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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10033
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:16-cr-00036-CDL-MSH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

HAROLD COLEY,

                                                          Defendant-Appellant.

                       ________________________

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

                              (July 31, 2019)

Before MARTIN, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:
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      Harold Coley appeals his convictions for conspiring to file false claims,

committing mail fraud, and embezzling mail. On appeal, Coley argues that the

evidence presented at trial was insufficient to support the jury’s verdict. After

thorough review, we affirm Coley’s convictions.

                                     I.   FACTS

      A grand jury charged Coley by indictment with 48 counts: 1 count of

conspiracy to file false claims, in violation of 18 U.S.C. § 286; 18 counts of mail

fraud, in violation of 18 U.S.C. § 1341; 18 counts of aggravated identity theft, in

violation of 18 U.S.C. § 1028A (a)(1), (c)(5); and 11 counts of embezzlement of

mail, in violation of 18 U.S.C. § 1709. The indictment charged that, in 2012 and

2013, Coley, a United States Postal Service (“USPS”) employee, participated in a

tax-fraud scheme along with co-conspirators Keisha Lanier, Tamika Floyd,

Talashia Hinton, and Mequetta Snell-Quick. The indictment charged that Coley

participated in the scheme by providing addresses, many of which were for vacant

lots or homes, on his postal route to Keisha Lanier “for the purpose of having

fraudulent federal income tax refund checks mailed to those addresses.” The

indictment further alleged that Coley, for payment, diverted the tax refund checks

from the mail and provided them to Lanier and others involved in the scheme.

Coley pled not guilty to all 48 charges, and his case proceeded to a jury trial.




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      At trial, the government presented the testimony of Coley’s co-conspirator

Tamika Floyd, who testified that she was employed as a child support clerk at the

Lee County Public Health Department, where she had access to the demographic

information—names, dates of birth, social security numbers—of the minors listed

in the Department’s database. Lanier, a tax preparer whom Floyd met through

family, asked Floyd to provide Lanier with the personal information of minors so

that Lanier could then use the minors’ information to file tax returns with the IRS.

Lanier offered Floyd half of the proceeds for her involvement in the scheme, and in

2012 and 2013, Floyd provided Lanier with the personal information requested.

Floyd further testified that Lanier paid “a mailman” to deliver the refund checks to

Lanier and that Floyd had heard a phone conversation between Lanier and the

mailman, during which the mailman responded to the name “Harold.”

      The government also called as a witness co-conspirator Talashia Hinton,

who testified that she was responsible for picking up information from Floyd and

delivering the information and checks to Lanier. Hinton also filed fraudulent tax

returns and accompanying W-2 forms under the names provided by Floyd,

requesting that the IRS mail out the corresponding refund checks to addresses

provided by Lanier. Hinton testified that Lanier had received those addresses

directly from the mailman, whom she called “Harold.” Lanier told Hinton that the

mailman’s first name was “Harold [or] Henry,” and that his last name was “Cool,


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Cooley, Cool.” Lanier also told Hinton that the mailman was “the main person

that needs to get paid because he’s getting her addresses.” Hinton met Lanier’s

mailman in person three times and identified Coley in the courtroom as the

mailman whom she met. Sandra Daniel, Lanier’s babysitter, also identified Coley

in the courtroom as someone who would visit Lanier’s home two to three time per

week to talk about addresses and drop off and pick up treasury checks.

      The jury also heard from Mequitta Snell-Quick, another co-conspirator, who

testified that she lived in the same neighborhood as Lanier and participated in the

fraudulent tax scheme. Snell-Quick identified Coley in the courtroom as her

neighborhood’s mailman. She also testified that she had observed Lanier pick up

an envelope containing checks from Coley; she had picked up mail from Coley

containing checks for Lanier; and, on one occasion, Coley delivered checks to

Snell-Quick’s house that were addressed to other people at different locations.

      Coley’s manager at the USPS location where he worked identified Coley in

court as a postal worker and testified that, every year during the tax-return season,

supervisors talked to the postal employees about returning and reporting checks

that were addressed to “bad addresses.” His manager also stated that he would

expect that postal workers would know what homes on their respective routes were

abandoned and vacant, and that postal workers were taught to return all mail

addressed to vacant or non-existent homes to their supervisors. Coley was


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assigned to Delivery Route 622 and had never reported any issues with treasury

checks on his route to his manager.

       The government also presented testimony of two government agents who

investigated the case. Special Agent Jarrett Arrington worked for the USPS’s

Postal Inspection Service and interviewed Coley concerning his role in the tax

fraud scheme. During the interview, Coley admitted that he found it suspicious

that many tax refund checks were sent to vacant homes on his route or to people on

his route whom he knew to be unemployed. However, Coley did not report his

suspicions to his supervisor. Coley said he had returned refund checks that were

addressed to vacant homes to the sender but admitted that he had delivered

approximately ten refund checks, addressed to different recipients, to Snell-Quick

and ten refund checks, addressed to different recipients, to Lanier. Agent

Arrington testified that Coley denied providing a list of vacant or fictitious

addresses to Lanier and told Agent Arrington that he had never received any

payment or thing of value from Lanier or Snell-Quick.

       Special Agent David Tucker was the lead IRS agent working on Coley’s

case.1 Agent Tucker testified that, during the time-period comprising the tax-fraud




1
  The government also presented the testimony of 11 victims, and 2 mothers of victims, whose
identities were used to file the fraudulent tax returns. These victims all stated that they did not file
any tax returns through Lanier or her colleagues and did not receive any refund checks for those
tax returns.
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scheme, 1,676 fraudulent tax refund checks (totaling $2,548,606) were directed to

addresses on Coley’s route. Of those 1,676 fraudulent checks, Agent Tucker

determined that 692 tax refund checks (totaling $861,749) were actually delivered.

Of those 692 fraudulent checks, many were delivered in September of 2012 to

vacant or fictitious addresses. Agent Tucker testified that Coley reported to work

every single day in September of 2012 except Labor Day, but admitted that he

could not definitively confirm that Coley possessed the specific checks presented

by the government as evidence.

       At the close of government’s case, Coley’s counsel moved for a judgment of

acquittal as to only Counts 17, 18, 35, and 36, arguing that the government failed

to call the victims of those counts. The district court denied Coley’s motion, and

Coley chose not to testify or otherwise put on a case.

       After deliberation, the jury found Coley not guilty of Counts 20-32 and 34-

37 and guilty of Counts 1-14, 16-19, and 38-48. The district court also dismissed

Counts 15 and 33 because the government failed to include them in the indictment.

Ultimately, Coley was found guilty of at least one count each of conspiracy to file

false claims (Count 1), committing mail fraud (Counts 2-14, 16-19), and

embezzling mail (Counts 38-48). The district court sentenced Coley to 97 months’

imprisonment and 3 years’ supervised release and ordered that he pay $901,351 of

restitution.


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      Coley timely appealed his convictions.

                         II.   STANDARD OF REVIEW

      Ordinarily, we review de novo whether there is sufficient evidence to

support a conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir.

2009). In that case, “the evidence will be sufficient to support a conviction if ‘a

reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.’” Id. at 1284–85 (quoting United States v. Calhoon, 97 F.3d

518, 523 (11th Cir. 1996)). “But where a defendant does not move for acquittal or

otherwise preserve an argument regarding the sufficiency of the evidence in the

court below, the defendant ‘must shoulder a somewhat heavier burden: we will

reverse the conviction only where doing so is necessary to prevent a manifest

miscarriage of justice.’” United States v. Fries, 725 F.3d 1286, 1291 (11th Cir.

2013) (quoting United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.

2006)). This standard requires that we find that either the record is devoid of

evidence of an essential element of the crime or “that the evidence on a key

element of the offense is so tenuous that a conviction would be shocking.” United

States v. Milkintas, 470 F.3d 1339, 1343 (11th Cir. 2006) (quotation marks

omitted).

      Relevant to this appeal, Coley moved for judgment of acquittal on some

counts (Counts 17 and 18), but not others (Counts 1, 2-14, 16, 19, and 38-48). In


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any event, both standards require us to “view the evidence in the light most

favorable to the government and accept all reasonable inferences and credibility

determinations that support the jury’s verdict.” Id.; see also United States v.

Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007) (applying de novo review to mail

fraud conviction). This test for sufficiency is the same for direct and

circumstantial evidence. United States v. Martin, 803 F.3d 581, 587 (11th Cir.

2015).

                               III.   DISCUSSION

      In support of his argument challenging the sufficiency of the evidence,

Coley argues that direct evidence was lacking and that the government did not

present “tangible” evidence of his involvement in the scheme. For example, Coley

argues that the government failed to prove that Coley communicated with his co-

conspirators about the scheme because the government provided “no record of one

phone call or text message” between Coley and others. Coley also insists that,

because the government “could not with any specific identify what refund checks

[he] received for Lanier to any addresses that [he] allegedly provided,” the

evidence was insufficient to convict him of embezzling mail.

      We first address Coley’s argument that the government failed to prove

Coley’s crimes because they did not provide “tangible evidence” to support the

convictions. While it is unclear exactly what Coley means when he uses the phrase


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“tangible evidence,” we interpret his argument as an attack on the government’s

lack of physical, documentary evidence showing his communication with his co-

conspirators and his possession of the checks. See, e.g., United States v. New York

Tel. Co., 434 U.S. 159, 169–170 (1977) (distinguishing between “tangible”

property like “documents, books, papers and any other tangible objects” and

“intangible” property “such as dial impulses recorded by pen registers”).

However, Coley’s reliance on “tangible evidence” is misplaced because we do not

require the government to prove the crimes of conspiracy, mail fraud, and mail

embezzling by presenting tangible, physical, documentary evidence of each

element.

      In fact, we do not require the government to present even direct evidence

proving Coley’s crimes. “Conspiracy may be proven by circumstantial evidence

and the extent of participation in the conspiracy or extent of knowledge of details

in the conspiracy does not matter ‘if the proof shows the defendant knew the

essential objective of the conspiracy.’” Gupta, 463 F.3d at 1194 (quoting United

States v. Suba, 132 F.3d 662, 672 (11th Cir. 1998)). The government may also

“present circumstantial evidence to prove knowledge of the scheme.” United

States v. Pierre, 825 F.3d 1183, 1193 (11th Cir. 2016). Likewise, “[m]ail fraud

can be proved by circumstantial evidence.” Robertson, 493 F.3d at 1330; see also

United States v. Metallo, 908 F.2d 795, 798 (11th Cir. 1990) (affirming mail fraud


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conviction based on circumstantial evidence of appellant having used the United

States mails to carry out his fraudulent scheme because “[t]o establish use of the

mails, direct evidence is not required”). With respect to mail embezzling, “the

government must prove specific intent to defraud,” United States v. Waymer, 55

F.3d 564, 568 (11th Cir. 1995), but “circumstantial evidence of criminal intent can

suffice.” United States v. Suba, 132 F.3d 662, 673 (11th Cir. 1998).

Circumstantial evidence is sufficient because “[g]uilty knowledge can rarely be

established by direct evidence, especially in respect to fraud crimes which, by their

very nature, often yield little in the way of direct proof.” Id. Thus, we can affirm

Coley’s convictions even if the government relied entirely on circumstantial

evidence.

      Here, however, the record reflects that the government presented both direct

and circumstantial evidence to prove each of the essential elements of the crimes

for which Coley was convicted. Regardless of whether the evidence provided by

the government was direct or circumstantial, we will make all reasonable

inferences that tend to support the jury’s verdict. United States v. Williams, 390

F.3d 1319, 1323–24 (11th Cir. 2004).

      We briefly summarize the evidence provided before considering whether the

evidence was sufficient to prove each essential element of the crimes for which

Coley was convicted. The government presented direct evidence of Coley’s


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involvement in the scheme through the testimony of Coley’s co-conspirators and

the testimony of Special Agent Arrington, who testified that Coley partially

admitted his role in the conspiracy during the USPS interview. Three different

witnesses identified Coley in the courtroom as the mailman who delivered

addresses and checks to his co-conspirator, Lanier, the lead perpetrator of the tax

fraud scheme. More specifically, one of Coley’s co-conspirators testified that

Lanier paid “a mailman” to deliver the refund checks to Lanier and that the

mailman responded to the name “Harold.”

      The government also presented evidence that Coley spoke to Lanier about

providing her with addresses—many of which were for vacant lots or homes—on

his postal route so fraudulent federal income tax refund checks could be mailed to

those addresses. The government presented evidence that Coley provided lists of

addresses to Lanier and delivered fraudulent tax return checks to Lanier. Coley’s

manager at USPS testified that Coley would have known which homes on his route

were vacant and had a duty to return mail addressed to those homes, but that Coley

did not do so. The government also presented evidence that Coley received cash

for providing and delivering the checks and addresses to Lanier—and a co-

conspirator testified that Lanier told her the mailman was “the main person that

needs to get paid because he’s getting her addresses.” Finally, Special Agent

Tucker’s testimony confirmed that 692 fraudulent tax refund checks were


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delivered to vacant, abandoned, or nonexistent homes on Coley’s mail route on

days when Coley worked.

      For the reasons that follow, we conclude that the evidence presented by the

government was sufficient to prove the crimes for which Coley was convicted.

         a. Conspiracy to File False Claims

      Coley was found guilty on Count 1, which charged him with conspiracy to

file false claims. Because Coley did not move for acquittal or otherwise preserve

his sufficiency argument below, we will reverse his conviction only if we find that

either the record is devoid of evidence of an essential element of the crime or “that

the evidence on a key element of the offense is so tenuous that a conviction would

be shocking.” Milkintas, 470 F.3d at 1343.

      To convict a defendant for conspiracy to file false claims under 18 U.S.C.

§ 286, the government must prove, beyond a reasonable doubt, (1) the existence of

an agreement to achieve an unlawful objective, (2) the defendant’s knowing and

voluntary participation in the conspiracy, and (3) the commission of an overt act in

furtherance of the conspiracy. Gupta, 463 F.3d 1182 at 1194. Section 286

“applies only when the conspirators agree to defraud the government in a specific

manner,” namely by obtaining the payment of false, fictitious, or fraudulent claims.

United States v. Lanier, 920 F.2d 887, 892 (11th Cir. 1991). “Conspiracy may be

proven by circumstantial evidence and the extent of participation in the conspiracy


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or extent of knowledge of details in the conspiracy does not matter ‘if the proof

shows the defendant knew the essential objective of the conspiracy.’” Gupta, 463

F.3d at 1194 (quoting Suba, 132 F.3d at 672). The government may also “present

circumstantial evidence to prove knowledge of the scheme.” Pierre, 825 F.3d

at 1193.

      The evidence supported the jury’s finding that Coley conspired to file false

claims by (1) agreeing to deliver vacant and fictitious addresses and fraudulently

obtained refund checks to Lanier, (2) knowingly and voluntarily participating in

the tax-fraud scheme, and (3) committing an overt act—in this case, the delivery of

addresses on his postal route and fraudulent refund checks—in furtherance of the

tax-fraud scheme. See 18 U.S.C. § 286.

           b. Mail Fraud

      Because Coley’s counsel moved for acquittal as to Counts 17 and 18

(although not as to Counts 2-14, 16, or 19), these counts are subject to a mixed

standard of review. We apply the tougher de novo standard of review to Coley’s

mail fraud convictions, Jiminez, 564 F.3d at 1284, and will affirm Coley’s

convictions if “a reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt.” Robertson, 493 F.3d at 1329 (quoting United

States v. Tinoco, 304 F.3d 1088, 1122 (11th Cir. 2002)).




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      To prove mail fraud under 18 U.S.C. § 1341, the government must prove,

beyond a reasonable doubt, (1) an intentional participation in a scheme to defraud a

person of money or property, and (2) the use of interstate mails in furtherance of

the scheme. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). “A

scheme to defraud requires proof of a material misrepresentation, or the omission

or concealment of a material fact calculated to deceive another out of money or

property.” Id. “A misrepresentation is material if it has a natural tendency to

influence, or is capable of influencing, the decision maker to whom it is

addressed.” Id. (quotation and marks alteration omitted).

      The government presented the following direct and circumstantial evidence

to prove the mail fraud counts charged in the indictment. Coley’s co-conspirators

testified about his involvement in the scheme and identified him as the mailman

who delivered lists of addresses and fraudulent tax return checks to Lanier.

Although Coley denied providing a list of vacant or fictitious addresses to Lanier,

“we make all reasonable inferences and credibility determinations in favor of the

government.” Robertson, 493 F.3d at 1331. In addition to co-conspirator

testimony, Special Agent Arrington testified that Coley himself partially admitted

his role in the conspiracy during his USPS interview when he admitted that he had

delivered approximately ten refund checks, addressed to different recipients, to

Snell-Quick and ten refund checks, addressed to different recipients, to Lanier.


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The testimony of Coley’s USPS manager established that Coley knew the

abandoned and vacant houses on his route and, although Coley had a duty to return

mail addressed to vacant homes, he never did so. The evidence established that

many of the 692 fraudulent tax refund checks were delivered in September of

2012, and Coley reported to work every single day in September 2012, except

Labor Day.

      Viewing this evidence in the light most favorable to the government and

resolving all reasonable inferences and credibility determinations in favor of the

jury’s verdict, Robertson, 493 F.3d at 1329, it was reasonable for the jury to

conclude that Coley was guilty of mail fraud by (1) intentionally participating in

Lanier’s tax-fraud scheme and (2) using the postal service to obtain address

information and intercept and deliver the fraudulent tax refund checks in

furtherance of that scheme. See 18 U.S.C. § 1341.

         c. Mail Embezzlement

      The jury convicted Coley of embezzling mail, as charged in Counts 38-48.

Coley did not move for acquittal or otherwise preserve an argument regarding the

sufficiency of the evidence on these counts, so we will reverse the jury’s guilty

verdict “only where doing so is necessary to prevent a manifest miscarriage of

justice.’” Fries, 725 F.3d at 1291 (quotation marks omitted).




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      Lastly, to establish the crime of mail embezzlement under 18 U.S.C. § 1709,

the government must show beyond a reasonable doubt that the defendant (1) was a

Postal Service employee, (2) was entrusted with, or came into the possession of,

“any article or thing . . . intended to be conveyed by the mail,” and (3) knowingly

embezzled or stole that article or thing. 18 U.S.C. § 1709. As to the third element,

this Court has held that, in order “to convict a person of mail fraud, the government

must prove specific intent to defraud.” Waymer, 55 F.3d at 568. In so proving, the

government “need not produce direct proof of scienter in a mail fraud case,

however; circumstantial evidence of criminal intent can suffice.” Suba, 132 F.3d

at 673.

      Here, the government provided sufficient evidence to support the jury’s

finding that Coley embezzled mail by (1) being a Postal Service employee, (2) who

was entrusted with tax-refund checks that were intended to be conveyed by mail,

and (3) knowingly embezzled those checks. See 18 U.S.C. § 1709. Because Coley

does not dispute the first two elements, we consider only the third. Although

Coley argues that he never possessed the fraudulent tax refund checks, witnesses

identified Coley as the mailman responsible for providing addresses to Lanier, and

the government provided evidence that 692 fraudulent tax refund checks were

delivered to vacant or abandoned homes located on Coley’s mail route and were

mailed at times when Coley was working. Witnesses also testified that, although


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Coley had a duty to return any mail that was addressed to vacant or abandoned

homes, he never did so. Viewing this evidence in the light most favorable to the

government and resolving all reasonable inferences and credibility determinations

in favor of the jury’s verdict, it was reasonable for the jury to conclude that Coley

knowingly removed the tax refund checks from the mail and took them into his

possession.

      Overall, we cannot conclude that the record was devoid of an essential

element of any of the crimes for which he was convicted or that the evidence

presented was so tenuous that Coley’s convictions are “shocking.” Milkintas, 470

F.3d at 1343. Because the evidence supported the jury’s findings that Coley

conspired to file false claims, committed mail fraud, and embezzled mail, the

jury’s guilty verdict did not constitute a manifest miscarriage of justice.

Accordingly, Coley’s convictions are

      AFFIRMED.




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