             Case: 11-11840   Date Filed: 10/11/2012   Page: 1 of 10

                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 11-11840
                         ________________________

                     D.C. Docket No. 0:10-cr-60183-JIC-3,

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

EDWARD PERL,
a.k.a. Eddie Marx,

                                                        Defendant - Appellant.

                         ________________________

                               No. 11-11842
                         ________________________

                     D.C. Docket No. 0:10-cr-60183-JIC-1

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus


ANDREW LEVINSON,
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a.k.a. Andrew Kennedy,

                                                            Defendant - Appellant.

                             ________________________

                                   No. 11-11974
                             ________________________

                         D.C. Docket No. 0:10-cr-60183-JIC-4


UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,


                                         versus

ALAN PERL,
a.k.a. Alan Peters,

                                                            Defendant - Appellant.

                             ________________________

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

                                  (October 11, 2012)


Before DUBINA, Chief Judge, and PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:



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       Andrew Levinson, Alan Perl, and Edward Perl (collectively “Appellants”)

appeal their respective convictions. Alan Perl also challenges the district court’s

calculation of his sentencing guideline range. After a jury trial, Levinson was

convicted of one count of conspiracy to commit wire fraud, thirteen counts of wire

fraud, and three counts of mail fraud. Alan Perl was convicted of seven counts of

wire fraud. Edward Perl was convicted of eight counts of wire fraud.1 After

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

                                     I. BACKGROUND

       Levinson was the owner, operator, and salesman for Creative Concepts of

America Inc. (“Creative Concepts”), a Florida corporation with its principal place

of business in Fort Lauderdale. Throughout the entire business operation,

Levinson used the name “Andrew Kennedy” with everyone outside the office. The

company offered a business opportunity that included selling Red Bull energy

drink vending “packages” to customers. These packages included the machines,

Red Bull energy drinks, a warranty, and customer service. Between June 2005 and

June 2006, Creative Concepts sold more than 900 of these business opportunities

with each package costing roughly $4,000 per machine.2

       1
                Two additional defendants, Corina Guillott and Adriana Mirabal, pled guilty
before trial and testified at trial.
       2
              Packages ranged from three machines to fifty machines.

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      Creative Concepts mainly attracted individuals through its website and

through sales brochures. A prospective buyer would call a telephone number and

speak with an employee known as a “fronter.” Fronters answered questions and

made arrangements to send the potential customer additional sales material. They

were paid based on the number of machines they sold.

      After reviewing this information, customers who called back would speak

with a “closer” who would try and finalize the deal. Levinson trained and

supervised both the fronters and the closers. Often, prospective buyers were given

the names of references and were told that these were individuals who had

previously purchased from Creative Concepts. Levinson testified that,3 although he

was not directly in charge of references, he knew that the company was giving out

references and he knew who they were.

      Here is where Edward and Alan Perl become involved. Edward Perl and

Alan Perl are brothers and separately acted as references for Creative Concepts.

Each used a false name while acting as a reference: Edward Perl was “Eddie

Marx” and Alan Perl was “Alan Peters.” Seven witnesses testified at trial that they

had spoken with both Edward Perl and Alan Perl as references and had purchased




      3
            Neither Alan Perl nor Edward Perl testified at trial.

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packages from Creative Concepts.4 Three of these witnesses—Jeffrey Bullinger,

John Kendall, and Chris Bernal—took notes that were admitted into evidence

recounting their conversations with Edward Perl, Alan Perl, and Guillott (acting

under their false names). These notes indicate that each reference misrepresented

the amount of machines that they owned and the amount of Red Bull drinks that

were sold from these machines.

                                     II. DISCUSSION

       Appellants cite numerous errors they believe the district court committed.

We address each in turn.

       This Court reviews evidentiary rulings for abuse of discretion. United States

v. Brown, 415 F.3d 1257, 1265 (11th Cir. 2005). Even if an evidentiary ruling

constitutes an abuse of discretion, we will only reverse if the error was not

harmless. United States v. Hand, 184 F.3d 1322, 1329 (11th Cir. 1999). We

review findings of fact that support a sentence enhancement for clear error. United

States v. Ladson, 643 F.3d 1335, 1341 (11th Cir. 2011). Lastly, we review

challenges to the sufficiency of the evidence de novo, but resolve all reasonable

inferences in favor of the jury’s verdict. United States v. Pineiro, 389 F.3d 1359,


       4
              Seven of the counts of wire fraud for Alan and Edward Perl were related to these
seven witnesses. Edward Perl was also convicted of one count of wire fraud resulting from his
conversations with a government investigator.

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1367 (11th Cir. 2005).

       A. Exhibits 146 and 146-T

       Appellants argue that the district court erred when it excluded a tape

recording of a conversation between a government investigator and two Creative

Concepts sales employees as hearsay. Hearsay is “a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” Fed. R. Evid. 801(c). Appellants assert that the

tape recording was not hearsay because it was not being offered for the truth of the

matter asserted.

       Appellants argue that the tape was not offered to prove the truth of the

relevant matter, but rather only that it was being offered to show that the script

(which had already been introduced into evidence as Exhibit 105) was not always

used by Creative Concepts’ employees. We doubt there was a hearsay problem at

all, but even if there were, we conclude that any error was harmless. See Hand, 184

F.3d at 1329. This tape would have established only that the script was not used in

one of the very many calls Creative Concepts’ employees received and made. And

there was overwhelming evidence that the script was routinely used,5 that Levinson



       5
              Mirabal and Scott Smith, a government contractor who applied for a position at
Creative Concepts, both testified that Exhibit 105 was provided to them as a script.

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knew of that routine use, and that Edward Perl and Alan Perl themselves in fact

made representations reflected in the script. See United States v. Puentes, 50 F.3d

1567, 1578 (11th Cir. 1995) (finding district courts error in admitting evidence was

harmless in light of overwhelming evidence of defendant’s participation in drug

conspiracy).

      B. Exhibits 55, 87 and 141

      The district court admitted three exhibits containing notes that witnesses

took regarding their conversations with references under the present sense

impression exception to the hearsay rule. Levinson challenges the admissibility of

Exhibit 87, which is an email message received by witness John Kendall with

handwritten notes taken while he was talking on the phone with references.

Levinson also challenges the admissibility of Exhibit 55, which is handwritten

notes by witness Chris Bernal. Lastly, Appellants challenge the admissibility of

Exhibit 141, which is handwritten notes by witness Jeffrey Bullinger.

      As stated above, hearsay is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay is presumptively

inadmissible barring a hearsay exception. Fed. R. Evid. 802. One exception to the

hearsay rule is for a present sense impression. A present sense impression is a

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“statement describing or explaining an event or condition made while the declarant

was perceiving the event or condition, or immediately thereafter.” Fed. R. Evid.

803(1); see also United States v. Cruz, 765 F.2d 1020, 1024 n.5 (11th Cir. 1985).

Appellants argue that these writings were not sufficiently contemporaneous with

the phone calls with the references to qualify as present sense impressions.

      With respect to the notes taken by Kendall (Exhibit 87), and all but an

insignificant part of the notes taken by witness Bullinger (Exhibit 141), there was

sufficient evidence for the district court to conclude that these notes were taken

contemporaneously with the telephone conversations with the references. The

district court did not abuse its discretion by admitting them pursuant to hearsay

exception Rule 803(1).

      The same is true with respect to part of the notes taken by Bernal. The

entirety of the notes were properly admitted initially because Bernal’s testimony

was that the notes were taken contemporaneously during his conversations with the

references. However, on cross-examination, Bernal indicated that the notes on

page one of the Exhibit may have been summaries or a consolidation of the

information he obtained from his several phone calls with references. Thus, it is

possible that this portion of the notes may not have been sufficiently




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contemporaneous to qualify under the exception.6 Even assuming that, however,

we readily conclude that any error was harmless. The information on page one was

testified to by Bernal on the stand, and he was subject to cross-examination.

Additionally, such testimony probably would have been admissible under Rule

803(5)7 as another exception to the hearsay rule. Lastly, there was overwhelming

evidence admitted at trial that contained almost identical information to that

contained on page one of this Exhibit.8

       C. Exhibit 132

       Levinson challenges the admissibility of a March 2006 unsigned letter from

James “Jim” Murphy, director of non-traditional sales at Red Bull, to Levinson.

Levinson argues that admission of this letter violated the best evidence rule. We

conclude that Levinson’s challenge is without merit. Moreover, Murphy testified

at trial and was subject to cross-examination; he testified with respect to all

relevant matters in this letter.

       6
               However, three of the four notations on page two were expressly dated December
12, 2005, the same day the notations on page one of this Exhibit are dated. This is strong
evidence that the summaries on page one were at least written on the same day as the phone calls
with the references.
       7
               Federal Rule of Evidence 803(5) sets out an additional exception to the hearsay
rule for admission of past recollections recorded.
       8
               The notes and testimony of Bullinger and Kendall contained almost identical
information as to how many machines the references (including Alan Perl and Edward Perl)
claimed they owned and how many cans of Red Bull they claimed were sold per day.

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       D. Alan Perl’s Sentencing Challenge

       Finally, Alan Perl challenges his sentence. He argues that the district court

clearly erred in finding that there were fifty or more victims of his offenses, thus

resulting in a four-level enhancement of his sentence under U.S.S.G. §

2B1.1(b)(2).9 In light of the fact that every one of the victims (those seeking a

reference from Alan Perl and later buying these packages) who answered the

questionnaire suffered a loss, and in light of the fact that every victim-witness who

testified at trial and about whom we have specific information did in fact suffer a

loss, we cannot conclude that the district court was clearly erroneous in finding that

there were reasonable inferences that all of the victims who sought a reference

from Alan Perl also suffered some loss.

                                      III. CONCLUSION

For all of the foregoing reasons, we affirm.10

       AFFIRMED.




       9
                Alan Perl does not dispute that he should have at least received a two point
increase for a crime with between ten and fifty victims.
       10
             Alan Perl’s inconsistent verdict argument is wholly without merit, as are Levinson
and Edward Perl’s challenges to the sufficiency of the evidence.

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