NOT PRECEDENTIAL



         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                        __________

                       Nos. 15-1505
                       __________

             UNITED STATES OF AMERICA

                             v.

               CYNTHIA EVETTE BROWN,
                            Appellant
                     __________

                       Nos. 15-1531
                       __________

             UNITED STATES OF AMERICA

                             v.

             WALTER ALSTON BROWN, JR.,
                            Appellant

                        __________

        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
    (Crim. Nos. 2-13-cr-00176-004 and 2-13-cr-00176-005)
             District Judge: Hon. Berle M. Schiller

         Submitted Under Third Circuit LAR 34.1(a)
                      July 14, 2016

BEFORE: FUENTES,** SHWARTZ, and BARRY, Circuit Judges

              (Opinion Filed: August 16, 2016)
                                        __________

                                         OPINION*
                                        __________
FUENTES, Circuit Judge

         Cynthia and Walter Brown appeal their criminal sentences stemming from their

involvement in a mortgage fraud scheme. For the reasons that follow, we will affirm in

part and vacate in part.

    I.   BACKGROUND

         Walter and Cynthia Brown were heavily involved in a group that used a

multifaceted scheme to lie to banks, obtain mortgage loans as a result of their

misrepresentations, and squander the loan money.

         The mortgage fraud scheme was complex and elaborate, and we address only the

salient details. Between May 2004 and December 2009, Walter and Cynthia participated

in a conspiracy to obtain fraudulent mortgage loans using straw borrowers and false

personal information. The scheme also included co-conspirators who were mortgage

brokers, home developers, settlement agents, appraisers, and accountants. The members

of the conspiracy would receive loans that far exceeded the price of the properties, the

majority of which were distressed and located in West Philadelphia. The co-conspirators

would then either purchase the properties and take a profit based on the difference




*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
** Honorable Julio M. Fuentes assumed Senior Status on July 18, 2016.




                                             2
between the loan and the property value or simply pocket the money from the loan

altogether.

       As the conspiracy grew, the co-conspirators formed their own title agency called

KREW Settlement Services (an acronym for the first names of the company’s owners).

This company was involved in many of the conspiracy’s fraudulent mortgage loans. In

all, the scheme caused lenders to sustain actual losses of more than $7 million.

       Walter and Cynthia each played distinct roles based upon their experience and

knowledge in the mortgage industry. Walter was a mortgage broker who was based in

Virginia, and a co-owner of KREW. He used his position as a mortgage broker to

process fraudulent loans for properties, which were identified by members of the

conspiracy and purchased using straw borrowers.         Walter’s role in the scheme was

heavily based on preparing the mortgage applications and providing the necessary

income statements and appraisals, all of which were false. As payment for his role in the

conspiracy, he received cash from his cousin and co-conspirator, which he failed to report

on his tax returns.

       Cynthia also played an essential role in this conspiracy. She was employed as an

administrative assistant in the Human Resources Department at Unicco Service

Company. By no coincidence, the place of employment listed on many of the straw

buyers’ applications was Unicco. On many occasions the banks would call Cynthia to

confirm that a straw buyer did, in fact, work at Unicco and that the reports regarding their

income were accurate. In response to their questions, Cynthia would confirm the false



                                             3
information on the loan applications. These false confirmations were essential for the co-

conspirators in receiving fraudulent loans.

          Following an investigation by the FBI into the scheme, on April 11, 2013, a

federal grand jury in Philadelphia returned a 34-count indictment charging the co-

conspirators variously with conspiracy to commit loan and wire fraud, in violation of 18

U.S.C. § 371; false statements in connection with an FHA loan, in violation of 18 U.S.C.

§ 1010; loan fraud, in violation of 18 U.S.C. § 1014; aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1); wire fraud, in violation of 18 U.S.C. §§ 1343,

1349; filing false tax returns, in violation of 26 U.S.C. § 7206(1); tax evasion, in violation

of 26 U.S.C. § 7201; and aiding and abetting certain of these crimes, in violation of 18

U.S.C. § 2. In total, Walter faced 10 criminal charges and Cynthia faced 8.

          Following a jury trial, Defendants were convicted of all of the counts with which

they were charged and sentenced to 180 months’ imprisonment. In addition, Cynthia was

ordered to pay $7,488,608 in restitution, while Walter was ordered to pay $7,213,123 in

restitution and an additional $31,903 to the IRS. The court also imposed a “money

judgment” forfeiture against Cynthia in the amount of $7,418,303, representing the

proceeds of the offenses of conviction.

          This appeal followed.

    II.   DISCUSSION1



1
 The District Court had jurisdiction over the case pursuant to 18 U.S.C. § 3231. We
have jurisdiction over this matter under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

                                              4
       The parties present several arguments, which we will address in turn. The 2013

indictment in Walter’s case charged the submission of fraudulent loan applications to

FDIC-insured lenders under 18 U.S.C. § 1014. The version of § 1014 in effect in March

2008 prohibited knowingly making “any false statement or report, or willfully

overvalu[ing] any land, property or security, for the purpose of influencing in any way

the action of . . . any institution the accounts of which are insured by the Federal Deposit

Insurance Corporation . . . .”2 The statute did not cover false statements made to non-

FDIC-insured mortgage lending businesses. In 2009, the statute was amended to include

non-FDIC-insured mortgage lending businesses.3

       Walter first claims his conviction under this statute constitutes an ex post facto

violation because the fraudulent acts for which he was convicted ended in 2008 and

involved both FDIC and non-FIDC-insured banks. Walter never raised this argument at

trial, so we review for plain error.4

       We reject Walter’s argument. The 2008 version of the statute explicitly prohibited

knowingly making false statements to institutions insured by the FDIC. The institutions

Walter was charged with defrauding were all insured by the FDIC. Thus, Walter was

properly charged and convicted under either version of the statute.5



2
  18 U.S.C. § 1014 (2008 ed.).
3
  Pub. L. 111-21 § 2(c), 123 Stat. 1617.
4
  United States v. Boone, 

, 174 n.6 (3d Cir. 2002).
5
  Walter further claims that the 2008 version of the statute was vague and ambiguous.
This claim is equally baseless. There was nothing vague about the fact that it was illegal
to make false statements to FDIC-insured institutions.

                                             5
         Next, Walter claims that the evidence did not sufficiently prove he knowingly

participated in the loan fraud scheme. We also review sufficiency of evidence claims not

raised at trial for plain error.6 Here, Walter argues that his contribution was “ministerial”

in nature and that he was only inputting and forwarding data to banks without being

aware of the consequences of the scheme. Again, we find Walter’s argument to be

unavailing. The evidence at trial firmly established Walters’ central role in the scheme.

Numerous witnesses testified as to Walter’s knowing participation in the fraud. He was a

part owner of the shell company used to facilitate crime. He even submitted his own

resume as part of the fraudulent loan application packages. In short, the evidence proving

his guilt beyond a reasonable doubt was more than sufficient.

         In addition, both Defendants claim that the indictment was constructively

amended as a result of certain statements made during the government’s closing

arguments and the District Court’s jury instructions. Specifically, they claim that the jury

was not instructed or told which false statements related to which counts. Among other

things, the District Court allowed the government to provide the jury with a chart

containing various alleged false statements made in connection with loan applications for

each property. However, the statements on the chart were not in every case described in

the indictment. And, the court did not give the jury the original indictment for their

deliberation when they asked for it. Therefore, Defendants claim that the bases on which




6
    United States v. Gordon, 

, 547 (3d Cir. 2002).

                                              6
the jury could have convicted them were improperly broadened beyond the allegations

asserted in the indictment and that their convictions and sentences should be vacated.

       If the charges in the indictment were constructively amended, there is a

presumption that the constructive amendment violated a substantial right of the

defendants.7 However, the government can rebut this presumption by showing that the

constructive amendment did not affect a defendant’s substantial rights.8

       We have reviewed the record thoroughly and find that the government’s chart did

not improperly broaden the basis upon which the jury could have found Walter or

Cynthia guilty of the mortgage fraud counts of which they were convicted, nor did the

government’s closing argument or the jury instructions.         We believe that, here, the

evidence and arguments at trial “concerned the same elaborate scheme to defraud”

described in the indictment.9 This suggests to us that any discrepancy between the

challenged counts and what the jury saw and heard at trial represented a variance rather

than a constructive amendment.10 We believe, further, that any such variance did not

prejudice the defense.11 Accordingly, we will affirm the counts of conviction.12


7
   United States v. Syme, 

, 154-55 (3d Cir. 2002).
8
   

United States v. Dupre, 

, 140-41 (2d Cir. 2006).
10
    

United States v. Daraio, 

, 262 (3d Cir. 2006) (“Unlike a constructive
amendment, a variance can result in a reversible error only if it is likely to have surprised
or otherwise has prejudiced the defense.”).
12
    We acknowledge that the government conceded error with respect to Cynthia’s Count 5
conviction. However, we are not bound to accept the government’s concession and
decline to do so here. See United States v. Ginyard, 

, 649 (D.C. Cir. 2006)
(“Although the United States has conceded error, the court is not bound by that

                                              7
       The government concedes that it included $69,776 in losses for an entity that was

not covered under the criminal restitution statute when it calculated the restitution order

against Cynthia. After careful consideration, we agree that this amount was improperly

included in the total restitution calculation and should therefore be vacated. We therefore

find that the $69,776 should be deducted from Cynthia’s overall restitution penalty. We

decline to remand to the District Court for any recalculation or resentencing.13

III.   CONCLUSION

       For the foregoing reasons, we will vacate the restitution order issued against

Cynthia in the amount of $69,776 and otherwise affirm the sentences imposed by the

District Court.




concession on a question of law.”); United States v. Miller, 

, 832 (9th Cir.
1987) (“Even if a concession is made by the government, we are not bound by the
government’s erroneous view of the law.”) (citation and internal quotation marks
omitted).
13
   We have carefully reviewed all of Defendants’ remaining arguments, including those
regarding the applicable statute of limitations, prejudicial spillover, and the alleged
multiplicitous indictment. In short, we find them to be without merit.

                                             8