United States v. Aurora Ramentol , 410 F. App'x 236 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10791 ELEVENTH CIRCUIT
DECEMBER 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-20987-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AURORA RAMENTOL,
JACQUELINE PEREZ-CASTILLO,
LIZABETH PEREZ,
ERICK CLAVIJO,
Defendants-Appellants.
ESTER CRESPO,
Defendant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(December 29, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Aurora Ramentol, Jacqueline Perez-Castillo, Lizabeth Perez, and Erick
Clavijo appeal their convictions on one count each of wire fraud, resulting from
their participation in a mortgage fraud scheme. Perez also appeals her $497,845.25
restitution order, imposed following her conviction.
On December 13, 2007, a federal grand jury seated in the U.S. District Court
for the Southern District of Florida returned a 29-count indictment against, among
several others, Ramentol, Perez-Castillo, Perez, and Clavijo. Each of these
Defendants was charged with one count of wire fraud, in violation of 18 U.S.C.
§§ 1343 and 2, stemming from their participation in an extensive mortgage fraud
scheme. Count 1 of the indictment charged Juan Torrens, Rachel Torrens, Daniel
Ramos, Katherine Harris, and Alfonso Muxo with conspiracy to commit wire
fraud, in violation of 18 U.S.C. § 1349, as well as several substantive counts of
wire fraud.
In short, the conspiracy worked as follows: Juan Torrens and Ramos would
recruit and pay “straw buyers” to lend their credit and personal information for the
Torrenses to obtain lower interest rate mortgages for the purchase of investment
properties to “flip” for profit; the Torrenses would submit mortgage applications
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which included falsified employment, income, and other financial information on
behalf of the straw buyers, so that higher loan amounts could be obtained; Muxo
would provide inflated property appraisals, to support overstated sale prices and to
enable Juan Torrens to obtain potential profits up-front (often to fund remodeling
or upgrades); and Harris would provide falsified settlement statements and HUD-1
forms to lenders to conceal material information regarding the sales and profits).
The Torrenses, Ramos, Harris, and Muxo all pleaded guilty to the conspiracy
charge. The substantive counts alleged that these straw buyers, Ramentol, Perez-
Castillo, Perez, and Clavijo, amongst others, participated in a scheme to defraud
the lender and to obtain money by means of materially false and fraudulent
pretenses, representations, and promises. Ramentol, Perez-Castillo, Perez, and
Clavijo pleaded not guilty, and proceeded to trial. The jury rendered guilty
verdicts as to all charged Defendants, and these appeals followed.
Each of the four Defendants-Appellants argues on appeal that the
government failed to introduce evidence sufficient for a jury to convict them of
wire fraud. Clavijo also argues that the district court erred in admitting copies of
documents contained in his closing file, as they were allegedly not properly
authenticated. Finally, Perez argues that the district court erred in calculating the
amount of the loss in establishing her sentencing guideline and in setting
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restitution.
I.
[We] review[] sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the
government, with all reasonable inferences and
credibility choices made in the government’s favor. We
will not overturn a conviction on the grounds of
insufficient evidence unless no rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt. Finally, our Court must accept a jury’s
inferences and determinations of witness credibility.
United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (citations and
quotations omitted); see also United States v. US Infrastructure, Inc., 576 F.3d
1195, 1203 (11th Cir. 2009), cert. denied, 130 S. Ct. 1918 (2010) (“The evidence
need not be inconsistent with every hypothesis other than guilt, as the jury is free
to choose among reasonable constructions of the evidence.”) (citation and
quotation omitted).
A district court’s denial of a motion for new trial based on the weight of the
evidence is reviewed for clear abuse of discretion. United States v. Pedrick, 181
F.3d 1264, 1266–67 (11th Cir. 1999); see also United States v. Martinez, 763 F.2d
1297 (11th Cir. 1985).
The decision to grant or deny a new trial motion based on
the weight of the evidence is within the sound discretion
of the trial court. An appellate court may reverse only if
it finds the decision to be a clear abuse of that discretion.
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While the district court’s discretion is quite broad, there
are limits to it. The court may not reweigh the evidence
and set aside the verdict simply because it feels some
other result would be more reasonable. The evidence
must preponderate heavily against the verdict, such that it
would be a miscarriage of justice to let the verdict stand.
Motions for new trials based on weight of the evidence
are not favored. Courts are to grant them sparingly and
with caution, doing so only in those really “exceptional
cases.”
Id. at 1312–13 (citations omitted).
Under 18 U.S.C. § 1343, wire fraud requires proof beyond a reasonable
doubt that “(1) the defendant participated in a scheme or artifice to defraud; (2)
with the intent to defraud; and (3) used, or caused the use of, interstate wire
transmissions for the purpose of executing the scheme or artifice to defraud.”
United States v. Williams, 527 F.3d 1235, 1240 (11th Cir. 2008). “A scheme to
defraud requires proof of a material misrepresentation, or the omission or
concealment of a material fact calculated to deceive another out of money or
property.” United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009).
“Section 1343 targets not the defendant’s creation of a scheme to defraud, but the
defendant’s execution of a scheme to defraud.” Williams, 527 F.3d at 1241.
Federal Rule of Evidence 901(b)(3) provides that a document may be
authenticated through comparison by the trier of fact with specimens which
themselves have been authenticated. This Court has previously held, consistent
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with that rule, that a jury is entitled to make a comparison between a known,
genuine signature of a defendant, and a signature on a challenged document
purporting to be that of the defendant, to decide whether the defendant signed the
document. United States v. Bell, 833 F.2d 272, 276 (11th Cir. 1987); United States
v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969).1
Considering the trial record, each of the Appellants has failed to demonstrate
that no rational jury could have found the essential elements of wire fraud under
the evidence presented by the government. The Defendants’ primary argument on
appeal, that they did not intend for the respective lenders funding their loan
transactions to suffer financial losses because they expected Torrens to pay the
mortgages, ignores the lenders’ testimony that they would not have funded the
loans at all had they been aware of the significant misrepresentations made by each
Defendant in the closing documents they signed. Moreover, even assuming that
Torrens paid (or would pay) the mortgages, the lenders would still have suffered
financial harm, because the loans properly would have carried a higher interest rate
had the truth about the investment purposes and the risks of the loans been
disclosed and not misrepresented to the lenders. Thus, at a minimum, the lender
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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would lose money on each mortgage payment Torrens made as a result of the fraud
committed by the Defendants, because the misrepresentations resulted in lower
interest payments. The jury’s verdict as against each Defendant was therefore
sufficiently supported by the evidence.
With respect to the individual Defendants, the record reveals as follows:
Ramentol
The jury heard evidence that Ramentol lent her credit to Juan Torrens in
exchange for a payment of $8000. It was undisputed that there were material
misrepresentations on Ramentol’s final loan application and a certification at
closing that Ramentol would occupy the property as her primary residence. The
lender funding the Ramentol loan testified that it would not have gone through
with the financing absent these misrepresentations, or, alternatively, that the
interest rate would have been higher because it was an investment property.
Ramentol has failed to demonstrate that no rational jury could convict her of wire
fraud on this evidence.
The district court’s ruling that the jury could compare Ramentol’s genuine
signature on her bank signature card with the signatures on the closing documents
to determine whether Ramentol signed them, is fully consistent with Federal Rule
of Evidence 901(b)(3), and this Court’s holding in Cashio, 420 F.2d at 1135.
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Ramentol has thus not shown error in this regard either.
Perez-Castillo
The jury heard evidence that Perez-Castillo agreed to lend her credit to Juan
Torrens in exchange for a payment of $8000. Torrens testified that he spoke
directly to Perez-Castillo on the phone, making it known to her that her loan
application would be falsified. It was undisputed that there were material
misrepresentations on the final loan application signed by Perez-Castillo at closing,
and her certification at closing that she would occupy the property as her primary
residence was false. In an interview, Perez-Castillo admitted to a financial auditor
with the U.S. Attorney’s Office, Lewis Sellers, that she signed those key
documents at closing. The lender funding the Perez-Castillo loan testified that it
would not have gone through with the financing absent these misrepresentations,
or, alternatively, that the interest rate would have been higher because it was an
investment property. Perez-Castillo has failed to demonstrate that no rational jury
could convict her of wire fraud on this evidence.
Perez
The jury heard evidence that Perez agreed to lend her credit to Juan Torrens
in exchange for a payment of $8000. It was undisputed that there were material
misrepresentations on the final loan application signed by Perez at her closing, and
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her certification at closing that she would occupy the property as her primary
residence was false. When interviewed in the presence of counsel, Perez said that
Ramos described this arrangement as an investment where it did not matter that
Perez had no money. The lender funding Perez’s loan testified that it would not
have gone through with the financing absent these misrepresentations, or,
alternatively, that the interest rate would have been higher because it was an
investment property. Perez has failed to demonstrate that no rational jury could
convict her of wire fraud on this evidence.
Clavijo
The jury heard evidence that Clavijo agreed to lend his credit to Juan
Torrens in exchange for a payment of $8000. Torrens testified that he spoke with
Clavijo on the phone, as Clavijo had questions about possible tax implications
relating to the straw sale. It was undisputed that there were material
misrepresentations on the final loan application Clavijo admitted to signing at
closing, and his certification at closing that he would occupy the property as his
primary residence was false. Clavijo also admitted to Lewis Sellers that he signed
the closing documents. The lender funding the Clavijo loan testified that it would
not have gone through with the financing absent these misrepresentations, or,
alternatively, that the interest rate would have been higher because it was an
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investment property. Clavijo has failed to demonstrate that no rational jury could
convict him of wire fraud on this evidence.
II.
“The decision to admit or exclude evidence is committed to the sound
discretion of the trial court.” United States v. Taylor, 17 F.3d 333, 338 (11th Cir.
1994) (“On review, we will not disturb the trial court’s evidentiary rulings unless
the court has clearly abused its discretion in this area.”) (citations and quotation
omitted). A district court has discretion to determine the authenticity of a
challenged document, and “that determination should not be disturbed on appeal
absent a showing that there is no competent evidence in the record to support it.”
United States v. Munoz, 16 F.3d 1116, 1120-21 (11th Cir. 1994) (citation and
quotation omitted).
Federal Rule of Evidence 901(a) provides that: “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” Such authentication may be established by the testimony of a
witness with knowledge that the matter is what it is claimed to be. Fed. R. Evid.
901(b)(1).
A duplicate [of a document] is admissible to the same
extent as an original unless (1) a genuine question is
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raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in
lieu of the original.
Fed. R. Evid. 1003.
Clavijo has failed to demonstrate that the district court erred in admitting the
scanned copies of his closing documents. Ms. Taylor, with WMC Mortgage,
testified that all documents received by the lender were scanned into their
computer, consistent with company policy. Once scanned, the documents could
not be edited, altered, or manipulated. The copies of the Clavijo documents
introduced at trial were true and complete copies downloaded from WMC’s
system. The district court therefore did not err in finding that the Clavijo closing
documents were what the lender claimed they were. Moreover, Clavijo admitted
that he signed the relevant documents at closing, and specifically identified his
signature on the documents. Under these facts, Clavijo failed to raise a genuine
question about the authenticity of the original closing papers, and was thus not
entitled to demand production of the originals instead of the scanned copies
admitted.
III.
“We review de novo the interpretation and application of the Guidelines, and
we review underlying factual findings for clear error.” United States v. Foley, 508
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F.3d 627, 632 (11th Cir. 2007) (citation omitted). For the purposes of restitution,
the burden of proof is upon the government by a preponderance of the evidence.
United States v. Bourne, 130 F.3d 1444, 1447 (11th Cir. 1997). Where a district
court applies an advisory sentencing guideline, it can enhance the sentence based
on facts it finds by a preponderance of the evidence without running afoul of the
Sixth Amendment. United States v. Chau, 426 F.3d 1318, 1323–24 (11th Cir.
2005).
“[T]he sentencing Guidelines require a district court, at the sentencing
stage, to make independent findings establishing the factual basis for its Guidelines
calculations. . . . The district court’s factual findings for purposes of sentencing
may be based on, among other things, evidence heard during trial, undisputed
statements in the PSI, or evidence presented during the sentencing hearing.”
United States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006) (citations and
quotations omitted).
U.S. Sentencing Guidelines Manual § 2B1.1 provides that the applicable loss
amount is the greater of the actual loss—“the reasonably foreseeable pecuniary
harm that results from the offense”—or the intended loss—“the pecuniary harm
that was intended to result from the offense.” See § 2B1.1 cmt. n.3(A)(i) and (ii).
Further, where collateral is pledged or provided by the defendant, the loss amount
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is to be reduced by “the amount the victim has recovered at the time of sentencing
from disposition of the collateral.” § 2B1.1 cmt. n.3(E)(ii). Market value for the
collateral at the time of sentencing is used, however, where such collateral has not
been disposed of at the time of sentencing. Id.
On the sentencing record, we perceive no error in the district court’s
reasonable estimate of the loss, and its resulting restitution order. At sentencing,
the government introduced into evidence documents showing that the property for
which Perez acted as a straw buyer had been sold by the lender for $515,000,
leaving an outstanding loan amount (loss) of over $528,000. Consistent with the
dictates of § 2B1.1, cmt. n.3(A)(i) and (ii), and cmt. n.3(E)(ii), the district court
properly applied this actual loss figure. This same loss figure was used as the
starting point for the purposes of restitution, with a reduction by the district court
for extraneous sale-related costs for which Perez should not be held responsible.
The restitution amount ordered was therefore based on undisputed evidence
introduced by the government, and was not clearly erroneous.
Upon review of the record and consideration of the parties’ briefs, we affirm
the convictions as to each Appellant, and affirm Perez’s sentence.
AFFIRMED.2
2
Appellant’s request for oral argument is denied.
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