              Case: 19-11945    Date Filed: 03/26/2020    Page: 1 of 11



                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-11945
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 2:18-cr-00127-SPC-UAM-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff–Appellee,

                                       versus

TOMMY N. TRACY,

                                                              Defendant–Appellant.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (March 26, 2020)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Tommy Tracy was convicted of committing fraud in connection with major-

disaster benefits, in violation of 18 U.S.C. §§ 1042(a)(2), (b)(3). On appeal, he
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argues that the district court erred in denying his motion for judgment of acquittal

because insufficient evidence was presented at trial for the jury to find beyond a

reasonable doubt that he knowingly submitted a fraudulent application to obtain

major-disaster benefits from the Federal Emergency Management Agency. After

careful review of the record, we affirm Tracy’s conviction.

                                I. BACKGROUND

      We begin by reviewing the events leading to Tracy’s indictment for and

conviction of major-disaster benefits fraud, noting that we “view[] the evidence in

the light most favorable to the government, and draw[] all reasonable factual

inferences in favor of the jury’s verdict.” United States v. Jiminez, 564 F.3d 1280,

1284 (11th Cir. 2009).

      Based on the evidence adduced at trial, Tracy owned a two-story house in

North Fort Myers, Florida, which was subdivided into three apartments: two on the

first floor and one on the second. At the time that Hurricane Irma struck the area

in mid-September 2017, all three apartments were occupied by tenants. On the

first floor, Marion Plau and her boyfriend rented one of the first-floor apartments

since 2013, Charles Hatchett rented the other first-floor apartment since 2011 or

2012, and John Hunter and Ashley Hoffrichter rented the second-floor apartment

since 2015 or 2016. Sometime before the hurricane, Tracy began living on the

property—but in a travel trailer, not in any of the apartments.


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      Shortly after the hurricane hit, Tracy submitted an online application for

individual assistance. The application identified Tracy as the applicant and owner

of the North Fort Myers property and listed Hunter as a “boarder.” The property

was marked as Tracy’s primary residence—that is, the location where he lived for

six months or more out of the year. The type of residence was listed as “house-

single/duplex,” but the available choices included “travel trailer.” The application

indicated that the home listed as the primary residence, as well as its contents, had

been damaged by the disaster. The application also indicated that Tracy did not

own a rental property that had been damaged by the disaster. Relevantly, FEMA

grant programs like the one for which Tracy applied were available only to

applicants whose primary residence had been damaged.

      After Tracy submitted his application for FEMA assistance, the agency sent

him a letter confirming his application for disaster assistance, providing

information about available assistance, and listing the criteria for eligibility.

Relevantly, one of the criteria was that the home damaged by the disaster must be

the applicant’s “primary residence, where you live the majority of the year.” The

application clarified that FEMA would conduct an investigation of his home.

      FEMA inspector Matthew McCash met with Tracy on October 8, 2017, to

inspect his property. Tracy had already submitted proof of ownership of the house

to FEMA, which verified that he owned it. Tracy told McCash that the first floor


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was his primary residence, but apparently did not state that he had been living in

the first floor at the time of the hurricane. McCash testified that if Tracy had

informed him that the first floor was not his primary residence, he would have

concluded that Tracy was ineligible for FEMA assistance and would not have

conducted the investigation. McCash inspected the first floor, but not the

second—he saw that there were tenants living in it and assumed that Tracy had

rented it out. As part of his inspection, McCash gave Tracy a disclosure statement,

which stated that misinforming FEMA could lead to federal prosecution. Tracy

read and signed the disclosure.

      After receiving the results of McCash’s investigation, FEMA issued an

award letter to Tracy, stating that he was eligible for a total of $24,211.50 of

assistance—$17,199.50 for home repairs, $5,100 for personal property, and $1,912

for temporary housing. Tracy received an electronic funds transfer from FEMA to

his personal bank account for $24,211.50, and stayed in a FEMA-paid hotel for

approximately six months.

      Each of Tracy’s tenants suffered damage as a result of the hurricane, but

received little to no assistance from Tracy. Hatchett specifically testified that

Tracy asked him not to file for FEMA benefits, and told Hatchett stated that he

would help him by either letting him move back in once the apartments were

repaired or by paying him for his lost belongings. Tracy later gave Hatchett a


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check for $1,000, which stated that it was for “help[ing] around the property,” but

which Hatchett believed was intended to help him out “because of what [he] had

been through and lost.”

      Similarly, Plau testified that she had to relocate after the hurricane—the first

floor of the house had flooded, damaging the building and her belongings. Tracy

advised her to apply for FEMA assistance, but when she did so, FEMA stated that

her benefits had already been claimed and did not award her any damages. She

testified that she later learned that Tracy had received FEMA assistance, but did

not give any to her.

      Hoffrichter testified that her apartment had suffered some damage from the

rain and was without electricity for three weeks. She said that Tracy advised her

and the other tenants not to apply for FEMA benefits, telling them that he would

take care of them. She submitted a FEMA application anyway, which was denied

because Tracy had already claimed the benefits. Hoffrichter reported Tracy after

discovering that he received money from FEMA. She also testified that she and

Hunter did not speak to McCash when he inspected the property because Tracy had

told them to “just stand back” and, if asked, to tell McCash that they were guests.

Hunter testified to a similar effect—that their apartment had suffered a “[l]ittle bit

of water” damage, he applied for FEMA benefits in his own name, but did not

receive any.


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      On January 12, 2018, Daniel Lopez, a special agent with the Department of

Homeland Security’s Office of the Inspector General, traveled to the North Fort

Myers property as part of his investigation into Tracy for FEMA fraud. Lopez

spoke with Hunter and Hoffrichter, but their conversation was interrupted by

Tracy’s arrival. Tracy told Lopez that he resided part of the year in a travel trailer

and the other part in the Florida Keys, and that the North Fort Myers house was not

his primary residence.

      On August 15, 2018, Tracy was indicted on one count of committing major-

disaster benefits fraud. The case proceeded to trial, and the government presented

the aforementioned evidence. At the close of the government’s case in chief,

Tracy moved for a judgment of acquittal, arguing that (1) the evidence showed that

the North Fort Myers property was his primary residence at the time of Hurricane

Irma, and (2) that Tracy’s listing of Hunter as a “boarder” on the application

indicated that his answer that he did not own a rental property that had been

damaged by the hurricane was merely an error. The district court denied Tracy’s

motion.

      Tracy then presented his own case. He called Dr. Hyman Eisenstein, a

psychologist and expert in neuropsychology. Dr. Eisenstein testified that he had

performed a neuropsychiatric evaluation of Tracy. He confirmed that although

Tracy’s intelligence quotient fell within “the average range of intellectual


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functioning,” other tests revealed “severe impairment in the frontal lobes.” These

impairments affected Tracy’s judgment and reasoning, causing him “mental

confusion, difficulty with making decisions, [and] not profiting from feedback.”

While he could “maintain in most areas cognitive function . . . within the normal

limits,” his ability to make decisions “at a higher level of cognitive functioning”

was impaired. In the context of filling out an application, this impairment would

cause him to be more likely to make mistakes. Following Dr. Eisenstein’s

testimony, Tracy rested and did not testify in his defense. He renewed his motion

for a judgment of acquittal, which the district court again denied.

      The jury found Tracy guilty. The district court adjudged him guilty and

conducted a sentencing hearing. At the hearing, the court noted that Tracy was 72

years old and had no criminal history. Accordingly, Tracy was sentenced to time

served and a 5-year term of supervised release, and was ordered to pay $41,392.66

in restitution. Tracy timely appealed to us.

                                   II. ANALYSIS

      As an initial matter, we review a challenge to the sufficiency of the evidence

de novo to determine “whether a reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” United States v. Mercer, 541 F.3d 1070, 1074

(11th Cir. 2008). In making that determination, we “view[] the evidence in the

light most favorable to the government, and draw[] all reasonable factual


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inferences in favor of the jury’s verdict.” United States v. Jiminez, 564 F.3d 1280,

1284 (11th Cir. 2009). This analysis “is identical regardless of whether the

evidence is direct or circumstantial, and no distinction is to be made between the

weight given to either.” United States v. Mieres-Borges, 919 F.2d 652, 656-67

(11th Cir. 1990) (quotation mark omitted). However, “[w]hen the government

relies on circumstantial evidence, reasonable inferences, not mere speculation,

must support the conviction.” United States v. Mendez, 528 F.3d 811, 814 (11th

Cir. 2008). In reviewing the sufficiency of the evidence, we “assume that the jury

made all credibility choices in support of the verdict.” United States v. Maxwell,

579 F.3d 1282, 1299 (11th Cir. 2009). Moreover, “the evidence need not exclude

every reasonable hypothesis of innocence.” United States v. Knowles, 66 F.3d

1146, 1154 (11th Cir. 1995) (quotation marks omitted).

      Under 18 U.S.C. § 1040, it is illegal to

      knowingly . . . make[] any materially false, fictitious, or fraudulent
      statement or representation, or make[] or use[] any false writing or
      document knowing the same to contain any materially false, fictitious,
      or fraudulent statement or representation, in any matter involving any
      benefit authorized, transported, transmitted, transferred, disbursed, or
      paid in connection with a major disaster declaration . . . .

18 U.S.C. § 1040(a).

      “The term ‘knowingly’ means that the act was performed voluntarily and

intentionally, and not because of a mistake or accident.” United States v.

Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002) (addressing a conviction under 18
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U.S.C. § 1951(a)). Absent a statutory directive, “the term ‘knowingly’ merely

requires proof of knowledge of the facts that constitute the offense.” Bryan v.

United States, 524 U.S. 184, 193 (1998).

      On appeal, Tracy’s core argument is that there was insufficient evidence to

show that his application was “knowingly and fraudulently” made. He argues that

the government only presented circumstantial evidence of his intent to commit

major-disaster benefits fraud, and that the evidence adduced at trial actually shows

that the North Fort Myers house was his primary residence at the time of the

hurricane. Tracy further argues that, because of his mental deficits, the application

was confusing to him and that it is unreasonable to conclude that his conduct was

criminally culpable.

      Based on the evidence presented at trial, we conclude that the district court

did not err in denying Tracy’s motion for a judgment of acquittal and that his

arguments are without merit. The evidence shows that Tracy was provided with

adequate—but easy-to-follow—information from FEMA explaining that assistance

was available only to damage to primary residences, which FEMA documents

explained in plain terms. Even if we assume that he experienced difficulty in

filling out the application because of his mental deficits, those deficits do not

explain why he would then repeat that misinformation to McCash when he

conducted an in-person inspection. McCash’s testimony—that Tracy told him that


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his primary residence was the first floor of the North Fort Myers property—was

not contradicted.

      Moreover, the testimony of Tracy’s tenants supports the jury’s guilty

verdict. Hatchett and Hoffrichter specifically testified that Tracy had advised the

tenants not to apply for benefits, because he would take care of them. But despite

the fact that Tracy received a nearly $25,000 payout from FEMA, he provided only

Hatchett with anything—and even then, just a $1,000 check, which he claimed was

for Hatchett’s assistance around the property, not as compensation for damage to

his property or possessions.

      The cumulative effect of this testimony—which, again, was uncontradicted

by Tracy—was that Tracy knowingly misrepresented the North Fort Myers

property as his primary residence, repeated that misrepresentation to McCash, and

lied to his tenants in an attempt to dissuade them from filing for benefits

themselves. The inferences necessarily drawn by the jury to that effect—which

involved crediting the government’s witnesses over Tracy’s expert witness—were

entirely reasonable. We read Tracy’s arguments to the contrary as essentially

asking us to make another inference based on the evidence—one that is more

favorable to him. But doing so would obviate our duty to draw all reasonable

inferences in favor of the jury’s verdict. Jiminez, 564 F.3d at 1284.




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                                 III. CONCLUSION

      We conclude that the district court did not err in denying Tracy’s motion for

judgment of acquittal because the government presented sufficient evidence for the

jury to find that he knowingly provided false answers on his application for FEMA

relief, and it was within the province of the jury to credit the testimony of the

government’s witnesses over that of Tracy’s expert. Accordingly, Tracy’s

conviction is

      AFFIRMED.




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