Thursday, March 26, 2015
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Panel Orders New Trial for Loan Officer Convicted in Scheme
Ninth Circuit Says Defendant Should Have Been Allowed to Show That Boyfriend/Boss Coerced Her
By KENNETH OFGANG, Staff Writer
A loan officer charged with wire fraud and conspiracy for her role in a scheme to obtain fraudulent mortgage loans is entitled to a new trial, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge Richard Clifton, writing for the panel, said Heidi Haischer should have been allowed to present evidence that her boyfriend Kelly Nunes, who was also her superior at the bank where she worked, coerced her into joining him in the plan to finance two housing purchases by submitting false financial documents.
Haischer drew a 15-month prison sentence, plus three years of supervised release, following her conviction two years ago. Nunes was tried separately and sentenced to 51 months in prison.
Bureau of Prisons records show that Haischer is no longer in custody, while Nunes is at FCI-Safford in Arizona and scheduled to be released in May of next year.
Pretrial Ruling
U.S. District Judge Miranda Du of the District of Nevada had ruled prior to Haischer’s trial that she would be allowed to present evidence of physical abuse at the hands of Nunes, following a hearing at which Haischer’s sister testified that Nunes wouldn’t allow Haischer to go to a doctor to treat a broken leg unless she signed loan documents.
At trial, prosecutors presented evidence that Haischer obtained loans to purchase two houses, one in Henderson and one in Las Vegas, by significantly inflating her income and assets in the loan applications. She also concealed her purchase of the Henderson property from the lender who financed the Las Vegas house, even though she had already closed.
The defense then altered its trial strategy, dropping its duress defense in favor of a contention that in relying on her boyfriend, who was also senior to her at work and who actually prepared the loan applications, Haischer lacked the mental state requisite to the commission of fraud and conspiracy.
Evidence Excluded
Du then excluded the abuse evidence that she had ruled admissible pretrial, concluding that it was highly prejudicial and of little probative value in light of the strategic shift.
But the evidence should have been admitted, Clifton wrote for the appellate panel, because Haischer “was, at a minimum,” under pressure to sign the documents.
“Had this evidence been before the jury, a reasonable juror might have doubted whether Haischer had the requisite knowledge and intent to commit fraud,” the judge wrote.
The error violated Haischer’s “due process right to present a complete defense, Clifton added, and was particularly prejudicial in light of the “deliberate ignorance,” or Jewell—as in United States v. Jewell, 532 F.2d 697 (9th Cir. 1976)—instruction that Du gave the jury over defense objection. Jurors were told that they could find the defendant to have acted knowingly if she “was aware of a high probability that the information that she included in mortgage applications was false,” and “deliberately avoided learning the truth.”
Clifton also cited the traditional rule allowing inconsistent defenses in criminal cases. “We see no reason why this widely accepted principle…should not apply with equal force where a defendant seeks both to assert the defense that she acted under duress and to hold the government to its burden of proof on the issue of mens rea by contending that she did not commit the unlawful act with the required level of knowledge or intent,” he wrote.
Senior Judge A. Wallace Tashima and Judge M. Margaret McKeown joined in the opinion.
The case is United States v. Haischer, 13-10392.
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