United States v. Joseph L. Pasquale
706 F. App'x 970
| 11th Cir. | 2017Background
- Pasquale, a former real estate professional, ran a business lending buyers down-payment funds (via a Design Upgrade Package or "DUP") on a Tampa condominium conversion project; those funds were reimbursed from mortgage proceeds after closing and treated as buyer "cash."
- The DUP and related "hard money" loans and incentives were not disclosed to the mortgage lenders; buyers’ loan applications mischaracterized units as second residences and closing statements showed buyer cash rather than broker-originated funds.
- An FBI agent and former agent, Richard Higgins, testified that Pasquale (with counsel present) admitted he knew the buyers didn’t intend to occupy units, knew brokers shouldn’t lend down payments, understood the loans were not disclosed to lenders, and believed he had committed fraud.
- Defense moved for judgment of acquittal after the government’s case-in-chief and again at trial’s end; the district court reserved ruling then denied the motion after verdict.
- A jury convicted Pasquale of conspiracy to commit bank fraud (18 U.S.C. § 1349) and substantive bank fraud (18 U.S.C. § 1344); Pasquale appealed challenging sufficiency of evidence on knowledge and arguing prosecutorial misconduct in closing and rebuttal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence on knowledge for conspiracy and substantive bank fraud | Govt: evidence (admissions to agent, testimony about DUP concealment, industry knowledge) permits inference of knowing participation | Pasquale: government failed to prove he knew incentives were undisclosed at loan origination | Affirmed — viewing government case-in-chief in government’s favor, jury could infer knowledge beyond reasonable doubt |
| Standard for reviewing Rule 29 motion reserved after government rested | Govt: when court reserves ruling, review limited to evidence at time ruling was reserved | Pasquale: N/A (procedural) | Court applied Moore: limited review to government’s case-in-chief |
| Prosecutorial misconduct: improper personal attacks and vouching in closing/rebuttal | Pasquale: prosecutor called him a liar and questioned defense counsel’s ethics; vouched for agent | Govt: comments were fair responses to defense arguments and focused on incentives to lie and absence of evidence; did not personally vouch | No plain error — remarks were permissible argument about witness credibility and response to defense closing |
| Plain-error standard for unobjected-to misconduct | Pasquale: district court should have sua sponte struck remarks or declared mistrial | Govt: defendant failed to object; review limited to plain error requiring showing of error, plainness, impact on substantial rights | No plain error found; defendant didn’t meet burden to show effect on fairness of proceedings |
Key Cases Cited
- United States v. Pacchioli, 718 F.3d 1294 (11th Cir. 2013) (standard for de novo sufficiency review)
- United States v. Harrell, 737 F.2d 971 (11th Cir. 1984) (evidence need not exclude every reasonable hypothesis of innocence)
- United States v. Broughton, 689 F.3d 1260 (11th Cir. 2012) (deference to jury credibility choices)
- United States v. Moore, 504 F.3d 1345 (11th Cir. 2007) (when Rule 29 ruling reserved, review limited to evidence presented at that time)
- United States v. Moran, 778 F.3d 942 (11th Cir. 2015) (elements of § 1349 conspiracy)
- United States v. McCarrick, 294 F.3d 1286 (11th Cir. 2002) (elements of bank fraud under § 1344)
- United States v. Duran, 596 F.3d 1283 (11th Cir. 2010) (prosecutorial misconduct reviewed de novo; mixed questions of law and fact)
- United States v. Madden, 733 F.3d 1314 (11th Cir. 2013) (plain-error standard for unpreserved objections)
- United States v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010) (definition of improper vouching)
- United States v. Lopez, 590 F.3d 1238 (11th Cir. 2009) (prosecutor may comment on witness credibility and respond to defense attacks)
- United States v. Reeves, 742 F.3d 487 (11th Cir. 2014) (prosecutor may respond fairly to defense arguments)
- United States v. Calderon, 127 F.3d 1314 (11th Cir. 1997) (criticizing defense counsel for misstating evidence in opening does not necessarily constitute misconduct)