United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
ROBERT E. JONES, District Judge.
This Court must determine the amount of restitution to be paid by defendants Joel Rosabal and Chadwick Amsden in accordance with the Mandatory Victims Restitution Act (MYRA). 18 U.S.C. § 3663A (2012). The restitution amount is $354, 233.74. The defendants are jointly and severally responsible for this sum.
The defendants worked together at a brokerage company where they filed fraudulent mortgage documents with lenders to procure mortgages for customers. The brokerage submitted false information to lenders, including borrowers' incorrect debt statuses and incomes. On March 18, 2010, a grand jury indicted each defendant for twenty-one counts relating to this mortgage fraud conspiracy.
Defendant Rosabal entered into a plea agreement on December 2, 2010. In exchange for his plea of guilty to Count 1, Conspiracy to Commit Mail and Wire Fraud under 18 U.S.C. § 1349, the Government dismissed the other twenty counts. Rosabal also agreed to pay full restitution to the victims of his scheme. On October 14, 2011, Rosabal was sentenced to thirty-three months' imprisonment with five years of supervised release. Defendant Amsden entered into a similar plea agreement on May 11, 2011, and was sentenced to twenty-seven months' imprisonment with five years of supervised release. Amsden's restitution was held jointly and severally with Rosabal.
To prove the restitution amount, the Government solicited information from the victims regarding their losses directly and proximately resulting from the defendants' conspiracy. Only Bank of America, servicer of four of the fraudulently obtained loans,  provided information. The information was in the form of a one-page spreadsheet specifying the investor who owned the loan, the amount for which the loans were purchased, the unpaid principal balance, the unpaid interest, the proceeds from foreclosure sales of the collateral properties, and a mathematical determination of the investors' total losses. The spreadsheet was prepared and signed by Bank of America employee Elizabeth Tooley on February 16, 2012. The figures were largely identical to the evidentiary testimony given by Internal Revenue Service Special Agent Abraham Smith on January 4, 2012.
However, Ms. Tooley's affidavit did not include the appraised value of the real property collateral on the date each victim gained possession. This value was paramount to calculating victims' loss under United States v. Yeung, 672 F.3d 594 (9th Cir. 2012), while the figure used on the spreadsheet, the actual amount paid, was irrelevant. This Court refused to order restitution without the appraised valuation and ordered further investigation on February 7, 2013.
The Government provided the requested information on May 8, 2013, in the form of a chart closely resembling Ms. Tooley's February 2012 affidavit with modified columns to show the appraisal date and amount for each collateral property. The chart did not appear in the form of an affidavit, and on August 12, 2013, this Court again declined to issue an order of restitution absent a sufficiently detailed victim affidavit. See United States v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008). The Government responded by submitting the same chart on October 10, 2013, appended with Ms. Tooley's signature and a statement that she understood that a false statement would subject her to the penalties of perjury.
On October 30, 2013, this Court deferred ruling in anticipation of the Supreme Court's pending decision in Robers v. United States, 134 S.Ct. 1854 (2014). The Robers decision was delivered on May 5, 2014, and abrogated part of the Yeung framework, finding the amount paid for a loan to be the relevant inquiry rather than the appraisal value. Robers, 134 S.Ct. at 1856. In response, the Government reasserted the values within Ms. Tooley's February 2012 affidavit and demanded restitution based on its figures. The defendants continue to contest the evidentiary adequacy of Ms. Tooley's affidavits.
The MYRA provides that restitution involving damage or loss of property requires the return of such property. 18 U.S.C. 3663A(b)(1)(A). However, if returning the property is impracticable or impossible, the victim must be compensated in an amount equal to the value of his loss minus the value of any property returned. 18 U.S.C. 3663A(b)(1)(B)(i); Robers, 134 S.Ct. at 1856. The value of the property returned in the context of a mortgage is "the amount of money the victim received in selling the collateral, not the value of the collateral when the victim received it." Robers, 134 S.Ct. at 1854.
The primary goal of restitution under the MVRA is to make the victim whole. United States v. Carter, 742 F.3d 440 (9th Cir. 2014); see 18 U.S.C. 3663A. Awarding a victim an amount greater than his actual loss constitutes plain error. Yeung, 672 F.3d at 602 (citing United States v. Rizk, 660 F.3d 1125, 1137 (9th Cir. 2011)), abrogated on other grounds by Robers, 134 S.Ct. 1854. In addition, "Congress intended the restitution process to be quick and reasonable, " and district courts are permitted a degree of flexibility in making restitution determinations. United States v. Gordon, 393 F.3d 1044, 1053 (9th Cir. 2004). Despite this flexibility, district courts must establish facts by a preponderance of the evidence, utilizing "only evidence that possesses sufficient indicia of reliability to support its probable accuracy." United States v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008) (quoting United States v. Garcia-Sanchez, 189 F.3d 1143, 1148-49 (9th Cir. 1999)) (internal quotations omitted). Victim affidavits are generally, but not always, sufficient to prove reliability. Waknine, 543 F.3d at 557-58.
I. Restitution ...