The opinion
Case: 10-15036 Date Filed: 08/29/2012 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 10-15036; 10-15045; 10-15046
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:09-cr-20610-JAL-1,
1:09-cr-20610-JAL-5,
1:09-cr-20610-JAL-4
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
SIXTO FIGUEROA,
MANUEL GARCIA,
ROLANDO HERRERA,
lllllllllllllllllllllllllllllllllllllll lDefendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 29, 2012)
Before TJOFLAT, KRAVITCH and EDMONDSON, Circuit Judges.
PER CURIAM:
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Sixto Figueroa appeals his convictions and concurrent prison sentences of
71 months for one count of conspiring, in violation of 18 U.S.C. § 1349, to
commit bank fraud, in violation of 18 U.S.C. § 1344 (Count 1), and seven counts
of bank fraud (Counts 2 through 8). Manuel Garcia and Rolando Herrera appeal
their convictions for the Count 1 conspiracy; Garcia also appeals his convictions
for bank fraud (Counts 6 and 8); Herrera also appeals his convictions for bank
fraud (Counts 3 and 7).
Figueroa seeks a new trial on the ground that District Court abused its
discretion in permitting the Government to introduce at trial evidence of prior bad
acts under Federal Rule of Evidence 404(b). He challenges his sentences on two
grounds: (1) the District Court erred in increasing his offense level under the
Sentencing Guidelines by four levels because he was a leader and organizer of the
conspiracy; (2) the court failed to comply with the requirements of 18 U.S.C.
§ 3553(a) in fashioning his sentences.
Garcia and Herrera seek judgments of acquittal on the ground that the
evidence was insufficient to convict.
I.
The criminal conduct in this case involved fraudulent representations made
to obtain lot loans from Wachovia Bank for nominee or “straw” buyers for seven
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Port Labelle properties owned by Florida Development Corporation (“FDC”).
Figueroa and his wife and co-defendant, Susy Figueroa (who has not joined
Figueroa in appealing), owned and operated FDC. In 2002, Figueroa and Susy
Figueroa, his wife bought 27 lots from Real Estate Properties, a company owned
by Susy’s mother; they intended to sell the lots and construct houses on them. By
the end of 2005, however, they were in such dire economic straits that the lots
were about to be foreclosed. To rescue themselves from this predicament, they
devised a scheme to obtain fraudulent mortgage loans from Wachovia for buyers
who could not qualify for a bank loan and would not be making the required down
payment at the closing of the loan. The scheme worked, and between March 2006
and March 2007, Wachovia made loans to seven unqualified buyers, who
purchased lots on “Springview” at artificially inflated values.1 The loans were for
80-90% of the appraised value of the lots. The inflated values were created this
way: (1) Figueroa “gifted” three nearby lots to family members in transactions that
appeared to be legitimate sales; (2) the amount of the documentary stamps affixed
to the warranty deeds conveying the lots indicated that the lots had sold for
$140,000 to $170,000 (much more than they were actually worth); and (3) the
1
The seven sales to the unqualified buyers were the subjects for the seven bank fraud
counts alleged in the indictment.
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bank’s appraisers used the sham sales as comparables in arriving at the fair market
values of the seven lots at issue. And to establish a borrower’s financial ability to
make the down payment (between 10 and 20% of the sales price), the conspirators
provided Wachovia with false documents indicating that the borrower was capable
of making the down payment at closing and the payment payments required by the
mortgage note. The bank’s losses were calculated for sentencing purposes at
$792,707. Against this background, we address the arguments appellants advance
in these appeals.
II.
Prior to trial, Figuero moved the District Court in limine to exclude Rule
404(b) evidence the Government stated that it intended to introduce at trial. The
evidence included (1) FDC’s purchase of the 27 lots in October 2002 from Real
Estate Properties, which bought them in April of that year; (2) Herrera’s purchase
of the property at 457 Glen Brook Drive in Lake Worth in March 2005; (3)
Herrera’s transfer of that property to himself and Figueroa in November 2005; and
(4) Herrera and Figueroa’s transfer of the property to themselves and members of
the Figueroa family in March 2006. The Government contended that the two
transactions listed in (1) were admissible as intrinsic evidence because they
explained how the Figueroas came into possession of the 27 lots at issue. (2)
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would be admissible only against Herrera, and (3) and (4) established the
relationship between Herrera and the Figueroas.
Figueroa also moved the court to exclude (5) evidence that, in 2000,
Figueroa approached codefendant Garcia-Montes to act as closing agent in a real
estate transaction and to release loan proceeds early so the seller could use the
money to satisfy the buyer’s cash-to-close obligation; (6) evidence that Figueroa
previously told Garcia-Montes that he could create and obtain fake financial
documents, including false W-2s and pay stubs, for submission to the bank so the
bank would conclude that the loan applicant was financially able to make the
required payment at closing and thereafter the mortgage loan; and (7) a tape-
recorded conversation in which Figueroa told Garcia-Montes that he had a scheme
to wipe out recorded mortgages to avoid paying the lender. The District Court
denied Figueroa’s motions and ruled the evidence admissible.
Rule 404(b) evidence of an uncharged “crime, wrong, or act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b).
Such evidence may be admissible for other purposes, however, as, for example,
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Id.
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For evidence of other crimes or acts to be admissible under Rule
404(b), (1) it must be relevant to an issue other than defendant’s
character; (2) there must be sufficient proof to enable a jury to find by
a preponderance of the evidence that the defendant committed the
act(s) in question; and (3) the probative value of the evidence cannot
be substantially outweighed by undue prejudice, and the evidence
must satisfy Rule 403.
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007). A defendant
who enters a not guilty plea makes his intent to commit the act with which he is
charged a material issue and imposes a substantial burden on the Government to
prove intent, which may be done by qualifying Rule 404(b) evidence. United
States v. Zapata, 139 F.3d 1355, 1358 (11th Cir. 1998).
Relevant evidence may be excluded, however, if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, waste of time, or needless presentation of
cumulative evidence. Fed. R. Evid. 403. Rule 403 should be invoked sparingly,
though, and the balance should be struck in favor of admissibility. Tinoco, 304
F.3d at 1120. In reviewing Rule 403 determinations, we “look at the evidence in a
light most favorable to its admission, maximizing its probative value and
minimizing its undue prejudicial impact.” Id. (quotation omitted). “Factors to be
considered include whether it appeared at the commencement of trial that the
defendant would contest the issue of intent, the overall similarity of the charged
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and extrinsic offenses, and the temporal proximity between the charged and
extrinsic offenses.” Edouard, 485 F.3d at 1345.
The District Court did not abuse its discretion in admitting the challenged
Rule 404(b) evidence because the probative value of the evidence was not
substantially outweighed by its prejudicial value. The evidence was relevant to
show Figueroa’s intent to defraud Wachovia. Additionally, the prior acts were
factually similar to the acts that led to the charged offenses and were not
temporally remote, for the prior acts all occurred within a matter of a few years.
Moreover, the court gave the jury a limiting instruction, which informed it that the
evidence of the prior acts could only be considered for a limited purpose, and that
those prior acts could not be relied on to prove that Figueroa committed the
charged offenses.
II.
Garcia and Herrera were each convicted of the conspiracy charge and two
substantive bank fraud counts. They argue that the evidence was insufficient to
convict them of any of the offenses.
We review de novo whether the evidence was sufficient to sustain a
conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). We
take the evidence in the light most favorable to the Government, resolving any
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conflicts in favor of its case. See United States v. Frank, 599 F.3d 1221, 1233
(11th Cir.), cert. denied, 131 S.Ct. 186 (2010).
In assessing the sufficiency of the evidence, “the issue is not whether a jury
reasonably could have acquitted but whether it reasonably could have found guilt
beyond a reasonable doubt.” United States v. Thompson, 473 F.3d 1137, 1142
(11th Cir. 2006). We assume that the jury made credibility choices in a way that
supports the verdict. Id. “Because the jury is free to choose among reasonable
constructions of the evidence, the evidence may be sufficient even if it is not
entirely inconsistent with conclusions other than guilt.” United States v. Ndiaye,
434 F.3d 1270, 1294 (11th Cir. 2006).
To obtain a 18 § 1344(1) conviction, the Government must prove: (1) that
the defendant intentionally participated in a scheme to defraud another of money
or property; and (2) that the intended victim of the scheme was a federally-insured
financial institution. See United States v. McCarrick, 294 F.3d 1286, 1290 (11th
Cir. 2002). To obtain a conviction under 18 U.S.C. § 1344(2), the Government
must prove three elements: “(1) that a scheme existed to obtain moneys, funds, or
credit in the custody or control of a federally-insured bank by fraud; (2) that the
defendant participated in the scheme by means of material false pretenses,
representations, or promises; and (3) that the defendant acted knowingly.” Id. To
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satisfy either subsection, “the government must prove specific intent to defraud.”
United States v. Goldsmith, 109 F.3d 714, 716 (11th Cir. 1997). To obtain a
conspiracy conviction under 18 U.S.C. § 1349, the Government must prove that
the defendant “knew of and willfully joined in the unlawful scheme to defraud.”
United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009).
The evidence was sufficient to convict Garcia on all three counts. Based on
the circumstantial evidence of the loan application process and what took place at
closing, a reasonable jury could infer Garcia’s knowledge and intent to defraud
Wachovia. No honest person could believe that it was possible to purchase
property without any significant initial monetary commitment in the face of the
lender’s closing documents that spelled out the commitment.
Testimony clearly established that materially false representations regarding
Garcia’s income and bank account balances were made to Wachovia during the
loan application process for the two loans he acquired. Additionally, the
settlement statements at closing indicated that the buyer, Garcia, had made the
down payment. However, Garcia-Montes testified that the down payment was
actually paid by the Figueroas, the sellers, which was a violation of Wachovia’s
policy. Sellars’s testimony also established that, around the time of closing,
Garcia received payments from the Figueroas. Officer Tamayo’s testimony
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establishes that, when interviewed by the authorities, Garcia lied and stated that no
one gave him money to purchase or pay for the properties.
Contrary to Garcia’s position on appeal, the jury received evidence that
Garcia was present at closing. Garcia-Montes testified that a copy of Garcia’s
driver’s license was contained in the closing files in order to verify his identity at
closing. Officer Tamayo testified that when she interviewed Garcia, he told her
that he had attended closing and signed the documents, but that he had not brought
any cash to the closing.
The evidence was also sufficient to convict Herrera on the three counts. A
reasonable jury could have found from the evidence that Herrera was involved
knowingly with the scheme to make misrepresentations to Wachovia to obtain
two lot loans.
Sottosanti’s testimony established that Herrera made materially false
representations regarding his income and bank account balances to Wachovia
during the loan application process to obtain the loans to buy the lots. The
settlement statements at both closings indicated that Herrera, the buyer, paid the
down payment. Garcia-Montes testified that each down payment was actually
paid by the sellers, the Figueroas, which was in violation of Wachovia’s policy.
Contrary to Herrera’s argument on appeal, there was evidence presented that
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Herrera was present at closing. Garcia-Montes testified that a copy of Herrera’s
driver’s license was contained in closing files in order to verify his identity at
closing. Additionally, during Sellars’s testimony, the jury was shown copies of
Herrera’s signature on the closing documents, the driver’s license, and bank
account signature cards, as well as the tax returns submitted with his loan
applications and those actually submitted to the IRS. The jury could compare the
signatures and infer that Herrera did in fact sign the closing documents, which
contained the materially false representation about who was paying the down
payment.
The Government also introduced evidence under Rule 404(b) that, in March
2005, Herrera engaged in similar conduct in obtaining a loan to purchase property
at 457 Glen Brook Drive. Herrera subsequently transferred this property to
himself and Figueroa and three days prior to this conveyance, he obtained a prime
equity line of credit, using the Figueroas’ house as collateral. While the jury could
not rely on these acts as evidence that Herrera committed the charged offenses, the
jury was allowed to rely on this evidence to show knowledge and intent to defraud
Wachovia.
III.
Figueroa contends that the District Court erred in increasing his offense
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level pursuant to U.S.S.G. § 3B1.1(a) on the ground that he was an organizer or
leader of criminal activity that involved five or more participants or was otherwise
extensive; therefore, his sentence is procedurally unreasonable. The commentary
to § 3B1.1 contains a list of factors the court should consider in determining
whether a defendant played a leadership role or organizational role in the criminal
activity, including: the exercise of decision making authority, the nature of the
participation in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and scope of the illegal activity,
and the degree of control and authority exercised over others. Id., comment. (n.4).
We review the reasonableness of a sentence under a “deferential abuse-of-
discretion standard of review.” Gall v. United States, 552 U.S. 38, 52, 128 S.Ct.
586, 598, 169 L.Ed.2d 445 (2007). We may “set aside a sentence only if we
determine, after giving a full measure of deference to the sentencing judge, that
the sentence imposed truly is unreasonable.” United States v. Irey, 612 F.3d 1160,
1191 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011).
The sentencing judge is required to impose a sentence that is “sufficient, but
not greater than necessary, to comply with the purposes” listed in 18 U.S.C. §
3553(a)(2), including the need to reflect the seriousness of the offense, promote
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respect for the law, provide just punishment for the offense, deter criminal
conduct, and protect the public from the defendant’s future criminal conduct. See
18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court must also
consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7).
Although § 3553(a)(6) requires the court to avoid unwarranted sentencing
disparity, concerns about disparate sentences among co-conspirators are not
implicated where the defendant and his codefendants are not similarly situated.
See United States v. Williams, 526 F.3d 1312, 1323 (11th Cir. 2008). “Disparity
between sentences imposed on codefendants is generally not an appropriate basis
for relief on appeal.” United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir.
2001).
The record fully supports the District Court’s finding that Figueroa was a
leader and organizer of the conspiracy; hence, the court properly enhanced his
offense level under § 3B1.1. Figueroa’s concurrent sentences of 71 months are
not substantively unreasonable because the district court considered the comments
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of the parties, the presentence report and the § 3553(a) sentencing factors. The
sentences are not disparate when compared with the sentence his wife received
because he was the organizer and leader of the activity; she was not.
IV.
Figueroa’s convictions and sentences are AFFIRMED. Garcia’s and
Herrera’ convictions are AFFIRMED.
SO ORDERED.
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