United States v. Felix Daniel ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2399
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FELIX DANIEL,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 743 — Joan B. Gottschall, Judge.
ARGUED NOVEMBER 7, 2013 — DECIDED APRIL 15, 2014
Before BAUER, MANION, and SYKES, Circuit Judges.
BAUER, Circuit Judge. A jury found defendant-appellant
Felix Daniel (“Daniel”) guilty of one count of wire fraud in
violation of 18 U.S.C. § 1343, and three counts of mail fraud in
violation of 18 U.S.C. § 1341. Daniel filed post-trial motions
seeking: (1) a new trial based on the district court’s refusal
to instruct the jury that there must be specific unanimity on at
least one false representation, and (2) judgment of acquittal
based on the insufficiency of the evidence. The district court
2 No. 13-2399
denied the motions and entered a final judgment of conviction.
Daniel timely appealed to this court. We affirm the ruling of
the district court.
I. BACKGROUND
The government charged Daniel with three counts of mail
fraud and one count of wire fraud based on his involvement in
a failed business endeavor called Rym Technology Holdings,
LLC (“Rymtech”). Rymtech was a mortgage reduction pro-
gram that purported to provide financial assistance to home-
owners facing foreclosure. Daniel, in his role as Rymtech’s Vice
President of Sales and Marketing, would recruit homeowners
to place their property in the Rymtech program and arrange a
closing at which the homeowners would sign over the title of
their property to straw purchasers called “A buyers.” Home-
owners were told that their home would be placed in a trust
and that the A buyers would obtain financing from mortgage
lenders to pay off the mortgage on the property. Daniel
instructed Rymtech loan officers to prepare fraudulent loan
applications on behalf of the A buyers in order to acquire
financing for each property.
Rymtech promised homeowners that after five years, they
would regain title to their properties free and clear of any
mortgage. This was an empty promise; even if Rymtech had
invested all of the homeowners’ equity, Rymtech would have
to receive implausibly high rates of return in order to make the
necessary mortgage payments. In fact, the money Rymtech
obtained from homeowners’ equity checks was primarily used
to operate the company itself; only a small portion of the funds
was actually invested. When the program’s finances started to
No. 13-2399 3
disintegrate, Daniel nevertheless continued to recruit home-
owners and to choose which properties would or would
not receive payments. Ultimately, Rymtech had insufficient
revenue to cover its mortgage obligations, and the program
failed.
Daniel’s indictment charged that on November 19, 2004, he
caused a transfer of funds over interstate wires representing
the proceeds of a mortgage loan for an A buyer’s purchase of
a homeowner’s property. Three additional counts charged
Daniel with sending letters, from Rymtech to homeowners,
through the United States mail. These letters were used to
convince homeowners that their properties remained secure
and that Rymtech was continuing to make mortgage payments.
A jury trial on all four counts began on March 11, 2013.
At trial, homeowners testified that Daniel persuaded them
to put their property in the program and that he was present
at meetings where they signed over the title to their property
to Rymtech. The homeowners also testified that Rymtech
representatives told them that their homes would be safe and
placed in a trust. When some homeowners discovered that
their homes were being foreclosed or that their property taxes
had not been paid, Daniel assuaged their concerns by assuring
them that their homes were safe.
The homeowners testified that in March and November
2006, they received letters in the mail from Rymtech regarding
the status of their properties. These letters directed homeown-
ers to continue making payments to Rymtech and falsely
represented that Rymtech was making payments on their
mortgages and would continue to do so. One homeowner
4 No. 13-2399
testified that she exchanged emails with Daniel in late 2006 and
early 2007, asking him for an update on her home. Although
Daniel was aware at this time that the Rymtech program was
failing, Daniel’s reply email stated, “[w]e should have money
any day now, very, very soon, looking forward to getting
[things] back on [track] and resolved.”
Dimona Ross (“Ross”), a loan officer hired by Daniel,
testified that Daniel played an integral role in recruiting
properties for participation in the program and matching the
properties with A buyers. Daniel told Ross that he created an
investment strategy that would pay off the mortgages and
claimed a patent was pending on that system; Ross was thus
under the impression that Daniel developed and ran the
Rymtech program. Daniel instructed Ross to falsify loan
applications for Rymtech, including misrepresenting investors’
intentions for the properties to be purchased and fraudulently
listing properties as second homes or investment properties.
Occasionally, Daniel gave Ross “manufactured” leases to
submit with the loan applications that listed fake tenants and
falsely represented that an A buyer was collecting rent on the
property. Daniel directed other Rymtech loan officers to
prepare similar fraudulent applications for properties en-
trusted to the program as well.
Two A buyers who spoke directly with Daniel testified that
Daniel recruited them to participate in the Rymtech program,
telling them that their credit would be used to help struggling
homeowners. Daniel told A buyers that they would not have
to make any of the mortgage payments themselves. The A
buyers purchased properties from the Rymtech program and
received $1,500 per transaction. Based on the fraudulent loan
No. 13-2399 5
applications created at Daniel’s direction, mortgage lenders
would wire funds to the title company in order to close on the
A buyers’ property acquisitions. At trial, a senior special
investigator from the Federal Reserve Bank of New York
confirmed that on November 19, 2004, a wire transfer was
initiated from Eva Breckenridge, one of the testifying A buyers,
to a title company. The A buyers stated that when they
received calls from lenders informing them of late payments on
the mortgages, Daniel told them Rymtech was waiting for
returns on its investments to make the payments.
The owner of a property management company, Anthony
Brown (“Brown”), testified that his company took over
property management for Rymtech. Brown explained that rent
payments from the homeowners and money wired from
Rymtech to the property management company was used to
make monthly mortgage payments on the properties. Brown
testified that Rymtech failed to pay taxes and insurance on the
properties, and that by late 2005, Rymtech failed to wire
enough funds to cover the monthly mortgage payments.
Nonetheless, Daniel continued to recruit homeowners and
began directing Brown’s company to make mortgage payments
only on certain properties. Whenever Brown’s company
received complaints from homeowners, they were directed to
Daniel. By the end of 2006, Brown’s company was forced to
cease operations with Rymtech due to a lack of funding.
Additional evidence at trial established that Rymtech was
registered as an LLC in Michigan, with Daniel listed as a
registered agent and member-manager. A provisional patent
application filed by Rymtech entitled “mortgage financial
intervention system and method” identified Daniel as an
6 No. 13-2399
inventor. An FBI employee with 21 years of experience as a
financial advisor testified as an expert about Rymtech’s
investment strategy. He stated that in order for Rymtech to
have kept its promise to pay off homeowners’ mortgages
within five years, the program would have needed to invest
all of the program’s funds and realize an implausibly high
compounded annual growth rate of return. The expert further
testified that he analyzed Rymtech’s bank records and deter-
mined that approximately 85% of the program’s funds was
spent on operations; only approximately 6% was invested.
During the final jury instruction conference, the parties
discussed the government’s proposal of a jury instruction for
proof of a scheme to defraud prepared by the Committee on
Federal Criminal Jury Instructions of the Seventh Circuit.
When a defendant is charged with violations of 18 U.S.C. §§
1341 and/or 1343, the Pattern Criminal Jury Instructions of the
Seventh Circuit (2012) provide for the following:
In considering whether the government has proven
a scheme to defraud, the government must prove
that one or more of the [false or fraudulent pre-
tenses, representations or promise] [bribes or
kickbacks] charged in the portion of the indictment
describing the scheme be proved beyond a reason-
able doubt. The government, however, is not re-
quired to prove all of them.
Daniel requested Pattern Criminal Jury Instruction 4.04,
requiring the jury to agree unanimously on a specific fraudu-
lent representation, pretense, promise, or act. The government
objected, arguing that unanimity is only required for the
No. 13-2399 7
existence of the scheme itself and not in regard to a specific
false representation. The district court agreed with the govern-
ment and declined to include Pattern Criminal Jury Instruction
4.04. Daniel objected, but did not present any other instruction
regarding unanimity. The court overruled Daniel’s objection.
The jury returned a guilty verdict against Daniel on all
counts. After trial, Daniel filed a motion requesting a new trial,
arguing that the court erred when it failed to give the jury a
specific unanimity instruction. Daniel filed a separate motion
for judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29 arguing that the evidence presented at trial was
insufficient for a jury to find him guilty beyond a reasonable
doubt. The district court denied both post-trial motions and
entered a final judgment of conviction.
II. DISCUSSION
A. Specific Unanimity Instruction
On appeal, Daniel contends that a new trial should be
granted based upon the district court’s denial of his request for
a specific unanimity instruction. “We review de novo whether
jury instructions accurately summarize the law, but give the
district court substantial discretion to formulate the instruc-
tions provided that the instructions represent a complete and
correct statement of the law.” United States v. Dickerson, 705
F.3d 683, 688 (7th Cir. 2013) (internal quotations omitted). If we
determine that the instructions accurately summarize the law,
this court reviews the district court’s phrasing of the instruc-
tion for abuse of discretion. Id. Reversal is warranted only
where the reviewing court is “left with the definite and firm
8 No. 13-2399
conviction that a mistake has been committed.” United States v.
Reese, 666 F.3d 1007, 1021 (7th Cir. 2012).
Wire fraud under § 1343 requires the government to prove
beyond a reasonable doubt that Daniel: (1) participated in a
scheme to defraud, (2) intended to defraud, and (3) used
interstate wires in furtherance of the fraudulent scheme. United
States v. Sheneman, 682 F.3d 623, 628 (7th Cir. 2012). The same
elements must be proved to establish mail fraud under § 1341,
except that the United States mail system, rather than interstate
wires, must have been used in furtherance of the fraud for the
third element of the scheme. United States v. Seidling, 737 F.3d
1155, 1159 (7th Cir. 2013).
Here, the district court instructed the jury that the govern-
ment bore the burden to prove the essential three elements of
mail and wire fraud beyond a reasonable doubt for each count
and tendered the Pattern Criminal Jury Instruction for 18
U.S.C. §§ 1341 and 1343. Daniel argues that the jury should
have been instructed with Pattern Criminal Jury Instruction
4.04 requiring unanimity as to a specific fraudulent act or
representation. We disagree.
The Supreme Court has held that while a jury’s unanimity
is required in regard to each principal element of a criminal
offense, “a federal jury need not always decide unanimously
which of several possible sets of underlying brute facts make
up a particular element, say, which of several possible means
the defendant used to commit an element of the crime.”
Richardson v. United States, 526 U.S. 813, 817 (1999) (emphasis
added). Although this court has yet to specifically address the
use of specific unanimity instructions on a scheme to defraud,
No. 13-2399 9
three of our sister circuits have held that a single false repre-
sentation or omission used to execute a fraudulent scheme is
properly characterized as a means to executing the scheme,
rather than one of the necessary elements of the mail or wire
offense that do require unanimity. United States v. LaPlante, 714
F.3d 641, 647 (1st Cir. 2013) (“A jury, faced with divergent
factual theories in support of the same ultimate issue, may
decide unanimously … that the government has proven a
scheme to defraud even if they may not be unanimous as to the
precise manner in which it occurred.”); United States v. Rice, 699
F.3d 1043, 1048 (8th Cir. 2012) (Jurors were properly instructed
“that they needed to agree that one of the means had been
used [to defraud victims], but that not all needed to agree on
the same one.”); United States v. Lyons, 472 F.3d 1055, 1068 (9th
Cir. 2007) (holding that in a scheme to defraud, “the jury need
not be unanimous on the particular false promise”).
Here, the three elements of wire fraud are clearly articu-
lated in the criminal statute itself: (1) an intent to defraud, (2)
participation in a scheme to defraud, and (3) the use of
interstate wires in furtherance of the scheme to defraud.
Sheneman, 682 F.3d at 628. We agree with the reasoning of these
circuits and find that the fraudulent representations or omis-
sions committed by Daniel were “underlying brute facts” of
the verdict against him: that is, they were merely the means he
used to commit an element of the crime. We conclude that the
instructions used in this case accurately conveyed the law and
were all that was necessary. Thus, the district court did not
abuse its discretion when it declined to give the additional
specific unanimity instruction Daniel requested.
10 No. 13-2399
B. Sufficiency of the Evidence
Daniel also moves for judgment of acquittal arguing that
there was insufficient evidence presented at trial to establish
his mail fraud and wire fraud convictions. He first contends
that the government failed to present sufficient evidence at
trial showing he had the requisite criminal intent to commit
fraud via interstate wires or the United States mail system.
Daniel argues that the evidence at trial shows that his involve-
ment with Rymtech was limited to the “front end” of the
business, namely marketing and sales, and that he did not
have knowledge of or participate in the management of the
program’s accounts or Rymtech’s investment strategy. Daniel
claims that the government’s witness, Ross, was not credible
and that his guilt was based on mere suspicion and specula-
tion. We disagree.
The element of intent in a scheme to defraud requires “a
wilful act by the defendant with the specific intent to deceive
or cheat, usually for the purpose of getting financial gain for
one’s self or causing financial loss to another.” Sheneman, 682
F.3d at 629 (quoting United States v. Howard, 619 F.3d 723, 727
(7th Cir. 2010)). “[S]pecific intent to defraud may be estab-
lished by circumstantial evidence and by inferences drawn
from examining the scheme itself.” Id. at 727.
At trial, the government presented testimony from wit-
nesses who spoke directly with Daniel on numerous occasions,
including homeowners that participated in the Rymtech
program; two A buyers; loan processor Ross; and Brown, the
head of the property management company working with
Rymtech. Their testimony made apparent that Daniel played
No. 13-2399 11
a crucial role in inducing homeowners to enter the scheme and
keeping them in the program when they became concerned
about the efficacy of the program. The expert testimony from
the FBI agent with experience in financial advising solidified
what Daniel already knew: that it was a practical impossibility
for his investment strategy to succeed even if all of the home-
owners’ equity had been invested.
Physical evidence presented by the government included
bank records, agreements signed by Daniel, letters sent by
Rymtech to homeowners, print-outs of portions of the Rymtech
website claiming that homeowners “absolutely” could not lose
their homes in the program, and public records identifying
Daniel as the “inventor” of the Rymtech investment strategy
as well as Rymtech’s registered agent and member-manager.
Combined with the witnesses’ testimony, the evidence at trial
showed that Daniel was aware of Rymtech’s financial prob-
lems and wilfully misrepresented that he had a sound invest-
ment strategy that would pay off the mortgages on time. While
Daniel argues that a person of ordinary intelligence would not
have known that Rymtech’s investment strategy was likely
to fail, it was reasonable for the jury to infer that Daniel was
aware that the small percentage of equity actually invested by
Rymtech would not produce enough returns to pay off the
outstanding mortgage payment obligations. Viewing the
evidence in the light most favorable to the government, there
was ample circumstantial evidence from which a reasonable
jury could find that Daniel wilfully deceived homeowners and
lenders.
Daniel also argues there was insufficient evidence to prove
that he personally caused letters to be mailed to homeowners.
12 No. 13-2399
However, the jury is not required to find that Daniel personally
mailed the letters, but rather that the use of the United States
mail system was reasonably foreseeable to him and that an
actual mailing occurred in furtherance of the scheme. United
States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995). Evidence at
trial established Daniel’s intimate involvement with the
Rymtech program from the recruitment of homeowners and
A buyers to the management of the program’s dwindling
funds. Combined with homeowners’ testimony regarding
Daniel’s communication with them via phone and email
specifically pertaining to the mailed letters, there was sufficient
evidence for the jury to conclude that it was reasonably
foreseeable to Daniel that the United States mail system would
be used to deliver letters to homeowners in furtherance of the
scheme.
In sum, abundant evidence at trial established that Daniel
was the primary spokesman at Rymtech meetings, was
occasionally present at closings, and signed documents on
behalf of Rymtech, including fraudulent loan applications
prepared at his direction. Testimony showed that Daniel
repeatedly made false or misleading statements to homeown-
ers before and after placing their homes in the Rymtech
program, even after he was aware of the program’s failing
investment strategy. We therefore conclude that the direct and
circumstantial evidence presented at trial was more than
sufficient to support the jury’s inference that Daniel deliber-
ately misrepresented Rymtech’s financial situation in order to
defraud homeowners and lenders through the use of the
United States mail and interstate wires.
No. 13-2399 13
III. CONCLUSION
For the foregoing reasons, the decision of the district court
is AFFIRMED.