[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-15761

________________________

D.C. Docket No. 3:17-cr-00043-RV-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

JOSHUA DAVID SAMS, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(April 18, 2019)

Before ROSENBAUM, BRANCH and HIGGINBOTHAM,

* Circuit Judges.

PER CURIAM:

 * Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, 

sitting by designation.

Case: 17-15761 Date Filed: 04/18/2019 Page: 1 of 10 
2

Joshua David Sams appeals from his seven fraud-related convictions. He 

argues that the government’s evidence of his guilt was insufficient. After careful 

consideration, we affirm.

I.

The district court recounted that the jury could have found the following facts 

based on the evidence presented at Sams’s trial:

In 2011, Christopher Asmar came up with the idea for a 

social media cell phone “app” known as HippySocial. 

While looking for a software engineering firm capable of 

developing the app for him, Asmar was introduced to the 

defendant. The defendant, who had experience with 

computers (but was not employed as a software engineer 

or developer), represented that he could help Asmar find a 

qualified engineering firm to develop the app, and he 

offered his services as a paid “consultant.” The defendant 

then contacted his friend, an entrepreneur and hot air 

balloon pilot named Henry Steiger, and had him pose as a 

software developer named Robert Woods, president of 

Woods Security Group (WSG). “Robert Woods” told 

Asmar that his company had an office in California staffed 

with 50 software engineers capable of developing the app. 

These and numerous other lies induced Asmar to enter into 

contracts and ultimately pay the defendant and WSG about 

$300,000 to develop the app. Asmar testified during trial 

that if he had known the truth, he never would have signed 

the contracts.

In a footnote, the court noted that Sams had “conceded that Steiger, who has a 

medical background, ‘knows about as much about the actual technology [of software 

Case: 17-15761 Date Filed: 04/18/2019 Page: 2 of 10 
3

development] as I know about medicine.’” The court continued its recitation of the 

evidence at trial:

This case is a little unusual in that despite all of the lies 

and misrepresentations, it appears that the defendant 

wanted and expected the app to succeed; and with help 

from some (mostly Russian) contract engineers that he 

hired, he eventually completed it and delivered it to Asmar 

pursuant to the contract.

The evidence at trial revealed that, while Asmar paid Sams about $332,000, Sams

paid the contract engineers about $78,000 to produce the app. The district court 

continued its recitation:

Although Asmar was never given access to the full code—

and it would not always work properly as it would 

sometimes turn off and on—he was very pleased with the 

app overall. Nevertheless, for a variety of different 

reasons, HippySocial did not turn out to be “the next 

Facebook” success that the parties had anticipated.

In an attempt to get additional payments out of Asmar, the 

defendant then had another friend, Michael Karl Turner, 

pose as a man named Brett Prince and claim that he 

represented LVMH Acquisitions Inc., a (fictitious) 

company that wanted to buy the completed HippySocial 

app for $6 million. To further the scheme, “Brett Prince” 

gave Asmar an investment account statement reflecting 

that LVMH’s account had a balance of $14 million, which 

was a total fabrication.

For Sams’s conduct related to Asmar’s payments for developing the app, a 

grand jury charged Sams with one count of conspiracy to commit wire fraud, 18 

U.S.C. §§ 1343, 1349 (Count I), three counts of wire fraud, in violation of 18 U.S.C. 

§ 1343 (Counts II-IV) and one count of money laundering, in violation of 18 U.S.C. 

Case: 17-15761 Date Filed: 04/18/2019 Page: 3 of 10 
4

§ 1957 (Count V). For the conduct related to the purported offer to purchase the 

app, the grand jury charged Sams with another count of conspiracy to commit wire 

fraud (Count VI) and one count of wire fraud (Count VII). The same indictment 

charged codefendants Steiger and Turner with counts of wire fraud and conspiracy

to commit wire fraud. Both codefendants pled guilty and testified at Sams’s trial.

II.

On appeal, Sams argues that the government’s proof of all of the charged 

crimes was insufficient. Specifically, as to the wire-fraud counts related to the 

development of the app, charged in Counts II, III, and IV of the indictment, Sams 

asserts that the government’s proof that he participated in a scheme to defraud was 

insufficient because Asmar “received what he bargained for.” And in the absence 

of the substantive wire-fraud counts, he says, the government’s proof of Counts I 

and V, which charged conspiracy and money laundering related to Counts II through 

IV, was also insufficient. As to the wire-fraud count charged in Count VII of the 

indictment, Sams says that the conduct at issue was a lawful attempt to collect a 

legitimate debt Asmar owed him related to the development of the app. In the 

absence of that wire-fraud count, Sams further contends, the evidence of the 

conspiracy charged in Count VI was also insufficient. 

A defendant is guilty of wire fraud if the evidence proves that the defendant 

(1) intentionally participated in a scheme or artifice to defraud another of money or 

Case: 17-15761 Date Filed: 04/18/2019 Page: 4 of 10 
5

property, and (2) the defendant used interstate wires, or caused them to be used, for 

the purposes of executing the scheme. 18 U.S.C. § 1343; United States v. Bradley, 

644 F.3d 1213, 1238 (11th Cir. 2011). Here, only the first element is at issue.

The words “to defraud” commonly refer “to wronging one in his property 

rights by dishonest methods or schemes” and “usually signify the deprivation of 

something of value by trick, deceit, chicane or overreaching.” McNally v. United 

States, 483 U.S. 350, 358 (1987); Hammerschmidt v. United States, 265 U.S. 182, 

188 (1924); United States v. Svete, 556 F.3d 1157, 1161-62 (11th Cir. 2009) (en 

banc). To prove the “scheme or artifice to defraud” element of wire fraud thus

“requires proof of a material misrepresentation, or the omission or concealment of a 

material fact calculated to deceive another out of money or property.” Bradley, 644 

F.3d at 1238; United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009).

We revisited the definition of “scheme to defraud” in United States v. 

Takhalov, 827 F.3d 1307 (11th Cir. 2016). The defendants in that case did not 

dispute that they lured customers into their bar using women whom they secretly 

compensated to pose as patrons of their establishment. Takhalov, 827 F.3d at 1310-

11. But the government also presented evidence that the defendants’ employees 

engaged in other fraud to increase the victims’ tabs, which the defendants claimed 

to have known nothing about. Id. The defendants therefore proposed that the court 

instruct the jury that, if they believed the defendants knew nothing other than that 

Case: 17-15761 Date Filed: 04/18/2019 Page: 5 of 10 
6

they were paying the women to lure in customers, and found that the customers 

requested the drinks and received them at the stated prices, then the jury must acquit. 

Id. The trial judge did not give the requested instruction, and the jury convicted the 

defendants. Id. at 1311.

We reversed. Id. at 1316. Recounting our prior precedent, we noted that “if 

a defendant does not intend to harm the victim—‘to obtain, by deceptive means, 

something to which [the defendant] is not entitled’—then he has not intended to 

defraud the victim.” Id. at 1313 (quoting Bradley, 644 F.3d at 1240). Thus, we 

extrapolated, if the jury concluded that the defendants “gave the victims exactly what 

they asked for and charged them exactly what they agreed to pay,” then there had 

not been a scheme to defraud. Id. at 1310, 1314. To illustrate the point, we gave the 

following hypothetical:

[A] young woman asks a rich businessman to buy her a 

drink at Bob’s Bar. The businessman buys the drink, and 

afterwards the young woman decides to leave. Did the 

man get what he bargained for? Yes. He received his 

drink, and he had the opportunity to buy a young woman 

a drink. Does it change things if the woman is Bob’s sister 

and he paid her to recruit customers? No; regardless of 

Bob’s relationship with the woman, the businessman got 

exactly what he bargained for. If, on the other hand, Bob 

promised to pour the man a glass of Pappy Van Winkle 

[an expensive bourbon] but gave him a slug of Old Crow 

[a cheap bourbon] instead, well, that would be fraud. 

Why? Because the misrepresentation goes to the value of 

the bargain.

Id. at 1313.

Case: 17-15761 Date Filed: 04/18/2019 Page: 6 of 10 
7

Our decision in Takhalov—which concluded that no scheme to defraud 

occurred where a defendant provided purported victims with “exactly what they 

asked for and charged them exactly what they agreed to pay”—expresses the same 

rule we have applied in our prior precedent. In Maxwell, for example, the defendant 

was the executive in charge of an office of a large contracting company. 579 F.3d 

at 1288. The defendant won several contracts to do electrical work for the 

government by representing that small or disadvantaged businesses, or both, were 

performing a “commercially useful function in the completion of the contract[s]” 

when, in fact, those businesses were merely passing payments along to the 

defendant’s company, which was performing all of the work. Id. at 1288-89. The 

defendant’s company ultimately performed on the contracts, but we held that its 

deception nevertheless constituted a “scheme to defraud” because the defendant 

“dishonestly circumvent[ed] the worthy purpose” of the government’s requirements. 

Id. at 1303.

Our decisions in Takhalov and Maxwell are also consistent with other circuits’ 

interpretations of “scheme to defraud.” In United States v. Treadwell, 593 F.3d 990 

(9th Cir. 2010), for example, the Ninth Circuit likewise concluded that the intent to 

harm that a scheme to defraud requires is satisfied when a defendant deceives victims 

into paying for items or opportunities of one type while actually providing another 

type, which differs in some way important to the victims, from what was promised:

Case: 17-15761 Date Filed: 04/18/2019 Page: 7 of 10 
8

The intent to induce one’s victim to give up his or her 

property on the basis of an intentional misrepresentation 

causes “harm” by depriving the victim of the opportunity 

to weigh the true benefits and risks of the transaction, 

regardless of whether or not the victim will suffer the 

permanent loss of money or property.

Treadwell, 593 F.3d at 997-98. As we noted in Maxwell, “financial loss is not at the 

core” of mail and wire fraud, and such a scheme can exist “[r]egardless of the quality 

or cost of the work completed” by the schemer. Maxwell, 579 F.3d at 1302.

In reviewing whether the government’s evidence was sufficient to prove that 

Sams’s conduct constituted a scheme to defraud, we view the evidence in the light 

most favorable to the government and draw all reasonable inferences and credibility 

choices in favor of the factfinder’s verdict. United States v. Suarez, 893 F.3d 1330, 

1333-34 (11th Cir. 2018).1

Applying those principles to this case, Sams’s conduct constituted a scheme 

to defraud. First, contrary to Sams’s argument that the evidence of Counts I through 

V of the indictment wasinsufficient, Sams did not provide Asmar with “exactly what 

he paid for.” 

Sams represented to Asmar that his friend Steiger was “Robert Woods,” 

president of Woods Security Group, which had 50 software engineers ready to 

 1 We reject Sams’s suggestion, raised for the first time in his reply brief, that we should not 

view the evidence in the light most favorable to government. Merits of his contention aside, “we 

decline to consider issues raised for the first time in an appellant’s reply brief.” United States v. 

Britt, 437 F.3d 1103, 1104 (11th Cir. 2006).

Case: 17-15761 Date Filed: 04/18/2019 Page: 8 of 10 
9

develop his app idea. Using the analogy in Takhalov, Sams offered Asmar Pappy 

Van Winkle. Naturally, Asmar testified that he would not have signed the contract 

had he known that “Robert Woods” was actually a hot-air balloon pilot, not the 

president of a company with a team of software engineers. Sams ultimately 

delivered something fairly described as a completed “app,” but neither the fictional 

Woods nor the fictional expert company had been involved. 

Rather, Sams pocketed Asmar’s money and hired relatively inexpensive 

contract programmers. Instead of serving Asmar the promised Pappy Van Winkle, 

Sams poured Old Crow. And it showed in the programming. The government 

presented evidence that the app shut off from time to time and experienced other 

“bugs.” Sams deprived Asmar of the opportunity to weigh the true risks and benefits 

of the transaction and thereby accomplished a scheme to defraud. See Treadwell, 

593 F.3d at 997-98. As we have previously held, this is true regardless of whether 

Asmar experienced a financial loss, and regardless of the quality or cost of the work 

performed by Sams’s contract engineers. Maxwell, 579 F.3d at 1302.

The government’s evidence of the wire fraud charged in Counts II, III, and IV

was therefore sufficient to prove Sams’s guilt. And, since Sams makes no other 

argument about the sufficiency of the related conspiracy and money-laundering 

counts, the evidence of Counts I and V was also sufficient.

Case: 17-15761 Date Filed: 04/18/2019 Page: 9 of 10 
10

Having concluded that the government’s evidence of Counts I through V was 

sufficient, we also reject Sams’s arguments concerning the sufficiency of the 

government’s evidence of Counts VI and VII. Those arguments are premised on 

Sams’s assertions that Asmar owed Sams a legitimate debt for his role in developing 

the app and that proof of a scheme to defraud had to include Sams’s attempt to 

receive “something to which he was not entitled.” But Asmar’s purported debt to 

Sams was the result of Sams’s scheme to defraud, and not something to which he 

was entitled. The government’s evidence of Counts VI and VII was therefore 

sufficient.

III.

In sum, the judgment of the district court is AFFIRMED.

Case: 17-15761 Date Filed: 04/18/2019 Page: 10 of 10