United States v. Nelson Cristiano Machado, Jr. , 886 F.3d 1070 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16449
________________________
D.C. Docket No. 2:10-cr-00048-SPC-CM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NELSON CRISTIANO MACHADO, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 30, 2018)
Before MARCUS, ANDERSON and HULL, Circuit Judges.
HULL, Circuit Judge:
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After a jury trial, defendant Nelson Cristiano Machado appeals his three
convictions for wire fraud and his 36-month sentence. After thorough review, and
with the benefit of oral argument, we affirm.
I. 2010 INDICTMENT
Originally from Brazil, Machado came to the United States in 1992. He
lived in the Orlando, Florida area from 2005 to 2009. In 2009, Machado was
living in Bradenton, Florida, but he moved back to Brazil in December. Shortly
after Machado left for Brazil, in April 2010, a federal grand jury indicted him for
wire fraud. Still living in Brazil, Machado visited the United States in January
2016 and was arrested at the airport based on an outstanding federal indictment
that was filed back in 2010. We review that indictment and then the trial evidence
presented to the jury that convicted him.
On April 7, 2010, a federal grand jury charged Machado with three counts of
wire fraud, in violation of 18 U.S.C. §§ 1343 and 2. The indictment charged that,
from July 8, 2005 through November 3, 2005, Machado knowingly made false
representations as part of a scheme to obtain mortgage loans. The indictment also
charged that, as a result of his false representations, Machado obtained:
(1) a mortgage loan for $343,000 from American Brokers Conduit on September
23, 2005 (Count 1); (2) a mortgage loan for $147,000 from American Brokers
Conduit on September 23, 2005 (Count 2); and (3) a mortgage loan for $249,900
2
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from HSBC Mortgage Corporation on November 3, 2005 (Count 3). After his
January 2016 arrest, Machado pled not guilty and his trial began on June 21, 2016.
II. TRIAL EVIDENCE
The trial evidence established that in the fall of 2005, Machado bought three
properties in Lee County, Florida, two of which were the subject of the indictment.
To facilitate the two purchases referred to in the indictment, Machado applied for
and obtained three mortgage loans worth a total of $739,900. When he applied for
the loans, Machado had a monthly salary of $3,000 and very little savings, but the
monthly payments for those three loans totaled $5,322.94. Machado was a pastor
at a Brazilian church in Bradenton, Florida, and he led the services in Portuguese.
Machado spoke little English.
A. Property 1
As to Counts 1 and 2, on August 16, 2005, Machado entered into a contract
to buy the property located at 2142 Southeast 18th Avenue, Cape Coral, Florida
33990 for $509,900 (“Property 1”). To finance this property, Machado applied for
two mortgages from American Brokers Conduit (“ABC”)—a first mortgage in the
amount of $343,000 and a second mortgage in the amount of $147,000. Machado
used a mortgage broker in Boca Raton, Florida, Transatlantic Mortgage Lending
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Group, Inc. (“Transatlantic”), and one of its agents, Fabricio Monteiro, to help him
secure these loans.
Loan applications are usually completed by the mortgage broker.
Machado’s loan applications, which contained his information and signature,
falsely stated that Property 1 in Cape Coral would be Machado’s primary
residence, that he was employed as a manager at Shalom Tile Corporation, and that
he had $74,979 in his personal bank account. Each loan application was supported
by false documents regarding Machado’s employment and the balance of his bank
account.
When deciding whether to fund a mortgage loan, lenders like ABC rely on
information about the borrower’s employment, assets and liabilities, and intended
use for the property. Based on the information submitted, ABC decided to approve
Machado’s loan and wired the proceeds from banks located in New York to Cape
Coral Title Insurance Agency’s (“Cape Coral Title”) bank located in Florida.
On September 26, 2005, after the wire transfers were completed, Machado
personally went to the closing for Property 1 at Cape Coral Title. At trial, a
closing officer for Cape Coral Title, Teri Denison, testified that the company’s
standard practice was to make sure the borrower understood the material terms of
what he or she was signing. On this particular closing, Denison put together the
file but a coworker attended the closing on her behalf. Denison could not say
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whether a translator was present that day, but she indicated that, in her experience,
Cape Coral Title would not conduct a closing if there was not someone with the
borrower to translate the documents. 1
At the closing, Machado personally signed several documents. First, he
signed loan applications identical to the earlier false applications that had been
submitted to ABC. Second, he signed occupancy agreements and occupancy
certifications, agreeing that the Cape Coral property was to be his primary
residence. Third, he signed Truth in Lending disclosures for the loans, which set
forth the monthly payments required for the two mortgages. The disclosure
indicated that Machado’s monthly payments for the two mortgages would be
approximately $3,502.17. 2
Fourth, also at the closing, Machado signed HUD-1 statements for the loans,
which stated the sale price of the property, the amount of the loans, and the earnest
money deposit. The HUD-1 statement specified that the borrower was required to
pay a $2,000 deposit. It also indicated that the borrower was required to bring
$14,586.12 to the closing, which Machado paid through a cashier’s check that he
purchased.
1
In 2005, title agencies were not required, and it was not Cape Coral Title’s policy, to
provide translated versions of the documents to borrowers who did not speak English.
2
At trial, several witnesses acknowledged that Machado’s signatures on the earlier sales
contracts, loan applications, and other documents associated with the loan applications looked
different from his signature on the same types of documents that Machado personally signed at
the closing.
5
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At the closing, Machado also brought a $2,000 check made out to Cape
Coral Title. The check came from Machado’s bank account and was signed by
him.
B. Property 2
As to Count 3, on July 8, 2005, Machado entered into a contract to buy the
property located at 4118 Southwest Santa Barbara Place, Cape Coral, Florida
33914 for $249,900 (“Property 2”). To finance this purchase, Machado applied for
a mortgage loan from HSBC Mortgage Corporation (“HSBC”) in the amount of
$249,900. Similar to the two applications for Property 1, the loan application for
Property 2 falsely stated that it would be Machado’s primary residence, that he was
employed as an area manager at Shalom Tile Corporation, and that he had $74,979
in his bank account. This loan application was supported by a fake pay stub from
Shalom Tile Corporation and a false document verifying Machado’s bank account.
On this application, Machado failed to disclose the two mortgages he had
already obtained on Property 1. Machado also failed to disclose that, on
October 20, 2005, he had obtained a mortgage on another property in Fort Myers.
Transatlantic and Fabricio Monteiro assisted with securing the loan by submitting
the loan documents to HSBC.
When deciding whether to fund a mortgage, HSBC relies on information
like owner occupancy, reported income, liquid assets, and other liabilities. Based
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on the information submitted, HSBC decided to approve Machado’s loan and
wired the proceeds from its bank in New York to Gulf Breeze Title Insurance
Agency’s (“Gulf Breeze Title”) bank in Florida.
On November 3, 2005, Machado attended the closing for Property 2 at Gulf
Breeze Title. Mortgage documents demonstrated that Machado’s wife, Kelma,
was listed as a borrower and also attended the closing. It is undisputed that Kelma
spoke English. A closing officer for Gulf Breeze Title, Suzanne Scalise, handled
the closing.
At trial, Scalise testified that she did not remember this particular closing but
that it was her general practice to fully explain each document to the borrower and
wait for an affirmation of understanding before proceeding further. If a borrower
did not speak English, Scalise indicated that she would not have proceeded unless
there was someone present who could translate.
At this property closing, Machado signed several more documents. First,
Machado signed a loan application identical to the false applications that had been
submitted to HSBC. Second, he signed an owner occupancy affidavit, confirming
that the property was to be his primary residence. Third, Machado signed a Truth
in Lending disclosure, which set forth the payments required by the loan. This
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disclosure indicated that Machado’s monthly payment for this mortgage would be
approximately $1,820.77. 3
Fourth, at the closing for Property 2, Machado also signed a HUD-1
statement, which specified the sale price of the property, the amount of the loan,
and the earnest money deposit. The HUD-1 form stated that the borrower was
required to pay a $2,000 deposit. Prior to closing, Machado provided Gulf Breeze
Title with a signed $2,000 check from Machado’s bank account as an escrow
deposit.
At the conclusion of trial, the jury convicted Machado on all three wire fraud
counts.
III. SENTENCING HEARING
At sentencing, the district court directly addressed Machado, through a
Portuguese interpreter, to confirm that he had had the opportunity to discuss the
presentencing investigation report (“PSI”) with his attorney, and that his attorney
was able to answer his questions about the PSI. Defense counsel stated a “general
overall objection to the facts” in the PSI, and the district court stated that it would
consider that objection to be a “general denial of the allegations as contained
within the case.” The district court found that Machado had a total offense level of
19 and a criminal history category of I, which yielded an advisory guidelines range
3
The $3,502.17 for the first two loans, with the $1,820.77 for the third loan meant that
Machado had monthly payments of $5,322.94.
8
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of 30–37 months’ imprisonment. Machado’s counsel proceeded to argue for a
sentence below that advisory guidelines range.
After defense counsel’s argument, the district court asked, “Does
Mr. Machado wish to make a statement at this time?” Machado’s counsel
responded, “No, Your Honor.” The district court never addressed Machado
personally. The government then recommended a sentence of 30 months. At the
close of the government’s argument, the district court asked Machado’s counsel if
he had anything further to present, and counsel said no.
The district court sentenced Machado to 36 months’ imprisonment as to each
count, to run concurrently. The district court asked if there were any objections,
and Machado’s counsel stated, “[n]one other than those previously articulated.”
Machado timely appealed his three convictions and sentence.
IV. RIGHT TO A SPEEDY TRIAL
On appeal, Machado contends that his convictions are invalid because he
was denied his right to a speedy trial. We review the factual background as to that
issue and then the relevant law and analysis.
A. Motion to Dismiss the Indictment
Prior to trial, Machado moved to dismiss his indictment, arguing a violation
of his Fifth and Sixth Amendment right to a speedy trial. On behalf of dismissal,
Machado argued four points: (1) the over-five-year delay from the time of his 2010
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indictment until his 2016 arrest was presumptively prejudicial; (2) the government
made no effort to find him while he was in Brazil from 2009–16; (3) Machado
timely asserted his speedy trial rights; and (4) the delay in Machado’s prosecution
weakened his ability to raise defenses, procure his own witnesses, and elicit more
specific testimony from the government’s witnesses. 4 The government opposed
Machado’s motion.
B. Evidentiary Hearing
The district court held an evidentiary hearing on Machado’s motion, at
which three witnesses testified.
The first witness was Kedma Miranda, Machado’s sister-in-law. Miranda
testified that in 2009, Machado, then living in Florida, received a job offer to work
as a pastor in Brazil. Machado moved back to Brazil in December 2009. He later
visited the United States and stayed at his sister-in-law Miranda’s house in Orlando
three times: (1) for two weeks in February 2010; (2) two and a half weeks in May
2010; and (3) over two months in December 2014 to early February 2015. During
that last visit, Machado received a Florida driver’s license, obtained a credit card,
and opened a bank account.
When Machado returned to Brazil in February 2015, Miranda applied for
temporary custody of Machado’s children, and they stayed in the United States.
4
On April 15, 2016, Machado amended his motion to clarify factual information about
the length and extent of his trips to the United States between the indictment and his arrest.
10
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Miranda testified that no one in her Orlando home knew that there was a warrant
for Machado’s arrest. Miranda conceded, however, that her home was in a
different county than Machado’s former house in Bradenton.
The second witness was Roberto Peña, a U.S. Customs and Border
Protection officer. Officer Peña testified that he became involved in the
investigation when he ran a check on a January 2016 flight from Brazil and saw
that there was an arrest warrant for one of its passengers, Machado. Officer Peña
contacted the FBI to confirm the warrant and advised officers to intercept Machado
at the airport.
Officer Peña later researched Machado’s travel history and discovered that,
after the December 2009 departure, Machado returned to the United States on
February 22, 2010 and left again on March 21, 2010. Machado returned again on
May 25, 2010 and left on June 25, 2010. Over four years later, Machado returned
to the United States on December 10, 2014 and then left on February 9, 2015.
Machado’s final return to the United States was on January 21, 2016, when he was
arrested. Officer Peña testified that some of these travel entries, specifically the
outbound flights, did not show up in his initial search because of the varied use of
Machado’s suffix, middle initial, and date of birth.
The third witness was Grant Wagner, a special agent with the Florida
Department of Law Enforcement (“FDLE”). Agent Wagner testified that he began
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investigating Machado as part of a task force involving mortgage fraud. In
November 2009, Agent Wagner first tried to make contact with Machado at his
last-known address in Bradenton. At the house were Machado’s parents. Wagner
left his business card and asked them to have Machado contact him. The business
card identified Wagner as an FDLE special agent and included his cell phone
number.
Later that same day, Agent Wagner received a phone call from Machado,
who spoke little English and asked Wagner to speak with Kelma, Machado’s wife.
Wagner spoke with Kelma and explained that he “wanted to talk about some of the
properties in Lee County.” Kelma told Wagner that she and Machado were willing
to talk, but they were out of town until the following week. Wagner admitted that
he told Kelma that he would attempt to locate a Portuguese translator and contact
them at a later date. Wagner never reached back out and did not recall any further
contact with Machado or Kelma.
The day after Machado was indicted in April 2010, Agent Wagner made
efforts to locate Machado. For example, Wagner returned to Machado’s former
Bradenton address to arrest him, but someone else was living at the house who
knew Machado. That person at the house explained that her husband took over as
pastor at Machado’s former church and she thought that Machado had moved back
to Brazil. Wagner then went to Machado’s former church, where Machado had
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served as a pastor, but Machado was not there either. A church employee told
Wagner that she thought Machado had moved back to Brazil.5
Agent Wagner eventually contacted Homeland Security and was told that
Machado had already left the United States in March 2010. Thereafter, Wagner
checked several databases periodically to see if Machado had renewed his driver’s
license, gotten a job in the United States, or indicated his presence in some other
fashion. Wagner did not document every one of his searches, but he did record at
least one search in February 2014. This February 2014 analysis of various
databases revealed that Machado did not have a current driver’s license or
employment in the United States. 6 Wagner stated that he did not receive any
notice of Machado’s return to the United States before 2016.
Wagner also confirmed that Machado’s arrest warrant was entered into the
National Crime Information Center (“NCIC”) system soon after the April 2010
indictment. The NCIC system allows law enforcement to cross-reference arrest
warrants nationwide. To Wagner’s knowledge, the warrant remained active in the
NCIC system until Machado’s arrest in 2016.
5
Machado complains that Wagner did not contact the woman’s husband who had taken
over the role of pastor or investigate whether this church had any connection to Machado’s new
church in Brazil. But, as explained later, we look at what steps Agent Wagner actually took to
locate Machado, not at each thing the government could have also done.
6
Wagner’s database checks did not query for newly opened banking or credit card
accounts.
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C. District Court’s Order
In its order dated May 12, 2016, the district court denied Machado’s motion
to dismiss the indictment. The district court weighed the four factors set out in
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), and concluded that the
government had not deprived Machado of his right to a speedy trial. In doing so,
the district court determined: (1) the delay was sufficient to trigger a speedy trial
inquiry; (2) the government did not deliberately delay Machado’s arrest and acted
in good faith and with due diligence; (3) Machado timely invoked his speedy trial
rights; and (4) Machado did not establish prejudice.
D. Our Analysis of the Barker Factors
The Sixth Amendment to the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.”
U.S. Const., amend. VI. The Supreme Court has established a four-factor test to
determine whether a defendant has been deprived of the constitutional right to a
speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the
defendant’s assertion of the right; and (4) the actual prejudice to the defendant.
Barker, 407 U.S. at 530, 92 S. Ct. at 2192. Machado contests only the district
court’s findings and conclusions as to the second and fourth factors.7
7
Whether the government deprived a defendant of the constitutional right to a speedy
trial is a mixed question of fact and law. United States v. Villarreal, 613 F.3d 1344, 1349 (11th
Cir. 2010). We review a district court’s factual findings for clear error and its legal conclusions
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As to the second Barker factor about the reason for the delay, we weigh the
relative culpability of the government and the defendant for the delay. United
States v. Bagga, 782 F.2d 1541, 1543 (11th Cir. 1986) (“[T]he conduct of the
government must be weighed against the conduct of the defendant.”). Consistent
with this notion, “deliberate attempt[s] to delay the trial . . . should be weighted
heavily against the government,” whereas a more neutral reason such as negligence
should be weighted less heavily. Barker, 407 U.S. at 531, 92 S. Ct. at 2192. The
longer the delay, however, the heavier the government’s negligence must be
weighted. Doggett v. United States, 505 U.S. 647, 657, 112 S. Ct. 2686, 2693
(1992) (“[T]he weight we assign to official negligence compounds over time as the
presumption of evidentiary prejudice grows.”). The burden is on the government
to explain the cause of pre-trial delay. United States v. Ingram, 446 F.3d 1332,
1337 (11th Cir. 2006).
In cases where the defendant is missing, “the government is not required to
exhaust all conceivable avenues” in finding him or her. Bagga, 782 F.2d at 1543.
The Sixth Amendment mandates only a “diligent, good-faith effort” on behalf of
the government to find the defendant and bring him or her to trial. Id. (quotation
marks and citation omitted). While the defendant’s absence from the country does
de novo. Id. “A factual finding is clearly erroneous only if, after we review the evidence, we are
left with the definite and firm conviction that a mistake has been committed.” Id. (citation and
internal quotation marks omitted).
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not wholly relieve the government of its obligation, the government is not required
to pursue “futile legal gestures” in the face of uncertain extradition. Id.
Our precedent in United States v. Bagga, 782 F.2d 1541, 1543 (11th Cir.
1986), is instructive. In Bagga, the defendant left for India after learning his wife
had become ill and was indicted in absentia. Id. at 1542. Upon returning to the
United States nearly six years later, the defendant turned himself in and moved to
dismiss his indictment on speedy trial grounds. Id. The district court held an
evidentiary hearing and then denied the defendant’s motion to dismiss. The
evidence showed that law enforcement had registered the defendant in a national
crime information network and had attempted to locate him at his last-known
address and at a restaurant owned by his family. Id. at 1543–44.
On appeal, the defendant Bagga claimed that the government’s investigation
was insufficient because there was no notice placed on his passport and because
the government did not seek to extradite him to the United States. Id. at 1543.
In affirming the district court’s denial of Bagga’s motion, this Court determined
that the defendant’s contentions about the passport pushed the government’s
obligation “too far” and that the government is not tasked with pursuing every lead
on the “off-chance” that someone may have knowledge of the defendant’s exact
address abroad. Id. at 1543–44 (“The best that can be said is that if the
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government was at fault for not locating Bagga in India, it was clearly no more
than mere negligence.”).
Here, the district court did not err by concluding that the government made
good-faith, diligent efforts to locate and arrest Machado.8 In fact, compared to the
law enforcement in Bagga, Agent Wagner engaged in similar, if not greater,
investigative efforts. Id. In November 2009, Wagner attempted to locate Machado
in Bradenton, Florida. Wagner left a business card with Machado’s parents that
identified him as a special agent with the FDLE and provided a contact number.
Wagner then spoke with Machado on the phone and, through Machado’s wife,
informed Machado that he wanted to discuss the properties in Lee County. 9
Approximately a month later, Machado left for Brazil and did not tell Agent
Wagner. After Machado’s indictment was returned in April 2010, Wagner
attempted to arrest Machado at his last-known address in Bradenton and also
visited Machado’s former church. Individuals at both locations corroborated that
8
The district court’s order contained a slight error, stating that Machado “left the country
with his family, and never contacted Agent Wagner despite being requested to do so
pre-indictment.” While it is true that Machado did not reach back out to Agent Wagner after
their November 2009 conversation, nothing in the record evidence suggests that Agent Wagner
asked him to do so. The district court’s order conflates their conversation with Agent Wagner’s
request that Machado’s parents have Machado contact him, which Machado did.
Notwithstanding this error, we affirm the remainder of the district court’s factual findings and
analysis.
9
Despite Wagner’s assurance of seeking a translator and Machado’s knowledge that law
enforcement was trying to contact him about properties in Lee County, the record suggests that
neither Wagner nor Machado attempted further phone contact after this initial call. As to relative
culpability, this fact is largely neutral. See Bagga, 782 F.2d at 1543.
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they “thought” Machado had moved back to Brazil. Thereafter, Wagner placed
Machado’s arrest warrant for interception within the NCIC system and periodically
checked to see if Machado had renewed his driver’s license, drawn a wage, or
otherwise returned to the United States.
While Machado returned to the United States for brief periods of time in
2010 and 2014, he resided with his sister-in-law in a different county, utilized
different variations of his name for travel, and never attempted to contact Wagner.
Wagner was not aware of Machado’s presence in the United States until the arrest
in 2016, and Wagner’s database searches did not uncover Machado’s updated
license, credit card, or bank account. These failures speak more to technological
gaps than to Wagner’s negligence. Wagner’s efforts included planned interception
of Machado at the border via the NCIC system and periodic searches for indicia of
Machado’s continued presence in the United States. These efforts were carried out
in good faith and with due diligence, and were all that was required of Wagner.10
The district court’s factual findings in this regard were not clearly erroneous.11
10
The government was not required to seek extradition in this wire fraud case involving
only $739,000 in loans. Although, in his brief, Machado contends that there is an extradition
treaty between the United States and Brazil covering wire fraud, neither the Brazilian
Constitution nor that treaty imposes a requirement for the extradition of a Brazilian national in a
case like this. See Treaty and Additional Protocol Signed at Rio de Janeiro, U.S.-Braz., art. VII,
Dec. 17, 1964, 15 U.S.T. 2093 (“There is no obligation upon the requested State to grant the
extradition of a person who is a national of the requested State . . . .”).
11
Alternatively, because the government at a minimum acted in good faith, any alleged
failure to more diligently pursue Machado should not weigh heavily against the government.
See Ingram, 446 F.3d at 1339–40.
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As to the fourth Barker factor about prejudice, Machado has not
demonstrated actual prejudice. “[T]he defendant must demonstrate actual
prejudice unless each of the first three factors ‘weigh[s] heavily against the
government.’” United States v. Harris, 376 F.3d 1282, 1290 (11th Cir. 2004);
United States v. Mitchell, 769 F.2d 1544, 1547 (11th Cir. 1985) (“[U]nless the first
three Barker factors all weigh heavily against the government, the defendants must
demonstrate actual prejudice.”). Because the first three Barker factors do not all
weigh heavily against the government, Machado was required to demonstrate
actual prejudice.
To show actual prejudice, the defendant must show (1) oppressive pretrial
incarceration, (2) his own anxiety and concern, or (3) the possibility that his
defense was impaired because of the delay. United States v. Dunn, 345 F.3d 1285,
1296 (11th Cir. 2003). Because Machado contends he was not aware of the 2010
indictment, Machado argues only that the delay prejudiced his ability to prepare a
complete defense. Such prejudice may be demonstrated through the death or
disappearance of a witness or by a defense witness’s inability to “recall accurately
events of the distant past.” Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Yet, as this
Court has held, mere conclusory allegations are insufficient to establish actual
prejudice. United States v. Hayes, 40 F.3d 362, 366 (11th Cir. 1994).
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Machado contends that he suffered actual prejudice from being unable to
locate persons and records associated with Transatlantic, the mortgage broker, after
it went out of business. Machado argues that he could not find witnesses to
authenticate documents from the now-defunct company or to show how
Transatlantic duped him. However, Machado’s argument fails because he did not
offer evidence about when Transatlantic went out of business, and Machado was
largely in Brazil after his indictment. On the record before us, it is mere conjecture
that Transatlantic witnesses regarding Machado’s 2005 loans would have been any
more available in 2010 than they were in 2016. In any event, it is not clear what
witnesses Machado would have called or what evidence he would have presented,
and a conclusory allegation of prejudice is insufficient.
Machado also argues that he was prejudiced by the inability of government
witnesses to recall certain, specific facts due to fading memories. His argument
ignores that the government carries the burden of proving its criminal case beyond
a reasonable doubt and that any deficiency of the government’s witnesses was
suffered equally, if not more so, by the government. See United States v. Loud
Hawk, 474 U.S. 302, 315, 106 S. Ct. 648, 656 (1986) (“[D]elay is a two-edged
sword.”). Alternatively, the closing officers from 2005 who testified for the
government conducted many closings, and Machado has not shown they would
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have remembered these particular closings any more in 2010 than in 2016.
Machado has not demonstrated actual prejudice on that basis either.
For all these reasons, we conclude that Machado’s right to a speedy trial was
not violated.
V. SUFFICIENCY OF THE EVIDENCE
Machado asserts that the trial evidence was insufficient to prove that he
possessed culpable knowledge necessary for his wire fraud convictions because he
spoke little English and the real estate documents, which were written in English,
were not explained to him. As he did at trial, Machado continues to aver that he
was “lured” into these house purchases by an “unscrupulous” mortgage broker who
altered documents with falsehoods and submitted them without Machado’s
knowledge.12
To sustain a conviction for wire fraud, under 18 U.S.C. § 1343, the
government must prove that the defendant: “(1) participated in a scheme or artifice
to defraud; (2) with the intent to defraud; and (3) used, or caused the use of,
interstate wire transmissions for the purpose of executing the scheme or artifice to
defraud.” United States v. Martin, 803 F.3d 581, 588 (11th Cir. 2015) (quoting
12
We review de novo challenges to the sufficiency of the evidence to support a
conviction. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003) (involving wire fraud
convictions). In so doing, we draw all reasonable inferences and resolve all questions of
credibility in favor of the government. Id. And thus, as a practical matter, we affirm the verdict
“if a reasonable juror could conclude that the evidence establishes guilt beyond a reasonable
doubt.” Id.
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United States v. Williams, 527 F.3d 1235, 1240 (11th Cir. 2008)). Machado
argues that the government failed to prove intent to defraud.
Wire fraud may be proven by circumstantial evidence. Id. Likewise, a jury
may infer the “intent to defraud” from the defendant’s conduct and circumstantial
evidence. See United States v. Maxwell, 579 F.3d 1282, 1301 (11th Cir. 2009).
Evidence that the defendant profited from a fraud may also provide circumstantial
evidence of the intent to participate in that fraud. United States v. Naranjo, 634
F.3d 1198, 1207 (11th Cir. 2011).
Viewed in the light most favorable to the government and the jury’s verdict,
the record evidence sufficiently established that Machado knowingly participated
in a scheme to obtain over $700,000 in fraudulent loans from various banking
institutions by making material misrepresentations. Machado’s loan applications
each contained false statements about his intended use for the collateral, his assets
and liabilities, and his employment status.
We recognize that the trial evidence suggested that mortgage brokers, such
as Transatlantic, typically complete the initial loan applications and that some of
Machado’s signatures appeared different than his known signature and thus
appeared to be forged. However, at the property closings, Machado signed
numerous documents containing material misrepresentations identical to those in
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his initial loan applications, effectively adopting these falsehoods and positively
confirming his role in the scheme to defraud the mortgage lenders.
These documents at the closings included not only loan applications
matching those ostensibly submitted earlier by his mortgage broker but also
included occupancy agreements and certifications, Truth in Lending disclosures,
and HUD-1 statements. Apart from the loan applications themselves, the
occupancy documents confirmed Machado’s stated intent to use each property as a
primary residence. Machado also presented signed deposit checks at the closings,
which further demonstrated his knowledge of the transactions.
And while neither of the closing officers could recall the specific closing, the
interactions of the parties, or the individuals present on those days, their testimony
about standard practices sufficiently established that Machado was not ignorant of
the documents he signed. Both closing officers indicated that their company
policies dictated a thorough review of the documents and that they would not have
proceeded with a non-English borrower absent some method of translation. This
testimony was sufficient for a jury to infer that Machado understood what he was
signing and knowingly participated in the scheme to defraud the lenders. As even
stronger evidence, Machado’s wife, Kelma, who did speak English, was present at
the closing for at least Property 2 and was a party to that transaction. As such, she
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had an interest in ensuring that Machado understood the transaction and the
documents along with her.
As to profits from the scheme, Machado purchased over $700,000 in
property and debt financed nearly the entire amount. Machado’s profit is also
circumstantial evidence of his intent. Even without a line-by-line translation of
each document, no reasonable person could have looked at such significant dollar
amounts and failed to understand the gravity of these transactions, their
questionable financing, or their inconsistency with one’s lifestyle and means.
Moreover, the lending disclosures signed by Machado at each closing
demonstrated to Machado that, despite his true monthly salary of $3,000, he was
taking on over $5,000 in monthly mortgage payments for all three loans.
Accordingly, we conclude that sufficient evidence supported Machado’s
culpable knowledge and intent to commit wire fraud and thus we sustain his
convictions.
VI. EXCLUSION OF EVIDENCE
A. Monteiro’s Indictment
During trial in 2016, Machado sought to introduce a 2009 federal indictment
that charged Fabricio Monteiro, the agent at Transatlantic, with four counts of
providing false information in connection with personal mortgage applications
during 2006. Machado argued that the district court should take judicial notice of
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Monteiro’s indictment and allow Machado to introduce evidence of the indictment
to show that Machado was not aware of the misrepresentations in his loan
applications and that Monteiro lied to and otherwise misled Machado. The
government objected, arguing that Monteiro’s offense conduct in the indictment
did not concern mortgages Monteiro obtained on behalf of Machado, it did not
show any involvement in a conspiracy with Machado, and it did not represent a
conviction or mortgage fraud related to Machado.
The district court provisionally excluded the indictment as to relevance and
noted: (1) Monteiro was not listed as a witness, codefendant, or co-conspirator;
(2) the acts for which Monteiro was indicted occurred after the instant offense
conduct; and (3) Monteiro’s case shared no financial institutions in common with
Machado’s. The district court also found that the charged misrepresentations
against Monteiro were factually distinct from those in Machado’s case. When
Machado’s counsel argued that the exclusion of this evidence violated Machado’s
rights to due process, confrontation, and to present a complete defense, the district
court responded:
Mr. Machado has every right to a defense and every right to, as you
put it, quote, some other dude did it, but at this point there’s no link
between any communications or any talk or anything that was done
between Mr. Machado and Mr. Monteiro and Mr. Monteiro’s
indictment in this case. I agree with you and the indictment can come
in. It’s not an issue of is it admissible because it’s a business record
or something like that. It’s admissible, I understand that, but it’s not
admissible if it’s not relevant in this case, and right now there is no
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evidence to assert that this indictment is relevant in this case. I have
indicated to you if at some point it appears that the indictment may be
relevant, I will revisit the situation, but at this point it does not come
in as a relevant document.
The indictment was never admitted.
At the close of the government’s case, Machado moved for a mistrial based
on the exclusion of the indictment offered by the defense, and the district court
denied the motion. 13
B. Right to Present a Complete Defense
On appeal, Machado argues that his ability to present a complete defense
was severely hindered by the district court’s exclusion of Monteiro’s indictment.14
Implicit in a criminal defendant’s constitutional rights under the Fifth and
Sixth Amendments is the right to present evidence in his or her favor. See United
States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). Subject to the standard rules
of evidence, a district court’s decision to exclude favorable evidence offered by the
defendant may violate a defendant’s rights if the evidence falls under one of these
13
At trial, Machado also sought to introduce Transatlantic documents seized by the
government from a third-party server and later argued that their exclusion warranted a new trial.
Yet, Machado’s appellate brief raises as error only the exclusion of Monteiro’s indictment.
There is no evidence in the record in Machado’s case of what happened to Monteiro’s
indictment.
14
We review the evidentiary rulings of the district court for clear abuse of discretion.
United States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002). Even if we determine that an
abuse occurred, we will overturn an evidentiary ruling only if it resulted in a substantial
prejudicial effect. United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004). When an
evidentiary ruling implicates a constitutional question, we review those legal questions de novo.
United States v. Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006).
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categories: (1) evidence directly pertaining to any of the elements of the charged
offense or an affirmative defense; (2) evidence pertaining to collateral matters that,
through a reasonable chain of inference, could make the existence of one or more
of the elements of the charged offense or an affirmative defense more or less
certain; (3) evidence that could have a substantial impact on the credibility of an
important government witness; and (4) evidence that tends to place the story
presented by the prosecution in a significantly different light, such that a
reasonable jury might receive it differently. Id. at 1363 & n.2; see Taylor v.
Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653 (1988) (“The accused does not
have an unfettered right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence.”). Even when one of the
four circumstances listed in Hurn is present, “otherwise relevant evidence may
sometimes validly be excluded under the [Federal] Rules of Evidence.” See Hurn,
368 F.3d at 1363 n.2.
If a district court erroneously excludes one of these forms of evidence and a
defendant’s right to present evidence was actually violated, we must then assess
whether this error was “harmless beyond a reasonable doubt.” Id. at 1362–63.
Yet, a district court may exclude defense-favoring evidence where it “does not bear
a logical relationship” to an element of the offense or affirmative defense, or where
the relationship between the two is simply “too attenuated.” Id. at 1365–66. This
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Court has emphasized that “there comes a point—and a district court is perhaps in
the best position to judge this—when the chain of inferences linking evidence and
the legally relevant point to be proven is simply too long, dubious, or attenuated to
require that the evidence be introduced.” Id. at 1366.
To be admissible, evidence must be relevant and not otherwise excluded by
the rules of evidence. Evidence is relevant if “(a) it has any tendency to make a
fact more or less probable than it would be without the evidence” and “(b) the fact
is of consequence in determining the action.” Fed. R. Evid. 401. However, a
district court may still exclude relevant evidence if “its probative value is
substantially outweighed by [the] danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
In this case, the district court excluded Monteiro’s indictment on relevance
grounds. In doing so, it aptly pointed out that Monteiro was not a witness,
codefendant, or co-conspirator in this case; that the fraud for which Monteiro was
indicted concerned separate loans that Monteiro sought for himself, and not in his
role as a mortgage broker; and that Monteiro did not commit the fraud on his
personal loans until over six months after Machado’s loan transactions were
completed.
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On appeal, Machado contends that Monteiro’s indictment fits within the
second category of favorable evidence—namely, a collateral matter that, through a
chain of inferences, tends to make one or more elements of a claim or defense
more or less certain. At trial, Machado offered Monteiro’s indictment as evidence
that Machado was not aware of the misrepresentations contained in his loan
documents, especially the loan applications. Machado argues the evidence of
Monteiro’s alleged participation in similar crimes made Monteiro’s culpability in
the instant offense more probable and made Machado’s participation less probable.
The district court, however, correctly concluded that Monteiro’s indictment
was not relevant, and there was no link between Monteiro’s charged crime and
Machado’s. As this Court has recognized, it is within the district court’s discretion
to determine when the chain of evidentiary inferences is “too long, dubious, or
attenuated.” Hurn, 368 F.3d at 1366. The charges against Monteiro in the
indictment did not concern the same transaction, the same parties, or even
Monteiro’s capacity as an agent or employee of Transatlantic. In fact, the
indictment charged that Monteiro had falsely represented that he was employed by
V.N.W. Services, Corp. There is no logical link between the charged fraud of
Monteiro and the fraud in this case, other than that they both concern mortgage
loans. Indeed, whether Monteiro made false representations on his own loan
applications has no bearing on whether Machado was aware of the
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misrepresentations contained in Machado’s separate applications. Simply put,
Monteiro’s indictment was not relevant.
In any event, the evidence proffered for this link was merely an untried
indictment, which is not dispositive, or even evidence, of what conduct Monteiro
actually committed. To somehow connect Monteiro’s indictment to Machado’s
loans, defense counsel would have had to argue that Monteiro’s indictment is
evidence of guilt and fraud by Monteiro, which would have been contrary to the
district court’s instruction that the indictment against Machado was not itself
evidence of guilt. Thus, even if the Monteiro indictment had relevance here, it also
had a strong potential to confuse the jury. In any event, even without the Monteiro
indictment, Machado was still able to point to Monteiro, refer to testimony that
mortgage brokers typically complete their clients’ loan applications, and point out
that Machado’s signature on some application-related documents appeared
different than his verified signature on the closing documents.
The district court did not abuse its discretion by excluding Monteiro’s
indictment because it was too attenuated from the legally relevant point of
Machado’s intent and it had a strong potential to confuse the jury. Because
Machado’s right to introduce evidence in his defense was not violated, we need not
examine whether any error was harmless beyond a reasonable doubt.
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VII. RIGHT TO ALLOCUTION
Lastly, Machado argues that the district court plainly erred when it failed to
afford him the right to allocution before imposing a sentence. The government
concedes plain error on this issue, and we agree.15
The right to allocution is “firmly entrenched in our criminal jurisprudence.”
United States v. Perez, 661 F.3d 568, 584 (11th Cir. 2011). It provides a defendant
the opportunity to plead personally with the district court for leniency in
sentencing and to state any potentially mitigating factors for consideration. Id. at
583. Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) codified this right by
requiring the district court, before imposing sentence, to “address the defendant
personally . . . to permit the defendant to speak or present any information to
mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii) (emphasis added). Where
the possibility of a lower sentence exists, we presume prejudice from the denial of
the defendant’s right to allocution. Perez, 661 F.3d at 586; United States v.
Carruth, 528 F.3d 845, 847 n.4 (11th Cir. 2008); see United States v. Doyle, 857
F.3d 1115, 1121 (11th Cir. 2017) (noting general presumption of prejudice when
15
Machado did not raise an objection at the sentencing hearing. When a party does not
timely object to a district court’s ruling, we review only for plain error. United States v. Perez,
661 F.3d 568, 583 (11th Cir. 2011). To find a reversible error under the plain error standard, we
must conclude that: (1) an error occurred; (2) it was plain; (3) it affected substantial rights in that
it was prejudicial; and (4) it affected the fairness, integrity, or public reputation of the judicial
proceedings. Id.
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the district court fails to afford the right to allocution, “even if [the defendant]
received a sentence at the low end of his advisory guidelines range”)
In Perez, this Court held that the district court committed plain error by
directing the question, “will the defendant be allocuting?” to the defendant’s
attorney rather than to the defendant. See 661 F.3d at 584. After conferring with
the defendant, defense counsel stated that the defendant did not wish to address the
court. Id. We reasoned that the district court’s question and its direction to
defense counsel did not demonstrate clearly and convincingly that the defendant
knew he had the right to speak on any subject of his choosing prior to the
imposition of sentence. Id. at 585. We also determined that the error affected the
defendant’s substantial right because he could have received a lower sentence. Id.
at 585–86.
In this case, the district court’s failure to address Machado personally about
his right to allocution constitutes plain error. The district court asked counsel,
“Does Mr. Machado wish to make a statement at this time?” Without addressing
Machado on the record, defense counsel responded, “No, Your Honor.” While we
recognize the difficulties of communicating through an interpreter, this does not
lessen or change the defendant’s right to allocution.
Machado was not afforded his right to allocution. Because Machado was
also not sentenced at the low end of his advisory guidelines range, we presume
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prejudice. Perez, 661 F.3d at 586. And, where the defendant shows prejudice, we
also presume satisfaction of the fourth element of the plain-error standard. Doyle,
857 F.3d at 1118. Thus, we vacate Machado’s sentence and remand for allocution
and resentencing.
VIII. CONCLUSION
In summary, we affirm Machado’s three convictions but vacate his sentence
and remand for resentencing consistent with this opinion.
CONVICTIONS AFFIRMED; SENTENCE VACATED AND
REMANDED.
33