FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-10964

________________________

D. C. Docket No. 05-00481-CR-T-23-EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OLGA LEZCANO, 

IRENO LUIS DELGADO, 

a.k.a. Ireno Luis,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(October 17, 2008)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:
Olga Lezcano was found guilty after a jury trial of: (1) one count of

conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371; and (2) one

count of mail fraud, in violation of 18 U.S.C. §§ 1341 and 2. Ireno Luis Delgado

was found guilty after a jury trial of: (1) one count of conspiracy to commit mail

fraud, in violation of 18 U.S.C. § 371; and (2) four counts of mail fraud, in

violation of 18 U.S.C. §§ 1341 and 2. Lezcano appeals her convictions, asserting

one claim of error. Delgado appeals both his convictions and 41-month sentence, 1

asserting six issues on appeal. We address each of their issues in turn, and affirm 2

both Lezcano’s and Delgado’s convictions and sentences. 

I. OLGA LEZCANO

Lezcano asserts the district court abused its discretion when it overruled her

objection to the Government calling Bridgette Cusic as a rebuttal witness. 

 Lezcano also attempts to adopt three of Delgado’s arguments on appeal–entrapment, 1

sufficiency of the evidence, and pretrial restraint of substitute assets. All three of these

arguments are fact-specific to Delgado, however, and Lezcano’s “attempt to adopt [Delgado’s]

arguments by a passing reference ‘does not adequately develop or preserve the issue[s] with

respect to [her] own appeal.’” United States v. Castro-Lara, 970 F.2d 976, 982 (1st Cir. 1992)

(citation omitted). 

 One of Delgado’s arguments is that the district court abused its discretion in permitting 2

the pretrial restraint of substitute assets. Following the verdict, the Government notified the

district court it was not seeking to forfeit Delgado’s property, moved to dismiss the pretrial

restraining order against Delgado’s property, and sought and obtained a final forfeiture money

judgment against Delgado. Accordingly, Delgado’s contentions regarding the district court’s

pretrial restraint of his property are moot. See United States v. Ripinsky, 20 F.3d 359, 363 (9th

Cir. 1994) (concluding question of whether the government can restrain pretrial assets remains

live until the judgment of conviction is entered).

2
Lezcano contends the Government did not list Cusic on its witness list, and did not

call Cusic during its case-in-chief. She argues the Government’s failure to present

Cusic in its case-in-chief afforded the Government an improper second bite at the

apple in rebuttal, citing Faigin v. Kelly, 184 F.3d 67, 86 (1st Cir. 1999). 

The district court’s decision whether to permit rebuttal testimony is

reviewed for an abuse of discretion. See United States v. Frazier, 387 F.3d 1244,

1269 (11th Cir. 2004) (en banc). “The purpose of rebuttal evidence is ‘to explain,

repel, counteract, or disprove the evidence of the adverse party,’ and the decision

to permit rebuttal testimony is one that resides in the sound discretion of the trial

judge.” Id. (quoting United States v. Gold, 743 F.2d 800, 818 (11th Cir. 1984)).

In Faigin, the First Circuit upheld the district court’s refusal to allow a

litigant to present rebuttal testimony. The First Circuit found the district court did

not abuse its discretion because when a party knows that a contested matter is in

the case, yet fails to address it in a timely fashion, he cannot be heard to complain

the trial court refused to give him a second nibble at the cherry. Faigin, 184 F.3d

at 85. 

The Government presented testimony from Carlos Figueredo-Lopez and

Agent Gricel Sass during its case-in-chief that Figueredo-Lopez was alone in his

car when he was in an accident with Cusic on March 1, 2001. During the defense

3
case, Lezcano presented two witnesses to respond to this evidence: Mercedes

Figueredo and Janette Lopez-DeBonano. Unlike Faigin, this was not a case of the

Government presenting evidence it should have presented during its case-in-chief. 

The Government presented witnesses during its case-in-chief, and when Lezcano’s

witnesses told a different story, the Government was entitled “to explain, repel,

counteract, or disprove the evidence” of Lezcano that she was involved in the

accident. See Frazier, 387 F.3d at 1269. The district court did not abuse its

discretion in allowing Cusic’s rebuttal testimony, and we affirm Lezcano’s

conviction and sentence.

II. IRENO LUIS DELGADO

A. Entrapment

Delgado asserts the district court erred in denying his motion for judgment

of acquittal because he was able to show he was enticed to commit the offenses

through the persistent behavior of the FBI. Delgado contends that once he

presented evidence of Government inducement, the Government had the burden of

proving beyond a reasonable doubt that Delgado was predisposed to commit the

charge offenses. He asserts the Government failed to prove predisposition, and

thus no reasonable jury could have found he was predisposed to commit the

charged offenses before the Government inducement began.

4
Entrapment is a jury question, thus entrapment as a matter of law is a

sufficiency of the evidence inquiry. United States v. Brown, 43 F.3d 618, 622

(11th Cir. 1995). “When an entrapment defense is rejected by the jury, our review

is limited to deciding whether the evidence was sufficient for a reasonable jury to

conclude that the defendant was predisposed to take part in the illicit transaction.”

Id. “Review is de novo, but we must view all facts and make all inferences in

favor of the government.” Id. 

“In their zeal to enforce the law . . . Government agents may not originate a

criminal design, implant in an innocent person's mind the disposition to commit a

criminal act, and then induce commission of the crime so that the Government

may prosecute.” Jacobson v. United States, 503 U.S. 540, 548, 112 S. Ct. 1535,

1540 (1992). In Jacobson, the Supreme Court reversed the Eighth Circuit’s

holding that the defendant was not entrapped as a matter of law, finding that

although the defendant had been predisposed to break the law, the prosecution did

not prove that such predisposition was independent and not the product of the

attention the Government had directed at the defendant for 26 months. By the

time the defendant ordered child pornography, he had been the target of 26 months

of repeated mailings and communications from Government agents and fictitious

organizations. Id. at 550, 112 S. Ct. at 1541.

5
Contrary to Delgado’s assertion that “[t]he Government failed to show any

pre-investigation evidence of predisposition,” Sass testified that she believed

Delgado spoke about previous staged accidents, and throughout the course of the

investigation, Delgado told Agent Sass about staged accidents he was helping to

set up or had already participated in, separate and apart from any activity with

Trident Venture Group (TVG). Additionally, from Sass’s earliest conversations

with Delgado, Delgado hinted he would be amenable to participating in fraudulent

activity. He told Sass that (1) in Costa Rica, no one asks questions about

monetary transactions; (2) in 1998, he earned $2 million without committing a

fraud; (3) he did not care what kind of patients she referred him as long as they

had PIP insurance; and (4) Tampa was “very hot” because of recent arrests in the

area for insurance fraud. Moreover, once Sass told Delgado outright that TVG

only dealt with staged accident participants, he showed no reluctance to deal with

TVG. Instead, he continued to want to work with TVG. 

Later, Delgado introduced Sass to Jose Cardenas as a person who could help

TVG find participants for staged accidents and offered Cardenas’s yard as a place

where agents could “smash up” accident vehicles. He further introduced Sass to

people who were willing to participate in staged accidents. He also consulted with

agents regarding the types of insurance polices that staged accident participants

6
should carry, encouraging TVG to only work with those with high limits. He told

agents the amount he was willing to pay them to refer staged accident participants

to his clinics.

This evidence makes Delgado’s case very different from Jacobson, so his

comparison of his situation to that case is without merit. Jacobson, 503 U.S. at

550, 112 S. Ct. at 1541. Based on the above recited facts, the evidence was

sufficient for a reasonable jury to conclude that the defendant was predisposed to

take part in staging accidents and fraudulently collect insurance proceeds. Brown,

43 F.3d at 622. Delgado’s entrapment argument is without merit. 

B. Testimony containing conversations of co-conspirators

Delgado asserts that throughout the testimony of Agent William Jones and

Sass, the Government elicited hearsay statements from alleged co-conspirators

Jose Cardenas and Emanuel Mellon that served only to mislead the jury and

prejudice Delgado. He asserts the Government also denied him the right to crossexamine the out-of-court co-conspirators.

 “We review evidentiary rulings for an abuse of discretion.” U.S. v.

$125,938.62, 537 F.3d 1287, 1292 (11th Cir. 2008). “Co-conspirator statements

are admissible [under Fed. R. Evid. 801(d)(2)(E)] so long as the conspiracy

existed, the declarant and the defendant were involved in the conspiracy, and the

7
statement was made in furtherance of the conspiracy.” United States v. Tokars, 95

F.3d 1520, 1538 (11th Cir. 1996). “We review the district court’s factual

determinations that the conspiracy existed and that the statement was made in

furtherance of that conspiracy under the clearly erroneous standard.” Id. “[T]he

conspiracy that forms the basis for admitting a co-conspirator’s out of court

statements need not be the same conspiracy for which the defendant is charged.” 

United States v. Bowe, 221 F.3d 1183, 1193 (11th Cir. 2000). Additionally, this

Circuit applies a liberal standard in determining whether a statement was made in

furtherance of the conspiracy–the statement need not be necessary to the

conspiracy, but must further the conspiracy in some way. United States v. Turner,

871 F.2d 1574, 1581 (11th Cir. 1989).

Although neither Cardenas nor Mellon were charged in this case, there was

ample evidence that a conspiracy existed between Delgado and Cardenas and

Delgado and Mellon. Additionally, there was ample evidence the statements were

made in furtherance of the conspiracy. 

1. Cardenas

Delgado told the agents he had a friend, Cardenas, who had brought several

patients to the clinic and that Delgado would introduce the agents to Cardenas. 

Delgado told Sass he paid Cardenas for referrals and repeatedly told Sass that she

8
should talk to Cardenas if she needed people to use in future staged accidents. 

Later, Sass met Cardenas and they expected to work together in the future. In one

conversation between Sass, Cardenas, and Delgado, Cardenas agreed to help Sass

find participants for staged accidents, and Delgado volunteered Cardenas’s yard to

“smash up” vehicles. Delgado and Cardenas then began discussing an accident

they were in the process of staging for which Cardenas was finding an at-fault

driver. Delgado told Cardenas to let him know as soon as he had found a driver so

he could have the driver and participants ready. At another point, Delgado again

said he was in the process of staging another accident with Cardenas. Considering

this evidence, the district court did not clearly err in determining Delgado and

Cardenas were involved in a conspiracy. See Tokars, 95 F.3d at 1538. 

Delgado challenges Cardenas’s statement regarding setting up a yard to

damage the cars. The district court did not clearly err in determining this was a

statement made in furtherance of the conspiracy. Thus, this was an admissible coconspirator statement under Fed. R. Evid. 801(d)(2)(E). See Tokars, 95 F.3d at

1538.

2. Mellon

Sass introduced Delgado to Mellon. Mellon came to TVG, purporting to be

an organizer of staged accidents. Sass then summoned Mellon to Delgado’s

9
office, where Mellon asked Delgado how much he would be paid for each patient

he referred to Delgado. Delgado agreed to pay Mellon $800 for each patient

referred–$400 for the patient and $400 for Mellon. 

On November 15, 2000, Delgado told Sass a staged accident would occur

later that day or the next day. As predicted, a staged accident Mellon had planned

occurred later that day. Sass told Delgado that four participants had pretended to

be in an accident with a “phantom” vehicle. Mellon said he would bring the

participants to Delgado’s clinic for treatment. Delgado later told the agents he had

paid Mellon $2000 for the participants in the staged accident who had come to his

clinic and he planned to pay Mellon $2000 more. Delgado later told Sass he paid

Mellon $1000 for each patient who had participated in the November 15 accident,

but that he was having problems with the patients. Over the next several weeks,

Delgado continuously complained to Sass about the patients Mellon had sent him,

telling her that some had stopped coming for treatment even though he paid them. 

He said that although Mellon had promised to fix the situation, he could not find

Mellon. On March 22, 2001, Sass met with Mellon and Delgado to discuss the

patients Mellon had brought to Delgado. Mellon told Delgado he had been gone

for so long because he had been in Haiti and had difficulty returning to the United

States. Delgado told Mellon that Mellon owed Delgado money, but Mellon

10
instead offered to bring Delgado more patients. Delgado then told Mellon the

insurance policy limits he would like to see for patients that Mellon brought him

in the future. Considering this evidence, the district court did not clearly err in

finding that Mellon and Delgado were involved in a conspiracy. See Tokars, 95

F.3d at 1538.

The statements Delgado challenged were also made in furtherance of the

conspiracy: they concerned Mellon bringing patients to Delgado’s clinic; the price

to be paid for the patients; and the planning of a future accident. Thus, the district

court did not clearly err in finding the statements were made in furtherance of the

conspiracy and these were admissible co-conspirator statements under Fed. R.

Evid. 801(d)(2)(E). See Tokars, 95 F.3d at 1538. 

In conclusion, the district court did not abuse its discretion in admitting

these co-conspirator statements.

C. Sufficiency of evidence

Delgado attacks both his conspiracy to commit mail fraud and mail fraud

convictions, alleging there was insufficient evidence to convict him of these

offenses. “We review the sufficiency of the evidence de novo and view the

evidence in the light most favorable to the government with all reasonable

inferences and credibility choices made in favor of the government to determine

11
whether a reasonable jury could convict.” United States v. Campa, 529 F.3d 980,

992 (11th Cir. 2008). 

1. Conspiracy

As to the conspiracy count, Delgado asserts all the Government could prove

was that there were multiple conspiracies, and asserts that United States v. Coy, 19

F.3d 629, 632-35 (11th Cir. 1994), stands for the proposition there could be a

substantial prejudice to a defendant when there are so many defendants in separate

conspiracies before the jury that there is a substantial likelihood the jury can

transfer proof of one conspiracy to a defendant involved in another conspiracy. 

Thus, he asserts there was a prejudicial variance between the indictment, which

charged a single conspiracy, and the proof at trial, which he contends established

multiple conspiracies, as all of the co-conspirators were involved for different

purposes, and some of the co-conspirators never met. He asserts no reasonable

jury could have found a single conspiracy existed.

“We do not reverse convictions because a single conspiracy is charged in

the indictment while multiple conspiracies may have been revealed at trial unless

the variance is material and substantially prejudiced the defendants.” United

States v. Alred, 144 F.3d 1405, 1414 (11th Cir. 1998). “To decide whether the

jury could have found a single conspiracy, we review (1) whether a common goal

12
existed; (2) the nature of the underlying scheme; and (3) the overlap of

participants.” Id.

The evidence in this case showed a connection between the conspirators and

their activities, with the common purpose of defrauding insurance companies out

of policy proceeds. “It is irrelevant that particular conspirators may not have

known other conspirators or participated in every part of the conspiracy; all that

the government must prove to establish conspiracy liability is an agreement or

common purpose to violate the law and intentional joining in this goal by the

coconspirators.” Id. Here, that is exactly what happened–although all of the

participants may not have known each other and had different purposes–it is of no

moment because the co-conspirators were in the scheme for a common purpose, to

defraud insurance companies by staging accidents. Thus, a reasonable trier of fact

could have found a single conspiracy existed beyond a reasonable doubt. See id. 

As there is no variance between the indictment and the evidence, we need not

decide whether Delgado was substantially prejudiced by the variance. See id.

Also as to the conspiracy count, Delgado summarily argues the Government

did not prove an overt act. To prove a conspiracy under 18 U.S.C. § 371, the

evidence must show (1) an agreement among two or more persons to achieve an

unlawful objective; (2) the defendant’s knowing and voluntary participation in the

13
agreement; and (3) an overt act in furtherance of the agreement. United States v.

Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). We conclude a reasonable jury

could have found Delgado committed any of the overt acts alleged in the

indictment. Thus, the evidence was sufficient to convict Delgado of conspiracy to

commit mail fraud.

2. Mail fraud

As to the mail fraud counts, Delgado asserts there was either no proof of any

actual mailing, or there was a discrepancy as to when the items were mailed. “For

purposes of the mail fraud statute, one causes the mails to be used when one

commits an act with knowledge that the use of the mails will follow in the

ordinary course of business, or where one can reasonably foresee such use, even

though it may not actually be intended.” United States v. O’Malley, 707 F.2d

1240, 1246 (11th Cir. 1983).

The jury in this case could reasonably find the use of the mail in this case

followed the ordinary course of business or that Delgado could have reasonably

foreseen that insurance claim forms for the participants would be mailed to

insurance companies. The district court admitted into evidence numerous

healthcare claim forms that Delgado’s clinic had mailed to various insurance

companies. The records included the postmarked envelopes in which the claim

14
forms had been mailed. This evidence was sufficient to convict Delgado of mail

fraud.

D. Admitting insurance records into evidence

Delgado asserts the district court abused its discretion in admitting certain

insurance records and the summary graphs of those records because they were

irrelevant and any minimal probative value the records had was substantially

outweighed by the danger of unfair prejudice. Fed. R. Evid. 402, 403. He further

claims their admission violated Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354 (2004), because none of the records custodians ever testified, the

Government did not demonstrate they were unavailable to testify at trial, and

Delgado did not have any prior opportunity to cross-examine them.

“We review evidentiary rulings for an abuse of discretion.” U.S. v.

$125,938.62, 537 F.3d 1287, 1292 (11th Cir. 2008). The district court admitted

these records pursuant to Fed. R. Evid. 803(6) and 902(11). Rule 803(6) allows

admission of business records “if kept in the course of a regularly conducted

business activity, and if it was the regular practice of that business to make the . . .

record.” Rule 902(11) permits a party to authenticate business records with a

written declaration of a records custodian or other qualified person, as long as the

party provides notice of intention to the adverse party, and makes the record and

15
declaration available for inspection sufficiently in advance of their offer into

evidence. The Government complied with Rule 902(11) in admitting the business

records as it gave Delgado notice and gave him an opportunity to inspect the

records. Thus, Delgado’s argument these records were admitted improperly

because there was no one from the insurance company to explain the relevance is

meritless.

Delgado’s arguments that these insurance records did not have any tendency

to make any fact in issue more probable or less probable and that they were

prejudicial are meritless. Because Delgado was defrauding the insurance

company, the insurance company records are, of course, relevant and had

probative value. Thus, the probative value was not outweighed by the danger of

unfair prejudice. See Fed. R. Evid. 402, 403.

Delgado asserts the summary graphs provided by the Government were

unreliable and the district court should have required the Government to produce

the front and back of each and every check documenting the claims paid by each

company. Fed. R. Evid. 1006 provides the contents of voluminous records which

cannot conveniently be examined in court may be presented in the form of a chart,

summary, or calculation. The originals or duplicates shall be made available for

16
examination or copying by the parties at a reasonable time and place. The district

court may order they be produced in court. Fed. R. Evid. 1006.

Although the documents underlying a summary exhibit must be made

available to the defendant for examination, Rule 1006 leaves it to the district

court’s discretion whether the proponent of the summary must produce the

underlying documents in the courtroom. Here, the district court did not require the

Government to produce the underlying documents, although many of the

documents on which Agent Brynjolfsson relied were admitted into evidence in

Government Exhibits 41 through 47. Further, Delgado examined Brynjolfsson

regarding the basis for the information he included in his summaries. The district

court also instructed the jury, in regard to the summaries, that the summary charts,

and the accompanying summary testimony of Brynjolfsson had been admitted not

as proof of any fact but as a “means of more simply and quickly presenting and

explaining some other more lengthy or voluminous evidence in the case. In other

words, charts or summaries are used only as a matter of convenience. If they lack

a sound foundation elsewhere in the evidence or inaccurately summarize the facts

or figures shown elsewhere by the evidence, you should disregard them to that

extent.” Given that much of the underlying foundation for the summaries was

admitted into evidence, and the judge’s limiting instruction on the evidentiary

17
value of the summaries, it was not an abuse of discretion for the district judge to

admit the summaries.

Finally, Delgado asserts the admission of the business records without an

accompanying records custodian testifying violated Crawford. This argument is

meritless. Crawford applies only to testimonial statements, and in giving

examples of “statements that by their nature were not testimonial[,]” and, thus, not

subject to Confrontation Clause scrutiny, the Crawford Court identified business

records. Crawford, 541 U.S. at 56, 124 S. Ct. at 1378. 

In conclusion, the district court did not abuse its discretion in admitting the

business records or summaries. As this is Delgado’s last issue regarding his

convictions, we affirm his convictions. 

E. Loss amount

Delgado asserts the district court clearly erred when it determined the

amount of loss for the purposes of applying U.S.S.G. § 2F1.1(b)(1). Specifically,

he asserts the district court erred by using the amounts billed by other clinics not

charged in the conspiracy to determine the amount of loss; using the amount billed

instead of the insurance policy limits because Delgado could not have intended to

receive any amount more than what the insurance companies were legally

obligated to pay; using business records that did not have a records custodian to

18
calculate the amount of loss; using a loss figure that included bodily injury loss,

not just PIP because he intended and had the ability to inflict only PIP loss; and

including the conduct of others who were not his co-conspirators. Finally,

Delgado asserts that due to the imprecise nature of the business records and the

summation of those records, the district court should have used the actual loss as

the amount of loss.3

The district court’s calculation of the amount of loss is a factual

determination we review for clear error. United States v. Toussaint, 84 F.3d 1406,

1407 (11th Cir. 1996). When an argument is raised for the first time on appeal, it

is reviewed for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005).

Under U.S.S.G. § 2F1.1(b)(1)(K) (2000), an offense level is increased by 10

levels if the loss is more than $500,000, but not more than $800,000. Under

§ 2F1.1, the offense level is based upon the greater of the actual loss or the

intended loss. United States v. Hedges, 175 F.3d 1312, 1316 (11th Cir. 1999).

 Delgado also asserts the district court erred by including the interest paid on claims, 3

costs, and legal fees in the amount of loss. This argument is meritless as the district court did not

include these amounts in the amount of loss.

19
1. Net Gain and Co-conspirators

The calculation of a loss is not an exact science, and the district court’s

“reasonable estimate of the intended loss will be upheld.” U.S.S.G. § 2F1.1

comment. (n.9) (2000); United States v. Dabbs, 134 F.3d 1071, 1081-82 (11th Cir.

1998). “Moreover, the district court may hold all participants in a conspiracy

responsible for the losses resulting from the reasonably foreseeable acts of

co-conspirators in furtherance of the conspiracy.” Dabbs, 134 F.3d at 1082. 

Under U.S.S.G. § 1B1.3, the sentencing court should consider all relevant

conduct when calculating a defendant’s offense level. United States v. Hamaker,

455 F.3d 1316, 1336 (11th Cir. 2006). “Relevant conduct includes acts that were

part of the same course of conduct or common scheme or plan as the offense of

conviction.” United States v. Pham, 463 F.3d 1239, 1246 (11th Cir. 2006). To

determine under § 1B1.3 whether the conduct of others is attributable to the

defendant, the court must find the conduct was in furtherance of the jointly

undertaken criminal activity, and reasonably foreseeable in connection with that

criminal activity. U.S.S.G. § 1B1.2 comment. (n.2). 

Delgado’s argument the loss should be limited to his net gain from the

conspiracy is without merit. Hamaker, 455 F.3d at 1336. The losses attributed to

Delgado were from the staged accidents in which he participated. Additionally,

20
Delgado is criminally responsible for the losses his co-conspirators created. 

Dabbs, 134 F.3d at 1082. The participants in the staged accidents were Delgado’s

co-conspirators, and it was reasonably foreseeable they would make fraudulent

claims, even if they did not make them with the full aid of Delgado. See United

States v. Padron, 527 F.3d 1156 (11th Cir. 2008) (holding it was reasonably

foreseeable for participants in a staged accident to make insurance claims). Thus,

Delgado should be criminally responsible for the entire loss cause by each staged

accident in which he participated. Accordingly, the district court did not clearly

err when it did not limit the loss attributable to Delgado to his net gain from the

scheme. 

2. Intended loss

“It is not required that an intended loss be realistically possible.” United

States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir. 1997). A defendant is

criminally responsible for the loss he intends, even if he is not capable of inflicting

that amount of loss. Id.

As an initial matter, the district court did not err by using intended loss

rather than actual loss for its calculation because intended loss was the greater of

the two figures. See Hedges, 175 F.3d at 1316. As to the calculation of the

intended loss amount, it is unclear whether Delgado is arguing the economic

21
reality was that the intended loss cannot be more than the policy limits of the

insurance policies, or that his subjective intent was to defraud the insurance

companies of the policy limits and no more, or if he is making both arguments. 

Delgado did not make either of these arguments before the district court, and both

should be reviewed under the plain error standard. See Rodriguez, 398 F.3d at

1298.

Delgado’s argument his subjective intent does not matter because the

economic reality is that the insurance companies would not have paid more than

policy limits is without merit. In Wai-Keung, we held the amount of intended loss

did not need to be realistically possible and specifically rejected the language of

other circuits stating “that an intended loss cannot exceed the loss that a defendant

in fact could have occasioned if his fraud had been successful.” Wai-Keung, 115

F.3d at 877. Thus, as to the economic reality argument, the district court did not

commit an error, much less a plain error.

Delgado also appears to argue his subjective intent was to defraud the

insurance companies of no more than policy limits, and that argument is also

without merit as Delgado points to no evidence in the record showing what his

subjective intent might have been, and the district court could not have assumed it. 

Thus, Delgado has not carried his burden to show plain error.

22
3. Evidence of intended loss

We have already determined the district court did not abuse its discretion in

admitting business records during trial. Those business records were ultimately

relied upon to come to the loss amount. Even if they were inadmissible hearsay,

the district court may consider hearsay during sentencing. See United States v.

Query, 928 F.2d 383, 384-85 (11th Cir. 1991). Delgado submitted his own

calculations for the loss as evidence at the sentencing hearing, and was given the

chance to cast doubt upon the records during his voir dire of Brynjolfsson. 

Delgado has not explained why the district court should not have relied upon the

figures from the insurance companies and summarized by Brynjolfsson. Thus,

Delgado has not shown the district court clearly erred by relying on one set of

figures over another.

In conclusion of this issue, the district court did not clearly err by including

the losses created by Delgado’s co-conspirators, using the amounts billed to the

insurance companies as an estimation of the intended loss, or relying on the

figures compiled by the FBI. Thus, we affirm Delgado’s sentence. 

AFFIRMED.

23