Filed: Apr. 28, 2011
Latest Update: Feb. 22, 2020
Summary: FILED United States Court of Appeals Tenth Circuit April 28, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT _ UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 10-1271 v. (D.Ct. No. 1:09-CR-00157-WYD-1) (D. Colo.) ALTON JOHN SMITH, a/k/a Austin O. Ikeme, Defendant-Appellant. _ ORDER AND JUDGMENT * Before BARRETT, ANDERSON, and BRORBY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to honor the parties
Summary: FILED United States Court of Appeals Tenth Circuit April 28, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT _ UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 10-1271 v. (D.Ct. No. 1:09-CR-00157-WYD-1) (D. Colo.) ALTON JOHN SMITH, a/k/a Austin O. Ikeme, Defendant-Appellant. _ ORDER AND JUDGMENT * Before BARRETT, ANDERSON, and BRORBY, Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’..
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FILED
United States Court of Appeals
Tenth Circuit
April 28, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-1271
v. (D.Ct. No. 1:09-CR-00157-WYD-1)
(D. Colo.)
ALTON JOHN SMITH, a/k/a Austin O.
Ikeme,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Defendant Alton John Smith appeals his conviction on grounds the district
court erred in denying his motion for acquittal, arguing the government failed to
provide evidence he committed the fraudulent acts for which he was convicted.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Mr. Smith’s
conviction.
I. Procedural Background
Mr. Smith pled not guilty to an indictment charging him with four counts of
fraud, in violation of 18 U.S.C. §§ 2 and 1344(1), against Wells Fargo, a banking
institution with branch offices in Denver, Colorado; and Security Service Federal
Credit Union, another Denver financial institution. During his trial, the
government presented witness testimony and other documentary evidence in
support of its case against Mr. Smith. At the conclusion of the government’s
evidence, Mr. Smith offered no testimony or other evidence to rebut its evidence
or in support of his defense but moved for acquittal on all four counts, arguing the
government failed to prove he is the individual who committed the fraudulent acts
or otherwise provide the documents on which the fraudulent acts were
perpetrated. The district court denied the motion to acquit, and the jury found
Mr. Smith guilty of fraud on all four counts. Thereafter, the district court
sentenced him to sixty months imprisonment on each count, to run concurrently.
-2-
Through counsel, Mr. Smith now appeals his convictions on three of the
four fraud counts, renewing his argument the government failed to prove he is the
individual who committed the fraud perpetrated against Wells Fargo and, as a
result, claiming the district court erred in denying his motion for acquittal. While
he concedes the government proved someone using the fictitious name of Austin
Ikeme and fraudulent documents obtained three different loans from Wells Fargo,
he argues it failed to prove he was the person who used that identity to obtain the
loans or who furnished the fraudulent documents. As to the fourth fraud count
concerning an automobile loan, Mr. Smith now concedes the government proved
he used the fictitious name Austin Ikeme and provided fraudulent documents to
obtain his automobile loan from Security Service. However, he requests
resentencing on that count. Finally, in a pro se reply brief which we granted Mr.
Smith permission to file, he claims the government failed to prove two of the
entities affiliated with Wells Fargo and Security Service and involved in the
fraudulent transactions are “FDIC-insured” or “financial institutions,” as required
for his convictions. In discussing the issues presented, we provide only the
material facts necessary to dispose of Mr. Smith’s appeal, which are gleaned from
the government’s evidence presented at trial and which Mr. Smith failed to rebut.
-3-
II. Factual Background
A. Mortgage Counts
To begin, from November 2001 to April 2002, Mr. Smith worked at a
branch office of Wells Fargo as a personal banker who opened accounts and took
loan applications. While he did not work in underwriting or mortgage loans, he
was involved in home equity lines of credit tied to first mortgage purchases.
Some years later, after leaving Wells Fargo’s employment and during the
commission of the fraudulent schemes on which Mr. Smith was convicted, he
became acquainted with Ben Serrano, who worked for Golden Design Group,
which built homes for sale, including a home at 5686 Vistancia Court in Parker,
Colorado.
Starting in 2006, a series of checking accounts were opened at a branch
office of another Denver financial institution, Bank of the West, and through the
use of those accounts, the instant fraud schemes were perpetrated. First, Mr.
Smith’s wife, Stacy Smith, opened a personal checking account at Wells Fargo in
2006; on September 19, 2007, Mr. Smith also opened a checking account at Bank
of the West for his business, Marrick Entertainment, using his name as a
signatory and indicating it was for the purpose of obtaining a mortgage. Shortly
thereafter, on November 1, 2007, someone presenting himself as Austin Ikeme
also opened a personal checking account at Bank of the West, providing a fake
-4-
date of birth of September 20, 1972, and false Social Security number ending in
5791. 1 On November 5, 2007, only four days after the Ikeme checking account
was opened, another signatory was added to the Marrick Entertainment checking
account in the fictitious name of Austin Ikeme, with a false date of birth, driver’s
license, and Social Security number for that person.
A later investigation by an FBI agent, Scott Doner, revealed Marrick
Entertainment was incorporated in Nevada in September 2007, with Alton J.
Smith and Alton J. Smith II listed as corporate officers. However, paperwork
filed in November 2007 showed Mr. Ikeme holding all officer positions, while
paperwork filed in December 2007 showed a transfer of all officer positions back
to Alton J. Smith. In addition, the Colorado incorporation documents of Marrick
Entertainment filed in September 2007 showed the registered agent and
incorporator to be Alton Smith. During the investigation, Agent Doner also found
no evidence Marrick Entertainment actually engaged in any business.
Sometime in late 2007, David Bliesmer, a loan officer with Colorado
Mortgage Alliance – an entity associated with Wells Fargo – came in contact,
through Mr. Serrano, with a person using the same fictitious name Austin Ikeme
1
For the protection of the actual person possessing this Social Security
number, we refer only to the last four digits of the Social Security number
fraudulently used by the fictitious Mr. Ikeme.
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and the same false Social Security number ending in 5791 and September 20,
1972 birth date used on the Austin Ikeme personal checking account. The person
acting as Mr. Ikeme filed paperwork applying for a $982,000 mortgage loan and a
$100,000 second mortgage loan from Wells Fargo to purchase the Vistancia Court
residence for sale by Mr. Serrano. Mr. Ikeme was both the buyer and borrower on
the closing documents and signed the mortgage loan applications.
A later investigation disclosed the documents used to secure the loans were
false or fictitious and included fake California and Colorado driver’s licenses for
Mr. Ikeme, 2 fictitious income and payroll documents from Marrick Entertainment
for Mr. Ikeme, and falsified bank statements for Mr. Ikeme’s personal checking
account at Bank of the West. These documents falsely indicated Mr. Ikeme
worked at Marrick Entertainment for almost eight years, was CEO of the
business, earned a monthly gross income of $21,973, held $265,311 in his
checking account at Bank of the West, and had assets worth $265,311. In
gathering this information and documentation, Mr. Bliesmer only dealt with
Austin Ikeme over the telephone, and he received the loan documents and
applications from Mr. Ikeme by either fax or email attachment.
2
As explained hereafter, Mr. Smith, using the fictitious name of Austin
Ikeme, provided a fake Colorado driver’s license at the unsuccessful closing on
the Vistancia Court property and later used a fake California driver’s license for
the successful closing on the same property.
-6-
On December 11, 2007, prior to the discovery of these documents being
fraudulent, a cashier’s check from Mr. Ikeme’s personal checking account was
presented at the closing on the Vistancia Court residence for the purpose of
covering Mr. Ikeme’s costs as the purchaser. The funds for the closing came
from a company called K & K located in California which, prior to the closing,
deposited $125,000 into Mr. Ikeme’s personal checking account, and also from
Mr. Serrano, who deposited most of an additional $17,000 deposited into the same
account. However, the title company refused to close on the transaction because
the Colorado driver’s license presented to identify Mr. Ikeme appeared fake. As a
consequence, the closing did not occur and someone from the title company
contacted a representative of Bank of the West about the situation and returned
the funds provided, including its refund to K & K of the $125,000 it had
previously deposited into the Austin Ikeme checking account. Mr. Bliesmer, who
did not attend the closing, called and questioned Mr. Ikeme about the fake
driver’s license; Mr. Ikeme told him he had gone through a name change, had
registered his new name in California, and his previous name had been Alton
Smith.
Diane Saia, a Bank of the West fraud investigator, commenced an
investigation into the closing and set up an in-person interview with Mr. Smith,
who admitted to her that he used the name of Austin Ikeme – the name which
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appeared on the personal checking account he attempted to use for his closing
costs. Mr. Smith also told her that he was working on legally changing his name
to Austin Ikeme, and thought he had successfully done so in California.
However, when he provided the purported Colorado paperwork for a name
change, it looked completely bogus to her. In addition, he admitted he purchased
the Colorado driver’s license, at issue at the closing, from somebody off the street
in Denver for $250. At trial, Ms. Saia identified Mr. Smith as the person she met
with during that meeting.
Meanwhile, Mr. Serrano, acting as an agent for the seller of the Vistancia
Court property, contacted another title company, and on December 21, 2007, Mr.
Ikeme closed on the property using buyer’s funds which came from Stacy Smith’s
checking account at Bank of the West, where K & K had re-deposited the money
it received back from the title company after the failed closing. This money
helped to cover the approximate $12,000 in closing costs and $183,812.61 down
payment paid by Mr. Ikeme. In addition, rather than using the Colorado license
which prevented the previous closing, Mr. Ikeme used a fake California driver’s
license which apparently did not raise the same suspicions.
At trial, Mr. Bliesmer identified the documents used to support Mr. Ikeme’s
loan applications for the first and second mortgages. He and two Wells Fargo
-8-
employees testified the same fraudulent documents, including the fake California
driver’s license, were used simultaneously by Wells Fargo in closing on both
mortgages. He also testified he may have never met the borrower, although he
believed he met the person representing himself to be Austin Ikeme at the second
closing. However, he did not think he could recognize him any longer and,
therefore, was unable to identify Mr. Smith at trial as a person attending the
closing. He did, however, recall Mr. Serrano attending the closing.
Following the closing, Lisa Tennyson, a financial crime investigator at
Wells Fargo, began an investigation of the loans Mr. Ikeme obtained and
discovered numerous falsities in the documentation and information contained
therein. In sum, Wells Fargo loaned $1,082,000 to Austin Ikeme for both
mortgage loans and, after only one payment was ever made on the property, Wells
Fargo foreclosed on the property. The property later sold for only $533,000,
resulting in a loss of approximately $550,000.
On December 28, 2007, only a week after the closing, someone applied to
open a new checking account at Bank of the West using the false identity of
Austin Ikeme and the same fake: (1) Social Security number ending in 5791; (2)
September 20, 1972 date of birth; and (3) California driver’s license in the name
of Austin Ikeme, also using the same September birth date. In attempting to open
-9-
the checking account, Mr. Ikeme presented a check for deposit made payable to
EMK Products in the amount of $54,000 from Stacy Smith’s checking account at
Bank of the West. A bank surveillance photograph showed Mr. Smith was the
person who obtained the cashier’s check.
The signature verification and account application forms listed Mr. Ikeme’s
address as the Vistancia Court address and provided a telephone number. The
teller, who believed the California driver’s license presented was fake,
immediately contacted the Parker Police Department and turned the cashier’s
check and other documents over to Detective Jeremy Stucker. When Detective
Stucker called the telephone number on the account application form, a male
answered identifying himself as Austin Ikeme and agreed to meet him at the
police station to discuss the driver’s license provided to the bank.
Detective Stucker testified that after Mr. Smith arrived at the station he was
able to determine Mr. Smith was the person pictured as Austin Ikeme on the fake
California driver’s license. In addition, although Mr. Smith first identified
himself as being Austin Ikeme, he admitted during their conversation he was in
fact Alton Smith and then provided a legitimate Colorado driver’s license in his
name with his photo and actual Social Security number and date of birth, which
were different than those provided for Mr. Ikeme. Mr. Smith also identified the
-10-
fake California driver’s license as the one he presented to the bank when
attempting to set up the new checking account and verified that he went by the
name of Austin Ikeme. He also stated the check he intended to deposit came from
his wife, Stacy Smith, for the purpose of opening an account for his business,
EMK. Mr. Smith then presented a passport photo of himself and a name-change
form with his name as well as the name of Austin Ikeme on it and explained it
was intended for the Colorado Division of Registration. However, Detective
Stucker noticed it contained a different Social Security number than the one on
the account application. At trial, Detective Stucker identified Mr. Smith as the
person with whom he met after calling the telephone number associated with the
newest Austin Ikeme account and Vistancia Court address.
Another detective, Sherry Corcoran, testified she received a report and
evidence from Detective Stucker and verified the person in question was Alton
Smith. On January 3, 2008, after Mr. Smith attempted to contact her, Detective
Corcoran returned his calls by calling the phone number for him provided by
Detective Stucker. The person she reached identified himself as Alton Smith and
told her there was a misunderstanding at the police department, he was going
through a name change, he wanted to prove his name change and business were
legitimate, and he could bring documents proving this to the police department.
-11-
Detective Corcoran also testified Mr. Smith stuttered on the phone after she
pointed out his real birth date was February 18, 1971, while the date of birth on
his California driver’s license and checking account information he provided was
the September date. When asked about the California license, Mr. Smith admitted
he purchased it in Los Angeles for $6,000. As to the fake Social Security number
ending in 5791, he told her he had no idea whose number it was and that he never
used it before. Ultimately, Mr. Smith never produced the promised paperwork,
and during a later telephone conversation, when Detective Corcoran asked him
about the mortgage loans on the Vistancia Court property, he denied knowing
anything about them. She also testified that through the Social Security
Administration she learned the Social Security number in question belonged to a
female born in 2003.
B. Personal Line of Credit Count
Testimony of a Wells Fargo investigator also established that in May 2008,
someone acting as Austin Ikeme applied by telephone for a personal line of credit
from Wells Fargo in the amount $49,700. In submitting the application for the
loan, Mr. Ikeme used the same or similar false information used in the two
aforementioned mortgage loan applications, including the same fake name, date of
-12-
birth, 3 Social Security number, California driver’s license, and Marrick
Entertainment employer information and monthly income, as well as use of the
Vistancia Court address. The application also listed Alton Smith as an additional
borrower with a different Social Security number and date of birth, and the form
was signed by both Alton Smith and Austin Ikeme. In explaining how the same
person might provide two different signatures without raising any suspicion it was
the same person, the Wells Fargo investigator pointed out applicants typically
sign the application form in front of a bank representative, but if two borrowers
exist, they might come in to sign it at different times and even at different branch
offices.
In early May 2008, Wells Fargo approved the personal line of credit for Mr.
Ikeme in the amount of $49,700. Five days after the loan was approved, $10,000
was drawn in person from the Ikeme line of credit and deposited into the Marrick
Entertainment business checking account on which Mr. Ikeme and Mr. Smith
were both signatories. During the rest of May and June 2008, the balance of the
personal line of credit was withdrawn and moved into the same Marrick
Entertainment account. One of these withdrawals occurred on May 14, 2008, in
3
The date of birth listed on the first mortgage application for Mr. Ikeme
listed his date of birth as September 20, 1972, while his second mortgage
application listed it as June 10, 1972; like the second mortgage, the personal line
of credit information listed Mr. Ikeme’s date of birth as June 10, 1972.
-13-
the amount of $3,000 in the name of Alton Smith; a surveillance photo positively
showed Mr. Smith making the withdrawal. Wells Fargo eventually incurred a loss
of $49,700 when no payments were received on the loan.
C. Automobile Loan Count
Sometime in the fall of 2007, Nicholas Michael Wood, who worked at
Centennial Leasing and Sales – an automobile dealership – came into contact with
Austin Ikeme, whom he met through Ben Serrano. Mr. Wood initially dealt with
Mr. Ikeme over the telephone when he leased three cars on behalf of Marrick
Entertainment, and Mr. Wood did not meet Mr. Ikeme in person until he delivered
the leased vehicles to him at the Vistancia Court address, where he also picked up
paperwork from Mr. Ikeme. At that time, Mr. Wood recognized Mr. Ikeme as the
person called “Alton” whom he met earlier at a Super Bowl party held at Mr.
Serrano’s house. Later, in May 2008, Mr. Wood assisted Mr. Ikeme in purchasing
a vehicle – a 2008 Chrysler Aspen – including supplying him with the necessary
application for a loan from Security Service, which Mr. Ikeme filled out at the
dealership and which Mr. Wood witnessed him signing. At trial, Mr. Wood
identified Mr. Smith as the person who represented himself to be Mr. Ikeme
during these transactions.
In addition, Michael Vernon Dillingham, a representative of Security
-14-
Service, testified as to Mr. Ikeme’s May 2008 purchase of the Chrysler Aspen
from Mr. Wood’s automobile dealership. According to him, someone going by
the name of Mr. Ikeme obtained an automobile loan from Security Service in the
amount of $42,824.32. The application for the loan falsely identified Mr. Ikeme’s
employer as Marrick Entertainment and stated he earned a monthly income of
$9,000. Mr. Ikeme’s loan application also listed Stacy and Alton Smith as the
named insureds. As with the other loans, Mr. Ikeme defaulted on the automobile
loan.
D. Indictment and Additional Testimony
On September 17, 2009, an indictment issued against Mr. Smith for the four
counts of fraud against federally-insured financial institutions in violation of 18
U.S.C. §§ 2 and 1344(1). 4 On October 13, 2009, one month after the indictment
4
Count One (First Mortgage Count) alleged Mr. Smith, using the fictitious
identity of Austin Ikeme, a false Social Security number, date of birth, and other
false identification documents, knowingly attempted to execute or executed a
scheme to defraud Wells Fargo by submitting a mortgage loan application
containing fictitious information and supported by false documentation, including
fake income and payroll documents associated with Marrick Entertainment and
false bank statements from a Bank of the West checking account, for the purpose
of obtaining a loan in the amount of $982,000 for the purchase of a home at 5686
Vistancia Court, Parker, Colorado. Count Two (Second Mortgage Count) adopted
most of Count One’s description of the overall scheme and alleged Mr. Smith,
using the Ikeme identity, knowingly executed or attempted to execute a scheme to
defraud Wells Fargo by submitting a home equity line of credit application to be
secured by the property at 5686 Vistancia Court. Count Three (Line of Credit
Count) similarly adopted the overall scheme described in Count One and alleged
(continued...)
-15-
issued against him, Mr. Smith contacted Diana Dreiling, an employee of Wells
Fargo with whom he had worked from November 2001 to April 2002. She had
not spoken to him since he left Wells Fargo’s employment but accepted an
invitation to meet him for lunch the next day. According to Ms. Dreiling, when
she met with Mr. Smith he told her his house had been foreclosed on after he
hooked up with a builder and the builder represented to him that if Mr. Smith
could qualify for a loan, Mr. Smith could get his money back. Mr. Smith
explained that when he told them he could not qualify because of his credit rating,
they sent him to California for a false identity, but ultimately they did not come
through with their promise. He also admitted he knew what he did was wrong but
he was desperate.
In addition, he told her Wells Fargo gave him a line of credit and he
intended to pay off the loan with funds from a settlement his mother was
receiving. He then asked Ms. Dreiling if she could get him the telephone
numbers of two people he had worked with at Wells Fargo because he wanted to
4
(...continued)
Mr. Smith, using the Ikeme identity, knowingly executed or attempted to execute
the scheme to defraud Wells Fargo by submitting an application for a personal
line of credit in the amount of $49,700. Finally, Count Four (Automobile Loan
Count) also adopted most of Count One’s description of the overall scheme and
alleged Mr. Smith, using the Ikeme identity, knowingly executed or attempted to
execute a scheme to defraud Security Service by submitting an application for an
automobile loan in the amount of $42,834 and secured by a 2008 Chrysler Aspen.
-16-
pay off the line of credit loan. The telephone numbers Mr. Smith requested were
for a Wells Fargo investigator and a loan fraud manager.
III. Discussion
Through counsel, Mr. Smith now appeals his convictions on three of the
four fraud counts, arguing the district court erred in denying his motion for
acquittal on those three counts. In making this argument, Mr. Smith concedes
someone used the name of Austin Ikeme and fraudulent documents to obtain the
three different loans from Wells Fargo but that the government failed to present
evidence establishing Mr. Smith furnished these documents or identify him as the
person applying for the Wells Fargo loans. However, he now concedes the
government proved he obtained the automobile loan from Security Service using
fraudulent documents but nevertheless seeks resentencing on that count, albeit
without providing any discussion in support of such resentencing. In his pro se
reply brief, Mr. Smith also argues the government failed to present evidence
showing two of the institutions involved in the fraud schemes, Colorado Mortgage
Alliance and Centennial Leasing and Sales, are “FDIC-insured” or “financial
institutions,” as required to prove the elements of the crimes for which he was
convicted. For the reasons provided below, we soundly reject Mr. Smith’s
arguments on appeal.
-17-
We begin with our standard of review and the legal principles involving a
motion to acquit. “We review the sufficiency of the evidence to support a jury’s
verdict and the denial of [a] motion for judgment of acquittal de novo.” United
States v. Vigil, 523 F.3d 1258, 1262 (10th Cir. 2008). In conducting an inquiry
into a district court’s denial of a motion to acquit, “we ask whether, taking the
evidence – both direct and circumstantial, together with the reasonable inferences
to be drawn therefrom – in the light most favorable to the government, a
reasonable jury could find the defendant guilty beyond a reasonable doubt.”
United States v. Serrata,
425 F.3d 886, 895 (10th Cir. 2005). In conducting this
inquiry, “we do not weigh conflicting evidence nor consider the credibility of
witnesses,” which is left to the jury, but “simply determine whether the evidence,
if believed, would establish each element of the crime.” United States v.
Delgado-Uribe,
363 F.3d 1077, 1081 (10th Cir. 2004) (internal quotation marks
omitted). “Under this standard, we will not reverse a conviction ... unless no
rational trier of fact could have reached the disputed verdict.”
Serrata, 425 F.3d
at 895. “The evidence necessary to support a verdict need not conclusively
exclude every other reasonable hypothesis and need not negate all possibilities
except guilt.”
Id. “Instead, the evidence only has to reasonably support the
jury’s finding of guilt beyond a reasonable doubt.”
Id. Because Mr. Smith failed
to present any evidence at trial, our review involves only the evidence presented
by the government during its case-in-chief.
-18-
A. Mortgage Loans
Applying the applicable standard of review and legal principles, it is clear
from the evidence admitted at the trial a reasonable jury could find Mr. Smith
guilty beyond a reasonable doubt of the mortgage loan fraud committed, and,
therefore, the government’s evidence supported the district court’s denial of Mr.
Smith’s motion to acquit. First, as conceded by Mr. Smith on appeal, the
government’s evidence established the fictitious identity of Austin Ikeme was
explicitly intertwined with and used by Mr. Smith, as shown by witness testimony
that he admitted he: (1) interchangeably used his and the Ikeme identities as his
own; (2) used the Ikeme identity when questioned about the first failed closing
and when he attempted to use that identity to set up another checking account in
December 2007; (3) purchased fictitious Colorado and California driver’s licenses
in the name of Austin Ikeme; and (4) used both his name and that of Austin Ikeme
on paperwork intended for a name change. In addition, as discussed hereafter, at
trial three individuals were able to positively identify Mr. Smith as the person
using the Ikeme identity.
The fact other witnesses did not personally meet the person representing
himself as Mr. Ikeme, receive the loan application documents from him in person,
or identify him in court as Mr. Smith and the source of the fraudulent documents,
does not negate his guilt or otherwise fail to establish he did not commit the fraud
-19-
perpetrated. Instead, the direct and circumstantial evidence presented, together
with the reasonable inferences to be drawn therefrom, were sufficient to establish
beyond a reasonable doubt Mr. Smith perpetrated the mortgage loan fraud
committed. This is because, in addition to the evidence establishing Mr. Smith
used the Ikeme identity during the time in question, the government’s evidence
established that in November 2007 someone presenting himself as Austin Ikeme
opened a checking account at Bank of the West and was also added to Mr.
Smith’s Bank of the West checking account for Marrick Entertainment. Around
the same time, a person acting as Mr. Ikeme attempted to obtain loans for the
purchase of the Vistancia Court property, using funds from the personal checking
account of Austin Ikeme for the buyer’s costs and providing a fake Colorado
driver’s license at the closing, which Mr. Smith later admitted to an investigator
he purchased when questioned about its use at the closing. The same investigator
positively identified Mr. Smith at trial as the person making this admission. This
evidence alone is sufficient to tie Mr. Smith to the actions taken by the fictitious
Mr. Ikeme in defrauding Wells Fargo.
In addition, a person identifying himself as Mr. Ikeme also told Mr.
Bliesmer, who helped to facilitate the mortgage loans, that his previous name had
been Alton Smith, when Mr. Bliesmer called and questioned him about the same
fake driver’s license presented at the first closing. At the next closing on the
-20-
property, funds from Mr. Smith’s wife’s account were used for the purpose of
covering Mr. Ikeme’s closing costs, and those funds were deposited into Mrs.
Smith’s account by the same California entity, K & K, which had deposited those
funds into Mr. Ikeme’s personal checking account prior to the failed closing.
Again, these actions show a direct connection between Mr. Ikeme and Mr. Smith
for the purpose of showing Mr. Smith committed the fraudulent scheme
perpetrated on Wells Fargo.
The documents supporting both mortgage loans also included the fake
California driver’s license Mr. Smith admitted purchasing as well as the fake
Social Security number used throughout the fraudulent schemes perpetrated and
which Mr. Smith also admitted using. Furthermore, the income documents
submitted for Mr. Ikeme identified Marrick Entertainment as his employer, which
was the company Mr. Smith incorporated and which listed Austin Ikeme as
holding corporate officer positions. No evidence established anyone but Mr.
Smith used the name Austin Ikeme in association with himself or Marrick
Entertainment, and the same Marrick Entertainment income information used for
the mortgage loans was later used in the purchase of an automobile by Mr. Smith,
where he was positively identified by a witness as the person providing that
information.
-21-
Despite Mr. Smith’s contentions he was not the person who purchased or
provided the documents for purchase of the Vistancia Court residence, a witness
testified he delivered three leased vehicles to Mr. Smith at that residence. He also
identified Mr. Smith in court as the person he met with and knew both as “Alton”
and Austin Ikeme. In addition, someone attempted to set up a personal checking
account at Bank of the West in the name of Austin Ikeme using the Vistancia
Court address. When a detective called the telephone number given for that
person and address and later met with him in person, it was Mr. Smith he met
with and who admitted he was Alton Smith but used the name Austin Ikeme. As
previously mentioned, when another detective attempted to contact Mr. Smith, she
also used that telephone number and talked with someone who acknowledged he
was Alton Smith, but used the name Austin Ikeme, and who knew about the
previous police station meeting and admitted to purchasing the California license.
In addition, Mr. Smith admitted to a Wells Fargo employee his home had been
foreclosed on due to dealings with an unscrupulous builder, which, assumably,
was Mr. Serrano, who also deposited funds into a checking account which was
eventually shown to be associated with Mr. Smith.
Altogether, the direct and circumstantial evidence presented by the
government overwhelmingly showed a connection between Mr. Smith and the
fictitious person Mr. Ikeme, the Vistancia property, and the fraudulent loan
-22-
documents delivered to Wells Fargo on which it relied concerning the purchase of
that property. Based on this evidence and the reasonable inferences drawn
therefrom, a jury could readily find Mr. Smith guilty beyond a reasonable doubt
of perpetrating the fraudulent acts committed. Moreover, the district court clearly
found the government’s witnesses and other evidence credible when it denied the
motion to acquit, as did the jury when it convicted Mr. Smith of the mortgage
loan fraud counts. Accordingly, we conclude the government’s evidence
supported the district court’s denial of Mr. Smith’s motion for acquittal.
B. Personal Line of Credit Loan
Based on much of the same or similar direct and circumstantial evidence, a
jury could also find Mr. Smith guilty beyond a reasonable doubt of perpetrating
the fraud committed concerning the personal line of credit loan from Wells Fargo.
First, in submitting an application for the loan, the person representing himself as
Austin Ikeme used the same false information used in the two mortgage
applications, including the same fake name, date of birth, and Social Security
number, as well as the same or similar false information about his employment
and monthly income from Marrick Entertainment. Much of the documentation
and information used for the personal line of credit was also used by Mr. Smith to
obtain the loan for his automobile using the identity of Mr. Ikeme. In addition,
the personal line of credit taken out by Mr. Ikeme also listed Mr. Smith as the
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other borrower on the loan. Once the loan was approved, someone withdrew
$10,000 from the personal line of credit and deposited it into the Marrick
Entertainment business checking account on which both Mr. Smith and the
fictitious Austin Ikeme were signatories. Later, other withdrawals on the line of
credit were made and moved into the same Marrick Entertainment account
associated with both Mr. Smith and the fictitious Mr. Ikeme. Obviously, Mr.
Smith knew about these deposits, given he was the only actual person who held
that account and was involved with Marrick Entertainment. Moreover, during one
of the transactions, where $3,000 was withdrawn from Mr. Ikeme’s line of credit
and placed in the Marrick Entertainment account, a surveillance photo showed
Mr. Smith making the withdrawal. Based on the evidence presented and the
reasonable inferences drawn therefrom, a jury could readily find Mr. Smith guilty
without a reasonable doubt of perpetrating the fraud committed concerning the
personal line of credit loan. As a result, the government provided sufficient
evidence to support the district court’s denial of Mr. Smith’s motion for acquittal
on the personal line of credit count.
C. Automobile Loan Sentencing
As to the automobile loan, Mr. Smith’s counsel concedes on appeal that the
government provided sufficient evidence to show Mr. Smith was the individual
who perpetrated that fraud but requests, without any argument in support thereof,
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resentencing on that count. We have long held “[a]rguments inadequately briefed
in the opening brief are waived” on appeal. Alder v. Wal-mart Stores, Inc., 144
F.3d 664, 679 (10th Cir. 1998). As a result, we decline to address Mr. Smith’s
sentencing issue on appeal.
D. Pro Se Issue on Banking Institutions
In his pro se reply brief, Mr. Smith concedes the government’s evidence
established Wells Fargo and Security Service were “FDIC-insured” and “financial
institutions” for the purpose of proving the elements of fraud against him.
However, he argues the government failed to submit evidence also establishing
Colorado Mortgage Alliance, which facilitated the mortgage loans, and
Centennial Leasing and Sales, which facilitated the automobile loan, are also
“FDIC-insured” or “financial institutions” for the purpose of convicting him on
either the mortgage or automobile loans. In support, he claims “[t]he mortgage
lender and car broker were ... wholly-owned subsidiaries of the two banks, [and]
the subsidiaries were not “(financial institutions)[”] within the meaning of the
bank fraud statues [sic].”
Even if we consider this argument, which was also not presented in Mr.
Smith’s opening brief, we would deem his contention frivolous. This is because
the indictment against Mr. Smith alleged he attempted to execute or executed a
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scheme to defraud Wells Fargo Bank, “a financial institution whose deposits were
insured by the Federal Deposit Insurance Corporation,” and “Security Service
Federal Credit Union, ... a financial institution whose deposits were insured by
the National Credit Union Share Insurance Fund.” The record on appeal shows
Wells Fargo is, in fact, the financial entity from which Mr. Smith ultimately
obtained the mortgage loans, and Security Service is the financial entity which
ultimately provided the automobile loan to him based on his same or similar
fraudulent representations. It also shows Mr. Smith defaulted on their loans,
making them the victims of his fraudulent schemes. As Mr. Smith concedes, the
government provided evidence establishing Wells Fargo and Security Service
were “FDIC-insured” and “financial institutions” for the purpose of proving the
elements of fraud against him.
While Colorado Mortgage Alliance and Centennial Leasing and Sales may
have initially furnished Mr. Smith the application forms and otherwise facilitated
his loans, neither Colorado Mortgage Alliance nor Centennial Leasing and Sales
ultimately loaned him the money from which a loss occurred due to Mr. Smith’s
fraudulent conduct. Therefore, the government was not required to provide
evidence showing Colorado Mortgage Alliance and Centennial Leasing and Sales
were “FDIC-insured” or “financial institutions.” Accordingly, even if considered
on appeal, Mr. Smith’s pro se argument is frivolous.
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IV. Conclusion
For these reasons, we AFFIRM Mr. Smith’s convictions.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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