371 F.3d 1296 (11th Cir. 2004), 03-13032, United States v. Olshan

Docket Nº:03-13032.
Citation:371 F.3d 1296
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jordan P. OLSHAN, Defendant-Appellant.
Case Date:June 03, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1296

371 F.3d 1296 (11th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jordan P. OLSHAN, Defendant-Appellant.

No. 03-13032.

United States Court of Appeals, Eleventh Circuit

June 3, 2004

Page 1297

George W. Andrews, III, White, Dunn & Booker, Augusta S. Dowd, Lange, Simpson, Robinson & Somerville, Birmingham, AL, for Defendant-Appellant.

Sandra J. Stewart, Birmingham, AL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before DUBINA and CARNES, Circuit Judges, and MILLS [*], District Judge.

CARNES, Circuit Judge:

Jordan P. Olshan appeals his 90-month sentence for mail fraud and for filing a false income tax return, in violation of 18 U.S.C. § 1341 and 26 U.S.C. § 7206(1), respectively. He contends that he should not have received the two-level mass-marketing enhancement under U.S.S.G. § 2F1.1(b)(3) (2000), because he solicited only those within his existing client base and not the general public. He also contends that application of the two-level mass-marketing enhancement amounted to impermissible double counting because it overlapped with the enhancement he received for defrauding more than one victim.

Page 1298

I.

Olshan and his family had owned and operated Mortgage Investors, Inc. (MII) for over 60 years. The Birmingham, Alabama company bought, sold, originated, and serviced Alabama mortgages exclusively for the portfolios of its approximately 500 investors. Those investors collectively had around $53 million listed as investments on their accounts.

Between December 1998 and April 2001, in an effort to retain investors, Olshan encouraged clients to invest money with Mortgage Investors through a series of misrepresentations and omissions of material facts. He advised clients that "[their] income was fully protected," that the mortgages were first mortgages made on a 60 percent loan-to-value ratio on single family dwellings, and that the mortgages became the personal property of the investors. In actuality, some of the properties were mortgaged at over 100 percent of their appraised value, were not single family dwellings, and had second or third mortgages, outstanding liens, or no clear title. Further, all of the investors' money was pooled and was often used to pay interest to other investors. Had one major investor "cashed out," Mortgage Investors would have been insolvent. In spite of those dire circumstances, Olshan routinely mailed "state of the company" letters which indicated that the company was a financial success.

In 1998, Olshan's concern about Mortgage Investors' liquidity caused him to develop and carry out a "corporate note scheme." This scheme had four components or purposes: (1) to eliminate cash balances on accounts in order to prevent investors from demanding immediate cash payments; (2) to issue corporate notes to new investors in lieu of mortgage assignments; (3) to entice investors not to demand payment for their cash positions by promising them a higher interest rate on corporate notes than was previously paid; and (4) to disguise the true identity of the corporate notes by assigning them an account number similar to the mortgage numbers normally...

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