United States v. Isgar

• Decision Date: 13 January 2014
• Docket Number: No. 11–20516.,11–20516.
• Citation: 739 F.3d 829
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gilbert Barry ISGAR; Vincent Wallace Aldridge; Tori Elyse Aldridge, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

739 F.3d 829

UNITED STATES of America, Plaintiff–Appellee,

v.Gilbert Barry ISGAR; Vincent Wallace Aldridge; Tori Elyse Aldridge, Defendants–Appellants.

No. 11–20516.

United States Court of Appeals,Fifth Circuit.

Jan. 13, 2014.

Eileen K. Wilson (argued), Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

James Scott Sullivan (argued), Esq., San Antonio, TX, Letitia D. Quinones (argued), Quinones & Associates, P.L.L.C., Houston, TX, Fred L. Garrett, II (argued), Garrett Law Firm, Alvin, TX, for Defendants–Appellants.

Vincent Wallace Aldridge Seagoville, TX, pro se.

Appeals from the United States District Court for the Southern District of Texas.

Before OWEN and HAYNES, Circuit Judges, and LEMELLE,^* District Judge.

PRISCILLA R. OWEN, Circuit Judge:

This case arises from a mortgage fraud scheme. At the conclusion of a jury trial, Vincent Wallace Aldridge and Tori Elyse Aldridge (the Aldridges), and Gilbert Barry Isgar (collectively, Defendants) were convicted of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349, aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2 and 1343, conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h), and aiding and abetting money laundering under 18 U.S.C. §§ 2 and 1957. The Defendants appeal their convictions. We affirm.

I

The Defendants' convictions arose out of the sale of nine newly constructed town homes in the Memorial Park area of Houston, Texas. The properties at issue were in a development called “Maxie Village” and were built by Waterford Custom Homes. Isgar owned 50% of Waterford.

The closings were conducted by the First Southwestern Title Company (FSW), which was operated by the Aldridges and for whom Vincent Aldridge was also a fee attorney doing business as Aldridge & Associates. The Aldridges were both authorized signers on Aldridge & Associates' Interest Only Lawyers Trust Account (IOLTA).

The Aldridges recruited three “straw purchasers” to buy eight of the townhomes. Vincent Aldridge purchased the ninth. The straw purchasers were individuals who wanted to invest in real estate and were told that they would receive $10,000 for each property they purchased; that they would not have to pay the mortgages because tenants would be found to lease the properties; and that after approximatelyone year, the residences would be resold and the straw purchasers might receive additional money at that time. These straw purchasers provided the Aldridges with their respective names, social security numbers, and income information. The Aldridges then used the accurate names and social security numbers, combined with falsified information about income, assets, and intent to use the property as a primary residence, to submit fraudulent loan applications to lenders. The false representations that each purchaser would be residing in the home purchased permitted the Aldridges to obtain 100% financing.

Isgar inflated the sale price of the properties through falsified construction invoices and amendments to the sales contracts. The lenders approved loans to purchase the properties at these inflated practices. When the lenders wired the loan amounts to FSW, disbursements were made to Isgar as payment for the properties. However, other disbursements were made to Aldridge & Associates' IOLTA as well as to Superb Construction that were not disclosed on the settlement statement to the lenders, as required by the Department of Housing and Urban Development (HUD).

The United States mail, including interstate commercial carriers, and wire communications were used to execute this scheme. Loan documents traveled across state lines by facsimile, mail and email. Loan proceeds were wire transferred from the lenders' banks to FSW.

Also involved in the scheme were Alvin Eiland, a mortgage broker, and his employee, Gary Robinson. Robinson assisted Vincent Aldridge in forming Superb Construction, which laundered proceeds from these transactions. Both Eiland and Robinson have pled guilty to conspiracy to commit wire fraud and money laundering and are not parties to this appeal.

A federal grand jury returned a 19–count indictment charging the Aldridges with conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, 1349 (Count 1), aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2, 1343 (Counts 2–12), conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h) (Count 13), and aiding and abetting money laundering, in violation of 18 U.S.C. §§ 2, 1957 (Counts 14–19). Isgar was named only in Counts 1–13. A jury returned a guilty verdict as to all three defendants on all counts.

The Defendants appeal their convictions on multiple grounds. Each asserts that the evidence is insufficient to support a conviction. The Aldridges challenge subject matter jurisdiction and venue. They further contend that they are entitled to a new trial because certain FSW documents should not have been admitted, there was prosecutorial misconduct, and that the cumulative errors denied them a fair trial.¹ Tori Aldridge contends that her indictment was constructively amended, and that the district court erred in the denying her motion for new trial and request for an evidentiary hearing. She also claims ineffective assistance of counsel. Vincent Aldridge appeals his sentence and the amount of restitution owed.

II

Each of the Defendants has challenged the sufficiency of the evidence. “Our review of the sufficiency of the evidence is highly deferential to the verdict.” ² “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ³ “[A]ll reasonable inferences and credibility choices [are] made in support of a conviction.” ⁴ “Our review is thus limited to whether the jury's verdict was reasonable, not whether we believe it to be correct.” ⁵ “Finally, ‘[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt,’ and any conflict in the evidence must be resolved in favor of the jury's verdict.” ⁶

A

Tori Aldridge argues that there was insufficient evidence that a prior conspiracy between her and Eiland or her and Robinson existed and asserts that no reasonable jury could find that a conspiracy existed after March 26, 2005. She contends that in every transaction with Eiland or Robinson, she received only the closing fees disclosed on the HUD form. She points to evidence that she suggests exonerates her. A review of the record, however, reveals ample evidence from which the jury could have reasonably concluded that Tori Aldridge acted with the intent to further the fraudulent scheme.

At trial, Robinson testified that Tori Aldridge prepared the falsified paperwork concerning a straw purchaser's income and intent to use the property as a primary residence. He explained that he received and returned the paperwork to her. One of the straw purchasers, Shawn Stevens, testified that in the documents he signed in purchasing two of the Maxie Village town homes less than one month apart, Tori Aldridge attested that each would be used as his primary residence when in fact, neither would be or actually was used as a residence by him. Tori Aldridge notarized documents that stated Stevens had face-to-face meetings with her when that was false, and she attested that signatures and initials on loan documentation were those of Stevens, though Stevens testified that those signatures and initials were forgeries. One witness stated that Tori Aldridge had expressly directed her to draft a statement lying about her income. Tori Aldridge's signature was on this falsified paperwork. A witness from one of the lenders also verified that Tori Aldridge had signed the closing paperwork, attesting to the accuracy of the information provided therein. There was sufficient evidence from which a jury could conclude that Tori Aldridge was an active participant in the fraudulent scheme.

B

Isgar argues that the Government failed to present sufficient evidence that he was a knowing participant in the fraud. He cites United States v. Curtis⁷ for the proposition that the Government was required to present proof that the actual sale prices of the properties were inflated in the form of either an appraisal report or appraiser testimony and contends that in the absence of such proof, this court must reverse. Isgar also contends that his own damaging statement that the values of these properties were slightly inflated is insufficient to meet the Government's burden.

Isgar is mistaken that Curtis requires proof of an appraisal to support a conviction for conspiracy to commit mail and wire fraud.⁸ In fact, in Curtis, we emphasized that “circumstantial evidence may establish the existence of a conspiracy, as well as an individual's voluntary participation in it.” ⁹ We also noted that a “defendant's knowing and voluntary participation in the conspiracy can even be established solely on the basis of the testimony of a coconspirator ... so long as that testimony is not incredible as a matter of law.” ¹⁰

Here, there was circumstantial evidence supporting Isgar's knowing participation in the fraud. Robinson testified that Isgar's role in the scheme required that Isgar “be okay with inflating the price.” FBI Agent Robert McCallum also testified that Isgar handled the day-to-day business affairs of Waterford and that Isgar had signed the disbursements to the Aldridge's IOLTA and to Superb Construction. Isgar's own statements support the inference that he was a knowing participant. Isgar explained to Agent McCallum that “the sales prices of the properties had been raised” and supported in the documentation with construction repair...