NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

RUBEN RODRIGUEZ, 

Defendant-Appellant.

No. 20-10060 

D.C. No. 

2:11-cr-00296-JAM-3 

MEMORANDUM*

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JAIME MAYORGA, 

Defendant-Appellant.

No. 20-10075 

D.C. No. 

2:11-cr-00296-JAM-4 

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Submitted July 9, 2021**

San Francisco, California

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUL 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: GRABER, MURGUIA, and LEE, Circuit Judges.

Ruben Rodriguez and Jaime Mayorga appeal their respective convictions for 

conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. We have 

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. Rodriguez and Mayorga first contend that insufficient evidence supports

their convictions because no rational juror could have found, based on the evidence 

at trial, that the alleged misrepresentations and false statements related to mortgage 

applications were material to lenders’ decisions. We review this claim de novo, 

United States v. Salman, 531 F.3d 1007, 1010 (9th Cir. 2008), and will reverse “only 

if viewing the evidence in the light most favorable to the government, and granting 

to the government all reasonable inferences that may be drawn from the evidence, 

no rational trier of fact could find beyond a reasonable doubt that the defendant[s] 

committed the crime,” United States v. Johnson, 297 F.3d 845, 868 (9th Cir. 2002). 

A reasonable juror could conclude that Rodriguez’s and Mayorga’s 

falsehoods—including their use of “straw buyers” to hide the true identity of loan 

applicants, their false statements about loan applicants’ jobs and income, and their 

practice of lending funds to applicants to inflate the applicants’ assets for 

“verification” by lenders—were material. Several of Rodriguez and Mayorga’s

clients testified at trial that they were initially told they did not qualify for loans, but 

after working with Rodriguez or Mayorga, they were ultimately able to obtain loans. 
3 

A reasonable juror could conclude from this evidence that Rodriguez’s and 

Mayorga’s alleged misrepresentations were material, that is, they could have made 

the difference between an applicant’s being denied a loan and an applicant’s

receiving a loan. See United States v. Lindsey, 850 F.3d 1009, 1014 (9th Cir. 2017)

(explaining that materiality is an objective standard and depends on “the intrinsic 

capabilities of the false statement itself” to influence a lender’s decision) (internal 

quotation marks omitted). 

2. Rodriguez and Mayorga next argue that the district court improperly 

excluded certain testimony from an expert witness, Professor Shaun Martin. Even 

if the district court abused its discretion in excluding expert testimony, the district 

court’s error is not reversible if it is harmless. United States v. Laurienti, 611 F.3d 

530, 547 (9th Cir. 2010). An error is harmless if “it is more probable than not that 

the error did not materially affect the verdict.” Id. (quoting United States v. Cohen, 

510 F.3d 1114, 1127 (9th Cir. 2007)). 

Here, the district court sustained objections to several questions related to 

lending standards in the subprime mortgage industry and the basis for Professor 

Martin’s knowledge of this industry. In the end, though, Professor Martin was 

allowed to make his central point key to Rodriguez and Mayorga’s theory of the 

case: that the rise of subprime mortgage lending and securitization essentially 

eliminated all lending standards, such that lenders no longer cared about the 
4 

information on loan applications. He was also allowed to testify about the reports 

and literature that formed the basis of his conclusions about the mortgage-lending 

industry. Therefore, any error was harmless. See id. at 548–49 (holding that 

exclusion of “a limited set of questions” posed to the defense expert was harmless 

where the expert “was permitted to testify to a large extent on those topics”).

3. Finally, Rodriguez and Mayorga assert that the district court erred by 

giving an improper jury instruction regarding the “intent to defraud” element of the 

wire-fraud conspiracy charge. We review de novo whether a jury instruction is 

“supported by law.” United States v. Anguiano-Morfin, 713 F.3d 1208, 1209 (9th 

Cir. 2013) (internal quotation marks omitted).

The government concedes that the jury instruction that “intent to defraud” 

requires “intent to deceive or cheat” was erroneous. We held in United States v. 

Miller, 953 F.3d 1095, 1101 (9th Cir. 2020), cert. denied, 141 S. Ct. 1085 (2021),

that the pattern jury instruction used here was erroneous because wire fraud requires 

intent “to deceive and cheat.” Therefore, the only remaining question is whether the 

error was harmless. Neder v. United States, 527 U.S. 1, 15–16 (1999); Miller, 953 

F.3d at 1103. We conclude that it was.

Here, as in Miller, the district court further instructed the jury that wire fraud 

requires that “the person knowingly participated in a scheme or plan to defraud or a 

scheme or plan to obtain money or property by means of false or fraudulent 
5 

pretenses, representations, or promises.” Given this additional instruction, and the 

overwhelming evidence at trial that Rodriguez, Mayorga, and their co-conspirators

intended to obtain something of value through their misrepresentations—that is, 

mortgage loans and associated commissions—it is highly unlikely that the jury 

concluded that Rodriguez and Mayorga intended merely to deceive lenders but not 

to cheat them by obtaining something of value. See Miller, 953 F.3d at 1103. In 

other words, we conclude that a rational jury still would have found Rodriguez and 

Mayorga guilty absent the instructional error. See Neder, 527 U.S. at 18; Miller, 953 

F.3d at 1103. 

AFFIRMED.