USA v. Aaron Eyerman

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13629
Non-Argument Calendar
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D.C. Docket No. 2:17-cr-00134-JES-MRM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

AARON EYERMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 15, 2020)
Before JORDAN, JILL PRYOR and LAGOA, Circuit Judges.

PER CURIAM:
A jury convicted Aaron Eyerman of wire fraud, making a false oath in
relation to a bankruptcy proceeding, and money laundering. The district court
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imposed a sentence of 70 months’ imprisonment. Eyerman appeals his convictions
and sentence. After careful review, we affirm.
I. BACKGROUND
A grand jury returned a 12-count superseding indictment charging Eyerman
with three counts of wire fraud, in violation of 18 U.S.C. §§ 2 and 1343 (Counts 1–
3); one count of making a false oath in relation to a bankruptcy proceeding, in
violation of 18 U.S.C. § 152(2) (Count 4); and eight counts of money laundering,
in violation of 18 U.S.C. §§ 2 and 1957 (Counts 5–12). The indictment charged
that Eyerman, a real estate agent, convinced a colleague, Andrea Wolak, that he
had ideas for lucrative businesses. He also convinced her to invest $561,000 in
those ventures. But Eyerman never launched either of the businesses in earnest;
instead, he immediately spent the money Wolak entrusted to him on gambling and
other personal expenditures and extravagances. The wire fraud counts arose from
three wire transfers Wolak made to Eyerman, and the money laundering counts
arose from transfers and payments Eyerman made using Wolak’s funds. When
Wolak sued to recover her investment, Eyerman filed for bankruptcy protection.
At a meeting of creditors, Eyerman made false statements under oath, including
that he had not used any of Wolak’s money for gambling or for a down payment
on personal property. The false oath count arose from these statements. Eyerman
pled not guilty and proceeded to a jury trial.
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A. Trial
The government introduced the following evidence at trial.
1
Wolak and
Eyerman, both real estate agents, met when they worked at the same firm. When
Eyerman left that firm and took over a Better Homes and Gardens Real Estate
(“BHGRE”) franchise, Wolak followed him there, thinking him successful based
on his representations that he was a business owner and millionaire. During their
time at BHGRE, Eyerman approached Wolak about a business opportunity,
promising “good” and “fast[] money” by purchasing and flipping short sale
properties. Doc. 254 at 103–04.
2
Eyerman specified the properties he was eyeing,
telling Wolak that she could make $200,000. Wolak agreed to invest $300,000,
depositing the funds directly into Eyerman’s account.
Eyerman, however, did not buy any of the properties he identified for the
business venture he fabricated. He did buy one of the properties—which he used
as a personal residence. The short sale business never actually did any business,
and none of Wolak’s investment was used as Eyerman said it would be. In the
months following her investment, Wolak asked Eyerman “many times” what was

1
Because the district court denied Eyerman’s motion for judgment of acquittal,
we recount the facts in the light most favorable to the government and draw all reasonable
inferences in favor of the jury's verdict. See United States v. Hernandez, 743 F.3d 812, 814
(11th Cir. 2014).
2
“Doc.” numbers are the district court’s docket entries.
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“going on with those short sales,” and Eyerman said, “[w]ell, you know, short sales
take—you know, they take a while to get done.” Id. at 123.
Instead of putting money toward the business he had pitched to Wolak,
Eyerman spent her investment on personal expenses. The same day Wolak wired
him the funds, Eyerman used nearly $50,000 of the money to pay off personal
credit card debt. The following month, Eyerman used another $50,000 of Wolak’s
money to place to down payment on a home for himself. Weeks later, he used
$15,000 of her money to make a partial down payment on a custom Porsche. And
in the six weeks that followed Wolak’s $300,000 investment, Eyerman spent
nearly $50,000 of her money on withdrawals and charges at a casino. Within
seven weeks, Eyerman had spent the entirety of Wolak’s investment.
Eyerman eventually approached Wolak about a second purported business
opportunity. Eyerman told Wolak that they “could have an opportunity to buy a
Better Homes and Gardens franchise construction company.” Id. at 129. He told
her that “the franchise would cost $150,000” and involved an 11-year, renewable
contract. Id. Eyerman also told her that they “would have a full-page ad in the
Better Homes and Gardens magazine advertising [their] company for free.” Id.
And he told her that they would get 3.5% of “every home that was built under
Better Homes and Gardens’ name” and that they would purchase a sales center
with the Better Homes and Gardens logo. Id. at 131–32. In fact, BHGRE never
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gave Eyerman permission to operate an additional business. In fact, Eyerman had
asked about operating a construction company under the BHGRE name, and
BHGRE’s senior vice president of franchise sales told him that BHGRE would not
permit Eyerman to use the Better Homes and Gardens trademarks. BHGRE does
not franchise construction businesses.
Eyerman told Wolak that the business would start with two model homes.
To get the models and the sales center up and running, he told her, they would both
need to invest $561,000. Eyerman told Wolak to “forget about the short sales, this
is going to be better,” and that he would put her initial $300,000 investment—
which he said still existed—toward the business if she would give him $261,000
more. Id. at 133. She did.
Wolak and Eyerman put their agreement in writing, “the operating
agreement of A Better Home, LLC.” Id. at 135–36. The agreement stipulated that
Wolak and Eyerman were forming a limited liability company under Florida law to
purchase and develop real estate and build new construction. The agreement
further stipulated that both Eyerman and Wolak would make capital contributions
of $561,000, with Wolak’s contribution consisting only of cash, and that profits
were to be distributed equally between the two partners. Under the agreement, an
“individual capital account” would be maintained for each member and initial
capital contributions would be credited to each account. Id. at 142. The agreement
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provided that no member would “withdraw any portion of their capital contribution
without the unanimous consent of the other members.” Id. at 141 (internal
quotation marks omitted).
Eyerman had lied to Wolak again. To Wolak’s knowledge, no capital
account was ever created for her, and none of her
money ever went into any capital
account. Eyerman, for his part, never contributed “any money whatsoever” to the
company. Id. at 143. Soon after she deposited it, but unbeknownst to her,
Eyerman had already spent her investment on personal expenditures, including
gambling, credit card payments, and real property for his personal use. In the
months that followed their agreement and her investment, Wolak asked Eyerman
numerous times when they “were going to get started”; Eyerman replied that he
was busy and that they would get started eventually. Id. at 167.
A little more than six months after she invested the additional $261,000,
Wolak told Eyerman she needed to withdraw $60,000 from A Better Home. About
two weeks later, she demanded that he return all of her money. Eyerman
responded that he could not do anything for her: they “didn’t even have an LLC
set up when [she] deposited” the $300,000, and that money was a loan. Id. at 202–
03. Wolak testified that the deposited money was “never a loan,” and that
Eyerman never suggested that he understood it as such. Id. at 207.
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Wolak soon realized that all her money was gone. She sued Eyerman and
obtained a judgment, but not before Eyerman filed for bankruptcy. During the
bankruptcy proceedings, Eyerman disclosed a $561,000 obligation to Andrea
Wolak incurred in 2015. Benjamin Lambers, a trial attorney with the United States
Trustee’s Office, testified that Eyerman stated under oath at a meeting of creditors
that he did not use any of Wolak’s money to place a down payment or invest in his
own personal property or to gamble. Eyerman’s statements were recorded and
played before the jury.
At the close of the government’s case, Eyerman moved for a judgment of
acquittal on all counts. He argued, as to the wire fraud counts, that the government
failed to prove Wolak’s contribution was not a loan or that he intended to defraud
her. He argued that the money laundering counts fell with the government’s
failure to prove the wire fraud counts. As to the count for making a false oath in
relation to a bankruptcy proceeding, he argued that the government did not
substantiate that he intended to make a fraudulent or false statement to the
bankruptcy court. The district court denied the motion, and when Eyerman
renewed the motion at the close of all the evidence,
3
the court denied the motion
again. The jury found Eyerman guilty of all counts.

3
Eyerman called only one witness in his defense, a government witness whom he
attempted to further impeach. That witness’s testimony is not relevant to this appeal.
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B. Sentencing
In anticipation of sentencing, a probation officer prepared a presentence
investigation report (“PSR”). As relevant to this appeal, the PSR applied a two-
level enhancement to Eyerman’s offense level under U.S.S.G. § 2B1.1(b)(10)(C)
because the offense involved sophisticated means. Specifically, the PSR noted that
Eyerman’s scheme involved two fraudulent businesses and the concealment of
assets and transactions. And Eyerman registered the second fraudulent business
with the Florida Department of State and entered into a written agreement with
Wolak that fraudulently and without authorization used trademarks from Better
Homes and Gardens. After applying other enhancements not relevant to this
appeal, the PSR arrived at a total offense level of 28. With a criminal history
category of I, this yielded a guidelines range of 78 to 97 months’ imprisonment.
Eyerman objected to the sophisticated-means enhancement, arguing that the
fraud charges accounted for the sophistication of his offense. He further argued
that operating an LLC was not a deceitful act because the company was a matter of
public record and was co-owned by Wolak. A Better Home, he argued, was
merely a “spinoff” and part of “an ongoing business endeavor” he legitimately
shared with BHGRE. Doc. 259 at 30. Moreover, Eyerman asserted, Wolak was
sophisticated as well: she was more seasoned as a realtor than he was, was well
educated, and understood the concepts of Eyerman’s business proposals. The
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district court overruled Eyerman’s objection and sentenced Eyerman to 70 months’
imprisonment for Counts 1–3 and 5–12, running concurrently with 60 months’
imprisonment—the statutory maximum—for Count 4.
This is Eyerman’s appeal.
II. STANDARDS OF REVIEW
We review de novo whether the evidence was sufficient to sustain a criminal
conviction. United States v. Davis, 854 F.3d 1276, 1292 (11th Cir. 2017). In
doing so, we view the facts and draw all reasonable inferences in the light most
favorable to the government. United States v. Hansen, 262 F.3d 1217, 1236 (11th
Cir. 2001). The district court’s denial of a motion for judgment of acquittal “will
be upheld if a reasonable trier of fact could conclude that the evidence establishes
the defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez, 218
F.3d 1243, 1244 (11th Cir. 2000). We therefore must sustain a verdict “where
there is a reasonable basis in the record for it.” United States v. Farley, 607 F.3d
1294, 1333 (11th Cir. 2010) (internal quotation marks omitted).
We review for clear error the district court’s decision to apply an
enhancement for sophisticated means. United States v. Robertson, 493 F.3d 1322,
1329–30 (11th Cir. 2007). A factual finding is clearly erroneous when, after
reviewing all the evidence, we are left with the definite and firm conviction that a
mistake has been committed. Id. at 1330.
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III. DISCUSSION
Eyerman challenges the sufficiency of the evidence supporting his
conviction on all counts and the district court’s imposition of the sophisticated-
means enhancement to his sentence. We address these arguments in turn.
A. Sufficiency of the Evidence
Eyerman argues that the district court erred in denying his motion for a
judgment of acquittal as to all counts because the government’s evidence was
circumstantial and speculative. Specifically, he argues that the government failed
to prove he had the requisite intent to defraud Wolak, or that he knowingly falsely
stated in his bankruptcy proceeding that he did not use any of Wolak’s money to
gamble or make payments on personal property. He also asserts that his money
laundering convictions must fall with his wire fraud convictions. We disagree with
Eyerman’s sufficiency arguments.
A person who uses a wire communication affecting interstate commerce to
execute any scheme or artifice to defraud, or to obtain money or property by means
of false or fraudulent pretenses, representations, or promises, commits a federal
offense. 18 U.S.C. § 1343. A wire fraud conviction requires, in relevant part,
proof that the defendant: (1) participated in a scheme or artifice to defraud (2) with
the intent to defraud. United States v. Machado, 886 F.3d 1070, 1082–83 (11th
Cir. 2018). A scheme to defraud requires proof of a material misrepresentation or
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the omission or concealment of a material fact calculated to deceive another
person. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). Intent to
defraud “may be found when the defendant believed that he could deceive the
person to whom he made the material misrepresentation out of money or property
of some value.” Id. at 1301 (internal quotation marks omitted). A jury may infer
intent from the defendant’s conduct. Id.; see United States v. Hawkins, 905 F.2d
1489, 1496 (11th Cir. 1990) (explaining that the government need not produce
direct proof of criminal intent; circumstantial evidence may suffice).
Any person who “knowingly and fraudulently makes a false oath or account
in or in relation to” a bankruptcy case commits a federal offense. 18 U.S.C.
§ 152(2). It is also a federal offense to “knowingly engage[] or attempt[] to engage
in a monetary transaction in criminally derived property that is of a value greater
than $10,000 and is derived from specified unlawful activity,” that is, to launder
money. Id. § 1957(a).
Here, the evidence the government presented was sufficient for the jury to
infer that Eyerman intended to defraud Wolak. Eyerman did not use any of the
money Wolak gave him for any purpose he had represented to her. See Maxwell,
579 F.3d at 1299, 1301. Instead, he immediately spent the money exclusively on
personal expenditures like down payments on personal property and gambling.
Evidence of these expenditures supported the jury’s finding that Eyerman intended
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to defraud Wolak when he persuaded her to part with her money. See United
States v. Ellisor, 522 F.3d 1255, 1271–72 (11th Cir. 2008) (explaining that “ample
evidence” supported intent to defraud when the government showed that the
defendant “collected money from schools and businesses in the name of [a]
Christmas show” but actually “spent the money on purchases for himself,
including a suite at the Doubletree Hotel, a luxury car rental, and expensive
clothing”).
Although Eyerman argues that his convictions were supported only by
speculative evidence that required the jury to make unreasonable inferences, he
does not identify any such evidence. See Fed. R. App. P. 28(a)(8)(A) (stating that
an appellant’s argument must contain his contentions and the reasons for them,
with citations to the parts of the record on which he relies). Additionally,
Eyerman’s argument that the government established his intent to defraud only
through circumstantial evidence is not a basis to disturb the jury’s verdict because
an intent to defraud may be inferred from such evidence. See Hawkins, 905 F.2d at
1496.
Viewing the facts and drawing all reasonable inferences in the light most
favorable to the government, we conclude that the jury could reasonably conclude
that Eyerman made misrepresentations to Wolak with the intent to defraud her.
See Hansen, 262 F.3d at 1236; Machado, 886 F.3d at 1082–83. And because
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Eyerman’s only argument as to his money laundering convictions is that they
should fall with his wire fraud convictions, his challenge to them also fails.
Finally, the jury could reasonably infer that Eyerman knowingly made a
false oath in relation to his bankruptcy proceeding. When viewed in the light most
favorable to the government, evidence showing the immediacy with which
Eyerman used the victim’s money to gamble and place a down payment on
personal property belies his argument that he did not knowingly lie by stating
otherwise under oath. See Hansen, 262 F.3d at 1236.
The district court did not err in denying Eyerman’s motion for a judgment of
acquittal. See Rodriguez, 218 F.3d at 1244. We affirm Eyerman’s convictions.
4

B. Sophisticated-Means Enhancement
Eyerman also argues that the district court erred in applying a two-level
sentence enhancement for sophisticated means under U.S.S.G. § 2B1.1(b)(10)(C).
He contends that there was nothing sophisticated about the way Wolak transferred
her money or how he spent it. He further contends that, despite drafting an
operating agreement stipulating that Wolak’s contributions would go into an

4
Eyerman also argues, relying on United States v. Takhalov, 827 F.3d 1307 (11th Cir.
2016), opinion modified on denial of reh’g, 838 F.3d 1168 (11th Cir. 2016), that there is a
difference between intent to deceive and intent to defraud and that his actions amounted only to a
breach of contract, which is not a crime even if it was intentional. We did say in Takhalov that
there is a difference between intent to deceive and intent to defraud: we explained that one does
not intend to defraud if he does not intend to harm the victim. 827 F.3d at 1313. Eyerman’s
argument fails because, for reasons discussed above, there was ample evidence from which the
jury could conclude that Eyerman did intend to harm Wolak with his deceit.
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account he could not touch and establishing an LLC using a trademark he knew he
could not use, he did not conceal his use of Wolak’s funds with any sophistication
because she knew she deposited the money into his personal account. Again, we
disagree.
The Sentencing Guidelines provide for a two-level enhancement if a
defendant commits a theft offense involving sophisticated means. U.S.S.G.
§ 2B1.1(b)(10)(C). Sophisticated means entail “especially complex or especially
intricate offense conduct pertaining to the execution or concealment of an offense.”
U.S.S.G. § 2B1.1, cmt. (n.9(B)). Each action by the defendant need not be
sophisticated so long as “the totality of the scheme was sophisticated.” United
States v. Barrington, 648 F.3d 1178, 1199 (11th Cir. 2011).
The district court did not clearly err in applying the enhancement for
sophisticated means. In addition to forming a corporate entity as part of his
scheme and using a trademark he knew he had no right to use in the process,
Eyerman presented Wolak with an operating agreement stipulating how her money
would be invested and the rules under which it could be withdrawn, including an
explanation for how her capital contribution would be separated from his. Those
actions indicated planning in concealing offense conduct. See U.S.S.G. § 2B1.1,
cmt. (n.9(B)).
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Eyerman’s argument that there was nothing especially complex in how
Wolak transferred her money or how he spent does not convince us that the district
court clearly erred because not every action in his scheme needed to be
sophisticated to support the enhancement, so long as the totality of it was. See
Barrington, 648 F.3d at 1199. And although Wolak knowingly transferred money
to his personal account, that does not support Eyerman’s assertion that there was
nothing intricate about his concealment because the transfer was predicated on a
provision in the operating agreement he presented her that said her money was
being placed in an individual account he could not touch. Eyerman’s arguments
have not left us with a definite and firm conviction that the district court made a
mistake in applying the enhancement. Robertson, 493 F.3d at 1330. We affirm his
sentence.
IV. CONCLUSION
For the foregoing reasons, we affirm Eyerman’s convictions and sentence.
AFFIRMED.
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