United States v. Thomas

• Decision Date: 02 July 2015
• Docket Number: No. 14–1599.,14–1599.
• Citation: 791 F.3d 889
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Brandy Marie THOMAS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

791 F.3d 889

UNITED STATES of America, Plaintiff–Appellee

v.Brandy Marie THOMAS, Defendant–Appellant.

No. 14–1599.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2015.

Filed: July 2, 2015.

Nicki Nicolo, North Little Rock, AR, for appellant.

Jana K. Harris, Cameron C. McCree, Asst. U.S. Attys., Little Rock, AR (Christopher R. Thyer, U.S. Atty., on the brief), for appellee.

Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL,¹ District Judge.

Opinion

SHEPHERD, Circuit Judge.

Brandy Thomas was convicted, after a jury trial, of four counts of wire fraud based on a scheme she perpetrated to defraud mortgage lenders by submitting false income information on loan applications. The district court² sentenced Thomas to 48 months imprisonment followed by 18 months supervised release and ordered her to pay restitution. Thomas appeals, arguing the district court erred in two of its evidentiary rulings, in the instructions it gave to the jury, in allowing the government to constructively amend the indictment, and in issuing an Allen³ charge to the jury and polling individual jurors. We affirm.

I.

A grand jury indicted Brandy Thomas on four counts of wire fraud for allegedly engaging in a scheme to defraud mortgage lenders between June 2006 and December 2006. The government alleged that Thomas defrauded lenders by submitting false income information on loan applications in relation to the purchase of three properties and the refinancing of one property, specifically alleging Thomas overstated her income, provided fictitious rental agreements to support the overstated income amount, and failed to list a mortgage debt on loan documents.

II.

We first consider whether the district court erred in the instruction it gave the jury regarding the “intent to harm” element of wire fraud. Before submitting the case to the jury, the district court considered proposed jury instructions from both Thomas and the government concerning the “intent to defraud” element of the wire fraud offense. The district court rejected Thomas's proposed instruction and instead used an instruction that closely followed the Eighth Circuit Model Jury Instruction for mail fraud. Thomas asserts that the district court erred in refusing to instruct the jury that Thomas must have contemplated, at the very least, some actual harm to another in order to convict her of wire fraud. We review a district court's jury instructions for abuse of discretion. Boesing v. Spiess, 540 F.3d 886, 890 (8th Cir.2008).

Securing a conviction for wire fraud requires the government to prove that: (1) the defendant devised or joined a scheme to defraud, (2) the defendant intended to defraud, (3) it was reasonably foreseeable that interstate wire communications would be used, and (4) wire communications were, in fact, used. 18 U.S.C. § 1343 ; United States v. Johnson, 450 F.3d 366, 374 (8th Cir.2006). Regarding the “intent to defraud” element, “the [government] is not required to show actual loss or harm to the victims of the fraud in order to prove wire fraud [ ]. Rather, the government merely needs to show that the accused intended to defraud his victim and that his or her communications were reasonably calculated to deceive persons of ordinary prudence and comprehension.” United States v. Louper–Morris, 672 F.3d 539, 556 (8th Cir.2012) (internal quotation marks and citations omitted).

Thomas argues that the district court should have relied upon United States v. Jain, 93 F.3d 436 (8th Cir.1996), in issuing its instruction on the “intent to defraud” element. In Jain, our court reversed a defendant's conviction for mail fraud when the government failed to provide any evidence that the victims suffered tangible harm or to otherwise prove the defendant's fraudulent intent. Id. at 441–42. Thomas asserts that this case requires the government to prove an intent to cause harm, rather than a simple intent to defraud. See id. at 441. But Jain is an honest-services fraud case that is distinct from the wire fraud charges against Thomas. See id. Thus, Jain is inapplicable, despite Thomas's assertions to the contrary. Here, the district court instructed the jury that “[t]o act with intent to defraud means to act knowingly and with the intent to deceive someone for the purpose of bringing about some financial gain to oneself or another to the detriment of another person.” R. Doc. 108, at 20. This instruction is in accordance with Eighth Circuit law. See Louper–Morris, 672 F.3d at 556. As such, the district court did not abuse its discretion in the instruction it gave the jury regarding the “intent to defraud” element of wire fraud.

III.

We next consider whether the district court erred in allowing the government to introduce evidence of a separate, subsequent scheme in which Thomas attempted to defraud mortgage lenders. Prior to trial, Thomas filed a motion in limine seeking the exclusion, pursuant to Federal Rule of Evidence 404(b), of any testimony relating to her participation in this scheme. The evidence concerned the 2007 purchase of a home by the grandmother of Thomas's child. Thomas served as the real estate agent on the transaction. At trial, the grandmother testified that Thomas encouraged her to falsify her income on loan paperwork to obtain a loan and advised her to produce fake rental agreements to support the falsified income. The district court denied the motion, allowing the testimony as evidence of intent or absence of mistake. Thomas asserts that the district court erred in admitting this evidence because the witness providing this testimony made contradictory statements and the evidence was more prejudicial than probative. We review a district court's admission of Rule 404(b) evidence for abuse of discretion. United States v. Hawkins, 548 F.3d 1143, 1146 (8th Cir.2008). “We construe Rule 404(b) broadly as a rule of inclusion, and we will reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts.” Id. (internal quotation marks omitted).

Under Rule 404(b)(1), “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” But a court may admit evidence of another wrong or act when it is relevant to any issue in the trial other than the defendant's criminal disposition. United States v. Claxton, 276 F.3d 420, 423 (8th Cir.2002). Permissible uses of this evidence include showing motive, opportunity, intent, preparation, plan, knowledge, lack of mistake, identity, or lack of accident. Fed.R.Evid. 404(b)(2). When considering the admissibility of Rule 404(b) evidence for a permissible purpose, a court must determine that the evidence is relevant, is similar in kind and not too remote in time, is sufficiently supported by the evidence, and the potential prejudice does not substantially outweigh the probative value. Hawkins, 548 F.3d at 1146–47.

The government used this evidence for the permissible purposes of showing intent and lack of mistake rather than the impermissible purpose of propensity. The evidence also meets the other requirements for admissibility. First, the evidence is relevant because it helps prove a consequential issue in the case: whether Thomas intended to act fraudulently. See Fed.R.Evid. 401 (“Evidence is relevant if [ ] it has any tendency to make a fact more or less probable than it would be without the evidence; and [ ] the fact is of consequence in determining the action.”). Thomas argued at trial that she did not have the requisite fraudulent intent to be convicted of wire fraud and this evidence helps rebut that argument.

Second, the subsequent fraudulent scheme is similar in kind and not too remote in time to be admitted. The schemes are similar because they both involve the misrepresentation of income to fraudulently obtain loans. The subsequent scheme is not too remote in time because the conduct for which Thomas was charged occurred in 2006 and the transaction at issue here occurred in 2007. No definitive rule governs how close to the charged event another wrong or act must be and courts should apply a reasonableness standard on a case-by-case basis. See United States v. Thomas, 398 F.3d 1058, 1063 (8th Cir.2005). A one-year period between schemes satisfies this reasonableness standard. See, e.g., United States v. Wint, 974 F.2d 961, 967 (8th Cir.1992) (holding that a five-year lapse between prior act and charged crime was not too remote in time to be admitted under Rule 404(b) ); see also United States v. Franklin, 250 F.3d 653, 659 (8th Cir.2001) (“The closer in time to the crime charged, the more likely the evidence is to be admissible; but we have approved the admission of other crimes' evidence for acts committed up to 13 years before the crime charged.”).

Third, sufficient evidence exists to allow the jury to find that the subsequent scheme occurred. Thomas argues, in part, that the district court should not have admitted the evidence because the grandmother made inconsistent statements, namely telling Thomas's then-attorney that the mortgage company, not Thomas, had encouraged her to submit false documents. But the district court should not make credibility determinations when deciding whether to admit evidence under Rule 404(b). See Huddleston v. United States, 485 U.S. 681, 687–90, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (explaining that a district court should not engage in assessing a witness's credibility when making an admissibility determination under Rule 404(b) ).

Finally, the risk of prejudice does not substantially outweigh the probative value of the evidence of the subsequent fraudulent scheme. We give the district court's determination that the evidence was not unfairly prejudicial great deference, and nothing in the record requires us to overturn this finding. See United States v. Ruiz, 412 F.3d 871, 881 (...