USA v. Geo Geovanni

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-11044
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEO GEOVANNI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:18-cr-00155-RBD-LRH-1
____________________
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2 Opinion of the Court 19-11044
Before R OSENBAUM , LUCK , and J ULIE CARNES, Circuit Judges.
L UCK , Circuit Judge:
Geo Geovanni appeals his convictions and sentence for con-
spiracy to commit bank fraud and bank fraud. He challenges the
sufficiency of the evidence supporting his convictions, the district
court’s loss amount finding at sentencing, and the district court’s
imposition and calculation of restitution. We affirm Geovanni’s
convictions but conclude that the district court clearly erred in de-
termining the loss amount attributable to Geovanni. We therefore
vacate his sentence and remand for resentencing.
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
In June 2018, the grand jury indicted Geovanni and his girl-
friend, Elizabeth Longerbone, for conspiring to commit bank fraud
with two unindicted coconspirators, in violation of 18 U.S.C. sec-
tion 1349, and for three counts of bank fraud, in violation of 18
U.S.C. section 1344. The indictment alleged that Geovanni,
Longerbone, and their two coconspirators schemed to obtain fi-
nancing for buyers of condo units by providing “incentives,” in-
cluding down payment assistance, to the buyers, while concealing
those incentives through fraudulent loan documents and sales con-
tracts from the financial institutions that funded the mortgage
loans. Longerbone pleaded guilty. Geovanni pleaded not guilty
and went to trial.
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19-11044 Opinion of the Court 3
The government presented four witnesses at trial. Two of
these witnesses were the unindicted coconspirators—Christina
Carracedo and Jennifer Del-Giudice.1 The other two witnesses
were underwriters from each defrauded financial institution—Jose
Cadena of J.P. Morgan Chase and Timothy Lockwood of Wells
Fargo Bank.
Carracedo had been a licensed mortgage broker since 2005
and worked for a mortgage company called Platinum One Finan-
cial. Before Platinum One, Carracedo owned a mortgage company
called Silver Tree Lending with her business partner, Del-Giudice.
Del-Giudice introduced Carracedo to Geovanni and Longerbone
in 2007 or 2008. When Carracedo met Geovanni, he worked in real
estate as a licensed real estate broker and lived with Longerbone,
who worked as a hairdresser.
Geovanni owned two companies, Real Estate Park, Inc. and
Windermere Financial Group, LLC, and he and Longerbone
“worked hand in hand” and “as a team.” Geovanni and
Longerbone sold units at The Landings, a condominium develop-
ment in Altamonte Springs, Florida. When Geovanni and
Longerbone had a potential buyer for one of the units at The Land-
ings, they would send the potential buyer’s credit information to
Carracedo for prequalification. Carracedo would then send Geo-
vanni and Longerbone “a loan checklist of documents that [she]
1 Del-Giudice is also referred to as Jennifer Profenno throughout the record,
because that was her married name back in 2008.
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4 Opinion of the Court 19-11044
would need to finalize the processing of the loan file.” Carracedo
had “an arrangement” with Longerbone to split the profits Car-
racedo earned from the loan processing if Longerbone “would
bring [her] the documents that [she] needed for the loan.”
It was Carracedo’s job to communicate with the banks and
fill out the loan applications. She verified each buyer’s employ-
ment, income, and finances. Carracedo sent the HUD-1 state-
ments2 to Geovanni but did not send him the loan applications.
Although Carracedo mostly spoke with Longerbone, not Geo-
vanni, he emailed her about the incentives he was offering for mul-
tiple properties.
Carracedo was “aware” that Geovanni and Longerbone
would offer their buyers incentives to purchase units at The Land-
ings and that “the down payment was one of the incentives,” also
known as a “cash to close” incentive. Carracedo acknowledged
that incentives should be disclosed to lenders, but they weren’t dis-
closed in her transactions on the condos. Neither the HUD-1 state-
ments nor the sales contracts disclosed that there were incentives
offered to the buyers. Carracedo would “alter” bank statements
2 A HUD-1 statement is also known as a settlement statement. As one of the
underwriters explained at trial, it is “a record of . . . an accounting of where all
the money is going . . . in association with the transaction.”
See also Busby v.
JRHBW Realty, Inc., 513 F.3d 1314, 1319 n.2 (11th Cir. 2008) (“The Housing
and Urban Development–1 (‘HUD–1’) statement is a settlement form used in
closing a property sale; it details the costs and fees associated with a mortgage
loan.”).
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19-11044 Opinion of the Court 5
for Geovanni and Longerbone’s buyers, increasing their balances
“to show that the buyers had the assets for closing.”
For example, one buyer, Christopher Bradford, purchased
four units at The Landings. Longerbone emailed copies of the sales
contracts to Carracedo to prepare the loan applications. Bradford’s
sales contracts and HUD-1 statements didn’t disclose any of the in-
centives. Carracedo prepared Bradford’s loan application, which
falsely said that his down payment would come from his bank ac-
count. Carracedo also falsely inflated in the loan application the
amount of money in Bradford’s bank account.
Bradford didn’t pay his down payments with his own
money; rather, the money came from “the selling side”—i.e., Geo-
vanni’s company, Windermere. Before one of Bradford’s closings,
Carracedo sent an email to Geovanni and Longerbone asking them
to “[p]lease make sure [to] wire the money out of your account as
soon as you receive it. [Bradford] has another closing on Tuesday
and we have to have the money turned back around.” Geovanni
responded and wrote, “No problem. Just let me know when they
close.” Carracedo also sent Geovanni and Longerbone the HUD-1
forms related to Bradford’s condo purchase, which didn’t disclose
that Bradford would pay the down payment with third-party funds.
Carracedo sent that information to Geovanni and Longerbone to
“let them know the amounts that were needed to close.”
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Another buyer, April Fontaine,3 purchased multiple units at
The Landings. Longerbone emailed Carracedo telling her that
“[April] Fontaine is going ahead with all three. I will forward you
the paystubs and bank statements as I receive them.” Carracedo
prepared April’s loan application, which falsely represented that
she had $76,000 in her bank account. Carracedo altered April’s
bank statements “to show that [she] had the funds” for closing.
Carracedo altered the statements because “the bank would verify
to make sure that [the buyers] had the money that they needed to
close on the purchase” and because she knew the buyers were get-
ting incentives to cover those costs; “[o]therwise, the loans would
not close.” April ended up closing on two units. Like the Bradford
documents, April’s sales contracts and HUD-1 statements didn’t
disclose that she was receiving incentives.
Longerbone then brought a couple to Carracedo, Anthony
and Tricia Fontaine, who were related to April and also wanted to
purchase a unit at The Landings. Like the other buyers, Anthony
and Tricia’s sales contract and HUD-1 statement didn’t disclose
that they were receiving incentives. The HUD-1 said that Anthony
and Tricia would pay $34,219.40 at closing, but this wasn’t true;
Geovanni’s company, Windermere, had wired $35,000 to Tricia to
3 Because there were other buyers involved in this case with the last name of
Fontaine, to avoid confusion, we refer to April and the other Fontaines by
their first names.
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19-11044 Opinion of the Court 7
cover those costs. Anthony and Tricia’s loan application said that
they had $31,500 in savings, which was also false.
Carracedo admitted that, “[i]n working with” Geovanni and
Longerbone, she was “willing to be a participant in a situation
where banks were being provided false information about the
source of the borrower’s down payment.” In June 2008, when the
market was declining and banks were tightening their guidelines,
Geovanni emailed her suggesting that she work with other lenders
to get some loans closed. In response, Carracedo said she would
“try to squeeze out another approval out of Chase since they [were]
the only ones not giving [them] any hassle on The Landings’ ap-
praisals right now.” Geovanni later emailed Carracedo with the
name of another mortgage consultant who, he said, had been clos-
ing loans in less than three weeks.
Del-Giudice’s testimony provided further details about Ge-
ovanni’s role in the conspiracy. She met Longerbone when
Longerbone was her hairdresser, and she met Geovanni through
Longerbone. Del-Giudice was very close with Carracedo and pre-
viously had altered bank statements when they worked together in
1999 and 2000. She learned that Geovanni worked as a real estate
broker and owned two companies, Real Estate Park and Winder-
mere. Del-Giudice’s understanding was that Geovanni was part-
nered with the developer of The Landings and that he was their
real estate broker. Geovanni and Longerbone were “working to-
gether” and recruited her to find buyers and would pay her a
finder’s fee. Geovanni and Longerbone told Del-Giudice about the
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8 Opinion of the Court 19-11044
incentives for buyers and she helped distribute the money. She tes-
tified that Windermere, Geovanni’s company, would assist “in the
down payment of funding units for The Landings.” She received
the sales contracts for her buyers from Geovanni and Longerbone,
and would email both of them if she had questions. Those con-
tracts didn’t disclose any incentives.
Del-Giudice testified that Windermere, one of Geovanni’s
companies, would wire the incentive money to her ex-husband’s
tax attorney, where it would stay until the loan was ready to close.
The attorney’s office would wire the money to her, and then she
would wire the money to the buyer before closing. This was how
Bradford received his incentive money for his closings. Winder-
mere wrote the loan payoff letter for one of Bradford’s units, Del-
Giudice said, and Geovanni signed the payoff letter. Del-Giudice
explained that Windermere wired her the incentive money, but her
communications about the wire were with Longerbone. At one
point, Del-Giudice had about $160,000 in her account from Win-
dermere waiting to fund down payments.
The jury also heard from two mortgage underwriters, each
of whom explained why the concealment of the down payment in-
centives mattered to the banks. Cadena, a mortgage underwriter
for J.P. Morgan Chase, testified that sales contracts tell lenders
“what’s going on within the transaction.” In his experience, incen-
tives or contributions given to the buyer are “usually [in] an adden-
dum within the contract” and disclosed in the HUD-1 statements.
Cadena testified that the HUD-1 statement lists “cash from the
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19-11044 Opinion of the Court 9
borrower,” which is the amount that a borrower pays at closing.
The money must be the buyer’s own money because lenders re-
quire a borrower “to put up a certain risk,” or “the way banks usu-
ally call it, [to have] skin in the game.” Cadena reviewed a payoff
letter from Windermere, signed by Geovanni, for one of the condo
sales. Cadena explained that the payoff letter showed Windermere
held a lien on the property that was paid off in the sale, and this
meant Windermere was “a party to the transaction.”
Cadena explained that down payment incentives were com-
mon in 2008 but needed to be approved by the bank and were ille-
gal if they weren’t disclosed. Cadena said that the uniform loan
application form would have the most information about where a
borrower’s down payment money was coming from, while the
HUD-1 wouldn’t specify where a borrower was getting the funds
for the down payment.
Lockwood, a financial crimes manager for Wells Fargo who
worked as a mortgage underwriter for twenty years, testified that
lenders review sales contracts to know “exactly what the terms”
are for the transaction. He explained that “if there are any incen-
tives,” “concessions,” or “contributions to the closing, they should
be listed in the contract.” Lockwood also explained the significance
of the HUD-1 statement, which provides the amount of money a
borrower must bring to closing. This “cash from borrower” is im-
portant to lenders because it is the “borrower’s investment into the
property.” Lenders require borrowers to pay the down payment
with their own funds because if they get the money from a third
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10 Opinion of the Court 19-11044
party, “the borrower would not have any vested interest in the
property.”
The government rested its case and Geovanni moved for a
judgment of acquittal. He argued that the government had failed
to prove that he “willfully and knowingly conspired” because he
“didn’t submit anything to the banks,” “didn’t submit any loan ap-
plications,” “didn’t provide any . . . false documents,” and “didn’t
alter . . . any documents.” He also argued that the government had
failed to prove that he knew or suspected Carracedo was commit-
ting bank fraud.
The government responded that the emails between the co-
conspirators were enough to prove an agreement between them.
The government pointed to Geovanni’s receipt of the HUD-1 state-
ments, which, it argued, showed that he knew, or should have
known, that Carracedo wasn’t disclosing the incentives to the lend-
ers. The government also argued that because the purchase and
sales contracts came from Geovanni’s company, he knew the sales
contracts didn’t properly disclose the incentives. And the govern-
ment argued the evidence showed that Geovanni agreed to send
the buyers the money for their down payments and his company
sent them the money. The district court reserved ruling on Geo-
vanni’s motion because, although it thought that the government’s
case was “very thin,” it was “going to see” what the jury thought.
The jury found Geovanni guilty on all counts. The district
court requested briefing on Geovanni’s motion for judgment of ac-
quittal. Geovanni filed a supplemental motion for judgment of
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19-11044 Opinion of the Court 11
acquittal and for a new trial. He argued that the government relied
on “inference upon inference” and the evidence was insufficient to
prove the charges beyond a reasonable doubt.
The government responded that it proved the charged
scheme and conspiracy and that the only issue for the jury was
whether Geovanni knew about the unlawful purpose of the plan
and willfully joined in it. The government argued that the evi-
dence was sufficient for a reasonable jury to conclude that Geo-
vanni knowingly and willfully participated in the conspiracy, and
that he aided and abetted the bank fraud.
The district court denied Geovanni’s motions for a judg-
ment of acquittal and for a new trial. It concluded that the circum-
stantial evidence was enough for a jury to find that Geovanni had
knowledge that false information was being provided to the lend-
ers, and that either (1) he aided and abetted the offense, or (2) it was
reasonably foreseeable that false information would be submitted
to the banks by Carracedo. As to the substantive bank fraud
counts, the district court concluded that “the circumstantial and di-
rect evidence that the sales contracts were falsified and that they
contained information that [Geovanni] knew to be false and that
he either knew or could reasonably foresee would be submitted to
the banks to induce them to issue loan proceeds [was] sufficient”
for a reasonable jury to find him guilty.
The probation office prepared Geovanni’s presentence in-
vestigation report, finding that he received $134,336.68 in fraudu-
lently obtained proceeds and that the loss attributable to his
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12 Opinion of the Court 19-11044
criminal conduct was $736,791.01. Because this loss amount was
greater than $550,000 but less than $1,500,000, the probation office
applied a fourteen-level enhancement under section 2B1.1(b)(1)(H)
of the sentencing guidelines. The probation office also applied a
two-level enhancement under section 3B1.3 because Geovanni
used his special skill as a licensed real estate broker to commit the
offense. With an offense level of 23, and a criminal history category
of I, the probation office calculated his advisory guideline range as
46 to 57 months’ imprisonment. The probation office also calcu-
lated that Geovanni owed $736,791.01 in restitution to J.P. Morgan
Chase Bank, Fannie Mae, and Freddie Mac.
Geovanni objected to the loss amount. He moved to con-
tinue sentencing, arguing that the government’s loss amount cal-
culation differed from the numbers provided in discovery and he
needed additional discovery “to verify the accuracy of the loss fig-
ures” and to “reconcile the discrepancy.” The district court denied
the motion.
In his sentencing memorandum, Geovanni argued that the
government’s loss amount calculation was inaccurate because it
didn’t account for any payments made by the buyers towards the
loans and included condo units that were sold outside the statute
of limitations. He also objected to any amount of restitution be-
cause the jury didn’t make the factual findings necessary to support
a restitution order.
At sentencing, Geovanni argued that the government didn’t
meet its burden of proving the loss amount. The government
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19-11044 Opinion of the Court 13
presented a spreadsheet of the amount lost in each transaction and
explained the formula it used. The district court overruled Geo-
vanni’s objections, finding the government met its burden of prov-
ing by a preponderance of the evidence that the loss amount was
$736,791.01.
After finding that the two-level special skill enhancement
didn’t apply, the district court calculated a guideline range of 37 to
46 months’ imprisonment. It sentenced Geovanni to 37 months’
imprisonment, followed by three years of supervised release, and
ordered him to pay $736,791.01 in restitution.
II. DISCUSSION
Geovanni appeals the district court’s denial of his motions
for a judgment of acquittal and a new trial. And he appeals the
district court’s loss amount finding at sentencing and the amount
owed in restitution.
Sufficiency of the Evidence
Geovanni argues that the district court erred by denying his
motion for judgment of acquittal because the evidence was insuffi-
cient to convict him of conspiracy to commit bank fraud or the sub-
stantive counts of bank fraud. He concedes that the government
proved the existence of a scheme that defrauded banks through
false loan documents but maintains that he “did not participate in
that scheme” and “had no knowledge of that scheme.” As to the
conspiracy count, Geovanni argues that the government failed to
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14 Opinion of the Court 19-11044
prove that he agreed to participate in unlawful activity with an-
other person and failed to prove that he knew of the unlawful ac-
tivity and knowingly and willfully entered into it. As to the bank
fraud counts, Geovanni argues that the government failed to prove
that he knowingly provided false information to the banks. We
disagree.
“We review de novo the denial of a motion for judgment of
acquittal, viewing the evidence in the light most favorable to the
government and drawing all reasonable inferences in favor of the
jury’s verdict.”
United States v. Martin, 803 F.3d 581, 587 (11th Cir.
2015). “[T]he issue is not whether a jury reasonably could have
acquitted but whether it reasonably could have found guilt beyond
a reasonable doubt.”
United States v. Thompson, 473 F.3d 1137,
1142 (11th Cir. 2006). Where there is “any reasonable construction
of the evidence [that] would have allowed the jury to find the de-
fendant guilty beyond a reasonable doubt,” we will not disturb the
jury’s verdict.
United States v. Friske, 640 F.3d 1288, 1291 (11th
Cir. 2011) (quoting
United States v. Herrera, 931 F.2d 761, 762 (11th
Cir. 1991)).
“The test for sufficiency of evidence is identical regardless of
whether the evidence is direct or circumstantial . . . .”
United States
v. Mieres–Borges, 919 F.2d 652, 656–57 (11th Cir. 1990). But where
the government’s case is circumstantial, “reasonable inferences,
not mere speculation, must support the conviction.”
United States
v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008). “Because a jury is
free to choose among the reasonable constructions of the evidence,
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19-11044 Opinion of the Court 15
it is not necessary that the evidence exclude every reasonable hy-
pothesis of innocence or be wholly inconsistent with every conclu-
sion except that of guilt.”
United States v. Godwin, 765 F.3d 1306,
1320 (11th Cir. 2014) (quotation marks omitted).
Conspiracy to Commit Bank Fraud
“To convict [Geovanni] of conspiracy to commit bank fraud
. . . under 18 U.S.C. [section] 1349, the government had to prove
beyond a reasonable doubt that (1) two or more persons agreed to
a common and unlawful plan to commit bank . . . fraud . . . ; (2)
[Geovanni] knew of the unlawful plan; and (3) []he knowingly and
voluntarily joined the plan.”
See Martin, 803 F.3d at 588. “Because
conspiracies are secretive by nature, the jury must often rely on
inferences from the conduct of the alleged participants or from cir-
cumstantial evidence of a scheme.”
Id. (quotation marks omitted).
Knowledge of the conspiracy may be established “through
proof of surrounding circumstances such as acts committed by the
defendant which furthered the purpose of the conspiracy.”
United
States v. Gonzalez, 834 F.3d 1206, 1215 (11th Cir. 2016) (quoting
United States v. Moran, 778 F.3d 942, 961 (11th Cir. 2015)). “The
government need not prove that a defendant had knowledge of all
details of the phases of the conspiracy. [It] need only demonstrate
that the defendant knew the essential nature of the conspiracy.”
United States v. Lluesma, 45 F.3d 408, 410 (11th Cir. 1995). “Like-
wise, the government need not prove participation in a criminal
conspiracy through direct evidence, but rather may suggest the
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16 Opinion of the Court 19-11044
inference that a common purpose existed based upon circumstan-
tial evidence.”
Id.
When viewed in the light most favorable to the govern-
ment, the evidence was sufficient for a reasonable jury to find Ge-
ovanni guilty of conspiracy to commit bank fraud. The evidence
showed that Geovanni, Longerbone, Carracedo, and Del-Giudice
conspired together to obtain financing for buyers with insufficient
assets by misrepresenting to the lenders the buyers’ ability to fund
down payments.
Carracedo testified that Geovanni and Longerbone worked
“as a team” and “hand in hand.” She agreed to work with them to
obtain lending for buyers by putting together the “loan files” for
banks. She told Geovanni and Longerbone what documents she
needed and sent them a “loan checklist.” Longerbone then gath-
ered bank statements and other documents from the buyers and
sent them to Carracedo. These bank statements showed that the
buyers couldn’t fund the required down payments, which were as
much as twenty percent of the purchase price in some cases. Car-
racedo altered the bank statements, increasing the balances “to
show that the buyers had the assets for closing.”
The evidence showed that Geovanni, through his company,
Windermere, filled the gap between what the loan applications said
the buyers had in their accounts and what they actually had in their
accounts by wiring money to the buyers to pay the required down
payments. Carracedo testified that she would send the HUD-1
forms to Geovanni and Longerbone so that they would know
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19-11044 Opinion of the Court 17
exactly how much money buyers needed for closing. Those HUD-
1’s—again, sent to Geovanni by the mortgage broker preparing the
“loan files” to send to the banks—represented that the buyers were
providing the money at closing that Geovanni knew he was in fact
providing.
Del-Giudice testified that the money provided by Geovanni
was “for the purposes of securing the loan.” So, Del-Giudice testi-
fied, for her buyers, the money remained parked in her ex-hus-
band’s tax attorney’s account, only to be sent to her and then to the
buyer right before closing. If the financing fell through—if there
was no closing requiring a down payment from a buyer—the
money would go straight back to Geovanni. From this, the jury
could reasonably infer that Geovanni agreed to participate in, and
voluntarily joined, the conspiracy to conceal the source of the
down payment funds.
See Gonzalez, 834 F.3d at 1214–15 (“[T]he
existence of an agreement [may] be proved by inferences from the
conduct of the alleged participants” and “[t]he [g]overnment can
establish that a defendant voluntarily joined the conspiracy
through proof of surrounding circumstances such as acts commit-
ted by the defendant which furthered the purpose of the conspir-
acy.” (quotation marks omitted)).
The jury also learned from two experienced underwriters
that any buyer incentives should be disclosed in the sales contracts.
The Wells Fargo underwriter testified that “if there are any incen-
tives,” “concessions,” or “contributions to the closing, they should
be listed in the contract.” And the J.P. Morgan Chase underwriter
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18 Opinion of the Court 19-11044
testified that “if there were contributions, it usually is an addendum
within the contract.” But none of the sales contracts in evidence
disclosed the buyer incentives, let alone that Geovanni was funding
the entire down payment. Rather, each contract said that it was
the “entire agreement between the parties” and that the buyers
weren’t relying upon “any other monetary or financial advantage.”
Both underwriters explained why these misrepresentations
were material to the banks. The Wells Fargo underwriter testified
that “[i]t’s very important that we know exactly what the transac-
tion entails . . . [b]ecause we’re making a lending decision[,] [w]e’re
being asked to make a decision based on information that is pro-
vided in this contract . . . .” And the Chase underwriter told the
jury that banks require a buyer’s down payment on an investment
property to be their own money because “the bank is putting up
risk by lending up to a certain percentage of the value of the loan”
and the buyer “is required to put up a certain risk along with
that[,] . . . the way banks usually call it, you’ve got skin in the
game.”
There was also evidence that Geovanni wrote the fraudu-
lent sales contracts. Carracedo and Del-Giudice testified that Geo-
vanni and Longerbone sent them the sales contracts. Geovanni
sent an email to Longerbone and Del-Giudice saying: “We are
ONLY writing contracts on The Landing[s] propert[ies] . . . .” And,
tellingly, Del-Giudice emailed Geovanni—not Longerbone—when
she had a question about the contract terms and buyer incentives.
From this, the jury could reasonably infer that Geovanni knew the
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19-11044 Opinion of the Court 19
terms of the sales contracts, that he failed to disclose the buyer in-
centives he was providing, and that he had an intent to defraud.
See United States v. Grow, 977 F.3d 1310, 1325 (11th Cir. 2020) (ex-
plaining that “an intent to defraud can be inferred from efforts to
conceal the unlawful activity” (quotation marks omitted)).
And there was evidence that Geovanni sent the false sales
contracts to Carracedo. In addition to Carracedo and Del-Giudice’s
testimony that both Geovanni and Longerbone sent them the sales
contracts, the jury saw an email where Geovanni sent Carracedo a
zip file named “Bradford” under the subject line “Bradford Con-
tracts.” Carracedo responded to that email saying Del-Giudice
would have the buyer, Bradford, sign the documents. [
Id.] When
Longerbone sent the sales contracts to Carracedo, she did so from
Geovanni’s company, Real Estate Park. Again, Carracedo testified
that she told Geovanni that she, as the mortgage broker, would use
the documents Geovanni and Longerbone sent her to put together
the “loan files” for the banks. From this, the jury could reasonably
infer that Geovanni knew his false statements in the sales contracts
would make their way to the banks.
Of course, “[e]vidence that the defendant profited from a
fraud may also provide circumstantial evidence of the intent to par-
ticipate in that fraud.”
United States v. Machado, 886 F.3d 1070,
1083 (11th Cir. 2018). Here, the evidence showed that Geovanni
profited handsomely from the fraud. He, through his company,
Windermere, held a lien on the properties worth tens of thousands
of dollars that was paid off when the sales closed. Geovanni signed
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20 Opinion of the Court 19-11044
“payoff letters” directing the settlement agent to wire a portion of
the money from the banks to him.
With his money on the line, the evidence showed that Geo-
vanni kept tabs on the fraud. Geovanni monitored the progress of
the lending process, asking Carracedo in one email about the status
of Anthony and April Fontaine’s loans. In other emails, Geovanni
suggested that Carracedo use different lenders to speed up the clos-
ing process and even pointed out that some of the lenders required
less of a down payment from the buyers. Shortly after, and admit-
tedly “frustrated,” Carracedo sent an email to Geovanni saying that
he, Longerbone, and Carracedo were “all in this together” and ex-
plaining that one of the reasons loans were taking longer to close
was that these weren’t “clean loans for clients with sufficient as-
sets” and had to be “resubmit[ted] and restructure[d]” repeatedly.
In other words, Geovanni knew that his buyers had insufficient as-
sets for the down payments—which he papered over by providing
them with the money for the hefty down payments—and knew
that their lack of assets was delaying the loan application process.
Viewing the evidence as a whole and making all reasonable
inferences in favor of the government, the evidence was sufficient
for a reasonable jury to find Geovanni guilty of conspiring to com-
mit bank fraud.
See Martin, 803 F.3d at 588–89 (affirming convic-
tion for conspiracy to commit bank fraud where the defendant sold
her house to her father, but concealed the familial relationship
from the lenders, when such a disclosure was “typically required in
the sales contract,” and the defendant “gave her father the money
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19-11044 Opinion of the Court 21
he used for his $1,500 deposit,” when an underwriter testified that
the “deposit money was required to have come from” the defend-
ant’s father (quotation marks omitted)). And because there was
sufficient evidence for a reasonable jury to find Geovanni guilty of
the conspiracy, the district court did not err in denying his motion
for judgment of acquittal.
Bank Fraud
Geovanni argues there was insufficient evidence to convict
him of the substantive offense of bank fraud because he had no
knowledge of the scheme to defraud the banks, did not participate
in the scheme, and did not knowingly provide false information to
the banks. This argument also fails.
To convict Geovanni of bank fraud in violation of 18 U.S.C.
section 1344, the government had to prove beyond a reasonable
doubt that: (1) a scheme existed to obtain money or property in
the custody of a federally insured financial institution4 by fraud; (2)
he participated in the scheme by means of material false pretenses,
representations, or promises; and (3) he acted knowingly.
United
States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002). “As with
other fraud crimes, circumstantial evidence may prove a defend-
ant’s knowledge.”
Martin, 803 F.3d at 588 (quotation omitted; al-
teration adopted).
4 The parties stipulated at trial that both banks involved, Wells Fargo and J.P.
Morgan Chase, “were insured by the Federal Deposit Insurance Corporation.”
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22 Opinion of the Court 19-11044
There are two ways that a defendant can be held substan-
tively liable for the actions of others. First, under an aiding and
abetting theory, a defendant is liable if he: (1) associated himself
with a criminal venture; (2) participated in it as something he
wished to bring about; and (3) sought by his actions to make it suc-
ceed.
Rosemond v. United States, 572 U.S. 65, 76 (2014);
United
States v. Joseph, 709 F.3d 1083, 1102 (11th Cir. 2013). The evidence
must show that the defendant acted with the intent to defraud, and
the government can make this showing by “demonstrat[ing] that
the [d]efendant had the same willfulness and unlawful intent as the
actual perpetrators of the fraud.”
United States v. Williams, 390
F.3d 1319, 1324 (11th Cir. 2004).
Second, under a
Pinkerton5 theory of liability, “[e]ach party
to a continuing conspiracy may be vicariously liable for substantive
criminal offenses committed by a co[]conspirator during the course
and in furtherance of the conspiracy, notwithstanding the party’s
non-participation in the offenses or lack of knowledge thereof.”
United States v. Silvestri, 409 F.3d 1311, 1335 (11th Cir. 2005) (quo-
tation omitted; emphasis omitted). The substantive offenses must
be a “reasonably foreseeable consequence of the conspiracy.”
Id.
at 1336.
Here, there was sufficient evidence for a reasonable jury to
find Geovanni guilty of bank fraud under both theories. As to an
aiding and abetting theory of liability, Geovanni, Longerbone,
5
Pinkerton v. United States, 328 U.S. 640 (1946).
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19-11044 Opinion of the Court 23
Carracedo, and Del-Giudice engaged in a scheme to obtain financ-
ing for buyers with few assets by misrepresenting to the lenders the
buyers’ ability to fund down payments. A reasonable jury could
find beyond a reasonable doubt that Geovanni aided and abetted
his coconspirators’ submission of materially false loan applications
because: (1) Carracedo told Geovanni she would use the docu-
ments Geovanni and Longerbone gave her to put together the
“loan files”; (2) Geovanni wrote and provided the sales contracts,
which didn’t disclose the incentives he was providing; (3) Car-
racedo sent the HUD-1 statements, which also did not disclose the
incentives, to Geovanni to make sure he knew how much money
he needed to wire to the buyers for closing; (4) Geovanni agreed
to, and did, wire the money to the buyers; and (5) Geovanni prof-
ited from the scheme.
There was also sufficient evidence for a reasonable jury to
find Geovanni guilty of bank fraud under a
Pinkerton theory of li-
ability. As we explained above, there was sufficient evidence sup-
porting Geovanni’s conviction for conspiracy to commit bank
fraud because: (1) Geovanni’s company, Windemere, wired the
money to the buyers to cover the down payments they couldn’t
afford; (2) Carracedo sent Geovanni the HUD-1 forms so that Ge-
ovanni knew exactly how much money the buyers needed for clos-
ing; (3) Geovanni was aware that Carracedo was sending the mis-
leading HUD-1 forms on to the banks as part of the loan application
process; (4) there was evidence that Geovanni knew about and
wrote the fraudulent sales contracts; and (5) Geovanni profited
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24 Opinion of the Court 19-11044
from this scheme to defraud the banks through the liens his com-
pany, Windemere, held on the properties. It was therefore reason-
ably foreseeable to Geovanni, as a party to the conspiracy, that his
coconspirators would submit fraudulent loan applications in fur-
therance of the conspiracy. Thus, there was sufficient evidence for
a reasonable jury to find that Geovanni committed the substantive
counts of bank fraud.
See Silvestri, 409 F.3d at 1335–36.
Motion for New Trial
Geovanni argues that the district court abused its discretion
by denying his motion for a new trial because “the jury’s verdict
[was] contrary to the great weight of the evidence.” Because the
“decision to grant or deny a new trial motion based on the weight
of the evidence is within the sound discretion of the trial court,” an
“appellate court may reverse only if it finds the decision to be a
clear abuse of that discretion.”
United States v. Martinez, 763 F.2d
1297, 1312 (11th Cir. 1985).
In
Martinez, we explained that “[m]otions for new trials
based on weight of the evidence are not favored” and “[c]ourts are
to grant them sparingly and with caution, doing so only in those
really ‘exceptional cases.’”
Id. at 1313. A district court “may not
reweigh the evidence and set aside the verdict simply because it
feels some other result would be more reasonable.”
Id. at 1312–
1313. As such, “courts have granted new trial motions based on
weight of the evidence only where the credibility of the govern-
ment’s witnesses had been impeached and the government’s case
had been marked by uncertainties and discrepancies.”
Id. at 1313.
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19-11044 Opinion of the Court 25
Geovanni does not argue that he impeached the government’s wit-
nesses, or that the government’s case was “marked by uncertainties
and discrepancies.” Instead, he repeats his argument that the evi-
dence was insufficient for the jury to convict him. We rejected that
argument as to Geovanni’s sufficiency claim and we reject it here
too.
We conclude that Geovanni’s case isn’t one of those “excep-
tional cases” described by
Martinez. The district court didn’t
clearly abuse its discretion by denying Geovanni’s motion for a
new trial.
See id. (“[W]e are convinced that the jury’s verdict in
this case was not contrary to the weight of the evidence, and thus
that the district court should not, in any event, have granted a new
trial on this ground.”).
Loss Amount Calculation
The district court calculated that Geovanni’s guideline range
was 37 to 46 months’ imprisonment and sentenced him to the bot-
tom of that range. This guideline calculation was based on a find-
ing that the loss amount attributable to Geovanni’s criminal con-
duct was $736,791.01. Geovanni argues that the district court erred
by finding that the government had proven the loss amount by a
preponderance of the evidence. This was error, Geovanni main-
tains, because the government presented no evidence as to the loss
amount and the district court relied solely on a spreadsheet pre-
pared by the government that wasn’t in evidence and wasn’t based
on the evidence.
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26 Opinion of the Court 19-11044
The government responds that we should review the loss
amount issue for plain error because Geovanni “argues for the first
time that the spreadsheet did not constitute evidence upon which
the district court could rely in determining whether the United
States had met its burden of proving the loss amount.” But Geo-
vanni’s contention was and is that the government failed to meet
its burden of proof as to loss amount, not that spreadsheets can
never summarize evidence.
“To preserve an issue for appeal, a defendant must first pre-
sent it to the district court, raising that point in such clear and sim-
ple language that the trial court may not misunderstand it.”
United
States v. Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019) (quotation
marks omitted; alteration adopted). Geovanni preserved his chal-
lenge to the district court’s loss amount calculation by: (1) object-
ing to the “factual accuracy” of “the loss amounts” in the presen-
tence investigation report; (2) moving to continue sentencing so
that he could “verify the loss numbers [were] correct” and “recon-
cile the discrepancies”; and (3) arguing at sentencing that the gov-
ernment’s loss amount was inaccurate. Geovanni’s objection to
the accuracy of the loss amount in the presentence investigation
report by itself shifted the burden to the government to prove the
loss amount at sentencing.
See United States v. Washington, 714
F.3d 1358, 1361 (11th Cir. 2013) (“When the government seeks to
apply an enhancement under the [s]entencing [g]uidelines over a
defendant’s factual objection, it has the burden of introducing ‘suf-
ficient and reliable’ evidence to prove the necessary facts by a
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19-11044 Opinion of the Court 27
preponderance of the evidence.”). Because the issue is preserved,
we review the district court’s calculation of the loss amount at-
tributable to Geovanni for clear error.
See United States v. Cavallo,
790 F.3d 1202, 1232 (11th Cir. 2015).
“[A] district court may make factual findings regarding loss
based on trial evidence, undisputed statements in the [p]resentence
[i]nvestigation [r]eport . . . , or evidence presented at the sentencing
hearing.”
United States v. Baldwin, 774 F.3d 711, 727 (11th Cir.
2014). “[A]bsent a stipulation or agreement between the parties,
an attorney’s factual assertions at a sentencing hearing do not con-
stitute evidence that a district court can rely on.”
Washington, 714
F.3d at 1361.
Here, Geovanni disputed the loss amount in the presentence
investigation report, and the government presented no witnesses
or documents at sentencing. The district court relied only on the
spreadsheet the government made summarizing other documents.
But the government admits that only “some” of those other docu-
ments were introduced at trial—and therefore were evidence that
could support the district court’s loss amount finding. That leaves
“some” documents that weren’t introduced at trial and couldn’t
support the loss amount finding. Thus, the amounts in the govern-
ment’s spreadsheet—the only thing the district court relied on to
calculate the loss amount attributable to Geovanni—couldn’t sup-
port the district court’s factual finding as to the entire $736,791.01
loss amount.
See Baldwin, 774 F.3d at 727.
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28 Opinion of the Court 19-11044
The government argues that the district court also had its
explanation of how the government calculated the loss amounts in
its spreadsheet. But the government’s argument is not “evidence
that a district court can rely on.”
See Washington, 714 F.3d at 1361.
Absent a stipulation from the parties (and there was no stipulation
here), those assertions were not evidence.
See id.
And if the government’s factual assertions at sentencing are
not evidence, typing those same assertions into a spreadsheet does
not transform them into evidence. Relying on section 6A1.3 of the
sentencing guidelines and our decision in
United States v. Bourne,
130 F.3d 1444, 1447 (11th Cir. 1997), the government contends that
Geovanni must “show that the evidence”—its spreadsheet—
“lack[ed] ‘minimal indicia of reliability’” by “establish[ing] that the
challenged evidence is materially false.” But
Bourne applies when
the government offers evidence to support an enhancement under
the sentencing guidelines and there is a dispute about the reliability
of that evidence.
See id. at 1447–48 (dispute over FBI agent’s testi-
mony as to loss amount in a robbery where the agent “based his
testimony on his recollection of the bank auditor’s report prepared
on the day of the robbery”; while we concluded it was not “mate-
rially false or unreliable,” we remanded and “suggest[ed] that the
district court revisit the amount” because “[i]t should be a simple
matter for the special agent to obtain the auditor’s report or for the
bank auditor to testify”). Here, the government offered only its
spreadsheet to establish the loss amount—not witnesses,
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19-11044 Opinion of the Court 29
documents, or anything else. There is no dispute about the evi-
dence where there is no evidence.
We therefore conclude that the district court clearly erred
by relying on the government’s spreadsheet without supporting
evidence to calculate the loss amount and clearly erred by applying
the resulting fourteen-level sentencing enhancement. We vacate
Geovanni’s sentence and remand for a hearing, with evidence, as
to the loss amount.
See United States v. Martinez, 606 F.3d 1303,
1304 (11th Cir. 2010) (explaining that “a reviewing panel may re-
mand . . . to permit further evidence to be presented” by the gov-
ernment at a resentencing hearing “even when [the government]
ha[d] been given an opportunity but fail[ed] to do so on the first
round”);
see also United States v. Tampas, 493 F.3d 1291, 1305
(11th Cir. 2007) (remanding for resentencing to allow government
to offer evidence to prove restitution amount).
Restitution
At sentencing, the district court ordered Geovanni to pay
$736,791.01 in restitution to the defrauded financial institutions.
Geovanni argues that the imposition of restitution violated his
Sixth Amendment right to a jury trial because there was no jury
finding on the facts needed to support the restitution order. But,
as Geovanni acknowledges, this argument is foreclosed by our de-
cision in
Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir.
2006) (“We agree with the holdings of our sister circuits and adopt
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30 Opinion of the Court 19-11044
their reasoning in holding that
Apprendi[6] does not apply to a res-
titution order.”). We are bound by
Dohrmann under our prior
panel precedent rule.
See United States v. Archer, 531 F.3d 1347,
1352 (11th Cir. 2008) (explaining that “a prior panel’s holding is
binding on all subsequent panels unless and until it is overruled or
undermined to the point of abrogation by the Supreme Court or
by this court sitting
en banc”). Although Geovanni argues that
Dohrmann was wrongly decided, we could not ignore
Dohrmann
even if we agreed.
See United States v. Steele, 147 F.3d 1316, 1317–
18 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a
panel cannot overrule a prior one’s holding even though convinced
it is wrong.”).
Geovanni also argues that the district court erred in calcu-
lating the amount of restitution because the government didn’t of-
fer evidence to support it. But Geovanni didn’t object to the
presentence investigation report’s calculation of restitution, unlike
the part of the report calculating the loss amount for the sentencing
guidelines where he did object. “It is the law of this circuit that a
failure to object to allegations of fact in a [presentence investigation
report] admits those facts for sentencing purposes.”
United States
v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). Because Geovanni
admitted to the restitution amount, there was evidence supporting
the district court’s calculation of the restitution amount (unlike the
loss amount issue where Geovanni did object and there was no
6
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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19-11044 Opinion of the Court 31
evidence of loss amount). Thus, the district court didn’t err in re-
lying on Geovanni’s admission to calculate the amount he owed in
restitution.
III. CONCLUSION
We AFFIRM Geovanni’s convictions, VACATE his sen-
tence, and REMAND for a new sentence hearing.
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