Professional Documents
Culture Documents
No. 09-4704
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:08-cr-00401-AJT-1)
Argued:
Decided:
PER CURIAM:
Richard Adolphus Forde was convicted of bankruptcy fraud,
see 18 U.S.C.A. 157 (West Supp. 2010); conspiracy to commit
bankruptcy fraud, see 18 U.S.C.A. 371 (West 2000); and bank
fraud,
raising
see
18
various
U.S.C.A.
challenges
1344
to
(West
his
2000).
Forde
convictions.
appeals,
Finding
no
I.
Viewed in the light most favorable to the government, the
evidence presented at trial established the following.
In the
When
When
Allobaidy told Forde that he could not afford the house (which
Forde said was worth more than $2 million), Forde responded,
Dont worry about it.
with
that.
J.A.
525.
Forde,
2
Allobaidy,
and
Freelander
any
mortgage
payments,
and
that
he
should
receive
contract,
bankruptcy
$5,495,000,
and
which
was
attorney,
required
from
drafted
by
Leslie
listed
the
sales
price
as
down
payment
of
Allobaidy
Lickstein,
J.A. 1326.
the real purpose of the slush fund was to provide funds with
which the first-mortgage payments would be made.
testified
that,
despite
the
terms
of
the
Allobaidy also
contract,
everyone
and
obtained
approval
for
the
sale
of
Fordes
house.
bankruptcy
perspective
because
the
down-payment
and
the
Brothers
worked
to
Bank.
obtain
the
Allobaidy
first
mortgage
testified
that
through
he
and
and
false
information
to
make
Allobaidy
appear
Before submitting
of
$5,995,000;
down
payment
of
$550,000;
first
though
no
down
payment
was
in
fact
made.
The
HUD-1
The
governments
evidence,
however,
established
that
there had never been a loan from Archibald to Forde and that the
Archibald lien had actually been filed against the property by
Lickstein at Fordes direction.
paid
out
some
of
the
funds
in
accordance
with
Fordes
directions and used some of the funds for his own benefit.
The
account.
At
Fordes
direction,
Lickstein
later
from the slush fund for a period of time, but the slush fund
eventually ran out and the mortgage went into default.
5
began
looking
into
the
sale
of
The Chapter 7
Fordes
house
and
met
to
discuss
how
the
depositions
should
be
handled.
Freelander asked Allobaidy to lie and say that he had made the
down payment.
later
for
brought
Fordes
convincing
Barton
online
Gold
to
Gold,
business
sign
who
had
solicited
Tutornet.com,
back-dated,
into
false
the
documents
showing that the $539,000 Archibald loan had actually been made
by Gold and only guaranteed by Archibald.
At the deposition
bankruptcy
trustees
investigation
into
the
sale
of
Freelander
fraud.
Forde
proceeded
to
trial,
and
Freelander,
The jury
II.
Forde first contends that the evidence was insufficient to
support the conviction for bank fraud.
A defendant challenging
jurys
substantial
verdict
must
evidence
in
be
the
upheld
record
on
to
appeal
support
if
there
it.
is
United
States v. Young, 609 F.3d 348, 355 (4th Cir. 2010) (citation and
internal quotation marks omitted).
determination
of
guilty
beyond
reasonable
doubt.
1344
imposes
executes,
in
order
or
to
criminal
attempts
defraud
penalties
to
on
execute,
financial
anyone
who
scheme
or
institution,
18
credits,
assets,
securities,
or
other
property
owned
by,
or
of
false
or
fraudulent
was
Freelander
defraud Lehman.
who
pretenses,
representations,
or
concocted
and
executed
the
scheme
to
dealt with the bank, knew what they required and made decisions
of
how
to
conform
Appellant at 15.
with
the
banks
requirements.
Brief
of
that Freelander told him about the problems that the slush fund
addendum could cause if the bank knew about it, Forde insists
that it was Freelander, not Mr. Forde[,] who either made the
decisions that something should be handled a certain way or that
documents should not be provided to the bank or information not
revealed.
Id.
Preliminarily,
we
note
that
while
Forde
may
not
have
representations
in
documents
that
he
knew
would
be
would
never
be
made;
and
Forde
signed
the
HUD-1
statement,
government
need
not
offer
evidence
of
2000); see United States v. Celesia, 945 F.2d 756, 758 (4th Cir.
1991) ([O]ne may commit a bank fraud under Section 1344(1) by
defrauding a financial institution, without making the false or
fraudulent promises required by Section 1344(2).).
What is
governments
evidence
was
certainly
sufficient
to
decision
Lehman
to
employee
make
the
testified
loan.
See
were
id.
material
at
901
to
Lehmans
([A]ctive
or
to
defraud.
(internal
quotation
marks
omitted)).
The
came
up
with
the
to
defraud
Lehman,
Allobaidys testimony alone would have been enough for the jury
to
conclude
that
Forde
was
responsible
for
the
scheme.
At Fordes direction,
his
creditors.
The
slush
fund
proceeds
were
similarly
Because
received
the
benefit
of
these
misappropriated
mortgage
funds, the jury reasonably could have concluded that Forde and
Freelander both conceived and executed the scheme to defraud
Lehman.
III.
Materiality is an element of bank fraud.
See Neder v.
to
Lehman
or
the
information
concealed
from
Lehman,
J.A. 1225-26.
because
it
did
not
include
language
from
the
to
(internal
which
it
was
quotation
addressed.
marks
and
Neder,
alteration
527
U.S.
omitted).
at
16
Forde
the
element
of
materiality,
and
that
he
was
therefore
Brief of Appellant at
be
capable
important
of
when
influencing
making
a
decision
decision.
See
would
likewise
Preston
v.
be
United
States, 312 F.3d 959, 961 & n.3 (8th Cir. 2002) (per curiam)
(concluding
that
instructions
defining
material
fact
as
(internal
instructions
as
quotation
given
marks
fairly
omitted)).
state[d]
the
Because
controlling
the
law,
United States v. McQueen, 445 F.3d 757, 759 (4th Cir. 2006)
(internal quotation marks and alterations omitted), there was no
error,
plain
materiality.
or
otherwise,
in
the
courts
instructions
on
12
IV.
Forde next argues that the district court erred when it
stated, at the end of the instructions to the jury, that the
jurys sole function is to seek the truth from the evidence
received during the trial.
J.A. 1233.
seek-the-truth
statement
negated
reasonable-doubt
instructions
simply
because
they
by
believed
otherwise
permitting
him
to
be
jurors
guilty,
to
proper
convict
even
if
the
jurors also thought that the government had not actually proved
Fordes guilt beyond a reasonable doubt.
Because
jury
charges
the
seek-the-truth
that
Forde
language
himself
sought,
was
see
included
J.A.
in
72,
the
Forde
arguably has waived the right to even seek review of the issue.
See United States v. Quinn, 359 F.3d 666, 674-75 (4th Cir. 2004)
([T]he record shows . . . that the district courts instruction
on this issue was precisely the instruction that they requested.
. . . [A]ny error committed by the district court in giving this
instruction was invited error and is not subject to review.).
In any event, the district court repeatedly informed the jury
that Forde was presumed innocent, and the court mentioned the
requirement that the government must prove Fordes guilt beyond
a
reasonable
instructions.
doubt
more
Under
these
than
twenty
circumstances,
times
we
during
cannot
its
conclude
reasonable-doubt
error.
instructions
or
otherwise
amounted
to
V.
As previously mentioned, the Chapter 7 bankruptcy trustee
investigated
the
sale
of
Fordes
house
and
brought
civil
obligating
represented
criminal
the
trial
him
to
bankruptcy
and
briefly
pay
$800,000.
trustee
The
testified
mentioned
the
attorney
at
$800,000
who
Fordes
consent
R.
offers
Evid.
to
408(a)
compromise
(prohibiting
when
offered
evidence
to
of
prove
See
compromise
liability
or
for,
testimony about the consent judgment was proper under Rule 408,
the testimony was too prejudicial and therefore should have been
excluded
under
Rule
403.
See
Fed.
R.
Evid.
403
(Although
of
considerations
outweighed
the
of
by
issues,
undue
the
or
delay,
danger
of
misleading
waste
unfair
the
of
prejudice,
jury,
time,
or
or
by
needless
disagree.
Assuming,
without
deciding,
that
the
The governments
Moreover,
proceedings
burden of proof.
were
civil
and
governed
by
lesser
United
States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995) ([I]n order
to find a district courts error harmless, we need only be able
to say with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
15
VI.
Finally, Forde contends that the district court erred by
rejecting his post-verdict claims of juror misconduct.
In a
The district
obligated
misconduct.
to
We disagree.
investigate
colorable
A district court
claims
of
juror
16
(1982)
(This
allegations
of
Court
has
long
juror
partiality
held
that
is
hearing
the
remedy
for
which
the
in
of
such
occurrences
when
they
happen.
Such
party
extrinsic
alleging
misconduct
influence
impartiality.
to
makes
overcome
an
the
adequate
showing
presumption
of
of
jury
mere speculation.
to
hold
post-trial
jury
hearing
when
reasonable
that
specific,
nonspeculative
impropriety
has
and
internal
quotation
marks
omitted)).
Fordes
that
the
foreperson
possibly
talked
to
her
husband,
who
also
contends
that
the
district
court
erred
by
Forde claims
that his business websites were viewed during the trial, and
that the subpoenas were necessary to assess whether any of the
twelve
jurors
were
the
ones
who
had
accessed
the
sites
and
This argument is
The
district
the
court
committed
no
error
by
refusing
to
issue
VII.
Because
we
find
no
reversible
error,
we
hereby
affirm
18