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Mail fraud counts dismissed for material variance between the evidence and the indictment

The defendant, an attorney in Dixie County Florida, was convicted of mail fraud and money laundering charges relating to two separate fraudulent schemes. One scheme involved the defendant’s conversion of funds developers gave him to hold in trust for future expenses associated with a development (River Shores Scheme). The other scheme was convincing victims to invest in a vitamin company called GenSpec Labs (GenSpec) by misrepresenting the anticipated return on the investment and the viability of the company (GenSpec Scheme). The court in U.S. v. Lander found the proof presented at trial in connection with the River Shores mail fraud count materially varied from the allegations contained in the superseding indictment.

Landers practiced as an attorney and served as the Dixie County Attorney. He had business dealings beyond his legal work as he tried to start GenSpec. A group of developers planning the River Shores project retained Landers to help guide their project through the county’s regulatory process. The developers did not know at first he was the county attorney, but after they did they gave him $820,000 as a level of security to assure buyers their project would pass through the county’s regulatory process.

The indictment charges that Landers misrepresented to developers that they were required to pay a performance bond to Dixie County through him as its county attorney. It charged that Landers deposited the $820,000 as payment for the performance bond. At the trial the government failed to present evidence to support the specific charges that the defendant made false representations about having to pay a performance bond. The government instead presented evidence of a scheme to defraud that was entirely different from the one alleged in the indictment charging the River Shores scheme. The misrepresentations that the government relies upon as proof of the offense do not coincide with the allegation of the indictment. The evidence the government offered at trial to support this fraud varied so greatly from the allegations of the indictment the Landers was unable to prepare his defense. When a material variance substantially prejudices the Defendant as it did here, the variance constitutes reversible error. The Court also reversed the money laundering convictions because they were predicated on the River Shores mail fraud count.

The 11th Circuit affirmed the mail fraud conviction related to the GenSpec scheme. The 11th Circuit found the evidence sufficient to prove Lander intentionally tried to defraud GenSpec investors of money. Landers made fraudulent arrangements with one investor to help her pay a portion of the $1 million buy in Landers demanded. He told her a third party would lend her the money and convinced her to pay Lander a $50,000 loan origination fee for the fictitious loan. He also had her send him payments to pay off the fictitious debt. Instead, Landers used a portion of the investor’s payments to pay off a debt that Lander’s owed. Landers misrepresented the prospects of GenSpace by telling investors they would recoup investments in six months, and falsely representing that he lined up endorsements and contracts with major distributors