United States v. Rizk

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50051
Plaintiff-Appellee, D.C. No.
v.  2:07-cr-00755-
LILA MARIE RIZK, DDP-3
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding

Argued and Submitted
August 31, 2011—Pasadena, California

Filed October 19, 2011

Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Michael Patrick McCuskey,
Chief District Judge.*

Opinion by Judge Gould

*The Honorable Michael Patrick McCuskey, Chief District Judge for
the U.S. District Court for Central Illinois, Urbana, sitting by designation.

19185
 UNITED STATES v. RIZK 19189

COUNSEL

Michael N. Friedman, United Defense Group, LLP, Studio
City, California, for the defendant-appellant.

Jeremy D. Matz, Michael J. Raphael, and Monica E. Tait,
United States Attorney’s Office, Los Angeles, California, for
the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Lila Rizk appeals her jury conviction for one count of con-
spiracy in violation of 18 U.S.C. § 371; one count of bank
fraud in violation of 18 U.S.C. § 1344(1); and thirteen counts
of loan fraud in violation of 18 U.S.C. § 1014. Rizk contends
that the district court committed prejudicial error by admitting
two summary charts under Federal Rule of Evidence 1006.
Rizk also contends that there was insufficient evidence to sup-
port each of her convictions. Rizk further contends that the
district court erred in ordering her to pay restitution in the full
amount of the victim lenders’ loss, despite a prior civil settle-
ment with the victim lenders that included a release from lia-
19190 UNITED STATES v. RIZK
bility. We have jurisdiction under 18 U.S.C. § 1291, and we
affirm.

I

A

Lila Rizk was a licensed real estate appraiser based in
Orange County, California. She did business with Mark
Abrams, a mortgage broker, and his business partner Charles
Elliott Fitzgerald, a real estate developer. Between July 2000
and January 2003, Abrams, Fitzgerald, and others associated
with them initiated and carried out a scheme to defraud mort-
gage lenders. Abrams and Fitzgerald purchased homes in
exclusive California communities at or near their true market
values. In the purchase contracts they required sellers and
their agents to keep the purchase prices confidential. Abrams
and Fitzgerald then applied for loans in amounts far greater
than the actual purchase prices. To deceive mortgage lenders
into believing the loans were adequately secured by the prop-
erties, Abrams, Fitzgerald, and their associates made phony
purchase contracts and gained inflated appraisal reports for
the homes. Relying on this false documentation, mortgage
lenders funded and bought loans in amounts exceeding the
homes’ actual purchase prices and market values. As a result,
Abrams and Fitzgerald made, while the defrauded victim
lenders lost, millions of dollars. Losses to these lenders in
total exceeded $40 million.

Rizk actively participated in the mortgage fraud scheme.
The lenders required appraisals before they would approve
home loans. The appraisals generated by Rizk made the
homes appear to be worth much more than their true values.
The lenders relied on Rizk’s inflated appraisals in funding and
buying the loans. In providing the inflated appraisals, Rizk
followed an array of improper and risk-enhancing practices.
Rizk improperly ignored the original sellers’ list prices, often
hundreds of thousands or millions of dollars less than her
 UNITED STATES v. RIZK 19191
appraisals. Rizk did not use genuinely comparable properties.
Rizk used as “comparable” properties homes that were distant
from, differed from, or had sold long before the homes being
appraised. Rizk also used homes, for which she had previ-
ously given inflated appraisals, as “comparable” properties.
Both from the improper acts that she did in fashioning
appraisals, and from her failure to use appropriate practices in
determining market values of comparable properties, there
was abundant evidence that Rizk did not exercise an indepen-
dent professional judgment in making her appraisals for
Abrams and Fitzgerald.

B

Before trial, the government moved in limine to introduce
charts summarizing the properties involved in the scheme.
The charts listed 96 properties in chronological order of the
corresponding loan transactions. The first chart showed the
following data for each property: 1) the actual escrow closing
date and the date reported to the lender; 2) the actual sale
price and the price reported to the lender; 3) the amount of the
loan funded; 4) whether the real estate agents who partici-
pated in the scheme received a commission; 5) if so, how
much; 6) the named appraisers on the appraisals submitted to
the lender; and 7) whether Rizk provided records about the
transaction to the government under subpoena.

The second chart showed the following data for each prop-
erty: 1) the appraisal date; 2) the appraisal value submitted to
the lender; 3) the named appraisers on the appraisals submit-
ted to the lender; and 4) the addresses of comparable proper-
ties used in the appraisal. This chart used color-coding to
show how Rizk used properties she had previously appraised
at inflated values as comparables in later appraisals.

The district court granted the government’s motion, con-
cluding over objection that the charts were admissible under
Federal Rule of Evidence 1006. Rizk and her co-defendants
19192 UNITED STATES v. RIZK
had argued that the charts were overbroad, including proper-
ties not specifically named in the indictment.1 The district
court, however, accepted that the purpose of the charts was to
show the full scope of the fraudulent scheme and that the
indictment “expressly include[d] more than the nine listed
properties.” And so the district court held that the summary
evidence was within the scope of the indictment. The district
court also stated that Rizk and her co-defendants had been
given the underlying documents showing what was described
in the summary charts, and that they had ample time to review
them before trial.

Rizk was a named appraiser in only 39 of the 96 transac-
tions shown on the charts. But at trial the government pre-
sented evidence showing that Rizk had prepared the apprais-
als for all 96 transactions. The summary charts showed that
Rizk had produced records to the government regarding trans-
actions in which she was not a named appraiser. These
records included sketches, notes, emails, and at least one
appraisal matching a submitted appraisal. The government
introduced testimony that later in the scheme, Rizk’s co-
conspirators removed her name from the appraisals and sub-
stituted the names of unwitting appraisers not connected to
the scheme. Her co-conspirators testified that Rizk knew and
was relieved that her name was no longer being used on the
appraisals. And the government showed that Rizk continued
to receive compensation from Abrams and Fitzgerald long
after the submitted appraisals stopped bearing her name.

At trial, Rizk admitted that her appraisals were too high,
but argued that she made them in good faith and that she
lacked knowledge of the conspiracy. Rizk argued that Abrams
exploited her because she was based in Orange County and
1
The overt acts and substantive counts of the indictment identified only
nine specific properties. But the indictment alleged that the defendants
committed the enumerated overt acts, “among others,” in furtherance of
the conspiracy.
 UNITED STATES v. RIZK 19193
“didn’t know” Los Angeles, Beverly Hills, or Bel Air, which
housed the subject properties she appraised. She said that the
only sale price she was given for a property was the falsified,
inflated sale price (not the true sale price kept confidential)
and that she used the price she was given as her starting point.
She said that Abrams gave her the deficient comparable prop-
erties and misrepresented them to her, that she believed
Abrams was credible, and that she did not know she was
using bad comparables. Rizk also contested the government’s
proffer that she had performed the appraisals in all 96 transac-
tions listed on the summary charts. She claimed that for some
properties, Abrams, Fitzgerald, and their associates had pro-
duced the appraisals and forged her name. In short, Rizk’s
defense was that despite her failure to perform the due dili-
gence required of her in making the appraisals, she did not
knowingly participate in the scheme, and lacked the required
intent to support a conviction for conspiracy, bank fraud, and
loan fraud.

From the evidence presented to it, the jury might have
viewed Rizk as a key and knowing participant in a deliberate
fraud, or as an innocent and unknowing dupe used and manip-
ulated by the ringleaders of the fraud. However, the jury did
not believe Rizk’s account. It found her guilty on all counts.

Rizk then filed a motion for acquittal, which the district
court denied. The district court sentenced Rizk to a three-year
prison term, to be followed by a three-year term of supervised
release, and it ordered forfeiture and restitution. Pursuant to
the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A et
seq., the district court ordered restitution in the total amount
of the victims’ loss, $46,515,846. This restitution order did
not account for a prior civil settlement between Rizk and the
victim lenders, in which the victim lenders agreed to release
all claims against Rizk in consideration of her payment of
$967,083.68, which was the limit of her errors and omissions
insurance policy. The district court entered judgment and
Rizk timely appealed.
19194 UNITED STATES v. RIZK
We address in turn Rizk’s contentions on appeal.

II

Rizk challenges the admission of the charts summarizing
the real estate transactions involved in the fraud scheme. First,
she contends that the charts let the government put facts
before the jury without presenting evidence of those facts.
Second, she complains that because the charts cover transac-
tions not specifically referenced in the indictment, they were
“other acts” evidence under Federal Rule of Evidence 404(b).
Third, she asserts that because the “other acts” evidence
admitted under Rule 404(b) in the charts was unfairly prejudi-
cial, this evidence should have been excluded under Federal
Rule of Evidence 403.

A

We review a district court’s decision to admit evidence for
abuse of discretion. Boyd v. City & Cnty. of S.F., 576 F.3d
938, 943 (9th Cir. 2009).

[1] Before addressing the particular challenges that Rizk
makes to the admission of the summary charts under Federal
Rule of Evidence 1006, it is helpful to set forth a clear and
concise statement of the rule and its underlying reason. Rule
1006 provides: “The contents of voluminous writings, record-
ings, or photographs which cannot conveniently be examined
in court may be presented in the form of a chart, summary, or
calculation.” “The purpose of the rule is to allow the use of
summaries when the documents are unmanageable or when
the summaries would be useful to the judge and jury.” Davis
& Cox v. Summa Corp., 751 F.2d 1507, 1516 (9th Cir. 1985),
superseded by statute, 28 U.S.C. § 1961, as recognized in
Northrop Corp. v. Triad Int’l Mktg. S.A., 842 F.2d 1154, 1156
(9th Cir. 1988).

[2] A proponent of summary evidence must establish that
the underlying materials upon which the summary is based (1)
 UNITED STATES v. RIZK 19195
are admissible in evidence and (2) were made available to the
opposing party for inspection. Amarel v. Connell, 102 F.3d
1494, 1516 (9th Cir. 1996). These materials must be admissi-
ble, but need not themselves be admitted into evidence.
United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988).
The availability requirement ensures that the opposing party
has “an opportunity to verify the reliability and accuracy of
the summary prior to trial.” Paddack v. Dave Christensen,
Inc., 745 F.2d 1254, 1261 (9th Cir. 1984).

[3] Here, the district court did not abuse its discretion in
admitting the government’s summary charts under Rule 1006.
The underlying materials for the charts were standard real
estate records that were both admissible in evidence and made
available to Rizk for inspection. Rizk does not argue that the
government did not establish the two requirements for admis-
sibility. Rather, she argues that the government did not pres-
ent evidence supporting the information in the charts, i.e., that
it did not introduce the underlying records at trial.2 But Rizk’s
contention is without merit because Rule 1006 allows pre-
cisely what Rizk labels prejudicial error. Rule 1006 permits
admission of summaries based on voluminous records that
cannot readily be presented in evidence to a jury and compre-
hended. It is essential that the underlying records from which
the summaries are made be admissible in evidence, and avail-
able to the opposing party for inspection, but the underlying
evidence does not itself have to be admitted in evidence and
presented to the jury.
2
Rizk complains that the government did not establish, among other
things, the fair market value of each property listed on the charts. But this
contention—about what the charts did not include—goes to their weight
rather than their admissibility. See United States v. Scholl, 166 F.3d 964,
978 (9th Cir. 1999) (“‘Generally, objections that an exhibit may contain
inaccuracies, ambiguities, or omissions go to the weight and not the
admissibility of the evidence.’ ” (quoting United States v. Keplinger, 776
F.2d 678, 694 (7th Cir. 1985))).
19196 UNITED STATES v. RIZK
B

We review de novo whether a summary chart falls within
the scope of Rule 404(b). United States v. Soliman, 813 F.2d
277, 278 (9th Cir. 1987).3

[4] Rule 404(b) provides that evidence of “other crimes,
wrongs, or acts” is inadmissible to prove character or criminal
propensity but is admissible for other purposes, such as proof
of intent, plan, or knowledge. Fed. R. Evid. 404(b). “This rule
is inapplicable, however, where the evidence the government
seeks to introduce is directly related to, or inextricably inter-
twined with, the crime charged in the indictment.” United
States v. Lillard, 354 F.3d 850, 854 (9th Cir. 2003). Summary
evidence admitted under Rule 1006 may thus be outside Rule
404(b)’s scope. For example, in United States v. Montgomery,
384 F.3d 1050, 1062 (9th Cir.2004), we held that each action
listed in the government’s summary exhibit “was ‘inextrica-
bly intertwined’ with the conspiracy, and therefore not subject
to Rule 404(b), because each occurred within the temporal
scope of the conspiracy and comprised the conspiracy.” See
also Soliman, 813 F.2d at 279 (finding that summary chart
was not “other crimes” evidence). Cf. United States v. Robin-
son, 774 F.2d 261, 264, 276 (8th Cir. 1985) (“The summary
properly included all 105 applicants [rather than the 15 named
in the indictment], because information regarding all of these
individuals was relevant in delineating the enormous scope of
the [loan fraud] scheme.”).

[5] The rule is well established that the government in a
conspiracy case may submit proof on the full scope of the
3
In opposition to the government’s motion in limine, Rizk and her co-
defendants argued that the summary charts were overbroad because they
included properties not specifically named in the indictment. Because
Rizk’s 404(b) argument on appeal is similar in substance to the defen-
dants’ argument below, we treat her 404(b) argument as one raised before
the district court.
 UNITED STATES v. RIZK 19197
conspiracy; it is not limited in its proof to the overt acts
alleged in the indictment. This is consistent with our own
prior precedent and that of other circuits. See, e.g., Montgom-
ery, 384 F.3d at 1061-62; Lillard, 354 F.3d at 854; United
States v. Williams, 989 F.2d 1061, 1070 (9th Cir. 1993) (find-
ing no abuse of discretion where district court admitted evi-
dence of “uncharged transactions” that were “closely linked
to” events charged in drug conspiracy); United States v.
Bonanno, 467 F.2d 14, 17 (9th Cir. 1972) (“One of the
charges in the indictment alleged conspiracy. In conspiracy
prosecutions, the Government has considerable leeway in
offering evidence of other offenses [not charged in the indict-
ment].”); United States v. Janati, 374 F.3d 263, 270 (4th Cir.
2004) (“It is well established that when seeking to prove a
conspiracy, the government is permitted to present evidence
of acts committed in furtherance of the conspiracy even
though they are not all specifically described in the indict-
ment.”); United States v. Powers, 168 F.3d 741, 749 (5th Cir.
1999) (“[W]here a conspiracy is charged, acts that are not
alleged in the indictment may be admissible as part of the
Government’s proof.”); United States v. Thai, 29 F.3d 785,
812 (2d Cir. 1994) (“When the indictment contains a conspir-
acy charge, uncharged acts may be admissible as direct evi-
dence of the conspiracy itself. It is clear the Government may
offer proof of acts not included within the indictment, as long
as they are within the scope of the conspiracy.” (internal cita-
tions and quotation marks omitted)); United States v. Lewis,
759 F.2d 1316, 1344 (8th Cir. 1985) (“[I]n conspiracy cases,
the government is not limited in its proof to establishing the
overt acts specified in the indictment.”); see also United
States v. Gold, 743 F.2d 800, 813 (11th Cir. 1984) (distin-
guishing evidence of “facts different from those alleged in the
indictment” from “facts which, although not specifically men-
tioned in [the overt acts section of] the indictment, are entirely
consistent with its allegations”).

[6] The district court did not abuse its discretion in con-
cluding that the government’s summary charts were within
19198 UNITED STATES v. RIZK
the scope of the indictment. The real estate transactions
shown on the charts were “inextricably intertwined” with the
conspiracy charge and were not “other acts” subject to Rule
404(b). See Lillard, 354 F.3d at 854. Rizk challenges the
charts’ admission because they included transactions not
specified in the indictment and appraisals not bearing her
name. But the indictment alleges a conspiracy. The govern-
ment offered the summary charts to show the full scope of
that conspiracy and as proof that the non-specified transac-
tions were not “other acts” at all—that is, that Rizk had pre-
pared the appraisals for all 96 transactions in furtherance of
the conspiracy.

C

[7] The district court has broad discretion to admit poten-
tially prejudicial evidence under Rule 403, which provides
that “evidence may be excluded if its probative value is sub-
stantially outweighed by the danger of unfair prejudice.”
Boyd, 576 F.3d at 948. We generally review the application
of Rule 403 for abuse of discretion. Id. But where a party did
not object to the district court’s admission on Rule 403
grounds, we review for plain error. United States v. Plunk,
153 F.3d 1011, 1019 n.7 (9th Cir. 1998), overruled on other
grounds by United States v. Hankey, 203 F.3d 1160, 1169 n.7
(9th Cir. 2000). The review for plain error is even more defer-
ential than review for abuse of discretion. “Under plain-error
review, reversal is permitted only when there is (1) error that
is (2) plain, (3) affects substantial rights, and (4) ‘seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.’ ” United States v. Cruz, 554 F.3d 840, 845 (9th
Cir. 2009) (quoting Johnson v. United States, 520 U.S. 461,
467 (1997)). “[I]n view of the inherently fact-specific nature
of the Rule 403 balancing inquiry, and the special deference
to which district courts’ decisions to admit evidence pursuant
to that Rule are entitled, it is the rare exception when a district
court’s decision to admit evidence under Rule 403 constitutes
 UNITED STATES v. RIZK 19199
plain error.” Plunk, 153 F.3d at 1019 n.7 (internal citations
omitted).

The making of rulings on disputed points of evidence is the
bread and butter of trial. It comes up every day in a trial, it
represents a mainstay part of the controversy, and a district
court must generally make rulings quickly and on the spot to
keep the proceedings fair and to move them toward comple-
tion. Also, the district court has discretion in some cases prop-
erly to admit evidence subject to a limiting instruction given
the jury to avoid or lessen any undue prejudice. For such rea-
sons, it is very important that a party objecting to evidence
being admitted give the court the grounds of objection.
Because Rizk did not make a Rule 403 objection before the
district court, we review this challenge to introduction of the
summary charts only for plain error.

Rizk contends on appeal that the district court insufficiently
weighed the prejudicial effect of the summary charts. She
argues that the charts’ comparison of true and inflated sales
prices for the 96 homes was unfairly prejudicial because it
permitted the inference that for each home the appraisal was
fraudulent and Rizk had prepared it, though she was the
named appraiser in less than half of the transactions.

[8] To the extent that Rizk’s Rule 403 argument is predi-
cated on her contention that the summary charts were “other
acts” evidence subject to Rule 404(b), we reject it. Rizk relies
on Huddleston v. United States, 485 U.S. 681, 688 (1988), in
which the Supreme Court addressed the potential prejudicial
effect of Rule 404(b) evidence in relation to Rule 403. But
here, because we hold that the charts were not subject to Rule
404(b), there was no danger that the jury would misuse the so-
called “uncharged other acts” to conclude that Rizk had a
criminal propensity to inflate appraisals generally. The key
danger to Rizk was that the jury would believe the govern-
ment’s proof that Rizk had in fact inflated the appraisals in
19200 UNITED STATES v. RIZK
the 96 listed transactions. There was no Rule 404(b) problem,
and so her Huddleston argument is unavailing.

[9] Even if we view Rizk’s Rule 403 argument as indepen-
dent of her Rule 404(b) contention, we are not persuaded that
she has shown grounds for relief. We have previously rejected
Rule 403 challenges to the admission of summary evidence
that was relevant and not unfairly prejudicial. See, e.g., Mont-
gomery, 384 F.3d at 1062 (explaining that summary exhibit
was relevant because it outlined scope of conspiracy and was
not unfairly prejudicial because limiting instruction was given
and “defendants had notice of the exhibit and an opportunity
to cross-examine”). The same rule and practice has been fol-
lowed in other circuits. See, e.g., United States v. Boesen, 541
F.3d 838, 848-49 (8th Cir. 2008) (holding that defendant suf-
fered no unfair prejudice because charts represented accurate
summaries, “and evidence is not unfairly prejudicial merely
because it tends to prove a defendant’s guilt”); United States
v. Seeling, 622 F.2d 207, 214 (6th Cir. 1980) (rejecting argu-
ment that summaries more prejudicial than probative because
summaries showed 1,409 sales but only 32 mentioned in
indictment).

[10] Applying these principles, we conclude that a jury
rationally could view the summary charts as proof of the
scope of the conspiracy and of Rizk’s broad participation in
it.4 Because the charts supported the government’s theory that
Rizk prepared the appraisals in all 96 transactions, the charts
may have had impact tending to show Rizk’s guilt, but they
4
In her Reply Brief, Rizk frames her objection that the charts exceeded
the indictment’s scope as a relevance challenge based on Federal Rule of
Evidence 401. Rizk has waived this argument because she develops it for
the first time in her Reply Brief and because she did not give Rule 401 as
a ground of objection before the district court. See Jachetta v. United
States, ___ F.3d ___, No. 10-35175, 2011 WL 3250450, at *11 (9th Cir.
Aug. 1, 2011). In any case, in light of our conclusion above, her argument
is unpersuasive. The 96 transactions listed on the charts were relevant to
the scope of the conspiracy and Rizk’s broad participation in it.
 UNITED STATES v. RIZK 19201
were not unfairly prejudicial. See Seeling, 622 F.2d at 214.
Rizk had an opportunity to inspect the documents underlying
the charts, to cross-examine the government witnesses who
prepared them, and to argue to the jury that Rizk did not pre-
pare inflated appraisals in all 96 transactions. See Montgom-
ery, 384 F.3d at 1062. Because the charts’ probative value
was not substantially outweighed by the danger of unfair prej-
udice, the district court did not err, let alone plainly err, in
admitting them.

III

Rizk argues that the evidence at trial was insufficient to
sustain her convictions because the government did not estab-
lish that she had knowledge of the objective of the conspiracy
and that she had the requisite intent to commit bank fraud and
loan fraud. After trial, Rizk moved for a judgment of acquittal
under Federal Rule of Criminal Procedure 29(c), and the dis-
trict court denied her motion.

We review de novo the denial of Rizk’s Rule 29 motion
and her challenge to the sufficiency of the evidence; the stan-
dard to be applied is the same. United States v. Gonzalez-
Diaz, 630 F.3d 1239, 1242 (9th Cir. 2011); United States v.
Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010). The standard
of review is not favorable to Rizk’s appellate claim. We do
not retry the evidence afresh. Instead, with a sufficiency of
evidence challenge, we ask “whether, after viewing the evi-
dence in the light most favorable to the prosecution, any ratio-
nal trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979)). This leads us to consider the elements
of the crimes for which Rizk was convicted, and how a ratio-
nal jury could view the evidence presented thereon.

A

[11] “To prove a conspiracy under 18 U.S.C. § 371, the
government must establish: (1) an agreement to engage in
19202 UNITED STATES v. RIZK
criminal activity, (2) one or more overt acts taken to imple-
ment the agreement, and (3) the requisite intent to commit the
substantive crime.” United States v. Sullivan, 522 F.3d 967,
976 (9th Cir. 2008). “Knowledge of the objective of the con-
spiracy is an essential element.” United States v. Krasovich,
819 F.2d 253, 255 (9th Cir. 1987). “However, the government
need not prove knowledge with direct evidence; circumstan-
tial evidence and the inferences drawn from that evidence can
sustain a conspiracy conviction.” United States v. Wright, 215
F.3d 1020, 1028 (9th Cir. 2000).

[12] Rizk contends that the evidence was insufficient to
establish that she knew of the objective of the conspiracy. We
disagree. Rizk selectively identifies evidence from the record
tending to show her unwitting participation in the scheme. For
example, she points to testimony that her co-conspirators kept
certain information from her related to the fraud. But the gov-
ernment did not have to present direct evidence that Rizk
knew every detail about the conspiracy. See Wright, 215 F.3d
at 1028. The government needed only to present sufficient
evidence from which any rational jury could infer that Rizk
knew the conspiracy’s objective. See id.

[13] The jury heard testimony that Rizk knew her apprais-
als were used to gain loans on properties. Abrams testified to
Rizk’s requests that actual list prices be removed from the
Multiple Listing Service database, and that properties be re-
listed on the database at higher prices, before she issued her
inflated appraisals. Evidence at trial showed that Rizk
appraised homes at or near values the scheme’s leaders asked
for, and that her appraisal values far exceeded homes’ true
market values, often by two to three hundred percent. Finally,
the government presented evidence that Rizk prepared
appraisals to be signed in the name of her co-defendant Scott
Robinson and that later in the scheme, Rizk knew and was
relieved that other appraisers’ names were being fraudulently
substituted in place of her own. From this evidence, viewed
in the light most favorable to the government, a rational jury
 UNITED STATES v. RIZK 19203
could have determined beyond a reasonable doubt that Rizk
had knowledge of the objective of the conspiracy.

B

The essential elements of bank fraud under 18 U.S.C.
§ 1344(1) are: “(1) that the defendant knowingly executed or
attempted to execute a scheme to defraud a financial institu-
tion; (2) that the defendant did so with the intent to defraud;
and (3) that the financial institution was insured by the FDIC
[Federal Deposit Insurance Corporation].” United States v.
Warshak, 631 F.3d 266, 312 (6th Cir. 2010). Intent to defraud
may be established by circumstantial evidence. Sullivan, 522
F.3d at 974 (holding, in mail and wire fraud case, that “the
scheme itself may be probative circumstantial evidence of an
intent to defraud”).

[14] Rizk argues that the government had to prove an addi-
tional element, intent to expose a lender to a risk of loss. She
contends that there was insufficient evidence to sustain her
conviction for bank fraud because the government did not do
so. This circuit “has never adopted a ‘risk of loss’ analysis in
bank fraud cases.” United States v. Wolfswinkel, 44 F.3d 782,
786 (9th Cir. 1995). Here, as in Wolfswinkel, we need not
decide whether risk of loss is an essential element of bank
fraud because “the government offered sufficient evidence at
trial to prove that the conduct for which [Rizk] was convicted
exposed at least one bank to a risk of loss.” Id. Rizk was an
experienced appraiser. Rizk knew that her appraisals were
being used to finance the purchase of properties. In making
her appraisals, Rizk was unduly influenced by the values put
forth by Abrams and Fitzgerald. Rizk did not gain truly com-
parable properties to make her appraisals but instead looked
at properties different in nature or location or time of sale, and
eventually at her own previously inflated appraisals. An inde-
pendent skilled or expert view on market values of the subject
properties was missing in action. The lenders, to their detri-
ment, relied on her appraisals. The victim lenders’ losses from
19204 UNITED STATES v. RIZK
the fraud totaled more than $46 million. Rizk had an exculpa-
tory explanation, that she was duped and used by the fraud’s
ringleaders. But a jury did not have to accept this view. We
conclude that a rational jury could have found beyond a rea-
sonable doubt that Rizk intended to defraud the lenders and
to expose them to a risk of loss.

C

To convict a defendant of loan fraud under 18 U.S.C.
§ 1014, the government must prove that he or she “knowingly
ma[de] any false statement or report, or willfully overvalue[d]
any land, property or security” regarding a loan, to an FDIC-
insured bank, for the purpose of influencing the bank’s
actions. 18 U.S.C. § 1014; see United States v. Wells, 519
U.S. 482, 490 (1997); United States v. Tannehill, 49 F.3d
1049, 1055 (5th Cir. 1995).

United States v. Tannehill illustrates how circumstantial
evidence can establish intentional overvaluation of property.
In that case, the defendant challenged his § 1014 convictions
on the ground that there was insufficient evidence that he
knew his appraisals were false. Tannehill, 49 F.3d at 1055.
The court rejected his argument, concluding that “[t]here was
ample evidence from which a rational juror could have found
that [the defendant] knew that [his] appraisals overvalued the
property.” Id. Evidence cited in support of the court’s conclu-
sion included that the appraisals valued the property at 20 to
30 percent higher than its sale price; that other sales in the
area were poor; that the appraisal discrepancies were too great
to be the product of negligence; and that an experienced
appraiser should have detected the discrepancies. Id. at
1055-56.

[15] Rizk argues that the government did not establish that
she knowingly overvalued the properties or that she knew her
appraisals enabled Abrams to fraudulently obtain loans. But
here, as in Tannehill, there was “ample evidence” to allow a
 UNITED STATES v. RIZK 19205
rational jury to find that Rizk willfully overvalued property.
See 18 U.S.C. § 1014; 49 F.3d at 1055. She overvalued prop-
erties by two to three hundred percent. She used larger homes
and homes in more desirable neighborhoods as comparables,
and she later used her own previously inflated appraisals to
arrive at subsequent inflated values. Rizk’s actions are incon-
sistent with her claim that she made the appraisals in good
faith, and as an experienced appraiser, she should have known
better. See Tannehill, 49 F.3d at 1055-56. In light of our con-
clusion above that there was sufficient evidence that Rizk
knew the conspiracy’s objective, her argument that she did
not know the intended purpose of her appraisals is unavailing.
A rational jury could have determined beyond a reasonable
doubt that Rizk knew the intended purpose was to obtain
loans in furtherance of the conspiracy, and that she prepared
the inflated appraisals for the purpose of influencing the lend-
ers’ actions. See 18 U.S.C. § 1014.

IV

Rizk’s final challenge is to the district court’s restitution
order that she pay $46,515,846 to the victim lenders. She
argues that the order conflicts with a prior civil settlement
before the same district judge. The settlement agreement pro-
vided that, in exchange for Rizk’s payment of $967,083.68,
the policy limit of her errors and omissions insurance policy,
the victim lenders would release all claims against Rizk for
losses they sustained because of her appraisals. Because Rizk
did not raise this issue before the district court, we review
again for plain error. United States v. Van Alstyne, 584 F.3d
803, 819 (9th Cir. 2009).

[16] The Mandatory Victim Restitution Act (“MVRA”)
requires a district court, in sentencing a defendant convicted
of certain offenses, including an offense against property
committed by fraud, see 18 U.S.C. § 3663A(c)(1)(A)(ii), to
order restitution to each victim “in the full amount of each
victim’s losses.” Id. § 3664(f)(1)(A); see id. § 3663A(a)(1);
19206 UNITED STATES v. RIZK
United States v. Edwards, 595 F.3d 1004, 1012-13 (9th Cir.
2010). The MVRA applies even where the victims have
received compensation from another source: “In no case shall
the fact that a victim has received or is entitled to receive
compensation with respect to a loss from insurance or any
other source be considered in determining the amount of resti-
tution.” 18 U.S.C. § 3664(f)(1)(B). If a victim receives com-
pensation for a loss from insurance or any other source, the
MVRA requires the district court to order restitution to “the
person who provided or is obligated to provide compensa-
tion,” but only after all victims have been fully compensated
for their losses. Id. § 3664(j)(1). Finally, the amount of resti-
tution is offset by “any amount later recovered as compensa-
tory damages for the same loss by the victim” in civil
proceedings. Id. § 3664(j)(2); Edwards, 595 F.3d at 1013.

[17] In United States v. Edwards, we rejected a defen-
dant’s contention that a prior bankruptcy settlement precluded
a later criminal restitution order. 595 F.3d at 1013. Our hold-
ing in Edwards applies to prior civil settlements, because
there we affirmed the continued viability of United States v.
Cloud, 872 F.2d 846 (9th Cir. 1989). In Cloud, a defendant
convicted of bank fraud had entered into a prior settlement
agreement with the defrauded bank, and the bank had entered
into a settlement agreement with its insurer. 872 F.2d at 853.
In the agreements, the victims had agreed to release all claims
against the defendant. Id. We concluded that neither the bank
nor the insurer could waive, through settlement, its “right” to
restitution under the Victim and Witness Protection Act
(“VWPA”), the predecessor statute to the MVRA, because a
purpose of criminal restitution is to penalize. Id. at 854. In
Edwards, we concluded that the MVRA does not alter Cloud
and held that “[c]riminal restitution is mandatory under the
MVRA and cannot be waived by a prior civil settlement.” 595
F.3d at 1014; see also United States v. Bearden, 274 F.3d
1031, 1040-41 (6th Cir. 2001) (collecting cases from other
circuits).
 UNITED STATES v. RIZK 19207
[18] Rizk’s argument that her prior civil settlement pre-
cluded the district court’s restitution order is foreclosed by
our decision in Edwards. The MVRA required the district
court to order restitution to the victim lenders. We hold that
the district court did not err in ordering restitution to be paid
to the victim lenders, despite the fact that they had given a
release of all claims against Rizk in the prior civil action.

But the district court did err in ordering Rizk to pay
$46,515,846 to the victim lenders. Because Rizk’s insurer
paid the victim lenders $967,083.68 pursuant to the settlement
agreement, the district court should have ordered Rizk to pay,
first, $45,548,762.32 to the victim lenders, and then,
$967,083.68 to Rizk’s insurer. See 18 U.S.C. § 3664(j)(1).

[19] A district court may not order restitution such that
victims will receive an amount greater than their actual losses;
to do so is plain error. See United States v. Fu Sheng Kuo, 620
F.3d 1158, 1163-66 (9th Cir. 2010). In the MVRA, Congress
provided that an insurer shall receive restitution for compen-
sating a fraud victim, after the victim is made whole. See 18
U.S.C. § 3664(j)(1). Congress also provided that restitution to
a victim shall be reduced by any amount the victim later
recovers in a civil proceeding. See id. § 3664(j)(2). Though
the MVRA seeks to fully compensate victims for their losses,
see id. § 3664(f)(1)(A), these provisions ensure that victims
do not through restitution receive an amount exceeding their
losses.

[20] Under the current restitution order, which is properly
before us on this appeal, the victim lenders will receive
$967,083.68 more than their actual losses, so imposition of
the order in this respect was plain error. We vacate the restitu-
tion order and remand with instructions that the district court
enter a corrected order. The new restitution order shall reduce
the restitution owed to the victim lenders by $967,083.68 and
order that amount paid to Rizk’s insurer only after the victim
lenders have been fully compensated.
19208 UNITED STATES v. RIZK
V

Rizk’s convictions are AFFIRMED on all counts. The dis-
trict court’s restitution order is VACATED and
REMANDED with instructions.