United States Court of Appeals
For the First Circuit
Nos. 23-1956
24-1562
UNITED STATES,
Appellee,
v.
OSAKPAMWAN HENRY OMORUYI, a/k/a Clifford Bernard, a/k/a Bernard
Clifford,
Defendant, Appellant.
Nos. 23-1957
24-1561
UNITED STATES,
Appellee,
v.
OSARETIN GODSPOWER OMORUYI, a/k/a Nelson Bright, a/k/a Bright
Nelson,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Gelpí, Thompson, and Montecalvom,
Circuit Judges.
Jin-Ho King, with whom Milligan Rona Duran & King LLC was on
brief, for appellant Osakpamwan Henry Omoruyi.
Jane Elizabeth Lee was on brief, for appellant Osaretin
Godspower Omoruyi.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Leah B. Foley, United States Attorney, was on brief, for
appellee.
July 15, 2026
MONTECALVO, Circuit Judge. This case involves an appeal
following a district court jury trial convicting co-defendants
Osakpamwan Henry Omoruyi ("Henry") and Osaretin Godspower Omoruyi
("Osaretin")1 of: (1) bank fraud, in violation of 18 U.S.C. § 1344;
(2) conspiracy to commit bank fraud, in violation of 18 U.S.C.
§ 1349; and (3) conspiracy to commit money laundering, in violation
of 18 U.S.C. § 1956(h). They raise five issues on appeal
contending that: the government's evidence was insufficient to
prove their guilt on bank fraud and conspiracy to commit bank
fraud; the district court erred in instructing the jury on
materiality for the charge of bank fraud; the district court
incorrectly instructed the jury in response to its questions about
conspiracy; the district court erred at sentencing when it applied
an authentication enhancement; and finally that the district court
erred when it ordered them to pay restitution and made them jointly
and severally liable. For the reasons explained below, we affirm
Henry and Osaretin's convictions and sentences, and we affirm the
district court's restitution orders.
1For clarity, we adopt the names used by the parties, Henry
and Osaretin.
- 3 -I. Background
We summarize the relevant facts in the record, saving
some additional details for our analysis.
Henry and Osaretin are brothers who used fake passports
to open bank accounts between 2019 and 2020 while residing in
Massachusetts. Henry used a fake passport with the name "Clifford
Bernard," with a picture of himself, to open accounts at TD Bank
and two other banks. Osaretin used a fake passport with the name
"Nelson Bright," with a picture of himself, to open accounts at TD
Bank and four other banks. Osaretin also opened two accounts at
TD Bank, and at one other bank, in the name of a fake company,
Zion Cleaning.2
Henry and Osaretin set up the bank accounts in order to
deposit money from romance and unemployment scams, as well as other
impersonation scams, they were conducting. The romance scams
involved a third party pretending to be in love with a vulnerable
target -- sometimes an elderly individual -- to trick them into
sending large amounts of money. Meanwhile, the unemployment scams
involved filing for pandemic unemployment assistance using stolen
identities, and then depositing the money in Henry and Osaretin's
accounts.
2 Henry and Osaretin also opened bank accounts in their own
names.
- 4 -In conducting these schemes, Henry and Osaretin
exchanged account information with each other and third parties
overseas who were working with them, and the proceeds from the
scams were deposited into Henry and Osaretin's accounts.3
The Federal Bureau of Investigation ("FBI") was
contacted by people targeted by Henry and Osaretin's scams, and
started investigating the brothers. Eventually, the FBI executed
a search warrant of Henry's storage facility and found, among other
items, fake passports, other fake identification -- with the name
Clifford Benard but showing Henry's picture -- prepaid debit
cards, and bank documents. The FBI also executed a search warrant
of Osaretin's home and found fake passports, other fake
identification -- with the name Nelson Bright but showing
Osaretin's picture -- prepaid debit cards, and bank documents. A
grand jury ultimately returned a superseding indictment charging
Henry and Osaretin with bank fraud, bank fraud conspiracy, and
money laundering conspiracy.
The brothers were indicted in 2021, and an eight-day
trial was held in 2023. After the trial, the jury convicted Henry
and Osaretin of all three counts: bank fraud, conspiracy to commit
3 Wewill discuss this in more detail in the pages that follow,
but Osaretin withdrew $3,600 in ATM debit card transactions from
one of the Nelson Bright TD Bank accounts, and Henry withdrew
$1,000 in ATM debit card transactions from one of the Clifford
Bernard TD Bank accounts.
- 5 -bank fraud, and conspiracy to commit money laundering. Henry and
Osaretin moved for judgment of acquittal at the close of the
government's case and at the close of the evidence.
The district court sentenced Henry on all counts to
concurrent terms of seventy-eight months of imprisonment and two
years of supervised release, and sentenced Osaretin on all counts
to concurrent terms of seventy-two months of imprisonment and two
years of supervised release. The court deferred its determination
of restitution, stating an amended judgment would be entered after
restitution was determined. Henry and Osaretin filed timely
appeals, which were consolidated for our review. Subsequently,
the district court held a restitution hearing in April 2024. In
May 2024, the district court amended the defendants' judgments to
include restitution awards of $615,805.65. Henry and Osaretin
filed timely appeals of that order, which were consolidated with
this appeal.
II. Discussion
We turn to the issues presented on appeal.
A. Sufficiency of the Evidence4
We begin our analysis with the brothers' contention that
the government's evidence was insufficient to prove their guilt on
4 We begin with the sufficiency of the evidence arguments
because if Henry and Osaretin prevail here, we need not address
their challenges to the bank fraud and conspiracy to commit bank
fraud jury instructions because the Double Jeopardy Clause will
- 6 -bank fraud and conspiracy to commit bank fraud. Both Henry and
Osaretin argued insufficiency of the evidence before the district
court and thus preserved this issue for appeal.5
The bank fraud statute, 18 U.S.C. § 1344, states:
Whoever knowingly executes, or attempts to
execute, a scheme or artifice--(1) to defraud a financial institution; or
(2) to obtain any of the moneys, funds,
credits, assets, securities, or other property
owned by, or under the custody or control of,
a financial institution, by means of false or
fraudulent pretenses, representations, or
promises; shall be fined not more than
$1,000,000 or imprisoned not more than 30
years, or both.
A person can be convicted of bank fraud under either
§ 1344(1) or § 1344(2). We need only find the evidence sufficient
under § 1344(1) or § 1344(2) to uphold the conviction, and here,
we focus our discussion on § 1344(1). Turning to conspiracy to
commit bank fraud under § 1349, the government has the burden of
establishing "that[] a conspiracy existed[,]" that the person
attach to these convictions, precluding the government from
retrying them on these charges. See United States v. Pérez-Greaux, 83 F.4th 1, 12 (1st Cir. 2023); see also United States v.
Maldonado-Peña, 4 F.4th 1, 50 (1st Cir. 2021). Henry and Osaretin do not challenge their money laundering conspiracy convictions on sufficiency grounds, so we say no more.
5 We review challenges to the sufficiency of the evidence de
novo, examining the evidence "in the light most favorable to the
prosecution and decid[ing] whether that evidence, including all
plausible inferences drawn therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant committed the charged count or crime." United States v. DíazRosado, 857 F.3d 116, 120 (1st Cir. 2017) (quoting United States
v. Cruz-Díaz, 550 F.3d 169, 172 n.3 (1st Cir. 2008)).
- 7 -"knew of and voluntarily participated in the conspiracy[,]" and
that the person took an "overt act in furtherance of the
conspiracy."6 Blasini-Lluberas, 169 F.3d at 67.
Before us, the brothers argue that there was
insufficient evidence to convict them under § 1344(1) because the
government failed to prove that the brothers' withdrawals from the
bank accounts deprived the banks of something of value given Henry
and Osaretin were the bank's "customer[s] in fact." In making
this argument the brothers rely on Supreme Court precedent in Shaw
v. United States. 580 U.S. 63, 72 (2016). In Shaw, the Court
held that to constitute bank fraud under § 1344(1), the scheme
must deprive the bank of "something of value," explaining that "a
plan to deprive a bank of money in a customer's deposit account"
satisfies this requirement. Id. Shaw determined that when a
customer deposits money in a bank, the bank has "the right to
possess the deposited funds against all the world but for [the
customer]." Id. at 66. Relying on this sentence in Shaw, the
brothers contend that the government failed to prove that the
scheme deprived the banks of something of value because Henry and
Osaretin were the "customer[s] in fact," and therefore their
interests in the deposited funds were superior to the banks'
In addition, the agreement can be express or tacit, and the
6
agreement and the individual's participation do not need to be
proven by direct evidence. United States v. Blasini-Lluberas, 169 F.3d 57, 67 (1st Cir. 1999).
- 8 -interest in those funds.7 For example, despite opening accounts
in the name Clifford Bernard, Henry argues that he was in fact
opening this account for himself. For the same reasons, the
brothers argue that a rational jury could not find them guilty of
conspiracy to commit bank fraud.
The government, on the other hand, contends that there
was sufficient evidence for a rational jury to convict Henry and
Osaretin of bank fraud under § 1344(1), as well as conspiracy to
commit bank fraud under § 1349. Considering § 1344(1) and the
brothers' reliance on Shaw, the government contends that Henry and
Osaretin were not the banks' "customers." Instead, the government
posits that the fake persons described in the fake passports were
the "customers," and any argument that Henry and Osaretin's
interest in the funds is superior to the bank's interest in the
funds is meritless.
The government supports its contentions under § 1344(1)
by relying on evidence in the record that: (1) Henry had a
passport, displaying his picture, under the name Clifford Bernard
that he used to open TD Bank account x4990; and (2) Osaretin had
a passport, displaying his picture, under the name Nelson Bright
that he used to open up TD Bank accounts x3363 and x4502. The
Osaretin raises the related argument that when a scheme does
7
not pose a potential risk of loss to a bank then it does not
deprive a bank of its property. Because these arguments are
similar, we analyze them together.
- 9 -government also relied on testimony from a senior investigator
from TD Bank that Henry and Osaretin used the passports to open
the TD Bank accounts. The government thus contends that the
evidence supports that Henry and Osaretin withdrew money that was
deposited into those accounts by misrepresenting themselves as
Clifford Bernard and Nelson Bright, respectively. In addition, it
asserts, there was evidence sufficient for a jury to conclude that,
in at least one instance, Henry used an ATM debit card listing
Clifford Bernard's name to withdraw $1,000 from the Clifford
Bernard TD Bank account x4990. Similarly, the government contends
that there is evidence sufficient for a jury to conclude that in
one instance Osaretin used an ATM debit card listing Nelson
Bright's name to withdraw $3,600 from the Nelson Bright TD Bank
account x4502. Finally, the government argues that there was
sufficient evidence to convict Henry and Osaretin of bank fraud
conspiracy.
Here, examining the evidence in the light most favorable
to the government, as we are required to do, we think a rational
factfinder could conclude beyond a reasonable doubt that Henry and
Osaretin committed bank fraud under § 1344(1) and conspiracy to
commit bank fraud under § 1349. First, the case law does not
support Henry and Osaretin's legal arguments. Their reliance on
Shaw is misplaced because Henry and Osaretin were not the
"customers," described by the Court in Shaw. 580 U.S. at 66.
- 10 -Despite the brothers' characterization, Shaw does not focus on how
the bank's interest in a customer's deposited funds compares to
the customer's interest in those same funds. Instead, Shaw simply
held that the bank had an interest in the deposited funds, and the
plan to deprive the bank of money in the customer's account was
therefore a plan to deprive it of "something of value." Id. at
72. Moreover, in Shaw, the defendant deposited funds into another
person's account -- a real customer's account. Therefore, the
Court's statement that the bank has "the right to possess the
desposited funds against all the world but for [the customer],"
which the brothers rely on, has no bearing on a bank's interest in
deposited funds in relation to a fake customer's interest which is
the issue here. See id. at 66. Because -- unlike in Shaw -- Henry
and Osaretin used fake names to open the accounts, their reliance
on Shaw does not aid them.
Turning to the evidence before the jury, there was
sufficient evidence to convict Henry and Osaretin of bank fraud
under § 1344(1) because the evidence established that the brothers
(1) engaged in a scheme or artifice to defraud (2) a federally
insured financial institution, and (3) did so knowingly. Henry
and Osaretin's use of fake identities and passports to open TD
Bank accounts, which are FDIC insured,8 and then their withdrawal
8 It is undisputed that TD Bank is federally insured.
- 11 -of money deposited in those accounts by using debit cards listing
their fake names, means a rational jury could have found them
guilty of bank fraud under § 1344(1).
Having found that there was sufficient evidence from
which a jury could conclude that Henry and Osaretin engaged in
bank fraud, we now turn to whether there was sufficient evidence
to convict them of conspiracy to commit bank fraud under § 1349.
We find that there was sufficient evidence. To explain, Henry and
Osaretin exchanged their account information with each other
before sending it to other people. This is circumstantial evidence
from which the jury could infer that Henry and Osaretin had an
agreement and that they "knew of and voluntarily participated in
the conspiracy." Blasini-Lluberas, 169 F.3d at 67. In addition,
the record supports that money from Nelson Bright's accounts
(accounts which were opened by Osaretin using a fraudulent passport
in Bright's name) was transferred to Henry's personal account
during the conspiracy. Evidence of Henry and Osaretin withdrawing
funds from the accounts also permits the jury to infer that Henry
and Osaretin took an "overt act" "in furtherance of the
conspiracy."
For these reasons, there was sufficient evidence for a
jury to convict Henry and Osaretin of bank fraud and conspiracy to
commit bank fraud.
- 12 -B. Jury Instruction Challenge
Henry and Osaretin challenge the court's materiality
instruction for the bank fraud charges. Neither Henry nor Osaretin
objected to the materiality instruction given by the district court
and so we review their challenge for plain error.9
With respect to the bank fraud charges, the court
instructed the jury that "false or fraudulent pretenses" means
"any false statement or assertions that concern a material aspect
of the matter in question." Then, it instructed the jury that
"[a] 'material' fact or matter is one that has a natural tendency
to influence or be capable of influencing the decision of the
decision-maker to whom it was addressed."
Henry and Osaretin argue to us that the district court's
materiality instruction was plainly erroneous because it was
overbroad. The brothers contend that the district court should
have instructed the jury that "a misrepresentation is material
only if the truth would have resulted in a different outcome." To
9 Unpreserved challenges to jury instructions are reviewed
for plain error, meaning that they must show "(1) that an error
occurred (2) which was clear or obvious and which not only
(3) affected the defendant's substantial rights, but also
(4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings." United States v. Vega, 813
F.3d 386, 396 (1st Cir. 2016) (quoting United States v. González– Vélez, 466 F.3d 27, 34–35 (1st Cir. 2006)). "[T]he plain error
hurdle, high in all events, nowhere looms larger than in the
context of alleged instructional errors." United States v.
Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001).
- 13 -reach this conclusion, Henry and Osaretin argue that the higher
standard for materiality from Maslenjak v. United States applies
to the bank fraud statute. 582 U.S. 335, 347 (2017). The
government counters that the materiality instruction was not
plainly erroneous because it was consistent with this court's
precedent in United States v. Moran, 393 F.3d 1 (1st Cir. 2004),
and, moreover, the standard in Maslenjak is inapplicable.
We find that Henry and Osaretin failed to carry their
burden in proving that the district court plainly erred when it
gave the materiality instruction. As given, the court's
instruction was consistent with Moran, and correctly stated the
controlling law on materiality. Like the district court's jury
instruction, Moran states "[m]ateriality requires only that a
false or omitted statement have a natural tendency to influence,
or is capable of influencing the decision of the decisionmaking
body to which it was addressed." 393 F.3d at 13 (citation
modified). Moreover, the brothers' argument depends on the premise
that Maslenjak applies here, but this circuit has not adopted
Maslenjak's materiality standard -- which applied to convictions
premised on false statements made to immigration officials under
18 U.S.C. § 1425(a) -- in bank fraud prosecutions. See 582 U.S.
at 341. Because the brothers do not point to "binding on-point
precedent" to support their position, the brothers cannot satisfy
- 14 -the plain error standard, and our inquiry ends there. See United
States v. Langston, 110 F.4th 408, 419 (1st Cir. 2024).
C. The Jury's Questions about Conspiracy
Henry and Osaretin also argue that the district court
incorrectly instructed the jury in response to its questions about
the conspiracy charges. The parties dispute whether this challenge
was raised to the district court and therefore which standard of
review applies; as we will explain, we need not decide that
question because the brothers' arguments fail under either
standard.
For context, the superseding indictment charged Henry
and Osaretin with conspiracy to commit bank fraud and money
laundering. It stated that Henry and Osaretin "conspired with
each other and with others known and unknown to the Grand Jury to
commit" bank fraud and money laundering.
The district court instructed the jury at the close of
evidence that the government had to prove that: "the agreement
specified in the indictment, and not some other agreement or
agreements, existed between at least two people to commit bank
fraud"; "the defendant willfully joined in that agreement"; and
"one of the conspirators committed an overt act during the period
of the conspiracy in an effort to further the purpose of the
conspiracy." The district court instructed the jury that these
- 15 -elements of conspiracy applied to both the conspiracy to commit
bank fraud and the conspiracy to commit money laundering counts.
With that background, we turn to the questions the jury
asked during deliberations about the conspiracy charges. The jury
sent this note to the court:
[P]er the indictment, did the Government need
to prove beyond a reasonable doubt that Henry
conspired w[ith] Osaretin and that Osaretin
conspired with Henry? OR is evidence that
they both had individual agreements w[ith]
other co-conspirators sufficient? In other
words, does the "at least two people" to
commit money laundering have to include the
defendants conspiring with each other[?]
After receiving the note, the court discussed the jury's
questions with counsel outside the presence of the jury. After
the court informed counsel how it intended to answer the jury's
questions, the brothers' counsel objected.
The district court then brought the jury back and said:
So in response to your question, you must find
that the government proved the conspiracy as
charged in Counts 3 and 4 beyond a reasonable
doubt, and you have that indictment. You can
find Henry Omoruyi guilty even if you find
Osaretin not guilty, and vice versa. Of
course, you can find them or you must find
them both not guilty if you find the case
against them hasn't been proven beyond a
reasonable doubt. Therefore, you do not need
to find that they conspired with each other so
long as the government has proven beyond a
reasonable doubt that the defendant conspired
with at least one other person as charged in
the indictment, which you have.
- 16 -Before us, Henry and Osaretin argue that the court's
response to the jury's questions permitted the jury to convict
them of "separate conspiracies," despite being charged with a
single bank fraud conspiracy and a single money laundering
conspiracy in the indictment. In the alternative, Henry and
Osaretin argue that the instruction was an abuse of discretion
because it confused or misled the jury. The government, on the
other hand, contends that the district court did not err because
the instruction foreclosed the possibility that the jury could
convict Henry and Osaretin of different conspiracies than those
charged in the indictment.
The parties dispute whether Henry and Osaretin preserved
this issue -- and therefore what standard of review applies -- but
we need not decide this question because the brothers lose under
either standard of review. Accordingly, we will review the
brothers' argument under the standard for preserved instructional
errors, which is more favorable to them. See United States v.
Jadlowe, 628 F.3d 1, 14 (1st Cir. 2010) (citation modified). When
reviewing a preserved instructional error, "we consider de novo
whether an instruction embodied an error of law, but we review for
abuse of discretion whether the instructions adequately explained
the law or whether they tended to confuse or mislead the jury on
the controlling issues." Id. Moreover, we are obligated to
"examine the jury [instructions] as a whole in order to determine
- 17 -whether the district judge clearly conveyed the relevant legal
principle." United States v. Gonzalez, 570 F.3d 16, 21 (1st Cir.
2009). When examining the instructions, "we must also be mindful
that the district court has considerable discretion in how it
formulates, structures, and words its jury instructions." Id.
(citation modified).
We think the district court's answer to the jury's
conspiracy questions was neither a misstatement of law nor an abuse
of discretion. When looking at the conspiracy instructions as a
whole, it did not misstate the law. Instead, the initial jury
instruction accurately conveyed what the law is, explaining, for
instance, that to find Henry and Osaretin guilty of conspiracy,
the government had to prove that: "the agreement specified in the
indictment, and not some other agreement or agreements, existed
between at least two people to commit bank fraud"; "the
defendant[s] willfully joined in that agreement"; and "one of the
conspirators committed an overt act during the period of the
conspiracy in an effort to further the purpose of the conspiracy."
Then, the court's answer to the jury's questions reminded the
jurors of the conspiracy crimes "as charged in the indictment" not
once but twice.10 Furthermore, as Henry and Osaretin concede in
10 The district court's answer instructed the jury that,
"[they] must find that the government proved the conspiracy as
charged . . . beyond a reasonable doubt, and [they] have that
indictment." It also instructed the jury that "[they] do not need
- 18 -their briefs, the district court's answer correctly conveyed that
the jury could have acquitted Henry but convicted Osaretin, or
vice versa, and in that instance, the jury would have found that
Henry and Osaretin had not conspired with each other. As for the
brothers' argument that the instruction confused or mislead the
jury, we presume that the jury follows instructions, and here, the
instructions were sufficiently clear especially when the
instructions spelled out the elements required to prove conspiracy
and reminded the jury of the crime as charged in the indictment.11
See United States v. Correia, 55 F.4th 12, 43 (1st Cir.
2022)(holding that the defendant did not overcome the presumption
that juries follow instructions).
D. Sentencing Enhancement Under USSG § 2B1.1(b)(11)
Next, Henry and Osaretin contend that the district court
procedurally erred when it applied an authentication enhancement
to find that [Henry and Osaretin] conspired with each other so
long as the government has proven beyond a reasonable doubt that
the defendant conspired with at least one other person as charged in the indictment, which [they] have."
11 Henry and Osaretin also state, without support or citation,
that the district court's answer to the jury's questions could be a constructive amendment or a prejudicial variance but that they
only need to argue that it was an error of law. Because the brothers did not develop this argument, it is waived. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").
- 19 -at sentencing, an issue which the brothers preserved for our
review.12
The district court applied a two-level authentication
enhancement under USSG § 2B1.1(b)(11)(A)(ii) for Henry and
Osaretin's use of fake passports. This section of the sentencing
guidelines requires a two-level increase to the offense level "[i]f
the offense involved (A) the possession or use of
any . . . (ii) authentication feature." USSG § 2B1.1(b)(11)(A).
The brothers argue that the district court committed
procedural error at sentencing by applying a two-level enhancement
to their offense levels under USSG § 2B1.1(b)(11)(A). They
contend that the presentencing reports' offense conduct sections
do not support that they possessed or used authentication features.
The government, on the other hand, counters that the sentencing
enhancement was supported because the fake passports used by the
brothers contained authentication features.
The district court's application of an enhancement under
USSG § 2B1.1(b)(11)(A)(ii) was not error. Under the comments to
subsection (A)(ii), an "authentication feature" is a means of
This court reviews preserved claims of sentencing error for
12
abuse of discretion. United States v. Leach, 89 F.4th 189, 195
(1st Cir. 2023). Under this standard, we "afford de novo review
to the sentencing court's interpretation and application of the
sentencing guidelines, assay the court's factfinding for clear
error, and evaluate its judgment calls for abuse of discretion."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
- 20 -identification that is used to determine whether a document is
counterfeit or falsified, and that is what the unique identifying
numbers are on passports. See USSG § 2B1.1 cmt. n.10(A) (adopting
the definition of "authentication feature" from 18 U.S.C.
§ 1028(d)(1)). Turning to the at-issue passports in this case,
they both display unique identifying numbers.
The record also establishes that Henry and Osaretin
possessed or used the fake passports in order to secure the bank
accounts they then used to steal funds connected to the charged
offenses. For instance, the offense conduct section of Henry's
presentence report states that one of the names on Henry's fake
passports was "Clifford Bernard," that he opened four bank accounts
in the name "Clifford Bernard," and that fraudulent proceeds were
deposited in those accounts. The offense conduct section of
Osaretin's presentencing report similarly states that one of the
names on Osaretin's fake passports was "Nelson Bright," that he
opened six accounts in the name "Nelson Bright," and that
fraudulent proceeds were deposited in those accounts. For all of
these reasons, the district court did not err when it ordered a
two-level increase to the offense level under
USSG § 2B1.1(b)(11)(A)(ii) for the use or possession of fake
passports.13
Because the district court's application of an enhancement
13
under USSG § 2B1.1(b)(11)(A) was not error, this court need not
- 21 -E. Jurisdiction to Enter the Restitution Orders
Henry and Osaretin contend that the district court
lacked jurisdiction to enter restitution orders in their cases.14
To analyze this issue we need to take a look at the
relevant factual and procedural history. Prior to sentencing, the
Probation Office filed presentencing reports proposing a
restitution award of $1,987,761.74 to 144 of the 149 victims
pursuant to the Mandatory Victims Restitution Act ("MVRA"), 18
U.S.C. § 3663A and USSG § 5E1.1(a)(1). In its initial judgment
and sentence, the district court deferred its decision on
restitution until the end of January 2024, which was within ninety
days of imposition of sentence. Henry and Osaretin timely appealed
the initial judgment and sentence. Then, after additional
briefing, the district court held a restitution hearing in April
2024. After the restitution hearing, the district court ordered
restitution for only eleven victims, totaling $615,805.65. The
district court also ordered that Henry and Osaretin were jointly
address the brothers' arguments that in the alternative an
enhancement under USSG § 2B1.1(b)(11)(B) or USSG § 2B1.1(b)(11)(C) would have been error.
14 Neither Henry nor Osaretin objected below to the district
court's jurisdiction to enter the restitution order. However, this court has an independent obligation to examine whether the
district court had jurisdiction. United States v. Naphaeng, 906
F.3d 173, 177 (1st Cir. 2018). We consider whether the district
court had jurisdiction de novo. L. Offs. of David Efron v.
Matthews & Fullmer L. Firm, 782 F.3d 46, 50-51 (1st Cir. 2015).
- 22 -and severally liable for the restitution. Henry and Osaretin then
timely appealed the restitution order.
Henry and Osaretin argue that the appeal of the first
judgment and sentence, which was filed before the restitution
hearing and order, divested the district court of jurisdiction to
enter the restitution order which issued after the restitution
hearing. To reach this conclusion, the brothers rely on this
court's decisions in United States v. Naphaeng, 906 F.3d 173, 177-78 (1st Cir. 2018) and United States v. George, 841 F. 3d 55, 71-72 (1st Cir. 2016).
The government disagrees, arguing instead that the
district court had jurisdiction to enter the restitution order.
The government contends that because the district court indicated
before the sentencing hearing that it would impose restitution but
would defer the amount until a later date, the MVRA and Dolan v.
United States bar Henry and Osaretin's arguments. 560 U.S. 605,
608 (2010). The government also argues that Naphaeng and George
do not undermine its position.
We find that the district court had jurisdiction to enter
the restitution order. The MVRA permits a district court to
postpone determining the victims' damages for up to ninety days
after sentencing when the losses are not ascertainable ten days
prior to sentencing. 18 U.S.C. § 3664(d)(5). The district court
did just that, indicating in its initial judgment that it was
- 23 -deferring restitution until a later date.15 As the Supreme Court
explained in Manrique v. United States, "deferred restitution
cases involve two appealable judgments, not one." 581 U.S. 116,
122-23 (2017). Moreover, our decisions in Naphaeng and George do
not support Henry and Osaretin's arguments. In Naphaeng, this
court held that pursuant to the MVRA, the district court retained
jurisdiction to order amended restitution while the appeal of the
first judgment and sentencing was pending. 906 F.3d at 176-79.
That same holding applies here, and, despite Henry and Osaretin's
contentions, Naphaeng did not hold that the district court only
retained jurisdiction when there was a prior appeal of a
provisional award of restitution.16 Finally, Henry and Osaretin's
reliance on George is misguided. George is a forfeiture case,
and, unlike here, the district court's first judgment did not
actively defer ordering forfeiture, but instead only alluded to
the possibility of ordering forfeiture in the future. United
States v. Carpenter, 941 F.3d 1, 6 (1st Cir. 2019). For these
15 Dolan holds that a district court retains jurisdiction for
more than ninety days if the district court makes clear prior to
the deadline's expiration that it will order restitution. See 560 U.S. at 608. The brothers do not raise an argument that the
district court failed to make this clear, and so we need not
address this point further.
16 Moreover, while it is true that this court in Naphaeng had
stayed the appellant's prior appeal before the district court
entered the amended restitution, the stay only "reinforced" this
court's decision in Naphaeng, and the absence of the stay order
does not dictate the outcome here. See Naphaeng, 906 F.3d at 178.
- 24 -reasons, Henry and Osaretin's appeal of the district court's first
judgment did not strip the district court of jurisdiction to enter
restitution.
F. Restitution
Finally, Henry and Osaretin challenge the district
court's restitution calculation and its order making them jointly
and severally liable. Henry and Osaretin's counsel objected to
the district court's reliance on victim impact statements and FBI
Form 302s ("FBI 302s") to reach its decision. They also objected
to Henry and Osaretin being held jointly and severally liable for
the restitution.17
We begin here by first discussing the brothers'
restitution hearing. As we described earlier, the district court
ordered restitution for only 11 of the victims during the
restitution hearing rather than all 144 victims for whom
restitution was listed in the PSRs. Before the restitution
hearing, the government submitted to the district court victim
impact statements and FBI 302s, which are prepared by an FBI agent
after a victim interview, which detailed the experiences of, and
losses suffered by, some of the victims. At the start of the
17 We review preserved challenges to restitution orders for
abuse of discretion. See United States v. Chiaradio, 684 F.3d
265, 283 (1st Cir. 2012). This court "examin[es] the [district]
court's subsidiary factual findings for clear error and its answers to abstract legal questions de novo." Id.
- 25 -restitution hearing, the district court stated that it would only
order restitution for those "who we know w[ere] harmed personally"
and at the end of the hearing, the district court determined that
restitution was warranted for eleven victims. The eleven victims
to whom the court ordered restitution either testified at trial or
submitted victim impact statements and were interviewed by the FBI
as reflected in FBI 302s.
1. Calculation of Restitution
Henry and Osaretin assert that the government did not
adequately set out that the victims' actual losses were caused by
Henry and Osaretin, contending that the district court should not
have considered the victim impact statements or FBI 302s, and that
the government needed to submit evidence about the origins of the
victims' funds. In connection with these arguments, Henry and
Osaretin posit that some of the victims might have been
participating in the crime, and they would have been incentivized
to give false statements.18 The government disagrees, arguing that
the district court did not err in ordering restitution because the
orders were supported by the victim's trial testimony or the victim
impact statements and FBI 302s.
18 Henry and Osaretin also rely on victim L.C. as an example
of a victim who was involved in the crime and incentivized to give false statements, but, as the government properly contends, the
district court did not order restitution for L.C., and therefore
we need not discuss this argument further.
- 26 -Our review of the sentencing court's restitution award
is deferential. United States v. Simon, 12 F.4th 1, 64–65 (1st
Cir. 2021). We will uphold it as long as the sentencing court's
order "reasonably responds to some reliable evidence." Id.
(citation modified). It is not an exacting standard as a
"restitution award requires only a modicum of reliable evidence."
Id. (citation modified). That being said, we "must resolve any
genuine and material disputes about the fact, cause, or amount of
the loss by a preponderance of the evidence." Id. at 65 (citation
modified).
The district court ordered restitution under the MVRA,
which awards restitution to victims for their actual losses.
United States v. Carrasquillo-Vilches, 33 F.4th 36, 45 (1st Cir.
2022). Under the MVRA, a victim is defined as a "person directly
and proximately harmed" as a result of the offense, and restitution
is ordered only for losses that have an "adequate causal link" to
the offense conduct. 18 U.S.C. § 3663A(a)(2); United States v.
Alphas, 785 F.3d 775, 786 (1st Cir. 2015), superseded on other
grounds by Carrasquillo-Vilches, 33 F.4th 36. When the government
makes a prima facie showing of victims' actual losses, defendants
must point to evidence supporting a specific amount by which to
decrease the restitution -- speculation is not enough. See United
States v. Padilla-Galarza, 990 F.3d 60, 93 (1st Cir. 2021).
- 27 -The district court's restitution order was not made in error
because the normal rules of evidence do not apply to the
restitution hearing -- so the district court properly considered
victim impact statements and FBI 302 statements -- and the
brothers do not cast doubt on the reliability of the restitution
ordered. See United States v. Salas-Fernández, 620 F.3d 45, 47
n.2 (1st Cir. 2010); United States v. Gallardo-Ortiz, 666 F.3d
808, 811 (1st Cir. 2015). The brothers only argue generally that
the victims could have been lying, but that contention alone is
not sufficient to doubt the reliability of the victim impact
statements and FBI 302s. The government made a prima facie showing
of actual loss for the eleven victims because for six individuals,
it submitted trial testimony -- which was given under oath -- and
other record evidence, and for five individuals, it submitted the
FBI 302s and victim impact statements, along with findings from
the Probation Office and bank records. Although FBI 302 statements
are not given to the FBI under penalty of perjury, knowingly lying
to a federal agent is a federal felony punishable by up to five
years in prison under 18 U.S.C. § 1001. Moreover, the brothers
failed to point to any evidence supporting that a different
restitution assessment should have been made -- either by showing
evidence of where reductions should have been taken or by
establishing that any portion of the restitution calculation was
erroneous -- leaving the evidence supporting the restitution award
- 28 -unrebutted. See Padilla-Galarza, 990 F.3d at 93. For these
reasons, the district court did not err when it ordered restitution
to eleven victims.
2. Joint and Several Liability
Henry and Osaretin also argue that the district court
erred by ordering them jointly and severally liable for the
restitution because the district court's answer to the jury's
question about conspiracy invalidated the verdict. Regardless,
they argue, the jury believed they were in separate conspiracies
so they should not be jointly and severally liable. The government
disagrees. The government contends that § 3664(h) of the MVRA
instructs that Henry and Osaretin can be found jointly and
severally liable. It maintains that the court's instructions did
not permit the jury to convict Henry and Osaretin of different
conspiracies.19
This court finds that the district court did not err.
Under the MVRA, "[i]f the court finds that more than [one]
defendant has contributed to the loss of a victim, the court may
make each defendant liable for payment of the full amount of
restitution or may apportion liability among the defendants to
reflect the level of contribution to the victim's loss and economic
19 In connection with this argument, the government also
points to the evidence of Henry and Osaretin exchanging information for accounts with each other before forwarding them to others.
- 29 -circumstances of each defendant." 18 U.S.C. § 3664(h). "A
sentencing court is not required to consider an individual's role
in the offense when awarding restitution." Salas-Fernández, 620
F.3d at 48-49. Here, the district court did not err when it
ordered the defendants jointly and severally liable because it
found that they each contributed to the loss and participated in
the crimes charged. The brothers are thus liable for the full
amount of the restitution and the court had no responsibility to
apportion (or not apportion) loss. Id. at 49. The order of joint
and several liability was thus not in error.
III. Conclusion
For these reasons, we affirm the district court's
orders.
- 30 -