United States v. Jason Moreno
2016 U.S. App. LEXIS 31
| 3rd Cir. | 2016Background
- Jason Moreno, an unlicensed appraiser who ran Platinum Appraisal Services, supplied knowingly inflated appraisals (often signing partner Joel Reck’s name) to two mortgage-fraud schemes (Pittsburgh Home Loans and Easy Realty Solutions) and participated as broker/buyer/seller in several fraudulent transactions.
- Government presented documentary evidence of 110 fraudulent mortgage transactions (financed by 24 lenders) and eyewitness and expert testimony showing widespread overvaluation and payments to scheme participants.
- Moreno was convicted by a jury of two counts of conspiracy to commit wire fraud and five counts of wire fraud; district court sentenced him to 96 months’ imprisonment.
- At trial, the government had a cooperating witness (Arakelian) read portions of Secret Service agent Heckman’s memoranda summarizing pretrial interviews; Heckman did not testify.
- At sentencing, the district court applied a 4-level U.S.S.G. § 2B1.1 enhancement for 50+ victims based on proven and alleged additional fraudulent appraisals.
- During Moreno’s allocution the prosecutor, without leave, cross-examined Moreno about his criminal conduct; the court later relied on those admissions in sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of agent’s memoranda read by cooperating witness — Confrontation/Hearsay | Moreno: admission of Heckman’s investigatory memoranda (read by Arakelian) violated Confrontation Clause and hearsay rules | Government: memoranda were prior consistent statements and harmless given cumulative evidence | Court: Memoranda were testimonial and admission violated Confrontation Clause, but error was harmless beyond a reasonable doubt; conviction affirmed. |
| Sentencing enhancement for 50+ victims under U.S.S.G. § 2B1.1 | Moreno: record did not support finding of 50+ victims; any error is plain | Government/District Ct: documentary evidence of 110 appraisals and PSR estimating ~250 fraudulent appraisals show >50 victims (buyers/lenders suffered pecuniary loss) | Court: Finding not clearly erroneous; four-level enhancement affirmed. |
| Right of allocution — prosecutor cross-examining defendant during allocution | Moreno: cross-examination during allocution violated Rule 32(i)(4)(A) purpose and prejudiced sentencing; plain error | Government: Rule 32 does not explicitly prohibit cross-examination and past authority does not squarely ban it; argued prosecutor was overzealous | Court: Cross-examination during allocution plainly erred, prejudiced Moreno (court relied on admissions), and requires resentencing; sentence vacated and remanded. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (establishes testimonial statement rule under Confrontation Clause)
- Davis v. Washington, 547 U.S. 813 (clarifies when out-of-court statements are testimonial)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (extrajudicial forensic/investigative reports are testimonial)
- Chapman v. California, 386 U.S. 18 (harmless-beyond-a-reasonable-doubt standard for constitutional error)
- Van Arsdall v. Illinois, 475 U.S. 673 (factors for assessing harmlessness of Confrontation errors)
- United States v. Jimenez, 513 F.3d 62 (3d Cir.)(factors to evaluate harmlessness for Confrontation Clause error)
- United States v. Ward, 732 F.3d 175 (3d Cir. 2013) (describes purpose of allocution under Rule 32 and limits on its use)
- United States v. Adams, 252 F.3d 276 (3d Cir.) (allocution preserves fairness; prejudice presumed when right violated)
- United States v. Paladino, 769 F.3d 197 (3d Cir.) (plain error review for allocution violations)