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United States v. Machado

United States Court of Appeals, Eleventh Circuit

March 30, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
NELSON CRISTIANO MACHADO, JR., Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:10-cr-00048-SPC-CM-1

          Before MARCUS, ANDERSON and HULL, Circuit Judges.

          HULL, Circuit Judge:

          After 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, we affirm.

         I. 2010 INDICTMENT

         Originally 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.

         On 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.

         II. TRIAL EVIDENCE

         The 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.

         A. Property 1

         As to 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 these loans.

         Loan 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.

         When 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.

         On 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.[1]

         At the 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.[2]

         Fourth, 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.

          At the 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.

         B. Property 2

         As to 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.

         On this 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.

         When 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.

         On 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.

         At 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 could translate.

         At this 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.[3]

         Fourth, 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.

         At the conclusion of trial, the jury convicted Machado on all three wire fraud counts.

         III. SENTENCING HEARING

         At 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.

         After 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.

         The 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.

         IV. RIGHT TO A SPEEDY TRIAL

         On 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.

         A. Motion to Dismiss the Indictment

         Prior 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 defenses, ...


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