# United States v. Juan Rene Caro > Court of Appeals for the Eleventh Circuit · January 10, 2012 · 454 F. App'x 817 URL: https://www.frixlaw.com/law-library/cases/3058598 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Juan Rene CARO, Maytemar Corporation, D.B.A. La Bamba Check Cashing, Defendants-Appellants - **Court:** Court of Appeals for the Eleventh Circuit - **Decided:** January 10, 2012 - **Citations:** 454 F. App'x 817 - **Precedential status:** Unpublished - **Opinion:** Opinion by Schlesinger - **Judges:** Barkett, Hull, Schlesinger - **Nature of suit:** NEW - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3058598 ## How later opinions describe it (automated extraction) - declining to consider an argument that a term of supervised release was excessive when the defendant acknowledged in the plea agreement that the term was proper and argued for supervised release at sentencing ## Opinion text [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 09-13407 JAN 10, 2012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. 2 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 5 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 14 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. 17 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.” 18 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. 19 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 22 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 irr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3058598. Public record. Not legal advice.