1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 

 Plaintiff, 

 Case No. 15-20382 

v. Honorable Victoria A. Roberts 

 

PAUL NICOLETTI, 

 Defendant. 

_________________________________/ 

ORDER (1) DENYING DEFENDANT’S MOTION FOR BOND PENDING 

APPEAL [ECF No.172] AND DENYING MOTION TO AMEND/CORRECT 

RESTITUTION [ECF No. 174] 

I. INTRODUCTION 

On June 23, 2015, the United States charged Paul Nicoletti (“Nicoletti”) in 

a four-count indictment — one count of conspiracy to commit bank fraud in 

violation of 18 U.S.C. § 1349 and three counts of aiding and abetting bank 

fraud in violation of 18 U.S.C. §§ 1344(2). On May 5, 2019, a jury convicted 

Nicoletti on all four counts. 

Nicoletti filed a Motion for Bond Pending Appeal pursuant to 18 U.S.C. 

§3143(b) and a Motion to Amend/Correct Restitution. It is fully briefed. 

A rational jury found—based on Nicoletti’s experience in the real estate 

industry and with Fifth Third Bank in particular, as well as his intimate 

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involvement in the fraudulent scheme—that he knew that the funds for the 

loans originated from Fifth Third Michigan or Ohio.  

Nicoletti fails to raise a substantial question of law and the Court DENIES 

Nicoletti’s motions. 

II. BACKGROUND 

Nicoletti participated in obtaining loans to purchase homes in Oakland 

County. He was a licensed attorney in the State of Michigan and President 

of Continental Title Insurance Agency. Nicoletti recruited unqualified straw 

buyers to purchase high-end residential property using the proceeds of multimillion-dollar mortgage loans from Fifth Third Bank. This fraudulent scheme 

and conspiracy were designed to obtain financing to purchase real estate 

located at 3935 Quarton Road, Bloomfield Hills, Michigan; 3941 Quarton 

Road, Bloomfield Hills, Michigan; and “Vacant Lone Pine Lot,” Bloomfield 

Hills, Michigan. Nicoletti acted as title agent; coordinated and conducted the 

real estate closings; prepared false HUD-1 Settlement Statements; and 

disbursed proceeds of the mortgage loans. 

During six days of trial, the Government proved Nicoletti knowingly 

facilitated fraudulent real estate transactions. The evidence established 

Nicoletti submitted fraudulent loan applications to financial institutions – 

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including Fifth Third Bank – that contained materially false information, 

including false identities of loan applicants, false income and assets of loan 

applicants, false sources of down payments, and false intentions on the part 

of the buyers to use the properties as principal residences. The evidence 

showed the loans were all funded by money in the custody of Fifth Third 

Bank, disbursed to Nicoletti’s title company’s bank account – also at Fifth 

Third Bank – and then distributed by Nicoletti to himself and others. 

III. STANDARD OF REVIEW 

There is a presumption of detention for a defendant who has been found 

guilty, sentenced to a term in prison, and who has filed an appeal. 18 U.S.C. 

§ 3143(b)(1); see also United States v. Vance, 851 F.2d 166, 168 (6th Cir. 

1988). 

Before releasing a defendant on bond pending appeal, a district court is 

required to make two findings. United States v. Pollard, 778 F.2d 1177, 1181 

(6th Cir. 1985). First, the court must find by clear and convincing evidence 

that the convicted person will not flee or pose a danger to the community. 

18 U.S.C. § 3143(b)(1)(A). Second, the court must find that the appeal is 

not to delay, and that it raises a substantial question of law or fact likely to 

result in reversal, a new trial, a sentence without a term in prison, or a 

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sentence reduction to a term in prison less than the time already served 

plus the expected duration of the appeal process. 18 U.S.C. § 

3143(b)(1)(B). 

IV. ANALYSIS 

 Nicoletti challenges the Court’s subject matter jurisdiction. He then says 

the evidence was insufficient to prove that he had the requisite criminal intent 

to obtain money within the custody of a financial institution and to establish 

that he submitted false information to financial institutions. 

Relying on United States v. Banyan, 933 F.3d 548 (6th Cir. 2019), Nicoletti 

argues the Court should be persuaded to grant this motion. However, 

Banyan is distinguishable. There are factual similarities between the cases: 

recruitment of straw buyer purchasers, overstatement of buyer income, false 

intentions to use properties as permanent addresses. But, there are notable 

distinctions: the Government in this case did not rely solely on the lender’s 

status as a wholly owned subsidiary to prove the requisite elements; the 

Government proved that Fifth Third Bank funded the loan proceeds; and 

Nicoletti made false statements – not only to its subsidiary mortgage 

company – but to Fifth Third Bank as well. These false statements were 

central to Nicoletti’s fraudulent scheme. 

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A. Nicoletti’s Challenge of Subject Matter Jurisdiction Is 

Misguided

Nicoletti contends that his conviction should be reversed because the 

government failed to prove beyond a reasonable doubt that Fifth Third Bank, 

a federally insured institution, was the victim of fraud. Nicoletti argues there 

is no federal jurisdiction absent proof that Fifth Third Bank was defrauded. 

To support a conviction for bank fraud under 18 U.S.C. 1344(2), the 

Government must prove that Nicoletti intended to: (1) obtain money in the 

custody or control of an insured financial institution; and (2) defraud financial 

institutions by “means of” false pretenses. 18 U.S.C. 1344(2). 

In relevant part, the bank fraud statute imposes liability on “[w]hoever 

knowingly executes, or attempts to execute, a scheme or artifice . . . 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.” 18 U.S.C. § 1344(2). 

“A scheme or artifice to defraud includes ‘any plan, pattern or cause of action, 

including false and fraudulent pretenses and misrepresentations, intended 

to deceive others in order to obtain something of value, such as money, from 

the institution to be deceived.’” United States v. Brandon, 17 F.3d 409, 424 

(1st Cir. 1994). “The scheme to defraud clause requires that the defendant 

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engage in a pattern or course of conduct designed to deceive a federally 

chartered or insured financial institution into releasing property, with the 

intent to victimize the institution by exposing it to actual or potential loss.” Id.

Where the Government fails to sufficiently prove the FDIC-insured status of 

the victim bank, this court has overturned bank fraud convictions for lack of 

jurisdiction. See, e.g., Davis, 735 F.3d at 199 (collecting cases). 

Whether Fifth Third Bank was the victim of bank fraud goes to the merits 

of his appeal, not to jurisdiction. Courts generally wrestle with § 1344 

jurisdiction when defendants are convicted of defrauding a non-FDIC insured 

institution. United States v. Edelkind, 467 F.3d 791, 797–98 (1st Cir. 2006) 

(upholding jurisdiction where the direct victim was not FDIC insured after 

finding that Lehman Brothers, an FDIC-insured institution, was also 

victimized by the defendant’s fraud). United States v. Davis, 735 F.3d 194, 

200-01 (no jurisdiction found where jury convicted defendant of defrauding 

American Express Company, which lacked FDIC-insured status). 

Here, the FDIC-insured status of Fifth Third Bank is established by the 

record. Both the indictment and jury instructions indicate that the 

Government charged Nicoletti with defrauding Fifth Third Bank, an FDICinsured institution. The jury verdict confirms the jury convicted Nicoletti of 

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defrauding Fifth Third Bank, not Fifth Third Mortgage. Because the alleged 

victim bank is FDIC insured, the Court has subject matter jurisdiction. 

B. There Was No Material Variance Between the Indictment and 

Evidence Presented At Trial 

Nicoletti argues there was a discrepancy between the allegations in 

the indictment and evidence offered at trial and that variance is a close 

question on appeal. Specifically, Nicoletti contends that the indictment never 

referenced Fifth Third Mortgage, and this failure to name the entity 

constitutes a prejudicial variance. The Government says there was no 

prejudicial variance between the facts alleged in the indictment and evidence 

presented at trial and – even if there was – it was not prejudicial. Nicoletti’s 

allegations are without merit. 

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

unchanged, but the evidence at trial proves facts materially different from 

those alleged in the indictment.” United States v. Prince, 214 F.3d 740, 757 

(6th Cir. 2000). A defendant’s substantial rights “are affected only when the 

defendant shows prejudice to his ability to defend himself at trial, to the 

general fairness of the trial, or to the indictment's sufficiency to bar 

subsequent prosecutions.” United States v. Barrow, 118 F.3d 482, 488–89 

(6th Cir.1997). “A variance is not reversible error unless the defendant 

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demonstrates prejudice.” United States v. Nance, 481 F.3d 882, 886 (6th Cir. 

2007). “To obtain relief under that standard, a defendant must establish ‘(1) 

error, (2) that is plain, and (3) that affects substantial rights.’” Johnson v. 

United States, 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 

(1997) (quoting United States v. Mize, 814 F.3d 401, 408 (6th Cir. 2016)). 

There is no material variance between the facts alleged in the 

indictment and the evidence presented at trial. Nicoletti’s knew precisely the 

nature of the charges and the evidence the Government intended to use to 

support those charges. 

Nicoletti says that the failure to include Fifth Third Mortgage Michigan 

in the indictment created a material variance. The indictment alleges a 

violation of § 1344(1) and § 1344(2). However, prior to trial, the Government 

advised Nicoletti and the Court that it intended only to go forward on the 

violation of §1344(2). For a violation of § 1344(2), it is not necessary for the 

Government to identity the lender. Rather, the Government must prove that 

Nicoletti intended 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. §1344(2).

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Although the Court noted the indictment “could have been more artfully 

drafted to refer specifically to the lending institution,” it was “sufficient for the 

purposes of the bank fraud statute.” [ECF No. 97]. The failure to note the 

Fifth Third corporate entity lending the funds was immaterial to the charge. 

Even assuming there was a variance, Nicoletti did not suffer prejudice. 

A variance is not per se prejudicial and will not always mandate a reversal. 

United States v. Budd, 496 F.3d 517, 522 (6th Cir. 2007). Nicoletti was aware 

of the evidence offered against him and was not “taken by surprise.” Further, 

the Court properly instructed the jury regarding the elements necessary to 

convict Nicoletti of bank fraud under § 1344(2). 

There was sufficient circumstantial evidence from which a reasonable 

jury did and could conclude that the trial evidence substantially matched the 

allegations in the Indictment. This is not a close question. 

C. Nicoletti Poses No Danger To the Community 

Nicoletti says that he is not likely to flee, nor does he pose a danger to 

the community because he has remained on an unsecured bond since DATE 

and appeared as directed for all Court ordered hearings. The Government 

argues that Nicoletti is a danger to the community. 

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The Government’s assertions are contrary to its prior representations 

to the Court. Specifically, the Government noted “[Nicoletti] is not a danger 

to society nor he is (sic) a threat to public safety.” [ECF No. 73, PageID.627]. 

Further, in March 2020, the Government consented to an extension for 

Nicoletti to voluntarily surrender. [ECF No. 176, PageID.2839]. Most 

recently, on June 2, 2020, the Government consented to another extension. 

[ECF No. 183, PageID.3145]. 

The Government could not possibly believe that Nicoletti poses a 

danger when it consented to multiple extensions for Nicoletti to voluntarily 

surrender. The Court finds Nicoletti does not present a danger to the safety 

to persons or the community. 

D. Government Produced Sufficient Evidence Showing Nicoletti 

Intended to Defraud A Financial Institution 

Nicoletti argues he raises a substantial question of fact concerning 

whether his conviction for bank fraud was proper in light of the Sixth Circuit’s 

ruling in Banyan. This argument is unavailing. 

 Section 1344 provides that a defendant may be found guilty of bank fraud 

if he: 

knowingly executes, or attempts to execute, a scheme or artifice— 

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(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. 

To obtain a conviction under § 1344(2), the Government needed to 

demonstrate that Nicoletti knowingly “deceiv[ed] a non-bank custodian into 

giving up bank property that it holds.” Loughrin, 573 U.S. at 357. 

a. Nicoletti Obtained Property in the Custody or Control of 

an FDIC-Insured Institution 

Nicoletti first argues that he did not obtain money within the custody or 

control because the Government failed to present proof that his actions 

deceived a federally chartered or insured financial institution; instead, he 

says he obtained money in the custody or control of a mortgage company 

(Fifth Third Mortgage) that is wholly owned by an FDIC-insured bank. 

The Government says there is no substantial question of law because it 

proved that Nicoletti intended to obtain money in the custody or control of 

Fifth Third Bank to acquire the properties at issue in the names of third 

parties; Nicoletti was aware of such funding; and he made false statements 

to Fifth Third Bank. 

The Court discussed the stark differences between Nicoletti and Banyan’s

case in denying his motion for judgment of acquittal. The Court stated: 

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"An individual shareholder, by virtue of his ownership of shares, 

does not own the corporation's assets[.]" Dole Food Co. v. 

Patrickson, 538 U.S. 468, 475 (2003); see also Rhode Island 

Hosp. Tr. Co. v. Doughton, 270 U.S. 69, 81 (1926) ("owner of the 

shares of stock in a company is not the owner of the corporation's 

property"); United States v. Bennett, 621 F.3d 1131, 1136 (9th 

Cir. 2010) (“a parent corporation does not own the assets of its 

wholly owned subsidiary by virtue of that relationship alone”). 

However, the relationship between Fifth Third Bank Michigan 

and Fifth Third Mortgage Michigan is more than a passive 

ownership of assets– Fifth Third Bank Michigan, an FDICinsured bank, funded all the loans based upon the fraudulent 

mortgage applications submitted by Nicoletti. The proofs here 

went beyond mere reliance on ownership, and Nicoletti’s reliance 

on Banyan is misplaced. 

In Banyan, the relationship between the mortgage company and 

parent bank proved to be nothing more than a passive parentsubsidiary relationship. The Government presented no evidence 

of the source of the funds obtained by fraud; there was no 

evidence that the defendants obtained loans funded by federally 

insured banks. The Sixth Circuit held that this was insufficient to 

show that a fraud scheme directed at the subsidiary mortgage 

company, really had the intention to obtain money in the custody 

of the parent bank. Banyan, 933 F.3d at 553.

In contrast to Banyan, the Government proved that Fifth Third 

Bank Michigan funded all the loans with money in its custody and 

highlighted that the proceeds were in the custody of a federally 

insured bank. See United States v. Rabuffo, 716 Fed. App'x 888, 

898 (11th Cir. 2017) (unpublished, per curiam)(supporting 

conviction when the government presented evidence that the 

defendant knew that a bank "would be handling any draw 

requests on the loans.”); see also United States v. 

Chittenden, 848 F.3d 188, 201 (4th Cir.), vacated on 

other grounds, 138 S.Ct. 447 (2017) (bank funded the loans 

through a line of credit to mortgage company); United States v. 

Edelkind, 467 F.3d 791, 797-98 (1st Cir. 2006) (bank approved 

the mortgage company's loans) (citing Banyan, 933 F.3d at 556). 

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Albert Cliffel, Corporate Tax Director for Fifth Third Bank, testified 

all loan proceeds at issue were in the custody of either Fifth Third 

Bank Michigan or Fifth Third Bank Ohio at the time they were 

released to Nicoletti’s Continental Title Account. This is a far cry 

from the utter lack of proof in Banyan that the parent bank funded 

the loans and that defendant was aware of the funding. 

Nicoletti knew that the money used to fund the loan proceeds 

was in the custody of a federally insured bank. The Government 

established Nicoletti received cashier’s checks issued and drawn 

from “Fifth Third Bank (Eastern Michigan)” totaling 

$1,824,156.05. He deposited these checks into his Continental 

Title account. “[C]hecks standing alone are not enough for a jury 

to find beyond a reasonable doubt that, when [defendant] 

submitted fraudulent loan applications to the mortgage 

companies, [he] intended to obtain funding from the banks.” 

Banyan, 933 F.3d at 553. However, the checks are a data point 

that are connected to the federally insured bank that funded the 

loan. Id. In conjunction with other evidence, these checks helped 

to prove that Nicoletti intended to obtain money in the custody of 

a secured financial institution. 

Again, Nicoletti fails to address any of the disparities the Court addressed 

between his case and Banyan. He merely presents the same arguments. 

Further, Nicoletti’s experience in the real estate industry supports that he 

knew that the funds for the loans originated from Fifth Third Bank. This 

experience and extensive background in the real estate industry includes 

Nicoletti acting as a title agent, coordinating and conducting real estate 

closings, and owning a licensed mortgage company – Continental Title. 

The Government produced evidence of Nicoletti’s involvement in this 

fraudulent scheme. Nicoletti acted as title agent, was closely involved in the 

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closings and purported sales, and prepared the closing statements. He 

prepared the HUD-1 forms and disbursed the proceeds of the loan. These 

were not arms-length transactions. Nicoletti and co-defendants engaged in 

a scheme to defraud by recruiting and paying straw purchasers. Nicoletti 

prepared false forms that identified straw buyers as purchasers. Nicoletti 

also made payments to these stray buyers. Nicoletti fails to meaningfully 

address his role in a scheme to defraud a federally insured institution. 

Taken together, Nicoletti’s extensive expertise in the real estate and 

mortgage lending industry and the fact that Fifth Third Bank funded the loans, 

as well as Nicoletti’s participation in the fraudulent scheme, support that he 

knew the funding originated from Fifth Third Bank. 

b. Nicoletti Obtained Bank Property “By Means Of” False 

Statements

Nicoletti argues the Government produced insufficient evidence that he 

intended to defraud the financial institutions “by means” of false pretenses. 

The Government says the evidence established Nicoletti obtained bank 

property “by means of” false statements. 

The bank fraud statute limits the provision’s scope to “frauds in which a 

false statement will naturally reach [a federally insured] bank (or a custodian 

of the bank’s property).” Loughrin, 573 U.S. at 365 n.8. 

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“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 context 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, see supra, at 2391 – 

2393, 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 a custodian of the 

bank's property). 

Id. Section 1344(2)'s “by means of” language is satisfied when, as here, 

Nicoletti’s false statement – which reached the bank – is the mechanism 

naturally inducing a bank (or custodian of bank property) to part with money 

in its control. Id. at 363. 

 The Court previously discussed Nicoletti’s scheme in obtaining bank 

property “by means of” false statements: 

Nicoletti made false statements directly to the bank to obtain 

money in its custody when he misstated: (1) the true buyers of 

the property; (2) income and assets of the buyers; (3) buyers 

intent to occupy the premises as their primary residence; and (4) 

buyers making sizable down payments toward the purchase of 

property. Nicoletti served as the title agent on the loans and 

submitted false HUD-1’s; his company, Continental Title, then 

obtained loan proceeds from money in the custody of Fifth Third 

Bank. This was the means by which Nicoletti and his coconspirators obtained the money. 

Again, Nicoletti argues that the mortgage fraud scheme had no 

connection to a federally insured bank, stating that funds flowed 

through Firth Third Mortgage Michigan. Nicoletti says that the 

mortgage company from which he obtained funds was not a 

“financial institution.” But the Government never sought to prove 

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– nor did it have to – that Fifth Third Mortgage was a financial 

institution under § 1344(2). 

Unlike Banyan, the Government does not argue that the Fifth 

Third Mortgage is a financial institution. Rather, the Government 

says that Nicoletti made several false statements that “reached 

the ears” of Fifth Third Bank. See Banyan, 933 F.3d at 555. 

Nicoletti falsely induced Fifth Third Bank to issue official checks 

by fabricating down payments from straw buyers and listing the 

straw buyers as purchasers or remitters. The straw buyers did 

not bring any money to closing, nor did they purchase the official 

checks. Instead, the checks were paid from Nicoletti’s 

Continental Title account – also at Fifth Third Bank – by the loan 

proceeds received from Fifth Third Bank Michigan and 

subsequently used to pay the straw buyers. 

Nicoletti relies on United States v. Briggs, 939 F.2d 222, 227 (5th Cir. 

1991) to argue that the mere act of depositing a check does not constitute 

bank fraud. However, Nicoletti neglects to mention that the money was only 

able to reach his Continental Title account after he made two distinct false 

statements to obtain money in Fifth Third Bank’s custody – (1) Nicoletti led 

Fifth Third Bank to believe the straw buyers funded the checks and listed the 

buyers as purchasers or remitters of the properties; (2) Nicoletti falsely 

portrayed the purchaser or remitter of the official check was the straw buyer. 

He then cites the testimony of Albert Cliffel, III, Corporate Tax Director 

of Fifth Third Bank, to conclude that the checks were in the custody of 

Continental Title, not Fifth Third Bank. However, Cliffel testified that Fifth 

Third Mortgage disbursed loans that were in the custody of Fifth Third Bank 

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and almost $1.8 million was transferred from the Fifth Third Mortgage 

account (funded wholly by Fifth Third Bank) into accounts set up by Nicoletti 

and his co-conspirators. Nicoletti’s reliance on Cliffel’s testimony disregards 

that Nicoletti presented the fraudulent documents that enabled him to gain 

access to funds fraudulently transferred from Fifth Third Bank. 

Finally, Nicoletti relies on United States v. Perez-Ceballos, 907 F.3d 

863, 868 (5th Cir. 2018). In Perez-Ceballos, a jury found the defendant guilty 

of bank fraud under 18 U.S.C. § 1344(1). Id. The Fifth Circuit determined that 

the defendant did not make any fraudulent statements to Chase Bank. Id.

Similarly, in Banyan, the Government presented no evidence that any of the 

misrepresentations on the loan applications ever reached the ears of anyone 

at the FDIC insured bank. See Banyan, 933 F.3d at 555. 

 However, unlike Banyan and Perez-Ceballos – and disregarding the 

fact that a jury convicted the defendant in Perez-Ceballos of bank fraud 

under §1344(1), not §1344(2) – the Government established that Nicoletti 

made false statements to Fifth Third Bank. 

The defendant in Loughrin violated § 1344(2) “because he made false 

statements, in the form of a forged and altered checks, that a merchant 

would, in the ordinary course of business, forward to a bank for payment.” 

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573 U.S. at 366. Similarly, Nicoletti’s fraudulent misrepresentations were “the 

mechanism naturally inducing a ... custodian of bank property ... to part with 

money in its control.” Id. at 363. 

E. Nicoletti’s Challenge to the Restitution Amount is Without 

Merit 

Nicoletti says the amount of restitution owed should be decreased 

because no loan documents for one particular loan were produced during 

trial. No witness testified concerning that loan. The Government alleges that 

the restitution order does not raise a substantial question of law. 

The Government did prove that Nicoletti participated in the closing of this 

particular loan. The Government never attempted to conceal this information 

from Nicoletti. He had the FBI 302 Forms pertaining to this transaction. Most 

importantly, Nicoletti agreed that the total amount of fraudulent transactions 

he was involved in equated to $8,442,930 – prior to Fifth Third Bank’s 

recoveries from foreclosures – and this amount included the particular loan 

he now challenges. [ECF No. 179, PageID.2885]. 

Nicoletti’s request to amend restitution is without merit. 

V. CONCLUSION 

Nicoletti fails to raise a substantial question of law or fact that would likely 

result in a reversal, new trial, or reduced sentence. 18 U.S.C. § 3143(b)(1). 

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Due to the ongoing global pandemic, the date on which Nicoletti must 

voluntarily surrender to the institution designated by the Bureau of Prisons 

for service of his custodial sentence is extended to January 1, 2021, or as 

soon thereafter as the Bureau of Prisons orders. 

Defendant's Motion for Bond Pending Appeal is DENIED. Defendant’s 

Motion to Amend/Correct Restitution is DENIED. 

IT IS ORDERED. 

s/ Victoria A. Roberts 

 United States District Judge 

Dated: June 3, 2020 

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