799 F.3d 68 (1st Cir. 2015), 13-2343, United States v. Soto

Docket Nº:13-2343, 13-2344, 13-2350
Citation:799 F.3d 68
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. CARMEN SOTO; PEDRO SOTO; and STEVEN SOTO, Defendants, Appellants
Attorney:Matthew A. Kamholtz, with whom Feinberg & Kamholtz, was on brief, for appellant Carmen Soto. Steven A. Feldman, with whom Feldman and Feldman, was on brief, for appellant Pedro Soto. Benjamin L. Falkner, with whom Krasnoo|Klehm LLP, was on brief, for appellant Steven Soto. John M. Pellettieri, At...
Judge Panel:Before Torruella, Thompson, and Kayatta, Circuit Judges.
Case Date:August 25, 2015
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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799 F.3d 68 (1st Cir. 2015)

UNITED STATES OF AMERICA, Appellee,

v.

CARMEN SOTO; PEDRO SOTO; and STEVEN SOTO, Defendants, Appellants

Nos. 13-2343, 13-2344, 13-2350

United States Court of Appeals, First Circuit

August 25, 2015

As Amended September 1, 2015.

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APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Mark L. Wolf, U.S. District Judge.

Affirmed.

Matthew A. Kamholtz, with whom Feinberg & Kamholtz, was on brief, for appellant Carmen Soto.

Steven A. Feldman, with whom Feldman and Feldman, was on brief, for appellant Pedro Soto.

Benjamin L. Falkner, with whom Krasnoo|Klehm LLP, was on brief, for appellant Steven Soto.

John M. Pellettieri, Attorney, Appellate Section, Criminal Division, United States Department of Justice, with whom Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, John A. Capin, Assistant United States Attorney, and Brian A. Pérez-Daple, Assistant United States Attorney, were on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

OPINION

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TORRUELLA, Circuit Judge.

The Soto family -- Steven and his parents Carmen and Pedro1 -- operated a real estate business in Lynn, Massachusetts, which they used to orchestrate several

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fraudulent real estate transactions in late 2006 and early 2007. As a result of these transactions, the Sotos were each convicted of multiple counts of mail fraud; Steven and Pedro were also convicted of multiple counts of aggravated identity theft. Defendants now appeal their convictions, alleging a host of errors before the district court. In addition, Carmen challenges the portion of her sentence requiring her to pay almost $800,000 in restitution. For the reasons detailed below, we reject these challenges and affirm.

I. Background

A. The Fraudulent Transactions

The Sotos used Paradise Real Estate, the real estate brokerage firm they legitimately owned and operated, to conduct a number of fraudulent real estate transactions. Four separate transactions underlie the charges in the indictment, but they share a common theme. In each transaction, at least one member of the Soto Family used the identity of a third-party individual to consummate the " sale" of real estate. To finance the transaction, a loan would be obtained based on an application containing knowingly false information. Not surprisingly, the loans were often not repaid, resulting in the properties entering foreclosure soon after the transaction closed.

In addition to the Sotos, three individuals played important roles in the scheme -- some without their knowledge. First was Gregory Bradley. Bradley, who was a friend of Steven's, often played the role of buyer despite his being in prison from August 2006 through September 2008. To overcome this obstacle, Steven approached the second repeat player, Kim Litwin. Litwin is Bradley's aunt, and, after consulting with Bradley, she agreed to help Steven use Bradley's identity. Finally, we have Milagros Espinal, a notary public. Without Espinal's knowledge, Steven obtained a duplicate notary kit in her name and used the kit to make documents appear notarized, and thus legitimate.

With the key players identified, we can now describe the four real estate transactions at issue.

1. 242 Main Street

The first relevant transaction took place in Fall 2006 and involved 242 Main Street in Springfield, Massachusetts -- a property owned by Pedro. Steven arranged for Bradley, through Litwin, to purchase the property from Pedro for $182,000. Someone posing as Bradley -- the record is unclear as to who -- spoke to a mortgage loan officer by phone and told the loan officer that Bradley was a store manager at Drestars barbershop -- a barbershop opened by Steven in Lynn, Massachusetts. This, of course, was not true as Bradley was incarcerated at the time. The loan officer was also told that Bradley possessed $14,191 in liquid assets. This, too, was false. The $14,191 was actually the amount in Litwin's bank account; on Steven's instructions, she had recently added Bradley to the account to make it appear as though he had sufficient assets.

In November 2006, Steven and Litwin attended the closing for the property. Litwin produced a forged document drafted by Steven and " notarized" with the false Espinal notary kit to claim power of attorney to conduct the transaction on behalf of Bradley. Using the power of attorney, Litwin signed documents confirming the false information about Bradley's employment, assets, and intent to live in the property as his primary residence.

2. 55 Lawrence Street

The next transaction involved 55 Lawrence Street, a three-family home in Salem,

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Massachusetts. In the fall of 2006, Beatrice Jimma Shea, the owner of the property, asked Pedro -- who had previously been successful in helping Shea rent a unit in the home -- to help her either find a tenant for one of the units or sell the property. Pedro arranged for Shea to enter into an agreement with Bradley whereby Bradley would lease 55 Lawrence Street and have the option of purchasing the property and converting it into condominiums. Shortly thereafter, Steven, posing as Bradley, attempted to convince Shea to sell the property to him so he could turn around and sell the units as condominiums. When Shea refused, Steven forged her signature on numerous documents, thus giving Bradley power of attorney to conduct the transactions. To make the documents appear legitimate, Steven used the fake Espinal notary kit.

Using these forged documents, the Sotos " sold" each of the three units of 55 Lawrence Street to straw buyers. Pedro sold Unit 1 to Pamela Landess in January 2007 after agreeing to pay her $8,000 for her participation. At closing, Steven -- still posing as Bradley -- used the forged power of attorney to sign Bradley's name as attorney in fact for Shea, the seller.

Carmen, meanwhile, paid Medelin de la Cruz $10,000 for her assistance in purchasing Units 2 and 3 for $225,000 and $230,000, respectively. In preparation for the sales, Carmen and Steven submitted de la Cruz's loan applications which substantially overstated de la Cruz's salary, failed to disclose de la Cruz's prior mortgages, and falsely represented that de la Cruz intended to make each unit her primary residence. The loans were approved, and the closings took place in January and February of 2007. Like with Unit 1, Steven attended the Unit 2 closing as Bradley and used the forged power of attorney to sign Bradley's name as attorney in fact for Shea, the seller. As for Unit 3, a different approach was taken. Prior to closing, Steven used the fake Espinal notary kit to transfer title from Shea to Bradley. Thus, Litwin was able to attend the closing for Unit 3 as attorney in fact for Bradley, the seller.

3. 399 Orange Street

In January 2007, Steven and Pedro arranged for Bradley to purchase 399 Orange Street in Springfield, Massachusetts. On the loan application, Pedro provided his phone number as the contact number for Bradley. When the loan officer -- somewhat skeptical of the application -- called the number two days before the closing, someone purporting to be Bradley answered the phone and verified false information. At the closing itself, Steven signed Bradley's name on the loan documents containing the same false information that had been verified two days earlier. This included, for example, that Bradley earned $11,500 each month from his employment at Steven's barbershop and from his ownership of Aggressive Construction -- a fake company formed by Steven in Bradley's name. Steven also verified the accuracy of the loan application's liability section, which omitted any mention of Bradley's mortgage for 242 Main Street.

4. 21 Dudley Street

Finally, in December 2006/January 2007, Karen and Christopher Faison, the owners of 21 Dudley Street in Haverhill, Massachusetts, agreed to allow the Sotos to convert their property into three condominiums, to sell the units, and to keep any proceeds above the $365,000 they originally paid for the property. The sale of these units began as legitimate sales: Carmen's cousin and her husband were to purchase the first unit and Á ngel Rodríguez, Carmen's

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longtime family friend, intended to purchase the other two units as investments. Prior to the closings in May 2007, however, Rodríguez changed his mind when he realized that the mortgage payments would exceed the rent rolls.

Rodríguez thus informed Carmen that he did not want to go through with the purchases, but Carmen proceeded anyway. She enlisted Yé ssica Amaro -- Rodríguez's stepsister and Steven's girlfriend -- to execute a forged power of attorney and to attend the closings on Rodríguez's behalf.2 With the power of attorney in hand, Amaro completed the transactions. As a result, absent his knowledge and despite his intentions to the contrary, Rodríguez purchased both units and obtained two loans to do so.

B. The Trial Proceedings

In connection with these four fraudulent real estate transactions, the Sotos were charged in a thirteen-count indictment on September 8, 2011. Steven was charged with seven counts of mail fraud (Counts One, Four, Six, Seven, Ten, Twelve, and Thirteen) and six counts of aggravated identity theft (Counts Two, Three, Five, Eight, Nine, and Eleven); Pedro was charged with five counts of mail fraud (Counts One, Four, Six, Seven, Ten) and three counts of...

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