[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT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.

∗ Honor able 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.

Case: 13-10432 Date Filed: 03/31/2014 Page: 1 of 122 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 thr ee years of supervised release. On appeal, Trujillo contends that the district court committed the follo wing 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 Gov ernment 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 (1 1th Cir. 2012). Hearsay is defined
as an out

- of

- court statement admitted for the truth of the matter stated therein. F ED
. R. E VID
. 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 (11 th Cir.

Case: 13-10432 Date Filed: 03/31/2014 Page: 2 of 123 1986). Moreover , a district court’s evidentiary

- ruling error warrant s 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 (11 th Cir. 2011). In other words, “[n]o reversal will result if sufficient evidence uninfected by any error supports the v erdict, 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 (11 th 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 a rticles were not admitted for their truth and, therefore, were not hearsay. Rather, they were admitted to show the ir effect on Trujillo

— that she was scared to see that people were going to jail for participating in mortgage

- fraud schemes

. Cont rary 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

Case: 13-10432 Date Filed: 03/31/2014 Page: 3 of 124 emails and article attachments affected her substantial rights. Aside from the articles, the government introduced a mound of circumstantial eviden ce 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 In struction 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 (1 1th 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 ins truction substantially impaired the defendant’s ability to present an effective defense.” United States v. Culver , 598 F.3d 740, 751 (11 th Cir. 2010) (quotation marks and citation omitted)

. Trujillo requested the following jury instruction on a finder’s fe e: 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. Case: 13-10432 Date Filed: 03/31/2014 Page: 4 of 125 As Appellant recognizes in her brief, however, under § 475.41 of the Florida Statute s , unlicensed brokers or sales associates may not receive finder’s fees. F LA
. S TAT
. § 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 , a n instruction concerning the legality of finder’s fee s 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 o r legal defense for bank and wire fraud

. Rather, the fact that Trujillo disburs ed funds from the Marco Island p roperty 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 di scretion in refusing to give the requested instruction. 2. Deliberate

- Ignorance Instruction Case: 13-10432 Date Filed: 03/31/2014 Page: 5 of 126 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 (11 th Cir. 2003) (noting that because defendants objected to the deliberate

- ignorance instruction on differe nt 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 (11 th Cir. 2012). The burden of persuasion rests with the ap pellant 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 (11 th Cir. 2011)). Moreover, t rial 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 (11 th Cir. 2012)

.

1 At trial, Appel lant objected to the deliberate

- ignorance instruction on the grounds that deliberate ignorance was not the Gov ernment’s theory of prosecution, that t he 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 argue s 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. Ap pellant’s arguments against the deliberate ignorance instruction before this court are markedly different from the arguments made before the district court.

Case: 13-10432 Date Filed: 03/31/2014 Page: 6 of 127 Although Appellant argues that th e district court violated her due process righ ts by suggesting the deliberate

- ignorance instruction, Appellant cites no precedent for such a holding. Appellant also cites no authority for h er 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 ignora nce instruction, the district court converted the willfulness element to mere knowledge. Id. at 974

. In that cas e, we found that the deliberate

- ignorance instruction, which greatly mirrored the one given in this case, “permitted the jury to substitute cons cious 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

- i gnorance 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 t he district court gave a separate instruction on willfulness and explicitly a cknowledged 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 Appel lant contends, dilute the mens rea of the crimes

Case: 13-10432 Date Filed: 03/31/2014 Page: 7 of 128 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 T rujillo 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 (11 th Cir. 2013). To support Trujillo’s convic tion of bank fraud under 18 U.S.C. § 1344, the Government had to show that Trujillo knowingly executed or attempted to

ex ecute a scheme or artifice (1) to defraud a financial instit ution 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 ,

Case: 13-10432 Date Filed: 03/31/2014 Page: 8 of 129 647 F.3d at 1319 (11 th 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 suppor t Trujillo’s guilt of bank and wire fraud. C ontrary 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 indicate d 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 $6 9,493.14 cash

- to

- close responsibility . Rather than securing a ca shier s 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 ha ve approved the loan had he known that Diaz was not in fact providing the cash to close.

Case: 13-10432 Date Filed: 03/31/2014 Page: 9 of 1210 Additionally, Trujillo conducted closings of both the Marco Island and Miami properties. Thus, Trujillo knew that Diaz had just purchased the Marco Island Property , c laiming that it was to be his primary residence, a mere month or so before she facilitated the closing of his purchase of the Miami p roperty. Moreover, Trujillo tried to disburse money to Walk the Line an d RII Contractors in the Miami p roperty closing as w ell, which First Magnus prohibited her from doing. When First Magnus instruct ed 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 cou ld 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 ca sh at the closing. A lthough 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 Cou nty for involvement in mortgage

- fraud schemes

. The preceding facts pro vide sufficient evidence for a reasonable jury to determine that Trujillo did in fact knowingly execute a scheme or artifice to

Case: 13-10432 Date Filed: 03/31/2014 Page: 10 of 1211 defraud Chase and First Magnus of loan money and that she used the wires in doing so. W e , therefore, affirm the jury’s verdict and the district court’s denial of Trujillo’s motion for judgment of acquittal. IV. SENTENCING CALCULATION W e review the district court’s determination of the amount of loss for clear

error. United States v. Maxwell , 579 F.3d 128 2, 1305 (1 1th 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 (11 th 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 of fense 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 operand i .” 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

Case: 13-10432 Date Filed: 03/31/2014 Page: 11 of 1212 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 a nd 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 partie s 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. W e therefore affirm Trujillo’ s sentence

. Accordingly, t he judgment of the district court is AFFIRMED. Case: 13-10432 Date Filed: 03/31/2014 Page: 12 of 12