United States v. Burke

645 F. App'x 883
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 10, 2016
DocketNo. 14-13758
StatusPublished
Cited by1 cases

This text of 645 F. App'x 883 (United States v. Burke) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Burke, 645 F. App'x 883 (11th Cir. 2016).

Opinion

PER CURIAM:

Darryl Burke and Vicki Garland, his wife, appeal their convictions for conspiracy to commit bank and wire fraud, in violation of 18 U.S.C. § 1349, and bank fraud, in violation of 18 U.S.C. § 1344. Burke also appeals the prison sentences received, totaling 360 months, for his convictions.1 Burke and Garland challenge their convictions on the ground that the district court abused its discretion in refus[885]*885ing to instruct the jury that it could take into account the “market conditions” at the time they committed the offenses in determining whether they had made “material” misrepresentations to lenders. Burke also contends that the court abused its discretion under Federal Rule of Evidence 404(b) in admitting evidence of his prior conviction for fraud. He challenges his total sentence on the ground that the court, in applying the Sentencing Guidelines, clearly erred in finding that he was responsible for a loss amount of between $7,000,000 and $20,000,000. After a careful review of the record and consideration of the parties’ briefs, we affirm.

I.

Appellants’ convictions grew out of an extensive mortgage-fraud scheme they and others perpetrated in South Florida from 2006 to October 2010. Briefly stated, appellants, and others involved in the scheme, recruited individuals seeking to purchase a home and assisted them in completing mortgage loan applications. These applications contained material representations that were false, and appellants knew that. The applications grossly overstated the borrower’s salary and assets, or provided a false employment history, or were accompanied by fraudulently altered or wholly fabricated pay stubs, W-2 forms, and bank statements. In addition to assisting potential home buyers prepare fraudulent loan applications, appellants used fraudulent applications to obtain mortgage loans for themselves. They did so by using aliases, so their real names wouldn’t appear on the title to the property or other loan documents. Appellants were very successful. Lenders relying on the fraudulent applications granted the mortgage loans applied for. With this description of appellants’ fraudulent scheme in hand, we consider their challenge to the district court’s jury instructions and, then, to Burke’s Rule 404(b) argument.

II.

A.

Burke and Garland argue that the district court abused its discretion in refusing to instruct the jury that the jury must acquit them if it found that the “market conditions” at the time of the offenses were such that the misstatements in the applications for mortgage loans regarding, for example, the buyer’s income and employment situation were immaterial.

We review an argument that the district court wrongfully denied an instruction for abuse of discretion. United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir.2006). “The district court’s refusal to incorporate a requested jury instruction will be reversed only if the proffered instruction was substantially correct, the requested instruction was not addressed in charges actually given, and failure to give the instruction seriously impaired the defendant’s ability to present an effective defense.” United States v. Starrett, 55 F.3d 1525, 1551 (11th Cir.1995) (citation and internal quotations omitted).

“As long as there is some basis in the evidence and legal support, the jury should be instructed on a theory of the defense.” United States v. Zlatogur, 271 F.3d 1025, 1030 (11th Cir.2001). A more specific instruction on a “theory of the defense,” however, is not warranted when the jury charge that was given adequately covered the substance of the requested instruction. See United States v. Jones, 933 F.2d 1541, 1544-45 (11th Cir.1991) (holding that the district court’s refusal to give a jury instruction relating to the defendant’s “theory of defense” that the government’s witnesses lied was not error when the court “repeatedly advised the jury that it did not [886]*886have to accept all the testimony before it as being true and accurate, and that certain testimony should be considered with caution and weighed with great care”).

To obtain a conviction for bank fraud, the government must prove that the defendant made a “material” false representation. United States v. Gregg, 179 F.3d 1312, 1314 (11th Cir.1999). A false statement is generally material “if it has a natural tendency to influence, or is capable of influencing, the decisionmaking body to which it was addressed.” Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 1837, 144 L.Ed.2d 35 (1999) (quotation omitted). Reliance on the false statement, however, is not necessary to make it material. Gregg, 179 F.3d at 1315. Rather, the statement need only have been intended to exert “actual influence” and have the “capacity” to do so. Id. In Gregg, we affirmed a conviction for bank fraud where the defendant falsely told a bank teller that a check without all required endorsements had been approved by the bank manager. Id. at 1314-15. The check was deposited after the bank manager mistakenly assumed that all the endorsements were present. Id. We then rejected the defendant’s argument that the statements were immaterial because the bank did not rely on his false statement in depositing the check. Id.

We find no abuse of discretion in the district court’s refusal to give appellant’s request for a “market conditions” theory-of-defense jury instruction, because their theory, which centered on materiality, was substantially covered by other instructions defining materiality. Moreover, it was not supported by the law, which indicates that reliance on a false statement is not necessary to make it material.

B.

Burke asserts that the district court abused its discretion in admitting evidence of his prior conviction for fraud because the conviction was too remote in time and not sufficiently similar to the instant offense to outweigh the substantial prejudice he would face from the jury’s equating the prior conviction to the instant charge. Under Rule 404(b), “[evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” Fed.R.Evid. 404(b)(1). However, this evidence may be admissible for another purpose, such as to demonstrate motive, intent, absence of mistake, or lack of accident. Fed.R.Evid. 404(b)(2); United States v. Sanders, 668 F.3d 1298, 1314 (11th Cir.2012).

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Bluebook (online)
645 F. App'x 883, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-burke-ca11-2016.