United States v. Manuel R. Fernandez ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 19-15044; 19-15165
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL R. FERNANDEZ,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:17-cr-20780-MGC-2
____________________
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2 Opinion of the Court 19-15044
Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and BRASHER,
Circuit Judges.
PER CURIAM:
Manuel Fernandez appeals his conviction and 75-month to-
tal sentence for conspiracy to receive bribes, in violation of 18
U.S.C. § 371, bribery, in violation of 18 U.S.C. § 201(b)(2)(C), mak-
ing a false statement to a federal agency, in violation of 18 U.S.C. §
1001(a)(2), wire fraud, in violation of 18 U.S.C. § 1343, and aggra-
vated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). After
careful review, and with the benefit of oral argument, we affirm.
I.
On November 2, 2017, a federal grand jury in the Southern
District of Florida returned an indictment charging Manuel Fernan-
dez with one count of conspiracy to commit an offense against the
United States, i.e., receiving bribes, in violation of 18 U.S.C. § 371(Count One), fifteen counts of bribery, in violation of 18 U.S.C. §
201(b)(2)(C) (Counts Seventeen though Thirty-One), one count of
making false statements in a matter within the jurisdiction of the
Federal Aviation Administration (“FAA”) and U.S. Department of
Transportation (“DOT”), in violation of 18 U.S.C. § 1001(a)(2)
(Count Thirty-Two), two counts of wire fraud, in violation of 18
U.S.C. § 1343 (Counts Thirty-Three and Thirty-Four), and two
counts of aggravated identity theft, in violation of 18 U.S.C. §
1028A(a)(1) (Counts Thirty-Five and Thirty-Six). The indictment
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19-15044 Opinion of the Court 3
sought forfeiture of any property constituting or derived from pro-
ceeds traceable to the conspiracy, bribery, and wire fraud counts.
Fernandez worked at the FAA. The FAA oversees a vast ar-
ray of businesses that operate in the aviation industry in the United
States, including repair stations. Avcom Avionics & Instruments,
Inc. (“AVCOM”) was a repair station based in Doral, Florida.
AVCOM specialized in avionics, which are components used in the
navigation of an aircraft. The FAA employs Aviation Safety Inspec-
tors (“ASIs”) to inspect and oversee the operations of businesses
and entities subject to FAA regulation. ASIs have lead responsibil-
ity for overseeing the operations of FAA certified repair stations.
The FAA employed Fernandez as an ASI in Florida from August
2007 to June 2013, when he resigned.
FAA regulations barred Fernandez from accepting outside
employment with any aviation-related business in Florida, which
may be subject to inspection, licensing, certification, or other offi-
cial contact by the FAA. And that included AVCOM.
From January 2010 through June 2013, Fernandez conspired
with AVCOM’s owners, Rolando and Patricia Suarez, to receive
and accept bribes in return for Fernandez’s agreement to violate
his official duties with the FAA to advance AVCOM’s financial in-
terests. Fernandez (1) enlisted a contact who worked at Delta Air-
lines to covertly steal confidential proprietary repair manuals
owned by Delta and Honeywell, a major avionics component man-
ufacturer, directed the stolen repair manuals to AVCOM, and con-
cealed his conduct from FAA authorities by communicating over
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4 Opinion of the Court 19-15044
private e-mail addresses with his Delta contact; (2) used his position
with the FAA to access Honeywell’s web portal as another means
of attempting to steal Honeywell’s repair manuals for AVCOM’s
use; (3) agreed to attempt to influence the FAA’s review and ap-
proval process of AVCOM’s request to add a new repair specifica-
tion to its approved operations; (4) notified AVCOM of FAA in-
spections in advance; (5) revealed to AVCOM financial information
about AVCOM’s competitors to assist AVCOM in bargaining for
favorable pricing in purchasing used avionics components; (6) of-
fered to sell to AVCOM proprietary repair plans held by another
business that Fernandez had on his FAA computer; and (7) pro-
posed setting up a partnership to repair airplane glass using propri-
etary repair plans that Fernandez had obtained through an enforce-
ment action on a separate business.
As part of the bribery scheme, AVCOM compensated Fer-
nandez with items of value including cash, jewelry, clothing, Mi-
ami Heat tickets, and a four-day cruise.
Fernandez concealed both the bribery scheme and his out-
side employment with AVCOM from the FAA. His outside em-
ployment included marketing and promoting AVCOM’s business
to its existing and potential customers and serving as a point-of-
contact to such customers. He received payments in one of three
ways: (1) cash payments, (2) checks and bank transfers as his
AVCOM salary, and (3) checks and bank transfers as his mother’s
AVCOM salary. AVCOM paid Fernandez about $14,900 indirectly
by placing Fernandez’s mother, Juana Fores, on their payroll.
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Fernandez and Fores deposited the cash payments in bank accounts
controlled by either Fernandez or Fores. During an entire pay pe-
riod in June 2013 when he claimed “sick leave” with the FAA, Fer-
nandez was actually working at AVCOM. His gross pay for the
entire pay period in June 2013 was $4,052. As a result of Fernandez
taking sick leave during that pay period, his annual leave balance
and corresponding pay-out after he resigned was 80 hours higher
than it should have been. To corroborate his claim of sick leave,
he submitted an allegedly forged doctor’s note from a page of a
prescription pad stolen from a local physician.
Following a 15-day trial, a jury found Fernandez guilty on all
counts.
The district court later sentenced Fernandez to a 75-month
total sentence. In calculating that sentence, the district court added
two levels to the base offense pursuant to U.S.S.G. § 3C1.1(c), be-
cause Fernandez obstructed justice by knowingly suborning per-
jury from five family members, including testimony regarding the
source of the cash deposits into the bank accounts controlled by
Fernandez. The district court also found that Fernandez should
not be able to work in the airline industry or the airline parts indus-
try as a condition of his supervised release. Finally, the district
court entered a forfeiture order of $183,730.76 against Fernandez.
II.
We have jurisdiction under 28 U.S.C. § 1291 to review the
district court’s final judgments and authority to examine
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6 Opinion of the Court 19-15044
Fernandez’s challenges to his sentence pursuant to 18 U.S.C. §
3742(a). And the district court had jurisdiction to enter its judg-
ments pursuant to 18 U.S.C. § 3231.
III.
Fernandez appeals his conviction on four grounds. First, he
contends that the district court erroneously instructed the jury as
to his official duties. Second, Fernandez argues that the district
court incorrectly admitted evidence of his official duties. Third, he
avers that the district court improperly permitted the government
to misrepresent trial evidence in its closing argument. Finally, he
challenges the sufficiency of the evidence on his bribery, wire
fraud, and aggravated identity theft convictions.
A. Jury instruction regarding “official duty”
Counts 17-31 of the indictment charged Fernandez with vi-
olations of 18 U.S.C. § 201(b)(2)(C). That statute prohibits public
officials from receiving or agreeing to receive things of value in re-
turn for “being induced to do or omit to do any act in violation of
the official duty of such official or person.” Id. The statute does
not define “official duty” as used (and charged here) under this sub-
section.
In contrast, 18 U.S.C. § 201(b)(2)(A) prohibits receiving or
agreeing to receive things of value in return for being influenced in
the performance of any “official act.” “Official act” is a statutory
term of art defined as “any decision or action on any question, mat-
ter, cause, suit, proceeding or controversy, which may at any time
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be pending, or which may by law be brought before any public of-
ficial, in such official’s official capacity, or in such official’s place of
trust or profit.” Id. § 201(a)(3).
Fernandez submitted a proposed jury instruction that would
have applied the definition of “official act” from our pattern in-
struction O5.2 to “official duty.” That proposed instruction defined
“official duty” as follows:
To qualify as an “official duty,” the public official
must have [made a decision or taken an action]
[agreed to make a decision or take an action] on a
question, matter, cause, suit, proceeding, or contro-
versy. Further, the question, matter, cause, suit, pro-
ceeding, or controversy must involve the formal ex-
ercise of governmental power. It must be similar in
nature to a lawsuit before a court, a determination be-
fore an agency, or a hearing before a committee. It
must also be something specific which requires par-
ticular attention by a public official.
The government argued below that Fernandez “is not charged
with official act bribery” but instead, having violated his “official
duties,” “doing things that he is not authorized to do.” The gov-
ernment urged the district court not to conflate “official duty,” as
charged in this case under § 201(b)(2)(C), with “official act,” as used
in § 201(b)(2)(A). The district court rejected Fernandez’s proposed
instruction. Our task here is to review the correctness of that deci-
sion.
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8 Opinion of the Court 19-15044
We review the legal correctness of jury instructions de
novo, but review both the district court’s phrasing of a jury instruc-
tion and refusal to give a requested instruction for abuse of discre-
tion. United States v. Singer, 963 F.3d 1144, 1162 (11th Cir. 2020).
We will not reverse a district court’s decision to deny a requested
jury instruction unless all of these conditions exist: (1) “the pro-
posed instruction correctly reflects the law”; (2) the jury instruc-
tions the district court actually gave did not address the proposed
instruction”; and (3) “the district court’s refusal to give the re-
quested instruction ‘seriously impaired the defendant’s ability to
present an effective defense.’” Id. (quoting United States v.
Horner, 853 F.3d 1201, 1208 (11th Cir. 2017). In deciding whether
the district court’s chosen language substantially covered the pro-
posed instruction, we “need only ascertain whether the charge,
when viewed as a whole, fairly and correctly states the issues and
the law.” United States v. Gonzalez, 975 F.2d 1514, 1517 (11th Cir.
1992).
Fernandez’s interchangeable use of “official act” and “official
duty” is wrong. “To the extent possible, the rules of statutory con-
struction require courts to give meaning to every word and clause
in a statute.” Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm.
of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d
1190, 1195 (11th Cir. 2008). And “courts must reject statutory in-
terpretations that would render portions of a statute surplusage.”
Id. Further, “[w]here Congress includes particular language in one
section of a statute but omits it in another section of the same Act,
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19-15044 Opinion of the Court 9
it is generally presumed that Congress acts intentionally and pur-
posely in the disparate inclusion or exclusion.” Russello v. United
States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim
Bo, 472 F.2d 720, 722 (5th Cir. 1972)).
Those canons of construction hold true here because sub-
sections 201(b)(2)(A) and 201(b)(2)(C) apply to different types of
bribery. The Second Circuit illustrated this distinction in analyzing
subsections (A) and (C) of § 201(b)(1), which criminalizes the brib-
ing or offering of a bribe to a public official. While subsection
201(b)(1)(A) requires intent “to influence any official act,” subsec-
tion 201(b)(1)(C) requires intent “to induce” a “public official . . . to
do or omit to do any act in violation of [his] lawful duty.” 18 U.S.C.
§ 201(b)(1). Although those provisions “undoubtedly overlap in
some considerable measure,” the Second Circuit noted that subsec-
tion (A) covers “case[s] of bribes regarding decisions involving the
exercise of judgment or discretion,” while subsection (C) applies to
“case[s] of bribes to induce actions that directly violate a specific
duty.” United States v. Alfisi, 308 F.3d 144, 151 n.3 (2d Cir. 2002).
The same is true for subsections 201(b)(2)(A) and
201(b)(2)(C). (Though unlike subsection 201(b)(2)(C), which refer-
ences a public official's “official duty,” subsection 201(b)(1)(C) uses
the phrase “lawful duty.”) Although the term “official duty” is not
statutorily defined, its ordinary meaning encompasses a public of-
ficial’s job responsibilities as dictated by governing statutes, rules,
and regulations. See Official, Webster’s New Int’l Dictionary (2d
ed. 1959) (“Of or pertaining to an office, position, or trust;
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10 Opinion of the Court 19-15044
connected with holding an office; as, official duties, or routine.”);
Duty, id. (“That which is required by one’s station or occupa-
tion.”). Fernandez’s statutory reading, which collapses the defini-
tion of “official act” into “official duty,” would render subsection
(C) surplusage of subsection (A). Cf. Bhd. of Locomotive Eng’rs,
522 F.3d at 1195; see also United States v. Roberson, 998 F.3d 1237,
1246 n.12 (11th Cir. 2021) (characterizing an argument that “im-
properly attempt[ed] to require an ‘official act’ for federal bribery
laws generally” as “without statutory support”).
The Supreme Court’s decision in McDonnell v. United
States, which clarified the meaning of “official act” as used in sub-
section (A) and gave rise to Fernandez’s proposed instruction, illus-
trates the inapplicability of that term to our case. 136 S. Ct. 2355(2016). There, former-Virginia Governor Bob McDonnell was in-
dicted for accepting payments for “performing official actions on
an as-needed basis” to promote research studies for a company’s
products. Id. at 2365. The parties agreed to use the definition of
“official act” under § 201 in instructing the jury on honest services
fraud and Hobbs Act extortion. Id. The Supreme Court ultimately
held that an “official act” is a decision or action on a question or
matter that “must involve a formal exercise of governmental
power” and “must also be something specific and focused that is
‘pending’ or ‘may by law be brought’ before a public official.” Id.
at 2372. The Court explained that “[s]etting up a meeting, talking
to another official, or organizing an event[,]” without more, “does
not fit th[e] definition of ‘official act.’” Id.
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As the district court observed, Fernandez’s proposed defini-
tion of “official duty,” adapted from McDonnell’s definition of “of-
ficial act,” would have required proof that “the public official . .
.made a decision or t[ook] an action on a question, matter, cause,
suit pending, or controversy. We don’t have that.” The only defi-
nition of “official duty” that Fernandez proposed does not fit the
facts of this case, which involves acceptance of bribes by an FAA
inspector in exchange for committing acts he was not authorized
to do—not by a politician conducting authorized legislative busi-
ness.
The facts of this case also differ from those in United States
v. Mayweather, 991 F.3d 1163 (11th Cir. 2021). There, the district
court denied the defendant’s request to use our post-McDonnell
pattern jury instruction defining “official act” as to Hobbs Act ex-
tortion charges. Id. at 1181–82. Although we concluded that the
district court properly declined to instruct the jury with the pro-
posed definition because it did “not fit the facts of [the] case,” we
held that the district court “was still required to define ‘official act’
because of the constitutional concerns underlying the McDonnell
decision.” Id. at 1184. We specifically highlighted the Supreme
Court’s concern that, under the government’s reading of “official
act,” “‘nearly anything a public official accepts—from a campaign
contribution to lunch—counts as a quid; and nearly anything a pub-
lic official does—from arranging a meeting to inviting a guest to an
event—counts as a quo.’” Id. at 1184 (quoting McDonnell, 136 S.
Ct. at 2372). We also cited the “significant federalism concerns”
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that the government’s position raised along with the potential for
constitutional vagueness, id. at 1185, as a result of which “public
officials could be subject to prosecution, without fair notice, for the
most prosaic interactions.” McDonnell, 136 S. Ct. at 2373. We
concluded that the district court’s error was not harmless, finding
“a reasonable likelihood exist[ed] that the jury applied the instruc-
tion in an improper manner” based on the theory of the case that
the government presented in closing argument. Mayweather, 991
F.3d at 1185.
The concerns underpinning Mayweather don’t arise here.
First, and foremost, this case concerns the application of “official
duty” under § 201(b)(2)(C), not “official act” under § 201(b)(2)(A),
as analyzed in McDonnell. Nor does this case implicate federalism
problems, as Fernandez was a federal employee, not a state actor.
Finally, the prospect of “prosecution, without fair notice, for the
most prosaic interactions” does not arise under § 201(b)(2)(C) be-
cause violations of an “official duty,” by their nature, arise only in
“case[s] of bribes to induce actions that directly violate a specific
duty.” See Alfisi, 308 F.3d at 151 n.3.
The question of what responsibilities constituted Fernan-
dez’s “official duties” was a factual one for the jury. Cf. United
States v. Project on Gov’t Oversight, 616 F.3d 544, 562 (D.C. Cir.
2010) (quoting United States v. Project on Gov’t Oversight, 543 F.
Supp. 2d 55, 61 (D.D.C. 2008)) (explaining that “it is for the jury to
decide what [a government employee’s] official responsibilities
were, what he did, and hence whether his conduct constituted
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19-15044 Opinion of the Court 13
government services”). Accordingly, the district court correctly
declined to use the only definition of “official duty” that Fernandez
proposed and did not otherwise err in declining to define it further.
B. Evidence of official duties
Fernandez also contests the government’s reliance on any
evidence relating to the FAA rules and regulations that established
his official duties.
We defined the contours for a jury’s consideration of civil
regulatory violations in criminal prosecutions in United States v.
Stefan, 784 F.2d 1093 (11th Cir. 1986). There, the district court ad-
mitted evidence of civil regulatory banking statute violations and
instructed the jury that it could infer criminal intent from those vi-
olations. Id. at 1097. We affirmed, holding that “[i]f the evidence
of civil violations is introduced for purposes other than to show
criminal misapplication and the evidence is not presented in such a
way that the jury’s attention is focused on the civil violations rather
than the criminal ones, there is no error.” Id. at 1098. Distinguish-
ing the facts in that case from those in United States v. Christo, 614
F.2d 486 (5th Cir. 1980), 1 we emphasized that the district court’s
instructions to the jury clarified that civil or regulatory violations
did not equate to criminal conduct. Stefan, 784 F.2d at 1099.
1 Pre-October 1, 1981 Fifth Circuit decisions are binding precedent in our cir-
cuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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The government contends that the introduction of the rules
and regulations was critical to establishing the official duties gov-
erning Fernandez’s role as an FAA inspector, Fernandez’s
knowledge of those duties, and Fernandez’s corrupt intent in shirk-
ing those duties in exchange for bribes from the Suarezes. Cf.
United States v. Gjieli, 717 F.2d 968, 977 (6th Cir. 1983) (affirming
defendant’s conviction for bribing a public official to induce him to
act in violation of his “lawful duty” because bribe was calculated to
cause public official to breach his duty to “uphold the laws of all
governments within the United States” as established by civil reg-
ulation). Fernandez was “free to argue before the jury that the vi-
olations were not a sufficient indication of criminal guilt.” United
States v. Imo, 739 F.3d 226, 234 (5th Cir. 2014).
Fernandez maintains that the government’s reliance on
these rules and regulations might have led the jury to convict him
of civil rather than criminal offenses. But Fernandez does not point
to any portion of the trial transcript or record where the govern-
ment explicitly urged the jury to convict him solely based on viola-
tions of rules or regulations. Further, the district court instructed
the jury that it could convict Fernandez only on the charged crim-
inal conduct, not for uncharged civil infractions. Because we as-
sume the jury followed its instructions, United States v. Butler, 102
F.3d 1191, 1196 (11th Cir. 1997), the district court presumptively
cured any potential confusion over the difference between civil and
criminal misdeeds.
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Fernandez mainly relies on the Fourth Circuit’s decision in
United States v. Morlang, 531 F.2d 183 (4th Cir. 1975). There, the
defendant objected to the district court’s jury instruction as to the
general standards of conduct imposed on an unindicted co-con-
spirator that tracked the language of the entire code of conduct for
the Department of Housing and Urban Development employees.
Id. at 191. The Fourth Circuit found that the district court erred in
reading the entire code—including portions irrelevant to the facts
of the case—when defining the elements of the bribery charge. Id.at 191–92. But significantly, the Fourth Circuit agreed with the
government that the jury was entitled to “know the standard [of]
conduct required” of the official. Id. Thus, the district court cor-
rectly instructed the jury on regulations “prohibiting receipt of any
salary from a private source as compensation for [the official’s] ser-
vices to the government, or using public office for private gain,” id.
at 192. So contrary to Fernandez’s contention, Morlang did not
turn on the mere fact that the jury instructions referenced the de-
fendant’s regulatory violations.
Instead, as the Fourth Circuit explained, the district court in
that case erred by instructing the jury on the official’s “duty not to
impede Government efficiency or economy” or “affect adversely
the confidence of the public in the integrity of the Government”
because such language is “too indefinite and vague” absent any
“charge or evidence that the bribes alleged may have been for such
purpose.” Id. (alteration adopted) (internal quotation marks omit-
ted).
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16 Opinion of the Court 19-15044
Because no evidentiary disconnect exists between the regu-
lations that the government introduced and Fernandez’s bribes of
conviction, a similar dilemma did not arise here. The evidence pre-
sented at trial supports the jury’s conclusion that Fernandez ac-
cepted bribes in exchange for violating his official duties, including,
as Morlang approvingly noted, salary from a private source and us-
ing public office for private gain.
C. Prosecutorial misconduct
Fernandez also accuses the government of committing pros-
ecutorial misconduct during closing argument by asking the jury
to conclude that certain evidence established his official duties. Be-
cause Fernandez did not preserve this argument below, we review
only for plain error “that is so obvious that failure to correct it
would jeopardize the fairness and integrity of the trial.” United
States v. Merrill, 513 F.3d 1293, 1307 (11th Cir. 2008) (quoting
United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997)). But
even if he had preserved it, we find no reversible error as to any of
the government’s statements made at closing argument.
To establish prosecutorial misconduct, Fernandez must
demonstrate that “the remarks in question were both (a) improper
and (b) prejudicial to the defendant’s substantial rights.” United
States v. Nerey, 877 F.3d 956, 970 (11th Cir. 2017). A prosecutor’s
remarks are prejudicial to a defendant’s substantial rights when
there is a “reasonable probability” that the trial’s outcome would
have differed but for those remarks. Id. (quoting United States v.
Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006)).
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19-15044 Opinion of the Court 17
Fernandez has not demonstrated how any of the challenged
remarks were improper or prejudicial. The government’s remarks
during closing advanced an appropriate argument asking the jury
to draw reasonable inferences from facts in evidence, and none in-
vited unfair prejudice. “Although it may be error to allow counsel
to argue to the jury facts that are not in evidence, ‘a[n] attorney is
entitled to urge the conclusions which the attorney thinks the jury
should draw from the evidence.’” United States v. Calderon, 127
F.3d 1314, 1336 (11th Cir. 1997) (quoting United States v.
Braithwaite, 709 F.2d 1450, 1456 (11th Cir. 1983)); see also United
States v. Gonzalez, 834 F.3d 1206, 1226–27 (11th Cir. 2016) (“[A]
prosecutor may argue both facts in evidence and reasonable infer-
ences from those facts.”) (quoting Tucker v. Kemp, 762 F.2d 1496,
1506 (11th Cir. 1985) (en banc))). Although none of the govern-
ment’s witnesses described Fernandez’s job responsibilities and ob-
ligations using the statutory term of art “official duty,” the prose-
cutor was free to argue that the responsibilities to which the wit-
nesses testified constituted Fernandez’s “official duties.” See Pro-
ject on Gov’t Oversight, 616 F.3d at 562 (characterizing govern-
ment employee’s official duties as “an issue of fact for the jury to
decide.”).
The remarks’ isolated nature also goes against a finding of
prejudice. The contested comments comprise only several lines of
a 15-day trial transcript that spans thousands of pages. We cannot
say that those comments were “so pronounced and persistent that
[they] permeate[d] the entire atmosphere of the trial.” United
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18 Opinion of the Court 19-15044
States v. Woods, 684 F.3d 1045, 1065 (11th Cir. 2012) (quoting
United States v. Crutchfield, 26 F.3d 1098, 1099 (11th Cir. 1994)).
In sum, we find that no prosecutorial misconduct occurred
in the district court.
D. Sufficiency of the evidence
Fernandez challenges the sufficiency of the evidence on his
bribery, false statement, wire fraud, and aggravated identity theft
convictions. At the close of the government’s case, Fernandez
moved for judgment of acquittal under Federal Rule of Criminal
Procedure 29. Fernandez argues that the district court erred in
denying both his motion and his renewed motion under Rule 29 as
to the bribery/false statement counts because the government had
not established that he accepted anything of value in exchange for
violating his official duties. Fernandez also contends that there was
insufficient evidence to find him guilty on the wire fraud/aggra-
vated identity theft counts because the government adduced insuf-
ficient evidence that Fernandez submitted the doctor’s note justi-
fying his sick leave knowing it to be fraudulent.
We review challenges to the evidentiary sufficiency of a
judgment de novo. United States v. Gamory, 635 F.3d 480, 497
(11th Cir. 2011). We “will uphold the denial of a Rule 29 motion if
we ‘determine that a reasonable fact-finder could conclude that the
evidence established the defendant’s guilt beyond a reasonable
doubt.’” Id. (quoting United States v. Descent, 292 F.3d 703, 706
(11th Cir. 2002)). “‘We view the evidence in the light most
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19-15044 Opinion of the Court 19
favorable to the government,’ making all reasonable inferences and
credibility choices in the government’s favor,” id. (quoting United
States v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008)). “A convic-
tion must be upheld unless the jury could not have found the de-
fendant guilty under any reasonable construction of the evidence.”
United States v. Frank, 599 F.3d 1221, 1233 (11th Cir. 2010) (quot-
ing United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999)).
Viewing the evidence in the light most favorable to the gov-
ernment, there was sufficient evidence that Fernandez violated his
official duties as an ASI. The evidence at trial showed that pay-
ments Fernandez received from AVCOM fueled Fernandez’s brib-
ery scheme. Fernandez derived a total of $179,678.76 from the
scheme, consisting of $65,928.00 in cash deposits into accounts un-
der Fernandez’s control; $12,030.00 in checks and bank transfers
from AVCOM to Fernandez; $86,824.00 in net cash deposits in ac-
counts under the control of Juana Fores, Fernandez’s mother; and
$14,869.76 in checks and bank transfers from AVCOM to Fores.
Fernandez attacks the credibility of Rolando Suarez, the
government’s cooperating witness who detailed AVCOM’s bribery
arrangement with Fernandez at trial. Fernandez is essentially ask-
ing us to weigh Rolando’s credibility anew. But we cannot do that,
as we must “assume that the jury made all credibility choices in
support of the verdict”—not against it. United States v. Jiminez,
564 F.3d 1280, 1285 (11th Cir. 2009). And “[i]n rebutting the gov-
ernment’s evidence ‘it is not enough for a defendant to put forth a
reasonable hypothesis of innocence, because the issue is not
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20 Opinion of the Court 19-15044
whether a jury reasonably could have acquitted but whether it rea-
sonably could have found guilt beyond a reasonable doubt.’” Id.(alteration adopted) (quoting United States v. Thompson, 473 F.3d
1137, 1142 (11th Cir. 2006)); accord United States v. Garcia, 447
F.3d 1327, 1334 (11th Cir. 2006) (explaining that juries are “free to
choose between or among the reasonable conclusions to be drawn
from the evidence presented at trial,” and emphasizing that courts
“must accept all reasonable inferences and credibility determina-
tions made by the jury.”) (quoting United States v. Sellers, 871 F.2d
1019, 1021 (11th Cir. 1989)). The record shows that Fernandez had
a full and fair opportunity to highlight for the jury the alleged short-
comings in Rolando’s testimony that he identifies, both through
cross-examination or his closing argument. The jury ultimately
convicted Fernandez and, in so doing, implicitly rejected his attacks
on Rolando’s credibility.
As to his wire fraud and identity theft convictions, Fernan-
dez argues that the evidence shows that he legitimately obtained a
doctor’s note to justify his June 2013 sick leave. To the contrary,
the evidence at trial strongly suggests that the note was fraudulent.
That note originated from Dr. Zaldivar’s prescription pad. And he
testified that he never prepared the note; that the handwriting on
the document was not his; that Fernandez was not a patient of his;
that he had no patient file for Fernandez; that he would not treat a
non-patient for fear of potential legal exposure; that “severe back
pain” is not a medically valid diagnosis; and that the remedy that
the note prescribed—two weeks’ rest—is not even a valid
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19-15044 Opinion of the Court 21
treatment for severe back pain. The note was also written on the
prescription pad that the doctor reserved for prescribing medica-
tion rather than the one he reserved for prescribing treatment. For
these reasons, Dr. Zaldivar said that he viewed the contents of the
note as “nonsense,” written “by someone that doesn’t have a clue
about medicine.”
In sum, in viewing the evidence in the light most favorable
to the government, we find sufficient evidence supported the jury’s
guilty verdict as to the bribery, false statement, wire fraud, and ag-
gravated identity theft counts.
IV.
Fernandez also challenges his 75-month sentence. First, he
argues that the district court failed to make specific findings as to
the obstruction enhancement and that the evidence did not sup-
port any finding that he obstructed justice. Second, Fernandez con-
tends that the district court erred by imposing forfeiture without a
hearing and by incorrectly calculating the forfeiture amount re-
lated to the bribery scheme. And third, he asserts that the district
court imposed an overbroad condition of release without making
any findings to justify it.
A.
When reviewing a court’s imposition of an obstruction en-
hancement, we review the district court’s factual findings for clear
error and its application of those facts to the Guidelines de novo.
United States v. Guevara, 894 F.3d 1301, 1311 (11th Cir. 2018)
USCA11 Case: 19-15044 Date Filed: 08/22/2022 Page: 22 of 28
22 Opinion of the Court 19-15044
(quoting United States v. Perkins, 787 F.3d 1329, 1341 (11th Cir.
2015)). Review for clear error is deferential, and “we will not dis-
turb a district court’s findings ‘unless we are left with a definite and
firm conviction that a mistake has been committed.’” United States
v. Sosa, 777 F.3d 1279, 1300 (11th Cir. 2015) (quoting United States
v. Clarke, 562 F.3d 1158, 1165 (11th Cir. 2009)). A “district court’s
choice between permissible views [of the evidence] cannot be clear
error.” United States v. Ndiaye, 434 F.3d 1270, 1305 (11th Cir.
2006) (citing Johansen v. Combustion Eng’g, Inc., 170 F.3d 1320,
1335 n.30 (11th Cir. 1999)).
“The government bears the burden of establishing by a pre-
ponderance of the evidence the facts necessary to support a sen-
tencing enhancement.” United States v. Kinard, 472 F.3d 1294,
1298 (11th Cir. 2006). The district court may draw reasonable in-
ferences from facts in the record. United States v. Scott, 441 F.3d
1322, 1327 (11th Cir. 2006).
The Guidelines provide that a defendant’s offense level can
be enhanced by two levels if (1) he “willfully obstructed or im-
peded, or attempted to obstruct or impede, the administration of
justice with respect to an investigation, prosecution, or sentencing
of [his] instant offense,” and (2) his “obstructive conduct related”
either to his “offense of conviction and any relevant conduct” or to
“a closely related offense,” U.S.S.G. § 3C1.1. To permit “meaning-
ful appellate review,” sentencing courts must make specific find-
ings of fact when they adjust sentences for obstruction of justice.
Guevara, 894 F.3d at 1311 (quoting United States v. Alpert, 28 F.3d
USCA11 Case: 19-15044 Date Filed: 08/22/2022 Page: 23 of 28
19-15044 Opinion of the Court 23
1104, 1107 (11th Cir. 1994) (en banc)). But if the record clearly sup-
ports the adjustment by clearly reflecting the basis for it, the court
need not make individualized findings regarding obstruction of jus-
tice. Id.
A defendant “willfully” obstructs “the administration of jus-
tice” within the meaning of U.S.S.G. § 3C1.1 when he commits,
suborns, or attempts to suborn perjury. See United States v.
Duperval, 777 F.3d 1324, 1337 (11th Cir. 2015) (citing U.S.S.G. §
3C1.1 cmt. n.4(B)). “Perjury is ‘false testimony concerning a mate-
rial matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.’” Id.
(quoting United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002)).
Testimony is material where, if believed, it would tend to influence
or affect the issue under determination. U.S.S.G. § 3C1.1 cmt. n.6.
Typically, material testimony goes to the issue of a defendant’s
guilt. See, e.g., United States v. McKinley, 732 F.3d 1291, 1297–98
(11th Cir. 2013). When multiple instances of obstruction are at is-
sue, we will uphold the district court’s enhancement if the record
supports at least one finding of obstruction. See Ndiaye, 434 F.3d
at 1303 (holding that record supported obstruction enhancement
when defendant indirectly influenced witness to sign a false affida-
vit, even though defendant may not have instructed two witnesses
to testify falsely).
Here, the district court did not err by imposing the obstruc-
tion enhancement because the record clearly supports the finding
that Fernandez intentionally suborned false testimony as to
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24 Opinion of the Court 19-15044
whether he received consideration for violating his official duties
from his wife, Oreida Alvarez. At trial, Alvarez testified that her
business was the source of the deposits into Fernandez’s bank ac-
counts and, by implication, that the Suarezes’s bribes were not the
source of the deposits. Then, she testified that her business had
revenues of $10,000 to $16,000 a month, acknowledging that her
state tax filings reflected zero gross sales during some of the months
in question. In one month, the deposit was nearly eight times as
much as her reported gross sales. That Alvarez lied under oath
about an element of a crime for which Fernandez was charged was
more likely than not. See Kinard, 472 F.3d at 1298 (explaining that
the government must establish “by a preponderance of the evi-
dence the facts necessary to support a sentencing enhancement”).
Further, the district court reasonably inferred that Alvarez’s false
testimony was not the result of confusion, mistake, or faulty
memory. See Scott, 441 F.3d at 1327 (affirming sentencing en-
hancement supported by district court’s reasonable inference).
Thus, we find no reversible error.
B.
Next, Fernandez challenges the district court’s imposition of
forfeiture without a hearing and its calculation of the forfeiture
amount related to the bribery scheme.
We review de novo the district court’s legal conclusions re-
garding forfeiture and its findings of fact for clear error. United
States v. Puche, 350 F.3d 1137, 1153 (11th Cir. 2003).
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19-15044 Opinion of the Court 25
Federal law provides for the forfeiture of “[a]ny property,
real or personal, which constitutes or is derived from proceeds
traceable to” certain offenses, including “bribery of a public offi-
cial.” See 18 U.S.C. §§ 981(a)(1)(C), 1956(c)(7)(B)(iv). “[T]he term
‘proceeds’ means the amount of money acquired through the ille-
gal transactions resulting in the forfeiture, less the direct costs in-
curred in providing the goods or services.” Id. § 981(a)(2)(B). If the
government seeks a personal money judgment, the court must de-
termine the amount of money that the defendant will be ordered
to pay. FED. R. CRIM. P. 32.2(b)(1)(A). The preponderance stand-
ard governs criminal forfeiture. United States v. Hasson, 333 F.3d
1264, 1277 (11th Cir. 2003). “If the forfeiture is contested, on either
party’s request the court must conduct a hearing after the verdict
or finding of guilty.” FED. R. CRIM. P. 32.2(b)(1)(B).
The district court did not err by imposing forfeiture without
a hearing because Fernandez never requested a hearing. See FED.
R. CRIM. P. 32.2(b)(1)(B). Further, the district court properly calcu-
lated the forfeiture amount based on evidence regarding the
checks, bank transfers, and cash payments Fernandez and his
mother, who acted as a front to conceal payments to Fernandez,
received.
C.
Finally, Fernandez argues that the district court erred in for-
bidding him from working in any aspect of the aviation industry
during his term of supervised release.
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26 Opinion of the Court 19-15044
We generally “review the imposition of special conditions of
supervised release for abuse of discretion.” United States v. Car-
penter, 803 F.3d 1224, 1237 (11th Cir. 2015) (quoting United States
v. Moran, 573 F.3d 1132, 1137 (11th Cir. 2009)). But when a de-
fendant waives his objection to the imposition of special conditions
of supervised release, “we are limited to reviewing for plain error.”
Id. (quoting United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir.
2003)). To avoid that fate, a defendant must “articulate the specific
nature of his objection to a condition of supervised release so that
the district court may reasonably have the opportunity to consider
it. Id. (quoting Zinn, 321 F.3d at 1090 n.7). “And he must do so in
a manner ‘sufficient to apprise the trial court and the opposing
party of the particular grounds upon which appellate relief will
later be sought.’” Id. at 1237–38 (quoting United States v.
Gonsalves, 121 F.3d 1416, 1420–21 (11th Cir. 1997)). Thus, “[a]
sweeping, general objection is insufficient to preserve specific sen-
tencing issues for review.” Id. at 1238.
Under plain error review, a defendant must demonstrate
that (1) an error occurred; (2) the error was plain; and (3) the error
affects his substantial rights. United States v. Monroe, 353 F.3d
1346, 1349 (11th Cir. 2003) (quoting United States v. Lejarde-Rada,
319 F.3d 1288, 1290 (11th Cir. 2003)). If all three conditions are
satisfied, we may exercise our discretion to correct the error only
if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. (quotation marks omitted).
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19-15044 Opinion of the Court 27
To establish error, a defendant must show that the district
court “abused its discretion in imposing the challenged [special]
conditions” of supervised release. Carpenter, 803 F.3d at 1238. Sec-
tion 3583(d) of Title 18 of the U.S. Code authorizes the imposition
of occupational restrictions as a condition of supervised re-
lease. See 18 U.S.C. § 3583(d). Likewise, U.S.S.G. § 5F1.5, which
implements Congress’ mandate in 18 U.S.C. § 3583(d), authorizes
a court to impose occupational restrictions and restricts its author-
ity to do so to those instances where the court finds (1) “a reasona-
bly direct relationship” between the occupational restriction and
the conduct relevant to the defendant's offense and (2) the re-
striction is “reasonably necessary to protect the public” from the
possibility the defendant will “continue to engage in unlawful con-
duct similar to that for which he was con-
victed.” U.S.S.G. § 5F1.5(a). If the court decides to impose a con-
dition restricting a defendant’s engagement in a specified occupa-
tion, business, or profession, the court must impose the condition
“for the minimum time and to the minimum extent necessary to
protect the public.” Id. § 5F1.5(b). A district court need not make
specific findings prior to imposing a special condition when the
condition imposed is clear, and undisputed facts contained in the
PSI support the condition. United States v. Ridgeway, 319 F.3d
1313, 1317 (11th Cir. 2003).
Here, Fernandez’s general objection to the related-concern
condition below did not articulate the specific nature of the objec-
tion he raises now on appeal, so we review this claim for plain
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28 Opinion of the Court 19-15044
error. The district court did not plainly err by barring Fernandez
from working in any aspect of the aviation industry during his term
of supervised release because it did not commit any error. The re-
striction bore a direct relationship to his offense conduct and was
reasonably necessary to protect the public from the possibility that
he would continue to engage in unlawful conduct similar to that
for which he was convicted. Further, the district court was not re-
quired to make specific findings before imposing the condition be-
cause the condition imposed and the justifications for it were clear.
V.
We affirm Fernandez’s conviction and sentences.
AFFIRMED.