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                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-13431
                               ________________________

                      D.C. Docket No. 3:10-cr-00264-TJC-JBT-10



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

CLIFFORD WILLSON,

                                                                       Defendant-Appellant.

                               ________________________

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

                                    (December 31, 2013)

Before MARTIN and HILL, Circuit Judges, and HUCK, * District Judge.

PER CURIAM:

       Clifford Willson appeals his conviction for one count of conspiracy to


*
  Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
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commit mail and wire fraud, in violation of 18 U.S.C. § 371. He argues that the

government failed to present sufficient evidence at trial to support his conviction.

Alternatively, Clifford argues that the evidence at trial did not show that he

participated in the single overarching conspiracy charged in the indictment.1

Instead, Clifford suggests that he was a member of a smaller and more limited

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

                                               I.

       On November 3, 2010, a grand jury sitting in the Middle District of Florida

returned an indictment charging Clifford and fifteen others with conspiring to

commit mail and wire fraud, in violation of 18 U.S.C. § 371. Fourteen of the

sixteen defendants pleaded guilty, including Gregory W. Willson, who was the

mastermind of the conspiracy and Clifford’s son. Clifford and his grandson,

Gregory M. Willson, proceeded to a joint jury trial on February 6, 2012.2

       The evidence at trial showed that Gregory W. Willson operated a branch of

Access E Mortgage (“Access E”), a firm which helped clients apply for loans so

they could purchase a home or refinance their mortgage. Around late 2005,

Gregory W. Willson and his co-workers at Access E devised a plan to help

homeowners who had been served with a notice of foreclosure. Access E would

1
  We refer to this Appellant as Clifford in order to distinguish him from his son and grandson,
both of whom are discussed here and are also named Willson.
2
  At the close of the government’s case, the district court granted Gregory M. Willson’s motion
for a judgment of acquittal.
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offer to find a “straw buyer” who would take out a loan and purchase the property

so that the homeowner would not lose his home while improving his credit. The

idea was that the original homeowner would be able to buy the property back 18–

24 months later, after his credit had sufficiently improved.

      On its face, the plan seemed like a win-win proposition for all involved. The

homeowners would be able to avoid foreclosure and continue living in their homes

while rebuilding their credit. Access E benefited by collecting fees from the loan

disbursements, using the rest of the disbursements to make mortgage payments.

Finally, the buyers received an “investor fee” of three percent of the loan amount,

including any costs typically associated with closing a real estate transaction.

      In order for the scheme to work, however, Access E had to convince

mortgage companies to lend the buyers money at a favorable interest rate. To that

end, Access E submitted fraudulent loan applications and closing documents on

behalf of the buyers so that they would qualify for low interest rates. For example,

some loan applications inflated the income and assets of the buyers. Other loan

documents listed jobs and other sources of income that the buyers did not have.

Virtually every loan application claimed that the buyer was going to occupy the

property, even though it was understood that the original homeowner was not

going to move out. These fraudulent statements were all calculated to ensure that




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the mortgage companies would approve the loans with the lowest-possible interest

rates.

         Clifford, whose appeal is the only one we consider here, was recruited by his

son to serve as a buyer for two of the thirteen properties in the scheme. One

property was located at 2007 Farm Way in Middleburg, Florida (“the Farm Way

property”). The other property was located at 10584 Haverford Street in

Jacksonville, Florida (“the Haverford Street property”). Each time that Clifford

agreed to act as a buyer, employees at Access E prepared all of the necessary

paperwork. When it came time to sign the documents, Clifford did not read any of

them, simply asking where he should sign. Once the loan was processed and

approved, Clifford received a check for his investor fee.

         After the purchase of thirteen pieces of property by seven different buyers,

the FBI began to suspect that there was some fraudulent activity relating to loans

processed by Access E. During the course of the FBI’s investigation, Clifford was

interviewed by Agent J. Douglas Mathews on June 18, 2010. Critically, Clifford

confessed to knowing that the loan documents prepared on his behalf falsely

claimed that he would be living in the properties, even though he had no intention

of doing so. Clifford also admitted that these fraudulent statements were necessary

in order to obtain a favorable loan from the mortgage company. Finally, he noted




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that he had a substantial background in the real estate industry, including 13 years

as a real estate broker.

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

acquittal, arguing that there was insufficient evidence to support a conviction for

conspiracy to commit mail and wire fraud. The district court, however, reserved

its decision on the motion and submitted the case to the jury. After the jury found

him guilty, the district court denied Clifford’s motion for judgment of acquittal.

He now appeals.

                                         II.

                                         A.

      Clifford’s first argument is that the district court should have granted his

motion for a judgment of acquittal because there was insufficient evidence to

support his conviction. He specifically argues that there was no evidence at trial

that he knowingly and willfully agreed to commit any wrongful acts.

      “We review de novo a district court’s denial of judgment of acquittal on

sufficiency of evidence grounds.” United States v. Browne, 505 F.3d 1229, 1253

(11th Cir. 2007). “In reviewing a sufficiency of the evidence challenge, we

consider the evidence in the light most favorable to the Government, drawing all

reasonable inferences and credibility choices in the Government’s favor.” Id. “A

jury’s verdict cannot be overturned if any reasonable construction of the evidence


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would have allowed the jury to find the defendant guilty beyond a reasonable

doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991). “The

evidence need not be inconsistent with every reasonable hypothesis except guilt,

and the jury is free to choose between or among the reasonable conclusions to be

drawn from the evidence presented at trial.” United States v. Poole, 878 F.2d

1389, 1391 (11th Cir. 1989) (per curiam). But when the government relies on

circumstantial evidence, the conviction must be supported by reasonable

inferences, not mere speculation. United States v. Friske, 640 F.3d 1288, 1291

(11th Cir. 2011).

      In United States v. Adkinson, 158 F.3d 1147 (11th Cir. 1998), we held that

to sustain a conviction under 18 U.S.C. § 371, the government must prove: “(1) the

existence of an agreement to achieve an unlawful objective; (2) the defendants’

knowing and voluntary participation in the agreement; and (3) the commission of

an act in furtherance of the agreement.” Id. at 1153. The government need not

prove that a defendant knew every detail of the conspiracy or participated in every

stage of the conspiracy. United States v. McNair, 605 F.3d 1152, 1196 (11th Cir.

2010). However, the government must still prove beyond a reasonable doubt that

each defendant had a “deliberate, knowing, specific intent to join the conspiracy.”

United States v. Cole, 755 F.2d 748, 755 (11th Cir. 1985) (quotation marks

omitted).


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      As to the first Adkinson prong, Clifford acknowledges that there was

sufficient evidence to establish the existence of an agreement to achieve an

unlawful objective, which in this case was mail and wire fraud. Cooperating

witnesses, including the mastermind of the scheme, Gregory W. Willson, testified

that they agreed to submit fraudulent documents to mortgage lenders in order to

obtain favorable interest rates on loans. Because many of these documents were

mailed to lenders, and loan disbursements were frequently transmitted via wire

transfer, there was also sufficient evidence to show that the use of the mail and

wires was a significant part of the scheme.

      Neither does Clifford appear to dispute that the third Adkinson prong was

met in this case because the evidence certainly established that his actions

furthered the conspiracy. Clifford signed both sets of closing documents for the

Farm Way and Haverford Street properties after advising that the contents need not

be explained to him. Clifford also admitted that his loan documents contained

false information, and that he understood that the purpose of these false statements

was to obtain a mortgage loan with a favorable interest rate. As a result, a

reasonable jury could conclude that Clifford’s agreement to serve as a buyer and

his willingness to put his name on fraudulent loan documents furthered the goals of

the conspiracy.




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      Clifford seems to center his argument on the second Adkinson prong. While

he acknowledges that he agreed with his son to serve as a buyer for two properties,

Clifford argues that he did not know that the submission of false information or

false documents played any part in his son’s scheme. Based on this premise,

Clifford argues that the government’s evidence only shows that his actions were

negligent, not criminal.

      Clifford’s argument fails. There was ample evidence at trial that would

allow a jury to conclude that Clifford knowingly and voluntarily participated in the

entire conspiracy, including the fraudulent portions of the scheme. Clifford

admitted during his interview with Agent Mathews that he was aware that his loan

documents contained false statements regarding his intent to occupy the properties

that he purchased. Clifford also admitted that he understood that these false

statements were necessary in order to obtain a mortgage loan with a favorable

interest rate. Prior to the closing for the Farm Way property, Clifford agreed to

pay for the closing costs out of his own account (to be reimbursed later) so that the

lender would be under the false impression that he was paying for the closing costs

instead of Access E. Finally, the jury also heard evidence that Clifford had been

involved in the real estate business for many years, which would have added on to

the evidence that he knew that he was participating in a fraudulent scheme. Based

on this evidence, a jury could reasonably infer that Clifford knew and agreed to


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participate in the entirety of his son’s scheme, including the parts of it that

involved fraud.3

                                               B.

       Clifford alternatively argues that, even if the evidence was sufficient to

prove that he knowingly and willfully agreed to commit a wrongful act, it was not

sufficient to establish that he was guilty of the conspiracy charged in the

indictment, which involved a total of thirteen pieces of property purchased by

seven different buyers. Rather, Clifford argues that the evidence only establishes a

limited conspiracy involving the two properties that he purchased himself. He

submits that there was no evidence establishing his connection to any of the other

six buyers, nor that he knew that the other purchases involved the submission of

fraudulent information to lenders.

       Under this Court’s precedent, Clifford’s argument is properly viewed as an

allegation of variance. “A material variance between an indictment and the

government’s proof at trial occurs if the government proves multiple conspiracies
3
  Clifford suggests that his conviction must be reversed because of the possibility that his loan
documents were forged or altered before they were submitted. Clifford also emphasizes that one
of the loan documents for the Farm Way property correctly stated that the property’s intended
use was for investment. These arguments fail on their face. Again, in reviewing a challenge to
the sufficiency of the evidence, “we consider the evidence in the light most favorable to the
Government, drawing all reasonable inferences and credibility choices in the Government’s
favor.” Browne, 505 F.3d at 1253. This being the case, even though there may be some
conflicting evidence in the record, there was certainly enough evidence for a reasonable jury to
infer that Clifford knowingly and willfully agreed to participate in the conspiracy. See Poole,
878 F.2d at 1391 (“The evidence need not be inconsistent with every reasonable hypothesis
except guilt, and the jury is free to choose between or among the reasonable conclusions to be
drawn from the evidence presented at trial.”).
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under an indictment alleging only a single conspiracy.” United States v. Castro, 89

F.3d 1443, 1450 (11th Cir. 1996). “We will uphold the conviction unless the

variance (1) was material and (2) substantially prejudiced the defendant.” Id.

      “To determine whether a variance was material, we look at the evidence in

the light most favorable to the government and ask whether a reasonable trier of

fact could have determined beyond a reasonable doubt that a single conspiracy

existed.” United States v. Seher, 562 F.3d 1344, 1366 (11th Cir. 2009). Three

factors in particular are helpful in making this determination: “(1) whether a

common goal existed; (2) the nature of the underlying scheme; and (3) the overlap

of participants.” United States v. Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007)

(quotation marks omitted).

      Even when this Court finds a material variance, however, it is still

incumbent upon the defendant to demonstrate that his substantial rights were

prejudiced by the variance. United States v. Calderon, 127 F.3d 1314, 1328 (11th

Cir. 1997); United States v. Jones, 913 F.2d 1552, 1560 (11th Cir.1990) (“A

variance between allegations and proof is reversible error only when it actually

prejudices the defendant.”). To demonstrate substantial prejudice, the defendant

must show one of two things: (1) that the proof at trial differed so greatly from the

charges that he was unfairly surprised and was unable to prepare an adequate

defense; or (2) that there were so many defendants and separate conspiracies


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before the jury that there is a substantial likelihood that the jury transferred proof

of one conspiracy to a defendant involved in another. Id. at 1561.

      Even if we assume a material variance between the indictment and the

government’s proof at trial, Clifford’s argument fails because he is not able to

establish that the variance prejudiced his substantial rights. He cannot claim unfair

surprise because the alleged variance did not alter the crime charged, the requisite

elements of proof, or the appropriate defenses in any significant way. See Jones,

913 F.2d at 1562. Indeed, Clifford’s primary defense at trial was that he was

unaware that his son’s scheme involved fraud. This would have been his defense

regardless of whether the indictment charged multiple conspiracies or a single

conspiracy.

      Neither can Clifford show that there is a substantial likelihood that the jury

transferred evidence from one defendant to another. He was tried together with

only one other person, who was acquitted by the district court before the jury ever

received its instructions and began deliberating. Cf. United States v. Caporale, 806

F.2d 1487, 1501 (11th Cir. 1986) (holding that a case involving eleven defendants

and two possible conspiracies was not so complex that there was risk of significant

jury confusion). The district court also separately instructed the jury not to

consider the evidence against Clifford’s co-defendant in any way during its

deliberations. As a result, Clifford cannot show that his substantial rights were


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prejudiced by any variance between the indictment and the government’s proof at

trial.

                                           III.

         For these reasons, we affirm Clifford’s conviction.

         AFFIRMED.




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