                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________
                                                                    FILED
                                       No. 08-12246        U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               ________________________      DECEMBER 28, 2010
                                                                  JOHN LEY
                       D. C.   Docket No. 05-00316-CR-02-BBM-1 CLERK

UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                             versus

VIRGINIA ROSE NOVRIT,
CLARENCE LORENZO DAVIS,
a.k.a. C. Dave Davis,
JOSEPH STERLING JETTON,

                                                                      Defendants-Appellants.

                               ________________________

                      Appeals from the United States District Court
                          for the Northern District of Georgia
                            _________________________

                                    (December 28, 2010)


Before TJOFLAT, ANDERSON, and ALARCON,* Circuit Judges.

_____________________
*Honorable Arthur L. Alarcon, United States District Judge for the Ninth Circuit, sitting by
designation.
PER CURIAM:

      Defendants Joseph Jetton, Clarence Davis, and Virginia Novrit appeal from a

criminal conviction in the Northern District of Georgia for multiple counts relating

to a mortgage fraud conspiracy that involved more than twenty individuals. The

three defendants were convicted by a jury of mortgage fraud conspiracy, multiple

counts of bank fraud, multiple counts of wire fraud, multiple counts of money

laundering, and money laundering conspiracy.

      On appeal, Jetton argues that the district court erred when it excluded

evidence at trial of a letter that would have aided him in establishing an advice of

counsel defense. Jetton also claims that his Motion for a New Trial was evaluated

according to the wrong standard; that it was timely and should have been evaluated

under Rule 33(b)(2)’s “interest of justice” standard rather than the more demanding

Rule 33(b)(1) standard for newly discovered evidence. Finally, Jetton argues that

the court below made an error during the sentencing phase of the proceedings when

it ignored its own finding of fact in determining that the conspiracy injured ten or

more victims.

      Davis’s appeal argues that the prosecution did not produce sufficient

evidence to convict him and that the district court erred in not granting his motion



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for acquittal. He claims that the evidence presented established that Novrit gave

out false information and acted as a straw buyer in furtherance of the conspiracy

but did not tie him to her actions in any specific way.

      Davis and Novrit both challenge the district court’s loss determination and

the resulting sentencing enhancement due to the “amount of loss” being found to

exceed $1,000,000. Defendants claim that the actual loss amount should have been

$839,585 and that the court below should not have included the $261,000

“intended loss” from the 8415 Coghill Trace transaction. Both Davis and Novrit

claimed at trial that they did not intend to cause any loss to the mortgage lender

who would have financed this transaction, which was never completed because it

was an F.B.I. “sting” operation that resulted in the arrest of Novrit.

                                    DISCUSSION

      A.     Defendant Jetton’s argument that the district court erred by excluding
             the letter from Valenti’s attorney (Johnson) and by truncating
             defendant’s testimony with respect thereto.

      Defendant Jetton argues that the district court erred by precluding defense

evidence pertaining to the legal advice of Valenti’s attorney, Johnson. Jetton

argues that the district court erroneously prevented him from introducing the

attorney’s letter and erroneously limited his testimony with respect to the letter.

Although the facts are somewhat complicated (in that there were two letters from

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the attorney, and only the second letter – which neither the parties nor the court had

in hand during the trial – is asserted by Jetton to have been material and favorable

to him), we can assume arguendo that the district court erred, because it is clear

that the letter upon which Jetton now relies was not favorable to him. Thus, any

error was harmless beyond a reasonable doubt.

      The attorney’s letter upon which Jetton relies (i.e. the second letter from

Valenti’s attorney adduced by Jetton for the first time in his belated Motion for a

New Trial based on newly discovered evidence) specified certain procedures as

being appropriate for closing real estate transactions. As the district court pointed

out, Jetton’s conduct in handling the real estate transactions challenged in this case

departed radically from the procedures recommended as appropriate in the

attorney’s letter. For example, the real estate transactions which were the subject

of these criminal charges failed to show the list price of the property and thus failed

to show that the sales prices to the buyers (upon which the lenders based their

loans) greatly exceeded the original list of prices. In addition, the real estate

transactions in which Jetton was involved failed to provide a “detailed description

of the nature and purpose of each and every disbursement,” as specified by the

attorney. Compliance with the latter procedure would have revealed to the lenders

that the real estate transactions involved payments back to the buyer, thus

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obscuring the fact that the buyers were actually paying less for the property than

the sales contract indicated. This was a factor deemed crucial by the lenders. We

conclude that defendant Jetton conducted his real estate transactions in a manner so

markedly different from the procedures specified in the attorney’s letter that any

error was harmless beyond a reasonable doubt.

      For the same reasons, we reject Jetton’s argument that the district court

committed reversible error in cautioning counsel for Jetton about questions relating

to the letter. Because the letter provided no support at all for the legality of the real

estate transactions, Jetton could not have truthfully testified to the contrary.

      B.     Defendant Jetton’s argument that the district court erred in not
             considering his motion for new trial according to the “interests of
             justice” standard.

      Jetton claims that the district court erred in considering his motion for a new

trial on the basis of Federal Rule of Criminal Procedure 33's standard for newly

discovered evidence rather than that rule’s more lenient standard for motions on the

basis of the “interests of justice.” Jetton’s newly discovered evidence was the

second Valenti letter discussed above. Even if the Government waived any

timeliness objection to the use of the “interest of justice” standard, and even if the

district court erred in failing to use that standard, any such error is harmless beyond

a reasonable doubt. For the reasons noted above, that letter was clearly harmful to

                                            5
Jetton’s case, and certainly could not possibly have provided the basis for a new

trial regardless of the standard utilized. Thus, the district court’s action in this

regard, even if error, is not reversible error, and any remand would be futile.

      C.     Jetton’s argument that the district court erred in increasing his offense
             level because of 10 or more victims.

      We also find no merit in Jetton’s argument that the district court erred in

increasing his offense level pursuant to U.S. Sentencing Guidelines Manual §

2B1.1(b)(2)(A)(i) because the scheme involved ten or more victims. The district

court did not err in counting the additional four victims as part of the relevant

conduct. There was ample support for the district court’s finding that Jetton’s

participation with Valenti with respect to the four additional victims was similar

modus operandi.

      D.     Defendant Davis’s challenge to the sufficiency of the evidence against
             him.

      Next, Defendant Davis argues that the government presented insufficient

evidence for a reasonable jury to convict him. This claim is not borne out by the

record. Every one of the counts involved loans to Novrit in which the false

information included the fact that she was an employee of Davis’s company,

including falsified information with respect to her income therefrom. In addition,

Davis was actually present at the loan application for two of the transactions, and

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present for at least six of the closings. With respect to some of the closings, there

was evidence that he reviewed the documents for Novrit, his significant other.

There was even evidence of Davis’s intimate involvement, including the

arrangement for the $124,000 down payment for one of the transactions and his

letter detailing false information as to Novrit’s pay and bonus. The jury’s verdict

was reasonable on the basis of the foregoing facts.

      E.     Defendants Davis and Novrit’s challenge to the district court’s
             calculation of loss amount.

      Defendants Davis and Novrit argue that the district court erred in enhancing

their sentences on account of intended loss. The district court estimated the

intended loss by finding that the conspirators intended to gain over $200,000 from

the challenged transaction. Defendants concede that intended gain can be an

alternative measure of intended loss, but they argue that the alternative is available

only if the district court makes finding as to estimated intended loss and then

considers whether the intended gain is a reasonable estimate of the intended loss.

We need not decide whether such a step is required, because the intended loss in

the instant case obviously exceeded the district court’s finding that the conspirators

intended a gain of over $200,000.

      AFFIRMED.



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