[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 23

- 10412

____________________
UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

versus FELIX SANTOYO, MICHELLE CLAS, FELICHA SANTOYO,

Defendants

- Appellants.

____________________ Appeal s from the United States District Court for the Middle District of Florida D.C. Docket No. 8:21

- cr

- 00367

- WFJ

- TGW

- 2

____________________ USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 1 of 282 Opinion of the Court 23

- 10412

Before R OSENBAUM , N EWSOM , and A BUDU , Circuit Judges.

PER CURIAM : This case is about a ghost

- working scheme. After a jury trial, Defendants Felix Santoyo, Felicha Santoyo, and Michelle Clas were convicted of conspiracy to commit mail and wire fraud for collecting paychecks for work they did not perform. On appe al, they claim that insufficient evidence supported their convictions and that an alleged material variance between the conspiracy charged in the indictment and that proven at trial prejudiced them . After careful consideration, and with the benefit of ora l argument, we affirm their convictions.

I. BACKGROUND

A. Factual Background 1
As we’ve noted, this case concern s a ghost

- working scheme

at Ceres Marine Terminals, Inc., which serviced cruise ships at the Port of Tampa . In short, the co

- conspirators submitted f raudulent time sheets to obtain paychecks for work not actually performed. Michael Ruff, Ceres’s Operations Manager for the Port of Tampa, was the mastermind of th e scheme. The co

- conspirators included

1 We recount the facts from the evidence presented at trial and in the light most favorable to the verdict. See United States v. Verdeza , 69 F.4th 780, 785 n.1 (11th Cir. 2023). USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 2 of 2823

- 10412 Opinion of the Court 3

Ruff’s half

- brother, Felix Santoyo; Ruff’s half

- sist er, Felicha Santoyo; and Felicha’s partner, Michelle Clas (collectively, “Defendants”). 2
Ceres had a collective

- bargaining agreement with the International L ongshoremen’s Association, Local 1402, for work at the Port of Tampa . When a ship was due in port, Ruff submit ted a labor order, and the union suppl ied members accordingly. But if the union could not supply enough members, non

- union members, known as “casuals,” could perform the work instead. “Casuals” still had to report to the union hall for w ork , so the union supplied all workers at the Port. And Ruff had no “nonunion direct reports.”Union members chose jobs before “casuals,” so they “overwhelmingly” filled the more desirable jobs, like water man, porter, and forklift driver. Hours were t ypically 7 a.m. to 4 p.m. , and there was “no work” for workers to do after the ships left. Union leaders, known as “headers,” gave “timekeepers ” the crew members’ names. Timekeepers , in turn, populate d time sheets, which Ruff review ed , edit ed , and uploa d ed for processing through Ceres’ s headquarters in Tennessee. Under this structure,individual workers did not “punch in,” complete their own timesheets, or otherwise submit their hours. And under the collective

bargaining agreement, workers were paid fo r a certain number of hours no matter their actual time worked, so the timekeeper was not required to submit the “on and off times” for each person.

2 To avoid confusion, we refer to the Santoyo s by their first names. USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 3 of 284 Opinion of the Court 23

- 10412 After Ceres printed its paychecks, a common carrier delivered them to a UPS office in Florida, and Ruff pi cked them up for distribution at the union hall. Ceres paid Felix, Felicha, and Clas through this system. Felix received $57,823.88 for 2,267.5 hours of “work” between July 2013 and December 2016. Felicha received $14,980.19 for 594 hours of “work” bet ween September 2015 and November 2016. And Clas received $2,807.00 for 121.5 hours of “work” between March and November 2016.
Ruff submitted Form W

- 4s and other employment paperwork for Felix, Felicha, and Clas. Felix, Felicha, and Clas obtained Port I Ds, required to access the Port of Tampa cruise terminals. [ As part of their Port ID applications, Ruff certified that Ceres was their employer, and they needed access to secure areas of the port “as part of [their] employment.” And Felicha and Clas sign ed each other’s Port ID applications, specifically the part entitled “For Port Use Only.” A person with business in the terminals could obtain a visitor pass five times in a ninety

- day period but otherwise was required to display a Port ID at all times. Transportation Workers Identification Credentials (“TWIC”) , issued by the federal Transportation Security Administration, were also required to access nearly all the areas inside thecruise terminals, including the areas where workers loaded and unloaded ships. Longtime union members testified that both union workers and “casuals” needed both a Port ID and TWIC card. But Felix, Felicha, and Clas did not obtain or attempt to obtain a TWIC USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 4 of 2823

- 10412 Opinion of the Court 5
card. TWIC holders (like Ruff) could escort up to five people to

t he dock but had to remain with them. So Ruff could not escort multiple individuals working different jobs to different areas of the port at the same time.If an individual worked at least 700 hours in a year, he became eligible for benefits. In 2016, F elix was on the list of eligible workers. A union employee reviewed the list but didn’t recognize Felix’s name. She asked senior union members, who didn’t recognize Felix’s name either . So she asked Ruff, who told her to remove Felix from that list. Sh e did not do so. Felix completed benefits paperwork, and Ceres sent him a check for vacation and holiday pay. At some point, the Ceres supervisor who oversaw the Port of Tampa was contacted about the Santoyos. And the conspiracy was revealed.
A federa l grand jury indicted Defendants and other alleged

co

- conspirators

— Ruff, Jose Trujillo, and Stephanie Telesmanick 3

— on one count of conspiracy to commit mail and wire fraud in

3 Ruff pled guilty before trial and was sentenced to 41 months of incarceration, plus $174,751.89 in restitution (jointly and severally with his codefendants). After Defendants’ trial, Trujillo pled guilty to conspiracy to commit wire and mail fraud, in violatio n of 18 U.S.C. § 371, pursuant to a superseding information, and was sentenced to 12 months of incarceration

. Telesmanick entered into a diversion program, through which her case was ultimately dismissed. Jerry Reyes, who the indictment identified but di d not charge, also pled guilty in his separate case and was sentenced to five years’ probation. Case No. 8:18

- cr

- 287

- T

- 17MAP (M.D. Fla.). USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 5 of 286 Opinion of the Court 23

- 10412 violation of 18 U.S.C. § 1349. The indictment approximated the proceeds of the fraud to be $113,000.

B. Trial Evidence Defendants proceeded to a three

- day trial. We organize the trial evidence into three categories: (1) union employee testimony
, (2) co

- co nspirator testimony , and (3) “impossibility” evidence. 1. Union Employee Testimony
S ix longtime union members testified that they did notknow or recognize Defendants, by name or otherwise. One witness testified that “99 percent of our local is [B] lack” and male, so a Hispanic or female worker would have “st[ood] out to” him. (The Santoyos are Hispanic, and Felicha and Clas are women). Anotherwitness testified that very few women worked as forklift operators

— he could recall only one female forklift ope rator, who was Black.What’s more, union witnesses testified that the jobs that Defendants were listed as performing (water man, porter, and forklift operator) were the most popular with senior union members, so it would be unusual for “casuals” like Def endants to fill those roles at all, much less on a regular basis

. And a forklift operator had to be certified, which required a 20

- hour class and a test. Defendants called four other longtime union members to testify that they did recognize or work with Defendants . One witness testified that he had seen Felix, Felicha, and Clas working at the Port “occasionally ,” while another claimed he had seen Felix USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 6 of 2823

- 10412 Opinion of the Court 7

“of ten” (but not Felicha or Clas). Another testified that Felichaworked at the Port “at the most at least like about five times. Another said that he had seen Clas “working on the dock every now and then with” Felicha.
2. Co

- Conspirator Testimony
Telesm anick and Reyes testified at trial. First, Telesmanick testified that, though she never performed any work at the Port, Ceres paid her $875 in checks that she and her then

- husband cashed. Telesmanick thought Ruff was her husband’s boss, but her husband l acked identification documents. So Ruff asked Telesmanick to complete a W

- 4 so her husband could get paid, since theywere filing tax returns jointly. Telesmanick testified that Defendants were her neighbors, but she did not conspire with them. Reyes s imilarly testified that he received $10,862.94 in paychecks from Ceres in 2015 and 2016, even though he never worked at the Port of Tampa. Ruff proposed registering Reyes as an employee and obtaining paychecks in Reyes’s name. Reyes split the checks with Ruff. Reyes confirmed that he did not know or interact with Felix, Felicha, or Clas. 3. “Impossibility” Evidence Finally, the Government presented evidence that Defendants could not possibly have worked the hours for which Ceres paid them. In the mos t obvious example of this type of evidence , the Government introduced timesheets that show that Felix work ed more than 24 hours on certain days. And on at least one of those days, Felix’s bank card (which wa s solely in his name) was used in USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 7 of 288 Opinion of the Court 23

- 10412

the Miami area , even though Felix was allegedly working at that time at the Port of Tampa

. 4 Similarly, Felicha’s bank card ( which

was solely in her name) was used in Miami on several days that she purportedly worked at the Port of Tampa.The Government also called Felix and Clas’s former employers to testify that they worked full

- time while they were purportedly also working at the Por t of Tampa. According to the trial evidence, Felix worked full

- time in Doral (near Miami) from 2012 or 201 3 through 2014

. And he has worked full

- time for another (Tampa

- area) company since January 2015. Similarly, Clas’s former employer testified that C las worked full

- time from March 2016 through June 2020 and never mentioned having another job

. Also in the “impossibility” category, Felix purportedly worked for 69 days, and Felicha purportedly worked for 30 days, before receiving a Port ID. None of th e Defendants applied for orobtained a TWIC card at any point. And Ceres had no forklift certification for Felix, Felicha, or Clas, even though they purportedly worked as forklift operators several times. Last, though it does not fi t cleanly into these categories, Felix’s bank records showed that, during the relevant period, he wrote at least 17 checks to Ruff in amounts ranging from $89 to $1343 and totaling $9000, some with the memo “Loan payment” or “Loan (Personal).”

4 Miami and Tampa are roughly 300 miles (at least a four

- hour drive) apart. USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 8 of 2823

- 10412 Opinion of the Court 9

C. Procedural Histor y
At the close of the Government’s case, Defendants moved for judgment of acquittal. See Fed. R. Crim. P. 29(a). Defense counsel argued that the Government’s evidence was “entirely circumstantial” and insufficient to prove the elements of conspiracy. The district cou rt reserved ruling on that motion

. It later denied Defendants’ motion, finding that the evidence sufficiently support ed the jury ’ s verdict

. After trial, the jury convicted each defendant of one count of conspiracy to commit wire and mail fraud, in violation of 18 U.S.C. § 1349. The district court sentenced Felix to five years of probation and imposed a $57,823.88 restitution judgment. It als o sentenced Felicha to five years of probation and imposed a $14,980.89 restitution judgment. And it sentenced Clas to three years of probation and imposed a $2,807.00 restitution judgment. Defendants do not challenge their sentences on appeal.

II. STANDARD S OF REVIEW We review a district court’s denial of a motion for judgment of acquittal de novo. United States v. Chafin , 808 F.3d 1263, 1268 (11th Cir. 2015). Our review is “comparable to the standard used in reviewing the sufficiency of the evidence to s ustain a conviction.” United States v. Bergman , 852 F.3d 1046, 1060 (11th Cir. 2017) (citation and internal quotation marks omitted)

. So we view the evidence in the light most favorable to the Government and draw all reasonable inferences and credibility choices in favor of the jury USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 9 of 2810 Opinion of the Court 23

- 10412

verdict. 5 See Chafin , 788 F.3d at 1 268. And we will neither “overturn a guilty verdict” nor “ disturb the denial of a Rule 29 motion so long as a reasonable trier of fact could find guilt beyond a reasonable doubt .” Id.

We will reverse a conviction based on a variance betweenthe indictment and trial evidence only if that variance (1) was material and (2) substantially prejudiced the defendant

. See United States v. Calderon , 127 F.3d 1314, 1327 (11th Cir. 1997). In conduc ting that inquiry, we view the evidence in the light most favorable to the Government. United States v. Richardson , 532 F.3d 1279, 1284 (11th Cir. 2008)

. III. DISCUSSION On appeal, Defendants raise two challenge s to their convictions. First, Defendants claim that the district court erred in denying their motions for judgment of acquittal because insufficient evidence supported their convictions. Second, Defendants assert that

a n alleged material variance between th e conspiracy charged in the indictment and that proven at trial prejudiced them . Both challenges fail.

5 The Government correctly notes that we are limited to the evidence presented during its case

- in

- chief, since the district court reserved ruling on the defense’s first Rule 29 motion. See United States v. Moore , 504 F.3d 1345, 1346 (11th Cir. 2007) ; Fed. R. Crim. P. 29(b). USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 10 of 2823

- 10412 Opinion of the Court 11

A. Sufficient evidence supported Defendants’ convictions. “Because the crime of conspiracy is predominantly mental in composition, it is frequently nece ssary to resort to circumstantial evidence to prove its elements.” United States v. Vernon , 723 F.3d 1234, 1273 (11th Cir. 2013) (quoting United States v. Toler , 144 F.3d 1423, 1426 (11th Cir. 1998) ). But we have repeatedly stated that

“ [t] he test for su fficiency of evidence is identical regardless of whether the evidence is direct or circumstantial, and no distinctionis to be made between the weight given to either direct or circumstantial evidence.” United States v. Guevara , 894 F.3d 1301, 1307 (11th Cir. 2018) (citation and internal quotation marks omitted)

. Here, t he Government presented sufficient circumstantial evidence to support Defendants’ convictions

. Before we identify that evidence, we recount the relevant legal framework.A conspiracy requires proof of three elements: “(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) (citation and internal quotation marks omitted). “The essence of the conspiracy is this agree ment to commit an unlawful act.” United States v. Chandler , 388 F.3d 796, 805 (11th Cir. 2004)

. 1. Agreement First, the unlawful objective of this conspiracy was mail and wire fraud. Mail and wire fraud requires “ (1) intentional USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 11 of 2812 Opinion of the Court 23

- 10412
participation in a sch eme to defraud, and, (2) the use of the interstate mails or wires in furtherance of that scheme.” United States v. Maxwell , 579 F.3d 1282, 1299 (11th Cir. 2009). No part y disputes that sufficient evidence supports the second piece

. Nor could they

— Ruff u sed interstate wires to upload the fraudulent timesheets, and Ceres mailed the paychecks through an interstate carrier. And Ruff’s scheme defrauded Ceres out of over $100,000

. Defendants c ontest their “agreement” and “intentional participation” in the s cheme . B ut the evidence supports the conclusion that the y were not mere unwitting participants

. Defendants submitted W

- 4s, applied for Port IDs, and, in Felix’s case, even applied for union benefits. Ruff had to sign those Port ID applications and attes t that Ceres was Defendants’ employer. Defendants intended to get paid by Ceres. And circumstantial evidence indicated that Felix, at least, shared some of his proceeds with Ruff. From this evidence, a jury could reasonably conclude that Defendants agre ed with Ruff to defraud Ceres by accepting paychecks for work they did not perform. So the first element of conspiracy is satisfied here. 2. Knowing and Voluntary Participation Second, sufficient evidence supported a jury finding that Defendants knowingl y and voluntarily participated in the conspiracy.A defendant need not know of or agree to “every aspect of the conspiracy” so long as he “knew of [its] essential nature.” Bergman , 852F.3d at 1065 (citation and internal quotation marks omitted). Indeed, “a defendant can be convicted even if his or her participation USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 12 of 2823

- 10412 Opinion of the Court 13 in the scheme is ‘slight’ by comparison to the actions of other co

conspirators.” Toler , 144 F.3d at 1428. And a j ury can infer such participation “through proof of surrounding circumstances such as acts committed by the defendant which furthered the purpose of the conspiracy.” United States v. Wheeler , 16 F.4th 805, 823 (11th Cir. 2021) (citation and internal quotat ion marks omitted)

. Defendants maintain that they performed legitimate work at the Port. And even if Ruff was inflating their hours, they contend, they did not know he was doing so. We are not persuaded. We return to the three categories of trial evidenc e. See I.B, supra

. To recap, first, multiple longtime union members testified that they did not know or recognize Defendants and that it would be unusual for “casuals” to regularly perform the jobs Defendants purportedly performed. To be sure, Defendant s called witnesses who testified to the opposite. But because the district court reserved ruling on Defendants’ Rule 29 motion, we consider only the Government’s evidence for the purposes of our sufficiency review. See Moore , 504 F.3d at 1346

. But even if we consider ed defense evidence, the jury was entitled to find the Government’s union witnesses more credible. And e ven if it credited the defense witnesses in full, the jury could have concluded that Defendants performed some legitimate work at the Po rt but not enough to warrant the amount of their paychecks. For example, the jury could have credited one witness’ s testimony that he saw Felix work at the Port “occasionally” on “miscellaneous jobs” but still find that Felix did not work the USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 13 of 2814 Opinion of the Court 23

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2,267.5 hour s for which Ceres paid him. Similarly, the jury could have credited another witness’ s testimony that she saw Felicha and Clas work at the Port “at the most at least like about five times” but still find that they did not work 594 and 121.5 hours, respecti vely. Defendants apparently assert that the jury should have believed their witnesses over the Government’s . B ut it is not our role on sufficiency review to reweigh the evidence. Nor must the evidence render the jury’s verdict “inevitable” so long as it is “reasonable.” See, e.g. , United States v. Browne , 505 F.3d 1229, 1253 (11th Cir. 2007)

. The second category of trial evidence further supported the jury’s finding. Again, both Telesmanick and Reyes

— who pled guilty to conspiracy

— testified that Ruff recruited and paid them,though they never worked at the Port. While some factual differences exist between Defendants’ positions and those of Telesmanick and Reyes, a jury could have reasonably concluded that Ruff engaged in the same scheme with Telesmanick, Reyes, and Defendants. Finally, we turn to the third category: the “impossibility ” evidence. From this evidence, a jury could reasonably have concluded that Defendants did not work

— and indeed could not have worked

— all (or any) o f the hours for which they were paid. For instance, Felix worked a full

- time job in Doral through 2014, so a jury could conclude that he could not possibly have worked full

time at the Port of Tampa as well. And a jury could have rejected defense counsel ’s theory that Felix regularly made the four

- hour drive from Doral to Tampa

. What’s more, Felix could not possibly USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 14 of 2823

- 10412 Opinion of the Court 15 have worked more than 24 hours in a day, yet he was paid for 25, 26, or even 27 hours on certain days. The Government also presented eviden ce of Clas’s full

- time job during the relevant period
, so a jury could reasonably conclud e that she could not possibly have worked full

- time at the Port as well. And on several days on which Felix and Felicha purportedly worked at the Port of Tampa, thei r bank cards were used (with a PIN 6 ) in the Miami area. Again, a jury could exercise its common sense to conclude that Felix and Felicha were not in both Miami and Tampa on the same day. See United States v. Gomez

- Castro , 605 F.3d 1245, 1249 (11th Cir. 2010) (“[K]nowledge can be inferred reasonably based on ordinary human experience for which no special proof is required; a trier of fact can rely on common sense.”).Rounding out this category, the Government elicited testimony from several witnesses that both a Port ID and TWIC card

w ere required to work at the Port, yet Defendants did not have TWIC cards. Ceres also paid Felix and Felicha for work before they even applied for Port IDs

. A jury could reasonably conclu d e that, without a valid Port ID and TWIC card, Defendants could not have

6 A PIN is a perso nal identification number, which provides an additional layer of security for bank

- card transactions. See Julia Kagan, Personal Identification Number (PIN): What It Is, How It’s Used , Investopedia (Mar. 9, 2024), https://www.investopedia.com/terms/p/personal

- identification

- number.asp [ https://perma.cc/6PLW

- KYJJ ]

. So while another person could theoretically have used Felix or Felicha’s bank card, they would need to have known the PIN. See id. USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 15 of 2816 Opinion of the Court 23

- 10412performed the work they were paid for. The same goes for Defendants’ lack of forklift certifications. In sum, between the union employees’ testimony, the co

conspirators’ testimony, and the “impossibility” evidence, the jury had sufficient evidence to conclude that Defendants accepted paychecks for work they did not perform and thus participated in the conspiracy. What remains is whether Defendants did so knowingly and voluntarily. See McQueen , 727 F.3d at 1153.

We have found that defendants ’ personal profits, especiallyin amounts exceeding those to which they were reasonably entitled, can be circumstantial evidence that they knew of and voluntarily joined a conspiracy. See, e.g. , United States v. Navarro

- Ordas
, 770 F.2d 959, 966 (11th Cir. 1985) (rejecting sufficiency challenge where defendant “stood to profit personally from the conspiracy”) ; United States v. Maurya , 25 F.4th 829, 841 (11th Cir. 2022) (evidence that defendant “received far more money than he could have expected from ordinary distributions” supported finding that he knowingly joined wire

- fraud conspiracy) ; cf. also United States v. Naranjo , 634 F.3d 1198, 1207 (11th Cir. 2011) (“Evidence that a defendant personally profited from a fraud may provide circumstantial evidence of an intent to participate in that fraud.”) ; United States v. Pearlstein , 576 F.2d 531, 542 (3d Cir. 1978) (“over

- generous compensation also may implicate a defendant in allegedly illicit activity, or at least serve to put him on notice of suspicious dealings”)

. Here, Defendants profited from their participation in the fraudulent

timesheet scheme. And even if they performed some legitimate USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 16 of 2823

- 10412 Opinion of the Court 17 work, their inflated paychecks contained “more money than [they] could have expecte d,” which should have put them on notice that something unlawful was afoot. See Mau r ya , 25 F.4th at 841

. Defendants rely chiefly on United States v. Parker , 839 F.2d 1473 (11th Cir. 1988) , but that case is distinguishable. In Parker
, we reversed brokers ’ convictions for conspiracy to commit wire fraudbased on the brokerage president’s scheme to fraudulently sell under

- collateralized investment instruments

. Id. at 1475. We reasoned that the brokers did not necessarily know that the president’s represen tations were fraudulent , n or did they otherwise agree to defraud customers

. See i d. at 1478. Here, by contrast, Defendants accepted the paychecks , so they knew or reasonably should have known that they were being paid for work they did not perform. In other words, the defendants in Parker may not have known they

were participating in fraud, but drawing all reasonable inferences in favor of the jury’s verdic t, we cannot conclude that Defendants

were similarly unaware. Separately, Defendants point to the indictment’s language to argue that the Government failed to prove its case. Defendants claim that the Government presented evidence that they interacted wi th Ruff but “ no evidence that any of them met with or interacted with each other to promote or further the conspiracy. ” They also contend that insufficient evidence supported the conclusion that they gave Ruff a portion of their paychecks. Both arguments are unavailing. USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 17 of 2818 Opinion of the Court 23

- 10412 First, the Government did not have to prove each alleged “Manner and Means” in the indictment. The indictment charged the manner and means of the conspiracy in the conjunctive, meaning the jury need ed to find beyond a reasonable doubt o nly that Defendants conspired in one of the charged ways . See United States v. Kincherlow , 88 F.4th 897, 905

– 06 (11th Cir. 2023). Indeed
, “ the verdict stands if the evidence is sufficient with respect to any one of the acts charged. ” United States v. Ri vera , 77 F.3d 1348, 1351 (11th Cir. 1996) (quoting Turner v. United States , 396 U.S. 398, 420 (1970) ). To be sure, the indictment stated that Defendants would “share their proceeds with” Ruff and “engage in meetings . . . to promote and achieve the objects of the conspiracy.” But the charged “Manner and Means” also included Defendants’ receipt of “payroll checks fraudulently obtained from Ceres and payable to” Defendants. As charged, that manner of conspiracy require d neither meetings between the alleged co

- conspirators nor kickbacksto Ruff. So while the Government could have drafted the indictment more precisely, it was not required to do so to survive a sufficiency challenge.But even for the sake of argument, it seems highly implausible that Defendant s never “interacted with each other” to “further the conspiracy.” Felix, Felicha, and Ruff are siblings, and Clas isFelicha’s longtime partner. A jury could reasonably infer that family members participating in the same conspiracy were aware of or discu ss ed each other’s participation in that conspiracy. See United States v. Brantley , 68 F.3d 1283, 1288 (11th Cir. 1995) ( reasoning that USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 18 of 2823

- 10412 Opinion of the Court 19

the “ personal relationship ” between the defendant and his wife’s brother made the defendant’s lack of knowledge “unlikel y”). And Defendants certainly interacted with Ruff in furtherance of the conspiracy. See Toler , 144 F.3d a t 1428 (“a defendant ’ s guilt can be established if his or her contact extends to only a few or even one of the co

- conspirators so long as the agreement

. . . and the defendant ’ s intent to participate in achieving its illegal ends, is proven beyond a reasonable doubt ”). Defense witnesses also testified that they saw Felix “work” with Ruff and Felicha “work” with Clas at the Port. A jury reasonab ly could have inferred that Defendants performed some legitimate work (or pretended to do so) at the Port to evade detection of the fraud and in turn further the conspiracy. See United States v. Reeves , 742 F.3d 487, 500 (11th Cir. 2014) (“[E]fforts to co nceal a conspiracy may support the inference that a defendant knew of theconspiracy and joined it while it was in operation.”). And according to the trial evidence, Defendants interacted with each other when they did so. Defendants’ second argument is s imilarly unavailing. To be sure, the Government did not present evidence that Felicha and Clas paid kickbacks to Ruff. But it did so for Felix

. A nd while the evidence was circumstantial, a jury reasonably could have infer red that Felix’s repeated checks to Ruff during the relevant period were kickbacks of the proceeds from the fraudulent scheme. Felix claims that any payments to Ruff “could have been made in thanks for Ruff having secured work for Santoyo” or simply “to support” USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 19 of 2820 Opinion of the Court 23

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his brother
, but a jury was entitled to reject those theories. See , e.g. , Browne , 505 F.3d at 1253 (“ the jury is free to choose between or among the reasonable conclusions to be drawn from the evidence presented at trial ” (citation and internal quotation marks omitted)). And in any case , the payment of kickbacks was not an essential element of the conspiracy. At its core, the conspiracy’s object was to fraudulently obtain paychecks for work not actually performed. At bottom, the evidence need not “ exclude every reasonablehypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt” to survive a sufficiency challenge. United States v. Garcia , 447 F.3d 1327, 1334 (11th Cir. 2006) (citation and internal quotation marks omitted). We conclude that the evidence cleared that standard with respect to Defendants’ knowing and voluntary participation in the conspiracy

. 3. Overt Act Returning to the elements of conspiracy , the overt

- act requirement is easily satisfied here ( and Defendants do not contest that ). At a minimum, Ruff submitted fraudulent timesheets to Ceres and picked up inflated paychecks from an interstate carrier. That is enough. So sufficient evidence supported each element of Defendants’ conspiracy conviction s, and we reject Defendants’ sufficiency challenge. USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 20 of 2823

- 10412 Opinion of the Court 21

B. Defendants were not prejudiced by any variance between the indictment and trial evidence. We turn now to Defendants’ variance arguments. We will

reverse a conspiracy conviction based on a variance betwee n the conspiracy charged in the indictment and the trial evidence only ifthe variance (1) is material and (2) substantially prejudiced the defendant. Calderon , 127 F.3d at 1327; United States v. Coy , 19 F.3d 629, 633 (11th Cir. 199 4 ). Even if Defendants have shown a material variance here
, they were not prejudiced.
1. Material Variance A variance is not material if, viewing the evidence in the light most favorable to the verdict , a reasonable jury could have found that a single conspiracy existed. Cal deron , 127 F.3d at 1327. Three factors inform that inquiry : “(1) whether a common goal existed, (2) the nature of the scheme underlying the crimes charged, and (3) the overlap of participants.” Richardson , 532 F.3d at 1284 (citation and internal quotatio n marks omitted). We apply those factors below. First, a jury could reasonably have found that the co

- conspirators shared a common goal: to defraud Ceres out of money by accepting payment for work not actually performed. We define the “common goal” requi rement “as broadly as possible.” Richardson , 532 F.3d at 1285 (citation and internal quotation marks omitted); cf. also U nited States v. Huff , 609 F.3d 1240, 1244 (11th Cir. 2010) ( finding “a common goal” where alleged co

- conspirators “worked in concert to defraud the government for their personal benefit”); USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 21 of 2822 Opinion of the Court 23

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Coy , 19 F.3d at 633 (suggesting that “common crime” of “fraud” can satisfy “common goal” requirement). To be “common,” a goal need onl y be “ ‘similar’ or ‘substantially the same’ rather than ‘shared’ or ‘coordinate.’” Calderon , 127 F.3d at 1327 (quoting Coy , 19 F.3d at 633). Here, the jury reasonably could have found thatDefendants each accepted and cashed Ceres paychecks without doing any work (or without doing some of the work for which they were paid), and that they did so with the “same,” see id. , goal of profiting financially. Second, the nature of the scheme was consistent across the alleged co

- conspirators. Namely, “ each cocons pirator worked with [Ruff] according to [Ruff’ s ] general scheme ,” even if they did not all “work[] together.” See Richardson , 532 F.3d at 1285. Third, the participants overlapped. Each defendant conspired with Ruff, who “played a central role.” See id

. Under our precedent, evidence that a “key man” “ knowingly involved himself with each conspiratorial act proved at trial is enough for the jury to have concluded that a single conspiracy existed. ” Id. at 1286; see also United States v. Edouard , 485 F.3d 1324, 1347 (11th Cir. 2007) (“the finding of a single conspiracy is permitted where a ‘key man’directs and coordinates the activities and individual efforts of various combinations of people”). And we have found co

- conspirators’ “relationship with each other” to be relevant to this factor. See Huff
, 609 F.3d at 1244 (finding substantial overlap in part because alleged

co

- conspirators were “good friends and fishing buddies” and engaged in fraud during the same time period ); United States v. Holt
, USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 22 of 2823

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777 F.3 d 1234, 1264 (11th Cir. 2015) (same, where alleged co

- conspirators “knew and interacted with” and had “direct connections with” each other). Based on this analysis, all three factors weigh in favor of finding no material variance here. Still, Defendants contend that the jury could not have found a single conspiracy, because Ruff’s scheme was a “ rimless wheel.”
In a “hub

- and

- spoke” conspiracy, a “ central core of conspirators recruits separate groups of co

- conspirators to carry out the various functions of the illegal enterprise. ” Chandler , 388 F.3d at 807 . The core conspirators are the “hub,” and each separate group of co

- conspirators is a “spoke.” See id. And “[t]he core conspirators move from spoke to spoke, directing the functions of the conspiracy. ” Id. Whe n “the various spokes are aware of each other and of their common aim,” there is a single conspiracy. United States v. Seher , 562 F.3d 1344, 1367 (11th Cir. 2009) . But “ where the ‘ spokes ’ of a conspiracy have no knowledge of or con nection with any other, dealing independently with the hub conspirator, there is not a single conspiracy, but rather as many conspiracies as there are spokes. ” Chandler , 388 F.3d at 807

. Such a conspiracy is a so

- called “rimless wheel” conspiracy. See K otteakos v. United States , 328 U.S. 750, 755 (1946) ; Dickson v. Microsoft Corp. , 309 F.3d 193, 203

– 04 (4th Cir. 2002) (“a wheel without a rim is not a single conspiracy”)

. Defendants are arguably correct that Ruff’s scheme was a “hub

- and

- spoke” conspiracy, with himself as the “hub” and each“ghost worker” as a separate spoke. On this record, at least portions of the “wheel” were “rimless”

— there is no evidence that USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 23 of 2824 Opinion of the Court 23

- 10412 Reyes knew of Defendants or that Defendants knew of him. And there was no mention of Trujill o at trial. Telesmanick is a closer call because she was Defendants’ neighbor
, so the jury could reasonably infer that Defendants knew she was also part of the fraudulent scheme. But if at least one co

- conspirator was unaware of the others or of the comm on scheme, that spoke “ acted independently and was an end unto itself. ” See Chandler , 388 F.3d at 812; see also United States v. Rosnow , 977 F.2d 399, 406 (8th Cir. 1992) (finding rimless “wheel” conspiracy where alleged co

- conspirators acted “to benefit themselves individually” and “did not care about the success of the other defendants”). That said, “[i]t is irrelevant that particular conspirators may not have known other conspirators or may not have participated in every stage of the conspiracy; all that the [G] overnment must proveis an agreement or common purpose to violate the law and intentional joining in this goal by coconspirat ors. ” Richardson , 532 F.3d at 1284 (citation and internal quotation marks omitted); see also United States v. Dorsey , 819 F.2d 1055, 1059 (11th Cir. 1987) ( “While each defendant must have joined the conspiracy intentionally, each need not be privy to all the details of the conspiracy or be aware of all the other conspirators.” ). And the facts here are markedly distinguishable from our leading “rimless wheel” case, Chandler

. In Chandler
, the Government charged 43 defendants with conspiracy to commit mail f raud for submitting stolen Monopoly game stamps to McDonald’s and collecting prize money. See 388 F.3d at 799. The “hub” conspirator, Jacobson, embezzled winning USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 24 of 2823

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stamps and used “recruiters” to solicit “winners” to collect the prize money

. Id. They t he n share d the money with Jacobson. Id. Those “recruiters” and “winners” were charged as co

- conspirators. Id. But the alleged co

- conspirators did not know about Jacobson’s theft. Id. at 806

– 07. Indeed, Jacobson admitted at trial, “ not one of his recruiters ” or winners “ knew any of the others, or even about his theft of the stamps. ” Id. at 807. We found that the scheme was a “rimless wheel ” conspiracy, because Jacobson “moved alone” from “spoke to spoke,” and there was “no connection what soever between the various spokes of Jacobson’s scheme.” Id . at 807

– 08. Here, unlike the “winners” in Chandler , Defendants knew the “hub” conspirator, Ruff. See Huff, 609 F.3d at 1244 n.2 (distinguishing Chandler because alleged co

- conspirators “interac ted with one another” and with the “hub” conspirators). And Defendants knew of each other’s existence and had reason to know that theywere all receiving fraudulent paychecks from Ceres. Most importantly, while the Chandler “winners” had no reason to kno w that the game stamps were stolen, Defendants had reason to know their paychecks were fraudulent, i.e., that they were getting paid for work they didn’t perform. Chandler does not compel us to find a material variance here. 2. Prejudice
But even if we assume a material variance for the sake of argument, Defendants cannot show prejudice. 7 P rejudice

7 Felicha makes no prejudice

- related arguments other than the bare assertion that she was “substantially prejudiced.” Because she raises the issue “ in a USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 25 of 2826 Opinion of the Court 23

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materializes if (1) a defendant is depriv ed of fair notice of the crimes for which he will be tried , or (2) the re is a “ spillover ” effect from evidence of other crimes at trial. United States v. Glinton , 154 F.3d 1245 , 1252 (11th Cir. 1998) . A “spillover effect” occurs if there are “so many defendants and separate conspiracies before the jury that there is a substantial likelihood that the jury transferred proof of one conspiracy to a defendant involved in another.” Calderon, 127 F.3d at 1328 . Defendants cannot make either showing here.First, Defendants were not deprived of fair notice in preparing their defenses. Whether the indictment char ged a single conspiracy or multiple conspiracies, Defendants knew they would have to defend against allegations that they each conspired with Ruff to defraud Ceres by cashing paychecks for work they did not perform. Cf. id. (finding it “ unlikely that the defense at trial would have variedbecause, in either event, the underlying crimes charged and elements of proof would have been identical ”)

. The material

- variance rule is intended to protect defendants from prosecutions based “on an entirely different th eory.” See Chandler , 388 F.3d at 798. Indeed, “[i]ll

- defined charges leave ‘the prosecution free to roam at large

— to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal.’” United States v. Adkinson , 135 F.3d 1363, 1374 (11th Cir. 1998) (quoting Russell v. United States , 369 U.S. 749, 768 (1962)). Here, any variation between the

perfunctory manner without supporting arguments or authority
, ” it is abandoned. Sapuppo v. Allstate Floridian Ins. , 739 F.3d 678, 681 (11th Cir. 2014). By contrast, Felix and Clas b riefed the prejudice issue

. USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 26 of 2823

- 10412 Opinion of the Court 27 indictment and trial evidence did not rise to the level of “an entirely different theory,” see Chandler , 388 F.3d at 798, or a “roam[ing]” prosecution , see Adkinson , 135 F.3d at 1374, such that Defendants were prejudiced. Second, Defendants were not substantially prejudiced by any “spillover ” effect. Felix argues that he was less culpable than Telesmanick and Reyes because he performed some legitimate work at the Port, and he was prejudiced by any association with them. But even if the alleged co

- conspirators had been charged in separate indictments , the Government likely would have called Reyesand Telesmanick to testify, leaving Defendants to distinguish themselves from these quintessential “ghost workers.” Cf. Richardson
, 532 F.3d at 1287 (reasoning that alleged co

- conspirator testimony would hav e been admissible as “knowledge” evidence under Fed. R. Evid. 404(b)). In any event, the evidence was not so complex that the jury could not distinguish between Defendants and the other “ghost workers.” Cf. United States v. Caporale , 806 F.2d 1487, 1501 (11th Cir. 1986) (fraud “ case involving eleven defendants and two possible conspiraci es [was] not so complex by definition that the jury [would] be unable to segregate the evidence properly ”). Rather, as our sister circuit has reasoned, “prejudice should be minimized bythe fact that those transactions not directly involving [each defenda nt] were of the same character as the ones that did involve him and by the fact that the trial was relatively simple and short .” United States v. Levine , 569 F.2d 1175, 1177 (1st Cir. 1978). And a defendant USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 27 of 2828 Opinion of the Court 23

- 10412 is not prejudiced simply because he is less cul pable than his co

- conspirators. As a final matter, the district court instructed the jury that it could convict “only if ” it found that the co

- conspirators “agreed to try to accomplish a common and unlawful plan to commit wire fraud or mail fraud as char ged in the indictment,” and Defendants “knew the unlawful purpose of the plan and willfully joined in it.” To be sure, the district court did not give a multiple

- conspiracies instruction, ostensibly because Defendants did not request one. But the jury wa s not left with the impression that it could convict merely if each “spoke” involved “illegitimate” activity, even if the “spokes” did not know of or agree to a common scheme. Cf. Chandler , 388 F.3d at 813. That cuts against any finding of prejudice

. Be cause Defendants have not shown prejudice, they are not entitled to relief even if there was a material variance between indictment and trial. See Calderon , 127 F.3d at 1327. So we reject their variance arguments.
IV. CONCLUSION

For the reasons we’ve discus sed, we affirm Defendants’ conspiracy convictions.
AFFIRMED. USCA11 Case: 23-10412 Document: 73-1 Date Filed: 06/17/2024 Page: 28 of 28