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                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11999
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:13-cr-60109-JIC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

FRANK EXCEL MARLEY, III,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 9, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Frank Excel Marley, III, appeals his jury convictions and 57-month total

prison sentence for 1 count of conspiracy to commit mail and wire fraud, in

violation of 18 U.S.C. §§ 1341, 1343, and 1349, and 6 counts of theft from an

Indian tribe, in violation of 18 U.S.C. §§ 1163 and 2. On appeal, he argues:

(1) that the evidence was insufficient to prove that he acted knowingly and

willfully; (2) that the district court’s exclusion, as hearsay, of a memorandum he

had written denied him the right to present an effective defense and rendered his

trial unfair; (3) that the district court’s loss calculation was erroneous; (4) that the

evidence did not support an aggravated-role enhancement under U.S.S.G.

§ 3B1.1(c); (5) that the evidence did not support an abuse-of-trust enhancement

under § 3B1.3; and (6) that the court’s restitution order was erroneous. We address

each issue in turn.

                          (1)    Sufficiency of the evidence

      Marley, an attorney who was retained by the Seminole Tribe of Florida

(“the Tribe”), argues that the government failed to prove that he knew the invoices

from his law firm, The Marley Firm, P.A. (“the Marley Firm”), contained

fraudulent charges. He asserts that the only evidence of his intent came from his

codefendant, Maria Hassun, whose testimony was questionable in light of her plea

agreement with the government. He also argues that the government failed to




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prove that he had not done sufficient work to justify the amount of money the

Tribe paid him or that he intended to steal from the Tribe.

      We review the denial of a defendant’s motion for judgment of acquittal

de novo. United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir. 1994). The

Due Process Clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime of which

he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d

368 (1970). However, to uphold the denial of a motion for a judgment of acquittal,

we need only determine that a reasonable fact-finder could conclude that the

evidence established the defendant’s guilt beyond a reasonable doubt. United

States v. Hansen, 262 F.3d 1217, 1236 (11th Cir. 2001). Whether the evidence

was direct or circumstantial, we will accept all reasonable inferences that tend to

support the government’s case. See United States v. Williams, 390 F.3d 1319,

1324 (11th Cir. 2004).

      A jury is free to choose among reasonable constructions of the evidence.

United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983). As such, “it is not

necessary that the evidence exclude every reasonable hypothesis of innocence or

be wholly inconsistent with every conclusion except that of guilt, provided a

reasonable trier of fact could find that the evidence establishes guilt beyond a

reasonable doubt.” Id. (quotation and alteration omitted). We are bound by the


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jury’s credibility determinations and by its rejection of the inferences raised by the

defendant. United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). The fact

that a witness has consistently lied in the past, engaged in various criminal

activities, or thought his testimony would benefit him does not make his testimony

incredible. United States v. Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005). To

be considered incredible as a matter of law, testimony “must be unbelievable on its

face, i.e., testimony as to facts that the witness could not have possibly observed or

events that could not have occurred under the laws of nature.” Id. (quotation and

alteration omitted).

      To commit mail fraud, in violation of 18 U.S.C. § 1341, or wire fraud in

violation of 18 U.S.C. § 1343, the defendant must (1) intentionally participate in a

scheme or artifice to defraud another of money or property, and (2) use or cause

the use of the mails or wires for the purpose of executing the scheme or artifice.

United States v. Ward, 486 F.3d 1212, 1221-22 (11th Cir. 2007). To commit a

conspiracy offense under 18 U.S.C. § 1349, a defendant must know of and

willfully join in the unlawful scheme to defraud. United States v. Maxwell,

579 F.3d 1282, 1299 (11th Cir. 2009).

      Under 18 U.S.C. § 1163, a defendant commits embezzlement or theft from

an Indian tribe when he “embezzles, steals, knowingly converts to his use or the

use of another, willfully misapplies, or willfully permits to be misapplied, any of


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the moneys, funds, credits, goods, assets, or other property belonging to any Indian

tribal organization or intrusted to the custody or care of any officer, employee, or

agent of an Indian tribal organization; or [] knowing any such moneys, funds,

credits, goods, assets, or other property to have been so embezzled, stolen,

converted, misapplied or permitted to be misapplied, receives, conceals, or retains

the same with intent to convert it to his use or the use of another.” 18 U.S.C.

§ 1163.

      As an initial matter, Marley contests only the government’s evidence of

(i) his knowledge of and intent to join a conspiracy to defraud the Tribe by

inflating the Marley Firm’s bills, and (ii) his knowledge of the theft and his intent

to steal from the Tribe. See Maxwell, 579 F.3d at 1299; 18 U.S.C. § 1163. At

Marley’s trial, Hassun, who was Marley’s assistant, testified that Marley directed

her to inflate the invoices she submitted to the Tribe; told her to “be creative” in

doing so; asked her, on some occasions, to increase the invoices by a specific

percentage; and, on other occasions, told her he needed a certain amount of money

for the coming month. She testified that she never made the decision as to what to

bill or what not to bill and that she submitted the invoices to Marley for his

approval before sending them out. She further testified that Marley asked her to

pick up the checks issued by the Tribe so she could promptly deposit them into the

Marley Firm’s bank account, which was often overdrawn, and that, sometimes, she


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transferred funds from the Marley Firm’s bank account to Marley’s personal bank

account to cover overdrafts in the latter account. In addition, an accountant for the

Federal Bureau of Investigation (“FBI”) testified that the Tribe’s checks were

deposited into the Marley Firm’s accounts and that the Tribe was the source of

over 90% of the funds in those accounts. This evidence was sufficient to establish

that Marley knowingly and willfully joined the conspiracy and stole from the

Tribe.

         Marley’s contention that Hassun’s plea agreement rendered her testimony

incredible is unavailing, because we are bound by the jury’s credibility

determinations, unless testimony is unbelievable on its face. Peters, 403 F.3d at

1268; Thompson, 422 F.3d at 1291. Marley does not argue that Hassun’s

testimony was facially unbelievable, nor does the record support such an argument.

         Marley’s contention that the government failed to prove that the fraudulent

charges were not supported by his other, unbilled work is also unavailing. Defense

counsel presented that argument to the jury by eliciting from the FBI’s case agent

during cross-examination that he had not investigated the entirety of Marley’s

work and whether all of that work had been included in the Marley Firm’s

invoices. In addition, in his closing argument, defense counsel maintained that a

reasonable doubt existed as to whether Marley had performed sufficient work to

justify the inflated bills, and he encouraged the jury to conclude that Marley


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believed the money he received from the Tribe represented appropriate

compensation for his work. The jury declined to make that inference, and we are

bound by the jury’s rejection of inferences raised by the defense. See Peters,

403 F.3d at 1268.

                                     (2)    Hearsay ruling

      Marley contends that the district court erred by excluding as hearsay a

memorandum he wrote to the Tribe’s general counsel, after a division of the Tribe

had fired him, in which he listed the matters he handled during his eight-year

relationship with the Tribe (“the closing memo”). He maintains that he did not

offer the closing memo for the truth of its contents. Instead, he says, he offered it

to show that the government had not investigated the entirety of his work for the

Tribe and to give the jury information about his state of mind with respect to the

payments he received. Additionally, citing United States v. Hurn, 368 F.3d 1359,

1363 (11th Cir. 2004), he maintains that, notwithstanding the Federal Rules of

Evidence, the Constitution prohibits a court from excluding defense evidence that

directly pertains to the elements of the charged offense or that tends to place the

story presented by the prosecution in a significantly different light, such that a

reasonable jury might receive it differently. 1 He maintains that he offered the

closing memo for both of these purposes.


      1
          Hurn addressed a district court’s decision to exclude evidence presented by the
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       We review constitutional issues de novo. United States v. Brown, 364 F.3d

1266, 1268 (11th Cir. 2004). We review evidentiary rulings for abuse of

discretion. United States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009). An abuse

of discretion occurs if the district court applies an incorrect legal standard or makes

findings of fact that are clearly erroneous. Id.

       The Federal Rules of Evidence generally exclude hearsay from admissible

evidence. Fed.R.Evid. 802. Hearsay is an out-of-court statement “a party offers in

evidence to prove the truth of the matter asserted in the statement.”

Fed.R.Evid. 801(c)(2). When the declarant intends to make an assertion that

something is true, the hearsay rule applies whether the assertion is explicit or

implicit. See United States v. Groce, 682 F.2d 1359, 1364 (11th Cir. 1982). In

addition, evidence of the defendant’s good conduct is not admissible to negate his

criminal intent. United States v. Ellisor, 522 F.3d 1255, 1270-71 (11th Cir. 2008).

       Here, the district court neither applied an incorrect legal standard nor made

findings of fact that were clearly erroneous. See Wilk, 572 F.3d at 1234. In ruling

on Marley’s arguments, the court correctly noted that hearsay is admissible where

it is not offered for the truth of the matter asserted. However, it found that “the

memo was . . . clearly offered for the truth asserted therein,” and that by

introducing the memo during his cross-examination of the FBI case agent, defense


defendant, in the defense case. Hurn, 368 F.3d at 1362-63.
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counsel was attempting to expose the jury to Marley’s own self-serving statement

without subjecting him to cross-examination, which was “not permitted by the

Federal Rules of Evidence.”

      The court’s factual findings were not clearly erroneous. Defense counsel’s

cross-examination of the FBI case agent focused on whether the case agent had

investigated the full extent of Marley’s legitimate work for the Tribe, which was

precisely the topic of the closing memo. In addition, the memo, in which Marley

attempted to justify his firm’s fraudulent invoices by asserting that he had

performed 40 hours of unbilled work monthly during his eight-year tenure, was not

admissible to negate his intent to commit the crimes charged in the indictment.

See Groce, 682 F.2d at 1364; Ellisor, 522 F.3d at 1270-71. While Marley asserts

that he offered the memo to show his state of mind at the time he wrote it, that, too,

was an impermissible hearsay use that depended on the truth of the memo’s

contents.

      Marley’s contention that, by excluding the closing memo as hearsay, the

district court denied him the opportunity to rebut the government’s evidence of his

intent to defraud and steal from the Tribe, and to present the government’s

evidence in a different light, is misguided. See Hurn, 368 F.3d at 1363. While the

court ruled that defense counsel could not introduce the memo for the purpose of

cross-examining the FBI case agent, it did not categorically exclude the closing


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memo from evidence. Rather, it indicated that, if the defense wished to offer the

memo, Marley would have to take the stand to lay a foundation for its contents;

Marley declined to do so.

      Moreover, Marley, who waived his rights to testify and to present evidence

in his defense, had ample opportunity to contest the government’s evidence of his

intent and the adequacy of its investigation. Defense counsel extensively

cross-examined the FBI case agent about Marley’s work for the Tribe, and the case

agent repeatedly testified that his investigation did not determine whether Marley

may have performed work that was not reflected in the Marley Firm’s invoices.

And, as noted above, in his closing argument, defense counsel argued to the jury

that the government’s failure to investigate the extent of Marley’s uncompensated

work created a reasonable doubt as to his guilt. Accordingly, the district court did

not err in excluding the closing memo.

                                (3)    Loss amount

      Marley contends that the district court incorrectly calculated his loss amount

by considering the face value of the checks the Tribe issued in payment for the

Marley Firm’s invoices, rather than only the fraudulent portion of each check.

Additionally, he maintains that the court erroneously failed to subtract the amounts

of the unpaid January, February, and March 2011 invoices; $148,658 he alleges




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Hassun stole from the Marley Firm in an independent fraud scheme; and

$1,800,000 worth of his unbilled work for the Tribe.

      With respect to Sentencing Guidelines issues, we review purely legal

questions de novo, the district court’s factual findings for clear error, and, in most

cases, the district court’s application of the Guidelines to the facts with due

deference, which is tantamount to clear error review. United States v. Rothenberg,

610 F.3d 621, 624 (11th Cir. 2010). We review the district court’s loss calculation

for clear error. United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir. 1999).

To be clearly erroneous, a finding must leave us with a “definite and firm

conviction that a mistake has been committed.” Rothenberg, 610 F.3d at 624

(quotation omitted). A factual finding cannot be clearly erroneous when the

factfinder is choosing between two permissible views of the evidence. United

States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010).

      Under U.S.S.G. § 2B1.1, if the loss amount is more than $400,000, but less

than $1,000,000, a 14-point offense-level increase applies.

U.S.S.G. § 2B1.1(b)(1)(H), (I). The commentary to § 2B1.1 provides that the loss

shall be reduced by:

      The money returned, and the fair market value of the property
      returned and the services rendered, by the defendant or other persons
      acting jointly with the defendant, to the victim before the offense was
      detected. The time of detection of the offense is the earlier of (I) the
      time the offense was discovered by a victim or government agency; or


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      (II) the time the defendant knew or reasonably should have known
      that the offense was detected by a victim or government agency.

Id. § 2B1.1, comment. (n.3(E)(i)).

      Contrary to Marley’s assertion, the district court’s $996,605 loss calculation

included only the fraudulent charges in the Marley Firm’s bills. The court

correctly denied Marley’s request to subtract the amounts of the unpaid January,

February, and March 2011 invoices, because the evidence showed that the Tribe

discovered the fraud before it received the benefit of any legitimate services

charged in those invoices. See U.S.S.G. § 2B1.1, comment. (n.3(E)(i)).

Specifically, at trial, an advisor to the Tribe’s chairman testified that, when she

began working on the budget for the year 2010, she discovered information that

later led the Tribe to detect the fraud. Additionally, the Tribe’s director of finance

testified that the Tribe did not pay the Marley Firm’s January, February, and

March 2011 invoices because it had discovered the fraudulent charges in the firm’s

earlier invoices. Moreover, at sentencing, defense counsel acknowledged that,

while the Tribe did not officially fire Marley until March 2011, “there was

suspicion [of the offenses] approximately six months earlier.”

      The court also correctly denied Marley’s request to subtract the $148,658

Hassun allegedly stole from the Marley Firm. Any theft by Hassun from the

Marley Firm was not relevant to the offenses for which Marley was convicted, of

which the Tribe was the victim. Additionally, Hassun testified that the $148,658

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she deposited into her bank account represented her salary, and, at sentencing, the

court noted that it credited Hassun over Marley.

      The court did not err in denying Marley’s request to deduct the value of his

alleged unbilled work, in that the evidence did not show that any such deduction

was appropriate. Although Marley testified and pointed to his closing memo to

support his contention that he had done $1,800,000 worth of unbilled work

throughout his tenure with the Tribe, the court noted that it had “serious questions

as to [] Marley’s credibility.” And, while two members of the Tribe testified that

Marley had given them and other tribal members legal advice without billing them,

Marley did not provide evidence, other than his own testimony, that the Tribe had

agreed to pay him for the work he repeatedly failed to include in his bills.

According, the district court’s $996,605 loss calculation was not clearly erroneous.

                        (4)    Aggravated-role enhancement

      Marley argues that he did not qualify for an aggravated-role enhancement

under U.S.S.G. § 3B1.1(c) because, although he was the sole attorney at the

Marley Firm, Hassun was responsible for preparing and submitting the invoices.

He also maintains that, at a minimum, he and Hassun had a “co-equal relationship”

with regard to the offenses, in that Marley called Hassun “Momma,” Hassun had

access to his computer, and she admitted that she altered the entries in his desk

calendar to arrive at the inflated charges.


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      Under U.S.S.G. § 3B1.1(c), a two-point enhancement applies if the

defendant was an organizer, leader, manager, or supervisor in any criminal activity

that involved five or fewer participants and was not “otherwise extensive.”

See U.S.S.G. § 3B1.1(c). To qualify for the enhancement, the defendant must have

been the organizer, leader, manager, or supervisor of one or more other

participants. Id. § 3B1.1, comment. (n.2).

      Here, the district court found that Marley was an organizer, leader, manager,

or supervisor of the offenses. This finding was supported by Hassun’s testimony

that she acted at Marley’s direction in inflating and fabricating charges on the

Marley Firm’s invoices, that she never made the decision as to what to bill or what

not to bill, and that she submitted the invoices to Marley for approval before

sending them out. Accordingly, the court did not err in applying the § 3B1.1(c)

enhancement.

                         (5)   Abuse-of-trust enhancement

      Marley argues that the evidence did not show that he used his position as an

attorney to significantly facilitate his commission or concealment of the offenses.

He asserts that the Marley Firm submitted its invoices to the Tribe’s general

counsel, who was capable of determining whether or not to authorize payment for

them, and that the general counsel did not authorize payment based on any abuse

of trust by him.


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      Under U.S.S.G. § 3B1.3 a two-point enhancement applies “[i]f the defendant

abused a position of public or private trust . . . in a manner that significantly

facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. The

commentary to § 3B1.3 instructs:

      “Public or private trust” refers to a position of public or private trust
      characterized by professional or managerial discretion (i.e., substantial
      discretionary judgment that is ordinarily given considerable
      deference). Persons holding such positions ordinarily are subject to
      significantly less supervision than employees whose responsibilities
      are primarily non-discretionary in nature.

Id., comment. (n.1). In addition, we have held that, for the enhancement to apply,

the facts must demonstrate that (1) the defendant held a place of private or public

trust, (2) he abused that position in a way that significantly facilitated the

commission or concealment of the offenses, and (3) the victim conferred the trust.

United States v. Walker, 490 F.3d 1282, 1300 (11th Cir. 2007).

      Here, the district court concluded that the abuse-of-trust enhancement

applied because the Tribe allowed Marley to exercise a significant amount of

discretion with regard to his work and billing practices. See Walker, 490 F.3d

at 1300; U.S.S.G. § 3B1.3, comment. (n.1). The court’s conclusion was supported

by the trial evidence. At trial, the Tribe’s general counsel, who was blind and

could not read without the help of his assistant, testified that he did not review the

details of the Marley Firm’s bills, or the bills of the third-party firms Marley hired,

because he trusted that, as an attorney, Marley would be honest with him and bill

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him correctly. The trial evidence also showed that Marley used this discretion to

commit and conceal his offenses by having the third-party firms submit their bills

to him and inflating the charges in his firm’s bills to the Tribe. See U.S.S.G.

§ 3B1.3; Walker, 490 F.3d at 1300. Accordingly, the district court did not err in

applying the § 3B1.3 enhancement.

                               (6)    Restitution order

      Marley contends that the district court erred by failing to deduct the value of

his uncompensated work, including his unbilled work and the work billed in his

January, February, and March 2011 invoices. He maintains that not doing so

resulted in a windfall for the Tribe. He also maintains that the court erred by

failing to deduct the $148,658 Hassun allegedly stole from the Marley Firm.

      We review the legality of a restitution order de novo and the underlying

factual findings for clear error. United States v. Baldwin, 774 F.3d 711, 728

(11th Cir. 2014). Under 18 U.S.C. § 3663A(c), a defendant convicted of fraud

must pay restitution to the victim of his offenses. United States v. Moran, 778 F.3d

942, 985 (11th Cir. 2015). The government has the burden of proving the loss

amount by a preponderance of the evidence. Id. Because restitution is intended to

put the victim in the same position it would have been in had the crime never been

committed, any value of the services or items received by the victim must be offset

against the restitution order. Id.


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      The district court’s $996,605 restitution order was not erroneous. As

discussed earlier, the trial evidence supported the court’s $996,605 loss calculation,

and the court did not err by failing to deduct the value of Marley’s alleged, but

unproven, unbilled work. Marley’s contention that the court erred by failing to

deduct the amounts of his January, February, and March 2011 invoices lacks merit.

While, at sentencing, he contended that the Tribe owed him approximately

$160,000 from those invoices, he offered no probative evidence to show that the

invoices reflected $160,000 worth of legitimate work. His contention that the

court erred by failing to deduct the $148,658 Hassun allegedly stole from the

Marley Firm also lacks merit. As noted earlier, the alleged theft was not relevant

to the loss amount in this case. In any event, Hassun was ordered to pay restitution

in the amount of $148,658, and the district court ordered Marley to pay restitution

jointly and severally with her.

      Accordingly, for the reasons discussed above, Marley’s convictions and

sentences are AFFIRMED.




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