Case: 15-14081 Date Filed: 01/16/2018 Page: 1 of 25
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 15-14081 ________________________
D.C. Docket No. 3:14-cr-00073-MJG-JRK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MITCHELL HOLLAND, Defendant - Appellant.
________________________
No. 16-10039 ________________________
D.C. Docket No. 3:14-cr-00073-MJG-JRK-2
Plaintiff - Appellee, Case: 15-14081 Date Filed: 01/16/2018 Page: 2 of 25
WARREN ROSENFELD,
Defendant - Appellant.
Appeals from the United States District Court for the Middle District of Florida ________________________
(January 16, 2018)
Before MARCUS and NEWSOM, Circuit Judges, and MOORE, ∗ District Judge.
PER CURIAM:
Appellants Mitchell Holland and Warren Rosenfeld were convicted on
multiple counts of wire fraud and conspiracy to commit wire fraud. In these
consolidated appeals, they raise a total of eight issues in connection with their
convictions and sentences. Finding no reversible error, we affirm.
I
A. The offense conduct
In April 2014, a federal grand jury returned an indictment charging Holland
and Rosenfeld, along with two other defendants, with 17 counts related to a
longstanding wire-fraud scheme. Specifically, the indictment charged Holland
with one count of conspiracy to commit wire fraud in violation of 18 U.S.C. §§
∗ The Honorable William T. Moore Jr., United States District Judge for the Southern District of Georgia, sitting by designation. 2 Case: 15-14081 Date Filed: 01/16/2018 Page: 3 of 25
1349 and 1343 and eight counts of wire fraud in violation of 18 U.S.C. § 1343.
The indictment charged Rosenfeld with one count of conspiracy to commit wire
fraud and three counts of wire fraud.
More particularly, the indictment alleged as follows. Beginning around June
2009, Holland and Rosenfeld participated in a fraudulent scheme to “lease” fake
certificates of deposit (CDs) and “proof of funds” letters to borrowers unable to
obtain traditional forms of financing. Holland and Rosenfeld convinced their
clients that the leased CDs and proof-of-funds letters could be used to obtain loans
or other financing, either as collateral or otherwise. Once an agreement was
reached, Holland and Rosenfeld obtained fraudulent financial documents from
Unistate, a shell corporation purporting to be a financial institution headquartered
in New Zealand.
Each client paid an “arrangement fee” of between $150,000 and $622,500
for Holland and Rosenfeld to secure a leased financial instrument, which would be
held in the client’s name for 60 days. Theoretically, this initial arrangement fee
was to be kept in escrow for five days after provision of the leased instrument to
allow time for the client to receive a refund should the documents prove
unsatisfactory. In practice, though, Holland and Rosenfeld never waited the full
five-day period before requesting disbursement. The arrangement fee was divided
among the scheme’s participants. At the end of the 60-day period, the client could
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extend the lease for up to a year by paying another much larger fee, ostensibly with
funds obtained through use of the leased documents. 1 Not a single client ever paid
this second fee, likely because none were able to use the fake documents in any
way.
B. Pre-trial motions and notices
Before trial, the parties filed several motions and notices that are relevant to
this appeal.
First, the government filed a notice of intent to introduce Fed. R. Evid.
404(b) evidence regarding seven transactions not charged in the indictment,
including three that occurred prior to the period of the conspiracy alleged in the
indictment. Holland and Rosenfeld objected, arguing that the uncharged
transactions were not similar factually, that they would lead to guilt by association,
and that the risk of unfair prejudice outweighed the evidence’s probative value.
The government responded that the uncharged transactions were inextricably
intertwined with the charged conduct and were thus outside Rule 404(b)’s scope
altogether and, alternatively, that the transactions should be admitted under Rule
1 According to the indictment, Holland and Rosenfeld executed this scheme against individual victims in the following way: Dwight Jenkins received a fraudulent $10 million “CD and Proof of Funds Account” for a $150,000 arrangement fee; George Sayar received a $200 million “leased CD” for an initial fee of $622,500; Justin Nemec received a $4 million “leased CD” for an initial payment of $375,000; Brian Winum received a $100 million “leased CD” in exchange for an initial payment of $300,000; Ronald Sapp received a $100 million “leased CD” for an initial arrangement fee of $400,000; and Aurora Asset Management, LLC received a $100 million “leased CD” for an initial fee of $450,000. The victims were led to believe they could monetize the leased instruments, but were unable to do so. 4 Case: 15-14081 Date Filed: 01/16/2018 Page: 5 of 25
404(b) to establish intent, plan, knowledge, and absence of mistake. 2 The court
admitted the evidence on the ground that the transactions were inextricably
intertwined with the charged conduct.
Second, Holland and Rosenfeld designated James Bradley as an expert
witness and provided his expert report and curriculum vitae. The government
moved in limine to exclude Bradley’s testimony on the grounds that he did not
meet Fed. R. Evid. 702’s requirements for an expert and that he had
misrepresented his qualifications and credentials in his CV and report. The
government further claimed that Bradley’s expert report amounted to nothing more
than an opinion on the defendants’ mens rea, rather than proper expert opinion.
Rosenfeld responded by “retract[ing Bradley’s] expert designation” and noting his
intent to call Bradley as a fact witness instead.
Finally, the government noted its intent to seek forfeiture totaling
$9,151,978 and asserted that if it were unable to obtain property traceable to the
crime, it would be entitled to substitute property. The government also filed a bill
2 The government’s trial brief summarized the additional deals as follows: Symtech International was to receive a $100,000,000 “sub account” for an initial deposit of $649,965; Magmetal Industries received a $10,000,000 “account” for an initial deposit of $475,000; Superstition Funding received a $3,000,000 “verification of deposit” for an initial deposit of $82,500; Dwight Jenkins (second deal) received a $20,000,000 “proof of funds account” for a $600,000 arrangement fee; Bentley Equities, LLC received a $25,000,000 “account” for a $300,000 arrangement fee; Progressive Funding Solutions, LLC received a $50,000,000 “leased CD” for a $450,000 arrangement fee; and Promotora Inmobiliaria received a $100,000,000 “leased stand by letter of credit” for a $5,507,500 arrangement fee. 5 Case: 15-14081 Date Filed: 01/16/2018 Page: 6 of 25
of particulars notifying Rosenfeld that it would seek forfeiture of his house upon
conviction.
C. The trial and verdicts
At trial, the district court ruled that it would not allow Bradley to testify as
an expert witness. The court concluded that the opinions contained in Bradley’s
expert report amounted to nothing more than his opinion that “the jury should find
these folks not guilty,” which the court found inadmissible. The district court did,
however, allow the defense to proffer Bradley’s testimony outside the jury’s
presence to determine his acceptability as a lay witness. During the proffer,
Bradley stated that he knew both Holland and Rosenfeld but had not participated in
any of the transactions at issue in this case. Rosenfeld’s attorney argued that
Bradley’s experience provided him the personal knowledge required for admission
as a lay witness, stating as follows: “The purpose for Mr. Bradley is … to explain
how the DTC operates because he actually knows. … He’s not rendering an
opinion if he likes the way it operates. He’s not rendering an opinion if people
enjoy the way it operates. He’s going to explain how it actually operates.”3 The
district court halted Bradley’s initial proffer due to the jury’s arrival. When the
proceedings resumed, Rosenfeld’s attorney decided to make the proffer himself
rather than have Bradley continue to testify. During this proffer, Rosenfeld’s
3 The DTC referenced by Rosenfeld’s attorney is the Depository Trust Company, the organization that clears financial transactions occurring in the United States. 6 Case: 15-14081 Date Filed: 01/16/2018 Page: 7 of 25
counsel contended that Bradley could provide context by speaking about his
personal experience in investment banking and in the “nontraditional side of
investment, funding, and banking,” where Bradley would testify leased instruments
are indeed used. The district court ruled that Bradley’s proffered testimony was
“not fact testimony,” but rather “opinion testimony,” rendering Bradley
inadmissible as a lay witness. For purposes of the record, Holland’s attorney then
stated Holland would “adopt” Rosenfeld’s positions and “submit[ted] that we
would be able to call Bradley as a fact witness or an expert witness.” The district
court restated its ruling that Bradley would not be allowed to testify.
The government proffered William Kerr as an expert witness on the types of
transactions typically occurring in the financial world. Rosenfeld renewed the
objection that he had made pre-trial, arguing that Kerr was unqualified to testify as
an expert on “non-traditional financial transactions”—a euphemism for the
transactions at issue here—and that Kerr’s testimony would unreliably contradict
the testimony of other witnesses. Holland’s attorney joined Rosenfeld’s objection.
The district court admitted Kerr’s testimony over Holland’s and Rosenfeld’s
objections.
Rosenfeld testified in his own defense. During his testimony, he made
statements that became the basis of an obstruction-of-justice-based sentence
enhancement, discussed below. Among other things, during direct examination, he
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claimed he had been “contacted by a Secret Service agent that was looking for
expert witnesses.” On cross-examination, the government inquired as to the nature
of Rosenfeld’s role as an expert witness. When asked where he testified as an
expert, Rosenfeld could not clearly recall, but said he believed it was in the Eastern
District of New York in Queens. When pressed further on the matter, Rosenfeld
conceded that he did not testify in court, was not even in New York when the trial
in question happened, and claimed that he only used the term “expert” on direct
because he was answering questions about his industry in an interview with a
federal prosecutor.
At the close of the government’s case in chief, Holland and Rosenfeld each
moved for judgment of acquittal, but their motions were denied. The motions were
renewed before the case was submitted to the jury, and again denied.
After a 12-day trial, a jury convicted Holland and Rosenfeld on all counts.
The district court then held a forfeiture hearing, at which the government traced a
$273,666.73 payment Rosenfeld made to pay off the lien on his house to the
fraudulent transactions for which he had just been convicted, and argued that the
house should therefore be subject to forfeiture. The jury returned a special verdict
finding Rosenfeld’s house was property traceable to all four offenses of conviction.
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D. The sentences
Following conviction, both the government and the presentence
investigation report calculated the loss attributable to Rosenfeld at $10,523,978,
and the government sought restitution in that amount. The government also sought
a forfeiture money judgment of $9,151,978. Rosenfeld objected to the inclusion of
transactions not included in the indictment and argued that the “provable loss”
attributable to him was only $2,297,500. The court held a sentencing hearing at
which extensive arguments were made regarding the inclusion of each transaction
in the loss calculation. Following the hearing, the district court issued written
findings regarding loss amount and restitution, applying the full loss amounts for
victims named in the indictment and adding loss amounts for two other victims not
named in the indictment, settling on a total restitution amount of $3,812,077. The
court also found Holland and Rosenfeld jointly and severally liable for a forfeiture
money judgment in the same amount and entered a preliminary order of forfeiture
for Rosenfeld’s house based on the jury’s special verdict. Rosenfeld filed a motion
to stay forfeiture of his house pending final sentencing and expected appeal, which
the court later granted.
Among other enhancements, Rosenfeld’s presentence investigation report
added a two-level increase for obstruction of justice based on Rosenfeld’s
misleading trial testimony that he had served as an expert for the government.
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Rosenfeld asserted that his testimony was made in good faith, arguing that he
never used the word “testify” on direct examination and had only answered the
government’s questions on cross. The government argued that Rosenfeld
deliberately attempted to deceive the jury into believing he had testified as an
expert witness for the government, and the district court agreed. Rosenfeld’s
resulting guidelines range was 87-108 months. He was ultimately sentenced to 60
months imprisonment followed by three years of supervised release in addition to
the $3,812,077 restitution amount, the forfeiture money judgment in the same
amount, and the forfeiture of his house. Holland, jointly and severally liable with
Rosenfeld for the restitution amount and the forfeiture money judgment, was
sentenced to 48 months imprisonment followed by three years supervised release.
This appeal followed.
II
As previously explained, Holland and Rosenfeld present eight issues arising
from proceedings in the district court. First, Holland argues that there was
insufficient evidence to show that he acted with the requisite intent to sustain the
jury’s verdict. Second, Holland and Rosenfeld contend the district court abused its
discretion by admitting evidence of uncharged fraudulent transactions. Third,
Holland and Rosenfeld assert that the district court abused its discretion by
allowing the government’s expert to testify. Fourth, Holland and Rosenfeld argue
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that the court abused its discretion by refusing to allow their “key” witness to
testify as either an expert or lay witness. Fifth, Rosenfeld contends that the district
court improperly calculated the forfeiture amount applicable to him. Sixth,
Rosenfeld asserts that the district court erred by not limiting the government’s
interest in his home to the mortgage payment shown to be tainted by the proceeds
of the fraud. Seventh, Rosenfeld argues that the imposition of both a money
judgment and the forfeiture of his home violates the Excessive Fines Clause.
Finally, Rosenfeld contends that the court erroneously imposed a two-level
enhancement to his sentence for obstruction of justice in connection with his
misleading testimony.
We address each issue in turn.
A. The government produced sufficient evidence for a jury to conclude Holland acted with the requisite intent We “review de novo a district court’s denial of judgment of acquittal on
sufficiency of evidence grounds … consider[ing] the evidence in the light most
favorable to the government, drawing all reasonable inferences and credibility
choices in the government’s favor.” United States v. Rodriguez, 732 F.3d 1299,
1303 (11th Cir. 2013) (internal citation omitted). We will not overturn a jury’s
verdict if any reasonable construction of the evidence would have allowed the jury
to find the defendant guilty beyond a reasonable doubt. Id. The government may
rely on circumstantial evidence to prove intent, but a conviction based on
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circumstantial evidence “must be supported by reasonable inferences, not mere
speculation.” Id.
“[I]n order to support a conviction for wire fraud, the evidence at trial must
show that a defendant (1) intentionally participated in a scheme or artifice to
defraud another of money or property, and (2) used or caused the use of wires for
the purpose of executing the scheme or artifice.” Id. “Similarly, in order to sustain
a conviction for conspiracy to commit wire fraud, the government must prove that
the defendant knew of and willfully joined in the unlawful scheme to defraud.” Id.
(internal quotation omitted). Thus, in order to support Holland’s convictions, the
government must prove Holland acted with the intent to defraud. See United
States v. Bradley, 644 F.3d 1213, 1239 (11th Cir. 2011). In our Circuit, however,
“[a] jury may infer an intent to defraud from the defendant’s conduct,” United
States v. Maxwell, 579 F.3d 1282, 1301 (11th Cir. 2009), and the fact that Holland
personally profited from the fraud “may provide circumstantial evidence of [his]
intent to participate in that fraud,” United States v. Naranjo, 634 F.3d 1198, 1207
(11th Cir. 2011).
The government produced more than sufficient evidence that Holland acted
with intent to defraud. The “financial documents” that Holland provided his
clients contained several obvious signs that they were fake. Each of the CDs
leased between 2008 and 2010 purported to issue from “Chase Manhattan Bank
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British West Indies”—a bank that has not existed at all since 2000 and, even when
it did exist, never had a branch in the British West Indies. Identifying information
on the screenshots of the leased instruments sent to clients as proof of the funds’
existence did not follow proper clearinghouse format. In addition to providing the
obviously fake instruments to his clientele, Holland consistently told his clients
that the leased instruments could be used as collateral for loans, even though he
knew that none of his customers had been able to use a leased instrument in any
way. When one client complained about his inability to confirm a “blocked funds”
letter from Citibank El Salvador, Holland told him the account had been closed
because someone had tried to withdraw money from the account—a statement that
could not possibly have been true since the account was a fake. Finally, Holland
personally profited from the fraud, which the jury was free to consider as
circumstantial evidence that he intended to participate. In short, there was more
than enough evidence that Holland intended to participate in the fraud as charged.
The district court correctly denied his motion for judgment of acquittal.
B. The district court did not abuse its discretion in admitting evidence of uncharged similar conduct This Court reviews a district court’s decision to admit evidence of uncharged
offenses for abuse of discretion. United States v. Ford, 784 F.3d 1386, 1392 (11th
Cir. 2015). “Determinations regarding the admissibility of evidence rest largely
with the sound discretion of the trial court and will not be disturbed on appeal
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absent a clear showing of abuse of discretion.” United States v. Muscatell, 42 F.3d
627, 630 (11th Cir. 1995).
This Court “repeatedly has held that evidence of uncharged conduct that is
part of the same scheme or series of transactions and uses the same modus
operandi as the charged offenses is admissible as intrinsic evidence outside the
scope of Rule 404(b).” Ford, 784 F.3d at 1394. “[E]vidence of such criminal
conduct falls outside the scope of Rule 404(b), and thus is independently
admissible, if it is (1) an uncharged offense which arose out of the same transaction
or series of transactions as the charged offense[s], (2) necessary to complete the
story of the crime, or (3) inextricably intertwined with the evidence regarding the
charged offense[s].” Id. at 1393 (internal quotation omitted).
Separately, under Rule 404(b), evidence of uncharged conduct is admissible
to prove “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). In this Circuit,
for evidence to be admissible under Rule 404(b), “(1) it must be relevant to an
issue other than defendant’s character; (2) there must be sufficient proof to enable
a jury to find by a preponderance of the evidence that the defendant committed the
act(s) in question; and (3) the probative value of the evidence cannot be
substantially outweighed by undue prejudice, and the evidence must satisfy Rule
403.” Ford, 784 F.3d at 1393.
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The district court did not abuse its discretion in determining that the
uncharged-transactions evidence was “inextricably intertwined” with the charged
offenses and represented portions of an overall fraudulent scheme. The charged
offenses were not isolated acts, but rather parts of a series of transactions involving
Holland and Rosenfeld acting in the same roles (although with a new supplier of
fraudulent documents) and employing the same modus operandi. See Muscatell,
42 F.3d at 630-31 (evidence of related acts admissible even though occurring prior
or subsequent to charged offenses).
Alternatively, the evidence was admissible under Rule 404(b) as proof of
Holland’s and Rosenfeld’s intent with regard to the charged transactions. First,
intent is material in a wire fraud case when a defendant pleads not guilty. See
United States v. Barrington, 648 F.3d 1178, 1186 (11th Cir. 2011). Second, the
government produced evidence that Holland and Rosenfeld participated in each
transaction and that each document was fraudulent. It was therefore reasonable for
the jury to conclude Holland and Rosenfeld committed the acts admitted. As to the
third prong, “[a] similarity between the other act and a charged offense will make
the other offense highly probative with regard to a defendant’s intent in the
charged offense.” United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005).
The similarities between Holland’s and Rosenfeld’s earlier acts and the charged
offenses are obvious—particularly in that each involved passing on useless fake
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financial documents in return for a large “initial deposit.” The district court was
therefore within its discretion to admit the evidence under either theory, and we
will not disturb its decision.
C. The district court did not abuse its discretion in admitting William Kerr’s expert testimony We review a district court’s decision to admit or exclude an expert for abuse
of discretion. United States v. Azmat, 805 F.3d 1018, 1041 (11th Cir. 2015). “We
have explained that district courts must analyze three factors in determining the
admissibility of expert testimony under Rule 702: the expert’s qualifications, the
reliability of the testimony, and the extent to which the testimony will be helpful to
the trier of fact.” Id. (citing United States v. Frazier, 387 F.3d 1244, 1260 (11th
Cir. 2004). “While scientific training or education may provide possible means to
qualify, experience in a field may offer another path to expert status.” Frazier, 387
F.3d at 1260-61.
The district court did not abuse its discretion by admitting Kerr as an expert
witness. Kerr worked for 39 years in the Office of the Comptroller of Currency,
including 12 years in the Office’s offshore banking and fraud section. Since 2007,
he has worked as a banking and financial-fraud consultant, and has been qualified
as an expert witness in federal court approximately 70 times on related issues. His
experience more than qualified him to speak on the matters at hand. Frazier, 387
F.3d at 1261. Furthermore, the fact that Kerr’s testimony contradicted that of other
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witnesses in no way disqualifies him as an expert. These contradictions affect only
the credibility of Kerr’s testimony, not its admissibility. See United States v.
Pearson, 791 F.2d 867, 871 (11th Cir. 1986). The jury was free to weigh Kerr’s
credibility as it saw fit. The district court therefore did not abuse its discretion in
admitting Kerr’s expert testimony.
D. The district court did not abuse its discretion by excluding the testimony of James Bradley As just explained, we review a district court’s decision to admit or exclude
an expert’s testimony only for abuse of discretion. Azmat, 805 F.3d at 1041.
“[T]he deference that is the hallmark of abuse-of-discretion review, requires that
we not reverse an evidentiary decision of a district court unless the ruling is
manifestly erroneous.” Frazier, 387 F.3d at 1258 (internal citation and quotation
omitted). “Proffered expert testimony generally will not help the trier of fact
when it offers nothing more than what lawyers for the parties can argue in closing
arguments.” Id. at 1262-63. Here, the court ruled that Bradley’s testimony would
not be helpful to the jury because the opinions contained within his report merely
stated Bradley’s beliefs regarding Holland’s and Rosenfeld’s guilt. An
independent reading of Bradley’s report does not indicate the district court erred,
let alone manifestly so. We therefore find no basis to reverse the district court’s
decision.
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Nor did the court abuse its discretion by refusing to admit Bradley as a lay
witness. Rosenfeld attempts to circumvent Bradley’s lack of personal knowledge
related to the specific facts of this case by claiming that Bradley would have
testified only to facts of which he has personal knowledge gained from his
experience in the field of alternative finance. We think, however, that the
testimony proffered by both Bradley’s and Rosenfeld’s counsel is rightly viewed as
expert testimony beyond the scope allowed a lay witness. As Rosenfeld himself
notes, the distinction between a lay and expert witness is that “lay testimony results
from a process of reasoning familiar in everyday life, while expert testimony
results from a process of reasoning which can be mastered only by specialists in
the field.” Fed. R. Evid. 701 Advisory Committee’s Note-2000 Amendment. It is
true, of course, that a lay witness who has personally used a particular financial
instrument could be permitted to testify that such an instrument exists. But
Holland and Rosenfeld sought to elicit testimony from Bradley going far beyond
such a basic assertion. Rather than simply recounting his own use of “leased”
CDs, Bradley’s proffered testimony focused on how banks and other lending
institutions may view such instruments. Rosenfeld wanted Bradley to testify as to
how the DTC operates, and how the financial instruments at issue here could be
used within the DTC network. Such testimony clearly has its genesis in “a process
of reasoning which can be mastered only by specialists in a field” and is therefore
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best reserved for a properly qualified expert witness. At a minimum, the district
court did not abuse its discretion in so concluding.
E. The district court did not err in calculating the forfeiture money judgment against Rosenfeld Rosenfeld argues that “the district court erred by ordering the forfeiture of
funds related to uncharged conduct and by failing to make findings as to what
proceeds were received by Rosenfeld or [his] co-conspirators.” Br. of Rosenfeld at
42. We review the district court’s legal conclusions regarding forfeiture de novo
and its findings of fact for clear error. United States v. Hoffman-Vaile, 568 F.3d
1335, 1340 (11th Cir. 2009).
The district court did not err by ordering Rosenfeld to forfeit funds linked to
uncharged conduct. When a defendant is convicted of a criminal offense for which
civil forfeiture is authorized, the court shall “order the forfeiture of … property as
part of the sentence in the criminal case.” 28 U.S.C. § 2461(c). The civil
forfeiture statute authorizes forfeiture of “[a]ny property, real or personal, which
constitutes or is derived from proceeds traceable to a violation of … any offense
constituting ‘specified unlawful activity’ (as defined in section 1956(c)(7) of this
title), or a conspiracy to commit such offense.” 18 U.S.C § 981(a)(1)(C). Section
1956’s definition of “specified unlawful activity” includes wire fraud. 18 U.S.C. §
1956(c)(7)(A) (including within the definition of “specified unlawful activity” any
act constituting an offense listed in § 1961(1), which includes wire fraud).
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The elements of forfeiture must be proven by a preponderance of the
evidence. United States v. Hasson, 333 F.3d 1264, 1277 (11th Cir. 2003); see also
United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997) (district court was
free to consider acquitted conduct at sentencing as long as government proved
acquitted conduct by preponderance of the evidence). Rosenfeld’s argument that
none of the uncharged conduct was proven beyond a reasonable doubt, therefore, is
beside the point. In addition, we have previously held that a jury may consider
both acquitted and uncharged conduct when determining a forfeiture amount.
Hasson, 333 F.3d at 1279. In Hasson, the defendant was convicted of wire fraud
and conspiracy to launder the proceeds of mail and wire fraud, but was acquitted
on mail fraud charges. Id. at 1279-80. The court nonetheless allowed the jury to
consider evidence of the acquitted mail-fraud conduct, as well as uncharged
conduct, when determining which properties would be forfeitable under the
criminal forfeiture statute. Id. at 1277-79 (“The jury was free to … consider
evidence of … wire frauds adduced by the government in support of the money
laundering count, though not charged as separate substantive counts.”). Though
Hasson involved the criminal forfeiture statute rather than the civil, we see no
reason the same logic would be in applicable here.
Although he does so now, Rosenfeld did not previously object to the district
court’s forfeiture calculations based on a supposed failure to make findings about
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possession of proceeds. We therefore review only for plain error. United States v.
Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015). “To demonstrate plain error, the
defendant must show that there is (1) error, (2) that is plain, (3) that affects
substantial rights, and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotations omitted).
Where there is no precedent from the Supreme Court or this Court directly
resolving an issue, there can be no plain error where the text of a statute or rule
does not explicitly resolve it. United States v. Lejarde-Rada, 319 F.3d 1288, 1291
(11th Cir. 2003). The statutes at issue in this case, 18 U.S.C. §§ 981(a)(1)(C) and
2461(c), do not explicitly require the district court issue findings regarding
possession of proceeds, nor does a published case from this Court or the United
States Supreme Court. Accordingly, we find no plain error.
F. The district court did not plainly err by failing to limit the government’s interest in Rosenfeld’s house Rosenfeld failed to object to the forfeiture of his entire interest in his house.
Therefore, again, we review only for plain error. Sosa, 777 F.3d at 1294.
Rosenfeld argues that only the amount he wired to pay off his mortgage in
December 2009 should have been subject to forfeiture because it was the only
payment on the house the government showed was made with tainted funds. The
government does not fundamentally dispute Rosenfeld’s contention, but it
nonetheless argues that he is not entitled to relief on plain-error review, and further
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contends that any error is harmless because it may simply substitute the remainder
of the interest in the home to satisfy the money judgment entered against
Rosenfeld.
We find no case law directly addressing this particular issue before us, and
we do not believe that the statute clearly and unambiguously resolves the question.
Because there is no binding precedent directly on point, we save for another day
the question whether the government’s interest should have been limited to the
amount traceable to the proceeds of the fraud. We hold only that the district court
did not plainly err in this instance.
G. The district court’s forfeiture order does not violate the Excessive Fines Clause
Rosenfeld contends that allowing dual forfeitures, in this instance the
forfeiture money judgment and the forfeiture of his home, violates the Eighth
Amendment’s Excessive Fines Clause and constitutes impermissible double-
counting.
Rosenfeld did not object to the forfeiture of his house in addition to the
money judgment. Accordingly, we review only for plain error. Sosa, 777 F.3d at
1294. A forfeiture order imposed at end of a criminal proceeding due to a
conviction constitutes a fine subject to the Excessive Fines Clause. United States
v. Seher, 562 F.3d 1344, 1371 (11th Cir. 2009). But a forfeiture order constitutes
22 Case: 15-14081 Date Filed: 01/16/2018 Page: 23 of 25
an excessive fine only “if it is grossly disproportional to the gravity of defendant’s
offense.” Id.
Double-counting alone does not render a fine excessive. See United States
v. Sperrazza, 804 F.3d 1113, 1128 (11th Cir. 2015). In addition, we have
previously held it permissible for a district court to order forfeiture of specific
property even when there was a separate money judgment. See United States v.
Chaplin’s Inc., 646 F.3d 846, 854-55 (11th Cir. 2011). Although Rosenfeld’s total
fine exceeds the statutory maximum for his offense by 431%, such an increase
does not on its own render a fine “grossly disproportionate” in violation of the
Excessive Fines Clause. Cf. Chaplin’s Inc., 646 F.3d at 854-55 (fine exceeding
statutory maximum by 33.3% and guideline maximum by 53.8% not excessive);
see also United States v. Castello, 611 F.3d 116 (2nd Cir. 2010) (4,805.17%
increase not excessive). Because no binding precedent made it clear that an
increase of 431% over the statutory maximum renders a fine excessive, we are
constrained to hold that the district court did not plainly err.
H. The district court did not err by imposing a sentence enhancement for obstruction of justice when calculating Rosenfeld’s Sentencing Guidelines range When reviewing a district court’s imposition of an enhancement for
obstruction of justice this Court reviews factual findings for clear error and
application of the findings to the sentencing guidelines de novo. United States v.
23 Case: 15-14081 Date Filed: 01/16/2018 Page: 24 of 25
Perkins, 787 F.3d 1329, 1341 (11th Cir. 2015). We do not disturb factual findings
under the clear-error standard unless we are left with a definite and firm conviction
that a mistake has been made. United States v. Rothenberg, 610 F.3d 621, 624
(11th Cir. 2010).
A two-level sentence enhancement for obstruction of justice is appropriate
when “the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice with respect to the investigation, prosecution,
or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. Perjury is
an example of obstructive conduct. U.S.S.G. § 3C1.1 cmt. n.4(B).
This Court requires a district court applying an obstruction-of-justice
enhancement to explain what the defendant did, why that conduct warranted the
enhancement, and how that conduct actually hindered the investigation or
prosecution of the offense. United States v. Alpert, 28 F.3d 1104, 1107-08 (11th
Cir. 1994) (en banc). Here, the district court issued written findings on the
enhancement noting that both it and the jury were misled by Rosenfeld’s
testimony. We give special deference to the district court for these types of
decisions. See United States v. Williams, 340 F.3d 1231, 1240 (11th Cir. 2003)
(“An appellate court is not in a position to assess a defendant’s demeanor, apparent
sincerity, intonation, expression, gesticulations, and a wide range of other
24 Case: 15-14081 Date Filed: 01/16/2018 Page: 25 of 25
considerations that are pertinent in determining whether he has perjured himself.”).
We find no basis on which to reverse the district court here.
III
Having found no reversible error, we AFFIRM the district court in all
respects.