[ DO NOT PUBLISH ] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No s . 12

- 12658 ; 12

- 12659

D.C. Docket No. 1:11

- cr - 20131

- RWG

- 1

UNITED STATES OF AMERICA , Plaintiff

- Appell ee ,
versus JONATHAN RANDALL CURSHEN, NATHAN BRADLEY MONTGOMERY , Defendant s - Appell ant s .

Appeal s from the United States District Court for the Southern District of Florida
(May 28, 2014) Case: 12-12658 Date Filed: 05/28/2014 Page: 1 of 52 Before HULL, COX and FARRIS, ∗ Circuit Judges

. PER CURIAM : Defendant s Jonathan Curshen and Nathan Montgomery appeal after a jury convicted them for crimes related to their illegal pump

- and

- dump stock manipulation scheme

. After review of the record and the briefs of the parties, and having t he benefit of oral argument , we affirm

. I. BACKGROUND Defendants Curshen and Montgomery participated with many others in a conspiracy to defraud the investing public through a pump

- and

- dump stock manipulation scheme involving shares of CO2 Tech Ltd.’s (“CO2 T ech”) stock. A pump and dump scheme involves artificially inflating the price and volume of an owned stock

— by promotional or trading activity

— to sell the stock at a higher price. Once the overvalued shares are dumped, the price and volume of shares plum met and unsuspecting investors lose their money. Defendants Curshen and Montgomery and their co

- conspirators perpetrated their pump - and

- dump stock manipulation scheme by issuing false and misleading press releases and other promotional materials and by coordinating the trading

∗ Honorable Jerome Farris , United States Circuit Judge for the Ninth Circuit , sitting by designation

. Case: 12-12658 Date Filed: 05/28/2014 Page: 2 of 53 activities of CO2 Tech

- stock sellers and buyers. Their scheme left unsuspecting investors holding worthless shares of CO2 Tech stock. The supers eding indictment charged defendant s Curshen and Montgomery with conspiracy to commit securities fraud, wire fraud, and mail fraud, in violation of 18 U.S.C. § 371 (Count 1). The indictment also charged defendant Curshen with two counts of mail fraud, in v iolation of 18 U.S.C. § 1341 (Counts 6 and 8), and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count 10). The indictment also charged seven other defendants. In addition, t he indictment sought forfeiture under 18 U.S.C. §§ 981 and 982. Only defendants Curshen and Montgomery proceeded to trial. 1 After an eleven

- day trial, a jury found both defendants guilty of all counts for which they were indicted

. Both defendants appeal.
II. DISCUSSION On appeal defendant Cur shen argues that the district court erred by (1) denying his motion to suppress without holding an evidentiary hearing; (2) failing to grant his third motion for a trial continuance; (3) imposing restitution; (4) admitting evidence in violation of Rule 40 4(b) of the Federal Rules

1 Four co

- conspirators pled guilty to the crimes alleged in the superseding indictment. Three co

- conspirators are fugitives.

Case: 12-12658 Date Filed: 05/28/2014 Page: 3 of 54 of Evidence (“Rules”) ; (5) admitting evidence in violation of Rule 902(11); (6) admitting evidence in violation of Rule 403; and ( 7 ) violating the Confrontation Clause. Defendant Curshen also argues that the district court ’s admi ssion of this allegedly inadmissible evidence amounted to cumulative error. On appeal defendant Montgomery argues that the district court erred by (1) failing to acquit him based on an allegedly material variance between the indictment and trial evidence; (2) admitting inadmissible opinion evidence; and (3) admitting evidence in violation of Ru le 404(b).
D efendant Curshen ’s and Montgomery’s argument s lack merit and warrant no further discussion except for their Rule 404(b) claims

. As to t he Rule 404(b) argument s , there is a question regarding whether the district court abused its discretion in admitting such evidence over the defendants’ objections

. 2 E ven assuming that t he district court abused its discretion, such error was harmless because the trial record provides overwhelming evidence of defendants’ fraud. See United States v. Khanani , 502 F.3d 1281, 1292 (11th Cir. 2007) (“Even if an evidentiary ruling is erroneous, that ruling will result in reversal only if the error was not harmless.” (quotation marks omitted)).

2 This Court reviews a district court’s evidentiary rulings for an abuse of discretion. United States v. Joseph , 709 F.3d 1082, 1093 (11th Cir. 2013), cert

. denied sub nom. , Green v. United States , 134 S. Ct. 1273 (2014).

Case: 12-12658 Date Filed: 05/28/2014 Page: 4 of 55 III. CONCLUSION For the for e going reasons, we affirm defendant Curshen’s and defendant Montgomery’s convictions and sentence s . AFFIRMED

. Case: 12-12658 Date Filed: 05/28/2014 Page: 5 of 5