United States v. Nivis Martin

Case: 16-11002 Date Filed: 04/25/2018 Page: 1 of 20

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-11002
________________________

D.C. Docket No. 1:13-cr-20457-JIC-3

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NIVIS MARTIN,
a.k.a. Nivis Alvarez,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(April 25, 2018)

Before JORDAN and JILL PRYOR, Circuit Judges, and REEVES, * District Judge.

JILL PRYOR, Circuit Judge:

*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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This is Nivis Martin’s second appeal relating to her conviction for crimes

arising out of a mortgage fraud scheme in Miami, Florida. In her first appeal,

Martin challenged the district court’s order that she pay nearly $1 million in

restitution to three banks under the Mandatory Victims Restitution Act of 1996

(“MVRA”), 18 U.S.C. § 3663A. We concluded that even though the banks were

not the original lenders and merely purchased the fraudulently procured mortgages

on the secondary market, they still could recover restitution as victims under the

MVRA. We nonetheless remanded for the district court to determine anew the

restitution amounts, taking into account that the successor lenders may have paid

discounted prices to purchase the fraudulently procured mortgages on the

secondary market.

On remand, the government, apparently while preparing to address whether

the successor lenders paid discounted prices to acquire the mortgages, learned that

the facts of the underlying transactions did not support its theories advanced at the

first sentencing hearing about why two of the lenders were victims under the

MVRA. At the restitution hearing on remand, the government contended for the

first time that the Federal Deposit Insurance Corporation (the “FDIC”) was the

proper victim for one property because it had taken over as receiver for the lender

that had purchased the mortgage. Regarding a second property, the government

claimed, again for the first time, that Bank of America Home Loans (“Bank of

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America”) was a victim, not because it purchased the loan from the original lender,

but because it acquired the original lender through a corporate merger. The district

court accepted the government’s new arguments and entered a new restitution

award, determining that the FDIC and Bank of America were victims under the

MVRA.

Martin now challenges the district court’s determination that the FDIC and

Bank of America were victims under the MVRA. She also challenges the district

court’s recalculation of the restitution amounts, arguing that the government again

failed to present evidence regarding the amounts paid by the purported victims to

purchase the fraudulently procured mortgages. After careful review, we affirm the

district court’s order in part and remand with limited instructions to correct a minor

mathematical error regarding Bank of America’s restitution award.

I. BACKGROUND

A. The Fraudulent Scheme

Martin’s mortgage fraud scheme involved three properties in Miami, but

only two of those properties are relevant for purposes of restitution in this appeal.1

The first property was an apartment that Martin and her ex-husband owned (the

“Miami Apartment”), which they purported to sell to Martin’s father for $495,000.

1
The bank that owned the mortgages on the third property declined any restitution after
we remanded this case following Martin’s first appeal. As a result, the government decided not
to pursue any restitution related to that property. The details surrounding that property are
therefore irrelevant to our decision here.
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To finance the purchase, Martin’s father applied to First Franklin Corp. (“First

Franklin”) for two mortgages totaling the full purchase price. In his mortgage

application, Martin’s father lied about his assets and monthly income and failed to

disclose that he was related to Martin or that she had given him the money for his

initial deposit. First Franklin approved the application and loaned Martin’s father

the money. After the sale closed, Martin and her ex-husband paid off the previous

mortgage on the property and pocketed about $216,000 in cash. For over a year,

Martin and her ex-husband paid the new mortgages. Then they stopped paying, the

mortgages went into default, and the Miami Apartment was sold at a short sale for

$130,000.

The second property was a residential home in Miami Beach that Martin and

her ex-husband purchased for $1,550,000 (the “Beach House”). They funded the

purchase with two mortgages from LoanCity, Inc., in the amounts of $1,085,000

and $465,000. LoanCity issued these mortgages as stated income loans, meaning it

did not verify Martin’s and her ex-husband’s incomes. Their mortgage application

contained false information about their monthly income and assets. Based on

Martin and her ex-husband’s misrepresentations, LoanCity approved the

mortgages. Martin and her ex-husband eventually defaulted on the loans, and the

Beach House was sold at a short sale for $710,000.

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Martin was indicted, along with several others, for her role in the fraud. She

was charged with (1) conspiracy to commit bank and wire fraud, (2) bank fraud,

and (3) wire fraud. A jury found her guilty on all counts.

B. The First Sentencing

At sentencing, the government sought imprisonment and a restitution award.

The pre-sentence report (“PSR”) stated that Bank of America was the victim for

the mortgages on the Miami Apartment because, according to the government,

Bank of America was a successor lender that had purchased the mortgages from

First Franklin. The government offered no evidence or testimony to support its

position that First Franklin had sold the mortgages for the Miami Apartment. The

district court nonetheless accepted the government’s assertion that Bank of

America had purchased these mortgages and found that Bank of America was the

victim, awarding it $358,781.12 in restitution. The district court arrived at this

amount by subtracting the short sale purchase price from the outstanding principal

due on the loans. The district court failed to consider whether Bank of America

had purchased the mortgages from First Franklin at a discount.

As for the Beach House mortgages, the PSR noted that the loans had passed

to two different successor lenders: the $1,085,000 mortgage had passed to

OneWest Bank FSB (“OneWest”), while the $465,000 mortgage had passed to

Saxon Mortgage Services, Inc. (“Saxon”). The PSR stated that Saxon no longer

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existed and there was no identifiable successor in interest, so the PSR included in

the restitution amount only the loss attributable to the loan owned by OneWest.

Though it was not clear from the PSR itself, evidence at trial showed that shortly

after LoanCity issued the mortgage, IndyMac Bank FSB (“IndyMac”) purchased

from LoanCity a pool of mortgages, including the $1,085,000 mortgage on the

Beach House. Evidence at trial suggested that IndyMac was acquired by OneWest.

At the sentencing hearing, Martin argued that the government had failed to prove

that OneWest owned the mortgage at the time of the short sale, but the district

court nonetheless found that OneWest was the victim.

The district court awarded OneWest $375,000 in restitution. The district

court calculated the restitution amount by taking $1,085,000—the amount of the

mortgage—and subtracting the proceeds from the Beach House’s short sale. The

district court used the entire amount of the mortgage because, although Martin and

her ex-husband made some payments on this mortgage, they never paid down any

of the principal. Martin and her ex-husband then defaulted on the mortgage, and

the Beach House was sold at a short sale. As with the mortgages on the Miami

Apartment, the district court failed to consider whether IndyMac had purchased the

Beach House mortgage from LoanCity at a discount.

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C. Martin’s First Appeal

Martin appealed her conviction and sentence. We affirmed Martin’s

conviction but vacated the restitution award. United States v. Martin (“Martin I”),

803 F.3d 581, 596 (11th Cir. 2015). We concluded that Bank of America and

OneWest were victims for purposes of restitution because they were “successor

lenders who subsequently purchased the fraudulently procured mortgages and

owned them when the properties were sold in short sales.” Id. at 592. Even

though we agreed with the district court that Bank of America and OneWest were

victims, we disagreed with how the district court calculated their restitution

awards. We directed that “a successor lender’s restitution award should turn on

how much it paid to acquire the mortgage” and that its restitution would “typically

equal the sum that lender paid to acquire the mortgage less the principal payments

it received and the amount it recouped in the short sale.” Id. at 595. We then

remanded because the government had failed to present “evidence regarding the

actual price the successor lenders paid for the mortgages” or “evidence to support a

conclusion that the outstanding principal balances were reasonable estimates of

what the successor lenders paid to acquire the fraudulently obtained loans.” Id. at

596.

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D. Post-Remand Proceedings

On remand, the district court held a hearing on restitution. At the hearing,

the government presented new evidence regarding the ownership of the Miami

Apartment and Beach House mortgages after they were issued by the original

lenders.

As to the mortgages on the Miami Apartment, the government changed its

position, arguing for the first time that First Franklin had never sold the mortgages

and continued to own them at the time of the short sale. The government

explained that “Bank of America never purchased th[ese] loan[s] individually.”

Doc. 244 at 11.2 Instead, according to the government, Bank of America

ultimately obtained these mortgages through its merger with Merrill Lynch, which

was the parent company of First Franklin at the time of the Miami Apartment’s

short sale. The government also noted that at the first sentencing the district court

gave Martin credit for the full $130,000 short sale price for the Miami Apartment.

The government argued that, in recalculating Bank of America’s restitution, the

district court should instead credit only $103,621.83, representing the proceeds that

First Franklin actually received from the short sale. The district court accepted the

government’s arguments and awarded Bank of America $392,434.68 in restitution.

2
All citations in the form “Doc #” refer to the district court docket entries.
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The government similarly changed its position regarding the $1,085,000

Beach House mortgage, arguing for the first time that the victim was not OneWest,

but the FDIC, as receiver for IndyMac. The government submitted as evidence the

FDIC’s victim impact statement, which noted that the FDIC had been appointed as

the receiver for IndyMac and claimed that “[t]he FDIC is the only party entitled to

restitution for losses suffered by the failed insured financial institution.” Doc. 228-

1 at 1. The district court accepted the government’s new argument and again

awarded $375,000 in restitution, but this time in favor of the FDIC rather than

OneWest.

Martin now challenges the district court’s conclusion that Bank of America

and the FDIC qualify as victims under the MVRA. 3 She also argues that the

district court improperly recalculated the restitution amounts owed to these entities

because, despite our instructions in Martin I, the government failed to show the

specific prices that Bank of America and IndyMac paid to purchase the mortgages

from the original lenders.

3
We note that the law of the case doctrine did not prevent the district court from
changing its findings regarding the identity of the victims of Martin’s fraud. “The law of the
case doctrine dictates that an appellate decision is binding in all subsequent proceedings in the
same case unless the presentation of new evidence or an intervening change in the controlling
law dictates a different result, or the appellate decision is clearly erroneous and, if implemented,
would work a manifest injustice.” Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1271
(11th Cir. 2015) (internal quotation marks omitted). Because the government presented new
evidence about the identities of the victims after remand, the district court was not bound by the
law of the case doctrine.
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II. STANDARDS OF REVIEW

We review whether an entity is a victim under the MVRA de novo. Martin

I, 803 F.3d at 593. We review factual findings underlying a restitution order for

clear error. United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007). We

may infer from the district court’s explicit factual findings and conclusions implied

factual findings that are consistent with its judgment. See id. at 1334 (citing

United States v. $242,484.00, 389 F.3d 1149, 1154 (11th Cir. 2004)). A factual

finding is clearly erroneous when even though there is some evidence to support

the finding, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed. Id. at 1330. We review the

amount of restitution ordered for an abuse of discretion. Id.

III. DISCUSSION

A. The District Court Did Not Err in Concluding that Bank of America
and the FDIC Were Victims Under the MVRA.

The MVRA provides that when a district court sentences an individual

convicted of certain crimes, including those for which Martin was convicted, “the

court shall order . . . that the defendant make restitution to the victim of the

offense.” 18 U.S.C. § 3663A(a)(1). “To be considered a ‘victim’ under the

MVRA, an entity must have been ‘directly and proximately harmed as a result of

the commission of the defendant’s offense.’” Martin I, 803 F.3d at 593 (alteration

adopted) (quoting 18 U.S.C. § 3663A(a)(2)). In other words, “a victim must have
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suffered harm, and the defendant must have proximately caused that harm.” Id.

The government bears the burden of proving by a preponderance of the evidence

that a particular entity was a victim of the defendant’s offense. Id. The first issue

we must resolve in this appeal is whether the district court erred in concluding that

Bank of America and the FDIC were victims under the MVRA.

1. The District Court Did Not Err in Concluding that Bank of America
Was a Victim as the Successor in Interest to First Franklin.

During Martin’s initial sentencing, the government’s position was that Bank

of America was the victim of Martin’s fraud because it had purchased the Miami

Apartment mortgages from First Franklin and was therefore a successor lender.

After we remanded in Martin I, however, the government adopted a new theory. It

argued that Bank of America was the victim because First Franklin owned the

Miami Apartment mortgages at the time of the short sale and incurred a loss as a

result of the short sale, and Bank of America became the successor in interest to

that loss when it acquired Merrill Lynch, First Franklin’s parent company.

Martin does not dispute that Bank of America acquired First Franklin when

it purchased Merrill Lynch. Instead, she argues that the government failed to show

that First Franklin suffered a loss to which Bank of America could have become

the successor in interest. According to Martin, the government failed to show that

First Franklin suffered a loss at all because it offered insufficient proof that First

Franklin continued to own the Miami Apartment mortgages at the time of the short
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sale. 4 The district court rejected this argument. Implicit in its entry of a restitution

award in favor of Bank of America was a finding that First Franklin never sold the

mortgages and continued to own them when the property was sold at the short sale.

See Robertson, 493 F.3d at 1334. Had the district court not implicitly made this

finding, there would have been no basis for concluding that Bank of America was a

victim because it would have had no loss to inherit from First Franklin.

During the restitution hearing, the government attempted to prove that First

Franklin continued to own the Miami Apartment mortgages at the time of the short

sale by offering the testimony of Mary Davids, a mortgage resolution associate for

Bank of America. Some of Davids’s testimony was imprecise and suggested that

she lacked direct knowledge of whether First Franklin sold the mortgages. For

example, when Davids was initially asked if First Franklin ever sold the

mortgages, she answered “[n]ot to my knowledge, no.” Doc. 244 at 39. But then

when she was asked during cross examination if she knew whether First Franklin

sold the Miami Apartment mortgages as part of an asset-backed security, she

answered, “I don’t know.” Id. at 45. Davids’s testimony also was equivocal

4
In addition to arguing that the government offered insufficient proof, Martin also relies
on the trial testimony of Gelcys Falcon, a former underwriter for First Franklin, who testified
that First Franklin issued subprime loans that were then packaged and sold to private investors.
But Falcon provided only general testimony about First Franklin’s subprime loan practices. She
did not know whether First Franklin sold all of its loans, nor did she testify more specifically
about whether First Franklin sold the Miami Apartment mortgages. Thus, Falcon’s trial
testimony fails to show that First Franklin sold the Miami Apartment mortgages before the short
sale occurred.
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regarding Bank of America’s role with respect to the mortgages. When Martin’s

counsel asked Davids if she knew whether Bank of America owned the mortgages

or merely serviced them, she answered only that she knew Bank of America was

the servicer. And when Martin’s counsel asked Davids whether she could testify

that Bank of America actually owned the mortgages, she responded that she

“didn’t review that information.” Id. at 46.

Even if Davids’s testimony failed to provide direct evidence that First

Franklin never sold the mortgages, however, it was at least sufficient for the

district court to draw that inference. First, Davids clarified late in her testimony, in

response to questioning by Martin’s counsel, that her review would have revealed

if First Franklin sold the mortgages before the short sale:

Q. [D]id you review all the records necessary for you to say one
way or the other whether or not First Franklin or anyone else re-sold
this loan as part of an asset-backed security?

A. Yes, I would be able to determine that based on my review,
because based on my servicing records, it reflects all the history of the
loan, which is why I’m able to review and produce the short-sale
documents . . . .

Id. at 48. From the fact that Davids’s records included the short sale documents,

the district court reasonably could have inferred that First Franklin never sold the

mortgages. Second, Davids testified that First Franklin received the proceeds from

the Miami Apartment’s short sale, which suggested that First Franklin was either

the owner or the servicer of those mortgages when the short sale occurred. Given
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Davids’s repeated testimony that Home Loan Services—another entity acquired by

Bank of America—serviced the Miami Apartment mortgages, the district court

reasonably could have inferred that First Franklin must have been the owner rather

than the servicer of the mortgages. Because Davids’s testimony was sufficient to

support these inferences, we cannot conclude that the district court clearly erred in

finding that First Franklin continued to own the Miami Apartment mortgages when

the short sale occurred.

We reiterate that Martin challenges only whether First Franklin suffered a

loss in the first place. She does not dispute that Bank of America acquired First

Franklin via its merger with Merrill Lynch, nor does she dispute that an acquiring

corporation inherits the losses of its target corporation, making the successor a

victim for purposes of restitution. Because Martin raises no argument that

successors in interest are not entitled to restitution owed to their predecessors, we

assume, without deciding, that they may indeed recover their predecessors’ losses

through restitution. We therefore affirm the district court’s conclusion that Bank

of America was entitled to restitution under the MVRA as a victim of Martin’s

fraud.

2. The District Court Did Not Err in Concluding that the FDIC Was a
Victim as the Receiver for IndyMac.

Martin also contends that the FDIC was not a victim of her fraud because it

was merely appointed as the receiver for IndyMac upon the bank’s failure. In
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Martin’s view, a receiver cannot count as a victim because a receiver is obligated

to distribute any money recovered from a restitution award to the failed

institution’s former depositors, creditors, and shareholders. In other words,

according to Martin, a receiver is simply a pass-through entity, while the failed

institution is the true victim.

We disagree. When the FDIC acts as a receiver for a failed bank “it steps

into the shoes of the failed institution and takes possession of both the assets and

the liabilities.” Vernon v. FDIC, 981 F.2d 1230, 1234 (11th Cir. 1993). If

IndyMac had not failed and had been awarded restitution payments from Martin, it

could have used the proceeds of those payments to fund the bank’s deposits, pay

off its bills, or return capital to its shareholders. The FDIC assumed these same

rights and responsibilities when it was appointed as receiver. See 12 U.S.C.

§ 1821(d)(2)(A)(i) (providing that as a receiver the FDIC succeeds to “all rights,

titles, powers, and privileges of the insured depository institution”). Because the

FDIC stepped into IndyMac’s shoes upon the bank’s failure, the district court did

not err in concluding that the FDIC was the victim of the loss on the Beach House

mortgage. See United States v. Phaneuf, 91 F.3d 255, 265 (1st Cir. 1996) (“Given

that the FDIC steps into the shoes of a failed bank, we see no reason why the

probation department should not substitute the FDIC for the failed bank as the

victim of Phaneuf’s fraud.” (internal quotation marks and citation omitted)).

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B. The District Court Did Not Abuse its Discretion in Calculating the
Amounts of the Restitution Awards.

Martin contends that, even if Bank of America and the FDIC were indeed

victims under the MVRA, the district court abused its discretion in calculating the

amount of restitution owed to each of these entities. We will address each of the

district court’s calculations in turn.

1. The District Court Did Not Abuse Its Discretion in Calculating Bank
of America’s Restitution Award.

Martin first challenges the district court’s calculation of Bank of America’s

restitution award. She argues that the district court failed to adhere to our

instructions in Martin I because it failed to account for the amount that Bank of

America paid First Franklin in exchange for the Miami Apartment mortgages.

Martin notes that the district court calculated Bank of America’s restitution based

solely on the outstanding principal due on the Miami Apartment, just as it had done

during the first sentencing hearing.

Martin’s argument fails because, despite the position taken by the

government during the first sentencing hearing, the evidence at the second hearing

showed that Bank of America never purchased the Miami Apartment mortgages

from First Franklin. On remand, the government changed its theory and instead

showed that Bank of America was a victim because it inherited the loss suffered by

First Franklin when it acquired Merrill Lynch, which was First Franklin’s parent

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company. If Bank of America had purchased the Miami Apartment loans from

First Franklin on the secondary market, then the district court would have had to

consider how much Bank of America paid First Franklin for the loans. See Martin

I, 803 F.3d at 595 (“[A] successor lender’s restitution award should turn on how

much it paid to acquire the mortgage.”). But our decision in Martin I was silent

regarding the proof of loss necessary when the fraudulently procured loan is

acquired through a corporate merger rather than on the secondary market. Martin

argues that the government’s evidence was insufficient because it offered “no

record testimony about the financial details surrounding the merger[]” of Merrill

Lynch into Bank of America. Appellant’s Br. at 16. Given the complexities of

such a merger and its size relative to the mortgages at issue, however, we cannot

conclude that the government was required to show the specific role the Miami

Apartment mortgages played in the merger. See United States v. Ritchie, 858 F.3d

201, 217 (4th Cir. 2017) (holding that when the victim is the successor in interest

to the loss rather than a successor lender, restitution should be based on the

victim’s “total, actual loss,” irrespective of the “specifics” of the victim’s

acquisition of the original lender).

In sum, the district court did not abuse its discretion in relying solely on the

outstanding balance of the Miami Apartment mortgages in calculating Bank of

America’s restitution award. That is not to say, however, that we necessarily

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would have reached the same conclusion as the district court if we were reviewing

the district court’s decision de novo, or that the type of evidence presented by the

government in this case would be sufficient to prove a victim’s loss in other cases

where the original lender is acquired by a different corporate entity. 5

2. The District Court Did Not Abuse Its Discretion in Calculating the
FDIC’s Restitution Award.

Martin next challenges the $375,000 restitution award in favor of the FDIC.

She argues that the district court erred in calculating the award because it

subtracted the Beach House’s short sale purchase price from the amount of

principal owed on the mortgage. She relies on Martin I to argue that a proper

calculation would have involved the difference between the short sale purchase

price and the amount that IndyMac paid to purchase the mortgage from LoanCity.

She contends that because the government failed to offer any evidence as to the

amount that IndyMac paid to purchase the mortgage, the district court should have

declined to award any restitution to the FDIC at all.

True, in Martin I we counseled that a court generally should calculate

restitution in a mortgage fraud case by using the amount the successor lender paid

5
We note that the district court appears to have made a small error in arithmetic when
calculating Bank of America’s restitution award. According to Davids’s testimony, the unpaid
principal balances for the Miami Apartment mortgages were $396,492.78 and $99,536.73, for a
total of $496,029.51. The amounts recovered as a result of the short sale were $93,621.83 on the
first mortgage and $10,000 on the second mortgage, for a total recovery of $103,621.83.
Subtracting the total amount recovered at the short sale from the total of the unpaid principal
balances yields a difference of $392,407.68. The district court instead awarded $392,434.68.
We remand for the district court to correct this $27 discrepancy.
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to acquire the mortgage. Martin I, 803 F.3d at 595. But we also explained that

when a loan is bundled into a security, it may be difficult to identify with any

precision the proceeds that the lender received for a specific mortgage. Id. at 596.

We acknowledged that a district court may at times award restitution without

evidence about the loan’s actual purchase price because, in some cases, a

“reasonable estimate of the loan’s purchase price . . . may very well be the

outstanding principal balance.” Id. (internal quotation marks omitted).

This is such a case. Here, IndyMac purchased the Beach House mortgage

from LoanCity as part of a bulk acquisition of loans. The underwriting process for

this bulk purchase began roughly two weeks after LoanCity closed on the Beach

House mortgage. IndyMac took possession of that mortgage a mere three months

later. The close temporal proximity between LoanCity’s closing on the Beach

House mortgage and IndyMac’s acquisition of that mortgage suggests that the

mortgage was not part of a package of distressed loans, making it likely that the

loan was sold for something close to face value. This, in turn, means that the

outstanding balance of the Beach House mortgage was a “reasonable estimate” of

the amount that IndyMac paid to purchase it. Even though the government

probably could have presented evidence that more precisely estimated the price at

which IndyMac purchased the Beach House mortgage, we are mindful of the

standard of review that we must apply here. Given the timing of the sale to

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IndyMac, we cannot say that the district court abused its discretion in calculating

the FDIC’s restitution award based on the outstanding balance of the Beach House

mortgage.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court but remand for the

limited purpose of amending Bank of America’s restitution award so that it

correctly totals $392,407.68.

AFFIRMED IN PART and REMANDED IN PART.

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