United States v. Ruben Rodriguez

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2021
• Docket: 20-10060
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10060

Plaintiff-Appellee, D.C. No. 2:11-cr-00296-JAM-3 v.

RUBEN RODRIGUEZ, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 20-10075

Plaintiff-Appellee, D.C. No. 2:11-cr-00296-JAM-4 v.

JAIME MAYORGA,

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted July 9, 2021** San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: GRABER, MURGUIA, and LEE, Circuit Judges.

Ruben Rodriguez and Jaime Mayorga appeal their respective convictions for

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. Rodriguez and Mayorga first contend that insufficient evidence supports

their convictions because no rational juror could have found, based on the evidence

at trial, that the alleged misrepresentations and false statements related to mortgage

applications were material to lenders’ decisions. We review this claim de novo,

United States v. Salman, 531 F.3d 1007, 1010 (9th Cir. 2008), and will reverse “only

if viewing the evidence in the light most favorable to the government, and granting

to the government all reasonable inferences that may be drawn from the evidence,

no rational trier of fact could find beyond a reasonable doubt that the defendant[s]

committed the crime,” United States v. Johnson, 297 F.3d 845, 868 (9th Cir. 2002).

A reasonable juror could conclude that Rodriguez’s and Mayorga’s

falsehoods—including their use of “straw buyers” to hide the true identity of loan

applicants, their false statements about loan applicants’ jobs and income, and their

practice of lending funds to applicants to inflate the applicants’ assets for

“verification” by lenders—were material. Several of Rodriguez and Mayorga’s

clients testified at trial that they were initially told they did not qualify for loans, but

after working with Rodriguez or Mayorga, they were ultimately able to obtain loans.

2 A reasonable juror could conclude from this evidence that Rodriguez’s and

Mayorga’s alleged misrepresentations were material, that is, they could have made

the difference between an applicant’s being denied a loan and an applicant’s

receiving a loan. See United States v. Lindsey, 850 F.3d 1009, 1014 (9th Cir. 2017)

(explaining that materiality is an objective standard and depends on “the intrinsic

capabilities of the false statement itself” to influence a lender’s decision) (internal

quotation marks omitted).

2. Rodriguez and Mayorga next argue that the district court improperly

excluded certain testimony from an expert witness, Professor Shaun Martin. Even

if the district court abused its discretion in excluding expert testimony, the district

court’s error is not reversible if it is harmless. United States v. Laurienti, 611 F.3d

530, 547 (9th Cir. 2010). An error is harmless if “it is more probable than not that

the error did not materially affect the verdict.” Id. (quoting United States v. Cohen,

510 F.3d 1114, 1127 (9th Cir. 2007)).

Here, the district court sustained objections to several questions related to

lending standards in the subprime mortgage industry and the basis for Professor

Martin’s knowledge of this industry. In the end, though, Professor Martin was

allowed to make his central point key to Rodriguez and Mayorga’s theory of the

case: that the rise of subprime mortgage lending and securitization essentially

eliminated all lending standards, such that lenders no longer cared about the

3 information on loan applications. He was also allowed to testify about the reports

and literature that formed the basis of his conclusions about the mortgage-lending

industry. Therefore, any error was harmless. See id. at 548–49 (holding that

exclusion of “a limited set of questions” posed to the defense expert was harmless

where the expert “was permitted to testify to a large extent on those topics”).

3. Finally, Rodriguez and Mayorga assert that the district court erred by

giving an improper jury instruction regarding the “intent to defraud” element of the

wire-fraud conspiracy charge. We review de novo whether a jury instruction is

“supported by law.” United States v. Anguiano-Morfin, 713 F.3d 1208, 1209 (9th

Cir. 2013) (internal quotation marks omitted).

The government concedes that the jury instruction that “intent to defraud”

requires “intent to deceive or cheat” was erroneous. We held in United States v.

Miller, 953 F.3d 1095, 1101 (9th Cir. 2020), cert. denied, 141 S. Ct. 1085 (2021),

that the pattern jury instruction used here was erroneous because wire fraud requires

intent “to deceive and cheat.” Therefore, the only remaining question is whether the

error was harmless. Neder v. United States, 527 U.S. 1, 15–16 (1999); Miller, 953

F.3d at 1103. We conclude that it was.

Here, as in Miller, the district court further instructed the jury that wire fraud

requires that “the person knowingly participated in a scheme or plan to defraud or a

scheme or plan to obtain money or property by means of false or fraudulent

4 pretenses, representations, or promises.” Given this additional instruction, and the

overwhelming evidence at trial that Rodriguez, Mayorga, and their co-conspirators

intended to obtain something of value through their misrepresentations—that is,

mortgage loans and associated commissions—it is highly unlikely that the jury

concluded that Rodriguez and Mayorga intended merely to deceive lenders but not

to cheat them by obtaining something of value. See Miller, 953 F.3d at 1103. In

other words, we conclude that a rational jury still would have found Rodriguez and

Mayorga guilty absent the instructional error. See Neder, 527 U.S. at 18; Miller, 953

F.3d at 1103.

AFFIRMED.