931 F.3d 1245
11th Cir.2019Background
- Feldman invested in two Miami Beach nightclubs that used Eastern European "B-girls" to lure patrons and induce expensive drink purchases; alleged tactics included hiding menus, forging or guiding signatures, and charging cards without consent.
- A grand jury indicted Feldman for conspiracy to commit wire fraud, conspiracy to commit money laundering (two theories: concealment via financial transactions and international transfers), and multiple wire-fraud counts.
- At the first joint trial, the jury convicted Feldman of wire-fraud conspiracy and one money-laundering theory (international transfers), acquitted on individual wire-fraud counts, and did not express a verdict on the concealment theory; the convictions were reversed in Takhalov for a jury-instruction error.
- After redaction and retrial (Feldman tried individually), testimony (notably from cooperating co-conspirator Simchuk) and documentary evidence tied Feldman to management, financial control, creation of a shell company (Ieva Marketing), and knowledge of the scheme; the jury convicted Feldman of both conspiracy counts (wire fraud and money laundering under both theories).
- The district court calculated a Guidelines range (46–57 months) but imposed a 100‑month sentence based on an upward variance, citing perjury, loss/victim enhancements, and a sophisticated‑laundering enhancement.
Issues
| Issue | Plaintiff's Argument (Feldman) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Double jeopardy: retrial on concealment money‑laundering theory | First jury’s silence on concealment theory plus guilty on international theory amounted to termination of jeopardy; retrial on concealment violates Double Jeopardy | No implied acquittal on concealment; Feldman impliedly consented to jury dismissal; retrial permitted | Affirmed — no double jeopardy bar (no implied acquittal; Feldman consented to jury dismissal) |
| Sufficiency of evidence for wire‑fraud and money‑laundering conspiracies | Evidence did not show fraudulent misrepresentations about prices/transactions or Feldman's knowledge; B-girls’ acts were outside Feldman’s scope | Testimony (Simchuk, B-girls), financial records, and creation/use of Ieva Marketing provided sufficient proof of agreement, knowledge, and laundering objects | Affirmed — evidence sufficient for both wire‑fraud conspiracy and both money‑laundering theories |
| Constructive amendment of wire‑fraud conspiracy count | Redaction, jury instructions, and prosecutor arguments broadened the indictment beyond grand‑jury charging (alleged shift from Takhalov theory) | Redacted count did not change materially; Feldman invited the jury instruction; any minor variances did not prejudice him | Affirmed — no constructive amendment (invited error and no prejudicial variance) |
| Prosecutorial misconduct: literary allusions (Fagin/Oliver Twist) | Allusions to Fagin (a Jewish villain) injected ethnic/stereotypical prejudice depriving Feldman of fair trial | Remarks were brief, non‑ethnic, illustrative of a ringleader concept; no intent to inflame; plain‑error standard not met | Affirmed — no due‑process violation (brief, anodyne references; no substantial prejudice) |
| Sentence (Guidelines enhancements and variance) | Challenges to loss amount, victim count, obstruction/perjury finding, sophisticated‑laundering enhancement, and substantive reasonableness | Sentencing findings supported by record (victim list, Ieva Marketing, district court credibility findings of perjury); variance justified by perjury, lack of remorse, harm | Affirmed — district court did not err on enhancements or abuse discretion in upward variance/sentence |
Key Cases Cited
- United States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016) (reversal of convictions in the first trial for refusal to give B-girl nondisclosure instruction)
- Green v. United States, 355 U.S. 184 (1957) (double‑jeopardy implications of jury verdicts silent on some charges)
- Wade v. Hunter, 336 U.S. 684 (1949) (jeopardy and mistrial discharge without defendant consent)
- Dunnigan v. United States, 507 U.S. 87 (1993) (perjury as basis for §3C1.1 obstruction enhancement and required findings)
- Neder v. United States, 527 U.S. 1 (1999) ("scheme or artifice to defraud" incorporates common‑law fraud concepts)
- Hammerschmidt v. United States, 265 U.S. 182 (1924) ("to defraud" means depriving another of property rights by deceit)