[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12577

________________________

D.C. Docket No. 1:13-cr-00117-WS-C-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

YAMAN SENCAN, 

DAVID PETERSEN,

 Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Southern District of Alabama

________________________

(October 23, 2015)

Before JORDAN and JULIE CARNES, Circuit Judges, and ROBRENO,

* District 

Judge.

 * Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of 

Pennsylvania, sitting by designation.

Case: 14-12577 Date Filed: 10/23/2015 Page: 1 of 18 
2

PER CURIAM: 

Yaman Sencan, David Petersen, Stephen Merry, and Timothy Durkin were 

charged in a 20-count indictment for crimes related to a Ponzi scheme. The 

indictment charged them with conspiracy to commit securities and wire fraud, in 

violation of 18 U.S.C. § 371 (Count 1), one count of aiding and abetting securities 

fraud, in violation of 15 U.S.C. § 77q and 18 U.S.C. § 2 (Count 2), and 18 counts 

of aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2 and 1343 (Counts 

3-20). 

Durkin fled the country and has yet to be apprehended. The other three 

(collectively referred to as “Defendants”) pled not guilty and proceeded to trial. At 

the close of the Government’s case, and again at the close of all the evidence, 

Defendants unsuccessfully moved for judgments of acquittal. Defendants were 

convicted on all counts and each sentenced to 60 months’ imprisonment. Sencan

appeals his conviction; Petersen appeals his conviction and sentence.1 After a 

careful review of the record and with the benefit of oral argument, we AFFIRM. 

I. BACKGROUND

Defendants operated a classic Ponzi scheme between 2009 and 2012. “The 

modus operandi of a Ponzi scheme is to use newly invested money to pay off old 

 1

 Because Defendant Merry died while the appeal was pending, this Court dismissed his appeal 

as moot.

Case: 14-12577 Date Filed: 10/23/2015 Page: 2 of 18 
3

investors and convince them that they are earning profits rather than losing their 

shirts.” In re Rothstein, Rosenfeldt, Adler, P.A., 717 F.3d 1205, 1207 n.5 (11th Cir. 

2013) (internal quotations omitted). To that end, Defendant Sencan, the project’s 

“go-to man,” explained to potential investors that a company named Westover 

Energy Trading, LLC (“Westover”)2 had developed a computer algorithm to make 

rapid, highly profitable stock trades. By investing in Westover, Sencan boasted 

that investors would earn 25% returns with virtually no risk. The truth was that 

only a fraction of investors’ funds were transferred to Westover and invested. The 

rest was distributed to earlier investors as “profits” from stock trades, or kept by 

Defendants. 

Sencan got each new investor to enter into a “co-investment agreement” 

with RAMCO and Associates, LLC (“RAMCO”), a company that Defendant 

Merry and his wife owned. According to the agreement, RAMCO had an 

“ongoing relationship” with Westover permitting it to invest funds in Westover’s 

“automated proprietary trading platform.” Under the agreement, investors would 

wire their money to RAMCO, which in turn would transfer all funds to Westover 

for investment. RAMCO was authorized to receive 50% of the net profits 

generated from Westover’s trading program, but it was not authorized to take any

 2

 Defendant Durkin, the fugitive, was Westover’s managing partner. 

Case: 14-12577 Date Filed: 10/23/2015 Page: 3 of 18 
4

of the investors’ principal, nor was it entitled to any fees until actual profits were 

earned. Sencan provided all potential investors with a copy of this agreement.

Instead of complying with the agreement, Sencan instructed investors to 

wire their funds to an entity called “RAMCO 1 Business Trust” (“RAMCO 1”), a 

Nevada business trust formed by Petersen and Merry. Petersen served as RAMCO

1’s accountant, and he and Merry exercised exclusive control over the trust’s bank 

account. The victims, however, were never informed that their investments were

going to a trust that gave Petersen and Merry untethered control over their money.

After investors wired their money to the RAMCO 1 account, Sencan would 

tell Petersen how to divert the funds. Instead of investing the funds with Westover, 

Petersen would transfer them from RAMCO 1 into various business and personal 

accounts that he, Sencan, and other conspirators controlled. At that point, 

Defendants would distribute some of the funds to investors, who believed they 

were receiving profits, and would use the rest for personal expenses. 

To convince investors that Westover’s trading technology was profitable, 

Petersen prepared weekly financial statements and sent them to Sencan, who then

forwarded them to investors. Because the statements falsely reported steady

Case: 14-12577 Date Filed: 10/23/2015 Page: 4 of 18 
5

profits, they were instrumental in swaying investors to sink additional money into 

the scam––and to encourage their friends and family to do likewise.

3

In January 2012, Sencan told investors that RAMCO and Westover were 

ending their investment relationship and that RAMCO would return all 

investments, including profits, after the final trades. But the investors never saw 

their money again. As investors repeatedly demanded their money back, Sencan 

reassured them that he was trying to solve the problem and blamed Westover for 

the delay in releasing the funds. Of course, Sencan knew that little if any of the 

money went to Westover in the first place. 

As these events unfolded, investors became suspicious that they were 

victims of a Ponzi scheme. Indeed, between November 2011 and July 2012, 

Sencan had been warned several times by different investors, and ultimately even 

by the FBI, that he was actively involved in a Ponzi scheme. Yet, this news did

not slow him down, and he continued to send financial statements and reassure 

investors until the scheme finally imploded and this criminal prosecution followed. 

In the end, investors placed $4.6 million in the RAMCO 1 account, from 

which Sencan, Petersen, and other conspirators stole $1.5 million and distributed 

 3 Sencan also told investors that he had invested his own life savings in Westover, which it 

turned out amounted to around $40,000 from the sale of a piano. In contrast, many investors 

were transferring hundreds of thousands of dollars to RAMCO 1. Tellingly, Petersen never 

invested his own money in the scheme, even as he prepared financial reports showing 25% 

returns. 

Case: 14-12577 Date Filed: 10/23/2015 Page: 5 of 18 
6

$3.1 million, as Ponzi payments, to earlier investors. Sencan used $102,000 of the 

investors’ money for personal expenses and transferred $175,000 to his wife, for a 

total haul of $277,000. Petersen spent $252,000 of investor funds on personal 

expenses, including mortgage payments, credit card payments, and car payments.

II. DISCUSSION

A. Defendant Sencan 

Sencan’s only argument on appeal is a challenge to the sufficiency of the 

evidence to sustain his convictions. We review challenges to the sufficiency of 

evidence de novo. United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).

We review the evidence in the light most favorable to the Government and resolve

all reasonable inferences in favor of the jury’s verdict. United States v. Doe, 661 

F.3d 550, 560 (11th Cir. 2011). “A conviction must be upheld unless the jury 

could not have found the defendant guilty under any reasonable construction of 

evidence.” United States v. Byrd, 403 F.3d 1278, 1288 (11th Cir. 2005).

To sustain a conviction for conspiracy to commit a fraud, the Government 

must prove that a defendant “knew of and willfully joined the unlawful scheme to 

defraud.” United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). 

Circumstantial evidence can be used to prove knowledge of a scheme. Id.

Furthermore, “[a] scheme to defraud requires proof of a material 

misrepresentation, or the omission or concealment of a material fact calculated to 

Case: 14-12577 Date Filed: 10/23/2015 Page: 6 of 18 
7

deceive another out of money or property.” Id. Sencan argues that the record is 

devoid of evidence that he intentionally participated in a fraudulent scheme, or that 

he knowingly made a material misrepresentation. We find the evidence to be more 

than adequate.4

As described above, Sencan regularly instructed investors to wire money to 

RAMCO 1, after which he instructed Petersen to divert the money into other 

accounts, not to Westover. For example, in July 2011, an investor wired $100,000 

to RAMCO 1 expecting it to be invested using Westover’s advanced computer 

program. That same day, Sencan instead told Petersen to distribute the sum to 

various investor accounts. Consistent with those instructions, Petersen moved 

$12,800 into a business account that he and Merry controlled. He also wired

$86,980 to Sencan, who used those funds to pay two investors, keeping a cut of 

$17,000 for himself. None of the money was moved to Westover as promised in 

the co-investment agreement. Despite knowing that these funds were not being 

invested with Westover––meaning there was no chance that investors would earn a 

profit or necessarily even get their principal back––Sencan continued to send 

investors weekly emails falsely showing they were earning major profits. Then, 

 4

 Our sufficiency-of-the-evidence analysis also applies to both the substantive securities and 

wire-fraud charges because these crimes require proof of the underlying scheme to defraud. See

15 U.S.C. § 77q (criminalizing the use of interstate communications in the offer or sale of 

securities in a scheme to defraud) and 18 U.S.C. § 1343 (criminalizing the use of wire 

communications in interstate commerce in the course of a scheme to defraud).

Case: 14-12577 Date Filed: 10/23/2015 Page: 7 of 18 
8

when investors began to make requests for their money, Sencan reassured investors 

by telling them that he was in the same situation they were, even though he had 

earned back his $40,000 investment several times over, funneling nearly $300,000 

of investors’ money to his personal account and to his wife.

These acts alone demonstrate Sencan’s knowledge that he was part of a 

fraudulent scheme. Further, the Government presented evidence confirming that 

Sencan was on notice of his wrongdoing as he continued to participate in the fraud. 

Specifically, even when Sencan was warned several times by investors and the FBI 

that he was involved in a Ponzi scheme, he failed to heed the warnings and

continued to send monthly statements to investors. Based on the evidence, the jury 

reasonably concluded that Sencan knew he was involved in a Ponzi scheme and 

knowingly made material misrepresentations to investors.

5

 Sencan’s convictions

are therefore AFFIRMED. 

B. Defendant Petersen

 5

 Sencan argues that he was “even more persuasively entitled to a . . . judgment of acquittal” 

after investor Bill Abrams, who had warned Sencan about being involved in a Ponzi scheme, 

testified that he did not believe that Sencan intended to deceive him. Essentially, this argument 

asks us to weigh the persuasiveness of various pieces of evidence, which is the wrong inquiry. 

Rather, we are to “accept all reasonable inferences and credibility determinations made by the 

jury,” as “[t]he jury is free to choose between or among the reasonable conclusions to be drawn 

from the evidence presented at trial.” United States v. Sellers, 871 F.2d 1019, 1021 (11th Cir. 

1989). Because the jury could have reasonably believed that Abrams was wrong about Sencan’s

intentions or simply determined that Abrams was not credible on this point, Abram’s testimony 

does not somehow make the evidence insufficient to support Sencan’s conviction. 

Case: 14-12577 Date Filed: 10/23/2015 Page: 8 of 18 
9

Petersen argues that (1) there was insufficient evidence to support his 

conviction, (2) the evidence at trial materially varied from the indictment, (3) 

prosecutorial misconduct warrants reversal, (4) the Government failed to turn over 

financial documents to the defense before trial, (5) the court erred in not applying 

the “minor participant” reduction under the Sentencing Guidelines, (6) the court 

erred in calculating the loss and restitution amounts, and (7) appointed appellate 

counsel was prejudiced because he was only permitted 35 days to review the 

record.

1. Sufficiency of the Evidence

Defendant Petersen similarly mounts a sufficiency challenge, arguing that he 

merely used the weekly data supplied by Westover to prepare the charts he sent to 

Sencan, who in turn sent them to investors. Nevertheless, there was sufficient

evidence to convict Petersen.

First, Petersen committed acts that were necessary for the ongoing success 

of the scheme. He co-owned RAMCO 1, served as its accountant, received 

monthly account statements, diverted investor funds that were supposed to go to 

Westover, and generated the account statements sent to investors that falsely 

reported profits on their investments. Indeed, these false financial statements he 

prepared were crucial to recruiting investors and keeping them in the dark. See 

United States v. Bradley, 644 F.3d 1213, 1239 (11th Cir. 2011) (“A 

Case: 14-12577 Date Filed: 10/23/2015 Page: 9 of 18 
10

misrepresentation is material if it has a natural tendency to influence, or is capable 

of influencing, the decision maker to whom it is addressed.” (internal quotations 

omitted)).

As to his knowledge that he was facilitating a fraudulent scheme, Petersen 

was necessarily aware that the account statements he was creating contained false 

information because there were, in fact, no profits being earned by the victims’ 

investments. Moreover, he was necessarily aware that instead of being invested, 

the victims’ funds were either being used to make payments to earlier investors or 

were being diverted to coconspirators. In fact, he clearly knew that he had 

received a substantial sum of money skimmed from the investments. The jury 

therefore could reasonably have concluded that the material misrepresentations 

found in the financial statements created by Petersen were made knowingly by 

him.6

 

Further, even if Petersen, himself, did not make material misrepresentations

to investors,

7 he was convicted of wire and securities fraud under an aiding and 

abetting theory. “To prove aiding and abetting, the government must demonstrate 

that a substantive offense was committed, that the defendant associated himself 

 6

 As noted, Petersen invested none of his own money in Westover even though it supposedly 

promised high returns at low risk. This fact further suggests that he knew the fraudulent nature 

of the scheme. 

7

 Although Petersen states that he never directly communicated with investors, there was 

evidence he communicated with and personally lured at least one investor into the scam. 

Case: 14-12577 Date Filed: 10/23/2015 Page: 10 of 18 
11

with the criminal venture, and that he committed some act which furthered the 

crime.” United States v. Hamblin, 911 F.2d 551, 557 (11th Cir. 1990). In short, 

there was sufficient evidence to allow the jury to conclude that Petersen both 

furthered the scheme and did so knowingly. 

2. Material Variance 

Petersen next argues that his convictions should be reversed due to a 

material variance between the indictment and the evidence presented at trial. “The 

standard of review for whether there is a material variance between the allegations 

in the indictment and the facts established at trial is twofold: First, whether a 

material variance did occur, and, second, whether the defendant suffered 

substantial prejudice as a result.” United States v. Chastain, 198 F.3d 1338, 1349 

(11th Cir. 1999). In evaluating substantial prejudice, we consider whether “the 

proof at trial differed so greatly from the charges that appellant was unfairly 

surprised and was unable to prepare an adequate defense.” United States v. 

Calderon, 127 F.3d 1314, 1328 (11th Cir. 1997).

According to Petersen, the evidence at trial materially varied from the 

indictment in three ways: (1) the indictment alleged that Defendants falsely 

represented that a New York real estate mogul was a principal investor in 

Westover, yet the trial evidence showed that the investor was actually associated 

with the firm; the Government changed its theory of the conspiracy at trial by 

Case: 14-12577 Date Filed: 10/23/2015 Page: 11 of 18 
12

showing evidence of a separate conspiracy without Defendant Durkin, the fugitive; 

and (3) the Government turned the trial into a “tax case” by introducing tax 

documents into evidence. 

First, the trial evidence was consistent with the indictment’s allegations that 

the New York real estate mogul was not a major investor and had not authorized 

his name to be associated with Westover. More to the point, any variance on this 

issue could not have affected Petersen’s ability to prepare an adequate defense, for 

the evidence of his guilt stemmed from his ownership of the RAMCO 1 account 

and the preparation of false investor statements, not anything specifically related to 

this investor. 

Next, the Government did not seek to prove a different conspiracy at trial.

The Government mentioned Durkin’s participation in the scheme throughout trial. 

Naturally, because Durkin had absconded and was not on trial, the Government 

spent much less time focusing on his participation in the fraud.

Finally, the Government’s introduction of tax returns into evidence did not 

turn the proceeding into a “tax case.” Petersen could not have been unfairly 

surprised that the Government used RAMCO 1 tax documents to prove that he 

moved money in and out of the trust account. In sum, there was no material 

variance at trial causing substantial prejudice.

Case: 14-12577 Date Filed: 10/23/2015 Page: 12 of 18 
13

3. Prosecutorial Misconduct

Petersen argues that his conviction should be reversed because of 

prosecutorial misconduct. He specifically asserts that the lead investigative agent 

(1) gave incomplete and misleading trial testimony, (2) failed to investigate a

primary witness; and (3) failed to zealously seek the extradition of Durkin. 

To establish a prosecutorial misconduct claim, Petersen must show the 

Government’s conduct was improper and prejudiced his “substantial rights.”

United States v. Hasner, 340 F.3d 1261, 1275 (11th Cir. 2003). A defendant’s 

substantial rights are prejudiced if there is a “reasonable probability” that, but for 

the misconduct, “the outcome of the trial would have been different.” United 

States v. Capers, 708 F.3d 1286, 1308–09 (11th Cir. 2013). Because Petersen did 

not object to the alleged improper conduct below, we review only for “plain error

that is so obvious that failure to correct it would jeopardize the fairness and 

integrity of the trial.” United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 

1997). 

With respect to the lead agent, Defendants cross-examined him about his 

investigation and had the opportunity to clarify any incomplete or misleading 

aspects of his testimony. We find nothing improper about his testimony or 

investigation. Nor was there misconduct surrounding efforts to extradite Durkin. 

In fact, the Government had taken numerous steps to alert domestic and 

Case: 14-12577 Date Filed: 10/23/2015 Page: 13 of 18 
14

international law enforcement agencies to Durkin’s pending arrest warrant. 

Finally, Petersen failed to articulate how the outcome of his trial would have been 

different absent this alleged misconduct, given the ample evidence supporting his 

conviction. We find no plain error.

4. Brady Issue 

Petersen makes a passing reference in his brief to a Brady8 violation, stating 

that some financial documents were not turned over to the defense until the parties 

were preparing for sentencing. “A passing reference to an issue in a brief is not 

enough [to preserve it for appellate review], and the failure to make arguments and 

cite authorities in support of an issue waives it.” Hamilton v. Southland Christian 

Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012). Because Petersen supplies no 

facts or legal arguments to support his Brady claim, we cannot meaningfully 

examine it.

5. Minor Role Reduction

Petersen contends that he was entitled to a minor role adjustment9 for 

sentencing purposes in view of the total conduct of the conspiracy and his role 

relative to his coconspirators. A determination that a defendant is not qualified for

 8 Under the rule first announced in Brady v. Maryland, 373 U.S. 83, 87 (1963), prosecutors are 

required to disclose evidence favorable to a defendant where the evidence is material to the 

defendant’s guilt or punishment.

9

 Under U.S.S.G. § 3B1.2(b), the defendant may receive a two-point reduction “[i]f the 

defendant was a minor participant in any criminal activity.”

Case: 14-12577 Date Filed: 10/23/2015 Page: 14 of 18 
15

a role reduction is a finding of fact reviewed for clear error. United States v. 

Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc). In 

determining whether to grant a minor role reduction, “(1) the court must compare 

the defendant’s role in the offense with the relevant conduct attributed to him in 

calculating his base offense level; and (2) the court may compare the defendant’s 

conduct to that of other participants involved in the offense.” United States v. 

Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). “[A] defendant is not 

automatically entitled to a minor role adjustment merely because [he] was 

somewhat less culpable than the other discernable participants.” United States v. 

Bernal-Benitez, 594 F.3d 1303, 1320–21 (11th Cir. 2010) (quotations omitted).

The district court did not clearly err by denying a minor role reduction. In 

light of Petersen’s involvement, the court reasonably concluded that Petersen was 

not substantially less culpable than the other participants. See Alvarez-Coria, 447 

F.3d at 1343. In any event, any error was harmless. An error in calculating the 

Guidelines range is harmless if (1) the district court would have imposed the same 

sentence regardless of its ruling on the Guidelines issue, and (2) the sentence 

would be reasonable even if that issue had been decided in the defendant’s favor. 

See United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). 

Here, the Guidelines range was 135 to 168 months’ imprisonment, yet the 

court imposed a below-Guidelines sentence of only 60 months. Further, the court 

Case: 14-12577 Date Filed: 10/23/2015 Page: 15 of 18 
16

declared that it would have imposed the same 60-month sentence even if it had 

granted the role reduction. In fact, had the court granted the requested two-point

reduction, the adjusted range would have been 108 to 135 months. The 60-month 

sentence imposed was well below the range to which Defendant contends he was 

entitled. Further, we conclude that a 60-month sentence was reasonable no matter 

the Guidelines range. In fact, the district court considered all the relevant factors 

under 18 U.S.C. § 3553(a) and made findings supported by the record. Based on 

these findings, the resulting below-Guidelines sentence of 60 months’ 

imprisonment was within “the range of reasonable sentences dictated by the facts 

of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) 

(quotation marks omitted). Thus, even were there any error, it would have been 

harmless.

6. Loss-Amount Calculation

Petersen also argues that the court double-counted the loss suffered by one 

of the victims and thus overstated the total loss by at least $683,000. Based on 

calculations asserted for the first time on appeal, he states that the correct loss 

amount should have earned him a 16-level sentencing enhancement, not the 18-

level enhancement shown in the presentence report and applied by the district 

court.

Case: 14-12577 Date Filed: 10/23/2015 Page: 16 of 18 
17

We review the district court’s loss determination for clear error. See United 

States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005). However, “a party may not 

challenge as error a ruling or other trial proceeding invited by that party.” United 

States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (quotations omitted). Invited 

error exists when a party’s statements or actions induce the district court into 

making an error. United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006).

An insurmountable problem for Petersen is the fact that he not only failed to 

make this argument below, but he also acquiesced to the correctness of the loss 

calculation made by the district court. Specifically, prior to sentencing, defense 

counsel had expressed concern that victims who had invested in the Ponzi scheme,

both individually and through corporate investor EMR, might receive double 

restitution under the wording of the proposed judgment. To eliminate that risk, 

Petersen’s counsel suggested that the district court strike “Spellmeyer” from the 

phrase “EMR/Spellmeyer” in the table of losses to clarify that EMR alone was 

entitled to restitution for the corresponding loss. Articulating no objection to the 

total loss amount, counsel said the court should enter the judgment with his 

proposed modification, and the court did so, making clear that the loss amount in 

the PSR remained unchanged. In fact, had Petersen wanted to object to the loss 

amount, the Government indicated that it had a witness prepared to testify about 

that amount. In short, even assuming that the district court erred in its calculation 

Case: 14-12577 Date Filed: 10/23/2015 Page: 17 of 18 
18

of loss, Petersen invited the error. Moreover, as discussed above with regard to the 

minor role adjustment, the district court indicated that its 60-month sentence was 

the sentence it would have imposed, based on § 3553 factors, regardless of the

Guidelines calculations. 

7. Time Permitted for Counsel on Appeal

Lastly, Petersen argues that he was prejudiced because his appointed 

appellate counsel was afforded only 35 days to review the trial record. Petersen 

was granted a one-week extension and then was granted leave to file his brief out 

of time. Petersen fails to show that he was prejudiced.

III. CONCLUSION

For the foregoing reasons, we affirm Sencan and Petersen’s convictions, and 

we affirm Petersen’s sentence. 

AFFIRMED.

Case: 14-12577 Date Filed: 10/23/2015 Page: 18 of 18