           Case: 14-13095   Date Filed: 02/10/2017   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-13095
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:12-cr-20588-RWG-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus


ARTHUR SCHLECHT,

                                                         Defendant-Appellant.

                      ________________________

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

                            (February 10, 2017)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Arthur John Schlecht appeals his convictions for attempting and conspiring

to commit mail fraud, 18 U.S.C. § 1349, and for wire fraud, id. § 1343. Schlecht

argues that he is entitled to a new trial based on improper contact between third

parties and several jurors. Schlecht also argues that the district court should have

given his proposed jury instruction about good faith reliance on advice provided by

legal counsel. We affirm.

      The district court did not abuse its discretion when it denied Schlecht’s

motion for a new trial based on communications that his friends initiated with

jurors. Statements from the foreperson and several jurors created a colorable

showing that the jury had been exposed to extrinsic contact and that the contact

was “about the matter pending before the jury.” Remmer v. United States, 347 U.S.

227, 229 (1954). One juror described being approached by a defense witness who

attempted to start a conversation about the weather, and three other jurors

described how a “black body builder” whom they had noticed among the

spectators of the trial announced that Schlecht was a “good guy” and attempted to

“feel out” the jury’s opinion of Schlecht. These interactions called into doubt the

jurors’ impartiality and entitled Schlecht to a presumption that he had been

prejudiced by the extrinsic contact. See United States v. Siegelman, 640 F.3d 1159,

1182 (11th Cir. 2011). But the United States rebutted the presumption of prejudice

and established that the extrinsic contact was harmless. See id. Each juror stated


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that he or she ended the conversation quickly, if not immediately, and those jurors

approached by the body builder did not respond to his comments. Each juror also

stated that he or she could proceed with deliberations fairly and impartially.

Schlecht and the prosecutor composed a curative instruction, which the district

court gave, that directed the jurors to base their “decision . . . only on the evidence

presented”; “not [to] be influenced in any way by either sympathy for or prejudice

against the defendant or the government”; and to “continue to be fair and impartial

to both sides” during deliberations. Immediately following that instruction, the

jurors confirmed a second time that they did not harbor “any reservations” about

their impartiality. We presume that the jury followed that instruction, see United

States v. Lopez, 649 F.3d 1222, 1237 (11th Cir. 2011), and responded honestly to

the inquiries by the district court. Schlecht argues that the improper contact was

particularly damaging because it gave the appearance that “he was involved behind

the scenes and caused others to act on his behalf,” but after expressing similar

concerns at trial, he did not request a mistrial or contest the decision to have the

jury resume its deliberations. Schlecht also did not object to the questions that the

government wanted the district court to ask the jury, and Schlecht declined to make

any additional inquiries on the basis it “[might] well be counterproductive.” Most

notably, Schlecht consented to have the jurors determine his guilt and waited to

pursue the issue after the jury returned an unfavorable verdict. Under these


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circumstances, we cannot say that the district court abused its discretion when it

denied Schlecht’s posttrial motion.

      The district court also did not abuse its discretion when it refused to give

Schlecht’s proposed jury instruction. A “refusal to give a proffered instruction only

constitutes reversible error if: (1) the requested instruction was a correct statement

of the law, (2) its subject matter was not substantially covered by other

instructions, and (3) its subject matter dealt with an issue . . . that was so important

that failure to give it seriously impaired the defendant’s ability to defend himself.”

United States v. Dean, 487 F.3d 840, 847 (11th Cir. 2007) (internal quotation

marks and citation omitted). Schlecht was not entitled to an instruction about good

faith reliance on the advice of counsel because he failed to prove that he fully

disclosed to his attorney all material facts related to his business dealings. See

United States v. Hill, 643 F.3d 807, 851 (11th Cir. 2011). Schlecht, a broker,

solicited investors to purchase precious metals and then used the funds to purchase

“rolling spot contracts” for precious metals and to pay for personal expenses.

Schlecht’s wife testified that an attorney advised Schlecht to become a broker and

drafted documents for some of Schlecht’s businesses, but she did not attend their

meetings and admittedly did not know the actual substance of their conversations.

Her testimony fell far short of establishing that Schlecht relied on advice from his

attorney to sell precious metals on margin; to conceal from investors that they were


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purchasing margins on instead of actual precious metals; and to misappropriate his

clients’ money. See Dean, 487 F.3d at 847.

      The district court “substantially covered” in its instructions Schlecht’s

defense theory that he lacked the intent to defraud and acted in good faith with his

investors. See id. The district court instructed the jury that “[g]ood faith is a

complete defense to a charge that requires intent to defraud”; “[t]he government

must prove intent to defraud”; “[a]n honestly held opinion or . . . belief[, even if

mistaken,] cannot be fraudulent intent”; and “a mistake [in] judgment, an error in

management[,] or carelessness cannot establish fraudulent intent.” Schlecht cannot

establish that the failure to give his proposed jury instruction “seriously impaired

his ability to defend himself.” See id.

      We AFFIRM Schlecht’s convictions.




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