                Case: 14-11699       Date Filed: 10/04/2018       Page: 1 of 30


                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                Nos. 14-11699 & 15-12697
                               ________________________

                         D.C. Docket No. 1:08-cr-21158-RNS-4



UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,
                                             versus

ANTHONY LIVOTI,

                                                                    Defendant-Appellant.

                               ________________________

                      Appeals from the United States District Court
                          for the Southern District of Florida
                              _______________________

                                      (October 4, 2018)

Before WILLIAM PRYOR, Circuit Judge, and RESTANI, * Judge.

PER CURIAM: **



*
  Honorable Jane A. Restani, United States Judge for the Court of International Trade, sitting by
designation.
**
  After oral argument, Judge Jill Pryor recused herself and did not participate in this decision,
which is rendered by a quorum. 28 U.S.C. § 46(d).
              Case: 14-11699     Date Filed: 10/04/2018    Page: 2 of 30


      Anthony Livoti appeals his convictions for mail fraud, 18 U.S.C. § 1341;

conspiracy to commit mail and wire fraud, 18 U.S.C. § 1349; and conspiracy to

commit money laundering, 18 U.S.C. § 1956(h). Livoti served as trustee for

Mutual Benefits Corporation, which operated a scheme to defraud thousands of

investors who purchased its viatical investments. As trustee, Livoti was responsible

for safeguarding investors’ money. But Livoti took money from new investors to

pay for premiums of old investors. Although Livoti knew that Mutual Benefits was

running a deficit, he continued to assure investors that Mutual Benefits was a safe

investment. After an 11-week trial, the jury convicted Livoti for his involvement in

the fraudulent scheme at Mutual Benefits. Livoti argues that the government

presented insufficient evidence to support his convictions. He also challenges

several evidentiary rulings and contends that the government improperly bolstered

the credibility of one of its witnesses. And Livoti argues that the district court erred

when it denied his motion for a new trial based on juror misconduct. These

arguments fail. We affirm.

                                 I. BACKGROUND

      Mutual Benefits was a viatical investment company in Fort Lauderdale,

Florida, owned by Joel Steinger, Leslie Steinger, Steven Steiner, and Peter

Lombardi. A viatical is an investment in which the insured, usually an elderly or

terminally ill person, sells his life-insurance policy to an investor. The investor



                                           2
              Case: 14-11699    Date Filed: 10/04/2018    Page: 3 of 30


then pays the premiums for the policy so long as the insured lives, and the investor

profits if the amount he invests is less than the payout he receives when the insured

dies. Mutual Benefits bought viaticals and then sold fractional shares of those

viaticals to other investors. Mutual Benefits was responsible for paying premiums

on the policies.

      Livoti, an attorney, served as the premiums trustee for Mutual Benefits.

Investors signed trust agreements that made Livoti the owner of the viatical

policies and made the investors irrevocable beneficiaries of the policies. As trustee,

Livoti was a fiduciary of the investors. He was obligated to represent the investors’

best interests, to protect the premium money, and to use the premium money in

accordance with the trust agreements.

      Mutual Benefits assured investors that its viaticals were safe and profitable

investments. Lombardi explained that Mutual Benefits marketed itself as a “no risk

investment” with “total fixed returns.” To prove that its viaticals were safe

investments, employees told investors and sales brokers that Mutual Benefits used

independent physicians to project the life expectancies of the insureds. Because the

owner of the policy owed premiums as long as the insured lived, an investor would

use the physician’s projection to measure how safe that viatical would be as an

investment. If an insured lived longer than expected, an investor would lose money




                                          3
             Case: 14-11699     Date Filed: 10/04/2018   Page: 4 of 30


because the total amount invested in that viatical—the purchase price plus the

premiums—would exceed the insurance benefit.

      Although Mutual Benefits touted its projections as 80 percent accurate, Joel

Steinger fabricated projections for whatever life expectancy an investor wanted. He

then sent the fake projections to a so-called “independent” physician, who

endorsed them. Indeed, these fake projections were not even completed before an

investor agreed to buy a policy. Mutual Benefits then backdated the physician’s

signature.

      Unsurprisingly, Joel Steinger’s fake projections underestimated the life

expectancies of the insureds. About 80 percent of the insureds outlived their

projected life expectancies. But Mutual Benefits had to pay premiums as long as

those insureds lived. If Mutual Benefits failed to pay premiums for a policy, the

insurance company could cancel that policy, and the viatical would become

worthless. And the fake projections meant that there was never enough money set

aside to pay premiums as they were due. On paper, Mutual Benefits looked like a

safe investment, but in fact it was a Ponzi scheme.

      As money was running out, Livoti tried to keep Mutual Benefits afloat by

using money from new investors to pay premiums for policies owned by old

investors. Because Mutual Benefits never had enough money, Lombardi explained

that they “were always playing catch up.” But the trust agreements did not permit



                                         4
              Case: 14-11699    Date Filed: 10/04/2018    Page: 5 of 30


Livoti to use one investor’s money to pay another investor’s premiums except in a

few circumstances. For example, if an insured died before his projected life

expectancy, Livoti could use any remaining money for that policy to pay other

investors’ premiums. And Livoti could use a limited pool of reserve funds to pay

premiums for a policy that had exhausted its reserves. Absent those narrow

circumstances, Livoti was not permitted to use money from new investors to pay

premiums of old investors.

      Livoti knew that Mutual Benefits did not have enough money in its account

to pay premiums for each policy. Ameer Khan served as president of Viatical

Services Inc., a separate entity that tracked the policies sold by Mutual Benefits

and notified Mutual Benefits when premiums were due. On several occasions,

Khan discussed his concerns about the deficit in the account with Livoti, and he

showed Livoti reports of the deficit. Khan explained to Livoti that insureds

outliving their projections had caused a “total drain” of the account. After about six

of these conversations, Khan told Livoti that “it is going down,” and Livoti finally

“started taking things seriously.” In addition to his discussions with Khan, Livoti

discussed the deficit with Lombardi, an owner of Mutual Benefits, and Michael

McNerney, an outside attorney for Mutual Benefits.

      Harris Solomon, another outside attorney for Mutual Benefits, reviewed

Livoti’s management of the account and told Livoti that intentionally “using one



                                          5
              Case: 14-11699     Date Filed: 10/04/2018   Page: 6 of 30


investor’s money to pay for another investor’s obligation” might be a crime.

Solomon’s review revealed that money from one investor had been used to pay

another investor’s premiums. Solomon told Livoti to open a separate account for

new investors’ money and to stop using the money from new investors to pay for

premiums of old investors. But Solomon never finished his review because

McNerney told him that someone else would complete it.

      Despite these warnings, Livoti continued to use money from new investors

to pay old investors’ premiums. Livoti followed Solomon’s advice by opening a

separate account for money from new investors. But Livoti continued to use that

money to pay for old investors’ premiums. And Livoti admitted that he freely

transferred money—almost $6 million—from the new investor account to pay for

old investors’ premiums.

      Despite his knowledge to the contrary, Livoti continued to assure investors

that Mutual Benefits had more than enough money to pay premiums on the

policies. He requested bank statements to show investors that the accounts had $20

million. But these bank statements were misleading because Mutual Benefits was

in fact running a deficit because of the large amount of premiums due. Livoti also

assured investors that he was a neutral trustee. Yet Livoti participated in

promotional tours, spoke at monthly sales seminars, and appeared in marketing

videos for Mutual Benefits. At one promotional tour, Livoti “boasted” that Mutual



                                          6
              Case: 14-11699      Date Filed: 10/04/2018    Page: 7 of 30


Benefits had “plenty of money” and could pay premiums “just based off the

interest.”

       Livoti also engaged in fraudulent gift assignments. Mutual Benefits bought

some policies that contained no-value restrictions. If a policy had a no-value

restriction, it could be transferred only as a gift, not for any value. To avoid this

restriction, Mutual Benefits would assign that policy as a “gift” to “Anthony M.

Livoti, Jr.,” the individual—instead of “Anthony M. Livoti, Jr., P.A.,” the

corporate entity. Then, Livoti would sign a letter sent to the insurance company

that designated Mutual Benefits investors as his beneficiaries on that policy. Livoti

represented to the insurance company that the investors were his “friends.”

       Mutual Benefits concealed the fraudulent gift assignments by maintaining

the “Livoti line,” a special phone number that allowed employees to communicate

with an insurance company without revealing that Mutual Benefits owned that

policy. If an insurance company called the Livoti line, the employees would

answer the call as Livoti’s “law office” instead of “Mutual Benefits.” Livoti listed

the number for the Livoti line in letters sent to insurance companies. Mutual

Benefits had to conceal the fraudulent gift assignments because those policies

could be voided if the fraud was discovered.

       In May 2004, the Securities and Exchange Commission filed a complaint

against Mutual Benefits and some of its employees in the district court. Livoti was



                                           7
              Case: 14-11699     Date Filed: 10/04/2018   Page: 8 of 30


not named as a defendant in that civil proceeding, but he was deposed. The

Commission alleged that Mutual Benefits committed securities fraud through its

operation of a Ponzi scheme. The district court issued a preliminary injunction

followed later by a permanent injunction. The district court also appointed a

receiver to oversee the disposition of the assets left at Mutual Benefits. By the time

Mutual Benefits was shut down, it owned over 8,000 policies.

      At trial, the government introduced evidence of Livoti’s role in the

fraudulent scheme at Mutual Benefits. The government called Alise Johnson, an

attorney who prosecuted the Commission’s civil action against Mutual Benefits

and deposed Livoti. She testified about the Commission’s allegations of the

scheme and the outcome of the civil proceeding. She also discussed her deposition

of Livoti for that proceeding.

      The government also called Lombardi, who cooperated with the prosecution

of Livoti and others involved in the scheme at Mutual Benefits. Lombardi

discussed his prior testimony in the trial of Steven Steiner. And he discussed his

cooperation with the government in the investigation of several other cohorts.

      The government called several witnesses who pleaded guilty to crimes

associated with the fraudulent scheme at Mutual Benefits. Khan testified about the

circumstances surrounding his guilty plea and the substance of that plea. Khan also

referenced the guilty pleas of Steven Ziegler, an outside attorney for Mutual



                                          8
                Case: 14-11699   Date Filed: 10/04/2018    Page: 9 of 30


Benefits, and Raquel Kohler, an employee of Mutual Benefits. The jury also heard

about the guilty pleas of McNerney and Bari Wiggins, an administrative assistant

of Mutual Benefits. The district court gave limiting instructions

contemporaneously with the admission of each guilty plea and at closing

instructions.

      In defense, Livoti argued that, although Mutual Benefits was ridden with

fraud, he was not part of the fraud and was “kept in the dark.” In his opening

statement, Livoti’s counsel used an organizational chart to tell the jury that almost

all of his cohorts at Mutual Benefits pleaded guilty. But “[o]ff to the right a[t] that

lonely end . . . is Tony Livoti,” and Livoti was “not part of the business or

decision-making model” for Mutual Benefits. Thus, the defense strategy was “to

prosecut[e] Mutual Benefits to exonerate Tony Livoti.” That strategy failed.

      The jury convicted Livoti of two counts of mail fraud, conspiracy to commit

mail and wire fraud, and conspiracy to commit money laundering. The district

court sentenced Livoti to 120 months of imprisonment and three years of

supervised release. The district court also ordered Livoti to pay a special

assessment of $400 and restitution of $826,839,642, owed jointly and severally.

      While Livoti’s appeal was pending, the district court informed the parties

that it discovered that Juror J.D. mistakenly responded to a jury summons for his

father. Juror J.D. shared the same name and address as his father. The district court



                                           9
             Case: 14-11699     Date Filed: 10/04/2018    Page: 10 of 30


explained that “everyone, including Juror J.D.,” failed to realize the mistake before

the trial. Juror J.D. truthfully completed his juror questionnaire and truthfully

answered questions during voir dire. The district court informed the parties out of

an abundance of caution, but it concluded that further action was unnecessary.

      Livoti immediately moved for a new trial based on juror misconduct, but the

district court denied his motion. The district court explained that Livoti could not

obtain a new trial based on juror misconduct because he could not prove that Juror

J.D. was motivated by actual bias. It decided that no evidentiary hearing on the

motion was necessary because Livoti’s request was “speculative and

unsubstantiated” because he did not allege “any misconduct, only an honest, non-

prejudicial mistake.”

                                  II. DISCUSSION

      We divide our discussion in several parts. First, we explain that sufficient

evidence supported Livoti’s convictions. Next, we explain that that district court

did not plainly err when it permitted testimony about the civil proceeding against

Mutual Benefits. We then explain that the district court did not plainly err when it

permitted testimony about the guilty pleas of Livoti’s cohorts. We next explain the

government did not improperly bolster its witness’s testimony. Finally, we explain

that the district court did not abuse its discretion when, without an evidentiary

hearing, it denied Livoti’s motion for a new trial.



                                          10
               Case: 14-11699    Date Filed: 10/04/2018    Page: 11 of 30


               A. Sufficient Evidence Supported Livoti’s Convictions.

      Livoti challenges the sufficiency of the evidence for his convictions for mail

fraud, 18 U.S.C. § 1341; conspiracy to commit mail and wire fraud, 18 U.S.C.

§ 1349; and conspiracy to commit money laundering, 18 U.S.C. § 1956(h). We

review the sufficiency of the evidence de novo. United States v. Maxwell, 579 F.3d

1282, 1299 (11th Cir. 2009). But we must “resolve any conflicts in favor of the

[g]overnment, draw all reasonable inferences that tend to support the prosecution’s

case, and assume that the jury made all credibility choices in support of the

verdict.” Id. The evidence is sufficient if “a reasonable trier of fact could find that

the evidence established guilt beyond a reasonable doubt.” Id. (quoting United

States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996)). And “we will not disturb a

guilty verdict unless, given the evidence in the record, ‘no trier of fact could have

found guilt beyond a reasonable doubt.’” United States v. Silvestri, 409 F.3d 1311,

1327 (11th Cir. 2005) (quoting United States v. Lyons, 53 F.3d 1198, 1202 (11th

Cir. 1995)).

      To establish mail or wire fraud, the government must prove (1) that the

defendant “intentional[ly] participat[ed] in a scheme to defraud,” and (2) that he

used “the interstate mails or wires in furtherance of that scheme.” Maxwell, 579

F.3d at 1299. To establish a conspiracy to commit mail fraud, wire fraud, or money

laundering, “the government must prove that an agreement existed between two or



                                           11
             Case: 14-11699     Date Filed: 10/04/2018    Page: 12 of 30


more persons to commit a crime and that the defendant knowingly and voluntarily

joined or participated in the conspiracy.” United States v. Vera, 701 F.2d 1349,

1357 (11th Cir. 1983). As at his trial, Livoti does not dispute on appeal that a

fraudulent scheme existed at Mutual Benefits. Instead, Livoti argues that the

evidence was insufficient to prove that he knowingly joined that scheme or that he

intended to defraud investors. We disagree.

      Livoti contends that the government’s evidence was “tenuously

circumstantial,” but “we draw no distinction between circumstantial and direct

evidence.” Silvestri, 409 F.3d at 1328. The government may present circumstantial

evidence to prove both a defendant’s knowledge of a scheme, see Maxwell, 579

F.3d at 1299, and his intent to defraud, see United States v. Hawkins, 905 F.2d

1489, 1496 (11th Cir. 1990). To prove that the defendant knew of a fraudulent

scheme, the government need prove only “that the defendant knew the essential

object of the conspiracy.” Silvestri, 409 F.3d at 1328 (citation and quotation marks

omitted). The government need not prove that the defendant knew of every aspect

of the fraudulent scheme. Id. at 1329. And to prove that the defendant intended to

defraud, the government need prove only that the defendant “believed that he could

deceive the person to whom he made the material misrepresentation out of money

or property of some value.” Maxwell, 579 F.3d at 1301 (citation and quotation

marks omitted). The jury may infer the defendant’s intent to defraud from his



                                          12
             Case: 14-11699     Date Filed: 10/04/2018   Page: 13 of 30


conduct, see id., or from the existence of the scheme, see United States v. Bradley,

644 F.3d 1213, 1239 (11th Cir. 2011).

      Livoti argues that nothing in the government’s evidence “pointed strongly to

[his] guilty knowledge and intent,” but we disagree. Livoti knew that Mutual

Benefits “was hemorrhaging money and unable to sustain its operations without a

constant influx of investment capital.” United States v. Edwards, 526 F.3d 747,

756 (11th Cir. 2008) (internal quotation marks omitted). The deficit in the

premium account was well known within Mutual Benefits, and Livoti knew about

it. Lombardi testified that he discussed the deficit with Livoti and that Livoti was

“very concerned that the money was running out.” Khan showed Livoti reports that

reflected the deficit. When Livoti saw the reports, Khan told him “it is going

down.” The deficit was caused by the insureds outliving their projected life

expectancies. And Livoti knew that almost 80 percent of the insureds outlived their

projections. Not only did the government prove that Livoti knew of the deficit, but

it also proved that Livoti was warned the scheme was unlawful. Sufficient

evidence established that Livoti knew of the fraudulent scheme.

      Sufficient evidence also established that Livoti intended to defraud

investors. Although Livoti portrayed himself as a neutral trustee, he

“courted . . . investors with assurances that [Mutual Benefits] was financially

sound and profitable.” Edwards, 526 F.3d at 756 (internal quotation marks



                                          13
             Case: 14-11699     Date Filed: 10/04/2018    Page: 14 of 30


omitted). Livoti spoke at Mutual Benefits sales seminars and participated in the

promotional tours. Livoti even appeared in a Mutual Benefits marketing video.

      Despite his fiduciary duties as a trustee, Livoti continued to mislead

investors. Livoti contends that he made no misrepresentations to investors, but the

evidence proved otherwise. Livoti assured investors that Mutual Benefits could pay

the premiums. And as proof, Livoti showed bank statements to the investors. But

those bank statements were misleading because Mutual Benefits was in fact

running a deficit because of the large amount of premiums due.

      The government was not required to prove Livoti knew every aspect of the

fraudulent scheme at Mutual Benefits. So long as Livoti knew at least one aspect of

the scheme was fraudulent, the jury could reasonably infer that Livoti “knew other

aspects of the scheme were similarly fraudulent.” Silvestri, 409 F.3d at 1329. The

government satisfied its burden.

      The government proved that Livoti knew that the gift assignments to

investors as his “friends” were fraudulent. Livoti “personally played a significant

role,” id. at 1331, in the gift assignments. Indeed, he was the linchpin of that aspect

of the fraudulent scheme.

      When Mutual Benefits bought a policy with a no-value restriction, that

policy was put in Livoti’s individual name, “Anthony M. Livoti, Jr.,” as a gift

assignment to deceive the insurance company. In fact, Mutual Benefits bought that



                                          14
             Case: 14-11699     Date Filed: 10/04/2018    Page: 15 of 30


policy to sell to investors as a viatical. Mutual Benefits did not use Livoti’s name

while keeping him in the dark. Livoti signed documents either in his individual

name as “Anthony M. Livoti, Jr.,” or in his corporate status as “Anthony M. Livoti,

Jr., P.A.” Livoti knew the difference between those two signatures. For example,

Livoti identified errors when documents incorrectly listed “P.A.”

      When Livoti signed a letter in his individual name, he represented to the

insurance company that he had received that policy as a gift, and he would then

designate Mutual Benefits investors as his beneficiaries labeled as his “friends.”

Livoti contends that the “nominal use of the term ‘friend’ in the formal assignment

of some policies to the care of Livoti is not foreign to the role of lawyer.’”

Someone might call a lawyer his friend, but Livoti was certainly not a friend to the

thousands of investors to whom he assigned the policies as a “gift.”

      Livoti knew the gift assignments were a lie. The gift assignments carried

substantial risks for investors because an insurance company could void a policy if

it discovered a fraudulent gift assignment. Yet Livoti never disclosed these risks to

investors.

      The jury could also infer that Livoti knew the gift assignments were

fraudulent from the elaborate measures taken to conceal them. Mutual Benefits

used a special phone line—the “Livoti line”—to deceive insurance companies.

When the Livoti line rang, Mutual Benefits employees answered as if the insurance



                                          15
             Case: 14-11699     Date Filed: 10/04/2018    Page: 16 of 30


company had reached Livoti’s law firm. Livoti argues that he thought the Livoti

line was only for administrative purposes. But the government presented evidence

that proves he understood the nature of the Livoti line. And Livoti used special

letterhead that listed the Livoti line as his phone number. “Plainly, the jury was

free to choose among reasonable interpretations of the testimony,” Silvestri, 409

F.3d at 1330, and it was reasonable for the jury to infer that Livoti both knew of

the fraudulent scheme and intended to defraud investors.

      Finally, Livoti argues that the government’s evidence “was inconsistent with

financial realities” because Livoti was not paid “outrageous sums of money” like

others involved in the fraudulent scheme. To be sure, others made $15 million each

from the scheme, while Livoti made only $980,000. But the jury could still find

that Livoti made that substantial amount of money by intentionally defrauding

innocent investors and insurance companies. And the evidence need not “be

inconsistent with every reasonable hypothesis except that of guilt in order to be

sufficient.” Id. at 1328. The “financial realities” may be consistent with Livoti’s

innocence, but we cannot second-guess another reasonable interpretation of the

evidence—that he was guilty.

B. The District Court Did Not Plainly Err when It Permitted Testimony About the
                     Civil Proceeding Against Mutual Benefits.

      The government called Johnson, a Commission attorney, to testify about

Livoti’s deposition in the civil proceeding against Mutual Benefits and some of its

                                          16
              Case: 14-11699     Date Filed: 10/04/2018     Page: 17 of 30


employees. She also testified that the Commission obtained a preliminary and later

a permanent injunction against Mutual Benefits to stop the fraudulent scheme.

Johnson explained that a receiver took over Mutual Benefits and reviewed Livoti’s

handling of the premium accounts.

      Livoti contends that Johnson’s testimony violated the Federal Rules of

Evidence and his rights under the Fifth and Sixth Amendments. But he failed to

raise any objections to Johnson’s testimony at trial, so we review for plain error.

Fed. R. Crim. P. 52(b); Puckett v. United States, 556 U.S. 129, 135 (2009). “To

find plain error, there must be: (1) error, (2) that is plain, and (3) that has affected

the defendant's substantial rights.” United States v. Hesser, 800 F.3d 1310, 1324

(11th Cir. 2015) (quoting United States v. Khan, 794 F.3d 1288, 1300 (11th Cir.

2015)).

      Livoti argues that Johnson’s testimony violated the Federal Rules of

Evidence because it was inadmissible hearsay, irrelevant, and unduly prejudicial,

but we reject these arguments because the district court committed no error.

Although factual findings and orders from prior proceedings are hearsay, see

United States v. Jones, 29 F.3d 1549, 1554 (11th Cir. 1994), the government did

not introduce the preliminary or permanent injunctions from the civil proceeding.

Instead, the government elicited testimony about those injunctions from Johnson

based on her personal knowledge. Johnson’s testimony was not hearsay because



                                           17
             Case: 14-11699     Date Filed: 10/04/2018   Page: 18 of 30


she made the statements “while testifying at the current trial.” Fed. R. Evid. 801(c).

The testimony about the civil proceeding against Mutual Benefits was also relevant

to Livoti’s guilt. Evidence is relevant if “it has any tendency to make a fact more or

less probable than it would be without the evidence” and that “fact is of

consequence in determining the action.” Fed. R. Evid. 401. Johnson’s testimony

about a fraudulent scheme at Mutual Benefits has a tendency to make the fact that

Livoti conspired and participated in a fraudulent scheme more probable than it

would be without that testimony. The very reason for Livoti’s trial was to

determine whether Livoti was part of that scheme. And the testimony about the

receiver’s review of how Livoti handled the accounts was also relevant because it

was part of the story of Livoti’s role in the scheme.

      We cannot say that the district court committed any error, plain or otherwise,

when it did not exclude Johnson’s testimony under Federal Rule of Evidence 403.

A district court may exclude relevant evidence when “its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403.

Rule 403 “involves [a] balancing” of the evidence. U.S. Steel, LLC, v. Tieco, Inc.,

261 F.3d 1275, 1287 (11th Cir. 2001). And our review “look[s] at the evidence in a

light most favorable to its admission, maximizing its probative value and

minimizing its undue prejudicial impact.” United States v. Jernagin, 341 F.3d

1273, 1284 (11th Cir. 2003) (citation and internal quotation marks omitted). To be



                                          18
             Case: 14-11699     Date Filed: 10/04/2018    Page: 19 of 30


sure, we have held that “[j]udicial findings of fact,” like Johnson’s testimony about

the findings in the civil proceeding, “present a rare case where, by virtue of their

having been made by a judge, . . . would likely be given undue weight by the jury,

thus creating a serious danger of unfair prejudice.” U.S. Steel, 261 F.3d at 1287.

But in the light of Livoti’s defense strategy, we are not convinced that the district

court struck the wrong balance.

      As early as his opening statement, Livoti’s counsel encouraged the jury to

find that, although others at Mutual Benefits had pleaded guilty, Livoti was not

part of their fraudulent scheme. The jury “heard from the government what the

[fraudulent] business of Mutual Benefits was,” but Livoti “d[id]n’t challenge that.”

Throughout the trial, Livoti stuck with this strategy and routinely relied on the civil

proceeding to prove that Livoti was not part of that scheme. For example, Livoti’s

counsel asked Johnson if she “would agree that if [she] had reason to believe Mr.

Livoti was looting the company he would have been named as a defendant in the

[civil proceeding].” Livoti’s counsel also elicited testimony from Johnson about

Livoti’s cooperation with the receiver, the contents of the receiver’s report, and

other depositions taken during the civil proceeding. The danger of unfair prejudice

from Johnson’s testimony was not substantially outweighed by its probative value,

particularly because Livoti too relied on the probative value of this testimony.




                                          19
             Case: 14-11699     Date Filed: 10/04/2018   Page: 20 of 30


      Next, Livoti argues that Johnson’s testimony compromised his Fifth

Amendment right to remain silent and his Sixth Amendment right to a jury trial. To

support these arguments, Livoti restates why the testimony about the civil

proceeding was prejudicial, but again no error occurred. Even without Johnson’s

testimony, it was no secret to the jury that others at Mutual Benefits pleaded guilty

to the fraudulent scheme because Livoti proclaimed their guilt from the outset.

Johnson’s testimony caused no deprivation of Livoti’s rights under the Fifth and

Sixth Amendments.

      After the jury heard that others at Mutual Benefits pleaded guilty for a

fraudulent scheme, Livoti now asks, “What more was left for the jury to decide?”

That answer is clear: What the jury had left to decide was whether Livoti

participated in that fraudulent scheme. And when the jury made that decision, it

could consider Johnson’s testimony about the earlier civil proceeding. The district

court committed no error, plain or otherwise, when it permitted Johnson’s

testimony.

C. The District Court Did Not Plainly Err when It Permitted Testimony About the
                         Guilty Pleas of Livoti’s Cohorts.

      Livoti argues that the district court erred when it allowed the government to

use the guilty pleas of his cohorts as substantive evidence of his guilt. When the

government called Khan, McNerney, and Wiggins, the jury heard testimony about

the circumstances underlying each of their guilty pleas that included specific

                                         20
              Case: 14-11699    Date Filed: 10/04/2018    Page: 21 of 30


statements made as part of the plea. Khan’s testimony also referenced the guilty

pleas of Ziegler and Kohler, who were both later called as witnesses by Livoti.

Livoti did not preserve any objections for the specific challenge he now makes, so

we review only for plain error. United States v. Straub, 508 F.3d 1003, 1011 (11th

Cir. 2007).

      To be sure, a cohort’s guilty plea may not be used as substantive evidence of

a defendant’s guilt, United States v. King, 505 F.2d 602, 607 (5th Cir. 1974), but a

cohort’s guilty plea may be used for other purposes. “Either the [g]overnment or

the defense may elicit evidence of a [cohort’s] guilty plea or conviction to aid the

jury in assessing the [cohort’s] credibility.” United States v. DeLoach, 34 F.3d

1001, 1004 (11th Cir. 1994). To determine whether a guilty plea was used for a

proper purpose, we consider several factors. King, 505 F.2d at 607. These factors

include the presence of a jury instruction, the purpose of introducing the guilty

plea, how the guilty plea was used, whether the defendant invited the introduction

of the guilty plea, whether the defendant objected or requested an instruction, and

whether the defendant’s failure to object was a tactical consideration. Id. at 608.

      Livoti’s challenge to the use of his cohorts’ guilty pleas fails for three

reasons. First, the government did not use the cohorts’ guilty pleas as substantive

evidence of Livoti’s guilt. We have ruled that the government may disclose guilty

pleas of its witnesses to “blunt the impact of expected attacks on the witnesses’



                                          21
              Case: 14-11699    Date Filed: 10/04/2018    Page: 22 of 30


credibility.” DeLoach, 34 F.3d at 1004 (quoting United States v. Countryman, 758

F.2d 574, 577 (11th Cir. 1985)). The government anticipated that Livoti would

attack his cohorts’ credibility and introduced their guilty pleas to blunt the impact

of those attacks. And Livoti did attack his cohorts’ credibility with their guilty

pleas. For example, Livoti suggested that Wiggin’s testimony could not be trusted

because she had pleaded guilty and wanted favorable treatment from the

government.

      Even if the district court committed error when it permitted testimony about

the guilty pleas of Ziegler and Kohler, it was not plain error because Livoti’s

substantial rights were not affected. See Hesser, 800 F.3d at 1325. Although “[t]he

admission of guilty pleas or convictions of [cohorts] not subject to cross-

examination is generally considered plain error,” United States v. De La Vega, 913

F.2d 861, 866 (11th Cir. 1990), the testimony about Ziegler’s and Kohler’s guilty

pleas was not “patently improper, after considering the facts and circumstances of

this incident in its proper context,” id. at 867. Neither Ziegler nor Kohler had

testified when the government elicited testimony about their guilty pleas, so the

government could not anticipate attacks on their credibility. But “there is no

reasonable probability of a different result absent the error” because the jury

learned about their guilty pleas from Livoti’s counsel during his opening statement.




                                          22
             Case: 14-11699     Date Filed: 10/04/2018    Page: 23 of 30


Hesser, 800 F.3d at 1325. And Ziegler and Kohler were eventually called as

witnesses by Livoti, and he questioned them about their guilty pleas.

      The government never used the guilty pleas of Livoti’s cohorts as

substantive evidence of Livoti’s guilt. Nor did the government’s reference to

specific statements made as part of the guilty pleas cross the line into substantive

evidence of Livoti’s guilt. We have found no plain error when the government

“elicited testimony concerning the circumstances underlying [the witness’s] guilty

plea.” Hesser, 800 F.3d at 1328. The district court did not plainly err when it

allowed testimony on the specific statements made as part of the guilty pleas.

      Second, the jury was instructed not to use the cohorts’ guilty pleas as

substantive evidence of Livoti’s guilt. Unless aggravated circumstances exist, “a

cautionary instruction directing the jury not to consider a guilty plea as substantive

evidence of guilt will sufficiently cure any potential for prejudice to the defendant

on trial.” United States v. Carrazana, 921 F.2d 1557, 1568 (11th Cir. 1991). We

presume that the jury follows the instructions given by the district court. United

States v. Almanzar, 634 F.3d 1214, 1222 (11th Cir. 2001). And we have

“emphasized that cautionary instructions by the trial court are both essential and

effective in avoiding prejudice where the fact of a coconspirator's guilty plea is

brought out at a trial before a jury.” King, 505 F.2d at 607.




                                          23
              Case: 14-11699     Date Filed: 10/04/2018    Page: 24 of 30


      The district court instructed Livoti’s jury both contemporaneously with the

introduction of the guilty pleas and during the final charge. During Khan’s

testimony about his guilty plea, the district court instructed the jury that “a

witness’[s] plea of guilty to the same or similar or even a related crime is not

evidence of this defendant’s guilt.” And the district court instructed the jury to

consider the witness’s guilty plea “solely for the purpose of evaluating this

witness’s believability[,] . . . not [as] evidence that this defendant participated in

that.” The district court gave virtually identical instructions contemporaneously

with the testimony about Wiggin’s and McNerney’s guilty pleas. During the final

charge, the district court instructed the jury that “the fact that a witness has pleaded

guilty to an offense is not evidence of the guilty of any other person.” Because the

district court correctly instructed the jury, “[t]he law requires nothing more.”

DeLoach, 34 F.3d at 1005.

      Third, Livoti invited the testimony about the guilty pleas. A defendant who

“opened the door by first inviting the [g]overnment to introduce the evidence of

[the witness’s] plea” waives his challenge to the introduction of that plea. King,

505 F.2d at 608–09. After a defendant injects a witness’s guilty plea in a case, the

government is not required to ignore that guilty plea. See id. at 608. For example,

in DeLoach, the defendant invited the testimony about the witness’s guilty plea

when “[b]eginning with its opening statement and throughout the [g]overnment’s



                                           24
             Case: 14-11699     Date Filed: 10/04/2018    Page: 25 of 30


case, DeLoach sought to shift culpability to [the witness] and to portray him as the

real culprit.” DeLoach, 34 F.3d at 1005. We will not protect a defendant from his

“deliberate tactical decision[s].” Carrazana, 921 F.2d at 1568.

      Livoti’s defense strategy “sought to shift culpability” to his cohorts at

Mutual Benefits who had pleaded guilty by “portray[ing] [them] as the real

culprit[s].” DeLoach, 34 F.3d at 1004. From the beginning of the trial, Livoti

argued that, although others at Mutual Benefits pleaded guilty to running a

fraudulent scheme, Livoti was not part of that scheme. In his opening statement,

Livoti’s counsel listed the names of those who had pleaded guilty. And he

explained that “many of the government’s witnesses will acknowledge . . . that

they themselves have committed crimes, . . . and now here today they’re testifying

in the hopes of getting some benefit.” Livoti’s opening statement made “it almost

essential for the prosecution to bring out [the guilty pleas] on direct examination.”

King, 505 F.2d at 608.

      Throughout the trial, Livoti used the guilty pleas to imply that his cohorts

were guilty, but he was not. Livoti elicited testimony about the guilty pleas

throughout his cross-examinations of Khan and Wiggins. And it was Livoti, not the

government, who called McNerney as a witness and first elicited testimony about

his guilty plea. Livoti made “deliberate tactical decision[s],” Carrazana, 921 F.2d

at 1568, that “heavily relie[d] on the guilty pleas with ‘frequent, pointed, and direct



                                          25
             Case: 14-11699     Date Filed: 10/04/2018    Page: 26 of 30


references,’” United States v. Setser, 568 F.3d 482, 494 (5th Cir. 2009). Livoti

cannot complain now about the proper use of those guilty pleas by the government.

   D. The District Court Did Not Plainly Err Because the Government Did Not
                          Bolster Lombardi’s Testimony.

      Livoti argues that the government bolstered Lombardi’s credibility by asking

about his cooperation with the government in other proceedings against Mutual

Benefits employees. And he argues this “bolstering” invited the jury to believe

Lombardi’s testimony simply because the other juries had believed his prior

testimony. After Lombardi testified, Livoti equivocated but eventually stated, “I

guess I have an objection,” which the district court promptly overruled. We need

not decide if this objection preserved the issue for appeal because we conclude the

district court committed no error.

      It is improper for the government to bolster its witness’s testimony. United

States v. Sosa, 777 F.3d 1279, 1295 (11th Cir. 2015). Bolstering occurs when the

government “vouch[es] for that witness’s credibility.” Id. (quoting United States v.

Bernal-Benitez, 594 F.3d 1303, 1313 (11th Cir. 2010)). The government cannot

“plac[e] the prestige of the government behind the witness” nor can it “indicat[e]

that information not before the jury supports the witness’s credibility.” Id.

      But there are exceptions to this general rule. The “fair response” exception

“entitles a prosecutor to respond to arguments advanced by defense counsel in his

or her statement to the jury.” Id. at 1295 (quoting United States v. Lopez, 590 F.3d

                                          26
             Case: 14-11699     Date Filed: 10/04/2018    Page: 27 of 30


1238, 1256 (11th Cir. 2009)). For example, the government may rehabilitate its

witness when a defendant attacks that witness’s credibility. See United States v.

Cano, 289 F.3d 1354, 1366 (11th Cir. 2002). The rule against bolstering does not

prohibit the government from “commenting on a witness’s credibility, which can

be central to the government’s case.” Id. To determine whether the rule against

bolstering was violated, we do not isolate the challenged testimony, but instead, we

look at that testimony in its context. See Sosa, 777 F.3d at 1296. Put differently,

the rule against bolstering does not apply “in a vacuum.” Bernal-Benitez, 594 F.3d

at 1314.

      Livoti argues that the government bolstered Lombardi’s credibility by

repeatedly asking how his prior testimony fared in the criminal trial of Steven

Steiner and with regard to 11 or 12 other employees of Mutual Benefits. Yet during

his cross-examination of Lombardi, Livoti’s counsel asked about the results of the

other proceedings in which Lombardi had cooperated with the government. He

asked in detail about Steiner’s trial and had Lombardi agree that Steiner’s

indictment did not involve the same charges as Livoti’s trial. And Livoti suggested

that the jury should not believe Lombardi’s testimony because Lombardi had not

yet “gotten [his] payday” from the government—a reduction in his sentence that

“only the [g]overnment” could ask for.




                                          27
             Case: 14-11699     Date Filed: 10/04/2018   Page: 28 of 30


      The government was permitted a fair response, and it made a fair response.

After Lombardi testified that Steiner’s indictment did not involve the same charges

as Livoti’s trial, the government had Lombardi clarify, on redirect examination,

that his testimony against Steiner did concern the fraudulent scheme at Mutual

Benefits. And Lombardi again confirmed that Steiner and 11 or 12 others had

already been held accountable for that fraudulent scheme. And after Livoti

suggested that Lombardi was not credible because he had yet to receive his

“payday,” the government had Lombardi clarify that his prior testimony resulted in

Steiner and 11 or 12 others being held accountable for the fraudulent scheme at

Mutual Benefits. In response to Livoti’s attacks, the government was entitled to

clarify that Lombardi had already cooperated—effectively – with the investigation

of others for the fraudulent scheme at Mutual Benefits. Livoti attacked Lombardi’s

credibility, and the government made a fair response to that attack.

      Livoti’s reliance on United States v. Sorondo, 845 F.2d 945 (11th Cir. 1988),

is misplaced. In Sorondo, the government asked an investigator about his prior

testimony that led to the conviction of over 100 defendants. We held that the

district court plainly erred when it permitted this testimony because the jury “will

unavoidably be tempted to accept the opinion of previous juries rather than

exercise its own independent judgment.” Id. at 949. But in Sorondo, the

government asked the investigator about his prior testimony on direct examination,



                                         28
             Case: 14-11699     Date Filed: 10/04/2018   Page: 29 of 30


and Sorondo had not attacked the investigator’s credibility with his history of

cooperation. See id.

      In contrast, Livoti—not the government—first asked Lombardi about the

result of his cooperation with the government, and Livoti then used that

cooperation to attack Lombardi’s credibility. And unlike Sorondo, where there was

a danger the jury would merely credit the investigator’s testimony, Livoti already

introduced that danger into his trial when he told the jury that others had been held

accountable for the fraudulent scheme at Mutual Benefits in prior proceedings. In

his opening statement, Livoti’s counsel told the jury about Steiner’s guilt. The rule

against bolstering does not tie the government’s hands from responding to an

attack on its witness’s credibility. The government properly countered Livoti’s

attack on Lombardi’s credibility with a fair response.

E. The District Court Did Not Abuse Its Discretion when It Denied Livoti’s Motion
   for a New Trial Based on Juror Misconduct Without an Evidentiary Hearing.

      After Livoti’s trial, Juror J.D. discovered that he had mistakenly responded

to a jury summons meant for his father, who shared the same name and address as

Juror J.D. Livoti moved for a new trial because of juror misconduct, but the district

court denied Livoti’s motion without an evidentiary hearing. We review the denial

of a motion for a new trial for abuse of discretion. United States v. Campa, 459

F.3d 1121, 1151 (11th Cir. 2006) (en banc).




                                         29
             Case: 14-11699     Date Filed: 10/04/2018    Page: 30 of 30


      To justify an evidentiary hearing for a motion for a new trial, “the defendant

must do more than speculate.” United States v. Cuthel, 903 F.2d 1381, 1383 (11th

Cir. 1990). If a defendant alleges a new trial is warranted because of juror

misconduct, he must present “clear, strong, substantial[,] and incontrovertible

evidence that a specific, nonspeculative impropriety has occurred.” Id. (citation

and quotation marks omitted) (alteration adopted).

      Livoti argues that an evidentiary hearing was necessary to delve into Juror

J.D.’s misconduct, but we find no misconduct occurred. Livoti alleges that Juror

J.D. purposefully lied to take his father’s place on the jury, but he “do[es no] more

than speculate.” Id. Livoti has not satisfied his burden because he failed to present

“clear, strong, substantial[,] and incontrovertible evidence” of misconduct. Indeed,

Livoti failed to explain why the district court erred when it concluded that there

was no “indication that this incident was anything other than an honest mistake on

[Juror] J.D.’s part.” The district court did not abuse its discretion when it denied

Livoti’s motion for a new trial because no juror misconduct occurred.

                                III. CONCLUSION

      We AFFIRM Livoti’s convictions.




                                          30
