United States v. Brandy Thomas
791 F.3d 889
| 8th Cir. | 2015Background
- Brandy Thomas was indicted on four counts of wire fraud for submitting false income information and fictitious supporting documents on mortgage loan applications (three purchases, one refinance) in 2006; convicted by a jury and sentenced to 48 months imprisonment plus restitution and supervised release.
- Thomas contested several trial rulings: the district court’s jury instruction on intent to defraud, admission of evidence of a 2007 similar scheme (grandmother’s transaction), admission of an unfiled 2006 tax return, introduction/argument about unreported debts (alleged constructive amendment/variance), and the court’s polling of jurors plus issuance of an Allen charge.
- The district court gave an intent-to-defraud instruction modeled on the Eighth Circuit mail-fraud instruction, requiring knowledge and intent to deceive for financial gain to another’s detriment.
- The court admitted testimony about the 2007 transaction under Fed. R. Evid. 404(b) to show intent and absence of mistake, finding the prior act similar, timely, and adequately supported.
- The court also admitted an unfiled 2006 tax return as probative of Thomas’s actual income and rejected claims of unfair prejudice; it rejected Thomas’s constructive-amendment claim, treating the argument as a nonfatal variance; and it upheld polling and an Allen charge as non-coercive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction on “intent to defraud” | Court should require proof that Thomas contemplated some actual harm to victims (relying on Jain) | Instruction need only require intent to deceive and financial gain; no proof of actual loss required | Affirmed — Eighth Circuit instruction (intent to deceive for financial gain to another’s detriment) was proper; Jain inapplicable (different fraud context) |
| Admission of 2007 similar-scheme evidence (Rule 404(b)) | Testimony was inconsistent and more prejudicial than probative; should be excluded | Evidence admissible to show intent/lack of mistake; similar in kind and temporally close (one year) | Affirmed — admissible under Rule 404(b) (relevant, similar, sufficiently supported, not unfairly prejudicial) |
| Admission of unfiled 2006 tax return | Irrelevant and unfairly prejudicial because it was never filed or reported to lenders/IRS | Probative of actual income integral to the fraud charges; jury was told it was unfiled so may weigh it accordingly | Affirmed — relevant and probative; not unfairly prejudicial; no abuse of discretion under Rules 401/403 |
| Constructive amendment / variance regarding unreported debts | Introduction/argument about unlisted debts in Counts II & III amounted to constructive amendment (new offenses) | Evidence related to the same scheme and documents were in evidence; government theory consistent; at most a variance | Affirmed — no constructive amendment; any variance was not fatal and did not prejudice Thomas’s ability to defend |
| Polling jurors and giving Allen charge | Polling and supplemental instruction coerced jurors and singled out jurors | Polling was limited and intended to assess whether further deliberations could help; Allen charge non-coercive in content and followed by two hours of deliberation | Affirmed — no coercion: instruction balanced, additional deliberation time reasonable, polling limited and not improper |
Key Cases Cited
- United States v. Louper-Morris, 672 F.3d 539 (8th Cir. 2012) (government need not show actual loss; intent to deceive and communications reasonably calculated to deceive suffice for fraud)
- United States v. Jain, 93 F.3d 436 (8th Cir. 1996) (discussed — honest-services context; court found inapplicable here)
- Huddleston v. United States, 485 U.S. 681 (1988) (district court should not assess credibility when determining admissibility of other-acts evidence under Rule 404(b))
- Stirone v. United States, 361 U.S. 212 (1960) (constructive amendment occurs when indictment’s essential elements are altered so jury can convict on an uncharged offense)
- United States v. Whirlwind Soldier, 499 F.3d 862 (8th Cir. 2007) (constructive amendment / substantial likelihood standard)
- United States v. Thomas, 398 F.3d 1058 (8th Cir. 2005) (timeliness/reasonableness standard for admitting other-acts evidence)
- United States v. Ruiz, 412 F.3d 871 (8th Cir. 2005) (deference to district court’s Rule 403 probative-prejudice balancing)
- Lowenfield v. Phelps, 484 U.S. 231 (1988) (juror division inquiries permissible when determining whether further deliberations can be productive)