United States v. Joseph DeRosa , 544 F. App'x 830 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14548
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D.C. Docket No. 0:10-cr-60194-JIC-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH DEROSA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
________________________
(October 22, 2013)
Before MARTIN, JORDAN and SUHRHEINRICH, ∗ Circuit Judges.
*
Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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PER CURIAM:
After a jury trial, Joseph Derosa was convicted of mail and wire fraud, 18
U.S.C. §§ 1341 and 1343, and making false statements within the jurisdiction of a
federal agency, id. § 1001, based on his alleged participation in a mortgage fraud
conspiracy. 1 At trial the government presented evidence that a group of
individuals, including Derosa, participated in a mortgage fraud conspiracy led by
Joseph Guaracino. Guaracino was a police officer with Derosa and some of the
other co-defendants before he resigned to work in real estate. The government
claimed that Derosa lent Guaracino his name and financial information to borrow
money and purchase five properties.
At trial Derosa’s main defense was that he did not have sufficient knowledge
of the fraudulent aspects of the mortgage transactions to support his conviction.
The evidence showed that other people falsified the preliminary loan documents,
including by inflating Derosa’s salary and savings, omitting information about
other real estate transactions, and signing Derosa’s name without his permission or
knowledge. On the other hand, the government presented evidence that Derosa
personally attended the closings and signed the closing documents, which included
the false information the mortgage brokers submitted in the preliminary
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Derosa was also charged with conspiracy to commit these offenses, pursuant to 18 U.S.C. §
1349, but the jury found him not guilty on that count.
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documents. Derosa’s main defense was that he did not know, or notice, that what
he was signing was fraudulent.
Derosa appeals his conviction arguing that there was insufficient evidence to
show his knowledge and intent to participate in the mortgage fraud, or to include
false information on documents submitted to the U.S. Department of Housing and
Urban Development (HUD). He also challenges the district court’s denial of his
motion to dismiss the indictment based on a government witness’s destruction of
evidence, two evidentiary rulings, and the propriety of statements made in the
government’s closing.
I. MOTION TO DISMISS THE INDICTMENT
Before the government filed the indictment, one of the government’s
cooperating witnesses, mortgage broker Rene Rodriguez, destroyed a large number
of original documents. Derosa joined another defendant’s motion for a spoliation
hearing and for dismissal of the indictment based on this destruction of evidence.
After a hearing, the district court denied the motion for dismissal, finding that the
government had not acted in bad faith, that most of the documents were for
transactions not covered by the indictment, and that an adverse inference
instruction would be a sufficient remedy.
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A district court’s conclusion that no due process violation occurred as a
result of the destruction of evidence is a mixed question of law and fact. United
States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir. 2006). We review
findings of fact under the clearly erroneous standard and legal conclusions de
novo. Id. To show the government’s loss of evidence was a denial of due process,
“the defendant must show that the evidence was likely to significantly contribute to
his defense.” United States v. Brown, 9 F.3d 907, 910 (11th Cir. 1993) (citing
California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534 (1984)).
Derosa cannot demonstrate the evidence destroyed here was likely to
significantly contribute to his defense. Although he claims the destroyed evidence
was central to challenging the knowledge and intent elements of the government’s
proof, the district court found the evidence related mostly to transactions that
occurred after the property sales included in the indictment. In addition, as Derosa
himself argues on appeal, the evidence at trial established Derosa provided
accurate employment information, W-2 statements, bank accounts and other
required information to the brokers who took it upon themselves to falsify
documents for loan approval. Therefore, further evidence that Derosa submitted
accurate original documents or that Rodriguez had falsified pre-qualifying
documents was not likely to contribute significantly to Derosa’s defense. The
district court also gave a curative instruction to the jury that “[y]ou may infer that
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any documents intentionally destroyed by Rene Rodriquez, Jr. and not preserved
for introduction at trial[] are relevant to this case and would have contained
information favorable to each of the Defendants on trial today.” Accordingly, we
affirm the district court’s denial of Derosa’s motion to dismiss the indictment.
II. SUFFICIENCY OF THE EVIDENCE
We review de novo a challenge to the sufficiency of the evidence,
considering the evidence in the light most favorable to the government, and
drawing all reasonable inferences and credibility choices in the government’s
favor. United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir. 2011). “A jury’s
verdict cannot be overturned if any reasonable construction of the evidence would
have allowed the jury to find the defendant guilty beyond a reasonable doubt.”
United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991). “The evidence need
not be inconsistent with every reasonable hypothesis except guilt, and the jury is
free to choose between or among the reasonable conclusions to be drawn from the
evidence presented at trial.” United States v. Poole, 878 F.2d 1389, 1391 (11th
Cir. 1989). “When the government relies on circumstantial evidence, reasonable
inferences, not mere speculation, must support the conviction.” United States v.
Mendez, 528 F.3d 811, 814 (11th Cir. 2008).
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Derosa claims the evidence was insufficient to establish the knowledge and
intent elements of the mail and wire fraud counts. These elements require proof
that Derosa (1) knowingly devised or participated in a scheme to defraud someone
or obtained money or property using false or fraudulent pretenses, representations,
or promises; and (2) intended to defraud someone. See United States v. Brown,
665 F.3d 1239, 1246 (11th Cir. 2011).
Although Derosa points to evidence that is arguably contrary to a finding of
guilt, there is also a “reasonable construction of the evidence [that] would have
allowed the jury to find the defendant guilty beyond a reasonable doubt.” Herrera,
931 F.2d at 762. Neither is the evidence such that the jury had to speculate to
reach its conclusion. Mendez, 528 F.3d at 814.
Derosa participated personally in five of the fraudulent loan transactions.
He was present at the closings and signed documents containing false job titles and
employment information, inflated income and bank account figures, and
misrepresentations about whether he intended to live in the properties as his
primary residence. The loan documents also omitted information about other
properties for which he was getting loans and buying at the same time.
Although some of the closings might have been “point and sign” closings
with no explanation, one of the closing agents, Susan Greenburg-Lieberman,
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testified that she does not perform point and sign closings. She testified as to her
general practice of explaining the various documents to the borrower. A
reasonable jury could have concluded that Derosa was put on notice by the more
detailed closing with Greenberg-Lieberman, both for it and for the three later
transactions in which he participated, and therefore rejected his defense that he did
not know the closing documents contained fraudulent information.
There was also sufficient evidence to allow a reasonable jury to conclude
that Derosa acted with an intent to defraud. Derosa never contributed any money
to the transactions, despite representations on the mortgage documents that funds
were coming from him, the borrower. Instead he received funds from Guaracino
directly or from an entity controlled by Guaracino. In another instance Derosa
wrote a check to the IRS in his name and then received a check in an equal amount
from Guaracino. There was also evidence suggesting he lied about the source of
the borrower’s funds for at least one transaction when he was asked about it by
Postal Inspector Bender. This would also permit a jury to infer that he knew it was
improper that the funds were not coming from him. Despite not contributing any
money himself, there is evidence that Derosa received money in exchange for his
participation in the transactions. Derosa also quit-claimed at least two of the
properties to Guaracino soon after the purchases, allowing for an inference that his
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participation was only necessary to receive the financing and that he did not intend
to own the properties as an investment.
In the same way, Derosa disputes the knowledge element of the false
statement count, claiming there is no evidence that he knew the HUD-1 forms he
signed contained false information. Again, despite the contrary evidence
highlighted by Derosa, a reasonable construction of the evidence presented at trial
supports the jury’s verdict on this count.
The plain language on the HUD-1 form says “cash from borrower” and
Derosa admittedly supplied no cash for any of the property transactions. Despite
this admission, the evidence showed that in one instance Derosa signed a HUD-1
form stating the borrower was supplying $110,363.12, while the money was
coming from a second mortgage and from Guaracino. Another HUD-1 form
shows two amounts coming from the borrower; although there was evidence
Derosa received a check from Guaracino’s company several days earlier sufficient
to pay these two amounts. A third HUD-1 form shows a payment of $10,000, but
bank records show no $10,000 payment from Derosa. Considering this evidence in
the light most favorable to the government and in the context of the transactions
discussed above, we cannot say the jury’s conclusion of guilt was unreasonable.
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We therefore find there was sufficient evidence to support Derosa’s
convictions.
III. EVIDENTIARY RULINGS
“We review the district court’s admission of evidence for abuse of
discretion.” United States v. Capers, 708 F.3d 1286, 1305 (11th Cir. 2013)
(internal quotation marks omitted). “Even where an abuse of discretion is shown,
non-constitutional evidentiary errors are not grounds for reversal absent a
reasonable likelihood that the defendant’s substantial rights were affected.” Id.
(internal quotation marks omitted). In order for an error to affect substantial
rights, the error must have affected the outcome of the district court proceedings.
United States v. Gamory, 635 F.3d 480, 494 n.15 (11th Cir. 2011).
A. EVIDENCE OF DEROSA’S SIGNATURE
Under Fed. R. Evid. 901(b)(2), a non-expert can testify about handwriting
“based upon familiarity not acquired for purposes of the litigation.” See Hall v.
United Ins. Co. of Am., 367 F.3d 1255, 1259–61 (11th Cir. 2004) (laying out
standard to satisfy Fed. R. Evid. 701 and 901(b)(2)). Where there is a comparison
signature, a formal or lay expert is not needed, because the jury itself can compare
signatures and draw its own conclusions. See United States v. Bell, 833 F.2d 272,
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276 (11th Cir. 1987); United States v. Barker, 735 F.2d 1280, 1281 (11th Cir.
1984).
Derosa argues that the government did not sufficiently establish witness
Matthew Gulla’s familiarity with Derosa’s signature to permit him to testify about
it. We do not have to address that argument, because a review of Gulla’s
testimony shows that the jury here was asked to make its own signature
comparison. Derosa’s driver’s license was an exhibit. Thus, during its
deliberations, the jury could itself compare that signature to the loan documents
and draw its own conclusions. This is in fact what the government asked the jury
to do in its closing arguments. On this record, we do not find the district court
abused its discretion.
Regardless, Gulla’s testimony was not material to proving Derosa’s intent
and knowledge. Gulla was a mortgage broker, not a closing agent. There was
sufficient evidence aside from Gulla’s testimony that Derosa was at the closings
and signed the closing documents. In addition, the district court offered to instruct
the jury that the witnesses’s testimony regarding the signatures “does not preclude
the jury from making its own comparison based on the evidence,” but no
defendant, including Derosa, asked for the instruction to be read. Derosa also
acknowledges that he was able to cross-examine Gulla, who testified that he never
saw Derosa sign any documents, which the jury could also consider. Therefore,
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even if admitting Gulla’s testimony on the signatures was an abuse of discretion,
the error did not affect Derosa’s substantial rights.
B. ADMISSION OF CO-CONSPIRATOR STATEMENTS
A statement is not hearsay if it “was made by the party’s coconspirator
during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). To
introduce coconspirator statements under Rule 801(d)(2)(E), “the government must
prove by a preponderance of the evidence that (1) a conspiracy existed, (2) the
conspiracy included the declarant and the defendant against whom the statement is
offered, and (3) the statement was made during the course of and in furtherance of
the conspiracy.” United States v. Underwood, 446 F.3d 1340, 1345-–1346 (11th
Cir. 2006). “The statement must be considered but does not by itself establish . . .
the existence of the conspiracy or participation in it . . . .” Fed. R. Evid. 801(d)(2).
“[T]he admission of testimony under the co-conspirator exception to the hearsay
rule is not rendered retroactively improper by subsequent acquittal of the alleged
co-conspirator.” United States v. Hernandez-Miranda, 78 F.3d 512, 513 (11th Cir.
1996) (internal quotation marks omitted).
On appeal, Derosa complains about three statements made by Guaracino, the
alleged leader of the conspiracy, and repeated by various witnesses at trial
suggesting Derosa was a knowing and willing participant in the mortgage fraud.
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Derosa argues that these three statements should not have been admitted, because
the jury acquitted him on the conspiracy count and there was no showing that he
was part of the conspiracy. Because Derosa made no similar objection to these
statements at trial, we review for plain error and find none.
The fact that the jury found Derosa not guilty on the conspiracy charge is
immaterial. Hernandez-Martinez, 78 F.3d at 513. There was also sufficient
evidence to support a finding, by a preponderance, that Derosa was a participant in
the conspiracy. The statements themselves can be considered, pursuant to Rule
801, as long as they are considered together with other evidence. Aside from these
statements, we have summarized the evidence of Derosa’s participation in the
mortgage fraud. In light of the evidence as a whole, the effect of three scattered
comments in a two-month trial is limited and we find it did not substantially affect
the outcome.
IV. PROSECUTORIAL MISCONDUCT
We ordinarily review claims of prosecutorial misconduct de novo; however,
if not raised at trial, review is limited to plain error. United States v. Merrill, 513
F.3d 1293, 1306–07 (11th Cir. 2008). “For a claim of prosecutorial misconduct
relating to the closing argument to be successful, the argument must be improper
and prejudicial to a substantial right of the defendant.” Capers, 708 F.3d at 1308
(quoting United States v. Woods, 684 F.3d 1045, 1065 (11th Cir. 2012)). “A
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defendant’s substantial rights are prejudiced if there is a reasonable probability
that, but for the improper remarks, the outcome of the trial would have been
different.” Id. at 1308–09 (quotation marks omitted). Relief will only be granted
for “plain error that is so obvious that failure to correct it would jeopardize the
fairness and integrity of the trial.” United States v. Bailey, 123 F.3d 1381, 1400
(11th Cir. 1997) (footnote and citations omitted).
Derosa argues that the government improperly reduced its burden of proof
and attempted to hold Derosa to a higher standard as a police officer. He claims
that the government argued improperly that Derosa’s profession and training to
detect suspicious behavior made it unlikely he would sign documents without
reviewing them or fail to notice false representations. He argues this error was
compounded by the fact the evidence against him was circumstantial and the
inferences the government asked the jury to draw based on his profession went to
the disputed element of the crimes, his knowledge and intent. To support his
claim, Derosa only points to two statements in the government’s closing arguments
and several testimonial questions spanning several pages of the entire two-month
trial transcript. Derosa did not object to the government’s statements in closing
argument and did not object to the line of questioning.
Based on the record before us, we find that the district court did not err in
finding that these statements were not improper, because they were relevant to the
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credibility or believability of the police officer defendants’s defense that they did
not know about the fraud and did not notice the false statements in the closing
documents they signed.
Even if these statements and testimony were improper, we conclude that
these few references during a lengthy trial did not prejudice Derosa’s substantial
rights or jeopardize the fairness and integrity of the trial. As described above,
there was sufficient evidence to support the jury’s verdict. Nor has Derosa shown
that the jury was likely to apply an improper burden of proof. The jury instructions
set out the standard for proof beyond a reasonable doubt and reminded the jury that
“anything the lawyers say is not evidence and isn’t binding on you.” The
government also mitigated its comments by stating in its rebuttal that “no one is
saying that these defendants had some super human power to detect fraud or to
know when someone is lying to them” and “[t]hey are not being held to a higher
standard, they are not being asked to be held to any higher or lower standard than
what any other person would be asked to be held to.”
V. CONCLUSION
Based on our careful review of the record, we affirm Derosa’s convictions.
AFFIRMED.
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