United States v. Peterson ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 07-50120
v.
 D.C. No.
CR-03-00761-
PAUL PETERSON, aka Paul Joseph
Peterson, RSWL-1
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 07-50146
Plaintiff-Appellee,
D.C. No.
v.
 CR-03-00761-
WILLIAM PETERSON, aka BILL RSWL-02
PETERSON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted
June 12, 2008—Pasadena, California
Filed August 13, 2008
Before: Stephen S. Trott, Kim McLane Wardlaw, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Trott
10489
10492 UNITED STATES v. PETERSON
COUNSEL
William J. Genego, Jr., Nasatir, Hirsch, Podberesky, &
Genego, Santa Monica, California, and Paul L. Hoffman, Har-
ris & Hoffman, LLP, Venice, California, for the defendants-
appellants.
William A. Crowfoot, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
OPINION
TROTT, Circuit Judge:
Defendants Paul and William Peterson ran a home building
business in California. In the 1990s, they subsidized down
UNITED STATES v. PETERSON 10493
payments to home buyers and then submitted misleading gift
letters to the Department of Housing and Urban Development
(“HUD”) falsely stating that a family member or friend of the
buyer had provided the money for the down payment.
Defendants appeal their jury convictions for: 1) causing
false material statements to be made in a matter within the
jurisdiction of an agency of the United States, in violation of
18 U.S.C. § 1001; 2) aiding and abetting in the violation of
§ 1001, in violation of 18 U.S.C. § 2; and 3) conspiring to
make such false statements, in violation of 18 U.S.C. § 371.
They appeal also the district court’s order of restitution in the
amount of $1,258,775, imposed pursuant to 18 U.S.C.
§ 3663A.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm. We hold that although it would be preferable for dis-
trict courts to use a definition of materiality tracking the lan-
guage approved by the United States Supreme Court in
United States v. Gaudin, 515 U.S. 506 (1995), in this case, the
district court did not commit plain error by giving the jury
instruction it did. We further hold that the false gift letters and
the source of the down payment for HUD-insured loans were
material to HUD. Finally, we hold that Defendants’ actions
were the actual and proximate cause of HUD’s losses, and we
affirm the restitution order for the full amount of HUD’s loss.
I
BACKGROUND
A. HUD Requirements
By insuring Federal Housing Administration (“FHA”)
mortgages, HUD assists homebuyers who cannot otherwise
afford to purchase homes. FHA mortgage insurance insures
the mortgage for the lenders, and if the buyer cannot make
payments, HUD pays off the loan and takes the property. By
10494 UNITED STATES v. PETERSON
law, the buyer must meet three conditions before HUD will
insure the loan: 1) sufficient income to make the monthly pay-
ments; 2) satisfactory credit rating; and 3) the ability to make
a three-percent minimum cash investment in the property.1
See 12 U.S.C. §§ 1709, 1715b.
Under HUD’s regulations and policies, the buyer is not
required to have the down payment come out of his or her
own pocket—he or she may receive the down payment as a
gift from friends, relatives, or non-profit housing assistance
organizations. However, the sellers of the property are not
permitted to make direct gifts to the buyers.
Despite this restriction on sellers, the seller was permitted
indirectly to subsidize the down payment by providing money
to a non-profit organization.2 Under the permissible indirect
subsidy scheme, after the non-profit approved a buyer, the
non-profit agreed to gift the down payment at closing. The
gift was paid out of the non-profit’s own funds, and only after
closing did the seller pay the non-profit a “service fee” equal
to the gift from the proceeds of the sale. If the closing did not
go through, the seller was not required to pay the service fee.
The fee was used by the non-profit to provide gifts to future
home purchasers.
1
Although the cash investment is not technically a down payment, we
refer to it as such for simplicity’s sake.
2
In October 2007, HUD promulgated a new regulation providing that
FHA will no longer insure loans originated with seller-funded down pay-
ment assistance, whether that assistance is direct or indirect. See Standards
for Mortgagor’s Investment in Mortgaged Property, 72 Fed. Reg. 56,002,
56,002 (Oct. 1, 2007). Two district courts have concluded that HUD’s pro-
mulgation of the October 2007 regulation violated the Administrative Pro-
cedure Act. See Nehemiah Corp. of America v. Jackson, 546 F. Supp. 2d
830 (E.D. Cal. 2008); Penobscot Indian Nation v. United States Dep’t of
Housing and Urban Dev., 539 F. Supp. 2d 40 (D.D.C. 2008). We express
no view about the merits of those decisions or HUD’s subsequent attempt
to promulgate similar regulations. See Standards for Mortgagor’s Invest-
ment in Mortgaged Property: Additional Public Comment Period, 73 Fed.
Reg. 33,941 (June 16, 2008).
UNITED STATES v. PETERSON 10495
Buyers who received the down payment money from an
outside source, such as a family member, friend, or non-
profit, were required to submit a gift letter to HUD. The gift
letter confirmed the source of the gift, the relationship of the
donor to the donee, and the nature of the buyer’s down pay-
ment. A copy of the cashier’s check delivering the gifted
funds to escrow was attached also to the gift letter. The gift
letter was put into a binder compiling details on the loan.
At the Petersons’ trial, the government’s expert, Travis
Pham, Chief of the Insuring and Underwriting Division of
HUD, testified that the government relied on the information
in the binder, including the gift letter, to determine whether it
would insure a loan and for auditing purposes. Pham was
offered as an “expert on HUD regulations and policies related
to underwriting” without objection by the Petersons. He said
that HUD would not insure a loan if the binder contained a
false gift letter: the down payment could come from the
buyer’s friends, relatives, or a non-profit, but “money can’t go
directly from the seller to the buyer.” Pham further testified
that requiring buyers to put 3% down gave the buyer some
interest in the property, making it less likely that he or she
would default. He explained that the limitations on who may
give the buyer money existed also to prevent the seller from
increasing the price.
B. The Petersons’ Scheme
At the time of the trial, Paul and William Peterson ran a
home building business called Peterson Land and Develop-
ment (“PLD”). Their father started PLD, and he later brought
Paul into the business. Paul became a FHA and HUD builder
in the late 80s. Sometime in 1992 or 1994, William took over
from their father as the sales manager for PLD.
At trial, Paul testified that in the early 1990s, he met many
potential buyers who wanted to buy homes, had the employ-
ment, income, and credit to do so, “but just didn’t have the
10496 UNITED STATES v. PETERSON
cash to get into the property.” Paul testified that “[u]nder the
FHA program, [he] knew that [he] could not give the buyer
his down payment.” He further testified that he spoke to a
HUD construction analyst, Bob Hudgins, who told him that
although the seller could not directly give the money to the
buyer, he could give it to a relative because FHA did “not
care where the donor gets the money.” Called as a rebuttal
witness by the government, Hudgins testified that he did not
recall the conversation with Paul, but even if it had occurred,
he could not have advised Paul regarding gift letters or mort-
gage requirements because he had no knowledge of those
areas of HUD.
Paul testified that after he spoke to Hudgins, he concluded
that he could lawfully assist potential buyers by taking money
from PLD’s profits and subsidizing the down payments. To
facilitate this plan, the Petersons purchased a cashier’s check
in the name of a third party designated by the buyer. The third
party never had possession or control of the gifted funds. The
Petersons then deposited the cashier’s check into escrow and
submitted a gift letter to HUD stating that the third party was
the donor of the gifted down payment. Paul testified that the
buyer took the gift letter and had it filled out and signed by
the bogus donor. As the sales manager, William was responsi-
ble for retrieving the gift letters and explaining that the donor
on the gift letter would not actually have to provide any
money.
Testimony of one of the buyers (“MM”) and the parties
listed on his gift letter (“Fisher Gift Letter”) contradicted
Paul’s testimony about how the gift letters were obtained.
MM testified that he did not have his parents (the purported
donors) sign the gift letter. MM’s parents testified that the sig-
natures of their names on the gift letter were forgeries, and
that they did not provide MM with any financial assistance for
the purchase.
Defendants put up the down payment money for numerous
transactions between 1993 and 1998. Several buyers for
UNITED STATES v. PETERSON 10497
whom Defendants directly funded the down payment later
defaulted on their mortgage payments, leading to foreclosure.
HUD assumed repayment of the loans.
C. Procedural History
Count One of the second superceding indictment charged
Defendants with conspiracy to violate 18 U.S.C. § 1001 in
violation of 18 U.S.C. § 371. Count Two charged Defendants
with: 1) violating 18 U.S.C. § 1001(a)(3); and 2) aiding and
abetting the commission of a federal crime under 18 U.S.C.
§ 2.
Section 1001(a)(3) establishes criminal penalties for any-
one who, in a matter within the jurisdiction of a federal
agency, “makes or uses any false writing or document know-
ing the same to contain any materially false, fictitious, or
fraudulent statement or entry.” 18 U.S.C. § 1001(a)(3).
On January 17, 2006, the Petersons’ jury trial commenced.
On January 19, Defendants moved for judgment of acquittal
under Federal Rule of Criminal Procedure 29, arguing that the
source of the money was immaterial to HUD. The judge
denied the motion.
At the government’s request, the district court gave Ninth
Circuit Model Criminal Jury Instruction 8.66 on materiality:
“[a] statement is material if it could have influenced the agen-
cy’s decisions or activities.” Paul objected to the instruction,
arguing that the model jury instruction was too broad because
there could be a “situation [where] there is an immaterial or
irrational application or statement that the bureaucracy of the
government requires, that the person could have submitted a
statement to them that was totally immaterial [and] unrelated
to the program, purposes or concerns.” Paul proposed an
alternative jury instruction: “a statement is material if it’s
important or significant to the Government program to which
it was submitted.” The court rejected the proposed instruction.
10498 UNITED STATES v. PETERSON
The jury found both Defendants guilty on both counts of
the indictment. The Pre-Sentence Report recommended resti-
tution in the amount of $1,258,775. The recommendation was
based on a report by Chris Hyun, a forensic auditor with
HUD. Hyun calculated a restitution amount for each property
equal to the difference between the appraised value of the
property at the time of conveyance to HUD and HUD’s
expenses in making good on the lender’s mortgage insurance
claim. The report did not attribute to the Petersons additional
losses resulting from discounts or rebates HUD provided to
the purchasers of foreclosed properties. Defendants objected
to the requested amount of restitution, arguing that the “con-
tribution of the down payments did not proximately cause the
homeowners to fail to make their mortgage payments.” The
district court disagreed with Defendants and determined that
they were the proximate cause of the loss. It ordered restitu-
tion in the full amount requested by the government for the
loss incurred by HUD.
II
DISCUSSION
The Petersons present three arguments for our consider-
ation: 1) the jury instruction was erroneous because it mis-
stated the element of materiality; 2) the evidence was
insufficient to support a determination that the false gift let-
ters were material to HUD; and 3) the restitution order was
erroneous because the government failed to present evidence
that Defendants’ false statements were the direct and proxi-
mate cause of the loss. We address each in turn.
A. Jury Instruction
1. Standard of Review
We typically review de novo whether a jury instruction
misstates an element of a crime, and we review for abuse of
UNITED STATES v. PETERSON 10499
discretion a district court’s formulation of an instruction.
United States v. Dearing, 504 F.3d 897, 900 (9th Cir. 2007).
However, “[i]n the absence of a timely objection to the jury
instructions, we review for plain error.” United States v.
Moran, 493 F.3d 1002, 1009 (9th Cir. 2007) (per curiam). See
also United States v. Nash, 115 F.3d 1431, 1437 (9th Cir.
1997) (“Gaudin-type errors not asserted at trial should be
reviewed for plain error pursuant to Fed. R. Crim. P. 52(b)
. . . .”).
“A party who objects to any portion of the instructions or
to a failure to give a requested instruction must inform the
court of the specific objection and the grounds for the objec-
tion before the jury retires to deliberate.” FED. R. CRIM. P.
30(d). “Rule 30 . . . requires that a defendant object with ade-
quate specificity—an objection must state distinctly the mat-
ter to which the party objects as well as the grounds of the
objection. A defendant’s mere proposal of an alternate
instruction does not satisfy Rule 30’s standard of specificity.”
United States v. Elias, 269 F.3d 1003, 1017-18 (9th Cir. 2001)
(quoting United States v. Klinger, 128 F.3d 705 (9th Cir.
1997)).
An examination of the record reveals that Defendants
objected to the jury instruction on different grounds below
than they do on appeal. At trial, Paul offered the following
objection:
The objection is basically . . . as to line 19 and 20,
and [the government’s] instruction says, a statement
is material if it could have influenced the agency or
activities. The opposite instruction that’s offered by
[Defendants] is a statement is material if it’s impor-
tant or significant to the Government program to
which it was submitted. . . . The Ninth Circuit
instruction, it sort of could have a situation [where]
there is an immaterial or irrational application or
statement that the bureaucracy of the government
10500 UNITED STATES v. PETERSON
requires, that the person could have submitted a
statement to them that was totally immaterial [and]
unrelated to the program, purposes or concerns . . . .
In other words, Defendants believed that the FHA’s insistence
that down payment funds not come directly from the seller
was irrational in terms of the insurance program’s purposes
(because FHA allowed equally pernicious indirect seller sub-
sidies through non-profits), and consequently that the identity
of the funds’ source was “immaterial.”3
In contrast, on appeal, Defendants argue that the proper
materiality instruction is: “The statement must have a natural
tendency to influence, or [be] capable of influencing, the deci-
sion of the decisionmaking body to which it was addressed.”
See Gaudin, 515 U.S. at 509 (internal quotation marks omit-
ted). The requested instruction on appeal does not focus on
the rationality of the agency’s decisionmaking process, as did
the requested instruction below. Rather it focuses on whether
the statement is capable of influencing the agency’s decision.
Consequently, we review for plain error.
2. Discussion
We hold that although it would be preferable for district
courts to use the definition of materiality approved by the
Supreme Court in Gaudin, in this case, the use of the Ninth
Circuit Model Jury Instruction was not plain error.
3
This interpretation of Defendants’ objection to the materiality of the
jury instruction is further supported by their Rule 29 motion for a directed
verdict of acquittal. There they argued that the “gift letter demonstrates
that there is no materiality” because Pham’s testimony showed that “not
only does the Government not care [that the funds are] coming from the
seller, but they have consciously blinded themselves to where it’s coming
from.” All of the nonprofit transactions approved by FHA established that
“this type of a transaction where the seller gives it to the buyer . . . is total
immateriality [sic].” The “legal fiction of saying that the money is differ-
ent that comes than goes out” of a nonprofit’s general funds “prove[s] . . .
[that the gift letters were] never material.”
UNITED STATES v. PETERSON 10501
Plain error review requires us to find “(1) an error that is
(2) plain and (3) affects substantial rights. Even if these con-
ditions were met, we may only exercise our discretion to cor-
rect the error if it ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’ ” Nash, 115 F.3d at
1437 (quoting Johnson v. United States, 520 U.S. 461, 467
(1997). A jury instruction is not plainly erroneous if it is “sub-
stantially similar” to another permissible instruction. United
States v. Johnson, 297 F.3d 845, 866-67 n.21 (9th Cir. 2002).
[1] The Supreme Court has explained that the customary
common law test for materiality in false statement statutes
such as § 1001 is whether the statement “has a natural ten-
dency to influence, or was capable of influencing, the deci-
sion of the decisionmaking body to which it was addressed.”
Kungys v. United States, 485 U.S. 759, 770 (1988) (internal
quotation marks omitted). Subsequently, in Gaudin, the
Supreme Court reaffirmed the definition of materiality that it
applied in Kungys. See Gaudin, 515 U.S. at 509; see also
United States v. Tarallo, 380 F.3d 1174, 1190 (9th Cir. 2004).
Defendants argue that the district court’s instruction was
erroneous, and that the Gaudin instruction should have been
given for two reasons. First, they argue that the “could have”
portion of the jury instruction was erroneous because it broad-
ened the scope of materiality. Under the facts in this case, this
argument fails.
[2] The difference between “could have influenced” and
“capable of influencing,” is sufficiently nebulous that our sis-
ter circuits have sometimes used the “could have” language in
post-Gaudin opinions.4 Furthermore, “capable of influencing”
4
See, e.g., United States ex rel. Wilson v. Kellogg Brown & Root, Inc.,
525 F.3d 370, 378 (4th Cir. 2008) (“[T]he form’s materiality depends on
whether it could have influenced the government’s decision to award Task
Order 43 to KBR.”) (emphasis added); United States v. Rogan, 517 F.3d
449, 452 (7th Cir. 2008) (“Instead [the defendant] argues that the omis-
10502 UNITED STATES v. PETERSON
is an objective test, which looks at “the intrinsic capabilities
of the false statement itself, rather than the possibility of the
actual attainment of its end.” United States v. Facchini, 832
F.2d 1159, 1162 (9th Cir. 1987); see also Kungys, 485 U.S.
at 771 (equating “predictably capable of affecting” with “ha-
[ving] a natural tendency to affect”). “Could have influenced”
likewise looks at a statement’s intrinsic capacity to influence,
not its probability of causing influence. As the Supreme Court
has said in a different context, “the use of the word ‘could’
focuses the inquiry on the power of the trier of fact,” not on
“likely behavior” or “probabilistic” matters. See Schlup v.
Delo, 513 U.S. 298, 330 (1995) (distinguishing “could have
convicted” from “would have convicted”).
[3] Thus, because “could have influenced” is “substantially
similar” to the “capable of influencing” language in the
Gaudin instruction, we conclude there is not plain error here.
See Tarallo, 380 F.3d at 1190.
Defendants’ second argument regarding the given jury
instruction turns on the inclusion of the word “activities.”
Here, they argue that a statement could be deemed material
even if it was completely incapable of influencing a decision
the agency was trying to make. This argument fails because
the plain language of the given instruction does not permit a
finding of materiality based solely on the utterance of a false
statement. Rather, under the given instruction, the jury was
required to find that the false statement could have actually
resulted in a change in position by the agency. Again, this is
“substantially similar” to the Gaudin instruction. Conse-
quently we conclude that the given jury instruction was not
sions were not material . . . . The question is . . . whether the omission
could have influenced the agency’s decision.”) (emphasis added); United
States v. DiRico, 78 F.3d 732, 736 (1st Cir. 1996) (“The government need
only prove to the jury . . . that the alleged false statement at issue could
have influenced or affected the IRS . . . .”) (emphasis added).
UNITED STATES v. PETERSON 10503
plain error under the specific facts of this case. See Tarallo,
380 F.3d at 1190.
B. Sufficiency of the Evidence
Defendants argue that their convictions must be vacated
because there is insufficient evidence as a matter of law to
support a conclusion that the source of the down payment was
material to HUD’s decision to insure the loan. We disagree.
1. Standard of Review
There is sufficient evidence to support a conviction if,
viewing the evidence in the light most favorable to the prose-
cution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319 (1979).
2. Discussion
a. Count Two, Violations of §§ 1001 and 2
[4] “A conviction under § 1001 requires the government to
prove (1) a statement, (2) falsity, (3) materiality, (4) knowl-
edge, and (5) jurisdiction.” United States v. Atalig, 502 F.3d
1063, 1066 (9th Cir. 2007). “The jury is the finder of fact and
is entitled to believe or disbelieve the testimony of the depart-
ment officials.” United States v. Gaudin, 28 F.3d 943, 950
(9th Cir. 1994) (en banc), aff’d, 515 U.S. 506.
Defendants contest only the materiality of the false gift let-
ters and the source of the down payment. We hold that
Pham’s testimony could have led a rational trier of fact to
conclude that the false gift letters and the source of the down
payment were material to HUD.
[5] Pham testified that HUD would not insure a loan if the
case binder contained a false gift letter. Pham further testified
10504 UNITED STATES v. PETERSON
that “we need to know who the donor is and . . . the relation-
ship between the donor and the buyer, and how much the gift
was for, and how the money was transferred and where it was
from.” A reasonable juror could have concluded that the false
statements in the Fisher Gift Letter were material because,
had HUD known that the Petersons directly funded the down
payment, HUD would not have insured the loan. See United
States v. Mayberry, 913 F.2d 719, 723 (9th Cir. 1990) (con-
cluding that the testimony of a HUD administrator that the
information at issue was “highly significant in reviewing
mortgage insurance applications” was sufficient to establish
materiality).
Defendants make much of the fact that a non-profit could
fund the down payment, and the seller could donate money to
the non-profit, arguing that what mattered to HUD was not
the source of the down payment, but whether or not it was
made. However, this argument ignores Pham’s testimony that
HUD’s policies did not permit the seller to gift the money
directly to the buyer.
The distinction Pham articulated between direct and indi-
rect gifts did not stem from the idiosyncratic predilections of
any one approving officer. Rather, the requirements were
established rules and regulations of HUD—a clear indication
that the statements in the gift letters as to the source of the
down payment were predictably capable of influencing
HUD’s decisions.5
5
Although Pham recognized that there was a “very good possibility”
that the permissible indirect subsidies might implicate many of the same
concerns as the forbidden direct seller subsidies, the materiality require-
ment in false statement cases does not turn on whether the agency’s regu-
latory distinctions are wise or consistent as a matter of policy; it contains
no embedded question of substantive reasonableness. Cf. Tarallo, 380
F.3d at 1190 (rejecting the argument that “materiality” depends on
whether a statement is “important to the decision-making process” of a
“reasonable person”).
UNITED STATES v. PETERSON 10505
Furthermore, it is undisputed that HUD has always prohib-
ited direct gifts from sellers. See Standards for Mortgagor’s
Investment in Mortgaged Property, 72 Fed. Reg. 27,048 (May
11, 2007); Sources of Homeowner Downpayment, 64 Fed.
Reg. 49,956 (Sept. 14, 1999); HUD Mortgagee Letter 91-9
(1991). In fact, Paul himself recognized that “under the FHA
program . . . [he] could not give the buyer his down payment.”
[6] As a result, we hold that there was sufficient evidence
for a reasonable juror to conclude that the gift letters and the
source of the down payment were material to HUD.
b. Count One, Conspiracy to violate § 1001
Defendants were convicted also of violating 18 U.S.C.
§ 371, which provides:
If two or more persons conspire either to commit any
offense against the United States, or to defraud the
United States, or any agency thereof in any manner
or for any purpose, and one or more of such persons
do any act to effect the object of the conspiracy, each
shall be fined under this title or imprisoned not more
than five years, or both.
18 U.S.C. § 371.
[7] In support of their argument that the evidence was
insufficient for their conspiracy convictions, Defendants
merely reiterate that the statements made with respect to
Count Two were not material. Because sufficient evidence
supports the convictions for Count Two and because Defen-
dants raise no other argument with respect to the conspiracy
convictions, we hold that sufficient evidence supports the
conspiracy convictions.
C. Restitution
Defendants raise two arguments challenging the district
court’s order of restitution in the amount of $1,258,755: 1) the
10506 UNITED STATES v. PETERSON
government presented no evidence that Defendants’ crimes
directly or proximately caused the losses; and 2) the district
court did not make any factual findings to support the restitu-
tion order.
1. Standard of Review
We review de novo the legality of a restitution order and,
if the order is within the statutory bounds, we review the
amount of restitution for abuse of discretion. United States v.
Phillips, 367 F.3d 846, 854 (9th Cir. 2004) (as amended). We
review for clear error factual findings supporting an order of
restitution. United States v. Berger, 473 F.3d 1080, 1104 (9th
Cir. 2007).
2. Causation
[8] Restitution in this case is governed by the Mandatory
Victims Restitution Act (“MVRA”), 18 U.S.C. § 3663A. “The
MVRA requires a defendant to pay restitution to a victim who
is ‘directly and proximately harmed as a result of’ the fraud.”
Id. at 1104 (quoting 18 U.S.C. § 3663A(a)(2)). A victim “is
a person who has suffered a loss caused by the specific con-
duct that is the basis of the offense of conviction.” United
States v. Gamma Tech Indus. Inc., 265 F.3d 917, 927 (9th Cir.
2001) (quotation marks omitted). “The government has the
burden of establishing by a preponderance of the evidence
that the victim’s damages were caused by the conduct of
which the defendant was convicted.” United States v. Rice, 38
F.3d 1536, 1540 (9th Cir. 1994); see also 18 U.S.C. § 3664(e).6
[9] Restitution may compensate victims only “for actual
6
Rice considered restitution under the Victim and Witness Protection
Act (“VWPA”). With exceptions inapplicable here, the VWPA and the
MVRA “are identical in all important respects, and courts interpreting the
MVRA may look to and rely on cases interpreting the VWPA as prece-
dent.” United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004).
UNITED STATES v. PETERSON 10507
losses caused by the defendant’s criminal conduct.” Gamma
Tech Indus., 265 F.3d at 926.
Defendant’s conduct need not be the sole cause of
the loss, but any subsequent action that contributes
to the loss, such as an intervening cause, must be
directly related to the defendant’s conduct. The
causal chain may not extend so far, in terms of the
facts or the time span, as to become unreasonable.
Id. at 928 (citations omitted). The “main inquiry for causation
in restitution cases [is] whether there was an intervening
cause and, if so, whether this intervening cause was directly
related to the offense conduct.” Gordon, 393 F.3d at 1055
(quoting United States v. Meksian, 170 F.3d 1260, 1263 (9th
Cir. 1999).
We recently addressed the issue of proximate cause in the
context of restitution for misreporting of financial informa-
tion. Berger, 473 F.3d 1080. In Berger, the defendant falsified
Borrowing Certificates by overstating assets and accounts
receivable. Id. at 1105. As a result of the falsified statements,
several banks loaned “millions of dollars to [the defendant’s
business] based on either nonexistent or substantially over-
stated collateral.” Id. at 1085. After a jury convicted the
defendant, the district court imposed a sentence of six months
in prison and ordered the defendant “to pay the lending banks
$3.14 million in restitution.” Id. at 1089.
On appeal, the defendant challenged the restitution order,
arguing that the lending banks’ losses were not traceable to
the fraudulent Borrowing Certificates, but rather to unrelated
financial difficulties. Id. at 1104, 1107. We disagreed, first
observing that “[t]he information in the Borrowing Certifi-
cates was vital” because the defendant’s “fraudulent over-
statement would, and did, cause the lending banks to advance
more money than” they otherwise would have. Id. at 1107.
We continued:
10508 UNITED STATES v. PETERSON
[The defendant] is probably correct to note that [his
business’] financial troubles [and a downturn in the
electronics market] ultimately led to the loan default.
He has not demonstrated, however, that external fac-
tors were completely to blame for the lending banks’
losses. Even if the default were inevitable, the high
amount of the lending banks’ losses was not. Had
[the defendant] not fraudulently stated [his busi-
ness’] assets on the Borrowing Certificates, the
amount of outstanding debt would have been smal-
ler. That fact was taken into account by the district
court, which did not attribute the lending banks’
entire loss to the fraud. Instead, the district court
properly focused only on the amount of loss attribut-
able to the falsified Borrowing Certificates.
Id. Here, if the Petersons had not falsely stated that they were
directly the source of the down payments, then the FHA
would not have insured the defaulted mortgages and would
have suffered no losses whatsoever.
Similarly, we have upheld restitution orders even where
there are multiple links in the causal chain. United States v.
Hackett, 311 F.3d 989 (9th Cir. 2002). In Hackett, we held
that a defendant who pled guilty to aiding and abetting meth-
amphetamine manufacture could be ordered to pay restitution
to an insurance company for property damage caused when a
co-defendant started a fire by placing a jar of chemicals used
to manufacture methamphetamine on a hot plate. Id. at 992-
93. The defendant obtained supplies that his co-defendants
later used to manufacture methamphetamine, and he had
“knowledge and understanding of the scope and structure of
the enterprise and of the activities of [his co-defendants].” Id.
at 993. We recognized that there were “multiple links in [the]
causal chain,” but still held that the defendant’s conduct was
directly related to the resulting loss. Id.
Under a different statutory scheme, one of our sister cir-
cuits addressed the proximate cause issue under similar fac-
UNITED STATES v. PETERSON 10509
tual circumstances to the scheme used by the Petersons. See
United States v. Spicer, 57 F.3d 1152 (D.C. Cir. 1995). In
Spicer, the defendant was convicted of fraud for submitting
documents that “intentionally overstated the down payment
made by a home buyer in order to help the buyer qualify for
an FHA-insured mortgage.” Id. at 1154 & n.1. “[T]he fraud
conviction was predicated upon a single transaction . . . [but
the defendant] admitted in factual stipulations that he had
made similar misrepresentations on a total of 81 applications
for FHA-insured mortgages.” Id. at 1154. Many of these buy-
ers “subsequently defaulted, resulting in losses of $1.8 million
to HUD.” Id.
The court of appeals agreed with the defendant “that proof
that his misrepresentation proximately caused harm to the
government is required in order to establish the fraudulent
nature of his debt” for the purpose of the Bankruptcy Code.
Id. at 1159. However, the court affirmed the district court’s
conclusion that the defendant’s “misrepresentations proxi-
mately caused HUD’s losses.” Id. at 1160. The court of
appeals explained:
[The defendant’s] misrepresentations were material
to HUD’s determination that the mortgage applicants
met the financial requirements to qualify for FHA-
insured mortgages and had a sufficient personal
financial stake in the properties to have the proper
incentives to avoid default. The misrepresentations
were thus more than a “but-for” cause; they proxi-
mately caused HUD’s losses when the buyers to
whom HUD improvidently granted FHA-insured
mortgages on the basis of [the defendant’s] misrep-
resentations of their financial qualifications
defaulted. The defaults were thus a foreseeable con-
sequence of [the defendant’s] conduct. It is undoubt-
edly true that in each case other factors also
“caused” the buyer’s default, but that is of no
moment, for as long as [the defendant’s] misrepre-
10510 UNITED STATES v. PETERSON
sentations were a material and proximate cause, they
need not have been the sole factor causing HUD’s
losses.
Id. at 1159. The court further explained:
It is undisputed that [the defendant] intentionally
misrepresented buyers’ downpayments in order to
induce HUD to approve FHA-insured mortgages for
parties who otherwise would not qualify; without
evidence of adequate down payments, HUD would
have rejected the applications, calculating the risk of
default too high. HUD went for [the defendant’s]
bait, and suffered massive losses when those buyers
subsequently defaulted. Viewing all the evidence in
the light most favorable to [the defendant], we think
a rational factfinder could only conclude from the
undisputed facts that [the defendant’s] misrepresen-
tations did indeed proximately cause HUD’s losses.
Id. at 1160.
Here, the district court ordered the full amount of restitu-
tion requested by the government for the loss incurred by
HUD for forty-three FHA insured loans. At sentencing, the
district court made the following statements:
I am going to take the full amount of restitution—
that is the loss—in violation of the two counts. There
may be other contributing factors, as you well
argued, and I accept that. But this is not a tort case
where I am going to divide it. In the first instance,
you are found culpable, and in that first instance you
should remain liable for the restitution amount.
The district court further stated: “With respect to the argu-
ment made by attorneys as to the proximate cause for the 43
foreclosures, I find clearly that the defendants’ actions cer-
UNITED STATES v. PETERSON 10511
tainly did put the government into that position for the higher
risk, so that is the finding.”
Defendants argue that the district court erred because the
losses to HUD were caused not by the fraudulent gift letters,
but by intervening events. Specifically, they argue that the
defaults were caused by the home-buyers’ inability to repay
the loans due to increased interest rates, inability to maintain
employment, and decreased paychecks. We disagree with
Defendants that these events preclude a conclusion that
Defendants were the direct and proximate cause of the losses
to HUD.
[10] Our analysis of our own case law as well as that of our
sister circuits leads us to conclude that despite the multiple
links in the causal chain, the Petersons directly and proxi-
mately caused the losses to HUD. As in Berger, Hackett, and
Spicer, the causal chain here is not extended so far as to
become unreasonable. The evidence at trial showed that
Defendants sold forty-three properties and directly provided
down payment assistance along with the false gift letters.
Each of those houses went into foreclosure. Without the down
payment, the buyers would not have been eligible for FHA
insured mortgages and could not have later defaulted on their
payments because they never would have been able to qualify
for HUD financing. The Petersons enabled unqualified buyers
to obtain loans; those unqualified buyers subsequently
defaulted. Thus, the very concern targeted by the prohibition
against direct seller subsidies—that buyers who could not
meet the 3% down payment requirement would have an inad-
equate incentive to avoid default—was exactly what eventu-
ated.
3. Factual Findings
Defendants argue that the district court did not make any
factual findings in ordering restitution and that “there was no
basis on which the court could make findings of fact sufficient
10512 UNITED STATES v. PETERSON
to support the order as the government presented no evidence
that the defendants’ crimes directly and proximately caused
the loss.”
[11] Nothing in the MVRA or our case law requires that the
district court consider certain factors or make findings of fact
on the record. See 18 U.S.C. § 3663A. Furthermore, as we
discussed above, the government did present evidence that
Defendants directly and proximately caused the loss. The
government presented a declaration from Hyun listing forty-
three different HUD-insured properties for which Defendants
had subsidized the down payments. Each of those houses
went into foreclosure, resulting in a loss to HUD. Hyun’s dec-
laration and report on the losses documented the specific loss
amount for each property. Although the district court did not
specifically make any findings, it is clear that it relied on
Hyun’s declaration and the testimony at trial in reaching its
conclusion as to the amount of the restitution.
III
CONCLUSION
For the above reasons, we affirm the district court’s sen-
tence and restitution order.
AFFIRMED.