United States v. Lorene Chittenden
848 F.3d 188
4th Cir.2017Background
- Chittenden, a former GMM loan officer (1999–2008), was indicted for conspiring to submit fraudulent mortgage applications and for multiple bank fraud counts; jury convicted her of conspiracy and ten bank fraud counts.
- Government obtained an ex parte pretrial restraining order freezing all of Chittenden’s assets (except $40,000 already paid to her lawyers).
- Trial evidence centered on "stated loans" prepared for first-time Hispanic buyers and implicated Rosita Vilchez and her realty firm, with testimony from 27 witnesses including realtors and borrowers.
- At sentencing (Oct 3, 2014) the court imposed 42 months’ imprisonment but did not enter a forfeiture order; it noted forfeiture would be determined and later amended the judgment as a partial judgment.
- Over the following year the court entered a money judgment for $1,513,378.82 and a substitute-asset forfeiture order for $1,032,378.82; Chittenden appealed, raising Sixth Amendment, sufficiency, evidentiary, indictment-variance, jurisdictional, and substitute-asset challenges.
Issues
| Issue | Chittenden's Argument | Government's Argument | Held |
|---|---|---|---|
| Pretrial asset restraint violated Sixth Amendment right to counsel of choice | Restraint of untainted funds prevented her from paying/using preferred counsel, violating Luis | She retained and used Williams Mullen (her chosen firm) throughout; restraint did not deprive her of counsel of choice | No Sixth Amendment violation; Luis inapplicable because she kept counsel of choice |
| Sufficiency of evidence for conspiracy conviction | Evidence insufficient to prove she willfully joined a conspiracy | Coconspirator and borrower testimony plus applications show she knowingly participated | Evidence sufficient; conviction affirmed |
| Admission of coconspirator hearsay (Linares loan/fax) | Ramos’s out-of-court statements and fax cover were inadmissible hearsay under Rule 801(d)(2)(E) and Rule 403 | Trial evidence tied Ramos and Chittenden to same conspiracy; statements were in furtherance and admissible | No abuse of discretion; even if error, admission was harmless given overwhelming evidence |
| Sufficiency and indictment variance for bank fraud (18 U.S.C. §1344) | Indictment alleged Cardinal Bank granted loans; evidence showed GMM actually funded loans—constructive amendment and §1344(2) not met | Loans funded via GMM’s line of credit with Cardinal; fraudulent applications naturally induced Cardinal to part with funds | §1344(2) satisfied; no fatal variance or prejudice; convictions upheld |
| Jurisdiction to enter post-judgment forfeiture | Court lost jurisdiction by entering sentencing judgment without forfeiture and could not amend later | Defendant had notice at sentencing that forfeiture would be ordered; Rule 32.2 timing is not jurisdictional per Martin | District court retained jurisdiction to enter preliminary and final forfeiture orders; forfeiture upheld |
| Substitute-assets forfeiture liability | Co-conspirators’ dissipation/commingling should not be attributed to her for substitute-asset seizure | Vicarious liability for reasonably foreseeable coconspirator conduct; statutory scheme supports substitute forfeiture | Substitute-asset order proper; vicarious attribution affirmed |
Key Cases Cited
- United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) (deprivation of counsel of choice is structural error)
- Luis v. United States, 136 S. Ct. 1083 (2016) (plurality) (pretrial restraint of untainted assets can violate Sixth Amendment right to counsel of choice)
- Loughrin v. United States, 134 S. Ct. 2384 (2014) ("by means of" requirement satisfied when false statement naturally induces a bank to part with money)
- United States v. Martin, 662 F.3d 301 (4th Cir. 2011) (timing requirements in Rule 32.2 are not jurisdictional; sentencing court retains jurisdiction if defendant had notice forfeiture would be ordered)
- United States v. McHan, 345 F.3d 262 (4th Cir. 2003) (criminal forfeiture and substitute-assets principles in conspiracy context)
- United States v. Bollin, 264 F.3d 391 (4th Cir. 2001) (vicarious liability for reasonably foreseeable coconspirator conduct relevant to forfeiture)