United States v. McNeil , 45 F. App'x 225 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4329
MARCIA KIRVEN MCNEIL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CR-00-220-S)
Argued: June 6, 2002
Decided: August 26, 2002
Before WIDENER and WILKINS, Circuit Judges, and
Frederick P. STAMP, Jr., United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas McCarthy, Sr., Annapolis, Maryland, for Appel-
lant. Virginia B. Evans, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF:
Thomas M. DiBiagio, United States Attorney, Robert R. Harding,
Assistant United States Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. MCNEIL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marcia Kirven McNeil was charged with mail and wire fraud in
seven counts of an 18 count indictment stemming from a fraudulent
real estate flipping scheme in Baltimore. A jury convicted her of five
counts. She appeals her convictions alleging, inter alia, that the evi-
dence of the existence of a scheme to defraud was insufficient to con-
vict her. We affirm.
Mrs. McNeil’s sole assignment of error is that "[t]he denial by the
trial court of Appellant’s Motion for Judgment of Acquittal at the
conclusion of the Government’s Case, is error." (Br. p.i; see also Br.
p.1.) This assignment of error is approached in various ways with
more or less precision throughout the brief. In such a case, however,
we review the whole record. United States v. Heller, 527 F.2d 1173(4th Cir. 1975); United States v. Stradley, 295 F.2d 33, 35 (4th Cir.
1961).
Marcia McNeil, Carl Schulz, Thomas Mayer, and Angus Finney,
among others, instigated a scheme to flip properties in economically
depressed areas of Baltimore.1 The essence of the scheme was to buy
large numbers of very inexpensive properties and resell them at
greatly inflated prices, sometimes using the mortgage secured for the
second purchase to finance the initial purchase. The fraud occurred
through various efforts of Mrs. McNeil and her partners to convince
mortgage companies and third-party purchaser/borrowers into buying
1
A general description of what is called a criminal flipping scheme
includes a buyer acquiring title or right to title to a property and then sell-
ing it to a second buyer at an increased price without disclosing on
record the first buyer’s true interest in the property. The illegality in the
transaction comes from false representations as to value, or use, or ten-
ancy, or condition, or like things which affect value or credit worthiness.
UNITED STATES v. MCNEIL 3
the properties. Mrs. McNeil and her cohorts would serve as mortgage
brokers aiding interested third-parties in securing financing for the
properties. Often, the third-party purchaser/borrowers would not have
sufficient income, cash, or credit history to secure mortgages for the
properties they wished to purchase. Mrs. McNeil would create loan
documents containing misrepresentations of the applicant’s income,
down payment, and the presence of seller second mortgages inducing
lenders into furnishing the necessary funds for the second purchase of
the properties. Third-party purchaser/borrowers were induced into the
transactions through misrepresentations of the condition of the prop-
erties, potential for generation of rental income, and presence of rent
paying tenants. For some transactions, McNeil used her company,
Atlantic Investment Group, to contract for the purchase of groups of
properties and then prepared and submitted loan applications on
behalf of herself, which resulted in the issuance of mortgage loans
covering both AIG’s purchase and her own. However, since Mrs.
McNeil’s purchases were not recorded until after settlement, the lend-
ers did not know they were financing two separate purchases of the
properties and further that the original purchase price was a fraction
of the second price.
Mrs. McNeil was convicted by jury on five counts of seven in
which she was charged in the eighteen-count indictment. Because the
district court granted the motion of judgment of acquittal of the
appraisers, she contends that there was no scheme to defraud as
required by the mail and wire fraud statutes, thus her convictions must
be overturned. She maintains that even if a scheme to defraud was
present, the government did not prove that there was a victim of the
scheme. Finally, she argues that there is insufficient evidence to sup-
port her convictions as to the knowledge elements of wire fraud.
Mrs. McNeil’s first contention is that the acquittal of the appraisers
removed the object of the scheme to defraud, that of generating profit
for the participants through the use of fraudulent appraisals. She
argues that she could not be guilty of mail or wire fraud because the
dismissal of the charges against the appraisers removed the pall of
illegality from the appraisals she used in the loan documents. We
think this contention is not well taken.
Mrs. McNeil’s argument here is based on Paragraphs 15 and 28 of
the indictment, which read as follows:
4 UNITED STATES v. MCNEIL
15. It was further part of the scheme and artifice to
defraud that, in order to make a profit, SCHULZ AND
McNEIL had to obtain mortgage funds in excess of their
own costs in acquiring and selling the properties. They also
had to adjust their contract sales prices because the mort-
gage lenders would typically finance only a percentage (60
to 90%) of the contract sales price. In order to justify profit-
able contract sale prices to the mortgage lenders, SCHULZ
AND McNEIL arranged for appraisals that were close to the
contract sales prices. The appraisals were often prepared by
defendant GUY SHANEYBROOK through Allied
Appraisal Associates, Inc., and NARADE PRAMUAN
through DP Appraisal, Inc. The appraisals of SHANEY-
BROOK and PRAMUAN contained a variety of false, mis-
leading and fraudulent statements and representations. . . .
SHANEYBROOK and PRAMUAN prepared these false
and fraudulent appraisals knowing that they would be sup-
plied to: a) purchaser/borrowers, b) lenders to convince
them to provide mortgage financing so the sales to the pur-
chaser/borrowers would be consummated, and c) to the loan
purchasers to convince them to purchase the mortgage
loans.
28. It was also part of the scheme and artifice to defraud
that at settlement, the settlement agent would distribute the
mortgage funds so that SCHULZ, McNEIL, SHANEY-
BROOK, and PRAMUAN . . . would receive fees, pay-
ments, and proceeds for their respective roles in the property
transaction.
The elements of mail fraud are 1) the existence of a scheme to
defraud, 2) the use of the mails for the purpose of executing the
scheme, and 3) materiality of any misrepresentations.2 See 18 U.S.C.
2
The relevant portion of the mail fraud statute provides as follows:
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises, . . .
for the purpose of executing such scheme or artifice or attempt-
UNITED STATES v. MCNEIL 5
§ 1341; Neder v. United States, 527 U.S. 1, 23-25 (1999); United
States v. Goodwin, 272 F.3d 659, 666 (4th Cir. 2001). The elements
for wire fraud differ only in the method of executing the scheme
through a wire communication rather than the mails.3 18 U.S.C.
§ 1343. In order to establish the scheme to defraud, the government
must prove that Mrs. McNeil acted with the specific intent to defraud.
Goodwin, 272 F.3d at 666.
In granting Shaneybrook and Pramuan’s motions for judgments of
acquittal, the district court accepted Schulz’s testimony that he did not
push the appraisers to attach a specific dollar figure to the subject
property. Rather, the court found as follows:
"[t]hey said, here’s what we would like to get. . . . And the
appraisers went and looked. . . . Now if they’re at the outer
fringe of [their professional judgment], maybe that’s some-
thing they should be . . . called to account for in terms of
their licensure . . . but it doesn’t make them a participant
with the requisite degree of criminal knowledge in the
scheme that’s charged in the indictment."
The district court’s decision was based on the fact that the appraisers
ing so to do, places in any post office or authorized depository
for mail matter, any matter or thing whatever to be sent or deliv-
ered by the Postal Service, . . . shall be fined . . . or imprisoned
. . . , or both.
18 U.S.C. § 1341.
3
The wire fraud statute provides, in relevant part
Whoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises,
transmits or causes to be transmitted by means of wire, radio, or
television communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the purpose of
executing such scheme or artifice, shall be fined under this title
or imprisoned not more than five years, or both.
18 U.S.C. § 1343.
6 UNITED STATES v. MCNEIL
did not have specific knowledge of Schulz and Mrs. McNeil’s plan
to use the appraisals to commit fraud in the sale of the subject proper-
ties, thus they did not have the specific intent required for conviction.
The ruling was not based on some notion that the appraisals were cor-
rect, much less that a scheme to defraud did not exist. This exposes
the central flaw in Mrs. McNeil’s argument: the existence of a scheme
to defraud in this case does not require that the actual production of
the appraisals was in some way criminal. Cf. United States v. Klein,
515 F.2d 751, 754 (3rd Cir. 1975) (reversing conviction where public
fire insurance adjuster had knowledge of arson, but government
presented no evidence as to his knowledge that proof of loss forms
would be used to defraud insurance companies). The government
must prove a scheme to defraud, but is not required to prove every
act charged in the indictment in the scheme to defraud, providing that
one or more of them be proven. United States v. Briscoe, 65 F.3d 576,
585 (7th Cir. 1995). A false, misleading, or, fraudulent appraisal is
but one tool that Mrs. McNeil could have used to induce innocent
purchasers or lenders into the transactions, and in fact, many more
misrepresentations unconnected to the appraisals were alleged in the
indictment and proven, as we have set out above. Therefore, we are
of opinion that the acquittal of the appraisers does not entitle Mrs.
McNeil to reversal of her convictions because the scheme to defraud
and her role in it did not necessarily depend on whether or not of the
appraisers knew of her illegal plan.
Mrs. McNeil next challenges the sufficiency of the evidence sup-
porting her convictions. The first aspect of her sufficiency challenge
relates to the government’s proof regarding intended victims of the
wire fraud, while the second relates to the government’s proof regard-
ing intent to further the scheme to defraud through the use of the
wires. A jury verdict must be sustained if there is substantial evidence
supporting it. Glasser v. United States, 315 U.S. 60, 80 (1942). Upon
a review for sufficiency of the evidence "if the record reflects that the
Government presented substantial evidence from which a reasonable
jury could convict, we must uphold the verdict." United States v.
Godwin, 272 F.3d 654, 666 (4th Cir. 2001). We will discuss each of
McNeil’s contentions in turn and find both to be without merit.
The argument goes that her conviction on Counts 8, 9, 12, 14 and
16 "cannot be sustained because the Government has failed to identify
UNITED STATES v. MCNEIL 7
an intended victim of the alleged fraud." While it may be true that the
government called only one of the lenders connected with Counts 8
and 9, to say that his company had been defrauded, it was not neces-
sary to prove success of the schemes in each case to sustain a convic-
tion. This is not even to suggest that the facts surrounding the charge
in each of those counts were above board, far from it as the record
reveals. The crux of mail or wire fraud is the execution of a scheme
to defraud, and the scheme need not be successful in order to consti-
tute a crime, see United States v Bryan, 58 F.3d 933, 943 (4th Cir.
1995) (citations omitted), and the government’s proof regarding Mrs.
McNeil’s involvement in a scheme to defraud was ample. Indeed, her
partners, Schulz and Finney, testified against her at her trial on the
specifics of the fraudulent scheme. They detailed McNeil’s prepara-
tion of loan documents containing numerous misrepresentations con-
cerning the purchaser’s income, credit history, and existence of seller
second mortgages. In addition to her partner’s testimony, lenders with
respect to Counts 14 and 16 testified that they relied on her misrepre-
sentations in making lending decisions, either as the original lender
or as a purchaser on the secondary market. Three third-party purchas-
ers testified to misrepresentations Mrs. McNeil made, including those
regarding purchaser’s income, rental income, and condition of the
subject properties.
For example, among the many misrepresentations to which Mrs.
McNeil was a party, there is evidence which tends to show the fol-
lowing: Count 8, 924 North Chester Street, Baltimore, Maryland: a
deposit was reported on a contract signed by Mrs. McNeil, but the
deposit did not exist; Count 9, 1340 Division Street, Baltimore, Mary-
land: A false lease between Mrs. McNeil and one Dubin was reported
to show income to Mrs. McNeil; Count 12, 2357 Annapolis Road,
Baltimore, Maryland (March 27, 1998): Mrs. McNeil represented she
was Vice President of a company called Financial Solutions when, in
fact, she was not. Count 14, 2239 Sidney Avenue, Baltimore, Mary-
land: A false statement of the purchaser’s income was submitted on
a paper, apparently a W-2 form, at Mrs. McNeil’s request; Count 16,
2357 Annapolis Road, Baltimore, Maryland (December 2, 1998): The
contract of sale reported a $2,500 down payment which was not
made.
So the evidence against Mrs. McNeil in this respect was abundant.
8 UNITED STATES v. MCNEIL
Mrs. McNeil challenges the government’s proof with respect to the
use of wire communication. She argues that the government has not
proven that she knew of the specific wire transfers that occurred, and
that none of the wire transfers were on her behalf or knowingly
caused by her, rather they were on behalf of or caused by lenders and
banks involved in the transactions. Her argument fails because the
government need only prove that the use of a wire communication or
the mails was reasonably foreseeable. See United States v. Edwards,
188 F.3d 230, 233-4 (4th Cir. 1999). Here, the jury was correctly
instructed in accordance with the law as follows:
"It is not necessary for the defendant to be directly or per-
sonally involved in the delivery by interstate carrier or wire
communication, as long as such delivery or communication
was reasonably foreseeable in the execution of the alleged
scheme to defraud in which the defendant is accused of par-
ticipating. . . .
This does not mean that the defendant must have specifi-
cally authorized others to make the delivery or transmission.
When one does an act with knowledge that the use of the
wires can reasonably be foreseen, even though not actually
intended, then he causes the mails or wires to be used."
There was sufficient evidence for a reasonable jury to conclude in
accordance with the above quoted instructions that someone in Mrs.
McNeil’s business of real estate purchase and sale could reasonably
foresee that banks involved in a given transaction would transfer
monies using the wires. There was evidence that wire transfers were
a normal method for lenders to transfer money at the time of settle-
ment. Mrs. McNeil was in the real estate business herself long before
the facts underpinning the fraud involved here took place, which sup-
ports the conclusion that a reasonable jury could find that the use of
wire communication was reasonably foreseeable.
Accordingly, Mrs. McNeil’s convictions for mail and wire fraud
are
UNITED STATES v. MCNEIL 9
AFFIRMED.4
4
On the mail fraud conviction, Count 16, McNeil states that the mort-
gage company sent the check for the purchase of the subject property via
common carrier, and "the check does not appear to have crossed state
lines." Appellant’s Br. at 20. Assuming that this is a claim of error, we
need only note that the mail fraud statute makes all mailings in further-
ance of a scheme to defraud criminal, whether or not they cross state
lines. See United States v. Photogrammetric Services, Inc., 259 F.3d 229,
247 (4th Cir. 2001). In any event, the jury was correctly charged on mail
fraud, in the same vein as it was charged on wire fraud as set out in this
opinion, to which there was no objection. The evidence fully supports a
verdict of guilty.