UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

United States of America,

Plaintiff, Case No. 15-CR-20382

v. Honorable Victoria A. Roberts

 Magistrate Judge Elizabeth Stafford

D-1 Paul Nicoletti,

 

Defendant.

_________________________/

Government’s Brief in Opposition to 

Defendant’s Motion for Bond Pending Appeal [R.172]

Craig A. Weier (P33261)

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.9678

craig.weier@usdoj.gov

John K. Neal

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.96

craig.weier@usdoj.gov

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Table of Contents

Index of Authorities ........................................................................................ iii

Controlling Authorities..................................................................................... iv

Statement of the Issue ....................................................................................... v

Introduction....................................................................................................... 1

Argument........................................................................................................... 2

A. Nicoletti is unlikely to prevail on appeal. ........................................ 2

1. Sufficiency of the Evidence is Not a Close Question. .......... 3

a. When properly understood, there is no question 

that the trial proofs established that Nicoletti 

and his accomplices intended to “obtain bank 

property.” .................................................................... 5

b. The trial proofs established that Nicoletti and 

his accomplices obtained bank property “by 

means of” false statements. ......................................... 12

2. Variance is not a close question. ........................................... 20

3. Restitution issues are not “. . . substantial questions 

likely to result in a reversal, a new trial, or a reduced 

sentence” and challenging the restitution order for the 

first time in this motion is both frivolous and 

disingenuous. ......................................................................... 25

B. Nicoletti has not shown that he is not a danger to the community....27

Conclusion ........................................................................................................ 29

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iii

Index of Authorities

Jackson v. Virginia, 443 U.S. 307, 319 (1979)................................................. 1

Dole Food Company v. Patrickson, 538 U.S. 468 (2003)................................ 7

Laughrin v. United States, 573 U.S. 351 (2014).................... 4, 5, 12-13, 19

United States v. Banyan, 933 F.3d 548 (6th Cir. 2019) ......................4-8, 12

United States v. Briggs, 939 F.2d 222 (5th Cir. 1991) ........................ 19-20

United States v. Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002).................... 1

United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011).............................. 3

United States v. Hall, 71 F.3d 569, 573 (6th Circuit 1995) ......................25

United States v. Barry Rene Isaacs, Case No.1:19-cr-37 

(SD Ohio, 4/7/2020), 2020 WL 1695155 at *3 .................................. 27

United States v. Keuhne, 547 F.3d 667, 683 (6th Cir. 2008) ......................... 21

United States v. Mize, 814 F.3d 401, 409 (6th Cir. 2016) ............................. 21

United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985)........................ 2

United States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000) ............................. 3

United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001)........................... 3

United States v. Schenberger, 498 F. Supp. 2d 738, 742 (D.N.J. 2007) ...... 27

United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)........................ 3

United States v. Swafford, 512 F3d 833, 842 (6th Cir. 2008) ................... 22

United States v. Webber, 208 F.3d 545, 553 (6th Cir. 2000)............................ 3

18 U.S.C. § 1344(2) ................................................................... 5

18 U.S.C. § 3143(b) (1)..................................................................................... 2

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Controlling Authorities

Jackson v. Virginia, 443 U.S. 307, 319 (1979)

Laughrin v. United States, 573 U.S. 351 (2014)

United States v. Chilingirian, 280 F.3d 704, 709 (6th Cir. 2002)

United States v. Mize, 814 F.3d 401, 409 (6th Cir. 2016)

United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985)

18 U.S.C. § 3143(b)(1)

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Statement of the Issue

Should the Court grant Nicoletti bond pending appeal where there is no 

substantial issue of law or fact likely to result in reversal of his conviction and 

absent clear and convincing evidence that he is not a danger to the community?

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Introduction

Defendant Paul Nicoletti [Nicoletti] stands convicted of conspiracy to 

commit bank fraud and three substantive counts of bank fraud, and is awaiting a 

report date to his designated correctional facility (Morgantown FCI) to begin 

serving his 70-month prison sentence. (R.133: Verdict Form; R.168: Judgment). In 

spite of a statutory presumption to the contrary, Nicoletti argues this Court should 

release him on bond pending appeal. (R.172: Def. Motion for Bond Pending 

Appeal). But it is extremely unlikely that the Court of Appeals will find that no 

rational trier of fact could have found the essential elements of his crimes beyond a 

reasonable doubt, a necessary condition for Nicoletti to prevail on appeal on the 

sufficiency challenge raised here. United States v. Chilingirian, 280 F.3d 704, 709 

(6th Cir. 2002); Jackson v. Virginia, 443 U.S. 307, 319 (1979). Nicoletti’s variance 

argument is likewise insufficient to raise a close question on appeal because 

Nicoletti is unable to demonstrate variance, or any possible prejudice, necessary 

for the Court of Appeals to reverse his convicton. Lastly, Nicoletti has not 

presented clear and convincing evidence that he is not a danger to the community, 

especially in light of his recent perjury, also a condition precedent to bond pending 

appeal. Nicoletti’s motion for bond pending appeal should therefore be denied. 

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Argument

Under 18 U.S.C. § 3143, a Court must order the detention, pending appeal, 

of a person who has been sentenced to a term of imprisonment, except under very 

specific circumstances. Section 3143 “creates a presumption against release 

pending appeal.” Chilingirian, 280 F.3d at 709. In order to grant Nicoletti bond 

pending appeal here, the Court must find: (1) by clear and convincing evidence 

that he is not likely to flee or pose a danger to the safety of any other person or the 

community, and (2) that his appeal will raise a substantial question of law or fact 

likely to result in a reversal, a new trial, or a reduced sentence. 18 U.S.C. 

§ 3143(b)(1). Nicoletti can demonstrate neither, and his motion should therefore be 

denied. 

A. Nicoletti is unlikely to prevail on appeal.

To remain on bond pending appeal, Nicoletti must show “that the appeal . . . 

raises a substantial question of law or fact likely to result in . . . reversal.” 18 

U.S.C. § 3143(b)(1)(B)(i). “[A]n appeal raises a substantial question when [it]

presents a ‘close question or one that could go either way’ and the question ‘is so 

integral to the merits of the conviction that it is more probable than not that 

reversal or a new trial will occur if the question is decided in the defendant’s 

favor.” United States v. Pollard, 778 F.2d 1177, 1182 (6th Cir. 1985). Nicoletti has 

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filed a notice of appeal and, in this motion, argues that two “substantial questions” 

will be presented to the Court of Appeals which are “likely to result in reversal:” 

(1) sufficiency of the evidence; and (2) variance. The government agrees that if 

either of these questions is decided in Nicoletti's favor, reversal would follow. For 

the reasons that follow, however, neither of these issues will present a close 

question to the Court of Appeals. 

1. Sufficiency of the Evidence is Not a Close Question.

On appeal, the court will review de novo whether sufficient evidence 

supports the convictions. United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 

2011). The court must and will affirm the conviction if, “after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court will draw “all 

available inferences and resolve[s] all issues of credibility in favor of the jury’s 

verdict.” United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001). This 

standard is difficult to overcome; it places a heavy burden on the defendant. United 

States v. Prince, 214 F.3d 740, 746 (6th Cir. 2000); United States v. Webber, 208 

F.3d 545, 553 (6th Cir. 2000)(citing United States v. Spearman, 186 F.3d 743, 746 

(6th Cir. 1999))(“A defendant making such a challenge bears a very heavy 

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burden.”). This standard is thus identical to that applied by this Court when 

determining Nicoletti’s three prior motions for judgment of acquittal. (See Docket 

entries of 5/3/19 and 5/7/19; R.161: Order Denying Motion for Judgment of 

Acquittal).

Simply because an issue is complicated, or a record voluminous, does not 

mean the issue is “close.” This Court, in determining whether the reviewing court 

“could go either way,” must assume that it will be competent, will have a working 

knowledge of the necessary facts and a clear understanding of the applicable law. 

Indeed, Nicoletti does not argue that the appellate court could “go either way” 

because it might be mistaken. However, to make this issue seem close, Nicoletti

simplifies and limits the evidence presented at his trial, and provides inadequate 

analysis and ignores the record of the case he says is controlling, United States v. 

Banyan, 933 F.3d 548 (6th Cir. 2019). But Banyan is easily distinguishable, in part 

because the government was aware it was pending before trial and presented its 

case to avoid the issues it posed. Thus, the elements of bank fraud and bank fraud 

conspiracy were fully satisfied by the proofs at Nicoletti’s trial.

Banyan held that the government there failed to prove both that the 

defendants (1) intended to obtain “bank property” and (2) did so by means of false 

pretenses, which, relying on Laughrin v. United States, 573 U.S. 351 (2014), the 

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Banyan Court found were the two essential elements of bank fraud in violation of 

18 U.S.C. § 1344(2). Banyan at 552.

1

a. When properly understood, there is no 

question that the trial proofs established 

that Nicoletti and his accomplices intended 

to “obtain bank property.” 

As to the first element, intent to obtain “bank property,” an understanding of 

the definition of “bank property” is crucial to the analysis. Banyan finds the 

element in Laughrin, which explicitly defines “bank property” to include money in 

the custody or control of an insured financial institution:

First, the clause [§ 1344(2)] requires that the defendant 

intend “to obtain any of the moneys . . . or other property 

owned by, or under the custody or control of, a financial 

institution.” (We refer to that element, more briefly, as 

intent to “obtain bank property.”). 

573 U.S. 351, 355. Thus, when reading Banyan, it is important to understand that, 

whenever the court uses the term “bank property,” it is referring to moneys owned 

by or under the custody or control of a financial institution.

Nicoletti applies, as he has consistently in previous arguments, an 

 

1 Although Nicoletti seems to argue “federal jurisdiction” as a separate issue, 

jurisdiction is established by proof of Laughrin’s first element of the offense: the 

intent to “obtain bank property” as the Supreme Court defines it. The case Nicoletti 

relies on in support of this posisiton, United States v. Slovacek, 867 F.2d 842 (5th

Cir. 1989) involved the bank robbery statute and has nothing to do with 18 U.S.C. 

§ 1344. 

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erroneous definition of “bank property.” Instead of Laughrin’s definition, Nicoletti

argues, without authority, that “bank property” means only property owned by the 

financial institution. (See R. 172: Motion for Bond at 7, 12; R.147: Reply to 

Government’s Response to Defendant’s Motion for Judgment of Acquittal at 5-6, 

9, 11). But this construction amends 18 U.S.C. § 1344(2) itself, and would make it 

superfluous, limited only to conduct already proscribed by § 1344(1) (i.e., a 

scheme to defraud a financial institution). That is decidedly not the definition of 

bank property underlying Banyan. Rather, “intent to obtain bank property” means 

intent to obtain money or other property “owned by, or under the custody or 

control of, a financial institution.” 573 U.S. at 355. 

Viewing Banyan with this correct understanding of the term “bank property” 

demonstrates its substantial difference from this case. The court there held that the 

government failed to prove the defendants intended to obtain “bank property” (i.e., 

property owned by or under the custody or control of a financial institution because 

it was relying entirely on the lenders’ status as wholly owned subsidiaries of the 

insured financial institutions, and inferences it claimed could be drawn from that 

status, which the court rejected as “nearly frivolous” based on “ ‘. . .[a] basic tenant 

of American corporate law. . .that the corporation [here, the mortgage companies] 

and its shareholders [here, the banks] are distinct entities.’ ” Banyan at 552, 

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quoting Dole Food Company v. Patrickson, 538 U.S. 468 (2003). The Banyan

court underscored that the government offered “no evidence, for example, that 

either of the parent banks funded the loans and that the defendants were aware of 

such funding.” Banyan at 553. Rather, the court emphasized, the government 

argued that the parent banks “owned” the funds used in the loan because the parent 

banks “owned the companies” and because losses incurred by the mortgage 

companies flowed directly up to their parents. Banyan at 554. The court rejected 

these arguments, citing corporate law principles that shareholders do not own their 

corporation’s assets and the statutory text that the defendants must intend to obtain 

bank property, not merely diminish its value. Id.

The dearth of evidence of the source of the loans on the record in Banyan is

highlighted by the government’s argument on the “custody or control” issue in that 

case. It argued only that “the jury could reasonably assume that the parent 

company has some duty to protect the funds of its wholly owned subsidiary and, 

moreover, has the power and authority to guide or manage those funds.” Id. But the 

court noted that the government provided neither authority nor an evidentiary basis 

for these propositions. Id. Had there been direct evidence that the loan proceeds 

came from accounts at federally insured financial institutions, surely the 

government would have argued it to the court. Moreover, all three opinions in 

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Banyan (Judge Kethledge for the court, Judge Oliver’s concurrence, and Judge 

Siler’s dissent) reference only the scantest evidence to suggest that the proceeds 

came from an insured bank, specifically, a few checks issued to a bank to repay 

one of the loans, and a vague admission by a defendant’s ex-wife that the money 

came “from a bank.” This is the only evidence in the record of the source of the 

loans.

In sharp contrast to the trial record in Banyan, the government here never 

relied on the parent/subsidiary relationship of Fifth Third Bank and Fifth Third 

Mortgage Michigan. Rather, the record here is replete with both testimony and 

documentary evidence showing conclusively that the loan proceeds were in the 

custody of an insured bank at the time of their release from the bank to Nicoletti’s 

title company. That evidence is summarized in the Government’s Response to the 

Defendant’s Motion for Judgment of Acquittal (R. 145 at 7-10), and includes:

 Testimony of Albert Cliffel, Corporate Tax Director for Fifth Third 

Bank, that all loan proceeds at issue were in the custody of either 

Fifth Third Bank Michigan or Fifth Third Bank Ohio when the 

proceeds were released to Continental Title;

 Government Exhibits 78 and 79 showing two cashier checks issued 

by “Fifth Third Bank (Eastern Michigan)” totaling $1,824,156.05 

(verified by Cliffel as drawn on account of Fifth Third Bank 

Michigan), were used to fund the Scott Lucia Loan (Counts 1 and 4 

of the indictment) with a deposit slip showing Nicoletti deposited the 

proceeds checks into his Continental Title account;

 

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 Government Exhibits 15, 24 and 49 (Continental Title Fifth Third 

Bank Account Statements) showing proceeds of all six loans 

entering Continental Title Fifth Third Bank Michigan account 

(verified as a Fifth Third Michigan Bank account by Cliffel) and 

disbursement of loan proceeds. 

There is even more evidence that Nicoletti intended to obtain bank property

as that phrase is properly understood: Nicoletti himself distributed the loan 

proceeds from a Fifth Third Michigan bank account, pursuant to his role in the 

conspiracy, to himself and his co-conspirators/accomplices. A plethora of evidence 

showed that the loan proceeds flowed into his Continental Title account at Fifth 

Third Bank Michigan, and were then disbursed by Nicoletti, the title company 

owner, to himself and his accomplices/co-conspirators including Tyrone Hogan 

(dba Rockridge Holdings), Matthew Flynn (dba Flynn Financial), Alan Lucia 

(personally and dba Direct Financial), and Robert Hance (dba Executive Estate 

Builders). (See, R.152: Testimony of S.A. Christine Taylor at 14-49 (Page ID 

1778-1813)(distribution of loan proceeds from Nicoletti’s Continental Title 

account); Government Exhibits [GE] 14, 23, 35, 48, 64, 77 (partial disbursement 

charts)).

Nicoletti erroneously argues that the disbursements to himself and his 

accomplices/co-conspirators from the Continental Title account occurred “after the 

fraud had been completed,” (R.172: Motion for Bond at 13). But just because the 

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loan proceeds had been transferred to Nicoletti’s Continental Title Fifth Third 

account as the title agent of the lender does not mean that the fraud scheme was 

complete. Quite the contrary, these further disbursements were key to the scheme’s 

success, which relied on the knowing assistance of the title agent (Nicoletti). As 

alleged in the indictment:

It was part of the scheme and conspiracy that 

D-1 PAUL NICOLETTI would knowingly facilitate the 

fraudulent real estate transactions by acting as the title 

agent, coordinating and conducting the real estate 

closings, preparing the HUD-1 Settlement Statements, 

and disbursing the proceeds of the mortgage loans. . .

(emphasis added)(R.1: Indictment at p.5, ¶11).Indeed, the scheme would have 

been entirely useless to Nicoletti and his accomplices were they unable to obtain 

the proceeds of the fraudulent loans. The disbursement by Nicoletti from the 

Continental bank account at Fifth Third Bank was the entire object of the scheme. 

Additionally, as to intent to obtain bank property, although Banyan and 

Loughrin do not clearly require that a defendant know that the subject money was 

in the custody of a bank (as opposed to intending to obtain money which was, in 

fact, in the custody of a bank), even if they did, the evidence presented at trial 

established that Nicoletti clearly knew that the money funding the loan proceeds 

was in the custody of a bank. First, the funds he received for the Scott Lucia loan 

came directly to him from the insured institution in the form of two Fifth Third 

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Bank Michigan cashiers checks, which he personally deposited into his Continental 

Title account. (See also R.146: Nicoletti testimony at 83, page ID 1456). Thus, at a 

minimum, there is direct evidence that Nicoletti knew that this money which he 

and his accomplices intended to take, and the subject of Counts One and Four, was 

“bank property.” The money funding the other loan transactions was directly wired 

into Nicoletti’s Continental Title Account and, although the sources are not 

explicitly identified in the bank statements, it can be reasonably inferred that those 

funds, like the Lucia funding, came from a bank. Indeed, it is difficult to conceive 

of any way millions of dollars of loan funding could be transferred into a title 

company’s bank account without involving the services of a bank. 

Moreover, the trial evidence established that Nicoletti had been an attorney 

for 14 years leading up to these offenses who had “always been involved in real 

estate law” and had owned two title companies for approximately 16 months when 

these offenses occurred. (R.146: Nicoletti Testimony at 54-55, Page ID 1427-28, 

11, Page ID 1384). From this evidence alone, any reasonable juror could infer that 

Nicoletti knew that the money funding mortgage loans was in the custody of banks 

before being released to the title company. Certainly, he knew beyond doubt that 

the money he disbursed from Continental’s Fifth Third Bank account to himself 

and his accomplices as the corrupt title agent of the lender was in the custody of a 

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Fifth Third Bank.

b. The trial proofs established that Nicoletti

and his accomplices obtained bank property 

“by means of” false statements. 

Banyan also found insufficient evidence on the second element of bank 

fraud: that the defendant obtained bank property “by means of” false pretenses or 

representations. Banyan at 555. Reading “by means of” in 18 U.S.C. § 1344(2) to 

include only “frauds in which a false statement will naturally reach a bank,” 

Banyan held that the government failed to prove this element because it presented 

“. . . no evidence that any of the misrepresentations on the loan applications ever 

reached the ears of anyone in the parent banks.” Id. 

This gloss on “by means of” came from the Supreme Court’s decision in 

Loughrin.

2 Loughrin involved a simple fraud scheme: the presentation of stolen, 

forged checks to a Target store (the false statements) for merchandise later 

refunded for cash. 573 U.S. at 353-54. The Court held that even this simple scheme 

satisfied the “by means of” element in § 1344(2). Id at 363, n.9. The Court 

recognized that any limiting definition of “by means of” must be flexible to fit 

 

2 The discussion of the “by means of” clause limiting the scope of the statute arose 

only in response to the defendant’s argument that the Court needed to inject a new 

element, “intent to defraud a bank,” into 1344(2) to prevent its application to 

“pedestrian” frauds that did not involve banks at all. 573 U.S. at 363-64.

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other, more complex, fraud schemes:

Language like “by means of” is inherently elastic: It does 

not mean one thing as to all fact patterns—and certainly 

not in all statutes, given differences in contexts and 

purpose. All we say here is that the phrase, as used in § 

1344(2), is best read for the federalism-related reasons 

we have given. . .as drawing a line at frauds that have 

some real connection to a federally insured bank–namely, 

frauds in which a false statement will naturally reach 

such a bank (or custodian of the bank’s property). 

573 U.S. at 364, n.8.

Like the forged check presented to Target in Loughrin, and unlike the 

mortgage fraud scheme in Banyan, the mortgage fraud scheme here “had a real 

connection to [the] federally insured bank.” Indeed, the scheme here had an even 

more direct connection to the bank. It involved false statements made directly to 

the bank in order to allow Nicoletti and his accomplices to obtain money in its

custody. 

A more detailed review of the record bears this out. As alleged and proven, 

the scheme involved real estate developers (Tyrone Hogan, Robert Schumake and 

Matthew Flynn) with the assistance of Robert Hance, a corrupted loan officer from 

Fifth Third Mortgage Michigan, a subsidiary of Fifth Third Bank Michigan, 

recruiting “straw buyers” to apply for multi-million dollar mortgage loans by false 

pretenses. The false statements included (1) the true buyers of the properties (the 

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straw buyers had no intent to exercise any ownership in the properties, but rather, 

allowed their names and credit histories be used as the “buyers” by the developers 

for a fee up front and promised return if/when the property was resold for a profit); 

(2) the income and assets of the buyers; (3) the intent of the buyers to occupy the 

properties; and (4) the fact that the “buyers” were making sizable down payments 

toward the purchase.3 Nicoletti served as the title agent on these loans. He 

prepared and submitted false HUD-1’s to Fifth Third Mortgage, Michigan, falsely 

showing sizable down payments by the straw buyers, which, as title agent, he was 

charged with collecting at the closings. His company, Continental Title, then 

obtained the loan proceeds from the lender’s bank accounts—money that was in 

the custody of either Fifth Third Bank Ohio or Fifth Third Bank Michigan, both 

federally insured institutions. That money was sent to Continental, in preparation 

for the real estate closings, through either direct deposits into Continental’s Fifth 

Third Bank Michigan bank account or, in the case of the Scott Lucia loan, by 

cashier’s checks. 

In all of the charged loan transactions, Nicoletti fabricated the down 

payments by getting Fifth Third Bank Michigan to issue official checks, backed by 

 

3 There is no evidence on the record that the first three false statements listed 

reached Fifth Third Bank. Rather, they were directed to Fifth Third Mortgage, 

Michigan, the uninsured subsidiary of Fifth Third Bank, Michigan. 

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Nicoletti’s Continental Title account at Fifth Third Bank, falsely containing the 

names of the straw buyers as the “remitters” or “purchasers” of the official checks 

on the face of the checks to make it appear as though the straw buyers purchased 

the official checks presented for the down payments. The straw buyers brought no 

money to closing and did not purchase the official checks. Rather, these official 

checks were ultimately paid from the Continental account by the loan proceeds 

themselves. Once the official checks were re-deposited into Nicoletti’s Continental 

account at Fifth Third Bank Michigan, Nicoletti distributed the loan proceeds to 

himself and his accomplices by issuing checks drawn on the Continental Title bank 

account. 

The retention and use of official checks from the bank to falsely “document” 

down payments, a central part of the scheme, alone involved multiple false

statements made directly to Fifth Third Bank, Michigan to obtain money in the 

bank’s custody in furtherance of the scheme. The Court will recall that the 

government’s proofs showed that Nicoletti obtained official checks from Fifth 

Third Bank Michigan (the branch in the same building as Nicoletti’s office) using 

the proceeds of the loans in order to document the false “down payments” of the 

straw purchasers, none of whom brought money to closing or funded their own 

down payments. (R.152: Testimony of S.A. Christine Taylor at 14-49 (Page ID 

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1778-1813) (distribution of loan proceeds from Nicoletti’s Continental Title 

account); GE 14, 23, 35, 48, 64, 77 (partial disbursement charts); GE 27 (Official 

Check falsely documenting Langhorne down payment), 38 (Official Check falsely 

documenting Glover down payment); 53 (Official Check falsely documenting 

Bossenbery down payment); 67 (Official Check falsely documenting Maples down 

payment); GE 81 (Two Official Checks falsely documenting Scott Lucia Down 

Payment)). Each of the official checks obtained to document the false down 

payments (save the Bossenbery official check4

) contained a key false statement: 

the assertion on the face of the check that the “remitter” or “purchaser” of the 

official check was the straw buyer. Thus, to obtain the official checks, someone 

told the issuing bank officer to list the straw buyers’ names as the purchasers of the 

checks, a lie to the bank to obtain official checks to document the false narrative of 

the scheme that the “buyers” made substantial down payments. Six of these false 

statements were made to the bank to obtain the six official checks entered into 

evidence. These false pretenses were then repeated directly to Fifth Third Bank 

Michigan when Nicoletti presented the false official checks to Fifth Third Bank for 

deposit into his Continental Title Fifth Third Bank account for distribution to 

 

4 The Bossenbery loan evidence was provided as evidence of conspiracy only and 

was not the basis of any substantive count of bank fraud.

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himself and his accomplices.

Thus, for each of the six false official checks, at least two false statements 

were made to Fifth Third Bank as part of the scheme: first, to obtain the checks, 

Fifth Third Bank was told that the straw buyers funded the checks and thus listed 

them as “remitters” or “purchasers” on the checks themselves; and second, the 

false checks were presented to Fifth Third Bank for deposit, causing Fifth Third 

Bank to credit Nicoletti’s Continental Title account, which was then used to 

distribute the proceeds to Nicoletti and the other participants of the fraud. 

At trial, Nicoletti even admitted that false statements were made to the bank 

to obtain the official checks, though painting himself as an innocent dupe of the 

fraud. He said that an assistant branch manager at Fifth Third Bank floated the 

checks, that is, issued them without funds to back them up, in order to falsely fund 

the down payments. (R.146: Testimony of Nicoletti at 102-03, Page ID 1475-76; 

107-08, Page ID 1480-81; 125-26, Page ID 1498-99; See also, GE 103 (tape of 

Nicoletti asserting that Reed lied about the remitters on the checks). The jury 

rejected Nicoletti’s self-portrayal as an innocent dupe.5 The point here, though, is 

 

5The jury heard Nicoletti joking in recorded conversations with Alan Lucia 

(Scott’s brother) about the fact that Scott purportedly brought $1.17 million as a 

down payment, and otherwise admitting that he knew that the buyers did not bring 

down payments to closing. GE 103, 104A, 105.

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that even under Nicoletti’s version of events, the scheme’s false pretenses reached 

Fifth Third Bank directly through the dishonest services of one of its employees, 

causing the issuance of non-sufficient-fund official checks, bearing false 

information about the remitters, required to close the loans. 

Whether accomplished through the issuance of the official checks for the

down payments after Continental Title received the loan proceeds, or before, 

through the issuance of checks without funds to back them up, these official checks 

were false documents requiring lies to Fifth Third Bank to obtain them, and 

repeated lies on presentment to the bank in order to accomplish the scheme. Those 

checks satisfied even the strictest readings of Loughrin and Banyan and, again, 

readily distinguishes this case from Banyan, where the government offered no 

evidence whatsoever that any false statement reached the subsidiaries’ parent 

companies (the insured financial institutions). Banyan at 555. 

Nicoletti ignores this evidence to argue that because the mortgage loan 

applications and HUD-1 settlement statements were not directed at Fifth Third 

Bank, but rather, to Fifth Third Mortgage Michigan, then he and his accomplices 

did not receive the loan proceeds “by means of” the fraudulent scheme. But 

Loughrin does not require direct false statements to the bank. Indeed, Nicoletti

stipulated to charge the jury that “[i]t is not necessary that the government prove . 

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. . that the false pretenses, representations or promises were made to Fifth Third 

Bank.” Sixth Circuit Pattern Criminal Jury Instructions, 10.03B, ¶3(D) (2019). Nor 

does Loughrin require that every false statement made in furtherance of the scheme 

find its way to the bank. Rather, the Court recognized that the term “‘by means of’ 

is inherently elastic: it does not mean one thing as to all fact patterns . . .”. 573 U.S. 

at 364, n.8. It was enough in Loughrin that a forged check presented to Target, to 

obtain merchandise from Target, which was later refunded to obtain cash from 

Target, ultimately found its way to a bank. Here, the much more complex scheme 

involved a myriad of false statements by various conspirators to multiple entities to 

accomplish the fraud. Many of the false statements, those surrounding the issuance 

and presentment of the official checks to falsely document down payments, a 

central part of the scheme as alleged in the indictment,6 were made directly to 

Fifth Third Bank. No such evidence existed in Bayan. 

Nicoletti’s reliance on United States v. Briggs, 939 F.2d 222 (5th Cir. 1991)

is misplaced. (R.172: Motion at 11-12). There, the court held that the mere act of 

ordering a wire transfer of funds “does not of itself necessarily constitute a 

 

6 The Indictment alleged: “It was futher part of the scheme and conspiracy that 

false information about the source of the down payments for the purchase of the 

properties was provided to 5/3 by one or more of the conspirators”. Doc. 1: 

Indictment at 5, ¶9.

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misrepresentation in all circumstances.” 939 F.2d at 227. But, as demonstrated 

above, the record here is replete with evidence that a central misrepresentation 

used in the scheme, that the borrowers were making sizable down payments, 

reached the insured financial institution, Fifth Third Bank. Moreover, in Briggs, 

the court was careful to limit its holding to the bare act of ordering the transfer, and 

went on to note that:

. . . our precedent makes clear that § 1344(a)(2) [sic] 

would encompass a wire transfer order containing 

an actual misrepresentation (e.g., a false recitation of the 

authority for its issuance). Thus, where the defendant 

falsely represents that she is acting under her employer's 

authority, we would have little trouble concluding that 

such conduct is squarely prohibited by the statute.

Id. Thus, Briggs actually supports a § 1344(2) conviction even though the funds 

are not “owned by” the bank and the bank suffers no loss, but rather, were owned 

by an employer and kept in the custody of a bank, a position diametrically opposed 

to Nicoletti’s here. Id.

2. Variance is not a close question.

Nicoletti argues that variance will also be a “close question” on appeal. 

Specifically, he argues that there was no mention of Fifth Third Mortgage 

Michigan in the indictment, suggests that the government relied on 18 U.S.C. 

§ 1344(1) in grand jury and in the indictment, then shifted to § 1344(2) prior to 

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trial when Nicoletti challenged the basis for § 1344(1) as applied to a subsidiary of 

an insured institution, and alleges that this resulted in a fatal variance between the 

allegations in the indictment and the proofs at trial. (R.172: Motion for Bond at 26-

27). Nicoletti’s claim of prejudice is yet unclear (there was no articulable prejudice 

presented in his Motion for Judgment of Acquittal), but seems to involve a

purported inability to properly defend himself at trial. (Id.). 

The Court of Appeals will review the variance issue de novo if Nicoletti is 

found to have preserved the issue for appeal, and for plain error if he has not. 

United States v. Mize, 814 F.3d 401, 408 (6th Cir. 2016). For purposes of bond 

pending appeal only, the government will assume Nicoletti properly preserved the 

issue, and that it will be reviewed de novo. 

A variance occurs “when the charging terms [of the indictment] are 

unchanged, but the evidence at trial proves facts materially different than those 

alleged in the indictment.” United States v. Mize, 814 F.3d 401, 409 (6th Cir. 2016) 

(quoting United States v. Keuhne, 547 F.3d 667, 683 (6th Cir. 2008)). “A variance 

is not reversible error unless the defendant demonstrates prejudice.” United States 

v. Nance, 481 F.3d 882, 886 (6th Cir. 2007). To demonstrate prejudice, the 

defendant must establish that “the variance prejudiced either his ability to defend 

himself or the overall fairness of the trial.” Mize, 814 F.3d at 411. When a 

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defendant “is unable to present his case and is taken by surprise by the evidence 

offered at trial,” the defendant has suffered a prejudicial variance warranting 

reversal. Id (citing United States v. Swafford, 512 F3d 833, 842 (6th Cir. 2008)). 

In this case, there was no material variance between the facts alleged in the 

indictment and the evidence presented at trial. Nicoletti is simply wrong to assert 

that the indictment did not allege violations of both 1344(1) and 1344(2). The 

statutory language of each of the two prongs of bank fraud were included in each 

count of the Indictment. Count One alleged that Nicoletti “. . . did knowingly and 

willfully . . . conspire . . . to knowingly execute a scheme to defraud 5/3 and to

obtain money by material false and fraudulent pretenses and representations . . .” 

(emphasis added)(R.1: Indictment at 3). Counts Two, Three and Four all alleged in 

identical language that Nicoletti “ . . . did knowingly execute . . . a scheme to 

defraud and for obtaining money from 5/3 by means of material false and 

fraudulent pretenses and representations . . .” (emphasis added)(Id. at 6-7). This 

language clearly accuses Nicoletti of violating both prongs of § 1344 and 

conspiring to do so. Nicoletti’s contrary suggestion is just untrue. 

Nor does the indictment’s failure to identify Fifth Third Mortgage Michigan 

specifically as the lender create any material variance. Prior to trial, the 

government elected to proceed solely under prong two of Section 1344 so as to 

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remove from consideration the central issue raised in Banyan ̧ that is, whether 

defrauding a wholly owned subsidiary of an insured financial institution was 

tantamount defrauding the insured institution itself under 18 U.S.C. § 1344(1), and 

so advised Nicoletti and the Court. (R.117: Government’s Motion in Limine at 3-

4). As shown, that statutory violation was plainly alleged in the indictment, and the 

bank that was alleged to have had custody or control of the funds at issue was 

clearly and correctly identified as Fifth Third Bank. The identity of the lender is 

not an element of 1344(2), and the indictment’s failure to specify the Fifth Third 

corporate entity lending the funds was immaterial to the charge. There was thus no 

variance between the indictment and the proofs at trial. 

Moreover, even if a variance were found, Nicoletti has identified no 

prejudice that resulted from this purported variance. Rather, he simply asserts that 

the government presented “misleading testimony” to the grand jury which 

inexplicably “prejudiced Mr. Nicoletti’s ability to defend himself”. (R.172: Brief in 

Support of Motion for Bond at 26).7 Nicoletti’s inability to show prejudice is not 

 

7 Nicoletti’s allegations that the government intentionally misled the grand jury 

are gratuitous in that they do not advance his variance argument or any other issue 

he suggests will be a “close question” on appeal. The government therefore need 

not respond at all, but will say that the proofs presented to the grand jury were 

accurate in light of the prevailing law at the time of indictment which could be 

reasonably construed with respect to both prongs of the statute, but especially with 

respect to 18 U.S.C. § 1344(1), to equate a wholly owned subsidiary of an insured 

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surprising, because it is unclear what prejudice he could possibly allege that he 

incurred from this supposed discrepancy between grand jury indictment and trial 

proofs. The indictment clearly alleged the crime established by the proofs 

presented to the grand jury and Nicoletti knew what charges he faced from the time 

of his arraignment in 2015. Additionally, Nicoletti was keenly aware of the fact 

that the lender was a subsidiary of Fifth Third bank after receiving the discovery in 

this case, and referenced this issue repeatedly in pretrial motions. At trial, he raised 

the issue of the identity of the lender regularly over the government’s objections. 

There is no case whatsoever that he was “taken by surprise” by the government’s 

proofs at trial, or that any defense was foreclosed to him, or that the fairness of the 

proceedings were in any way compromised, or even that the indictment would not 

 

lending institution with the lending institution itself. See, e.g., United States v. 

Rabuffo, 2017 WL 5565229, at *5-*7 (11th Cir. 2017) (unpublished) (rejecting 

argument that evidence insufficient to support Section 1344(1) and (2) convictions 

where fraud scheme aimed at SunTrust Mortgage, not SunTrust Bank); United 

States v. Chittenden, 848 F.3d 188, 200-01 (4th Cir. 2017) (upholding Section 

1344(2) convictions of defendant who defrauded mortgage company that was 

wholly owned subsidiary of a federally insured bank), abrogated on other grounds 

and vacated, 138 S. Ct. 447 (2017); United States v. Irvin, 682 F.3d 1254, 1272-73 

(10th Cir. 2012) (same); United States v. Hall, 613 F.3d 249, 252 (D.C. Cir. 2010) 

(upholding Section 1344 conviction based on fraud against wholly owned 

subsidiary of federally insured bank; opinion does not distinguish between statute’s 

two clauses); United States v. Walsh, 75 F.3d 1, 9 (1st Cir. 1996) (upholding 

Section 1344 conviction where wholly owned subsidiary was “practically an alter 

ego” of federally insured bank). 

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protect him from double jeopardy. Even in the unlikely event that the Court of 

Appeals were to find some variance, it was completely harmless and there is 

therefore virtually no chance for Nicoletti to succeed on this issue. 

3. Restitution issues are not “. . . substantial questions likely to 

result in a reversal, a new trial, or a reduced sentence” and 

challenging the restitution order for the first time in this 

motion is both frivolous and disingenuous. 

Nicoletti, for the first time, argues that the restitution order imposed by the 

Court was incorrect because it improperly included losses stemming from a loan

involving a former federal probation officer. (R.172: Defendant’s Brief at 28-29, 

PageID2384-85). The argument is both frivolous and disingenuous. First, it is 

frivolous because, even if true, the error would not raise a substantial question 

likely to result in reversal, a new trial or a reduced sentence, as the bond statute 

requires. Second, the argument is frivolous because Nicoletti agreed to the total 

amount of fraudulent transactions he was involved in, $8,442,930, prior to Fifth 

Third Bank’s recoveries from forclosures, and that amount included a fraudulent 

loan of $1,258,740 obtained by that individual, who was clearly identified on the 

list provided to the defense well in advance of sentencing breaking down the losses 

per transaction. (See PSR Addendum at A-1). The issue will therefore be reviewed 

for plain error on appeal and will most likely fail. See United States v. Hall, 71 

F.3d 569, 573 (6th Circuit 1995). Third, the argument is disingenuous because it 

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includes three false assertions by Nicoletti: (1) that he “had no involvement in [the 

probation officer’s] fraudulent conduct;” (2) that the individual “was not charged 

because he worked for the U.S. Probation Department;” and (3) that the 

government never revealed this “apparent conflict of interest to the defense or to

the Court.” (R.172: Defendant’s Brief at 28-29). In fact, Nicoletti closed this 

fraudulent loan as he did the others during the conspiracy period and as part of the 

conspiracy alleged in the indictment. In addition, F.B.I. Forms 302 pertaining to 

this transaction, as well as the underlying documentation surrounding it, were 

provided to Nicoletti many years ago, and, as his sentencing counsel 

acknowledges, identify him as a federal probation officer. Lastly, as this Court and 

Nicoletti well know, the government decided early in the investigation not to 

charge any of the straw buyers who were used and exploited by Nicoletti and his 

accomplices, and, thus, the decision not to charge this individual had nothing 

whatever to do with his status as a federal probation officer at the time. For 

Nicoletti to gratuitously raise this issue in a public filing, naming the former 

officer, and again accusing the government of impropriety, knowing that it will 

have no bearing on his motion for bond pending appeal, is difficult to understand. 

These recent, reckless choices, however, should be considered by the Court when 

determining whether Nicoletti has proven by clear and convincing evidence that he 

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is not a danger to the community. 

B. Nicoletti has not shown that he is not a danger to the community.

The bond statute requires, as a condition precedent to bond pending

appeal, that Nicoletti demonstrate, and this Court find, by clear and convincing 

evidence, that Nicoletti “is not likely to . . . pose a danger to the safety of . . . the 

community if released . . .” 18 U.S.C. § 3143(b)(1)(A). The determination of 

danger to the community is not limited to a defendant’s potential for violence, but 

rather, includes consideration of his potential to commit non-violent crimes against 

the community while on bond. United States v. Barry Rene Isaacs, Case No. 1:19-

cr-37 (SD Ohio, 4/7/2020), 2020 WL 1695155 at *3, citing United States v. 

Schenberger, 498 F. Supp. 2d 738, 742 (D.N.J. 2007) (“A danger to 

the community does not only include physical harm or violent behavior.”) and

S. Rep. 98-225, 12, 1984 U.S.C.C.A.N. 3182, 3195 (“The Committee intends that 

the concern about safety be given a broader construction than merely a danger of 

harm involving physical violence.”).

The only thing Nicoletti presents on this issue is the assertion that he did not 

violate the law or the conditions of his release “in the fifteen years since the 

incident” or “the five years since his indictment.” (R.172: Motion at 2, ¶ 4). This 

assertion, however, is not entirely accurate and, in any case, does not amount to 

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“clear and convincing proof” that he would not violate the law while his appeal is 

pending. It is not accurate because, as this Court heard at the trial, Nicoletti spent 

months, once Fifth Third investigators discovered the fraud, obstructing justice and 

counseling others to do the same. (See Government’s Sentencing Memorandum

(filed under seal) at 13-21, and the references cited there). In the years that 

followed, he perjured himself in a civil case based on the same subject matter, 

slandered his court-appointed attorneys (Id.), and, as the Court found at the time of 

sentencing, perjured himself while testifying on his own behalf. (Id. at 21-22; 

R.179: Sentencing Transcript at 39, 45, PageID2894, 2900). Even now, as part of 

his effort to avoid custody, he presents frivolous arguments based on lies to this 

Court, as set forth immediately above. Obstruction of justice and perjury are 

serious crimes, especially when committed by a licensed attorney, yet Nicoletti 

demonstrated a willingness, and even, as with the obstruction, an eagerness to 

violate the law when he found it beneficial to him. His assertion, then, that he has 

been law abiding since “the incident” is not true, and does not rise to the threshold 

of “clear and convincing proof” that Nicoletti will not violate the law while on 

bond. Having failed to make such a showing, Nicoletti is not entitled to bond 

pending appeal. 

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Conclusion

Nicoletti’s motion for bond pending appeal should be denied.

Respectfully submitted,

Matthew Schneider

United States Attorney

s/Craig A. Weier 

Craig A. Weier (P33261)

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.9678

craig.weier@usdoj.gov

s/John K. Neal 

John K. Neal

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.

craig.weier@usdoj.gov

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CERTIFICATE OF SERVICE

I certify that on May 1, 2020, I electronically filed the foregoing document 

with the Clerk of Court using the CM/ECF system, which will send notification of 

such filing to the following attorney for the defendant:

Paul Stablein

s/Craig A. Weier 

Craig A. Weier (P33261)

Assistant United States Attorney

Eastern District of Michigan

211 W. Fort St., Suite 2001

Detroit, Michigan 48226

313.226.9678

craig.weier@usdoj.gov

 

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