United States v. Radziszewski

• Decision Date: 24 January 2007
• Docket Number: No. 06-1559.,06-1559.
• Citation: 474 F.3d 480
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacek RADZISZEWSKI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.3d 480

UNITED STATES of America, Plaintiff-Appellee, v. Jacek RADZISZEWSKI, Defendant-Appellant.

No. 06-1559.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2006.

Decided January 24, 2007.

COPYRIGHT MATERIAL OMITTED

Michael Gurland (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Nishay K. Sanan (argued), Chicago, IL, for Defendant-Appellant.

Before POSNER, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

After a seven-day trial, a jury convicted Jacek Radziszewski of committing mail and wire fraud in connection with a scheme to obtain real estate loans through false representations. On appeal, Radziszewski challenges the sufficiency of the evidence, the district court's exclusion of one of his proffered good-faith defenses, and his sentence. As detailed below, we find that the evidence was sufficient to support Radziszewski's conviction, and that the court's exclusion of Radziszewski's good-faith argument relating to the repayment of the loans was proper. Finally, the district court's factual findings at sentencing, which resulted in enhancements for the defendant's role in the offense and the use of stolen identification, were not clearly erroneous. Accordingly, we affirm.

I. BACKGROUND

In April 2004, Radziszewski and two associates, Kuba Jasny and Andrzej Filipowicz, were indicted for using the mail and wires in connection with a scheme to defraud lending institutions of real estate loans in violation of 18 U.S.C. §§ 1341 and 1343. They were charged with paying individuals with good credit histories to pose as buyers of properties in Chicago and supplying false documentation to support the loan applications of the straw buyers. According to the indictment, in August 2003, Radziszewski and Jasny successfully orchestrated a straw buyer's purchase of a building located at 631 North Central Park ("the North Central Park Property"), which was financed by Rose Mortgage.¹ Count One concerned a wire transfer resulting from the subsequent assignment of the loan to Washington Mutual Bank.

Further, the indictment alleged that in December 2003, Radziszewski and Jasny attempted to resell the North Central Park Property by asking co-defendant Filipowicz to purchase the property using the name "Marian Plewa" and to apply for a home loan from National City Mortgage. Count Two charged Radziszewski, Jasny, and Filipowicz with causing the interstate mailing of several documents, including a fraudulent loan application for the North Central Park Property bearing the name "Marian Plewa."

Before trial, both Jasny and Filipowicz entered guilty pleas, and Radziszewski moved to dismiss Count One. Radziszewski contended that he could not have formed the requisite intent to defraud both lenders involved in financing the August and December purchases of the North Central Park Property. He noted that Washington Mutual Bank, the lender who financed the August transaction, was to be repaid with proceeds obtained upon the December resale of the property. As a consequence, Radziszewski maintained that he could not have intended to deprive Washington Mutual Bank of funds, because that lender would ultimately be reimbursed. The district court rejected Radziszewski's argument, and the case proceeded to trial.

Several participants in the scheme testified at trial. Ryszard Rutkowski, a Polish immigrant who could not read, speak, or write in English, under a grant of immunity, testified that he purchased the North Central Park Property at Radziszewski's direction in January 2003. Although the home was purchased in Rutkowski's name, he stated that he did not provide any information for his loan application. After the purchase, Rutkowski assisted in making repairs to the building, and Radziszewski paid Rutkowski $2000 for the use of his name.

In August 2003, Rutkowski sold the North Central Park Property to Andrij Kripatskyy, an immigrant, who, like Rutkowski, could neither read nor write in English. At trial, Kripatskyy acknowledged that he came to the United States from Ukraine on a tourist visa and overstayed his period of authorization. Kripatskyy testified that he met the defendant after responding to an advertisement stating that persons with good credit could earn money in real estate without investing their own money. In July 2003, Radziszewski took Kripatskyy to a mortgage broker to sign forms required to obtain a loan. The broker testified that Radziszewski paid him $4000 to ensure that the loan was approved; Kripatskyy received $8000 for his cooperation. As Kripatskyy sat silently, the defendant filled out forms in support of the loan and directed Kripatskyy to sign the forms without translation. Among other things, Kripatskyy signed a loan application in which the defendant falsely represented that Kripatskyy worked at a company called Best Investments and earned $70,000 a year. Additionally, the defendant produced fake W-2s and bank account statements, and a false appraisal, which inflated the value of the property to $297,000 (approximately $100,000 more than its actual value). The appraisal bore the signature of licensed appraiser Bill Nold. However, Nold testified that although he had appraised the property, he had actually valued the home somewhere between $191,000 and $203,000 and that the higher appraisal was a forgery.

An underwriter for the lender, Rose Mortgage Company, testified that, relying on the false employment information, account statements, and appraisal, she approved the $237,600 loan issued to Kripatskyy which enabled him to purchase the North Central Park Property in August 2003. At closing, Radziszewski told both Rutkowski (the purported seller) and Kripatskyy (the straw buyer) what and where to sign, as neither individual could read the English documents. Rutkowski, Kripatskyy, and Radziszewski were also informed that Rose Mortgage Company would be assigning the loan to Washington Mutual Bank.

By November, Radziszewski had begun preparations for the December resale of the North Central Park Property to co-defendant Andrzej Filipowicz for $349,000. Like the previous straw buyers, Filipowicz spoke little English. To procure a $279,000 loan from National City Mortgage, the defendant took Filipowicz to meet a National City Mortgage broker on two occasions. Before each meeting with the broker, Radziszewski provided Filipowicz with a driver's license bearing the name "Marian Plewa," in whose name the property was to be purchased. The driver's license displayed the social security number belonging to the real Marian Plewa, a resident of Palos Park, Illinois, who had not authorized the use of his personal information. Additionally, the defendant supplied the broker with fraudulent documents, including fake bank statements, pay stubs, and a fake appraisal valuing the property at $300,000. During the meetings, Radziszewski instructed Filipowicz to sign various documents without translating them into English. Filipowicz was promised that a $5000 debt he owed to one of Radziszewski's associates would be forgiven in exchange for his participation in the scheme.

On December 22, 2003, Jasny took Kripatskyy (purported seller) and Filipowicz (straw buyer) to the closing. By that time, based on a bank's discovery that the account number and balance provided on the loan application did not correspond to a "Marian Plewa," the Federal Bureau of Investigation (FBI) had learned of the scheme. After the parties completed their transaction, they were arrested. Radziszewski, who did not attend the closing, was arrested at a later date. At that time, he possessed a host of items linking him to the scheme, including cell phones used to call Filipowicz before the December closing, the contact information for real estate appraiser Bill Nold, and papers showing that he owned Illinois Best Investments, the purported employer of Kripatskyy and Filipowicz.

A jury found the defendant guilty on both counts. The district court sentenced the defendant to 33 months' imprisonment based on a loss amount of $115,979, the defendant's role as a leader in the criminal activity, and the unauthorized use of stolen identification during the offense.² The defendant now appeals both his conviction and sentence.

II. ANALYSIS

A. Sufficiency of the Evidence

Radziszewski first challenges the sufficiency of the evidence in support of his mail and wire fraud convictions. When faced with such a challenge, we will only reverse a defendant's conviction if, viewing all evidence in the light most favorable to the government, no rational trier of fact could have found the defendant guilty of the charges beyond a reasonable doubt. United States v. Olson, 450 F.3d 655, 664 (7th Cir.2006). To prove mail or wire fraud, the prosecution must demonstrate: "(1) the defendant's participation in a scheme to defraud; (2) the defendant's intent to defraud; and (3) the defendant's use of the mail (for 18 U.S.C. § 1341) or wires (for 18 U.S.C. § 1343) in furtherance of the fraudulent scheme." United States v. Davuluri, 239 F.3d 902, 906 (7th Cir. 2001). Radziszewski does not dispute the existence of a scheme to defraud lenders, he simply disclaims any intentional participation in that scheme by portraying himself as an innocent translator or mere associate of those involved in the scheme.

The evidence at trial, however, demonstrated that Radziszewski was not just a knowing participant, but a leader in the scheme. According to trial testimony, Radziszewski selected straw buyers based on their credit histories, took them to meetings with mortgage brokers, supplied the brokers with the critical documents for obtaining loan approval, told the buyers where to sign forms, bribed a broker to increase the probability of loan approval, and even provided a straw buyer the identification required to assume a stolen identity. Further, the documentary evidence showed that funds gained at the...