               Case: 13-10432       Date Filed: 03/31/2014       Page: 1 of 12


                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                                  ___________________

                                         No. 13-10432
                                     ___________________

                             D.C. Docket No. 1:12-cr-20156-UU-5


UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                            versus

ANNETTE TERESITA TRUJILLO,

                                                                   Defendant-Appellant.

                                     ___________________

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


                                        (March 31, 2014)

Before ANDERSON and GILMAN, ∗ Circuit Judges, and JOHNSON, ∗∗ District
Judge.
∗
  Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
∗∗
  Honorable Inge Prytz Johnson, United States District Judge for the Northern District of
Alabama, sitting by designation.
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PER CURIAM:

       Annette Trujillo appeals her conviction for bank fraud and wire fraud.

Trujillo was charged with bank fraud, wire fraud, conspiracy to commit to both,

and obstruction of justice in connection with two real estate closings she facilitated

in 2007. A jury found Trujillo guilty of bank and wire fraud, and the district court

sentenced her to sixty-five concurrent months’ imprisonment followed by three

years of supervised release. On appeal, Trujillo contends that the district court

committed the following errors: (1) allowing the government to introduce two

prejudicial newspaper articles, (2) refusing to issue a jury instruction on Trujillo’s

theory of defense and urging the Government to request a deliberate-ignorance

instruction, (3) denying Trujillo’s motion for judgment of acquittal, and (4)

considering three uncharged transactions as relevant conduct in calculating the

total fraud-loss amount. For the reasons discussed below, we affirm the judgment

of the district court.

I.     ADMISSION OF NEWSPAPER ARTICLES

       We review a district court’s evidentiary rulings for abuse of discretion.

United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir. 2012). Hearsay is defined

as an out-of-court statement admitted for the truth of the matter stated therein. FED.

R. EVID. 801(c). Generally, an out-of-court statement admitted to show its effect on

the listener is not hearsay. United States v. Cruz, 805 F.2d 1464, 1478 (11th Cir.


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1986). Moreover, a district court’s evidentiary-ruling error warrants reversal only

if “there is a reasonable likelihood that it affected the defendant’s substantial

rights.” United States v. Langford, 647 F.3d 1309, 1323 (11th Cir. 2011). In other

words, “[n]o reversal will result if sufficient evidence uninfected by any error

supports the verdict, and the error did not have a substantial influence on the

outcome of the case.” Id. (quoting United States v. Khanani, 502 F.3d 1281, 1292

(11th Cir. 2007)). The district court admitted two emails from Appellant. In the

first email, Appellant forwarded from her work address to her personal address an

article concerning the criminalization of mortgage fraud in Florida. In the second

email, Appellant forwarded her fiancé, Juan Godoy, an article regarding arrests of

several individuals for participating in a mortgage-fraud scheme. In the latter

email, Appellant wrote: “Read below . . . . It’s AMAZING and SCARY!!!!” We

find that the district court did not abuse its discretion in admitting the newspaper

articles, because the articles were not admitted for their truth and, therefore, were

not hearsay. Rather, they were admitted to show their effect on Trujillo—that she

was scared to see that people were going to jail for participating in mortgage-fraud

schemes. Contrary to Appellant’s argument, the article’s effect on Trujillo did not

depend on whether or not its contents were true. Additionally, the district court

gave an adequate limiting instruction directing jurors not to consider the newspaper

articles for their truth. In any event, Trujillo cannot establish that admitting the


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emails and article attachments affected her substantial rights. Aside from the

articles, the government introduced a mound of circumstantial evidence concerning

Trujillo’s involvement in the bank-fraud scheme. Accordingly, Trujillo cannot

establish that the admission of these two newspaper articles had a substantial

influence on the outcome of her case.

II.   JURY INSTRUCTIONS

             1.     Theory-of-Defense Instruction

      We review a district court’s refusal to give a requested jury instruction for

abuse of discretion. United States v. Ariaz-Izquierdo, 449 F.3d 1168, 1185 (11th

Cir. 2006). A court abuses its discretion in refusing to give a requested jury

instruction where “(1) the requested instruction was substantively correct, (2) the

court’s charge to the jury did not cover the gist of the instruction, and (3) the

failure to give the instruction substantially impaired the defendant’s ability to

present an effective defense.” United States v. Culver, 598 F.3d 740, 751 (11th Cir.

2010) (quotation marks and citation omitted). Trujillo requested the following jury

instruction on a finder’s fee:

      You have heard testimony regarding the payment of a “finder’s fee” in
      connection with a real estate transaction. You are hereby instructed that you
      may not draw any negative inference against that person who or the
      Company which received the “finder’s fee,” because mere payment of a
      “finder’s fee” is not prohibited by law.




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      As Appellant recognizes in her brief, however, under §475.41 of the Florida

Statutes, unlicensed brokers or sales associates may not receive finder’s fees. FLA.

STAT. § 475.41. Thus, mere payment of a finder’s fee is prohibited by law under

certain circumstances. Therefore, Trujillo’s requested instruction was not

substantively correct and the district court did not err in finding that it was

misleading. Moreover, an instruction concerning the legality of finder’s fees would

concern no factual or legal defense of Trujillo’s. Juan Godoy, not Trujillo, received

the finder’s fee. Thus, whether or not Godoy’s doing so was prohibited by law was

simply irrelevant to Trujillo’s factual or legal defense for bank and wire fraud.

Rather, the fact that Trujillo disbursed funds from the Marco Island property

closing to Godoy, her admitted fiancé and an unauthorized third party, provided

evidence of her knowledge and intent to defraud a financial institution. Clearly,

then, the district court’s failure to give an instruction on the legality of finder’s fees

did not substantially impair Trujillo’s ability to present an effective defense.

Accordingly, the district court did not abuse its discretion in refusing to give the

requested instruction.

             2.     Deliberate-Ignorance Instruction




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       When an appellant objects to a jury instruction on different grounds than the

appellant objected at trial, we review those instructions for plain error. 1 See United

States v. Puche, 350 F.3d 1137, 1148 n. 5 (11th Cir. 2003) (noting that because

defendants objected to the deliberate-ignorance instruction on different grounds on

appeal, the plain-error standard of review applied).To establish plain error, an

appellant must demonstrate that: “(1) an error occurred; (2) the error was plain; (3)

it affected his substantial rights; and (4) it seriously affected the fairness of the

judicial proceedings.” United States v. Pena, 684 F.3d 1137, 1151 (11th Cir. 2012).

The burden of persuasion rests with the appellant on the third prong, “which

almost always requires that the error must have affected the outcome of the district

court proceedings.” Id. (quoting United States v. Pantle, 637 F.3d 1172, 1177 (11th

Cir. 2011)). Moreover, trial courts enjoy broad discretion in formulating jury

instructions as long as the instructions comprise correct statements of law. United

States v. Lebowitz, 676 F.3d 1000, 1014 (11th Cir. 2012).




1
  At trial, Appellant objected to the deliberate-ignorance instruction on the grounds that
deliberate ignorance was not the Government’s theory of prosecution, that the deliberate-
ignorance instruction would result in burden shifting, and that it was tailored for a drug case and
does not apply in a case like this. On appeal, Trujillo argues that in giving the deliberate-
ignorance instruction, the district court violated her due process rights by urging the prosecutor
to request the instruction and that the instruction should not have been given in this case where
the level of mens rea is specific intent or willfulness. Appellant’s arguments against the
deliberate ignorance instruction before this court are markedly different from the arguments
made before the district court.

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      Although Appellant argues that the district court violated her due process

rights by suggesting the deliberate-ignorance instruction, Appellant cites no

precedent for such a holding. Appellant also cites no authority for her argument

that the deliberate-ignorance instruction is applicable only in cases where the sole

mens rea at issue is knowledge. Rather, in United States v. Schlei, 122 F.3d 944

(11th Cir. 1997), this court specifically discounted Appellant’s argument that by

giving the deliberate ignorance instruction, the district court converted the

willfulness element to mere knowledge. Id. at 974. In that case, we found that the

deliberate-ignorance instruction, which greatly mirrored the one given in this case,

“permitted the jury to substitute conscious avoidance for knowingly, but not

willfully, and, the summary portion of the instruction required the jury to find

either actual knowledge or ‘deliberate avoidance.’” Id. Accordingly, Trujillo fails

to establish that the district court’s deliberate-ignorance instruction was an

inaccurate reflection of the law or constituted error.

      Moreover, Trujillo cannot demonstrate that the court’s instruction affected

her substantial rights. Because the district court gave a separate instruction on

willfulness and explicitly acknowledged that the deliberate-ignorance instruction

went only to the knowledge element, the court’s instruction permitted the jury to

substitute conscious avoidance for knowingly, but not willfully. Thus, the

instruction did not, as Appellant contends, dilute the mens rea of the crimes


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charged. In Schlei, we concluded that “[t]he court’s deliberate ignorance

instruction did not constitute plain error because it did not affect Schlei’s

substantial rights.” Id. We find the same here, where Trujillo has failed to establish

that the district court’s deliberate-ignorance instruction affected her substantial

rights.

III.      JUDGMENT OF ACQUITTAL

          We review de novo the denial of a motion for acquittal based on the

sufficiency of the evidence, resolving all inferences and credibility determinations

in the government’s favor. United States v. Anderson, 326 F.3d 1319, 1326 (11th

Cir. 2013). To support Trujillo’s conviction of bank fraud under 18 U.S.C. § 1344,

the Government had to show that Trujillo knowingly executed or attempted to

execute a scheme or artifice (1) to defraud a financial institution or (2) to obtain a

financial institution’s money or property by false or fraudulent means. 18 U.S.C. §

1344. Similarly, to prove that Trujillo committed wire fraud in violation of 18

U.S.C. § 1343, the Government had to establish that Trujillo devised or intended to

devise a scheme or artifice to defraud or obtain money or property, and that

Trujillo used, or caused to be used, wires in furtherance of the scheme or artifice.

18 U.S.C. § 1343. Evidence supporting a conviction is sufficient unless “no

reasonable trier of fact could find guilty beyond a reasonable doubt.” Langford,




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647 F.3d at 1319 (11th Cir. 2011). Moreover, we judge sufficiency of the evidence

by the same standard “whether the evidence is direct or circumstantial.” Id.

      We have no doubt that a reasonable jury could have found sufficient

evidence to support Trujillo’s guilt of bank and wire fraud. Contrary to Appellant’s

assertion, Trujillo’s discredited testimony was not the only evidence supporting her

conviction. In conducting the Marco Island property closing, Trujillo knowingly

used wires to disburse proceeds from the property sale to unauthorized third

parties, namely her fiancé, Walk the Line Properties, and Larrinaga Music

Publishing, Inc. She did so despite the fact that testimony from Deborah Martin

and Scott Jackson indicated that Trujillo should have known that disbursing funds

to third parties was both frowned upon and potentially illegal. Trujillo also knew

that Diaz did not bring cash to close the purchase of the Marco Island property,

despite the fact that the HUD-1 indicated that he had a $69,493.14 cash-to-close

responsibility. Rather than securing a cashiers check or wire transfer from Diaz at

the closing, as Martin testified was the normal practice, Diaz executed a

disbursement form. After Trujillo had already gotten the HUD-1 statement

approved by Chase, she permitted Diaz’s cash-to-close payment to be deducted

from money she disbursed to Walk the Line Investments for “Repairs and

Remodeling.” Chase’s underwriter also testified that he would not have approved

the loan had he known that Diaz was not in fact providing the cash to close.


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      Additionally, Trujillo conducted closings of both the Marco Island and

Miami properties. Thus, Trujillo knew that Diaz had just purchased the Marco

Island Property, claiming that it was to be his primary residence, a mere month or

so before she facilitated the closing of his purchase of the Miami property.

Moreover, Trujillo tried to disburse money to Walk the Line and RII Contractors in

the Miami property closing as well, which First Magnus prohibited her from doing.

When First Magnus instructed Trujillo to remove the third-party distributions from

the HUD-1 statement, she disbursed two payments to the seller for $72,000 and

$164,000, of which the seller used the $164,000 to pay Walk the Line Investments

and RII Contractors. Diaz also testified that he could not read English and that

Trujillo did not translate the closing documents for him. Instead, Trujillo instructed

him to sign the forms quickly so that they could finish faster. First Magnus’s

underwriter testified that they would not have approved the loan had they known

that Diaz was a straw buyer, that he did not plan to occupy the property as his

primary residence, or that he did not plan to provide any of cash at the closing.

Although the jury could not consider the newspaper articles for their truth, one

email demonstrated that Trujillo was amazed and scared by the arrest of eleven

people in Miami-Dade County for involvement in mortgage-fraud schemes.

      The preceding facts provide sufficient evidence for a reasonable jury to

determine that Trujillo did in fact knowingly execute a scheme or artifice to


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defraud Chase and First Magnus of loan money and that she used the wires in

doing so. We, therefore, affirm the jury’s verdict and the district court’s denial of

Trujillo’s motion for judgment of acquittal.

IV.   SENTENCING CALCULATION

      We review the district court’s determination of the amount of loss for clear

error. United States v. Maxwell, 579 F.3d 1282, 1305 (11th Cir. 2009). “Clear error

will be found only if [we are] left with a definite and firm conviction that a mistake

has been committed.” Id. (quotation omitted). The district court retains broad

discretion in calculating loss, and may rely on all relevant conduct, including

uncharged conduct, that the government proves by a preponderance of the

evidence. See United States v. Hamaker, 455 F.3d 1316, 1336, 1338 (11th Cir.

2006) (considering predecessor U.S.S.G. § 2F1.1). Where § 3D1.2(d) requires

grouping of multiple counts, relevant conduct includes all acts or omissions by the

defendant “that were part of the same course of conduct or common scheme or

plan as the offense of conviction.” U.S.S.G § 1B1.3(a)(2). Offenses are part of a

common scheme or plan if they are “substantially connected to each other by at

least one common factor, such as common victims, common accomplices, common

purpose, or similar modus operandi.” Id., § 1B1.3 cmt. n.9(A).

      The district court did not clearly err by considering the three uncharged

transactions, which the government proved by a preponderance of the evidence


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through Lewis Sellars’ testimony, as relevant conduct in calculating the total fraud-

loss amount and increasing Trujillo’s offense level by a total of 18 for the loss

amount. The three transactions were part of the same course of conduct or common

scheme or plan as the offenses of conviction. All five transactions involved had a

common purpose of defrauding mortgage lenders and the same modus operandi,

namely the use of straw buyers to purchase properties and distribute the loan

proceeds to co-conspirators. The transactions were highly similar and all occurred

between February and May 2007. Trujillo signed three HUD-1 statements and

conducted the closings. In doing so, Trujillo failed to obtain the cash-to-close

checks from buyers as represented in those HUD-1 statements and disbursed part

of the sellers’ proceeds to third parties without informing the lenders. The record

therefore supports the court’s finding that Trujillo knew or was willfully blind to

the fact that the buyers were not providing the required cash-to-close. We therefore

affirm Trujillo’s sentence.

      Accordingly, the judgment of the district court is

      AFFIRMED.




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