695 Fed.Appx. 453 (11th Cir. 2017), 16-10082, United States v. Del Campo

Docket Nº:16-10082, 16-10352
Citation:695 Fed.Appx. 453
Opinion Judge:BOGGS, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAUL SUAREZ DEL CAMPO, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellant Cross Appellee, v. MARSHALL KING, Defendant - Appellee Cross Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Franklin George Monsour, Jr., Amit Agarwal, Aileen Cannon, Sean Paul Cronin, Eloisa Delgado Fernandez, Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL. For RAUL SUAREZ DEL CAMPO, Defendant - Appellant: Timothy Cone, Rich...
Judge Panel:Before WILLIAM PRYOR, MARTIN, and BOGGS,[*] Circuit Judges.
Case Date:June 02, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 453

695 Fed.Appx. 453 (11th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

RAUL SUAREZ DEL CAMPO, Defendant - Appellant.

UNITED STATES OF AMERICA, Plaintiff - Appellant Cross Appellee,

v.

MARSHALL KING, Defendant - Appellee Cross Appellant

Nos. 16-10082, 16-10352

United States Court of Appeals, Eleventh Circuit

June 2, 2017

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:15-cr-20118-DPG-1.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Franklin George Monsour, Jr., Amit Agarwal, Aileen Cannon, Sean Paul Cronin, Eloisa Delgado Fernandez, Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL.

For RAUL SUAREZ DEL CAMPO, Defendant - Appellant: Timothy Cone, Richard C. Klugh, P.A., WASHINGTON, DC; Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL; Michael Terrell Davis, Benedict P. Kuehne, Law Office of Benedict P. Kuehne, PA, MIAMI, FL.

Before WILLIAM PRYOR, MARTIN, and BOGGS,[*] Circuit Judges.

OPINION

Page 454

BOGGS, Circuit Judge:

Raul Suarez Del Campo and Marshall King were convicted, following a jury trial, of three counts of bank fraud, in violation of 18 U.S.C. § 1344. Del Campo and a partner (Richard Sanchez, who is not a party to this proceeding) formed a business entity that constructed eight single-family homes but sold only five. Del Campo and Sanchez decided to purchase the three unsold homes from their business

Page 455

entity. To finance those purchases, they sought and obtained loans from JPMorgan Chase and Countrywide Bank. Del Campo's crime was overstating his income and assets in applying for those loans. King, an attorney, was the closing agent for the three sales. His crime was signing the HUD-1 statements corresponding to each sale, each of which falsely stated that the buyer had tendered a substantial cash-to-close payment at the time of closing. Del Campo and Sanchez eventually defaulted on their loan obligations, causing the lenders to lose approximately $1.38 million.

On appeal, King argues that the evidence presented at trial was insufficient to support his convictions. King and Del Campo both argue that the district court erred in declining to give a good-faith-defense jury instruction. The government appeals King's noncustodial sentence as substantively unreasonable. And King further argues that the court erred in determining that the lenders were " victims" deserving of restitution and in ruling that King was liable for the full $1.38 million in restitution rather than a smaller portion of that amount.

We address each point in turn and affirm.

I

We review de novo King's challenge to the sufficiency of the evidence supporting his conviction, viewing the evidence and drawing all reasonable inferences in the light most favorable to the government. United States v. Baldwin, 774 F.3d 711, 721 (11th Cir. 2014).

Evidence is sufficient so long as any reasonable trier of fact could find that it established the defendant's guilt beyond a reasonable doubt. United States v. Beckles, 565 F.3d 832, 840 (11th Cir. 2009). It does not matter whether the jury could reasonably have acquitted, nor whether the defendant has " put forth a reasonable hypothesis of innocence." United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).

Nor does it matter whether the evidence presented against the defendant is direct or circumstantial, United States v. Mieres-Borges, 919 F.2d 652, 656-57 (11th Cir. 1990), although " reasonable inferences, not mere speculation, must support" a conviction secured using circumstantial evidence. United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008).

Under 18 U.S.C. § 1344, one commits bank fraud by knowingly executing " a scheme or artifice (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, . . . or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises." To sustain a conviction under § 1344(1), the government must prove that " the defendant intentionally participated" in the scheme or artifice, and that the intended victim " was a federally-insured financial institution." United States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002). To sustain a conviction under § 1344(2), the government must prove " (1) that a scheme existed to obtain moneys, funds, or credit in the custody of a federally-insured bank by fraud; (2) that the defendant participated in the scheme by means of material false pretenses, representations or promises; and (3) that the defendant acted knowingly." Ibid. Intent to defraud is, therefore, an element of bank fraud under § 1344(1), but not under § 1344(2). See

Loughrin v. United States, 134 S.Ct. 2384, 2393, 189 L.Ed.2d 411 (2014). Finally, the Supreme Court has held that a conviction for federal bank fraud requires that the scheme to defraud employ not simply falsehoods, but

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material falsehoods, even though materiality is not expressly mentioned in the bank-fraud statute. See

Neder v. United States, 527 U.S. 1, 20-25, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

Here, the government presented sufficient evidence to sustain King's conviction for bank fraud under either § 1344(1) or § 1344(2). While the indictment refers to both § 1344(1) and § 1344(2), each of the three counts of...

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