UNITED STATES of America, Plaintiff-Appellee v. Brandy Marie THOMAS, Defendant-Appellant.
No. 14-1599.
United States Court of Appeals, Eighth Circuit.
Submitted: March 13, 2015. Filed: July 2, 2015.
791 F.3d 889
Jana K. Harris, Cameron C. McCree, Asst. U.S. Attys., Little Rock, AR (Christopher R. Thyer, U.S. Atty., on the brief), for appellee.
Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL,1 District Judge.
SHEPHERD, Circuit Judge.
Brandy Thomas was convicted, after a jury trial, of four counts of wire fraud based on a scheme she perpetrated to defraud mortgage lenders by submitting false income information on loan applications. The district court2 sentenced Thomas to 48 months imprisonment followed by 18 months supervised release and ordered her to pay restitution. Thomas appeals, arguing the district court erred in two of its evidentiary rulings, in the instructions it gave to the jury, in allowing the government to constructively amend the indictment, and in issuing an Allen3 charge to the jury and polling individual jurors. We affirm.
I.
A grand jury indicted Brandy Thomas on four counts of wire fraud for allegedly engaging in a scheme to defraud mortgage lenders between June 2006 and December 2006. The government alleged that Thomas defrauded lenders by submitting false income information on loan applications in relation to the purchase of three properties and the refinancing of one property, specifically alleging Thomas overstated her income, provided fictitious rental agreements to support the overstated income amount, and failed to list a mortgage debt on loan documents.
II.
We first consider whether the district court erred in the instruction it gave the jury regarding the “intent to harm” element of wire fraud. Before submitting the case to the jury, the district court considered proposed jury instructions from both Thomas and the government concerning the “intent to defraud” element of the wire fraud offense. The district court rejected Thomas‘s proposed instruction and instead used an instruction that closely followed the Eighth Circuit Model Jury Instruction for mail fraud. Thomas asserts that the district court erred in refusing to instruct the jury that Thomas must have contemplated, at the
Securing a conviction for wire fraud requires the government to prove that: (1) the defendant devised or joined a scheme to defraud, (2) the defendant intended to defraud, (3) it was reasonably foreseeable that interstate wire communications would be used, and (4) wire communications were, in fact, used.
Thomas argues that the district court should have relied upon United States v. Jain, 93 F.3d 436 (8th Cir.1996), in issuing its instruction on the “intent to defraud” element. In Jain, our court reversed a defendant‘s conviction for mail fraud when the government failed to provide any evidence that the victims suffered tangible harm or to otherwise prove the defendant‘s fraudulent intent. Id. at 441-42. Thomas asserts that this case requires the government to prove an intent to cause harm, rather than a simple intent to defraud. See id. at 441. But Jain is an honest-services fraud case that is distinct from the wire fraud charges against Thomas. See id. Thus, Jain is inapplicable, despite Thomas‘s assertions to the contrary. Here, the district court instructed the jury that “[t]o act with intent to defraud means to act knowingly and with the intent to deceive someone for the purpose of bringing about some financial gain to oneself or another to the detriment of another person.” R. Doc. 108, at 20. This instruction is in accordance with Eighth Circuit law. See Louper-Morris, 672 F.3d at 556. As such, the district court did not abuse its discretion in the instruction it gave the jury regarding the “intent to defraud” element of wire fraud.
III.
We next consider whether the district court erred in allowing the government to introduce evidence of a separate, subsequent scheme in which Thomas attempted to defraud mortgage lenders. Prior to trial, Thomas filed a motion in limine seeking the exclusion, pursuant to
Under
The government used this evidence for the permissible purposes of showing intent and lack of mistake rather than the impermissible purpose of propensity. The evidence also meets the other requirements for admissibility. First, the evidence is relevant because it helps prove a consequential issue in the case: whether Thomas intended to act fraudulently. See
Second, the subsequent fraudulent scheme is similar in kind and not too remote in time to be admitted. The schemes are similar because they both involve the misrepresentation of income to fraudulently obtain loans. The subsequent scheme is not too remote in time because the conduct for which Thomas was charged occurred in 2006 and the transaction at issue here occurred in 2007. No definitive rule governs how close to the charged event another wrong or act must be and courts should apply a reasonableness standard on a case-by-case basis. See United States v. Thomas, 398 F.3d 1058, 1063 (8th Cir.2005). A one-year period between schemes satisfies this reasonableness standard. See, e.g., United States v. Wint, 974 F.2d 961, 967 (8th Cir.1992) (holding that a five-year lapse between prior act and charged crime was not too remote in time to be admitted under Rule 404(b)); see also United States v. Franklin, 250 F.3d 653, 659 (8th Cir.2001) (“The closer in time to the crime charged, the more likely the evidence is to be admissible; but we have approved the admission of other crimes’ evidence for acts committed up to 13 years before the crime charged.“).
Third, sufficient evidence exists to allow the jury to find that the subsequent scheme occurred. Thomas argues, in part, that the district court should not have admitted the evidence because the grandmother made inconsistent statements, namely telling Thomas‘s then-attorney that the mortgage company, not Thomas, had encouraged her to submit false documents. But the district court should not make credibility determinations when deciding whether to admit evidence under Rule 404(b). See Huddleston v. United States, 485 U.S. 681, 687-90, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (explaining that a district court should not engage in assessing a witness‘s credibility when making an admissibility determination under Rule 404(b)).
Finally, the risk of prejudice does not substantially outweigh the probative
IV.
We now consider whether the district court erred in allowing the government to introduce evidence related to Thomas‘s unfiled 2006 tax return. In another motion in limine, Thomas sought the exclusion of an unfiled 2006 tax return and related testimony, arguing it was irrelevant and prejudicial because it had never been filed with the IRS or submitted to mortgage lenders. Thomas‘s accountant prepared the tax return and gave it to Thomas to file manually, although Thomas never made such a filing. The district court denied the motion, allowing the tax return as evidence of Thomas‘s actual income and determining that it was not unfairly prejudicial. Thomas asserts that the admission of the tax return was in error because it was both irrelevant and unfairly prejudicial as it was never filed and thus never reported as Thomas‘s actual income. We review a district court‘s evidentiary rulings for abuse of discretion, reversing “only when an improper evidentiary ruling affects the substantial rights of the defendant, or the error had more than a slight influence on the verdict.” Finan v. Good Earth Tools, Inc., 565 F.3d 1076, 1080 (8th Cir.2009).
Under the Federal Rules of Evidence, relevant evidence is generally admissible unless the Constitution, a federal statute, another rule of evidence, or other Supreme Court Rule requires its exclusion.
Thomas‘s 2006 unfiled tax return is relevant evidence because Thomas‘s actual income is integral to the charges against her. The government alleged Thomas misrepresented her income for 2006 on loan documents, and the unfiled tax return makes the government‘s allegations more probable. See
V.
We next consider whether the district court erred by allowing the government to introduce evidence and argue during closing that Thomas should be convicted based on a failure to disclose debts. At trial, Thomas objected to the government‘s introduction of evidence related to unlisted debts on her loan application, asserting that the introduction of such evidence amounted to a constructive amendment to the superseding indictment. Thomas asserted that the government impermissibly argued that the jury could convict Thomas on Counts II and III of the indictment based on evidence of an unreported debt, evidence which was only referred to in Count I of the indictment. The district court overruled this objection, finding no constructive amendment occurred. Thomas asserts that the district court erred because it allowed the jury to convict Thomas of two counts in the indictment based on evidence only articulated in one separate count, resulting in a constructive amendment.
A constructive amendment of an indictment is a direct violation of the Fifth Amendment and is reversible error per se. United States v. Harris, 344 F.3d 803, 804 (8th Cir.2003) (per curiam). “In reviewing an appeal based on a claim of constructive amendment, we consider whether the admission of evidence or the jury instructions created a ‘substantial likelihood’ that the defendant was convicted of an uncharged offense.” United States v. Whirlwind Soldier, 499 F.3d 862, 870 (8th Cir.2007).
“A constructive amendment occurs when the essential elements of the offense as charged in the indictment are altered in such a manner—often through the evidence presented at trial or the jury instructions—that the jury is allowed to convict the defendant of an offense different from or in addition to the offenses charged in the indictment.” Id. Here, no constructive amendment occurred because Thomas was not convicted of a crime different from those charged in the indictment. Thomas was charged with and convicted of wire fraud and the additional evidence did not change the essential elements of this crime. This case is distinct from cases where courts have found constructive amendments. See, e.g., Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (finding constructive amendment when jury could have convicted defendant based on interference with shipments into or out of state when indictment only alleged interference with shipments into state); United States v. Yeo, 739 F.2d 385, 386-87 (8th Cir.1984) (finding constructive amendment when jury could have convicted defendant of extortion for collecting debt from individuals other than the one named in the indictment).
The district court considered whether the introduction of the unreported debts amounted to a variance, ultimately concluding that no fatal variance had occurred:
[W]e are talking about these applications that Ms. Thomas filled out on these four loans. It‘s not something unexpected, given that the documents came from her own hand and that Ms. Thomas‘s lawyers have had all of the documents from the beginning. And, in fact, those documents are in evidence without objection from Ms. Thomas. The fact that they are in evidence, it seems to me, means that whatever they say, whatever is in there, is in play.... There is some difference, there is some variance between the words of the indictment and the proof that‘s proposed to come in, but I do not believe that it is a fatal variance or that it is overly prejudicial to Ms. Thomas, given the source of the variance in those documents and given the law [of the Eighth Circuit].
R. Doc. 156, at 316-17.
We agree that no fatal variance occurred because, even with the introduction of evidence not specifically mentioned in the indictment in relation to these two counts, Thomas was fully and fairly apprised of the charges she had to defend against at trial. The documents at issue had already been entered into evidence and the indictment mentioned the specific allegation with respect to one count. See Begnaud, 783 F.2d at 148 (finding no fatal variance when the indictment set out two specific representations made in furtherance of a scheme to defraud and prosecution offered evidence of, and jury instruction allowed jury to consider, other misrepresentations defendant made). And the government never wavered in the theory of the case it presented at trial that Thomas committed wire fraud by misrepresenting her income on loan documents. See United States v. Adams, 604 F.3d 596, 600 (8th Cir.2010) (“We conclude no variance occurred either, particularly because the government never wavered in its theory of the case at trial....“). Because Thomas‘s argument fails under either a constructive amendment or variance theory, we affirm the district court on this claim.
VI.
Finally, we consider whether the district court erred in polling individual jurors and issuing an Allen charge to the jury. After roughly six hours of deliberation, the jury sent a note to the court indicating that it was deadlocked. The court brought the jury back to the courtroom and began polling individual jurors
“An Allen-charge is a supplemental jury instruction that advises deadlocked jurors to reconsider their positions.” United States v. Walrath, 324 F.3d 966, 970 (8th Cir.2003) (internal quotation marks omitted). “Supplemental jury instructions are permissible, so long as they are not coercive.” United States v. Ybarra, 580 F.3d 735, 738 (8th Cir.2009). “[F]our elements bear on whether an Allen charge had an impermissibly coercive effect on the jury: 1) the content of the instruction, 2) the length of deliberation after the Allen charge, 3) the total length of deliberation, and 4) any indicia in the record of coercion or pressure upon the jury.” United States v. Thomas, 946 F.2d 73, 76 (8th Cir.1991) (internal quotation marks omitted). Additionally, an inquiry as to the division of the jury for the purposes of determining if further deliberations would be fruitful is not coercive in the same manner as an inquiry seeking to determine how the jury stands on the merits. See Lowenfield v. Phelps, 484 U.S. 231, 240, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). And Allen charges and accompanying statements are less likely to be coercive when they do not single out a particular side of deliberations. See United States v. Washington, 255 F.3d 483, 485-86 (8th Cir.2001) (finding Allen charge was not coercive when instruction did not reference either party or direct the jury to find for a particular party).
Nothing in the record indicates that the Allen charge coerced the jury into returning a verdict. First, the content of the charge reminded the jurors of their obligations to examine the evidence and questions submitted to them with a mind toward reaching an agreement, but reminded them that they should not surrender their honest convictions and give in to opposing opinions. The Allen charge also reminded the jurors that “a hung jury is acceptable to the law, just like a verdict of not guilty or guilty. All three of those are acceptable outcomes in the case.” R. Doc. 159, at 837. Second, the jurors deliberated for a further two hours after the Allen charge, indicating that they did not feel coerced into immediately returning a verdict. Third, the total length of deliberations was roughly eight hours: six hours prior to the Allen charge and an additional two hours after the instruction. The trial lasted four and a half days. The length of the trial and the total period of deliberation were not so disproportionate as to raise an inference of coercion. See Thomas, 946 F.2d at 76 (finding no inference of coercion when jury deliberated for a total of nine hours after a two-day trial); United States v. Smith, 635 F.2d 716, 720-22 (8th Cir.1980) (finding four hours of total deliberation for a two-day trial did not raise an inference of discrimination). Finally, there is no other “indicia in the record of coercion or pressure upon the jury.” The district court‘s polling of individual jurors was simply an attempt to determine whether further deliberations would be helpful in reaching a verdict. The judge intended to poll the entire jury, but only needed to poll three jurors before concluding that further deliberations could
VII.
For the foregoing reasons, we affirm the judgment of the district court.