769 F.3d 372 (6th Cir. 2014), 12-2594, United States v. Rogers
|Citation:||769 F.3d 372|
|Opinion Judge:||MARTHA CRAIG DAUGHTREY, Circuit Judge.|
|Party Name:||UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JONAS ROGERS, Defendant-Appellant|
|Attorney:||ON BRIEF: Timothy J. Bicknell, Cincinnati, Ohio, for Appellant. Abed Hammoud, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.|
|Judge Panel:||Before: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.|
|Case Date:||September 08, 2014|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Filed [*] September 8, 2014
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:11-cr-20749-001--Lawrence P. Zatkoff, District Judge.
Defendant Jonas Rogers, having been convicted of money laundering and conspiracy to commit wire fraud, raises multiple challenges both to those convictions and to the concurrent 78-month prison sentences imposed by the district court. Specifically, Rogers argues that the district court: (1) should have granted his motion for a judgment of acquittal based on insufficient evidence of fraud; (2) erred in failing to issue subpoenas for three out-of-state witnesses whose appearances at trial Rogers wished to secure; (3) failed to instruct the jury properly on the elements of the offense of conspiracy to commit wire fraud; (4) erred in enhancing Rogers's offense level for serving as the organizer, leader, manager, or supervisor of criminal activity; (5) improperly enhanced Rogers's offense level for possession or use of an authentication feature; and (6) imposed a sentence at the high end of the applicable Sentencing Guidelines range that was procedurally and substantively unreasonable. We find each of these issues to be without merit and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early May 2007, Margaret Kryvicky, the secretary of the Woodlands Estates
Homeowners Association in Bloomfield Hills, Michigan, received a check from a title insurance agency for $3,420 as payment for delinquent association fees due from the owner of property located at 5328 Woodlands Estates Drive. Because the check was issued by a title company, Kryvicky assumed that the property for which the dues were paid had been sold. She thus contacted Dr. Mark Fireman, the person whose name was listed on the check stub, to inform him of deed restrictions and by-laws that applied to the newly acquired property. When she did so, however, Fireman informed her that he had " never bought a house in Woodlands." Concluding that someone had stolen his identity in order to purchase the home, Fireman then contacted the Huntington Woods Police Department to report the impersonation. Eventually, the local police transferred the matter to the Federal Bureau of Investigation (FBI), and that agency's investigation uncovered the facts behind the home purchase.
According to Valeria Bracken, an individual identified during the investigation, she and her " God brother," Jonas Rogers, collaborated on real-estate investment projects in which the two close friends would purchase property, rent it to other individuals, and then profit from the rental income. Bracken testified that Rogers would identify the target properties, select a mortgage company, and negotiate a price for the property before using Bracken's name and credit-worthiness to purchase the home. Eventually, Bracken and the defendant sought to purchase the home located at 5328 Woodlands Estates Drive in Bloomfield Hills.
Although the property was listed for sale at $1,100,000, Rogers negotiated a sale price of $799,000 and, without Bracken's input, selected a mortgage company willing to finance Bracken's purchase of the home, despite the fact that Bracken had annual employment income of only $40,000 as a supportive-services case manager for the Arab-American and Chaldean Council. At the designated time, Rogers then drove Bracken to Decision One Mortgage Company for the closing where Bracken signed two Uniform Residential Loan Application forms, one for a $639,200 mortgage and the other for a $159,800 mortgage. Even though Bracken had never spoken to or been questioned by a mortgage official concerning her income or her employment, both applications indicated that she was employed not only by the Arab- American and Chaldean Council, but also by 3 Marketeers Production, a company of which Bracken had never heard. Both applications listed Bracken's monthly employment and rental income at $22,809 and indicated that she had two separate bank accounts with balances of $20,000 each. Although Bracken had not supplied any of the blatantly inaccurate information, she signed the loan applications and settlement statement on September 8, 2006, in order " [t]o get the deal done." Relying on the information " provided" by Bracken, Decision One Mortgage Company then wired the requisite funds to a Michigan escrow account from Decision One's headquarters in Charlotte, North Carolina.
At the closing, the sellers transferred to Bracken a check for $11,000, which she then gave to the defendant. Moreover, although Bracken was listed as the purchaser of the house at 5328 Woodlands Estates Drive, she never moved into the dwelling. Instead, defendant Rogers took up residence there in order to " fix[ ] up the property."
Not surprisingly, given Bracken's actual annual income, she was unable to make the mortgage payments on the house or to keep current on the monthly homeowners-association fees on the property. According
to Bracken, however, Rogers claimed that he fortuitously was contacted by numerous people--including a Dr. Mark J. Fireman, Jr.--interested in purchasing the property, even though the house was never listed for sale, even though access to the neighborhood was restricted by a guarded gate, and even though " there was never a For Sale sign at the house." Rogers then made all the necessary arrangements for Bracken to sell the property to Fireman, purportedly negotiating the sale price and then selecting Vanguard Title Company as the closing agent. Indeed, when Bracken arrived at Vanguard on April 30, 2007, for the closing, a settlement statement for the sale of the property by Bracken to Fireman for $1,100,000, exclusive of settlement charges and taxes, had already been prepared.
On that closing day, all signs pointed to the prospect that Rogers and Bracken would profit handsomely from their scheme. The identified buyer, Mark J. Fireman, Jr.1, was to bring with him to the closing a downpayment check for $122,814.67, which, together with funds provided by Credit Suisse Financial Corporation of New Jersey, would lead to issuance of a settlement check to Bracken in the amount of $185,600.79. However, the man who identified himself as Fireman did not bring the $122,000 check with him. Nevertheless, the title company president claimed that " the buyer and the seller had worked things out and were going to take care of settling up outside of the closing." Thus, Vanguard simply provided Bracken with a check for $62,786.12, the difference between the amount she was scheduled to receive and the amount of the downpayment check that the buyer failed to provide.
Three days later, on May 3, 2007, at the direction of Rogers, Bracken deposited the closing check into her personal account at National City Bank. Almost immediately, again at Rogers's direction, she began writing checks to herself, to " cash," and to Ernestine Rogers, the defendant's mother. Between May 7, 2007, and May 17, 2007, Bracken wrote the following checks from her account:
May 7, 2007 -- check 2947 to Ernestine Rogers for $4,900;
May 14, 2007 -- check 2948 to Ernestine Rogers for $6,000; May 14, 2007 -- check 2950 to Valeria D. Bracken for $20,000; May 16, 2007 -- check 2952 to Ernestine Rogers for $7,000; May 16, 2007 -- check 2953 to Ernestine Rogers for $3,000; May 17, 2007 -- check 2954 to Cash for $21,766.
Bracken testified at trial that four of the checks were made out to Rogers's mother because Rogers himself did not have a bank account. Each of those checks was handed directly to Rogers to give to his mother to cash. Rogers also directed Bracken to cash the two checks for $20,000 and $21,766 and hand the proceeds directly to him. Thus, by May 17, 2007, all but $120.12 of the $62,786.12 issued to Bracken at the closing of the sale of the Woodlands Estates property had been delivered to Rogers and converted to cash.
Based upon this information, the government charged Rogers with: (1) conspiring " with others known and unknown" to commit wire fraud; (2) laundering the proceeds
of that unlawful activity; and (3) aiding and abetting the theft of Mark Fireman's identification. After a multi-day trial, the jury convicted Rogers of conspiracy to commit wire fraud and of money laundering, but acquitted him of the aggravated-identity-theft charge.
The district court sentenced Rogers to concurrent 78-month prison terms to be followed by 36 months of supervised release, and ordered him to pay $535,000 in restitution to Credit Suisse and $134,500 in restitution to the real Mark Jay Fireman, whose identity was stolen in the perpetration of the charged criminal activities. Rogers now appeals, challenging aspects of both his conviction and his sentence.
I. Denial of Rule 29 Motion for Acquittal
Rogers first takes issue with the district court's denial of his motion for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. We review de novo the denial of such a motion. See, e.g., United States v. Ramirez, 635 F.3d 249, 255 (6th Cir. 2011).
Pursuant to Rule 29(a), a " court on the defendant's motion must enter a judgment of...
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