United States v. Danyel Michelle Witt

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10557
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANYEL MICHELLE WITT,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cr-00077-TKW-MJF-8
____________________
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2 Opinion of the Court 21-10557
Before NEWSOM and MARCUS, Circuit Judges, and MIDDLEBROOKS, ∗
District Judge.
NEWSOM, Circuit Judge:
Danyel Witt was indicted, tried, convicted, and sentenced to
28 months’ imprisonment for her part in a broader scheme to de-
fraud the federal government out of relief funds intended for farm-
ers affected by drought and fire. She challenges both her convic-
tion and her sentence. As to her conviction, she contends that the
evidence preponderated against a guilty verdict such that the dis-
trict court abused its discretion when it denied her motion for a
new trial. As to her sentence, she asserts that her bottom-of-the-
Guidelines term of imprisonment is substantively unreasonable.
Neither argument is persuasive. We affirm.
I
A
The United States Department of Agriculture administers a
relief program known as the Livestock Forage Disaster Program
(“LFP”), which provides benefits to livestock producers for losses
caused by drought or fire on grazing lands. In 2016, Holmes
County, Florida experienced a drought, and farmers in that area
became eligible for LFP benefits. When that happened, Duane
Crawson—whose position as the County Executive Director for
∗Honorable Donald M. Middlebrooks, United States District Judge for the
Southern District of Florida, sitting by designation.
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21-10557 Opinion of the Court 3
the Farm Service Agency put him in charge of overseeing the LFP’s
administration—cooked up a scheme. Leveraging his position,
Crawson recruited people to file false claims on the understanding
that they’d pay him a kickback. All in, Crawson admitted to steal-
ing around $400,000 from the government.
Witt was one of the individuals Crawson recruited into his
scheme. She admitted to receiving a total of $9,661 of federal
funds. The money arrived in two payments—the first was for
$2,885, relating to an LFP application in Witt’s name; the second
for $6,776, relating to an application in the name of Sayge Evans,
Witt’s then-18-year-old daughter.
On the first application, Witt claimed a 100% ownership
stake in 50 adult cows and bulls, 15 non-adult cows and bulls that
were 500 pounds or more, and 45 goats. Thomas Graham—Witt’s
stepfather—was listed as the owner of the land, and Witt was listed
as the tenant and “producer.” Although it’s uncontested that Witt
received the funds, the application that the government introduced
into evidence was unsigned.
Witt’s mother, Brinel Graham, testified that Witt lived on
the Grahams’ farm in 2017. She also testified that, although the
Grahams owned goats and donkeys, Witt didn’t own—nor did she
have permission to claim that she owned—any of the livestock on
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4 Opinion of the Court 21-10557
the farm. She also testified that there were no cows on the prop-
erty.
The second application—submitted under Evans’s name—
claimed 100% ownership in 115 adult cows and bulls and 40 non-
adult cows and bulls that were 500 pounds or more. Evans testi-
fied, however, that she didn’t own any of the livestock listed on the
application (or any livestock at all, for that matter). Evans also de-
nied ever representing that she owned any livestock and claimed
that she never received (nor was she aware of) the $6,776 payment
that the government issued.
Relatedly, Evans testified that her mother had encouraged
her to apply for a job working for Crawson. Although she wasn’t
interested in the job, she agreed to apply for it because she thought
her mother “was helping [her].” Included in her application, which
was dated August 3, 2017, Evans provided her social security num-
ber and address.
According to Evans’s testimony, “a week or two” after she
submitted her application, her mother brought her back to Craw-
son’s office. When they got there, Crawson came to the parking
lot where he and Witt talked for several minutes. During that con-
versation, Witt handed Evans a form, which Evans signed while
holding it in her lap. Although Evans thought the form was related
to her job application, it was actually an income-verification form
necessary for the LFP application. Evans testified that it was com-
pleted—including her address and social security number—in
somebody else’s handwriting. And although she didn’t
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immediately recognize it when asked on the witness stand, she ul-
timately agreed that her signature was on the form.
Crawson pleaded guilty and acted as a cooperating witness
for the government. He testified that Witt approached him and
asked about the livestock program after she had seen his Facebook
post explaining it. According to Crawson, he helped Witt submit
her first application soon after that conversation, even though he
knew that she didn’t qualify for the program. He further testified
that she returned to ask him to file a second claim, this time in Ev-
ans’s name. In helping her with that application, he testified that
he “filed the false claim in Sayge Evans’ name” using her social se-
curity number that was provided by “her mother, Danyel Witt.”
Moreover, he stated that he was the one who had filled out the
above-mentioned income-verification form, using Evans’s “name,
address, [and] Social Security number,” which “Ms. Witt gave
[him].” And he described watching Evans sign the income-verifi-
cation form in the parking lot outside his office, corroborating Ev-
ans’s testimony.
Unlike the rest of the participants in Crawson’s scheme,
Witt didn’t pay him a kickback. Crawson testified that, because he
“knew that [she] needed the money way more than [he] did,” he
didn’t ask for his typical payment.
Witt testified in her own defense. She denied asking about
the LFP funds and instead claimed that Crawson had approached
her and suggested it. She admitted that she had agreed to submit
the first application in her name without informing her parents, but
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that she had done so on Crawson’s assurance that she was qualified
to receive the funds. She also admitted that she received the funds
after submitting the application.
Witt testified that she and Crawson never discussed submit-
ting a separate application in Evans’s name. Instead, she claimed
that she was first made aware of Evans’s application “a long while
after” by government investigators. She denied ever taking Evans
to Crawson’s office and supported that testimony with cell-phone
tracking records. She insisted that both Crawson and Evans were
lying when they testified to the contrary. But while she denied
knowing about the second application, she admitted that she had
received a second direct deposit from the government in early Sep-
tember. And she confirmed that Crawson didn’t receive any of the
$9,661 that the government sent her.
B
In 2019, Witt was indicted for her part in the scheme.1 Spe-
cifically, she was indicted for (1) conspiracy to commit wire fraud
(Count One), (2) theft of government funds (Counts Seven and
Nine), and (3) aggravated identity theft (Count Ten).
Along with two codefendants, Witt chose to go to trial. 2 Alt-
hough the jury acquitted both of her codefendants, the jury found
Witt guilty on all four counts as charged. Following the trial, she
1 In total, the indictment included 38 Counts and named 29 defendants.
2 The remaining defendants all pleaded guilty.
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filed a motion for a new trial and a motion for acquittal, both of
which the district court denied. The Presentence Investigation Re-
port calculated her Guidelines imprisonment range as 8 to 14
months on Counts One, Seven, and Nine, plus a mandatory-mini-
mum sentence of 24 months on Count Ten—which is statutorily
required to run consecutively—bringing her total Guidelines range
to 32 to 38 months’ imprisonment. PSR at 51.
Included in the Guidelines calculation was an obstruction-
of-justice enhancement, to which Witt objected. See id. at 44. Af-
ter hearing argument on that enhancement, the district court sus-
tained Witt’s objection. That lowered her Guidelines range to 4 to
10 months on Counts One, Seven, and Nine, reducing the total
range to 28 to 34 months. The district court sentenced her to a
bottom-of-the-Guidelines sentence of 28 months.
At her sentencing hearing, Witt—who suffers from serious
health problems—requested “house arrest” as a “substitute punish-
ment.” But the district court determined that it had “no discretion”
with regard to that term of imprisonment. It concluded that it
lacked the “authority to” substitute house arrest for imprisonment
as to the aggravated identity-theft charge. But it clarified that, if it
did have “some discretion” to alter the sentence, the “prison com-
ponent [of the] sentence . . . wouldn’t have been 24 months.”
Witt appeals her conviction and sentence. First, she con-
tends that the weight of the evidence preponderated in favor of a
not-guilty verdict and, therefore, that the district court reversibly
erred when it denied her motion for a new trial. Second, she asserts
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8 Opinion of the Court 21-10557
that her sentence is substantively unreasonable because the district
court should have sentenced her to house arrest rather than a tra-
ditional prison sentence. We will address those arguments in turn.
II
A
Witt asserts that the district court should have granted her a
new trial because “[t]he weight of the evidence preponderated . . .
in favor of [a] not guilty verdict.”3 Federal Rule of Criminal Proce-
dure 33 provides that “[u]pon the defendant’s motion, the court
may vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a). 4 In doing so, the court
3 “The decision to grant or deny a new trial motion based on the weight of the
evidence is within the sound discretion of the trial court.” United States v.
Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). We will “reverse only if [we]
find[] the decision to be a clear abuse of that discretion.” Id.4We note at the outset that the government appears to misunderstand Witt’s
argument. Although the government divides its response into two parts—
purporting to address the sufficiency of the evidence first (which we don’t
think Witt challenges) before asserting, as a “[s]econd” argument, that “the
evidence did not preponderate heavily against the jury’s verdict”—it conflates
the analyses. See Brief of Gov’t at 39 (stating that the “evidence did not pre-
ponderate heavily against the jury’s verdict” before citing cases “discussing the
sufficiency of the evidence standard” and repeating the standard for how a
court should “determin[e] if there was sufficient evidence to support a jury’s
verdict”). To be clear, those two inquiries are not the same. See Martinez,
763 F.2d at 1312–13. Indeed, granting a motion for a new trial occurs—albeit
“rare[ly]”—precisely when the evidence is “legally sufficient” to convict.
United States v. Brown, 934 F.3d 1278, 1298 (11th Cir. 2019) (quotation omit-
ted). But because we may affirm the district court’s judgment on any ground
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21-10557 Opinion of the Court 9
“may weigh the evidence and consider the credibility of the wit-
nesses.” United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir.
1985). But Rule 33 isn’t an invitation for the court to “reweigh the
evidence and set aside the verdict simply because it feels some
other result would be more reasonable.” Id. at 1312–13. Instead,
to warrant a new trial, the “evidence must preponderate heavily
against the verdict, such that it would be a miscarriage of justice to
let the verdict stand.” Id. at 1313. That happens only “in the ‘rare’
‘case in which the evidence of guilt although legally sufficient is
thin and marked by uncertainties and discrepancies.’” United
States v. Brown, 934 F.3d 1278, 1298 (11th Cir. 2019) (quoting
Butcher v. United States, 368 F.3d 1290, 1297 n.4 (11th Cir. 2004));
accord Martinez, 763 F.2d at 1313 (“[C]ourts have granted new trial
motions based on weight of the evidence only where the credibility
of the government’s witnesses had been impeached and the gov-
ernment’s case had been marked by uncertainties and discrepan-
cies.”).
Witt contends that the motion for a new trial should have
been granted (1) because Crawson—the government’s star wit-
ness—“was shown to be . . . compromised by his facing 180 years
on 38 charges of conviction” and because he offered “conflicting[]
and contradictory statements in sworn testimony,” and (2) because
supported by the record, that error isn’t fatal to the government’s bottom-line
position. See Long v. Commissioner, 772 F.3d 670, 675 (11th Cir. 2014) (per
curiam).
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the evidence against her “was thin.” Br. of Appellant at 38–39. Nei-
ther contention is persuasive.
i
Witt’s first-line argument hinges on Crawson’s unreliability
as a witness. First, she asserts that Crawson was “damaged” be-
cause he cooperated with the government. Thus, she contends, his
testimony was inherently unreliable because he “had significant
reason to testify and to lie and to implicate others.” Br. of Appel-
lant at 34. We disagree. As an initial matter, Witt introduced all of
that information as impeachment evidence at trial for the jury to
consider. More to the point, it simply can’t be that any time the
government uses a cooperating witness, that witness’s testimony
itself constitutes a ground for a new trial.
Moreover, Crawson’s testimony was corroborated by Witt’s
daughter. Evans testified that Witt encouraged her to fill out a
form with all of her personal-identifying information, took her to
Crawson’s office, and handed her what she later learned was a tax
form necessary to complete the fraud, and that Witt then gave the
form back to Crawson. Witt’s only defense on the stand was that
both Crawson and Evans were lying, which she attempted to sup-
port with some questionable phone-tracking data. The jury cred-
ited Evans’s and Crawson’s testimony over Witt’s, and, of course,
“credibility determinations are the exclusive province of the jury.”
United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (al-
teration adopted and quotation omitted). Although the district
court was permitted to consider Crawson’s and Evans’s credibility
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21-10557 Opinion of the Court 11
in its new-trial determination, to give their statements weight (as
the jury did) was not an abuse of discretion. See Martinez, 763 F.2d
at 1312.
Witt also complains that Crawson “changed his testimony
and contradicted statements made under oath.” Br. of Appellant at
31. And, as already explained, inconsistent testimony is a ground
on which a district court might properly grant a new trial. See, e.g.,
Martinez, 763 F.2d at 1312–13. But Witt provides only one pur-
ported instance of “Crawson chang[ing] his sworn testimony,” and
it isn’t persuasive. At trial, Crawson testified that Witt had “men-
tioned” to him “that she had s[een] a Facebook post that [he] had
put on there explaining the livestock program,” and that, after dis-
cussing the details, “she said that she wanted to sign up for the pro-
gram.” That testimony, Witt asserts, conflicts with one of Craw-
son’s earlier statements, in which he claimed that Witt was “[o]ne
of the first conspirators” that he “directly solicited.” Her argument
fails for any of several reasons.
First, those statements aren’t plainly inconsistent. It’s en-
tirely possible that Crawson meant that he had “solicited” Witt by
way of his Facebook page, or that—as he represented when asked
on cross-examination—he had solicited her “[d]uring the conversa-
tion” he had referenced on direct examination. Second, Witt had
the opportunity to expose any inconsistency and impeach Crawson
on cross examination, which she attempted to do. Third, and fi-
nally, even if the jury had believed Witt’s side of the story—that
Crawson solicited her rather than the other way around—it would
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not have undercut any of the elements required to prove her guilt.
See generally, United States v. Maxwell, 579 F.3d 1282, 1299 (11th
Cir. 2009) (providing the elements of a wire-fraud charge); United
States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir. 2013) (same for
conspiracy to commit wire fraud); United States v. Wilson, 788
F.3d 1298, 1309 (11th Cir. 2015) (same for theft of government
funds); United States v. Barrington, 648 F.3d 1178, 1192 (11th Cir.
2011) (same for aggravated identity theft).
Allowing the verdict to stand in the face of that arguable in-
consistency—of which the jury was made aware, and which
doesn’t bear on an element of the conviction—is not “a miscarriage
of justice.” Martinez, 763 F.2d at 1313.
ii
Witt next asserts that the evidence against her “was thin”
because her daughter’s testimony “was questionable,” the “claim
forms were unsigned,” and her phone-tracking information
demonstrated that she never went to Crawson’s office to have Ev-
ans sign the income-verification form. Witt asserts that Evans’s
testimony was “questionable” because she didn’t immediately rec-
ognize her signature on the income-verification form. But that is-
sue was explained by both Evans and Crawson—she signed it with-
out having anything to bear down on. And Evans plainly stated
that she remembered signing the form.
It’s true that Government Exhibit 1—the LFP application in
Witt’s name—is unsigned. But even if Witt never signed the form,
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21-10557 Opinion of the Court 13
that doesn’t overcome the mountain of evidence indicating that
she otherwise participated in the scheme. For example, she testi-
fied that she gave Crawson all of the necessary information, signed
the income-verification form, received and spent the money, and
thanked Crawson for helping her get it. That the application was
unsigned doesn’t sufficiently undermine the evidence supporting
her conviction such that it would be a miscarriage of justice to al-
low the verdict to stand. Martinez, 763 F.2d at 1313.
Finally, the jury’s verdict isn’t fatally undermined by the
phone-tracking data that, according to Witt, show that Evans and
Crawson were lying on the stand when they testified that Witt
brought Evans to Crawson’s office. As Witt’s expert acknowl-
edged, the tracking information only reveals the location of a de-
vice—not the location of its owner. Moreover, at Witt’s sentenc-
ing hearing, her expert conceded that the tracker showed that Witt
“was in the vicinity of the Farm Services” building on August 31,
and that based on the “data points,” there was enough time for
“someone to hand a series of pieces of paper through a driver’s side
window, a signature be obtained, and the paper be handed back.”
The tracking information does not sufficiently call into question
Evans’s and Crawson’s testimony such that it would be a miscar-
riage of justice to allow the verdict to stand.
* * *
The weight of the evidence does not preponderate against a
guilty verdict in this case. Therefore, the district court did not
abuse its discretion when it denied Witt’s motion for a new trial.
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B
Next, Witt contends that the sentence the district court im-
posed is substantively unreasonable. We disagree. 5
A district court imposes a substantively unreasonable sen-
tence “when it (1) fails to afford consideration to relevant factors
that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judg-
ment in considering the proper factors.” United States v. Osorio-
Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016) (quotation omitted).
On appeal, we should “vacate the sentence if, but only if, we are
left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) fac-
tors by arriving at a sentence that lies outside the range of reason-
able sentences dictated by the facts of the case.” Id. (quotation
omitted).
The statutory minimum for an Aggravated Identity Theft
conviction is “a term of imprisonment of 2 years.” 18 U.S.C.
§ 1028A(a)(1). And that term must run consecutively “with any
other term of imprisonment imposed on the person under any
other provision of law.” Id. § 1028A(b)(2). Taking that statutorily
mandated sentence along with the bottom-of-the-Guidelines sen-
tence for Witt’s other convictions, the district court sentenced Witt
5“We review the substantive reasonableness of a sentence for an abuse of dis-
cretion.” United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir.
2016).
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21-10557 Opinion of the Court 15
to 28 months’ imprisonment. Witt does not assert that the overall
length of the sentence is unreasonable. Instead, she contends only
that the district court abused its discretion because it should have
imposed home detention as a substitute “for at least a portion . . .
of the 28-month custodial prison sentence.” Br. of Appellant at 47. 6
Witt’s argument is based on § 5C1.1(d)(2) of the Sentencing
Guidelines. That section provides that “[i]f the applicable guideline
range is in Zone C of the Sentencing Table, the minimum term
6 A quick clarification: District courts only “impose a term of imprisonment.”
18 U.S.C. § 3582(a) (emphasis added). “The implementation of [that sentence]
is governed by the provisions of subchapter C of chapter 229,” id. § 3586,
which states that, once a “person . . . has been sentenced to a term of impris-
onment” by the court, the person “shall be committed to the custody of the
Bureau of Prisons,” id. § 3621(a). Once in the BOP’s custody, “[t]he [BOP]
shall designate the place of the prisoner’s imprisonment.” Id. § 3621(b). Thus,
a district court does not have the authority to dictate whether a sentence is to
be served in prison or in home confinement—that is left to the BOP. See
United States v. Cintron-Fernandez, 356 F.3d 340, 345–46 (1st Cir. 2004) (ob-
serving that “the district court may have exceeded its own authority in order-
ing the [BOP] to substitute home confinement”).
Accordingly, we think that Witt means to argue that the district court
should have reduced her two-year sentence and ordered home confinement
as a condition of supervised release for the remainder of the term—not that it
should have kept the two-year sentence intact but ordered the BOP to fulfill
part of it via home detention. And to the extent that Witt intends to challenge
the district court’s recommendation as to where she must fulfill that two-year
term, we lack jurisdiction to review it. See United States v. Martin, 877 F.3d
1035, 1036 (11th Cir. 2017) (per curiam) (agreeing with the “other circuits” that
the district court’s “non-binding recommendations” to the BOP “are not ‘final
decisions’ and, therefore, are not reviewable on appeal”).
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may be satisfied by . . . a sentence of imprisonment that includes a
term of supervised release with a condition that substitutes . . .
home detention . . . provided that at least one-half of the minimum
term is satisfied by imprisonment.” U.S.S.G. § 5C1.1(d)(2). Thus,
Witt contends that the district court abused its discretion because
“home detention is authorized and would be appropriate for” her.
As an initial matter, Witt’s argument rests on a faulty prem-
ise because she misunderstands where her sentence falls on the sen-
tencing table. Taking her 24-month statutorily mandated sentence
together with her Guidelines range of 4 to 8 months, her “applica-
ble guideline range” is 28 to 32 months. See U.S.S.G. § 5C1.1. That
“applicable guideline range” falls within Zone D—not Zone C—of
the sentencing table. See id. Ch. 5, Pt. A. And that eviscerates her
only argument: “If the applicable guideline range is in Zone D of
the Sentencing Table”—as opposed to a lesser Zone—“the mini-
mum term shall be satisfied by a sentence of imprisonment.” Id.
§ 5C1.1(f).
In any event, even if Witt’s argument established that the
district court had discretion to reduce the term of imprisonment
and impose home confinement as a condition of supervised release,
she cites no authority to support the conclusion that the district
court abused that discretion. Instead, she cites the general notion
that “[t]he party challenging the sentence bears the burden of es-
tablishing that the sentence is unreasonable in the light of both the
record and the 3553(a) factors.” Br. of Appellant at 45 (citing United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam)).
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21-10557 Opinion of the Court 17
But, after acknowledging that burden, Witt never mentions the
§ 3553(a) factors or explains how the court committed reversible
error when it considered them. Accordingly, she has failed to carry
her “burden of establishing that the sentence is unreasonable in the
light of both th[e] record and the factors in [§] 3553(a).” Talley, 431
F.3d at 788.
* * *
The district court did not abuse its discretion when it denied
Witt’s motion for a new trial. Neither did it abuse its discretion
when it imposed a bottom-of-the-Guidelines sentence of 28
months’ imprisonment.
AFFIRMED.