United States v. Gary R. Tomey, II

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 26, 2019
• Docket: 17-10634
• Status: Unpublished

Opinion

Case: 17-10634 Date Filed: 07/26/2019 Page: 1 of 37

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-10634 ________________________

D.C. Docket No. 3:15-cr-00060-MCR-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GARY R. TOMEY, II,

Defendant - Appellant.

________________________

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

(July 26, 2019)

Before MARTIN, JILL PRYOR and JULIE CARNES, Circuit Judges.

JILL PRYOR, Circuit Judge: Case: 17-10634 Date Filed: 07/26/2019 Page: 2 of 37

Appellant Gary R. Tomey, II, operated several nonprofit entities that

engaged in telemarketing to collect donations for charities. Solicitors working for

the entities called potential donors. Using a script that Tomey prepared, the

solicitors stated that they were volunteers with a local charity raising money to

support women and children, all the money raised would be donated to the charity,

and the money would stay within the donor’s state. In fact, though, the solicitors

were paid employees calling from another state and only a tiny percentage of the

money was donated to charities that served women and children.

Tomey was charged with one count of conspiracy to commit mail and wire

fraud as well seven counts of mail fraud. After a nine-day trial, a jury convicted

Tomey on all counts. The district court then sentenced him to 90 months’

imprisonment. On appeal, Tomey raised several challenges, including whether:

(1) the government presented sufficient evidence to support his conspiracy

conviction; (2) the district court constructively amended the indictment or allowed

the government to introduce evidence that resulted in a material variance from the

indictment; and (3) the district court improperly considered Tomey’s lack of

remorse during sentencing. After a thorough review of the parties’ briefs and the

record, and with the benefit of oral argument, we affirm Tomey’s convictions and

sentence.

2 Case: 17-10634 Date Filed: 07/26/2019 Page: 3 of 37

I. BACKGROUND

A. Factual Background

This case arises out of Tomey’s operation of three charitable

organizations—Youth Achievement League (“YAL”), Children and Family

Services (“CFS”) and Children’s Charitable Services (“CCS”)—that used

telemarketers to solicit donations. After working for years at for-profit

telemarketing businesses, Tomey joined YAL and then founded CFS and CCS.

A. Tomey’s History in the Telemarking Industry

Tomey first worked in the telemarketing industry for Telcom Enterprises, a

for-profit company that engaged in telemarketing to raise money for charities in

Mississippi, Indiana, and Ohio. Charities hired Telcom to call potential donors and

in exchange paid Telcom a percentage of the money raised. Telcom had either its

employees or subcontractors make the telemarketing calls.

Tomey began at Telcom as a sales representative, calling potential donors

and seeking donations on behalf of charitable organizations. Tomey rose through

the ranks at Telcom and eventually became a regional director.

While working at Telcom, Tomey formed Short Call, a for-profit entity that

became a Telcom subcontractor. Through Short Call, Tomey ran a call center that

solicited donations. By working as a Telcom subcontractor, rather than as an

employee, Tomey was able to keep a greater percentage of the donations and 3 Case: 17-10634 Date Filed: 07/26/2019 Page: 4 of 37

effectively received a pay raise. When Short Call secured a donation, it kept

approximately 38-42% of the money raised, about 15-25% went to the charity, and

Telcom kept the rest.

B. Tomey’s Activities with YAL

While operating Short Call, Tomey attended a Telcom conference with

Anthony DiLoreto, another Telcom subcontractor. DiLoreto shared with Tomey a

new business idea: to create a nonprofit organization that would solicit

contributions and then donate the proceeds to charities. Because the fundraising

organization would itself be a charity, solicitors could tell potential donors that all

money raised went to “the charity.” In addition, this operation would allow

DiLoreto to cut out Telcom, meaning that more money could be given to charity

(or, alternatively, be kept by DiLoreto).

In 2006, DiLoreto formed his nonprofit organization, YAL. DiLoreto

intended for YAL to raise money to be donated to charities that provided after-

school programs and other youth activities. DiLoreto served as president of YAL

and as the chair of its board.

About a year after YAL was created, Tomey joined YAL as its executive

director and a board member. With board approval, Tomey expanded YAL’s

fundraising operations from Indiana to Ohio and Mississippi. Tomey had YAL

solicit donations using fictitious names: in Ohio it was “Ohio Children Services,” 4 Case: 17-10634 Date Filed: 07/26/2019 Page: 5 of 37

and in Mississippi it was “Mississippi Children Services.” We now detail how

Children Services operated in each state.

1. Children Services’ Operations in Ohio

Tomey expanded YAL’s fundraising operations by having YAL fundraise in

Ohio as Ohio Children Services. He had a group of Short Call employees call

potential donors in Ohio to solicit donations. When the solicitors called potential

donors, they used a script that Tomey had prepared. The solicitors told potential

donors that the proceeds raised would stay in Ohio and also that 100% of donations

went to “the charity.”

If a person agreed to donate to Ohio Children Services, Tomey would mail

the potential donor a package that included a donation form. The donation form,

created by Tomey, described Ohio Children Services as a charitable organization

that assisted children throughout Ohio by sponsoring them in Special Olympics

events, donating to foundations that fulfilled the last wishes of terminally ill

children, and donating to shelters for abused women and children. The form also

stated that Ohio Children Services hired no fundraisers or professional solicitors

and that all fundraising was done by members of the charity, implying that they

were unpaid volunteers. In fact, Ohio Children Services had donated no money to

charity, and the solicitors were paid fundraisers.

5 Case: 17-10634 Date Filed: 07/26/2019 Page: 6 of 37

Because Tomey knew that donors were more likely to give to a local charity,

he took steps to make it appear that Ohio Children Services was based in Ohio,

even though all fundraising activities occurred in Florida. The solicitors placed

their calls from Florida, but their phone numbers appeared on caller identification

systems with Ohio area codes. When Tomey sent packages to potential donors, he

shipped the packages from Florida to a United Parcel Services (“UPS”) store in

Ohio so that the store could then place the packages in the mail to make it appear

that they had been shipped from Ohio. The donation forms also indicated that

Ohio Children Services had an Ohio address and directed donors to mail their

contributions to the Ohio address. In fact, the address was for a UPS mailbox that

Tomey had rented. The UPS store then forwarded any mail to Tomey in Florida.

Shortly after Ohio Children Services began receiving donations in the mail,

the United States Postal Service (“USPS”) opened an investigation into the entity.

An investigator notified Tomey that the USPS was withholding mail addressed to

Ohio Children Services while it investigated whether Ohio Children Services was

using a fictitious or false name and violating the federal mail fraud statute. In

response, Tomey told the investigator that Ohio Children Services was a legitimate

charity that operated under the umbrella of YAL. Upon learning that Ohio law

required YAL to register with the state to solicit donations, Tomey had YAL

register with the state and signed the registration documents as YAL’s Chief 6 Case: 17-10634 Date Filed: 07/26/2019 Page: 7 of 37

Financial Officer. When the USPS investigator contacted YAL to ask about Ohio

Children Services, YAL directed the investigator back to Tomey.

The USPS investigator questioned Tomey about statements that Ohio

Children Services made to potential donors. The investigator asked whether

anyone at Ohio Children Services was getting paid; Tomey responded that the

organization was a volunteer effort, failing to disclose that the solicitors were paid.

When the investigator asked whether Ohio Children Services had given money to

charities, Tomey admitted that Ohio Children Services had given no money.

The investigation was resolved when Tomey, on behalf of Ohio Children

Services, signed a consent agreement with the USPS. In the agreement, Tomey

agreed to “permanently discontinue[] and abandon[]” making statements that Ohio

Children Services was a § 501(c)(3) tax deductible charity or that it donated funds

to various charitable organizations. Gov’t Ex. 30i, 30l. 1

2. Children Services’ Operations in Mississippi

Tomey also solicited donations for YAL under the fictitious name

Mississippi Children Services. Tomey had Mississippi Children Services operate

in much the same way as Ohio Children Services. Solicitors told potential donors

that Mississippi Children Services was a nonprofit organization that funded

1 Citations in the form “Gov’t Ex. X” refer to the government’s trial exhibits. 7 Case: 17-10634 Date Filed: 07/26/2019 Page: 8 of 37

charities in Mississippi that worked with victims of children abduction and also

donated to women and children’s shelters in Mississippi. As part of the pitch, the

solicitors stated that the donations would be used to help children in Mississippi.

The solicitors also told potential donors that “100% of your donation goes directly

to the charity” and that the organization did not use professional fundraisers.

Gov’t Ex. 28h.

As in Ohio, if a person agreed to donate, Tomey would mail him a package

of materials. The donation form indicated that Mississippi Children Services was a

“[c]hapter of [YAL].” Id. The form also identified several charities in Mississippi

that Mississippi Children Services assisted. The form emphasized that Mississippi

Children Services did not hire any fundraisers or professional solicitors and that all

fundraising was “done by members of the charity.” Id. With each mailer, Tomey

would include a return envelope with a Mississippi address. The address was

actually for a UPS mailbox that Tomey had rented. Any mail sent to the address

was forwarded to Tomey.

After receiving complaints about Mississippi Children Services, the

Mississippi Secretary of State’s office opened an investigation. Because the

donation forms stated that Mississippi Children Services was a chapter of YAL, the

Secretary of State’s examiner sent a letter to DiLoreto, YAL’s president, warning

8 Case: 17-10634 Date Filed: 07/26/2019 Page: 9 of 37

that YAL needed to be registered with Mississippi to solicit contributions as

Mississippi Children Services.

During the investigation, the examiner spoke to DiLoreto. DiLoreto told the

examiner that YAL (doing business as Mississippi Children Services) had a

physical office in Mississippi that was run by Tomey. In addition, DiLoreto stated

that 100% of funds Mississippi Children Services raised were donated to other

charities because Mississippi Children Services had no administrative costs.

When the examiner later spoke to Tomey, Tomey admitted that Mississippi

Children Services had no office in Mississippi but said that it planned to open one.

Tomey provided documentation showing that Mississippi Children Services had

received over $10,000 in donations but gave only $1,100 to charity.

In response to the Secretary of State’s inquiries, YAL d/b/a Mississippi

Children Services registered with the state of Mississippi. Tomey submitted the

organization’s registration materials. In the registration materials, Tomey stated

that he and DiLoreto were responsible for distributing funds and maintaining the

organization’s financial records. Tomey also indicated that Mississippi Children

Services used volunteers, not professionals, to solicit donations. Tomey stated that

neither YAL nor any of its officers, directors, employees, or fundraisers had (1)

been enjoined from soliciting, (2) been the subject of any proceeding regarding any

solicitation or registration, or (3) entered into a voluntary compliance agreement 9 Case: 17-10634 Date Filed: 07/26/2019 Page: 10 of 37

with any government agency. Tomey provided this answer even though just a few

months earlier he had entered into a consent agreement to resolve the USPS’s

investigation of Ohio Children Services.

Later, when YAL sought to renew its Mississippi registration, the Secretary

of State’s office requested additional financial information from Tomey and YAL.

When Tomey failed to provide the requested information, the Secretary of State’s

office warned YAL that unless it provided complete information, its registration

would be denied. DiLoreto responded that YAL would not be renewing its

registration and had ceased conducting business in Mississippi. DiLoreto

explained that the charity had not been able to raise enough money to continue its

fundraising efforts and blamed Mississippi’s registration process as being too

burdensome “for a volunteer based charity.” Gov’t Ex. 28p.

C. Tomey’s Activities with CFS and CCS

Eventually, Tomey started CFS and CCS, his own nonprofit organizations

modeled on YAL. Tomey started CFS in Florida in December 2008, and CCS in

Mississippi in February 2010.2 Like YAL, these organizations were set up as

2 Apparently, Tomey changed the organization’s name from Children and Family Services to Children’s Charitable Services in response to complaints that the name could be confused with states’ children and family services agencies. 10 Case: 17-10634 Date Filed: 07/26/2019 Page: 11 of 37

nonprofit entities that used telemarketing operations to raise money for other

charities.

Tomey operated CFS’s and CCS’s fundraising efforts from Florida in the

same way that he operated YAL’s. Tomey again prepared the scripts that the

solicitors used and the mailers that were sent to donors. In phone calls, CFS and

CCS solicitors stated (1) they were volunteers, (2) they were calling from an office

within the potential donor’s state, and (3) 100% of donations would go to helping

women and children in the state.

None of these statements was entirely true. First, the solicitors were paid

employees, not volunteers. Second, the solicitors were located in Milton, Florida,

not the potential donor’s state. The solicitors used different organization names in

each state; for example, in Alabama they stated that they were from Alabama

Children and Family Services and in Mississippi they stated they were from

Mississippi Children and Family Services. In fact, CFS and CCS had no offices

outside of Florida. To make it appear that CFS and CCS were local charities,

Tomey again set up UPS mailboxes and had mail forwarded to him in Florida.

Third, although 100% of the donations went to CFS and CCS, which were

technically charities, much of the money collected was used to cover overhead

costs for the organizations themselves, including employees’ salaries, and also to

pay for Tomey’s expenses. 11 Case: 17-10634 Date Filed: 07/26/2019 Page: 12 of 37

Just like YAL, CFS and CCS were investigated by government agencies in

the states where they operated. For example, after CFS solicited donations in

Arkansas, the Arkansas Attorney General’s Office filed a civil complaint against

CFS and Tomey. The complaint alleged that Tomey operated CFS identically to a

for-profit fundraising company and that he had created the entity as a nonprofit “to

avoid telemarketing regulations concerning charitable solicitations, to deceive

customers as to the ultimate use of charitable donations, and ultimately, to enrich

himself.” Gov’t. Ex. 25i at 4. The Arkansas Attorney General claimed that CFS

violated the law because (1) it was not properly registered to solicit donations in

Arkansas, (2) its name was confusingly similar to Arkansas’s Division of Children

and Family Services, (3) it falsely used an Arkansas address without maintaining

an office in the state, and (4) on phone calls and in written materials it falsely

represented that 100% of donations went to charity.

Tomey settled the suit by agreeing to a consent decree with the Arkansas

Attorney General. In the consent decree, he admitted that CFS had falsely

represented that the funds raised were to be used in Arkansas, the individuals

making the telemarketing calls were volunteers, and 100% of funds were to be

used for charitable purposes. Tomey also admitted that CFS had used the

“overwhelming majority of funds . . . to pay wages and commissions of the

telemarketers” while providing “almost no charitable aid or services.” Gov’t Ex. 12 Case: 17-10634 Date Filed: 07/26/2019 Page: 13 of 37

25l at 5. The consent decree reflected that although CFS had collected $50,907.50

in donations in Arkansas, only $325 had been donated to charities. The decree

barred CFS, Tomey, and future ventures that Tomey joined from soliciting

charitable contributions in Arkansas and required Tomey to dissolve CFS

immediately. CFS and Tomey also were required to pay $50,907.50 in restitution

and a $50,000 penalty.

After entering into the consent decree, CFS ceased operations in Arkansas.

But CFS and/or CCS continued to operate in much the same way in other states,

including Alabama, Indiana, Ohio, Mississippi, and Tennessee.

Eventually, the Federal Bureau of Investigation (“FBI”) learned about CFS’s

and CCS’s fundraising operations and began to investigate. The FBI interviewed

Eric Eakes, whom Tomey hired to oversee day-to-day operations at CFS and CCS.

After the interview, Eakes told Tomey that the FBI was investigating them for mail

and wire fraud. Yet Tomey continued to run CFS and CCS without any major

changes. As part of the investigation, the FBI sent a confidential human source to

work at CCS. The source was provided scripts confirming that CCS continued to

use the same fundraising tactics.

During the investigation, Tomey agreed to be interviewed by the FBI. In the

interview, he was asked about the statement in the scripts that 100% of donations

went to “the charity.” He insisted that the statement was accurate because CFS and 13 Case: 17-10634 Date Filed: 07/26/2019 Page: 14 of 37

CCS, which received the donations, were organized as nonprofits. But he

acknowledged that it would have been inaccurate for solicitors to tell potential

donors that all money went back to their state. The FBI also questioned Tomey

about the practice of solicitors referring to themselves as volunteers. Tomey

explained that solicitors had called themselves volunteers because “they volunteer

to come to work.” Doc. 131-7 at 35.3 But he indicated that employees no longer

stated that they were volunteers.

B. Procedural History

A federal grand jury indicted Tomey, along with Eakes, on one count of

conspiracy to commit mail and wire fraud and seven substantive counts of mail

fraud. The indictment alleged that between August 12, 2008 and May 31, 2012,

Tomey and Eakes conspired “together and with other persons” to commit mail

fraud and wire fraud. Doc. 1 at 1. The indictment included a description of the

manner and means that Tomey used to operate the scheme, explaining that Tomey

operated CFS and CCS and also that he used “other entities as part of the scheme,

including [YAL].” Id. at 2. The indictment also stated that the USPS had issued a

cease and desist order against Tomey based on Ohio Children Services’

fundraising activities. Tomey and Eakes pled not guilty.

3 Citations in the form “Doc. #” refer to the numbered entries on the district court docket. 14 Case: 17-10634 Date Filed: 07/26/2019 Page: 15 of 37

1. The Criminal Trial

Over the course of a nine-day jury trial, the government presented evidence

about how Tomey operated YAL, CFS, and CCS. The government introduced

evidence about each organization’s fundraising practices. Former employees who

solicited donations admitted that they told potential donors that they were

volunteers and that 100% of money raised went to children or charity. In addition,

the government called as witnesses dozens of victims who received telemarketing

calls. The victims described how the solicitors told them that 100% of their

donations would go to charity; all money raised would be used in their home state;

and the solicitors were volunteers, not paid fundraisers.

The government also introduced evidence about the investigations into each

entity. The jury heard testimony from the FBI agent who performed the

investigation and had interviewed Tomey and Eakes. The jury also heard about

other agencies’ investigations of YAL, CFS, and CCS and the resolution of each

investigation. The jury thus heard about the Arkansas litigation and the consent

decree, where Tomey admitted that CFS had made misrepresentations and violated

the law.

The government also presented evidence about how much money YAL,

CFS, and CCS raised and donated to other charities. The organizations raised a

total of more than $2 million. But only a small fraction was donated to charities. 15 Case: 17-10634 Date Filed: 07/26/2019 Page: 16 of 37

The government’s evidence indicated that the organizations donated only about

$58,000. Tomey asserted that that YAL, CFS, and CCS donated more to charity—

approximately $200,000. But even if Tomey’s number was accurate, it still meant

that YAL, CFS, and CCS donated only about 10% of the money they raised to

charity.

The jury also heard how Tomey spent the remaining money that YAL, CFS,

and CCS had raised. The government presented evidence that a significant amount

of the money went to cover payroll expenses. In addition, Tomey and DiLoreto

received significant amounts of money from the entities. CFS, CCS, and YAL

transferred over $30,000 to Short Call, Tomey’s for-profit business. And the

government presented evidence that Tomey spent an additional $100,000 by using

debit cards linked to the organizations’ bank accounts to cover his meals, gas,

hotels, and other expenses. For example, Tomey used the debit cards to pay for

meals and bar tabs at Hooters and a local bar called “Mugs & Jugs.” In response,

Tomey maintained that the expenses were legitimate because he incurred them

while having meals or drinks with the organizations’ board members, who were his

close friends, and discussing the organizations. The evidence also showed that

Tomey regularly transferred money from a YAL bank account that he controlled to

a YAL account that DiLoreto controlled, sending more than $263,000 to DiLoreto.

16 Case: 17-10634 Date Filed: 07/26/2019 Page: 17 of 37

At the close of the government’s case, Tomey orally moved for a judgment

of acquittal as to all counts. The court took the motion under advisement while the

trial proceeded. Tomey called several witnesses and testified in his own defense.

At the close of all evidence, Tomey orally renewed his motion for judgment of

acquittal. The motion was taken under advisement, and the case was submitted to

the jury.

During its deliberations, the jury sent the judge a single question: “Can one

Defendant be found guilty on Count [1] and one Defendant found not guilty on

Count [1]?” Doc. 131-8 at 337. The government argued that the answer was yes.

Because the indictment charged that Tomey and Eakes conspired “together and

with other persons,” the government asserted, the jury could find a conspiracy

between a defendant and an unnamed coconspirator. Anticipating that the jury

might identify DiLoreto as the unindicted coconspirator, the government explained

that there was sufficient evidence for the jury to find a conspiracy between Tomey

and DiLoreto because DiLoreto: (1) formed YAL and told Tomey about it; (2)

gave Tomey permission to form the fictitious entities under YAL; (3) spoke with

the Mississippi Secretary of State’s office on behalf of Mississippi Children

Services; and (4) represented that Mississippi Children Services had an office in

Mississippi and that 100% of the money it raised went to charity.

In answering the jury’s question, the district court instructed: 17 Case: 17-10634 Date Filed: 07/26/2019 Page: 18 of 37

[Y]es, one Defendant can be found guilty and one not guilty on Count [1]. However, in order to find either of the Defendants guilty on Count [1], you must first find beyond a reasonable doubt that the Defendant under consideration conspired with at least one other person to commit the offense charged in Count [1]. In order to do so, you must also find that the Government proved beyond a reasonable doubt that the other person or persons committed the crime of conspiracy charged in Count [1] according to all of the elements of conspiracy as contained in your instruction. To the extent you find one Defendant guilty and the other not guilty, you must identify on the verdict form next to Count [1] for that Defendant the person or persons with whom you have found the Defendant conspired to commit the offense charged in Count [1].

Doc. 131-8 at 345.

Based on the jury’s question, Tomey renewed his motion for a judgment of

acquittal, arguing among other things that there was insufficient evidence of a

conspiracy between Tomey and any unnamed party. The district court took that

motion under advisement as to the conspiracy count but denied Tomey’s motion as

to the remaining counts.

The jury returned a verdict convicting Tomey of all counts but acquitting

Eakes of all counts. Next to the conspiracy count on the verdict form, the jury

wrote the names of three individuals with whom Tomey had conspired. One of

those names was DiLoreto.

2. Tomey’s Post-Trial Motion

After the trial, Tomey filed a written motion for judgment of acquittal on the

conspiracy count, renewing his argument that there was insufficient evidence that

18 Case: 17-10634 Date Filed: 07/26/2019 Page: 19 of 37

he had conspired with another individual. The district court denied the motion.

The court explained that the government “presented sufficient evidence during its

case-in-chief from which a rational jury could find that Tomey conspired with at

least one other person, namely, co-defendant Eakes, to commit mail and wire

fraud.” Doc. 103 at 4. In the alternative, the court determined, “a rational jury

could . . . find that Tomey knowingly and willfully conspired with an unindicted

coconspirator, Anthony DiLoreto, to commit mail and wire fraud.” Id. at 9.

3. Sentencing

At the sentencing hearing, the district court calculated Tomey’s total offense

level as 29 and his criminal history category as I, which yielded an advisory

Sentencing Guidelines range of 87 to 108 months’ imprisonment. The court then

gave the parties an opportunity to address the factors identified in 18 U.S.C.

§ 3553(a). 4

4 Under § 3553(a), the district court is required to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes” of the statute. These purposes include the need to: reflect the seriousness of the offense, promote respect for the law, provide just punishment, deter criminal conduct, protect the public from the defendant’s future criminal conduct, and effectively provide the defendant with educational or vocational training, medical care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guideline range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).

19 Case: 17-10634 Date Filed: 07/26/2019 Page: 20 of 37

Tomey asked the court to impose a sentence below the guidelines range. He

chose to allocute during his sentencing and told the court that he had not given the

wording of the solicitation scripts “proper attention.” Doc. 128 at 11. He stated

that he had not intended to commit a crime. He explained that he had been advised

by colleagues and his attorney that for engaging in the conduct, at most, he would

suffer civil penalties. If he had been aware that he could be subject to federal

charges and taken away from his family, Tomey declared, he never would have

engaged in the activity.

The district court imposed a 90-month sentence, which was at the low end of

the guidelines range. In imposing the sentence, the district court indicated that it

had considered the nature and seriousness of the offense, Tomey’s history and

characteristics, the need to promote respect for the law, the need for general and

specific deterrence, and the need to avoid unwarranted sentencing disparities. In

addressing the need for deterrence, the court noted that when testifying at trial and

speaking at the sentencing, Tomey had characterized the case as being about his

failure to properly word scripts. The district courted stated that it was “troubling

. . . that your denials persist even today.” Id. at 29. In imposing the sentence, the

court acknowledged that Tomey was not required to admit that what he did was

wrong, but the court nonetheless indicated that it was disturbed that Tomey

“fail[ed] to show any insight into the wrongfulness of [his] actions.” Id. at 29-30. 20 Case: 17-10634 Date Filed: 07/26/2019 Page: 21 of 37

This is Tomey’s appeal.

II. ANALYSIS

Tomey raises three arguments on appeal. First, he contends that the district

court erred in denying his motion for a judgment of acquittal because the

government presented insufficient evidence to support his conviction on any of the

charged crimes. Second, he argues that he was convicted of a conspiracy crime

that was not charged in the indictment because the district court’s jury instructions

constructively amended the indictment and the evidence that the government

presented at trial materially varied from the conspiracy crime charged in the

indictment. Third, he asserts that the district court improperly considered his lack

of remorse at sentencing. We consider each argument in turn.

A. The District Court Properly Denied the Motion for Judgment of Acquittal Because There Was Sufficient Evidence to Support Tomey’s Convictions.

Tomey argues that we must reverse his convictions on both the conspiracy

count and the substantive mail fraud counts. We review de novo the district court’s

denial of a judgment of acquittal on sufficiency of evidence grounds, considering

the evidence in the light most favorable to the government and drawing all

reasonable inferences as well as credibility determinations in the government’s

favor. United States v. Capers, 708 F.3d 1286, 1296 (11th Cir. 2013). We may

not overturn a jury’s verdict “if any reasonable construction of the evidence would 21 Case: 17-10634 Date Filed: 07/26/2019 Page: 22 of 37

have allowed the jury to find the defendant guilty beyond a reasonable doubt.” Id.

at 1297 (internal quotation marks omitted). Applying this standard of review, we

conclude that there was sufficient evidence on the conspiracy count as well as the

substantive mail fraud counts.

1. The Government Presented Sufficient Evidence to Establish that Tomey and DiLoreto Agreed to Commit Mail and Wire Fraud.

To sustain a conviction for conspiracy to commit mail and wire fraud, the

government must present evidence establishing, beyond a reasonable doubt, that

(1) two or more persons agreed to a common, unlawful plan to commit mail or

wire fraud, (2) the defendant knew of the unlawful plan, and (3) the defendant

voluntarily joined the plan. United States v. Martin, 803 F.3d 581, 588 (11th Cir.

2015); see 18 U.S.C. §§ 1341, 1343, 1349. “Because conspiracies are secretive by

nature, the jury must often rely on inferences from the conduct of the alleged

participants or from circumstantial evidence of a scheme.” Martin, 803 F.3d at

588 (internal quotation marks omitted). But the inferences must be reasonable and

not based on mere speculation. Id. at 587.

Tomey argues that the government failed to prove that he and DiLoreto

agreed to a plan to commit mail or wire fraud because the government presented

no evidence from which a reasonable jury could conclude that “DiLoreto was put

on notice of the alleged unlawful activity and willfully joined in the same.”

22 Case: 17-10634 Date Filed: 07/26/2019 Page: 23 of 37

Appellant’s Br. at 18. More specifically, Tomey asserts that there was no evidence

that DiLoreto knew that the solicitors who were working for Tomey at Children

Services were making misrepresentations to potential donors.

Although there was no direct evidence that Tomey and DiLoreto reached an

agreement, there was ample circumstantial evidence that DiLoreto knew about

Children Services’ fundraising practices, and thus a jury reasonably could infer

that Tomey and DiLoreto reached an agreement. The government presented

evidence that DiLoreto was the head of YAL and created the plan to form a

telemarketing charity so that solicitors could tell potential donors that 100% of

proceeds went to “the charity.” As a YAL board member, DiLoreto also approved

Tomey’s expansion of YAL’s fundraising activities through entities doing business

as Children Services.

In addition, the government introduced evidence showing that DiLoreto

knew the solicitors working for YAL (under the fictitious name Children Services)

were making false statements. Tomey testified that DiLoreto reviewed the scripts

and approved the language in the pitches, including the statement that 100% of

donations would go to “the charity.” And a jury could conclude that DiLoreto

knew that the 100% statement was false from the evidence showing that Tomey

transferred approximately $263,000 of the money that Children Services raised to

an account controlled by DiLoreto. 23 Case: 17-10634 Date Filed: 07/26/2019 Page: 24 of 37

The evidence about DiLoreto’s communications with the Mississippi

Secretary of State also supports an inference that DiLoreto knew that the solicitors

for Children Services were making false statements. When the Mississippi

examiner contacted DiLoreto about Children Services’ fundraising activity in

Mississippi, DiLoreto told the examiner that YAL, operating through the fictitious

entity Children Services, had a physical office in Mississippi, 100% of the funds

raised by Children Services went to the charity, and Children Services had no

administrative costs because YAL was covering all of them. As it turns out, none

of these statements was true. A jury reasonably could conclude that DiLoreto

made these statements in an attempt to mislead the examiner so that he would not

investigate Children Services more closely and uncover the fraud.

The conclusion that DiLoreto conspired with Tomey is also supported by

evidence showing that DiLoreto profited from the scheme. Over about an 18-

month period, Tomey transferred approximately $263,000 from his YAL account

to a YAL account that DiLoreto controlled. A reasonable jury could conclude

from this evidence that Tomey was transferring a share of the fruits of the

fraudulent scheme to his partner, DiLoreto. True, Tomey testified that the transfers

were innocent and were made to cover the cost of the payroll for the employees

who engaged in the telemarketing. But a jury, hearing Tomey’s words and

observing his demeanor, was entitled to discredit the testimony and, indeed, to 24 Case: 17-10634 Date Filed: 07/26/2019 Page: 25 of 37

believe the opposite of what Tomey said. See United States v. Brown, 53 F.3d 312,

314 (11th Cir. 1995).

Viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences in its favor, a jury could find beyond a

reasonable doubt that Tomey and DiLoreto conspired to commit mail or wire

fraud. The district court therefore did not err in denying Tomey’s motion for a

judgment of acquittal as to the conspiracy count. 5

2. The Government Presented Sufficient Evidence to Establish that Tomey Committed Mail Fraud.

Tomey also challenges his mail fraud conviction. To establish that Tomey

committed mail fraud, the government had to show that he “(1) intentionally

participate[d] in a scheme to defraud and (2) use[d] the mails in furtherance of the

scheme.” United States v. Pendergraft, 297 F.3d 1198, 1208 (11th Cir. 2002).

“An intent to defraud may be found when the defendant believed that he could

deceive the person to whom he made the material misrepresentation out of money

or property of some value.” United States v. Maxwell, 579 F.3d 1282, 1301 (11th

Cir. 2009) (internal quotation marks omitted). The government need not produce

5 In its order denying Tomey’s motion for judgment of acquittal, the district court found in the alternative that there was sufficient evidence that Tomey had conspired with Eakes. On appeal, the government concedes that the district court should not have considered whether there was sufficient evidence that Tomey conspired with Eakes in light of the jury’s special verdict form, which did not list Eakes as a co-conspirator. Because we find sufficient evidence that Tomey conspired with DiLoreto, we need not address the district court’s alternative theory. 25 Case: 17-10634 Date Filed: 07/26/2019 Page: 26 of 37

direct evidence of criminal intent but, instead, can rely on circumstantial evidence.

See id.

Tomey argues that the district court erred in denying his motion for

judgment of acquittal as to the substantive mail fraud counts because the

government failed to introduce sufficient evidence that he acted with an intent to

defraud. We disagree—there was overwhelming evidence of his intent.

A jury could find that Tomey acted with an intent to defraud based on the

evidence about his acts in designing the scheme. As the person running the

telemarketing fundraising activities for YAL, CFS, and CCS, Tomey participated

in creating the scripts and donor forms, which included false statements about

(1) where the organizations were located, (2) whether the employees were

volunteers, (3) the percentage of money collected that went to the charities, and (4)

in which state the money would be used. In addition, Tomey took other steps to

make it appear to potential donors that YAL, CFS, and CCS were local charities

operating in the donor’s state, even though they were based in Florida. Tomey

would mail a donation package to a UPS store in the donor’s home state where it

would then be mailed to the donor, making it appear that YAL, CFS, or CCS had

mailed the package from within the donor’s state. In addition, Tomey rented UPS

mailboxes in each state so that it would appear to donors that they were sending

26 Case: 17-10634 Date Filed: 07/26/2019 Page: 27 of 37

their contributions to a local office. In reality, the donations were forwarded to one

office in Florida.

In addition, the evidence shows that Tomey personally profited from the

scheme. The government introduced evidence showing that Tomey used money

donated to YAL, CFS, and CCS to pay for his personal expenses by charging more

than $100,000 for personal expenses such as meals, gas, hotels, and bar tabs.

Although Tomey testified that the expenses were legitimate business expenses, a

jury was entitled to disbelieve this testimony and find that he used the donations to

pay for his personal expenses. See Brown, 53 F.3d at 314.

There’s other evidence that makes the inference that Tomey acted with an

intent to defraud even stronger. When Tomey signed the consent decree with the

Arkansas Attorney General, he admitted that CFS’s solicitation materials included

misrepresentations. Even after admitting that the materials contained

misrepresentations, Tomey continued to have solicitors use the same fundraising

practices in other states. Because Tomey directed solicitors to use scripts that he

knew contained misrepresentations, a jury reasonably could find that Tomey

intended to defraud.

Tomey nevertheless argues that there was insufficient evidence because he

simply followed generally accepted practices in the telemarketing industry.

Although Tomey testified that he followed generally accepted practices and did not 27 Case: 17-10634 Date Filed: 07/26/2019 Page: 28 of 37

mean to make any misrepresentations, the jury again was entitled to disbelieve his

testimony. See id. In light of the overwhelming evidence of Tomey’s intent, the

district court did not err in denying Tomey’s motion for a judgment of acquittal

with regard to the mail fraud counts.

B. There Was Neither a Constructive Amendment of Nor a Material Variance from the Indictment.

Under the Fifth Amendment, a defendant can be convicted only of the

crimes charged in the indictment. United States v. Holt, 777 F.3d 1234, 1261 (11th

Cir. 2015). If the evidence at trial or the court’s jury instructions deviate from the

allegations in the indictment, a constructive amendment or variance can arise. Id.

Tomey argues that his conspiracy conviction must be vacated because the district

court’s instruction on the conspiracy charge constructively amended the indictment

and the evidence offered at trial materially varied from the indictment’s

allegations. We disagree.

1. There Was No Constructive Amendment.

A constructive amendment occurs “when the essential elements of the

offense contained in the indictment are altered to broaden the possible bases for

conviction beyond what is contained in the indictment.” United States v. Narog,

372 F.3d 1243, 1247 (11th Cir. 2004) (internal quotation marks omitted). An

indictment may be constructively amended by a district court’s instructions. Holt,

28 Case: 17-10634 Date Filed: 07/26/2019 Page: 29 of 37

777 F.3d at 1261. “A constructive amendment is per se reversible error.” Id.

(internal quotation marks omitted).

Tomey argues that the district court broadened the possible bases for his

conviction of the conspiracy offense when the court told the jury that it could find

one defendant (Tomey) guilty of conspiracy but the other defendant (Eakes) not

guilty. Tomey asserts that this instruction improperly broadened the possible bases

for his conviction in two ways: (1) by allowing the jury to find that he conspired

with an unnamed individual, even though the indictment alleged only that he

conspired with Eakes and (2) by allowing the jury to find that there was a

conspiracy as to YAL when the indictment alleged a conspiracy only to CFS and

CCS. Because Tomey failed to raise the constructive amendment issue in the

district court, we review only for plain error. 6 See Holt, 777 F.3d at 1261. We

conclude that Tomey failed to show that the district court committed any error, let

alone plain error, because the district court’s response to the jury’s question did not

broaden the possible bases for conviction.

6 We will reverse a conviction under plain error review only if we find “(1) an error (2) that is plain and (3) that has affected the defendant’s substantial rights; and if the first three prongs are satisfied, we may exercise discretion to correct the error if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013) (alterations adopted) (internal quotation marks omitted). 29 Case: 17-10634 Date Filed: 07/26/2019 Page: 30 of 37

With respect to Tomey’s first argument, no constructive amendment

occurred when the court told the jury that it could consider whether Tomey

conspired with individuals other than Eakes. The indictment stated that Tomey

and Eakes “conspire[d] . . . together and with other persons” to engage in mail and

wire fraud. Doc. 1 at 1 (emphasis added). Because the indictment expressly

alleged that the conspiracy involved Eakes as well as other unidentified

individuals, the district court did not broaden the possible bases for conviction

when it told the jury that Tomey could be convicted if the jury found that he

engaged in a conspiracy with an individual other than Eakes.

Turning to Tomey’s second argument, no constructive amendment occurred

when the district court gave an answer that permitted the jury to find that Tomey

engaged in a conspiracy involving YAL because the indictment alleged that he

engaged in a scheme that involved all three nonprofit entities—YAL, CFS, and

CCS. Certainly, the indictment’s primary focus was on CFS and CCS. But the

indictment’s allegations nonetheless were sufficient to give Tomey notice that the

scope of the conspiracy included the operation of YAL.

Three aspects of the indictment put Tomey on notice that the charged

conspiracy involved YAL. First, the manner and means portion of the indictment

alleged that Tomey “also incorporated or registered other entities to use as part” of

the scheme. Doc. 1 at 2. Importantly, the first entity listed in this paragraph was 30 Case: 17-10634 Date Filed: 07/26/2019 Page: 31 of 37

YAL. Second, the manner and means section mentioned that the USPS had issued

a cease and desist letter against Tomey. The USPS’s investigation arose from

fundraising activities that Tomey undertook through YAL under the fictitious

name Ohio Children Services, so the reference to the USPS investigation indicated

that the charged conspiracy related to YAL. Third, the time period of the

conspiracy identified in the indictment—August 2008 through May 2012—notified

Tomey that the scheme involved YAL. At the beginning of this time period,

Tomey had not yet formed either CFS or CCS. YAL was the only active entity at

the time; the date range thus informed Tomey that the conspiracy involved his

conduct and actions in operating YAL.

Moreover, because the indictment alleged that the fraudulent scheme

extended to YAL, Tomey had notice that DiLoreto was one of the unnamed

coconspirators. After all, DiLoreto formed YAL, was its president, and served as a

member of its board. And, as we explained above, DiLoreto was involved in the

fundraising activities that Tomey had YAL perform under the fictitious name

Children Services: DiLoreto reviewed the scripts that YAL’s solicitors used and

responded to the Mississippi examiners who were investigating the fundraising

activities. Because the indictment both alleged a conspiracy that involved

unnamed co-conspirators and covered the operation of YAL, the court did not

broaden the possible bases for conviction beyond what was contained in the 31 Case: 17-10634 Date Filed: 07/26/2019 Page: 32 of 37

indictment when it instructed the jury that it could find one defendant (Tomey)

guilty of conspiracy, even if they found the other defendant (Eakes) not guilty. See

Narog, 372 F.3d at 1247.

2. There Was No Material Variance.

A material variance “occurs when the facts proved at trial deviate from the

facts contained in the indictment but the essential elements of the offense are the

same.” Narog, 372 F.3d at 1247 (internal quotation marks omitted). “The

allegations in the indictment and proof at trial must correspond so that the

defendant is properly notified of the charges, enabling him to present a defense”

and protecting the defendant against a subsequent prosecution for the same

offense. Holt, 777 F.3d at 1261. A variance requires reversal “only when the

defendant can establish that his rights were substantially prejudiced.” Id.

Tomey argues that a material variance occurred at trial because he was

convicted of conspiring with DiLoreto in connection with the operation of YAL,

yet the indictment alleged only that he conspired with Eakes regarding the

operation of CFS and CCS. Tomey failed to raise this argument in the district

court, however; we therefore review only for plain error. See United States v.

Dennis, 237 F.3d 1295, 1300 (11th Cir. 2001). We conclude that Tomey failed to

demonstrate any error, let alone plain error, because he cannot establish that the

evidence introduced at trial varied from the allegations in the indictment. And 32 Case: 17-10634 Date Filed: 07/26/2019 Page: 33 of 37

even if we assume that there was a material variance, Tomey cannot show that he

suffered substantial prejudice as a result.

As an initial matter, Tomey cannot show that a material variance occurred.

Tomey’s variance argument rests on the premise that the scheme alleged in the

indictment was limited to a conspiracy with Eakes that involved only CFS and

CCS. Given the limited allegations, Tomey contends, the government deviated

from the facts alleged when it introduced evidence showing that he conspired with

DiLoreto with respect to the operation of YAL. But the same allegations that put

Tomey on notice that the conspiracy involved unnamed individuals and YAL

allowed the government to prove the offense by showing that he conspired with

DiLoreto in operating YAL. 7

Even if we assume that there was a material variance, though, Tomey cannot

show that he experienced substantial prejudice. To demonstrate substantial

prejudice, a defendant must show that (1) “the proof at trial differed so greatly

from the charges that [he] was unfairly surprised and was unable to prepare an

adequate defense” or (2) there were “so many defendants and separate conspiracies

before the jury that there [was] a substantial likelihood that the jury transferred

7 This is true even though the indictment also alleged that Tomey violated the law by conspiring with Eakes in connection with the operation of CFS and CCS. See United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000) (recognizing that when the government charged several means of violating a statute in the conjunctive, a conviction could be obtained with proof of “only one of the means”). 33 Case: 17-10634 Date Filed: 07/26/2019 Page: 34 of 37

proof of one conspiracy to a defendant involved in another.” United States v.

Calderon, 127 F.3d 1314, 1328 (11th Cir. 1997). Tomey argues that he

experienced substantial prejudice because he was unfairly surprised and unable to

prepare an adequate defense to the government’s theory that he conspired with

DiLoreto. But we conclude that Tomey had adequate warning such that he was

able to prepare an adequate defense.

Tomey had an ample opportunity at trial to present a defense that the

government failed to prove that he conspired with DiLoreto as to YAL because he

knew about the government’s theory prior to trial. Before trial, the government

turned over to the defense an exhibit list indicating that it would be introducing

exhibits that related solely to YAL—such as the organization’s bank records and

tax returns. In addition, the government listed exhibits that related to regulators’

investigations of Ohio Children Services and Mississippi Children Services, the

fictitious names that Tomey used when he engaged in fundraising activities for

YAL. The exhibit list thus gave Tomey notice that the government was relying on

a theory that the conspiracy extended to YAL. And Tomey’s own actions in trial

preparation confirm that he understood that the government would be pursuing this

theory because Tomey listed DiLoreto as a potential witness, although he

ultimately decided not to call him at trial.

34 Case: 17-10634 Date Filed: 07/26/2019 Page: 35 of 37

At trial Tomey actually presented a defense that he had not conspired with

DiLoreto with respect to YAL. When Tomey testified, he told the jury about his

relationship with DiLoreto. He tried to rebut the government’s theory that

DiLoreto profited from YAL’s operation by testifying that the transfers of money

to DiLoreto had an innocent explanation—to reimburse YAL for payroll expenses.

Although the jury ultimately did not believe Tomey’s defense, he had fair notice

that the crimes charged included that he conspired with DiLoreto and thus had an

opportunity to offer a defense. See United States v. Glinton, 154 F.3d 1245, 1252

(11th Cir. 1998) (concluding that there was no prejudice when the defendants were

“fairly apprised” of the charged activity and had an opportunity to present a

defense to a trial).

C. The District Court Was Entitled to Consider Tomey’s Lack of Remorse at Sentencing.

Finally, Tomey argues that the district court erred in considering his lack of

remorse at sentencing. We discern no error.

“[T]he familiar abuse-of-discretion standard of review . . . applies to

appellate review of sentencing decisions.” Gall v. United States, 552 U.S. 38, 46,

(2007). A court abuses its discretion in imposing a sentence if it (1) fails to

consider relevant factors that were due significant weight, (2) gives an improper or

irrelevant factor significant weight, or (3) commits a clear error of judgment by

35 Case: 17-10634 Date Filed: 07/26/2019 Page: 36 of 37

balancing the proper factors unreasonably. See United States v. Irey, 612 F.3d

1160, 1189 (11th Cir. 2010) (en banc). “The party challenging the sentence bears

the burden of establishing that the sentence is unreasonable in light of the record

and the § 3553(a) factors.” United States v. Early, 686 F.3d 1219, 1221 (11th Cir.

2012). We review de novo whether the district court considered an impermissible

sentencing factor. See United States v. Stanley, 739 F.3d 633, 652 (11th Cir.

2014).

When a defendant chooses, without pressure from the court, to allocute at

his sentencing hearing and repeatedly denies any wrongdoing, the court is

permitted to consider the defendant’s freely offered statements indicating a lack of

remorse. See id. “Just as a jury weighs a defendant’s testimony once he waives

his Fifth Amendment privilege at trial, a judge may consider a defendant’s freely

offered allocution regarding remorse during sentencing.” Id. Here, because

Tomey voluntarily addressed the court during trial and at sentencing, the district

court did not err when it considered his lack of remorse.

Tomey nonetheless argues that the district court erred under the former Fifth

Circuit’s decision in Thomas v. United States, 368 F.2d 941 (5th Cir. 1961). 8 In

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 36 Case: 17-10634 Date Filed: 07/26/2019 Page: 37 of 37

Thomas, at sentencing the district court told the defendant, who had pled not

guilty, that if he “c[a]me clean,” the court would take that into account in imposing

a sentence. Id. at 944. The court also warned the defendant that if he chose not to

confess, the court would take that fact into account at sentencing. Id. When the

defendant continued to assert his innocence, the court imposed the maximum

permissible sentence on the defendant. The former Fifth Circuit vacated the

sentence, reasoning that the district court abused its discretion by giving “a

judicially imposed penalty” for the defendant’s exercise of his constitutional rights

to assert his innocence and continue with his appeal. Id. at 946. But Thomas does

not apply in the situation here. Unlike in Thomas, the district court made no

statements indicating that the sentence would depend on whether Tomey chose to

address the court. Because Tomey freely and voluntarily chose to address the

court during allocution without pressure from the court, the court was permitted to

consider the content of Tomey’s voluntary statements, including that he had

expressed no remorse, in crafting a sentence. See Stanley, 739 F.3d at 652-53.

III. CONCLUSION

For the reasons set forth above, we affirm the judgment and sentence of the

district court.

AFFIRMED.