U.S. v. Ellisor

• Decision Date: 07 April 2008
• Docket Number: No. 05-14459.,05-14459.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Lee ELLISOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

522 F.3d 1255

UNITED STATES of America, Plaintiff-Appellee, v. David Lee ELLISOR, Defendant-Appellant.

No. 05-14459.

United States Court of Appeals, Eleventh Circuit.

April 7, 2008.

Michael B. Cohen (Court-Appointed), Ft. Lauderdale, FL, for Ellisor.

Jonathan D. Colan, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, FAY and SILER,^* Circuit Judges.

TJOFLAT, Circuit Judge:

David Lee Ellisor was convicted by a jury on eight counts of mail fraud for selling tickets to thousands of schoolchildren and their parents who expected to attend a "Christmas From Around the World" extravaganza. The district court sentenced Ellisor to 87 months' imprisonment and ordered restitution of $38,509.09. In this appeal, Ellisor contests the factual support for his convictions, several evidentiary rulings, and various aspects of his sentencing. We affirm the district court's judgment in all respects.

Part I of this opinion sets forth the factual and procedural background. In part II, we determine that the district court did not abuse its discretion in making certain evidentiary rulings and find that there was sufficient evidence for a reasonable jury to convict Ellisor on all counts. Part III disposes of Ellisor's claims of sentencing error. Part IV concludes.

I.

A.

In August 2003, David Lee Ellisor approached Michael Schott, the owner of Party Caterers, to offer his company the sole concession rights to a show called "Christmas From Around the World" (the "Christmas show") in exchange for an up-front payment of $1,400. According to Ellisor, the show was sponsored by the University of Miami art department and would feature Christmas gifts and display pieces brought by attending diplomats. Party Caterer's concession rights would include the right to serve alcohol and formal dinners to the diplomats, and $5 lunches to students who visited the show. Schott accepted the business proposal in the belief that the opportunity would be a lucrative one, particularly since Ellisor promised him twenty percent of the show's total revenues "to insure [he would] not lose a thing." Notwithstanding his receipt of the up-front payment, Ellisor made follow-up visits to Party Caterers over the ensuing months to ask for more money. Ultimately, Ellisor received a total of $7,842 from Party Caterers in the form of cash, checks, and charges to its Office Depot corporate account for sundry expenses that Ellisor claimed were related to the show, including the payment of Ellisor's rental car bill and expenses incurred in assembling and mailing out invitations for the show.

In September 2003, Ellisor began mailing the invitation materials to teachers at public and private schools in Miami-Dade County, urging them to take their students on "an amazing field trip" to see the Christmas show. The invitation materials indicated that the show was sponsored by the University of Miami art department and included an April 10, 2003 letter from Walt Hines, a part-time lecturer in the University of Miami art department, purportedly confirming the university's sponsorship of the show. Hines's mailbox at the university was listed as the return mailing address. The materials also claimed that the show was presented by the International Diplomatic Corps of Washington, D.C. (of which Ellisor was identified as an Ambassador-at-Large and diplomatic liaison), as part of the International Ambassadors Foreign Embassy Tour. The cost of the show was $10 per student, made payable to the University Diplomatic Trust Account,¹ and the dates of the show were listed as December 3, 4, and 5, 2003, from 9:00 a.m. to 3:00 p.m.

Excited about the opportunity for their students to attend what the invitation materials described as a "once in a lifetime opportunity" to meet 28 foreign ambassadors, view Christmas trees decorated with ornaments from other countries and cultural art exhibits, and receive thousands of dollars' worth of sponsored gifts, teachers from approximately 23 schools filled out registration forms reserving tickets for students ranging from the third to the fifth grade. Over the next couple of months, several teachers telephoned Ellisor to learn more about the details of the show. According to teachers who testified at trial, Ellisor made the show sound even more enticing, promising that there would be Christmas trees and decorations donated by the Christmas Palace (a local business selling Christmas merchandise), "[f]our hundred some lights and characters, like Harry Potter, going around mixing with the kids in the crowd," a hot Christmas lunch, an educational scavenger hunt, and even live reindeer.² Some of the parents also became interested in attending after learning that adults could participate in the raffle and win prizes. Having secured the necessary permission from the schools and the parents, the teachers collected $10 per ticket from the students and parents, consolidated the money into checks issued by the schools and made payable to the University Diplomatic Trust Account, and mailed the checks to Walt Hines's mailbox at the University of Miami. The schools also arranged and paid for separate bus transportation for the students.

The materials listed November 4, 2003, as the date on which payment was due.³ On November 6, Ellisor checked into a suite at the Doubletree Hotel, where he stayed for the next two weeks. That same day, he requested that Enterprise Rent-a-Car deliver a luxury automobile — first a Jaguar, and then a Cadillac De Ville — to the Doubletree Hotel, and rented the car for a week.

Some time after sending in their payments, the teachers received packages containing raffle tickets to be distributed to the students. The packages also contained materials advertising $20 tickets to attend two evening shows of "Christmas From Around the World," from 4:00 to 8:30 p.m. and from 8:30 to 10:30 p.m. A glossy flier identified the Christmas Palace as the presenter of the evening shows, and gave special thanks to the University of Miami art department, the City of Miami Police Department, the City of Miami Fire Department, and the Doubletree Hotel Coconut Grove. A number of Christmas Palace brochures were also enclosed.

Meanwhile, Ellisor met with the convention center manager at the Coconut Grove Expo Center, Gregory Wright. Ellisor told Wright that the University of Miami had hired him to put on the Christmas show because "he was a great promoter." He requested the convention center from December 1 through 5, 2003, including set-up and break-down days. Wright gave Ellisor a rental application to complete and explained the requirements to hold a show at the convention center: payment of a use fee (including an initial deposit and a larger, final payment), an assembly permit and floor plan approval from the fire department, an occupational license from the City of Miami financial department, a certificate of insurance, and police security. He emphasized that an actual certificate of insurance was necessary; an insurance binder would be inadequate.

On September 15, Ellisor submitted a rental application, together with a $2,500 deposit check provided by the Miami Motorcycle Show. Ellisor then submitted a proposed contract on November 10, three days after the November 7 deadline; nonetheless, Wright did not enforce the deadline. On November 13, Ellisor gave Wright a check for $5,000 toward the outstanding use fee, but that check bounced due to nonsufficient funds. Wright then informed Ellisor that he would no longer accept checks as payment; Ellisor reassured Wright that he had plenty of money coming in. On November 19, Ellisor gave Wright $1,050 in cash.

In the days leading up to the show, Ellisor continued to confirm that the show would proceed as planned. Ellisor asked one teacher to give the school's check for $1,060 directly to the convention center. On December 1, the teacher went to the convention center and attempted to give the check to Gregory Wright, who refused to accept it. Ellisor then picked up the check in person from the school on December 2, assuring the students that the show would proceed as planned. He also told the students that they would receive extra raffle tickets if they would make ornaments from different countries and bring them to the convention center.⁴ Also on December 2, Ellisor went to another elementary school to pick up a check for $2,260. Concerned by Ellisor's disheveled appearance, the school principal sought assurance that the show would live up to the students' expectations. Ellisor replied that it would. Later that day, Wright checked on the convention center and saw no set-up, no Christmas trees or decorations, no tables, chairs, sound system, or art. There were no communications from any ambassadors or any security personnel. Wright did receive a fax of an insurance binder, but that was inadequate to satisfy the rental contract's requirement of an insurance policy.

On December 3, 2003, the first day scheduled for the Christmas show, Ellisor wrote and cashed a check to himself for an amount that was effectively the remaining balance of the University Diplomatic Trust Account, writing "presents" in the memorandum line.⁵ He then purchased a Jaguar 393.⁶ At about the same time, the students, teachers, and chaperones who had purchased tickets for the Christmas show were on their way by bus to the convention center. They found it locked and empty. Attempts to reach Ellisor by telephone were unsuccessful. He left a greeting for the telephone number listed for the show that stated:

This is David. I'm sorry to inform you but the show has been postponed because we didn't have enough money to buy the presents. The City of Miami would not accept the school checks and we have been fighting and we are sorry about the last minute delay. The field trip has been postponed until a couple weeks from now. We are so...