               Case: 17-10601       Date Filed: 06/11/2018      Page: 1 of 23


                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 17-10601
                              ________________________

                      D.C. Docket No. 1:15-cr-00009-LJA-TQL-1

UNITED STATES OF AMERICA,

                                                                        Plaintiff - Appellee,

                                            versus

TAMARA ANDREATTA,
STACY RIX,

                                                                  Defendants - Appellants.

                              ________________________

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

                                      (June 11, 2018)

Before MARTIN, JULIE CARNES, and GILMAN, ∗ Circuit Judges.

MARTIN, Circuit Judge:



       ∗
        Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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      Tamara Andreatta and Stacy Rix appeal their convictions for wire fraud and

aggravated identity theft based on their use of corporate credit cards to make

personal purchases. Ms. Andreatta maintains she was authorized to use the credit

cards by the company’s owner and CEO, Jim Whitten, who offered her use of the

cards in exchange for sex. Mr. Rix says he had no knowledge of the purchases.

      The defendants challenge the District Court’s exclusion of a pair of defense

witnesses as well as the court’s refusal to give a jury instruction on the good-faith

defense. They also argue it was error for the District Court to deny their motions

for judgments of acquittal.

      After careful review, and with the benefit of oral argument, we affirm.

                                I. BACKGROUND

A.    FACTUAL BACKGROUND

      Ms. Andreatta and Mr. Rix have been in a relationship since 1989. They

lived together with their two children. Ms. Andreatta handled the family’s

combined finances.

      In early 2006, Mr. Rix and Ms. Andreatta began working for Industrial

Manufacturing in Albany, Georgia. Mr. Rix was hired as a technician. Industrial

gave him a corporate credit card to pay business expenses and required him to keep

it in an office lockbox when he wasn’t traveling. Ms. Andreatta was hired as an

accounts payable clerk, which required her to process vendor invoices, purchase

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orders, and credit card bills for Industrial. She was not given a corporate credit

card.

        At some point in 2006, Ms. Andreatta asked Mr. Whitten for a loan. He lent

her $3,000, to be paid back in $100 weekly deductions from her paycheck. Later,

Ms. Andreatta had a conversation near Mr. Whitten’s office with another employee

about her financial troubles. Mr. Whitten then called her into his office. Ms.

Andreatta testified that Mr. Whitten said “he could help me if I helped him,” which

she understood to mean he’d help her financially if she had sex with him. Ms.

Andreatta was shocked and left his office, but later returned and accepted his

proposal.

        According to Ms. Andreatta, Mr. Whitten then offered her the use of the

company credit cards. He told her to “use them as [she] needed them [and] just to

make sure the bills got paid.” He also told her to hold onto the credit card of

Shirley Richards, a purchasing agent who was leaving the company. About two

weeks later, Ms. Andreatta and Mr. Whitten met at a hotel and had sex. Two days

after that, Ms. Andreatta began using Ms. Richards’s credit card. Ms. Andreatta

testified that Mr. Whitten called her sporadically from November 2006 through

2012—roughly every two to three weeks but sometimes twice a week—to arrange

to meet and have sex. Ms. Andreatta never asked Mr. Whitten how often she could




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use Ms. Richards’s card, how much money she could spend, or what she could use

it for.

          In 2006 Industrial had an unwritten policy that company credit cards could

be used only for business expenses. This policy was written into the employee

handbook in 2010. Due to her position in accounts payable, Ms. Andreatta knew

Industrial had issued cards to non-employees, including Mr. Whitten’s ex-wife.

She also had access to the credit card statements and knew both Mr. Whitten and

his ex-wife used the company credit cards for personal expenses, including

clothing, vehicle repairs, and trips. Ms. Andreatta tried to use Ms. Richards’s card

in the same way as Mr. Whitten and his ex-wife used theirs.

          Ms. Andreatta used Ms. Richards’s and, later, Barbara Griner’s1 cards to get

cash advances and make deposits into her and her mother’s personal accounts.

Those cards were also used to make car payments, pay for auto insurance for cars

owned by Ms. Andreatta and Mr. Rix, and pay for the family’s phone bill, among

other personal expenses. Mr. Rix’s card also showed a number of purchases for

personal items, including Carnival Cruise tickets and airline tickets to Miami for

Ms. Andreatta, Mr. Rix, and their two children. Mr. Rix’s card was also used to

buy auto parts for a Chevrolet Corvette, which were then shipped to Mr. Rix. One

time, Mr. Rix purchased four Corvette tires in person with his corporate credit

          1
        Barbara Griner stopped working for Industrial in 2012, at which point Ms. Andreatta
began using Ms. Griner’s company credit card.
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card. From 2006 to 2013, the total amount of credit card purchases, cash advances,

and direct deposits for Ms. Andreatta and Mr. Rix’s personal use was $466,692.41.

Notwithstanding this supposed arrangement with Mr. Whitten, Ms. Andreatta

obtained a $6,000 loan from Mr. Whitten in 2008 that she repaid, pursuant to a

promissory note, through $100 deductions from each of her paychecks.

      To pay the company’s credit card bills, Ms. Andreatta typically processed

the receipts and generated a check that Mr. Whitten, or two other senior

employees, would review and sign. Ms. Andreatta used her role in Industrial’s

accounts payable division to alter company ledgers to disguise payments being

made from the credit cards assigned to Mr. Rix, Ms. Richards, and Ms. Griner.

She also took the credit card statements out of the mail before Mr. Whitten could

see them. Mr. Whitten said he didn’t always follow the company’s policy of

reviewing receipts to see if they matched the credit card statements. Ms. Andreatta

received approval to pay each of the credit card bills when they were due. Mr.

Whitten estimated he signed 35 of the 159 credit card checks that were issued by

Industrial between 2006 and 2013.

      In August 2013, Mr. Whitten was traveling for business when his corporate

credit card was declined. He learned from the credit card company that the

corporate account was overdrawn, and there were charges on the corporate cards

assigned to Ms. Richards and Ms. Griner. Elzora Dean, Industrial’s office

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manager, investigated the credit card charges. Ms. Andreatta told Ms. Dean she

had used the cards assigned to Ms. Richards and Ms. Griner. Mr. Whitten then

instructed Ms. Dean to call the police.

         Mr. Whitten suspected Mr. Rix might have been involved in the scheme. In

November, Mr. Whitten confronted Mr. Rix. Mr. Whitten testified: “[Mr. Rix]

admitted that [Ms. Andreatta] had made those charges on his account. Basically, at

that point in time, I realized that he was just as guilty as her. He knew, he knew

about it.” Mr. Whitten then fired Mr. Rix.

         Mr. Whitten denied ever having sex with Ms. Andreatta or giving her

permission to use the company credit cards. He confirmed making calls to Ms.

Andreatta after 10 PM, which he said was his cut-off time for making work-related

calls.

B.       PROCEDURAL HISTORY

         Ms. Andreatta and Mr. Rix were charged in a nine-count indictment with

conspiracy to commit wire fraud (Count One), six counts of substantive wire fraud

(Counts Two to Seven), and two counts of aggravated identity theft (Counts Eight

and Nine). The case went to trial.

         At the close of the government’s case-in-chief, Ms. Andreatta and Mr. Rix

both made oral motions for a judgment of acquittal. The District Court denied Ms.

Andreatta’s motion as to Counts Three, Four, Six and Seven, and reserved ruling

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on Counts One,2 Two, Five, Eight and Nine. The District Court denied Mr. Rix’s

motion as to Counts Two and Five, and reserved ruling on the remaining seven

counts.

       Ms. Andreatta then testified in her own defense. She described in detail how

Mr. Whitten propositioned her for sex, how she met him whenever he demanded

sex, and how she understood that in exchange she was authorized to use the

corporate credit cards. She also testified that Mr. Rix did not know about her use

of corporate credit cards for personal charges, including the charges on Mr. Rix’s

corporate card.

       Ms. Andreatta attempted to call Jennifer Owens as a witness. Her attorney

proffered that Ms. Owens would testify that Mr. Whitten had once propositioned

Ms. Owens for sex in his office. The District Court excluded Ms. Owens’s

testimony because it was not relevant to whether Mr. Whitten had, at a different

time, offered Ms. Andreatta authorization to use the corporate credit cards.




       2
          There is some conflict in the record over the District Court’s ruling on Count One. At
the close of the government’s case-in-chief, the court stated “[a]s to Count 1, I’m going to
overrule your motion.” However, when Ms. Andreatta renewed her motion after presenting her
evidence, the court stated “I’ll continue to reserve ruling on 1, 2, 5, 8, 9.” Later, when the court
ruled on Mr. Rix’s written motion for judgment of acquittal, it indicated that it had reserved
ruling on Count One with respect to both Mr. Rix and Ms. Andreatta, and discussed that Count in
the order denying the motion. Taking the record as a whole, we understand that the District
Court did not orally deny the motion as to Count One, but instead reserved ruling on it until after
the jury rendered its verdict.

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      After presenting her case Ms. Andreatta renewed her motion for a judgment

of acquittal. The District Court continued to reserve its ruling on Counts One,

Two, Five, Eight and Nine. Mr. Rix also renewed his motion, and the District

Court restated its earlier ruling.

      Mr. Rix then recalled Ms. Dean and attempted to ask her about Mr.

Whitten’s statements explaining why he fired Mr. Rix. The District Court

sustained the government’s hearsay objection and did not allow Ms. Dean to testify

to those statements.

      At the close of evidence, Ms. Andreatta asked the District Court to give an

instruction on the defense of good faith. The District Court refused the proposed

good-faith instruction, ruling that those issues were already covered by the

instructions defining willfulness and the intent to defraud.

      The jury convicted Ms. Andreatta on all nine counts. The jury found Mr.

Rix guilty on Counts One through Seven but acquitted on Counts Eight and Nine,

which were the aggravated identity theft charges.

      After the jury verdict, Mr. Rix renewed in writing his motion for a judgment

of acquittal. The District Court denied the written motion, as well as the oral

motions for judgment of acquittal that it had reserved ruling on during trial. The

District Court found the government had introduced sufficient evidence at trial

that, if believed, would allow a jury to find the defendants guilty beyond a

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reasonable doubt. The District Court sentenced Ms. Andreatta to 61-months

imprisonment and sentenced Mr. Rix to 24 months.

        Both Ms. Andreatta and Mr. Rix filed the appeals we consider here.

                                  II. DISCUSSION

        Ms. Andreatta and Mr. Rix collectively raise six issues on appeal: (1)

whether Ms. Owens should have been allowed to testify; (2) whether Ms. Dean

should have been allowed to testify during Mr. Rix’s case-in-chief; (3) whether the

District Court should have instructed the jury on the defense of good faith; (4)

whether the government sufficiently proved a conspiratorial agreement; (5)

whether the government sufficiently proved lack of authorization; and (6) whether

the government sufficiently proved Mr. Rix’s involvement in the fraud.

   A.      EXCLUDED WITNESS TESTIMONY

        The District Court’s evidentiary decisions are reviewed for abuse of

discretion. United States v. Todd, 108 F.3d 1329, 1331–32 (11th Cir. 1997). “A

district court abuses its discretion if it misapplies the law or makes findings of fact

that are clearly erroneous.” Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317,

1333 (11th Cir. 2004). The District Court’s discretion “does not . . . extend to the

exclusion of crucial relevant evidence necessary to establish a valid defense.”

Todd, 108 F.3d at 1332 (quotation omitted). “When proffered evidence is of

substantial probative value, and will not tend to prejudice or confuse, all doubt

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should be resolved in favor of admissibility.” Id. (quotation omitted); see also Fed.

R. Evid. 403 (“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”). Evidentiary decisions are subject to harmless-error

analysis. United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007).

       1. Jennifer Owens

       Ms. Andreatta argues that the District Court should not have excluded Ms.

Owens’s testimony.

       In her factual proffer during trial, Ms. Andreatta explained that Ms. Owens

was a former Industrial employee whom Mr. Whitten propositioned for sex in his

office in exchange for money. When Ms. Owens refused, she was fired. Ms.

Andreatta argued Ms. Owens’s testimony would corroborate her account by

showing that Mr. Whitten had a pattern of propositioning employees for sex. 3

       The District Court did not allow Ms. Owens’s testimony, stating the relevant

issue was not whether Ms. Andreatta had a sexual relationship with Mr. Whitten,

but whether Mr. Whitten had given her permission to use the corporate credit

cards. Because Ms. Owens was not going to testify about Mr. Whitten offering use


       3
       Ms. Andreatta also argued at trial that Ms. Owens’s testimony could be used to impeach
Mr. Whitten, but she did not raise that argument on appeal.

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of the corporate credit cards, the District Court excluded her testimony as

irrelevant. The District Court also found that, “even if I did deem it relevant, the

prejudicial value certainly outweighs any probative effect.”

      The District Court did not abuse its discretion in excluding this testimony.

The District Court reasoned that even if the jury believed Mr. Whitten

propositioned Ms. Andreatta for sex, this would not answer the question of

whether Mr. Whitten authorized her to use the corporate credit cards. The District

Court did not abuse its discretion by excluding Ms. Owens’s testimony. The

salacious details of Ms. Owens’s testimony could well have distracted from the

relevant question of whether Ms. Andreatta was authorized to use the company

credit cards for personal use. See Fed. R. Evid. 403.

      2. Elzora Dean

      Mr. Rix contends the District Court should have allowed Ms. Dean to testify

during his case-in-chief. He argues Ms. Dean’s testimony would have impeached

Mr. Whitten’s testimony about why he fired Mr. Rix. Generally, impeachment

testimony based on a prior inconsistent statement is allowed as an exception to the

hearsay rule. See Khanani, 502 F.3d at 1292; see also Fed. R. Evid. 613.

      On direct examination, Mr. Whitten testified “[Mr. Rix] told me that he

knew that Tami was making these charges on his credit card.” On cross

examination, Mr. Rix’s attorney asked Mr. Whitten the following question:

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      Could you have told Ms. Dean, went to her and said what do you
      think about Stacy, I can't have him in here, whether he knew about it
      or not, he knows about it now, he's living with her? And then you
      went out there and fired him, fired Mr. Rix.

Mr. Whitten responded, “I don’t recall making that—I don’t recall that statement.

I don’t recall making it to Tami, but it does sound like something I might say

because this—I was concerned, sir.” Mr. Rix’s attorney asked Mr. Whitten again

if he told Ms. Dean that “I can’t have [Mr. Rix] in here, whether he knew about it

or not, he knows about it now, he’s still living with her.” Mr. Whitten responded,

“That’s right. He’s still living with her.” The District Court found there was no

prior inconsistent statement and therefore did not permit Ms. Dean’s testimony.

      Mr. Rix argues this ruling is at odds with United States v. Billue, 994 F.2d

1562 (11th Cir. 1993), which held “[t]he law is clear that if a witness has denied

making a statement or has failed to remember it, the making of the statement may

be proved by another witness.” Id. at 1565–66. But Billue does not describe the

situation here. Mr. Whitten’s statement falls somewhere between a denial and an

affirmation: it’s the lack of a denial. And he didn’t merely say he didn’t

remember—he conceded “it does sound like something I might say.” And when

the question was rephrased, he agreed with the premise of his alleged statement.

For this reason, the exclusion of Ms. Dean’s testimony does not rise to the level of

an abuse of discretion.



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      Even if it was error to exclude Ms. Dean’s testimony, the error is harmless.

See Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483 (1988) (“The

constitutionally improper denial of a defendant’s opportunity to impeach a witness

. . . is subject to . . . harmless-error analysis.” (quotation omitted)). The jury heard

Mr. Whitten say on direct that Mr. Rix knew of the fraud, but they also heard him

say on cross that he might have told Ms. Dean he didn’t care whether Mr. Rix

knew. That inconsistency—of whatever degree—was already before the jury.

      Mr. Rix nonetheless argues “there was no other direct evidence to support

the allegation that [he] was aware of Ms. Andreatta’s unauthorized use of company

credit cards.” This is not true. There was testimony that Mr. Rix had used his

company credit card to buy tires for his Corvette, thus showing a personal

involvement in the scheme. And the jury could infer his knowledge from

circumstantial evidence—the scope of the credit card payments, Mr. Rix’s receipt

of the benefits, and his close relationship with Ms. Andreatta.

      For these reasons, the exclusion of Ms. Dean’s testimony from Mr. Rix’s

case-in-chief was not an abuse of discretion.

B.    GOOD-FAITH JURY INSTRUCTION

      Ms. Andreatta argues the District Court erred by refusing to instruct the jury

on her good-faith defense.




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      “The district court’s refusal to deliver a jury instruction requested by

defendant constitutes reversible error if the instruction (1) is correct, (2) is not

substantially covered by other instructions which were delivered, and (3) deals

with some point in the trial so vital that the failure to give the requested instruction

seriously impaired the defendant’s ability to defend.” United States v. Opdahl, 930

F.2d 1530, 1533 (11th Cir. 1991) (quotations omitted).

      Prior to trial, Ms. Andreatta proposed the following instruction:

      “Good faith” is a complete defense to a charge that requires intent to
      defraud. A defendant isn’t required to prove good faith. The
      Government must prove intent to defraud beyond a reasonable doubt.

      An honestly held opinion or an honestly formed belief cannot be
      fraudulent intent—even if the opinion or belief is mistaken. Similarly,
      evidence of a mistake in judgment, an error in management, or
      carelessness can’t establish fraudulent intent.

      But an honest belief that a business venture would ultimately succeed
      doesn’t constitute good faith if the Defendant intended to deceive
      others by making representations the Defendant knew to be false or
      fraudulent.

The District Court excluded this proposed instruction because it was duplicative of

other instructions that defined “willful” and “intent to defraud.”

      In United States v. Goss, 650 F.2d 1336 (5th Cir. Unit A. July 1981), the

Fifth Circuit held a District Court’s refusal to give a good-faith instruction was




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reversible when there was “any evidentiary support whatsoever” for it.4 Id. at

1344–45. Cases since then have not used this “any evidence” standard, but have

focused instead on whether the requested instruction was duplicative of the

instructions already given.5 See Opdahl, 930 F.2d at 1533. For instance, in United

States v. McNair, 605 F.3d 1152 (11th Cir. 2010), this Court affirmed the refusal to

give a good-faith instruction because the District Court had given an instruction

defining the “intent to defraud” that “necessarily excludes a finding of good faith,”

meaning the requested charge was “substantially covered by other instructions that

were delivered.” Id. at 1201 n.65 (quotation omitted).

       This case is indistinguishable from McNair. The District Court here

instructed the jury that it could convict only if Ms. Andreatta’s actions were done

knowingly or willfully. The court defined “knowingly” to mean “that an act was

done voluntarily and intentionally,” and defined “willfully” to mean “the act was

committed voluntarily and purposely, with the intent to do something that the law

forbids, that is, with a bad purpose to disobey or disregard the law.” For the

substantive fraud counts, the District Court instructed the jury that the government

needed to prove intent to defraud, and defined “intent to defraud” as “a specific

       4
          In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
Id. at 1209.
       5
        The Fifth Circuit has abandoned the Goss standard. See United States v. Hunt, 794 F.2d
1095, 1097–98 (5th Cir. 1986) (noting that “later caselaw has effectively by-passed [Goss]”).

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intent to deceive or cheat someone, usually for personal financial gain, or to cause

financial loss to someone else.” This last instruction is very similar to the

instruction at issue in McNair. See id. at 1201 n.65 (“The court defined ‘intent to

defraud’ as ‘to act knowingly and with the specific intent to deceive someone.’”).

      Ms. Andreatta argues the good-faith instruction was nonetheless necessary

because the “bad purpose” language of the court’s instruction might have led to

jury confusion. As her counsel explained at oral argument, Ms. Andreatta took

steps to hide her affair from her coworkers, and without further instruction the jury

could have misinterpreted that as evidence of willful fraud. However the “bad

purpose” language included in the jury charge did not arise in isolation. The

District Court explained that “willfully” included acts done “with a bad purpose to

disobey or disregard the law.” From this instruction, the jury could convict only if

it found that Ms. Andreatta’s “bad purpose” was to break the law.

      Because the substance of the good-faith instruction was covered by other

instructions, any error in refusing to give the instruction does not warrant reversal.

See Opdahl, 930 F.2d at 1533. That said, the government conceded at oral

argument it should not have objected to the good-faith instruction, and the District

Court “would have been wiser” to give the requested instruction. See United

States v. Martinelli, 454 F.3d 1300, 1317 (11th Cir. 2006).




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C.     MOTIONS FOR ACQUITTAL

       Both defendants challenge the District Court’s denial of their motions for

judgment of acquittal, including the oral motions made at trial and Mr. Rix’s

written motion. 6

       The District Court’s denial of a motion for judgment of acquittal is reviewed

de novo, viewing “the evidence in the light most favorable to the government and

[drawing] all reasonable inferences and credibility choices in favor of the jury’s

verdict.” United States v. Vernon, 723 F.3d 1234, 1266 (11th Cir. 2013)

(quotation omitted). “To uphold the denial of a Rule 29 motion, we need only

determine that a reasonable fact-finder could conclude that the evidence

established the defendant’s guilt beyond a reasonable doubt.” United States v.

Descent, 292 F.3d 703, 706 (11th Cir. 2002) (per curiam) (quotation omitted).

       If the District Court “reserves ruling on a motion for judgment of acquittal,

the court must decide the motion on the basis of the evidence at the time the ruling

was reserved.” United States v. Moore, 504 F.3d 1345, 1346 (11th Cir. 2007).

This means the District Court looks to “a snapshot of the evidence at the point that

the court reserves its ruling.” Id. at 1347.




       6
          Ms. Andreatta challenges only the rulings on the conspiracy charge and aggravated
identity theft charges. She does not challenge her convictions on the substantive wire fraud
charges.

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        1. Conspiratorial Agreement

        Both defendants argue the government did not sufficiently prove an

agreement to commit wire fraud.

        A conviction for conspiracy to commit wire fraud under 18 U.S.C. § 1349

requires proof of “(1) intentional participation in a scheme to defraud, and, (2) the

use of the interstate . . . wires in furtherance of that 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. Unlike the

generic federal conspiracy statute, 18 U.S.C. § 371, a conviction under 18 U.S.C.

§ 1349 does not require proof of an overt act in furtherance of the conspiracy. See

United States v. Moran, 778 F.3d 942, 964 (11th Cir. 2015).

        The defendants are correct that there was little direct evidence of an

agreement between Mr. Rix and Ms. Andreatta to engage in a scheme to defraud.

Mr. Whitten offered somewhat-equivocal testimony that he believed Mr. Rix knew

of the credit card use. Ms. Andreatta testified the opposite: that Mr. Rix did not

know.

        Yet there was circumstantial evidence of an agreement. Ms. Griner’s and

Ms. Richards’s credit cards were used for personal purchases for the family,

including car-loan and auto-insurance payments for cars that Mr. Rix drove. Mr.

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Rix’s card was used to purchase Carnival Cruise tickets and airline tickets for trips

he went on.7 That card was also used to purchase Corvette parts that were shipped

to Mr. Rix, and he purchased Corvette tires in person with the corporate card.

When Mr. Whitten asked Mr. Rix to turn in his corporate credit card, the card was

in Mr. Rix’s wallet, not in the office lockbox as the rules required. Finally, Mr.

Rix made $22.50 an hour, and Ms. Andreatta made between $10 and $16.50 an

hour. A reasonable jury could find that Mr. Rix would notice $466,692.41 in extra

family income over a six-year period.

       From this circumstantial evidence, a jury could believe that Mr. Rix knew of

the scheme and voluntarily participated in it, thereby evincing an agreement with

Ms. Andreatta to achieve an unlawful objective. Drawing all inferences in favor of

the jury’s verdict, this is sufficient to sustain a conviction for the conspiracy

charge. See United States v. Knowles, 66 F.3d 1146, 1155 (11th Cir. 1995) (“[T]he

existence of a conspiracy may [be], and often is, . . . proved by circumstantial

evidence, such as inferences from the conduct of the alleged participants or

from circumstantial evidence of a scheme.” (quotation omitted)); see also United

States v. Jennings, 599 F.3d 1241, 1251 (11th Cir. 2010) (affirming conspiracy

conviction based on “a credibility call belonging to the jury” and participation by a


       7
         Ms. Andreatta testified that Mr. Rix asked where the money came from for the cruise
and that she told him it was an income tax refund.

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conspirator “significantly past any point where he could convincingly claim

ignorance”).

      2. Authority to Use Credit Cards

      Ms. Andreatta argues the government did not sufficiently prove the

aggravated identity theft charges because the evidence showed she was authorized

to use Ms. Griner’s and Ms. Richards’s credit cards.

      A conviction for aggravated identity theft requires proof that the means of

identification of another person was used “without lawful authority.” United

States v. Pierre, 825 F.3d 1183, 1194 (11th Cir. 2016) (quotation omitted). The

evidence supporting Ms. Andreatta’s defense is mainly her own testimony that Mr.

Whitten offered to help her financially in exchange for sex, and then approved the

credit card payments she had made.

      However, this evidence must be weighed against the evidence that Ms.

Andreatta altered the credit card ledgers and purposefully took the credit card

statements out of the mail before they got to Mr. Whitten. This evidence could

support a finding that Ms. Andreatta wanted to conceal the payments from Mr.

Whitten. Mr. Whitten’s decision to call the police when he learned of the charges

undercuts Ms. Andreatta’s assertion that he’d given her permission to use the credit

cards for her personal needs. And Ms. Andreatta’s testimony is opposed by Mr.

Whitten’s testimony that he never had a sexual relationship with her and, more

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importantly, that he never gave her authorization to use the credit cards. Beyond

that, Ms. Andreatta testified that she obtained a $6,000 loan from Mr. Whitten in

February 2008, which she repaid through deductions from her paycheck. She

offered no explanation for why she required a loan from Mr. Whitten if she already

had permission to make charges to company credit cards.

      We must resolve issues of credibility and all other inferences in favor of the

jury’s verdict. Vernon, 723 F.3d at 1266. If the jury believed Mr. Whitten’s

testimony and disbelieved Ms. Andreatta’s, then it could reasonably find she had

no authorization. Therefore the District Court correctly denied Ms. Andreatta’s

Rule 29 motion on these claims.

      3. Mr. Rix’s Involvement

      Mr. Rix argues the government did not sufficiently prove his knowledge and

involvement in the scheme. He challenges his conviction for all six substantive

counts of wire fraud.

      “The elements of wire fraud under 18 U.S.C. § 1343 are (1) intentional

participation in a scheme to defraud and (2) use of the interstate wires in

furtherance of the scheme.” United States v. Hasson, 333 F.3d 1264, 1270 (11th

Cir. 2003). “[T]o convict under a theory of aiding and abetting, the government

must prove that (1) someone committed the substantive offense; (2) the defendant

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

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commission.” United States v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015).

However, “a defendant may be convicted of mail fraud without personally

committing each and every element of mail fraud, so long as the defendant

knowingly and willfully joined the criminal scheme, and a co-schemer used the

mails for the purpose of executing the scheme.” United States v. Ward, 486 F.3d

1212, 1223 (11th Cir. 2007) (footnote omitted). This rule, which references mail

fraud, applies with equal force to the crime of wire fraud. See United States v.

Evans, 473 F.3d 1115, 1118 n.3 (11th Cir. 2006) (noting identical language in the

mail fraud and wire fraud statutes allows courts to “borrow freely” from cases

construing each statute).

      Mr. Rix was convicted of conspiracy to commit wire fraud. That conviction

required proof beyond a reasonable doubt that Mr. Rix intentionally participated in

a scheme to defraud. See Maxwell, 579 F.3d at 1299. Under this Circuit’s

precedent, Mr. Rix is therefore vicariously liable for Ms. Andreatta’s use of

company credit cards to make non-business purchases. See Ward, 486 F.3d at

1225. Accordingly, sufficient evidence supports Mr. Rix’s conviction on all six

wire-fraud counts, whether or not the scope of the review is confined to the

evidence presented in the government’s case-in-chief. The District Court did not

err in denying his motion for acquittal.




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                               III. CONCLUSION

      The District Court did not abuse its discretion in its evidentiary rulings, nor

in its rejection of Ms. Andreatta’s requested jury instruction. As to the motions for

a judgment of acquittal, because the jury evidently believed Mr. Whitten and did

not believe Ms. Andreatta, there was sufficient evidence to convict.

      AFFIRMED.




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