United States v. Bernadel

• Decision Date: 23 July 2012
• Docket Number: No. 10-10119,D.C. No. 2:08-cr-00256-SMM-1,10-10119
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARIO GERARD BERNADEL, Defendant - Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.MARIO GERARD BERNADEL, Defendant - Appellant.

No. 10-10119

D.C. No. 2:08-cr-00256-SMM-1

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 13, 2012

Date: July 23, 2012

NOT FOR PUBLICATION

MEMORANDUM^*

Appeal from the United States District Court

for the District of Arizona

Stephen M. McNamee, Senior District Judge, Presiding

San Francisco, California

Before: HUG, RAWLINSON, and IKUTA, Circuit Judges.

Mario G. Bernadel appeals his conviction by jury of one count of conspiracy to commit mail fraud, wire fraud, and bank fraud in violation of 18 U.S.C. §§ 1349, 1341, 1343, and 1344 (Count 1), six counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts 2-7), seven counts of wire fraud in violation of 18U.S.C. § 1343 (Counts 8-14), one count of bank fraud in violation of 18 U.S.C. § 1344 (Count 15), and four counts of money laundering in violation of 18 U.S.C. § 1957(a) (Counts 18, 19, 20, and 43). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

(1) The government presented sufficient evidence for a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find Bernadel guilty beyond a reasonable doubt of conspiracy to commit mail fraud, wire fraud, and bank fraud (Count 1). See United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc). The evidence introduced at trial supported the conclusion that Bernadel worked together with Amanda Adorno, April Lucero, and other co-defendants to recruit straw buyers with good credit scores and falsify the information on the buyers' loan applications for the agreed-upon purpose of deceiving financial institutions in order to get home loans approved, that they used the United States mails and wires to carry out this scheme to defraud, and that one or more overt acts listed in the indictment was taken in furtherance of the illegal purpose. See United States v. Alonso, 48 F.3d 1536, 1543 (9th Cir. 1995); see also United States v. Rizk, 660 F.3d 1125, 1134-35 (9th Cir. 2011); Sanford v. MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010).

There was also sufficient evidence to convict Bernadel on a Pinkerton theory of liability for the substantive counts of mail fraud (Counts 2-7), wire fraud (Counts 8-14), and bank fraud (Count 15). See Pinkerton v. United States, 328 U.S. 640, 646-48 (1946). Although the government did not present evidence directly tying Bernadel to the specific transactions that served as the basis for Counts 2-12 and 14-15,¹ there was adequate evidence to support the conclusion that these transactions were reasonably foreseeable acts committed by co-defendants Adorno and Lucero in furtherance of the same overall conspiracy, see United States v. Bingham, 653 F.3d 983, 997 (9th Cir. 2011), and that Bernadel "knew, or had reason to know, that his benefits were probably dependent upon the success of the entire operation," United States v. Fernandez, 388 F.3d 1199, 1226 (9th Cir. 2004) (quoting United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999)). Regardless whether, as Bernadel asserts, he and his co-conspirators were in some sense competing real estate investors, the evidence established that there was "an interdependent relationship between [their] fraudulent activities." United States v. Olano, 62 F.3d 1180, 1194 (9th Cir. 1995). Bernadel helped facilitate the transactions alleged in Counts 2-12 and 14-15 by, for example, (1) teachingAdorno and Lucero how to carry out their own "cash-back" deals by recruiting straw buyers with good credit scores, setting up a limited liability company (LLC), getting the target property appraised at an amount higher than the seller's asking price, and using co-defendant and escrow agent Chris Bartlemus for the closing, (2) appearing at the closing of Adorno's first cash-back deal and assuring the straw buyers Adorno had recruited that the transaction was "completely legal," (3) providing Adorno and Lucero with a joint venture agreement to use with straw buyers, (4) meeting with Adorno and Lucero to discuss potential sellers, and (5) serving as the seller in one of Adorno's cash-back deals. Further, Bernadel benefitted substantially, albeit indirectly, from Adorno's and Lucero's deals: he sold at least four of his own properties to straw buyers that Adorno and Lucero recruited, and he borrowed $90,000 from Adorno that he had reason to know she had received from the illegal scheme.

The government also presented sufficient evidence for the jury to conclude beyond a reasonable doubt that Bernadel was responsible, as either a principal or an aider and abettor, for the transactions that served as the basis for money laundering Counts 18, 19, 20, and 43. The jury could rationally conclude that Bernadel was directly responsible for the cash-back transfers alleged in Counts 19 and 20 from Security Title to, respectively, JC Development (co-defendant JohnWebber's company) and Compass Development (Bernadel's company), as these transfers involved proceeds from a fraudulently obtained loan used by straw buyer Christine Shiplett to purchase Bernadel's own personal property. There was also sufficient evidence to support the conclusion that Bernadel aided and abetted the cash-back transfer from Security Title to Lamp Light Marketing alleged in Count 43. Based on Joyce Johnson's testimony that Bernadel was present at the closing for the property involved and reassured the straw buyers that the transaction was completely legal, the jury could infer that Bernadel participated in the transaction as something he wished to bring about and sought by his assurance to make it succeed. See United States v. Hungerford, 465 F.3d 1113, 1117 (9th Cir. 2006); 18 U.S.C. § 2.² Finally, the jury could rationally conclude that Bernadel aided and abetted the cash-back transfer alleged in Count 18 from Security Title to AMB Consulting (co-defendant Marcus Branch's company) based on evidence that Bernadel was the instigator of the overall scheme and generally assisted Adorno, Lucero, and the others in its implementation. This was enough for the jury to inferthat he sought by his actions to make this transaction succeed. See Hungerford, 465 F.3d at 1117; see also United States v. Smith, 832 F.2d 1167, 1170-71 (9th Cir. 1987).

Because there was sufficient evidence to support Bernadel's conviction on all counts, the district court did not err in denying Bernadel's motion for acquittal, nor did it abuse its discretion in denying Bernadel's motion for a new trial. See Nevils, 598 F.3d at 1170; United States v. Alston, 974 F.2d 1206, 1211-12 (9th Cir. 1992).

(2) The district court did not commit plain error in failing to instruct the jury that in order to convict Bernadel of the money laundering counts, it was required to find that the transactions at issue involved profits, and not merely gross receipts, of criminal activity. See generally United States v. Santos, 553 U.S. 507 (2008). It is not "clear" or "obvious" under current law, see United States v. Olano, 507 U.S. 725, 734 (1993), that the cash-back transfers that served as the basis for the money laundering counts merged with the substantive counts of mail fraud, wire fraud, and bank fraud, such that a Santos jury instruction was required, see United States v. Van Alstyne, 584 F.3d 803, 814-16 (9th Cir. 2009). The criminal conduct charged in the substantive fraud counts (the mailings of the fraudulent loan applications to the mortgage lenders, as well as the wire transfers from themortgage lenders to Security Title) was different from the criminal conduct charged in the money laundering counts (the cash-back transfers from Security Title to the defendants after the loans had been fraudulently procured), indicating that the money laundering transactions were not "a crucial element of the 'scheme to defraud.'" Id. at 815; see also United States v. Wilkes, 662 F.3d 524, 549 (9th Cir. 2011); United States v. Ali, 620 F.3d 1062, 1072 (9th Cir. 2010). Furthermore, it would not be plain error to conclude that there is no merger problem where, as here, the money laundering counts are based on transfers of ill-gotten gains from one co-conspirator to another. See Wilkes, 662 F.3d at 549. Finally, unlike in Santos, the money laundering counts did not lead to "'a radical increase in the statutory maximum sentence' for the underlying offense," United States v. Bush, 626 F.3d 527, 538 (9th Cir. 2010) (quoting United States v. Kratt, 579 F.3d 558, 562 (6th Cir. 2009)); in fact, they did not increase Bernadel's sentence at all because the district court ordered all prison terms to run concurrently. Accordingly, the district court did not plainly err in not giving a Santos jury instruction.

(3) The district court did not abuse its discretion in relying on the purported Maricopa County property records for its loss calculation under U.S.S.G. § 2B1.1(b) because the information contained therein was corroborated by theescrow files introduced at trial, and the records therefore bore "sufficient indicia of reliability to support [their] probable accuracy." U.S.S.G. § 6A1.3(a); see also United States v. Petty, 982 F.2d 1365, 1369 (9th Cir. 1993).

(4) The district court did not commit plain error by using a preponderance-of-the-evidence standard of proof, as opposed to a clear-and-convincing-evidence standard of proof, in calculating loss under U.S.S.G. § 2B1.1(b) because the loss calculation was based on evidence presented at trial to support the conspiracy charge, and Bernadel cannot contend that he was "denied adequate procedural protection in contesting that evidence." United States v. Treadwell, 593 F.3d 990, 1001 (9th Cir. 2010).

(5) The district court did not err by increasing Bernadel's offense level by eighteen levels under U.S.S.G. § 2B1.1(b)(1)(J) based on a finding that the loss attributable to Bernadel was more than $2.5 million but less than $7 million. Although the...