            Case: 16-17570   Date Filed: 05/30/2018   Page: 1 of 10


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-17570
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 9:15-cr-80149-KAM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                     versus

ALEXANDER ROBERT XAVIER,

                                                          Defendant-Appellant.

                        ________________________

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

                                (May 30, 2018)

Before ED CARNES, Chief Judge, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

     Alexander Xavier appeals his convictions for mail fraud, 18 U.S.C. § 1341,
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major fraud, id. § 1031, and making false statements to a federal agency, id.

§ 1001. He contends that the district court erred by giving a deliberate ignorance

jury instruction.

                                   I. BACKGROUND

       From 2008 to 2010 Xavier received around $400,000 in fees for signing as

surety on performance and payment bonds for government construction contracts.1

With each bond, Xavier also provided an affidavit of individual surety swearing

under oath and penalty of prosecution that the assets or funds existed and that they

were committed solely in support of the bond. Four contracts, one with the

Department of Labor and three with the Department of the Army, are at issue.

                              A. Department of Labor Bonds

       In 2008 Xavier signed as surety on performance and payment bonds for a

construction contract between Angel Menendez Environmental Services and the

Department of Labor. Each bond was worth the full contract amount of

$5,118,295, and Angel Menendez paid a four percent premium of $204,731.80 on

both. In his Affidavit of Individual Surety Xavier pledged “$10,236,950 in cash

and/or cash equivalents evidenced by attached irrevocable trust receipt issued by


       1
         Federal law requires government contractors to obtain surety bonds for contracts over
$100,000. 40 U.S.C. § 3131(b). Under a performance bond, a surety agrees to pay for another
contractor to complete the work if the original contractor fails to perform, and under a payment
bond, a surety agrees to pay the subcontractors if the contractor fails to pay them. See id. In
exchange for insuring the project, the surety collects a fee.

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Guardian One Capital Trust” and swore that “[s]uch assets are held [in an account]

at Bank of America” located in Sacramento, California.

      Xavier neither deposited nor held in escrow the assets he had pledged. The

holder of the Bank of America account, David H. Fredrickson, testified that he had

signed an agreement with Xavier to open an escrow account, but the account was

never funded, and he had never held $10,236,950 in support of bonds for Angel

Menendez or the Department of Labor. The Department of Labor later cancelled

the construction contract with Angel Menendez, and the contractor sought a refund

on the $409,463.60 in premiums paid to Xavier. Xavier denied the request, stating

that he would not issue a refund because the trust had incurred expenses

transferring the assets to the Sacramento account.

                        B. Department of the Army Bonds

      That same year Xavier also signed as individual surety on performance and

payment bonds for a construction contract between Better Built Construction

Services, Inc. and the Army. Each bond was initially worth $1,000,000. In the

Affidavit of Individual Surety Xavier again swore that he had sufficient assets to

support the bonds, attached an irrevocable trust receipt issued by Guardian One

Capital Trust, and pledged assets held at the Sacramento Bank of America. Xavier

also stated in the affidavit that he had been employed at Guardian One Capital

Corporation for five years. Frederickson again testified that he had never held


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assets in a trust account for either Better Built or the Army.

      In 2009 the Army continued the contract with Better Built. To cover the

increase in work, Better Built sought an increase of $2,832,174 on the performance

and payment bonds, and Xavier again signed as individual surety. In the Affidavit

of Individual Surety, Xavier swore that there were sufficient assets to support the

bonds, attached an irrevocable trust receipt issued by 1st Capital Lending Trust,

and pledged assets held at Capital Bank & Trust in Lithonia, Georgia. There was

no Capital Bank & Trust in Lithonia, Georgia. Xavier also stated in the affidavit

that he had been employed for the last five years at 1st Capital Lending Trust, a

different employer than the one he previously listed.

      In 2010 the Army continued the contract with Better Built for another year.

To cover the increase in work, Better Built sought supplemental performance and

payment bonds totaling $231,594.61. Xavier again signed as individual surety,

swore that he had sufficient assets to support the bonds, attached an irrevocable

trust receipt issued by 1st Capital Lending Trust, and pledged assets held at

Regions Bank in Boca Raton, Florida. This time Xavier identified his employer as

Quantum Partners, Inc. Xavier’s employee, Kelly Spillman, testified that Quantum

Partners never had the amount of money that was being pledged by Xavier in the

bonds. And the account holder, William H. Batallas, testified that he had never

held assets for the benefit of the Army, and his bank records showed that there


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were no accounts in which $231,594.61 had been deposited. Batallas also testified

that Xavier had not discussed the assets with him even though Batallas worked for

Quantum Partners and had an office next to Xavier’s.

                               C. Xavier’s Testimony

      Xavier was the sole witness in his defense. He testified that others had input

the information onto the forms, that he did not know at the time that the statements

in the bond documents were false, and that he had merely signed them. Xavier

claimed that when he worked at Guardian One he believed the bonds were backed

by assets held by a man named Mel DeRutledge and DeRutledge’s business

partner because DeRutledge had a multimillion dollar home. As for the

supplemental bonds for Better Built, he testified that Joe, Linda, and Brian

Garrahan at Quantum Research had shown him an account statement for their

business, which had between $20 and $30 million in assets. Based on that balance,

Xavier believed that the assets existed to support the bonds. He also testified that

he believed the government would verify the information contained within the

bonds.

                                D. Jury Instructions

      After the close of evidence, the court asked for the parties’ opinions on the

proposed jury instructions, which included an instruction on deliberate ignorance.

Xavier objected to the deliberate ignorance instruction, arguing that the


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government provided no evidence that he avoided knowing that the statements in

the documents were false and that giving the instruction would allow the jury to

convict on a less-stringent theory of negligence. The court overruled the objection

and asked whether Xavier objected to the instruction’s wording. Xavier responded

that he did not, and the court gave this instruction to the jury:

       If a defendant’s knowledge of a fact is an essential part of a crime, it’s
       enough that the defendant was aware of a high probability that the fact
       existed, unless the defendant actually believed the fact did not exist.
       Deliberate avoidance of positive knowledge, which is the equivalent
       of knowledge, occurs, for example, if a defendant believes a statement
       is false but deliberately avoids learning that it is false so he or she can
       deny knowledge later.

       So you may find that defendant knew a statement was false if you
       determine beyond a reasonable doubt that the defendant actually knew
       the statement was false or had every reason to know but deliberately
       closed his or her eyes. But I must emphasize that negligence,
       carelessness or foolishness is not enough to prove that the defendant
       knew the statement was false.2

       After deliberation, the jury found Xavier guilty on all counts. This is his

appeal.

                                     II. DISCUSSION

       We review de novo the legal correctness of jury instructions, but defer to the

district court on questions of phrasing absent an abuse of discretion. United States

v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We will reverse a conviction


       2
        Except for alterations to the example in the first paragraph, that language tracks the
wording of special instruction 8 of this circuit’s Pattern Jury Instructions.

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based on a jury instruction error only if we are “left with a substantial and

ineradicable doubt as to whether the jury was properly guided in its deliberations.”

Roberts & Schaefer Co. v. Hardaway Co., 152 F.3d 1283, 1295 (11th Cir. 1998).

      Xavier contends for the first time on appeal that the wording of the

instruction was erroneous and that it allowed the jury to convict him on a theory of

reckless indifference. Jury instructions that are challenged for the first time on

appeal are reviewed for plain error. United States v. Starke, 62 F.3d 1374, 1380

(11th Cir. 1995). We may reverse a conviction under plain-error review if we find

that the district court made: (1) an error (2) that is plain and (3) that has affected

the defendant’s substantial rights; and (4) that seriously affects the fairness,

integrity, or public reputation of judicial proceedings. United States v. Madden,

733 F.3d 1314, 1322 (11th Cir. 2013).

      A defendant acts with deliberate ignorance when he is “aware of a high

probability of the existence of the fact in question and purposely contrive[s] to

avoid learning all of the facts.” United States v. Rivera, 944 F.2d 1563, 1571 (11th

Cir. 1991). The district court’s instruction stated that to find deliberate ignorance,

the jury had to find “beyond a reasonable doubt” that Xavier “had every reason to

know” that the statements in the bond documents were false and that Xavier

“deliberately closed his [ ] eyes” to that fact. That instruction was not a “plainly

incorrect statement of the law.” United States v. Prather, 205 F.3d 1265, 1271


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(11th Cir. 2000).

      Xavier argues that the instruction was incorrect because under it, the jury

was not required to find that Xavier subjectively believed the statements in the

bond documents were false. But the jurors did not have to find that Xavier

subjectively believed that the claims were false to conclude that he acted with

deliberate ignorance. Instead they needed to find only that Xavier “subjectively

believe[d] that there [wa]s a high probability” that the claims were false. Global-

Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769, 131 S. Ct. 2060, 2070

(2011); see also Rivera, 944 F.2d at 1571 (“aware of a high probability”). The

instruction’s language — “had every reason to know” — includes that

requirement.

      Xavier also argues that the language of the instruction was insufficient

because it did not require the jury to find that Xavier took “active steps” to avoid

learning whether the statements in the bond documents were true, which allowed

the jury to convict on a finding that Xavier was reckless. He relies on the Supreme

Court’s opinion in Global-Tech, which states that the deliberate ignorance test is

satisfied when a defendant takes “deliberate actions to avoid learning of [a] fact.”

563 U.S. at 769, 131 S. Ct. at 2070. But Global-Tech does not require the magic

words “active steps” in a jury instruction. The district court’s instruction required

the jury to find beyond a reasonable doubt that Xavier “deliberately closed his [ ]


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eyes.” It explained that a defendant acts with deliberate ignorance when he

“deliberately avoids learning that [a statement] is false.”3 And it emphasized that

“negligence, carelessness, or foolishness” is not enough for deliberate ignorance,

further ensuring that the jury did not convict on a less-stringent standard. The

instruction was not a plainly incorrect statement of the law. See Stone, 9 F.3d at

940 (“consciously tried to avoid actual knowledge”); Rivera, 944 F.2d at 1571

(“purposefully contrive[s] to avoid learning”).

       Xavier next contends that even if the wording of the deliberate ignorance

instruction was not plainly incorrect, the district court erred by giving the

instruction because it was not justified by the evidence. We need not decide that

issue. Any error in giving the deliberate indifference instruction was harmless

because “the jury could have convicted on an alternative, sufficiently supported

theory of actual knowledge.” See United States v. Kennard, 472 F.3d 851, 858

(11th Cir. 2006); Steed, 548 F.3d at 977. 4


       3
         Xavier argues that we should not look to the entire instruction, and instead should focus
only on one sentence. But in determining the correctness of a jury charge, we do not look to one
portion alone but instead determine whether “the charge as a whole is a correct statement of the
law.” United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994); see also United States
v. Isnadin, 742 F.3d 1278, 1296 (11th Cir. 2014) (“District courts enjoy broad discretion in
formulating jury instructions so long as the charge as a whole accurately reflects the law in the
context of a case’s facts.”).
       4
          Xavier argues that the “sufficiently supported” standard of harmless error should not
apply because in Kennard the deliberate ignorance instruction was a correct statement of the law
and here the instruction was not. See Stone, 9 F.3d at 938–39 (“When, therefore, jurors have
been left the option of relying upon a legally inadequate theory, there is no reason to think that
their own intelligence and expertise will save them from that error. Quite the opposite is true,
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       The government showed that Xavier made around $400,000 in a span of a

few years by signing his name to pledge millions of dollars in assets that did not

exist. He swore that those nonexistent assets were held at banks which had no

record of them or at banks which did not exist. And Xavier admitted that certain

statements in the bond documents were false, but testified that he did not know

they were false when he swore to them. See United States v. Brown, 53 F.3d 312,

314 (11th Cir. 1995) (holding that when a defendant testifies in his own defense,

the fact-finder may disbelieve his testimony, which may be considered, along with

other evidence, as substantive evidence of his guilt). Because the evidence also

supports a finding of actual knowledge, the purported error in the district court’s

instruction was harmless.

       AFFIRMED.




however, when they have been left the option of relying upon a factually inadequate
theory . . . .”). But as we have explained, the district court did not err in its deliberate ignorance
instruction, and it required that the jury’s finding of deliberate ignorance be “beyond a
reasonable doubt.” See id. at 935 (“[A]ny error in giving [a deliberate ignorance] charge in the
absence of sufficient evidence is harmless when the instruction itself requires, as a precondition
to its application, proof beyond a reasonable doubt of deliberate ignorance.”). If, as Xavier
contends, the government did not introduce sufficient evidence of deliberate ignorance then we
presume that the jury did not convict on that ground. Id. at 938. That leaves only the alternative
ground of actual knowledge and the issue of whether there was sufficient evidence to support a
conviction on that ground.

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