NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0168n.06 Nos. 10-1413, 10-1415
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DANI ELVANDE RZWAAG a nd PATRI CI A VAND ERZ WAAG, Def endant- Appellants. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Be fore : BOG GS and WHI TE, Circuit J udg es; and B ERTEL SMAN, District J udg e. *
BO GGS, Circuit J udg e. Daniel and Patricia Vande rZ waa g , husband and wife, obtained two mortg ag es on the same piece of proper ty , 2121 Oak Hollow Drive in J enison, Michig an. For the first mortg ag e of $175,000, obtained from Acc redited Home Financ e, Daniel supplied false information about his employ

ment history

and ea rning s. For the second mortg ag e of $137,250, obta ined from Option One, Daniel sup p li e d f a ls e in f o r ma tion about his employ

ment history and ear

nings, and failed
to disc l o s e t o t h e lender that the same proper ty had alre ady been pledg ed as collater al to the first mortg ag e. These two acts serve d as the basis for coun t s 1 an d 2 o f the second superse ding indictment. Count 1 alleg ed a violation of the mail-fra ud statute, 18 U.S.C. § 1341. Count 2 alleg ed

T h e H o n o r a b l e W i l l i a m O

. B e r t e l s m a n , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e E a s t e r n D i s t r i c t o f K e n t u c k y , *
s i t t i n g b y d e s i g n a t i o n .Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al.

a violation of the wire- fra ud statute, 18 U.S.C. §§ 1343. Both counts also alleg ed a violation of the aiding -and- abetting statute, 18 U.S.C. § 2. The g overnme nt alleg es that Patricia tr ansfe rre d part of the loan proceeds from the Option
One mortg ag e from one of her bank acc ounts to another

. The g overnme nt char g ed in count 3 of the indictment that this act violated the money -launde ring statute, 18 U.S.C. § 1957. The g overnme nt further alleg es that Patricia applied for a mortg ag e from National City Ba nk on another proper

ty , 4233 Creek View Drive in Hudsonville, Michig an, and supplied a false social secur ity number and false ear ning and i ncome statements. For this, the gove rnment broug ht count 4 of t he indi ctment, alleg ing a violation of the bank-f

raud statute, 18 U .S.C. § 1344(1).
Da n i el and Patricia, who are repr esente d by the same attorney on appea l—and we re
repr esente d by the same attorney during trial, though t h e t ranscript of the proce eding wher e any conflicts of interest wer e waived seems to be curiously absent from the rec ord —collectively raise 1
five issues on appea l. F irst, Daniel and Patr icia eac h contend that the convictions on counts 1 and
2 should be reve rsed beca use the indictment and j u ry instructions improperly stated that eac h defe ndant could be found g uilty both as a principal and as an aider and abettor. Second, Daniel and Patricia contend that there was insufficient evidenc e to convict them on counts 1 an d 2

. Third, Patricia contends that there was insufficient evidenc e to convict her on count 3. Four th, Patricia

D e f e n d a n t s c h a r a c t e r i z e t h e m i s s i n g t r a n s c r i p t i n t h i s m a n n e r : “ W h i l e D e f e n d a n t V a n d e r Z w a a g h a s o r d e r e d e v e r y 1 t r a n s c r i p t i n t h i s m a t t e r , h e h a s y e t t o b e p r o v i d e d t h e t r a n s c r i p t f o r t h i s a r r a i g n m e n t w h e r e t h e p a r t i e s a l l e g e d l y w a i v e d t h e i r v a r i o u s c o n f

l i c t s o f i n t e r e s t i n v o l v i n g d e f e n s e a t t o r n e y C h a r l e s R o m i n g e r . F u r t h e r , t h e r e a r e s o m e f i n a n c i a l d i f f i c u l t i e s i n p a y i n g f

o r t h e p r e p a r a t i o n o f t h e t r a n s c r i p t s . H o w e v e r , D e f e n d a n t

- A p p e l l a n t , t h r o u g h f a m i l y a n d f

r i e n d s , i s a t t e m p t i n g t o o b t a i n t h e t r a n s c r i p t f r o m t h i s h e a r i n g s o t h a t i t c a n b e a v a i l a b l e f o r t h i s c o u r t ’ s r e v i e w . ” A p p e l l a n t D a n i e l B r
. a t 7 n . 1

. F u r t h e r i t s e e m s t h e t r i a l a t t o r n e y w a s u n d e r i n v e s t i g a t i o n f o r t a x f r a u d b y t h e g o v e r n m e n t a t t h e t i m e o f h i s r e p r e s e n t a t i o n . I d

. a t 1 6

. - 2 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. contends that there was insufficient evidenc e to c onvict her on count 4. Fifth, Patricia alleg es that the sent en ci n g g uidelines wer e improperly calc ulated, the loss was improperly calc ulated, her criminal hist o ry l ev el over- stated her past crimes, the district court g ave undue weig ht to the
g uidelines, and the district court failed to consider the fac tors set forth in 18 U.S.C. § 3553(a)

. We aff irm the opinion of the lower court on a ll issues.

I Both Daniel and Patricia challeng e the indictment a nd the jury instruction sta ting that eac h could be found guilty as bot h a principal and as an aider and abettor. Daniel asser t s that he could only be found g uilty as a principal, and not an aider and abettor. Be cause he “applied for the loans,” Daniel arg ues, “he could not be found g uilty as an aider and abettor.” Appellant Daniel Br. at 18. Conversely , Patricia asserts that she could only be found guilty as an a ider and abettor, and not as

a principal: “Da

niel Vande rZ waa g was the only person who had a leg al duty to provide acc urate and truthful information to the companies issuing t h e mortg ag es in those two counts.” Appellant
Patricia Br. at 21. I n eff ect, both defe nd an t s conce de they committed crimes in one of the roles alleg ed in counts 1 and 2—Daniel as a principal, and Patricia as an aider and abettor—but arg ue that, due to the conjunctive, rathe r than disjunctive, nature of the indictment, jury instructions, and verdic t form, the c onvictions must be rever sed. Patricia further arg ues that beca use she had no leg al rela tionship with either of the lender s, she had no leg al duty to provide acc urate information, and thus could not be found “g uilty of fra ud either as an aider and abettor or as a principal.” Appellant Patricia Br. at 26. Patricia also contends that “[g]iven t h at s he did not apply for either t he Accre dited or Opti on One loans, any ‘fr aud’ she - 3 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. committed must be as an aider and abettor.” Id. at 29. These two prec eding statements seem to be
contra dictory

. F in a lly , Patricia arg ues that “the I ndictment, J ury I nstructions, and Ver dict For m wer e insufficiently specific as to the theory of criminal liability , cr eating the possibili ty she was found
g uilty of the offe nse as a

principal or tha

t the verdic t was not unanimous on the theory of criminal liability .” Id. at 26 . Wit h respe ct to Daniel’ s appea l, the g overnme nt counter s that “ther e was evidenc e i n the

rec ord s u p p o rt i n g the defe ndant’s g uilt under both theories, as there was proof that he did not
persona lly provide the false information submitt ed in c onnection with the loans.” Appellee Daniel
Br. at 13. Fur

ther, the district court’s failure to require “the jury to return a specia l verdic t indicating the theory of culpa bility it relied on to convict the de fenda nt” di d not constitute plain err or. Ibid

. Wit h respe ct t o P at ri ci a’s appea l, the g overnme nt contends that “an aiding and abetting theory is alway s available to the prosecution, whether or not it is expli citly stated i n the charg es.” Appellee
Patricia Br. at 20. And, as with Daniel, “ther e was no need to ask the jury

. . . to specify what theory it based its guilty

verdic ts upon.” Ibid.
II Trial counsel made no objection to the indictment or the jury instructions. Be cause these alleg ed

err ors wer e not prese rved at trial, plain err or analy sis applies. I n such situations, this court has held 2
that a defenda

nt’ s co n v i ct i on must be upheld unless “the recor d is devoid of evidenc e point ing to

D a n i e l m e n t i o n s a l m o s t i n p a s s i n g t h a t h i s 6 t h A m e n d m e n t r i g h t t o e f f e c t i v e a s s i s t a n c e o f c o u n s e l w a s v i o l a t e d , 2 A p p e l l a n t D a n i e l B r
. a t 1 7 , a n d t h a t t h i s i n e f f e c t i v e a s s i s t a n c e m a y h a v e r e s u l t e d i n t h e f a i l u r e t o p r e s e r v e i s s u e s o n a p p e a l

. I d

. A t 1 9

. T h e g o v e r n m e n t d o e s n o t a d d r e s s t h i s i s s u e , w h i c h d o e s n o t s e e m t o b e r e l e v a n t , o r p r o p e r l y b e f o r e t h e c o u r t

. - 4 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al.
g uilt.” United States v. Frazier , 595 F.3d 304, 306 (6th Cir. 2010) (citing United States v. Mack , 159 F.3d 208, 216 (6th Cir. 1998)). We revie w a challeng e to jury instructions “as a whole to deter mine whether they fairly and acc urate ly inform the jury of rele v an t considerations and explain the applicable law.” United States v. Prince , 214 F.3d 740, 760- 61 (6th Cir. 2000).
III
I n short, defe ndants arg ue that the indictment, jury instructions, and verdic t form were improper beca

use they did not specify upon which theory of liability eac h could be convicted. Count

one of the Second Superseding I ndictment, labeled “Mail Fr aud,” char g es Patricia and Daniel with

eac h violating both 18 U.S.C. § 1341 and 18 U.S.C. § 2. L ikewise, count two of the Second Superseding I ndictment, labeled “Wire Fr aud,” char g es Patricia and Daniel with eac h violating both
18 U.S.C. § 1343 and 18 U.S.C. § 2. The verdic t f orm for Counts 1 and 2 of the indictment r eads as follows: 1. As to Count 1, charg ing de fenda nts with mail fraud, we find the def endants: A. Patricia V ander

Z waa g ____ Not Guilty ______ Guilty
B. D aniel Va

nderZ waa g ____ Not Guilty ______ Guilty 2. As to Count 2, charg ing de fenda nts with wire fra

ud, we f ind the defe ndants: A. Patricia V ander

Z waa g ____ Not Guilty ______ Guilty
B. D aniel Va

nderZ waa g ____ Not Guilty ______ Guilty The co u rt gav e t h e jury the following instruction with respe ct to the aiding and abetting offe nse:

- 5 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. For y ou to fi n d t h e defe ndants g uilty of eac h of the crimes char g ed in Counts One and Two of the Superseding I ndictment, it is not nece ssary for y ou to find that he or she persona lly committed the crime. You may also find him or her g uilty if he or she intentionally

helped someone else to commit the crime. A person who does this is called an aider and abettor. But for y ou to find the defe ndants g uilty as an aider and abettor, y ou must be convince d that the g overnme nt ha s proved eac h and ever y one of the following elements bey ond a rea sonable doubt: First, that the particula r crime char g ed was committed. Second, that the defe ndant helped to commit the cr i m e. And third, the defe ndant intended to help commit the crime. Proof that the defe ndant may have known about the crime, even if he or she was there when it was committed, is not enoug h for y ou to find him or her gu i l t y . Yo u can consider this in deciding whether the g overnme nt has prove d t h at h e o r she was an aider and abettor, but without more, it is not enoug h. What the g overn m ent must prove is that the defe ndant di d something to help t he crime with the i ntent that the crime was-- that the crime be committed. I f y ou are convince d the g overnme nt has proved all of these elements, say so by returning a g uilty verdic t on this char g e. I f y ou have a rea sonable doubt about any one of these elements, then y ou cannot find the defe ndant g uilty as an aide r and a

bettor.
As a logic al matter, defe ndants make a fair point—how can one person be both a principal, and at the same time an aider and abettor? Howeve r, this hy pothesis is not supported by the case law: the g overnme nt is not require d to choose one theory , and stick with i t

. “[T] he fac t that the
g overnme nt char g es violation of a statute by both principal liability and liability for aiding and abetting does not rende r an indictment duplicitous.” United States v. Banks , 27 F. App’x 354, 359 (6th Cir. 2001); United States v. Dean , 969 F.2d 187, 195 (6th Cir.1992) (same)

. This court has held that a single defe ndant “may be indicted for the com m i s s ion of a substantive crime as a principal offe nder and convicted of aiding and abetting its commission althoug h not named in the indictment

as an aider and abettor without violating fede ral due proce ss.” Hill v. Perini , 788 F.2d 406, 407 (6th Cir. 1986). I n United States v. Hopper , this court upheld a conviction wher e two defe ndants “we re char g ed both as principals under §§ [18 U.S.C.] 111(a) and 924(c) (1)( A)(ii) and under 18 U.S.C. § 2

- 6 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al.

as aider s and abettors.” 436 F. App’x 414, 421 (6th Cir. 2011). Even if the aider and abettor theory is not char g ed, a defe ndant can still be found to violate 18 U.S.C. § 2. See United States v. McG ee , 529 F.3d 691, 695 (6th Cir. 2008). The Six th Circuit has interpre ted aiding and abetting as a theory of l iability “embodied in ever y fede ral indi ctment, whether spec ifically char g ed or not,” and not a distinct subst antive cr ime. United States v. Floyd , 46 F.App’ x 835, 836 (6th Cir. 2002). Def endants cite case s from other circ uits for the proposition that for cer tain crimes, a person
cannot be found g uilty as an aider and abettor. See e.,g., United States v. Shear , 962 F.2d 488 (5th Cir. 1992); United States v. Falletta , 523 F.2d 1198 (5th Cir. 1975); United States v. Southard , 700 F.2d 1 (1st Cir. 1983)

. These case s are inapposite, and ref er to spe cific statutes wher e cour ts ha ve

car ved out exceptions wher eby a person cannot be found g uilty as an aider and abettor. Def endants

even c oncede that “the c ited case s do not directly addre ss whether

a per son can be found guilty as

an aider and abettor when the principal defr auds a l o an company ”—pre cisely the question in this

case . Appellant Patricia Br. at 28-29. The underly ing offense s for Count 1 and C ount 2, 18 U.S.C. §§ 1341 and 1343—con t rar y
to defe ndant’s protestations—are not “limited to a cer tain cate g ory of Def

endant,” and thus the “the law does . . . allow liability to attach under an aiding and abetting theory .” Id. at 29. The statutes speak g ener ally and broadly —both § 1341 and § 1343 beg in with “Whoev er , h av i n g devised or intending to devise any scheme o r artifice to defr aud, or for obtaining money or proper ty by

means . . . .” Neither mentions specific roles in the offe nse, such as principals, aider s, or abettors.
Be cause Congr ess did not “spec ify [] the kind of individual who is to be found g uilty ,” we cannot infer that Congr ess intended to exclude those acting in other roles—such as ai d er s and
- 7 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. abettors—f

rom being found guilty

. United St ates v. Southar d , 700 F.2d 1, 19- 20 (1st Cir. 1983). Cf. United States v. Amen , 831 F.2d 373, 381-82 (2d Cir. 1987) (“[w]hen Congr ess assig ns g uilt to only one ty

pe of participa

nt in a transac tion, it intends to leave the other unpunished for the offe nse”)

. Additionally , there is no require ment that the jury rec eive a specia l verdict for

m unle ss the char g e is complex or there is a fea r of jury confusion. United States v. Algee , 599 F.3d 506, 514 (6th Cir. 2010). This court has specific ally held that district courts are “not require d to give a specia l ‘unanimity instruction’” for aiding and abetting char g es. United States v. Holt , 108 F. App’x 325, 327 (6th Cir. 2004).
Her e, Daniel and Patricia wer e both put on notice that the g overnme nt was pursuing an aiding -and- abetting theory by the inclusion of 18 U.S.C. § 2 in Counts 1 and 2 of the indictment, and by the reque st for an aiding -and- abetting jury instructi o n . Whil e Daniel conce des liability as a principal but disputes liability as an aider or abettor, his subjec tive understanding of his r ole in the offe nse is larg ely irrele vant. The g overnme nt can choose to indict him under both roles, and reque st instructions for both roles. L ikewise, even though Patricia asser ts that she could n o t h av e been a principal in the off

ense, it is not duplicative to indict the same pe rson in two differ ent roles. Whil e it is impossibl e to deter mine whe t h er the jury convicted Daniel or Patricia or either
as a pr incipal or a s an aide r or a bettor, or both—and the district c ourt may have be en wa rra nted in issuing such a verdic t form if trial counsel had so reque sted—there is no require ment that the district
court provide the jury with a specia l verdic t form for an aiding and abetting char g e. This omission

can only constitute plain err or wher e “the rec ord is devoid of evidenc e pointin g t o gu i l t .” United - 8 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. States v. Frazier , 595 F.3d 304, 306 (6th Cir. 2010) (citing United States v. Mack , 159 F.3d 208, 216 (6 t h Cir. 1998)). This is not the case , as an ample fac tual rec ord exis ts to provide t h e j u ry wi t h
g rounds to find g uilt. Def endants fail to alleg e any proce dural-due -proc ess or other constitutional violations. The indictment, jury instructions, and verdic t form wer e appropr iate as to counts 1 and 2 for Da niel and Patricia

. IV Both Daniel and Patricia contend that there was insufficient evidenc e to convict them on
counts 1 and 2. Daniel arg ues that the materia l s tatements that he made about his ear nings to the loan companies wer e truthful, and that no contra ry evidenc e was prese nted as to Count 1 and 2.
S p ec i fi cally , he claims the loans in question wer e “stated” loans, such that only a person’ s ac t u al

cre dit history is rele vant t o t h e ap p ro v al o f the l oan—not t he (false) information provided on the application. Effe ctively , whateve r income Daniel repor ted to the mortg ag e company —whether true

or false—w as not rele vant to the approva l of the loan. Thus, Daniel arg ues that his statements could not be consider ed mater ial. Patricia’s arg ument reg arding the sufficie ncy of counts 1 and 2 b l urs somewhat with her

ear lier arg ument about her conviction as a principal and an aider or abettor. Patricia contends that there was sufficie nt evidenc e to justify a conviction as an aider or abettor, but insufficient evidenc e
to support a conviction as a principal. As d i s cu s s ed ear lier, the failure to supply the jury with a specia l verdic t form—the only means by which the court could have deter mined on which theory of liability Patricia was convicted on co u n ts 1 and 2—was not err or. Next, the sufficie ncy of the

- 9 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. evidenc e is considere d to deter mine whether any rational trier of fac t could find the elements of the crime pr oven bey ond a re asonable doubt, under e ither theory

. Specifica lly , Patricia arg ues that “[g]iven that she did not apply for either the Acc redited or Option One loans, any ‘fr aud’ she committed must be as an aider an d abettor.” Appellant Br.
P a t r i ci a at 33. “[B]eca

use Daniel Vande rZ waa g , and only Daniel Vande rZ waa g , applied for th e loans, only he had any duty to pr ovide acc urate and truthful information to the lender s.” Appellant
Br. Patricia at 29. Fur

ther, neither lender had the “rig ht to rely on any information provided by an outside person not part of the contra ctual loan information”—namely Patricia. Id. at 30. As a matter of law, she arg

ues, only Daniel could be found g uilty

. Additio n al l y , P at ri cia arg ues that as “a principal, none of her

‘ac ts’ or ‘state ments’ could have a natur al tendenc y to inf luence a person of ordinary prudenc e or compre hension, beca use she had no obliga tion to provide any info rm ati on, truthful or otherwise, to the loan companies. I f the loan office rs chose to listen to her, as an outsider
to the contra ctual rela tionship, that decision was foolish and cer tainly not rea sonable.” Appellant Br.
Patricia at 34. Patricia also concur s with her co-de fenda nt that Daniel’ s “mater ial statements wer e not fraudule nt and, he, a s principal, did not commit the substantive offense .” Id . at 35. The g overnme nt contends that it proved Daniel, either as a principal or as an aider and abettor, made materia l false statements in connec tion with the loans. T h e g overnme nt proved materia lity throug h testimony showing that “wa g e and employ ment information is alway s important
to lender s,” that “the information was require d by lender s and could aff ect the outcome of the loan decision,” and that “borr ower ’s employ ment information influence s the lending decision beca use it

- 10 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. bear s on the borrowe r’s ability to repa y the loan.” Appellee Br. Daniel [Unit ed S t ates’s Appellee brief to Da

niel’s Appellant br ief] at 20-21. Wit h respe ct to Patricia, the g overnme nt arg ues that “re cord here shows that she was deeply involved in the fra

udulent scheme , and t o o k the lead in supply ing false information on loans

o b t ai n ed b y Daniel Vande rZ waa g .” Appellee Br. Patricia at 25. Specifica lly , the g overnme n t introduced testimony that Patricia “wa s th e o n e w h o first contac ted the mortg ag e broker who handled the Acc redit ed m o rt gage , ” serve d “as the person who kept in contac t with him during the loan
proce ss,” and “pre sented false employ ment verific ations.” Id. at 25-26. The g overnme nt asser ts that the “jury was entitled to conclude that she intended to take these actions to assist the fra ud beca use the money obtained from Acc redited paid off a debt she owed, and she used the Option O ne funds to pay other bills.” Ibid. Trial counsel never made a motion for a judgme nt of acquittal under Fe dera l R ule of Criminal Procedur e 29. I n such case s, a conviction must be upheld unless “the rec ord is devoid of evidence pointing to g uilt.” United States v. Frazier , 595 F.3d 304, 306 (6th Cir. 2010) (ci t i n g United States v. Mack

, 159 F.3d 208, 216 (6th Cir. 1998)). Under this standard, defe ndants do not
preva il. The g overnme nt put forth sufficie nt evidenc e to show that Daniel’ s false statements would be capa ble of aff ecting the outcome of the loan decision, even if the loan decision was based purely

on Daniel’ s cre dit score . See, e.g., United States v. Daniel , 329 F.3d 480 , 4 8 6 (6 t h Cir. 2003) (holding actua l relianc e is not require d to satisfy the materia lity require ment). See also United States

v. McAuliffe , 490 F.3d 526, 531 (6th Cir. 2007) (citations omitted). Wit h respe ct to Patr icia, there

was more than enoug h testimony adduce d at trial to permit a rational finder of fac t to deter mine that - 11 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. she was g uilty

. Her actions in prese nting false information and procur ing the loan are sufficie nt to
meet all of the elements of the crime. Even with some conflicts of testimony betwee n t h e
g overnme nt witnesses, and the defe ndants’ witnesses it cannot be said that “the rec ord is devoid of evidenc e pointing to g uilt.” Frazier , 595 F.3d 304, 306 (6th Cir. 2010) (citing Mack , 159 F.3d at 216). There was suff

icient evidenc e to support the convic tions of Daniel and Patr icia on counts 1 and 2.
V Patricia further contends that there was in s u ff i ci ent evidenc e to support a conviction on
count 3 of the indictment, the money -launde ring char g e. As discussed above, beca use trial counsel

never moved under Fe dera l Rule of Criminal Procedur e 29 for a j u d gm ent of acquittal, the conviction must be upheld unless “the rec ord is devoid of evidenc e pointing to g uilt.” Frazier , 595
F. 3 d at 306. Patricia’s arg ument for count 3 is premised on our resolution of her sufficien cy

ar gu m en t for count 2—“[i] f this Honora ble Court finds that there was insufficient evidenc e t o convict Daniel VanderZ waa g and/or Patricia Vande rZ waa g of the acc usations in Count 2, then Def endant- Appellant’s c onviction on Count 3 m ust be reve rsed.” Appellant Br. Patricia at 36. By her own admission, if we reje ct her arg ument on count 2, her arg ument for count 3 falls.
As previously discussed, t here was sufficient evidence to jus t i fy the conviction of C ount 2. This

ar gu m ent, by Patricia’s own conce ssion, must fail. Notwithstanding this conce ssion, as the
g overnme nt notes, Patri ci a “p l ay ed an active, intentional role in supply ing false information to Option One,” “provide d the mortg ag e broker with false ear nings information rela ted to Daniel,” and falsely indicated that the proper ty had no liens on it. Appellee Br. Patricia at 30. I n any event, these

- 12 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. fra udulent statements contributed to the loan awa rded from Option One bank. Patricia subsequently wired this money from one bank acc ount into another

. This evidenc e at trial is sufficie nt to support a convic tion for money

launder ing.
VI Next, Patricia challeng es t he sufficiency of t he evidence for count 4 of her indictment, the bank-f raud conviction. Patricia arg ues that any false statements she made to National City Ba nk to obtain a loan—including providing a false social secur ity number —wer e not materia l. Appellee Br.
Patricia at 37. Fur

ther, there was “insuffic ient evidenc e on whether she intended to defr aud National City .” Ibid. Def

endant’ s conce ssion—that she k n o wi n gl y provided a false social secur ity number—see ms to underc ut her sufficie ncy arg ument. She knowing ly and intentionally g ave a false social securit y n u m b er to a bank to obtain a mortgag e. Wit nesses during trial from National City
Ba nk testified that the social secur ity number was important to the loan decision, and would impact the decision to g rant her the loan. Providing a false social s ec u ri t y number is patently materia l.
C er t ai n l y a rational juror could find that the rec ord has at least some evidenc e pointing to g uilt.
Be cause this err or was not prese rved, and is revie wed under a defe rential standard, this clam fails.
VII Wit h respe ct to sentenc ing, Patricia raises a host of issues: her g uidelines wer e not corr ectly calc ulated, the amount of loss was not proper ly calc ulated, her criminal hi s t o ry o ver- stated the seriousness of her criminal past, the court g ave undue deferenc e to the g uidelines, and the court failed to consider the fac tors provided in 18 U.S.C. § 3553(a)

. When revie wing the rea sonablene ss

- 13 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. of sentenc es, this c ourt employ s an abuse- of-discr etion standard. United States v. Moon , 513 F.3d 527, 539-40 (6th Cir. 2008).
A Patricia finds fault in t h e district court’s calc ulation of the amount of loss under USSG § 2 B1.1 at approximately $231,000. During sentenc ing, the district court made the followin g somewhat-c omplicated ca lculation of losses (with explanatory calc ulations italicized in brac kets):
As it re lates to calc ulation of loss, the Court believes that the g overnme nt has sustained its burden to s h o w a l o s s of $231,000 or $232,000 and in the manner in which the Court c a lc u lates that is as follows: $25,500 approximately to Merr ill L y nch [representing the shortfall Merrill Lynch, the first li e n holder expe rience d on the first mortg a g e Da n iel obtained from Acc redited Home Finance on 2121 Oak Hollow D r iv e ], $35,000 to Citi Group [ represe nting the shortfall Citi Group—the seco n d li e n holder on 2121 Oak Hollow Drive— ex p er ience d; the note was neve r released ]. $137,162 to Option One [ the second mortgage that Daniel took on 2121 Oak Hollow Drive ]. And the National City Ba n k l o an [ for the mortgage Patricia took on the property at 4233 Creek

View Drive] is the one that is m ost perplexing to the Court t o try to come to some appropr iate loss fig ure for that particula r l o an . T h e g overnme nt's sug g estion that I depre ciate the appra isal by 15 perc ent, the Court will acc ept that as an acc urate appra isal of the house based on the testimony

. We are in the State of Michig an. The State of Michig an is at the bottom of the economic wrung [ sic ] in the country on most measure ment, and cer tainly rea l estate has taken a signific ant hit acr oss the state, inclu d i n g co m m u nities such as Hudsonville. So I think a 15 perc ent depre ciation is appropr iate from the appra isal of $240,000 [ t h e assessed price at the time National City Bank mad e t h e l o a n was $240,000; the deprec iated price of the house at the t i me o f s en t encing was $204,000 ( 240,000

– ( 240,000 * 0.15)

) ]. At the t ime that the l oan was made [ in 2007 ], the l oan amount is $237,500, resulting in a loss of $33,500 if the hous e wa s sold at the time [ that is the difference between $237,500 ( the price of the loan in 2007) and $204,000 ( the deprec iated price of the house in 2009) ; in other words, the property lost $33,500 in value ]—at the adjusted appra ised value, of course , sales are made by willing buy ers and will ing s ell ers, and the fact that the hous e is still in fore closure and apparently has not been sold, makes it difficult, but I think the g overnme nt's sug g estion and the g overnme nt's proofs are sat isfactor y . As far as the Citi Group loan is conce rned [ $35,000 ], what was orig inally from Acc redited [ Home Finance ], there has been no

- 14 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. rele ase of lien. Acc o rd i n gl y , the C ourt conclude s, based on the i nfer ence s and the testimony , as well as the proofs at trial, that the appropr iate amount to apply there is $35,000

. So the loss is calc ulated, as I ' ve s aid, will be set at $231,000 [ the court arrived at this number by adding $25,500 from the Merrill Lynch lien, $35,000 from the Citi Group lien, $137,162 from the Option One mortgage, an d $ 3 3 ,500 represe nting the loss due t o deprec iation from the mortgage from National City Bank, totaling $231,162 ] or $232,000 that rea lly doesn' t—that $1,000 doesn' t make a differ ence beca

use the cut is at $200,000 and $400,000, so the Court will apply twelve levels at Parag raph 24 resulting in, and then—rig ht, twelve l evels at Parag raph 24. Sent. Tr . 56-57 (e mphasis added)

. Patricia disputes a total of $68,490.20 f rom the t otal amount of $231,162 t he district cour t

ca l cu lated: “wor se [ sic ] case scena rio, summarizing the ‘ac tual loss’ suffe red or g iving cre dit for
‘cr edits ag ainst loss,’ the banks/mortg ag e lender s have suffe red losses in th e a mo u n ts of $137,162.30 (Law y er s T i tle I nsuranc e) plus $25,510.50 (Mer rill L y nch) on the Oak Hollow Drive proper ty , totaling $162,672.80” (231,162-162,672.80= 68,489.20) Appellant Br. Patricia at 40. I t is unclea r if Patricia includes this “wor st case scena rio” as a hy

pothetical, or as a calc ulation that can constitute

a wa iver. Patricia does not specific ally brea k down this $68,490.20, but we presume that she disputes the $35,000 from the C i ti Group lien, and the $33,500 from the loss due to depre ciation from the National City Ba

nk mortg ag e on the Creek View Drive proper ty —they total $68,500, close enoug h
to $68,490.20. I t is not clea r from her brief why Patricia disputes the inclusion of Citi Group’s lien for $35,000. Ibid. Wit h respe ct t o the $33,500 discounted due to deprec iation of the Cree k View Drive proper

ty , Patricia makes two rela ted arg uments—one empirica l, one leg al. First, she asser ts that the g overnme nt failed to meet its burden of proof about the prese nt-day value of the proper ty

.

- 15 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. Patricia would impose on the gover nment the burde n of obtaining an appraisal of the C ree k View Drive pr operty

. Over protest from defe nse counsel, Sent. Tr. 31, 33, the court re l i ed on a 2009 G R A N D RA P I D S P R E S S article that illust rate d the depre ciation rate s of Michig an rea l estate. Id

. at 57. Whil e
t h e co u rt did not take judicial notice of the article , a district court is responsible for making a “re asonable estimate of the loss.” United St ates v. Paris h , 565 F.3d 528, 534-35 (8th Cir. 2009). Reasonable ness does not require exact computation. Fur ther, there is no obliga tion imposed by the

case law fo r the g overnme nt to obtain an independe nt appra isal of the proper ty —the approa ch Patricia reque sted—in order to calc ulate the value of a proper ty

. For purposes of sentenc ing, in the absenc e of a rec ent appra isal, relianc e on the article was a rea sonable means to calc ulate the prese nt value. Second, Patricia asser ts that the loss from the National City Ba nk loan secur ed by an interest
i n the Creek View Drive proper ty should be calc ulated based on “ac tual” loss, rathe r than th e intended loss. Appellant Br. Patricia at 39. The sentenc ing court, she arg ues, should have g iven

cre dit for the amount of secur ed interest that the bank had ag ainst the value of the loan. “Since that
proper ty has not y et been sold, there is a valid leg al mortg ag e ag ainst the Creek View Drive proper ty and there fore there cannot be an ‘intended’ loss.” Id. at 41

. Fi n al l y , Patricia contends that she should be “e ntitled to a ‘cre dit’ based on the va lue of the home .” Ibid. Patricia cites sever al case s in this circ uit that ref lec t an o l d er version of USSG § 2B1.1, previously desig nated as § 2F1.1 (the two sections wer e consolidated in 2001) to support an “ac tual” loss method of calculation—wher e a bank loan i s s ec u re d b y an int ere st in rea l proper ty , any loss - 16 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. calc ulation should be based on “ac tual” loss. See United States v. Lavoie, 19 F.3d 1102, 1105 (6th Cir. 1994) (“T his Court has expl icitly rec og nized that the l oss calc ulation of US SG. § 2F1.1(b) in

case s of fraudulently induced bank loans shou l d b e based on the ‘actual’ or ‘expected’ loss rathe r than on the face value of the t otal amount of t he loan procee ds.”); United States v. Chichy, 1 F.3d 1501 (6th Cir. 1993); and United States v. Moore d , 38 F.3d 1419 ( 6th Cir. 1994). The g overnme nt pref

ers the approa ch of the Eig hth Circuit that interpre ts the curr ent USSG § 2B1.1. “As rec og nized by the Guidelines, the damag e wroug ht by fra ud is sometimes difficult to calc ulate.” United States v. Parish , 565 F.3d 528, 534 (8th Cir. 2009) (quoting Un i t ed States v. Agboola , 417 F.3d 860, 8 70 (8th Cir. 2005)). The Parish court held that a district court is responsible making a “re asonable estimate of the loss,” and approve d of the district court’s method of mea suring loss by

starting with the amount loaned a s a re sult of the fra ud, reduc ed by the value of the collater al pledg ed. Parish , 565 F.3d at 534-535. The g overnme nt does not cite any case s from this circuit to the contra

ry . Comment 3(a) to USSG § 2B1.1 provides that “loss is the g rea ter of actua l or intended loss.” When a district court is not able to ca lculate the loss, the c ommentary to the g uidelines permit the
court to base the p u n i s h m en t o n the defe ndant’s g ain. USSG § 2B1.1 n.3(B ). Where the fra ud

occur s in connec tion with collater al pledg ed for a mortg ag e, the defe ndant is entitled to a reduc tion
in the loss amount as a result of the sale of the collater al, or the fair marke t value at t h e t i m e o f
sentenc ing. U SSG § 2B1.1 n.3(E)( ii). The district court calc ulated the actua l loss, rathe r than the intended loss. Patricia’s relianc e

on Lavoie and its prog eny —which support the district court’s decision—to arg ue to the contra ry is - 17 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. misplaced. By depre ciating the price of the proper ty , the court made a “re asonable estimate,” Parish , at 534, of the actual loss of the proper ty value betwee n 2007 and 2009. This is not an intended, or expected loss calc ulation, as Patricia claims. To arr ive at the actua l loss the district court considere d leng thy sentenc ing memoranda , and held an evidentiar y hear ing. I n any event, it cannot be said that the cour t clear ly err ed.
B Patricia objects to a two-leve l enhanc ement under USSG § 3C1.1 for obstruction of justice. First, she arg ues that she did not make any statements during trial. This arg ument is unavailing , as the enhanc ement permits consideration of conduct that occur red outside of trial. Alterna tively , she contends that any “alleg ed false statements [m ade during the orig inal interview with Special Ag ent Gilligan] wer e neither materia l nor did they seriously impede or obstruct the investiga tion in this

case .” Appellant Br. Patricia at 47. During the sentenc ing hear ing, Special Ag ent Gilligan testified

at l ength that Patricia made false statements to her—Patric ia told her that the Social Securit y Administration issued her a new social secur ity n u mber beca use of identity theft. This never happene d. The false information led Gilligan on a wild-g oose chase , as she spent time and resour ces investiga ting the supposed issuance of a social secur ity number that did not exis t. The district court

acc epted Gilligan’ s testimony

. Patricia provides no plausible rea son why this finding of fac t—the basis of the e nhance ment—was c lear ly err oneous. C
Be y ond the loss calc ulation and obstruction enhanc ement, Patricia asser ts an amalg am of
sentenc ing c halleng es that blend tog ether . She faults the district cour t’s decision not to vary

from - 18 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al. the g uideline rang es due to policy considera tions, citing the steep incre ase in the base offe nse level for fra ud case s over the last twenty y ear s. Appellant Patricia Br. at 42. Patricia objects to the fac t that “any loss in excess of $30,000.00.

. . . call[s] for a prison term (Z one D).” Id. at 46. She claims that the court’s sentenc e did not meet the g oals of 18 U.S.C. § 3553(a) (2). Ibid. Patricia also arg ues
t h at h er cr i m inal history was overstate d, id. at 48, and contends that the court should have varie d from the Guidelines rang e beca use “only one victim suffe red a substantial loss in ex cess of $137,000.00.” Id. at 50. Eac h of these a rg uments is unavailing. The district court, citing its authority under Kimbrough v. United States, 552 U.S. 85 (2007), made clear that i t re co gn i z ed that it had the ability to disreg ard the g uidelines; y et, i t chose not to exercise that discr etion. A sentenc e is not unrea sonable mer ely beca use the district cour

t declines
to vary on policy g rounds. United States v. Guest , 564 F.3d 777, 780 (6th Cir. 2009); United States

v. Ultsch , 578 F.3d 827, 830-31 (8th Cir. 2009) (“While the district court may have been fre e to vary from the g uideline based on policy conce rns, the Supreme Court's rec ent decisions ‘do not hold that a dis trict court must disag ree with any sentenc i n g g uideline, whether i t ref lects a policy judgme nt of Cong ress or the Commi ssion’s ‘cha rac teristic’ e mpirical approa ch.’” ) (quoting United States v. Barron , 557 F.3d 866, 871 ( 8th Cir. 2009)).
L ikewis e, t h e district court considere d Patricia’s arg ument to reduc e the criminal history
cate g ory , but reje cted it in light of the fac t that a number of her convictions—which wer e rela ted to fra ud and theft—we re not c ounted. The district c ourt noted that it wa s “dumb struck” by the g rea t number of prior convictions, all for theft and fra ud offe nses. Sent. Tr. at 74. Finally , the failure to

- 19 -Nos. 10-1413, 10-1415

United States v. Danie l VanderZwaag, et al.
vary downwar d was n o t er ro r, as the court fully explored the 3553(a) fac tors during the leng thy colloquy

.

VIII The judg ments and sentenc es of the district c ourt are AFF I RMED.

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