             Case: 18-11108    Date Filed: 04/03/2019   Page: 1 of 6


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 18-11108
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 1:16-cv-25139-RNS,
                            1:14-cr-20344-RNS-2


MADELINE RODGERS,

                                                             Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

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

                                 (April 3, 2019)

Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges.

PER CURIAM:

      Madeline Rodgers appeals the denial of her motion to vacate her convictions

for conspiring to commit bank and wire fraud, 18 U.S.C. § 1349, and for two
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counts of wire fraud. id. § 1343. 28 U.S.C. § 2255. We issued a certificate of

appealability to address whether Rodgers’s trial counsel was ineffective for

alleging during opening statements that serving as and using a straw buyer to

purchase residential properties was not illegal. Because Rodgers’s counsel did not

act deficiently by making the statement and Rodgers failed to establish that

counsel’s action prejudiced her defense, we affirm.

      A grand jury indicted Rodgers and a coconspirator for defrauding financial

institutions by submitting false and fraudulent loan applications electronically. The

indictment alleged that Rodgers and her cohort “recruited straw buyers to act as . . .

mortgage applicants.” The indictment further alleged that Rodgers and her

coconspirator induced lending institutions to fund monies using “loan applications

and related documents . . . [that] contained numerous false statements and

representations relating to the straw buyers’ employment, income, deposits, assets,

liabilities, intent to make the property a primary residence, and other information”

and that they diverted loan proceeds for personal use and to pay the straw buyers.

      Rodgers entered a plea of not guilty to the charges and proceeded to trial.

During opening statements, Rodgers’s counsel stated that the use of a straw buyer

in a property transaction was not illegal. Counsel stated, “And one of the things I

am absolutely certain you are going to notice is that nobody is charged with being

a straw buyer and nobody is charged with using a straw buyer and there is reason


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for that. It is not illegal to be a straw buyer, nor is it illegal to use a straw buyer to

purchase property.” The government presented testimony from three straw buyers

and a federal agent and introduced numerous documents that the jury found

sufficient to establish Rodgers’s guilt for conspiracy and wire fraud.

       Rodgers moved to vacate her convictions on the ground that trial counsel

was ineffective for “incorrectly t[elling] the jury that ‘being a straw buyer or using

a straw buyer’ was not illegal.” See 28 U.S.C. § 2255. The government responded

that counsel’s statement was a correct statement of law and he acted reasonably in

contesting the charges against Rodgers, and in the alternative, that counsel’s

statement did not prejudice Rodgers. The district court denied Rodgers’s motion.

       We review de novo the denial of a motion to vacate based on a claim of

ineffective assistance of counsel. Chandler v. United States, 218 F.3d 1305, 1312

(11th Cir. 2000) (en banc). A “high bar” exists for a postconviction movant to

prevail on an argument that trial counsel acted ineffectively. Padilla v. Kentucky,

559 U.S. 356, 371 (2010). The movant must prove both that counsel acted

deficiently and that those errors “were significant enough to have affected the

outcome” of the trial. United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir.

2000). Because counsel is presumed to have provided representation “within the

‘wide range’ of reasonable professional assistance,” for the movant to succeed on

an argument of deficient performance, he must establish that counsel’s errors were


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“so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687,

689 (1984); see Chandler, 218 F.3d at 1314. Even if counsel acted deficiently, the

movant must also prove that his counsel’s errors were “so serious as to deprive

[him] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

      The district court did not err by denying Rodgers’s claim that counsel made

a professional error during his opening statement. Rodgers’s counsel made an

accurate statement about straw buyers as part of his strategy to persuade jurors that

Rodgers’s conduct did not equate to defrauding a financial institution, 18 U.S.C.

§ 1344. Section 1344 punishes the act of making false representations to a bank

with the intent to obtain money or property. Id. Counsel acknowledged that

Rodgers recruited and paid straw buyers, but “following the plain terms of the

statute,” counsel argued that the straw buyers committed the fraud by preparing the

false documents that deceived the mortgage lenders. See Smith v. Singletary, 170

F.3d 1051, 1054 (11th Cir. 1999) (citing from Cianbro Corp. v. Jeffcoat & Martin,

804 F. Supp. 784, 790 (D.S.C. 1992), that “[a]n attorney cannot be held liable for

following the plain terms of a statute when there are not compelling circumstances

to suggest otherwise, even [if] a court later decides that interpretation is

erroneous.”). We cannot say “no competent counsel” would have advanced the

technically correct argument that Rodgers’s involvement with straw buyers,


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persons whose identities were used to purchase property yet never intend to occupy

or own the property, without more, was not a federal crime. See Chandler, 218

F.3d at 1315. The government detected defense counsel’s strategy and clarified

during its closing argument that the buyers’ representations about purchasing

property that “in reality they are buying . . . for somebody else” “is illegal because

“the bank wouldn’t have approved . . . if they knew that that individual was a straw

buyer.” And the prosecutor highlighted that Rodgers “was directly involved in

submitting this false information to all of the banks.”

      Even if we were to assume that counsel was deficient, Rodgers could not

establish a reasonable probability that his trial would have ended differently but for

counsel’s argument. Counsel made the argument during opening statements, after

which the government presented substantial evidence of Rodgers’s guilt. In

addressing Rodgers’s challenge to the sufficiency of the evidence on direct appeal,

we concluded that “the evidence proved that Rodgers conspired with other persons

. . . to defraud financial institutions by submitting false loan applications signed

by” straw buyers, United States v. Rodgers, 631 F. App’x 912, 913 (11th Cir.

2015), and that “[a]mple evidence prove[d] that Rodgers and her coconspirators

affected financial institutions by causing them to transfer loan proceeds using

interstate wire transmissions,” id. at 914. And the district court instructed the jury

before opening statements and after closing statements that the arguments of


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counsel were not evidence. The arguably “improper statements [by Rodgers’s

counsel] c[ould] be rectified by the district court’s instruction[s] to the jury that

only the evidence in the case be considered.” United States v. Lopez, 590 F.3d

1238, 1256 (11th Cir. 2009) (quoting United States v. Smith, 918 F.2d 1551, 1562

(11th Cir. 1990)). We presume the jury followed that instruction. Id. In the light of

the solitary nature of counsel’s argument, the substantial evidence of Rodgers’s

guilt, and the curative instructions given by the district court, there exists no basis

to conclude that she established there existed a substantial likelihood of a different

outcome had counsel not made his argument about straw buyers.

      We AFFIRM the denial of Rodgers’s motion to vacate.




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