United States v. Clifford Willson

Case: 12-13431 Date Filed: 12/31/2013 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13431
________________________
D.C. Docket No. 3:10-cr-00264-TJC-JBT-10
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFFORD WILLSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 31, 2013)
Before MARTIN and HILL, Circuit Judges, and HUCK, * District Judge.
PER CURIAM:
Clifford Willson appeals his conviction for one count of conspiracy to
*
Honorable Paul C. Huck, United States District Judge for the Southern District of Florida,
sitting by designation.
Case: 12-13431 Date Filed: 12/31/2013 Page: 2 of 12
commit mail and wire fraud, in violation of 18 U.S.C. § 371. He argues that the
government failed to present sufficient evidence at trial to support his conviction.
Alternatively, Clifford argues that the evidence at trial did not show that he
participated in the single overarching conspiracy charged in the indictment.1
Instead, Clifford suggests that he was a member of a smaller and more limited
conspiracy. After careful review and with the benefit of oral argument, we affirm.
I.
On November 3, 2010, a grand jury sitting in the Middle District of Florida
returned an indictment charging Clifford and fifteen others with conspiring to
commit mail and wire fraud, in violation of 18 U.S.C. § 371. Fourteen of the
sixteen defendants pleaded guilty, including Gregory W. Willson, who was the
mastermind of the conspiracy and Clifford’s son. Clifford and his grandson,
Gregory M. Willson, proceeded to a joint jury trial on February 6, 2012.2
The evidence at trial showed that Gregory W. Willson operated a branch of
Access E Mortgage (“Access E”), a firm which helped clients apply for loans so
they could purchase a home or refinance their mortgage. Around late 2005,
Gregory W. Willson and his co-workers at Access E devised a plan to help
homeowners who had been served with a notice of foreclosure. Access E would
1
We refer to this Appellant as Clifford in order to distinguish him from his son and grandson,
both of whom are discussed here and are also named Willson.
2
At the close of the government’s case, the district court granted Gregory M. Willson’s motion
for a judgment of acquittal.
2
Case: 12-13431 Date Filed: 12/31/2013 Page: 3 of 12
offer to find a “straw buyer” who would take out a loan and purchase the property
so that the homeowner would not lose his home while improving his credit. The
idea was that the original homeowner would be able to buy the property back 18–
24 months later, after his credit had sufficiently improved.
On its face, the plan seemed like a win-win proposition for all involved. The
homeowners would be able to avoid foreclosure and continue living in their homes
while rebuilding their credit. Access E benefited by collecting fees from the loan
disbursements, using the rest of the disbursements to make mortgage payments.
Finally, the buyers received an “investor fee” of three percent of the loan amount,
including any costs typically associated with closing a real estate transaction.
In order for the scheme to work, however, Access E had to convince
mortgage companies to lend the buyers money at a favorable interest rate. To that
end, Access E submitted fraudulent loan applications and closing documents on
behalf of the buyers so that they would qualify for low interest rates. For example,
some loan applications inflated the income and assets of the buyers. Other loan
documents listed jobs and other sources of income that the buyers did not have.
Virtually every loan application claimed that the buyer was going to occupy the
property, even though it was understood that the original homeowner was not
going to move out. These fraudulent statements were all calculated to ensure that
3
Case: 12-13431 Date Filed: 12/31/2013 Page: 4 of 12
the mortgage companies would approve the loans with the lowest-possible interest
rates.
Clifford, whose appeal is the only one we consider here, was recruited by his
son to serve as a buyer for two of the thirteen properties in the scheme. One
property was located at 2007 Farm Way in Middleburg, Florida (“the Farm Way
property”). The other property was located at 10584 Haverford Street in
Jacksonville, Florida (“the Haverford Street property”). Each time that Clifford
agreed to act as a buyer, employees at Access E prepared all of the necessary
paperwork. When it came time to sign the documents, Clifford did not read any of
them, simply asking where he should sign. Once the loan was processed and
approved, Clifford received a check for his investor fee.
After the purchase of thirteen pieces of property by seven different buyers,
the FBI began to suspect that there was some fraudulent activity relating to loans
processed by Access E. During the course of the FBI’s investigation, Clifford was
interviewed by Agent J. Douglas Mathews on June 18, 2010. Critically, Clifford
confessed to knowing that the loan documents prepared on his behalf falsely
claimed that he would be living in the properties, even though he had no intention
of doing so. Clifford also admitted that these fraudulent statements were necessary
in order to obtain a favorable loan from the mortgage company. Finally, he noted
4
Case: 12-13431 Date Filed: 12/31/2013 Page: 5 of 12
that he had a substantial background in the real estate industry, including 13 years
as a real estate broker.
At the close of the government’s case, Clifford moved for a judgment of
acquittal, arguing that there was insufficient evidence to support a conviction for
conspiracy to commit mail and wire fraud. The district court, however, reserved
its decision on the motion and submitted the case to the jury. After the jury found
him guilty, the district court denied Clifford’s motion for judgment of acquittal.
He now appeals.
II.
A.
Clifford’s first argument is that the district court should have granted his
motion for a judgment of acquittal because there was insufficient evidence to
support his conviction. He specifically argues that there was no evidence at trial
that he knowingly and willfully agreed to commit any wrongful acts.
“We review de novo a district court’s denial of judgment of acquittal on
sufficiency of evidence grounds.” United States v. Browne, 505 F.3d 1229, 1253
(11th Cir. 2007). “In reviewing a sufficiency of the evidence challenge, we
consider the evidence in the light most favorable to the Government, drawing all
reasonable inferences and credibility choices in the Government’s favor.” Id. “A
jury’s verdict cannot be overturned if any reasonable construction of the evidence
5
Case: 12-13431 Date Filed: 12/31/2013 Page: 6 of 12
would have allowed the jury to find the defendant guilty beyond a reasonable
doubt.” United States v. Herrera, 931 F.2d 761, 762 (11th Cir. 1991). “The
evidence need not be inconsistent with every reasonable hypothesis except guilt,
and the jury is free to choose between or among the reasonable conclusions to be
drawn from the evidence presented at trial.” United States v. Poole, 878 F.2d
1389, 1391 (11th Cir. 1989) (per curiam). But when the government relies on
circumstantial evidence, the conviction must be supported by reasonable
inferences, not mere speculation. United States v. Friske, 640 F.3d 1288, 1291
(11th Cir. 2011).
In United States v. Adkinson, 158 F.3d 1147 (11th Cir. 1998), we held that
to sustain a conviction under 18 U.S.C. § 371, the government must prove: “(1) the
existence of an agreement to achieve an unlawful objective; (2) the defendants’
knowing and voluntary participation in the agreement; and (3) the commission of
an act in furtherance of the agreement.” Id. at 1153. The government need not
prove that a defendant knew every detail of the conspiracy or participated in every
stage of the conspiracy. United States v. McNair, 605 F.3d 1152, 1196 (11th Cir.
2010). However, the government must still prove beyond a reasonable doubt that
each defendant had a “deliberate, knowing, specific intent to join the conspiracy.”
United States v. Cole, 755 F.2d 748, 755 (11th Cir. 1985) (quotation marks
omitted).
6
Case: 12-13431 Date Filed: 12/31/2013 Page: 7 of 12
As to the first Adkinson prong, Clifford acknowledges that there was
sufficient evidence to establish the existence of an agreement to achieve an
unlawful objective, which in this case was mail and wire fraud. Cooperating
witnesses, including the mastermind of the scheme, Gregory W. Willson, testified
that they agreed to submit fraudulent documents to mortgage lenders in order to
obtain favorable interest rates on loans. Because many of these documents were
mailed to lenders, and loan disbursements were frequently transmitted via wire
transfer, there was also sufficient evidence to show that the use of the mail and
wires was a significant part of the scheme.
Neither does Clifford appear to dispute that the third Adkinson prong was
met in this case because the evidence certainly established that his actions
furthered the conspiracy. Clifford signed both sets of closing documents for the
Farm Way and Haverford Street properties after advising that the contents need not
be explained to him. Clifford also admitted that his loan documents contained
false information, and that he understood that the purpose of these false statements
was to obtain a mortgage loan with a favorable interest rate. As a result, a
reasonable jury could conclude that Clifford’s agreement to serve as a buyer and
his willingness to put his name on fraudulent loan documents furthered the goals of
the conspiracy.
7
Case: 12-13431 Date Filed: 12/31/2013 Page: 8 of 12
Clifford seems to center his argument on the second Adkinson prong. While
he acknowledges that he agreed with his son to serve as a buyer for two properties,
Clifford argues that he did not know that the submission of false information or
false documents played any part in his son’s scheme. Based on this premise,
Clifford argues that the government’s evidence only shows that his actions were
negligent, not criminal.
Clifford’s argument fails. There was ample evidence at trial that would
allow a jury to conclude that Clifford knowingly and voluntarily participated in the
entire conspiracy, including the fraudulent portions of the scheme. Clifford
admitted during his interview with Agent Mathews that he was aware that his loan
documents contained false statements regarding his intent to occupy the properties
that he purchased. Clifford also admitted that he understood that these false
statements were necessary in order to obtain a mortgage loan with a favorable
interest rate. Prior to the closing for the Farm Way property, Clifford agreed to
pay for the closing costs out of his own account (to be reimbursed later) so that the
lender would be under the false impression that he was paying for the closing costs
instead of Access E. Finally, the jury also heard evidence that Clifford had been
involved in the real estate business for many years, which would have added on to
the evidence that he knew that he was participating in a fraudulent scheme. Based
on this evidence, a jury could reasonably infer that Clifford knew and agreed to
8
Case: 12-13431 Date Filed: 12/31/2013 Page: 9 of 12
participate in the entirety of his son’s scheme, including the parts of it that
involved fraud.3
B.
Clifford alternatively argues that, even if the evidence was sufficient to
prove that he knowingly and willfully agreed to commit a wrongful act, it was not
sufficient to establish that he was guilty of the conspiracy charged in the
indictment, which involved a total of thirteen pieces of property purchased by
seven different buyers. Rather, Clifford argues that the evidence only establishes a
limited conspiracy involving the two properties that he purchased himself. He
submits that there was no evidence establishing his connection to any of the other
six buyers, nor that he knew that the other purchases involved the submission of
fraudulent information to lenders.
Under this Court’s precedent, Clifford’s argument is properly viewed as an
allegation of variance. “A material variance between an indictment and the
government’s proof at trial occurs if the government proves multiple conspiracies
3
Clifford suggests that his conviction must be reversed because of the possibility that his loan
documents were forged or altered before they were submitted. Clifford also emphasizes that one
of the loan documents for the Farm Way property correctly stated that the property’s intended
use was for investment. These arguments fail on their face. Again, in reviewing a challenge to
the sufficiency of the evidence, “we consider the evidence in the light most favorable to the
Government, drawing all reasonable inferences and credibility choices in the Government’s
favor.” Browne, 505 F.3d at 1253. This being the case, even though there may be some
conflicting evidence in the record, there was certainly enough evidence for a reasonable jury to
infer that Clifford knowingly and willfully agreed to participate in the conspiracy. See Poole,
878 F.2d at 1391 (“The evidence need not be inconsistent with every reasonable hypothesis
except guilt, and the jury is free to choose between or among the reasonable conclusions to be
drawn from the evidence presented at trial.”).
9
Case: 12-13431 Date Filed: 12/31/2013 Page: 10 of 12
under an indictment alleging only a single conspiracy.” United States v. Castro, 89
F.3d 1443, 1450 (11th Cir. 1996). “We will uphold the conviction unless the
variance (1) was material and (2) substantially prejudiced the defendant.” Id.
“To determine whether a variance was material, we look at the evidence in
the light most favorable to the government and ask whether a reasonable trier of
fact could have determined beyond a reasonable doubt that a single conspiracy
existed.” United States v. Seher, 562 F.3d 1344, 1366 (11th Cir. 2009). Three
factors in particular are helpful in making this determination: “(1) whether a
common goal existed; (2) the nature of the underlying scheme; and (3) the overlap
of participants.” United States v. Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007)
(quotation marks omitted).
Even when this Court finds a material variance, however, it is still
incumbent upon the defendant to demonstrate that his substantial rights were
prejudiced by the variance. United States v. Calderon, 127 F.3d 1314, 1328 (11th
Cir. 1997); United States v. Jones, 913 F.2d 1552, 1560 (11th Cir.1990) (“A
variance between allegations and proof is reversible error only when it actually
prejudices the defendant.”). To demonstrate substantial prejudice, the defendant
must show one of two things: (1) that the proof at trial differed so greatly from the
charges that he was unfairly surprised and was unable to prepare an adequate
defense; or (2) that there were so many defendants and separate conspiracies
10
Case: 12-13431 Date Filed: 12/31/2013 Page: 11 of 12
before the jury that there is a substantial likelihood that the jury transferred proof
of one conspiracy to a defendant involved in another. Id. at 1561.
Even if we assume a material variance between the indictment and the
government’s proof at trial, Clifford’s argument fails because he is not able to
establish that the variance prejudiced his substantial rights. He cannot claim unfair
surprise because the alleged variance did not alter the crime charged, the requisite
elements of proof, or the appropriate defenses in any significant way. See Jones,
913 F.2d at 1562. Indeed, Clifford’s primary defense at trial was that he was
unaware that his son’s scheme involved fraud. This would have been his defense
regardless of whether the indictment charged multiple conspiracies or a single
conspiracy.
Neither can Clifford show that there is a substantial likelihood that the jury
transferred evidence from one defendant to another. He was tried together with
only one other person, who was acquitted by the district court before the jury ever
received its instructions and began deliberating. Cf. United States v. Caporale, 806
F.2d 1487, 1501 (11th Cir. 1986) (holding that a case involving eleven defendants
and two possible conspiracies was not so complex that there was risk of significant
jury confusion). The district court also separately instructed the jury not to
consider the evidence against Clifford’s co-defendant in any way during its
deliberations. As a result, Clifford cannot show that his substantial rights were
11
Case: 12-13431 Date Filed: 12/31/2013 Page: 12 of 12
prejudiced by any variance between the indictment and the government’s proof at
trial.
III.
For these reasons, we affirm Clifford’s conviction.
AFFIRMED.
12