MURPHY, Circuit Judge.
Appellants F. Jeffrey Miller and Hallie Irvin were charged in an eleven-count indictment with a variety of crimes stemming from an alleged conspiracy to defraud mortgage lenders in connection with the subprime housing market. After a month-long jury trial, Miller and Irvin were each convicted on several of the charges and sentenced. They now appeal their convictions, citing numerous evidentiary and legal errors. Miller also challenges his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we now
Miller was a builder and developer involved in residential construction in Kansas, Missouri, and other states.
Despite the eagerness of lenders to extend mortgage loans, Sparks often had trouble securing financing for Vanatta's subprime applicants. In order to ensure that otherwise unqualified buyers could obtain financing, Sparks and Vanatta enhanced such buyers' apparent creditworthiness by, among other things, overstating the buyers' income, altering bank statements to add deposits, and drafting false letters of employment. The mortgage lenders were further induced to extend financing through Miller's use of inflated home appraisals, overvaluing the relevant properties and thereby enhancing the lenders' perceived loan-to-collateral ratio.
The government became aware of these fraudulent activities due to a report made by the accounting firm, Meara King & Company ("Meara King"). Meara King was monitoring Miller's business activities in accordance with a certain agreement entered into by Miller as a condition of his release in connection with another criminal prosecution (the "Monitoring Condition").
Sparks pled guilty to one count of conspiracy pursuant to an agreement whereby he agreed to testify against his co-defendants as a cooperating witness. The remaining defendants were tried on the following charges: conspiracy (Count 1); two counts of bank fraud (Counts 2 & 3); two counts of money laundering, each count tied to one of the substantive bank fraud charges (Counts 4 & 5); destroying records in a federal investigation (Count 6); corruptly influencing a witness (Count 8); and four counts of criminal contempt, for either violating the Monitoring Condition set in Miller I, or for aiding and abetting in those violations (Counts 9-12).
Prior to sentencing, Miller, Vanatta and Irvin moved for entry of judgments of acquittal, alleging insufficient evidence to sustain a conviction. Alternately, the defendants requested a new trial based upon certain alleged errors committed by the trial court. These motions were denied by the district court. Miller and Irvin now challenge their convictions on essentially the same grounds presented below. Miller also challenges his sentence.
The testimony of cooperating defendant Sparks formed much of the government's case against Miller and Irvin. Over the course of four days, Sparks described the various forgeries, misrepresentations, and other fraudulent activities he allegedly engaged in with Vanatta to obtain financing for unqualified buyers. In all, Sparks related the particulars of twenty-two separate transactions involving Miller-built homes. During this testimony, continual reference was made to government Exhibit 1-2, a chart displayed before the jury that purported to summarize the relevant details of these transactions. This chart was entitled "Summary of Fraud for JEFF MILLER et al., Fraud That Can Be Identified By James Sparks." It included information identifying the date, location, and buyer for each transaction, as well as a column labeled "False Statements to Lenders," which listed the various specific fraudulent representations and actions described by Sparks.
Exhibit 1-2 was initially offered by the government under Fed.R.Evid. 1006 as a summary of several boxes of "loan files" pertaining to the allegedly fraudulent home sales. The defendants vigorously resisted the admission of the summary chart, filing a motion in limine and repeatedly objecting during trial. The district court ultimately agreed with the government and admitted Exhibit 1-2 under Rule 1006. Arguing the requirements of Rule 1006 were not satisfied and the loan
Rule 1006 provides, in relevant part: "The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place." Fed. R.Evid. 1006. Although the materials upon which a Rule 1006 summary is based need not themselves be admitted into evidence, they must at least be admissible. United States v. Samaniego, 187 F.3d 1222, 1223 (10th Cir.1999).
Miller and Irvin argue the loan files purportedly summarized in Exhibit 1-2 constituted hearsay that was not shown to qualify for any exception to the prohibition on hearsay evidence. When this same challenge was raised before the district court, the government attempted to show the loan files were admissible under the business records exception established by Fed.R.Evid. 803(6). Pursuant to Rule 803(6), business records are admissible despite their hearsay nature if the records' custodian, or another qualified witness, testifies the records (1) were prepared in the normal course of business; (2) were made at or near the time of the events recorded; (3) were based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant; and (4) are not otherwise untrustworthy. United States v. Ary, 518 F.3d 775, 786 (10th Cir.2008). The government offered Sparks as the witness qualified to make these foundational showings. Sparks, however, testified the loan files were largely maintained by various title companies for whom he had not worked and under circumstances of which he had no personal knowledge. Furthermore, Sparks could not state whether the loan files were made or kept by the title companies in the regular course of their businesses. He also indicated that various documents within the loan files had been removed, destroyed, or otherwise modified. His testimony, therefore, was insufficient to establish the admissibility of the loan files as business records.
Before ruling on the admissibility of Exhibit 1-2, the district court acknowledged the documents summarized by a Rule 1006 chart must themselves be admissible. Nevertheless, it reasoned that, while Sparks's testimony had not established admissibility of the loan files under Rule 803(6), neither had the defendants demonstrated the loan files would not satisfy the business records exception if the government presented testimony from the appropriate records custodians. Because it had "heard nothing that contradicts the idea that [the loan files] are business records and would meet the business records exception," the district court overruled the hearsay objection and received Exhibit 1-2. It reaffirmed this ruling several times throughout the trial. The district court abused its discretion by admitting Exhibit 1-2.
The materials summarized by Rule 1006 evidence must themselves be admissible because a contrary rule "would inappropriately provide litigants with a means of avoiding rules governing the admission of evidence such as hearsay." Samaniego, 187 F.3d at 1224. Accordingly, just as the proponent of hearsay evidence bears the burden of establishing the applicability of a hearsay exception, Ary, 518 F.3d at 786, so too must the proponent of a
The government seeks to avoid this conclusion by explaining that, contrary to its representations before the district court, Exhibit 1-2 summarized not only the aforementioned loan files, but also the trial testimony of Sparks and other government witnesses.
Rule 611(a) provides that "[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment." Fed.R.Evid. 611(a). This directive has in some circuits been read as authorizing the use of summary exhibits for pedagogical purposes, wholly apart from Rule 1006. See, e.g., United States v. Milkiewicz, 470 F.3d 390, 397 (1st Cir.2006); United States v. Bray, 139 F.3d 1104, 1111-12 (6th Cir. 1998); United States v. Johnson, 54 F.3d 1150, 1157-59 (4th Cir.1995). Nothing in Rule 611(a) or the cases interpreting it, however, indicates that such pedagogical exhibits can be used to summarize otherwise inadmissible hearsay evidence, such as the loan files. Indeed, the cases discussing Rule 611(a) summaries typically require the summarized evidence to be affirmatively admitted into evidence. See Milkiewicz, 470 F.3d at 397 ("A summary chart used as a pedagogical device must be linked to evidence previously admitted...."); Bray, 139 F.3d at 1111 (same). Such a requirement is consistent with the spirit of Rule 611(a), which, in discussing the presentation of evidence, presupposes the suitability of such evidence for presentation, as well as our existing Rule 611(a) jurisprudence. See United States v. Stiger, 413 F.3d 1185, 1198 (10th Cir.2005) ("[A] party may only admit summary testimony under Fed.R.Evid. 611(a) if the District Court previously admitted at trial the evidence that forms the basis of the summary."). In short, resort to Rule 611(a) in no way resolves the hearsay problem that renders Exhibit 1-2 inadmissible.
This analysis, however, does not conclude the inquiry, because "this court applies a harmless error standard when reviewing trial courts' rulings on hearsay objections resting solely on the Federal Rules of Evidence." United States v. Collins, 575 F.3d 1069, 1073 (10th Cir.2009) (quotation and alteration omitted). "A harmless error is one that does not have a substantial influence on the outcome of the trial; nor does it leave one in grave doubt as to whether it had such effect." Id. (quotation omitted). In evaluating whether the district court's erroneous admission of Exhibit 1-2 was harmless, "we review
The government bears the burden of proving the error was harmless. United States v. Velarde, 214 F.3d 1204, 1211 (10th Cir.2000). It has not adequately carried this burden. Exhibit 1-2 was displayed before the jury throughout Sparks's direct testimony, listing the government's allegations using suggestive terminology (e.g., referring to commission payments as "kickbacks") and organizing them into a simple and comprehensible chart beneath condemnatory section headings (e.g., "Summary of Fraud for JEFF MILLER et al." and "False Statements to Lenders"). The district court itself later acknowledged the prejudicial influence of the exhibit's rhetorical aspects and ordered several redactions to the chart's accusatory terminology before sending it into jury deliberations. Although these revisions were appropriate, they came too late. More importantly, they did not address the core prejudicial impact of this inadmissible exhibit, i.e., the compelling simplicity with which Exhibit 1-2 reduced weeks of complex testimony and inadmissible hearsay into an easily digested summary.
The government itself confirmed this was the primary benefit of the summary chart. In advocating the propriety of Exhibit 1-2 before the district court, the government highlighted its significance: "The more that this document is challenged the more it emphasizes the importance, and particularly in a fraud case where we have a cooperating individual, of having a document that in one comprehensive format identifies the various kinds of frauds and the patterns." Focusing on the usefulness of Exhibit 1-2 in jury deliberations, the government further explained: "[I]t's more significant than ever that the jury have this back in the jury room ... as something that will be a roadmap...." The government's advocacy for Exhibit 1-2 in the district court belies its assertions of harmlessness on appeal. See United States v. DeLoach, 504 F.2d 185, 192 (D.C.Cir.1974) (noting that a prosecutor's "own estimation of his case, and of its reception by the jury at the time, is, if not the only, at least a highly relevant measure now of the likelihood of prejudice").
In contrast to the litany of direct evidence indicating Vanatta's and Sparks's illegal activities in furtherance of the conspiracy charged in Count 1, Miller's and Irvin's connections with the conspiracy were primarily supported by circumstantial evidence, such as Miller's admitted desire to sell his houses at the highest possible price and Irvin's preparation of invoices for "construction management fees" that secretly represented Vanatta's real estate marketing commissions. Although the evidence is sufficient to sustain the jury's verdict on Count 1 as a purely legal matter,
Nevertheless, the admission of Exhibit 1-2 was harmless error in relation to Counts 2, 4, 5, 9 and 10, which are discussed in greater detail below. Those counts — each of which alleged a discrete instance of criminal activity — did not present the factual complexity characteristic of the conspiracy in Count 1, and were therefore less susceptible to the summarization
Exhibit 2009 is an appraisal prepared by Pinnacle Appraisal Group LLC at the request of Meara King, the accounting firm monitoring Miller. The appraisal concerned the property sold by Miller in connection with the Jordan Transaction. It concluded the property was worth approximately $185,000, and that an earlier appraisal of $220,000 reflected an inflated valuation. Miller and Irvin objected to the admission of Exhibit 2009 on hearsay grounds, but the district court ruled the document was admissible as a business record pursuant to Fed.R.Evid. 803(6). Miller and Irvin now contend this ruling constituted reversible error.
Stephen Browne, a partner at Meara King, was called upon to provide the necessary foundational showing and testified that he and his firm regularly ordered, received, and relied upon such appraisals as a protocol in monitoring businesses, including Miller's. He further testified that Meara King routinely worked with Pinnacle in obtaining appraisals and that Exhibit 2009 was prepared by Pinnacle shortly after a request was made. Browne also explained that Meara King created a database where all information relating to the monitoring of Miller's businesses was stored, including any appraisals and accounting documents accumulated through the process.
Although Browne's testimony appears to provide all foundational showings required by Rule 803(6), Miller and Irvin argue it was insufficient to establish the admissibility of Exhibit 2009 as Meara King's business record because it was created by Pinnacle Appraisal Group and because Browne could not personally explain the basis for the appraisal's conclusions. They contend Exhibit 2009 could only be admitted as a business record upon the foundational testimony of the creator of the document, i.e., the appraiser himself. This argument directly contradicts the rule set forth by this court in United States v. Carranco, 551 F.2d 1197 (10th Cir.1977), which states that freight bills prepared by one company and incorporated into the records of another constitute the business records of the second company so long as the elements of Rule 803(6) are otherwise satisfied. Id. at 1199-1200; see also United States v. Adefehinti, 510 F.3d 319, 326 (D.C.Cir.2007) (holding that adoptive records can satisfy business records exception and listing circuits holding same). Furthermore, Carranco explicitly rejected the "anachronistic rule" that had once required foundational testimony for a business record be given by the preparer of such record. 551 F.2d at 1200 (citing Julander v. Ford Motor Co., 488 F.2d 839 (10th Cir.1973)).
Carranco remains good law today. Despite Miller's and Irvin's arguments to
Following the close of the government's evidence, and again following the close of all evidence at trial, Miller and Irvin moved for entry of judgments of acquittal pursuant to Fed.R.Crim.P. 29, arguing the evidence was insufficient to sustain their convictions. After the jury returned its verdict, the district court issued a lengthy Memorandum and Order addressing the Rule 29 motion as it pertained to the counts on which guilt was found, ultimately denying relief. Miller and Irvin now raise largely the same arguments on appeal.
In reviewing the sufficiency of the evidence and denial of a motion for judgment of acquittal, this court reviews the record de novo to determine whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. United States v. Wood, 207 F.3d 1222, 1228 (10th Cir.2000). This court does not "weigh conflicting evidence or consider witness credibility, as these duties are delegated exclusively to the jury. Instead, we presume that the jury's findings in evaluating the credibility of each witness are correct." United States v. Evans, 318 F.3d 1011, 1018 (10th Cir. 2003) (quotation and citation omitted).
In contrast with the majority of the charges, Count 2 alleged bank fraud by Miller, Vanatta, and Irvin in connection with their purchase, rather than sale, of a home. The home, located on Lake Ozark in central Missouri, was purchased with the intention that repairs and improvements would be made to the property, and it would then be sold for profit (hereafter the "Lake Ozark Transaction"). Miller and Irvin obtained the funds needed to purchase this property by cosigning on a mortgage loan issued by First National Bank of Camdenton, Missouri, with whom Miller had previously dealt successfully on several occasions. Because Irvin was a cosigner on the loan, First National Bank required her to submit certain financial information. Irvin provided the bank with what appeared to be official tax returns and a financial statement prepared by an accounting firm, but testimony at trial indicated these materials were fraudulent. First National Bank ultimately approved Miller's and Irvin's application for a $650,000 loan. In Count 2, the government charged that this transaction constituted bank fraud in violation of 18 U.S.C. § 1344. Although Miller was acquitted, Irvin was found guilty of Count 2.
Bank fraud is defined as the knowing execution, or attempted execution, of "a scheme or artifice (1) to defraud a financial institution; or (2) to obtain any of the
The record is, in fact, clear that the fraudulent financial information Irvin submitted to First National Bank had no impact on the ultimate issuance of the loan. As Mr. Niedergerke explained, his repeated successful dealings with Miller provided the sole basis of decision to recommend issuance of the mortgage loan to First National's loan committee. Consequently, Irvin's credit information was not even included in Niedergerke's presentation to the loan committee, in which he explicitly stated that "[n]o financial emphasis [had been] placed on Hallie Irvin" in forming his recommendation. None of this, however, forecloses the jury from rationally concluding that Irvin's representations were material.
"In general, a false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed." Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (quotation and alteration omitted); see also Akers, 215 F.3d at 1102 (citing United States v. Rodriguez, 140 F.3d 163, 168 (2d Cir.1998), for the proposition that a material misrepresentation is one "capable of influencing a bank's actions"). This definition, in referring to natural tendencies and capabilities, establishes materiality in the bank fraud context as an objective quality, unconcerned with the subjective effect that a defendant's representations actually had upon the bank's decision. Defining materiality in this way accords with the thrust of § 1344, which criminalizes the defendant's "scheme or artifice," rather than the completed fraud. Neder, 527 U.S. at 24, 25, 119 S.Ct. 1827 ("By prohibiting the `scheme to defraud,' rather than the completed fraud, the [subjective] elements of reliance and damage would clearly be inconsistent with the statutes Congress enacted."). It is therefore irrelevant whether Mr. Niedergerke or the First National Bank loan committee were in fact influenced by Irvin's fraudulent representations. The pertinent inquiry is instead whether Irvin's representations had the capability to so influence their decisions. By convicting Irvin of Count 2, the jury answered this question in the affirmative, and its finding is adequately supported by the record. Mr. Niedergerke's requirement that Irvin submit her financial information as part of the loan application process, for example, indicates the information was at least potentially relevant to the bank's decision, and Vanatta and Irvin's decision to falsify the requested information indicates they believed it to be so. Furthermore, Mr. Niedergerke testified it would have been relevant to the bank's decision to know that Irvin had submitted fraudulent tax returns. Because these facts, combined with testimony presented throughout the
Count 4 charged the defendants with laundering the proceeds they received from the act of bank fraud charged in Count 2. As with Count 2, Irvin was found guilty while Miller was acquitted. The money-laundering statute under which Irvin was tried and convicted, 18 U.S.C. § 1957(a), forbids a person from engaging "in a monetary transaction in criminally derived property of a value greater than $10,000" in which the property "is derived from specified unlawful activity." For Count 4, the "specified unlawful activity" was identified as the substantive act of bank fraud charged by the government in connection with the Lake Ozark Transaction. Accordingly, the jury was instructed that convicting any defendant on Count 4 required proof beyond a reasonable doubt of four elements: (1) the defendant engaged in a monetary transaction affecting interstate commerce; (2) the defendant knew the transaction involved criminally derived property; (3) the transaction involved property valued higher than $10,000; and (4) the property was derived from the act of bank fraud charged in connection with the Lake Ozark Transaction (i.e., the crime charged in Count 2). Irvin raises two challenges to the sufficiency of the evidence supporting her conviction on Count 4.
Irvin first argues that because there is insufficient evidence of materiality to support her conviction for the predicate bank fraud charged in Count 2, there is necessarily insufficient evidence to support the derivative crime of money laundering charged in Count 4. See United States v. Lake, 472 F.3d 1247, 1260-61 (10th Cir. 2007) (reversing conviction for money laundering where predicate act of wire fraud unsupported by sufficient evidence). As explained above, however, the record provides sufficient evidence of materiality to support the jury's verdict against Irvin on Count 2. Irvin's argument therefore rests on a mistaken premise and must be rejected.
Irvin's second argument challenges the sufficiency of the evidence supporting the jury's required finding that her money laundering transaction involved "criminally derived property." In the context of money laundering, "criminally derived property" is statutorily defined as "any property constituting, or derived from, proceeds obtained from a criminal offense," and the jury was so instructed. 18 U.S.C. § 1957(f)(2). At the time of Irvin's trial, however, the term "proceeds" was not defined by the statute.
The government identified the criminally obtained proceeds laundered in Count 4 to be the loan funds disbursed by First National Bank in connection with the Lake Ozark Transaction. The testimony of two witnesses at trial, however, indicated without contradiction that these loan funds did
Contrary to the Santos Instruction given by the district court, the term "proceeds," as used in the version of § 1957 effective at the time of Irvin's trial, is not strictly limited to profits. The district court's initial
Although the jury instructions given below defined the crime of money laundering more stringently than necessary, they do not direct our consideration of the sufficiency of the evidence. The government's timely objection to the "proceeds means profits" instruction prevented that instruction from becoming the law of the case. United States v. Williams, 376 F.3d 1048, 1051 (10th Cir.2004).
Properly considered, the crime of money laundering requires proof beyond a reasonable doubt that (1) the defendant engaged in or attempted to engage in a monetary transaction; (2) in criminally derived property worth at least $10,000;
Just as Counts 2 and 4 formed a linked pair (bank fraud and money laundering), so too did Counts 3 and 5. Count 3 charged defendants with bank fraud in connection with their efforts to obtain a mortgage loan for Ms. Kerrie Jordan from First Horizon Home Loan Corporation ("First Horizon"), in violation of 18 U.S.C. § 1344. The government presented evidence that Ms. Jordan's credit and financial history were insufficient to secure such a loan and the defendants therefore falsified her loan application submissions to increase her apparent credit-worthiness, inflating her monthly income and bank balances. Furthermore, the government presented evidence defendants had procured an artificially inflated appraisal of Ms. Jordan's intended home. First Horizon ultimately agreed to provide mortgage financing to Ms. Jordan in the amount of $176,000, of which $123,931.82 was used to pay off an outstanding construction loan on Ms. Jordan's new home. In Count 5, the government argued this use of the loan proceeds constituted money laundering in violation of 18 U.S.C. § 1957. The jury acquitted all defendants of the substantive act of bank fraud charged in Count 3, but found Miller, Irvin, and Vanatta guilty of the Count 5 money laundering charge. Miller and Irvin now challenge the sufficiency of the evidence supporting their convictions on Count 5.
To convict Miller and Irvin of money laundering in Count 5, the jury was required to find beyond a reasonable doubt that (1) the defendants knowingly engaged in a monetary transaction affecting interstate commerce; (2) knowing, at the time, that the transaction involved criminally derived property; (3) the transaction involved property of a value greater than $10,000; and (4) the property was derived from the specified unlawful activity of bank fraud in violation of 18 U.S.C. § 1344. Because the government identified the "specified unlawful activity" on which Count 5 rested as the crime charged in Count 3, the evidence must also be sufficient to support a rational jury's conclusion the laundered money constituted the proceeds of that substantive act of bank fraud. See, e.g., Lake, 472 F.3d at 1260-61 (reversing conviction for money laundering where insufficient evidence supported conviction on predicate offense of wire fraud). It is against the proof of this derivative requirement that Miller and Irvin primarily focus their challenge, but their arguments are quite different.
Miller contends that because the jury found him not guilty on Count 3, his conviction on Count 5 cannot stand. It is well-settled, however, that an inconsistent verdict is not a sufficient reason for setting a verdict aside. United States v.
Miller also challenges the evidence supporting the second required element of Count 5; namely, that he knew the transaction in question involved criminally derived property. He contends the only evidence he was aware of any wrongdoing in connection with the Jordan Transaction came from Ms. Jordan's testimony, in which she stated she complained to Miller about the increase in her sales price after the closing. Therefore, Miller reasons, the jury had no rational basis to conclude he had knowledge of the criminally derived nature of the loan proceeds prior to the laundering transaction. Miller understates the contents of the record. The government presented evidence the defendants surreptitiously increased the sales price for Ms. Jordan's home from $200,000 to $220,000 after it became apparent Ms. Jordan's original submissions would not be sufficient to obtain financing. Inflating the value of Ms. Jordan's home in this way had the effect of increasing the apparent loan-to-collateral ratio presented to First Horizon, thereby making the mortgage loan appear less risky. Other evidence indicated the $220,000 sales price was supported by an appraisal that overstated the value of the home by $35,000, and that Miller had contributed to this overvaluation by providing the appraiser with Miller-built comparables. Finally, testimony indicated that Miller set the final sales price for his homes and otherwise "controlled everything" about his business. Viewing the evidence in the light most favorable to the government, a rational jury could conclude Miller was aware the proceeds from Ms. Jordan's loan constituted criminally derived property given his personal involvement in the substantive act of bank fraud that procured them.
Irvin's attack on the sufficiency of the underlying bank fraud count is more nuanced. The government elected to submit Count 3 to the jury solely under the second prong of 18 U.S.C. § 1344, which prohibits the knowing execution, or attempted execution, of "a scheme or artifice ... to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises." (emphasis added). First Horizon, the lender to whom the defendants submitted Ms. Jordan's falsified loan application, did not accept deposits and lacked a certificate of FDIC insurance. It therefore did not constitute a "financial institution" under federal law applicable at the time. See 18 U.S.C. § 20 (2008).
The evidence adduced at trial indicates First Horizon was a wholly owned operating subsidiary of First Tennessee. To fund residential single-family mortgage loans, like the one extended to Ms. Jordan, First Horizon would draw on a $5 billion line of credit made available to it by First Tennessee. First Horizon would then bundle such loans into mortgage-backed securities within thirty to forty-five days of their origination and sell them to investment banks on the secondary market. The proceeds from these sales were then used to repay First Horizon's debts to First Tennessee. In deciding whether or not to issue a certain loan, First Horizon followed its own internal loan-application process and underwriting guidelines, and maintained its own team of due-diligence officers to confirm the security of its loans. First Tennessee played no role in First Horizon's loan-issuance decisions. Finally, the evidence specific to Ms. Jordan's mortgage loan identified First Horizon as the lender, and indicated First Horizon held the deed of trust on the Jordan property.
Irvin concludes from these facts that Ms. Jordan's mortgage loan was strictly the property of First Horizon, and was never owned by, or under the custody or control, of First Tennessee. Her reasoning in this regard appears correct, and First Tennessee's corporate ownership of First Horizon does not change the analysis for "[a] corporate parent which owns the shares of a subsidiary does not, for that reason alone, own or have legal title to the assets of the subsidiary." Dole Food Co. v. Patrickson, 538 U.S. 468, 475, 123 S.Ct. 1655, 155 L.Ed.2d 643 (2003). Count 3, however, did not charge the defendants with scheming to obtain the financial instrument representing Ms. Jordan's mortgage loan. Instead, the government charged them with "[s]ubmitting false loan application information for Kerrie Jordan, borrower, to First Horizon to obtain proceeds from First Tennessee Bank." (emphasis added). The single relevant fact, then, is that the loan proceeds disbursed from First Horizon upon its decision to fund Ms. Jordan's mortgage indisputably came from the credit line extended to it by First Tennessee. As former First Horizon litigation analyst Ed Hyne testified at trial, only once the underwriters at First Horizon made the decision to fund a particular loan would it draw against its line of credit with First Tennessee. A rational trier of fact would be perfectly justified in concluding that, until such time, the funds comprising the line of credit were owned by, and in the custody and control of, First Tennessee.
Counts 9 and 10 charged the defendants with violating 18 U.S.C. § 3148(c).
Miller first contends his conviction on Count 9 must fail because it was specifically linked to the crime charged in Count 3. Because the jury acquitted him of the bank fraud charged in Count 3, he reasons, the government failed to prove a necessary element for conviction on Count 9. As discussed in the context of Miller's challenge to Count 5, however, "consistency in verdicts is not required," and an inconsistent verdict provides no reason for setting a conviction aside. Powell, 469 U.S. at 64-66, 105 S.Ct. 471. His conviction on Count 9 is affirmed.
Miller also contends his conviction on Count 10 must fall because it was specifically linked to the crime charged in Count 5, which he believes was unsupported by sufficient evidence for the reasons discussed in Section III(B)(4), supra. That argument is, as demonstrated by the above analysis, flawed. Miller's conviction on Count 5 was supported by adequate evidence, and Miller's conviction on Count 10 is therefore affirmed.
Irvin contends nothing in the record indicates she was even aware of Miller's conditions of release from Miller I, and that without proof of such knowledge the jury could not rationally have found that she knowingly aided and abetted Miller's violation of those conditions. See United States v. Green, 175 F.3d 822, 832 (10th Cir.1999) ("The essence of aiding and abetting liability is proof the defendant willfully associated with a criminal venture and sought through some affirmative action to make that venture succeed." (quotation omitted)). The government offers no direct evidence in contradiction of Irvin's position. It instead argues the record contains circumstantial evidence that, when viewed in the light most favorable to the government and combined with all permissible inferences, supports the jury's conclusion Irvin was aware of Miller's conditions of release. Sparks's testimony he found out about Miller's conditions of release from Vanatta, for example, is cited by the government as sufficient evidence to support a rational person's conclusion that Vanatta also informed Irvin of the conditions. Other evidence indicated business monitor Steve Browne had been to Miller's office to examine certain records,
This evidence, without more, is insufficient to support the jury's conclusion that Irvin knew of Miller's conditions of release. "While the jury may draw reasonable inferences from direct or circumstantial evidence, an inference must be more than speculation and conjecture to be reasonable, and caution must be taken that the conviction not be obtained by piling inference on inference." United States v. Jones, 44 F.3d 860, 865 (10th Cir.1995) (quotations omitted). Both routes to proving Irvin's knowledge proposed by the government go beyond the realm of "reasonable inferences" and into impermissible speculation. The conclusion that "if Vanatta told Sparks, he must have told Irvin" rests on no logical basis whatsoever. Similarly, although Browne's presence in the office and review of the Lake Ozark Transaction might have been noticed by Irvin,
In its closing argument, the government made the following statements to the jury:
(emphasis added). Miller and Irvin contemporaneously objected to the emphasized language as unduly inflammatory, and cited it as grounds for a mistrial. The district court overruled this objection and denied the mistrial, reasoning that (i) the government's commentary was justified in light of the evidence that Miller and Irvin were involved in the subprime mortgage market; (ii) the government had qualified its statement by indicating that defendants were not the sole cause of the subprime crisis; and (iii) any possible impact of the government's commentary was mitigated by cautionary instructions. It later reminded the jury during final instructions that statements of counsel were not to be viewed as evidence.
"Where the defendant contemporaneously moves for a mistrial on the basis of prosecutorial misconduct, we review the denial of such a motion for abuse of discretion." United States v. Taylor, 514 F.3d 1092, 1095 (10th Cir.2008). This review requires determinations whether (1) the prosecutor's statements were improper and (2) if so, whether the statements were "harmless beyond a reasonable doubt." United States v. Martinez-Nava, 838 F.2d 411, 416 (10th Cir.1988). Miller and Irvin cannot show the district court's ruling constituted an abuse of discretion on either aspect of this inquiry. First, the government's statements were not improper. Miller himself testified that his use of "creative financing" to obtain financing for unqualified buyers was helpful to society, and the government is entitled to considerable latitude in responding to such arguments during its closing. See, e.g., United States v. Villa-Chaparro, 115 F.3d 797, 803 (10th Cir.1997); United States v. Janus Indus., 48 F.3d 1548, 1558 (10th Cir.1995). Even if the challenged statements were improper, however, they did not deprive Miller and Irvin of a fair trial because they were harmless. In evaluating the harm or prejudice of an improper statement, this court must consider the extent of the misconduct; whether the district court took steps to mitigate the impact of the misconduct; and the role of the misconduct within the case as a whole. Martinez-Nava, 838 F.2d at 416. The conduct complained of here comprises two sentences made over the course of a month-long trial, in response to Miller's own testimony. The district court took pains, during closing arguments and again during final instructions, to ensure the jury understood that statements of counsel did not constitute evidence. And the government's case was otherwise devoid of any suggestion the defendants were responsible for the subprime mortgage crisis. The government's closing argument was therefore neither improper nor prejudicial, and the district court's denial of a mistrial is affirmed.
Miller contends that, to the extent none of the above-described allegations of error provide sufficient grounds for reversal of his conviction, their cumulative prejudicial impact is such that he should nevertheless be entitled to a new trial.
Miller challenges the sentence imposed upon him by the district court. He contends the district court improperly calculated the intended loss attributable to his criminal conduct and improperly applied sentencing enhancements for his use of sophisticated means and role as organizer or leader of the criminal enterprise. Because Miller's conviction for conspiracy to commit bank fraud has been reversed, and because the conspiracy count was used to determine Miller's offense level, his sentence must be recalculated on remand. See U.S.S.G. § 3D1.3(b) (directing the application of the "offense guideline that produces the highest offense level" in the case of counts grouped together pursuant to § 3D1.2(d) and involving offenses of the same general type). We therefore decline to pass upon the district court's methodology in determining the intended loss flowing from his crimes. Similarly, the sophisticated means enhancement constituted a specific offense characteristic of the reversed conspiracy charge, and Miller's challenge to its applicability need not be addressed at this time. See id. § 2B1.1(b)(9)(C).
The reversal of Miller's conviction on the conspiracy count does not, however, prevent the court from reviewing the applicability of the four-level Organizer/Leader enhancement provided under U.S.S.G. § 3B1.1(a), as that enhancement need not be linked to a specific crime of conviction. See id. § ch. 3, pt. B, introductory cmt.
United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir.2009) (quotation omitted). In its written order ruling on the parties' objections to the Presentence Report, the district court listed what it considered to be the relevant conduct for purposes of the Organizer/Leader enhancement:
Miller contends that these findings are insufficient to support the district court's application of the Organizer/Leader enhancement, a contention we review de novo.
Sentencing Guidelines § 3B1.1(a) prescribes the application of a four-level increase to a defendant's offense level "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." A defendant may be ruled an organizer or leader upon consideration of
Id. § 3B1. 1, cmt. n. 4. Furthermore, the determination of a defendant's leadership role should be premised on "all conduct within the scope of § 1B1.3 (Relevant Conduct)," id. ch. 3, pt. B, introductory cmt. Such conduct includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant ... that occurred during the commission of the offense of conviction [or] in preparation for that offense." Id. § 1B1.3(a)(1)(A). The factual findings listed as the basis for the Organizer/Leader enhancement, although cited by the district court as conduct relevant to Miller's conspiracy conviction, are equally relevant to Miller's money laundering conviction on Count 5, which rested upon a predicate offense of bank fraud perpetrated in the same manner as the bank fraud charged in the conspiracy count. They are now adopted by this court as the conduct relevant to his money laundering conviction on Count 5 for purposes of determining whether Miller was an organizer or leader.
So defined, Miller's relevant conduct justifies the application of the four-level Organizer/Leader enhancement of § 3B1.1(a). The district court's findings support the conclusion that the criminal activity involved five or more participants (Vanatta, Irvin, Sparks, Sandra Harris, and Miller himself) and that Miller (1) played a central role in the commission of their criminal activities; (2) recruited accomplices to the criminal activity, such as Vanatta; and (3) directed the criminal activity to the extent he retained final authority over sales prices. Rather than offer any argument negating the preceding conclusions, Miller merely complains that neither Sparks nor Middleton directly testified that he was their leader, and that Sparks admitted engaging in bank fraud independent of Miller's involvement. Nevertheless, the indicia of leadership listed in the commentary to § 3B1.1(4) are present, and the district court did not err in applying the Organizer/Leader enhancement.
For the foregoing reasons, Miller's conviction on Count 1, and Irvin's convictions on Counts 1, 9, and 10 are REVERSED. Their remaining convictions are AFFIRMED. Furthermore, the district court's application of the Organizer/Leader enhancement to Miller's sentence is AFFIRMED. The matters are remanded to the district court for further proceedings not inconsistent with this opinion.