United States v. Dwayne Onque

665 F. App'x 189
CourtCourt of Appeals for the Third Circuit
DecidedNovember 9, 2016
Docket15-2436; 15-2453; 15-2501
StatusUnpublished
Cited by1 cases

This text of 665 F. App'x 189 (United States v. Dwayne Onque) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third 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. Dwayne Onque, 665 F. App'x 189 (3d Cir. 2016).

Opinion

OPINION *

GREENAWAY, JR., Circuit Judge.

After a consolidated trial, Appellants Dwayne Onque, Mashon Onque, and Nan *192 cy Wolf-Fels were convicted of conspiracy to commit wire fraud; Dwayne Onque was also convicted of conspiracy to commit money laundering. Before this Court, Appellants allege a series of trial and sentencing errors, which we consider in turn. For the reasons set forth below, we find no error. Accordingly, we will affirm the judgment of conviction entered by the District Court. 1

I. Background

In 2006, four men—Nick Tarsia, Darryl Henry, Timothy Ricks, and Jerry Smith— devised a mortgage fraud scheme seeking to obtain inflated mortgage loans. By borrowing more funds than they paid for the properties and retaining the difference, the conspirators were able to make money on each fraudulent transaction. The conspirators entered into thirty-one real estate transactions from October 2006 through May 2008. Ultimately, the conspiracy “caused approximately fifteen (15) million dollars in funds to be released from various lenders, most often in the form of a wire.” (JA 86.)

There were three tiers of conspirators. At the top (the “first tier”) were the four leaders—Tarsia, Henry, Ricks, and Smith—who planned, launched, and ran the conspiracy. These leaders would find financially distressed property owners who would agree to (A) sell their units at reduced prices to buyers provided by the conspiracy leaders, and then (B) report a higher sale price for mortgage applications, with the understanding that the conspiracy leader would receive the difference between the inflated sale price and the actual sale price.

The second tier consisted of people who worked in the mortgage industry and who could prepare and authorize fraudulent “W-2s, income tax statements, bank statements, and also ,... 401 (k) retirement fund[]” records to indicate that the purported purchasers of the properties were eligible for the requested loans. (JA 1860.) Nancy Wolf-Fels, a loan officer at Mortgage Now, 2 and Mashon Onque, a notary public and title officer at Tri-State Title Agency, Inc., were industry-insider conspirators who were part of the second tier.

At the lowest level of the conspiracy (the “third tier”) were “straw purchasers” such as Dwayne Onque, who had good credit scores but lacked the funds to purchase properties. These straw purchasers agreed to apply for the inflated mortgages by signing fraudulent financial applications prepared by other conspirators. The applications contained false information about the straw purchasers’ incomes, job titles, and assets. The documents also falsely indicated that the straw purchasers brought their own funds to closings. For their participation, the straw purchasers received “an up-front payment after the closing for allowing their names and credit information to be used in connection with the transaction.” (JA 88.)

The conspiracy leaders used the excess loan funds to pay the straw purchasers; they would also reinvest money in the *193 scheme by setting some money aside to cover future down-payments and six months of mortgage payments for the purchased properties. These payments served to delay the discovery of the fraud and thus furthered the conspiracy. The leaders then split the remaining profits.

When the leaders failed to pay the mortgages and fees on certain properties, an investigation ensued that brought the conspiracy to light.

II. Procedural History

On November 6, 2013, a federal grand jury returned a two-count Second Superseding Indictment against Wolf-Fels, the Onques, and four others. Count One of the indictment alleged that Wolf-Fels, Ma-shon Onque, and Dwayne Onque, and others participated in a conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and contrary to 18 U.S.C. § 1343. Count Two alleged that Dwayne Onque and two others committed conspiracy to commit money laundering in violation of 18 U.S.C. § 1957.

After motions in limine, including the Government’s request to introduce Rule 404(b) evidence against each defendant, trial commenced against Wolf-Fels, Dwayne Onque, and Mashon Onque.

At the close of a fourteen-day trial, the jury found all three defendants guilty as to Count One and found Dwayne Onque guilty as to Count Two. The District Court sentenced Dwayne Onque to 63 months’ imprisonment, Mashon Onque to 30 months’ imprisonment, and Wolf-Fels to 42 months’ imprisonment. Each term of imprisonment was to be followed by three years’ supervised release.

The District Court considered and denied the defendants’ various post-trial motions. United States v. Onque, 169 F.Supp.3d 555, 562-63 (D.N.J. 2015). Each defendant timely filed a notice of appeal.

III. Analysis

The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. This Court has jurisdiction over the challenges to the convictions pursuant to 28 U.S.C. § 1291 and to the sentences pursuant to 18 U.S.C. § 3742(a). We consider, and reject, each of Appellants’ challenges.

A. Challenge Raised by Wolf-Fels 3

For the first time on appeal, 4 Wolf-Fels argues that the Government charged a single, large hub-and-spokes conspiracy in the indictment but proved, at most, that a number of smaller conspiracies took place. In other words, Wolf-Fels argues that there was a variance between the offense charged and the evidence adduced at trial. As a consequence, the Government introduced a great deal of evidence unrelated to Wolf-Fels. Wolf-Fels further asserts that she was prejudiced by this purportedly extraneous evidence because it enabled the *194 jury to “convict her based purely on association with a parade of guilty witnesses.” (Wolf-Fels Br. 33.)

At oral argument, Wolf-Fels stressed that the case had been tried as if it were sufficient to show that the four conspiracy leaders were involved in all charged activity, whereas the Government actually needed to show that the lower-tier conspirators were aware that other lower-tier conspirators were also participating in the conspiracy. Mashon Onque agreed and contended that, in this ease, multiple discrete conspiracies connected by only the participation of a few key participants had been charged as a “single, all-inclusive conspiracy.” Blumenthal v.

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665 F. App'x 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dwayne-onque-ca3-2016.