United States v. Jong Shin , 560 F. App'x 137 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-3623
_____________
UNITED STATES OF AMERICA
v.
JONG SHIN,
Appellant
On Appeal from the United States District Court
for the District of New Jersey
(District Court No.:1-10-cr-00208-001)
District Judge: Honorable Renee M. Bumb
Submitted under Third Circuit LAR 34.1(a)
on March 3, 2014
(Opinion filed: March 19, 2014)
Before: RENDELL, SMITH and HARDIMAN, Circuit Judges
OPINION
RENDELL, Circuit Judge:
After a jury trial in the United States District Court for the District of New Jersey,
Jong Shin was found guilty of: (1) conspiracy to commit wire fraud, in violation of 18
U.S.C. §§ 1343 and 1349; (2) money laundering, in violation of 18 U.S.C. § 1956(h); and
(3) false statements on a loan or credit card application, in violation of 18 U.S.C. §§ 1014
and 2. 1 Shin appeals the judgment of conviction and her sentence of 186 months’
imprisonment. For the reasons that follow, we will affirm.
I. Background 2
From May 2006 to December 2006, Shin orchestrated a scheme to flip real estate
in Atlantic City, New Jersey at a substantial profit by submitting fraudulent loan
applications, inflated appraisals, and falsified closing documents to mortgage lenders.
Between May and October 2006, Shin purchased seven Atlantic City properties. Without
having improved any of the properties, Shin re-sold them at inflated prices to five straw
purchasers she had recruited. To lure the straw purchasers, Shin paid them a few
thousand dollars and promised to make the mortgage payments if they submitted
mortgage applications, went to the closing, and signed the appropriate paperwork.
To obtain the mortgages, Shin and a mortgage broker at Summit Mortgage
Bankers arranged and prepared Uniform Residential Loan Applications (URLAs) for
each straw purchaser, containing false statements about the purchasers’ employment,
income, and plans to reside at the properties. Shin also paid a real estate appraiser to
prepare fraudulent appraisals, inflating the value of the properties. Finally, Shin paid a
closing agent at Equity Title to prepare fraudulent closing documents that hid the fact that
the straw purchasers had not invested any money in the properties, and that Shin (as
1
Shin was convicted of two counts under 18 U.S.C. § 1014.
2
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 and this Court
has jurisdiction under 28 U.S.C. § 1291.
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opposed to the straw buyers) received the loan proceeds in each of the transactions. Shin
participated in at least ten fraudulent real estate closings and collected approximately
$1.2 million. All of the mortgages eventually went into default and most of the properties
were foreclosed upon by the lender. By the end of Shin’s scheme, the victim banks were
owed an amount exceeding $4,600,000.
On October 3, 2011, a jury trial began before Judge Renee Marie Bumb in the
District of New Jersey. Shin was found guilty on all counts. At sentencing, after
calculating a Guidelines range of 168-210 months’ imprisonment based on a total offense
level of 35 and a criminal history category of I, the District Court sentenced Shin to 186
months’ imprisonment.
II. Discussion
Shin raises five arguments on appeal: (1) the District Court’s jury instruction on
“reasonable doubt” was improper; (2) the District Court plainly erred in admitting co-
conspirators’ plea agreements during direct examinations; (3) the District Court did not
have jurisdiction because there was insufficient evidence of a federal offense; (4) the
sentence imposed was substantively unreasonable; and (5) Shin received ineffective
assistance of counsel at trial and at sentencing. We address each of these arguments,
below.
A. The “Reasonable Doubt” Jury Charge
Since Shin did not object at trial to the District Court’s jury instruction on
“reasonable doubt,” we review for plain error. See United States v. Bobb, 471 F.3d 491,
499-500 (3d Cir. 2006). The District Court used our Model Jury Instruction on the issue
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of reasonable doubt. See Third Circuit Model Jury Instructions § 3.06. Shin objects to the
portion of the instruction which states: “[Reasonable doubt] is a doubt of the sort that
would cause [an ordinary reasonable person] to hesitate to act in matters of importance in
his or her own life.” Id. Shin argues that this instruction does not adequately convey that
“reasonable doubt” is a higher standard of proof than the “preponderance of the
evidence” standard because a reasonable person might hesitate to make important
decisions in everyday life even if something were only more likely than not to be true.
A district court is not required to define reasonable doubt as long as the court
instructs the jury on the necessity that the defendant’s guilt be proven beyond a
reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 (1994). We have held that “[w]hen an
attack upon a jury charge is based upon the trial court’s instruction on reasonable doubt,
‘[t]he constitutional question . . . is whether there is a reasonable likelihood that the jury
understood the instructions to allow conviction based on proof insufficient to meet the
[constitutional] standard.” United States v. Hernandez, 176 F.3d 719, 728 (3d Cir. 1999)
(quoting Victor, 511 U.S. at 6). Here, considering the language Shin challenges in the
context of the full charge, we find that there is no reasonable likelihood that the jury
understood the instructions to allow conviction on less than proof beyond a reasonable
doubt. We have expressly approved these instructions in the past and see no reason to
disturb that decision. See United States v. Hoffecker, 530 F.3d 137, 175 (3d Cir. 2008)
(noting approval of language mirroring model instruction in prior case, Hernandez). We
therefore find that the District Court did not err in its jury instructions.
B. Admission of Co-Conspirators’ Plea Agreements
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We review Shin’s objection to the admission of her co-conspirators’ plea
agreements for plain error because she did not object at trial. See Fed. R. Crim. P. 52(b).
Shin argues that the government improperly bolstered the credibility of its witnesses by
introducing multiple cooperation agreements in its case in chief. She states that guilty
plea agreements may only be admitted into evidence after the credibility of a witness has
been attacked. We have clearly held, however, that a cooperating witness’ plea agreement
is admissible as part of the government’s principal case. See United States v. Universal
Rehab. Servs. (PA), Inc., 205 F.3d 657, 670 (3d Cir. 2000) (en banc). We explained that
“evidence of a testifying witness’s guilty plea or plea agreement may be introduced for
probative, and therefore permissible, purposes,” such as, “to allow the jury accurately to
assess the credibility of the witness.” Id. at 665. Even when a witness’ credibility is not
affirmatively attacked, a plea agreement may be properly introduced because the
credibility of a co-conspirator testifying to have participated in a crime for which the
defendant has been charged, “will automatically be implicated.” Id. at 666 (quoting
United States v. Gaev, 24 F.3d 473, 477 (3d Cir. 1994)). We explained:
Questions will arise in the minds of the jurors whether the co-conspirator is
being prosecuted, why he is testifying, and what he may be getting in
return. If jurors know the terms of the plea agreement, these questions will
be set to rest and they will be able to evaluate the declarant’s motives and
credibility . . . . [A]n attack is not always necessary. . . .
Id. Here, the cooperating witnesses immediately admitted their participation in Shin’s
criminal activity during direct examination. Their credibility, therefore, automatically
came into question and the government properly offered their plea agreements into
evidence. We find no error in their admission.
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C. Sufficiency of the Evidence
We apply a “particularly deferential standard of review” to challenges to the
sufficiency of the evidence supporting a conviction. United States v. Powell, 693 F.3d
398, 401 n.6 (3d Cir. 2012). “We view all evidence in the light most favorable to the
government, and sustain conviction as long as ‘any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’” Id. (quoting United
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)).
Shin concedes that she “may have violated state law,” by submitting fraudulent
loan applications to a non-federally insured institution, but argues that she did not violate
federal law because she personally did not submit a URLA to a federally insured bank.
Appellant’s Br. 35. Section 1014 of title 18 of the United States Code criminalizes
“knowingly mak[ing] any false statement or report . . . for the purpose of influencing in
any way the action” of a Federal Deposit Insurance Corporation (FDIC) insured bank
upon a loan. 18 U.S.C. § 1014. We have never held that to be liable under § 1014 a
defendant must personally submit the false statements to the federally insured bank;
rather, use of a third party conduit could suffice. The Fifth and Ninth Circuits have held
that a defendant need not know which particular bank his false statements will be
presented to or that the institution is federally insured – “it is enough that he knew the
false statements were to be presented to a bank.” United States v. Bellucci, 995 F.2d 157,
159 (9th Cir. 1993) (per curiam); see also United States v. Thompson, 811 F.2d 841, 844
(5th Cir. 1987) (holding that government must merely show that “defendant knew that it
was a bank that he intended to influence”) (emphasis omitted).
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Here, there was more than enough evidence for a rational jury to convict Shin
under § 1014. Shin does not dispute that the government presented evidence that J.P.
Morgan Chase (a federally insured bank) provided loans in at least three of the real estate
transactions for which she was indicted. The government also presented evidence that
Shin prepared false URLAs for at least two of her straw purchasers and that she directed
them to submit their URLAs to her co-conspirator, Esther Zhu, a mortgage broker at
Summit Mortgage Bankers. Zhu submitted the URLAs to J.P. Morgan Chase. Based on
the fraudulent URLAs and the other falsified documents, J.P. Morgan Chase approved
and funded the loans.
The District Court denied Shin’s Rule 29(c) motion for a judgment of acquittal on
the grounds that a jury could have found Shin guilty based on any of three alternate
theories:
(1) [Shin’s] knowledge, when she prepared the fraudulent loan applications
at issue, that they would ultimately be submitted to [J.P. Morgan] Chase;
(2) [Shin’s] aiding and abetting of her co-conspirators in committing these
offenses; and (3) the fact that [] these offenses were committed in the scope
and in furtherance of the wire fraud conspiracy and the acts were
reasonably foreseeable consequences of the conspiracy.
(App. 1298-99.) We agree. See 18 U.S.C. § 2(b) (“Whoever willfully causes an act to be
done which if directly performed by him or another would be an offense against the
United States, is punishable as principal.”); United States v. Lopez, 271 F.3d 472, 480 (3d
Cir. 2001) (holding that the “criminal act of one conspirator in furtherance of the
conspiracy is ‘attributable to the other[] [conspirators] for the purpose of holding them
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responsible for the substantive offense”) (quoting Pinkerton v. United States, 328 U.S.
640, 647 (1946)). There was sufficient evidence to support Shin’s conviction.
D. Reasonableness of the Sentence
Shin argues that her sentence was substantively unreasonable because “she was a
first time offender with compelling case characteristics.” Appellant’s Br. 23. We review
the District Court’s sentence under an abuse of discretion standard. United States v. Gall,
552 U.S. 38, 49 (2007). We consider both procedural and substantive unreasonableness.
Id. at 51. We will affirm a procedurally sound sentence “unless no reasonable sentencing
court would have imposed the same sentence on that particular defendant for the reasons
the district court provided.” United States v. Siddons, 660 F.3d 699, 708 (3d Cir. 2011)
(internal quotation marks omitted). “For a sentence to be substantively reasonable, a
district court must apply the § 3553(a) factors reasonably to the circumstances of the
case.” United States v. Lessner, 498 F.3d 185, 204 (3d Cir. 2007)
Shin’s Guidelines range was 168-210 months and she was sentenced to 186
months’ imprisonment. She argues that this sentence was unreasonable because she was a
first time offender and had come from a difficult background. Her father had been an
alcoholic, her parents had separated, and she had lived with her maternal grandmother
since the age of 10. Shin’s only child died at the age of 19 after suffering for several
years from a genetic neurological disease. In spite of these difficult life circumstances,
Shin had maintained employment as a registered nurse for twenty years prior to her
incarceration. Finally, Shin pointed out that her co-conspirators received much lighter
sentences than she did (some received only a day in custody).
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Shin’s mitigation arguments were conveyed to the District Court in the
Presentence Investigation Report, Shin’s Sentencing Memorandum, and again by defense
counsel at sentencing. (See Presentence Report ¶¶ 144-170; App. 1222-48; id. at 1151-
59.) The record demonstrates that the District Court gave meaningful consideration to
Shin’s arguments for leniency and the § 3553(a) factors. (App. 1163-68.) The Court
specifically addressed Shin’s lack of a criminal history, her remorse, the loss of her son,
and her difficult childhood. (Id. at 1164-67.) It also expressly considered the need to
avoid unwarranted sentencing disparities but noted that Shin stood “in stark contrast to
those others that [it] sentenced because they followed [her], they believed in [her], [she]
connived them and [she] selfishly used them for [her] own benefit.” (Id. at 1165.) The
Court stated, “You didn’t have it easy, but just because you didn’t have it easy growing
up doesn’t mean that you can turn around and abuse and destroy the lives of people who
thought they were your friends.” (Id.) The Court concluded that a sentence within the
Guidelines range was warranted. Because it acted within the bounds of its discretion in
doing so, Shin’s sentence was substantively reasonable.
E. Ineffective Assistance of Counsel
Shin argues that her trial and sentencing counsel were ineffective because trial
counsel did not move to dismiss the indictment on the insufficiency of the evidence and
because sentencing counsel failed to present certain mitigation arguments at sentencing.
Generally, we do not review claims of ineffective assistance of counsel on direct appeal
because a district court is “the forum best suited to developing the facts necessary to
determining the adequacy of representation.” Massaro v. United States, 538 U.S. 500,
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505 (2003). We may, however, address a claim of ineffective assistance of counsel on
direct appeal “[w]here the record is sufficient to allow determination of [the issue].”
United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).
Here, there is no need for further factual development. Under Strickland v.
Washington, 466 U.S. 668 (1984), to establish ineffective assistance of counsel a criminal
defendant must show that counsel’s conduct was deficient, id. at 690, and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. Shin has not shown that her lawyers’
allegedly deficient conduct prejudiced her in any way. As we have already noted, the
evidence in this case was more than sufficient for a reasonable jury to have found Shin
guilty of the offenses for which she was convicted. A motion to dismiss the indictment on
the insufficiency of the evidence, therefore, would have been fruitless.
Shin argues that her sentencing counsel’s performance was deficient because he
failed to set forth the mitigation arguments which Shin now raises on appeal. All of
Shin’s allegedly “new” mitigation arguments, however, were presented to the District
Court in the Presentence Investigation Report, Shin’s Sentencing Memorandum, or by
Shin’s lawyer at the sentencing. (See Presentence Report ¶¶ 144-170; App. 1222-48; id.
at 1151-59.) The District Court considered and rejected these arguments. There is nothing
to suggest that but for counsel’s performance, Shin would have received a lower
sentence. Thus both of Shin’s claims for ineffective assistance of counsel will be
dismissed.
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III. Conclusion
For the reasons set forth above, we will affirm Shin’s judgment of conviction and
her sentence.
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