United States v. Dennis Romero , 542 F. App'x 879 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16340
________________________
D.C. Docket No. 0:12-cr-60066-WPD-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIS ROMERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 28, 2013)
Before CARNES, Chief Judge, WILSON and FAY, Circuit Judges.
PER CURIAM:
Dennis Romero was sentenced to 45 months imprisonment after a jury found
him guilty of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349,
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and two counts of wire fraud relating to his collection of unemployment
compensation benefits, in violation of 18 U.S.C. § 1343. He appeals his
conspiracy conviction on three grounds, contending that: (1) the district court
erred in refusing to give a requested jury instruction on good-faith reliance on the
advice of counsel; (2) his conviction for conspiracy to commit mail fraud is
inconsistent with the jury’s verdict of acquittal on two counts of fraud involving
aircraft parts, in violation of 18 U.S.C. § 38; and (3) the evidence presented at trial
was insufficient to sustain his conspiracy conviction.
I.
A.
The various fraud charges against Romero stemmed from his employment
with Aircraft Transparencies Repair Inc. (ATR), a company founded by Rangel
Fernandez to repair and overhaul airplane cockpit windows. ATR, which obtained
a required repair station certificate from the Federal Aviation Administration in
May of 1999, worked closely with an affiliated aviation parts broker,
Transparencies Engineering Group Inc. (TEG), which was also founded by
Fernandez and located less than a block from ATR’s premises in Hialeah, Florida.
TEG purchased aircraft windows in “as-removed” condition, sent them to ATR to
be repaired into “overhauled” condition in accordance with FAA procedures, and
then sold them to commercial airlines and other consumers. A window in
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“overhauled” condition is deemed ready for return to service and to be installed in
an aircraft.
As a certified repair station, ATR was required to prepare certain paperwork
documenting all maintenance functions performed on aircraft windows, including
work orders and maintenance release forms, also known as FAA Form 8130,
which it would then transmit to the final customer. When a window arrived at
ATR, a sequentially numbered work order listing the part number, serial number,
and date of receipt would be generated using an aviation software program, ILS
Optimizer. The work order traveled with the window as it proceeded through the
repair station, with ATR’s mechanics and production manager signing off on each
repair. Romero was ATR’s production manager and, in that capacity, was
responsible for delegating work assignments to mechanics, supervising and
inspecting their repair work, and then approving that work by signing off on the
relevant work order. Fernandez would then complete a maintenance release form
— FAA Form 8130 — certifying that the window was in the condition listed and
ready for return to service.
ATR’s repair station certificate was revoked by the FAA on July 7, 2009,
after a customer complained that it had falsely certified the airworthiness of an
airplane window. Fernandez hired an attorney to appeal the revocation to the
National Transportation Safety Board (NTSB) and, following a hearing on July 30,
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2009, an administrative judge upheld the revocation of ATR’s license. Fernandez
held a staff meeting after the NTSB appeal, notifying his employees that ATR
could not continue to operate without an FAA certificate and sending them home.
Within a few days, however, Fernandez devised a scheme to backdate work orders
and maintenance release forms so that ATR could continue to perform repair work
despite the revocation of its license. Fernandez summoned a skeleton crew of
mechanics, consisting of Romero, Saul Hernandez, and Hermes Reyes, and told
those employees that ATR was trying to get its FAA certification back, that he had
consulted with counsel, and that ATR could repair aircraft windows that it had
received before its license had been revoked. Romero agreed to come back to
work.
To avoid arousing suspicion that ATR was continuing to operate without
FAA certification, Fernandez moved the repair shop upstairs to the company’s
second floor, implemented a night shift for the repair work, and instructed his
employees to park down the road at TEG and to apply for unemployment
compensation benefits. Romero, as instructed, applied for and collected
unemployment while continuing to work at ATR, falsely certifying that he had
been permanently laid off by ATR and was unemployed. Fernandez also
instructed one of his employees, Gregorio Piscoyo, to make sure that all work
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orders were backdated to a time before ATR had its certification revoked and to
inform the other employees about the backdating scheme.
In March 2010, approximately seven months after ATR had resumed its
repair operations, FAA safety inspectors contacted Special Agent Timothy Arnold
of the United States Department of Transportation and informed him that they
believed that ATR was continuing to overhaul airplane windows despite losing its
certification. Agent Arnold launched an investigation and eventually obtained
search warrants for ATR and TEG, which were simultaneously executed in August
2010. Those searches uncovered documents showing that the sister companies had
backdated work orders and maintenance release forms associated with three
cockpit windows that, in actuality, had been received, repaired, and sold to
commercial airlines after the revocation of ATR’s certification. Romero had
supervised and approved the repairs on all three windows by signing off on the
backdated work orders. Fernandez then signed the relevant maintenance release
forms, which falsely certified that the windows had been overhauled before the
revocation of ATR’s license.
Romero was later arrested for his involvement in ATR’s continued
operations and interviewed by Agent Arnold. According to Agent Arnold’s later
testimony at trial, Romero admitted during that interview that he was aware that
ATR’s certification had been revoked on July 30, 2009, but nevertheless continued
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to approve repairs on work orders that had been backdated by other employees.
Romero also admitted that the repair work had been carried out on the second floor
of ATR’s building in order to conceal that work from the FAA, and that he had
fraudulently collected unemployment benefits.
B.
Romero, along with fifteen codefendants, was charged in a 21-count
indictment with one count of conspiring to commit mail fraud (Count 1), two
substantive counts of fraud involving aircraft parts (Counts 3 and 4), and two
counts of wire fraud relating to his collection of unemployment compensation
(Counts 5 and 6). Count 1 alleged that Romero and eleven of his codefendants
conspired to defraud commercial aviation customers by falsely certifying “the
airworthiness of aircraft cockpit windows” in various backdated documents despite
“knowing that they were not authorized [to make such certifications] by the FAA.”
In its description of the manner and means of the charged conspiracy, the
indictment more specifically alleged that Romero “generated work assignments to
ATR mechanics . . . and thereafter supervised and approved back dated work
orders” with knowledge that ATR’s certification had been revoked. Counts 3 and
4, the substantive counts for fraud involving aircraft parts, alleged that Romero
“knowingly and with the intent to defraud” made materially false representations
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when he approved repair work on two of the three backdated work orders that
federal agents had uncovered.
Romero was tried along with four of his codefendants; the remaining
defendants, including Fernandez, pleaded guilty to various charges before the start
of trial. Romero unsuccessfully moved for a judgment of acquittal under Federal
Rule of Criminal Procedure 29 at the close of the government’s case and again at
the close of all of the evidence. Romero also requested a jury instruction on good-
faith reliance on the advice of counsel based on Fernandez’s representations that he
had consulted with an attorney and that ATR could continue to repair windows that
it had in stock before the revocation of its FAA certification. The district court
declined to give the requested instruction, noting that Romero did not personally
consult with an attorney, that there was no evidence that Fernandez’s attorney had
been fully apprised of all material facts, and that Romero’s asserted reliance on
Fernandez’s representations was adequately covered by the general good-faith
instruction that it had already approved. The court later gave that general good-
faith instruction, telling the jury that “‘[g]ood faith’ is a complete defense to a
charge that requires an intent to defraud” and that an “honestly held opinion or an
honestly formed belief cannot be fraudulent intent, even if the opinion or belief is
mistaken.” The jury ultimately found Romero guilty on Counts 1, 5, and 6, but
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acquitted him of the two counts of fraud involving aircraft parts charged in Counts
3 and 4.
II.
Romero contends that the district court erred in refusing to instruct the jury
on the defense of good-faith reliance on the advice of counsel. Although he
acknowledges that he did not personally retain and consult with an attorney,
Romero asserts that “he was brought into the loop by Rangel Fernandez,” that
Fernandez apprised his own attorney of all relevant facts “regarding ATR’s license
issue,” and that Fernandez later informed him that ATR could continue performing
repair work on aircraft windows that it received before the revocation of its FAA
certification.
We review a district court’s refusal to give a requested jury instruction for an
abuse of discretion. United States v. Hill, 643 F.3d 807, 850 (11th Cir. 2011). To
merit an instruction on good-faith reliance on the advice of counsel, “a defendant
must show that (1) he fully disclosed to his attorney all material facts that are
relevant to the advice for which he consulted the attorney; and (2) thereafter, he
relied in good faith on advice given by his attorney.” Id. at 851. A district court
may properly decline to give such an instruction “if it lacks evidentiary support or
is based upon mere suspicion or speculation.” United States v. Condon, 132 F.3d
653, 656 (11th Cir. 1998) (quotation marks omitted). In addition, we will not
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reverse a district court’s refusal to give a jury instruction unless “(1) the requested
instruction was a correct statement of the law, (2) its subject matter was not
substantially covered by other instructions, and (3) its subject matter dealt with an
issue in the trial court that was so important that failure to give it seriously
impaired the defendant’s ability to defend himself.” Hill, 643 F.3d at 850.
Romero has not shown that the district court abused its discretion in refusing
to give the requested jury instruction on good-faith reliance on the advice of
counsel. He has not pointed to any legal authority to support the proposition that
such an instruction is warranted where, as here, a defendant allegedly relies on a
third party’s consultation with counsel. Indeed, existing caselaw undermines any
such suggestion. See e.g., Condon, 132 F.3d at 656 (“To be entitled to a good-faith
reliance instruction, a defendant must show that (1) he fully disclosed all material
facts to his attorney; and (2) he relied in good faith on advice given by his
attorney.”) (emphasis added); United States v. Durnin, 632 F.2d 1297, 1301 (5th
Cir. 1980) (holding that a defendant was not entitled to a good-faith reliance
instruction where there was “no evidence in the record that he either sought the
advice of counsel, personally received advice after full disclosure, or followed the
advice in good faith”). 1
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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In any event, it is also unclear from the evidence in the record whether
Fernandez fully disclosed all material facts to his attorney about the course of
conduct that he elected to follow after the revocation of ATR’s certification. And
even if he had, the district court gave a general good-faith instruction, which
notified the jury that an honestly held opinion or belief precludes a finding of
fraudulent intent. That instruction substantially covered Romero’s defense that he
relied on Fernandez’s assurance that his attorney said that ATR could continue to
work on airplane windows that it had in stock before the revocation of its license.
Accordingly, even if there were a sufficient evidentiary foundation to warrant an
instruction on good-faith reliance on the advice of counsel, there would still be no
basis for reversing the district court’s refusal to give one. See Hill, 643 F.3d at
850.
III.
Romero next contends that the jury’s verdict of acquittal on the two counts
of fraud involving aircraft parts, as charged in Counts 3 and 4, is inconsistent with
(and thus requires reversal of) his conviction for conspiracy to commit mail fraud.
While Romero concedes that inconsistent jury verdicts are generally permissible,
he insists that reversal is required in the case of “truly inconsistent verdicts on
legally interlocking charges where acquittal on one count negates a necessary
element for conviction on another count.” In Romero’s estimation, his acquittal on
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Counts 3 and 4 of the indictment, which alleged that he knowingly signed two
specific work orders that had been backdated, negates an essential element of his
conspiracy conviction.
Romero’s challenge fails for the simple reason that, even assuming that the
jury’s verdicts on Counts 1, 3, and 4 of the indictment were truly inconsistent, the
United States Supreme Court has made clear that a defendant cannot challenge a
conviction on the ground that it is inconsistent with a verdict of acquittal on
another count. See United States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471, 479
(1984) (holding that “there is no reason to vacate [a] conviction merely because the
verdicts cannot be rationally reconciled” and that jury verdicts are “insulate[d] . . .
from review” on grounds of inconsistency); Dunn v. United States, 284 U.S. 390,
393, 52 S.Ct. 189, 190 (1932) (“Consistency in the verdict is not necessary.”); see
also United States v. Mitchell, 146 F.3d 1338, 1344 (11th Cir. 1998) (“The
Supreme Court has plainly determined that jury verdicts are ‘insulated from
review’ on the ground that they are inconsistent.”) (brackets omitted); United
States v. Hope, 901 F.2d 1013, 1020 n.12 (11th Cir. 1990) (“[T]hat a jury reaches
what might be construed as inconsistent verdicts is not an adequate ground for
reversal.”). As the Supreme Court has explained, “where truly inconsistent
verdicts have been reached, ‘[t]he most that can be said . . . is that the verdict
shows that either in the acquittal or the conviction the jury did not speak their real
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conclusions, but that does not show that they were not convinced of the
defendant’s guilt.” Powell, 469 U.S. at 64–65, 105 S.Ct. at 476 (quoting Dunn,
284 U.S at 393, 52 S.Ct. at 190). A jury may reach seemingly inconsistent verdicts
through “mistake, compromise, or lenity,” which often makes it impossible to
determine whether the inconsistency favored the defendant or the government. Id.
at 65, 105 S.Ct. at 476–77.
IV.
Finally, Romero challenges the sufficiency of the evidence to support his
conviction on Count 1 of the indictment for conspiracy to commit mail fraud. We
review de novo the sufficiency of the evidence to support a conviction, viewing the
evidence in the light most favorable to the jury’s verdict and drawing all
reasonable inferences and credibility choices in its favor. United States v. Joseph,
709 F.3d 1082, 1093 (11th Cir. 2013). We must affirm a jury’s verdict “if any
reasonable construction of the evidence would have allowed the jury to find the
defendant guilty beyond a reasonable doubt.” United States v. Friske, 640 F.3d
1288, 1291 (11th Cir. 2011) (quotation marks omitted).
To sustain a conspiracy conviction, “the government must prove (1) the
existence of an agreement to achieve an unlawful objective; (2) the [defendant’s]
knowing and voluntary participation in the conspiracy; and (3) an overt act in
furtherance of the conspiracy.” United States v. McQueen, 727 F.3d 1144, 1153
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(11th Cir. 2013) (quotation marks omitted). The government “need not prove that
the defendant knew all of the details or participated in every aspect of the
conspiracy,” only that the defendant “knew the essential nature of the conspiracy.”
United States v. Miranda, 425 F.3d 953, 959 (11th Cir. 2005) (quotation marks and
brackets omitted). Whether a defendant “knowingly volunteered to join the
conspiracy may be proven by direct or circumstantial evidence, including
inferences from the conduct of the alleged participants or from circumstantial
evidence of a scheme.” Id. (quotation marks omitted).
Romero’s sufficiency challenge centers on the government’s purported
failure to prove that he “generated work assignments to ATR mechanics and
employees,” as alleged in the indictment’s description of the manner and means of
the charged conspiracy. He asserts that the evidence introduced at trial showed
that he did not generate work lists or repair orders, which were prepared by other
ATR employees.
Even assuming that the government failed to present sufficient evidence to
prove that Romero generated work assignments to ATR mechanics, the
government “need not prove all facts charged in the indictment as long as it proves
other facts charged in the indictment which do satisfy the essential elements of the
crime.” United States v. England, 480 F.2d 1266, 1269 (5th Cir. 1973); see also
United States v. Smith, 231 F.3d 800, 818 n.21 (11th Cir. 2000) (“[W]e have held
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that the government is not required to prove surplus allegations in an indictment.”).
In Count 1 of the indictment, the government also alleged that Romero had
“supervised and approved back dated work orders” with knowledge that ATR’s
certification had been revoked and, more generally, that he knowingly participated
in the fraudulent scheme to falsely certify “the airworthiness of aircraft cockpit
windows.” There was ample evidence to prove those allegations, and Romero
does not challenge the sufficiency of the evidence showing that he “supervised and
approved back dated work orders” or that he knowingly participated in ATR’s
fraudulent scheme.
Viewed in the light most favorable to the jury’s verdict, the evidence
presented at trial demonstrated that Romero, with knowledge that ATR’s
certification had been revoked, continued to supervise and approve repairs on work
orders that had been backdated. Agent Arnold testified that Romero, during his
post-arrest interview, admitted that repair work had been performed on ATR’s
second floor in order to avoid arousing the FAA’s suspicion and that he had
approved repairs on backdated work orders. Testimony from Fernandez and
ATR’s bookkeeper, Francesca Diaz, also showed that employees, including
Romero, worked at night, parked their cars away from ATR’s premises, and
fraudulently applied for unemployment compensation, all in an effort to conceal
the fact that ATR was continuing to perform repair work without the required
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certification. Although Romero disputed much of the evidence against him in his
trial testimony, the jury was entitled to both discredit that testimony and to treat it
as substantive evidence of his guilt. See United States v. Williams, 390 F.3d 1319,
1325–26 (11th Cir. 2004) (explaining that “when a defendant chooses to testify, he
runs the risk that if disbelieved the jury might conclude the opposite of his
testimony is true” and may use that testimony “as substantive evidence of the
defendant’s guilt,” particularly where “the elements to be proved for a conviction
include highly subjective elements” such as “the defendant’s intent or knowledge”)
(quotation marks omitted). There was sufficient evidence from which a reasonable
jury could not only conclude that Romero “supervised and approved back dated
work orders” with knowledge that ATR’s certification had been revoked, but that
he generally knew the essential nature of ATR’s fraudulent scheme and voluntarily
chose to participate in it. See Miranda, 425 F.3d at 959.
AFFIRMED. 2
2
This appeal was originally scheduled for oral argument but was removed from the oral
argument calendar by unanimous agreement of the panel under 11th Cir. R. 34-3(f).
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