10-1331-cr(L)
USA v. Cooper (White)

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 3rd day of November, two thousand eleven.

Present:
           RALPH K. WINTER,
           ROBERT A. KATZMANN,
           RICHARD C. WESLEY,
                            Circuit Judges.

____________________________________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                         - v. -                No. 10-1331-cr (Lead); 10-3893-cr (Con)

LAWRENCE BURKE, AKA Clover Hill,
AKA John Byron, ZACHARY CUTLER,
AKA Josh Carter,

                         Defendants,

RICCARDO WHITE, AKA Frank White,
AKA Mark Allen, GREGORY COOPER,
AKA Thornton Lockheed,

                     Defendants-Appellants.
____________________________________________________________
For Defendant-Appellant (Cooper):                 LAWRENCE GERZOG, New York, N.Y.

For Appellee:                                     KATHRYN MOORE MARTIN, Assistant United
                                                  States Attorney (Michael A. Levy, Assistant
                                                  United States Attorney, on the brief), for Preet
                                                  Bharara, United States Attorney for the
                                                  Southern District of New York, New York,
                                                  N.Y.


       Appeal from the United States District Court for the Southern District of New York
(Karas, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant-Appellant Gregory Cooper* appeals from a judgment of conviction entered on

September 28, 2010, in the United States District Court for the Southern District of New York

(Karas, J.), following a jury trial, for conspiracy to commit mail fraud, in violation of 18 U.S.C.

§ 1349, and mail fraud, in violation of 18 U.S.C. § 1341. The evidence at trial established that

Cooper and his co-defendants engineered two fraudulent schemes—a mortgage broker scheme

(“MBS”) that sold bogus lists of potential customers, and a homeowner scheme (“HS”) that

defrauded homeowners seeking to refinance their mortgages. On appeal, Cooper challenges the

sufficiency of the evidence, argues that the district court abused its discretion in denying his

motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, and asserts that his

sentence was procedurally unreasonable. We assume the parties’ familiarity with the facts and

procedural history of the case.



       *
         This summary order only addresses Cooper’s appeal. The consolidated appeal by
Defendant-Appellant Riccardo White consists only of an Anders motion, which we decided
under separate cover.

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       We review challenges to the sufficiency of the evidence de novo, viewing the evidence in

the light most favorable to the government. United States v. Yannotti, 541 F.3d 112, 120 (2d Cir.

2008). An appellant “bears a heavy burden” in challenging the sufficiency of the evidence. Id.

(internal quotation marks omitted). The standard of review is “exceedingly deferential.” United

States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008). A conviction must be affirmed if “any

rational trier of fact could have found the essential elements beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted).

       The elements of mail fraud include (1) a scheme to defraud; (2) to get money or property;

(3) furthered by the use of the mail. See Fountain v. United States, 357 F.3d 250, 255 (2d Cir.

2004). The government must establish, as part of the scheme, fraudulent intent on the part of the

defendant as well as the materiality of any misrepresentation. See United States v. Autuori, 212

F.3d 105, 115 (2d Cir. 2000). To establish fraudulent intent, the government must demonstrate

“some harm contemplated to the victim of the fraud that goes to the nature of the bargain itself.”

United States v. Kinney, 211 F.3d 13, 18 (2d Cir. 2000). That is, “the proof must demonstrate

that the defendant had a ‘conscious knowing intent to defraud . . . [and] that the defendant

contemplated or intended some harm to the property rights of the victim.’” United States v.

Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (quoting United States v. Leonard, 61 F.3d 1181,

1187) (5th Cir. 1995)).

       Cooper first argues that the evidence was insufficient because no fraudulent statement

was contained in either the lists of potential customers or the homeowner loans. The evidence at

trial established that in both schemes Cooper and his co-conspirators made oral

misrepresentations to their victims about the products being sold, and this evidence was


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sufficient to support the conviction for mail fraud. “Intent may be proven . . . by showing that

defendant made misrepresentations to the victim(s) with knowledge that the statements were

false.” Guadagna, 183 F.3d at 129, 130-31 (finding that oral sales pitches were sufficient to

support wire fraud conviction). Cooper further argues that these misrepresentations were not

material, citing to United States v. Regent Office Supply Co., 421 F.2d 1174 (2d Cir. 1970) and

United States v. Starr, 816 F.2d 94 (2d Cir. 1987), for the proposition that solicitation of goods

by means of false representations that do not go to the quality, adequacy or price of the goods

does not constitute fraud. This argument is meritless. In the MBS, the misrepresentation as to

the source of the leads clearly went to the quality and adequacy of the lists sold to the brokers.

In the HS, the misrepresentation of the actual interest rates of the homeowner loans “affect[ed]

the very nature of the bargain itself.” Starr, 816 F.2d at 98. Finally, Cooper argues that the

evidence was insufficient because the victims had remedies to ameliorate any harm the schemes

may have inflicted. This argument is also meritless, as it suggests that he was less culpable as a

result of his victims’ purported failure to mitigate their harm. “We refuse to accept the notion

that ‘the legality of a defendant’s conduct would depend on his fortuitous choice of a gullible

victim.’” United States v. Thomas, 377 F.3d 232, 243 (2d Cir. 2004) (quoting United States v.

Benson, 548 F.2d 42, 46 (2d Cir. 1977));1 see also United States v. Sun-Diamond Growers of

California, 138 F.3d 961, 971 (D.C. Cir. 1998) (“[W]hen an individual is swindled, the offender

does not escape mail or wire fraud liability just because the victim was unwary, or even

gullible.” (internal quotation marks omitted)).


       1
          Although the fraudulent scheme at issue involved travel, this Court noted that travel
fraud, wire fraud, and mail fraud are analyzed in the same way because the relevant statutes use
the same language. Thomas, 377 F.3d at 242 n.5.

                                                  4
       A Rule 33 motion allows the court to “vacate any judgment and grant a new trial if the

interest of justice so requires.” Fed. R. Crim. P. 33(a). Granting such a motion is at the district

court’s discretion, but such discretion is exercised sparingly. See United States v. Sanchez, 969

F.2d 1409, 1414 (2d Cir. 1992). We review the denial of a Rule 33 motion for abuse of

discretion. See id. The district court concluded that the witness’s credibility had already been

impeached through cross-examination, and thus additional impeachment based on any alleged

perjury regarding his college graduation would have been cumulative, and, furthermore, there

was no reasonable likelihood that the false testimony could have affected the judgment of the

jury. Based on our review of the record, we conclude that the district court did not abuse its

discretion in denying Cooper’s Rule 33 motion.

       We review sentencing determinations for reasonableness. United States v. Crosby, 397

F.3d 103, 114-15 (2d Cir. 2005), abrogated on other grounds by United States v. Fagans, 406

F.3d 138, 142 (2d Cir. 2005). This review is “akin to review for abuse of discretion.” United

States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006). With respect to procedural reasonableness,

       [a] district court commits procedural error where it fails to calculate the Guidelines range
       . . . makes a mistake in its Guidelines calculation, or treats the Guidelines as mandatory.
       It also errs procedurally if it does not consider the § 3553(a) factors, or rests its sentence
       on a clearly erroneous finding of fact.

United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc) (internal citation omitted).

Under a clear error standard, we will only reverse if we are left “with the definite and firm

conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470

U.S. 564, 573 (1985) (internal quotation marks omitted).

       Cooper’s Presentence Report calculated the total offense level under the United States

Sentencing Guidelines as 35, which included a 16-level enhancement because the offense

                                                 5
involved a loss between $1,000,000 and $2,500,000, and a 6-level enhancement because the

offense involved more than 250 victims. Cooper argues on appeal that the enhancements are

procedurally unreasonable because the district court engaged in a “wholesale guessing game,”

when determining the number of victims and the loss amount. Def. Br. 40.

       For economic crimes, a “victim” is “any person who sustained any part of the actual

loss.” U.S.S.G. 2B1.1, cmt. n.1. In calculating loss amount, a district court “need only make a

reasonable estimate.” U.S.S.G. 2B1.1, cmt. 3(c). The district court need only make this

determination based upon a “preponderance of the evidence.” See United States v. Ruggiero,

100 F.3d 284, 290 (2d Cir. 1996).

       The district court’s calculations were not clearly erroneous. In United States v. Sutton,

13 F.3d 595, 599 (2d Cir. 1994), this Court indicated that a district court may reasonably rely

upon the trial evidence concerning the nature and scope of a defendant’s fraudulent scheme to

conclude that particular transactions not specifically addressed at trial were part of the same

fraudulent scheme proven at trial and thus should be included in the loss calculation. With

respect to the victims and total loss associated with the MBS, Cooper conceded that the 428

checks that the government had identified in its spreadsheets represented payments by mortgage

brokers for leads and that he had been paid $890,000 for the leads. The district court concluded

based on the trial testimony that there were no legitimate lead lists sold to any mortgage broker.

Similarly, Cooper did not dispute the Government’s identification of 54 homeowners who had

spent approximately $1.275 million in transaction costs as a result of having executed

refinancings brokered by Cooper’s company, and the district court reasonably concluded based

on trial testimony that every individual who refinanced his or her home through Cooper’s



                                                 6
company was defrauded. Thus, the district court’s determination that a preponderance of the

evidence supported a finding that there were at least 250 victims and that the loss amount was

between one million and 2.5 million dollars was not clearly erroneous, and we will not disturb

Cooper’s sentence on appeal.

       We have considered Cooper’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.


                                                FOR THE COURT:
                                                CATHERINE O’HAGAN WOLFE, CLERK




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