               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.
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       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.
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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.

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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

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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.




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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.




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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 four restitution 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




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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

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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
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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

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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 he was 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
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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

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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).
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      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




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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.”).
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