[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 10248 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cr - 20344

- RNS

- 2

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus MADELINE RODGERS, Defendant

- Appellant.

_______________________ _ Appeal from the United States District Court for the Southern District of Florida

________________________ ( December 11, 2015 ) Before WILLIAM PRYOR , MARTIN and ANDERSON , Circuit Judges. PER CURIAM:

Case: 15-10248 Date Filed: 12/11/2015 Page: 1 of 72 Madeline Rodgers appeals her sentence of 72 months of imprisonment and
h er convictions for one count of conspir ing to commit bank and wire fraud, 18
U.S.C. § § 2, 1349, and two counts of wire fraud that affect ed a financial institution, id

. § 1343. Rodgers challenges the sufficiency of the evidence, the denial of a requested jury instruction , and the substantive reasonableness of her sentence. We affirm. Viewed in the light most favorable to the government and the jury’s verdict , the evidence prove d that Ro d gers conspired with other persons, including Joel Zaldivar, Joaquin Medina, and Carlos Fonte , to defraud financial institutions by submitting false loan applications signed by Betsy Garcia, Michael Gaughan, and Michelle Gaughan. See id. § 1349 ; United States v. Martin , 803 F.3d 581, 588

– 89 (11th Cir. 2015) . Garcia, Michael , and Michelle testified that they obtained loans and participated in sham residential sales at Rodgers’s request ; the loan applications they signed later were altered to overstate their incomes and assets and to include false employment information ; Zaldivar, who did not speak to any of the applicants, misrepresented on the application s that he complet ed the form s using information conveyed to him during telephone interviews ; and their applications contain ed letters prepared by Zaldivar falsely stating that Garcia and Michelle were employed by Medina and that Michael was employed by Lourdes Rodriguez

.

Case: 15-10248 Date Filed: 12/11/2015 Page: 2 of 73 A federal agent who examin ed real estate records, loan documents, and bank
accounts prepared a chart that he used to explain how Ro d gers and her cohorts profited from the three loan transactions. See Martin , 803 F.3d at 589. With respect to the first loan , which C itiMortgage, Inc., issued for Garcia to purchase Michelle’s residence , the agent testifie d that Michelle used the $64,002.59 she received at closing to provide Rodgers a cashier’s check f o r $63,792.59

. As to the second loan, in which Citibank, N.A., disbursed $423, 020.28 to Michael to purchase Fonte’s residence , the agent explain ed that Fonte supplied funds for a down payment by giving $45,000 to Rodgers, who gave $43,000 to Michael, who made a down payment of $41,325.25 , and that Fonte received $88,074.62 and $52,451.43 at closing , which he shared with Rodgers by giving her a check f o r $5,000 and a cashier’s check for $25,000

. With respect to the third loan, Citibank disbursed $483,616.94 to Michelle to purchase property from Fabiola Llanes , who received $475,210.28 at closing and sent a cashier’s check for $106,000 to Fonte , who wrote three checks to Rodgers for $8,000, $8,500, and $7,575
B ank records proved that Rodgers also pa i d her cohorts . Rodgers wrote a check for $1,300 to Medina before the fraudulent loan applications were submitted to the lenders . Rodgers added Garcia and Michael as s ignator ies to her bank
account and allowed Garcia to withdr a w $9,200 from the account . A nd Rodgers
gave Michelle a “gift” of $5,000

.

Case: 15-10248 Date Filed: 12/11/2015 Page: 3 of 74 Ample evidence proves that Rodgers and her co conspira tors affected financial institution s by causing them to transfer loan proceeds using inter state wire transmissions. See 18 U.S.C. § 1343. CitiMortgage and Citibank disburse d more than $900,000 through wire transmissions based on the fal s e loan applications submitted by the conspira tors

. Those disbursements “affected” Citibank, a federally insured financial institution, and its related lend ing company , C itiMortgage , because th ey “ granted mortgages

. . . based on falsified representations of [Michael’s and Michelle’s] ability to repay,

. . . [which] increased [the] risk of loss [to the institutions] through default .” See Martin , 803 F.3d at 590

. Rodgers argues that she was entitled to an acquittal because none of the government witnesses identified her as the “Madeline Rodgers” involved in the conspiracy , but this argument fails. W e have hel d repeatedly that a defendant does not have to be “ pointed out ” during trial to prove that she c ommitted the offenses charged. United States v. Fern , 696 F.2d 1269, 1276 (11th Cir. 1983) ; United
States v. Darrell , 629 F.2d 1089, 1091 (5 th Cir. 1980) ; United States v. Vahalik , 606 F.2d 99, 100 (5th Cir. 1979)

. T he i dentity of a defendant can be established by circumstantial evidence

. United States v. Cooper , 733 F.2d 91, 92 (11th Cir. 1984)

. T he jury had before it at least two kinds of evidence connecting Rodgers to the c onspiracy

. First, t he jury reasonably could have relied on Rodgers’s driver’s

Case: 15-10248 Date Filed: 12/11/2015 Page: 4 of 75 license, which the United States introduced into evidence , to identify Rodgers based on her photograph and t o compare her signature with that of her namesake

on the documents and checks generated by the conspiracy

. Second , the jury reasonably could have infer red that Garcia , who was married to Rodgers’s brother, was referring to her sister

- in

- law when testif ying about her relationship to and
tra nsa ctions with “Madeline Rodgers. ” Rodgers c ontends that we should vacate her convictions for a lack of identification as we did in Darrell , but in that case t he government failed to provide any evidence to connect the defendant to a signature on a letter and bad checks used to prosecute him for mail fraud. 629 F.2d at 1090

– 91. Unlike in Darrell , “the evidence is sufficient to permit the inference that [ Rodgers ] was the person who committed the crime [s] ” of conspiracy and wire fraud. Id. at 1091. The district court did not abuse its discretion when it denied Rodgers’s request for a jury instruction about witnesses who te stify in exchange for immunity
or to gain favor with the government

. “ A defendant has the right to have the jury instructed on a theory of defense only if the proposed instruction presents a valid defense and if there has been some evidence adduced at trial relevant to that defense.” United States v. Duperval , 777 F.3d 1 3 2 4 , 1 3 3 4 (11 th Cir. 201 5 ) ( internal quotation marks, citation, and brackets omitted )

. Rodgers requested that the district court instruct the jurors to “consider some witnesses’ testimony with

Case: 15-10248 Date Filed: 12/11/2015 Page: 5 of 76 more caution , ” like “witnesses who have been promised immunity from prosecution, or witnesses who hope to gain more favorable treatment in their own cases . . . in order to strike a good bargain with the Government , ” but Rodgers failed to introduce any evidence that the government witnesses testified in exchange for actua l or potential benefits. See United States v. McQueen , 727 F.3d 1144, 1154 (11 th Cir. 2013). And the district court gave a jury charge related to Rodgers’s theory that Garcia and the Gaughans falsely denied collaborating with the conspiracy to avoid prosecution. See Duperval , 777 F.3d at 1334

. The district
court instruct ed the jury to “decide whether you believe what each witness had to say” and whether to “believe or disbelieve any witness in whole or in part” by considering if “the witness [had] any particular reason not to tell the truth” or had “a personal interest in the outcome of the case.” This instruction apprised the jury that they could dis count testimony the y found incredible. The district court also did not abuse its discretion when it sentenced Rodgers to 72 months of imprisonment. The district court reasonably determined that a sentence within Rodgers’s advisory guideline range of 63 to 78 months of imprisonment best satisf ied th e statutory purposes of sentencing. See 18 U.S.C. § 3553(a). And the decision to impose a sentence well below Rodgers’s maximum statutory sentence of 30 years suggests that her sentence is reasonable. See United States v. Gonzalez , 550 F.3d 1319, 1324 (11t h Cir. 2008)

. Rodgers a llege s a

Case: 15-10248 Date Filed: 12/11/2015 Page: 6 of 77 disparity between h er sentence and lesser sentences imposed on Fonte and Zaldivar, but Rodgers was not similarly situated to those co conspirators. See United States v. Docampo , 573 F.3d 1091, 1101

– 02 (11 th Cir. 2010). Fonte and Zaldivar pleaded guilty and received lesser sentence s for their acceptance of responsibility. Rodgers’s sentence is reasonable.
We AFFIRM Rodgers’s convictions and sentence. Case: 15-10248 Date Filed: 12/11/2015 Page: 7 of 7