             Case: 12-15480    Date Filed: 11/21/2014   Page: 1 of 14


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 12-15480
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00089-SDM-TGW-2

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                      versus

MAURICE VERNON,
WILLIAM O. JOEL,
a.k.a. Ondra Joel,

                                                          Defendants-Appellants.

                          ________________________

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

                              (November 21, 2014)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      William O. Joel and Maurice Vernon appeal following their convictions for

one count of conspiracy to commit wire and mail fraud, in violation of 18 U.S.C. §
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1349, two counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2, eight

counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2, and two counts of

making a false statement in a loan application, in violation of 18 U.S.C. §§ 1014

and 2, and their forfeiture judgments of $1,618,000. On appeal, Joel argues that:

(1) his indictment should have been dismissed for a Speedy Trial Act violation; (2)

the district court abused its discretion by denying his motions to sever the trial; (3)

his forfeiture judgment violated the Ex Post Facto Clause; (4) the district court

clearly erred in applying an organizer or leader role enhancement to his offense

level; and (5) the district court erred in denying his motion for acquittal based on

insufficient evidence. Vernon, for his part, argues that: (1) the district court

erroneously denied his motion for acquittal based on insufficient evidence; (2) the

district court abused its discretion by denying his motion to sever; and (3) the court

erred by allowing the government to change its basis for his criminal forfeiture

judgment after trial. After careful review, we affirm.

      We review a claim under the Speedy Trial Act de novo, while reviewing a

district court’s factual determinations on excludable time for clear error. United

States v. Mathurin, 690 F.3d 1236, 1239 (11th Cir. 2012). We also review de novo

a Sixth Amendment claim, United States v. Yates, 438 F.3d 1307, 1311 (11th Cir.

2006); the legality of a forfeiture order, United States v. Valladares, 544 F.3d

1257, 1270 (11th Cir. 2008); an ex post facto claim, id.; and the denial of a motion


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for acquittal, United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005).

We also review the sufficiency of the evidence supporting a conviction de novo.

Id.   However, we make all factual and credibility inferences in favor of the

government. United States v. Cooper, 203 F.3d 1279, 1285 (11th Cir. 2000).

      We review a district court’s application of a role enhancement for clear

error. United States v. Rendon, 354 F.3d 1320, 1331 (11th Cir. 2003). We review

a district court’s grant or denial of a continuance for abuse of discretion. United

States v. Vasser, 916 F.2d 624, 627 (11th Cir. 1990). We also review the denial of

a motion to sever for abuse of discretion. United States v. Chavez, 584 F.3d 1354,

1360 (11th Cir. 2009). Finally, we review limitations placed on cross-examination

by the district court for abuse of discretion. United States v. Barrington, 648 F.3d

1178, 1187 (11th Cir. 2011). To show an abuse of discretion, the defendant must

show specific and compelling prejudice that resulted in fundamental unfairness.

United States v. Stanley, 739 F.3d 633, 651 (11th Cir.), cert. denied, Harris v.

United States, 134 S.Ct. 2317 (2014). Nevertheless, an appellant abandons a claim

when it is argued for the first time in a reply brief. United States v. Fiallo-Jacome,

874 F.2d 1479, 1481 (11th Cir. 1989).

      First, we are unpersuaded by Joel’s Speedy Trial Act argument. Under the

Speedy Trial Act, a defendant’s trial must commence within 70 days from the

filing of his indictment or his arraignment, whichever is later.          18 U.S.C. §


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3161(c)(1). A delay in the trial is excludable when it results from an ends-of-

justice continuance, which is granted when the ends of justice served by the

continuance outweigh the best interest of the public and the defendant in a speedy

trial. Id. § 3161(h)(7)(A).

      When ruling on a motion for an ends-of-justice continuance, the district

court must consider whether: (1) a failure to grant a continuance would make the

continuance of the proceeding impossible or result in a miscarriage of justice; (2)

the case is so unusual or complex that it is unreasonable to expect adequate

preparation within the 70-day period; and (3) the failure to grant a continuance

would deny the defendant or the government the reasonable time necessary for

effective trial preparation. Id. § 3161(h)(7)(B). It has broad discretion in weighing

these factors. United States v. Henry, 698 F.2d 1172, 1174 (11th Cir. 1983). It

may consider whether defense counsel has had adequate time to prepare, the

number of defendants, and any scheduling conflicts. Id. It must place its factual

findings supporting the continuance on the record before it rules on a defendant’s

motion to dismiss. Zedner v. United States, 547 U.S. 489, 507 (2006).

      Here, the district court did not abuse its discretion by granting three ends-of-

justice continuances.    For the first two continuances, it concluded that the

voluminous discovery warranted a continuance, and these conclusions were within

its broad discretion.    It also acted within its broad discretion for the third


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continuance, when it concluded that scheduling conflicts warranted a continuance.

Moreover, the court did not err by placing its factual findings for the third

continuance on the record after the continuance was granted. Zedner, 547 U.S. at

507. Because these continuances were valid, only 13 non-excludable days elapsed

between the last arraignment and the commencement of trial. On this record, the

district court did not err by denying Joel’s Speedy Trial Act claim.

      We also find no merit to Joel’s severance claim. Typically, defendants

charged with a common conspiracy should be tried together. United States v.

Lopez, 649 F.3d 1222, 1234 (11th Cir. 2011). Severance may be required when:

(1) the defendants rely upon mutually antagonistic defenses; (2) one defendant

would exculpate the other defendant in a separate trial; (3) inculpatory evidence

will be admitted against one defendant that is not admissible against the other

defendant; or (4) a prejudicial spillover effect will prevent the jury from making an

individualized determination as to each defendant. Chavez, 584 F.3d at 1360-61.

Severance is mandated when a joint trial leads to the denial of a constitutional right

or when the jury would be prevented from making a reliable judgment. United

States v. Blakenship, 382 F.3d 1110, 1123 (11th Cir. 2004). Mutually antagonistic

defenses are not inherently prejudicial.       Id. at 1125.     A defendant is not

automatically prejudiced when a codefendant’s defense directly inculpates him or

when the jury cannot logically believe both codefendants’ defenses.                Id.


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Furthermore, severance is not justified when the codefendant or his attorney acts as

a de facto prosecutor. Id. at 1126.

      The confession of a non-testifying codefendant is inadmissible if it directly

inculpates the defendant. United States v. Arias, 984 F.2d 1139, 1142 (11th Cir.

1993). Accordingly, a Confrontation Clause violation occurs when, in light of the

government’s whole case, a codefendant’s statement compels a reasonable person

to infer the defendant’s guilt. United States v. Schwartz, 541 F.3d 1331, 1351

(11th Cir. 2008).    It does not occur, though, when independent evidence is

necessary to make the inferential link between the codefendant’s statement and the

defendant’s involvement in the confessed activity. United States v. Williamson,

339 F.3d 1295, 1303 (11th Cir. 2003).

      The Confrontation Clause prohibits the introduction of testimonial hearsay

against a criminal defendant unless the defendant has an opportunity to cross-

examine the declarant. United States v. Ignasiak, 667 F.3d 1217, 1230 (11th Cir.

2012). Statements by counsel during the trial are not evidence. United States v.

Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992).

      In this case, the district court did not abuse its discretion by denying Joel’s

motions to sever. First, his arguments that mutually antagonistic defenses or

Vernon’s role as a de facto prosecutor warranted severance are incorrect because

neither of these facts alone mandate severance when he presents no evidence of


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compelling prejudice. Blakenship, 382 F.3d at 1125-26. Second, Leslie Nelson, a

government witness, did not violate Joel’s Confrontation Clause rights by

recounting Vernon’s statement that fraudulent settlement statements were made at

Investor’s Outlet, the company that Joel owns. Although the testimony mentioned

his business, independent testimony was necessary for the jury to connect that

statement to Joel’s involvement in the scheme. Finally, the government did not

violate Joel’s Confrontation Clause rights by referencing false invoices not

admitted into evidence because the Confrontation Clause only limits the

introduction of testimonial hearsay evidence, and an attorney’s arguments are not

evidence.    Because no constitutional error occurred and Joel suffered no

compelling prejudice from the joint trial, the district court did not abuse its

discretion by denying his motions to sever.

      Next, we reject Joel’s Ex Post Facto argument. A law violates the Ex Post

Facto Clause if it retroactively alters the definition of a crime or increases the

punishment for a criminal act. United States v. Saucedo-Patino, 358 F.3d 790, 793

(11th Cir. 2004). A forfeiture order does not violate the Ex Post Facto Clause

when the offense occurs after the passage of the statute authorizing forfeiture.

Valladares, 544 F.3d at 1271.

      Criminal forfeiture is authorized in every case where civil forfeiture is

authorized. 28 U.S.C. § 2461(c); United States v. Padron, 527 F.3d 1156, 1161-62


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(11th Cir. 2008).    Civil forfeiture and criminal forfeiture are authorized for

proceeds traceable to general mail fraud and wire fraud.          See 18 U.S.C. §§

981(a)(1)(c), 1956(c)(7)(A), & 1961(1)(B); Padron, 527 F.3d at 1161.

      Joel’s forfeiture order was not an ex post facto violation. He correctly notes

that 18 U.S.C. § 982(a)(2) did not authorize criminal forfeiture for mail and wire

fraud against mortgage lending businesses in 2006 because they were not

considered “financial institutions” under then-existing law. See 18 U.S.C. § 20

(2006). However, criminal forfeiture was authorized for those crimes by 2006

under 28 U.S.C. § 2461(c). See Padron, 527 F.3d at 1161. Therefore, forfeiture

was authorized when his offenses occurred, and the forfeiture judgment did not

violate the Ex Post Facto Clause. Valladares, 544 F.3d at 1271.

      We also reject Joel’s sentencing claim. The Sentencing Guidelines provide

for a four-level enhancement when the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive. U.S.S.G. § 3B1.1(a). A criminal activity may be extensive if it used the

services of several unknowing outsiders. Id. § 3B1.1, comment. (n.3). When

determining whether the criminal activity was “otherwise extensive,” the district

court considers the length of the activity, the scope of the activity, and the number

of persons involved. United States v. Holland, 22 F.3d 1040, 1046 (11th Cir.

1994).   It may rely on evidence heard during trial, undisputed statements in the


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presentence report, or evidence presented at the sentencing hearing to support its

factual findings. United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006).

       Here, the district court did not clearly err in concluding that the scheme Joel

participated in was otherwise extensive. Its conclusions that the scheme involved

numerous unknowing parties and over $1.8 million in loans were supported by the

presentence report and testimony it heard during the trial. As for Joel’s argument

that he was not an organizer or leader of the scheme, we do not consider it since he

first raised it in his reply brief.

       Nor are we persuaded by Joel’s or Vernon’s insufficiency of the evidence

arguments. Evidence is sufficient to support a conviction if a reasonable trier of

fact, choosing among reasonable interpretations of the evidence, could find guilt

beyond a reasonable doubt. United States v. Diaz-Boyzo, 432 F.3d 1264, 1269

(11th Cir. 2005).       The evidence does not have to exclude every reasonable

hypothesis of innocence. Hernandez, 433 F.3d at 1334-35. The jury may choose

between reasonable constructions of the evidence, and it is free to disbelieve the

testimony of witnesses. Id. at 1334.

       To commit wire fraud or mail fraud, a defendant must (1) intentionally

participate in a scheme to defraud and (2) use or cause the use of the wires or mail

for the purpose of executing the scheme. United States v. Ward, 486 F.3d 1212,

1222 (11th Cir. 2007). A defendant’s intent to defraud may be inferred from his


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conduct. United States v. Maxwell, 579 F.3d 1282, 1301 (11th Cir. 2009). His

profits from a fraud are circumstantial evidence of his intent to participate in the

fraud. United States v. Naranjo, 634 F.3d 1198, 1207 (11th Cir. 2011). To prove a

scheme to defraud, the government must provide proof of a material

misrepresentation that has a natural tendency to influence a person of ordinary

prudence or is capable of influencing a person of ordinary prudence. United States

v. Hasson, 333 F.3d 1264, 1270-71 (11th Cir. 2003).

        To commit a conspiracy offense under 18 U.S.C. § 1349, a defendant must

knowingly and willfully join an unlawful scheme to defraud. Maxwell, 579 F.3d at

1299.    The government may prove the defendant’s knowledge of the scheme

through circumstantial evidence. Id. To prove a defendant made a false statement

in a loan application, the government must show that (1) the defendant knowingly

made a false statement or report and (2) he did so to influence the conduct of a

federally-insured bank. United States v. Hill, 643 F.3d 807, 857 (11th Cir. 2011).

        A defendant who aids or abets the party that commits an offense is

punishable as a principal. 18 U.S.C. § 2(a). To prove a defendant aided and

abetted an offense, the government must demonstrate that: (1) he associated

himself with the criminal venture; (2) he participated in the venture as something

he wished to bring about; and (3) he sought by his actions to make the venture

succeed. United States v. Iglesias, 915 F.2d 1524, 1528 (11th Cir. 1990).


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      On this record, the government provided sufficient evidence for a reasonable

jury to conclude that Joel knowingly joined the conspiracy and intentionally

participated in a scheme to defraud mortgage lenders. The evidence shows that he

told Elton Lassiter, a co-conspirator, that he intended to purchase houses, inflate

the price of the house, and sell them to buyers at the inflated price. He also told

Lassiter to falsely declare in loan applications that the houses would be primary

residences. He assured Jill Jackson, another co-conspirator, that it was okay to

make these false declarations. Furthermore, his company received $241,794.16 in

payoffs from the sale of the houses in the scheme, which provides evidence that he

intended to participate in the fraud. Naranjo, 634 F.3d at 1207.

      The    government    also   provided    sufficient     evidence   that   material

misstatements were made to mortgage lenders.               One witness testified that

Jackson’s false primary residence declarations qualified her for a lower interest

rate and one hundred percent financing. Furthermore, lenders relied on falsified

income and liability declarations when approving the loans. A reasonable jury

could have concluded that these statements were capable of influencing the

mortgage lenders. Hasson, 333 F.3d at 1271.

      The government also provided sufficient evidence of Vernon’s intent to

participate in the scheme to defraud for the counts of conspiracy, mail fraud, and

wire fraud. He asked Jackson whether Investor’s Outlet could use her credit score


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to invest in houses. He asked for her financial information and helped her fill out a

loan application. He later admitted that he knew Lassiter falsified information on

loan applications and that two settlement statements were created for each

purchase so that the lender did not know the price stated in the original purchase

agreement.    Moreover, the government’s evidence indicates that he received

$114,211.33 from the loan proceeds.

      The government further produced enough evidence for a reasonable jury to

conclude that Vernon aided and abetted Lassiter in making false statements on loan

applications. Vernon recruited Jackson into the scheme and helped her fill out a

loan application used by Lassiter. He also signed Jackson’s signature on purchase

agreements and loan applications used by Lassiter. Therefore, a reasonable jury

could have concluded that he associated himself with the Investor’s Outlet scheme,

he participated throughout the scheme, and he sought to make the scheme succeed,

including the scheme to make false statements in loan applications. Iglesias, 915

F.2d at 1528. Accordingly, the district court did not err by denying either Joel’s or

Vernon’s motions for acquittal.

      As for Vernon’s Confrontation Clause claim, we are unconvinced. The

Sixth Amendment’s Confrontation Clause guarantees a defendant an opportunity

for effective cross-examination, but it does not guarantee cross-examination that is

effective in any way he may wish. United States v. Jones, 601 F.3d 1247, 1263


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(11th Cir. 2010). His rights are satisfied if sufficient information is elicited from

the witness for the jury to adequately assess the witness’s possible motive or bias.

United States v. Orisnord, 483 F.3d 1169, 1179 (11th Cir. 2007). The district court

has wide latitude to impose reasonable limits on cross-examination. Barrington,

648 F.3d at 1188. A defendant may not introduce his own exculpatory statement

through another witness without subjecting himself to cross-examination. United

States v. Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999).

      Here, the district court did not abuse its discretion by limiting Vernon’s

cross-examination of Leslie Nelson or by denying the motion to sever. During

cross-examination, Nelson admitted that her interview notes conflicted with part of

her testimony, and that she did not remember whether she showed documents to

Vernon during her interview with him. This information allowed the jury to

adequately assess her credibility.      Furthermore, the district court properly

prevented Vernon from admitting exculpatory statements through Nelson’s

testimony without subjecting himself to cross-examination.

      Finally, we conclude that Vernon’s argument that that the district court

erroneously allowed the government to amend the indictment is meritless. In an

indictment, the government must notify the defendant that it will seek criminal

forfeiture as part of the sentence. Fed.R.Crim.P. 32.2(a). The amendment of an

indictment is per se reversible error. United States v. Williams, 334 F.3d 1228,


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1232 (11th Cir. 2003). However, a variance from an indictment only requires

reversal when a defendant’s rights were substantially prejudiced by the variance.

Id. An erroneous citation in an indictment is not grounds for dismissal of the

indictment or reversal of a conviction unless the defendant was misled by the

indictment and thereby prejudiced. Fed.R.Crim.P. 7(c)(2).

      In this case, the district court did not err by permitting the government to

change the statutory basis for Vernon’s criminal forfeiture judgment.        In his

indictment, Vernon was given notice that the government sought criminal

forfeiture. He argues that the government’s use of an incorrect statute as authority

for that forfeiture is substantively erroneous, but we do not dismiss an indictment

for an erroneous citation unless it prejudices a defendant.      Vernon does not

demonstrate how the erroneous citation prejudiced him. Therefore, the district

court correctly concluded that the erroneous statutory citation was a scrivener’s

error, and it did not err by permitting the government to change its authority for

criminal forfeiture.

      AFFIRMED.




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