United States v. Radziszewski, Jacek ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1559
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACEK RADZISZEWSKI,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 CR 1200—Wayne R. Andersen, Judge.
____________
ARGUED SEPTEMBER 27, 2006—DECIDED JANUARY 24, 2007
____________
Before POSNER, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. After a seven-day trial, a jury
convicted Jacek Radziszewski of committing mail and
wire fraud in connection with a scheme to obtain real
estate loans through false representations. On appeal,
Radziszewski challenges the sufficiency of the evidence,
the district court’s exclusion of one of his proffered good-
faith defenses, and his sentence. As detailed below,
we find that the evidence was sufficient to support
Radziszewski’s conviction, and that the court’s exclusion
of Radziszewski’s good-faith argument relating to the
repayment of the loans was proper. Finally, the district
court’s factual findings at sentencing, which resulted in
enhancements for the defendant’s role in the offense and
2 No. 06-1559
the use of stolen identification, were not clearly erroneous.
Accordingly, we affirm.
I. BACKGROUND
In April 2004, Radziszewski and two associates, Kuba
Jasny and Andrzej Filipowicz, were indicted for using the
mail and wires in connection with a scheme to defraud
lending institutions of real estate loans in violation of 18
U.S.C. §§ 1341 and 1343. They were charged with paying
individuals with good credit histories to pose as buyers of
properties in Chicago and supplying false documenta-
tion to support the loan applications of the straw buyers.
According to the indictment, in August 2003, Radziszewski
and Jasny successfully orchestrated a straw buyer’s
purchase of a building located at 631 North Central Park
(“the North Central Park Property”), which was financed
by Rose Mortgage.1 Count One concerned a wire transfer
resulting from the subsequent assignment of the loan to
Washington Mutual Bank.
Further, the indictment alleged that in December 2003,
Radziszewski and Jasny attempted to resell the North
Central Park Property by asking co-defendant Filipowicz
to purchase the property using the name “Marian Plewa”
and to apply for a home loan from National City Mortgage.
Count Two charged Radziszewski, Jasny, and Filipowicz
with causing the interstate mailing of several documents,
including a fraudulent loan application for the North
Central Park Property bearing the name “Marian Plewa.”
1
Count One of the indictment also alleged that in August 2003,
Radziszewski assisted in a similar fraud involving a building
at 917 North Ridgeway in Chicago. Because the indictment
and evidence at trial related primarily to the North Central
Park Property, that property is the focus of our discussion.
No. 06-1559 3
Before trial, both Jasny and Filipowicz entered guilty
pleas, and Radziszewski moved to dismiss Count One.
Radziszewski contended that he could not have formed
the requisite intent to defraud both lenders involved in
financing the August and December purchases of the
North Central Park Property. He noted that Washington
Mutual Bank, the lender who financed the August trans-
action, was to be repaid with proceeds obtained upon the
December resale of the property. As a consequence,
Radziszewski maintained that he could not have intended
to deprive Washington Mutual Bank of funds, because
that lender would ultimately be reimbursed. The district
court rejected Radziszewski’s argument, and the case
proceeded to trial.
Several participants in the scheme testified at trial.
Ryszard Rutkowski, a Polish immigrant who could not
read, speak, or write in English, under a grant of immu-
nity, testified that he purchased the North Central Park
Property at Radziszewski’s direction in January 2003.
Although the home was purchased in Rutkowski’s name,
he stated that he did not provide any information for his
loan application. After the purchase, Rutkowski assisted
in making repairs to the building, and Radziszewski
paid Rutkowski $2000 for the use of his name.
In August 2003, Rutkowski sold the North Central Park
Property to Andrij Kripatskyy, an immigrant, who, like
Rutkowski, could neither read nor write in English. At
trial, Kripatskyy acknowledged that he came to the
United States from Ukraine on a tourist visa and over-
stayed his period of authorization. Kripatskyy testified
that he met the defendant after responding to an adver-
tisement stating that persons with good credit could
earn money in real estate without investing their own
money. In July 2003, Radziszewski took Kripatskyy to a
mortgage broker to sign forms required to obtain a loan.
The broker testified that Radziszewski paid him $4000 to
4 No. 06-1559
ensure that the loan was approved; Kripatskyy received
$8000 for his cooperation. As Kripatskyy sat silently, the
defendant filled out forms in support of the loan and
directed Kripatskyy to sign the forms without translation.
Among other things, Kripatskyy signed a loan application
in which the defendant falsely represented that
Kripatskyy worked at a company called Best Investments
and earned $70,000 a year. Additionally, the defendant
produced fake W-2s and bank account statements, and a
false appraisal, which inflated the value of the property
to $297,000 (approximately $100,000 more than its actual
value). The appraisal bore the signature of licensed
appraiser Bill Nold. However, Nold testified that al-
though he had appraised the property, he had actually
valued the home somewhere between $191,000 and
$203,000 and that the higher appraisal was a forgery.
An underwriter for the lender, Rose Mortgage Company,
testified that, relying on the false employment informa-
tion, account statements, and appraisal, she approved
the $237,600 loan issued to Kripatskyy, which enabled
him to purchase the North Central Park Property in
August 2003. At closing, Radziszewski told both Rutkow-
ski (the purported seller) and Kripatskyy (the straw
buyer) what and where to sign, as neither individual could
read the English documents. Rutkowski, Kripatskyy, and
Radziszewski were also informed that Rose Mortgage
Company would be assigning the loan to Washington
Mutual Bank.
By November, Radziszewski had begun preparations
for the December resale of the North Central Park Prop-
erty to co-defendant Andrzej Filipowicz for $349,000. Like
the previous straw buyers, Filipowicz spoke little English.
To procure a $279,000 loan from National City Mortgage,
the defendant took Filipowicz to meet a National City
Mortgage broker on two occasions. Before each meeting
with the broker, Radziszewski provided Filipowicz with
No. 06-1559 5
a driver’s license bearing the name “Marian Plewa,” in
whose name the property was to be purchased. The
driver’s license displayed the social security number
belonging to the real Marian Plewa, a resident of Palos
Park, Illinois, who had not authorized the use of his
personal information. Additionally, the defendant sup-
plied the broker with fraudulent documents, including
fake bank statements, pay stubs, and a fake appraisal
valuing the property at $300,000. During the meetings,
Radziszewski instructed Filipowicz to sign various docu-
ments without translating them into English. Filipowicz
was promised that a $5000 debt he owed to one of
Radziszewski’s associates would be forgiven in exchange
for his participation in the scheme.
On December 22, 2003, Jasny took Kripatskyy (pur-
ported seller) and Filipowicz (straw buyer) to the closing.
By that time, based on a bank’s discovery that the ac-
count number and balance provided on the loan applica-
tion did not correspond to a “Marian Plewa,” the Federal
Bureau of Investigation (FBI) had learned of the scheme.
After the parties completed their transaction, they were
arrested. Radziszewski, who did not attend the closing,
was arrested at a later date. At that time, he possessed a
host of items linking him to the scheme, including cell
phones used to call Filipowicz before the December clos-
ing, the contact information for real estate appraiser Bill
Nold, and papers showing that he owned Illinois Best
Investments, the purported employer of Kripatskyy and
Filipowicz.
A jury found the defendant guilty on both counts. The
district court sentenced the defendant to 33 months’
imprisonment based on a loss amount of $115,979, the
defendant’s role as a leader in the criminal activity, and
the unauthorized use of stolen identification during the
6 No. 06-1559
offense.2 The defendant now appeals both his conviction
and sentence.
II. ANALYSIS
A. Sufficiency of the Evidence
Radziszewski first challenges the sufficiency of the
evidence in support of his mail and wire fraud convictions.
When faced with such a challenge, we will only reverse
a defendant’s conviction if, viewing all evidence in the
light most favorable to the government, no rational trier
of fact could have found the defendant guilty of the charges
beyond a reasonable doubt. United States v. Olson, 450
F.3d 655, 664 (7th Cir. 2006). To prove mail or wire fraud,
the prosecution must demonstrate: “(1) the defendant’s
participation in a scheme to defraud; (2) the defendant’s
intent to defraud; and (3) the defendant’s use of the mail
(for 18 U.S.C. § 1341) or wires (for 18 U.S.C. § 1343) in
furtherance of the fraudulent scheme.” United States v.
Davuluri, 239 F.3d 902, 906 (7th Cir. 2001). Radziszewski
does not dispute the existence of a scheme to defraud
lenders, he simply disclaims any intentional participation
in that scheme by portraying himself as an innocent
translator or mere associate of those involved in the
scheme.
The evidence at trial, however, demonstrated that
Radziszewski was not just a knowing participant, but a
leader in the scheme. According to trial testimony,
Radziszewski selected straw buyers based on their
credit histories, took them to meetings with mortgage
brokers, supplied the brokers with the critical documents
2
The district court consulted the 2004 edition of the United
States Sentencing Guidelines Manual (Guidelines or U.S.S.G.) in
sentencing Radziszewski.
No. 06-1559 7
for obtaining loan approval, told the buyers where to
sign forms, bribed a broker to increase the probability of
loan approval, and even provided a straw buyer the
identification required to assume a stolen identity. Fur-
ther, the documentary evidence showed that funds gained
at the August closing were deposited into an account in
the defendant’s control.
The defendant urges us to discount this mountain of
evidence by impugning the credibility of the trial wit-
nesses. For instance, he argues that Kripatskyy’s testi-
mony cannot be trusted because Kripatskyy was an illegal
alien, testified under a grant of immunity, and made
seemingly incons is tent statements regarding
Radziszewski’s participation in the scheme. But “[i]t is
not our role, when reviewing the sufficiency of the evi-
dence, to second-guess a jury’s credibility determinations.”
United States v. Buchmeier, 255 F.3d 415, 420 (7th Cir.
2001) (quoting United States v. McGee, 189 F.3d 626, 630
(7th Cir. 1999)). Accordingly, “we reverse [credibility]
determinations on appeal only under exceptional circum-
stances, such as ‘where it was physically impossible for the
witness to observe that which he claims occurred, or
impossible under the laws of nature for the occurrence to
have taken place at all.’ ” United States v. Ray, 238 F.3d
828, 834 (7th Cir. 2001) (quoting United States v. Wil-
liams, 216 F.3d 611, 614 (7th Cir. 2000)). Radziszewski
does not contend that this case presents any such excep-
tional circumstance. And, we decline Radziszewski’s
invitation to reweigh the credibility of the trial witnesses
and affirm the jury’s verdict.
B. Good-Faith Defense
The defendant next complains that the district court
improperly excluded his good-faith defense. We review a
district court’s evidentiary rulings, such as a decision to
8 No. 06-1559
exclude a particular theory of defense, for abuse of discre-
tion. See United States v. Lamarre, 248 F.3d 642, 646-47
(7th Cir. 2001).
Radziszewski initially contends that the district court
erred in preventing him from arguing that “it would be
legally impossible to form the required specific intent to
defraud both Washington Mutual and National City
Mortgage in the same scheme . . . because Washington
Mutual would have been paid out of the proceeds from
National City . . . .” We are not persuaded. It is well
settled that a defendant’s ultimate intention to pay off
a debt obtained fraudulently is irrelevant to the intent
to obtain the money through deceptive means. See United
States v. Masquelier, 210 F.3d 756, 759 (7th Cir. 2000)
(The defendant’s “ultimate intention to make good on the
contract is irrelevant to his intent to obtain government
money to which he was not entitled through deceptive
means. . . . Fraud is complete when the defendant obtains
money by false pretenses.”). Here, the fraud against
Washington Mutual Bank was complete in August 2003,
and Radziszewski’s intention to repay Washington Mutual
Bank four months later can undo neither the fraud nor
injury caused by wrongly depriving Washington Mutual
Bank of its funds from August until December. Therefore,
the trial court properly excluded this defense.
The defendant further alleges that he was precluded
from presenting other good-faith defenses, but he misrep-
resents the record. The trial court’s ruling was limited
to Radziszewski’s argument that his intent to repay
Washington Mutual Bank somehow negated any intent to
defraud. Indeed, the court permitted the defendant to
invoke other good-faith arguments, including his argu-
ment that he acted as an innocent translator and that
other parties were responsible for any fraud.
No. 06-1559 9
C. The District Court’s Loss Calculation
Radziszewski also challenges his sentence, arguing that
the court relied on incorrect loss calculations. Because
loss calculations are reviewed for clear error, see United
States v. Wasz, 450 F.3d 720, 726 (7th Cir. 2006), we will
only reverse if we are left with “a definite and firm convic-
tion that a mistake has been made.” United States v.
Schaefer, 384 F.3d 326, 331 (7th Cir. 2004) (internal
quotation marks and citations omitted).
The Guidelines range applicable here depends on the
actual and intended loss due to Radziszewski’s fraud.
United States v. Lane, 323 F.3d 568, 585 (7th Cir. 2003).
Actual loss is “the reasonably foreseeable pecuniary harm
that resulted from the offense.” U.S.S.G. § 2B1.1 cmt.
n.3(A)(i). By contrast, intended loss “(I) means the pecuni-
ary harm that was intended to result from the offense; and
(II) includes intended pecuniary harm that would have
been impossible or unlikely to occur . . . .” U.S.S.G. § 2B1.1
cmt. n.3(A)(ii). The district court was only required to
make “a reasonable estimate of the loss.” See U.S.S.G.
§ 2B1.1 cmt. n.3(C). And, given the district court’s “unique
position to assess the evidence and estimate the loss
based on that evidence,” its loss calculations are due a
degree of deference. Id. To succeed in his appeal, then, the
defendant must show that the court’s loss calculations
“[were] not only inaccurate but outside the realm of
permissible computations.” United States v. Lopez, 222
F.3d 428, 437 (7th Cir. 2000) (quoting United States v.
Hassan, 211 F.3d 380, 383 (7th Cir. 2000)).
The district court arrived at an actual loss amount of
$115,979 and an intended loss of $108,500. As directed by
Application Note 3(A) to § 2B1.1 of the Guidelines, the
court adopted the larger value (i.e., the actual loss
amount) as its loss calculation. Because that figure fell
between $70,000 and $120,000, the district court increased
10 No. 06-1559
the defendant’s offense level by eight. See U.S.S.G.
§ 2B1.1(b)(1). To sustain the district court’s eight-level
increase, we need only conclude that the loss amount
exceeded $70,000. See id. So, if the district court calcu-
lated either the actual or intended loss amount correctly
(both of which exceeded $70,000), we will affirm.
We begin by examining the district court’s actual loss
calculation. The court arrived at its actual loss amount
by accepting Washington Mutual Bank’s representation
that it sustained $115,979 in losses on the $237,600 loan
it issued in August 2003. Although Washington Mutual
Bank recouped $170,500 from the foreclosure sale of the
property, its loss calculation included interest charges
and attorney’s fees. Radziszewski objected to the actual
loss amount because Washington Mutual Bank did not
itemize its losses, thereby making it virtually impos-
sible for him to dispute the loss calculation. Although
Radziszewski makes a compelling argument that the
district court’s wholesale adoption of Washington Mu-
tual Bank’s actual loss figure, without testing the ac-
curacy of that figure, could have resulted in an inflated
loss amount, we affirm because the district court’s in-
tended loss calculation, which also exceeded the $70,000
threshold, was not clearly erroneous.
The district court arrived at the $108,500 intended loss
amount by deducting the price realized upon foreclosure
of the North Central Park Property ($170,500) from the
amount of the loan that National City Mortgage intended
to issue for the December 2003 purchase ($279,000).
Radziszewski argues that the intended loss amount
should have been based on the highest April 2003 ap-
praisal of the home ($203,000) and an assumption that
the home appreciated at a rate of 1% per month. Based on
Radziszewski’s assumptions, he arrives at an intended
loss of $60,200. The flaw with the defendant’s argument
is that he cannot show that his loss estimate is based on a
No. 06-1559 11
superior measure of the property’s value in December
2003. Indeed, the defendant’s intended loss calculation
depends on two speculative values—an appraised value
of the home and an estimated rate of appreciation. There
was no error in the district court’s decision to base its
loss calculation on a certain figure (the price realized on
foreclosure) rather than a sum ascertained by conjecture.
Cf. U.S.S.G. § 2B1.1 cmt. n.3(E) (stating that in cases
involving collateral, a victim’s loss calculation should
be reduced by the amount the victim actually recovered
from the disposition of collateral). Because the district
court’s intended loss calculation exceeded the $70,000
threshold, we affirm the court’s eight-level increase.
D. The Role in the Offense and Use of Stolen Iden-
tity Enhancements
Finally, the defendant argues that the district court
erred in applying enhancements for an “aggravating role”
(as a leader or an organizer) under U.S.S.G. § 3B1.1
and for using a stolen identity under U.S.S.G.
§ 2B1.1(b)(10)(C)(i). We review both of these factual
determinations for clear error. Wasz, 450 F.3d at 726.
As noted above, there was ample evidence in the record
to show that the defendant was an organizer or a leader
of this scheme. In conjunction with Jasny, the defendant
identified suitable straw buyers and directed their every
move, from signing fraudulent loan agreements to as-
suming false identities. The district court certainly did
not err in increasing Radziszewski’s offense level by two
for his role in the offense. See U.S.S.G. § 3B1.1(c) (instruct-
ing sentencing courts to increase a defendant’s offense
level by two if the defendant was an organizer, leader,
manager, or supervisor of a criminal activity involving
fewer than five participants).
12 No. 06-1559
The defendant also challenges the enhancement for the
theft and misuse of Marian Plewa’s identity. In doing so,
however, he does not dispute the fact that Plewa’s
identity was stolen and used. Nor does he dispute the
applicability of the enhancement for “the unauthorized
transfer or use of any means of identification unlawfully
to produce or obtain any other means of identification” on
this factual record. U.S.S.G. § 2B1.1(b)(10)(C)(i). Indeed,
he recognizes that the § 2B1.1(b)(10)(C)(i) enhancement
applies when “[a] defendant obtains an individual’s name
and social security number from a source . . . and obtains
a bank loan in that individual’s name.” See U.S.S.G.
§ 2B1.1, cmt. n.9(C)(ii)(I). His sole argument, then, is that
the enhancement should only apply to Filipowicz, the one
who actually posed as Marian Plewa.
Given that the defendant directed Filipowicz to pose as
Plewa and provided Filipowicz the means to do so, his
argument runs counter to logic and reflects a misunder-
standing of the Guidelines. The Guidelines specifically
provide that in increasing a defendant’s offense level based
on specific offense characteristics, a sentencing court
should consider “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured,
or willfully caused by the defendant.” U.S.S.G.
§ 1B1.3(a)(1)(A) (emphasis added). Therefore, by increas-
ing the defendant’s offense level because the defendant
had directed his associate to assume a false identity, the
district court was conforming to the Guidelines’ directive,
and the district court did not clearly err in applying the
identity theft enhancement.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment
of the district court.
No. 06-1559 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-24-07