[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-14540

________________________

D.C. Docket No. 1:12-cr-20901-WPD-2

UNITED STATES OF AMERICA,

 Plaintiff–Appellee,

versus

CRAIG STANLEY TOLL,

 Defendant–Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_______________________

(November 3, 2015)

Before WILLIAM PRYOR, JULIE CARNES, and SILER,

* Circuit Judges.

WILLIAM PRYOR, Circuit Judge: 

 

* Honorable Eugene E. Siler Jr., United States Circuit Judge for the Sixth Circuit, sitting by 

designation.

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This appeal requires us to decide whether the district court abused its 

discretion by allowing a lay witness to testify about the financial statements of the 

company that employed him as its controller and whether sufficient evidence 

supports Craig Toll’s ten convictions for participating, as chief financial officer of 

the same company, in schemes to defraud investors and the United States. The 

government presented evidence that Toll maintained two sets of financial 

statements and used one set to mislead investors and the United States. And the 

controller testified that, when the two sets of statements were prepared, he believed 

only the other set complied with Generally Accepted Accounting Principles. A jury 

convicted Toll of two counts of conspiracy to commit wire fraud, one count of 

conspiracy to engage in financial transactions with criminally derived property, 

three counts of wire fraud, one count of major fraud against the United States, and 

three counts of making false statements to a federal agency. The district court did 

not abuse its discretion by admitting the controller’s testimony, and the 

government presented sufficient evidence to convict Toll. We affirm.

I. BACKGROUND

Toll served as the chief financial officer of InnoVida. He had a master’s 

degree in business administration from the Wharton School of Business, and he 

had previously worked as an audit partner for a large accounting firm and as chief 

financial officer for a Fortune 500 company.

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InnoVida was a holding company for several subsidiary companies. It 

manufactured panels for rapidly built structures, and it marketed them as energy 

efficient. But InnoVida never earned significant revenues from selling these 

panels. It instead made most of its revenue by selling “factories in a box,” which 

were joint ventures to build factories to manufacture the panels.

Toll, with the help of others, prepared two sets of unaudited financial 

statements for InnoVida. The main difference between the statements was how the

sets recognized revenue from the factories in a box. And that difference meant that 

each set reported a major difference in profitability.

One set of statements recognized revenue on a deferred basis. That is, when 

InnoVida received revenue for a factory, it was offset with a liability that reflected 

the progress of construction on the factory. As construction of the factory 

progressed, more of the revenue was recorded as earned. This first set of 

statements reported that InnoVida was losing millions of dollars.

The other set of statements recognized revenue in full as soon as InnoVida

received payment for a factory, even if construction was incomplete. This second 

set of statements was labeled “pro forma.” It reported substantial profits.

Together with Claudio Osorio, the owner and majority shareholder of 

InnoVida, Toll participated in two schemes, the first of which involved private 

investors. Osorio and others solicited individuals to invest directly in InnoVida or 

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enter into joint ventures for “factories in a box.” InnoVida structured the joint 

ventures so that the investors would own fifty percent of the equity in exchange for 

their capital contributions, and InnoVida would own the other fifty percent in 

exchange for providing equipment. When it provided that equipment, InnoVida 

marked up the price by about 100 percent.

Toll and Osorio misrepresented some facts to investors and omitted others. 

They provided the investors with the pro forma statements reporting substantial 

profits, but no one told the investors about the other set reporting significant losses.

They also told some investors that Osorio was not receiving a salary, but Osorio 

funneled substantial corporate funds to a personal account. And neither Toll nor 

Osorio revealed that InnoVida used deposits from some investors to pay others. 

The second scheme involved a loan from the Overseas Private Investment 

Corporation, an agency of the United States. A managing director of the 

Investment Corporation explained that its “mission is to help people in 

[developing] countries to improve their economic position while, at the same time, 

helping U.S. businesses to grow their markets and develop their business.” Osorio 

and Toll obtained a $10 million loan from the Investment Corporation for a 

purported project in Haiti. The Investment Corporation disbursed $3.2 million of 

the loan, and Osorio and Toll used the majority of it for improper purposes, such as 

repaying other investors and funding Osorio’s personal account. When InnoVida

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sought the remainder of the loan, the Investment Corporation requested records to 

verify that InnoVida had complied with the terms. InnoVida provided the 

Investment Corporation with false documents about its use of the loan proceeds, 

about its equity contribution to the Haiti project, and about purported contracts it 

secured in Haiti. Suspecting fraud, the Investment Corporation never disbursed the 

remaining proceeds.

A federal grand jury indicted Toll and Osorio for their participation in both 

schemes. It indicted Toll for two counts of conspiracy to commit wire fraud, 18 

U.S.C. § 1349, fifteen counts of wire fraud, id. § 1343, one count of major fraud 

against the United States, id. § 1031(a), three counts of making false statements to 

a federal agency, id. § 1001(a)(3), and one count of conspiracy to engage in a 

monetary transaction with criminally derived property, id. § 1956(h). 

At trial, the government introduced evidence to prove Toll’s participation in,

and knowledge of, both schemes. Lewis Carness, the controller at InnoVida, 

testified about how the accounting department operated. Although Toll initially 

was a signatory for most of the bank accounts, he was removed in 2009 and had to 

receive bank statements from another employee, Elba Gamboa. This change 

occurred after Osorio’s wife, who did not have an official title but managed some 

aspects of InnoVida, became upset with Toll and Carness for installing an 

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expensive accounting system. She reduced both of their salaries, instructed Carness 

to report directly to her, and tried “to isolate” Toll from the company. 

Carness explained that the accounting department prepared two sets of 

financial statements. When the prosecutor asked Carness to explain what “deferred 

revenue” is, Toll objected. The district court overruled the objection and stated, 

“[H]e’s not testifying as an expert. I’ll allow him to testify as to what happened, his 

involvement with it, but not as an expert.” The government then asked Carness to 

explain the “deferred revenue” section of the financial statements. 

Later, without objection from Toll, Carness testified that, when he prepared 

the statements, he believed that the ones using deferred revenue complied with the

Principles and the ones using full recognition of revenue did not:

Q. The statements that [used deferred revenue,] . . . [w]ere those 

statements done according to what we call GAAP, G-A-A-P?

A. It was done according to our best interpretation of the GAAP 

rules relating to it. It was our understanding that when we went 

through the audit, the auditors would review those methods to validate 

them. We had early discussions with them about the methods and 

received preliminary, you know, agreement from them about the 

methods used.

. . . .

Q. Okay. Those entries [using full recognition of revenue] were 

never booked into the accounting system?

A. No.

Q. Okay. Why not? 

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A. Because the accounting system is supposed to . . . reflect the 

method of accounting that you use for GAAP purposes, for purposes 

of providing financials for the audit. This was merely an alternate 

presentation of financials.

Q. And . . . was this alternate presentation according to GAAP?

. . . .

A. To the . . . best of my knowledge, it was not.

The prosecutor then asked Carness to explain what the phrase “Generally 

Accepted Accounting Principles” meant, and Toll objected. The district court 

allowed Carness to testify “based on his experience.” Carness explained his 

understanding of the Principles:

It’s a general guideline for accountants to use based on 

pronouncements by a nongovernmental body called the Financial 

Accounting Standards Board . . . . [T]here are various levels, ranging 

from pronouncements by that body all the way down to industry 

standards and norms . . . . It’s not a set of rules like the IRS has 

regulations.

. . . .

GAAP standards were done so that companies would treat 

transactions consistently between entities so that their financials could 

be comparable.

Later, the prosecutor asked Carness if InnoVida was “a profitable company,” 

to which Toll again objected. The district court overruled the objection, and Toll 

replied, “I believe not on a GAAP basis.”

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The government presented other evidence about how InnoVida used the two 

sets of statements for different purposes. The set of statements reporting losses was 

recorded in the official accounting system, and when Toll discussed the possibility 

of an external audit with Ernst & Young, he provided them with this set. But the 

set reporting profits was provided to the board of directors of InnoVida, to its 

investors, and to the Investment Corporation. Besides the label “pro forma,” those 

statements had no notations that could have explained the underlying assumptions 

or that the statements differed from those kept in the official accounting system.

Ryan Freedman invested over $5 million in InnoVida. He believed the 

company was “in very good shape” based on the pro forma statements that he 

received, and the statements were “a large part of [his] investment decision.” When 

Freedman consolidated his two investments in factories in a box, he became a 

member of the board of directors. Freedman continued to receive the pro forma 

statements, and Toll made at least one presentation to the board about the financial 

status of InnoVida. Freedman received “approximately [$]1.6, $1.7 million in 

repayment” on his investment. But some of those payments were late, and Toll 

convinced Freedman not to hold InnoVida in default so that InnoVida could obtain 

its loan from the Investment Corporation. Freedman did not understand why 

InnoVida could not repay him, given that a financial statement shown to the board

reported that InnoVida had $39 million in cash. On another occasion, Toll 

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represented that a wire transfer had been made to satisfy a repayment obligation to 

Freedman, but the documentation for that transfer was spurious.

Bernie Carballo was a board member of InnoVida before investing in the 

company. At board meetings, Toll and Osorio represented to him that “the 

company was doing well and that [it was] heading in the right direction.” Toll 

never explained the nature of the pro forma statements that he gave to the board. 

Osorio approached Carballo for a short-term loan for InnoVida, and based on what 

Carballo knew about the finances of InnoVida, he lent $1 million to the company. 

Carballo received some interest payments, but he never recouped his principal. 

Toll represented to Carballo that InnoVida made a wire transfer to repay the loan, 

but as with Freedman, the documentation was spurious.

The government also introduced evidence about Toll’s participation in the 

scheme to obtain a loan from the Investment Corporation. Lynn Tabernacki, a

representative of the Investment Corporation, testified that she dealt with Toll 

“[p]redominantly,” by which she meant “90 percent of the time.” Shortly after the 

earthquake in Haiti, the Investment Corporation loaned InnoVida $10 million so 

that InnoVida could build a factory in Haiti that would sell panels to individuals 

who wanted to construct homes rapidly. The agreement also required InnoVida to 

construct panels at its existing factories to sell to third-party vendors and to assign 

those contracts to the Investment Corporation as security. When applying for the 

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loan, Toll sent Tabernacki the pro forma statements but never explained the 

assumptions underlying them or disclosed that InnoVida maintained another set of 

financial records. The loan required InnoVida to use the proceeds only for the 

project in Haiti, to make an equity investment of $5 million in the project, and to 

submit periodic financial statements that complied with the Principles. 

After the Investment Corporation approved the loan, InnoVida requested 

disbursement of half of the proceeds and provided documentation of an alleged 

equity contribution of $2.5 million. Shortly after that request, InnoVida transferred 

$1 million of the contribution to a subsidiary, purportedly as advance funding to 

produce panels. Toll also provided updated pro forma statements to the Investment 

Corporation, again with no disclosures.

The Investment Corporation eventually approved a disbursement of $3.2 

million. InnoVida used most of these proceeds for purposes unrelated to the Haiti 

project, such as repaying investors and funding a company owned by Osorio. 

Shortly after receiving the initial disbursement, Toll recorded on the general ledger 

an investment of $2,080,000 in the Haiti project, which ostensibly represented a 

purchase of machinery and equipment for the factory in Haiti. But Toll later 

reversed this entry because the transfer never occurred.

A few months later, InnoVida requested the remainder of the loan proceeds, 

and the Investment Corporation required InnoVida to submit records to verify that 

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it had complied with the terms of the loan. Tabernacki requested records about 

how InnoVida had used the first disbursement. Toll sent her documents that 

reported that InnoVida had paid $2,080,000 to one of its subsidiaries for machinery 

and equipment; $1,689,993 to another subsidiary for purchases to fulfill a contract 

for panels; and $1,929,804 to the same subsidiary to fulfill another contract. 

Tabernacki was not satisfied and requested additional information about these 

disbursements. After Gamboa drafted additional documents, Toll asked her to 

make changes because he thought some “items could have been done better.” 

Later, someone from InnoVida submitted bank statements to Tabernacki, but some 

of the statements had withdrawal information deleted so that the payments to 

investors and Osorio’s personal account were not reflected.

Tabernacki also requested that InnoVida provide records of its $2.5 million 

equity contribution to the Haiti project. An attorney for InnoVida emailed 

Tabernacki, and copied Toll, with a one-page document purporting to be a bank 

record for a $2.5 million deposit. Around this time, Toll asked Carness to make an 

entry in the accounting system for a cash transfer of $2.5 million because InnoVida

“had missed some deadline,” but Carness refused to make the entry because “the 

cash wasn’t there.” Tabernacki requested additional information, and someone sent 

her the bank records for the Haiti project. Upon inspection, Tabernacki discovered 

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that the “tracing number” for the purported $2.5 million contribution was actually a 

$500,000 deposit from another investor.

InnoVida also submitted documents purportedly reflecting two contracts to 

sell panels in Haiti. First, an attorney for InnoVida submitted an email stating that 

World Vision, a nongovernmental organization, had “awarded Innovida a total of 

10,000 [panels].” The email was from Osorio to Toll with a forwarded message 

from Lisa Guiterrez Brito, identified as the emergency relief station head for World 

Vision. The email was fabricated: World Vision never entered into such a contract, 

no one named Lisa Gutierrez Brito worked for World Vision, and no one at World 

Vision had the job title “emergency relief station head.” Second, Toll submitted an 

email to Tabernacki reporting that Royal Caribbean Cruises had entered into a deal

with InnoVida. Toll stated that he “thought [the Investment Corporation] should be 

aware of the latest win in Haiti. Royal Caribbean has approved a $3.2 million 

project.” Attached was a purported message to Osorio from an associate vice 

president of Royal Caribbean that “confirmed [the order] at your proposed value of 

$3,275Mill” and stated that the email was “your notice to proceed.” The message 

from the associate vice president was altered: the actual message stated that “if we 

are at $275k . . . I want to move forward with this.” The representative testified 

that Toll was present at meetings where the representative made clear that Royal 

Caribbean would not spend more than $300,000.

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At the close of evidence, Toll moved for a judgment of acquittal, Fed. R. 

Crim. P. 29. The district court acquitted Toll of six substantive counts of wire fraud 

with regard to the investors. The district court denied Toll’s motion about the other 

counts.

In its closing argument, the government mentioned Carness’s testimony 

about the two sets of financial statements, but it did not discuss whether the 

statements complied with the Principles. It explained instead that Toll sent one set 

of statements to potential auditors and a different set to the Investment Corporation 

and investors when he knew that InnoVida was losing money according to the first 

set. It also mentioned that the contract between InnoVida and the Investment 

Corporation required that InnoVida submit financial statements prepared according 

to the Principles but that InnoVida submitted statements labeled “pro forma” that 

did not comply with the Principles. 

The jury convicted Toll of two counts of conspiracy to commit wire fraud, 

three counts of wire fraud, one count of major fraud against the United States, 

three counts of making a false statement to the United States, and one count of 

conspiracy to engage in a monetary transaction with criminally derived property. 

The jury acquitted Toll of the six remaining counts of wire fraud. The district court 

sentenced Toll to 48 months of imprisonment and three years of supervised release, 

and it ordered him to pay $3.3 million in restitution.

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II. STANDARDS OF REVIEW

Two standards of review govern this appeal. First, we ordinarily review the 

admission of lay testimony for abuse of discretion. United States v. Myers, 972 

F.2d 1566, 1575 (11th Cir. 1992). “A district court abuses its discretion if it applies 

an incorrect legal standard, applies the law in an unreasonable or incorrect manner, 

follows improper procedures in making a determination, or makes findings of fact 

that are clearly erroneous.” Citizens for Police Accountability Political Comm. v. 

Browning, 572 F.3d 1213, 1216–17 (11th Cir. 2009). But if a party “fail[s] to 

object [at trial] to the admission of evidence on a particular ground,” we review for 

plain error. United States v. Langford, 647 F.3d 1309, 1325 n.11 (11th Cir. 2011).

Second, “[w]e review de novo whether there is sufficient evidence in the record to 

support a jury’s verdict in a criminal trial, viewing the evidence in the light most 

favorable to the government, and drawing all reasonable factual inferences in favor 

of the jury’s verdict.” United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 

2009). The defendant must do more than “put forth a reasonable hypothesis of 

innocence, because the issue is not whether a jury reasonably could have acquitted 

but whether it reasonably could have found guilt beyond a reasonable doubt.” 

United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).

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III. DISCUSSION

We divide our discussion in two parts. First, we explain that the district court 

did not abuse its discretion when it allowed Carness to testify about whether he 

believed, when he created them, that the financial statements complied with the 

Principles. Second, we explain that sufficient evidence supports each of Toll’s 

convictions.

A. The District Court Did Not Abuse Its Discretion by Admitting Carness’s 

Testimony.

Toll argues that the district court abused its discretion when it allowed 

Carness to testify about whether Toll’s accounting methods complied with 

Generally Accepted Accounting Principles. He contends that, because Carness was 

not qualified as an expert and “[d]eterminations of whether an accounting decision 

complies with or violates [the Principles] require the application of technical or 

other specialized knowledge,” Carness’s testimony was inadmissible under Federal 

Rule of Evidence 702. The government responds that the testimony was largely

factual, but if there was any opinion testimony, it was “admissible as lay opinion 

under Rule 701 because it was based on facts he had perceived as an accountant 

and controller for InnoVida.”

As a threshold matter, the parties dispute our standard of review. The 

government argues that we should review for plain error because Toll never 

objected to the testimony that he now challenges, but Toll argues that he timely 

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objected to Carness’s testimony at trial. Because Toll loses under either standard, 

we need not decide this issue and instead review for abuse of discretion. 

The district court did not abuse its discretion. A lay witness like Carness 

may offer factual testimony so long as he “has personal knowledge of the matter,” 

Fed. R. Evid. 602, and opinion testimony if the testimony is “(a) rationally based 

on the witness’s perception; (b) helpful to clearly understanding the witness’s 

testimony or to determining a fact in issue; and (c) not based on scientific, 

technical, or other specialized knowledge within the scope of Rule 702,” Fed. R. 

Evid. 701. Carness testified to the fact that he believed, when he created the 

statements, that some of them complied with the Principles and others did not. A 

witness provides “factual statements” when he gives a “summary of financial 

records,” United States v. Ransfer, 749 F.3d 914, 938 (11th Cir. 2014), and 

explains how the records were created. Contrary to Toll’s argument, Carness did 

not testify as to whether the accounting methods utilized by Toll actually complied 

with the Principles. Instead, he testified about which statements were “done 

according to [his] best interpretation of [the Principles].” “To the . . . best of [his] 

knowledge,” he believed that, when the statements were prepared, one set

complied with the Principles and the other did not. What Carness believed when he 

prepared the statements is a question of fact, so the district court did not err by

permitting this testimony.

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Even if some of Carness’s testimony was opinion testimony, it was 

admissible under Rule 701. We have held that “Rule 701 does not prohibit lay 

witnesses from testifying based on particularized knowledge gained from their own 

personal experiences.” United States v. Moran, 778 F.3d 942, 967 (11th Cir. 2015) 

(quoting United States v. Hill, 643 F.3d 807, 841 (11th Cir. 2011)). Specifically, a 

“business owner[] or officer[]” may provide lay opinion testimony “because of the 

particularized knowledge that the witness has by virtue of his or her position in the 

business.” Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., 320 F.3d 

1213, 1222 (11th Cir. 2003) (emphasis omitted) (quoting Fed. R. Evid. 701 

advisory committee’s notes to 2000 amendments). Carness’s testimony falls within 

Rule 701. He was the controller of InnoVida and had “at least 18 years of 

experience” as an accountant. He testified whether he believed then that the 

different statements he prepared complied with the Principles as he understood 

them. This testimony was rationally based on his “own personal experiences,” Hill, 

643 F.3d at 841, and “particularized knowledge that [he] ha[d] by virtue of his . . . 

position” in InnoVida, Tampa Bay Shipbuilding & Repair, 320 F.3d at 1222

(emphasis omitted) (quoting Fed. R. Evid. 701 advisory committee’s notes to 2000 

amendments). Because the testimony was admissible, the district court did not 

abuse its discretion.

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B. Sufficient Evidence Supports Each of Toll’s Convictions.

Toll argues that the evidence was insufficient to support each of his ten 

convictions, but we disagree. Sufficient evidence supports Toll’s convictions.

1. Conspiracy to Commit Wire Fraud (Counts 1 and 10)

The jury convicted Toll of one count of conspiracy to defraud investors 

using the wires and one count of conspiracy to defraud the Investment Corporation 

using the wires. Under the federal wire fraud statute, it is unlawful to “transmit[] or 

cause[] to be transmitted by means of wire . . . communication in interstate or 

foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose 

of executing” a “scheme or artifice to defraud, or for obtaining money or property 

by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. 

§ 1343. “Any person who . . . conspires to commit [wire fraud] shall be subject to 

the same penalties as those prescribed for” wire fraud. Id. § 1349. 

To sustain a conviction for conspiracy, “the government must prove (1) ‘the 

existence of an agreement to achieve an unlawful objective’; (2) ‘the defendant[’s] 

knowing and voluntary participation in the conspiracy’; and (3) ‘an overt act in 

furtherance of the conspiracy.’” United States v. McQueen, 727 F.3d 1144, 1153 

(11th Cir. 2013) (alteration in original) (quoting United States v. IbarguenMosquera, 634 F.3d 1370, 1385 (11th Cir. 2011)). “The very nature of conspiracy 

frequently requires that the existence of an agreement be proved by inferences 

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from the conduct of the alleged participants or from circumstantial evidence of a 

scheme.” United States v. Molina, 443 F.3d 824, 828 (11th Cir. 2006) (quoting 

United States v. Ayala, 643 F.2d 244, 248 (5th Cir. Unit A April 1981)). “A 

conspiracy conviction will be upheld . . . when the circumstances surrounding a 

person’s presence at the scene of conspiratorial activity are so obvious that 

knowledge of its character can be fairly attributed to him,” id. (alteration in 

original) (quoting United States v. Figueroa, 720 F.2d 1239, 1246 (11th Cir. 

1983)), but the “inference of participation from presence and association with 

conspirators alone does not suffice to convict,” United States v. Perez-Tosta, 36 

F.3d 1552, 1557 (11th Cir. 1994). “[A] defendant can be convicted even if his or 

her participation in the scheme is ‘slight’ by comparison to the actions of other coconspirators.” United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998). 

a. Conspiracy to Defraud the Private Investors Using the Wires (Count 1)

Toll argues that the government “failed to prove [that] Osorio and Toll 

formed any agreement” or that Toll had any “knowledge of Osorio’s criminal 

scheme to defraud investors.” The government responds that it introduced 

sufficient evidence from which “the jury was free to consider Toll’s actions, or 

lack thereof . . . , to infer that Toll was knowingly involved in the fraud 

conspiracies.” We agree with the government.

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The government presented sufficient evidence for a jury to find beyond a 

reasonable doubt that Toll knew Osorio was misrepresenting the financial strength 

of InnoVida and agreed to assist Osorio in his deceit. Toll oversaw the preparation 

of two sets of financial statements. One set recognized revenue in full immediately

and reported substantial profits; the other set deferred recognition of revenue and

reported substantial losses. Ordinarily, financial statements using immediate 

revenue recognition are used for internal management, but Toll often presented 

those statements to investors. Those statements were also the ones presented to the 

board, and Toll did not qualify his representations that InnoVida was profitable. 

Toll recorded the other set of financial statements in the official accounting system 

and gave them to Ernst & Young when he explored the possibility of an external 

audit. Although the statements showing profits were labeled “pro forma,” they

contained no disclosures to alert anyone outside of management that the statements 

differed from the other set in the accounting system, and no one explained what 

“pro forma” meant. Based on Toll’s preparation of two sets of financial statements 

and his suspicious use of them, the jury could reasonably infer that Toll agreed to 

help Osorio misrepresent the financial strength of InnoVida.

Toll argues that the evidence is insufficient because it proves that he and 

Osorio “continually worked at cross purposes,” to the point that the Osorios shut 

him out of decisionmaking. Toll argues that he presented evidence that he 

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“implement[ed] a transparent, well-structured accounting system”; he did not have 

direct access to the bank accounts for InnoVida; and the Osorios “systematically 

undermined [his] efforts toward financial transparency.”

Toll’s argument fails. That he took some steps towards a transparent 

accounting system does not mean that a jury could not reasonably find he also 

participated in the schemes. As to the issue of Toll’s isolation, the government 

presented evidence that the Osorios took their actions because Osorio’s wife was 

frustrated with the cost of the accounting system. The government also presented 

evidence that Toll prepared and submitted the statements to InnoVida’s investors 

and the Investment Corporation without qualifying his ability to verify the 

information. In other words, Toll continued to behave toward outsiders as they 

would expect a chief financial officer to behave. Because Toll was a well-educated 

and experienced officer, the jury could have reasonably disbelieved Toll’s 

evidence that he worked at cross purposes with the Osorios.

Toll also argues that the jury could not have found that he intended to 

mislead investors with the financial statements because the government failed to 

prove that the statements did not comply with the Principles, but the government 

did not need to prove that the statements violated the Principles or that Toll knew

they did. The government was required only to “pro[ve] . . . a material 

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

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2009). The material representation was the unqualified disclosure that InnoVida

was making substantial profits when the official accounting system for InnoVida

reported substantial losses. The government presented sufficient circumstantial 

evidence to prove that Toll conspired to make this material misrepresentation. 

Toll argues that the government failed to prove that he shared the 

“conspiratorial goals” because “no evidence [proved] that Toll sought to 

unlawfully enrich himself or Osorio,” but we disagree. That Toll never directly 

received the proceeds of the fraud is immaterial. As the government explains, “[b]y 

playing along with the fraud scheme, Toll was able to remain employed in a 

management position, and received a respectable salary for allowing the fraud 

scheme to fester unabated.”

Toll also argues that there is no evidence that he solicited and recruited

investors, but we again disagree. Although Toll attempts to minimize his role, “a 

defendant can be convicted even if his . . . participation in the scheme is ‘slight.’” 

Toler, 144 F.3d at 1428. Toll never solicited investors himself, but the government 

presented evidence that he assisted Osorio in doing so. Toll created the financial 

statements and knew that they would be presented to investors. Moreover, Toll 

repeatedly reported to the board, including investors Carballo and Freedman, that 

the company was prospering. This evidence proves that Toll’s participation in the 

scheme was more than slight and is more than sufficient to sustain his conviction.

Case: 13-14540 Date Filed: 11/03/2015 Page: 22 of 32 
b. Conspiracy to Defraud the Investment Corporation Using the Wires

(Count 10)

Toll also argues that he “did not knowingly and intentionally submit false 

information and documents to [the Investment Corporation] about purported 

contracts, the use of loan proceeds, or an equity contribution.” He concedes that 

these documents were false but argues that the evidence failed to prove that he 

knew of or participated in the fraud. We disagree for three reasons.

First, sufficient evidence established that Toll knew the loan proceeds were 

not used in accordance with the contract. When Tabernacki asked for records about 

how the proceeds were used, Toll sent her documents that reported InnoVida had 

transferred money to pay for machinery, equipment, and panels, including a 

transfer of $2,080,000 to one of its subsidiaries. The general ledger establishes that 

Toll knew some of this information was false before he sent it to Tabernacki 

because he had already reversed an entry for the $2,080,000 payment. And other 

evidence established that, when Tabernacki was not satisfied, Toll suggested to 

another employee ways the documents “could [be] done better.” Based on this 

evidence, the jury could reasonably infer that Toll was aware the loan proceeds 

were used improperly.

Second, sufficient evidence established that Toll knew he misrepresented 

whether InnoVida made its required equity contribution. Toll, through an attorney 

for InnoVida, submitted a document purportedly reflecting a $2.5 million equity 

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contribution, but the transaction had the same tracing number as a $500,000 

deposit from an investor. Carness testified that Toll asked him to make an entry in 

the accounting system for the transfer of $2.5 million, but Carness refused to make 

the entry because the transfer never happened. The jury could reasonably infer 

from this evidence that, when Toll sent the document to Tabernacki, he knew that 

InnoVida had never made its contribution.

Third, sufficient evidence established that Toll knew the two purported 

contracts were false. With respect to Royal Caribbean, Toll forwarded an email 

that was altered to evidence a deal for $3,275,000, instead of $275,000. A

representative from Royal Caribbean testified that, at meetings with Toll, he made 

clear that the contract would not exceed $300,000. And with respect to World 

Vision, the government presented significant circumstantial evidence that Toll 

knew the document was false. In addition to the direct evidence that Toll had 

submitted other false documents, the language in the altered document from Royal 

Caribbean was similar to the language in the altered document from World Vision, 

giving rise to an inference that Toll at least knew the email was altered. Toll was

also the chief financial officer and in charge of recording payments for contracts on 

the general ledger. The jury could reasonably infer from this evidence that Toll 

knew that both of the purported contracts were false. 

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2. Conspiracy to Engage in a Monetary Transaction with Criminally 

Derived Property Worth More Than $10,000 (Count 22)

It is unlawful, subject to certain jurisdictional limits not challenged in this 

appeal, to “knowingly engage[] . . . in a monetary transaction in criminally derived 

property of a value greater than $10,000” that “is derived from specified unlawful 

activity,” including wire fraud. 18 U.S.C. § 1957. It is also unlawful to “conspire[]

to commit [that] offense.” Id. § 1956(h). Toll reasserts his earlier arguments that 

the evidence failed to establish knowledge of unlawful activity, but as we

explained above, the government introduced sufficient evidence that Toll knew of 

the fraudulent activity. 

Toll argues that the evidence establishes that he never “move[d] . . . money,” 

but the government was not required to prove that he did. The Supreme Court has 

held that to sustain a conviction for conspiracy to engage in transactions prohibited 

by section 1956(h), the government is not required to prove any overt act in 

furtherance of the conspiracy. Whitfield v. United States, 543 U.S. 209, 219, 125 S. 

Ct. 687, 694 (2005). The government must prove only an “agreement between two 

or more persons to commit a money-laundering offense” and “knowing and 

voluntary participation in that agreement by the defendant.” United States v. 

Broughton, 689 F.3d 1260, 1280 (11th Cir. 2012). 

The government presented sufficient evidence of both elements of the 

charged conspiracy. InnoVida used the proceeds of the loans to repay disgruntled 

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investors and fund Osorio’s personal account, neither of which were approved 

uses. Other evidence, including evidence that Toll reversed an entry in the general 

ledger, further established that Toll knew of and assisted in the improper uses of 

the funds. This participation was all that was required to sustain Toll’s conviction 

for conspiracy to launder money.

3. Wire Fraud (Counts 14, 15, and 17)

The jury could have reasonably found that Toll committed the three counts 

of wire fraud related to the Investment Corporation. Wire fraud consists of 

“transmit[ting] or caus[ing] to be transmitted by means of wire . . . communication 

in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds 

for the purpose of executing” a “scheme or artifice to defraud, or for obtaining 

money or property by means of false or fraudulent pretenses, representations, or 

promises.” 18 U.S.C. § 1343. Toll does not dispute that the communications were 

made in furtherance of a scheme; he argues only that “the government failed to 

prove Toll knew of or participated in the fraudulent scheme.” But for the same 

reasons that there is sufficient evidence of the conspiracy to defraud the Investment 

Corporation, there is sufficient evidence that Toll “knew of or participated in the 

fraudulent scheme” for purposes of these counts.

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4. Major Fraud Against the United States (Count 18)

The jury also could have reasonably found that Toll committed major fraud 

against the United States. As applied here, that offense involves “knowingly 

execut[ing] . . . any scheme or artifice with the intent . . . to defraud the United 

States . . . in any . . . loan . . . if the value of such . . . loan . . . is $1,000,000 or 

more.” 18 U.S.C. § 1031(a). Section 1031(a) “sweep[s] broadly to . . . cover fraud 

not only in the making of the contract, but also in the execution of the contract.” 

United States v. Nolan, 223 F.3d 1311, 1315 n.5 (11th Cir. 2000). Toll again

argues that the evidence is insufficient because the government failed to prove 

knowledge of, or participation in, any fraudulent scheme. The evidence was 

sufficient for the same reasons we discussed in affirming his conviction for 

conspiracy to commit wire fraud.

5. Making False Statements to a Federal Agency (Counts 19–21)

The jury convicted Toll of three counts of making false statements to a 

federal agency. It is unlawful, “in any matter within the jurisdiction of the 

executive . . . branch of the Government of the United States, [to] knowingly and 

willfully . . . make[] or use[] any false writing or document knowing the same to 

contain any materially false, fictitious, or fraudulent statement or entry.” 18 U.S.C. 

§ 1001(a). A statement is material if it has “a natural tendency to influence, or [be] 

capable of influencing, the decision of the decisionmaking body to which it was 

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addressed.” United States v. Gaudin, 515 U.S. 506, 509, 115 S. Ct. 2310, 2313 

(1995) (quoting Kungys v. United States, 485 U.S. 759, 770, 108 S. Ct. 1537, 1546 

(1988)). “The government is not required to prove that the statement had actual 

influence.” United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010).

a. The False Statement About Royal Caribbean (Count 20)

The jury convicted Toll of submitting a document falsely stating that 

InnoVida had entered into a contract with Royal Caribbean for $3.2 million. Toll 

does not deny that the document was false, but argues that there was no evidence 

that he “knew the document was fabricated” or that it was material. We reject both 

arguments.

The jury could have reasonably found that Toll knew that the document was 

false and that it was material. Toll sent the document to Tabernacki, and the 

document reported a contract price of $3,275,000, not $275,000. Although it is 

uncertain who altered the email, a representative from Royal Caribbean testified 

that Toll attended meetings where Royal Caribbean made clear that the contract 

would not exceed $300,000. Even if Toll did not alter the email himself, a 

reasonable jury could have found that Toll knew the document was false when he 

submitted it to the Investment Corporation. And the document was material 

because it represented that Royal Caribbean was entering into a contract with 

InnoVida worth “$3,275Mill” and that InnoVida should “consider this e-mail as [a]

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notice to proceed.” Such a large contract, which would be assigned to the 

Investment Corporation, had “a natural tendency to influence” the decisions of the 

Investment Corporation. Gaudin, 515 U.S. at 509, 115 S. Ct. at 2313 (quoting 

Kungys, 485 U.S. at 770, 108 S. Ct. at 1546).

b. The False Statement About the Equity Contribution (Count 21)

The jury also convicted Toll of causing the submission of a materially false 

document stating that InnoVida had made a required equity contribution of $2.5 

million. See 18 U.S.C. §§ 1031, 2. Toll does not dispute that the document was 

false, but argues that the evidence fails to establish that he “caused it to be 

submitted” or that “he knew the document was fabricated.”

As with the other documents, the jury could have reasonably found that Toll 

caused the document to be submitted to the Investment Corporation. Although an 

attorney for InnoVida submitted the document, Toll ordinarily sent all of the 

documents to the attorneys for submission to the Investment Corporation. And Toll 

was the only employee of InnoVida who was copied on the email to the Investment 

Corporation. Based on this evidence, the jury could have reasonably found that 

Toll caused the document to be submitted to the Investment Corporation.

The jury also could have reasonably found that Toll knew the document was 

false. Before submitting the false document, Toll asked Carness to make an entry 

in the accounting system for the transfer of $2.5 million, and Carness refused 

Case: 13-14540 Date Filed: 11/03/2015 Page: 29 of 32 
because it was not supported by the bank records. The document that Toll 

submitted also bore the same tracing number as a $500,000 deposit from another 

investor. Based on this evidence, the jury could have reasonably inferred that Toll 

knew that the document was false when he submitted it to the Investment 

Corporation.

c. The False Statement About World Vision (Count 19)

Finally, the jury convicted Toll for causing an attorney for InnoVida to 

submit a document falsely stating that InnoVida had entered into a contract with 

World Vision for the sale of 10,000 shelters in Haiti. Toll does not deny that the 

document was false, but he argues that the government failed to establish that he 

“caus[ed] the document to be submitted,” that “he knew the document was 

fabricated,” and that the document was material. We disagree.

The jury could have reasonably found that Toll caused the document to be 

submitted to the Investment Corporation. An attorney for InnoVida sent the 

document to the Investment Corporation, and the attorney testified that it was 

“very possible” that Toll sent him the document. The government also presented 

testimony that documents submitted to the attorneys “principally” came from Toll,

and the document that the attorney sent to the Investment Corporation was a copy 

of a message from Osorio to Toll. Based on this evidence, someone with access to 

either Osorio’s or Toll’s email must have submitted the document to the attorney, 

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and a jury could reasonably infer that Toll submitted the email because he 

ordinarily submitted the documents to the attorneys. 

The jury also could have reasonably found that Toll knew the document was 

false. The government established that Toll conspired to defraud the Investment 

Corporation, and it presented direct evidence that Toll knew he submitted at least 

two other false documents—one about the purported contract with Royal 

Caribbean and another about the purported equity contribution. Moreover, the 

language in the altered document from Royal Caribbean is similar to the language 

in the altered document from World Vision. Toll was also the chief financial 

officer, so he was responsible for recording any contract payments on the general 

ledger. Based on this significant circumstantial evidence, the jury could make the 

reasonable inference that Toll knew that this document was false. See United States 

v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011).

Moreover, the jury could have reasonably found that the document was 

material. Toll argues that the document was not material because the email does 

not use the word “contract,” and because Tabernacki testified that she did not “put 

any value” in the email. Although Toll is correct that the document does not use 

the word “contract,” the document states that World Vision “ha[s] awarded 

InnoVida a total of 10[,]000 Units” and that InnoVida should “consider this e-mail 

a notice to proceed with production and mobilization.” Even assuming that

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document is not a contract itself, the email communicates that a deal had been 

struck. It is irrelevant that Tabernacki was not actually influenced by the 

document. See Boffil-Rivera, 607 F.3d at 741. InnoVida was required to assign its 

contracts to the Investment Corporation as security for the loan, so a large contract 

was material because it would have “a natural tendency to influence” the decisions 

of the Investment Corporation. Gaudin, 515 U.S. at 509, 115 S. Ct. at 2313.

IV. CONCLUSION

We AFFIRM Toll’s convictions. 

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