NOT FOR PUBLICATION FILED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.
5