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Mortgage fraud conviction upheld despite speedy trial challenge

 

Nelson Machado lived in Orlando, Florida from 2005 through 2009, then moved to Bradenton, Florida, before he moved back to his native Brazil in December of 2009, to work as a pastor in Brazil. In April of 2010, he was indicted for three counts of wire fraud. The indictment charged him with wire fraud in violation of U.S.C. section 1343 accusing him of making false representations as part of a scheme to obtain mortgage loans. The evidence showed he 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. The monthly payments for those three loans totaled $5,322.00. The properties he purchased with the loans were located in Cape Coral, Florida and valued at $509,900 with first and second mortgages totaling $490,000. The false statements he provided were that he was the manager of a tile corporation with $79,949 in personal savings. He also provided false documents regarding his employment and bank account.

He then contracted to purchase a second property and applied for a $249,900 mortgage loan. As in the first property, he provided false statements about his employment and his bank account with false documents to back it up. On top that, he failed to disclose the financial details of his first property purchase, indicating that it would be his primary home.

The jury convicted him of all three counts. At his sentencing the court asked his attorney, “Does Mr. Machado with to make a statement at this time” and his counsel responded “no.”

In his appeal Machado claimed his constitutional right to a speedy trial was violated by the five year delay from his 2010 indictment until his arrest in 2016. The court applied the four factor test established by the Supreme court: (1) the length of delay, (2) the reason for the delay, (3) the defendant’s assertion of the right, and (4) the actual prejudice to the defendant. The court found the delay was not the government’s fault because Machado left for Brazil without telling the agent, who made efforts to locate Machado. The court found the agent’s efforts were made in good faith and with due diligence. Furthermore, the court found Machado did not demonstrate actual prejudice. His arguments of prejudice were mere conjecture.

Machado’s sufficiency of the evidence argument failed because the court found that viewing the evidence in a light most favorable to the government established that he knowingly participated in a fraud scheme to obtain over $700,000 in fraudulent loans from various banking institutions by making material misrepresentations. His loan applications contained false statements about his intended use for the collateral, his assets and his liabilities and his employment status. Though the initial documents may have been completed by the mortgage brokers, the numerous documents containing the false misrepresentations application used as closing that were the identical to the initial application affirmed his role in the scheme.

The court of appeals did vacate the sentence because the sentencing judge failed to personally address Machado directly whether he wished to make a statement before the court imposed the sentence.   The court vacated the sentence to allow Machado to allocate and be resentenced.