                Case: 11-14548       Date Filed: 10/22/2013       Page: 1 of 14


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-14548
                               ________________________

                          D.C. Docket No. 0:10-cr-60194-JIC-8



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                             versus

JOSEPH DEROSA,

                                                                       Defendant-Appellant.

                               ________________________

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

                                     (October 22, 2013)

Before MARTIN, JORDAN and SUHRHEINRICH, ∗ Circuit Judges.




*
 Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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PER CURIAM:

       After a jury trial, Joseph Derosa was convicted of mail and wire fraud, 18

U.S.C. §§ 1341 and 1343, and making false statements within the jurisdiction of a

federal agency, id. § 1001, based on his alleged participation in a mortgage fraud

conspiracy. 1 At trial the government presented evidence that a group of

individuals, including Derosa, participated in a mortgage fraud conspiracy led by

Joseph Guaracino. Guaracino was a police officer with Derosa and some of the

other co-defendants before he resigned to work in real estate. The government

claimed that Derosa lent Guaracino his name and financial information to borrow

money and purchase five properties.


       At trial Derosa’s main defense was that he did not have sufficient knowledge

of the fraudulent aspects of the mortgage transactions to support his conviction.

The evidence showed that other people falsified the preliminary loan documents,

including by inflating Derosa’s salary and savings, omitting information about

other real estate transactions, and signing Derosa’s name without his permission or

knowledge. On the other hand, the government presented evidence that Derosa

personally attended the closings and signed the closing documents, which included

the false information the mortgage brokers submitted in the preliminary



1
  Derosa was also charged with conspiracy to commit these offenses, pursuant to 18 U.S.C. §
1349, but the jury found him not guilty on that count.
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documents. Derosa’s main defense was that he did not know, or notice, that what

he was signing was fraudulent.


      Derosa appeals his conviction arguing that there was insufficient evidence to

show his knowledge and intent to participate in the mortgage fraud, or to include

false information on documents submitted to the U.S. Department of Housing and

Urban Development (HUD). He also challenges the district court’s denial of his

motion to dismiss the indictment based on a government witness’s destruction of

evidence, two evidentiary rulings, and the propriety of statements made in the

government’s closing.


                I. MOTION TO DISMISS THE INDICTMENT

      Before the government filed the indictment, one of the government’s

cooperating witnesses, mortgage broker Rene Rodriguez, destroyed a large number

of original documents. Derosa joined another defendant’s motion for a spoliation

hearing and for dismissal of the indictment based on this destruction of evidence.

After a hearing, the district court denied the motion for dismissal, finding that the

government had not acted in bad faith, that most of the documents were for

transactions not covered by the indictment, and that an adverse inference

instruction would be a sufficient remedy.




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      A district court’s conclusion that no due process violation occurred as a

result of the destruction of evidence is a mixed question of law and fact. United

States v. Revolorio-Ramo, 468 F.3d 771, 774 (11th Cir. 2006). We review

findings of fact under the clearly erroneous standard and legal conclusions de

novo. Id. To show the government’s loss of evidence was a denial of due process,

“the defendant must show that the evidence was likely to significantly contribute to

his defense.” United States v. Brown, 9 F.3d 907, 910 (11th Cir. 1993) (citing

California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534 (1984)).


      Derosa cannot demonstrate the evidence destroyed here was likely to

significantly contribute to his defense. Although he claims the destroyed evidence

was central to challenging the knowledge and intent elements of the government’s

proof, the district court found the evidence related mostly to transactions that

occurred after the property sales included in the indictment. In addition, as Derosa

himself argues on appeal, the evidence at trial established Derosa provided

accurate employment information, W-2 statements, bank accounts and other

required information to the brokers who took it upon themselves to falsify

documents for loan approval. Therefore, further evidence that Derosa submitted

accurate original documents or that Rodriguez had falsified pre-qualifying

documents was not likely to contribute significantly to Derosa’s defense. The

district court also gave a curative instruction to the jury that “[y]ou may infer that

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any documents intentionally destroyed by Rene Rodriquez, Jr. and not preserved

for introduction at trial[] are relevant to this case and would have contained

information favorable to each of the Defendants on trial today.” Accordingly, we

affirm the district court’s denial of Derosa’s motion to dismiss the indictment.


                    II. SUFFICIENCY OF THE EVIDENCE

      We review de novo a challenge to the sufficiency of the evidence,

considering the evidence in the light most favorable to the government, and

drawing all reasonable inferences and credibility choices in the government’s

favor. United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir. 2011). “A jury’s

verdict cannot be overturned if any reasonable construction of the evidence would

have allowed the jury to find the defendant guilty beyond a reasonable doubt.”

United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991). “The evidence need

not be inconsistent with every reasonable hypothesis except guilt, and the jury is

free to choose between or among the reasonable conclusions to be drawn from the

evidence presented at trial.” United States v. Poole, 878 F.2d 1389, 1391 (11th

Cir. 1989). “When the government relies on circumstantial evidence, reasonable

inferences, not mere speculation, must support the conviction.” United States v.

Mendez, 528 F.3d 811, 814 (11th Cir. 2008).




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      Derosa claims the evidence was insufficient to establish the knowledge and

intent elements of the mail and wire fraud counts. These elements require proof

that Derosa (1) knowingly devised or participated in a scheme to defraud someone

or obtained money or property using false or fraudulent pretenses, representations,

or promises; and (2) intended to defraud someone. See United States v. Brown,

665 F.3d 1239, 1246 (11th Cir. 2011).


      Although Derosa points to evidence that is arguably contrary to a finding of

guilt, there is also a “reasonable construction of the evidence [that] would have

allowed the jury to find the defendant guilty beyond a reasonable doubt.” Herrera,

931 F.2d at 762. Neither is the evidence such that the jury had to speculate to

reach its conclusion. Mendez, 528 F.3d at 814.


      Derosa participated personally in five of the fraudulent loan transactions.

He was present at the closings and signed documents containing false job titles and

employment information, inflated income and bank account figures, and

misrepresentations about whether he intended to live in the properties as his

primary residence. The loan documents also omitted information about other

properties for which he was getting loans and buying at the same time.


      Although some of the closings might have been “point and sign” closings

with no explanation, one of the closing agents, Susan Greenburg-Lieberman,


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testified that she does not perform point and sign closings. She testified as to her

general practice of explaining the various documents to the borrower. A

reasonable jury could have concluded that Derosa was put on notice by the more

detailed closing with Greenberg-Lieberman, both for it and for the three later

transactions in which he participated, and therefore rejected his defense that he did

not know the closing documents contained fraudulent information.


      There was also sufficient evidence to allow a reasonable jury to conclude

that Derosa acted with an intent to defraud. Derosa never contributed any money

to the transactions, despite representations on the mortgage documents that funds

were coming from him, the borrower. Instead he received funds from Guaracino

directly or from an entity controlled by Guaracino. In another instance Derosa

wrote a check to the IRS in his name and then received a check in an equal amount

from Guaracino. There was also evidence suggesting he lied about the source of

the borrower’s funds for at least one transaction when he was asked about it by

Postal Inspector Bender. This would also permit a jury to infer that he knew it was

improper that the funds were not coming from him. Despite not contributing any

money himself, there is evidence that Derosa received money in exchange for his

participation in the transactions. Derosa also quit-claimed at least two of the

properties to Guaracino soon after the purchases, allowing for an inference that his



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participation was only necessary to receive the financing and that he did not intend

to own the properties as an investment.


      In the same way, Derosa disputes the knowledge element of the false

statement count, claiming there is no evidence that he knew the HUD-1 forms he

signed contained false information. Again, despite the contrary evidence

highlighted by Derosa, a reasonable construction of the evidence presented at trial

supports the jury’s verdict on this count.


      The plain language on the HUD-1 form says “cash from borrower” and

Derosa admittedly supplied no cash for any of the property transactions. Despite

this admission, the evidence showed that in one instance Derosa signed a HUD-1

form stating the borrower was supplying $110,363.12, while the money was

coming from a second mortgage and from Guaracino. Another HUD-1 form

shows two amounts coming from the borrower; although there was evidence

Derosa received a check from Guaracino’s company several days earlier sufficient

to pay these two amounts. A third HUD-1 form shows a payment of $10,000, but

bank records show no $10,000 payment from Derosa. Considering this evidence in

the light most favorable to the government and in the context of the transactions

discussed above, we cannot say the jury’s conclusion of guilt was unreasonable.




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      We therefore find there was sufficient evidence to support Derosa’s

convictions.


                         III. EVIDENTIARY RULINGS

      “We review the district court’s admission of evidence for abuse of

discretion.” United States v. Capers, 708 F.3d 1286, 1305 (11th Cir. 2013)

(internal quotation marks omitted). “Even where an abuse of discretion is shown,

non-constitutional evidentiary errors are not grounds for reversal absent a

reasonable likelihood that the defendant’s substantial rights were affected.” Id.

(internal quotation marks omitted). In order for an error to affect substantial

rights, the error must have affected the outcome of the district court proceedings.

United States v. Gamory, 635 F.3d 480, 494 n.15 (11th Cir. 2011).

                  A. EVIDENCE OF DEROSA’S SIGNATURE


      Under Fed. R. Evid. 901(b)(2), a non-expert can testify about handwriting

“based upon familiarity not acquired for purposes of the litigation.” See Hall v.

United Ins. Co. of Am., 367 F.3d 1255, 1259–61 (11th Cir. 2004) (laying out

standard to satisfy Fed. R. Evid. 701 and 901(b)(2)). Where there is a comparison

signature, a formal or lay expert is not needed, because the jury itself can compare

signatures and draw its own conclusions. See United States v. Bell, 833 F.2d 272,



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276 (11th Cir. 1987); United States v. Barker, 735 F.2d 1280, 1281 (11th Cir.

1984).


      Derosa argues that the government did not sufficiently establish witness

Matthew Gulla’s familiarity with Derosa’s signature to permit him to testify about

it. We do not have to address that argument, because a review of Gulla’s

testimony shows that the jury here was asked to make its own signature

comparison. Derosa’s driver’s license was an exhibit. Thus, during its

deliberations, the jury could itself compare that signature to the loan documents

and draw its own conclusions. This is in fact what the government asked the jury

to do in its closing arguments. On this record, we do not find the district court

abused its discretion.


      Regardless, Gulla’s testimony was not material to proving Derosa’s intent

and knowledge. Gulla was a mortgage broker, not a closing agent. There was

sufficient evidence aside from Gulla’s testimony that Derosa was at the closings

and signed the closing documents. In addition, the district court offered to instruct

the jury that the witnesses’s testimony regarding the signatures “does not preclude

the jury from making its own comparison based on the evidence,” but no

defendant, including Derosa, asked for the instruction to be read. Derosa also

acknowledges that he was able to cross-examine Gulla, who testified that he never

saw Derosa sign any documents, which the jury could also consider. Therefore,
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even if admitting Gulla’s testimony on the signatures was an abuse of discretion,

the error did not affect Derosa’s substantial rights.


            B. ADMISSION OF CO-CONSPIRATOR STATEMENTS


      A statement is not hearsay if it “was made by the party’s coconspirator

during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E). To

introduce coconspirator statements under Rule 801(d)(2)(E), “the government must

prove by a preponderance of the evidence that (1) a conspiracy existed, (2) the

conspiracy included the declarant and the defendant against whom the statement is

offered, and (3) the statement was made during the course of and in furtherance of

the conspiracy.” United States v. Underwood, 446 F.3d 1340, 1345-–1346 (11th

Cir. 2006). “The statement must be considered but does not by itself establish . . .

the existence of the conspiracy or participation in it . . . .” Fed. R. Evid. 801(d)(2).

“[T]he admission of testimony under the co-conspirator exception to the hearsay

rule is not rendered retroactively improper by subsequent acquittal of the alleged

co-conspirator.” United States v. Hernandez-Miranda, 78 F.3d 512, 513 (11th Cir.

1996) (internal quotation marks omitted).


      On appeal, Derosa complains about three statements made by Guaracino, the

alleged leader of the conspiracy, and repeated by various witnesses at trial

suggesting Derosa was a knowing and willing participant in the mortgage fraud.


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Derosa argues that these three statements should not have been admitted, because

the jury acquitted him on the conspiracy count and there was no showing that he

was part of the conspiracy. Because Derosa made no similar objection to these

statements at trial, we review for plain error and find none.


      The fact that the jury found Derosa not guilty on the conspiracy charge is

immaterial. Hernandez-Martinez, 78 F.3d at 513. There was also sufficient

evidence to support a finding, by a preponderance, that Derosa was a participant in

the conspiracy. The statements themselves can be considered, pursuant to Rule

801, as long as they are considered together with other evidence. Aside from these

statements, we have summarized the evidence of Derosa’s participation in the

mortgage fraud. In light of the evidence as a whole, the effect of three scattered

comments in a two-month trial is limited and we find it did not substantially affect

the outcome.


                    IV. PROSECUTORIAL MISCONDUCT

      We ordinarily review claims of prosecutorial misconduct de novo; however,

if not raised at trial, review is limited to plain error. United States v. Merrill, 513

F.3d 1293, 1306–07 (11th Cir. 2008). “For a claim of prosecutorial misconduct

relating to the closing argument to be successful, the argument must be improper

and prejudicial to a substantial right of the defendant.” Capers, 708 F.3d at 1308

(quoting United States v. Woods, 684 F.3d 1045, 1065 (11th Cir. 2012)). “A
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defendant’s substantial rights are prejudiced if there is a reasonable probability

that, but for the improper remarks, the outcome of the trial would have been

different.” Id. at 1308–09 (quotation marks omitted). Relief will only be granted

for “plain error that is so obvious that failure to correct it would jeopardize the

fairness and integrity of the trial.” United States v. Bailey, 123 F.3d 1381, 1400

(11th Cir. 1997) (footnote and citations omitted).


      Derosa argues that the government improperly reduced its burden of proof

and attempted to hold Derosa to a higher standard as a police officer. He claims

that the government argued improperly that Derosa’s profession and training to

detect suspicious behavior made it unlikely he would sign documents without

reviewing them or fail to notice false representations. He argues this error was

compounded by the fact the evidence against him was circumstantial and the

inferences the government asked the jury to draw based on his profession went to

the disputed element of the crimes, his knowledge and intent. To support his

claim, Derosa only points to two statements in the government’s closing arguments

and several testimonial questions spanning several pages of the entire two-month

trial transcript. Derosa did not object to the government’s statements in closing

argument and did not object to the line of questioning.


      Based on the record before us, we find that the district court did not err in

finding that these statements were not improper, because they were relevant to the
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credibility or believability of the police officer defendants’s defense that they did

not know about the fraud and did not notice the false statements in the closing

documents they signed.


      Even if these statements and testimony were improper, we conclude that

these few references during a lengthy trial did not prejudice Derosa’s substantial

rights or jeopardize the fairness and integrity of the trial. As described above,

there was sufficient evidence to support the jury’s verdict. Nor has Derosa shown

that the jury was likely to apply an improper burden of proof. The jury instructions

set out the standard for proof beyond a reasonable doubt and reminded the jury that

“anything the lawyers say is not evidence and isn’t binding on you.” The

government also mitigated its comments by stating in its rebuttal that “no one is

saying that these defendants had some super human power to detect fraud or to

know when someone is lying to them” and “[t]hey are not being held to a higher

standard, they are not being asked to be held to any higher or lower standard than

what any other person would be asked to be held to.”


                                V. CONCLUSION

      Based on our careful review of the record, we affirm Derosa’s convictions.

AFFIRMED.




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