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                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 18-12089
                               ________________________

                         D.C. Docket No. 1:17-cr-20216-JAL-1

UNITED STATES OF AMERICA,

                                                                         Plaintiff - Appellee,

versus

BRIGITH DAYANA GOMEZ,

                                                                      Defendant - Appellant.

                               ________________________

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

                                    (February 14, 2020)

Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER, * District
Judge.

COOGLER, District Judge:




*
  Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama,
sitting by designation.
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      Brigith Dayana Gomez appeals her convictions, following a jury trial, for

one count of conspiracy to transmit an interstate extortionate communication, in

violation of 18 U.S.C. §§ 371 and 875(d); three counts of transmission of

extortionate communications, in violation of 18 U.S.C. §§ 875(d) and 2; and one

count of traveling in interstate or foreign commerce with intent to promote the

unlawful activity of extortion, in violation of Fla. Stat. § 836.05, and thereafter

performing acts to promote that unlawful activity, in violation of 18 U.S.C. §§

1952(a)(3) and 2.

      The evidence at trial showed that from approximately February 18, 2017,

through March 7, 2017, Gomez and her co-defendant, Carolina Del Carmen

Roldan, threatened to release to the media personally damaging photos and videos

of Ivan Gabriel Aguilera, the son of the famous, now-deceased Mexican singer

Juan Gabriel, unless Aguilera paid them $50,000. Gomez and Roldan coordinated

their extortionate plan as documented in text messages and then sent the threat via

text to Aguilera. Aguilera showed the threat to his lawyer, who engaged in a series

of recorded communications and negotiations with Roldan and Gomez. Ultimately,

Aguilera and his lawyer alerted the FBI; the FBI recorded additional

communications; Gomez flew from Los Angeles to Miami to collect the $50,000;

and Gomez was arrested. Gomez consented to a search of her cell phone, which

revealed substantial communications confirming the conspiracy.


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      On appeal, Gomez challenges the sufficiency of the evidence to support her

convictions and the failure of the district court to give a jury instruction she

requested regarding the 18 U.S.C. §§ 1952(a)(3) and 2 charge. After careful review

and having had the benefit of oral argument, we conclude that the jury had

sufficient evidence to convict Gomez on all five counts and that the district court’s

ruling on the jury instruction was correct. We thus affirm.

                                           I.

                                          A.

      In its case-in-chief at trial, the government undertook to establish the

following. Beginning in approximately 2014, Aguilera partied with a group of

women, including Roldan and Gomez, while he accompanied his father on his

concert tours. Although he was married, Aguilera had affairs and exchanged

sexually explicit photos with various women.

      When Gabriel died unexpectedly in August 2016, Aguilera began receiving

intense media coverage, as he was reported to be the sole heir of his father’s

fortune. Shortly thereafter, Gomez, Roldan, and other women in their social group

began to discuss via text messages selling images and videos of Aguilera to the

media. The women exchanged pictures and videos of Aguilera naked and kissing

women. Gomez specifically wrote that they should describe to the media that




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Aguilera was exploiting his deceased father to maintain his lifestyle of “sex,

extravagance [and] women.”

      Ultimately, Gomez and Roldan decided to attempt an extortionate plan

without the other women. Hoping to capitalize on Aguilera’s increased visibility,

they timed their threatening communication with Aguilera to coincide with a large

tribute concert that was to be held on February 18, 2017, to honor Gabriel’s legacy.

On the morning of the concert, Gomez instructed Roldan to send Aguilera a text

message threatening to reveal photos and videos to the media unless they were

paid. Gomez further directed Roldan to attach videos “so that he sees that we are

not playing games.”

      Just before the concert was to begin on February 18, Aguilera received a text

message on his cell phone that read:

      Hello Ivan, how are you? You know, we have some information
      on you which would be very interesting for the media, for social
      media, as well as for your wife and your wife’s brother. We are close
      to negotiating this information with Telemundo, but we decided to
      contact you first. There’s no point in reminding you not to try to do
      anything against the person receiving the exchange because someone
      else has everything and will disclose it to the public, meaning this is
      between you and me. The issue is that we have some very
      compromising videos and photos of you and your brother-in-law in
      Las Vegas; it would be a shame to reveal how you enjoy your father’s
      inheritance. May he rest in peace. I will send you a portion of what I
      have, only a portion because I have a lot more photos and videos. Do
      we negotiate with you or do you prefer that I go to the media?




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Attached to the text message were four videos showing Aguilera partying with a

group of women, including Gomez and Roldan.

      Aguilera viewed the message as a threat to his reputation, his marriage, and

his family’s business. He told his wife about the threat, and she echoed his fear that

their family’s business would suffer. Aguilera showed the message to his lawyer,

Guillermo Pous, and they decided that Pous would try to resolve the situation by

responding that he was interested in negotiating. Meanwhile, Roldan told Gomez

that she had sent the text as directed, and they both agreed not to “back down.”

      On February 20, 2017, Pous and Roldan spoke on the phone three times,

ultimately reaching a deal whereby Aguilera would pay $50,000 in exchange for

Roldan and Gomez not releasing the photos and videos to the media. Roldan

suggested to Pous that she was working for an unidentified “man” and refused to

give him her full name, going by Carmen alone.

      Over the next two weeks, Roldan spoke on the phone with Pous nearly

twenty times, with Gomez often directing Roldan’s strategy. As Pous attempted to

buy time so that he could inform law enforcement authorities, Roldan and Gomez

became increasingly aggressive in tone. For example, on February 28, Roldan told

Pous that the “man” would release the materials to the media the next day.

      During this time Gomez was also communicating with her sister via text

messages and phone calls, seeking advice on how to go about obtaining the money.


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In those communications, Gomez described what she and Roldan were doing as

“blackmailing” Aguilera and referred to herself and Roldan as “swindlers.”

Gomez’s sister warned Gomez not to reveal her identity or to collect the money in

person because that could mean going to “jail” for “extortion.” Gomez’s sister also

recommended that Gomez and Roldan request wire transfers to two accounts so as

not to raise red flags with any banks. However, Gomez told her sister that she

wanted to fly to Miami herself to pick up the cash because getting another person

involved to handle those aspects of the plan would mean they would have to split

the profits further.

       On March 1, 2017, Gomez and Roldan traveled from Los Angeles to the

Telemundo television network in Miami to try to sell the photos and videos.

Telemundo offered only $5,000, so Gomez decided she would give Pous a few

more days to come up with the $50,000.

       Pous ultimately reported Gomez and Roldan’s threats to FBI agents, who

met with Aguilera and his wife and facilitated additional recorded phone calls. On

March 6, 2017, Pous and Roldan spoke on the phone twice. Roldan revealed her

full name and told him that she was working for Gomez. Roldan also gave Pous

Gomez’s phone number so Pous could call Gomez directly to coordinate Gomez’s

travel to Miami to collect the money. When Pous called Gomez later that day,

Gomez said that she had flown to Miami on her own expense the week before with


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the intent of getting paid, and therefore that she would return to Miami a second

time only if Pous paid for her flight and guaranteed payment. Pous agreed,

purchasing a plane ticket in Gomez’s name from Los Angeles to Miami for the

next day and sent her an email confirming the details. Gomez then took the flight

as planned and was arrested by the FBI about twenty minutes after she arrived at

the Miami airport.

      Following her arrest, Gomez consented to a search of her cell phone. The

FBI found extensive written and audio communications with Roldan establishing

the conspiracy dating back to September 2016.

                                         B.

      On March 23, 2017, a Southern District of Florida grand jury returned an

indictment charging Gomez and Roldan, in Count 1, with conspiracy to transmit an

interstate extortionate communication, in violation of 18 U.S.C. §§ 371 and 875(d);

in Counts 2-4, with transmission of extortionate communications, in violation of 18

U.S.C. §§ 875(d) and 2; and in Count 5, with traveling in interstate or foreign

commerce with intent to promote the unlawful activity of extortion, in violation of

Fla. Stat. § 836.05, and thereafter performing acts to promote that unlawful

activity, in violation of 18 U.S.C. §§ 1952(a)(3) and 2.

      Roldan pled guilty to Count 1 in exchange for the dismissal of the other

counts against her. Gomez’s trial began on January 24, 2018. The government


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called Aguilera, his wife, Pous, and four FBI special agents involved in the

investigation. Numerous audio and text messages and emails were admitted. The

defense called two witnesses: Ricdamis Garcia, the producer for Telemundo who

met with Gomez and Roldan during the conspiracy, and Ivonne Solorzano, one of

the women with whom Aguilera had an affair. Gomez attempted to establish

through their testimony and through cross-examination of government witnesses

that she was not guilty of extortion because Aguilera’s reputation was already

tarnished and that she played a minimal role in the offense.

      Gomez was found guilty as charged of each count of the indictment. Post-

verdict, Gomez, reiterating the arguments she asserted after the close of the

government’s case-in-chief, moved unsuccessfully for a judgment of acquittal.

      On May 9, 2018, the district court sentenced Gomez to 20 months’ and

fifteen days’ imprisonment as to Counts 1-5, all to run concurrently, followed by

two years’ supervised release. Judgment was entered the following day. This

appeal followed.

                                         II.

                                         A.

      Gomez challenges the sufficiency of the evidence on all counts of

conviction. This Court reviews de novo the sufficiency of evidence, accepting all

reasonable inferences in favor of the jury’s verdict. United States v. Diaz-Boyzo,


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432 F.3d 1264, 1269 (11th Cir. 2005) (per curiam). “The evidence is sufficient so

long as a reasonable trier of fact, choosing among reasonable interpretations of the

evidence, could find guilt beyond a reasonable doubt.” Id. (quoting United States v.

Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004)). We conclude that the evidence

presented at trial was sufficient to convict Gomez on all five counts of the

indictment.

      Count 1 charged Gomez with knowingly and willfully conspiring to extort

money from Aguilera by use of interstate communications, in violation of 18

U.S.C. §§ 371 and 875(d). The indictment specified the overt acts as including the

transmission of the first threat via text message to Aguilera on February 18,

Gomez’s call on March 6 to Pous to arrange her travel to Miami, and Gomez’s

flight from Los Angeles to Miami on March 6 to collect the cash. To prove the §

371 conspiracy, the government was required to establish “(1) the existence of an

agreement to achieve an unlawful objective; (2) the defendants’ knowing and

voluntary participation in the agreement; and (3) the commission of an act in

furtherance of the agreement.” United States v. Adkinson, 158 F.3d 1147, 1153

(11th Cir. 1998) (emphasis removed).

      The government presented overwhelming evidence of Gomez’s guilt at trial,

much of it in the form of Gomez’s own words in written text messages and

recorded calls establishing the extortionate plot and her willing participation in it.


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Gomez disclaims any criminal intent and attempts to minimize her role in the

scheme, but the evidence showed that Gomez directed and assisted Roldan

throughout the conspiracy. Gomez instructed Roldan on what to say in the first text

message Roldan sent to Aguilera on February 18, after which the two agreed they

were not “back[ing] down,” and over the next two weeks, Gomez stayed in close

contact with both Roldan and her sister via text, discussing how to accelerate the

timeline for payment. On March 6, Gomez spoke directly with Pous to finalize the

deal and then traveled to Miami to collect the extortionate demand. Additionally,

Aguilera, his wife, and Pous testified at length that they considered the text

messages and other communications true threats to the reputation and livelihood of

Aguilera and his family. The evidence clearly supports the guilty verdict on Count

1.

      The record also supports the jury’s verdicts of guilt on Counts 2, 3, and 4,

each of which charged Gomez with transmitting an extortionate threat in

interstate or foreign commerce, in violation of 18 U.S.C. §§ 875(d) and 2. Section

875(d) provides:

      Whoever, with intent to extort from any person, firm, association, or
      corporation, any money or other thing of value, transmits in interstate
      or foreign commerce any communication containing any threat to
      injure the property or reputation of the addressee or of another or the
      reputation of a deceased person or any threat to accuse the addressee
      or any other person of a crime, shall be fined under this title or
      imprisoned not more than two years, or both.


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18 U.S.C. § 875(d). To prevail under a theory of aiding and abetting pursuant to §

2, the government was required to prove that “(1) the substantive offense was

committed by someone; (2) the defendant committed an act which contributed to

and furthered the offense; and (3) the defendant intended to aid in its commission.”

United States v. Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016) (quoting United

States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000)).

      Count 2 is based upon the first text message that Roldan sent to Aguilera on

February 18 threatening to release images and videos if Aguilera did not pay.

Although Roldan sent the message, the evidence of Gomez’s actions is sufficient to

sustain Gomez’s conviction on this count under the aiding and abetting theory.

Before Roldan sent the message, she and Gomez discussed their strategy and the

substance of the message in detail and confirmed to each other after Roldan sent

the message that they were not “back[ing] down.”

      Count 3 is based on three recorded calls on February 20 between Roldan and

Pous, in which Roldan pretended to be working for an unidentified “man”—whom

she later revealed was in fact Gomez—and specified that “he” wanted $50,000 in

exchange for not turning over photos and videos of a compromising nature to the

media. The evidence showed that Roldan and Gomez remained in close contact via

text while these calls were happening. Also during this period, Gomez specifically




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discussed with her sister the mechanics of the plan. The record thus contains ample

evidence of Gomez’s knowing facilitation of the February 20 threats.

      Count 4 is based on three calls on March 6—the first two between Pous and

Roldan and the third between Pous and Gomez. In those final calls, Roldan

revealed to Pous her own and Gomez’s identities. Then, Gomez told Pous that she

would return to Miami a second time only if Pous paid for her flight and

guaranteed payment. Gomez asserts that she was merely making travel

arrangements and nothing she said could be interpreted as a threat, but reasonable

jurors could disagree and instead find that the purpose of these calls was to finalize

the extortionate agreement.

      Count 5 charged Gomez with violating the Travel Act, which, among other

things, makes it a crime to “travel[] in interstate or foreign commerce . . . with

intent to . . . promote, manage, establish, carry on, or facilitate the promotion,

management, establishment, or carrying on, of any unlawful activity, and thereafter

[to] perform[] or attempt[] to perform [an act of unlawful activity].” 18 U.S.C. §

1952(a)(3). The statute lists a number of predicate crimes that qualify as unlawful

activities, including “extortion, bribery, or arson” in violation of state or Federal

law. Id. § 1952(b)(2). The district court instructed the jury according to this

Court’s pattern offense instruction, which listed the elements of 18 U.S.C.

§1952(a)(3) as follows: (1) Gomez traveled in interstate or foreign commerce on or


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about the dates and between the places described in the indictment; (2) Gomez

traveled with the specific intent to promote, manage, establish or carry on an

unlawful activity; and (3) while traveling, Gomez knowingly committed an act to

promote, manage, establish, or carry on an unlawful activity. See Eleventh Circuit

Pattern Jury Instructions (Criminal Cases), 71 (2013). The jury was further

instructed that “unlawful activity” includes “any business enterprise involving

extortion,” and that “[u]nder [Florida] law [making an extortionate threat to a

person’s reputation] is unlawful.” See id.

      Although Gomez characterizes her flight to Miami to collect the $50,000 as

isolated and innocuous, reasonable jurors could instead infer from the evidence

that over the course of several weeks, Gomez and Roldan threatened Aguilera with

the release of compromising images if he did not pay, and that Gomez flew across

the country at Pous’s expense with the specific criminal intent to collect the

demand in person. We are satisfied that the jury’s verdict as to Count 5 is well

supported by the evidence.

                                        B.

      Gomez next contends that the district court erred in refusing to instruct the

jury in accordance with instructions she requested. This Court reviews the district

court’s refusal to give a requested jury instruction for abuse of discretion. United

States v. Jordan, 582 F.3d 1239, 1247 (11th Cir. 2009). “Such refusal constitutes


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reversible error if: ‘(1) the requested instruction was a correct statement of the law,

(2) its subject matter was not substantially covered by other instructions, and (3) its

subject matter dealt with an issue in the trial court that was so important that failure

to give it seriously impaired the defendant’s ability to defend [herself].’” Id. at

1247–48 (quoting United States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir.

2006)). We find no abuse of discretion here.

       Gomez’s requested instruction related to the applicable mens rea under 18

U.S.C. § 1952(a)(3), the Travel Act violation charged in Count 5. Gomez’s

argument at the charge conference was that by referencing Florida’s extortion

statute, Fla. Stat. § 836.05 (2014), in the indictment, the government imposed on

itself the burden of proving not only the mens rea required under § 1952(a)(3)—

knowingly traveling with the specific intent to promote the unlawful activity of

extortion—but also that she acted with the state-specific mens rea of “actual

malice,” which one Florida court had found necessary under Fla. Stat. § 836.05.1

The language Gomez proposed adding to the instruction was as follows:

       [U]nder Florida law, making an extortionate threat to reputation is
       unlawful. However, Florida law requires that the government prove

1
         Fla. Stat. § 836.05 provides, in part: “Whoever, either verbally or by a written or printed
communication, . . . maliciously threatens an injury to the . . . reputation of another, or
maliciously threatens to expose another to disgrace, or to expose any secret affecting another . . .
with intent thereby to extort money or any pecuniary advantage whatsoever . . . shall be guilty of
a felony . . . .” Florida’s Fifth District Court of Appeal has defined the term “maliciously” under
that statute as acting with “ill will, hatred, spite, or evil intent.” Calamia v. State, 125 So. 3d
1007, 1010 (Fla. Dist. Ct. App. 2013).

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       beyond a reasonable doubt that the defendant made the extortionate
       threat with actual malice. That means the government must prove the
       defendant made the threat with ill will, hatred, spite, or an evil intent.

The district court denied Gomez’s request, instead instructing the jury using this

Court’s pattern offense instruction, which specified that “unlawful activity”

includes “extortion” and “[u]nder Florida law, making an extortionate threat to a

person’s reputation is unlawful.”

       The district court did not abuse its discretion in declining to give Gomez’s

requested instruction because it was not a correct statement of the law. Jordan, 582

F.3d at 1247. In a case where the relevant unlawful activity underlying the Travel

Act violation was arson, the former Fifth Circuit rejected a defendant’s argument

that the district court erred by not providing the jury with the state law definition of

the offense. United States v. Conway, 507 F.2d 1047, 1051–52 (5th Cir. 1975)

(“There was sufficient evidence upon which the jury could find that the appellant

traveled in interstate commerce with intent to bomb and/or burn a Maryland

building. There is no requirement that the jury be instructed on the Maryland

definition of arson and there is no reversible error here.”). 2 In so holding, the court

relied upon the United States Supreme Court’s decision in United States v.

Nardello, 393 U.S. 286 (1969), which addressed the Travel Act’s prohibition


2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
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against extortion. Conway, 507 F.2d at 1051–52. The defendants in Nardello were

indicted for their participation in a scheme to obtain money from victims by threats

to expose alleged homosexual conduct. 393 U.S. at 287. The indictments charged

that the defendants traveled in interstate commerce to promote their activities,

which the indictments referred to as “the unlawful activity of blackmail, in

violation of the laws of the Common-wealth of Pennsylvania.” Id. at 287–88. The

Pennsylvania statutes distinguished between “extortion” and “blackmail,” with

“extortion” applicable only to the conduct of public officials. Id. at 288. The

defendants argued that the indictments were defective because they were not public

officials. Id. The federal district court agreed and dismissed the indictments. Id. On

direct appeal to the Supreme Court by the United States pursuant to 18 U.S.C. §

3731, id. at 288–89, the Court “decline[d] to give the term ‘extortion’ [in § 1952(b)

such] an unnaturally narrow reading,” id. at 296. As the Court explained, so long

as the acts for which a defendant has been indicted fall within the generic term of

extortion as used in the Travel Act—which the Court defined as “obtaining

something of value from another with his consent induced by the wrongful use of

force, fear, or threats,” id. at 290—then such acts constitute a violation of the

Travel Act’s prohibition, regardless of the specific state label given to that

unlawful act. Id. at 296.




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      We are bound by the holdings of Nardello and Conway. Accordingly, there

is no requirement that the jury be instructed on the state-specific definition of the

predicate crime. Conway, 507 F.2d at 1051–52; see also Martinelli, 454 F.3d at

1313–14 (drawing from Conway in rejecting similar claim in money laundering

context). “[T]he inquiry is not the manner in which States classify their criminal

prohibitions but whether the particular State involved prohibits the extortionate

activity charged.” Nardello, 393 U.S. at 295. Here, the district court properly

instructed the jury that Florida law prohibits making extortionate threats to one’s

reputation. No more was required of the district court.

                                         III.

      Accordingly, the judgment of the district court is

      AFFIRMED.




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