Case: 12-10634 Date Filed: 03/21/2013 Page: 1 of 15
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
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`________________________
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`No. 12-10634
`________________________
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`D.C. Docket No. 8:06-cr-00026-RAL-TBM-3
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`UNITED STATES OF AMERICA,
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`RICHARD JOSEPH SOLOMON,
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`versus
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`Plaintiff - Appellee,
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`Defendant - Appellant.
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`Appeal from the United States District Court
`for the Middle District of Florida
`________________________
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`(March 21, 2013)
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`Before CARNES, HULL and FAY, Circuit Judges.
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`PER CURIAM:
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`
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`This criminal case involves a far-reaching and long-lasting scheme to
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`deceive persons about the ownership and worth of assets identified on financial
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`[DO NOT PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`
`________________________
`
`No. 12-10634
`________________________
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`D.C. Docket No. 8:06-cr-00026-RAL-TBM-3
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`UNITED STATES OF AMERICA,
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`RICHARD JOSEPH SOLOMON,
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`versus
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`
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`
`
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`
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`Plaintiff - Appellee,
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`Defendant - Appellant.
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`
`
`
`
`
`Appeal from the United States District Court
`for the Middle District of Florida
`________________________
`
`(March 21, 2013)
`
`Before CARNES, HULL and FAY, Circuit Judges.
`
`PER CURIAM:
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`
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`This criminal case involves a far-reaching and long-lasting scheme to
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`deceive persons about the ownership and worth of assets identified on financial
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`Case: 12-10634 Date Filed: 03/21/2013 Page: 2 of 15
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`statements of insurance companies and related businesses. A jury convicted
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`Richard Solomon—along with several coconspirators—of one count of conspiracy
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`to commit (i) mail fraud, in violation of 18 U.S.C. § 1341, (ii) wire fraud, in
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`violation of 18 U.S.C. § 1343, and (iii) insurance fraud, in violation of 18 U.S.C. §
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`1033(c)(1), all of which violated 18 U.S.C. § 371. Solomon was also convicted of
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`one count of conspiracy to commit money-laundering, in violation of 18 U.S.C. §
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`1956(h). He now appeals these convictions, arguing that the government presented
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`insufficient evidence to establish the conspiracy counts and his motion for
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`judgment of acquittal was improperly denied by the district court. Solomon also
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`argues that the indictment was untimely under the relevant statutes of limitations.
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`After oral argument, reviewing the record, and for the reasons that follow, we
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`affirm Solomon’s convictions.
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`I. Background
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`
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`The facts of this case are more fully set forth in United States v. Broughton,
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`689 F.3d 1260 (11th Cir. 2012), in which this Court affirmed the convictions of
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`two of Solomon’s codefendants, rejecting their claims of insufficient evidence and
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`an untimely indictment. Id. at 1263. However, a quick summary of the facts1 as
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`they relate to Solomon is helpful.
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`1 In reviewing a denial of a judgment of acquittal, this Court views the evidence in the light most
`favorable to the government. United States v. Eckhardt, 466 F.3d 938, 944 (11th Cir. 2006).
`2
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`In the early 1990s, Solomon joined Cooperativa de Ahorro y Credito Gatun
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`(“Gatun”), a Panamanian cooperative acting as a credit union. In his position at
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`Gatun, Solomon caused the cooperative to issue certificates of deposit purportedly
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`collateralized by billions of dollars of gold doré—a processed, crude bar of low-
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`grade rock that contains at least 50 percent gold and can be further refined to make
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`gold bullion. Even though the gold doré never existed, Solomon delivered a
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`master certificate to Panamanian authorities, claiming that Gatun was assigned
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`135,000 metric tons of gold doré valued at $1,080,000,000.
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`
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`In 1995, Solomon, through his companies Malik International, Inc. and
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`Malik International, S.A., agreed to rent certificates of deposit backed by Gatun’s
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`false collateral to Michael Ernest Zapetis, Sr. (“Zapetis”) and his wife, Karen
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`Carazo Zapetis (“Carazo”), while Solomon maintained ownership and control of
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`the Gatun CDs. Zapetis and Carazo had previously created West Indian
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`companies, including American Indemnity Company, Ltd (“American
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`Indemnity”), Star Insurance Company (“Star Insurance”), and Global Insurance
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`Company (“Global Insurance”).2 Zapetis and Carazo also formed Costa Rican
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`subsidiary companies, including Capitales Uno de America (“Cap Uno”), to hold
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`and claim the rented assets, and formed Consorcio de Segurus Polaris, S.A.
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`2 While the names of these companies suggested that they were insurance companies, the West
`Indian governments did not require the companies to be licensed as insurance companies until
`1997, at which point the minister of finance rejected their applications for licenses to sell
`insurance.
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`3
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`(“Consorcio”), a Costa Rican company which provided administrative support for
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`the “insurance” companies.
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`While Solomon’s role in the conspiracy was often just leasing uncapitalized
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`Gatun CDs to Zapetis’s and Carazo’s companies, Solomon was more active in
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`other transactions. In late 1995, Solomon, Zapetis and Carazo agreed to have
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`American Indemnity become a subsidiary of International Standards Group
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`(“ISG”)—with Solomon owning fifty percent of ISG stock—and to have American
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`Indemnity sell reinsurance through a London broker. Solomon, through his Malik
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`companies, provided Cap Uno with a Gatun CD purportedly worth $40 million, so
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`American Indemnity could show the assets on its balance sheet. Solomon and
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`Zapetis then secured an audited financial statement for American Indemnity by
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`having Gatun “verify” that the Gatun CDs issued to Cap Uno were backed by
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`assets.3
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`Solomon also had an active role in allowing Star Insurance to front as a
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`reinsurer. World Vision Entertainment, Inc. (“World Vision”)4 purchased Global
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`Insurance from Zapetis and Carazo, and purchased Capitales Nueve de America
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`(“Cap Nueve”) from Consorcio. Jaillet knew that Global Insurance only rented the
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`3 After Panamanian authorities intervened and took control of Gatun for issuing unauthorized
`CDs, Solomon wrote to the London broker claiming that the intervention did not extend to the
`Gatun CDs and the CDs were backed by the gold doré.
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` World Vision was a Florida-based company operated by Alfred Jaillet, who pleaded guilty and
`testified at trial.
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` 4
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`4
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`Gatun CDs and could not use them to pay claims, but it used the CDs to create the
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`illusion that Global Insurance had assets that backed World Vision’s obligations on
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`its loans. Zapetis, Carazo, and Jaillet also agreed that Star Insurance—still owned
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`by Zapetis and Carazo—would reinsure Global Insurance’s liabilities in exchange
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`for a portion of what investors paid for Global Insurance’s “protection.”
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`In an effort to expand Star Insurance’s ability to sell reinsurance, in
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`December 1998, Star Insurance acquired an additional $200 million in Gatun CDs
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`from Solomon. Solomon personally delivered the CDs to Zapetis and signed the
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`asset investment agreements. Solomon, Zapetis, and Carazo discussed how
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`Solomon’s assets would not be at risk from Star Insurance’s reinsurance
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`commitments and that Solomon would still be paid rent on the CDs. When World
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`Vision defaulted on its notes, its victims were referred to Gatun, and Gatun denied
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`that Star Insurance had ever guaranteed World Vision’s notes.
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`In 1996, the Internal Revenue Service began its investigation that led to the
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`charges against Solomon. The investigators obtained Costa Rican bank records
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`from 1998 and 1999, which demonstrated payments made from Consorcio to
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`Solomon (or the Malik companies under Solomon’s control). Solomon agreed to
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`be interviewed by law enforcement during the investigation and later again after
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`his arrest. He testified in his own defense at trial.
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`5
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`On January 17, 2006, a grand jury returned the two-count indictment against
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`Solomon and nine others. Prior to trial, Solomon adopted the ultimately
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`unsuccessful motions to dismiss the indictment, in which Zapetis and William
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`Broughton argued that the statute of limitations had expired prior to the indictment.
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`Only four of those indicted proceeded to trial—Solomon, Broughton, Richard
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`Peterson, and William Clancy. A jury convicted Solomon, William Broughton,
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`and Peterson on both counts and Clancy on the first count. Solomon was
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`sentenced to 60 months’ imprisonment on the first count and 66 months’
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`imprisonment as to the second count, to run concurrently. Solomon timely appeals
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`his convictions. 5
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`II. Standard of Review
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`This Court reviews challenges to the sufficiency of the evidence de novo,
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`viewing the evidence in the light most favorable to the verdict, to determine if “any
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`rational trier of fact could have found the essential elements of the crime beyond a
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`reasonable doubt.” Eckhardt, 466 F.3d at 944 (quotation omitted). “[T]he
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`question is whether reasonable minds could have found guilt beyond a reasonable
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`doubt, not whether reasonable minds must have found guilt beyond a reasonable
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`doubt.” United States v. Bacon, 598 F.3d 772, 775 (11th Cir. 2010) (quoting
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`United States v. Ellisor, 522 F.3d 1255, 1271 (11th Cir. 2008)). Moreover, when a
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`5 Broughton and Peterson also appealed and this Court upheld their convictions in Broughton.
`689 F.3d at 1263.
`
`
`
`6
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`defendant testifies in his own defense, the jury is free to disbelieve him and
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`consider his statements as untruthful and as substantive evidence of the defendant’s
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`guilt. Id. at 776 (citation omitted).
`
`
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`The denial of a motion to dismiss the indictment is reviewed for an abuse of
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`discretion, although the legal sufficiency of the allegations in the indictment is a
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`question of law reviewed de novo. United States v. York, 428 F.3d 1325, 1331 n.8,
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`(11th Cir. 2005) (citations omitted). A district court’s interpretation of a statute of
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`limitations is reviewed de novo. United States v. Harriston, 329 F.3d 779, 783
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`(11th Cir. 2003) (citation omitted).
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`III. Discussion
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`On appeal, Solomon argues the government did not present sufficient
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`evidence—as required for a conspiracy conviction—to establish Solomon’s intent
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`to defraud, knowledge of the scheme, or a meeting of the minds with the
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`coconspirators. Alternatively, Solomon argues that the government failed to
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`establish the single conspiracy charged in the indictment. Finally, Solomon argues
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`that the district court erred when it denied the motions to dismiss the indictment as
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`barred by the applicable limitations period. We address each of Solomon’s
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`arguments in order.
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`A.
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`7
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`Case: 12-10634 Date Filed: 03/21/2013 Page: 8 of 15
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`Sufficient evidence existed to establish Solomon’s intent to defraud,
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`knowledge of the scheme, and a meeting of the minds with the coconspirators in
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`Count I of the indictment. Count I charges Solomon with conspiracy to commit
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`mail fraud, wire fraud, and insurance fraud. To prove a conspiracy in violation of
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`18 U.S.C. § 371, the evidence must show “(1) an agreement among two or more
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`persons to achieve an unlawful objective; (2) knowing and voluntary participation
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`in the agreement; and (3) an overt act by a conspirator in furtherance of the
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`agreement.” United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003)
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`(citation omitted).
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`To prove a conspiracy to commit wire fraud, the government need not
`demonstrate an agreement specifically to use the interstate wires to
`further the scheme to defraud; it is enough to prove that the defendant
`knowingly and voluntarily agreed to participate in a scheme to
`defraud and that the use of the interstate wires in furtherance of the
`scheme was reasonably foreseeable.
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`Id. (citations omitted).
`
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`The existence and participation in a conspiracy may be proved by
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`circumstantial evidence and inferred from concert of action. See, e.g., United
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`States v. Guerra, 293 F.3d 1279, 1285 (11th Cir. 2002) (citation omitted).
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`Accordingly, the government can establish a defendant’s intent to defraud,
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`knowledge of the scheme, and a meeting of the minds with circumstantial
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`evidence, and a jury can infer the elements from the defendant’s conduct. See,
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`e.g., United States v. Maxwell, 579 F.3d 1282, 1301 (11th Cir. 2009) (“A jury may
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`
`
`8
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`infer an intent to defraud from the defendant’s conduct.” (citations omitted));
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`United States v. Suba, 132 F.3d 662, 673 (11th Cir. 1998) (“Guilty knowledge can
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`rarely be established by direct evidence, especially in respect to fraud crimes
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`which, by their very nature, often yield little in the way of direct proof.” (citation
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`omitted)); United States v. Hawkins, 905 F.2d 1489, 1496-97 (11th Cir. 1990)
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`(“The Government need not produce direct proof of scienter in a fraud case,
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`however; circumstantial evidence of criminal intent can suffice.” (citation
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`omitted)). Also, “[e]vidence that a defendant personally profited from a fraud may
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`provide circumstantial evidence of an intent to participate in that fraud.” United
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`States v. Naranjo, 634 F.3d 1198, 1207 (11th Cir. 2011) (citation omitted).
`
`In the instant case, the government has clearly presented sufficient evidence
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`to sustain Solomon’s conviction as to Count I. The evidence at trial established
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`that Solomon provided false information to Panamanian authorities regarding the
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`value of the Gatun master certificate. He also rented multiple Gatun CDs to
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`Zapetis and Carazo, personally profiting by the receipt of rent payments from
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`Consorcio.6 Moreover, Solomon owned 50% of ISG, which in turn owned
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`American Indemnity, which sold reinsurance despite being undercapitalized and
`
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`6 Solomon testified that the gold doré backing the master certificate belonged to Robert Cheney,
`and Cheney assigned the master certificate to Solomon. However, no record of any payment to
`Cheney was established and Solomon admitted—during a post-arrest interview—that he had lost
`contact with Cheney. The jury apparently did not find Solomon’s trial testimony convincing,
`which the jury was free to do.
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`
`
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`9
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`having no intent to pay on claims. Solomon drafted a letter to deflect the London
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`broker’s concern over the Panamanian government’s intervention of Gatun.
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`Carazo testified that Solomon had been a full partner in the scheme to have ISG,
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`American Indemnity, and Cap Uno sell reinsurance through the London broker
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`based on fraudulent balance sheets claiming ownership of $40 million in Gatun
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`CDs. Finally, Solomon admitted that he knew Zapetis and Carazo would use the
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`Gatun CDs to issue financial guarantees and sell reinsurance, and he contributed to
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`their effort by providing additional Gatun CDs to Star Insurance for $200 million.
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`As to the indictment’s second count, in order to sustain the conviction for
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`conspiracy to commit a money-laundering offense,7 the government had to
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`establish (1) an agreement existed between two or more persons to commit a
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`money-laundering offense and (2) knowing and voluntary participation in that
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`agreement by the defendant. United States v. Johnson, 440 F.3d 1286, 1294 (11th
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`Cir. 2006) (citation omitted). The government did so in the present case by
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`establishing that Solomon and his Malik companies received rental payments from
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`the Gatun CDs, which were used to defraud consumers. The government also
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`established that Solomon knew that Zapetis and Carazo were using the Gatun CDs
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`to fraudulently inflate the financial statements of insurance companies and that
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`7 The underlying money-laundering offense alleged violations of 18 U.S.C. §§ 1956(a)(2)(B)(I)
`and 1957.
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`
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`10
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`Solomon participated in the scheme by contributing additional Gatun CDs,
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`contingent on his receiving rental fees.
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`Solomon’s arguments of insufficient evidence seem to be that the defendants
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`presented enough evidence to rebut all of the government’s allegations. Alas,
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`Solomon’s argument is misplaced as it focuses on the contrary evidence that he
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`presented at trial, not the lack of evidence presented by the government. As
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`previously stated, the jury was free to disbelieve Solomon’s testimony and
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`evidence. The government clearly presented sufficient evidence so that a rational
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`jury could have found him guilty of both counts beyond a reasonable doubt. Thus,
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`the district court did not err in denying Solomon’s motion for acquittal as to both
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`counts in the indictment.
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`B.
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`Solomon argues alternate grounds for reversal exist because the government
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`failed to establish the single conspiracy charged in the indictment, instead
`
`establishing multiple, smaller conspiracies. He further argues that by failing to
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`establish the single conspiracy, a material, prejudicial variance existed between the
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`proof at trial and the indictment. Again, Solomon’s argument is unconvincing.
`
`“A material variance between an indictment and the government’s proof at
`
`trial occurs if the government proves multiple conspiracies under an indictment
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`alleging only a single conspiracy.” United States v. Castro, 89 F.3d 1443, 1450
`
`
`
`11
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`Case: 12-10634 Date Filed: 03/21/2013 Page: 12 of 15
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`(11th Cir. 1996) (citation omitted). “We will not reverse convictions based on a
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`variance unless the variance was (1) material and (2) substantially prejudiced the
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`defendants.” United States v. Coy, 19 F.3d 629, 633 (11th Cir. 1994) (citation
`
`omitted).
`
`“The question of whether the evidence establishes a single conspiracy is a
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`factfinding for the jury and . . . there will be no variance if, viewing the evidence in
`
`the light most favorable to the Government, a reasonable trier of fact could have
`
`found beyond a reasonable doubt the existence of a single conspiracy.” United
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`States v. Adams, 1 F.3d 1566, 1584 (11th Cir. 1993) (citations omitted). To
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`determine if a jury could have reasonably found a single conspiracy, we consider
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`“(1) whether a common goal existed; (2) the nature of the underlying scheme; and
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`(3) the overlap of participants.” United States v. Moore, 525 F.3d 1033, 1042
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`(11th Cir. 2008) (citation omitted). However, “[i]f a defendant’s actions facilitated
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`the endeavors of other co-conspirators, or facilitated the venture as a whole, a
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`single conspiracy is established” and “[i]t is irrelevant that the particular co-
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`conspirators did not participate in every stage of the conspiracy.” Id. (quotation
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`and citation omitted).
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`In the instant case, the evidence established that the Gatun CDs issued by
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`Solomon were the basis for falsifying the insurance companies’ financial
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`statements which was the crux of the criminal activity in the indictment.
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`12
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`Solomon’s interactions with Zapetis and Carazo, as well as his active role in
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`facilitating the American Indemnity and Global Insurance fraudulent activities,
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`support the jury’s finding of a single conspiracy. It is irrelevant that the
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`government did not present evidence of Solomon’s interaction with each and every
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`individual, at each stage of the conspiracy. Sufficient evidence was presented for a
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`reasonable jury to find the existence of the single, charged conspiracy.
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`Even if Solomon had established a material variance, he would still have to
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`establish that he was substantially prejudiced by the variance. Substantial
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`prejudice occurs when (1) the defendants are deprived of fair notice of the charged
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`crimes; or (2) when the defendants are prejudiced by the spillover of the proof of
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`other crimes. Coy, 19 F.3d at 634. 8 When determining if a defendant was
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`prejudiced by spillover evidence, this Court has looked to the adequacy of the jury
`
`instructions and if the jury returned divergent verdicts. United States v. Glinton,
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`154 F.3d 1245, 1252 (11th Cir. 1998).
`
`In the instant case, Solomon cannot establish any prejudice from any
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`potential variance. The court instructed the jury
`
`that proof of several separate conspiracies is not proof of the single
`overall conspiracy charged in Count I unless one of the several
`conspiracies which is proved is a single conspiracy which Count I
`charges. . . . and if you should find that a particular Defendant was a
`
`
`8 Solomon does not argue that he was denied fair notice, but that he was prejudiced by spillover
`evidence and having to defend against the actions of other individuals involved in other
`conspiracies.
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`13
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`Case: 12-10634 Date Filed: 03/21/2013 Page: 14 of 15
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`member of some other conspiracy, not the one charged in Count I of
`the Indictment then you must acquit that Defendant as to Count I.
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`The court gave the same instruction as to Count II. These instructions are similar
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`to the instructions we have previously found adequate to prevent spillover. See
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`Glinton, 154 F.3d at 1252. Moreover, the jury convicted Solomon, Broughton, and
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`Peterson on both counts, but found Clancy not guilty as to Count II. This further
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`suggests that “the jury carefully followed the court’s limiting instructions and had
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`no difficulty compartmentalizing the evidence presented.” Id. Thus, there was no
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`material, prejudicial variance between the proof at trial and the single conspiracy
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`charged in the indictment.
`
`C.
`
`
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`Lastly, Solomon challenges the district court’s denial of the defendants’
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`motions to dismiss the indictment as barred by the applicable statutes of
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`limitations. We addressed this issue at length and affirmed the district court’s
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`order on these same motions in Broughton. See 689 F.3d at 1272-76. We found
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`that the statute of limitations was properly tolled and that the indictment was
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`timely, regardless of whether the five-year or the ten-year statute of limitation
`
`applied to Count I. Id. Solomon introduces no new arguments that warrant us to
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`alter our prior ruling regarding the district court’s order. See This That & the
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`Other Gift & Tobacco, Inc. v. Cobb Cnty, Ga., 439 F.3d 1275, 1283-84 (11th Cir.
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`2006) (“When a court decides a question of law, the only means by which the law-
`
`
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`14
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`Case: 12-10634 Date Filed: 03/21/2013 Page: 15 of 15
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`of-the-case doctrine can be overcome is if: (1) since the prior decision, new and
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`substantially different evidence is produced, or there has been a change in the
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`controlling authority; or (2) the prior decision was clearly erroneous and would
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`result in a manifest injustice.” (quotation omitted)). Thus, we again find no error
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`in the district court’s denial of the defendants’ motions to dismiss the indictment.
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`IV. Conclusion
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`Accordingly, Solomon’s convictions are
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`AFFIRMED.
`
`15
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