FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 OCTOBER 18, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-12994

________________________

D. C. Docket No. 07-00322-CR-T-N

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN W. GOFF,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(October 18, 2010)

Before TJOFLAT, CARNES and REAVLEY, Circuit Judges.

*

PER CURIAM:

Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting *

by designation.
After a ten-day jury trial, Appellant John W. Goff was convicted on one

count of embezzlement of insurance company funds in violation of 18 U.S.C. §

1033(b)(1)(A); twenty three counts of mail fraud in violation of 18 U.S.C. § 1341;

and one count of making a false statement to an insurance regulatory agency in

violation of 18 U.S.C. § 1033(a). He now appeals his conviction based on five

points of error. For the following reasons, we AFFIRM.

I.

In his first point of error, Goff argues that the evidence presented at trial was

insufficient to support his conviction on the counts of mail fraud. Specifically, he

contends that the government failed to prove that he intended to defraud XLS when

he withheld audit premiums. According to Goff, he lacked the intent to defraud

because (1) the PMA arguably allowed him to withhold the payments as offsets

against money he believed XLS owed him; (2) XLS knew he was withholding the

payments and did nothing; and (3) because no insured was injured by his actions.

He further argues that the mailings that formed the basis of the mail fraud counts

were contractually required under the PMA and mandated by state law, so they

cannot form the basis for mail fraud. The Government counters that the record

contains ample evidence of his intent to defraud and that his other arguments are

either contrary to law or without any legal authority.

2
We review de novo the question of whether the record contains sufficient

evidence to support the verdict, "view[ing] the evidence in the light most favorable

to the government and resolv[ing] all reasonable inferences and credibility

evaluations in favor of the jury's verdict." United States v. Tinoco, 304 F.3d 1088,

1122 (11th Cir. 2002) (internal quotation omitted). "[O]ur sufficiency review

requires only that a guilty verdict be reasonable, not inevitable, based on the

evidence presented at trial." United States v. Browne, 505 F.3d 1229, 1253 (11th

Cir.2007) (internal quotation marks and citation omitted). "[T]he question is

whether reasonable minds could have found guilt beyond a reasonable doubt, not

whether reasonable minds must have found guilt beyond a reasonable doubt."

United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008) (emphasis in

original).

There is sufficient evidence in the record from which reasonable minds

could have found intent to defraud beyond a reasonable doubt on the mail fraud

counts. The jury heard evidence that Goff spent the money he held in trust on his

lavish salary and style of living. The Goff Group was in grave financial

difficulties, so Goff directed his CFO to start withholding premiums. Moreover,

Goff had withheld payments to other companies, Fireman's Fund and Reliance, for

which those companies terminated their agreements with him. And, the jury could

3
have found that Goff intended to conceal the breadth of his fraud, because when

queried by XLS about when he would remit the audit payments, Goff avoided the

question. Any of this evidence alone could lead a reasonable jury to find intent to

defraud.

Goff argues that he was merely acting under his good faith belief that under

the PMA he could offset the money he believed that XLS owed him. "'Good faith'

is a complete defense to a charge that requires intent to defraud." Eleventh Cir.

Pat. Jury Instr. 17. The district court properly instructed the jury on the good faith

defense. Based on the evidence listed above, a reasonable jury could have found

that the evidence did not support Goff's contention that he believed he was allowed

to withhold the audit premiums.

Goff also contends that because XLS knew he was withholding premiums,

he could not have defrauded them. Alternatively, he argues that there was no

fraud, because no policyholder's claim went unpaid thus no person was injured.

These arguments are unavailing. The law is clear that a scheme to defraud need

not be successful, or even executed to be punishable. United States v. Ross, 131

F.3d 970, 986 (11th Cir. 1997); see also Pelletier v. Zweifel, 921 F.2d 1465, 1498

(11th Cir. 1991) ("[T]he government can convict a person for mail or wire fraud

even if his targeted victim never encountered the deception—or, if he encountered

4
it, was not deceived.").

Goff further argues that because workers' compensation coverage is

mandated by state law, under Parr v. United States the mailing of the invoices and

premium checks cannot form the basis for mail fraud. 363 U.S. 370, 391, 80 S.

1

Ct. 1171, 1183–84 (1960) ("[W]e think it cannot be said that mailings made or

caused to be made under the imperative command of duty imposed by state law are

criminal."). But, in Parr the school district was mandated by state law to mail tax

bills to its specific taxpayers. Id. Here, state law mandated workers' compensation

coverage for all employers, but not that they choose the Goff Group as the

provider. And, several employers testified that had they known Goff was not

remitting their payments to XLS, they would not have mailed the payments to him.

See also Schmuck v. United States, 489 U.S. 705, 713 n.7, 109 S. Ct. 1443, 1449

n.7 (1989) (internal citation omitted) ("Whereas the mailings of the tax documents

in Parr were the direct product of the school district's state constitutional duty to

levy taxes . . . and would have been made regardless of the defendants' fraudulent

scheme, the mailings in the present case . . . were derivative of Schmuck's scheme .

. . and would not have occurred but for that scheme."). Thus, Goff's mandated

 Goff presents his mandated mailing argument as part of his sufficiency argument. It is 1

better categorized as a legal argument. But, since it lacks merit from both a legal and sufficiency

standpoint, we address it here.

5
mailing argument fails. Accordingly, we find that reasonable minds could have

found sufficient evidence to find Goff guilty on the mail fraud counts beyond a

reasonable doubt.

II.

In his second point of error, Goff challenges the sufficiency of the evidence

to support his conviction for embezzlement. Section 1033(b)(1) punishes

"[w]hoever acting as . . . agent . . . of any person engaged in the business of

insurance . . . willfully embezzles, abstracts, purloins, or misappropriates any of the

moneys, funds, premiums, credits, or other property of such person so engaged."

18 U.S.C. § 1033(b)(1). He again presses his good faith argument as a counter to

a finding of wilfulness. For the reasons we listed above regarding his first point of

error, we find sufficient evidence to support his conviction for embezzlement.

Additionally, Goff argues that because the embezzlement count was

predicated on what he characterizes as a contract dispute, it cannot be punishable

under criminal law. He tries to make his rejected defense into a novel legal bar to

the prosecution. Goff offers no authority for this argument, nor can he. There was

sufficient evidence to support Goff's conviction for embezzlement.

III.

In his third point of error, Goff argues that the indictment against him should

6
have been dismissed because the indictment was improperly sealed and therefore

did not toll the statute of limitations and that he was actually prejudiced.

Additionally, Goff contends that the district erred when it denied his motion to

dismiss the indictment without a hearing.

"This Court reviews a district court's denial of a motion to dismiss the

indictment for abuse of discretion." United States v. Palomino Garcia, 606 F.3d

1317, 1322 (11th Cir. 2010). "However, we review de novo the district court's

interpretation and application of the statute of limitations." Id. (quotation marks

and quotation omitted). The timely filing of an indictment tolls the statute of

limitations, and a properly sealed indictment "is timely even though the defendant

is not arrested and the indictment is not made public until after the end of the

statutory limitations period." United States v. Edwards, 777 F.2d 644, 647 (11th

Cir. 1985). "Courts have dismissed indictments maintained under seal beyond the

limitation period only upon a showing of substantial, irreparable, actual prejudice

to the defendants." Id. at 649. Because Goff was not actually prejudiced, we need

not examine whether the sealing of the indictment was proper.

Goff argues that he was prejudiced because the delay kept him from securing

the testimony of Bill Bergey who died two weeks after the unsealing of the

superceding indictment. Goff argues that had Bergey been able to testify, he

7
would have rebutted testimony about the Reliance litigation, thereby disproving the

government's pattern and practice argument. He states no specific way in which

Bergey would rebut the argument. Nor does he proffer any evidence of how

Bergey died and what difference it would have made so that he could have

preserved Bergey’s testimony had he known of this indictment. Furthermore,

whatever Bergey might have testified about Reliance, there was ample other

evidence for the jury to find Goff guilty. Goff was not actually prejudiced by

failing to secure Bergey's testimony before Bergey's death.

Goff also argues that he was prejudiced because he allowed documents to be

destroyed in November of 2007, believing that the statute of limitations had run in

October of 2007. Goff has not shown that any prejudice he allegedly suffered was

actual, substantial, and irreparable. The Magistrate Judge found that Goff's

documents had been produced in several of the previous civil actions surrounding

the transactions at issue. Goff has failed to identify any specific documents that he

could not replicate from earlier productions. At a minimum, any prejudice would

have been reparable, and the district court did not abuse its discretion by not

holding a hearing on the matter. Therefore, Goff has not demonstrated that the

district court erred in denying his motion to dismiss the indictment based on the

statute of limitations.

8
IV.

In his fourth point of error, Goff argues that the application he submitted to

the Alabama Department of Insurance is not a "financial document" for the

purposes of 18 U.S.C. § 1033(a). The statute does not define either term, so we

look to the plain meaning of the words and find that the application for renewal is a

financial document. It is "[s]omething tangible on which words . . . are recorded."

BLACK'S LAW DICTIONARY 555 (9th ed.). And, the document is financial, because

it inquires into matters regarding "the management of money" when it asks if the

applicant has had any demands or judgments against it, or been found liable of

conversion or misappropriation. Id. at 706. Therefore, Goff's false statement falls

within the purview of § 1033(a).

V.

In his fifth and final point of error, Goff contends that the Government

violated his right to due process when it intimidated one of his witnesses—Thomas

Gallion. "Substantial interference with a defense witness's free and unhampered

choice to testify violates [the] due process rights of the defendant." Demps v.

Wainwright, 805 F.2d 1426, 1433 (11th Cir. 1986); see also Webb v. Texas, 409

U.S. 95, 93 S. Ct. 351 (1972). Here, the Government's suggestion that Gallion be

read his rights prior to testifying did not substantially interfere with Gallion's

9
choice to testify. After the district court, the Government, and Gallion discussed

Gallion's possible exposure to criminal charges, during the proffer hearing Gallion

testified under oath for the proffer to all of the conduct that could have given rise

to criminal charges. We see no interference here. Gallion did not invoke his right

to remain silent either at the proffer hearing or the following day when he did not

testify. Neither the Government nor the district court engaged in protracted

admonitions or unnecessarily strong terms like those in Webb. Accordingly, we

find that Goff's due process rights were not violated when the Government asked

that Gallion be warned of his rights before testifying.

AFFIRMED.

10