[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 2, 2012
No. 10-10852
JOHN LEY
________________________
CLERK
D.C. Docket No. 1:08-cr-00044-SPM-AK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH T. LANDER,
a.k.a. Joey Lander,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 2, 2012)
Before WILSON and COX, Circuit Judges, and RESTANI,* Judge.
PER CURIAM:
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
A jury convicted Joseph T. Lander on mail fraud and money laundering
charges related to two separate fraudulent schemes. One of these schemes
involved Lander’s conversion of funds developers gave him to hold in trust for
future expenses associated with their River Shores at Jena development (the
“River Shores Scheme”). In the other scheme, Lander convinced one of his
victims to make a significant investment in a vitamin company he was starting
called GenSpec Labs, LLC by misrepresenting the expected return on this
investment and the viability of the company (the “GenSpec Scheme”). The
superseding indictment alleged that Lander executed these schemes using the mail
and engaged in monetary transactions with the money he derived from the River
Shores Scheme. The jury convicted Lander on sixteen of the twenty-one counts in
the superseding indictment. Lander now appeals, challenging his convictions and
sentences on various grounds.
We conclude that the proof presented at trial in connection with the River
Shores mail fraud count (Count Two) materially varied from the allegations
contained in the superseding indictment. This variance substantially prejudiced
Lander and we reverse his conviction on this count. We also reverse his money
laundering convictions (Counts Four through Fourteen) because they were
predicated on the River Shores mail fraud count. We affirm Lander’s mail fraud
2
convictions related to the GenSpec Scheme. And, we decide Lander’s other
assertions of error lack merit.
I. FACTS AND PROCEDURAL HISTORY
A. FACTS
Lander worked as an attorney in Dixie County, Florida. There, he practiced
law and served as the county attorney.1 Lander’s business dealings extended
beyond his legal work, however. He also tried to start and was the majority owner
of a vitamin company called GenSpec Labs, LLC (“GenSpec”).
1. River Shores Scheme
The nature of this scheme demonstrates the blurry line between Lander’s
private practice and his work as county attorney in this case. A group of real
estate developers planning a project called River Shores at Jena (“River Shores”)
in Dixie County retained Lander to help guide their project through the county’s
regulatory process. When they initially met Lander they did not know he was the
county attorney, but they quickly became aware of this fact through their meetings
with him. In order to “give a level of security to the prospective buyers that [the
developers] would finish the development,” (Dkt. 190 at 96), the developers gave
1
Because Lander challenges the sufficiency of the evidence to support his convictions, we
state the facts in the light most favorable to the Government. United States v. Ward, 197 F.3d 1076,
1079 (11th Cir. 1999) (citations omitted).
3
Lander $820,000 in August of 2005 to be held in trust to draw against as the
developers incurred infrastructure expenses.
Lander then opened an account called the “Lander Law Firm – Special
Account” to hold the developers’ funds. But, not all of these funds helped
complete River Shores. For example, Lander made a $140,980 withdrawal from
the account to buy an island off the western coast of Florida. He also used the
money for various other personal expenses. These personal withdrawals
continued until December of 2007 when Lander depleted and closed the account.
While Lander was making personal draws on the account, he also fulfilled
two of the requests from the developers for money from the account. Lander
mailed a $200,000 cashier’s check drawn from the account on August 17, 2005.
In early 2006, Lander fulfilled another request for $300,000. According to one of
the developers, he did not question that Lander still held the other $320,000
because Lander remitted these two requests in a timely manner. When the
developers made a third request for funds, Lander denied it and informed them
that the county commissioners were not comfortable with the project and the rest
of the money would be released when they finished the project.
2. GenSpec Scheme
4
In the summer of 2005, Lander was also busy soliciting investors for a
business venture he called GenSpec. According to Lander, GenSpec marketed
vitamins for specific racial and ethnic groups and “it was the hottest thing on the
market.” (Dkt. 191 at 50.) He told potential investors he already had contracts
with various major retail outlets to sell the vitamins and promised a quick return
on investment. In fact, Lander had not secured these contracts and did not pay the
promised dividends.
One of GenSpec’s investors was Kathy Veach. Lander sought a $1 million
buy in from Veach in exchange for a 1.5% share of GenSpec. He convinced Ms.
Veach to meet part of this obligation by providing a $127,745.90 cashier’s check
so that Lander could buy a Maserati automobile. Because Veach did not have
enough money to pay the buy in, Lander also told her that an individual named
Henry Fred “Mitch” Mitchell would lend her $500,000. Veach agreed to this loan
and gave Lander $50,000 as payment for the loan origination fee. She then began
mailing installment payments of $4,166.67 to Mitchell. Much like the promised
GenSpec dividends, this loan was illusory. Mitchell never agreed to loan
$500,000 to Veach. Rather, Mitchell acknowledged that Lander owed him money,
so he applied part of Veach’s payments to this debt and then remitted the rest to
Lander.
5
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B. PROCEDURAL HISTORY
1. The Indictment
The grand jury returned a twenty-one count superseding indictment against
Lander. Sixteen of those counts concern us here.2 Count Two of the indictment
relates to the River Shores Scheme and is explained more fully below. Counts
Four through Fourteen charge Lander with money laundering by engaging in a
monetary transaction in property of a value greater than $10,000 derived from mail
fraud, in violation of 18 U.S.C. § 1957. These counts are based on various
withdrawals Lander made from the Lander Law Firm – Special Account. Counts
Fifteen through Nineteen also charge mail fraud in violation of 18 U.S.C. §§ 1341
and 1342 in connection with Lander’s GenSpec Scheme. Specifically, the
indictment alleges that Lander used his position of trust as an attorney to convince
people to invest in this business. It alleges that Lander falsely told potential
investors he had contracts with major retail stores to sell GenSpec products and
that a quick investment was needed to ensure that the individuals received
dividends. Finally, it contends Lander used the mail to execute this scheme.
2
The jury returned a verdict of not guilty on Count One (mail fraud). The district court
granted a judgment of acquittal on Count Three (mail fraud) and Count Nineteen (principal to mail
fraud). The Government dismissed Count Twenty (wire fraud) and Count Twenty-one (making a
false statement to an FDIC bank).
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2. Motions for Judgment of Acquittal
Near the close of the Government’s case in chief, Lander moved the court
for a judgment of acquittal. Lander argued that there was insufficient evidence to
support the counts against him. He renewed this motion at the close of the
Government’s case. The court granted the motion as to Counts Three and
Nineteen because it found that there was no mailing to support these two mail
fraud counts. After the jury returned its verdict, Lander again moved the court for
a judgment of acquittal. This motion asserted that the Government’s evidence did
not prove any scheme to defraud so he should be acquitted of the mail fraud and
the accompanying money laundering counts. The motion also claimed that the
Government had constructively amended the indictment by presenting at trial a
scheme to defraud different from the one alleged in the indictment. The court
denied this motion.
3. Sentencing
After a five-day trial, the jury convicted Lander on sixteen counts. The
presentence investigation report established a guideline imprisonment range of
seventy to eighty-seven months. The court sentenced Lander to an eighty-seven
month term of imprisonment as to each count, to run concurrently.
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II. ISSUES ON APPEAL
Lander raises the following issues on appeal: (1) whether a constructive
amendment to or material variance from the superseding indictment occurred; and
(2) whether the court erred by denying his motion for judgment of acquittal
because the evidence does not support any of his convictions.3
III. DISCUSSION
A. MATERIAL VARIANCE
Lander argues before this court, as he did in his Motion for Judgment of
Acquittal,4 that the facts proved at trial to support the River Shores mail fraud
charge (Count Two) materially varied from the allegations of the superseding
indictment. According to Lander, this variance substantially prejudiced his rights
and his conviction on this count should be reversed. We agree.
3
Lander also raises other issues on appeal: (1) whether the court erred by denying his
second motion for a mistrial; (2) whether the court erred by denying his motion to dismiss the
indictment due to grand jury bias; and (3) whether the court erred by denying his emergency motion
to continue. We reject Lander’s arguments on these issues and none of them warrant further
discussion. Also, because we reverse twelve of the sixteen counts of conviction and remand for
resentencing, we will not address Lander’s challenge to his current sentence.
4
Lander’s Motion for Judgment of Acquittal stated, “Instead of arguing the information
contained in the indictment, the Government presented evidence that they believed constituted an
alternative scheme to defraud which went well beyond the four corners of the indictment,
constituting a constructive amendment to the indictment.” (Dkt. 127 at 16.) While Lander labeled
this a constructive amendment, we understand this contention as arguing a material variance. When
the district court denied Lander’s motion, it too understood Lander as having made a material
variance argument. Thus, we have no trouble concluding that Lander preserved this issue for appeal.
9
Count Two of the indictment alleges that Lander
did knowingly and willfully devise and intend to devise a scheme to
defraud and to fraudulently deprive another of the intangible right of
his honest services as County Attorney for Dixie County, Florida, and
to obtain money and property and by means of material false and
fraudulent pretenses, representations and promises, and for the
purpose of executing this scheme to defraud, and attempting to do so,
did knowingly cause matters to be deposited with and delivered by
the United States Postal Service
in violation of 18 U.S.C. §§ 1341 and 1346. (Dkt. 66 at 1-3.)
The indictment continues by describing this scheme to defraud. It states
that Lander in his capacity as county attorney falsely represented to developers
that they were required to pay a performance bond to Dixie County through him as
county attorney. According to the indictment, Lander then opened the “Lander
Law Firm – Special Account”; deposited $820,000 as payment for the
performance bond in the account; concealed the fact he deposited the money into
his own law firm account by causing cashier’s checks to be issued from the
account; and converted $320,000 of the fraudulently obtained funds. By this
conduct, the indictment alleges that Lander deprived the citizens of Dixie County
of their right to honest services.
“The standard of review for whether there is a material variance between the
allegations in the indictment and the facts established at trial is twofold: First,
10
whether a material variance did occur, and, second, whether the defendant suffered
substantial prejudice as a result.” United States v. Chastain, 198 F.3d 1338, 1349
(11th Cir. 1999) (citing United States v. Prince, 883 F.2d 953, 959 (11th Cir.
1989)). We have called an allegation of a variance in essence “one form of
challenge to the sufficiency of the evidence.” United States v. Jenkins, 779 F.2d
606, 616 (11th Cir. 1986). “A ‘variance’ occurs when the evidence at trial
establishes facts materially different from those alleged in the indictment.” United
States v. Caporale, 806 F.2d 1487, 1499 (11th Cir. 1986) (citing United States v.
Johnson, 713 F.2d 633, 643 n.9 (11th Cir. 1983)). To find substantial prejudice,
we have ordinarily considered whether “the proof at trial differed so greatly from
the charges that appellant was unfairly surprised and was unable to prepare an
adequate defense.” United States v. Calderon, 127 F.3d 1314, 1328 (11th Cir.
1997) (citations omitted).
The Government concedes that the only possible basis for conviction on
Count Two of the indictment is pecuniary mail fraud under 18 U.S.C. § 1341.5
(Appellee’s Br. at 36 n.3.) To prove that Lander committed mail fraud, the
5
The Government argues that Count Two of the superseding indictment alleged honest
services fraud and pecuniary fraud. According to the Government, this gave it a choice at trial to
prove only a pecuniary fraud scheme and the jury could properly convict on this basis. This
argument fails to address Lander’s claim that the allegations of the indictment materially varied from
the proof at trial.
11
Government had to show that he “(1) intentionally participated in a scheme to
defraud; and (2) used the mails to further that scheme.” United States v. Brown,
40 F.3d 1218, 1221 (11th Cir. 1994) (citing 18 U.S.C. § 1341; United States v.
Wingate, 997 F.2d 1429, 1432 (11th Cir. 1993)). “A scheme to defraud requires
proof of a material misrepresentation, or the omission or concealment of a material
fact calculated to deceive another out of money or property.” United States v.
Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009) (citing United States v. Svete, 556
F.3d 1157, 1161, 1169 (11th Cir. 2009) (en banc)). The indictment met this
requirement for a material misrepresentation by alleging that Lander “falsely
represented to certain developers having business before Dixie County that the
developers were required to pay a performance bond to Dixie County.” (Dkt. 66 at
2.) We agree with Lander that this allegation in the indictment materially varies
from the proof at trial.
In fact, the evidence at trial, even when considered in the light most
favorable to the Government, disproved that Lander made this misrepresentation.
For example, when one of the developers was asked whether Lander ever
represented to them that Dixie County required a performance bond, he responded:
“Not that I recall.” (Dkt. 189 at 146-47.) Another one of the developers stated
that Lander never told her that the developers needed to post a performance bond.
12
And, the Government points to no place in the record where the evidence at trial
supports the charge that Lander misrepresented to the River Shores developers that
they needed to post a performance bond. Without this misrepresentation to
support the River Shores scheme to defraud, the Government shifted its trial
strategy. During its closing argument, it appeared to rely on Lander’s
representations to the developers that he could make sure their project moved
through the regulatory process. At oral argument before this court, the
Government suggested the misrepresentation occurred when Lander said he would
hold the $820,000 in trust for development expenses. In either case, the
misrepresentation the Government relies on does not coincide with the allegations
of the indictment. The scheme to defraud is an essential element of the mail fraud
charge. Thus, we conclude there was a material variance from the indictment.
Next, we must decide whether this variance substantially prejudiced Lander.
We hold that it did. As our precedent explains, the rationale behind the material
variance rule is that the accused be informed of the charges against him and that
he not be surprised by the evidence offered at trial. Thompson v. Nagle, 118 F.3d
1442, 1453 (11th Cir. 1997) (citing Berger v. United States, 295 U.S. 78, 82, 55 S.
Ct. 629, 630 (1935)). This justification is grounded in the fundamental
requirement that an indictment “apprise[] the defendant of what he must be
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prepared to meet.” Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038,
1047 (1962) (citations omitted) (quotation marks omitted).
The Government tries to rely on a scheme to defraud entirely different from
the one alleged in the indictment to support Lander’s River Shores mail fraud
conviction. But, any misrepresentation the jury may have reasonably relied upon
to support its conviction on Count Two differed from the misrepresentation
charged in the indictment. As such, the indictment failed to put Lander on notice
of the crime for which he was convicted—Lander could not prepare a defense to a
scheme to defraud that does not appear in the indictment.
We decide that any proof the Government may have offered at trial to
support the jury’s verdict on Count Two varied so greatly from the allegations of
the indictment that Lander was unable to prepare his defense. When a material
variance substantially prejudices the defendant as it does here, this variance
constitutes reversible error. See United States v. Narog, 372 F.3d 1243, 1247
(11th Cir. 2004). Therefore, we reverse Lander’s conviction on Count Two.
B. SUFFICIENCY OF THE EVIDENCE
Lander challenges the sufficiency of the evidence on all counts. We review
de novo the district court’s denial of a judgment of acquittal on sufficiency of the
evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12 (11th Cir.
14
2006) (en banc) (citing United States v. Pistone, 177 F.3d 957, 958 (11th Cir.
1999)). We view the evidence in the light most favorable to the Government and
resolve any conflicts in the evidence in favor of the Government. United States v.
Ward, 197 F.3d 1076, 1079 (11th Cir. 1999) (citations omitted). “[T]he evidence
is sufficient to support a conviction if ‘a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt.’” United States v. Williams,
527 F.3d 1235, 1244 (11th Cir. 2008) (quoting United States v. Calhoon, 97 F.3d
518, 523 (11th Cir. 1996)).
1. Money Laundering Counts (Counts Four Through Fourteen)
Lander contends the evidence is insufficient to support his convictions for
money laundering in violation of 18 U.S.C. § 1957. A conviction under § 1957
requires proof that Lander “knowingly engaged or attempted to engage in a
monetary transaction in criminally derived property that is of value greater than
$10,000 and is derived from specified unlawful activity.” United States v.
Johnson, 440 F.3d 1286, 1289 (11th Cir. 2006) (citations omitted) (quotation
marks omitted). To satisfy the “specified unlawful activity” prong of the money
laundering charges, the Government relied on the mail fraud charge in Count Two
of the indictment. Because we reverse Lander’s conviction on Count Two, we
reverse Lander’s convictions on Counts Four through Fourteen as well.
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2. GenSpec Mail Fraud (Counts Fifteen Through Eighteen)
Lander argues that the evidence did not establish that he committed mail
fraud in connection with the GenSpec Scheme. The offense of mail fraud consists
of “(1) an intentional participation in a scheme to defraud a person of money or
property, and (2) the use of the mails in furtherance of the scheme.” United States
v. Smith, 934 F.2d 270, 271 (11th Cir. 1991) (quoting United States v. Downs, 870
F.2d 613, 615 (11th Cir. 1989)).
Lander asserts that the district court erred by denying his motion for
judgment of acquittal on these counts because the Government failed to prove
GenSpec was a fraudulent venture. We reject this argument. To prove mail fraud,
the Government did not have to establish that GenSpec itself was fraudulent.
Rather, the Government had the burden to prove that Lander engaged in a scheme
to defraud GenSpec investors. The evidence was sufficient to prove Lander
intentionally tried to defraud GenSpec investors of money or property.
The evidence at trial established that Lander misrepresented the prospects of
GenSpec by telling Veach that she would recover her investment within six
months. He also lied to her when he told her he already had lined up
endorsements and contracts with major distributors. After convincing Veach to
invest in GenSpec through misrepresentations like these, Lander made a
16
fraudulent arrangement to help Veach pay a portion of the $1 million buy in
Lander demanded. Lander told Veach that a third party, Mitchell, would loan her
the money and convinced Veach to pay Lander a $50,000 loan origination fee and
then mail Mitchell checks to pay off her debt. Lander later admitted, and Mitchell
testified, that Mitchell never made a loan to Veach. Instead, Mitchell used a
portion of Veach’s payments to pay off a debt Lander owed Mitchell and then
remitted the balance to Lander. Based on this evidence we conclude a reasonable
jury could find that Lander intentionally devised a scheme to defraud and used the
mail in furtherance of that scheme. We affirm his convictions on these counts.
IV. CONCLUSION
We conclude the material variance between the proof offered by the
Government at trial and the allegations in support of Count Two of the indictment
substantially prejudiced Lander’s ability to prepare his defense. Therefore, we
reverse Lander’s conviction and vacate his sentence on Count Two. The money
laundering charges in Counts Four through Fourteen depended on this mail fraud
conviction, so we reverse these convictions and vacate these sentences as well.
We affirm Lander’s convictions on Counts Fifteen through Eighteen. And, we
reject Lander’s other assertions of error. During sentencing, the district court
considered all of the counts of conviction. Because we reverse his convictions on
17
Counts Two and Four through Fourteen, we vacate Lander’s sentences on all
counts and remand for resentencing.6
AFFIRMED IN PART, REVERSED IN PART, VACATED AND
REMANDED IN PART.
6
During resentencing, the district court should recalculate the amount of loss in this case in
light of our reversal of Counts Two and Four through Fourteen.
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