          Case: 15-12035   Date Filed: 02/14/2017   Page: 1 of 18


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12035
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:14-cr-00190-SCB-EAJ-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

STEPHEN MAYER,

                                                         Defendant-Appellant.

                      ________________________

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

                           (February 14, 2017)



Before WILLIAM PRYOR, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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      Stephen Mayer appeals his convictions and sentence after a jury convicted

him of one count of conspiracy to commit wire fraud affecting a financial

institution, in violation of 18 U.S.C. §§ 1343 and 1349, and eight counts of wire

fraud affecting a financial institution, in violation of 18 U.S.C. § 1342. Mayer

asserts several issues on appeal, which we address in turn. After review, we affirm

Mayer’s convictions, custodial sentence, and restitution, but vacate the forfeiture

order and remand for further proceedings.

                                          I.

      Mayer first contends the district court impermissibly prevented him from

obtaining alternative advice and imposed a prior restraint on his speech when it

barred him from consulting with Daniel Jonas and Akiva Fischman, lawyers who

were not admitted to practice in the Middle District of Florida and who did not

intend to be counsel of record. He asserts that, by endorsing his appointed

counsel’s attempts to prohibit Jonas and Fischman from contacting him, the court

violated his right to free association. According to Mayer, the district court further

violated his rights to counsel and due process by ordering the return of discovery

documents to the Government. Finally, he faults the district court for failing to

explain that he could proceed pro se with Jonas serving as advisory counsel.

      The district court did not violate Mayer’s constitutional rights. See United

States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004) (reviewing questions of


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constitutional law de novo). Because Mayer was appointed counsel, he had no

right to counsel of his choice or a second legal opinion, and he cannot show the

district court violated his right to counsel by refusing to let Jonas or Fischman

represent him when they were unwilling to be counsel of record. See United States

v. Gonzalez-Lopez, 548 U.S. 140, 144, 151 (2006) (explaining under the Sixth

Amendment, defendants who do not require appointed counsel have the right to

counsel of their choice, but the right does not extend to indigent criminal

defendants who require appointed counsel); Wheat v. United States, 486 U.S. 153,

159 (1988) (stating a defendant may not insist on representation by an attorney

who declines to represent him); United States v. Garey, 540 F.3d 1253, 1263-64

(11th Cir. 2008) (en banc) (“In practical terms, [ ] defendants who lack the means

to hire a private attorney must either accept the counsel appointed to represent

them or represent themselves.”).

      The court also did not violate Mayer’s right to self-representation, as he

failed to clearly invoke his right to proceed pro se. See Cross v. United States, 893

F.2d 1287, 1290 (11th Cir. 1990) (stating to invoke the right to self-representation,

the defendant must “clearly and unequivocally assert the desire to represent

himself”). Although the defendant need not “recite some talismanic formula,” he

must “state his request, either orally or in writing, unambiguously to the court so

that no reasonable person can say that the request was not made.” Stano v.


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Dugger, 921 F.2d 1125, 1143 (11th Cir. 1991) (en banc) (emphasis omitted)

(quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986)).

      Mayer had no constitutional right to have a particular defense theory

presented at trial, and, in any event, he had the opportunity to present an alternative

narrative by testifying. See Faretta v. California, 422 U.S. 806, 820 (1975)

(stating when a defendant chooses to be represented by an attorney, “law and

tradition may allocate to the counsel the power to make binding decisions of trial

strategy in many areas”). Mayer has provided no authority in support of his First

Amendment arguments, nor has he shown that the alleged violations of his First

Amendment rights rendered his trial unfair. As to the return of the discovery files,

Mayer’s reorganization of these documents was not work product, and he has not

provided any authority suggesting that ordering third parties who are not counsel

of record to return discovery documents is a constitutional violation. See United

States v. Davis, 636 F.2d 1028, 1040 (5th Cir. Unit A Feb. 12, 1981) (explaining

materials prepared by a client are not protected by the work product doctrine).

Finally, because he does not present any specific arguments regarding his right to

effective representation, he abandoned the argument. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (stating if an appellant

makes only passing references to a claim or raises it in a perfunctory manner

without providing support, the argument is abandoned).


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                                           II.

      Next, Mayer alleges the district court plainly erred by admitting Special

Agent Ellen Wilcox’s testimony. According to Mayer, Wilcox provided

impermissible overview testimony by testifying to facts without personal

knowledge, and the Government did not present any evidence to confirm the

accuracy of those facts. Mayer asserts Wilcox’s testimony regarding what he said

or did was inadmissible under both Federal Rules of Evidence 602 and 801, and

contends the admission of her testimony was prejudicial because overview

testimony inherently presents serious dangers to a fair trial. Moreover, he alleges,

Wilcox’s testimony “squarely implicate[d]” the problem of juries placing greater

weight on evidence perceived to have the imprimatur of the government. Finally,

Mayer argues that, if her testimony was based on interviews with third parties, the

Government violated the Confrontation Clause by presenting her testimony

without allowing him to cross-examine these witnesses.

      When a party fails to contemporaneously object to the admission of

evidence, we review only for plain error. United States v. Turner, 474 F.3d 1265,

1275 (11th Cir. 2007). To demonstrate plain error, the appellant must establish

that there was “(1) error, (2) that is plain and (3) that affects substantial rights.” Id.

at 1276 (quotation omitted). If those conditions are met, we “may then exercise

[our] discretion to notice a forfeited error, but only if (4) the error seriously affects


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the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

omitted).

       Mayer has not demonstrated plain error as he cannot show that any alleged

error in admitting Wilcox’s overview testimony affected his substantial rights. See

United States v. Khan, 794 F.3d 1288, 1300 (11th Cir. 2015) (stating overview

testimony occurs when a government witness testifies as to the results of a criminal

investigation, usually including aspects of the investigation in which the witness

did not participate, before the government has presented supporting evidence).

The majority of Wilcox’s inculpatory testimony regarding the eight properties at

issue in Counts 2 through 9 of the superseding indictment was corroborated by

documentary evidence that had been admitted at the beginning of trial, prior to her

testimony. To the extent any of Wilcox’s testimony was not based on records

already entered into evidence, Mayer has not shown a reasonable probability he

would have been acquitted of any of the charges 1 had this testimony been


       1
           To convict a defendant of wire fraud, the government must show (1) the defendant
intentionally participated in a scheme to defraud, and (2) use of interstate wires in furtherance of
the scheme. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). To show a scheme
to defraud, the government must present evidence of material misrepresentations or the omission
or concealment of material facts. Id. at 1270-71. “An intent to defraud may be found when the
defendant believed that he could deceive the person to whom he made the material
misrepresentation out of money or property of some value.” United States v. Maxwell, 579 F.3d
1282, 1301 (11th Cir. 2009) (quotation omitted). A jury may infer such intent from the
defendant’s conduct. Id. To prove a conspiracy, the government must show that (1) two or more
persons agreed to commit a crime, and (2) the defendant knowingly and voluntarily joined or
participated in the conspiracy. United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005).
The existence of an agreement may be proven by circumstantial evidence, including inferences
from the conduct of the alleged conspirators. Id.
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excluded, given that the Government’s other evidence of guilt was overwhelming.

See United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (stating

appellant must show there would have been a reasonable probability of a different

result had the error not occurred, and if the effect of the error is uncertain or

indeterminate, the appellant has not met his or her burden of showing substantial

rights were affected).

                                          III.

      Mayer further asserts his trial counsel was ineffective. We decline to

consider this claim, as the record is insufficiently developed. See United States v.

Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (explaining we generally do not

consider claims of ineffective assistance of counsel on direct appeal if the district

court did not entertain the claim or develop a factual record). For example,

although Mayer faults his trial counsel for failing to retain expert witnesses or call

defense witnesses, he has not explained how any of these witnesses would have

testified, nor does the record establish what the substance of the proposed

witnesses’ testimony would have been. Thus, there is no way of knowing whether

counsel’s performance was deficient or whether Mayer was prejudiced. See

United States v. Moran, 778 F.3d 942, 965 n.11 (11th Cir. 2015) (stating to prevail

on an ineffective assistance claim on direct appeal, the defendant must show both

that his counsel’s performance was deficient and that he was prejudiced by the


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deficiency). We also decline to remand the case to the district court for an

evidentiary hearing, as a § 2255 motion to vacate is the appropriate means by

which to assert an ineffective assistance claim. See Patterson, 595 F.3d at 1328

(stating even if the record contains some indication of deficiencies in counsel’s

performance, the preferred means of reviewing an ineffective assistance claim is

through a 28 U.S.C § 2255 motion to vacate sentence).

                                         IV.

      Mayer contends the district court abused its discretion by admitting evidence

he failed to file personal and corporate federal income tax returns, which he asserts

is inadmissible under Federal Rule of Evidence 404(b). According to Mayer, this

evidence was irrelevant to the only intent, motive, or knowledge issues in the case,

which centered on whether he knew the credit partners “could not lawfully borrow

money using the method they employed.” Moreover, he argues, the Government

did not calculate whether he was even required to file a personal tax return.

      Assuming arguendo the district court abused its discretion in admitting

evidence Mayer had not filed personal or corporate income tax returns, Mayer has

not shown that this error warrants reversal, as any error was harmless. See United

States v. Hubert, 138 F.3d 912, 914 (11th Cir. 1998) (explaining if we conclude a

district court abused its discretion in admitting evidence in violation of Rule

404(b), we then determine whether the error was harmless). As discussed above,


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the Government presented ample evidence of guilt. This evidence was sufficient

for a reasonable jury to find Mayer guilty beyond a reasonable doubt even if the

district court had excluded evidence he failed to file personal and corporate federal

income tax returns. See id. (stating when the other evidence against the defendant

is sufficiently substantial for a reasonable jury to find the defendant guilty beyond

a reasonable doubt, any error in admitting evidence in violation of Rule 404(b) is

harmless).

                                         V.

      Mayer next asserts the cumulative effect of the alleged errors previously

described deprived him of his right to a fair trial. Assuming arguendo the district

court admitted some evidence in error, in light of the overwhelming untainted

evidence against Mayer, any potential error was harmless. United States v. Hesser,

800 F.3d 1310, 1329-30 (11th Cir. 2015).

                                         VI.

      In his final claim, Mayer raises several issues regarding his sentence. We

address each alleged error in turn.

                                         A.

      First, Mayer challenges the loss amount enhancement, contending the

calculated loss amounts with respect to four properties “were based upon no

evidence at all.” As to two of the properties, Mayer states there is no evidence the


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mortgages were still outstanding at the time of the tax sales. As to the other two

properties, Mayer alleges the mortgages “are still in place,” and thus the lenders

have not suffered any losses.

       Under the Guidelines, a defendant may receive an eighteen-level

enhancement if the actual or intended loss of the offense conduct was greater than

$2,500,000 but did not exceed $7,000,000. U.S.S.G. § 2B1.1(b)(1)(J) (Nov.

2014)2; id. § 2B1.1 comment. (n.3(A)). The government must prove the

attributable loss by a preponderance of the evidence, and this burden must be

established by reliable and specific evidence. United States v. Dabbs, 134 F.3d

1071, 1081 (11th Cir. 1998). The Guidelines do not require a precise

determination of the loss, however. United States v. Cavallo, 790 F.3d 1202, 1232

(11th Cir. 2015). Rather, the district court need only make a reasonable estimate of

the loss based on the available information. Id.

       The district court did not plainly err in calculating the loss amount. See

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003) (stating if a defendant

failed to clearly state the grounds for an objection in the district court we review

only for plain error). As to the properties located at 2914 North 17th Street and

913 East 28th Avenue, Wilcox’s explanation at trial—that the mortgages remained

outstanding when the County issued a tax deed on the properties, resulting in “total

       2
         All citations are to the November 2014 version of the Guidelines, under which Mayer
was sentenced.
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loss[es]” to the lenders—refutes Mayer’s contention that there is no evidence the

mortgages with respect to these properties remained in place at the time of the tax

sales. Wilcox’s trial testimony also belies his assertion the lenders have not

realized any losses as to the other two properties (915 East 23rd Avenue and 3510

North 11th Street) because the mortgages remain outstanding. To the extent Mayer

intends to challenge the loss calculations for the remaining eight properties, he

abandoned the argument because he did not develop it or point to any specific

examples in which there was insufficient reliable evidence upon which the district

court could base its loss calculations. See Sapuppo, 739 F.3d at 681.

                                         B.

      Second, Mayer challenges the four-level enhancement he received for being

a leader or organizer of the scheme. Noting only three co-conspirators admitted to

knowingly participating in the scheme, he asserts the sole evidence supporting a

finding that others knowingly participated in criminal activity was “Wilcox’s

hearsay testimony.”

      The commentary to U.S.S.G. § 3B1.1 defines a “participant” as “a person

who is criminally responsible for the commission of the offense, but need not have

been convicted.” U.S.S.G. § 3B1.1, comment. (n.1). To apply the § 3B1.1

enhancement, the district court must determine, by a preponderance of the

evidence, that the individual or individuals were criminally responsible. United


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States v. Williams, 527 F.3d 1235, 1248-49 (11th Cir. 2008). Those whose role

was de minimis will not be counted. Id. at 1249. The defendant himself is

considered one of the five participants. United States v. Holland, 22 F.3d 1040,

1045 (11th Cir. 1994).

      The district court did not err in applying a four-level role enhancement. See

Williams, 527 F.3d at 1249 (11th Cir. 2008) (reviewing the district court’s

application of § 3B1.1 to determine a person is a “participant” de novo and the

underlying factual findings for clear error). The evidence at trial demonstrated that

Naomi D’Esop acted as a straw buyer and obtained mortgages to buy several

properties, which she could not afford to pay off. She testified that, in buying

properties and obtaining the requisite mortgages, she signed numerous documents

containing false statements. Her testimony was sufficient to establish by a

preponderance of the evidence that she was a knowing participant in Mayer’s

scheme. See Williams, 527 F.3d at 1248-49. Mayer concedes that three others

knowingly participated in the scheme, and he himself is considered a participant.

See Holland, 22 F.3d at 1045. Thus, the district court did not err in determining

there were at least five participants.

                                          C.

      Third, Mayer contends “[t]he restitution figures contained in [the PSI] are

not explained anywhere in the record.” He asserts the district court could only


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order restitution as to the amount of losses caused by his commission of the

charged offenses. He contends some of the lenders were not financial institutions,

and the statute of limitations expired as to some of his conduct prior to the filing of

the indictment. He further asserts Wilcox’s testimony as to the amount of the

losses on some properties was uncorroborated.

      Under the Mandatory Victims’ Restitution Act (MVRA), 18 U.S.C.

§§ 3663A-3664, restitution for “wire fraud is not ‘limited to the specific act of

fraud underlying the mailing or use of the wires for which the defendant is

convicted,’ but is available for any victim of ‘the entire scheme or artifice to

defraud furthered by the mailing or use of the wires.’” United States v. Foley, 508

F.3d 627, 635 (11th Cir. 2007). “[A] criminal defendant cannot be compelled to

pay restitution for conduct committed outside of the scheme, conspiracy, or pattern

of criminal behavior underlying the offense of conviction.” United States v.

Brown, 665 F.3d at 1239, 1253 (11th Cir. 2011) (quotations omitted). Restitution

is appropriate, however, for victims of “conduct closely related to the offense of

conviction . . . in addition to the specific conduct for which the defendant was

convicted.” Id. at 1252. In considering whether conduct was closely related, we

consider whether the victim and purpose of each scheme were the same, whether

the schemes involved the same modus operandi, and whether the schemes involved

common participants. United States v. Edwards, 728 F.3d 1286, 1293 (11th Cir.


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2013). Restitution is available even if the losses were caused by conduct that

occurred outside the statute of limitations, so long as the conduct was in the course

of the scheme. Brown, 665 F.3d at 1253.

      “To be considered a ‘victim’ under the MVRA, an entity must have been

‘directly and proximately harmed as a result of the commission of [the] offense.’”

See United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015). Successor lenders

may be “victims” under the MVRA. Id. at 593-94.

      The district court did not plainly err in ordering restitution to Wilmington

Savings Fund Society (Wilmington), Bank of America, DLJ Mortgage Capital,

Inc., US Bank National Association, Deutsche Bank National Trust, and JP

Morgan Chase (JP Morgan). See United States v. Hasson, 333 F.3d 1264, 1276

(11th Cir. 2003) (stating if the defendant fails to object to the restitution order, we

review the order for plain error). As to the properties located at 915 East 23rd

Avenue and 3510 North 11th Street, Wilcox explained these mortgages were a loss

to the lenders because no one was paying them. The record demonstrates Wilcox’s

testimony regarding the sales of the properties located at 5005 Troydale Road,

2306 North Nebraska Avenue, and 3514 North 9th Street was based on her review

of warranty deeds and bank records, and the Government introduced evidence

corroborating her testimony about the sales of the properties at 2911 North 18th

Street and 918 East 14th Avenue. See Martin, 803 F.3d at 593 (providing the


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government has the burden of proving by a preponderance of the evidence that a

particular entity was a victim of the defendant’s offense). As to Mayer’s

challenges to the restitution orders in favor of Bank of America, Wilmington, and

JP Morgan, the district court was entitled to rely on the undisputed factual

statements in the presentence investigation report, which listed these entities as

victims of Mayer’s fraud. See Hasson, 333 F.3d at 1276 (stating a district court

may generally rely on undisputed factual statements in a PSI when ordering

restitution). Finally, any error in awarding restitution based on uncharged conduct

from a closely related scheme that occurred outside of the statute of limitations was

not clear or obvious, given our precedent allowing for restitution for conduct

closely related to the charged conduct and for conduct occurring outside of the

statute of limitations. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003) (explaining when the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error if there is not binding

precedent directly resolving it).

                                          D.

      Finally, Mayer alleges the district court erred by ordering him to forfeit the

proceeds from loans that did not affect a financial institution. If the defendant did

not object to the entry of the forfeiture order, we review the order for plain error.

United States v. Esquenazi, 752 F.3d 912, 939 n.22 (11th Cir. 2014). Federal law


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requires that, in sentencing defendants “convicted of a violation of, or conspiracy

to violate . . . [18 U.S.C. § 1343], affecting a financial institution,” courts “shall

order that the person forfeit to the United States any property constituting, or

derived from, proceeds the person obtained directly or indirectly, as the result of

such violation.” 18 U.S.C. § 982(a)(2).

      The district court plainly erred in ordering Mayer to forfeit the proceeds of

wire fraud not affecting a financial institution, pursuant to § 982(a)(2). See

Esquenazi, 752 F.3d at 939 n.22. The district court’s forfeiture order was

erroneous, as at least some of the mortgage proceeds were not dependent on Mayer

defrauding a financial institution. For example, none of the loans that were taken

out on 5005 Troydale Road were obtained from financial institutions, yet Mayer

was ordered to forfeit nearly $1 million as a result of the final mortgages taken out

on this property.

      The error was also plain, given that § 982(a)(2) provides that the court must

order a defendant convicted of violating or conspiring to violate the federal wire

fraud statute “affecting a financial institution” to forfeit “proceeds the person

obtained directly or indirectly, as the result of such violation,” and at least some of

the proceeds from mortgage loans were not obtained directly or indirectly as a

result of the offenses for which Mayer was convicted. See 18 U.S.C. § 982(a)(2)

(emphasis added); Lejarde-Rada, 319 F.3d at 1291. At least some of the proceeds


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from mortgage loans, such as the loans taken out on 500 Troydale, were not

obtained directly or indirectly as a result of the offenses for which Mayer was

convicted; rather, they were obtained as a result of his related scheme to commit

wire fraud not affecting a financial institution.

      The error also affected Mayer’s substantial rights. See Turner, 474 F.3d at

1276. The total value of the final mortgages taken out on the 12 properties,

$4,404,200, was the figure the Government used to calculate the forfeiture amount.

Only $1,114,200 of these mortgages came from GreenPoint, an FDIC-insured

entity. Straw buyers obtained the remaining $3,290,000 in mortgages from First

NLC, Silver State, American Brokers Conduit, Hometown, and Ownit. The

Government did not submit any evidence showing the entities are FDIC-insured,

and none of the charges stemmed from these mortgages. Because the inclusion of

mortgages from non-FDIC insured entities nearly quadrupled the forfeiture

amount, the inclusion was prejudicial. Finally, given the fact the error is both plain

and prejudicial, the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See Turner, 474 F.3d at 1276.

                                          VI.

      The district court did not err in ordering Mayer not to contact Jonas or

Fischman or in ordering the return of discovery documents to the Government.

The district court did not plainly err in admitting Wilcox’s testimony, calculating


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the loss amount, or ordering restitution. We decline to review on direct appeal

Mayer’s claim of ineffective assistance. Assuming arguendo the district court

erred in admitting evidence Mayer failed to file personal and corporate federal

income tax returns, he has not demonstrated he was prejudiced by the error.

Further, he cannot show cumulative error. The district court also properly applied

the four-level role enhancement. Finally, because the district court plainly erred in

ordering Mayer to forfeit the proceeds of loans that were not obtained directly or

indirectly as a result of his conspiracy to commit wire fraud affecting a financial

institution or as the result of his commission of wire fraud affecting a financial

institution, we vacate the forfeiture order and remand for further proceedings.

      AFFIRMED IN PART, VACATED AND REMENDED IN PART.




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