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Click here for the full text of this decision FACTS:In 2002, Sean Nguyen, a mortgage broker for Century Mortgage, and Dai Quoc Nguyen, a sales representative for Re/Max, devised a scheme to take advantage of a loan program that mortgage lender Countrywide Home Loans offered to its customers. The loan program allowed customers to secure a “no income, no asset” verification loan, or “NINA” loan, in which a home loan applicant who had an outstanding credit rating and who planned to live in a purchased home could obtain a loan without documentation of his or her income or assets. The government alleges that the scheme worked as follows: The defendants and co-conspirators would locate a single family residence offered for sale in metropolitan Dallas. Sean would have appraiser Ghandi Morka prepare an appraisal for the home which would overstate its true value by $100,000 to $200,000. Other participants in the scheme would recruit a “straw buyer” with good credit to act as the buyer of the property, even though this person did not intend to live in the house or pay back the loan. One of two mortgage companies, either Asia Financial or EZ Financial, prepared a loan application and residential purchase contract based on the personal information that the straw buyer provided. The mortgage company would then submit a loan application to Countrywide for processing under the NINA program. Countrywide’s loan amount, based on the sales price which was in turn based on a bogus appraisal, would be far in excess of the fair market value of the property. Countrywide would then disburse the amount of the loan to the seller. The seller would keep an amount equal to the equity in the house, and the “profit” � the excess money that the seller obtained because of the fraudulently high appraisal � would be distributed among the conspirators. The government presented evidence to show that Myna Tran and Tam Nguyen were involved in several parts of the scheme. The government claimed that Myna was involved in the sale of four properties, two of which were included in the indictment and two of which were not. Tam’s role in the scheme was to find straw buyers to participate in the fraudulent real estate transactions. Sean testified that he allowed Tam to decide how much money to give to each straw buyer, directing Tam to split the remainder of the profit with Sean. The government tried Myna and Tam in the same trial, along with one other defendant. Several witnesses that had important roles in the scheme, including Sean and Dai, the masterminds of the plan, testified against Myna and Tam. A jury convicted Myna of one count of conspiracy to commit mail fraud and wire fraud and to engage in illegal monetary transactions, five counts of wire fraud, one count of mail fraud, and two counts of money laundering. The district court sentenced Myna to 30 months of imprisonment and ordered her to pay restitution in the amount of $899,809.63. The jury also convicted Tam of one count of conspiracy to commit mail fraud and wire fraud and to engage in illegal monetary transactions, 12 counts of wire fraud, two counts of mail fraud and three counts of money laundering. The district court sentenced Tam to 60 months of imprisonment for the conspiracy count and 78 months on the other counts, with the sentences to run concurrently. The district court also ordered Tam to pay restitution in the amount of $966,118.53. Both defendants appealed their convictions. HOLDING:Affirmed. Mail and wire fraud, the court stated, are specific intent crimes that require the government to prove that a defendant knew the scheme involved false representations. Myna, the court stated, claimed that the government failed to provide sufficient evidence on this point. Myna also argued that the government did not present sufficient evidence to convict her of the counts relating to the Silvercrest property. Finally, Myna argued that the government provided insufficient evidence to convict her of money laundering. But the court found Myna’s arguments to be unavailing, because at trial the government presented sufficient evidence to demonstrate that: 1. Myna was aware that the transactions involved at least three false representations; 2. Myna had knowledge of the illegality of the Silvercrest transaction; and 3. Myna had constructive possession of the illegal funds to support the money laundering convictions. The court also found that the district court erred in admitting summary witness testimony under Federal Rule of Evidence 1006, but that the error was harmless. The court also found that the district court did not err in admitting evidence of unindicted transactions: the Tabor and Rolling Hills deals, which prosecutors alleged employed the same scheme as the Fox Hunt sale. The court noted that the evidence of the Tabor and Rolling Hills deals demonstrated how the operation worked and therefore established Myna’s knowledge and intent. Moreover, Myna failed to show how any prejudicial effect of this evidence outweighed its probative value. Finally, the district court issued a limiting instruction to notify the jury that it could use the extrinsic evidence only to ascertain Myna’s mental state. Accordingly, the court found that the district court appropriately admitted this evidence as extrinsic under Federal Rule of Evidence 404(b) and correctly issued a limiting instruction. Tam, the court stated, argued that his counsel provided ineffective assistance, resulting in prejudice. Tam argued that his counsel should have objected to the testimony of Hong Duong, one of the straw buyers. Duong, the court explained, testified that he pleaded guilty to his role in one of the fraudulent real estate transactions. He later stated, however, that he did not know that the real estate transaction was fraudulent. The district court, out of the jury’s presence, determined that it could not accept Duong’s plea agreement given the discrepancies between the agreement and his testimony. The district court decided not to tell the jury that the court was withdrawing Duong’s plea agreement, and neither side objected. On appeal, Tam argued that his trial counsel’s failure to object to Duong’s testimony amounted to ineffective assistance of counsel, because it left the jury with the impression that one could be guilty of conspiracy without having an intent to defraud. The court found Tam’s argument meritless. First, the court stated that Tam failed to show why his counsel acted unreasonably in failing to object to the court’s decision not to inform the jury about the withdrawn plea, especially because doing so would have highlighted Duong’s testimony. Second, the court found that Tam failed to show that his attorney’s trial tactics prejudiced him. OPINION:Prado, J.; Jolly, Stewart and Prado, JJ.

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