Case: 12-11085   Date Filed: 07/31/2013   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-11085
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 4:09-cr-00006-CAP-WEJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

HOWARD GREGORY CORDELL,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (July 31, 2013)

Before HULL, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Howard Cordell appeals his conviction for bank fraud in violation 18 U.S.C.

§ 1344. On appeal, Cordell argues that: (1) the district court erroneously denied

his motions to dismiss the indictment for lack of jurisdiction; and (2) the district

court erroneously imposed restitution. For the reasons set forth below, we affirm

Cordell’s conviction and sentence.

                                           I.

      In January 2011, a federal grand jury returned a second superseding

indictment, charging Cordell with several offenses, including two counts of bank

fraud in violation of 18 U.S.C. § 1344. As to Count 3, one of the bank fraud

charges, the indictment alleged that, on or about August 13, 2004, Cordell

executed a scheme to defraud Washington Mutual Bank (“Washington Mutual”), a

financial institution. Specifically, Cordell obtained a mortgage from Washington

Mutual for $1,000,000 to refinance the purchase of a house. He obtained the

mortgage through an application and related financial disclosure forms in which

he: (1) falsely inflated his annual income; (2) misrepresented his assets; and

(3) concealed financial liabilities.

      Although Cordell was represented by counsel, he filed a pro se motion to

dismiss the indictment for lack of jurisdiction. He raised numerous arguments in

support of his motion, including that the indictment failed to identify a statute that

authorizes the district court to adjudicate a criminal matter over a citizen of “a


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Sovereign State of the Union.” He further argued that Title 18 is unconstitutional

because it was never properly voted into law by Congress, and, thus, the district

court lacks jurisdiction under 18 U.S.C. § 3231 to adjudicate his case. He also

claimed that the criminal statutes referenced in the indictment exceed the federal

government’s enumerated powers and violate federalism principles under the

Tenth Amendment. Subsequently, Cordell filed a pro se amended motion to

dismiss the indictment, raising similar jurisdictional arguments.

      The district court denied Cordell’s motions to dismiss, noting that each of

his challenges to the court’s jurisdiction has been raised and repeatedly rejected by

courts. Cordell was charged with violations of federal law, and, thus, the United

States has jurisdiction over this criminal action. Additionally, Cordell’s argument

that § 3231 was never properly enacted “has many times over been shown to be

frivolous,” and his Tenth Amendment challenge is also meritless. Because his

arguments were meritless, the court denied his motions to dismiss the indictment.

      Subsequently, pursuant to a written plea agreement, Cordell pled guilty to

Count 3, which charged him with bank fraud. The agreement provided that, if the

court approved of the “binding plea agreement,” Cordell would receive a 27-month

sentence. Further, the plea agreement contained a limited appeal waiver, stating

that Cordell waived his right to appeal except that he may appeal the district

court’s ruling on his jurisdictional motions to dismiss and its decision as to the


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amount of restitution. The agreement further provided that Cordell would pay full

restitution to all victims of his offense.

      According to the presentence investigation report (“PSI”), Cordell was a

realtor and real estate developer and, in March 2003, he bought a house located at

179 Old Mill Road in Cartersville, Georgia (the “Old Mill Road property”) from

Steve Hatley. The property was listed with a sales price of $950,000, and Cordell

agreed to buy it with the condition that Hatley inflate the price by $307,000 and

give the additional mortgage money to Cordell. Cordell obtained a mortgage of

approximately $1,244,000 from Washington Mutual.

      In August 2004, Cordell refinanced the Old Mill Road property, and he

obtained a mortgage from Washington Mutual for $1,000,000. His mortgage

application contained false claims about his income and assets. Subsequently, on

September 1, 2004, the property was destroyed by arson, and Cordell never made a

payment on the new mortgage. In November 2004, Cordell’s insurance carrier,

Pacific Indemnity Insurance (“Pacific Indemnity”), paid the mortgage with

Washington Mutual in full with a check in the amount of $1,005,804.20. Pacific

Indemnity did not attempt to obtain the title to the property pending its

investigation into the arson, and it was not aware that Georgia law required

Washington Mutual to release its lien within 60 days of the loan repayment.

Washington Mutual discharged its lien in January 2005. In October 2005, after the


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lien was lifted, Cordell sold the Old Mill Road property for $900,000, and he kept

a portion of the proceeds and used the rest to pay debts and expenses. The PSI

indicated that $1,269,500 was the actual loss for Sentencing Guidelines and

restitution purposes. Specifically, Cordell received this money as a result of his

fraudulent conduct in the two financing transactions of the Old Mill Road property

and from his sale of the property after the arson. The PSI stated that Pacific

Indemnity paid all claims resulting from the arson and should receive the full

restitution amount.

      The PSI also included information about related civil litigation. In August

2005, Cordell sued Pacific Indemnity in federal court, and the case went to trial.

On April 9, 2008, the jury entered a verdict in favor of Pacific Indemnity, and the

court entered judgment against Cordell in the amount of $1,055,804.20, plus

$58,311.50 in costs, resulting in a total award of $1,114,115.70. Ultimately, the

PSI indicated that restitution in the amount of $1,269,500 should be paid to Pacific

Indemnity. The PSI noted that Cordell’s binding plea agreement provided for a

27-month sentence.

      Cordell objected to the PSI’s factual description of his offense to the extent

that it related to the loss calculation and restitution amount. As to restitution,

Cordell asserted that the loss in this case did not result from his conduct but,

instead, it resulted from Pacific Indemnity’s failure to protect its interest in the


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property. According to Cordell, he pledged the property that was obtained through

the bank fraud as collateral, and, under “crediting rules,” he is entitled to a credit in

the amount of the value of the collateral. Cordell asserted that he should not be

held responsible because Pacific Indemnity lost its interest in the property either

intentionally or through neglect. Finally, Pacific Indemnity received a judgment

against Cordell that is more than sufficient to cover the restitution amount.

      At sentencing, Cordell reasserted his objection to the imposition of

restitution, arguing that, at the time when the property transaction occurred, Pacific

Indemnity had an “absolute right to take a security interest in the real estate which

served as collateral for [the] loan.” Because the company abandoned its right to

foreclose on the property, either through negligence or an intentional act, it should

not receive any restitution.

      The court clarified that Cordell’s argument was that “when the insurance

company paid off the bank, they failed to take a security interest in the property.”

Cordell asserted that, even though he “pocketed” the $900,000 from selling the

property, Pacific Indemnity should not recover its losses. The court disagreed, and

it overruled his objection that Pacific Indemnity was not entitled to restitution.

      Subsequently, the government presented evidence related to the amount of

Pacific Indemnity’s loss, including testimony from A.J. Singh, a special agent with

the Federal Bureau of Investigation (“FBI”) who investigates fraud cases. The


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government also submitted the check that Pacific Indemnity wrote to Washington

Mutual, which was in the amount of $1,005,804.20.

      The court found that, based on the preponderance of the evidence, the loss

and restitution amount was $1,005,804.20. In sentencing Cordell, the court noted

that his binding plea agreement provided for a sentence of 27 months. Ultimately,

the court sentenced Cordell to 27 months’ imprisonment, 5 years’ supervised

release, and $1,005,804.20 restitution.

                                          II.

      “We review a district court’s denial of a motion to dismiss the indictment for

an abuse of discretion.” United States v. Clarke, 

, 1345 n.1 (11th

Cir. 2002). Further, we review jurisdictional issues de novo. United States v.

Lopez, 

, 1311 (11th Cir. 2009). Under § 3231, the district court has

original jurisdiction over “all offenses against the laws of the United States.” 18

U.S.C. § 3231.

      An appellant abandons an issue where he fails to develop any argument on

the issue in his initial appeal brief. See United States v. Woods, 

,

1064 n.23 (11th Cir. 2012) (deeming an issue abandoned where the appellant failed

to develop any argument on the issue in his opening brief). Thus, “[w]e may

decline to address an argument where a party fails to provide arguments on the




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merits of an issue in its initial or reply brief.” United States v. Gupta, 

, 1195 (11th Cir. 2006).

      In the district court, Cordell filed two pro se motions to dismiss the

indictment, raising numerous challenges to the district court’s jurisdiction over his

criminal prosecution. In his opening appeal brief, Cordell asserts that he would

like to pursue his arguments that the indictment should be dismissed because:

(1) the United States has no statutory authority to prosecute criminal cases; (2) the

indictment failed to allege an injury or identify an injured party; (3) due to

legislative irregularities in 1947 and 1948, the entirety of Title 18 is void; and

(4) the indictment violated the Tenth Amendment. However, Cordell fails to

develop any supporting arguments regarding the merits of these conclusory

assertions. Instead, he merely notes that he made these arguments before the

district court and that the court rejected them, but he does not cite to any legal

authority to support his claims or explain why the district court erred in rejecting

them. In his reply brief, Cordell suggests that he has adequately developed his

arguments because, in his plea agreement, he expressly reserved his right to appeal

the denial of his motions to dismiss the indictment. However, Cordell’s

preservation of his right to an appeal is not relevant to whether he adequately

developed any supporting arguments in his appeal brief.




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      Cordell also claims that, although his opening brief was “succinct,” he made

more than a passing reference to his claims. In fact, a review of his opening brief

shows that Cordell merely lists four jurisdictional claims without further discussion

or analysis. Because Cordell fails to adequately develop any arguments related to

the denial of his motions to dismiss the indictment, we may decline to review this

issue. See 

n.23; 

.

      Regardless, even if Cordell had not abandoned this issue on appeal, the

district court did not err in rejecting his jurisdictional challenges to the indictment.

Cordell was charged with violating 18 U.S.C. §§ 1344, 1014, and 1957, all of

which are offenses against the United States. As such, the district court had

jurisdiction over his criminal prosecution or those offenses. See United States v.

Romero–Galue, 

, 1150–51 n. 10 (11th Cir.1985) (noting that the

district court “obviously had subject matter jurisdiction” because Congress,

pursuant to § 3231, “conferred upon the federal district courts the power to

adjudicate all cases involving crimes against the United States”).

                                          III.

      We review de novo the legality of a restitution order, but we review for clear

error the underlying factual findings relevant to the order. United States v. Brown,

, 1252 (11th Cir. 2011). A district court’s authority to order

restitution is conferred by statute. 

Restitution Act


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(“MVRA”) requires the district court to order a defendant to pay full restitution if

he is convicted of an offense in which an identifiable victim has suffered a

pecuniary loss. 18 U.S.C. § 3663A(a)(1), (c)(1)(B); 

. To

be a “victim” under the MVRA, the entity must have suffered a harm that “directly

and proximately” results from the commission of the defendant’s offense. United

States v. Robertson, 

, 1334 (11th Cir.2007) (quotations omitted).

The MVRA requires that the government establish the amount of a victim’s loss by

a preponderance of the evidence. United States v. Futrell, 

, 1290

(11th Cir. 2000); 18 U.S.C. § 3664(e).

      As with his jurisdictional challenges, Cordell fails to adequately develop any

arguments in his opening appeal brief to support his claim that the district court

erred in ordering restitution. Specifically, he merely states some of his arguments

before the district court and notes the court’s rulings without further explaining his

arguments on appeal or citing any statutes or case law related to the imposition of

restitution. Cordell appears to suggest that, because he clearly presented his claims

in the district court, we should review them on appeal. However, as discussed

above, Cordell’s preservation of an issue in the district court does not relieve him

of the obligation to adequately develop arguments on appeal. See 

n.23; 

.




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      Regardless, even if Cordell had not abandoned his claims, he has not shown

that the district court erred in ordering restitution. In the district court, Cordell

argued that Pacific Indemnity is not entitled to restitution because it could have

mitigated its losses by obtaining a security interest in the Old Mill Road property

when it paid the mortgage on the property. Because Pacific Indemnity failed to

seek title to the property, Cordell was able to sell it, and he received the $900,000

proceeds instead of Pacific Indemnity. The PSI states that Pacific Indemnity was

not aware that Washington Mutual would release the lien on the property and that

it delayed seeking the title to the property pending the arson investigation.

Cordell’s argument in the district court was that Pacific Indemnity lost its interest

in the property, either intentionally or through neglect, and, thus, Cordell should

not be required to pay restitution. Further, in his objections to the PSI, Cordell also

argued that restitution was improper because Pacific Indemnity has obtained a civil

judgment for more than the restitution amount.

      The district court did not err in rejecting Cordell’s arguments that Pacific

Indemnity is not entitled to restitution. As an initial mater, Cordell has not

provided, and research does not reveal, any binding authority establishing that a

victim is not entitled to restitution if it does not attempt to mitigate its financial

losses resulting from the defendant’s illegal conduct. Under the MVRA, the

district court was required to order Cordell to pay restitution for the full amount of


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Pacific Indemnity’s loss that “directly and proximately” resulted from his offense.

See 

; 18 U.S.C § 3663A(a)(1); (c)(1)(B). Here, the

government proved by a preponderance of the evidence that Pacific Indemnity

suffered a loss in the amount of $1,005,804.20 as a direct result of Cordell’s bank

fraud scheme. See 

. At sentencing, Agent Singh’s

testimony established that Cordell obtained a mortgage for the Old Mill Road

Property for $1,000,000, he failed to make any payments on the mortgage, and,

after the property burned down, Pacific Indemnity paid the mortgage in full.

Further, the government presented evidence to show that the amount of Pacific

Indemnity’s check for the mortgage was $1,005,804.20. Cordell admitted to

keeping $900,000 in proceeds from selling the property, even though Pacific

Indemnity had paid the mortgage pursuant to his insurance claim.

      Regardless of whether Pacific Indemnity could have attempted to obtain the

title to the property before Cordell sold it, his fraudulent conduct directly and

proximately resulted in Pacific Indemnity’s loss for the full amount that it paid to

Washington Mutual. See 

. Additionally, even though

a civil judgment has been entered against Cordell in Pacific Indemnity’s favor, he

has not alleged, either before the district court or on appeal, that he has paid any

money towards satisfying that judgment. Thus, the district court properly entered a




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restitution order for the full amount of Pacific Indemnity’s loss. 18 U.S.C

§ 3663A(a)(1); (c)(1)(B).

      For the foregoing reasons, we affirm Cordell’s conviction and sentence.

      AFFIRMED.




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