                                                                                   [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                          FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                                                          MARCH 16, 2010
                                        No. 08-13434
                                                                            JOHN LEY
                                                                             CLERK

                        DC Docket No. 07-00090-CR-J-33-HTS

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

ROBERT J. JENNINGS,

                                                                                    Defendant,

DONALD E. TOUCHET,
RICHARD E. STANDRIDGE,

                                                                     Defendants-Appellants.



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

                                      (March 16, 2010)

Before BLACK, MARCUS and HIGGINBOTHAM,* Circuit Judges.

       *
          Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
HIGGINBOTHAM, Circuit Judge:

       Richard E. Standridge and Donald E. Touchet1 were indicted on numerous

counts of conspiracy,2 mail and wire fraud,3 and money laundering,4 charging

participation in a scheme to sell fraudulent workers’ compensation insurance. A jury

convicted on all counts and the district court sentenced Standridge to 216 and

Touchet to 264 months’ imprisonment. Both appeal their convictions and sentences

on multiple grounds. We find no error and affirm.



                                                I

       Government witnesses described the workings of the industry in which the

alleged offenses occurred. It is useful to begin there. Workers’ compensation

insurance provides wage loss and medical expense reimbursement to individuals

injured while working. Most employers carry workers’ compensation insurance for

their employees and states require employers to obtain a certificate of insurance from


       1
         Robert J. Jennings, died in prison on December 4, 2009. Accordingly, his appeal was
dismissed as moot and his case was remanded to the district court to vacate the judgment and
dismiss the indictment. United States v. Jennings, No. 08-13434 (11th Cir. Jan. 5, 2010) (order
dismissing appeal as moot and remanding case to vacate the judgment and dismiss the
indictment); see also United States v. Romano, 755 F.2d 1401 (11th Cir. 1985).
       2
           18 U.S.C. § 371.
       3
           18 U.S.C. §§ 1341, 1343, & 2.
       4
           18 U.S.C. §§ 1956(a)(1)(A)(i) & 2.

                                                2
the insurance company demonstrating they are covered or have otherwise assured

protection for their employees.       Companies that sell workers compensation

insurance—termed carriers—are heavily regulated by the states. Every state requires

carriers to be “admitted” before operating within the state: Carriers must satisfy

various financial and administrative requirements and pay into “guaranty” funds used

to pay claims when an admitted carrier is unable to do so. That a carrier must be

admitted in order to insure employees within a state is common to the workers’

compensation industry.

         Many employers outsource their human resource department to a professional

employer organization. PEOs operate by hiring the client employer’s employees and

then leasing them back to the client—so that the client’s employees become the

employees of the PEO. The client pays the PEO the costs of payroll plus a fee for

services. PEOs also must be licensed by the state and have proof of valid workers’

compensation insurance. A PEO failing to meet state regulatory requirements will

face a stop-work order from the state requiring the PEO to cease all operations in the

state.

         The final gear in the workers’ compensation machine is the third party

administrator. Third party administrators work for both the carrier and the PEO in

administering the actual claims—in effect acting as an insurance company’s claims


                                          3
department. The administrator evaluates the merits of an employee’s claims and pays

the bills for valid claims under the policy. It often has the most day-to-day contact

with the client companies and their employees. Like the other participants, third party

administrators are regulated by the states which seek to ensure claims are paid in a

timely manner.



                                          II

      The government argued at trial that Touchet and Standridge participated in a

wide-reaching scheme to defraud employers and their employees through the sale of

sham workers’ compensation insurance, that together with their coconspirators, they

utilized professional employer organizations to sell fraudulent insurance to client

companies, that the fraud left the employees without workers’ compensation

insurance, and that many injured and disabled employees, unable to collect

compensation, were abandoned without financial recourse.

      Government witnesses offered the following account of relevant events: The

fraud began in late 2000 when TTC, a PEO, began to search for a new source of

workers’ compensation insurance after its previous carrier became insolvent. Touchet

and his business associate, Thomas Brown, had been doing business with TTC and

learned it needed workers’ compensation insurance. Touchet contacted Jerry Brewer


                                          4
at United Insurance about potential available insurance who told him coverage was

available through his Regency Insurance of West Indies, Limited. Brown proposed

Regency but TTC declined, aware that Regency was nonadmitted and could not

legally be engaged.    After a number of attempts to find legitimate workers’

compensation insurance failed, including an attempt to secure insurance through

Brown’s brother’s company, TTC became desperate—fearful that without workers’

compensation insurance it would be shut down. TTC finally agreed to Brown and

Touchet’s proposal and in February 2001 purchased workers’ compensation insurance

from Regency at the cost of $1.8 million a month.

      Touchet prepared a policy for TTC—taking a sample workers’ compensation

policy from another carrier, copying it with Regency’s name, and making up a policy

number. While the policy itself recited that Regency was a nonadmitted carrier,

Touchet provided TTC with certificates of insurance without this critical disclosure

to be furnished to TTC’s clients.

      TTC’s third party administrator refused to continue with a nonadmitted insurer.

Earlier Standridge had contacted Brown and Touchet regarding the possibility of

becoming the third party administrator for TTC’s workers’ compensation insurance.

Standridge owned and operated a healthcare third party administrator, Global

Healthcare Corp., and argued he could keep insurance costs down by aggressively


                                         5
managing the claims. He also claimed to Brown that he could run “roughshod” over

state regulators concerned about Regency. Now needing a new administrator, TTC

turned to Global Healthcare.

      Almost immediately the problems began. In March 2001, TTC refused to pay

the March premium, complaining to Standridge that claims had not been paid and that

states were rejecting Regency as a nonadmitted carrier. Standridge assured TTC that

he would deal with the regulators but at the moment he could not pay claims because

Brown had not remitted money from TTC’s premium.

      On April 12th, 2001, Brown, Standridge, Touchet, and Jennings—who was the

administrator for some of TTC’s health insurance—met with TTC at their offices in

Kankakee Illinois. A heated argument ensued over Regency’s failure to pay claims,

TTC’s failure to pay premiums, and states’ refusal to accept Regency. Brown,

Touchet, and Standridge agreed TTC could use Regency until valid insurance could

be obtained without regulators interfering. Standridge acted as a mediator, suggesting

that regulators would be placated if claims were paid and he had direct control over

TTC’s premiums. It was eventually resolved that TTC would pay the premiums

directly to Standridge and that Standridge would smooth the issues over with the state

regulators. After the meeting, TTC wired $1.8 million dollars for the March

premium. Around this time Standridge merged Global Health into EOS Health, a new


                                          6
company. In an apparent attempt to limit his liability for unpaid claims, Standridge

requested that the EOS employees be “hired” by Stat-Care, a third party administrator

controlled by Touchet, although EOS would continue to supervise them.

      The problems continued and in May 2001, TTC again refused to pay the

monthly premium because claims had not been paid. After badgering by Brown, TTC

paid the premium, but it did not cover all the claims and by June 2001 unpaid

workers’ compensation claims exceeded $10 million. Standridge claimed to have no

money to pay the claims—much of the money given by TTC to Brown and

Standridge had been used to pay the operating expenses and salaries of Brown,

Touchet, and Standridge, and for non-TTC investments by Standridge and Brown.

The money left was woefully insufficient. Finally, in July 2001, Florida issued a

stop-work order to TTC for failure to have legitimate workers’ compensation

insurance. TTC’s clients demanded payment on the existing claims and information

on how to contact Regency. Touchet and Brown provided EOS employees with the

address of an expired post office box to give to the angry claimants and EOS

employees told the claimants that the failure to pay claims was the fault of TTC.

      Undeterred by the failure of their efforts with TTC, Standridge, Touchet, and

Brown sought to capture TTC’s former clients by starting a PEO of their own. In

August 2001, they purchased a shell company and formed MRIK. Standridge was


                                         7
made a fifty-one percent shareholder as he had recently passed a background check

and could be licensed by the state in the shortest time. They hired Lawrence Jones,

the former manager of TTC’s Tampa office, to manage MRIK. Once again, Touchet,

Brown, and Standridge without success sought valid workers’ compensation

insurance. They then turned again to Regency as a “temporary” fix. As with TTC,

Touchet provided certificates of insurance that failed to disclose to the client

companies that Regency was nonadmitted. Jones questioned whether Regency was

admitted but Standridge ordered him to use the provided certificates of insurance.

Similar results followed. Florida issued MRIK a stop-work order in July 2002.

         Realizing that Regency no longer offered cover, Brewer, Touchet, and Brown

formed another insurance company, grandiosely named TransPacific International

Insurance Company Limited. TransPacific was originally incorporated in New

Zealand, though in an effort to license the company in the U.S. Standridge

unsuccessfully attempted to move its domicile to Arkansas. It lacked reserves, had

no employees, and had no office inside the United States. Like Regency, it was just

paper.

         With the stop-work order for its use of Regency, MRIK switched to

TransPacific.     Once again, Touchet, through Stat-Care, issued certificates of

insurance to MRIK stating MRIK had valid workers’ compensation insurance for


                                          8
MRIK’s clients. Jones testified he objected to the use of a nonadmitted carrier, but

the state authorities permitted MRIK to operate while TransPacific’s validity was

verified. In August 2002, Florida again issued a stop-work order.

      In addition to forming their own PEO, Brown, Touchet and Standridge

recruited other PEO clients facing problems with their workers’ compensation

insurance similar to those of TTC. The pattern was consistent. From 2001 to 2004,

Brown, Touchet, and Standridge continued to sell Regency and TransPacific policies

through various PEOs desperate for workers’ compensation coverage. Touchet wrote

the workers’ compensation insurance policies disclosing Regency and Transpacific

were nonadmitted. He also crafted certificates of insurance that did not reveal the

status of Regency and TransPacific for the PEOs to provide to their clients.

Standridge acted as administrator for many of the PEOs. As the money ran out, he

and his employees developed scripts in order to mollify angry claimants and inquiring

regulators. Many of these PEOs even continued to use Regency and TransPacific in

some states after regulators in other states issued stop-work orders.

      In 2004 investigators closed in and the house of cards collapsed. Several

indicted coconspirators pled guilty, including Brown and the CEOs of several of the

PEOs. Brown, Jones, and other conspirators testified at trial against Touchet and

Standridge, detailing the scheme. The government also presented the testimony of


                                          9
Lynn Szymoniak, an expert on the workers’ compensation industry, who testified that

the licensing and regulatory requirements Touchet and Standridge violated were well

known by those in the workers’ compensation industry. The government also

presented Touchet’s grand jury testimony, as well as the testimony of employees of

third party administrators and PEOs, and some of Touchet’s and Standridge’s victims.

The government corroborated the testimony with detailed financial records and

emails.



                                                  III

         Both Touchet and Standridge argue the district court erred in admitting the

expert testimony of Lynn Szymoniak regarding information generally known by third

party administrators and persons who own and operate PEOs. We review a district

court’s determination that a witness is a qualified expert for abuse of discretion.5

“Under Rule 702, a district court must determine that proffered expert testimony is

both reliable and relevant. . . . For non-scientific expert testimony, the trial judge

must have considerable leeway in deciding in a particular case how to go about

determining whether particular expert testimony is reliable. A district court may



         5
             American Gen. Life Ins. Co. v. Schoenthal Family, LLC, 555 F.3d 1331, 1339 (11th Cir.
2009).

                                                  10
decide that non-scientific expert testimony is reliable based upon personal knowledge

or experience.”6

      Szymoniak testified to, among other things, the substantive requirements of

state workers’ compensation law and the general knowledge in the industry of those

requirements. The court found Szymoniak to be qualified based on extensive

testimony as to her background: Szymoniak had a law degree from Villanova, taught

clinical programs and employment discrimination, worked for three years for the

National Council on Compensation Insurance—the rate-making organization for the

workers’ compensation industry, was the editor of a legal magazine which published

reviews of significant changes in workers’ compensation in the fifty states, was a

member, and at one point head, of the ABA tort insurance practice section, workers’

compensation section, was a partner of a firm and head of the practice group

specializing in workers’ compensation fraud and currently has her own firm doing

similar work, published eleven articles and edits an online magazine, Fraud Digest,

was a founding member of the Florida Task Force on workers’ compensation, and

lastly was involved in the rule making process concerning PEOs and workers’

compensation as well as third party administrators.




      6
          Id.

                                         11
           Szymoniak testified on the basis of this experience and conversations over her

career with workers’ compensation professionals. Relying on United States v.

Scrima, Touchet and Standridge claim the testimony was hearsay.7 In Scrima, the

court stated “[a]lthough experts are sometimes allowed to refer to hearsay evidence

as a basis for their testimony, such hearsay must be the type of evidence reasonably

relied upon by experts in the particular field in forming opinions or inferences on the

subject.”8 But in Scrima the expert testimony was by an accountant who based his

conclusions on calculations of net worth on “statements to casual business

acquaintances.”9 The court found qualified expert accountants would not use such

evidence. This contrasts with United States v. Steed, allowing a police officer to

testify regarding standard police tactics at traffic stops based on “discussions [the

officer] had with other law enforcement officers over the course of his career, and

literature with respect to trends in drug trafficking.”10 As in Steed, Szymoniak



       7
          Touchet and Standridge also seek to exclude the testimony on the grounds that it
constitutes an informal survey which fails the scientific method. However, “[w]here
experience-based studies are generally accepted in the industry, a court cannot penalize a litigant
for the lack of scientific or academic studies and public reports on the topic. . . . .” United States
v. Frazier, 387 F.3d 1244, 1299–1300 (11th Cir. 2004) (internal quotations and citations
omitted)).
       8
           819 F.2d 996, 1002 (11th Cir. 1987).
       9
           Id.
       10
            548 F.3d 961, 965 (11th Cir. 2008).

                                                  12
testified regarding general practice in a field—third party administrators’ knowledge

of appropriate and legitimate business practices. This was testimony by the witness

about her work and her familiarity with the regulatory environment. It was evidence

in support of her competence to express an opinion regarding the awareness of certain

industry requirements—that knowledge of these requirements was essential to

persons in this field. It was not an effort to prove what the regulations were from the

statements of others.        Knowledge of an industry’s business practices—unlike

technical accounting valuations—is gleaned from years of working within the

industry and with its professionals. It is not a recounting of out of court statements

of others. We find no abuse of discretion by the district court in admitting

Szymoniak’s testimony.



                                               IV

      Touchet argues that the court erred in denying a mistrial on the ground that

Brown made reference before the jury of civil litigation in which he and Touchet were

currently involved. The decision not to grant a mistrial is reviewed for abuse of

discretion.11 Touchet must demonstrate that his substantial rights are prejudicially

affected. That is, when there is a reasonable probability that, but for the remarks, the


      11
           United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009).

                                               13
outcome of the trial would have been different.12 “[W]here the comment is brief,

unelicited, and unresponsive, adding nothing to the government’s case, the denial of

a mistrial is proper.”13

       The contested testimony is as follows:

       Q:         Is there one of those three [Touchet, Standridge or Jennings],
                  though, that you consider a friend?
       A:         I do.
       Q:         Which one?
       A:         Don Touchet.
       Q:         Why?
       A:         We’ve known each other the longest; been involved in a lot of
                  problems; working through problems; we’ve been sued multiple
                  times; we continue with—I believe we’re still actively involved
                  in three civil litigation—

At this point the defense objected and the prosecution agreed not to pursue the line

of questioning.

       This case fits squarely within United States v. Emmanuel. There the court

found a government witness’s fleeting, unsolicited, reference that the defendant had

been out on bail insufficient grounds for a mistrial.14 Here, the testimony was arguably

less prejudicial than that in Emmanuel. Civil litigation is a common occurrence. No

details of the litigation were disclosed and the government did not pursue the matter.


       12
            Id.
       13
            Id.
       14
            Id.

                                             14
Moreover, the court offered to provide a curative instruction to the jury, but Touchet

declined.   In light of the substantial evidence to convict Touchet, the minor

significance of Brown’s comments, and Touchet’s refusal of an instruction, the denial

of a mistrial was proper and was not an abuse of discretion.



                                          V

      Standridge argues there was insufficient evidence to convict him of any charge.

There are two sets of charges: (1) counts one through six and seventeen through

nineteen charged Standridge with mail and wire fraud and conspiracy for his

participation in the sale of Regency and TransPacific insurance through his PEO

MRIK and to various other PEOs; and (2) counts twenty and twenty-one charged

Standridge with money laundering. Standridge argues that, with respect to the fraud

and conspiracy counts, the government failed to prove he knew the use of Regency

and TransPacific was illegal and that he believed the use of Regency and TransPacific

was acceptable in limited instances. With respect to the money laundering counts,

Standridge argues the government failed to prove the property involved was “profits”

from unlawful activity as required by the Supreme Court’s decision in United States

v. Santos. We review a challenge to the sufficiency of the evidence de novo, viewing




                                         15
the evidence “in the light most favorable to the government, with all reasonable

inferences and credibility choices made in the government’s favor.”15



                                                 A

       We first turn to the fraud and conspiracy counts. Conviction under the mail

and wire fraud statutes requires proof that Standridge intentionally participated in a

scheme to defraud and used the mails or wire communications to further the scheme.16

Either may be proved through circumstantial evidence.17 Conspiracy demands proof

of: “(1) . . . an agreement to achieve an unlawful objective; (2) . . . knowing and

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

agreement.”18 The government argues that Standridge participated in the scheme to

defraud by his participation in his PEO MRIK and through acting as a third party

administrator for other PEOs using Regency and TransPacific. Standridge’s defense

is, in short, that he was unaware of the fraudulent nature of the business: He

maintains that at no point did he know of the illegality of the use of Regency or take

       15
            United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003) (internal quotation marks
omitted).
       16
         18 U.S.C. §§ 1341 & 1343; United States v. Brown, 40 F.3d 1218, 1221 (11th Cir.
1994). Standridge was also charged under the aiding and abetting statute. 18 U.S.C. § 2.
       17
            United States v. Robertson, 493 F.3d 1322, 1330–31 (11th Cir. 2007).
       18
            United States v. Adkinson, 158 F.3d 1147, 1153 (11th Cir. 1998); 18 U.S.C. § 371.

                                                 16
part in the use of Regency as a workers’ compensation insurance carrier and that the

government failed to present sufficient evidence to prove otherwise.

      Standridge’s defense is essentially his word over that of his confederates—a

credibility call belonging to the jury. Brown testified that Standridge was aware of

the illegality of Regency at least by the April 12, 2001 meeting with TTC. Standridge

stood to make money acting as the administrator for TTC and he had a strong interest

in maintaining the business relationship with TTC. The testimony indicated that

Standridge assisted in convincing TTC to agree to the use of Regency.         Brown

testified that Standridge knew of the contents of the policy and of the discrepancies

in the certificates of insurance (between that provided to TTC and that provided to

TTC’s client companies). In addition, though Standridge knew other administrators

would not work with Regency, Standridge asserted he could smooth out any problems

with regulators arising from the use of Regency—implying he would be able to

prevent sanctions through the use of his personal contacts at the various agencies.

Both Brown and the CEO of TTC testified Standridge was integral to resolving the

problems between Brown and TTC to keep the scheme alive.

      Moreover, evidence at trial revealed Standridge’s involvement continued

significantly past any point where he could convincingly claim ignorance. There was

testimony that Standridge asked to structure EOS so that its employees were


                                         17
technically employed by Touchet’s Stat-Care in an attempt to limit his liability arising

from the use of Regency. But even after the restructuring, Standridge was intimately

involved in its business—and knew his employees were using a script to mislead

regulators as the scheme with TTC began to unravel. Even after TTC received a

stop-work order, Standridge continued to act as the administrator for other PEOs

using Regency and TransPacific. Lastly, there was testimony that Standridge was

involved in diverting some of the PEOs’ premium dollars to unauthorized purposes.

      The government also provided sufficient evidence to convict Standridge of

fraud for his participation in MRIK. Standridge argues he believed MRIK would not

be providing workers’ compensation insurance—but rather only health

insurance—and that Lawrence Jones went behind his back to fraudulently provide

Regency and TransPacific insurance to MRIK’s client companies. The government

countered with evidence that Standridge was a knowing and willing participant in the

scheme: Standridge owned fifty-one percent of MRIK’s stock and was its controlling

person and as Brown’s testimony made clear, he and Standridge established MRIK

to absorb TTC’s former clients. While he stated the original plan was not to use

Regency, the conspirators quickly turned to Regency when other options fell

through—even after its use had doomed TTC. Jones also testified extensively against

Standridge. He stated that Standridge was his immediate boss and that Standridge


                                          18
instructed him to use the misleading certificates of insurance identifying Regency and

TransPacific as the clients’ workers’ compensation carrier. Both Jones and Brown

testified Standridge was aware of Regency’s and TransPacific’s nonadmitted status

and that Standridge said he would take care of the licensing issues raised by the

states. Brown and Jones’s testimony evidenced a fraud in which Standridge was

intimately involved. The evidence was sufficient to uphold the convictions.



                                                B

      Standridge argues that the convictions for money laundering must be

overturned under United States v. Santos, as the government cannot prove the money

at issue was the profits of illegal activity as opposed to receipts. Money laundering

requires proof that the defendant conducted or attempted to conduct a financial

transaction, knew the property involved in the transaction represented the proceeds

of unlawful activity, the property involved was in fact the proceeds of the specified

unlawful activity, and the defendant conducted the financial transaction with the

intent to promote the carrying on of the specified unlawful activity.19 In Santos, the

Supreme Court in a plurality opinion held that in the context of gambling proceeds,




      19
           United States v. Williamson, 339 F.3d 1295, 1301 (11th Cir. 2003).

                                                19
proceeds meant “profits” as opposed to “receipts.”20 As this objection was not raised

at trial, we review for plain error.21

       This court recently addressed the Santos opinion in United States v.

Demarest:22

                 Santos has limited precedential value. Three parts of Justice
                 Scalia’s four-part opinion are for a plurality of justices, and those
                 parts do not state a rule for this case. When a fragmented Court
                 decides a case and no single rationale explaining the result enjoys
                 the assent of five Justices, the holding of the Court may be
                 viewed as that position taken by those Members who concurred
                 in the judgments on the narrowest grounds. The narrow holding
                 in Santos, at most, was that the gross receipts of an unlicensed
                 gambling operation were not ‘proceeds’ under section 1956.23

This court therefore treats Justice Stevens’s opinion as controlling in its narrowest

form. As in Demarest, here the money laundering charges did not involve receipts

from an unlicensed gambling operation. This court has previously defined proceeds

as “what is produced by or derived from something . . . by way of total revenue; the




       20
            128 S.Ct. at 2034 (Stevens, J., concurring).
       21
         United States v. Cotton, 535 U.S. 625, 628–31 (2002); United States v. Demarest, 570
F.3d 1232, 1241 (11th Cir. 2009).
       22
            570 F.3d 1232.
       23
         Id. at 1242 (internal quotations and citations omitted). Justice Stevens, in his
concurrence, stated “this Court need not pick a single definition of ‘proceeds’ applicable to every
unlawful activity, no matter how incongruous some applications may be.” Santos, 128 S.Ct. at
2031 (Stevens, J., concurring).

                                                  20
total amount brought in.”24 This definition includes receipts as well as profits. This

definition binds the court, and therefore there was no error—certainly no plain

error—in the refusal to grant a judgment of acquittal on this point.



                                                VI

       Touchet argues that the district court erred in failing over objection to instruct

the jury that in order to convict him of mail or wire fraud it must find that the scheme

and artifice was “reasonably calculated to deceive persons of ordinary prudence and

comprehension.” Touchet relies on the court’s decision in United States v. Brown.25

 Brown was overruled by the court’s en banc opinion in United States v. Svete,

explaining that “we overrule our holding in Brown that the offense of mail fraud

requires proof of a scheme calculated to deceive a person of ordinary prudence.”26

Touchet’s argument is foreclosed.




       24
         United States v. Silvestri, 409 F.3d 1311, 1333 (11th Cir. 2005) (quoting WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 1807 (3d ed 1961)); United States v. Khanani, 502
F.3d 1281, 1297 n.6 (11th Cir. 2007).
       25
           79 F.3d 1550, 1557 (11th Cir. 1996) (“[I]n this circuit . . . the government must show
the defendant intended to create a scheme reasonably calculated to deceive persons of ordinary
prudence and comprehension.” (internal quotations and citations removed)) revs’d by United
States v. Svete, 556 F.3d 1157 (11th Cir. 2009) (en banc).
       26
            Svete, 556 F.3d at 1167.

                                                21
                                         VII

      Touchet argues that his sentence was procedurally and substantively

unreasonable.    At sentencing, the court adopted the factual findings of the

presentence investigation report, finding a guidelines range of 360 months to a

statutory maximum of 215 years’ imprisonment.            The district court departed

downwards and sentenced Touchet to 264 months’ imprisonment. Touchet argues

(1) he did not qualify for a three level enhancement as a “manager or supervisor”; (2)

he did not qualify for a two level enhancement for obstruction of justice; (3) he did

not qualify for a two level enhancement for sophisticated means; and (4) the sentence

was substantively unreasonable as the court did not properly address the section 3553

factors. We address each in turn.



                                          1

      The district court applied a three level enhancement after finding Touchet

qualified as a manager or supervisor. “This court reviews a sentencing court’s

determination of a defendant’s role in the crime for clear error.” Section 3B1.1 of the

Sentencing Guidelines provides for a three level enhancement “[i]f the defendant was

a manager or supervisor (but not an organizer or leader) and the criminal activity




                                          22
involved five or more participants or was otherwise extensive.”27 We evaluate several

factors in our determination:

                    (1) the exercise of decision making authority, (2) the nature of
                    participation in the commission of the offense, (3) the recruitment
                    of accomplices, (4) the claimed right to a larger share of the fruits
                    of the crime, (5) the degree of participation in planning or
                    organizing the offense, (6) the nature and scope of the illegal
                    activity, and (7) the degree of control and authority exercised over
                    others.28

It is clear that control over assets alone is insufficient, the individual must have had

control over at least one other participant in the criminal activity.29

          Touchet was situated near the top of the hierarchy of the overall scheme. He

was the business partner of Thomas Brown and was the connection to Jerry Brewer,

the owner of Regency. Touchet participated in the negotiations with the PEOs,

including at the April 12th meeting with TTC in which the fraud was developed, and

subsequently issued the policies and misleading certificates of insurance to the PEOs

to pass along to their clients. Moreover, as the owner of TransPacific and State-Care,

he influenced the other coconspirators, including EOS Health, which used the Stat-

Care employees, and the PEOs, which used the certificates of insurance that he


          27
               U.S.S.G. § 3B1.1(b).
          28
               United States v. Gupta, 463 F.3d 1182, 1198 (quoting U.S.S.G. § 3B1.1, comment
(n.4)).
          29
               United States v. Glover, 179 F.3d 1300, 1302–03 (11th Cir. 1999).

                                                    23
produced. Based on Touchet’s extensive involvement in the development and

operation of the scheme, the court did not clearly err.



                                                2

      The district court also applied a two level enhancement for obstruction of

justice. The court reviews a district court’s determination that a defendant obstructed

justice for clear error when credibility is at issue.30 Under Sentencing Guidelines

section 3C1.1 a district court may impose a two level enhancement if it finds that the

defendant obstructed justice, including committing perjury on a material matter at his

own trial.31 Touchet’s trial testimony directly contradicted his grand jury testimony

on a material matter: While he testified at the grand jury that he knew what he was

doing was illegal, he later testified he only found out what he was doing was illegal

after the fact and that the prosecutor had influenced him to falsely admit criminal

activity. There was no clear error.



                                                3




      30
           United States v. Banks, 347 F.3d 1266, 1269 (11th Cir. 2003).
      31
           United States v. Dunnigan, 507 U.S. 87, 88–89 (1993).

                                                24
      Touchet next objects to the district court’s determination that he is subject to

a two level increase because his fraud deployed sophisticated means, a determination

we review for clear error.32 The commentary to section 2B1.1(b)(9)(C) states

“‘sophisticated means’ means especially complex or especially intricate offense

conduct pertaining to the execution or concealment of an offense. . . . Conduct such

as hiding assets or transactions, or both, through the use of fictitious entities,

corporate shells, or offshore financial accounts also ordinarily indicates sophisticated

means.”33      Here the fraud revolved around Regency and TransPacific, shell

corporations which Touchet and the others used to issue illegitimate workers’

compensation insurance. In addition, by using EOS and Stat-Care as third party

administrators to shield Regency and TransPacific from claimants and regulators, and

by submitting misleading certificates of insurance to the PEOs to provide to their

clients, they attempted to hide the illegality of their actions. There was no clear error.



                                                 4

      Lastly, Touchet argues that the district court failed to properly address the

section 3553 factors by not considering that he is fifty-four years old, has adopted


      32
           United States v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009).
      33
           U.S.S.G. § 2B1.1 comment (n.8(b)).

                                                25
children, some of whom were abused and abandoned, has a history of service to the

church and Boy Scouts, has been a good friend, and has no prior criminal record. In

addition, the court received over eighty letters on his behalf. This court has stated:

                Under Gall, we must engage in a two-step process of sentencing
                review. First, we must ensure that the district court committed no
                significant procedural error, such as failing to calculate (or
                improperly calculating) the Guidelines range, treating the
                Guidelines as mandatory, failing to consider the § 3553(a) factors,
                selecting a sentence based on clearly erroneous facts, or failing to
                adequately explain the chosen sentence-including an explanation
                for any deviation from the Guidelines range. Second, we must
                consider the substantive reasonableness of the sentence imposed,
                under an abuse-of-discretion standard, taking into account the
                totality of the circumstances.34

      First, the sentence is procedurally reasonable as the court clearly articulated the

section 3553 factors, noted the guidelines were advisory and articulated its reasons

for imposing the sentence. Second, the sentence is substantively reasonable. Touchet

highlights mitigating factors, but the district court departed downward from the

recommended guidelines range while emphasizing the fact that Touchet had

defrauded thousands of individuals of workers’ compensation coverage.



                                               VIII




      34
           United States v. Livesay, 525 F.3d 1081, 1091 (11th Cir. 2008).

                                                26
       Standridge also argues that his sentence was unreasonable. The court adopted

the factual findings set forth in the presentence investigation report, finding that

Standridge’s guideline range was 292 to 365 months’ imprisonment. The court

departed downward and sentenced Standridge to 216 months’ imprisonment. The

sentence is procedurally reasonable as the court clearly articulated the section 3553

factors, noted the guidelines were advisory and articulated its reasons for imposing

the sentence. Standridge argues that the sentence is not substantively reasonable as

he was a first offender and lived an exemplary life including providing pro bono

medical care. Standridge also argues that the district court focused too heavily on one

factor—that Standridge refused to cooperate.35 We do not find these arguments

persuasive. The district court emphasized Standridge defrauded his victims of their

rightful benefits out of sheer greed and in doing so caused great suffering. We find

no clear error.



                                                IX




       35
          United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir. 2006) (“a district court's
‘unjustified reliance upon any one [§ 3553(a)] factor is a symptom of an unreasonable
sentence.’”).

                                                27
      At the able hand of a federal district judge and facing a jury of twelve, these

defendants received the fair trial they were due. We find no error. The judgments of

conviction and sentences are AFFIRMED.




                                         28
