United States v. Laurence Isaacson

Case: 11-14287 Date Filed: 05/22/2014 Page: 1 of 34

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 11-14287
________________________

D.C. Docket No. 1:08-cr-20071-AJ-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAURENCE ISAACSON,

Defendant-Appellant.

________________________

No. 12-14703
________________________

D.C. Docket No. 1:08-cr-20071-JAL-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAURENCE ISAACSON,
 Case: 11-14287 Date Filed: 05/22/2014 Page: 2 of 34

Defendant-Appellant.

________________________

Appeals from the United States District Court
for the Southern District of Florida
________________________

(May 22, 2014)

Before MARTIN, FAY, and SENTELLE, * Circuit Judges.

MARTIN, Circuit Judge:

Laurence Isaacson was convicted after a jury trial on account of his

participation in a conspiracy to commit securities fraud in violation of 18 U.S.C.

§ 371. He was sentenced to 36-months imprisonment and ordered to pay $8

million in restitution. In this consolidated appeal, Mr. Isaacson challenges his

conviction, his sentence, and the District Court’s denial of his motion for a new

trial. After careful review, and with the benefit of oral argument, we affirm Mr.

Isaacson’s conviction and the District Court’s denial of his motion for a new trial,

but vacate his sentence and remand with instructions for resentencing.

I. Background

A. The Criminal Conspiracy

This case arises out of a complex scheme designed to defraud investors

through a group of hedge funds we will call the Lancer Fund. At the core of the

*
Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia,
sitting by designation.
2
 Case: 11-14287 Date Filed: 05/22/2014 Page: 3 of 34

criminal enterprise were Michael Lauer, Martin Garvey, and Eric Hauser, all of

whom had ownership interests in the Lancer Fund. Also central to the scheme was

Bruce Cowen, who served as the Lancer Fund’s managing director.

The fraud charged in this case began in earnest in late 1999, when the

Lancer Fund began investing in publicly traded shell companies, or companies that

typically had no real assets or business operations. Once the Lancer Fund

controlled the shell companies, it drove up the share prices by buying stock in the

companies at artificially inflated prices. This caused the shell companies to appear

much more valuable than they really were. By the conspiracy’s end, these

worthless and overpriced shell companies made up the majority of the Lancer

Fund’s investment portfolio. Among the shell companies the Lancer Fund

invested in were ServiceMax of America (SMX), Augment Systems (AUG), and

Nu-D-Zine, each of which Mr. Isaacson helped the Lancer Fund acquire and

manage.

Investors had no way to know what the Lancer Fund was doing because it

did not disclose the companies in which it invested. This policy prevented

investors from verifying for themselves the value and performance of the Lancer

Fund. Instead, investors generally depended on evaluations given by Lancer Fund

managers and to some extent on annual audits by independent auditors.

3
 Case: 11-14287 Date Filed: 05/22/2014 Page: 4 of 34

Mr. Isaacson’s criminal involvement with the conspiracy began when the

Lancer Fund’s auditors became suspicious about the value of the shell companies

in the investment portfolio and sought support for their assigned market value. In

an effort to placate the auditors, Mr. Cowen sought valuations in early 2002 from

consultants corroborating the market value of the companies. One of the

consultants was Milton Barbarosh, who shared an office with Mr. Isaacson in

Florida.

At first, Mr. Barbarosh was not sure how he would fulfill Mr. Cowen’s

request, because “there was no basis to show that the value of the companies were

worth anywhere near the value of the public market.” Eventually, Mr. Barbarosh

decided that he could evaluate the shell companies by producing hypothetical

valuations based on future business plans that were not intended to be

implemented. Mr. Barbarosh shared this fraudulent plan with Mr. Isaacson, who

reported that he had already suggested the idea to Mr. Cowen, and Mr. Cowen had

said that it “would be fine if [Mr. Barbarosh did] the reports on that basis.” Mr.

Barbarosh testified that he told Mr. Isaacson that the purpose of the valuations was

to support the market price of the companies, and that he “probably” summarized

the rest of the conversation with Mr. Cowen for Mr. Isaacson.

With a plan in place, Mr. Barbarosh began work on the valuation reports for

SMX and Nu-D-Zine. To do that, he needed some model business plans that he

4
 Case: 11-14287 Date Filed: 05/22/2014 Page: 5 of 34

could say were being implemented at the companies. Mr. Isaacson agreed to help

and found two plans with figures that would allow Mr. Barbarosh to come close to

the market value. Neither of these plans was ever actually going to be

implemented at either SMX or Nu-D-Zine.

Mr. Barbarosh completed the valuations consistent with Mr. Cowen’s

request and sent him the final reports, which were dated May 23 and June 7, 2002. 1

After Mr. Barbarosh sent the last of the reports, Mr. Isaacson spoke with Mr.

Cowen and passed the message along to Mr. Barbarosh that “the reports were

great, and that the auditors had accepted them.” The record does not indicate when

exactly the Lancer Fund sent the reports to the auditors.

Messrs. Isaacson and Barbarosh were also involved in similar efforts to

produce inflated valuations in 2003. Investors eventually became suspicious,

however, in part because the auditors had not issued a report about the Lancer

Fund’s 2001 performance by 2003. In an effort to stave off investors’ attempts to

withdraw their money—which the Lancer Fund did not have—the Lancer Fund

continued to misrepresent its performance to investors and encourage them to

accept redemption in the form of Lancer Fund securities as opposed to cash.

1
Mr. Barbarosh also produced a false valuation report for AUG, but Mr. Isaacson apparently did
not provide a business plan to assist in the production of that report. The AUG report was dated
May 3, 2002.
5
 Case: 11-14287 Date Filed: 05/22/2014 Page: 6 of 34

Mr. Isaacson was indicted, along with Messrs. Lauer, Garvey, Hauser, and

Barbarosh, on January 29, 2008. The indictment charged the co-conspirators with

conspiracy to commit wire, mail, and securities fraud, in violation of 18 U.S.C.

§ 371 (Count One), and six counts of wire fraud, in violation of 18 U.S.C. §§ 1343

and 2 (Counts Two through Seven). Mr. Cowen was charged separately.

B. The Prosecution

Due in large part to three continuances, which were granted at various

defendants’ requests, Mr. Isaacson was not brought to trial until spring of 2010. In

March 2010, the District Court began jury selection based on prospective jurors’

responses to written questionnaires, which the parties had helped to prepare. The

delay between indictment and Mr. Isaacson’s trial prompted him to file a Speedy

Trial Act motion to dismiss on April 19, 2010, which the District Court denied.

After a lengthy trial, Mr. Isaacson was convicted of conspiracy to commit

securities fraud, as charged in Count One. The District Court dismissed Count

Seven before submitting the case to the jury; the jury acquitted Mr. Isaacson of

Counts Two, Three, and Four; and did not reach a verdict on Counts Five and Six.

Ultimately, Messrs. Hauser, Cowen, and Barbarosh pleaded guilty based on their

involvement in the scheme. Messrs. Lauer and Garvey were, however, acquitted

after a jury trial.

6
 Case: 11-14287 Date Filed: 05/22/2014 Page: 7 of 34

C. Sentencing

Mr. Isaacson’s presentence investigation report (PSR) noted that his offense

corresponded to a base offense level of 6, and also recommended that the Court

impose the following enhancements: a 20-level loss amount enhancement,

pursuant to United States Sentencing Guidelines (USSG) § 2B1.1(b)(1)(K); a 4-

level number of victims enhancement, pursuant to USSG § 2B1.1(b)(2)(B); a 2-

level sophisticated means enhancement, pursuant to USSG § 2B1.1(b)(9)(C); and a

4-level enhancement pursuant to USSG § 2B1.1(17)(A)(ii), because Mr. Isaacson

was licensed with the Securities and Exchange Commission at the time he

committed the offense. These enhancements brought Mr. Isaacson’s offense level

to 36, which corresponded to a guideline range of 188- to 235-months

imprisonment. The statutory maximum sentence for a violation of 18 U.S.C. § 371

is 60-months imprisonment.

Mr. Isaacson objected to the loss amount enhancement, the number of

victims enhancement, and the sophisticated means enhancement, and also objected

to the lack of a 2-level minor role reduction pursuant to USSG § 3B1.2(b). At

sentencing, Mr. Isaacson’s loss amount objection proved the most controversial,

and ultimately drove the guideline calculation.

The PSR attributed a loss of $15 million to Mr. Isaacson based on an

investment Morgan Stanley made on June 28, 2002. The District Court eventually

7
 Case: 11-14287 Date Filed: 05/22/2014 Page: 8 of 34

agreed with the attribution, after much deliberation. In sentencing Mr. Isaacson,

the District Court defined his agreement to participate in the conspiracy narrowly,

as a conspiracy to defraud the auditors. Despite this narrow definition, the District

Court concluded that by defrauding the auditors, Mr. Isaacson participated in the

broader conspiracy that caused Morgan Stanley to make its investment.

This loss amount enhancement brought Mr. Isaacson’s guideline range

above the maximum sentence permitted by his statute of conviction, and so the

Court declined to rule on the remainder of Mr. Isaacson’s objections. The Court

ultimately sentenced Mr. Isaacson to 36-months imprisonment, a downward

variance from his 60-month guideline range. Cf. USSG § 5G1.1(a) (“Where the

statutorily authorized maximum sentence is less than the minimum of the

applicable guideline range, the statutory authorized maximum sentence shall be the

guideline range.”). The District Court also ordered Mr. Isaacson to pay $8 million

in restitution to Morgan Stanley. This was the amount of loss the Court found the

government proved at sentencing.

D. The Rule 33 Motion

About two years after Mr. Isaacson’s conviction, he filed a motion pursuant

to Federal Rule of Criminal Procedure 33 seeking a new trial, as well as an

evidentiary hearing, based on newly discovered evidence about an alleged

prosecutorial conflict of interest. Mr. Isaacson asserted his discovery that the lead

8
 Case: 11-14287 Date Filed: 05/22/2014 Page: 9 of 34

prosecutor’s wife was a shareholder at the firm representing Mr. Barbarosh, one of

the primary witnesses against Mr. Isaacson. The attorney who represented Mr.

Isaacson at trial filed an affidavit explaining that, had he known about this conflict

of interest, he would have “employed different trial tactics . . . , especially with

regard to cross-examination of Mr. Barbarosh and [the] closing argument.”

The government filed a response, which included an affidavit from the

prosecutor’s wife. The prosecutor’s wife explained that although she was once a

shareholder with the firm, at the time of Messrs. Barbarosh and Isaacson’s

prosecution she was not. Rather, she was employed as a part-time contract

attorney at that time, and was paid an hourly wage. She explained that she was not

a member of Mr. Barbarosh’s defense team and did not have any contact with the

lead counsel assigned to Mr. Barbarosh’s case. The government’s response also

noted that the prosecutor had disclosed his wife’s employment to his supervisors,

who concluded there was no need for recusal because there was no actual conflict

or an appearance of one. Given the lack of any appearance of conflict, the

government maintained that recusal was not required and that information about

the conflict was not subject to disclosure.

The District Court denied Mr. Isaacson’s request for an evidentiary hearing

and a new trial, finding “no conflict of interest or Brady[ v. Maryland, 373 U.S. 83,

83 S. Ct. 1194 (1963),] violation warranting a new trial.” To the conflict of

9
 Case: 11-14287 Date Filed: 05/22/2014 Page: 10 of 34

interest issue, the District Court emphasized that the wife was not actually a

shareholder at the firm at the time of the representation. On the Brady issue, the

Court found the wife’s employment gave no additional incentive for Mr. Barbarosh

to lie on the stand beyond that already explored during cross examination. The

Court thus concluded that the information had no material impact on the outcome

of Mr. Isaacson’s prosecution.

E. This Appeal

This is a consolidated appeal, including Mr. Isaacson’s direct appeal from

his conviction and sentence as well as his appeal from the denial of his Rule 33

motion based on his charge of prosecutorial conflict. Mr. Isaacson makes the

following arguments on appeal: (1) his conduct lies outside the scope of conduct

punishable under 18 U.S.C. § 371; (2) the District Court should have granted his

motion to dismiss for Speedy Trial Act violations; (3) the government failed to

prove an overt act within the statute of limitations; (4) the evidence is insufficient

to support the conviction; (5) his sentence is unreasonable because the loss and

restitution amounts are not sufficiently attributable to his participation in the

conspiracy, and because he was ordered to serve a much longer sentence and pay

much more restitution than any of his more culpable co-defendants; and (6) his

motion for a new trial should have been granted. We address each argument in

turn.

10
 Case: 11-14287 Date Filed: 05/22/2014 Page: 11 of 34

II. The Scope of 18 U.S.C. § 371

We first address Mr. Isaacson’s argument that 18 U.S.C. § 371 does not

reach his conduct because the Lancer Fund made the investments through a hedge

fund based in the British Virgin Islands. Mr. Isaacson relies upon the holding in a

civil case, Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S. Ct. 2869

(2010), to argue that his criminal conviction based on violations of the Securities

Exchange Act cannot survive because the transactions were based outside the

United States. The issue Mr. Isaacson raises—whether the criminal statute reaches

his conduct—is subject to de novo review. United States v. Lopez-Vanegas, 493

F.3d 1305, 1311 (11th Cir. 2007).

To begin, it has never been established in this Circuit that Morrison limits

the scope of criminal liability for violations of the Securities Exchange Act to the

same extent it limits the scope of civil liability. 2 We need not explore that question

in this appeal. That is because, even if we assume here that it does, Mr. Isaacson’s

conviction is still due to be affirmed.

In Morrison, the Supreme Court applied the presumption against

extraterritoriality, a tool of statutory construction limiting a statute’s applicability

to domestic conditions unless the statute gives a “clear indication of an

2
The Second Circuit—which is, to our knowledge, the only other Circuit Court to have
considered Morrison’s effect on criminal cases involving a conspiracy to commit securities
fraud—has fully applied Morrison’s holding to criminal cases. See United States v. Vilar, 729
F.3d 62, 72 (2d Cir. 2013).
11
 Case: 11-14287 Date Filed: 05/22/2014 Page: 12 of 34

extraterritorial application.” 561 U.S. at 255, 130 S. Ct. at 2877–78. The Supreme

Court held that the scope of civil liability based on the Securities Exchange Act is

limited to cases in which the defendant committed a fraud “in connection with the

purchase or sale of a security listed on an American stock exchange,” or in

connection with the purchase or sale of any other security that took place in the

United States. Id. at 273, 130 S. Ct. at 2888. If the conduct underlying the claim

does not meet at least one of these requirements, then under Morrison, there can be

no civil liability. Id.

We have no trouble concluding that Mr. Isaacson’s conduct meets

Morrison’s requirements for a U.S. nexus. The government’s expert witness

analyzed the SMX, 3 AUG, and Nu-D-Zine securities and testified that they all

“traded on the Over-the-Counter Bulletin Board or the Pink Sheets.” The expert

explained that these exchanges are “similar to” the NYSE and the NASDAQ,

which are both American markets. Beyond that, there was evidence that the

Lancer Fund was “run out of New York City” and that Mr. Isaacson’s office was

located in Florida, which supports the inference that the Lancer Fund purchased the

securities in the United States. This evidence is enough to satisfy Morrison’s

conditions.

3
Which, it is worth remembering, is shorthand for ServiceMax of America, strongly suggesting
that its securities trade on American exchanges.
12
 Case: 11-14287 Date Filed: 05/22/2014 Page: 13 of 34

III. The Speedy Trial Act Motion

We next address Mr. Isaacson’s argument that the District Court should have

granted his motion to dismiss under the Speedy Trial Act. His challenge turns on

the question of whether eliminating prospective jurors based only on their answers

to written questionnaires before they make any personal appearance in Court

constitutes part of voir dire. This is a question of law which we review de novo.

United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003) (“We review a

claim under the Speedy Trial Act de novo and review a district court’s factual

determinations on excludable time for clear error.” (quotation marks omitted)).

The Speedy Trial Act generally requires a federal criminal trial to

“commence within seventy days” of the defendant’s indictment or initial

appearance, whichever is later. 18 U.S.C. § 3161(c)(1). The seventy-day

requirement is tempered to some extent by a number of exclusions which extend

the time the government has to bring a defendant to trial. Id. § 3161(h).

The remedy for a violation of the seventy-day provision is mandatory

dismissal upon the defendant’s motion. Id. § 3162(a)(2). If, however, the

defendant fails to move for enforcement of his Speedy Trial Act rights “prior to

trial,” he is deemed to have waived his rights and the remedy of dismissal is no

longer available to him, even if the trial technically violates the Act’s

requirements. Id. We have said that trial begins for purposes of the Speedy Trial

13
 Case: 11-14287 Date Filed: 05/22/2014 Page: 14 of 34

Act “when the court begins the voir dire.” United States v. Gonzalez, 671 F.2d

441, 443 (11th Cir. 1982). But this begs the question now before us—when (again,

for purposes of the Speedy Trial Act) does voir dire begin?

Mr. Isaacson argues that the Speedy Trial clock began to run on March 6,

2008, when Mr. Garvey made his initial appearance. See 18 U.S.C. § 3161(c)(1)

(noting that the Speedy Trial Act clock is triggered when the indictment is filed or

when the defendant makes an appearance in the court in which he is being charged,

whichever is later); United States v. Mathis, 96 F.3d 1577, 1579 n.1 (“In a multiple

defendant case, the speedy trial clock begins to run when the last codefendant is

indicted or arraigned.”). 4 The District Court granted three continuances at different

co-defendants’ requests and also held a hearing on a motion for reconsideration,

which Mr. Isaacson joined. Each of these events arguably extended the time the

government had to bring Mr. Isaacson to trial. See 18 U.S.C. § 3161(h)(7)(A)

(noting that the period of delay resulting from a continuance is excludable “if the

judge granted such continuance on the basis of his findings that the ends of justice

served by taking such action outweigh the best interest of the public and the

defendant in a speedy trial”); id. § 3161(h)(1)(D) (noting that the delay resulting

from any pretrial motion is excludable “from the filing of the motion through the

4
Mr. Lauer did not make his initial appearance until March 13, 2008, but the government
acknowledges that his initial appearance may not be counted against Mr. Isaacson because the
delay was the result of the transportation of Mr. Lauer from another judicial district in the United
States. See 18 U.S.C. § 3161(h)(1)(F) (addressing excludable time due to transportation delays).
14
 Case: 11-14287 Date Filed: 05/22/2014 Page: 15 of 34

conclusion of the hearing on, or other prompt disposition of, such motion”). Based

on his view that the time resulting from these delays was not wholly excludable,

Mr. Isaacson filed a Speedy Trial Act motion on April 19, 2010.

After careful consideration, we conclude that Mr. Isaacson’s motion to

dismiss was properly denied because it was filed after his trial had already begun.

In reaching this conclusion, we agree with the District Court’s decision that jury

selection based on written responses is part of the voir dire process, at least once

the District Court begins ruling on opposed challenges to particular jurors. The

District Court began discussing with counsel the responses to the juror

questionnaires on March 18, 2010, and the parties identified several jurors they

jointly agreed should be struck for cause or hardship. The District Court

announced that it would eliminate several of those agreed-upon prospective jurors,

which the Court characterized as “the beginning of jury selection.” This process

continued on March 23, when the District Court excluded several more prospective

jurors for which there was a consensus, and excused at least one juror over the

government’s opposition. Mr. Isaacson did not file his Speedy Trial Act motion

until April 19, 2010. This being the case, Mr. Isaacson’s motion was untimely,

even though jurors did not appear for oral examination until April 26. 5

5
The District Court’s decision about the start of trial led it to deny the motion to dismiss based
on its merits instead of its timeliness. This makes no difference here. The District Court could
just as easily have decided the issue on the same timeliness grounds we do today, and we may
15
 Case: 11-14287 Date Filed: 05/22/2014 Page: 16 of 34

Mr. Isaacson may well be right when he posits that the common

understanding of voir dire is jurors being examined under oath in the courtroom

where the judge, the defendant, and the government can decide who should be

placed on the jury based on the content of the jurors’ answers as well as their

demeanor. See Reynolds v. United States, 98 U.S. 145, 156–57 (1878) (“[T]he

manner of the juror while testifying is oftentimes more indicative of the real

character of his opinion than his words. That is seen below, but cannot always be

spread upon the record.”). But this limited definition of voir dire cannot withstand

a broader consideration of the discretion vested in District Courts for developing

procedures for jury selection.

We have long recognized that District Courts have considerable discretion in

deciding how best to pick a jury. This includes deciding who should ask questions

of the prospective jurors; what the questions should be; and most important here,

how they should be asked. See, e.g., United States v. Tegzes, 715 F.2d 505, 507

(11th Cir. 1983). The only limit on this discretion this Court has articulated is that

the District Court’s chosen methods must create a “reasonable assurance that

prejudice would be discovered if present,” id. (quotation mark omitted). Of

affirm for any reason supported by the record. United States v. Al-Arian, 514 F.3d 1184, 1189
(11th Cir. 2008) (per curiam).
16
 Case: 11-14287 Date Filed: 05/22/2014 Page: 17 of 34

course, the selection process must also comply with Federal Rule of Criminal

Procedure 24, which addresses jury selection.

Written questionnaires are now a common complement to oral examination

when selecting an effective and impartial jury. As the Second Circuit observed not

too long ago, courts “routinely employ questionnaires to facilitate voir dire in a

number of circumstances.” United States v. Quinones, 511 F.3d 289, 299 (2d Cir.

2007) (italics omitted) (finding that written questionnaires can be used as part of

the voir dire process, although outside the Speedy Trial Act context). With this in

mind, the Second Circuit recognized that, “[a]lthough voir dire ordinarily

contemplates seeing the jurors and hearing them speak, any court-supervised

examination of prospective jurors is reasonably understood to be part of voir dire.”

Id. (italics, citation, and footnote omitted).

As a practical matter, written questionnaires pose questions commonly

asked, and materially indistinguishable from, what we expect to see during oral

examination in the courtroom. Beyond that, the expectation that jurors will tell the

truth is the same whether their answers are spoken or written. The written

questionnaire in Mr. Isaacson’s case informed jurors that they were “sworn to give

true and complete answers,” and warned that jurors might be subject to prosecution

for perjury if they did not uphold that oath. This tracks the oath the jurors took

once they were called into Court in this case.

17
 Case: 11-14287 Date Filed: 05/22/2014 Page: 18 of 34

Because written questionnaires facilitate jury selection in ways not unlike

traditional oral examination, we cannot agree with Mr. Isaacson’s suggestion that

jury selection based on written questionnaires can never constitute part of voir dire

for purposes of the Speedy Trial Act. Where, as here, the District Court relies on

written questionnaires to aid in jury selection, voir dire and thus the trial begins

when the Court starts to rule on opposed juror challenges based on those written

questionnaires. In this case, that date was March 23, several weeks before Mr.

Isaacson’s Speedy Trial Act motion.6 Mr. Isaacson’s April 19 motion was

therefore untimely, and he was not entitled to dismissal.

We caution that District Courts should not take our decision today “as a

license to evade the Act’s spirit,” Gonzalez, 671 F.2d at 444, by starting to

eliminate jurors based on written questionnaires long before beginning oral

examination. As we said in Gonzalez, “[w]e will not hesitate to find that a trial has

not actually ‘commenced’ . . . if we perceive an intent to merely pay the Act lip

service.” Id. Thus, there may be cases where a deviation from the general rule

about written examinations we set forth today would be warranted, where the

record reveals some purposeful manipulation of the Speedy Trial Act’s technical

requirements.

6
Because it makes no difference, we need not decide today whether voir dire might have begun
on March 18, when the District Court began to rule on unopposed juror challenges.
18
 Case: 11-14287 Date Filed: 05/22/2014 Page: 19 of 34

The particular procedural background of this case, even with the rather

prolonged delay of trial, gives us comfort that this voir dire was not commenced in

order to avoid the requirements of the Speedy Trial Act. When the District Court

first ruled on the written questionnaires, it had already granted a continuance, at

two defendants’ request, to April 26. Also, the Court still had a motion before it

which challenged certain evidence against Mr. Isaacson and his co-defendants, for

which it held an evidentiary hearing in the first week of April. Given this context,

we do not see the District Court’s decision to begin jury selection in March based

on the written questionnaires as an intentional effort to manipulate the Speedy

Trial Act.

IV. The Statute of Limitations

Next, Mr. Isaacson argues that his conviction should be vacated because the

government failed to prove an overt act within the statute of limitations. In a

conspiracy prosecution brought under 18 U.S.C. § 371, the government must prove

at least one overt act in furtherance of the conspiracy by one of the conspirators

within the five years before the return of the indictment. 18 U.S.C. § 3282(a);

United States v. McNair, 605 F.3d 1152, 1213 (11th Cir. 2010).7 Whether there is

7
Mr. Isaacson also argues that after Gabelli v. SEC, ___ U.S. ___, 133 S. Ct. 1216 (2013), our
focus should be on whether the indictment was returned within five years of the conspiracy’s
beginning, rather than whether any overt act occurred within five years of the indictment being
returned. The Supreme Court’s interpretation of the statute of limitations for purposes of civil
enforcement in Gabelli, however, is not directly on point here, because this case involves a
criminal conviction governed by an entirely separate statutory provision, 18 U.S.C. § 3282(a).
19
 Case: 11-14287 Date Filed: 05/22/2014 Page: 20 of 34

sufficient evidence of an overt act within the statute of limitations is a question of

law which this Court reviews de novo. See id. at 1212 n.87.

The grand jury returned Mr. Isaacson’s indictment on January 29, 2008,

meaning that the government had to prove an overt act in furtherance of the

conspiracy occurring on or after January 29, 2003. See 18 U.S.C. § 3282(a).

When the District Court rejected Mr. Isaacson’s statute of limitations argument, it

found “that the government sufficiently proved a number of overt acts within the

limitations period (e.g., overt acts 24, 26, and 27).” Because one overt act in

furtherance of the conspiracy is enough to affirm the conviction, we focus on overt

act 24, which alleged that Mr. Lauer sent letters to the Lancer Fund’s investors in

February 2003. Mr. Isaacson’s brief does not challenge the District Court’s

conclusion that the sending of these letters was an overt act in furtherance of the

conspiracy. Instead, Mr. Isaacson argues that this overt act does not mention him,

and that Mr. Lauer’s overt act cannot be used to bootstrap Mr. Isaacson’s conduct

within the statute of limitations.

This argument misunderstands the nature of conspiracy liability. “[A]n

individual conspirator need not participate in the overt act in furtherance of the

conspiracy. Once a conspiracy is established, and an individual is linked to that

We are therefore bound to apply our existing precedent, which generally applies § 3282(a) to
criminal convictions. See United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009)
(describing this Court’s strong prior panel precedent rule).
20
 Case: 11-14287 Date Filed: 05/22/2014 Page: 21 of 34

conspiracy, an overt act committed by any conspirator is sufficient.” United States

v. Thomas, 8 F.3d 1552, 1560 n.21 (11th Cir. 1993); see also United States v.

Arias, 431 F.3d 1327, 1340 (11th Cir. 2005) (“An accused conspirator’s

participation is presumed to have continued . . . until the last overt act has been

committed by any of the conspirators.”).8 Mr. Isaacson’s statute of limitations

argument is therefore without merit.

V. The Sufficiency of the Evidence

Mr. Isaacson also challenges the sufficiency of the evidence supporting his

conviction. He argues that several government witnesses, and one government

agent who did not testify at trial, were not credible, and that two of the

government’s witnesses testified that they did not know Mr. Isaacson. In Mr.

Isaacson’s view, the case against him was weak, as evidenced by the government’s

failure to secure a conviction on six of the seven counts charged. Also, he points

to shortcomings in the government’s case he surmises could have led to his

acquittal.

We review de novo the sufficiency of the evidence supporting a conviction,

viewing the evidence and drawing all inferences in favor of the verdict. United

States v. Benbow, 539 F.3d 1327, 1331 (11th Cir. 2008). We must affirm Mr.

Isaacson’s conviction “unless there is no reasonable construction of the evidence

8
Our analysis would be different if there was evidence that Mr. Isaacson withdrew from the
conspiracy. See Arias, 431 F.3d at 1340.
21
 Case: 11-14287 Date Filed: 05/22/2014 Page: 22 of 34

from which the jury could have found [him] guilty beyond a reasonable doubt.”

United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir. 2013). To the extent Mr.

Isaacson’s argument “depends upon challenges to the credibility of witnesses, the

jury has exclusive province over that determination and the court of appeals may

not revisit this question.” United States v. Chastain, 198 F.3d 1338, 1351 (11th

Cir. 1999). We will upset a jury’s decision to credit a witness’s testimony only in

the rare circumstance that the testimony is incredible as a matter of law. United

States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). Testimony is incredible

as a matter of law only if it concerns facts that the witness “physically could not

have possibly observed or events that could not have occurred under the laws of

nature.” Id. (quotation marks omitted).

Applying these well-established principles, we find the evidence against Mr.

Isaacson sufficient to support his conviction. He primarily argues that Messrs.

Cowen and Barbarosh were not credible because the witnesses had incentives to

lie. But Mr. Isaacson has not pointed to any circumstances that would render their

testimony incredible as a matter of law, and instead points to circumstances which

were thoroughly explored during the examinations of both witnesses. Mr. Isaacson

also notes that more evidence has come out since his conviction suggesting that

Mr. Barbarosh lied about his own culpability and about whether Mr. Isaacson was

really the source of the business plans upon which the fraudulent valuations were

22
 Case: 11-14287 Date Filed: 05/22/2014 Page: 23 of 34

based. But, at least on direct review from the conviction, we consider only the

evidence that was actually presented to the jury at the time it reached its verdict.

See United States v. Lopez-Ramirez, 68 F.3d 438, 441 & n.3 (11th Cir. 1995).9

By contrast, the government presented significant evidence implicating Mr.

Isaacson. Mr. Barbarosh testified that Mr. Isaacson gave him the business plans,

knowing they would be used in valuations provided to auditors, and knowing that

the plans had nothing to do with the businesses being valued. Beyond that, the

shell companies Mr. Barbarosh was valuing were actually managed by Mr.

Isaacson (suggesting that he knew their true value, or rather lack thereof), and had

been purchased by the Lancer Fund with Mr. Isaacson’s help. Finally, Mr.

Isaacson testified on his own behalf, and the jury was “permitted to reject that

testimony, as we must assume it did, and consider that testimony as substantive

evidence of the defendant’s guilt.” United States v. Jiminez, 564 F.3d 1280, 1285

(11th Cir. 2009) (quotation marks and emphasis omitted). This evidence supports

the inference that Mr. Isaacson was guilty, and his evidence arguably suggesting

otherwise does not undermine it to the extent necessary for us to upset the jury’s

verdict.

9
The other evidence Mr. Isaacson points to as undermining the government’s case makes no
difference at all. He challenges the credibility of one government witness, again without
pointing to any facts that would make the testimony incredible as a matter of law. He also
attacks the credibility of a government agent. But this agent did not even testify at Mr.
Isaacson’s trial, so it is not clear to us how that impacts his conviction.
23
 Case: 11-14287 Date Filed: 05/22/2014 Page: 24 of 34

VI. The Sentence

We next consider Mr. Isaacson’s argument that the government did not carry

its burden to attribute Morgan Stanley’s losses to him for purposes of the loss

amount enhancement and the restitution order. Based upon the findings of the

District Court, the government’s evidence did not adequately tie Morgan Stanley’s

investment to the scope of Mr. Isaacson’s participation in the conspiracy. Thus,

we vacate his sentence and remand with instructions.10

In his objections to the PSR and at sentencing, Mr. Isaacson asserted that the

government could not adequately attribute Morgan Stanley’s $15.625 million

investment to him. “When the government seeks to apply an enhancement under

the Sentencing Guidelines over a defendant’s factual objection, it has the burden of

introducing sufficient and reliable evidence to prove the necessary facts by a

preponderance of the evidence.” United States v. Washington, 714 F.3d 1358,

1361 (11th Cir. 2013) (quotation marks omitted). “We review de novo the

application of the sentencing guidelines and findings of fact for clear error.”

United States v. Louis, 559 F.3d 1220, 1224 (11th Cir. 2009).

The District Court “may hold participants in a conspiracy responsible for the

losses resulting from the reasonably foreseeable acts of co-conspirators in

10
Because we resolve this argument in Mr. Isaacson’s favor, we need not consider his alternative
argument that the sentence is unreasonable because both the prison sentence and restitution
amounts were far greater than what any of his more culpable co-defendants received.
24
 Case: 11-14287 Date Filed: 05/22/2014 Page: 25 of 34

furtherance of the conspiracy.” United States v. Hunter, 323 F.3d 1314, 1319

(11th Cir. 2003). But “[t]he limits of sentencing accountability are not coextensive

with the scope of criminal liability.” Id. For sentencing purposes, a defendant is

responsible for the conduct of his co-conspirators only if that conduct was “in

furtherance of the jointly undertaken criminal activity” and “reasonably

foreseeable in connection with that criminal activity.” USSG § 1B1.3, comment.

(n.2). The Guidelines have established a two-pronged test which District Courts

must apply at sentencing before they can attribute losses caused by a co-

conspirator’s conduct to a defendant. First, the District Court must “make

individualized findings concerning the scope of criminal activity undertaken by a

particular defendant.” Hunter, 323 F.3d at 1319 (quotation mark omitted); see also

USSG § 1B1.3, comment. (n.2) (“In order to determine the defendant’s

accountability for the conduct of others . . . the court must first determine the scope

of the criminal activity the particular defendant agreed to jointly undertake (i.e., the

scope of the specific conduct and objectives embraced by the defendant’s

agreement).”). “[T]he fact that the defendant knows about the larger operation,

and has agreed to perform a particular act, does not amount to acquiescence in the

acts of the criminal enterprise as a whole.” Hunter, 323 F.3d at 1320.

Once the District Court determines the precise scope of the defendant’s

agreement, the Court must then consider whether the conduct of his co-

25
 Case: 11-14287 Date Filed: 05/22/2014 Page: 26 of 34

conspirators was “in furtherance of, and reasonably foreseeable in connection with,

the criminal activity jointly undertaken by the defendant.” USSG § 1B1.3,

comment. (n.2). Said another way, the defendant’s sentence can only be enhanced

by those reasonably foreseeable losses caused by co-conspirators acting in

furtherance of the part of the conspiracy in which the defendant agreed to

participate. See Hunter, 323 F.3d at 1319–20; see also USSG § 2B1.1, comment.

(n.3(A)(i)–(ii)) (defining loss amount as the greater of the actual losses “that

resulted from the offense” or the “pecuniary harm that was intended to result from

the offense”).

Here, the government has not established that Morgan Stanley’s losses were

the result of either Mr. Isaacson’s or his co-conspirators’ conduct in furtherance of

the part of the conspiracy in which he agreed to participate. The District Court’s

“finding with regards to the scope of criminal activity that was jointly undertaken

by Mr. Isaacson” was this: “Mr. Isaacson knowingly participated in a scheme to

produce or create inflated valuations for what I will call the shell companies which

Lancer had in its portfolio. . . . The purpose of this aspect of the conspiracy was to

help Lancer deal with questions being asked by auditors and administrators of the

Lancer Funds . . . .” Specifically, then, the District Court concluded that Mr.

Isaacson agreed to jointly undertake the criminal activity of defrauding the

auditors, not the investors.

26
 Case: 11-14287 Date Filed: 05/22/2014 Page: 27 of 34

As a result, to attribute Morgan Stanley’s losses to Mr. Isaacson, the

government was required to show that its investment was the result of acts by Mr.

Isaacson or his co-conspirators taken to defraud the auditors. In assessing the link

between the actions taken to further that subset of the criminal enterprise and

Morgan Stanley’s investment, we “must not speculate concerning the existence of

a fact which would permit a more severe sentence under the guidelines.” United

States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997) (quotation marks omitted).

A close look at the conspiracy to defraud the auditors and Morgan Stanley’s

investment reveals that far too much speculation is necessary to attribute that

investment loss to the conspiracy to defraud the auditors.

Morgan Stanley never saw the valuations Mr. Isaacson helped Mr.

Barbarosh to prepare. And, as the District Court noted, Morgan Stanley knew the

auditors had not signed off on the Lancer Fund’s financial statements for 2001, the

year for which the fraudulent valuations were provided. But Morgan Stanley

invested anyway. That Morgan Stanley invested knowing that the audit reports

were delayed, suggesting there might be a problem, strongly supports the inference

that Morgan Stanley made its investment decision entirely independent of any

audit reports that would or should have been completed after Mr. Isaacson agreed

to join the conspiracy. This inference is further supported by the fact that Morgan

Stanley’s June 28, 2002 investment was the last in a series of several investments

27
 Case: 11-14287 Date Filed: 05/22/2014 Page: 28 of 34

Morgan Stanley made, dating back to October 2001, after doing its own due

diligence. These facts preclude the government from showing that Morgan

Stanley’s investment “resulted from,” USSG § 2B1.1, comment. (n.3(A)(i)), the

conspiracy to defraud the auditors. In the words of the District Court, “Morgan

Stanley was going to make this investment, and had made its own internal decision

that despite significant risk factors, it was going to invest, because it thought it was

a good deal, and it was willing to overlook certain red flags, like the audited

financial statements for 2001 being late.”

To be sure, the conspiracy to defraud the auditors delayed and possibly

prevented the auditors’ discovery of the fraud. In this way, the government argues,

the conspiracy to defraud the auditors caused the investment because “Morgan

Stanley almost certainly would have learned of Lancer’s fraud if that fraud had

been discovered and publicly reported by Lancer’s auditors.” But this hypothetical

causal chain requires inference upon inference for which there is not sufficient

support in the record. See Washington, 714 F.3d at 1361. Would the auditors have

actually discovered the broader conspiracy to defraud the investors if not for the

conspiracy to defraud the auditors? Would the auditors have made that

information public? If the auditors would have unearthed the conspiracy and

released that information to the public, would they have done so in time to prevent

Morgan Stanley’s investment?

28
 Case: 11-14287 Date Filed: 05/22/2014 Page: 29 of 34

The record does not support an affirmative answer to this last question. The

fraudulent valuation reports Mr. Barbarosh produced were dated May 3, May 23,

and June 7, 2002, and Morgan Stanley made its investment on June 28, 2002. The

government acknowledged at Mr. Isaacson’s sentencing that there was no evidence

about the precise date on which the valuation reports were provided to the auditors.

Given that the final valuation report is dated June 7 and Morgan Stanley invested

on June 28, we reject the government’s argument that we should infer, without

more information, that without those reports, the auditors would have discovered

the fraud in time to save Morgan Stanley from making this bad investment

decision.

To the contrary, the evidence strongly suggests that Morgan Stanley was set

on making the June 2002 investment, and does not support the inference that

absent the specific conspiracy Mr. Isaacson joined, the auditors would have

discovered the fraud before Morgan Stanley invested. To say that Morgan

Stanley’s investment resulted from the conspiracy to defraud the auditors would

require a number of inferential leaps and assumptions not supported by the record.

See Sepulveda, 115 F.3d at 890–91. Therefore, we conclude that the link between

the conspiracy to defraud the auditors and Morgan Stanley’s investment is too

speculative to say the latter “resulted from” the former, as the Guidelines require.

USSG § 2B1.1, comment. (n.3(A)(i)–(ii)); Sepulveda, 115 F.3d at 890–91. The

29
 Case: 11-14287 Date Filed: 05/22/2014 Page: 30 of 34

District Court clearly erred in concluding otherwise and Mr. Isaacson’s sentence

should not have been enhanced based on Morgan Stanley’s losses.

The same problem plagues the District Court’s restitution order. This Court

reviews the legality of a restitution order de novo, and factual findings regarding

the specific amount of restitution for clear error. United States v. Huff, 609 F.3d

1240, 1247 (11th Cir. 2010). The Mandatory Victims Restitution Act requires a

District Court to order restitution for any person who is “directly and proximately

harmed as a result of” a defendant’s participation in a conspiracy. See 18 U.S.C.

§ 3663A(a)(2). Because we find that the government did not carry its burden to

show that Morgan Stanley’s investment was the result of the conspiracy in which

Mr. Isaacson participated, he cannot be ordered to pay restitution based on that

investment. Cf. United States v. Dickerson, 370 F.3d 1330, 1341 (11th Cir. 2004)

(“[A] criminal defendant cannot be compelled to pay restitution for conduct

committed outside of the scheme, conspiracy, or pattern of criminal behavior

underlying the offense of conviction.”).

Mr. Isaacson’s sentence is vacated and we remand this case for his

resentencing without the loss amount enhancement or the $8 million restitution

order. When the District Court resentences Mr. Isaacson, it should resolve all of

his remaining sentencing objections not already addressed. Because all of the

objections Mr. Isaacson raised were before the District Court at the original

30
 Case: 11-14287 Date Filed: 05/22/2014 Page: 31 of 34

sentencing, and because the Court stood ready to accept all relevant evidence from

both parties going to each of those objections, we remand with instructions that the

District Court is limited to the record the parties previously made as to those

objections. See Washington, 714 F.3d at 1362 (describing situations in which this

Court will not remand for further evidentiary hearings after a defendant’s

successful appeal). The same evidentiary limitation applies to the District Court’s

reconsideration of the appropriate restitution amount. The government has already

had an opportunity to litigate the restitution question, and did not appeal the

District Court’s denial of the government’s request to present further evidence on

restitution.

VII. The Rule 33 Motion

Mr. Isaacson’s second appeal challenges the District Court’s denial of his

Federal Rule of Criminal Procedure 33 motion for a new trial and an evidentiary

hearing based on the prosecutor’s failure to disclose that his wife was a lawyer at

the law firm representing Mr. Barbarosh.

We review a District Court’s denial of a Rule 33 motion for a new trial and

an evidentiary hearing for abuse of discretion. United States v. Thompson, 422

F.3d 1285, 1294–95 (11th Cir. 2005); United States v. Schlei, 122 F.3d 944, 990

(11th Cir. 1997). Mr. Isaacson presents two reasons the District Court should have

granted the motion: (1) because the prosecutor’s recusal was required by statute,

31
 Case: 11-14287 Date Filed: 05/22/2014 Page: 32 of 34

see 28 U.S.C. § 528 (providing that a prosecutor is not supposed to participate in a

prosecution “if such participation may result in a personal, financial, or political

conflict of interest, or the appearance thereof”); or alternatively (2) because the

alleged conflict should have been disclosed pursuant to Brady v. Maryland, 373

U.S. 83, 83 S. Ct. 1194 (1963).

Both of these claims miss the mark. First, the prosecutor was not required to

recuse himself under § 528. The prosecutor’s wife had no involvement in Mr.

Barbarosh’s defense and did not even work in the firm’s criminal defense practice

group. Beyond that, she was only employed as an at-will, part-time attorney and

was paid an hourly wage. See United States ex rel. Weinberger v. Equifax, Inc.,

557 F.2d 456, 463–64 (5th Cir. 1977) (holding that a District Court judge was not

required to recuse himself 11 where the judge’s son was an attorney with the firm

representing one of the parties because the son’s “salary interest as an associate is

too remote” to give rise to any arguable conflict); 12 see also United States v.

Reagan, 725 F.3d 471, 488 (5th Cir. 2013) (noting that the “mere fact that the

prosecutor’s husband worked at a firm that represented one of the witnesses did not

create a conflict, as [the defendant] did not show that the prosecutor or her husband

11
It bears mention that a stronger showing of a conflict is generally required for prosecutorial
recusal than judicial recusal. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787,
811, 107 S. Ct. 2124, 2139 (1987) (plurality).
12
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
32
 Case: 11-14287 Date Filed: 05/22/2014 Page: 33 of 34

had a financial stake in the outcome of [the defendant’s] trial creating a conflict or

requiring her disqualification,” even though the prosecutor’s husband was a partner

rather than an associate). Because Mr. Isaacson cannot show that the prosecutor or

his wife had any financial interest in a good outcome for Mr. Barbarosh, there is no

conflict of interest that would have required the prosecutor’s recusal. The District

Court was right to deny Mr. Isaacson’s Rule 33 motion based on the statutory

recusal provision.

To the extent Mr. Isaacson raises a Brady claim that disclosure of the

conflict was required even if recusal was not, the challenge is still without merit.

While there may be some cases where an arguable prosecutorial conflict must be

disclosed even if recusal is not statutorily required, this is not one of them. To

prevail on a Rule 33 motion based on an alleged Brady violation, a defendant must

show that there is a reasonable probability the outcome would have been different

had the evidence been disclosed. See United States v. Vallejo, 297 F.3d 1154,

1164 (11th Cir. 2002) (noting that defendants must prove four things, including

prejudice, before a Rule 33 motion based on a Brady violation will be granted).

Mr. Isaacson has shown no reasonable probability that the outcome would

have been different if his attorney had been able to cross examine Mr. Barbarosh

about the prosecutor’s alleged conflict of interest. There is substantial evidence

implicating Mr. Isaacson in the conspiracy, and his attorney examined Mr.

33
 Case: 11-14287 Date Filed: 05/22/2014 Page: 34 of 34

Barbarosh about his plea agreement with the government and his incentive to

testify against Mr. Isaacson. We agree with the District Court’s finding that this

purported prosecutorial conflict would not have given Mr. Barbarosh any

additional incentive to lie on the stand. There is therefore no reasonable

probability that the outcome would have been different had the alleged conflict

been disclosed.

VIII. Conclusion

We affirm Mr. Isaacson’s conviction as well as the denial of his Rule 33

motion. However, we find that the District Court erred when it enhanced Mr.

Isaacson’s sentence and ordered restitution based on the losses from Morgan

Stanley’s investment. We therefore vacate the sentence and remand for

resentencing based on the record from the first sentencing.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

34