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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11108
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-25139-RNS,
1:14-cr-20344-RNS-2
MADELINE RODGERS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 3, 2019)
Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges.
PER CURIAM:
Madeline Rodgers appeals the denial of her motion to vacate her convictions
for conspiring to commit bank and wire fraud, 18 U.S.C. § 1349, and for two
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counts of wire fraud.
id. § 1343. 28 U.S.C. § 2255. We issued a certificate of
appealability to address whether Rodgers’s trial counsel was ineffective for
alleging during opening statements that serving as and using a straw buyer to
purchase residential properties was not illegal. Because Rodgers’s counsel did not
act deficiently by making the statement and Rodgers failed to establish that
counsel’s action prejudiced her defense, we affirm.
A grand jury indicted Rodgers and a coconspirator for defrauding financial
institutions by submitting false and fraudulent loan applications electronically. The
indictment alleged that Rodgers and her cohort “recruited straw buyers to act as . . .
mortgage applicants.” The indictment further alleged that Rodgers and her
coconspirator induced lending institutions to fund monies using “loan applications
and related documents . . . [that] contained numerous false statements and
representations relating to the straw buyers’ employment, income, deposits, assets,
liabilities, intent to make the property a primary residence, and other information”
and that they diverted loan proceeds for personal use and to pay the straw buyers.
Rodgers entered a plea of not guilty to the charges and proceeded to trial.
During opening statements, Rodgers’s counsel stated that the use of a straw buyer
in a property transaction was not illegal. Counsel stated, “And one of the things I
am absolutely certain you are going to notice is that nobody is charged with being
a straw buyer and nobody is charged with using a straw buyer and there is reason
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for that. It is not illegal to be a straw buyer, nor is it illegal to use a straw buyer to
purchase property.” The government presented testimony from three straw buyers
and a federal agent and introduced numerous documents that the jury found
sufficient to establish Rodgers’s guilt for conspiracy and wire fraud.
Rodgers moved to vacate her convictions on the ground that trial counsel
was ineffective for “incorrectly t[elling] the jury that ‘being a straw buyer or using
a straw buyer’ was not illegal.” See 28 U.S.C. § 2255. The government responded
that counsel’s statement was a correct statement of law and he acted reasonably in
contesting the charges against Rodgers, and in the alternative, that counsel’s
statement did not prejudice Rodgers. The district court denied Rodgers’s motion.
We review de novo the denial of a motion to vacate based on a claim of
ineffective assistance of counsel. Chandler v. United States,
218 F.3d 1305, 1312
(11th Cir. 2000) (en banc). A “high bar” exists for a postconviction movant to
prevail on an argument that trial counsel acted ineffectively. Padilla v. Kentucky,
559 U.S. 356, 371 (2010). The movant must prove both that counsel acted
deficiently and that those errors “were significant enough to have affected the
outcome” of the trial. United States v. Nyhuis,
211 F.3d 1340, 1344 (11th Cir.
2000). Because counsel is presumed to have provided representation “within the
‘wide range’ of reasonable professional assistance,” for the movant to succeed on
an argument of deficient performance, he must establish that counsel’s errors were
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“so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington,
466 U.S. 668, 687,
689 (1984); see
Chandler, 218 F.3d at 1314. Even if counsel acted deficiently, the
movant must also prove that his counsel’s errors were “so serious as to deprive
[him] of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687.
The district court did not err by denying Rodgers’s claim that counsel made
a professional error during his opening statement. Rodgers’s counsel made an
accurate statement about straw buyers as part of his strategy to persuade jurors that
Rodgers’s conduct did not equate to defrauding a financial institution, 18 U.S.C.
§ 1344. Section 1344 punishes the act of making false representations to a bank
with the intent to obtain money or property.
Id. Counsel acknowledged that
Rodgers recruited and paid straw buyers, but “following the plain terms of the
statute,” counsel argued that the straw buyers committed the fraud by preparing the
false documents that deceived the mortgage lenders. See Smith v. Singletary,
170
F.3d 1051, 1054 (11th Cir. 1999) (citing from Cianbro Corp. v. Jeffcoat & Martin,
804 F. Supp. 784, 790 (D.S.C. 1992), that “[a]n attorney cannot be held liable for
following the plain terms of a statute when there are not compelling circumstances
to suggest otherwise, even [if] a court later decides that interpretation is
erroneous.”). We cannot say “no competent counsel” would have advanced the
technically correct argument that Rodgers’s involvement with straw buyers,
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persons whose identities were used to purchase property yet never intend to occupy
or own the property, without more, was not a federal crime. See
Chandler, 218
F.3d at 1315. The government detected defense counsel’s strategy and clarified
during its closing argument that the buyers’ representations about purchasing
property that “in reality they are buying . . . for somebody else” “is illegal because
“the bank wouldn’t have approved . . . if they knew that that individual was a straw
buyer.” And the prosecutor highlighted that Rodgers “was directly involved in
submitting this false information to all of the banks.”
Even if we were to assume that counsel was deficient, Rodgers could not
establish a reasonable probability that his trial would have ended differently but for
counsel’s argument. Counsel made the argument during opening statements, after
which the government presented substantial evidence of Rodgers’s guilt. In
addressing Rodgers’s challenge to the sufficiency of the evidence on direct appeal,
we concluded that “the evidence proved that Rodgers conspired with other persons
. . . to defraud financial institutions by submitting false loan applications signed
by” straw buyers, United States v. Rodgers, 631 F. App’x 912, 913 (11th Cir.
2015), and that “[a]mple evidence prove[d] that Rodgers and her coconspirators
affected financial institutions by causing them to transfer loan proceeds using
interstate wire transmissions,”
id. at 914. And the district court instructed the jury
before opening statements and after closing statements that the arguments of
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counsel were not evidence. The arguably “improper statements [by Rodgers’s
counsel] c[ould] be rectified by the district court’s instruction[s] to the jury that
only the evidence in the case be considered.” United States v. Lopez,
590 F.3d
1238, 1256 (11th Cir. 2009) (quoting United States v. Smith,
918 F.2d 1551, 1562
(11th Cir. 1990)). We presume the jury followed that instruction.
Id. In the light of
the solitary nature of counsel’s argument, the substantial evidence of Rodgers’s
guilt, and the curative instructions given by the district court, there exists no basis
to conclude that she established there existed a substantial likelihood of a different
outcome had counsel not made his argument about straw buyers.
We AFFIRM the denial of Rodgers’s motion to vacate.
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