IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20885

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARJORIE ATKINSON FORD

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:

This is a direct criminal appeal from a conviction for conspiracy to commit

wire fraud after a jury trial. Appellant Marjorie Ford argues the evidence is

insufficient to sustain the conviction, claiming that the government failed to

prove that she knowingly participated in the wire fraud scheme. Appellant also

contends that the district court erred in imposing two sentencing enhancements

and that her guideline sentence is unreasonable. Viewing the evidence in the

light mostfavorable to the jury verdict, we find the evidence sufficientto sustain

the conviction. Additionally, finding no sentencing error, we affirm the sentence.

United States Court of Appeals

Fifth Circuit

F I L E D

January 13, 2009

Charles R. Fulbruge III

Clerk
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I. FACTUAL AND PROCEDURAL HISTORY

The wire fraud scheme involved a series of real estate transactions in

which co-defendant Michael Harris, aided by Ford and a mortgage broker, Jim

Houston, orchestrated a scheme in which the sale price of houses were inflated

using false invoices for construction, home audio, or landscaping services that

Harris’s company never actually provided. Thus, lenders would loan an amount

greater than the value of the house, with the additional amount divided among

the borrower and Harris. Additionally, during most of the transactions,

Houston’s wife Melissa would be paid a commission even though she did not

perform any services. Harris and Houston recruited buyers, and if the buyer

was unable to qualify for the loan, they would employ a “credit repair service,”

owned by Carlin Joubert, to add credit lines to boost the buyer’s credit score and

sometimes provide the purchaser with a false social security number. 

Ford was responsible for preparing false real estate documents and closing

transactions (even though her escrow license had been suspended and she could

not legitimately close transactions), thereby facilitating the payment of inflated

loans and fraudulent invoices. Ford worked for several title companies during

the relevant time period, including AmeriTrust Title Company, her employer at

the time of her arrest.

Harris also used the services of Valencia Armstead, a branch manager for

Compass Bank. In order to induce lenders to make loans, Armstead issued false

verifications of deposit for individuals who did not have the requisite funds for

the loans. 

Harris later recruited Armstead herself to purchase a house at 16472 Ryan

Guinn Way, even though she had bad credit and had never visited the property.

Harris used Joubert’s company to “boost” Armstead’s credit score and obtain a

fraudulent social security number. At the time of Armstead’s closing date,

January 8, 2007, the Secret Service was investigating the case and approached
No. 07-20885

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Armstead at her bank office. Armstead agreed to cooperate and assist in

recording conversations. Armstead called Harris, and Harris said that he would

not be at the closing but Ford would be there. Harris vouched that Ford was

“cool” and that he had worked with Ford in the past. The transaction was

designed to net $17,000 from the proceeds of the loan from Countrywide Home

Loans, with Armstead to receive a share. For the closing of this loan, Ford

received instructions from Countrywide’s representative. When Armstead

arrived at the closing (wearing a recording device), both Harris and Ford were

present. Armstead had not previously seen her own loan application. Armstead

told Ford that the social security number on her loan application was incorrect.

Instead of stopping the closing and informing Countrywide—pursuant to

Countrywide’s prior instructions—Ford told Armstead to correct the number and

continue signing documents. Further, even though the evidence indicated that

Ford knew that Armstead would not be living in the Ryan Guinn property (the

plan was to lease the residence), Ford had Armstead sign a certificate of

occupancy. Armstead testified as to “side conversations” between Harris and

Ford and other circumstances that made it appear to Armstead that Ford was

a knowledgeable participant. Harris and Ford were arrested during this

transaction. 

A grand jury returned a one-count indictment charging Harris and Ford

with conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349.

Harris pleaded guilty to the indictment. Ford was tried by a jury and found

guilty as charged. At sentencing, the district court imposed a 16-level

enhancement based on the finding of intended loss in excess of $1,000,000.

U.S.S.G. § 2B1.1(b)(1)(I). The district court also imposed a two-level increase

based on a finding of ten or more victims. U.S.S.G. § 2B1.1(b)(2)(A)(i). These

enhancements resulted in an offense level of 24. With a criminal history

category of II, Ford’s guideline range was 57-71. Although the government
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recommended a sentence in the middle of the range, the district court sentenced

Ford to the longest sentence within the range (71 months). Ford now appeals.

II. ANALYSIS

A. Sufficiency of the Evidence

Ford contends thatthe evidence is insufficientto sustain her conviction for

conspiracy to commit wire fraud. When reviewing the sufficiency of the

evidence, we view all evidence, whether circumstantial or direct, in the light

most favorable to the government, with all reasonable inferences and credibility

choices to be made in support of the jury’s verdict. United States v. Salazar, 958

F.2d 1285, 1290–91 (5th Cir. 1992). The evidence is sufficient to support a

conviction if a rationaltrier of fact could have found the essential elements ofthe

crime beyond a reasonable doubt. Id. The evidence need not exclude every

reasonable hypothesis of innocence or be completely inconsistent with every

conclusion except guilt, so long as a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt. UnitedStates v. Faulkner,

17 F.3d 745, 768 (5th Cir. 1994). With respect to the offense of wire fraud, the

“government must prove beyond a reasonable doubt that the defendant: (1)

engaged in a scheme to defraud and (2) used, or caused the use of, wire

communications in furtherance of that scheme.” United States v. Rivera, 295

F.3d 461, 466 (5th Cir. 2002) (citing 18 U.S.C. § 1343). With respect to

conspiracy, the district court’s instructions provided that the jury must be

convinced beyond a reasonable doubt that: (1) “two or more persons, directly or

indirectly, reached an agreementto devise and execute a scheme to defraud”; (2)

“the defendant knew the unlawful purpose of the agreement;” and (3) “the

defendant joined in the agreement willfully, that is, with the intent to further

the unlawful purpose.” 

Ford does not dispute that there was a conspiracy to commit wire fraud;

instead, she contends that she did not knowingly participate in it. The defense’s
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position at trial was that Ford innocently followed the instructions from Harris

and Houston. Ford contends that her role was to process documents that were

approved and signed by other individuals and send them to the lender. Upon

receipt of the documents, the lender wired funds to the title company pursuant

to the settlement statement. 

Accordingly, the issue is whether the evidence is sufficient to show that

Ford was aware of the misrepresentations and misinformation she submitted to

the lenders. At trial, Harris, Ford’s codefendant, testified that he:

conspired with Ms. Ford. Her role was not as far as getting the

process going with the mortgage company. Her role was with the

title, disbursing the funds. That’s what I conspired with her, as far

as . . . the title stuff. As far as the money, the transfer, the wire

coming back, how the money was being disbursed.

Harris also testified that Ford did “whatever she had to do as far as being a

closer to manipulate the [settlement statement] to make it go smoothly.” As

Ford admits, Harris’s testimony also indicated thatFord knew to pay Harris and

Houston from the lenders’ funds for services that had not been performed on the

houses. He also testified that on one occasion he failed to bring a cashier’s check

for the earnest money to a closing, and Ford “just like made one on the computer

and faxed it to the lender.” Harris testified that Ford was aware that some of

the buyers were fraudulently claiming in a certificate of occupancy that the

home would be a primary residence.

Armstead testified that she did not meet Ford until the closing that

precipitated Ford’s arrest. Armstead further testified that she believed that

Ford “knew more about what was going on.” Armstead came to this conclusion

based on the conversation during the closing, “the looks exchanged between the

two [Harris and Ford]” and “the fact that [Harris] had said that [Ford] worked

with him and she was cool.” During Armstead’s closing, although Armstead told

Ford that her social security number was incorrect, Ford did not stop the closing
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in accordance with the lender’s rules. Instead, Ford instructed Armstead to

correct the number and continue to sign the forms. 

Additionally, Special Agent Vincent Edwards testified that he monitored

the audio of the closing that culminated in Ford’s arrest. He testified that when

he interrupted the closing, he inquired of each person what their purpose was

at the closing. Ford responded that she was representing the builder. To the

contrary, Ford was employed by AmeriTrust Title. We have previously

recognized that lying to agents is evidence of guilty knowledge. United States

v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir. 1989).

Ford contends that the testimony of Harris was insufficient to prove that

she knowingly participated. This Court has explained that it “is concerned only

with the sufficiency—notthe weight—of evidence.” United States v. Garcia, 995

F.2d 556, 561 (5th Cir. 1993). To put a finer point on it, the credibility of a

witness and the “weight ofthe evidence is the exclusive province of the jury.” Id.

The jury was free to credit Harris’s testimony. Indeed, this Court is bound to

accept a jury’s credibility determinations unless the challenged testimony “is so

unbelievable on its face that it defies physical laws.” United States v. McKenzie,

768 F.2d 602, 605 (5th Cir. 1985). 

Ford also points to evidence showing that she was unaware of the fake

social security numbers. The government does not contend that she had

knowledge of the fake social security numbers. Indeed, Harris’s testimony

makes clear that Ford’s role in the conspiracy did not involve knowledge of the

fake social security numbers. Ford’s role was to ensure that the settlement

statement was manipulated such that the lender would be unaware that the

amount of the loan was fraudulently inflated. Ford would also facilitate

concealing certain information from the lender —such as the fact that the buyer

was not going to occupy the home as a primary residence. Accordingly, we find

that the evidence, viewed in the light most favorable to the verdict, allows a
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rational trier of fact to find that Ford knowingly participated in the wire fraud

scheme. The conviction is AFFIRMED. 

B. Sentencing 

1. Amount of Loss

Ford contends that the district court erred in calculating the amount of

loss under § 2B1.1(b)(1). The district court adopted the loss calculation

contained in the PSR. A PSR “is considered reliable and may be considered as

evidence by the court when making sentencing determinations.” United States

v. Vela, 927 F.2d 197, 201 (5th Cir. 1991). “In making its factual findings for

sentencing, a district court may adoptthe findings ofthePSR without additional

inquiry if those facts have an evidentiary basis with sufficient indicia of

reliability and the defendant does not present rebuttal evidence or otherwise

demonstrate that the information is materially unreliable.” United States v.

Valles, 484 F.3d 745, 759 (5th Cir. 2007). “The defendant has the burden of

showing that the information relied on by the district court in the PSR is

materially unreliable.” Id. at 759-60.

More specifically, Ford challenges the methodology relied upon by the

district court. In response, the government asserts that the calculations Ford

submitted to the district court in rebuttal use the same methodology of the PSR.

In her reply brief, Ford asserts that using the PSR’s amount of loss did not waive

her argument. By using the same figures the government used, she failed to

carry her burden of proving the figures and methodology were materially

unreliable or erroneous before the district court. With respect to Ford’s

remaining challenges to the calculation of loss, Ford has failed to show clear

error.

2. Number of Victims
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In her initial brief, Ford contends that the district court erred in applying

the two-level enhancement to her offense level based on finding ten or more

victims. § 2B1.1(b)(2)(A)(i). She asserts that the “government never provided

the district court with the list of lenders who suffered losses.” Ford further

argues that “[a]t a bare minimum, the government was obligated to provide the

list of victims to support an enhancement based on their number. This it did not

do.” In response, the government’s brief provides that the attachment to the

PSR specifically listed the names of the victims as follows: 

The Federal Home Loan Mortgage Corporation, Ocwen Loans

Servicing, LLC, Washington Mutual Home Loans, Securitized Asset

Trust-NCZ, Nations (the builder in many transactions), Residential

Funding Company, LLC, NHB to Akon Eluma, Bear Stearn

Institutional Lenders, Federal National Mortgage Association,

Argent Mortgage Section, Inc., Deutsche Bank National Trust, and

GMAC Mortgage, LLC. 

In her reply brief, Ford does not dispute that the attachment to the PSR

listed ten victims. Instead, she points to the district court’s statement of its

reason for not ordering restitution to the victims. Contrary to Ford’s assertion,

the record ofthe sentencing hearing makes clear that the district court overruled

her objection to the number of victims under § 2B1.1(b)(2)(A)(i). Ford has failed

to show the district court clearly erred in finding ten victims. 

3. Reasonableness

Finally, Ford contends that the district court imposed an unreasonable

sentence. Her sole basis for this contention is that her sentence was imposed

prior to the Supreme Court’s opinions in Kimbrough v. United States, 128 S. Ct.

558 (2007), and Gall v. United States, 128 S. Ct. 586 (2007). Kimbrough held

that a district court had discretion to vary from the guidelines based on a

disagreement with guideline policy. See United States v. Gomez-Herrera, 523

F.3d 554, 563 (5th Cir. 2008). With respect to Gall, Ford relies on the Supreme

Court’s rejection of a rule that requires extraordinary circumstances to justify
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Indeed, the district court sentenced Ford to the highest end of the guideline range

despite the government’s recommendation of a mid-range sentence.

9

a sentence outside the guidelines range. 128 S. Ct. at 595. In the instant case,

there is no indication that the district court disagreed with the guideline range

or somehow felt constrained by our pre-Gall/Kimbrough precedent.1 We have

previously rejected this claim under similar circumstances. See United States

v. Rodriguez-Rodriguez, 530 F.3d 381, 387-89 (5th Cir. 2008) (finding no plain

error as to claim of unreasonable sentence after Kimbrough even though district

court sentenced defendant to the lowest end of the guideline range). Here, the

district court stated that it had considered the guidelines and the factors under

18 U.S.C. § 3553(a). Ford has not overcome the presumption of reasonableness

afforded her guidelines sentence. See Rita v. United States, 127 S. Ct. 2456,

2462–68 (2007); United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). 

For the above reasons, the district court’s judgment is AFFIRMED.