FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 2, 2012

JOHN LEY

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-10852

________________________

D.C. Docket No. 1:08-cr-00044-SPM-AK-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH T. LANDER,

a.k.a. Joey Lander,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(February 2, 2012)

Before WILSON and COX, Circuit Judges, and RESTANI, Judge. *

PER CURIAM:

Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by *

designation.
A jury convicted Joseph T. Lander on mail fraud and money laundering

charges related to two separate fraudulent schemes. One of these schemes

involved Lander’s conversion of funds developers gave him to hold in trust for

future expenses associated with their River Shores at Jena development (the

“River Shores Scheme”). In the other scheme, Lander convinced one of his

victims to make a significant investment in a vitamin company he was starting

called GenSpec Labs, LLC by misrepresenting the expected return on this

investment and the viability of the company (the “GenSpec Scheme”). The

superseding indictment alleged that Lander executed these schemes using the mail

and engaged in monetary transactions with the money he derived from the River

Shores Scheme. The jury convicted Lander on sixteen of the twenty-one counts in

the superseding indictment. Lander now appeals, challenging his convictions and

sentences on various grounds. 

We conclude that the proof presented at trial in connection with the River

Shores mail fraud count (Count Two) materially varied from the allegations

contained in the superseding indictment. This variance substantially prejudiced

Lander and we reverse his conviction on this count. We also reverse his money

laundering convictions (Counts Four through Fourteen) because they were

predicated on the River Shores mail fraud count. We affirm Lander’s mail fraud

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convictions related to the GenSpec Scheme. And, we decide Lander’s other

assertions of error lack merit. 

I. FACTS AND PROCEDURAL HISTORY

A. FACTS

Lander worked as an attorney in Dixie County, Florida. There, he practiced

law and served as the county attorney. Lander’s business dealings extended 1

beyond his legal work, however. He also tried to start and was the majority owner

of a vitamin company called GenSpec Labs, LLC (“GenSpec”).

1. River Shores Scheme

The nature of this scheme demonstrates the blurry line between Lander’s

private practice and his work as county attorney in this case. A group of real

estate developers planning a project called River Shores at Jena (“River Shores”)

in Dixie County retained Lander to help guide their project through the county’s

regulatory process. When they initially met Lander they did not know he was the

county attorney, but they quickly became aware of this fact through their meetings

with him. In order to “give a level of security to the prospective buyers that [the

developers] would finish the development,” (Dkt. 190 at 96), the developers gave

Because Lander challenges the sufficiency of the evidence to support his convictions, we 1

state the facts in the light most favorable to the Government. United States v. Ward, 197 F.3d 1076,

1079 (11th Cir. 1999) (citations omitted).

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Lander $820,000 in August of 2005 to be held in trust to draw against as the

developers incurred infrastructure expenses.

Lander then opened an account called the “Lander Law Firm – Special

Account” to hold the developers’ funds. But, not all of these funds helped

complete River Shores. For example, Lander made a $140,980 withdrawal from

the account to buy an island off the western coast of Florida. He also used the

money for various other personal expenses. These personal withdrawals

continued until December of 2007 when Lander depleted and closed the account.

While Lander was making personal draws on the account, he also fulfilled

two of the requests from the developers for money from the account. Lander

mailed a $200,000 cashier’s check drawn from the account on August 17, 2005. 

In early 2006, Lander fulfilled another request for $300,000. According to one of

the developers, he did not question that Lander still held the other $320,000

because Lander remitted these two requests in a timely manner. When the

developers made a third request for funds, Lander denied it and informed them

that the county commissioners were not comfortable with the project and the rest

of the money would be released when they finished the project.

2. GenSpec Scheme

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In the summer of 2005, Lander was also busy soliciting investors for a

business venture he called GenSpec. According to Lander, GenSpec marketed

vitamins for specific racial and ethnic groups and “it was the hottest thing on the

market.” (Dkt. 191 at 50.) He told potential investors he already had contracts

with various major retail outlets to sell the vitamins and promised a quick return

on investment. In fact, Lander had not secured these contracts and did not pay the

promised dividends. 

One of GenSpec’s investors was Kathy Veach. Lander sought a $1 million

buy in from Veach in exchange for a 1.5% share of GenSpec. He convinced Ms.

Veach to meet part of this obligation by providing a $127,745.90 cashier’s check

so that Lander could buy a Maserati automobile. Because Veach did not have

enough money to pay the buy in, Lander also told her that an individual named

Henry Fred “Mitch” Mitchell would lend her $500,000. Veach agreed to this loan

and gave Lander $50,000 as payment for the loan origination fee. She then began

mailing installment payments of $4,166.67 to Mitchell. Much like the promised

GenSpec dividends, this loan was illusory. Mitchell never agreed to loan

$500,000 to Veach. Rather, Mitchell acknowledged that Lander owed him money,

so he applied part of Veach’s payments to this debt and then remitted the rest to

Lander.

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B. PROCEDURAL HISTORY

1. The Indictment

The grand jury returned a twenty-one count superseding indictment against

Lander. Sixteen of those counts concern us here. Count Two of the indictment

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relates to the River Shores Scheme and is explained more fully below. Counts

Four through Fourteen charge Lander with money laundering by engaging in a

monetary transaction in property of a value greater than $10,000 derived from mail

fraud, in violation of 18 U.S.C. § 1957. These counts are based on various

withdrawals Lander made from the Lander Law Firm – Special Account. Counts

Fifteen through Nineteen also charge mail fraud in violation of 18 U.S.C. §§ 1341

and 1342 in connection with Lander’s GenSpec Scheme. Specifically, the

indictment alleges that Lander used his position of trust as an attorney to convince

people to invest in this business. It alleges that Lander falsely told potential

investors he had contracts with major retail stores to sell GenSpec products and

that a quick investment was needed to ensure that the individuals received

dividends. Finally, it contends Lander used the mail to execute this scheme. 

The jury returned a verdict of not guilty on Count One (mail fraud). The district court 2

granted a judgment of acquittal on Count Three (mail fraud) and Count Nineteen (principal to mail

fraud). The Government dismissed Count Twenty (wire fraud) and Count Twenty-one (making a

false statement to an FDIC bank). 

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2. Motions for Judgment of Acquittal

Near the close of the Government’s case in chief, Lander moved the court

for a judgment of acquittal. Lander argued that there was insufficient evidence to

support the counts against him. He renewed this motion at the close of the

Government’s case. The court granted the motion as to Counts Three and

Nineteen because it found that there was no mailing to support these two mail

fraud counts. After the jury returned its verdict, Lander again moved the court for

a judgment of acquittal. This motion asserted that the Government’s evidence did

not prove any scheme to defraud so he should be acquitted of the mail fraud and

the accompanying money laundering counts. The motion also claimed that the

Government had constructively amended the indictment by presenting at trial a

scheme to defraud different from the one alleged in the indictment. The court

denied this motion. 

3. Sentencing

After a five-day trial, the jury convicted Lander on sixteen counts. The

presentence investigation report established a guideline imprisonment range of

seventy to eighty-seven months. The court sentenced Lander to an eighty-seven

month term of imprisonment as to each count, to run concurrently.

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II. ISSUES ON APPEAL

Lander raises the following issues on appeal: (1) whether a constructive

amendment to or material variance from the superseding indictment occurred; and

(2) whether the court erred by denying his motion for judgment of acquittal

because the evidence does not support any of his convictions.3

III. DISCUSSION

A. MATERIAL VARIANCE

Lander argues before this court, as he did in his Motion for Judgment of

Acquittal, that the facts proved at trial to support the River Shores mail fraud

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charge (Count Two) materially varied from the allegations of the superseding

indictment. According to Lander, this variance substantially prejudiced his rights

and his conviction on this count should be reversed. We agree. 

Lander also raises other issues on appeal: (1) whether the court erred by denying his 3

second motion for a mistrial; (2) whether the court erred by denying his motion to dismiss the

indictment due to grand jury bias; and (3) whether the court erred by denying his emergency motion

to continue. We reject Lander’s arguments on these issues and none of them warrant further

discussion. Also, because we reverse twelve of the sixteen counts of conviction and remand for

resentencing, we will not address Lander’s challenge to his current sentence.

Lander’s Motion for Judgment of Acquittal stated, “Instead of arguing the information 4

contained in the indictment, the Government presented evidence that they believed constituted an

alternative scheme to defraud which went well beyond the four corners of the indictment,

constituting a constructive amendment to the indictment.” (Dkt. 127 at 16.) While Lander labeled

this a constructive amendment, we understand this contention as arguing a material variance. When

the district court denied Lander’s motion, it too understood Lander as having made a material

variance argument. Thus, we have no trouble concluding that Lander preserved this issue for appeal. 

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Count Two of the indictment alleges that Lander

did knowingly and willfully devise and intend to devise a scheme to

defraud and to fraudulently deprive another of the intangible right of

his honest services as County Attorney for Dixie County, Florida, and

to obtain money and property and by means of material false and

fraudulent pretenses, representations and promises, and for the

purpose of executing this scheme to defraud, and attempting to do so,

did knowingly cause matters to be deposited with and delivered by

the United States Postal Service

in violation of 18 U.S.C. §§ 1341 and 1346. (Dkt. 66 at 1-3.) 

The indictment continues by describing this scheme to defraud. It states

that Lander in his capacity as county attorney falsely represented to developers

that they were required to pay a performance bond to Dixie County through him as

county attorney. According to the indictment, Lander then opened the “Lander

Law Firm – Special Account”; deposited $820,000 as payment for the

performance bond in the account; concealed the fact he deposited the money into

his own law firm account by causing cashier’s checks to be issued from the

account; and converted $320,000 of the fraudulently obtained funds. By this

conduct, the indictment alleges that Lander deprived the citizens of Dixie County

of their right to honest services. 

“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,

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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) (citing United States v. Prince, 883 F.2d 953, 959 (11th Cir.

1989)). We have called an allegation of a variance in essence “one form of

challenge to the sufficiency of the evidence.” United States v. Jenkins, 779 F.2d

606, 616 (11th Cir. 1986). “A ‘variance’ occurs when the evidence at trial

establishes facts materially different from those alleged in the indictment.” United

States v. Caporale, 806 F.2d 1487, 1499 (11th Cir. 1986) (citing United States v.

Johnson, 713 F.2d 633, 643 n.9 (11th Cir. 1983)). To find substantial prejudice,

we have ordinarily considered 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) (citations omitted).

The Government concedes that the only possible basis for conviction on

Count Two of the indictment is pecuniary mail fraud under 18 U.S.C. § 1341.

5

(Appellee’s Br. at 36 n.3.) To prove that Lander committed mail fraud, the

The Government argues that Count Two of the superseding indictment alleged honest 5

services fraud and pecuniary fraud. According to the Government, this gave it a choice at trial to

prove only a pecuniary fraud scheme and the jury could properly convict on this basis. This

argument fails to address Lander’s claim that the allegations of the indictment materiallyvaried from

the proof at trial. 

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Government had to show that he “(1) intentionally participated in a scheme to

defraud; and (2) used the mails to further that scheme.” United States v. Brown,

40 F.3d 1218, 1221 (11th Cir. 1994) (citing 18 U.S.C. § 1341; United States v.

Wingate, 997 F.2d 1429, 1432 (11th Cir. 1993)). “A scheme to defraud requires

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

fact calculated to deceive another out of money or property.” United States v.

Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009) (citing United States v. Svete, 556

F.3d 1157, 1161, 1169 (11th Cir. 2009) (en banc)). The indictment met this

requirement for a material misrepresentation by alleging that Lander “falsely

represented to certain developers having business before Dixie County that the

developers were required to pay a performance bond to Dixie County.” (Dkt. 66 at

2.) We agree with Lander that this allegation in the indictment materially varies

from the proof at trial. 

In fact, the evidence at trial, even when considered in the light most

favorable to the Government, disproved that Lander made this misrepresentation. 

For example, when one of the developers was asked whether Lander ever

represented to them that Dixie County required a performance bond, he responded: 

“Not that I recall.” (Dkt. 189 at 146-47.) Another one of the developers stated

that Lander never told her that the developers needed to post a performance bond. 

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And, the Government points to no place in the record where the evidence at trial

supports the charge that Lander misrepresented to the River Shores developers that

they needed to post a performance bond. Without this misrepresentation to

support the River Shores scheme to defraud, the Government shifted its trial

strategy. During its closing argument, it appeared to rely on Lander’s

representations to the developers that he could make sure their project moved

through the regulatory process. At oral argument before this court, the

Government suggested the misrepresentation occurred when Lander said he would

hold the $820,000 in trust for development expenses. In either case, the

misrepresentation the Government relies on does not coincide with the allegations

of the indictment. The scheme to defraud is an essential element of the mail fraud

charge. Thus, we conclude there was a material variance from the indictment.

Next, we must decide whether this variance substantially prejudiced Lander. 

We hold that it did. As our precedent explains, the rationale behind the material

variance rule is that the accused be informed of the charges against him and that

he not be surprised by the evidence offered at trial. Thompson v. Nagle, 118 F.3d

1442, 1453 (11th Cir. 1997) (citing Berger v. United States, 295 U.S. 78, 82, 55 S.

Ct. 629, 630 (1935)). This justification is grounded in the fundamental

requirement that an indictment “apprise[] the defendant of what he must be

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prepared to meet.” Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038,

1047 (1962) (citations omitted) (quotation marks omitted). 

The Government tries to rely on a scheme to defraud entirely different from

the one alleged in the indictment to support Lander’s River Shores mail fraud

conviction. But, any misrepresentation the jury may have reasonably relied upon

to support its conviction on Count Two differed from the misrepresentation

charged in the indictment. As such, the indictment failed to put Lander on notice

of the crime for which he was convicted—Lander could not prepare a defense to a

scheme to defraud that does not appear in the indictment.

We decide that any proof the Government may have offered at trial to

support the jury’s verdict on Count Two varied so greatly from the allegations of

the indictment that Lander was unable to prepare his defense. When a material

variance substantially prejudices the defendant as it does here, this variance

constitutes reversible error. See United States v. Narog, 372 F.3d 1243, 1247

(11th Cir. 2004). Therefore, we reverse Lander’s conviction on Count Two.

B. SUFFICIENCY OF THE EVIDENCE

Lander challenges the sufficiency of the evidence on all counts. We review

de novo the district court’s denial of a judgment of acquittal on sufficiency of the

evidence grounds. United States v. Yates, 438 F.3d 1307, 1311-12 (11th Cir.

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2006) (en banc) (citing United States v. Pistone, 177 F.3d 957, 958 (11th Cir.

1999)). We view the evidence in the light most favorable to the Government and

resolve any conflicts in the evidence in favor of the Government. United States v.

Ward, 197 F.3d 1076, 1079 (11th Cir. 1999) (citations omitted). “[T]he evidence

is sufficient to support a conviction if ‘a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt.’” United States v. Williams,

527 F.3d 1235, 1244 (11th Cir. 2008) (quoting United States v. Calhoon, 97 F.3d

518, 523 (11th Cir. 1996)).

1. Money Laundering Counts (Counts Four Through Fourteen)

Lander contends the evidence is insufficient to support his convictions for

money laundering in violation of 18 U.S.C. § 1957. A conviction under § 1957

requires proof that Lander “knowingly engaged or attempted to engage in a

monetary transaction in criminally derived property that is of value greater than

$10,000 and is derived from specified unlawful activity.” United States v.

Johnson, 440 F.3d 1286, 1289 (11th Cir. 2006) (citations omitted) (quotation

marks omitted). To satisfy the “specified unlawful activity” prong of the money

laundering charges, the Government relied on the mail fraud charge in Count Two

of the indictment. Because we reverse Lander’s conviction on Count Two, we

reverse Lander’s convictions on Counts Four through Fourteen as well. 

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2. GenSpec Mail Fraud (Counts Fifteen Through Eighteen)

Lander argues that the evidence did not establish that he committed mail

fraud in connection with the GenSpec Scheme. The offense of mail fraud consists

of “(1) an intentional participation in a scheme to defraud a person of money or

property, and (2) the use of the mails in furtherance of the scheme.” United States

v. Smith, 934 F.2d 270, 271 (11th Cir. 1991) (quoting United States v. Downs, 870

F.2d 613, 615 (11th Cir. 1989)). 

Lander asserts that the district court erred by denying his motion for

judgment of acquittal on these counts because the Government failed to prove

GenSpec was a fraudulent venture. We reject this argument. To prove mail fraud,

the Government did not have to establish that GenSpec itself was fraudulent. 

Rather, the Government had the burden to prove that Lander engaged in a scheme

to defraud GenSpec investors. The evidence was sufficient to prove Lander

intentionally tried to defraud GenSpec investors of money or property. 

The evidence at trial established that Lander misrepresented the prospects of

GenSpec by telling Veach that she would recover her investment within six

months. He also lied to her when he told her he already had lined up

endorsements and contracts with major distributors. After convincing Veach to

invest in GenSpec through misrepresentations like these, Lander made a

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fraudulent arrangement to help Veach pay a portion of the $1 million buy in

Lander demanded. Lander told Veach that a third party, Mitchell, would loan her

the money and convinced Veach to pay Lander a $50,000 loan origination fee and

then mail Mitchell checks to pay off her debt. Lander later admitted, and Mitchell

testified, that Mitchell never made a loan to Veach. Instead, Mitchell used a

portion of Veach’s payments to pay off a debt Lander owed Mitchell and then

remitted the balance to Lander. Based on this evidence we conclude a reasonable

jury could find that Lander intentionally devised a scheme to defraud and used the

mail in furtherance of that scheme. We affirm his convictions on these counts. 

IV. CONCLUSION

We conclude the material variance between the proof offered by the

Government at trial and the allegations in support of Count Two of the indictment

substantially prejudiced Lander’s ability to prepare his defense. Therefore, we

reverse Lander’s conviction and vacate his sentence on Count Two. The money

laundering charges in Counts Four through Fourteen depended on this mail fraud

conviction, so we reverse these convictions and vacate these sentences as well. 

We affirm Lander’s convictions on Counts Fifteen through Eighteen. And, we

reject Lander’s other assertions of error. During sentencing, the district court

considered all of the counts of conviction. Because we reverse his convictions on

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Counts Two and Four through Fourteen, we vacate Lander’s sentences on all

counts and remand for resentencing.6

AFFIRMED IN PART, REVERSED IN PART, VACATED AND

REMANDED IN PART.

During resentencing, the district court should recalculate the amount of loss in this case in 6

light of our reversal of Counts Two and Four through Fourteen.

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