                                                        [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                    FILED
                                                             U.S. COURT OF
                                                                APPEALS
                       Nos. 07-11305 and 07-11621          ELEVENTH CIRCUIT
                         Non-Argument Calendar                JULY 16, 2008
                       ________________________             THOMAS K. KAHN
                                                                 CLERK

                    D. C. Docket No. 05-60149-CR-JIC

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,

                                   versus


ROBERT MCKAY,
MICHAEL MCKAY,

                                                 Defendants-Appellants.

                       ________________________

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

                               (July 16, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Appellants Michael McKay and Robert McKay were indicted, along with

Phillip Ciccarelli and James Lynch,1 by a federal grand jury in the Southern District

of Florida in relation to their activities controlling and financially exploiting the

American Maritime Officers Union (“the Union”) and its member benefit plans

(“the Plans”).

                                            I.

      Following a 21-day jury trial, the defendants were convicted of various

charges stemming from their actions in conducting the affairs of the Union and the

Plans through a pattern of racketeering, which included acts of misconduct in the

following areas: (1) political campaign contributions; (2) housing leased by the

Plans; (3) funds for entertainment and expenses used by the Plans; (4) Union

elections; and (5) expense reports. Robert McKay, the secretary-treasurer of the

Union, and Michael McKay, the president of the Union, were convicted of a

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c)

(“RICO”) conspiracy, the object of which was to financially exploit the Union and

the Plans for personal gain. Following the convictions, the government sought



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        Ciccarelli pled guilty to one count of theft from an employee pension fund and was
sentenced to four years’ probation. Lynch was tried separately and found guilty of RICO
conspiracy and was sentenced to 30 months’ imprisonment. He has appealed his conviction and
sentence separately.

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forfeiture of the amount of illicit proceeds generated by the racketeering enterprise,

as well as those proceeds generated by the mail fraud and embezzlement; the

government also included the salaries paid by the Union to both Robert and

Michael in its loss calculation. The government asserted that because Robert and

Michael were convicted of the RICO conspiracy charge, they were jointly and

severally liable for the full amount of the proceeds generated from that enterprise.

      The district court sentenced Michael to 78 months’ imprisonment, three

years supervised release, $271,040.21 in restitution, and a $525.00 assessment.

The district court sentenced Robert to 15 months’ imprisonment, three years

supervised release, $271,040.21 in restitution, and a $450.00 assessment.

      The district court also issued final judgments of forfeiture against Michael in

the amount of $2,002,275.71, and Robert in the amount of $509,744.71, with

Michael and Robert jointly and severally liable for the $509,744.71. The

defendants then perfected their appeals, which we consolidated.

                                         II.

      The issues presented on appeal are:

      (1) Whether sufficient evidence supports the defendants’ RICO conspiracy

convictions for controlling and exploiting the Union and its associated Plans.




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      (2) Whether the district court abused its discretion in instructing the jury

regarding the proof the government must demonstrate to establish that the

defendants willfully joined the RICO conspiracy and in denying the defendants’

requested instruction regarding their alleged good faith reliance on the advice of

Union counsel.

      (3) Whether sufficient evidence supported the defendants’ respective mail

fraud and embezzlement convictions.

      (4) Whether the district court properly apportioned the defendants’ financial

responsibility for the RICO conspiracy in their respective forfeiture and sentencing

orders.

      (5) Whether the district court abused its discretion in denying a mistrial

regarding the government’s rebuttal comments about defense counsel’s attempt to

explain certain documentary evidence.

                                         III.

      We review claims for insufficiency of the evidence in the light most

favorable to the government, and a defendant’s conviction will not be overturned if

a reasonable jury could have found the evidence established guilt beyond a

reasonable doubt. United States v. Brantley, 68 F.3d 1283, 1287 (11th Cir. 1995).




                                          4
      A district court’s refusal to give a jury instruction requested by the defense is

reviewed for abuse of discretion only. United States v. Morales, 978 F.2d 650, 652

(11th Cir. 1992).

      This court reviews de novo the district court’s legal conclusions regarding

forfeiture and sentencing and the district court’s factual findings for clear error.

United States v. Browne, 505 F.3d 1229, 1278 (11th Cir. 2007), cert. denied, ___ S.

Ct. ___, 76 U.S.L.W. 3512 (U.S. Jun. 23, 2008); United States v. Williams, 340

F.3d 1231, 1234-35 (11th Cir. 2003).

      “The decision to grant a mistrial lies within the sound discretion of the

[district court] since [it] is in the best position to evaluate the prejudicial effect of a

statement or evidence on the jury.” United States v. Satterfield, 743 F.2d 827, 848

(11th Cir. 1984) (quoted in United States v. Mendez, 117 F.3d 480, 484 (11th Cir.

1997)).

                                            IV.

      After reviewing the record, and reading the parties’ briefs, we conclude that

there is no merit to any of the arguments defendants make in this appeal, and we

therefore affirm their convictions, the district court’s forfeiture order, and

Michael’s sentence.




                                             5
      The record demonstrates that at trial the government presented direct

testimony, recorded conversations, and documentary evidence that more than

supported the jury’s verdict finding Michael and Robert guilty of the RICO

conspiracy and their respective challenges to the substantive counts of conviction.

As officers and leaders of the Union, Michael and Robert used their positions to

exploit the Union and the Plans for their own financial and political benefits with a

detriment to the Union and the Plans.

      We also conclude from the record that the district court did not abuse its

discretion in giving the pattern RICO jury instructions properly setting forth the

proof required to establish a defendant’s willing agreement to join the conspiracy.

We also conclude that the district court acted within its discretion in denying a

requested instruction regarding the defendants’ alleged reliance on the advice of

counsel. The instruction was not supported by the evidence and was already

adequately covered by the good faith jury instructions.

      Robert challenges the forfeiture order holding him jointly and severally

liable for funds misappropriated by Michael, arguing that he can only be held liable

for funds related to his own embezzlement count of conviction and not RICO

predicate acts for which he claims he was not responsible. Michael challenges the




                                          6
inclusion of his Union salary in his forfeiture order and in the fraud loss amounts

used to calculate his sentence.

      Robert also challenges his legal liability for Michael’s manipulation of the

Union and Plans expenditures, which Robert distinguishes from his admitted

liability for the amounts he was found to have personally embezzled from the

Union.

      We conclude from the record that Robert was properly held jointly and

severally liable for Michael’s improper personal expense charges in his forfeiture

order. Robert was convicted of the RICO conspiracy, and one of the objects of the

conspiracy was financial exploitation of the Union and the Plans.

      We also conclude that Michael’s forfeiture order and guidelines sentencing

calculations properly included the amount of his Union salary. Unlike restitution

orders, forfeiture and RICO sentencing determinations are intended to take into

account the defendant’s ill-gotten gains, and not to examine the net cost and

benefits to the victim.

      Finally, we conclude from the record that the district court did not abuse its

discretion in denying a mistrial regarding the government’s rebuttal comments.

Specifically, Robert argues that the district court abused its discretion in not

granting a mistrial on the basis of rebuttal arguments by the government reportedly

                                           7
shifting the burden of proof or commenting on Robert’s failure to testify. The

district court denied Robert’s motion for a mistrial, finding that “it was a fair

comment on the argument of opposing counsel.” (DE: 340:164-65).

       We do not read the prosecutor’s isolated remark as intending to comment on

Robert’s failure to testify or to shift the burden of proof. The prosecutor fairly

commented on defense counsel’s attempt to explain the evidence concerning

Robert’s restaurant expense vouchers. Moreover, the district court instructed the

jury regarding the government’s burden of proof, and the government

acknowledged its burden. Viewed in context, we conclude that the government’s

comment on defense counsel’s failure to explain the restaurant receipts did not

confuse the jury regarding the burden of proof and cannot be read as intending to

comment on Robert’s failure to testify. See United States v. Hernandez, 145 F.3d

1433, 1438-39 (11th Cir. 1998) (noting that reversal of conviction is required if the

prosecutor’s comments were improper and prejudiced the defendant’s substantive

rights).

       For the above-stated reasons, we affirm the defendants’ convictions, the

district court’s order of forfeiture and Michael’s sentence.

       AFFIRMED.




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