United States v. Lander
| Decision Date | 02 February 2012 |
| Docket Number | No. 10–10852.,10–10852. |
| Citation | 668 F.3d 1289,23 Fla. L. Weekly Fed. C 730 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Joseph T. LANDER, a.k.a. Joey Lander, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
OPINION TEXT STARTS HERE
Nancy J. Hess, Lennard B. Register, III, Pensacola, FL, Thomas F. Kirwin, Tallahassee, FL, Gregory Patrick McMahon, Brett Meltzer, Gainesville, FL, for Plaintiff–Appellee.
Michael Robert Ufferman, Michael Ufferman Law Firm, PA, R. Timothy Jansen, R. Timothy Jansen, PA, Tallahassee, FL, for Defendant–Appellant.
Appeal from the United States District Court for the Northern District of Florida.Before WILSON and COX, Circuit Judges, and RESTANI,* Judge.PER CURIAM:
A jury convicted Joseph T. Lander on mail fraud and money laundering charges related to two separate fraudulent schemes. One of these schemes involved Lander's conversion of funds developers gave him to hold in trust for future expenses associated with their River Shores at Jena development (the “River Shores Scheme”). In the other scheme, Lander convinced one of his victims to make a significant investment in a vitamin company he was starting called GenSpec Labs, LLC by misrepresenting the expected return on this investment and the viability of the company (the “GenSpec Scheme”). The superseding indictment alleged that Lander executed these schemes using the mail and engaged in monetary transactions with the money he derived from the River Shores Scheme. The jury convicted Lander on sixteen of the twenty-one counts in the superseding indictment. Lander now appeals, challenging his convictions and sentences on various grounds.
We conclude that the proof presented at trial in connection with the River Shores mail fraud count (Count Two) materially varied from the allegations contained in the superseding indictment. This variance substantially prejudiced Lander and we reverse his conviction on this count. We also reverse his money laundering convictions (Counts Four through Fourteen) because they were predicated on the River Shores mail fraud count. We affirm Lander's mail fraud convictions related to the GenSpec Scheme. And, we decide Lander's other assertions of error lack merit.
Lander worked as an attorney in Dixie County, Florida. There, he practiced law and served as the county attorney.1 Lander's business dealings extended beyond his legal work, however. He also tried to start and was the majority owner of a vitamin company called GenSpec Labs, LLC (“GenSpec”).
The nature of this scheme demonstrates the blurry line between Lander's private practice and his work as county attorney in this case. A group of real estate developers planning a project called River Shores at Jena (“River Shores”) in Dixie County retained Lander to help guide their project through the county's regulatory process. When they initially met Lander they did not know he was the county attorney, but they quickly became aware of this fact through their meetings with him. In order to “give a level of security to the prospective buyers that [the developers] would finish the development,” (Dkt. 190 at 96), the developers gave Lander $820,000 in August of 2005 to be held in trust to draw against as the developers incurred infrastructure expenses.
Lander then opened an account called the “Lander Law Firm—Special Account” to hold the developers' funds. But, not all of these funds helped complete River Shores. For example, Lander made a $140,980 withdrawal from the account to buy an island off the western coast of Florida. He also used the money for various other personal expenses. These personal withdrawals continued until December of 2007 when Lander depleted and closed the account.
While Lander was making personal draws on the account, he also fulfilled two of the requests from the developers for money from the account. Lander mailed a $200,000 cashier's check drawn from the account on August 17, 2005. In early 2006, Lander fulfilled another request for $300,000. According to one of the developers, he did not question that Lander still held the other $320,000 because Lander remitted these two requests in a timely manner. When the developers made a third request for funds, Lander denied it and informed them that the county commissioners were not comfortable with the project and the rest of the money would be released when they finished the project.
In the summer of 2005, Lander was also busy soliciting investors for a business venture he called GenSpec. According to Lander, GenSpec marketed vitamins for specific racial and ethnic groups and “it was the hottest thing on the market.” (Dkt. 191 at 50.) He told potential investors he already had contracts with various major retail outlets to sell the vitamins and promised a quick return on investment. In fact, Lander had not secured these contracts and did not pay the promised dividends.
One of GenSpec's investors was Kathy Veach. Lander sought a $1 million buy in from Veach in exchange for a 1.5% share of GenSpec. He convinced Ms. Veach to meet part of this obligation by providing a $127,745.90 cashier's check so that Lander could buy a Maserati automobile. Because Veach did not have enough money to pay the buy in, Lander also told her that an individual named Henry Fred “Mitch” Mitchell would lend her $500,000. Veach agreed to this loan and gave Lander $50,000 as payment for the loan origination fee. She then began mailing installment payments of $4,166.67 to Mitchell. Much like the promised GenSpec dividends, this loan was illusory. Mitchell never agreed to loan $500,000 to Veach. Rather, Mitchell acknowledged that Lander owed him money, so he applied part of Veach's payments to this debt and then remitted the rest to Lander.
The grand jury returned a twenty-one count superseding indictment against Lander. Sixteen of those counts concern us here.2 Count Two of the indictment relates to the River Shores Scheme and is explained more fully below. Counts Four through Fourteen charge Lander with money laundering by engaging in a monetary transaction in property of a value greater than $10,000 derived from mail fraud, in violation of 18 U.S.C. § 1957. These counts are based on various withdrawals Lander made from the Lander Law Firm—Special Account. Counts Fifteen through Nineteen also charge mail fraud in violation of 18 U.S.C. §§ 1341 and 1342 in connection with Lander's GenSpec Scheme. Specifically, the indictment alleges that Lander used his position of trust as an attorney to convince people to invest in this business. It alleges that Lander falsely told potential investors he had contracts with major retail stores to sell GenSpec products and that a quick investment was needed to ensure that the individuals received dividends. Finally, it contends Lander used the mail to execute this scheme.
Near the close of the Government's case in chief, Lander moved the court for a judgment of acquittal. Lander argued that there was insufficient evidence to support the counts against him. He renewed this motion at the close of the Government's case. The court granted the motion as to Counts Three and Nineteen because it found that there was no mailing to support these two mail fraud counts. After the jury returned its verdict, Lander again moved the court for a judgment of acquittal. This motion asserted that the Government's evidence did not prove any scheme to defraud so he should be acquitted of the mail fraud and the accompanying money laundering counts. The motion also claimed that the Government had constructively amended the indictment by presenting at trial a scheme to defraud different from the one alleged in the indictment. The court denied this motion.
After a five-day trial, the jury convicted Lander on sixteen counts. The presentence investigation report established a guideline imprisonment range of seventy to eighty-seven months. The court sentenced Lander to an eighty-seven month term of imprisonment as to each count, to run concurrently.
Lander raises the following issues on appeal: (1) whether a constructive amendment to or material variance from the superseding indictment occurred; and (2) whether the court erred by denying his motion for judgment of acquittal because the evidence does not support any of his convictions.3
Lander argues before this court, as he did in his Motion for Judgment of Acquittal,4 that the facts proved at trial to support the River Shores mail fraud charge (Count Two) materially varied from the allegations of the superseding indictment. According to Lander, this variance substantially prejudiced his rights and his conviction on this count should be reversed. We agree.
Count Two of the indictment alleges that Lander
did knowingly and willfully devise and intend to devise a scheme to defraud and to fraudulently deprive another of the intangible right of his honest services as County Attorney for Dixie County, Florida, and to obtain money and property and by means of material false and fraudulent pretenses, representations and promises, and for the purpose of executing this scheme to defraud, and attempting to do so, did knowingly cause matters to be deposited with and delivered by the United States Postal Service
in violation of 18 U.S.C. §§ 1341 and 1346. (Dkt. 66 at 1–3.)
The indictment continues by describing this scheme to defraud. It states that Lander in his capacity as county attorney falsely represented to developers that they were required to pay a performance bond to Dixie County through him as county attorney. According to the indictment, Lander then opened the “Lander Law Firm—Special Account”; deposited $820,000 as payment for the performance bond in the account; concealed the fact he deposited the money into his own law firm...
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