United States of America v. Marcus Wiseman

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3706
___________
UNITED STATES OF AMERICA
v.
MARCUS WISEMAN,
Appellant.
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 06-cr-223-1)
District Judge: Honorable Donetta W. Ambrose
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 19, 2009
Before: FUENTES, JORDAN, and NYGAARD Circuit Judges.
(Opinion Filed: August 6, 2009)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Marcus Wiseman (“Wiseman”) appeals his conviction and sentence for bribery,

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We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 and 18 U.S.C. §1
3742(a)(1).
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conspiracy, and wire fraud in violation of 18 U.S.C. §§ 215(a)(2), 371, and 1343.
Following a jury trial, he was sentenced to a forty-one month term of imprisonment.
Wiseman remains free, however, pending the disposition of this appeal. For the reasons
set forth below, we will affirm the judgment of the District Court in all respects.1
I.
Because we write exclusively for the parties, we only discuss the facts to the extent
necessary for resolution of the case.
Wiseman has extensive experience in home mortgage lending, having worked in
the industry for at least the last decade. During that time, he served in a variety of
positions, ranging from broker to underwriter. Further, he both operated his own firm and
managed branch offices of national lending institutions.
Beginning in 2002, Wiseman procured several fraudulent mortgage loans for
Jeffrey Martin (“Martin”) and Raymon Harris (“Harris”), both of whom were close
friends and former colleagues. Martin and Harris obtained at least twenty-four fraudulent
loans over a period of approximately six years, four of which were assisted by Wiseman.
Following a jury trial, Wiseman was convicted for his role in connection with the
fraudulent transactions in which he assisted. On appeal, Wiseman challenges the
admissibility of opinion testimony offered by two lay witnesses. He also challenges the

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The appraisal listed the 1995 purchase price of the property as $80,000 when in2
fact it was only $38,000. Further, it stated that the value of the property had increased to
$421,000 in 2002, only seven years later.
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appropriateness of his sentence, specifically in regard to the adjustments for the amount
of loss suffered and for his role in the offense.
II.
We first address Wiseman’s contention that he suffered substantial prejudice from
non-disclosed expert witness testimony. He argues that the trial testimony offered by two
lay witnesses was inappropriate because the testimony involved specialized knowledge
and therefore should have been admitted as expert testimony. Wiseman’s claim is based
on three questions asked by the Government: one posed to Martin and two directed to
Shelly Beck (“Beck”). We review the District Court’s decision to admit lay opinion
testimony for abuse of discretion. United States v. Hoffecker, 530 F.3d 137, 170 (3d Cir.
2008).
At trial, the Government established that Martin grew-up in Pittsburgh, that he had
worked in the area for at least ten years, and that he was familiar with the real estate
market, particularly in a neighborhood known as Polish Hill. One property owned by
Martin, which he later refinanced with Wiseman’s assistance, was located in Polish Hill.
Martin testified that he submitted an appraisal concerning this property to Wiseman, on
which Martin falsified both the original purchase price and current value of the property.2
The Government subsequently asked Martin whether, “based upon [his]

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In response to Wiseman’s objection, the Government rephrased the question:3
“Let’s say that you were associate with both of these loans and you had had—had this
information that’s on the chart with this switcheroo and these valuations. What do you do
with the loan file . . . ?”
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experience in the Pittsburgh area,” the increased value represented on the appraisal was
“common.” Over Wiseman’s objection, the District Court permitted Martin to answer,
reasoning that he did not need to be a trained appraiser, and therefore qualify as an expert
witness, to answer the question but could do so “based on his experience.” Martin then
explained that the increase in value would have been “[v]ery uncommon,” and that he had
“never seen a property increase like that.”
Wiseman also objected to opinions offered by Beck, the national underwriting
manager for National City Corp. At trial, Beck summarized her thirty-four years of
experience in the mortgage industry and described the training program in which
employees like Wiseman were required to participate. Further, Beck analyzed two loan
applications that had been submitted by Martin and which Wiseman had played a
significant role in originating, processing, and approving. Beck testified that the
applications contained several significant and conspicuous inconsistencies.
The Government solicited Beck’s opinion concerning what she would have done if
she had been presented with a loan application with similar representations of sale price
and present value. The Government asked: “Now, if you had all this information as
indicated in this chart, that you had done if you were associated with both of these loans
and had this information, what would you do with that loan?” The Government later3

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continued: “Now, let’s assume that as an underwriter or bank employee you have this
information in front of you. What, if anything, do you [do] with that loan file . . . ?” And
concerning the other property, the Government asked, “Now, I’ll ask you to assume for a
moment that [the property] is in one of the most distressed areas . . . . With that
assumption in mind, what do you do with the . . . loan file?”
The District Court overruled each of Wiseman’s objections to the Government’s
questions, concluding that the opinion offered by Beck was not expert testimony; rather,
the District Court reasoned that “this is what she does for a living.” In response to each
of the questions, Beck confirmed that she would not have approved the loans, would have
been suspicious of fraud, and would have referred the matter to an investigative unit of
the company.
III.
As an initial matter, we disagree with Wiseman’s contention that the opinion
testimony offered by Martin involved specialized knowledge, governed by Fed. R. Evid.
702 (“Testimony by Experts”). Indeed, it has been long and widely recognized that, “[a]s
a general rule, the opinion of a landowner as to the value of his land is admissible without
further qualification because of his close relationship with the land.” District of
Columbia Redevelopment Land Agency v. Thirteen Parcels of Land, 534 F.2d 337, 339
(D.C. Cir. 1976); see also, e.g., LaCombe v. A-T-O, Inc., 679 F.2d 431, 433 (5th Cir.
1982) (“the owner of property is qualified by his ownership alone to testify as to its
value”); United States v. 79.20 Acres of Land, More or Less, 710 F.2d 1352, 1357 (8th

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Cir. 1983) (a landowner’s “testimony as to the value of his land is admitted in federal
courts without further qualification.” (internal quotations marks and emphasis omitted));
State ex rel. Smith v. 0.15 Acres of Land, More or Less, 169 A.2d 256, 258 (Del. 1961)
(“Generally speaking, the great weight of authority is to the effect that an owner of
property may express an opinion as to its fair market value.”). Martin owned the property
in question. Wiseman has not identified, and we are not otherwise aware of, any authority
requiring that, in a circumstance like this, the general rule does not apply and that Martin
must first have been qualified as an expert witness to say what he thought his own
property was worth. We therefore cannot say that the District Court abused it’s discretion
in allowing Martin’s opinion testimony to come into evidence, even if his testimony may
have benefitted from his professional expertise.
The testimony delivered by Beck, however, is less straightforward. We have
observed that the essential difference between lay and expert opinion testimony is that “a
qualified expert may answer hypothetical questions.” Teen-Ed, Inc. v. Kimball Int’l Inc.,
620 F.2d 399, 404 (3d Cir. 1980). Here, Beck arguably did answer hypothetical questions
concerning facts that were not obtained firsthand. Even if the opinion testimony
delivered by Beck was erroneously admitted, however, we believe that the oversight at
most constitutes harmless error. Beck carefully analyzed the discrepancies contained in
the loan applications and clearly identified the troublesome nature of the documents.
Further, Martin had already testified to the bogus nature of the loans, and Wiseman did
not object to the overwhelming majority of Beck’s testimony concerning the flaws

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contained in the documents. Beck’s opinion that she would “call the authorities,” or that
the documents, “screamed fraud,” was not necessary to substantiate the Government’s
case against Wiseman and did not prejudice him. Rather, this amounted to harmless
error. United States v. Ali, 493 F.3d 387, 392 n.3 (3d Cir. 2007) (noting that “in light of
the overwhelming evidence presented at trial, any error would have been harmless”);
United States v. Long, 574 F.2d 761, 772 (3d Cir. 1978) (“The evidence of guilt in this
particular case is so substantial that the legal error may be considered harmless.”).
IV.
Wiseman also challenges the appropriateness of his sentence. He argues that (1)
the District Court erred in the calculation of the amount of loss under United States
Sentencing Guidelines Manual (“U.S.S.G.”) § 2B1.1; (2) he played a “minor role” in the
commission of the crime consistent with U.S.S.G. § 3B1.2; (3) he did not occupy a
“position of trust” as contemplated in U.S.S.G. § 3B1.3; and (4) the sentence imposed
was unreasonable. We review the District Court’s factual findings concerning amount of
loss and role in the offence for clear error. United States v. Jimenez, 513 F.3d 62, 85-86
(3d Cir. 2008) (applying clear error standard of review for calculation of loss); United
States v. Perez, 280 F.3d 318, 351 (3d Cir. 2002) (applying clear error stand of review for
minor role adjustments). A finding is clearly erroneous “if the reviewing court is left with
the definite and firm conviction based on all the evidence that the trial court made a
mistake.” Perez, 280 F.3d at 351. We apply a de novo standard of review concerning the
finding that a position of trust existed. United States v. Thomas, 315 F.3d 190, 204 (3d

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Cir. 2002).
First, Wiseman argues that the amount of loss should be calculated at no more than
$375,861, which was the amount calculated for restitution purposes. Pursuant to
U.S.S.G. § 2B1.1, if the amount of loss figure rises above $400,000, a sentencing court
adds two levels to the defendant’s guideline range. The District Court found that the loss
exceeded the amount ordered for restitution, and adjusted Wiseman’s guideline range
accordingly. Wiseman’s argument that this determination was erroneous is unconvincing.
A district court “need only make a reasonable estimate of the loss.” United States v. Ali,
508 F.3d 136, 145 (3d Cir. 2007) (internal quotation marks omitted). The restitution
figure claimed by Wiseman includes the amount of loss on only two of the four
properties; loss on the others was not factored in the restitution because there was either
no loss on the property at the date of sentencing or loss was exceedingly difficult to
calculate. For sentencing purposes, however, “the loss need not be determined with
precision.” United States v. Evans, 155 F.3d 245, 252 (3d Cir. 1998). It does not follow
that simply because the amount of loss on a property was undetermined that there is no
loss at all. The question, rather, is whether it was clear error for the District Court to
believe that the combined loss on the two properties not included in the restitution figure
would be greater than $24,139. There was more than a reasonable basis to believe that
the losses on those properties not included in the restitution figure would be equivalent to
the others—and thus bring the combined loss total well above the $400,000 benchmark
needed to satisfy § 2B1.1.

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Second, Wiseman claims that pursuant to U.S.S.G. § 3B1.2 he should have
received a two-level reduction from his guideline range for playing a “minor role” in the
offense. Wiseman argues that he was not a key player because Martin and Harris
obtained fraudulent loans from several other lending sources without his assistance, he
was unaware of the full extent of Martin and Harris’s scheme, and he did not actually
create any of the falsified loan documents.
We have stated that “the culpability of a defendant . . . must depend necessarily on
such factors as the nature of the defendant’s relationship to other participants, the
importance of the defendant’s actions to the success of the venture, and the defendant’s
awareness of the nature and scope of the criminal enterprise.” United States v. Headley,
923 F.2d 1079, 1084 (3d Cir. 1991) (internal quotation marks omitted); see also United
States v. Isaza-Zapata, 148 F.3d 236, 238-39 (3d Cir. 1998) (“[A]pplication [of § 3B1.2]
is heavily dependent on the facts of a particular case, and . . . the reduction is available for
a defendant whose role in the offense makes him substantially less culpable than the
average participant.”) (citing U.S.S.G. § 3B1.2 cmt. 3(C)). Further, “district courts are
allowed broad discretion in applying this section, and their rulings are left largely
undisturbed by the courts of appeal.” Isaza-Zapata, 148 F.3d at 238.
The District Court concluded that Wiseman was not a minor participant, and his
argument here fails to establish that he was “substantially less culpable than the average
participant.” But for the assistance provided by Wiseman, Martin and Harris would have
been unable to obtain the loans that they did from Guaranty and National City banks.

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Wiseman argues that he was not the loan processor on any of the loans, that he4
was the underwriter on only one of the loans, and that he was the loan officer on only one
of the loans. He claims that “the procedures of loan originating, processing and
underwriting . . . did not depend on Wiseman and Wiseman alone.” Rather, Wiseman
argues that because his approval was always subordinate to others, which he refers to as a
system of “checks and balances,” he could not have occupied a position of trust.
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Even if Wiseman was unaware of the extent of the full fraud committed by Martin and
Harris, he played an exceedingly instrumental role in processing, underwriting, and
approving the loans necessary to the portions of the fraud in which he did participate.
Wiseman, of course, was charged, convicted, and sentenced only in connection with the
loans in which he was directly involved. We therefore cannot say that the District Court
committed clear error in determining that Wiseman was not entitled to a reduction in his
offense level for playing a minor role.
Third, Wiseman argues that the District Court should not have imposed a two-level
enhancement in his guideline range for the abuse of a “position of trust” pursuant to
U.S.S.G. § 3B1.3. He claims that he did not occupy a position of trust. Rather, Wiseman
explains that it was his subordinate employees who were responsible for the loan approval
process and not Wiseman personally.4
We have identified three factors for determining whether a position of trust exists:
“(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-a-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)

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(citing United States v. Iannone, 184 F.3d 214, 223 (3d Cir. 1999)); see also U.S.S.G. §
3B1.3 cmt. 1 (noting that a position of trust is “characterized by professional or
managerial discretion”). Further, we have said that “the primary trait that distinguishes a
person in a position of trust from one who is not is the extent to which the position
provides the freedom to commit a difficult-to-detect wrong.” United States v. Craddock,
993 F.2d 338, 341 (3d Cir. 1993) (internal quotations omitted).
Wiseman’s argument that the fraud was actually the result of either the
carelessness of his subordinate employees or the ineffective oversight of his superiors is
unconvincing. Although persons holding positions of trust are usually “subject to
significantly less supervision,” the guidelines do not require an employee be subject to no
supervision whatsoever. U.S.S.G. § 3B1.3 cmt. 1. Although Wiseman may have been
inadequately supervised and he may have had an inappropriate degree of independence,
this does not mean that he was not in a position of trust. Nor does it follow that Wiseman
could not occupy a position of trust simply because he had subordinate employees
working on several aspects of the loan applications.
The record before us contains overwhelming evidence that Wiseman occupied a
position of trust at both Guaranty and National City banks. As an underwriter, Wiseman
was charged with protecting the interests of the bank and establishing the first line of
defense against fraud. When he became a branch manager at Guaranty, he was permitted
to both originate and underwrite his own loans. Further, Wiseman was permitted to hire

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We do not comment on whether Wiseman abused his position of trust because5
Wiseman has not placed that issue before this Court.
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his own employees when he became the underwriting manager at National City, a
position in which he appears to have been unsupervised. We have held on several
occasions that position-of-trust enhancements were appropriate for bank executives and
branch managers who possessed the authority to approve loan applications. See, e.g.,
United States v. McMillen, 917 F.2d 773, 776 (3d Cir. 1990); United States v. Lieberman,
971 F.2d 989, 993 (3d Cir. 1992); see also U.S.S.G. § 3B1.3 cmt. 1 (noting that “this
adjustment . . . applies in the case of . . . a bank executive’s fraudulent loan scheme. . . .”).
Because we are confident that Wiseman occupied a position of trust within the meaning
of U.S.S.G. § 3B1.3, we conclude that the two-level enhancement was within the
discretion of the District Court.5
Finally, Wiseman argues that the sentence imposed by the District Court was
unreasonable. His contention, however, rests exclusively on his argument that the District
Court erred in its (1) calculation of loss, resulting in a two-level sentencing guideline
enhancement; (2) denial of a two-level sentencing guideline reduction for a minor role in
the offense; and (3) finding that Wiseman occupied a position of trust, resulting in a two-
level sentencing guideline enhancement. As noted above, none of these claims have
merit. Accordingly, we conclude that Wiseman’s argument that his sentence is
unreasonable is also without merit.

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V.
For the foregoing reasons, we will affirm the District Court in all respects.

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