                                                                           FILED
                           NOT FOR PUBLICATION                               JUL 23 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10119

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00256-SMM-1

  v.
                                                 MEMORANDUM *
MARIO GERARD BERNADEL,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
              Stephen M. McNamee, Senior District Judge, Presiding

                        Argued and Submitted June 13, 2012
                             San Francisco, California

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

       Mario G. Bernadel appeals his conviction by jury of one count of conspiracy

to commit mail fraud, wire fraud, and bank fraud in violation of 18 U.S.C.

§§ 1349, 1341, 1343, and 1344 (Count 1), six counts of mail fraud in violation of

18 U.S.C. § 1341 (Counts 2–7), seven counts of wire fraud in violation of 18



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1343 (Counts 8–14), one count of bank fraud in violation of 18 U.S.C.

§ 1344 (Count 15), and four counts of money laundering in violation of 18 U.S.C.

§ 1957(a) (Counts 18, 19, 20, and 43). We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

      (1) The government presented sufficient evidence for a rational trier of fact,

viewing the evidence in the light most favorable to the prosecution, to find

Bernadel guilty beyond a reasonable doubt of conspiracy to commit mail fraud,

wire fraud, and bank fraud (Count 1). See United States v. Nevils, 598 F.3d 1158,

1163–64 (9th Cir. 2010) (en banc). The evidence introduced at trial supported the

conclusion that Bernadel worked together with Amanda Adorno, April Lucero, and

other co-defendants to recruit straw buyers with good credit scores and falsify the

information on the buyers’ loan applications for the agreed-upon purpose of

deceiving financial institutions in order to get home loans approved, that they used

the United States mails and wires to carry out this scheme to defraud, and that one

or more overt acts listed in the indictment was taken in furtherance of the illegal

purpose. See United States v. Alonso, 48 F.3d 1536, 1543 (9th Cir. 1995); see also

United States v. Rizk, 660 F.3d 1125, 1134–35 (9th Cir. 2011); Sanford v.

MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010).




                                           2
      There was also sufficient evidence to convict Bernadel on a Pinkerton theory

of liability for the substantive counts of mail fraud (Counts 2–7), wire fraud

(Counts 8–14), and bank fraud (Count 15). See Pinkerton v. United States, 328

U.S. 640, 646–48 (1946). Although the government did not present evidence

directly tying Bernadel to the specific transactions that served as the basis for

Counts 2–12 and 14–15,1 there was adequate evidence to support the conclusion

that these transactions were reasonably foreseeable acts committed by co-

defendants Adorno and Lucero in furtherance of the same overall conspiracy, see

United States v. Bingham, 653 F.3d 983, 997 (9th Cir. 2011), and that Bernadel

“knew, or had reason to know, that his benefits were probably dependent upon the

success of the entire operation,” United States v. Fernandez, 388 F.3d 1199, 1226

(9th Cir. 2004) (quoting United States v. Duran, 189 F.3d 1071, 1080 (9th Cir.

1999)). Regardless whether, as Bernadel asserts, he and his co-conspirators were

in some sense competing real estate investors, the evidence established that there

was “an interdependent relationship between [their] fraudulent activities.” United

States v. Olano, 62 F.3d 1180, 1194 (9th Cir. 1995). Bernadel helped facilitate the

transactions alleged in Counts 2–12 and 14–15 by, for example, (1) teaching


      1
        The jury could rationally conclude from the evidence that Bernadel was
directly involved in the transaction that served as the basis for Count 13, a wire
transfer of loan proceeds used to purchase Bernadel’s own personal property.

                                           3
Adorno and Lucero how to carry out their own “cash-back” deals by recruiting

straw buyers with good credit scores, setting up a limited liability company (LLC),

getting the target property appraised at an amount higher than the seller’s asking

price, and using co-defendant and escrow agent Chris Bartlemus for the closing,

(2) appearing at the closing of Adorno’s first cash-back deal and assuring the straw

buyers Adorno had recruited that the transaction was “completely legal,” (3)

providing Adorno and Lucero with a joint venture agreement to use with straw

buyers, (4) meeting with Adorno and Lucero to discuss potential sellers, and (5)

serving as the seller in one of Adorno’s cash-back deals. Further, Bernadel

benefitted substantially, albeit indirectly, from Adorno’s and Lucero’s deals: he

sold at least four of his own properties to straw buyers that Adorno and Lucero

recruited, and he borrowed $90,000 from Adorno that he had reason to know she

had received from the illegal scheme.

      The government also presented sufficient evidence for the jury to conclude

beyond a reasonable doubt that Bernadel was responsible, as either a principal or

an aider and abettor, for the transactions that served as the basis for money

laundering Counts 18, 19, 20, and 43. The jury could rationally conclude that

Bernadel was directly responsible for the cash-back transfers alleged in Counts 19

and 20 from Security Title to, respectively, JC Development (co-defendant John


                                          4
Webber’s company) and Compass Development (Bernadel’s company), as these

transfers involved proceeds from a fraudulently obtained loan used by straw buyer

Christine Shiplett to purchase Bernadel’s own personal property. There was also

sufficient evidence to support the conclusion that Bernadel aided and abetted the

cash-back transfer from Security Title to Lamp Light Marketing alleged in Count

43. Based on Joyce Johnson’s testimony that Bernadel was present at the closing

for the property involved and reassured the straw buyers that the transaction was

completely legal, the jury could infer that Bernadel participated in the transaction

as something he wished to bring about and sought by his assurance to make it

succeed. See United States v. Hungerford, 465 F.3d 1113, 1117 (9th Cir. 2006); 18

U.S.C. § 2.2 Finally, the jury could rationally conclude that Bernadel aided and

abetted the cash-back transfer alleged in Count 18 from Security Title to AMB

Consulting (co-defendant Marcus Branch’s company) based on evidence that

Bernadel was the instigator of the overall scheme and generally assisted Adorno,

Lucero, and the others in its implementation. This was enough for the jury to infer



      2
        Bernadel’s assertion that his conviction on Count 43 must be overturned
because the government did not charge the underlying criminal activity from which
the cash-back funds were derived is unfounded. A money laundering conviction
will stand so long as the evidence is sufficient to allow the jury to conclude that the
funds were the receipts of prior criminal activity, whether charged or uncharged.
See United States v. Jenkins, 633 F.3d 788, 805–06 (9th Cir. 2011).

                                           5
that he sought by his actions to make this transaction succeed. See Hungerford,

465 F.3d at 1117; see also United States v. Smith, 832 F.2d 1167, 1170–71 (9th

Cir. 1987).

         Because there was sufficient evidence to support Bernadel’s conviction on

all counts, the district court did not err in denying Bernadel’s motion for acquittal,

nor did it abuse its discretion in denying Bernadel’s motion for a new trial. See

Nevils, 598 F.3d at 1170; United States v. Alston, 974 F.2d 1206, 1211–12 (9th Cir.

1992).

         (2) The district court did not commit plain error in failing to instruct the jury

that in order to convict Bernadel of the money laundering counts, it was required to

find that the transactions at issue involved profits, and not merely gross receipts, of

criminal activity. See generally United States v. Santos, 553 U.S. 507 (2008). It is

not “clear” or “obvious” under current law, see United States v. Olano, 507 U.S.

725, 734 (1993), that the cash-back transfers that served as the basis for the money

laundering counts merged with the substantive counts of mail fraud, wire fraud,

and bank fraud, such that a Santos jury instruction was required, see United States

v. Van Alstyne, 584 F.3d 803, 814–16 (9th Cir. 2009). The criminal conduct

charged in the substantive fraud counts (the mailings of the fraudulent loan

applications to the mortgage lenders, as well as the wire transfers from the


                                              6
mortgage lenders to Security Title) was different from the criminal conduct

charged in the money laundering counts (the cash-back transfers from Security

Title to the defendants after the loans had been fraudulently procured), indicating

that the money laundering transactions were not “a crucial element of the ‘scheme

to defraud.’” Id. at 815; see also United States v. Wilkes, 662 F.3d 524, 549 (9th

Cir. 2011); United States v. Ali, 620 F.3d 1062, 1072 (9th Cir. 2010). Furthermore,

it would not be plain error to conclude that there is no merger problem where, as

here, the money laundering counts are based on transfers of ill-gotten gains from

one co-conspirator to another. See Wilkes, 662 F.3d at 549. Finally, unlike in

Santos, the money laundering counts did not lead to “‘a radical increase in the

statutory maximum sentence’ for the underlying offense,” United States v. Bush,

626 F.3d 527, 538 (9th Cir. 2010) (quoting United States v. Kratt, 579 F.3d 558,

562 (6th Cir. 2009)); in fact, they did not increase Bernadel’s sentence at all

because the district court ordered all prison terms to run concurrently.

Accordingly, the district court did not plainly err in not giving a Santos jury

instruction.

      (3) The district court did not abuse its discretion in relying on the purported

Maricopa County property records for its loss calculation under U.S.S.G. §

2B1.1(b) because the information contained therein was corroborated by the


                                           7
escrow files introduced at trial, and the records therefore bore “sufficient indicia of

reliability to support [their] probable accuracy.” U.S.S.G. § 6A1.3(a); see also

United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993).

      (4) The district court did not commit plain error by using a preponderance-

of-the-evidence standard of proof, as opposed to a clear-and-convincing-evidence

standard of proof, in calculating loss under U.S.S.G. § 2B1.1(b) because the loss

calculation was based on evidence presented at trial to support the conspiracy

charge, and Bernadel cannot contend that he was “denied adequate procedural

protection in contesting that evidence.” United States v. Treadwell, 593 F.3d 990,

1001 (9th Cir. 2010).

      (5) The district court did not err by increasing Bernadel’s offense level by

eighteen levels under U.S.S.G. § 2B1.1(b)(1)(J) based on a finding that the loss

attributable to Bernadel was more than $2.5 million but less than $7 million.

Although the district court erred by calculating loss based on the purchase price

less the amount the lender or successor lender recovered through sale of the

property after foreclosure, rather than the loan amount less the amount the lender

or successor lender recovered through sale of the property after foreclosure, see

United States v. Yeung, 672 F.3d 594, 604 (9th Cir. 2012), and by including loss

purportedly related to properties that were never the subject of foreclosure


                                           8
proceedings, these errors were harmless. Even using the proper methodology, the

loss attributable to Bernadel was over $2.5 million. The district court was not

required to credit against loss the mortgage payments made on the loans because

Bernadel did not point to any specific payments that were made, and the evidence

at trial indicated that any payments were negligible and did not decrease the

principal balance due on the loans. See United States v. Davoudi, 172 F.3d 1130,

1136 (9th Cir. 1999); United States v. Allen, 88 F.3d 765, 771 (9th Cir. 1996). Nor

did the district court err by including the loss incurred by successor lenders,

because such loss was a reasonably foreseeable pecuniary harm resulting from

Bernadel’s offense. See U.S.S.G. § 2B1.1 app. n.3(A)(i). Finally, the district court

was not required to discount the loss to account for external market factors beyond

Bernadel’s control because the Guidelines explicitly provide that in cases

involving pledged collateral, the loss should be reduced by “the amount the victim

has recovered at the time of sentencing from disposition of the collateral,” not by

the value the collateral could have had in better economic conditions. U.S.S.G.

§ 2B1.1 app. n.3(E)(ii) (emphasis added).

      (6) The district court did not err in increasing Bernadel’s offense level by

two levels under U.S.S.G. § 2B1.1(b)(14)(A) (2009) based on a finding that

Bernadel derived more than $1 million in gross receipts from one or more financial


                                           9
institutions. The loan that was fraudulently obtained for straw buyer Shiplett to

purchase Bernadel’s property at 7301 East Third Avenue #309 alone totaled

$932,760.52; this money flowed to Bernadel as the seller and qualifies as “gross

receipts” regardless whether Bernadel used some of it to pay the straw buyer or to

pay off his mortgage. See United States v. Kohli, 110 F.3d 1475, 1477–78 (9th Cir.

1997). The district court also properly included as “gross receipts” the

fraudulently obtained loan proceeds that passed through Security Title to

Bernadel’s company as cash-back. See Kohli, 110 F.3d at 1477–78. Based on

Bartlemus’s notes (introduced into evidence as trial exhibit 334) showing that he

disbursed over $100,000 in loan proceeds for properties involved in the conspiracy

to Bernadel’s company as cash-back, together with the Shiplett loan, the district

court could conclude by a preponderance of the evidence that Bernadel derived

over $1 million in gross receipts from one or more financial institutions “directly

or indirectly as a result of [his] offense[s].” U.S.S.G. § 2B1.1 app. n.11(B).

      (7) The district court did not err in increasing Bernadel’s offense level by

two levels under U.S.S.G. § 2B1.1(b)(2)(A) based on a finding that there were ten

or more victims. Even when considering only the counts of conviction, Bernadel

was responsible for defrauding the ten mortgage lenders identified in Counts 2–15

of the indictment, whose losses were also included in the district court’s loss


                                          10
calculation. See United States v. Armstead, 552 F.3d 769, 780–81 (9th Cir. 2008).

Contrary to Bernadel’s assertion, the Guidelines do not require that victims come

forward to claim restitution in order to be counted under U.S.S.G. § 2B1.1(b)(2), as

the Guidelines enhancements serve different purposes than the restitution statute.

See United States v. Gossi, 608 F.3d 574, 579–80 (9th Cir. 2010).

      (8) The district court did not err in applying a two-level sentence

enhancement under U.S.S.G. § 3C1.1 based on obstruction of justice. The district

court reasonably concluded that Bernadel’s multiple pro se pleadings, which

demanded that various individuals associated with the case, including government

witnesses Thomas Giallanza and William Park, comply with his requests or be

subject to default judgments or prosecution for mail and wire fraud, constituted an

attempt to “threaten[], intimidat[e], or otherwise unlawfully influenc[e] . . . [a]

witness.” U.S.S.G. § 3C1.1 app. n.4(A). Although Bernadel’s pro se pleadings

were filed after all the trial testimony had concluded, they could have been

intended to influence potential witnesses at sentencing. Cf. United States v.

Kilbride, 584 F.3d 1240, 1262 (9th Cir. 2009). The district court’s assessment of

Bernadel’s intent in filing these pleadings was a finding of fact, which we review

for clear error. See United States v. Shetty, 130 F.3d 1324, 1333 (9th Cir. 1997).

Given that Bernadel continued to file several pleadings threatening suit even after


                                           11
the district court warned him that they had the potential “to harass and disrupt lives

of public employees,” the district court could logically infer that Bernadel’s intent

was to threaten and intimidate potential witnesses, rather than to set forth a

legitimate claim. See United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009) (en banc).

      (9) The district court did not abuse its discretion in declining to grant a

downward departure under U.S.S.G. § 2B1.1 app. n.19(C), on the ground that the

Guidelines range substantially overstated the seriousness of Bernadel’s offense.

Post-Booker, we do not review the district court’s application of a particular

departure provision for procedural error; rather, we review the district court’s

deviation from the applicable Guidelines range once for substantive

reasonableness. See United States v. Ellis, 641 F.3d 411, 421–22 (9th Cir. 2011);

United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006).

      (10) Because the district court did not err in calculating Bernadel’s offense

level as 35, the district court did not err in imposing a $25,000 fine, which was at

the low end of the Guidelines range of $20,000 to $200,000. See U.S.S.G.

§ 5E1.2(c)(3).

      (11) Bernadel’s sentence was not substantively unreasonable. His sentence

of 200 months was at the low end of the Guidelines range of 188 to 235 months for


                                          12
an offense level of 35, see U.S.S.G. § 5.A, and well within the statutory maximum

of thirty years for mail fraud, wire fraud, bank fraud, and conspiracy to commit the

same, see 18 U.S.C. §§ 1341, 1343, 1344, 1349. The district court carefully

reviewed all the sentencing materials, considered the factors set forth in 18 U.S.C.

§ 3553(a), and explained that a sentence of 200 months was appropriate because it

was in line with sentences imposed by other courts in similar mortgage fraud cases,

and because Bernadel engaged in serious deception and manipulation, leaving

many broken lives in his wake. This was not an abuse of discretion. See United

States v. Carty, 520 F.3d 984, 993–95 (9th Cir. 2008) (en banc).

AFFIRMED.




                                         13
                                                                               FILED
United States v. Bernadel, No. 10-10119                                        JUL 23 2012
IKUTA, Circuit Judge, concurring in part and dissenting in part:
                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

      Although I agree with the majority’s conclusions as to all other claims, I

would reverse Bernadel’s conviction on Count 18. A rational trier of fact, viewing

the evidence in the light most favorable to the prosecution, could not conclude

beyond a reasonable doubt that Bernadel aided and abetted the “cash-back”

transfer from Security Title to AMB Consulting that served as the basis for this

money laundering count. See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th

Cir. 2010) (en banc). Unlike Pinkerton liability, which focuses on the defendant’s

role in the overall conspiracy, aiding and abetting liability depends on the

defendant’s connection to the specific criminal act the defendant is alleged to have

aided or abetted. See United States v. Bingham, 653 F.3d 983, 997 (9th Cir.

2011).1 There was, quite simply, no evidence that Bernadel associated himself

with the specific transaction alleged in Count 18, participated in it as something he

wished to bring about, or sought by his actions to make it succeed. See United

States v. Hungerford, 465 F.3d 1113, 1117 (9th Cir. 2006).




      1
       Contrary to the government’s suggestion at oral argument, the district court
did not give a Pinkerton instruction with respect to the money laundering counts,
so we cannot uphold Bernadel’s money laundering convictions on a Pinkerton
theory. See United States v. Straub, 538 F.3d 1147, 1165 (9th Cir. 2008).
