                Case: 16-15025       Date Filed: 12/01/2017       Page: 1 of 33


                                                                   [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-15025
                               ________________________

                         D.C. Docket No. 2:10-cr-14096-JEM-1



UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,
                                             versus

RAVINDRANAUTH ROOPNARINE,

                                                                    Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                             _______________________

                                     (December 1, 2017)

Before JORDAN and JILL PRYOR, Circuit Judges, and DUFFEY, * District Judge.




*
 Honorable William S. Duffey, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
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PER CURIAM:

      Ravindranauth Roopnarine (“Appellant”) appeals his convictions and

sentence after a jury found him guilty of one count of conspiring to commit mail

fraud and wire fraud, in violation of 18 U.S.C. § 1349, one count of wire fraud, in

violation of 18 U.S.C. § 1343, and one count of mail fraud, in violation of

18 U.S.C. § 1341. Appellant asserts several issues on appeal, which we address in

turn. After reviewing the extensive trial record and with the benefit of oral

argument, we affirm Appellant’s conviction and sentence.

                                I. BACKGROUND

      In 2006, Appellant developed a scheme to acquire more than 181 residential

properties in Florida using “straw buyers” to secure mortgages. The scheme

included Appellant directing other scheme participants to incorporate three Florida

corporations for use in facilitating purchases of the homes: (1) DKR Florida;

(2) Vero Lakes New Home Center; and (3) Century Star Realty Group/Sunrise

New Homes.

      Appellant’s scheme generally involved a “straw buyer” purchasing a home

from a homebuilder who agreed with Appellant to sell homes for a price below the

home’s fair market value. Appellant gave the straw buyer $10,000 to serve as the

home purchaser. The straw buyer applied to a mortgage lender for a loan to

purchase the home. The straw buyer applied for a loan in the amount of the fair


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market value purchase price of the home, not the discounted price for which the

homebuilder agreed with Appellant to sell the home. The straw buyer used his

own credit information to secure the loan.

      Appellant received that portion of the mortgage loan represented by the

difference between the discounted home purchase price and the amount of the loan

based on the home’s fair market price. Appellant promised the straw buyers that

he would make the mortgage loan payments with monies he received in renting the

homes. Appellant also told straw buyers that when Appellant sold a home for a

price greater than the purchase price mortgage, he would split the excess sale funds

with the straw buyer. Mortgage lenders were not told of these financial

arrangements to which Appellant and his straw buyers agreed.

       Soon after the straw purchases commenced, Appellant had difficulty

covering mortgage payments because he could not rent the homes and because he

used the loan proceeds for personal expenses. To sustain the mortgages he

sometimes used loan proceeds from new loans to make payments on existing

mortgages. Of the 181 homes that Appellant convinced straw buyers to purchase,

all but seven were foreclosed on by mortgage lenders.

      In 2008, Ikramul Azam Hosein, one of Appellant’s straw buyers, and his

wife, reported Appellant to the FBI after Appellant stopped making mortgage

payments on Hosein’s home and the bank foreclosed on the property.


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      On December 9, 2010, a federal grand jury in the Southern District of

Florida returned an 11-count indictment against Appellant, which included charges

for wire fraud, under 18 U.S.C. § 1343, mail fraud, under 18 U.S.C. § 1341,

conspiracy to commit wire fraud, mail fraud, and bank fraud, under

18 U.S.C. § 1349, money laundering, under 18 U.S.C. § 1956(a), and conspiracy to

commit money laundering, under 18 U.S.C. § 1956(h). On March 7, 2016,

Appellant’s jury trial began. Upon the government’s motion, the District Court

dismissed certain of the counts. The jury ultimately convicted Appellant of mail

fraud, wire fraud, and conspiring to commit mail fraud and wire fraud. On

July 14, 2016, the District Court sentenced Appellant to 262 months imprisonment,

and ordered him to pay more than $9 million in restitution.

                         II. STANDARDS OF REVIEW

      “We review challenges to the sufficiency of the evidence in criminal cases

de novo, viewing the evidence in the light most favorable to the government.”

United States v. Dominguez, 661 F.3d 1051, 1061 (11th Cir. 2011); see also

United States v. Williams, 527 F.3d 1235, 1244 (11th Cir. 2008). The district

court’s “evidentiary rulings” are reviewed “for a clear abuse of discretion.” United

States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003). Jury instructions challenged

in the district court are reviewed “de novo to determine whether the instructions

misstated the law or misled the jury to the prejudice of the objecting party.”


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United States v. House, 684 F.3d 1173, 1196 (11th Cir. 2012) (quoting United

States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009)). We review de novo the

interpretation and application of the Sentencing Guidelines, but we review the

underlying factual findings for clear error. United States v. Rodriguez, 732 F.3d

1299, 1305 (11th Cir. 2013).

                                 III. DISCUSSION

      Appellant challenges his conviction on the following grounds: (1) the

evidence was insufficient to support his conviction; (2) the district court erred in its

evidentiary rulings, including (i) limiting defense counsel’s cross-examination of

government witness Jose Cadena and (ii) allowing an undercover government

agent to testify without disclosing his true name; (3) the district court erred by

giving a Pinkerton and deliberate ignorance instruction; and (4) the district court

wrongfully calculated the loss amount and gross receipts under the sentencing

guidelines.

                                          A.

      Appellant challenges whether the evidence was sufficient to support his

substantive convictions of mail fraud and wire fraud and his conviction of

conspiracy to commit mail fraud and wire fraud. At issue is whether a reasonable

fact-finder could have determined that the evidence proved the defendant’s guilt

beyond a reasonable doubt. United States v. Langford, 647 F.3d 1309, 1319 (11th


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Cir. 2011); see also United States v. Smith, 459 F.3d 1276, 1286 (11th Cir. 2006).

We will not disturb the verdict unless no reasonable trier of fact could find guilt

beyond a reasonable doubt. United States v. Lee, 603 F.3d 904, 912 (11th Cir.

2010). “[C]ircumstantial evidence may be used to establish an element of a crime,

even if the jury could draw more than one reasonable inference from the

circumstantial evidence, and in judging sufficiency of the evidence, we apply the

same standard whether the evidence is direct or circumstantial.” Langford,

647 F.3d at 1319.

      To establish that Appellant committed wire fraud, the government must

prove that he: (1) intentionally participated in a scheme to defraud; and (2) used

wire communications to further that scheme. 18 U.S.C. § 1343; see Belt v. United

States, 868 F.2d 1208, 1211 (11th Cir. 1989). In order to establish that Appellant

committed mail fraud, the government must prove that he: (1) intentionally

participated in a scheme to defraud; and (2) used the mails to further that scheme.

18 U.S.C. § 1341; see United States v. Wingate, 997 F.2d 1429, 1432 (11th Cir.

1993). Because the elements of wire fraud are analogous to those of mail fraud,

the statutes generally are interpreted similarly. Belt, 868 F.2d at 1211 (“The wire

fraud statute tracks the language of the mail fraud statute . . . [and] [t]he statutes

are given a similar construction and are subject to the same substantive analysis.”);

see also Langford, 647 F.3d at 1320.


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      1.     Wire Fraud

      Appellant’s wire fraud conviction involved the transfer of $171,000, on or

about October 12, 2007, from Washington Mutual Bank to an escrow account for

the purchase of a property at 373 N.E. 26th Place, Unit 102, Homestead, Florida

(the “26th Place Property”). The record reveals that Ikramul Azam Hosein

(“Hosein”), one of Appellant’s straw buyers, testified at trial that he signed a

fraudulent mortgage loan application for the property. Hosein admitted that he

signed the loan documents for the purchase of the property, that his gross monthly

income of $15,000 stated on the documents was false, and that he did not pay the

amount stated on the documents for the closing of the property. Hosein also

identified documents establishing that the principal amount loaned for the property

was $171,000, and that the loan proceeds were wired from Washington Mutual

Bank to an escrow agent in Florida.

      The record includes testimony from Washington Mutual Bank underwriter

Jose Cadena, who testified during trial that he reviewed the loan file for the

26th Place Property, and would have considered “[i]ncome, credit, assets, the

collateral, and the down payment” in making the underwriting determination. Tr.

Transcript at 108-09 (Doc. 360). The testimony included the following exchange

regarding the materiality of who provided the down payment for the property:




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      Q:    So if an underwriter learned that the down payment was not
            coming from the borrower, would that be significant and
            material?
      A:    Yes, it would.
      Q:    Why is that?
      A:    The borrower has nothing in the transaction, no risk. The bank
            is putting up all the risk and it would have been potentially
            ineligible if we knew where it came from. Gifts are allowed
            from family members, but not from nonfamily members.
            ...
            That way they have something to lose. Right now if they have
            nothing in the transaction, they’ve really lost nothing if there is
            a loss on the property and the bank takes all the risk.
      Q:    And if an underwriter were to learn that the source of a down
            payment was not coming from the borrower but from
            somewhere or someone else, another company for example,
            would that be material?
      A:    Yes.

Tr. Transcript at 112-13 (Doc. 360). The record shows the evidence was sufficient

to support Appellant’s wire fraud conviction, and we find that a reasonable fact-

finder could have determined that the evidence proved Appellant’s guilt beyond a

reasonable doubt.

      2.    Mail Fraud

      Appellant’s mail fraud conviction, according to the government’s

indictment, is based on a mailing, on or about October 12, 2007, of a warranty

deed and mortgage for a property located at 2730 N.E. 4th Street, Unit 205,




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Bldg. 19, Homestead, Florida (the “4th Street Property”). Hosein, the straw buyer,

testified about this property. 1

       Appellant challenges the sufficiency of the evidence to support the mailing

element of the offense, claiming there is no evidence the mail was used to transmit

documents received by the Miami-Dade Office of the County Recorder, as alleged

in the indictment. The government has consistently argued that loan instruments

and checks were sent from Ascendant Title Services, Inc. (“Ascendant”) to the

Miami-Dade Office of the County Recorder by mail.

       The indictment reads, in relevant part, “Miami-Dade County clerk received

from Ascendant Title Services, Inc., via U.P.S. a warranty deed and mortgage.”

Indictment at 14 (Doc. 7). The government, during trial, in its brief, and in oral

argument, relied upon Government Exhibit 6 (“GX6”), and specifically

Government Exhibit 6A (“GX6A”), to support the mailing element of the charged

conduct. GX6, according to the government’s exhibit list filed with the district

court, is the Countrywide Bank Loan File for the property, and includes the

following three documents: (1) “Miami-Dade Clerk of Court’s certification of

origin of fax confirming mailing with print screens of clerk’s computer system and


1
      Hosein admitted that he did not pay the closing costs as stated in the property’s loan
documents, did not attend the closing, did not receive a key to the house, and did not make
mortgage payments on the home.




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recorded documents (composite)” (GX6A); (2) “HUD-1 Buyer Settlement

Statement” (“GX6B”); and (3) “Uniform Residential Loan Application”

(“GX6C”). Tr. Ex. List at 2 (Doc. 318).

      During proceedings relating to Appellant’s motions for judgment of

acquittal, the government argued:

      Count 6, Your Honor, the entire file first of all for that home
      transaction, that real estate transaction, is in evidence. Part of what’s
      in evidence, and I believe it has been attached to an exhibit that was
      talked about in court is a proof of mailing, 6A.
      ...
      [T]here has been direct evidence and proof about a mailing. . . . We
      didn’t bring in a witness to say – it’s true, we didn’t bring in someone
      to say solely the mail was used on this count, this is how, here’s the
      letter, but that exhibit is in evidence, it’s already been admitted, and
      we’re going to refer to it in our closing argument and point the jury to
      it.

Supp. Tr. Transcript at 5-6 (Doc. 377). In its appellate brief, the government

argued, “The documents further reflected that they had been ‘received by U.S.

mail’ by the Miami-Dade County Clerk of the Circuit and County Courts.” In oral

argument, the government reiterated its position, stating:

      What was mailed was . . . some form of deed to the county appraiser’s
      office. That deed had . . . the HUD-1 and the Uniform Residential
      Loan Application attached to it, so it was clear from, I think it was a
      fax or a letter to the County Court saying this is the documentation in
      connection with this property and it says on it “received by mail.”
      And of course, like I said, Hosein authenticated those documents. He
      said, “These are the documents that I originated in connection with
      this transaction.”

See Oral Argument at 17:17- 17:57.

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      Upon a careful review of the documents sent from Ascendant, and the record

generally, we cannot conclude that the documents were mailed to the Clerk of

Court, rather than some other transmission means. Neither the documents sent by

Ascendant, the remaining exhibits, nor the trial testimony provide evidence that the

Miami-Dade Clerk of Court received the warranty deed and mortgage for the

4th Street Property “via U.S. mail.” There is no record evidence that documents

were “received” by the Clerk of Court by mail and there is no evidence from which

a mailing can be inferred.

      What GX6 does include is a Uniform Residential Loan Application for the

4th Street Property indicating that the application, signed by Hosein, a purchaser

recruited by Appellant, was received by mail on July 17, 2007 by Kamla

Seecharan. Ms. Seecharan, a co-conspirator who pleaded guilty in this case, was

co-owner, together with Appellant, of Century Star Mortgage Group, Inc.

Seecharan is represented as conducting the Hosein loan application interview.

Hosein’s testimony appears to corroborate this fact. The following exchange

occurred during trial:

      A:     And I was presented with closing document for a second
             property.
      Q:     Do you recall who gave those to you?
      A:     Kamla.
      Q:     And how was that delivered to you?
      A:     I believe by DHL package.

Tr. Transcript at 75 (Doc. 360). These facts provide substantial evidence from

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which a reasonable jury could conclude that Appellant caused the mails to be used,

and that the mailing of the application and loan document was a step in furtherance

of the fraudulent scheme, in this case the transaction involving the 4th Street

Property. See Pereira v. United States, 347 U.S. 1, 8-9 (1954) (“Where one does

an act with knowledge that the use of the mails will follow in the ordinary course

of business, or where such use can reasonably be foreseen, even though not

actually intended, then he ‘causes' the mails to be used.”); see also United States v.

Ross, 131 F.3d 970, 985 (11th Cir. 1997). The fact that “DHL” was the means

used to mail the documents, as opposed to the U.S. mail, is irrelevant. United

States v. Silvestri, 409 F.3d 1311, n.14 (11th Cir. 2005) (“In 1994, Congress

expanded the provisions of § 1341to include any ‘matter whatever to be sent or

delivered by any private or commercial interstate carrier.’ Deliveries by DHL are

covered under the expanded definition.”) (citation omitted).

      We further find that any variance between the alleged proof of mailing in the

indictment and the evidence presented at trial is not grounds for reversal. “The

standard of review for whether there is a material variance between the allegations

in the indictment and the facts established at trial is twofold: First, whether a

material variance did occur, and second, whether the defendant suffered substantial

prejudice as a result.” United States v. Lander, 668 F.3d 1289, 1295 (11th Cir.

2012); United States v. Dennis, 237 F.3d 1295, 1300 (11th Cir. 2001).


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“A ‘variance’ occurs when the evidence at trial establishes facts materially

different from those alleged in the indictment.” United States v. Caporale, 806

F.2d 1487, 1499 (11th Cir. 1986). Substantial prejudice is present if “the proof at

trial differed so greatly from the charges that [the defendant] was unfairly surprised

and was unable to prepare an adequate defense.” United States v. Richardson, 532

F.3d 1279, 1286-87 (11th Cir. 2008).

      We conclude that it is not a material variance that Appellant’s co-conspirator

Kamla Seecharan, and not the Miami-Dade Clerk of Court, was the person who

received by mail documents by which the fraudulent loan was processed. See, e.g.,

United States v. Roberts, 308 F.3d 1147, 1156 (11th Cir. 2002) (holding there was

no material variance where the date of the offense cited in the indictment was a

year after the crime was committed, and the proof at trial showed that the offense

was committed on the earlier date, because the defendant had notice of the charges

and there was no possibility that he would be prosecuted again for the same

offense); Thompson v. Nagle, 118 F.3d 1442, 1453 (11th Cir. 1997) (holding there

was no material variance where evidence suggested cause of death differed from

indicted charge). Likewise, there is not a material variance that the testimony at

trial established that DHL, rather than U.P.S., was used. Id. Here, Appellant was

clearly on notice that he was charged with fraud in connection with the purchase of

and loan for the 4th Street Property, and that the mails were used to process this


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fraudulent transaction. The mailing that occurred in this transaction involved the

transmission of documents related to the loan, and evidence of the mailing of the

document was sent to and received by the Miami-Dade Clerk of Court. The

variance, even if there was one, was not material.

      Even if the difference in proof of mailing constituted a material variance, we

find that it did not prejudice Appellant. See Caporale, 806 F.2d at 1500 (no

prejudice where the variance “did not alter the crime charged, the requisite

elements of proof or the appropriate defenses in a significant manner”); see also

United States v. White, 349 F. App’x 381, 382 (11th Cir. 2009) (finding material

variance did not prejudice the defendant where the indictment incorrectly stated

one of the seventeen characters of a VIN number); United States v. Teague, 12 F.

App’x 759, 766 (10th Cir. 2001) (“Therefore, we hold that despite the technically

imperfect address given in the indictment to indicate where the crimes occurred,

the indictment plainly provided [the defendant] with sufficient detail and adequate

notice of the pending charges and evidence against him.”); cf. Lander, 668 F.3d at

1295-96 (finding a material variance where “the Government trie[d] to rely on a

scheme to defraud entirely different from the one alleged in the indictment to

support” the defendant’s conviction resulting in prejudice to the defendant because




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“the indictment failed to put [the defendant] on notice of the crime for which he

was convicted”).2

       The indictment was sufficient to put Appellant on notice of the crime for

which he was charged and convicted. It identified the substantive crime, the

approximate date on which the crime allegedly occurred, the facts underlying the

fraudulent scheme, and the property’s address. That the mailing was proved by a

means other than what was articulated in the indictment, which was nonetheless

included in the documents received by the Miami-Dade Clerk of Court, did not

prevent Appellant from preparing his defense. The government’s exhibits were

provided to Appellant, and GX6C clearly shows that a mailing—although different

from the one described in the indictment—occurred.

       We conclude that there was sufficient evidence to support, and a reasonable

jury could conclude, that Appellant was guilty beyond a reasonable doubt of mail

fraud, including that Appellant caused the mails to be used to further the fraudulent

purchase of this property.

       2.      The Conspiracy

       To sustain a conspiracy conviction under 18 U.S.C. § 1349, the government

must prove the following elements: “(1) agreement between two or more persons

2
       We recognize that Federal Appendix decisions are unpublished, and thus not binding on
the panel. We note, however, that they are helpful in explaining the legal principles that apply.




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to achieve an unlawful objective; (2) knowing and voluntary participation in that

agreement by the defendant; and (3) an overt act in furtherance of the agreement.”

United States v. Broughton, 689 F.3d 1260, 1277 (11th Cir. 2012); see also United

States v. Smith, 934 F.2d 270, 275 (11th Cir. 1991). Although an agreement may

be shown by direct evidence, “[t]he very nature of conspiracy frequently requires

that [it] be proved by inferences from the conduct of the alleged participants or

from circumstantial evidence of a scheme.” United States v. Toll, 804 F.3d 1344,

1355 (11th Cir. 2015).

      The record is fraught with evidence, both direct and circumstantial, that

would permit a reasonable jury to conclude that Appellant participated in a

conspiracy to commit mail and wire fraud. Appellant recruited his co-conspirators

to incorporate real estate companies that he controlled, but on which his identity

was not disclosed. He directed his co-conspirators how to use the real estate

companies to further his scheme. He recruited straw buyers by providing funds to

make down payments on the purchases, promising to pay the payment obligations

under the mortgage loans, and promising a share of the profits generated upon sale

of the properties. Testimony from Hosein and other witnesses established that

Appellant orchestrated, directed, and managed the scheme. Hamewattie

Balkissoon and Kamla Seecharan, Appellant’s co-conspirators, testified at trial that

the corporations that processed the fraudulent mortgage loan applications and the


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bank accounts in which the loan proceeds were deposited were controlled by

Appellant. Appellant managed and controlled the companies, found the buyers,

and instructed his co-conspirators how to process the loan applications and pay the

mortgages. Seecharan, for example, stated:

      Q:     Did [Appellant] have any directions for you as to where and
             when to use his name?
      A:     Everybody knew it was Ravi’s company. I mean, there was – it
             was never hidden. He didn’t hide the fact – Ravi tells
             everybody everything. So usually everybody that knows Ravi
             knows that he owns the real estate and mortgage, I’m the
             broker.

Tr. Transcript at 188 (Doc. 359). Seecharan testified about Appellant’s extensive

involvement in the mortgage application process, including the review and revision

of applications. She testified:

      Q:     So how regularly did you keep him informed of the details of
             these transactions?
      A:     Every day we talked. Whatever is going on on a daily basis in
             the company, he’s fully aware.
      Q:     Did you show him documents?
      A:     Yes, he have seen documents.
      Q:     What kind of documents?
      A:     He has seen the HUDS. . . .
             ...
      Q:     Did he expect you to share every detail with him?
      A:     Yes. If you don’t, he gets angry like you’re hiding something
             from him.

Tr. Transcript at 190 (Doc. 359).

      We conclude that the evidence was sufficient to support Appellant’s

conspiracy conviction, and the underlying substantive wire and mail fraud

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convictions. The record includes testimony, loan applications, and other

documents that would permit a reasonable jury to conclude, beyond a reasonable

doubt, that Appellant committed these offenses.3

                                                B.

       Appellant next challenges two of the district court’s evidentiary rulings.

First, Appellant argues the district court wrongly limited defense counsel’s

cross-examination of government witness Jose Cadena. Second, Appellant

contends the district court improperly permitted the government’s undercover

witness to testify without disclosing his real name.

       1.      Testimony of Jose Cadena

       At trial, the government offered Jose Cadena, an underwriter for Washington

Mutual Bank, to testify about the review of Hosein’s mortgage loan applications

and “what would be material to a Washington Mutual underwriter.” Tr. Transcript

at 109 (Doc. 360). Appellant argues that the district court improperly restricted his

cross-examination of Cadena. The following exchange between defense counsel

and the district court took place:

       Defense counsel: Judge, if you’re not going to let me cross-examine
                        on materiality, then I am finished.



3
         We reach this conclusion having found, as discussed below, that the district court did not
err in the evidentiary rulings and instructions to the jury challenged by Appellant.



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      Court:              No, I will not let you cross-examine on the alleged
                          failure of the bank to do what you think they
                          should have done. That, I think the Eleventh
                          Circuit has spoken on. So govern yourself
                          accordingly.

Tr. Transcript at 143 (Doc. 360). Defense counsel repeatedly attempted to ask

Cadena questions suggesting the bank was negligent in not investigating the

income claimed by mortgage applicants. The district court sustained the

government’s objection to the questions. The district court noted, during

Appellant’s cross-examination of Cadena, that it would instruct the jury that “any

negligence on the part of the bank is not a defense to this case.” See, e.g., United

States v. Svete, 556 F.3d 1157, 1165 (11th Cir. 2009) (“A perpetrator of fraud is no

less guilty of fraud because his victim is also guilty of negligence.”). The district

court was correct that negligence on the part of the bank has no bearing on whether

a misrepresentation is material. See id. Therefore, the district court did not err in

restricting cross-examination of Cadena on alleged shortcomings of Washington

Mutual’s application review process.

      A careful review of the trial record also shows that defense counsel in fact

extensively cross-examined Cadena. The transcript of defense counsel’s cross-

examination continues for approximately ten pages, and it supports that defense

counsel asked Cadena about matters such as verification of facts disclosed in the

loan applications, how the HUD-1 is prepared, why Cadena considered certain


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items material, and whether underwriters rely on brokers for the submission of

accurate information.

      We conclude that the district court did not err in restricting defense

counsel’s cross-examination, and it properly limited defense counsel’s cross-

examination when defense counsel attempted to imply that the negligence of the

financial institutions in some way negated her client’s intent or culpability.

      2.     Testimony of Government’s Undercover Witness

      Appellant next contends that the district court improperly permitted the

government’s undercover witness to testify without disclosing his real name. The

following exchange occurred at the trial immediately before the undercover

witness testified:

      Defense counsel: Judge, I just think on the record on – may not be in
                       the presence of the jury, but these witnesses need to
                       be identified by their true identities and names for
                       the record. I think that we’ve agreed, because the
                       government has security concerns since they are
                       undercover agents, that they can use their
                       undercover names in front of the jury. But I still
                       think we need to put on the record who they are.
                       ...
                       My understanding was they were going to put on
                       the record, outside the jury, and that’s why I
                       suggested sidebar, the true name of their witness
                       and that we would agree he could use his
                       undercover name in front of the jury. But you
                       need to identify who this witness is so that in the
                       future, if something happens, and let’s say this
                       man gets arrested for lying or something comes out


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                              that, you know, he fabricated all these things, I
                              don’t know, it’s happened.

         Court:               You have a continuing responsibility to the court,
                              as officers of the court, to let me know if something
                              like that were to happen.

         Government:          Correct, Your Honor. Under Giglio and just generally.

Tr. Transcript at 162-63 (Doc. 360).

         The record shows that defense counsel agreed to permit the use of the

witness’s alias during trial. The record also shows that defense counsel objected to

the government’s withholding of the witness’s true identity because of some future

need for the identity of the witness to be known. Defense counsel did not argue or

assert an objection based on some claimed prejudice as a result of withholding the

witness’s identity. 4 The record shows further that defense counsel conducted a

thorough cross-examination of the undercover witness. Appellant waived his

objection to the witness’s use of an alias at the trial. Appellant agreed to the use of

an alias for security reasons, and he cannot now claim this agreed-upon use was

error.

         On appeal, Appellant contends that the district court erred by allowing the

witness to testify under an alias before the jury. The argument is waived because

4
       Appellant’s counsel made a number of objections during the witness’s direct
examination, such as relevancy and that a question called for speculation. The district ruled on
each of these. She did not object based on the witness’s use of an alias or on the grounds that
allowing the witness to use an alias impacted her cross-examination.



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Appellant’s agreement to the use of the alias also constituted an invitation to the

district court to allow the use of the alias. “It is a cardinal rule of appellate review

that a party may not challenge as error a ruling or other trial proceeding invited by

that party.” United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (internal

quotations omitted). “The doctrine of invited error is implicated when a party

induces or invites the district court into making an error.” United States v.

Stone, 139 F.3d 822, 838 (11th Cir. 1998). “Where invited error exists, it

precludes a court from invoking the plain error rule and reversing.” Ford ex rel.

Estate of Ford v. Garcia, 289 F.3d 1283, 1294 (11th Cir. 2002) (internal quotations

omitted).

      Although defense counsel objected to the district court’s refusal to have the

undercover agent state his true name at sidebar, Appellant has not shown that he

was prejudiced by the denial of this specific request. United States v. Pepe, 747

F.2d 632, 656 & n.33 (11th Cir. 1984) (requiring showing of “specific prejudice

caused by [] nondisclosure”); see also Alford v. United States, 282 U.S. 687, 692

(1931) (“Prejudice ensues from a denial of the opportunity to place the witness in

his proper setting and put the weight of his testimony and his credibility to a test,

without which the jury cannot fairly appraise them.”). Appellant’s only stated

concern was that something may happen “in the future” affecting the agent’s

credibility. But these hypothetical future events would not have been presented to


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the jury and Appellant made no argument that he was unable to effectively “place a

witness in the proper setting” before the jury. United States v. Alston, 460 F.2d

48, 52 (5th Cir. 1972); see also United States v. Gutierrez de Lopez, 761 F.3d

1123, 1148-49 (10th Cir. 2014) (harmless error where “questioning allowed [the

defendant] an opportunity to undermine [the witness’s] credibility despite her

inability to ask about their true identities”). To the contrary, the record reflects a

thorough cross-examination.

      Appellant agreed to the use of an alias and in doing so waived any objection

to it. To the extent it was error to allow the alias to be used before the jury, the

claimed error was invited by Appellant. We conclude that Appellant has not

shown he suffered any prejudice by the refusal to disclose the agent’s undercover

alias name to the defense.

                                             C.

      Appellant argues that the district court erred in giving a Pinkerton 5 and a

deliberate ignorance instruction in the district court’s charge.

      We review jury instructions “de novo to determine whether the instructions

misstated the law or misled the jury to the prejudice of the objecting party.”

United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013); see also United

States v. Clay, 832 F.3d 1259, 1310 (11th Cir. 2016). We will not reverse a

5
      Pinkerton v. United States, 328 U.S. 640 (1946).



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conviction based on a jury instruction challenge “unless we are ‘left with a

substantial and ineradicable doubt as to whether the jury was properly guided in its

deliberations.’” Gibson, 708 F.3d at 1275. “When the jury instructions, taken

together, accurately express the law applicable to the case without confusing or

prejudicing the jury, there is no reason for reversal even though isolated clauses

may, in fact, be confusing, technically imperfect, or otherwise subject to criticism.”

Id. The Supreme Court has observed that “in reviewing jury instructions, our task

is also to view the charge itself as part of the whole trial,” noting that “[o]ften

isolated statements taken from the charge, seemingly prejudicial on their face, are

not so when considered in the context of the entire record of the trial.” United

States v. Park, 421 U.S. 658, 674-75 (1975) (internal quotations omitted).

      1.     The Pinkerton Instruction

      Appellant contends that the district court erred when it instructed that, if the

jury found Appellant guilty of conspiracy, the jury could find him guilty of the

substantive offenses of mail fraud and wire fraud based on the acts of his co-

conspirators. The district court, upon the government’s request, and after

overruling Appellant’s objections at a charge conference, gave the following

instruction to the jury:

      During a conspiracy, if a conspirator commits a crime to advance the
      conspiracy toward its goals, then in some cases a co-conspirator may
      be guilty of the crime even through the co-conspirator did not
      participate directly in the crime. So, regarding Counts [Three] and

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      [Six], if you have first found the defendant guilty of Count [One], you
      may also find the defendant guilty of any of the crimes charged in
      Counts [Three] and [Six] even though the defendant did not
      personally participate in the crime. To do so, you must find beyond a
      reasonable doubt:

      One, during the conspiracy, a conspirator committed the additional
      crime charged to further the conspiracy’s purpose.

      Two, the defendant was a knowing and willful member of the
      conspiracy when that crime was committed.

      And three, it was reasonably foreseeable that a co-conspirator would
      commit the crime as a consequence of the conspiracy.

Tr. Transcript at 12-13 (Doc. 362). Appellant does not argue that this instruction

was defective. Instead, he contends that the district court erred because (1) “[t]he

evidence did not support giving a Pinkerton instruction”; and (2) the instruction

“undermined the whole defense theory of the case—that [Appellant] never had

intent to defraud.”

      As we conclude above, the evidence was more than sufficient to support

Appellant’s conspiracy conviction. We find that the instructions issued by the

district court in this case correctly and adequately stated the relevant law that

applied, including that Appellant could be convicted for reasonably foreseeable

co-conspirator criminal conduct engaged in to advance the conspiracy towards the

“goals” of the conspiracy. This specifically includes the criminal conduct in which

straw buyers engaged. The record here supports that it was appropriate to give the

Pinkerton charge.

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       2.      The Deliberate Ignorance Instruction

       Appellant next argues that the district court erred in giving a deliberate

ignorance instruction. 6 The district court gave the following instruction to the jury:

       If a defendant’s knowledge of a fact is an essential part of the crime,
       it’s enough that the defendant was aware of a high probability that the
       fact existed, unless the defendant actually believed that the fact did
       not exist.

Tr. Transcript at 14 (Doc. 362). Appellant does not object on the ground that the

charge is incorrect. He only objects on the ground that the instruction prejudiced

him because it “basically negate[d] intent,” which in turn allegedly lowered the

government’s burden to prove his intent beyond a reasonable doubt.

       The trial court instructed the jury on approximately six occasions that the

government was required to prove each element of each charge against the

defendant and that proof beyond a reasonable doubt was required. The court

specifically instructed the jury that the government was required to prove intent to

defraud beyond a reasonable doubt. The record shows the jury was plainly

instructed that it was the government’s burden to prove intent beyond a reasonable

doubt. The record also shows there was sufficient evidence to support giving the

instruction.


6
       This instruction is sometimes referred to as a “deliberate indifference” instruction.
“Ignorance” is the more appropriate term, and it is used in this Opinion.




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       We have stated that a “deliberate ignorance instruction is appropriate only

when there is evidence in the record ‘showing the defendant purposely contrived to

avoid learning the truth.’” United States v. Stone, 9 F.3d 934, 937 (11th Cir.

1993), cert. denied, 513 U.S. 833 (1994) (citing United States v. Barbee, 968 F.2d

1026, 1033 (10th Cir. 1992)). We have also cautioned “against instructing juries

on deliberate ignorance when the evidence only points to either actual knowledge

or no knowledge on the part of the defendant.” Id. These general principles are

difficult to apply in a fraud as complex as the one at issue here, where the defense

was that Appellant’s conduct was simply a commercial venture gone awry because

of market conditions. The record supports the trial court’s decision to give the

instruction.

       Appellant does not challenge the accuracy of the instruction, but objects that

it relieved the government of proving Appellant’s intent to commit fraud and to

enter into the conspiracy. 7 The instruction, as given, stated: “If a defendant’s

knowledge of a fact is an essential part of the crime, it’s enough that the defendant

was aware of a high probability that the fact existed.” Tr. Transcript at 14 (Doc.

362). There was, in this case, an adequate factual basis for the district court to give

the deliberate ignorance instruction from which the inference could be drawn that

7
        The instruction given was based on Special Instruction No. 8 from the Eleventh Circuit
Pattern Jury Instructions in Criminal Cases.




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Appellant engaged in purposeful conduct to avoid knowing essential facts of the

crime. The defense in this case was that Appellant engaged in ordinary

commercial transactions and did not intend to defraud lenders. He argued,

including in this appeal, that the facts showed he engaged in regular, ordinary real

estate transactions. The government argued that Appellant was fully aware of the

fraud in which he engaged, but also sought to disguise his involvement in certain

key transactions by instructing others not to disclose his association with the

scheme.

      The evidence supports that Appellant attempted to make all or part of the

scheme appear to be legitimate. Appellant sought to insulate himself from

knowing the particulars of specific scheme elements, knowing there was a high

probability that the conduct of his co-conspirators was fraudulent, and that he

could be held criminally accountable for it.

      For example, Appellant recruited and facilitated straw borrowers to apply for

loans. Appellant was not listed on loan applications or documents and the

evidence shows that Appellant dispatched straw borrowers to obtain purchase

money mortgages. Additionally, he directed his co-conspirators to leave his name

off of documents incorporating his real estate companies. This evidence would

allow a jury to infer that Appellant, who was knowledgeable of the lending

process, purposely avoided knowing the details of the straw purchases, because not


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knowing allowed him to maintain his defense that there was no fraud in the

borrowing activities. A jury in this case was entitled to decide if Appellant chose

not to know of the details of the fraudulent scheme. These facts, coupled with

Appellant’s defense, were an appropriate basis to allow the jury to consider

whether Appellant chose to be deliberately ignorant of essential elements of the

crime—here, the conduct of straw borrowers.

       What we have said before is true in this case—a deliberate ignorance

instruction is “properly given” where “the evidence supports both actual

knowledge and deliberate ignorance.” United States v. Arias, 984 F.2d 1139, 1143

(11th Cir. 1993) (internal quotations omitted). Viewing the charge and the record

as a whole, we find no reversible error in the court’s instructions to the jury. 8

                                               D.

       Appellant argues that the district court improperly calculated loss amount

and gross receipts in determining the Sentencing Guidelines, and, as a result,

imposed an inappropriate sentence.

       “[A] district court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38,
8
        We have noted before that even where there was no basis for a deliberate ignorance
instruction, it was harmless error beyond reasonable doubt to give it where the evidence of actual
knowledge independently supported a conviction beyond a reasonable doubt. Griffin v. United
States, 502 U.S. 46, 58 (1991); Stone, 9 F.3d at 937. Here, there was more than sufficient
evidence of actual knowledge.




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49 (2007); see also United States v. Campbell, 765 F.3d 1291, 1298 (11th Cir.

2014). If “a defendant challenges one of the factual bases of his sentence . . . the

Government has the burden of establishing the disputed fact by a preponderance of

the evidence.” Rodriguez, 732 F.3d at 1305. The district court must then, using

the Guidelines range as the benchmark, weigh all of the factors to determine

whether they support the sentence requested by a party. Gall, 552 U.S. at 49-50.

      1.     Loss Amount

      For crimes involving fraud or deceit, such as this one, the Sentencing

Guidelines increase the offense level based on the amount of the loss.

U.S.S.G. § 2B1.1(b) (2015); see also United States v. Wright, 862 F.3d 1265, 1274

(11th Cir. 2017). The “loss is the greater of actual loss or intended loss.”

U.S.S.G. § 2B1.1 cmt. n.3(A). On July 14, 2016, the district court sentenced

Appellant to 262 months imprisonment, followed by 60 days of supervised release,

and ordered him to pay more than $9 million in restitution. The district court

determined, without specifically adopting a particular loss amount, that the

government established a loss amount of more than $25 million, which requires

22 levels to be added to the base level offense. The district court considered,

however, the impact of sentencing Appellant pursuant to the next lowest category,

which involves a loss amount of more than $9.5 million but not more than

$25 million. This loss amount category requires adding 20 levels to the base level


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offense. The high end of the applicable advisory guideline for a loss amount of

less than $25 million and the low end of the applicable advisory guideline for a

loss amount of more than $25 million resulted in the same recommended

sentence—262 months. As a result, the district court stated the following:

      If I went below the $25 million, it would be my intention to sentence
      the defendant at the high end of the guidelines; and if I go above that,
      it would be my intention to sentence him at the low end of the
      guidelines. So I don’t think it has any practical difference in this
      matter. I don’t think that you have proven sufficient to get it below
      the $25 million. But even if you did, it would still be at the very high
      end below $25 million. And so I’m ruling against you on your
      objection, not on everything, but on the fact that it doesn’t really make
      any difference because it’s still over $25 million, and if it were to slip
      below $25 million, it would not make any difference to me in my
      evaluation of the sentencing to Mr. Roopnarine.

Tr. Transcript at 47 (Doc. 354).

      The district court thus concluded that it would impose the same sentence

regardless of the specific loss amount, which was disputed and discussed at length

during the sentencing proceedings on July 14, 2016. “A Sentencing Guidelines

miscalculation is harmless if the district court would have imposed the same

sentence without the error.” United States v. Barner, 572 F.3d 1239, 1248 (11th

Cir. 2009); see also United States v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2006)

(“Notwithstanding the district court’s error, we are not required to vacate the

sentence and remand the case if the court would have likely sentenced [the

defendant] in the same way without the error.”). We conclude, without



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determining the exact loss amount at issue here, that the district court did not

clearly err in sentencing Appellant under the guideline for a loss amount of more

than $25 million and less than $65 million because he would have nevertheless

sentenced Appellant to 262 months.

      2.     Gross Receipts

      The Sentencing Guidelines also require the district court to enhance a

defendant’s base offense by two levels if “the defendant derived more than

$1,000,000 in gross receipts from one or more financial institutions as a result of

the offense.” U.S.S.G. § 2B1.1(b)(16)(A). Gross receipts include “all property,

real or personal, tangible or intangible, which is obtained directly or indirectly” as

a result of the offense. U.S.S.G. § 2B1.1, cmt. n.12(B).

      Appellant argues on appeal that the evidence did not support the district

court’s finding that he personally received more than $1 million in gross receipts.

The following exchange between the government and the district court occurred at

the sentencing proceedings on July 14, 2016:

      Government:         First and foremost, we have Government Trial
                          Exhibit 1, which is the summary chart presented
                          by the defendant to the undercover FBI agents
                          laying out in detail the operation and scope of his
                          scheme in which the central column was entitled
                          Robby’s Take and aggregated over $6 and a half
                          million at the bottom of the column. In addition,
                          there was preponderance of the evidence in the
                          form of testimony by the witnesses at trial
                          describing how all proceeds were considered to

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                          belong to him and over a million dollars were at
                          various times in the aggregate transferred to him
                          and his wife.

      Court:              My recollection of the testimony is that your client
                          claimed far more than a million dollars. Now, he
                          might have been lying because, you know what,
                          fraudsters do lie sometimes. But I think in this
                          case he was lying to his detriment. He clearly
                          indicated that he was receiving far more than a
                          million dollars.

Tr. Transcript at 46 (Doc. 354). The district court heard testimony on the issue,

considered it, and concluded that it was reasonable to estimate from the testimony

and evidence presented during the trial that Appellant took home more than

$1 million in gross receipts. We conclude that the district court did not clearly err

in reaching its determination.

                                 IV. CONCLUSION

      For all of the foregoing reasons, we affirm Appellant’s conviction and

sentence.




                                          33
