United States v. Ireno Luis Delgado , 285 F. App'x 725 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-16303 July 31, 2008
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 05-00533-CR-T-24-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRENO LUIS DELGADO,
a.k.a. Ireno Luis,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 31, 2008)
Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Ireno Luis Delgado appeals his convictions and 41-month sentence for
conspiracy to commit mail fraud and mail fraud, 18 U.S.C. §§ 371, 1341. No
reversible error has been shown; we affirm.
This case stems from an investigation conducted by the Federal Bureau of
Investigation (“FBI”) about the planning and staging of automobile accidents.1 As
part of the investigation, the FBI targeted Delgado because he operated clinics
used to treat staged accident participants and submitted insurance claims on behalf
of these participants for injuries allegedly sustained. At trial, in addition to the
testimony of undercover agents, the government introduced many tape-recorded
conversations between undercover agents, Delgado, and Emmanuel Mellon, the
organizer of the staged accidents.
On appeal, Delgado argues that the district court erred in admitting (1)
Delgado’s admissions to undercover agents about his involvement in the charged
offenses to establish elements of the offenses absent independent corroborating
evidence, and (2) tape-recorded conversations between Mellon and undercover
1
To facilitate the investigation, the FBI created a company called Trident Venture Group (“TVG”)
that advanced funds to staged accident participants in exchange for a promise that the participants
would repay the amount advanced plus a handling charge when their insurance company paid them
for a bodily injury (“BI”) claim.
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agents. Delgado also argues that the district court erred in denying his motion for
judgment of acquittal based on insufficiency of the evidence.
We review the district court’s evidentiary rulings for an abuse of discretion.
United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.), cert. denied, 127
S.Ct. 2964 (2007). And we review de novo the denial of a motion for judgment of
acquittal based on sufficiency grounds, drawing all reasonable inferences in the
government’s favor. United States v. Evans, 473 F.3d 1115, 1118 (11th Cir.
2006), cert. denied, 128 S.Ct. 44 (2007).
We conclude that the district court did not abuse its discretion in admitting
the challenged evidence. The tape recordings and trial testimony evidenced the
following things: (1) Mellon was introduced to Delgado in November 2000, and
the two made arrangements to refer accident participants to Delgado’s clinic for
treatment; (2) Delgado and Mellon agreed that Delgado would pay Mellon for
referrals; (3) Mellon and Delgado met before staged accidents so Delgado could
review insurance policies of potential participants to ensure that coverage was
adequate; (4) on many occasions, Delgado expressed frustration with the patients
Mellon referred to him because their insurance coverage was too low or they
stopped treatments at his clinic; (5) a participant in a staged accident -- also an
indicted co-conspirator -- received treatment from Delgado at his clinic;
3
(6) Delgado submitted insurance claims for treatments of persons involved in
staged accidents; and (7) Delgado was aware that TVG dealt only with staged
accidents. The evidence also included copies of police reports from the accidents
and insurance claims for the accident participants, which were mailed from
Delgado’s clinics.
About Delgado’s admissions claim, while an accused may not be convicted
based on his own uncorroborated confession, “[i]f the independent evidence is
sufficient to establish the truth, trustworthiness and reliability of the accused’s
statement to the investigating authorities, and the statements themselves supply
whatever elements of the offense are not proved by the independent evidence, the
proof is sufficient to send the case to the jury.” United States v. Micieli, 594 F.2d
102, 109 (5th Cir. 1979). We conclude that no abuse occurred here because
independent evidence -- including conversations between Mellon and Delgado
about referring patients, staging accidents, and insurance coverage, testimony by a
participant who received treatment at Delgado’s clincic, police reports, and
insurance claims -- corroborated Delgado’s admissions to investigating authorities
about his involvement in the charged offenses.
About Delgado’s challenge to the admission of Mellon’s tape-recorded
statements, a statement offered against a party by a co-conspirator of that party
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during the course and in furtherance of the conspiracy is admissible as non-
hearsay if the government proves 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. Fed.R.Evid. 801(d)(2)(E); United
States v. Underwood, 446 F.3d 1340, 1345-46 (11th Cir. 2006). The government
established that a conspiracy existed between Mellon and Delgado as evidenced
by testimony from undercover agents about their initial meeting and referral
arrangements. And Mellon’s statements were made in furtherance of the
conspiracy.
We also conclude that from this admissible evidence, a reasonable jury
could find that Delgado conspired with Mellon and others to effectuate staged
accidents and submitted false claims on behalf of accident participants. To prove
a conspiracy under section 371, the government must prove the existence of an
agreement among two or more persons to achieve an unlawful objective, the
defendant’s knowing and voluntary participation in that agreement, and an overt
act in furtherance of the agreement. United States v. Hanson, 333 F.3d 1264, 1270
(11th Cir. 2003). To prove mail fraud, the evidence must show that “the defendant
(1) participated in a scheme or artifice to defraud and (2) used the United States
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mails to carry out that scheme.” United States v. Walker, 490 F.3d 1282, 1296
(11th Cir. 2007), cert. denied, 128 S.Ct. 1649 (2008). The aforementioned
evidence about Delgado’s dealings with Mellon in staging accidents, treating
accident participants at his clinic, reviewing insurance policies of accident victims,
and submitting claims on behalf of these participants sufficiently shows Delgado’s
knowing participation in the conspiracy and his use of the mails to carry out the
fraudulent scheme.2
We turn to Delgado’s sentencing claim. He argues that the district court
erred when it used unreliable documentation in determining the intended loss
attributable to Delgado. He also contends that the intended loss amount, which
included BI claims, was not reasonably foreseeable because (1) Delgado intended
only personal damage loss (“PIP”), and (2) included losses occasioned by his co-
conspirators.
We review the district court’s determination of the loss amount involved in
an offense for clear error. United States v. Svete, 521 F.3d 1302, 1317 (11th Cir.
2
Delgado also argues that the district court abused its discretion in denying his motion for a new
trial based on the admission of Delgado’s admissions and Mellon’s statements. But because we
conclude that the district court did not err in admitting these statements, we also conclude that no
abuse occurred in denying the new trial motion.
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2008). Defendants sentenced under U.S.S.G. § 2F1.13 generally receive a
sentence based upon the actual loss associated with the criminal conduct or the
intended loss, whichever is greater. United States v. Hedges, 175 F.3d 1312, 1316
(11th Cir. 1999) (citation and quotation omitted). Such loss must be proven by the
government by a preponderance of the evidence with “reliable and specific
evidence,” United States v. Dabbs, 134 F.3d 1071, 1081 (11th Cir. 1998) (citation
and quotation omitted); but the amount need not need “be precise and may only be
a reasonable estimate of the loss based on the available information,” United
States v. Woodward, 459 F.3d 1078, 1087 (11th Cir. 2006).
The district court did not clearly err in determining the loss amount. The
district court based its loss determination on amounts actually paid by the
insurances companies -- not the intended losses -- and arrived at this figure based
on the sentencing testimony of a government witness who had obtained documents
from the insurance companies showing the total loss paid, including BI and PIP
amounts, for each claim. See United States v. Polar, 369 F.3d 1248, 1255
(11th Cir. 2004) (a district court can base its sentencing determinations on, among
other things, evidence presented at the sentencing hearing itself). Nothing
3
Delgado’s sentence was calculated under the 2000 Sentencing Guidelines; section 2F1.1 later
was deleted and consolidated with U.S.S.G. § 2B1.1.
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indicates that this information was unreliable or nonspecific. It was not error for
the court to include both BI and PIP claims in the loss amount because it was
reasonably foreseeable that fraudulent insurance claims would not be limited to
PIP claims.4 Accordingly, we affirm Delgado’s convictions and sentence.5
AFFIRMED.
4
In fact, Delgado knew that participants paid advances back to TVG from money received from
BI claims. In addition, it was not error for the district court to hold Delgado liable for the acts of his
co-conspirators. See United States v. Baker, 432 F.3d 1189, 1235 (11th Cir. 2005) (co-conspirators
are liable for reasonably foreseeable acts of their co-conspirators regardless of whether they had
actual knowledge of those acts, as long as they played more than a minor role in the conspiracy or
had actual knowledge of at least some of the circumstances and events in culminating in the
reasonably foreseeable event).
5
Delgado’s argument that it was error for the district court to deny his pretrial motion to release
substitute assets is moot because the district court already issued a final forfeiture money judgment.
See Soliman v. U.S. ex. rel. INS, 296 F.3d 1237, 1242 (11th Cir. 2002) (if events occur after the
filing of a disputed motion that deprive us of the ability to give appellant meaningful relief, the issue
is moot and must be dismissed).
8