472 F.3d 851 (11th Cir. 2006), 05-12742, United States v. Kennard

Docket Nº:05-12742.
Citation:472 F.3d 851
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Laboyce KENNARD, Abraham L. Kennard, Defendants-Appellants.
Case Date:December 15, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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472 F.3d 851 (11th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Laboyce KENNARD, Abraham L. Kennard, Defendants-Appellants.

No. 05-12742.

United States Court of Appeals, Eleventh Circuit.

December 15, 2006

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[Copyrighted Material Omitted]

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Mildred Geckler Dunn and Stephanie Kearns, Fed. Pub. Defenders, Atlanta, GA, Janice Kristin Jenkins (Court-Appointed), Roswell, GA, for Defendants-Appellants.

Amy Levin Weil, John Russell Phillips, Atlanta, GA, for U.S.

Appeals from the United States District Court for the Northern District of Georgia.

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

CARNES, Circuit Judge.

This case grows out of the intersection of two truths. One, articulated by the Apostle Paul, is that "the love of money is the root of all evil," 1 Timothy 6:10 (KJV), and the other, often attributed to P.T. Barnum, is that "[t]here's a sucker born every minute," see A.H. Saxon, P.T. Barnum: The Legend and the Man 1 (1989). Fraudulent investment schemes are likely as old as the truths reflected in those observations, but the one involved in this case has a twist. A man of the cloth defrauded more than a thousand churches and other non-profit organizations out of millions of dollars by promising them miraculous returns on their investments. The law of economic reality dictates that all promises of wildly extravagant investment returns will be broken, and legal realities mandate that litigation must follow.

I.

With the help of his brother Laboyce, Rev. Abraham Kennard bilked hundreds of churches and other non-profit organizations out of millions of dollars. A jury convicted him of nine counts of mail fraud in violation of 18 U.S.C. § 1341, seventy-seven counts of conducting a monetary transaction involving over $10,000 in criminally derived property in violation of 18 U.S.C. § 1957, twenty-seven counts of engaging in monetary transactions to promote criminal activity in violation of 18 U.S.C. § 1956(a)(1)(A)(i), one count of conspiring to launder money in violation of 18 U.S.C. § 1956(h), and one count of income tax evasion in violation of 26 U.S.C. § 7201. The same jury found Laboyce Kennard guilty of one count of conspiring to launder money in violation of 18 U.S.C. § 1956(h). The two Kennard brothers now appeal their convictions, and Laboyce challenges the calculation of his 38-month prison sentence. (For the sake of simplicity and to avoid needless repetition, we will distinguish between the Kennard brothers by using their first names without repeating their last one.)

Abraham ran his scheme using a corporation he set up named Network International Investment Corp. Targeting churches and other nonprofit organizations seeking funds for capital improvement projects, Abraham made his victims a simple offer. In exchange for every $3,000 in "membership fees" that the organizations paid into the Network corporation, they would receive $500,000 in grants. Abraham told prospective Network members that the grants were possible because he had lined up "investors"--including Evander

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Holyfield's brother, Bernard--who would provide tens of millions of dollars. Moreover, Abraham and Network had plans to build a number of profit-generating Christian resorts around the country. These, too, would help him fund the grants.

Unfortunately for his victims, they believed Abraham's plan and accepted his offer. All told, Network raised more than $8.7 million from more than 1,600 churches and other nonprofits around the United States.

As Network "membership fees" poured in, Abraham deposited them in the escrow account of his attorney, Scott Cunningham. From there, Abraham could send the funds to any number of destinations. One place they went was into a bank account of Promotional Time International, Inc., a company which Laboyce controlled. Laboyce deposited into that account checks from both Cunningham's escrow account and from Abraham himself. From that account, Laboyce later wrote checks to Abraham.

Abraham fled after learning of his initial indictment in January 2004, leading authorities on a five-week manhunt before being captured in Okolona, Mississippi. By the time of trial a year later, the government had reached plea agreements with several other players in the scheme, and attorney Cunningham--who was eventually convicted for his role in all of this--was granted a separate trial. After a four-week trial, a jury found both Kennard brothers guilty of all of the counts remaining against them after the government had dismissed several mail fraud counts against Abraham. Abraham and Laboyce were sentenced to 210 months and 38 months, respectively.

On appeal, the brothers raise a total of seven issues. We consider first the only issue relating to Abraham alone. We then consider an issue the brothers raise jointly before concluding with consideration of the five issues relating to Laboyce alone.

II.

Abraham contends that the district court erred by admitting evidence of--and instructing the jury on--his post-indictment flight. We review a district court's evidentiary rulings only for an abuse of discretion.

United States v. Word, 129 F.3d 1209, 1212 (11th Cir.1997). District courts also "have broad discretion in formulating jury instructions provided that the charge as a whole accurately reflects the law and the facts." United States v. Prather, 205 F.3d...

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