from the United States District Court for the Southern
District of Florida D.C. Docket No. 1:13-cr-20063-DLG-1
JORDAN, HULL, and GILMAN, [*] Circuit Judges.
GILMAN, Circuit Judge
a real estate fraud case. A jury convicted Lawrence Foster of
defrauding investors with regard to real estate located on
the island of Rum Cay in the Bahamas. Foster appeals the
district court's (1) denial of his three motions for a
judgment of acquittal; (2) determination of the loss amount,
restitution award, and his sentence; and (3) denial of his
motion to vacate the verdict due to alleged juror misconduct.
For the reasons set forth below, we AFFIRM
the judgment of the district court.
served as president of Paradise Is Mine, Inc. (PIM), a
Florida corporation that offered investments in Rum Cay land.
(R. 452, USCA 2752; R. 528, USCA 4931) The company's
website proclaimed that PIM "own[ed] in excess of 16,
000 acres of prime, investment grade real estate." (R.
455, USCA 3317) PIM solicited investors online and by
telephone, offering them two investment opportunities: they
could either (1) purchase Rum Cay land or (2) lend money to
PIM in return for a security interest in the land. PIM
targeted people who had recently lost money in the stock or
precious-metals markets, giving them an above-market-value
credit for any stock or precious-metals investments
transferred to PIM as consideration. (R. 452, USCA 2689-90,
2698-2700, 2969, 2974-75)
used several marketing strategies, including celebrity
endorsements, to promote PIM. One endorsement involved Joe
Montana, a professional-football icon, who agreed to endorse
PIM in return for a parcel of Rum Cay land. (R. 456, USCA
3417-58) Foster then represented to prospective investors
that Montana had purchased Rum Cay land from PIM. (R. 452,
USCA 2696-98, 2705-06, 2733; R. 453, USCA 2816-17, 2860-61,
2897, 2910-12; R. 454, 2994-95, 3038- 40, 3060; R. 455, USCA
3317-19, 3325-29) Several investors testified at trial that
they had invested with PIM partly because they believed that
celebrities like Montana had done so. Id.
also represented to prospective investors that hundreds of
news organizations, including USA Today and The
Wall Street Journal, had "featured" articles
about PIM within the past two years. (R. 454, 3007-14; R.
455, USCA 3318-22). Images of articles appeared on PIM's
website, and Foster himself emailed articles to prospective
investors who expressed hesitation about investing.
Id. Several investors later testified that they had
invested with PIM partly because they had believed that the
articles gave PIM credibility. (R. 453, USCA 2898, 2911-16;
R. 454, USCA 2994-96, 3007-14)
fact, was a scam. The land that it purported to own was
actually held in the name of Sunward Holdings, a Bahamian
company owned by a convicted felon and embroiled in
litigation over title to the land. (R. 457, USCA 3662-71; R.
458, USCA 3897-3906, 3917, 3947-54; 3662; R. 459, USCA 3994-
4001, 4072) PIM did not inform investors that Sunward held
the disputed title to the land until after they had
transferred cash, stock, retirement accounts, or other value
to PIM. (R. 453, USCA 2756, 2809-10, 2826-30, 2852-56, 2861,
2870-72, 2899-2909; R. 454, USCA 2958-59, 3038-48) Moreover,
no reporter for either USA Today or The Wall
Street Journal had ever written anything about PIM or
the land. (R. 455, USCA 3251-54, 3270-74) Foster created some
of the articles himself. (R. 455, USCA 3320-22; R. 458, USCA
3854) Others were created by a public-relations firm that he
had hired. (R. 235, USCA 1133, 1150-53)
the investors ever received title to the Rum Cay land. Those
who agreed to purchase land from PIM instead received an
option contract under which they could, at least in theory,
purchase land from Sunward and apply for a title from the
Bahamian government, which in turn would impose a stamp tax
of 10% of the purchase price. But PIM failed to provide the
investors with the documentation they needed to exercise
their options. (R. 456, USCA 3430-48)
who made loans to PIM received security agreements, but the
Rum Cay land securing the loans belonged to Sunward, putting
the collateral out of reach. Several such investors testified
that they did not even know the collateral's location.
(R. 453, USCA 2829-30; R. 571, USCA 5447-48, 5456-57).
other hand, PIM's salespeople received exorbitant
commissions of up to 50% of the price of the investments they
sold. (R. 459, USCA 4037) And Foster withdrew over a million
dollars in cash from PIM's accounts and transferred
another million dollars or more to jewelry and rare-coin
companies with no apparent benefit to PIM's investors.
(R. 456, USCA 3486-3500; R. 519, USCA 4710-15) He also made
no significant improvements to the Rum Cay land and, from
2008 to 2012, filed no corporate or personal income-tax
returns. (R. 455, USCA 3295)
was charged in a superseding indictment with one count of
conspiring to commit wire fraud, in violation of 18 U.S.C.
§ 1349, and with six counts of wire fraud, in violation
of 18 U.S.C. § 1343. (R. 72, USCA 822-33) A jury
convicted him on all counts. (R. 196, USCA 834) Because of an
error in the exhibits given to the jury, however, the
district court ordered a new trial. (R. 272, USCA 1823) At
the second trial, Foster twice moved for a judgment of
acquittal, first at the close of the government's proof
and again at the close of his own. (R. 457, USCA 3651; R.
461, USCA 4123) The court denied both motions. (R. 457, USCA
3655;R. 461, USCA 4126) A jury again convicted Foster on all
counts. (R. 375, USCA 2186-87)
days after the trial's conclusion, the district court
received a letter from a juror alleging that some of the
other jurors had bullied her into reaching a guilty verdict,
which she now regretted. (R. 383, USCA 2201-04) This prompted
Foster to file a motion to vacate the verdict. The court
declined to do so. (R. 390, USCA 2239-47; R. 421, USCA 2419)
Foster then moved a third time for a judgment of acquittal,
arguing that insufficient evidence supported his convictions.
(R. 403, USCA 2302-20) The court denied that motion as well.
(R. 471, USCA 4355)
sentencing hearing that spanned three days, the district
court determined the loss amount to be the full value of the
victims' investments. (R. 560, USCA 5244, 5263-65) It
ordered Foster to pay restitution in the amount of $8, 190,
110 (the full amount of the loss, less about $280, 000
previously returned to a few of the investors in the form of
loan repayments) and sentenced him to 152 months in prison.
(R. 560, USCA 5254-55, 5265) This timely appeal followed. (R.
543, USCA 5063)