United States v. Dwayne Onque , 665 F. App'x 189 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2436
_____________
UNITED STATES OF AMERICA
v.
DWAYNE K. ONQUE,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. Action No. 1-10-cr-00510-011)
District Judge: Honorable Jerome B. Simandle
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 22, 2016
_____________
No. 15-2453
_____________
UNITED STATES OF AMERICA
v.
MASHON ONQUE,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. Action No. 1-10-cr-00510-013)
District Judge: Honorable Jerome B. Simandle
______________
Argued June 21, 2016
_____________
No. 15-2501
_____________
UNITED STATES OF AMERICA
v.
NANCY E. WOLF-FELS,
Appellant
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Crim. Action No. 1-10-cr-00510-006)
District Judge: Honorable Jerome B. Simandle
______________
Argued June 21, 2016
______________
Before: FISHER, GREENAWAY, JR., and ROTH, Circuit Judges.
(Opinion Filed: November 9, 2016)
Peter A. Levin, Esq.
1927 Hamilton Street
Philadelphia, PA 19130
Attorney for Appellant Dwayne Onque
Anne C. Singer, Esq. [ARGUED]
34 Tanner Street
Haddonfield, NJ 08033
Attorney for Appellant Mashon Onque
2
Leigh M. Skipper, Chief Federal Defender
Brett G. Sweitzer, Assistant Federal Defender, Chief of Appeals
Keith M. Donoghue, Assistant Federal Defender [ARGUED]
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Attorneys for Appellant Nancy Wolf-Fels
Paul J. Fishman, United States Attorney [did not enter an appearance]
Mark E. Coyne, Assistant United States Attorney, Chief of the Appeals Division
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Glenn J. Moramarco, Assistant United States Attorney [ARGUED]
Office of the United States Attorney
Camden Federal Building & Courthouse
401 Market Street
Camden, NJ 08101
Attorneys for Appellee
______________
OPINION*
______________
GREENAWAY, JR., Circuit Judge.
After a consolidated trial, Appellants Dwayne Onque, Mashon Onque, and Nancy
Wolf-Fels were convicted of conspiracy to commit wire fraud; Dwayne Onque was also
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
3
convicted of conspiracy to commit money laundering. Before this Court, Appellants
allege a series of trial and sentencing errors, which we consider in turn. For the reasons
set forth below, we find no error. Accordingly, we will affirm the judgment of conviction
entered by the District Court.1
I. Background
In 2006, four men—Nick Tarsia, Darryl Henry, Timothy Ricks, and Jerry Smith—
devised a mortgage fraud scheme seeking to obtain inflated mortgage loans. By
borrowing more funds than they paid for the properties and retaining the difference, the
conspirators were able to make money on each fraudulent transaction. The conspirators
entered into thirty-one real estate transactions from October 2006 through May 2008.
Ultimately, the conspiracy “caused approximately fifteen (15) million dollars in funds to
be released from various lenders, most often in the form of a wire.” (JA 86.)
There were three tiers of conspirators. At the top (the “first tier”) were the four
leaders—Tarsia, Henry, Ricks, and Smith—who planned, launched, and ran the
conspiracy. These leaders would find financially distressed property owners who would
agree to (A) sell their units at reduced prices to buyers provided by the conspiracy
leaders, and then (B) report a higher sale price for mortgage applications, with the
1
See Kapral v. United States, 166 F.3d 565, 569 (3d Cir. 1999) (“In federal
criminal practice, ‘judgment of conviction’ refers to a formal document, signed by the
trial judge and entered by the clerk of the district court, that sets forth ‘the plea, verdict or
findings, the adjudication, and the sentence.’” (quoting Fed. R. Crim. P. 32(d)(1))).
4
understanding that the conspiracy leader would receive the difference between the
inflated sale price and the actual sale price.
The second tier consisted of people who worked in the mortgage industry and who
could prepare and authorize fraudulent “W-2s, income tax statements, bank statements,
and also . . . 401(k) retirement fund[]” records to indicate that the purported purchasers of
the properties were eligible for the requested loans. (JA 1860.) Nancy Wolf-Fels, a loan
officer at Mortgage Now,2 and Mashon Onque, a notary public and title officer at Tri-
State Title Agency, Inc., were industry-insider conspirators who were part of the second
tier.
At the lowest level of the conspiracy (the “third tier”) were “straw purchasers”
such as Dwayne Onque, who had good credit scores but lacked the funds to purchase
properties. These straw purchasers agreed to apply for the inflated mortgages by signing
fraudulent financial applications prepared by other conspirators. The applications
contained false information about the straw purchasers’ incomes, job titles, and assets.
The documents also falsely indicated that the straw purchasers brought their own funds to
closings. For their participation, the straw purchasers received “an up-front payment
after the closing for allowing their names and credit information to be used in connection
2
The Indictment indicates that Wolf-Fels was a mortgage broker, but she argues in
her brief that, as indicated by the testimony of the manager of the Forked River branch of
Mortgage Now at which Wolf-Fels worked, she was actually a loan officer. Because this
is a distinction without a difference for purposes of this appeal, we need not resolve this
non-substantive disparity.
5
with the transaction.” (JA 88.)
The conspiracy leaders used the excess loan funds to pay the straw purchasers;
they would also reinvest money in the scheme by setting some money aside to cover
future down-payments and six months of mortgage payments for the purchased
properties. These payments served to delay the discovery of the fraud and thus furthered
the conspiracy. The leaders then split the remaining profits.
When the leaders failed to pay the mortgages and fees on certain properties, an
investigation ensued that brought the conspiracy to light.
II. Procedural History
On November 6, 2013, a federal grand jury returned a two-count Second
Superseding Indictment against Wolf-Fels, the Onques, and four others. Count One of
the indictment alleged that Wolf-Fels, Mashon Onque, and Dwayne Onque, and others
participated in a conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and
contrary to 18 U.S.C. § 1343. Count Two alleged that Dwayne Onque and two others
committed conspiracy to commit money laundering in violation of 18 U.S.C. § 1957.
After motions in limine, including the Government’s request to introduce Rule
404(b) evidence against each defendant, trial commenced against Wolf-Fels, Dwayne
Onque, and Mashon Onque.
At the close of a fourteen-day trial, the jury found all three defendants guilty as to
Count One and found Dwayne Onque guilty as to Count Two. The District Court
6
sentenced Dwayne Onque to 63 months’ imprisonment, Mashon Onque to 30 months’
imprisonment, and Wolf-Fels to 42 months’ imprisonment. Each term of imprisonment
was to be followed by three years’ supervised release.
The District Court considered and denied the defendants’ various post-trial
motions. United States v. Onque, No. 10-510, 2015 WL 566987, at *1 (D.N.J. Feb. 9,
2015). Each defendant timely filed a notice of appeal.
III. Analysis
The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231.
This Court has jurisdiction over the challenges to the convictions pursuant to 28 U.S.C.
§ 1291 and to the sentences pursuant to 18 U.S.C. § 3742(a). We consider, and reject,
each of Appellants’ challenges.
A. Challenge Raised by Wolf-Fels3
For the first time on appeal,4 Wolf-Fels argues that the Government charged a
3
In their appellate briefs, both Mashon Onque and Dwayne Onque joined this
argument, which they, like Wolf-Fels, failed to raise below. This section of our analysis
applies to the Onques as well as to Wolf-Fels.
At oral argument, the Government contended that, like a sufficiency of the
evidence challenge, variance is not a type of argument that can be joined in such a
manner, but rather must be argued by (1) making an individualized showing of prejudice;
and (2) showing how this scheme was charged differently. Because we find that the
Government proved the single conspiracy charged, we do not reach the issue of whether
the variance argument is cognizable with respect to the Onques.
4
When raised for the first time on appeal, variance claims are reviewed for plain
error. United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010).
7
single, large hub-and-spokes conspiracy in the indictment but proved, at most, that a
number of smaller conspiracies took place. In other words, Wolf-Fels argues that there
was a variance between the offense charged and the evidence adduced at trial. As a
consequence, the Government introduced a great deal of evidence unrelated to Wolf-Fels.
Wolf-Fels further asserts that she was prejudiced by this purportedly extraneous evidence
because it enabled the jury to “convict her based purely on association with a parade of
guilty witnesses.” (Wolf-Fels Br. 33.)
At oral argument, Wolf-Fels stressed that the case had been tried as if it were
sufficient to show that the four conspiracy leaders were involved in all charged activity,
whereas the Government actually needed to show that the lower-tier conspirators were
aware that other lower-tier conspirators were also participating in the conspiracy.
Mashon Onque agreed and contended that, in this case, multiple discrete conspiracies
connected by only the participation of a few key participants had been charged as a
“single, all-inclusive conspiracy.” Blumenthal v. United States, 332 U.S. 539, 547
(1947). Onque also argued that such a variance can be prejudicial inasmuch as it enables
the Government to introduce testimony by all alleged co-conspirators.
When the facts proven at trial differ from those alleged in an indictment, “an
impermissible variance may exist.” United States v. Perez, 280 F.3d 318, 345–46 (3d
Cir. 2002) (citing United States v. Smith, 789 F.2d 196, 200 (3d Cir. 1986)). “A
conviction must be vacated when (1) there is a variance between the indictment and the
8
proof presented at trial and (2) the variance prejudices a substantial right of the
defendant.” United States v. Kemp, 500 F.3d 257 (3d Cir. 2007) (quoting United States v.
Kelly, 892 F.2d 255, 258 (3d Cir. 1989)).
This Court uses “a three-step inquiry to determine whether a series of events
constitutes a single conspiracy or separate and unrelated conspiracies.” Kelly, 892 F.2d at
258–59. We ask: (1) was there a common goal among conspirators; (2) was it in the
nature of the scheme to agree to produce a continuous result requiring the conspirators’
continuous cooperation; and (3) to what extent did the participants overlap in the various
dealings of the conspiracy. Id. (citation omitted).
There can be no doubt that the Government established the existence of a single,
large conspiracy in this case. First, the common goal was to obtain mortgage loans
fraudulently for profit. Second, the continuous participation of three levels of
conspirators was required to ensure both the success of each individual transaction and
the conspiracy’s ability to continue to reinvest funds in the acquisition of additional
properties. Finally, each transaction involved at least one conspiracy leader, one straw
purchaser, and one or more industry insiders, in satisfaction of the overlap requirement.
It is of no import that the industry insiders who worked on each transaction varied,
nor that not every straw purchaser participated in each transaction. It is well settled that
the “[G]overnment need not prove that each defendant knew all of the conspiracy’s
details, goals, or other participants.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.
9
1999). Further, “the [G]overnment, without committing a variance between a single
conspiracy charged in an indictment and its proof at trial, may establish the existence of a
continuing core conspiracy which attracts different members at different times and which
involves different sub-groups committing acts in furtherance of the overall plan.” United
States v. Boyd, 595 F.2d 120, 123 (3d Cir. 1978).
Here, the Government introduced evidence that Wolf-Fels worked with conspiracy
leader Darryl Henry to arrange for the fraudulent sale of four properties to straw
purchaser Larry Barker. At oral argument, the Government stressed that, even though
Wolf-Fels was directly linked to only three of the transactions,5 the jury was entitled to
infer—from Henry’s testimony and from the overlap in information used in support of
those transactions—that the four transactions, which all occurred during a period of six
weeks, had to be coordinated. The Government also introduced evidence that Wolf-Fels
critiqued and offered to correct fraudulent documents prepared by Elizabeth Hidalgo,
whom the conspiracy hired as a forger.
With respect to Mashon Onque, the Government furnished evidence that she had
been recruited into the conspiracy by Ricks and may have known of Tarsia’s involvement
as well. Mashon Onque served as the title agent for five fraudulent real estate
5
Wolf-Fels served as the mortgage broker for two of those properties and she
received a referral fee for outsourcing a third.
10
transactions6 and notarized the documents used in two other transactions. The
Government also showed that Mashon Onque deposited into her own account several
checks made out to Dwayne Onque during the course of the conspiracy. Finally, the
Government introduced evidence that Dwayne Onque earned over $75,000 by serving as
the straw purchaser for five properties over the course of the conspiracy. Both Ricks and
Tarsia were involved in at least four of those five transactions. Dwayne Onque
completed forms indicating that he was purchasing these properties, he had brought the
down payment to the closings, and his position and income were far higher than they
actually were. In fact, Dwayne Onque brought no money to the closings, but was paid
money for playing the role of purchaser in the sales, two of which involved the services
of his sister, Mashon. To facilitate his role-playing, Dwayne Onque, at the suggestion of
Ricks, asked his boss to lie about his position if anyone called to verify his employment.
In sum, the Government adduced evidenced that Wolf-Fels, Mashon Onque, and
Dwayne Onque each participated in several, similar transactions. These transactions
overlapped in purpose, in practice, and in participants with the other transactions
discussed at trial. The transactions thus fell within a single, pyramidal conspiracy much
like the check-cashing scheme this Court found to be one large conspiracy in United
States v. Greenidge, 495 F.3d 85, 93–95 (3d Cir. 2007). The fact that the conspiracy
encompassed transactions and additional participants beyond the ken of Appellants is of
6
Mashon Onque’s brother, Dwayne Onque, was the straw purchaser in two of
these transactions, which took place less than two months apart.
11
no consequence given Appellants’ sufficient connection to the pyramidal conspiracy.7
We therefore find no plain error in the form of variance.
B. Challenges Raised by Mashon Onque
In addition to the unavailing variance claim in which she joined, Mashon Onque
raises six other challenges to her conviction. None is persuasive.
1. Sufficiency of the Evidence Challenge
“Sufficiency of the evidence is a question of law, subject to plenary review.”
United States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012). Our review is, nevertheless,
deferential: this Court “review[s] the evidence in the light most favorable to the
Government, afford[s] deference to a jury’s findings, and draw[s] all reasonable
inferences in favor of the jury verdict.” United States v. Fountain, 792 F.3d 310, 314 (3d
Cir. 2015) (quoting Moyer, 674 F.3d at 206)). Thus, “[w]e will overturn the verdict ‘only
7
At argument, Wolf-Fels attempted to distinguish the conspiracy at issue here
from the pyramidal conspiracy in Greenidge on the basis that the larger Greenidge
conspiracy could not have functioned without numerous coconspirators, such that the
lowest-tier conspirators must have known that there were other members of the
conspiracy. Wolf-Fels argued that, in this case, there would be no reason for lower-tier
conspirators such as Wolf-Fels to suspect that other fraudulent transactions involving
other industry insiders were taking place.
Wolf-Fels misconstrues Greenidge as requiring that coconspirators be able to
readily deduce the participation of others at their tier of the conspiracy. It does not.
Rather, Greenidge observed that the low-tier conspirators “were necessary to the overall
success of the venture,” and then contextualized that comment by explaining why many
depositors were needed. Greenidge, 495 F.3d at 94. In short, Greenidge supports, rather
than undercuts, the finding of no variance here.
12
when the record contains no evidence, regardless of how it is weighted, from which the
jury could find guilt beyond a reasonable doubt.’” Id. at 314–15 (quoting Moyer, 674
F.3d at 206).
Mashon Onque argues that there was not sufficient evidence to support her
conviction. Not so. “To establish a charge of conspiracy, the Government must show
(1) a shared unity of purpose, (2) an intent to achieve a common illegal goal, and (3) an
agreement to work toward that goal, which [Appellant] knowingly joined.” United States
v. Boria, 592 F.3d 476, 481 (3d Cir. 2010) (citation omitted). As detailed supra in
Section III.A., the Government adduced evidence sufficient to support the conclusion that
the conspirators shared and collectively worked toward the purpose of profiting from a
fraudulent mortgage scheme, as well as evidence—notably in the form of testimony by
Ricks regarding his interactions with Mashon Onque and evidence that she signed
patently false mortgage application documents—that Mashon Onque knowingly joined
the conspiracy. Because there was evidence to support the jury’s guilty verdict, we find
no error in her conviction.
2. Rule 404(b) Evidence
Mashon Onque argues that the District Court erred in allowing the Government to
introduce, pursuant to Rule 404(b) of the Federal Rules of Evidence, evidence of non-
charged fraudulent property transactions in which she participated. We find no abuse of
discretion in the District Court’s determination to admit this evidence. See United States
13
v. Lee, 612 F.3d 170, 186 (3d Cir. 2010) (noting standard of review).
To determine whether evidence is properly admissible pursuant to Rule 404(b),
this Court applies the test coined by the Supreme Court in Huddleston v. United States,
485 U.S. 681 (1988), which has four parts: “(1) the evidence must have a proper
purpose; (2) it must be relevant; (3) its probative value must outweigh its potential for
unfair prejudice; and (4) the court must charge the jury to consider the evidence only for
the limited purposes for which it is admitted.” United States v. Givan, 320 F.3d 452, 460
(3d Cir. 2003) (citations omitted). Proper purposes for admitting other-acts evidence
include “proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).
In the three 404(b) transactions, which strongly resembled the charged
transactions, Mashon Onque had served as a title agent; the fact that she participated in
similar, fraudulent transactions five times, rather than just two, tends to indicate absence
of mistake by “mak[ing] it more likely that [Mashon Onque] knew the business [s]he was
about.” United States v. Claxton, 685 F.3d 300, 310 (3d Cir. 2012). Further, after two of
the 404(b) transactions, Mashon Onque deposited checks into her account, three of which
were made out to her brother and one to Ricks. This evidence could thus tend to show a
financial motive for Mashon Onque’s participation in the conspiracy. Given these
permissible uses that the 404(b) evidence could serve, we find the first Huddlseton factor
14
met.8
Because wire fraud is a specific intent crime, United States v. Hedaithy, 392 F.3d
580, 590 (3d Cir. 2004), it is also clear that the 404(b) evidence is relevant, which
satisfies the second Huddleston factor. The District Court weighed the prejudicial impact
of the 404(b) evidence against its probative value and determined that, because the
evidence was limited to three transactions and did not require any additional witnesses to
testify, it was not unfairly prejudicial; this determination satisfies the third Huddleston
factor. Finally, in satisfaction of the fourth Huddleston factor, the District Court charged
the jury in accordance with our model jury instruction for 404(b) evidence. Compare JA
2262–63, with Third Circuit Model Criminal Jury Instructions § 4.29 (2014). We
therefore find no abuse of the District Court’s discretion in its admission of this other acts
evidence.
3. The Willful Blindness Instruction
“A willful blindness instruction is typically delivered in the context of explaining
how the Government may sustain its burden to prove that a defendant acted knowingly in
committing a charged offense.” United States v. Tai, 750 F.3d 309, 314 (3d Cir. 2014).
“[W]illful blindness is a ‘subjective state of mind that is deemed to satisfy a scienter
requirement of knowledge[.]’” United States v. Stadtmauer, 620 F.3d 238, 255 (3d Cir.
2010) (quoting United States v. One 1973 Rolls Royce, 43 F.3d 794, 808 (3d Cir.1994)).
We thus reject Mashon Onque’s assertion at oral argument that no permissible
8
purposes were adduced to support the admission of this evidence.
15
Courts give a willful blindness instruction to ensure that “[d]eliberate ignorance cannot
become a safe harbor for culpable conduct.” United States v. Wert-Ruiz, 228 F.3d 250,
258 (3d Cir. 2000). To find willful blindness, a jury must find both that the defendant
“subjectively believed that there was a high probability that [the fact or circumstance of
which knowledge is required for the charged offense] existed” and that the defendant
“consciously took deliberate actions to avoid learning,” or “used deliberate efforts to
avoid knowing” that that fact or circumstance existed. Third Circuit Model Criminal Jury
Instructions § 5.06 (2015).
Mashon Onque argues that the District Court erred in giving the willful blindness
instruction in this case because there was allegedly no evidence that Mashon Onque took
steps to “avoid learning” of the fraudulent nature of the transactions in which she
participated and because the instruction was thus confusing. This argument disregards
the evidence that Mashon Onque served as the title agent and authorized fraudulent
documents for two properties purchased by her brother—neither of which he could
afford—less than two months apart. A jury could infer from Mashon Onque’s failure to
investigate these transactions, as well as her participation in other, similar transactions
involving Ricks, that she suspected that the transactions were probably fraudulent and did
not wish to have her suspicions confirmed through inquiry. This is sufficient to find
willful blindness, which can be a “purely psychological avoidance, a cutting off of one’s
normal curiosity by an effort of will.” United States v. Carrillo, 435 F.3d 767, 780 (7th
16
Cir. 2006) (quoting United States v. Craig, 178 F.3d 891, 896 (7th Cir. 1999)). We find
no abuse of discretion in the District Court’s decision to give this jury instruction. See
United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir. 2008) (noting standard of review).
4. Mashon Onque’s Other Challenges
In addition to the claims set forth supra, Mashon Onque challenges the District
Court’s admission of a summary chart, instruction that the jury could consider statements
by her co-conspirators, and determination that the Government’s opening and closing
statements did not contain mischaracterizations that rose to the level of plain error. These
unavailing claims do not warrant lengthy discussion because they all depend on the
argument, rejected above, that the Government did not succeed in proving a single,
overarching conspiracy.
Mashon Onque alleges that one of the Government’s exhibits was not a proper
summary exhibit under Rule 1006 of the Federal Rules of Evidence. That rule provides,
in relevant part, that “[t]he proponent may use a summary, chart, or calculation to prove
the content of voluminous writings, recordings, or photographs that cannot be
conveniently examined in court.” Fed. R. Evid. 1006. Mashon Onque argues that the
exhibit should not have been allowed because the information it synthesized was not so
voluminous that the Court could not have conveniently examined it without summary.
She also contends that the exhibit created prejudice by suggesting that the checks
deposited into Mashon Onque’s account, like the checks deposited by co-conspirators
17
that also appeared in the chart, were payment for her participation in the conspiracy.
Given the amount of evidence introduced by the Government, the use of multiple
summary charts such as the chart of which Mashon Onque complains was entirely
permissible. The fact that the chart included deposits that were conspiracy payments—
and thus supported the inference that the deposits attributed to Mashon Onque were also
payments—may create an inference that conflicts with Mashon Onque’s version of
events, but it does not in any way undermine the accuracy of the chart itself. We find no
error in the admission of the chart.
Equally meritless is the claim that the District Court committed reversible error by
instructing that the jurors could consider statements by co-conspirators whom Mashon
Onque did not know. The District Court’s instruction was virtually identical to this
Court’s model jury instruction 6.18.371K, which comports, in turn, with the Federal
Rules of Evidence. See Fed. R. Evid. 801(d)(2)(E) (classifying as “not hearsay” a
“statement offered against an opposing party” that “was made by the party’s
coconspirator during and in furtherance of the conspiracy”). Such statements by co-
conspirators are “admissible against all” coconspirators, even when “made . . . prior to
the adherence of some to the conspiracy.” United States v. Jannotti, 729 F.2d 213, 221
(3d Cir. 1984) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 393 (1948)).
Finally, we adopt in full the District Court’s thorough and cogent rejection of
Mashon Onque’s contention that the prosecutor prejudicially mischaracterized law and
18
fact in the Government’s closing statements and rebuttal. See United States v. Onque,
___ F. Supp. 3d ___, 2015 WL 566987, at *10–13 (D.N.J. Feb. 9, 2015) (addressing the
prosecutor’s remarks in detail); see also United States v. Lee, 612 F.3d 170, 194 (3d Cir.
2010) (“We have repeatedly held that a ‘prosecutor is entitled to considerable latitude in
summation to argue the evidence and any reasonable inferences that can be drawn from
that evidence.’” (quoting United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991)
(citations omitted))).
C. Challenges Raised by Dwayne Onque
Appellant Dwayne Onque challenges both his conviction and his sentence.
Because none of these challenges has merit, we will affirm his judgment of conviction.
1. Challenges that Overlap with Mashon Onque’s Arguments
Like his sister, Dwayne Onque argues that the District Court erred in giving the
jury a willful blindness instruction and in admitting fifteen exhibits, which he argues
were not proper summary exhibits. We find neither argument persuasive.
As to the willful blindness charge, Dwayne Onque argues that it improperly
allowed the jury to find knowledge where, in fact, the evidence supported only the theory
that he was negligent for signing documents that he had not read. The Government’s
evidence that Dwayne Onque presented himself as the purchaser of multiple properties
that he knew he could not afford, as well as his request that his employer confirm the
false job information he supplied, suffice to support the willful blindness instruction.
19
Dwayne Onque argues that the District Court erred in permitting the Government
to introduce certain summary charts because they did not summarize sufficiently
voluminous evidence to be admissible pursuant to Rule 1006 of the Federal Rules of
Evidence and because they were misleading and unfairly prejudicial by virtue of
presenting only certain payments within each transaction represented. Further, the
summary charts allegedly “allow[ed] the Government to repeat its entire case-in-chief
shortly before jury deliberations.” (D. Onque Br. 35 (quoting United States v. Fullwood,
342 F.3d 409, 413 (5th Cir. 2003)).)
As noted above, however, the Government introduced large amounts of evidence
in this case. The fact that the charts included the most pertinent information with respect
to each transaction does not render the charts misleading; on the contrary, it highlights
their utility in winnowing out evidence extraneous to the charged offenses. The
condensed charts certainly do not recreate the entirety of the Government’s case. We
again find no error in the admission of this summary evidence.
2. Sufficiency of the Evidence Challenges
Dwayne Onque asserts that the Government failed to carry its burden of proving
that he had the necessary mental state—knowledge—to be convicted of either the wire-
fraud or the money-laundering conspiracy.9 In support of this contention, Dwayne Onque
9
The money-laundering conspiracy charge stated that, in violation of 18 U.S.C.
§ 1957, Dwayne Onque knowingly conspired to engage in transactions of “criminally
20
points to the fact that he allegedly earned only $75,000 from properties whose mortgages
totaled $1.6 million, as well as Ricks’s testimony that Dwayne Onque “wasn’t part of
[Ricks], Darryl Henry and Nick Tarsia, no. He was just a buyer.” (D. Onque Br. 24
(quoting J.A. 1339–40).)
We find that there is sufficient evidence, noted supra in Sections III.A. and
III.C.1., to support Dwayne Onque’s convictions. The fact that Dwayne Onque netted
$75,000—only a fraction of the total mortgages for the transactions in which he
participated—does not militate in favor of a different conclusion. See Greenidge, 495
F.3d at 103 (recognizing that, “even though [the defendant’s] financial gain from the plan
was relatively insubstantial, his role was nevertheless essential”). Similarly, the cited
testimony is irrelevant inasmuch as “the [G]overnment did not have to prove that
[Onque] participated in the conspiracy from its inception, but only that he knowingly
became a member of the ongoing conspiracy.” United States v. Cont’l Grp., Inc., 603
F.2d 444, 452 (3d Cir. 1979).
3. Sentencing Challenges
Dwayne Onque challenges his sentence on the following grounds:10 (1) the
derived property of a value greater than $10,000 that was derived from . . . conspiracy to
commit wire fraud.” (JA 97.) The same evidence thus supports both convictions.
10
“We review the District Court’s interpretation of the Sentencing Guidelines de
novo, and scrutinize any findings of fact for clear error.” United States v. Cespedes, 663
F.3d 685, 688 (3d Cir. 2011) (quoting United States v. Aquino, 555 F.3d 124, 127 (3d Cir.
2009)). “If we determine that the district court has committed no significant procedural
error, we then review the substantive reasonableness of the sentence under an abuse-of-
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District Court erred in applying the two-level sophisticated means enhancement; (2) the
District Court erred in declining to apply the minor or minimal role adjustment; (3) the
sentence was unreasonable because the District Court did not meaningfully consider the
section 3553 factors or the asserted grounds for granting a downward variance.
Dwayne Onque first argues that the sophisticated means enhancement, U.S.S.G.
§ 2B1.1(b)(10), should not apply to him because he did not prepare any of the fraudulent
forms that served as the basis for this enhancement. He bolsters his argument by noting
that the Guidelines have since been amended to provide that the enhancement should
apply only to defendants responsible for creating or using such documents. This
argument lacks merit.
As the District Court found at Dwayne Onque’s sentencing hearing, the
Government introduced ample evidence that fraudulent forms were used in the
conspiracy; that Dwayne Onque signed such forms and, through them, had mortgage
funds wired into his account; and that he asked his employer to lie to corroborate the
information presented in the forms. We find no clear error in the District Court’s
determination that the enhancement would apply to Dwayne Onque “both under [the
then-]existing law and under the proposed amendment that [did not] take effect until
discretion standard, regardless of whether it falls within the Guidelines range.” United
States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008) (citing Gall v. United States, 552 U.S.
38, 50 (2007)).
22
November 1, 2015.” (D. Onque Suppl. App. 48.)11
We similarly find no clear error in the District Court’s determination that, under
both the pre- and post-amendment Guidelines, Dwayne Onque was an “average”
participant in the conspiracy, neither entitled to a downward variance for a minimum role
nor subject to an enhancement for leadership. The evidence, detailed above, supports this
conclusion, and Dwayne Onque’s argument to the contrary is unavailing. We now turn to
Dwayne Onque’s final argument—that his sentence was substantively unreasonable
because the District Court failed to meaningfully consider the factors set forth in 18
U.S.C. § 3553(a), which Appellant argues to suggest that a downward variance would
have been warranted in his case. Dwayne Onque focuses, in particular, on the Court’s
“refus[al] to acknowledge Appellant[’]s recognition of guilt” and failure to meaningfully
consider “the need to deter the Appellant.”
First, although Dwayne Onque stated, “I accept responsibility for what I’ve done,”
he also stressed that he had been deceived into participating in the fraud and “just did not
know what [he] was doing.” (D. Onque Suppl. App. 68.) Second, 18 U.S.C.
§ 3553(a)(2)(B) requires a sentencing court to consider what would constitute “adequate
11
Because we agree that the enhancement would apply under either the old or the
new iteration of Section 2B1.1(b)(10), we do not reach the question of whether the 2015
amendment was a clarifying amendment that should apply retroactively. See United
States v. Diaz, 245 F.3d 294, 301 (3d Cir. 2001) (discussing retroactive application or
clarifying amendments).
23
deterrence,” something the District Court did at length when it found that, although no
specific deterrence was needed here, the need for general deterrence was great. Further,
the District Court discussed Dwayne Onque’s sentence, as compared to the sentences
received by coconspirators, the scope and seriousness of the offenses of which he was
convicted, and the amount of money involved in the scheme, which the Court adjusted
for inflation. All in all, we find that the District Court did not abuse its discretion in
sentencing Dwayne Onque to a 63-month term, which represents the bottom of the
Guidelines range of 63–78 months.
IV. Conclusion
Because we find none of the challenges raised by Appellants to be meritorious, we
will affirm each of the judgments of conviction imposed by the District Court.
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