United States v. Ford

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 13, 2009
No. 07-20885 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MARJORIE ATKINSON FORD
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-cr-00033-2
Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
This is a direct criminal appeal from a conviction for conspiracy to commit
wire fraud after a jury trial. Appellant Marjorie Ford argues the evidence is
insufficient to sustain the conviction, claiming that the government failed to
prove that she knowingly participated in the wire fraud scheme. Appellant also
contends that the district court erred in imposing two sentencing enhancements
and that her guideline sentence is unreasonable. Viewing the evidence in the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-20885
light most favorable to the jury verdict, we find the evidence sufficient to sustain
the conviction. Additionally, finding no sentencing error, we affirm the sentence.
I. FACTUAL AND PROCEDURAL HISTORY
The wire fraud scheme involved a series of real estate transactions in
which co-defendant Michael Harris, aided by Ford and a mortgage broker, Jim
Houston, orchestrated a scheme in which the sale price of houses were inflated
using false invoices for construction, home audio, or landscaping services that
Harris’s company never actually provided. Thus, lenders would loan an amount
greater than the value of the house, with the additional amount divided among
the borrower and Harris. Additionally, during most of the transactions,
Houston’s wife Melissa would be paid a commission even though she did not
perform any services. Harris and Houston recruited buyers, and if the buyer
was unable to qualify for the loan, they would employ a “credit repair service,”
owned by Carlin Joubert, to add credit lines to boost the buyer’s credit score and
sometimes provide the purchaser with a false social security number.
Ford was responsible for preparing false real estate documents and closing
transactions (even though her escrow license had been suspended and she could
not legitimately close transactions), thereby facilitating the payment of inflated
loans and fraudulent invoices. Ford worked for several title companies during
the relevant time period, including AmeriTrust Title Company, her employer at
the time of her arrest.
Harris also used the services of Valencia Armstead, a branch manager for
Compass Bank. In order to induce lenders to make loans, Armstead issued false
verifications of deposit for individuals who did not have the requisite funds for
the loans.
Harris later recruited Armstead herself to purchase a house at 16472 Ryan
Guinn Way, even though she had bad credit and had never visited the property.
Harris used Joubert’s company to “boost” Armstead’s credit score and obtain a
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No. 07-20885
fraudulent social security number. At the time of Armstead’s closing date,
January 8, 2007, the Secret Service was investigating the case and approached
Armstead at her bank office. Armstead agreed to cooperate and assist in
recording conversations. Armstead called Harris, and Harris said that he would
not be at the closing but Ford would be there. Harris vouched that Ford was
“cool” and that he had worked with Ford in the past. The transaction was
designed to net $17,000 from the proceeds of the loan from Countrywide Home
Loans, with Armstead to receive a share. For the closing of this loan, Ford
received instructions from Countrywide’s representative. When Armstead
arrived at the closing (wearing a recording device), both Harris and Ford were
present. Armstead had not previously seen her own loan application. Armstead
told Ford that the social security number on her loan application was incorrect.
Instead of stopping the closing and informing Countrywide—pursuant to
Countrywide’s prior instructions—Ford told Armstead to correct the number and
continue signing documents. Further, even though the evidence indicated that
Ford knew that Armstead would not be living in the Ryan Guinn property (the
plan was to lease the residence), Ford had Armstead sign a certificate of
occupancy. Armstead testified as to “side conversations” between Harris and
Ford and other circumstances that made it appear to Armstead that Ford was
a knowledgeable participant. Harris and Ford were arrested during this
transaction.
A grand jury returned a one-count indictment charging Harris and Ford
with conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349.
Harris pleaded guilty to the indictment. Ford was tried by a jury and found
guilty as charged. At sentencing, the district court imposed a 16-level
enhancement based on the finding of intended loss in excess of $1,000,000.
U.S.S.G. § 2B1.1(b)(1)(I). The district court also imposed a two-level increase
based on a finding of ten or more victims. U.S.S.G. § 2B1.1(b)(2)(A)(i). These
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enhancements resulted in an offense level of 24. With a criminal history
category of II, Ford’s guideline range was 57-71. Although the government
recommended a sentence in the middle of the range, the district court sentenced
Ford to the longest sentence within the range (71 months). Ford now appeals.
II. ANALYSIS
A. Sufficiency of the Evidence
Ford contends that the evidence is insufficient to sustain her conviction for
conspiracy to commit wire fraud. When reviewing the sufficiency of the
evidence, we view all evidence, whether circumstantial or direct, in the light
most favorable to the government, with all reasonable inferences and credibility
choices to be made in support of the jury’s verdict. United States v. Salazar, 958
F.2d 1285, 1290–91 (5th Cir. 1992). The evidence is sufficient to support a
conviction if a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Id. The evidence need not exclude every
reasonable hypothesis of innocence or be completely inconsistent with every
conclusion except guilt, so long as a reasonable trier of fact could find that the
evidence established guilt beyond a reasonable doubt. United States v. Faulkner,
17 F.3d 745, 768 (5th Cir. 1994). With respect to the offense of wire fraud, the
“government must prove beyond a reasonable doubt that the defendant: (1)
engaged in a scheme to defraud and (2) used, or caused the use of, wire
communications in furtherance of that scheme.” United States v. Rivera, 295
F.3d 461, 466 (5th Cir. 2002) (citing 18 U.S.C. § 1343). With respect to
conspiracy, the district court’s instructions provided that the jury must be
convinced beyond a reasonable doubt that: (1) “two or more persons, directly or
indirectly, reached an agreement to devise and execute a scheme to defraud”; (2)
“the defendant knew the unlawful purpose of the agreement;” and (3) “the
defendant joined in the agreement willfully, that is, with the intent to further
the unlawful purpose.”
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Ford does not dispute that there was a conspiracy to commit wire fraud;
instead, she contends that she did not knowingly participate in it. The defense’s
position at trial was that Ford innocently followed the instructions from Harris
and Houston. Ford contends that her role was to process documents that were
approved and signed by other individuals and send them to the lender. Upon
receipt of the documents, the lender wired funds to the title company pursuant
to the settlement statement.
Accordingly, the issue is whether the evidence is sufficient to show that
Ford was aware of the misrepresentations and misinformation she submitted to
the lenders. At trial, Harris, Ford’s codefendant, testified that he:
conspired with Ms. Ford. Her role was not as far as getting the
process going with the mortgage company. Her role was with the
title, disbursing the funds. That’s what I conspired with her, as far
as . . . the title stuff. As far as the money, the transfer, the wire
coming back, how the money was being disbursed.
Harris also testified that Ford did “whatever she had to do as far as being a
closer to manipulate the [settlement statement] to make it go smoothly.” As
Ford admits, Harris’s testimony also indicated that Ford knew to pay Harris and
Houston from the lenders’ funds for services that had not been performed on the
houses. He also testified that on one occasion he failed to bring a cashier’s check
for the earnest money to a closing, and Ford “just like made one on the computer
and faxed it to the lender.” Harris testified that Ford was aware that some of
the buyers were fraudulently claiming in a certificate of occupancy that the
home would be a primary residence.
Armstead testified that she did not meet Ford until the closing that
precipitated Ford’s arrest. Armstead further testified that she believed that
Ford “knew more about what was going on.” Armstead came to this conclusion
based on the conversation during the closing, “the looks exchanged between the
two [Harris and Ford]” and “the fact that [Harris] had said that [Ford] worked
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No. 07-20885
with him and she was cool.” During Armstead’s closing, although Armstead told
Ford that her social security number was incorrect, Ford did not stop the closing
in accordance with the lender’s rules. Instead, Ford instructed Armstead to
correct the number and continue to sign the forms.
Additionally, Special Agent Vincent Edwards testified that he monitored
the audio of the closing that culminated in Ford’s arrest. He testified that when
he interrupted the closing, he inquired of each person what their purpose was
at the closing. Ford responded that she was representing the builder. To the
contrary, Ford was employed by AmeriTrust Title. We have previously
recognized that lying to agents is evidence of guilty knowledge. United States
v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir. 1989).
Ford contends that the testimony of Harris was insufficient to prove that
she knowingly participated. This Court has explained that it “is concerned only
with the sufficiency—not the weight—of evidence.” United States v. Garcia, 995
F.2d 556, 561 (5th Cir. 1993). To put a finer point on it, the credibility of a
witness and the “weight of the evidence is the exclusive province of the jury.” Id.
The jury was free to credit Harris’s testimony. Indeed, this Court is bound to
accept a jury’s credibility determinations unless the challenged testimony “is so
unbelievable on its face that it defies physical laws.” United States v. McKenzie,
768 F.2d 602, 605 (5th Cir. 1985).
Ford also points to evidence showing that she was unaware of the fake
social security numbers. The government does not contend that she had
knowledge of the fake social security numbers. Indeed, Harris’s testimony
makes clear that Ford’s role in the conspiracy did not involve knowledge of the
fake social security numbers. Ford’s role was to ensure that the settlement
statement was manipulated such that the lender would be unaware that the
amount of the loan was fraudulently inflated. Ford would also facilitate
concealing certain information from the lender —such as the fact that the buyer
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No. 07-20885
was not going to occupy the home as a primary residence. Accordingly, we find
that the evidence, viewed in the light most favorable to the verdict, allows a
rational trier of fact to find that Ford knowingly participated in the wire fraud
scheme. The conviction is AFFIRMED.
B. Sentencing
1. Amount of Loss
Ford contends that the district court erred in calculating the amount of
loss under § 2B1.1(b)(1). The district court adopted the loss calculation
contained in the PSR. A PSR “is considered reliable and may be considered as
evidence by the court when making sentencing determinations.” United States
v. Vela, 927 F.2d 197, 201 (5th Cir. 1991). “In making its factual findings for
sentencing, a district court may adopt the findings of the PSR without additional
inquiry if those facts have an evidentiary basis with sufficient indicia of
reliability and the defendant does not present rebuttal evidence or otherwise
demonstrate that the information is materially unreliable.” United States v.
Valles, 484 F.3d 745, 759 (5th Cir. 2007). “The defendant has the burden of
showing that the information relied on by the district court in the PSR is
materially unreliable.” Id. at 759-60.
More specifically, Ford challenges the methodology relied upon by the
district court. In response, the government asserts that the calculations Ford
submitted to the district court in rebuttal use the same methodology of the PSR.
In her reply brief, Ford asserts that using the PSR’s amount of loss did not waive
her argument. By using the same figures the government used, she failed to
carry her burden of proving the figures and methodology were materially
unreliable or erroneous before the district court. With respect to Ford’s
remaining challenges to the calculation of loss, Ford has failed to show clear
error.
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No. 07-20885
2. Number of Victims
In her initial brief, Ford contends that the district court erred in applying
the two-level enhancement to her offense level based on finding ten or more
victims. § 2B1.1(b)(2)(A)(i). She asserts that the “government never provided
the district court with the list of lenders who suffered losses.” Ford further
argues that “[a]t a bare minimum, the government was obligated to provide the
list of victims to support an enhancement based on their number. This it did not
do.” In response, the government’s brief provides that the attachment to the
PSR specifically listed the names of the victims as follows:
The Federal Home Loan Mortgage Corporation, Ocwen Loans
Servicing, LLC, Washington Mutual Home Loans, Securitized Asset
Trust-NCZ, Nations (the builder in many transactions), Residential
Funding Company, LLC, NHB to Akon Eluma, Bear Stearn
Institutional Lenders, Federal National Mortgage Association,
Argent Mortgage Section, Inc., Deutsche Bank National Trust, and
GMAC Mortgage, LLC.
In her reply brief, Ford does not dispute that the attachment to the PSR
listed ten victims. Instead, she points to the district court’s statement of its
reason for not ordering restitution to the victims. Contrary to Ford’s assertion,
the record of the sentencing hearing makes clear that the district court overruled
her objection to the number of victims under § 2B1.1(b)(2)(A)(i). Ford has failed
to show the district court clearly erred in finding ten victims.
3. Reasonableness
Finally, Ford contends that the district court imposed an unreasonable
sentence. Her sole basis for this contention is that her sentence was imposed
prior to the Supreme Court’s opinions in Kimbrough v. United States, 128 S. Ct.
558 (2007), and Gall v. United States, 128 S. Ct. 586 (2007). Kimbrough held
that a district court had discretion to vary from the guidelines based on a
disagreement with guideline policy. See United States v. Gomez-Herrera, 523
F.3d 554, 563 (5th Cir. 2008). With respect to Gall, Ford relies on the Supreme
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No. 07-20885
Court’s rejection of a rule that requires extraordinary circumstances to justify
a sentence outside the guidelines range. 128 S. Ct. at 595. In the instant case,
there is no indication that the district court disagreed with the guideline range
or somehow felt constrained by our pre-Gall/Kimbrough precedent.1 We have
previously rejected this claim under similar circumstances. See United States
v. Rodriguez-Rodriguez, 530 F.3d 381, 387-89 (5th Cir. 2008) (finding no plain
error as to claim of unreasonable sentence after Kimbrough even though district
court sentenced defendant to the lowest end of the guideline range). Here, the
district court stated that it had considered the guidelines and the factors under
18 U.S.C. § 3553(a). Ford has not overcome the presumption of reasonableness
afforded her guidelines sentence. See Rita v. United States, 127 S. Ct. 2456,
2462–68 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
For the above reasons, the district court’s judgment is AFFIRMED.
1
Indeed, the district court sentenced Ford to the highest end of the guideline range
despite the government’s recommendation of a mid-range sentence.
9