United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2007 Decided May 6, 2008
No. 05-3131
UNITED STATES OF AMERICA,
APPELLEE
v.
WILBERT S. BRODIE A/K/A KHARII WILSTON
ANTHONY BRODIE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00190-01)
A. J. Kramer, appointed by the court, argued the cause as
amicus curiae in support of the appellant.
Wilbert S. Brodie was on brief, pro se.
John P. Mannarino, Assistant United States Attorney,
argued the cause for the appellee. Jeffrey A. Taylor, United
States Attorney, and Roy W. McLeese III and Thomas J. Tourish,
Jr., Assistant United States Attorneys, were on brief. Ann K.
Simon, Assistant United States Attorney, entered an appearance.
Before: HENDERSON, GARLAND and BROWN, Circuit Judges.
2
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: A jury found
appellant Wilbert Brodie (Brodie) guilty of conspiracy to make
false statements to financial institutions to obtain mortgage
loans in violation of 18 U.S.C. § 371 and wire fraud in violation
of 18 U.S.C. § 1343. Brodie was sentenced to 57 months’
imprisonment and ordered to pay $355,449.70 in restitution.
Brodie appeals his conviction on ten grounds in five pro se
filings. Additionally, the Federal Public Defender (Amicus)
filed an amicus brief claiming that the district court committed
three errors: (1) sustaining an objection to defense counsel’s
closing argument; (2) denying Brodie’s new trial motion based
on an alleged Brady violation; and (3) applying a four-point
“leader or organizer” enhancement to Brodie’s offense level
under the United States Sentencing Guidelines (Guidelines or
USSG). Amicus also asserts that Brodie’s trial counsel provided
ineffective assistance of counsel because he failed to request a
downward departure based on Brodie’s immigration status
pursuant to United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994).
For the reasons set forth below, we affirm Brodie’s conviction
and sentence.
I.
Pursuant to a second superseding grand jury indictment filed
on August 12, 2004, Brodie was charged with four counts
relating to a mortgage flipping scheme: one count of conspiracy
to make false statements to financial institutions to obtain
mortgage loans and to use wire transmissions in furtherance of
a scheme to defraud and obtain money and property under false
pretenses in violation of 18 U.S.C. § 371 and three counts of
wire fraud in violation of 18 U.S.C. § 1343. The indictment also
sought the forfeiture of $239,970.56 pursuant to 18 U.S.C.
§ 982(a)(2)(A), which requires “a person convicted of a
violation of, or a conspiracy to violate [18 U.S.C. § 1343],
affecting a financial institution . . . [to] forfeit to the United
3
States any property constituting, or derived from, proceeds the
person obtained directly or indirectly, as the result of such
violation.” 18 U.S.C. § 982(a)(2)(A).1 Two other participants
in the scheme, Olurotimi Padonu (Padonu) and Sarafa Kareem
(Kareem), were charged with the same four counts as Brodie as
well as an additional conspiracy count based on a separate fraud.
A. Overview of the Scheme
Brodie was the president, CEO and only employee of a shell
company named Inter Communication Network (ICN). The
charged scheme involved ICN’s purchase of dilapidated real
estate properties—the second superseding indictment focused on
eight properties purchased between December 1995 and June
1997—and the subsequent resale of the properties to Brodie at
inflated values.2 Brodie simultaneously applied for a loan based
on the inflated resale price, using a portion of the loan to cover
ICN’s initial purchase of the property at the lower value and
keeping the remaining funds for himself. For example, on July
1
Brodie waived his right to a jury trial on the forfeiture count.
2
The eight properties were 4026 36th Street (36th Street property),
106 15th Street (15th Street property), 3965 Martin Luther King Jr.
Ave. (MLK property), 312 R. Street ( R Street property), 127 16th
Street (16th Street property), 811 7th Street (7th Street property), 26
Bates Street (Bates Street property) and 1518 5th Street (5th Street
property). At trial, the Government also introduced evidence
regarding ICN’s purchase and resale to Brodie of a ninth property
located at 112 18th Street (18th Street property) pursuant to Federal
Rule of Evidence 404(b). See Fed. R. Evid. 404(b) (“Evidence of
other crimes, wrongs, or acts . . . may . . . be admissible . . . as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .”). ICN was the initial
purchaser of all of the properties except the 36th Street property,
which was purchased by Dorothy Wallace, the mother of Brodie’s
child.
4
10, 1996, ICN purchased a house for $45,000 (the 15th Street
property) and resold it to Brodie for $125,000 on the same day.
Brodie obtained a personal loan based on the inflated resale
price, using part of the loan to cover ICN’s $45,000 purchase
price and keeping the remainder of the loan proceeds for
himself. Over the course of the scheme, Brodie obtained loans
totaling $867,500.
To obtain a loan based on the inflated resale price, Brodie
had to provide a false appraisal and other documentation to the
mortgage lender—Brodie therefore recruited the assistance of
several co-conspirators. Esther Stroy-Harper (Harper), a
licensed real estate appraiser in Maryland and Washington,
D.C., provided a false appraisal for each of the nine properties
at Brodie’s direction. Harper testified at trial that, although an
appraiser is hired by the seller and should not meet with the
buyer, she met with Brodie before appraising each property.
Harper stated that Brodie directed her to make an inflated
appraisal so that Brodie could obtain a loan at the higher value.
For example, Harper testified that Brodie paid her $300 to
appraise a property (the 6th Street property) at $125,000 even
though the property was not worth more than $55,000. Harper
justified each inflated appraisal by comparing the subject
property to other properties in “neighborhoods that were better
and higher in value.” Trial Tr. 378, Jan. 12, 2005. Harper also
testified that Brodie asked her to omit from the appraisals the
original contract price on ICN’s purchase of the property and the
fact that several of the properties had been sold to ICN at
foreclosure and at one-half of the value of her appraisal.
Mortgage brokers Padonu and Kareem, who pleaded guilty,
assisted Brodie by preparing false mortgage applications and
submitting the applications to mortgage lenders at Brodie’s
direction. Additionally, George Akinmurele, a CPA, prepared
false tax documentation for Brodie’s mortgage loan applications.
5
Bank records show that Brodie paid Padonu and Akinmurele for
their services.
B. Trial
The jury trial began on January 10, 2005. FBI Special Agent
Christine Taylor testified, summarizing the transactions relating
to the eight properties charged in the scheme.3 Taylor explained
that ICN initially purchased seven of the eight properties and
promptly resold them to Brodie at higher values.
Bill Brewster, an underwriting expert at the Federal National
Mortgage Association (Fannie Mae), testified as an expert
witness for the Government regarding loan underwriting and
underwriting guidelines. Brewster described the loan
application and approval process in general and described how
a false appraisal is used to inflate the value of a loan. In
particular, Brewster testified that a loan amount is based on an
independent appraisal of the property and the sales price. He
further explained that the lender relies in part on the sales
history of a property because any significant change in value can
indicate that the property is inflated in value. Brewster noted
that a lender would not know if ICN’s original purchase of the
property took place on the same day as the resale to Brodie and
the issuance of the loan unless the appraiser disclosed this
information to the lender. Brewster also stated that a lender
would not make a loan if it discovered that the loan was being
used to pay for the seller’s (ICN’s) original purchase of the
property.
Six real estate brokers and appraisers who had participated
in transactions involving the various properties testified about
the values of the properties, the sale of the properties to the shell
3
Taylor’s testimony was based on loan files, property settlement
files and bank files which the Government introduced into evidence
without objection.
6
company and Brodie’s involvement with the sales. Harold
Huggins appraised the 15th Street property on July 28, 1995 at
$39,000. ICN bought the property one year later for $45,000
and sold it to Brodie on the same day for $125,000. Robert
Casper (Casper), a real estate agent and former appraiser
specializing in bank foreclosures, valued the same property in
1999 at $64,000. Casper also appraised the 5th Street property
on September 12, 1996 at $48,000—ICN purchased the property
on April 29, 1997 for $56,000 and resold it to Brodie for
$130,000 less than six months later. Casper further testified that
several of the appraisals Brodie used to obtain loans were
inflated. For example, an appraisal of the 5th Street property
done on July 3, 1997 estimated the value of the property at
$132,000. Casper explained that even if the property had been
renovated after ICN’s April 1997 purchase for $56,000—which
it was not—it would not be worth even $90,000.
Larry Gardner (Gardner) created a “broker’s price opinion”
for the sale of the 7th Street property which ICN purchased on
May 2, 1997. Gardner estimated the value of the property at
$60-65,000 and ICN purchased the property for $69,000. On the
same day, ICN resold the property to Brodie for $162,000. At
trial, Gardner reviewed a February 7, 1997 report that appraised
the property at $160,000. Gardner testified that the property was
not worth one-half of that estimate and noted that the report also
falsely stated that the property included a full basement with a
half-bath and a recreation room.
Gary Wing (Wing), who was the listing agent for the 18th
Street property, attended the settlement at which the property
was sold to ICN for $47,000 on November 19, 1996. Wing
testified that the property was not worth even half of the
$121,000 Brodie paid for it one month later. Charles
Nucciarone (Nucciarone) marketed and managed foreclosed
properties, including the 18th Street property, and testified that
it was not worth the $121,000 purchase price Brodie paid (due
7
to extensive water damage) and thus appraised it at only $60-
65,000.
Daniel Elias (Elias) inspected the R Street property and
attended the November 13, 1996 settlement at which ICN
purchased it for $60,000. Elias testified that the house was
uninhabitable at the time; nonetheless ICN resold it to Brodie on
the same day for $130,000. Elias was also the selling agent for
the Bates Street and MLK properties. ICN purchased the Bates
Street property—which, according to Elias, was also
uninhabitable—for $65,000 and resold it to Brodie for $140,000
two days later. ICN purchased the MLK property for $25,000
on November 1, 2006 and sold it to Brodie for $98,000 six days
later. Special Agent Taylor testified that the remaining two
properties, 36th Street and 16th Street, were similarly purchased
by ICN and resold to Brodie. The 36th Street property was sold
to Dorothy Wallace for $46,000 on December 27, 1995 and
resold to Brodie for $110,000 on the same day; the 16th Street
property was sold for $48,500 and resold for $125,000 on
November 20, 1996.
As noted, Harper testified that, at Brodie’s direction, she
prepared inflated appraisals for each of the properties involved
in the scheme. Harper admitted on cross-examination that she
had prepared hundreds of false appraisals apart from her work
with Brodie. Harper also admitted that she had been fired from
a previous job with a mortgage broker due to a discrepancy in
“[a]n appraisal that someone else did for a loan that [she] was
doing.” Trial Tr. 465-66, Jan. 12, 2005. Harper further testified
that she had entered into a plea agreement with the government
in 2002 which required her to testify against Brodie. Harper
acknowledged that in exchange for her plea and cooperation, the
Government agreed not to prosecute her sister for the purchase
of two properties implicated in a different mortgage fraud
scheme.
8
The Government also presented witnesses who testified
about the title searches on the nine properties and the issuance
of loans to Brodie. James Hafey and Keith Smith, employees of
title companies, testified that they received title search requests
by fax sent by Brodie for three properties he purchased: the 7th
Street property on April 24, 1997, the Bates Street property on
May 27, 1997 and the 5th Street property on June 24, 1997.
Loan officers of the companies that serviced Brodie’s loans
testified that they issued the loans without knowing that the
same properties Brodie purchased had been recently sold to ICN
for half the price paid by Brodie.
The Government concluded its case-in-chief with the
testimony of Sandra Henderson, an auditor, who reviewed all of
the bank records, settlement statements, contracts and other
documents involved in the case. Henderson testified that the
funds ICN received from its sale of the properties to Brodie
were in turn used to pay for ICN’s earlier purchase of the
property. Henderson also testified that other money ICN
received from Brodie was used to make Brodie’s mortgage
payments and to pay Brodie’s credit card and utility bills and
other personal expenses.
Brodie neither testified nor called any witnesses in his
defense and his counsel did not move for acquittal at the close
of evidence. Brodie’s closing argument focused on Harper’s
credibility. For example, defense counsel argued that Harper
had pleaded guilty to participation in a mortgage fraud distinct
from Brodie’s alleged fraud. Although Harper’s separate fraud
resulted in $1.3 million in losses, defense counsel highlighted
that Harper was required to pay only $50 per month in
restitution in exchange for her cooperation in prosecuting
Brodie. He also argued that Harper met with the Government
over thirty times and was “trained on what to say.” Trial Tr.
715, Jan. 14, 2005. Defense counsel then questioned Harper’s
9
testimony that she had first alerted investigators to Brodie in
2001:
If she first brought Brodie’s name up in November of
2001, why are we in 2005 trying this case? What
evidence did the government show you that she
mentioned Brodie’s name in November, 2001 when she
first met with investigators? He is an experienced
prosecutor, he is knowledgeable. He has put in 900
exhibits. What single document do you have to support
her conclusion that she . . . mentioned Mr. Brodie’s
name when she first met with someone? Because it
didn’t happen.
Id. at 716.
The Government objected. At the bench conference the trial
judge stated:
[Brodie] was indicted a long time ago, [and] it was
because of him that it didn’t go to trial. You are barking
up the wrong tree. And her testimony is uncontested
that she mentioned it in ‘01. An[d] the reason for why
this case did not get to trial. What do you think you are
doing? . . . You are opening up the whole thing. You
want the jury to know that he changed lawyers four
times? . . . [T]here [was] a whole series of indictments
before . . . he was indicted by himself [in] ’02. I have to
tell [the jury] to ignore this argument. . . . [T]he
testimony before them is she said it in ’01. You have
nothing to contradict that. Certainly you can’t base it on
the fact that it has taken us until ’04 to try this case.
Id. at 716-718. The court then charged the jury:
The argument about whether or not [Harper] said what
she said in ’01 and how long it has taken to get this case
to trial, it is stricken. It is of no interest to you. How
10
long this case has taken and what the reasons are and
you should not for a moment try to think about why it
has taken a while to get this case to trial. It is of
absolutely no relevance to you and the only evidence
you have before you is that she said that she mentioned
his name in November ’01.
Id. at 718. Following the instruction, defense counsel continued
to question Harper’s credibility, arguing that she was “a person
that has lied over and over and over and over again.” Id. at 719.
On January 18, 2005, the jury convicted Brodie on all four
counts.
C. Post-Trial Proceedings
Seven days after Brodie’s conviction, the trial prosecutor
wrote defense counsel, stating in part:
This afternoon, I was told that in March 2004, the FBI
received an initial report from a lender regarding a bogus
mortgage loan application on behalf of Ms. Esther
Harper’s niece. The paperwork, which was submitted to
the lender in September, 2001, predates Ms. Harper’s
cooperation with the government. The loan application
identifies Ms. Harper as the interviewing loan officer
and contains some false statements regarding the niece’s
employment. I have no information that Ms. Harper is
aware of the FBI’s receipt of the above-mentioned
report.
Letter from Jonathan N. Rosen, Assistant United States
Attorney, to Bruce A. Johnson, Jr., Defense Counsel (Jan. 25,
2005).
Brodie moved for a new trial on the ground that this newly
discovered evidence “would have been used by [Brodie] to
impeach the credibility of Ms. Harper.” Mot. for New Trial,
Feb. 4, 2005, at ¶ 1. The district court denied the motion,
11
concluding that any impeachment based on the post-trial
information would have been “merely cumulative” and “would
not have affected the ‘fairness of the trial the defendant actually
received’” because Harper “was impeached at trial based on acts
involving substantially the same type of conduct.” Order
Denying Mot. for New Trial, Apr. 7, 2005, at 1 (quoting United
States v. Smith, 77 F.3d 511, 514 (D.C. Cir. 1996)). The court
explained that “[h]aving been present for the wealth of
testimonial and documentary evidence that the government
introduced at trial, the Court can conclude, without hesitation,
that this new evidence would not have had any effect on the
jury’s ultimate verdict, and that, even without Harper’s
testimony, the government’s evidence was more than sufficient
to sustain a conviction.” Id. at 6. Moreover, the district court
denied the motion because “there is no evidence that ‘a new trial
would probably produce an acquittal.’” Id. at 1 (quoting United
States v. Williams, 233 F.3d 592, 593 (D.C. Cir. 2000))
(emphasis in original) (internal quotations omitted).
Brodie was sentenced on August 4, 2005. The Government
sought a four-level enhancement on the ground that Brodie was
“an organizer or leader of a criminal activity that involved five
or more participants or was otherwise extensive.” U.S.S.G.
§ 3B1.1(a). The district court imposed the four-level
enhancement under U.S.S.G. § 3B1.1, declaring that “[t]he
evidence is clear that the defendant . . . was the organizer and/or
leader of a criminal activity that involved five or more
participants.” Sentencing Tr. 25, Aug. 4, 2005. It explained that
the five participants included Brodie, “Mr. Padonu [and] Mr.
Kareem who were co-conspirators who pled out,” “Ms. Harper
[who] testified she was paid by the defendant and asked by him
to provide false appraisals, and [who] testified to her own
culpability in this conspiracy” and “Mr. Akinmurle [sic] [who]
was paid and provided false documentation regarding tax
documents.” Id. The court held in the alternative that “this was
also an extensive criminal activity within the meaning of 3B1.1”
12
because “[e]ight properties were involved [over] some eighteen
months.” Id. at 26. The court further noted that it was applying
“the Guideline range, although this is a case that [the court]
would be tempted to exceed the guideline range, but [the court]
did not give you notice.” Id. at 37.
At sentencing, defense counsel did not request a downward
departure based on Brodie’s immigrant status under United
States v. Smith, 27 F.3d 649 (D.C. Cir. 1994).4 The court
sentenced Brodie to concurrent 57 months’ imprisonment on
each of the conspiracy and wire fraud counts and ordered Brodie
to pay $355,449.70 in restitution pursuant to 18 U.S.C.
§ 982(a)(2)(A). Brodie filed a timely appeal on August 10,
2005.5
II.
We address separately Brodie’s closing argument, new trial
motion, sentencing, ineffective assistance of counsel and pro se
claims.
A. Closing Argument
During closing argument, defense counsel argued that
Harper was not credible because she testified that she had first
mentioned Brodie’s name to FBI investigators in 2001 yet
Brodie did not go to trial until 2005. Amicus claims that the
district court erred in sustaining the Government’s objection to
this argument. We review for abuse of discretion. See United
4
Brodie is a Jamaican national and a legal permanent resident of
the United States.
5
Two weeks later, Brodie’s trial counsel informed the Court that
he was withdrawing from further representing Brodie. We
subsequently appointed the Federal Public Defender to act as amicus
curiae to present arguments on Brodie’s behalf. Order Denying
Appellant’s Second Mot. for Release Pending Appeal, Jan. 24, 2006.
13
States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992) (per
curiam).
Defense counsel is permitted to argue “all reasonable
inferences from the facts in the record.” Id. (citing United States
v. DeLoach, 504 F.2d 185, 190 (D.C. Cir. 1974)). Brodie’s
claim that the five-year span from investigation to trial
impugned Harper’s veracity, however, “moved from arguing fair
inferences from the record to arguing the existence of facts not
in the record.” Id. at 25 (emphasis in original). Not only was
there no record evidence connecting the delay to Harper’s
credibility but the record in fact indicated that Brodie himself
caused the delay by changing counsel four times. As the district
court noted, defense counsel risked prejudicing his client by
drawing attention to the delay. Trial Tr. 716-17, Jan. 14, 2005
(“What do you think you are doing? . . . You are opening up
the whole thing. You want the jury to know that he changed
lawyers four times?”). A trial court “has ‘broad discretion in
controlling the scope of closing argument,’ and an abuse of that
discretion will be found only where the effect of the trial court’s
ruling is to ‘prevent[ ] defense counsel from making a point
essential to the defense.’” Hoffman, 964 F.2d at 24 (quoting
United States v. Sawyer, 443 F.2d 712, 713 (D.C. Cir. 1971))
(alteration in Hoffman). The district court did not abuse its
discretion in refusing to permit an argument that misinterpreted
the evidence, was unrelated to Harper’s credibility and risked
prejudicing the defendant. See Sawyer, 443 F.2d at 714 (district
court properly excluded “statements that misrepresent the
evidence or the law, introduce irrelevant prejudicial matters, or
otherwise tend to confuse the jury”) (footnotes omitted).
Amicus further argues that the court’s jury instruction that
“the only evidence you have before you is that [Harper] said that
she mentioned [Brodie’s] name in November ‘01” constituted an
improper vouching for Harper’s credibility. Trial Tr. 718, Jan.
14
14, 2005. The statement did not endorse Harper’s credibility,
however, when viewed in the context of the entire instruction:
The argument about whether or not [Harper] said what
she said in November ’01 and how long it has taken to
get this case to trial, it is stricken. It is of no interest to
you. How long this case has taken and what the reasons
are and you should not for a moment try to think about
why it has taken a while to get this case to trial. It is of
absolutely no relevance to you and the only evidence
you have before you is that she said that she mentioned
his name in November ’01.
Id.
The statement in toto instructed the jury to ignore both the
length of time the case took to proceed to trial and the reason for
the delay. “[T]he only evidence you have before you” thus
referred simply to the fact that Harper said she had mentioned
Brodie’s name in 2001 and not to Harper’s credibility.
Moreover, defense counsel extensively questioned Harper’s
credibility after the instruction. See id. at 718-21. Accordingly,
the district court’s instruction, taken in context, did not imply
that Harper’s testimony was credible and thus was not an abuse
of discretion. See United States v. Schwartz, 924 F.2d 410, 424
(2d Cir. 1991) (“Having reviewed the comments of which
appellants complain in context, we do not think [the judge’s]
comments vouched for [the witness’s] credibility or were in any
event prejudicial to defendants.”) (emphasis added).
B. New Trial Motion
Amicus argues that the district court erred in refusing to
grant a new trial based on the Government’s alleged Brady
15
violation.6 While we generally review the district court’s denial
of a new trial motion for abuse of discretion, the denial of a new
trial motion based on a Brady claim is “something of a special
situation.” United States v. Oruche, 484 F.3d 590, 595 (D.C.
Cir. 2007). Under the abuse of discretion standard, we defer to
the district court’s findings of fact but “once the existence and
content of undisclosed evidence has been established, the
assessment of the materiality of this evidence under Brady is a
question of law.” Id. “[O]nce a court finds a Brady violation, a
new trial follows as the prescribed remedy, not as a matter of
discretion.” Id.
“There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.”
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). As noted
earlier, the prosecutor failed to disclose (until seven days after
trial) that in 2004 the FBI had learned that Harper had been
involved in a fraudulent loan application on behalf of her niece
in 2001. While the Government does not contest that the
information was favorable to Brodie as impeachment evidence
or that it was not disclosed until after trial, the Government does
maintain that Brodie was not prejudiced by the non-disclosure.
“To satisfy the prejudice component, the withheld evidence
must be ‘material;’ that is, there must be ‘a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” United
6
The holding in Brady v. Maryland, 373 U.S. 83 (1963), “requires
the government to disclose, upon request, material evidence favorable
to a criminal defendant, including evidence held by law enforcement
officials.” United States v. Oruche, 484 F.3d 590, 596 (D.C. Cir.
2007) (citing Brady, 373 U.S. at 87).
16
States v. Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008) (quoting
Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473
U.S. 467, 676 (1985))). Amicus claims that the withheld
evidence was material because it would have assisted in the
impeachment of Harper. The Government counters that the
impeachment evidence was cumulative and cumulative
impeachment evidence is not material. See, e.g., Oruche, 484
F.3d at 599-600 (failure to disclose grand jury transcript of
witness’s admission to lying in another case was not Brady
violation because witness was “thoroughly impeached” at trial
when cross-examined about prior convictions, past incidents of
lying and benefits received in exchange for testimony); United
States v. Maloney, 71 F.3d 645, 653 (7th Cir. 1995)
(impeachment evidence that lawyer witness instructed client to
lie was cumulative because witness admitted to taking
statements from other clients with full knowledge of falsity);
United States v. Kozinski, 16 F.3d 795, 818 (7th Cir. 1994)
(evidence that witness participated in two additional drug sales
was cumulative where witness admitted to being drug dealer);
United States v. Marashi, 913 F.2d 724, 732-33 (9th Cir. 1990)
(witness’s false statement was cumulative where her trial
testimony was contradicted by another prior statement). As the
district court noted, Harper was thoroughly impeached at trial.
Order Denying Mot. for New Trial at 5 (“[T]he jury was well
aware of Harper’s legacy of past untruths . . . .”). For example,
Harper admitted on cross-examination that she had prepared
hundreds of false appraisals apart from her work for Brodie and
that she had been fired from a previous job with a mortgage
broker due to a discrepancy in “[a]n appraisal that someone else
did for a loan that I was doing.” Trial Tr. 465-66, Jan. 12, 2005.
Defense counsel also questioned Harper’s motivation to testify
truthfully by highlighting the reduced sentence she was likely to
receive for testifying against Brodie.
To be cumulative, however, undisclosed impeachment
evidence must be “the same kind of evidence” as that introduced
17
at trial. United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir.
1996). In Cuffie a co-defendant, who pleaded guilty and
testified, was impeached at trial by evidence “that he was a
cocaine addict; that he was a cooperating witness; that, as the
owner of the apartment, he had an incentive to place
responsibility for the drugs on someone else; and that he had
violated his oath as a police officer to uphold the law.” Id. The
Government failed to disclose that the witness had lied under
oath in an earlier court proceeding involving the same
conspiracy. Id. We held that the witness’s testimony was
“almost unique in its detrimental effect on [his] credibility” and
therefore ordered a new trial. Id.
Amicus similarly asserts that the undisclosed report was not
“the same kind of evidence” and thus was not cumulative.
Cuffie, 80 F.3d at 518. Specifically, Amicus contends that the
report was unique because it revealed that Harper engaged in
fraud as a loan officer whereas the other impeachment evidence
involved fraud as an appraiser. We do not agree—Harper’s
admission that she prepared loan applications containing false
statements for Brodie is similar to her previous admissions that
she had prepared hundreds of appraisals containing false
statements. The withheld evidence was simply another
illustration of Harper’s untruthfulness rather than evidence
“almost unique in its detrimental effect” on Harper’s credibility.
Id. This case thus differs from Cuffie, where the Government
withheld the fact that a critical witness—a co-defendant who
had pleaded guilty—perjured himself in a previous court
proceeding involving the same conspiracy and there was no
other impeachment evidence that he had testified untruthfully in
the past. Accordingly, we conclude that the withheld report was
merely cumulative of other impeachment evidence and therefore
the district court properly denied Brodie’s new trial motion.
18
C. Brodie’s Enhanced Sentence
Amicus claims that the district court improperly applied a
four-level sentencing enhancement pursuant to U.S.S.G.
§ 3B1.1. Section 3B1.1 of the Guidelines provides that the
defendant’s offense level should be increased by four levels “[i]f
the defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise
extensive.” U.S.S.G. § 3B1.1(a). Amicus argues that there was
no evidence that Brodie was an “organizer or leader” or that
there were at least five participants in the scheme. We review
the district court’s factual findings supporting a section 3B1.1
enhancement under the “clearly erroneous” standard of review.7
See United States v. Shah, 453 F.3d 520, 524 (D.C. Cir. 2006);
United State v. Yeh, 278 F.3d 9, 14 (D.C. Cir. 2002).
1. Organizer or Leader
Amicus claims that Brodie did not exercise control over any
of the other participants in the scheme and therefore Brodie was
not “an organizer or leader of a criminal activity.” Amicus notes
that all of the other participants had been involved in similar
fraudulent conduct before their participation in Brodie’s scheme
and “it is far more likely that Padonu and/or Kareem supervised
defendant and told him how to complete the process, as one of
them was the loan officer on all nine of the properties with
which defendant was involved.” Amicus Br. 39. Amicus
contends that Brodie’s involvement is similar to that of the
defendant in United States v. Quigley, 373 F.3d 133 (D.C. Cir.
2004), where the court held that a real estate agent involved in
a “flipping” scheme was not “an organizer or leader.”
7
Although Brodie objected to the district court’s “five
participants” finding at sentencing, he did not object to the “organizer
or leader” finding. We need not reach whether that finding is
reviewed for plain error only, however, because we conclude that the
enhancement was not erroneous.
19
While plainly control is one factor in determining whether
someone qualifies as an “organizer or leader,” the Guidelines
include several other factors, including “the exercise of decision
making authority, the nature of participation in the commission
of the offense, the recruitment of accomplices, the claimed right
to a larger share of the fruits of the crime [and] the degree of
participation in planning or organizing the offense.” U.S.S.G.
§ 3B1.1, cmt. n.4. The record contains evidence supporting each
of these factors.
First, Brodie recruited individuals with specialized skills to
facilitate his scheme: Akinmurele prepared false financial
documents, Harper appraised the properties and Padonu or
Kareem submitted the false loan applications. Second, Brodie
coordinated the group’s efforts and directed them in the
performance of their respective tasks. For example, Brodie met
with Harper and directed her to appraise the properties at
specific inflated prices. Similarly, Brodie directed Akinmurele
to prepare false documents to conform with information Brodie
had already submitted to the lender. Brodie also directed
Padonu and Kareem to file the false loan applications. Finally,
Brodie paid the other participants flat fees for their
services—several hundred dollars each—and kept the “fruits of
the crime” (the loan proceeds) for himself. Accordingly, the
record supports the finding that Brodie was an organizer or
leader of the criminal activity. See United States v. Wilson, 240
F.3d 39, 46-47 (D.C. Cir. 2001) (affirming imposition of
enhancement because “[t]he exercise of decision making
authority, recruitment, and a claimed right to a larger share of
the proceeds are prominent among the factors that the
commentary to the Guidelines indicates should be considered”);
United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994)
(defendant exercised control over others as “organizer or leader”
by instructing other participants to take specific actions).
20
The holding in Quigley does not compel a different result.
Quigley was a real estate agent who pleaded guilty to conspiracy
to defraud the United States for her role in a house-flipping
scheme. 373 F.3d at 134-35. She aided the scheme by helping
her co-conspirators find appraisers to inflate the property values
and by helping buyers obtain false income records so that they
qualified for federally insured mortgages. Id. at 134. The court
held that a four-level “organizer or leader” enhancement was not
warranted because “[e]ntirely lacking on the record before us is
any evidence that Quigley had any sort of hierarchically superior
relationship with the persons who were purportedly her
subordinates.” Id. at 140. While Quigley assisted others to
engage in a fraud, Brodie recruited and organized his co-
conspirators so that he could purchase the properties and retain
the fruits of the fraud. Brodie occupied the top position in the
conspiracy hierarchy, directing and supervising the efforts of an
appraiser, two loan officers and an accountant. Quigley was
simply a facilitator but Brodie designed and led the conspiracy.
Accordingly, the district court did not err in finding that Brodie
was an “organizer or leader.”
2. Five Participants or Otherwise Extensive
While Amicus does not contest that Padonu, Kareem and
Harper were participants in the fraudulent scheme, Amicus does
assert that Akinmurele cannot be characterized as a criminally
responsible participant because “there is no indication that he
had any knowledge of the ‘flipping’ scheme.” Amicus Br. 40.
Accordingly, Amicus contends that the record does not support
the finding that Brodie was the leader of a scheme involving five
participants.
The comment to section 3B1.1 defines a participant as “a
person who is criminally responsible for the commission of the
offense, but need not have been convicted.” U.S.S.G. § 3B1.1
cmt. n. 1. A person is “‘criminally responsible’ under § 3B1.1
only if ‘he commit[s] all of the elements of a statutory crime
21
with the requisite mens rea.’” United States v. McCoy, 242 F.3d
399, 410 (D.C. Cir. 2001) (quoting United States v. Bapack, 129
F.3d 1320, 1325 (D.C. Cir. 1997) (internal quotations omitted))
(emphasis added and alteration in McCoy). The person need not
be “found criminally responsible as a principal or culpable in the
same crime of which the supervising defendant was convicted:
‘[J]ust as a party who knowingly assists a criminal enterprise is
criminally responsible under principles of accessory liability, a
party who gives knowing aid in some part of the criminal
enterprise is a “criminally responsible party” under the
Guidelines.’” Bapack, 129 F.3d at 1325 (quoting United States
v. Hall, 101 F.3d 1174, 1178 (7th Cir. 1996)) (alteration in
Bapack).
Based on the record, the district court’s finding that
Akinmurele was a criminally responsible person was not clearly
erroneous. Akinmurele admitted to the FBI that he prepared
false financial statements for Brodie at Brodie’s direction and
bank records corroborate Akinmurele by indicating that Brodie
paid Akinmurele for his services. Therefore, the imposition of
the four-level enhancement pursuant to U.S.S.G. § 3B1.1 was
not clearly erroneous.
D. Failure to Request Downward Departure
Amicus claims that Brodie’s trial counsel provided
ineffective assistance because he did not request a downward
departure based on Brodie’s immigration status pursuant to
United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). To
demonstrate that “counsel’s assistance was so defective as to
require reversal of a conviction . . . the defendant must [first]
show that counsel’s performance was deficient.” Strickland v.
Washington, 466 U.S. 668, 687 (1984) “Second, the defendant
must show that the deficient performance prejudiced the
defense.” Id. While we often remand an ineffectiveness claim
for an evidentiary hearing, see United States v. Geraldo, 271
F.3d 1112, 1116 (D.C. Cir. 2001), we dispose of such a claim
22
“when the trial record conclusively shows that the defendant is
entitled to no relief; and when the trial record conclusively
shows the contrary.” Id.
In Smith, “we allowed [a] downward departure because of a
defendant’s status as a deportable alien, recognizing that
because such aliens were ineligible for spending the last 10% of
their sentences in community-based confinement and could not
be assigned to minimum security prisons . . . a defendant’s
deportable alien status would ‘substantial[ly] . . . affect the
severity of his confinement.’” United States v. Graham, 83 F.3d
1466, 1481 (D.C. Cir. 1996) (quoting Smith, 27 F.3d at 655).
While recognizing that the district court was not required to
grant a Smith departure, Amicus argues that “there is no
conceivable tactical reason for a defendant not to request one”
and that “there is at least a ‘reasonable probability’ that the
district court would have granted a Smith departure.” Amicus
Br. 42, 44.
Assuming arguendo that trial counsel was deficient in failing
to request a Smith departure,8 Amicus cannot demonstrate that
the deficiency prejudiced Brodie because the district court made
clear that it would not have departed downward. See Sentencing
Tr. 37, Aug. 8, 2005 (“I will apply the Guideline range, although
this is a case that I would be tempted to exceed the guideline
range, but I did not give you notice.”) (emphasis added).
Accordingly, we conclude that Brodie is not entitled to relief
based on his ineffectiveness claim. See Strickland, 466 U.S. at
687 (To demonstrate that “counsel’s assistance was so defective
as to require reversal of a conviction . . . the defendant must
show that the deficient performance prejudiced the defense.”).
8
We note, however, that Amicus conceded at oral argument that
“there may be cases where tactically or strategically the lawyer doesn’t
ask for [a Smith departure].” Oral Argument 41:02-06, Nov. 13, 2007.
23
E. Pro Se Claims
In addition to raising some of the arguments addressed
above, Brodie raises ten additional arguments in his five pro se
filings.
1. Sufficiency of the Evidence
Brodie first argues that his conviction should be reversed for
insufficient evidence. Viewing the evidence in the light most
favorable to the government, we must accept “the jury’s guilty
verdict if we conclude that ‘any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.’” United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir.
2005) (quoting United States v. Arrington, 309 F.3d 40, 48 (D.C.
Cir. 2002)). While this articulation imposes an “‘exceedingly
heavy burden,’” Brodie’s burden is “even heavier” because he
failed to move for a judgment of acquittal and we thus consider
his claim only if denial on the waiver ground would constitute
a “‘manifest miscarriage of justice.’” United States v. Booker,
436 F.3d 238, 241 (D.C. Cir. 2006) (quoting United States v.
Salamanca, 990 F.2d 629, 637 (D.C. Cir. 1993); United States
v. Thompson, 279 F.3d 1043, 1051 (D.C. Cir. 2002)).
To be guilty of the charged conspiracy, Brodie had to enter
into an agreement to commit fraud, knowingly participate in the
conspiracy and commit “‘at least one overt act . . . in furtherance
of the conspiracy.’” United States v. Alston-Graves, 435 F.3d
331, 337 (D.C. Cir. 2006) (quoting United States v. Mellen, 393
F.3d 175, 180-81 (D.C. Cir. 2004) (internal quotation omitted)).
“The elements of the wire fraud offense [a]re that [Brodie]
knowingly and willingly entered into a scheme to defraud and
that an interstate wire communication was used to further the
scheme.” Id. Because “the record is not devoid of evidence”
supporting each element of both offenses—the documentary
evidence alone demonstrates Brodie’s extensive involvement in
the scheme—no manifest miscarriage of justice results from
24
rejecting Brodie’s sufficiency claim. Thompson, 279 F.3d at
1051.
2. Ineffective Assistance of Counsel
Brodie next asserts that his counsel was ineffective in failing
to move for judgment of acquittal. Because the evidence of
Brodie’s guilt was overwhelming, Brodie was not prejudiced by
his counsel’s failure to move for a judgment of acquittal.
Absent a finding of prejudice, Brodie’s ineffectiveness claim
fails. See Strickland, 466 U.S. at 694.
3. “Expert” Witness Claim
Brodie also claims that Harper and Brewster were not
qualified to testify as expert witnesses. Harper did not testify as
an expert witness, however, and Brodie stipulated to Brewster’s
expert status at trial.
4. Statute of Limitations and Speedy Trial Claim
Brodie argues that the indictment was untimely under the
five-year statute of limitations for non-capital crimes, 18 U.S.C.
§ 3282(a), and thus violated his speedy trial right under the Sixth
Amendment. The statute of limitations for crimes affecting
financial institutions is ten years, see 18 U.S.C. § 3293, and thus
the indictment was timely filed.
5. Jurisdiction and Venue
Brodie asserts that the case was improperly tried in the
District of Columbia (District) because the defrauded lenders
were located both in the District and in Maryland. “The
government bears the burden of establishing by a preponderance
of the evidence that venue is proper with respect to each count
charged against a defendant.” United States v. Lam Kwong-
Wah, 924 F.2d 298, 301 (D.C. Cir. 1991). Because overt acts in
furtherance of the conspiracy took place in the District—seven
of the properties are located in the District—venue was proper
25
on the conspiracy count. See 18 U.S.C. § 3237(a) (“Except as
otherwise expressly provided by enactment of Congress, any
offense against the United States begun in one district and
completed in another, or committed in more than one district,
may be inquired of and prosecuted in any district in which such
offense was begun, continued, or completed.”); Lam Kwong-
Wah, 924 F.2d at 301 (“It is a well-established rule that ‘a
conspiracy prosecution may be brought in any district in which
some overt act in furtherance of the conspiracy was committed
by any of the co-conspirators.’” (quoting United States v.
Rosenberg, 888 F.2d 1406, 1415 (D.C. Cir. 1989))). Venue was
proper on the wire fraud count because Brodie faxed title search
requests from the District to settlement companies in Maryland.
See 18 U.S.C. § 3237(a); United States v. Allen, 491 F.3d 178,
186 (4th Cir. 2007) (“[O]verwhelming evidence was adduced at
trial to support the convictions of [defendants] on wire fraud and
aiding and abetting wire fraud” because “there is ample
evidence that [defendant] faxed fraudulent documents.”).
6. Confrontation Clause Claim
Brodie contends that his Confrontation Clause right under
the Sixth Amendment was violated because documentary
evidence was admitted into evidence by agreement of the parties
without an opportunity for him to cross-examine witnesses in
support thereof. “[E]ven under the more stringent procedural
due process standards applicable to criminal proceedings, the
courts have held that the right to confront and cross-examine
witnesses may be waived.” Ritz v. O’Donnell, 566 F.2d 731,
735 (D.C. Cir. 1977) (citing Taylor v. United States, 414 U.S.
17, 19-20 (1973)). Brodie did so here.
7. Forfeiture Order
As noted earlier, the district court ordered Brodie to pay
$355,449.70 in restitution pursuant to 18 U.S.C. § 982(a)(2)(A).
See 18 U.S.C. § 982(a)(2)(A) (“[A] person convicted of a
26
violation of, or a conspiracy to violate [18 U.S.C. § 1343]
affecting a financial institution, . . . [must] forfeit to the United
States any property constituting, or derived from, proceeds the
person obtained directly or indirectly, as the result of such
violation.”) (emphasis added); 18 U.S.C. § 20(1) (defining
“financial institution” as “an insured depository institution (as
defined in section 3(c)(2) of the Federal Deposit Insurance
Act)”). Brodie claims that the district court’s forfeiture order
should be reversed because the Government failed to prove that
the lenders are institutions insured by the FDIC. The
Government, however, introduced affidavits from the FDIC’s
Assistant Executive Secretary certifying that the lenders are
FDIC-insured. Brodie also contends that forfeiture was not
authorized under section 982 because the lenders resold their
mortgage receivables to other financial institutions but the
statute does not create such an exception. See 18 U.S.C.
§ 982(a)(2) (“The court, in imposing sentence on a person
convicted of a violation of, or a conspiracy to violate [18 U.S.C.
§ 1343] affecting a financial institution . . . shall order that the
person forfeit to the United States any property constituting, or
derived from, proceeds the person obtained directly or
indirectly, as the result of such violation.”) (emphases added).
8. Miscellaneous Arguments
Brodie makes the following arguments in passing: (1) the
indictment was “duplicitous,” (2) the jury instructions were
“confusing” and (3) his enhanced sentence was unconstitutional
under United States v. Booker, 543 U.S. 220 (2005). Because
Brodie makes only conclusionary assertions regarding these
arguments, we consider these claims abandoned on appeal. See
United States v. Hall, 370 F.3d 1204, 1209 n.4 (D.C. Cir. 2004)
27
(“[O]ne sentence, unaccompanied by argument or any citation
to authority, does not preserve the issue for decision.”).9
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.
9
Moreover, on the merits we reject Brodie’s arguments because
the indictment was not duplicative, Brodie does not point to any jury
instruction that was confusing and his enhanced sentence was not
unconstitutional under Booker because the court did not treat the
Guidelines as mandatory, see 543 U.S. at 249-59.