Case Information
*1 Before F LAUM , R OVNER , W ILLIAMS , Circuit Judges . W ILLIAMS Circuit Judge
. Like many couples, Traci Vince Anderson wanted buy home their family. With help friend, Samantha Johnson, assistance shady broker, Anderson were able obtain finance home purchase—albeit falsified application. Several years after bought home, convicted Johnson charges mortgage fraud conspiring to commit mortgage fraud.
On appeal, Gray Johnson argue failed to present sufficient to prove they conspired to commit mortgage fraud beyond a reasonable doubt. But we think had enough to conclude conspired with their mortgage broker to submit included statements they knew to be order to influence lender’s decision. contend district court abused its discretion by denying them opportunity present testimony other borrowers show their mortgage broker’s history duping clients. Because broker’s wrongdoing very probative Gray’s guilt, acted within discretion when it granted government’s motion limine ex clude borrowers about broker’s teractions with them. We affirm.
I. BACKGROUND In Gray, legal secretary, Anderson, her boy friend, decided purchase $322,000 home Prairie du Sac, Wisconsin. They planned live home with children, with Anderson paying half mortgage. sought financing assistance Brian Bowling, broker who owned company called Platinum Concepts. Due Anderson’s bad credit, however, couple qualify financing. then tried qualify her brother, but too were unsuccessful.
On October friend Samantha sent an email offering her co borrower, under condition *3 3 Nos. ‐ & 11 ‐ 3018 Gray provide her with a written promise she would only be loan as a co ‐ borrower for two years. (Johnson received finder’s fee Shannon Barman, who was general contractor, daughter builder/seller, childhood friend.) forwarded email asked whether could apply for loan her as non ‐ occupant borrower. Bowling, who be lieved arrangement feasible, informed she now qualify for non ‐ occupant , stated ‐ income loan. After reviewing proposed terms loan, however, decided against applying because monthly pay ment too high. then offered an owner ‐ occupy , stated ‐ income for her Johnson. Although own er ‐ occupy required obtain larger mortgage finance their home purchase, de cided go ahead apply anyway. sent their ap plication Fremont Investment & Loan, federally insured lender who specialized stated ‐ income loans, known “liars’ loans” because lender typically verify financial information supplied by applicants such fi nancing. See Phillips , ‐ ‐ 3824, U.S. App. LEXIS at *4 Sept. 4, 2013) (en banc).
‐ ‐ that, at some point prior to the closing, he had telephone conversation with both to review the information he supplied in their final loan application. According to Bowling, he told both women would be listed occupants the property, their incomes would be inflated, what the monthly payment for the loan would be. this to avoid any possibility surprised by the application information the loan terms refuse go forward the closing.
Shortly before closing, held an in person meeting at office Gray, Johnson, builder/seller Dick Hinrichs, Barman review terms proposed owner occupy loan discuss need for second mortgage Hinrichs. Although Hinrichs initially balked second mortgage because terms required him lend more than expected, ultimately relented even agreed forgive $32,000 $48,000 second mortgage. parties signed evening forward dated it November date closing.
Gray, Johnson, Bowling, Hinrichs, Barman, clos ing agent all attended closing. ini tialed every page final signed it four places, including once above written notice it raised such an argument here. Instead, their appeal challenges sufficiency sustain conspiracy verdict exclusion extrinsic related broker’s bad preparing fraudulent documents clients. Given differ ences claims raised each case, we do rely Phillips de ciding this appeal.
a federal crime knowingly make a false statement on a loan application. closing proceeded without incident, and Johnson received a $273,700 mortgage from Fremont and, least paper, a $48,300 second mortgage the seller. Johnson acknowledge the final loan appli cation they initialed signed contained a number of false statements. Among other untrue assertions, both Johnson stated they: earned combined $11,000 per month; would live the home together primary residence; would make the mortgage payments gether; would second mortgage the seller $48,300 cover difference between purchase price home mortgage received Fremont. In reality, had combined monthly income approximately $5,000, living home contributing mortgage, seller forgave $32,000 $48,300 mort gage before closing.
Mortgage broker became subject federal investigation into his involvement fraud. Sen tenced fifty one months’ imprisonment, agreed testi fy against Gray, Johnson, clients, hopes hav ing his sentence reduced. At June trial, about scheme falsify documents, discussions regard ing information included application, meeting where parties discussed details scheme. He not, however, remember dates these interactions.
On cross examination, admitted to submitting loan applications, inflating applicants’ income, exag gerating assets, understating liabilities, falsifying job titles employment histories, misrepresenting sources down payments, engaging silent mortgages. Counsel also impeached with specific instances untruthful conduct including forging signatures on loan documents.
The called several witnesses, including Anderson, Hinrichs, general contractor, closing agent. Anderson testified Johnson live at home or contribute plan have her on for two years until improve credit score. The closing agent testified Johnson she followed her standard practice closing, review each document buyer, provide brief overview, allow buyers time read document so choose.
Neither nor Johnson testified. They called few witnesses, including two former officers who worked for who truthful per son by reputation or personal opinion.
The convicted both counts, court sentenced two months’ imprisonment one day confinement. dered both women pay $66,377 restitution. appeal, challenging sufficiency conspiracy count court’s decision exclude extrinsic history duping innocent borrowers. *7 7 11 3018
II. ANALYSIS A. Sufficient Evidence Support Conspiracy Convictions first argue that evidence before the
jury insufficient sustain a conviction on conspira cy count. defendant challenging a jury verdict must demonstrate no reasonable jury could reached same verdict. United States v. Farris , F.3d 615, (7th Cir. 2008). We will “overturn a conviction based insufficient only record is devoid evidence a reasonable find guilt beyond a reasonable doubt.” United States v. Hills , F.3d 619, (7th Cir. 2010).
Under U.S.C. § 1014, it crime “knowingly make[] any false statement report … purpose influencing any way action of” federally insured in stitution. To satisfy burden showing appellants engaged conspiracy violate § must prove (1) conspiracy charged indictment existed; (2) each defendant knowingly became member conspiracy an intention further conspiracy; (3) member conspiracy committed an overt act furtherance conspiracy. Lee 2009). government’s sufficient support jury’s verdict. First, he brokered issue, reviewed statements made final ‐ ‐ the closing, and that Gray and Johnson agreed to those falsi ‐ ties to obtain the desired loan strongly support the existence the conspiracy knowingly make false representations influence the lender’s decision. The government also pre sented that both Gray and Johnson knowingly par ticipated the conspiracy. testified that he, Gray, Johnson, Hinrichs met before the closing discuss the terms the owner occupy loan the Hinrichs. He also Gray turned down non occupant borrower loan (in favor owner occupant loan) because monthly payments were too high. In addi tion Bowling’s testimony, government introduced October email Johnson which Johnson fered on loan two years which then forwarded Bowling. government offered into ev idence final loan application, included false statements initials signatures. Finally, proved overt furtherance conspiracy October email signed submitted application. reasonable jury found guilty conspiracy based this evidence.
On appeal, contend never reviewed falsified Bowling’s contrary is credible. Without testi mony, argue, government’s conspiracy is insufficient. This argument is unpersuasive.
To extent credited testimony, we will only set credibility determination aside testi mony “exceedingly improbable.” Smith 2009) (internal quotation marks and citations omitted). Exceedingly improbable testimony is that which is “internally inconsistent implausible on face.” Cardona Rivera 1990).
Gray and Johnson repeatedly characterize Bowling’s tes timony as “internally inconsistent.” This characterization is inaccurate. fairer representation Bowling’s testimony be “imprecise.” For example, admitted not recall dates key meeting and phone conversations and Johnson. But consistently testified meeting phone calls occurred, Johnson presented no evidence contrary. Bowling’s inability recall dates does not make testimo ny internally inconsistent. Johnson argue Bowling’s testimony
improbable because failed introduce evi dence confirming phone calls between Defendants. According reasoning, since govern ment did not introduce corroborating phone calls, they must happened. But not re quired make same leap logic.
Key documents witnesses corroborated many portions Gray’s involvement conspiracy. The most important piece containing numerous statements Johnson initialed signed presence others closing. Octo ber email showed terms actual agreement tween writing. And boyfriend live couple planned replace within two ‐ ‐ years. Both Hinrichs and Barman that they met with Gray, Johnson, Bowling’s office shortly be ‐ fore closing discuss from Hinrichs. Furthermore, before jury showed that Gray her boyfriend found home, that recruited other potential co borrowers, John son reached out received finder’s fee. emphasize Bowling’s lack of credibil ity, pointing specifically his admission of illegal activity. The jury aware of Bowling’s fraud dishonesty, defense counsel impeached him specific instances un truthful conduct. That credited his testimony spite his history not grounds for overturning jury’s verdict. See, e.g., Wilson 1994) (holding will not considered credible matter law even “totally uncorroborated comes an admitted liar, convicted felon, large scale drug dealing, paid government informant”).
B. Excluding Extrinsic Evidence Dealings Other Borrowers Was Not an Abuse Discre tion
Before trial, filed motion limine preclude introducing extrinsic evi dence prepared applications oth er borrowers who were aware doing so. The court granted motion, explaining could cross examine about prior bad acts whether duped borrowers but under Federal Rule Evidence 608(b), prove those bad extrinsic evidence—namely, borrowers duped by Bowling. rejected *11 11 11 3006 11 3018 argument that such ad ‐ missible under Rule 404(b). challenge that decision, arguing that court’s refusal to allow them to in ‐ troduce evidence of past dealings unsuspect ing borrowers prevented them negating one of key elements of government’s case: knowingly par ticipated conspiracy.
“We review a district court’s decision admit or exclude evidence abuse of discretion.” United States v. Boros , F.3d 901, (7th Cir. 2012). Federal Rule Evidence 404(b) generally prohibits “[e]vidence a crime, wrong, or act … prove a person’s character order show particular occasion person acted accordance character.” That rule allows such evidence limited situa tions, namely prove “motive, opportunity, intent, prepara tion, plan, knowledge, identity, absence mistake, or lack accident.” Fed. R. Evid. 404(b)(2). defendant can “introduce evidence
witness’s bad tends negate defendant’s guilt.” United States v. Sanders , F.3d 976, (7th Cir. 2013). When defendant seeks admit this “non defendant” “reverse” 404(b) evidence, “a should balance evidence’s probative value under Rule against considerations such as prejudice, undue waste time[,] confusion issues under Rule 403.” United States v. Reed , F.3d (7th Cir. 2001); see Seals 2005). We have ed most cases “the only serious objection [reverse 404(b)] probative value is slight, it may just amount pointing finger someone else who, hav ing criminal record, might committed crime defendant accused of committing.” United States v. Murray , F.3d (7th Cir. 2007).
The district court not abuse its discretion in exclud ‐ ing extrinsic evidence of Bowling’s prior instances of falsify ‐ ing documents without applicants’ knowledge. The probative value of reverse 404(b) evidence here was slight. Whether had pattern practice of pre ‐ paring fraudulent applications defrauded both lenders borrowers issue this trial. dis trict court acted within its discretion when it determined allowing extrinsic evidence prove Bowling’s bad would distract jurors issue hand—whether knew documents initialed signed contained statements. See Alayeto 2010) (affirming exclusion reverse 404(b) evidence light “danger jurors would distracted central issue case— [defendant]’s intent—by prolonged discussions [accom plice]’s post arrest activities”). Even had history duping borrowers, still have will ingly conspired him submit falsified applica tion. Their knowledge—not his history—was what jury needed determine. See, e.g., id. (affirming trial court’s ex clusion instances accomplice convinced drug mules transport drugs when “contested may have demonstrated [accomplice’s] intent deliver narcotics, but it been significantly probative [defendant]’s intent”).
Furthermore, within discretion excluding this extrinsic because testi mony made well aware capacity defraud ing others without knowledge. On cross examination, Bowling admitted committing number mort gage fraud over years, including falsifying income val ues, forging signatures, mischaracterizing occupan cy status applicants. Although never these things without applicants’ knowledge, still aware had previously made material misrepresentations lenders lenders had no idea lied them. In light jury’s awareness Bowling’s nature serial fraudster, extrinsic evi dence sought introduce added little jury’s understanding volvement fraud conspiracy.
III. CONCLUSION For reasons set forth above, we AFFIRM judg ment court.
[1] A recent en banc decision dealt another instance alleged mort gage fraud involving same dishonest mortgage broker this case. See Phillips U.S. App. LEXIS at *2 4. appellants Phillips challenged exclusion regarding statements their broker made them concerning meaning certain terms importance lender attach certain information application. See id. at *9 13. majority this found this exclusion erroneous. Id. *21 22. (continued)