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United States of America v. Simon Saeid Koli (1

April 5, 2013

UNITED STATES OF AMERICA,
v.
SIMON SAEID KOLI (1), DEFENDANT.



The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge

ORDER GRANTING RESTITUTION

On February 13, 2013, the Court held a restitution hearing to determine the amount of restitution owed by Defendant Simon Saeid Koli ("Defendant"). For the following reasons, the Court ORDERS restitution in the amount of $256,627.78 to Barclay's c/o 608 Deutsche Bank NTL TRST CO ("Deutsche Bank"), $246,795.34 to Bank of America c/o Country Home Loans ("Countrywide"), $253,029.11 to Barclay's c/o 440 PMTG STTN Subprime ("PMTG"), and $426,895.03 to Morgan Stanley c/o Saxon Mortgage Services ("Saxon").

BACKGROUND

Defendant and one co-defendant, Kian Ashkanizadeh ("co-defendant"), were indicted on February 2, 2012. [Doc. No. 1.] Defendant and co-defendant obtained fraudulent loans on four properties: 1560 Triton Street ("1560 Triton"); 1564 Triton Street ("1564 Triton"); 1584 Triton Street ("1584 Triton"); and 1572 Triton Street. [Doc. No. 101, Govt.'s Opp. at 4-9.] Defendant ultimately pleaded guilty to count one of the indictment for conspiracy to commit mail fraud, wire fraud, and money laundering, pursuant to a plea agreement. [Doc. No. 110, Judgment at 1; Doc. No. 148, Amended Judgment at 1.] On December 3, 2012, the Court sentenced Defendant to 30 months custody and ordered that he pay restitution, the amount of which to be determined at a later date. [Id. at 1-2.] The Court held a restitution hearing on February 13, 2013.

DISCUSSION

I. Restitution

The Government requests that the Court order: "(1) restitution to Bank of America c/o Country Home Loans in the amount of $258,281.92; to Barclay's c/o 608 Deutsche Bank NTL TRST CO in the amount of $256,627.78; to Barclay's c/o 440 PMTG STTN Subprime in the amount of $253,029.11; and to Morgan Stanley c/o Saxon Mortgage Services in the amount of $427,895.03; and (2) that defendant Koli be held jointly and severally liable to pay restitution with co-defendant and co-conspirator Ashkanizadeh for the same losses." [Doc. No. 101, Sentencing Memo. at 21.]

Defendant under the plea agreement agreed to make mandatory restitution to the victims of the offense in an amount to be determined by the Court. [Doc. No. 85, Plea Agreement at 12; Doc. No. 138, Def.'s Opp. at 2.] Defendant "objects to the alleged losses sought by the Government to be ordered repaid as part of restitution, due in large part to the failure of the Government to meet its burden in proving the appropriate amount of restitution to be ordered and also since the lenders themselves . . . were a cause of their own loss . . . ." [Id.] Defendant argues that the Government has provided "minimal foundation" for the losses alleged by the lenders. [Id.] Defendant requests that the Court offset any alleged loss with any gains, losses attributable to market forces, and causes unrelated to Defendant and the co-defendant. [Id. at 2-3.]

A. Victims

The MVRA requires a court to order restitution to each victim of an offense.

A victim is broadly defined as:

A person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, 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); see United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004). The Government bears the burden of proving that a person or entity is a victim for purposes of restitution. United States v. Wakine, 543 F.3d 546, 556 (9th Cir. 2008).

New Century Mortgage Corporation ("New Century") originally made the loans on all of the properties at issue. New Century subsequently sold the loans on the secondary market. [Govt.'s Ex. 1, KOLI-RESTITUTION-3; Doc. No. 101-1, Govt.'s Mot. at 5.] The victims in this case are readily identifiable as they are the ...


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