United States v. Souffrant
| Decision Date | 23 April 2013 |
| Docket Number | No. 10-11579,D. C. Docket No. 1:09-cr-20407-PCH-1,No. 10-11603,D. C. Docket No. 1:09-cr-20407-PCH-2,10-11579,10-11603 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. YVONNE SOUFFRANT, GARRY SOUFFRANT, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Appeals from the United States District Court
for the Southern District of Florida
Before TJOFLAT and MARTIN, Circuit Judges, and BUCKLEW,* District Judge.
This appeal involves two criminal defendants, Garry Souffrant and Yvonne Souffrant (husband and wife), who were convicted in a multi-million dollar mortgage fraud conspiracy in South Florida in 2009.1
On appeal, Garry and Yvonne challenge their convictions and sentences. After careful review of the record and the parties' briefs, and after having the benefit of oral argument, we affirm the defendants' convictions and sentences.
We recite the facts of this case in the light most favorable to the government. United States v. Augustin, 661 F.3d 1105, 1111 (11th Cir. 2011). First, we briefly describe the procedural history to help frame the facts.
In May 2009, a grand jury returned a fifty-nine count indictment against Garry and Yvonne.2 The indictment charged three counts of conspiracy (counts 1-3) and fifty-six substantive offenses (counts 4-59). Garry was named in every count, while Yvonne was named in only two conspiracy counts and eight substantive counts. Garry and Yvonne were charged in count 1 with conspiracy to:(a) commit mail fraud (18 U.S.C. § 1341); (b) commit wire fraud (18 U.S.C. § 1343); (c) make a false statement to a mortgage lender (18 U.S.C. § 1014); (d) commit bank fraud (18 U.S. § 1344); (e) steal bank funds (18 U.S.C. § 2113(b)); and (f) receive stolen bank funds (18 U.S.C. § 2113(c)), all in violation of 18 U.S.C. § 371. Garry and Yvonne were charged in count 2 with conspiracy to launder illegal proceeds in violation 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1956(h). Garry and Yvonne were also charged together in eight substantive counts: counts 9, 26, 29, 30, 31, 34, 46 and 55. Garry was charged in the remaining counts of the indictment without Yvonne: count 3, conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846; counts 4-8, 10-23, 27-28, 33, and 36-37, making false statements to a mortgage lender in violation of 18 U.S.C. § 1014; counts 24-25, 32, 35, 39-41, and 47, mail fraud in violation of 18 U.S.C. § 1341; counts 38, 42-45, bank fraud in violation of 18 U.S.C. § 1344; counts 48-53, stealing bank funds in violation of 18 U.S.C. § 2113(b); counts 54, and 56-59, receipt of stolen bank funds in violation of 18 U.S.C. § 2113(c).
On November 23, 2009, the jury returned guilty verdicts against Garry as to counts 1-2, 4-20, 22-23, 26-29, 32-33, 35-45, 49-52, and 56-59. Garry was found not guilty as to counts 3, 21, 24-25, 30-31, 34, 46-48, and 53-55. Yvonne was convicted on two counts—conspiracy to commit bank fraud (count 1) andmaking a false statement to a mortgage lender (count 29)—and acquitted on the remaining counts.3
Garry and Yvonne were sentenced together on March 31, 2009. Garry was sentenced to 240 months in prison. Yvonne was sentenced to 54 months in prison.
On August 25, 2010, the district court amended Yvonne's judgment to order restitution to the Bank of America in the stipulated amount of $87,500. After a restitution hearing on September 3, 2010, Garry was ordered to pay $4,779,830.99 in restitution to victims Bank of America, Wells Fargo Bank, N.A., Tower Mortgage, HSBC Bank USA, N.A., and Provident Funding. The government waived its right to seek forfeiture.
From 2002 to 2008, Garry and Yvonne owned and operated Progressive Real Estate of Broward, Inc. (PREB).4 During the approximately four-week trial, the government presented more than sixty witnesses in its case-in-chief, twelve rebuttal witnesses, and introduced hundreds of documents, such as Uniform Residential Loan Applications (URLAs, also called Form 1003s) and settlementstatements (also known as HUD-1s). The government's witnesses included more than half a dozen cocaine traffickers who were clients of the defendants' real estate business, PREB; title and closing agents who worked on the defendants' real estate transactions; government investigators; and a variety of other witnesses, such as individuals who acted as straw or nominee purchasers for Garry—all of whom testified about their financial transactions and relationships with the Souffrants.
By the time of the Souffrants' trial, many of the government's witnesses had already been convicted, were either awaiting sentencing in related cases, or had already been sentenced, and were cooperating with the government's prosecution against the Souffrants. For example, Tricia Ann Blair and Beverly Linton-Davis, both attorneys who had handled real estate closings for the Souffrants, pleaded guilty and testified against the defendants at trial. Blair pleaded guilty to one count of conspiracy to commit bank fraud and mail fraud, and two counts of providing false income tax returns, and was disbarred. Specifically, Blair told the jury that she had pleaded guilty Blair identified Garry and Yvonne as her co-conspirators.
Blair explained that she began working as a solo practitioner in 2004, and eventually, Garry became her primary client. She testified about several real estatetransactions in which Garry purchased real estate for himself or friends and directed Blair to title the properties in the names of a nominee or straw buyer. Further, Blair testified that Garry admitted to her that the property actually belonged to him or to his friends, who were drug dealers and did not want to hold property in their names. Garry also told Blair that he paid nominees to use their names and credit standing on mortgage applications. To this end, Garry directed Blair to prepare mortgage applications for the nominees' signatures, to falsely state that the nominees had sufficient income to qualify for the loans, and to falsely state that the nominees intended to make the property their primary residences. Rather than pay off existing mortgages at closing, Garry directed Blair to divert the proceeds of ten loans amounting to over $5 million dollars.
Defendant Garry testified for three and a half days in his own defense and denied all of the allegations against him. Defendant Neil also testified in his own defense and denied the allegations against him. Yvonne did not testify.
As noted, the jury returned mixed verdicts, acquitting Neil of all charges, convicting Garry of most charges, and acquitting Yvonne of all but two charges. After conviction, probation prepared presentence reports.
Before sentencing, the Souffrants filed written objections to their PSRs, and the government filed responses. At sentencing, the district court heard argument about the Souffrants' objections to the PSRs. With respect to the guidelines calculations, the district court overruled all of the defendants' objections except for one, the two-level breach of trust enhancement applicable to Garry. The district court calculated Garry's offense level to be 41, with a criminal history category I (324 to 405 months imprisonment). Garry was granted a downward variance and sentenced to 240 months in prison. Yvonne was also granted a downward variance and sentenced to 54 months in prison, after the district court determined her advisory guideline range was 108 to 135 months (offense level 31, criminal history category I).
The Souffrants raise a number of issues on appeal. We review de novo the following pretrial and trial questions: whether the initial joinder of charges under Federal Rule of Criminal Procedure 8(a) was proper, United States v. Hersh, 297 F.3d 1233, 1241 (11th Cir. 2002); interpretation of a rule of evidence, see United States v. Paul, 175 F.3d 906, 909 (11th Cir. 1999) ("plenary review"); challenges to jury instructions, United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002); whether an indictment has been constructively amended by jury instructions, seeUnited States v. Sanders, 668 F.3d 1298, 1309 n.9 (11th Cir. 2012); whether cumulative errors have deprived the defendant of a fair trial, see United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997); sufficiency of evidence supporting a criminal conviction, United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001); a district court's interpretation of a criminal statute, United States v. Krawczak, 331 F.3d 1302, 1305 (11th Cir. 2003); and, whether the district court misstated the law in its own instructions, United States v. Deleveaux, 205 F.3d 1292, 1296 (11th Cir. 2000).
We generally conduct abuse of discretion review of the following pretrial and trial issues: a district court's denial of a motion to sever under Federal Rule of Criminal Procedure 14, Hersh, 297 F.3d at 1241; a district court's refusal to grant a mistrial, United States v. Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007); a district court's evidentiary rulings, see United States v. Gamory, 635 F.3d 480, 492 (11th Cir. 2011) () (quotation marks omitted); admissibility of opinion testimony, United States v. Hands, 184 F.3d 1322, 1326 (11th Cir. 1999); and, admissibility of expert polygraph testimony, United States v. Piccinonna, 885 F.2d 1529, 1537 (11th Cir. 1989).
A district court's interpretation of a sentencing guideline is reviewed de novo; its findings of fact are reviewed for clear error; and its application of the sentencing guideline to the facts is reviewed de novo. United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004). The final...
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