Case: 17-15768 Date Filed: 01/02/2019 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15768
________________________
D.C. Docket No. 1:16-cr-20957-CMA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHELDON RICARDO PALMER,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 2, 2019)
Before JORDAN, GRANT, and HULL, Circuit Judges.
PER CURIAM:
Sheldon Palmer appeals his convictions on 13 counts of wire fraud in violation
of 18 U.S.C. §§ 1343 & 2, and 3 counts of aggravated identity theft in violation of
Case: 17-15768 Date Filed: 01/02/2019 Page: 2 of 5
18 U.S.C. § 1028A(a)(1). Following our review of the record, and with the benefit
of oral argument, we affirm. Because we write for the parties, we assume their
familiarity with the issues presented, and set out only what is necessary to explain
our decision.
First, Mr. Palmer argues that there was a constructive amendment of the
indictment by the district court and the government as to the wire fraud counts
because he was tried and convicted for “receiving” the cash from the fraudulent
money transfers, and not “transmitting” or “sending” any money as charged in the
indictment. See Appellant’s Br. at 31-36. A constructive amendment, generally
speaking, occurs when the essential elements of the offense contained in the
indictment are altered to broaden the possible bases for conviction beyond what is
contained in the indictment. See, e.g., United States v. Madden,
733 F.3d 1314, 1318
(11th Cir. 2013).
Here there was no constructive amendment. The indictment charged that Mr.
Palmer, as part of a scheme to defraud, caused the transmission of wire
communications “for” 13 money transfers. The evidence at trial showed that Mr.
Palmer went to Wal-Mart stores and, by answering security questions and providing
identification (sometimes with a false identity), obtained cash from a fraudulent
money transfer. The evidence, including the still shots from the Wal-Mart security
videos, also showed that Mr. Palmer saw Wal-Mart employees typing information
2
Case: 17-15768 Date Filed: 01/02/2019 Page: 3 of 5
on a computer for the purpose of finalizing the money transfer and giving him the
money. The wire communications charged in the indictment were the transmissions
sent from the Wal-Mart stores in South Florida to MoneyGram in Minnesota, and
by showing up at the Wal-Mart stores and requesting the payment from the money
transfers in question, Mr. Palmer caused (or at least aided and abetted) those wire
communications. Stated differently, the wire communications charged in the wire
fraud counts would not have taken place without Mr. Palmer showing up to request
payment from the money transfers.
Second, Mr. Palmer contends that the district court erred in admitting, as
inextricably intertwined, evidence of more than 20 uncharged instances where he
went to a Wal-Mart store to pick up cash from a money transfer. See Appellant’s
Br. at 38-42. We do not find any abuse of discretion. The uncharged pickups were
temporally consistent with the indictment – they took place between August 10,
2014, and November 30, 2015, while the wire fraud counts involved pickups
between August 17, 2014, and November 30, 2015 – and helped to establish Mr.
Palmer’s methods. See United States v. Ford,
784 F.3d 1386, 1394 (11th Cir. 2015).
Third, Mr. Palmer asserts that the district court erred in certain of its
evidentiary rulings. See Appellant’s Br. at 43-49. We again find no abuse of
discretion. We address the challenge to Government Exhibits 26 and 30 and affirm
as to the other evidentiary rulings without further discussion.
3
Case: 17-15768 Date Filed: 01/02/2019 Page: 4 of 5
There is some authority supporting the admission of Government Exhibits 26
and 30 as business records under Rule 803(6), e.g., United States v. Fuji,
301 F.3d
535, 539 (7th Cir. 2002), but even if they were not admissible on that basis, they
were likely admissible as summary exhibits under Rule 1006. Significantly, there is
no claim that the original business records from which Government Exhibits 26 and
30 were derived – the records concerning the money transfer transactions – were
themselves inadmissible. See generally Peat, Inc. v. Vanguard Research, Inc.,
378
F.3d 1154, 1160 (11th Cir. 2004). Given that the original business records were not
prepared for litigation, Government Exhibits 26 and 30 were not “testimonial” in the
Sixth Amendment sense, and Mr. Palmer’s Confrontation Clause claim under
Crawford v. Washington,
541 U.S. 36 (2004), fails. See United States v. Nixon,
694
F.3d 623, 634-35 (6th Cir. 2012); United States v. Jamieson,
427 F.3d 394, 411 (6th
Cir. 2005).
Fourth, Mr. Palmer says that the evidence on the wire fraud charges was
insufficient because the government did not prove that he knew that wire
transmissions would be sent from Southern Florida to Minnesota. See Appellant’s
Br. at 49-52. We reject this claim because it is founded on a misapprehension of
what proof is necessary in a wire fraud case like this one. “Where one does an act
with knowledge that the use of the [interstate wires] will follow in the ordinary
course of business, or where such use can reasonably be foreseen, even though not
4
Case: 17-15768 Date Filed: 01/02/2019 Page: 5 of 5
actually intended, then he ‘causes’ the [interstate wires] to be used.” United States
v. Ross,
131 F.3d 970, 985 (11th Cir. 1997) (citation omitted). See also United States
v. Hill,
643 F.3d 807, 862 (11th Cir. 2011). There was sufficient evidence for the
jury to find either that Mr. Palmer knew that wire transmissions would be used or
that such use was reasonably foreseeable to him.
Finally, Mr. Palmer claims that the cumulative effect of the errors he has
identified warrant reversal, even if one or more of them individually do not. See
Appellant’s Br. at 52-53. Because we have found no errors, we reject Mr. Palmer’s
cumulative error argument.
AFFIRMED.
5
