United States v. Moreno Straccialini , 489 F. App'x 663 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4741
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MORENO STRACCIALINI,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:09-cr-00464-PJM-1)
Submitted: July 18, 2012 Decided: July 23, 2012
Before GREGORY, AGEE and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Bonsib, MARCUSBONSIB, LLC, Greenbelt, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, Jonathan
Biran, Appellate Chief, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
I.
Moreno Straccialini and his wife planned to open a
Korean barbeque restaurant in Lusby, Maryland. The Appellant
leased a space and solicited construction bids, and after
receiving several, he discussed his options with Sandra Wyatt,
an acquaintance who was advising him about the restaurant.
Looking to save money, the Appellant entered into a contract
with Wyatt to have her do the construction herself for $145,000.
At this time, the Appellant was experiencing severe financial
difficulty: he had taken out an $800,000 mortgage on his
$580,000 home, had substantial credit card debt, and owed
thousands in monthly lease payments for the restaurant.
Unable to secure a private-sector loan for the
construction of his restaurant, the Appellant applied for a
Small Business Administration (“SBA”) loan, submitting an
application to Newtek, a private lender affiliated with the SBA.
Wyatt and the Appellant agreed that the Appellant would falsely
state on his loan application that the construction costs
totaled $295,000, rather than the $145,000 the two had
previously agreed on. Wyatt produced a forged contract to
Newtek, and she and the Appellant agreed that when the SBA
approved the loan and sent the extra $150,000 to Wyatt, Wyatt
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would remit the extra funds to the Appellant. The loan was
approved and Wyatt transferred the funds. The Appellant used
the money to pay off loans from family members and credit cards,
fund a retirement account, and cover personal expenses.
The scheme was eventually uncovered and the Appellant
was charged with conspiracy, making false statements, and making
false statements to the SBA. At trial, the Appellant testified
that the construction contract was for $295,000, the amount
indicated on the loan application. He disputed the authenticity
of an email message sent between Wyatt and himself which
indicated that Wyatt had been “paid in full” after she received
$145,000. During cross examination, the Appellant said -- for
the first time -- that he had given his defense attorney a
different version of the same email message and would produce it
to the Government during a break in his testimony. The defense
produced the document during a brief recess shortly before the
cross-examination was completed. The Appellant was then re-
directed on issues not directly related to the email, and on re-
cross the Government confronted him with evidence that the email
message was fabricated.
Appellant was found guilty and sentenced to 30 months’
imprisonment plus three years of supervised release. He timely
appeals.
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II.
The Appellant makes five claims of error on appeal.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process. We
reject each of them and affirm the conviction and sentence.
A.
The Appellant claims that the district court erred in
permitting the Government to re-cross him on the issue of
whether the email he provided on cross-examination was a
forgery. This issue is reviewed for abuse of discretion.
United States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979).
Federal Rule of Evidence 611 states, “Cross-examination should
not go beyond the subject matter of the direct examination and
matters affecting the witness’s credibility. The court may
allow inquiry into additional matters as if on direct
examination.” FED. R. EVID. 611(b). Here, the forgery question
clearly related to the witness’s credibility.
B.
The Appellant next contends the district court erred
in denying his motion for judgment as a matter of law. This
issue is reviewed de novo. United States v. Romer, 148 F.3d
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359, 364 (4th Cir. 1998). The question is whether a reasonable
fact finder could find the defendant guilty after “viewing the
evidence . . . in the light most favorable to the Government.”
United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (en
banc). The district court correctly found that there was
sufficient evidence to convict. The Appellant only challenges
the materiality element of the false statements convictions. A
false statement is material if it had a “natural tendency to
influence, or was capable of influencing, the decision . . . .”
Kyngys v. United States, 485 U.S. 759, 770 (1988) (internal
quotations marks & citations omitted). “It is irrelevant
whether the false statement actually influenced or affected the
decision-making process.” United States v. Sarihaifard, 155
F.3d 301, 307 (4th Cir. 1998). The defendant’s false statement
that he had a construction contract for $295,000, when the
contract was actually for $145,000, is material. The amount of
a requested loan is straightforwardly material to whether the
loan will be approved. Moreover, concealing the fact that the
Appellant planned on having his contractor kick back $150,000 of
the loan proceeds would plainly be relevant to the borrower’s
decision.
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C.
The Appellant further claims that the district court’s
failure to provide a reasonable doubt jury instruction requires
reversal. As the Appellant recognizes, this Court has already
ruled that it is improper to give a reasonable doubt instruction
unless the jury requests it. United States v. Oriakhi, 57 F.3d
1290, 1300 (4th Cir. 1995).
D.
The Appellant next argues that the district court
improperly instructed the jury that if it found the Appellant
forged the email, it could consider that fact as evidence of his
consciousness of guilt. On this issue the abuse of discretion
standard applies. Romer, 148 F.3d 359. The district court’s
instruction was proper. The Appellant does not dispute that the
evidence was admissible, but suggests that because the
Government, rather than the defense, introduced the allegedly
false email, no falsification-of-evidence instruction should
have been given. The Appellant cites no case law suggesting
this was improper, and this Court has long recognized that a
trial court may advise the jury that an “exculpatory statement
made by a defendant and found to be untrue could be considered
evidence of a defendant’s consciousness of guilt.” United
States v. McDougald, 650 F.2d 532, 533 (4th Cir. 1981).
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E.
Finally, the Appellant contends the district court
erred in its sentencing with respect to the calculation of the
loss that resulted from the offense. The court found the
Appellant intended a $150,000 loss and rejected the Appellant’s
contention that it should have instead used the $97,000 in
actual losses. In reviewing a district court’s calculations of
the federal sentencing guidelines, questions of law are reviewed
de novo and findings of fact for clear error. United States v.
King, 673 F.3d 274, 281 (4th Cir. 2012). Under the sentencing
guidelines, loss is computed as “the greater of actual loss or
intended loss.” U.S.S.G. § 2B1.1(b)(1). The district court
found that while the actual loss may have been $97,000, the
intended loss was the difference between the actual construction
contract and the false contract submitted to Newtek -- $145,000
- $295,000, or $150,000. Because the intended loss is greater
than the actual loss, the district court did not err in using
the $150,000 figure.
III.
For the reasons discussed above, we affirm the
Appellant’s conviction and sentence.
AFFIRMED
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