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                                                                     [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 18-11775
                              ________________________

                        D.C. Docket No. 1:15-cr-20973-KMW-2



UNITED STATES OF AMERICA,

                                                                        Plaintiff - Appellee,

                                            versus

MICHAEL ROJAS,
BARBARA ROJAS,

                                                                  Defendants - Appellants.

                              ________________________

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

                                      (July 31, 2020)

Before MARTIN and NEWSOM, Circuit Judges, and WATKINS, * District Judge.


*
  Honorable W. Keith Watkins, United States District Judge for the Middle District of Alabama,
sitting by designation.
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PER CURIAM:

      This is the direct criminal appeal of Barbara and Michael Rojas, a mother

and son who were convicted of conspiracy to commit bank fraud and wire fraud,

wire fraud, and bank fraud as a result of their participation in a complex mortgage-

fraud scheme. Michael was sentenced to 136 months’ imprisonment, and Barbara

was sentenced to 114 months’ imprisonment. Between them, the Rojases raise a

number of issues on appeal. After careful consideration, we affirm both their

convictions and sentences.

                                         I

                                         A

      The facts of this case center on a mortgage fraud conspiracy that took place

during the real estate boom of 2005–2007. The conspiracy involved recruiting

straw buyers with good credit scores to apply for mortgages to purchase million-

dollar homes in Miami. Despite their decent credit, the straw buyers were of

modest means and couldn’t actually afford the mortgages or provide the requisite

cash-to-close. They were nevertheless granted mortgages based on forged bank

statements and loan documents filled with material misrepresentations about their

professions, assets, and abilities to pay—including, notably for our purposes here,

that they wouldn’t need to borrow any money to pay closing costs. Most of the

transactions at issue in this appeal involved two affiliated entities—Sun Trust Bank



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(STB), and its wholly-owned subsidiary, Sun Trust Mortgage, Inc. (STMI); STB

provided the loan money to STMI, which was responsible for issuing the loans.

      Once the banks approved the loan applications, they would wire the loan

money to Miller Title & Escrow, L.L.C. (Miller Title). Michael and Barbara, who

was a licensed closing agent, operated Miller Title, which was responsible for

certifying the fraudulent HUD-1 Settlement Statements used to acquire the loans.

The Rojases also ran a sister organization, BND Title Services, Inc. (BND),

through which they routed portions of the loan money received by Miller Title to

be used to fund the buyers’ cash-to-close payments. BND also retained a portion

of the loaned funds, which in theory would have been due to the buyer.

Eventually, each of the properties purchased as part of the conspiracy went into

foreclosure, as the straw buyers defaulted on their mortgages.

                                          B

      A grand jury issued a superseding indictment charging the Rojases with the

following: one count of conspiracy to commit bank and wire fraud, in violation of

18 U.S.C. § 1349; ten counts of wire fraud affecting a financial institution, in

violation of 18 U.S.C. § 1343; and two counts of bank fraud, in violation of 18

U.S.C. § 1344. Michael was also charged with an additional count of bank fraud

related to a separate transaction involving the purchase of a personal residence.

The wire-fraud counts involved STB and STMI, and the bank-fraud counts



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involved Washington Mutual and Indy Mac Banks. Unlike the rest of their

indicted co-conspirators, the Rojases chose to go to trial, where a jury found them

guilty on all counts. Michael was sentenced to 136 months’ imprisonment, and

Barbara was sentenced to 114 months’ imprisonment.

       The Rojases raise the following issues on appeal: (1) whether there was

sufficient evidence that their crimes affected a financial institution for purposes of

the wire-fraud counts involving STB and STMI; (2) whether there was sufficient

evidence of Barbara’s intent to defraud 1; (3) whether the district court abused its

discretion by (a) preventing Michael’s mental-health expert from testifying about

his intent to defraud or (b) rejecting his theory-of-defense jury instruction; (4)

whether the district court erred in allowing a lay witness to testify about Michael’s

signature; (5) whether the district court erred by not ruling on Barbara’s motion in

limine relating to “good conduct” evidence; and (6) whether the Rojases’ sentences

were substantively unreasonable. We’ll take these arguments in turn.




1
  In his brief, Michael appears to adopt Barbara’s sufficiency-of-the-evidence argument, but he
does not discuss any sufficiency issues unique to his case. A defendant cannot adopt a co-
defendant’s sufficiency challenge, because “the fact-specific nature of an insufficiency claim
requires independent briefing if we are to reach the merits.” See United States v. Khoury, 901
F.2d 948, 963 n.13 (11th Cir. 1990). As a result, we will not review the sufficiency of the
evidence as to Michael’s intent to defraud.


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                                                 II

       First we’ll discuss whether there was sufficient evidence that the Rojases’

wire fraud “affect[ed] a financial institution” within the meaning of 18 U.S.C. §

1343. We review the sufficiency of the evidence de novo “in the light most

favorable to the Government, . . . drawing all reasonable inferences and credibility

choices in the Government’s favor.” United States v. Capers, 708 F.3d 1286, 1296

(11th Cir. 2013). “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.” Id. at 1297 (quotation omitted).

       The Rojases were charged with wire fraud affecting a financial institution

under 18 U.S.C. § 1343—this Court has held that exposing a financial institution to

“an increased risk of loss” is sufficient to satisfy the statute’s “affect[ing] a

financial institution” element. See United States v. Martin, 803 F.3d 581, 587–88,

590 (11th Cir. 2015). 2 Along those lines, the district court here instructed the jury

that an act “[a]ffect[s] a financial institution” if it “expos[es] the financial

institution to an actual loss or . . . an increased risk of loss.”




2
  The statute of limitations on wire fraud is ten years “if the offense affects a financial
institution.” 18 U.S.C. § 3293(2). As the government notes in its brief, because the Rojases’
crimes took place between 2006–2007, but they weren’t indicted until 2015 and 2016, without a
finding that the crimes affected a financial institution the prosecution could run into statute-of-
limitations issues.


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       On appeal, the Rojases argue that “[t]here was neither federal jurisdiction

nor sufficient evidence to convict” them on their wire-fraud counts involving STB

and STMI, “because the overwhelming evidence at trial was that STMI, which was

not federally insured at the time, was the entity that was materially affected by the

indicted fraudulent conduct,” not STB, the federally insured financial institution.

Br. of Appellant M.R. at 40, 43. The Rojases’ argument focuses largely on the

government’s evidence about whether STMI was actually a wholly-owned

subsidiary of STB—they note that this relationship was established through

testimony stated in the present tense, which they argue doesn’t sufficiently show

that STMI was a wholly-owned subsidiary at the time of the crimes.3

       The government, on the other hand, argues that the evidence presented

established that the Rojases’ crimes affected a financial institution, because it

clearly demonstrated that STB provided the money used in STMI’s loans to the

straw buyers. Indeed, when STB wired the loan money to STMI, it was recorded

as a “general ledger credit” offset by a “general ledger debit” for STMI. The

government contends, therefore, that STB’s provision of the loan money alone

“established the necessary exposure to an increased risk of loss,” as the “debts


3
  The Rojases also argue that they were “not on notice that STB would be affected by a default
on a mortgage solicited by, processed, reviewed and approved by STMI.” Even if we assume
that’s true, 18 U.S.C. §§ 1343 and 3293(2) do not include a knowledge requirement as to the
scheme’s effect on a financial institution—this distinguishes wire fraud from bank fraud, for
example, which does include such a knowledge requirement, see 18 U.S.C. § 1344.


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affected [its] financial condition and balance sheet”—if the straw buyers didn’t

repay STMI, then STMI wouldn’t be able to repay STB.4 Br. of Appellee at 16–

17.

       We conclude that the evidence here was sufficient to demonstrate that the

Rojases’ crimes affected STB. The fact that STB was the source of the loan

money distributed by STMI put it at an increased risk of loss sufficient to implicate

the “affects a financial institution” language in 18 U.S.C. §§ 1343 and 3293(2). Cf.

Martin, 803 F.3d at 590.

                                               III

       Next we’ll discuss Barbara’s sufficiency-of-the-evidence claim. A common

element to all of Barbara’s counts of conviction is that she acted with an intent to

defraud. See 18 U.S.C. §§ 1343, 1344, 1349; United States v. Bradley, 644 F.3d

1213, 1239 (11th Cir. 2011) (“Proof of intent to defraud is necessary to support [a]

conviction[] for . . . wire fraud.”); United States v. Williams, 390 F.3d 1319, 1324

(11th Cir. 2004) (noting that the government must demonstrate an “intent to

defraud” to convict a defendant of bank fraud). Barbara contends that the evidence

produced at trial was insufficient to prove that she “knew of the fraudulent scheme


4
 The Rojases argue that “[t]he fact that some loan funding was wired directly from STB to
Miller [Title], without more, did not mean that STB would incur any loss.” Sections 1343 and
3293(2) don’t have actual-loss requirements, so this argument is unavailing. See, e.g., Martin,
803 F.3d at 589 (noting that despite the “possibility that [the bank] suffered no loss, it was
nonetheless defrauded,” as the “scheme to defraud is all that the government must prove”).


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concocted by others and acted with the requisite specific intent to violate the law.”

Br. of Appellant B.R. at 14. Specifically, Barbara alleges that the evidence at trial

merely demonstrated that “she was a title agent who may have signed an

unidentified number of checks to close”—she says that there wasn’t any evidence

“that she was personally involved in any of the closings or had any knowledge of

the fraudulent conduct of” her co-conspirators or “that she prepared or signed any

of the loan application documents.” Id. at 14–15.

      The government responds by citing several pieces of key testimony

implicating Barbara in the fraud. First, it references the testimony of Carlos Jitric,

one of the Rojases’ co-conspirators who was responsible for recruiting the straw

buyers. When asked on the stand whether he “ever s[a]t down and discuss[ed]

[the] scheme with Barbara Rojas,” Jitric unequivocally said yes, noting that he

spoke with her about the transactions “[a]round 2005” and told her “[t]hat the

buyers didn’t have the amount of money for the closing and the documents were

not legit.” Additionally, some of Barbara’s co-conspirators—including Michael—

confirmed that she signed checks and wrote out deposit slips that were integral to

the conspiracy. Miller Title employee Roxanna Tanaka testified that she knew the

company was engaged in wrongdoing, but she followed Michael and Barbara’s

orders because they were her employers. For example, Tanaka explicitly stated




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that Barbara told her to tell anyone who asked about BND that it “no longer existed

and [she] had no information.”

      Reviewing the evidence in the light most favorable to the jury verdict, we

conclude that it was sufficient to establish Barbara’s intent to defraud. See

Capers, 708 F.3d at 1296–97. Barbara owned and operated both Miller Title and

BND, and multiple individuals involved in the conspiracy testified about her

involvement in and knowledge of the fraudulent scheme.

                                         IV

      On, then, to Michael’s contentions pertaining to his mental-health-related

arguments. One of Michael’s defenses at trial was that he was in a manic state at

the time of many of the relevant transactions, which negated the specific intent

necessary to commit the charged crimes. The government moved in limine to

prevent Michael from introducing expert testimony from Dr. Mark Mills that

Michael’s bipolar disorder prevented him from being able to form an intent to

defraud, and the district court conducted a Daubert hearing.

      Although Dr. Mills was ultimately allowed to testify, the scope of his

testimony was limited—the parties agreed that the following instructions would be

read before Dr. Mills’s testimony:

            Dr. Mills may not offer an opinion on the ultimate issue to be
      decided by the jury, which is whether or not defendant Michael Rojas
      had the requisite mens rea to commit the crimes charged in the
      superseding indictment. Rather, he is to confine his testimony to the

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      meaning of terms like manic and psychosis, and he may discuss his
      diagnosis, characteristics of Bipolar I disorder and its typical effect on
      a person’s mental state but not specifically on the defendant’s actual
      intent to the charged crimes.

            Dr. Mills may not at any time state that the defendant lacked the
      capacity to form the mens rea either in mid-2007 or any other time.

            Dr. Mills’ testimony must be confined to the specific time
      period of mid-2007 when the defendant was diagnosed as having
      Bipolar I disorder and with the purchase of [his personal residence],
      and to no other event nor time period . . . .

Dr. Mills went on to testify at trial that Michael suffered from Bipolar I disorder

and that he experienced instances of severe mania and “outright psychosis, periods

where he’s really . . . kind of crazy,” which could render him “[g]rossly impaired”

and diminish his judgment.

                                          A

      Michael first argues that the district court erred by not allowing Dr. Mills to

testify that a person with his disorder wouldn’t be able to form the requisite intent

to commit fraud. The government, on the other hand, argues that the district

court’s exclusion of this testimony was a straightforward application of Federal

Rule of Evidence 704(b), which states the following: “In a criminal case, an expert

witness must not state an opinion about whether the defendant did or did not have a




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mental state or condition that constitutes an element of the crime charged or of a

defense. Those matters are for the trier of fact alone.”

      We review evidentiary rulings for abuse of discretion. See United States v.

Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007). We hold that the district court did

not abuse its discretion by excluding testimony by Dr. Mills that someone with

Michael’s condition would not be able to form the requisite intent to commit fraud.

See, e.g., United States v. Jeri, 869 F.3d 1247, 1266 (11th Cir. 2017); United States

v. Manley, 893 F.2d 1221, 1223 (11th Cir. 1990) (noting that “[c]ourts cannot

permit the use of the hypothetical question as a vehicle to circumvent the clear

mandate of Rule 704(b)”). And even if the exclusion of this testimony was an

error, it would nevertheless be harmless. United States v. Dulcio, 441 F.3d 1269,

1274 (11th Cir. 2006). Michael stipulated to this limitation, and he was able to

introduce ample “psychiatric evidence to negate specific intent.” United States v.

Ettinger, 344 F.3d 1149, 1153 (11th Cir. 2003).

                                          B

      Michael also challenges the district court’s refusal to give the following jury

instruction:

             The burden is on the government to prove that Mr. Rojas had
      specific intent to commit the fraud alleged in the indictment. There
      has been testimony that Mr. Rojas, during the relevant time period of
      the indictment, was suffering from a mental health condition that may
      have impacted his judgment. If you find that Mr. Rojas was, in fact,
      suffering from a mental illness and that the mental illness affected his

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      judgment to the extent that it would have made it difficult for him to
      appreciate the fraudulent scheme perpetrated by Mr. Jitric and others;
      you may consider that information in determining whether the
      government has established that Mr. Rojas had specific intent to
      commit the offenses charged.
      Instead, the district court said the following about Michael’s defense theory:

             Their theory of defense, defendant Michael Rojas’ theory, is
      that he did not act knowingly, willfully, and with specific intent to
      commit the crimes charged. . . .

             Understand, ladies and gentlemen, it is not the defense’s theory
      that the defendant Michael Rojas was insane at the time the offenses
      were committed. Rather, his theory is that he could not formulate the
      specific intent in mid-2007 to commit the charged offenses because of
      a bipolar disorder.

      We review a district court’s refusal to give a requested theory-of-defense

instruction for an abuse of discretion. United States v. Willner, 795 F.3d 1297,

1310 (11th Cir. 2015). The court abuses its discretion by refusing to give a

requested instruction when “(1) the requested instruction states the law correctly;

(2) the requested instruction was not substantially covered by the remainder of the

jury charge; and (3) the requested instruction’s subject matter deals with an issue

so important that the district court’s failure to give it seriously impaired the

defense.” Id. District courts have “broad discretion to formulate jury instructions

provided those instructions are correct statements of the law”—we “defer to the

district court on questions of phrasing.” United States v. Miller, 819 F.3d 1314,

1316 (11th Cir. 2016) (quotation omitted).



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      Michael argues that the district court’s chosen charge was “fatally incorrect”

for two reasons: (1) “because the testimony of Dr. Mills was that [Michael] had

Bipolar I Disorder during the entire time of the charged conspiracy . . . not just

mid-2007,” and (2) that the charge “deprived [the jury] of the critical missing

testimonial link” that a person suffering from Bipolar I Disorder would not “be

able to form the requisite specific intent to engage in a complex fraud.” Br. of

Appellant M.R. at 54–55. The government, on the other hand, contends that

Michael’s proposed jury instruction misstated the law of this Circuit, which holds

that psychiatric evidence is relevant only to completely negate specific intent—not

to argue that a defendant’s disorder might have impaired his judgment. See, e.g.,

United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir. 1990) (“[I]t is clear that

Congress meant to eliminate any form of legal excuse based upon one’s lack of

volitional control. This includes a diminished ability or failure to reflect

adequately upon the consequences or nature of one’s actions.”). Further, the

government asserts that the mid-2007 time limitation was stipulated to by the

parties, see supra at 10, and that, in any event, Michael only testified that he was

manic in mid-2007.

      Here, we conclude that the district court did not abuse its discretion in

rejecting Michael’s requested theory-of-defense instruction. Michael’s proposed

instruction did not accurately characterize the law in this Circuit, see id., and, in



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any event, the substance of the district court’s instruction correctly stated the law

and reflected the parties’ stipulated statement read before Dr. Mills’s testimony; its

substitution for Michael’s preferred instruction in no way “seriously impaired” his

defense, see Willner, 795 F.3d at 1310. The district court acted well within its

broad discretion here.

                                                V

       Michael also challenges the testimony of a government witness identifying

his signature on an exhibit at trial. Lewis Sellars, a supervisory auditor with the

United States Attorney’s Office Economic and Environmental Crime Center,

testified that a signature on a check used in the cash-to-close portion of the

fraudulent scheme was Michael’s. Essentially, Michael argues that this “summary

witness for monetary transactions gave opinion evidence that a signature was

[Michael’s] without being qualified as an expert in that area; and admission of the

testimony, at the very least, was speculative and should have been excluded

pursuant to” Federal Rule of Evidence 403. Br. of Appellant M.R. at 60. Michael

did not object to this testimony at trial, 5 so we review this claim for plain error.

See Edouard, 485 F.3d at 1343 (“[W]here . . . the defendant failed to preserve his



5
  Michael moved for a mistrial after Sellars’s testimony, but he argued only that there was
insufficient evidence to connect him to the forgery of a check—he did not challenge Sellars’s
qualification to identify his signature. And, in moving for a mistrial, Michael’s counsel appeared
to concede that Michael had signed the check in question.


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challenge to an evidentiary ruling by contemporaneously objecting, our review is

for plain error.”).

        To establish plain error, Michael must show “(1) error, (2) that is plain, and

(3) that affects substantial rights.” United States v. Shelton, 400 F.3d 1325, 1328–

29 (11th Cir. 2005) (quotation omitted). “If all three conditions are met, [we] may

then exercise [our] discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1329 (quotation omitted). Even if we assume that this

testimony was admitted in error, that error did not affect Michael’s substantial

rights. Michael had an opportunity to cross-examine Sellars, and he later called

Sellers as a surrebuttal witness to challenge his identification of Michael’s

signature. In addition, the jury could easily compare Michael’s signature on the

check in question to his signature on numerous other exhibits, many of which he

admitted to signing.

                                           VI

       Next we’ll discuss Barbara’s contention that the district court abused its

discretion by failing to deny the government’s motion in limine aimed at excluding

good-conduct evidence—specifically, as Barbara describes it, “evidence of

legitimate loans which would have established a pattern of conduct . . . reflecting

that she merely signed checks to close and was not involved in the actual closings



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and/or the preparation or signing of closing documents.” Br. of Appellant B.R. at

19. The government objected to Barbara’s potential defense, but the district court

deferred ruling on its motion, stating that it would “[d]ecide it when the issue [wa]s

brought up” during the trial.

      Barbara does not appear to have ever attempted to introduce any good-

conduct evidence at trial, nor does she reference any such evidence that the district

court excluded. Thus, the district court didn’t—couldn’t, really—err, as no

opportunity arose for it to rule on this motion.

                                         VII

      Finally, Michael and Barbara challenge the substantive reasonableness of

their sentences of 136 months and 114 months, respectively, arguing that their

sentences were disproportionate to the sentences of both their co-defendants and of

other similarly situated defendants. Although the Rojases’ recommended

Guidelines ranges were between 188–235 months’ imprisonment, the district court

granted them downward variances.

      We evaluate the substantive reasonableness of a sentence based on the 18

U.S.C. § 3553(a) factors and “the totality of the circumstances.” Gall v. United

States, 552 U.S. 38, 51 (2007). “A district court abuses its considerable discretion

and imposes a substantively unreasonable sentence only when it (1) fails to afford

consideration to relevant factors that were due significant weight, (2) gives



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significant weight to an improper or irrelevant factor, or (3) commits a clear error

of judgment in considering the proper factors.” United States v. Rosales-Bruno,

789 F.3d 1249, 1256 (11th Cir. 2015) (quotation omitted). As a result, “it is only

the rare sentence that will be substantively unreasonable,” id. (quotation omitted),

and we usually “expect a sentence within the Guidelines range to be reasonable,”

United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quotation omitted).

Additionally, “[d]isparity between the sentences imposed on codefendants is

generally not an appropriate basis for relief on appeal.” United States v. Regueiro,

240 F.3d 1321, 1325–26 (11th Cir. 2001). In particular “there is no unwarranted

disparity when a cooperating defendant pleads guilty and receives a lesser sentence

than a defendant who proceeds to trial.” United States v. Mateos, 623 F.3d 1350,

1367 (11th Cir. 2010) (quotation omitted).

      The Rojases’ sentences—although admittedly lengthy—were not

substantively unreasonable. The sentences imposed were below the recommended

Guidelines range, and their co-defendants pleaded guilty in lieu of proceeding to

trial. The district court did not abuse its discretion here.

      AFFIRMED.




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