PRISCILLA R. OWEN, Circuit Judge:
William Tisdale, Hubert Jones, and Lendell Beacham were convicted by a jury on various counts of conspiracy, wire fraud, and bank fraud. They appeal the sufficiency of the evidence supporting their respective convictions, various aspects of their respective prison sentences, and the district court's method of calculating restitution. We affirm their convictions but vacate their sentences and remand for resentencing.
In 2002, William Tisdale and former Dallas Cowboy Eugene Lockhart formed America's Team Mortgage (ATM) and KLT Realty (KLT). The evidence at trial indicated that Tisdale and Lockhart devised a "pass-through" real estate scheme. ATM/KLT would contract to purchase a property and, before obtaining title to the property, would almost immediately sell it to "straw" purchasers at a higher price. The straw buyers were individuals with good credit, who relied in part on the cachet of Lockhart's celebrity. ATM/KLT told these individuals that they would be buying properties as a once-in-a-lifetime investment opportunity. ATM/KLT provided the mortgage down payments and paid the straw buyers a bonus of up to $20,000 for each investment property he or she purchased. ATM/KLT also represented to the buyers that they were connected with individuals who desired to own property but needed to improve their credit scores. These individuals, ATM/KLT said, would rent the properties from the buyers, and the rental income would cover the monthly mortgage payments. Ostensibly, the renters would thereby improve their credit scores, and in time, be able to obtain a mortgage loan to purchase the properties from the straw buyers. However, ATM/KLT did not obtain renters, so there was no revenue generated for the straw buyers, and those buyers defaulted on the mortgages. The lenders foreclosed on the properties. ATM/KLT, however, profited.
In order to convince lenders to issue mortgages to the straw buyers, Tisdale, Lockhart, and others falsified loan documents, procured inflated property appraisals, and convinced the straw buyers to make misrepresentations in their mortgage applications. When the lender funded a loan to the straw buyer, the purchase price was paid to ATM/KLT, the original property owner was then paid the lower purchase price by ATM/KLT, and ATM/ KLT kept the difference.
In late 2003, Tisdale and Lockhart dissolved their business association, and each formed new companies. Tisdale and Hubert "Trey" Jones, III, organized Atilla Capital and Pinnacle Realty, while Lockhart and Jermaine Frazier created Cowboys Mortgage. Atilla, Pinnacle, and Cowboys Mortgage continued the real estate pass-through scheme utilized by ATM/ KLT.
In order to effectuate the scheme, Tisdale's and Lockhart's companies enlisted the participation of, and sometimes paid, members of the real estate industry to assist in the procurement of the loans. Lendell Beacham was among them. Occasionally, before approving a loan, a lender required the submission of a verification-of-rent form (VOR) to determine whether the borrower qualified. The VOR reflected the borrower's history of making monthly rental payments and therefore was an indication of the ability to make the monthly mortgage payments. Beacham, a licensed realtor and a landlord, provided VORs with falsified information at the request of Tisdale, Frazier, and Lockhart.
In 2009, Tisdale, Jones, and Beacham, along with eight co-defendants, were indicted
The district court also ordered Tisdale, Jones, and Beacham to each pay restitution to the victims of the fraud. To calculate the amount of restitution, the district court reduced the original loan amount by any proceeds obtained through foreclosure. However, Tisdale, Jones, and Beacham objected to the use of the original loan amount for victims that purchased the loans on the secondary market. Without evidence of the mortgages' purchase prices on the secondary market, the district court used the original loan amounts as a "reasonable estimate" of the amount owed in restitution. These appeals followed.
Tisdale, Jones, and Beacham each challenge the sufficiency of the evidence supporting their respective convictions, except Jones does not challenge his separate conviction for bank fraud. Because they made timely motions for judgments of acquittal, we review the sufficiency of the evidence de novo.
Tisdale, Jones, and Beacham were each convicted of conspiracy to commit wire fraud under 18 U.S.C. § 1349. To be convicted of conspiracy under § 1349, the jury must find: (1) two or more persons agreed to commit fraud; (2) the defendant knew the unlawful purpose of the agreement; and (3) the defendant joined the agreement with the intent to further the unlawful purpose.
Tisdale and Jones challenge their convictions by asserting that the government failed to establish that they "agreed" to engage in real estate fraud. However, the government provided ample evidence to the jury to support the convictions.
Jones joined ATM shortly before that company dissolved, and he and Tisdale formed Atilla/Pinnacle. Chambers-Ball testified that Jones was certainly aware of the pass-through scheme in his short time at ATM. Several victims of the conspiracy also testified as to Jones's involvement. Samuel Washington, a straw buyer, testified that Jones was the first to present him with the idea of being an investor. Holliday testified that Jones assisted Tisdale in the initial meeting at ATM about an investment opportunity. After ATM dissolved, Jones remained involved in the Hollidays' transaction at Pinnacle.
The strength of the evidence against Tisdale and Jones shows that a rational jury could have found them guilty of conspiracy. But, Tisdale and Jones alternatively assert that even if there was evidence that they engaged in a conspiracy, it was not the conspiracy alleged in the indictment. Specifically, they argue that the conspiracy proved at trial was specific to Cowboys Realty, Lockhart's company after Tisdale and Lockhart ended their business relationship.
The question of whether the evidence establishes the existence of a single conspiracy or multiple conspiracies is a question of fact for the jury, and "[w]e will affirm the jury's finding that the government proved a single conspiracy `unless the evidence and all reasonable inferences, examined in the light most favorable to the government, would preclude reasonable jurors from finding a single conspiracy beyond a reasonable doubt.'"
First, we have applied the criteria for a common goal broadly, such that the "test may have become a matter of semantics."
Second, in considering the nature of the scheme, a single conspiracy "will be inferred where the activities of one aspect of the scheme are necessary or advantageous to the success of another aspect or to the overall success of the venture."
Third, in considering the overlapping of participants, "there is no requirement that every member must participate in every transaction to find a single conspiracy."
The district court instructed the jury that if it found that a defendant was in a conspiracy but not in the conspiracy alleged in the indictment, then it must acquit. But the jury found a single conspiracy. Construing the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found a single conspiracy beyond a reasonable doubt. We therefore affirm Tisdale's and Jones's conspiracy convictions.
Beacham also challenges the sufficiency of the evidence of his conspiracy conviction, but on separate grounds. Beacham asserts that his conviction cannot stand because it is based primarily on the testimony of Lockhart and Frazier, who Beacham asserts are not credible witnesses. But this court's "role does not extend to ... assessing the credibility of witnesses."
Tisdale and Jones challenge the sufficiency of the evidence supporting their convictions for aiding and abetting bank fraud in violation of 18 U.S.C. § 1344
Suarez was the escrow agent for the sale of 716 Mustang Ridge, and she pled guilty prior to trial. Suarez testified that the sale contracts submitted to her by Pinnacle, which was Tisdale and Jones's company, contained fraudulent information. The documents also contained forgeries of the Hollidays' signatures. Countrywide, the lender, issued a loan to the Hollidays based on these fraudulent documents.
Holliday testified that Tisdale and Jones presented the idea of investing in 716 Mustang Ridge. Tisdale and Jones characterized the transaction as a once-in-a-lifetime investment opportunity. Additionally, the jury could have inferred Tisdale's and Jones's intents to further the fraudulent scheme because the details of the Hollidays' purchase of 716 Mustang Drive followed the pattern of the pass-through scheme.
Reviewing the evidence in the light most favorable to the verdict, a rational jury could have found Tisdale and Jones guilty of aiding and abetting bank fraud beyond a reasonable doubt.
Beacham challenges the sufficiency of the evidence supporting his conviction under 18 U.S.C. § 1343
Beacham argues that the evidence presented at trial did not establish his specific intent to aid and abet wire fraud because he believed the transaction to be legal and he thus acted in good faith. However, the government presented the jury with evidence sufficient to support Beacham's conviction.
In addition to conducting the transaction as a pass-through, Beacham's intent was further established by the several misrepresentations made in the straw buyer's loan application. For example, the evidence indicated Beacham inflated Mazzu's income, falsely stated the Quinlan Drive property would be Mazzu's primary residence, and forged Mazzu's signature.
Considering the evidence in the light most favorable to the verdict, the government presented evidence at trial from which a rational jury could find Beacham guilty of aiding and abetting wire fraud.
The district court sentenced Tisdale, Jones, and Beacham to each serve a term of imprisonment. Tisdale and Beacham, but not Jones, challenge their sentences. "We review sentences for reasonableness under an abuse of discretion standard. First, we determine whether the district court committed any procedural error, such as improperly calculating the Guidelines range. If there is no procedural error or the error is harmless, we may review the substantive reasonableness of the sentence."
The district court sentenced Tisdale to a term of 120 months after calculating Tisdale's advisory sentencing range to be 151 to 188 months under the Guidelines. This calculation included enhancements for (1) the number of victims, (2) the sophistication of the offense, (3) Tisdale's role as the leader/organizer of a crime that involved five or more participants, and (4) committing the offense while on probation. Tisdale objected to each sentence enhancement to the district court. Because the bases for Tisdale's sentence enhancements amounted to factual findings, we review the district court's determinations for clear error.
First, Tisdale asserts that the district court could not enhance his sentence for having ten or more victims pursuant to USSG § 2B1.1(b)(2)(A)(i) because it is unclear who the ten victims were. However, during Tisdale's sentencing hearing, the district court heard evidence establishing that there were at least ten victims of his fraud. While Tisdale asserts that many of the victim banks were "double counted," it
Second, the district court imposed an enhancement under USSG § 2B1.1(b)(10)(C) because Tisdale's fraud used sophisticated means. In United States v. Chon, we affirmed a sophisticated-means enhancement in connection with a money-laundering conviction because the defendant maintained two sets of financial records, skimmed income daily, and mislabeled funds to disguise their source.
Third, the district court increased Tisdale's offense level pursuant to § 3B1.1(a) of the sentencing guidelines, because the court determined Tisdale was the leader or organizer of the mortgage-fraud scheme and the scheme involved five or more participants. Tisdale's Presentence Report (PSR) identified Frazier and Suarez as co-participants, and the district court, during the sentencing hearing, identified Lockhart and Jones as well. Tisdale himself may be counted as a co-participant,
Finally, the district court increased Tisdale's criminal history by two points because the fraud began while Tisdale was on probation. Tisdale was on probation from May 2, 2002 until April 30, 2003. Tisdale and Lockhart formed ATM and KLT in August 2002. These two companies were found to be the initial vehicle for the mortgage-fraud conspiracy. Lockhart testified that Tisdale began teaching him about the pass-through scheme shortly after their businesses were organized. The district court's finding is plausible in light of the record as a whole, and the court did not clearly err by finding Tisdale was on probation when the offense began.
The district court sentenced Beacham to a term of thirty-six months of imprisonment after calculating his advisory guidelines range to be forty-six to fifty-seven months. Beacham challenges his sentence because the district court denied him a minor-role reduction, and he claims
Beacham asserts that his involvement in the conspiracy was limited to the 1206 Quinlan transaction and he was thus entitled to the minor-role reduction. He also asserts that the loss amount the district court assigned to him was incorrect because it included the losses from properties for which Beacham did not provide or authorize false VORs. These losses, Beacham contends, should not be included because the VORs were forged by Frazier and because the lenders did not rely on the VORs. Beacham's assertions are not supported by the record. Both Lockhart and Frazier testified that Beacham prepared fraudulent VORs and authorized Frazier to sign fraudulent VORs in Beacham's absences. One VOR was incomplete, and Beacham contends that no one could have relied upon it. But this VOR had information that purported to represent rental history, and there was no evidence that the VOR was disregarded or ignored by the lender. Testimony at trial established that, as a general matter, VORs could play a pivotal part in a lender's decision to issue a loan. The district court did not clearly err by denying Beacham the minor-role reduction or including properties other than 1206 Quinlan Drive in the loss amount attributable to Beacham.
The district court ordered Tisdale, Jones, and Beacham to each pay an amount in restitution pursuant to the Mandatory Victims Restitution Act (MVRA).
We review "the legality of a restitution order de novo and the amount of the restitution order for an abuse of discretion."
The defendants contend that the loss amount for a victim who purchased a mortgage on the secondary market cannot be based on the amount of the original loan. We recently addressed this identical issue in an appeal by Tisdale, Jones, and Beacham's co-defendant, Jermaine Frazier, who pleaded guilty prior to trial.
In United States v. Chaika, the Eight Circuit commented that the loss to a victim who is not the initial lender "will turn on its purchase price in the secondary market."
The government attempts to distinguish Yeung and Chaika by noting that in those cases, unlike here, the secondary-market purchase prices were available. The unavailability of the information in this case, the government argues, forced the district court to choose between awarding no restitution and awarding the victims restitution based on the original loan amounts. However, our court has held that "[t]he MVRA limits restitution to the actual loss directly and proximately caused by the defendant's offense of conviction.... [E]xcessive restitution awards cannot be excused by harmless error; every dollar must be supported by record evidence."
The question arises as to whether we may vacate and remand only the restitution aspects of the sentences. "Our court has in some cases vacated the entire sentence when an order of restitution was vacated, but in other cases, our court has vacated only the restitution order and left in place a term of imprisonment that was also included in the sentence."
For the foregoing reasons, we AFFIRM the convictions, VACATE the sentences, and REMAND to the district court for resentencing consistent with this opinion.