United States v. Mario Naranjo

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13814 MARCH 2, 2011
________________________ JOHN LEY
CLERK
D. C. Docket No. 06-80151-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO NARANJO,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(March 2, 2011)

Before EDMONDSON and PRYOR, Circuit Judges, and EVANS,* District Judge.

PRYOR, Circuit Judge:

*
Honorable Orinda D. Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
 The main issue in this appeal is whether there is sufficient evidence to

support Mario Naranjo’s convictions for concealment money laundering related to

his operation of a Ponzi scheme that caused over one hundred victims to lose

collectively over $2.7 million. The government presented evidence that Naranjo

made three large cash withdrawals from bank accounts that contained fraudulently

obtained proceeds of the Ponzi scheme and that Naranjo attempted to hide his

association with the account holders. Viewed in the light most favorable to the

government, this evidence supports a finding that Naranjo intended to conceal the

ownership and source of funds obtained by fraud.

Naranjo also makes four other arguments. First, Naranjo argues that the

government failed to prove that he intended to defraud his victims and that we

should vacate his convictions for fraud and for various charges that relate to his use

of proceeds of the Ponzi scheme. Second, Naranjo contends that the government

failed to disclose evidence in violation of the Jencks Act, 18 U.S.C. § 3500, and the

Due Process Clause of the Fifth Amendment, see Brady v. Maryland, 373 U.S. 83,

83 S. Ct. 1194 (1963). Third, he argues that the district court violated his rights to

due process under the Fifth Amendment and to confront his accusers under the

Sixth Amendment by admitting summary evidence of financial records at trial.

Fourth, Naranjo argues that the district court erred when it enhanced his sentence

2
based on estimates of the losses he caused. These arguments lack merit. We

affirm Naranjo’s convictions and sentence.

I. BACKGROUND

On March 8, 2000, Naranjo incorporated MRNA Financial, Inc., in Florida

for the purpose of operating a check cashing and payday loan business. On June

28, 2001, Naranjo opened an account for MRNA at First Union Bank (later

Wachovia Bank) and designated himself as a signatory on the account. Although

MRNA was administratively dissolved on September 21, 2001, Naranjo kept the

MRNA account open and began to solicit capital from investors purportedly to

fund the business venture. MRNA received its first contributions from investors in

May 2002.

On January 29, 2003, Naranjo and Charles Carver incorporated in Florida

The Loan Shoppe, Inc., for the stated purpose of providing check cashing, payday

loan, and car loan services. Carver served as the sole officer and director of The

Loan Shoppe. Corporate filings listed Carver as the incorporator and originally

listed Naranjo as the registered agent, but a third person replaced Naranjo as the

registered agent on February 21, 2003. Thereafter, Naranjo was not listed on

corporate filings of The Loan Shoppe.

On February 7, 2003, Naranjo and Carver purchased an existing check

3
cashing business from Ouri Kahn for $24,000. Naranjo negotiated and financed

the purchase, but Carver signed the purchase agreement. Under the agreement,

Kahn assigned his leases for two stores in Miami and Davie, Florida, to Carver to

operate as The Loan Shoppe. Florida law did not allow Kahn to transfer his check

cashing license, so The Loan Shoppe submitted an application for a license to the

Florida Department of Financial Services soon after the acquisition of Kahn’s

stores. The license application represented that Carver would operate the business

and made no reference to Naranjo.

On February 24, 2003, Naranjo and Carver opened a bank account for The

Loan Shoppe at Wachovia Bank in Florida. The account listed both Naranjo and

Carver as signatories. After The Loan Shoppe began its operations, Carver helped

manage the business, but Naranjo, among other responsibilities, determined how

much working capital to provide the stores. Naranjo gave checks to Carver, who

cashed the checks and delivered cash to the stores.

In May 2003, the Florida Department of Financial Services requested

additional information about The Loan Shoppe and its owners to process the

license application. Instead of providing the requested information, The Loan

Shoppe withdrew its application for a state license. The Loan Shoppe continued to

provide check cashing services, but the Department later issued a cease and desist

4
letter that stated that The Loan Shoppe could not cash checks without a license.

The Loan Shoppe never obtained a license to cash checks or issue payday loans in

Florida and instead affiliated with another check cashing company called

Intertransfers, Inc., in June 2003. This affiliation allowed The Loan Shoppe to

cash checks legally.

In the summer of 2003, Naranjo dispatched Carver to Alabama to develop

plans for the expansion of The Loan Shoppe into the Birmingham metropolitan

area. Carver and Naranjo soon announced that they were closing their Florida

stores and relocating their business to Alabama. Carver applied for a certificate of

existence for The Loan Shoppe and, on August 13, 2003, Carver registered The

Loan Shoppe, L.L.P., in Alabama. Registration documents listed Carver as the

president and agent. On September 26, 2003, Carver and a third party opened a

bank account for The Loan Shoppe, Inc. at the National Bank of Commerce in

Alabama. The Loan Shoppe never obtained an Alabama license, but operated three

check cashing stores in Pelham, Irondale, and Alabaster, which are suburbs of

Birmingham. The Loan Shoppe completed its relocation to Alabama and closed its

Florida stores in the late summer or early fall of 2003. Carver opened two more

bank accounts for The Loan Shoppe in Alabama in 2004. Carver and a third

person were largely responsible for managing the Alabama stores. Naranjo never

5
visited the Alabama stores.

Naranjo remained in Hollywood, Florida, where he oversaw a multi-million

dollar capital investment operation, created allegedly to finance the expansion of

his small chain of check cashing and payday loan stores. After the establishment

of MRNA and continuing after the incorporation of The Loan Shoppe, Naranjo

issued bonds and promissory notes to investors that promised high interest rates in

exchange for their investments. Naranjo hired several salesmen to help solicit

investments, purchased “lead sheets” that listed potential investors, prepared a

scripted sales pitch for his salesmen, and instructed salesmen not to contact

individuals named on a list of “undercover regulators” he had developed. Naranjo

told his salesmen that The Loan Shoppe was “very profitable,” and salesmen

promised investors annual returns of 10 percent on the bonds and 18 or 24 percent

on the promissory notes. Salesmen told investors that their investments would be

held in segregated accounts and would be refunded if the company had financial

troubles. Naranjo prepared packets of information for the salesmen to send to

potential investors. These packets contained, among other items, a business license

from the City of Pelham, Alabama, a Wall Street Journal article that described the

profitability of payday loan businesses, and a short biography of Carver that

exaggerated his military record. A private placement memorandum informed

6
purchasers of bonds that about 16 percent of investor funds would cover overhead

costs associated with the issuance of the bonds, but The Loan Shoppe did not make

any such disclosure to the purchasers of promissory notes. Salesmen mailed the

packets to potential investors and sometimes faxed additional information to

investors. In return for their services, the salesmen received sales commissions of

15 or 20 percent.

Investors contributed $4,440,620 to Naranjo’s capital investment

campaign. This amount reflects investments from 139 investors in the United

States and Colombia who provided capital contributions that ranged from $2000 to

$750,000. Investors either wired funds to the MRNA or The Loan Shoppe

accounts or mailed checks payable to the companies. Even though MRNA

dissolved eight months before the first investments arrived, the MRNA account

received deposits of more than $1.5 million. Funds also were transferred from the

Florida bank account of The Loan Shoppe to the MRNA account over two years

after the dissolution of MRNA. Other funds that investors had contributed were

transferred from the MRNA account to the Florida bank account of The Loan

Shoppe.

Despite Naranjo’s ability to obtain millions of dollars from investors, The

Loan Shoppe was a failure. The Loan Shoppe, during its two years of existence,

7
earned only $506,876 in operating income. This income did not cover amounts

The Loan Shoppe paid customers through check cashing and loans, and the

business suffered an operational loss of $64,444.09, excluding payroll, insurance,

and other overhead expenses.

The investors did not finance the expansion of a legitimate business, but

instead funded a Ponzi scheme, which covered the considerable overhead expenses

of The Loan Shoppe and enriched Carver and Naranjo. The Loan Shoppe used

$1,346,573.49—approximately 30 percent of its capital contributions—to pay

interest to investors or return investments. The Loan Shoppe spent another

$1,060,864.19—approximately 24 percent of its capital contributions—to pay

commissions to its salesmen. The Loan Shoppe also spent $381,586.91 on payroll

expenses and $896,299.84 on general business expenses. Carver received more

than $50,000 and Naranjo received a total of $450,531.08. Naranjo’s receipts

included funds from the accounts of The Loan Shoppe and MRNA that Naranjo

had diverted to another business venture called Advance America and funds that

Naranjo had paid directly to his personal creditors. Naranjo paid his landlord

$24,000 for one year of rent, $32,431.04 toward the purchase of a new BMW car,

and $22,000 for dental work, all from funds deposited by investors in MRNA.

Naranjo also made three large cash withdrawals from MRNA and The Loan

8
Shoppe accounts that corresponded with deposits from investors. On March 21,

2003, an investor deposited $15,000 into the MRNA account. Three days later,

Naranjo cashed a $5000 check drawn on the MRNA account. MRNA received a

total of $6500 from investors on March 25, 2003, and March 27, 2003. On March

28, 2003, Naranjo cashed a $6000 check drawn from the MRNA account. On

November 18, 2003, an investor deposited $30,000 into the Florida account of The

Loan Shoppe. That same day, Naranjo cashed a $20,000 check drawn from that

account.

The investors in The Loan Shoppe did not fare as well as Naranjo. Although

The Loan Shoppe paid a considerable portion of its funds to investors, most

investors did not receive the interest payments that Naranjo and his salesmen had

promised. In April 2004, after receiving a complaint from a Michigan investor

who had not received his promised interest payments, Special Agent Christopher

Young of the Alabama Securities Commission began investigating The Loan

Shoppe. Young eventually received complaints from about 20 investors. Young

learned that The Loan Shoppe was cashing checks without a license, but he did not

warn investors to withdraw their investments. He turned his investigation over to

Florida authorities after determining that no Alabama citizens had invested in The

Loan Shoppe.

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 A series of events in late 2004 and early 2005 marked the downfall of The

Loan Shoppe. In November 2004, The Loan Shoppe dissolved, but Carver

revoked the dissolution the following month. On November 29, 2004, Naranjo

incorporated another business in Florida, Advance America, Inc., and named

himself the agent, incorporator, and president of the new corporation. In

December 2004, two checks drawn on the Wachovia account of The Loan Shoppe,

both for amounts exceeding $20,000, were made for the benefit of Advance

America. On January 5, 2005, Naranjo resigned as president of Advance America.

On January 26, 2005, The Loan Shoppe mailed investors a letter, purportedly

signed by Carver, but not written by him, that stated that The Loan Shoppe had

become the victim of “a corporate identity thief” when another company solicited

investments under the same name. In the spring of 2005, federal authorities ceased

operation of The Loan Shoppe. In May 2005, Agent James Grunwald of the

Federal Bureau of Investigation began to examine business records of The Loan

Shoppe.

In 2006, a federal grand jury indicted Naranjo and Carver on one count of

conspiracy to commit mail fraud and wire fraud, 18 U.S.C. § 1349; seven counts of

mail fraud, id. §§ 2, 1341; three counts of wire fraud, id. §§ 2, 1343; one count of

conspiracy to commit money laundering activity, id. § 1956(h); and nine counts of

10
promotional money laundering, id. §§ 2, 1956(a)(1)(A)(i). The grand jury also

indicted Naranjo for three counts of concealment money laundering, id. §§ 2,

1956(a)(1)(B)(i), based on his three checks for cash from the MRNA and The Loan

Shoppe accounts. The grand jury also indicted Naranjo on five counts of engaging

in monetary transactions in property derived from specified unlawful activity, id.

§§ 2, 1957. The grand jury indicted Carver for two counts of concealment money

laundering, id. §§ 2, 1956(a)(1)(B)(i).

At Naranjo and Carver’s trial, the government presented testimony from

twenty-one witnesses, including former salesmen, investors in The Loan Shoppe,

Grunwald, and Young. Carver took the stand in his defense, but Naranjo did not

testify. During Grunwald’s testimony, the government introduced charts that

provided summaries of the financial transactions of The Loan Shoppe that were

based largely on business records. Naranjo’s lawyer objected on the ground that

the charts should be used only for demonstrative purposes. The district court

overruled the objection and allowed the charts to be introduced as summary

evidence.

During Young’s testimony, Naranjo requested, under the Jencks Act, id. §

3500, any reports Young had prepared during his investigation. Young, who was

employed in Nevada at the time of the trial, had prepared a closing memorandum

11
upon the termination of his investigation, but he no longer had access to it because

it was in the possession of Alabama authorities. Young further testified that he had

not given the memorandum to federal authorities, and the prosecutor stated that

federal authorities did not have possession of any memorandum prepared by

Young. The district court found that the requested documents were not in the

possession of federal authorities and denied Naranjo’s motion.

The jury convicted Naranjo of one count of conspiracy to commit mail and

wire fraud, six counts of wire fraud, three counts of mail fraud, one count of

conspiracy to commit money laundering, five counts of promotional money

laundering, three counts of concealment money laundering, and five counts of

engaging in monetary transactions with property derived from criminal activity.

The jury acquitted Naranjo of one count of wire fraud and four counts of

promotional money laundering. The jury acquitted Carver of all charges. The

district court granted Naranjo’s motion to vacate his two conspiracy convictions on

the ground that Naranjo’s alleged co-conspirator, Carver, had been acquitted of all

charges. Naranjo also moved to set aside his concealment money laundering

conviction on the ground that the government had presented insufficient evidence

to support the convictions, but the district court denied this motion. The district

court later granted Naranjo’s motion to dismiss his lawyer and to proceed pro se.

12
 The district court held three sentencing hearings to address various pro se

motions made by Naranjo. The district court denied, among other motions,

Naranjo’s multiple motions for acquittal or for a new trial that related to Young’s

testimony, including a motion that alleged that the government had failed to

disclose the report prepared by Young in violation of Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194 (1963). Naranjo attached to another motion for a new trial

based on newly discovered evidence a police report summary that stated that

Florida officials had received information from Young and then shared this

material with Grunwald. The district court also denied this motion.

Naranjo objected to the recommendation in his presentence investigation

report to enhance his sentence based on the total number of investors and the total

amount invested. Naranjo argued that investors who received payouts from The

Loan Shoppe should not be included in the number of victims and that amounts

returned to investors should not be included in the loss calculation. Agent

Jonathan Ostroman of the Federal Bureau of Investigation examined Grunwald’s

reports and testified at sentencing that 30 investors were refunded their full

investments. Ostroman testified that Naranjo had defrauded 109 investors of a

total of $2,747,137.47. The district court accepted Ostroman’s calculation even

though Grunwald had testified at trial that he had not closely examined every

13
document he obtained from The Loan Shoppe and MRNA. The district court

enhanced Naranjo’s sentence based on findings that he defrauded between 50 and

250 investors, U.S. Sentencing Guidelines Manual § 2B1.1(b)(2)(B) (2005), and he

caused a loss of more than $2.5 million but less than $7 million, id. §

2B1.1(b)(1)(J). The district court also applied an enhancement for Naranjo’s

leadership role in the criminal activity, id. § 3B1.1(c), and cited the extensive

nature of Naranjo’s criminal activity as an alternate basis for the enhancement, 18

U.S.C. § 3553(a)(1).

The sentencing guidelines provided a sentence range of 108 to 135 months

of imprisonment. The district court sentenced Naranjo to 120 months of

imprisonment for each offense and ordered that the sentences run concurrently.

The district court also ordered Naranjo to serve concurrent three-year terms of

supervised release on each conviction, to pay a special assessment of $2200, to pay

restitution of $175,478, and to forfeit $2.5 million.

II. STANDARDS OF REVIEW

Several standards of review govern this appeal. “We review a verdict

challenged for sufficiency of the evidence de novo, resolving all reasonable

inferences in favor of the verdict.” United States v. Yost, 479 F.3d 815, 818 (11th

Cir. 2007). “We cannot disturb the verdict ‘unless no trier of fact could have found

14
guilt beyond a reasonable doubt.’” Id. at 818–19 (quoting United States v. Lyons,

53 F.3d 1198, 1202 (11th Cir. 1995)). We review a denial of a motion for a new

trial based on an alleged violation of Brady or the Jencks Act for abuse of

discretion. United States v. Isaac Marquez, 594 F.3d 855, 859–60 (11th Cir.), cert.

denied, 130 S. Ct. 3373 (2010). We review the calculation of losses by the district

court for clear error. United States v. Woodard, 459 F.3d 1078, 1087 (11th Cir.

2006). We review an argument made for the first time on appeal for plain error.

See United States v. Emmanuel, 565 F.3d 1324, 1333 (11th Cir.), cert. denied, 130

S. Ct. 1032 (2009).

III. DISCUSSION

We divide our discussion in four parts. First, we discuss Naranjo’s

argument about the sufficiency of the evidence used to support his convictions.

Second, we discuss Naranjo’s motion for a new trial based on alleged violations of

the Jencks Act and Brady. Third, we discuss Naranjo’s arguments about the

admission of summary evidence of financial records. Fourth, we discuss Naranjo’s

argument that the district court clearly erred at sentencing when it based its

findings on estimates of the number of victims and amount of loss.

A. Sufficient Evidence Supports Each of Naranjo’s Convictions.

Naranjo raises two arguments about the sufficiency of the evidence the

15
government presented to support his convictions. First, Naranjo argues, for the

first time on appeal, that the district court should have vacated all of his

convictions because the government failed to prove that he intended to participate

in a fraud. Second, Naranjo argues that the district court erred when it denied his

motion for acquittal on the charges of concealment money laundering because the

three checks for cash drawn from the MRNA and The Loan Shoppe bank accounts

are insufficient evidence of concealment money laundering when his business

required cash for its daily operations. Both of these arguments fail. We discuss

each argument in turn.

1. The Record Supports a Finding That Naranjo Intended to Participate in a Fraud.

Naranjo argues that all of his convictions should be vacated because the

evidence failed to support a factual finding that Naranjo intended to participate in a

fraud, but we disagree. Naranjo contends that he operated a legitimate business

that would have “flourished” if not for “Young and his misguided investigation

and tactics that caused investors to demand refunds.”

Proof of an intent to defraud is necessary to support Naranjo’s mail and wire

fraud convictions. 18 U.S.C. §§ 1341, 1343; United States v. Jennings, 599 F.3d

1241, 1250 (11th Cir. 2010). Proof of fraud also is necessary to support Naranjo’s

convictions for concealment money laundering, 18 U.S.C. § 1956(a)(1)(B)(i);

16
promotional money laundering, id. § 1956(a)(1)(A)(i); and engaging in monetary

transactions in property derived from specified unlawful activity, id. § 1957. Proof

of fraud is necessary because these crimes prohibit certain uses of illegal proceeds,

and the government did not allege that Naranjo derived income from any illegal

activities other than mail and wire fraud. “A scheme to defraud requires proof of a

material misrepresentation, or the omission or concealment of a material fact

calculated to deceive another out of money or property.” United States v.

Maxwell, 579 F.3d 1282, 1299 (11th Cir. 2009). “A jury may infer an intent to

defraud from the defendant’s conduct.” Id. at 1301. Evidence that a defendant

personally profited from a fraud may provide circumstantial evidence of an intent

to participate in that fraud. See United States v. Navarro-Ordas, 770 F.2d 959,

966–67 (11th Cir. 1985).

The jury reasonably found that Naranjo intended to participate in a

fraudulent scheme. Evidence presented at trial established that Naranjo operated a

check cashing and payday loan business without a state license; mailed copies of a

city business license to prospective investors because he did not have a state

license for check cashing; hid his connection to the business by omitting his name

on corporate records and license applications; told his salesmen that the business

was “very profitable” when it did not generate a profit; invested only a small

17
portion of investor funds on expansion of The Loan Shoppe; promised high rates

of return that few, if any, investors actually received; exaggerated Carver’s military

record to potential investors; spent a majority of investor funds on debt service and

sales commissions without informing investors; and personally profited over

$450,000 from a business that did not generate a profit.

The jury was entitled to reject any inference that The Loan Shoppe failed

because Young warned investors to withdraw their investments, but even if we

could evaluate the credibility of this defense, the record gives no support to

Naranjo’s argument. Young testified that he did not tell investors to request

refunds of their investments and that he did not even communicate with investors

who did not contact him first. The record supports the finding of the jury that

Naranjo intended to participate in a fraud.

2. The Record Establishes That Naranjo Purposefully Concealed the Source or
Ownership of Funds.

Naranjo argues that his concealment money laundering convictions must be

vacated because the government did not prove that he purposefully concealed

funds, but we again disagree. The concealment money laundering statute prohibits

financial transactions conducted for the purpose of concealing unlawfully obtained

funds:

Whoever, knowing that the property involved in a financial transaction

18
 represents the proceeds of some form of unlawful activity, conducts or
attempts to conduct such a financial transaction which in fact involves
the proceeds of specified unlawful activity . . . (B) knowing that the
transaction is designed in whole or in part–(i) to conceal or disguise the
nature, the location, the source, the ownership, or the control of the
proceeds of specified unlawful activity . . . shall be sentenced to a fine
. . . or imprisonment . . . .

18 U.S.C. § 1956(a)(1). Wire fraud and mail fraud are both “specified unlawful

activit[ies]” subject to the concealment money laundering statute. See id. §§

1956(c)(7)(A), 1961(1)(B). Because Naranjo concedes that a financial transaction

occurred and we have already concluded that the evidence supports a finding that

Naranjo knowingly participated in a fraud, our discussion addresses only whether

the government presented sufficient evidence to prove that Naranjo knew that a

purpose of his transactions was to conceal the location, source, ownership, or

control of the funds he obtained by fraud.

The government must present substantial evidence of purposeful

concealment to support a conviction for concealment money laundering. United

States v. Majors, 196 F.3d 1206, 1213 (11th Cir. 1999). The spending of illegal

proceeds alone is insufficient to prove concealment money laundering. Id. This

Court has provided a non-exhaustive list of examples of evidence that may support

a finding that a defendant purposefully sought to conceal funds, which includes

“[‘]structuring the transaction in a way to avoid attention; depositing illegal profits

19
in the bank account of a legitimate business; highly irregular features of the

transaction; using third parties to conceal the real owner; [and] a series of unusual

financial moves cumulating in the transaction.[’]” Id. at 1213 n.18 (quoting United

States v. Garcia-Emanuel, 14 F.3d 1469, 1475–76 (10th Cir. 1994) (emphasis

omitted)).

Naranjo argues that his transactions were not secretive or irregular because

he signed and endorsed the pertinent checks and cashed these checks to provide

working capital for the daily operations of The Loan Shoppe. Naranjo argues that

his transactions were not complex arrangements structured to hide the source of the

funds. To support his position, Naranjo relies on United States v. Johnson, where

this Court held that a transfer of funds to a foreign bank account did not support a

conviction for concealment money laundering. 440 F.3d 1286, 1293 & n.5 (11th

Cir. 2006).

Naranjo’s arguments fail. The government presented evidence that Naranjo

hid his connection to the relevant bank accounts and made three large cash

withdrawals from them. The record does not support Naranjo’s argument that he

made cash withdrawals to provide operating capital for The Loan Shoppe, and

Johnson is distinguishable.

Efforts to “conceal . . . the ownership[] or the control” of illegal proceeds

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constitute concealment money laundering. 18 U.S.C. § 1956(a)(1)(B)(i). This

Court has held that evidence that a defendant placed or directed the deposit of

illegal income into a bank account held by a third person or corporation and then

received the benefit of those proceeds is sufficient to support a conviction of

concealment money laundering. See, e.g., United States v. Miles, 290 F.3d 1341,

1356 (11th Cir. 2002); United States v. Thayer, 204 F.3d 1352, 1354–55 (11th Cir.

2000); United States v. Flynt, 15 F.3d 1002, 1005 n.7, 1007 (11th Cir. 1994).

Similarly, payments by check from accounts held by third parties may support a

finding of concealment money laundering because these transactions misrepresent

the source of wealth and produce documentary evidence that “could mislead an

investigator.” Garcia-Emanuel, 14 F.3d at 1476–77. Transfers of illegal proceeds

to an account held in the name of an individual doing business as a corporation do

not support a finding of purposeful concealment. See United States v.

Blankenship, 382 F.3d 1110, 1128–29 (11th Cir. 2004). The cashing by a

defendant of checks payable to entities controlled by the defendant has been held

to provide sufficient evidence of concealment money laundering because the use of

the account may “cloak [a defendant’s] activities with a semblance of legitimacy.”

See United States v. Hairston, 46 F.3d 361, 375 (4th Cir. 1995).

The jury reasonably found that Naranjo purposefully concealed the source or

21
ownership of funds he obtained fraudulently. The evidence establishes that

Naranjo had tried to conceal his association with the relevant bank accounts and

used these accounts to conduct unusual financial transactions. Naranjo directed the

deposit of funds into bank accounts held by either MRNA or The Loan Shoppe, but

none of these accounts bore Naranjo’s name, either as an individual or as an

individual doing business as MRNA or The Loan Shoppe. About a month after

incorporation, Naranjo removed his name from corporate filings of The Loan

Shoppe. Additionally, Naranjo dissolved MRNA over a year and a half before the

relevant cash withdrawals, and Naranjo’s use of a bank account of a nonexistent

corporation provides further support that he sought to conceal his association with

illegal proceeds.

Naranjo’s signatory status on the accounts and signature on the checks that

provide the bases of the concealment money laundering charges do not affect our

conclusion that the record supports Naranjo’s conviction. Unlike the situation in

Blankenship, where the defendant placed his name on an account for anyone

dealing with the account to see, 382 F.3d at 1128–29, Naranjo did not reveal his

true relationship to the accounts by signing the checks for cash because The Loan

Shoppe and MRNA could authorize anyone to sign checks drawn from the

corporate account. This appeal is more analogous to the circumstances in Garcia-

22
Emanuel, 14 F.3d at 1476–77, and Hairston, 46 F.3d at 374–75, where our sister

circuits upheld convictions of concealment money laundering based on evidence

that the defendants signed checks that were drawn from or payable to bank

accounts that were controlled by the defendants but did not bear the name of the

defendants. The record establishes that Naranjo took efforts to hide his connection

to the fraudulently obtained funds. It is irrelevant that Naranjo left enough

evidence to allow a novice investigator to trace these cash withdrawals to Naranjo

and his wire and mail fraud activities because the statute requires only that

proceeds be concealed, not that they be concealed well.

Evidence that a defendant converted funds into a form that is more difficult

to trace, easier to hide, or less suspicious may also support a conviction for

concealment money laundering. We have upheld convictions for concealment

money laundering or conspiracy to commit concealment money laundering where a

defendant exchanged small-denomination bills for large-denomination bills, United

States v. Farese, 248 F.3d 1056, 1060 (11th Cir. 2001); exchanged cash for

jewelry, United States v. Seher, 562 F.3d 1344, 1365 (11th Cir. 2009); exchanged

cash for cashier’s checks, United States v. Starke, 62 F.3d 1374, 1377, 1384 (11th

Cir. 1995); and invested income from drug sales into a legitimate business, United

States v. Saget, 991 F.2d 702, 713 (11th Cir. 1993). Concealment money

23
laundering prosecutions frequently involve defendants who allegedly converted

cash from illegal activities into less suspicious assets, but the opposite transaction

may also constitute concealment money laundering. A fraudfeasor commits

concealment money laundering by converting documented, yet illegally obtained,

funds into cash for the purpose of impeding the tracing of the funds. “[A]lthough

not dispositive, [evidence of cash withdrawals] does lend greater support to the

jury’s finding that the withdrawals were made with the intent to conceal the

location of the funds for the simple reason that cash cannot be traced.” United

States v. Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010).

A reasonable jury could have inferred that Naranjo made cash withdrawals

so that the funds could not be easily traced to their source. By converting funds

into cash, Naranjo would have been able to spend illegal proceeds without leaving

a paper trail connecting his purchases to his mail fraud and wire fraud. Evidence

that Naranjo withdrew cash supports his concealment money laundering

conviction. The jury had additional justification to convict Naranjo because he

withdrew cash “within one week of the deposits” by investors and “the cash

withdrawals were large.” Id. Cash withdrawals of $5000, $6000, and $20,000

could suggest to a reasonable jury that Naranjo withdrew cash not merely to cover

everyday expenses but to hide the source of the funds and his connection to them.

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The timing of the withdrawals also provides “circumstantial evidence” of the

“intent of concealing the location of the funds.” Id.

The record gives no support to Naranjo’s argument that Carver’s testimony

established that Naranjo withdrew cash from the bank accounts to provide working

capital for The Loan Shoppe stores. Carver testified that he would routinely “go to

the bank, take out X amount of cash, [and] take it to the store” to “keep the check

cashing stores funded with cash.” No evidence established that Naranjo also

cashed checks to supply cash for The Loan Shoppe. Carver testified that The Loan

Shoppe closed its Florida stores by the late summer or early fall of 2003 and

verified that “Naranjo never actually went to Alabama,” but Naranjo made the

$20,000 cash withdrawal from an account of The Loan Shoppe on November 18,

2003. Even if Naranjo presented evidence that established he used the cash for

legitimate purposes, the correct inquiry is whether a reasonable jury could have

convicted Naranjo of concealment money laundering, not whether Naranjo had a

plausible and legitimate explanation for his three large cash withdrawals. The jury

also was entitled to reject Carver’s testimony. See United States v. Hasner, 340

F.3d 1261, 1272 (11th Cir. 2003). The jury’s “finding [relating to credibility] is

binding on this Court” as long as it is supported by sufficient evidence, United

States v. Tate, 586 F.3d 936, 945 (11th Cir. 2009), cert. denied, 131 S. Ct. 634

25
(2010).

We also reject Naranjo’s argument that Johnson demands reversal. In

Johnson, we held that the transfer of funds from a corporate account to a foreign

bank account did not support a conviction of concealment money laundering when

the government had failed to present evidence that the transfer of funds to foreign

bank accounts impeded the tracing of funds. 440 F.3d at 1293 & n.5. This appeal

is distinguishable from Johnson because Naranjo did more than transfer money

between bank accounts. He made large cash withdrawals, and a reasonable jury

could have found that cash is more difficult to trace than funds transferred between

bank accounts. See Dvorak, 617 F.3d at 1024. Naranjo also tried to conceal his

ownership of the funds by hiding his association with the bank accounts.

B. Naranjo’s Jencks Act and Brady Arguments Fail.

Naranjo alleges that Young prepared a report of his investigation and that

the government violated both the Jencks Act, 18 U.S.C. § 3500, and Brady, 373

U.S. 83, 83 S. Ct. 1194, by refusing to provide this report to Naranjo. Naranjo

contends that the correct remedy for the alleged violations of the Jencks Act and

Brady is a new trial, and we construe his pro se motions as requests for such relief.

Naranjo’s argument lacks merit. Naranjo fails to establish that the district

court abused its discretion when it denied Naranjo’s motion for acquittal or for a

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new trial. Naranjo also fails to establish that federal authorities had possession of

such a report as required by both the Jencks Act and Brady, or that the report

would have been exculpatory and material as required under Brady.

Naranjo’s argument that the district court abused its discretion when it

denied his motions for a new trial based on an alleged Jencks Act violation fails

because the record does not establish that federal authorities possessed the report

prepared by Young. The Jencks Act provides that, on a defendant’s motion, a

district court shall “order the United States to produce any statement . . . of the

witness in the possession of the United States which relates to the subject matter as

to which the witness has testified.” 18 U.S.C. § 3500(b). “A statement is ‘in the

possession of the United States’ for Jencks Act purposes if it is in the possession of

a federal prosecutorial agency.” United States v. Cagnina, 697 F.2d 915, 922 (11th

Cir. 1983). Naranjo alleges that Young prepared a report that was included in

investigative findings sent from Alabama authorities to Florida authorities and then

to federal authorities, but the district court found that “the document in question

[was] not in possession of the . . . federal prosecuting authorities.”

The government also did not violate Brady because it did not possess any

report prepared by Young. In Brady, the Court ruled that the Due Process Clause

requires prosecutors to disclose “evidence favorable to an accused . . . where the

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evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196–97. “Three

elements establish a Brady violation: (1) the evidence must be favorable to the

accused, because it is either exculpatory or impeaching; (2) the evidence must have

been suppressed by the State, either willfully or inadvertently; and (3) the evidence

must be material so as to establish prejudice.” Stephens v. Hall, 407 F.3d 1195,

1203 (11th Cir. 2005). “[M]ere speculation or allegations that the prosecution

possesses exculpatory information will not suffice to prove ‘materiality.’” United

States v. Jordan, 316 F.3d 1215, 1252 n.81 (11th Cir. 2003). As with the Jencks

Act, Brady “applies only to information possessed by the prosecutor or anyone

over whom he has authority.” United States v. Meros, 866 F.2d 1304, 1309 (11th

Cir. 1989). “A prosecutor has no duty to undertake a fishing expedition in other

jurisdictions in an effort to find potentially impeaching evidence every time a

criminal defendant makes a Brady request for information regarding a government

witness.” Id.

Naranjo’s argument fails for a second reason: Brady applies only to

exculpatory and impeachment evidence, and Naranjo’s argument that the report

contains exculpatory information is, at best, speculative. Naranjo asserts that

Young’s report would be exculpatory because Young concluded that Naranjo did

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not violate Alabama law, but this argument misconstrues the record. Young

testified that he terminated the investigation as “a matter of resources” because no

“residents of the State of Alabama were participants or had been allegedly harmed

by The Loan Shoppe” and referred the matter to Florida authorities. Young did not

testify about whether Naranjo violated Alabama law. Naranjo submitted a

summary report, allegedly prepared by Florida investigators, that suggests that

Florida authorities shared Young’s investigative findings with Grunwald, but this

report contains no evidence that any of Young’s documents would be exculpatory.

Naranjo argues that United States v. Antone, 603 F.2d 566 (5th Cir. 1979),

requires the government to disclose Brady material possessed by state

investigators, but we disagree. Antone held that Brady required federal

prosecutors to disclose the payment of a witness’s attorney fees by a state when

federal and state authorities “pooled their investigative energies to a considerable

extent,” id. at 569, and “the state investigators functioned as agents of the federal

government under the principles of agency law,” id. at 570. Knowledge of

information that state investigators obtain is not imputed for Brady purposes to

federal investigators who conduct a separate investigation when the separate

investigative teams do not collaborate extensively. See Moon v. Head, 285 F.3d

1301, 1310 (11th Cir. 2002) (holding that knowledge obtained by investigators in

29
one state is not imputed to investigators that conduct a separate investigation in

another state). Because Grunwald conducted a federal investigation separate from

Young’s investigation, the government did not possess Young’s report for Brady

purposes.

C. Naranjo’s Arguments About Summary Evidence Fail.

Naranjo argues for the first time on appeal that the admission of summary

evidence violated his rights under the Due Process and Confrontation Clauses of

the United States Constitution. Naranjo argues that the summary evidence that the

government presented in charts was inaccurate and violated his right to due

process. Naranjo also argues that the introduction of summary evidence deprived

him of his Sixth Amendment right to challenge the accuracy of this evidence

through cross-examination, as articulated in Davis v. Alaska, 415 U.S. 308, 94 S.

Ct. 1105 (1974), and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354

(2004), because the summary evidence concerned investments made by investors

who did not testify.

Naranjo’s due process argument fails. “[T]his Court will permit the use of

summary charts incorporating certain assumptions ‘so long as supporting evidence

has been presented previously to the jury . . . and where the court has “made it

clear that the ultimate decision should be made by the jury as to what weight

30
should be given to the evidence.”’” United States v. Richardson, 233 F.3d 1285,

1294 (11th Cir. 2000) (alteration in original) (quoting United States v. Francis, 131

F.3d 1452, 1458 (11th Cir. 1997) (quoting United States v. Means, 695 F.2d 811,

817 (5th Cir. 1983))). “[W]here the defense has the opportunity to cross-examine a

witness concerning the disputed issue and to present its own version of the case,

‘the likelihood of any error in admitting summary evidence diminishes.’” Id.

(quoting United States v. Norton, 867 F.2d 1354, 1363 (11th Cir. 1989)). The

introduction of charts as summary evidence by the government was consistent with

Richardson. The government admitted into evidence the checks and bank records

on which the summary charts were based, and Naranjo cross-examined Grunwald

and elicited an admission that the charts were based on some assumptions. The

district court later instructed the jury to refer to the charts “only as an aid . . . and

not for the truth.” Naranjo did not suffer a violation of his right to due process.

Naranjo cites United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995), in

support of a second due process argument, but that decision is irrelevant to the

issue at hand. In Alzate, we ordered a new trial due to a Brady violation. Id. at

1110–11. Naranjo does not argue that the government violated Brady by

introducing summary evidence.

Naranjo’s Confrontation Clause claim also fails. The Sixth Amendment

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affords criminal defendants an opportunity to cross-examine witnesses who present

testimonial evidence. Crawford, 541 U.S. at 68, 124 S. Ct. at 1374. A statement is

testimonial if “made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.”

Id. at 52, 124 S. Ct. at 1364 (internal quotation marks omitted). See also United

States v. Caraballo, 595 F.3d 1214, 1228 (11th Cir. 2010) (quoting United States v.

Baker, 432 F.3d 1189, 1203 (11th Cir. 2005)). The district court admitted into

evidence the bank records and checks that provided the basis for the summary

charts without any objection from Naranjo. These bank records and checks were

admissible under the business records exception to the hearsay rule, Fed. R. Evid.

803(6). Business records are not testimonial. Crawford, 541 U.S. at 56, 124 S. Ct.

at 1367 (discussing “statements that by their nature were not testimonial—for

example, business records”); United States v. Morgan, 505 F.3d 332, 339 (5th Cir.

2007); United States v. Feliz, 467 F.3d 227, 233–34 (2d Cir. 2006); United States

v. Baker, 458 F.3d 513, 519–20 (6th Cir. 2006). Summary evidence also is not

testimonial if the evidence underlying the summary is not testimonial. See United

States v. Jamieson, 427 F.3d 394, 411–12 (6th Cir. 2005). Because the

Confrontation Clause only provides a right to cross-examination of testimonial

statements, the district court did not plainly err by admitting summary evidence

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based on bank records and checks.

D. The District Court Did Not Err When It Enhanced Naranjo’s Sentence Based
on Estimates of the Number of Victims and Total Losses.

Naranjo argues that the district court erred and imposed an unreasonable

sentence when it enhanced Naranjo’s sentence based on estimations of the number

of victims and total amount of losses, but this argument fails. “For sentencing

purposes, the loss amount does not need to be precise and may only be a

reasonable estimate of the loss based on the available information.” Woodard, 459

F.3d at 1087. Naranjo fails to cite any portion of the record that suggests that the

district court accepted an erroneous estimate of the number of victims and total

loss, nor does he contest the assertion of the government that Grunwald based his

estimates largely on bank records. The record instead establishes that the district

court rejected the loss calculation provided in the presentence investigation report

and, based on Ostroman’s testimony, lowered the loss estimate. The district court

did not err when it relied at sentencing on estimates of the number of victims and

amount of losses. Naranjo’s sentence, within the guidelines range, is reasonable.

IV. CONCLUSION

We AFFIRM Naranjo’s convictions and sentence.

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