The Honor able William W Schw arzer, United States District J udg e for the Norther n District * of California, sitting by

desig nation. File Na

me: 07a0476n.06 Filed: Jul y

3, 2007 NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON

No. 05-6741 UN ITED STA TES C OU RT OF AP P EA LS F O R T H E S IX T H C IR C U IT UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. L ARRY BUL L OCK, De fe nd ant- Ap pe lla

nt. ON APPEALFROM THE UN I TE D ST AT ES D I STR I CT CO UR T F OR

TH E WE STE RN DI STRI CT OF TEN

NESSEE

/ OP IN ION Be fore : MARTI

N and DA UGHTREY, Circ uit J udg es; SCHW ARZ ER, District J udg e. * BO YCE F. MARTI

N, J R., Circuit J udg e. Def endant L arr

y Bullock w as cha

rg ed with one count o f c o n s p ir a c y

to c o mm it

ma il f r a u d , w ir e f

r a u d , an d mo n e y la u n d e r in g in

v io lati o no f

18 U.S.C. § 371, and two counts of aiding and abetting mail fra ud in violation of 18 U.S.C. §§ 1341 and 2. A ju r y c o n v ic te d B u ll o c k o n a ll thr e e c o u n ts

. H e n o w a p p e a ls , c la im in g th a t th e r e was insufficient e vidence to sustain his conviction. W e disagree , and ther efor e AF F IRM Bullock’ s conviction.No. 05-6741

United States v. Bullock Pag e 2

Ray

born wa s also char g ed with money launder ing in violation of 18 U.S.C. § 1957. 1 I. This case involves char g es broug ht ag ainst Bullock, a Certified Public Acc ountant (CPA), and Ge rald Ray

b orn, a pa stor at the Mt. Sinai Missi onary Ba ptist C hurch in Memphis. B ullock worke d on the chur ch’s a nd Ray born’s pe rsonal accounts. Acc ording to the gover nment, Ray

born and B ullock cause d fra

udulent tax re turns to be submitt ed to Wells Farg o in order to a ssist R ay born’s pr oc ur e me nt of ho me loa

ns . B oth me n w e re c ha

rg e d w ithon e c ount o f c on sp ir a c y to c omm it m a il fra ud, wire f raud, and money launder ing in violation of 18 U.S.C. § 371, and two counts of a iding and abet ting mail fr aud in violation of 18 U.S.C. §§ 1341 and 2. They wer e tried se parately

and 1

c on vic te d o n a ll c ounts . T he re le va nt f a c ts o f t his c a se are a s f

oll ow s. I n 2002, Ray

born and his wife, Bonnie Ray born, decided to remode l their home. Howe ver, Bu l l o ckp er s u ad edt h em t o b u y a n ew h o m e i n s t ea d

. Bu l l o cki n t ro d u ce d t h e R ay

b o rn s t o m o rt gage br ok e r M ari on

B ro wn , w ho late r r e fe rr e d th e m to re a l e state a g e nt Vi nn ie F ly nn . T he Ray

bo rn s to ld Fly nn that they

wished to spend about $475,000. Fly nn eventua lly

located a home that the Ray

borns found ag ree able, a

nd the par

ties settled on a sale price of $525,0 0 0

. T h e closing date wa s set for April 29, 2002. Ge ra l d R ay b o rn , wi t h Br o wn ’s as s i s t an ce , ap p l i edfo r a m o rt gage l o an t h ro u gh W el l s Fa rgo Mortg ag e. B onnie Ray

born wa s listed as a co-borrowe r. Ac cordingto Bonnie Ray born’s testimony at Bu l l o ck ’s trial, the Ray borns did not directly

g ive Marion B rown their f inancial infor

mation;

ra t h er , Bu l l o ckwa s re s p o n s i b l e f o r s u b m i t t i n g i t

. Al l o f t h e l o an d o cu m en t s s e n tt o W el l s Fa rgoNo. 05-6741

United States v. Bullock Pag e 3

wer e sent throug h Fe dera l Ex press. Included in the loan pac k age was a document ver ifying Ray born’s income and employ ment which wa s signe d by Bullock. I n order to determine Ray

born’s loan e ligibility , Wells Fa rg o require d copies of his 2000 a nd 20 01 fe de ra l tax re tur

ns . Ac c or din g to the re tur ns se nt t o We lls F arg o, the Ray bo rn s’ a dju ste d g ro ss inc ome (A GI ) i n 2 00 0 a

nd 20 01 wa s $ 84 ,2 74 and $1 03 ,2 06 , re sp e c tiv e ly . U sin g the se fi g ur e s, Wel ls Fa rg o calc ulated an aver ag e monthly income of $6,788. The Ray borns completed the purcha se of their newhome on May

20, 2002. On t hat s ame day , Ger ald R ay born si g ned a pr omissory note for $4 98 ,7 50 .0 0, re quirin g him to p ay $3 ,3 18 .2 0 a

mon th. Al so on

that da y , We lls F arg o w ir e d mo st of the $498,750.00 to the closing ag ent on Ray born’s be half. Ray

born wa s require d to re-sig n the documents that we re pa

rt of his orig inal loan pac kag e. On Au gu s t 2 9 , 2 0 0 2 , t h e R ay b o rn s , t h ro u gh t h ei r m o rt gage b ro k er , ap p l i edt o W el l s Fa rgo for a ref inancingloan. Acc ording to Bullock, this was done without his knowledge or assistance

. Th e same 20 00 and 20 01 ta x re tur ns that w e re us e d to ob ta in t he or ig ina l lo an w e re re -s ub mitte d to Wells Farg o. Due to Ray

born’s ex cessive oblig ations and insufficie nt income, Wells Farg o denied the loan. In response , Ray born submitt ed a copy

of a le ase a g ree ment indicating that he wa s leasing his former r esidenc e to “Stace y J ohnson” for

$1,300 a month. Th e l ea s e ap p ea rs to be sig ned by G e r a l d R ay b o r nan d J o h n s o n . W e l l s F ar g o w a s u n aw ar e t h a tJ o h n s o nw a s R ay b o r n ’ s d a u g h t e r . In lig ht o f t his a dd e d le a se inc ome , in a dd iti on to R ay bo rn ’s de c isi on to pa

y of f som e c re dit

c ard de bt, Wells Farg o approve d the re financ ing loa n. October

7, 2002, both Gera ld and B onni e Ray born signe d a promissory

note for $486,000.00. Wells Fa rg o wired $483,171.08 to the c losing a g ent.No. 05-6741

United States v. Bullock Pag e 4 Wells Farg o was una war e that the 2000 and 2001 fede ral tax returns it rec eived we re not the

same tax re turns that the Ray borns had submitt ed to the I RS. The tax re turns that th e R ay b o rns submitt ed to the I RS provided that in 2000 and 2001, their AGI was $7,4 6 2 an d $ 2 0 , 634, respe ctively . At Bullock’ s trial, David Crocke tt, a Wells Farg o employ ee, testified that with this t y pe of income, the Ray

borns would have only

qualified for a home loan betwee n $40,000 and $60,000. J ohnson, Ray

born’s da ug ht er , t es t i fi ed at B ullock’s trial that althoug h she lived at the Ray born s ’ f o r me r r e s id e n c e , s h e h a d

n e v e r s ig n e d a le a s e a g r e e me n t, n o r

d id s h e p ay r e n t t o live there . Additionally , the evidenc e showe d that while h er f irst name is spelled S-T-A -C-Y, the signature on the le ase r eads S-T- A-C-E- Y. Also testify ing at Bullock’s tria l was C harlotte W are , a forensic document examiner for the Un ite d St a te s Po sta l Ins pe c tio n Se rv ic e , w ho e xami ne d th e sig natur e s o n th e ta x re tur ns fi le d w ith the I RS and W ells Fa

rg o. Ware c o n cluded that Ray born sig ned his name to the 2001 r eturn submitt ed to Wells Farg o, and that he pr obably signe d his na

me on the 2000 Wells Far g o return. She also testified that Bullock probably signe d Bonnie Ray born’s name to the 2001 I RS tax re turn. Yet Bonnie Ray

born testified that she ne ver w ould have a uthorized Bu l l o ck to s ign tax returns on he r behalf . Significa

ntly , the evidenc e showe d that all four returns—that is, the two I RS returns and the tw o in a c c ur a te re tur

ns su bmi tte d to Wel ls F arg o— lis te d B ull oc k a s th e pr e pa re r a nd inc lud e d h is signature. II. On appe al, B ullock argues that the district c ourt err ed by denying his motions for judg ment of ac quittal, claiming that there was insufficient evidenc e for a jury to convict him of two counts ofNo. 05-6741

United States v. Bullock Pag e 5

The trial r ecor d shows that afte r t he gover nment rested its ca se, B ullock did not present any 2 additional evidenc e of his own. ma il f ra ud and on e c ount of c on sp ir a c y . Whe n re vie wi nga su ff ic ie nc y of the e vid e nc e c la im, thi s 2 Court should not determine “whe ther it believes that the evidenc e at the trial established g uilt bey ond

a re asonable doubt.” J

ac k so n v . V irg ini a , 443 U.S. 307, 31 8 -1 9 (1979) ( emphasis in orig inal). Ra the r, thi s Court mus t de c ide wh e the r, “ a ft e r vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the prosec ution, any rational trier of fac t c ould have f ound the essential e lements of the c rime beyond

a reasonable doubt.” Id

. a t 3 1 9 ( e mp h a s is in o r ig in a l)

. We r e v ie w a d is tr ic t c o u rt’ s denial of a mot ion fo r a jud g me nt o f a c qu itt a l de novo

. United States v. Lopez-M edina , 461 F.3d 724, 749- 50 (6th Cir. 2006). A. Co untOne : C ons pir ac y t o C om m itM ailF r aud, Wir e F r aud, and M one y La unde r ing Count One of the indictment cha rg ed B ullock and R ay

born with violating 18 U .S.C. § 371 by c on sp ir ing to: (1 ) co mmi t ma il f ra ud in v iol a tio n o f 1 8 U .S. C. § 13 41 , ( 2) c omm it w ir e fr a ud in vio la tio n o f 1 8 U .S. C. § 13 43 , a nd (3 ) l a un de r m on e y

in v iol a tio n o f 18 U. S.C. § 19 57 . T he se a c ts alleg edly occur red be twee n Ap ri l 2 and Oc tober 20, 2002, a nd resulted in the pr ocure ment of a $498,750 home mortg ag e loan a nd a $486,000 re financ ing loa n. For this Court t o aff

irm Bullock’ s conspirac y conviction, a reasona ble juror must have been able to find that the e vidence showed that (1) Bu l lock “knowing ly and willfully

joined in an ag ree men t wi t h ” R ay

born to (2) c ommit an offense (her e, mail fra ud, wire f

raud, a nd money launder ing) , and (3) “ther e wa s at least one ove rt ac t in furthera nce of the agr eeme nt.” United States v. Jam ieson , 427 F .3 d 3 94 , 4 02 (6 th C ir . 2 00 5) . B ull oc k ma y be he ld r e sp on sib le fo r a

ny ov e rt a c tsNo. 05-6741

United States v. Bullock Pag e 6 by Ray born, eve n those of which Bullock wa s unawa re, so longas such a cts wer e for esee able a nd done in furthe ranc e of the conspirac y . P in k e r to n v . U

n ite d S ta tes , 328 U.S. 640, 647-48 (1946); United States v. Lawson , 872 F.2d 179, 182 ( 6th Cir. 1989). Evidence that Bullock w as involved in the prepa ration of Ray

born’s loan a

pplications and that bo th B ull oc k a

nd Ray bo rn sig ne d the fr a

ud ule nt l oa n d oc ume nts wa s e no ug h to su sta in t he fi rs t element f or conspira cy

— an ag ree ment. Fur ther, ther e wa s enoug h evidenc e to satisfy the sec ond element with respe ct t o eac h of the three criminal off

enses. The first criminal off ense, mail fraud, c onsists of “(1) a scheme to defra

ud, and (2) use of the m ails in furthera nce of the sche me.” Jamieson , 42 7 F .3 d a t 40 2. “ A s c he me to defr aud includes a

ny plan or c ourse of

action by which someone uses fa lse, dec eptive, or f raudule nt prete nses, re prese ntations, or promises to deprive someone e lse of money .” Id . “The g overnme nt does not have to show that the defendant actually used the mails but must show that the defe ndant acte d with knowledg e that use of the mails would follow in the ordinary course of business, or that

a re asonable person would ha ve for esee n use of the mails.” Un ite d S tates v . Ca ntr e ll , 278 F.3d 543, 546 (6th Cir. 2001) (interna l quotation marks and citations om i t t ed ). I n this case, doc umentary evidenc e and te stimony , including te stimony by a handwr iting analy st, demonstrated that B ullock prepa red a nd signe d fra

udulent tax returns and other loan documents. These documents we re the n sent via a c ommon carr ier (he re, F eder al Express) to Wells Farg o. They did not accur ately

ref lect the income that Ray

born earned in 2000 and 2001, allowing the R ay borns t o obtain loans hig her tha n they would have be en elig ible for ba sed on the e arning s that were repor ted to the I RS.No. 05-6741

United States v. Bullock Pag e 7 There is also sufficie nt evidenc e to show that Bullock and Ray born conspired to commit wire fr a ud, whi c h c on sis ts o f a “ (1 ) s c he me to d e fr a

ud , a nd (2 ) u se of

an in te rs tate e le c tr on ic communication in further ance of the sche me.” Un ite d S tates v . B ro wn , 147 F.3d 477, 489 (6th Cir. 19 98 ). H e re , th e e vid e nc e c le arl y sh ow s th a t We lls F arg o w ir e d mo ne y to t he c los inga g e nt, unknowing ly

relying on fra

udulent documents pre pare d by Bullock — i.e ., differ ent tax returns than

w e r e s u b mi tt e d to th e I RS

. I t d o e s n o t matt e r if B u ll o c k w a s u n c e rta in th a t the money would be wired to the closing ag ent bec ause it wa s fore seea ble that Wells Farg o would use a w ire to transf er the money

. See U

nited States v. Prince , 214 F.3d 740, 748 n.4 (6th Cir. 2000) (“The de fenda nt does

no t ha ve to d ir e c tly

or pe rs on a lly

pe rf or m th e wi re c omm

un ic atio n; it is s uf

fi c ie nt t hat it is fore seea ble that a wir e communication could be used to adva nce the scheme to defra

ud.”). The third off

en s e , mo n e y

la u n d e r in g , “ is a c c o mp li s h e d

when a de fenda

nt ‘knowing ly

eng ag es

. . . in a mon e tary tr ans a c tio n in c ri min a lly de ri ve d pr op e rt y of a va lue g re a te r t

ha n $ 10 ,0 00 and

is derive d from a spe cified unla wful ac tivity

. . . .’” United States v. Y

oung , 2 66 F .3 d 4 68 , 4 73 n. 5 ( 6th Cir. 2001) (quoting 18 U.S.C. § 1957). Her e, there was sufficie nt evidenc e for a reasonable juror to conclude that Bullock and Ray born knowingly eng ag ed in s pecif ied unlawf

ul activity (mail fra ud) which yield ed p ro ce ed s (the loans) ove r $10,000. Those pr ocee ds were then used in monetar y transac tions — W ells Fa

rg o’s wiring of the funds to the closing ag ent for the purposes of pur chasing a home a nd ref inancinga home loan. Thus, as ex plained above, there was suff icient evidenc e to show that B ullock and Ray born kn o w i n g l y an d

w i l l i n g l y a g r e e d t o c o m m i t m a i l f r a u d , w i r e f r a u d , an d m o n e y l a u n d e r i n g . F i n a l l y, the third eleme nt of conspira cy , the commission of an over t act, is more than satisfied as theNo. 05-6741

United States v. Bullock Pag e 8

Although w e make this assumpti on for the pur pose of a naly zing t he conspiracy count, as we 3 explain in our discussion of the second mail fra ud count, we d o b el ieve that ther e wa s sufficient evidenc e to show that B ullock was a war e of the ref

inancingloan. ev i d en ce shows that Bullock pre pare d and submitted fra udulent tax returns, letters, and loa n documents, all of whic h wer e sent to Wells Far g o. Bullock a rg ues that despite a

ny evidenc e showing his involvement in procur ing the first loan, the g overnme nt did not meet its burden in demonstrating that he conspire d with Ra y born to procur e the re financ ing loa

n. Specifica lly , Bullock c laims that the Ray borns obtained this loan on their own wi tho ut his kn ow le dg e or a ssi sta nc e . We f ind thi s a rgume nt u

nava ili ng . F ir st, B ull oc k d id n ot r a ise the af firmative de fense of wit h d ra wa l fr om the conspirac y . Se e Un ite d S tates v . La sh , 937 F.2d 1077, 1083 (6th Cir. 1991) (e x plaining that a defendant has the burde n of provingwithdrawa l from a conspira cy

by demonstrating“that he or she took aff

irmative act i o n , ” n o t “mer e ce ssation of activity ,” “to de feat or disavow the purpose of the conspirac y ”). Moreove r, B ullock did nothing that could have preve nted the Ray borns from r efina

ncing their home, such as t ry ing to have the loan documents re turned to h i m t o avoid their be ing r e-use d in another loa n application. Second,

as s u m i n g arguendo that Bullock w as unaw are of the submission of the fra udulent documents for

the ref inancing loan, g iven Bullock’ s prepa ration of the doc uments and his failure to retrieve them afte r 3 the first loan was approve d, it was certainly fore seea ble t hat t he R ay

borns m ight r efina

nce the loan. See Lawson , 8 72 F .2 d at 18 2; see also Fe deral Savings and Loan Ins. Corp. v. Szarabajka , 3 30 F. Supp. 1201 , 1 2 0 8 ( N

. D

. I ll

. 1 9 7 1 ) ( f in d in g th a t t

h e e v id e n c e w a s s u f

f ic ie n t t o s u

p p o rt t h e jur y ’s conclusion that the defe ndant’s “fr audulent procur ement of the orig inal loan made the ref inancing of it clea rly fore seea ble, and thus par

t of the entire conspirac y ”).No. 05-6741

United States v. Bullock Pag e 9 I n sum, when viewing the evidenc e pre sented at trial in the light most favora ble to the United States, we hold that a r ational j u ro r co u l d have f ound bey ond a re asonable doubt that Bullock knowing ly

participated in a conspira cy to commit mail fraud, wire fra ud, and money

launder ing. B. C ount s Two a nd Thr e e : A iding and A be tt ing M ailF r aud The indictment alleg es that B ullock and Ray born, aiding and abe tting ea ch other , executed mail fraud. A s expl ained a bove, mail fra

ud consists of “a sc heme to def raud,” by the “ u se of the mails in furthera

nce of the sche me.” See J

amieson , 427 F.3d at 402. The g overnme nt must show that B ull oc k h a d th e kn ow le dg e , o r a re a so na ble pe rs on wo uld have fo re se e n, that th e ma ils wo uld be used in or der to obta in a loan using fra udulent documents. F urther, 18 U .S.C. § 2 provides that

“ [w]ho e ve r c omm its an o ff e ns e a g a ins t th e Un ite d Stat es or a ids , a be ts, c ouns e ls, c omm and s, induces or pr ocure s its commis sion, is punis hable a s a principa l.” 1. Coun t T

wo Count T wo a lle g e s th a t B ull oc k a nd Ray bo rn , a idi ngand

a be tti nge a c h o the r, c o mm i tt e d ma il fra ud in order to ob t ai n t h e o ri ginal loan. For the re asons alre ady

stated above , there is sufficient evidenc e to sustain Bullock’ s conviction on this count. The e vidence shows that Bullock, a lthough a war e of the Ray

borns’ modest income f

or the y ear s of 2000 and 2001, a ssisted them in obtaining a $498,750 l o an . Do cuments subm itted at Bullock’ s trial clea

rly showed that the tax returns mailed to Wells Fa rg o wer e not duplicates of the Ray borns’ a ctual 2000 and 2001 I RS return s , as W ells Fa rg o had re quested. A r easona ble juror could also find, base d on the documentary evidenc e and testimony , that Bullock prepar ed and sig ned the fr a ud ule nt r e tur

ns . T he se fr a

ud ule nt r e tur

ns , a lon g wi th o the r l oa

n d oc ume nts , w e re se nt v iaNo. 05-6741

United States v. Bullock Pag e 10 F e de ra l E xpre ss t o We lls F arg o. Th e jur y c ou ld h a ve fo un d that Bu llo c k ha d kno wl e dg e , o r t hat a

re a so na ble pe rs on

wo uld have fo re se e n, that a

c omm on carrier

wo uld be us e d to tr ans mit

the se documents. There fore , a re asonabl e j u ror c ould have f ound bey ond a re asonable doubt that there w as sufficie nt evidence to justi fy a convic tion under Count Two.

2. Coun t Three Count Three a lleg es that on or ab o u t Ap ri l 2, 2002, and lea ding up to Oc tober 20, 2002, Bullo c k an d Ra

y b o r n , a id in g an d a

b e tt in g e a c h o th e r , c o mm itte d ma il f r a u d

. T h u s , th is count incorpora tes the procur ement of the ref inancing loan. Bullock “conte nds that there is no proof in the

rec ord to show that he was awa re of or even kne w of the r efina ncing of Ge rald Ray

born’s home,” and as suc h, his conviction on this count canno t s t an d

. Appellant’s B r. at 11. He argues that the g overnme nt failed to pre sent evidenc e showingthat he possessed know ledg e of the ref inancing , or that it was fore seea

ble that the Ray

borns would attempt to ref inance their loan. We hold that a rea sonable juror could have found that B ullock knew about the re financ ing loan and he lped the Ray borns to obtain it. I n addition to the evidence relating to B ullock’s involvement that we have already discussed, there was a

cruc ial piece of evide nce that tied Bullock’s

a c tio ns dir e c tly to the ref inancing loan: on the forg ed J une lease which was used to he lp R ay b orn obtain the re financ ing loa n, Stacy J ohnson’s name was misspelled. Stacy J ohnson herse lf testified that she had n ev er signe d the lease . Be cause it was hig hly unlikely that Ray born would have misspelled his daug hter’s na me, the jury

at B ullock’s trial could have re asonably conc l u ded that someone other

than Ger ald Ray

born had dr awn up the phoney lease ag ree ment. Fur ther, given thatNo. 05-6741

United States v. Bullock Pag e 11 a handwriting a

naly st had conc luded that B ullock probably forg ed Bonnie Ray

born’s signature on other doc uments, a re asonable juror could have found tha t Bullock for g ed Johnson’s si gn at ure a s

we ll. Vi e wi ng the e vid e nc e in the lig ht mos t favo ra ble to t he g ov e rnme nt, the re is e no ug h to su sta in Bullock’ s conviction for a iding a nd abetting Ray

born in the commi s s i o n o f mail fra ud for the purpose of

obtaining the ref

inancingloan. III

. F or the re a so ns ou tli ne d a

bo ve , B ull oc k’ s c on vic tio n is AF F IRM ED