United States v. Rosenbaum, 101315 FED6, 14-2219

Docket Nº:14-2219
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHERI ROSENBAUM, Defendant-Appellant.
Judge Panel:BEFORE: GIBBONS and McKEAGUE, Circuit Judges; ANDERSON, District Judge.
Case Date:October 13, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

SHERI ROSENBAUM, Defendant-Appellant.

No. 14-2219

United States Court of Appeals, Sixth Circuit

October 13, 2015

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: GIBBONS and McKEAGUE, Circuit Judges; ANDERSON, District Judge. [*]

OPINION

McKEAGUE, Circuit Judge.

Sheri Rosenbaum was part of a fraudulent scheme to obtain mortgage loans by making misrepresentations on loan applications and submitting fraudulent documents to banks. In addition, she submitted fraudulent credit card applications in her son's name and used those cards to rack up thousands of dollars in debt. Rosenbaum was subsequently convicted on four counts of bank fraud and one count of aggravated identity theft. On appeal, Rosenbaum raises several issues regarding her indictment, trial, conviction, and sentence. Each of her arguments is without merit. We affirm.

I

Mortgage Fraud.

Defendant-appellant Sheri Rosenbaum operated as a mortgage broker, submitting loan applications on behalf of borrowers seeking financing. Rosenbaum was compensated directly by lenders when they approved mortgage loans. To increase the likelihood of approval, Rosenbaum knowingly submitted loan applications with falsified information on borrowers' employment, income, and assets. In some cases, she created counterfeit documents to support her misrepresentations.

Rosenbaum submitted three fraudulent mortgage loan applications between 2007 and 2008. Around August 2007, she submitted an application on behalf of N.B. to refinance the property located at 4575 Wabeek Forest Dr. in Bloomfield Hills, Michigan for $660, 000. The application represented that N.B. was a doctor making approximately $265, 000 annually. In truth, N.B.'s husband was a doctor, but he died prior to August 2007. To support the application, Rosenbaum submitted counterfeit W-2 forms switching N.B.'s income with her late husband's. N.B. was unable to make the mortgage payments and defaulted on the loan. After foreclosure recouped $310, 000, the bank suffered a $350, 000 loss.

Between March and June 2008, Rosenbaum submitted another fraudulent application on behalf of D.R. for a $261, 000 loan to purchase the property located at 71 Winder Street in Detroit, Michigan. The application stated D.R. was employed by NuLise Properties and made approximately $115, 000 annually, when in fact D.R. was employed by the State of Michigan and made less than $50, 000 per year. To support the application, Rosenbaum submitted a counterfeit paycheck and verification of employment. Ultimately, the loan application was not approved.

Finally, in April 2008, Rosenbaum submitted a fraudulent application with Ricardo Del Valle1 to obtain a mortgage loan in the name of B.W. for the property located at 1491 Fairway, Birmingham, Michigan. Rosenbaum again submitted false documents, including a fraudulent check and bank account statement. A $279, 000 loan was approved on April 15, 2008, but B.W. was unable to make the mortgage payments. However, the bank agreed to a loan modification instead of foreclosing and suffered no loss from the loan.

Credit Card Fraud.

In 2005, Rosenbaum submitted two fraudulent credit card applications in the name of her minor son S.F. On May 20, 2005, Rosenbaum applied for an American Express card in S.F.'s name. She used S.F.'s actual name and social security number, but stated his date of birth as August 12, 1967, and also represented that he was employed with an annual income of $280, 000. Rosenbaum's son was born on August 12, 1997, was seven years old at the time, and we think it is safe to assume that he was unemployed. Rosenbaum's fraudulent application was granted, and she obtained a primary card in her son's name and a supplemental card in her own name. Rosenbaum used these cards to make a number of purchases, and American Express eventually closed the account with an unpaid balance of $49, 804.80.

In October 2005, Rosenbaum applied for an additional credit card in her son's name from Capital One Bank. Rosenbaum's application followed the same pattern, using her son's actual name and social security number, but misrepresenting his date of birth and listing his annual income as $160, 000. The application was approved, and Rosenbaum used the card in her son's name to make purchases for her own benefit. Capital One closed the account with no outstanding balance.

Search and Seizure.

The FBI began investigating complaints of mortgage fraud surrounding Rosenbaum and Del Valle in August 2006. FBI Special Agent Brett Leatherman was assigned to the case, and during his investigation he also discovered information about Rosenbaum's credit card fraud. Between February and April 2008, Special Agent Leatherman spoke to four witnesses and served subpoenas on American Express and Capital One Bank regarding Rosenbaum's fraudulent credit card use. Based on these witnesses and conversations with American Express, Leatherman was aware Rosenbaum had taken out credit cards in her son's name and misrepresented her son's date of birth and income on the applications.

Special Agent Leatherman obtained a valid warrant to search Rosenbaum's residence for evidence of mortgage fraud, but the warrant made no mention of credit card fraud. The warrant listed the items to be seized, including "[a]ll mortgage related documents and records, " bank statements, checks, computer passwords and other data security devices, and documents regarding ownership of the searched premises. On July 17, 2008, Leatherman executed the search warrant. While searching Rosenbaum's house, he found American Express and Capital One credit cards in Rosenbaum's son's name sitting out on a table. And, while searching Rosenbaum's purse for mortgage documents and passwords, he found a note indicating Rosenbaum's son was born on August 12, 1967. At that point, Special Agent Leatherman knew he had found evidence of credit card fraud:

So, I was already aware of the credit cards based on my prior investigation. And this particular piece of paper, in my mind, confirmed the fact that these credit cards were, in fact, taken out in his name. I should also say that that was the first day I had ever put eyes on [Rosenbaum's son]. He was at the house at the time of the search warrant and he was clearly under ten years of age . . . . It was immediately apparent to me that that was evidence of criminal activity.

Prior to trial, Rosenbaum moved to suppress the evidence, arguing it was beyond the scope of the warrant. The district court denied the motion, finding the credit cards and note were in plain view and that it was immediately apparent to Special Agent Leatherman they were evidence of credit card fraud.

Indictments.

Rosenbaum was indicted for the first time in the Second Superseding Indictment .2 The indictment charged Rosenbaum with: conspiracy to commit bank fraud relating to the Fairway property (Count One); bank fraud relating to the Wabeek property (Count Three); bank fraud relating to submitting fraudulent credit card applications to American Express and Capital One in her son's name (Count Four); and aggravated identity theft for using her son's identification to commit bank fraud (Count Five). This indictment contained two errors. First, it made one mistaken reference to Capital One instead of American Express in Count Four. Second, although Count Five indicated the identity theft stemmed from fraudulent credit card use in Rosenbaum's son's name, it mistakenly referred to the underlying fraud as being "specified in Count Two of this First Superseding Indictment" instead of Count Four of the Second Superseding Indictment.

The government filed a Fourth Superseding Indictment3 against Rosenbaum on August 1, 2013. The indictment charged Rosenbaum with three counts of bank fraud and aiding and abetting for the Fairway property (Count One), the Winder property (Count Two), and the Wabeek property (Count Three). The indictment also charged Rosenbaum with bank fraud for fraudulent credit card use in her son's name (Count Four) and aggravated identity theft for using her son's identification while committing bank fraud (Count Five). This indictment contained further mistakes. Although the Second Superseding Indictment correctly indicated the Wabeek transaction occurred in or about August 2007, Count Three of the Fourth Superseding Indictment mistakenly referenced April 2008. Count Three also made one stray reference to the "Winder" Loan Package, even though Count Three focused on the Wabeek property. Finally, Count Four still included the mistaken reference to Capital One Bank instead of American Express. However, the government did correct the aggravated identity charge (Count Five) to reference the underlying felony as the bank fraud "in Count Four of this Fourth Superseding Indictment."

Just before trial, the government moved to amend the Fourth Superseding Indictment to correct the...

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