U.S. v. Brockenborrugh, No. 08-3016.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtGriffith
Citation575 F.3d 726
Docket NumberNo. 08-3016.
Decision Date07 August 2009
PartiesUNITED STATES of America, Appellee v. Nelson BROCKENBORRUGH, Appellant.
575 F.3d 726
UNITED STATES of America, Appellee
v.
Nelson BROCKENBORRUGH, Appellant.
No. 08-3016.
United States Court of Appeals, District of Columbia Circuit.
Argued April 9, 2009.
Decided August 7, 2009.

[575 F.3d 730]

Appeal from the United States District Court for the District of Columbia, (No. 07cr00078-02).

Richard K. Gilbert argued the cause and filed the briefs, for appellant.

Florence Y. Pan, Assistant U.S. Attorney, argued the cause, for appellee. On the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III, Elizabeth Trosman, and Patricia A. Heffernan, Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, and ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Opinion concurring in part and dissenting in part filed by Circuit Judge ROGERS.

GRIFFITH, Circuit Judge:


A jury found Nelson Brockenborrugh guilty of wire fraud and conspiracy to commit wire fraud, and the district court sentenced him to 46 months in prison. On appeal, Brockenborrugh contends that the evidence produced at trial was insufficient to support his convictions and that a number of the district court's rulings were erroneous and sufficiently prejudicial to warrant a new trial. He also argues that the district court made three errors in calculating his sentence. For the reasons set forth below, we reject these arguments and affirm Brockenborrugh's convictions and sentence.

I.
A.

Because Brockenborrugh's appeal relies in large measure on an argument regarding the sufficiency of the evidence presented at trial, we must recount that evidence in some detail. When James Roy died on October 13, 2004, he left to his heirs a multiunit residential property located at 1133 6th Street N.W., Washington, D.C. Although the condition of the property deteriorated after Roy's death, its location a block from the city's new convention center attracted the interest of a number of developers. Named as the executor of her father's estate, Katrina Robinson had to decide what to do with the rundown property. Robinson first met Brockenborrugh while visiting the property in April 2005. According to Robinson, Brockenborrugh, a retired police officer who worked as a Court Security Officer (CSO) at the D.C. Superior Court, and his realtor, Denise McLeod, were at the site and asked her about buying the property. During this conversation, McLeod told Robinson she was an employee of the D.C. government, introduced Brockenborrugh as a U.S. Marshal, and said, "[W]e have been watching your property, because we have been getting several complaints ... about the things ... going on there." Trial Tr. 189-90 (Oct. 23, 2007). Brockenborrugh told Robinson that he was "working with" the U.S. Marshals, Trial Tr. 44 (Oct. 24, 2007), showed her a gold-plated badge, and stated that he was a retired police officer. Robinson told them that once she was officially appointed executor, she would consult with her family and then decide whether to sell. The three exchanged phone numbers, and Robinson told Brockenborrugh and McLeod to contact her lawyer, David Scull, if they remained interested in buying the property. On June 21, 2005, McLeod called Scull. She told him

575 F.3d 731

that "U.S. Marshal Brockenborrugh wanted to buy the property" and could assist in solving the problem created by squatters who had moved into its abandoned units. Trial Tr. 131 (Oct. 18, 2007). McLeod also advised Scull that she was "monitoring every aspect" of the property. Id. at 132.

On September 8, 2005, McLeod filed with the District of Columbia Recorder of Deeds a fraudulent deed that purported to convey the property from James Roy to her for $10,000. Because the deed reflected a nominal sale price, the District required an additional payment of $7610, which included a transfer tax and recording fee based on the assessed value of the property. Two other people helped McLeod file the deed. Cynthia Russell "witnessed" James Roy's signature (though, of course, Roy did not posthumously sign the deed). LaShawn Lewis notarized the deed in return for $250. (Both pleaded guilty to charges related to these actions.) A week later, Brockenborrugh wrote McLeod a check for $8804, approximately one half of the total purchase price, and noted on the memo line, "For my half of 1133 6th St NW." App. at 49. At trial, Brockenborrugh testified he wrote the check because he "just wanted to make sure that [he] was included in to what [he] thought was a legal transaction." Trial Tr. 88-89 (Oct. 25, 2007). He had asked McLeod, "[H]ow much do I owe you?," id. at 155, and she responded, "[R]ight now I don't know what the total price is going to be, but for now I have had to pay the water and tax bill ... [s]o this is what the price is," id. at 155-56. McLeod subsequently agreed to sell the property to developer Kenneth Silbert for $300,000. When Silbert's lawyer conducted a title search, he uncovered the fraudulent deed. Silbert instructed him not to tell Robinson.

On October 6, 2005, Metropolitan Police Department Officer Israel James was called to the property, where he found Brockenborrugh and McLeod. Brockenborrugh was wearing his CSO uniform and may also have been wearing his CSO security badge. According to Officer James, the two claimed they had "authority" over the property and complained that squatters needed to be removed. Trial Tr. 33-34 (Oct. 22, 2007). Brockenborrugh does not deny he was at the property but claims that only McLeod talked to the police. Two investigators from the fire department also responded at the scene. Because the squatters had been poaching electricity and creating a fire hazard, they declared the property uninhabitable and ordered the squatters to leave. Later that day, a bystander called Robinson to report that McLeod was hanging around the property saying she was the new owner. The caller then passed the phone to McLeod, who told Robinson she "was getting [the squatters] out" and would "contact her later." Trial Tr. 202 (Oct. 23, 2007). Wondering why McLeod was at the property, Robinson called her lawyer, Scull. Scull ran his own title search, discovered the fraudulent deed assigning the property to McLeod, and, with the encouragement of Robinson, called the FBI.

On October 19, 2005, Robinson, wearing an FBI wire, met with Brockenborrugh, McLeod, Silbert, and Nathan Carter, who is alleged to be the person that would finance any purchase of the property. During their conversation with Robinson, members of the group made representations that implied the property was worthless, and Brockenborrugh claimed responsibility for the removal of the squatters. As a retired police officer, he said that he had asked a few current officers whom he knew to keep an eye on the property. This increased protection, he boasted, had prevented the squatters from reentering and ended the neighbors' complaints about the property's condition. Brockenborrugh

575 F.3d 732

added that one of the squatters had seen him at the courthouse and said, "[O]h you're a real marshal." App. at 105. Robinson interjected, "Oh he didn't think you were?" Id. at 106. "He didn't believe it," confirmed Brockenborrugh. Id. Brockenborrugh testified that he did not correct the occupant because the comment "didn't really phase [sic][him]." Trial Tr. 174 (Oct. 25, 2007).

Brockenborrugh, McLeod, and Carter also told Robinson that she faced a number of risks by retaining the property. For example, they warned her that the squatters might burn down the building. Brockenborrugh said the situation was "really, really serious" and that each passing day was like "spinning the roulette wheel." App. at 117. McLeod told Robinson that the squatters could sue her because the building contained asbestos that was making them ill. She also warned Robinson that the city could file a "wrongful housing" suit and assess a fine on the property but had not yet done so because of Brockenborrugh's influence. Id. at 118-19.

Robinson said that her family wanted $825,000 for the property. McLeod rejected that price out of hand. She argued that the building itself was worth nothing and that the land was worth only $99,000 to $130,000. The group offered Robinson $130,000 and presented her with a contract. Robinson asked for more information about all the buyers except for Brockenborrugh. She stated that she "[knew] about Mr. U.S. Marshall [sic]." Id. at 137. Brockenborrugh urged Robinson to act quickly, adding that the police would check on the property so long as he was "still in the mix." Id. at 143. If he did not "do his part," they would stop. Id. at 144.

Two days later, McLeod faxed to Robinson a document that purported to be an official District of Columbia "Property Detail," which contained fictitious assessments of the property. The document was fraudulent in several respects, and the value of the property's improvements was listed as "$0.00 (inhabitable) [sic]," id. at 50-51. McLeod later faxed a revised contract along with a letter assuring the Roy heirs that the only issues revealed by a title search were outstanding property taxes and water bills. Obviously, the letter did not mention the fraudulent deed.

The FBI convened a second meeting with the group, during which an undercover agent posed as "James Roy, Jr." Also present were Robinson, another undercover agent, McLeod, Carter, and Silbert. McLeod explained that Brockenborrugh could not make the meeting because, as "a U.S. Marshall [sic]," he was "assigned to a judge" that day. R. Material Tab 3, 3. The agent posing as James Roy, Jr., stated that he wanted $200,000 for the property. The parties eventually agreed to a purchase price of $165,000. At that point, Brockenborrugh joined the meeting via speakerphone. McLeod told him that "James Roy" wanted $165,000 and asked, "[C]an we go forward with that?" Id. at 32. Brockenborrugh replied, "I'll go with that." Id. at 33.

B.

By an indictment filed March 22, 2007, the...

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32 practice notes
  • Latif v. Obama, No. 10–5319.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 27, 2012
    ...own sentence). And since “ de novo factfinding is inconsistent with [an appellate court's] proper role,” United States v. Brockenborrugh, 575 F.3d 726, 746 (D.C.Cir.2009), we are at an impasse. In sum, the district court's failure to resolve the key question of [the lead witness's] credibil......
  • United States v. Borda, No. 13-3074
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 21, 2017
    ...decision unless it has a "definite 848 F.3d 1070and firm conviction that a mistake has been committed." United States v. Brockenborrugh , 575 F.3d 726, 738 (D.C. Cir. 2009) (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ). The Court further ......
  • Latif v. Obama, No. 10–5319.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 14, 2011
    ...own sentence). And since “ de novo factfinding is inconsistent with [an appellate court's] proper role,” United States v. Brockenborrugh, 575 F.3d 726, 746 (D.C.Cir.2009), we are at an impasse. In sum, the district court's failure to resolve the key question of [the lead witness's] credibil......
  • United States v. Sitzmann, Criminal No. 08–0242 PLF
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 18, 2014
    ...members of that conspiracy.’ ” United States v. Loza, 763 F.Supp.2d 108, 111–12 (D.D.C.2011) (quoting United States v. Brockenborrugh, 575 F.3d 726, 735 (D.C.Cir.2009) ). The court must also find that the statement in question was “made in furtherance of the common goal” of the conspiracy. ......
  • Request a trial to view additional results
32 cases
  • Latif v. Obama, No. 10–5319.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 27, 2012
    ...own sentence). And since “ de novo factfinding is inconsistent with [an appellate court's] proper role,” United States v. Brockenborrugh, 575 F.3d 726, 746 (D.C.Cir.2009), we are at an impasse. In sum, the district court's failure to resolve the key question of [the lead witness's] credibil......
  • United States v. Borda, No. 13-3074
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 21, 2017
    ...decision unless it has a "definite 848 F.3d 1070and firm conviction that a mistake has been committed." United States v. Brockenborrugh , 575 F.3d 726, 738 (D.C. Cir. 2009) (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ). The Court further ......
  • Latif v. Obama, No. 10–5319.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 14, 2011
    ...own sentence). And since “ de novo factfinding is inconsistent with [an appellate court's] proper role,” United States v. Brockenborrugh, 575 F.3d 726, 746 (D.C.Cir.2009), we are at an impasse. In sum, the district court's failure to resolve the key question of [the lead witness's] credibil......
  • United States v. Sitzmann, Criminal No. 08–0242 PLF
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 18, 2014
    ...members of that conspiracy.’ ” United States v. Loza, 763 F.Supp.2d 108, 111–12 (D.D.C.2011) (quoting United States v. Brockenborrugh, 575 F.3d 726, 735 (D.C.Cir.2009) ). The court must also find that the statement in question was “made in furtherance of the common goal” of the conspiracy. ......
  • Request a trial to view additional results

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