United States v. Elizabeth Genna Suarez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 23, 2024
• Docket: 23-11316
• Status: Unpublished

Opinion

USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 1 of 15

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11316 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELIZABETH GENNA SUAREZ, f.k.a. Elizabeth Mirson Suit,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:22-cr-80185-DMM-1 USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 2 of 15

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Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges. PER CURIAM: After appellant Elizabeth Genna Suarez used a credit card belonging to a nonprofit organization to pay for her personal ex- penses, a jury convicted her of three counts of wire fraud. On ap- peal, she challenges her convictions, arguing that there was insuffi- cient evidence of intent and that the jury returned an inconsistent verdict. After careful consideration, we affirm. I. The criminal charges in this case arise out of Suarez’s use of a credit card belonging to Piper’s Angels Foundation (PAF), a non- profit entity for which Suarez served as a board member. In this section, we introduce PAF and describe how Suarez, after marry- ing PAF’s founder, misappropriated its funds. We then review the procedural history of her criminal case. A. Travis Suit formed PAF in 2016 after his daughter, Piper, was diagnosed with cystic fibrosis.1 PAF supports individuals who have cystic fibrosis and their families. It provides them with urgent

1 In this section, we set forth the facts viewing the evidence in the light most

favorable to the government and drawing all reasonable inferences and credi- bility choices in favor of the jury’s guilty verdict, as we are required to do. See United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010). USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 3 of 15

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financial assistance to cover rent, utility bills, car payments, or med- ical expenses. In addition, PAF provides scholarships that fund trips for people with cystic fibrosis to experience saltwater activities such as paddleboarding or surfing. Suit wanted to encourage those with cystic fibrosis to engage in these activities after he learned of medical research showing improved outcomes for cystic fibrosis patients who are exposed to salt air environments. To raise money to support these programs, since 2017 PAF has hosted an annual international paddleboarding event, known as the “Crossing for Cystic Fibrosis.” In the Crossing, participants paddle approximately 80 miles from Bimini in the Bahamas to Flor- ida. To participate in the event, paddlers donate money to PAF. The first paddler to complete the event in his or her age division wins a cash prize. Many paddlers who won these prizes ended up returning or donating the money they won to PAF. The Crossing rapidly grew in size to become “the largest in- ternational paddleboarding event in the world.” Doc. 72 at 117. 2 In its first year, PAF raised approximately $130,000 from the Crossing. In 2019, PAF raised over $500,000 from the Crossing, with approx- imately $100,000 coming from corporate sponsors. PAF used a checking account at Bank of America as its oper- ating account. During the relevant period, Suit was the sole signa- tory on the account. When an individual with cystic fibrosis needed urgent financial assistance, PAF often would mail the person a

2 “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 4 of 15

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paper check signed by Suit. Because these urgent needs could arise at any time, Suit often left a few signed blank checks with PAF’s employees when he was traveling. Bank of America also issued PAF a debit card for the checking account. But PAF rarely used the card, which Suit kept at his home. PAF also had a corporate credit card account with Chase Bank. Suit and two or three other individuals at PAF received cor- porate credit cards, which they used to pay for many of the organ- ization’s expenses, including those incurred in running the Cross- ing. In late 2017, Suit and Suarez, who had previously been friends, began a romantic relationship. Within a few months, the couple was engaged. In June 2018, Suarez participated in the Cross- ing and won her division. She received a $3,000 purse prize. She did not keep the money; instead, she donated it back to PAF. In October 2018, Suit and Suarez wed. After they married, Suarez took over responsibility for managing their household’s fi- nances as well as Suit’s personal finances. Suit gave Suarez the login credentials for his personal Bank of America account so that she could pay bills. The login also gave Suarez access to online banking for PAF’s checking account. Shortly after the wedding, Suarez became a PAF board member. She took the lead on recruiting corporate sponsors for the Crossing event. She also volunteered to maintain the organiza- tion’s books and track its financial transactions. Suarez requested USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 5 of 15

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and received a PAF credit card from Chase. She was the only per- son who reviewed the transactions for her corporate credit card. In 2019, PAF began to use APLOS, an accounting software program for non-profit organizations, to track its finances. APLOS allowed a user to code each expense transaction with a specific cat- egory for record-keeping purposes. PAF’s treasurer, Kathy Aponte, assisted Suarez in creating the categories for coding the organiza- tion’s transactions. The list of categories included payments for in- dividual grants, which was what PAF called the urgent financial as- sistance provided to individuals with cystic fibrosis and their fami- lies; travel; repairs; program supplies; office supplies; and meals. Af- ter Aponte created the categories, Suarez alone was responsible for coding individual transactions. In July 2019, Suarez used her PAF corporate credit card sev- eral times to pay for her personal expenses. On July 18, she used the card to pay $8,000 to the Center for Facial Restoration in Miramar, Florida, to cover the deposit for her future rhinoplasty surgery. On July 31, she charged $1,680.25 at New Age Dermatol- ogy, Inc., in West Palm Beach. This charge was for a laser skin re- surfacing treatment designed to create a younger-looking appear- ance for Suarez, as well as an anti-aging sunscreen that she pur- chased. On July 31, Suarez made two corporate credit card charges at stores at a Palm Beach Gardens mall. She used the card at Ham- ilton Jewelers to pay $802.50 to refurbish a necklace that was a USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 6 of 15

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family heirloom of hers. And she used the card at a Billabong cloth- ing store to purchase three pairs of men’s swim trunks for $188.17. Later, Suarez logged into the APLOS software to categorize these charges. She coded the charges from the Center for Facial Restoration and New Age Dermatology as “Grants-Individuals.” Doc. 35-16 at 2, 4. For the Center for Facial Restoration charge, she added a comment that the rhinoplasty was for “reconstructive res- piratory therapy.” Doc. 72 at 225. She coded the charge from Ham- ilton Jewelers as “Fundraising” and the one from Billabong as “Pro- gram Supplies.” Doc. 35-16 at 2. Besides using PAF’s credit card to pay for personal expenses, Suarez used other methods to take money that belonged to PAF. After marrying Suit, she regularly used his personal Bank of Amer- ica credit card for her personal expenses. She then used Bank of America’s online banking portal to transfer money from PAF’s checking account to pay the amount owed on the credit card ac- count. Over the course of a year, she spent $119,058 of PAF’s money to pay personal credit card charges. Suarez also used PAF’s debit card to purchase personal items. She used the card to purchase a mattress, which cost approx- imately $3,300, and to buy items from Amazon. In addition, Suarez wrote checks to herself from PAF’s checking account. In June 2019, while Suit was traveling, she took two of the signed blank PAF checks he had left in case urgent finan- cial assistance was needed for cystic fibrosis families in his absence and wrote them to herself in the amounts of $10,000 and $5,000. USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 7 of 15

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On the memo line for one of the checks, she added a note to make it appear as though the check was the purse prize for coming in second place in her division at the 2019 Crossing event. Although Suarez had won $4,000 at the event, she had previously agreed that as a board member she would not accept any money. When Suit learned about the checks, he confronted Suarez over text message. She responded that she had written the checks to increase the balance in their personal bank account “to show in- come” for their home loan application. Doc. 35-1 at 1. She said that she had “already initiated transfer[s] back to PAF so it will be a wash.” Id. Suit responded, “So . . . you falsified our personal income with money from PAF to enhance our position in getting approved for a loan? Because if that’s the case, that was a serious lapse in judgment.” Id. at 2. Suarez replied, “I’m not sure why that’s such a horrible thing” because “people leverage their businesses that way all the time.” Id. at 3. She nevertheless apologized and promised, “[I]t will never happen again.” Id. at 5. Around the same time, PAF hired an outside firm, Temple- ton & Company, to handle its bookkeeping. When a PAF em- ployee gathered credit card statements for Templeton, she saw charges on the July 2019 statement for Suarez’s corporate card that appeared unrelated to PAF. The employee alerted Paul Smolchek, PAF’s president. Smolchek reviewed the company’s records and quickly identified over $48,000 in charges on Suarez’s corporate credit card that appeared unrelated to the organization. He initially confronted Suit. Based on Suit’s reaction, Smolchek was satisfied USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 8 of 15

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that he had no knowledge of Suarez’s misuse of the corporate credit card. Smolchek then confronted Suarez. When asked about the charge at Hamilton Jewelers, she responded that it must have been “a gift for a [cystic fibrosis] family.” Doc. 72 at 150. But she later admitted that “it was her necklace” and “she had made the charge.” Id. at 157. Suarez was removed from PAF’s board. The board then hired a forensic accountant, Jeffery Danik. As part of his investiga- tion, Danik interviewed Suarez twice. During those interviews, she admitted that she knew she could not use PAF’s credit card for per- sonal charges. She also admitted to making the purchase at Hamil- ton Jewelers. Danik ultimately determined that Suarez misappropriated a total of $158,960 from PAF. He provided her with charts listing every improper charge, purchase, or transfer he had identified. Af- ter reviewing these charts, Suarez told Danik that “everything . . . on these lists were her charges.” Doc. 73 at 105. She also stated that Suit “knew nothing about” her actions, saying he was “oblivious.” Id. After confessing to Danik, Suarez emailed PAF’s board to apologize for her actions. She promised to repay the organization and said that she was seeking guidance “to get [her] moral compass pointing due north.” Doc. 72 at 163. USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 9 of 15

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B. The government charged Suarez with four counts of wire fraud arising out of her use of PAF’s credit card. Count One con- cerned the $8,000 charge at the Center for Facial Restoration, Count Two centered on the $1,680.25 charge at New Age Derma- tology, Count Three concerned the $188.17 charge at Billabong, and Count Four arose from the $802.50 charge at Hamilton Jewel- ers. Suarez pleaded not guilty, and the case proceeded to trial. At trial, the government’s witnesses included Suit, Smolchek, and Danik. The government presented evidence about the incidents when Suarez misused PAF’s credit card, transferred money from PAF’s checking account to pay Suit’s credit card balance, wrote checks to herself out of PAF’s checking account, and used PAF’s debit card to purchase personal items. Suarez testified in her own defense. Although she admitted to using her PAF credit card at the Center for Facial Restoration and New Age Dermatology, she denied acting with any intent to “defraud or take from” PAF. Doc. 47 at 80. According to Suarez, she could charge her rhinoplasty sur- gery to PAF because she needed the surgery to correct a breathing problem, and the surgery would allow her to participate in the Crossing in future years. She also testified she was permitted to charge the surgery to PAF because she was building a relationship with the Center for Facial Restoration in hopes of persuading the company to donate $100,000 to be the title sponsor for the Crossing USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 10 of 15

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the next year. She said that Suit had told her to do “whatever [she] need[ed] to do to close sponsors” and had set an “example of doing business with sponsors and . . . building and maintaining those sponsor relations.” Id. at 77. She offered similar testimony to justify her use of PAF’s credit card at New Age Dermatology. She suggested that she could charge her laser facial treatment and sunscreen to PAF because she sustained “serious skin damage” from participating in the Crossing. Id. at 78. And she testified that she was permitted to charge amounts spent at New Age Dermatology to PAF because she “was hoping” to land the company as a future corporate sponsor for the Crossing. Id. at 79. Suarez denied using the PAF credit card at Hamilton Jewel- ers or Billabong. She told the jury that Suit had taken her credit card and made both purchases. When Suit testified, however, he denied making either purchase. The jury found Suarez guilty of the wire fraud charges in Counts One, Two, and Four. But it found her not guilty of Count Three, the wire fraud charge based on the Billabong purchase. The district court denied Suarez’s Rule 29 motion made during trial, as well as her post-trial motion for a judgment of acquittal. The court ultimately imposed a total sentence of 18 months’ imprisonment followed by a two-year term of supervised release. This is Suarez’s appeal. USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 11 of 15

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II. We review de novo a challenge to the sufficiency of the evi- dence and the denial of a Rule 29 motion for judgment of acquittal. United States v. Chafin, 808 F.3d 1263, 1268 (11th Cir. 2015). We will affirm the denial of a motion for judgment of acquittal if a reason- able trier of fact could conclude that the evidence established the defendant’s guilt beyond a reasonable doubt. United States v. Holmes, 814 F.3d 1246, 1250 (11th Cir. 2016). We view the evidence in the light most favorable to the government and draw all reason- able inferences and credibility choices in favor of the jury’s guilty verdict. United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir. 2010). “We review de novo whether inconsistent verdicts render a conviction improper.” United States v. Green, 981 F.3d 945, 960 (11th Cir. 2020). III. Suarez raises two arguments on appeal. First, she argues that the evidence was insufficient to support her convictions for Counts One and Two, which concerned the credit card charges at the Cen- ter for Facial Restoration and New Age Dermatology. Second, she argues that the jury rendered an inconsistent verdict when it con- victed her of Count Four, for the charge at Hamilton Jewelers, but acquitted her on Count Three, for the charge at the Billabong store. We address each argument in turn. USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 12 of 15

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A. We begin with Suarez’s challenge to the sufficiency of the evidence for Counts One and Two. She argues that the govern- ment failed to prove beyond a reasonable doubt that she acted with the intent to defraud. Instead, she maintains, the trial evidence showed that she honestly believed she could use the organization’s money for a rhinoplasty, a laser facial, and sunscreen because she was trying to secure sponsors for the Crossing. To convict a defendant for wire fraud, the government must prove, among other things, that the defendant had an “intent to defraud.” United States v. Watkins, 42 F.4th 1278, 1282 (11th Cir. 2022). A defendant intends to defraud when she “attempts to ob- tain, by deceptive means, something to which [s]he was not enti- tled.” Id. (alteration adopted) (internal quotation marks omitted). “A jury may infer intent to defraud from the defendant’s conduct.” United States v. Maxwell, 579 F.3d 1282, 1301 (11th Cir. 2009). Evi- dence that a defendant personally profited from the fraud may serve as circumstantial evidence of intent. United States v. Bradley, 644 F.3d 1213, 1239 (11th Cir. 2011). “Good faith is a complete defense to the element of intent to defraud.” United States v. Williams, 728 F.2d 1402, 1404 (11th Cir. 1984). “[A] finding of specific intent to defraud necessarily excludes a finding of good faith.” United States v. McNair, 605 F.3d 1152, 1201 n.65 (11th Cir. 2010). The jury reasonably could have concluded that Suarez acted with the intent to defraud when she used PAF’s credit card at USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 13 of 15

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the Center for Facial Restoration to pay an $8,000 deposit for her rhinoplasty surgery and at New Age Dermatology to pay more than $1,600 for a laser skin resurfacing treatment designed to create a younger-looking appearance and an anti-aging sunscreen. Suarez admitted at trial that she made both of these credit card charges. Because these charges were for services or products that benefitted or would benefit Suarez personally and would not benefit PAF, the jury could infer that she acted with an intent to defraud. See Bradley, 644 F.3d at 1239. True, Suarez testified that she honestly believed she could use the organization’s money to cover personal expenses so long as she was acting with the goal of securing sponsorships for PAF. But her testimony was directly refuted by Smolchek, who testified that PAF could not spend money to “buy” sponsorships in this way. Doc. 72 at 187. The jury was not required to accept Suarez’s testi- mony as true and instead could have made “adverse determina- tions about [her] credibility and reject[ed] [her] explanation as a complete fabrication.” United States v. Chalker, 966 F.3d 1177, 1188 (11th Cir. 2020) (internal quotation marks omitted). Other evidence in the record also supported an inference that Suarez was not acting in good faith and instead intended to defraud. She admitted to Danik that she knew she could not use PAF’s credit card to pay for personal charges. Also, after making the charges at the Center for Facial Restoration and New Age Der- matology, Suarez coded the charges in PAF’s accounting software as individual grants. It was reasonable for the jury to conclude that USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 14 of 15

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Suarez purposefully mislabeled these expenses to make the charges look legitimate and to cover up her illegal actions. And her email to the PAF board apologizing for her conduct could be construed as an acknowledgment of wrongdoing and deceit. Moreover, alt- hough the government did not charge Suarez with any crimes based on the incidents when she repeatedly transferred money from PAF’s checking account to pay off a personal credit card, wrote herself $10,000 and $5,000 checks from PAF’s checking ac- count, or purchased a mattress with PAF’s debit card, the jury could have concluded that these similarly fraudulent actions were indicative of her intent to defraud with respect to the purchases made at the Center for Facial Restoration and New Age Dermatol- ogy. See United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (explaining that a defendant engaging in a similar act, even though uncharged, is “probative with regard to a defendant’s intent in the charged offense”). After reviewing the record, we conclude that a reasonable trier of fact could have found that the evidence established beyond a reasonable doubt that Suarez acted with an intent to defraud. We thus affirm her convictions on Counts One and Two. B. Suarez challenges her conviction on Count Four on a differ- ent ground. She says that the jury’s guilty verdict on this count was “inconsistent” with the not-guilty verdict on Count Three, and thus her conviction on Count Fourt must be set aside. Appellant’s USCA11 Case: 23-11316 Document: 47-1 Date Filed: 04/23/2024 Page: 15 of 15

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Br. 1. But, as Suarez acknowledges, this argument is foreclosed by our precedent. Even assuming Suarez is correct that the jury rendered in- consistent verdicts on Counts Three and Four, we have long held that a guilty verdict on one count “must stand, even in the face of an inconsistent verdict on another count” so long as it is supported by sufficient evidence. United States v. Mitchell, 146 F.3d 1338, 1345 (11th Cir. 1998). And Suarez concedes that there was sufficient ev- idence to support her conviction on Count Four. 3 So we affirm her conviction on Count Four. AFFIRMED.

3 Even without this concession, we would conclude that there was sufficient

evidence to support the jury’s verdict on Count Four. Although Suarez denied making the charge at Hamilton Jewelers and instead said that Suit was the one who made the purchase, Suit testified that he did not make the purchase. And both Smolchek and Danik testified that Suarez admitted to making the charge at the jewelry store. The jury could have resolved this conflict in the evidence by finding Suarez’s testimony not credible and concluding that she made the charge at Hamilton Jewelers. And for the reasons given in Section III-A above, the jury could have concluded that Suarez acted with an intent to defraud when she charged the cost of refurbishing her necklace to PAF.