REVISED April 7, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31003

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee,

v.

GIRAY BIYIKLIOGLU, also known as Johnny Bryan, 

 Defendant – Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CR-202

Before REAVLEY, JOLLY, and ELROD, Circuit Judges.

PER CURIAM:*

Giray Biyiklioglu appeals his conviction and sentence for wire fraud, 

aggravated identity theft, tax evasion, and money laundering. Because the 

government failed to produce evidence that certain fraudulent wires crossed 

state lines, that Biyiklioglu knew that one of his victims was an actual person, 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2016

Lyle W. Cayce

Clerk

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and that Biyiklioglu structured his financial transactions with the intent to 

evade taxes, we REVERSE Biyiklioglu’s conviction as to counts 1–9, 11–14, 

21–23, and 26 of the indictment. Biyiklioglu’s various challenges to his 

conviction of the remaining counts fail, and we AFFIRM his conviction as to 

counts 10, 15, 17–20, 24, 25, and 27–41. Because the sentences imposed for 

the reversed and affirmed counts of conviction are intertwined, we VACATE 

Biyiklioglu’s sentence and REMAND for resentencing.

I.

A jury convicted Giray Biyiklioglu of thirteen counts of wire fraud, six 

counts of aggravated identity theft, two counts of tax evasion, and nineteen 

counts of money laundering, all arising from a scheme in which Biyiklioglu 

transferred money online among his bank accounts and numerous fraudulent 

PayPal accounts and then disputed certain transactions so as to cause double 

payments to his bank accounts and corresponding losses to PayPal.1 Evidence 

adduced at trial showed that Biyiklioglu created and controlled about thirty

fraudulent PayPal accounts bearing names other than his own. He engaged in 

a pattern of transferring money from bank accounts in his name to the 

fraudulent PayPal accounts and then out to a different bank account through 

Automated Clearinghouse (ACH) transactions, and then disputing the ACH 

transactions with the first bank as unauthorized transfers.2 This would often 

cause the first bank to credit the disputed ACH funds to Biyiklioglu’s bank 

account and to debit the PayPal account. Because Biyiklioglu had already 

transferred the money out of the PayPal account, this would result in a loss to 

 

1 PayPal is a global payment processor business that allows customers to make 

payments and send money transfers through the Internet.

2 Automatic Clearing House is a system that allows banks to make automated 

transfers of a large number of debits and credits to banks across the United States.

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PayPal and a doubling of Biyiklioglu’s money. In total, Biyiklioglu caused 

PayPal to lose more than $418,000 through ACH reversals.

At trial, Biyiklioglu admitted that he owned all twenty-four bank 

accounts identified in the indictment. These accounts were with six different 

banks, all with locations in the Eastern District of Louisiana. He also admitted 

that he had disputed certain transfers from these accounts, resulting in tens 

of thousands of dollars in ACH reversals from PayPal. Other trial evidence 

showed that Biyiklioglu created a company, Big Stake Investments, L.L.C., of 

which he was the sole member, and that he used accounts of Big Stake 

Investments as part of the PayPal fraud scheme. The evidence also showed 

that Biyiklioglu sent PayPal identification documents, bank statements, and 

utility bills, many of which were falsified, to set up the fraudulent PayPal 

accounts. Biyiklioglu’s laptop computer contained information related to two 

of the fraudulent PayPal accounts.

The jury found Biyiklioglu guilty on all forty counts on which he was 

tried.3 The district court denied Biyiklioglu’s motions for acquittal and 

sentenced him to 192 months’ imprisonment. Biyiklioglu filed this appeal 

challenging his conviction and sentence.4 Biyiklioglu argues that: (1) he was 

deprived of his right to self-representation at trial; (2) the evidence was 

insufficient to sustain his conviction for wire fraud, aggravated identity theft, 

tax evasion, and money laundering; (3) the district court improperly admitted 

evidence related to twenty-two PayPal accounts not included in the indictment; 

(4) the district court gave the jury erroneous instructions on a number of issues

 

3 Biyiklioglu was tried on counts 1–15 and 17–41 of the Second Superseding 

Indictment. The government dismissed count 16 on the morning of the first day of trial 

because it had been unable to secure the appearance of the victim in that count.

4 Biyiklioglu was represented by court-appointed counsel in the district court and 

when he filed his appeal. We granted Biyiklioglu’s motion to relieve his counsel and allow 

him to proceed pro se, and Biyiklioglu filed his briefs pro se.

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related to the wire fraud and tax evasion charges; (5) “spillover” from invalid 

claims may require a new trial on the remaining claims; and (6) the district 

court erred in enhancing Biyiklioglu’s sentence based on its findings of the loss 

amount, the number of victims, the unusual vulnerability of some victims, and 

Biyiklioglu’s obstruction of justice.

II.

Biyiklioglu first argues that he was denied his right to selfrepresentation. The Sixth Amendment guarantees the right of a criminal 

defendant to represent himself at trial. Faretta v. California, 422 U.S. 806, 

818 (1975). To invoke the right, “[t]he defendant must knowingly and 

intelligently forego his right to counsel, and must clearly and unequivocally 

request to proceed pro se.” United States v. Long, 597 F.3d 720, 724 (5th Cir. 

2010). Furthermore, even if the defendant has knowingly and voluntarily 

chosen to represent himself after a Faretta hearing at which the trial court 

must caution him about the dangers of self-representation, “the defendant may 

waive his right to self-representation through subsequent conduct indicating 

an abandonment of the request.” Long, 597 F.3d at 724. “The denial of a 

defendant’s right to represent himself, if established, requires reversal without 

a harmless error analysis.” United States v. Majors, 328 F.3d 791, 794 (5th 

Cir. 2003).

In a letter to the district court before trial, Biyiklioglu wrote, “I want to 

leave the court appointed counsel and wish to represent myself pro-se at this 

point,” and explained that he was dissatisfied with his counsel’s performance 

and communications. The district court held a Faretta hearing at which 

Biyiklioglu again stated his wish to represent himself. In response to the 

district court’s inquiries, Biyiklioglu explained that he was frustrated at not 

having been allowed to file various pro se motions while represented by 

counsel. The district court explained that it would allow Biyiklioglu to file his 

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motions with or without a lawyer, and that it would recommend the 

appointment of a specific new defense attorney, who would “give you the 

attention that you need, that you deserve, and his demeanor, I think, is one 

that you’ll get along with him, okay.” Biyiklioglu responded, “Thank you very 

much, Your Honor.” Later in the hearing, the district court stated that 

Biyiklioglu’s pro se motions would not be filed into the record until he talked 

to his new lawyer, after which the district court would allow him to file his 

motions if he still wanted to do so. Biyiklioglu agreed.

Before the end of the hearing, the government’s counsel confirmed for 

the record that Biyiklioglu was content to proceed to trial with counsel after 

being allowed to file his motions:

[Government counsel]: Your Honor, I just wanted to make the 

record just to continue what Mr. Biyiklioglu said about that he did 

not want to proceed as pro se he wanted an attorney to represent 

himself. He said to me, and if he will confirm that. He was not 

going to go to trial without an attorney. He wanted to kind of pro 

se, to go pro se to just file his motions, but did not intend to go to 

trial without an attorney representing him; is that correct?

THE DEFENDANT: Yes, that’s –

[Government Counsel]: That’s what you just told me. So I just

wanted to make sure that he conveyed that to me, which he’s

already conveyed to the Court is that he always intended to go

forward -- to trial with an attorney.

THE COURT: Is that correct, Mr. Biyiklioglu?

THE DEFENDANT: Yes, Your Honor. As I stated to you also, I 

said I wanted to represent myself to just file the motions by myself.

After the Faretta hearing, Biyiklioglu was allowed to file his motions and then 

proceeded to trial with his newly-appointed counsel. He did not raise the topic 

of self-representation again.

Even assuming that Biyiklioglu “clearly and unequivocally” invoked his 

right to self-representation, his subsequent statements before the end of the 

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Faretta hearing “indicat[ed] an abandonment of the request” so as to waive his 

right to proceed pro se. Long, 597 F.3d at 724. Biyiklioglu thanked the district 

court for appointing new counsel and agreed with government counsel’s 

statement that Biyiklioglu had wanted to represent himself only for the 

purposes of filing the motions and had not intended to proceed to trial without 

counsel. Under these circumstances, the district court did not err by 

appointing new counsel to represent Biyiklioglu at trial.

III.

Biyiklioglu next challenges the sufficiency of the evidence to support his 

various counts of conviction. Where, as here, the defendant has preserved a 

sufficiency of the evidence challenge by timely moving for acquittal, we review 

the challenge de novo. United States v. Brown, 727 F.3d 329, 335 (5th Cir. 

2013). We “must affirm a conviction if, after viewing the evidence and all 

reasonable inferences in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 

301 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 

(1979)).

A.

Counts 1–13 of the indictment alleged wire fraud in violation of 18 U.S.C. 

§ 1343. “To prove wire fraud, the government must prove: (1) a scheme to 

defraud; (2) the use of, or causing the use of, wire communications in 

furtherance of the scheme; and (3) a specific intent to defraud.” United States 

v. Kuhrt, 788 F.3d 403, 413-14 (5th Cir. 2015), cert. denied, No. 15-6608, 2016 

WL 854224 (U.S. Mar. 7, 2016). A conviction under § 1343 “requires that the 

wire communication cross state lines.” Smith v. Ayres, 845 F.2d 1360, 1366 

(5th Cir. 1988) (explaining that where relevant telephone calls were all 

intrastate, there was no act that could have constituted wire fraud); United 

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States v. Izydore, 167 F.3d 213, 219 (5th Cir. 1999) (“[T]he communication at 

issue must satisfy the interstate nexus set forth in § 1343; it is an immutable 

requirement.”) (reversing wire fraud conviction based on intrastate telephone 

calls and noting that the interstate nexus requirement is not a substantive 

element of wire fraud but arises from constitutional limitations on 

congressional power over intrastate activities); 18 U.S.C. § 1343 (prohibiting 

transmission of fraudulent communication by wire “in interstate or foreign 

commerce”). The use of the Internet alone is insufficient to establish the 

required interstate nexus. See United States v. Kieffer, 681 F.3d 1143, 1155 

(10th Cir. 2012) (“[O]ne individual’s use of the internet, ‘standing alone,’ does 

not establish an interstate transmission . . . because the origin and host 

servers, whether one and the same or separate, might be located in the same 

state as the computer used to access the website.”).

Biyiklioglu argues that the government did not prove the required 

interstate nexus as to counts 1–9 and 11–13. He argues that with respect to 

counts 2, 4, 5, 8, 9, 12, and 13, the government failed to prove that the money 

wired from PayPal’s bank to Biyiklioglu’s accounts crossed state lines, and that 

with respect to counts 1, 3, 6, 7, and 11,5 the government did not prove that the 

identification information submitted to PayPal’s computers originated from 

Biyiklioglu’s Internet service provider in Louisiana. The government counters 

that “[b]ecause PayPal’s data centers are located outside of Louisiana, the 

necessary result of a wire transfer directed by PayPal to Biyiklioglu’s bank 

accounts in Louisiana is that the wire transfer crossed state lines,” and that 

Biyiklioglu’s wirings of victims’ personal information to PayPal also crossed 

 

5 Biyiklioglu’s briefs list counts 1, 2, 6, 7, and 11 for this argument, but he notified the 

court by motion that this was a typographical error.

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state lines because PayPal received all of the victims’ information through the 

Internet outside of Louisiana, where Biyiklioglu and five victims lived.

The government’s first argument fails. The evidence at trial established, 

and indeed it is undisputed, that PayPal engages with customers solely on the 

Internet, that PayPal has no data facilities in Louisiana, and that Biyiklioglu 

lived in Louisiana and had bank accounts there. The evidence also established 

that the ACH disputes associated with Biyiklioglu that caused PayPal’s losses 

were faxed to PayPal’s bank processor, Wells Fargo. Wells Fargo then 

transferred the disputed payments back to Biyiklioglu’s bank accounts, and it 

is these wire transfers that give rise to counts 2, 4, 5, 8, 9, 12, and 13. There 

was no testimony, however, about where Wells Fargo was located, or where 

Biyiklioglu’s or Wells Fargo’s Internet servers were located.6 It is possible that 

they were all located in Louisiana, such that the ACH wire transfers did not 

cross state lines, and there is no evidence in the record from which the jury 

could find otherwise beyond a reasonable doubt. In sum, there was no evidence

as to the interstate nature of the ACH transfers from Wells Fargo to 

Biyiklioglu’s bank accounts, regardless of the location of PayPal’s data centers. 

See Izydore, 167 F.3d at 219 (reversing wire fraud conviction where evidence 

did not establish location of caller so as to establish interstate nexus).

The government cites United States v. Mills for the proposition that 

when a scheme is “an ongoing venture and not a ‘one-shot’ operation,” and wire 

 

6 The government has not cited to any such testimony, and the court’s independent 

review of the trial record reveals none. Indeed, notwithstanding Biyiklioglu’s argument to 

the court at the close of the government’s case that the wire fraud charges failed because 

“there was no indication that one could foresee that these ACH forms would travel in 

interstate commerce,” the government did not address the interstate nexus requirement in 

its closing argument. Cf. United States v. Davis, 735 F.3d 194, 199 (5th Cir. 2013) (“This 

court has admonished the government to exercise care in satisfying its burden of proving the 

financial-institution element in prosecuting bank fraud and other bank-related offenses, lest 

it suffer a reversed conviction on a seeming technicality.”) (reversing conviction for bank 

fraud).

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communications are “at the heart of the scheme and were of necessity 

interstate,” the interstate nexus is established. 199 F.3d 184, 189–90 (5th Cir. 

1999). However, the government has not pointed to any evidence that the 

transmissions of the ACH dispute information from Wells Fargo to PayPal—

which necessarily crossed state lines if Wells Fargo was located in Louisiana—

were at the heart of Biyiklioglu’s scheme, nor does the court’s review of the 

record reveal any such evidence. For example, there is no evidence in the 

record that Wells Fargo transmitted the information to PayPal before 

refunding the disputed funds to Biyiklioglu’s bank accounts or that Wells 

Fargo required authorization from PayPal to reverse the ACH transfers. 

Accordingly, the government has not established the required interstate nexus 

for the wire transfers in counts 2, 4, 5, 8, 9, 12, and 13, and we reverse 

Biyiklioglu’s conviction as to those counts. See Izydore, 167 F.3d at 219; United 

States v. Garrido, 713 F.3d 985, 998 (9th Cir. 2013) (reversing wire fraud 

conviction where fax was sent from one location in California to another).

As for the counts relating to Biyiklioglu’s transfer of identification 

information to PayPal to set up fraudulent accounts, the government argues 

that PayPal received all of the victims’ information through the Internet, and 

that “Biyiklioglu lived in Louisiana, as did five victims; he received the wire 

fraud proceeds there; and he controlled the victims’ personal information, 

storing it on his computer and in his home and emailing it to his wife,” such 

that “a rational fact-finder could find that Biyiklioglu’s wirings of the victims’ 

personal information crossed interstate lines.” However, as Biyiklioglu 

correctly argues, the government has not presented evidence of the particular 

wirings of identification information to PayPal that give rise to counts 1, 3, 6, 

7, and 11, or any evidence that Biyiklioglu sent that information from his 

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computer in Louisiana.7 The use of the Internet alone is insufficient to 

establish that Biyiklioglu sent the information to PayPal across state lines. 

See Kieffer, 681 F.3d at 1155. Accordingly, the government has failed to 

establish the required interstate nexus for the alleged wire transmissions in 

counts 1, 3, 6, 7, and 11, and we reverse Biyiklioglu’s conviction as to those 

counts.8 See Izydore, 167 F.3d at 219; Garrido, 713 F.3d at 998.

Biyiklioglu challenges his conviction for count 10 on other grounds, 

arguing that “the government pleaded a single unitary scheme to defraud 

involving false claims to banks which it failed to prove” and the difference 

between the government’s theory at trial and in the indictment requires 

reversal of Biyiklioglu’s conviction. Biyiklioglu relies solely on United States 

v. Mastelotto, 717 F.2d 1238, 1248–49 (9th Cir. 1983) (“A defendant cannot be 

convicted of a count charging participation in a fraudulent scheme Y where the 

grand jury indicted based on his participation in a fraudulent scheme X, even 

if the schemes themselves overlap or are concentric.”). Mastelotto was 

overruled by United States v. Miller, which explained that “an indictment may 

charge numerous offenses or the commission of any one offense in several 

ways” and “[a]s long as the crime and the elements of the offense that sustain 

the conviction are fully and clearly set out in the indictment, the right to a 

grand jury is not normally violated by the fact that the indictment alleges more 

crimes or other means of committing the same crime.” 471 U.S. 130, 136 

(1985); see also United States v. Frega, 179 F.3d 793, 803 (9th Cir. 1999) (noting 

Mastelotto’s overruling by Miller).

 

7 In contrast, the government presented evidence that the identification information 

in count 10 was sent to PayPal from a computer in Biyiklioglu’s home. Biyiklioglu does not 

challenge the jurisdictional nexus as to count 10.

8 We do not reach Biyiklioglu’s remaining challenges to the sufficiency of the evidence 

supporting his conviction as to counts 1–9 and 11–13. 

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More importantly, there was no material variance between the 

indictment and the evidence at trial. See United States v. Mitchell, 484 F.3d 

762, 769 (5th Cir. 2007) (“A material variance occurs ‘when the proof at trial 

depicts a scenario that differs materially from the scenario charged in the 

indictment but does not modify an essential element of the charged offense.’”) 

(quoting United States v. Delgado, 401 F.3d 290, 295 (5th Cir. 2005)). The 

indictment alleged a scheme “to defraud PayPal by making wire transfers to 

and from bank accounts in [Biyiklioglu’s] name, using as intermediaries 

certain fraudulent PayPal accounts in the names of other individuals.” This is 

precisely what the evidence showed. Accordingly, we affirm Biyiklioglu’s 

conviction for wire fraud as to count 10.

B.

Counts 14, 15 and 17–20 of the indictment alleged aggravated identity 

theft in violation of 18 U.S.C. § 1028A, with each count identifying a different 

victim whose identity Biyiklioglu used to open a false PayPal account.9 To 

establish aggravated identity theft, the government must prove that 

Biyiklioglu (1) knowingly (2) used the means of identification of another person 

(3) without lawful authority (4) during and in relation to an enumerated 

offense, including wire fraud. United States v. Oliver, 630 F.3d 397, 415 (5th 

Cir. 2011). The government must show “that the defendant knew that the 

means of identification at issue belonged to another person.” Flores-Figueroa 

v. United States, 556 U.S. 646, 657 (2009).

Biyiklioglu argues that his conviction for count 14 should be reversed 

because the government failed to prove that he knew that the victim, James 

Smith, was an actual person. He argues that James Smith is a very common 

 

9 As noted above, count 16, which also alleged aggravated identity theft, was dismissed 

shortly before the trial began. 

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name, that the only identifying information submitted to PayPal in addition to 

Smith’s name was an address, and that the address was of an apartment 

building that Smith had lived at more than twenty years earlier.

The government responds that other circuits have held that knowledge 

that aggravated identity theft victims are actual people can be proven by 

evidence of the defendant’s willingness to test the means of identification by 

submitting it to a verification process. However, as Biyiklioglu correctly 

argues in reply, the cases cited by the government emphasize that repeated

successful submission of identification information can show knowledge that 

the victim is a real person. See United States v. Foster, 740 F.3d 1202, 1207 

(8th Cir. 2014) (“The conspirators’ repeated subjection of [the victim’s] identity 

to a lender’s scrutiny provides strong circumstantial evidence that the 

conspirators knew the identity was real.”); United States v. Valerio, 676 F.3d 

237, 244–45 (1st Cir. 2012) (“Valerio repeatedly subjected the [victim’s] 

identity to government scrutiny. . . . A ‘willingness to subject [a] social security 

card repeatedly to government scrutiny’ is evidence that allows a reasonable 

jury to find that a defendant knew that a stolen identity belonged to a real 

person.”) (citation omitted); United States v. Doe, 661 F.3d 550, 563 (11th Cir. 

2011) (“Perhaps most significant, Doe repeatedly and successfully tested the 

authenticity of [the victim’s] identifying information prior to submitting the 

passport application to the United States Department of State.”). Here, in 

contrast, the evidence at trial established only that Biyiklioglu on one occasion 

submitted Smith’s name and former address—along with a bank account, 

credit card, and e-mail address that were not actually Smith’s—to PayPal.

Nor did the evidence at trial establish that Biyiklioglu’s conduct was 

similar to other situations that the Supreme Court has stated would establish 

the requisite knowledge. See Flores-Figueroa, 556 U.S. at 656 (“[W]here a 

defendant has used another person’s identification information to get access to 

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that person’s bank account, the Government can prove knowledge with little 

difficulty. The same is true when the defendant has gone through someone 

else’s trash to find discarded credit card and bank statements, or pretends to 

be from the victim’s bank and requests personal identifying information. 

Indeed, the examples of identity theft in the legislative history (dumpster 

diving, computer hacking, and the like) are all examples of the types of classic 

identity theft where intent should be relatively easy to prove, and there will be 

no practical enforcement problem.”). Here, there was no evidence as to how 

Biyiklioglu obtained Smith’s name and former address. Unlike the victims in 

the other charged counts of aggravated identity theft, Smith lived in 

Washington, and there was no evidence suggesting that he and Biyiklioglu had

ever encountered one another.10 Under these circumstances, the evidence did 

not permit the jury to find beyond a reasonable doubt that Biyiklioglu knew 

Smith was a real person, and we therefore reverse his conviction as to count 

14.11

C.

 

10 The government cites to the testimony of Biyiklioglu’s ex-wife that he had told her 

a $300 payment from PayPal would be coming to her from James Smith, whom Biyiklioglu 

described as “his friend.” However, in light of Smith’s and Biyiklioglu’s uncontroverted 

testimony that they did not know each other, Biyiklioglu’s statement to his then-wife that 

Smith was his friend demonstrates only that he lied to her to allay her suspicions about the 

source of the transfer, not that he knew Smith was a real person.

11 Biyiklioglu also summarily argues that counts 17–20 should be reversed because 

“[t]he identity victims were total strangers to the defendant. The victims and defendant 

testified that they did not know each other,” and the evidence was therefore “insufficient to 

find that the defendant knew the victims were actual people.” Assuming, arguendo, that this 

argument is not too conclusory to preserve his challenge on appeal, the evidence at trial was 

sufficient for the jury to conclude that Biyiklioglu knew that the victims in counts 17–20 were 

actual people. All four of those victims testified that they had worked at a restaurant that 

Biyiklioglu admitted frequenting, one of them recognized him and had waited on him, and 

Biyiklioglu submitted to PayPal the correct social security numbers of at least three of the 

four victims. We affirm Biyiklioglu’s conviction as to counts 17–20.

Biyiklioglu does not challenge his conviction for count 15, for which he admits knowing 

the victim.

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Counts 21 and 22 alleged tax evasion for the years 2010 and 2011, 

respectively, in violation of 26 U.S.C. § 7201. To convict Biyikligolu of tax 

evasion under § 7201, the government was required to prove: (1) the existence 

of a tax deficiency; (2) an affirmative act constituting an evasion or an 

attempted evasion of the tax; and (3) willfulness. United States v. Miller, 588 

F.3d 897, 907 (5th Cir. 2009). Biyiklioglu challenges the sufficiency of the 

evidence as to the first two elements.

First, Biyiklioglu argues that the government failed to establish that he 

had substantial tax due in 2010 and 2011 because the government’s witness 

“testified that her calculations were preliminary, premature, and did not 

include any cash transactions,” and that “without auditing the defendant, 

I.R.S. would not be able to determine cash transactions, correct amount of 

credits and deductions the defendant was entitled to.”

The evidence at trial amply proved the existence of a tax deficiency. 

Internal Revenue Service (IRS) agent Denise O’Grady, who was certified 

without objection as an expert in the computation of federal income taxes,

testified that she examined more than seventy-four bank accounts held by 

Biyiklioglu during 2010 and 2011. She classified as income only the ACH 

reversals that doubled Biyiklioglu’s money. O’Grady treated funds that were 

seized, frozen, or returned to PayPal as refunds that were not included as 

income. She also deducted $3,400 based on the single deposit that was 

consistent with the sale of merchandise, although she concluded that “[t]here 

was no indication [that any of the bank transactions] were related to any type 

of jewelry business.”12 After applying standard deductions and making further 

assumptions that minimized Biyiklioglu’s tax liability, O’Grady calculated tax 

 

12 Biyiklioglu testified that he earned income by buying and selling jewelry and gold.

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liabilities of $17,377 for 2010 and $39,023 for 2011. It is undisputed that 

Biyiklioglu did not file income tax returns in 2010 or 2011.

The testimony on which Biyiklioglu relies does not undermine this

evidence of a tax liability. O’Grady testified on cross-examination that the 

documents she had examined would not reflect any cash transactions that did 

not go through a bank, but explained that if Biyiklioglu were engaging in such 

transactions as part of a business, both business expenses and income would 

be underreported in her calculations. She agreed that her report was 

“preliminary” and subject to revision to the extent that she lacked access to 

additional documentation. However, in light of O’Grady’s conservative 

approach to the calculations and the size of the tax liabilities, the possibility of 

small adjustments to the amount of tax owed does not call into question 

whether Biyiklioglu owed taxes for 2010 and 2011. See United States v. Bishop, 

264 F.3d 535, 550 (5th Cir. 2001) (“The government must demonstrate the 

existence of a deficiency beyond a reasonable doubt, but need not prove the 

extent of the deficiency with mathematical certainty.”); United States v. Parr, 

509 F.2d 1381, 1385–86 (5th Cir. 1975) (“The government need not prove the 

exact income alleged in the indictment nor evasion of the entire tax charged, 

so long as it is shown that a substantial portion of tax was evaded.”) (footnotes 

omitted) (explaining that any error in the calculation of tax liability was 

irrelevant where the government had proven a substantial tax liability). 

Accordingly, the government established the existence of a tax deficiency.

Biyiklioglu also argues that the government did not prove the second 

element required for a conviction under § 7201, an affirmative act constituting 

an evasion or attempted evasion of tax. The indictment identifies his 

“affirmative acts of evasion” as “concealing and attempting to conceal from all 

proper officers of the United States of America his true and correct income, 

opening multiple bank accounts, opening and using PayPal accounts in other 

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people’s names, and forming Big Stake Investments LLC and opening bank 

accounts in its name.” Biyiklioglu argues that: (1) he did not file any tax 

returns or make false reports of any kind so as to affirmatively conceal his 

income; (2) the bank accounts were opened using his name and social security 

number, and the fact that there were multiple accounts did not result in 

greater secrecy; (3) opening and using PayPal accounts in other people’s names 

did not conceal income because all of the transfers occurred between PayPal 

and Biyiklioglu’s bank accounts and could be easily traced by reviewing his 

bank statements; and (4) Big Stake Investments and all of the bank accounts 

opened for it were opened with Biyiklioglu’s name and social security number, 

so there was no increase in secrecy.

“The mere failure to pay a tax voluntarily when due, even if willful, does 

not establish a criminal attempt to evade.” United States v. Nolen, 472 F.3d 

362, 379 (5th Cir. 2006). “Affirmative acts that satisfy the second element [of 

§ 7201] may include keeping double sets of books, concealment of assets, or 

‘any conduct, the likely effect of which would be to mislead or to conceal.’” 

Miller, 588 F.3d at 907 (quoting Spies v. United States, 317 U.S. 492, 499 

(1943)). “If the tax-evasion motive plays any part in such conduct the offense 

may be made out even though the conduct may also serve other purposes such 

as concealment of other crime.” Spies, 317 U.S. at 499.

The evidence at trial proved that Biyiklioglu created numerous bank 

accounts and structured elaborate transactions to defraud PayPal and to 

conceal his fraud from PayPal and the banks. The government, relying on this 

evidence, conclusorily argues that “[t]he evidence sufficiently established the 

affirmative acts supporting [Biyiklioglu’s] conviction” for tax evasion. 

However, the government has not identified any evidence suggesting that a 

motive to evade taxes contributed to this deception, nor does the court’s own 

review of the trial record reveal any such motive. Indeed, the government fails 

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even to argue that Biyiklioglu was motivated by a desire to evade taxes. In 

United States v. Jones, we held that a defendant’s “placing money on circuitous 

paths of cashier’s checks and funneling it into a house purchased through a 

convoluted scheme designed to put it out of reach” was sufficient to support his 

conviction for tax evasion. 459 F. App’x 379, 384 (5th Cir. 2012). Jones, 

however, took these actions “while his tax file was in active collection,” and the 

evidence supported the government’s contention that the only conceivable 

reason for his conversion of fees into cashier’s checks—which Jones failed to 

report in his financial statement to the IRS—was to evade taxes. Id. Here, in 

contrast, the obvious explanation for Biyiklioglu’s complex and circuitous 

transactions was the perpetuation of his fraud, and there is no evidence that 

he took any action for the purpose of evading tax liability. Accordingly, we 

reverse Biyiklioglu’s conviction for tax evasion as to counts 21 and 22.

D.

Counts 23–41 alleged money laundering under three different statutory 

provisions. Counts 23–26 alleged that Biyiklioglu engaged in monetary 

transactions involving criminally derived property of a value greater than 

$10,000, namely, the purchases of three motorcycles and a jet ski, in violation 

of 18 U.S.C. § 1957. Counts 27–39 alleged that he transferred wire fraud 

proceeds in transactions designed to conceal and disguise the nature, location, 

source, ownership, and control of the funds, in violation of 18 U.S.C. 

§ 1956(a)(1)(B)(i). Counts 40 and 41 alleged that he transmitted wire fraud 

proceeds to Turkey in violation of 18 U.S.C. § 1956(a)(2)(B)(i). Biyiklioglu 

challenges the sufficiency of the evidence as to all but two counts of money 

laundering.13

 

13 Biyiklioglu does not challenge his conviction under § 1957 as to counts 24 and 25, 

and his conviction is affirmed as to those counts.

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Biyiklioglu argues that his conviction under § 1957 in counts 23 and 26 

must be reversed because, among other reasons, “the government failed to 

prove that there was a wire fraud and interstate wires were used in the 

furtherance of the crime.” “To prove the money laundering count under § 1957, 

the government had to prove that [Biyiklioglu] knowingly engaged in a 

monetary transaction in criminally derived property of a value greater than 

$10,000 and that the property was derived from specified unlawful activity.” 

United States v. Freeman, 434 F.3d 369, 377 (5th Cir. 2005); 18 U.S.C. § 1957(a) 

(“Whoever . . . knowingly engages or attempts to engage in a monetary 

transaction in criminally derived property of a value greater than $10,000 and 

is derived from specified unlawful activity, shall be punished as provided in 

subsection (b).”); see also 18 U.S.C. §§ 1957(f)(3), 1956(c)(7)(A), 1961(1) 

(defining “specified unlawful activity” as used in § 1957 to include wire fraud). 

The government responds only that the evidence was sufficient to convict 

Biyiklioglu of wire fraud. However, as explained above, the government did 

not prove the requisite interstate nexus as to twelve counts of wire fraud

because, and there is no evidence that the transactions in counts 23 and 26 

involved funds associated with the sole surviving wire fraud count. 

Accordingly, the government has not proven that the transactions in counts 23 

and 26 involved the proceeds of a specified unlawful activity. We therefore 

reverse Biyiklioglu’s conviction for money laundering in counts 23 and 26.

Biyiklioglu challenges his conviction under § 1956(a)(1)(B)(i) in counts 

27–39 and under § 1956(a)(2)(B)(i) in counts 40 and 41, arguing that the 

government failed to prove that the transactions were designed to conceal 

unlawful activity. See United States v. Bieganowski, 313 F.3d 264, 279 (5th 

Cir. 2002) (“The offense of money laundering under section 1956(a)(1)(B)(i), 

requires that the government prove that the defendant: (1) conducted or 

attempted to conduct a financial transaction, (2) that the defendant knew 

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involved the proceeds of unlawful activity, and (3) that the defendant knew 

was designed to conceal or disguise the nature, location, source, ownership, or 

control of the proceeds of the unlawful activity. An offense under section 

1956(a)(2)(B)(i) is almost identical, with the exception that the transaction in 

question must be from a place in the United States to a place outside the 

United States.”) (citations omitted). Determining whether specific intent to 

commit money laundering has been proven is a fact-bound inquiry that 

frequently turns upon circumstantial evidence. United States v. Trejo, 610 

F.3d 308, 315 (5th Cir. 2010).

The evidence at trial was sufficient for the jury to conclude that 

Biyiklioglu structured his transactions to conceal the proceeds of his 

fraudulent scheme. Biyiklioglu engaged in various circuitous transactions 

between his numerous bank accounts, often on the same day, that served no 

apparent purpose other than to disguise the source of the money. For example, 

on February 2, 2012, Biyiklioglu made two separate deposits of $15,000 each 

into one of his Bank of America accounts, then made two transfers of $15,000 

each from that account into a Chase account, then made two transfers of 

$15,000 each from that Chase account into a different Chase account, and then 

withdrew $25,000 of that money from the second Chase account in two 

separate cash withdrawals.14 Cf. United States v. Willey, 57 F.3d 1374, 1386 

(5th Cir. 1995) (“Moving money through a large number of accounts has, in the 

light of other evidence, also been found to support the design element of this 

 

14 Biyiklioglu argues that his purpose in these transactions was merely to access his 

cash at a local bank branch because Bank of America did not have a branch in New Orleans. 

However, this explanation does not account for the serial transfers first to one Chase account 

and then to another. Moreover, to the extent that Biyiklioglu offered an alternative 

explanation for the transfers, the jury was not obligated to believe him. Cf. United States v. 

Rodriguez, 278 F.3d 486, 491 (5th Cir. 2002) (affirming money laundering conviction where 

“the jury was free to discredit Rodriguez’s explanation of the source of the funds and did so.”).

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offense, even when all the accounts to which the defendant transferred the 

money and from which he withdrew it were in his own name.”). Biyiklioglu 

also told a bank representative that he would receive automatic deposits from 

PayPal into certain accounts but did not want PayPal to have access to the

accounts in any way or to be able to see his balances. Moreover, shortly after 

some of his accounts were frozen, Biyiklioglu formed a business organization 

with no recorded business activity, in which Biyiklioglu was the only member, 

and used it to open additional bank accounts to further his fraudulent scheme. 

In total, Biyiklioglu used at least seventy-four bank accounts while engaged in 

his scheme.

Biyiklioglu argues that the charged transactions did not conceal his 

ownership of the money because each transaction was an ordinary, 

straightforward banking transaction. However, “in order to establish the 

design element of money laundering, it is not necessary to prove with regard 

to any single transaction that the defendant removed all trace of his 

involvement with the money or that the particular transaction charged is itself 

highly unusual.” Willey, 57 F.3d at 1386. “That is, it is not necessary that a 

transaction be examined wholly in isolation if the evidence tends to show that 

it is part of a larger scheme that is designed to conceal illegal proceeds.” Id.; 

accord United States v. Rodriguez, 278 F.3d 486, 491 (5th Cir. 2002). Here, the 

government produced ample evidence from which the jury could conclude that 

Biyiklioglu intended to conceal the fraudulent source of his funds through the 

transactions in counts 27–41. Accordingly, we affirm Biyiklioglu’s conviction

as to counts 27–41.

IV.

Biyiklioglu argues that the district court violated Federal Rule of 

Evidence 404(b) when it admitted government exhibit 4.2, a summary of 

Biyiklioglu’s fraudulent scheme that referenced twenty-two PayPal accounts 

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not included in the indictment. Rule 404(b) provides that “[e]vidence of a 

crime, wrong, or other act is not admissible to prove a person’s character in 

order to show that on a particular occasion the person acted in accordance with 

the character,” but such evidence “may be admissible for another purpose, such 

as proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).

During the trial, Biyiklioglu’s counsel objected “to any PayPal record 

other than the PayPal records of the witnesses who have testified up to this 

point,” and upon admission of exhibit 4.2, objected “to the base information 

which . . . resulted in this summary.” Biyiklioglu did not cite to any evidentiary 

rule, and the district court reasonably construed the objection as going to the 

relevance of the evidence. “To preserve error, an evidentiary objection must 

‘state[] the specific ground, unless it was apparent from the context.’ . . . A 

loosely formulated and imprecise objection will not preserve error.” United 

States v. Lewis, 796 F.3d 543, 545–46 (5th Cir. 2015) (quoting Fed. R. Evid. 

103(a)(1)(B)). Because Biyiklioglu’s general objection did not apprise the 

district court that he objected under Rule 404(b), we review his evidentiary 

challenge for plain error. See id. at 546 (“We conclude that Lewis failed to fully 

apprise the court of the grounds of his objection or to alert it to the proper 

course of action. Accordingly, this error was unpreserved, and plain error 

review applies.”).

To establish plain error, Biyiklioglu must show that: (1) the district court 

erred, (2) the error was clear or obvious, (3) the error affected his substantial 

rights, and (4) this court should exercise its discretion to correct the error 

because the error seriously affects the fairness, integrity, or public reputation 

of judicial proceedings. Id.; Puckett v. United States, 556 U.S. 129, 135 (2009).

Biyiklioglu has not established that the district court erred, much less 

that any error was plain. Rule 404(b) does not govern evidence that is

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“intrinsic” to the offense charged. Freeman, 434 F.3d at 374. “Evidence of acts 

other than conduct related to the offense is intrinsic when the evidence of the 

other act and the evidence of the crime charged are inextricably intertwined or 

both acts are part of a single criminal episode or the other acts were necessary 

preliminaries to the crime charged.” Id. (internal quotation marks and citation 

omitted). The PayPal investigator who compiled the government’s exhibit 4.2 

testified that he had reviewed all of the represented PayPal accounts, along 

with related bank records, and identified a consistent fraudulent pattern 

whereby Biyiklioglu transferred money from one bank account into the PayPal 

account, sent it to a second bank account, and then disputed the original 

transaction, resulting in a refund to the first bank account and a loss to PayPal. 

This testimony was corroborated by several other witnesses. The uncharged 

PayPal accounts with their respective losses and transfers were therefore 

inextricably intertwined with the transactions charged in the indictment as 

part of a single fraudulent scheme and were admissible as intrinsic evidence 

not subject to Rule 404(b).

However, even assuming, arguendo, that the uncharged PayPal accounts 

were extrinsic evidence, the district court still did not err in admitting exhibit 

4.2. Rule 404(b) allows the admission of extrinsic evidence for a purpose other 

than proving the person’s character, “such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of 

accident.” Fed. R. Evid. 404(b). Here, evidence concerning a large number of 

PayPal accounts that were associated with Biyiklioglu’s bank accounts and fit 

the same loss pattern as the PayPal accounts in the indictment was highly 

probative of Biyiklioglu’s intent, knowledge, motive, and plan regarding the 

wire fraud scheme alleged in the indictment. See United States v. Cooks, 589 

F.3d 173, 182 (5th Cir. 2009) (affirming admission in fraud case of five 

uncharged transactions, four of which “were materially indistinguishable from 

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the charged schemes,” and explaining that “extrinsic evidence of using the 

same scheme repeatedly is relevant to intent, knowledge, motive and plan”). 

Accordingly, Biyiklioglu has not demonstrated that the district court plainly 

erred by admitting government exhibit 4.2.

V.

Biyiklioglu challenges the district court’s jury instructions relating to the 

wire fraud charges.15 Because Biyiklioglu did not object to the jury 

instructions before the district court, we review his challenges for plain error. 

See United States v. Harris, 740 F.3d 956, 965 (5th Cir. 2014). As discussed 

above, this requires Biyiklioglu to show an error that is plain and that affected 

his substantial rights, and also that we should exercise our discretion to correct 

the error because the error seriously affects the fairness, integrity, or public 

reputation of judicial proceedings. Id. at 965–66.

Biyiklioglu first argues that the district court erred when it instructed 

the jury that “[a] specific intent to defraud means a conscious, knowing intent 

to deceive or cheat someone” because the word “deceive” did not require the 

jury to find that Biyiklioglu acted for the purpose of obtaining financial gain. 

The district court’s instruction defining “specific intent to defraud” followed the 

Fifth Circuit pattern jury instruction verbatim. See Pattern Crim. Jury Instr. 

5th Cir. 2.57. Moreover, the instruction is consistent with our precedent. See 

United States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002) (“A conviction for 

wire fraud requires proof of the specific intent to defraud or deceive.”). 

Accordingly, the district court did not err in its definition of “specific intent to 

defraud” when instructing the jury on the elements of wire fraud.

 

15 Biyiklioglu also challenges the jury instructions on tax evasion, but those challenges 

are moot because we reverse Biyiklioglu’s conviction for both counts of tax evasion. 

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Biyiklioglu also argues that the district court constructively amended 

the indictment by instructing the jury that to convict Biyiklioglu of wire fraud, 

the jury must find that he “knowingly devised or intended to devise any scheme 

to defraud.” (emphasis added). Biyiklioglu’s argument is premised on the 

assertion that the jury heard evidence about eight separate PayPal schemes

involving eight separate victims, including one scheme that was described in 

the indictment but was not charged because the government dropped the 

aggravated identity theft charge related to that scheme’s victim. Biyiklioglu 

argues that the jury could have convicted him on the wire fraud counts based 

on this uncharged scheme to defraud PayPal as to the one victim who did not 

testify. His argument fails, however, because the indictment alleged not eight 

distinct schemes, but rather an overarching fraudulent scheme to defraud 

PayPal by creating false accounts, including the eight described in the 

indictment. Biyiklioglu therefore was not convicted of a separate crime from 

the one for which he was indicted. See United States v. Jara-Favela, 686 F.3d 

289, 300 (5th Cir. 2012) (“We ‘scrutinize any difference between an indictment 

and a jury instruction’ and ‘will reverse only if that difference allows the 

defendant to be convicted of a separate crime from the one for which he was 

indicted.’”) (quoting United States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999)). 

Biyiklioglu has not established that the district court’s jury instructions were 

erroneous, much less that there was any plain error.

VI.

Biyiklioglu argues that if we reverse some but not all of his counts of 

conviction, we will need to determine “if prejudicial spillover from evidence 

introduced in support of the reversed counts requires the remaining 

convictions to be upset.” Biyiklioglu relies exclusively on United States v. 

Edwards, in which we addressed a similar claim for the first time. 303 F.3d 

606, 639 (5th Cir. 2002) (“This circuit has never addressed whether spillover 

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from invalid claims can be a basis for granting a new trial.”). In Edwards, we 

concluded: 

While we are willing to acknowledge that perhaps a grant of a new 

trial might be appropriate in some cases of “retroactive 

misjoinder,” that case is not before us. At a minimum, drawing 

from our severance cases and authority from other circuits, the 

defendants must show that they experienced some prejudice as a 

result of the joinder of the invalid claims, i.e., that otherwise 

inadmissible evidence was admitted to prove the invalid fraud 

claims. They have not, and cannot do so [because the challenged 

evidence was relevant to other counts and admissible on other 

theories].

Id. at 640. In Edwards, the “invalid” claims had been dismissed because they 

were based on a legal theory rejected by the Supreme Court. Id. at 612, 638–

39. Here, in contrast, Biyiklioglu has not even argued, much less established, 

that any charged count was legally “invalid” in this way, but rather merely 

that the government failed to prove all of the elements of some of the charged 

offenses. Accordingly, Edwards is inapposite and Biyiklioglu’s “spillover” 

argument fails.

VII.

For the foregoing reasons, we REVERSE Biyiklioglu’s conviction as to 

counts 1–9, 11–14, 21–23, and 26 of the indictment, and we AFFIRM his 

conviction as to counts 10, 15, 17–20, 24, 25, and 27–41. Because the sentences 

imposed on these counts were intertwined, we VACATE Biyiklioglu’s sentence 

and REMAND for resentencing on the affirmed counts of conviction.16

 

16 See United States v. Dupaquier, 74 F.3d 615, 619 (5th Cir. 1996) (reversing 

conviction as to one count and vacating sentence and remanding for resentencing on two 

remaining counts “[b]ecause the sentences imposed by the district court on the three counts 

were intertwined”). Because we vacate Biyiklioglu’s sentence in its entirety, we do not reach 

Biyiklioglu’s challenges to the sentencing enhancements applied by the district court.

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