United States v. Perl

492 F. App'x 37
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 11, 2012
DocketNos. 11-11840, 11-11842, 11-11974
StatusPublished
Cited by2 cases

This text of 492 F. App'x 37 (United States v. Perl) 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. Perl, 492 F. App'x 37 (11th Cir. 2012).

Opinion

PER CURIAM:

Andrew Levinson, Alan Perl, and Edward Perl (collectively “Appellants”) appeal their respective convictions. Alan Perl also challenges the district court’s calculation of his sentencing guideline range. After a jury trial, Levinson was convicted of one count of conspiracy to commit wire fraud, thirteen counts of wire fraud, and three counts of mail fraud. Alan Perl was convicted of seven counts of wire fraud. Edward Perl was convicted of eight counts of wire fraud.1 After review of the record and with the benefit of oral argument, we affirm.

I. BACKGROUND

Levinson was the owner, operator, and salesman for Creative Concepts of America Inc. (“Creative Concepts”), a Florida corporation with its principal place of business in Fort Lauderdale. Throughout the entire business operation, Levinson used the name “Andrew Kennedy” with everyone outside the office. The company offered a business opportunity that included selling Red Bull energy drink vending “packages” to customers. These packages included the machines, Red Bull energy drinks, a warranty, and customer service. Between June 2005 and June 2006, Creative Concepts sold more than 900 of these business opportunities with each package costing roughly $4,000 per machine.2

Creative Concepts mainly attracted individuals through its website and through sales brochures. A prospective buyer would call a telephone number and speak with an employee known as a “fronter.” Fronters answered questions and made arrangements to send the potential customer additional sales material. They were paid based on the number of machines they sold.

After reviewing this information, customers who called back would speak with a “closer” who would try and finalize the [39]*39deal. Levinson trained and supervised both the fronters and the closers. Often, prospective buyers were given the names of references and were told that these were individuals who had previously purchased from Creative Concepts. Levinson testified that,3 although he was not directly in charge of references, he knew that the company was giving out references and he knew who they were.

Here is where Edward and Alan Perl become involved. Edward Perl and Alan Perl are brothers and separately acted as references for Creative Concepts. Each used a false name while acting as a reference: Edward Perl was “Eddie Marx” and Alan Perl was “Alan Peters.” Seven witnesses testified at trial that they had spoken with both Edward Perl and Alan Perl as references and had purchased packages from Creative Concepts.4 Three of these witnesses — Jeffrey Bullinger, John Kendall, and Chris Bernal — took notes that were admitted into evidence recounting their conversations with Edward Perl, Alan Perl, and Guillott (acting under their false names). These notes indicate that each reference misrepresented the amount of machines that they owned and the amount of Red Bull drinks that were sold from these machines.

II. DISCUSSION

Appellants cite numerous errors they believe the district court committed. We address each in turn.

This Court reviews evidentiary rulings for abuse of discretion. United States v. Brown, 415 F.3d 1257, 1265 (11th Cir.2005). Even if an evidentiary ruling constitutes an abuse of discretion, we will only reverse if the error was not harmless. United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). We review findings of fact that support a sentence enhancement for clear error. United States v. Ladson, 643 F.3d 1335, 1341 (11th Cir.2011). Lastly, we review challenges to the sufficiency of the evidence de novo, but resolve all reasonable inferences in favor of the jury’s verdict. United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir.2005).

A. Exhibits Up6 and H.6-T

Appellants argue that the district court erred when it excluded a tape recording of a conversation between a government investigator and two Creative Concepts sales employees as hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Appellants assert that the tape recording was not hearsay because it was not being offered for the truth of the matter asserted.

Appellants argue that the tape was not offered to prove the truth of the relevant matter, but rather only that it was being offered to show that the script (which had already been introduced into evidence as Exhibit 105) was not always used by Creative Concepts’ employees. We doubt there was a hearsay problem at all, but even if there were, we conclude that any error was harmless. See Hands, 184 F.3d at 1329. This tape would have established only that the script was not used in one of the very many calls Creative Concepts’ employees received and made. And there [40]*40was overwhelming evidence that the script was routinely used,5 that Levinson knew of that routine use, and that Edward Perl and Alan Perl themselves in fact made representations reflected in the script. See United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir.1995) (finding district courts error in admitting evidence was harmless in light of overwhelming evidence of defendant’s participation in drug conspiracy).

B. Exhibits 55, 87 and HI

The district court admitted three exhibits containing notes that witnesses took regarding their conversations with references under the present sense impression exception to the hearsay rule. Levinson challenges the admissibility of Exhibit 87, which is an email message received by witness John Kendall with handwritten notes taken while he was talking on the phone with references. Levinson also challenges the admissibility of Exhibit 55, which is handwritten notes by witness Chris Bernal. Lastly, Appellants challenge the admissibility of Exhibit 141, which is handwritten notes by witness Jeffrey Bullinger.

As stated above, hearsay is “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Hearsay is presumptively inadmissible barring a hearsay exception. Fed.R.Evid. 802. One exception to the hearsay rule is for a present sense impression. A present sense impression is a “statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Fed.R.Evid. 803(1); see also United States v. Cruz,

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492 F. App'x 37, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-perl-ca11-2012.