United States v. Eric J. Scott

440 F. App'x 772
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 8, 2011
Docket10-15951
StatusUnpublished
Cited by1 cases

This text of 440 F. App'x 772 (United States v. Eric J. Scott) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Eric J. Scott, 440 F. App'x 772 (11th Cir. 2011).

Opinion

PER CURIAM:

Eric J. Scott appeals his convictions and sentence after a jury found him guilty of one count of conspiracy to defraud the United States and to commit wire fraud and bank fraud, in violation of 18 U.S.C. § 371; one count of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; and one count of bank fraud, in violation of 18 U.S.C. §§ 1344 and 2. On appeal, Scott argues the district court erred when it (1) denied his motion for judgment of acquittal because the evidence was insufficient to support his convictions; and (2) when it calculated the fraud loss amount attributable to him at sentencing. After review, we affirm Scott’s convictions and sentence.

*774 I.

Section 371 makes it illegal for two or more persons to “conspire either to commit any offense against the United States, or to defraud the United States.” 18 U.S.C. § 371. To sustain a conviction under § 371, “the Government must prove: (1) that an agreement existed between two or more persons to commit a crime; (2) that the defendant knowingly and voluntarily joined or participated in the conspiracy; and (3) a conspirator performed an overt act in furtherance of the agreement.” United States v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir.2006). “The knowledge requirement is satisfied when the Government shows a defendant’s awareness of the essential nature of the conspiracy.” Id.

To establish the offense of wire fraud under 18 U.S.C. § 1343, the Government must prove “(1) intentional participation in a scheme to defraud and (2) use of the interstate wires in furtherance of the scheme.” United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir.2003). Similarly, a conviction for bank fraud under 18 U.S.C. § 1344 requires proof that (1) the defendant intentionally participated in a scheme to defraud and (2) the intended victim was a federally-insured financial institution. United States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir.2002). To sustain a conviction for aiding and abetting under 18 U.S.C. § 2, the Government must show that the defendant “associated himself with a criminal venture, participated in it as something he wished to bring about and sought by his actions to make it succeed.” United States v. Schwartz, 666 F.2d 461, 463 (11th Cir.1982) (quotation and citation omitted).

The evidence was sufficient for a reasonable jury to conclude that Scott was a knowing participant in the conspiracy because he (1) knew of the nominee purchases, (2) knew that such purchases were made to facilitate his wife, Gretchen Scott’s, applications to receive Section 8 benefits under the U.S. Department of Housing and Urban Development’s (“HUD”) Housing Choice Voucher Program, and (3) personally participated in the scheme by signing over a property to a nominee purchaser, signing inspection reports of the properties to facilitate the Section 8 applications, and entering into leases of properties he knew he did not own. 1 Although Scott argues that he did not personally participate or know of the fraudulent misrepresentations made to the financial institutions by the nominee purchasers, Scott’s knowing participation in the conspiracy is sufficient to sustain his convictions. See Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946) (a defendant who knowingly participates in a conspiracy is liable for the acts of his co-conspirators done in furtherance of the conspiracy, even if he did not personally participate in those acts); United States v. Valdes-Guerra, 758 F.2d 1411, 1415 (11th Cir.1985) (a person may be found guilty of a conspiracy “even though [he] did not know all of the details of the agreement ... and even if he played only a minor role in the scheme”).

Further, even though Scott only dealt with the St. Peterburg Housing Authority, the evidence supports that the conspiracy acted to defraud the United States. “A conspiracy [to defraud] may be effected where a defendant uses a third party to reach and defraud the government.” United States v. Harmas, 974 F.2d 1262, *775 1267 (11th Cir.1992). The evidence showed the conspirators knowingly used the St. Peterburg Housing Authority to reach and defraud HUD.

The evidence was also sufficient for a reasonable jury to conclude Scott committed wire fraud and bank fraud because he “associated himself with a criminal venture, participated in it as something he wished to bring about and sought by his actions to make it succeed.” Schwartz, 666 F.2d at 463. The evidence also showed the fraud used interstate wires and that an intended victim was a federally-insured financial institution, Branch Banking and Trust, Company. Moreover, the jury was entitled to disbelieve Scott’s testimony and come to the opposite conclusion of that to which he testified — that he did know the loans were obtained fraudulently. See United States v. Brown, 53 F.3d 312, 314 (11th Cir.1995) (stating “a statement by a defendant, if disbelieved by the jury, may be considered as substantive evidence of the defendant’s guilt”).

II.

The Sentencing Guidelines define the “actual loss” as “the reasonably foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1, comment. (n.3(A)(i)). 2 In calculating the loss amount, the commentary to the Sentencing Guidelines states that the loss shall be reduced by “the amount the victim has recovered at the time of sentencing from disposition of the collateral, or if the collateral has not been disposed of by that time, the fair market value of the collateral at the time of sentencing.” U.S.S.G. § 2B1.1, comment. (n.3(E)(ii)).

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Related

Scott v. United States
181 L. Ed. 2d 1001 (Supreme Court, 2012)

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Bluebook (online)
440 F. App'x 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-eric-j-scott-ca11-2011.