[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 20, 2012
No. 10-15099
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:10-cr-20152-DMM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE L. COLON,
Defendant-Appellant.
________________________
No. 10-15212
________________________
D.C. Docket No. 1:10-cr-20152-DMM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS CANO,
Defendant-Appellant.
________________________
No. 10-15303
________________________
D.C. Docket No. 1:10-cr-20152-DMM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBYN L. COLON,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(April 20, 2012)
Before DUBINA, Chief Judge, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Appellants Jose L. Colon, Robyn L. Colon, and Carlos Cano appeal their
convictions for conspiracy to commit bank fraud under 18 U.S.C. § 1349 and for
substantive bank fraud under 18 U.S.C. § 1344(1) and (2). Each Appellant
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contends, inter alia, that the district court erred at trial in sustaining Maria
Lozada’s invocation of her privilege against self-incrimination, and similarly, in
denying the Appellants’ request that the court compel Lozada to appear as the
court’s witness. Carlos further argues that the court abused its discretion by
allowing the government to impeach his testimony with his 12-year-old conviction
for writing bad checks.1
I. BACKGROUND
In September 2006, Carlos Cano met Maria Lozada. Lozada, who worked
for an attorney, asked Carlos to allow her to use his identity and credit history to
purchase properties that they could “flip” for a higher resale price. Lozada offered
him $5,000 up front for the use of his credit, in addition to a portion of future
resale profits. Carlos gave Lozada his social security card, a copy of his driver’s
license, as well as bank account statements. Lozada completed loan applications
and other documents in Carlos’s name using false information concerning Carlos’s
intent to occupy the homes as his primary residence, his employment status, as well
as his monthly income. Carlos signed many documents at Lozada’s direction
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Additionally, Robyn challenges the court’s refusal to give a missing witness instruction
concerning Lozada. Robyn further argues that the jury instructions constructively amended the
indictment. Jose challenges the court’s denial of his Rule 29 motions; alternatively, he adopts
Robyn’s arguments. Carlos alleges cumulative trial error as well as error at sentencing in the
calculation of fraud loss and the imposition of the forfeiture judgment against him.
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without reading anything contained within. In some instances, Lozada signed or
initialed documents on his behalf.
Carlos introduced Lozada to his co-worker, Robyn Colon. Lozada offered to
pay Robyn $5,000 each time Lozada used Robyn’s identity and credit for an
investor to purchase real estate. Lozada told Robyn that the investor –not Robyn–
would actually make mortgage payments. Robyn and her husband, Jose, gave their
personal information to Lozada who applied for loans on behalf of the Colons
using false income and employment information. Additionally, many of the
Colons’ mortgage applications falsely stated that the properties were for their
primary, personal residence. Like Carlos, the Colons did not read any documents
that they signed, and sometimes Lozada signed or initialed documents on behalf of
the Colons. Neither Robyn nor Jose ever saw the properties purchased in their
names or learned anything about the actual investors.
Eventually, the investors stopped making loan payments as real estate
market conditions declined. Of course, the banks pursued the Appellants. When
Robyn and Jose sought Lozada’s assistance, she would not respond to them. The
Colons, understanding that they could be held criminally liable, voluntarily told
government agents about their participation in the scheme. The Secret Service
eventually opened an investigation, and in March 2010, Lozada, the Colons, and
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Carlos were indicted for one count of conspiracy to commit bank fraud as well as
numerous counts of substantive bank fraud.
Lozada cooperated with the prosecutors and entered a plea agreement on
June 15, 2010. Around the same time, the government gave defense counsel a
report of an interview with Lozada which stated that Lozada admitted to initialing
and signing some of the mortgage documents using Robyn’s name. At the July
2010 trial, the Government chose not to call Lozada to testify. The Appellants then
wished to call Lozada as a defense witness, hoping that Lozada would testify that
she signed many of the documents without the Appellants’ knowledge or consent
and that she never told the Appellants that the transactions were illegal. Lozada’s
attorney, however, informed the Appellants’ attorneys that Lozada, who had not
yet been sentenced, intended to invoke her Fifth Amendment right against self-
incrimination if called as a defense witness. Thus, the Appellants never called
Lozada. The district court denied the Appellants’ request that the court order
Lozada to testify as the court’s witness, citing both Lozada’s established privilege
against self-incrimination prior to sentencing as well as the coercive effect that the
court’s order might have on Lozada.
While Jose chose not to testify, Robyn and Carlos both testified in their own
defense. Each of them acknowledged some signatures among the mortgage and
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loan documents as their own, while they denied signing other documents. Each of
them further testified that they believed that their participation in the purchase of
the properties was legitimate and legal. Prior to trial, the Government provided
written notice of its intent to use Carlos’s 1998 conviction for passing bad checks
if Carlos testified in his defense at trial. The court overruled Carlos’s objection to
the admission of the 1998 conviction. Consequently, when Carlos testified, he
admitted on direct examination that he pled guilty to passing bad checks in 1998.
The jury found each Appellant guilty of conspiracy to commit bank fraud
and at least one substantive bank fraud charge.
II. DISCUSSION
After carefully considering all of the arguments, we summarily affirm the
convictions of each Appellant, but we specifically address two arguments that
warrant discussion.
A. Lozada’s invocation of her Fifth Amendment privilege
The Appellants collectively argue that the district court should have
compelled Lozada to testify as either a defense or court witness because she
received immunity for her cooperation with the government, and thus had no right
to refuse to testify. The Appellants posit that if Lozada had testified, she would
have bolstered their defense of good faith, and therefore, her refusal to testify
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violated their Sixth Amendment right to compulsory process, as well as their Fifth
Amendment right to present a complete defense.
We review de novo a district court’s ruling on the invocation of privilege
against self-incrimination. United States v. Hernandez, 141 F.3d 1042, 1049 (11th
Cir. 1998). In the present case, the Appellants argue Lozada understood that as
part of her cooperation with the Government and in exchange for a more favorable
sentence, the court could compel her to testify as a government witness
notwithstanding her privilege against self-incrimination. Because a court can
compel a cooperating criminal to testify for the government in exchange for
immunity (see Kastigar v. United States, 406 U.S. 441, 453, 92 S. Ct. 1653, 1661
(1972)), the Appellants argue that they also had a right to ask the court to compel
testimony from their co-defendant. While the Appellants allege that Lozada
entered into an immunity agreement with the Government, this agreement was not
admitted into the court’s record. Nevertheless, the Appellants insist that any
incriminating testimony elicited from Lozada would have already been known to
the Government, and so Lozada would not have been subjected to any hazard of
self-incrimination.
However, at the time of the trial, Lozada had only entered into a plea
agreement; she had not been sentenced yet. We have held, and the Supreme Court
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has agreed, that a criminal defendant absolutely maintains her right to assert the
privilege against self-incrimination after entering into a plea agreement but prior to
sentencing. Mitchell v. United States, 526 U.S. 314, 321, 119 S. Ct. 1307, 1311
(1999); United States v. Kuku, 129 F.3d 1435, 1438 (11th 1997) (per curiam)
(reasoning that compelled testimony could possibly impact a defendant’s “as yet
undetermined sentence”). Thus, Lozada maintained her right to invoke her
privilege against self-incrimination until her “sentence [was] fixed and the
judgment of conviction [became] final.” Mitchell, 526 U.S. at 326, 119 S. Ct. at
1314. Lozada’s privilege existed at the time of the Appellants’ trial in spite of any
governmental grant of immunity alleged to exist in this case.
Alternatively, even if the district court erred in its ruling concerning
Lozada’s Fifth Amendment rights, the error was harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967).
The Appellants’ argument that their own testimony was inadequate is
unpersuasive. Any testimony that the Appellants hoped to elicit from Lozada was
admitted or could have been admitted through the Appellants’ own testimony
concerning what documents they did and did not sign, as well as what Lozada
communicated to them, and how those communications affected their state of mind
(i.e., their criminal intent). Accordingly, we conclude that the district court
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committed no error in sustaining Lozada’s invocation of her privilege against self-
incrimination and in denying Appellants’ request that the court compel her to
appear as the court’s witness.
B. Carlos’s prior conviction and impeachment under Rule 609(b)
Carlos argues that he was unfairly prejudiced by the admission of his 12-
year-old conviction for passing bad checks. We review the district court’s decision
to admit evidence of prior convictions under Federal Rule of Evidence 609 for
abuse of discretion. United States v. Pritchard, 973 F.2d 905, 908 (11th Cir.
1992). Rule 609(a)(1)(B) requires that evidence of a felony criminal conviction
“must be admitted in a criminal case in which the witness is a defendant, if the
probative value of the evidence outweighs its prejudicial effect to that defendant.”
Rule 609(b) limits admission of a conviction “if more than [ten] years have passed
since the witness’s conviction or release from confinement for it, whichever is
later.” If the conviction is more than ten years old, then it is admissible only if its
probative value substantially outweighs its prejudicial effect, and the proponent
gives the adverse party written notice of the intent to admit the conviction so that
the adverse party has an opportunity to contest admission. Id.
Carlos’s 1998 conviction carried a ten-year suspended sentence that lasted
until 2008. A suspended sentence is effectively a form of probation, as the felon is
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not incarcerated unless he commits another crime or violates a court-imposed
condition. See BLACKS LAW DICTIONARY (9th ed. 2009). At least one circuit has
held that a period of probation or parole constitutes “confinement” under Rule
609(b). See United States v. Gaines, 105 F. App’x 682, 695 (6th Cir. 2004),
vacated on other grounds by Gaines v. United States, 543 U.S. 1114, 125 S. Ct.
1090 (2005). However, other circuits have reached the opposite result. See United
States v. Rogers, 542 F.3d 197, 198 (7th Cir. 2008); United States v. Daniel, 957
F.2d 162, 168 (5th Cir. 1992) (per curiam). We have apparently not taken a
position on this question. However, this case does not require us to do so, because
Carlos’s 1998 conviction was relevant, probative, and not unfairly prejudicial.
In determining whether to admit a conviction under Rule 609(b), we
consider the impeachment value of the prior conviction, the passage of time and
the witness's conduct since the conviction, the similarity between the convicted
conduct and the charged crime, the importance of the witness’s testimony, and the
centrality of the witness’s credibility. Pritchard, 973 F.2d at 908–09. In Carlos’s
case, he put his criminal intent in issue, testifying that he did not intend to
participate in illegal activity. Carlos’s bad check conviction involved a similar
mens rea, intent to defraud, as the bank fraud and conspiracy charges.
Furthermore, the convicted conduct and the charged bank fraud offense both
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involved Carlos’s signature on documents by which he misrepresented his ability
to meet his financial obligations. Moreover, the Government had a strong case
against Carlos for bank fraud, but only circumstantial evidence of his criminal
intent. For all of these reasons, the Government’s admission of the prior
conviction was necessary to impeach Carlos and was not unfairly prejudicial.
Thus, we conclude that the district court did not abuse its discretion in allowing the
Government to admit the 12-year-old conviction pursuant to Federal Rule of
Evidence 609(b).
III. CONCLUSION
For the foregoing reasons, we affirm the Appellants’ conspiracy and bank
fraud convictions
AFFIRMED.
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