United States v. Anthony Michael D'Amico

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
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No. 20-13320
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY MICHAEL D'AMICO,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cr-80179-JIC-1
____________________
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2 Opinion of the Court 20-13320
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No. 21-10752
Non-Argument Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY MICHAEL D'AMICO,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cr-80179-JIC-1
____________________
Before WILSON, NEWSOM, and BLACK, Circuit Judges.
PER CURIAM:
Anthony D’Amico appeals (1) the district court’s denial of
his motion for a new trial and an evidentiary hearing following his
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20-13320 Opinion of the Court 3
convictions for wire fraud and money laundering, based on Giglio
and Brady 1 violations and on newly discovered evidence that a
Government witness was under investigation for fraud, under Fed.
R. Crim. P. 33; (2) the court’s determination the loss amount ex-
ceeded $2,700,000; (3) the court’s failure to sua sponte order a mis-
trial because a juror might have seen a defense witness get arrested
after testifying; and (4) the court’s order of restitution without a
jury finding. After review, we affirm the district court.
I. MOTION FOR A NEW TRIAL
A. Giglio
To prove a Giglio violation—which is a subset of Brady vio-
lations—the defendant must show: “(1) the prosecutor knowingly
used perjured testimony or failed to correct what he subsequently
learned was false testimony; and (2) such use was material i.e., that
there is any reasonable likelihood that the false testimony could
have affected the judgment.” United States v. Stein, 846 F.3d 1135,
1147 (11th Cir. 2017) (quotation marks omitted).
D’Amico’s Giglio claim fails because, regardless of material-
ity, D’Amico’s motion for a new trial did not explain how Fernando
Mendez’s fraud resulted in Mendez’s testimony being false, and he
did not identify any specific statements by Mendez that were alleg-
edly false. See id. Based on the argument D’Amico made to the
1 Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83(1963).
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district court in his motion for a new trial, the court did not abuse
its discretion by denying his Giglio claim. See United States v. Val-
lejo, 297 F.3d 1154, 1163 (11th Cir. 2002) (reviewing a district
court’s denial of a Rule 33 motion for a new trial, including those
where the motion is based on a Brady or Giglio violation or newly
discovered evidence, for an abuse of discretion).
B. Brady
In a criminal proceeding, the Due Process Clause of the Fifth
Amendment requires the government to produce all evidence,
upon request, that is favorable to the accused. Brady, 373 U.S. at
87. To establish a Brady claim, a defendant must show: (1) the gov-
ernment possessed evidence favorable to the defendant, including
impeachment evidence; (2) the defendant did not possess the evi-
dence, nor could he have obtained it himself with any reasonable
diligence; (3) the government suppressed the favorable evidence;
and (4) had the evidence been disclosed to the defense, a reasonable
probability exists the outcome of the proceedings would have been
different. United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir.
2001). Evidence is material if there is a reasonable probability that
a different result would have occurred had the evidence been dis-
closed. Kyles v. Whitley, 514 U.S. 419, 433 (1995).
The district court did not abuse its discretion by denying
D’Amico’s Brady claim. When Mendez testified and the jury re-
turned its verdict on November 7, 2019, the only information that
could have been known to the Government about Mendez was
that a subpoena had been drafted, but had not been served, for
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20-13320 Opinion of the Court 5
Mendez Digital as part of the McNeal case. Thus, the only thing
the Government could have disclosed to D’Amico would have
been that Mendez’s company was somehow related to the McNeal
case. D’Amico would not have been able to cross-examine Mendez
about the subpoena, or the health care fraud, because Mendez
would not have known about either at the time he testified.
D’Amico’s arguments that Mendez somehow knew about the
McNeal case and would have understood he was under investiga-
tion for health care fraud at the time of his testimony is speculative,
and this speculation is not enough to support his arguments that
he would have presented a more robust defense and attacked Men-
dez’s credibility.
Additionally, the Government had a strong case against
D’Amico. For example, Alan Redmond testified D’Amico got him
to switch from buying leads from Exact Media Match (EMM) to
Fuel Avenue. Soyoung Ham testified that D’Amico’s Invoca log-
in credentials were logged in at the time and on the page where the
direct inward dial (DID) numbers for eHealth, VelaPoint, and HII
were changed. Nicholas Karabetsos testified that D’Amico paid
and registered the ehealthinsuranceservice.com e-mail domain,
which was listed in Invoca as eHealth’s contact information despite
Brian Taylor’s testimony that it had a different e-mail domain.
These examples, among many others, combined with the jury’s
ability to believe that the opposite of D’Amico’s own testimony
was true, shows the court did not abuse its discretion by determin-
ing the information about Mendez was not material. See United
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States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (stating when a
defendant takes the stand and testifies in his own defense, the jury
may disbelieve his testimony, and he runs the risk that if disbe-
lieved the jury might conclude the opposite of his testimony is
true).
Next, D’Amico cannot show that, had the Government dis-
closed information about Mendez, the result of his sentencing
would have been different. When D’Amico was sentenced on Au-
gust 25, 2020, the only thing the Government would have known
about Mendez was that a criminal information alleging health care
fraud was filed against him a month prior. D’Amico argues this
information would have somehow affected the court’s calculation
of the loss amount and its decision to impose an enhancement for
obstructing justice but does not explain how it would have affected
it, and he did not explain how in his motion for a new trial. Thus,
D’Amico does not show the court abused its discretion by deter-
mining the result of his sentencing would not have been different
if he had known that Mendez had been indicted for health care
fraud.
C. Rule 33
To justify the grant of a new trial under Fed R. Crim. P. 33
based on newly discovered evidence, a movant must satisfy four
elements: “(1) the evidence must be newly discovered and have
been unknown to the defendant at the time of trial; (2) the evidence
must be material, and not merely cumulative or impeaching;
(3) the evidence must be such that it will probably produce an
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20-13320 Opinion of the Court 7
acquittal; and (4) the failure to learn of such evidence must be due
to no lack of due diligence on the part of the defendant.” United
States v. Sjeklocha, 843 F.2d 485, 487 (11th Cir. 1988).
D’Amico cannot satisfy the materiality element of his Brady
claim, which means he also cannot satisfy Rule 33’s materiality el-
ement. These tests share a common materiality element that ad-
dresses what effect the withheld exculpatory evidence or newly dis-
covered evidence had on the defendant’s case. In order of the dif-
ficulty of meeting these materiality elements, Rule 33’s materiality
standard is more difficult to prove than Brady’s. Compare
Sjeklocha, 843 F.2d at 487 (stating Rule 33 evidence must probably
produce an acquittal), with Hansen, 262 F.3d at 1234 (stating Brady
standard is whether a reasonable probability exists that the out-
come of the proceedings would have been different).
D. Evidentiary Hearing
Lastly, the district court did not abuse its discretion by
denying D’Amico’s motion for an evidentiary hearing. See United
States v. Isaacson, 752 F.3d 1291, 1308 (11th Cir. 2014) (reviewing
the denial of a motion for an evidentiary hearing for an abuse of
discretion). Motions for a new trial are typically decided without
an evidentiary hearing, and D’Amico’s allegations did not require
an evidentiary hearing. See United States v. Hamilton, 559 F.2d
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1370, 1373 (5th Cir. 1977) 2 (explaining motions for new trial are
ordinarily decided without an evidentiary hearing, but hearings are
appropriate for allegations of jury tampering, prosecutorial mis-
conduct, or a third-party confession); United States v. Espinosa-
Hernandez, 918 F.2d 911, 913-14 (11th Cir. 1990) (allowing an evi-
dentiary hearing where it was discovered that a government agent
who testified was indicted for making false statements and distrib-
uting cocaine because it involved “serious and disturbing breaches
of the public trust”).
Accordingly, we affirm the district court’s denial of
D’Amico’s motion for a new trial based on Rule 33, Brady, and Gi-
glio, and its denial of D’Amico’s motion for an evidentiary hearing.
II. LOSS AMOUNT
The government has the burden to prove the losses at-
tributed to the defendant by a preponderance of the evidence. See
United States v. Cavallo, 790 F.3d 1202, 1232 (11th Cir. 2015). Loss
is calculated as the greater of actual loss or intended loss. U.S.S.G.
§ 2B1.1, comment. (n.3(A)). Actual loss is the “reasonably foresee-
able pecuniary harm that resulted from the offense.” Id. § 2B1.1,
comment. (n.3(A)(i)).
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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20-13320 Opinion of the Court 9
The court did not clearly err by determining D’Amico
caused a loss amount of $2,700,000. See Cavallo, 790 F.3d at 1232
(reviewing a district court’s determination of the loss amount for
clear error). Jeremy Attick, All Web Leads’ (AWL) vice president
of business development and former vice president of sales, testi-
fied that EMM lost approximately $3,000,000 in business based on
the rerouted leads, and Jessica Lopez, AWL’s director of finance
and CPA, testified that during her due diligence of AWL’s acquisi-
tion of EMM she discovered eHealth, VelaPoint, and HII each had
outstanding invoices and the total amount lost was $2,767,000. Be-
cause the court stated it relied on Lopez’s testimony when deter-
mining the loss amount, it did not clearly err by finding the Gov-
ernment proved the loss amount by a preponderance of the evi-
dence.
Even if these figures are hypothetical, the guidelines permit
the actual loss amount to be a reasonable estimate of the loss. See
id. (stating the guidelines do not require that the sentencing court
make a precise determination of loss, and a sentencing court need
only make a reasonable estimate of the loss, given the available in-
formation). Accordingly, the district court did not clearly err by
determining the Government proved the loss amount by a prepon-
derance, and we affirm.
III. MISTRIAL
Plain error review applies because D’Amico did not object
on this basis in the district court. See United States v.
Nash, 438 F.3d 1302, 1304 (11th Cir. 2006) (explaining issues raised
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for the first time on appeal are reviewed for plain error). Even if it
was erroneous for the court to not sua sponte grant a mistrial be-
cause one juror might have seen Steven Harbison get arrested, that
error would not be plain because no precedent supports that prop-
osition. See United States v. Lange, 862 F.3d 1290, 1296 (11th Cir.
2017) (stating “there can be no plain error where there is no prece-
dent from the Supreme Court or this Court directly resolving it”).
Thus D’Amico cannot meet the plain error standard, and we af-
firm.
IV. RESTITUTION
Apprendi held that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submit-
ted to a jury, and proved beyond a reasonable doubt.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). Apprendi does not apply to
restitution orders because the restitution statute, 18 U.S.C. § 3663,
does not have a prescribed statutory maximum. Dohrmann v.
United States, 442 F.3d 1279, 1281 (11th Cir. 2006). Southern Un-
ion held that Apprendi applies to criminal fines, but did not address
restitution. Southern Union Co. v. United States, 567 U.S. 343, 350
(2012).
Plain error applies because D’Amico did not raise an Ap-
prendi issue when he objected to the restitution amount. Even if
it was erroneous for the court to order restitution without a jury
finding, any error would not be plain. Under Dohrmann, Apprendi
does not apply to restitution orders. The court would have had no
indication that Southern Union abrogated Dohrmann because
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Southern Union did not address restitution. Thus, D’Amico can-
not meet the plain error standard and we affirm. See Lange, 862
F.3d at 1296.
AFFIRMED.