           Case: 18-11330    Date Filed: 09/24/2019   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-11330
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:16-cr-00524-SDM-CPT-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JAMES J. JEAN-RENE,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 24, 2019)

Before WILLIAM PRYOR, MARTIN and BRANCH, Circuit Judges.

PER CURIAM:
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      James Jean-Rene appeals his convictions and sentence of 88 months of

imprisonment for one count of conspiring to convert property of the United States

and to commit aggravated identity theft, 18 U.S.C. § 371, seven counts of

unlawfully converting government property, id. §§ 641, 2, and seven counts of

aggravated identity theft, id. §§ 1028A, 2. Jean-Rene bought 108 Treasury checks

worth $850,174.92 that were either issued as refunds for fraudulent tax returns or

stolen from federal taxpayers or beneficiaries. Jean-Rene argues that insufficient

evidence proved he knew the Treasury checks he negotiated were stolen or

fraudulent and that his indictment should have been dismissed or a new trial

granted because the government failed to disclose the transcript of a special agent’s

testimony before the grand jury. Jean-Rene also argues that the enhancement of his

sentence for obstruction of justice violated his rights under the Fifth and Sixth

Amendments. We affirm.

      Ample evidence proved that Jean-Rene knew the checks he negotiated had

been stolen or had been issued for fraudulent tax returns. Coconspirator Evens

Francois testified that he sold Jean-Rene several stolen and fraudulent Treasury

checks for 50 percent of their face value and that he forged the endorsements for

some of those checks. See 18 U.S.C. § 371. Text messages between the

coconspirators, bank records, and canceled checks proved that Francois received

11 payments from Jean-Rene equaling half of the amount of seven Treasury checks


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that Jean-Rene and his wife deposited in bank accounts for their bail bonding

company. The records also established that Jean-Rene and his wife paid Francois

and depleted their company bank accounts soon after making their deposits. Payees

for the seven Treasury checks testified that they had no affiliation with Jean-Rene

or his wife, had not obtained bail bonds from the couple, had not endorsed the

checks they deposited, and had not filed federal tax returns for the fraudulent tax

refund checks the couple deposited. See Barnes v. United States, 412 U.S. 837,

843–45 (1973) (affirming instruction that jury can infer guilty knowledge from

defendant’s negotiation of stolen Treasury checks payable to persons he did not

know and that he had no plausible explanation for possessing); United States v.

Wilson, 788 F.3d 1298, 1309–10 (11th Cir. 2015) (affirming conviction for

converting Treasury checks when defendant deposited multiple refund checks

issued for fraudulent tax returns). Jean-Rene’s banks reclaimed the proceeds of at

least three Treasury checks and twice notified Jean-Rene in writing that the

endorsements on the Treasury checks had been forged. Jean-Rene responded by

changing banks. Taken together, sufficient evidence proved that Jean-Rene knew

the checks he deposited were stolen and fraudulent.

      Jean-Rene’s testimony “added further weight to the prosecution’s case.” See

United States v. Margarita Garcia, 906 F.3d 1255, 1274 (11th Cir. 2018), cert.

denied sub nom. Garcia v. United States, 139 S. Ct. 2027 (2019). Jean-Rene


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testified that he accepted the Treasury checks as payments for bail bonds, but he

could not account for records kept by his sureties that showed he did not issue bail

bonds to any of the payees. See id. (“An explanation or denial offered by a

defendant at trial that the jury finds implausible or false may ‘form a sufficient

basis to allow the jury to find that the defendant had the requisite guilty

knowledge.’”). Jean-Rene also testified about an elaborate, undocumented system

that involved writing checks to himself and his wife that he used to reimburse

customers whose Treasury checks exceeded the cost of their bail bonds. And Jean-

Rene testified that Francois bought cars that Jean-Rene repaired who then collected

the purchase price from the buyers and paid Francois the balance remaining after

deducting the costs of the repairs. The jury was entitled to discredit Jean-Rene’s

implausible testimony and treat it as substantive evidence of his guilt. See United

States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995).

      The district court did not abuse its discretion by denying Jean-Rene’s motion

to dismiss his indictment or for a new trial. The nondisclosure of special agent

Chris Hall’s grand jury testimony did not warrant relief under Giglio v. United

States, 405 U.S. 150 (1972), the Jenks Act, 18 U.S.C. § 3500(b), or Brady v.

Maryland, 373 U.S. 83 (1963). Agent Hall testified that he investigated why Jean-

Rene negotiated tax refund checks issued to other persons and that two payees

confirmed Jean-Rene did not have permission to file their tax returns. Jean-Rene


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does not contend that any of Agent Hall’s statements were “actually false,” as

required to prove a violation of Giglio. See Maharaj v. Sec’y for Dep’t of Corr.,

432 F.3d 1292, 1313 (11th Cir. 2005). Even if, as Jean-Rene argues, Agent Hall’s

testimony “left a misleading impression that Mr. Jean-Rene had purportedly filed

fraudulent tax returns,” any error in withholding Agent Hall’s grand jury testimony

was harmless. Nondisclosure of the testimony did not handicap Jean-Rene’s

defense or affect the outcome of his case. See United States v. Jones, 601 F.3d

1247, 1266–67 (11th Cir. 2010); Giglio, 405 U.S. at 154. Jean-Rene was convicted

of identity theft and converting Treasury checks, not filing fraudulent tax returns.

Had Jean-Rene questioned Agent Hall about his grand jury testimony, the

government could have presented evidence that Jean-Rene had filed personal tax

returns that were fraudulent. And the evidence of Jean-Rene’s guilt was

overwhelming. Testimony from 26 witnesses, numerous records, and text

messages between Jean-Rene and his coconspirators proved that he purchased

Treasury checks that were stolen or fraudulent and negotiated those checks to

enrich himself and his coconspirators. Jean-Rene also argues that the district court

sua sponte should have held an evidentiary hearing on his motion, but we will not

consider an argument that Jean-Rene raised for the first time in his reply brief. See

United States v. Britt, 437 F.3d 1103, 1104–05 (11th Cir. 2006).




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      Jean-Rene concedes that his challenge to the enhancement of his sentence

for obstruction of justice is foreclosed by our precedents in United States v.

Dunnigan, 507 U.S. 87 (1993), and United States v. Dobbs, 11 F.3d 152 (11th Cir.

1994). Jean-Rene does not dispute that he committed perjury. As we held in

Dobbs, “the enhancement for obstruction of justice through perjury does not

punish a defendant for testifying, but rather ‘is part of a sentencing scheme

designed to determine the appropriate type and extent of punishment after the issue

of guilt has been resolved.’” Id. at 154 (quoting Dunnigan, 507 U.S. at 94). We are

bound by that precedent. United States v. Whyte, 928 F.3d 1317, 1337 (11th Cir.

2019).

      We AFFIRM Jean-Rene’s convictions and sentence.




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