                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 25 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30343

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00017-EJL-1

  v.
                                                 MEMORANDUM*
TRAVIS RICHARD HYMAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Idaho
                    Edward J. Lodge, District Judge, Presiding

                       Argued and Submitted March 3, 2015
                                Portland, Oregon

Before: FISHER, PAEZ, and IKUTA, Circuit Judges.

       Travis Hymas challenges his conviction and sentence for five counts of wire

fraud under 18 U.S.C. § 1343, as well as the district court’s restitution order. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Viewing the evidence in the light most favorable to the prosecution, a jury

could reasonably conclude that the prosecution proved each element of the wire

fraud counts beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

319 (1979). A reasonable trier of fact could conclude that the prosecution proved a

scheme to defraud and the intent to defraud lenders based on evidence that Hymas

misrepresented his and his wife’s income, assets, education, and employment on

loan applications. See 18 U.S.C. § 13431; United States v. Pelisamen, 641 F.3d

399, 409 (9th Cir. 2011). A reasonable jury could conclude that these

misrepresentations were material based on testimony from loan underwriters that

they relied on such information to make lending decisions. See Neder v. United

States, 527 U.S. 1, 16, 20, 25 (1999); United States v. Green, 592 F.3d 1057, 1064

(9th Cir. 2010). Hymas’s argument that the original lenders did not suffer harm

because they sold the loans fails because “[t]he intent to induce one’s victim to

give up his or her property on the basis of an intentional misrepresentation causes

      1
          Section 1343 provides, in pertinent part:

      Whoever, having devised or intending to devise any scheme or artifice to
      defraud, or for obtaining money or property by means of false or fraudulent
      pretenses, representations, or promises, transmits or causes to be transmitted
      by means of wire, radio, or television communication in interstate or foreign
      commerce, any writings, signs, signals, pictures, or sounds for the purpose
      of executing such scheme or artifice, shall be fined under this title or
      imprisoned not more than 20 years, or both.

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‘harm’ by depriving the victim of the opportunity to weigh the true benefits and

risks of the transaction, regardless of whether or not the victim will suffer the

permanent loss of money or property.” United States v. Treadwell, 593 F.3d 990,

997 (9th Cir. 2010).

      The district court did not abuse its discretion by denying Hymas’s motion to

exclude his tax returns under Federal Rule of Evidence 403. See United States v.

Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc). The tax returns were

probative of whether Hymas misrepresented his income on the relevant loan

applications, and the district court could reasonably conclude that any unfair

prejudice caused by jury confusion could be mitigated through cross examination

and closing argument, and therefore would not substantially outweigh the

documents’ probative value.

      Nor did the district court plainly err in allowing the prosecutor to argue that

inferences from the evidence adduced at trial proved the existence of a scheme and

an intent to defraud. The prosecutor did not make any false statements, cf. United

States v. Kojayan, 8 F.3d 1315, 1318–19, 1323 (9th Cir. 1993), and based his

arguments on “the evidence presented and . . . reasonable inferences therefrom,”

United States v. Baker, 10 F.3d 1374, 1415 (9th Cir. 1993), overruled on other




                                          -3-
grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000) (internal

quotation marks omitted).

      The district court did not err in calculating the amount of the actual loss

caused by Hymas’s fraud. The court properly applied the “preponderance of the

evidence” standard of proof, because the loss was caused by “charged conduct for

which the defendant has been convicted.” See United States v. Garro, 517 F.3d

1163, 1169 (9th Cir. 2008). It was reasonably foreseeable to Hymas “that the

entire amount of a fraudulently obtained loan may be lost” in light of the

information provided to Hymas about the possibility that each loan would be

transferred to a successor lender. See United States v. Morris, 744 F.3d 1373, 1375

(9th Cir. 2014). Nor did the court err in calculating the credit against loss, because

at this stage of the analysis, a court does not take into account the market’s effect

on reducing the value of the collateral. Id. In resolving the parties’ dispute

regarding the amount of the loss, the district court did not err in finding that the

evidence adduced at sentencing, including the testimony and affidavits of loan

servicer employees who relied on business records, had “sufficient indicia of

reliability” for purposes of United States Sentencing Guidelines § 6A1.3.

      The district court correctly calculated the amount of restitution by

subtracting the amount the successor lenders recovered from the amount they paid


                                          -4-
to purchase the loans. See United States v. Yeung, 672 F.3d 594, 603 (9th Cir.

2012), abrogated on other grounds by Robers v. United States, 134 S. Ct. 1854

(2014). The evidence supports the district court’s conclusion that Morgan Stanley

did not sell the loan to the Morgan Stanley Trust, but placed the loan in trust. The

district court did not err in rejecting Hymas’s argument that Freddie Mac recovered

the amount of its loss from investors in mortgage-backed securities, because this

argument was unsupported by the record. As in Yeung, the loan purchasers here

were victims “directly and proximately harmed as a result of” Hymas’s fraud, see

18 U.S.C. § 3663(a)(2), because each loan purchaser “purchased the loan without

an awareness of its true value due to [Hymas’s] fraud,” see Yeung, 672 F.3d at 601,

603. The loan purchaser’s delay in foreclosing does not affect this conclusion. See

Robers, 134 S. Ct. at 1859. The district court did not err in ordering that the

restitution be paid to the loan servicers, because they were the collection agents for

the victims.

      For these reasons, we affirm the conviction, sentence, and restitution order.

      AFFIRMED.




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