Filed: Sep. 10, 2008
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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 08-10786 SEPTEMBER 10, 2008 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 04-14003-TP-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RANDY SCOTT SYROP, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 10, 2008) Before TJOFLAT, DUBINA and BLACK, Circuit Judges. PER CURIAM: A
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 08-10786 SEPTEMBER 10, 2008 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 04-14003-TP-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RANDY SCOTT SYROP, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (September 10, 2008) Before TJOFLAT, DUBINA and BLACK, Circuit Judges. PER CURIAM: Ap..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10786
SEPTEMBER 10, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-14003-TP-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY SCOTT SYROP,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 10, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Randy Scott Syrop (“Syrop”) appeals the revocation of his
probation and the sentence imposed by the district court. We affirm.
I. BACKGROUND
In 2002, Syrop pleaded guilty to mail and wire fraud arising from a “pump
and dump” scheme in which he willfully filed false documents with the Securities
and Exchange Commission and disseminated false press releases in order to bolster
a chosen stock’s value. The scheme resulted in investor losses totaling almost
seven million dollars. Nonetheless, because of his substantial cooperation with the
Government, the district court sentenced Syrop only to five years’ probation. Two
conditions placed on Syrop were that he not “engag[e] in any employment related
directly or indirectly to investments or securities business opportunities,” DE 1 at
11, and that he “answer truthfully all inquiries by the probation officer,” id. at 10.
In November 2007, Syrop’s probation officer, Ron Manganiello, filed a notice with
the district court that Syrop had violated these conditions.
Syrop’s primary employment during his probation was with Broadvision
Group, an internet advertising company owned by John Grandinetti. Syrop
consistently maintained that his only function was web marketing—specifically,
selling banner advertisements. Manganiello received notice from several people
that Syrop engaged in other sales activities. First, Brett Friedman sent a letter
stating that he “met with Randy Syrop on approximately 5 occasions regarding
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investing in Tube Media corporation.” DE 16 at 2 (exh. 1). At one meeting,
according to Friedman, Syrop and Grandinetti presented a sales pitch for the stock,
“enticing [Friedman and two others] to buy stock in the company.” Id. Friedman
lost $160,000.
Id. Second, Daniel Drapacz wrote that Syrop called him offering
an investment opportunity in “Pyramid Records/TUBE Media Corporation.”
Id. at
3 (exh. 2). Syrop offered $50,000 in public shares, and $48,000 in restricted shares
held in Syrop’s mother’s name.
Id. Drapacz purchased the stock—the public
shares over the Internet, and the private shares from Syrop’s mother.
Id.
According to Drapacz, Syrop also solicited the 2004 sale of one-third of
Broadvision to Drapacz and his cousin, Harry Bruner, for $650,000. Id.; see also
id. at 12-18 (sales contract between Grandinetti and Bruner). When Bruner
became dissatisfied with Broadvision’s performance and threatened to contact the
authorities, Syrop threatened him.
Id. at 3 (exh. 2).
Based on these allegations, Manganiello filed a notice with the district court
that Syrop had violated his probation conditions by engaging in employment
related to investments and securities, and by lying to Manganiello by not telling
him about those activities. A magistrate judge held a Federal Rule of Criminal
Procedure 32.1(b)(1)(a) preliminary hearing in which Manganiello testified about
the Friedman and Drapacz statements. See generally DE 23 (Transcript of Pretrial
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Detention & Preliminary Hearing). Syrop presented rebuttal evidence, including a
sales contract between Bruner and Grandinetti, and a civil complaint by Bruner
against Grandinetti, which showed that Grandinetti, not Syrop, was responsible for
the Broadvision sale. DE 16 at 12-18 (contract between Grandinetti and Bruner;
Syrop not mentioned); id. at 5-11 (civil complaint by Bruner against Grandinetti;
Syrop not mentioned).
The magistrate judge noted “inconsistencies” in the evidence—specifically,
that the contract and civil complaint contradicted Drapacz’s allegation that Syrop
was involved in the Broadvision sale—but found “sufficient probable cause” to
conclude that Syrop violated his probation conditions by engaging in investment-
related employment and lying to his probation officer about that activity. DE 18 at
6. The magistrate judge referred the case to the district court for an evidentiary
hearing with live witnesses to resolve the inconsistency and adopt or reject the
recommendation. Id.
The district court held an evidentiary hearing in which similar evidence was
presented, with the exception that Drapacz and Friedman testified live, rather than
having their statements read. See generally DE 47 (Transcript of Probation
Violation Proceedings). Friedman testified that Syrop invited him to a shareholder
meeting for Tube Media Corporation.
Id. at 10. He understood Syrop to be a
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“consultant for the company.” Id. at 19. After sitting through the meeting, Syrop
took Friedman and another potential investor to a conference room, where Syrop
presented a sales pitch for investment in The Tube.
Id. at 10. Friedman testified
that he then decided to invest in The Tube by purchasing public shares on the
internet, and private shares from others through Syrop.
Id. at 11, 24. The Tube
failed, and Friedman lost over $160,000.
Id. at 10. On cross examination,
Friedman testified about the reasons for his continued investment in The Tube: Les
Garland, a principal in major television networks MTV and VH1, was involved;
The Tube had a television channel in millions of homes; and Friedman had made
substantial gains on an earlier smaller investment in The Tube.
Id. at 20-21.
Nevertheless, despite deciding that The Tube was a legitimate business based on
his own due diligence, Friedman felt in retrospect that it was a “pump and dump”
scheme, and Syrop sought him out to convince him to invest in the company.
Id. at
21, 23.
Drapacz also expounded his statement during live testimony. He testified
that Syrop was fully involved in the sale of Broadvision, and that Syrop was
Grandinetti’s partner in Broadvision but could not own anything “on paper”
because he was on probation. Id. at 34. Syrop’s attorney sought to discredit
Drapacz on cross-examination by noting that Drapacz is a convicted felon and that
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the Broadvision contract and subsequent civil suit belied his accusation that Syrop
sold Broadvision. Id. at 43-44, 48-49.
Syrop presented his own witnesses, including The Tube’s and Broadvision’s
lawyer, who testified that he had no indication that Syrop held any kind of
ownership interest in Broadvision, and Syrop did not have a consulting agreement
with The Tube. Id. at 77-78.
After hearing the testimony and argument, the district court found that Syrop
had violated his probation conditions. Id. at 99-100. The district court credited
both Friedman and Drapacz, noting that both testified to Syrop promoting
investment in The Tube while holding himself out as a consultant.
Id. at 100. The
district court found it irrelevant that the offerings were not a part of his formal
employment with Broadvision; “The idea was that he shouldn’t be involved in
offering securities to people because of his prior involvement in a pump and dump
scheme.”
Id. at 101. Syrop insisted that he “was just being polite in talking to
people about [The Tube],” and “at no time did [he] care if anybody bought the
stock or not.”
Id. at 102. Nonetheless, the district court found that Syrop engaged
in securities-related employment and lied to his probation officer about it. The
court calculated the Guidelines range as three to nine months’ imprisonment, but
sentenced Syrop to 24 months’ imprisonment because the probation violation
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repeated the original criminal acts. Id. at 105.
II. STANDARDS OF REVIEW
“[T]his court generally reviews a district court’s revocation of probation for
an abuse of discretion.” United States v. Mitsven, 452 F.3d 1264, 1265 (11th Cir.
2006). In reviewing a revocation proceeding, “[a] district court’s findings of fact
are binding on this court unless clearly erroneous.” United States v. Almand,
992
F.2d 316, 318 (11th Cir. 1993) (quoting United States v. Granderson,
969 F.2d
980, 982 (11th Cir.1992)).
We review the reasonableness of a sentence for an abuse of discretion. Gall
v. United States, 128 S. Ct. 586, 597 (2007).
III. ANALYSIS
The thrust of Syrop’s argument is that the condition against “engaging in
employment related to securities and investments” did not extend to Syrop’s giving
advice about investments to people or investing in securities himself.
According to Syrop, the Government must present direct evidence that he gained a
benefit from a transaction for that transaction to constitute “engaging in
employment related to securities and investments.” Furthermore, Syrop argues that
because the advice he gave Friedman and the small role he played in the
Broadvision sale to Bruner were not “employment,” it was not a lie to tell his
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probation officer his only employment was selling banner advertisements.
We reject Syrop’s arguments.1 “In a probation revocation proceeding, all
that is required is that the evidence reasonably satisfy the judge that the conduct of
the probationer has not been as good as required by the conditions of probation;
evidence that would establish guilt beyond a reasonable doubt is not required.”
United States v. O’Quinn, 689 F.2d 1359, 1361 (11th Cir. 1982) (quoting United
States v. Rice,
671 F.2d 455, 458 (11th Cir. 1982)). We hold that the district court
could easily conclude from the evidence presented that Syrop engaged in
employment related to securities and investments at least twice. First, the district
court could reasonably conclude from Drapacz’s testimony that Syrop was a
shadow partner in Broadvision, directly involved in the sale that, on paper, was
between Grandinetti and Bruner only. Second, the district court could reasonably
infer that Syrop stood to gain from Friedman’s investment in The Tube, given that
Syrop held himself out as a consultant and actively promoted the stock. Moreover,
because the district court could conclude that Syrop was engaged in activities
beyond banner-advertising sales, the court could also reasonably conclude that
Syrop lied to his probation officer when he stated that his only employment was
1
Syrop also argues that it was error for the Government to fail to call Bruner to the stand
because the magistrate judge’s report and recommendation stated that “Friedman, Drapacz and
Bruner . . . need to be personally present at any final evidentiary hearing.” DE 18 at 6. We
reject this argument; if Syrop wanted Bruner to testify, he could have called Bruner to the stand.
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selling banner advertisements.
We also conclude that the two-year sentence was reasonable. To review a
sentence, an appellate court “must first ensure that the district court committed no
significant procedural error,” and “then consider the substantive reasonableness of
the sentence imposed under an abuse-of-discretion standard.” Gall, 128 S. Ct. at
597. Syrop first argues that the district court’s sentence was procedurally unsound
because it found that Syrop’s first conviction was for a pump-and-dump scheme,
when the conviction was only for causing false filings to be mailed. The relevant
conduct for sentencing purposes extends far beyond the specific crime of which the
defendant was convicted. See U.S.S.G. § 1B1.2 (“Relevant Conduct”). The
district court concluded from the Presentence Investigation Report that Syrop’s
relevant conduct included a pump-and-dump scheme; that finding was not clearly
erroneous. Moreover, we conclude that it was reasonable for the district court to
exceed the nine-month upper bound recommended by the Guidelines. Recidivist
conduct touches multiple 18 U.S.C. § 3553(a) sentencing factors: it affects“the
nature and circumstances of the offense and the history and characteristics of the
defendant”; it suggests a greater “seriousness of the offense”; and it shows a
greater need “to promote respect for the law,” “deter[] criminal conduct,” and “to
protect the public from further crimes of the defendant.” Therefore, a 24-month
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sentence was reasonable given the recidivist nature of Syrop’s probation violation.
IV. CONCLUSION
The district court did not abuse its discretion when it revoked Syrop’s
probation, and the 24-month sentence was reasonable.
AFFIRMED .
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