FILED
United States Court of Appeals
Tenth Circuit
March 23, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3144
v.
WILDOR WASHINGTON, SR.,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 2:09-CR-20107-JWL-1)
Christopher Pudelski of Law Offices of Christopher R. Pudelski, Washington,
D.C., for Defendant - Appellant.
D. Christopher Oakley, Assistant United States Attorney, (Barry R. Grissom,
United States Attorney, on the brief), Kansas City, Kansas, for Plaintiff -
Appellee.
Before KELLY, BALDOCK, and HARTZ, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Wildor Washington, Sr. was convicted of conspiracy
to commit wire and mail fraud, 18 U.S.C. §§ 371, wire fraud, 18 U.S.C. §§ 2,
1343, and commercial carrier fraud, 18 U.S.C. §§ 2, 1341. He was acquitted of
making a false statement to a federal investigator and money laundering. Mr.
Washington was sentenced to 36 months’ imprisonment and three years’
supervised release. On appeal, he argues (1) the evidence was insufficient on the
commercial carrier fraud count because use of the carrier was not essential to the
scheme, occurring after the purpose of the scheme had been completed; and (2)
his sentence was improperly increased based upon a loss calculation that included
losses incurred by assignees of original loans. Aplt. Br. 1-2. Our jurisdiction
arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm.
Background
Mr. Washington, serving as a mortgage broker, assisted Emma Jean Holmes
in the purchase of three houses in Overland Park, Kansas. Doc. 125 at 2. The
loan applications overstated Ms. Holmes’s income and included other
misstatements. 1 R. 84. Upon nonpayment of the loans, foreclosure proceedings
ensued. As part of those proceedings, each property was auctioned at a sheriff’s
sale and acquired by the lender or an assignee and then resold on the open market.
The basis for the commercial carrier fraud charge was a September 2004
transaction where closing documents were sent to the lender via Federal Express.
See Aplt. Br. 9. At trial, Denise Robinett, a closing agent for the Kansas Secured
Title company who handled the September 2004 transaction, testified that it was
standard industry practice to send closing documents overnight via Federal
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Express. See id. at 11-12. She also testified that there was nothing unique about
this particular transaction that required overnight delivery via commercial carrier.
Id. at 12. Mr. Washington had not requested that Robinett use Federal Express
for this transaction, id. at 13, and he argued that the scheme had already reached
fruition once Ms. Holmes received the loan money and title to the property; the
subsequent mailing of the closing documents was not in execution of the scheme
to defraud.
Following his conviction, Mr. Washington filed a motion for judgment of
acquittal, which included the argument that the evidence was insufficient on the
commercial carrier fraud count. Id. at 15. In a June 2, 2010, order the district
court denied the motion as to the commercial carrier charge, reasoning that “[i]f
the fraudulent scheme was to procure the loans, then the scheme reached fruition
only once all the requirements for obtaining the loan were satisfied.” United
States v. Washington, 724 F. Supp. 2d 1122, 1136 (D. Kan. 2010). Because
mailing the form was a required step in the process of obtaining the loan, the
court reasoned, it “would have been contemplated by Mr. Washington and Ms.
Holmes at the time that they sought to obtain the loan.” Id. at 1138. In addition,
even assuming the scheme was complete upon Ms. Holmes’s receipt of the loan
money and title, the sending of the closing documents here “lulled the lender into
a false sense of security.” Id. at 1137 (citing United States v. Maze, 414 U.S.
395, 403 (1974); United States v. Lane, 474 U.S. 438, 451-52 (1986)).
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In challenging his sentence Mr. Washington asserts that assignment of any
loans prior to the final sale of foreclosed properties should have been taken into
account in the loss calculation. Mr. Washington participated in four mortgage
transactions involving three properties. The foreclosure records reflect that some
of the loans involved in these transactions may have been assigned prior to
foreclosure. See 1 R. 305-06. At least one was sold with recourse such that
National Cities, the original lender, purchased back the loan pursuant to
agreement with the purchaser. See 2 R. 751. There was also some evidence that
one or more of the other loans may have continued in the hands of or reverted
back to the original lenders. Id. at 793.
At the sheriff’s sale the lenders (original or assigned) “bid in” the property
for the amount owed on the outstanding loan so that they could complete the
foreclosure process and sell the properties. See id. at 748-49. The final sale price
following foreclosure was used to determine the value of the collateral, i.e., Loss
= (amount owed to original lender) - (amount received from downstream
purchaser on open market following foreclosure). Aplt. Br. 17. Mr. Washington
challenges this calculation on the grounds that it includes losses not attributable
to him as well as losses of assignees to the original loans, which, he argues, is
contrary to our holding in United States v. James, 592 F.3d 1109 (10th Cir. 2010).
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Discussion
A. Sufficiency of the Evidence
We review sufficiency of the evidence challenges de novo, viewing the
evidence in the light most favorable to the government to determine whether any
reasonable trier of fact could conclude that Mr. Washington was guilty beyond a
reasonable doubt. United States v. Mullins, 613 F.3d 1273, 1279 (10th Cir.
2010).
Title 18 U.S.C. § 1341 makes it a crime to use the mails or a common
carrier to carry out a scheme to defraud or obtain money or property. “To
establish guilt under the mail-fraud statute, the government had to prove that (1)
[Mr. Washington] engaged in a scheme or artifice to defraud or to obtain money
by means of false and fraudulent pretenses; (2) he did so with the intent to
defraud; and (3) he used [a private or commercial interstate carrier] to facilitate
that scheme.” United States v. Chavis, 461 F.3d 1201, 1207 (10th Cir. 2006)
(internal quotation marks, alteration, and citations omitted).
Mr. Washington asserts that where the commercial agent’s use of a
commercial carrier is not an essential part of a scheme, then evidence of the use
of Federal Express to send the closing documents in a fraudulent scheme is
insufficient for conviction of commercial carrier fraud. This argument finds no
support in our precedent. It suffices that Mr. Washington knew of the industry
custom of overnighting closing documents by way of commercial carrier. “To be
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part of the execution of the fraud . . . the use of the mails need not be an essential
element of the scheme. It is sufficient for the mailing to be incident to an
essential part of the scheme or a step in the plot.” Schmuck v. United States, 489
U.S. 705, 710-11 (1989) (internal quotation marks and citations omitted); see,
e.g., United States v. Parker, 553 F.3d 1309, 1319 (10th Cir. 2009). To be
actionable, the use of the mails must be “part of the execution of the scheme as
conceived by the perpetrator at the time,” and, where the perpetrator does not
personally effect the mailing, it will suffice “if the perpetrator ‘does an act with
knowledge that the use of the mails will follow in the ordinary course of business,
or where such use can reasonably be foreseen, even though not actually
intended.’” United States v. Weiss, 630 F.3d 1263, 1269 (10th Cir. 2010)
(quoting Pereira v. United States, 347 U.S. 1, 8-9 (1954)). Here it was well
within reason for the jury to conclude that Mr. Washington was knowledgeable of
industry practices such that he would foresee the use of Federal Express in
closing.
B. Loss Calculations
We review sentences under an abuse of discretion standard for procedural
and substantive reasonableness. United States v. Sutton, 520 F.3d 1259, 1262
(10th Cir. 2008). Under this standard factual findings regarding loss calculations
are reviewed for clear error and loss calculation methodology de novo. James,
592 F.3d at 1114.
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U.S.S.G. § 2B1.1(b) increases a defendant’s base offense level for fraud
according to the amount of the loss. The court is instructed to use the greater of
actual or intended loss. U.S.S.G. § 2B1.1 cmt. n.3(A). The Sentencing
Guidelines define “actual loss” as “the reasonably foreseeable pecuniary harm
that resulted from the offense.” U.S.S.G. § 2B1.1 cmt. n.3(A)(i); see, e.g.,
Sutton, 520 F.3d at 1263. If the loss is not reasonably determinable, then a court
must use the gain that resulted from the fraud as an alternative measure. U.S.S.G.
§ 2B1.1 cmt. n.3(B). “The defendant’s gain may be used only as an alternate
estimate of that loss; it may not support an enhancement on its own if there is no
actual or intended loss to the victims.” United States v. Galloway, 509 F.3d
1246, 1252 (10th Cir. 2007) (internal quotation marks and citations omitted).
On appeal, Mr. Washington does not challenge the factual findings of the
district court. The district court concluded that downstream purchasers of
mortgages were victims of the mortgage fraud and that their losses were
foreseeable to Mr. Washington, a veteran of the real estate industry. 2 R. 829.
We therefore proceed to consider the methodology employed by the district court.
Where a lender has foreclosed and sold the collateral, the net loss should be
determined by subtracting the sales price from the outstanding balance on the
loan. James, 592 F.3d at 1114 (citing United States v. Swanson, 360 F.3d 1155,
1169 (10th Cir. 2004)). In making this calculation, the district court may use loss
information that is supported by a preponderance of the evidence. See United
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States v. Schild, 269 F.3d 1198, 1200 (10th Cir. 2001). Mr. Washington urges a
bright line be drawn between losses realized by original lenders and by assignees,
but we are not persuaded. Regardless of whether the subject loans were assigned
prior to foreclosure, the district court’s loss calculation in this case was
reasonable and supported by the evidence.
Relying on our holding in United States v. James, Mr. Washington argues
that losses from a mortgage fraud scheme should be calculated based on financial
harm to the original lender rather than a later-acquiring entity. See 1 R. 305, 403.
But James is inapposite given its facts. There, the district court found that the
losses of successor lenders did not constitute reasonably foreseeable pecuniary
harm because the defendant had no knowledge or input regarding the original
lender’s decision to resell the loans. James, 592 F.3d at 1112. This finding went
unchallenged on appeal. Id. at 1115 n.3. Given the district court’s factual
findings in James, there we considered only the losses incurred by the original
lenders and concluded that because most of the original lenders sold the loans to
successors prior to foreclosure, the loss to the original lenders was “the difference
between the outstanding balance on the original loan and what the lender received
when it sold the loan.” Id. at 1115 (citing United States v. Smith, 951 F.2d 1164,
1167 (10th Cir. 1991)).
Here, however, the district court concluded it was foreseeable to Mr.
Washington, given his experience in the industry, that the loans would be sold
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and/or repackaged. Therefore it is appropriate to include the loss incurred by
intermediary lenders in the loss calculation. See James, 592 F.3d at 1115 n.4; id.
at 1117 (Lucero, J., concurring).
Mr. Washington also argues that the loss realized in the sale of these
properties is not attributable to his fraud and, therefore, not properly included in
the loss calculation. See Aplt. Br. 44-48. But in a mortgage fraud scheme such
as this, the loss is not the decline in value of the collateral; the loss is the unpaid
portion of the loan as offset by the value of the collateral. Other courts have
acknowledged this distinction. Thus in United States v. Turk, 626 F.3d 743 (2d
Cir. 2010), the court explained that “a loan is merely the exchange of money for a
promise to repay, with no assumption of upside benefit. At any given time, the
buildings in this case were nothing more than insulation against loss.” Id. at 751.
Likewise, in United States v. Parish, 565 F.3d 528 (8th Cir. 2009), the court
remarked that “[t]he appropriate test is not whether market factors impacted the
amount of loss, but whether the market factors and the resulting loss were
reasonably foreseeable.” Id. at 535 (citing U.S.S.G. § 2B1.1 app. n. 3(A)(1)).
Although the victims of such a scheme may be able to recoup some of their loss
by selling the collateral, the initial transactions would not have occurred, let alone
in the amount they did, but for perpetration of the fraud.
Here the district court considered reasonable evidence of the losses
resulting from the subject transactions and evidence that such losses were
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foreseeable to Mr. Washington. See U.S.S.G. § 2B1.1 cmt. n. 3(C). It did not err
in calculating the loss amount.
AFFIRMED.
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