[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 26, 2007
No. 05-15687 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-60204-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS SUAREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 26, 2007)
Before PRYOR and FAY Circuit Judges, and STEELE,* District Judge.
PER CURIAM:
*
Honorable William H. Steele, United States District Court for the Southern District of
Alabama, sitting by designation.
Juan Carlos Suarez appeals his convictions and sentence for bank fraud, mail
fraud, and conspiracy to commit bank and mail fraud. A jury found that Suarez
prepared fraudulent appraisals as part of an illegal land-flip scheme. The district
court imposed a sentence of 41 months of imprisonment, three years of supervised
release, a $700 assessment, and restitution, jointly and severally with the other
members of the scheme, in the amount of $1,051,537.20. Suarez argues that the
evidence was insufficient to sustain his convictions and that two evidentiary
rulings require a new trial. He also argues that his sentence violates the Sixth
Amendment, under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738
(2005), and that the amount of restitution violates the Excessive Fines Clause of
the Eighth Amendment. We affirm.
I. BACKGROUND
The evidence presented at trial established that between June 30, 1998, and
August 27, 1999, Suarez participated in a series of illegal land-flip transactions
with Doyle Aaron and three others. Aaron used a portion of the loan proceeds
from the second half of the flip transactions to pay for the first half of the
transactions, and then kept the remainder for himself. When Aaron failed to make
loan payments, the loans went into default and his lenders lost approximately $1
million.
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The FBI began investigating Aaron in April 2003. It determined that Aaron
had orchestrated approximately 26 land-flip transactions and Suarez prepared
appraisals for at least 15 of them, including the first one. The appraisals contained
inflated values and stated that the middleman was the owner of the property even
though the public records did not disclose that individual as the owner. The
middleman listed as the owner was often Katja Fort, Aaron’s girlfriend.
Suarez prepared many of the fraudulent appraisals while working at Excel
Appraisal, Inc. As part of the employment arrangement, Suarez was required to
remit a portion of any appraisal fees he collected to Excel. Because Suarez was a
trainee-appraiser, any appraisal he completed had to be signed by a certified
appraiser. William Rutan, a certified appraiser who worked at Excel, signed seven
of the 15 appraisals Suarez prepared for Aaron.
On August 19, 2004, Suarez was indicted in the Southern District of Florida.
Count 1 charged that Suarez, Aaron, and a few others conspired to commit bank
and mail fraud by submitting false mortgage loan applications, title commitments,
and related documents to banks and lending institutions. Counts 2-4 charged bank
fraud on the ground that the defendants obtained mortgage loans based on
materially false and fraudulent documents. Counts 5-8 charged mail fraud on the
ground that the defendants devised a scheme to defraud lending institutions which
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contemplated the use of the mails. Finally, Count 6 charged Suarez with money
laundering. The indictment alleged that Suarez’s role in the charged offenses was
that, in his capacity as a trainee-appraiser, he overvalued properties and
misrepresented the owners of the property.
Before trial, Suarez filed a motion to dismiss the indictment for pre-
indictment delay. He argued that appraisers are required to retain their files for
only five years. The alleged fraudulent activity occurred in 1998 and 1999, but
Suarez was not indicted until 2004. Suarez argued that he had destroyed files that
could prove his innocence. The magistrate judge who initially considered the
motion stated that Suarez knew he was under investigation in 2001. The district
court denied the motion.
At trial, the government introduced evidence that Suarez knowingly
prepared the false appraisals. Katja Fort testified that Aaron often argued on the
phone with Suarez and told Suarez what values to put in the appraisals. The
government also produced faxes that Aaron had sent to Suarez in which Aaron told
Suarez what to put into the appraisals. William Rutan testified that Suarez worked
from home and would often bring a completed appraisal to him at the end of the
work day without the necessary supporting documents and urge Rutan to sign it
because the closing was approaching. Suarez would assure Rutan the he had the
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documents at home. Because Suarez was an experienced appraiser, Rutan did not
check the work.
The government also introduced evidence of a past offense committed by
Suarez. Marcelino Vega, who owned Excel, testified that Suarez failed to remit to
Excel a portion of the fee he obtained from several of the appraisals completed for
Aaron. Vega ultimately terminated Suarez for failing to remit these payments, and
Excel sued Suarez to recover the money.
At the close of the case-in-chief of the government, Suarez moved for a
judgment of acquittal on all counts. He argued that the government had failed to
prove he knowingly placed false information in the appraisals. He maintained that
Aaron and Fort had made changes to the appraisals he submitted to them. The
motion was granted as to the money laundering count but denied as to the rest.
In his defense, Suarez argued that he had not prepared fraudulent appraisals,
but instead had prepared accurate appraisals that were subsequently altered by
Aaron. He introduced evidence that Aaron had obtained a copy machine and had
altered some documents sent to one of the lenders. He argued that the government
failed to introduce any evidence showing that he agreed to enter into a fraudulent
scheme.
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During his defense, Suarez sought to introduce a handwritten note that had
been found in Aaron’s house. The note mentioned the altering of appraisals but
did not say to whom it was addressed or by whom it had been written, or whether it
was merely a “to do” list. Suarez sought to introduce the note in support of his
theory that he prepared accurate appraisals that Aaron then altered. The
government objected to the introduction of this note on the ground of relevance,
and the court sustained the objection on the ground that the document was hearsay.
At the close of all the evidence Suarez again moved for a judgment of
acquittal. Suarez argued that the government had not proved that he received the
fax transmissions Aaron attempted to send to him. Suarez also disputed that the
signatures on the appraisals were his. The court again denied Suarez’s motion.
The jury convicted Suarez on all of the remaining counts.
The district court sentenced Suarez to 41 months of imprisonment and
imposed restitution, jointly and severally among all of the conspirators, in the full
amount of the loss attributable to the conspiracy–$1,051,537.20. The court
enhanced Suarez’s sentence under guidelines section 2F1.1(b)(1)(L), which
requires greater enhancements for higher monetary losses, based on a loss of
$526,139.55, the amount attributable to the appraisals prepared by Suarez himself.
The district court added a 2-level enhancement for use of a special skill. Suarez
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objected that he was only a trainee-appraiser who had to have his work reviewed
by a certified appraiser, and the special skill enhancement should not apply. The
court overruled the objection and found that serving as a trainee-appraiser required
a certain level of experience and professional qualifications.
Suarez filed a post-judgment motion for acquittal or a new trial. He again
challenged the sufficiency of the evidence supporting his convictions and argued
that the district court erred in excluding the note found in Aaron’s house and in
allowing the testimony by Vega about his past offense. That motion was denied.
II. STANDARDS OF REVIEW
This appeal involves several standards of review. Whether sufficient
evidence supports a conviction is a question of law we review de novo. United
States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). “[W]e must decide whether
based on the evidence presented in the light most favorable to the government, a
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
United States v. Ellington, 348 F.3d 984, 989 (11th Cir. 2003). The decision of a
district court not to dismiss an indictment for pre-indictment delay is reviewed for
abuse of discretion. United States v. Foxman, 87 F.2d 1220, 1222 (11th Cir.
1996). The decisions of a district court on questions of admissibility are reviewed
for abuse of discretion. United States v. Schlei, 122 F.3d 944, 980 (11th Cir.
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1997). The application by the district court of the sentencing guidelines is
reviewed de novo, and its factual findings for clear error. United States v.
Delgado, 56 F.3d 1357, 1363 (11th Cir. 1995). Objections to a sentence raised for
the first time on appeal are reviewed for plain error. United States v. Obasohan, 73
F.3d 309, 310-11 (11th Cir. 1996).
III. DISCUSSION
Suarez raises six arguments on appeal. All fail. We discuss each issue in
turn.
A. There is Sufficient Evidence to Uphold Suarez’s
Convictions on Conspiracy, Bank Fraud, and Mail Fraud.
Suarez argues the evidence was insufficient to sustain his convictions for
conspiracy, bank fraud, and mail fraud. We disagree. When we view the evidence
in the light most favorable to the government, we conclude that the jury reasonably
could have convicted Suarez on all counts.
1. Conspiracy to Commit Bank and Mail Fraud
To sustain a conviction for conspiracy under 18 U.S.C. section 371, the
government must prove (1) the existence of an agreement to achieve an unlawful
objective; (2) the defendant’s knowing and voluntary participation in the
agreement; and (3) the commission of an act in furtherance of the agreement.
United States v. Cure, 804 F.2d 625, 628-30 (11th Cir. 1986). Suarez argues that
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the government failed to prove that he knowingly entered into a conspiracy to
commit bank and mail fraud. Because the essential nature of a conspiracy is
secrecy, the existence of the agreement may be proved based on circumstantial
evidence. United States v. Browning, 723 F.3d 1544, 1556 (11th Cir. 1984). The
evidence need establish only that the defendant knew the essential objective of the
conspiracy; it matters not that he was ignorant of its details or played only a minor
role in the overall scheme. United States v. Walker, 720 F.2d 1527, 1528 (11 th Cir.
1983). The government need provide evidence only that a defendant conspired to
commit a single object of the conspiracy. See Griffin v. United States, 502 U.S.
46, 112 S. Ct. 466 (1991).
There is sufficient circumstantial evidence to sustain the conspiracy
conviction. Katja Fort testified that Aaron and Suarez argued about the appraisal
values, and the government produced faxes Aaron sent to Suarez instructing him to
put certain values in the appraisals. Suarez contends the government never proved
he received those faxes, but Suarez does not dispute that he had a one-year
business relationship with Aaron. The jury was entitled to find that Aaron knew
how to get faxes to Suarez and that Saurez received the faxes. Although Suarez
contends that his arguments over the phone with Aaron establish he had not
entered into any kind of agreement with Aaron, the jury was entitled to find that
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these disagreements reflected mutual participation in a larger plan to which the
disagreements related. If Aaron had repeatedly, by phone and fax, asked Suarez to
participate in an illegal scheme, and Suarez had declined, it is unlikely Suarez
would have needed to justify, by argument, his desire not to participate.
2. Bank and Mail Fraud
Suarez argues that it was impossible for him to actually commit bank fraud
because he was unable to submit an appraisal on his own. He also argues that he
could not have intended to commit bank fraud because he knew his work would be
reviewed and any efforts to commit fraud would be detected by the reviewer. A
defendant can be found guilty of bank fraud if his conduct was designed to deceive
a federally chartered or insured financial institution into releasing property with the
intent to expose it to actual or potential loss. See United States v. Key, 76 F.3d
350, 353 (11th Cir. 1996).
A reasonable jury could have found that Suarez committed bank fraud.
William Rutan testified that Suarez often asked him to sign off on an appraisal at
the last minute, without providing the requisite supporting documentation. A jury
could find that this was conduct designed to overcome the limitations of Suarez’s
trainee status, for the purpose of deceiving the banks into approving loans that
were disproportionate to the fair market value of the properties in question.
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Suarez raises no specific challenges to his mail fraud convictions. He seems
to argue that, because the evidence does not support his bank fraud convictions, it
does not support the attendant mail fraud convictions. We have concluded,
however, that the evidence is sufficient to support the bank fraud convictions.
Because Suarez raises no further challenges to his mail fraud convictions, we
address them no further.
B. The District Court Did Not Abuse Its Discretion When It
Refused to Dismiss the Indictment for Pre-Indictment Delay.
Suarez argues that the indictment should have been dismissed for pre-
indictment delay, because more than five years passed between the preparation of
some of the appraisals and the day he was indicted. Suarez argues that, although
the statute of limitations is the primary defense against pre-indictment delay, the
Due Process Clause also protects a defendant against pre-indictment delay. This
argument fails.
The Due Process Clause allows for dismissal of an indictment for pre-
indictment delay when the defendant establishes that the delay was (1) the product
of a deliberate act by the government to gain a tactical advantage, and (2) caused
the defendant actual, substantial prejudice. United States v. Marion, 404 U.S. 307,
324, 92 S. Ct. 455, 466 (1971). Suarez established neither element. There is no
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allegation that the delay was deliberate, and because Suarez knew he was under
investigation in 2001, there was no prejudice to Suarez.
C. The District Court Did Not Abuse Its Discretion When
It Refused to Admit Into Evidence the Handwritten Note
Found at Aaron’s Residence.
Suarez argues that the handwritten note which the district court refused to
enter into evidence on the ground of hearsay should have been admitted under the
coconspirator exception to the hearsay rule. See Federal Rule of Evidence
801(d)(2)(E). Suarez cannot invoke this rule. The rule is one of several exceptions
that fall under the broader heading, “Admissions of a Party Opponent.” The
government is the party opponent to Suarez, and the note is not an admission of the
government. Nor are we convinced that the note “bore persuasive assurances of
trustworthiness” and was admissible hearsay. See Chambers v. Mississippi, 410
U.S. 284, 302, 93 S. Ct. 1038, 1049 (1972).
D. The District Court Did Not Abuse Its Discretion When
It Admitted Rule 404(b) Evidence Regarding Suarez’s
Prior Theft Offense.
Suarez argues that the testimony of Marcelino Vega about Suarez’s failure to
remit to Excel portions of the fees he received from Aaron was impermissible
character evidence under Federal Rule of Evidence 404(b) for which he received
no notice. This argument fails. Evidence falls outside the ambit of 404(b) when it
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is: “(1) an uncharged offense which arose out of the same transaction or series of
transactions as the charged offense, (2) necessary to complete the story of the
crime, or (3) inextricably intertwined with the evidence regarding the charged
offense.” United States v. Baker, 432 F.3d 1189, 1205 n.9 (11th Cir. 2005)
(emphasis added). Vega testified that Suarez failed to remit a portion of the fees he
received for preparing appraisals for Doyle Aaron. His testimony was about “an
uncharged offense which arose out of the same transaction or series of transactions
as the charged offense,” and was admissible without prior notice to Suarez.
E. The District Court Did Not Violate Booker When It
Enhanced Suarez’s Sentence Based on Special Skill.
Suarez argues that the special skill enhancement violated Booker because the
jury never found, and Suarez never admitted, that he possessed a special skill, and
that, after Booker, judges may not enhance sentences based on facts not found by a
jury or admitted by the defendant. Suarez misunderstands Booker, which held that
a judge could not enhance a sentence based on judicially-found facts if the
guidelines are mandatory. The district court did not apply the guidelines as
mandatory when it sentenced Suarez; the court reviewed the 3553(a) factors before
imposing a sentence “at the low end of the advisory guideline range.”
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F. The Amount of Restitution is Not an Excessive Fine in
Violation of the Eighth Amendment.
Finally, Suarez objects to the amount of restitution imposed by the district
court as excessive under the Eighth Amendment. The court imposed restitution on
all of the conspirators, jointly and severally, for $1,051,537.20, the entire amount
of the loss. When calculating Suarez’s sentence, the court found that Suarez was
only responsible for approximately half of the loss, and enhanced his sentence
under 2F1.1(b)(1)(L) accordingly. Suarez argues that the amount of restitution is
grossly disproportionate to the gravity of his offense and violates the Excessive
Fines Clause. See United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028
(1998). This argument fails.
When a defendant is convicted of conspiracy, the district court can hold him
responsible for the entire amount of the loss attributable to the conspiracy. United
States v. Rayborn, 957 F.2d 841, 844 (11th Cir. 1992). A district court can
likewise order that restitution be paid in the full amount of the loss of the
conspiracy. See United States v. Dickerson, 370 F.3d 1330, 1339 (11th Cir. 2004).
When it enhanced Suarez’s sentence under guidelines section 2F1.1(b)(1), the
district court chose to be lenient and enhance Suarez’s sentence based only on the
amount of loss attributable to the appraisals he prepared. This act of leniency does
not allow us to conclude that the restitution was excessive.
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IV. CONCLUSION
Suarez’s convictions and sentence are
AFFIRMED.
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