Case: 18-11775 Date Filed: 07/31/2020 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11775 ________________________
D.C. Docket No. 1:15-cr-20973-KMW-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL ROJAS, BARBARA ROJAS,
Defendants - Appellants.
________________________
Appeals from the United States District Court for the Southern District of Florida ________________________
(July 31, 2020)
Before MARTIN and NEWSOM, Circuit Judges, and WATKINS, * District Judge.
* Honorable W. Keith Watkins, United States District Judge for the Middle District of Alabama, sitting by designation. Case: 18-11775 Date Filed: 07/31/2020 Page: 2 of 17
PER CURIAM:
This is the direct criminal appeal of Barbara and Michael Rojas, a mother
and son who were convicted of conspiracy to commit bank fraud and wire fraud,
wire fraud, and bank fraud as a result of their participation in a complex mortgage-
fraud scheme. Michael was sentenced to 136 months’ imprisonment, and Barbara
was sentenced to 114 months’ imprisonment. Between them, the Rojases raise a
number of issues on appeal. After careful consideration, we affirm both their
convictions and sentences.
I
A
The facts of this case center on a mortgage fraud conspiracy that took place
during the real estate boom of 2005–2007. The conspiracy involved recruiting
straw buyers with good credit scores to apply for mortgages to purchase million-
dollar homes in Miami. Despite their decent credit, the straw buyers were of
modest means and couldn’t actually afford the mortgages or provide the requisite
cash-to-close. They were nevertheless granted mortgages based on forged bank
statements and loan documents filled with material misrepresentations about their
professions, assets, and abilities to pay—including, notably for our purposes here,
that they wouldn’t need to borrow any money to pay closing costs. Most of the
transactions at issue in this appeal involved two affiliated entities—Sun Trust Bank
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(STB), and its wholly-owned subsidiary, Sun Trust Mortgage, Inc. (STMI); STB
provided the loan money to STMI, which was responsible for issuing the loans.
Once the banks approved the loan applications, they would wire the loan
money to Miller Title & Escrow, L.L.C. (Miller Title). Michael and Barbara, who
was a licensed closing agent, operated Miller Title, which was responsible for
certifying the fraudulent HUD-1 Settlement Statements used to acquire the loans.
The Rojases also ran a sister organization, BND Title Services, Inc. (BND),
through which they routed portions of the loan money received by Miller Title to
be used to fund the buyers’ cash-to-close payments. BND also retained a portion
of the loaned funds, which in theory would have been due to the buyer.
Eventually, each of the properties purchased as part of the conspiracy went into
foreclosure, as the straw buyers defaulted on their mortgages.
B
A grand jury issued a superseding indictment charging the Rojases with the
following: one count of conspiracy to commit bank and wire fraud, in violation of
18 U.S.C. § 1349; ten counts of wire fraud affecting a financial institution, in
violation of 18 U.S.C. § 1343; and two counts of bank fraud, in violation of 18
U.S.C. § 1344. Michael was also charged with an additional count of bank fraud
related to a separate transaction involving the purchase of a personal residence.
The wire-fraud counts involved STB and STMI, and the bank-fraud counts
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involved Washington Mutual and Indy Mac Banks. Unlike the rest of their
indicted co-conspirators, the Rojases chose to go to trial, where a jury found them
guilty on all counts. Michael was sentenced to 136 months’ imprisonment, and
Barbara was sentenced to 114 months’ imprisonment.
The Rojases raise the following issues on appeal: (1) whether there was
sufficient evidence that their crimes affected a financial institution for purposes of
the wire-fraud counts involving STB and STMI; (2) whether there was sufficient
evidence of Barbara’s intent to defraud 1; (3) whether the district court abused its
discretion by (a) preventing Michael’s mental-health expert from testifying about
his intent to defraud or (b) rejecting his theory-of-defense jury instruction; (4)
whether the district court erred in allowing a lay witness to testify about Michael’s
signature; (5) whether the district court erred by not ruling on Barbara’s motion in
limine relating to “good conduct” evidence; and (6) whether the Rojases’ sentences
were substantively unreasonable. We’ll take these arguments in turn.
1 In his brief, Michael appears to adopt Barbara’s sufficiency-of-the-evidence argument, but he does not discuss any sufficiency issues unique to his case. A defendant cannot adopt a co- defendant’s sufficiency challenge, because “the fact-specific nature of an insufficiency claim requires independent briefing if we are to reach the merits.” See United States v. Khoury, 901 F.2d 948, 963 n.13 (11th Cir. 1990). As a result, we will not review the sufficiency of the evidence as to Michael’s intent to defraud.
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II
First we’ll discuss whether there was sufficient evidence that the Rojases’
wire fraud “affect[ed] a financial institution” within the meaning of 18 U.S.C. §
1343. We review the sufficiency of the evidence de novo “in the light most
favorable to the Government, . . . drawing all reasonable inferences and credibility
choices in the Government’s favor.” United States v. Capers, 708 F.3d 1286, 1296
(11th Cir. 2013). “A jury’s verdict cannot be overturned if any reasonable
construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” Id. at 1297 (quotation omitted).
The Rojases were charged with wire fraud affecting a financial institution
under 18 U.S.C. § 1343—this Court has held that exposing a financial institution to
“an increased risk of loss” is sufficient to satisfy the statute’s “affect[ing] a
financial institution” element. See United States v. Martin, 803 F.3d 581, 587–88,
590 (11th Cir. 2015). 2 Along those lines, the district court here instructed the jury
that an act “[a]ffect[s] a financial institution” if it “expos[es] the financial
institution to an actual loss or . . . an increased risk of loss.”
2 The statute of limitations on wire fraud is ten years “if the offense affects a financial institution.” 18 U.S.C. § 3293(2). As the government notes in its brief, because the Rojases’ crimes took place between 2006–2007, but they weren’t indicted until 2015 and 2016, without a finding that the crimes affected a financial institution the prosecution could run into statute-of- limitations issues.
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On appeal, the Rojases argue that “[t]here was neither federal jurisdiction
nor sufficient evidence to convict” them on their wire-fraud counts involving STB
and STMI, “because the overwhelming evidence at trial was that STMI, which was
not federally insured at the time, was the entity that was materially affected by the
indicted fraudulent conduct,” not STB, the federally insured financial institution.
Br. of Appellant M.R. at 40, 43. The Rojases’ argument focuses largely on the
government’s evidence about whether STMI was actually a wholly-owned
subsidiary of STB—they note that this relationship was established through
testimony stated in the present tense, which they argue doesn’t sufficiently show
that STMI was a wholly-owned subsidiary at the time of the crimes.3
The government, on the other hand, argues that the evidence presented
established that the Rojases’ crimes affected a financial institution, because it
clearly demonstrated that STB provided the money used in STMI’s loans to the
straw buyers. Indeed, when STB wired the loan money to STMI, it was recorded
as a “general ledger credit” offset by a “general ledger debit” for STMI. The
government contends, therefore, that STB’s provision of the loan money alone
“established the necessary exposure to an increased risk of loss,” as the “debts
3 The Rojases also argue that they were “not on notice that STB would be affected by a default on a mortgage solicited by, processed, reviewed and approved by STMI.” Even if we assume that’s true, 18 U.S.C. §§ 1343 and 3293(2) do not include a knowledge requirement as to the scheme’s effect on a financial institution—this distinguishes wire fraud from bank fraud, for example, which does include such a knowledge requirement, see 18 U.S.C. § 1344.
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affected [its] financial condition and balance sheet”—if the straw buyers didn’t
repay STMI, then STMI wouldn’t be able to repay STB.4 Br. of Appellee at 16–
17.
We conclude that the evidence here was sufficient to demonstrate that the
Rojases’ crimes affected STB. The fact that STB was the source of the loan
money distributed by STMI put it at an increased risk of loss sufficient to implicate
the “affects a financial institution” language in 18 U.S.C. §§ 1343 and 3293(2). Cf.
Martin, 803 F.3d at 590.
III
Next we’ll discuss Barbara’s sufficiency-of-the-evidence claim. A common
element to all of Barbara’s counts of conviction is that she acted with an intent to
defraud. See 18 U.S.C. §§ 1343, 1344, 1349; United States v. Bradley, 644 F.3d
1213, 1239 (11th Cir. 2011) (“Proof of intent to defraud is necessary to support [a]
conviction[] for . . . wire fraud.”); United States v. Williams, 390 F.3d 1319, 1324
(11th Cir. 2004) (noting that the government must demonstrate an “intent to
defraud” to convict a defendant of bank fraud). Barbara contends that the evidence
produced at trial was insufficient to prove that she “knew of the fraudulent scheme
4 The Rojases argue that “[t]he fact that some loan funding was wired directly from STB to Miller [Title], without more, did not mean that STB would incur any loss.” Sections 1343 and 3293(2) don’t have actual-loss requirements, so this argument is unavailing. See, e.g., Martin, 803 F.3d at 589 (noting that despite the “possibility that [the bank] suffered no loss, it was nonetheless defrauded,” as the “scheme to defraud is all that the government must prove”).
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concocted by others and acted with the requisite specific intent to violate the law.”
Br. of Appellant B.R. at 14. Specifically, Barbara alleges that the evidence at trial
merely demonstrated that “she was a title agent who may have signed an
unidentified number of checks to close”—she says that there wasn’t any evidence
“that she was personally involved in any of the closings or had any knowledge of
the fraudulent conduct of” her co-conspirators or “that she prepared or signed any
of the loan application documents.” Id. at 14–15.
The government responds by citing several pieces of key testimony
implicating Barbara in the fraud. First, it references the testimony of Carlos Jitric,
one of the Rojases’ co-conspirators who was responsible for recruiting the straw
buyers. When asked on the stand whether he “ever s[a]t down and discuss[ed]
[the] scheme with Barbara Rojas,” Jitric unequivocally said yes, noting that he
spoke with her about the transactions “[a]round 2005” and told her “[t]hat the
buyers didn’t have the amount of money for the closing and the documents were
not legit.” Additionally, some of Barbara’s co-conspirators—including Michael—
confirmed that she signed checks and wrote out deposit slips that were integral to
the conspiracy. Miller Title employee Roxanna Tanaka testified that she knew the
company was engaged in wrongdoing, but she followed Michael and Barbara’s
orders because they were her employers. For example, Tanaka explicitly stated
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that Barbara told her to tell anyone who asked about BND that it “no longer existed
and [she] had no information.”
Reviewing the evidence in the light most favorable to the jury verdict, we
conclude that it was sufficient to establish Barbara’s intent to defraud. See
Capers, 708 F.3d at 1296–97. Barbara owned and operated both Miller Title and
BND, and multiple individuals involved in the conspiracy testified about her
involvement in and knowledge of the fraudulent scheme.
IV
On, then, to Michael’s contentions pertaining to his mental-health-related
arguments. One of Michael’s defenses at trial was that he was in a manic state at
the time of many of the relevant transactions, which negated the specific intent
necessary to commit the charged crimes. The government moved in limine to
prevent Michael from introducing expert testimony from Dr. Mark Mills that
Michael’s bipolar disorder prevented him from being able to form an intent to
defraud, and the district court conducted a Daubert hearing.
Although Dr. Mills was ultimately allowed to testify, the scope of his
testimony was limited—the parties agreed that the following instructions would be
read before Dr. Mills’s testimony:
Dr. Mills may not offer an opinion on the ultimate issue to be decided by the jury, which is whether or not defendant Michael Rojas had the requisite mens rea to commit the crimes charged in the superseding indictment. Rather, he is to confine his testimony to the
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meaning of terms like manic and psychosis, and he may discuss his diagnosis, characteristics of Bipolar I disorder and its typical effect on a person’s mental state but not specifically on the defendant’s actual intent to the charged crimes.
Dr. Mills may not at any time state that the defendant lacked the capacity to form the mens rea either in mid-2007 or any other time.
Dr. Mills’ testimony must be confined to the specific time period of mid-2007 when the defendant was diagnosed as having Bipolar I disorder and with the purchase of [his personal residence], and to no other event nor time period . . . .
Dr. Mills went on to testify at trial that Michael suffered from Bipolar I disorder
and that he experienced instances of severe mania and “outright psychosis, periods
where he’s really . . . kind of crazy,” which could render him “[g]rossly impaired”
and diminish his judgment.
Michael first argues that the district court erred by not allowing Dr. Mills to
testify that a person with his disorder wouldn’t be able to form the requisite intent
to commit fraud. The government, on the other hand, argues that the district
court’s exclusion of this testimony was a straightforward application of Federal
Rule of Evidence 704(b), which states the following: “In a criminal case, an expert
witness must not state an opinion about whether the defendant did or did not have a
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mental state or condition that constitutes an element of the crime charged or of a
defense. Those matters are for the trier of fact alone.”
We review evidentiary rulings for abuse of discretion. See United States v.
Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). We hold that the district court did
not abuse its discretion by excluding testimony by Dr. Mills that someone with
Michael’s condition would not be able to form the requisite intent to commit fraud.
See, e.g., United States v. Jeri, 869 F.3d 1247, 1266 (11th Cir. 2017); United States
v. Manley, 893 F.2d 1221, 1223 (11th Cir. 1990) (noting that “[c]ourts cannot
permit the use of the hypothetical question as a vehicle to circumvent the clear
mandate of Rule 704(b)”). And even if the exclusion of this testimony was an
error, it would nevertheless be harmless. United States v. Dulcio, 441 F.3d 1269,
1274 (11th Cir. 2006). Michael stipulated to this limitation, and he was able to
introduce ample “psychiatric evidence to negate specific intent.” United States v.
Ettinger, 344 F.3d 1149, 1153 (11th Cir. 2003).
Michael also challenges the district court’s refusal to give the following jury
instruction:
The burden is on the government to prove that Mr. Rojas had specific intent to commit the fraud alleged in the indictment. There has been testimony that Mr. Rojas, during the relevant time period of the indictment, was suffering from a mental health condition that may have impacted his judgment. If you find that Mr. Rojas was, in fact, suffering from a mental illness and that the mental illness affected his
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judgment to the extent that it would have made it difficult for him to appreciate the fraudulent scheme perpetrated by Mr. Jitric and others; you may consider that information in determining whether the government has established that Mr. Rojas had specific intent to commit the offenses charged. Instead, the district court said the following about Michael’s defense theory:
Their theory of defense, defendant Michael Rojas’ theory, is that he did not act knowingly, willfully, and with specific intent to commit the crimes charged. . . .
Understand, ladies and gentlemen, it is not the defense’s theory that the defendant Michael Rojas was insane at the time the offenses were committed. Rather, his theory is that he could not formulate the specific intent in mid-2007 to commit the charged offenses because of a bipolar disorder.
We review a district court’s refusal to give a requested theory-of-defense
instruction for an abuse of discretion. United States v. Willner, 795 F.3d 1297,
1310 (11th Cir. 2015). The court abuses its discretion by refusing to give a
requested instruction when “(1) the requested instruction states the law correctly;
(2) the requested instruction was not substantially covered by the remainder of the
jury charge; and (3) the requested instruction’s subject matter deals with an issue
so important that the district court’s failure to give it seriously impaired the
defense.” Id. District courts have “broad discretion to formulate jury instructions
provided those instructions are correct statements of the law”—we “defer to the
district court on questions of phrasing.” United States v. Miller, 819 F.3d 1314,
1316 (11th Cir. 2016) (quotation omitted).
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Michael argues that the district court’s chosen charge was “fatally incorrect”
for two reasons: (1) “because the testimony of Dr. Mills was that [Michael] had
Bipolar I Disorder during the entire time of the charged conspiracy . . . not just
mid-2007,” and (2) that the charge “deprived [the jury] of the critical missing
testimonial link” that a person suffering from Bipolar I Disorder would not “be
able to form the requisite specific intent to engage in a complex fraud.” Br. of
Appellant M.R. at 54–55. The government, on the other hand, contends that
Michael’s proposed jury instruction misstated the law of this Circuit, which holds
that psychiatric evidence is relevant only to completely negate specific intent—not
to argue that a defendant’s disorder might have impaired his judgment. See, e.g.,
United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir. 1990) (“[I]t is clear that
Congress meant to eliminate any form of legal excuse based upon one’s lack of
volitional control. This includes a diminished ability or failure to reflect
adequately upon the consequences or nature of one’s actions.”). Further, the
government asserts that the mid-2007 time limitation was stipulated to by the
parties, see supra at 10, and that, in any event, Michael only testified that he was
manic in mid-2007.
Here, we conclude that the district court did not abuse its discretion in
rejecting Michael’s requested theory-of-defense instruction. Michael’s proposed
instruction did not accurately characterize the law in this Circuit, see id., and, in
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any event, the substance of the district court’s instruction correctly stated the law
and reflected the parties’ stipulated statement read before Dr. Mills’s testimony; its
substitution for Michael’s preferred instruction in no way “seriously impaired” his
defense, see Willner, 795 F.3d at 1310. The district court acted well within its
broad discretion here.
V
Michael also challenges the testimony of a government witness identifying
his signature on an exhibit at trial. Lewis Sellars, a supervisory auditor with the
United States Attorney’s Office Economic and Environmental Crime Center,
testified that a signature on a check used in the cash-to-close portion of the
fraudulent scheme was Michael’s. Essentially, Michael argues that this “summary
witness for monetary transactions gave opinion evidence that a signature was
[Michael’s] without being qualified as an expert in that area; and admission of the
testimony, at the very least, was speculative and should have been excluded
pursuant to” Federal Rule of Evidence 403. Br. of Appellant M.R. at 60. Michael
did not object to this testimony at trial, 5 so we review this claim for plain error.
See Edouard, 485 F.3d at 1343 (“[W]here . . . the defendant failed to preserve his
5 Michael moved for a mistrial after Sellars’s testimony, but he argued only that there was insufficient evidence to connect him to the forgery of a check—he did not challenge Sellars’s qualification to identify his signature. And, in moving for a mistrial, Michael’s counsel appeared to concede that Michael had signed the check in question.
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challenge to an evidentiary ruling by contemporaneously objecting, our review is
for plain error.”).
To establish plain error, Michael must show “(1) error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Shelton, 400 F.3d 1325, 1328–
29 (11th Cir. 2005) (quotation omitted). “If all three conditions are met, [we] may
then exercise [our] discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1329 (quotation omitted). Even if we assume that this
testimony was admitted in error, that error did not affect Michael’s substantial
rights. Michael had an opportunity to cross-examine Sellars, and he later called
Sellers as a surrebuttal witness to challenge his identification of Michael’s
signature. In addition, the jury could easily compare Michael’s signature on the
check in question to his signature on numerous other exhibits, many of which he
admitted to signing.
VI
Next we’ll discuss Barbara’s contention that the district court abused its
discretion by failing to deny the government’s motion in limine aimed at excluding
good-conduct evidence—specifically, as Barbara describes it, “evidence of
legitimate loans which would have established a pattern of conduct . . . reflecting
that she merely signed checks to close and was not involved in the actual closings
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and/or the preparation or signing of closing documents.” Br. of Appellant B.R. at
19. The government objected to Barbara’s potential defense, but the district court
deferred ruling on its motion, stating that it would “[d]ecide it when the issue [wa]s
brought up” during the trial.
Barbara does not appear to have ever attempted to introduce any good-
conduct evidence at trial, nor does she reference any such evidence that the district
court excluded. Thus, the district court didn’t—couldn’t, really—err, as no
opportunity arose for it to rule on this motion.
VII
Finally, Michael and Barbara challenge the substantive reasonableness of
their sentences of 136 months and 114 months, respectively, arguing that their
sentences were disproportionate to the sentences of both their co-defendants and of
other similarly situated defendants. Although the Rojases’ recommended
Guidelines ranges were between 188–235 months’ imprisonment, the district court
granted them downward variances.
We evaluate the substantive reasonableness of a sentence based on the 18
U.S.C. § 3553(a) factors and “the totality of the circumstances.” Gall v. United
States, 552 U.S. 38, 51 (2007). “A district court abuses its considerable discretion
and imposes a substantively unreasonable sentence only when it (1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
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significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015) (quotation omitted). As a result, “it is only
the rare sentence that will be substantively unreasonable,” id. (quotation omitted),
and we usually “expect a sentence within the Guidelines range to be reasonable,”
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quotation omitted).
Additionally, “[d]isparity between the sentences imposed on codefendants is
generally not an appropriate basis for relief on appeal.” United States v. Regueiro,
240 F.3d 1321, 1325–26 (11th Cir. 2001). In particular “there is no unwarranted
disparity when a cooperating defendant pleads guilty and receives a lesser sentence
than a defendant who proceeds to trial.” United States v. Mateos, 623 F.3d 1350,
1367 (11th Cir. 2010) (quotation omitted).
The Rojases’ sentences—although admittedly lengthy—were not
substantively unreasonable. The sentences imposed were below the recommended
Guidelines range, and their co-defendants pleaded guilty in lieu of proceeding to
trial. The district court did not abuse its discretion here.
AFFIRMED.