HILL - 233
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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94-3563
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D. C. Docket No. 92-64-CR-T-25A
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS J. TWITTY; JOHN E. WATSON, a.k.a. Jack
Watson; JOHN P. LARRISON, a.k.a. Jack Larrison;
G. RICHARD LEVERITT,
Defendants-Appellants.
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Appeal from the United States District Court for the
Middle District of Florida
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Before EDMONDSON and BLACK, Circuit Judges, and HILL, Senior Circuit
Judge.
HILL, Senior Circuit Judge:
Appellants were convicted of conspiracy and bank fraud. Two appellants
were also convicted of money laundering. For the following reasons, we affirm
each appellant's conviction and sentence.
I. BACKGROUND
Thomas J. Twitty, John E. Watson, G. Richard Leveritt, and John P.
Larrison were partners in a joint venture to develop a real estate project in
Pinellas County, Florida, called "Hamlin's Landing." The development included
office/commercial space, retail space, a marina, a restaurant, and time-share
condominiums. On March 6, 1985, Twitty and Larrison signed a Real Estate
Mortgage Loan Application and submitted it to Freedom Federal Savings and
Loan Association (Freedom) to obtain financing for the project. The application
stated that "[t]he 42 condominiums must be 50% pre-sold prior to closing with
minimum 10% non-refundable binders."
On April 9, 1985, Twitty submitted a status report to Freedom showing the
names of the "purchasers" of the condominium units. The list showed twenty
contracts in the name of Jewel Roome, ten in the name of Dr. Neil Feldman, and
two in appellant Watson's name. On April 22, 1985, Twitty wrote Freedom
stating:
Thirty-nine (39) out of 42 units are presently contracted
for. The response from our advertising indicates a
strong market for our townhome product from the
financially independently secure as to a viable place to
own and live and do business. The entrepreneur has
shown strong interest of locating home and business to
(sic) together at this location.
On May 2, 1985, Freedom issued a commitment letter in which it agreed
to lend the joint venture money to build Hamlin's Landing, but only if Twitty
and the others promised to meet certain conditions. Chief among the conditions
2
was the pre-sale of twenty-one of the proposed forty-two condominiums in
binding, non-contingent contracts, to bona fide third parties, with ten percent
down payments. Group sales would count only half the number of actual units
sold. Freedom also required that 100% of the sales price on each condominium
be paid to it before Freedom would release its hold on that condominium.
The evidence at trial was that Roome and Feldman were not bona fide
purchasers. Each was induced to sign purchase agreements for condominiums,
but was told that they would never have to close on the contracts. They were told
that the joint venture would arrange, guarantee, and pay all costs associated with
the contracts and any debts Roome and Feldman might incur in making the
down payments on the contracts. They were each rewarded with a discount
toward the purchase of a $120,000 partnership unit in Hamlin's Partners, Ltd.
Sometime in the spring of 1985, Roome consulted with a lawyer who
advised her to rescind her twenty purchase agreements. Her counsel contacted
Watson and demanded that the joint venture rescind Roome's contracts,
threatening to contact Freedom directly. On June 3, 1985, Watson agreed to
rescind Roome's purchases.
On June 5, 1985, Twitty's counsel sent Freedom another status report still
showing Roome contracting to buy twenty condominium units. At another
meeting later in June, Twitty assured Freedom that Roome actually was planning
to close on her twenty condominiums and that she had the financial ability to do
so.
3
Without Roome's twenty contracts, the joint venture did not have enough
pre-sales to satisfy the conditions set by Freedom for the financing. The loan was
set to close in July of 1985. Larrison went to Watson's law firm and offered to
pay people working in the firm to sign the pre-sale contracts. He recruited three
lawyers and the office manager and offered each $5000 to sign on as a straw
purchaser. Each was promised he would not have to incur any expenses, that a
loan would be arranged to pay the down payment, and that he would not have
to close on the unit. Each executed a purchase contract and received a $5000
payment drawn on a bank account controlled by Leveritt. Subsequently, one of
the lawyers refused to go through with the deal, telling Larrison that he thought
the submission of the "purchase agreements" to Freedom would constitute bank
fraud.
Twitty sent Freedom another status report on July 15, 1985, shortly before
the July 31, 1985, scheduled loan closing. By this time, Roome's name was off the
list, but the list included the names of the people from Watson's law firm and
others who had side agreements to sign over the purchase contracts to the
partnership at its direction. Twitty represented that these purchasers had placed
or would place cash deposits, although in fact the defendants, themselves, had
funded the down payments.
On July 31, 1985, the loan closed. Twitty and Larrison signed the Loan
Agreement. They represented to Freedom in the Agreement that the borrowers
had not defaulted under any of the loan documents and that they knew of no
4
event of default that would occur after the passage of time. The Agreement
defined "event of default" to include the borrowers' failure to perform any
condition in the Loan Agreement or other loan documents. Freedom was not
aware of the side agreements and did not know that the partnership had
"fronted" the down payments on the pre-sale contracts.
Freedom required the borrowers to place $1 million of the loan proceeds
in a collateral account at Freedom. The borrowers had agreed to allow Freedom
to hold $620,000 of that amount until the condominium loan of $6.2 million was
repaid. The borrowers were permitted to draw against the remaining $380,000
for cost overruns in the project. For the borrowers to withdraw money from the
account, at least one representative from Freedom had to endorse the request.
In early 1987, only the $620,000 remained in the collateral account. In
February of 1987, Twitty and Larrison went to a branch office of Freedom and
changed the signature card to show that only Twitty and Larrison were required
to sign to withdraw funds from the collateral account. Then, on March 2, 1987,
they withdrew $520,000 from the account, contrary to the terms of their
agreement with Freedom.
Some time later, Twitty, Larrison, Watson, and Leveritt contacted the
straw purchasers and directed them to write letters to Freedom asking to rescind
their purchase contracts. Upon Twitty's authorization, the escrow agent
returned the down payment money to the partnership, not to the alleged
purchasers.
5
After Hamlin's Landing was completed, the borrowers never repaid any
of the $6.2 million they were supposed to recover from the sale of the
condominiums. In 1988, Freedom filed an action to foreclose on the
development. Then Freedom itself went into receivership. The Resolution Trust
Corporation (RTC) took it over, and substituted itself as plaintiff in the
foreclosure action.
On April 10, 1992, a federal grand jury returned a five-count Superseding
Indictment charging Twitty, Watson, Leveritt, and Larrison with making false
statements to a financial institution and bank fraud. After many months, the
defendants mounted a successful challenge to the indictment based upon the
theory that the charges were duplicitous.
On March 31, 1994, the grand jury returned a Second Superseding
Indictment against the defendants. This indictment charged each of the
defendants with one count of conspiracy to make knowingly false statements to
a federally insured financial institution and executing a scheme to defraud a
federally insured institution (18 U.S.C. § 371). The defendants were also charged
with one count of knowingly executing and attempting to execute a scheme to
defraud a financial institution, and obtaining funds from that institution by false
or fraudulent representations (18 U.S.C. §§ 2 and 1344). Finally, Twitty and
Larrison were each charged with five counts of money laundering (18 U.S.C. §§
2 and 1957).
In May of 1992, each of the defendants executed a waiver of his right to a
6
speedy trial. Twitty, Watson, and Larrison each executed an indefinite speedy
trial waiver; Leveritt waived his right to a speedy trial through November 1992.
The trial began May 9, 1994. Each defendant was convicted on all counts. At
sentencing, the district court ordered each to pay restitution.1
Appellants raise many issues on appeal. We find no merit in most of these
issues.2 We address the issues of denial of speedy trial as to Leveritt; sufficiency
of the evidence as to each appellant's intent to defraud; and the sufficiency of the
restitution orders.
II. DISCUSSION
A. Leveritt's Right to Speedy Trial
1. Leveritt's Statutory Right
The Speedy Trial Act requires that the trial of any indicted
defendant commence within seventy days from the later of either the filing date
of the indictment or the date on which the defendant first appears before the
court in which that case is pending. 18 U.S.C. § 3161(c)(1). The period of delay
"resulting from any pretrial motion, from the filing of the motion through the
1
Twitty and Larrison each received eighteen months
incarceration. The district court sentenced Leveritt to three
years probation, and Watson to six months home confinement and
three years probation.
2
These issues include: whether the prosecution violated the
ex post facto clause; whether the prosecution was barred by res
judicata; whether the district court erred in several of its
evidentiary rulings; whether the second superseding indictment was
multiplicitous; whether the jury instruction on the money
laundering counts was erroneous; and whether effective assistance
of counsel was denied. As we find no merit in any of these issues,
we do not discuss them.
7
conclusion of the hearing on, or other prompt disposition of, such motion" is
excluded from the computation of this seventy-day limit.
§ 3161(h)(1)(F). The day that a pretrial motion is filed and the day on which the
motion is decided by the court are excluded from the seventy-day clock. United
States v. Elkins, 795 F.2d 919, 924 n.1 (11th Cir.), cert. denied, 479 U.S. 952
(1986). Delays resulting from co-defendants' motions are excludable time as to
each co-defendant. United States v. Meija, 82 F.3d 1032, 1035 (11th Cir. 1996);
United States v. Sarro, 742 F.2d 1286 (11th Cir. 1984). Section 3161(h)(8)(A) also
excludes any period of delay resulting from a continuance granted by a judge at
the request of a defendant or his counsel if the continuance serves the "ends of
justice." We review a claim under the Speedy Trial Act de novo. United States
v. Vasser, 916 F.2d 624 (11th Cir. 1990), cert. denied 500 U.S. 907 (1991).
Leveritt waived both his statutory and constitutional rights to a speedy
trial through November 1992. The speedy trial clock was set to start running for
him, therefore, on December 1, 1992.3 On November 19, 1992, however, the
government filed a motion for continuance based upon the illness of an essential
witness.4 The government requested a six-week continuance. The district court
granted the continuance the same day, but set no definite length, stating, "[t]he
need for a continuance outweighs the defendants' interest in a speedy trial. This
3
The time prior to Leveritt's waiver is also excludable
because Larrison filed a discovery motion prior to Leveritt's
arraignment, which stopped the speedy-trial clock.
4
The witness had a viral infection in a heart valve.
8
case will be set for trial by future order."
No party requested the court to set a new trial date until May 5, 1993, when
the government moved the court to set trial for a date certain in July or August.
Watson responded, objecting to these dates and requesting that trial not be set
prior to September 20, 1993. Larrison also moved the court to set trial after
September 20, 1993. Both cited the unavailability of their counsel prior to that
time and the need for time to prepare for trial. The district court did not enter
a written order, but neither did it set the trial on the July or August calendars.5
On September 15, 1993, Twitty filed another pretrial motion. This motion
prevented the speedy trial clock from re-starting on September 20. The motion
remained under advisement when, on September 27, 1993, Larrison filed a notice
of supplemental authority in support of his previous motions to dismiss. Because
the court permitted Larrison to file this authority, the government had ten days
to respond, and the motion was under advisement for thirty days after that. See
United States v. Davenport, 935 F.2d 1223, 1228-29 (11th Cir. 1991) (time in which
the court authorizes the filing of supplemental materials is excluded without
regard to its reasonableness because matter not yet under advisement). Thus, the
5
Section 3161(h)(8)(A) excludes any period of delay resulting
from a continuance granted by a judge at the request of a defendant
or his counsel if the continuance serves the "ends of justice."
Although the district court did not cite any reasons for granting
these requests, the grounds cited in the motions plus the court's
grant of a continuance as requested support the inference that the
continued delay was to serve the ends of justice. See Elkins, 795
F.2d at 923 (despite lack of written order on defendant's motion
for continuance, record was sufficient for court to determine that
the continuance was granted in the "ends of justice").
9
speedy trial clock remained stopped from September 15 through November 6,
1993. Since November 6 was a Saturday, the clock was stopped through
Monday, November 8, 1993.
The government concedes that one non-excludable day passed on
November 9, 1993. Then, on November 10, Twitty filed another pretrial motion
stopping the clock again. This motion remained under advisement when the
government filed a motion on December 10 and when Larrison's counsel moved
to withdraw on December 13. Larrison's motion was granted on December 15
and the government's was resolved on December 22.
At this point, the speedy trial clock began to tick again and twenty-two
days elapsed before the government filed an in camera application for an ex parte
order on January 14, 1994. This motion remained under advisement when
Larrison moved to consolidate counts four through eight on January 24, 1994.
Larrison's motion to consolidate was under advisement when Larrison moved for
a continuance on February 15, 1994. Larrison asked for the trial to be continued
to the October 1994 trial calendar. On February 18, 1994, the district court
granted Larrison's motion, finding that because Larrison's counsel was newly-
appointed, the ends of justice served by granting the motion outweighed the
defendants' interest in a speedy trial. The court set the trial for the May 1994
trial term, and the case actually went to trial on May 9, 1994.
The maximum number of non-excludable days which passed between May
10
5, 1993, and the start of Leveritt's trial was thirty-three.6 This leaves thirty-seven
days within the seventy-day limit. The initial continuance, which lasted from
December 1, 1992, until May 5, 1993, substantially exceeds thirty-seven days.
Unless this period of time is excludable,7 Leveritt's statutory right to a speedy
trial was denied.
The district court's order granting the government's motion for a
continuance stated:
Presently, the government seeks a continuance on the
basis of the ill health of an essential witness. Upon
review of the government's motion, the Court finds that
the testimony of Neil T. Feldman is essential. . . and. . .
(he) is unavailable to testify due to serious illness. The
Court therefore finds that the need for continuance
outweighs the defendants' interest in a speedy trial.
This case will be set on a trial calendar by future order.
There is no dispute that the district court made the required determination
that the ends of justice would be served by granting the continuance. Leveritt
argues, however, that the excludable length of the continuance was only the six-
week period requested in the government's motion. If so, the non-excludable
portion of the continuance would exceed the thirty-seven days remaining on the
speedy trial clock.
The district court, however, stated that it would set the trial "by future
6
The government maintains that only 23 non-excludable days
passed, but Leveritt disputes the government's contention that its
filing of an in camera application for an ex parte order stopped
the clock for ten days under § 3161(h)(1)(F). We do not reach this
dispute because its resolution would not affect the outcome.
7
Alternatively, at least all but thirty-seven days must be
excludable time.
11
order." This is an open-ended, not merely a six-week, continuance. An open-
ended continuance may be granted to serve the ends of justice. We have held:
There is no fixed limit to the amount of time that may
be excluded under the ends of justice provision. The
provision excludes "any period of delay resulting from
a continuance. . . ." § 3161(h)(8)(A) (emphasis added).
Vasser, 916 F.2d at 627. If the trial court determines that the "ends of justice"
require the grant of a continuance, and makes the required findings, any delay
is excludable under § 3161(h)(8)(A) of the Speedy Trial Act. See Elkins, 795 F.2d
at 923.
Although "a defendant has no duty to bring himself to trial," Barker v.
Wingo, 407 U.S. 514, 527 (1972), Leveritt could have objected to the delay caused
by the open-ended nature of the continuance, but did not. Cf. Meija, 82 F.3d at
1036 (upholding open-ended continuance and noting defendant could have
objected). The length of the delay resulting from the continuance in this case
does not constitute a per se violation of the Speedy Trial Act, nor is it
unprecedented. See e.g., Davenport, 935 F.2d at 1228-29 (six-month delay
excludable); United States v. Ditammaso, 817 F.2d 201, 210 (2nd Cir. 1987)
(seven-week delay excludable); United States v. Savoca, 739 F.2d 220, 223 (6th
Cir. 1984) (six-month delay excludable).8 Accordingly, we hold that the
8
We note that on May 5 when the government notified the court
that the continuance was no longer necessary and moved to set the
trial for a date certain in July or August, Watson and Larrison
filed motions requesting the court not to set trial before
September 20. Leveritt filed no objection to these motions. We
infer from this series of events that, at the time, Leveritt did
not find the continuance to be unreasonable. In fact, by his
actions he indicated to the court that a further continuance would
12
continuance granted on November 19, 1992, served to exclude all time until May
5, 1993, when the government moved the district court to set the case for trial.
As only a maximum of thirty-three non-excludable days elapsed between
the defendants' indictment and the start of trial, Leveritt's prosecution did not
violate his rights under the Speedy Trial Act.
2. Leveritt's Constitutional Right
Leveritt claims that the delay in this case violates his right under the Sixth
Amendment to a speedy trial. A delay of sufficient length may be a constitutional
violation, even though it is not a violation of the Speedy Trial Act. United States
v. Beard, 41 F.d 1486, 1488 n.6 (11th Cir. 1995). Although compliance with the
Speedy Trial Act does not bar Sixth Amendment speedy trial claims, "it will be
an unusual case in which time limits of the Speedy Trial Act have been met but
the Sixth Amendment right to a speedy trial has been violated." United States v.
Nance, 666 F.2d 353, 361 (11th Cir. 1981), cert. denied, 456 U.S. 918 (1982).
Four factors underlie a constitutional claim of denial of speedy trial: the
length of the delay, the reason for the delay, the defendant's assertion of his or
her right to a speedy trial, and the prejudice to the defendant. Barker, 407 U.S.
at 530. The length of the delay must be "presumptively prejudicial" to trigger an
inquiry into the other three factors. Ringstaff v. Howard, 885 F.2d 1542 (11th
Cir. 1989), cert. denied, 496 U.S. 927 (1990).
In this case, more than two years elapsed between Leveritt's indictment
be reasonable.
13
and the beginning of his trial. This amount of time is sufficient to trigger inquiry
into the other three Barker factors.
Leveritt suggests that the delay in this case was the result of the
government's and the district court's negligent failure to monitor the case. The
record reveals that the delay was the result of: numerous pretrial motions; the
illness of an essential government witness; Larrison's substitution of counsel;9
and scheduling conflicts resulting in the unavailability of certain defense counsel.
There is no suggestion that the delay was due to the bad faith or dilatory purpose
of the government. Nor was the illness of the government's witness under its
control. The unavailability of certain defense counsel cannot be charged to the
government. Therefore, the reasons for the delay in this case do not militate in
favor of finding a violation of the Sixth Amendment. See United States v. Loud
Hawk, 474 U.S. 302, 316 (1986).
Furthermore, Leveritt did not assert his right to a speedy trial in a timely
fashion. He filed his motion to dismiss on the day trial was to begin. The failure
to assert the constitutional right to speedy trial is weighed heavily against the
defendant. Doggett v. United States, 505 U.S. 647, 653 (1992). At no time did
Leveritt object to any continuance granted, nor to co-defendants' motions
requesting additional delay. Neither did he request severance so that he could
proceed to trial more speedily. Only on the day of trial, did Leveritt seek to
escape prosecution based upon the length of these delays. This factor, also, then,
9
Larrison's original counsel was appointed to the state court
bench.
14
militates against finding a constitutional violation.
Finally, Leveritt fails to identify any actual prejudice he suffered from the
delay, relying instead on an argument that the two-year delay presumptively
prejudiced his defense. While it is true that "affirmative proof of particularized
prejudice is not essential to every speedy trial claim," Doggett, 505 U.S. at 655,
where the other factors do not indicate a constitutional violation, a defendant
must show he suffered actual prejudice from the delay. See Loud Hawk, 474 U.S.
at 316. Leveritt's failure to do so does not support his claim.
The government was neither negligent nor purposefully dilatory in this
prosecution. Leveritt failed both to assert his constitutional speedy trial right in
a timely fashion and to identify actual prejudice to his defense from the delay in
this case. Accordingly, we hold the Sixth Amendment was not offended by his
prosecution.
B. Sufficiency of the Evidence
Appellants were convicted of making false representations to Freedom.
The government based its case upon the theory that the representations made to
Freedom concerning pre-sales of the condominiums were false. Paragraph 15(c)
of the Commitment Letter sent by Freedom to Twitty provided:
At least ten (10) days prior to closing, Borrower shall
submit evidence satisfactory to Freedom that Borrower
has entered into binding non-contingent contracts for
sale with bona fide third party purchasers for at least
twenty-one of the condominiums to be built with the
proceeds of this loan. Freedom shall have the right to
review the terms of the contracts. All such contracts for
sale shall be accompanied by a deposit of no less than
15
ten percent (10%) of the sales price, which shall be
placed in an escrow account with Freedom. In meeting
this pre-sale requirement, Borrower will be given credit
for only fifty (50%) of the units purchased by any
person or entity which purchases more than one unit.
The charges against the defendants were based upon the government's
contention that they intentionally defrauded Freedom by deliberately
misrepresenting that they met the terms of this paragraph, i.e., that they, in fact,
had entered into "binding non-contingent contracts for sale with bona fide third
party purchasers for at least twenty-one of the condominiums." The government
sought to prove its case by introducing evidence that appellants recruited and
induced people to execute purported purchase agreements for condominiums by:
(1) either making the down payments for them or guaranteeing loans to them for
that purpose; (2) promising these "purchasers" they would not sustain any out-
of-pocket expenses; (3) giving them cash payments of $5,000 to execute purchase
agreements; (4) promising them they would never have to close on the purchase
agreements; and (5) offering them attractive opportunities to obtain
participation in the enterprise.
Appellants contend that, even if all this evidence is credited, the
government still has not proved its case because the evidence does not establish
the specific intent to defraud required by the statute. Appellants argue that the
evidence was that the pre-sale requirements found in Paragraph 15(c) were
merely aspirational, contained vague terms, and were, in any event, considered
immaterial and waived by Freedom. Furthermore, appellants argue that even
16
under the government's interpretation of Paragraph 15(c), appellants made no
misrepresentations as Freedom could have and should have discovered all the
facts proven at trial by making its own pre-loan inquiries. The sufficiency of the
evidence is an issue of law subject to de novo review. United States v. Smith, 918
F.2d 1551, 1564 (11th Cir. 1990).
At the outset, we reject the argument that, at the most, what appellants did
in this case amounts to non-disclosure, which does not satisfy the statutory
requirements to constitute the offense. What appellants did10 was to represent
to Freedom that they met the conditions set out in Paragraph 15(c). This is more
than non-disclosure. This is an active misrepresentation unless, as appellants
also claim, the conditions set out in Paragraph 15(c) were either so vague that
appellants cannot be said to have violated them, or immaterial to the bank and
waived by it.
10
We also reject Watson's contention that, because the
evidence did not show that he himself actually made false
statements to Freedom, he is not guilty of the offense. Watson was
indicted under 18 U.S.C. § 2, which renders him guilty as a
principal if he aided, abetted, or counseled the commission of the
fraud against Freedom. The government also charged Watson with
conspiracy. The conspiracy charge required the government to prove
that the conspiracy existed, that the defendants knew of the
conspiracy, and that they voluntarily joined in the conspiracy.
United States v. Hernandez, 896 F.2d 513 (11th Cir.), cert. denied,
498 U.S. 858 (1990). All the government need prove to establish
the offenses charged in this case is that Watson knew that some
financial institution was lending money for financing of the
condominium project, knew that down payments were required in
connection with the loans, knew that a scheme of some sort existed
to make it appear the down payments were being made, when, in fact,
they were not, and that he willfully participated in the scheme.
United States v. Brandon , 17 F.3d 409 (1st Cir. 1994). Proof of
participation in each and every act in furtherance of the
conspiracy is not necessary. Id.
17
The crux of appellants' argument as to Paragraph 15(c) is that the term
"bona fide" purchaser was not defined, was interpreted differently by various
Freedom loan officers in their testimony at trial, and, therefore, would not
exclude their purchasers. If their actions amounted to representations to
Freedom that they met the conditions contained in Paragraph 15(c), they argue
this was not a misrepresentation.
Appellants base this argument on their theory that Paragraph 15(c) did not
require the purchasers to put up their own money as a down payment, and could
not require the "purchasers" actually to close on their condominiums. Failure
to close might forfeit the purchasers' deposits, but nothing more. Appellants
conclude from this that they made no misrepresentations to Freedom; with
appellants' straw-purchasers, Freedom was in exactly the same position it would
have been with non-straw-purchasers who originally intended to close and
subsequently changed their minds.
The evidence at trial, however, was that appellants knew that the purpose
of Paragraph 15(c) was to enable Freedom to evaluate the demand for the
condominiums prior to loaning money to appellants. The fact that Freedom
might not have been able to enforce the pre-sale purchase agreements is not
relevant. What mattered to Freedom was that the purported purchasers be
"bona fide" third parties willing to put up a ten percent down payment which
would be forfeited upon breach of the agreement. Such a purchaser indicates
real interest in the development. Pre-sales of more than half of the units offered
18
indicates real demand, and justifies the risk of extending financing to the
developers.11
Appellants entered into a scheme essentially to fabricate the requisite pre-
sales. They deliberately misrepresented their pre-sale purchasers as third parties
who genuinely sought to buy the units contracted for, knowing all the while that
the pre-sales were not sales at all but paper transactions with straw purchasers.
In order to convict appellants of bank fraud, the government was required to
prove that they intended to defraud Freedom. United States v. Moede, 48 F.3d
238, 241 (7th Cir. 1995). There is more than ample record evidence to support
this conclusion.
Finally, appellants argue that under United States v. Brown, 79 F.3d 1550
(11th Cir. 1996), Freedom had a duty to inquire about the "bona fides" of their
purchasers. Appellants cite Brown for the proposition that a party is not
defrauded if a person of ordinary prudence could have confirmed the
representations from readily available external sources. Id. at 1559. They argue
that Freedom could have called any of the pre-sale purchasers listed on the status
reports appellants submitted to it and discovered all the side agreements between
appellants and their purchasers.
Brown does not apply to this case. In Brown, a developer misrepresented
11
If Twitty had been telling the truth about having already
presold thirty-nine of the forty-two condominiums to be built (at
$175,000 per condominium), the developers would have been able to
pay off $6.2 million of the construction loan as soon as they
completed the project.
19
the value and potential rental income of its homes to customers. We noted that
there was no fiduciary duty between these parties such that the developer had an
affirmative duty to disclose alternative pricing structures. Id. We held that
persons of ordinary prudence should not, therefore, have relied upon these
representations.
The circumstances of this case are quite different. Here appellants have
affirmatively misrepresented their compliance with a series of requirements
established by their lender as a condition for the loan. A lender in such a
circumstance is entitled to rely on the representations of the applicant even
though no fiduciary relationship exists. See Pelletier v. Zweifel, 921 F.2d 1465,
1498-99 (11th Cir. 1991). We reject this extension of Brown.
C. The Restitution Issue
The Victim and Witness Protection Act, 18 U.S.C. §§ 3663-3664 authorizes
restitution to victims of crimes and specifically directs a sentencing judge to
consider not only the victim's injury, but also "the financial resources of the
defendant, the financial needs and earning ability of the defendant and the
defendant's dependents, and such other factors as the court deems appropriate."
§ 3664(a); see also United States v. Barnette, 10 F.3d 1553, 1556 (11th Cir.), cert.
denied, 115 S.Ct. 74 (1994). The district court must evaluate the defendant's
financial condition and ability to pay before determining the restitution amount.
United States v. Cobbs, 967 F.2d 1555, 1558 (11th Cir. 1992); United States v.
Stevens, 909 F.2d 431, 435 (11th Cir. 1992). Restitution orders must be "in
20
accordance with sections 3663 and 3664." 18 U.S.C. §3556; Barnette, 10 F.3d at
1556.
Although Watson, Leveritt, and Larrison did not contest their ability to
pay restitution at sentencing, they, along with Twitty, challenge the restitution
orders on appeal. Appellants claim that the restitution orders are defective
because they are not sufficiently supported by findings of fact on the record
regarding each appellant's ability to pay. We review a district court's restitution
order for abuse of discretion. United States v. Husky, 924 F.2d 223, 225 (11th
Cir.), cert. denied, 502 U.S. 833 (1991).
Freedom's loss as a result of appellants' failure to repay their loan
amounted to approximately $15 million dollars, not including interest. The RTC
recovered $3.7 million from the foreclosure sale.12 The district court ordered
each of the defendants to pay restitution of $11.3 million. This calculation of the
amount of the loss was fair to the defendants. See United States v. Norris, 50 F.3d
959 (11th Cir. 1995).
District courts are not obligated to make explicit factual findings of a
defendant's ability to pay restitution if the record provides an adequate basis for
12
We reject appellants' argument that their settlement with
the RTC in which they were absolved from future liability for the
claims which were the subject of the civil suit precludes any
restitution order in this case. "Restitution is not a civil
matter; it is a criminal penalty meant to have strong deterrent and
rehabilitative effect." United States v. Hairston, 888 F.2d 1349,
1355 (11th Cir. 1989). While a victim's receipt of partial
compensation should be considered by the trial court in forming the
restitution order, it does not preclude the criminal court from
ordering restitution. Id.
21
review. United States v. Hairston, 888 F.2d 1349, 1352-53 (11th Cir. 1989); accord
United States v. Lombardo, 35 F.3d 526, 529-30 (11th Cir. 1994). Conversely, "we
will not uphold the district court's exercise of discretion if the record is devoid
of any evidence that the defendant is able to satisfy the restitution order." United
States v. Remillong, 55 F.3d 572, 574-75 (11th Cir. 1995)(quoting United States v.
Patty, 992 F.2d 1045, 1052 (10th Cir. 1993)).13 "If the record is insufficient,
reasons must be assigned." Hairston, 888 F.2d at 1353 (quoting United States v.
Patterson, 837 F.2d 182, 183-84 (5th Cir. 1988)).
Here, the district court did consider the requisite factors before ordering
restitution. Prior to sentencing these defendants, the district court recited that
it had reviewed and considered the information in each defendant's Presentence
Report (PSR), which detailed the amount of the loss sustained by the victim, the
defendant's financial resources, and other factors enumerated in Sections 3663-
3664 as appropriate for the court to consider when imposing restitution.14
Further findings are not required in this case because the record provides
an adequate basis for review of the restitution orders. Remillong, 55 F.3d 574-75.
13
Although Larrison, Leveritt, and Watson did not dispute
their ability to pay restitution, the district court retains an
obligation to consider the defendant's ability to pay before
ordering restitution. Remillong, 55 F.3d at 574.
14
Twitty did contest his ability to pay restitution. A
defendant who disputes his ability to pay restitution bears the
burden of demonstrating his financial resources by a preponderance
of the evidence. 18 U.S.C. § 3664(e); Remillong, 55 F.3d at 575.
He did not, however present any evidence at all of his financial
resources or lack of future ability to pay. As a result, the
district court was entitled to rely on the uncontested facts
contained in Twitty's PSR.
22
The PSRs affirmatively demonstrate that appellants are educated, experienced
in business or the practice of law, and have the likelihood of future employment.15
A defendant claiming that the district judge failed to consider a mandatory
sentencing factor under Sections 3663-3664 must show either that (1) it is not
improbable that the judge failed to consider the mandatory factor and was
influenced thereby, or (2) the judge explicitly repudiated the mandatory factor.
Remillong, 55 F.3d at 576 (citing United States v. Murphy, 28 F.3d 38, 41 (7th Cir.
1994)). The record affirmatively indicates that the district court did consider
appellants' ability to pay. Appellants have not demonstrated that, despite the
district court's announcement that it had considered the information in the PSRs,
it is not improbable that he failed to consider their ability to pay. Therefore, the
district court did not abuse its discretion in ordering restitution. See Barnette,
15
The PSRs contained the following information supporting the
orders of restitution: Watson had practiced law since 1964. His
suspension from the practice of law is only three years. Although
he reported his net worth at $84,689, he has sold his home for
675,000 and paid off all debts. He has liquefiable assets, and the
ability to earn substantial income in the future. He has no
children to support. He received no incarceration.
Leveritt operated his own financial company, preparing tax
returns and providing advice. Although indebted now, he was very
successful for twenty years in business, demonstrating the ability
to earn substantial future income. He has no children to support.
He received no incarceration.
Larrison has also been very successful in business, working as
a consultant and commercial real estate investor. He has owned and
operated several businesses. At the time of sentencing, he had a
small negative monthly cash flow. He received eighteen months
incarceration.
Twitty is a licensed real estate broker who made enough money
to invest millions in real estate ventures. He would be expected
to have that ability in the future. He received eighteen months
incarceration.
23
10 F.3d at 1556.
III. CONCLUSION
We hold that the indefinite continuance granted by the district court
served to exclude sufficient time from the speedy trial clock so that trial in this
case began within the statutory period. We hold there was no Sixth Amendment
violation. We hold that the evidence at trial was sufficient to support the
convictions returned by the jury. Finally, we hold that the district court did not
abuse its discretion in ordering restitution. Accordingly, we
AFFIRM.
24