United States v. Madeline Rodgers

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10248
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20344-RNS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MADELINE RODGERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 11, 2015)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Madeline Rodgers appeals her sentence of 72 months of imprisonment and
her convictions for one count of conspiring to commit bank and wire fraud, 18
U.S.C. §§ 2, 1349, and two counts of wire fraud that affected a financial
institution, id. § 1343. Rodgers challenges the sufficiency of the evidence, the
denial of a requested jury instruction, and the substantive reasonableness of her
sentence. We affirm.
Viewed in the light most favorable to the government and the jury’s verdict,
the evidence proved that Rodgers conspired with other persons, including Joel
Zaldivar, Joaquin Medina, and Carlos Fonte, to defraud financial institutions by
submitting false loan applications signed by Betsy Garcia, Michael Gaughan, and
Michelle Gaughan. See id. § 1349; United States v. Martin, 803 F.3d 581, 588–89
(11th Cir. 2015). Garcia, Michael, and Michelle testified that they obtained loans
and participated in sham residential sales at Rodgers’s request; the loan
applications they signed later were altered to overstate their incomes and assets and
to include false employment information; Zaldivar, who did not speak to any of the
applicants, misrepresented on the applications that he completed the forms using
information conveyed to him during telephone interviews; and their applications
contained letters prepared by Zaldivar falsely stating that Garcia and Michelle were
employed by Medina and that Michael was employed by Lourdes Rodriguez.
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A federal agent who examined real estate records, loan documents, and bank
accounts prepared a chart that he used to explain how Rodgers and her cohorts
profited from the three loan transactions. See Martin, 803 F.3d at 589. With respect
to the first loan, which CitiMortgage, Inc., issued for Garcia to purchase Michelle’s
residence, the agent testified that Michelle used the $64,002.59 she received at
closing to provide Rodgers a cashier’s check for $63,792.59. As to the second loan,
in which Citibank, N.A., disbursed $423,020.28 to Michael to purchase Fonte’s
residence, the agent explained that Fonte supplied funds for a down payment by
giving $45,000 to Rodgers, who gave $43,000 to Michael, who made a down
payment of $41,325.25, and that Fonte received $88,074.62 and $52,451.43 at
closing, which he shared with Rodgers by giving her a check for $5,000 and a
cashier’s check for $25,000. With respect to the third loan, Citibank disbursed
$483,616.94 to Michelle to purchase property from Fabiola Llanes, who received
$475,210.28 at closing and sent a cashier’s check for $106,000 to Fonte, who
wrote three checks to Rodgers for $8,000, $8,500, and $7,575
Bank records proved that Rodgers also paid her cohorts. Rodgers wrote a
check for $1,300 to Medina before the fraudulent loan applications were submitted
to the lenders. Rodgers added Garcia and Michael as signatories to her bank
account and allowed Garcia to withdraw $9,200 from the account. And Rodgers
gave Michelle a “gift” of $5,000.
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Ample evidence proves that Rodgers and her coconspirators affected
financial institutions by causing them to transfer loan proceeds using interstate
wire transmissions. See 18 U.S.C. § 1343. CitiMortgage and Citibank disbursed
more than $900,000 through wire transmissions based on the false loan
applications submitted by the conspirators. Those disbursements “affected”
Citibank, a federally insured financial institution, and its related lending company,
CitiMortgage, because they “granted mortgages . . . based on falsified
representations of [Michael’s and Michelle’s] ability to repay, . . . [which]
increased [the] risk of loss [to the institutions] through default.” See Martin, 803
F.3d at 590.
Rodgers argues that she was entitled to an acquittal because none of the
government witnesses identified her as the “Madeline Rodgers” involved in the
conspiracy, but this argument fails. We have held repeatedly that a defendant does
not have to be “pointed out” during trial to prove that she committed the offenses
charged. United States v. Fern, 696 F.2d 1269, 1276 (11th Cir. 1983); United
States v. Darrell, 629 F.2d 1089, 1091 (5th Cir. 1980); United States v. Vahalik,
606 F.2d 99, 100 (5th Cir. 1979). The identity of a defendant can be established by
circumstantial evidence. United States v. Cooper, 733 F.2d 91, 92 (11th Cir. 1984).
The jury had before it at least two kinds of evidence connecting Rodgers to
the conspiracy. First, the jury reasonably could have relied on Rodgers’s driver’s
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license, which the United States introduced into evidence, to identify Rodgers
based on her photograph and to compare her signature with that of her namesake
on the documents and checks generated by the conspiracy. Second, the jury
reasonably could have inferred that Garcia, who was married to Rodgers’s brother,
was referring to her sister-in-law when testifying about her relationship to and
transactions with “Madeline Rodgers.”
Rodgers contends that we should vacate her convictions for a lack of
identification as we did in Darrell, but in that case the government failed to
provide any evidence to connect the defendant to a signature on a letter and bad
checks used to prosecute him for mail fraud. 629 F.2d at 1090–91. Unlike in
Darrell, “the evidence is sufficient to permit the inference that [Rodgers] was the
person who committed the crime[s]” of conspiracy and wire fraud. Id. at 1091.
The district court did not abuse its discretion when it denied Rodgers’s
request for a jury instruction about witnesses who testify in exchange for immunity
or to gain favor with the government. “A defendant has the right to have the jury
instructed on a theory of defense only if the proposed instruction presents a valid
defense and if there has been some evidence adduced at trial relevant to that
defense.” United States v. Duperval, 777 F.3d 1324, 1334 (11th Cir. 2015)
(internal quotation marks, citation, and brackets omitted). Rodgers requested that
the district court instruct the jurors to “consider some witnesses’ testimony with
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more caution,” like “witnesses who have been promised immunity from
prosecution, or witnesses who hope to gain more favorable treatment in their own
cases . . . in order to strike a good bargain with the Government,” but Rodgers
failed to introduce any evidence that the government witnesses testified in
exchange for actual or potential benefits. See United States v. McQueen, 727 F.3d
1144, 1154 (11th Cir. 2013). And the district court gave a jury charge related to
Rodgers’s theory that Garcia and the Gaughans falsely denied collaborating with
the conspiracy to avoid prosecution. See Duperval, 777 F.3d at 1334. The district
court instructed the jury to “decide whether you believe what each witness had to
say” and whether to “believe or disbelieve any witness in whole or in part” by
considering if “the witness [had] any particular reason not to tell the truth” or had
“a personal interest in the outcome of the case.” This instruction apprised the jury
that they could discount testimony they found incredible.
The district court also did not abuse its discretion when it sentenced Rodgers
to 72 months of imprisonment. The district court reasonably determined that a
sentence within Rodgers’s advisory guideline range of 63 to 78 months of
imprisonment best satisfied the statutory purposes of sentencing. See 18 U.S.C.
§ 3553(a). And the decision to impose a sentence well below Rodgers’s maximum
statutory sentence of 30 years suggests that her sentence is reasonable. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). Rodgers alleges a
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disparity between her sentence and lesser sentences imposed on Fonte and
Zaldivar, but Rodgers was not similarly situated to those coconspirators. See
United States v. Docampo, 573 F.3d 1091, 1101–02 (11th Cir. 2010). Fonte and
Zaldivar pleaded guilty and received lesser sentences for their acceptance of
responsibility. Rodgers’s sentence is reasonable.
We AFFIRM Rodgers’s convictions and sentence.
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