United States v. Baum

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 10, 2009
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-6257
BRANDON L. BAUM,

Defendant - Appellant.

ORDER

Before HARTZ, McWILLIAMS, and McCONNELL, Circuit Judges.

This matter is before us on the Appellant’s Petition for Panel Rehearing and

Rehearing En Banc. The panel GRANTS the petition for the limited purpose of

revising the final paragraph of the Opinion beginning on page 15. The Opinion

filed on December 22, 2008, is vacated and the attached revised Opinion is

substituted in its place.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk
 FILED
United States Court of Appeals
Tenth Circuit

February 10, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-6257
BRANDON L. BAUM,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:06-CR-00264-HE-1)

Thomas D. McCormick, Oklahoma City, Oklahoma; Jill M. Wichlens, Assistant
Federal Public Defender, (Raymond P. Moore, Federal Public Defender, with her
on the brief), Denver, Colorado, for Appellant.

Susan Dickerson Cox, Assistant United States Attorney, (John C. Richter, United
States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Appellee.

Before HARTZ, McWILLIAMS, and McCONNELL, Circuit Judges.

HARTZ, Circuit Judge.

Brandon L. Baum was convicted on six counts of wire fraud, see 18 U.S.C.

§ 1343, and seven counts of money laundering, see id. § 1957. These convictions

arose from Mr. Baum’s orchestration of a scheme to defraud mortgage lenders by
arranging for borrowers to provide false information to qualify for loans to

purchase homes at artificially inflated prices. On appeal he argues (1) that the

evidence at trial was insufficient to establish his fraud; and (2) that the district

court miscalculated his total offense level under the United States Sentencing

Guidelines (USSG) by using the amount by which the home prices were inflated

as the measure of his intended loss to the lenders. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

I. BACKGROUND

A. The Offenses

Mr. Baum and six codefendants were charged in a 14-count indictment in

the United States District Court for the Western District of Oklahoma. Thirteen

counts alleged criminal conduct by Mr. Baum in representing the buyers of six

homes in the Oak Tree subdivision of Edmond, Oklahoma, between 2003 and

2005.

For each of the six purchases Mr. Baum acted as the real-estate agent for

the buyer, who was seeking a home loan in the subprime market because of weak

credit. The buyer generally could not afford the down payment required by the

lender (from 5% to 15% of the cost of the home), so the buyer borrowed that

money from Mr. Baum and his associates. Mr. Baum’s client agreed to buy the

home at the seller’s listed price, which often had been reduced over time as the

home failed to sell; but Mr. Baum and his client obtained the consent of the seller

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and the seller’s agent to list an inflated price on the purchase contract. The price

inflation did not benefit the seller because Mr. Baum prepared an addendum to

the purchase contract requiring the seller to pay the excess over the listed price to

a named company for remodeling or repairing the home. Apparently

unbeknownst to the seller, the company was merely a bank account used to funnel

the money to provide cash to the purchaser and to pay Mr. Baum and his

associates for their services and for advancing the down payment.

The mortgage lender, of course, was not informed of the true nature of the

transaction. The purchase-contract addendum regarding the “remodeling” or

“repair” payment was not disclosed, so the lender would be led to believe that the

purchase price on the contract (which apparently was supported by an appraisal)

was solely for the home itself. Also, the loan application falsely represented that

the buyer had not borrowed money to make the down payment, and usually

contained false information regarding the purchaser’s income and assets.

B. Sentencing

Mr. Baum’s base offense level under the Sentencing Guidelines was 7. See

USSG § 2B1.1(a). The district court added 4 levels for his role as a leader of the

scheme, see id. § 3B1.1(a), and an additional 2 levels for obstruction of justice,

based on his false testimony at trial and intimidation of witnesses, see id. § 3C1.1.

The court also added 16 levels because the loss intended by Mr. Baum was more

than $1,000,000. See id. § 2B1.1(b)(1)(I). In computing the intended loss, the

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court took into account not only the six mortgage loans underlying Mr. Baum’s

convictions, but also 15 uncharged loans that involved similar misconduct. See

id. § 1B1.3(a)(2) (in setting offense level, court should consider all acts that were

part of fraudulent scheme). The court then arrived at an intended loss of

$1,393,243.10 by adding the amounts by which the inflated price of each home

(the price stated in the purchase agreement) exceeded the actual sales price.

With a total offense level of 29 and a criminal-history category of 1,

Mr. Baum’s guidelines sentencing range was 87 to 108 months. See id. ch. 5,

pt. A. The district court sentenced Mr. Baum to 87 months’ imprisonment.

II. DISCUSSION

A. Sufficiency of the Evidence

We review the evidence de novo to determine whether a reasonable jury,

viewing the evidence in the light most favorable to the prosecution, could find

Mr. Baum guilty beyond a reasonable doubt. See United States v. Gallant, 537

F.3d 1202, 1222 (10th Cir. 2008).

“To convict a defendant of wire fraud under 18 U.S.C. § 1343, the

government must show (1) a scheme or artifice to defraud or obtain property by

means of false or fraudulent pretenses, representations, or promises, (2) an intent

to defraud, and (3) . . . use of interstate wire . . . communications to execute the

scheme.” Id. at 1228 (internal quotation marks omitted). The wire transfer for

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each wire-fraud count was the transfer of money from the mortgage lender to the

title company handling the closing.

To prove money laundering under 18 U.S.C. § 1957, “[t]he government

must prove five elements: that the defendant (1) engaged or attempted to engage,

(2) in a monetary transaction, (3) in criminally derived property, (4) knowing that

the property is derived from unlawful activity, and (5) that the property is, in fact,

derived from specified unlawful activity.” United States v. Lake, 472 F.3d 1247,

1260 (10th Cir. 2007) (internal quotation marks omitted). Specified unlawful

activity is defined to include wire fraud. See id. (noting that “[s]pecified unlawful

activity” is “any of a number of offenses listed in 18 U.S.C. § 1956(c)(7), . . .

includ[ing] wire fraud” (internal quotation marks omitted)). And criminally

derived property includes property (such as money) acquired through wire fraud.

See id. The “monetary transactions” in this case were the transfers of loan

proceeds from the make-believe contractors to Mr. Baum and others.

Mr. Baum’s sole challenge to his money-laundering convictions is that the

government did not prove wire fraud, so there was no unlawful or criminally

derived property. Because this challenge therefore depends on the merits of his

challenge to the wire-fraud convictions, it need not be discussed separately.

Mr. Baum challenges his wire-fraud convictions on the grounds that (1) all

the financial arrangements in the six transactions were fully disclosed; (2) the

inflated home values were based on subjective appraisals and therefore cannot

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form the basis of a wire-fraud conviction; and (3) the failure to have remodeling

or repair work done on the homes, despite the requirements of the purchase-

contract addenda, amounts merely to a breach of contract, not a crime.

We question whether we have a duty to consider Mr. Baum’s challenge to

the sufficiency of the evidence of guilt. Although the trial transcript fills 11

volumes, his opening brief, which is the only one of his briefs on appeal to raise

the issue, devotes only five pages to a statement of the case, statement of the

facts, summary of the argument, and argument. The argument contains no

reference to the trial record, and, aside from his citation to his own testimony, the

only reference to the record in the statement of facts is a string cite to 15

excerpts, consisting almost entirely of his cross-examination of various

government witnesses, without any description of what was elicited in each

excerpt. No attempt was made to explain why the incriminating evidence (which

one would expect to find in the direct testimony of the government witnesses)

would not suffice to establish guilt. Such a presentation requires the court “to

scan volumes aimlessly” in a search for what was established at trial. Aquila, Inc.

v. C.W. Mining, 545 F.3d 1258, 1268 (10th Cir. 2008). It may well be “within our

power as a court to refuse to consider an argument in these circumstances.” Id.

In any event, Mr. Baum’s arguments fail on their merits. With respect to

his first two contentions, there was extensive evidence that the mortgage lenders

were not fully informed about the financial transactions regarding the home

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purchases. And even if the appraisals were totally legitimate, the phony sales

prices, undisclosed addenda, and false information about the borrowers’ finances

would easily support the verdicts.

Finally, Mr. Baum’s third argument—that failure to have the remodeling or

repair work done was simply a breach of contract, not a crime—misses the point.

Mr. Baum’s guilt did not turn on whether such work occurred. The fraud (or at

least the aspect of the fraud to which the addenda were relevant) was that the

mortgage lender was led to believe that it was lending money to purchase a home

for $X, not to purchase a home for $X-Y and then undertake $Y worth of

remodeling or repairs. As an officer of one lender testified, she would question

the accuracy of an appraisal if it exceeded the actual sales price. And

representatives of each lender testified that the loans would not have been

approved had they known of the addenda.

Accordingly, we hold that the evidence at trial was sufficient to establish

Mr. Baum’s fraud, and therefore we reject his challenges to his fraud and money-

laundering convictions.

B. Sentencing

Under the Sentencing Guideline for various property offenses, including

theft, embezzlement, and fraud, the offense level is increased based on the loss.

See USSG § 2B1.1(b). In general, “loss is the greater of actual loss or intended

loss.” Id. § 2B1.1 cmt. n.3(A). The probation office’s presentence report (PSR)

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calculated what it termed the “Intended loss/Actual loss” in this case as

$1,393,243.10. R. Vol. 14 at 24. Because this loss was between $1,000,000 and

$2,500,000, the offense level increased by 16. See USSG § 2B1.1(b)(1)(I). To

reach the total of approximately $1.4 million, the PSR considered the six loan

transactions for which Mr. Baum was convicted and an additional 15 loan

transactions which it considered to be part of his overall scheme. See id.

§ 1B1.3(a)(2) (specific offense characteristics—such as total loss from fraud—are

determined based on all conduct that was part of same scheme). (Mr. Baum has

not challenged the district court’s consideration of all 21 transactions.) For each

loan the price of the home shown on the purchase agreement was inflated above

the actual agreed-upon sale price by what we will call “the Excess Amount”; the

purchase agreements included addenda (not disclosed to the lenders) requiring

that the Excess Amount be paid to a company ostensibly for remodeling or

repairing the home, rather than to the seller. The total of the 21 Excess Amounts

was about $1.4 million.

Mr. Baum objected to the PSR on the ground that no “loss, intended or

actual, occurred in this case.” R. Vol. 14 at 39. At the sentencing hearing, his

sole explanation for this assertion was that the PSR had not considered “the resale

value of the homes themselves.” Id. Vol. 2 at 3. The district court overruled the

objection and ruled that the intended loss was the amount set forth in the PSR.

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 On appeal Mr. Baum’s contentions are more specific. He now argues that

he intended no loss and that the actual loss to the mortgage lenders—which arose

when the borrower defaulted and the foreclosure sale netted less than the amount

owed on the mortgage loan—was a little more than $500,000, which would call

for an offense-level increase of 14, rather than 16. See USSG § 2B1.1(b)(1)(H).

To support his claim that he intended no loss, he observes that his gains from the

loan scheme depended on merely getting the loans, not having purchasers default

on them. If anything, he argues, his interest was in having the purchasers not

default, because then his scheme could remain undetected for longer.

The merit of Mr. Baum’s argument turns on what it means to intend a loss.

The Sentencing Guidelines define intended loss as “(I) . . . the pecuniary harm

that was intended to result from the offense; and (II) includes intended pecuniary

harm that would have been impossible or unlikely to occur (e.g., as in a

government sting operation, or an insurance fraud in which the claim exceeded

the insured value.)” USSG § 2B1.1 cmt. n.3(A)(ii). This definition, however,

assumes that we already know what the word intended means.

Mr. Baum assumes that intent must include an element of purpose or desire.

If he were correct, then he would have a good argument that he intended no loss,

because the evidence does not suggest that he desired anyone to lose money or

even that his purpose was that the lenders lose money. But he is not correct. As

the Supreme Court informed us in United States v. United States Gypsum Co., 438

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U.S. 422, 445 (1978), “The element of intent in the criminal law has traditionally

been viewed as a bifurcated concept embracing either the specific requirement of

purpose or the more general one of knowledge or awareness.” In other words, a

defendant may be said to have intended a loss if he had the requisite knowledge

or awareness, even if he had no desire for the loss.

The quality of the knowledge required, however, may be debated. As we

shall see, there is some authority that a defendant is said to intend a consequence

if he knows that the consequence is probable. Other authority, in contrast,

suggests that intent requires knowledge that the consequence is practically

certain. This difference could be decisive for Mr. Baum. One could reasonably

contend that the evidence does not support a finding that a loss exceeding $1

million was practically certain. If, however, knowledge of probable

consequences suffices to establish intent, then the district court was on firm

ground in finding that Mr. Baum’s intended loss exceeded $1 million. Because

the trial evidence indicated that Mr. Baum’s clients, the home purchasers, were

seeking subprime loans, and often needed to falsify financial information and

borrow the down payment even to qualify for such loans, the prospects for loan

default were considerable. In that event the lender’s losses would depend on what

could be obtained by foreclosing on the homes. Although the loss on each

foreclosure would not necessarily equal the Excess Amount, that figure would be

a reasonable measure of the probable loss. See USSG § 2B1.1 n.3(C) (“The court

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need only make a reasonable estimate of the loss.”) To begin with, the home’s

market value was unlikely to exceed the true sales price, particularly because that

price had often been set after attempts to sell at a higher price had failed. So the

inflated value—the true sales price plus the Excess Amount—was likely to exceed

the market price by at least the Excess Amount. When one then considers (1) that

a forced sale, such as a foreclosure sale, generally does not recover even the

market value, and (2) that the costs of foreclosure can be considerable, one could

conclude that the lender would ordinarily be fortunate if its loss in the transaction

(after lending 85% to 95% of the inflated price) were only the Excess Amount.

True, there may be variation from home to home; but the average loss on the 21

homes could be expected to be at least the Excess Amount, making a total loss of

$1.4 million to be a conservative figure, and rendering eminently reasonable the

application of USSG § 2B1.1(b)(1)(I), which requires only an intended loss above

$1 million.

Thus, we examine what quality of knowledge is required for intent. Some

authority suggests that it is enough that the defendant know that the loss is

probable. In the antitrust case before it, the United States Gypsum Court

“conclude[d] that action undertaken with knowledge of its probable consequences

and having the requisite anticompetitive effects can be a sufficient predicate for a

finding of criminal liability under the antitrust laws.” 438 U.S. at 444. More

directly in point, the First Circuit, when interpreting USSG § 2B1.1 in a context

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very similar to the one before us (fraudulently obtained loans for homes with

inflated purchase prices), equated “intended loss” with “expected” loss. United

States v. McCoy, 508 F.3d 74, 79 (1st Cir. 2007) (“The guideline makes clear that

intended loss—‘expected’ would be a better term—is to be used where it is higher

than actual loss, that expectation being a measure for the defendant’s

culpability.”)

We note that there are also dicta in this circuit suggesting that intent

requires only knowledge that a consequence is probable. Twice we have said,

“To prove intended loss, the government must show that the defendant

realistically intended a particular loss, or that a loss in that amount was probable.”

United States v. Swanson, 360 F.3d 1155, 1168 (10th Cir. 2004) (internal

quotation marks omitted); United States v. Schild, 269 F.3d 1198, 1200 (10th Cir.

2001) (internal quotation marks omitted). But in both cases there was clear

evidence that “the defendant realistically intended” the loss, and the issue of

interest in this case—whether the defendant must know that the loss is practically

certain rather than merely probable—was not presented to the court. More

importantly, the dicta are based on precedent that is now of questionable

authority. The above-quoted language traces back to our statement in United

States v. Smith, 951 F.2d 1164, 1168 (10th Cir. 1991), that “[t]o meet the

requirements of the Guideline . . . the record must support by a preponderance of

the evidence the conclusion that [the defendant] realistically intended a $440,896

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loss, or that a loss in that amount was probable.” The word probable was taken

from application note 7 to USSG § 2F1.1 (an earlier guideline addressing

intended loss in fraud cases, later consolidated into the guideline we are

considering, USSG § 2B1.1), which said: “In keeping with the Commission’s

policy on attempts, if a probable or intended loss that the defendant was

attempting to inflict can be determined, that figure would be used if it was larger

than the actual loss” (quoted in Smith, 951 F.2d at 1166). But effective

November 1, 1991, the word probable was deleted from the application note. See

USSG app. C, amend. 393. (On the other hand, we may have suggested that

knowledge of probable consequences suffices for intent when we have repeatedly

said that a jury can infer that the defendant intended the natural and probable

consequences of his acts. See, e.g., United States v. Pettigrew, 468 F.3d 626, 639

(10th Cir. 2006).)

Opposed to the above authority is substantial authority that mere

knowledge of a probable result does not suffice for intent. The Supreme Court in

United States Gypsum, although apparently concluding that “knowledge of . . .

probable consequences,” 438 U.S. at 444, satisfied the intent requirement in that

case, proceeded to quote a leading treatise for the proposition that “a person . . .

intends a result of his act . . . when he knows that the result is practically certain

to follow from his conduct, whatever his desire may be as to that result.” Id. at

445 (quoting W. LaFave & A. Scott, Criminal Law 196 (1972) (emphasis added));

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see Wayne R. LaFave, 1 Substantive Criminal Law § 5.2(a), at 341 (2d ed. 2003).

Intent instructions using the “practically certain” language certainly appear in this

circuit. See, e.g., United States v. Platte, 401 F.3d 1176, 1181 (10th Cir. 2005).

And the guidelines definition of actual loss as “the reasonably foreseeable

pecuniary harm that resulted from the offense,” USSG § 2B1.1 cmt. n.3(A)(i),

might suggest that reasonable foreseeability could not also be the test for intended

loss. (We observe, however, that in the context of the quoted comment,

“reasonably foreseeable” is not meant to expand what is included in “actual loss,”

but is clearly meant to exclude losses that could not have been so foreseen, even

if caused by the defendant’s conduct. See USSG supp. to app. C, amend. 617 at

182.)

Thus, it is an unsettled question whether intended loss requires knowledge

that the loss is a virtual certainty or only knowledge that the loss is probable. The

answer to the question could be dispositive in this case because one could

reasonably contend that the evidence does not support a finding that a loss

exceeding $1 million was a virtual certainty. But we need not provide an answer

here. This point was not raised before the district court. Mr. Baum did not even

address the possibility that intended loss could be established by a showing of

knowledge or awareness of, as opposed to desire for, future loss. He certainly did

not raise below the only argument on which he might prevail on appeal—that

intended loss requires knowledge that the loss is virtually certain to occur rather

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than that it is merely a probable consequence. Consequently, the district court

had no reason to address what definition of intended loss it was using and had no

opportunity to consider, and perhaps apply, a different standard.

In this circumstance we should not reverse the district court’s intended-loss

finding unless the court’s possible error in applying USSG §2B1.1 satisfies the

requirements of plain-error review. See United States v. Hasan, 526 F.3d 653,

660–61 (10th Cir. 2008) (“[W]hen a party fails to preserve an issue before the

district court, our review is . . . limited to ascertaining whether the error . . .

qualifies as plain error.”). The error alleged here does not satisfy those

requirements. One requirement for relief under plain-error review is, not

surprisingly, that the error be “plain.” See United States v. Smith, 413 F.3d 1253,

1274 (10th Cir. 2005) (setting forth the elements of plain-error review). An error

in a ruling is “plain” only if the ruling violates “well-settled law.” Id. (internal

quotation marks omitted). When no authority from the Supreme Court or this

circuit would compel a determination that there was error and there is contrary

authority in other circuits, the error can rarely be plain. See id. We have

recognized plain error despite contrary authority in other circuits only in the

context of an unambiguous statutory command. See United States v. Ahidley, 486

F.3d 1184, 1193 & n.7 (10th Cir. 2007); United States v. Overholt, 307 F.3d

1231, 1256 (10th Cir. 2002) (“Although it may appear obtuse to hold that it is

plain error to delegate the task of setting a payment schedule when there is

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contrary authority in other circuits, in each of those decisions either the opinion

predated the AEDPA amendments to § 3664 or the present provisions of § 3664

were not brought to the attention of the court.”) Here, however, the guidelines do

not define intent, opinions by the Supreme Court and this court provide

substantial support for a view contrary to Mr. Baum’s, and the sole appellate

decision in point is that of the First Circuit, which said that a loss is intended if it

is expected. See McCoy, 508 F.3d at 79. Accordingly, Ahidley and Overholt are

inapposite; we must reject Mr. Baum’s challenge to his sentence.

III. CONCLUSION

We AFFIRM Mr. Baum’s convictions and sentence.

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