United States v. Jeffrey Wallace Edwards , 728 F.3d 1286 ( 2013 )


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  •                Case: 11-15953      Date Filed: 09/06/2013     Page: 1 of 23
    [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    __________________________
    No. 11-15953
    __________________________
    D.C. Docket No. 3:09-cr-00004-RLV-GGB-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JEFFREY WALLACE EDWARDS,
    a.k.a. J.W. Edwards,
    FRONTIER HOLDINGS, INC.,
    Defendants-Appellants.
    __________________________
    Appeals from the United States District Court
    for the Northern District of Georgia
    __________________________
    (September 6, 2013)
    Before PRYOR and COX, Circuit Judges and WALTER, * District Judge.
    COX, Circuit Judge:
    *
    Honorable Donald E. Walter, United States District Judge for the Western District of
    Louisiana, sitting by designation.
    Case: 11-15953      Date Filed: 09/06/2013      Page: 2 of 23
    Jeffrey W. Edwards and Frontier Holdings Inc. 1 (collectively “Defendants”)
    were convicted of wire fraud, mail fraud, and money laundering, all offenses
    arising out of a high yield investment scheme. In the scheme, Edwards solicited
    funds from investors by promising astronomical returns and then used the funds for
    extravagant personal expenditures.          At sentencing, the district court ordered
    Edwards to pay the victims over six million dollars in restitution pursuant to the
    Mandatory Victims Restitution Act. 18 U.S.C. § 3663A. The Defendants appeal
    and contend that the district court erred in the court’s restitution order by: 1) not
    considering Edwards’s financial situation, 2) ordering restitution based on
    dismissed counts, 3) ordering restitution for an unrelated real estate investment
    scheme, and 4) ordering restitution without evidence showing Edwards injured the
    alleged victims.
    I. FACTS AND PROCEDURAL HISTORY
    A. Defendants’ High Yield Investment Scheme
    Edwards found potential victims through investment conferences or by
    referrals from other victim-investors.               Edwards utilized a variety of
    misrepresentations to encourage potential victims to invest in his scheme. He
    1
    Frontier Holdings Inc. is a Georgia corporation. Edwards is the CEO of Frontier
    Holdings and controls its decisions and operations. Edwards offered his high yield investment
    scheme through Frontier Holdings and used several bank accounts belonging to Frontier
    Holdings. While Frontier Holdings was not ordered to pay restitution, the defense makes no
    differentiation between the two defendants and both defendants challenge on appeal all issues.
    2
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    promised victims that the high yield program produced returns ranging from 75%
    to 800%. He also lied about his background. He told one victim that he owned
    five banks. Another was told that he owned the First National Bank of Georgia.
    A number of victims were told that he owned large tracts of land in Georgia and
    handled millions of dollars in investment funds. At other times, Edwards told
    victims that he was an agent of the Federal Reserve and a friend of then-Vice-
    President Dick Cheney.
    Edwards did not explain how the high yield investment program worked, but
    told victims that this was a special investment opportunity reserved for high net
    worth individuals. Despite these restrictions, Edwards assured victims that he
    could allow multiple small investors to pool their money and access these
    investments through his banking connections. At times, Edwards represented that
    the investment worked by depositing money into special high interest Federal
    Reserve accounts. At other times, Edwards asserted that the investment capitalized
    on “fads” at the International Monetary Fund. Despite the high returns, Edwards
    told victims that the high yield program was completely risk-free. According to
    Edwards, the money was only pledged; so, the victims’ money would never leave
    the bank he owned.
    These misrepresentations enticed victims to send the Defendants money.
    Victims were normally asked to wire money directly to the Defendants’ accounts.
    3
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    After receiving the victims’ money, Edwards did not invest it as promised. Rather,
    he used the money for extravagant personal expenditures including houses, cars,
    and cruises. Whenever victims attempted to withdraw money, Edwards assured
    them that the investment was producing returns, but provided excuses for why the
    money was not immediately available.              Eventually, Edwards stopped
    communicating with the victims.
    The Defendants were indicted by a federal grand jury on six counts of mail
    fraud (counts 1-6), twenty counts of wire fraud (counts 7-26), and eleven counts of
    money laundering (counts 27-37). (Dkt. 127.) After the close of evidence at trial,
    the district court granted the Government’s motion to dismiss counts 3, 4, and 5,
    and the Defendants’ motion to dismiss counts 1, 12, 18, and 25. (Dkt. 239 at 1.)
    The court denied the Defendants’ motion to dismiss counts 2, 6, 7-11, 14-17, 19,
    21-24, and 26. The jury convicted the Defendants on two counts of mail fraud
    (counts 2 and 6), seventeen counts of wire fraud (counts 7–11, 13–17, 19–24, and
    26), and eleven counts of money laundering based on a high yield investment
    scheme (counts 27–37). (Dkt. 242, 243.)
    B. The Post-Trial Restitution Order
    The probation officer filed a presentence report proposing Edwards pay
    $6,820,620.05 in restitution to the Defendants’ victims. Edwards objected to the
    presentence report and moved the court to bar consideration of all alleged victims
    4
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    who did not testify at trial. (Dkt. 266.) Particularly relevant to this appeal, the
    report proposed $850,000 in restitution to the Heavenly Abundance Foundation
    owned by Teana Reese [sic] and $1,635,000 in restitution to Camencita Jocson.
    (PSI at ¶ 65.) The proposed restitution for Jocson consisted of $675,000 sent to
    Edwards’s personal account for investment in the high yield program and $960,000
    sent to an account belonging to Edwards’s company, Grandview LLC. Jocson was
    persuaded to send $960,000 to the Grandview account because Edwards told her it
    would be used to earn “rich rewards” through real estate investment. Edwards
    opened the Grandview account on June 21, and Jocson wired the $960,000 five
    days later. Over the next two and a half weeks, Edwards transferred the money
    into his personal account.        Edwards then spent the money on personal
    expenditures, not investments.
    At the sentencing hearing, Edwards objected to restitution for Jocson,
    victims who did not testify, and victims whose related counts were dismissed at
    trial.   Edwards also asked the court to consider his dependents and financial
    situation when calculating restitution. At the conclusion of sentencing, Edwards
    was sentenced to 108 months, (Dkt. 271 at 2,) and Frontier Holdings was placed on
    probation for one year. (Dkt. 272 at 2.) The district court said that a restitution
    order would be entered later.
    5
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    Ninety-one days later, the district court ordered Edwards to pay
    $6,820,620.05 in restitution to various victims. (Dkt. 311.) Frontier Holdings was
    not required to pay restitution. (Dkt. 272 at 2.) Edwards moved to vacate the
    restitution order on four grounds and requested a hearing. (Dkt. 315.) First,
    Edwards argued the court improperly considered facts outside the record in
    determining restitution. Second, he asserted the court should have considered his
    finances in determining restitution.      Third, Edwards argued that the court
    wrongfully transferred the restitution proposed for Reece to the Caldwells,
    Colovin, Freeman, Perry, and Wilson (who were allegedly Reece’s victims).
    Fourth, Edwards argued the court wrongfully ordered restitution for the victims
    whose related counts were dismissed at trial.
    The court denied Edwards’s motion. (Dkt. 333.) The court held that it did
    not need to consider Edwards’s finances to determine the amount of restitution
    and properly ordered restitution for victims whose related counts were dismissed at
    trial. The court also held that the transfer of the $850,000 in restitution from Reece
    to the Caldwells, Colovin, Freeman, Perry, and Wilson was appropriate since
    Edwards never objected to the proposed restitution to Reece in the presentence
    report. No evidence in the record shows why the restitution was changed from
    Reece to these individuals.
    6
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    According to the Government, shortly before sentencing the Government
    learned that Reece was not a victim, but a co-conspirator in the fraud. (Red Br. at
    55.) Allegedly, Reece solicited money from her victims and then transferred it to
    the Defendants. Thus, on the eve of sentencing, the probation officer proposed that
    the district court change the restitution order to prevent Reece from receiving an
    unjust windfall.     These events were never related to the Defendant.          The
    Government concedes that no evidence in the record supports this change in
    restitution. (Red. Br. at 58.)
    II. ISSUES PRESENTED
    The Defendants present ten issues on appeal. After careful consideration of
    the briefs, the record, and with the benefit of oral argument, we conclude that only
    the four issues relating to restitution merit discussion. In addition to the four
    issues, the Defendants contend that the district court erred by: denying a motion to
    depose Dr. Moor; denying a motion to sever counts relating to Dr. Moor; and
    denying a motion for a judgment of acquittal on counts 6, 7, 10, 11, 13, 17, 20, 21,
    23, and 26. We conclude there is no merit in these contentions and do not address
    them further in this opinion.
    Of the restitution four issues, first, the Defendants contend that the district
    court should have considered Edwards’s financial situation to determine the
    amount of restitution. Second, the Defendants argue that the district court erred by
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    granting restitution to victims when the counts related to their injuries were
    dismissed at trial. Third, the Defendants assert that the district court erred by
    ordering restitution to Jocson for losses caused by an unrelated real estate
    investment scheme. Fourth, the Defendants contend that the district court lacked
    sufficient evidence to order restitution for the Caldwells, Colovin, Freeman, Perry,
    and Wilson.
    III. STANDARDS OF REVIEW
    This case implicates two standards of review. “This Court reviews de novo
    the legality of a restitution order, but reviews for clear error the factual findings
    underpinning a restitution order.” United States v. Brown, 
    665 F.3d 1239
    , 1252
    (11th Cir. 2011).
    IV. DISCUSSION
    A district court has authority to order restitution only as authorized by
    statute. The Mandatory Victim Restitution Act (“MVRA”) requires the district
    court to grant restitution to all victims once a defendant is convicted of “any
    offense… in which an identifiable victim or victims has suffered a… pecuniary
    loss.” 18 U.S.C. § 3663A(c)(1)(B); see also United States v. Robertson, 
    493 F.3d 1322
    , 1329 (11th Cir. 2007) (“Under the Restitution Act, defendants convicted of
    wire or mail fraud must make restitution to any ‘victim’ of their offenses.”). To
    8
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    order restitution under the MVRA, courts are required to follow the procedures in
    
    18 U.S.C. § 3664
    . 18 U.S.C. § 3663A(d).
    Both Edwards and Frontier Holdings appeal the restitution order. But, only
    Edwards was ordered to pay restitution and Frontier Holdings makes no argument
    about why it should be allowed to challenge the restitution order. Thus, we
    conclude that Frontier Holdings does not have a sufficient injury for standing to
    challenge the restitution order, and we only address Edwards’s arguments
    challenging the restitution order. See United States v. Hays, 
    515 U.S. 737
    , 742
    (1995) (“The federal courts are under an independent obligation to examine their
    own jurisdiction, and standing is perhaps the most important of the jurisdictional
    doctrines.”).
    A. The district court correctly ignored Edwards’s finances when
    determining the amount of restitution.
    Edwards contends that the district court was required to consider Edwards’s
    financial resources before determining the amount of restitution owed his victims.
    The Government responds that the district court not only was not required to
    consider Edwards’s financial resources, but was prohibited by the MVRA from
    considering his financial resources. Because Edwards’s argument challenges the
    legality of the restitution order, we review the district court’s procedures de novo.
    Brown, 
    665 F.3d at 1252
    .
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    The MVRA creates a two-step process for determining the amount and
    schedule of restitution payments. First, a district court determines “the full amount
    of each victim’s losses… without consideration of the economic circumstances of
    the defendant.” 18 U.S.C. § 3663A(f)(1)(A). At this first stage, the district court
    lacks “any discretion to contemplate the defendant’s financial situation.” United
    States v. Jones, 
    289 F.3d 1260
    , 1265 (11th Cir. 2002).
    Second, after the district court establishes the total amount of restitution
    owed, the district court considers the defendant’s financial resources to create a
    schedule for restitution payments. 18 U.S.C. § 3663A(f)(2). At this second stage,
    the court should consider the defendant’s finances.       However, even then, the
    defendant bears the burden of demonstrating his financial condition, and the court
    can rely on the probation report and need not make independent findings. See
    Jones, 
    289 F.3d at 1266
     (holding that a district court can rely on the probation
    report and is not required to make independent findings regarding the defendant’s
    financial resources).
    In contrast to Edwards’s contention, the MVRA expressly prohibits
    consideration of his financial resources when determining the amount of
    restitution.   Edwards’s reliance on our prior decisions in United States v.
    Satterfield, 
    743 F.2d 827
     (11th Cir. 1984), and United States v. Page, 
    69 F.3d 482
    ,
    493 (11th Cir. 1995), is misplaced. These cases interpret the Victim and Witness
    10
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    Protection Act of 1982 (“VWPA”) which, as we have previously explained, was
    amended in 1996 by the MVRA. United States v. Thayer, 
    204 F.3d 1352
    , 1357
    (11th Cir. 2000). While the VWPA gave the court discretion in determining how
    much restitution to order, the MVRA requires a court to grant the “full amount of
    restitution.”2 
    18 U.S.C. § 3664
    (f)(1)(A); Thayer, 
    204 F.3d at 1357
    .
    Accordingly, we hold that the district court did not err in determining the
    full amount of restitution without considering Edwards’s financial resources.
    B. The district court did not clearly err by ordering restitution to
    Jocson for losses caused by a related scheme.
    Edwards contends that he cannot be required to pay restitution to Jocson for
    the money she transferred to Grandview LLC’s account (the “Grandview
    Transaction”). According to Edwards, this was a separate real estate investment
    transaction unrelated to the scheme charged in the indictment. The Government
    responds that this issue has not been preserved for appeal and, even if preserved,
    that the Grandview Transaction is related to the common scheme.
    We conclude that this issue was properly preserved for appeal. 3 We must
    determine whether the district court clearly erred by finding that the Grandview
    2
    To the extent they require a court to consider a defendant’s financial resources before
    determining the amount of restitution, United States v. Scatterfield and United States v. Page
    have been abrogated by statute.
    3
    Edwards preserved this argument for appeal by objecting during the sentencing hearing.
    At the hearing, Edwards argued that “Ms. Jocson invested into a Grandview LLC, which was a
    real estate development company. Has nothing to do with quote the high yield program that was
    11
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    Transaction was related to the offenses resulting in convictions. We review for
    clear error a district court’s determination that a transaction was sufficiently related
    to an offense resulting in convictions. See United States v. Valladares, 
    544 F.3d 1257
    , 1270 (11th Cir. 2008) (applying clear error review to the district court’s
    determination that an injury was related).
    As a threshold matter, Edwards incorrectly relies on the Supreme Court’s
    decision in United States v. Hughey, 
    495 U.S. 411
     (1990), for the proposition that
    restitution may only be ordered for an offense resulting in conviction. As we have
    previously explained, the enactment of “the MVRA all but eviscerated Hughey
    with respect to crimes involving schemes.” United States v. Dickerson, 
    370 F.3d 1330
    , 1341 (11th Cir. 2004). In Dickerson, we observed that the definition of
    “victim” used for the MVRA was expanded after the Hughey decision to include,
    “in the case of an offense that involves as an element a scheme, conspiracy, or
    pattern of criminal activity, any person directly harmed by the defendant's criminal
    conduct in the course of the scheme, conspiracy, or pattern….” 18 U.S.C. §
    3663A(a)(2). We joined our sister circuits in holding “that by defining ‘victim’
    expansively in scheme-based crimes, Congress partially overrul[ed] Hughey's
    the basis of the indictment… Nothing in the record there is any misrepresentation in connection
    with the Grandview LLC. There is nothing in there that any losses were not just from the
    economic downturn.”
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    restrictive interpretation of the VWPA and expand[ed] district courts' authority to
    grant restitution.” Dickerson, 
    370 F.3d at 1338
     (citations omitted).
    We have repeatedly “rejected attempts to narrow the scope of ‘victim’ under
    the statute.” See Brown, 
    665 F.3d at 1253
    . We reject Edwards’s similar attempts
    in this case. Thus, “when the crime of conviction includes a scheme, conspiracy,
    or pattern of criminal activity as an element of the offense, the court may order
    restitution for acts of related conduct for which the defendant was not convicted.”
    Dickerson, 
    370 F.3d at 1339
    ; see also Brown, 
    665 F.3d at 1252
     (“Courts have
    agreed that, in light of the expanded statutory language, restitution orders for
    conduct closely related to the offense of conviction are appropriate under either §
    3663 or § 3663A(a)(2), in addition to the specific conduct for which the defendant
    was convicted.”).
    Turning to the district court’s decision, we consider whether the district
    court clearly erred by finding that the Grandview Transaction was related to the
    scheme that resulted in convictions. See Dickerson, 
    370 F.3d at
    1339 (citing
    United States v. Hensley, 
    91 F.3d 274
    , 277 (1st Cir. 1996), for the proposition that
    “the outer limits of a VWPA § 3663(a)(2) restitution order encompass all direct
    harm from the criminal conduct of the defendant which was within any scheme,
    conspiracy, or pattern of activity that was an element of any offense of
    conviction.”). Although the record is vague, the district court’s decision is not
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    clearly erroneous. The record shows that Edwards enticed Jocson to transfer
    money into the Grandview account by misrepresenting that he would use the
    money for profitable real estate investments. Instead of using the money to invest
    in real estate, Edwards transferred the money out of the Grandview account and
    into his personal account to be used for personal expenditures.
    Based on this evidence, the district court could find that the Grandview
    Transaction was a related scheme. Like the offenses for which Edwards was
    convicted, he presented a false investment opportunity to Jocson by
    misrepresenting that the money would be invested. As in the scheme resulting in
    convictions, Edwards enticed Jocson to invest by promising profitable returns.
    Additionally, the course of misappropriation is nearly identical to the offenses
    resulting in convictions. Edwards told Jocson to transfer the money into a bank
    account belonging to a company he owned. He then transferred the money into his
    personal account—the same account that held the proceeds of his other fraudulent
    schemes.
    The only significant difference between the transactions resulting in
    convictions and the Grandview Transaction is that in one case Edwards falsely
    promised to invest in various financial instruments and in the other he falsely
    promised to invest in real estate. Edwards’s use of somewhat different lies to
    accomplish both frauds does not show a separate, unrelated scheme or pattern of
    14
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    criminal activity.   In fact, even among the offenses of conviction, Edwards
    routinely used different representations to solicit victims.
    Furthermore, our prior precedent considering whether a scheme was
    sufficiently related for restitution suggests that the Grandview Transaction is
    related. While we do not appear to have defined a test for relatedness, we have
    considered whether the victim and purpose of each scheme were the same, whether
    the schemes involved the same modus operandi, and whether the schemes involved
    common participants. See Valladares, 
    544 F.3d at 1268
    . In Valladares, the
    defendant was convicted of providing pharmacies with prescriptions that the
    defendant obtained by bribing patients and doctors. 
    Id. at 1261
    . The pharmacies
    would then submit fraudulent Medicare claims based on the prescriptions and pay
    the defendant kickbacks. Although not charged in the indictment, the government
    provided evidence that the defendant also operated a scheme of submitting
    fraudulent Medicare claims for medical equipment through her company. 
    Id.
    Even though the two schemes were different both in the type of claims submitted
    for reimbursement and the means used, we held that the district court did not err in
    determining they were related because the schemes involved the same victim,
    purpose, modus operandi, and participants. 
    Id. at 1268
    .
    The same considerations are relevant in this case. See Brown, 
    665 F.3d at 1253
     (using the victim and purpose factors from Vallardares to determine a
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    scheme was related). Jocson was a victim both in the transactions resulting in
    convictions and the Grandview Transaction. The purpose of both transactions was
    to fraudulently obtain funds that Edwards could use for personal expenditures.
    Edwards used the same modus operandi of fraudulently soliciting investments with
    promises of profit, asking investors to transfer money to an account,
    misappropriating the money to his personal account, and spending the money on
    personal expenditures instead of investing it as promised.         Finally, in both
    transactions Edwards was a common participant.
    Accordingly, we hold that the district court did not clearly err by finding the
    Grandview Transaction related to the scheme.
    C. The district court properly found that Edwards owed restitution to
    victims whose related counts were dismissed at trial.
    Edwards contends that the district court erred by ordering restitution to
    victims when the counts related to their injuries were dismissed at trial. Edwards
    seems to assert that since these counts were dismissed, the district court never
    found that Edwards injured these victims. The Government responds that the
    district court did make findings in the restitution order. Edwards fails to note
    which recipients of restitution fall into this category, but does refer to dismissed
    counts 1, 12, 18, and 25—which concern Mr. Hulis, Mr. and Mrs. Holyk, and Ms.
    Lara. The court did not order Edwards to pay Hulis restitution; thus, we only
    consider whether the district court made sufficient findings for the Holyks and
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    Lara. Because this argument challenges the legality of the restitution order, and
    not the factual basis underlying any finding of harm, we review de novo. 4
    In ordering restitution, a district court must make specific findings that the
    alleged victim was harmed by the defendant. United States v. Singletary, 
    649 F.3d 1212
    , 1222 (11th Cir. 2011). Contrary to Edwards’s contention, the district court
    did find that the Holyks and Lara were harmed. In the restitution order, the court
    found that both the Holyks and Lara were victims suffering damages of $75,000
    and $106,000 respectively.
    Furthermore, as already discussed, the lack of a conviction does not
    automatically preclude the district court from finding an injury sufficient to order
    restitution. While a conviction is required to trigger restitution under the MVRA,
    once the defendant is convicted, a “court may order restitution for acts of related
    conduct for which the defendant was not convicted.” Dickerson, 
    370 F.3d at 1339
    .
    Thus, lack of a conviction does not automatically prevent the district court from
    finding an injury sufficient for restitution so long as the injury is related to an
    offense of which the defendant was convicted.
    4
    Because the defendant only challenges the existence of any findings, we do not address
    the factual support for the district court’s findings. See Access Now, Inc. v. Southwest Airlines
    Co., 
    385 F.3d 1324
    , 1330 (11th Cir. 2004) (“[T]he law is by now well settled in this Circuit that
    a legal claim or argument that has not been briefed before the court is deemed abandoned and its
    merits will not be addressed.”).
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    Accordingly, we hold that the district court made sufficient findings to
    support the order that the Holyks and Lara were victims entitled to restitution.
    D. Insufficient evidence supports the restitution order to Reece’s
    Alleged Victims.
    Fourth, Edwards contends that the district court erred by ordering restitution
    to the Caldwells, Colovin, Freeman, Perry, and Wilson (collectively “Reece’s
    Alleged Victims”) because the Government failed to provide any evidence that
    Edwards harmed these individuals. As previously mentioned, the probation officer
    proposed a change in restitution from Reece to Reece’s Alleged Victims on the
    night before sentencing after determining that Reece was a co-conspirator, not a
    victim.   The Government admits that it did not follow proper procedures to
    substantiate restitution for these individuals, but argues the restitution order should
    stand under a plain error standard of review because Edwards failed to preserve
    this argument.
    The Government contends that Edwards failed to preserve this issue for
    appeal because he did not object to the presentence report’s $850,000
    recommended restitution for Reece and did not object to the restitution for Reece’s
    Alleged Victims until after the restitution order was issued. Edwards responds that
    he objected as soon as they were aware of restitution to Reece’s Alleged Victims.
    To preserve an argument for appeal, the argument must be raised at the trial
    court if the party had an opportunity to do so. United States v. Obasohan, 
    73 F.3d 18
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    309, 310 (11th Cir. 1996). In order to explain how Edwards properly preserved
    this argument at the earliest opportunity, we first must recount how the procedure
    in this case deviated from the procedures a court should follow under 
    18 U.S.C. § 3664
    . 5 See 18 U.S.C. § 3663A(d) (providing that an order for restitution should
    follow the procedures in 
    18 U.S.C. § 3664
    ).
    Under 
    18 U.S.C. § 3664
    , the probation officer should provide the court with
    information for a restitution order including “a complete accounting of the losses
    of each victim.” 
    18 U.S.C. § 3664
    (a). The district court should then disclose
    relevant portions of this material to both the defendant and the government. 
    18 U.S.C. § 3664
    (b). If needed, “the court may require additional documentation or
    hear testimony.”        
    18 U.S.C. § 3664
    (d)(4).             If a victim’s losses are still
    unascertainable by ten days before sentencing, the government or the probation
    officer should inform the court. 
    18 U.S.C. § 3664
    (d)(5). The court should then set
    a date for final determination of the victim’s losses no later than 90 days after
    sentencing.6     
    18 U.S.C. § 3664
    (d)(5).            The government bears the burden of
    demonstrating a victim’s loss by a preponderance of the evidence. 
    18 U.S.C. § 3664
    (e).
    5
    This description is provided only to give proper context for our analysis concerning
    whether the issue was preserved. Edwards does not contend on appeal that the district court
    erred by deviating from the procedures in 
    18 U.S.C. § 3664
    .
    6
    Although the statute says that the date for final determination is “not to exceed 90 days
    after sentencing,” the Supreme Court has held that this requirement may be waived in certain
    situations. See Dolan v. United States, 
    130 S.Ct. 2533
    , 2537 (2010).
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    These procedures were not followed in this case as to Reece’s Alleged
    Victims. These alleged victims were not mentioned in the presentence report. In
    the presentence report, the full $850,000 was proposed as restitution to Reece
    directly. Consequently, Edwards received no information about these victims with
    the presentence report information pertaining to restitution.       Furthermore, the
    Government failed to inform the court of the unascertainable losses by ten days
    before sentencing. Although no communication is in the record, the Government
    asserts that the decision to transfer restitution from Reece to Reece’s Alleged
    Victims was not communicated to the court until the day before sentencing and
    was never communicated to Edwards. The Government also admits that it never
    provided any evidence of Reece’s Alleged Victims’ losses at sentencing. Because
    of these procedural mistakes, Edwards first learned of the order requiring
    restitution to Reece’s Alleged Victims when the district court entered the order
    ninety-one days after the sentencing hearing.       Therefore, by objecting to the
    restitution order, Edwards objected at the earliest possible opportunity.
    We reject the Government’s argument that Edwards failed to preserve his
    defense against the transfer of restitution to Reece’s Alleged Victims by not
    objecting to the original proposed restitution to Reece. First, despite the alleged
    connection between the recipients, this restitution is ordered to different
    individuals. Second, the Government’s transfer theory fails because it begs the
    20
    Case: 11-15953      Date Filed: 09/06/2013       Page: 21 of 23
    question by presupposing, without any evidence, that these individuals actually
    were Reece’s victims. The Government essentially argues that by not objecting to
    restitution to Reece, Edwards failed to preserve the opportunity to object to a new
    restitution order to individuals who are not shown by the record to have any
    connection with Edwards, Reece, or this case generally. Stated this way, the flaw
    in the Government’s preservation argument is readily apparent.
    Accordingly, we hold that Edwards preserved this argument for appeal by
    objecting as soon as this restitution order was received.
    Under 
    18 U.S.C. § 3664
    (e) the government must prove that an individual is
    a victim entitled to restitution by a preponderance of the evidence. Because this
    issue addresses the facts underlying a restitution order, we review the district
    court’s decision for clear error. Brown, 
    665 F.3d at 1252
    . Since the Government
    admits that the court had no evidence at the time it ordered restitution to
    demonstrate that Reece’s Alleged Victims were entitled to restitution, we conclude
    that the Government failed to meet its evidentiary burden and that the district court
    clearly erred. 7
    7
    The Government argues that the court did have evidence that the Caldwells invested
    with Reece because it mentioned the restitution award in a separate criminal action brought
    against Reece. However, the court never states that it took judicial notice of that judgment or
    that the judgment provides sufficient evidence to link Edwards to the Caldwells. Thus, this
    finding is not explained “with sufficient clarity to enable this court to adequately perform its
    function on appellate review.” United States v. Huff, 
    609 F.3d 1240
    , 1248 (11th Cir. 2010).
    21
    Case: 11-15953     Date Filed: 09/06/2013    Page: 22 of 23
    Because we hold that the district court erred in ordering restitution to
    Reece’s Alleged Victims, we must determine what remedy is appropriate. Under
    
    28 U.S.C. § 2106
    , this court has broad discretion to grant relief “as may be just
    under the circumstances.” See United States v. Matinez, 
    606 F.3d 1303
    , 1304
    (11th Cir. 2010) (“
    28 U.S.C. § 2106
     unambiguously grants the circuit courts broad
    discretion to fashion an appropriate mandate… [i]ndeed, we cannot imagine how
    the appellate court’s discretion could be framed more broadly.”). We often require
    both the defendant and the government to present all evidence and objections at the
    sentencing hearing. See United States v. Canty, 
    570 F.3d 1251
    , 1256-57 (11th Cir.
    2009).
    In light of third parties’ interests, however, the correct remedy here is to
    vacate the order of restitution to Reece’s Alleged Victims and remand for a
    hearing. In this case, we face a situation where not remanding may harm victims
    who may not have been in court. If we do not remand, these individuals will be
    denied the possibility of restitution through no fault of their own.       Vacating
    without remand would harm victims though they bear no responsibility for the
    crime and are the parties the statute seeks to benefit.
    Accordingly, we exercise our discretion to vacate the order of restitution to
    Reece’s Alleged Victims and remand the case to the district court for a hearing on
    22
    Case: 11-15953         Date Filed: 09/06/2013        Page: 23 of 23
    whether these individuals are entitled to restitution. 8 See generally 
    28 U.S.C. § 2106
    .
    V. CONCLUSION
    The convictions and sentences of the Defendants are AFFIRMED. We
    AFFIRM the restitution order generally, but VACATE the restitution order in
    respect to the Caldwells, Colovin, Freeman, Perry, and Wilson and REMAND for
    a hearing to determine whether they are entitled to restitution.
    CONVICTIONS            AND       SENTENCES            AFFIRMED;           RESTITUTION
    ORDER AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
    8
    In its brief, the Government notes that the restitution order contains an arithmetic error
    that originated in the Government’s proposed order. (Red. Br. at 47-48.) On remand, the district
    court should also revise the restitution order to reflect any clerical errors in the Government’s
    arithmetic. See Fed. R. Crim. P. 36 (granting the court the ability to correct a clerical error at any
    time.); United States v. Augustin, 
    661 F.3d 1105
    , 1110 n.1 (11th Cir. 2011) (“[W]e may sua
    sponte raise the issue that there is a clerical error in the judgment and remand with instructions
    that the error be corrected.”).
    23