          Case: 11-15879   Date Filed: 05/16/2013   Page: 1 of 7


                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 11-15879
                     ________________________
             D.C. Docket No. 1:10-cr-00370-CAP-GGB-1


UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                                 versus
GEOFFREY A. GISH,

                                              Defendant-Appellant.
                     ________________________

                           No. 11-15880
                     ________________________
             D.C. Docket No. 1:10-cr-00370-CAP-GGB-2


UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                                 versus
MYRA J. ETTENBOROUGH,

                                              Defendant-Appellant.
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                               ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                       (May 16, 2013)
Before MARTIN, HILL, and BARKSDALE,* Circuit Judges.


PER CURIAM:

       Geoffrey A. Gish and Myra J. Ettenborough appeal their convictions on

various counts of mail and wire fraud and conspiracy to commit these frauds. In

addition, Gish appeals his sentence. For the following reasons, we shall affirm

their convictions and Gish’s sentence.

                                               I.

       Between 2004 and May of 2006, the purported investment firm of Weston

Rutledge raised approximately $30 million from over 300 investors for primarily

three investment programs. 1 Geoffrey A. Gish was the head of Weston Rutledge.

Myra Ettenborough was Gish’s office and operations manager, with responsibility

for managing almost all aspects of the company’s business, employees, and

interactions with its investors. Ettenborough handled all mail, managed and



*Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting by
designation.
       1
       These firms were named Zamindari Capital, Lexington International Fund, and Oxford
Adams Fund.
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reconciled Weston Rutledge’s numerous bank accounts, handled all banking

transactions, checks and wires, and processed all payments to investors. Gish and

Ettenborough communicated to investors how the programs worked, details of the

investments’ safety and security, the investments’ performance and earnings and

other information. They also provided all other employees with the information

provided to investors.

      Ettenborough also wrote a newsletter that was distributed to investors. In

one newsletter, she described how investors’ principal would reside at a major

bank in a non-interest bearing account with a block on it, which no one could touch

during the investment period. The newsletter also purported to report investment

results. Ettenborough provided standard document packages to investors showing

substantial rates of return and created and distributed account statements to

investors showing positive monthly earnings and increasing total account balances

said to be from earnings. In March 2006, the last full month for which there were

statements, the account balances as shown on investor statements reached $34

million.

      In reality, virtually none of the representations made to investors was true.

Of the $30 million raised by Gish, approximately $12 million was returned to

investors to satisfy earnings and principal withdrawal demands. The rest went to




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Gish, Ettenborough, other third parties and various non-investment purposes. 2

Ettenborough signed most of these checks. None of the investment funds went to

any trading activity of any kind.

       Of course, the cash on hand at Weston Rutledge steadily declined over time.

Upside down from the beginning, the gap between investor statements and cash on

hand grew to almost $34 million by March 2006.

       Various investigations of Weston Rutledge took place, beginning in late

2004 when the Georgia Secretary of State securities division subpoenaed Gish and

Weston Rutledge. This investigation resulted in a cease and desist order and a civil

fine. Instead of ceasing operations, Gish moved Weston Rutledge to a new office

and resumed soliciting investors. Other investigations took place in both Arizona

and Texas.

       During this time, Gish and Ettenborough consulted a securities lawyer about

their securities investment program Zamandari. They did not tell this lawyer about

the Georgia investigation. Subsequently, the lawyer withdrew his representation of

Zamandari, informing him that his investment program was in violation of

numerous securities laws and had the “indicia” of fraud. Gish did not further



       2
          Investor funds totaling over $700,000 went to Gish’s personal account. The funds also
paid for credit cards, spas, cars and related expenses. Other funds paid Ettenborough’s salary,
Weston Rutledge’s business expenses, and investments unrelated to those sold to investors. Gish
also used approximately $167,000 to buy a house. Millions more were transferred to third
parties.
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communicate with the lawyer, nor attempt to recover the unexpended retainer paid

to him out of an account funded by investor monies.

      In March and April of 2006, the SEC instituted its own investigation of Gish

and his investment programs. On May 17, 2006, the SEC obtained a court order

shutting down Weston Rutledge and appointing a Receiver for the business and the

approximately $1 million of investor funds remaining.

      Gish and Ettenborough were indicted and convicted on various counts of

mail and wire fraud. Gish was sentenced to 240 months’ incarceration.

Ettenborough was sentenced to 84 months’ confinement.

                                         II.

      On appeal, Ettenborough argues that she was Gish’s innocent dupe in this

fraudulent investment activity. There was more than sufficient evidence, however,

from which the jury could have concluded that she was a knowing and active

participant in the scheme. The evidence was that Ettenborough knew both the

source of the funds she disbursed – she wrote the checks and sent the wires

disbursing investor monies – and that she knew that the funds were never deposited

in a blocked account and that there were no earnings, as she represented to

investors. Multiple investors testified to direct, individual communications in

which Ettenborough made knowing misrepresentations about their investments to

them. Whether Ettenborough was a knowing participant in Gish’s investment

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scheme is a preeminent jury question, and one which the jury was entitled to and

did resolve against her.

       The defendants also argue that the jury was improperly instructed on a

theory of deliberate ignorance. We find no reversible error here, since the jury was

also instructed and there was ample evidence to support a theory of their actual

knowledge. See United States v. Steed, 548 F.3d 961, 977 (11th Cir. 2008)

(harmless error to instruct jury as to deliberate ignorance if the jury was also

instructed and the evidence was sufficient to support inference of actual

knowledge).3

       Next, defendants assert that the district court erred in permitting the

testimony of three lawyers regarding their communications to Gish and

Ettenborough that the investment scheme was fraudulent and in violation of federal

and state securities law. We find no merit in this contention. Although expert

testimony as to a defendant’s state of mind at the time of the offense is barred by

Federal Rule of Evidence 704(b), the record here is clear that the challenged

testimony did not do so. The lawyers testified as to what they told Gish and

Ettenborough about the legality of their scheme. They did not testify as to what

Gish and Ettenborough thought about that advice, nor as to any other state of mind

they might have had at the time. That conclusion was left for the jury to infer.

       3
          Nor do any of the related arguments made in connection with the deliberate ignorance
instruction change our conclusion.
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Expert evidence that supports an inference as to the defendants’ intent or other

state of mind is not barred so long as it leaves that inference to the jury to draw.

See United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011). That is what

occurred here.

      Finally, we find no reversible error in defendants’ complaints that evidence

regarding the Georgia investigation was improperly admitted under Federal Rule

of Evidence 404(b). On the contrary, this is precisely the sort of evidence of prior

conduct – relevant to the ultimate issue of intent to defraud – that is admissible

under the rule. See United States v. Gold Unlimited, Inc., 177 F.3d 472, 486-87

(6th Cir. 1999).

      As to Gish’s allegation of sentencing error, we note that the sentence is a

middle-of-the-range guideline sentence and that the district court specifically

referred to and explained its consideration of the 18 U.S.C. § 3553(a) factors. We

find no reversible error in the district court’s sentence.

                                          III.

      For the foregoing reasons, the convictions and sentence imposed on Gish

and Ettenborough by the district court are due to be

      AFFIRMED.




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