          Case: 12-12658   Date Filed: 05/28/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]

           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT


                       Nos. 12-12658 ; 12-12659


                D.C. Docket No. 1:11-cr-20131-RWG-1



UNITED STATES OF AMERICA,
                                                            Plaintiff-Appellee,

                                 versus

JONATHAN RANDALL CURSHEN,
NATHAN BRADLEY MONTGOMERY,
                                                      Defendants-Appellants.



                 Appeals from the United States District Court
                     for the Southern District of Florida


                            (May 28, 2014)
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Before HULL, COX and FARRIS,∗ Circuit Judges.

PER CURIAM:

       Defendants 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 the 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 Tech”) 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 plummet 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.


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activities of CO2 Tech-stock sellers and buyers. Their scheme left unsuspecting

investors holding worthless shares of CO2 Tech stock.

       The superseding indictment charged defendants 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 violation 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, the 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 Curshen 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 404(b) of the Federal Rules


       1
        Four co-conspirators pled guilty to the crimes alleged in the superseding indictment.
Three co-conspirators are fugitives.


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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 admission 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 Rule 404(b).

       Defendant Curshen’s and Montgomery’s arguments lack merit and warrant

no further discussion except for their Rule 404(b) claims.

       As to the Rule 404(b) arguments, there is a question regarding whether the

district court abused its discretion in admitting such evidence over the defendants’

objections.2 Even assuming that the 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).


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                              III. CONCLUSION

     For the foregoing reasons, we affirm defendant Curshen’s and defendant

Montgomery’s convictions and sentences.

     AFFIRMED.




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