United States v. Brodie

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2007 Decided May 6, 2008

No. 05-3131

UNITED STATES OF AMERICA,

APPELLEE

v.

WILBERT S. BRODIE A/K/A KHARII WILSTON

ANTHONY BRODIE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00190-01)

A. J. Kramer, appointed by the court, argued the cause as

amicus curiae in support of the appellant.

Wilbert S. Brodie was on brief, pro se.

John P. Mannarino, Assistant United States Attorney,

argued the cause for the appellee. Jeffrey A. Taylor, United

States Attorney, and Roy W. McLeese III and Thomas J. Tourish,

Jr., Assistant United States Attorneys, were on brief. Ann K.

Simon, Assistant United States Attorney, entered an appearance.

Before: HENDERSON, GARLAND and BROWN, Circuit Judges.

2

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: A jury found

appellant Wilbert Brodie (Brodie) guilty of conspiracy to make

false statements to financial institutions to obtain mortgage

loans in violation of 18 U.S.C. § 371 and wire fraud in violation

of 18 U.S.C. § 1343. Brodie was sentenced to 57 months’

imprisonment and ordered to pay $355,449.70 in restitution.

Brodie appeals his conviction on ten grounds in five pro se

filings. Additionally, the Federal Public Defender (Amicus)

filed an amicus brief claiming that the district court committed

three errors: (1) sustaining an objection to defense counsel’s

closing argument; (2) denying Brodie’s new trial motion based

on an alleged Brady violation; and (3) applying a four-point

“leader or organizer” enhancement to Brodie’s offense level

under the United States Sentencing Guidelines (Guidelines or

USSG). Amicus also asserts that Brodie’s trial counsel provided

ineffective assistance of counsel because he failed to request a

downward departure based on Brodie’s immigration status

pursuant to United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994).

For the reasons set forth below, we affirm Brodie’s conviction

and sentence.

I.

Pursuant to a second superseding grand jury indictment filed

on August 12, 2004, Brodie was charged with four counts

relating to a mortgage flipping scheme: one count of conspiracy

to make false statements to financial institutions to obtain

mortgage loans and to use wire transmissions in furtherance of

a scheme to defraud and obtain money and property under false

pretenses in violation of 18 U.S.C. § 371 and three counts of

wire fraud in violation of 18 U.S.C. § 1343. The indictment also

sought the forfeiture of $239,970.56 pursuant to 18 U.S.C.

§ 982(a)(2)(A), which requires “a person convicted of a

violation of, or a conspiracy to violate [18 U.S.C. § 1343],

affecting a financial institution . . . [to] forfeit to the United

3

States any property constituting, or derived from, proceeds the

person obtained directly or indirectly, as the result of such

violation.” 18 U.S.C. § 982(a)(2)(A).1 Two other participants

in the scheme, Olurotimi Padonu (Padonu) and Sarafa Kareem

(Kareem), were charged with the same four counts as Brodie as

well as an additional conspiracy count based on a separate fraud.

A. Overview of the Scheme

Brodie was the president, CEO and only employee of a shell

company named Inter Communication Network (ICN). The

charged scheme involved ICN’s purchase of dilapidated real

estate properties—the second superseding indictment focused on

eight properties purchased between December 1995 and June

1997—and the subsequent resale of the properties to Brodie at

inflated values.2 Brodie simultaneously applied for a loan based

on the inflated resale price, using a portion of the loan to cover

ICN’s initial purchase of the property at the lower value and

keeping the remaining funds for himself. For example, on July

1

Brodie waived his right to a jury trial on the forfeiture count.

2

The eight properties were 4026 36th Street (36th Street property),

106 15th Street (15th Street property), 3965 Martin Luther King Jr.

Ave. (MLK property), 312 R. Street ( R Street property), 127 16th

Street (16th Street property), 811 7th Street (7th Street property), 26

Bates Street (Bates Street property) and 1518 5th Street (5th Street

property). At trial, the Government also introduced evidence

regarding ICN’s purchase and resale to Brodie of a ninth property

located at 112 18th Street (18th Street property) pursuant to Federal

Rule of Evidence 404(b). See Fed. R. Evid. 404(b) (“Evidence of

other crimes, wrongs, or acts . . . may . . . be admissible . . . as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident . . . .”). ICN was the initial

purchaser of all of the properties except the 36th Street property,

which was purchased by Dorothy Wallace, the mother of Brodie’s

child.

4

10, 1996, ICN purchased a house for $45,000 (the 15th Street

property) and resold it to Brodie for $125,000 on the same day.

Brodie obtained a personal loan based on the inflated resale

price, using part of the loan to cover ICN’s $45,000 purchase

price and keeping the remainder of the loan proceeds for

himself. Over the course of the scheme, Brodie obtained loans

totaling $867,500.

To obtain a loan based on the inflated resale price, Brodie

had to provide a false appraisal and other documentation to the

mortgage lender—Brodie therefore recruited the assistance of

several co-conspirators. Esther Stroy-Harper (Harper), a

licensed real estate appraiser in Maryland and Washington,

D.C., provided a false appraisal for each of the nine properties

at Brodie’s direction. Harper testified at trial that, although an

appraiser is hired by the seller and should not meet with the

buyer, she met with Brodie before appraising each property.

Harper stated that Brodie directed her to make an inflated

appraisal so that Brodie could obtain a loan at the higher value.

For example, Harper testified that Brodie paid her $300 to

appraise a property (the 6th Street property) at $125,000 even

though the property was not worth more than $55,000. Harper

justified each inflated appraisal by comparing the subject

property to other properties in “neighborhoods that were better

and higher in value.” Trial Tr. 378, Jan. 12, 2005. Harper also

testified that Brodie asked her to omit from the appraisals the

original contract price on ICN’s purchase of the property and the

fact that several of the properties had been sold to ICN at

foreclosure and at one-half of the value of her appraisal.

Mortgage brokers Padonu and Kareem, who pleaded guilty,

assisted Brodie by preparing false mortgage applications and

submitting the applications to mortgage lenders at Brodie’s

direction. Additionally, George Akinmurele, a CPA, prepared

false tax documentation for Brodie’s mortgage loan applications.

5

Bank records show that Brodie paid Padonu and Akinmurele for

their services.

B. Trial

The jury trial began on January 10, 2005. FBI Special Agent

Christine Taylor testified, summarizing the transactions relating

to the eight properties charged in the scheme.3 Taylor explained

that ICN initially purchased seven of the eight properties and

promptly resold them to Brodie at higher values.

Bill Brewster, an underwriting expert at the Federal National

Mortgage Association (Fannie Mae), testified as an expert

witness for the Government regarding loan underwriting and

underwriting guidelines. Brewster described the loan

application and approval process in general and described how

a false appraisal is used to inflate the value of a loan. In

particular, Brewster testified that a loan amount is based on an

independent appraisal of the property and the sales price. He

further explained that the lender relies in part on the sales

history of a property because any significant change in value can

indicate that the property is inflated in value. Brewster noted

that a lender would not know if ICN’s original purchase of the

property took place on the same day as the resale to Brodie and

the issuance of the loan unless the appraiser disclosed this

information to the lender. Brewster also stated that a lender

would not make a loan if it discovered that the loan was being

used to pay for the seller’s (ICN’s) original purchase of the

property.

Six real estate brokers and appraisers who had participated

in transactions involving the various properties testified about

the values of the properties, the sale of the properties to the shell

3

Taylor’s testimony was based on loan files, property settlement

files and bank files which the Government introduced into evidence

without objection.

6

company and Brodie’s involvement with the sales. Harold

Huggins appraised the 15th Street property on July 28, 1995 at

$39,000. ICN bought the property one year later for $45,000

and sold it to Brodie on the same day for $125,000. Robert

Casper (Casper), a real estate agent and former appraiser

specializing in bank foreclosures, valued the same property in

1999 at $64,000. Casper also appraised the 5th Street property

on September 12, 1996 at $48,000—ICN purchased the property

on April 29, 1997 for $56,000 and resold it to Brodie for

$130,000 less than six months later. Casper further testified that

several of the appraisals Brodie used to obtain loans were

inflated. For example, an appraisal of the 5th Street property

done on July 3, 1997 estimated the value of the property at

$132,000. Casper explained that even if the property had been

renovated after ICN’s April 1997 purchase for $56,000—which

it was not—it would not be worth even $90,000.

Larry Gardner (Gardner) created a “broker’s price opinion”

for the sale of the 7th Street property which ICN purchased on

May 2, 1997. Gardner estimated the value of the property at

$60-65,000 and ICN purchased the property for $69,000. On the

same day, ICN resold the property to Brodie for $162,000. At

trial, Gardner reviewed a February 7, 1997 report that appraised

the property at $160,000. Gardner testified that the property was

not worth one-half of that estimate and noted that the report also

falsely stated that the property included a full basement with a

half-bath and a recreation room.

Gary Wing (Wing), who was the listing agent for the 18th

Street property, attended the settlement at which the property

was sold to ICN for $47,000 on November 19, 1996. Wing

testified that the property was not worth even half of the

$121,000 Brodie paid for it one month later. Charles

Nucciarone (Nucciarone) marketed and managed foreclosed

properties, including the 18th Street property, and testified that

it was not worth the $121,000 purchase price Brodie paid (due

7

to extensive water damage) and thus appraised it at only $60-

65,000.

Daniel Elias (Elias) inspected the R Street property and

attended the November 13, 1996 settlement at which ICN

purchased it for $60,000. Elias testified that the house was

uninhabitable at the time; nonetheless ICN resold it to Brodie on

the same day for $130,000. Elias was also the selling agent for

the Bates Street and MLK properties. ICN purchased the Bates

Street property—which, according to Elias, was also

uninhabitable—for $65,000 and resold it to Brodie for $140,000

two days later. ICN purchased the MLK property for $25,000

on November 1, 2006 and sold it to Brodie for $98,000 six days

later. Special Agent Taylor testified that the remaining two

properties, 36th Street and 16th Street, were similarly purchased

by ICN and resold to Brodie. The 36th Street property was sold

to Dorothy Wallace for $46,000 on December 27, 1995 and

resold to Brodie for $110,000 on the same day; the 16th Street

property was sold for $48,500 and resold for $125,000 on

November 20, 1996.

As noted, Harper testified that, at Brodie’s direction, she

prepared inflated appraisals for each of the properties involved

in the scheme. Harper admitted on cross-examination that she

had prepared hundreds of false appraisals apart from her work

with Brodie. Harper also admitted that she had been fired from

a previous job with a mortgage broker due to a discrepancy in

“[a]n appraisal that someone else did for a loan that [she] was

doing.” Trial Tr. 465-66, Jan. 12, 2005. Harper further testified

that she had entered into a plea agreement with the government

in 2002 which required her to testify against Brodie. Harper

acknowledged that in exchange for her plea and cooperation, the

Government agreed not to prosecute her sister for the purchase

of two properties implicated in a different mortgage fraud

scheme.

8

The Government also presented witnesses who testified

about the title searches on the nine properties and the issuance

of loans to Brodie. James Hafey and Keith Smith, employees of

title companies, testified that they received title search requests

by fax sent by Brodie for three properties he purchased: the 7th

Street property on April 24, 1997, the Bates Street property on

May 27, 1997 and the 5th Street property on June 24, 1997.

Loan officers of the companies that serviced Brodie’s loans

testified that they issued the loans without knowing that the

same properties Brodie purchased had been recently sold to ICN

for half the price paid by Brodie.

The Government concluded its case-in-chief with the

testimony of Sandra Henderson, an auditor, who reviewed all of

the bank records, settlement statements, contracts and other

documents involved in the case. Henderson testified that the

funds ICN received from its sale of the properties to Brodie

were in turn used to pay for ICN’s earlier purchase of the

property. Henderson also testified that other money ICN

received from Brodie was used to make Brodie’s mortgage

payments and to pay Brodie’s credit card and utility bills and

other personal expenses.

Brodie neither testified nor called any witnesses in his

defense and his counsel did not move for acquittal at the close

of evidence. Brodie’s closing argument focused on Harper’s

credibility. For example, defense counsel argued that Harper

had pleaded guilty to participation in a mortgage fraud distinct

from Brodie’s alleged fraud. Although Harper’s separate fraud

resulted in $1.3 million in losses, defense counsel highlighted

that Harper was required to pay only $50 per month in

restitution in exchange for her cooperation in prosecuting

Brodie. He also argued that Harper met with the Government

over thirty times and was “trained on what to say.” Trial Tr.

715, Jan. 14, 2005. Defense counsel then questioned Harper’s

9

testimony that she had first alerted investigators to Brodie in

2001:

If she first brought Brodie’s name up in November of

2001, why are we in 2005 trying this case? What

evidence did the government show you that she

mentioned Brodie’s name in November, 2001 when she

first met with investigators? He is an experienced

prosecutor, he is knowledgeable. He has put in 900

exhibits. What single document do you have to support

her conclusion that she . . . mentioned Mr. Brodie’s

name when she first met with someone? Because it

didn’t happen.

Id. at 716.

The Government objected. At the bench conference the trial

judge stated:

[Brodie] was indicted a long time ago, [and] it was

because of him that it didn’t go to trial. You are barking

up the wrong tree. And her testimony is uncontested

that she mentioned it in ‘01. An[d] the reason for why

this case did not get to trial. What do you think you are

doing? . . . You are opening up the whole thing. You

want the jury to know that he changed lawyers four

times? . . . [T]here [was] a whole series of indictments

before . . . he was indicted by himself [in] ’02. I have to

tell [the jury] to ignore this argument. . . . [T]he

testimony before them is she said it in ’01. You have

nothing to contradict that. Certainly you can’t base it on

the fact that it has taken us until ’04 to try this case.

Id. at 716-718. The court then charged the jury:

The argument about whether or not [Harper] said what

she said in ’01 and how long it has taken to get this case

to trial, it is stricken. It is of no interest to you. How

10

long this case has taken and what the reasons are and

you should not for a moment try to think about why it

has taken a while to get this case to trial. It is of

absolutely no relevance to you and the only evidence

you have before you is that she said that she mentioned

his name in November ’01.

Id. at 718. Following the instruction, defense counsel continued

to question Harper’s credibility, arguing that she was “a person

that has lied over and over and over and over again.” Id. at 719.

On January 18, 2005, the jury convicted Brodie on all four

counts.

C. Post-Trial Proceedings

Seven days after Brodie’s conviction, the trial prosecutor

wrote defense counsel, stating in part:

This afternoon, I was told that in March 2004, the FBI

received an initial report from a lender regarding a bogus

mortgage loan application on behalf of Ms. Esther

Harper’s niece. The paperwork, which was submitted to

the lender in September, 2001, predates Ms. Harper’s

cooperation with the government. The loan application

identifies Ms. Harper as the interviewing loan officer

and contains some false statements regarding the niece’s

employment. I have no information that Ms. Harper is

aware of the FBI’s receipt of the above-mentioned

report.

Letter from Jonathan N. Rosen, Assistant United States

Attorney, to Bruce A. Johnson, Jr., Defense Counsel (Jan. 25,

2005).

Brodie moved for a new trial on the ground that this newly

discovered evidence “would have been used by [Brodie] to

impeach the credibility of Ms. Harper.” Mot. for New Trial,

Feb. 4, 2005, at ¶ 1. The district court denied the motion,

11

concluding that any impeachment based on the post-trial

information would have been “merely cumulative” and “would

not have affected the ‘fairness of the trial the defendant actually

received’” because Harper “was impeached at trial based on acts

involving substantially the same type of conduct.” Order

Denying Mot. for New Trial, Apr. 7, 2005, at 1 (quoting United

States v. Smith, 77 F.3d 511, 514 (D.C. Cir. 1996)). The court

explained that “[h]aving been present for the wealth of

testimonial and documentary evidence that the government

introduced at trial, the Court can conclude, without hesitation,

that this new evidence would not have had any effect on the

jury’s ultimate verdict, and that, even without Harper’s

testimony, the government’s evidence was more than sufficient

to sustain a conviction.” Id. at 6. Moreover, the district court

denied the motion because “there is no evidence that ‘a new trial

would probably produce an acquittal.’” Id. at 1 (quoting United

States v. Williams, 233 F.3d 592, 593 (D.C. Cir. 2000))

(emphasis in original) (internal quotations omitted).

Brodie was sentenced on August 4, 2005. The Government

sought a four-level enhancement on the ground that Brodie was

“an organizer or leader of a criminal activity that involved five

or more participants or was otherwise extensive.” U.S.S.G.

§ 3B1.1(a). The district court imposed the four-level

enhancement under U.S.S.G. § 3B1.1, declaring that “[t]he

evidence is clear that the defendant . . . was the organizer and/or

leader of a criminal activity that involved five or more

participants.” Sentencing Tr. 25, Aug. 4, 2005. It explained that

the five participants included Brodie, “Mr. Padonu [and] Mr.

Kareem who were co-conspirators who pled out,” “Ms. Harper

[who] testified she was paid by the defendant and asked by him

to provide false appraisals, and [who] testified to her own

culpability in this conspiracy” and “Mr. Akinmurle [sic] [who]

was paid and provided false documentation regarding tax

documents.” Id. The court held in the alternative that “this was

also an extensive criminal activity within the meaning of 3B1.1”

12

because “[e]ight properties were involved [over] some eighteen

months.” Id. at 26. The court further noted that it was applying

“the Guideline range, although this is a case that [the court]

would be tempted to exceed the guideline range, but [the court]

did not give you notice.” Id. at 37.

At sentencing, defense counsel did not request a downward

departure based on Brodie’s immigrant status under United

States v. Smith, 27 F.3d 649 (D.C. Cir. 1994).4 The court

sentenced Brodie to concurrent 57 months’ imprisonment on

each of the conspiracy and wire fraud counts and ordered Brodie

to pay $355,449.70 in restitution pursuant to 18 U.S.C.

§ 982(a)(2)(A). Brodie filed a timely appeal on August 10,

2005.5

II.

We address separately Brodie’s closing argument, new trial

motion, sentencing, ineffective assistance of counsel and pro se

claims.

A. Closing Argument

During closing argument, defense counsel argued that

Harper was not credible because she testified that she had first

mentioned Brodie’s name to FBI investigators in 2001 yet

Brodie did not go to trial until 2005. Amicus claims that the

district court erred in sustaining the Government’s objection to

this argument. We review for abuse of discretion. See United

4

Brodie is a Jamaican national and a legal permanent resident of

the United States.

5

Two weeks later, Brodie’s trial counsel informed the Court that

he was withdrawing from further representing Brodie. We

subsequently appointed the Federal Public Defender to act as amicus

curiae to present arguments on Brodie’s behalf. Order Denying

Appellant’s Second Mot. for Release Pending Appeal, Jan. 24, 2006.

13

States v. Hoffman, 964 F.2d 21, 24 (D.C. Cir. 1992) (per

curiam).

Defense counsel is permitted to argue “all reasonable

inferences from the facts in the record.” Id. (citing United States

v. DeLoach, 504 F.2d 185, 190 (D.C. Cir. 1974)). Brodie’s

claim that the five-year span from investigation to trial

impugned Harper’s veracity, however, “moved from arguing fair

inferences from the record to arguing the existence of facts not

in the record.” Id. at 25 (emphasis in original). Not only was

there no record evidence connecting the delay to Harper’s

credibility but the record in fact indicated that Brodie himself

caused the delay by changing counsel four times. As the district

court noted, defense counsel risked prejudicing his client by

drawing attention to the delay. Trial Tr. 716-17, Jan. 14, 2005

(“What do you think you are doing? . . . You are opening up

the whole thing. You want the jury to know that he changed

lawyers four times?”). A trial court “has ‘broad discretion in

controlling the scope of closing argument,’ and an abuse of that

discretion will be found only where the effect of the trial court’s

ruling is to ‘prevent[ ] defense counsel from making a point

essential to the defense.’” Hoffman, 964 F.2d at 24 (quoting

United States v. Sawyer, 443 F.2d 712, 713 (D.C. Cir. 1971))

(alteration in Hoffman). The district court did not abuse its

discretion in refusing to permit an argument that misinterpreted

the evidence, was unrelated to Harper’s credibility and risked

prejudicing the defendant. See Sawyer, 443 F.2d at 714 (district

court properly excluded “statements that misrepresent the

evidence or the law, introduce irrelevant prejudicial matters, or

otherwise tend to confuse the jury”) (footnotes omitted).

Amicus further argues that the court’s jury instruction that

“the only evidence you have before you is that [Harper] said that

she mentioned [Brodie’s] name in November ‘01” constituted an

improper vouching for Harper’s credibility. Trial Tr. 718, Jan.

14

14, 2005. The statement did not endorse Harper’s credibility,

however, when viewed in the context of the entire instruction:

The argument about whether or not [Harper] said what

she said in November ’01 and how long it has taken to

get this case to trial, it is stricken. It is of no interest to

you. How long this case has taken and what the reasons

are and you should not for a moment try to think about

why it has taken a while to get this case to trial. It is of

absolutely no relevance to you and the only evidence

you have before you is that she said that she mentioned

his name in November ’01.

Id.

The statement in toto instructed the jury to ignore both the

length of time the case took to proceed to trial and the reason for

the delay. “[T]he only evidence you have before you” thus

referred simply to the fact that Harper said she had mentioned

Brodie’s name in 2001 and not to Harper’s credibility.

Moreover, defense counsel extensively questioned Harper’s

credibility after the instruction. See id. at 718-21. Accordingly,

the district court’s instruction, taken in context, did not imply

that Harper’s testimony was credible and thus was not an abuse

of discretion. See United States v. Schwartz, 924 F.2d 410, 424

(2d Cir. 1991) (“Having reviewed the comments of which

appellants complain in context, we do not think [the judge’s]

comments vouched for [the witness’s] credibility or were in any

event prejudicial to defendants.”) (emphasis added).

B. New Trial Motion

Amicus argues that the district court erred in refusing to

grant a new trial based on the Government’s alleged Brady

15

violation.6 While we generally review the district court’s denial

of a new trial motion for abuse of discretion, the denial of a new

trial motion based on a Brady claim is “something of a special

situation.” United States v. Oruche, 484 F.3d 590, 595 (D.C.

Cir. 2007). Under the abuse of discretion standard, we defer to

the district court’s findings of fact but “once the existence and

content of undisclosed evidence has been established, the

assessment of the materiality of this evidence under Brady is a

question of law.” Id. “[O]nce a court finds a Brady violation, a

new trial follows as the prescribed remedy, not as a matter of

discretion.” Id.

“There are three components of a true Brady violation: The

evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that

evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999). As noted

earlier, the prosecutor failed to disclose (until seven days after

trial) that in 2004 the FBI had learned that Harper had been

involved in a fraudulent loan application on behalf of her niece

in 2001. While the Government does not contest that the

information was favorable to Brodie as impeachment evidence

or that it was not disclosed until after trial, the Government does

maintain that Brodie was not prejudiced by the non-disclosure.

“To satisfy the prejudice component, the withheld evidence

must be ‘material;’ that is, there must be ‘a reasonable

probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’” United

6

The holding in Brady v. Maryland, 373 U.S. 83 (1963), “requires

the government to disclose, upon request, material evidence favorable

to a criminal defendant, including evidence held by law enforcement

officials.” United States v. Oruche, 484 F.3d 590, 596 (D.C. Cir.

2007) (citing Brady, 373 U.S. at 87).

16

States v. Johnson, 519 F.3d 478, 488 (D.C. Cir. 2008) (quoting

Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473

U.S. 467, 676 (1985))). Amicus claims that the withheld

evidence was material because it would have assisted in the

impeachment of Harper. The Government counters that the

impeachment evidence was cumulative and cumulative

impeachment evidence is not material. See, e.g., Oruche, 484

F.3d at 599-600 (failure to disclose grand jury transcript of

witness’s admission to lying in another case was not Brady

violation because witness was “thoroughly impeached” at trial

when cross-examined about prior convictions, past incidents of

lying and benefits received in exchange for testimony); United

States v. Maloney, 71 F.3d 645, 653 (7th Cir. 1995)

(impeachment evidence that lawyer witness instructed client to

lie was cumulative because witness admitted to taking

statements from other clients with full knowledge of falsity);

United States v. Kozinski, 16 F.3d 795, 818 (7th Cir. 1994)

(evidence that witness participated in two additional drug sales

was cumulative where witness admitted to being drug dealer);

United States v. Marashi, 913 F.2d 724, 732-33 (9th Cir. 1990)

(witness’s false statement was cumulative where her trial

testimony was contradicted by another prior statement). As the

district court noted, Harper was thoroughly impeached at trial.

Order Denying Mot. for New Trial at 5 (“[T]he jury was well

aware of Harper’s legacy of past untruths . . . .”). For example,

Harper admitted on cross-examination that she had prepared

hundreds of false appraisals apart from her work for Brodie and

that she had been fired from a previous job with a mortgage

broker due to a discrepancy in “[a]n appraisal that someone else

did for a loan that I was doing.” Trial Tr. 465-66, Jan. 12, 2005.

Defense counsel also questioned Harper’s motivation to testify

truthfully by highlighting the reduced sentence she was likely to

receive for testifying against Brodie.

To be cumulative, however, undisclosed impeachment

evidence must be “the same kind of evidence” as that introduced

17

at trial. United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir.

1996). In Cuffie a co-defendant, who pleaded guilty and

testified, was impeached at trial by evidence “that he was a

cocaine addict; that he was a cooperating witness; that, as the

owner of the apartment, he had an incentive to place

responsibility for the drugs on someone else; and that he had

violated his oath as a police officer to uphold the law.” Id. The

Government failed to disclose that the witness had lied under

oath in an earlier court proceeding involving the same

conspiracy. Id. We held that the witness’s testimony was

“almost unique in its detrimental effect on [his] credibility” and

therefore ordered a new trial. Id.

Amicus similarly asserts that the undisclosed report was not

“the same kind of evidence” and thus was not cumulative.

Cuffie, 80 F.3d at 518. Specifically, Amicus contends that the

report was unique because it revealed that Harper engaged in

fraud as a loan officer whereas the other impeachment evidence

involved fraud as an appraiser. We do not agree—Harper’s

admission that she prepared loan applications containing false

statements for Brodie is similar to her previous admissions that

she had prepared hundreds of appraisals containing false

statements. The withheld evidence was simply another

illustration of Harper’s untruthfulness rather than evidence

“almost unique in its detrimental effect” on Harper’s credibility.

Id. This case thus differs from Cuffie, where the Government

withheld the fact that a critical witness—a co-defendant who

had pleaded guilty—perjured himself in a previous court

proceeding involving the same conspiracy and there was no

other impeachment evidence that he had testified untruthfully in

the past. Accordingly, we conclude that the withheld report was

merely cumulative of other impeachment evidence and therefore

the district court properly denied Brodie’s new trial motion.

18

C. Brodie’s Enhanced Sentence

Amicus claims that the district court improperly applied a

four-level sentencing enhancement pursuant to U.S.S.G.

§ 3B1.1. Section 3B1.1 of the Guidelines provides that the

defendant’s offense level should be increased by four levels “[i]f

the defendant was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a). Amicus argues that there was

no evidence that Brodie was an “organizer or leader” or that

there were at least five participants in the scheme. We review

the district court’s factual findings supporting a section 3B1.1

enhancement under the “clearly erroneous” standard of review.7

See United States v. Shah, 453 F.3d 520, 524 (D.C. Cir. 2006);

United State v. Yeh, 278 F.3d 9, 14 (D.C. Cir. 2002).

1. Organizer or Leader

Amicus claims that Brodie did not exercise control over any

of the other participants in the scheme and therefore Brodie was

not “an organizer or leader of a criminal activity.” Amicus notes

that all of the other participants had been involved in similar

fraudulent conduct before their participation in Brodie’s scheme

and “it is far more likely that Padonu and/or Kareem supervised

defendant and told him how to complete the process, as one of

them was the loan officer on all nine of the properties with

which defendant was involved.” Amicus Br. 39. Amicus

contends that Brodie’s involvement is similar to that of the

defendant in United States v. Quigley, 373 F.3d 133 (D.C. Cir.

2004), where the court held that a real estate agent involved in

a “flipping” scheme was not “an organizer or leader.”

7

Although Brodie objected to the district court’s “five

participants” finding at sentencing, he did not object to the “organizer

or leader” finding. We need not reach whether that finding is

reviewed for plain error only, however, because we conclude that the

enhancement was not erroneous.

19

While plainly control is one factor in determining whether

someone qualifies as an “organizer or leader,” the Guidelines

include several other factors, including “the exercise of decision

making authority, the nature of participation in the commission

of the offense, the recruitment of accomplices, the claimed right

to a larger share of the fruits of the crime [and] the degree of

participation in planning or organizing the offense.” U.S.S.G.

§ 3B1.1, cmt. n.4. The record contains evidence supporting each

of these factors.

First, Brodie recruited individuals with specialized skills to

facilitate his scheme: Akinmurele prepared false financial

documents, Harper appraised the properties and Padonu or

Kareem submitted the false loan applications. Second, Brodie

coordinated the group’s efforts and directed them in the

performance of their respective tasks. For example, Brodie met

with Harper and directed her to appraise the properties at

specific inflated prices. Similarly, Brodie directed Akinmurele

to prepare false documents to conform with information Brodie

had already submitted to the lender. Brodie also directed

Padonu and Kareem to file the false loan applications. Finally,

Brodie paid the other participants flat fees for their

services—several hundred dollars each—and kept the “fruits of

the crime” (the loan proceeds) for himself. Accordingly, the

record supports the finding that Brodie was an organizer or

leader of the criminal activity. See United States v. Wilson, 240

F.3d 39, 46-47 (D.C. Cir. 2001) (affirming imposition of

enhancement because “[t]he exercise of decision making

authority, recruitment, and a claimed right to a larger share of

the proceeds are prominent among the factors that the

commentary to the Guidelines indicates should be considered”);

United States v. Kelley, 36 F.3d 1118, 1129 (D.C. Cir. 1994)

(defendant exercised control over others as “organizer or leader”

by instructing other participants to take specific actions).

20

The holding in Quigley does not compel a different result.

Quigley was a real estate agent who pleaded guilty to conspiracy

to defraud the United States for her role in a house-flipping

scheme. 373 F.3d at 134-35. She aided the scheme by helping

her co-conspirators find appraisers to inflate the property values

and by helping buyers obtain false income records so that they

qualified for federally insured mortgages. Id. at 134. The court

held that a four-level “organizer or leader” enhancement was not

warranted because “[e]ntirely lacking on the record before us is

any evidence that Quigley had any sort of hierarchically superior

relationship with the persons who were purportedly her

subordinates.” Id. at 140. While Quigley assisted others to

engage in a fraud, Brodie recruited and organized his co-

conspirators so that he could purchase the properties and retain

the fruits of the fraud. Brodie occupied the top position in the

conspiracy hierarchy, directing and supervising the efforts of an

appraiser, two loan officers and an accountant. Quigley was

simply a facilitator but Brodie designed and led the conspiracy.

Accordingly, the district court did not err in finding that Brodie

was an “organizer or leader.”

2. Five Participants or Otherwise Extensive

While Amicus does not contest that Padonu, Kareem and

Harper were participants in the fraudulent scheme, Amicus does

assert that Akinmurele cannot be characterized as a criminally

responsible participant because “there is no indication that he

had any knowledge of the ‘flipping’ scheme.” Amicus Br. 40.

Accordingly, Amicus contends that the record does not support

the finding that Brodie was the leader of a scheme involving five

participants.

The comment to section 3B1.1 defines a participant as “a

person who is criminally responsible for the commission of the

offense, but need not have been convicted.” U.S.S.G. § 3B1.1

cmt. n. 1. A person is “‘criminally responsible’ under § 3B1.1

only if ‘he commit[s] all of the elements of a statutory crime

21

with the requisite mens rea.’” United States v. McCoy, 242 F.3d

399, 410 (D.C. Cir. 2001) (quoting United States v. Bapack, 129

F.3d 1320, 1325 (D.C. Cir. 1997) (internal quotations omitted))

(emphasis added and alteration in McCoy). The person need not

be “found criminally responsible as a principal or culpable in the

same crime of which the supervising defendant was convicted:

‘[J]ust as a party who knowingly assists a criminal enterprise is

criminally responsible under principles of accessory liability, a

party who gives knowing aid in some part of the criminal

enterprise is a “criminally responsible party” under the

Guidelines.’” Bapack, 129 F.3d at 1325 (quoting United States

v. Hall, 101 F.3d 1174, 1178 (7th Cir. 1996)) (alteration in

Bapack).

Based on the record, the district court’s finding that

Akinmurele was a criminally responsible person was not clearly

erroneous. Akinmurele admitted to the FBI that he prepared

false financial statements for Brodie at Brodie’s direction and

bank records corroborate Akinmurele by indicating that Brodie

paid Akinmurele for his services. Therefore, the imposition of

the four-level enhancement pursuant to U.S.S.G. § 3B1.1 was

not clearly erroneous.

D. Failure to Request Downward Departure

Amicus claims that Brodie’s trial counsel provided

ineffective assistance because he did not request a downward

departure based on Brodie’s immigration status pursuant to

United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). To

demonstrate that “counsel’s assistance was so defective as to

require reversal of a conviction . . . the defendant must [first]

show that counsel’s performance was deficient.” Strickland v.

Washington, 466 U.S. 668, 687 (1984) “Second, the defendant

must show that the deficient performance prejudiced the

defense.” Id. While we often remand an ineffectiveness claim

for an evidentiary hearing, see United States v. Geraldo, 271

F.3d 1112, 1116 (D.C. Cir. 2001), we dispose of such a claim

22

“when the trial record conclusively shows that the defendant is

entitled to no relief; and when the trial record conclusively

shows the contrary.” Id.

In Smith, “we allowed [a] downward departure because of a

defendant’s status as a deportable alien, recognizing that

because such aliens were ineligible for spending the last 10% of

their sentences in community-based confinement and could not

be assigned to minimum security prisons . . . a defendant’s

deportable alien status would ‘substantial[ly] . . . affect the

severity of his confinement.’” United States v. Graham, 83 F.3d

1466, 1481 (D.C. Cir. 1996) (quoting Smith, 27 F.3d at 655).

While recognizing that the district court was not required to

grant a Smith departure, Amicus argues that “there is no

conceivable tactical reason for a defendant not to request one”

and that “there is at least a ‘reasonable probability’ that the

district court would have granted a Smith departure.” Amicus

Br. 42, 44.

Assuming arguendo that trial counsel was deficient in failing

to request a Smith departure,8 Amicus cannot demonstrate that

the deficiency prejudiced Brodie because the district court made

clear that it would not have departed downward. See Sentencing

Tr. 37, Aug. 8, 2005 (“I will apply the Guideline range, although

this is a case that I would be tempted to exceed the guideline

range, but I did not give you notice.”) (emphasis added).

Accordingly, we conclude that Brodie is not entitled to relief

based on his ineffectiveness claim. See Strickland, 466 U.S. at

687 (To demonstrate that “counsel’s assistance was so defective

as to require reversal of a conviction . . . the defendant must

show that the deficient performance prejudiced the defense.”).

8

We note, however, that Amicus conceded at oral argument that

“there may be cases where tactically or strategically the lawyer doesn’t

ask for [a Smith departure].” Oral Argument 41:02-06, Nov. 13, 2007.

23

E. Pro Se Claims

In addition to raising some of the arguments addressed

above, Brodie raises ten additional arguments in his five pro se

filings.

1. Sufficiency of the Evidence

Brodie first argues that his conviction should be reversed for

insufficient evidence. Viewing the evidence in the light most

favorable to the government, we must accept “the jury’s guilty

verdict if we conclude that ‘any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.’” United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir.

2005) (quoting United States v. Arrington, 309 F.3d 40, 48 (D.C.

Cir. 2002)). While this articulation imposes an “‘exceedingly

heavy burden,’” Brodie’s burden is “even heavier” because he

failed to move for a judgment of acquittal and we thus consider

his claim only if denial on the waiver ground would constitute

a “‘manifest miscarriage of justice.’” United States v. Booker,

436 F.3d 238, 241 (D.C. Cir. 2006) (quoting United States v.

Salamanca, 990 F.2d 629, 637 (D.C. Cir. 1993); United States

v. Thompson, 279 F.3d 1043, 1051 (D.C. Cir. 2002)).

To be guilty of the charged conspiracy, Brodie had to enter

into an agreement to commit fraud, knowingly participate in the

conspiracy and commit “‘at least one overt act . . . in furtherance

of the conspiracy.’” United States v. Alston-Graves, 435 F.3d

331, 337 (D.C. Cir. 2006) (quoting United States v. Mellen, 393

F.3d 175, 180-81 (D.C. Cir. 2004) (internal quotation omitted)).

“The elements of the wire fraud offense [a]re that [Brodie]

knowingly and willingly entered into a scheme to defraud and

that an interstate wire communication was used to further the

scheme.” Id. Because “the record is not devoid of evidence”

supporting each element of both offenses—the documentary

evidence alone demonstrates Brodie’s extensive involvement in

the scheme—no manifest miscarriage of justice results from

24

rejecting Brodie’s sufficiency claim. Thompson, 279 F.3d at

1051.

2. Ineffective Assistance of Counsel

Brodie next asserts that his counsel was ineffective in failing

to move for judgment of acquittal. Because the evidence of

Brodie’s guilt was overwhelming, Brodie was not prejudiced by

his counsel’s failure to move for a judgment of acquittal.

Absent a finding of prejudice, Brodie’s ineffectiveness claim

fails. See Strickland, 466 U.S. at 694.

3. “Expert” Witness Claim

Brodie also claims that Harper and Brewster were not

qualified to testify as expert witnesses. Harper did not testify as

an expert witness, however, and Brodie stipulated to Brewster’s

expert status at trial.

4. Statute of Limitations and Speedy Trial Claim

Brodie argues that the indictment was untimely under the

five-year statute of limitations for non-capital crimes, 18 U.S.C.

§ 3282(a), and thus violated his speedy trial right under the Sixth

Amendment. The statute of limitations for crimes affecting

financial institutions is ten years, see 18 U.S.C. § 3293, and thus

the indictment was timely filed.

5. Jurisdiction and Venue

Brodie asserts that the case was improperly tried in the

District of Columbia (District) because the defrauded lenders

were located both in the District and in Maryland. “The

government bears the burden of establishing by a preponderance

of the evidence that venue is proper with respect to each count

charged against a defendant.” United States v. Lam Kwong-

Wah, 924 F.2d 298, 301 (D.C. Cir. 1991). Because overt acts in

furtherance of the conspiracy took place in the District—seven

of the properties are located in the District—venue was proper

25

on the conspiracy count. See 18 U.S.C. § 3237(a) (“Except as

otherwise expressly provided by enactment of Congress, any

offense against the United States begun in one district and

completed in another, or committed in more than one district,

may be inquired of and prosecuted in any district in which such

offense was begun, continued, or completed.”); Lam Kwong-

Wah, 924 F.2d at 301 (“It is a well-established rule that ‘a

conspiracy prosecution may be brought in any district in which

some overt act in furtherance of the conspiracy was committed

by any of the co-conspirators.’” (quoting United States v.

Rosenberg, 888 F.2d 1406, 1415 (D.C. Cir. 1989))). Venue was

proper on the wire fraud count because Brodie faxed title search

requests from the District to settlement companies in Maryland.

See 18 U.S.C. § 3237(a); United States v. Allen, 491 F.3d 178,

186 (4th Cir. 2007) (“[O]verwhelming evidence was adduced at

trial to support the convictions of [defendants] on wire fraud and

aiding and abetting wire fraud” because “there is ample

evidence that [defendant] faxed fraudulent documents.”).

6. Confrontation Clause Claim

Brodie contends that his Confrontation Clause right under

the Sixth Amendment was violated because documentary

evidence was admitted into evidence by agreement of the parties

without an opportunity for him to cross-examine witnesses in

support thereof. “[E]ven under the more stringent procedural

due process standards applicable to criminal proceedings, the

courts have held that the right to confront and cross-examine

witnesses may be waived.” Ritz v. O’Donnell, 566 F.2d 731,

735 (D.C. Cir. 1977) (citing Taylor v. United States, 414 U.S.

17, 19-20 (1973)). Brodie did so here.

7. Forfeiture Order

As noted earlier, the district court ordered Brodie to pay

$355,449.70 in restitution pursuant to 18 U.S.C. § 982(a)(2)(A).

See 18 U.S.C. § 982(a)(2)(A) (“[A] person convicted of a

26

violation of, or a conspiracy to violate [18 U.S.C. § 1343]

affecting a financial institution, . . . [must] forfeit to the United

States any property constituting, or derived from, proceeds the

person obtained directly or indirectly, as the result of such

violation.”) (emphasis added); 18 U.S.C. § 20(1) (defining

“financial institution” as “an insured depository institution (as

defined in section 3(c)(2) of the Federal Deposit Insurance

Act)”). Brodie claims that the district court’s forfeiture order

should be reversed because the Government failed to prove that

the lenders are institutions insured by the FDIC. The

Government, however, introduced affidavits from the FDIC’s

Assistant Executive Secretary certifying that the lenders are

FDIC-insured. Brodie also contends that forfeiture was not

authorized under section 982 because the lenders resold their

mortgage receivables to other financial institutions but the

statute does not create such an exception. See 18 U.S.C.

§ 982(a)(2) (“The court, in imposing sentence on a person

convicted of a violation of, or a conspiracy to violate [18 U.S.C.

§ 1343] affecting a financial institution . . . shall order that the

person forfeit to the United States any property constituting, or

derived from, proceeds the person obtained directly or

indirectly, as the result of such violation.”) (emphases added).

8. Miscellaneous Arguments

Brodie makes the following arguments in passing: (1) the

indictment was “duplicitous,” (2) the jury instructions were

“confusing” and (3) his enhanced sentence was unconstitutional

under United States v. Booker, 543 U.S. 220 (2005). Because

Brodie makes only conclusionary assertions regarding these

arguments, we consider these claims abandoned on appeal. See

United States v. Hall, 370 F.3d 1204, 1209 n.4 (D.C. Cir. 2004)

27

(“[O]ne sentence, unaccompanied by argument or any citation

to authority, does not preserve the issue for decision.”).9

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.

9

Moreover, on the merits we reject Brodie’s arguments because

the indictment was not duplicative, Brodie does not point to any jury

instruction that was confusing and his enhanced sentence was not

unconstitutional under Booker because the court did not treat the

Guidelines as mandatory, see 543 U.S. at 249-59.