USA v. Nicholas Lindsey

Filing

FILED OPINION (SUSAN P. GRABER, RONALD M. GOULD and MICHELLE T. FRIEDLAND) AFFIRMED. Judge: RMG Authoring. FILED AND ENTERED JUDGMENT. [10333609]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NICHOLAS LINDSEY,
Defendant-Appellant.

No. 14-10004
D.C. No.
2:11-cr-00217LDG-CWH-1
OPINION

Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, Senior District Judge, Presiding
Argued and Submitted March 18, 2016
San Francisco, California
Filed February 27, 2017
Before: Susan P. Graber,* Ronald M. Gould,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Gould

*

After oral argument in this case, and our former opinion and
memorandum disposition filed June 28, 2016, and after the petition for
rehearing or rehearing en banc was filed on August 19, 2016, Judge
Graber on January 26, 2017, replaced Judge Noonan on this panel.

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UNITED STATES V. LINDSEY
SUMMARY**

Criminal Law
The panel affirmed convictions in a mortgage fraud case.
The panel held (1) negligence is not a defense to wire
fraud, and evidence of lender negligence is not admissible as
a defense to mortgage fraud; (2) intentional disregard of
relevant information is not a defense to wire fraud, and
evidence of intentional disregard by lenders is not admissible
as a defense to mortgage fraud; (3) evidence of individual
lender behavior is not admissible to disprove materiality, but
evidence of general lending standards in the mortgage
industry is admissible to disprove materiality; and (4) the
district court did not deny the defendant the opportunity to
present a complete defense.
The panel addressed other contentions in a concurrentlyfiled memorandum disposition.

COUNSEL
William H. Gamage, Gamage & Gamage, Las Vegas,
Nevada, for Defendant-Appellant.
Peter S. Levitt (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Daniel G. Bogden,

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. LINDSEY

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United States Attorney; United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellee.
Heather E. Williams, Federal Defender for the Eastern
District of California; Hilary Potashner, Federal Defender for
the Central District of California; Ann C. McClintock,
Assistant Federal Defender; Office of the Federal Public
Defender, Sacramento, California; Michael Tanaka, Deputy
Federal Public Defender, Office of the Federal Public
Defender, Los Angeles, California; Karen Lee Landau, Law
Office of Karen Landau, Oakland, California; Barry L.
Morris, Walnut Creek; for Amicus Curiae Federal Defenders
for the Central and Eastern Districts of California.

OPINION
GOULD, Circuit Judge:
We address the admissibility of certain evidence in this
criminal mortgage fraud case. We affirm the convictions,
rejecting appellant’s contentions that evidence was
improperly excluded and that he was denied the ability to
present a defense. In a separate memorandum disposition
filed concurrently, we reject other challenges to the
convictions and some challenges to the sentence.
Nicholas Lindsey, a former mortgage loan officer and real
estate broker, appeals his convictions and sentence for nine
counts of wire fraud and one count of aggravated theft. For
several years, Lindsey was involved in a complex mortgage
fraud scheme that involved convincing individuals to “buy”
residential properties in exchange for financial assistance. In
some cases, Lindsey built up these individuals’ credit ratings

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UNITED STATES V. LINDSEY

and deposited money into their bank accounts in order to
fraudulently secure mortgages. He also submitted falsified
loan documents to lenders in order to make the individuals
appear more creditworthy, including falsely stating the
applicants’ earned income. The properties secured through
this scheme were destined for foreclosure, creating large
losses for financial institutions1 while Lindsey benefitted
financially from commissions, rent payments, and diverted
escrow monies.
Lindsey was charged with wire fraud under 18 U.S.C.
§ 1343, which requires the Government to prove that the
defendant made “material” fraudulent representations, i.e.,
representations that had “a natural tendency to influence, or
[were] capable of influencing” the decisions of the lenders
who made the loans. United States v. Gaudin, 515 U.S. 506,
509 (1995) (quoting Kungys v. United States, 485 U.S. 759,
770 (1988)); Neder v. United States, 527 U.S. 1, 16 (1999).
At his trial, the district court precluded Lindsey from
presenting certain evidence regarding the practices of
particular lenders. He appeals his convictions on the ground
that he was denied his constitutional right to present a
defense. We have jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291, and we hold that lender negligence in
verifying loan application information, or even intentional
disregard of the information, is not a defense to fraud, and so
evidence of such negligence or intentional disregard by

1

As reflected in the Presentence Report and as testimony at sentencing
indicated, the loans and/or properties at issue in this case appear to have
been purchased from the original lender by a second financial institution.
Thus the victims in this case—at least for the purposes of restitution—are
the second financial institutions that suffered losses at the time of
foreclosure, not the original lenders.

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particular lenders is inadmissible as a defense against charges
of mortgage fraud. We also hold that evidence of the general
lending standards applied in the mortgage industry is
admissible to disprove materiality, but evidence of individual
lender behavior is not admissible for that purpose.
I
Lindsey worked for Clear Mortgage, Inc., in Nevada as a
mortgage loan officer and team leader for a mortgage group.
From about May 2006 to June 2007, while employed with
Clear Mortgage, Lindsey recruited straw buyers for Las
Vegas real estate and, in the process, made false statements
in loan applications. In one illustrative example presented at
trial, Lindsey recruited Madelon Bridges, a woman living in
Louisiana with only $50 to her name, to “purchase” Villa Del
Mar, a house in Las Vegas worth $720,000. Lindsey flew
Bridges to Las Vegas and promised to pay off her debt and
give her $10,000 in exchange for acting as a straw buyer.
Bridges gave Lindsey her personal identification information,
including her social security number and fingerprints, and
Lindsey paid off her debt and transferred money into her bank
account. Lindsey also had Bridges sign a loan application
that falsely represented, inter alia, that she intended to live at
the property she was applying for a loan to purchase, paid
$3,300 a month in rent, was gainfully employed, and had a
sizeable bank account. After she was approved for the loan,
Lindsey used Bridges’s personal information to apply for
another loan and purchase another home in her name without
her knowledge. When Lindsey did not make mortgage
payments as promised, Villa Del Mar went into foreclosure,
negatively affecting Bridges’s credit rating and causing losses
to the lender. Lindsey perpetrated similar frauds with five
straw buyers—including his sister—on nine home loans and

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eight different properties. From this scheme, Lindsey
profited by receiving significant commissions, rent payments,
and diverted escrow monies.
Lindsey was arrested and indicted on nine counts of wire
fraud under 18 U.S.C. § 1343 and one count of aggravated
identity theft under 18 U.S.C. § 1028A. Before trial, the
Government suspected that Lindsey was planning to defend
himself by claiming that the lenders were at fault for failing
to verify the information in the fraudulent loan applications.
The Government filed a motion in limine to prevent Lindsey
from introducing evidence of lender negligence. The district
court declined to rule on the issue, concluding that a final
ruling “would be more appropriately made in the context of
the development of the evidence at trial.”
During opening statements at trial, the district court
warned Lindsey’s attorney to “stay away” from the issue of
lender negligence. Nevertheless, Lindsey’s counsel described
2006 to 2007 as “a wild time” of mortgage lending, one that
he had once referred to as the “Wild West.” It was a period,
counsel said, when “there were mortgages being offered that
had never been offered before and perhaps may never be
offered again.” These mortgages included “stated income”
and “no income, no assets”2 loans. The Government objected
to defense counsel’s description of the loan products, arguing
that it was evidence of lender negligence. The district court
2

Lindsey’s counsel urged in the opening statement that a “stated
income” loan “means that the lender will rely on the borrower to state
their income and state their assets,” and that a “no income, no assets” loan
means that “the lender did not appear to know about the income or assets
on that particular loan.” On appeal, Lindsey describes “the stated/no doc
loan type as a loan that banks offered [] which allowed applicants to
provide no back up documentation for their income and assets.”

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allowed the description of the loans, but warned counsel
again to “stay away” from suggesting negligence. The
district court subsequently told the parties that it was
“inclined” to exclude evidence of lender negligence from the
rest of trial.
Lindsey’s counsel later cross-examined a Government
witness about the state of the mortgage industry at the time of
Lindsey’s alleged fraud. The witness testified that both
“stated income” and “no document” loans were common at
the time. Lindsey’s attorney then got more specific, asking
the witness about previous bad loans that her employer, a
lender, had provided. The Government objected. During a
sidebar the prosecutor argued that the district court had
already ruled on the issue of lender negligence, and so
defense counsel’s question was irrelevant. The district court
sustained the objection.
In cross-examining another Government witness,
Lindsey’s counsel asked about two loan applications that the
witness, a former employee of a lender, had previously
approved. The applications were for the same property, but
the bank account information in the applications differed.
Lindsey’s counsel asked whether this meant that one of the
applications was false, and how the witness would have
responded to such an inaccuracy. The Government objected,
arguing that Lindsey’s attorney was again eliciting evidence
of lender negligence, and the district court again sustained the
objection.
During closing arguments, the district court allowed
defense counsel, over the Government’s objections, to say
that “[i]n 2006 and 2007 America was on a mortgage loan
high.” He was allowed to say that loans went bad because of

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UNITED STATES V. LINDSEY

“[e]asy lending practices” and because “100 percent
financing of a mortgage on stated income and stated assets”
allowed “people [to buy] houses they could not afford.”
Defense counsel also said that, at the time, buyers and sellers
of real estate were “extremely busy,” making money very
quickly, and would sometimes make mistakes or “do things
on purpose just to close a deal.”
In charging the jury, the district court included an
instruction stating that “[l]oose lending practices do not
constitute a defense to wire fraud, but the lending standards
applied by the financial institutions that lent the money in this
case are relevant to the question of materiality.”
The jury convicted Lindsey of all counts. The district
court sentenced Lindsey to consecutive sentences of 108
months for wire fraud and 24 months for identity theft, for a
total of 132 months. The court also imposed $2,286,911 in
restitution. Lindsey timely appealed.
II
To convict a defendant of wire fraud, the jury must find
beyond a reasonable doubt: “(1) the existence of a scheme to
defraud; (2) the use of wire, radio, or television to further the
scheme; and (3) a specific intent to defraud.” United States
v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013). In order to
prove a “scheme to defraud,” the jury must find that the
defendant employed “material falsehoods.” Neder, 527 U.S.
at 20. “In general, a false statement is material if it has ‘a
natural tendency to influence, or [is] capable of influencing,
the decision of the decisionmaking body to which it was
addressed.’” Id. at 16 (alteration in original) (quoting Gaudin,
515 U.S. at 509).

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The element of materiality is evaluated under an objective
test, in which we must examine “the intrinsic capabilities of
the false statement itself, rather than the possibility of the
actual attainment of its end.” United States v. Peterson,
538 F.3d 1064, 1072 (9th Cir. 2008) (internal quotation marks
omitted). “To be material a statement need only have the
propensity or capacity to influence or affect [a lender’s]
decision.” United States v. Rodriguez-Rodriguez, 840 F.2d
697, 700 (9th Cir. 1988). Stated differently, “the government
does not have to prove actual reliance upon the defendant’s
misrepresentations” to satisfy materiality. Neder, 527 U.S. at
25 (quoting United States v. Stewart, 872 F.2d 957, 960 (10th
Cir. 1989)).
Lindsey contends that the district court erred by barring
him “from challenging the materiality of false statements on
a loan type that invites the applicant to state their income
without justification or support.” According to Lindsey, this
prevented him from presenting a complete defense, a right
that is constitutionally protected. See Crane v. Kentucky,
476 U.S. 683, 690 (1986) (“[T]he Constitution guarantees
criminal defendants a meaningful opportunity to present a
complete defense.” (internal quotation marks omitted)). We
review de novo a district court’s decision to preclude a
defendant’s proffered defense. See United States v.
Forrester, 616 F.3d 929, 934 (9th Cir. 2010).
Whether trial courts may admit evidence of a lender’s
decision-making process—including evidence that a lender
has been careless in approving undeserving loans, or even
intentional in disregarding relevant information—is an issue
that has been debated in this circuit’s lower courts. See
United States v. Kuzmenko, No. 2:11-CR-0210 JAM, 2014
WL 7140640, at *6 n.5 (E.D. Cal. Dec. 12, 2014)

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(unpublished) (collecting cases and noting that “[w]hether,
and to what extent, a jury must know about the lenders’
decision-making process in a mortgage fraud prosecution
would appear to be an issue over which reasonable minds
might disagree”). We understand the desire to see lenders
shoulder responsibility for their role in the mortgage crisis of
the last decade. See Nevada v. Bank of Am. Corp., 672 F.3d
661, 670–71 (9th Cir. 2012) (“The Center for Responsible
Lending estimates that from 2009 to 2012, foreclosures on
neighboring homes will result in lost home equity in nearly
one million homes across Nevada, amounting to total lost
home equity of $54.5 billion. The city of Las Vegas has the
second highest foreclosure rate in the nation. Considering the
devastating effect of the foreclosure crisis on Nevada, it is
unsurprising that the Attorney General would exercise her
statutory right to [prosecute deceptive trade practices by
mortgage lenders].” (footnotes omitted)). However, that does
not mean that lenders can be victimized3 by intentional
fraudulent conduct with impunity merely because the lenders
were negligent, or even because the lenders intentionally
disregarded the information in a loan application. Two
wrongs do not make a right, and lenders’ negligence, or even
intentional disregard, cannot excuse another’s criminal fraud.
Several of our sister circuits have held that a fraud
victim’s negligence is not a defense to criminal charges under
the federal fraud statutes. See United States v. Colton,
231 F.3d 890, 903 (4th Cir. 2000) (“The susceptibility of the

3
We use the words “victimized” and “victim” in this context to describe
the original lenders, while acknowledging that the entities that actually
lost money in this scheme at the time of foreclosure—the victims in this
case for the purposes of restitution—were those financial institutions that
purchased the loans and/or collateral from the original lenders.

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victim of the fraud, in this case a financial institution, is
irrelevant to the analysis: If a scheme to defraud has been or
is intended to be devised, it makes no difference whether the
persons the schemers intended to defraud are gullible or
skeptical, dull or bright.” (internal quotation marks omitted));
see also United States v. Svete, 556 F.3d 1157, 1165 (11th
Cir. 2009) (en banc) (“A perpetrator of fraud is no less guilty
of fraud because his victim is also guilty of negligence.”);
United States v. Allen, 201 F.3d 163, 167 (2d Cir. 2000) (per
curiam) (“The victim’s negligence in permitting a crime to
take place does not excuse the defendant from culpability for
[the] substantive offense . . . .”); United States v. Coyle,
63 F.3d 1239, 1244 (3d Cir. 1995) (“The negligence of the
victim in failing to discover a fraudulent scheme is not a
defense to criminal conduct.”); United States v. Kreimer,
609 F.2d 126, 132 (5th Cir. 1980) (“The victim’s negligence
is not a defense to criminal conduct.”).
In United States v. Ciccone, we rejected the defendant’s
argument that the Government was required to prove that the
defendant’s fraud was calculated to defraud persons of
ordinary prudence and comprehension. 219 F.3d 1078, 1083
(9th Cir. 2000). We held that “the wire-fraud statute protects
the naive as well as the worldly-wise . . . . [T]he lack of guile
on the part of those solicited may itself point with persuasion
to the fraudulent character of the artifice.” Id. (quoting
United States v. Hanley, 190 F.3d 1017, 1023 (9th Cir. 1999),
superseded on other grounds by statute). Although Ciccone
discussed the elements of wire fraud, not permissible
defenses, its reasoning is persuasive here. We join several of
our sister circuits in holding that a victim’s negligence is not
a defense to wire fraud. Evidence of lender negligence is thus
not admissible as a defense to mortgage fraud.

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Lindsey maintains on appeal that he did not seek to
introduce evidence of lender negligence at trial, but rather
“evidence of the materiality of falsehoods that may have
appeared on loan applications.” Without saying so explicitly,
Lindsey may be arguing in substance that he wanted to
introduce evidence that his alleged victims were willing to
approve the loans regardless of the information included in
the application forms. This theory implies something more
than lender negligence, and approaches intentionality.
But the intentional conduct of the lender cannot provide
an effective defense based on alleged lack of materiality. A
false statement is material if it objectively had a tendency to
influence, or was capable of influencing, a lender to approve
a loan. See Peterson, 538 F.3d at 1072; Neder, 527 U.S. at
16. This standard is not concerned with a statement’s
subjective effect on the victim, but only “the intrinsic
capabilities of the false statement itself.” Peterson, 538 F.3d
at 1072. For this reason we have previously held that
“misrepresentation may be material without inducing any
actual reliance.” United States v. Blixt, 548 F.3d 882, 889
(9th Cir. 2008) (quoting United States v. Halbert, 640 F.2d
1000, 1009 (9th Cir. 1981) (per curiam)); see also Neder,
527 U.S. at 24–25 (“The common-law requirement[] of
‘justifiable reliance’ . . . plainly ha[s] no place in the federal
fraud statutes.”).
That the lenders here might have intentionally disregarded
Lindsey’s false statements has little relevance to whether
those statements are intrinsically able to influence a decision.
Again, materiality is an objective element, and an absence of
reliance does not affect its presence. See United States v.
Reynolds, 189 F.3d 521, 525 (7th Cir. 1999) (“Evidence that
the bank would not have relied on [the defendant’s]

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representations, and instead would have made an exception
for him, does not establish that the representations were
immaterial . . . . [T]he proper inquiry addresses not the
defendant’s ability to influence, but rather the nature of the
statements made.”). We hold that a victim’s intentional
disregard of relevant information is not a defense to wire
fraud and thus evidence of such disregard is not admissible as
a defense to mortgage fraud. To the extent that Lindsey tried
to introduce evidence of lenders’ intentional disregard and the
district court prevented him, the district court did not err.
Our holdings do not leave defendants powerless to
challenge the materiality of false statements made in
connection with securing mortgages. Among other things,
defendants can disprove materiality through evidence of the
lending standards generally applied in the mortgage industry.
For example, defendants can offer testimony about the types
of information, such as household income or assets, that
lenders typically consider, as well as evidence of how much
weight the industry generally gives to statements about such
information. As long as defendants do not stray into evidence
of the behavior of individual lenders—for instance, evidence
of specific prior bad loans or particular mistakes by
underwriters—defendants may attack materiality though
industry practice.
To illustrate, suppose a defendant is charged with wire
fraud for falsely stating on a loan application that he was
married. In such a case, it would be admissible for a defense
expert to testify that, while mortgage applications usually ask
about marital status, the general practice in the industry is to
ignore marital status when making lending decisions. The
defendant could then argue in closing that his false statement
about marriage was immaterial, and so the elements of wire

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fraud have not been proven. By contrast, a district court
could properly exclude evidence that (a) the particular lender
to whom the defendant lied did not generally give weight to
marital status when deciding whether to lend, or (b) there
were prior instances in which that lender did not consider
marital status in making loans.
This line between evidence of industry practice and the
practice of particular lenders is subtle, but it is in our view the
best combined reading of two competing lines of precedent.
On the one hand are the cases, already discussed, holding that
materiality focuses on the intrinsic nature of the statement,
see, e.g., Peterson, 538 F.3d at 1072, that negligence is not a
defense to fraud, see, e.g., Colton, 231 F.3d at 903, and that
reliance is not an element of wire fraud, see, e.g., Neder,
527 U.S. at 24–25. These cases all counsel toward banning
evidence of lender behavior in any form, whether general or
particular.
On the other hand is the Supreme Court’s recent
reasoning in Universal Health Services, Inc. v. United States
ex rel. Escobar, 136 S. Ct. 1989 (2016). Escobar involved
materiality under the False Claims Act (“FCA”).4 Id. at 2001.
The plaintiffs there asserted a theory of FCA liability known
as “implied false certification.” Id. at 1995. According to the
theory, the defendant was liable under the FCA because,
when it submitted its claims for payment to the Government,
it did not disclose that it was in violation of material
statutory, regulatory, or contractual requirements. Id. The

4

The Supreme Court has used cases on materiality in one context as
precedent for materiality in another. See, e.g., Gaudin, 515 U.S. at 509
(materiality for crime of making false statements) (citing Kungys,
485 U.S. at 770 (materiality for revocation of citizenship)).

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Court addressed one type of proof admissible to show that
one of these allegedly violated requirements was material:
[P]roof of materiality can include, but is not
necessarily limited to, evidence that the
defendant knows that the Government
consistently refuses to pay claims in the mine
run of cases based on noncompliance with the
particular statutory, regulatory, or contractual
requirement. Conversely, if the Government
pays a particular claim in full despite its
actual knowledge that certain requirements
were violated, that is very strong evidence that
those requirements are not material. Or, if the
Government regularly pays a particular type
of claim in full despite actual knowledge that
certain requirements were violated, and has
signaled no change in position, that is strong
evidence that the requirements are not
material.
Id. at 2003–04. The Supreme Court’s language suggests that
evidence of the Government’s past treatment of a particular
requirement is admissible to show that a defendant’s violation
of that requirement is not material. Translating to the
mortgage fraud context, Escobar suggests that defendants be
allowed to probe lender behavior to some extent. The
question is how much.
According to Lindsey, Escobar directs that factfinders in
a mortgage fraud prosecution be free to consider any
evidence of lender behavior, including how an individual
lender treats a particular false statement on its loan
applications. But this interpretation misses that the Federal

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Government in an FCA case is in a far different position than
is an individual lender in a mortgage fraud prosecution. A
single lender represents only some small part of the market
for issuing mortgages. The Federal Government, by contrast,
represents the entire market for issuing federal government
contracts. The weight the Government gives to a particular
statutory, regulatory, or contractual requirement is analogous
not to the weight an individual lender gives to a statement on
its loan application, but rather the weight the entire mortgage
industry gives to that type of statement.
This difference matters because materiality measures
natural capacity to influence, not whether the statement
actually influenced any decision. See Peterson, 538 F.3d at
1072. The way the entire market has historically treated a
statement or requirement says a lot about that statement or
requirement’s natural capacity to influence a decision by
market participants. But the way one market participant of
many has previously treated a statement says little or nothing
about that statement’s inherent ability to affect decision
making. Add the fact that evidence of individual lender
behavior can easily touch on lender negligence, intentional
disregard, or lack of reliance—none of which is a defense to
mortgage fraud—and a bright-line rule against evidence of
individual lender behavior to disprove materiality is both a
reasonable and necessary protection and faithful to Escobar.
We recognize that an alternative possible rule would be
to allow evidence of past behavior by individual lenders, but
require a jury instruction that the evidence be considered only
for the purpose of evaluating materiality, and not negligence,
intentional disregard, or lack of reliance. See Fed. R. Evid.
105 (“If the court admits evidence that is admissible against
a party or for a purpose – but not against another party or for

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another purpose – the court, on timely request, must restrict
the evidence to its proper scope and instruct the jury
accordingly.”). We decline to follow this course. As already
discussed, the lending standards applied by an individual
lender are poor evidence of a false statement’s intrinsic
ability to affect decision making. There is also a risk that
despite a limiting instruction, evidence of prior non-reliance
by lenders would still lead factfinders to consider whether the
victims themselves relied on the defendant’s false statements.
A prophylactic rule against all evidence of individual lender
behavior best avoids these concerns. See Fed. R. Evid. 403
(“The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more
of the following: unfair prejudice, confusing the issues,
misleading the jury . . . .”).
III.
Applying our rule here, the district court did not prevent
Lindsey from presenting a complete defense. See United
States v. Alvirez, 831 F.3d 1115, 1125 (9th Cir. 2016). On the
one hand, the district court properly excluded evidence of
individual lender behavior. When Lindsey’s counsel asked
a Government witness about specific loans that her employer
had approved, the district court sustained the Government’s
objection. Later, defense counsel asked another Government
witness whether a particular loan application was false, and
how the witness would have responded to such a false
application. The Government objected and the district court
again sustained the objection.
On the other hand, the district court properly allowed
evidence of the lending standards generally present in the
industry. During opening statements, Lindsey’s counsel

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described 2006 to 2007 as a “wild time” of mortgage lending,
and recounted that he had once referred to the period as the
“Wild West.” He explained that “there were mortgages being
offered that had never been offered before and perhaps may
never be offered again,” and that the mortgages included
“stated income” and “no income, no assets” loans. The
Government objected, but the district court allowed defense
counsel to continue.
The district court later permitted defense counsel to elicit
testimony from a Government witness that “stated income”
and “no document” loans were common in the market at the
time of Lindsey’s alleged offenses. It was only when defense
counsel began to ask about specific prior bad loans that the
district court intervened, sustaining an objection from the
Government.
During closing arguments, Lindsey’s counsel again hit on
the lending standards previously commonplace in the
mortgage market. He explained that “[i]n 2006 and 2007
America was on a mortgage loan high.” As a result of
“[e]asy lending practices” and “100 percent financing of a
mortgage on stated income and stated assets,” lenders made
bad loans to “people [who] bought houses they could not
afford.” The Government objected to these statements, but
the district court overruled the objection. Defense counsel
also told the jury that buyers and sellers of real estate were
“extremely busy,” making money very quickly, and would
sometimes make mistakes or “do things on purpose just to
close a deal.”
After closing arguments, the district court instructed the
jury that “[l]oose lending practices do not constitute a defense
to wire fraud, but the lending standards applied by the

Case: 14-10004, 02/27/2017, ID: 10333609, DktEntry: 97-1, Page 19 of 19

UNITED STATES V. LINDSEY

19

financial institutions that lent the money in this case are
relevant to the question of materiality.” Not only did this
instruction allow the jury to consider the evidence of industry
lending standards that the district court properly admitted, but
it went a step further in Lindsey’s favor (contrary to our
above holdings) by allowing the jury to consider any
evidence of particular lenders’ standards that might have
squeaked its way into the record. From opening statement,
through the case-in-chief, and on to closing argument and
jury instructions, the district court allowed Lindsey to argue
and present evidence that his false statements were not
material in light of general industry lending standards.
Lindsey was not denied his right to present a complete
defense. See Alvirez, 831 F.3d at 1125.
IV.
In conclusion, we hold the following: (1) negligence is
not a defense to wire fraud, and evidence of lender negligence
is not admissible as a defense to mortgage fraud;
(2) intentional disregard of relevant information is not a
defense to wire fraud, and evidence of intentional disregard
by lenders is not admissible as a defense to mortgage fraud;
(3) evidence of individual lender behavior is not admissible
to disprove materiality, but evidence of general lending
standards in the mortgage industry is admissible to disprove
materiality; and (4) the district court did not deny Lindsey the
opportunity to present a complete defense. We affirm
Lindsey’s convictions.
AFFIRMED.