            Case: 14-12228   Date Filed: 04/12/2016   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12228
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:12-cr-60049-RSR-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                     versus

ROGERIO CHAVES SCOTTON,
a.k.a. Roger Scotton,

                                                          Defendant-Appellant.

                       ________________________

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

                              (April 12, 2016)

Before ED CARNES, Chief Judge, TJOFLAT, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Rogerio Chaves Scotton, a Brazilian national, owned several online retail

stores. In order to ship the items he sold online, he opened a number of UPS,

FedEx, and DHL Express accounts in his name or in the name of entities he

controlled. Whenever one of those accounts became delinquent, he would set up a

new account in the name of another entity he controlled or in the name of an

established business with which he was not associated. Scotton also lied to

immigration officials about unrelated matters when he applied to become a legal

permanent resident.

      As a result of these activities, Scotton was charged with 27 counts of mail

fraud, in violation of 18 U.S.C. § 1341, and two counts of making false statements

to a government agency, in violation of 18 U.S.C. § 1001(a)(2). He represented

himself at trial and, after 29 days, was convicted as charged. The district court

sentenced him to 108 months in prison and ordered him to pay $2,582,935.60 in

restitution. Scotton appeals his convictions and sentence.

      Scotton first challenges the district court’s refusal to strike a juror for cause.

He contends that the challenged juror, who said that she was afraid of him at the

beginning of the trial, could not have rendered an impartial verdict in his case.

“The decision to strike a [ ] juror for cause upon a suggestion of partiality is within

the sound discretion of the trial judge.” United States v. Dickerson, 248 F.3d 1036,

1045 (11th Cir. 2001) (quotation marks omitted). We review that decision only for


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abuse of discretion. United States v. Carlin, 698 F.2d 1133, 1135 (11th Cir. 1983).

The trial judge “must consider whether the juror[] had such fixed opinions that

[she] could not judge impartially the guilt of the defendant.” Dickerson, 248 F.3d

at 1045. We look to the record “to determine whether there is fair support . . . for

[the] district court’s conclusion that the juror would be impartial.” Id.

      There is plenty of evidence in the record supporting the conclusion that the

challenged juror could render an impartial verdict in Scotton’s case. Before jury

deliberations began, the trial judge questioned the juror at length about whether she

could weigh the evidence fairly and render an impartial verdict. The juror said that

she no longer had concerns for her safety and that she believed she could deliberate

and come to a decision fairly. That was enough for the court to conclude that the

juror could “lay aside any opinion she might hold and render a judgment based

solely on the evidence presented in court.” United States v. Rhodes, 177 F.3d 963,

965 (11th Cir. 1999); see Dickerson, 248 F.3d at 1045.

      Scotton next challenges the district court’s decision to admit into evidence a

number of summary charts that compiled the thousands of shipping invoices and

waybills associated with his fraudulent accounts. Specifically, Scotton challenges

the admission of Government Exhibits 15, 130, 130A, 132B, and 132C. He

contends on appeal that the government did not provide him with the records on

which those summary charts were based before trial. See United States v. Arias-


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Izquierdo, 449 F.3d 1168, 1184 (11th Cir. 2006) (explaining that Fed. R. Evid.

1006 allows “for the admission of a summary of voluminous business records, but

only if certain requirements are met[,]” including that the other parties “be

provided the original records upon which the summary is based — or duplicates of

those originals — prior to the admission of the summary”). At trial, however,

Scotton objected to only Exhibit 130 on that basis.1

       We review a district court’s decision to admit summary charts into evidence

only for abuse of discretion. United States v. Richardson, 233 F.3d 1285, 1293

(11th Cir. 2000); Gordon v. United States, 438 F.2d 858, 876 (5th Cir. 1971)

(stating that a district court’s rulings concerning summary charts are subject to

reversal “only upon a clear showing of abuse and resulting prejudice to the

accused”). But with respect to the exhibits to which Scotton did not object at trial,

we review only for plain error. See United States v. Raad, 406 F.3d 1322, 1323

(11th Cir. 2005) (“Plain error occurs where (1) there is an error; (2) that is plain or

obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial

and not harmless; and (4) that seriously affects the fairness, integrity, or public

reputation of the judicial proceedings.”).



       1
         Scotton actually objected to the admission of Exhibit 130 under the “best evidence
rule,” but he argued that he had not received the records supporting the exhibit before trial. We
will construe his pro se objection liberally as challenging the government’s failure to comply
with the requirements of Rule 1006.
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      The district court specifically found that the challenged exhibits were based

on business records that the government had provided to the defense during the

course of discovery as required by Federal Rule of Evidence 1006. See Arias-

Izquierdo, 449 F.3d at 1184. Scotton also had the opportunity to cross-examine the

government’s witnesses about each of those exhibits and to present his own

explanation for their contents, reducing any risk of error. See Richardson, 233

F.3d at 1294 (“[W]here the defense has the opportunity to cross-examine a witness

concerning the disputed issue and to present its own version of the case, the

likelihood of any error in admitting summary evidence diminishes.”) (quotation

marks omitted). Under those circumstances, we find no abuse of discretion or

plain error in the district court’s decision to admit into evidence the government’s

summary charts.

      Scotton next contends that the district court erred when it denied his motion

for a mistrial based on comments that allegedly violated his Fifth Amendment right

against self-incrimination. On several occasions, sometimes in the presence of the

jury, the trial judge admonished Scotton that he could only ask questions during his

examination of witnesses. She also reminded Scotton that if he wanted to testify,

he would have to do so “from the witness stand.” Scotton argues that those

reprimands impermissibly emphasized his decision not to testify.




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      A remark violates a defendant’s Fifth Amendment right to remain silent if it

is “manifestly intended to be a comment on the defendant’s failure to testify” or if

it is “of such a character that the jury would naturally and necessarily take it to be a

comment on the defendant’s silence.” United States v. Knowles, 66 F.3d 1146,

1163 (11th Cir. 1995) (quotation marks omitted). The defendant bears the burden

of proving one of those two criteria. Id. “[W]e must examine the comments in the

context within which they were made.” Williams v. Wainwright, 673 F.2d 1182,

1184 (11th Cir. 1982). Because the trial judge is in the best position to evaluate

the comments in context, we review the denial of a motion for mistrial only for

abuse of discretion. Knowles, 66 F.3d at 1163.

      The trial judge’s remarks were not “manifestly intended” to comment on

Scotton’s failure to testify. Id. Her statements were clearly designed to ensure that

the trial was conducted properly and to remind Scotton, who represented himself,

of the court’s rules. See United States v. Swindall, 971 F.2d 1531, 1551–52 (11th

Cir. 1992) (explaining that a statement cannot be “manifestly intended” to

comment on the defendant’s failure to testify if “some other explanation for [the]

remark is equally plausible”). Nor would the jury have “naturally and necessarily”

taken the trial judge’s remarks as a comment on Scotton’s right to silence.

Knowles, 66 F.3d at 1163. In fact, it’s highly unlikely that they would have done

so, given the trial judge’s explicit instruction that Scotton “has the absolute right


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not to testify” and that if he chose not to testify, the jury could not “hold that

against him.” See Swindall, 971 F.3d at 1552 (noting that “the trial court’s

curative instruction was adequate” to prevent the jury from construing a statement

by the prosecutor as an impermissible comment on the defendant’s Fifth

Amendment right).

      Finally, Scotton contends that the district court erred at sentencing by

attributing a loss amount of $2,663,385.43 to him, which resulted in an 18-level

increase in his base offense level. See U.S.S.G. § 2B1.1(b)(1)(J). He argues that

the government failed to adequately prove that loss amount because it relied on

spreadsheets that summarized thousands of fraudulent transactions instead of the

actual records of those transactions themselves.

      The sentencing guidelines provide for an increased offense level based on

the amount of loss attributable to a defendant’s fraudulent conduct. See U.S.S.G.

§ 2B1.1(b)(1). “A sentencing court need only make a reasonable estimate of the

loss, given the available information.” United States v. Barrington, 648 F.3d 1178,

1197 (11th Cir. 2011) (quotation marks omitted). But the court “may not speculate

about the existence of a fact that would result in a higher sentence,” and the

government must prove the loss by a preponderance of the evidence using “reliable

and specific evidence.” Id. (quotation marks omitted); see United States v.

Medina, 485 F.3d 1291, 1304 (11th Cir. 2007). Because the district court “is in a


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unique position to assess the evidence and estimate the loss,” its “loss

determination is entitled to appropriate deference.” Barrington, 648 F.3d at 1197.

We review it only for clear error. Id.

      At sentencing, the government submitted several spreadsheets based on data

provided to it by UPS, FedEx, and DHL Express about the loss associated with

Scotton’s fraudulent shipments. A federal agent testified about how that data was

collected and compiled. And Scotton has “submitted no proof that the

[g]overnment’s averages, estimates, or results are so wildly inaccurate as to be

unreasonable.” United States v. Bradley, 644 F.3d 1213, 1292 (11th Cir. 2011).

The district court, therefore, “did not engage in the kind of speculation forbidden

by the [s]entencing [g]uidelines” in determining the amount of loss attributable to

Scotton. Id.

      AFFIRMED.




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