UNITED STATES of America, Plaintiff-Appellee v. Albert William ROBERTS, III, Defendant-Appellant
No. 17-1366
United States Court of Appeals, Eighth Circuit
February 5, 2018
Rehearing and Rehearing En Banc Denied April 10, 2018
881 F.3d 1049
Submitted: November 15, 2017
Even if the IJ erred on this point, however, the error does not require us to grant the petition for review. Bernard‘s purported ability to hide or keep secret his sexual orientation was not the only factor the IJ considered. Ultimately, as the IJ and the Board both pointed out, Bernard‘s claim requires “stringing together a series of suppositions“-not only that he will be outed, but also that community members will harm him to a level amounting to “torture,” and that a public official will acquiesce to the torture. See Lopez, 810 F.3d at 492-93 (upholding denial of CAT relief despite evidence of general violence against LGBT community); Bathula v. Holder, 723 F.3d 889, 904 (7th Cir. 2013) (upholding denial where IJ did not require petitioner to “live in hiding” but instead discredited likelihood of future torture); see also Fuller, 833 F.3d at 868, 871-72 (noting dangers in Jamaica for LGBT persons but upholding denial of CAT relief).
Bernard‘s claim based on his political affiliation is even weaker. The evidence before the IJ consisted mostly of hearsay reports about general violence between the two main political parties (or perhaps more accurately, their affiliated gangs in Spanish Town) and the murders of Bernard‘s relatives. Yet none of the witnesses could describe these murders with much clarity or sufficiently link them to the victims’ political advocacy. The IJ and the Board thus reasonably discounted these reports. See Fuller, 833 F.3d at 869 (finding it “entirely reasonable” for IJ to hold against petitioner his inability to remember details of shooting). Moreover, although Bernard testified that he helped with political rallies when he was a child, nowhere does he suggest that he plans to engage in political activism back in Jamaica. Instead, his fear comes from a vague threat by one of his relatives’ killers, who purportedly said he would find and kill anyone in Bernard‘s family. This threat does not appear related to Bernard‘s own political affiliation, and his fear of torture based on political affiliation is otherwise too speculative to justify relief under the CAT. See Lozano-Zuniga, 832 F.3d at 830-31.
III. CONCLUSION
We therefore DISMISS for lack of jurisdiction the portion of Bernard‘s petition seeking reversal of the “particularly serious crime” designation and attendant finding of ineligibility for withholding of removal. We DENY the remainder of the petition for review.
Counsel who presented argument on behalf of the appellant was Daniel Goldberg, AFPD, of Kansas City, MO.
Before COLLOTON and GRUENDER, Circuit Judges, and HOLMES,1 District Judge.
HOLMES, District Judge.
Albert William Roberts, III, appeals the judgment of the district court2 denying his motion for judgment of acquittal and sentencing him to 48 months’ imprisonment. We affirm.
I.
Roberts was charged with one count of conspiracy to commit wire fraud and with four separate counts of wire fraud. The separate instances of wire fraud were based on transactions carried out during the course of the conspiracy charged in the first count.
The charges were based on Roberts’ conduct in numerous real estate transactions. Roberts purchased 12 homes from the same seller, Gary Penrod, and obtained loans from various lenders for each home. On loan applications and closing documents, Roberts failed to report all properties he owned, recorded substantially different income levels, and claimed he would be an owner-occupant for four separate properties. Additionally, Roberts and Penrod never negotiated the sale price, but Roberts generally purchased the homes at list price. In those instances where his lender would not approve a loan at list price, Roberts purchased the homes for some lesser amount for which a loan would be approved. Subsequent to the closing of the purchases, Roberts received payments from Penrod that covered closing costs. Roberts also received payments from Penrod that Roberts characterized as profit sharing, but that the government viewed as kickbacks for Roberts’ participation in the wire fraud conspiracy. However they should be characterized, Roberts filed no supplemental closing documents disclosing any of these payments.
At trial, Roberts moved for judgment of acquittal. The motion was denied. The jury acquitted Roberts of the conspiracy charge but found him guilty of the four separate counts of wire fraud.
At sentencing, Roberts objected to the district court‘s use of acquitted conduct to determine the loss amount and the number of victims. The district court overruled Roberts’ objections and calculated that his sentencing range under the United States Sentencing Guidelines was 70-87 months’ imprisonment. The district court then varied below the Guidelines and sentenced Roberts to 48 months’ imprisonment.
II.
Roberts contends that the district court erred in denying his motion for judgment of acquittal because the government presented insufficient evidence to sustain a conviction on the substantive wire fraud counts. Specifically, he argues that “the government failed to demonstrate that any omission by [Roberts] on any loan applications was material to the lender‘s decision to extend the loans in question, or that such omissions were intended to defraud.” We disagree.
Pursuant to
As a threshold issue, Roberts argues that “[t]he government‘s evidence pertaining to the substantive counts of wire fraud (Counts II through V) was limited to conduct pertaining to two specific residential real estate transactions that ‘happened at about the same time.‘” However, at trial, the government presented evidence of conduct pertaining to ten additional transactions beyond the two identified by Roberts. While the government may have presented this evidence in support of the conspiracy count on which Roberts was acquitted, the jury was still permitted to consider the ten additional transactions in determining whether Roberts had the requisite intent to commit wire fraud related to the two specific real estate transactions. United States v. Porter, 441 F.2d 1204, 1210 (8th Cir. 1971) (“The cases are legion that intent may properly be inferred from all the facts and circumstances surrounding the transactions.“); see also United States v. Trejo, 831 F.3d 1090, 1093 (8th Cir. 2016) (“When considering a jury verdict that a party characterizes as inconsistent, we ask ‘whether the government presented sufficient evidence to support the conviction. We are reluctant to delve into the minds of the jurors to determine the reasons for apparently inconsistent verdicts.‘“). (citation omitted).
Roberts next argues that his forthrightness about his finances-specifically, his disclosure of five million dollars in loans on 13 houses-negated any inference of his intent to defraud by omitting additional loans from loan applications. In making this argument, Roberts relies heavily on this Court‘s ruling in Stacks. There we upheld the district court‘s grant of a new trial on the defendant‘s convictions for wire fraud. Stacks, 821 F.3d at 1046. In ordering a new trial, the district court noted “that Stacks‘s forthrightness about his finances ... negated any inference of intent to defraud ... by omitting the additional loans.” Id. at 1045. In the instant case, the government did not demonstrate Roberts’ intent to defraud solely by his failure to disclose other loans. The government also presented evidence that Roberts reported substantially different levels of income on different loan applications, claimed he would be an owner-occupant on four separate loan applications, and did not disclose that he was receiving money back from Penrod after closing. Further, in Stacks, the district court concluded that the testimony of a loan officer, which was the most damning evidence of the defendant‘s guilt, was not credible. Id. Roberts has not raised any such credibility issues. Accordingly, this case is distinguishable from Stacks. The government presented sufficient evidence for a reasonable jury to find that Roberts intended to defraud lenders.
Roberts makes a number of other arguments in his brief including that the payments he received from Penrod were not illegal, that Penrod had complete discretion over the payments and Roberts did not know if he would receive them, and that Roberts never asked anyone to misrepresent information on any documents. These arguments appear to provide further support for his primary contention that “the government failed to demonstrate that any omission by [Roberts] on any loan applications was material to the lender‘s decision to extend the loans in question, or that such omissions were intended to defraud.” Roberts appears to briefly question whether there was sufficient evidence to prove that he was involved in a scheme to defraud, but does not develop this argument, and so we do not consider it. Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006) (holding that argument was waived “because the issue was not developed in ... briefs as required by
Accordingly, the district court did not err in denying Roberts’ motion for judgment of acquittal.
III.
Roberts contends that the district court erred in relying on acquitted conduct in calculating his sentencing range under the United States Sentencing Guidelines. We disagree. Whether or not the district court relied on acquitted conduct, “[i]t is settled in this circuit ... that the Constitution does not preclude a district court from considering acquitted conduct in sentencing a criminal defendant.” United States v. Papakee, 573 F.3d 569, 576 (8th Cir. 2009).
Accordingly, the district court did not err in sentencing Roberts.
IV.
The district court‘s judgment is affirmed in all respects.
P.K. HOLMES, III
CHIEF JUDGE