Mortgage Fraud Defendant Raises Numerous Issues, Conviction and Sentence Affirmed
U.S. v. Mullins, 2010 WL 2947873 (7/29/10) (Colo) (Published) - Another lengthy opinion in a white-collar case, but affirmance on all issues. This is another case where the defendants helped to deceive lenders about the financial wherewithal of lower-income home buyers.
(1) The 10-year, rather than the usual 5-year statute of limitations, applied because the offenses "affected a financial institution" under 18 U.S.C. ยง 3293(2), because the defendants exposed the banks to a new or increased risk of loss, even though the banks may not have incurred an actual loss.
(2) There was sufficient evidence to prove the defendants could have reasonably foreseen that interstate wire communications would be used as a result of their offenses [assuming without deciding such a mens rea had to be proven]. The government did not have to prove the defendants anticipated any particular wire communication. It was enough that the defendants should have known the FHA in D.C. would be contacted.
(3) The district court did not deny the defendant her right to confrontation by precluding cross of a government witness concerning whether any tax evasion charges had been filed against him, in an effort to show the government agreed not to prosecute him on the charges in exchange for his testimony. The defense got to ask all sorts of other impeaching questions about the breaks the government gave the witness, including that the government said he didn't have to pay taxes he owed. [The 10th noted, without deciding, an intra-circuit conflict as to whether Confrontation Clause questions are reviewed de novo or for an abuse of discretion].
(4) Making a false statement to HUD was not a lesser-included offense of wire fraud and so the defendant was not entitled to a lesser-included offense instruction. It didn't matter if the same evidence in this case would be used to prove each offense. Only the elements matter and the elements of the HUD offense were not a sub-set of the fraud offense. (5) Assuming the defendant had a right to counsel under the 6th Amendment after her charges were dismissed and before new charges were filed, the CI's questioning of the defendant did not violate the 6th Amendment because the defendant ultimately was not convicted of the charges in the initial indictment, even though they were factually related to the offenses the defendant was convicted of. Government counsel did not violate any ethical codes by sending the CI to question the defendant because government counsel did not know she was represented by an attorney.
(6) The jury did not have to be unanimous as to which person the defendant aided and abetted.
(7) The district court did not clearly err when it determined the loss the defendant caused based on the sales prices of the homes, even though the sales prices were much lower than the appraisals a year earlier. The precipitous reduction in value was reasonably foreseeable.
(8) The d. ct.'s apparent oversight in counting one refinanced property in the final loss calculation but excluding two other refinanced properties, was the defendant's fault for not objecting. The defendant could not prove under the plain error standard of review that the error would have made a difference in her sentence, even though it put her in a higher offense level, since the d. ct. did give her a "generous" downward variance.
(9) The district court's statement that it determined a particular forfeiture amount, "absent contrary evidence," did not indicate it wrongly put the burden of proof on the defendant.
(1) The 10-year, rather than the usual 5-year statute of limitations, applied because the offenses "affected a financial institution" under 18 U.S.C. ยง 3293(2), because the defendants exposed the banks to a new or increased risk of loss, even though the banks may not have incurred an actual loss.
(2) There was sufficient evidence to prove the defendants could have reasonably foreseen that interstate wire communications would be used as a result of their offenses [assuming without deciding such a mens rea had to be proven]. The government did not have to prove the defendants anticipated any particular wire communication. It was enough that the defendants should have known the FHA in D.C. would be contacted.
(3) The district court did not deny the defendant her right to confrontation by precluding cross of a government witness concerning whether any tax evasion charges had been filed against him, in an effort to show the government agreed not to prosecute him on the charges in exchange for his testimony. The defense got to ask all sorts of other impeaching questions about the breaks the government gave the witness, including that the government said he didn't have to pay taxes he owed. [The 10th noted, without deciding, an intra-circuit conflict as to whether Confrontation Clause questions are reviewed de novo or for an abuse of discretion].
(4) Making a false statement to HUD was not a lesser-included offense of wire fraud and so the defendant was not entitled to a lesser-included offense instruction. It didn't matter if the same evidence in this case would be used to prove each offense. Only the elements matter and the elements of the HUD offense were not a sub-set of the fraud offense. (5) Assuming the defendant had a right to counsel under the 6th Amendment after her charges were dismissed and before new charges were filed, the CI's questioning of the defendant did not violate the 6th Amendment because the defendant ultimately was not convicted of the charges in the initial indictment, even though they were factually related to the offenses the defendant was convicted of. Government counsel did not violate any ethical codes by sending the CI to question the defendant because government counsel did not know she was represented by an attorney.
(6) The jury did not have to be unanimous as to which person the defendant aided and abetted.
(7) The district court did not clearly err when it determined the loss the defendant caused based on the sales prices of the homes, even though the sales prices were much lower than the appraisals a year earlier. The precipitous reduction in value was reasonably foreseeable.
(8) The d. ct.'s apparent oversight in counting one refinanced property in the final loss calculation but excluding two other refinanced properties, was the defendant's fault for not objecting. The defendant could not prove under the plain error standard of review that the error would have made a difference in her sentence, even though it put her in a higher offense level, since the d. ct. did give her a "generous" downward variance.
(9) The district court's statement that it determined a particular forfeiture amount, "absent contrary evidence," did not indicate it wrongly put the burden of proof on the defendant.
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