Opinion

United States v. Calh Holding Corp.

Court: Court of Appeals for the Eleventh Circuit
Filed: May 5, 2026
Status: Unpublished
Nature of suit: CON
Cited by: 0 cases
Authority: More cited than 40.4%

“In every conspiracy case, a not guilty plea renders the defendant’s intent a material is- sue.” (citation modiﬁed)

How later courts described this case

“In every conspiracy case, a not guilty plea renders the defendant’s intent a material is- sue.” (citation modiﬁed)
“We have long held that an appellant abandons a claim when he either makes only passing references to it or raises it in a perfunctory manner without supporting arguments and authority.”
“Ex- pert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful.” (citation modified)
affirming a defendant’s conviction because, even assuming a violation of the defendant’s right to a complete defense, the constitutional error “was harmless beyond a reasonable doubt”

Written by the judges who cited it.

The opinion

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-15168

____________________

UNITED STATES OF AMERICA,

Plaintiﬀ-Appellee,

versus

BYRAMJI MONECK JAVAT,

LUIS ALBERTO SOTO,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:18-cr-20668-DMM-1

____________________

No. 20-11137

____________________

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2 Opinion of the Court 19-15168

UNITED STATES OF AMERICA,

Plaintiﬀ-Appellee,

versus

BYRAMJI MONECK JAVAT,

LUIS ALBERTO SOTO,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:18-cr-20668-DMM-1

____________________

No. 21-13593

____________________

UNITED STATES OF AMERICA,

Plaintiﬀ-Appellee,

versus

BYRAMJI MONECK JAVAT,

Defendant,

CALH HOLDING CORP.,

PENNCO, LLC,

Intervenors-Appellants.

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19-15168 Opinion of the Court 3

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:18-cr-20668-DMM-1

____________________

Before ROSENBAUM, NEWSOM, and LUCK, Circuit Judges.

LUCK, Circuit Judge:

Byramji Javat and Luis Soto participated in a fraudulent dis-

count scheme. Javat told manufacturers that he was going to sell

goods abroad, including to the United States military in Afghani-

stan. Based on that representation, the manufacturers sold him

goods at a steep discount. But it was a lie. Javat never supplied

goods to the military and none of the goods were sold overseas.

Instead, once he secured the discounts, he sold the goods in the

United States for a substantial profit. Luis Soto was Javat’s logistics

partner who exported the goods overseas, imported them back to

the United States, forged documents to clear the goods with United

States Customs and Border Protection, and hid the goods’ final des-

tination from the manufacturers.

Javat and Soto were convicted and sentenced for their roles

in this scheme. They appeal their convictions, sentences, restitu-

tion, and forfeiture on numerous grounds. And two of Javat’s com-

panies—Calh Holding Corporation and Pennco, LLC—appeal the

district court’s order dismissing their challenge to the forfeiture of

two properties.

After careful consideration, we affirm Javat’s and Soto’s con-

victions and sentences, as well as the district court’s restitution and

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4 Opinion of the Court 19-15168

forfeiture orders. But we remand for the limited purpose of cor-

recting clerical errors in Javat’s criminal judgment to incorporate

the forfeiture order and money judgment.

FACTUAL BACKGROUND

The scheme was simple. Manufacturers generally sell

wholesale goods at a lower price abroad than they do at home. Ja-

vat tricked manufacturers to sell him goods at the lower price by

lying. Javat told them he was exporting goods to Afghanistan for

use by the Afghan government and the United States military. In

reality, Javat sold the goods in the United States. That allowed him

to undercut the manufacturers on price and still make a proﬁt on

the diﬀerence. Luis Soto was a customs broker who helped Javat

divert the goods into the United States by sending them to Dubai

and then importing them back into the United States through Mi-

ami. He also falsiﬁed import documentation and Customs forms

to keep the manufacturers in the dark.

The key to the scheme was a diﬀerence in how manufactur-

ers price goods for the domestic market and the export market. At

home, manufacturers front the costs of warehousing, marketing,

sales, compliance, and other overhead. These costs are absorbed

into the domestic wholesale price. Manufacturers sell to wholesal-

ers, wholesalers sell to distributors, distributors sell to retailers, and

retailers sell to consumers. With so many steps along the way, mar-

gins are thin—wholesalers, for example, often make only two to

ﬁve percent on each sale.

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Abroad, the picture is diﬀerent. When a manufacturer sells

to a foreign dealer, the dealer usually absorbs overhead costs like

warehousing, marketing, sales, and compliance. That means man-

ufacturers can charge much lower wholesale prices for goods sold

exclusively outside the United States. Manufacturers also want to

grow their international markets, giving them a further incentive

to keep prices low. The result is that the export price is often half

as much as the domestic wholesale price. Naturally, manufacturers

will only oﬀer this discounted price if they know goods will be sold

abroad—otherwise buyers could undercut manufacturers on their

home turf.

That’s exactly what Javat did. Javat operated a wholesale

company that purchased goods—including medical supplies, phar-

maceuticals, and food products—and sold them to distributors in

the United States. Javat and his employees told manufacturers that

his company supplied goods to the Afghan government and the

United States military in Afghanistan, shipping them via Dubai.

Based on that representation, manufacturers gave Javat steeply dis-

counted export-only prices, and some manufacturers agreed to

even lower below-cost prices because they wanted the opportunity

to provide goods to the United States military and its eﬀorts in re-

building Afghanistan.

Of course, none of this was true. Javat’s company didn’t sell

any goods abroad, let alone to the United States military or to the

Afghan government. In reality, Javat’s company shipped the goods

to Javat’s warehouse in Calhoun, Georgia. Javat then resold the

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goods to distributors in the United States, oﬀering lower prices than

the manufacturers while making larger proﬁts than he could have

buying at the domestic wholesale price.

Unsurprisingly, Javat went to great lengths to keep up the

ruse. To hide the scheme from the manufacturers, Javat and his

employees created fake documents to give his lies the air of truth.

These documents went into “excruciating detail” to help the man-

ufacturers “swallow th[e] story.” They explained where the goods

went in Afghanistan, what the goods were being used for, identiﬁed

the speciﬁc buildings where the goods were being used, and even

displayed the Afghan government’s oﬃcial letterhead. Javat and his

employees also created “dummy” bills of lading showing that the

goods were being sent to Afghanistan via Dubai.

To hide the scheme from distributors and retailers, Javat

made the goods look like they were intended for the domestic mar-

ket. He and his employees told the manufacturers to package the

goods for domestic use because the United States military was us-

ing the goods. To ensure consistency, Javat directed his employees

to remove any indication that the goods were for export only. They

altered labels, changed packaging, and removed export-only stick-

ers so the retailers wouldn’t catch on.

But some manufacturers wanted proof that the goods were

actually being exported via Dubai. So Javat needed someone to

coordinate sending the goods to Dubai and diverting them back to

the United States while clearing Customs without giving up the

scheme.

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That’s where Luis Soto entered the picture. Soto was a Mi-

ami customs broker and Javat’s “logistics partner.” Soto had exten-

sive experience clearing goods through the Port of Miami. He even

had experience diverting goods meant for export back into the

United States. In those earlier schemes, he removed all export-only

packaging and tracking devices from the goods, and then diverted

the goods back into the domestic market.

Soto helped export Javat’s goods to Dubai and reimport

them through Miami. To clear the goods through Customs, Soto

ﬁled false documents and misled Customs oﬃcials by misrepresent-

ing what the goods were and where they originated. Once he

cleared the goods, Soto arranged to have them sent from Miami to

Javat’s Georgia warehouse. In exchange for his services, Javat paid

Soto double the normal rate for a customs broker.

Eventually, some manufacturers and the government found

out about the scheme. That’s when the scheme ended and the

court proceedings began.

PROCEDURAL BACKGROUND

Because the district court proceedings were lengthy and

complicated, we’ll ﬁrst give an overview of the procedural back-

ground and then we’ll supplement with more detail as we discuss

the issues.

The government charged Javat and Soto with four federal

crimes: (1) conspiracy to commit wire fraud, in violation of

18 U.S.C. section 1349; (2) wire fraud, in violation of 18 U.S.C.

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8 Opinion of the Court 19-15168

section 1343; (3) conspiracy to obtain pre-retail medical products

by fraud, in violation of 18 U.S.C. section 670(a)(6); and (4) pre-re-

tail medical product theft, in violation of 18 U.S.C. sec-

tion 670(a)(1).

Javat and Soto moved to dismiss the wire fraud and conspir-

acy to commit wire fraud charges, arguing that the indictment

failed to state an oﬀense. After the district court denied the motion,

Javat pleaded guilty to the wire fraud conspiracy.

Soto went to trial. At trial, the district court made several

rulings relevant to this appeal. First, over Soto’s objection, the dis-

trict court allowed the government to introduce three sets of

emails under Federal Rule of Evidence 404(b) showing that Soto

helped past clients divert export goods back into the domestic mar-

ket. The district court also excluded one of Soto’s expert witnesses,

a customs attorney who would have testiﬁed that Soto’s actions did

not violate any Food and Drug Administration regulations, that en-

gaging in “gr[a]y market” transactions was not inherently illegal,

and that manufacturers can protect themselves from diversion. At

the close of the government’s case, the district court denied Soto’s

motion for a judgment of acquittal, which argued that there was

insuﬃcient evidence to establish his knowledge that the scheme

was fraudulent. The jury found Soto guilty on all charges. Soto

renewed his motion for judgment of acquittal on the same

grounds, which the district court also denied.

Javat and Soto proceeded to sentencing. The district court

ﬁrst determined that the loss amount under the United States

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Sentencing Guidelines was $36.5 million based on the average dis-

count Javat received from the usual domestic price, resulting in a

twenty-two-level guideline enhancement. For Javat and Soto, the

district court also applied a two-level enhancement because the of-

fense involved ten or more victims, and a four-level enhancement

because the oﬀense involved conduct described in 18 U.S.C. sec-

tion 670. 1 For Javat, the district court added a two-level enhance-

ment for misrepresenting that he was acting on behalf of a govern-

ment agency. And for Soto, the district court imposed a two-level

enhancement for using his special skill as a customs broker when

committing the oﬀenses, and declined his request for a minor role

reduction.

With the enhancements, Javat’s advisory guideline range

was 324 to 405 months and Soto’s was 210 to 262 months. The dis-

trict court granted them downward variances. It sentenced Javat

to 120 months’ imprisonment and Soto to 72 months’ imprison-

ment.

Then the district court held a restitution hearing. Javat ob-

jected that the government had not given him adequate notice of

which manufacturers were seeking restitution and asked to con-

tinue the hearing. The district court found that although Javat did

have adequate notice for some of the manufacturers, he did not

1 Section 670 prohibits, among other things, obtaining a “pre-retail medical

product” by fraud or deception. 18 U.S.C. § 670(a)(1). “Pre-retail medical

product” means “a medical product that has not yet been made available for

retail purchase by a consumer.” Id. § 670(e)(1).

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10 Opinion of the Court 19-15168

have suﬃcient information or notice to address the restitution re-

quests for a handful of other manufacturers. The district court

therefore set a second restitution hearing to allow Javat to address

the restitution requests for which he hadn’t received adequate no-

tice. Separately, Javat objected that 18 U.S.C. section 3664 did not

permit the government to collect and present its own evidence at a

restitution hearing.

Roughly two weeks before the second hearing, Javat served

subpoenas on the remaining manufacturers asking them to deliver

documents about transactions they had with other distributors and

to produce witnesses to give live testimony about how each manu-

facturer calculated its restitution request. The district court

quashed the subpoenas as untimely. After the restitution hearings,

the district court ordered that Javat and Soto were jointly and sev-

erally liable for $29,021,243.29 in restitution to ﬁfteen manufactur-

ers. As with the loss amount, the district court calculated the resti-

tution (over Javat’s objection) by comparing the average discount

Javat received with the full retail price of the goods.

Along with restitution, the district court also ordered forfei-

ture of $26,272,279.45 against Javat and entered a money judg-

ment. Javat raised several objections—all overruled—including

that: (1) forfeiture was improper because Javat’s indictment cited

the wrong forfeiture provision; (2) the district court violated the re-

quirements of Federal Rule of Criminal Procedure 32.2 by not ad-

equately incorporating its forfeiture orders into Javat’s criminal

judgment; (3) the government did not adequately trace the

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proceeds of the fraud to Javat; and (4) the court was not authorized

to enter a money judgment. Javat’s criminal judgment did not in-

corporate the forfeiture orders.

As part of the district court’s forfeiture order, it designated

the Georgia warehouse and a Washington, D.C., condominium

controlled by Javat as substitute forfeiture assets. Non-parties Calh

Holding Corp. and Pennco, LLC—the respective record title own-

ers of the Georgia and Washington properties—ﬁled petitions to

contest the substitute asset forfeiture in ancillary proceedings. The

district court dismissed the petitions after ﬁnding that Calh and

Pennco were straw owners for Javat’s beneﬁt and therefore lacked

standing to challenge the forfeiture.

Javat and Soto appeal their final amended criminal judg-

ments and sentences, and Calh and Pennco appeal the dismissal of

their petitions.

DISCUSSION

For ease of discussion, we divide the issues on appeal into

four groups: pretrial and trial proceedings; sentencing; restitution;

and forfeiture. For each issue, we first provide some additional

background and then analyze it.

I. Pretrial and Trial Proceedings

We start with the pretrial and trial proceedings that led to

Javat’s and Soto’s convictions. There are four issues on appeal:

(1) the denial of the motion to dismiss; (2) the district court’s ad-

mission of the government’s rule 404(b) evidence against Soto;

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12 Opinion of the Court 19-15168

(3) the district court’s exclusion of Soto’s expert’s testimony; and

(4) the suﬃciency of evidence for Soto’s conviction. We address

these issues in turn.

A. The Motion to Dismiss

Javat and Soto challenge the district court’s denial of their

motion to dismiss because they say the indictment did not allege a

scheme to defraud.2

1. Background

The indictment alleged that Javat and Soto engaged in a

scheme to “defraud” in which they obtained “goods at deeply dis-

counted prices . . . by falsely and fraudulently representing” to

manufacturers that they would export the goods “when, in fact,

[they], from the outset, intended to, and did in fact, sell those

goods” within the United States. Javat and Soto moved to dismiss

the wire fraud and conspiracy to commit wire fraud charges, argu-

ing that their alleged scheme did not economically harm the man-

ufacturers and thus was not an illegal scheme to defraud covered

by the fraud statutes. Drawing on a distinction we made in United

States v. Takhalov, 827 F.3d 1307 (11th Cir. 2016), abrogated by Kou-

sisis v. United States, 605 U.S. 114 (2025), they contended that the

2 We review a district court’s “denial of a motion to dismiss an indictment for

abuse of discretion,” United States v. Webster, 127 F.4th 318, 321 (11th Cir.

2025), but “[w]hether a criminal statute reaches a defendant’s conduct is re-

viewed de novo,” United States v. Lopez-Vanegas, 493 F.3d 1305, 1311 (11th Cir.

2007) (citing United States v. Calhoon, 97 F.3d 518, 523–24 (11th Cir. 1996)).

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indictment charged a legal scheme to deceive because the manu-

facturers received exactly what they bargained for—the money

they agreed to exchange for their goods.

The district court denied the motion to dismiss. It explained

that the alleged scheme harmed the manufacturers because they

could have charged the far higher domestic wholesale price absent

the misrepresentations. Because the manufacturers were harmed

by lost proﬁts, the district court concluded that the alleged scheme

was properly charged as an illegal scheme to defraud.

2. Analysis

As they did in the district court, Javat and Soto argue that the

scheme alleged in the indictment was a legal scheme to deceive un-

der Takhalov, rather than an illegal scheme to defraud, because the

manufacturers received all the money they were promised in ex-

change for their goods. But since Javat unconditionally pleaded

guilty, he waived his challenge to the indictment. Regardless, the

challenge fails on the merits because the indictment successfully

alleged an illegal scheme.

“[A]n unconditional guilty plea . . . waive[s] non-jurisdic-

tional defects in the proceedings . . . .” United States v. Tomeny, 144

F.3d 749, 751 (11th Cir. 1998). A defect in the indictment is jurisdic-

tional only if it aﬀects the district court’s subject matter jurisdic-

tion. See United States v. Leonard, 4 F.4th 1134, 1142 (11th Cir. 2021).

Because district courts have subject matter jurisdiction over “all of-

fenses against the laws of the United States,” 18 U.S.C. § 3231, a

jurisdictional defect arises “when an indictment fails to charge an

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14 Opinion of the Court 19-15168

oﬀense against [the laws of ] the United States,” Leonard, 4 F.4th at

1142. That only occurs in one of three ways: (1) when the indict-

ment charges the defendant with “a crime that . . . did not exist in

the United States Code”; (2) when the alleged conduct “undoubt-

edly fell outside the sweep of ” a federal criminal statute; or

(3) when the indictment alleges “a violation of a regulation that

was not intended to be a ‘law’ for purposes of criminal liability.”

United States v. Brown, 752 F.3d 1344, 1353 (11th Cir. 2014).

Here, Javat does not raise a jurisdictional defect under any

of those three ways. There was no jurisdictional defect under ei-

ther the ﬁrst or third way because the indictment charged Javat

with conspiracy to commit wire fraud, in violation of 18 U.S.C.

section 1349—a “crime that . . . exist[s] in the United States Code”

and imposes “criminal liability.” See id.; 18 U.S.C. § 1349 (imposing

criminal “penalties” on defendants convicted of conspiracy to com-

mit wire fraud).

And there was no jurisdictional defect under the second way

because the indictment alleged conduct that was within “the sweep

of ” section 1349. See Brown, 752 F.3d at 1353. Section 1349 prohib-

its conspiring to engage in a “scheme . . . to defraud” by “obtain-

ing . . . property by means of false . . . representations.” 18 U.S.C.

§§ 1343, 1349. The indictment alleged prohibited conduct by stat-

ing that Javat conspired with Soto and others to “defraud” manu-

facturers by obtaining “goods at deeply discounted prices . . . by

falsely and fraudulently representing” to the manufacturers that he

would export their goods. Because this alleged conduct did not fall

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outside the scope of the fraud statute, his challenge to the district

court’s denial of his motion to dismiss was nonjurisdictional and

waived by his unconditional guilty plea. See Tomeny, 144 F.3d at 751.

Javat resists that conclusion, arguing that his challenge raises

a jurisdictional defect because the indictment failed to allege con-

duct that falls “within the sweep” of section 1349. He analogizes

the indictment here to the one in United States v. Peter, 310 F.3d 709

(11th Cir. 2002). But Peter is inapposite.

In Peter, the indictment charged the defendant with mail

fraud by alleging that he conspired to fraudulently obtain alcoholic

beverage licenses. Id. at 711. After the defendant pleaded guilty,

the Supreme Court held in another case that fraudulently obtain-

ing licenses was not within the sweep of the mail fraud statute. Id.

at 711–12 (discussing Cleveland v. United States, 531 U.S. 12 (2000)).

Because the indictment “aﬃrmatively alleged a speciﬁc course of

conduct that [wa]s outside the” sweep of the mail fraud statute,

the district court lacked subject matter jurisdiction to accept the

defendant’s guilty plea. Id. at 715.

Here, the indictment did not aﬃrmatively allege a speciﬁc

course of conduct that the Supreme Court held was outside the

scope of the wire fraud conspiracy statute. Javat’s indictment al-

leged that he conspired with others to engage in a scheme to “de-

fraud” the manufacturers by obtaining “goods at deeply dis-

counted prices . . . by falsely and fraudulently representing” that

the goods were for export. That’s plainly within the sweep of the

wire fraud conspiracy statute, which prohibits conspiring with

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16 Opinion of the Court 19-15168

others “to defraud” by “obtaining . . . property by means of

false . . . representations.” See 18 U.S.C. §§ 1343, 1349.

Javat counters that his case is like Peter because the Supreme

Court’s decision in Ciminelli v. United States, 598 U.S. 306 (2023),

shows that his conduct falls outside the wire fraud conspiracy stat-

ute. But Ciminelli has nothing to do with the conduct alleged in

Javat’s indictment. There, the Supreme Court held that a depriva-

tion of the right to control the use of another’s assets is not a prop-

erty interest that can “form the basis for a conviction under” the

federal fraud statutes. Id. at 316. Here, nothing in the indictment

“aﬃrmatively alleged” that Javat deprived the manufacturers of

their right to control the goods. See Peter, 310 F.3d at 715.

In any case, even if Javat did not waive these arguments by

pleading guilty, they fail on the merits. In Takhalov, we held that

the wire fraud statute “forbids only schemes to defraud” and “not

schemes to do other wicked things, e.g., schemes to lie, trick, or

otherwise deceive.” 827 F.3d at 1310. We explained that an illegal

scheme to defraud requires the defendant “to use deception to

cause some injury,” while a legal scheme to deceive uses deception

“without intending to harm at all.” Id. at 1312.

The problem for Javat is that the Supreme Court, in Kousisis,

rejected the distinction we made in Takhalov. See 605 U.S. at 121

(citing Takhalov, 827 F.3d at 1312–14). In Kousisis, the defendant se-

cured a government contract based on false representations that he

would use a disadvantaged business for part of the project. Id. at

119. In fact, the disadvantaged business in the defendant’s bid was

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fake, and the defendant had a non-disadvantaged business do the

work instead. Id. A jury convicted the defendant of wire fraud,

and he appealed, arguing that the wire fraud statute could not sup-

port a conviction where the victim was not economically injured

by the false statement. Id. at 120. The Supreme Court aﬃrmed the

conviction and held that a scheme to deceive violates the wire

fraud statute “regardless of whether [the fraudster] seeks to leave

the victim economically worse oﬀ.” Id. at 124. The Court rejected

our approach in Takhalov because the wire fraud statute does not

contain any language indicating an “economic-loss requirement.”

Id. at 123. Instead, the Court explained, the wire fraud statute only

requires the defendant to “(1) ‘devise’ . . . a scheme (2) to ‘obtain

money or property’ (3) ‘by means of false or fraudulent pretenses,

representations, or promises.’” Id. (alterations adopted) (quoting

18 U.S.C. § 1343).

That’s exactly what the indictment alleged here. It stated

that Javat and Soto devised a scheme to obtain the manufacturers’

“goods at deeply discounted prices . . . by falsely and fraudulently

representing” that the goods were for export only. Because those

allegations amount to a violation of the wire fraud statute, see id.,

the district court did not err in denying the motion to dismiss.

B. The Government’s Rule 404(b) Evidence

As the next pretrial issue, Soto contends that the district

court erred in denying his motion to exclude the government’s

rule 404(b) evidence showing that Soto previously helped a

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18 Opinion of the Court 19-15168

distributor conceal diversion because the evidence was irrelevant

and substantially more prejudicial than probative. 3

1. Background

Before trial, the government gave Soto notice that it in-

tended to introduce two individual emails and another email chain

as evidence of prior acts under rule 404(b). In the first email, a dis-

tributor told Soto he had “some goods” from domestic “suppliers”

and wanted to divert the goods to domestic “customers.” To do so

without the suppliers knowing, the distributor asked Soto to re-

move “delivery notes” and “labels with addresses” from the goods’

packaging, to “open[] and check[]” “every single case” to ensure

there were no “tracking devices,” and then to ship the goods to the

distributor’s domestic customers. In the second email—sent just

two weeks after the first one—Soto wrote he “ha[d] a customer”

that needed “special services for cargo,” including “remov[al]” of

“any documents . . . attached to” the cargo and “[s]earch[ing] for

tracking devices” in “every single case.” His email then asked for a

quote for these services.

In the final email chain, which was sent several months after

the first two, the same distributor instructed Soto to check again

for tracking devices on an incoming shipment of goods. Soto re-

sponded to confirm that the distributor wanted him to do “all this

very costly work” as he did for the earlier shipment. In describing

3 We review for abuse of discretion a district court’s decision to admit evidence

under rule 404(b). United States v. Brown, 587 F.3d 1082, 1091 (11th Cir. 2009).

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the earlier shipment, Soto explained that the goods had to be ex-

ported overseas and then reimported “because [the distributor]

needed to show proof of exportation.”

Soto moved to exclude the emails for two reasons. First, he

argued that the emails were irrelevant to whether Soto knew about

Javat’s scheme to defraud the manufacturers in this case. Second,

he asserted that the emails were substantially more prejudicial than

probative given that the jury could think that this “unrelated prod-

uct diversion transaction” violated federal criminal law.

The government responded to both reasons. As to the first

one, the government argued that the emails were relevant to show

that Soto had “complete awareness” that his clients were lying to

their suppliers about exporting their goods and Soto knowingly

helped them cover it up by generating false export documents. As

to the second reason, the government maintained that the emails’

probative value far outweighed any unfair prejudice because the

main issue in Soto’s trial was whether he knew about and inten-

tionally engaged in Javat’s scheme and the emails provided strong

evidence that Soto knew that his clients were deceiving manufac-

turers about where their goods were going. The district court

agreed with the government and denied Soto’s motion to exclude

the emails.

To mitigate any prejudice, the district court gave a limiting

instruction about the emails at trial. Speciﬁcally, the district court

told the jury that it could not consider the emails “to decide if

[Soto] engaged in the activity alleged in the [i]ndictment” but that

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20 Opinion of the Court 19-15168

it could only “consider th[e] evidence to decide whether [Soto] had

the state of mind or intent necessary to commit the crime charged

in the indictment.”

2. Analysis

Rule 404(b) is a rule “of inclusion which allows extrinsic ev-

idence [of prior bad acts] unless it tends to prove only criminal pro-

pensity.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir. 2008)

(citation modiﬁed) (quoting United States v. Stephens, 365 F.3d 967,

975 (11th Cir. 2004)). Under rule 404(b), “[e]vidence of any other

crime, wrong, or act is not admissible to prove a person’s character

in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). But the

evidence is “admissible for another purpose, such as proving mo-

tive, opportunity, intent, preparation, plan, knowledge, identity, ab-

sence of mistake, or lack of accident.” Id. R. 404(b)(2).

“For evidence of other crimes or acts to be admissible under

[r]ule 404(b),” it must meet three requirements. United States v.

Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). First, the evidence

“must be relevant to an issue other than [the] defendant’s charac-

ter.” Id. Second, “there must be suﬃcient proof to enable a jury

to ﬁnd by a preponderance of the evidence that the defendant com-

mitted the act(s) in question.” Id. And third, the evidence must be

admissible under rule 403, meaning “the probative value of the ev-

idence cannot be substantially outweighed by undue prejudice.”

Id.

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Here, the emails met the three admissibility requirements.

As to the first requirement, the emails were “relevant to” show that

Soto knew about Javat’s fraudulent scheme and intentionally en-

gaged in it. Id. Specifically, the emails showed that Soto previously

exported and then reimported goods for a distributor so that the

distributor could have “proof of exportation.” The emails also

showed that Soto removed labels and delivery notes and searched

for and removed tracking devices for this distributor so that the dis-

tributor’s domestic suppliers would not know the goods were re-

imported.

Similarly, Javat’s fraudulent scheme involved exporting and

then reimporting goods so that Javat could have proof of exporta-

tion to support his false representation to the manufacturers that

the goods were destined for Afghanistan. And Javat’s scheme also

involved altering packaging to ensure that his domestic retailers

would not find out about his scheme. Because the emails showed

that Soto knew about and intentionally engaged in a scheme that

was materially identical to Javat’s scheme, the emails were relevant

to show that Soto knew his actions were intended to deceive the

manufacturers and that he intentionally engaged in Javat’s scheme.

See United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005) (“A

similarity between the other act and a charged offense will make

the other offense highly probative with regard to a defendant’s in-

tent in the charged offense.”).

As to the second requirement, the emails gave “suﬃcient

proof to enable [the] jury to ﬁnd by a preponderance of the

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22 Opinion of the Court 19-15168

evidence” that Soto knew about and intentionally engaged in the

earlier scheme. See Edouard, 485 F.3d at 1344. In the ﬁrst email, the

distributor told Soto that he had goods from domestic suppliers

and needed to direct them to domestic customers. To do so with-

out the suppliers or customers knowing, the distributor told Soto

to remove labeling and delivery notes and to search for tracking

devices from the goods’ packaging. In the second email, Soto con-

ﬁrmed that he had a customer needing “special cargo services,” in-

cluding removing labeling and delivery notes and searching for

tracking devices. And in the ﬁnal email chain, Soto said the pur-

pose of the earlier request was to give the distributor “proof of

exportation,” even though the goods were going to the distributor’s

domestic customers.

As to the third requirement, the emails’ probative value was

not “substantially outweighed by undue prejudice.” Id. Whatever

prejudice ﬂowed from the emails was minimized by the district

court’s limiting instruction that told the jury to consider the emails

“to decide whether [Soto] had the state of mind or intent necessary

to commit the crime charged in the indictment” but not “to decide

if [he] engaged in the activity alleged in the [i]ndictment.” See

United States v. Perry, 14 F.4th 1253, 1275 (11th Cir. 2021) (“[L]imit-

ing instructions about the proper way to consider 404(b) evi-

dence . . . reduce[] the risk of undue prejudice.”). Soto put his

knowledge and intent to engage in Javat’s scheme as the central, if

not only, issue at trial by pleading not guilty, by moving for judg-

ment of acquittal based on insuﬃcient evidence of knowledge and

intent, and by asserting to the jury in closing argument that there

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19-15168 Opinion of the Court 23

was insuﬃcient evidence of those elements. See United States v.

McNair, 605 F.3d 1152, 1203 (11th Cir. 2010) (“In every conspiracy

case, a not guilty plea renders the defendant’s intent a material is-

sue.” (citation modiﬁed)). The emails showing Soto’s knowledge

and intent were highly probative in this case, and outweighed any

lingering prejudice after the instruction was given. Because the

three requirements were met, the district court did not err in deny-

ing Soto’s motion to exclude the government’s rule 404(b) evi-

dence. See Edouard, 485 F.3d at 1344.

Even so, Soto contends that the emails were inadmissible

hearsay. Soto is mistaken. Hearsay—an out-of-court statement of-

fered to prove the truth of the matter asserted—is generally inad-

missible. See Fed. R. Evid. 801(c), 802. But an opposing party’s

statement is not hearsay. Fed. R. Evid. 801(d)(2). Likewise, a state-

ment by a non-testifying declarant embedded in a conversation

with an opposing party is not inadmissible hearsay if it is offered to

show the statement’s effect on the opposing party. See, e.g., Perry,

14 F.4th at 1273–74 (finding that statements by a non-testifying de-

clarant in conversation with the defendant were not hearsay be-

cause they “were offered to show their effect on” the defendant).

Here, Soto’s statements were admissible because they were made

by an opposing party and his correspondents’ statements were ad-

missible because they were offered for their effect on Soto rather

than for their truth. See id.; Fed. R. Evid. 801(d)(2)(A).

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24 Opinion of the Court 19-15168

C. Soto’s Expert Testimony

In the third issue, raised at trial, Soto argues that the district

court abused its discretion in excluding his proposed expert’s testi-

mony. 4

1. Background

As part of his defense, Soto sought to call a customs attorney

as an “expert on FDA importing.” Soto proffered that the expert

would testify that the reimportation of goods into the United States

did not violate any FDA regulations, that engaging in “gr[a]y mar-

ket” transactions was not necessarily illegal, and that manufactur-

ers can protect themselves against diversion risk by exporting

goods themselves or by rendering their goods non-compliant with

FDA regulations (for example, by labeling goods in the language of

the country to which the product is intended for export).

The government moved to exclude the expert’s testimony,

arguing: (1) it was inadmissible under rule 401 because it was irrel-

evant to any material fact in the case; (2) it was inadmissible under

rule 403 because it was confusing and misleading; (3) it was inad-

missible under rule 404(b) because evidence that Soto complied

with FDA regulations was impermissible “good acts” evidence as

Soto was not charged with violating any regulations; (4) it was in-

admissible under rule 702’s requirements for expert testimony be-

cause it was “unhelpful” to the jury; and (5) it impermissibly sought

4 We review for abuse of discretion the exclusion of expert witness testimony.

United States v. Barton, 909 F.3d 1323, 1330 (11th Cir. 2018).

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19-15168 Opinion of the Court 25

to “blame the victims”—the manufacturers—for failing to prevent

diversion.

The district court agreed with the government and granted

the motion to exclude Soto’s expert’s testimony. The district court

found that the expert’s testimony was irrelevant, that it would

likely cause jury confusion because Soto’s compliance with Cus-

toms or FDA requirements was not part of the government’s case,

that it was akin to impermissible good acts evidence, and that the

testimony impermissibly blamed the victims.

2. Analysis

The district court did not abuse its discretion in excluding

Soto’s expert because his testimony was irrelevant. “Irrelevant ev-

idence is not admissible.” Fed. R. Evid. 402. Under rule 401, evi-

dence is relevant when “it has any tendency to make a fact more or

less probable than it would be without the evidence” and “the fact

is of consequence in determining the action.” Id. R. 401.

Here, the government charged Soto with knowingly partic-

ipating in Javat’s scheme to defraud manufacturers by representing

that the goods would be sold overseas to obtain lower export pric-

ing and then selling the goods for a substantial profit in the United

States, undercutting the manufacturers. The government never

argued that Soto violated FDA regulations or that his participation

in gray market transactions was necessarily illegal, so whether Soto

complied with FDA regulations or whether gray market transac-

tions could be conducted legally had no bearing on whether he

knowingly participated in the scheme to defraud. The expert’s

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26 Opinion of the Court 19-15168

testimony that manufacturers can protect themselves from diver-

sion was likewise irrelevant to whether Soto intentionally de-

frauded the manufacturers. In a fraud case, the relevant question

is “the intent of the malefactor, not the reasonableness of the vic-

tim[.]” United States v. Svete, 556 F.3d 1157, 1162 (11th Cir. 2009)

(citing Durland v. United States, 161 U.S. 306, 315 (1896)). For this

reason, “[t]he negligence of the victim in failing to discover a fraud-

ulent scheme is not a defense to criminal conduct.” Id. at 1167

(quoting United States v. Coyle, 63 F.3d 1239, 1244 (3d Cir. 1995)).

Because the expert’s testimony was not relevant, it also

flunked rule 702’s requirements. Rule 702 requires that expert tes-

timony “help the trier of fact to understand the evidence or to de-

termine a fact in issue.” Fed. R. Evid. 702(a). But since no part of

the expert’s testimony was relevant to a material fact in Soto’s case,

it failed to meet rule 702’s helpfulness requirement. See id.; see also

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993) (“Ex-

pert testimony which does not relate to any issue in the case is not

relevant and, ergo, non-helpful.” (citation modified)).

Soto responds that the expert’s testimony was relevant to

Soto’s knowledge and intent “of the offenses charged because it

showed that a broker’s knowledge that he/she was handling gray

market goods was not a ‘red flag’ that they were obtained through

a scheme to defraud or fraudulently obtained as charged in the in-

dictment.” According to Soto, this testimony was necessary to re-

but a government witness—one of his coconspirators—who

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19-15168 Opinion of the Court 27

testified that there was no legitimate purpose for engaging in the

gray market.

There are two problems with Soto’s argument. First, it mis-

characterizes the coconspirator’s testimony. The coconspirator

testified that there was no legitimate purpose in exporting and then

immediately reimporting goods because doing so would incur sig-

nificant additional costs for no commercial reason. He did not tes-

tify that there was no legitimate purpose to gray market transac-

tions in general or that such transactions were inherently illegal.

Second, Soto never proffered to the district court that the expert’s

testimony would show that handling gray market goods was not a

“red flag” that the goods were obtained through a scheme to de-

fraud.

Soto also contends that the district court’s exclusion of his

expert’s testimony violated his constitutional right to present a

complete defense under the Fifth and Sixth Amendments. Relying

on our decision in United States v. Hurn, 368 F.3d 1359 (11th Cir.

2004), Soto argues that the Constitution required the district court

to allow his expert’s testimony to combat the government’s evi-

dence that Soto knew about and intentionally engaged in Javat’s

fraudulent scheme.

In Hurn, we explained that the Fifth Amendment’s right to

“due process of law” and the Sixth Amendment’s right to “have

compulsory process for obtaining witnesses in [a defendants’] fa-

vor” require “that criminal defendants must be afforded the oppor-

tunity to present” a complete defense. See id. at 1362 (citation

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28 Opinion of the Court 19-15168

modified); see also United States v. Mitrovic, 890 F.3d 1217, 1221 (11th

Cir. 2018) (explaining that the Constitution ensures that defendants

have “a meaningful opportunity to present a complete defense” (ci-

tation modified)). We also provided a two-part test to analyze

whether a defendant’s conviction should be reversed for violating

the right to a complete defense. See Hurn, 368 F.3d at 1362–63. Un-

der that test,“[w]e first examine whether this right was actually vi-

olated, then turn to whether this error was ‘harmless beyond a rea-

sonable doubt.’” Id. (quoting Chapman v. California, 386 U.S. 18, 24

(1967)). If the defendant’s constitutional claim fails under either

step, his conviction stands. See id. at 1363; see also United States v.

Pon, 963 F.3d 1207, 1228 (11th Cir. 2020) (affirming a defendant’s

conviction because, even assuming a violation of the defendant’s

right to a complete defense, the constitutional error “was harmless

beyond a reasonable doubt”).

Under the first part of the test, we have made clear that “a

defendant’s right to present a complete defense is not absolute[]

and is subject to reasonable restrictions.” Mitrovic, 890 F.3d at 1221

(citing United States v. Scheffer, 523 U.S. 303, 308 (1998)). These rea-

sonable restrictions allow “state and federal rulemakers” to have

“broad latitude . . . to establish rules excluding evidence from crim-

inal trials.” Scheffer, 523 U.S. at 308. Indeed, “the Supreme

Court . . . has never held that a federal rule of evidence violated a

defendant’s right to present a complete defense.” Mitrovic, 890 F.3d

at 1221–22 (emphasis omitted). And we have “never overturned a

district court’s proper application of a [f]ederal [r]ule of [e]vidence”

as a violation of a defendant’s right to present a complete defense.

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19-15168 Opinion of the Court 29

Id. at 1222; see also United States v. Frazier, 387 F.3d 1244, 1272 (11th

Cir. 2004) (en banc) (“[W]hile a criminal defendant must be given

every meaningful opportunity to present a complete defense, in

doing so he must comply with the procedural and evidence rules

designed to facilitate a search for truth.”).

Soto’s constitutional claim fails under the first part of the

Hurn test. The district court properly excluded the expert’s testi-

mony under the rules of evidence because Soto did not state a basis

for concluding it was relevant and helpful to the jury. See Fed R.

Evid. 401, 702(a). As we explained above, the coconspirator did not

testify that there was no legitimate purpose to gray market trans-

actions in general or that such transactions were inherently illegal.

And Soto never proffered to the district court that the expert would

testify that handling gray market goods was not a “red flag” that

the goods were obtained through a scheme to defraud.

D. Sufficiency of the Evidence as to Soto

As the final trial issue, Soto argues that the district court

erred in denying his motion for judgment of acquittal because the

evidence was insufficient to establish that Javat’s pricing scheme

defrauded manufacturers or that Soto had knowledge of the

scheme.5

5 We review de novo the sufficiency of the evidence when the defendant has

preserved his claim by moving for judgment of acquittal. United States v. Az-

mat, 805 F.3d 1018, 1035 (11th Cir. 2015). In doing so, “[w]e examine ‘whether

the evidence, when viewed in the light most favorable to the government, and

accepting reasonable inferences and credibility choices by the fact-finder,

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30 Opinion of the Court 19-15168

1. Background

After the government rested its case, Soto moved for judg-

ment of acquittal on two grounds. First, Soto argued that he was

entitled to a judgment of acquittal because the evidence showed

that Javat’s scheme was a legal scheme to deceive, rather than an

illegal scheme defraud, given that the manufacturers were paid the

amount they agreed to sell their goods. Second, he asserted that

he was entitled to a judgment of acquittal because there was insuf-

ficient evidence for a reasonable jury to conclude that he knew

about or intentionally engaged in Javat’s scheme. The district

court denied Soto’s motions.

After Soto rested his case, the jury entered a guilty verdict

on all counts. He then renewed his motion for judgment of acquit-

tal on the same grounds. The district court denied the renewed

motion.

2. Analysis

i. The Illegal Scheme

Soto first contends that the evidence was insufficient to

show that the scheme was an illegal scheme to defraud. This argu-

ment fails for the same reasons as Soto’s challenge to the district

would enable the trier of fact to find the defendant guilty beyond a reasonable

doubt.’” Id. (quoting United States v. Monroe, 866 F.2d 1357, 1365 (11th Cir.

1989)).

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19-15168 Opinion of the Court 31

court’s denial of his motion to dismiss: the scheme was illegal both

as charged and as supported by the evidence.

To convict a defendant of a wire fraud conspiracy, the gov-

ernment must prove beyond a reasonable doubt that the defendant

conspired with another person to commit wire fraud. See 18 U.S.C.

§ 1349. And to convict a defendant of wire fraud, the government

must prove beyond a reasonable doubt that the defendant “(1) ‘de-

vis[ed]’ . . . a scheme (2) to ‘obtai[n] money or property’ (3) ‘by

means of false or fraudulent pretenses, representations, or prom-

ises.’” Kousisis, 605 U.S. at 123 (quoting 18 U.S.C. § 1343).

Here, there was sufficient evidence for a reasonable jury to

conclude Soto and Javat schemed to “obtain . . . property by means

of false . . . representations.” Id. at 123. The government presented

evidence from five manufacturers—Sklar Corporation, Andover

Corporation, Parkell, Inc., Bayer AG, and DeMet’s Candy Com-

pany—that supplied Javat’s company with consumer goods at dis-

counted prices on the belief that the goods were destined for Af-

ghanistan. Representatives from four of the companies—Sklar,

Andover, Parkell, and Bayer—testified at Soto’s trial and told the

same story. They testified that Javat or someone from his whole-

saling company represented to them that Javat’s company supplied

goods to the United States military in Afghanistan or the Afghan

government. The representatives explained that they sold Javat

goods at steeply discounted export-only prices—far lower than

their domestic wholesale prices—which they would never have of-

fered had they known that Javat planned to sell the goods in the

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32 Opinion of the Court 19-15168

United States. One of Javat’s coconspirators testified that none of

the goods went to Afghanistan and instead Javat, with Soto’s help,

exported the goods to Dubai and reimported them right back into

the United States to sell at a substantial profit.

The story was the same for the fifth manufacturer, DeMet’s

Candy. Javat’s employees told DeMet’s Candy that they supplied

an Afghan relief agency—Afghanistan Reconstruction and Devel-

opment Services—and that DeMet’s Candy was “requested to

share the best economical prices to win this business.” DeMet’s

Candy agreed to sell goods to Javat’s company “at a discount below

usual pricing of [p]roducts to domestic customers” but only “upon

condition that [the p]urchaser agreed” that any products would “be

exported exclusively to . . . Afghanistan” and that the company

would not divert the products back into the United States. Later,

DeMet’s Candy learned that the goods it sold to Javat’s company

at a “discounted price” were being diverted “to one of [its] major

[U.S.] customers,” which was “costing [DeMet’s Candy] a lot of

time and money.” It informed Javat’s employees of the issue and

asked them to provide documents proving the goods ended up in

Afghanistan, but they gave DeMet’s Candy the runaround, claim-

ing they were not allowed to provide these documents.

Soto, citing the Ninth Circuit’s decision in United States v.

Bruchhausen, 977 F.2d 464 (9th Cir. 1992), argues that this evidence

established only that the scheme deprived the manufacturers of

their ability to control the destination of the goods they sold, which

is not a violation of the wire fraud statute. But Bruchhausen is

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19-15168 Opinion of the Court 33

inapplicable here. For one thing, the Supreme Court abrogated

Bruchhausen in Kousisis just as it did Takhalov because fraud does not

require an economic injury. See Kousisis, 605 U.S. at 121 (citing

Bruchhausen, 977 F.2d at 467–68). For another thing, the evidence

in Soto’s case showed that Javat did not pay full price for the goods

thanks to his lies, which even the Bruchhausen court found was a

fraud. See Bruchhausen, 977 F.2d at 467 (noting that the victim man-

ufacturers were not “defrauded of ‘property’ within the meaning

of the [wire fraud] statute” because they “received the full sale price

for their products” and therefore “clearly suffered no monetary

loss”); see also 18 U.S.C. § 1343.

ii. Soto’s Knowledge and Intent

Next, Soto argues that the district court erred in denying his

motion for judgment of acquittal and motion for new trial because

there was insufficient evidence he knowingly or intentionally en-

gaged in Javat’s scheme. This argument also fails because the evi-

dence was sufficient that Soto had knowledge and intent to engage

in Javat’s scheme to defraud the manufacturers.

The government presented the emails from Soto’s earlier

scheme, showing that Soto knew that practices like falsifying im-

port documentation of reimported goods were intended to deceive

manufacturers. And the government presented evidence of Soto’s

role in the scheme. A coconspirator testified that Soto was Javat’s

trusted logistics partner who exported the goods to Dubai and re-

imported the goods through Miami so that Javat could have proof

of exportation. The coconspirator explained that Javat and Soto

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34 Opinion of the Court 19-15168

initially exported goods to Dubai because this was consistent with

the story they told the manufacturers—that the goods were des-

tined for Afghanistan. They reimported the goods through Mi-

ami—even though it was more expensive to use than other ports—

because that was the port Soto knew best and where the goods had

the best chance of clearing Customs. Further, the coconspirator

testified that there was no legitimate purpose to export and imme-

diately reimport goods because doing so would incur significant

additional costs for no commercial purpose. For his role in the

scheme, Soto earned double the amount a customs broker would

normally earn.

Soto’s emails with Javat confirmed that he knew about the

nature of Javat’s scheme. One email chain showed that Soto knew

Javat obtained goods from a manufacturer and needed the goods

exported and reimported without the manufacturer knowing. In

another email chain, Soto and his coconspirators discussed doctor-

ing a bill of lading while the goods were being shipped overseas. In

that exchange, Soto told his coconspirators that the bill of lading

should show that the goods were going to Dubai because “this is

where the supplier believes [the] cargo is going.”

Finally, the government presented evidence that Soto lied to

Customs to get the goods cleared through Miami. Soto told Cus-

toms that the reimported goods were “over stocked products from

suppliers overseas who[] purchase products from different manu-

facturers and in many cases from [the United States.]” He also

falsely told Customs that “we were not the original exporter from

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19-15168 Opinion of the Court 35

[the United States] and we have no way of getting proof of the orig-

inal exportation of [the] good[s] now being re-imported.” On an-

other occasion, Soto directed other coconspirators to identify the

manufacturers’ facility number issued by the FDA so that Soto

could use that information on Customs forms when reimporting

the goods through Miami. But Soto made clear to the coconspira-

tors that they could not request this information from the manu-

facturers because this would cause them to discover that the goods

were being reimported.

In sum, the evidence showed that Soto knew how to create

false proof of exportation to further an illegal scheme to defraud,

that Soto created false proof of exportation to further Javat’s illegal

scheme to defraud, and that he knew to hide that the proof of ex-

portation he created was false so Javat’s illegal scheme could con-

tinue. When viewing this evidence in the light most favorable to

the jury’s verdict, there was sufficient evidence for a reasonable

jury to conclude that Soto had knowledge of and intentionally en-

gaged in Javat’s scheme to defraud the manufacturers.

II. Sentencing

We now move to Javat’s and Soto’s issues with their sen-

tences. They raise six issues on appeal. Javat and Soto argue that

the district court erroneously applied: (1) a twenty-two-level en-

hancement based on the loss amount; (2) a two-level enhancement

because the offense involved ten or more victims; and (3) a four-

level enhancement because the offense involved conduct described

in 18 U.S.C. section 670. Javat also argues that the district court

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36 Opinion of the Court 19-15168

erroneously applied (4) a two-level enhancement for misrepresent-

ing that he was acting on behalf of a government agency. And Soto

contends that the district court (5) erroneously applied a two-level

enhancement for using a special skill during the offense; and

(6) should have granted him a minor role reduction. We address

each issue in turn.

A. The Loss-Amount Enhancement

First, Javat and Soto argue that the district court erred in cal-

culating the loss amount using lost profits instead of out-of-pocket

loss. 6

1. Background

The United States Probation Office prepared presentence in-

vestigation reports for Javat and Soto. The probation office deter-

mined that the loss amount was $84,660,587.08 because Javat’s

company purchased $84,660,587.08 worth of goods and, on aver-

age, received a fifty-percent discount on those goods, depriving the

manufacturers of $84,660,587.08 in additional profits. Because the

loss amount was between $65 million and $150 million, the proba-

tion office enhanced Javat’s and Soto’s base offense levels by

twenty-four.

6 We review de novo a district court’s interpretation and application of the

sentencing guidelines, and we review for clear error its finding about the loss

amount. United States v. Stein, 846 F.3d 1135, 1151 (11th Cir. 2017).

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19-15168 Opinion of the Court 37

Javat and Soto objected that lost profits were not the correct

measure of loss. They asserted that the correct measure was out-

of-pocket loss—that is, the purchase price minus the cost of pro-

duction. And because the manufacturers made a profit, they had

no out-of-pocket loss, so no enhancement should apply.

The district court agreed with the probation office that lost

profits were a valid measure of loss. But the district court pointed

out that the probation office had mistakenly calculated the loss

amount using sales from 2008 to 2018, whereas the indictment

charged that the conspiracy was ongoing from March 2014 to Oc-

tober 2017. The district court therefore determined that the cor-

rect loss amount was $36,500,321.83 because Javat’s company pur-

chased $36,500,321.83 worth of goods and received a fifty-percent

average discount during the charged conspiracy period, depriving

the manufacturers of $36,500,321.83 in additional profits. And

since the loss amount was between $25 million and $65 million, the

district court enhanced Javat’s and Soto’s base offense levels by

twenty-two. See United States Sentencing Guidelines

§ 2B1.1(b)(1)(F) (Nov. 2018).

2. Analysis

The district court did not clearly err in determining the loss

amount because lost proﬁts were a valid method for calculating loss

caused by a fraudulently obtained discount where the evidence

shows that the lost proﬁts represent the pecuniary harm to the vic-

tim. “In a fraud case,” the sentencing guidelines provide for en-

hancements based on “the loss resulting from the oﬀense.” United

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38 Opinion of the Court 19-15168

States v. Annamalai, 939 F.3d 1216, 1235 (11th Cir. 2019) (citing

U.S.S.G. § 2B1.1(b)(1)).” The “legal cause standard we use under

[section] 2B1.1(b) is reasonable foreseeability.” Stein, 846 F.3d at

1155. “Because ‘often the amount of loss caused by fraud is diﬃ-

cult to determine accurately,’ a [district] court can use a ‘reasonable

estimate’ of the loss.” Annamalai, 939 F.3d at 1235 (quoting United

States v. Medina, 485 F.3d 1291, 1304 (11th Cir. 2007)).

Using lost proﬁts to calculate the loss amount is “entirely

commensurate with the degrees of loss that [defendants] reasona-

bly expected to occur.” United States v. Marti-Lon, 524 F.3d 295, 302

(1st Cir. 2008). Fraudulently obtained discounts deprive the victim

“of the opportunity to sell th[e] same [goods] at a non-discounted

price.” Id. That’s why several of our sister circuits have held that

using lost proﬁts caused by a fraudulently obtained discount is a

valid loss calculation method as a reasonable measure of the pecu-

niary harm to victims. See United States v. White, 846 F.3d 170, 179

(6th Cir. 2017) (ﬁnding that the district court’s determination of

loss was not “outside the universe of acceptable computations”

when the victim “airlines used standard ticket-auditing practices to

determine the diﬀerence between the fares [the defendant] ob-

tained fraudulently and the next-cheapest fare possible”); United

States v. Farano, 749 F.3d 658, 665 (7th Cir. 2014) (“The defendants

argue that HUD lost nothing because it would have sold the prop-

erties at a discount to someone else. The argument is unsound.

HUD was led to believe that it was buying something of value to it

for the amount of the discounts, namely low- and moderate-in-

come housing; and the defendants stole the money, thus depriving

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19-15168 Opinion of the Court 39

HUD of a thing of value that had been promised.”); United States v.

Ali, 620 F.3d 1062, 1073–74 (9th Cir. 2010) (ﬁnding no error when

the “district court relied upon spreadsheets, created by IRS agents,

that approximated the diﬀerence between the full retail price of the

software sold by [d]efendants and the . . . price [d]efendants paid for

it”); Marti-Lon, 524 F.3d at 301–02.

Here, the manufacturers’ testimony at Soto’s trial showed

that they suﬀered a ﬁnancial loss because they discounted their

goods by ﬁfty percent or more based on the fraudulent misrepre-

sentations that the goods were for export. Accounting records

from coconspirators indicated that Javat’s company purchased

$36,500,321.83 worth of goods during the charged conspiracy pe-

riod and received a ﬁfty-percent average discount on those goods

based on the fraudulent representations. By giving away a ﬁfty-

percent average discount on those goods, the manufacturers lost

approximately $36,500,321.83 in proﬁts. This evidence gave the dis-

trict court a “suﬃcient basis” to estimate the “loss caused by” the

scheme at $36,500,321.83. Annamalai, 939 F.3d at 1237.

Citing our decision in Stein, Javat and Soto reject this con-

clusion, arguing that the government didn’t prove the discounts

were a result of fraud. In Stein, we vacated the defendant’s sen-

tence in a securities fraud case because the record did not suffi-

ciently establish that the purported victims relied on the defend-

ant’s fraudulent statements and the district court failed to consider

the possibility that intervening circumstances contributed to the

loss. See Stein, 846 F.3d at 1155–56. But here, unlike in Stein, the

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40 Opinion of the Court 19-15168

record showed that the manufacturers relied on the misrepresen-

tations to offer the discounts. And Javat and Soto have not pointed

to any intervening circumstances that caused the manufacturers’

losses. 7

B. The Victim Enhancement

As their next sentencing issue, Javat and Soto argue that the

district court erred in ﬁnding that the scheme involved ten or more

victims.8

1. Background

In calculating Javat’s and Soto’s sentences, the probation of-

fice enhanced their base offense levels by two because the scheme

involved ten or more victims. See U.S.S.G. § 2B1.1(b)(2)(A)(i). Ja-

vat and Soto objected to this enhancement because the record did

not reflect that ten or more victims were harmed.

At the sentencing hearing, the government presented evi-

dence showing the scheme involved ten or more victims. First, the

7 Javat and Soto finally contend that the district court improperly rejected as

untimely Javat’s request to issue subpoenas seeking the manufacturers’ trans-

action and pricing records. Javat moved for the district court to issue subpoe-

nas under Federal Rule of Criminal Procedure 17 six days before his sentencing

hearing. “The issuance of subpoenas under [rule] 17 is within the trial court’s

discretion, and timeliness is one of the factors the trial court may consider.”

United States v. Perez-Tosta, 36 F.3d 1552, 1556 n.2 (11th Cir. 1994). We find no

abuse of discretion in the district court’s call that Javat’s request was untimely.

8 We review for clear error the district court’s calculation of the number of

victims. See United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013).

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19-15168 Opinion of the Court 41

government relied on the evidence from Soto’s trial showing that

five manufacturers—Andover, Bayer, Parkell, Sklar, and DeMet’s

Candy—gave Javat’s company discounts based on the fraudulent

misrepresentations about where the goods were going. Next, the

government presented Javat’s emails advertising to potential buy-

ers that his company previously sold goods from five other manu-

facturers—“Convatec, 3M, Braun, Bard, [and] Biogel Gloves”—

and that he could offer “significant cost savings” on goods due to

his “procurement strategies.” Third, the government provided Ja-

vat’s company’s “deal profitability sheets,” which identified six

more manufacturers from which Javat received large discounts—

Horiba Medical, Pascal International, Splenda, Storck Candy, Sur-

gical Specialties, and Whip Mix. And finally, the government sub-

mitted shipping reports showing that Javat’s company shipped

goods from nearly thirty more manufacturers during a six-month

period in 2017.

2. Analysis

The government provided suﬃcient evidence for the district

court to ﬁnd that Javat’s and Soto’s oﬀenses involved ten or more

victims. Section 2B1.1(b)(2)(A)(i) imposes a two-level enhance-

ment when the defendant’s oﬀense “involved [ten] or more vic-

tims.” U.S.S.G. § 2B1.1(b)(2)(A)(i). The number of victims is a

question of fact that the government must prove by a preponder-

ance of the evidence. See Rodriguez, 732 F.3d at 1305. The number

of victims must be supported by “reliable and speciﬁc evidence.”

United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). When

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42 Opinion of the Court 19-15168

making this ﬁnding, the district court can “make reasonable infer-

ences from the evidence.” United States v. Matthews, 3 F.4th 1286,

1289 (11th Cir. 2021) (citations omitted).

The evidence from Soto’s trial established that ﬁve manufac-

turers—Andover, Bayer, Parkell, Sklar, and DeMet’s Candy—gave

Javat’s company discounts based on Javat’s misrepresentations

about where the goods were going to be sold. And Javat’s com-

pany’s “deal proﬁtability sheets” identiﬁed six more manufactur-

ers—Horiba Medical, Pascal International, Splenda, Storck Candy,

Surgical Specialties, and Whip Mix—that also gave large discounts

to Javat’s company. Javat’s advertising emails established his com-

pany oﬀered goods from “Convatec, 3M, Braun, Bard, [and] Biogel

Gloves” at “signiﬁcant cost savings” due to Javat’s company’s “pro-

curement strategies.” This evidence was both reliable and speciﬁc,

Lawrence, 47 F.3d at 1566, and it identiﬁed more than ten manufac-

turers that suﬀered a loss.

In addition, the government presented weekly shipping re-

ports maintained by Javat’s company that showed the conspirators

handled goods from nearly thirty more manufacturers in 2017.

Considering the evidence that demonstrated the scheme’s procure-

ment methods, the district court made a “reasonable inference[]”

that these manufacturers oﬀered discounted goods based on simi-

lar misrepresentations. See Matthews, 3 F.4th at 1289.

C. The Pre-Retail Medical Product Theft Enhancement

Third, Javat and Soto argue the district court clearly erred in

applying the enhancement for pre-retail medical product theft.

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19-15168 Opinion of the Court 43

1. Background

The probation office recommended a four-level increase to

Javat’s and Soto’s base offense levels because their offenses in-

volved conduct described in 18 U.S.C. section 670 and they were

each agents or employees of an organization in the supply chain of

a pre-retail medical product. See U.S.S.G. § 2B1.1(b)(8)(B). Javat

and Soto objected. Javat argued that this enhancement did not ap-

ply to him because he did not plead guilty to a section 670 offense,

that making misrepresentations to obtain a lower price on products

did not constitute obtaining the products by fraud, and that he was

not an employee or agent of a company in the supply chain of a

pre-retail medical product. Soto joined Javat’s objection, which the

district court overruled.

2. Analysis

The district court properly applied the enhancement for pre-

retail medical product theft. The enhancement has three elements.

First, the oﬀense must “involve[] conduct described in 18 U.S.C.

[section] 670,” U.S.S.G. § 2B1.1(b)(8)(B), which makes it unlawful

to obtain pre-retail medical products by fraud or deception, see 18

U.S.C. § 670(a)(1). Second, the defendant must be “employed by,

or . . . an agent of, an organization.” U.S.S.G. § 2B1.1(b)(8)(B). And

third, the organization must be “in the supply chain for the pre-

retail medical product.” Id.

Javat met each element. First, Javat obtained pre-retail med-

ical products from manufacturers by fraud and deception, which is

“conduct described in 18 U.S.C. [section] 670.” U.S.S.G.

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44 Opinion of the Court 19-15168

§ 2B1.1(b)(8)(B); see also 18 U.S.C. § 670(a)(1). For example, a rep-

resentative from Parkell, a medical-products manufacturer, testi-

ﬁed at Soto’s trial that Parkell sold Javat medical products based on

his fraudulent misrepresentations that the products were for ex-

port, and he testiﬁed that Parkell would not have sold Javat the

products had Parkell known they were not for export. Second, Ja-

vat, because he owned and operated it, was “an agent of ” his

wholesaling company. See U.S.S.G. § 2B1.1(b)(8)(B). And third, Ja-

vat’s wholesaling company sold pre-retail medical products to re-

tailers and, thus, it was “in the supply chain for the pre-retail medi-

cal product.” Id.

Javat counters that he does not meet the ﬁrst element be-

cause he did not plead guilty to a section 670 oﬀense. But sec-

tion 2B1.1(b)(8)(B) does not require a conviction under section 670

for the enhancement to apply. See id. It only requires that a defend-

ant’s oﬀense “involve[] conduct described in 18 U.S.C. [section]

670.” Id. Other provisions of section 2B1.1, on the other hand,

explicitly provide that they apply only when a defendant was con-

victed of the cited oﬀense. See id. § 2B1.1(b)(6) (enhancement ap-

plies when “the defendant was convicted of an oﬀense under 18

U.S.C. [section] 1037”); id. § 2B1.1(b)(13) (enhancement applies

when “the defendant was convicted under 42 U.S.C. [sec-

tions] 408(a), 1011(a), or 1383a(a)”). We assume “the [s]entencing

[c]ommission . . . acts intentionally when it uses particular lan-

guage in one section but omits it in another.” United States v.

Dupree, 57 F.4th 1269, 1278 (11th Cir. 2023) (en banc) (citation mod-

iﬁed). Unlike the other provisions in the fraud guideline,

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19-15168 Opinion of the Court 45

section 2B1.1(b)(8)(B) requires only that a defendant’s oﬀense in-

volve conduct described in section 670. And here, Javat’s oﬀense

did involve conduct described in section 670, so he met the ﬁrst el-

ement.

Next, he asserts that he does not meet the second element

because he was the owner of his wholesaling company, and not its

“agent.” See U.S.S.G. § 2B1.1(b)(8)(B). An agent is “someone who

is authorized to act for . . . another.” Agent, Black’s Law Dictionary

(12th ed. 2024). Javat was clearly an “agent of ” his wholesaling

company because he was “authorized to act for” the company. Id.

He admitted at his change-of-plea hearing, for example, that he

contacted the manufacturers himself and negotiated with them on

his company’s behalf.

Finally, Javat argues that he did not meet the third element

because the “supply chain” for pre-retail medical products is statu-

torily deﬁned to include vendors and their agents and not buyers

like his company. But that distinction is nowhere in section 670’s

text. Instead, section 670 explicitly provides that “the term ‘supply

chain’ includes . . . wholesaler[s].” 18 U.S.C. § 670(e)(6). Javat’s

company was a “wholesaler” that purchased goods directly from

manufacturers and resold the goods to retailers, see id., so his com-

pany was “in the supply chain for pre-retail medical product[s],”

U.S.S.G. § 2B1.1(b)(8)(B). 9

9 Soto summarily joined Javat’s challenges to any “applicable enhancements,”

but he did not make any specific argument that the district court misapplied

the pre-retail medical products enhancement to him. And it did apply to him.

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46 Opinion of the Court 19-15168

D. The Misrepresentation of Acting on Behalf of a Government

Agency Enhancement

Fourth, Javat argues that the district court erred in applying

an enhancement for misrepresenting that he was acting on behalf

of a charitable organization or government agency.

1. Background

The probation office enhanced Javat’s base offense level by

two because he misrepresented that he was acting on behalf of a

government agency. See U.S.S.G. § 2B1.1(b)(9)(A). Javat objected

that the enhancement should not apply because the manufacturers

knew that his company was a private, for-profit business. The dis-

trict court applied the enhancement over Javat’s objection, explain-

ing that Javat told the manufacturers that he was “acting on behalf

of the [United States] military and [its] Afghan reconstruction ef-

fort.”

2. Analysis

The district court did not clearly err in ﬁnding that Javat mis-

represented that he was acting on behalf of a government agency.

Section 2B1.1(b)(9)(A) provides a two-level enhancement if the

Soto, unlike Javat, was convicted under section 670, so Soto’s conduct was

certainly “conduct described in 18 U.S.C. [section] 670” for purposes of the

enhancement. U.S.S.G. § 2B1.1(b)(8)(B). And, like Javat, Soto was an “agent”

of Javat’s company, which was “in the supply chain for the pre-retail medical

product.” Id. Thus, the district court did not err in applying the enhancement

to Soto.

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19-15168 Opinion of the Court 47

defendant’s “oﬀense involved . . . a misrepresentation that the de-

fendant was acting on behalf of a charitable [or] educational . . .

organization . . . or a government agency.” See U.S.S.G.

§ 2B1.1(b)(9)(A).

When Javat pleaded guilty, he admitted that he “contacted

various [manufacturers] under the false pretense of being a large

supplier of medical, surgical and food products to the United States

military stationed abroad” and that he misrepresented that the

goods “would be distributed to, among others, the [United States]

military abroad.” At Soto’s trial, the government presented evi-

dence that Javat’s company misrepresented to manufacturers that

it supplied goods to the United States military, the Afghanistan Re-

construction and Development Services—an Afghan government

agency “funded [and] managed by” the United States military—

and the “Afghan National Army and Police Hospital.” As part of

the scheme, Javat’s company sent forged documents to the manu-

facturers purporting to show the Afghan government soliciting

bids for the manufacturers’ goods.

In Ellisor, we held that similar evidence was suﬃcient to ap-

ply this enhancement. See 522 F.3d at 1275–76. There, the evidence

showed that the defendant obtained a letter from a university using

false pretenses, forged letters on university letterhead, and claimed

the university hired him to coordinate an event. Id. That’s what

Javat did here. He forged Afghan government letters and misrep-

resented a relationship with the United States military. See id.

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48 Opinion of the Court 19-15168

Javat responds that the enhancement did not apply because

the manufacturers knew his company was a private, for-proﬁt busi-

ness. But that misses the point. Javat and his coconspirators mis-

represented that Javat’s company was working “on behalf of ” the

United States military and Afghan government. Since Javat’s of-

fense “involved . . . a misrepresentation that the defendant was act-

ing on behalf of . . . government agenc[ies],” the district court cor-

rectly applied the two-level enhancement. See U.S.S.G.

§ 2B1.1(b)(9)(A).

E. The Special Skill Enhancement

Fifth, Soto argues that the district court erred in applying the

special skill enhancement because serving as a customs broker is

not a special skill. 10

1. Background

The probation office enhanced Soto’s base offense level by

three because he used a “special skill” as a customs broker to “facil-

itate[] the commission or concealment of” his offense. U.S.S.G.

§ 3B1.3. Soto objected. He pointed to the guideline commentary,

which provided examples of occupations that required special

skills, including “pilots, lawyers, doctors, chemists[,] and demoli-

tion experts.” See id. cmt. n.4. The enhancement did not apply, he

10 We review de novo “the district court’s legal interpretation of the term ‘spe-

cial skills,’” but we review for clear error a finding that the defendant possessed

the special skill. United States v. De La Cruz Suarez, 601 F.3d 1202, 1219 (11th

Cir. 2010).

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19-15168 Opinion of the Court 49

argued, because customs brokers do not have the same special

skills as these examples. But because customs brokers had to know

the applicable regulations for clearing goods, pass a technical exam,

and be licensed by Customs, the district court applied the enhance-

ment over Soto’s objection.

2. Analysis

The district court did not err in ﬁnding that Soto exercised a

special skill as a customs broker as part of the fraud scheme. Sec-

tion 3B1.3 provides a two-level enhancement when a defendant

“used a special skill[] in a manner that signiﬁcantly facilitated the

commission or concealment of the oﬀense.” U.S.S.G § 3B1.3. A

“special skill[]” is “a skill not possessed by members of the general

public and usually requiring substantial education, training or li-

censing.” United States v. Calderon, 127 F.3d 1314, 1339 (11th Cir.

1997) (quotation omitted). In other words, a skill is special “[i]f an

‘average person oﬀ the street’ does not possess” it. De La Cruz Sua-

rez, 601 F.3d at 1219 (quoting Calderon, 127 F.3d at 1339).

Here, Soto used his skills as a customs broker to “signiﬁ-

cantly facilitate[] the commission or concealment of the oﬀense.”

U.S.S.G. § 3B1.3. His role as Javat’s customs broker was essential to

the fraud scheme, as Soto was the one who exported and reim-

ported Javat’s goods without alerting Customs or the manufactur-

ers. At his trial, for example, the evidence showed that Soto forged

Customs documents to clear Javat’s goods through the Miami Cus-

toms oﬃce and to “conceal” the fraudulent scheme from both

Customs oﬃcials and the manufacturers. See id. And his customs

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50 Opinion of the Court 19-15168

expert testiﬁed that to become a customs broker a person must be

licensed by Customs and pass an exam on Customs regulations, the

other relevant regulations for clearing cargo, the “transactional pro-

cess of clearing cargo,” and the other governing agencies that reg-

ulate particular cargo. As the district court found, this is not

knowledge possessed by the “average person oﬀ the street.” See

De La Cruz Suarez, 601 F.3d at 1219 (quoting Calderon, 127 F.3d at

1339).

Soto counters that a customs broker’s skills are not “special”

because a customs broker does not require the same degree of “ed-

ucation, training or licensure” as the examples in the guideline

commentary—“pilots, lawyers, doctors, accountants, chemists,

and demotion experts.” See id. cmt. n.4. But our focus is not on

comparing a customs broker to other skilled jobs. The “focus of

[our] inquiry is on the skills members of the public possess gener-

ally.” See Calderon, 127 F.3d at 1339. Since “the average person oﬀ

the street does not possess” a customs broker’s license and the

unique knowledge and training to receive one, the special skill en-

hancement was properly applied. See De La Cruz Suarez, 601 F.3d at

1219 (quoting Calderon, 127 F.3d at 1339); U.S.S.G. § 3B1.3. Plus, as

we explained above, it was precisely because Soto was a customs

broker that Javat needed him and sought him out.

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19-15168 Opinion of the Court 51

F. The Minor Role Reduction

Finally, in the last issue about his sentence, Soto contends

that the district court clearly erred in denying his request for a mi-

nor role reduction.11

1. Background

At the sentencing hearing, Soto argued that his base offense

level should be reduced because he played a minor role in the

scheme as there was no evidence showing he had a proprietary in-

terest or decision-making authority. The district court denied the

request.

2. Analysis

The district court did not clearly err in finding that Soto

played more than a minor role in the fraud scheme. Sec-

tion 3B1.2(b) states that the district court should reduce the defend-

ant’s base offense level by two if it finds that the defendant “was a

minor participant in any criminal activity.” See U.S.S.G. § 3B1.2(b).

“Two principles . . . guide . . . whether a defendant played a minor

role in the criminal scheme: (1) the defendant’s role in the relevant

conduct[;] . . . and (2) his role as compared to that of other partici-

pants in his relevant conduct.” United States v. Cabezas-Montano,

949 F.3d 567, 606 (11th Cir. 2020) (citation modified). But “even if

a defendant played a lesser role than the other participants, that fact

11 A defendant’s role in the offense is a finding of fact we review for clear error.

United States v. De Varon, 175 F.3d 930, 937–38 (11th Cir. 1999) (en banc).

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52 Opinion of the Court 19-15168

does not entitle [him] to a role reduction since it is possible that

none are minor or minimal participants.” United States v. Martin,

803 F.3d 581, 591 (11th Cir. 2015) (citation modified). “The defend-

ant bears the burden of establishing, by a preponderance of the ev-

idence, his minor role in the offense.” Cabezas-Montano, 949 F.3d

at 606 n.38.

Applying the two principles here, Soto did not play “a mi-

nor” role in the “criminal activity.” See U.S.S.G. § 3B1.2(b). As to

his role in the relevant conduct, Soto exported and reimported Ja-

vat’s goods, forged Customs forms and shipping documents to con-

ceal the scheme, advised coconspirators how to keep concealing

the goods’ final destination from the manufacturers, and eventu-

ally cleared the goods through Customs so that Javat could sell

them at a massive profit in the United States.

As to Soto’s role compared to others in his relevant conduct,

Soto was “the primary, if not exclusive,” customs broker and was

Javat’s trusted “logistics partner[]” who was consulted frequently

on how to avoid alerting manufacturers that the goods were being

reimported. His role in the relevant conduct was vital, even “com-

pared to that of other” coconspirators in Javat’s scheme. Cabe-

zas-Montano, 949 F.3d at 606.

Soto responds that his role was minor because he did not

make any misrepresentations to the manufacturers. But whether

he personally lied to the manufacturers is irrelevant. Soto was es-

sential to facilitating Javat’s misrepresentations to the manufactur-

ers. He was responsible for organizing the export and reimport of

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19-15168 Opinion of the Court 53

the goods and furthered the scheme by falsifying shipping docu-

mentation and Customs forms. And Soto knew that Javat would

show the falsified documentation that Soto created to the manu-

facturers. After all, that was the point. All of this conduct was crit-

ical in fooling the manufacturers into believing that the goods were

actually being exported.

Soto also contends that he played a minor role in the scheme

because he did not have a proprietary interest in the criminal activ-

ity or decision-making authority. But that’s not correct. Soto was

paid a premium—double the usual rate for a customs broker—to

deceive the manufacturers. And he had decision-making authority

over how to export and reimport the goods so they could get by

Customs.

III. Restitution

Javat raises three challenges to the district court’s restitution

orders. He argues that: (1) the district court erred when it allowed

the government to present its own evidence on the amount of res-

titution owed, in violation of 18 U.S.C. section 3664, and that deny-

ing his request for a continuance compounded the error; (2) the

district court erred in quashing his subpoenas; and (3) the district

court erred in its finding that he owed around $29 million in resti-

tution to the manufacturers. Soto joins these arguments. We find

no error.

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54 Opinion of the Court 19-15168

A. The Section 3664 Objection

Javat and Soto argue that the district court violated 18 U.S.C.

section 3664 because it allowed the government, rather than the

probation oﬃce, to present evidence at the restitution hearings.12

1. Background

The district court ordered the probation office to include

restitution in Javat’s and Soto’s presentence reports. When the

probation office prepared the reports, it didn’t have complete res-

titution information, so the district court set the restitution hearing

for a date after the sentencing hearing. Separate from the proba-

tion office, the government collected information and restitution

requests from the manufacturers.

A week before the restitution hearing, the government filed

a notice that it would seek restitution for nine manufacturers:

Bayer, Parkell, Sklar, Andover, DeMet’s Candy, Pascal, Galderma,

Gojo, and Steris. A day before the hearing, the government filed

amended notices identifying five more manufacturers: Convatec,

Kraft, Purdue, Bard, and Surgical Specialties. Javat moved to con-

tinue the hearing, arguing that the government had only provided

12 We review de novo the legality of a restitution order and review for clear

error any factual findings supporting the order. United States v. Edwards, 728

F.3d 1286, 1291 (11th Cir. 2013). We review for abuse of discretion a district

court’s denial of a motion for continuance. United States v. Valladares, 544 F.3d

1257, 1261 (11th Cir. 2008).

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19-15168 Opinion of the Court 55

him notice that it would seek restitution on behalf of Andover,

Parkell, Bayer, DeMet’s Candy, and Galderma.

The district court partly granted the motion. It granted the

motion as to five manufacturers—Gojo, Convatec, Kraft, Surgical

Specialties, and Bard—because Javat did not have sufficient infor-

mation or notice to address their requests. The district court de-

ferred ruling on those five manufacturers and scheduled a second

restitution hearing. But the district court denied the motion as to

nine manufacturers—Andover, Galderma, Bayer, Parkell, Sklar,

DeMet’s Candy, Pascal, Steris, and Purdue—and held a restitution

hearing on those manufacturers’ requests because Javat had ade-

quate notice of their claims.

At the first restitution hearing, the probation office had not

yet completed its separate restitution report for Javat, so the gov-

ernment requested permission to present its own restitution evi-

dence. Javat objected, arguing the government could provide res-

titution evidence to the probation office, but could not present ev-

idence during a restitution hearing. The district court overruled

Javat’s objection and allowed the government to present evidence

about the nine manufacturers’ requests for restitution.

At the second hearing, the district court considered the other

five manufacturers’ requests—plus the request of one additional

company, Campbell—based on the probation office’s completed

investigation and restitution memorandum. The government also

sought to present its own evidence on the requests, and Javat ob-

jected again. The district court heard the government’s evidence

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56 Opinion of the Court 19-15168

over Javat’s objection and said it would consider both the proba-

tion office’s memorandum and the government’s evidence.

2. Analysis

The district court did not err because section 3664 did not

prevent the government from presenting evidence at the restitu-

tion hearings. Section 3663A “requires the district court to award

restitution to identifiable victims of certain crimes, including

crimes of fraud.” Martin, 803 F.3d at 593 (citing 18 U.S.C.

§ 3663A(a)(1)). Restitution orders “shall be issued and enforced in

accordance with section 3664.” 18 U.S.C. § 3663A(d). Section 3664

provides that the district court “shall order the probation officer to

obtain and include in its presentence report, or in a separate report,

as the court may direct, information sufficient for the court to ex-

ercise its discretion in fashioning a restitution order.” Id. § 3664(a).

If the defendant disputes the amount owed to a victim, the govern-

ment bears the burden of proving the victim’s loss by a preponder-

ance of the evidence. See id. § 3664(e).

Here, the district court satisﬁed section 3664. It ordered the

probation oﬃce to prepare a “presentence report.” Id. § 3664(a).

And the probation oﬃce followed the district court’s order by pre-

paring a “separate report” on restitution. Id.

Javat and Soto disagree, arguing that the district court vio-

lated section 3664 because it allowed the government, rather than

the probation oﬃce, to present evidence at the restitution hearings.

But nothing in section 3664 precludes the government from pre-

senting its own evidence in support of restitution. See id. § 3664.

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19-15168 Opinion of the Court 57

Restitution is mandatory, see id. § 3663A(a), and the government

bears the burden of proving a victim suﬀered a loss, see id.

§ 3664(e); see also United States v. Williams, 612 F.3d 500, 513 (6th Cir.

2010) (noting that “the government . . . ha[s] a mandatory obliga-

tion under the [Mandatory Victims Restitution Act] to seek the

full . . . amount of the . . . victims’ losses as restitution”). So the

district court did not violate section 3664 by allowing the govern-

ment to carry its burden by presenting evidence.

Javat and Soto also assert that the district court erred in

denying them a continuance to address the manufacturers’ restitu-

tion claims. But to reverse based on a denial of a continuance mo-

tion, they need to “show that the denial of the motion for continu-

ance was an abuse of discretion which resulted in speciﬁc substan-

tial prejudice.” United States v. Jeri, 869 F.3d 1247, 1257 (11th Cir.

2017) (quoting United States v. Verderame, 51 F.3d 249, 251 (11th Cir.

1995)). And to establish speciﬁc substantial prejudice, they had to

“identify relevant, non-cumulative evidence that would have been

presented if [the] request for a continuance had been granted.” Id.

(quoting United States v. Saget, 991 F.2d 702, 708 (11th Cir. 1993)).

Javat and Soto failed to do so here.

The district court’s denial of the continuance motion did not

prejudice Javat or Soto because they had suﬃcient notice and infor-

mation to assess the restitution requests of the nine manufacturers

for which the district court denied the continuance. The govern-

ment presented evidence relating to Andover, Bayer, Sklar, DeMet’s

Candy, and Parkell at Soto’s trial and Javat was aware the

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58 Opinion of the Court 19-15168

government would be seeking restitution for those manufacturers.

In his motion for a continuance, Javat conceded he knew that Gal-

derma requested restitution. He also received evidence related to

Pascal’s, Steris’s, and Purdue’s restitution requests a week before

the restitution hearing. And Javat and Soto have not identiﬁed any

noncumulative evidence they would have presented had the district

court granted the continuance motion. See id.

B. The Motion to Quash Javat’s Subpoenas

Next, as to restitution, Javat and Soto argue the district court

abused its discretion in quashing the subpoenas Javat served on the

manufacturers before the second restitution hearing.13

1. Background

Between the two restitution hearings—about two months

before the second hearing—the government provided Javat with

the documents it intended to use as evidence to support the addi-

tional manufacturers’ restitution requests. Nearly a month and a

half later, just under two weeks before the second hearing, Javat

served two subpoenas each on the six remaining manufacturers for

a total of twelve subpoenas. These subpoenas requested the man-

ufacturers to produce numerous documents about other transac-

tions they had with other distributors and to produce a witness to

give live testimony about how each manufacturer calculated its

13 We review for abuse of discretion a district court’s ruling on a motion to

quash a subpoena. Jordan v. Comm’r, Miss. Dep’t of Corr., 947 F.3d 1322, 1326

(11th Cir. 2020).

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19-15168 Opinion of the Court 59

restitution request. The government moved to quash the subpoe-

nas. The district court granted the motion because compliance

with the subpoenas would be unreasonable when Javat served

them less than two weeks before the hearing despite having “ample

opportunity” to serve the subpoenas after receiving the govern-

ment’s documents related to the relevant manufacturers.

2. Analysis

Federal Rule of Criminal Procedure 17 grants district courts

discretion to quash a subpoena when “compliance would be unrea-

sonable or oppressive,” Fed. R. Crim. P. 17(c)(2), including when

the subpoena is untimely and there is little time for the subject to

comply, see Perez-Tosta, 36 F.3d at 1556 n.2 (stating that timeliness is

a factor when determining whether to issue a subpoena under

rule 17); United States v. Muho, 978 F.3d 1212, 1219 (11th Cir. 2020)

(“The appellate courts have upheld the refusal of district courts to

issue a [r]ule 17(b) subpoena where the request was un-

timely . . . .”).

Here, Javat served six manufacturers with two subpoenas

each just two weeks before the second restitution hearing. The

subpoenas asked for a trove of documents about earlier transac-

tions and for live testimony from witnesses. Given the breadth of

the request and the lack of time to comply, the district court did

not abuse its discretion by quashing the subpoenas. See Fed. R.

Crim. P. 17(c)(2); cf. Perez-Tosta, 36 F.3d at 1556 n.2; Muho, 978 F.3d

at 1219.

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60 Opinion of the Court 19-15168

C. The Restitution Amount

Finally, as to restitution, Javat and Soto argue that the district

court erred by incorrectly calculating the restitution amount based

on lost proﬁts. 14

1. Background

After the two restitution hearings, the district court con-

cluded that the government’s evidence and the probation office’s

restitution report were sufficiently reliable to award restitution to

the fifteen manufacturers—Andover, Bayer, DeMet’s Candy,

Parkell, Sklar, Bard, Campbell, Convatec, Kraft, Galderma, Gojo,

Pascal, Purdue, Steris, and Surgical Specialties. The district court

found that there was sufficient evidence—including sworn state-

ments, invoices, spreadsheets, and other business records—to

show that each manufacturer lost profits from the scheme because

they would have sold the goods at full retail prices absent the mis-

representations about the goods’ destination and that each manu-

facturer’s loss calculation was reliable. Based on this evidence, the

district court ordered that Javat and Soto were jointly and severally

liable for $29,021,243.29 in restitution to the fifteen manufacturers.

14 We review “for clear error a factual finding regarding the specific amount

of restitution.” United States v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010) (citing

United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007)).

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19-15168 Opinion of the Court 61

2. Analysis

Once a defendant has been convicted of an oﬀense “in which

an identiﬁable victim . . . has suﬀered a . . . pecuniary loss,” the dis-

trict court must grant the victim restitution. See 18 U.S.C.

§ 3663A(a), (c)(1)(B); United States v. Goldman, 953 F.3d 1213, 1223

(11th Cir. 2020). A “victim” includes any person who has “suﬀered

a harm that directly and proximately results from the” defendant’s

oﬀense. United States v. Robertson, 493 F.3d 1322, 1334 (11th Cir.

2007) (citation modiﬁed).

Calculating restitution is “largely the same” as calculating

loss under the sentencing guidelines, United States v. Cavallo, 790

F.3d 1202, 1239 (11th Cir. 2015), because the district court can ap-

proximate the amount of restitution owed, see United States v.

Futrell, 209 F.3d 1286, 1291–92 (11th Cir. 2000). Evidence used to

estimate a restitution award “need not be sworn; it merely must

bear suﬃcient indicia of reliability to support its probable accu-

racy.” United States v. Gatlin, 90 F.4th 1050, 1075 (11th Cir. 2024)

(citation modiﬁed).

Here, there was reliable evidence—including trial testimony,

sworn statements, invoices, spreadsheets, and other business rec-

ords—showing that the ﬁfteen manufacturers collectively lost

$29,021,243.29 in proﬁts by giving Javat’s company discounts based

on the fraudulent misrepresentations about the goods’ destination.

Thus, the district court did not err in ordering Javat to pay the ﬁf-

teen manufacturers $29,021,243.29 in restitution.

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62 Opinion of the Court 19-15168

As with the loss amount, Javat and Soto argue that using

fraudulently obtained discounts is not a permissible way to calcu-

late restitution. But section 3663A required Javat to pay the manu-

facturers restitution for those pecuniary losses that “proximately

result[ed] from” his oﬀenses. See Robertson, 493 F.3d at 1334; see also

18 U.S.C. § 3663A. Here, the evidence presented at the two restitu-

tion hearings showed that ﬁfteen manufacturers lost $29,021,243.29

as a “proximate[] result[]” of Javat’s fraudulent misrepresentations.

See Robertson, 493 F.3d at 1334.

Javat and Soto also contend that no evidence showed that

the manufacturers’ goods would have sold at their full retail price

and, thus, there was insuﬃcient evidence that the manufacturers

lost $29,021,243.29 in proﬁts. But the district court was allowed to

approximate the restitution amount. See Futrell, 209 F.3d at 1291–

92. And the evidence showed that the manufacturers would not

have discounted their retail prices absent Javat’s fraud. So, using

the diﬀerence between the retail price and the amount Javat paid

for the goods was a reasonable way to approximate the restitution

in this case. See id.

IV. Forfeiture

Javat raises four issues to challenge the district court’s forfei-

ture orders: (1) forfeiture was improper because Javat’s indictment

cited the wrong forfeiture provision; (2) the district court violated

the requirements of Federal Rule of Criminal Procedure 32.2 by

not adequately incorporating its forfeiture orders into the judg-

ment; (3) the government did not adequately trace the proceeds of

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19-15168 Opinion of the Court 63

the fraud; and (4) a money judgment was improper. Calh and

Pennco also appeal the district court’s forfeiture of Javat’s substi-

tute property and the district court’s dismissal of their petitions for

lack of standing. We take each argument in turn. 15

A. The Indictment’s Incorrect Citation

First, as to forfeiture, Javat argues that rule 32.2(a) required

the government to cite the correct forfeiture statute in the indict-

ment. Because the government failed to do so here, he contends,

the district court erred in ordering forfeiture.

1. Background

Both Javat’s original indictment and the superseding indict-

ment alleged that, “[u]pon conviction,” Javat was required to for-

feit “all property constituting, or derived from, proceeds obtained

directly or indirectly, as the result of such violation” under 18

U.S.C. section 982(a)(2)(A). Javat moved to dismiss the supersed-

ing indictment, arguing that the forfeiture allegation was defective

because it cited section 982(a)(2)(A), which applies to proceeds

from violations affecting a financial institution. See 18 U.S.C.

§ 982(a)(2)(A). In response, the government acknowledged the

scrivener’s error and explained that the indictment should have

15 In reviewing forfeiture orders, we review de novo the district court’s legal

conclusions and review for clear error its findings of fact. United States v.

Waked Hatum, 969 F.3d 1156, 1161–62 (11th Cir. 2020).

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64 Opinion of the Court 19-15168

cited section 981(a)(1)(C), which applies to proceeds from wire

fraud. See id. § 981(a)(1)(C).

The district court denied the motion. It explained that the

indictments and the government’s acknowledgment of the error

gave Javat sufficient notice that the proceeds from his fraud would

be forfeited and that Javat was not “prejudiced by the incorrect stat-

utory reference.” Javat then pleaded guilty to conspiracy to com-

mit wire fraud.

After Soto’s trial, the government moved for forfeiture un-

der section 981(a)(1)(C). Javat objected, arguing that rule 32.2(a)

required the indictment to cite the correct forfeiture statute. Be-

cause the superseding indictment cited the wrong statute, Javat ar-

gued that the district court could not order forfeiture. He also op-

posed forfeiture under section 981(a)(1)(C) on the merits.

The district court overruled the procedural objection for the

same reasons it denied the motion to dismiss: the indictments and

the government’s acknowledgment of error gave Javat sufficient

notice of forfeiture and the error did not prejudice Javat. It deferred

ruling on Javat’s merits objections until after a forfeiture hearing

could be held.

2. Analysis

Rule 32.2(a) provides that “[a] court must not enter a judg-

ment of forfeiture in a criminal proceeding unless the indict-

ment . . . contains notice to the defendant that the government will

seek the forfeiture of property as part of any sentence in

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19-15168 Opinion of the Court 65

accordance with the applicable statute.” Fed. R. Crim. P. 32.2(a).

The applicable forfeiture statute was section 981(a)(1)(C), which

provides for forfeiture of “[a]ny property, real or personal, which

constitutes or is derived from proceeds traceable to . . . any oﬀense

constituting ‘speciﬁed unlawful activity’ (as deﬁned in [18 U.S.C.

section 1956(c)(7)]).” 18 U.S.C. § 981(a)(1)(C). Section 1956(c)(7)’s

deﬁnition of “speciﬁed unlawful activity” includes wire fraud. See

id. § 1957(c)(7) (deﬁning “speciﬁed unlawful activity” as including

“any act or activity constituting an oﬀense listed in sec-

tion 1961(1)”); id. § 1961(1) (listing wire fraud as a qualifying of-

fense).

Assuming without deciding that rule 32.2(a) did require an

exact citation, the government’s error was harmless. Under

rule 52(a), “[a]ny error, defect, irregularity, or variance that does

not aﬀect substantial rights must be disregarded” as harmless. Fed.

R. Crim. P. 52(a). And here, Javat received notice that the govern-

ment would seek forfeiture under section 981(a)(1)(C) well before

he pleaded guilty because the government noted the incorrect cita-

tion in its response to Javat’s motion to dismiss. The government

also moved for forfeiture under the correct provision, and Javat had

the opportunity to, and did, oppose that motion on the merits.

Thus, the incorrect citation did not “aﬀect” Javat’s “substantial

rights.” Id.; see also United States v. Farias, 836 F.3d 1315, 1330 (11th

Cir. 2016) (holding that a district court’s failure to comply with

rule 32.2 was harmless where the defendant received notice the

government would seek forfeiture and had the opportunity to con-

test forfeiture); cf. Fed. R. Crim. P. 7(c)(2) (providing that “neither

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66 Opinion of the Court 19-15168

an error in a citation nor a citation’s omission is a ground to dismiss

the indictment or information or to reverse a conviction” unless

“the defendant was misled and thereby prejudiced”).

In response, Javat cites United States v. Annabi, 746 F.3d 83 (2d

Cir. 2014). There, the government cited the wrong forfeiture stat-

ute in the defendant’s indictment and never invoked the correct for-

feiture statute before sentencing. See id. at 85–86. The Second Cir-

cuit held that “where the [g]overnment fails to invoke an applicable

forfeiture [statute] in the indictment, and fails to correct that error

prior to entry of a ﬁnal judgment, forfeiture must be limited to that

authorized by the statute cited as the basis for forfeiture, and of

which the defendant had notice.” Id. at 86. But here, unlike in An-

nabi, the government invoked the correct forfeiture statute before

sentencing and Javat had ample notice that the government in-

tended to pursue forfeiture under section 981(a)(1)(C). So any er-

ror was harmless.

B. The Incorporation of Forfeiture Orders into Javat’s Criminal

Judgment

Second, Javat argues that the district court violated

rule 32.2(b)(4)(B) by not adequately incorporating its forfeiture or-

ders into his criminal judgment.

1. Background

Javat’s initial criminal judgment ordered “[f]orfeiture of the

defendant’s right, title and interest in certain property” and di-

rected “[t]he [g]overment [to] file a preliminary order of forfeiture

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19-15168 Opinion of the Court 67

within [three] days.” After receiving evidence and hearing argu-

ment on forfeiture at Javat’s sentencing hearing, the district court

again informed Javat that it was “order[ing] forfeiture.” It then en-

tered a preliminary order of forfeiture against him and ordered him

to forfeit $26,272,279.45 as proceeds of the fraud. The district court

issued a first amended criminal judgment that again ordered

“[f]orfeiture of the defendant’s right, title and interest in certain

property” and that “[t]he [g]overnment shall file a preliminary or-

der of forfeiture within [three] days.” Javat’s final criminal judg-

ment contained the same forfeiture language.

2. Analysis

Rule 32(b)(4)(B) provides that the district court “must . . . in-

clude the forfeiture order, directly or by reference, in the judg-

ment.” Fed. R. Crim. P. 32.2(b)(4)(B). “[B]ut the court’s failure to

do so may be corrected at any time under [r]ule 36.” Id. That is,

“[a]fter giving any notice it considers appropriate, the court may at

any time correct a clerical error in a judgment, order, or other part

of the record, or correct an error in the record arising from over-

sight or omission.” Fed. R. Crim. P. 36.

Here, the district court’s judgment complied with

rule 32.2(b)(4)(B). The judgment ordered Javat to forfeit his “right,

title and interest in certain property.” And by directing the govern-

ment to ﬁle the preliminary forfeiture order, the judgment incor-

porated the preliminary forfeiture order by reference.

Still, even if this incorporation wasn’t enough, rule 32.2 con-

ﬁrms that any failure to include the forfeiture order in the

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68 Opinion of the Court 19-15168

judgment “may be corrected at any time under [r]ule 36.” Fed. R.

Crim. P. 32.2(b)(4)(B). Out of an abundance of caution, that’s what

we’ll order the district court to do. We’ll remand this case to the

district court to amend Javat’s judgment to either speciﬁcally in-

clude the forfeited property or to explicitly reference the prelimi-

nary order of forfeiture. See, e.g., United States v. Dahda, 852 F.3d

1282, 1298 (10th Cir. 2017) (“In sum, the failure to state the forfei-

ture amount in the judgment does not warrant vacatur of the for-

feiture. But we call the oversight to the attention of the district

court so that it may correct the judgment.”).

Javat argues that our decision in United States v. Pease, 331

F.3d 809 (11th Cir. 2003), does not allow the judgment to be cor-

rected, but his reliance on Pease is misplaced. In that case, we said,

“the district court [had an] obligation to include an order of forfei-

ture in its judgment if forfeiture to the United States is to come to

fruition” and that the failure to include an order of forfeiture in a

criminal judgment was not a clerical mistake correctable through

rule 36. Id. at 813, 816. But Pease relied on the predecessor to

rule 32.2, and rule 32.2 now clariﬁes that any omission is a correcti-

ble clerical mistake under rule 36. See id. at 810 n.1; see also Fed. R.

Crim. P. 32.2(b)(4)(B).

C. The Proceeds’ Traceability

Third, Javat argues that the district court erred in ordering

him to forfeit $26,272,279.45 because some of the proceeds cap-

tured in that amount were traceable to James Sipprell, one of

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19-15168 Opinion of the Court 69

Javat’s coconspirators, and International Medical Distributors, Inc.,

which Sipprell owned.

1. Background

The district court held a forfeiture hearing and considered

whether the entire proceeds of the fraudulent scheme could be

traced to Javat. At the hearing, Javat argued that the proceeds

could not be traced entirely to him because the evidence showed

that Sipprell operated International Medical Distributors, which

obtained at least some of the proceeds. The government re-

sponded with evidence that Javat controlled Sipprell and Interna-

tional Medical Distributors. Based on this evidence, the district

court agreed with the government that Javat controlled Sipprell

and International Medical Distributors, and was, thus, jointly re-

sponsible for the proceeds those companies received.

After the hearing, the district court entered an order in

which it confirmed that Javat’s “net income from the diversion

scheme during the wire fraud conspiracy period[] was

$26,272,279.45” and that this amount was “traceable to [Javat’s] of-

fense.” The district court came to this amount using the account-

ing records from Soto’s trial, which it also used to calculate the loss

amount.

2. Analysis

The district court did not err in calculating the forfeiture

amount because the evidence showed that the proceeds of the

scheme were traceable to Javat. Section 981(a)(1)(C) requires

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70 Opinion of the Court 19-15168

forfeiture of “[a]ny property, real or personal, which constitutes or

is derived from proceeds traceable to” a conspiracy to commit wire

fraud. 18 U.S.C. § 981(a)(1)(C); id. § 1957(c)(7); id. § 1961(1). “In

cases involving lawful goods . . . that are sold . . . in an illegal man-

ner, the term ‘proceeds’ means the amount of money acquired

through the illegal transactions resulting in the forfeiture . . . .” Id.

§ 981(a)(2)(B).

In Honeycutt, v. United States, 581 U.S. 443 (2017), the Su-

preme Court reviewed a forfeiture order based on a diﬀerent stat-

ute, 21 U.S.C. section 853, which order required the defendant to

forfeit property that was acquired solely by his coconspirator. The

Court held that the order was unlawful because “the language and

structure of 21 U.S.C. [section] 853 . . . limited forfeiture to ‘prop-

erty the defendant himself actually acquired as a result of the

crime.’” United States v. Goldstein, 989 F.3d 1178, 1203 (11th

Cir. 2021) (quoting Honeycutt, 581 U.S. at 454). Accordingly, “when

a court orders forfeiture under [section] 853, it may not hold a de-

fendant ‘jointly and severally liable for property that his coconspira-

tor derived from the crime but that the defendant himself did not

acquire.’” Id. (quoting Honeycutt, 581 U.S. at 445).

Afterward, in Goldstein, we reviewed a district court’s forfei-

ture order under section 981(a)(1)(C). Id. at 1202–04. There, the

district court ordered a defendant to forfeit property acquired

jointly with a coconspirator. Id. The defendant argued that the

order violated Honeycutt, but we rejected that argument. Id. We

ﬁrst “expressed doubt that [Honeycutt] equally applie[d] to 18 U.S.C.

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19-15168 Opinion of the Court 71

[section] 981(a)(1)(C).” See id. at 1203 n.8. And even if it did, we

said the district court’s forfeiture order was lawful under Honeycutt

because the property forfeited was “jointly acquired,” unlike the

property in Honeycutt which was acquired by a coconspirator

“alone.” Id. at 1203. In other words, we concluded that Honeycutt

only bars forfeiture of property that a coconspirator acquires

“alone,” not “jointly acquired” property. Id.

We reach the same conclusion here. Assuming Honeycutt ap-

plies to section 981(a)(1)(C), the district court’s $26,272,279.45 for-

feiture order was lawful because the proceeds traceable to Sipprell

and International Medical Distributors were “jointly acquired” by

Javat. See id. at 1203, 1203 n.8. The evidence from the forfeiture

proceedings showed that Javat employed Sipprell and controlled In-

ternational Medical Distributors. For example, the indictment al-

leged that Javat was the chairman of the wholesaling company,

Uniworld Group, and International Medical Distributors was Uni-

world’s United States aﬃliate.

At Javat’s sentencing hearing, the government presented an

email in which Javat described Sipprell as “the [p]resident of [Ja-

vat’s] company in” the United States. It also presented an organi-

zational chart that identiﬁed Javat as the “[c]hairman” of Uniworld

at the peak of the chart, with Sipprell under him. Another docu-

ment listed International Medical Distributors as an “Associate

Compan[y]” under “Uniworld[’s] Group of Companies.” And an-

other one identiﬁed that Uniworld owned the Georgia warehouse

where International Medical Distributors operated.

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72 Opinion of the Court 19-15168

Finally, at the forfeiture hearing, the government presented

an email in which Javat made “very clear” that Sipprell was “hold-

ing . . . companies under trust for” Javat and that Sipprell “work[ed]

for Uniworld, and [Javat paid him] a salary.” In another email, Javat

told Sipprell to “[s]top . . . annoying” him because he “pa[id Sip-

prell’s] salary.” And in a third email, Javat wrote Sipprell: “When I

tell you to do something, . . . just do it.” Based on this evidence,

the district court did not clearly err in determining that the forfei-

ture amount was traceable to Javat. 16

D. Javat’s Money Judgment

Fourth, Javat argues that his money judgment for the forfei-

ture amount violated rule 32.2(a) because the superseding indict-

ment failed to provide him notice that the government would seek

a money judgment.

1. Background

Before the district court entered its forfeiture order, the gov-

ernment moved for a money judgment against Javat for the forfei-

ture amount. Javat objected on two grounds. First, he argued that

granting the government a money judgment would violate

16 Javat also argues, for the first time in his reply brief, that the district court

erred in relying on the accounting records to calculate the forfeiture amount.

This argument is forfeited. See United States v. Evans, 473 F.3d 1115, 1120 (11th

Cir. 2006) (“Arguments raised for the first time in a reply brief are not properly

before a reviewing court.” (citation modified)). Even if it were not, the argu-

ment fails because the internal accounting records were sufficiently reliable to

make a finding on the forfeiture amount.

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19-15168 Opinion of the Court 73

rule 32.2 because neither the original nor the superseding indict-

ment gave him notice that the government would seek a money

judgment. Second, he contended that money judgments were not

statutorily authorized and were therefore invalid. The district

court overruled his objections, and, as part of its forfeiture order,

entered a money judgment against Javat for $26,272,279.45—the

same amount as the forfeiture order.

2. Analysis

Rule 32.2(a) requires the government to provide notice in

the indictment that it will seek forfeiture. See Fed. R. Crim

P. 32.2(a). But it explicitly provides that “[t]he indictment or infor-

mation need not identify the property subject to forfeiture or spec-

ify the amount of any forfeiture money judgment that the govern-

ment seeks.” Id. Nothing in rule 32.2(a) requires the government

to allege it will seek a money judgment. See United States v. Lo, 839

F.3d 777, 791 (9th Cir. 2016) (“The government is not legally re-

quired to notify a defendant that it is seeking a money judg-

ment . . . .”).

Even so, Javat asserts that the district court’s money judg-

ment was invalid because money judgments are not statutorily au-

thorized in criminal cases. But we have repeatedly said that money

judgments are statutorily authorized. See Waked Hatum, 969 F.3d

at 1163–64; see also Farias, 836 F.3d at 1331 (noting that “[s]ec-

tion 981(a)(1)(C) authorized a forfeiture money judgment”). We

say so again here.

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74 Opinion of the Court 19-15168

Second, Javat contends that the district court’s money judg-

ment violated rule 32.2(b)(4)(B) because the final criminal judg-

ment did not reference the money judgment. But that rule only

requires that the criminal judgment incorporate “the forfeiture or-

der, directly or by reference,” not the money judgment. See Fed.

R. Crim. P. 32.2(b)(4)(B). Even if more was required, the issue can

be corrected by amending the judgment on remand. See id.; see also

Fed. R. Crim. P. 36. Since we are already remanding the case to

the district court to amend its judgment to incorporate the forfei-

ture order, we will also direct it to incorporate the money judg-

ment out of an abundance of caution.

E. Calh And Pennco’s Challenge

Finally, Calh and Pennco appeal the district court’s ﬁnal for-

feiture order and the dismissal of their petitions to contest the for-

feiture in ancillary proceedings for lack of standing.17

1. Background

After the district court entered the forfeiture order and

money judgment, the government moved for an order forfeiting

substitute property to satisfy the money judgment. Specifically,

the government sought substitute forfeiture of the Georgia ware-

house and the Washington condominium. Javat had already said

17 “We review de novo questions about our subject matter jurisdiction, includ-

ing standing.” United States v. Cone, 627 F.3d 1356, 1358 (11th Cir. 2010) (cita-

tion modified).

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19-15168 Opinion of the Court 75

at his bond hearing that he had an interest in these properties and

offered them as collateral for his bond. Javat opposed the motion.

Then, Calh and Pennco moved to intervene to oppose the

substitute asset forfeiture because Calh held legal title to the ware-

house and Pennco held legal title to the condominium. The district

court concluded that the bond-hearing evidence was enough to es-

tablish that Javat “potentially” had an interest in the properties,

granted the government’s motion for a preliminary order forfeiting

Javat’s interest in the substitute properties, and denied Calh and

Pennco’s joint motion to intervene after finding that ancillary pro-

ceedings were the correct vehicle for them to assert their interests

in the properties. It entered a preliminary order of forfeiture as to

the two properties.

Javat, Calh, and Pennco appealed the orders forfeiting Ja-

vat’s interest in the property and denying Calh and Pennco’s mo-

tion to intervene. See United States v. Javat, No. 20-13310, 2022 WL

703940, at *1 (11th Cir. Mar. 9, 2022). Javat argued that the district

court lacked jurisdiction to order forfeiture in the properties be-

cause the order only said he “potentially” had an interest in them,

not that he actually held an interest in them. Id. at *4. He also

argued that the district court lacked jurisdiction over the properties

because they were located outside Florida. Id. at *5. Calh and

Pennco argued that the district court violated their due process

rights by denying their motion to intervene. Id. at *2.

We rejected their arguments. Id. at *2–5. As to Javat, we

explained that the district court’s finding that Javat held a potential

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76 Opinion of the Court 19-15168

interest in the properties was sufficient and that the district court

had jurisdiction over the out-of-state properties under 18 U.S.C.

section 853(l). Id. at *5. As to Calh and Pennco, we concluded that

the district court did not violate their due process rights because

the preliminary forfeiture order did not affect their property inter-

ests and that they had the right to file petitions in ancillary proceed-

ings before the properties were finally forfeited. Id. at *3.

That’s what Calh and Pennco did. They filed petitions to

contest the forfeiture in ancillary proceedings. At a hearing on the

petitions, the government presented evidence that Javat controlled

Calh and Pennco and the companies acted as straw owners on Ja-

vat’s behalf.

Based on this evidence, the district court concluded that

Calh and Pennco were straw owners that held the properties for

Javat. Because straw owners who merely hold legal title on an-

other’s behalf lack standing to file ancillary petitions challenging

the forfeiture, the district court dismissed the petitions for lack of

jurisdiction. After resolving the petitions, the district court entered

a final forfeiture order.

2. Analysis

The district did not err by dismissing Calh’s and Pennco’s

petitions because it correctly concluded that they lacked standing

to challenge the properties’ forfeiture. Article III limits the jurisdic-

tion of the federal courts to “[c]ases” and “[c]ontroversies.” U.S.

Const. Art. III., § 2, cl. 1. A party’s standing to challenge an action

“go[es] to the heart of the Article III case or controversy

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19-15168 Opinion of the Court 77

requirement.” Christian Coal. of Fla., Inc. v. United States, 662 F.3d

1182, 1189 (11th Cir. 2011) (quotation omitted). Standing, thus, “is

a threshold matter required for a claim to be considered by the fed-

eral courts.” Via Mat Int’l S. Am. Ltd. v. United States, 446 F.3d 1258,

1262 (11th Cir. 2006) (citing Warth v. Seldin, 422 U.S. 490, 498

(1975)).

Standing requires “(1) an actual (or imminent), concrete,

and particularized injury in fact (2) that is fairly traceable to the de-

fendant’s challenged action and (3) that is likely redressable by a

favorable decision.” In re Breland, 989 F.3d 919, 922 (11th Cir. 2021)

(citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.

167, 180–81 (2000)). When property has been seized, evidence that

the petitioner owns the property provides some direct evidence to

meet the first element. See Via Mat, 446 F.3d at 1262. But standing

ultimately relies on “the existence of an injury, not ownership.” Id.

So evidence of ownership alone is not dispositive because “‘straw

owners’ and persons who might have unknowingly been in posses-

sion of property that is seized do not necessarily suffer an injury

that is sufficient to demonstrate standing.” Id. at 1262 n.5 (citing

United States v. Cambio Exacto, 166 F.3d 522, 527–28 (2d Cir. 1999)).

Indeed, we’ve explained that “possession of bare legal title

by one who does not exercise dominion and control over the prop-

erty is insufficient . . . to establish standing to challenge a forfei-

ture.” United States v. 900 Rio Vista Blvd., 803 F.2d 625, 630 (11th

Cir. 1986). When determining whether a title owner has suffered

an Article III injury from the seizure of property, district courts

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78 Opinion of the Court 19-15168

must “look behind the formal title to determine whether the record

title owner is a ‘strawman’ set up to conceal the financial affairs or

illegal dealings of someone else.” Id. (citation modified).

Here, the district court’s finding that Calh and Pennco were

straw owners who “possess[ed] . . . bare legal title,” id., to the prop-

erties was supported by the evidence. As to Calh, the government

presented evidence showing that Javat wholly owned it in 2008

when the company bought the warehouse. Eventually, in 2018,

Javat formed Calh Trust and told the trustee to “take into account

[his] expressed wishes regarding the administration of the trust”

and operate the trust “for [his] benefit” during his lifetime. Later

that year, Javat transferred his Calh shares to the Calh Trust.

As to Pennco, the government presented evidence that Javat

initially put in an all-cash offer to purchase the property in his wife’s

name. But he changed course and had Pennco buy the condomin-

ium instead. Pennco’s director—Sipprell, who also happened to be

Javat’s employee—said he signed on Pennco’s behalf to purchase

the condominium “for Javat.” At the time, multiple emails showed

that Pennco did not have its own separate bank account. Also,

Pennco’s only member was Pennco Trust, which Javat established

in 2016. When he created this trust, he directed the trustee to op-

erate the trust for his benefit and identified himself as the sole ben-

eficiary for the trust. Plus, a “[l]ocal [r]epresentation [a]gree-

ment”—executed on Pennco’s behalf a day after the trust was

formed—identified Javat as Pennco’s “ultimate beneficial owner.”

This evidence was sufficient to show that Calh and Pennco were

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19-15168 Opinion of the Court 79

straw owners of the properties for Javat, which meant that the

companies lacked standing to challenge the properties’ forfeiture. 18

See id.

Calh and Pennco challenge the dismissal of their petitions

for lack of standing on three other grounds. First, citing United

States v. Gilbert, 244 F.3d 888 (11th Cir. 2001), they argue the district

court erred in ﬁnding they were straw owners for Javat during the

ancillary proceedings because that ﬁnding conﬂicted with the dis-

trict court’s preliminary forfeiture order that said Javat “poten-

tially” had an interest in the properties. But Gilbert is inapposite.

See id. at 917. There, the district court made conﬂicting ﬁndings of

fact; it found that a party owned a forfeitable interest in the subject

property but later found that the same party was a mere straw

owner without a forfeitable interest in the property. See id. That’s

not what happened here because the district court did not make a

factual ﬁnding about Calh’s and Pennco’s ownership in its prelimi-

nary forfeiture order and, thus, there were no conﬂicting factual

ﬁndings.

18 Calh and Pennco also challenge the district court’s jurisdiction to proceed

with the ancillary proceedings, arguing—like Javat did on his appeal—that the

preliminary forfeiture order’s statement that Javat “potentially” had an inter-

est in the properties was insufficient to grant the district court jurisdiction. But

because “[a]n ancillary proceeding constitutes the sole means by which a third-

party claimant can establish entitlement to return of forfeited property,” third

parties “lack[] standing to challenge the validity of the [preliminary order of

forfeiture]’s determination of forfeitability.” United States v. Davenport, 668

F.3d 1316, 1321 (11th Cir. 2012). Since Calh and Pennco are third parties, they

do not have standing to challenge the preliminary forfeiture order. See id.

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80 Opinion of the Court 19-15168

Second, Calh and Pennco argue that, in order to determine

whether they were straw owners for standing purposes, the district

court was required to apply state law to pierce the corporate veil.

But “standing in federal court is a question of federal law, not state

law.” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013). And whether

Calh or Pennco can be held liable under state corporate law by

piercing the corporate veil is irrelevant to whether they suffered a

constitutionally cognizable injury sufficient to confer standing as a

matter of federal law. Cf. Via Mat, 446 F.3d at 1262 (“At the heart

of Article III standing is the existence of an injury, not owner-

ship.”). That’s why we and our sister circuits have often assessed

whether straw owners had Article III standing without reference

to state law. See 900 Rio Vista Blvd., 803 F.2d at 630 (affirming straw-

owner finding with no reference to state law); United States v. 500

Delaware St., 113 F.3d 310, 312 (2d Cir. 1997) (same); United States

v. Contents of Accts. Nos. 3034504504 & 144-07143 at Merrill Lynch,

Pierce, Fenner & Smith, Inc., 971 F.2d 974, 985 (3d Cir. 1992) (same).

Third, Calh and Pennco contend that the district court mis-

applied the “relation back doctrine” when it considered facts re-

lated to ownership before the preliminary forfeiture order. But the

district court did not apply that inapplicable doctrine. “The rela-

tion-back doctrine operates retroactively to vest title in the govern-

ment effective as of the time of the act giving rise to the forfeiture.”

United States v. Bailey, 419 F.3d 1208, 1213 (11th Cir. 2005) (citation

modified). It does not mean, as Calh and Pennco imply, that a

court cannot look to pre-forfeiture facts in determining whether an

entity is a straw owner. See, e.g., United States v. Carrell, 252 F.3d

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19-15168 Opinion of the Court 81

1193, 1204–05 (11th Cir. 2001) (looking to what the purported

owner of the property knew years before the government seized

the property). The district court therefore correctly concluded that

Calh and Pennco did not have standing to contest the forfeiture

proceedings.19

CONCLUSION

For these reasons, we affirm Javat’s and Soto’s convictions

and sentences, as well as the district court’s restitution and forfei-

ture orders. But we remand for the limited purpose of correcting

19 In a single sentence, citing no authority, Javat also purports to challenge the

substitute asset forfeiture order, arguing that: “(i) a defendant must own prop-

erty to suffer its forfeiture and none was proven; (ii) substitute asset forfeiture

is predicated upon a valid prior forfeiture judgment and there is none here;

(iii) without an identified forfeited res, a defendant cannot take any ‘act or

omission’ to dissipate it[;] . . . and (iv) assuming a money judgment was im-

pliedly imposed, money judgments are not among the five types of substitute

forfeiture listed . . . and cannot be dissipated by act of a defendant or other-

wise.” Javat did not raise these arguments in his earlier appeal challenging the

substitute forfeiture judgment. See Maldonado v. U.S. Att’y. Gen., 664 F.3d 1369,

1375 (11th Cir. 2011) (“It is by now hornbook law that the doctrine of res judi-

cata ‘bars the filing of claims which were raised or could have been raised in

an earlier proceeding.’” (quoting Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235,

1238 (11th Cir.1999))). But even assuming these new arguments aren’t barred

by the earlier appeal, they aren’t properly before us given Javat’s passing ref-

erence to these issues. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,

681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim

when he either makes only passing reference

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