U.S. v. Ford

• Decision Date: 13 January 2009
• Docket Number: No. 07-20885.,07-20885.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marjorie Atkinson FORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

558 F.3d 371

UNITED STATES of America, Plaintiff-Appellee, v. Marjorie Atkinson FORD, Defendant-Appellant.

No. 07-20885.

United States Court of Appeals, Fifth Circuit.

January 13, 2009.

Eileen K. Wilson (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Majorie A. Meyers, Fed. Public Defender, Timothy William Crooks, Asst. Fed. Public Defender, Sarah Beth Landau (argued), Houston, TX, for Ford.

Appeal from the United States District Court for the Southern District of Texas.

Before BENAVIDES, SOUTHWICK and HAYNES, Circuit Judges.

PER CURIAM:

This is a direct criminal appeal from a conviction for conspiracy to commit wire fraud after a jury trial. Appellant Marjorie Ford argues the evidence is insufficient to sustain the conviction, claiming that the government failed to prove that she knowingly participated in the wire fraud scheme. Appellant also contends that the district court erred in imposing two sentencing enhancements and that her guideline sentence is unreasonable. Viewing the evidence in the light most favorable to the jury verdict, we find the evidence sufficient to sustain the conviction. Additionally, finding no sentencing error, we affirm the sentence.

I. FACTUAL AND PROCEDURAL HISTORY

The wire fraud scheme involved a series of real estate transactions in which co-defendant Michael Harris, aided by Ford and a mortgage broker, Jim Houston, orchestrated a scheme in which the sale price of houses were inflated using false invoices for construction, home audio, or landscaping services that Harris's company never actually provided. Thus, lenders would loan an amount greater than the value of the house, with the additional amount divided among the borrower and Harris. Additionally, during most of the transactions, Houston's wife Melissa would be paid a commission even though she did not perform any services. Harris and Houston recruited buyers, and if the buyer was unable to qualify for the loan, they would employ a "credit repair service," owned by Carlin Joubert, to add credit lines to boost the buyer's credit score and sometimes provide the purchaser with a false social security number.

Ford was responsible for preparing false real estate documents and closing transactions (even though her escrow license had been suspended and she could not legitimately close transactions), thereby facilitating the payment of inflated loans and fraudulent invoices. Ford worked for several title companies during the relevant time period, including AmeriTrust Title Company, her employer at the time of her arrest.

Harris also used the services of Valencia Armstead, a branch manager for Compass Bank. In order to induce lenders to make loans, Armstead issued false verifications of deposit for individuals who did not have the requisite funds for the loans.

Harris later recruited Armstead herself to purchase a house at 16472 Ryan Guinn Way, even though she had bad credit and had never visited the property. Harris used Joubert's company to "boost" Armstead's credit score and obtain a fraudulent social security number. At the time of Armstead's closing date, January 8, 2007, the Secret Service was investigating the case and approached Armstead at her bank office. Armstead agreed to cooperate and assist in recording conversations. Armstead called Harris, and Harris said that he would not be at the closing but Ford would be there. Harris vouched that Ford was "cool" and that he had worked with Ford in the past. The transaction was designed to net $17,000 from the proceeds of the loan from Countrywide Home Loans, with Armstead to receive a share. For the closing of this loan, Ford received instructions from Countrywide's representative. When Armstead arrived at the closing (wearing a recording device), both Harris and Ford were present. Armstead had not previously seen her own loan application. Armstead told Ford that the social security number on her loan application was incorrect. Instead of stopping the closing and informing Countrywide— pursuant to Countrywide's prior instructions—Ford told Armstead to correct the number and continue signing documents. Further, even though the evidence indicated that Ford knew that Armstead would not be living in the Ryan Guinn property (the plan was to lease the residence), Ford had Armstead sign a certificate of occupancy. Armstead testified as to "side conversations" between Harris and Ford and other circumstances that made it appear to Armstead that Ford was a knowledgeable participant. Harris and Ford were arrested during this transaction.

A grand jury returned a one-count indictment charging Harris and Ford with conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349. Harris pleaded guilty to the indictment. Ford was tried by a jury and found guilty as charged. At sentencing, the district court imposed a 16-level enhancement based on the finding of intended loss in excess of $1,000,000. U.S.S.G. § 2B1.1(b)(1)(I). The district court also imposed a two-level increase based on a finding of ten or more victims. U.S.S.G. § 2B1.1(b)(2)(A)(i). These enhancements resulted in an offense level of 24. With a criminal history category of II, Ford's guideline range was 57-71. Although the government recommended a sentence in the middle of the range, the district court sentenced Ford to the longest sentence within the range (71 months). Ford now appeals.

II. ANALYSIS

A. Sufficiency of the Evidence

Ford contends that the evidence is insufficient to sustain her conviction for conspiracy to commit wire fraud. When reviewing the sufficiency of the evidence, we view all evidence, whether circumstantial or direct, in the light most favorable to the government, with all reasonable inferences and credibility choices to be made in support of the jury's verdict. United States v. Salazar, 958 F.2d 1285, 1290-91 (5th Cir.1992). The evidence is sufficient to support a conviction if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion except guilt, so long as a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. United States v. Faulkner, 17 F.3d 745, 768 (5th Cir.1994). With respect to the offense of wire fraud, the "government must prove beyond a reasonable doubt that the defendant: (1) engaged in a scheme to defraud and (2) used, or caused the use of, wire communications in furtherance of that scheme." United States v. Rivera, 295 F.3d 461, 466 (5th Cir.2002) (citing 18 U.S.C. § 1343). With respect to conspiracy, the district court's instructions provided that the jury must be convinced beyond a reasonable doubt that: (1) "two or more persons, directly or indirectly, reached an agreement to devise and execute a scheme to defraud"; (2) "the defendant knew the unlawful purpose of the agreement;" and (3) "the defendant joined in the agreement willfully, that is, with the intent to further the unlawful purpose."

Ford does not dispute that there was a conspiracy to commit wire fraud; instead, she contends that she did not knowingly participate in it. The defense's position at trial was that Ford innocently followed the instructions from Harris and Houston. Ford contends that her role was to process documents that were approved and signed by other individuals and send them to the lender. Upon receipt of the documents, the lender wired funds to the title company pursuant to the settlement statement.

Accordingly, the issue is whether the evidence is sufficient to show that Ford was aware of the misrepresentations and misinformation she submitted to the lenders. At trial, Harris, Ford's codefendant, testified that he:

conspired with Ms. Ford. Her role was not as far as getting the process going with the mortgage company. Her role was with the title, disbursing the funds. That's what I conspired with her, as far as ... the title stuff. As far as the money, the transfer, the wire coming back, how the money was being disbursed.

Harris also testified that Ford did "whatever she had to do as far as being a closer to manipulate the [settlement statement] to make it go smoothly." As Ford admits, Harris's testimony also indicated that Ford knew to pay Harris and Houston from the lenders' funds for services that had not been performed on the houses. He also testified that on one occasion he failed to bring a cashier's check for the earnest money to a closing, and Ford "just like made one on the computer and faxed it to the lender." Harris testified that Ford was aware that some of the buyers were fraudulently claiming in a certificate of occupancy that the home would be a primary residence.

Armstead testified that she did not meet Ford until the closing that precipitated Ford's arrest. Armstead further testified that she believed that Ford "knew more about what was going on." Armstead came to this conclusion based on the conversation during the closing, "the looks exchanged between the two [Harris and Ford]" and "the fact that [Harris] had said that [Ford] worked with him and she was cool." During Armstead's closing, although Armstead told Ford that her social security number was incorrect, Ford did not stop the closing in accordance with the lender's rules. Instead, Ford instructed Armstead to correct the number and continue to sign the forms.

Additionally, Special Agent Vincent Edwards testified that he monitored the audio of the closing that culminated in Ford's arrest. He testified that when he interrupted the closing, he inquired of each person what their purpose was at the closing. Ford responded that she was representing the builder. To the contrary, Ford was employed by AmeriTrust Title. We have previously recognized that lying to agents is evidence of guilty knowledge. United States v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir.1989).

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