United States v. Anderson

• Decision Date: 15 June 2021
• Docket Number: No. 18-13947,18-13947
• Citation: 1 F.4th 1244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Brian ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

1 F.4th 1244

UNITED STATES of America, Plaintiff-Appellee,

v.Michael Brian ANDERSON, Defendant-Appellant.

No. 18-13947

United States Court of Appeals, Eleventh Circuit.

June 15, 2021

Nancy Greenwood, U.S. Attorney's Office, Augusta, GA, James C. Stuchell, U.S. Attorney's Office, Savannah, GA, R. Brian Tanner, Savage Turner Pinckney & Savage, Savannah, GA, U.S. Attorney Service-Southern District of Georgia, U.S. Attorney's Office, Savannah, GA, for Plaintiff - Appellee.

Amy Lee Copeland, Rouse & Copeland, LLC, Savannah, GA, for Defendant-Appellant.

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

JULIE CARNES, Circuit Judge:

Defendant Michael Brian Anderson, the owner of a shrimping business in Savannah, Georgia, appeals his convictions for four counts of mail fraud, three counts of making false statements, and two counts of money laundering. In relevant part, a jury found him guilty of mailing U.S. Customs & Border Protection ("Customs" or "CBP") several forms, which falsely claimed large business expenditures from 2005 to 2007, as part of a scheme to acquire federal government subsidies under the Continued Dumping and Subsidy Act of 2000 ("CDSOA"). The CDSOA is a law designed to compensate domestic producers, including shrimpers, for losses that foreign producers caused by "dumping" underpriced goods into the American market. On appeal, Defendant argues that the district court: (1) erred in asking Defendant whether he waived his right to testify after defense counsel rested; (2) abused its discretion in declining to give Defendant's proposed jury instruction on the CDSOA; (3) violated Federal Rule of Criminal Procedure 30 by correcting an erroneous mail-fraud jury instruction after Defendant's closing argument; and (4) plainly erred in giving a modified Allen¹ charge similar to the pattern instruction. After careful consideration, and with the benefit of oral argument, we affirm Defendant's convictions.

I. BACKGROUND

A. Indictment

A federal grand jury indicted Defendant on four counts of mail fraud, 18 U.S.C. § 1341 (Counts 1–4), three counts of making false statements to the Government, 18 U.S.C. § 1001(a)(3) (Counts 5–7), and two counts of money laundering, 18 U.S.C. § 1957(a) (Counts 8–9). The indictment explained that, during the relevant time period, domestic shrimpers harmed by certain foreign anticompetitive conduct could apply for federal government subsidies by identifying their relevant business expenditures on "CBP Form 7401" and mailing the form to Customs. The mail-fraud and false-statement counts alleged that, in attempting to gain these subsidies, Defendant had falsely claimed business expenses in the amount of $24,184,352. The money-laundering counts alleged that Defendant had used the subsidy money fraudulently obtained to purchase stocks through Edward Jones Investment Company and to purchase real property through Lanier Realty. The case proceeded to trial.

B. Trial

1. The Government's case-in-chief

In its case-in-chief, the Government showed the following. Foreign producers sometimes engage in a form of anticompetitive conduct known as "dumping," which involves undercutting domestic producers by importing underpriced goods. To level the playing field, Congress enacted the CDSOA, which allowed the United States government to levy duties on specific foreign goods and distribute the funds to affected domestic producers. Under the CDSOA program, which Customs administered in conjunction with other agencies, affected domestic producers could claim subsidies by identifying their business expenses on CBP Form 7401 and mailing the form to the Customs office in Indiana. Customs would then use the claimed expenses to calculate each qualifying domestic producer's pro rata share of the funds and distribute the funds accordingly.

In 2005, the Department of Commerce issued an anti-dumping order that required several countries to pay tariffs for dumping shrimp into the U.S. market. The order allowed domestic shrimping businesses to apply for CDSOA subsidies based on expenses incurred after February 2005, up until September 2007, when the CDSOA was repealed. CDSOA claims were cumulative, meaning that each year shrimpers could make a claim for all of their expenses incurred from the date of the anti-dumping order to the date of their claim. Thus, claims would increase over the years, with a 2005 claim including only 2005 expenses, a 2006 claim including expenses from both 2005 and 2006, and a claim made in or after 2007 including all expenses incurred from 2005 to 2007.

Defendant owned and operated Shrimpy's, Inc., a shrimping business. Each year from 2005 to 2014, Defendant mailed a copy of CBP Form 7401 to Customs, seeking subsidies for purported business expenses incurred during years 2005 to 2007. In 2005, Defendant made a claim for $218,881 in expenses incurred that year. In 2006, he made a claim for $374,138 in cumulative expenses incurred from 2005 to 2006. His 2007, 2008, and 2009 forms listed $8,256,222 in expenses incurred from 2005 to 2007.

In 2009, Defendant called the Customs help line to ask whether he could claim additional expenses that he had identified after filing his last CDSOA claim. Customs responded that he was permitted to claim additional expenses but that it might request an explanation for the increase. Thereafter, on his 2010–2014 CDSOA forms, Defendant claimed that his expenses from 2005 to 2007 exceeded $24 million. By contrast, Defendant's tax returns from 2005, 2006, and 2007 had listed his costs of goods sold as being $221,719, $307,683, and $0, respectively. Based on his CDSOA claims, Defendant received a total of $864,292.40 in federal subsidies.

In 2013, Customs received a tip from another shrimper that Defendant's claims were illegitimate. In response, Customs sent Defendant three letters asking for information supporting his claims. To substantiate his total claim for over $24 million in raw-materials expenses, Defendant included 47 invoices from R&R Seafood, which were identical except that they bore different dates ranging from February 2005 to September 2006 and listed different rates for shrimp. They stated that, on a biweekly basis, Defendant had purchased from R&R Seafood 100,000 pounds of "16 to 20 per pound head off/on shrimp" at a rate of either $610,000 or $630,000. According to Sean Wuethrich, Customs’ programs execution branch chief who oversaw the CDSOA program, the cost of purchasing shrimp could be claimed as a qualifying raw-materials expense. All in all, the 47 invoices purported to show that Defendant bought 4.7 million pounds of shrimp for more than $29 million over less than two years.

R&R Seafood, however, was incapable of supplying the quantities of shrimp specified in the invoices. Until his death in December 2006, Robbie Robertson owned R&R Seafood. Robertson operated the business with his common-law wife (Aletha Dean Carter), one employee, a short shrimping boat, an old pickup truck, a 1,200-foot facility, and an 8x10-foot freezer. As a small business, R&R Seafood did not have any of the equipment necessary for handling large quantities of shrimp, such as a forklift, a tractor-trailer, or a large freezer. On a good day during the shrimping season, Robertson would catch and sell only 100 to 200 pounds of shrimp out of R&R Seafood. He also briefly sold shrimp to Publix, but the relationship ended because he was able to supply only 50 to 200 pounds of shrimp per day, which was insufficient to meet the grocery store's demand.

When asked if R&R Seafood ever sold 100,000 pounds of shrimp, Carter responded, "Whoa. No. No way." Robertson's daughter and several members of the local shrimping community also thought it impossible that he ever possessed 100,000 pounds of shrimp at one time. Indeed, large shrimp-processing businesses in the community handled at most 400,000 pounds of shrimp in an entire year. And the total amount of shrimp listed on the invoices exceeded the amount of shrimp caught in Chatham County and may have exceeded the total amount of shrimp caught in all of Georgia.

Setting aside the sheer quantity of shrimp listed on the invoices, there were other reasons to doubt their authenticity. Although the invoices were computer-generated, Robertson did not own a computer and R&R Seafood issued only handwritten, carbon-copy receipts. The address for R&R Seafood listed on the invoices was also incorrect. And many of the invoices were dated during the shrimping off-season, when it was illegal to catch domestic shrimp, as well as during the months preceding Robertson's death, when he was severely ill. While frozen shrimp was available year-round, R&R Seafood was closed in the off months and Robertson was not known to deal in block-frozen shrimp.

2. Defendant's case-in-chief

At the close of the Government's case, Defendant moved for a judgment of acquittal, arguing that insufficient evidence showed that he had made false statements or intended to deceive the Government.²

The court denied the motion and Defendant presented his case. In particular, defense counsel sought to elicit from a special agent a purportedly exculpatory statement from Defendant that he found it more efficient to purchase shrimp than catch it himself. The Government, however, successfully excluded the statement. After the court sustained the Government's objection, the court commented that defense counsel had "done everything [she could] do to get in what he says without him having to take the stand and say it."

When the defense rested, the court excused the jury and asked Defendant (1) whether he understood that he had a right to testify if he wished and (2) whether it was his independent decision not to testify. Defendant confirmed that he understood his right to testify, but asked to speak to his lawyer before responding to the court's second question. The court permitted defense counsel to consult with Defendant outside the courtroom. When they returned, defense counsel...