United States v. James W. Long

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 25, 2008
No. 06-13332 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 05-60016-CR-RWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES W. LONG,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(November 25, 2008)

Before BIRCH and MARCUS, Circuit Judges, and FORRESTER,* District Judge.

PER CURIAM:

*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
 Defendant-appellant James Long appeals his convictions for conspiracy to

commit wire and mail fraud and substantive wire fraud, stemming from his

operation of a payday loan company, Cash Today USA, Inc. (“Cash Today”).1

Long also challenges his 72-month sentence as procedurally and substantively

unreasonable. After review of the record and consideration of the parties’ briefs

and arguments, we AFFIRM.

I. BACKGROUND

A federal grand jury returned a ten-count indictment charging Long and

Cash Today with conspiracy to commit mail and wire fraud, in violation of 18

U.S.C. §§ 371, 1341, and 1343 (Count I) and substantive wire fraud, in violation of

18 U.S.C. § 1343 (Counts II-X).

In April 2001, Long filed Articles of Incorporation for Cash Today with the

Florida Department of State and leased office space in a shopping center in

Margate, Florida. The lease was signed by Long and Melvin Ruth as President and

Vice President, respectively, of Cash Today. Long told federal authorities that

while he was the owner of record of Cash Today, Ruth was his silent partner and

had a 50% interest in the business. Ruth’s name was not on the corporate

documents, however, because Ruth was awaiting sentencing on a recent conviction

1
Cash Today also was convicted but does not appeal.

2
for telemarketing fraud.

Between April and June 2001, Long opened bank accounts in the name of

Cash Today USA at Regents Bank, Bank of America, and First Union. Some of the

accounts were designated as trust accounts and others as operating accounts. Both

Long and Ruth signed the signature card as President and Vice President of Cash

Today USA, Inc., respectively, on the account Long opened at First Union. Cash

Today hired independent sales offices (“ISO”) to raise start-up capital from

investors and agreed to pay them a 40% commission on all revenue raised for Cash

Today by their sales agents. Long, Ruth, and the sales agents operated from the

offices in the back of a check-cashing store doing business as Republic Cash

Advance (“RCA”). Cash Today and RCA entered into an agreement pursuant to

which Cash Today would loan investor funds to RCA, in exchange for which Cash

Today would receive a 20% annual return, paid 5% quarterly.

Prior to trial, Long filed a motion to suppress evidence, including bank

records, Federal Express receipts, investor records, and contracts between Cash

Today and its sales associates, seized during a search of Cash Today’s offices.

Long argued that there was no probable cause for the search and that the search

warrant failed to state with particularity the items to be seized. The application and

affidavit that was prepared by FBI Agent Richard Kiper and submitted to the

3
magistrate judge on 28 June 2001 detailed the government’s investigation into

Cash Today and alleged that there was probable cause to believe that the offices of

Cash Today contained evidence of mail fraud, in violation of 18 U.S.C. § 1341,

wire fraud, in violation of 18 U.S.C. § 1343, money laundering, in violation of 18

U.S.C. § 1956, and conspiracy, in violation of 18 U.S.C. § 371.

Specifically, Agent Kiper attested that: (1) subpoenaed bank records showed

that Cash Today transferred $1,134,000 of the $2.1 million in investor funds out of

a trust account and into an operating account in order to use those funds to pay

commissions and consulting fees; (2) Cash Today’s offering materials and

purchase agreements misrepresented that investor funds would be placed into

segregated accounts and used exclusively to facilitate loans to Cash Today’s

customers; and (3) Florida Office of the Comptroller records showed that Cash

Today had never applied for money transmitter licenses, which are required for

every check-cashing location. The affidavit also identified two Cash Today

investors who invested $10,000 and $50,000, respectively, after being told by Cash

Today sales agents that Cash Today operated seventeen check-cashing stores in

Florida and that their investments would be held in a trust account. Neither

investor was told that sales commissions would be paid from their investments.

At the suppression hearing, Agent Kiper conceded that the one-page search

4
warrant did not describe the premises to be searched or identify the documents to

be seized, but testified that a description of the location of Cash Today’s offices

(“Attachment A”) and a list of twelve specific items to be seized (“Attachment B”)

were part of the package submitted to and signed by the magistrate judge.2 Agent

Kiper was unable to recall whether the attachments were stapled or paper-clipped

to the affidavit but testified that they were “touching” the affidavit and that the

issuing magistrate judge read the entire affidavit in his presence.3 Agent Kiper

further testified that during a pre-operations briefing he reviewed with the search

team the affidavit and attachments and discussed the scope of the search, including

the twelve specific items to be seized.

The magistrate judge issued a report and recommendation finding that the

warrant was supported by probable cause because the affidavit listed the specific

statutes allegedly violated and detailed the FBI’s investigation, which revealed a

2
Attachment B to the affidavit, entitled “Description of Property to be Seized,” listed the
following items: (1) customer/investor account information; (2) customer correspondence; (3)
financial and banking records; (4) other correspondence; (5) sales literature, including “welcome
packs”; (6) telephone records; (7) telephone “scripts” and other telemarketing aids; (8) computer
internal and external hard drives, floppy disk drives and diskettes, tape drives; (9) records of
mailings, facsimile copies, and courier records; (10) overnight mail receipts; (11)
purchase/sale/trade records and other documents/records related to the purchase and
maintenance of “receivables,” corporate notes, stocks, or private placement contracts; (12) cash,
cashier’s checks, and other negotiable instruments.
3
Although the warrant incorporated Attachment A by reference, it made no reference to
Attachment B. At the suppression hearing, the government stated that this omission was a
“typographical goof” by the AUSA and also an “oversight” by the magistrate judge.

5
“Ponzi” scheme encompassing mail and wire fraud, money laundering, and other

federal offenses. The magistrate judge further found that the omission of any

reference to Attachment B did not render the warrant invalid because the warrant

and its attachments were presented to the issuing magistrate judge and the scope of

the search was discussed specifically with the search team prior to execution of the

warrant. The district court adopted the recommendation and denied the motion.

At trial, Salvatore DeStefano, one of Cash Today’s investors, testified that in

April 2001, he received a telephone call from Lorena Kaus, who identified herself

as a Cash Today sales agent. She explained that she was offering an opportunity to

invest in a check-cashing and payday advance loan company that was licensed to

do business in Florida. Kaus faxed to DeStefano at his home in New Jersey

marketing and promotional materials, which stated that the investor would receive

an annualized 42% return on his minimum investment of $10,000, paid at 3.5% per

month by the third of each month, and that TeleCheck would be the guarantor on

all accounts receivable. DeStefano testified that he was familiar with TeleCheck,

which he understood to be a “fairly well-known company. . . that reduces the risk

of merchants in accepting checks.” The materials further represented that Cash

Today was initially incorporated in Nevada in 1996 and had “a completely

unblemished three-year history of growth that includes two years of independent

6
CPA audited financials.”

Cash Today thereafter sent DeStefano an Accounts Receivable Purchase

Agreement (“purchase agreement”), which DeStefano signed and returned to Cash

Today on 23 April 2001. The purchase agreement stated, inter alia, that: (1) Cash

Today was a “validly formed existing corporation in good standing under the laws

of the state of Florida and . . . is properly licensed and authorized to operate its

business under the trade name Cash Today”; (2) “TeleCheck will guarantee all

accounts purchased by [the investor]”; and (3) all investor funds would be

“deposited in segregated accounts receivable fund at an FDIC insured bank” and

“utilized exclusively and solely for the purpose of facilitating loans to clients’

customers.” The agreement further stated that Cash Today acknowledges and

understands that the investor has relied on these representations and warranties in

entering the purchase agreement.

Pursuant to the wiring instructions he received from Cash Today, DeStefano

wire-transferred $20,000 to a Cash Today trust account at a Bank of America in

Deerfield Beach, Florida. After making the transfer, DeStefano received a

signature page to the purchase agreement, which was signed by J.W. Long as

president of Cash Today and witnessed by Melvin Ruth. DeStefano also received

via fax an addendum to the purchase agreement and a letter via mail confirming his

7
purchase of $20,000 of accounts receivable, both signed by J.W. Long.

DeStefano testified that he believed, based on the representations contained

in the promotional materials and the purchase agreement, that: (1) his investment

would be used to fund the start-up corporation, Cash Today; (2) Cash Today was in

the business of making temporary payday advance loans to the general public; (3)

Cash Today was the entity making the actual loans for check-cashing purposes, not

RCA; (4) “there would be no commingling of funds, that basically each investor’s

funds would be maintained in a separate account and that 100 percent of those

funds would be used exclusively, solely, and for no other purpose than to fund

payday loans”; and (5) Cash Today had entered into a contract with TeleCheck

whereby the latter would “guarantee the receipts on the payments that were made

to . . . Cash Today USA.”

DeStefano testified that he would not have invested his money but for these

representations. Specifically, he stated that it was “critical” to him that “the

accounts receivable purchase agreement included the representations that

TeleCheck guaranteed the payment, that the funds Cash Today accepted from

investors were being put into separate accounts, broken down by investor, and that

100 percent, that is all of the funds, were going to be used solely, specifically, and

exclusively for funding this corporation and . . . for funding the loans and for no

8
other purpose.” He stated that he “absolutely” would not have invested in Cash

Today had he known that TeleCheck had no relationship with Cash Today or that

his money would not be maintained in a segregated account.

DeStefano received his last interest check on 1 June 2001. Some time

thereafter, Long sent DeStefano a letter advising DeStefano that the government

had unjustifiably frozen Cash Today’s accounts and assuring him that Cash Today

had “done nothing wrong.” In October or November, DeStefano received a money

order in the amount of $210 from Cash Today. According to the letter

accompanying the money order, the payment was a “good faith showing on the

part of Cash Today USA that they intended to resume business normally in short

order.” Out of the $20,000 DeStefano invested with Cash Today, he received back

only $1000, resulting in a loss of $19,000.

In addition to DeStefano, the government called eleven other Cash Today

investors, all of whom gave substantially similar accounts of their experiences with

Cash Today. The investors testified that, after receiving and responding to

unsolicited internet advertisements, they were contacted via telephone by Cash

Today sales agents, who offered them the opportunity to invest in a start-up

company that would use their investments to make payday advance loans to

customers at its check-cashing stores. The investors also received in the mail Cash

9
Today’s promotional materials, instructions for wire-transferring their investments

to Cash Today’s trust account in Florida, and the accounts receivable purchase

agreement. The solicitation materials received by some of the investors contained

a letter, signed by Long, which promised a 3.5% monthly return “collateralized” by

customer checks that would be guaranteed by TeleCheck. Some letters promised

only a three percent return.

All of the investors signed the purchase agreement, which contained the

same representations made in the agreement signed by DeStefano, including that

Cash Today was properly licensed and authorized to do business in Florida, that

TeleCheck would guarantee all accounts purchased by the investor, and that all

investor funds would be maintained in segregated trust accounts and utilized

exclusively and solely for the purpose of facilitating loans to Cash Today’s

customers. The purchase agreement further represented that no commissions

would be paid out of the investor funds and that all expenditures, including fees

paid to the ISO’s, would be paid directly by Cash Today.

The investors testified that they relied on these representations as well as

representations that Cash Today operated several check-cashing stores in Florida,

in deciding to invest their money. Some testified that Cash Today never disclosed

to them its relationship with RCA and they would not have made the investments

10
had they known that their money would be used to make loans to RCA. After

wire-transferring their investments to Cash Today’s trust account and receiving

some initial interest payments, the investors were advised in a letter from Long that

the government had frozen Cash Today’s bank accounts and received no further

interest payments.

Soneet R. Kapina, a forensic accountant who reviewed Cash Today’s

records, testified as an expert witness that between April and June 2001, Cash

Today collected $2,169,946.93 from investors. While only $61,543.92 was paid

out to investors in dividends, $755,000 was paid to RCA, $865,416.19 to the sales

agents, and $208,891.00 to Long.4 Out of the 110 Cash Today investors, only 101

or 102 actually received any interest payments in April and June 2001. In total,

Cash Today paid out $2,242,282.65, leaving only $146,996.43 in Cash Today’s

bank accounts.5

Based on his review of Cash Today’s financial records, Kapina determined

that Cash Today was not operating any sort of business that would generate a flow

4
Other cash disbursements included: (1) $100,260.21 in payment of operational costs
and expenses to various persons and entities; (2) $14,192.81 in bank card fees; (3) $54,005.00 to
Rolando Nansca, an independent sales agent; (4) $50,000 to Doreen Kafi, an RCA manager; (5)
$72,200 to a company called “Success Direct”; (6) $7,337.52 in unidentifiable, miscellaneous
disbursements; (7) $1500 in automatic teller machine (“ATM”) fees; and (8) $1936 in other bank
fees.
5
RCA returned to Cash Today $219,032 of the $755,000 it received.

11
of income by investing the investor funds. Because Cash Today had no active

source of income or revenue, Kapina concluded that these disbursements were

made exclusively from investor monies and that Cash Today was thus incapable of

paying the rate of return promised in the purchase agreements. The only way Cash

Today could have paid dividends was by raising more investor funds from new

investors and paying earlier investors with the money raised from later investors.

Kapina stated that Cash Today’s operation “ha[d] all the tell tale classic signs of

what is often referred to as a Ponzi scheme,” which, he explained, denotes a

scheme whereby an entity pays earlier investors with money raised from later

investors, “[a]nd there is no real intrinsic business which generates money with

which to make returns.” Kapina agreed that, in his opinion, Cash Today was an

artifice and scheme to defraud investors.

Long testified in his own defense that when he began raising capital for Cash

Today, it was not his intent to defraud investors but simply “to get the company up

and running, make it successful” and “to become financially secure to go into other

fields.” He admitted that Cash Today had no relationship with TeleCheck and that

the language in the investors’ purchase agreements stating that all checks would be

guaranteed by TeleCheck was “not true,” but maintained that those

misrepresentations were “unintentional” and that he “never lied to anyone.” Upon

12
follow-up questioning by the district judge, Long admitted that he moved funds

from the trust account, which contained the investors’ money, to the operating

account, in order to pay expenses, including commissions.

At the close of testimony, the district court instructed the jury that Cash

Today was to be considered a person and, under the same rules that apply to a

personal defendant, could be found guilty of any offense charged. With respect to

the conspiracy charge, the district court instructed the jury that the government had

to prove that “two or more persons in some way or manner came to a mutual

understanding to try to accomplish a common and unlawful plan. . . [and] that the

defendants knowing the unlawful purpose of the plan wilfully joined in it.”

The jury found Long and Cash Today guilty on all ten counts of the

indictment. In anticipation of sentencing, the probation officer prepared a

presentence report (“PSI”). The PSI grouped the ten counts together and

recommended a base offense level of six. See U.S.S.G. §§ 3D1.2(d) and 2F1.1(a)

(Nov. 1, 2000). Because Long was accountable for losses totaling $2,100,000, his

base offense level was increased twelve levels pursuant to § 2F1.1(b)(1)(M). Long

received a two-level increase under § 2F1.1(b)(2) because the offense involved

more than minimal planning or a scheme to defraud more than one victim and an

additional two-level increase under § 2F1.1(b)(2) because the offense was

13
committed through mass-marketing. Finally, the PSI applied a four-level increase

under § 3B1.1(a) based on Long’s leadership role in the offense. With a total

offense level of 26 and a criminal history category of I, Long’s guidelines range

was 63 to 78 months of imprisonment.

Long filed objections to the PSI, arguing that applying the two-level

enhancements under both U.S.S.G. §§ 2F1.1(b)(2) and (b)(3) constituted

impermissible double counting because the same conduct was used to support

separate increases under two different guideline provisions that served identical

purposes. The district court overruled the objection, finding that the two

provisions “relate to two separate and distinct factors, namely the means used to

perpetrate the fraud and the number of victims.”

The court then stated that it had thoroughly reviewed the PSI and

considered the statements of all the parties, the advisory guidelines, and the 18

U.S.C. § 3553(a) factors. The court noted that Long had defrauded “trusting” and

“elderly people” out of their money, which some of the victims had been using “for

medical expenses,” and had shown no compunction about his criminal behavior.

Nevertheless, the court stated that it believed a sentence within the advisory

guideline range was appropriate to reflect the seriousness of the offenses and

provide just and reasonable punishment. The court then sentenced Long to 72

14
months of imprisonment,6 concluding that “[t]his [was] a reasonable sentence after

considering 18 U.S.C. § 3553(a)1-7, as well as the arguments for and against

mitigation or extenuation of punishment.”

Long now appeals his convictions and sentence.

II. DISCUSSION

Long raises numerous challenges to his convictions and sentence.

Specifically, he argues that: (1) the district court erred in denying his motion to

suppress evidence seized during the search of Cash Today’s offices; (2) the

cumulative effect of various trial errors deprived him of a fair trial; (3) the

evidence was insufficient to support his convictions; and (4) his sentence was

unreasonable. All of these arguments fail. We address each in turn.

A. Motion to Suppress

Long argues that the district court erred in denying his motion to suppress

physical evidence seized from Cash Today’s offices because: (1) the allegations

contained in the search warrant affidavit were insufficient to establish probable

cause to believe that Cash Today’s operations involved criminal activity, and (2)

the warrant lacked a description of the persons or things to be seized and thus was

invalid on its face.

6
Long was sentenced to 60 months of imprisonment as to the first nine counts, all to run
concurrently, and 12 months of imprisonment as to the final count, to run consecutively.

15
 We review the district court’s factual findings on a motion to suppress for

clear error and its application of law to those facts de novo. United States v.

Mercer, 541 F.3d 1070, 1073-74 (11th Cir. 2008) (per curiam). In conducting our

review, we construe the facts in the light most favorable to the party prevailing in

the district court. Id. at 1074.

1. Probable Cause

We review de novo whether an affidavit established probable cause for a

search warrant, “tak[ing] care both to review findings of historical fact only for

clear error and to give due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.” United States v. Jiminez, 224 F.3d

1243, 1248 (11th Cir. 2000) (quotation marks and citation omitted). Due to the

discretionary nature of the issuing judge’s probable cause determination, “our

limited task on appeal is simply to ensure that there exists a substantial basis for

her conclusion.” United States v. Foree, 43 F.3d 1572, 1576 (11th Cir. 1995)

(quotation marks and citation omitted).

Based on our review of the record, including the application for search

warrant and attached affidavit, we find that, under the totality of the circumstances

in this case, the issuing magistrate judge had a substantial basis for concluding that

probable cause existed to believe that Long and Cash Today were violating federal

16
law and that evidence of a crime would be found at Cash Today’s offices.

2. Particularity of Warrant

A warrant must describe with particularity the place to be searched and the

items or persons to be seized in order to satisfy the Fourth Amendment. See United

States v. Jenkins, 901 F.2d 1075, 1081 (11th Cir. 1990). The purpose of this

“particularity requirement” is to prevent “general, exploratory rummaging in a

person’s belongings.” United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir.

1982) (quotation marks and citation omitted). A warrant that fails to particularize

the things to be seized is thus facially deficient. See United States v. Accardo, 749

F.2d 1477, 1481 (11th Cir. 1985).

We acknowledge that the warrant in this case was, on its face, clearly

insufficient under the Fourth Amendment. Nevertheless, the undisputed testimony

of Agent Kiper establishes that Attachment B, which contained a list of twelve

specific items to be seized from Cash Today’s offices, was attached to the affidavit

and that the issuing magistrate judge reviewed the entire affidavit in Agent Kiper’s

presence. A reasonable inference may be drawn from these facts that the

magistrate judge read all of the materials presented to her, including Attachment B,

and thus was aware of the scope of the search she was authorizing. Cf. Groh v.

Ramirez, 540 U.S. 551, 561 n.4, 124 S. Ct. 1284, 1292 n.4 (2004) (holding warrant

17
describing items to be seized as a “two-story blue house” invalid where “petitioner

did not alert the Magistrate to the defect . . ., and [the Court] therefore cannot know

whether the Magistrate was aware of the scope of the search he was authorizing”).

B. Trial Errors

We review the cumulative impact of multiple errors de novo, though some

errors might individually be reviewed for plain error. United States v. Dohan, 508

F.3d 989, 993 (11th Cir. 2007) (per curiam). Reversal of a conviction may be

warranted where the cumulative effect of multiple errors is so prejudicial that a

defendant was deprived of the right to a fair trial, even though the errors

considered individually were harmless. United States v. Ramirez, 426 F.3d 1344,

1353 (11th Cir. 2005) (per curiam).

1. District Court’s Participation in Trial

Long argues that the district court impermissibly participated in the case by:

(1) acknowledging that the government’s witnesses had traveled far distances to

testify and thanking them for their testimony; (2) eliciting testimony from a bank

employee verifying the accuracy of the government’s financial evidence; (3)

instructing Long to answer the questions asked and to give more specific

responses; and (4) cross-examining Long in the presence of the jury regarding his

improper handling of investor funds. Long contends that the district court’s

18
comments impugned his credibility, reflected bias in favor of the government, and

unfairly influenced the jury.

A federal trial judge “is more than a mere moderator; he is the governor of

the trial process, vested with the duty to insure that the law is properly

administered.” United States v. Jacquillon, 469 F.2d 380, 387 (5th Cir. 1972).

Accordingly, he may comment on the evidence, question witnesses in order to

elicit or clarify facts, and interrupt counsel when necessary to maintain the pace of

a trial. United States v. Day, 405 F.3d 1293, 1297 (11th Cir. 2005). In doing so,

however, “he must maintain his impartiality, never giving the jury an impression of

his feelings as to the accused’s guilt or innocence.” United States v. James, 510

F.2d 546, 550 (5th Cir. 1975). “Only when the judge’s conduct strays from

neutrality is the defendant thereby denied a constitutionally fair trial.” United

States v. Harris, 720 F.2d 1259, 1262 (11th Cir. 1983) (quotation marks and

citation omitted).

The trial transcript shows that Long was at times non-responsive, prompting

the district judge on three occasions to instruct Long to answer only the questions

that specifically were asked. The judge also advised Long at one point that “the

jury might get more out of [his] testimony if [he] could use clearly responsible

[sic] names [and] dates.” At the end of Long’s lengthy testimony, the judge stated

19
that he had “a couple of questions just to clear up something” regarding Cash

Today’s bank accounts and sources of income. The judge then asked Long a series

of fifteen questions, all of which were intended to clarify his testimony. At no time

did the district court improperly comment on Long’s credibility or otherwise

indicate that he believed Long was guilty. The record further reflects that,

excluding his exchanges with Long, the judge asked a total of eleven questions of

five separate government witnesses over the course of the entire trial. It is clear

from our reading of the record that these questions were intended merely to clarify

the witnesses’ testimony and in no way evinced any bias in favor of the

government’s case.

We find that the jury could not reasonably have interpreted the district

court’s remarks as expressing an opinion that Long was guilty of the offenses

charged. Even assuming there was error, it was cured by the judge’s instruction to

the jury that it was not to assume from any comments he made that he had any

opinion concerning any of the issues in the case and that it was to “disregard

anything [he] may have said during the trial in arriving at your own decision

concerning the facts.” See United States v. Simon, 964 F.2d 1082, 1087 (11th Cir.

1992) (“[A] prejudicial remark may be rendered harmless by curative instructions

to the jury.”) (quotation marks and citation omitted).

20
2. Expert Witness Testimony

Long argues, for the first time on appeal, that the forensic accountant

improperly testified as to his mental state when he testified that Cash Today was a

ponzi scheme. Because Long failed to object to the introduction of this testimony

at trial, our review is for plain error only. See United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005). To prevail under this standard, the appellant

must demonstrate an “(1) error, (2) that is plain, and (3) that affects substantial

rights.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (per

curiam) (citation omitted). In order to satisfy the third prong of the plain error test,

the defendant must show that the alleged error was prejudicial, i.e., that there is a

reasonable probability, which means a probability “sufficient to undermine

confidence in the outcome,” that the result of the proceedings would have been

different but for the alleged error. Rodriguez, 398 F.3d at 1299 (quotation marks

and citation omitted). “[W]here the effect of an error on the result in the district

court is uncertain or indeterminate,” the appellant cannot carry his burden of

showing prejudice. Id. at 1301.

An expert witness may not testify as to his opinion regarding ultimate legal

conclusions. See Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541

(11th Cir. 1990) (“A witness . . . may not testify to the legal implications of

21
conduct; the court must be the jury’s only source of law.”). Although this rule

prevents an expert witness from stating an opinion as to whether the defendant did

or did not have the requisite mental state to be convicted of the crime charged, the

witness may testify as to his opinion on an ultimate issue of fact. See Fed.R.Evid.

704(a). Nevertheless, “courts must remain vigilant against the admission of legal

conclusions.” United States v. Milton, 555 F.2d 1198, 1203 (5th Cir. 1977).

Kapina’s statement that Cash Today bore the hallmarks of a “Ponzi scheme”

described Cash Today’s financial practices but offered no conclusion as to whether

Long participated in these practices with the intent to defraud investors. Because

this statement was a factual, and not a legal, conclusion, it was admissible under

Rule 704. See United States v. Nixon, 918 F.2d 895, 905 (11th Cir. 1990).

Kapina’s statement that Cash Today was an artifice or scheme to defraud is more

problematic, however, because it comes much closer to embodying an

impermissible legal conclusion. See United States v. Scop, 846 F.2d 135, 40 (2nd

Cir. 1988) (expert’s opinions that “drew directly upon the language of the statute

and accompanying regulations concerning ‘manipulation’ and ‘fraud’. . . were

legal conclusions that were highly prejudicial and went well beyond his province

as an expert in securities trading”); cf. Nixon, 918 F.2d at 905 (police detective’s

use of term “conspiracy” was permissible because “it did not track unduly the

22
definition of the offense in 21 U.S.C. § 846”). Although this statement was plainly

inadmissible, Long nevertheless cannot show that his substantial rights were

affected. Given the overwhelming evidence of guilt adduced at trial, there is no

reasonable probability that the result of the trial would have been different had the

district court excluded this single remark. Accordingly, Long has failed to satisfy

the third prong of the plain error test.

3. Jury Instructions

Long contends that because he was the sole officer and shareholder of Cash

Today, the district court erred in failing to instruct the jury that there can be no

criminal conspiracy between a defendant and a corporation where the corporation

is merely the defendant’s alter ego. It is true that “a sole stockholder who

completely controls a corporation and is the sole actor in performance of corporate

activities [] cannot be guilty of a criminal conspiracy with that corporation in the

absence of another human actor.” United States v. Stevens, 909 F.2d 431, 431-32

(11th Cir. 1990). In this case, however, there was abundant evidence that Long

was working in concert with at least one other human actor, Melvin Ruth, to

commit fraud. See United States v. Figueroa, 720 F.2d 1239, 1245 n.8 (11th Cir.

1983) (“[A]n individual can be convicted of conspiracy with ‘unknown persons’

referred to in the indictment.”) (citation omitted). Because Long was not “one

23
human actor, acting for himself and for the corporate entity which he controls,”

Stevens, 909 F.2d at 433, the district court had no basis for issuing an alter-ego

instruction.7

4. Government Comments

Finally, Long argues that because the defense does not have equal subpoena

power over FBI agents, the prosecutor improperly commented on the defense’s

failure to call the lead FBI agent as a witness. In his rebuttal closing argument, the

prosecutor stated:

[W]hy didn’t [defense counsel] bring Agent K[i]per in?. . . The
Federal Rules of Criminal Procedure in this Country give[] fairness to
every party. Rule 17, he could have subpoenaed Mr. K[i]per. He had
the authority and the right to do it. It’s right here in the rules. Who is
he k[i]dding. Each side has equal powers.

Long contends that these comments had the impermissible effect of shifting the

burden of proof to the defense. Long failed to raise this objection at trial, and thus

our review is for plain error only. See Rodriguez, 398 F.3d at 1298.

We must consider allegedly improper prosecutorial comments in context

7
Long also asserts that the district court failed to hold a charge conference in order to
invite objections to the proposed jury instructions. The government states in its brief, however,
that, according to the prosecutor, a charge conference was held on 6 March 2007, but was not
transcribed. Although we have no reason to doubt that this was the case, we note that even if the
district court indeed failed to hold such a conference, as Long alleges, Long was not prejudiced
by this failure because, given the overwhelming evidence of Ruth’s participation in Cash
Today’s operations, there is no reasonable probability that the court would have given the alter-
ego instruction.

24
when evaluating their propriety. See United States v. Bright, 630 F.2d 804, 825

(5th Cir. 1980). “[W]hile a prosecutor may not comment about the absence of

witnesses or otherwise attempt to shift the burden of proof, it is not improper for a

prosecutor to note that the defendant has the same subpoena powers as the

government, particularly when done in response to a defendant’s argument about

the prosecutor’s failure to call a specific witness.” United States v. Hernandez, 145

F.3d 1433, 1439 (11th Cir. 1998) (quotation marks and citation omitted). It also

“is not error to comment on the failure of the defense, as opposed to the defendant,

to counter or explain the evidence.” United States v. Griggs, 735 F.2d 1318, 1321

(11th Cir. 1984) (per curiam) (quotation marks and citation omitted).

The record reflects that in his closing statement, defense counsel asked the

jury to consider why the government failed to call Agent Kiper as a witness:

Well, who is the lead Agent in this case? It was Agent Richard
K[i]per. Why didn’t he testify? He was the lead agent in this case. He
was the person with all the information about everything going on, but
why wasn’t he called? . . . That’s something you can consider in
deciding whether or not the Government has met their burden.

The prosecutor’s comments, which were made in direct response to this argument,

“referred . . . to the quality (or lack thereof) of the defense’s evidence and the

defense’s failure to rebut the necessary inferences created by the government’s

case.” United States v. Exarhos, 135 F.3d 723, 728 (11th Cir. 1998). Moreover,

25
even if the prosecutor’s comments were prejudicial, they were rendered harmless

by the court’s instruction to the jury regarding the burden of proof. See Simon, 964

F.2d at 1087. Accordingly, we conclude that the prosecutor’s comments were not

improper.

C. Sufficiency of the Evidence

Long argues that the government presented no evidence that he knew, prior

to receiving money from the investors, that his business plan was untenable, and

thus failed to prove that he knowingly participated in a scheme to defraud or had

the specific intent to defraud. He contends that the evidence showed that he was

guilty, at worst, of exaggerating the quality of the investment.

We review de novo the sufficiency of the evidence in a criminal trial,

viewing the evidence in the light most favorable to the government, and must

uphold a conviction “unless the jury could not have found the defendant guilty

under any reasonable construction of the evidence.” United States v. Chastain, 198

F.3d 1338, 1351 (11th Cir. 1999); see also United States v. Keller, 916 F.2d 628,

632 (11th Cir. 1990) (“In order to uphold . . . the jury’s guilty verdict, this court

need only find that a reasonable factfinder could conclude that the evidence

establishes the defendant’s guilt beyond a reasonable doubt.”). In evaluating the

evidence, all reasonable inferences and credibility choices are made in support of

26
the verdict. See United States v. Mieres-Borges, 919 F.2d 652, 656 (11th Cir.

1990). To establish that the government’s evidence was insufficient, “[i]t is not

enough for a defendant to 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), cert. denied, — U.S. — , 127

S.Ct. 2155 (2007).

“Aside from the means by which a fraud is effectuated, the elements of mail

fraud, 18 U.S.C. § 1341, and wire fraud, 18 U.S.C. § 1343, are identical,” both

requiring that the defendant “(1) intentionally participates in a scheme or artifice to

defraud another of money or property, and (2) uses or ‘causes’ the use of the mails

or wires for the purpose of executing the scheme or artifice.” United States v.

Ward, 486 F.3d 1212, 1221-22 (11th Cir. 2007) (footnotes omitted). “A scheme to

defraud requires proof of material misrepresentations, or the omission or

concealment of material facts . . . reasonably calculated to deceive persons of

ordinary prudence.” United States v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir.

2003) (quotation marks and citations omitted). In addition to showing that the

defendant’s actions would have deceived a reasonably prudent person, the

government must also prove that the defendant had the requisite mens rea, which is

27
a “conscious knowing intent to defraud.” Pelletier v. Zweifel, 921 F.2d 1465, 1499

(11th Cir. 1991) (quotation marks and citation omitted). The mens rea element is

satisfied where “the perpetrator of the scheme anticipate[s] reliance.” Id.

(emphasis added).

A conviction for conspiracy under 18 U.S.C. § 371 requires proof of “(1) an

agreement among two or more persons to achieve an unlawful objective; (2)

knowing and voluntary participation in the agreement; and (3) an overt act by a

conspirator in furtherance of the agreement.” Hasson, 333 F.3d at 1270. The

government need not prove that the defendant made a specific agreement to use the

mails or interstate wires to commit fraud; “it is enough to prove that the defendant

knowingly and voluntarily agreed to participate in a scheme to defraud and that the

use of the interstate wires in furtherance of the scheme was reasonably

foreseeable.” Id.

The evidence in this case, including the testimony of the investors and the

forensic accountant, showed that Long and Cash Today, through its officers and

agents, made material misrepresentations to investors, regarding, inter alia, the

handling and use of investor funds, Cash Today’s relationship, or lack thereof, with

TeleCheck, and the nature of Cash Today’s business. Although this evidence

likely was alone sufficient for a jury to infer that Long intended to defraud the

28
investors, we need not so decide because Long testified in his own defense. We

have held that the testimony of a defendant, if discredited by the jury, “may be

considered as substantive evidence of the defendant’s guilt.” See United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 1995). Even more significantly, “where some

corroborative evidence of guilt exists . . . the defendant’s testimony, denying guilt,

may establish, by itself, elements of the offense. This rule applies with special

force where the elements to be proved for a conviction include highly subjective

elements: for example, the defendant’s intent or knowledge.” Id. at 314-15.

While Long testified that he did not intend to defraud Cash Today investors,

the jury was entitled to assess Long’s testimony and demeanor, make an adverse

determination as to his credibility, and reject his statements as a complete

fabrication. See United States v. Vazquez, 53 F.3d 1216, 1225-26 (11th Cir. 1995).

The jury also was entitled to conclude that the opposite of his testimony was true,

to wit, that he did participate in the scheme with the intent to defraud. See id. at

1226; Brown, 53 F.3d at 314 (“[W]hen a defendant chooses to testify, he runs the

risk that if disbelieved the jury might conclude the opposite of his testimony is

true.”) (quotation marks and citation omitted). Accordingly, the evidence was

sufficient to support Long’s convictions.

29
D. Long’s Sentence

1. Mass Marketing Enhancement

Long argues for the first time on appeal that the mass-marketing

enhancement was wrongly applied.8 Long concedes that he engaged in “targeted

electronic correspondence to approximately 114 persons,” but argues that this

conduct did not establish “a distinct mass marketing course of conduct as required

under U.S.S.G. § 2F1.1(b)(3).” Appellant’s Brief at 48. We review this issue,

raised for the first time on appeal, for plain error only. See Rodriguez, 398 F.3d at

1298. An error that is not clear under current law cannot be “plain.” United States

v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (per curiam). Accordingly,

“[w]hen the explicit language of a statute or rule does not specifically resolve an

issue, there can be no plain error where there is no precedent from the Supreme

Court or this Court directly resolving it.” Id. (quotation marks and citation

omitted).

Section 2F1.1(b)(3) of the 2000 version of the Guidelines provided for a

two-level increase in a defendant’s base offense level if the offense “was

committed through mass-marketing.” U.S.S.G. § 2F1.1(b)(3) (Nov. 1, 2000). The

commentary defines “mass-marketing” as “a plan, program, promotion, or

8
Long does not challenge the district court’s application of the multiple-victim
enhancement under U.S.S.G. § 2F1.1(b)(2).

30
campaign that is conducted through solicitation by telephone, mail, the Internet, or

other means to induce a large number of persons to . . . invest for financial profit.”

U.S.S.G. § 2F1.1 cmt. n.3.

Even assuming, arguendo, that the district court erred in applying the

enhancement under the facts of this case,9 Long cannot carry his burden under the

second prong of plain error review because the explicit language of U.S.S.G.

§ 2F1.1(b)(3) does not specifically resolve the issue and he has identified no

binding precedent, either from our circuit or the Supreme Court, supporting his

contention that the solicitation of 114 investors is insufficient to bring a defendant

within the scope of the mass-marketing enhancement. See Castro, 455 F.3d at

1253. Accordingly, the district court’s application of the § 2F1.1(b)(3)

enhancement cannot be plain error.

2. Double-Counting Claim

Long argues that the enhancement of his sentence under both U.S.S.G.

§ 2F1.1(b)(2) and (b)(3) constituted impermissible double counting. “We review

de novo a claim of double counting.” United States v. Dudley, 463 F.3d 1221,

9
We note that in this case, Long admitted to soliciting at least 114 investors via Internet
and telephone. Further, several investors testified that they received unsolicited e-mail
advertisements and subsequently were contacted by telephone by sales agents who induced them
to invest in Cash Today by promising them a high rate of return. Based on this evidence, the
district court reasonably could conclude that Long solicited a sufficiently “large number of
persons” to warrant application of the mass-marketing enhancement. See U.S.S.G. § 2F1.1 cmt.
n.3.

31
1226 (11th Cir. 2006). Long’s argument is foreclosed by United States v. Olshan,

371 F.3d 1296 (11th Cir. 2004), in which we held that applying both U.S.S.G.

§ 2F1.1(b)(2)(B) (scheme to defraud more than one victim) and (b)(3) (mass-

marketing) to the same conduct does not constitute impermissible double-counting

because “[t]he § 2F1.1(b)(2)(B) enhancement focuses on the victims harmed, while

the § 2F1.1(b)(3) enhancement focuses on the method of inflicting the harm.”10 Id.

at 1301.

3. Reasonableness of Long’s Sentence

Long argues for the first time on appeal that his sentence was procedurally

unreasonable because the district court treated his guidelines range as

presumptively reasonable and failed to comply with the statutory prerequisites in

18 U.S.C. § 3553(a).

We review a final sentence under a deferential abuse-of-discretion

standard.11 Gall v. United States, 552 U.S. —, 128 S. Ct. 586, 591 (2007). Under

10
Although the 1 November 2001 guidelines amendments — which eliminated the
enhancement for scheming to defraud more than one victim and moved the mass-marketing
enhancement into the victim-related specific offense characteristics as an alternative to the 2-
level adjustment for an offense involving more than 10 but fewer than 50 victims — appear to
bolster Long’s argument that applying both enhancements would constitute impermissible
double counting, we note that these amendments were in effect when we decided Olshan in
2004, and thus our holding in that case remains authoritative. See U.S.S.G. App. C, Amend. 617
at Reason for Amendment
11
Although Long failed to object below to the procedural reasonableness of his sentence,
we need not decide whether plain error is the appropriate standard of review because his
sentence can be affirmed as reasonable.

32
this standard, we will reverse a sentence imposed by the district court only if we

find that the district court has made a clear error of judgment, or has applied the

wrong legal standard. See United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.

2004) (en banc). A sentence may be procedurally or substantively unreasonable, or

both. See United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir. 2006). A

sentence may be procedurally unreasonable if the district court improperly

calculates the guidelines range, treats the guidelines as mandatory, fails to consider

the appropriate statutory factors, bases the sentence on clearly erroneous facts, or

fails to adequately explain its reasoning. See Gall, 552 U.S. — , 128 S. Ct. at 597.

Once we determine that the district court has committed no significant

procedural error, we review the substantive reasonableness of the sentence, which

requires us to consider the factors outlined in § 3553(a) and the district court’s

reasons for imposing the particular sentence. United States v. Williams, 435 F.3d

1350, 1355 (11th Cir. 2006) (per curiam).12 “The weight to be accorded any given

12
The § 3553(a) factors the court must consider are: (1) the nature and circumstances of
the offense and the history and characteristics of the defendant; (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the
defendant with needed educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the
Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to the victims. See 18 U.S.C. § 3553(a)(1)-(7).

33
§ 3553(a) factor is a matter committed to the sound discretion of the district court,”

and “we will not substitute our judgment in weighing the relevant factors because

our review is not de novo.” United States v. Williams, 456 F.3d 1353, 1363 (11th

Cir.) (quotation marks and citation omitted), cert. dismissed, 127 S. Ct. 3040

(2007), abrogated on other grounds by Kimbrough v. United States, 552 U.S. — ,

128 S. Ct. 558 (2007). Although we do not apply a presumption of reasonableness

to a sentence that is within the guidelines range, “ordinarily we would expect a

sentence within the Guidelines range to be reasonable.” United States v. Talley,

431 F.3d 784, 788 (11th Cir. 2005) (per curiam).

Upon review of the record, we conclude that Long’s sentence was both

procedurally and substantively reasonable. The district court correctly calculated

Long’s guidelines range, explicitly acknowledged that it had considered the

parties’ arguments as well as the § 3553(a) factors, and concluded that Long’s 72-

month sentence was sufficient but not greater than necessary to address the

seriousness of the offenses and to provide just punishment. Given the nature of

Long’s crimes and his lack of remorse, we cannot conclude that his sentence was

substantively unreasonable in light of pertinent section 3553(a) factors.

III. CONCLUSION

Long appealed his convictions and sentences for conspiracy to commit mail

34
and wire fraud and substantive wire fraud. We conclude that: (1) the district court

properly denied Long’s motion to suppress; (2) the alleged trial errors, even when

viewed cumulatively, did not amount to reversible error; and (3) there was

sufficient evidence from which a reasonable jury could have found Long guilty of

the charged offenses. We also find that Long’s 72-month sentence was both

procedurally and substantively reasonable. Accordingly, Long’s convictions and

sentences are AFFIRMED.

35