                                                                              FILED
                           NOT FOR PUBLICATION                                  JAN 13 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 10-30276

             Plaintiff - Appellee,              D.C. No. 2:08-cr-00212-RAJ-2

       v.
                                                MEMORANDUM*
ROBERT ERNEST BRANDT,

             Defendant - Appellant.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Richard A. Jones, District Judge, Presiding

                          Submitted January 10, 2012**
                              Seattle, Washington

Before: GRABER, FISHER and RAWLINSON, Circuit Judges.

      Robert Brandt appeals his conviction for wire fraud based on a fraudulent

scheme to obtain mortgage loans for the purchase of residential properties at

inflated prices. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1.     The false statements to lenders were material. When the facts are

viewed in the light most favorable to the government, the straw buyers misstated

their income, assets, employment and intent to occupy the properties. As president

of Escrow Authority, Brandt also signed and submitted fraudulent HUD-1 forms

that misstated the fees being collected for Escrow Authority’s services. Such

statements, which bear directly on a buyer’s ability to repay the loan and on the

escrow agency’s interest in securing the loan, are material. See United States v.

Gaudin, 515 U.S. 506, 509 (1995) (holding that a false statement is material if it

has “a natural tendency to influence, or [be] capable of influencing, the decision of

the decisionmaking body to which it was addressed”) (internal quotation marks

omitted) (alteration in original); see also United States v. Nash, 115 F.3d 1431,

1437 (9th Cir. 1997). Lender representatives also testified that, had they known of

the various misstatements, they would not have made the loans at issue. We must

assume that the jury credited these witnesses. See United States v. Stewart, 420

F.3d 1007, 1015 (9th Cir. 2005). Thus there is no question that the evidence

sufficiently proved the misstatements were material. See United States v.

Mayberry, 913 F.2d 719, 723 (9th Cir. 1990) (concluding that the unchallenged

testimony of an HUD administrator that the information at issue was “highly




                                          2
significant in reviewing mortgage insurance applications” was sufficient to

establish materiality).

      2.     The district court did not abuse its discretion by instructing the jury on

deliberate ignorance. First, Brandt’s argument that the instruction allowed him to

be convicted on the basis of mere negligence is foreclosed by precedent. See

United States v. Heredia, 483 F.3d 913, 918-20 (9th Cir. 2007) (en banc) (holding

that the deliberate ignorance instruction does not risk lessening the state of mind

that the jury must find to something akin to recklessness or negligence). Second,

there was sufficient evidence, primarily in the form of the HUD-1s Brandt signed

in connection with the various counts, from which a reasonable jury could find that

Brandt was aware of a high probability that Escrow Authority was being used to

perpetrate a fraud and that Brand deliberately avoided learning the truth. See id. at

923; United States v. Jewell, 532 F.2d 697, 698-99 (9th Cir. 1976) (en banc).

      AFFIRMED.




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