United States v. Mario Gracia

272 F.3d 866, 2001 U.S. App. LEXIS 24816, 2001 WL 1457039
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 19, 2001
Docket00-2946
StatusPublished
Cited by41 cases

This text of 272 F.3d 866 (United States v. Mario Gracia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mario Gracia, 272 F.3d 866, 2001 U.S. App. LEXIS 24816, 2001 WL 1457039 (7th Cir. 2001).

Opinion

HARLINGTON WOOD, JR., Circuit Judge.

Mario Gracia (“Gracia”) appeals his jury conviction and sentencing on counts of conspiracy to commit bank fraud under 18 U.S.C. §§ 371 & 1344, bank fraud under 18 U.S.C. § 1344, wire fraud under 18 U.S.C. § 1343, and conspiracy to commit money laundering under 18 U.S.C. § 1956(h). We have jurisdiction under 28 U.S.C. § 1291, and we affirm both the conviction and sentence.

I. BACKGROUND

Because most of Gracia’s arguments are challenges to the factual findings and sufficiency of the evidence, the facts, as set forth in the trial transcript, are presented *869 in detail. In 1995, a group of approximately fifteen inmates incarcerated at the federal penitentiary in Greenville, Illinois devised and implemented an extensive check kiting scheme. The scheme was masterminded by prisoner Ernie Hill and included Jesus Bonillas. Unable to conduct the bank transactions themselves, Hill and the inmates recruited numerous friends and relatives outside of the prison. Hill sent blank business checks to his half-brother Michael Ochoa, who then filled out the checks which were usually drawn on the account of a closed or fictitious mortgage company. The checks, most written for tens of thousands of dollars, were then sent directly to various banks for deposit into the personal bank accounts of individuals designated by Hill or other co-conspirators.

Most of the personal bank accounts were ones that had not been recently opened and were in good standing. The account holders were carefully instructed when to withdraw funds. Hill or a co-conspirator would wait until the worthless check was deposited, then allow a certain amount of time for the check to be posted. A posted check makes the funds available in the account but has not yet been honored (or, in this case, always declined) by the bank on which it was drawn. The account holder was instructed to withdraw money during this crucial period before the check bounced. The money was then split between Hill, Ochoa, and other participants. The success of the scheme greatly depended on precision timing, which necessitated three-way calls to eo ordinate the withdrawals. Gracia’s brief states that losses to the banks totaled approximately $430,000.

Bonillas, who was married to Gracia’s sister (who was also involved in the scheme), recruited Gracia. Gracia contacted his brother Frank (“Frank”) 1 about participating. Both Gracia and Frank resided in Tucson, Arizona. Frank was instructed by Gracia to come to Gracia’s home in order to take a telephone call from Bonillas, who offered to place a certain amount of money in Frank’s bank account to be disbursed to other parties as directed by Bonillas, with Frank keeping a certain percentage. Although Bonillas told Frank the money to be deposited was money owed to himself and other inmates, Frank testified that he believed almost from the start that this was a fraudulent scheme and was convinced it was fraud by the time he participated in the first transaction. Two checks were eventually deposited in Frank’s account, one for $20,300 and one for $15,000. Frank was told by Bonillas to withdraw $18,000 and to purchase two cashier’s checks for $5,000 made payable to Luisa Cardenas. At that same time, Bonillas agreed that Frank could take $3,000 of the money to purchase a cashier’s check made payable to Frank’s mortgage company. Bonillas also instructed Frank to give $3,000 to Gracia.

Frank sent the check to his mortgage company but two days later the mortgage company called to tell him the bank would not honor the check. When this occurred, Frank went to complain to his brother. Gracia placed a call to Bonillas from his home. Frank spoke with Bonillas and threatened to go to the authorities about the scheme if Bonillas did not give him $3,000. Bonillas then asked to speak to Gracia, who had remained in the room during the call. After speaking to Bonil-las, Gracia left the room, returned, and handed Frank $3,000 in cash. Several days after a second fraudulent deposit had been made in Frank’s account, the bank closed his account.

*870 The two cashier’s checks for $5,000 were sent to Luisa Cardenas. 2 Cardenas met Hill sometime in 1989-90, when Hill and her brother were incarcerated in the federal prison in San Pedro, California. Shortly after, she began “doing favors” for Hill by setting up three-way phone calls and receiving money from Western Union wire transfers. Sometime in 1998-94, she also began writing fraudulent checks for Hill.

Cardenas received the two $5,000 checks sent by Frank, but testified that she refused to cash them because her name would then become part of the paper trail and that it would be too dangerous and she might get caught. Gracia flew to Los Angeles to meet Cardenas. At the airport, Cardenas had a telephone conversation with Hill, confirming that Gracia had arrived to pick up the two checks. Cardenas testified that Gracia questioned her about how the operation worked. She told him that Hill arranged for money to be deposited into an account, then Hill would tell him to withdraw a certain amount and Gracia would get to keep half of the total withdrawal. Gracia asked if “anybody [had] gotten caught, anybody gotten in trouble.” She told him that as far as she knew, “no one had gotten in trouble or caught.”

Upon his return to Tucson, Gracia attempted unsuccessfully to cash the two cashier’s checks. He went to a branch bank where a relative-by-marriage worked as a service manager. This relative testified that she refused to cash the two checks because they were not made out to Gracia nor were they endorsed over to him. The original uncashed checks were submitted as evidence at trial.

In August of 1995, Gracia also went to his nephew Phillip Mota and asked Mota to send money to someone not known to Mota. Gracia drove Mota to Western Union and gave Mota approximately $5,000, with $200 to pay for the wiring fees. While Gracia waited in the car, Mota was instructed to send a $5,000 wire transfer to a Maria Rolon. 3 Gracia gave Mota $75 for his help. Rolon, who had been recruited by Hill, testified that she received several checks like the one from Mota, totaling approximately $60,000. She stated that she kept about $10,000 out of that total and forwarded the rest to various names as instructed by Hill.

Also in August, Miguel Jimenez, an inmate at the Fairview Heights, Illinois state prison, contacted his niece, Angie Jimenez Badilla (“Angie”), in Tucson and told her he was sending someone to take her to open a bank account in her name. Angie was fifteen at the time and did not drive. Although she was married, she and her husband Daniel lived with Angie’s mother.

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Bluebook (online)
272 F.3d 866, 2001 U.S. App. LEXIS 24816, 2001 WL 1457039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mario-gracia-ca7-2001.