United States v. Nathan ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    March 27, 2009
    No. 07-20684                        Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    IGBANIBO C. NATHAN
    Defendant-Appellant
    ------------------------------------------------------------------------------------------------------------
    Consolidated with
    No. 07-20936
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    YERISOIBI FLORENCE HAMILTON
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:05-CR-226-7
    USDC No. 4:05-CR-226-6
    No. 07-20684 and
    No. 07-20936
    Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
    EDITH H. JONES, Chief Judge:*
    Igbanibo Nathan and Yerisoibi Hamilton were convicted of multiple counts
    of bank fraud and money laundering in connection with a land flip scheme.1 See
    United States v. Sallee, 
    984 F.2d 643
    , 644 n.1 (5th Cir. 1993) (providing a
    detailed example and explanation of a generic land flip scheme). Hamilton and
    Nathan were the escrow agent and the “hard money” lender, respectively, for
    this land flip.       The district court sentenced Nathan to sixty months
    imprisonment and three years supervised release. Hamilton was sentenced to
    ninety-six months imprisonment and five years supervised release. They now
    appeal their convictions, and Nathan appeals his sentence. For the reasons
    stated below, we AFFIRM.
    Nathan and Hamilton both acknowledge that their services were used in
    a scheme to defraud Banco Popular. They argue, however, that the Government
    did not prove that they had the knowledge and specific intent to commit the
    bank fraud and money laundering counts with which they were charged.
    Sufficiency of the evidence supporting a conviction is viewed in the light most
    favorable to the jury verdict, and this court determines only whether “any
    rational trier of fact could have found the essential elements of the crime beyond
    a reasonable doubt.” United States v. Sprick, 
    233 F.3d 845
    , 852 (5th Cir. 2000)
    (internal quotation marks omitted).               At trial, the Government introduced
    evidence that Hamilton had altered documents during the closing, that Nathan
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    1
    Land flip schemes are not per se illegal but are commonly used to further other types
    of fraud or illegality. See United States v. Luffred, 
    911 F.2d 1011
    , 1013 (5th Cir. 1990).
    2
    No. 07-20684 and
    No. 07-20936
    had instructed lenders to make out checks to a third party, that both appellants
    had been involved with similar transactions in the past, and that Appellants
    profited from the disbursement of escrow funds at closing to their jointly-owned
    companies. Based on the strength and nature of this and other circumstantial
    evidence described in the record, it was reasonable for the jury to infer that
    Appellants knew of and had the specific intent to commit the charged crimes.
    Nathan and Hamilton also object to the “deliberate ignorance” instruction
    given to the jury, arguing that it did not require the jury to find that both of
    them possessed subjective awareness of the illegality. Because they did not
    object at trial, this court reviews for plain error. The instruction allowed the
    jury to find that the defendants had knowledge if jurors found that “the
    defendant deliberately closed his eyes to what would otherwise have been
    obvious to him” or “deliberately blinded himself to the existence of a fact.” This
    court has noted that these types of instructions should rarely be given, but can
    be justified where “a defendant claims a lack of guilty knowledge and the proof
    at trial supports an inference of deliberate indifference.”     United States v.
    Bieganowski, 
    313 F.3d 264
    , 289 (5th Cir. 2002) (internal quotation marks
    omitted).   Given the facts presented at trial, including the evidence that
    Appellants had participated in other similarly-executed land flip transactions,
    the Appellants cannot establish that the court’s use of this instruction was a
    marked departure from our past cases.             See, e.g., United States v.
    Lara-Velasquez, 
    919 F.2d 946
    , 952 (5th Cir. 1990).
    Nathan appeals the admission of evidence and the prosecutor’s closing
    argument regarding his immigration status. Because Nathan did not request
    a limiting instruction or object, we review for plain error only. Nathan had the
    burden of establishing that allegedly improper remarks in the closing argument
    were substantial and cast serious doubt on the correctness of the jury’s verdict.
    3
    No. 07-20684 and
    No. 07-20936
    United States v. Mares, 
    402 F.3d 511
    , 515 (5th Cir. 2005) (citing United States
    v. Virgen-Moreno, 
    265 F.3d 276
    , 290 (5th Cir. 2001)). Nathan also had to show
    that improper evidence was introduced and that “the need for [a limiting]
    instruction [was] obvious and the failure to give it [was] so prejudicial as to
    affect substantial rights of the accused.” United States v. Waldrip, 
    981 F.2d 799
    ,
    805 (5th Cir. 1993) (internal quotation marks omitted). On direct examination,
    Nathan described his marriage and reasons for coming to the United States.
    Hamilton and Nathan were both natives of Nigeria, married each other in the
    late 1970s, came to the United States in 1982, divorced in 1994, remarried
    American citizens, divorced those citizens in 2000 or 2001, gained American
    citizenship in 2001, and remarried one another in 2001. Even while divorced,
    they continued to have a close relationship. Nathan worked down the hall from
    Hamilton, co-owned two businesses with her, and recommended her to be the
    escrow agent for this transaction.      The relationship between Nathan and
    Hamilton, therefore, was central to the question whether they had knowledge
    of the conspiracy, and any error was invited by Nathan’s statements on direct
    examination. See United States v. Tullos, 
    868 F.2d 689
    (5th Cir. 1989).
    Finally, Nathan argues that the district court erred when it assessed the
    loss for sentencing purposes using the purchase price of the collateral in 1998
    instead of a 2000 bank appraisal. He did not object at the time of sentencing and
    therefore, this court reviews for plain error. The Application Note 3(E)(ii) to
    U.S.S.G. § 2B1.1 states that any loss amount shall be reduced by “the fair
    market value of the collateral at the time of sentencing” if the collateral has not
    been disposed of by that time. At the time of sentencing in 2007, there is no
    evidence that the property had been sold and no current appraisal was
    presented.
    4
    No. 07-20684 and
    No. 07-20936
    Under plain error review, the error must be obvious and “evident from a
    plain reading of the statute.” See United States v. Aderholt, 
    87 F.3d 740
    , 744
    (5th Cir. 1996). Assuming that the district court incorrectly used the 1998
    purchase price instead of the 2000 appraisal, the error was not clear and
    obvious.   Neither side points to any further guidance in the text of the
    Guidelines or any precedent that states whether a more recent figure is
    preferable when a current appraisal is not available. We have said, however,
    that where “the district court cannot achieve absolute certainty in determining
    the lenders’ losses . . . ‘[t]he court need only make a reasonable estimate of the
    loss.’” United States v. Goss, 
    549 F.3d 1013
    , 1019 (5th Cir. 2008) (quoting United
    States v. Holbrook, 
    499 F.3d 466
    , 468 (5th Cir. 2007)) (matching the language of
    both U.S.S.G. 2B1.1 app. n.2(C) (2001) and U.S.S.G. 2B1.1 app. n.3(C) (2007)).
    Because the 1998 purchase price was a reasonable estimate of the property’s
    value when no appraisal contemporaneous or near to the date of sentencing was
    available, the district court’s application of U.S.S.G. 2B1.1 was not plainly
    wrong.
    For the foregoing reasons, the judgments and sentences imposed by the
    district court are AFFIRMED.
    5