                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-3298
UNITED STATES     OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

SHERMAN F. JAFFE,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 02 CR 576—Matthew F. Kennelly, Judge.
                          ____________
 ARGUED SEPTEMBER 9, 2004—DECIDED NOVEMBER 1, 2004
                   ____________




 Before EASTERBROOK, EVANS, and SYKES, Circuit Judges.
  EVANS, Circuit Judge. With personal and financial prob-
lems mounting, attorney Sherman Jaffe admittedly showed
poor judgment when he financed the purchase of a Chicago
property with a fraudulently obtained mortgage loan of
more than $60,000 for a property worth just $25,000. The
key question in this case is whether Jaffe, who specialized
in real estate law for some 30 years and had a real estate
broker’s license, merely showed bad judgment by blindly
taking the advice of a client, Theresa Holt, or whether his
mistake was knowingly participating in Holt’s scheme to
defraud a mortgage lender. Because we find sufficient evi-
2                                                 No. 03-3298

dence to support the jury’s conclusion that Jaffe knew what
he was getting into, we affirm his conviction.
  In 1996, Holt, acting as president of Share Development,
agreed to buy approximately 200 properties for $25,000
each, though the actual value of the properties varied. Holt
then obtained inflated appraisals for the properties and re-
sold nearly 100 of them at inflated prices. Jaffe bought one
of those properties in 1997: Holt purchased it for $25,791.50
and Jaffe bought it less than 2 months later for $77,000.
  The government claims that Holt enticed buyers by sell-
ing properties requiring no down payments and providing
buyers with seller carry-back loans that they did not have
to repay, which had the effect, of course, of reducing the sales
price. Holt also promised payments of $3,000 to $4,000 per
property to her buyers. Mortgage lenders were not told that
no money down was required, but they were led to believe
that the seller carry-back loans were on the up-and-up.
  Jaffe represented Holt in various real estate deals over a
10-year period before Holt offered to sell Jaffe a property at
5641 South Union in Chicago. Jaffe, who was living in the
basement of his mother’s house, admits that he was
suffering from financial and personal troubles at the time.
  After learning about the property from Holt, Jaffe went to
see it but was unable to look inside because the tenants at
the time had barred the windows and would not answer the
door. Jaffe did get a peak at the basement and conceded at
trial that “[i]t wasn’t too good.” Still, Jaffe agreed to
purchase the property for $77,000. Holt was to pay the
closing costs and secure a mortgage for Jaffe.
  As most borrowers do, Jaffe completed a Uniform Resi-
dential Loan Application (URLA) containing information
about his income and assets, which was submitted to National
Lending Center, Inc. for use in determining whether Jaffe
qualified for a mortgage. The government claims the URLA,
which Jaffe signed, included fraudulent misrepresentations
No. 03-3298                                                  3

concerning his assets, the money used as a down payment,
and whether Jaffe intended to occupy the property as his
primary residence. Jaffe also signed a HUD-1 form contain-
ing false information about cash Jaffe used to close the sale.
  Because the tenants did not immediately vacate the South
Union property, Jaffe did not get inside until almost 3 months
after the closing. When he finally went in, he discovered that
there was no heater or toilet, the floors and walls were dam-
aged, and there were problems with the plumbing and elec-
trical wiring. Jaffe claims that it was only at this point that
he realized the property was not worth the $77,000 purchase
price.
  Jaffe was indicted in 2002 on one count of wire fraud. A
superseding indictment returned 2 weeks later re-alleged
count one but added 78 counts charging additional buyers
and Holt for their roles in various fraudulent transactions.
Holt, the mastermind of the scheme, is apparently a fugi-
tive.
  After a 6-day trial for Jaffe and another defendant,
Leonard Moore, the jury found Jaffe guilty of wire fraud. He
was sentenced to 9 months in prison. Although he has
completed his sentence, Jaffe appeals in an attempt to clear
his name, claiming he was prejudiced at the trial by a
variance between his indictment for participation in an
individual scheme and the evidence of Holt’s many fraudu-
lent transactions. He also argues that the evidence was not
sufficient to support his conviction and that the district
court erred in giving an “ostrich” instruction. He also chal-
lenges certain comments made by the prosecution during
the trial.
  On the variance issue, Jaffe argues that the jury could
have been swayed by testimony of multiple schemes to de-
fraud mortgage lenders, even though he was only charged
in connection with one scheme. Accordingly, he claims, the
district court should have separated his trial from Moore’s
4                                                  No. 03-3298

or should have given a jury instruction warning against
convicting him based on evidence of the similar schemes.
Jaffe admits that we can reverse his conviction on the basis
of this argument only if we find plain error.
  To support his claim, Jaffe points to Kotteakos v. United
States, 328 U.S. 750 (1946), in which the Supreme Court
reversed a conviction for conspiracy to use fraudulent state-
ments to obtain loans. Although some of the facts of the two
cases are similar, the crucial difference is that the trial court
there instructed the jury to convict if it found the defendant
committed a crime other than the one contemplated in the
indictment. Here, however, the jury convicted Jaffe of the
very charge leveled in the indictment: that he “participated
in a scheme to defraud and to obtain money and property . . .
from a mortgage lender, National Lending Center, Inc., by
means of materially false and fraudulent pretenses, repre-
sentations, promises and material omissions . . . .” Jaffe was
free to argue at trial that the government produced evidence
only of Holt’s larger scheme, not of Jaffe’s involvement in it.
If the jury had agreed, Jaffe would have been acquitted.
Since it did not, Jaffe’s claim of variance is simply a claim
that the evidence was not sufficient to support his convic-
tion.
   “We will overturn a conviction based on insufficient evi-
dence only if the record is devoid of evidence from which a
reasonable jury could find guilt beyond a reasonable doubt.”
United States v. Curtis, 324 F.3d 501, 505 (7th Cir. 2003).
As a result, Jaffe “faces a steep uphill battle,” see United
States v. Graham, 315 F.3d 777, 781 (7th Cir. 2003), one, as
it turns out, he cannot win.
  To prove Jaffe guilty of wire fraud, the government had to
show that he knowingly participated in a scheme to defraud
and that a wire was used in furtherance of the scheme.
United States v. Tadros, 310 F.3d 999, 1006 (7th Cir. 2002).
At trial, the government presented overwhelming evidence
No. 03-3298                                                  5

of Holt’s scheme to trick mortgage lenders into financing
sales of properties, including the South Union property, at
greatly inflated prices. The evidence also established that
proof of Jaffe’s cash necessary to close (a copy of an $8,489
cashier’s check) was faxed from Chicago to National Lending
in Florida, thus satisfying the use of a wire element. So the
case turned on whether the evidence was sufficient to prove
that Jaffe was a willing participant in the scheme. But Jaffe
claims that he could not have intended to defraud the
lender because he did not know anything about Holt’s
scheme at the time he agreed to the sale. Rather than a
participant, he says, he was actually a victim of Holt’s
scheme because he had to take out a $64,000 mortgage for
a property worth just $25,000.
   Despite Jaffe’s cries of ignorance, the jury had plenty
of reasons to believe that he knew of Holt’s scheme and
willingly participated in it. Evidence suggested that Jaffe
and other buyers did not have to put any money down and
received seller carry-back loans that did not have to be re-
paid. More significantly, Jaffe, as we noted, was a real estate
attorney with more than 30 years experience. The jury rea-
sonably could have concluded that, with his background,
Jaffe would have insisted on seeing the Union Street property
if the deal was legitimate, particularly after discovering
that the basement “wasn’t too good.” In addition, Jaffe ad-
mitted that he thought the transaction might be fraudulent,
but he could not remember whether he came to that reali-
zation before the deal closed. Put together, the evidence
supported the jury’s determination that Jaffe realized the
transaction was fraudulent before the closing. See United
States v. Dumes, 313 F.3d 372, 382 (7th Cir. 2002) (noting
that the government can rely on circumstantial evidence to
prove intent to commit a crime).
  Jaffe also argues that the evidence was insufficient to
support the jury’s conclusion that he made false representa-
6                                                No. 03-3298

tions and that he intended to use wires in furtherance of a
scheme. At trial, the government argued that Jaffe falsely
represented that he had $100,000 in personal property and
that he intended to occupy the Union Street property as his
primary residence. Jaffe claims that his interest in his
mother’s house and a condominium were personal property,
but evidence introduced at trial showed that Jaffe had simul-
taneously listed and treated his interests in the properties
as real estate. More significantly, the fact that Jaffe bought
the property without ever looking inside casts doubt on his
claim that he planned to make it his primary residence.
With respect to the use of a wire, Jaffe could have foreseen
that the fax would be sent to National Lending. See Ameri-
can Auto. Accessories, Inc. v. Fishman, 175 F.3d 534, 542
(7th Cir. 1999) (holding that a defendant need only reason-
ably foresee the use of a wire).
   The remainder of Jaffe’s claims can be disposed of quickly.
Jaffe contends that the district court erred in giving an
“ostrich” instruction which allowed the jury to convict him
if it found that he “had a strong suspicion that things were
not what they seemed or that [he] had withheld some im-
portant facts, yet shut [his] eyes for fear of what [he] would
learn . . . .”
  An ostrich instruction is appropriate when a defendant
“claims a lack of guilty knowledge and there are facts and
evidence that support an inference of deliberate ignorance.”
United States v. Craig, 178 F.3d 891, 896 (7th Cir. 1999). At
trial, FBI Special Agent Bruce Burr testified that Jaffe said
he knew the transaction was fraudulent at a certain point
and that he (Jaffe) said he “agreed that he had ‘stuck his
head in the sand.’ ” Apart from a trial involving an actual
ostrich, it’s hard to imagine a case where an ostrich instruc-
tion is more appropriate than one, as here, where the
defendant acknowledges “sticking his head in the sand.”
  Jaffe also argues that we should overturn his conviction
because he was prejudiced by what he claims were inappro-
No. 03-3298                                                     7

priate questions and comments made by the government
during trial. During his cross-examination of Jaffe, the
prosecutor asked about his request to the FBI that he be
viewed as an unindicted coconspirator. Then, during closing
arguments, the prosecution told the jury: “Mr. Jaffe would
come to Court, take an oath, use his dead mother to lie to
you in this case. Do you think for a minute he would not
hesitate to lie at [his] real estate closing . . . ?” Jaffe claims
the comments improperly influenced the jury. But the
district court did not abuse its discretion in determining that
the coconspirator question was not unfairly prejudicial, and
a prosecutor can comment on the credibility of a witness
during his closing argument. See United States v. Morgan,
113 F.3d 85, 89 (7th Cir. 1997). In addition, we cannot find
any evidence that the prosecutors’ statements had any
effect on the jury. In fact, the district court warned the jury
that, “[t]he lawyers’ statements to you are not evidence,”
and, as we have already said, the evidence was more than
sufficient to support the jury’s conclusion. The judgment of
the district court is AFFIRMED.


A true Copy:
       Teste:

                          ________________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                     USCA-02-C-0072—11-1-04
