FILED
NOT FOR PUBLICATION JAN 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30276
Plaintiff - Appellee, D.C. No. 2:08-cr-00212-RAJ-2
v.
MEMORANDUM*
ROBERT ERNEST BRANDT,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted January 10, 2012**
Seattle, Washington
Before: GRABER, FISHER and RAWLINSON, Circuit Judges.
Robert Brandt appeals his conviction for wire fraud based on a fraudulent
scheme to obtain mortgage loans for the purchase of residential properties at
inflated prices. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The false statements to lenders were material. When the facts are
viewed in the light most favorable to the government, the straw buyers misstated
their income, assets, employment and intent to occupy the properties. As president
of Escrow Authority, Brandt also signed and submitted fraudulent HUD-1 forms
that misstated the fees being collected for Escrow Authority’s services. Such
statements, which bear directly on a buyer’s ability to repay the loan and on the
escrow agency’s interest in securing the loan, are material. See United States v.
Gaudin, 515 U.S. 506, 509 (1995) (holding that a false statement is material if it
has “a natural tendency to influence, or [be] capable of influencing, the decision of
the decisionmaking body to which it was addressed”) (internal quotation marks
omitted) (alteration in original); see also United States v. Nash, 115 F.3d 1431,
1437 (9th Cir. 1997). Lender representatives also testified that, had they known of
the various misstatements, they would not have made the loans at issue. We must
assume that the jury credited these witnesses. See United States v. Stewart, 420
F.3d 1007, 1015 (9th Cir. 2005). Thus there is no question that the evidence
sufficiently proved the misstatements were material. See United States v.
Mayberry, 913 F.2d 719, 723 (9th Cir. 1990) (concluding that the unchallenged
testimony of an HUD administrator that the information at issue was “highly
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significant in reviewing mortgage insurance applications” was sufficient to
establish materiality).
2. The district court did not abuse its discretion by instructing the jury on
deliberate ignorance. First, Brandt’s argument that the instruction allowed him to
be convicted on the basis of mere negligence is foreclosed by precedent. See
United States v. Heredia, 483 F.3d 913, 918-20 (9th Cir. 2007) (en banc) (holding
that the deliberate ignorance instruction does not risk lessening the state of mind
that the jury must find to something akin to recklessness or negligence). Second,
there was sufficient evidence, primarily in the form of the HUD-1s Brandt signed
in connection with the various counts, from which a reasonable jury could find that
Brandt was aware of a high probability that Escrow Authority was being used to
perpetrate a fraud and that Brand deliberately avoided learning the truth. See id. at
923; United States v. Jewell, 532 F.2d 697, 698-99 (9th Cir. 1976) (en banc).
AFFIRMED.
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