22-2857-cr United States v. Vidal

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of February, two thousand twenty-four.

PRESENT: ROBERT D. SACK, REENA RAGGI, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 22-2857-cr

EDUAR VIDAL, a/k/a SEALED DEFENDANT 1,

Defendant-Appellant. _____________________________________

FOR APPELLEE: T. JOSIAH PERTZ, Assistant United States Attorney (Jonathan L. Bodansky and Nathan Rehn, Assistant United States Attorneys, on the brief), for Damian Williams, United States Attorney for the Southern District of New York, New York, New York.

FOR DEFENDANT-APPELLANT: ROBERT P. PREUSS (Camille M. Abate, on the brief), Abate & Preuss, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New

York (Denise Cote, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment, entered on October 21, 2022, is AFFIRMED.

Defendant-Appellant Eduar Vidal appeals from a judgment of conviction entered after a

jury trial at which he was found guilty of bank fraud, in violation of

, and

conspiracy to commit bank fraud, in violation of

and 1349. Vidal was sentenced

principally to forty-eight months’ imprisonment, followed by three years of supervised release. On

appeal, Vidal argues that: (1) the trial evidence was insufficient to support his convictions; (2) the

district court committed reversible error in admitting evidence of Vidal’s alleged involvement in

fraudulent credit card transactions; and (3) the district court committed reversible error in allowing

the government to introduce certain hearsay statements as coconspirator statements pursuant to

Federal Rule of Evidence 801(d)(2)(E) without holding a hearing under Federal Rule of Evidence

104(a). We assume the parties’ familiarity with the underlying facts, procedural history, and issues

on appeal, which we reference only as necessary to explain our decision to affirm.

I. Sufficiency of the Evidence

Vidal challenges the sufficiency of the evidence adduced at trial, arguing that the

government failed to prove that he made, or was aware of, any material misrepresentation to a

financial institution. We review a challenge to the sufficiency of the evidence de novo. United

States v. Requena,

(2d Cir. 2020). A defendant who makes such a challenge “bears

a heavy burden.” United States v. Connolly,

(2d Cir. 2022). In reviewing

whether a conviction is supported by sufficient evidence, “we are required to draw all permissible

2 inferences in favor of the government and resolve all issues of credibility in favor of the jury’s

verdict.” United States v. Willis,

(2d Cir. 2021). We must affirm the conviction

“if any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” See United States v. Silver,

(2d Cir. 2017) (internal quotation

marks and citation omitted) (emphasis in original).

“[B]ank fraud is defined as the knowing execution of ‘a scheme or artifice—(1) to defraud

a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other

property owned by, or under the custody or control of, a financial institution, by means of false or

fraudulent pretenses, representations, or promises.’” United States v. Calderon,

(2d Cir. 2019) (quoting

). “[P]roof of the violation of either subsection is

sufficient to support a conviction.” United States v. Crisci,

(2d Cir. 2001).

Both subsections require the government to “prove that the defendant in question engaged in a

deceptive course of conduct by making material misrepresentations.” Calderon,

(emphasis in original). Although Section 1344(1) requires the intent to defraud a financial

institution, Section 1344(2) only requires the intent to obtain bank property. Loughrin v. United

States,

, 355–57 (2014); accord United States v. Bouchard,

(2d Cir.

2016). Accordingly, Section 1344(2) covers situations in which a defendant, intending to obtain

bank property, makes a false representation to a third party, rather than the bank itself. See, e.g.,

Shaw v. United States,

(2016) (“[Section 1344(2)] applies to a circumstance in

which a shopper makes a false statement to a department store cashier in order to pay for goods

with money ‘under the custody or control of a financial institution’. . . .”); Loughrin, 573 U.S. at

363 n.6 (“[W]hen the defendant has the requisite intent to acquire bank property, his presentation

3 of a forged or altered check to a third party satisfies § 1344(2)’s ‘means’ requirement.”).

After reviewing the trial record, we find Vidal’s challenge to the sufficiency of the evidence

unpersuasive. Drawing all permissible inferences and resolving all issues of credibility in favor of

the government, the evidence at trial established that Vidal endorsed and cashed numerous auto

loan checks, falsely representing that funds withdrawn from the lending banks would be used to

finance the purchase of used cars from his dealership. In particular, the documentary evidence

showed that Vidal endorsed and cashed eighteen checks, worth more than $630,000, that various

lenders had made out to his used car dealership, E&V Auto Sales. Each check contained a

“restrictive endorsement,” whereby Vidal, by endorsing the check, falsely represented that he

would: (1) use the funds as payment for a particular borrower’s purchase of a particular vehicle,

identified by make, model, and vehicle identification number; (2) register that vehicle in the

borrower’s name; and (3) place a first-priority lien on the vehicle in the lender’s name. 1 Vidal also

falsely represented that he would return the check or its proceeds to the lender if he failed to

complete the described transaction.

The fraudulent nature of the scheme was apparent based upon, inter alia, the fact that the

eighteen checks endorsed and cashed by Vidal identified, in total, no more than five vehicles as

objects of the sale. For example, in March 2016, Vidal endorsed and cashed two checks—totaling

$39,855—for the same 2016 Honda Accord, which he never actually sold. Both checks identified

Ana Batista as the borrower. At trial, Batista testified that she never intended to purchase a car

1 Certain checks also included in the “restrictive endorsement” that the endorser certified that no other financing was involved in the transaction involving a particular vehicle.

4 from Vidal, and that the auto loans were part of a scheme to get cash. She explained that she had

hired Carlos Felix, the owner of Best Credit USA, to help her improve her credit, and that, “even

though [she] did not want a car,” Felix suggested taking out auto loans because “they could turn the

loan into cash.” App’x at 478. Batista met Felix and Vidal at E&V Auto Sales “to sign a

document for the sale of a vehicle to get the process started” so that Vidal “could turn the car loan

money into cash.” App’x at 484. At that meeting, Batista told Vidal that she “did not intend to

buy a car.” App’x at 486. She testified that Vidal subsequently cashed the checks for two auto

loans she had received, withholding a portion of the cash for Felix and himself. Vidal also

endorsed and cashed three checks—totaling $100,893.75—for the same 2014 Jeep Grand

Cherokee. All three checks identified Gloria Duarte as the borrower. At trial, Duarte likewise

testified that, even though she had no intention of buying a car, Felix applied for auto loans on her

behalf and gave the checks to Vidal “so he could take care of the cashing process.” App’x at 570.

Contrary to Vidal’s suggestion, his fraudulent conduct was not analogous to United States

v. Rodriguez,

(2d Cir. 1998), where we held that the defendant’s mere act of

presenting checks to a bank for payment did not, by itself, show that the defendant had “engaged

in a deceptive course of conduct” for the purpose of establishing bank fraud, even if the defendant

knew that he or she was not entitled to the funds. Here, as noted above, the checks contained

specific representations in the restrictive endorsements, which a rational jury could find Vidal knew

were false at the time he endorsed the checks and obtained the lenders’ funds. These false

representations were material, as the lenders’ disbursement of funds was conditioned on Vidal’s

commitment to sell particular vehicles. Cf.

(“There simply was no evidence adduced at trial

that [any] misrepresentation could have, or did, influence [the bank’s] decision to allow [defendant]

5 to reach the funds at issue.”). Moreover, although Vidal argues that the alleged bank fraud scheme

was complete when the lenders issued the checks based on fraudulent loan applications that Vidal

did not fill out, the evidence supported a finding that this scheme was not complete until Vidal

endorsed the checks, with Vidal’s corresponding misrepresentations, and he received the funds.

See United States v. Rutigliano,

(2d Cir. 2015) (“[A] scheme to defraud is not

complete until the proceeds have been received.” (internal quotation marks and citation omitted)).

In sum, drawing all permissible inferences and resolving all issues of credibility in favor of

the government from the trial evidence, a rational jury could find that Vidal knowingly

misrepresented that the auto loan checks would be used to purchase specific vehicles so that he

could cash the checks and obtain the lenders’ funds for himself. A rational jury could also find,

based on Batista’s and Duarte’s testimony, that Vidal knew that Felix was taking out auto loans for

individuals with no intention of purchasing a car and that Vidal knowingly joined and participated

in the scheme to turn the auto loans into cash. See United States v. Ogando,

(2d

Cir. 2008) (“The conspiracy count[] . . . required the Government to present evidence from which

it can be reasonably inferred that the person charged with conspiracy knew of the existence of the

scheme alleged in the indictment and knowingly joined and participated in it.”). Accordingly,

Vidal’s challenge to the sufficiency of the evidence is without merit.

II. Evidentiary Rulings

Vidal also argues that the district court erred in admitting (a) evidence of his involvement

in fraudulent credit card transactions, and (b) coconspirator statements without a hearing under

Federal Rule of Evidence 104(a). We address each argument in turn.

6 a. Credit Card Evidence

Before trial, the government moved in limine to offer evidence of credit card transactions

that Vidal processed at E&V Auto Sales using credit cards issued to Duarte after Felix submitted

fraudulent applications on her behalf. The government argued that this evidence—offered in the

form of testimony from Duarte—would show that Vidal placed charges that were not connected to

any actual sales on Duarte’s credit cards and gave her cash in exchange, withholding a portion for

himself as a fee or commission. The district court ruled that this testimony was admissible as direct

evidence of the charged conspiracy, or, in the alternative, under Rule 404(b) to show Vidal’s

motive, knowledge, and intent. On appeal, Vidal contends that the credit card evidence should

have been excluded under Rule 403 and that it constituted a fatal variance from the indictment.

Rule 403 allows a district court to “exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. Evidence is not

unfairly prejudicial when it “d[oes] not involve conduct more inflammatory than the charged

crime.” United States v. Livoti,

(2d Cir. 1999). We review a district court’s

decision to admit this evidence for abuse of discretion. See United States v. Skelos,

(2d Cir. 2021). In particular, “[i]n reviewing Rule 403 challenges, we accord great deference

to the district court’s assessment of the relevancy and unfair prejudice of proffered evidence,

mindful that it sees the witnesses, the parties, the jurors, and the attorneys, and is thus in a superior

position to evaluate the likely impact of the evidence.” United States v. Quinones,

(2d Cir. 2007) (internal quotation marks and citation omitted). Thus, where a “district court

has conscientiously balanced the proffered evidence’s probative value with the risk for prejudice,

7 its conclusion will be disturbed only if it is arbitrary or irrational.” United States v. Awadallah,

(2d Cir. 2006).

Vidal argues that the credit card evidence was unfairly prejudicial because it associated him

with Felix and Duarte, connecting the credit card scheme with the auto loan scheme. We disagree.

To be sure, the credit card evidence did associate Vidal with the charged conspiracy; “but evidence

is unduly prejudicial only when it tends to have some adverse effect upon a defendant beyond

tending to prove the fact or issue that justified its admission into evidence.” United States v. Kadir,

(2d Cir. 2013) (alterations adopted) (internal quotation marks and citation

omitted). When ruling on the government’s motion in limine, the district court concluded that the

credit card evidence was “highly probative,” because “[i]t shed[] light on the relationships, the

purpose, and the methods” of the charged conspiracy, which involved “the same financial

institution, the same consumer, the same business of the defendant, all being used to generate cash

for the consumer and cash for the defendant.” App’x at 354–55. The district court further

concluded that the evidence’s probative value was not substantially outweighed by any danger of

unfair prejudice, because the credit card evidence is “not inflammatory, compared to the underlying

charges that the jury must concern itself with.” App’x at 355. Moreover, the district court twice

provided clear limiting instructions to the jury, emphasizing that these credit card transactions were

not the transactions for which Vidal was on trial. Thus, we discern no abuse of discretion in the

district court’s analysis under Rule 403. 2

2 Vidal additionally argues that the credit card evidence, as presented at trial, was unfairly prejudicial because Duarte testified that Vidal “never gave [her] the full amount of money from the credit cards.” App’x at 577. In particular, he asserts that this testimony is “evidence of uncharged criminal acts that could only be taken by the jury as evidence of Vidal’s propensity.” Appellant’s Br. at 33. As a threshold matter,

8 Vidal also asserts that the admission of the credit card evidence constituted a fatal variance

from the indictment. A variance occurs when “the evidence offered at trial proves facts materially

different from those alleged in the indictment.” United States v. Salmonese,

(2d

Cir. 2003) (internal quotation marks and citation omitted). “[W]e will reverse on account of a

variance only if it prejudices the defendant by infringing on the substantial rights that indictments

exist to protect—to inform an accused of the charges against him so that he may prepare his defense

and to avoid double jeopardy.” United States v. Kaplan,

, 129 (2d Cir. 2007) (internal

quotation marks and citations omitted). “Where the defendant has notice of the core of criminality

to be proven at trial, we have permitted significant flexibility in proof without finding prejudice.”

Id. (internal quotation marks and citation omitted). Here, the credit card evidence was admitted as

additional evidence of the charged auto loan conspiracy. Because the indictment gave notice that

the conspiracy involved the retention of proceeds from fraudulent transactions at his car dealership

using lenders’ funds, and particularly in light of the jury instructions appropriately limiting

consideration of the credit card evidence, Vidal cannot show that he was prejudiced by proof that

the conspiracy used credit cards, in addition to checks, to fund the fraudulent scheme. See

Salmonese,

(“[B]ecause [the indictment] gave [the defendant] fair and adequate

notice that the conspiratorial scheme achieved its ultimate economic purpose through the

conspirators’ multiple sales of stripped securities and their receipt of proceeds through June 1996,

Vidal did not object to that portion of the testimony. In any event, that testimony was inextricably intertwined with Duarte’s description of the purpose of the credit card transactions and her interactions with Vidal. Moreover, Duarte’s testimony in this regard was no more inflammatory than the charged conduct, especially because she went on to testify that Vidal gave her “some [cash] on several occasions,” as well as cars from his dealership for Duarte to sell. App’x at 578. Therefore, the district court was well within its discretion to find that this portion of Duarte’s testimony—like the rest of her testimony regarding the credit card scheme—was admissible under Rule 403.

9 [defendant] cannot show that he was prejudiced by proof of a few uncharged proceed receipts after

May 8, 1996.”). Therefore, we find Vidal’s variance argument unpersuasive.

b. Coconspirator Statements

Before trial, the government moved in limine to admit statements made by Felix and certain

auto loan borrowers as coconspirator statements under Rule 801(d)(2)(E). Vidal objected to the

admission of that evidence without an evidentiary hearing under Rule 104(a) to determine whether

a conspiracy existed, but the district court concluded that the government had made a sufficient

showing in its proffer and that no pretrial hearing was necessary. The district court thus ruled that

the coconspirator statements were admissible “subject to connection at trial . . . and review of the

trial evidence.” App’x at 48.

Under Rule 801(d)(2)(E), a statement is not hearsay if it “is offered against an opposing

party and . . . was made by the party’s coconspirator during and in furtherance of the conspiracy.”

Fed. R. Evid. 801(d)(2)(E). To admit a statement under this rule, the district court must find by a

preponderance of the evidence that: (1) “a conspiracy existed that included the defendant and the

declarant”; and (2) “the statement was made during the course of and in furtherance of that

conspiracy.” United States v. Gigante,

(2d Cir. 1999). “The decision as to

whether [these] prerequisites have been met, like all other preliminary questions of admissibility,

is to be made by the court.” United States v. Tracy,

(2d Cir. 1993). “We

review a district court’s admission of evidence under Rule 801(d)(2)(E) only for clear error.”

United States v. Coppola,

(2d Cir. 2012).

On appeal, Vidal contends that the district court erred in admitting the coconspirator

statements based on the government’s proffer, without conducting the Rule 104(a) hearing that he

10 requested. We disagree. The district court stated that the proffer was sufficient “subject to

connection at trial . . . and review of the trial evidence,” but that it would “change [its] mind if the

trial evidence does not line up with what I understand from the government’s proffer.” App’x at

48 (emphasis added). That approach is clearly permissible under our precedent. See United

States v. Geaney,

(2d Cir. 1969) (“[T]he practicalities of a conspiracy trial

may require that hearsay be admitted ‘subject to connection[]’ . . . when all the evidence is in . . .

.”); accord Tracy,

(“[S]tatements proffered as coconspirator statements may be

admitted in evidence on a conditional basis, subject to the later submission of the necessary

evidence of those . . . prerequisites.”). Moreover, the trial evidence ultimately aligned with the

proffer, demonstrating that Vidal worked in concert with Felix and the other borrowers to obtain

fraudulent proceeds from the lenders, and that the challenged statements were made during the

course and in furtherance of that conspiracy. See United States v. Tellier,

(2d

Cir. 1996) (holding that the district court may consider challenged statements in making the Rule

801(d)(2)(E) determination if supported by some independent corroborating evidence); United

States v. Perez,

(2d Cir. 1983) (“[W]here the record indicates it to be appropriate,

an implicit Geaney ruling can be inferred in the trial judge’s decision to receive the evidence and

to deny a directed verdict of acquittal on the conspiracy charge.”). Thus, the district court did not

err in admitting the coconspirator statements.

* * *

11 We have considered Vidal’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

12