                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ____________

                            Nos. 11-1890 and 11-2584
                                  ____________

                        UNITED STATES OF AMERICA

                                        v.

                       FREDERICK UGWU; AMER MIR

                                     Frederick Ugwu
                                         Appellant in No. 11-1890

                                   Amer Mir
                                        Appellant in No. 11-2584
                                  ___________

                  On Appeal from the United States District Court
                           for the District of New Jersey
           (D.C. Criminal Nos. 2-08-cr-00561-004 & 2-08-cr-00561-003 )
                     District Judge: Honorable Jose L. Linares
                                   ___________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                                 March 7, 2013

          Before: RENDELL, AMBRO, and VANASKIE, Circuit Judges

                            (Filed: September 4, 2013)
                                   ___________

                                   OPINION
                                  ___________

VANASKIE, Circuit Judge.
           Frederick Ugwu and Amer Mir appeal their convictions following a jury trial on

conspiracy, wire fraud, and money laundering charges arising out of a scheme to defraud

mortgage lenders. Although only Ugwu argued at trial that the evidence did not warrant

a willful blindness instruction, both Defendants now assert that the District Court erred in

giving such an instruction. Both Defendants also contend that the District Court erred in

refusing to give a curative instruction after the Government commented on Defendants’

failure to present the testimony of the alleged ring-leader of the conspiracy. Finally, Mir

challenges the District Court’s decision to add two points to his offense level for abuse of

a position of trust, as well as its calculation of the financial loss attributable to him for

purposes of sentencing and restitution. Finding no error in any of the challenged rulings,

we will affirm the District Court’s judgment.

                                                 I.

           We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

           Ugwu and Mir were charged in a ten-count Superseding Indictment with

conspiracy to commit wire fraud, wire fraud, conspiracy to commit money laundering,

and money laundering. Also charged were, among others, Michael Eliasof, a real estate

agent, and Jerry Carti, a loan officer and part owner of U.S. Mortgage.1 The charges

arose out of a scheme to sell two and three-family homes in the Paterson, New Jersey

area at grossly inflated prices to unqualified buyers.



1
    Both Eliasof and Carti pled guilty.

                                                2
       Specifically, Ugwu, an experienced real estate investor, purchased properties in

poor condition for an average purchase price of $85,000. He made minimal, if any,

repairs to the homes to make them “appear habitable to appraisers and prospective

tenants.” (App. 36). Eliasof introduced potential buyers to Mir, a loan officer at United

Home Mortgage. The prospective purchasers were told that Eliasof would manage the

properties and that the mortgage payments would be covered by rental payments. Mir

and Carti falsified loan applications so that unqualified buyers were approved. Once the

unqualified buyers were approved, closings would take place at the law office of William

Colacino, an attorney and municipal judge. At closing, the conspirators prepared false

RESPA settlement statements that misrepresented moneys due from the buyers and

payable to the sellers. The buyers signed these documents without reviewing them and

left without keys to the properties.

       Ugwu appeared at the closings with his attorney, generally after the buyers had

left. Ugwu’s attorney typically reviewed the documents containing false information

regarding buyer payments. Ugwu falsely assured his attorney that he had already

received fictitious deposits reflected on the closing documents prior to signing. The

conspirators split the proceeds of the fraudulently obtained mortgage loans.

       Throughout the life of the scheme, Ugwu received almost $4 million for his role,

and was responsible for losses totaling more than $1.6 million. Mir received at least

$210,000, and was responsible for more than $2.3 million in losses.

                                            II.



                                            3
        The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate

jurisdiction under 28 U.S.C. § 1291.

                                              A.

        Ugwu contends that the District Court erred in instructing the jury on willful

blindness, not because the actual instruction was incorrectly stated, but because such an

instruction was not warranted in light of the evidence from which the jury could have

inferred his actual knowledge of the fraud. He argues that the jury should have been

instructed only on the government’s burden to prove his actual knowledge of the

fraudulent scheme.

        We have specifically rejected the contention that “so long as there is sufficient

evidence of actual knowledge, a willful blindness charge is at all events inappropriate.”

United States v. Wert-Ruiz, 228 F.3d 250, 252 (3d Cir. 2000). As we explained in Wertz-

Ruiz:

               Assuming there to be sufficient evidence as to both theories,
               it is not inconsistent for a court to give a charge on both
               willful blindness and actual knowledge. This is so because, if
               the jury does not find the existence of actual knowledge, it
               might still find that the facts support a finding of willful
               blindness.

Id. (citing United States v. Stewart, 185 F.3d 112, 126 (3d Cir. 1999)). Therefore,

contrary to Ugwu’s contention, the District Court did not err by instructing the jury on

both knowledge and willful blindness if there was sufficient evidence to support both

theories.




                                              4
         Ugwu contends that there was insufficient evidence to support a willful blindness

instruction. We review a challenge to the District Court’s determination that the evidence

supports the giving of a willful blindness instruction for abuse of discretion. United

States v. Stadtmauer, 620 F.3d 238, 252 (3d Cir. 2010). In evaluating the sufficiency of

the evidence to sustain the charge, we “view the evidence and the inferences drawn

therefrom in the light most favorable to the [G]overnment.” Wertz-Ruiz, 228 F.3d at 255.

         There was sufficient factual evidence presented at trial to support the District

Court’s decision to give a willful blindness instruction. Ugwu, an intelligent and

experienced businessman, had participated in approximately 300 closings. Ugwu was

represented by an attorney, and signed letters stating that he had reviewed the HUD-1

documents. When Eliasof was involved, instead of receiving the total deposit amount

listed on the HUD-1, Ugwu received a larger sum and turned large portions of the

settlement amount over to Eliasof. Ugwu also signed letters documenting large

payments to Eliasof for home repairs, while it was Ugwu himself repairing the properties.

Presented with these facts, a reasonable jury could have found that Ugwu, who did not

admit knowledge of the fraudulent nature of the transactions, was aware that the

transactions with Eliasof were likely fraudulent but deliberately avoided learning the

truth. See id. at 255-58 (evidence showed that defendant did not ask questions as to

source of the funds she received). Therefore, the District Court did not err in instructing

the jury on willful blindness.2


2
  At trial, Mir conceded that the evidence of willful blindness was sufficient to support the jury charge and did not
interpose any objection. Therefore, Mir’s challenge to the willful blindness instruction was waived and precludes

                                                           5
         Even if the District Court had abused its discretion in instructing the jury on

willful blindness, the error was harmless. Ugwu admitted that “there was evidence from

which a properly charged jury might have concluded that he had actual knowledge of

wrongdoing,” (Ugwu’s Br. 18), so any error did not prejudice him. See Stadtmauer, 620

F.3d at 260 n.26 (any error was harmless, as the willful blindness charge contained the

correct legal standard and there was ample evidence of defendant’s actual knowledge).

                                                         B.

         During summation, Defendants asked the jury to draw an adverse inference

against the Government for failing to call Eliasof, the “mastermind of the fraud.”

(Ugwu’s Br. 31). In the rebuttal summation, the Government responded to the

Defendants’ remarks. The Government pointed out to the jury that the defense had the

opportunity to call Eliasof, but chose not to. The Government then asserted, “[i]f

[Eliasof] would have exonerated their clients, they could have called him, but they didn’t,

because he wouldn’t, and what they’re trying. . . .” (App. 902; emphasis added). At that

point, defense counsel objected, asserting that the Government was “testif[ying] about

what Mr. Eliasof would have said.” (Id.) In response, the District Court stated that “I

think it is fair comment for [the Government] to talk about the fact that [Defendants]

could have called Mr. Eliasof, but not what Mr. Eliasof would have said, so to that extent,

I sustain [the objection]” (Id.) The following day, Defendants requested that the Court

give an additional curative instruction, reminding the jury that the comment was



appellate review. See United States v. Wasserson, 418 F.3d 225, 240 (3d Cir. 2005) (failure to object to jury
instruction at trial waives any right to challenge the instruction on appeal).

                                                         6
improper and they were to disregard it. The District Court declined to give such a

curative instruction, finding it unnecessary.

       We review the refusal to give a particular jury instruction for abuse of discretion.

United States v. Jimenez, 513 F.3d 62, 74 (3d Cir. 2008) (citing United States v. Leahy,

445 F.3d 634, 642 (3d Cir. 2006)). Defendants challenge the District Court’s refusal to

give a curative instruction, arguing that the Government’s statement inappropriately

shifted the burden of proof to them.

       Defendants had equal access to the witness, and they requested the jury to draw an

inference adverse to the Government for its failure to call the witness. The prosecutor in

such circumstances is permitted to reply to such an argument. United States v.

Sblendorio, 830 F.2d 1382, 1392 (7th Cir. 1987). Asking or permitting the jury to draw

the conclusion that, had an available but uncalled witness been called by the defense, his

testimony would have been harmful, is permissible and does not shift the burden of proof

to the defendants. United States v. Caccia, 122 F.3d 136, 140 (2d Cir. 1997); Sblendorio,

830 F.2d at 1394 (“The prosecutor asked for an inference, which does not alter the

burden of proof.”).

       As for the Government’s inappropriate suggestion that Eliasof would not have

exonerated Defendants had he testified, the Supreme Court has instructed appellate courts

to consider “the scope of objectionable comments” in the context of “the entire

proceeding, the ameliorative effect of any curative instructions given, and the strength of

the evidence support the defendant’s conviction.” United States v. Young, 470 U.S. 1, 11

(1985) (“Inappropriate prosecutorial comments, standing alone, would not justify a

                                                7
reviewing court to reverse a criminal conviction obtained in an otherwise fair

proceeding.”). Here, Defendants objected to a single comment made in the rebuttal

summation, and their objection was sustained. The District Court had instructed the jury

that arguments by counsel were not evidence, the Government bore the burden of proof,

and Defendants were “not required to present any evidence or produce any witnesses.”

(App. 849). Under these circumstances, the District Court did not abuse its discretion in

denying the Defendants’ request for a curative instruction.

                                              C.

       In addition to the arguments presented by Ugwu, Mir independently challenges the

District Court’s determination that a two-point offense level enhancement for abuse of a

position of trust was warranted. Mir urges that the District Court should have conducted

a case-specific inquiry into his position because the special trust required to apply the

enhancement is not inherent in the relationship between a mortgage broker and a lender.

       Mir raises this contention for the first time on appeal. When an appellant raises an

issue for the first time on appeal, this Court will review the District Court’s decision for

plain error. To satisfy the plain error standard, the appellant must establish that “(1) there

is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’;

(3) the error ‘affected the appellant's substantial rights, which in the ordinary case means’

it ‘affected the outcome of the district court proceedings’; and (4) ‘the error seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.’” United

States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (quoting Puckett v. United States, 556

U.S. 129, 135 (2009)).

                                               8
       To determine if the “abuse of trust” enhancement is applicable, the District Court

will consider whether the defendant has abused a “position of public or private trust, or

used a special skill, in a manner that significantly facilitated the commission or

concealment of the offense.” U.S.S.G. § 3B1.3. If the District Court finds such abuse, the

sentencing guidelines “require the sentencing court to increase the offense level by two.”

United States v. McMillen, 917 F.2d 773, 775 (3d Cir. 1990).

       The District Court must first determine whether a defendant occupied a position of

trust. Three factors govern the District Court’s determination of this threshold issue: “(1)

whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the

degree of authority which the position vests in the defendant vis-à-vis the object of the

wrongful act; and (3) whether there has been reliance on the integrity of the person

occupying the position.” United States v. Thomas, 315 F.3d 190, 204 (3d Cir. 2002)

(citing United States v. Iannone, 184 F.3d 214, 223 (3d Cir. 1999)).

       Mir was employed as a licensed mortgage loan officer by United Home Mortgage.

In that capacity, he acted as a “middleman” between buyers and lenders in return for a

commission, predominantly completing loan applications for two specific lenders.

Although we have not decided in a precedential opinion whether or not mortgage brokers

necessarily occupy a position of trust with respect to their client lenders, the Courts of

Appeals for the Fifth and Eighth Circuits have held that mortgage brokers plainly hold

positions of trust with respect to their client lenders, because those lenders depend on

them to provide accurate information about prospective borrowers. United States v.

Septon, 557 F.3d 934, 937-38 (8th Cir. 2009); United States v. Wright, 496 F.3d 371, 377

                                              9
(5th Cir. 2007)). In United States v. Fuchs, 635 F.3d 929 (7th Cir. 2011), by way of

contrast, the Seventh Circuit, while refusing “to say that a mortgage broker can never

occupy a position of trust with respect to his lenders,” id. at 937, found that the evidence

did not establish “a special relationship of trust outside of the ordinary arms-length,

commercial relationship between [the broker] and the lenders.” Id.

       In this case, the Presentence Report accurately stated that Mir repeatedly falsified

information on loan applications to make it appear that borrowers qualified for financing

when in fact they did not. Unlike in Fuchs, the evidence in this case was not limited to

generalities concerning the structure of the mortgage financing industry. Instead, there

was evidence that Mir, as a licensed mortgage loan officer, used phony verifications of

employment, earnings and credit history to induce lenders who reposed trust in him to

extend more than $2 million in credit over a period of time exceeding three years. It is

evident that Mir’s position made the fraud more difficult to detect, considerable authority

to make the transactions was accorded Mir, and there was substantial reliance upon his

integrity. Under the circumstances, the District Court did not plainly err in finding that

Mir both occupied a position of trust vis a vis the lenders, and abused that trust to

facilitate and conceal the crime.

                                             D.

       Finally, Mir contends that the District Court erred in calculating the amount of loss

for sentencing and restitution purposes. Mir contends that the District Court should have

accounted for the recent economic downturn and collapse of the real estate market in

calculating the loss. Mir, however, waived this argument when he withdrew his

                                             10
objection to the presentence report’s loss estimate, the corresponding sixteen-level

increase under U.S.S.G. § 2B1.1(b)(1)(I), and the amount of restitution to be paid.

Because Mir expressly withdrew his objections to the loss calculation, he cannot now

challenge the resulting sentencing enhancement or restitution order. See United States v.

Streich, 560 F.3d 926, 929 n.1 (9th Cir. 2009) (where, as here, a defendant expressly

withdraws an objection to a determination made in a presentence report, “he has done

more than forfeit his objection; he has waived it completely.”).

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                            11
