United States v. Marc Engelmann

720 F.3d 1005, 2013 WL 3880187, 2013 U.S. App. LEXIS 15448
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 30, 2013
Docket12-1343
StatusPublished
Cited by17 cases

This text of 720 F.3d 1005 (United States v. Marc Engelmann) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Marc Engelmann, 720 F.3d 1005, 2013 WL 3880187, 2013 U.S. App. LEXIS 15448 (8th Cir. 2013).

Opinions

SHEPHERD, Circuit Judge.

This case is before us after our limited remand in United States v. Engelmann, 701 F.3d 874 (8th Cir.2012). Marc Robert Engelmann was convicted of conspiracy to commit bank and wire fraud under 18 U.S.C. § 371, bank fraud under 18 U.S.C. § 1344, and wire fraud under 18 U.S.C. § 1343. The district court1 sentenced him to 36 months imprisonment and ordered him to pay a total of $392,937.73 in restitution to three different financial institutions. Engelmann appealed his conviction and sentence, and we ordered a limited remand for the district court to conduct an eviden-tiary hearing concerning one of Engel-mann’s arguments and to reconsider En-gelmann’s motion for a new trial after that hearing. See Engelmann, 701 F.3d at 879. We retained jurisdiction to address all of Engelmann’s points on appeal after these further district court proceedings.2 Id. The district court held the evidentiary hearing and issued an opinion. We now affirm Engelmann’s conviction and sentence.

I.

Engelmann was a real estate attorney and represented a seller in nine different transactions involving a “dual price” purchasing agreement. Through these agreements, the buyers and sellers provided lenders with inflated sales prices to secure higher loan amounts, and then the buyers pocketed the difference between the inflated and actual amounts. The buyers went into first-payment default on all nine mortgages, and the properties were sold at sheriffs sales or short sales.

Engelmann’s defense at trial was that he did not have the requisite intent to defraud because he thought the lenders knew of the dual pricing scheme. He requested the following jury instruction:

One of the issues in this case is whether the defendant acted in good faith. Good faith is a complete defense to the charge of conspiracy to commit bank and wire fraud (Count 1), bank fraud (Counts 2 and 3) and wire fraud (Counts 4 thru 9) if it is inconsistent with the defendant acting to conspire with one or more other persons to commit bank and wire fraud under element 1 of Count 1, or the intent to defraud under element 2 of the bank fraud counts and element 2 of the wire fraud counts.
Evidence that the defendant acted in good faith may be considered by you, together with all the other evidence, in determining whether or not he acted with intent to defraud.
Fraudulent intent is not presumed or assumed; it is personal and not imputed. One is chargeable with his own personal intent, not the intent of some other person. Bad faith is an essential element of fraudulent intent. Good faith constitutes a complete defense to one charged with an offense of which fraudulent intent is an essential element. One who acts with honest intention is not chargeable with fraudulent intent. Evidence which establishes only that a person made a mistake in judgement or an er[1009]*1009ror in management, or was careless, does not establish fraudulent intent. In order to establish fraudulent intent on the part of a person, it must be established that such person knowingly and intentionally attempted to deceive another. One who knowingly and intentionally deceives another is chargeable with fraudulent intent notwithstanding the manner and form in which the deception was attempted.

Appellant’s Addendum 27-28.

The language in the first two paragraphs tracks the Eighth Circuit’s model good-faith jury instruction for fraud cases. See Eighth Circuit Manual of Model Jury Instructions: Criminal 9.08 (“Model Instruction 9.08”). The language in the final paragraph is from a jury instruction that we upheld in United States v. Ammons, 464 F.2d 414, 417 (8th Cir.1972), and that the model instructions reference as potential language to include “if appropriate.” See Model Instruction 9.08; id. n. 2.

The district court essentially gave the first two paragraphs of Engelmann’s requested good-faith instruction but omitted the third paragraph. R. at 77. The other instructions on the elements of the underlying conspiracy and fraud offenses explained Engelmann could be convicted only if he “voluntarily and intentionally joined in the agreement or understanding” while knowing “the purpose of the agreement or understanding,” R. at 59; that “[a] person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member,” R. at 60; and that Engelmann must have acted “knowingly” and with “intent to defraud,” R. at 66-67.

After the jury began deliberating, it asked the court to define good faith. The court denied the jury’s request over En-gelmann’s objection and directed them to review the jury instructions they already had available. The jury ultimately found Engelmann guilty on all counts.

At Engelmann’s sentencing hearing, En-gelmann argued that the court could not enhance his base sentencing level due to the amount of loss involved in the crimes because the complexity of the sub-prime mortgage market precluded any accurate loss calculation. The district court rejected this argument and increased Engel-mann’s base offense level by 12 for the amount of loss.

Engelmann also argued at sentencing that the court could not award restitution under the Mandatory Victims Restitution Act because the lending institutions were not real “victims” under the statute and because the government could not prove restitution amounts. The district court rejected each of these arguments and ordered Engelmann to pay restitution to three companies in the following amounts: New Century Liquidating Trust ($226,-587.34), JP Morgan Chase ($108,560.48), and Lehman REO-ALS ($57,839.91).

Meanwhile, after the jury’s verdict, a trial observer contacted the district court to report that he had seen two of the government’s witnesses, FBI Special Agents Jeff Huber and Jim McMillan (collectively “the Agents”), speaking outside the courtroom about testimony that Agent Huber had given at trial.3 A witness sequestration order was in place throughout the trial. Agent Huber was the government’s designated case agent and consequently remained in the courtroom throughout the trial. Agent McMillan was called as a rebuttal witness following En-gelmann’s trial testimony. Both Agents [1010]*1010testified that Engelmann essentially confessed to the fraud when they jointly interviewed him during their investigation. During closing arguments, the government emphasized that Agent McMillan’s testimony about Engelmann’s confession was especially credible because he had not heard Agent Huber’s testimony before giving his own.

Engelmann moved for an evidentiary hearing concerning the Agents’ conversation and for a new trial, arguing that the conversation violated the court’s witness sequestration order and prejudiced him. Without holding an evidentiary hearing, the district court denied the motion for a new trial.

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Bluebook (online)
720 F.3d 1005, 2013 WL 3880187, 2013 U.S. App. LEXIS 15448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marc-engelmann-ca8-2013.