United States v. Alexander

• Decision Date: 14 May 2012
• Docket Number: No. 11–2069.,11–2069.
• Citation: 679 F.3d 721
• Parties: UNITED STATES of America, Appellee, v. Meggan ALEXANDER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

679 F.3d 721

UNITED STATES of America, Appellee,

v.Meggan ALEXANDER, Appellant.

No. 11–2069.

United States Court of Appeals,

Eighth Circuit.

Submitted: Dec. 16, 2011.

Filed: May 14, 2012.

Webb L. Wassmer, argued, Cedar Rapids, IA, for appellant.

Rebecca Goodgame Ebinger, USA, argued, Cedar Rapids, IA, for appellee.

Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Following a jury trial, Appellant Meggan Alexander was convicted of one count of knowingly making false statements in connection with a loan offered for insurance by the Department of Housing and Urban Development (HUD), in violation of 18 U.S.C. § 1010, and three counts of knowingly making false statements for the purpose of influencing a financial institution insured by the Federal Deposit Insurance Corporation (FDIC), in violation of 18 U.S.C. § 1014. Alexander appeals, raising a number of challenges to her convictions and sentence. Pursuant to the following analysis, we conclude that the government failed to present sufficient evidence to support the jurisdictional element as to the three counts under section 1014. Alexander's convictions as to these counts are therefore vacated. We affirm Alexander's conviction under section 1010. We remand the case for resentencing.

I. Background

In early 2007, Alexander began the process of buying a home with a HUD-insured mortgage from Bank of America, N.A. To that end, Alexander met with a loan officer, Kimberly Maas, who assisted Alexander in preparing a universal residential loan application. In the application, Alexander is listed as being employed at Comprehensive Systems as a nurse. The application also indicates no outstanding judgments against Alexander.

However, Alexander quit her employment with Comprehensive Systems on February 26, 2007. After that date, Alexander was not employed in a nursing capacity with any employer. Alexander also had an outstanding judgment against her for approximately $1,600 arising from a conviction for shoplifting.

On April 2, 2007, Alexander attended a home closing at a branch location of Bank of America located in Mason City, Iowa. At the closing, Alexander signed the uniform residential loan application prepared by Maas and that lists Bank of America, N.A. as the mortgage lender. The application stated Alexander was employed at Comprehensive Systems and that she had no outstanding judgments against her. A closing agent, Jamie Hejlik, instructed Alexander to review the application to make sure it was accurate. Alexander looked through the document, made no corrections, and initialed and signed as instructed.

After securing a mortgage and moving into her home, Alexander failed to make payments on the mortgage. Alexander and her husband sent two hardship letters seeking to forestall foreclosure. In the first letter, dated September 17, 2007, Alexander represented that she was forced to quit her nursing position in June 2007 because of an unpaid traffic ticket that disallowed her from driving to work. In the second letter, dated June 23, 2008, Alexander represented that “[j]ust months after moving in,” the kitchen ceiling collapsed from a hidden leak in the upstairs bathroom, making visible “large amounts of black and white mold.” Alexander stated that she quit her job as a nurse at that time, apparently to deal with the condition of the house. Bank of America, successor in interest to Bank of America, N.A., acquired title to the house through foreclosure proceedings and then transferred title to HUD.

In September 2010, a grand jury returned a second superseding indictment charging Alexander with five offenses relating to her mortgage. The charges included one count of knowingly making false statements in connection with a loan offered for insurance by HUD, in violation of 18 U.S.C. § 1010 (Count 1), and four counts of knowingly making false statements for the purpose of influencing “Bank of America,” a financial institution insured by the FDIC, in violation of 18 U.S.C. § 1014 (Counts 2–5).

The jury found Alexander guilty of Counts 1, 2, 4, and 5. Alexander filed a motion for a new trial and a motion for a judgment of acquittal. The district court denied both motions and sentenced Alexander to 24 months of imprisonment as to each of the counts, with the terms of imprisonment to run concurrently. In addition, the district court imposed a one-year term of supervised release as to Count 1, and a five-year term of supervised release as to each of Counts 2, 4, 5, with the terms of supervised release to run concurrently. The court also imposed a $400 special assessment and ordered Alexander to pay $113,113.68 in restitution.

II. Analysis

In her appeal, Alexander raises a number of arguments to challenge her convictionsand sentence. First, she argues the government failed to present sufficient evidence to meet the jurisdictional element as to Counts 2, 4, and 5. Second, she argues there was insufficient evidence she knowingly lied on her loan application. Third, she claims the district court erred in its determination as to the amount of loss. Finally, Alexander asserts the district court erred in excluding evidence that she rejected a plea deal. We address each claim in turn.

A. Convictions under 18 U.S.C. § 1014

Alexander first challenges the sufficiency of the evidence for her convictions on Counts 2, 4, and 5 brought pursuant to 18 U.S.C. § 1014. She argues the government failed to present sufficient proof of FDIC insurance of Bank of America, N.A., the bank that financed her mortgage, and Bank of America Mortgage, the entity that received her two fraudulent hardship letters. “We review sufficiency challenges de novo, ‘viewing the evidence in the light most favorable to the verdict, accepting all reasonable inferences that support the verdict, and reversing only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.’ ” United States v. Reaves, 649 F.3d 862, 868 (8th Cir.2011) (citation omitted).

The counts in the indictment are based on distinct representations made or adopted by Alexander in order to secure and maintain the mortgage. Count 2 is based on the false statements included in the universal residential loan application indicating that Alexander was then currently employed by Comprehensive Systems and that there were no outstanding judgment against her. Counts 4 and 5 are based on Alexander's false representations in her two hardship letters from September 2007 and June 2008 that she was employed at the time she secured her mortgage and that she only ceased work months after moving into the home.

To sustain a conviction under section 1014, the government was required to prove that Alexander knowingly made a false statement to an FDIC-insured institution with the intent to influence the institution's actions. See United States v. Jenkins, 210 F.3d 884, 886 (8th Cir.2000).¹ Alexander's false statement need not have been made directly to the FDIC-insured institution so long as Alexander made the statement knowing it would reach a financial institution. See United States v. Bellucci, 995 F.2d 157, 159 (9th Cir.1993) (per curiam). A lending institution's FDIC-insured status is an essential substantive and jurisdictional element for a charge under section 1014 and must be proven beyond a reasonable doubt. United States v. Platenburg, 657 F.2d 797, 799 (5th Cir.1981); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); United States v. White, 882 F.2d 250, 253 (7th Cir.1989) (recognizing “there is no (or only the most attenuated)” federal interest in protecting affiliates of FDIC-insured bank where funds of the FDIC-insured entity are not at risk).

Alexander concedes she agreed to a stipulation that provided that Bank of America and its branch location in Mason City, Iowa, where she signed her loan application documents, were FDIC insured. The stipulation definitively established that Bank of America was FDIC insured. See United States v. Harris, 344 F.3d 803, 805 (8th Cir.2003) (per curiam) (finding stipulation conclusively established defendant's status as a felon). However, Bank of America, N.A. is the entity listed on the application as the lending corporation. Therefore, in order to satisfy the jurisdictional element for purposes of section 1014, the government could demonstrate either (1) that Bank of America, N.A. was FDIC insured, or (2) that Bank of America was Bank of America N.A.'s alter ego so that Bank of America's FDIC-insured status was implicated in the case.²See United States v. Walsh, 75 F.3d 1, 9 (1st Cir.1996) (mortgage fraud perpetrated against subsidiary loan company that was not FDIC insured still violates 18 U.S.C. § 1344 where fraud perpetrated against the subsidiary was “effectively a fraud” against FDIC-insured parent company that was “practically an alter ego” of its subsidiary).

Alexander is correct that there is no evidence in the record to show that—absent a connection to Bank of America—Bank of America, N.A. or Bank of America Mortgage were independently FDIC insured. The only evidence of FDIC insurance was the stipulation signed by Alexander, which failed to include any mention of Bank of America, N.A. or Bank of America Mortgage.

As a result, our review turns to whether there was sufficient evidence to prove that Bank of America, N.A. and Bank of America Mortgage were alter egos of Bank of America so that Bank of America's FDIC-insured status extended to them. This is familiar territory for the government, as it rested on this “same entity” theory at trial. During their testimony, bank employees and other witnesses involved in the loan process used the terms “Bank of America,” “Bank of America, N.A.,” and “Bank of America Mortgage” interchangeably....