[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 26, 2007

THOMAS K. KAHN

N o . 05-15687

CLERK

D . C. Docket No. 04-60204-CR-UUB

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARLOS SUAREZ,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Southern District of Florida

(J a n u a ry 26, 2007)

B efo re PRYOR and FAY Circuit Judges, and STEELE,* District Judge.

P E R CURIAM:

Ju an Carlos Suarez appeals his convictions and sentence for bank fraud, mail f ra u d , and conspiracy to commit bank and mail fraud. A jury found that Suarez p r e p a r ed fraudulent appraisals as part of an illegal land-flip scheme. The district c o u r t imposed a sentence of 41 months of imprisonment, three years of supervised r ele as e, a $700 assessment, and restitution, jointly and severally with the other m em b ers of the scheme, in the amount of $1,051,537.20. Suarez argues that the e v id e n c e was insufficient to sustain his convictions and that two evidentiary ru lin g s require a new trial. He also argues that his sentence violates the Sixth A m en d m en t, under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2 0 0 5 ), and that the amount of restitution violates the Excessive Fines Clause of th e Eighth Amendment. We affirm.

I. BACKGROUND T h e evidence presented at trial established that between June 30, 1998, and A u g u st 27, 1999, Suarez participated in a series of illegal land-flip transactions w ith Doyle Aaron and three others. Aaron used a portion of the loan proceeds fro m the second half of the flip transactions to pay for the first half of the tran sactio n s, and then kept the remainder for himself. When Aaron failed to make lo an payments, the loans went into default and his lenders lost approximately $1 m illio n . T h e FBI began investigating Aaron in April 2003. It determined that Aaron had orchestrated approximately 26 land-flip transactions and Suarez prepared a p p r a is als for at least 15 of them, including the first one. The appraisals contained in f la te d values and stated that the middleman was the owner of the property even th o u g h the public records did not disclose that individual as the owner. The m id d lem an listed as the owner was often Katja Fort, Aaron's girlfriend.

Suarez prepared many of the fraudulent appraisals while working at Excel A p p raisal, Inc. As part of the employment arrangement, Suarez was required to rem it a portion of any appraisal fees he collected to Excel. Because Suarez was a tr ain e e -a p p r a is er , any appraisal he completed had to be signed by a certified a p p r a is er . William Rutan, a certified appraiser who worked at Excel, signed seven o f the 15 appraisals Suarez prepared for Aaron.

On August 19, 2004, Suarez was indicted in the Southern District of Florida.

Count 1 charged that Suarez, Aaron, and a few others conspired to commit bank an d mail fraud by submitting false mortgage loan applications, title commitments, an d related documents to banks and lending institutions. Counts 2-4 charged bank frau d on the ground that the defendants obtained mortgage loans based on m aterially false and fraudulent documents. Counts 5-8 charged mail fraud on the g r o u n d that the defendants devised a scheme to defraud lending institutions which c o n te m p la te d the use of the mails. Finally, Count 6 charged Suarez with money lau n d erin g . The indictment alleged that Suarez's role in the charged offenses was th at, in his capacity as a trainee-appraiser, he overvalued properties and m isrep resen ted the owners of the property.

B e fo r e trial, Suarez filed a motion to dismiss the indictment for prein d ictm en t delay. He argued that appraisers are required to retain their files for o n ly five years. The alleged fraudulent activity occurred in 1998 and 1999, but S u a r ez was not indicted until 2004. Suarez argued that he had destroyed files that co u ld prove his innocence. The magistrate judge who initially considered the m o tio n stated that Suarez knew he was under investigation in 2001. The district co u rt denied the motion.

A t trial, the government introduced evidence that Suarez knowingly p rep ared the false appraisals. Katja Fort testified that Aaron often argued on the p h o n e with Suarez and told Suarez what values to put in the appraisals. The g o v ern m en t also produced faxes that Aaron had sent to Suarez in which Aaron told S u arez what to put into the appraisals. William Rutan testified that Suarez worked fro m home and would often bring a completed appraisal to him at the end of the w o rk day without the necessary supporting documents and urge Rutan to sign it b ecau se the closing was approaching. Suarez would assure Rutan the he had the d o cu m en ts at home. Because Suarez was an experienced appraiser, Rutan did not ch eck the work.

T h e government also introduced evidence of a past offense committed by S u arez. Marcelino Vega, who owned Excel, testified that Suarez failed to remit to E x cel a portion of the fee he obtained from several of the appraisals completed for A aro n . Vega ultimately terminated Suarez for failing to remit these payments, and E x cel sued Suarez to recover the money.

A t the close of the case-in-chief of the government, Suarez moved for a ju d g m en t of acquittal on all counts. He argued that the government had failed to p r o v e he knowingly placed false information in the appraisals. He maintained that A aro n and Fort had made changes to the appraisals he submitted to them. The m o tio n was granted as to the money laundering count but denied as to the rest.

In his defense, Suarez argued that he had not prepared fraudulent appraisals, b u t instead had prepared accurate appraisals that were subsequently altered by A a ro n . He introduced evidence that Aaron had obtained a copy machine and had altered some documents sent to one of the lenders. He argued that the government failed to introduce any evidence showing that he agreed to enter into a fraudulent s ch e m e . D u r in g his defense, Suarez sought to introduce a handwritten note that had b een found in Aaron's house. The note mentioned the altering of appraisals but d id not say to whom it was addressed or by whom it had been written, or whether it w as merely a "to do" list. Suarez sought to introduce the note in support of his th eo ry that he prepared accurate appraisals that Aaron then altered. The g o v e r n m e n t objected to the introduction of this note on the ground of relevance, an d the court sustained the objection on the ground that the document was hearsay.

A t the close of all the evidence Suarez again moved for a judgment of acq u ittal. Suarez argued that the government had not proved that he received the fax transmissions Aaron attempted to send to him. Suarez also disputed that the sig n atu res on the appraisals were his. The court again denied Suarez's motion.

The jury convicted Suarez on all of the remaining counts.

The district court sentenced Suarez to 41 months of imprisonment and im p o sed restitution, jointly and severally among all of the conspirators, in the full a m o u n t of the loss attributable to the conspiracy­$1,051,537.20. The court e n h a n c e d Suarez's sentence under guidelines section 2F1.1(b)(1)(L), which req u ires greater enhancements for higher monetary losses, based on a loss of $ 5 2 6 ,1 3 9 .5 5 , the amount attributable to the appraisals prepared by Suarez himself.

The district court added a 2-level enhancement for use of a special skill. Suarez o b je cte d that he was only a trainee-appraiser who had to have his work reviewed b y a certified appraiser, and the special skill enhancement should not apply. The c o u r t overruled the objection and found that serving as a trainee-appraiser required a certain level of experience and professional qualifications.

S u arez filed a post-judgment motion for acquittal or a new trial. He again c h a lle n g e d the sufficiency of the evidence supporting his convictions and argued th at the district court erred in excluding the note found in Aaron's house and in allo w in g the testimony by Vega about his past offense. That motion was denied.

II. STANDARDS OF REVIEW T h is appeal involves several standards of review. Whether sufficient e v id e n c e supports a conviction is a question of law we review de novo. United S ta te s v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). "[W]e must decide whether b ased on the evidence presented in the light most favorable to the government, a r ea so n a b le jury could have found the defendant guilty beyond a reasonable doubt." United States v. Ellington, 348 F.3d 984, 989 (11th Cir. 2003). The decision of a d istrict court not to dismiss an indictment for pre-indictment delay is reviewed for a b u s e of discretion. United States v. Foxman, 87 F.2d 1220, 1222 (11th Cir. 1 9 9 6 ) . The decisions of a district court on questions of admissibility are reviewed f o r abuse of discretion. United States v. Schlei, 122 F.3d 944, 980 (11th Cir. 1 9 9 7 ). The application by the district court of the sentencing guidelines is rev iew ed de novo, and its factual findings for clear error. United States v. D elg ad o , 56 F.3d 1357, 1363 (11th Cir. 1995). Objections to a sentence raised for th e first time on appeal are reviewed for plain error. United States v. Obasohan, 73 F .3 d 309, 310-11 (11th Cir. 1996).

III. DISCUSSION S u arez raises six arguments on appeal. All fail. We discuss each issue in tu r n .

A. There is Sufficient Evidence to Uphold Suarez's C o n victio n s on Conspiracy, Bank Fraud, and Mail Fraud.

S u arez argues the evidence was insufficient to sustain his convictions for c o n s p ir ac y, bank fraud, and mail fraud. We disagree. When we view the evidence in the light most favorable to the government, we conclude that the jury reasonably co u ld have convicted Suarez on all counts.

1. Conspiracy to Commit Bank and Mail Fraud T o sustain a conviction for conspiracy under 18U.S.C. section 371, the g o v ern m en t must prove (1) the existence of an agreement to achieve an unlawful o b jectiv e; (2) the defendant's knowing and voluntary participation in the ag reem en t; and (3) the commission of an act in furtherance of the agreement.

United States v. Cure, 804 F.2d 625, 628-30 (11th Cir. 1986). Suarez argues that th e government failed to prove that he knowingly entered into a conspiracy to co m m it bank and mail fraud. Because the essential nature of a conspiracy is s ec re cy , the existence of the agreement may be proved based on circumstantial ev id en ce. United States v. Browning, 723 F.3d 1544, 1556 (11th Cir. 1984). The ev id en ce need establish only that the defendant knew the essential objective of the co n sp iracy; it matters not that he was ignorant of its details or played only a minor r o le in the overall scheme. United States v. Walker, 720 F.2d 1527, 1528 (11 th Cir. 1 9 8 3 ). The government need provide evidence only that a defendant conspired to co m m it a single object of the conspiracy. See Griffin v. United States, 502 U.S.

4 6 , 112 S. Ct. 466 (1991).

There is sufficient circumstantial evidence to sustain the conspiracy c o n v ic tio n . Katja Fort testified that Aaron and Suarez argued about the appraisal v alu es, and the government produced faxes Aaron sent to Suarez instructing him to p u t certain values in the appraisals. Suarez contends the government never proved h e received those faxes, but Suarez does not dispute that he had a one-year b u s in e s s relationship with Aaron. The jury was entitled to find that Aaron knew h o w to get faxes to Suarez and that Saurez received the faxes. Although Suarez co n ten d s that his arguments over the phone with Aaron establish he had not e n te re d into any kind of agreement with Aaron, the jury was entitled to find that th ese disagreements reflected mutual participation in a larger plan to which the d isag reem en ts related. If Aaron had repeatedly, by phone and fax, asked Suarez to p a r tic ip a te in an illegal scheme, and Suarez had declined, it is unlikely Suarez w o u ld have needed to justify, by argument, his desire not to participate.

2. Bank and Mail Fraud S u arez argues that it was impossible for him to actually commit bank fraud b ecau se he was unable to submit an appraisal on his own. He also argues that he co u ld not have intended to commit bank fraud because he knew his work would be rev iew ed and any efforts to commit fraud would be detected by the reviewer. A d efen d an t can be found guilty of bank fraud if his conduct was designed to deceive a federally chartered or insured financial institution into releasing property with the in ten t to expose it to actual or potential loss. See United States v. Key, 76 F.3d 3 5 0 , 353 (11th Cir. 1996).

A reasonable jury could have found that Suarez committed bank fraud.

W illia m Rutan testified that Suarez often asked him to sign off on an appraisal at th e last minute, without providing the requisite supporting documentation. A jury co u ld find that this was conduct designed to overcome the limitations of Suarez's tr ain e e status, for the purpose of deceiving the banks into approving loans that w ere disproportionate to the fair market value of the properties in question. S u arez raises no specific challenges to his mail fraud convictions. He seems to argue that, because the evidence does not support his bank fraud convictions, it d o es not support the attendant mail fraud convictions. We have concluded, h o w ev er, that the evidence is sufficient to support the bank fraud convictions.

Because Suarez raises no further challenges to his mail fraud convictions, we ad d ress them no further.

B. The District Court Did Not Abuse Its Discretion When It R e fu s e d to Dismiss the Indictment for Pre-Indictment Delay.

S u a r ez argues that the indictment should have been dismissed for prein d ictm en t delay, because more than five years passed between the preparation of so m e of the appraisals and the day he was indicted. Suarez argues that, although th e statute of limitations is the primary defense against pre-indictment delay, the D u e Process Clause also protects a defendant against pre-indictment delay. This arg u m en t fails.

The Due Process Clause allows for dismissal of an indictment for prein d ic tm e n t delay when the defendant establishes that the delay was (1) the product o f a deliberate act by the government to gain a tactical advantage, and (2) caused th e defendant actual, substantial prejudice. United States v. Marion, 404 U.S. 307, 3 2 4 , 92 S. Ct. 455, 466 (1971). Suarez established neither element. There is no a lle g a tio n that the delay was deliberate, and because Suarez knew he was under in v estig atio n in 2001, there was no prejudice to Suarez.

C. The District Court Did Not Abuse Its Discretion When It Refused to Admit Into Evidence the Handwritten Note F o u n d at Aaron's Residence.

S u arez argues that the handwritten note which the district court refused to en ter into evidence on the ground of hearsay should have been admitted under the c o c o n s p ir ato r exception to the hearsay rule. See Federal Rule of Evidence 8 0 1 (d )(2 )(E ). Suarez cannot invoke this rule. The rule is one of several exceptions th at fall under the broader heading, "Admissions of a Party Opponent." The g o v ern m en t is the party opponent to Suarez, and the note is not an admission of the g o v ern m en t. Nor are we convinced that the note "bore persuasive assurances of tru stw o rth in ess" and was admissible hearsay. See Chambers v. Mississippi, 410 U .S . 284, 302, 93 S. Ct. 1038, 1049 (1972).

D. The District Court Did Not Abuse Its Discretion When I t Admitted Rule 404(b) Evidence Regarding Suarez's P r io r Theft Offense.

S u arez argues that the testimony of Marcelino Vega about Suarez's failure to rem it to Excel portions of the fees he received from Aaron was impermissible c h a ra cte r evidence under Federal Rule of Evidence 404(b) for which he received n o notice. This argument fails. Evidence falls outside the ambit of 404(b) when it is: "(1) an uncharged offense which arose out of the same transaction or series of tran sactio n s as the charged offense, (2) necessary to complete the story of the c rim e , or (3) inextricably intertwined with the evidence regarding the charged o ffen se." United States v. Baker, 432 F.3d 1189, 1205 n.9 (11th Cir. 2005) (em p h asis added). Vega testified that Suarez failed to remit a portion of the fees he r ec eiv e d for preparing appraisals for Doyle Aaron. His testimony was about "an u n ch arg ed offense which arose out of the same transaction or series of transactions as the charged offense," and was admissible without prior notice to Suarez.

E. The District Court Did Not Violate Booker When It E n h a n ced Suarez's Sentence Based on Special Skill.

S u arez argues that the special skill enhancement violated Booker because the ju ry never found, and Suarez never admitted, that he possessed a special skill, and th at, after Booker, judges may not enhance sentences based on facts not found by a ju r y or admitted by the defendant. Suarez misunderstands Booker, which held that a judge could not enhance a sentence based on judicially-found facts if the g u id e lin e s are mandatory. The district court did not apply the guidelines as m a n d a to r y when it sentenced Suarez; the court reviewed the 3553(a) factors before im p o sin g a sentence "at the low end of the advisory guideline range." F . The Amount of Restitution is Not an Excessive Fine in V io la tio n of the Eighth Amendment.

F in a lly , Suarez objects to the amount of restitution imposed by the district co u rt as excessive under the Eighth Amendment. The court imposed restitution on all of the conspirators, jointly and severally, for $1,051,537.20, the entire amount o f the loss. When calculating Suarez's sentence, the court found that Suarez was o n ly responsible for approximately half of the loss, and enhanced his sentence u n d er 2F1.1(b)(1)(L) accordingly. Suarez argues that the amount of restitution is g ro ssly disproportionate to the gravity of his offense and violates the Excessive F in es Clause. See United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028 (1 9 9 8 ). This argument fails.

When a defendant is convicted of conspiracy, the district court can hold him r es p o n s ib le for the entire amount of the loss attributable to the conspiracy. United S ta te s v. Rayborn, 957 F.2d 841, 844 (11th Cir. 1992). A district court can lik ew ise order that restitution be paid in the full amount of the loss of the co n sp iracy. See United States v. Dickerson, 370 F.3d 1330, 1339 (11th Cir. 2004).

When it enhanced Suarez's sentence under guidelines section 2F1.1(b)(1), the d istrict court chose to be lenient and enhance Suarez's sentence based only on the a m o u n t of loss attributable to the appraisals he prepared. This act of leniency does n o t allow us to conclude that the restitution was excessive.

IV . CONCLUSION S u a r ez 's convictions and sentence are A F F IR M E D .

* Honorable William H. Steele, United States District Court for the Southern District of Alabama, sitting by designation.