United States v. Erik Green

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 2, 2021
• Docket: 19-10314
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 2 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10314

Plaintiff-Appellee, D.C. No. v. 2:11-cr-00468-TLN-3

ERIK HERMANN GREEN, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Argued and Submitted March 16, 2021 San Francisco, California

Before: BERZON, MURGUIA, and CHRISTEN, Circuit Judges.

Defendant Erik Green appeals his conviction and sentence, after remand and

retrial, on three counts of wire fraud involving a mortgage lending scheme. He

argues that the government provided insufficient evidence to prove two of the

counts, the proof at trial fatally varied from his indictment, the district court erred

in calculating restitution, and that the district court’s sentence in his retrial was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. vindictive. We affirm.1

1. We review de novo an order denying a motion for judgment of acquittal

based on insufficiency of the evidence. United States v. Hernandez, 105 F.3d

1330, 1332 (9th Cir. 1997). “There is sufficient evidence to support a conviction

if, ‘viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

There is sufficient evidence in the record to allow a rational juror to

determine that Green “used, or caused to be used, an interstate wire

communication to carry out or attempt to carry out an essential part of” a

fraudulent scheme to obtain two loans from New Century Mortgage. Although the

witness who presented the wires at issue, Roberto Amenta, named Deutsche Bank

as the originator of the transfers, the government provided circumstantial evidence

and testimony that the loan funds came from New Century Mortgage.

The wires themselves included Green’s name and the loan numbers from his

New Century Mortgage loan documents. Cynthia Perez of Placer Title Company

testified that Placer’s summary of deposits into and disbursements from escrow for

1 This case was previously consolidated with United States v. Green, 20- 10194. We now sever the cases for the purpose of disposition.

2 Erik Green’s house purchase indicated that Placer received $655,869.54 and

$161,633.48 in “a wire of loan funds from New Century.” The two wires

transmitted through Deutsche Bank were in those precise amounts. A rational

juror could therefore easily conclude that New Century Mortgage wired the money

through Deutsche Bank.

As the government’s evidence was sufficient for a juror to determine that the

funds at issue were wired by New Century Mortgage, there was no variance from

the indictment. See United States v. Adamson, 291 F.3d 606, 614–15 (9th Cir.

2002).

2. Because Green did not object to the restitution order before the district

court, we review his challenge to the amount of restitution only for plain error.

United States v. Beecroft, 825 F.3d 991, 995 (9th Cir. 2016). “Under plain error

review, ‘an appellate court may, in its discretion, correct an error not raised at trial

only where the appellant demonstrates that (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant’s substantial rights . . . ; and (4) the error seriously affects the fairness,

integrity or public reputation of judicial proceedings.’” United States v. Lopez, 762

F.3d 852, 863 (9th Cir. 2014) (quoting United States v. Marcus, 560 U.S. 258, 262

(2010)).

The district court did not plainly err in calculating restitution. The

3 restitution formula for a direct loan provider can be calculated by taking the unpaid

principal balance on the fraudulently acquired loan and reducing it by the amount

the lender received from resale of the loan. See United States v. Yeung, 672 F.3d

594, 602 (9th Cir. 2012), abrogated on other grounds by Robers v. United States,

572 U.S. 639 (2014); Robers, 572 U.S. at 641, 643. The record shows that the

difference between Green’s unpaid balance to New Century Mortgage and the

sales price of the loans was $118,421.54. “Fluctuations in property values”—and

consequently in the value of property loans on the secondary market—are

foreseeable. Robers, 572 U.S. at 645. Just as “losses in part incurred through a

decline in the value of collateral sold are directly related to an offender’s having

obtained collateralized property through fraud,” id. at 645–46, losses incurred

through a decline in the value of a loan fraudulently obtained are directly related to

the offender’s having obtained the loan—and the house that was collateral for the

loan—through fraud.

It was therefore not plain error for the district court to conclude that New

Century’s loss was proximately caused by Green’s fraud in obtaining the loan.2

3. The district court’s imposition of a 27-month sentence was not vindictive.

Green is not entitled to a presumption of vindictiveness because he received the

2 Green’s suggestion that New Century Mortgage may have chosen to sell his loans at a “discounted price[]” without regard to their market value has no support in the record.

4 same sentence after remand on each count on which he was convicted, and the

same total term of imprisonment, as he did in his first sentencing. United States v.

Horob, 735 F.3d 866, 870 (9th Cir. 2013). Absent a presumption, Green bears the

burden to show actual vindictiveness. Id. at 871.

Green has not made such a showing. There is no evidence that the district

court’s decision to apply a two-level downward adjustment for a minor participant

under U.S.S.G. § 3B1.2, rather than the prior four-level adjustment for a minimal

participant, was retaliatory. Although the evidence of Green’s experience in and

knowledge of the mortgage industry had been in the record in the first trial, the

pertinence of that evidence was heightened once Green introduced his new expert.

Green’s background and emails, which were emphasized to show that he was

aware of the materiality of his misrepresentations, reasonably implicated the

“degree to which [he] understood the scope and structure of the criminal activity”

and “the degree to which [he] participated in planning or organizing,” both relevant

factors in determining the level of the mitigating role adjustment. U.S.S.G.

§ 3B1.2 cmt. n.3(C)(i)–(ii). The district court’s justification for applying a minor

participant adjustment was therefore supported by the record and does not show

vindictiveness.

AFFIRMED.