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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14540
________________________
D.C. Docket No. 1:12-cr-20901-WPD-2
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
CRAIG STANLEY TOLL,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(November 3, 2015)
Before WILLIAM PRYOR, JULIE CARNES, and SILER, * Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
*
Honorable Eugene E. Siler Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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This appeal requires us to decide whether the district court abused its
discretion by allowing a lay witness to testify about the financial statements of the
company that employed him as its controller and whether sufficient evidence
supports Craig Toll’s ten convictions for participating, as chief financial officer of
the same company, in schemes to defraud investors and the United States. The
government presented evidence that Toll maintained two sets of financial
statements and used one set to mislead investors and the United States. And the
controller testified that, when the two sets of statements were prepared, he believed
only the other set complied with Generally Accepted Accounting Principles. A jury
convicted Toll of two counts of conspiracy to commit wire fraud, one count of
conspiracy to engage in financial transactions with criminally derived property,
three counts of wire fraud, one count of major fraud against the United States, and
three counts of making false statements to a federal agency. The district court did
not abuse its discretion by admitting the controller’s testimony, and the
government presented sufficient evidence to convict Toll. We affirm.
I. BACKGROUND
Toll served as the chief financial officer of InnoVida. He had a master’s
degree in business administration from the Wharton School of Business, and he
had previously worked as an audit partner for a large accounting firm and as chief
financial officer for a Fortune 500 company.
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InnoVida was a holding company for several subsidiary companies. It
manufactured panels for rapidly built structures, and it marketed them as energy
efficient. But InnoVida never earned significant revenues from selling these
panels. It instead made most of its revenue by selling “factories in a box,” which
were joint ventures to build factories to manufacture the panels.
Toll, with the help of others, prepared two sets of unaudited financial
statements for InnoVida. The main difference between the statements was how the
sets recognized revenue from the factories in a box. And that difference meant that
each set reported a major difference in profitability.
One set of statements recognized revenue on a deferred basis. That is, when
InnoVida received revenue for a factory, it was offset with a liability that reflected
the progress of construction on the factory. As construction of the factory
progressed, more of the revenue was recorded as earned. This first set of
statements reported that InnoVida was losing millions of dollars.
The other set of statements recognized revenue in full as soon as InnoVida
received payment for a factory, even if construction was incomplete. This second
set of statements was labeled “pro forma.” It reported substantial profits.
Together with Claudio Osorio, the owner and majority shareholder of
InnoVida, Toll participated in two schemes, the first of which involved private
investors. Osorio and others solicited individuals to invest directly in InnoVida or
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enter into joint ventures for “factories in a box.” InnoVida structured the joint
ventures so that the investors would own fifty percent of the equity in exchange for
their capital contributions, and InnoVida would own the other fifty percent in
exchange for providing equipment. When it provided that equipment, InnoVida
marked up the price by about 100 percent.
Toll and Osorio misrepresented some facts to investors and omitted others.
They provided the investors with the pro forma statements reporting substantial
profits, but no one told the investors about the other set reporting significant losses.
They also told some investors that Osorio was not receiving a salary, but Osorio
funneled substantial corporate funds to a personal account. And neither Toll nor
Osorio revealed that InnoVida used deposits from some investors to pay others.
The second scheme involved a loan from the Overseas Private Investment
Corporation, an agency of the United States. A managing director of the
Investment Corporation explained that its “mission is to help people in
[developing] countries to improve their economic position while, at the same time,
helping U.S. businesses to grow their markets and develop their business.” Osorio
and Toll obtained a $10 million loan from the Investment Corporation for a
purported project in Haiti. The Investment Corporation disbursed $3.2 million of
the loan, and Osorio and Toll used the majority of it for improper purposes, such as
repaying other investors and funding Osorio’s personal account. When InnoVida
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sought the remainder of the loan, the Investment Corporation requested records to
verify that InnoVida had complied with the terms. InnoVida provided the
Investment Corporation with false documents about its use of the loan proceeds,
about its equity contribution to the Haiti project, and about purported contracts it
secured in Haiti. Suspecting fraud, the Investment Corporation never disbursed the
remaining proceeds.
A federal grand jury indicted Toll and Osorio for their participation in both
schemes. It indicted Toll for two counts of conspiracy to commit wire fraud, 18
U.S.C. § 1349, fifteen counts of wire fraud, id. § 1343, one count of major fraud
against the United States, id. § 1031(a), three counts of making false statements to
a federal agency, id. § 1001(a)(3), and one count of conspiracy to engage in a
monetary transaction with criminally derived property, id. § 1956(h).
At trial, the government introduced evidence to prove Toll’s participation in,
and knowledge of, both schemes. Lewis Carness, the controller at InnoVida,
testified about how the accounting department operated. Although Toll initially
was a signatory for most of the bank accounts, he was removed in 2009 and had to
receive bank statements from another employee, Elba Gamboa. This change
occurred after Osorio’s wife, who did not have an official title but managed some
aspects of InnoVida, became upset with Toll and Carness for installing an
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expensive accounting system. She reduced both of their salaries, instructed Carness
to report directly to her, and tried “to isolate” Toll from the company.
Carness explained that the accounting department prepared two sets of
financial statements. When the prosecutor asked Carness to explain what “deferred
revenue” is, Toll objected. The district court overruled the objection and stated,
“[H]e’s not testifying as an expert. I’ll allow him to testify as to what happened, his
involvement with it, but not as an expert.” The government then asked Carness to
explain the “deferred revenue” section of the financial statements.
Later, without objection from Toll, Carness testified that, when he prepared
the statements, he believed that the ones using deferred revenue complied with the
Principles and the ones using full recognition of revenue did not:
Q. The statements that [used deferred revenue,] . . . [w]ere those
statements done according to what we call GAAP, G-A-A-P?
A. It was done according to our best interpretation of the GAAP
rules relating to it. It was our understanding that when we went
through the audit, the auditors would review those methods to validate
them. We had early discussions with them about the methods and
received preliminary, you know, agreement from them about the
methods used.
....
Q. Okay. Those entries [using full recognition of revenue] were
never booked into the accounting system?
A. No.
Q. Okay. Why not?
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A. Because the accounting system is supposed to . . . reflect the
method of accounting that you use for GAAP purposes, for purposes
of providing financials for the audit. This was merely an alternate
presentation of financials.
Q. And . . . was this alternate presentation according to GAAP?
....
A. To the . . . best of my knowledge, it was not.
The prosecutor then asked Carness to explain what the phrase “Generally
Accepted Accounting Principles” meant, and Toll objected. The district court
allowed Carness to testify “based on his experience.” Carness explained his
understanding of the Principles:
It’s a general guideline for accountants to use based on
pronouncements by a nongovernmental body called the Financial
Accounting Standards Board . . . . [T]here are various levels, ranging
from pronouncements by that body all the way down to industry
standards and norms . . . . It’s not a set of rules like the IRS has
regulations.
....
GAAP standards were done so that companies would treat
transactions consistently between entities so that their financials could
be comparable.
Later, the prosecutor asked Carness if InnoVida was “a profitable company,”
to which Toll again objected. The district court overruled the objection, and Toll
replied, “I believe not on a GAAP basis.”
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The government presented other evidence about how InnoVida used the two
sets of statements for different purposes. The set of statements reporting losses was
recorded in the official accounting system, and when Toll discussed the possibility
of an external audit with Ernst & Young, he provided them with this set. But the
set reporting profits was provided to the board of directors of InnoVida, to its
investors, and to the Investment Corporation. Besides the label “pro forma,” those
statements had no notations that could have explained the underlying assumptions
or that the statements differed from those kept in the official accounting system.
Ryan Freedman invested over $5 million in InnoVida. He believed the
company was “in very good shape” based on the pro forma statements that he
received, and the statements were “a large part of [his] investment decision.” When
Freedman consolidated his two investments in factories in a box, he became a
member of the board of directors. Freedman continued to receive the pro forma
statements, and Toll made at least one presentation to the board about the financial
status of InnoVida. Freedman received “approximately [$]1.6, $1.7 million in
repayment” on his investment. But some of those payments were late, and Toll
convinced Freedman not to hold InnoVida in default so that InnoVida could obtain
its loan from the Investment Corporation. Freedman did not understand why
InnoVida could not repay him, given that a financial statement shown to the board
reported that InnoVida had $39 million in cash. On another occasion, Toll
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represented that a wire transfer had been made to satisfy a repayment obligation to
Freedman, but the documentation for that transfer was spurious.
Bernie Carballo was a board member of InnoVida before investing in the
company. At board meetings, Toll and Osorio represented to him that “the
company was doing well and that [it was] heading in the right direction.” Toll
never explained the nature of the pro forma statements that he gave to the board.
Osorio approached Carballo for a short-term loan for InnoVida, and based on what
Carballo knew about the finances of InnoVida, he lent $1 million to the company.
Carballo received some interest payments, but he never recouped his principal.
Toll represented to Carballo that InnoVida made a wire transfer to repay the loan,
but as with Freedman, the documentation was spurious.
The government also introduced evidence about Toll’s participation in the
scheme to obtain a loan from the Investment Corporation. Lynn Tabernacki, a
representative of the Investment Corporation, testified that she dealt with Toll
“[p]redominantly,” by which she meant “90 percent of the time.” Shortly after the
earthquake in Haiti, the Investment Corporation loaned InnoVida $10 million so
that InnoVida could build a factory in Haiti that would sell panels to individuals
who wanted to construct homes rapidly. The agreement also required InnoVida to
construct panels at its existing factories to sell to third-party vendors and to assign
those contracts to the Investment Corporation as security. When applying for the
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loan, Toll sent Tabernacki the pro forma statements but never explained the
assumptions underlying them or disclosed that InnoVida maintained another set of
financial records. The loan required InnoVida to use the proceeds only for the
project in Haiti, to make an equity investment of $5 million in the project, and to
submit periodic financial statements that complied with the Principles.
After the Investment Corporation approved the loan, InnoVida requested
disbursement of half of the proceeds and provided documentation of an alleged
equity contribution of $2.5 million. Shortly after that request, InnoVida transferred
$1 million of the contribution to a subsidiary, purportedly as advance funding to
produce panels. Toll also provided updated pro forma statements to the Investment
Corporation, again with no disclosures.
The Investment Corporation eventually approved a disbursement of $3.2
million. InnoVida used most of these proceeds for purposes unrelated to the Haiti
project, such as repaying investors and funding a company owned by Osorio.
Shortly after receiving the initial disbursement, Toll recorded on the general ledger
an investment of $2,080,000 in the Haiti project, which ostensibly represented a
purchase of machinery and equipment for the factory in Haiti. But Toll later
reversed this entry because the transfer never occurred.
A few months later, InnoVida requested the remainder of the loan proceeds,
and the Investment Corporation required InnoVida to submit records to verify that
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it had complied with the terms of the loan. Tabernacki requested records about
how InnoVida had used the first disbursement. Toll sent her documents that
reported that InnoVida had paid $2,080,000 to one of its subsidiaries for machinery
and equipment; $1,689,993 to another subsidiary for purchases to fulfill a contract
for panels; and $1,929,804 to the same subsidiary to fulfill another contract.
Tabernacki was not satisfied and requested additional information about these
disbursements. After Gamboa drafted additional documents, Toll asked her to
make changes because he thought some “items could have been done better.”
Later, someone from InnoVida submitted bank statements to Tabernacki, but some
of the statements had withdrawal information deleted so that the payments to
investors and Osorio’s personal account were not reflected.
Tabernacki also requested that InnoVida provide records of its $2.5 million
equity contribution to the Haiti project. An attorney for InnoVida emailed
Tabernacki, and copied Toll, with a one-page document purporting to be a bank
record for a $2.5 million deposit. Around this time, Toll asked Carness to make an
entry in the accounting system for a cash transfer of $2.5 million because InnoVida
“had missed some deadline,” but Carness refused to make the entry because “the
cash wasn’t there.” Tabernacki requested additional information, and someone sent
her the bank records for the Haiti project. Upon inspection, Tabernacki discovered
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that the “tracing number” for the purported $2.5 million contribution was actually a
$500,000 deposit from another investor.
InnoVida also submitted documents purportedly reflecting two contracts to
sell panels in Haiti. First, an attorney for InnoVida submitted an email stating that
World Vision, a nongovernmental organization, had “awarded Innovida a total of
10,000 [panels].” The email was from Osorio to Toll with a forwarded message
from Lisa Guiterrez Brito, identified as the emergency relief station head for World
Vision. The email was fabricated: World Vision never entered into such a contract,
no one named Lisa Gutierrez Brito worked for World Vision, and no one at World
Vision had the job title “emergency relief station head.” Second, Toll submitted an
email to Tabernacki reporting that Royal Caribbean Cruises had entered into a deal
with InnoVida. Toll stated that he “thought [the Investment Corporation] should be
aware of the latest win in Haiti. Royal Caribbean has approved a $3.2 million
project.” Attached was a purported message to Osorio from an associate vice
president of Royal Caribbean that “confirmed [the order] at your proposed value of
$3,275Mill” and stated that the email was “your notice to proceed.” The message
from the associate vice president was altered: the actual message stated that “if we
are at $275k . . . I want to move forward with this.” The representative testified
that Toll was present at meetings where the representative made clear that Royal
Caribbean would not spend more than $300,000.
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At the close of evidence, Toll moved for a judgment of acquittal, Fed. R.
Crim. P. 29. The district court acquitted Toll of six substantive counts of wire fraud
with regard to the investors. The district court denied Toll’s motion about the other
counts.
In its closing argument, the government mentioned Carness’s testimony
about the two sets of financial statements, but it did not discuss whether the
statements complied with the Principles. It explained instead that Toll sent one set
of statements to potential auditors and a different set to the Investment Corporation
and investors when he knew that InnoVida was losing money according to the first
set. It also mentioned that the contract between InnoVida and the Investment
Corporation required that InnoVida submit financial statements prepared according
to the Principles but that InnoVida submitted statements labeled “pro forma” that
did not comply with the Principles.
The jury convicted Toll of two counts of conspiracy to commit wire fraud,
three counts of wire fraud, one count of major fraud against the United States,
three counts of making a false statement to the United States, and one count of
conspiracy to engage in a monetary transaction with criminally derived property.
The jury acquitted Toll of the six remaining counts of wire fraud. The district court
sentenced Toll to 48 months of imprisonment and three years of supervised release,
and it ordered him to pay $3.3 million in restitution.
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II. STANDARDS OF REVIEW
Two standards of review govern this appeal. First, we ordinarily review the
admission of lay testimony for abuse of discretion. United States v. Myers, 972
F.2d 1566, 1575 (11th Cir. 1992). “A district court abuses its discretion if it applies
an incorrect legal standard, applies the law in an unreasonable or incorrect manner,
follows improper procedures in making a determination, or makes findings of fact
that are clearly erroneous.” Citizens for Police Accountability Political Comm. v.
Browning, 572 F.3d 1213, 1216–17 (11th Cir. 2009). But if a party “fail[s] to
object [at trial] to the admission of evidence on a particular ground,” we review for
plain error. United States v. Langford, 647 F.3d 1309, 1325 n.11 (11th Cir. 2011).
Second, “[w]e review de novo whether there is sufficient evidence in the record to
support a jury’s verdict in a criminal trial, viewing the evidence in the light most
favorable to the government, and drawing all reasonable factual inferences in favor
of the jury’s verdict.” United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir.
2009). The defendant must do more than “put forth a reasonable hypothesis of
innocence, because the issue is not whether a jury reasonably could have acquitted
but whether it reasonably could have found guilt beyond a reasonable doubt.”
United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).
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III. DISCUSSION
We divide our discussion in two parts. First, we explain that the district court
did not abuse its discretion when it allowed Carness to testify about whether he
believed, when he created them, that the financial statements complied with the
Principles. Second, we explain that sufficient evidence supports each of Toll’s
convictions.
A. The District Court Did Not Abuse Its Discretion by Admitting Carness’s
Testimony.
Toll argues that the district court abused its discretion when it allowed
Carness to testify about whether Toll’s accounting methods complied with
Generally Accepted Accounting Principles. He contends that, because Carness was
not qualified as an expert and “[d]eterminations of whether an accounting decision
complies with or violates [the Principles] require the application of technical or
other specialized knowledge,” Carness’s testimony was inadmissible under Federal
Rule of Evidence 702. The government responds that the testimony was largely
factual, but if there was any opinion testimony, it was “admissible as lay opinion
under Rule 701 because it was based on facts he had perceived as an accountant
and controller for InnoVida.”
As a threshold matter, the parties dispute our standard of review. The
government argues that we should review for plain error because Toll never
objected to the testimony that he now challenges, but Toll argues that he timely
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objected to Carness’s testimony at trial. Because Toll loses under either standard,
we need not decide this issue and instead review for abuse of discretion.
The district court did not abuse its discretion. A lay witness like Carness
may offer factual testimony so long as he “has personal knowledge of the matter,”
Fed. R. Evid. 602, and opinion testimony if the testimony is “(a) rationally based
on the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702,” Fed. R.
Evid. 701. Carness testified to the fact that he believed, when he created the
statements, that some of them complied with the Principles and others did not. A
witness provides “factual statements” when he gives a “summary of financial
records,” United States v. Ransfer, 749 F.3d 914, 938 (11th Cir. 2014), and
explains how the records were created. Contrary to Toll’s argument, Carness did
not testify as to whether the accounting methods utilized by Toll actually complied
with the Principles. Instead, he testified about which statements were “done
according to [his] best interpretation of [the Principles].” “To the . . . best of [his]
knowledge,” he believed that, when the statements were prepared, one set
complied with the Principles and the other did not. What Carness believed when he
prepared the statements is a question of fact, so the district court did not err by
permitting this testimony.
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Even if some of Carness’s testimony was opinion testimony, it was
admissible under Rule 701. We have held that “Rule 701 does not prohibit lay
witnesses from testifying based on particularized knowledge gained from their own
personal experiences.” United States v. Moran, 778 F.3d 942, 967 (11th Cir. 2015)
(quoting United States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011)). Specifically, a
“business owner[] or officer[]” may provide lay opinion testimony “because of the
particularized knowledge that the witness has by virtue of his or her position in the
business.” Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d
1213, 1222 (11th Cir. 2003) (emphasis omitted) (quoting Fed. R. Evid. 701
advisory committee’s notes to 2000 amendments). Carness’s testimony falls within
Rule 701. He was the controller of InnoVida and had “at least 18 years of
experience” as an accountant. He testified whether he believed then that the
different statements he prepared complied with the Principles as he understood
them. This testimony was rationally based on his “own personal experiences,” Hill,
643 F.3d at 841, and “particularized knowledge that [he] ha[d] by virtue of his . . .
position” in InnoVida, Tampa Bay Shipbuilding & Repair, 320 F.3d at 1222
(emphasis omitted) (quoting Fed. R. Evid. 701 advisory committee’s notes to 2000
amendments). Because the testimony was admissible, the district court did not
abuse its discretion.
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B. Sufficient Evidence Supports Each of Toll’s Convictions.
Toll argues that the evidence was insufficient to support each of his ten
convictions, but we disagree. Sufficient evidence supports Toll’s convictions.
1. Conspiracy to Commit Wire Fraud (Counts 1 and 10)
The jury convicted Toll of one count of conspiracy to defraud investors
using the wires and one count of conspiracy to defraud the Investment Corporation
using the wires. Under the federal wire fraud statute, it is unlawful to “transmit[] or
cause[] to be transmitted by means of wire . . . communication in interstate or
foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose
of executing” a “scheme or artifice to defraud, or for obtaining money or property
by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C.
§ 1343. “Any person who . . . conspires to commit [wire fraud] shall be subject to
the same penalties as those prescribed for” wire fraud. Id. § 1349.
To sustain a conviction for conspiracy, “the government must prove (1) ‘the
existence of an agreement to achieve an unlawful objective’; (2) ‘the defendant[’s]
knowing and voluntary participation in the conspiracy’; and (3) ‘an overt act in
furtherance of the conspiracy.’” United States v. McQueen, 727 F.3d 1144, 1153
(11th Cir. 2013) (alteration in original) (quoting United States v. Ibarguen-
Mosquera, 634 F.3d 1370, 1385 (11th Cir. 2011)). “The very nature of conspiracy
frequently requires that the existence of an agreement be proved by inferences
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from the conduct of the alleged participants or from circumstantial evidence of a
scheme.” United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006) (quoting
United States v. Ayala, 643 F.2d 244, 248 (5th Cir. Unit A April 1981)). “A
conspiracy conviction will be upheld . . . when the circumstances surrounding a
person’s presence at the scene of conspiratorial activity are so obvious that
knowledge of its character can be fairly attributed to him,” id. (alteration in
original) (quoting United States v. Figueroa, 720 F.2d 1239, 1246 (11th Cir.
1983)), but the “inference of participation from presence and association with
conspirators alone does not suffice to convict,” United States v. Perez-Tosta, 36
F.3d 1552, 1557 (11th Cir. 1994). “[A] defendant can be convicted even if his or
her participation in the scheme is ‘slight’ by comparison to the actions of other co-
conspirators.” United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998).
a. Conspiracy to Defraud the Private Investors Using the Wires (Count 1)
Toll argues that the government “failed to prove [that] Osorio and Toll
formed any agreement” or that Toll had any “knowledge of Osorio’s criminal
scheme to defraud investors.” The government responds that it introduced
sufficient evidence from which “the jury was free to consider Toll’s actions, or
lack thereof . . . , to infer that Toll was knowingly involved in the fraud
conspiracies.” We agree with the government.
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The government presented sufficient evidence for a jury to find beyond a
reasonable doubt that Toll knew Osorio was misrepresenting the financial strength
of InnoVida and agreed to assist Osorio in his deceit. Toll oversaw the preparation
of two sets of financial statements. One set recognized revenue in full immediately
and reported substantial profits; the other set deferred recognition of revenue and
reported substantial losses. Ordinarily, financial statements using immediate
revenue recognition are used for internal management, but Toll often presented
those statements to investors. Those statements were also the ones presented to the
board, and Toll did not qualify his representations that InnoVida was profitable.
Toll recorded the other set of financial statements in the official accounting system
and gave them to Ernst & Young when he explored the possibility of an external
audit. Although the statements showing profits were labeled “pro forma,” they
contained no disclosures to alert anyone outside of management that the statements
differed from the other set in the accounting system, and no one explained what
“pro forma” meant. Based on Toll’s preparation of two sets of financial statements
and his suspicious use of them, the jury could reasonably infer that Toll agreed to
help Osorio misrepresent the financial strength of InnoVida.
Toll argues that the evidence is insufficient because it proves that he and
Osorio “continually worked at cross purposes,” to the point that the Osorios shut
him out of decisionmaking. Toll argues that he presented evidence that he
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“implement[ed] a transparent, well-structured accounting system”; he did not have
direct access to the bank accounts for InnoVida; and the Osorios “systematically
undermined [his] efforts toward financial transparency.”
Toll’s argument fails. That he took some steps towards a transparent
accounting system does not mean that a jury could not reasonably find he also
participated in the schemes. As to the issue of Toll’s isolation, the government
presented evidence that the Osorios took their actions because Osorio’s wife was
frustrated with the cost of the accounting system. The government also presented
evidence that Toll prepared and submitted the statements to InnoVida’s investors
and the Investment Corporation without qualifying his ability to verify the
information. In other words, Toll continued to behave toward outsiders as they
would expect a chief financial officer to behave. Because Toll was a well-educated
and experienced officer, the jury could have reasonably disbelieved Toll’s
evidence that he worked at cross purposes with the Osorios.
Toll also argues that the jury could not have found that he intended to
mislead investors with the financial statements because the government failed to
prove that the statements did not comply with the Principles, but the government
did not need to prove that the statements violated the Principles or that Toll knew
they did. The government was required only to “pro[ve] . . . a material
misrepresentation.” United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir.
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2009). The material representation was the unqualified disclosure that InnoVida
was making substantial profits when the official accounting system for InnoVida
reported substantial losses. The government presented sufficient circumstantial
evidence to prove that Toll conspired to make this material misrepresentation.
Toll argues that the government failed to prove that he shared the
“conspiratorial goals” because “no evidence [proved] that Toll sought to
unlawfully enrich himself or Osorio,” but we disagree. That Toll never directly
received the proceeds of the fraud is immaterial. As the government explains, “[b]y
playing along with the fraud scheme, Toll was able to remain employed in a
management position, and received a respectable salary for allowing the fraud
scheme to fester unabated.”
Toll also argues that there is no evidence that he solicited and recruited
investors, but we again disagree. Although Toll attempts to minimize his role, “a
defendant can be convicted even if his . . . participation in the scheme is ‘slight.’”
Toler, 144 F.3d at 1428. Toll never solicited investors himself, but the government
presented evidence that he assisted Osorio in doing so. Toll created the financial
statements and knew that they would be presented to investors. Moreover, Toll
repeatedly reported to the board, including investors Carballo and Freedman, that
the company was prospering. This evidence proves that Toll’s participation in the
scheme was more than slight and is more than sufficient to sustain his conviction.
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b. Conspiracy to Defraud the Investment Corporation Using the Wires
(Count 10)
Toll also argues that he “did not knowingly and intentionally submit false
information and documents to [the Investment Corporation] about purported
contracts, the use of loan proceeds, or an equity contribution.” He concedes that
these documents were false but argues that the evidence failed to prove that he
knew of or participated in the fraud. We disagree for three reasons.
First, sufficient evidence established that Toll knew the loan proceeds were
not used in accordance with the contract. When Tabernacki asked for records about
how the proceeds were used, Toll sent her documents that reported InnoVida had
transferred money to pay for machinery, equipment, and panels, including a
transfer of $2,080,000 to one of its subsidiaries. The general ledger establishes that
Toll knew some of this information was false before he sent it to Tabernacki
because he had already reversed an entry for the $2,080,000 payment. And other
evidence established that, when Tabernacki was not satisfied, Toll suggested to
another employee ways the documents “could [be] done better.” Based on this
evidence, the jury could reasonably infer that Toll was aware the loan proceeds
were used improperly.
Second, sufficient evidence established that Toll knew he misrepresented
whether InnoVida made its required equity contribution. Toll, through an attorney
for InnoVida, submitted a document purportedly reflecting a $2.5 million equity
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contribution, but the transaction had the same tracing number as a $500,000
deposit from an investor. Carness testified that Toll asked him to make an entry in
the accounting system for the transfer of $2.5 million, but Carness refused to make
the entry because the transfer never happened. The jury could reasonably infer
from this evidence that, when Toll sent the document to Tabernacki, he knew that
InnoVida had never made its contribution.
Third, sufficient evidence established that Toll knew the two purported
contracts were false. With respect to Royal Caribbean, Toll forwarded an email
that was altered to evidence a deal for $3,275,000, instead of $275,000. A
representative from Royal Caribbean testified that, at meetings with Toll, he made
clear that the contract would not exceed $300,000. And with respect to World
Vision, the government presented significant circumstantial evidence that Toll
knew the document was false. In addition to the direct evidence that Toll had
submitted other false documents, the language in the altered document from Royal
Caribbean was similar to the language in the altered document from World Vision,
giving rise to an inference that Toll at least knew the email was altered. Toll was
also the chief financial officer and in charge of recording payments for contracts on
the general ledger. The jury could reasonably infer from this evidence that Toll
knew that both of the purported contracts were false.
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2. Conspiracy to Engage in a Monetary Transaction with Criminally
Derived Property Worth More Than $10,000 (Count 22)
It is unlawful, subject to certain jurisdictional limits not challenged in this
appeal, to “knowingly engage[] . . . in a monetary transaction in criminally derived
property of a value greater than $10,000” that “is derived from specified unlawful
activity,” including wire fraud. 18 U.S.C. § 1957. It is also unlawful to “conspire[]
to commit [that] offense.” Id. § 1956(h). Toll reasserts his earlier arguments that
the evidence failed to establish knowledge of unlawful activity, but as we
explained above, the government introduced sufficient evidence that Toll knew of
the fraudulent activity.
Toll argues that the evidence establishes that he never “move[d] . . . money,”
but the government was not required to prove that he did. The Supreme Court has
held that to sustain a conviction for conspiracy to engage in transactions prohibited
by section 1956(h), the government is not required to prove any overt act in
furtherance of the conspiracy. Whitfield v. United States, 543 U.S. 209, 219, 125 S.
Ct. 687, 694 (2005). The government must prove only an “agreement between two
or more persons to commit a money-laundering offense” and “knowing and
voluntary participation in that agreement by the defendant.” United States v.
Broughton, 689 F.3d 1260, 1280 (11th Cir. 2012).
The government presented sufficient evidence of both elements of the
charged conspiracy. InnoVida used the proceeds of the loans to repay disgruntled
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investors and fund Osorio’s personal account, neither of which were approved
uses. Other evidence, including evidence that Toll reversed an entry in the general
ledger, further established that Toll knew of and assisted in the improper uses of
the funds. This participation was all that was required to sustain Toll’s conviction
for conspiracy to launder money.
3. Wire Fraud (Counts 14, 15, and 17)
The jury could have reasonably found that Toll committed the three counts
of wire fraud related to the Investment Corporation. Wire fraud consists of
“transmit[ting] or caus[ing] to be transmitted by means of wire . . . communication
in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds
for the purpose of executing” a “scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses, representations, or
promises.” 18 U.S.C. § 1343. Toll does not dispute that the communications were
made in furtherance of a scheme; he argues only that “the government failed to
prove Toll knew of or participated in the fraudulent scheme.” But for the same
reasons that there is sufficient evidence of the conspiracy to defraud the Investment
Corporation, there is sufficient evidence that Toll “knew of or participated in the
fraudulent scheme” for purposes of these counts.
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4. Major Fraud Against the United States (Count 18)
The jury also could have reasonably found that Toll committed major fraud
against the United States. As applied here, that offense involves “knowingly
execut[ing] . . . any scheme or artifice with the intent . . . to defraud the United
States . . . in any . . . loan . . . if the value of such . . . loan . . . is $1,000,000 or
more.” 18 U.S.C. § 1031(a). Section 1031(a) “sweep[s] broadly to . . . cover fraud
not only in the making of the contract, but also in the execution of the contract.”
United States v. Nolan, 223 F.3d 1311, 1315 n.5 (11th Cir. 2000). Toll again
argues that the evidence is insufficient because the government failed to prove
knowledge of, or participation in, any fraudulent scheme. The evidence was
sufficient for the same reasons we discussed in affirming his conviction for
conspiracy to commit wire fraud.
5. Making False Statements to a Federal Agency (Counts 19–21)
The jury convicted Toll of three counts of making false statements to a
federal agency. It is unlawful, “in any matter within the jurisdiction of the
executive . . . branch of the Government of the United States, [to] knowingly and
willfully . . . make[] or use[] any false writing or document knowing the same to
contain any materially false, fictitious, or fraudulent statement or entry.” 18 U.S.C.
§ 1001(a). A statement is material if it has “a natural tendency to influence, or [be]
capable of influencing, the decision of the decisionmaking body to which it was
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addressed.” United States v. Gaudin, 515 U.S. 506, 509, 115 S. Ct. 2310, 2313
(1995) (quoting Kungys v. United States, 485 U.S. 759, 770, 108 S. Ct. 1537, 1546
(1988)). “The government is not required to prove that the statement had actual
influence.” United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010).
a. The False Statement About Royal Caribbean (Count 20)
The jury convicted Toll of submitting a document falsely stating that
InnoVida had entered into a contract with Royal Caribbean for $3.2 million. Toll
does not deny that the document was false, but argues that there was no evidence
that he “knew the document was fabricated” or that it was material. We reject both
arguments.
The jury could have reasonably found that Toll knew that the document was
false and that it was material. Toll sent the document to Tabernacki, and the
document reported a contract price of $3,275,000, not $275,000. Although it is
uncertain who altered the email, a representative from Royal Caribbean testified
that Toll attended meetings where Royal Caribbean made clear that the contract
would not exceed $300,000. Even if Toll did not alter the email himself, a
reasonable jury could have found that Toll knew the document was false when he
submitted it to the Investment Corporation. And the document was material
because it represented that Royal Caribbean was entering into a contract with
InnoVida worth “$3,275Mill” and that InnoVida should “consider this e-mail as [a]
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notice to proceed.” Such a large contract, which would be assigned to the
Investment Corporation, had “a natural tendency to influence” the decisions of the
Investment Corporation. Gaudin, 515 U.S. at 509, 115 S. Ct. at 2313 (quoting
Kungys, 485 U.S. at 770, 108 S. Ct. at 1546).
b. The False Statement About the Equity Contribution (Count 21)
The jury also convicted Toll of causing the submission of a materially false
document stating that InnoVida had made a required equity contribution of $2.5
million. See 18 U.S.C. §§ 1031, 2. Toll does not dispute that the document was
false, but argues that the evidence fails to establish that he “caused it to be
submitted” or that “he knew the document was fabricated.”
As with the other documents, the jury could have reasonably found that Toll
caused the document to be submitted to the Investment Corporation. Although an
attorney for InnoVida submitted the document, Toll ordinarily sent all of the
documents to the attorneys for submission to the Investment Corporation. And Toll
was the only employee of InnoVida who was copied on the email to the Investment
Corporation. Based on this evidence, the jury could have reasonably found that
Toll caused the document to be submitted to the Investment Corporation.
The jury also could have reasonably found that Toll knew the document was
false. Before submitting the false document, Toll asked Carness to make an entry
in the accounting system for the transfer of $2.5 million, and Carness refused
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because it was not supported by the bank records. The document that Toll
submitted also bore the same tracing number as a $500,000 deposit from another
investor. Based on this evidence, the jury could have reasonably inferred that Toll
knew that the document was false when he submitted it to the Investment
Corporation.
c. The False Statement About World Vision (Count 19)
Finally, the jury convicted Toll for causing an attorney for InnoVida to
submit a document falsely stating that InnoVida had entered into a contract with
World Vision for the sale of 10,000 shelters in Haiti. Toll does not deny that the
document was false, but he argues that the government failed to establish that he
“caus[ed] the document to be submitted,” that “he knew the document was
fabricated,” and that the document was material. We disagree.
The jury could have reasonably found that Toll caused the document to be
submitted to the Investment Corporation. An attorney for InnoVida sent the
document to the Investment Corporation, and the attorney testified that it was
“very possible” that Toll sent him the document. The government also presented
testimony that documents submitted to the attorneys “principally” came from Toll,
and the document that the attorney sent to the Investment Corporation was a copy
of a message from Osorio to Toll. Based on this evidence, someone with access to
either Osorio’s or Toll’s email must have submitted the document to the attorney,
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and a jury could reasonably infer that Toll submitted the email because he
ordinarily submitted the documents to the attorneys.
The jury also could have reasonably found that Toll knew the document was
false. The government established that Toll conspired to defraud the Investment
Corporation, and it presented direct evidence that Toll knew he submitted at least
two other false documents—one about the purported contract with Royal
Caribbean and another about the purported equity contribution. Moreover, the
language in the altered document from Royal Caribbean is similar to the language
in the altered document from World Vision. Toll was also the chief financial
officer, so he was responsible for recording any contract payments on the general
ledger. Based on this significant circumstantial evidence, the jury could make the
reasonable inference that Toll knew that this document was false. See United States
v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011).
Moreover, the jury could have reasonably found that the document was
material. Toll argues that the document was not material because the email does
not use the word “contract,” and because Tabernacki testified that she did not “put
any value” in the email. Although Toll is correct that the document does not use
the word “contract,” the document states that World Vision “ha[s] awarded
InnoVida a total of 10[,]000 Units” and that InnoVida should “consider this e-mail
a notice to proceed with production and mobilization.” Even assuming that
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document is not a contract itself, the email communicates that a deal had been
struck. It is irrelevant that Tabernacki was not actually influenced by the
document. See Boffil-Rivera, 607 F.3d at 741. InnoVida was required to assign its
contracts to the Investment Corporation as security for the loan, so a large contract
was material because it would have “a natural tendency to influence” the decisions
of the Investment Corporation. Gaudin, 515 U.S. at 509, 115 S. Ct. at 2313.
IV. CONCLUSION
We AFFIRM Toll’s convictions.