          Case: 14-11420    Date Filed: 02/19/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11420
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:13-cr-20525-DMM-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JEAN LOUIS,

                                                         Defendant-Appellant.

                       ________________________

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

                            (February 19, 2015)

Before HULL, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jean Louis appeals his convictions for filing a false, fictitious, and fraudulent

income tax return, in violation of 18 U.S.C. §§ 2 and 287, and wire fraud, in

violation of 18 U.S.C. §§ 2 and 1343. He argues that the district court erred in

failing to grant his motion for judgment of acquittal because the government failed

to present sufficient evidence of his “intent” or “knowledge” to sustain his

convictions, as his codefendant was the “driving force” in the offense and he was

simply an “unknowing dupe.” He also contends that the district court erred in

denying his motion to suppress his post-arrest statements because he did not

sufficiently understand the English language to voluntarily waive his Miranda 1

rights. Finally, he argues that the district court erred by failing to grant his request

for a recess to obtain the transcript of a witness’s testimony at a prior trial for

impeachment purposes.

                                               I.

      We review de novo a challenge to the denial of a Federal Rule of Civil

Procedure 29 motion for a judgment of acquittal based on

sufficiency-of-the-evidence grounds. United States v. Capers, 708 F.3d 1286,

1296 (11th Cir.), cert. denied, 134 S.Ct. 145 (2013). Arguments raised for the first

time on appeal, however, are reviewed for plain error. See United States v.

Hunerlach, 197 F.3d 1059, 1068-69 (11th Cir. 1999) (noting that plain-error


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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review applies even when a defendant moved for judgment of acquittal on

sufficiency-of-the-evidence grounds but failed to articulate at that time the specific

sufficiency-of-the-evidence claim later raised on appeal). After the Government’s

case in chief, Louis argued that judgment of acquittal should be granted,

specifically because the Government failed to identify Louis as the “Louis”

identified by the witnesses in this case. On appeal, he argues that he lacked

knowledge or intent and that Duverger was the one that committed the crimes.

Therefore, his specific arguments on appeal regarding insufficient evidence are

reviewed for plain error. To show plain error, the defendant must show (1) an

error, (2) that is plain, and (3) that affected his substantial rights. United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satisfies the three

conditions, we may exercise our discretion to recognize the error if it “seriously

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

      In considering the sufficiency of the evidence, we view the evidence in the

light most favorable to the government, with all inferences and credibility choices

made in the government’s favor, and affirm the conviction if, based on the

evidence, a reasonable jury could have found the defendant guilty beyond a

reasonable doubt. Capers, 708 F.3d at 1296-97. “The evidence need not be

inconsistent with every reasonable hypothesis except guilt, and the jury is free to

choose between or among the reasonable conclusions to be drawn from the


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evidence presented at trial,” but when the evidence is only circumstantial,

reasonable inferences must support the conviction, not mere speculation. Id.

at 1297 (citation omitted).

      “Whoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable as a

principal.” 18 U.S.C. § 2(a). Under § 2, aiding and abetting is not a separate

federal crime, “but rather an alternative charge that permits one to be found guilty

as a principal for aiding or procuring someone else to commit the offense.” United

States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984). A defendant can be

properly convicted as a principal even when he has not personally committed all of

the acts constituting the elements of the substantive crime. Id. Thus, to convict

under a theory of aiding and abetting, the government must prove that: (1) the

substantive offense was committed by someone; (2) the defendant contributed to

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

United States v. Tagg, 572 F.3d 1320, 1324 (11th Cir. 2009).

      To sustain a conviction for the substantive offense of making a false claim to

the government under § 287, the government must prove: “(1) the [d]efendant

knowingly presented a false claim against the United States to an agency of the

United States; (2) the claim was based on a false or fraudulent material fact; and

(3) the [d]efendant acted intentionally and knew that the claim was false and


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fraudulent.” Eleventh Cir. Pattern Jury Instructions (Criminal Cases), Offense

Instruction 11.2 (2010).

      To establish wire fraud pursuant to § 1343, the government has to prove

beyond a reasonable doubt that the defendant: (1) intentionally participated in a

scheme to defraud; and (2) used the interstate wires in furtherance of that scheme.

United States v. Robertson, 493 F.3d 1322, 1331 (11th Cir. 2007).

      The district court did not plainly err in denying Louis’s motion for judgment

of acquittal because the government presented sufficient evidence for a jury to find

Louis guilty of filing a false tax return and wire fraud either as a principal or under

an aiding-and-abetting theory. First, the government presented sufficient evidence

to sustain convictions of the substantive offenses charged in the indictment. As to

his filing a false, fictitious, or fraudulent tax return charge under § 287, Louis does

not challenge that a false or fraudulent claim was presented to the government, but

rather only challenges that he did not present the claim “intentionally” or

“knowingly.” Although Louis suggests that he was not the tax preparer and was

unaware that Duverger filed the false or fraudulent tax return in his name,

sufficient evidence established that Louis acted intentionally and knew that his

claim was false and fraudulent. Detective Fagan testified that Louis admitted to

the police that he had prepared the tax return and that Duverger had only helped

him. Louis stated that the income was from his business, rather than from Warner


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Brothers Distribution Company, which was indicated as his employer on the

return, and admitted that $9.8 million may have been slightly inflated. Thus, a jury

could have reasonably concluded that Louis filed the return and that he knew it

was false. Capers, 708 F.3d at 1297. A reasonable jury also could have found that

Louis was more than an “unknowing dupe” in the fraud scheme because evidence

showed that he had incorporated JLL Multi Services, opened the Citibank account

in his business’s name, lied to Citibank concerning that account, lied to the police

about the source of the $600,000 deposit to the account, and began to attempt to

withdraw money immediately after the tax refund had been deposited. Granting

the government all reasonable inferences, this evidence was sufficient for a

reasonable jury to find that Louis knowingly participated in the scheme to defraud

the IRS. Capers, 708 F.3d at 1296-97.

      The trial evidence also sufficiently supported a wire fraud conviction under

§ 1343. On appeal, Louis does not challenge the existence of wire fraud scheme or

that the scheme included the use of interstate wires, but rather argues that he did

not “intentionally” participate in the scheme and that he did not have knowledge of

Duverger’s wire communications or “the equipment capable of filing such returns”

electronically. His arguments are unavailing. As discussed above, the evidence at

trial was sufficient to establish that Louis intentionally participated in the scheme

to defraud the IRS, establishing the first element of the offense. Robertson, 493


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F.3d at 1331. Also, the standard does not require knowledge or proof that the

defendant had the equipment to electronically file tax returns, but rather requires

that the defendant simply used the interstate wires in furtherance of that scheme.

Robertson, 493 F.3d at 1331. The evidence showed that the tax return was filed

electronically, and that Louis admitted that he filed it, sufficiently establishing the

second element of the offense. Robertson, 493 F.3d at 1331.

      Moreover, the evidence also was sufficient for the jury to convict Louis of

aiding and abetting Duverger in committing the offenses. Louis’s argument that

Duverger “was the driving force in this matter” is irrelevant, because the

government was not required to prove that Louis himself committed the

substantive crimes under an aiding-and-abetting theory, and the government

presented sufficient evidence for a jury to conclude that Lewis intended to aid

Duverger in the criminal scheme, as discussed above. Tagg, 572 F.3d at 1324.



                                           II.

      We review a district court’s denial of a motion to suppress as a mixed

question of law and fact. United States v. Ransfer, 749 F.3d 914, 921 (11th Cir.

2014). We review the district court’s factual findings for clear error, and its

application of the law to the facts de novo. Id. Facts are construed in the light

most favorable to the prevailing party in the district court. Id.


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      Under the Fifth Amendment, “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. Miranda

protects a defendant’s Fifth Amendment right against self-incrimination by

requiring that law enforcement officers advise the defendant subject to custodial

interrogation of certain rights and to respect the defendant’s invocation of those

rights. United States v. Bernal-Benitez, 594 F.3d 1303, 1318 (11th Cir. 2010). We

conduct a two-part inquiry when determining the admissibility of a post-arrest

statement. Id. at 1317-18. First, we decide whether the law enforcement officer

complied with Miranda. Id. at 1318. If so, we determine whether the confession

was voluntary. Id. A defendant may waive his Miranda rights if the waiver is

made voluntarily, knowingly, and intelligently. Id. Voluntariness requires that the

waiver must be the result of a free and deliberate choice, rather than intimidation,

deception, or coercion. Id. The waiver must be made with full awareness of the

nature of the rights being waived and the consequences of that decision. Id. A

court may conclude that a person waived his Miranda rights only if the totality of

the circumstances demonstrates both a free choice and the requisite level of

comprehension. Id. A written waiver is usually strong proof of the validity of that

waiver. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60

L.Ed.2d 286 (1979). We have held that, “[i]n determining whether an individual

has sufficient comprehension of English to provide voluntary consent [to a vehicle


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search], courts examine his ability to interact intelligently with the police.” United

States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999) (concluding that consent

was voluntary where there was “no evidence that [the defendant] was confused by,

or did not understand, any of [the officer]’s questions”).

      The district court did not err in denying Louis’s motion to suppress his

post-arrest statements because it properly determined that the interviewing agent’s

testimony that Louis had stated that he could read, write, and understand English

and was comfortable speaking in English, was credible. Viewing that finding in

the light most favorable to the government, Louis understood English, and,

therefore, the waiver of his Miranda rights was voluntary.

                                         III.

      We review the district court’s denial of a motion for a continuance for an

abuse of discretion. United States v. Valladares, 544 F.3d 1257, 1261 (11th Cir.

2008). The denial of a continuance to further investigate the case or a witness

must be upheld unless the defendant can show a specific and substantial prejudice.

United States v. Gossett, 877 F.2d 901, 906 (11th Cir. 1993). To make a showing

of specific and substantial prejudice necessary to obtain relief, the defendant must

identify something in the record that would indicate the possibility of a different

outcome if the continuance had been granted. Id.




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      The district court did not abuse its discretion in refusing to grant a recess for

Louis to acquire the transcript of a witness’s testimony from a prior trial because

Louis failed to show that the denial resulted in specific and substantial prejudice,

as he cited nothing in the record that indicated the possibility of a different

outcome if the recess had been granted.

                                                IV.

      Finally, we independently note that the written judgment contains

scrivener’s errors because it omits any reference to aiding and abetting under § 2

from each listed offense of conviction.

      Upon review of the entire record on appeal, and after consideration of the

parties’ briefs, we affirm Louis’s convictions, but remand for the limited purpose

of correcting the scrivener’s errors in the written judgment.

      AFFIRMED IN PART, REMANDED IN PART.




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