United States v. Juan Rene Caro

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 09-13407 JAN 10, 2012

________________________ JOHN LEY

CLERK

D. C. Docket No. 08-20044-CR-JAL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN RENE CARO,

MAYTEMAR CORPORATION,

d.b.a. La Bamba Check Cashing,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Southern District of Florida

_________________________

(January 10, 2012)

Before BARKETT and HULL, Circuit Judges, and SCHLESINGER,* District

Judge.

SCHLESINGER, District Judge:

I. INTRODUCTION

During the building boom in South Florida in the early 2000s, many within

the construction industry played fast and loose with federal and state regulations to

maximize profits and minimize taxes. These companies were able to find willing

partners in this pursuit, and Juan Rene Caro (“Caro”) was accused of being one of

these partners. Caro’s scheme allegedly involved using fictitious or “shell”

construction corporations to avoid taxes and insurance costs.

Normally, employers withhold from employees’ paychecks monies paid into

the federal treasury; social security and payroll taxes. These legitimate

construction companies, however, were trying to avoid these “obstacles,” so that

they could employ illegal aliens. One cannot simply write a payroll check to an

illegal alien, as such employment is illegal. In addition, these illegal aliens could

not open legitimate bank accounts where they could either deposit or cash

paychecks.

If the alleged scheme worked properly, all of these “obstacles” would be

overcome. A legitimate construction company would be approached by Caro or an

*

Honorable Harvey E. Schlesinger, United States District Judge for the Middle District

of Florida, sitting by designation.

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associate and offered an alternative to paying the taxes and insurance costs

associated with employees. Rather than pay employees by check, the legitimate

construction company would write a check to a shell corporation making it appear

that the shell company was a subcontractor and the employer of the legitimate

construction company’s employees.

The shell corporation would allegedly cash that check at Caro’s check

cashing store, or another check cashing store. A percentage of the face value of the

check was “charged” as a fee, with the remaining cash returned to the shell

corporation. The shell corporation, in turn, provided the cash to the legitimate

construction company. The cash, in its final voyage of the journey, was payed to

employees, including illegal aliens.

In addition to evading payroll taxes, the scheme allegedly allowed the

legitimate corporation to avoid the expense of workers’ compensation insurance.

This was accomplished when the shell company fraudulently procured workers

compensation insurance and permitted the legitimate company’s employees to

work under that insurance certificate.

The shell companies, on the other hand, were then left holding the bag.

They were responsible for the payroll taxes and insurance premiums but never paid

them. Instead, when all the unpaid taxes and premiums drew scrutiny, usually

within a year or eighteen months, the shell company simply dissolved leaving these

3

debts unpaid. Another shell company would quickly be incorporated and the cycle

would begin anew.

The flaw in Caro’s scheme was underestimating the Internal Revenue

Service (“IRS”). Financial institutions are required to complete and file with the

IRS a currency transaction report (“CTR”) for currency transactions involving

more than $10,000. Caro allegedly made material misrepresentations in the CTRs

for the transactions with these shell companies, which eventfully led to him being

investigated by the IRS and being charged in this case.

II. CHARGES

A thirty-three count Superceding Indictment was returned by a federal grand

jury based upon this alleged scheme.

A. Count One - Conspiracy

Count One charged a conspiracy between Caro, Alfredo Filomeno Gonzalez,

Jose Jorge Chaoui, Oscar Alberto Valle, Meylin Maria Morales, as well as

Maytemar Corporation, d/b/a La Bamba Check Cashing (“La Bamba”), and others;

in violation of 18 U.S.C. § 371. It was alleged that the conspiracy existed to

willfully violate currency transaction reporting requirements; in violation of 31

U.S.C. §§ 5313(a); 5324(a)(2), (d)(2). The purpose of the conspiracy allegedly

was to unlawfully enrich the co-conspirators by earning substantial commissions,

or “fees,” by cashing checks for these shell corporations.

4

In furtherance of the conspiracy, co-conspirators filed CTRs for transactions

with the shell companies that contained materially false statements and omissions

of material facts.

It was alleged from August 2005 until January 2008, that the co-

conspirators used various shell corporations and allowed customers to write checks

payable to those shell companies. The advantage of this was to make it appear that

the shell company was an actual subcontractor, engaged in construction work, for

the legitimate company. These checks were cashed for a “fee,” at La Bamba, or an

associated check cashing store, despite not being payable to the person conducting

the transaction.

Thereafter, Caro and other co-conspirators allegedly caused La Bamba to

file CTRs falsely stating that the parties involved in the check cashing transaction

were the shell companies and their nominee owners. This misrepresented the true

source of the money and the true identities of the individuals conducting the

transaction. From August 2005 until January 2008, the co-conspirators filed false

CTRs that reflected transactions totaling more that $132.7 million. In addition,

Caro payed a portion of the “fee” from the transaction to the co-conspirator as

payment for the use of the shell company.

The Superceding Indictment alleged twenty-one overt acts of the conspiracy.

These overt acts listed activities such as: Caro meeting with Miguel Obispo, the

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owner of an associated check cashing store, and discussing cashing checks in

exchange for cash at an agreed fee; filing false CTRs for transactions involving

Fast Construction, Group, Inc. (“Fast”), Spirit Construction Group Corporation

(“Spirit”), SB Construction Group Corporation (“SB”), and PAW Construction

(“PAW”); co-conspirator Chaoui’s accepting checks on July 23, 2007, from

Obispo payable to the shell companies; and Caro giving Obispo a business card

from DJ Construction Group, Inc. (“DJ”) for the purpose of Obispo contacting

Valle and becoming a part of this conspiracy.

B. Counts Two - Seventeen

Counts Two through Seventeen charged Caro, Gonzalez, Chaoui, Valle,

Morales, and La Bamba with causing and attempting to cause a domestic financial

institution to file CTRs that contained materially false statements and omissions of

material facts; in violation of 31 U.S.C. §§ 5313(a); 5324(a)(2), (d)(2); and 18

U.S.C. § 2. Count Two alleged that Caro and Chaoui, on April 6, 2007, accepted

checks payable to Spirit totaling $79,965, and caused and attempted to cause the

filing of a false CTR from that transaction stating that Marvin Marroquin had

cashed the check.1

Count Six alleged that Caro and Chaoui accepted checks payable to Spirit,

1

We need not address Count Three as only Chaoui was charged in that count and the

jury could not reach a verdict on that count. Nor must we address Counts Four, Five or Seven

because Caro was not convicted of those charges.

6

on May 18, 2007, in the amount of $233,836, and caused and attempted to cause a

false CTR from that transaction to be filed stating that Marvin Marroquin had

cashed the check.2 Count Eight alleged that on July 12, 2007, Caro accepted

checks payable to PAW in the amount of $60,120, and caused and attempted to

cause a false CTR to be filed from that transaction stating that Carlos Martinez

cashed the check.3 Count Nine alleged that on July 31, 2007, Caro accepted checks

payable to PAW in the amount of $46,050, and caused and attempted to cause a

false CTR to be filed from that transaction stating that Carlos Martinez cashed the

check. Count Ten alleged that on August 15, 2006, Caro and Gonzalez accepted

checks payable to PAW in the amount of $56,233, and caused and attempted to

cause a false CTR to be filed from that transaction stating that Carlos Martinez

cashed the check. Count Eleven alleged that on August 16, 2007, Caro and

Gonzales accepted checks payable to PAW in the amount of $44,325, and caused

and attempted to cause a false CTR to be filed from that transaction stating that

Carlos Martinez cashed the check. Count Twelve alleged that on August 22, 2007,

Caro and Gonzales accepted checks payable to PAW in the amount of $56,042,

and caused and attempted to cause a false CTR to be filed from that transaction

stating that Carlos Martinez cashed the check. Count Thirteen alleged that on

2

Count Six is also Count One’s overt act six.

3

Count Eight is also Count One’s overt act nine.

7

August 23, 2007, Caro and Gonzales accepted checks payable to PAW in the

amount of $41,208, and caused and attempted to cause a false CTR to be filed from

that transaction stating that Carlos Martinez cashed the check. Count Fourteen

alleged that on September 5, 2007, Caro and Gonzales accepted checks payable to

PAW in the amount of $107,812, and caused and attempted to cause a false CTR to

be filed from that transaction stating that Carlos Martinez cashed the check.4

Count Fifteen alleged that on September 5, 2007, Caro, Valle, and Morales

accepted and cashed checks payable to DJ in the amount of $100,288, and caused

and attempted to cause the filing of a false CTR that stated that G.V. had cashed

the check. Count Sixteen alleged that on September 26, 2007, Caro, Gonzalez,

Valle, and Morales accepted and cashed checks payable to DJ in the amount of

$72,447, and caused and attempted to cause the filing of a false CTR that stated

that G.V. had cashed the check. Count Seventeen alleged that on September 26,

2007, Caro and Gonzales accepted checks payable to PAW in the amount of

$55,015, and filed a false CTR from that transaction stating that Carlos Martinez

cashed the check.

C. Counts Eighteen - Thirty-Three

Counts Eighteen through Thirty-Three charged La Bamba with filing false

CTRs; in violation of 31 U.S.C. §§ 5313(a); 5322(b); and 18 U.S.C. § 2. These

4

Count Fourteen is part of Count One’s overt act seventeen.

8

counts involve the same transactions alleged in Counts Two through Seventeen, in

which Caro was a Defendant but not La Bamba.

III. PROCEEDINGS

Caro, Gonzalez, Chaoui, and La Bamba were jointly tried during a lengthy

jury trial.5 Vior dire began on November 5, 2008, closing arguments were

concluded on January 23, 2009, and the jury returned verdicts on February 9, 2009.

The Government’s witness list included 38 witnesses, and its exhibit list contained

well over 600 exhibits.6 By their verdict, the jury found Caro guilty of Counts

One, Two, Six, and Eight through Seventeen. La Bamba was convicted of Counts

One, Eighteen, Nineteen, and Twenty-Two through Thirty-Three.7 The jury could

not reach verdicts as to Gonzalez and Chaoui, and the District Court declared a

mistrial as to them. They both subsequently plead guilty to other offenses. Caro

was sentenced to a 216-month total term of imprisonment, which was below the

applicable sentencing guideline range, and La Bamba was placed on five years

5

Valle and Morales did not appear for trial and were deemed fugitives.

6

However, some of these exhibits like Exhibit 3 contain as many as 200 different CTRs

which were bundled into a single exhibit. It appears that while over 600 exhibit numbers were

used, many of these contain multiple single page CTRs, like exhibit 12 which contains over 208

different single page CTRs. So for record purposes, what appears to be two exhibits combined

they contained in reality in excess of 400 separate transactions which were identified

individually by witnesses using a stamped number on each sheet.

7

The Government provided an overabundance of evidence involving repeated filings of

false CTRs, but for the purposes of this Opinion we need only address the Counts of which Caro

and La Bamba were convicted.

9

probation.

Appellants Caro and La Bamba challenge their convictions on the grounds

that the District Court committed multiple errors throughout the trial. Specifically,

appellants maintain: there was insufficient evidence to support the convictions;

that the District Court permitted the government’s expert witness to impermissibly

substitute his own ideal standard for one reflecting “real world” financial

operations; that the District Court erred by allowing cross-examination into

defense counsel’s violation of the rule of sequestration and the cross-examination

of Caro’s industry expert about a 27-year-old felony conviction; the District Court

improperly excluded the testimony as to the presence of OSHA inspectors at

construction sites; the District Court improperly struck a portion of Caro’s closing

argument; the District Court permitted a government witness to testify about

Caro’s right to remain silent; that the government committed numerous instances

of misconduct; the District Court erred by failing to sever the trial as to the co-

defendants; that jury deliberations were tainted and the District Court improperly

destroyed a partial verdict; and that the District Court improperly instructed the

jury.

Appellants also challenge their sentences contending that the District Court

erred in calculating the sentencing guidelines by characterizing Caro as an

organizer/leader of a fraudulent financial reporting conspiracy, in applying a

10

two-level obstruction-of-justice enhancement, and imposing a 216-month sentence

which was procedurally and substantively unreasonable.

We reject Appellants’ attacks on their convictions and sentences and

conclude that they should be affirmed.

IV. FACTUAL BACKGROUND

The following evidence was presented at trial in support of the charges.

A. Bank Secrecy Act

The Currency and Foreign Transactions Reporting Act (“Bank Secrecy

Act”) enacted in 1970, Pub.L. 91–508, Tit. II, 84 Stat. 1118, delegates to the

Secretary of the Treasury the authority to establish regulations for financial

institutions. One of those regulations directs that financial institutions must

complete and file with the IRS a CTR for currency transactions involving more

than $10,000. 31 U.S.C. § 5313; old 31 C.F.R. 103.22 (75 FR 65806-01). All

financial institutions, including check-cashing stores, are subject to Bank Secrecy

Act (“BSA”) regulations and reporting requirements.

The BSA imposes duties upon financial institutions to keep certain records,

obtain particular information, file reports, and establish an effective anti-money

laundering compliance program. A financial institution is required to have a

compliance officer, who is responsible for the institution’s following all BSA

requirements. Although the compliance officer is not required to personally

11

prepare every CTR, that officer is required to sign the CTR and oversee the

process. A financial institution’s officers and directors must ensure that the BSA’s

requirements are fulfilled. Although BSA duties may be delegated, financial

institutions retain ultimate responsibility for compliance and no agency

relationship may cancel that responsibility.

Financial institutions must generate a “paper trail” to identify potential

taxable income and to prevent financial crimes. The Code of Federal Regulations

sets forth the instructions for completing and filing CTRs and directions are

attached to the form. Within the IRS, the Detroit Computer Center maintains a

major database of all CTR information called the Currency Bank Retrieval System

(“CBRS”), which is available to law enforcement agencies with jurisdiction to

investigate financial crimes.

Peter D. Djinis, a government expert, explained to the jury that the BSA

required financial institutions to report currency transactions over $10,000 to the

government.8 He explained that a CTR must identify the date, transaction amount,

the person or entity on whose behalf the transaction took place, and the individual

who was physically present at the institution to conduct the transaction.9

8

It was stipulated that La Bamba was a “domestic financial institution” under the Bank

Secrecy Act and subject to its CTR-reporting requirements.

9

IRS agent William Rondon explained that a CTR may properly be filed within fifteen

days of the date of a transaction.

12

Each CTR consists of three parts. Part 1 is concerned with identities of

parties to a transaction; section A requires the financial institution to identify and

report the beneficiary of the transaction, meaning the party on whose behalf the

transaction is conducted, while section B requires the financial institution to

identify and report the actual conductor of the transaction, that is, the party who is

either depositing and/or receiving more than $10,000 in currency.

Part 2 requires the date, the amount of the transaction, and the form of the

transaction. If the aggregate amount of different transactions by the same entity

during the same day exceeds $10,000 in currency, then a CTR must be filed. This

prohibits the structuring of transactions of less than $10,000 to avoid reporting

what in actuality is a series of daily transactions that amount to $10,000 or more.

Part 3 requires the names of the financial institution where the transaction

occurred, the person completing the form, and the person approving the completion

and filing of the form. The form provides extra pages to list multiple names if

more than one entity is involved in the transaction or if multiple financial

institutions are involved.

Djinis, further, explained that a financial services institution is required to

know its customers. An institution must not simply identify its customers, but it

has an obligation to understand who the customers actually are and identify the

nature of their business and activity. Customers who engage in repeated

13

transactions involving large amounts of cash generate greater risk and exposure for

the financial institution and it is these customers who the institution must place

under greater scrutiny. Key indicators of risky transactions are amounts,

frequency, and volume of a customer’s transactions. Thus, for money services

businesses, like check-cashing stores, they must be cautious that they are doing

business with the persons who are complying with the CTR requirements rather

than trying to avoid them.

Finally, Djinis hypothesized that if La Bamba handled more than $600

million in transactions, as the government suggested, that volume was

“exceptionally high” for the services La Bamba offered to the public. That volume

of the checks should have prompted La Bamba to investigate the underlying facts

of the transactions and the parties involved.

B. IRS Investigation

In 2006, an IRS task force began investigating the activities of South Florida

check-cashing stores. Information obtained from the CBRS database revealed that

hundreds of CTRs for transactions exceeding $10 million had been filed for DNC

Construction (“DNC”), Fast, and Spirit. Despite the volume of transactions, these

entities did not appear to be engaged in any actual construction work. This

anomaly provided the IRS with a starting point for their investigation.

1. La Bamba

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Initially, the investigation revealed that La Bamba, a money service business

that cashed checks, was a Florida corporation. The main store and corporate

offices were located in Miami. La Bamba maintained six branch stores and a fleet

of mobile vans that visited construction sites to cash checks.

Caro, the Owner and President of La Bamba, oversaw its daily operations.

Defendant Chaoui, with over 28 years experience as a bank officer, was La

Bamba’s compliance officer. Gonzalez, Caro’s brother-in-law and former licensed

contractor, was in charge of supervising the cashing of checks.

They were, however, not the only participants in the scheme. Oscar Valle

and his wife, Meylin Maria Morales, set up shell companies and functioned as

recruiters to bring new “clients” to Caro. Despite being the linchpin that held the

scheme together, Caro needed the help of all his co-conspirators because he could

not have carried on such a widespread and sophisticated scheme alone.

2. Spirit Construction

In December 2006, IRS Agent William Rondon interviewed Spirit’s

President, Marvin Marroquin. Marroquin cooperated with the government and

testified at trial. Marroquin testified that his brother-in-law, Alfredo Ortega, had

created Spirit with Marroquin’s driver’s license and social security number. Spirit

was created not for construction work, but for the sole purpose of cashing checks

to evade taxes. For this reason, Ortega explained to Marroquin that Spirit could

15

remain in existence for about a year and a half, but then Marroquin, as President,

should leave the country before the IRS discovered Spirit’s activity.

Ortega obtained a workers’ compensation insurance policy for Spirit and had

Marroquin sign approximately 40 blank checks for Spirit. At Ortega’s request,

Marroquin also obtained a rubber stamp with his signature so that Ortega could

cash checks without Marroquin’s signature, should Marroquin need to leave the

country. As Spirit’s President, Marroquin received a percentage of Spirit’s cashed

checks as compensation for his part in the scheme.

A form with Marroquin’s name and signature was found in a La Bamba file,

and La Bamba filed CTRs for transactions worth more than over $20.3 million on

Spirit’s behalf. Marroquin testified this was not accurate as he had never visited La

Bamba, he did not know Caro, Gonzalez, or Chaoui, nor did he authorize La

Bamba to cash checks for Spirit.

3. Cashflow Financing

Based upon information gleaned from the CBRS database, the IRS also

started investigating Cashflow Financing, Inc. (“Cashflow”), another check

cashing institution. In March 2007, Cashflow was searched and Miguel Obispo, its

owner, was detained and interviewed. In the end, Obispo agreed to cooperate with

the government in an undercover capacity. Based on that cooperation, the IRS

installed cameras and microphones in Cashflow, and Obispo was personally

16

equipped with a recording device.10

According to Obispo’s testimony, Cashflow had two types of corporate

clients – regular and irregular. The regular clients cashed $5,000 to $7,000 checks

every two weeks. The irregular clients cashed checks from $30,000 to $200,000

every week. The irregular clients included: DNC Construction; Fast; Spirit; SAN

Construction; WF Construction; Baba Construction; and Four-by-Four

Construction. Not surprisingly, these so-called construction clients were not

actually engaged in construction work, but were shell companies that could be used

as subcontractors for the purposes of cashing checks.

Over time, 90% of Cashflow’s business was derived from these irregular

companies. The only hindrance to Obispo’s growing business was limitations

imposed by his bank. The bank established an $180,000 ceiling on Cashflow’s

weekly check deposits. This ceiling forced Obispo to seek alternative sources of

funds, and he found willing partners in Caro and La Bamba.

4. La Bamba

In April 2005, one of Obispo’s friends introduced him to Caro. Caro agreed

to supply Obispo with $100,000 to $150,000 cash weekly, in order to allow

Cashflow to cash checks without his bank’s interference. Obispo borrowed the

10

These devices recorded over 100 undercover meetings between Obispo and La Bamba

staff, approximately 300 telephone conversations, and 380 DVDs that showed numerous

meetings between Obispo and Cashflow customers.

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cash from La Bamba on Friday and repaid it, along with 1.5% interest, the

following Wednesday.

Despite Obispo’s cash borrowing arrangement, the bank’s deposit

restrictions, mentioned above, continued to curtail Cashflow’s activities. In

August 2005, Obispo and Caro further attempted to circumvent these restrictions.

No longer would Obispo pick up cash from La Bamba, now he would bring the

checks to Caro at La Bamba for deposit and receive cash in return.

These corporate checks Obispo delivered to La Bamba emanated from the

shell companies. While he never explicitly divulged this to Caro, Obispo believed

the two had an “understanding” based on the amount of currency changing hands.

Caro acknowledged the fictitious nature of the companies when he described to

Obispo that his companies were “miquimbin,” meaning phony or fictitious

companies.11

Now that Obispo was bringing checks written to the shell companies directly

to La Bamba, the CTRs for the transactions were prepared and filed by La Bamba.

Obispo understood that La Bamba would prepare the CTRs to remove him and

Cashflow from the paper trial. Instead, the CTRs would be in the name of the shell

corporation. Not yet cooperating with the IRS, Obispo was intent on actively

11

No source language was identified for this term. However, according to Obispo,

“Miquimbin” was a word in Caro’s vocabulary. He explained that “out in the street, in everyday

slang, it means things that come from bad origins or misbegotten things.”

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deceiving the IRS and these false CTRs would facilitate that by indicating the

person to whom the check was written was actually withdrawing the money and

not Obispo.

Obispo was aware that the CTRs being filed based on his transactions with

Caro and La Bamba were inaccurate. To correctly record these transactions, two

CTRs should have been filed. One detailing the La Bamba to Cashflow

transaction. And a second from Cashflow providing the true identity of the person

who received the currency. Instead of following the proper procedure, Obispo

provided La Bamba with the information to generate and file a single, false CTR.12

This arrangement between Obispo, as a co-conspirator, and La Bamba lasted

from August 2005 to March 22, 2007, when the IRS intervened.13 But Obispo’s

dealings with Caro and La Bamba were far from over. From April through

November 2007, Obispo visited La Bamba in his customary manner; the difference

was he was now working for the IRS and wearing a recording device.

On April 5, 2007, Obispo paid his first visit to La Bamba as an informant,

and he brought with him fourteen checks totaling $129,544.58; including checks

12

The information consisted of: the tax or employer identification number for the

fictitious company; the corporate officer’s driver’s license; the company’s articles of

incorporation; and its workers’ compensation insurance certificate.

13

On March 22, 2007, a search warrant was executed by the IRS at Cashflow, and

Obispo agreed to become a government informant.

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made payable to Spirit. On April 6, 2010, Obispo again visited La Bamba bringing

with him checks totaling $227,079.76.

Based on these transactions, La Bamba prepared and filed several CTRs.14

One particular CTR, the subject of Count Two of the Superseding Indictment, lists

a transaction dated April 6, 2007. This CTR covers the cashing of checks, payable

to Spirit, in the amount of $79,965.00. Yet the CTR falsely reflects that

Marroquin, Spirit’s President, conducted the transaction. Obispo is not identified

on the form and he actually conducted the transaction.

On May 3, 2007, Obispo returned to La Bamba with checks, including some

payable to SB. Obispo provided La Bamba the necessary paperwork to make the

false CTRs for SB, including a copy of SB’s articles of incorporation, a copy of the

driver’s license for Salvador Mata, SB’s corporate officer, and a copy of Mata’s

social security card. The CTR La Bamba filed in connection with these checks

falsely stated that Mata had conducted the transaction. Again Obispo was

eliminated from being identified as part of the transaction.

On Obispo’s May 16, 2007, visit to La Bamba, Caro changed the names of

the payor on four of Obispo’s checks to avoid bank suspicion. The checks had

originally been made payable to La Bamba from Cashflow to avoid bank

14

Government’s Exhibit 3 indicates that La Bamba filed seven CTRs for transactions

involving Spirit from April 5, 2007, until April 20, 2007.

20

suspicion. To prevent the need for future alterations, Caro directed Obispo to use

different names on the checks and to deliver them sporadically. Caro instructed

Obispo to mark his checks with the initials “M.H.” on the back; these initials stood

for Obispo’s friend who introduced him to Caro. In that way, Caro knew they

were Obispo’s checks. Caro, further, suggested to Obispo that he make the checks

payable to Spirit to make it appear that Cashflow had given Spirit cash and was

depositing the checks at La Bamba. This practice would discourage further bank

inquiry.

On May 18, 2007, Obispo returned to La Bamba, bringing $404,204.23 in

checks; including two from Cashflow to Spirit. Caro obtained from Obispo the

information for the CTRs, and directed Obispo to write the other checks from

Cashflow in his own handwriting. When Obispo asked Caro the name of the

payee, Caro told him that he could make out the check to “whichever one you

want.” Obispo interpreted this comment to mean any fictitious company he wanted

so Obispo chose Spirit.

At least one CTR was filed by La Bamba with a transaction date of May 18,

2007. That CTR falsely reflected that Marroquin, from Spirit, presented checks for

$233,836.00 to La Bamba that day, and is the subject of Count Six.

In June 2007, Obispo disclosed to Caro that he and a friend had formed

PAW Construction. Obispo explained that PAW was “just like Spirit,” a shell

21

company that could be used to evade taxes and the payment of workers’

compensation insurance. Obispo touted the virtues of PAW, and assured Caro that

PAW was insured. Unbeknownst to Caro, PAW was created by IRS agents to

further its investigation. PAW was registered under the fictional name “Carlos

Martinez;” which was an alias used by IRS Special Agent Charles Torres. Checks

would be written to PAW from other IRS “undercover” companies, also created for

the investigation. The bank accounts for these undercover companies were funded

to ensure that the checks made payable to PAW would clear the payors’ bank

accounts.

Not surprisingly Caro and La Bamba willingly accepted checks made

payable to PAW. On July 12, 2007, Obispo presented eight PAW checks to La

Bamba. Caro only accepted two of the checks because of his concern about his

bank becoming suspicious. For those two checks, however, CTRs were prepared

at La Bamba that falsely identified Carlos Martinez, PAW’s corporate officer, as

conducting the transaction when it actually was Obispo. The CTR identified the

correct amount of the transaction, $60,120, and was signed by Chaoui, and it is the

subject of Count Eight.

Obispo returned to La Bamba, on July 31, 2007, with two more PAW

checks. Again, the CTR prepared and recorded by La Bamba falsely stated the

transaction had been conducted by Carlos Martinez, not Obispo. This CTR is the

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subject of Count Nine.

Obispo repeatedly visited La Bamba with PAW checks from June through

November 2007. For all the PAW checks, La Bamba prepared and filed CTRs that

falsely identified Carlos Martinez as having conducted the transactions, when in

reality it was Obispo.15

On one occasion, Obispo brought PAW checks to La Bamba that

intentionally had not been endorsed. In Gonzalez’s presence, Obispo signed them

Carlos Martinez. On Obispo’s last trip to La Bamba, on November 8, 2007, the

checks to PAW had again not been endorsed and Caro drew that to Obispo’s

attention. In Caro’s presence, Obispo signed the checks Carlos Martinez.

From June to November 2007, La Bamba filed 44 CTRs for PAW involving

transactions of $3.5 million. All the CTRs falsely stated that Carlos Martinez,

PAW’s corporate officer, conducted the transactions when it was Obispo who had

conducted them. These CTRs from this period are the subject of Count Ten,

Eleven, Twelve, Thirteen, Fourteen, and Seventeen.

During the fall of 2007, Caro offered to purchase Cashflow. While

discussing Cashflow’s worth, Caro questioned the profit Obispo realized from the

checks he cashed for legitimate companies. Caro estimated Cashflow cashed about

15

All of the CTRs filed by La Bamba on the PAW transactions stated that Elaine

Becerra was the preparer and Chaoui was the approving official.

23

$1 million a month in checks, without including the “strange people.” Caro stated

that one could not rely upon the “miquimbines,” because they are “here today and

gone tomorrow.” When Obispo suggested that the “strange people” possessed

some value and that Caro too had “strange people,” Caro retorted, “No, I no longer

have anything.”

Obispo was perplexed by this comment. Caro was apparently denying

having shell companies within his business, but Caro repeatedly accepted Obispo’s

checks to them. Caro explained that he had to be careful because his actions were

scrutinized under a “magnifying glass.”

Later, returning to the subject of the purchase of Cashflow, Caro told Obispo

that Obispo would continue delivering checks to Caro. La Bamba would continue

preparing the CTRs under the names of the fictitious companies. But in the event

of an audit, Obispo would be responsible for any documentation Caro might need.

During another conversation, Caro and Obispo discussed how La Bamba

prepared their CTRs. According to Caro, Chaoui had full responsibility for the

CTRs. Elaine Becerra, the person at La Bamba responsible for preparing all the

CTRs, may prepare them, but she was supervised by both Caro and Chaoui.

Obispo retorted that Caro did not know much about preparing and filing CTRs

because Becerra and Chaoui handled them. In response, Caro explained that he

had done the job before Chaoui’s arrival, and while Chaoui knew about banks

24

“from the inside,” Caro knew more “about banks.”

5. La Bamba’s Internal Operations

La Bamba was situated in a two-story building with a customer waiting area,

a teller window area, and four offices. Caro’s office was downstairs, while Elaine

Becerra and Chaoui’s offices were upstairs.

La Bamba had branch offices, but they were not authorized to cash checks in

large amounts. If someone presented a large check in one of those locations, the

cashier was required to call the main office for approval from Caro, Chaoui, or

Gonzalez. The same procedures applied when someone other than the registered

representative sought to cash a check at a branch store or a mobile van. No CTRs

were prepared at the branch stores or the mobile vans, even if they engaged in

transactions over $10,000. In such a case, the information was sent to La Bamba’s

main office where the CTR was prepared.

Before cashing checks, La Bamba’s tellers or cashiers verified that the check

was “okay” and that the person who was cashing the check was the proper person

to cash the check. This was verified consulting La Bamba’s database, which

contained the application that a company’s owner completed when first registering

with La Bamba. If anyone other than an authorized person wished to cash a check,

a supervisor, such as Caro or Gonzalez, was required to approve the transaction.

Regardless of the where the transaction occurred, from 2004-2008, Elaine

25

Becerra prepared all of La Bamba’s CTRs. An immigrant from Cuba, Becerra had

no background in finance or banking. But after receiving training from Teresita

Caro, Caro’s sister, on filling out the CTRs, they were Becerra’s responsibility.

Becerra was not solely responsible for the CTRs, however. Once they were

completed, Becerra submitted them to Chaoui for his approval and signature.

Chaoui also served as a resource if she had any questions about her work.

Becerra was never able to observe the actual cashing of checks from her

workstation. Instead she relied upon computer programs to assist her in the

preparation of the CTRs. When Becerra began working at La Bamba, in 2004, she

used a computer system, named Ideal, to create a database to record La Bamba’s

customers. In 2005, Ideal was replaced by Power Check, and in 2006 Archive was

added. Becerra used these tools simultaneously to retrieve the data that she needed

to fill out a CTR. The databases contained a company’s ID number, its address,

and the name of the person that cashed the check. Becerra trusted that if the check

was payable to a person or company, that was the person or company that actually

cashed the check.

Becerra also relied upon certain pieces of information from the check itself

to prepare the CTRs. The Archive computer program scanned the checks and

placed them into the system. She relied upon the amount from the check, the date,

and the name of the person who cashed the check. Becerra used the name of the

26

person or the company listed as the payee on the check to prepare a CTR, unless

she was instructed otherwise.

In gathering the information for the CTRs, Becerra also created her own

alphabetical list of check-payees for each day. With this list, Becerra created a

master list of the daily transactions. After she calculated the sum of the day’s

transactions for each payee, Becerra determined whether the aggregate daily

transactions exceeded $10,000, which triggered the reporting requirement.

Becerra prepared the CTRs on a weekly basis and submitted them to Chaoui.

Once signed, Becerra mailed them to the IRS. During her years at La Bamba, no

one ever told Becerra that she was not performing her job correctly.

The flaw in Becerra’s whole procedure was that she “trusted that the person

who was actually cashing the check [was] the person registered with Power

Check.” Consequently, the CTRs prepared by Becerra, approved by Chaoui, and

filed by La Bamba stated that particular individuals had cashed checks at La

Bamba on certain dates, although Becerra was unable to ascertain whether those

individuals had actually done so.

For example, Becerra’s log for June 29, 2006, reflected that Fast cashed

checks amounting to $156,755. The CTR filed by La Bamba stated that the

transaction was conducted by Jose Montenegro, Fast’s corporate officer, but

Becerra had not seen Montenegro nor could she verify whether he actually cashed

27

those checks.

Similarly, Becerra’s log for December 6, 2006, reflected that checks

amounting to $102,992 had been cashed for Spirit. The CTR filed by La Bamba

stated that Marroquin, Spirit’s corporate officer, had conducted the transaction,

although Becerra did not know whether Marroquin had been at La Bamba to cash

those checks. She simply assumed it was him.

During her employment with La Bamba, Becerra participated in training

meetings held twice yearly, which were run by Chaoui and Gonzalez. During

those meetings it was discussed how important it was to obtain the proper

information from people cashing checks to make Becerra’s job easier.

Furthermore, Becerra took periodic tests to ensure she understood CTR

preparation.

6. Oscar Valle

Delvin Ortega16 was employed by Oscar Valle. Ortega explained to the jury

his experience in Valle’s scheme. Oscar Valle created various shell companies,

including Trebol Construction (“Trebol”), Huber Construction (“Huber”), Mira

Construction (“Mira”), DJ, and SNF Construction (“SNF”), for the purpose of

obtaining workers’ compensation insurance policies and permitting other

companies to perform work under the insurance policies for Valle’s companies.

16

Ortega is also known as Tomas Garcia

28

Contractor employers wrote checks to Valle’s companies to pay their workers, and

these checks were cashed at La Bamba for a fee.

Like the other shell companies, Valle’s companies did not perform any

construction work and Valle’s friends and relatives functioned as their corporate

officers.17 As with the other shell companies, the addresses listed in state records

for Valle created companies were residential addresses that gave no indication that

construction business was transacted there.

Valle’s commissions were placed in an envelope for him at La Bamba. It

was Ortega’s responsibility to pick up the commissions for Huber and Mira. From

November 2006 until March 2007, Ortega waited at La Bamba, usually on Fridays

and sometimes on Saturdays, to pick up the envelopes containing Valle’s 4%

commissions. These commissions ranged from $13,000 to $16,000 weekly, but

Ortega recalled the largest was $23,000. Ortega received these commissions from

either a female employee, Caro or Gonzalez.

La Bamba filed CTRs for transactions totaling $60,949,702 for Valle’s five

shell companies. From March until November 2007, La Bamba filed 157 CTRs

for DJ transactions totaling $14.5 million. From September 2006 until November

17

The corporate representative for Trebol was Oscar Valle’s father; the corporate

representative for Huber was Valle’s mother Flora; the corporate representative for Mira was

Miguel Ramirez, Valle’s friend; the corporate representative for DJ was Valle’s aunt Gladys;

and the corporate representative for SNF was Francisco Ortega, another of Valle’s friends.

29

2007, La Bamba filed 243 CTRs for Huber transactions totaling $16 million. From

May 2006 to November 2007, La Bamba filed 211 CTRs for Mira transactions

totaling $18.9 million. From October to November 2007, La Bamba filed 13 CTRs

for SNF transactions totaling $557,000. From August 2005 until November 2007,

La Bamba filed 193 CTRs for Trebol transactions totaling $10.7 million.

In July 2007, Obispo confided to Caro that Spirit would be dissolving

because its insurance was expiring and it had no useful life without insurance.

Obispo asked Caro for a company where he could place some clients. Caro gave

Obispo a DJ business card, and told him to contact “Oscar” or “Tomas.”

In response to Obispo’s telephone call to DJ, Valle and Ortega met Obispo

at Cashflow. Valle explained he had spoken with Caro, and that he had three

companies with workers’ compensation insurance to offer Obispo. Obispo was

told he could write approximately $100,000 in checks to DJ weekly for a 3%

commission. The checks would be cashed at La Bamba, and Valle and La Bamba

would be responsible for preparing and filing the CTRs. They, further, agreed that

the CTRs would falsely list DJ’s corporate officer, Gladys Valle, as receiving the

cash from the check, instead of the person who actually received it. Valle assured

Obispo that he had been working with Caro for four years and had never

encountered a problem.

Valle gave Obispo the necessary paperwork for DJ, including a copy of the

30

articles of incorporation, a copy of Gladys Valle’s driver’s license and social

security number, and a certificate of workers’ compensation insurance. It was

agreed that DJ’s corporate officer would not be present when the checks were

cashed and that her signature would be forged.

Obispo delivered checks to La Bamba made payable to DJ Construction.

Caro deducted a 5% commission for Obispo’s checks written to DJ; 3% for Valle

and 2% for La Bamba.

From August until October 2007, Obispo brought checks to La Bamba made

payable to DJ from undercover IRS companies. Notably, in these transactions the

checks were left unendorsed. On one occasion, Caro asked Obispo to make the

amounts of the checks smaller. On another occasion, Caro reminded Obispo to

write his name on the back of the checks and to mark the checks with the initials

“M.H.” as was their custom.

7. Rodrigo Donadio

Caro and La Bamba cashed checks for more clients than simply Obispo and

Cashflow. One of those clients, Rodrigo Donadio, a subcontractor who owned the

companies, “Second to None” and “Bencomo Artemisa.”

Donadio had a pre-existing business relationship with Alfredo Ortega.

Ortega approached Donadio and asked how he was paying his workers, some of

whom were illegal aliens. Ortega explained a company was available that would

31

allow Donadio to write checks that could be used to pay his workers in cash. Other

companies were doing the same thing, according to Ortega.

After two weeks, Donadio asked Ortega about more details. Ortega

explained the scheme, including how Donadio’s workers would be covered by

workers’ compensation insurance. Donadio agreed and Ortega gave him the name

of DNC to write checks to. After another few weeks, Ortega directed Donadio to

write checks to Fast instead of DNC. Later, Donadio was directed to write checks

to Spirit. Regardless of to whom the checks were written, Donadio payed a 5% to

6% commission per check, and those checks were cashed at Cashflow. Donadio

testified that he knew the scheme was illegal, but he explained that the benefit of

using the shell companies was that he no longer had to pay payroll taxes or be

concerned with workers’ compensation insurance.

After some time, Donadio contacted Caro and asked if Caro could provide a

similar service, but at a reduced rate. Caro was willing to provide the identical

service for a 3.5% to 4% per check fee.

In early 2007, Caro gave Donadio the name Mira to write checks to. Caro

instructed Donadio to contact La Bamba for a copy of Mira’s insurance certificate.

Donadio wrote checks from Second to None to Mira in amounts ranging

from $10,000 to $80,000 every Thursday and sent them by facsimile to La Bamba.

Normally, several hours later Chaoui personally delivered the cash to Donadio.

32

However, on the few occasions when Donadio went to La Bamba to have his

checks cashed, this was done directly by Caro.

Specifically, Donadio testified about an April 4, 2007, check in the amount

of $29,204. Donadio explained that he signed the check to Mira and delivered it to

Chaoui. But Donadio could not explain the endorsement on the back of the check.

It was not his, nor did he know whose it was.

Donadio also began writing checks from his other company, Bencomo

Artesima, to Mira and cashing those checks at La Bamba. After seven to nine

months, Donadio was told by Chaoui to write his checks to another company, DJ.

Donadio again received an insurance certificate from La Bamba for DJ.

In March 2008, Donadio was approached by law enforcement officers.

Donadio cooperated in the investigation and obtained immunity for his statements

and was not charged in the conspiracy.

8. Adelino Agostinho

Caro also gave Contractor Adelino Agostinho, owner of Silva Builders, the

name of DJ to use to pay Silva’s payroll. Previously, Agostinho had employed a

similar system with subcontractors who had used the insurance certificates for

Valle’s shell companies, Trebol, Mira, Huber, and SNF. Those checks had been

cashed at La Bamba for a 6% commission.

Eventually, because the illegal aliens he employed had no taxpayer

33

identification numbers, Agostinho arranged with Caro to pay those workers by

writing checks to DJ that La Bamba would cash. Once he wrote a check to DJ,

Agostinho segregated the payment for those workers from the remainder of his

workforce and submitted, by facsimile transmission, an invoice under DJ

Construction’s name for the total amount of the check that he needed to pay those

workers, in addition to a 5% commission. Agostinho had an employee prepare the

DJ invoice so that it would appear to be legitimate in the event that it ever came

under scrutiny from the government.

The check was delivered to La Bamba, along with envelopes marked with

each worker’s name and amount that he was to receive. La Bamba cashed the

check from Silva Builders to DJ and filled each envelope with the appropriate

amount of cash for the workers to pick up at La Bamba on Friday afternoons.

In January 2008, Agostinho wrote three checks to DJ. These checks were

for different subcontractors who did work for Silva. Over a six-month period,

Agostinho wrote checks from Silva Builders to DJ for $2,687,668.44. Agostinho

was unaware whether La Bamba filed CTRs for those transactions.

9. Andres Martinez

Andres Martinez owned Design Builders. He and Mario Edgardo Varela

Rivera, who was in charge of personnel and payroll for Design Builders, met Caro

in February 2006. Rivera testified that Caro recommended that Design Builders use

34

Mira to pay its workers and avoid payroll taxes and workers’ compensation

insurance premiums.

Originally, La Bamba cashed checks for Design Builders’ employees every

Friday because most of its workers were illegal aliens. La Bamba loaned the

payroll money to Design Builders and permitted the money to be repaid one week

later. La Bamba charged Design Builders a commission of 2% for employees’

checks and 3% for its cash advances.

This continued until May 2006, when Caro suggested that Design Builders

simply make the checks payable to Mira. Caro explained to Rivera that Design

Builders would avoid payroll taxes, and workers’ compensation premiums by

making checks payable to Mira.

Eventually, Martinez, Rivera and Valle met at La Bamba, and Valle offered

Mira’s services for a 6% check fee. Valle subsequently provided Design Builders

with a copy of Mira’s insurance certificate. Design Builders wrote its first check to

Mira in May 2006, and for six or seven months thereafter. Design Builders wrote

checks to Mira until Valle instructed Rivera to make the checks payable to Huber,

Valle’s new company. Design Builders’ checks to Huber were cashed at La

Bamba for the same 6% commission.

The Huber arrangement continued for another seven or eight months until it

was replaced with DJ, yet another one of Valle’s companies. Design Builders’ first

35

check to DJ was written in March 2007.

Design Builders wrote checks for $575,188.20 to Huber; for $1,071,258.93

to Mira; and for $1,340,180.56 to DJ. No one at Design Builders ever worked for

Huber, Mira, or DJ. Design Builders never endorsed the checks made payable to

Valle’s companies.

10. Joseph Dieppa

Contractor Joseph Dieppa was the owner of Advanced Surface Restoration,

Inc. (“Advanced”). Dieppa obtained from Caro the names of shell companies to

write checks to so that he could pay his workers in cash, and avoid payroll taxes

and workers’ compensation insurance premiums.

In 2005, Dieppa’s company obtained a $60 million contract to construct a

condominium building on Fisher Island, a small island off Miami Beach. When

Dieppa encountered difficulties in retaining subcontractors, he contacted Caro,

who had a reputation for having a connection to subcontractors.

Dieppa’s labor shortfall continued prompting him to assemble his own team

of workers and to obtain from Caro the name of Morgan Construction (“Morgan”)

to write checks to in order to allow the payment of wages to those workers. By

writing checks to Morgan, Dieppa was able to pay his workers cash and avoid

payroll taxes. Dieppa also avoided the expense of premiums for workers’

compensation insurance because his workers used Morgan’s insurance certificate.

36

Still another benefit of Caro’s service, Dieppa hired illegal aliens who could be

paid with cash.

Caro charged Dieppa a 10% fee per check and gave him copies of Morgan’s

articles of incorporation and certificate of insurance. Every two weeks, Dieppa

wrote a check to Morgan for the workers’ salaries, adding a 10% commission for

Caro. After receiving the amount from Dieppa, Caro personally delivered the cash

to Dieppa, at his Fisher Island office. Caro also brought Dieppa invoices on

Morgan letterhead. The money Caro delivered to Dieppa was packaged in manila

envelopes and boxes. When Caro was not available to bring the cash to Dieppa,

Caro’s sister or Chaoui came in his place.

In 2006, Deippa assembled his own laborers for another project. Again he

used Caro’s services. This time, Caro gave him the name of Mira to write payroll

checks to. The Mira scheme operated in the same manner as with Morgan. Caro

furnished a copy of Mira’s insurance certificate and delivered Mira invoices to

Dieppa, along with cash.

In addition to Morgan and Mira, Dieppa wrote his payroll checks to the

following shell companies provided by Caro: Huber; SAS; Trebol; GQ; Petrillo

Construction; and Aly Trucking.

Caro also provided Deippa with false lien releases from the shell payee

companies to whom Deippa had written checks. A lien release indicates that a

37

contractor has been paid; the contractor releases the invoice. Without this signed

release, a subcontractor cannot be paid. Caro gave Dieppa releases from the

owners of Huber, Mira, and SNF. Dieppa’s business with Caro ended only when

Caro was arrested in January of 2008. By that time, Dieppa had written a total of

$3.9 million in checks to Caro provided companies.

11. Nevin Shapiro

Caro always sought opportunities to expand his client base. In early 2007,

when Caro met Nevin Kerry Shapiro at a Miami Heat basketball game, he offered

Shapiro a loan of $7,000 cash with no terms. Shapiro testified that Caro who had

the cash on his person, gave the money to Shapiro with only a handshake to seal

their agreement. Shapiro was to repay the money with a $500 fee. Shapiro repaid

the loan by writing a check for $7,523.23 from his real estate company to Huber, at

Caro’s direction.

Shapiro then borrowed $50,000 from Caro in October 2007 and repaid the

loan by writing a personal check for $52,500 to DNC. The $2,500 represented

interest on the loan and Shapiro did not endorse the check before personally

delivering it to Caro.

The loans from Caro and repayments from Shapiro continued for five more

transactions. Caro sent someone to Shapiro’s office to pick up Shapiro’s check or

Shapiro gave the check to Caro personally at a Heat game or by visiting La Bamba.

38

To repay the loans, Shapiro wrote checks to AFC Painting and Huber, entities who

had never performed any work for him, and finally, to La Bamba. Although Caro

insisted that the other companies Shapiro had written the checks to were “his,”

Shapiro was uncertain about the others. Caro agreed reluctantly to permit Shapiro

to write the final two checks, one for $50,000 and one for $52,000, directly to La

Bamba.

12. Caro and his bank

Caro frequently complained about scrutiny from his bank. Madeline

Jenkins, Peninsula Bank’s senior compliance officer, testified Caro’s complaints

were well founded because Peninsula Bank was constantly reviewing La Bamba’s

BSA compliance.

Jenkins explained that money service businesses, like La Bamba, are one of

the highest-risk accounts for a bank. Therefore, the bank monitors those accounts

more than the average. Jenkins explained that what made those accounts so risky

is a money service business (“MSB”) is responsible for its own due diligence on its

customers before processing a check, to maintain its business license. Jenkins

explained this as “Know Your Customer;” or knowing who they are an who they

claim to be. If the MSB is not conscientious in knowing its customer, however, the

bank can be placed at risk. This risk to the bank could result in closure or bank

members being prosecuted.

39

When Peninsula established accounts for La Bamba in 2004, it imposed the

conditions that separate accounts be maintained for depositing checks to

individuals and corporations. Peninsula also required La Bamba to maintain a

certificate of deposit on account as collateral for the other accounts.

Initially Peninsula limited La Bamba to a maximum of $30,000 an item and

$100,000 a company per day. This limitation was meant to prevent fraud. Caro

approached Peninsula about increasing these limits. Peninsula, agreed to the

increase provided that Caro establish a savings account and deposit $1 million to

be used as collateral when he wanted to draw against uncollected funds. This

arrangement worked for a few months until Caro requested cash in amounts that

exceeded the balances in all La Bamba accounts. Caro also requested to withdraw

cash from the $1 million savings account to fulfill his orders.

Jenkins wrote Caro seeking an explanation of the changes in La Bamba that

necessitated this amount of cash. According to Caro, La Bamba serviced

customers on the weekends, La Bamba’s mobile units were increasingly being

used, and La Bamba had six offices in South Florida. Interestingly, Caro failed to

mention La Bamba’s relationship with Cashflow or its increased business with

construction companies.

After an internal review of its policies, Peninsula began transactional

testing. Jenkins testified the bank began looking at the items La Bamba was

40

actually depositing and the pattern of dollars to individuals or corporations. Based

on this initiative, Peninsula discovered La Bamba permitted some corporations to

use a stamp to endorse checks, and that La Bamba’s exceeded the limits that had

been imposed on deposits.

Peninsula attempted to have a special software program installed at La

Bamba. This program, for all Peninsula’s MSB clients, looked for patterns in

activity. Only after being assured that Peninsula would not be able to remove data

from the system, was La Bamba willing to accept the software. Interestingly, when

Peninsula received the software’s data from La Bamba, it only included

information from La Bamba’s branch stores not the main office. Jenkins

questioned Caro about this, and he responded another software system existed at

the main store. However, that was never shared with Peninsula.

In an e-mail, dated May 30, 2007, Chaoui provided Peninsula with a list of

La Bamba’s mobile units and La Bamba’s quarterly report. This quarterly report

provided the number of checks cashed for the preceding three months, the fees

received from cashing checks, and the fees from other services. Absent from this

report was any reference to the millions of dollars in transactions it had monthly

with Cashflow.

Still wanting to strengthen its policies to MSBs, Peninsula retained an

attorney to create an agreement for Peninsula’s MSBs to sign and return. Jenkins

41

testified that this agreement required MSBs to: guarantee to the bank that they

were fulfilling their responsibilities for their licenses; provide information on their

transactions and corporate structure; and warranty use of its collateral. La Bamba

failed to return a signed copy of the form.

Later, Jenkins sought information on the identities of some of the companies

listed in La Bamba’s transactions. Chaoui replied that La Bamba had acquired two

vendors under La Bamba’s license, but Cashflow was again absent from this list.

Finally, at the end of October 2007, Peninsula conducted an on-site audit of

La Bamba to assess its BSA compliance. This audit concluded that La Bamba

needed improvement. A deficiency that was found, according to Jenkins, was La

Bamba’s apparent carelessness in filing its CTRs. Although the CTRs were timely

filed, about 10% of them, or 300 out of 3,250, were returned “because of errors or

legibility problems.” The audit recommended that the CTR personnel receive

additional training. Moreover, the audit noted that La Bamba was overdue for its

annual BSA training. The auditors, further, found La Bamba’s due diligence

deficient and recommended that its compliance officer and its staff receive more

training. The results of the audit were shared with Caro and La Bamba.

13. Government Agents

IRS Agent Rondon testified about his involvement in the investigation into

La Bamba, and detailed PAW checks that the IRS provided to Obispo, who in turn

42

delivered them to La Bamba. Rondon specifically testified regarding the

circumstances surrounding Counts Eight through Seventeen. Rondon detailed how

the IRS provided Obispo these checks, how Obispo took them to La Bamba, and

how La Bamba filed false CTRs for those transactions.

Rondon testified that he reviewed approximately 1,500 CTRs filed by La

Bamba in connection with this investigation. None of these CTRs were accurate,

according to Rondon, because they reported transactions involving shell companies

that were not engaged in construction.

IRS Agent Vincent Lozowicki explained that Peninsula provided the IRS

with monthly statements from La Bamba’s bank accounts. A review of those

accounts revealed that in 2006 and 2007, La Bamba deposited a total of over $600

million in checks each year for all sources. Over $400 million of that total were

from checks made payable to corporations and business entities. The remaining

$200 million were made payable to individuals. La Bamba averaged $50 to $60

million a month in check deposits in 2006 and 2007.

Lozowicki, further, explained that he reviewed some of the checks that La

Bamba had deposited for the shell corporations listed in the superseding

indictment. He observed that some of these checks had a stamped endorsement,

and he described this as unusual.

Isabel Fleitas, a senior investigative analyst with the IRS, was able to locate

43

all the CTRs filed by La Bamba for the shell companies named in the superseding

indictment. From August 2005 to January 18, 2008, La Bamba filed 1,559 CTRs

reflecting a total of $132,773,648.47 in transactions from only shell corporations.

Fleitas also explained that she determined that all of the companies who filed

CTRs filed them for more than $100,000 in a twelve month period.

14. Termination of Conspiracy

On January 18, 2008, agents executed a search warrant at La Bamba’s

headquarters and its warehouse. On the same day, agents arrested Caro, Chaoui,

and Gonzalez.

Among the items found in the La Bamba store were client files containing

forms and copies of driver’s licenses and articles of incorporation for companies,

including the documents for PAW and other fictitious companies; training manuals

on BSA compliance and forms showing that such training had been conducted at

La Bamba; boxes of business cards for DJ and SNF; and envelopes for

commissions for the recruiters of the shell companies, including one with Valle’s

name on it.

While out on bond following his arraignment, Caro met contractor Dieppa at

the Beach Club on Fisher Island. Caro asked Dieppa to “remove” the

subcontractors’ releases from his files. Dieppa interpreted this remark to mean,

“make them disappear.” In addition, Caro urged Dieppa to tell the investigators

44

that the work had been performed.

Based on this and other evidence, the jury found Caro guilty of Counts One,

Two, Six, and Eight through Seventeen. La Bamba was convicted of Counts One,

Eighteen, Nineteen, and Twenty-Two through Thirty-Three. The District Court

declared a mistrial as to Gonzalez and Chaoui. Both Chaoui and Gonzalez

subsequently pled guilty to corruptly endeavoring to obstruct and impede

administration of internal revenue laws, in violation of 26 U.S.C. § 7212(a), and

received three-year custodial sentences.

IV. STANDARDS OF REVIEW

More than one standard of review guides the analysis of this appeal. We

review de novo the following issues: the sufficiency of evidence, United States v.

Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007); allegations of prosecutorial

misconduct, United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006); a

possible double jeopardy violation, United States v. Thurston, 362 F.3d 1319, 1322

(11th Cir. 2004); and the correctness of jury instructions, United States v. Prather,

205 F.3d 1265, 1270 (11th Cir. 2000).

An abuse of discretion standard applies when we review: evidentiary

rulings, United States v. Novaton, 271 F.3d 968, 1005 (11th Cir. 2001); the failure

to give a requested jury instruction, United States v. Yeager, 331 F.3d 1216, 1222

45

(11th Cir. 2003); the denial of a motion for mistrial, United States v. Emmanuel,

565 F.3d 1324, 1334 (11th Cir. 2009); the denial of a severance motion, United

States v. Watchmaker, 761 F.2d 1459, 1476 (11th Cir. 1985); and a defendant’s

sentence, United States v. Bonilla, 579 F.3d 1233, 1239 (11th Cir. 2009).

V. TRIAL ISSUES

A. Sufficiency of Evidence

Caro maintains the evidence at trial was insufficient to convict him of the

CTR offenses.18 It is Caro’s contention that the government’s evidence adduced at

trial failed to establish the requisite mens rea to convict him of knowingly causing

false CTRs to be filed.

Caro was found guilty of Counts One, Two, Six, and Eight through

Seventeen of the Superseding Indictment, violations of 18 U.S.C. § 2,19 371;20 31

18

In a joint brief, Caro and La Bamba indicate that all appellate arguments therein also

apply to La Bamba. (Blue Brief at 2 & n. 1).

19

18 U.S.C. § 2 provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him

or another would be an offense against the United States, is punishable as a principal.

20

18 U.S.C. § 371 provides:

If two or more persons conspire either to commit any offense against the United

States, or to defraud the United States, or any agency thereof in any manner or for

any purpose, and one or more of such persons do any act to effect the object of the

46

U.S.C. § 5313(a);21 § 5324(a)(2),22 (d)(2).23

conspiracy, each shall be fined under this title or imprisoned not more than five

years, or both.

21

31 U.S.C. § 5313(a) provides:

When a domestic financial institution is involved in a transaction for the payment,

receipt, or transfer of United States coins or currency (or other monetary instruments

the Secretary of the Treasury prescribes), in an amount, denomination, or amount

and denomination, or under circumstances the Secretary prescribes by regulation, the

institution and any other participant in the transaction the Secretary may prescribe

shall file a report on the transaction at the time and in the way the Secretary

prescribes. A participant acting for another person shall make the report as the agent

or bailee of the person and identify the person for whom the transaction is being

made.

22

31 U.S.C. § 5324(a) provides:

(a) Domestic coin and currency transactions involving financial institutions.--No

person shall, for the purpose of evading the reporting requirements of section

5313(a) or 5325 or any regulation prescribed under any such section, the reporting

or recordkeeping requirements imposed by any order issued under section 5326, or

the recordkeeping requirements imposed by any regulation prescribed under section

21 of the Federal Deposit Insurance Act or section 123 of Public Law 91-508–

***

(2) cause or attempt to cause a domestic financial institution to file a report required

under section 5313(a) or 5325 or any regulation prescribed under any such section,

to file a report or to maintain a record required by any order issued under section

5326, or to maintain a record required pursuant to any regulation prescribed under

section 5326, or to maintain a record required pursuant to any regulation prescribed

under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law

91-508, that contains a material omission or misstatement of fact;

23

31 U.S.C. § 5313(d)(2) provides:

Whoever violates this section while violating another law of the United States or as

part of a pattern of any illegal activity involving more than $100,000 in a 12-month

period shall be fined twice the amount provided in subsection (b)(3) or (c)(3) (as the

case may be) of section 3571 of title 18, United States Code, imprisoned for not

more than 10 years, or both.

47

We review de novo the sufficiency of evidence. Taylor, 480 F.3d at 1026.

In reviewing such a challenge, we view the “‘evidence in the light most favorable

to the Government, drawing all reasonable inferences and credibility choices in the

Government’s favor.’” United States v. Friske, 640 F.3d 1288, 1291 (11th Cir.

2011)(quoting United States v. Browne, 505 F.3d 1229, 1253 (11th Cir. 2007)).

The jury’s verdict “cannot be overturned if any reasonable construction of the

evidence would have allowed the jury to find the defendant guilty beyond a

reasonable doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991).

“‘The evidence need not exclude every reasonable hypothesis of innocence

or be wholly inconsistent with every conclusion except that of guilt, provided that

a reasonable trier of fact could find that the evidence established guilt beyond a

reasonable doubt.’” United States v. Schmitz, 634 F.3d 1247, 1259 (11th Cir.

2011) (quoting United States v. Robertson, 493 F.3d 1322, 1329 (11th Cir. 2007)).

A jury “is free to draw between reasonable interpretations of the evidence

presented at trial.” United States v. Flores, 572 F.3d 1254 (11th Cir. 2009).

“Credibility determinations are left to the jury and the jury’s verdict will not be

disturbed on appeal unless the testimony is ‘incredible as a matter of law.’” Id.

(quoting United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)).

“The [BSA] and its accompanying regulations require banks and other

48

financial institutions to file a report with the government for any cash transactions

involving more than $10,000.” United States v. Vazquez, 53 F.3d 1216, 1218

(11th Cir. 1995); 31 U.S.C.A. § 5313(a); 31 C.F.R. § 103.22(b)(1) (2000). To

comply with the requirements, check-cashing stores, like La Bamba, must file a

CTR detailing these transactions with the IRS. 31 U.S.C. § 5313; 31 C.F.R. §

103.22 (2009).

It is illegal, according to § 5324(a)(2), for any person to “cause or attempt to

cause” a financial institution to file a report “that contains a material omission or

misstatement of fact.” “This anti-structuring law aims to prevent people from

either causing a bank to fail to file a required report or defeating the government’s

efforts to identify large cash transactions by splitting up a cash hoard in a manner

that avoids triggering a bank’s reporting requirements.” Vazquez, 53 F.3d at 1218

(quotation and citation omitted).24

At trial, the District Court instructed the jury concerning what the evidence

24

The Supreme Court, in Ratzlaf v. United States, 510 U.S. 135, 114 S. Ct. 655, 126 L.

Ed. 2d 615 (1994), determined that the language of § 5324 on its own was not clear as to the

requisite level of knowledge required to violate the statute, therefore § 5322(a) also needed to be

consulted. The Court required that the government demonstrate proof of knowledge of illegality

before a defendant could be convicted. 510 U.S. at 137.

However, since Ratzlaf, Congress amended § 5324, and gave it “its own criminal penalty

provision so reliance on § 5322 is no longer necessary.” Vazquez, 53 F.3d at 1218 n. 2. “Thus,

the only mental state apparently required under the new penalty provision is a purpose to evade

the filing requirement.” Id.; see United States v. Zehrbach, 47 F.3d 1252, 1262 n.7 (3rd Cir.

1995) (stating “the only mental state that the Government must prove in prosecutions for

structuring is the purpose of having a financial institution not file a required report.”)

49

must have demonstrated, beyond a reasonable doubt, to convict Caro and the other

co-conspirators in Count One.

What the evidence in the case must show beyond a reasonable

doubt is:

First, that two or more persons in some way or manner came to

a mutual understanding to try to accomplish a common and unlawful

plan, as charged in the indictment;

Second, that the Defendant, knowing the unlawful purpose of

the plan, willfully joined in it;

Third, that one of the conspirators during the existence of the

conspiracy knowingly committed at least one of the methods or overt

acts described in the indictment;

And, fourth, that such overt act was knowingly committed at or

about the time alleged in an effort to carry out or accomplish some

object of the conspiracy.

An overt act is any transaction or event, even one which may be

entirely innocent when considered alone, but which is knowingly

committed by a conspirator in an effort to accomplish some object of

the conspiracy.

A person may become a member of a conspiracy without

knowing all of the details of the unlawful scheme and without

knowing who all of the other members are.

So if a defendant has a general understanding of the unlawful

purpose of the plan and knowingly and willfully joins in that plan on

one occasion, that is sufficient to convict that Defendant for

conspiracy, even though the Defendant did not participate before and

even though the Defendant played only a minor part.

(Dkt. 528, pgs 63-64). As to Counts Two through Seventeen the District Court

instructed the jury:

So the Defendants can be found guilty of the counts for which

they have been individually charged in Counts 2 through 17 of the

superseding indictment only if all of the following facts are proved

beyond a reasonable doubt with respect to each count:

First, that the Defendant had knowledge of the currency

50

transaction reporting requirements;

Second, that, with such knowledge, the Defendant knowingly

caused or attempted to cause a domestic financial institution to file a

currency transaction report that continued25 a material omission or a

misstatement of fact;

And, third, that the purpose of the false report was to evade the

transaction reporting requirements.

A statement is false when made if it is untrue and is then known

to be untrue by the person making it. It is not necessary to show,

however, that the Government agency was, in fact, deceived or

misled.

A material omission or a misstatement of fact is material if it

has natural tendency to affect or influence or is capable of affecting or

influencing the exercise of a Government function.

The test is whether the material omission or misstatement of

fact has the capacity to impair or pervert the functioning of a

governmental agency.

In other words, a material omission or a misstatement of fact is

material if it relates to an important fact as distinguished from some

unimportant or trivial detail.

Id. at 65-67. The District Court also gave the following instruction for Counts

Two through Seventeen.

So, in this case, with regard to Counts 2 through 17 of the

superseding indictment and insofar as the Defendants, Juan Rene

Caro, Alfredo Gonzalez and Jose Chaoui, are concerned, respectively,

if you have first found any of those Defendants guilty of the

conspiracy offense as charged in Count 1 of the superseding

indictment, you may also find that specific Defendant guilty of any of

the offenses charged in Counts 2 through 17, even though such

Defendant did not personally participate in such offense, if you find

beyond a reasonable doubt:

First, that the offense charged in such count was committed by

a conspirator during the existence of the conspiracy and in furtherance

25

The written instructions provided to the jury state “contained,” not “continued.” (Dkt.

397, pg. 17).

51

of its objects;

Second, that the Defendant under consideration was a knowing

and willful member of the conspiracy at the time of the commission of

such offense;

And, third, that the commission of such offense by a

co-conspirator was a reasonably foreseeable consequence of the

conspiracy.

Id. at 69.

As for Counts Eighteen through Thirty-Three, the District Court instructed

the jury in the following manner:

The same is true with regard to Counts 18 through 33 of the

superseding indictment insofar as Defendant Maytemar Corporation,

doing business as La Bamba Check Cashing, is concerned.

So La Bamba Check Cashing can be found guilty of Counts 18

through 33 only if all of the following facts are proved beyond a

reasonable doubt with respect to each count:

First, that La Bamba Check Cashing had knowledge of the

currency transaction reporting requirements;

Second, that, with such knowledge, La Bamba Check Cashing

willfully filed a currency transaction report that contains a material

omission or a misstatement of fact;

And, third, that the purpose of the false report was to evade the

transaction reporting requirements.

A statement is false when made if it is untrue and is then known

to be untrue by the person making it. It is not necessary to show,

however, that the Government agency was, in fact, deceived or

misled.

A material omission or a misstatement of fact is material if it

has a natural tendency to affect or influence or is capable of affecting

or influencing the exercise of a government function.

The test is whether the material omission or misstatement of

fact has the capacity to impair or pervert the functioning of a

governmental agency.

In other words, a material omission or a misstatement of fact is

material if it relates to an important fact as distinguished from some

52

unimportant or trivial detail.

Id. at 67-68.26

Caro maintains that La Bamba’s CTRs for Obispo were proper and

contained no omissions or misstatements in violation of the BSA because Obispo

acted as La Bamba’s agent. As for the remaining CTRs, Caro asserts that the

evidence failed to prove that he knew of the falsity of the CTRs.27

We reject Caro’s assertions, and conclude there was sufficient evidence for

his convictions. The government introduced evidence that Valle, a co-conspirator

and co-defendant, set up a number of shell companies through which he filed false

CTRs with La Bamba. There was also testimony that Caro referred individuals to

Valle to take advantage of his shell companies.

Other witnesses, including Dieppa and Agostinho, testified they used La

Bamba to cash checks through shell companies to avoid taxes. Marroquin, the

President of Spirit, testified that he never entered La Bamba, yet La Bamba filed

CTRs for millions of dollars that reported him as conducting the transactions.

Caro was far from an inactive participant in this scheme. In fact, testimony

26

Caro make no independent argument that these instructions incorrectly characterized

the elements of the offenses for which he was convicted.

27

Caro makes no claim that there was insufficient evidence for the jury to determine he

was not “violating another law” or took part in “a pattern of any illegal activity involving more

than $100,000 in a 12-month period,” as required by 31 U.S.C. § 5313(d)(2).

53

was presented that Caro promoted the scheme. Donadio testified he received the

name of the shell company, Mira, directly from Caro, and Caro specifically

instructed him to fax copies of checks payable to shell companies directly to La

Bamba, and that cash was then delivered to Donadio by Chaoui. Agostinho and

Rivera explained Caro instructed them to write checks to shell companies to avoid

paying taxes. Rivera testified to the same activity and identified Caro as one of the

individuals that cashed the checks. Dieppa testified that he agreed with Caro to

write checks to shell companies for a fee. Dieppa also testified that Caro prepared

and provided to him false invoices for shell companies to circumvent bank

scrutiny, and that Caro instructed Dieppa to switch from one shell company to

another.

In addition, the jury viewed undercover video footage of Caro engaged in a

variety of activities. For example, video footage captured Caro structuring

deposits to avoid bank detection, openly discussing with the confidential informant

whether companies that were cashing checks were fictitious, acknowledging that

the companies that were cashing checks were fictitious, and making comments

suggesting that he was seeking to evade law enforcement.

Furthermore, the jury had to look no further than to Caro’s own admission

that he knew of the illicit nature of the fictitious companies whose checks he

accepted from Obispo. Caro told Obispo he could not rely upon the

54

“miquimbines,” because they were not reliable.

Additionally, the jury could consider the material discovered at La Bamba.

Among the items found in La Bamba were client files containing forms and copies

of driver’s licenses and articles of incorporation for companies, including the

documents for PAW and other fictitious companies; training manuals on BSA

compliance and forms showing that such training had been conducted at La

Bamba; boxes of business cards for DJ and SNF; and envelopes for commissions

for recruiters, including one for Valle.

It was possible for the jury to view Caro’s lack of oversight of Becerra, in

her preparation of the CTRs, as his attempt to shield himself from an appearance of

impropriety as to La Bamba’s actions. Becerra was trained on the procedure for

filling out CTRs by Caro’s sister. Becerra was also sequestered away from

customers who were actually cashing checks. The jury could reasonably infer this

was done so Becerra could not correctly identify those taking part in the

transactions at La Bamba. While Chaoui was Becerra’s supervisor and signed all

of La Bamba’s CTRs, Caro’s statement to Obispo that he had done the job before

Chaoui’s arrival and knew more “about banks” than Chaoui contradicted this

contention.

Finally, Caro cannot avoid conviction by arguing someone else committed

the illegal acts rather than him. Regardless of whether Obispo acted as his agent,

55

the CTRs filed for these transactions by La Bamba contained material

misstatements for which Caro can be found guilty as an aider and abetter under 18

U.S.C. § 2, for causing someone to commit a criminal act on his behalf. Sufficient

evidence was adduced at trial that Caro actively participated in the filing, or

causing to be filed, false CTRs.

Contrary to Caro’s assertions, the evidence was more than sufficient to allow

a reasonable trier of fact to find that Caro purposely evaded the CTR filing

requirements by causing La Bamba to omit material information and causing La

Bamba to willfully file CTRs knowing that they contained material omissions or

misstatements of fact.

B. Infringement of Fifth and Sixth Amendment Rights

Caro contends the District Court erred in allowing certain evidence and

testimony at trial. The cumulative effect of all these errors, according to Caro,

resulted in him receiving an unfair trial.

1. Expert Testimony

Caro argues that the District Court impermissibly allowed government

expert witness Djinis to testify regarding a MSB and the BSA obligations. Caro

filed a Motion in Limine directed at this testimony and objected to it during trial.

After listening to the argument of counsel, the District Court allowed the testimony

to be admitted explaining that Fed. R. Evid. 704 permitted an expert witness to

56

testify about an ultimate issue in the case, but not that an action was intentional.

This testimony failed, according to Caro, to take into account the actual business

practices of check-cashers and led the jury to believe they had a higher burden of

compliance with the BSA than the law imposed.

We review rulings on the admissibility of expert testimony for abuse of

discretion. Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.

1999)(citing General Elec. Co. v. Joiner, 522 U.S. 136, 142-43, 118 S.Ct. 512, 139

L.Ed.2d 508 (1997)). “This deferential standard is not relaxed even though a

ruling on the admissibility of expert evidence may be outcome-determinative.” Id.

An expert may offer opinion testimony on an ultimate issue of fact, Fed. R. Evid.

704, although “[a]n expert may not, however, merely tell the jury what result to

reach.” Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.

1990).

There was no abuse of discretion in allowing this testimony. Djinis was the

former deputy director of FinCEN, the agency that collects CTRs, compiles them

for law enforcement, and provides advice to companies on how to comply with the

BSA requirements. Djinis testified as to the content and purposes of the BSA, and

the CTR obligations of domestic financial institutions. This was not, as Caro

suggests, a witness inappropriately instructing the jury on the law applicable to the

case.

57

Furthermore, the District Court specifically instructed the jury that they had

heard testimony from experts, including Djinis, and that simply because a witness

has given an opinion, the jury was not bound to accept that opinion. (Dkt. 528, pg.

56). It was up to the jury to decide whether to rely upon that testimony. Id. The

jury was, therefore, free to reject Djinis’ conclusions.

2. Cross-Examination of Defense Experts

Caro contends the District Court erred when it permitted the government to

question defense witness Tillman about his violation of the sequestration rule and

defense witness Diaz-Yabor about his prior felony conviction that was nearly

three-decades old.

a. Tillman Sequestration

Caro contends the District Court improperly instructed the jury that it could

consider that defense expert Tillman violated the rule of sequestration by

reviewing the government witnesses’ testimony; while other witnesses had been

barred from doing so.

Ralph Tillman, a former IRS agent, was called by Chaoui as an expert in the

area of the BSA. (Dkt. 518, pg. 220). After being certified as an expert, defense

counsel Garvin began questioning Tillman about his preparation for formulating an

opinion about the CTRs filed by La Bamba. Id. at 222. Tillman was asked if, in

this preparation, he had reviewed the trial testimony of Miguel Obispo, Elaine

58

Becerra, and Peter Djinis. Id. at 222-23.

Thereupon, the government asked for a side-bar where it was explained that

Tillman had reviewed transcripts from the trial. The government moved to strike

Tillman’s testimony, and disqualify him for a violation of the rule of

sequestration.28 After listening to argument of counsel, the District Court found a

violation of the sequestration rule, but one that was neither intentional nor in bad

faith. (Dkt. 519, pg. 21). Relying upon United States v. Diaz, 248 F.3d 1065,

1104 (11th Cir. 2001), the District Court denied the government’s motion, but

allowed the government to question Tillman regarding the “nature of the

violation.” (Dkt. 519, pg. 22). The District Court also indicated that the jury

might be instructed at the close of the trial that they could consider Tillman’s

review of the testimony in evaluating his testimony. Id. During cross-

examination, the government questioned Tillman about the violation of the

sequestration rule. (Dkt. 519, pgs. 67-68).

At the close of the trial, the District Court instructed the jury, “[y]ou also

heard testimony that Ralph Tillman reviewed transcripts of previous testimony

provided during this trial while other witnesses were instructed not to do so. In

evaluating Mr. Tillman’s testimony, you may consider the fact that he reviewed

28

The rule of sequestration, from Fed.R.Evid. 615, provides that at the request of a

party, the court must order witnesses who will be testifying excluded from the proceedings so

that they cannot hear the testimony of the other witnesses.

59

transcripts of previous testimony before testifying.” (Dkt. 528, pg. 56). Earlier

during the charging conference, the parties discussed this instruction with the

Court, (Dkt. 521, pgs. 27-28), and after the District Court read the final proposed

instruction there was no objection.

“‘[I]t is a cardinal rule of appellate review that a party may not challenge as

error a ruling or other trial proceeding invited by that party.’” United States v.

Silvestri, 409 F.3d 1311, 1327-1328 (11th Cir. 2005)(citing United States v. Ross,

131 F.3d 970, 988 (11th Cir.1997)). The invited error doctrine “‘is implicated

when a party induces or invites the District Court into making an error.’” Id. (citing

United States v. Stone, 139 F.3d 822, 838 (11th Cir.1998)). “Where invited error

exists, it precludes a court from invoking the plain error rule and reversing.” Id.

(citing Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1294 (11th Cir.

2002)). Neither Caro, nor any other defendant, objected to the instruction.29

29

In the Reply Brief, Caro maintains that the defendants did, in fact, object to this jury

instruction. However, the record belies such an assertion. When the expert witness instruction

was addressed, during the charge conference, defense counsel Garvin stated,

Your Honor, our position is that, while we request strictly the pattern instruction

without the third paragraph [the one discussing the sequestration violation], if the

Court is so inclined to give a third paragraph, that the third paragraph in our

proposed instruction be given as opposed to the third paragraph in the Government’s.

(Dkt. 521, pg. 24). Thereupon the District Court presented possible language for the instruction.

Garvin once again expressed his concern,

Your Honor, while that is certainly better from Defendant Chaoui’s point of

view than what was proposed by the Government, the problem here is that, without

an expansion that it was unintentional, it makes it seem like Mr. Tillman was

60

Therefore, we need not review it. Moreover, even if we were to consider the

District Court’s jury instruction, such an instruction was not a misstatement of the

law and the District Court was completely within its discretion to craft the wording

employed. United States v. Jimenez, 780 F.2d 975, 981 (11th Cir.

1986)(concluding the district court “adequately responded to the possibility of

prejudice by specifically instructing the jury” that a violation of the sequestration

rule had occurred, and that violation could be used in evaluating the credibility of

the witness.). See also United States v. Campa, 529 F.3d 980, 992 (11th Cir.

2008)(stating that jury instructions are reviewed de novo as to whether they

misstate the law, but the District Court is given wide latitude in crafting the

language of the instruction).

b. Diaz-Yabor Conviction

Caro maintains the District Court improperly allowed the government to

purposely playing, for lack of a better term, fast and loose with the rules.

And on cross-examination, the Government did cross-examine him, I

thought, for a significant period of time on this issue.

(Dkt. 521, pg. 26). Defense Counsel Garvin then again requested the word

“unintentional” be placed in the instruction. Id.

After more discussion, the District Court suggested this language: “You also heard

testimony that Ralph Tillman reviewed transcripts of previous testimony provided during this

trial while other witnesses were instructed not to do so. In evaluating Mr. Tillman’s testimony,

you may consider the fact that he reviewed transcripts of previous testimony before testifying.”

(Dkt. 521, pg. 27). Thereupon, defense counsel Garvin stated, “We have no objection to that;”

counsel for La Bamba stated, “No objection, your Honor;” and counsel for Caro stated, “No

objection, your Honor.” (Id. at 27-28).

61

question Martin Diaz-Yabor, Caro’s construction industry expert, about a 27-year-

old felony conviction. Caro insists that the government failed to give the requisite

notice as required by Federal Rule of Evidence 609(b) prior to utilizing the

conviction. Caro insists the impeachment of this expert was of critical importance

because Diaz-Yabor would be testifying concerning “the real world business and

regulatory environment.” (Blue Brief, pg. 68).

Diaz-Yabor was called as a witness by Caro. After introductory questions,

Diaz-Yabor was asked about his educational background. During questioning by

the government, however, Diaz-Yabor admitted to a felony conviction from when

he was eighteen or twenty years old.

Caro moved for a mistrial for the government’s improper impeachment of

the witness through the use of a conviction more than ten years old.30

30

In denying the motion, the District Court summarized the circumstances giving rise to

the motion:

On December 19, 2008, Defendant Juan Rene Caro called Martin Diaz-Yabor as

an expert witness on the ordinary and customary business practices within South

Florida’s construction industry . . . . In certifying Mr. Diaz-Yabor as an expert,

Defendant relied in part on Mr. Diaz-Yabor’s educational background. Mr.

Diaz-Yabor’s resume provided by Defendants did not list dates next to his college

degrees.

****

After Defendant tendered him as an expert witness, the government was allowed to

voir dire Mr. Diaz-Yabor. (Id. at 6.) The government prosecutor, Wilfredo

Fernandez, began his voir dire by asking Mr. Diaz-Yabor about his resume and the

undated educational background listed thereon. In response to the government’s

62

questioning, Mr. Diaz-Yabor stated that he received a bachelor’s degree in

accounting and finance from Troy State University in 1985. The following exchange

then occurred between the witness and Mr. Fernandez:

MR. FERNANDEZ: When did you attend -- when did you start at the University of

Miami?

THE WITNESS: 1976

MR. FERNANDEZ: And when did you get your degree from the University of

Miami?

THE WITNESS: 1981, ‘89, ‘92, I believe, in that order.

MR. FERNANDEZ: What did you do from 1981 to 1985?

THE WITNESS: What did I do?

MR. FERNANDEZ: Yes.

THE WITNESS: I -- let’s see. 1981 to 1980 --

MR. FERNANDEZ: No. That would be backwards. 1981 to 1985.

THE WITNESS: 1981, I was in -- I was up in Alabama.

MR. FERNANDEZ: In Alabama?

THE WITNESS: Yes.

MR. FERNANDEZ: I’m sorry. I’m not following you. When did you start at Troy

State?

THE WITNESS: Around 1982 or ‘83.

MR. FERNANDEZ: And when did you graduate from Troy State?

THE WITNESS: 1985.

MR. FERNANDEZ: Then when did you go to the University of Miami?

THE WITNESS: 1976 to ‘81.

MR. FERNANDEZ: So you were both attending the University of Miami and Troy

State?

THE WITNESS: No, sir. 1976 to 1981, I went to the University of Miami.

MR. FERNANDEZ: And --

THE WITNESS: Okay. 1976 to 1980, I was enrolled as a bachelor -- going for a

bachelor’s of fine arts in graphic and industrial design.

MR. FERNANDEZ: Okay.

THE WITNESS: After I did my bachelor’s in science in accounting and finance.

[sic] 1989, I came back. I had sufficient credits because I was a double major at the

University of Miami from 1988. I completed my bachelor’s in architecture and

continued into my master’s in architecture and graduated from the master’s in

architecture in 1992.

MR. FERNANDEZ: What did you do during the time period between finishing at

Troy State and finishing at the University of Miami?

THE WITNESS: I was studying for -- and out in the field studying and working in

the construction industry.

MR. FERNANDEZ: Where was that?

THE WITNESS: Here in Miami, in Florida.

63

Later, during cross-examination, Mr. Fernandez revisited the chronology of the

witness’s educational background:

MR. FERNANDEZ: You attended Troy State University in Montgomery, Alabama,

from what year to what year?

THE WITNESS: I believe it was ‘83 to ‘85.

MR. FERNANDEZ: And where did you live when you were attending Troy State?

THE WITNESS: I lived in --

MR. FERNANDEZ: You don’t have to give me the address.

THE WITNESS: -- in Montgomery

MR. FERNANDEZ: Did you live in a dorm with -- at the university?

THE WITNESS: Yes. Kind of.

MR. FERNANDEZ: What do you mean?

THE WITNESS: I was in Montgomery, Alabama, in the Air Force station there.

MR. FERNANDEZ: What were you doing in the Air Force station?

THE WITNESS: I was in a -- in a camp.

MR. FERNANDEZ: What kind of camp?

THE WITNESS: A federal camp.

MR. FERNANDEZ: What kind of federal camp?

THE WITNESS: A federal camp, a federal prison camp.

MR. FERNANDEZ: It was a prison camp, was it not?

THE WITNESS: Yes, sir.

MR. FERNANDEZ: Why were you in the prison camp?

THE WITNESS: I did a boo-boo when I was 18, 20 years old. I mean I -- something

stupid when you’re a kid.

MR. FERNANDEZ: And when you say “boo-boo,” do you mean conspiracy to

traffic in cocaine?

THE WITNESS: That’s correct.

MR. FERNANDEZ: And how many years were you sentenced to?

THE WITNESS: Ten.

MR. FERNANDEZ: And that’s when you went -- you were attending Troy State

while in prison. Correct?

THE WITNESS: That’s correct.

MR. FERNANDEZ: And you were arrested subsequent to that, were you not?

THE WITNESS: It was from the same case

MR. FERNANDEZ: Or --

THE WITNESS: From -- from being in Montgomery. I’m sorry.

MR. FERNANDEZ: Well, actually, you were arrested in Tallahassee for possession

of marijuana. Wasn’t that --

THE WITNESS: No. That was -- came from Montgomery when I was there. It was

-- the guy that was there and -- kind of did a setup. And that’s why I was -- the judge

actually excused me -- well, he didn’t give me a -- you know, a real harsh sentence

64

Ultimately, the District Court concluded that Rule 609(b) and its time

limitations on prior convictions did not apply. Id. at 9. Rather, this impeachment

evidence fell under Rules 402 and 403, and there are no time limitations applicable

here. Id.31 The District Court further concluded, “this evidence was highly

because he understood that. But what is this relevant to the case, this case?

MR. FERNANDEZ: I’m asking you about your background because you were -- I

found you evasive.

THE WITNESS: We all make mistakes. I mean, it’s nothing --

MR. FERNANDEZ: Absolutely. But among your areas of expertise, we can now

include conspiracy in that, would we not?

THE WITNESS: Wait a minute. I don’t think so, sir. I think that from that time on,

it’s very clear that I have gone into society, I have done what I have done. I got my

degrees, my license, I practiced with integrity and honesty. And you can check

everything else you want. And I don’t have anything to hide.

MR. FERNANDEZ: Okay. I was just concerned because there was no dates on the

resume. Is it fair to say --

THE WITNESS: No. There are dates in the resume.

MR. FERNANDEZ: Not regarding your education.

THE WITNESS: Yes, sir, they are.

MR. FERNANDEZ: Okay. Let me -- Can you put up the ELMO for me, Judge?

THE COURT: Yes. It’s on.

(Dkt. 356, pgs. 2-5).

31

The District Court explained the government’s justification for the use of the

conviction:

[T]he government denies that it knew ahead of time that Mr. Diaz-Yabor had a prior

criminal conviction. Instead, the government contends that it thought that the

criminal history report it had pulled up on Martin Augusto Diaz, a/k/a Martin Diaz,

a/ka [sic] Martin A. Diaz, a/ka [sic] Martin Diaz-Yaber was another person, and the

prosecutor was only alerted that this might be the same person as Mr. Diaz-Yabor

after he was evasive during questioning of his educational background. Further, the

government contends that Mr. Diaz-Yabor’s testimony is essentially irrelevant, that

the defense waived any objection to the government’s questioning of Mr. Diaz-

Yabor’s background by failing to object at the time, that the government’s

questioning of Mr. Diaz-Yabor regarding his criminal history was brief and was

limited to addressing his honesty and credibility, and that any harm to the defense

65

probative of Mr. Diaz-Yabor’s educational background and work experience, two

of the indicium forming the basis of his expert opinion. Further, any prejudicial

effect on Defendants was minor.” Id. at 12.

We review a district court’s decision “to admit evidence of prior convictions

pursuant to Rule 609” for an abuse of discretion. United States v. Pritchard, 973

F.2d 905, 908 (11th Cir. 1992). “‘[E]videntiary and other non-constitutional errors

do not constitute grounds for reversal unless there is a reasonable likelihood that

they affected the defendant’s substantial rights; where an error had no substantial

influence on the outcome, and sufficient evidence uninfected by error supports the

verdict, reversal is not warranted.’” United States v. Christopher, 923 F.2d 1545,

1550 (11th Cir. 1991) (quoting United States v. Hawkins, 905 F.2d 1489, 1493

(11th Cir.1990)).

Under Fed. R. Evid. 609, a witness, other than the defendant, may be

impeached with a prior conviction if the crime was punishable by more than one

year of imprisonment. Fed. R. Evid. 609(a)(1). Evidence of convictions more than

10 years ago, however, are not admissible unless the court determines that the

probative value of the conviction substantially outweighs its prejudicial effect and

through Mr. Diaz-Yabor’s impeachment is minor and can be cured by a limiting

instruction by the Court.

(Dkt. 356, pg. 8).

66

the “adverse party is given sufficient written notice of intent to use such evidence

to provide the adverse party with a fair opportunity to contest the use of such

evidence.” Fed. R. Evid. 609(b).

“This circuit has held that a presumption exists against the use of prior crime

impeachment evidence over ten years old and that such convictions ‘will be

admitted very rarely and only in exceptional circumstances.’” United States v.

Tisdale, 817 F.2d 1552, 1555 (11th Cir. 1987) (quoting United States v. Cathey,

591 F.2d 268, 275 (5th Cir.1979)). To determine whether exceptional

circumstances are present, the district court “must consider whether the witness has

already been impeached, and if so, the probative value of the prior conviction

decreases accordingly.” Id. (quotation and citation omitted).

We observe there was no timely contemporaneous objection by Caro to this

testimony.32 Accordingly, we conclude that Caro has waived this issue by failing

to raise an objection pursuant to Fed. R. Evid. 103. See United States v.

Blackshear, 568 F.2d 1120, 1121-22 (5th Cir. 1978) (finding lack of timely,

specific objection waived noncompliance with Rule 609).33

Nevertheless, even assuming, arguendo, this issue was not waived, it was

32

Diaz-Yabor testified on December 19, 2008. No objection to this testimony was filed

until Caro’s Motion for Mistrial filed on December 26, 2008. (Dkt. 356).

33

We have adopted as binding precedent the decisions of the Fifth Circuit rendered prior

to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc).

67

harmless. The weight of the evidence against Caro, which included his own

statements, the statements of his co-conspirators, was more than sufficient to

convict him. Moreover, Diaz-Yabor’s testimony which essentially argued that all

the other construction companies were doing this type of activity is no defense at

all to the charges. In fact, such testimony contradicted the other testimony about

Caro’s actions. The jury was free to disregard Diaz-Yabor’s testimony as they so

chose.

3. Exclusion of Testimony

The District Court, according to Caro, erroneously sustained a government

objection to questions posed during cross-examination of Marvin Marroquin, a

government witness. Marroquin, Spirit’s President, was asked whether he, Obispo,

and Alfred Ortega discussed the presence of OSHA inspectors at a construction site

under Spirit’s insurance certificate. (Dkt. 556, pgs. 85-86). This testimony,

according to Caro, would have supported the reasonable suggestion that the

companies he was dealing with were not merely shell corporations but actual

construction corporations, and should not have been excluded. The exclusion of

this testimony bolstered the government’s “otherwise unsupported deliberate

ignorance theory.”34

34

In his brief, Caro states that the “District Court also erred in admitting extraneous,

prejudicial evidence concerning the government informant’s criminal activities predating the

68

During cross-examination, Caro’s counsel repeatedly sought to ask

Marroquin about OSHA inspectors at job sites that Spirit was associated with.

During a sidebar, Caro’s counsel argued this testimony was admissible because the

government opened the door by asking Marroquin about Spirit’s fictitious nature.

(Dkt. 556, pg. 88). This testimony, according to counsel, would have tended to

show that Spirit was engaged in legitimate business activities. Id.

When asked by the District Court why this testimony was not hearsay,

Caro’s counsel attempted to justify the questions multiple ways. Id. at 88. First,

counsel asserted it was not hearsay because it was part of a recorded conversation.

Id. Second, counsel suggested the entire conversation should be admitted under

Rule 801(d)(2)(E). Id. at 89. Finally, counsel argued the statements were not

being admitted for the truth of the matter asserted, id. at 90, but rather to show the

effect upon the listener, Marroquin. Id. at 92.

Ultimately, the District Court excluded the testimony and explained it was

“not relevant. Not probative of any defense concerning any of the Defendants.

There’s been no indication of any nexus of these conversations that would relate to

the Defendants’ knowledge or lack of knowledge as to what Spirit Construction

indictment period, other government investigations of La Bamba not involving the charges

against Caro, and unredacted, misleading corporate records concerning their active status.”

(Blue Brief, pg. 69). These “catch-all” objections lack specificity and are not plainly presented,

and accordingly, they will not be addressed. United States v. Jernigan, 341 F.3d 1273, 1284 n.8

(11th Cir. 2003).

69

did or did not. And it’s hearsay.” Id. at 94-95.

We review a District Court’s evidentiary ruling for an abuse of discretion.

United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir. 2005). A district court’s

decision on evidentiary rulings will only be reversed if “the resulting error affected

the defendant’s substantial rights.” United States v. Dodds, 347 F.3d 893, 897

(11th Cir. 2003). The District Court held that Caro had not shown any connection

between the potential appearance of OSHA inspectors at Spirit’s job sites and

Caro’s knowledge or lack thereof. This ruling was not an abuse of discretion.

Interestingly, Caro does not now argue that this testimony was not hearsay.35

Instead, he maintains that this excluded evidence bolstered the government’s

unsupported deliberate ignorance theory. Such an assertion is belied by the

evidence against Caro, including Marroquin’s own testimony. Marroquin, Spirit’s

President, had previously testified that Spirit was created not for construction

work, but for the sole purpose of cashing checks to evade taxes.

The fact that OSHA inspectors may have come by does not alter the

testimony that Spirit was a shell company and not involved in actual construction.

Spirit was still a registered corporation in Florida but that does not mean that they

were in the actual construction business. The testimony shows that they were

35

Fed. R. Evid. 801(d)(2) provides that the statement being offered must be offered

against a party to qualify under 801(d)(2)(E).

70

supposed to appear as a legitimate construction company so OSHA inspectors

coming by would not change its character.

4. Defendant’s Closing Argument

Caro maintains that in striking certain portions of the defense closing

argument, the District Court “[f]ailed to accurately explain the extent of its ruling

and thus left it to the jury to determine how much of the defense closing it would

consider.” (Blue Brief, pg. 70). Caro, further, contends that the striking of this

argument was particularly harmful because this “evidence that was to be addressed

and explained away by defense counsel improperly appeared in the jury room and

played a role in deliberations.” Id.36

During closing argument, Caro’s counsel made the following argument:

Another red herring was the checks from Carlos Benitez. Again,

Mr. Obispo said that the checks from Carlos Benitez were Medicare

fraud checks. Well, let’s look at these checks. This is Exhibit 486

from the Government.

(Dkt. 527, pg. 38). The government objected claiming that it had been precluded

from presenting evidence of Caro’s other ongoing criminal investigations by the

District Court’s ruling on a Motion in Limine, the defense was arguing that

evidence in closing. Id. at 39.

The District Court sustained the objection and instructed the jury in the

36

This portion of the argument will be addressed infra.

71

following manner: “I have struck the last few portions of the statements made by

Mr. Black. He’s been instructed to go into another area. You are to disregard any

statements in this area.” Id. at 47. This instruction, according to Caro, lacks

specificity and created the risk that the jury disregarded more of the argument than

necessary.

A District Court “has broad discretion over the scope of closing argument.”

United States v. Gaines, 690 F.2d 849, 858 (11th Cir.1982). “Absent a showing of

an abuse of discretion the district court will not be reversed for limiting summation

as long as the defendant has the opportunity to make all legally tenable arguments

that are supported by the facts of the case.” Id.

We must be clear. Caro is not arguing that he should have been permitted to

continue his argument or that the District Court erred in limiting his closing

argument. Instead, Caro’s contention is that the language of the limiting

instruction left the jury without sufficient guidance on the amount of the closing

argument to disregard.

Under the invited error doctrine, however, we will not consider an argument

on appeal when the party making the argument invited or induced the district court

into making the alleged error. United States v. Love, 449 F.3d 1154, 1157 (11th

Cir. 2006). Here, Caro committed the error by making an improper argument

72

during closing. Then, once the District Court acted to correct this error, Caro had

no objection to the curative instruction.

Moreover, the record reflects the sound exercise of discretion by the District

Court. Evidence of other criminal investigations into Caro had previously been

excluded from the trial, and it was not error to keep this from the jury. Finally,

there is no question that this isolated instruction from the District Court did not

render Caro’s trial unfair.

5. Comment on Silence

Caro asserts that the government elicited testimony from Obispo that

compromised his right to remain silent. The following exchange occurred during

the government’s direct examination of Obispo:

Q. And he goes on to say on Page 16, Line 8, “Not counting the

strange people.”

What did you understand the reference to the “strange people” to

mean?

A. Fictitious corporations.

Q. You asked Mr. Caro, “But you also have strange people, and that’s

worth something,” to which Mr. Caro responds, “No, Migue. I no

longer have anything.” And what did you understand that to mean?

A. Well, I tell you what I understand and what I do not understand. I

understand that he’s telling me that he doesn’t have these corporations

in his -- or within his business. But on the other hand, I understand

that he accepted the fictitious companies -- corporations I bring in to

him.

Q. And how so?

A. He knows that all the corporations we were cashing checks for are

fictitious corporations. About that, there’s no -- well, I mean, I don’t

73

have the least doubt about that. Well, if he claims that DJ is a legit

corporation -- that may be one that he may mention – I would say it’s

not a --

(Dkt. 552, pgs. 78-79).37

At sidebar, Caro’s counsel argued this was a comment on Caro’s right to

remain silent. Id. at 79.38 The government responded that Obispo was simply

commenting on the conversation on the tape recording. Id. at 80.

The District Court directed the government’s attorney to clear up any

ambiguity with the next question, id., and that was done. The next question and

answer given were:

Q. Mr. Obispo, referring you back to Page 17, what did you

understand Mr. Caro to mean when he told you, “I no” -- I’m on Line

12 -- “I no longer have anything”? What was he referring to in this

conversation?

A. He’s making reference to the fact that within his own corporation

no shell companies or corporations are in operation.

Id. at 81.

To determine if there has been an impermissible comment on a defendant’s

right not to testify at trial, “the district court must consider, whether the statement

was manifestly intended or was of such character that a jury would naturally and

37

This passage concerns a conversation between Caro and Obispo, where Obispo was

explaining Caro’s reference to “strange people” as a reference to the fictitious corporations and

that Caro’s statement, “I no longer have anything” was Caro’s attempt to disassociate himself

from these corporations.

38

Caro did not move for a mistrial based on the comment.

74

necessarily take it to be a comment on the failure of an accused to testify.” United

States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). In determining the

appropriateness of the statement, “the court must consider the circumstances in

which the statement was made.” Id.

This testimony by Obispo was not a comment on Defendant’s right to

remain silent, and the District Court cleared up any ambiguities by requiring the

government to ask Obispo a follow-up question.

6. Government Misconduct

Throughout the trial, according to Caro, the government engaged in conduct

that inappropriately focused the jury’s attention away from the facts of the case and

onto character assassination of defense counsel, Caro and Caro’s family. Caro

asserts that these “prosecutorial excesses” denied him a fair trial. (Blue Brief, pg.

72).

We review claims of prosecutorial misconduct de novo because they involve

mixed questions of law and fact. United States v. Noriega, 117 F.3d 1206, 1218

(11th Cir. 1997). “To establish prosecutorial misconduct, ‘(1) the remarks must be

improper, and (2) the remarks must prejudicially affect the substantial rights of the

defendant.’” Eckhardt, 466 F.3d at 947 (quoting United States v. Eyster, 948 F.2d

1196, 1206 (11th Cir.1991)). The substantial rights of a defendant are

75

“prejudicially affected when a reasonable probability arises that, but for the

remarks, the outcome of the trial would have been different.” Id. (citing United

States v. Wilson, 149 F.3d 1298, 1301 (11th Cir.1998)). Nevertheless, if the

record reveals “sufficient independent evidence of guilt,” the prosecutorial error

may be harmless. United States v. Adams, 74 F.3d 1093, 1097–98 (11th

Cir.1996).

While lengthy, we consider it necessary to review each of the alleged acts of

impropriety. Below are the comments Caro complains of from the record.39 Some

of these comments are made during argument and others during objections. Caro

also complains about other remarks made outside of the presence of the jury, but

we need not address these as they would not have impacted the jury’s verdict.

Below are the statements, which are delineated in “a through fff,” as reflected in

the initial and reply briefs:40

a. During the cross-examination of Gonzalez by Grimberg, the government

asks the following question:

Whether you physically prepared the CTRs or not, Mr.

Gonzalez, you told the agents that you knew that this is how it was

being done.

39

Caro points to allegedly improper comment in both the initial and reply briefs. We

address all the comments Caro mentions.

40

For reference in these quotes, Messrs. Fernandez and Grimberg represent the

government.

76

You told them that you knew that the individuals identified in

the CTRs were not the individuals coming in to cash those checks.

You told them that, didn’t you?

(Dkt. 343, pg. 258).

b. This exchange occurred outside the presence of the jury. (Dkt. 343, pg.

263).

c. The government asked Agostinho this question: “Now, when Yuri came

back after meeting with Mr. Caro, did he have a company that he now

miraculously worked for?” Defense counsel interposed an objection and the

question was withdrawn. (Dkt. 558, pgs. 173-74).

d. During the cross-examination of Diaz-Yabor, the District Court hearing

argument on an objection. The government stated, “That’s the real issue in the

case, Judge.” (Dkt. 564, pg. 71).

e. Caro cites to a portion of the record, (Dkt. 344, pgs. 122-23), that does

not exist. This transcript (Dkt. 344) only includes pages 1-24.

f. Caro cites to a portion of the record, (Dkt. 345, pg. 149), that does not

exist. This transcript (Dkt. 345) only includes pages 1-38.

g. During rebuttal argument to the jury, the government stated:

the day before that this was some sort of competitive event, that I was

here to win at all costs.

77

This isn’t a football game. I am not an attorney for hire. I am a

prosecutor who is presenting in a court of law the evidence that the

Judge admits and that is presented to the jury and the jury decides

whether someone’s guilty or not guilty.

And the suggestion that there’s going to be a big parade in my

honor when I win this is spurious, to be quite candid with you.

But having said that, I want to walk with you through some of

the statements that were made by the defense counsel in the last two

days and remind you of some of the evidence that contradicts those

statements.

The fact that I did a PowerPoint to present my evidence in an

organized and quick manner seemed to have aggravated some of the

attorneys. So I did another one.

(Dkt. 528, pg. 6).

h. Again during rebuttal argument the government stated:

To suggest somehow that I, you know, tampered with the

evidence in some way by preparing witnesses for testimony is

disingenuous. Everybody does it, and it’s correct. That’s what you’re

supposed to do.

Imagine coming in here -- this trial would have been six months

with me on all fours, looking through boxes, trying to find the

evidence, “And so what happened next?”, “And so you like working

at La Bamba?”

This would have gone on till February. So there’s nothing

wrong with meeting with witnesses.

And when I cross-examine my witnesses and prepare them for

cross-examination, I’m doing so so [sic] that they know what to

expect, what -- the questions that they think need to be responded to.

78

It’s what their memory is. It’s what they saw, observed, heard.

That’s what they can testify to, not what I want them to testify to, but

what they remember.

There’s been all sorts of sprinkled -- I don’t know where this

came up in this case, the suggestion that all the bad things happened

on Friday at La Bamba.

(Dkt. 528, pg. 47-48).

i. The following exchange occurred during the direct examination of

Becerra:

BY MR. FERNANDEZ:

Q. Ms. Becerra, is this the first time you’ve testified in a court?

A. Yes.

Q. I noticed that several members of the Defendants’ families are here

to listen to your testimony. Does that make you uncomfortable at all?

MR. HERNANDEZ: Judge, I object to this.

THE COURT: Sustained.

MR. HERNANDEZ: I ask to strike.

THE COURT: The jury is instructed to disregard the last question.

MR. FERNANDEZ: I was going to ask if she wanted permission to

clear the courtroom, Judge, if she’s uncomfortable.

MR. ALTER: I object to that, Judge.

THE COURT: Just go ahead.

MR. ALTER: The prosecutor knows better than these stunts.

THE COURT: Just ask your questions,

(Dkt. 559, pgs. 143-44).

j. This discussion occurred out of the presence of the jury when defense

counsel sought a mistrial. (Dkt. 559, pgs. 171-79).

k. During the cross examination of Becerra, the government repeatedly

objected to a question about what time Caro finished work at La Bamba at night.

79

After attempting to rephrase a question a number of different ways, the government

objected in the following manner:

MR. FERNANDEZ: Wow. Objection. It’s the exact same

question we asked five minutes ago.

THE COURT: Sustained.

MR. HERNANDEZ: Is the Court’s ruling that I’m not –that this

is irrelevant to the overall structure of the business? And then I will

go move on to another area.

(Dkt. 560, pgs. 71).

l. The following exchange occurred during the cross examination of

Jenkins:

Q. And you would agree that this is an example of at least an attempt

to be in compliance with the law. Is that correct?

MR. FERNANDEZ: Objection, Judge.

THE COURT: Sustained.

BY MR. HERNANDEZ:

Q. You would agree that that [sic] is a demonstration of La Bamba

wanting to be in compliance?

MR. FERNANDEZ: Good grief. Objection.

THE COURT: Sustained.

(Dkt. 562, pg 115).

m. Caro cites to a portion of the record, (Dkt. 347, pg. 107), that does not

exist. This transcript (Dkt. 347) only includes pages 1-101.

n. The cross examination of Chaoui began in the following manner:

BY MR. HERNANDEZ:

Q. Mr. Chaoui, good afternoon.

A. How are you?

Q. I’m good. Thank you.

You were hired in August of 2005. Right?

80

A. Yes. Yes.

Q. And you indicated on direct examination that

you’d spent 25 years in the banking industry?

A. Yes.

Q. I assume you’re proud of your work when you were

in the banking industry.

A. I would hope so.

Q. You learned a lot?

A. Possibly. Yes.

Q. Did you consider yourself a thoroughly trained

individual in the profession of banking after 25 years?

A. In certain fields more than others, yes.

Q. And did you share -- do you share the opinion of

all of those people who came in here and talked about

your work ethic? Do you consider yourself a

hardworking person?

(Dkt. 346, pg. 118).

o. This portion of the record contains nothing objectionable. (Dkt. 346, pg.

76).

p. Caro cites to a portion of the record, (Dkt. 344, pgs. 30-33), that does not

exist. This transcript (Dkt. 344) only includes pages 1-24.

q. The following questions and answers are from the government’s cross

examination of Chaoui:

Q. Okay. Now, you were arrested almost a year ago.

Correct?

A. Yes, sir.

Q. And you have had a year to sort of think about this case. Is that fair

to say?

A. Absolutely, sir.

81

Q. And you’ve reviewed the evidence in this case both with your

attorney and with your brother-in-law, who is an attorney. Correct?

A. Yes, sir.

Q. You’ve reviewed the undercover tapes that pertain to you?

A. Yes.

Q. You’ve reviewed other undercover tapes as well?

A. Yes. I believe there has been others, yes, where I believe my name

was mentioned or they stated that it was referenced.

Q. You’ve reviewed the index that has 493 undercover recordings, the

date they were recorded and the people talking on the tapes. Correct?

A. Yes, sir.

Q. And you’ve reviewed most, if not all, of the hundreds of boxes of

records seized in the search warrant.

(Dkt. 347, pg. 64).

r. The government objected to a Caro’s closing argument as follows: “MR.

FERNANDEZ: Objection, Judge. That completely assumes facts that were not in

evidence.” (Dkt. 526, pg. 212).

s. Caro cites to a portion of the record, (Dkt. 344, pgs. 123-24), that does

not exist. This transcript (Dkt. 344) only includes pages 1-24.

t. The government stated the following during closing argument to the jury:

They all had bank accounts. But the reason they’re coming to

La Bamba is to not pay the taxes on it. That’s the scheme. And that’s

what makes it worthwhile to pay 5 percent of the face value.

I work very hard for my money, as I’m sure you do. You’re

going to have to pry 5 percent out of my cold, dead fingers before I’m

willing to do that unless there’s some benefit to me.

The benefit is you don’t have to pay taxes on it. That’s going to

cost – the taxes that you’re going to have to pay – the – on payroll

taxes, on whatever income tax is assessed to you, the cost of workers’

comp, that’s much more expensive than 5 percent.

82

So it’s sort of a deal. If it wasn’t for, again, that pesky illegal

part, it would actually be a very good deal.

The checks that Donadio wrote to Mira and to DJ were

unendorsed when delivered. What does that mean? We kept hearing

about endorsed and unendorsed checks, the fact that La Bamba stamps

these checks without knowing who these people are, are these people

authorized to sign checks.

They have their own little rubber stamp and just flop it on the

check. So Peninsula Bank thinks . . . .

(Dkt. 526, pg. 45).

u. Again, during closing argument to the jury:

I want you to think about September 5th, 2007, when Mr.

Gonzalez tells Mr. Obispo to -- that they need to stagger the deposit of

the checks so as not to make a stir with the bank, that stir being the

bank’s efforts to comply with the Bank Secrecy Act.

And I want you to think about September 13th, 2007, and all of

the videos involving Mr. Caro where he whispers, where he gestures,

where he talks about strange people and Miquinbins and dead people

and people in jail.

These, ladies and gentlemen -- these are the faces of guilty men.

After you review all of the evidence and after you deliberate

and review the testimony, the documents, the videos, the transcripts,

we submit to you that there is only one conclusion that you can reach,

and that is that these Defendants are guilty beyond any reasonable

doubt.

(Dkt. 526, pg. 178).

v. The following occurred during questioning of a witness by the

government:

BY MR. GRIMBERG:

Q. Given that example, Mr. Gonzalez, do you see now why the filing

of CTRs would help combat against tax fraud?

MR. ALTER: Objection as to form.

83

THE COURT: Sustained.

Rephrase your question.

MR. GRIMBERG: I’ll move on.

(Dkt. 343, pg. 180).

w. The only government conduct here involved interposing two objections.

(Dkt. 347, pgs. 79-81).

x. Caro cites to a portion of the record, (Dkt. 345, pg. 119), that does not

exist. This transcript (Dkt. 345) only includes pages 1-38.

y. The following exchange occurred during the redirect of Donadio:

Q. And did you, in fact, retain an attorney after that meeting?

A. Yes, I did.

Q. And did you meet with the agents again after meeting with your

attorney?

A. Yes. After talking to my attorney, we did.

Q. And since retaining your attorney – Mr. Weisberg – have you been

completely truthful and open with the investigators?

A. Yes, I have.

Q. And have you been completely truthful in your testimony in this

trial today and yesterday?

A. Yes.

MR. GARVIN: Objection, your Honor.

THE COURT: Sustained.

BY MR. GRIMBERG:

Q. What is your understanding, Mr. Donadio, about the consequences

if you were to provide untruthful testimony during the trial?

MR. GARVIN: Objection.

THE COURT: Overruled.

THE WITNESS: What was the question?

BY MR. GRIMBERG:

Q. What is your understanding of the consequences if you were to

provide untruthful testimony during your testimony today?

84

A. I don’t know.

Q. Have you been truthful, to the best of your knowledge?

MR. GARVIN: Objection, your Honor.

THE COURT: Sustained.

THE WITNESS: Yes, I have.

THE COURT: Sir, if I sustain the objection, you can’t answer the

question.

THE WITNESS: Oh, okay. Sorry.

MR. GRIMBERG: No further questions, your Honor.

THE COURT: You may step down, sir.

(Witness excused.)

(Dkt. 558, pgs. 52-53).

z. The following exchange occurred during the redirect examination of

Dieppa:

. . . US Attorney’s Office during your second meeting?

MR. BLACK: Objection.

THE COURT: Sustained.

Rephrase your question.

BY MR. GRIMBERG:

Q. Did you tell the truth?

A. Yes, sir.

MR. BLACK: Objection.

THE COURT: Sustained.

MR. BLACK: Move to strike.

THE COURT: The motion to strike is granted. The jury is instructed

to disregard the

question and answer.

BY MR. GRIMBERG:

Q. Now, since you have been retained by an attorney, have you been

candid and honest with law enforcement regarding all of their

questions concerning this case?

MR. BLACK: Objection.

THE WITNESS: Yes, sir.

THE COURT: Grounds?

85

MR. BLACK: Conclusion of the witness.

THE COURT: Overruled.

MR. BLACK: And vouching.

THE COURT: I’m sorry?

MR. BLACK: And vouching.

THE COURT: Sustained as to vouching.

(Dkt. 561, pg. 207).

aa. The proceedings occurred outside the presence of the jury and could not

have affected the verdict. (Dkt. 343, pg. 263).

bb. The proceedings occurred outside the presence of the jury and could not

have affected the verdict. (Dkt. 548, pgs. 79-80).

cc. The following is a lengthy portion of the government’s closing

argument:

put in his father’s name; Huber Construction Company, which is in

the name of Flora Valle, Oscar Valle's mother -- what a coinkidink.

They all end in “Valle” -- Mira Construction Group, Inc., which he

put in the name of Miguel Ramirez; DJ Construction Group, where he

used his aunt and later tried to cheat her out of commissions; and SNF

Construction Group, which is in the name of Francisco Ortega.

So here’s a guy who’s sitting in the lobby and getting

commissions; for what, we’re not quite sure. “Oh, but that happens all

the time in the construction industry.” Does it? This is how you work

in construction? You have to create a fake company and then pay

someone a kickback in order to use the company? Hmm.

Between all five companies, La Bamba filed false CTRs

totaling $60 million. Now, you look at that guy. Does that look like a

guy who’s responsible for 60 million dollars’ worth of construction

work? “Well, you know, we really didn’t check. There was so many

checks coming in. We’re not really sure.” Hmm.

86

The recruiters also included Maria del Carmen Martinez, who

you heard from. She was responsible for a company called San

Construction. The company was set up by her husband, something

that my mother refers to as “marrying poorly.”

The company was set up by Nelson Flores to allow others to

cash checks in the name of San Construction with the purpose of

avoiding paying income taxes and workers’ compensation insurance.

Ms. del Carmen Martinez, if you’ll recall, was wearing a prison

uniform because she’s currently serving a prison sentence in

connection with her role for cashing checks at Cashflow on behalf of

her husband and this company.

She collected fees at Cashflow based on checks cashed for San

Construction which totaled $4 million. Again, great work if you can

get it. You get a commission on all these checks. You don't have to

actually do construction work. You just stop by your local

check-cashing store and get your commission.

You heard from Jose Arroliga, who is also getting ready to

surrender to serve his prison sentence -- 18 months, he told us -- for

the creation of Baba Construction and WF Construction.

The company was set up in the name of his buddy, Orlando

Cajinas, in order to allow others to cash checks and collect fees at

Cashflow.

Mr. Arroliga tells us, like the other recruiters, there’s no

construction work going on at . . . .

(Dkt. 526, pgs. 28-29).

dd. This is a repeat of X. (Dkt. 558, pgs. 52-53).

ee. This exchange occurred during the direct examination of Agostinho by

the government:

BY MR. GRIMBERG:

Q. So, Mr. Agostinho, when Mr. Balbuena came back from looking

for -- going to the address that was listed for Mira Construction, what

did he tell you?

A. Huber Construction.

87

Q. I’m sorry. Huber Construction. What did he tell you?

A. Well, he came back and says, “Hey, we have a problem here. I

went to this address. This is a little apartment in the middle of

nowhere. There’s no one that lives there that, you know, knows

anything about this company. They don’t know who this guy is. So

we got a problem on our hands.”

(Dkt. 558, pg. 72).

ff. The following are questions posed by the government during redirect of

Agostinho:

BY MR. GRIMBERG:

Q. Is that true?

A. That’s true.

Q. What did you understand that to mean?

A. That I can cash a check that I received from the contractors I

worked for, go there and cash it.

Q. Why would you need to run a check from outside your own

company?

A. Not to -- in my opinion, obviously, not to run it through my books.

Q. Well, did you understand that to be legal?

A. No.

Q. What was your understanding?

A. That’s not legal.

Q. And you knew that at the time?

A. Yes.

Q. And you know that now?

A. Yes.

Q. And was there any question in your mind about the legality of that?

A. No.

Q. And those are Mr. Caro’s words?

A. Yes.

Q. Now, when Yuri came back after meeting with Mr. Caro, did he

have a company that he now miraculously worked for?

A. Yes.

Q. What was the name of that company?

88

MR. BLACK: Objection. Move to strike the characterization, your

Honor.

MR. GRIMBERG: Withdrawn. It’s argumentative.

BY MR. GRIMBERG:

Q. What was the name of that company?

A. I can’t tell you, because I --

THE COURT: Are you rephrasing the question?

MR. GRIMBERG: Yes.

THE COURT: Okay.

BY MR. GRIMBERG:

Q. What was the name of the company?

A. I don’t remember. He came in with a business card with a

company. I can’t remember the name of it.

Q. Did he subsequently -- I believe you said that he subsequently used

a different company.

A. Correct.

Q. And that different company was also provided by his contacts from

Rene Caro. Correct?

A. That is correct.

Q. What was the name of that company?

A. Huber Construction.

(Dkt. 558, pgs. 173-174).

gg. This is a repeat of I. (Dkt. 559, pgs. 143-44).

hh. This is a repeat of BB. (Dkt. 548, pgs. 79-80).

In the reply brief, Caro further mentions other questionable comments by the

government. Those are included in this list.

ii. In the rebuttal argument, the government made the following comments:

They started suggesting in their questions that Mr. Donadio

wasn’t going to be prosecuted as a result of this cooperation

agreement that he had with the Government.

89

You also recall that, when we actually showed you the

cooperation agreement, it said no such thing, and that none of these

people have been promised that they’re not going to be prosecuted.

You notice that the questioning in that area dropped off after

the first letter because everybody got the same letter.

And, in fact, the evidence that you have is that Mr. -- that Agent

Rondon testified that there’s at least 15 pending investigations as a

result of this. This doesn’t end here.

So the idea that these people somehow came to testify -- when I

say “these people,” Joseph Dieppa, Rodrigo Donadio, Adelino

Agostinho, Mario Varela -- the people who have nothing to do with

Mr. Obispo, the people who dealt directly with La Bamba, somehow

are getting a pass on this and their testimony is not to be believed is

disingenuous.

(Dkt. 528, pg. 28).

jj. In the rebuttal argument, the government made the following comments:

The IRS doesn’t record, and neither does the FBI. They don’t

record interviews because, if the tape machine breaks, the batteries go,

you didn’t press the right button, you’ve got nothing.

And one of the many reasons you don’t do it in this particular

case is because they’re at the scene of a search warrant and the agents

are getting in and out of the car, back and forth.

And then what? Then we’d be here saying, “Well, every time

you turned off the tape recorder, you did so so [sic] that he could say

something else” or, “What he was really saying was....” We’d have

that whole series of things. That’s why the agents sit there and they

take notes.

And to suggest that there was something nefarious about that,

that this is the first criminal case in recorded history that somebody’s

confession wasn’t recorded, is disingenuous because he knows that

that’s not true.

Let’s talk about Mr. Chaoui’s defenses.

Mr. Chaoui’s lawyer says that Mr. Chaoui was not paid under

the table. And, you know, again, Mr. Chaoui’s not charged with

income tax evasion.

90

No one has suggested he got paid under the table or didn’t get

paid under the table.

(Dkt. 528, pg. 31).

kk. In the rebuttal argument, the government made the following comments:

We heard from Ralph Tillman. And let me just clarify a couple

of things.

The argument was that the Government was angry that Ralph

Tillman testified. And, yes, we were angry. We were angry that he

was shown the trial transcripts from other witnesses, including Peter

Djinis’s, in order to craft his testimony at trial.

You’re not allowed to do that, and that’s what pissed us off, that

you were allowed to read the other expert’s testimony and them come

in and figure out what you had to say the opposite of what the other

witness said. You don’t do that.

We were angry that he was still an IRS agent at the time we

were investigating La Bamba, and that’s not right. You compromise --

you have to think back and wonder, “Was our investigation

compromised in any way?”

We’re not angry at his testimony. He says what he’s going to

say. He’s not an attorney. He’s opining about legal issues on agency

and things that he’s just simply not qualified to opine on. He’s

qualified to opine about IRS matters because he worked there for 34

years.

(Dkt. 528, pgs. 39-40).

ll. In the rebuttal argument, the government made the following comments:

So, number one, if you thought that video showed something

different, you could have played it.

Number two, I don’t show videotapes. You’re absolutely right.

I do not show videotapes of what other people are saying to witnesses.

That’s improper. That’s what they did with Mr. Tillman. That’s not

what I do.

91

I’m not going to show Monica Ruiz a series of videotapes with

other people speaking on them and then have her -- influence her

testimony and say what I want her to say on the stand.

I prepare every single witness that comes in here. I try not to

waste your time and the Court’s time. I’m organized. I come in. I meet

with all my witnesses. We go through, “Here’s what we’re going to go

through.”

I went through with Mr. Obispo all of these tapes. I played the

ones that I thought were relevant, that showed illegal conduct.

But I meet with all of my witnesses. There’s nothing wrong

with that. And the defense met with their witnesses.

To suggest somehow that I, you know, tampered with the

evidence in some way by preparing witnesses for testimony is

disingenuous. Everybody does it, and it’s correct. That’s what you’re

supposed to do.

(Dkt. 528, pgs. 47-48).

mm. During closing argument, the government made the following

comments referring to Tillman:

He had been personally involved with La Bamba when he

worked for the IRS. He had examined La Bamba in 1999 and 2001.

Both were done under his supervision. Both times he found them to be

in violation of the Bank Secrecy Act.

He testified about his theory on agency, but he acknowledged

that it’s his own personal opinion. He acknowledged that there’s no

statute, there’s no case, there’s no regulation that he is relying on for

this theory.

In fact, he acknowledged that the agency who is in charge of

interpreting --

MR. HERNANDEZ: I’m going to object to that, your Honor. That

misrepresents the testimony.

THE COURT: Overruled.

MR. GRIMBERG: He acknowledged that the agency that is

responsible for interpreting the Bank Secrecy Act, for deciding what

is and is not appropriate is FinCen, FinCen.

92

Remember, Peters Djinis was the former director of FinCen.

And Mr. Tillman, of course, could not explain how La Bamba could

have been justified in the CTRs that . . . .

(Dkt. 526, pg. 149).

nn. During rebuttal argument, the government made the following

statements:

The defense says that Peter Djinis agreed with Obispo -- that

Obispo was an agent of La Bamba. They say that to suggest that

there’s a conflict among the experts.

First of all, it’s apples and oranges. You’ve got on the one hand

Peter Djinis, who’s an attorney and the former deputy director of

FinCEN, the agency that rules over all of this. That’s why he was

asked to come and give expert testimony: “Here’s what the law is in

this area.”

What Mr. Garvin did was, in a hypothetical, suggest that

Obispo was a truck driver, just like the La Bamba truck drivers. And

in that scenario, the question was, “Do you have to do a CTR -- when

La Bamba gives money to the people in the truck to go out and spend

money, do you need to do a CTR?”

(Dkt. 528, pgs. 41-42).

oo. During cross examination of defense witness Esther Crespo, the

government asked the following questions.

Q. Good morning, Ms. Crespo. Nice to see you.

A. Good morning. How are you?

Q. Ms. Crespo, you are a -- you’re a certified translator for both the

courts and for private hire.

Correct?

A. Yes, sir.

(Dkt. 518, pg. 18).

93

pp. During rebuttal argument, the government made the following

statements:

What about La Bamba’s defenses? “We only committed a little

bit of fraud,” the “needle in a haystack” argument.

The Government charges that 132 million of CTRs filed by La

Bamba were done so falsely and it was done so knowingly and

willfully, knowing these companies were fictitious, to assist those

people in avoiding paying income taxes. It’s limited to those 15

companies, and the total is 132 million.

That’s what -- that’s what La Bamba reported. That’s what the

bank records show. That’s what their logs show.

At no point did the Government suggest that it was $600

million. The indictment says that La Bamba filed $600 million in

CTRs in 2006 and 2007. It doesn’t say those were false. It says they

filed 600 million. The indictment says 132 million of those were false.

The defense has come back and presented a chart saying that,

“Well, you think that’s bad? We cashed $600 million in 2007 alone.”

But that’s not what’s charged in the indictment.

So why isn’t La Bamba -- and you’ll also note in the jury

instructions there’s no little bit of fraud exception. If you’ve got a

little bit of fraud and a lot of other cases, that somehow makes it

better. It’s like being a little pregnant. You either are or you aren’t.

So why isn’t La Bamba still in business? You heard six

different times during opening and closing statements by the attorneys

that 62 employees are out of work, the Government shut La Bamba

down.

But did you hear any evidence that the Government shut La

Bamba down? That’s because we didn't. That’s why La Bamba is

charged in this indictment.

(Dkt. 528, pgs. 18-19).

qq. During the cross examination of defense witness Ruben Pedron, the

government asked the following questions:

94

BY MR. FERNANDEZ:

Q. Good afternoon, Mr. Padron (verbatim).

A. Good afternoon. It’s “Pedron,” with an “E.”

Q. “Pedron.” “Pedron.”

If I could ask you just a couple of questions, I looked at --

looked you up on the Internet very briefly and I know that you have

been with SunTrust for approximately 25 years, 27 years. Is that

correct?

A. That’s correct.

Q. You’ve done a number of charitable and civic works within the

community?

A. Yes.

Q. I noticed that you hosted a real estate panel for the Miami Gay &

Lesbian conference about a year ago. Correct?

A. Yeah. That’s true. About 18 months ago, I think.

Q. So you’ve done a lot of work in the community. You’ve done

some civic activities.

You are comfortable with the prosecution for bank fraud and tax

evasion and that sort of thing? Do you understand where that’s

coming from?

A. I mean, I have some idea. Sure.

(Dkt. 518, pgs. 123-24).

rr. During the cross examination of Russell Weigel, the government asked

the following questions.

A. That’s a difficult question to answer, Mr. Fernandez.

I mean, there have been times when, in my opinion, I have not

allowed cases to go forward that were, in my opinion, not thoroughly

investigated.

There have been times when I have thought that -- I mean, cases

were authorized and things had come to light afterwards.

Unfortunately, in the investigative process, not everything is

brought to light. A lot of times things come out during the process of

litigation and sometimes, at that point, it’s too late to -- institutionally

to deauthorize a case.

95

Q. Most of your --

A. That has happened.

Q. I'm sorry.

Most of your experience is in the civil arena, though; is it not?

A. Most is. Yes.

Q. As a state attorney, when it was someone’s liberty that was at

stake, would you ever prosecute

someone who you didn’t think was guilty?

(Dkt. 519, pg. 149).

ss. During the cross examination of Russell Weigel, the government asked

the following questions.

BY MR. FERNANDEZ:

Q. Mr. Weigel, finally, the last questions we were talking about, what

kind of case was it that was nolle pros’ed?

A. A theft case.

Q. How many witnesses, if you remember?

A. I have no idea at this point. I just remember the events.

Q. Do you remember how long you investigated it?

A. In that particular case, I believe I was handed the file maybe 24 to

48 hours before trial.

MR. FERNANDEZ: I have no further questions,

Judge. Thank you.

(Dkt. 519, pg. 152).

tt. This portion of the transcript pertains to cross examination of a

government witness and contains no objectionable comments by the government.

(Dkt. 563, pgs. 166, 170).

uu. During opening arguments, the government made the following

comments.

96

Mr. Obispo will also tell you that the day that law enforcement

-- the day that Special Agents William Rondon and Alfonso Herrera

came knocking on his door with a search warrant, that he confessed.

He confessed to the scheme, he confessed to his role in the

scheme, and he confessed to what they already suspected, which is

that he was working together with the folks at La Bamba.

And Mr. Obispo decided to do the right thing. He decided to

help law enforcement –

(Dkt. 545, pg. 46).

vv. During rebuttal argument, the government made the following

statements:

Let’s talk about Miguel Obispo a little bit, who suddenly is this

smooth and savvy liar who came to -- who convinced the Government

in order to save himself.

First of all, the Government didn’t need any convincing. The

Government was convinced that La Bamba was committing fraud

before Mr. Obispo got there. Mr. Obispo confirmed the fact that the

fraud was being conducted at La Bamba through eight months of . . . .

(Dkt. 528, pg. 8).

ww. During rebuttal argument, the government made the following

statements:

You can evaluate their credibility, their testimony, what their

motivation is to lie. I will tell you that I think it takes a special type of

person to come into federal court and admit to conspiring and filing

millions of dollars in checks and not having paid taxes on them.

So you can take that as you will. What’s their motivation to lie

in contrast with the Defendants’ motivation to criticize them and make

a story?

The Government only gave you half of Monica Ruiz’s

statement from Alfredo Gonzalez. I gave --Monica

This text is long and has been trimmed here. Open the source document for the complete record.