            Case: 12-13234   Date Filed: 03/20/2013   Page: 1 of 6




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13234
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:11-cr-20290-PCH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

RAPHAEL LEVY,

                                                          Defendant-Appellant.

                       ________________________

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

                             (March 20, 2013)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Appellant Raphael Levy appeals his convictions on five counts of financial

instrument fraud, in violation of 18 U.S.C. § 514(a)(1)-(2), arguing that the

evidence adduced at his trial did not support the conclusion that he possessed the

requisite criminal intent. Levy took the stand and admitted to having created and

issued five fictitious money orders purporting to draw on United States Treasury

accounts. However, as an adherent to the “Redemption Theory,” which is

premised on the purported bankruptcy of the federal government and elimination

of the gold standard in the 1930’s, Levy testified that he genuinely believed he was

entitled to create money orders drawing on funds held on his behalf by the United

States Treasury and, therefore, he did not willfully violate the law. On appeal, he

contends that: (1) the money orders he created were so “clearly bogus on their

face” that he could not possibly have intended to deceive; and (2) because the

money orders were issued to pay the debts of others—namely, his girlfriend and

her father—he would not have directly benefited from the offenses, even if the

money orders were accepted and cashed as authentic.

      Where, as here, a defendant moves for judgment of acquittal under

Fed.R.Crim.P. 29(a) at the close of the evidence, we review de novo the

sufficiency of the evidence necessary to support a conviction. See United States v.

Acosta, 421 F.3d 1195, 1197 (11th Cir. 2005). We take the evidence in the light

most favorable to the government and resolve any conflicts in its favor. United


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States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). In assessing the

sufficiency of the evidence, “the issue is not whether a jury reasonably could have

acquitted but whether it reasonably could have found guilt beyond a reasonable

doubt.” Id. at 1285 (internal quotation marks omitted). Finally, we assume that

the jury made credibility choices in a way that supports the verdict. Id.

Importantly, “a statement by a defendant, if disbelieved by the jury, may be

considered as substantive evidence of the defendant's guilt.” United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 1995) (emphasis omitted).

      To obtain a conviction under 18 U.S.C. § 514(a), the government must prove

three elements: (1) the defendant did or attempted to draw, print, process, produce,

publish, or otherwise make a false or fictitious instrument, document, or other item

within the United States; (2) the fictitious instrument, document, or item appeared,

represented, purported, or contrived through scheme or artifice, to be an actual

security or other financial instrument issued under the authority of the United

States; and (3) the defendant acted with the intent to defraud. 18 U.S.C.

§ 514(a)(1). “Intent to defraud has often been defined as the specific intent to

deceive or cheat, for the purpose of either causing some financial loss to another,

or bringing about some financial gain to one's self.” United States v. Klopf, 423

F.3d 1228, 1240 (11th Cir. 2005) (internal quotation marks omitted). 1


      1
          Klopf dealt with the “intent to defraud element ” under 18 U.S.C. §§ 1028 and 1029,
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       Where Congress focuses on the fraudulent intent of the violator in a criminal

statute, the negligence of the victim in failing to discover a fraudulent scheme

cannot be a defense to criminal conduct. See United States v. Svete, 556 F.3d

1157, 1161-66 (11th Cir. 2009) (en banc) (rejecting defendant’s argument that

conviction for mail fraud under 18 U.S.C. § 1341 required proof of a scheme

calculated to deceive a person of ordinary prudence). In other words, “[a] fanciful

scheme may nonetheless be a scheme to defraud. Id. at 1162. Moreover, a party is

no less culpable for a fraudulent scheme if he intends the benefits of the fraud to

accrue to third parties. See United States v. Sorich, 523 F.3d 702, 709-11 (7th Cir.

2008) (rejecting appellant’s argument that a fraudulent scheme to benefit third

parties could not support a conviction under honest services mail fraud statute, 18

U.S.C. § 1346).

       Here, we conclude from the record that the evidence adduced at trial

supported Levy’s convictions. The government presented evidence, and Levy

himself admitted, that he deliberately created and attempted to pass fictitious

instruments under the authority of the United States, leaving only the issue of

criminal intent in question. Although he testified that he had acted in good faith

and without the intent to defraud, a number of circumstances presented at trial


rather than 18 U.S.C. § 514. This Court has not specifically addressed the meaning of “intent to
defraud” under § 514, but Levy has provided no reason to suggest that Klopf’s definition ought
not to apply thereunder. In any event, the district court’s charge, to which Levy did not object,
was entirely consistent with Klopf.
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pointed to the opposite: (1) he never received a response from the Secretary of

Treasury regarding his supposed accounts; (2) none of the money orders he drafted

was ever successfully cashed by a payee; (3) he used his girlfriend’s address on

several blank money orders rather than his prison post office number; (4) he

erroneously labeled several blank money orders as “special,” privileged mail; (5)

he created authentic Treasury investment accounts after he was being investigated

for fraud; (6) and he admitted to having lied by pleading guilty in his prior

convictions. The jury was free to disbelieve Levy’s testimony regarding good

faith, particularly in light of this evidence, and to consider his statements as

substantive evidence of his intent to defraud. Brown, 53 F.3d at 314.

      Levy’s two arguments on appeal do not undermine the jury’s verdict. First,

he now claims that no reasonable person could have believed the money orders

were authentic, yet this is belied by the extremely detailed steps he took to create

the instruments at issue, and conflicts with his testimony at trial that he genuinely

intended the money orders to be received in payment for various obligations.

Furthermore, for purposes of criminal liability, it is the intent of the offender that

matters, not the reasonableness of his efforts. See Svete, 556 F.3d at 1161-66.

Equally unavailing is Levy’s second contention that any reasonable inference of

intent is barred because he was not the intended beneficiary of the fictitious money

orders. All but one of the money orders at issue related to Patricia Escobar’s


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condominium, which, according to Levy’s testimony at trial, he considered to be

his own. In any event, the intent to defraud does not require a personal benefit.

See Sorich, 523 F.3d at 709-11.

      For the reasons stated above, sufficient evidence was presented at trial from

which the jury could conclude beyond a reasonable doubt that Levy possessed the

requisite intent to defraud in this case and was therefore guilty of financial

instrument fraud under 18 U.S.C. § 514(a). Accordingly, we affirm his

convictions.

      AFFIRMED.




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