from the United States District Court for the Middle District
of Florida D.C. Docket No. 2:10-cr-00048-SPC-CM-1
MARCUS, ANDERSON and HULL, Circuit Judges.
a jury trial, defendant Nelson Cristiano Machado appeals his
three convictions for wire fraud and his 36-month sentence.
After thorough review, and with the benefit of oral argument,
from Brazil, Machado came to the United States in 1992. He
lived in the Orlando, Florida area from 2005 to 2009. In
2009, Machado was living in Bradenton, Florida, but he moved
back to Brazil in December. Shortly after Machado left for
Brazil, in April 2010, a federal grand jury indicted him for
wire fraud. Still living in Brazil, Machado visited the
United States in January 2016 and was arrested at the airport
based on an outstanding federal indictment that was filed
back in 2010. We review that indictment and then the trial
evidence presented to the jury that convicted him.
April 7, 2010, a federal grand jury charged Machado with
three counts of wire fraud, in violation of 18 U.S.C.
§§ 1343 and 2. The indictment charged that, from
July 8, 2005 through November 3, 2005, Machado knowingly made
false representations as part of a scheme to obtain mortgage
loans. The indictment also charged that, as a result of his
false representations, Machado obtained: (1) a mortgage loan
for $343, 000 from American Brokers Conduit on September 23,
2005 (Count 1); (2) a mortgage loan for $147, 000 from
American Brokers Conduit on September 23, 2005 (Count 2); and
(3) a mortgage loan for $249, 900 from HSBC Mortgage
Corporation on November 3, 2005 (Count 3). After his January
2016 arrest, Machado pled not guilty and his trial began on
June 21, 2016.
trial evidence established that in the fall of 2005, Machado
bought three properties in Lee County, Florida, two of which
were the subject of the indictment. To facilitate the two
purchases referred to in the indictment, Machado applied for
and obtained three mortgage loans worth a total of $739, 900.
When he applied for the loans, Machado had a monthly salary
of $3, 000 and very little savings, but the monthly payments
for those three loans totaled $5, 322.94. Machado was a
pastor at a Brazilian church in Bradenton, Florida, and he
led the services in Portuguese. Machado spoke little English.
Counts 1 and 2, on August 16, 2005, Machado entered into a
contract to buy the property located at 2142 Southeast 18th
Avenue, Cape Coral, Florida 33990 for $509, 900
("Property 1"). To finance this property, Machado
applied for two mortgages from American Brokers Conduit
("ABC")-a first mortgage in the amount of $343, 000
and a second mortgage in the amount of $147, 000. Machado
used a mortgage broker in Boca Raton, Florida, Transatlantic
Mortgage Lending Group, Inc. ("Transatlantic"), and
one of its agents, Fabricio Monteiro, to help him secure
applications are usually completed by the mortgage broker.
Machado's loan applications, which contained his
information and signature, falsely stated that Property 1 in
Cape Coral would be Machado's primary residence, that he
was employed as a manager at Shalom Tile Corporation, and
that he had $74, 979 in his personal bank account. Each loan
application was supported by false documents regarding
Machado's employment and the balance of his bank account.
deciding whether to fund a mortgage loan, lenders like ABC
rely on information about the borrower's employment,
assets and liabilities, and intended use for the property.
Based on the information submitted, ABC decided to approve
Machado's loan and wired the proceeds from banks located
in New York to Cape Coral Title Insurance Agency's
("Cape Coral Title") bank located in Florida.
September 26, 2005, after the wire transfers were completed,
Machado personally went to the closing for Property 1 at Cape
Coral Title. At trial, a closing officer for Cape Coral
Title, Teri Denison, testified that the company's
standard practice was to make sure the borrower understood
the material terms of what he or she was signing. On this
particular closing, Denison put together the file but a
coworker attended the closing on her behalf. Denison could
not say whether a translator was present that day, but she
indicated that, in her experience, Cape Coral Title would not
conduct a closing if there was not someone with the borrower
to translate the documents.
closing, Machado personally signed several documents. First,
he signed loan applications identical to the earlier false
applications that had been submitted to ABC. Second, he
signed occupancy agreements and occupancy certifications,
agreeing that the Cape Coral property was to be his primary
residence. Third, he signed Truth in Lending disclosures for
the loans, which set forth the monthly payments required for
the two mortgages. The disclosure indicated that
Machado's monthly payments for the two mortgages would be
approximately $3, 502.17.
also at the closing, Machado signed HUD-1 statements for the
loans, which stated the sale price of the property, the
amount of the loans, and the earnest money deposit. The HUD-1
statement specified that the borrower was required to pay a
$2, 000 deposit. It also indicated that the borrower was
required to bring $14, 586.12 to the closing, which Machado
paid through a cashier's check that he purchased.
closing, Machado also brought a $2, 000 check made out to
Cape Coral Title. The check came from Machado's bank
account and was signed by him.
Count 3, on July 8, 2005, Machado entered into a contract to
buy the property located at 4118 Southwest Santa Barbara
Place, Cape Coral, Florida 33914 for $249, 900
("Property 2"). To finance this purchase, Machado
applied for a mortgage loan from HSBC Mortgage Corporation
("HSBC") in the amount of $249, 900. Similar to the
two applications for Property 1, the loan application for
Property 2 falsely stated that it would be Machado's
primary residence, that he was employed as an area manager at
Shalom Tile Corporation, and that he had $74, 979 in his bank
account. This loan application was supported by a fake pay
stub from Shalom Tile Corporation and a false document
verifying Machado's bank account.
application, Machado failed to disclose the two mortgages he
had already obtained on Property 1. Machado also failed to
disclose that, on October 20, 2005, he had obtained a
mortgage on another property in Fort Myers. Transatlantic and
Fabricio Monteiro assisted with securing the loan by
submitting the loan documents to HSBC.
deciding whether to fund a mortgage, HSBC relies on
information like owner occupancy, reported income, liquid
assets, and other liabilities. Based on the information
submitted, HSBC decided to approve Machado's loan and
wired the proceeds from its bank in New York to Gulf Breeze
Title Insurance Agency's ("Gulf Breeze Title")
bank in Florida.
November 3, 2005, Machado attended the closing for Property 2
at Gulf Breeze Title. Mortgage documents demonstrated that
Machado's wife, Kelma, was listed as a borrower and also
attended the closing. It is undisputed that Kelma spoke
English. A closing officer for Gulf Breeze Title, Suzanne
Scalise, handled the closing.
trial, Scalise testified that she did not remember this
particular closing but that it was her general practice to
fully explain each document to the borrower and wait for an
affirmation of understanding before proceeding further. If a
borrower did not speak English, Scalise indicated that she
would not have proceeded unless there was someone present who
property closing, Machado signed several more documents.
First, Machado signed a loan application identical to the
false applications that had been submitted to HSBC. Second,
he signed an owner occupancy affidavit, confirming that the
property was to be his primary residence. Third, Machado
signed a Truth in Lending disclosure, which set forth the
payments required by the loan. This disclosure indicated that
Machado's monthly payment for this mortgage would be
approximately $1, 820.77.
at the closing for Property 2, Machado also signed a HUD-1
statement, which specified the sale price of the property,
the amount of the loan, and the earnest money deposit. The
HUD-1 form stated that the borrower was required to pay a $2,
000 deposit. Prior to closing, Machado provided Gulf Breeze
Title with a signed $2, 000 check from Machado's bank
account as an escrow deposit.
conclusion of trial, the jury convicted Machado on all three
wire fraud counts.
sentencing, the district court directly addressed Machado,
through a Portuguese interpreter, to confirm that he had had
the opportunity to discuss the presentencing investigation
report ("PSI") with his attorney, and that his
attorney was able to answer his questions about the PSI.
Defense counsel stated a "general overall objection to
the facts" in the PSI, and the district court stated
that it would consider that objection to be a "general
denial of the allegations as contained within the case."
The district court found that Machado had a total offense
level of 19 and a criminal history category of I, which
yielded an advisory guidelines range of 30-37 months'
imprisonment. Machado's counsel proceeded to argue for a
sentence below that advisory guidelines range.
defense counsel's argument, the district court asked,
"Does Mr. Machado wish to make a statement at this
time?" Machado's counsel responded, "No, Your
Honor." The district court never addressed Machado
personally. The government then recommended a sentence of 30
months. At the close of the government's argument, the
district court asked Machado's counsel if he had anything
further to present, and counsel said no.
district court sentenced Machado to 36 months'
imprisonment as to each count, to run concurrently. The
district court asked if there were any objections, and
Machado's counsel stated, "[n]one other than those
previously articulated." Machado timely appealed his
three convictions and sentence.
RIGHT TO A SPEEDY TRIAL
appeal, Machado contends that his convictions are invalid
because he was denied his right to a speedy trial. We review
the factual background as to that issue and then the relevant
law and analysis.
Motion to Dismiss the Indictment
to trial, Machado moved to dismiss his indictment, arguing a
violation of his Fifth and Sixth Amendment right to a speedy
trial. On behalf of dismissal, Machado argued four points:
(1) the over-five-year delay from the time of his 2010
indictment until his 2016 arrest was presumptively
prejudicial; (2) the government made no effort to find him
while he was in Brazil from 2009-16; (3) Machado timely
asserted his speedy trial rights; and (4) the delay in
Machado's prosecution weakened his ability to raise