United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3802

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Alpha Rashidi Mshihiri

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the District of Minnesota - St. Paul

____________

 Submitted: October 19, 2015

 Filed: March 14, 2016

____________

Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.

____________

WOLLMAN, Circuit Judge.

Alpha Rashidi Mshihiri was convicted of one count of conspiracy to commit

bank fraud, in violation of 18 U.S.C. §§ 1344 and 1349; three counts of bank fraud,

in violation of 18 U.S.C. §§ 1344 and 2; one count of mail fraud, in violation of 18

U.S.C. §§ 1341 and 2; and one count of wire fraud, in violation of 18 U.S.C. §§ 1343
and 2. The district court sentenced Mshihiri to 150 months’ imprisonment and

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ordered him to pay restitution in the amount of $1,971,091.91. We affirm.

I. General Background

Mshihiri has a bachelor’s degree and had worked as a business analyst for a

large national bank, servicing a no-money-down mortgage product. In 2003 or 2004,

Mshihiri founded a mortgage company named GWP Mortgage (GWP), at which he

served as president and chief executive officer. He became a licensed mortgage

broker in Minnesota in 2005. 

At GWP, Mshihiri supervised the processing of loan applications; he was also

responsible for compliance with state and federal law; he formed GWP’s policies,

directed its initiatives, and managed its day-to-day operations. In October 2007,

GWP went out of business and filed for bankruptcy. Its operations, however, carried

on through two successor companies, Pristine Home Loans (Pristine) and Pristine

Finance. Pristine was located in the building where GWP had operated, and it

employed many of the individuals who had worked for GWP. Mshihiri identified

himself as a consultant to Pristine and as CEO of Pristine Finance. Mshihiri also

formed Kilimanjaro Investment Group (KIG), which bought and resold foreclosed

properties, and a company called VANY, which was also used in real estate

transactions. As explained more fully below, Mshihiri used these companies in an

elaborate mortgage fraud scheme.

In July 2013, a grand jury returned an indictment charging Mshihiri with the

countsset forth above. The indictment alleged that Mshihiri had engaged in a scheme

to defraud mortgage lenders from June 2006 through April 2009. Specifically, the

The Honorable David S. Doty, United States District Judge for the District of 1

Minnesota.

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scheme involved obtaining funds from financial institutions by recruiting straw

buyers to participate in the purchase of residential properties and submitting false

information and documentation in support of their mortgage applications. The

indictment identified four properties involved in the scheme: a penthouse

condominium in Bloomington, Minnesota (the Penthouse); a duplex in Minneapolis,

Minnesota (the Inglewood Duplex); a single-family home in Minneapolis (the 33rd

Street Property); and Mshihiri’s own single-familyhome in Independence, Minnesota

(the Broadmoor Residence). With inflated purchase prices and, in most cases, sales

by a co-conspirator to a straw buyer, Mshihiri and others derived profits from the

sales of the properties. Recruiters, brokers, loan officers, and others were paid

kickbacks for their roles in the scheme. 

Mshihiri has raised several arguments on appeal. He contends that the district

court should have suppressed evidence seized pursuant to a warrant, as well as

evidence of statements that he made to federal agents. He also argues that the

government failed to prove a single conspiracy and that the evidence instead

established multiple transactions or conspiracies. He contends that the district court

should have suppressed his pretrial and in-court identification by a witness. Finally,

he claims that the district court made factual errors in determining his sentence. We

address each argument in turn, recounting additional facts as necessary.

II. Motion to Suppress Evidence

After Mshihiri became a suspect in a mortgage fraud investigation, federal

agents applied for warrants to search the Broadmoor Residence, Mshihiri’s laptop

computer, and his electronic storage devices. InternalRevenueService Special Agent

Jim Shoup submitted an affidavit in support of the warrants, stating that he had

interviewed a confidential reliable informant (CRI) on several occasions and that the

CRI had implicated himself and Mshihiri in fraudulent conduct. The affidavit set

forth specific acts completed by the CRI in furtherance of the mortgage fraud

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conspiracy, explaining that the CRI knew of Mshihiri’s fraudulent conduct “because

CRI #1 committed fraud with . . . Mshihiri.” Shoup also stated that he had reviewed

loan records, real estate purchase records, bank records, and state charging documents

that indicated that Mshihiri was involved in fraudulent conduct. Shoup attested that

the CRI had identified another individual, Oluwaleye Oluwatula, who had assisted

Mshihiri in fraudulent acts. When interviewed by Shoup, Oluwatula admitted that he

had worked with Mshihiri to obtain fraudulent mortgage loans. The applications for

the search warrants were granted, and agents searched the Broadmoor Residence on

June 30, 2010, while Mshihiri was traveling abroad.

On September 16, 2010, Shoup and United States Secret Service Special Agent

Michael Olson coordinated with Customs and Border Protection (Customs) officers

to interview Mshihiri and to execute a search of his laptop upon Mshihiri’s return

from Dar es Salaam, Tanzania. Accordingly, when Mshihiri arrived at the

Minneapolis-St. Paul International Airport, a Customs officer intercepted him at the

immigration entry point, led him to baggage claim, and then escorted him to a

reception area. 

According to Olson, he and Shoup met Mshihiri in the reception area, where

they identified themselves as federal agents and presented their credentials. They

asked whether Mshihiri would bewilling to speak with them, explaining that Mshihiri

was not under arrest or obligated to answer questions. Olson testified that Mshihiri

agreed to be interviewed and voluntarily accompanied them to an interview room. 

The agents entered the room first and sat at a table across from Mshihiri, who sat

“right next to the door.” The agents were wearing casual clothes, and Olson testified

that if he was wearing his service weapon, it would have been concealed. According

to Olson, no Customs officer was present during the interview. 

Olson described Mshihiri’s demeanor as calm, inquisitive, and alert. Using a

normal tone and volume, Shoup asked Mshihiri several questions about the suspected

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mortgage fraud, including whether Mshihiri’s wife wasinvolved. Mshihiri also asked

questions, trying to understand the purpose of the investigation. Olson testified that

during the forty-minute interview, Mshihiri did not request a break or try to access

his cell phone. He also did not ask to consult a lawyer or ask to call his wife so that

she could call a lawyer on his behalf. Olson testified that “[i]f [Mshihiri] would have

asked for a lawyer, we wouldn’t have questioned him.”

Shoup ended the interview abruptly, after changing the tone of his voice and

accusing Mshihiri of lying. Shoup gave Mshihiri a copy of the search warrant and

advised him that the U.S. Attorney’s office had issued a target letter for him. Olson

could not remember whether Mshihiri’s laptop was searched at the beginning or the

end of the interview, but he testified that he and Shoup searched Mshihiri’s person

after the interview ended. Olson testified that he and Shoup then left the airport and

that Mshihiri probably “went out the normal way, back out through the passport

control area in the main terminal.”

According to Mshihiri, a Customs officer escorted him to an interview room,

where he met Olson and Shoup. Mshihiri testified that he was exhausted from his

travels and the time difference. When Mshihiri asked to call his wife, the Customs

officer seized his cell phone, and thereafter told him, “You need to cooperate;

otherwise, your Immigration status is going to be compromised.” Mshihiri claimed

that the agents disregarded his request for an attorney and his request to call his wife

so that she could contact an attorney. As the interview continued, Shoup threatened

Mshihiri and his wife, saying that they were “going down” and that they should make

arrangements for their children. The Customs officer looked inside the interview

room numerous times during the interview. Mshihiri testified that he was never told

he was free to leave and that he answered the agents’ questions because he “didn’t

have a choice” and “it felt like [he] couldn’t get out of that room.” 

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Mshihiri moved to suppress the evidence seized as a result of the search

warrants and the statements he made during the September 16, 2010, interview. He

argued that the affidavit in support of the search warrants wasinsufficient to establish

probable cause, that the interview constituted a custodial interrogation during which

he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and

that the statements he made during the interview were not voluntary. Adopting the

report and recommendation of the magistrate judge, the district court denied the

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motion. 

Mshihiri first argues that the affidavit in support of the search warrant was

insufficient to establish probable cause because the affidavit wrongly identified the

CRI as a confidential reliable informant. According to Mshihiri, the CRI should have

been identified as a cooperating witness, and the CRI’s misidentification prevented

the issuing judge from making a fair probable cause determination. “As a reviewing

court, we pay ‘great deference’ to the probable cause determinations of the issuing

judge or magistrate, and our inquiry islimited to discerning whether the issuing judge

had a substantial basis for concluding that probable cause existed.” United States v.

Lucca, 377 F.3d 927, 933 (8thCir. 2004) (quoting Illinois v. Gates, 462 U.S. 213, 236

(1983)). An issuing judge considers two factors when considering a confidential

informant’s information: the informant’s reliability and the basis for the informant’s

knowledge. Id. Both factors, however, need not be present before a warrant may

issue. Id. The issuing judge considers the totality of the circumstances so that “a

deficiency in one [factor] may be compensated for . . . by a strong showing as to the

other, or by some other indicia of reliability.” Gates, 462 U.S. at 233.

The information provided by the CRI was sufficiently reliable to support a

finding of probable cause, regardless of manner in which he wasidentified. The CRI

The Honorable Jeffrey J. Keyes, United States Magistrate Judge for the

2

District of Minnesota.

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participated in the mortgage fraud conspiracywith Mshihiri, giving the CRI first-hand

knowledge of Mshihiri’s role in the scheme. The information the CRI provided also

was corroborated by other evidence, including loan records, real estate purchase

records, bank records, and state charging documents. Any deficiency in the showing

of the CRI’s reliability wassufficiently compensated for by the strong showing of the

basis of the CRI’s knowledge and by the corroborating evidence. Moreover, despite

Mshihiri’s argument to the contrary, the information contained in the affidavit linked

Mshihiri to specific fraudulent mortgage loan transactions and provided a substantial

basis for the issuing judge to conclude that probable cause existed. 

Mshihiri next argues that the district court should have suppressed the

statements he made to Olson and Shoup because he wasin custody when he made the

statements and he had not been advised of his Miranda rights. “Miranda requiresthat

law enforcement agents provide certain prescribed warnings before conducting an

interrogation of a suspect who is in custody.” United States v. New, 491 F.3d 369,

373 (8th Cir. 2007). To determine whether a person is in custody we consider:

“[F]irst, what were the circumstances surrounding the interrogation; and second,

given those circumstances, would a reasonable person have felt he or she was at

liberty to terminate the interrogation and leave.” J.D.B. v. North Carolina, 131 S. Ct.

2394, 2402 (2011) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)); see

also United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990) (listing six nonexclusive factors for evaluating whether an individual is in custody for purposes of

Miranda). We review the district court’s custody determination de novo and its

factual findings for clear error. United States v. LeBrun, 363 F.3d 715, 719 (8th Cir.

2004) (en banc).

The district court made the following findings with respect to the

circumstances surrounding the interrogation: the agents informed Mshihiri that he

was not under arrest, Mshihiri entered the interview room voluntarily and was seated

closest to the door throughout the questioning, the agents were dressed in casual

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clothing and did not display their weapons, most of the forty-minute interview was

calm and conversational, and Mshihiri was never handcuffed or placed under arrest. 

Because these findings are not clearly erroneous and are well-supported by Olson’s

testimony, we conclude that Mshihiri was not in custody at any point during the

September 16, 2010, interview. 

Mshihiri essentially argues that the district court erred in its credibility findings

when it rejected his testimony that the agents never told him he wasfree to leave, that

they ignored his request for an attorney, and that they threatened his wife and

children. “The district court, however, has a distinct advantage in evaluating the

credibility of witnesses, and its credibility determinations are virtually unreviewable

on appeal.” United States v. Vinton, 631 F.3d 476, 481 (8th Cir. 2011) (internal

quotation marks and citation omitted). The district court reasonably found that

Olson’s testimony was credible and that Mshihiri’s testimony was inconsistent and

lacked credibility. 

Mshihiri also argues that his statements were not voluntary because the agents

threatened his wife and children. “A statement is involuntary when it was extracted

by threats, violence, or express or implied promises sufficient to overbear the

defendant’s will and critically impair his capacity for self-determination.” LeBrun,

363 F.3d at 724 (internal quotation marks and citation omitted). Having already

concluded that the district court reasonably discredited Mshihiri’s testimony that he

was threatened by the agents, Mshihiri’s argument fails. See id. (“We review the

district court’s findings of fact for clear error and its legal conclusion as to whether

a [statement] was voluntary de novo.”).

III. Conspiracy Conviction 

Mshihiri argues that the government failed to prove a single conspiracy

involving the four properties identified in the indictment. “Whether the government’s

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proof established a single conspiracy or multiple conspiraciesis a question of fact for

the jury.” United States v. Morales, 113 F.3d 116, 118 (8th Cir. 1997). Accordingly,

we view the evidence in the light most favorable to the verdict and draw all

reasonable inferences in favor of the verdict. Id. at 118-19. We recount in some

detail the facts related to each property below, keeping in mind our deferential

standard of review. 

A. Factual Background

In 2007, Mshihiri lived with his wife, Yvrose Mshihiri (Yvrose), and their

children at the Broadmoor Residence, an expansive home situated on a large lot in

Independence, Minnesota. According to Mshihiri, they planned to move to Tanzania

to pursue business opportunities there, and so he and Yvrose decided to sell the

Broadmoor Residence and purchase the Penthouse, as a place where they could stay

when they visited the United States.

The April 2007 purchase agreement for the Penthouse stated a purchase price

of $1,090,000 and listed only Yvrose as the buyer. Mshihiri and his broker had

negotiated a deal with the sellers that inflated the purchase price of the Penthouse to

facilitate post-closing kickbacks. The seller testified that he had “agreed to distribute

checks after the closing from the funds of the sale to entities of Alpha [Mshihiri’s]

choosing.” The broker and an associate of Mshihiri provided funds for the down

payment. Mshihiri testified that he and Yvrose did not plan on living in the

Penthouse immediately after they purchased it. 

Mshihiri provided the information and documentation used to complete the

loan application. The application falsely stated that Yvrose earned $27,000 per

month as an owner of VANY. It indicated that no part of the down payment was

borrowed, that Yvrose planned to occupy the Penthouse after closing, and that

Yvrose’s primary residence was a home she rented in Brooklyn Center, Minnesota. 

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The application did not disclose Yvrose’s obligation on the mortgage on the

Broadmoor Residence. The application included a bank statement that had been

altered to remove Mshihiri’s name from the account and to show Yvrose’s address

as being in Brooklyn Center. It also included a false investment account statement. 

Mshihiri ultimately secured two loans, together totaling more than $987,000.

The sale of the Penthouse closed on June 26, 2007. After the seller’s mortgage

on the Penthouse was paid, the broker received $87,200 and the seller received

$284,327.43. From her proceeds, the broker paid $40,750 to VANY. The seller

testified that Mshihiri instructed himto make four paymentsfromhis proceeds, which

he did. The seller paid $20,000 to the broker; $77,000 to the associate who helped

fund the down payment; $40,000 to another associate of Mshihiri; and $69,000 to

KIG. Mshihiri stopped making payments on the mortgage shortly after closing. The

Penthouse went into foreclosure and was sold at a sheriff’s sale in July 2008. 

KIG’s bank account had a negative balance when the proceeds from the

Penthouse transaction were deposited. The day after the $69,000 was deposited, KIG

used part of those funds to make a mortgage payment on the Inglewood Duplex, a

residential property in Minneapolis that John Mlay had purchased using funds from

Mshihiri and other members of KIG. The co-founder of KIG described Mlay as an

associate whose name and credit KIG used to buy properties. KIG, however, made

the mortgage payments on the Inglewood Duplex. 

Okwuchwukwu Jidofor (KeKe) recruited Yartah Kimba to purchase the

3

Inglewood Duplex from Mlay. Kimba was a hair stylist who had her own salon,

which waslocated in a space thatshe leased. She met KeKe at a nightclub, and KeKe

KeKe joined the conspiracy after going to GWP’s office looking for work. 3

Mshihiri told him that he could make thousands of dollars by recruiting straw buyers

to purchase houses and could, in turn, pay the buyers whatever he wished from his

share of the proceeds. 

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convinced her to buy property through him, even though she had limited income and

no significant assets. KeKe obtained Kimba’s personal and financial information and

brought it to Mshihiri. Mshihiri assured KeKe that the deal would proceed, despite

the fact that Kimba did not have sufficient assets to qualify for a loan. On November

13, 2007, Kimba entered into an agreement to purchase the Inglewood Duplex. 

Mshihiri handled the documentation for Kimba’s loan. He gave the documents

to KeKe, who took them to Kimba to sign and then returned them to Mshihiri’s

office. Kimba’s loan application falsely stated that she earned $5,229 per month as

a general manager of a tax preparation service provider, that she had more than

$15,000 in cash, and that no part of the down payment had been borrowed. Mshihiri

instructed KeKe to take the completed application to Yissa Jinadu, a loan officer for

Wells Fargo. A loan of more than $265,000 was secured.

The sale of the Inglewood Duplex to Kimba closed on December 26, 2007. 

After Mlay’s existing mortgage was paid, KIG received $93,250.17 and paid $55,000

to the company that had supplied the funds for Kimba’s down payment. At

Mshihiri’s direction, that company, in turn, paid kickbacks in the amounts of $2,000

to Mlay; $21,971.03 to KeKe; and $3,000 to Jinadu. 

Some mortgage payments were made on the Inglewood Duplex by the cofounder of KIG. Kimba, however, was surprised by the size of the mortgage and by

the uninhabitable state of the Inglewood Duplex. She could not afford to make the

necessary repairs or the mortgage payments, and the Inglewood Duplex went into

foreclosure. 

Mshihiri used $30,000 of KIG’s funds from the Inglewood Duplex sale to

purchase the 33rd Street Property, which he later transferred to his company VANY,

recording a $60,000 mortgage to KIG. Sometime thereafter, KeKe told Mshihiri

about a stolen identity that KeKe had acquired from a friend, and Mshihiri decided

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to use it to purchase the 33rd Street Property from VANY. On July 2, 2008, Mshihiri

and KeKe went to an Associated Bank together, where KeKe opened an account in

the identity-theft victim’s name, R.C. After Mshihiri told KeKe that they would need

someone to pose as R.C., KeKe recruited Tristan Trice to the scheme. A loan in

R.C.’s name was brokered through Pristine. Given that R.C.’s identity had been

stolen, the loan application was entirely fabricated and supported by fraudulent

documentation. 

On July 21, 2008, Trice signed the closing documents for the 33rd Street

Property as R.C., but it was too late in the day for Trice to purchase the cashier’s

checks required for closing. Accordingly, the next day, KeKe and Trice went to an

Associated Bank, where Trice was able to purchase a $6,000 cashier’s check as R.C.,

using cash given to him by KeKe. KeKe and Trice then went to an office building

in Brooklyn Park, Minnesota, where they met Mshihiri, who had cash for a second

cashier’s check. Driving a black Mercedes bearing personalized license plates,

Mshihiri took KeKe and Trice to an Associated Bank in St. Louis Park, Minnesota,

where Mshihiri gave Trice an envelope containing cash and instructed him to

purchase a $5,000 cashier’s check. Mshihiri and KeKe waited in the parking lot

while Trice entered the bank to complete the transaction. Trice presented the cash

and a withdrawalslip to the teller in an attempt to purchase the cashier’s check. Their

suspicions aroused, bank personnel called the police, who arrested Trice. As he was

being escorted out of the bank, Trice saw Mshihiri drive away. Another associate

was able to procure a second cashier’s check in R.C.’s name later that day. The

checks were delivered to the title company, which released funds to VANY on July

23, 2008.

From the $187,493.86 proceeds from the sale of the 33rd Street Property,

$60,000 was paid to Pristine and $126,139.51 was paid to VANY. Pristine then

transferred its funds to KIG, which in turn used part of the funds to facilitate Hassan

Rashid’s straw purchase of the Broadmoor Residence. Mshihiri issued kickbacks to

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the recruiter, broker, and loan officers from the VANY account, and VANY then

transferred $62,500 of its funds to Rashid’s bank account.

Mshihiri convinced Rashid, his cousin, to act as the straw buyer of Mshihiri’s

primary home, the Broadmoor Residence. Mshihiri explained that he was

contemplating moving to Tanzania and had not been able to sell his house. He

suggested that Rashid purchase the house, with Mshihiri making the down payment

and finding rentersto cover the monthly mortgage payments. Rashid agreed to do so,

but he had no role in setting the purchase price of $640,000, which he believed was

arranged by Mshihiri and the loan officer. 

Mshihiri completed the loan application, which, as with the applications related

to the other properties, was replete with misrepresentations and omissions. The

application misrepresented Rashid’s income and employer, stating that he earned

$14,824 per month working for Pristine Finance. The application also indicated that

no part of the down payment was borrowed, that Rashid planned to occupy the

Broadmoor Residence after closing, and that Rashid received $2,500 per month in

rental income, none of which was true. Phony pay stubs and a false investment

account statement were submitted in support of the application. Rashid’s loan

application was referred to Jinadu, the Wells Fargo loan officer who had facilitated

the Inglewood Duplex deal. As recounted above, Mshihiri provided most ofRashid’s

down payment through KIG and VANY. The sale closed on July 31, 2008, following

which Mshihiri and his family continued to live at the Broadmoor Residence, which

eventually went into foreclosure.

B. Discussion

Mshihiri argues that the government failed to prove a single conspiracy. He

describes the roles different individuals played in completing the fraudulent

transactions related to each of the four properties, arguing that there were four

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separate schemes, one for each property. Denying that he was the hub of a single,

hub-and-spoke conspiracy, Mshihiri claims that KeKe wasthe hub ofthe conspiracies

involving the Inglewood Duplex and the 33rd Street Property and that the Penthouse

and the Broadmoor Residence were merely “separate personal transactions of Mr. and

Mrs. Mshihiri.” Appellant’s Br. 38. He reiterates the fact that not all of the

individuals involved in the four transactions worked together and that he was often

traveling outside the country when the transactions related to the Inglewood Duplex

and 33rd Street Property were being completed. 

“A single conspiracy is composed of individuals sharing common purposes or

objectives under one general agreement.” Morales, 113 F.3d at 118-19 (internal

quotation marks and citation omitted). If the evidence has established one overall

agreement to commit an illegal act, the government has proved its case. Id. In

determining whether the evidence has established a single conspiracy, we consider

the totality of the circumstances, viewing the evidence in the light most favorable to

the verdict and drawing all reasonable inferences in favor of the verdict. United

States v. Johnson, 719 F.3d 660, 669 (8th Cir. 2013). “Relevant factors include the

nature of the activities involved, the location where the alleged events of the

conspiracy took place, the identity of the conspirators involved, and the time frame

in which the acts occurred.” Id. (internal quotation marks and citation omitted). A

single conspiracy may exist “even if the participants and their activities change over

time, and even if many participants are unaware of, or uninvolved in, some of the

transactions.” Id.

When so viewed the evidence established a single conspiracy, whose purpose

was to secure lenders’ funds through material misrepresentations, omissions, and

fraudulent documents. The manner and means of securing lenders’ funds were

similar across the transactions related to the four properties. Specifically, Mshihiri

or a co-conspirator would identify a straw buyer and a property in the Twin Cities

metropolitan area. Thereafter, purchase prices were inflated, the straw buyer’s

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income and assets were misrepresented, down payment funds were secured, and postclosing kickbacks were paid, usually at Mshihiri’s direction. The loan applications

bore similar misrepresentations of income and assets, and the documentation

supporting each application was altered, fabricated, or created from whole cloth. 

Mshihiri used GWP, Pristine, KIG, and VANY, and individuals who shared

connections to those entities throughout the June 2006 through April 2009

conspiracy.

The flow ofthe ill-gotten funds used to perpetuate the scheme also supportsthe

jury’s finding of a single conspiracy. Proceeds fromthe Penthouse closing were used

to fund mortgage payments on the Inglewood Duplex before it was sold to strawbuyer Kimba. Some of the proceeds from the Inglewood Duplex closing were then

used to fund Mshihiri’s purchase of the 33rd Street Property before it was sold to the

fictitious straw-buyer, R.C. Thereafter, proceeds from the 33rd Street Property

closing were used to fund the down payment for Rashid’s straw purchase of the

Broadmoor Residence.

Finally, we reject Mshihiri’s contention that KeKe was the hub of separate

conspiraciesinvolving the Inglewood Duplex and the 33rd Street Property. Although

KeKe had recruited Kimba and procured a stolen identity, he brought those straw

buyers to Mshihiri, who then completed or facilitated the completion of their bogus

loan applications, which in turn secured lenders’ funds through material

misrepresentations and omissions. The overwhelming evidence of his involvement

gives the lie to Mshihiri’s argument that he was not responsible for these transactions

because he was traveling abroad. 

IV. Motion To Suppress Trice’s Pretrial and In-Court Identification of Mshihiri

Mshihiri argues that evidence of Trice’s pretrial identification of Mshihiri

should have been suppressed. Before trial, Trice had been shown photographs of

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Mshihiri and had identified him on an investigative flow chart, recognizing him as

one of the “big guys.” It was Mshihiri who introduced the pretrial identification

evidence, however, in an attempt to demonstrate to the jury that Trice knew Mshihiri

only from the photographs he was shown. By introducing this evidence himself,

Mshihiri has waived any argument that the district court should have excluded it. See

United States v. Preciado, 336 F.3d 739, 745 (8th Cir. 2003) (citing United States v.

Mihm, 13 F.3d 1200, 1204 (8th Cir. 1994) (concluding that an unsuccessful tactical

decision waives even plain error review)). 

Mshihiri also argues that the district court erred by denying his motion to

suppress Trice’s in-court identification of Mshihiri. He contends that the pretrial

identification procedures were unnecessarily suggestive and tainted Trice’s in-court

identification, thereby violating Mshihiri’s constitutional right to due process. 

Reviewing this claim de novo, we apply the two-part test that governs the

admissibility ofidentification evidence. United States v. Williams, 340 F.3d 563, 567

(8th Cir. 2003). “First, we determine if the identification procedures were

‘impermissibly suggestive.’ If they were, we examine the totality of the

circumstances to determine whether the suggestive procedures created ‘a very

substantial likelihood of irreparable misidentification.’” Id. (quoting Simmons v.

United States, 390 U.S. 377, 384 (1968)). In determining the likelihood of

misidentification, we consider “the opportunity of the witness to view the criminal

at the time of the crime, the witness’ degree of attention, the accuracy of his prior

description of the criminal, the level of certainty demonstrated at the confrontation,

and the time between the crime and the confrontation.” Id. (quoting Manson v.

Brathwaite, 432 U.S. 98, 114 (1977)). 

Even if we were to assume that the procedure here wassomehowimpermissibly

suggestive, the circumstances do not suggest a substantial likelihood that Trice

misidentified Mshihiri. Trice observed Mshihiri twice: when Trice first

impersonated R.C., and again approximately a week after their first encounter, when

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Mshihiri drove Trice from an office building located in Brooklyn Park to a bank

located in St. Louis Park. Trice apparently paid close attention to Mshihiri, because

he was able to recount their meetings in detail and accurately describe the make,

color, and personalized license plate of Mshihiri’s vehicle. According to Mshihiri,

when Trice wasshown the investigative flow chart more than three years after he had

last seen Mshihiri, he identified Mshihiri as one of the “big guys,” but later seemed

to confuse Oluwatula and Mshihiri. Given the totality ofthe circumstances, however,

we find no substantial likelihood ofirreparable misidentification, and thusthe district

court did not err in allowing Trice to identify Mshihiri at trial.

V. Sentencing

At sentencing, the government introduced a summary chartshowing the losses

for thirteen properties that were involved in the overall scheme to defraud—three of

the properties that were the subject of the trial and ten other properties. For each 4

property, the chart listed the address, borrower, closing date, lender, financial loss

victim, loan amount, unpaid principal balance, sales price, sales proceeds, and

realized loss. To calculate the amount of loss, the government took the postforeclosure sales price orsales proceeds for each property, whichever was higher, and

subtracted it from the unpaid principal balance on the fraudulently obtained

mortgages, which resulted in a total realized loss of $1,971,091.91. A special agent

with the United States Department of Housing and Urban Development (HUD)

testified regarding the ten properties that were not identified in the indictment,

connecting each property and associated transaction to the conspiracy.

The district court determined that Mshihiri’s relevant conduct involved the

thirteen properties listed on the summary chart and found that the amount of loss was

The 33rd Street Property did not have a realized loss when Mshihiri was 4

sentenced and was not included in the loss calculation. 

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$1,971,091.91. The district court applied several enhancements to Mshihiri’s base

offense level: a loss of more than $1 million but not more than $2.5 million; using

sophisticated means; making unauthorized use of a means of identification to obtain

another means of identification; deriving more than $1 million in gross receipts from

one or more financial institutions; acting as an organizer or leader of criminal activity

that involved five or more participants; and obstructing justice. The district court

rejected Mshihiri’s request that the amount of loss be discounted by thirty percent

based on unforeseeable market changes. The district court determined that Mshihiri’s

total offense level was 35, his criminal history category was I, and his advisory

sentencing range was 168 to 210 months’ imprisonment. As set forth earlier,

Mshihiri was sentenced to 150 months’ imprisonment and ordered to pay restitution

in the amount of $1,971,091.91. 

Mshihiri argues that the district court erred in determining his relevant conduct,

the actual loss amount, and that Mshihiri had obstructed justice. Mshihiri first 5

argues that the government failed to prove any jointly undertaken criminal activity. 

He contends that the transactions related to each of the properties described in the

indictment were separate frauds and not part of an overarching conspiracy. He also

argues that the transactions related to the ten other properties should not be

considered relevant conduct. 

Mshihiri has made no meaningful argument regarding the district court’s 5

imposition of offense-level enhancements for use of sophisticated means, use of

identification to obtain another means of identification, and role in the offense. 

Accordingly, he has waived any such argument. See Fed. R. App. P. 28(a)(8)(A)

(stating that an appellant’s brief should contain “appellant’s contentions and the

reasons for them, with citations to the authorities and parts of the record on which the

appellant relies”); United States v. Ali, 799 F.3d 1008, 1026 (8th Cir. 2015)

(foregoing consideration of an argument that was mentioned but not meaningfully

argued). 

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We review the district court’s relevant conduct findings for clear error. United

States v. Whiting, 522 F.3d 845, 850 (8th Cir. 2008). For sentencing purposes,

relevant conduct includes all acts and omissions of the defendant that were “part of

the same course of conduct or common scheme or plan as the offense of conviction”

and “all reasonably foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1) and (2). The district

court did not clearly err in finding that Mshihiri’s relevant conduct included the

properties listed on the summary chart. The properties that were the subject of trial

are beyond challenge. As for the remaining ten properties, the HUD special agent’s

testimony connected those properties to the conspiracy and established that the

lenders with respect to those properties were defrauded during the time period alleged

in the indictment by means of a scheme substantially similar to the one alleged in the

indictment. Mshihiri makes no specific allegations of error as to any of the

properties, but argues that he did not fully control the mortgage fraud, that he spent

several months abroad between 2007 and 2009, and that he began exiting the real

estate business during that time period. Whatever the truth of those assertions, they

do not establish that the district court clearly erred in determining Mshihiri’s relevant

conduct.

Mshihiri contends that the ten properties addressed at sentencing should not

have been included in the loss calculations. He further argues that the district court

should have considered only the loss suffered by the original lender. If the lender

packaged the mortgage and sold it to a different financial institution for a profit, the

argument goes, no lossshould be attributed to Mshihiri. Finally, he contendsthat the

district court erred when it considered hearsay evidence and when it rejected his socalled black swan argument—that is, that the amount of loss should be reduced by

thirty percent to account for the unforeseeable collapse of the real estate market.

The district court did not clearly err in finding an actual loss of $1,971,091.91. 

United States v. Engelmann, 720 F.3d 1005, 1013 (8th Cir. 2013) (standard of

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review). As an initial matter, the district court properly included the losses from the

ten properties addressed at sentencing in its loss calculation. See United States v.

Quevedo, 654 F.3d 819, 823 (8th Cir. 2011) (“A sentencing court must include in its

calculation any losses caused by ‘relevant conduct.’”). We have held that a district

court does not clearly err “in basing its actual loss calculation on the difference

between the unpaid loan balances and the prices obtained for the properties at

sheriff’s sales or short sales.” Engelmann, 720 F.3d at 1013-14 (citing U.S.S.G.

§ 2B1.1 cmt. n.3(E)(ii)). Accordingly, there can be no clear error here, where the

district court engaged in a more conservative calculation by subtracting the higher of

the post-foreclosure sales price or the sales proceeds from the unpaid principal

balance. 

Moreover, the loss here meets the U.S. Sentencing Guidelines Manual’s

definition of “actual loss” because the loss was “the reasonably foreseeable pecuniary

harm that resulted from the offense.” See U.S.S.G. § 2B1.1 cmt. n.3(A)(i) (defining

“actual loss”). The Guidelines define “reasonably foreseeable pecuniary harm” as

“pecuniary harm that the defendant knew or, under the circumstances, reasonably

should have known, was a potential result of the offense,” U.S.S.G. § 2B1.1 cmt.

n.3(A)(iv), and we have recognized that “[i]t was reasonably foreseeable ‘that a

scheme premised on false loan applications and inflated real estate prices would

unravel, and that market conditions could exacerbate the losses.’” Engelmann, 720

F.3d at 1014 (quoting United States v. Spencer, 700 F.3d 317, 323 (8th Cir. 2012)). 

Moreover, it isimmaterial that the loss victims were sometimes other than the original

lender. Regardless of whether the victim was the original lender or a subsequent

holder of the mortgage, the pecuniary harm “resulted from” Mshihiri’s conspiracy

offense. Finally, the district court did not err in considering the hearsay testimony of

the HUD special agent. United States v. Shackelford, 462 F.3d 794, 796 (8th Cir.

2006) (per curiam) (“Hearsay evidence, even double hearsay, can be used at

sentencing proceedings if it bears sufficient indicia of reliability to support its

probable accuracy.” (internal quotation marks and citation omitted)).

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With respect to the enhancement for obstruction of justice, the district court

found that Mshihiri gave false testimony both at the suppression hearing and at trial. 

Because “[c]ommitting perjury at trial is a reason to apply a two-level enhancement

for obstruction of justice” and because there was no clear error in the finding that

Mshihiri had committed perjury, the district court properly applied the enhancement. 

See United States v. Waters,799 F.3d 964, 974 (8th Cir. 2015) (citing U.S.S.G.

§ 3C1.1 cmt. n.4(B)). 

Throughout his sentencing arguments, Mshihiri cites Apprendi v. New Jersey,

530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013). In

Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to the jury, and proved beyond a reasonable doubt.” 530 U.S. at

490. In Alleyne, the Court held that any fact that increases the statutory mandatory

minimum sentence to which a defendant is exposed is an “element” of the crime and

must be submitted to the jury. 133 S. Ct. at 2155. Neither case applies here, because

the district court’s findings did not increase the statutory maximum sentence or the

statutory mandatory minimum sentence. 

 

VI. Conclusion

The judgment is affirmed.

______________________________

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