                Case: 12-12424      Date Filed: 05/28/2013      Page: 1 of 3




                                                                 [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 12-12424
                              ________________________

                         D.C. Docket No. 9:11-cr-80172-KLR-5


UNITED STATES OF AMERICA,

                                                                 Plaintiff - Appellee,

                                           versus

CHERYL STEPHENSON,

                                                                 Defendant - Appellant.

                              ________________________

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

                                      (May 28, 2013)

Before MARCUS and BARKETT, Circuit Judges, and CONWAY, * District Judge.

PER CURIAM:

       *
          Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle
District of Florida, sitting by designation.
                Case: 12-12424        Date Filed: 05/28/2013       Page: 2 of 3


       This appeal arises out of a telemarketing scheme to sell a septic treatment

product called “Septic Remedy,” which was the subject of an Environmental

Protection Agency (“EPA”) investigation. Cheryl Stephenson briefly worked as a

telemarketing representative for the company that sold Septic Remedy. The

government charged Stephenson with two counts of wire fraud in violation of 18

U.S.C. § 1343, alleging that she fraudulently made representations to prospective

customers to induce sales. At the close of the government’s case, Stephenson

moved for a judgment of acquittal, arguing that there was insufficient evidence to

convict her of wire fraud. The district court denied that motion, and the jury found

Stephenson guilty as charged. Stephenson filed a motion for judgment

notwithstanding the verdict or in the alternative a motion for a new trial, which the

district court also denied.1 After extensive review of the record, we reverse

Stephenson’s conviction.

       The government’s evidence to prove Stephenson’s specific intent to defraud

consisted of: (1) the testimony of co-defendants Christopher Lincoln and Mary

Moore, both of whom testified that they trained and encouraged Stephenson to use

the phrase “EPA approved” in selling the product; and (2) Stephenson’s

handwritten notes taken during on-the-job training. None of this evidence shows
       1
          At sentencing, the district court judge commented “[t]o some extent, I think that
[Stephenson] was a victim of the owners of the company.” The district court sentenced
Stephenson to time served as to each count (four days), supervised release for a period of two
years, restitution in the amount of $626.88, and a special assessment of $200.

                                                2
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that Stephenson knew that any representations she might have made were, in fact,

false. There is nothing in the testimony of Lincoln and Moore reflecting that they

told or even suggested to Stephenson that the "EPA approved" phrase was false, or

that the product was not EPA approved. With reference to Stephenson’s

handwritten notes, the evidence does not support the conclusion that the

representations in the notes taken were false, and, therefore, the notes could not

provide a basis from which a jury could infer fraudulent intent on the part of

Stephenson.

      Thus, we conclude that no reasonable jury could find that the evidence

presented at trial as to Stephenson’s guilt met the requisite standard of proof

beyond a reasonable doubt. United States v. Langford, 647 F.3d 1309, 1319 (11th

Cir. 2011).

    REVERSED and REMANDED, with instructions to the district court to
VACATE Stephenson’s final judgment of conviction.




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