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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12053 ________________________
D.C. Docket No. 2:17-cr-00016-JES-UAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KAY F. GOW, JOHN G. WILLIAMS, JR. Defendants-Appellants.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(September 16, 2021)
Before NEWSOM, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM: USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 2 of 24
Kay Gow and John Williams appeal their convictions for wire fraud and
conspiracy to commit wire fraud.1 2 Relevant here, they were convicted of a
scheme to defraud Lee County, Florida and private investors in funding a startup
dietary supplement company. Both defendants assert that the government failed to
prove that they had the intent to defraud. Viewing the evidence in the light most
favorable to the government, we conclude that the government offered ample
evidence from which a reasonable jury could convict the defendants beyond a
reasonable doubt. Accordingly, and with the benefit of oral argument, we affirm
the defendants’ convictions.
I. Background
A. Factual Background
We write primarily for the parties who are familiar with the record.
Sometime around 2001, Robert Gow founded an herbal extract company called
HerbalScience, LLC. In an effort to develop HerbalScience into a market leader in
dietary supplements, Robert Gow recruited investors including his friend, John
Williams, whom he had known for over 25 years. Williams invested almost $1
1 Kay Gow was also convicted of conspiracy to commit money laundering and of illegal monetary transactions, but she does not appeal those convictions. 2 Kay Gow’s husband, Robert Gow, was also tried and convicted as part of the same scheme. However, Robert is not a party to this appeal because he died after being convicted but before being sentenced.
2 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 3 of 24
million in HerbalScience. However, the company failed to live up to its potential
and was on the verge of bankruptcy.
In 2010, Robert Gow founded VR Laboratories, LLC, and his wife, Kay
Gow, later founded VR Labs, Inc. (collectively “VR Labs”). The Gows intended
to build a facility for the company that would be large enough to house both
HerbalScience’s extraction of chemicals from plants and VR Labs’s manufacturing
of products with those chemicals. Around the same time VR Labs was founded,
Jeffrey Kottkamp had completed his time as the Lieutenant Governor of Florida.
Robert Gow persuaded Kottkamp to represent VR Labs and assist the company in
securing public and private funding in exchange for a 5% interest in the stock of
the company.
When other efforts to obtain funding were unsuccessful, VR Labs shifted
focus to its “fallback” plan to build a production facility in Lee County, Florida. In
February 2011, Kay Gow, on behalf of VR Labs, applied for a $5 million grant
from Lee County’s Economic Development Office, whose task it was to “[w]ork[]
with both the private sector and the public sector” “to energize business growth
and attract new business to the area.” The application implied that VR Labs was
already operating as a successful company and claimed that VR Labs was a
“multinational business enterprise” that was projected to create 208 high-wage jobs
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between 2012 and 2016. The application also stated that VR Labs planned to
contribute approximately $9 million in capital for the project over three years.
Ultimately, Lee County approved VR Labs’s $5 million grant application.
Then, as VR Labs’s secretary, Kay Gow signed a contract governing the
administration of the grant. Among other things, the agreement required Lee
County to reimburse VR Labs for any “qualified capital investment,” which the
agreement defined as “investments made by or on behalf of [VR Labs] for
purchasing manufacturing and research and development equipment for Project
facility, constructing improvements to real property on Project Site . . . , and
acquiring or leasing furniture, fixtures, and equipment for the project facility.” The
agreement provided further that VR Labs would employ at least 208 people by no
later than the end of 2016 and have an annual payroll of approximately $13.5
million. Finally, as noted, VR Labs was obligated to invest $9 million in the
project within three years. Lee County included this investment provision in the
agreement because VR Labs had failed to provide financial information in its grant
application, so the county wanted some assurance that the company had funds of
its own to invest in the project—in other words, that it had “skin in the game.”
With the county’s grant funds in hand, the Gows began implementing their
plans for VR Labs’s production facility. They recruited Williams to procure and
manage the bottling equipment that VR Labs would need to package the
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company’s products even though he had no experience in the bottling industry.
Williams then used a company he owned, Fast Response Maintenance, to do
business as “Williams Specialty Bottling Equipment” (“Williams Bottling”).
Williams signed a subscription agreement, stating that he would invest $1.3 million
in VR Labs in exchange for a 1.3% percent interest in the company. That same
day, the subscription agreement was amended to name “Hong Kong Associates,”
rather than Williams’s company Fast Response Maintenance, as the investor even
though Williams had no connection to Hong Kong. =Kay Gow then directed
Williams to work with a real bottle production company, A Packaging Systems
(“APACKS”), to obtain the necessary equipment.
Before Williams Bottling signed a contract with APACKS, Williams
Bottling submitted an invoice to VR Labs for approximately $1.7 million for the
“turnkey proprietary bottling line” that it was supposed to be getting from
APACKS. Williams Bottling’s invoice was approximately $500,000 more than the
$1,265,584.33 pricing estimate that APACKS sent to Williams Bottling. Using a
line of credit taken out by VR Labs’s contractor, GCM, Kay Gow approved a
partial payment for approximately $700,000 of Williams Bottling’s invoice.3 VR
Labs then sent its first payment request to Lee County for Williams Bottling’s $1.7
3 After Gow had approved partial payment for Williams Bottling’s $1.7 million invoice, APACKS sent Williams a much reduced proposal for the bottling equipment (still approximately $800,000). 5 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 6 of 24
million invoice, which the County paid. Thus, among other expenses, the credit
that VR Labs used to pay Williams Bottling’s invoice was reimbursed through the
grant program.
Williams Bottling moved a portion of the funds received from VR Labs
(more than $700,000) to Williams’s new personal savings account, Williams then
transferred $250,000 from his savings account back to Williams Bottling, and
Williams Bottling transferred $320,000 to VR Labs as an investment under his
subscription agreement. The same day that Williams Bottling transferred that
investment payment, VR Labs paid HerbalScience a $33,333 “license fee” that was
due.
Eventually, APACKS and Williams Bottling neared a final agreement for
the bottling equipment. As the final proposal included several additional items to
improve the efficiency of the bottling line, the initial proposal price increased by
approximately $400,000. Williams Bottling agreed to the increased price and sent
a new invoice to VR Labs for an $843,885 “change order.” Kay Gow instructed
GCM to pay Williams Bottling about 80% of that amount (again drawn from its
credit line). After receiving that payment, Williams Bottling transferred $660,000
back to VR Labs, which was due under Williams’s subscription agreement. Then
VR Labs included the change-order invoice in its second request to Lee County for
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reimbursement. The county approved the request and issued VR Labs a check for
approximately $1.1 million.
Ultimately, Lee County reimbursed VR Labs $4,694,548.04. Of that
amount, $2,383,154.90 went to reimburse payments VR Labs made to Williams
Bottling using theline of credit that GCM obtained. And, in turn, Williams
Bottling transferred $1,430,000 of the county grant money back to VR Labs.
The money that Williams Bottling transferred to VR Labs was not used for
“qualified capital investments” as required by VR Labs’s agreement with the
county. Instead, VR Labs paid $267,830.22 to HerbalScience for licensing fees
and a technical-services contract. Another $691,465.18 paid for employee salaries
(including $135,247.03 that went to the Gows’ salaries). And $90,587.14 of the
grant money reimbursed the Gows for their “expenses,” including airline tickets
and expensive dinners out with each other and with Williams. Between payments
to their other company, their own salaries, and reimbursed expenses, the Gows
personally obtained $552,164.39 of the county grant money that was supposed to
be used only for approved capital expenditures.
Of course, the Lee County grant money was not enough to make VR Labs
profitable—or even make ends meet. For example, VR Labs owed more than
$900,000 to a contractor who had completed renovating a building that was
supposed to house the bottling line. VR Labs had paid APACKS only half of what
7 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 8 of 24
it owed for the completed bottling equipment, so APACKS refused to ship the
equipment to VR Labs. The only packaged drinks that VR Labs produced had
been bottled by a contractor. And VR Labs fell behind on its rent.
To keep VR Labs afloat, Robert Gow tried to recruit investors, including
Robert Haynes. Haynes had a background in biotechnologies and was interested in
moving to Naples and finding a job at VR Labs. Robert Gow told Haynes that VR
Labs was “full steam ahead” and starting to grow and had a job opportunity for
him. When Haynes asked to see VR Labs’s financial statements, Robert Gow
refused the request on the grounds that ongoing merger negotiations were
confidential. Haynes ultimately accepted an offer of employment, contingent on
his investment of $500,000. To encourage Haynes to invest, Robert Gow falsely
claimed that Kottkamp had invested $1 million. Ultimately, Haynes accepted the
job and invested $500,000.
VR Labs never secured the bottling equipment, a bank foreclosed on its
renovated facility, and APACKS went bankrupt.
B. Procedural History
A federal grand jury returned an indictment charging Robert and Kay Gow
with one count of conspiracy to commit wire fraud, in violation of 18 U.S.C.
§ 371; four counts of wire fraud, in violation of 18 U.S.C. §§ 1343 and 2; one
count of conspiracy to commit money laundering, in violation of 18 U.S.C.
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§ 1956(h); and four counts of engaging in illegal monetary transactions, in
violation of 18 U.S.C. §§ 1957 and 2. Relevant here, one of the wire fraud counts
concerned Kay Gow’s role in fraudulently obtaining funds from Lee County, and
another was concerned with Robert Gow’s attempt to induce Haynes to invest in
VR Labs. Williams was charged with one count of conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 371; and four counts of wire fraud, in violation of
18 U.S.C. §§ 1343 and 2.
The district court presided over a 12-day jury trial. Williams moved for a
judgment of acquittal three times—at the close of the government’s case, at the
close of trial, and after the jury’s verdict. The Gows also moved for judgments of
acquittal at the close of the government’s case and at the close of trial. The district
court denied the defendants’ motions.
A jury convicted the Gows on all counts and convicted Williams of
conspiracy and two counts of wire fraud (he was acquitted on the other two counts
of wire fraud). Kay Gow was sentenced to a total of 120 months’ imprisonment
followed by three years’ supervised release. Williams was sentenced to a total of
30 months’ imprisonment followed by three years’ supervised release. Kay Gow
and Williams timely appealed, challenging three of her wire fraud convictions and
all of his convictions, respectively.
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II. Standard of Review
“We review both a challenge to the sufficiency of the evidence and the
denial of a Rule 29 motion for judgment of acquittal de novo.” United States v.
Gamory, 635 F.3d 480, 497 (11th Cir. 2011). In doing so, “[w]e view the evidence
in the light most favorable to the government, making all reasonable inferences and
credibility choices in the government’s favor, and then “determine whether a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
Id. (quotation omitted). We will not “disturb the denial of a Rule 29 motion so
long as a reasonable trier of fact could find guilt beyond a reasonable doubt.”
United States v. Chafin, 808 F.3d 1263, 1268 (11th Cir. 2015).
III. Discussion
Both defendants appeal from the district court’s denial of their respective
motions for judgment of acquittal. Specifically, both defendants argue that the
government failed to present sufficient evidence to prove that they had the intent to
defraud. Gow contends that the government failed to prove that she had the intent
to cause financial injury or loss to Lee County or to Haynes as an investor. In her
view, the evidence presented at trial established that she did everything in her
power to ensure the success at VR Labs and that Haynes was a sophisticated
investor who had been advised of the risks of investing in VR Labs. Similarly,
Williams maintains that the evidence presented at trial demonstrated that he acted
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in good faith to ensure the success of VR Labs and that he lacked any intent to
defraud.
To prove that a defendant committed wire fraud, the government must show
that the defendant: “(1) participated in a scheme or artifice to defraud; (2) with the
intent to defraud; and (3) used, or caused the use of, interstate wire transmissions
for the purpose of executing the scheme or artifice to defraud.” United States v.
Machado, 886 F.3d 1070, 1082–83 (11th Cir. 2018). “A scheme to defraud
requires proof of a material misrepresentation, or the omission or concealment of a
material fact calculated to deceive another out of money or property.” United
States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). “Intent to defraud”
means “inten[t] to use deception to cause some injury”—meaning “to obtain, by
deceptive means, something to which the defendant is not entitled.” United States
v. Waters, 937 F.3d 1344, 1352 (11th Cir. 2019); Maxwell, 579 F.3d at 1301 (“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.’” (quoting United States v. Cooper, 132 F.3d 1400, 1405
(11th Cir. 1998))). Intent may be inferred “from the defendant’s conduct and
circumstantial evidence.” Machado, 886 F.3d at 1083. Circumstantial evidence of
fraudulent intent is sufficient because “[g]uilty knowledge can rarely be
established by direct evidence, especially in respect to fraud crimes which, by their
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very nature, often yield little in the way of direct proof.” United States v. Suba,
132 F.3d 662, 673 (11th Cir. 1998). Critically, “[p]unishment under the wire fraud
statute is not limited to successful schemes.” United States v. Ross, 131 F.3d 970,
986 (11th Cir. 1997). “The Government merely needs to show that the accused
intended to defraud his victim and that his or her communications were reasonably
calculated to deceive persons of ordinary prudence and comprehension.” Id.
(quotation omitted).
To prove that a defendant is guilty of conspiracy to commit wire fraud, the
government must show: “(1) a conspiracy to commit wire fraud; (2) knowledge of
the conspiracy; and (3) that [the defendant] knowingly and voluntarily joined the
conspiracy.” United States v. Feldman, 931 F.3d 1245, 1257 (11th Cir. 2019)
(alteration adopted). The government may prove a defendant’s participation in a
conspiracy to defraud by direct evidence or “infer[ence] from circumstantial
evidence,” Ross, 131 F.3d at 980, provided that the inferences are reasonable,
United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015). And, “[e]vidence that
a defendant personally profited [from a fraud] . . . may provide circumstantial
evidence of [the defendant’s] intent to participate in that fraud.” United States v.
Bradley, 644 F.3d 1213, 1239 (11th Cir. 2011) (quotation omitted).
Finally, because the jury is free to choose between reasonable conclusions to
be drawn from the evidence presented at trial, “[i]t is not necessary for the
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evidence to exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” United States v. Garcia,
447 F.3d 1327, 1334 (11th Cir. 2006) (quotation omitted). We must uphold the
denial of a motion for judgment of acquittal as “long as a reasonable trier of fact
could find guilt beyond a reasonable doubt.” Chafin, 808 F.3d at 1268.
A. Kay Gow’s Intent to Defraud Lee County
Kay Gow argues that the district court erred in denying her motion for
judgment of acquittal because the government failed to prove that she intended to
defraud Lee County. Her argument is unpersuasive.
The evidence presented at trial was sufficient to support her conviction. To
begin, in VR Labs’s application for grant funding, Kay Gow claimed that the
company was a “multinational business enterprise,” and that its office in Lee
County would be its “[i]nternational headquarters office.” But, at the time, VR
Labs had been incorporated for only three months, had no other offices (much less
any international offices), and had not yet sold any products.
Kay Gow’s application also claimed that VR Labs would invest almost $9
million in capital investments over three years. As a Lee County executive
explained at trial, the capital investment commitment from grant applicants was
designed to ensure that companies would have some “skin in the game.” But, at
the time Kay Gow submitted VR Labs’s application, VR Labs had no assets and no
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income to spend—VR Labs even required its subcontractors to obtain independent
funding for projects to get the company up and running.
In addition, Kay Gow admitted that she and her husband hired their friend
Williams to produce VR Labs’s bottling equipment even though he had no
experience in the bottling industry. Moreover, she admitted that she and her
husband knew that VR Labs could have saved a substantial amount by contracting
directly with a bottling manufacturer, rather than hiring Williams to act as a
middleman with APACKS. Kay Gow knew that Williams doubled the invoices he
received from APACKS and submitted his own inflated invoices to VR Labs. The
company’s financial situation notwithstanding, she accepted these inflated invoices
and then submitted them to Lee County for reimbursement.
Even though Kay Gow admitted that she knew that the grant funds could be
used only for “qualified capital investments,” as head of finances at VR Labs, she
also knew that Lee County grant funds were being used to pay for other non-
qualified costs, such as HerbalScience license fees and the Gows’ expense reports
and salaries. The grant funds that paid Kay Gow’s salary were, in turn, eventually
spent on lavish vacations, home mortgages, and leases on luxury vehicles.
Based on this and other evidence, a reasonable jury could have concluded
beyond a reasonable doubt that Kay Gow knowingly misrepresented the nature of
VR Labs in its grant application because the company had no international
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footprint or ability to make its own $9 million capital investment. A reasonable
jury could have also concluded that Kay Gow knowingly requested payment from
Lee County for funds to which VR Labs was not entitled under the terms of the
grant and used those funds to enrich herself and her husband. In short, a
reasonable jury could construe this evidence as “concealment of a material fact
calculated to deceive another out of money or property.” Maxwell, 579 F.3d at
1299. And, from the same evidence, a reasonable jury likewise could have
concluded beyond a reasonable doubt that Kay Gow conspired with her husband
and Williams to defraud Lee County. See Ross, 131 F.3d at 980; Bradley, 644
F.3d at 1239.
Kay Gow argues that there are innocuous explanations for her conduct, but
none of the explanations demonstrates that a reasonable jury could not have found
beyond a reasonable doubt that she intended to defraud Lee County. First, she
takes out of context a prosecutor’s isolated statement during trial that Lee County
“did not receive what it bargained for,” because it “never got the pilot plant, they
never got the jobs that were promised pursuant to the agreement.” Thus, she
contends that the government’s case against her rested on a breach of contract
theory, which cannot support a conviction for federal wire fraud. We disagree.
The government’s case was based on the evidence that we have summarized,
notwithstanding the prosecutor’s stray comment that may have roughly alluded to
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breach of contract principles. Moreover, the district court properly instructed the
jury that “[a] statement or representation is false or fraudulent if it is about a
material fact that the speaker knows is untrue, or makes with reckless indifference
to the truth, and makes with the intent to defraud.” See United States v. Clay, 832
F.3d 1259, 1311 (11th Cir. 2016). Accordingly, a reasonable jury could have
concluded that Kay Gow promised to create jobs to secure the grant award while
knowing—or being recklessly indifferent to the possibility—that VR Labs would
not be able to fulfill that promise.
Second, Kay Gow argues that Williams’s inflated bottling invoices were
defensible because Lee County approved the expenditures, Williams was providing
engineering services, and Williams’s bill included the cost of developing
proprietary software for the bottling equipment. But she points to no evidence
showing that Lee County knew that APACKS invoiced Williams for only half the
amount he then charged VR Labs. And a reasonable jury could have inferred that
Kay Gow knew none of these price justifications were true because Williams had
no experience with bottling equipment, and neither he nor his son knew anything
about developing the necessary software.
And third, Kay Gow contends that she did not intentionally misrepresent VR
Labs’s position in its application for grant funding because VR Labs intended to
become a multinational company, and her financial representations were
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“aspirational” and nothing more than mere “puffery.” While that may be one
interpretation of the evidence, it does not establish that a reasonable jury could not
have found that Kay Gow intentionally misled Lee County officials to secure the
award of grant funding.
In sum, a reasonable jury could have concluded beyond a reasonable doubt
that Kay Gow intended to defraud Lee County by making material
misrepresentations to obtain the grant funding. See Chafin, 808 F.3d at 1268.
Accordingly, the district court did not err in denying her motion for judgment of
acquittal on this issue. 4
B. Kay Gow’s Intent to Defraud Haynes 5
Next, Kay Gow argues that the district court erred in denying her motion for
judgment of acquittal because the government failed to prove that she intended to
defraud Haynes. We disagree.
4 We note that Kay Gow testified on her own behalf at trial and disclaimed any intent to defraud anyone. Of course, the jury was free to reject her testimony and conclude that she did in fact intend to defraud. See United States v. Hasner, 340 F.3d 1261, 1272 (11th Cir. 2003); United States v. Mejia, 82 F.3d 1032, 1038 (11th Cir. 1996) (“A proper inference the jury can make from disbelieved testimony is that the opposite of the testimony is true.”), abrogated on other grounds by Bloate v. United States, 559 U.S. 196, 203 n.5 (2010). 5 Although Kay Gow was not involved in the efforts to recruit Haynes, she “is liable for any act done by a co-conspirator in furtherance of the conspiracy.” United States v. Loyd, 743 F.2d 1555, 1561 (11th Cir. 1984). And, as discussed in subsection (A), a reasonable jury could have found that Kay Gow conspired with her husband and Williams to defraud Lee County. See Ross, 131 F.3d at 980; Bradley, 644 F.3d at 1239. 17 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 18 of 24
In addition to the previously mentioned evidence regarding Kay Gow’s
involvement in the conspiracy, at trial, the government introduced evidence
concerning VR Labs’s attempts to recruit investors. That evidence established
that, at the time that VR Labs was running out of grant funds from Lee County,
Robert Gow and Kottkamp began recruiting investors to keep VR Labs afloat.
Haynes was one of those potential investors. Haynes had experience working at a
biotechnology company and specialized in prescription pharmaceuticals. After
learning about VR Labs, he expressed interest in working for VR Labs because it
was based in an attractive retirement location and had the potential to expand into
pharmaceutical products. Eventually, in early September 2012, Robert Gow met
Haynes for lunch and told him that VR Labs might have a position available.
Robert Gow represented that VR Labs was moving “full steam ahead” with its
plans for product expansion and that the “company was starting to grow.” He also
represented that VR Labs was considering a merger with another company, and
that the potential value of the merger was approximately $375 million.
In fact, VR Labs was in dire straits. It had exhausted (or nearly exhausted)
the Lee County grant funds in May 2012. For example, VR Labs still owed its
bottling equipment manufacturer approximately $1.25 million and some of its
subcontractors were “on the verge of bankruptcy as a result of nonpayment” and
threatening to sue VR Labs. VR Labs was also falling behind on monthly rent for
18 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 19 of 24
its bottling facilities because it had no functioning bottling plant to generate
income. At one point in September 2012, VR Labs’s bank account contained less
than $4,000.
During their conversation, Haynes indicated that, before he signed any
employment contract, he wanted to see VR Labs’s financial statements. Robert
Gow refused to provide Haynes with any financial records, claiming that the
ongoing merger negotiations rendered the records confidential. [Id.] In
mid-September 2012, Gow offered a job to Haynes on the condition that he invest
$500,000. Gow then told Haynes that Kottkamp had invested $1 million in VR
Labs, which “was a big deal” to Haynes as he weighed the “pros and cons” of
investing a substantial amount of his own money. In truth, Kottkamp never
invested in VR Labs and, by the fall of 2012, VR Labs was not able to pay him his
$240,000 salary. Kottkamp resigned shortly thereafter.
Viewing the evidence in the light most favorable to the government, a
reasonable jury could have found beyond a reasonable doubt that Kay Gow
intended to defraud Haynes. The evidence demonstrated that VR Labs was in dire
need of cash to continue operating, which prompted it to raise capital from
investors. And, when dealing with potential investors—including Haynes—the
evidence established that Robert Gow misrepresented the company’s financial
condition by portraying it as a well-capitalized merger target, and falsely claiming
19 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 20 of 24
that Kottkamp had invested $1 million. Robert Gow then refused to disclose the
company’s financial statements. From this evidence, a reasonable jury easily could
have concluded that Robert Gow (and Kay Gow as a co-conspirator) materially
misrepresented VR Labs’s financial condition and prospects with the intent to
entice Haynes to invest $500,000. See Maxwell, 579 F.3d at 1299 (“A scheme to
defraud requires proof of a material misrepresentation, or the omission or
concealment of a material fact calculated to deceive another out of money or
property.”).
Kay Gow has two responses, but neither is persuasive. First, she contends
that Haynes was a sophisticated investor and that his employment agreement
advised him of the risks associated with investing in a start-up company in a
competitive market. But boilerplate language about the risks of investment cannot
displace specific misrepresentations about VR Lab’s financial condition. Only the
Gows knew the truth, and a reasonable jury could have concluded that Haynes
remained unaware that VR Labs was on the verge of collapse even after reviewing
the agreement. Regardless, “[p]unishment under the wire fraud statute is not
limited to successful schemes.” Ross, 131 F.3d at 986. The government need only
“show that the accused intended to defraud his victim and that his or her
communications were reasonably calculated to deceive persons of ordinary
20 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 21 of 24
prudence and comprehension.” Id. In short, Kay Gow’s culpability is independent
from any alleged risk assumed by Haynes.
Second, Kay Gow maintains that Haynes’s employment agreement
accurately listed the shares, shareholders, and the amount of capital the
shareholders had contributed, and that Kottkamp’s name and purported
contribution were conspicuously absent. She also notes that the agreement stated
that Haynes had the opportunity to ask questions about the condition of the
company and that he was satisfied by the answers to those questions. Thus, she
argues that Haynes could not have been misled. But this argument also misses the
point. “Punishment under the wire fraud statute is not limited to successful
schemes,” and the government need only “show that the accused intended to
defraud his victims and that his or her communications were reasonably calculated
to deceive persons of ordinary prudence and comprehension.” Ross, 131 F.3d at
986; Machado, 886 F.3d at 1082–83. A reasonable jury could have concluded that
the misrepresentations and omissions “were reasonably calculated to deceive
persons of ordinary prudence and comprehension.” Ross, 131 F.3d at 986.
At most, Kay Gow has shown that a jury could have interpreted the evidence
in a way that was favorable to her defense. But, as we explained, a reasonable jury
could have concluded beyond a reasonable doubt that she intended to defraud
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Haynes. Accordingly, the district court did not err in denying her motion for
judgment of acquittal on this issue. 6 See Chafin, 808 F.3d at 1268.
C. Williams’s Intent to Join the Conspiracy to Defraud
Finally, Williams argues that the district court erred in denying his motion
for judgment of acquittal because the government presented no evidence—direct or
circumstantial—showing he was a willing participant in a criminal scheme. We
disagree.
The government presented an array of circumstantial evidence against
Williams. Williams personally invested hundreds of thousands of dollars in VR
Labs. Thus, he had much to lose if VR Labs folded and, therefore, a motive to
ensure that VR Labs survived and he recovered his investment. As noted earlier,
he was hired to produce the company’s bottling line—despite having no experience
in that field. Williams, in turn, hired a subcontractor to produce the bottles and
bottling equipment and nearly doubled his own invoice to VR Labs, which Lee
County ultimately reimbursed. Then, when VR Labs paid Williams’s invoices
with county grant funds, he used a fictitious entity, “Hong Kong Associates,” to
6 Kay Gow also claims that Haynes was unsuccessful in a civil lawsuit that he brought against VR Labs. She suggests that, if Haynes could not succeed in a civil suit under a preponderance-of-the-evidence standard, then the government cannot prevail against her under the beyond-a-reasonable-doubt standard. The merits of Haynes’s civil lawsuit are not part of the record and are therefore not relevant to whether a reasonable jury could have convicted Kay Gow of wire fraud related to Haynes’s investment based on the evidence presented in this case.
22 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 23 of 24
transfer large sums of money back into VR Labs’s accounts. When FBI agents
questioned him about his practice of doubling the amount charged on invoices to
VR Labs, Williams claimed that he was a “farmer and a gambler” and farmers
double the price of everything. He also claimed that the inflated invoices were
meant to cover his son’s expenses in developing software for the new bottling
equipment. Yet in reality, his son had no experience in software development and
ultimately failed to produce it.
Viewing all this evidence in the light most favorable to the government, a
reasonable construction of the evidence allowed the jury to find the defendant
guilty beyond a reasonable doubt. In other words, a reasonable jury could infer
that Williams knew of the plan to defraud Lee County and intended to join the
conspiracy to do so.
At bottom, Williams responds that “the government did not provide or
present a sufficient degree, quantity, or quality of competent and reliable evidence
that would show or establish” that “Williams possessed even a general
understanding of the alleged fraud (if it even existed) or that . . . he willfully joined
any purported plan to defraud Lee County.” Considering all the evidence just
described, we are not persuaded. Although Williams might “disagree[]” with the
interpretation of the evidence, mere disagreement about the best way to read the
23 USCA11 Case: 19-12053 Date Filed: 09/16/2021 Page: 24 of 24
evidence presented at trial is insufficient to show that no reasonable jury could
have convicted him.
Accordingly, the district court did not err in denying Williams’s motion for
judgment of acquittal.
IV. Conclusion
For these reasons, we affirm the district court’s judgment.
AFFIRMED.