United States v. Wiseman

339 F. App'x 196
CourtCourt of Appeals for the Third Circuit
DecidedAugust 6, 2009
DocketNo. 07-3706
StatusPublished

This text of 339 F. App'x 196 (United States v. Wiseman) 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. Wiseman, 339 F. App'x 196 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge:

Marcus Wiseman (“Wiseman”) appeals his conviction and sentence for bribery, conspiracy, and wire fraud in violation of 18 U.S.C. §§ 215(a)(2), 371, and 1343. Following a jury trial, he was sentenced to a forty-one month term of imprisonment. Wiseman remains free, however, pending the disposition of this appeal. For the reasons set forth below, we will affirm the judgment of the District Court in all respects.1

I.

Because we write exclusively for the parties, we only discuss the facts to the extent necessary for resolution of the case.

Wiseman has extensive experience in home mortgage lending, having worked in the industry for at least the last decade. During that time, he served in a variety of positions, ranging from broker to underwriter. Further, he both operated his own firm and managed branch offices of national lending institutions.

Beginning in 2002, Wiseman procured several fraudulent mortgage loans for Jeffrey Martin (“Martin”) and Raymon Harris (“Harris”), both of whom were close friends and former colleagues. Martin and Harris obtained at least twenty-four fraudulent loans over a period of approximately six years, four of which were assisted by Wiseman. Following a jury trial, Wiseman was convicted for his role in connection with the fraudulent transactions in which he assisted. On appeal, Wiseman challenges the admissibility of opinion testimony offered by two lay witnesses. He also challenges the appropriateness of his sentence, specifically in regard to the adjustments for the amount of loss suffered and for his role in the offense.

II.

We first address Wiseman’s contention that he suffered substantial prejudice from non-disclosed expert witness testimony. He argues that the trial testimony offered by two lay witnesses was inappropriate because the testimony involved specialized knowledge and therefore should have been admitted as expert testimony. Wiseman’s claim is based on three questions asked by the Government: one posed to Martin and [198]*198two directed to Shelly Beck (“Beck”). We review the District Court’s decision to admit lay opinion testimony for abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 170 (3d Cir.2008).

At trial, the Government established that Martin grew-up in Pittsburgh, that he had worked in the area for at least ten years, and that he was familiar with the real estate market, particularly in a neighborhood known as Polish Hill. One property owned by Martin, which he later refinanced with Wiseman’s assistance, was located in Polish Hill. Martin testified that he submitted an appraisal concerning this property to Wiseman, on which Martin falsified both the original purchase price and current value of the property.2

The Government subsequently asked Martin whether, “based upon [his] experience in the Pittsburgh area,” the increased value represented on the appraisal was “common.” Over Wiseman’s objection, the District Court permitted Martin to answer, reasoning that he did not need to be a trained appraiser, and therefore qualify as an expert witness, to answer the question but could do so “based on his experience.” Martin then explained that the increase in value would have been “[v]ery uncommon,” and that he had “never seen a property increase like that.”

Wiseman also objected to opinions offered by Beck, the national underwriting manager for National City Corp. At trial, Beck summarized her thirty-four years of experience in the mortgage industry and described the training program in which employees like Wiseman were required to participate. Further, Beck analyzed two loan applications that had been submitted by Martin and which Wiseman had played a significant role in originating, processing, and approving. Beck testified that the applications contained several significant and conspicuous inconsistencies.

The Government solicited Beck’s opinion concerning what she would have done if she had been presented with a loan application with similar representations of sale price and present value. The Government asked: “Now, if you had all this information as indicated in this chart, that you had done if you were associated with both of these loans and had this information, what would you do with that loan?”3 The Government later continued: “Now, let’s assume that as an underwriter or bank employee you have this information in front of you. What, if anything, do you [do] with that loan file ... ?” And concerning the other property, the Government asked, “Now, I’ll ask you to assume for a moment that [the property] is in one of the most distressed areas.... With that assumption in mind, what do you do with the ... loan file?”

The District Court overruled each of Wiseman’s objections to the Government’s questions, concluding that the opinion offered by Beck was not expert testimony; rather, the District Court reasoned that “this is what she does for a living.” In response to each of the questions, Beck confirmed that she would not have approved the loans, would have been suspicious of fraud, and would have referred the matter to an investigative unit of the company.

[199]*199III.

As an initial matter, we disagree with Wiseman’s contention that the opinion testimony offered by Martin involved specialized knowledge, governed by Fed. R.Evid. 702 (“Testimony by Experts”). Indeed, it has been long and widely recognized that, “[a]s a general rule, the opinion of a landowner as to the value of his land is admissible without further qualification because of his close relationship with the land.” District of Columbia Redevelopment Land Agency v. Thirteen Parcels of Land, 534 F.2d 337, 339 (D.C.Cir.1976); see also, e.g., LaCombe v. A-T-O, Inc., 679 F.2d 431, 433 (5th Cir.1982) (“the owner of property is qualified by his ownership alone to testify as to its value”); United States v. 79.20 Acres of Land, More or Less, 710 F.2d 1352, 1357 (8th Cir.1983) (a landowner’s “testimony as to the value of his land is admitted in federal courts without further qualification.” (internal quotations marks and emphasis omitted)); State ex rel. Smith v. 0.15 Acres of Land, More or Less, 169 A.2d 256, 258 (Del.1961) (“Generally speaking, the great weight of authority is to the effect that an owner of property may express an opinion as to its fair market value.”). Martin owned the property in question.

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Bluebook (online)
339 F. App'x 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wiseman-ca3-2009.