# United States v. Calh Holding Corp.

> Court of Appeals for the Eleventh Circuit · May 5, 2026

URL: https://www.frixlaw.com/law-library/cases/11320620

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** May 5, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** CON
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11320620

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

USCA11 Case: 19-15168 Document: 89-1 Date Filed: 05/05/2026 Page: 1 of 82

NOT FOR PUBLICATION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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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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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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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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(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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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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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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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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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 distr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11320620. Public record. Not legal advice.