United States v. Blanca Lourdes Dellasera ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 9, 2012
No. 11-10536
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:10-cr-20438-DMM-10
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
BLANCA LOURDES DELLASERA,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 9, 2012)
Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:
Blanca Lourdes Dellasera appeals her convictions for wire fraud, 18 U.S.C.
§ 1343, and conspiracy to commit wire fraud, id. § 1349, stemming from her role
in a conspiracy to defraud mortgage institutions. Dellasera challenges the
admission of the testimony of Janeth Becerra and the denial of Dellasera’s request
to instruct the jury that coconspirator Theresa Gonzalez was a “missing witness.”
We affirm.
The district court did not abuse its discretion when it admitted testimony
from Becerra. Dellasera offered Becerra, a coworker at Baptist Hospital, an
opportunity to make $10,000 by serving as a straw buyer in a real estate
transaction. Becerra testified that she rejected that offer because she knew that a
transaction in which she received “money just to purchase . . . property” to be
“place[d] . . . in her name” was fraudulent. Becerra’s testimony conveyed her
rational “perception” of Dellasera’s offer, Fed. R. Evid. 701, and aided the jury in
determining whether Dellasera intentionally participated in a scheme to defraud,
see United States v. Jennings, 599 F.3d 1241, 1251 (11th Cir. 2010).
The district court also did not abuse its discretion by refusing to instruct the
jury that Gonzalez was a “missing witness.” Gonzalez was not “peculiarly within
the control of” the government. United States v. Nahoom, 791 F.2d 841, 846
(11th Cir. 1986). Although Gonzalez agreed to “honor whatever obligation she
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[had] under her plea agreement,” the government stated that Gonzalez intended to
“invoke her Fifth Amendment rights” and was allowed to do so “[u]nder United
States [v.] Kuku,” in which this Court held that “a defendant retains the Fifth
Amendment privilege against self-incrimination prior to sentencing, despite
having entered a guilty plea, because of the possible impact that compelled
testimony may have on [her] as yet undetermined sentence.” 129 F.3d 1435, 1438
(11th Cir. 1997).
We AFFIRM Dellasera’s convictions.
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