Case: 13-14846       Date Filed: 06/05/2015       Page: 1 of 36


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-14846
                               ________________________

                     D. C. Docket No. 8:13-cr-00207-SCB-TGW-1

UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,

                                             versus

FREDDIE WILSON,

                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                           _________________________

                                        (June 5, 2015)

Before ED CARNES, Chief Judge, COX, Circuit Judge, and ROYAL, * District
Judge.

ROYAL, District Judge:



*
 Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia,
sitting by designation.
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       Appellant Freddie Wilson appeals his convictions and sentence for converting

to his personal use United States Treasury checks issued as a result of fraudulently

filed federal income tax returns. At trial, Wilson claimed he was a legitimate check

casher and did not know the Treasury checks were fraudulent. The jury, however,

rejected Wilson’s defense and on July 10, 2013, convicted him on all fourteen counts

of his indictment: six counts of Theft of Government Funds, in violation of 18 U.S.C.

§ 641 (Counts 1-6); six counts of Aggravated Identity Theft, in violation of 18 U.S.C.

§ 1028A (Counts 7-12)1; one count of Conducting an Unlawful Monetary

Transaction, in violation of 18 U.S.C. § 1957 (Count 13); and one count of

Obstructing a Criminal Investigation, in violation of 18 U.S.C. § 1505 (Count 14).

The district court sentenced Mr. Wilson to serve a total of 102 months imprisonment.

       On appeal, Mr. Wilson challenges his convictions and sentence on three main

grounds: (1) the evidence was insufficient to support any of his convictions; (2) the

district court erred in admitting the following four key pieces of evidence: (a) the

testimony of Sherman Brown – a convicted felon and associate of Wilson; (b) tax

returns and refund checks related to uncharged conduct; (c) IRS Special Agent

Christian Daley’s testimony that all of the tax-refund checks Mr. Wilson deposited

resulted from fraudulent tax returns; and (d) certain text messages from Wilson’s
1
 Although the jury found Wilson guilty on all fourteen counts, the district court dismissed the
aggravated identity theft charge in Count 10 post-verdict because the corresponding theft of
government funds conviction in Count 4 was a misdemeanor.

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former attorney to an IRS agent relating to the Obstruction charge; and, finally, (3) the

district court erred at sentencing in calculating the amount of the loss and/or the

number of victims.

      After careful review, we find Wilson’s arguments unconvincing and for the

following reasons AFFIRM his convictions and sentence.

                                  BACKGROUND

      Freddie Wilson was the sole owner of Against All Odds Bail Bonds, Inc. in

Tampa, Florida, and had been operating as a bail bondsman since 2001. In 2012, Mr.

Wilson fatefully decided to expand into the check-cashing business.

      On June 27, 2012, Wilson completed a license application to legally operate as

a check casher in the State of Florida. On his application, Wilson verified that he

would comply with the federal Antimoney Laundering Program and implement

certain policies and procedures, including that he would verify customer information,

file reports, and create and maintain records. Wilson acknowledged that Florida law

required check cashers to keep copies of the fronts and backs of all checks, record all

fees charged to cash the checks, maintain a daily cash reconciliation summarizing all

cash received, and keep copies of valid identification and thumbprints affixed to

checks greater than $1,000. Wilson also acknowledged that Florida law required

check cashers to maintain a secure area for cashing checks with either bullet proof


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glass or security cameras.

      The license application also required Wilson to identify the financial

institution where he would be negotiating checks. Five days prior to completing his

application, Wilson opened a checking account at Hancock Bank and informed the

bank that he would be using the account for his check-cashing business. In the

application, however, Wilson identified another bank as the financial institution

where he would be negotiating checks. Nowhere on the license application did he

identify the Hancock Bank account.

      Although he did not disclose it to authorities, Wilson began vigorously using

the Hancock Bank account in his check-cashing business. In a span of only three

months—from June 22 through September 30, 2012—Wilson deposited more than

$336,000 into the account. Ninety-nine percent of the funds deposited were from 37

United States Treasury tax-refund checks totaling about $333,000; less than ten

checks were non-Treasury checks, which accounted for less than one percent of the

total deposits at Hancock Bank. Wilson was the only authorized signor on the

account and the only person who deposited the checks.

      The evidence at trial established Wilson’s Hancock Bank account activity was

not consistent with a legitimate check casher. The operations manager at Hancock

Bank testified that Wilson came into the bank and deposited checks or withdrew cash


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two to three times per week, sometimes making multiple deposits in a single day.

This activity struck her as unusual because business owners would typically make

deposits only once or twice a week.

      Particularly striking was the fact Wilson used the money in the Hancock Bank

account almost exclusively for personal expenses. The checks Wilson wrote from the

account included payments for his daughter’s orthodontist and day school, his utility

and insurance bills, Home Depot, Wal-Mart, a 2011 Camaro, and to Wilson himself

totaling $110,445, which accounted for about one-third of the total amount deposited.

The debit card transactions also showed that Wilson used the account for personal

expenses. The transactions included withdrawals from numerous ATMs and

payments to restaurants, gas stations, hotels, airlines, liquor stores, and the Seminole

Hard Rock Casino for $33,000. In a span of only three months, the amount of debit

card transactions totaled $127,511.73.

      Under Florida law, as a check casher, Wilson could lawfully charge no more

than five percent of the total amount of the check. Thus, in an account consistent with

a legitimate check-cashing business, deposits are normally accompanied by

withdrawals, and the balance is often very minimal. Wilson’s account, however,

never had a balance below $13,000 or $14,000. Moreover, legitimate accounts

typically show 80-90% of the cash being paid to check holders, not used for personal


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expenses. After noticing the unusual account activity, Hancock Bank’s compliance

department closed Wilson’s account in September 2012. The account had a closing

balance of $140,000, an amount strikingly uncharacteristic for a legitimate

check-cashing business.

      Christian Daley, a special agent with the Criminal Investigation division of the

Internal Revenue Service who had worked on dozens of cases involving the filing of

fraudulent tax returns requesting refunds, investigated Wilson’s activities. He

determined that the 37 tax returns from which the IRS issued the tax-refund checks

Wilson deposited into his Hancock Bank account were fraudulent. He examined the

Hancock Bank account records, the canceled refund checks that were negotiated

through the account, and the original tax returns that were filed that caused the refund

checks to be issued.

      From this evidence, Agent Daley identified several indicators of fraud,

including that the refund checks were in large dollar amounts and in whole dollar

amounts, e.g., $39,000. In addition, many of the tax-refund checks Wilson deposited

were for the exact same amount, and the IRS sent refund checks to neighboring

addresses. For example, Wilson received a U.S. Treasury check made payable to

Millie Arcadi for $9,074, dated August 31, 2012, which Wilson deposited on

September 17. Wilson also received a U.S. Treasury check made out to Alfred Malay


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for the exact same amount, with an address next door, that Wilson deposited into his

Hancock Bank account on the same day. Agent Daley requested records of

Form-1099s issued from multiple banks to support the interest payments that

individuals reported on their tax returns with corresponding checks that went into

Wilson’s Hancock Bank account. However, no such records existed. He pointed out

that Wilson did not disclose the Hancock Bank account to either the State of Florida

on his application for a check casher license or to FinCEN—the Financial Crimes

Enforcement Network—on that application to register Against All Odds as a check

casher.

      The evidence at trial established that the victims identified in the charged

counts did not file the IRS tax returns associated with the tax-refund checks Wilson

deposited into his account. They did not earn the large amounts of interest claimed on

the returns. They did not receive the tax-refund checks made payable to them. The

victims never transacted any business with Wilson or Against All Odds. And they did

not endorse the backs of the refund checks with their signatures. Indeed, one of the

victims had been deceased four months when Wilson deposited two refund checks

issued in her name and purportedly endorsed with her signature.

      To establish Wilson’s knowledge and intent, the government relied on the

testimony of Sherman Brown, a convicted felon and associate of Wilson. Brown


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testified that he sold Wilson tax-refund checks, helped Wilson obtain social security

numbers, observed Wilson file fraudulent tax returns, and accompanied Wilson to

retrieve tax-refund checks in different neighborhoods. Brown grew up in the same

neighborhood with Wilson and has been in and out of jail his entire life. In January

2011, Brown was released from prison and was selling checks to make money. In

October 2011, he reconnected with Wilson and started selling him checks. Brown

sold Wilson around 50 checks and observed him go to stores, cash the checks, and

come back with money. Wilson preferred checks “with the statue of liberty on them,”

checks for less than $10,000, and checks made payable to the recently deceased. Tr.

Trans., Doc. 105, p. 114, 120.

      Toward the end of 2011 and beginning of 2012, Brown accompanied Wilson

to different motels offering free Wi-Fi and observed Wilson file false tax returns on

the IRS website. Also in the beginning of 2012, Brown observed Wilson purchase

social security numbers from “some guys” at various apartment complexes. 

119. On four or five occasions in February of 2012, Brown rode with Wilson to

retrieve checks from different addresses in neighborhoods on the outskirts of town.

Brown last saw Wilson in June 2012, prior to Brown’s arrest in July.

      Wilson testified at trial that he had not seen Brown in 15 years, never bought a

Treasury check, and never filed a false tax return. Wilson claimed that all of his


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customers possessed the proper identification and credentials. He claimed that he was

defrauded and was a “victim here, too.” Tr. Trans., Doc. 106, p. 167-68.

      Wilson testified he charged a ten percent fee to cash the checks. When asked

how he obtained the money to cash checks for his customers, Wilson stated he would

keep $30,000 to $40,000 in his safe at home; his customers would call ahead, and he

would go home to retrieve the money. Sometimes, his customers would drive with

him when he went to deposit their checks at Hancock Bank, and his customers would

wait for him at a nearby Steak n’ Shake. He further claimed that he obtained money

from the Hard Rock Seminole Casino.

      In January 2013, federal agents executed a search warrant at Wilson’s Against

All Odds Bail Bonds and neighboring grocery store. Although Wilson wrote

thousands of dollars of checks to himself, purportedly for his grocery store’s

inventory, the store had empty shelves and no cash register, with only a jar of pickles

in the refrigerator. The agents found nothing to indicate Wilson was complying with

the State’s requirements for legitimate check-cashing businesses. They found no

completed copies of check-cashing applications, no copies of drivers’ licenses, no

copies of checks cashed over $1,000 with thumbprints, no video surveillance, nor any

software program to capture applicant information. Indeed, Agent Daley testified

they saw nothing indicating it was a legitimate check-cashing business, not even a


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cash register. There was a pass-through window separating the grocery store from the

bail bonds side, but it was flimsy and unsecure. The agents seized six boxes of

documents and two hard drives.

      After the agents seized Wilson’s records, Wilson contacted Agent Daley to

retrieve his bail bonds records so he could continue conducting his bail bonds

business. Agent Daley agreed to give him copies, and around February 14, 2013,

Daley brought three boxes full of Wilson’s records to a FedEx copy center to be

copied. After they were copied, the FedEx manager contacted a woman from

Wilson’s office to come pick up the boxes. Wilson came to pick up the boxes, and the

FedEx manager gave Wilson all six boxes, the originals and copies. Approximately a

month later, Wilson learned from his attorney that he needed to return the original

records. Wilson agreed to return them by 8:30am on March 16, but he failed to return

any boxes until later that afternoon. Wilson returned only two boxes which clearly

did not contain all of the records—one box was half full, and the other box was

three-quarters full.

      Wilson was arrested at the end of March 2013. When Agent Daley asked him

why he originally took all six boxes Wilson repeatedly said, “I didn’t take them. I

didn’t take them.” Tr. Trans., Doc. 106, p. 57. Wilson acknowledged that he only

returned two boxes, and when Daley asked him about the third box, Wilson just


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shrugged his shoulders.

      Over Wilson’s objections on hearsay and constitutional grounds, the district

court allowed evidence of text messages from Wilson’s attorney to Agent Daley. On

April 18, 2013, Wilson’s attorney texted Agent Daley that “Freddie is willing to

return the files to you. Where can we meet?” 

60. Agent Daley responded

instructing that Wilson bring the files to the IRS office. Thus, on April 19, 2013,

about two months after Agent Daley initially dropped the records at FedEx to be

copied and approximately one month after Wilson delivered the other two boxes,

Wilson delivered the third and final box.

      Wilson testified he mistakenly took the boxes with the original records and

attributed the delay in returning the boxes to his attorney, claiming his attorney did

not instruct him to return the boxes until April 19.

      The jury convicted Wilson on all counts in the indictment. The Presentence

Investigation Report (PSI) included a 4-level increase to Wilson’s offense level under

U.S.S.G. § 2B1.1(b)(2)(B) because his offenses involved more than 50 victims. The

PSI also included a 14-level increase under U.S.S.G. § 2B1.1(b)(1)(H) because the

total estimated loss caused by Wilson’s crimes exceeded $400,000. The total

estimated loss figure in the PSI included fraudulent tax-refund checks Wilson

deposited in other accounts at Wells Fargo and Bank of America. Like the evidence


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at trial regarding the funds deposited in the Hancock Bank account, he used the funds

in the other accounts for personal expenses, including large casino transactions.

Agent Daley testified at the sentencing hearing that he looked at the bank records and

determined the tax-refund checks were fraudulent, as he saw no legitimate bail-bond

business expenses, the majority of the funds were used for personal expenses, and

many of the payees were deceased. Moreover, he concluded that Wilson was using

the same scheme to generate false returns. Over Wilson’s objections, the district

court ruled that the probation office had correctly calculated Wilson’s guideline

range and sentenced him to serve 102 months imprisonment.

                                   DISCUSSION

I.    Sufficiency of the Evidence

      Wilson contends that the evidence at trial was insufficient to support his

convictions for theft of government funds, aggravated identity theft, and obstruction

of a criminal investigation. We find the record contained ample evidence to sustain

all of Wilson’s convictions.

      Wilson moved for judgment of acquittal on the theft of government funds and

obstruction of a criminal investigation counts, and therefore we will review those

challenges de novo. United States v. Rodriguez, 

, 1303 (11th Cir.

2013). We must consider the evidence in the light most favorable to the government


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and draw all reasonable inferences and credibility choices in favor of the jury’s

verdict, which “cannot be overturned if any reasonable construction of the evidence

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

Id.

      Wilson, however, did not move for judgment of acquittal on his convictions for

aggravated identity theft, and thus we review Wilson’s challenges as to those

convictions only for plain error. United States v. Barrington, 

, 1192

(11th Cir. 2011). We may reverse only if the error is plain, affects Wilson’s

substantial rights, and seriously affects the fairness, integrity or public reputation of

judicial proceedings. United States v. Bernal-Benitez, 

, 1312 n. 6 (11th

Cir. 2010).

      A. Theft of Government Funds

      A defendant may be convicted for theft of government property under 18

U.S.C. § 641 if the government establishes that (1) the money described in the

indictment belonged to the United States or an agency thereof; (2) the defendant

appropriated the property to his own use; and (3) the defendant did so knowingly with

intent to deprive the government of the money. United States v. McRee, 

,

980 (11th Cir. 1993) (en banc). Wilson contends the evidence presented at trial was

insufficient to establish that he knew the tax-refund checks he deposited were issued


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from fraudulently issued tax returns or he intended to steal those funds. We disagree.

      “In this Circuit, to establish the requisite criminal intent, the government need

only prove that defendant knowingly used government property for [his] own

purpose[] in a manner that deprived the government of the use of that property.”

United States v. Lanier, 

, 895 (11th Cir. 1991). The defendant must

know that his taking of property is an unlawful conversion. Morissette v. United

States, 

, 270-71, 

, 253-54, 

(1952).

“[K]nowing conversion requires more than knowledge that defendant was taking the

property into his possession. He must have had knowledge of the facts, though not

necessarily the law, that made the taking a conversion.” 

at trial, when viewed in the light most favorable to the verdict,

was more than sufficient to allow a reasonable jury to find Wilson knowingly

converted the funds and to convict him on all six counts of theft of government funds.

The payees of the tax-refund checks in the six charged accounts never did business

with Wilson, did not file the tax returns associated with the tax-refund checks, and

did not endorse the checks Wilson deposited into his Hancock Bank account.

Moreover, Wilson’s business establishment contained no records such as fingerprint

cards, copies of picture identifications, or completed check-cashing applications

showing Wilson verified the identities of the payees as required under state law. In


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completing the application for licensure, Wilson knew the State required these

security measures, and a jury could reasonably conclude he knowingly disregarded

them.

        Moreover, a jury could certainly infer that Wilson was not running a legitimate

check-cashing business, as evidenced by the sheer volume of money Wilson

deposited almost exclusively from United States Treasury checks—over

$336,000—in a span of only three months; the fact that he used the money almost

exclusively for personal expenses, including $33,000 at a casino and over $110,000

in payments to himself; that his account balance never stayed below $13,000; and

that Wilson made deposits and withdrawals up to two or three times per week,

sometimes multiple times a day. In addition, the jury could infer that Wilson

knowingly hid his Hancock Bank account from authorities, as he did not disclose the

account on his check-cashing license application or his FinCEN application despite

having opened the account prior to filing the applications.

        Moreover, Sherman Brown’s testimony established that Wilson was actively

involved in compiling and filing fraudulent tax returns which resulted in the issuance

of tax refunds. Finally, the jury could disbelieve Wilson’s own testimony and rely on

that testimony as substantive evidence of his guilt. See United States v. Kendrick, 

, 985 (11th Cir. 2012). Thus, as the district court recognized, the evidence


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was “fairly overwhelming” that Wilson acted knowingly and willfully, and certainly

sufficient to support his convictions for theft of government funds. Tr. Trans., Doc.

106, p. 102-103.

      B. Aggravated Identity Theft and “Means of Identification”

      Wilson further argues the evidence was insufficient to sustain his convictions

for aggravated identity theft. He claims the use of the victims’ names on the refund

checks, with no other identifying information, is not sufficient to identify a specific

individual, and thus cannot constitute a “means of identification” under 18 U.S.C.

§1028A. We disagree.

      This issue is one of statutory interpretation. We must determine whether the

use of someone’s name and forged signature on a United States Treasury check

sufficiently identifies a specific individual to qualify as a “means of identification”

under 18 U.S.C. § 1028A. We review properly preserved questions of statutory

interpretation de novo. United States v. Kraczack, 

, 1305 (11th Cir.

2003). However, where a defendant fails to present the issue to the district court, like

Wilson in this case, we review only for plain error. United States v. Smith, 

, 1282-83 (11th Cir. 2006). As discussed below, we find no error, much less

plain error.

      This Court has not previously resolved this specific issue in a published


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opinion, and there appears to be some conflict in the circuits on whether the use of

someone’s name qualifies as a “means of identification” under 18 U.S.C. § 1028A.

Compare United States v. Mitchell, 

(4th Cir. 2008) (holding a bare

name alone was not sufficient to identify the specific individual as required under the

statute), with United States v. Blixt, 

(9th Cir. 2008) (holding a forged

signature constitutes the use of that person’s name and thus qualifies as a “means of

identification” under the statute). While there can usually “be no plain error where

there is no precedent from the Supreme Court or this Court directly resolving it,”

United States v. Castro, 

, 1253 (11th Cir. 2006) (internal quotation and

citation omitted), we will address the merits of Wilson’s argument to bring some

guidance on this issue in this Circuit.

      “The first rule in statutory construction is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the particular dispute. If

the statute’s meaning is plain and unambiguous, there is no need for further inquiry.”

United States v. Segarra, 

, 1271 (11th Cir. 2009) (internal quotation

and citation omitted). We will not “look at one word or term in isolation, but instead

[will] look to the entire statutory context.” 

and citations

omitted). We must interpret a statute “in a manner consistent with the plain language

of the statute unless doing so would lead to an absurd result.” 

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      We find the plain language of 18 U.S.C. § 1028A resolves this issue and hold

that the use of a person’s name and forged signature sufficiently identifies a specific

individual to qualify as a “means of identification” under the aggravated identity theft

statute. The aggravated identity theft statute provides, in part:

      (1) In general. – whoever, during and in relation to any felony violation
      enumerated in subsection (c), knowingly transfers, possesses, or uses,
      without lawful authority, a means of identification of another shall, in
      addition to the punishment provided for such felony, be sentenced to a
      term of imprisonment of 2 years. 18 U.S.C. § 1028A(a)(1).

The felony violations enumerated in subsection (c) include theft of government

funds, in violation of 18 U.S.C. § 641. 18 U.S.C. § 1028A(c)(1).

      The statute defines the term “means of identification” as “any name or number

that may be used, alone or in conjunction with any other information, to identify a

specific individual.” 18 U.S.C. § 1027(d)(7). Under the statute, the use of a name,

alone or in conjunction with any other information, clearly constitutes a means of

identification so long as the name could be combined with other information to

identify a specific individual.

      We agree with the Ninth Circuit’s reasoning in United States v. Blixt that “[b]y

using the word ‘any’ to qualify the term ‘name,’ the statute reflects Congress’s

intention to construct an expansive definition” that includes a 

(citing Ali v. Federal Bureau of Prisons, 

, 

, 169


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(2008) (“Read naturally, the word ‘any’ has an expansive meaning, that

is, ‘one or some indiscriminately of whatever kind.’”)). Indeed, a signature is

understood to be a person’s written name. See Black’s Law Dictionary (10th ed.

2014) (defining “signature” as a “person’s name or mark written by that person or at

the person’s direction.”).

      Here, the United States Treasury checks were made payable to six individuals

and were endorsed with those individuals’ forged signatures. This evidence was

sufficient to constitute a “means of identification” to identify a specific individual

under the statute.

      C. Obstruction of an Investigation

      Under 18 U.S.C. § 1505, it is a crime to “corruptly . . . influence[], obstruct[],

or impede[] or endeavor[] to influence, obstruct, or impede the due and proper

administration of the law under which any pending proceeding is being had before

any department or agency of the United States.” The term “corruptly” means “acting

with an improper purpose, personally or by influencing another, including making a

false or misleading statement, or withholding, concealing, altering, or destroying a

document or other information.” 18 U.S.C. § 1515(b).

      Wilson contends his conviction for obstruction of an investigation must be

overturned for two reasons: (1) the evidence was insufficient to support a finding that


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he acted “corruptly” or with intent to impede the due administration of justice, and

(2) the evidence presented at trial was a variance from the allegations in the

indictment. We disagree on both counts.

       First, the evidence at trial was sufficient to allow a reasonable jury to find

Wilson acted corruptly and to convict him of obstruction. A reasonable jury could

have concluded that Wilson acted corruptly both by taking the original documents

from FedEx and by not returning the originals in a timely manner, thus converting the

records to his own use. Wilson testified at trial that he mistakenly took the original

documents. However, Wilson did not tell the arresting agent that he had taken the

documents by mistake. Instead, when the agent asked Wilson why he had taken the

boxes, Wilson wholly denied taking them, repeating “I didn’t take them. I didn’t take

them.” Tr. trans., Doc. 106, p. 57. The jury could reasonably rely on Wilson’s

conflicting explanations as evidence of his “consciousness of guilt.” See United

States v. Holbert, 

, 129 (5th Cir. 1978)2. Moreover, the jury could have

inferred that Wilson knew he was withholding documents from the attorney’s text

message that Wilson was “willing to return the files.” Tr. Trans., Doc. 106, p. 60.

Finally, the jury could have disbelieved and rejected Wilson’s own testimony that he

had taken the originals by mistake and considered his testimony as substantive

2
 In Bonner v. City of Pritchard, 

, 1209 (11th Cir. 1981) (en banc), this Court adopted
as binding precedent the decisions of the former Fifth Circuit rendered prior to October 1, 1981.

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evidence of his guilt. United States v. Williams, 

, 1325 (11th Cir. 2004)

(“[W]hen a defendant chooses to testify, he runs the risk that if disbelieved the jury

might conclude the opposite of his testimony is true.”).

       Second, the evidence presented at trial was not a variance from the allegations

in the indictment. Because Wilson failed to raise this argument at trial, we review it

for plain error. To obtain reversal under plain-error review, Wilson must show that

there is: “(1) error, (2) that is plain, and (3) that affects substantial rights. If all

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Davila, 

, 993

(11th Cir. 2014) (internal quotation and citation omitted).

       The obstruction count charged that Wilson “did corruptly obstruct, and

impede, or endeavor to instruct and impede, the due and proper administration of the

law under which a pending proceeding, that is, a criminal investigation, that was

being had before the Department of Justice and IRS—Criminal Investigation, by

taking, removing and converting to his own use documents that were lawfully seized

during the execution of a federal search warrant and were in the care, custody, and

control of FedEx Office” in violation of 18 U.S.C. § 1505. Wilson argues the

indictment charged him with taking records, and the proof at trial was that he failed to


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promptly return them.

      A variance “exists where the evidence at trial proves facts different from those

alleged in the indictment.” United States v. Gold, 

, 813 (11th Cir. 1984)

(emphasis in original). A variance “requires reversal only when the defendant can

establish that his rights were substantially prejudiced thereby.” United States v. Flynt,

, 1005 (11th Cir. 1994). In order to show substantial prejudice from a

variance, a defendant must show that the proof at trial differed so greatly from the

charges that he was “unfairly surprised and was unable to prepare an adequate

defense.” United States v. Alred, 

, 1415 (11th Cir. 1998).

      Under plain error review, Wilson fails to show a variance occurred that

substantially prejudiced his rights. The indictment charged that Wilson corruptly

obstructed a criminal investigation by taking, removing, or converting the

documents. As explained above, the proof at trial comported with that charge.

II.   Evidentiary Objections

      Wilson contends that the district court erred in admitting the following

evidence at trial: (1) Sherman Brown’s testimony implicating Wilson in illegal

activity; (2) thirty-one tax returns and tax-refund checks the government did not

charge in the indictment; (3) Agent Daley’s testimony that all of the tax-refund

checks Wilson deposited—the 6 charged and the 31 uncharged—resulted from


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fraudulent tax returns; and (4) certain text messages from Wilson’s former attorney to

Agent Daley. As discussed below, we find no error.

      A. Sherman Brown’s Testimony

      Wilson contends the district court erred in admitting Sherman Brown’s

testimony because the conduct Brown described was not sufficiently similar to the

charged conduct to be relevant, and the prejudice of the testimony outweighed its

evidentiary value. We disagree.

      Before addressing the merits of Wilson’s arguments, we must determine the

appropriate standard of review. Wilson contends an abuse of discretion standard

applies because he objected to Brown’s testimony before trial, and Federal Rule of

Evidence 103(b) relieved his obligation to renew the objection at trial to preserve the

issue for review. The government disagrees and argues the more stringent plain error

standard applies because the district court’s pretrial ruling was not definitive, and

thus Wilson was required to renew the objection at trial. After careful consideration,

we conclude that Wilson failed to preserve this issue for review, and thus plain error

review is appropriate.

      Rule 103(b) states, “[o]nce the court rules definitively on the record—either

before or at trial—a party need not renew an objection or offer of proof to preserve a

claim of error for appeal.” Fed. R. Evid. 103(b) (emphasis added); see also Tampa


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Bay Water v. HDR Eng’g, Inc., 

, 1178 (11th Cir. 2013) (“[U]nder the

Federal Rules of Evidence, it is [not] necessary for a party to renew an objection to

evidence when the district court has definitely ruled on the party’s motion in

limine.”). Here, the district court did not definitively rule on the admissibility of

Brown’s testimony. Addressing Wilson’s pretrial objection to Brown’s testimony,

the district court merely issued a provisional ruling. Throughout its discussion, the

court used equivocal language stating, “[k]eeping in mind that none of this evidence

has been actually offered yet,” tr. trans., doc. 104, p. 46, and “should Sherman Brown

testify,” 

48, and “I think Mr. Brown’s testimony can be either intrinsic or

extrinsic.” 

neither “denied” or “overruled” the objection nor used

decisive language such as “rule,” “decide,” or “conclude.” Compare Tampa Bay

, n. 5 (district court’s pre-trial ruling was sufficiently

definitive where district court stated “motion [to exclude] is not going to be granted”;

and “that is my ruling”).

      Indeed, the district court informed Wilson that the ruling was contingent upon

an objection at trial: “So to the extent that Mr. Brown is going to testify, and should

his testimony be objected to – I don’t know for sure exactly what he’s going to say, so

there may be other objections, but that’s my thought, that it would seem to be both

intrinsic and extrinsic under 404(b).” Tr. Trans., Doc. 104, p. 49 (emphasis added).


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Even if counsel for Wilson was unsure whether the ruling was sufficiently definite,

the rule “imposes the obligation on counsel to clarify whether an in limine or other

evidentiary ruling is definitive when there is doubt on that point.” Fed. R. Evid.

103(b) advisory committee’s note. Wilson failed to renew the objection at trial, and

thus we can only review the admission of Brown’s testimony for plain error.

      The trial court committed no plain error. Indeed, the trial court properly

admitted Brown’s testimony as intrinsic evidence that explained the chain of events

surrounding the context and set-up of the charged crimes and as necessary to

complete the story of the charged crimes. See United States v. Edouard, 

, 1344 (11th Cir. 2007) (“Evidence not part of the crime charged but pertaining

to the chain of events explaining the context, motive, and set-up of the crime, is

properly admitted if linked in time and circumstances with the charged crime, or

forms an integral and natural part of an account of the crime, or is necessary to

compete the story of the crime for the jury.”). Brown’s testimony explained how

Wilson came to participate in the fraudulent activity, establishing the context,

motive, and set-up of how Wilson knowingly converted fraudulently issued

tax-refund checks from fraudulent IRS tax returns. Brown’s testimony related to

events from October 2011, through June 2012, which is sufficiently linked in time

and circumstance with the charged check conversions occurring from July 31, 2012,


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through September 26, 2012. 3

       Moreover, Brown’s testimony was not unduly prejudicial under Rule 403.

“Rule 403 is an extraordinary remedy that must be used sparingly because it results in

the exclusion of concededly probative evidence.” United States v. US Infrastructure,

Inc., 

, 1211 (2009). Indeed, “the test under rule 403 is whether the

other acts evidence was dragged in by the heels solely for prejudicial impact.” 

As discussed above, Brown’s testimony was properly admissible

as intrinsic evidence, and thus there was no error—much less plain error—in its

admission.

       B. Uncharged Tax Returns and Tax-Refund Checks

       Wilson also contends the district court erred in allowing the government to

introduce evidence of 31 uncharged tax-refund checks amounting to almost $320,000

that were deposited into Wilson’s Hancock Bank account, together with the

associated tax returns, IRS transcripts, and Treasury check records. Because Wilson

properly preserved his objection at trial, we review the district court’s decision for an

abuse of discretion. Rosenfeld v. Oceania Cruises, Inc., 

, 1328 (11th

Cir. 2012) (“The district court’s decision admitting or excluding evidence is a

3
  Wilson argues Brown’s testimony only related to events through January or February of 2012,
which is not sufficiently linked in time and circumstances. Brown, however, testified he last saw
Wilson in June 2012. Thus, a jury could reasonably infer their dealings with each other continued
through June 2012. Wilson opened his Hancock Bank account and began depositing the tax-refund
checks at the end of June 2012.

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discretionary call; a judge commits no reversible error unless his decision constituted

an abuse of discretion.”). Under an abuse of discretion review, the district court’s

determination “cannot be overturned unless [it is] ‘manifestly erroneous.’” 

(citation omitted). “A district court abuses its discretion if it applies an incorrect

legal standard, follows improper procedures in making the determination, or makes

finding of fact that are clearly erroneous.” 

court did not abuse its discretion. Indeed, the court properly

admitted the Hancock Bank account records related to the uncharged tax-refund

checks as intrinsic to the charged crimes. The records were clearly linked in time and

circumstances with the charged crimes, as Wilson deposited all of the checks in his

Hancock Bank account between June and September 2012. Moreover, the checks

arose out of the same series of transactions as the charged offenses and exhibited the

same fraudulent indicators as the checks in the charged counts. Thus, the district

court properly admitted all of the Hancock Bank transactions as intrinsic to the

charged crimes. 4


4
  The district court alternatively ruled that the Hancock Bank records were admissible pursuant to
Rule 404(b). Even if it was error to admit the uncharged tax returns and refund checks evidence as
intrinsic, the evidence would be admissible under Rule 404(b): it was relevant to show Wilson’s
knowledge and intent and to counter his claim that he was a legitimate check casher; it was
sufficient to show that Wilson committed the acts, and the probative value of the evidence was not
substantially outweighed by undue prejudice. The limiting jury instruction at the end of trial also
minimized the risk of prejudice. Despite Wilson’s argument to the contrary, no reversible error
resulted from the district court not giving the limiting jury instruction at the time the evidence was

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       Wilson contends the district court abused its discretion in admitting the

government’s Bulk Exhibits 1, 2, 3, and 4 containing all of the tax returns, IRS

transcripts, refund checks, and U.S. Treasury check records because the exhibits did

not comport with the government’s representations as to their content. Indeed, the

government admits it incorrectly represented that Exhibits 1A-J, 2A-J, 3A-J, and

4A-J related to the six charged counts when in fact, only Exhibits A-F related to the

charged refund checks; exhibits G-J did not. The government also included two

refund checks for JoshR and HopeF without any corresponding tax returns. However,

at trial, Wilson neither objected to the admission of these exhibits on the grounds that

they did not comport with the government’s representations as to their content nor

explored these discrepancies in his cross examination of Agent Daley.

       A “defendant is entitled to a fair trial; not a perfect one.” United States v.

Rodriguez, 

, 1371 (5th Cir. 1974) (citing Lutwak v. United States, 

, 619, 

, 

(1953)). Evidentiary rulings provide no

basis for relief unless “there is a reasonable likelihood they affected the defendant’s

substantial rights; where an error had no substantial influence on the outcome, and

sufficient evidence uninfected by error supports the verdict, reversal is not

warranted.” United States v. Schlei, 

, 980 (11th Cir. 1997) (internal

admitted during trial. See United States v. Sterling, 

, 239 (11th Cir. 2013) (finding any
error to be harmless when limiting instruction given at end of trial).


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quotation and citation omitted). Wilson has failed to show a reasonable likelihood

that any of the discrepancies in evidence affected his substantial rights. Indeed, none

of the discrepancies even involved the charged counts.

      C. IRS Agent Daley’s Testimony

      Wilson contends the district court erred in allowing IRS Agent Daley to testify

that all 37 of the tax returns associated with the Hancock Bank account checks were

“fraudulent.” We review this claimed error for an abuse of discretion.

      We find no error here. Agent Daley relied on the original tax returns that

caused the refunds to be issued, the backs of the canceled refund checks, and the lack

of Form-1099s from the banks that had purportedly paid the interest claimed on the

returns to properly support his conclusion that the tax returns were fraudulent. He

described various patterns of fraud including checks having identical refund amounts

and individuals claiming large amounts of interest in whole dollar amounts. Thus, the

district court properly admitted and let the jury weigh Daley’s opinion that all of the

tax returns were fraudulent.

      D. Text Messages from Wilson’s Former Attorney to IRS Agent

      Wilson also contends the district court erred in admitting his former attorney’s

text messages for two reasons: (1) the messages were improperly admitted as

non-hearsay under Federal Rule of Evidence 801(d)(2)(D) as statements offered


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against Wilson and made by Wilson’s agent on a matter within the scope of that

relationship while it existed; and (2) the admission of the messages violated the

Confrontation Clause. We disagree.

      The district court did not abuse its discretion. Rule 801(d)(2)(D) provides that

a statement is not hearsay if the “statement is offered against a party and is . . . a

statement by the party’s agent or servant concerning a matter within the scope of the

agency or employment, made during the existence of the relationship.” Fed. R. Evid.

801(d)(2)(D). Wilson contends that the district court erred because it did not give

proper deference to the attorney-client relationship. The district court, however,

carefully considered the admission of the text messages and its resulting impact on

the attorney-client relationship. The district court observed that the context of the

statements did not suggest any attorney-client privilege because the attorney was

texting with Agent Daley.

      Wilson also contends that the admission of the text messages violated the

Confrontation Clause. We review “a preserved Confrontation Clause claim de novo,”

United States v. Curbelo, 

, 1271-72 (11th Cir. 2013), and also review

de novo “the question of whether hearsay statements are testimonial for purposes of

the Confrontation Clause.” United States v. Caraballo, 

, 1226 (11th

Cir. 2010) (internal quotation and citation omitted).


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      The Confrontation Clause of the Sixth Amendment provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” U.S. Const. Amend. VI. The Confrontation Clause “bars the

admission of the testimonial statements of a witness who did not appear at trial unless

the witness was unavailable and the defendant had a prior opportunity to

cross-examine him or her.” Id.at 1227. (citing Crawford v. Washington, 

,

53-54, 

, 1360, 

(2004)). The Confrontation Clause is

concerned with “testimonial statements made out of court by a declarant whom the

defendant has a constitutional right to confront through cross-examination.” United

States v. Charles, 

, 1322 (11th Cir. 2013).

      The central issue here is whether the attorney’s text messages are testimonial.

Testimonial statements are ones “that declarants would reasonably expect to be used

prosecutorially.” 

, 124 S.Ct. at 1364. Certain statements “by

their nature [are] not testimonial—for example, business records or statements in

furtherance of a conspiracy.” 

, 124 S.Ct. at 1367. Testimony

is “a solemn declaration or affirmation made for the purpose of establishing or

proving some fact.” 

(internal quotation and citation

omitted). This Court has explained that,

      formal statements to government officers are generally testimonial as
      are affidavits, custodial examinations, prior testimony that the defendant

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       was unable to cross-examine, or similar pretrial statements that
       declarants would reasonably expect to be used prosecutorially.
       Similarly, extrajudicial statements contained in formalized testimonial
       material, such as affidavits, depositions, prior testimony, or confessions,
       and statements that were made under circumstances which would lead
       an objective witness reasonably to believe that the statement would be
       available for use at a later trial, fall within the core class of testimony.
       

.

       Here, the attorney communicated through informal text messages to

coordinate the delivery of the boxes. The cooperative and informal nature of those

text messages was such that an objective witness “would [not] reasonably expect [the

texts] to be used prosecutorially.” 

, 124 S. Ct. at 1364

(internal quotation marks omitted). We find the text messages were non-testimonial

and properly admitted. See United States v. Mathis, 

(11th Cir. 2014)

(text messages were non-testimonial, and therefore their admission did not violate

defendant’s rights under the Confrontation Clause, as the text messages were

informal, haphazard communications rather than formal statement to government

officers or statements made during a custodial examination).

III.   Sentencing Issues

       Following Wilson’s trial, the district court imposed a total sentence of 102

months’ imprisonment, consisting of 78 months each as to Counts 1-3, 5, 6, and 13,

all to run concurrently with each other; 12 months as to Count 4, to run concurrently

with the 78-month term; 24 months each as to Counts 7-9, 11, and 12, to run

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concurrently with each other, but consecutively to the sentences for the other counts;

and 60 months for Count 14, to run concurrently with the sentences for Counts 1-3,

5,6, and 13.

       After considering the evidence presented at trial and at sentencing, the district

court determined: (1) Wilson’s conduct involved over $400,000 in losses and thus

applied a 14-point offense level increase in accordance with section 2B1.1(a)(2) of

the Sentencing Guidelines, and (2) his conduct involved over 50 victims and thus

applied a 4-point increase in accordance with section 2B1.1(b)(2) of the Sentencing

Guidelines.

       Wilson argues the district court erred by including uncharged tax-refund

checks in its loss calculation and considering each name as a victim on the charged

and uncharged checks. This Court reviews the district court's factual findings for

clear error and its application of the Sentencing Guidelines to those facts with “due

deference,” United States v. Rodriguez-Lopez, 

, 1136-37 (11th Cir.

2004) which is “tantamount to clear error review.” 5 United States v. Rothenberg, 

, 624 (11th Cir. 2010). For a finding to be clearly erroneous, the Eleventh

Circuit “must be left with a definite and firm conviction that a mistake has been

committed.” 

A factual finding cannot be clearly erroneous when the
5
 We reject the government’s contention that the standard of review is plain error and invited error.
Not only did Wilson’s attorney object to the amount of loss and number of victims, but Wilson
himself also objected in a letter the district court considered.

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factfinder is choosing between two permissible views of evidence. United States v.

Saingerard, 

, 1343 (11th Cir. 2010).

      We find no error. At sentencing, the district court may take into account

conduct for which the defendant was not charged or convicted, so long as the

government proves such conduct by a preponderance of the evidence. See United

States v. Exarhos, 

, 7130 (11th Cir. 1998) (conduct not contained in the

indictment may be considered at sentencing); United States v. Barakat, 

, 1452 (11th Cir. 1997) (conduct for which the defendant was acquitted may be

considered at sentencing). For sections like § 2B1.1 that determine the defendant’s

offense level largely based on the total amount of loss or some other measure of

aggregate harm, the Sentencing Guidelines instruct the court to consider “all acts and

omissions committed, aided, abetted, counseled, commanded, induced, procured, or

willfully caused by the defendant” that were part of the “same course of conduct or

common scheme or plan as the offense of conviction.” U.S.S.G. §§ 1B1.3(a)(1)(A)

and (a)(2); see also 3D1.2(d). The district court’s loss calculation need not be made

with precision and may be properly based on a reasonable estimate given the

information available. 

. However, when the defendant

challenges the calculation, the government bears the burden of supporting it with

reliable and specific evidence. 

13-14846     Date Filed: 06/05/2015    Page: 35 of 36


      Here, the district court properly included the uncharged conduct in its

calculations. The undisputed facts in the PSI, and the evidence the government

presented at trial and sentencing, sufficiently support the court’s finding that the

uncharged conduct was part of a common scheme and relevant for sentencing

purposes. Agent Daley’s testimony at trial and sentencing established that Wilson

deposited 52 tax-refund checks into three bank accounts registered in the name of

Wilson’s bail bonds business. Daley testified the tax returns that caused these 52

checks to be issued were all fraudulent.

      We reject Wilson’s contention that the government failed to present sufficient

evidence to support the conclusion that the uncharged refund checks were fraudulent.

Daley testified he discerned a pattern in the way the tax returns were filed indicating

fraudulence. The checks were in large amounts and for whole dollar amounts. Wilson

used the money deposited from these checks almost exclusively for personal matters,

not for his bail bonds or check-cashing businesses. And many of the payees were

deceased. Wilson’s contention on appeal that the government’s exhibits were

inconsistent with the prosecutor’s discussion of them at trial is unavailing, as the

evidence amply supported the district court’s loss and victim calculations.

      Wilson also contends for the first time on appeal that the government failed to

prove that the names on all of the checks were associated with real people. We review


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objections raised on appeal that were not timely raised in the district court for plain

error. See Fed. R. Crim. P. 52(b); United States v. Olano, 

, 731, 

, 1776, 

(1993). The district court committed no error,

plain or otherwise. We have explained that 18 U.S.C. § 1028A(a)(1) criminalizes the

use of a real person’s identity. United States v. Zuniga-Arteaga, 

, 1225

(11th Cir. 2012). This Circuit has held that district courts may infer, based on

common sense, that the IRS would not issue a tax-refund check for a fictitious

person. See United States v. Philidor, 

, 885-86 (11th Cir. 2013). Thus,

the district court reasonably inferred that the 52 names identified real people in its

calculation of the number of victims at sentencing.

      Based on the foregoing, we find no reversible error. Accordingly, Wilson’s

convictions and sentence are AFFIRMED.




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