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                                                                  [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 16-11969
                              ________________________

                      D.C. Docket No. 2:13-cr-00045-RWS-JCF-1



UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

versus

STANLEY J. KOWALEWSKI,

                                                         Defendant - Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (September 6, 2017)

Before TJOFLAT and JORDAN, Circuit Judges, and HUCK, * District Judge.

PER CURIAM:


*
  The Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
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      Stanley J. Kowalewski was the owner and CEO of SJK Investment

Management, Inc., a hedge fund of funds manager. In 2009, Mr. Kowalewski

formed a new SJK fund called the Special Opportunities Fund, which he did not

disclose to investors. He diverted more than $16 million into the SOF without the

investors’ knowledge and used that money to make a number of personal

purchases and to transfer over $4 million into his personal bank account.

      A federal grand jury charged Mr. Kowalewski with 22 counts of wire fraud,

in violation of 18 U.S.C. §§ 1343 & 2, based on his alleged diversion of funds and

misrepresentations to investors; one count of conspiracy to obstruct a Securities

and Exchange Commission proceeding, in violation of 18 U.S.C. § 371; and one

count of obstruction of an SEC proceeding, in violation of 18 U.S.C. §§ 1505 & 2,

based on false testimony and altered documentation that he provided to the SEC

during its investigation of SJK. Following a trial, a jury found Mr. Kowalewski

guilty on all counts and the district court sentenced him to 209 months’

imprisonment.

      Mr. Kowalewski argues on appeal that the government presented insufficient

evidence to sustain his convictions for wire fraud, conspiracy to obstruct, and

obstruction. We address each conviction in turn.

      “On review, we must affirm if the evidence and the inferences it supports,

viewed in the light most favorable to the government, would permit a reasonable


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trier of fact to establish guilt beyond a reasonable doubt.” United States v. Harrell,

737 F.2d 971, 979 (11th Cir. 1984). We consider the evidence “with all inferences

and credibility choices drawn in the government’s favor,” and we “are bound by

the jury’s credibility choices, and by its rejection of the inferences raised by the

defendant.” United States v. Broughton, 689 F.3d 1260, 1276–77 (11th Cir. 2012)

(citation omitted). In doing so, we do not ask whether we believe “that the

evidence at the trial established guilt beyond a reasonable doubt”—rather, the

“relevant question is whether, after viewing the evidence 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.” Jackson v. Virginia,

443 U.S. 307, 318–19 (1979) (emphasis in original). The “evidence need not

exclude every reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt.” Harrell, 737 F.2d at 979.

      To establish wire fraud under 18 U.S.C. § 1343 the government must prove

“(1) intentional participation in a scheme to defraud and (2) use of the interstate

wires in furtherance of the scheme.” United States v. Hasson, 333 F.3d 1264, 1270

(11th Cir. 2003). Mr. Kowalewski argues that the government did not present

sufficient evidence to demonstrate intent to defraud, but we disagree.

      Intent to defraud may be established by circumstantial evidence, see United

States v. Jennings, 599 F.3d 1241, 1250 (11th Cir. 2010), and the government


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presented sufficient circumstantial evidence from which a reasonable jury could

find the requisite intent to convict Mr. Kowalewski of wire fraud. For example, the

government presented evidence that Mr. Kowalewski provided investors with

monthly statements that misrepresented their account balances through inflated

valuations (up to $20 million more than the actual value of the accounts) and sent

letters to them that misrepresented how their money was invested and what had

driven performance for the month. Mr. Kowalewski also misrepresented to

investors that he was managing more than $400 million in assets, when he never

had more than approximately $71 million under management. The government

presented further evidence that Mr. Kowalewski told investors that he used equity

investment strategies that did not include real estate investments, yet he purchased

a personal home, two homes for relatives, and a beach house with investor funds.

Similarly, he told investors that he would invest in only “unaffiliated” hedge funds,

but instead diverted more than $16 million into the SOF—an “affiliated” fund—

without the investors’ knowledge, using that money to, among other things, buy

personal homes and transfer at least $4 million to himself. Viewing this evidence

and appropriate inferences in the light most favorable to the government, a

reasonable jury could find that Mr. Kowalewski intended to defraud his investors. 1


1
  Mr. Kowalewski argues that the language in the Private Placement Memoranda provided to the
investors permitted him to change investment strategies and negated any oral representations
made to investors. But, unlike in a civil fraud case, such contractual disclaimers do not preclude
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       To prove conspiracy under 18 U.S.C. § 371, the government must present

evidence of “(1) an agreement among two or more persons to achieve an unlawful

objective; (2) knowing and voluntary participation in the agreement; and (3) an

overt act by a conspirator in furtherance of the agreement.” Hasson, 333 F.3d at

1270. Michael Fulcher, SJK’s chief financial officer, pled guilty to conspiring with

Mr. Kowalewski to obstruct the SEC investigation. Mr. Fulcher testified that he, at

Mr. Kowalewski’s direction, created two rental agreements in November of 2010

and backdated them to July of 2010 to make it appear that Mr. Kowalewski’s

family members were leasing properties purchased by the SOF with investor funds

when there were in fact no rental agreements. Mr. Kowalewski told the SEC that

the rental agreements existed and were signed at the time the SOF purchased each

property. Viewing this evidence in the light most favorable to the government, a

reasonable jury could find that Mr. Fulcher and Mr. Kowalewski conspired to

submit false documents to the SEC in order to obstruct its proceeding.

       As for the substantive count of obstruction, the government was required to

prove that Mr. Kowalewski “corruptly . . . endeavor[ed] to influence, obstruct, or

impede the due and proper administration of the law” in the SEC proceeding.

18 U.S.C. § 1505. The term “corruptly” means “acting with an improper purpose,

a criminal conviction for fraud. See United States v. Weaver, 860 F.3d 90, 95 (2d Cir. 2017);
United States v. Lucas, 516 F.3d 316, 339 (5th Cir. 2008); United States v. Ghilarducci, 480 F.3d
542, 546–47 (7th Cir. 2007). In any event, some of the misrepresentations went beyond the types
of investments made.

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personally or by influencing another, including making a false or misleading

statement, or withholding, concealing, altering, or destroying a document or other

information.” 18 U.S.C. § 1515(b). The government presented evidence that

Mr. Kowalewski and Mr. Fulcher created the back-dated rental agreements, and

that Mr. Kowalewski falsely testified to the SEC that the SOF had leased the

properties to him and his family members. There is also evidence that

Mr. Kowalewski falsely stated during his SEC testimony that he had disclosed the

SOF fund to investors, and that his attorneys and other professionals had

authorized his fraudulent activity. Based on this evidence, a reasonable jury could

conclude that Mr. Kowalewski had corruptly endeavored to obstruct the SEC’s

investigation.

       In sum, the government provided sufficient evidence from which a

reasonable jury could find Mr. Kowalewski guilty beyond a reasonable doubt on

the wire fraud, conspiracy, and obstruction charges. Accordingly we affirm his

convictions and sentence.2

       AFFIRMED.




2
  Mr. Kowalewski also raises a number of evidentiary, procedural, and sentencing issues.
Following oral argument and a review of the record, we affirm on those issues without further
discussion.
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