United States v. Ravindranauth Roopnarine ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15025
________________________
D.C. Docket No. 2:10-cr-14096-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAVINDRANAUTH ROOPNARINE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(December 1, 2017)
Before JORDAN and JILL PRYOR, Circuit Judges, and DUFFEY, * District Judge.
*
Honorable William S. Duffey, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
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PER CURIAM:
Ravindranauth Roopnarine (“Appellant”) appeals his convictions and
sentence after a jury found him guilty of one count of conspiring to commit mail
fraud and wire fraud, in violation of 18 U.S.C. § 1349, one count of wire fraud, in
violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of
18 U.S.C. § 1341. Appellant asserts several issues on appeal, which we address in
turn. After reviewing the extensive trial record and with the benefit of oral
argument, we affirm Appellant’s conviction and sentence.
I. BACKGROUND
In 2006, Appellant developed a scheme to acquire more than 181 residential
properties in Florida using “straw buyers” to secure mortgages. The scheme
included Appellant directing other scheme participants to incorporate three Florida
corporations for use in facilitating purchases of the homes: (1) DKR Florida;
(2) Vero Lakes New Home Center; and (3) Century Star Realty Group/Sunrise
New Homes.
Appellant’s scheme generally involved a “straw buyer” purchasing a home
from a homebuilder who agreed with Appellant to sell homes for a price below the
home’s fair market value. Appellant gave the straw buyer $10,000 to serve as the
home purchaser. The straw buyer applied to a mortgage lender for a loan to
purchase the home. The straw buyer applied for a loan in the amount of the fair
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market value purchase price of the home, not the discounted price for which the
homebuilder agreed with Appellant to sell the home. The straw buyer used his
own credit information to secure the loan.
Appellant received that portion of the mortgage loan represented by the
difference between the discounted home purchase price and the amount of the loan
based on the home’s fair market price. Appellant promised the straw buyers that
he would make the mortgage loan payments with monies he received in renting the
homes. Appellant also told straw buyers that when Appellant sold a home for a
price greater than the purchase price mortgage, he would split the excess sale funds
with the straw buyer. Mortgage lenders were not told of these financial
arrangements to which Appellant and his straw buyers agreed.
Soon after the straw purchases commenced, Appellant had difficulty
covering mortgage payments because he could not rent the homes and because he
used the loan proceeds for personal expenses. To sustain the mortgages he
sometimes used loan proceeds from new loans to make payments on existing
mortgages. Of the 181 homes that Appellant convinced straw buyers to purchase,
all but seven were foreclosed on by mortgage lenders.
In 2008, Ikramul Azam Hosein, one of Appellant’s straw buyers, and his
wife, reported Appellant to the FBI after Appellant stopped making mortgage
payments on Hosein’s home and the bank foreclosed on the property.
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On December 9, 2010, a federal grand jury in the Southern District of
Florida returned an 11-count indictment against Appellant, which included charges
for wire fraud, under 18 U.S.C. § 1343, mail fraud, under 18 U.S.C. § 1341,
conspiracy to commit wire fraud, mail fraud, and bank fraud, under
18 U.S.C. § 1349, money laundering, under 18 U.S.C. § 1956(a), and conspiracy to
commit money laundering, under 18 U.S.C. § 1956(h). On March 7, 2016,
Appellant’s jury trial began. Upon the government’s motion, the District Court
dismissed certain of the counts. The jury ultimately convicted Appellant of mail
fraud, wire fraud, and conspiring to commit mail fraud and wire fraud. On
July 14, 2016, the District Court sentenced Appellant to 262 months imprisonment,
and ordered him to pay more than $9 million in restitution.
II. STANDARDS OF REVIEW
“We review challenges to the sufficiency of the evidence in criminal cases
de novo, viewing the evidence in the light most favorable to the government.”
United States v. Dominguez, 661 F.3d 1051, 1061 (11th Cir. 2011); see also
United States v. Williams, 527 F.3d 1235, 1244 (11th Cir. 2008). The district
court’s “evidentiary rulings” are reviewed “for a clear abuse of discretion.” United
States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). Jury instructions challenged
in the district court are reviewed “de novo to determine whether the instructions
misstated the law or misled the jury to the prejudice of the objecting party.”
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United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012) (quoting United
States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009)). We review de novo the
interpretation and application of the Sentencing Guidelines, but we review the
underlying factual findings for clear error. United States v. Rodriguez, 732 F.3d
1299, 1305 (11th Cir. 2013).
III. DISCUSSION
Appellant challenges his conviction on the following grounds: (1) the
evidence was insufficient to support his conviction; (2) the district court erred in its
evidentiary rulings, including (i) limiting defense counsel’s cross-examination of
government witness Jose Cadena and (ii) allowing an undercover government
agent to testify without disclosing his true name; (3) the district court erred by
giving a Pinkerton and deliberate ignorance instruction; and (4) the district court
wrongfully calculated the loss amount and gross receipts under the sentencing
guidelines.
A.
Appellant challenges whether the evidence was sufficient to support his
substantive convictions of mail fraud and wire fraud and his conviction of
conspiracy to commit mail fraud and wire fraud. At issue is whether a reasonable
fact-finder could have determined that the evidence proved the defendant’s guilt
beyond a reasonable doubt. United States v. Langford, 647 F.3d 1309, 1319 (11th
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Cir. 2011); see also United States v. Smith, 459 F.3d 1276, 1286 (11th Cir. 2006).
We will not disturb the verdict unless no reasonable trier of fact could find guilt
beyond a reasonable doubt. United States v. Lee, 603 F.3d 904, 912 (11th Cir.
2010). “[C]ircumstantial evidence may be used to establish an element of a crime,
even if the jury could draw more than one reasonable inference from the
circumstantial evidence, and in judging sufficiency of the evidence, we apply the
same standard whether the evidence is direct or circumstantial.” Langford,
647 F.3d at 1319.
To establish that Appellant committed wire fraud, the government must
prove that he: (1) intentionally participated in a scheme to defraud; and (2) used
wire communications to further that scheme. 18 U.S.C. § 1343; see Belt v. United
States, 868 F.2d 1208, 1211 (11th Cir. 1989). In order to establish that Appellant
committed mail fraud, the government must prove that he: (1) intentionally
participated in a scheme to defraud; and (2) used the mails to further that scheme.
18 U.S.C. § 1341; see United States v. Wingate, 997 F.2d 1429, 1432 (11th Cir.
1993). Because the elements of wire fraud are analogous to those of mail fraud,
the statutes generally are interpreted similarly. Belt, 868 F.2d at 1211 (“The wire
fraud statute tracks the language of the mail fraud statute . . . [and] [t]he statutes
are given a similar construction and are subject to the same substantive analysis.”);
see also Langford, 647 F.3d at 1320.
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1. Wire Fraud
Appellant’s wire fraud conviction involved the transfer of $171,000, on or
about October 12, 2007, from Washington Mutual Bank to an escrow account for
the purchase of a property at 373 N.E. 26th Place, Unit 102, Homestead, Florida
(the “26th Place Property”). The record reveals that Ikramul Azam Hosein
(“Hosein”), one of Appellant’s straw buyers, testified at trial that he signed a
fraudulent mortgage loan application for the property. Hosein admitted that he
signed the loan documents for the purchase of the property, that his gross monthly
income of $15,000 stated on the documents was false, and that he did not pay the
amount stated on the documents for the closing of the property. Hosein also
identified documents establishing that the principal amount loaned for the property
was $171,000, and that the loan proceeds were wired from Washington Mutual
Bank to an escrow agent in Florida.
The record includes testimony from Washington Mutual Bank underwriter
Jose Cadena, who testified during trial that he reviewed the loan file for the
26th Place Property, and would have considered “[i]ncome, credit, assets, the
collateral, and the down payment” in making the underwriting determination. Tr.
Transcript at 108-09 (Doc. 360). The testimony included the following exchange
regarding the materiality of who provided the down payment for the property:
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Q: So if an underwriter learned that the down payment was not
coming from the borrower, would that be significant and
material?
A: Yes, it would.
Q: Why is that?
A: The borrower has nothing in the transaction, no risk. The bank
is putting up all the risk and it would have been potentially
ineligible if we knew where it came from. Gifts are allowed
from family members, but not from nonfamily members.
...
That way they have something to lose. Right now if they have
nothing in the transaction, they’ve really lost nothing if there is
a loss on the property and the bank takes all the risk.
Q: And if an underwriter were to learn that the source of a down
payment was not coming from the borrower but from
somewhere or someone else, another company for example,
would that be material?
A: Yes.
Tr. Transcript at 112-13 (Doc. 360). The record shows the evidence was sufficient
to support Appellant’s wire fraud conviction, and we find that a reasonable fact-
finder could have determined that the evidence proved Appellant’s guilt beyond a
reasonable doubt.
2. Mail Fraud
Appellant’s mail fraud conviction, according to the government’s
indictment, is based on a mailing, on or about October 12, 2007, of a warranty
deed and mortgage for a property located at 2730 N.E. 4th Street, Unit 205,
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Bldg. 19, Homestead, Florida (the “4th Street Property”). Hosein, the straw buyer,
testified about this property. 1
Appellant challenges the sufficiency of the evidence to support the mailing
element of the offense, claiming there is no evidence the mail was used to transmit
documents received by the Miami-Dade Office of the County Recorder, as alleged
in the indictment. The government has consistently argued that loan instruments
and checks were sent from Ascendant Title Services, Inc. (“Ascendant”) to the
Miami-Dade Office of the County Recorder by mail.
The indictment reads, in relevant part, “Miami-Dade County clerk received
from Ascendant Title Services, Inc., via U.P.S. a warranty deed and mortgage.”
Indictment at 14 (Doc. 7). The government, during trial, in its brief, and in oral
argument, relied upon Government Exhibit 6 (“GX6”), and specifically
Government Exhibit 6A (“GX6A”), to support the mailing element of the charged
conduct. GX6, according to the government’s exhibit list filed with the district
court, is the Countrywide Bank Loan File for the property, and includes the
following three documents: (1) “Miami-Dade Clerk of Court’s certification of
origin of fax confirming mailing with print screens of clerk’s computer system and
1
Hosein admitted that he did not pay the closing costs as stated in the property’s loan
documents, did not attend the closing, did not receive a key to the house, and did not make
mortgage payments on the home.
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recorded documents (composite)” (GX6A); (2) “HUD-1 Buyer Settlement
Statement” (“GX6B”); and (3) “Uniform Residential Loan Application”
(“GX6C”). Tr. Ex. List at 2 (Doc. 318).
During proceedings relating to Appellant’s motions for judgment of
acquittal, the government argued:
Count 6, Your Honor, the entire file first of all for that home
transaction, that real estate transaction, is in evidence. Part of what’s
in evidence, and I believe it has been attached to an exhibit that was
talked about in court is a proof of mailing, 6A.
...
[T]here has been direct evidence and proof about a mailing. . . . We
didn’t bring in a witness to say – it’s true, we didn’t bring in someone
to say solely the mail was used on this count, this is how, here’s the
letter, but that exhibit is in evidence, it’s already been admitted, and
we’re going to refer to it in our closing argument and point the jury to
it.
Supp. Tr. Transcript at 5-6 (Doc. 377). In its appellate brief, the government
argued, “The documents further reflected that they had been ‘received by U.S.
mail’ by the Miami-Dade County Clerk of the Circuit and County Courts.” In oral
argument, the government reiterated its position, stating:
What was mailed was . . . some form of deed to the county appraiser’s
office. That deed had . . . the HUD-1 and the Uniform Residential
Loan Application attached to it, so it was clear from, I think it was a
fax or a letter to the County Court saying this is the documentation in
connection with this property and it says on it “received by mail.”
And of course, like I said, Hosein authenticated those documents. He
said, “These are the documents that I originated in connection with
this transaction.”
See Oral Argument at 17:17- 17:57.
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Upon a careful review of the documents sent from Ascendant, and the record
generally, we cannot conclude that the documents were mailed to the Clerk of
Court, rather than some other transmission means. Neither the documents sent by
Ascendant, the remaining exhibits, nor the trial testimony provide evidence that the
Miami-Dade Clerk of Court received the warranty deed and mortgage for the
4th Street Property “via U.S. mail.” There is no record evidence that documents
were “received” by the Clerk of Court by mail and there is no evidence from which
a mailing can be inferred.
What GX6 does include is a Uniform Residential Loan Application for the
4th Street Property indicating that the application, signed by Hosein, a purchaser
recruited by Appellant, was received by mail on July 17, 2007 by Kamla
Seecharan. Ms. Seecharan, a co-conspirator who pleaded guilty in this case, was
co-owner, together with Appellant, of Century Star Mortgage Group, Inc.
Seecharan is represented as conducting the Hosein loan application interview.
Hosein’s testimony appears to corroborate this fact. The following exchange
occurred during trial:
A: And I was presented with closing document for a second
property.
Q: Do you recall who gave those to you?
A: Kamla.
Q: And how was that delivered to you?
A: I believe by DHL package.
Tr. Transcript at 75 (Doc. 360). These facts provide substantial evidence from
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which a reasonable jury could conclude that Appellant caused the mails to be used,
and that the mailing of the application and loan document was a step in furtherance
of the fraudulent scheme, in this case the transaction involving the 4th Street
Property. See Pereira v. United States, 347 U.S. 1, 8-9 (1954) (“Where one does
an act with knowledge that the use of the mails will follow in the ordinary course
of business, or where such use can reasonably be foreseen, even though not
actually intended, then he ‘causes' the mails to be used.”); see also United States v.
Ross, 131 F.3d 970, 985 (11th Cir. 1997). The fact that “DHL” was the means
used to mail the documents, as opposed to the U.S. mail, is irrelevant. United
States v. Silvestri, 409 F.3d 1311, n.14 (11th Cir. 2005) (“In 1994, Congress
expanded the provisions of § 1341to include any ‘matter whatever to be sent or
delivered by any private or commercial interstate carrier.’ Deliveries by DHL are
covered under the expanded definition.”) (citation omitted).
We further find that any variance between the alleged proof of mailing in the
indictment and the evidence presented at trial is not grounds for reversal. “The
standard of review for whether there is a material variance between the allegations
in the indictment and the facts established at trial is twofold: First, whether a
material variance did occur, and second, whether the defendant suffered substantial
prejudice as a result.” United States v. Lander, 668 F.3d 1289, 1295 (11th Cir.
2012); United States v. Dennis, 237 F.3d 1295, 1300 (11th Cir. 2001).
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“A ‘variance’ occurs when the evidence at trial establishes facts materially
different from those alleged in the indictment.” United States v. Caporale, 806
F.2d 1487, 1499 (11th Cir. 1986). Substantial prejudice is present if “the proof at
trial differed so greatly from the charges that [the defendant] was unfairly surprised
and was unable to prepare an adequate defense.” United States v. Richardson, 532
F.3d 1279, 1286-87 (11th Cir. 2008).
We conclude that it is not a material variance that Appellant’s co-conspirator
Kamla Seecharan, and not the Miami-Dade Clerk of Court, was the person who
received by mail documents by which the fraudulent loan was processed. See, e.g.,
United States v. Roberts, 308 F.3d 1147, 1156 (11th Cir. 2002) (holding there was
no material variance where the date of the offense cited in the indictment was a
year after the crime was committed, and the proof at trial showed that the offense
was committed on the earlier date, because the defendant had notice of the charges
and there was no possibility that he would be prosecuted again for the same
offense); Thompson v. Nagle, 118 F.3d 1442, 1453 (11th Cir. 1997) (holding there
was no material variance where evidence suggested cause of death differed from
indicted charge). Likewise, there is not a material variance that the testimony at
trial established that DHL, rather than U.P.S., was used. Id. Here, Appellant was
clearly on notice that he was charged with fraud in connection with the purchase of
and loan for the 4th Street Property, and that the mails were used to process this
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fraudulent transaction. The mailing that occurred in this transaction involved the
transmission of documents related to the loan, and evidence of the mailing of the
document was sent to and received by the Miami-Dade Clerk of Court. The
variance, even if there was one, was not material.
Even if the difference in proof of mailing constituted a material variance, we
find that it did not prejudice Appellant. See Caporale, 806 F.2d at 1500 (no
prejudice where the variance “did not alter the crime charged, the requisite
elements of proof or the appropriate defenses in a significant manner”); see also
United States v. White, 349 F. App’x 381, 382 (11th Cir. 2009) (finding material
variance did not prejudice the defendant where the indictment incorrectly stated
one of the seventeen characters of a VIN number); United States v. Teague, 12 F.
App’x 759, 766 (10th Cir. 2001) (“Therefore, we hold that despite the technically
imperfect address given in the indictment to indicate where the crimes occurred,
the indictment plainly provided [the defendant] with sufficient detail and adequate
notice of the pending charges and evidence against him.”); cf. Lander, 668 F.3d at
1295-96 (finding a material variance where “the Government trie[d] to rely on a
scheme to defraud entirely different from the one alleged in the indictment to
support” the defendant’s conviction resulting in prejudice to the defendant because
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“the indictment failed to put [the defendant] on notice of the crime for which he
was convicted”).2
The indictment was sufficient to put Appellant on notice of the crime for
which he was charged and convicted. It identified the substantive crime, the
approximate date on which the crime allegedly occurred, the facts underlying the
fraudulent scheme, and the property’s address. That the mailing was proved by a
means other than what was articulated in the indictment, which was nonetheless
included in the documents received by the Miami-Dade Clerk of Court, did not
prevent Appellant from preparing his defense. The government’s exhibits were
provided to Appellant, and GX6C clearly shows that a mailing—although different
from the one described in the indictment—occurred.
We conclude that there was sufficient evidence to support, and a reasonable
jury could conclude, that Appellant was guilty beyond a reasonable doubt of mail
fraud, including that Appellant caused the mails to be used to further the fraudulent
purchase of this property.
2. The Conspiracy
To sustain a conspiracy conviction under 18 U.S.C. § 1349, the government
must prove the following elements: “(1) agreement between two or more persons
2
We recognize that Federal Appendix decisions are unpublished, and thus not binding on
the panel. We note, however, that they are helpful in explaining the legal principles that apply.
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to achieve an unlawful objective; (2) knowing and voluntary participation in that
agreement by the defendant; and (3) an overt act in furtherance of the agreement.”
United States v. Broughton, 689 F.3d 1260, 1277 (11th Cir. 2012); see also United
States v. Smith, 934 F.2d 270, 275 (11th Cir. 1991). Although an agreement may
be shown by direct evidence, “[t]he very nature of conspiracy frequently requires
that [it] be proved by inferences from the conduct of the alleged participants or
from circumstantial evidence of a scheme.” United States v. Toll, 804 F.3d 1344,
1355 (11th Cir. 2015).
The record is fraught with evidence, both direct and circumstantial, that
would permit a reasonable jury to conclude that Appellant participated in a
conspiracy to commit mail and wire fraud. Appellant recruited his co-conspirators
to incorporate real estate companies that he controlled, but on which his identity
was not disclosed. He directed his co-conspirators how to use the real estate
companies to further his scheme. He recruited straw buyers by providing funds to
make down payments on the purchases, promising to pay the payment obligations
under the mortgage loans, and promising a share of the profits generated upon sale
of the properties. Testimony from Hosein and other witnesses established that
Appellant orchestrated, directed, and managed the scheme. Hamewattie
Balkissoon and Kamla Seecharan, Appellant’s co-conspirators, testified at trial that
the corporations that processed the fraudulent mortgage loan applications and the
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bank accounts in which the loan proceeds were deposited were controlled by
Appellant. Appellant managed and controlled the companies, found the buyers,
and instructed his co-conspirators how to process the loan applications and pay the
mortgages. Seecharan, for example, stated:
Q: Did [Appellant] have any directions for you as to where and
when to use his name?
A: Everybody knew it was Ravi’s company. I mean, there was – it
was never hidden. He didn’t hide the fact – Ravi tells
everybody everything. So usually everybody that knows Ravi
knows that he owns the real estate and mortgage, I’m the
broker.
Tr. Transcript at 188 (Doc. 359). Seecharan testified about Appellant’s extensive
involvement in the mortgage application process, including the review and revision
of applications. She testified:
Q: So how regularly did you keep him informed of the details of
these transactions?
A: Every day we talked. Whatever is going on on a daily basis in
the company, he’s fully aware.
Q: Did you show him documents?
A: Yes, he have seen documents.
Q: What kind of documents?
A: He has seen the HUDS. . . .
...
Q: Did he expect you to share every detail with him?
A: Yes. If you don’t, he gets angry like you’re hiding something
from him.
Tr. Transcript at 190 (Doc. 359).
We conclude that the evidence was sufficient to support Appellant’s
conspiracy conviction, and the underlying substantive wire and mail fraud
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convictions. The record includes testimony, loan applications, and other
documents that would permit a reasonable jury to conclude, beyond a reasonable
doubt, that Appellant committed these offenses.3
B.
Appellant next challenges two of the district court’s evidentiary rulings.
First, Appellant argues the district court wrongly limited defense counsel’s
cross-examination of government witness Jose Cadena. Second, Appellant
contends the district court improperly permitted the government’s undercover
witness to testify without disclosing his real name.
1. Testimony of Jose Cadena
At trial, the government offered Jose Cadena, an underwriter for Washington
Mutual Bank, to testify about the review of Hosein’s mortgage loan applications
and “what would be material to a Washington Mutual underwriter.” Tr. Transcript
at 109 (Doc. 360). Appellant argues that the district court improperly restricted his
cross-examination of Cadena. The following exchange between defense counsel
and the district court took place:
Defense counsel: Judge, if you’re not going to let me cross-examine
on materiality, then I am finished.
3
We reach this conclusion having found, as discussed below, that the district court did not
err in the evidentiary rulings and instructions to the jury challenged by Appellant.
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Court: No, I will not let you cross-examine on the alleged
failure of the bank to do what you think they
should have done. That, I think the Eleventh
Circuit has spoken on. So govern yourself
accordingly.
Tr. Transcript at 143 (Doc. 360). Defense counsel repeatedly attempted to ask
Cadena questions suggesting the bank was negligent in not investigating the
income claimed by mortgage applicants. The district court sustained the
government’s objection to the questions. The district court noted, during
Appellant’s cross-examination of Cadena, that it would instruct the jury that “any
negligence on the part of the bank is not a defense to this case.” See, e.g., United
States v. Svete, 556 F.3d 1157, 1165 (11th Cir. 2009) (“A perpetrator of fraud is no
less guilty of fraud because his victim is also guilty of negligence.”). The district
court was correct that negligence on the part of the bank has no bearing on whether
a misrepresentation is material. See id. Therefore, the district court did not err in
restricting cross-examination of Cadena on alleged shortcomings of Washington
Mutual’s application review process.
A careful review of the trial record also shows that defense counsel in fact
extensively cross-examined Cadena. The transcript of defense counsel’s cross-
examination continues for approximately ten pages, and it supports that defense
counsel asked Cadena about matters such as verification of facts disclosed in the
loan applications, how the HUD-1 is prepared, why Cadena considered certain
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items material, and whether underwriters rely on brokers for the submission of
accurate information.
We conclude that the district court did not err in restricting defense
counsel’s cross-examination, and it properly limited defense counsel’s cross-
examination when defense counsel attempted to imply that the negligence of the
financial institutions in some way negated her client’s intent or culpability.
2. Testimony of Government’s Undercover Witness
Appellant next contends that the district court improperly permitted the
government’s undercover witness to testify without disclosing his real name. The
following exchange occurred at the trial immediately before the undercover
witness testified:
Defense counsel: Judge, I just think on the record on – may not be in
the presence of the jury, but these witnesses need to
be identified by their true identities and names for
the record. I think that we’ve agreed, because the
government has security concerns since they are
undercover agents, that they can use their
undercover names in front of the jury. But I still
think we need to put on the record who they are.
...
My understanding was they were going to put on
the record, outside the jury, and that’s why I
suggested sidebar, the true name of their witness
and that we would agree he could use his
undercover name in front of the jury. But you
need to identify who this witness is so that in the
future, if something happens, and let’s say this
man gets arrested for lying or something comes out
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that, you know, he fabricated all these things, I
don’t know, it’s happened.
Court: You have a continuing responsibility to the court,
as officers of the court, to let me know if something
like that were to happen.
Government: Correct, Your Honor. Under Giglio and just generally.
Tr. Transcript at 162-63 (Doc. 360).
The record shows that defense counsel agreed to permit the use of the
witness’s alias during trial. The record also shows that defense counsel objected to
the government’s withholding of the witness’s true identity because of some future
need for the identity of the witness to be known. Defense counsel did not argue or
assert an objection based on some claimed prejudice as a result of withholding the
witness’s identity. 4 The record shows further that defense counsel conducted a
thorough cross-examination of the undercover witness. Appellant waived his
objection to the witness’s use of an alias at the trial. Appellant agreed to the use of
an alias for security reasons, and he cannot now claim this agreed-upon use was
error.
On appeal, Appellant contends that the district court erred by allowing the
witness to testify under an alias before the jury. The argument is waived because
4
Appellant’s counsel made a number of objections during the witness’s direct
examination, such as relevancy and that a question called for speculation. The district ruled on
each of these. She did not object based on the witness’s use of an alias or on the grounds that
allowing the witness to use an alias impacted her cross-examination.
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Appellant’s agreement to the use of the alias also constituted an invitation to the
district court to allow the use of the alias. “It 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. Ross, 131 F.3d 970, 988 (11th Cir.1997) (internal
quotations omitted). “The doctrine of invited error is implicated when a party
induces or invites the district court into making an error.” 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.” Ford ex rel.
Estate of Ford v. Garcia, 289 F.3d 1283, 1294 (11th Cir. 2002) (internal quotations
omitted).
Although defense counsel objected to the district court’s refusal to have the
undercover agent state his true name at sidebar, Appellant has not shown that he
was prejudiced by the denial of this specific request. United States v. Pepe, 747
F.2d 632, 656 & n.33 (11th Cir. 1984) (requiring showing of “specific prejudice
caused by [] nondisclosure”); see also Alford v. United States, 282 U.S. 687, 692
(1931) (“Prejudice ensues from a denial of the opportunity to place the witness in
his proper setting and put the weight of his testimony and his credibility to a test,
without which the jury cannot fairly appraise them.”). Appellant’s only stated
concern was that something may happen “in the future” affecting the agent’s
credibility. But these hypothetical future events would not have been presented to
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the jury and Appellant made no argument that he was unable to effectively “place a
witness in the proper setting” before the jury. United States v. Alston, 460 F.2d
48, 52 (5th Cir. 1972); see also United States v. Gutierrez de Lopez, 761 F.3d
1123, 1148-49 (10th Cir. 2014) (harmless error where “questioning allowed [the
defendant] an opportunity to undermine [the witness’s] credibility despite her
inability to ask about their true identities”). To the contrary, the record reflects a
thorough cross-examination.
Appellant agreed to the use of an alias and in doing so waived any objection
to it. To the extent it was error to allow the alias to be used before the jury, the
claimed error was invited by Appellant. We conclude that Appellant has not
shown he suffered any prejudice by the refusal to disclose the agent’s undercover
alias name to the defense.
C.
Appellant argues that the district court erred in giving a Pinkerton 5 and a
deliberate ignorance instruction in the district court’s charge.
We review jury instructions “de novo to determine whether the instructions
misstated the law or misled the jury to the prejudice of the objecting party.”
United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013); see also United
States v. Clay, 832 F.3d 1259, 1310 (11th Cir. 2016). We will not reverse a
5
Pinkerton v. United States, 328 U.S. 640 (1946).
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conviction based on a jury instruction challenge “unless we are ‘left with a
substantial and ineradicable doubt as to whether the jury was properly guided in its
deliberations.’” Gibson, 708 F.3d at 1275. “When the jury instructions, taken
together, accurately express the law applicable to the case without confusing or
prejudicing the jury, there is no reason for reversal even though isolated clauses
may, in fact, be confusing, technically imperfect, or otherwise subject to criticism.”
Id. The Supreme Court has observed that “in reviewing jury instructions, our task
is also to view the charge itself as part of the whole trial,” noting that “[o]ften
isolated statements taken from the charge, seemingly prejudicial on their face, are
not so when considered in the context of the entire record of the trial.” United
States v. Park, 421 U.S. 658, 674-75 (1975) (internal quotations omitted).
1. The Pinkerton Instruction
Appellant contends that the district court erred when it instructed that, if the
jury found Appellant guilty of conspiracy, the jury could find him guilty of the
substantive offenses of mail fraud and wire fraud based on the acts of his co-
conspirators. The district court, upon the government’s request, and after
overruling Appellant’s objections at a charge conference, gave the following
instruction to the jury:
During a conspiracy, if a conspirator commits a crime to advance the
conspiracy toward its goals, then in some cases a co-conspirator may
be guilty of the crime even through the co-conspirator did not
participate directly in the crime. So, regarding Counts [Three] and
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[Six], if you have first found the defendant guilty of Count [One], you
may also find the defendant guilty of any of the crimes charged in
Counts [Three] and [Six] even though the defendant did not
personally participate in the crime. To do so, you must find beyond a
reasonable doubt:
One, during the conspiracy, a conspirator committed the additional
crime charged to further the conspiracy’s purpose.
Two, the defendant was a knowing and willful member of the
conspiracy when that crime was committed.
And three, it was reasonably foreseeable that a co-conspirator would
commit the crime as a consequence of the conspiracy.
Tr. Transcript at 12-13 (Doc. 362). Appellant does not argue that this instruction
was defective. Instead, he contends that the district court erred because (1) “[t]he
evidence did not support giving a Pinkerton instruction”; and (2) the instruction
“undermined the whole defense theory of the case—that [Appellant] never had
intent to defraud.”
As we conclude above, the evidence was more than sufficient to support
Appellant’s conspiracy conviction. We find that the instructions issued by the
district court in this case correctly and adequately stated the relevant law that
applied, including that Appellant could be convicted for reasonably foreseeable
co-conspirator criminal conduct engaged in to advance the conspiracy towards the
“goals” of the conspiracy. This specifically includes the criminal conduct in which
straw buyers engaged. The record here supports that it was appropriate to give the
Pinkerton charge.
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2. The Deliberate Ignorance Instruction
Appellant next argues that the district court erred in giving a deliberate
ignorance instruction. 6 The district court gave the following instruction to the jury:
If a defendant’s knowledge of a fact is an essential part of the crime,
it’s enough that the defendant was aware of a high probability that the
fact existed, unless the defendant actually believed that the fact did
not exist.
Tr. Transcript at 14 (Doc. 362). Appellant does not object on the ground that the
charge is incorrect. He only objects on the ground that the instruction prejudiced
him because it “basically negate[d] intent,” which in turn allegedly lowered the
government’s burden to prove his intent beyond a reasonable doubt.
The trial court instructed the jury on approximately six occasions that the
government was required to prove each element of each charge against the
defendant and that proof beyond a reasonable doubt was required. The court
specifically instructed the jury that the government was required to prove intent to
defraud beyond a reasonable doubt. The record shows the jury was plainly
instructed that it was the government’s burden to prove intent beyond a reasonable
doubt. The record also shows there was sufficient evidence to support giving the
instruction.
6
This instruction is sometimes referred to as a “deliberate indifference” instruction.
“Ignorance” is the more appropriate term, and it is used in this Opinion.
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We have stated that a “deliberate ignorance instruction is appropriate only
when there is evidence in the record ‘showing the defendant purposely contrived to
avoid learning the truth.’” United States v. Stone, 9 F.3d 934, 937 (11th Cir.
1993), cert. denied, 513 U.S. 833 (1994) (citing United States v. Barbee, 968 F.2d
1026, 1033 (10th Cir. 1992)). We have also cautioned “against instructing juries
on deliberate ignorance when the evidence only points to either actual knowledge
or no knowledge on the part of the defendant.” Id. These general principles are
difficult to apply in a fraud as complex as the one at issue here, where the defense
was that Appellant’s conduct was simply a commercial venture gone awry because
of market conditions. The record supports the trial court’s decision to give the
instruction.
Appellant does not challenge the accuracy of the instruction, but objects that
it relieved the government of proving Appellant’s intent to commit fraud and to
enter into the conspiracy. 7 The instruction, as given, stated: “If a defendant’s
knowledge of a fact is an essential part of the crime, it’s enough that the defendant
was aware of a high probability that the fact existed.” Tr. Transcript at 14 (Doc.
362). There was, in this case, an adequate factual basis for the district court to give
the deliberate ignorance instruction from which the inference could be drawn that
7
The instruction given was based on Special Instruction No. 8 from the Eleventh Circuit
Pattern Jury Instructions in Criminal Cases.
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Appellant engaged in purposeful conduct to avoid knowing essential facts of the
crime. The defense in this case was that Appellant engaged in ordinary
commercial transactions and did not intend to defraud lenders. He argued,
including in this appeal, that the facts showed he engaged in regular, ordinary real
estate transactions. The government argued that Appellant was fully aware of the
fraud in which he engaged, but also sought to disguise his involvement in certain
key transactions by instructing others not to disclose his association with the
scheme.
The evidence supports that Appellant attempted to make all or part of the
scheme appear to be legitimate. Appellant sought to insulate himself from
knowing the particulars of specific scheme elements, knowing there was a high
probability that the conduct of his co-conspirators was fraudulent, and that he
could be held criminally accountable for it.
For example, Appellant recruited and facilitated straw borrowers to apply for
loans. Appellant was not listed on loan applications or documents and the
evidence shows that Appellant dispatched straw borrowers to obtain purchase
money mortgages. Additionally, he directed his co-conspirators to leave his name
off of documents incorporating his real estate companies. This evidence would
allow a jury to infer that Appellant, who was knowledgeable of the lending
process, purposely avoided knowing the details of the straw purchases, because not
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knowing allowed him to maintain his defense that there was no fraud in the
borrowing activities. A jury in this case was entitled to decide if Appellant chose
not to know of the details of the fraudulent scheme. These facts, coupled with
Appellant’s defense, were an appropriate basis to allow the jury to consider
whether Appellant chose to be deliberately ignorant of essential elements of the
crime—here, the conduct of straw borrowers.
What we have said before is true in this case—a deliberate ignorance
instruction is “properly given” where “the evidence supports both actual
knowledge and deliberate ignorance.” United States v. Arias, 984 F.2d 1139, 1143
(11th Cir. 1993) (internal quotations omitted). Viewing the charge and the record
as a whole, we find no reversible error in the court’s instructions to the jury. 8
D.
Appellant argues that the district court improperly calculated loss amount
and gross receipts in determining the Sentencing Guidelines, and, as a result,
imposed an inappropriate sentence.
“[A] district court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38,
8
We have noted before that even where there was no basis for a deliberate ignorance
instruction, it was harmless error beyond reasonable doubt to give it where the evidence of actual
knowledge independently supported a conviction beyond a reasonable doubt. Griffin v. United
States, 502 U.S. 46, 58 (1991); Stone, 9 F.3d at 937. Here, there was more than sufficient
evidence of actual knowledge.
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49 (2007); see also United States v. Campbell, 765 F.3d 1291, 1298 (11th Cir.
2014). If “a defendant challenges one of the factual bases of his sentence . . . the
Government has the burden of establishing the disputed fact by a preponderance of
the evidence.” Rodriguez, 732 F.3d at 1305. The district court must then, using
the Guidelines range as the benchmark, weigh all of the factors to determine
whether they support the sentence requested by a party. Gall, 552 U.S. at 49-50.
1. Loss Amount
For crimes involving fraud or deceit, such as this one, the Sentencing
Guidelines increase the offense level based on the amount of the loss.
U.S.S.G. § 2B1.1(b) (2015); see also United States v. Wright, 862 F.3d 1265, 1274
(11th Cir. 2017). The “loss is the greater of actual loss or intended loss.”
U.S.S.G. § 2B1.1 cmt. n.3(A). On July 14, 2016, the district court sentenced
Appellant to 262 months imprisonment, followed by 60 days of supervised release,
and ordered him to pay more than $9 million in restitution. The district court
determined, without specifically adopting a particular loss amount, that the
government established a loss amount of more than $25 million, which requires
22 levels to be added to the base level offense. The district court considered,
however, the impact of sentencing Appellant pursuant to the next lowest category,
which involves a loss amount of more than $9.5 million but not more than
$25 million. This loss amount category requires adding 20 levels to the base level
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offense. The high end of the applicable advisory guideline for a loss amount of
less than $25 million and the low end of the applicable advisory guideline for a
loss amount of more than $25 million resulted in the same recommended
sentence—262 months. As a result, the district court stated the following:
If I went below the $25 million, it would be my intention to sentence
the defendant at the high end of the guidelines; and if I go above that,
it would be my intention to sentence him at the low end of the
guidelines. So I don’t think it has any practical difference in this
matter. I don’t think that you have proven sufficient to get it below
the $25 million. But even if you did, it would still be at the very high
end below $25 million. And so I’m ruling against you on your
objection, not on everything, but on the fact that it doesn’t really make
any difference because it’s still over $25 million, and if it were to slip
below $25 million, it would not make any difference to me in my
evaluation of the sentencing to Mr. Roopnarine.
Tr. Transcript at 47 (Doc. 354).
The district court thus concluded that it would impose the same sentence
regardless of the specific loss amount, which was disputed and discussed at length
during the sentencing proceedings on July 14, 2016. “A Sentencing Guidelines
miscalculation is harmless if the district court would have imposed the same
sentence without the error.” United States v. Barner, 572 F.3d 1239, 1248 (11th
Cir. 2009); see also United States v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2006)
(“Notwithstanding the district court’s error, we are not required to vacate the
sentence and remand the case if the court would have likely sentenced [the
defendant] in the same way without the error.”). We conclude, without
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determining the exact loss amount at issue here, that the district court did not
clearly err in sentencing Appellant under the guideline for a loss amount of more
than $25 million and less than $65 million because he would have nevertheless
sentenced Appellant to 262 months.
2. Gross Receipts
The Sentencing Guidelines also require the district court to enhance a
defendant’s base offense by two levels if “the defendant derived more than
$1,000,000 in gross receipts from one or more financial institutions as a result of
the offense.” U.S.S.G. § 2B1.1(b)(16)(A). Gross receipts include “all property,
real or personal, tangible or intangible, which is obtained directly or indirectly” as
a result of the offense. U.S.S.G. § 2B1.1, cmt. n.12(B).
Appellant argues on appeal that the evidence did not support the district
court’s finding that he personally received more than $1 million in gross receipts.
The following exchange between the government and the district court occurred at
the sentencing proceedings on July 14, 2016:
Government: First and foremost, we have Government Trial
Exhibit 1, which is the summary chart presented
by the defendant to the undercover FBI agents
laying out in detail the operation and scope of his
scheme in which the central column was entitled
Robby’s Take and aggregated over $6 and a half
million at the bottom of the column. In addition,
there was preponderance of the evidence in the
form of testimony by the witnesses at trial
describing how all proceeds were considered to
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belong to him and over a million dollars were at
various times in the aggregate transferred to him
and his wife.
Court: My recollection of the testimony is that your client
claimed far more than a million dollars. Now, he
might have been lying because, you know what,
fraudsters do lie sometimes. But I think in this
case he was lying to his detriment. He clearly
indicated that he was receiving far more than a
million dollars.
Tr. Transcript at 46 (Doc. 354). The district court heard testimony on the issue,
considered it, and concluded that it was reasonable to estimate from the testimony
and evidence presented during the trial that Appellant took home more than
$1 million in gross receipts. We conclude that the district court did not clearly err
in reaching its determination.
IV. CONCLUSION
For all of the foregoing reasons, we affirm Appellant’s conviction and
sentence.
33