Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, September 10, 2019

Waters: Affirming Wire Fraud Conviction Over Takhalov-Based Challenges

In United States v. Waters, No. 18-11333 (Sept. 10, 2019) (Ed Carnes, Julie Carnes, Clevenger), the Court affirmed the defendant's wire fraud conviction and sentence.

First, the Court found no abuse of discretion in declining to give the Takhalov-based wire fraud instruction proposed by the defense.  The Court found that the proposed instruction, which sought to distinguish between defrauding and deceiving, was an incomplete statement of the law and would have confused the jury.  The Court also found that the proposed instruction did not seriously impair his ability to present his theories of defense.

Second, and applying a deferential standard of review due to the defendant's failure to renew his motion for judgment of acquittal at the close of the evidence, the Court found the evidence sufficient that the defendant intended to harm the victim of the fraud.  The Court rejected the defendant's argument that, under Takhalov, lies about his creditworthiness to a lender did not affect the benefit of the bargain between the parties, as there was ample evidence that these lies sought to cover up an issue that threatened to kill the deal.

Third, the Court rejected the defendant's argument that the district court erred by not making an on-the-record waiver inquiry about his decision not to testify at trial.  Although there is no per se rule requiring that inquiry, the defendant argued this case was exceptional because he was the only person in a position to refute the prosecution's case.  The Court rejected that as a ground for relief because it did not establish his decision to remain silent was involuntarily made.

Lastly, the Court found no plain error with regard to an erroneous factual comment made by the judge after sentence had been imposed.  The judge inaccurately stated that the defendant had gotten a break because the loan had been repaid, when in fact there was never a loan to repay.  But this "slip up" was a "stray comment" at the end of sentencing, not a relevant factual finding.  And the Court found no prejudice because the judge otherwise had an open mind and explained why he thought the defendant did deserve leniency.