[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 11999 Non

- Argument Calendar

________________________ D.C. Docket No. 0:13

- cr - 60109

- JIC

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee ,
versus FRANK EXCEL MARLEY, III, Defendant

- Appellant

.

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

________________________ ( June 9, 2015 ) Before TJOFLAT , WILSON, and ANDERSON , Circuit Judges. PER CURIAM:

Case: 14-11999 Date Filed: 06/09/2015 Page: 1 of 172 F rank Excel Marley , III, appeals his jury convictions and 57

- month total prison sentence for 1 count of conspiracy to commit mail and wire fraud , in violation of 18 U.S.C. §§ 1341, 1343, and 1349, and 6 counts of theft from an Indian tribe, in violation of 18 U.S.C. §§ 1163 and 2 . On appeal, he argues : (1) that the evidence was insufficient to prove that he acted knowingly and willfully; (2) that the district court’s exclusion , as hearsay, of a memorandum he had written denied him the right to present an effective defense and rendered his trial unfair; (3) that the district court’s loss calculation was erroneous; (4) that the evidence did not support an aggravat ed

- ro le enhancement under U.S.S.G. § 3B1.1(c); (5) that the evidence did not support an abuse

- of

- trust enhancement under § 3B1.3; and (6) that the court’s restitution order was erroneous. We address each issue in turn. (1) Sufficiency of the evidence Marley , an attorney who was retained by the Seminole Tribe of Florida (“ the Tribe”), argues that the government failed to prove that he knew the invoices from his law firm , The Marley Firm, P.A. (“the Marley Firm”) , contained fraudulent charges . He asserts that t he only evidence of his intent came from his codefendant, Maria Hassun, whose testimony was questionable in light of her plea agreement with the government. He also argue s that t he government failed to

Case: 14-11999 Date Filed: 06/09/2015 Page: 2 of 173 prove that he had not done sufficient work to justify the amount of money the Tribe paid him or that he intended to steal from the Tribe

. We review the denial of a defendant’s motion for judgment of acquittal de novo . United States v. Perez

- Tosta , 36 F.3d 1552, 1556 (11th Cir. 1994). The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime of which he is charged. In re Winship , 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). However, to uphold the denial of a motion for a judgment of acquittal,

we need only determine that a reason able fact

- finder could conclude that the evidence established the defendant’s guilt beyond a reasonable doubt. United States v. Hansen , 262 F.3d 1217, 1236 (11th Cir. 2001). Whether the evidence was direct or circumstantial, we will accept all reasonable inferences that tend to support the government’s case. See United States v. Williams , 390 F.3d 1319, 1324 (11th Cir. 2004). A jury is free to choose among reasonable constructions of the evidence. United States v. Vera , 701 F.2d 1349, 1357 (11th Cir. 1 983). As such, “it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” Id. (quotation and alteration omitted). We are bound by the

Case: 14-11999 Date Filed: 06/09/2015 Page: 3 of 174 jury’s credibility determinations and by its rejection of the inferences raised by the defendant. United States v. Peters , 403 F.3d 1263, 1268 (11th Cir. 2005). Th e fact that a witness has consistently lied in the past, engaged in various criminal activities, or thought his testimony would benefit him does not make his testimony incredible. United States v. Thompson , 422 F.3d 1285, 1291 (11th Cir. 2005). To be con sidered incredible as a matter of law, testimony “must be unbelievable on its face, i.e., testimony as to facts that the witness could not have possibly observed or events that could not have occurred under the laws of nature.” Id. (quotation and alterati on omitted). To commit mail fraud, in violation of 18 U.S.C. § 1341, or wire fraud in violation of 18 U.S.C. § 1343, the defendant must (1) intentionally participate in a scheme or artifice to defraud another of money or property, and (2) use or cause 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). To commit a conspiracy offense under 18 U.S.C. § 1349, a defendant must know of and willfully join in the unla wful scheme to defraud. United States v. Maxwell , 579 F.3d 1282, 1299 (11th Cir. 2009). Under 18 U.S.C. § 1163, a defendant commits embezzlement or theft from an Indian tribe when he “embezzles, steals, knowingly converts to his use or the use of anoth er, willfully misapplies, or willfully permits to be misapplied, any of

Case: 14-11999 Date Filed: 06/09/2015 Page: 4 of 175 the moneys, funds, credits, goods, assets, or other property belonging to any Indian tribal organization or intrusted to the custody or care of any officer, employee, or agent of an In dian tribal organization; or [] knowing any such moneys, funds, credits, goods, assets, or other property to have been so embezzled, stolen, converted, misapplied or permitted to be misapplied, receives, conceals, or retains the same with intent to convert it to his use or th e use of another.” 18 U.S.C. § 1163. As an initial matter, Marley contests only the government’s evidence of ( i) his knowledge of and intent to join a conspiracy to defraud the Tribe by inflating the Marley Firm’s bills, and ( ii ) his knowledge of the theft and his intent to steal from the Tribe. See Maxwell , 579 F.3d at 1299; 18 U.S.C. § 1163. At Marley’s trial, Hassun , who was Marley’s assistant, testified that Marley directed her to inflate the invoices she submitted to the Tribe; told her to “be creative” in doing so; asked her, on some occasions, to increase the invoices by a specific percentage; and, on other occasions, told her he needed a ce rtain amount of money for the coming month. She testified that she never made the decision as to what to bill or what not to bill and that she submitted the invoices to Marley for his approval before sending them out. She further testified that Marley as ked her to pick up the checks issued by the Tribe so she could promptly deposit them into the Marley Firm’s bank account, which was often overdrawn, and that, sometimes, she

Case: 14-11999 Date Filed: 06/09/2015 Page: 5 of 176 transferred funds from the Marley Firm’s bank account to Marley’s personal bank

ac count to cover overdrafts in the latter account. In addition, an accountant for the Federal Bureau of Investigation (“FBI”) testified that the Tribe’s checks were deposited into the Marley Firm’s accounts and that the Tribe was the source of over 90% of t he funds in those accounts

. This evidence was sufficient to establish that Marley knowingly and willfully joined the conspiracy and stole from the Tribe. Marley’s contention that Hassun’s plea agreement rendered her testimony incredible is unavailing, because we are bound by the jury’s credibility determinations, unless testimony is unbelievable on its face. Peters , 403 F.3d at 1268; Thompson , 422 F.3d at 1291. Marley does not argue that Hassun’s testimony was facially unbelievable, nor does the recor d support such an argument. Marley’s contention that the government failed to prove that the fraudulent charges were not supported by his other, unbilled work is also unavailing. Defense counsel presented that argument to the jury by eliciting from the F BI’s case agent during cross - examination that he had not investigated the entirety of Marley’s work and whether all of that work had been included in the Marley Firm’s invoices

. In addition, in his closing argument, defense counsel maintained that a

reaso nable doubt existed as to whether Marley had performed sufficient work to justify the inflated bills, and he encouraged the jury to conclude that Marley

Case: 14-11999 Date Filed: 06/09/2015 Page: 6 of 177 believed the money he received from the Tribe represented appropriate compensation for his work. The j ury declined to make that inference , and we are bound by the jury’s rejection of inferences raised by the defense. See Peters , 403 F.3d at 1268. (2) Hearsay ruling Marley contends that the district court erred by excluding as hearsay a memorandum he wrote to the Tribe’s general counsel , after a division of the Tribe had fired him , in which he listed the matters he handled during his eight

- year relationship with the Tribe (“the closing memo”) . He maintains that he did not offer the closing memo for th e truth of its contents . Instead, he says, he offered it to show that the government had not investigate d the entirety of his work for the Tribe and to give the jury information about his state of mind with respect to the payments he received. Additional ly, c iting United States v. Hurn , 368 F.3d 1359, 1363 (11t h Cir. 2004), he maintains that, notwithstanding the Federal Rules of Evidence, the Constitution prohibits a court from excluding defense evidence that directly pertains to the elements of the charg ed offense or that tends to place the story presented by the prosecution in a significantly different light, such that a reasonable jury might receive it differently. 1 He maintains that he offered the closing memo for both of the se purposes.

1 Hurn addressed a district court’s decision to exclude evidence presented by the Case: 14-11999 Date Filed: 06/09/2015 Page: 7 of 178 We review co nstitutional issues de novo

. United States v. Brown , 364 F.3d 1266, 1268 (11th Cir. 2004). We review evidentiary rulings for abuse of discretion. United States v. Wilk , 572 F.3d 1229, 1234 (11th Cir. 2009). An abuse of discretion occurs if the district court applies an incorrect legal standard or makes findings of fact that are clearly erroneous. Id. The Federal Rules of Evidence generally exclude hearsay from admissible evidence. Fed.R.Evid. 802. Hearsay is an out

- of

- court statement “a party offers in evidence to prove the truth of the matter asserted in the statement .” Fed.R.Evid. 801(c)(2). When the declarant intends to make an assertion that something is true, the hearsay rule applies whethe r the assertion is explicit or implicit. See United States v. Groce , 682 F.2d 1359, 1364 (11th Cir. 1982). In addition, e vidence of the defendant’s good conduct is not admissible to negate his criminal intent. United States v. Ellisor , 522 F.3d 1255, 12 70

- 71 (11th Cir. 2008). Here, the district court neither applied an incorrect legal standard n or ma d e findings of fact that we re clearly erroneous. See Wilk , 572 F.3d at 1234. In ruling on Marley’s arguments, the court correctly noted that hearsay is ad missible where it is not offered for the truth of the matter asserted. However, it found that “the memo was . . . clearly offered for the truth asserted therein,” and that by introducing the memo during his cross

- examination of the FBI case agent , defense

defendant, in the defense case. Hurn , 368 F.3d at 1362

- 63.

Case: 14-11999 Date Filed: 06/09/2015 Page: 8 of 179 counsel was attempting to expos e the jury to Marley’s own self

- serving statement without subjecting him to cross

- examination , which was “not permitted by the Federal Rules of Evidence .” The court’s factual findings were not clearly erroneous. Defense counsel’s

cross - examination of the FBI case agent focused on whether the case agent had investigated the full extent of Marley’s legitimate work for the Tribe, which was precisely the topic of the closi ng memo. In addition, the memo, in which Mar ley attempted to justify his firm’s fraudulent invoices by asserting that he had performed 40 hours of unbilled work monthly during his eight

- year tenure, was not admissible to negate his intent to commit the cr imes charged in the indictment. See Groce , 682 F.2d at 1364; Ellisor , 522 F.3d at 1270

- 71. While Marley asserts that he offered the memo to show his state of mind at the time he wrote it, that, too, was an impermissible hearsay use that depended on the t ruth of the memo’s
contents. Marley’s contention that, by excluding the closing memo as hearsay, the district court denied him the opportunity to rebut the government’s evidence of his intent to defraud and steal from the Tribe, and to present the governm ent’s evidence in a different light, is misguided. See Hurn , 368 F.3d at 1363. While the court ruled that defense counsel could not introduce the memo for th e purpose of

cross - examining the FBI case agent , it did not categorically exclude the closing

Case: 14-11999 Date Filed: 06/09/2015 Page: 9 of 1710 mem o from evidence. Rather, it indicated that, if the defense wished to offer the memo, Marley would have to take the stand to lay a foundation for its contents ; Marley declined to do so. Moreover, Marley, who waived his rights to testify and to present e vidence in his defense, had ample opportunity to contest the government’s evidence of his intent and the adequacy of its investigation. De fense counsel extensively

cross - examined the FBI case agent about Marley’s work for the Tribe, and the case agent repeatedly testified that his investigation did not determine whether Marley may have performed work that was not reflected in the Marley Firm’s invoices. And, as noted above, i n his closing argument, defense counsel argued to the jury that the governmen t’s failure to investigate the extent of Marley’s uncompensated work created a reasonable doubt as to hi s guilt. Accordingly, the district court did
not err in excluding the closing memo

. (3) Loss amount Marley contends that the district court incorrectly calculated his loss amount by considering the face value of the checks the Tribe issued in payment for the Marley F irm’s invoices, rather than only the fraudulent portion of each check

. Additionally, he maintains that the court erroneously failed to subtract the amounts of the unpaid January, February, and March 2011 invoices; $148,658 he alleges

Case: 14-11999 Date Filed: 06/09/2015 Page: 10 of 1711 Hassun stole from the Marley Firm in an independent fraud scheme ; and $1,800,000 worth of his unbilled work for the Tribe

. With respect to Sentencing Guidelines issues, we review purely legal questions de novo , the district court’s factual findings for clear error, and, in most cases, the district court’s application of the Guidelines to the facts with due deference, which is tantamount to clear error review. United States v. Rothenberg , 610 F.3d 621, 624 (11th Cir. 2010). We review the district court’s loss calculation for clear error. United States v. Cabrera , 172 F.3d 1287, 1292 (11th Cir. 1999). To be clearly erroneous, a finding must leave us with a “definite and firm conviction that a mistake has been committed.” Rothenberg , 610 F.3d at 624 (quotation omitted). A factual finding cannot be clearly erroneous when the factfinder is choosing between two permissible views of the evidence. United States v. Saingerard , 621 F.3d 1341, 1343 (11th Cir. 2010). Under U.S.S.G. § 2B1.1, if the loss amount is more than $400,000, but less than $1,000,000, a 14

- point offense

- level increase applies. U.S.S.G. § 2B1.1(b)(1)(H), (I). The commentary to § 2B1.1 provides that the loss shall be reduced by: The money returned, and the fair market value of the property returned and the services rendered, by the defendant or other persons acting jointly with the defendant, to the victim bef ore the offense was detected. The time of detection of the offense is the earlier of (I) the time the offense was discovered by a victim or government agency; or Case: 14-11999 Date Filed: 06/09/2015 Page: 11 of 1712 (II) the time the defendant knew or reasonably should have known that the offense was detecte d by a victim or government agency. Id. § 2B1.1, comment. (n.3(E)(i)). Contrary to Marley’s assertion , t he district court’s $996,605 loss calculation included only the fraudulent charges in the Marley Firm’s bills. The court correctly denied Marley’s req uest to subtract the amounts of the unpaid January, February, and March 2011 invoices , because the evidence showed that the Tribe discovered the fraud before it received the benefit of any legitimate services charged in those invoices. See U.S.S.G. § 2B1.1, comment. (n.3(E)(i))

. Specifically, a t trial, an advisor to the Tribe’s chairman testified that, when she began working on the budget for the year 2010, she discovered information that later led the Tribe to detect the fraud. Additionally, t he Tri be’s director of finance testified that the Tribe did not pay the Marley Firm ’s January, February, and March 2011 invoices because it had discovered the fraudulent charges in the firm’s earlier invoices. Moreover , at sentencing, defense counsel acknowledg ed that, while the Tribe did not officially fire Marley until March 2011, “there was suspicion [of the offenses] appr oximately six months earlier.” T he court also correctly denied M arley’s request to subtract the $148,658 Hassun allegedly stole from the Marley Firm. Any theft by Hassun from the Marley Firm was not relevant to the offenses for which Marley was convicted, of which the Tribe was the victim. Additionally, Hassun testified that the $148,658

Case: 14-11999 Date Filed: 06/09/2015 Page: 12 of 1713 she deposited into her bank account represented her salary, and , at sentencing, the
court noted that it credited Hassun over Marley

. T he court did not err in denying Marley’s request to deduct the value of his alleged unbilled work , in that the evidence did not show that any such deduction was appropriate

. Al though Marley testified a nd pointed to his closing memo to support his contention that he had done $1,800,000 worth of unbilled work throughout his tenure with the Tribe, the court noted that it had “serious questions as to [] Marley’s credibility

. ” And, while two members of the Tribe testified that Marley had given them and other tribal members legal advice without billing them, Marley did not provide evidence, other than his own testimony, that the Tribe had agreed to pay him for the work he repe atedly failed to include in his bills

. According, the district court’s $996,605 loss calculation was not clearly erroneous. (4) Aggravated

- role enhancement Marley argues that he did not qualify for an aggravated

- role enhancement under U.S.S.G. § 3B1.1(c) because, although he was the sole attorney at the Marley Firm, Hassun was responsible for preparing and submitting the invoices. He also maintains that, at a minimum, he and Hassun had a “co

- equal relationship” with regard to the offenses, in that Marley called Hassun “Momma,” Hassun had access to his computer, and she admitted that she altered the entries in hi s desk calendar to a rrive at the inflated charges.

Case: 14-11999 Date Filed: 06/09/2015 Page: 13 of 1714 Under U.S.S.G. § 3B1.1(c), a two

- point enhancement applies if the def endant was an organizer, leader, manager, or supervisor in any criminal activity that involved five or fewer participants and was not “otherwise extensive.” See U.S.S.G. § 3B1.1(c). To qualify for the enhancement, the defendant must have been the organiz er, leader, manager, or supervisor of one or more other participants. Id. § 3B1.1, comment. (n.2). Here, the district court found that Marley was an organizer, leader, manager, or supervisor of the offenses. This finding was supported by Hassun ’s testimony that she acted at Marley’s direction in inflating and fabricating charges on the Marley Firm’s invoices, that she never made the decision as to what to bill or what not to bill , and that she submitted the invoices to Marley for approval before

s ending them out

. Accordingly, the court did not err in applying the § 3B1.1(c) enhancement

. (5) Abuse

- of

- trust enhancement Marley argues that the evidence did not show that he used his position as an attorney to significantly facilitate his commission or concealment of the offenses. He asserts that t he Marley Firm submitted its invoices to the Tribe’s general counsel, who was capable of determining whether or not to authorize payment for them, and that the general counsel did not authorize payment base d on any abuse of trust by him.

Case: 14-11999 Date Filed: 06/09/2015 Page: 14 of 1715 Under U.S.S.G. § 3B1.3 a two

- point enhancement applies “[i]f the defendant abused a position of public or private trust . . . in a manner that significantly facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. The commentary to § 3B1.3 instructs: “Public or private trust” refers to a position of public or private trust characterized by professional or managerial discretion ( i.e. , substantial discretionary judgment that is ordinarily given cons iderable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non

- discretionary in nature

. Id. , comment. (n.1). In addition, we have held that, for the enhancement to apply, the facts must demonstrate that (1) the defendant held a place of private or public trust, (2) he abused that position in a way that significantly facilitated the commission or concealment of the offenses, and (3) the victim conferred the trust. United States v. Walker , 490 F.3d 1282, 1300 (11th Cir. 2007). Here, the district court concluded that the abuse

- of

- trust enhancement applied because the Tribe allowed Marley to exercise a significant amount of discretion with regard to his work and billing practices

. See Walker , 490 F.3d
at 1300; U.S.S.G. § 3B1.3, comment. (n.1). The court’s conclusion was supported by the trial evidence. At trial, t he Tribe’s general counsel, who was blind and could not read without t he help of his assistant, testified that he did not review the details of the Marley Firm’s bills, or the bills of the third

- party firms Marley hired, because he trusted that, as an attorney, Marley would be honest with him and bill

Case: 14-11999 Date Filed: 06/09/2015 Page: 15 of 1716 him correctly. The tri al evidence also showed that Marley used this discretion to commit and conceal his offenses by having the third

- party firms submit their bills to him and inflat ing th e charges in his firm’s bills to the Tribe. See U.S.S.G. § 3B1.3; Walker , 490 F.3d at 130 0. Accordingly, the district court did not err in apply ing the § 3B1.3 enhancement. (6) Restitution order Marley contends that the district court erred by failing to deduct the value of his uncompensated work, including his unbilled work and the work bil led in his January, February, and March 2011 invoices. H e maintains that not doing so resulted in a windfall for the Tribe. He also maintain s that the court erred by failing to deduct t he $148,658 Hassun allegedly stole from the Marley Firm. We review the legality of a restitution order de novo and the underlying factual findings for clear error. United States v. Baldwin , 774 F.3d 711, 728 (11th Cir. 2014). Under 18 U.S.C. § 3663A(c), a defendant convicted of fraud must pay restitution to the victim of his offenses. United States v. Moran , 778 F.3d 942, 985 (11th Cir. 2015) . The government has the burden of proving the loss amount by a preponderance of the evidence. Id. Because restitution is intended to put the victim in the same position it woul d have been in had the crime never been committed, any value of the services or items received by the victim must be offset against the restitution order. Id

.

Case: 14-11999 Date Filed: 06/09/2015 Page: 16 of 1717 The district court’s $ 996,605 restitution order was not erroneous. As discussed earlier, the t rial evidence supported the court’s $996,605 loss calculation, and the court did not err by failing to deduct the value of Marley’s alleged , but
unproven, unbilled work. Marley’s contention that the court erred by failing to deduct the amounts of his Janu ary, February, and March 2011 invoices lacks merit. While, at sentencing, he contended that the Tribe owed him approximately $160,000 from those invoices , he offered no probative evidence to show that the invoices reflected $160,000 worth of legitimate work. Hi s contention that the court erred by failing to deduct the $148,658 Hassun allegedly stole from the Marley Firm also lacks merit. As noted earlier, the alleged theft was not relevant to the loss amount in t his case. In any event, Hassun was ordered to pay restitution in the amount of $148,658, and the district court ordered Marley to pay restitution jointly and severally with her

. Accordingly, f or the reasons discussed above, Marley’s convictions and
sentences are AFFIRMED

.

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