United States v. Jessica Arong O'Brien ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1004
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESSICA ARONG O’BRIEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 17-cr-00239-1 — Thomas M. Durkin, Judge.
____________________
ARGUED FEBRUARY 19, 2020 — DECIDED MARCH 13, 2020
____________________
Before WOOD, Chief Judge, and FLAUM and RIPPLE, Circuit
Judges.
FLAUM, Circuit Judge. A jury found Jessica A. O’Brien
guilty of both bank fraud and mail fraud affecting a financial
institution based on her participation in a 2004-to-2007 mort-
gage fraud scheme. She appeals her convictions, arguing that
the charges against her were duplicitous and that under a
properly pled indictment the statute of limitations would
have barred three of the four alleged offenses. She also argues
2 No. 19-1004
that the district court should not have admitted evidence of-
fered to prove those time-barred offenses and that there was
insufficient evidence to support the jury’s guilty verdict.
We affirm. The government appropriately acted within its
discretion to allege an overarching scheme to commit both
bank fraud and mail fraud affecting a financial institution.
Each count included an execution of the fraudulent scheme
within the applicable ten-year statute of limitations, and the
jury’s guilty verdict rested upon properly admitted and suffi-
cient evidence of the charged offenses.
I. Background
On April 11, 2017, a grand jury returned a two-count in-
dictment charging O’Brien with mail fraud in violation of 18
U.S.C. § 1341 (Count I) and bank fraud in violation of 18
U.S.C. § 1344 (Count II). Both counts alleged a 2004-to-2007
scheme in which O’Brien misrepresented her income and lia-
bilities to cause lenders to issue and refinance loans related to
two investment properties O’Brien owned on the south side
of Chicago: one at 625 West 46th Street (the “46th Street prop-
erty”), and another at 823 West 54th Street (the “54th Street
property”). During the alleged scheme, O’Brien was a li-
censed attorney with a background and experience in the real
estate industry, including as a registered loan originator,
mortgage consultant, licensed real estate broker, and owner
of O’Brien Realty LLC, a licensed Illinois real estate company.
The indictment alleged that the scheme was comprised of
four transactions: (1) in 2004, O’Brien “fraudulently obtained
mortgage loan proceeds to purchase” the 46th Street property
by submitting mortgage documents with false statements re-
garding her income and liabilities; (2) in 2005, O’Brien, with
No. 19-1004 3
co-defendant Maria Bartko as the loan originator, “fraudu-
lently refinanced [O’Brien’s] mortgage loans” on the 46th
Street and 54th Street properties by submitting applications
with false statements regarding O’Brien’s income and em-
ployment; (3) in 2006, O’Brien “fraudulently obtained a com-
mercial line of credit” by submitting an application with false
statements about her realty company’s revenue and profit
“and used those loan proceeds to maintain the 46th Street and
54th Street properties”; and (4) in 2007, O’Brien and Bartko
“agreed that O’Brien would sell the 46th Street and 54th Street
properties to Bartko” using “Buyer A,” Christopher Kwan, as
“a straw buyer whom O’Brien and Bartko knew would be
fraudulently qualified for mortgage loans.” The indictment
also alleged that O’Brien and Bartko knew “that false infor-
mation would be submitted to lenders, including Citibank,
N.A., to qualify [Kwan] for the mortgage loans.” Some of her
misrepresentations were made on HUD-1 forms (as the name
suggests, furnished by the U.S. Department of Housing and
Urban Development), which detail the costs and fees associ-
ated with a mortgage loan and are used in closing a property
sale. See United States v. Bouchard, 828 F.3d 116, 121 n.2 (2d Cir.
2016).
Within each count, the indictment charged only one exe-
cution of the scheme: In Count I, the indictment alleged that
on April 16, 2007, O’Brien and Bartko mailed a payoff check
relating to the purchase of the 46th Street property; and in
Count II, the indictment alleged that also on April 16, 2007,
O’Brien caused Citibank, N.A. (“Citibank”), a financial insti-
tution, to provide $73,000 to fund a mortgage for Kwan’s pur-
chase of the 46th Street property. The indictment described
the 2004, 2005, and 2006 transactions as part of an overarching
4 No. 19-1004
scheme rather than as separate executions of mail or bank
fraud.
At trial, the government presented evidence that O’Brien
had falsely represented her income and liabilities and made
other misrepresentations and omissions when buying, refi-
nancing, and maintaining the 46th Street and 54th Street prop-
erties. After the jury found O’Brien guilty on both counts and
the district court denied O’Brien’s post-trial motions, O’Brien
appealed.
II. Discussion
O’Brien argues that the district court erred by denying (1)
her motions to dismiss the indictment based on duplicity and
the statute of limitations, and (2) her motions for judgment of
acquittal and a new trial based on the insufficiency of the ev-
idence.
A. Duplicity and Statute of Limitations
We review de novo the district court’s denial of O’Brien’s
motions to dismiss the indictment on grounds of duplicity
and the statute of limitations. See United States v. McGowan,
590 F.3d 446, 456 (7th Cir. 2009) (statute of limitations); see also
United States v. Pansier, 576 F.3d 726, 734 (7th Cir. 2009) (du-
plicity).
1. Duplicity
The district court did not err in denying O’Brien’s motion
to dismiss based on duplicity because each count of the in-
dictment, “‘fairly interpreted[,]’ alleges a ‘continuing course
of conduct, during a discrete period of time.’” United States v.
Davis, 471 F.3d 783, 790–91 (7th Cir. 2006) (quoting United
States v. Berardi, 675 F.2d 894, 898 (7th Cir. 1982)). A count is
No. 19-1004 5
duplicitous if it “charges two or more distinct offenses
within” the count. United States v. Miller, 883 F.3d 998, 1003
(7th Cir. 2018) (citation omitted). A count is not duplicitous,
however, if it charges the commission of a single offense
through different means, Fed. R. Crim. P. 7(c)(1), or if it
charges acts that “comprise a continuing course of conduct
that constitutes a single offense,” Miller, 883 F.3d at 1003 (ci-
tation omitted).
The mail and bank fraud statutes prohibit schemes to de-
fraud, see 18 U.S.C. §§ 1341 & 1344, which can include a
“broad range of conduct,” United States v. Doherty, 969 F.2d
425, 429 (7th Cir. 1992). “Schemes to defraud … often are
multi-faceted and therefore the various means used in com-
mitting the offense may be joined without duplicity.” United
States v. Zeidman, 540 F.2d 314, 318 (7th Cir. 1976). Under the
mail and bank fraud statutes, “for each count of conviction,
there must be an execution” of the scheme to defraud, but
“the law does not require the converse: each execution need
not give rise to a charge in the indictment.” United States v.
Hammen, 977 F.2d 379, 383 (7th Cir. 1992). The government
has the discretion to “allege only one execution of an ongoing
scheme that was executed numerous times.” Id.
The indictment alleged a single scheme to defraud lenders
that consisted of four related transactions in which O’Brien
used lies and concealment to obtain money from lenders for
the 46th Street and 54th Street properties and for her own per-
sonal gain. Specifically, the indictment alleged that O’Brien
lied to lenders to: (1) buy the 46th Street property in 2004; (2)
refinance loans on the 46th Street and 54th Street properties
in 2005; (3) obtain a loan to maintain the 46th Street and 54th
6 No. 19-1004
Street properties in 2006; and (4) sell the 46th Street and 54th
Street properties in 2007.
O’Brien insists that “the quartet of isolated and discon-
nected transactions involving different times, people, types of
transactions, different lenders and different alleged false ma-
terial statements gives rise to the clear conclusion that there
was no single continuous scheme to defraud.” For example,
O’Brien asserts that the government contended that she
falsely certified that the 46th Street property was her primary
residence, but the indictment made no similar allegations re-
garding her 54th Street purchase. She also emphasizes that the
four transactions involved different parties, and that neither
Citibank nor its wholly-owned subsidiary and mortgage
lending arm, CitiMortgage, was involved in three of the trans-
actions. O’Brien therefore contends that “[t]he four alleged
transactions are so different and distinct that the only com-
monality is ‘financial gain’ or something equally general.”
The relevant transactions, however, all involved: (1) at
least one of a pair of investment properties on Chicago’s south
side (the 46th Street and 54th Street properties); (2) O’Brien;
(3) lies in loan documents; (4) the same class of victims (lend-
ers); and (5) the same goal of obtaining financing related to
the two properties for personal enrichment. The government
acted appropriately within its discretion to charge the trans-
actions as different means for carrying out an overarching
scheme to defraud. Cf. Davis, 471 F.3d at 791 (holding there
was no duplicity where indictment charged “ongoing and
continuous course of conduct, accomplished through three
different methods,” repeated numerous times over the years,
all involving the same defendant); United States v. Prieto, 812
No. 19-1004 7
F.3d 6, 10, 12 (1st Cir. 2016) (finding no duplicity where in-
dictment alleged three-year mortgage rescue program
scheme involving 86 transactions with 30 mortgage lenders,
in which defendant engaged in sham transfers of properties
to straw purchasers who quitclaimed properties to defend-
ant’s organization, and noting that schemes to defraud “may
harm different groups of victims at different times” (citing
United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir. 2001))).
2. Statute of Limitations
The district court also did not err in denying O’Brien’s mo-
tion to dismiss based on the statute of limitations because the
indictment alleged that each count was executed on April 16,
2007, which fell within the applicable ten-year statute of limi-
tations. We determine the applicable statute of limitations,
and whether the charges were timely brought, based on the
face of the indictment. See United States v. White, 610 F.3d 956,
958 (7th Cir. 2010) (“An indictment is reviewed on its face, re-
gardless of the strength or weakness of the government’s
case.”). The statute of limitations for bank fraud is ten years.
18 U.S.C. § 3293(1). The statute of limitations for mail fraud is
generally five years, id. § 3282(a), but a ten-year statute of lim-
itations applies for fraud that “affects a financial institution,”
id. § 3293(2).
The indictment plainly alleged that the scheme to defraud
affected Citibank, which O’Brien does not dispute qualified
as a financial institution. The mail fraud count (Count I) al-
leged that Citibank required mortgage loan applicants to pro-
vide truthful information, which was material to its approval
and funding of loans, and that O’Brien knew “that false infor-
mation would be submitted to lenders, including Citibank,
N.A., to qualify [Kwan] for the [2007] loans.” The bank fraud
8 No. 19-1004
count (Count II) similarly charged an offense that affected a
financial institution, as we explain below. A ten-year statute
of limitations therefore applied to both counts. The ten-year
period started to run from the date of the alleged executions,
April 16, 2007. The grand jury returned the indictment on
April 11, 2017, before the ten-year period expired.
B. Sufficiency of the Evidence
The district court did not err in denying O’Brien’s motions
for a judgment of acquittal or a new trial because there was
sufficient evidence to support O’Brien’s convictions for mail
fraud affecting a financial institution under 18 U.S.C. §§ 1341
& 3293(2) (Count I) and for bank fraud under 18 U.S.C.
§ 1344(2) (Count II). We review de novo the denial of a motion
for a judgment of acquittal, which “should be granted only
when the evidence is insufficient to sustain the conviction.”
United States v. James, 464 F.3d 699, 705 (7th Cir. 2006). The
evidence is sufficient if “any rational trier of fact could have
found the essential elements of a crime beyond a reasonable
doubt.” United States v. Kelerchian, 937 F.3d 895, 907 (7th Cir.
2019) (citation omitted). We “overturn a verdict only when
the record contains no evidence, regardless of how it is
weighed, from which the jury could find guilt beyond a rea-
sonable doubt.” Id. (citation omitted). We review for an abuse
of discretion the denial of a motion for a new trial, which
should be granted “only if the evidence preponderates heav-
ily against the verdict, such that it would be a miscarriage of
justice to let the verdict stand.” United States v. Swan, 486 F.3d
260, 266 (7th Cir. 2007) (internal quotations marks, brackets,
and citation omitted).
No. 19-1004 9
1. Mail Fraud Affecting a Financial Institution (Count I)
To convict O’Brien of mail fraud under 18 U.S.C. § 1341,
the government had to prove beyond a reasonable doubt that
O’Brien: (1) participated in a scheme to defraud; (2) intended
to defraud; and (3) used the mails in furtherance of the
scheme. United States v. Seward, 272 F.3d 831, 835 (7th Cir.
2001). Because the government relied on the ten-year statute
of limitations applicable to mail fraud that “affects a financial
institution,” see 18 U.S.C. § 3293(2), it was also required to es-
tablish that the fraud affected a financial institution, which
can be established by a showing that the fraud exposed the
financial institution to “a new or increased risk of loss,”
United States v. Serpico, 320 F.3d 691, 694–95 (7th Cir. 2003).
The government needed to show that O’Brien intended for
her scheme to defraud “someone,” but “a financial institution
[did] not need to be the intended victim.” United States v.
Marr, 760 F.3d 733, 744 (7th Cir. 2014); see also United States v.
Pelullo, 964 F.2d 193, 216 (3d Cir. 1992) (noting that 18 U.S.C.
§ 3293(2) applies to a “broader class of crimes” than those
“where the financial institution is the object of the fraud”).
Viewing the evidence in a light most favorable to the pros-
ecution, O’Brien devised a scheme to defraud and made nu-
merous false statements in furtherance of the scheme, includ-
ing by inflating her income and concealing her biggest liabil-
ity to obtain a loan to buy the 46th Street property in 2004;
inflating the income from her realty company to refinance the
loans on the 46th Street and 54th Street properties in 2005; in-
flating revenue and profits for her realty company to obtain a
loan to maintain the 46th Street and 54th Street properties in
2006; and selling the 46th Street and 54th Street properties in
2007 to a straw buyer, while making kickback payments to the
10 No. 19-1004
true buyer without disclosing the identity of the buyer or the
kickback payments to the lender.
The evidence further demonstrated that O’Brien fraudu-
lently caused Citibank to provide Kwan the funding for two
loans in connection with the 2007 purchase of the 46th Street
property: one loan in the amount of $73,000 and another in
the amount of $292,000. O’Brien’s misrepresentations in con-
nection with these transactions were established by, among
other things, the false and fraudulent loan applications
O’Brien submitted; documents related to the purchase and
sale of the properties; the false HUD-1 forms; evidence of
O’Brien’s and her realty company’s actual income; and testi-
mony of Citibank vice president Judy Taylor. Citibank was
not only exposed to an increased risk of loss; it suffered an
actual loss as a result of the 2007 loans because it had to fore-
close on the 46th Street property and ultimately sold the prop-
erty at a “significant loss.”1
The parties agree that—during the time relevant to this
case—Citibank qualified as a financial institution, but its
1O’Brien appears to suggest that, even though her husband was not
a co-borrower on one of the loans, her husband’s income should have been
counted when calculating her income to qualify for the loan. O’Brien has
pointed to no authority explaining why the law compels such a result or
otherwise explained how this circumstance undermines confidence in the
jury’s conclusion that she harbored the requisite fraudulent intent.
O’Brien also contends that a witness from Chase testified that “it was pos-
sible that the Chase branch loan officer may have made mistakes when
she entered O’Brien’s LLC loan information” in connection with one of the
loans. Such a speculative possibility, however, does not provide grounds
for overturning the jury’s verdict.
No. 19-1004 11
wholly-owned subsidiary, CitiMortgage, did not.2 O’Brien
maintains that CitiMortgage, not Citibank, was the lender for
the $73,000 loan in April 2007.3 She also concedes, however,
that “countless exhibits presented by the government and de-
fense offered conflicting testimony/exhibits regarding
whether [CitiMortgage] or Citi[bank] funded” the $73,000
loan, and that related exhibits “cut both ways.” This is pre-
cisely the kind of conflicting evidence that is within the jury’s
province to resolve.
This is not a case like United States v. Bennett, where “the
government relied solely on [the mortgage lender]’s status as
a wholly-owned subsidiary [of a financial institution], and
presented no evidence indicating what kind of parent-
subsidiary relationship actually existed.” 621 F.3d 1131, 1139
(9th Cir. 2010). Nor is this a case like United States v. Banyan,
where the government did not “make any effort at trial to
prove that the loans were funded by the mortgage companies’
parent corporations, which were banks.” 933 F.3d 548, 551
(6th Cir. 2019).
Here, the government presented substantial evidence be-
yond Citibank’s parent-subsidiary relationship with
CitiMortgage to support the conclusion that Citibank funded
the $73,000 and $292,000 loans. Citibank vice president Tay-
lor, for example, testified that the $73,000 loan was a Citibank
2 See Bouchard, 828 F.3d at 124 (“Prior to 2009, the term ‘financial insti-
tution’ was defined to include insured depository institutions of the FDIC,
but not mortgage lenders.”); see also 18 U.S.C. § 20(1) (amended in May
2009 to include non-FDIC mortgage lenders in definition of “financial in-
stitution”).
3 O’Brien does not appear to contest that the $292,000 for the other
April 2007 loan came from Citibank.
12 No. 19-1004
product and that “all of the money used to fund both the
$292,000 and the $73,000 loan came from a Citibank account.”
Several documents additionally identified Citibank as the
lender on the $73,000 loan, such as the note, mortgage, HUD-
1 settlement statement, truth-in-lending disclosure, affiliated
business arrangement disclosure, and homeowner’s insur-
ance documents. O’Brien’s signature on some of those docu-
ments is assurance enough that she saw them; the evidence of
her link to other documents is not as direct.
The evidence on Count I was therefore sufficient to estab-
lish that O’Brien devised and participated in a fraudulent
scheme, that she intended to defraud CitiMortgage, and that
the fraud affected Citibank. Cf. United States v. Mullins, 613
F.3d 1273, 1278–79 (10th Cir. 2010) (affirming application of
ten-year statute of limitations for fraud affecting a financial
institution where jury heard evidence “explaining how fraud-
ulent information on a loan application increases the risk of
loss to the lender and its parent bank”); United States v. Bouyea,
152 F.3d 192, 195 (2d Cir. 1998) (per curiam) (holding there
was sufficient evidence that financial institution was affected
where employee of wholly-owned subsidiary testified that
subsidiary borrowed money for transaction at issue from par-
ent financial institution); Pelullo, 964 F.2d at 215–16 (disposing
of defendant’s assumption that “a fraud perpetrated against
a financial institution’s wholly owned subsidiary cannot af-
fect the parent”). O’Brien does not contest the sufficiency of
the evidence regarding the April 16, 2007 mailing in further-
ance of the scheme. The mail fraud conviction is sound.
No. 19-1004 13
2. Bank Fraud (Count II)
The evidence was also sufficient to convict O’Brien of bank
fraud under 18 U.S.C. § 1344(2). Section 1344 provides that a
defendant may be found guilty of bank fraud if she:
knowingly executes, or attempts to execute, a
scheme or artifice—
(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds,
credits, assets, securities, or other
property owned by, or under the cus-
tody or control of, a financial institu-
tion, by means of false or fraudulent
pretenses, representations, or prom-
ises.
Count II of the indictment charged O’Brien with violating
§ 1344, which the government was permitted to prove under
subsection (1) or (2). See United States v. LeDonne, 21 F.3d 1418,
1427 (7th Cir. 1994) (reasoning that the government may
charge both sections of § 1344 in same count). While the gov-
ernment must prove that the defendant had the specific intent
to defraud a financial institution under § 1344(1), proof of
such intent is not required under § 1344(2). Loughrin v. United
States, 573 U.S. 351, 356–57 (2014) (“[N]othing in [§ 1344(2)]
additionally demands that a defendant have a specific intent
to deceive a bank. And indeed, imposing that requirement
would prevent § 1344(2) from applying to a host of cases fall-
ing within its clear terms.”).
Rather, to obtain a conviction under § 1344(2), the govern-
ment may demonstrate that the defendant knowingly “de-
ceiv[ed] a non-bank custodian into giving up bank property
14 No. 19-1004
that it holds.” Id. at 357. In Loughrin, the Supreme Court held
that “the text of § 1344(2) preclude[d]” the defendant’s argu-
ment that “his intent to deceive ran only to Target,” a non-
financial institution, “and not to any of the banks on which
his altered checks were drawn.” Id. at 356. The Court reasoned
that applying § 1344(2) only “in the (presumably rare) circum-
stance in which the fraudster’s intent to deceive extended be-
yond the custodian to the bank itself … would … function as
an extra-textual limit on the clause’s compass.” Id. at 357. The
defendant nevertheless “must at least know that the property
belongs to or is under the custody or control of a bank.” Bou-
chard, 828 F.3d at 126. Hence, to overturn the bank fraud con-
viction, O’Brien must convince us that no rational jury could
infer that she knowingly deceived CitiMortgage into giving
up Citibank funds.
We conclude that a rational jury could find—based on
O’Brien’s experience in the real estate industry and with Citi-
bank in particular, as well as her intimate involvement in the
fraudulent scheme and the 2007 transactions—that O’Brien
knew that the funds for the April 2007 loans originated from
Citibank. In Bouchard, the Second Circuit overturned a mort-
gage fraud conviction under § 1344(2) because the govern-
ment had not established that the defendant knew that the
funds fraudulently obtained from the mortgage lenders be-
longed to or were under the custody or control of a bank. 828
F.3d at 126–27. The Second Circuit noted that “the Govern-
ment might have been able to prove that [the defendant]
knew that money from mortgage lenders came from banks by
virtue of his knowledge of the industry” but ”failed to make
this argument or proffer evidence of [the defendant]’s exten-
No. 19-1004 15
sive knowledge of the real estate and mortgage lending in-
dustry as a reason to convict him at trial.” Id. at 127. The gov-
ernment provided precisely such evidence here.
O’Brien had an extensive background and experience in
the real estate industry, including as a registered loan origi-
nator, mortgage consultant, licensed real estate broker, and
owner of O’Brien Realty LLC, a licensed Illinois real estate
company. She had prior experience working with Citibank in
particular. Moreover, when Citibank vice president Taylor
was asked about “a typical day at Citi back in 2007,” she ex-
plained that “Citibank would provide funds to CitiMortgage”
to fund loans in a similar way that it funded the April 2007
loans. Pairing O’Brien’s extensive expertise in the real estate
and mortgage lending industry with the fact that Citibank
funded the April 2007 loans as it would in the ordinary course
of its business supports the inference that O’Brien knew the
funding would originate from Citibank.
Such an inference is buttressed by evidence of O’Brien’s
intimate involvement in the fraudulent scheme and especially
her involvement in the April 2007 transactions. O’Brien acted
as both the seller and seller’s attorney, was present for the
closings, was closely involved with the sale, and prepared the
closing statements. The HUD-1 form O’Brien signed listed
Kwan’s $73,000 loan, and the HUD-1 form for that loan ex-
pressly identified Citibank as the lender. One might not nor-
mally expect a seller in an arms-length real estate transaction
to have access to information to which the buyer has access,
but this was no arms-length transaction. O’Brien and Kwan
were co-participants in a scheme to defraud in which O’Brien
and Bartko used Kwan as a straw purchaser. O’Brien, Kwan,
and Bartko had signed notarized “Acknowledgement &
16 No. 19-1004
Agreements” forms (undisclosed in the HUD file and to the
lender) that identified both Kwan and Bartko as buyers.
O’Brien also made undisclosed payments to both Kwan and
Bartko, including a $4,000 check to Kwan dated the day of the
46th Street closing, which Kwan endorsed over to Bartko.
Hence, the jury could reasonably have connected
O’Brien’s background and experience with the other evidence
regarding the relationship between Citibank and CitiMort-
gage, as well as the identification of Citibank as the lender on
loan documents and O’Brien’s participation in the fraudulent
scheme (and in the 2007 transactions in particular), to con-
clude that O’Brien knew the funds originated from Citibank.
Cf. United States v. Rabuffo, 716 F. App’x 888, 898–99 (11th Cir.
2017) (affirming § 1344 conviction where it was reasonable to
infer that defendant “knew the fraudulent loan applications
would place SunTrust Bank at a risk of harm” based on de-
fendant’s background as “experienced real estate developer,”
defendant’s involvement in scheme, similarity of names be-
tween SunTrust Bank and its wholly-owned subsidiary (Sun-
Trust Mortgage), and defendant’s previous interactions with
SunTrust Bank).
The defendant in Loughrin violated § 1344(2) “because he
made false statements, in the form of forged and altered
checks, that a merchant would, in the ordinary course of busi-
ness, forward to a bank for payment.” 573 U.S. at 366. Simi-
larly, O’Brien’s fraudulent misrepresentations were “the
No. 19-1004 17
mechanism naturally inducing a … custodian of bank prop-
erty … to part with money in its control.” Id. at 363. 4 Her bank
fraud conviction must stand.
3. Materiality
O’Brien raises a new argument on appeal that “there were
no mail or bank fraud material misrepresentations because
Citi[bank]’s loss risk was extraordinarily de minimis.” Accord-
ing to O’Brien, Citibank’s risk of loss due to this scheme rep-
resented only a small fraction of the $550 million “that
[CitiMortgage] (and its subsidiaries) received … on a daily
basis to fund its mortgage loan docket.” O’Brien did not raise
this argument in the district court and has therefore forfeited
it, so our review is for plain error. See United States v. Walsh,
723 F.3d 802, 807 (7th Cir. 2013). In any event, there was no
error, plain or otherwise.
Materiality requires only the tendency or capability of in-
fluencing the victim; there is no requirement that the misrep-
resentations must have actually influenced the decision-
maker or that the decision-maker in fact relied on the misrep-
resentations. See United States v. Roberts, 534 F.3d 560, 571 (7th
Cir. 2008). O’Brien has pointed to no authority supporting her
novel argument that fraudulent misstatements are material
only if they affect more than a de minimis proportion of a vic-
tim’s funds.
Here, the jury heard evidence that if O’Brien had disclosed
O’Brien Realty LLC’s true financial status, her application for
a commercial loan would have been denied. The jury also
4 Because there was sufficient evidence to sustain the bank fraud con-
viction under § 1344(2), we need not reach the question of whether we
could also sustain O’Brien’s conviction under § 1344(1).
18 No. 19-1004
heard that, had O’Brien disclosed to Citibank that Kwan was
a straw buyer and Bartko the true buyer, it would have raised
a “red flag” and affected Citibank’s risk analysis. The mis-
statements were therefore material. Cf. United States v. Reyn-
olds, 189 F.3d 521, 525–26 (7th Cir. 1999) (affirming conviction
and finding sufficient evidence of materiality “[b]ecause [de-
fendant]’s false statements regarding his financial condition
could clearly influence a bank deciding whether to approve a
loan (even if they did not in fact influence the decision)”).
C. Admissibility of Evidence
Finally, the district court did not abuse its discretion in ad-
mitting evidence relating to the 2004, 2005, and 2006 transac-
tions as direct evidence of the fraudulent scheme alleged. See
United States v. Quiroz, 874 F.3d 562, 569 (7th Cir. 2017) (re-
viewing evidentiary rulings for abuse of discretion). “[T]he
fact that only one or two executions fell within the Statute of
Limitations does not detract from the entire pattern of loans’
being a scheme, and renders [the defendant] no less culpable
for the entire scheme.” United States v. Longfellow, 43 F.3d 318,
325 (7th Cir. 1994). We need not conduct a Federal Rule of Ev-
idence 404(b) analysis because “if the evidence is admitted as
direct evidence of the charged offense, Rule 404(b) is not ap-
plicable.” United States v. Adams, 628 F.3d 407, 414 (7th Cir.
2010).
O’Brien tacks on that the district court should not have ad-
mitted the May 2007 quit claim deeds because those deeds are
outside of the statute of limitations. Those deeds, however,
are dated within the applicable ten-year statute of limitations,
which began to run in April 2007. In any event, the district
court appropriately admitted those deeds as direct evidence
demonstrating that Kwan (the straw buyer) quit claimed the
No. 19-1004 19
properties to Bartko (the true buyer) shortly after the closings.
They are admissible even though they are dated after the ex-
ecutions of the scheme to defraud. See United States v. Ajayi,
808 F.3d 1113, 1120 (7th Cir. 2015) (stating that the govern-
ment may introduce uncharged acts of bank fraud after exe-
cution of scheme to support its case). The district court did
not err in admitting the contested evidence.
III. Conclusion
For the foregoing reasons, we AFFIRM O’Brien’s convic-
tions.