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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13899
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIANELIS MOLINA NODA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20087-CMA-1
____________________
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2 Opinion of the Court 21-13899
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
A jury convicted Dianelis Molina Noda (“Noda”) for
defrauding her former employer, Greentree, Inc., by diverting
payroll direct deposits issued in the name of former Greentree
employees into her personal bank accounts. She received a 70-
month total sentence for five counts of wire fraud, in violation of
18 U.S.C. § 1343, and two counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1). She now appeals, alleging
three enumerations of error. First, she argues that the district court
violated her Sixth Amendment right to confront her accusers when
it permitted COVID-19-positive witness Christopher Martin to
testify by video. Second, Noda contends that the district court
abused its discretion when it denied her COVID-19-based
continuance requests, which she alleges led to the violation of her
confrontation rights. Third, she maintains that her sentence is
substantively unreasonable. Because Noda is not entitled to relief
on any of her claims, we affirm her convictions and sentence.
I. Background
A. Procedural History
A grand jury indicted Noda with five counts of wire fraud,
in violation of
18 U.S.C. § 1343 (Counts 1 through 5), and two
counts of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A(a)(1) (Counts 6 and 7).
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At a status conference in June 2021, 1 Noda requested an
August 2021 trial date, in part because she was pregnant and an
August trial would not interfere with the birth of her child, who
was due in late September 2021. The district court set trial for the
two-week trial period beginning on August 16, and informed the
parties that pretrial motions were due by July 12, 2021. On July 22,
Noda moved to continue the trial, requesting a 30-day continuance
“to allow sufficient time for defense counsel to fully review the
discovery provided and allow defense counsel to fully investigate
any other circumstances of the case.” The district court denied the
motion, explaining that the motion had failed to show good cause
for an additional extension. On August 6, Noda filed a “Notice of
Trial Conflict,” informing the district court that her counsel had
another trial scheduled to begin the same day as Noda’s trial. In
response, the district court reset the trial date for August 23.
During a calendar call hearing four days later, Noda again
requested a continuance. As relevant to this appeal, she argued
that a continuance was necessary because it was “too much of a
risk to put a pregnant woman on trial” given the COVID-19 surge
in Miami-Dade County. Noda acknowledged that, despite the
pandemic, she was working in person at a law office in Miami at
the time. The district court denied Noda’s continuance request
1 Noda’s trial was initially set to begin in March 2021. A date was set for a
change-of-plea hearing three times before Noda informed the district court
that she would not be changing her not guilty plea.
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4 Opinion of the Court 21-13899
again, explaining that COVID-19 safety protocols would be in
place, including face mask and social distancing requirements. The
district court also reset trial for August 19.
On August 13, Noda filed a motion requesting a 90-day
continuance, again citing the risk of COVID-19 infection and
illness. The district court denied the motion, explaining that the
trial was expected to last only four days, that safety procedures like
masking and social distancing were in place, and that the trial
would occur in a courtroom retrofitted with COVID-19 safety
measures. That same day, Noda moved to compel negative
COVID-19 tests for all witnesses and trial participants, to be taken
within 48 hours of their anticipated presence inside the courtroom.
The district court denied the motion.
Three days later, Noda filed motions for clarification
regarding the district court’s COVID-19 safety protocols. The
motions also sought to discover the vaccination status of
government witnesses and to preclude unvaccinated witnesses
from testifying, among other voir dire and COVID-19-related
requests. The district court denied all Noda’s motions. The next
day, Noda filed another COVID-19-related continuance motion,
requesting a trial date in early November 2021. The district court
struck this motion as unauthorized and untimely, noting that the
motion was “repetitive of earlier [m]otions, disrespectful to the
Court, and filled with histrionics.” The district court explained:
Defendant ultimately seeks to persuade the Court to
postpone the trial in this case until the COVID-19
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21-13899 Opinion of the Court 5
pandemic concludes. This, the Court will not do,
particularly when several jury trials have already been
safely conducted in this District, following a process
designed to bring in a fair cross-section of the
community. While the Court is mindful of
Defendant’s concerns, numerous safety measures
have been implemented, including mandatory
temperature checks upon entrance to the courthouse,
required masking and social distancing, plexiglass and
glass dividers throughout the courtroom, the
placement of three Intellipure air purifiers with UV
lights inside the courtroom, the periodic cleaning of
surfaces during trial, and the use of disposable
microphone covers. Defendant and her counsel have
made no effort to visit and examine the retrofitted
courtroom where a safe, socially distanced trial will
be conducted, despite the Court’s invitation they do
so; in contrast, the prosecutors have visited that
courtroom to familiarize themselves with the setting
and its safety features.
Trial began a few days later.
B. Factual Background
During a four-day jury trial, the government presented
testimony from eleven witnesses. The testimony established that
Noda worked in the office of Greentree, Inc.—a landscape
maintenance company in south Florida—and that Noda was
responsible for processing payroll. Noda input the hours that each
employee worked on a weekly basis, entered each employee’s bank
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6 Opinion of the Court 21-13899
account information into the payroll system, and updated the
system if an employee quit. Greentree also kept physical personnel
files with current and former employees’ personal identifying
information, date of hiring, and date of termination. Because of
her job duties related to payroll, Noda had access to these files.
In March 2019, while Noda was absent from work, another
employee who was sorting the payroll checks discovered pay stubs
for former employees who no longer worked at Greentree. The
bank account listed for these former employees was the same bank
account that Noda used to receive her personal paycheck.
Research into the matter revealed that, starting in August 2018,
numerous ex-employees had received paychecks after they had
been terminated and that these paychecks had been deposited into
Noda’s bank accounts. 2 Neither Greentree nor the former
employees authorized these deposits, and they did not give Noda
permission to use the employees’ personal identifying information.
An FBI forensic accountant testified that, in February 2019
alone, Noda received deposits from Greentree totaling more than
her annual salary.3 And Noda’s spending habits reflected her
2 Ultimately, the investigation revealed that 20 former employees’ identities
were used to initiate around 300 direct deposits into Noda’s bank accounts
between August 2018 and March 2019. In total, a little over $200,000 was
withdrawn from Greentree’s bank account as a result of the transactions.
3 Noda’s annual salary was $29,000.
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21-13899 Opinion of the Court 7
increased income—from August 2018 to March 2019, Noda spent
more than $178,000.
As relevant to the issues on appeal, on the second day of
trial, which fell on a Friday, Christopher Martin, an investigative
security agent with Greentree’s payroll company, ADP, testified.
He explained that ADP processed multiple direct deposit checks
that went into a bank account in Noda’s name.
The third day of trial was a Monday. That morning, Noda’s
counsel moved for a mistrial on the basis that the government had
withheld exculpatory evidence. Noda’s counsel explained that,
over the weekend, the government told him that it had evidence
of an online chat thread exchanged between ADP and a Greentree
employee named “Cristi” on November 28, 2018. The
government explained that it just learned of these communications
from Martin, who had testified on Friday, and offered to recall him
as a witness. The district court denied the motion for mistrial. The
government then alerted the court that Martin had tested positive
for COVID-19 over the weekend. In response to the suggestion
that Martin testify by video, Noda’s counsel made a Sixth
Amendment Confrontation Clause objection. After hearing from
the parties, the district court overruled Noda’s objection, reasoning
that Noda’s “confrontation rights [would] not be[] violated” by
Martin’s appearance by video “in light of [his] COVID positive
status” and “because he ha[d] previously testified . . . in open court
in the presence of [Noda].”
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Martin then testified by video about the chat messages that
occurred between someone at Greentree and an ADP
representative on November 28, 2018. In the exchange, a person
using the Greentree account—which appears under the username
“Cristi”—asked an ADP representative if some of the Greentree
employees could receive their pay stubs in an electronic, paperless
format.4 The ADP representative responded that, “[t]he only way
to do this . . . [was to] make all pay stubs available online.” “Cristi,”
the Greentree user, responded and stated that she wanted this
paperless option for only certain employees. After the ADP
representative replied, “[t]here is no way to only do this for specific
employees, I apologize,” the Greentree user wrote back, “Okay.
Thanks anyway,” and left the chat. Noda’s counsel then conducted
cross-examination.
At the end of trial, the jury found Noda guilty on all counts.
Before Noda’s sentencing, a probation officer submitted a
presentence investigation report (“PSI”), which calculated Noda’s
advisory guidelines range as 61 to 70 months’ imprisonment. 5 In
4 Martin explained that the Greentree username appeared as “Cristi” on the
chat function because that was the name listed as the user agent and owner of
the Greentree account. Accordingly, there was no way to know who was
actually writing the messages.
5 Noda’s advisory guidelines range for Counts 1–5 was 37 to 46 months’
imprisonment and Counts 6 and 7 carried a mandatory consecutive term of 24
months’ imprisonment, which resulted in a final advisory guidelines range of
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21-13899 Opinion of the Court 9
her sentencing memorandum, Noda argued that “a guideline
prison sentence is the appropriate sentence” and that an upward
variance was not warranted. She also argued that a sentence
between 61 and 70 months “would be sufficient taking into account
the sentencing factors under § 3553(a).”
At the sentencing hearing, after resolving Noda’s objections
to the PSI, the district court agreed with the PSI’s calculation of the
guidelines range. The government requested a total sentence of
five and a half years (or 66 months). Noda argued that “[t]his is not
a case that deserves anything above the guidelines” and that the
district court should not consider an upward variance. Noda’s
counsel stated:
[Sixty-six] months, I think as the Government has
asked for, that would be a reasonable sentence.
[Seventy] months is the top of the guidelines. I’ve
advised my client that there’s a high likelihood she
might get 70 months. But I don’t think anything
more than that is deserved. This is not a case that falls
outside of the normal fraud.
Noda again reiterated that “under the [§] 3553(a) factors, we
believe a guideline sentence is appropriate in this case” and that
Noda was “asking for a guideline sentence.”
61 to 70 months’ imprisonment. She faced a statutory maximum term of 20
years’ imprisonment.
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Ultimately, the district court sentenced Noda to 70 months’
imprisonment to be followed by three years’ supervised release. It
explained that a sentence at the top end of the guidelines range was
appropriate in light of the
18 U.S.C. § 3553(a) factors. In particular,
the court emphasized the “shocking” nature and circumstances of
the offense and Noda’s continued failure to accept responsibility at
sentencing. This appeal followed.
II. Discussion
A. Whether Noda’s Sixth Amendment Right was violated
Noda argues that the district court erred by allowing Martin
to be recalled as a witness and testify by video over Noda’s
Confrontation Clause objection.
“[W]e review de novo [a defendant’s] claim that [her] Sixth
Amendment rights were violated.” United States v. Yates,
438 F.3d
1307, 1311 (11th Cir. 2006) (en banc).
The Sixth Amendment’s Confrontation Clause “guarantees
the right of an accused in a criminal prosecution to be confronted
with the witnesses against him.” Delaware v. Van Arsdall,
475 U.S.
673, 678 (1986) (quotations omitted). In general, this clause
“guarantees the defendant a face-to-face meeting with witnesses
appearing before the trier of fact.” Yates,
438 F.3d at 1312
(quotations omitted).
The harmless error doctrine applies to violations of the
Confrontation Clause. Van Arsdall,
475 U.S. at 684. When
determining whether a Confrontation Clause error is harmless, we
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analyze several factors, including: (1) “the importance of the
witness[’s] testimony in the prosecution’s case”; (2) “whether the
testimony was cumulative”; (3) “the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points”; (4) “the extent of cross-examination
otherwise permitted”; and (5) “the overall strength of the
prosecution’s case.”
Id.
Here, even assuming that the district court erred by
permitting Martin to testify by video, such error was harmless.
Noda protests that the admission of Martin’s video testimony was
not harmless because the “government needed to prove that []
Noda was in the office on . . . November 28, 2018,” because it was
a Thursday—the day payroll was processed. She contends that her
absence from work on November 28, 2018, could mean that “the
fraud would have been discovered much earlier, or could have
involved another party.” 6
Turning to the Van Arsdall factors, Martin’s video testimony
was undisputed, cumulative, and of minimal value to the
prosecution’s robust case against Noda. Indeed, Noda admits as
much on appeal. In her brief, Noda states that “the government
6 Noda’s presence or absence in the office on November 28, 2018, is irrelevant
to Noda’s ultimate guilt for the crimes for which she was charged. Noda
provides no argument or explanation about how her absence on that day
would be exculpatory. And even if her absence meant that her fraud would
have been discovered earlier or suggested that she had an accomplice—as she
argues—those facts do not negate Noda’s culpability.
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did not have a true ‘need’ for [Martin’s] testimony, because it was
clear that other witnesses could have offered the same evidence.”
Noda also states that “there is no indication that [Martin] had any
unique, specialized knowledge or expertise about the evidence.”
Additionally, Noda was permitted to cross-examine Martin at
length. Considering the government’s robust case against Noda—
which included testimony from numerous witnesses that Noda
alone was responsible for payroll, that paychecks in the names of
former employees were deposited into Noda’s bank accounts, and
that Noda spent significantly more than her annual salary during
the relevant time period—we conclude that any error in permitting
Martin to testify by video was harmless.
B. Whether the district court abused its discretion by
denying Noda’s request for continuances
Noda explains that the basis for each of her motions for
continuance “was the ongoing COVID pandemic and the fact that
[she] was pregnant and not vaccinated.” She argues that she was
prejudiced by the district court’s refusal to grant her motions for a
continuance of trial because it resulted in a violation of her Sixth
Amendment right to confront her accuser when Martin was
permitted to testify by video on the third day of trial due to his
COVID-19 positive status, as discussed above.
“Trial courts are afforded ‘great latitude’ with respect to
scheduling, and judges enjoy ‘broad discretion’ in ruling on
motions for continuances.” United States v. Pendergrass,
995 F.3d
858, 870 (11th Cir. 2021). Consequently, “[w]e review for abuse of
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discretion a district court’s denial of a motion to continue trial, and
the denial of such a request does not rise to error unless it is
arbitrary and unreasonable and severely prejudices the moving
party.”
Id. (quotations omitted).
Here, the district court did not abuse its discretion when it
denied Noda’s continuance requests because those denials did not
prejudice her. As discussed above, even if the district court erred
by allowing Martin to testify by video, such error was harmless.
Thus, in the absence of any showing of prejudice to Noda, the
district court did not abuse its discretion by denying her motions
for continuance.
Id.
C. Whether Noda’s sentence is substantively reasonable
Noda argues that the district court’s sentence of 70 months’
imprisonment was substantively unreasonable considering the
circumstances of this case and her personal history and
characteristics.
We review a sentence for substantive reasonableness under
a deferential abuse of discretion standard, asking whether a
sentence is substantively reasonable in light of the totality of the
circumstances. See Gall v. United States,
552 U.S. 38, 52 (2007).
The district court must issue a sentence that is “sufficient, but not
greater than necessary” to comply with the purposes of
18 U.S.C.
§ 3553(a)(2), which include the need for a sentence to reflect the
seriousness of the offense, promote respect for the law, provide just
punishment, deter criminal conduct, and protect the public from
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future criminal conduct.
18 U.S.C. § 3553(a). The court must also
consider the “nature and circumstances of the offense and the
history and characteristics of the defendant,” and “the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
Id.
§ 3553(a)(1), (6). Importantly, the weight given to a particular
§ 3553(a) factor “is committed to the sound discretion of the district
court,” and the district court is not required to give “equal weight”
to the § 3553(a) factors. United States v. Rosales-Bruno,
789 F.3d
1249, 1254 (11th Cir. 2015) (quotations omitted).
The burden rests on the party challenging the sentence to
show “that the sentence is unreasonable in light of the entire
record, the § 3553(a) factors, and the substantial deference afforded
sentencing courts.” Id. We will “vacate the sentence if, but only
if, we are left with the definite and firm conviction that the district
court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United
States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quotations omitted).
Noda failed to show that the district court abused its
discretion in imposing a substantively unreasonable sentence. The
district court considered the § 3553(a) factors and explained why a
sentence at the top of the guidelines range was appropriate given
the “shocking” nature of the offense and the fact that Noda
continued not to accept responsibility or show any remorse at the
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sentencing stage.7 Although she quarrels with the way that the
district court weighed the various factors, the weight to be
accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court. Rosales-Bruno, 789 F.3d at
1254 (quotations omitted).
Moreover, Noda’s total 70-month sentence is within the
applicable guidelines range and is below the statutory maximum of
20 years’ imprisonment, which are both indicators of
reasonableness. United States v. Hunt,
526 F.3d 739, 746 (11th Cir.
2008) (“Although we do not automatically presume a sentence
within the guidelines range is reasonable, we ordinarily expect
[such a sentence] . . . to be reasonable.” (alteration adopted and
quotations omitted)); United States v. Gonzalez,
550 F.3d 1319,
1324 (11th Cir. 2008) (explaining that a sentence that is below the
statutory maximum is another indicator of reasonableness).
7 Although Noda argues that the district court penalized her for exercising her
right to trial, her argument is not supported by the record. At sentencing, it is
true that the district court commented that Noda’s case was “very unusual”
because she made the government prove its case at trial even though “the
evidence was so overwhelming” and even at sentencing she “still [did] not
accept responsibility for her theft and her identity theft.” However, the district
court then explained that a sentence at the top of the guidelines range was
warranted based on the nature and circumstances of the offenses and Noda’s
failure to accept responsibility even after being confronted with the
overwhelming evidence and her lack of remorse—“personal characteristics
that cr[ied] out” for a top of the guidelines sentence. Thus, contrary to Noda’s
argument, the district court did not improperly base her sentence on the fact
that she went to trial.
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Accordingly, we conclude that her sentence is substantively
reasonable.
III. Conclusion
Because Noda is not entitled to relief on any of her claims,
we affirm her convictions and sentence.
AFFIRMED.
