791 F.3d 889 (8th Cir. 2015), 14-1599, United States v. Thomas

Docket Nº:14-1599
Citation:791 F.3d 889
Opinion Judge:SHEPHERD, Circuit Judge.
Party Name:United States of America, Plaintiff - Appellee v. Brandy Marie Thomas, Defendant - Appellant
Attorney:For United States of America, Plaintiff - Appellee: Jana K. Harris, Assistant U.S. Attorney, Cameron Charles McCree, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR. For Brandy Marie Thomas, Defendant - Appellant: Nicki Nicolo, Law Offices of Nicki N...
Judge Panel:Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL,[1] District Judge.
Case Date:July 02, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
SUMMARY

Thomas was convicted 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 court sentenced Thomas to 48 months imprisonment and ordered her to pay restitution. The Eighth Circuit affirmed, upholding evidentiary rulings allowing the government to introduce evidence of a separate,... (see full summary)

 
FREE EXCERPT

Page 889

791 F.3d 889 (8th Cir. 2015)

United States of America, Plaintiff - Appellee

v.

Brandy Marie Thomas, Defendant - Appellant

No. 14-1599

United States Court of Appeals, Eighth Circuit

July 2, 2015

Submitted: March 13, 2015.

Page 890

[Copyrighted Material Omitted]

Page 891

Appeal from United States District Court for the Eastern District of Arkansas - Little Rock.

For United States of America, Plaintiff - Appellee: Jana K. Harris, Assistant U.S. Attorney, Cameron Charles McCree, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Arkansas, Little Rock, AR.

For Brandy Marie Thomas, Defendant - Appellant: Nicki Nicolo, Law Offices of Nicki Nicolo, North Little Rock, AR.

Brandy Marie Thomas, Defendant - Appellant, Pro se, Grand Prairie, TX.

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

OPINION

Page 892

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

Page 893

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. Hunter, 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...

To continue reading

FREE SIGN UP