United States v. Martha Parker

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12829
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-20639-FAM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISABEL MARTINEZ,
Defendant-Appellant.
________________________
No. 15-12941
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-20639-FAM-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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MARTHA PARKER,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(January 18, 2017)
Before TJOFLAT, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
In this multi-appellant appeal, Martha Parker appeals her conviction for
conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349, and three
counts of bank fraud, in violation of 18 U.S.C. § 1334(1) and (2). Parker argues
that the government failed to present sufficient evidence that she knew of and
intended to participate in the scheme to defraud banks and, accordingly, the district
court committed reversible error in failing to grant her motion for summary
judgment of acquittal.
Isabel Martinez appeals her conviction and sentence for conspiracy to
commit bank fraud, in violation of 18 U.S.C. § 1349, and four counts of bank
fraud, in violation of 18 U.S.C. § 1334(1) and (2). Martinez argues, first, that the
district court plainly erred in trying her jointly with Parker, thereby violating her
Sixth Amendment rights, because a misjoinder of both the charges in the
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indictment and of the parties occurred and denied her a fair trial. Specifically, she
argues that the indictment charged two separate conspiracies involving the same
modus operandi but different people and entities, and that Parker was the only
individual charged in both. She argues that there was only one transaction
involving both herself and Parker charged in the indictment, and because the two
women did not know each other or knowingly transact business with each other,
their association was largely accidental. She argues that, even if the defendants
were not misjoined, they should have been severed to avoid prejudice under
Federal Rule of Criminal Procedure 14(a) because the quantum of evidence at trial
was significantly greater against Parker than against herself. Secondly, Martinez
argues that the district court abused its discretion in sentencing her to 84 months’
imprisonment when Parker received a minor-role reduction and only 46 months’
imprisonment, and Cesar Alvarez Munoz, the acknowledged hub of the conspiracy,
received a 36 month sentence. Martinez argues that the district court specifically
noted her “cavalier” attitude at trial and improperly considered that when imposing
sentence.
Martinez and Parker were named, along with four other co-defendants, in a
15-count indictment. Parker was charged with one count of conspiracy to commit
bank fraud, three counts of bank fraud, and one count of wire fraud. Martinez was
charged with same conspiracy count as Parker and one of same bank-fraud counts,
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as well as with three separate counts of bank fraud. The indictment alleged, in
relevant part, that Martinez, Parker, and their co-defendants conspired to defraud
various financial institutions by using unqualified “straw buyers” to purchase and
finance residential properties in Florida and then divert the funds for their own
benefit. It charged that Parker, a licensed real estate agent and mortgage broker,
recruited straw buyers with good credit to serve as qualifying mortgage applicants
for fraudulent purchase and financing of the properties; that fraudulent documents
were prepared and submitted to lenders to induce them to fund mortgage loans to
finance the purchase of the properties; and that Martinez, a licensed title agent and
mortgage broker, prepared or caused to be prepared fraudulent closing statements
in furtherance of the conspiracy. Martinez and Parker both pled not guilty and
proceeded to a joint trial. A jury found Martinez guilty of all five counts against
her. The same jury found Parker guilty of the conspiracy and bank fraud counts
against her, and not guilty of wire fraud. We will address each of their arguments
in turn.
Parker
We review a challenge to the sufficiency of the evidence supporting a
criminal conviction de novo, examining the evidence in the light most favorable to
the government and drawing all reasonable inferences and making all credibility
choices in the government’s favor. United States v. Silvestri, 409 F.3d 1311, 1327
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(11th Cir. 2005). The relevant question is whether a reasonable jury could have
concluded that the evidence established the defendant’s guilt beyond a reasonable
doubt. Id. We “will not disturb a guilty verdict unless, given the evidence in the
record, no trier of fact could have found guilt beyond a reasonable doubt.” Id.(quotations omitted). It is unnecessary for the government “to disprove every
reasonable hypothesis of innocence, as the jury is free to choose among reasonable
constructions of the evidence.” United States v. Mieres-Borges, 919 F.2d 652, 656
(11th Cir. 1990). “[W]hen a criminal defendant chooses to testify on [her] own
behalf, [her] statements, if disbelieved by the jury, may be considered as
substantive evidence of [her] guilt.” United States v. Taohim, 817 F.3d 1215, 1221
(11th Cir. 2013) (quotations omitted). “The test for sufficiency of evidence is
identical regardless of whether the evidence is direct or circumstantial, and no
distinction is to be made between the weight given to either direct or circumstantial
evidence.” United States v. Doe, 661 F.3d 550, 560 (11th Cir. 2011) (quotation
omitted). However, “[w]here the government relies on circumstantial evidence,
reasonable inferences, and not mere speculation, must support the jury’s verdict.”
Id. (quotations omitted).
A defendant is guilty of bank fraud if she “knowingly executes, or attempts
to execute, a scheme or artifice—(1) to defraud a financial institution; or (2) to
obtain any of the moneys, funds, credits, assets, securities, or other property owned
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by, or under the custody or control of, a financial institution, by means of false or
fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1344. In tandem,
18 U.S.C. § 1349 provides that “any person who attempts or conspires to commit
any offense under this chapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the attempt
or conspiracy.” 28 U.S.C. § 1349.
To sustain a conviction for conspiracy under 18 U.S.C. § 1349, the
government must prove that (1) a conspiracy existed; (2) the defendant knew of the
plan; and (3) the defendant knowingly and voluntarily joined the plan. United
States v. Moran, 778 F.3d 942, 960 (11th Cir. 2015). Because a conspiracy “is
predominately mental in composition, the government may prove the elements by
circumstantial evidence.” Id. The government does not need to prove that the
defendant knew all of the details of the conspiracy, but only that the defendant
knew of the essential nature of the conspiracy.” Id. (quotations and citations
omitted). A conviction may be upheld “when the circumstances surrounding a
person’s presence at the scene of conspiratorial activity are so obvious that
knowledge of its character can be fairly attributed to [her].” Id. at 960–61.
A conviction for bank fraud under § 1344(1) requires proof that (1) the
defendant “intentionally participated in a scheme or artifice to deprive another of
money or property”; and (2) that the intended victim was a federally insured
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financial institution. United States v. McCarrick, 294, F.3d 1286, 1290 (11th Cir.
2002). Similarly, a conviction under § 1344(2) requires proof that (1) a scheme
existed to obtain money in the custody of a federally insured bank by fraud; (2) the
defendant participated in the scheme by means of material false pretenses,
representations or promises; and (3) the defendant acted knowingly. Id.
Circumstantial evidence may prove a defendant’s knowledge and intent. United
States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004).
Here, the district court did not err in denying Parker’s motions for a
judgment of acquittal because sufficient evidence existed from which a reasonable
jury could have concluded that Parker knowingly participated in the fraud. See
Silvestri, 409 F.3d at 1327. Although the evidence is circumstantial, reasonable
inferences support the jury’s verdict. See Doe, 661 F.3d at 560. As an initial
matter, Parker does not contest the existence of the fraudulent scheme, or that she
recruited two individuals as investors. She argues only that she did not knowingly
participate in the fraud because she was unaware that the scheme, or her
participation in it, was fraudulent. However, testimony shows, first, that Parker
was a licensed real estate agent and mortgage broker either during or prior to the
time of the fraud, and that she also had held various insurance licenses. This
suggests she possessed general knowledge of the common practices and
procedures of the real estate and mortgage industries. Parker’s statements to a
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special agent investigating the case show that Parker knew the role the straw
buyers she recruited would play in the transactions, while Parker’s prior experience
in and knowledge of real estate and mortgage matters suggest knowledge that
straw-purchaser transactions would be fraudulent.
Moreover, one of the two individuals Parker recruited to purchase real estate
properties in Florida, Jose Guzman, testified that Parker knew he was a truck driver
making about $13,000 when she recruited him. Yet, Parker informed him that he
“qualified” to purchase three such properties. Similarly, testimony shows that the
other individual, Leslie Fuentes, also a friend of Parker’s, made around $30,000
per year as an administrative assistant. Parker recruited her to purchase a property
for more than $500,000. According to Guzman’s and Fuentes’s testimony, Parker
told the straw buyers that they did not need to make any down payments or invest
any money of their own, and that “investors” would rent the properties and make
the mortgage payments. Guzman was aware that his only role in the investment
was to “put down [his] name” in exchange for the payments he received. Parker
collected personal identity and financial information from Guzman and Fuentes
and accompanied both of them to their first property closing. They signed the
papers put in front of them without knowing their contents and lacking an
explanation of what happened at the property closing.
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Additionally, Guzman testified that he turned down Parker’s offer to help
him arrange a short-sale transaction when his properties fell into foreclosure. Yet,
Parker sent an authorization form to Wells Fargo to release his loan information
with a signature that Guzman testified was not his. Fuentes testified that Parker
told her that Parker invested in an apartment in one of the property developments,
although no evidence exists of her actually doing so. Parker contended that the
money she received from the scheme was referral fees. However, testimony
further showed that Parker mishandled the money she received from the scheme by
accepting referral fees that went outside PRG and failing to properly report the fees
in financial or tax documents, all of which provide further circumstantial evidence
that Parker knew the transactions were fraudulent.
Although Parker testified that she knew nothing of the fraud, given the
evidence of Parker’s knowledge of the real estate and mortgage industries, the
difference between the financial situations of straw buyers and the properties they
qualified to purchase, Parker’s awareness that her recruits would be purchasers in
name only, her mishandling of her referral fees, the lack of information provided to
buyers, and the fraudulent nature of the documents, it was reasonable for a jury to
infer that Parker knew the essential nature of the fraudulent plan, even if she did
not know all of the details, and that she intentionally participated in the plan. See
Doe, 661 F.3d at 560; Silvestri, 409 F.3d at 1327; Moran, 778 F.3d at 960;
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McCarrick, 294 F.3d at 1290. The district court did not err in denying Parker’s
motion for judgment of acquittal, as the evidence presented at trial sufficiently
showed that she knowingly and intentionally participated in the conspiracy to
commit bank fraud when she recruited straw buyers for the scheme to defraud
mortgage lenders. Accordingly, we affirm.
Martinez’s Conviction Challenge
Because Martinez did not argue for a severance below, we review only for
plain error. United States v. Olano, 507 U.S. 725, 731–32 (1993). Under plain-
error review, Martinez must show (1) an error that (2) is plain, (3) affects
substantial rights, and (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 732.
Federal Rule of Criminal Procedure 8(b) provides that multiple defendants
may be charged together in the same indictment if they are alleged to have
participated in the same act or transaction, or in the same series of acts or
transactions constituting an offense. Fed. R. Crim. P. 8(b). Rule 14(a) provides
that, if it appears that a defendant is prejudiced by a joinder of offenses or of
defendants in an indictment or a consolidation for trial, “the court may order
separate trials of counts, sever the defendants’ trials, or provide whatever other
relief justice requires.” Fed. R. Crim. P. 14(a).
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The trial court determines prior to trial whether joinder of offenses is proper
under Fed. R. Crim. Pro. 8(b) based on an examination of the allegations stated on
the face of the indictment. United States v. Diaz, 248 F.3d 1065, 1102 (11th Cir.
2001). Joinder is improper if it results in “actual prejudice because it had
substantial and injurious effect or influence in determining the jury’s verdict.” Id.If the allegations in the indictment, taken as true, establish a single conspiracy and
there is no claim of prosecutorial bad faith or an erroneous interpretation of law,
then initial joinder was proper. United States v. Morales, 868 F.2d 1562, 1569
(11th Cir. 1989).
“Joint trials play a vital role in the criminal justice system and serve
important interests: they reduce the risk of inconsistent verdicts and the unfairness
inherent in serial trials, lighten the burden on victims and witnesses, increase
efficiency, and conserve scarce judicial resources. Zafiro v. United States, 506
U.S. 534, 537 (1993); United States v. Lopez, 649 F.3d 1222, 1233–34 (11th Cir.
2011). In this circuit, “defendants who are indicted together are usually tried
together.” Lopez, 649 F.3d at 1234. “This rule is even more pronounced in
conspiracy cases ….” Id.
To justify a severance, the defendant bears the “heavy burden of
demonstrating that compelling prejudice would result from a joint trial.” Id. “To
show compelling prejudice, a defendant must establish that (1) a joint trial would
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actually prejudice the defendant and (2) a severance is the only proper remedy for
that prejudice—jury instructions or some other remedy short of severance will not
work.” Id.
In demonstrating prejudice, it is insufficient that the defendants “may have a
better chance of acquittal in separate trials.” Zafiro, 506 U.S. at 540. Rather, the
defendant must establish that the joint trial resulted in a “specific and compelling
prejudice” to her. United States v. Liss, 265 F.3d 1220, 1228 (11th Cir. 2001). We
have held that severance may be necessary where, inter alia, (1) the defendants
rely upon mutually antagonistic defenses, and (2) a cumulative and prejudicial
“spill over” effect may prevent the jury from making an individualized
determination as to each defendant because it cannot sift through the evidence as
necessary. United States v. Chavez, 584 F.3d 1354, 1360–61 (11th Cir. 2009).
The jury pronouncing different verdicts for the various defendants and counts is
evidence that the jury properly sifted through the evidence to make the requisite
individualized determinations as to each defendant. United States v. Diaz, 248
F.3d 1065, 1101 (11th Cir. 2001). We previously held that where the sheer
number of defendants, charges, standards of proof, and culpability, as well as the
volume of evidence, make it “nearly impossible for a jury to … assess the guilt or
innocence of each defendant independently,” the jury may not be able to make a
reliable judgment. Blakenship, 382 F.3d 1110, 1124 (11th Cir. 2004).
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Here, the district court committed no error in trying Martinez and Parker
together. First, the defendants were charged with the same conspiracy, in which
they did not interact but nevertheless participated in the same series of transactions
involving the same key players and the same modus operandi. See Fed. R. Crim.
P. 8(b); Diaz, 248 F.3d at 1102; Morales, 368 F.2d at 1569. Both were charged
with one count of bank fraud involving the same real estate transaction. Although
they were each charged with three counts of bank fraud for transactions that did
not involve the other—and Parker was charged with one count of wire fraud—each
transaction for which they were charged was part of the overall conspiracy.
Martinez argues that Parker’s wire fraud charge involved a separate conspiracy in
which Martinez was uninvolved. She is incorrect—it was simply a different
charge stemming from the same conspiracy.
Second, there is no evidence that the joinder of the two defendants resulted
in any prejudice to Martinez warranting severance. See Fed. R. Crim. P. 14(a);
Lopez, 649 F.3d at 1234. Because Martinez and Parker played roles on the
opposite ends of the scheme—Parker recruited purchasers in the first instance, and
Martinez closed transactions—witnesses largely testified against one defendant or
the other, and the number of witnesses testifying in each defendant’s case was
almost even, avoiding any potential prejudicial spill-over effect. See Chavez, 584
F.3d at 1360–61. Although the transactions at issue in the case were complicated,
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there were not so many defendants nor so much evidence that trying them together
was untenable for the jury. See Blakenship, 382 F.3d at 1124. Indeed, presenting
testimony in regard to both defendants, involving both ends of the scheme,
presented a clearer picture of the overall conspiracy, which would, if anything,
better ensure a fair trial. Moreover, their differing roles prevented them from
relying on mutually antagonistic defenses. See Chavez, 584 F.3d at 1354.
Contrary to Martinez’s assertion, the quantum of evidence at trial was not
largely against Parker, but against Martinez, whose charges involved more
witnesses and whose larger role in the overall scheme is evidenced by the fact that
Parker received a minor-role reduction at sentencing while Martinez did not.
Finally, the district court issued a limiting instruction telling the jury that it must
consider each defendant and each charge individually. In opening argument,
Martinez’s counsel made the same point. Thus, any prejudice that might have
arisen was remedied. See Lopez, 649 F.3d at 1234. The jury’s acquittal of Parker
of the wire fraud count, while finding the defendants guilty on other counts, further
supports that the jury sifted through the evidence to make individual
determinations for each charge. See Diaz, 248 F.3d at 1101.
Thus, the district court did not plainly error in trying the two defendants
together because they were charged with the same conspiracy, involving the same
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key players, a series of real estate transactions involving the same modus operandi,
and there is no evidence that joining them resulted in any prejudice to Martinez.
Martinez’s Sentence Challenge
We review the substantive reasonableness of a sentence for abuse of
discretion, a standard that “allows a range of choice for the district court, so long as
that choice does not constitute a clear error of judgment.” U.S. v. Irey, 612 F.3d
1160, 1188–89 (11th Cir. 2010) (en banc). “The party challenging the sentence
bears the burden to show it is unreasonable in light of the record and the § 3353(a)
factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Under 18 U.S.C. § 3553(a), the district court is required to impose a
sentence “sufficient, but not greater than necessary, to comply with the purposes”
of § 3553(a)(2)—the need to reflect the seriousness of the offense, promote respect
for the law, provide just punishment, deter criminal conduct, protect the public
from the defendant’s future criminal conduct, and effectively provide the defendant
with educational or vocational training, medical care, or other correctional
treatment. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence, the court
must also consider the nature and circumstances of the offense; the history and
characteristics of the defendant; the kinds of sentences available; the applicable
guideline range; the pertinent policy statements of the Sentencing Commission; the
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need to avoid unwarranted sentencing disparities; and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)–(7).
The weight to accord any given § 3553(a) factor is a matter committed to
the sound discretion of the district court. United States v. Williams, 526 F.3d 1312,
1322 (11th Cir. 2008). A district court abuses its discretion and imposes a
substantively unreasonable sentence when it fails to afford consideration to
relevant factors that were due significant weight, gives substantial weight to an
improper or irrelevant factor, or commits a clear error of judgment in considering
the proper factors. Irey, 612 F.3d at 1190. We only vacate a sentence if “left with
the definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Id.
The district court need not discuss or state each factor explicitly;
“acknowledgement the district court has considered the defendant’s arguments and
the § 3553(a) factors will suffice.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008). A sentence within the guideline range is ordinarily expected to
be reasonable. Id.Here, the district court did not abuse its discretion in imposing an 84-
month sentence. The sentence fell within Martinez’s advisory guideline range, so
there is an expectation of reasonableness. See Gonzalez, 550 F.3d at 1324. The
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record shows that the district court not only considered Martinez’s arguments, but
discussed them at length during the sentencing hearing. See id. On appeal,
Martinez argues primarily that there is a disparity between her sentence and the
smaller ones received by co-defendants in the case. The record shows that the
district court considered the potential for sentencing disparities, explaining at
sentencing that Martinez’s case was not comparable to that of her co-defendants
because, unlike Martinez, they accepted responsibility for their actions and did not
commit perjury at trial, as Martinez had done. Thus, any disparities in sentencing
were warranted. See 18 U.S.C. § 3553(a)(6).
Additionally, Martinez’s argument that the district court relied on her
demeanor at trial in imposing a harsher sentence is not borne out by the record. At
the start of the sentencing hearing, the district court noted that Martinez had a
cavalier attitude at trial and that it “may influence me.” But, at sentencing,
Martinez and her sister-in-law explained Martinez’s smiles and laughter during
witness testimony. After hearing that explanation, the district court stated that it
would not consider her demeanor in imposing a sentence. Rather, the district court
gave significant weight to Martinez’s perjury. The court noted a need to protect
the public and indicated that it had considered the § 3553(a) factors, the
presentence investigation report, trial testimony, letters from Martinez’s family and
friends, and the arguments of counsel in imposing a sentence. It was within the
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court’s discretion to give greater weight to some factors over others, and thus, the
district court committed no clear error of judgment. See Williams, 526 F.3d at
1322; Gonzalez, 550 F.3d at 1324; Irey, 612 F.3d at 1190.
Martinez’s sentence was substantively reasonable because her within-
guideline sentence reflected a reasonable weighing of the 18 U.S.C. § 3553(a)
factors, including the need to avoid unwarranted sentencing disparities, and the
district court—despite some comments earlier in the sentencing hearing—stated
that it did not take into account Martinez’s seemingly cavalier attitude at trial in
imposing a sentence. Accordingly, we affirm.
AFFIRMED.
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