional challenges for plain
error. Cf. United States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012) (“[W]here a defendant
‘raises [an] issue for the first time on appeal, we review it only for plain error.’” (quoting United
States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010))), cert. denied, 133 S. Ct. 1633 (2013).
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beyond a reasonable doubt. United States v. Hurn, 368 F.3d 1359, 1362-64 (11th
Cir. 2004). The Supreme Court also has held that the prisoners have a
constitutional right of access to the courts, which requires that the access to the
courts be “adequate, effective, and meaningful.” Bounds v. Smith, 430 U.S. 817,
821-22, 97 S. Ct. 1491, 1494-95 (1977). We have held, however, that “the inmate
must show that this inability [to access the courts] caused an actual harm, or in
other words, unconstitutionally prevented him from exercising that fundamental
right of access to the courts in order to attack his sentence or to challenge the
conditions of his confinement.” Akins v. United States, 204 F.3d 1086, 1090 (11th
Cir. 2000).
Pursuant to 18 U.S.C. § 3143(a), the district court “shall order” detention for
a defendant who has been found guilty of an offense and who is awaiting
imposition of a sentence unless the court “finds by clear and convincing evidence
that the person is not likely to flee or pose a danger to the safety of” another person
or the community. 18 U.S.C. § 3143(a)(1). The court may only order the
defendant released upon such a finding. Id.To the extent that Ben-Ari argues that his right to present a defense or that
his right to access the courts was violated, his challenge fails because he has failed
to argue or show that he suffered actual harm. See Hurn, 368 F.3d at 1362-64;
Akins, 204 F.3d at 1090. Ben-Ari has not identified any specific additional
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documents that he sought access to, demonstrated any potential impact that any
documents may have had at sentencing, or made any showing of how he was
harmed. Cf. Hurn, 368 F.3d at 1363 (“A defendant’s right under the Fifth and
Sixth Amendments to present a defense “‘is violated when the evidence excluded
is material in the sense of a crucial, critical, highly significant factor.’” (quoting
United States v. Ramos, 933 F.2d 968, 974 (11th Cir. 1991))). Additionally, after
Ben-Ari presented his legal arguments at sentencing, the district court reduced his
total offense level based on a substantially lowered loss-amount determination.
Finally, to the extent that Ben-Ari argues that the district court should not have
remanded him into custody, this argument fails because Ben-Ari did not meet his
burden to establish by clear and convincing evidence that he was not likely to flee
or to pose a danger to others given his immigration status, his prior experiences
living abroad, and the fact that his children reside abroad. See 18 U.S.C.
§ 3143(a)(1).
III.
Upon review of the record and after consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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