United States v. Rafael Ubieta ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12018
________________________
D.C. Docket No. 1:12-cr-20423-KMM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL UBIETA,
Defendant-Appellant.
________________________
No. 13-12020
________________________
D.C. Docket No. 1:12-cr-20423-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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ANGEL BARROSO,
Defendant-Appellant.
_______________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(November 3, 2015)
Before WILLIAM PRYOR, JULIE CARNES, and SILER, ∗ Circuit Judges.
SILER, Circuit Judge:
A jury convicted Rafael Ubieta and Angel Barroso of conspiracy to commit
wire fraud and wire fraud. They now appeal their convictions and sentences. For
the reasons explained below, we affirm.
I.
In 2012, a grand jury indicted Ubieta, Barroso, and several codefendants
with one count of conspiracy to commit wire fraud, in violation of 18 U.S.C.
§ 1349, and five counts of wire fraud, in violation of 18 U.S.C. § 1343. The
indictment alleged that the defendants conspired to purchase residential properties
through the use of straw buyers. The applications for those straw buyers contained
false information, which typically overstated the straw buyer’s income and other
∗
The Honorable. Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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assets. Then, the defendants submitted false mortgage applications and closing
documents, and lenders disbursed the loan proceeds for unapproved uses. The
majority of the defendants pleaded guilty, but Ubieta and Barroso proceeded to
trial and were convicted on all six counts. Ubieta and Barroso now appeal their
convictions and sentences.
Ubieta was an attorney. He served as the president of Bayside Title Services
(Bayside Title) and as the title agent for the real estate transactions in this case. As
a title agent, Ubieta was not supposed to close a property deal if a problem
emerged, such as if a buyer failed to submit a cash-to-close payment, which is an
up-front payment made by the buyer that ensures the buyer has some stake in the
property. However, on several occasions, he released the lenders’ proceeds prior
to receiving the cash-to-close payment. Ubieta was also responsible for verifying
that the seller held title to a property, but on several occasions, he did not.
Barroso was the president of Two B Investment Group (Two B) and helped
identify properties to be purchased by straw buyers. He was also involved in
recruiting straw buyers, two of which are relevant to the issues on appeal.
The first straw buyer, Beatriz Perez, was told by Barroso that Perez’s
estranged father had bequeathed money and property to her. Perez accompanied
Barroso to an attorney’s office where she signed papers that she thought related to
the inheritance, but instead, she signed a sales and purchase agreement for property
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located at 1985 South Ocean Boulevard. The application stated that Perez earned
over $16,000 a month, rather than her actual salary of $1,000 per month.
The lender approved the application and required $7,888 at closing, which
Perez never paid. Nevertheless, Bayside Title dispersed over $500,000 in loan
proceeds at closing––$137,000 of which went to Two B. Perez soon received
mortgage statements, which she could not pay, and the property entered into
foreclosure.
The second relevant straw buyer was Julio Diaz. In 2006, Barroso asked
Diaz if he had a good credit rating and if he would be interested in purchasing a
property that Barroso owned. Diaz agreed to purchase the property, and Barroso
agreed to then rent the property for profit. To close the transaction, Diaz provided
copies of his permanent resident card, his driver’s license, and his social security
card. Diaz signed the purchase and sale agreement and received a $1 million
mortgage. Barroso gave Diaz a $10,000 check at the end of the transaction. Diaz
later pleaded guilty to fraud in regard to that transaction because the loan
application overstated his assets and income.
The 2012 indictment in this case alleged that Diaz agreed to be a straw buyer
for a second time in 2007, but the grand jury did not indict Diaz as a co-
conspirator. At trial, Diaz testified that he did not agree to another real estate
transaction with Barroso. Instead, someone used Diaz’s social security card and
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other personal identifiers to purchase property located at 185 S.W. 7th Street. The
loan application again overstated Diaz’s income and assets, and a loan was secured
in Diaz’s name. The loan contained a signed copy of Diaz’s social security card,
but police investigations later revealed that Diaz’s actual social security card
remained unsigned, lending credence to Diaz’s testimony. The lender approved
the loan, but required a cash-to-close payment of $47,600, which Diaz never paid.
Nevertheless, Bayside Title disbursed over $900,000––$192,300 of which was sent
to Two B.
A government audit of Bayside Title revealed that Bayside Title’s
disbursements of the loan proceeds flowed back to Bayside Title as cash-to-close
payments, or into the accounts of Barroso, Ubieta, and the other co-conspirators.
Barroso and Ubieta raise many issues on appeal. Accordingly, we address
the facts and legal standards applying to each issue in turn.
II.
1. Whether the district court erred when it allowed Ubieta to substitute
counsel without a hearing.
Early in the case, the district court granted the defendants’ initial motion to
continue the original trial date from October 22, 2012 to January 14, 2013. Jose
Quiñon, Ubieta’s original attorney, entered his appearance on October 15, 2012.
On November 9, 2012, codefendant William Hartnett moved to disqualify attorney
Quiñon because he had “engaged in substantial attorney-client protected
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communications with . . . Quiñon.” After the district court ordered the parties to
respond to the motion to disqualify counsel, Ubieta, through attorney Quiñon, filed
a notice to substitute counsel, stating that Ubieta was “actively interviewing with
other criminal defense attorneys in the community.” The district court then denied
as moot Hartnett’s motion to disqualify Quiñon. Ubieta did not advise the court
that he opposed the substitution of counsel or Hartnett’s motion. Indeed, three
days later, Ubieta filed a stipulation of substitution of counsel, introducing Edward
R. Shohat as Ubieta’s new counsel; the stipulation was signed by Quiñon, Shohat,
and Ubieta. Ubieta specifically agreed that he “consent[ed] to being represented in
this matter by . . . Edward R. Shohat.”
Ubieta now claims that the “district court erred in failing to conduct a
Garcia hearing to determine whether Mr. Ubieta’s counsel of choice had a non-
waivable conflict of interest.” Ordinarily, we review a district court’s decision to
disqualify a defendant’s counsel for abuse of discretion. United States v.
Campbell, 491 F.3d 1306, 1310 (11th Cir. 2007). However, the district court never
disqualified Quiñon because Quiñon withdrew from the case without objection by
any party, including Ubieta. Accordingly, to the extent there is anything for us to
review, we must review for plain error. See United States v. Serrapio, 754 F.3d
1312, 1322 (11th Cir. 2014) (noting that arguments not presented to the district
court are reviewed for plain error).
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To resolve a motion to disqualify counsel, a district court typically holds a
hearing to weigh the competing rights to conflict-free representation and counsel of
one’s choice. See In re Paradyne Corp., 803 F.2d 604, 607–08 (11th Cir. 1986).
Ubieta relies on United States v. Garcia, in which the Fifth Circuit remanded the
case to the district court with direction for the “district court to scrupulously
evaluate the insistence of the defendants on the right to privately retained counsel
of their choice even though the district court may discern a conflict of interest in
such representation . . . . The trial court should actively participate in the waiver
decision.” 517 F.2d 272, 277 (5th Cir. 1975) (emphasis added).
However, the record in this case clearly demonstrates that there was no
waiver of Ubieta’s right to conflict-free counsel. Indeed, Ubieta agreed in writing
to his new counsel’s representation. These circumstances do not mandate a Garcia
hearing because Ubieta did not express any interest in retaining Quiñon as his
counsel after learning that there was a possible conflict and that Quiñon sought to
withdraw from the case. The district court did not err by falling to sua sponte
investigate whether Ubieta should retain his original counsel.
Ubieta’s arguments that there may not have been a conflict between him and
his original counsel and that the trial court should have reiterated the trial date so
that Ubieta and counsel could have made a more informed decision are irrelevant
as to whether Ubieta was entitled to a non-requested and unwarranted Garcia
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hearing. Here, there were no competing interests––i.e. counsel of Ubieta’s choice
and conflict-free counsel––because Ubieta agreed to retain new counsel of his
choice who was also free from any possible conflict of interest.
2. Whether the district court abused its discretion when it denied
Ubieta’s motion to continue after he retained new counsel.
Almost a week after Shohat entered his appearance, he filed an unopposed
motion to continue the trial date and cited his recent entry into the case and the
complexity of the case in support of his motion. A week before trial, the court
denied the motion. At a hearing four days before trial, attorney Shohat reiterated
his motion. The district court responded that Shohat knew the trial date prior to his
decision to represent Ubieta, and therefore, the case did not warrant a continuance.
We review a denial of a motion to continue for abuse of discretion. United
States v. Valladares, 544 F.3d 1257, 1261 (11th Cir. 2008) (per curiam).
Ubieta1 argues that the district court abused its discretion when it denied his
motion to continue because “Mr. Ubieta’s counsel of choice was disqualified
approximately 42 days prior to the commencement of trial due to a purported
conflict of interest,” and thus, new counsel did not have enough time to prepare for
trial. As an initial matter, Ubieta’s original counsel was never disqualified.
1
Barroso seeks to adopt Ubieta’s argument that the district court erred by not granting his
request for a continuance. Strangely, Barroso never filed his own motion to continue the trial
after the defendants’ initial motion to continue the original trial date was granted; nor did he join
in Ubieta’s motion. He therefore “has failed to preserve that issue for appellate review.” See
United States v. Schlei, 122 F.3d 944, 983 (11th Cir. 1997).
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Moreover, Attorney Shohat entered his appearance on Ubieta’s behalf roughly
thirty-nine days prior to trial. Finally, Ubieta was arraigned on October 15, 2012,
and the trial began January 14, 2013.
Ubieta relies on United States v. Verderame, 51 F.3d 249 (11th Cir. 1995),
to support his argument. In Verderame, a defendant was arraigned on May 4 and
proceeded to trial on June 7, despite the defendant’s four unopposed motions to
continue. Id. at 250–51. We reasoned that, “[u]nder certain circumstances, denial
of a motion for continuance of trial may vitiate the effect” of a defendant’s Sixth
and Fourteenth Amendment rights to assistance of counsel and due process. Id. at
251. “To prevail on such a claim, a defendant must show that the denial of the
motion for continuance was an abuse of discretion which resulted in specific
substantial prejudice.” Id. (emphasis added). In Verderame, the brief time
window prior to trial rendered defense counsel unable to defend against “two
major drug trafficking conspiracies and the forfeiture of almost all of [the
defendant’s] property including his home” because he only had thirty-four days to
prepare for a trial, in which the government “abruptly shifted focus away from the
cocaine conspiracy a mere four days before trial.” Id. at 251–52. Furthermore,
there was not enough time for the defense “to gather the requisite financial
information, obtain pertinent travel papers, interview witnesses, and review
documents the government continued to provide up to the day of trial.” Id. at 252.
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The government cites United States v. Valladares, 544 F.3d 1257 (11th Cir.
2008) (per curiam), in support of its position. In Valladares, we reiterated that
there “are no mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process. The answer must be found in the circumstances
present in every case.” Id. at 1262 (internal quotation marks omitted). The
defendant must show “specific substantial prejudice,” by identifying “relevant,
non-cumulative evidence that would have been presented if [his] request for a
continuance had been granted.” Id. (internal quotation marks omitted). Although
the defendant’s counsel in Valladares only had thirty-five days after arraignment to
prepare a defense, we concluded that the district court did not err by denying the
motion to continue because:
defense counsel had more than a month to prepare, and . . . the
government had identified all of the documents it intended to use.
Valladares has not pointed to any specific documents or relevant, non-
cumulative evidence she would have presented, nor have we found
anything in the record that would indicate a different result had the
motions been granted.
Id. at 1264 (internal quotation marks omitted).
A nearly identical situation presents itself here, and the district court did not
abuse its discretion when it denied Ubieta’s motion to continue. First, Ubieta “has
not pointed to any specific documents or relevant, non-cumulative evidence [he]
would have presented . . . that would indicate a different result had the motions
been granted.” Id. (internal quotation marks omitted). Ubieta rehashes the
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arguments his attorney asserted before the district court, but he does not cite to a
single piece of evidence he would have unearthed had his motion to continue been
granted. Although the case involved a great number of documents, Ubieta should
have been familiar with many of them. Moreover, the documents would have been
available to attorney Shohat as soon as he entered his appearance, which is in
contrast to the situation in Verderame, in which defense counsel received
documents up to the day of trial. 51 F.3d at 252. Moreover, the government did
not shift focus in this case shortly before trial, as was the case in Verderame. Id. at
251–52.
Finally, Ubieta continues to stress in his brief that the government had over
forty months to investigate and prepare, but his attorney had only “thirty-nine
days” to prepare for trial. But the government will almost always have a longer
timetable to investigate a case, and that comparison alone does not establish
substantial prejudice. Furthermore, as the district court reiterated during the pre-
trial hearing, attorney Shohat was aware of the trial date when he agreed to
represent Ubieta and should not have relied on a continuance of the trial date in
order to be fully prepared for trial.
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3. Whether the district court abused its discretion when it invoked the
rule of sequestration as to one of Ubieta’s witnesses, over his request that she
remain present during all the proceedings.
Shortly before trial began, the government invoked the rule of sequestration.
Ubieta requested that the district court exempt his wife, Sheila Ortiz, from the rule
of sequestration because he “need[ed] her help.” Specifically, Ortiz would assist
with Ubieta’s defense because she was knowledgeable about the documents at
issue and had worked at Bayside Title. Attorney Shohat indicated that, while he
did not anticipate calling her as a witness, he could not “absolutely guarantee it”
because it depended on what occurred during the government’s presentation of its
case. The district court denied Ubieta’s request, and Shohat announced that Ubieta
would forego calling Ortiz as a witness in order to allow her to remain present and
assist during the trial.
“Whether to sequester [a] witness [is] clearly within the sound discretion of
the trial court.” Judisch v. United States, 755 F.2d 823, 827 n.8 (11th Cir. 1985)
(citing United States v. Nash, 649 F.2d 369, 371 (5th Cir. 1981)). We review the
district court’s decision for abuse of discretion. See Nash, 649 F.2d at 371; United
States v. Alvarado, 647 F.2d 537, 540 (5th Cir. 1981).
“At a party’s request, the court must order witnesses excused so that they
cannot hear other witnesses’ testimony.” Fed. R. Evid. 615. Rule 615 excludes
from the rule’s sequestration requirements “a person whose presence a party shows
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to be essential to presenting the party’s claim or defense.” Id. Ubieta argues that
Ortiz fell into this exempted category because, like an agent for the government,
Ortiz had complete knowledge of the documents and could assist counsel during
the trial.
In support of his position, Ubieta relies on United States v. Klaphake, 64
F.3d 435, 437 (8th Cir. 1995), for the proposition that when a party seeks “to
exempt a witness from a sequestration order [he] must show that the witness has
such specialized expertise or intimate knowledge of the facts that the party could
not effectively function in the witness’s absence.” As an initial matter, Klaphake is
not binding on us. Furthermore, Ubieta “has failed to establish that his attorney
could not effectively function in [Ortiz’s] absence” because Ortiz could have
assisted counsel prior to trial. Id. Since Ubieta was the president at Bayside Title,
Ubieta also would have been familiar with Bayside Title documents and should
have been able to assist his attorney without Ortiz’s help.
Furthermore, the purpose of Rule 615 was served by the district court’s
decision to invoke the rule of sequestration as to Ortiz. The rule of sequestration
serves to: (1) exercise a restraint on witnesses attempting to tailor their testimony
to that of earlier witnesses; and (2) “it aids in detecting testimony that is less than
candid.” Geders v. United States, 425 U.S. 80, 87 (1976). Since if Ortiz testified
she would serve as a rebuttal witness, the district court’s decision not to exempt her
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from the rule of sequestration was soundly within in its discretion. No proffer of
her proposed rebuttal testimony appears in the record.
4. Whether the district court abused its discretion when it admitted
evidence of Barroso’s prior conviction.
Diaz testified at trial that he agreed to purchase property from Barroso in
2006. For purchasing the home, Diaz received a $10,000 check from either
Barroso or Barroso’s wife. Although Diaz testified at trial that he was innocent of
any bad intent, he acknowledged that he pleaded guilty to wire fraud in relation to
that transaction because the application for the loan overstated his wealth. Barroso
was also convicted of wire fraud in connection with that transaction.
The superseding indictment in this case alleged that Diaz again “acted as a
straw buyer who allowed his identity and credit to be used in the purchase” of a
second property located at 185 S.W. 7th Street. At trial, Diaz testified that he did
not agree to purchase property located at 185 S.W. 7th Street, and the evidence
indicated that somebody else, likely Barroso, had used Diaz’s identity to purchase
the second property.
Prior to trial, Barroso moved to exclude evidence of his prior conviction for
conspiracy to commit wire fraud in connection with the 2006 Diaz transaction.
The district court denied that motion and concluded that the evidence of Barroso’s
prior guilty plea was “inextricably intertwined with the instant matter.” Moreover,
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the district court concluded the evidence was alternatively appropriate under Rule
404(b) to demonstrate Barroso’s intent, motive, and knowledge.
We review the district court’s evidentiary ruling for abuse of discretion.
United States v. Sterling, 738 F.3d 228, 234 (11th Cir. 2013).
Evidence of a crime “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). “Rule 404(b) does not apply when the other act
evidence is linked in time and circumstances with the charged crime and concerns
the context, motive or setup of the crime, or forms an integral part of the crime, or
is necessary to complete the story of the crime,” and therefore, it is not extrinsic
evidence subject to Rule 404(b). United States v. US Infrastructure, Inc., 576
F.3d 1195, 1210 (11th Cir. 2009).
The district court did not abuse its discretion when it concluded that the
evidence of Barroso’s prior conviction was inextricably intertwined with the
charged crime because the prior crime was both “necessary to complete the story
of the crime” and concerned the context and setup of the crime at issue. See id.
Barroso’s guilty plea established that he had access to Diaz’s confidential
information that Barroso could have used to purchase the second property at 185
S.W. 7th Street in Diaz’s name without Diaz’s consent. See id. at 1211 (affirming
the district court because the evidence of past criminal activity helped prove “the
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chain of events surrounding the charged crimes, including context and setup”);
United States v. Cardenas, 234 F. App’x 892, 897–98 (11th Cir. 2007) (affirming
the district court’s decision to admit evidence of prior bad acts because evidence of
defendant’s prior drug dealings with the witness explained why the defendant
approached the witness to distribute drugs, which was the present charge).
Barroso argues his previous conviction was too different from the crime
charged and, therefore, the evidence was not “inextricably intertwined.” However,
the question is not whether the crimes were similar, but whether the prior bad act
“concerns the context, motive or setup of the [charged] crime, or forms an integral
part of the crime; or is necessary to complete the story of the crime.” US
Infrastructure, Inc., 576 F.3d at 1210. The answer to that question is yes.
Barroso maintains that his “prior conviction was utterly devoid of
permissible, probative value yet its potential to unfairly prejudice the jury was
great.” This amounts to a Fed. R. Evid. 403 argument. Barroso made intent an
issue by pleading not guilty and by arguing at trial that he was simply ignorant of
the illegal conduct. See Edouard, 485 F.3d at 1345 (“A defendant who enters a not
guilty plea makes intent a material issue.” (internal quotation marks omitted)). The
evidence of Barroso’s conviction explained how he likely defrauded Diaz in order
to complete the second fraudulent purchase of 185 S.W. 7th Street. The evidence is
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probative and outweighs any fear of prejudice that naturally comes with the jury’s
learning about a prior crime committed by a defendant.
Finally, the district court limited any prejudice to Barroso when it instructed
the jury that “each defendant is on trial only for the specific crimes charged in the
indictment.” “We presume that a jury follows the court’s instructions.” United
States v. Shenberg, 89 F.3d 1461, 1472 (11th Cir. 1996).
5. Whether the district court committed plain error by failing to exclude
a portion of Beatriz Perez’s testimony as hearsay.
Perez was told by Barroso that her father had died, so she went to an
attorney’s office with Barroso and signed documents without reviewing them,
which resulted in Perez’s unknowingly purchasing property located at 1985 South
Ocean Drive. On redirect examination, the government asked Perez whether her
father had actually died, to which Perez responded: “No, sir. He’s alive.” The
following exchange ensued:
Q: At what point did you find that out?
A: [The case agent] called me and informed me.
Mr. Shohat [Ubieta’s attorney]: Objection. Hearsay.
The Court: Overruled.
Only Barroso appeals this issue, and he did not object or join in Ubieta’s
objection at trial. Accordingly, we review for plain error. See United States v.
Hernandez, 896 F.2d 513, 523 (11th Cir. 1990).
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Hearsay is a statement that “the declarant does not make while testifying at
the current trial . . . offer[ed] . . . to prove the truth of the matter asserted in the
statement.” Fed. R. Evid. 801. The government argues that it did not offer the
testimony to prove the truth of the matter asserted, i.e., that Perez’s father was
alive, and therefore the statement was not hearsay. During cross-examination,
Perez was questioned extensively about whether she had tried to verify that her
father was deceased before signing the papers that resulted in the purchase of the
property at 1985 South Ocean Drive. The government maintains that it sought to
clarify that Perez did not find out that her father was alive until after she had been
duped into purchasing the property.
Barroso argues that there “was no evidence, but for this hearsay as to what
the case agent told the government witness to support the premise that Barroso lied
about the father’s death.” As the government has insisted, the evidence was not
introduced to show that Perez’s father was alive, but to show that she did not know
that her father had not left her an inheritance until after she unwittingly purchased
a house. Thus, whether there was evidence to support that Perez’s father was alive
is not at issue. Accordingly, there was no plain error.
6. Whether Barroso’s counsel represented him under a conflict of
interest and if so, whether the district court erred by failing to grant a mistrial
or otherwise take action.
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At trial, during the cross-examination of Diaz, Barroso’s attorney introduced
a check purportedly signed by Diaz, written to Barroso in the amount of $10,000.
Diaz denied signing the check. The check was dated around the same time as the
initial wire fraud scheme in 2006, in which Barroso and Diaz were both convicted.
Sometime after Barroso’s attorney introduced the check into evidence, the
government notified the court and opposing counsel that the check was a forgery
because neither bank listed on the check could verify that the check was ever
deposited into one account and withdrawn from the other, despite the fact that the
check had a processing stamp. Defense counsel later explained that the check was
attached to a deposition in a related civil case. The government noted that it had
“no doubt that defense counsel was wholly unaware that the document was likely a
forgery when they introduced it into evidence.” The court noted, “I accept that.”
The court also noted that it was not placing blame “at [defense counsel’s] doorstep
or . . . feet or, for that matter even this defendant” but the court was concerned and
the government “should follow up and . . . get to the bottom of it.”
Barroso now urges us to conclude that these events gave rise to a conflict of
interest, and the “district court erred in not declaring a mistrial and severing Mr.
Barroso when an actual conflict of interest arose between Mr. Barroso and his
appointed counsel.” “In order to establish a violation of the Sixth Amendment, a
defendant who raised no objection at trial must demonstrate that an actual conflict
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of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446
U.S. 335, 348 (1980).
“An actual conflict of interest occurs when a lawyer has inconsistent
interests.” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (internal
quotation marks omitted). To prove that an actual conflict hindered defense
counsel’s performance, Barroso “must make a factual showing of inconsistent
interests or point to specific instances in the record to suggest an actual impairment
of his or her interests.” Id. (internal quotation marks omitted. There is no Sixth
Amendment violation “because [of] a speculative or merely hypothetical conflict
of interest.” United States v. Novaton, 271 F.3d 968, 1011 (11th Cir. 2001)
(internal quotation marks omitted). The district court and the prosecution
repeatedly expressed their confidence that defense counsel was unaware of the
inauthenticity of the check, and Barroso fails to point to anything in that record to
delude our confidence that defense counsel had done nothing wrong. To the extent
Barroso implies that a conflict of interest would arise because defense counsel may
not have trusted her client after the forged check was introduced, such an argument
is speculative and unsupported by the evidence.
Finally, Barroso has not cited any instance where a supposed conflict
between him and his attorney adversely affected his attorney’s representation. See
Freund, 165 F.3d at 860 (noting the defendant should identify some “plausible
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alternative defense strategy or tactic that might have been pursued” (internal
quotation marks and alterations omitted)). Barroso maintains that his attorney
failed to further investigate the fraudulent check and did not respond to the
government’s accusations about the check during closing argument. Considering
the fraudulent nature of the check was unearthed during trial and the likely person
responsible for the fraudulent check was Barroso, it is unclear what plausible
alternative strategy counsel should have taken.
7. Whether the district court abused its discretion when it limited each
defendant’s closing argument to twenty minutes.
The district court limited Ubieta’s and Borroso’s closing argument to twenty
minutes each, and the government was permitted thirty minutes total. The
defendants requested forty-five minutes each, but the district court denied their
requests. We review the “period of time to be allotted for attorneys’ closing
arguments” for abuse of discretion. United States v. Ransfer, 749 F.3d 914, 937
(11th Cir. 2014) (internal quotation marks omitted).
Ubieta and Borroso argue that the district court “abused its discretion in
limiting [their] closing argument to 20 minutes [each] given the factual and legal
complexity [of] the case, the number of testifying witnesses and the quantum of
documentary evidence.” This case involved twelve witnesses, eight real estate
transactions, and tens of thousands of documents. However, in Ransfer, we held
that the district court did not abuse its discretion when it limited closing argument
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to twenty minutes under similar circumstances. See id. The Ransfer trial involved
three defendants, sixteen counts of Hobbs Act robbery, a conspiracy charge, and a
charge of using firearms during the commission of a violent crime, and the trial
spanned three days. Id. at 918, 920–21. We reasoned that the defendant in Ransfer
had not presented any arguments that “his attorney was not able to cover in the
twenty minutes allotted for his closing argument. Since [he] failed to identify any
prejudice to his defense, we [did] not find the limitation was an abuse of
discretion.” Id. at 937. We also cited with approval United States v. Sotelo, 97
F.3d 782, 294 (5th Cir. 1996), in which the Fifth Circuit concluded that there was
no abuse of discretion when the district court limited closing arguments to ten
minutes per defendant, and the case involved a twelve-count indictment and forty
witnesses. See Ransfer, 749 F.3d at 937. Likewise, Ubieta and Barroso fail to
identify any prejudice they suffered from the district court’s decision to limit
closing argument to twenty minutes.
Ubieta argues that the same judge in Ransfer tried this case, and this
establishes that twenty minutes was the “judge’s default time for closing
argument.” Even if Ubieta’s unsupported accusation is accurate, nothing in the
defendants’ briefs or record indicates that the limited twenty-minute closing
argument window hindered Ubieta or Barroso from making their arguments to the
jury.
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8. Whether the prosecutor improperly vouched for the government’s
witnesses during closing argument.
During closing argument, Barroso’s counsel reminded the jury that they had
not heard testimony from Kyle Baker and Joel Zaldivar, two codefendants and
mortgage brokers who had pleaded guilty earlier in the case. Defense counsel
continued:
Did you hear from Kyle Baker? Did you hear from Joel Zaldivar?
There’s a reason why you didn’t. Because, believe me, if they had
told [the prosecutor], if they had told him, yeah, Barroso’s the one
who brought me these people, Barroso’s the one who supplied me
with all this information, believe me, ladies and gentlemen, they
would have testified. And you know what? They’re cooperating with
the government. So you know that’s not what they would have said.
And that’s why [the prosecutor] didn’t bring them. He wants you to
make that leap . . . . [T]hey’re cooperating with the government. Do
you think they’re going to risk their hope for a reduction by helping
Mr. Barroso out by telling the truth? These guys were consummate
liars.
In response, the government explained:
First, you heard a lot of talk about Kyle [B]aker and Joel Zaldivar.
You heard the defense constantly mention them during the course of
the trial in an attempt to say they are the only ones who are the crux of
this fraud. These two people were duped. They had nothing to do
with it. All the fraud happened at First Class Mortgage. And [defense
counsel] questioned why the government didn’t call either of those
individuals. [Defense counsel] questioned it. [Defense counsel]
suggested I was going to say she had the right to call them, too, in
response. I’m not. I’m going to point out to you that [defense
counsel] said that these guys were consummate liars, and they were. I
wasn’t going to put the consummate liars on the stand.
[Defense counsel]: Objection, Objection. Self-serving. Is not
evidence.
The Court: Overruled.
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[The prosecutor]: I wasn’t going to put the two people she’s
described as the consummate liars on the stand and ask you to believe
them. I wasn’t going to tie the credibility of the United States of
America to them.
[Defense counsel]: Can I have a standing objection to this
whole line of argument, Judge?
The Court: All right.
[Defense counsel]: I would join in that.
The court: All right.
Barroso argues the district court erred because this amounted to
“impermissible vouching by the government, and reliance on extra-record
evidence, [which] was highly improper and unduly prejudicial.” Essentially,
Barroso claims that the government engaged in backdoor vouching for its
witnesses. That is, since the government told the jury that it would not call
individuals that the defense attorneys had dubbed “consummate liars,” the
government implied that it only called truthful witnesses. Further, Barroso
maintains that this behavior also suggested the existence of additional evidence not
formally before the jury. We review claims of prosecutorial misconduct de novo.
United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).
“A prosecutor’s remarks are improper if they attempt to bolster the
credibility of a witness based on the government’s reputation or through alluding
to evidence not admitted at trial.” United States v. Lopez, 590 F.3d 1238, 1256
(11th Cir. 2009). The question is whether the prosecutor was merely arguing
credibility, which is permissible, or whether he was arguing credibility based on
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the reputation of the government office or on evidence not before the jury. Id.
Additionally, we have “recognized an exception to this prohibition, the so-called
fair response rule, that entitles a prosecutor to respond to arguments advanced by
defense counsel in his or her statement to the jury.” Id. (internal quotation marks
omitted).
The prosecutor’s statements during closing argument were not improper, and
to the extent the remarks pushed the envelope of propriety, the remarks constituted
“a fair response to the defense counsel[s’] comments.” See United States v. Smith,
700 F.2d 627, 634 (11th Cir. 1983) (internal quotation marks omitted). First, the
prosecutor did not “attempt to bolster the credibility of” any witness who testified
at trial; the comments in question related to non-testifying witnesses. See Lopez,
590 F.3d at 1256. Barroso’s back door vouching argument also misses the mark.
Just because the government indicated that it did not want to call witnesses that
defense counsel had labeled “consummate liars” does not mean that all the
witnesses that the government did call were consummate truth tellers.
Moreover, the majority of the prosecutor’s statements indicated that the
prosecutor himself did not believe that the non-testifying witnesses were credible.
The prosecutor’s statement that, “I wasn’t going to tie the credibility of the United
States of America to them,” comes closer to being improper. However, this
statement was “a fair response” to defense counsel’s statements. After all, the
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defendants suggested that the prosecutor did not call these witnesses because he
wanted to ensure that the jury placed blame at Barroso’s feet. Defense counsel
also suggested that the government did not call the witnesses because the
government knew that the witnesses would lie on the stand to try to help
themselves, even though the truth would help Barroso. In short, the prosecutor
was allowed to respond to the defendants’ arguments, and nothing the prosecutor
said during closing argument was improper.
9. Whether the district court abused its discretion when it denied both
defendants’ requests for a good faith jury instruction.
The defendants requested that the district court include a good faith jury
instruction, which the district court denied. The defendants requested the
following jury instruction, taken largely from the Eleventh Circuit Pattern Jury
Instruction:
“Good-faith” is a complete defense to a charge that requires
intent to defraud. A defendant isn’t required to prove good faith. The
Government must prove intent to defraud beyond a reasonable doubt.
An honestly held opinion or an honestly formed belief cannot be
fraudulent intent––even if the opinion or belief is mistaken. This is so
even if the defendant’s belief was not objectively reasonable as long
as he held the belief in good faith. Similarly, evidence of a mistake in
judgment, an error in management, or carelessness can’t establish
fraudulent intent.
But an honest belief that a business venture would ultimately
succeed doesn’t constitute good faith if the Defendant intended to
deceive others by making representations the Defendant knew to be
false or fraudulent.
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See 11th Cir. Pattern Jury Instruction No. 17 (2010).
We review a district court’s decision not to give a requested jury instruction
for abuse of discretion. United States v. Maxwell, 579 F.3d 1282, 1303 (11th Cir.
2009). A district court abuses its discretion if:
(1) the instruction is correct; (2) the court did not address the
substance of the instruction in its charge; and (3) the failure to give
the instruction seriously impaired the defendant’s ability to present an
effective defense. A defendant is entitled to a specific instruction on
his theory of defense, not an abstract or general one.
United States v. Sirang, 70 F.3d 588, 593 (11th Cir. 1995) (internal citation
omitted).
The government concedes that the proposed instruction was a correct
statement of the law. As to the second element, we have previously recognized
that because the district court gave a detailed explanation of intent, “[t]he court’s
instruction to the jury on intent to defraud adequately addressed the concept of
good faith. So, the jury essentially considered the defense of good faith and
rejected it when it found defendants guilty.” United States v. Walker, 26 F.3d 108,
110 (11th Cir. 1994) (per curiam). Similarly, the district court instructed the jury
that Ubieta and Barroso had to act with “the intent to defraud,” which required “the
specific intent to deceive or cheat someone, usually for personal financial gain or
to cause financial loss to someone else.” Concerning the conspiracy charge, the
district court cautioned that in order to find a defendant guilty, the jury must find
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that “the defendant knew of the unlawful purpose of the plan and willfully joined
it,” which required the defendant to act “voluntarily and purposefully with the
intent to do something the law forbids; that is, with the bad purpose to disobey or
disregard the law.” Accordingly, the jury instructions encompassed the substance
of the good faith instruction because the instructions emphasized intent and the
government’s burden.
Finally, the defendants have not shown how the failure to give the good faith
instruction seriously impaired their ability to present an effective defense, which is
generally required to show that the district court abused its discretion. See Sirang,
70 F.3d at 593. Ubieta and Barroso argued, albeit unsuccessfully, that they had no
intent to defraud. Although they were involved in various transactions, they
argued that they did not intend to commit wire fraud, and thus, the failure to give
the good faith instruction did not inhibit the defendants from arguing the substance
of the good faith instruction. The defendants presented their theory, and the jury
rejected it. The district court did not abuse its discretion.
10. Whether a constructive amendment of the indictment occurred at
trial.
The indictment alleged that Diaz “acted as a straw buyer who allowed his
identity and credit to be used in the purchase of 185 S.W. 7th Street.” At trial, Diaz
testified that, although he had pleaded guilty to wire fraud resulting from a
purchase of a home in 2006, a case in which Barroso also pleaded guilty, he knew
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nothing about the purchase of the property purchased in his name at 185 S.W. 7th
Street, which occurred the following year. The government’s theory at trial was
that Barroso used Diaz’s personal information without Diaz’s consent to purchase
the property at 185 S.W. 7th Street. Barroso argues that change amounted to
constructive amendment of the indictment.
We have noted:
Two types of problems can arise as a result of a trial court’s deviation
from an indictment. When a defendant is convicted of charges not
included in the indictment, an amendment of the indictment has
occurred. If, however, the evidence produced at trial differs from
what is alleged in the indictment, then a variance has occurred. The
distinction between an amendment and a variance is important in that
an amendment is per se reversible error, while a variance requires the
defendant to show that his rights were substantially prejudiced by the
variance in order to be entitled to a reversal.
United States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990) (emphasis added). “A
constructive amendment to the indictment occurs where the jury instructions so
modify the elements of the offense charged that the defendant may have been
convicted on a ground not alleged by the grand jury’s indictment.” United States
v. Sanders, 668 F.3d 1298, 1309 (11th Cir. 2012) (quoting United States v. Starke,
62 F.3d 1374, 1380 (11th Cir. 1995)). Barroso does not argue that the jury
instructions modified the elements of the offenses charged. Although an
“indictment may [also] be amended as a result of . . . a prosecutor’s statements,”
United States v. Castro, 89 F.3d 1443, 1453 (11th Cir. 1996), a constructive
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amendment occurs only “when the essential elements of the offense contained in
the indictment are altered to broaden the possible bases for conviction beyond what
is contained in the indictment,” Keller, 916 F.2d at 634. Regardless of whether
Diaz was a consenting straw buyer who agreed to purchase the property at 185 S.W.
7th Street––as alleged in the indictment––or a victim of identity theft––as he and
the government argued at trial––the essential elements of wire fraud and
conspiracy were unchanged. Accordingly, there was no constructive amendment
and no error.
To the extent Barroso unwittingly raises a variance argument, his claim also
fails. A variance “occurs when the facts proved at trial deviate from the facts
contained in the indictment but the essential elements of the offense are the same.”
Id. However, to prove reversible error from a variance, Barroso must “show that
his rights were substantially prejudiced by the variance.” Id. at 633. Barroso has
not argued that any prejudice resulted from the change in facts in the indictment
from those presented at trial.
11. Whether the district court abused its discretion when it denied
Barroso’s motions for expert assistance, trial transcripts, and a continuance of
his sentencing hearing.
Prior to sentencing, the government requested that the probation office apply
an identity theft enhancement, pursuant to USSG § 2B1.1(b)(11)(C)(i), when
calculating Barroso’s Guidelines range. The basis of the enhancement was that
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Barroso used Diaz’s social security card and driver’s license to purchase the
property located at 185 S.W. 7th Street without Diaz’s knowledge. The evidence at
trial showed that Diaz’s social security card had not been signed when it was used
in the 2006 transaction, but the copy used to purchase the 185 S.W. 7th Street
property was signed.2
The probation office also recommended imposing an obstruction of justice
enhancement, pursuant to USSG § 3C1.1, based on the introduction of the
fraudulent check into evidence at trial. This fraudulent nature of the check was
based on the government’s discovery that neither bank listed on the check could
verify that it was deposited or withdrawn from any account.
In reaction to the probation office’s recommendations, Barroso requested
$1,600 to hire a handwriting expert that could verify whether the signature on the
check and social security card belonged to Diaz. Barroso also requested costs for
the trial transcripts. Additionally, he requested a thirty-day continuance of the
sentencing hearing. The district court denied his requests.
We review the district court’s decision to deny an indigent defendant’s
application for funding and its decision to deny a motion to continue sentencing
under the abuse of discretion standard. United States v. Hernandez, 743 F.3d 812,
814 (11th Cir. 2014) (per curiam); Valladares, 544 F.3d at 1261.
2
The evidence at trial also showed that Diaz’s social security card, not the copy, remained
unsigned.
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The district court did not err when it denied Barroso funds to retain a
handwriting expert and trial transcripts. Even if the signature on the fraudulent
check matched Diaz’s signature, it would not save Barroso from the identity-theft
enhancement. This is so because Diaz testified he did not authorize Barroso to use
his identity to purchase the property at 185 S.W. 7th Street. Even if the signature
belonged to Diaz (or was a copy of his signature), the court could still believe
Diaz’s testimony––that Barroso used it without his permission. The identity theft
enhancement can apply when “[a] defendant obtains an individual’s name and
social security number from a source . . . and obtains a bank loan in that
individual’s name.” USSG § 2B1.1 cmt. n.9(C)(ii)(I) (2012).3
Similarly, Barroso argues that the handwriting expert was necessary to
address the applicability of the obstruction of justice enhancement. The
obstruction of justice enhancement can apply when a defendant “produc[es] . . . a
false, altered, or counterfeit document or record during a[] . . . judicial
proceeding.” USSG § 3C1.1 cmt. n.4(C). On cross-examination of Diaz, Barroso
introduced into evidence a $10,000 check, purportedly signed by Diaz and
endorsed by Barroso. The banks listed on the stamp of the check confirmed that
the check did not correspond to any transaction, despite the fact that the stamp
indicated the check had been processed. Regardless of whether Diaz’s signature
3
As of November 1, 2013, note 9 was renumbered to note 10.
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was authentic, the check itself was forged and Barroso introduced it at trial,
warranting the enhancement.
With regard to both the requests for transcripts and that the court continue
sentencing, Barroso has not shown he was prejudiced by the denial of those
requests. See Valladares, 544 F.3d at 1265 (affirming the denial of a continuance
because the defendant did not identify “any specific documents or other non-
cumulative evidence that would indicate a different outcome if [the] motion[] had
been granted”). Barroso has not identified how he could have benefited at
sentencing based on receiving a continuance or the trial transcripts. Instead, he
continues to reiterate the need to “demonstrate that Diaz’s signature on the relevant
documents concerning the S.W. 7th Street transaction were not forgeries nor was
his signature on the $10,000 check,” but regardless, the jury and the district court
believed Diaz when he said he did not authorize the transaction.
Finally, Barroso again alleges error arising from whether Diaz was acting as
a straw buyer (as was alleged in the indictment) or whether he was a victim of
identity theft (as was presented at trial) during the purchase of the 185 S.W. 7th
Street property. He contends that he was deprived of his Fifth Amendment due
process rights when the government based its case and sentencing on these
“inconsistent theories.” Barroso raised this argument in issue ten, and we have
rejected his argument there. Barroso has not alleged the type of “essential”
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inconsistency that would support a Fifth Amendment claim because the
inconsistencies he points to did not affect the elements of the charged offenses.
See United States v. Dickerson, 248 F.3d 1036, 1043–44 (11th Cir. 2001).
12. Whether the district court committed procedural error when it
calculated each defendant’s advisory Guidelines range.
The district court calculated Barroso’s advisory Guidelines range to be 210
to 262 months, with an offense level of thirty-six and a criminal history category of
II. It calculated Ubieta’s Guidelines range to be 210 to 262 months, with an
offense level of thirty-seven and a criminal history category of I. Barroso and
Ubieta raise a number of alleged procedural errors as to these calculations.
A. Loss Amount
Pursuant to USSG § 2B1.1.(b), the district court was charged with
determining the loss amount associated with each defendant’s offenses. The
Guidelines “require only a reasonable estimate of loss.” United States v.
Barrington, 648 F.3d 1178, 1198 (11th Cir. 2011). Here, the losses equaled the
amount the lenders suffered after the straw buyers defaulted on their mortgages.
The losses were offset by “the amount the victim has recovered at the time of
sentencing from disposition of the collateral,” here the amount the lenders
recovered after selling the properties. USSG § 2B1.1 cmt. n.3(E)(ii). Under
USSG § 2B1.1, the enhancement level is tied to the loss amount attributable to the
offense.
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i. Barroso
The probation office held Barroso accountable for $5.26 million in losses,
which yielded an eighteen-level increase to his offense level under USSG
§ 2B1.1(b)(1). Any loss that exceeds $2.5 million up to and including $7 million
triggers an eighteen-level increase. Id. Barroso argues on appeal that the
“government failed to show a loss amount exceeding $2,500,000.” He first argues
that the loss amount was overstated because the bank demolished one of the homes
on a property involved in the conspiracy, which caused the offset value of the
property to be lower than it would have been with the home intact. However, the
district court accounted for this problem, and the change in Barroso’s loss amount
did not affect his increase under USSG § 2B1.1. Barroso also argues that the
government’s methods of calculation were unreliable, but he cites nothing in
support of this argument. The court established the outstanding value of each loan
and offset that value by proceeds recovered by the lender upon the resale of each
property.
ii. Ubieta
The government calculated $8,188,676.13 in losses attributable to Ubieta’s
criminal offenses. Under USSG § 2B1.1, any loss greater than $7 million but less
than $20 million results in a twenty-level increase. The court reduced the
government’s loss calculation by $276,000 due to the fact that one of the banks
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demolished a home on a piece of property and sold the property for land value
only. This resulted in a loss calculation of $7,912,676.13. Ubieta argues other
errors occurred that, if corrected, would push the loss figure below $7 million and
would therefore yield a eighteen-level increase, rather than the twenty-level
increase that he received.
Ubieta first argues that the loss amount attributable to him is flawed because
Citi Mortgage sold a property located at Alesio Avenue for less money than it
could have, rendering an artificially low offset value with regard to that property.
Citi Mortgage sold the property at Alesio Avenue for $243,200. Three months
later, the Alesio Avenue property sold for $420,000. Ubieta urges us to reduce the
loss attributable to him by $176,800, the difference between Citi Mortgage’s sale
of the property and the price the property brought three months later. When
collateral is involved, the Guidelines provide that loss amounts should be offset by
“the amount the victim has recovered at the time of sentencing from disposition of
the collateral.” USSG § 2B1.1 cmt. n.3(E)(ii). Ubieta fails to explain why the
district court should not have followed the general rule. He has not argued that
Citi Mortgage acted in bad faith, nor has he provided any information relating to
the subsequent sale. Accordingly, the district court did not err.
Ubieta also argues that the district court erred when it included losses on two
properties––one on 3740 Charles Terrace and another on 227 Jefferson Drive.
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According to Ubieta, the government’s theory at trial was that Ubieta was
primarily involved in the conspiracy by prematurely releasing closing funds so that
the straw buyer or co-conspirators could use those funds to make cash-to-close
payments on the properties and by issuing title commitments falsely stating that the
sellers owned the property as of the date of the sale when they did not. He argues
that because he did not play either of those roles in the purchase of the properties at
Charles Terrace and Jefferson Drive, the losses should not be attributable to him.
However, in conspiracy cases, the defendant’s Guidelines range is based on
“all reasonably foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity . . . .” USSG § 1B1.3(a)(1)(B). Here, the
district court concluded that the Charles Terrace and Jefferson Drive properties
involved “conduct that was reasonably foreseeable as part of the conspiracy and
therefore those amounts should be included for calculating the amount of loss.”
We review that decision for clear error. See United States v. Valarezo-Orobio, 635
F.3d 1261, 1264 (11th Cir. 2011).
The district court’s decision was not clearly erroneous. A straw buyer was
used to purchase the Charles Terrace property, and Ubieta released $135,150 in
loan proceeds to a company involved with another co-conspirator. A straw buyer
also purchased the Jefferson Drive property, and Ubieta prepared the HUD-1
Settlement that overstated the amount the sellers actually received. The banks
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suffered losses on both properties. Regardless of the exact role Ubieta played, the
loss was reasonably foreseeable.
Ubieta encourages us to conclude that the district court erred in two other
respects––by including taxes and insurance amounts in the loss calculation and by
overstating a loss amount to a property located at Leonardo Street. The total
amount of losses in taxes and insurance was $238,672.26. Ubieta argues that the
loss calculation overstated the bank’s loss on the Leonardo Street property by
$561,000.00. 4 Assuming without deciding that it was error to include these losses,
the total loss attributed to Ubieta would still exceed the seven million dollar
threshold to trigger the twenty-level increase the district court applied.
B. Identity Theft Enhancement
Section 2B1.1(b)(11)(C)(i) of the Guidelines authorizes a two-level
enhancement where the offense involved “the unauthorized transfer or use of any
means of identification unlawfully to produce or obtain any other means of
identification . . . .” Based on the evidence presented at trial, the district court
concluded that the defendants used Diaz’s identification without his permission for
the purchase of 185 S.W. 7th Street, and therefore, the identity theft enhancement
applied. We review “purely legal questions de novo . . . and factual findings for
4
Combining these losses yields a total of $799,672.26. Subtracting that amount from the total
loss amount applied to Ubieta ($7,912,676.13) equals $7,113,003.87, still well over the seven
million dollar threshold.
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clear error, and in most cases, a district court’s application of the guidelines to the
facts with due deference.” United States v. Rothenberg, 610 F.3d 621, 624 (11th
Cir. 2010).
i. Barroso
First, Barroso argues that because Diaz and Barroso were convicted of wire
fraud in 2006, Diaz somehow joined a broader conspiracy and, therefore, he
consented to the use of his identity in 2007. However, Diaz testified at trial that he
did not authorize the use of his identity in the 2007 transaction. The government
also introduced Diaz’s unsigned, original social security card. The purchaser of
the property of 185 S.W. 7th Street used a signed copy of Diaz’s social security
card, lending credence to Diaz’s testimony. Moreover, Diaz was never indicted in
the present case.
Barroso next argues that the use of Diaz’s information to obtain a bank loan
does not constitute “the unauthorized transfer or use of any means of identification
unlawfully to produce or obtain other means of identification” to trigger the
enhancement under USSG § 2B1.1(b)(11)(C)(i). However, “the account number
of the bank loan is the other means of identification that [was] obtained
unlawfully.” USSG § 2B1.1 cmt. n.9(C)(ii)(I) (2012); see also United States v.
Williams, 355 F.3d 893, 899–900 (6th Cir. 2003).
ii. Ubieta
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According to Ubieta, because the evidence from trial suggested that Barroso
used Diaz’s information from the 2006 transaction to obtain a bank loan in 2007,
only Barroso should receive the identity theft enhancement. However, Ubieta’s
role in the Diaz transaction was extensive, and the district court did not err in
applying the identity theft enhancement.
Most notably, the government presented evidence at trial that Ubieta used
personal funds to satisfy Diaz’s cash-to-close payment. Further, the government
presented evidence that Ubieta instructed another codefendant to wire loan
proceeds back to Two B and to Ubieta via his mother-in-law’s account. Ubieta
also signed false title commitment letters. This evidence establishes that Ubieta
likely knew that Diaz’s identity was used without Diaz’s consent to obtain the
mortgage loan, but even assuming Ubieta was unaware of the exact nature of the
identity theft, it was reasonably foreseeable that a co-conspirator, here Barroso,
would unlawfully obtain and use Diaz’s identity to further the conspiracy. See
USSG § 1B1.3(a)(1)(B). Accordingly, there was no error.
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C. Role Enhancements
At the sentencing hearing, the district court applied a role enhancement to
both Barroso and Ubieta. Because the application of a leadership enhancement is a
factual finding, we review for clear error. See United States v. Barrington, 648
F.3d 1178, 1200 (11th Cir. 2011).
i. Barroso
The district court concluded Barroso “was a manager or supervisor (but not
an organizer or leader) and the criminal activity involved five or more
participants,” which resulted in a three-level increase under USSG § 3B1.1(b).
Barroso maintains that because the individuals he recruited were not “criminal
participants,” the district court erred by applying the enhancement.
Although the evidence presented at trial established that Barroso
manipulated straw buyers or simply used the straw buyer’s identity––rendering
those straw buyers non-participants in the conspiracy–– the evidence also showed
that he managed two or three other participants in the conspiracy. A “defendant
need only manage or supervise one other participant for the enhancement to
apply.” United States v. Zepeta, 389 F. App’x 907, 909 (11th Cir. 2010) (per
curiam). Here, the district court could reasonably conclude that Barroso
supervised his wife, his mother-in-law, and an unidentified woman whom he paid
to provide a false verification of employment during the Perez transaction. After
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all, Barroso’s mother-in-law served as a straw buyer on one of the properties, and
Barroso’s company, Two B, received a portion of the loan proceeds from that deal.
Barroso’s wife also participated by diverting loan proceeds to satisfy the straw
buyer’s cash-to-close payment.
ii. Ubieta
The district court concluded that Ubieta was “an organizer or leader of
criminal activity,” which resulted in a four-level increase under USSG § 3B1.1(a).
Ubieta argues that the district court misapplied the factors courts should consider
under USSG § 3B1.1. The factors the court should consider “include the exercise
of decision making authority, the nature of 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.” USSG § 3B1.1 cmt. n.4; see also United States v.
Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009).
The district court did not err when it concluded that Ubieta was a leader or
organizer of the enterprise. Ubieta acted as the closing agent on all of the
properties identified in the superseding indictment. Moreover, he repeatedly
released the lenders’ proceeds prior to receiving the buyer’s cash-to-close
payments, and the co-conspirators used those funds to satisfy the straw buyer’s
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cash-to-close payments. Thus, his participation in the offense was significant and
without it, the scope of the fraud would have been narrower. The government
established at trial that Ubieta exercised control over codefendant William Hartnett
by repeatedly giving him instructions without any explanation, which Hartnett
obeyed. Given how integral Ubieta’s involvement was to the conspiracy’s success,
Ubieta’s arguments––that he neither recruited accomplices nor claimed a large
share of the profits––does not render the application of the leadership enhancement
clear error. Moreover, Ubieta’s argument that other codefendants received more
money from the fraud and maintained decision-making authority, does not save
him from the enhancement. “There can, of course, be more than one person who
qualifies as a leader or organizer of a criminal association or conspiracy.” USSG
§ 3B1.1 cmt. n. 4.
D. Barroso’s Remaining Claims
i. Sophisticated Means
The district court applied a two-level enhancement because Barroso’s
offense “involved sophisticated means.” USSG § 2B1.1(b)(10)(C). We have
affirmed the application of the sophisticated means enhancement under very
similar circumstances. See United States v. Rodriguez, 751 F.3d 1244, 1258 (11th
Cir. 2014) (affirming the enhancement when the defendant “participated in a
scheme that utilized straw buyers, fraudulent mortgage documents, fake title
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corporations, as well as the improper diversion of the U.S. mail”). Barroso
recruited and duped straw buyers, received early release funds, and used those
funds to make the straw buyer’s cash-to-close payments; the scheme involved false
mortgage loan applications and other fraudulent mortgage documents. We
therefore uphold the district court’s sophisticated means enhancement.
ii. Gross Receipts
The district court imposed a two-level enhancement because Barroso
“derived more than $1,000,000 in gross receipts from one or more financial
institutions as a result of the offense.” USSG § 2B1.1(b)(15)(A) (2012). The
funds Barroso received were funneled primarily through his company, Two B. On
appeal, Barroso correctly states the law; the Guidelines only contemplate the funds
Barroso individually received, not the funds he jointly obtained with co-
conspirators. See USSG § 2B1.1 cmt n.11(A) (2012). He claims for the first time
on appeal that his wife was a co-owner of Two B, and therefore, the district court
should not have applied the gross receipts enhancement based on the money
funneled through Two B. However, Barroso failed to object to the presentence
investigation report, which specifically identifies Barroso as “the sole owner of
Two B Investments Group.” “Without objection and in the absence of manifest
injustice,” we treat conclusions contained in a presentence investigation report as
binding. United States v. Norris, 50 F.3d 959, 962 (11th Cir. 1995). Moreover,
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Barroso has pointed to no evidence in the record that would establish that Barroso
and his wife jointly owned Two B. Accordingly, there was no clear error or
manifest injustice.
iii. Obstruction of Justice
The Guidelines impose a two-level enhancement for obstructing justice
during the “prosecution . . . of the instant offense of conviction . . . .” USSG
§ 3C1.1. The district court applied this enhancement to Barroso based on defense
counsel’s introduction of the fraudulent check at trial to impeach Diaz. We review
for clear error. United States v. Williams, 627 F.3d 839, 844 (11th Cir. 2010).
Barroso argues that the government failed to present any evidence
connecting him––as opposed to his attorneys alone––to the introduction of the
forged check. However, the district court reasonably inferred that Barroso, rather
than his attorneys alone, introduced the check at trial. Barroso’s signature appears
on the endorsement line of the check, and he has never disputed the authenticity of
his signature. Moreover, the check first emerged in a civil suit brought by the
lender against Diaz. According to Diaz’s testimony, Barroso arrived unexpectedly
at Barroso’s workplace and escorted Diaz to the civil deposition, during which the
check was introduced. Barroso also had hired a lawyer to represent Diaz.
Barroso’s involvement in the civil suit, to which he was not a party, is also
probative of his knowledge of the check. Finally, the check’s relevance on its face
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was not obvious, as it simply was written from Diaz to Barroso in the amount of
$10,000. Without any input from Barroso, it is almost incomprehensible why
Barroso’s attorneys would have introduced the check at trial. Therefore, the
district court did not clearly err.
iv. Criminal History Score
The Guidelines assign points to any “prior sentence” imposed on a
defendant, and based on the total number of points a defendant has, he is placed
into one of six criminal history categories. See USSG § 4A1.1. Here, based on
Barroso’s 2006 conviction in which he and Diaz pleaded guilty to wire fraud and
conspiracy to commit wire fraud, the probation office determined that Barroso
should have a criminal history category of II. Barroso objected, but the district
court overruled his objection.
Barroso argues that his 2006 conviction was “part of the instant offense,”
and therefore should not have been included in determining his criminal history
category. See USSG § 4A1.2(a)(1). The district court properly included Barroso’s
2006 “prior sentence” in calculating Barroso’s criminal history category. USSG
§§ 4A1.1 & 4A1.2. “The term ‘prior sentence’ means any sentence previously
imposed upon adjudication of guilt . . . for conduct not part of the instant offense.”
USSG § 4A1.2(a)(1). To determine whether Barroso’s 2006 sentence was “part of
the instant offense,” we look at USSG § 1B1.3. See USSG § 4A1.2 cmt. n.1.
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Conduct is part of the instant office when it “occurred during the commission of
the offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.” USSG
§ 1B1.3(a)(1).
Here, the conduct underlying Barroso’s first conviction occurred in 2006,
but the conduct in the instant case occurred between 2007 and 2008. Moreover,
the only common actor in both offenses was Barroso. Finally, the instant
conspiracy was much broader in degree and scope than the 2006 transaction. The
2006 transaction did not involve stolen identities, the premature release of loan
proceeds, or the issuance of false title commitments, as was the case here.
Accordingly, the district court did not err.
Barroso also argues that the district court erred when it declined to give him
a downward departure, but we lack jurisdiction to review the court’s decision on
that issue. See United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005)
(per curiam).
E. Abuse of Position of Trust Regarding Ubieta
Ubieta “has abandoned this issue by failing to develop any argument in his
opening brief.” United States v. Woods, 684 F.3d 1045, 1064 n.23 (11th Cir. 2012)
(per curiam). His one-sentence, conclusory statement that the “enhancement for
abuse of position of trust pursuant to [USSG] § 3B1.3 was not factually supported
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by the record and improper as a matter of law” provides us with no guidance, and
we decline to manufacture arguments on his behalf.
13. Whether the defendants’ sentences are substantively unreasonable.
The defendants next challenge their sentences as substantively unreasonable.
The court sentenced Barroso to 210 months, the bottom of his Guidelines range,
and it sentenced Ubieta to 240 months, a sentence in the middle of his Guidelines
range. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Thompson, 702 F.3d 604, 606–07 (11th Cir. 2012).
“Although we do not automatically presume a sentence within the guidelines range
is reasonable, we ordinarily expect such a sentence to be reasonable.” United
States v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015) (citing United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008)).
A. Barroso
Barroso does not truly make a substantive reasonableness argument and to
the extent he does, it is linked to his criminal history category, which we have
addressed and rejected. Moreover, the district court adequately addressed the
factors and considered the totality of the circumstances. Therefore, the district
court did not err by declining to vary below the Guidelines range.
B. Ubieta
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Ubieta argues that the court failed to properly apply the factors under 18
U.S.C. § 3553(a) and, as a result, his sentence was substantively unreasonable. We
disagree. As the district court reasoned, Ubieta “expressed no remorse for his
criminal behavior, and has admitted to no wrongdoing.” The district court also
cited the sophistication of the offense, the extended period of time the crimes
occurred, and the large number of people involved in order to make the conspiracy
successful. The district further noted the importance of deterrence, reasoning that
probation would not deter “would-be-white-collar criminal[s].”
Ubieta maintains that the district court glossed over his charitable
contributions and good deeds that positively impacted his community. However,
the district court properly declined to give a downward variance because the
evidence at trial showed that Ubieta was a crucial part of a widespread fraud that
impacted multiple victims. Ubieta’s other argument––that the court overstated his
role in the fraud––is not demonstrated in the record and is, therefore, without
merit.
Ubieta also argues that the “sentence imposed . . . created an unwarranted
disparity between Mr. Ubieta’s sentence and the sentence the district court
imposed on other individuals with similar records and convicted of the same or
similar conduct in this case.” Specifically, he maintains that the sentences of two
mortgage brokers––who received forty-eight months and seventy-eight months
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respectively––generated this disparity. However, Ubieta was the title agent and
never accepted responsibility, even after trial. Accordingly, “there is no
unwarranted disparity when a cooperating defendant pleads guilty and receives a
lesser sentence than a defendant who proceeds to trial.” United States v. Mateos,
623 F.3d 1350, 1367 (11th Cir. 2010) (quoting United States v. Langston, 590 F.3d
1226, 1237 (11th Cir. 2009)).
CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of the district court.
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