United States v. Martin

• Decision Date: 30 September 2015
• Docket Number: No. 14–11019.,14–11019.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Nivis MARTIN, a.k.a. Nivis Alvarez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

803 F.3d 581

UNITED STATES of America, Plaintiff–Appellee

v.Nivis MARTIN, a.k.a. Nivis Alvarez, Defendant–Appellant.

No. 14–11019.

United States Court of Appeals, Eleventh Circuit.

Sept. 30, 2015.

Lisa A. Hirsch, Kathleen Mary Salyer, Sean Paul Cronin, Wifredo A. Ferrer, Madeleine R. Shirley, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Gennaro Cariglio, Jr., Gennaro Cariglio Jr., PL, Miami, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:13–cr–20457–JIC–3.

Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.

Opinion

MARCUS, Circuit Judge:

After a trial by jury, Nivis Martin was convicted of multiple counts of bank and wire fraud, sentenced to a prison term of 46 months, and ordered to pay $963,400.47 in restitution. On appeal, Martin challenges her convictions, contending that the district court erred in denying her motion for judgment of acquittal on all counts because the evidence was insufficient. See Fed.R.Crim.P. 29. She also challenges her sentence, arguing that her offense level should have been reduced pursuant to United States Sentencing Guidelines § 3B1.2 to reflect her minimal or minor role in the offense. Finally, she says that the trial court erred when it imposed an order of restitution. After thorough review, we affirm her convictions and sentence, but we vacate the restitution award and remand for a new determination of the victims' losses.

I.

The essential facts are these.¹ On December 13, 2006, Martin and her ex-husband purported to sell their apartment in Miami, Florida, to Martin's father for $495,000 (the “Miami Apartment”).² Her father applied for two mortgage loans from First Franklin Financial Corp. (a division of National City Bank Corp.), totaling $495,000 to fund his purchase. His applications misrepresented just about everything that an underwriter would want to know about him. Among other things, the applications grossly misstated his monthly income (they claimed that he made $13,500 per month when, in reality, he made only $34,168 per year) and bank account balance (they claimed that his bank account balances totaled over $106,000 when his true balance was $484.37). The loan applications also falsely claimed that he earned monthly rental income on another piece of residential property that he owned and continued to live in (a residential home at 10621 SW 27th St. Miami, FL). He submitted a fraudulent lease in support of his loan purporting to show that Martin's childhood friend was renting the property from him. To verify the bogus lease, Martin paid that childhood friend to purchase a cashier's check made payable to Martin's father—to reflect a supposed deposit on the lease.

The applications also omitted several important details. Thus, for example, there was no disclosure that Martin's sister (the buyer's daughter) prepared them; that Martin's sister worked for a mortgage company owned by Martin's ex-husband (a seller); that the buyer and the sellers were related; and that Martin had actually given her father the $1,500 that he paid as an initial deposit. Based on these misrepresentations and omissions, Martin's father obtained the loans. After the sale closed, Martin and her ex-husband paid off their existing mortgage and pocketed about $216,000 in cash, from which they paid Martin's sister $35,064 and her father $64,074.

After the purported sale, First Franklin Financial Corp. sold the two mortgages on the Miami Apartment to a successor lender. Martin and her ex-husband continued to collect rent from a tenant in the Miami Apartment, despite her father's representation that the property would serve as his primary residence. For approximately a year-and-a-half, Martin and her ex-husband also made the mortgage payments for her father (he never made any payments himself). Eventually, however, the loans went into default and the property was sold in a short sale.

Two days after the sham sale of their Miami Apartment to Martin's father, Martin and her ex-husband closed on a residential home in Miami Beach with a price tag of $1,550,000 (the “Beach House”). To fund this purchase, they applied for two mortgage loans from LoanCity, Inc. (a mortgage company that the government failed to establish was a financial institution) totaling that amount. Martin's ex-husband's company prepared the loan applications, which, among other things, grossly misstated Martin's monthly income (they claimed that Martin made $15,500 per month when, in reality, her W–2 reported only $18,400 in income for the year) and bank account balance (they claimed that Martin had a bank account balance that totaled $121,304.84 when, in reality, the total balance in that account was only $100). The mortgages were approved. At the closing, Martin and her ex-husband negotiated a $190,831.70 credit from the seller to cover needed repairs resulting from previous hurricane damage. Notably, Martin and her ex-husband refused to reflect that credit in the closing settlement statement, opting instead to memorialize it only in an addendum that never became part of the loan file and was never reported to the lenders. The credit was then wired to the account of Acqualina Corp., a company opened in Martin's name. Martin would later tell a Special Agent from the United States Secret Service that the transfer to Acqualina Corp. was “possibly to hide something.” Rather than paying for the alleged repairs, Martin wrote three sequential checks to her ex-husband from the Acqualina Corp. account for over $100,000.

The first mortgage on the Beach House was later sold to IndyMac Bank (which was still later acquired by OneWest Bank). The second mortgage was eventually sold to Saxon Mortgage Services, Inc., but that company went out of business and no successor-in-interest was identified at trial. Martin and her ex-husband later defaulted, and the Beach House was also sold in a short sale.

In January 2007, less than a month after he purportedly purchased the Miami Apartment for $495,000, Martin's father bought still another residential property in Miami for $490,000 (the “Miami Property”). He funded that purchase with two mortgage loans obtained from Bear Stearns totaling $488,798.94. Martin's ex-husband again prepared the loan applications, which still again grossly misstated Martin's father's monthly income and bank account balance, and again falsely stated that he earned monthly rental income on another residential property that he owned. The same fictitious rental agreement and deposit check from Martin's childhood friend that were used in connection with the Miami Apartment loan applications were once again used to verify the fraudulent lease. Martin's ex-husband did not disclose that he was the buyer's son-in-law; that the buyer had just bought the Miami Apartment from Martin and him; and that the buyer had taken out mortgage loans for $490,000 less than a month earlier to fund that purchase. Nor was it disclosed that Martin, the buyer's daughter, had issued the required insurance on the property. Each of those facts, if properly disclosed, would have prompted further questions regarding the legitimacy of the transaction. After the closing, Bear Stearns sold the two mortgages on the Miami Property; ultimately, JPMorgan Chase & Co. acquired both of them. Martin's father later defaulted on this loan, too, and the property was sold in a short sale.

Eventually, the Secret Service investigated. That investigation led to the June 2013 indictment of Martin, her ex-husband, her sister, and two other codefendants. Martin was charged in four counts: one count of conspiracy to commit bank and wire fraud, in violation of 18 U.S.C. § 1349 (Count 1); one count of bank fraud, in violation of 18 U.S.C. § 1344 (Count 2); and two counts of wire fraud, in violation of 18 U.S.C. § 1343 (Counts 4 and 5). All of the codefendants entered guilty pleas except Martin, who proceeded to trial. The jury found her guilty as charged on all counts, and the district court later sentenced her to 46 months of imprisonment on each count, to run concurrently, followed by five years of supervised release. It also ordered her to pay $963,400.47 in restitution.

Martin timely appealed to this court.

II.

We start with Martin's challenge to the sufficiency of the evidence supporting her convictions. She argues that the government failed to prove that she had any knowledge of a conspiracy to defraud, or that she made any intentional misrepresentations in the three transactions at issue. Martin also claims that the government failed to demonstrate that she defrauded any financial institutions. We disagree.

We review de novo the denial of a motion for judgment of acquittal, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in favor of the jury's verdict. See Hernandez, 743 F.3d at 814. “[T]he issue is not whether a jury reasonably could have acquitted but whether it reasonably could have found guilt beyond a reasonable doubt.” United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir.2006). We will not overturn a jury's verdict if there is “any reasonable construction of the evidence [that] would have allowed the jury to find the defendant guilty beyond a reasonable doubt.” United States v. Friske, 640 F.3d 1288, 1291 (11th Cir.2011) (internal quotation marks and citation omitted). “The test for sufficiency of the evidence is identical [,] regardless of whether the evidence is direct or circumstantial,” United States v. Mieres–Borges, 919 F.2d 652, 656–57 (11th Cir.1990), but if the government relied on circumstantial evidence, “reasonable inferences, not mere speculation, must support the conviction,” United States v. Mendez, 528 F.3d 811, 814 (11th Cir.2008) (per curiam).

To convict Martin of conspiracy to commit bank and wire fraud under 18 U.S.C. § 1349, the government had to prove beyond a reasonable doubt that (1) two or more persons...