United States v. Hall

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 14, 2010 Decided July 2, 2010

No. 06-3185

UNITED STATES OF AMERICA,
APPELLEE

v.

ROBERT L. HALL, JR.,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 05cr00030-01)

Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the brief was A. J. Kramer,
Federal Public Defender.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roy W. McLeese III,
Mary B. McCord, and Steven J. Durham, Assistant U.S.
Attorneys.
 2

Before: HENDERSON, ROGERS and GARLAND, Circuit
Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Robert L. Hall, Jr. was convicted
by a jury of operating a “Ponzi” scheme1 for more than two
years involving over a million dollars in which more than
seventy investors lost all or a large portion of their investment.
He challenges his conviction primarily on the ground that the
district court failed to conduct an adequate inquiry to determine
whether his waiver of his right to counsel under the Sixth
Amendment to the U.S. Constitution was voluntary and
knowing. Specifically, he maintains the inquiry failed to dispel
his belief that his counsel was unprepared for trial. We hold that
the district court’s inquiry was constitutionally adequate because
the district court’s findings that Hall’s decision to represent
himself (with standby counsel) was knowing and voluntary met
the criteria in Faretta v. California, 422 U.S. 806 (1975), for
determining when a defendant may exercise his constitutional
right to forgo his right to counsel. Viewing the proceedings as
a whole, we reject Hall’s assertion that he faced the
constitutional dilemma of choosing between representing
himself or accepting unprepared counsel. The district court’s
colloquy with Hall addressed his complaints by identifying
Hall’s false premise regarding discovery and by explaining how

1
A “Ponzi” scheme is a scheme in which “some early
investors are paid off with money put up by later ones in order to
encourage more and bigger risks.” Merriam-Webster’s Collegiate
Dictionary 905 (10th ed. 1993). See also Belizan v. Hershon, 495
F.3d 686, 689 (D.C. Cir. 2007); Cunningham v. Brown, 265 U.S. 1,
7–9 (1924) (describing the “remarkable criminal financial career of
Charles Ponzi”).
 3

Hall’s generalized complaints did not indicate defense counsel
would not provide effective assistance.

We are further unpersuaded by Hall’s contentions that a
reversal of his conviction is required because plain error
occurred when the prosecutor’s erroneous closing argument
allegedly affected the jury’s understanding of the elements of
mail, wire, and District of Columbia Code fraud, and when the
district court constructively amended the indictment by
instructing the jury on a third type of securities fraud not
charged in the indictment. As to each error, Hall has failed to
show a likelihood that the error affected the verdict or seriously
affected the fairness, integrity, or public reputation of judicial
proceedings. Regarding closing argument, the jury was
instructed that arguments of counsel are not evidence and on the
elements of the charged offenses. Regarding the third type of
securities fraud, the jury necessarily had to find Hall engaged in
a scheme to defraud to convict on the mail, wire, and D.C. fraud
counts, and the evidence of his guilt was overwhelming.

However, as the government concedes, Hall’s challenges to
his sentence, save one, require a remand for resentencing.
Accordingly, we affirm the judgment of conviction but remand
the case to the district court for resentencing.

I.

The indictment alleged that from February 2001 to October
2003, Hall operated a Ponzi scheme through First United
Financial Group, LLC, which Hall owned and operated. The
scheme involved soliciting funds from investors by promising
high rates of return on investments in properties to be developed
for the benefit of low and middle-income African-Americans in
the District of Columbia. The government’s evidence showed
that Hall made false representations to the investors, promised
 4

them extraordinarily high rates of return, made no real estate
investments, and used money received from later investors to
pay initial investors and to sustain the scheme. Hall was
indicted on six counts of mail fraud and ten counts of wire fraud,
in violation of 18 U.S.C. §§ 1341, 1343; id. § 2, one count of
securities fraud, in violation of 15 U.S.C. §§ 77q(a), 77x, and
one count of first degree fraud, in violation of D.C. Code §§ 22-
3221(a), 22-3222(a)(1); and was subject to forfeiture of
$747,169 allegedly obtained by mail or wire fraud, pursuant to
18 U.S.C. § 982(a)(2)(A).

Ten investors in First United who had entered into “asset
placement agreements” calling for a set rate of return and
payment schedule testified about representations made to them
by Hall regarding First United, what if any payments they
received, and their efforts to recover their principal. According
to Hall’s website, which he encouraged potential investors to
read, First United was

[o]ne of the fastest growing consulting firms in the
Washington DC area . . . and has quickly positioned
itself as a financial services powerhouse, with a strong
focus on educating working class citizens. The keys to
the firm’s success are effective education and
consultation methods, complimented [sic] by the
proactive development of client-friendly solution
systems. These services are designed to assist clients
for whom professional wealth building consultation
was previously unaffordable. First United . . .
envisions that its superior client education systems will
secure its place as the icon in financial services for
citizens who have been historically disenfranchised
from the information that safeguards their financial
future.
 5

Gov’t. Ex. 18. The website included Hall’s photograph,
showing a serious looking bespectacled young man in a business
suit, who was described as “the twenty-nine year old President
& CEO of a multi-million dollar DC based consulting firm,”
who came from “humble beginnings” to “quickly ris[e] to
national prominence as a young leader in the African-American
community.” Id. The web site stated Hall was “[a] decorated
Army veteran and former paratrooper.” Id.

Fairly typical of other investors’ experience was that of
United States Army Warrant Officer William McClain. He was
contacted by Hall and First United employee Carletus Willis and
told that First United used investor money to renovate properties
in low-income neighborhoods in the Trinidad section of
Washington, D.C., thereby benefitting African Americans by
providing affordable housing and its investors by paying high
rates of return. Hall told McClain he would be able to retrieve
his investments, and that other investors had received their
principal and interest. McClain received a six-page
“prospectus” about the Trinidad project, a condominium
conversion realty solution for those displaced by
“gentrification.” It stated that “by assembling and representing
a $21 million investment Buyer Pool (IBP), our firm [First
United] acts as the facilitator of a community friendly real estate
development system which provides affordable housing to low
and moderate income earners.”

On four occasions McClain invested $27,000. His first two
investments, both $5,000, promised the return of principal plus
sixty percent interest in six months. McClain’s wife also
invested. When payment was not forthcoming, McClain
received letters from First United stating that there had been a
banking error delaying the checks and that First United was
going to sell property to avoid liquidity problems. With Hall’s
encouragement, McClain reinvested his principal and the profits
 6

he thought he had earned. When he contacted Hall because he
had not received any payments, Hall drafted a payment plan
calling for payment in two weeks. McClain never received the
payments. He also received no response to his October 2003
letter demanding payment. McClain and his wife lost all they
had invested in First United. Hall never informed McClain that
First United owned no real estate or had no assets to liquidate.

Similarly, Hall induced Villet Gethers, a graduate student
at Howard University, to invest $7,000, telling her his investors
were happy, she would lose no money, and that the return of her
principal was “guaranteed.” He promised her an annual return
of seventy-two percent and offered to pay her a commission for
every new investor she recruited. Hall told Gethers he had
attended Howard University, had experience in finance, and had
community responsibilities and insights as an Advisory
Neighborhood Commissioner. Gethers lost approximately
$4,000 dollars. 2

2
Other investors who lost money in Hall’s fraudulent
schemes also testified:

-Mary Perkins (a nursing assistant according to the
government’s brief) recovered only $2,000 of the $10,000 she
invested with First United.
-Walter Boone, a retired Postal Worker on disability pay,
invested $4,000 of his retirement funds after attending a seminar at
which Hall spoke. He was friends with an employee of First United
and invested because he was “strapped for money” to pay bills
following knee surgery. Tr. 2/21/06 at 179. Boone lost $2,000.
-Likewise, Dr. Melody Ivory, a professor of computer science,
and her husband lost $12,500 after investing in First United on the
basis of Hall’s enthusiastic representations about First United’s
performance, his commitment to the African American community,
and his friendship with Dr. Ivory’s friend. When she demanded her
money, Hall drove her around the city, pointing to several properties
 7

he claimed First United owned and described a building that was being
renovated by First United Construction LLC as part of the Trinidad
project. Dr. Ivory invested $30,000, and was promised $72,000 from
Hall after six months. Instead, she lost $5,500.
-Christian Downward (a government contractor according to
the government’s brief) invested $30,000 and received nothing back.
Hall had promised his principal was safe and would be returned if
there was no property in which to invest. When Downward did not
receive his payments, Hall claimed an employee had embezzled First
United funds.
-Kimberly Williams, who had a dual undergraduate degree in
economics and business, lost over $21,000 after entering asset
payment agreements in November 2001 and September 2002. She
initially received interest payments, which induced her to reinvest and
add to her principal with First United. According to Hall, her money
would be invested in the Trinidad project and he had “expertise”
through First United Construction. He also told Williams that the
Trinidad project was going well and First United was about to move
buyers into other properties. When nonpayment started in the fall of
2002, Williams received a letter from First United discussing liquidity
problems.
-Loryne Bowen, a nurse, lost all of the $9,634 investment she
transferred to First United from her retirement fund. She had heard
Hall speak at First United’s offices on Connecticut Avenue, N.W.;
Hall described himself as an avid follower of Marcus Garvey’s
philosophy, claiming that he had handled finances and bookings for
a number of religious and musical groups. Hall assured her an
investment posed no risk.
-Denise Dicks-Cook, an executive assistant seeking money for
her two children’s tuition costs, invested $22,000, the proceeds of her
deceased husband’s life insurance policy. She was prompted to invest
by Hall’s biography, the Trinidad project prospectus, and her
discussions with Hall and Carletus Willis, the First United employee,
about the needs of the African-American community. As a result of
Hall’s discussions with her about the Bible and her religious beliefs,
Dicks-Cook trusted Hall and was convinced he was a “Christ-like”
person with good intentions.
 8

Two former employees of First United described its
operations. Carletus Willis described First United’s relentless
focus on recruiting new investors rather than acquiring property.
According to Willis, First United acquired no property. Money
to pay early investors came from funds received from later
investors, not from real estate investments. Investors’ money
paid First United’s operating expenses, but it was not current on
its utilities bills and its checks bounced even as Hall was driving
a new Mercedes. Hall told Willis how to solicit business and
what to tell investors about the Trinidad project. Willis was
aware that the representations he was making to investors were
false. When investors complained about not receiving interest
payments they were sent a letter stating that property would be
sold to pay investors; Hall personally signed the letters. When
Willis voiced his discomfort with the operation, Hall
complained Willis was not bringing in as much capital as he
previously had. Willis also testified that although First United
maintained a “virtual office” at 1050 Connecticut Avenue, N.W.
(based on space rented at an hourly rate), its actual office was
located in Hall’s residence.

Lamont Bessicks, Jr., who worked for First United from
June to November 2002, testified that Hall had developed the
concept for the Trinidad project but it was never implemented.
Bessicks had been hired by Hall to locate properties to develop
into low and moderate income housing. But while he had
repeatedly presented Hall with projects, Hall never came up with
the required deposit funds. According to Bessicks, First United
made no offers to buy properties in the Trinidad neighborhood

-William Mann, a retired police officer, lost 100 percent of his
$10,000 investment. He testified that Hall assured him that the return
of his principal was guaranteed and at worst he would not receive
interest.
 9

and it never sought financing or developed construction plans
for any properties. Further, the statements in the prospectus that
First United had a $21 million investment pool and had provided
housing in the community were false. When Bessicks’ own
payroll checks began bouncing, he quit.

An expert witness described marketing fraud schemes for
the jury, including the nature of Ponzi schemes. He estimated,
based on a random sample of asset placement agreements, that
the average annual interest rate promised to the investors was
153.6 percent. The postal inspector who conducted the
investigation testified that the 70 investors who had responded
to a government questionnaire had lost approximately $747,000
in principal. Bank records showed that over $214,000 was
withdrawn from First United’s account in cash, checks made
payable to cash or Hall, or by transfers to Hall’s personal bank
account.

In his defense, Hall, representing himself, presented five
investors, in addition to a First United Construction employee,
a First United employee, and a real estate developer. The
investors testified that Hall had spoken to them about the risks
involved with the investments and that there was a high rate of
return in exchange for the risk and the lack of backing by the
FDIC. They also testified that they had received the promised
return on their investment. One of the witnesses, Reverend
Tommy Jackson, testified that Hall had told him that the money
was offered at a higher rate of return because the project had not
started and they were in desperate need of capital. Hall also
testified himself, with questions posed by his standby counsel,
claiming he acted in good faith. He claimed that he had paid
over $300,000 to investors out of $400,000 taken in during 2002
and that he had intended to pay the rest of the investors. He also
claimed that the literature about the Trinidad project represented
intentions to buy real estate and that he had not represented to
 10

investors that real estate had already been purchased. He
admitted, however, that he had never told investors he did not
have sufficient funds to purchase real estate and that First United
did not have any properties to liquidate, as the letters to
investors stated.

The jury convicted Hall on all counts and found by a
preponderance of the evidence that the proceeds from the mail
and wire fraud amounted to $747,169. The district court
sentenced Hall to 188 months’ imprisonment, followed by three
years’ supervised release, and ordered Hall to pay $713,924 in
restitution and to forfeit $747,169.

II.

On appeal, Hall contends he did not make a knowing,
intelligent, and voluntary waiver of his Sixth Amendment right
to counsel. He maintains that the district court’s inquiry
regarding defense counsel’s preparation for trial was inadequate
to dispel Hall’s belief that defense counsel was unprepared to
render effective assistance and so induced an involuntary
waiver. Because his specific concerns were never addressed,
and defense counsel’s responses that he was prepared to proceed
to trial did nothing to alleviate the constitutional dilemma Hall
faced, Hall maintains reversal is required: “It is not possible to
voluntarily choose to waive counsel when your alternative is
unprepared counsel.” Appellant’s Br. 17.

In Faretta, 422 U.S. 806, the Supreme Court held that in a
criminal prosecution a defendant has a constitutional right to
proceed without the counsel guaranteed by the Sixth
Amendment when he voluntarily and intelligently elects to do
so. However, the Court did not shy away from acknowledging
that “[i]t is undeniable that in most criminal prosecutions
defendants could better defend with counsel’s guidance than by
 11

their own unskilled efforts.” Id. at 834. Because an accused
who manages his own defense “relinquishes, as a purely factual
matter, many of the traditional benefits associated with the right
to counsel,” the Court imposed a precondition to self-
representation: “[I]n order to represent himself, the accused
must ‘knowingly and intelligently’ forego those relinquished
benefits.” Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458,
464–65 (1938)). The Court placed a responsibility on the trial
court to ensure this right by conducting a colloquy: “Although
a defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose self-
representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record will
establish that ‘he knows what he is doing and his choice is made
with his eyes open.’” Id. at 835 (quoting Adams v. United States
ex rel. McCann, 317 U.S. 269, 279 (1942)) (amended on denial
of reh’g, 1943).

The colloquy addressing Hall’s concern that defense
counsel was unprepared for trial took place on January 30,
2006, the date set in July 2005 for pretrial motions before the
February 6, 2006 trial date. At the start of the hearing, defense
counsel described the circumstances of his filing on Saturday,
January 28, 2006, a motion for a continuance on the ground that
defense counsel “is not prepared to proceed with the trial . . . on
its currently scheduled date” and “cannot represent to this court
that he is adequately prepared to zealously defend Mr. Hall.”
Def.’s Mot. For Continuance at 2. Defense counsel advised the
district court that since his appointment in April 2005, he had
opportunities to review the information provided by the
government and he had learned that Hall “had a particular idea
of how it is he wished to defend this case from the outset of my
representation of him.” Tr. 1/30/06 at 4. Defense counsel
stated that his office “ha[d] attempted to prepare a defense,
given the representations made by Mr. Hall, and in fact our
 12

agreement during the early part of our . . . attorney-client
relationship.” Id. Defense counsel noted that he had received
the “bulk” of discovery he had requested and that he anticipated
receiving further information about the government’s witnesses
and Jencks information that day. However, defense counsel
explained, on Saturday, January 28, after he and Hall had
reviewed a renewed plea offer and some of the information
from the government,

Mr. Hall represented to this counsel, and this counsel
agreed based upon what it is that he was saying at that
time, that he did not feel that we were ready to proceed
with trial. Although that was not my original position
prior to our meeting. Mr. Hall, originally when
counsel was appointed, represented that he wished to
in some respects represent himself, and that he viewed
counsel as a advisor of sorts to Mr. Hall, who was
prior to my appointment, and even at the time of my
appointment, prepared to represent himself. Upon
discussion and agreement between counsel and Mr.
Hall, we determined that Mr. Hall in fact could not
represent himself but as all criminal defendants do
have, he would have the right to testify in the trial to
illuminate some of the issues he thought would be
illuminated originally more effectively if he was
representing himself. Mr. Hall had agreed with
counsel that [representing himself] . . . would not be
the best way to proceed. But after having met with
counsel on Saturday [January 28] and hearing how it
is that counsel intended to proceed in terms of the
defense of this case, Mr. Hall again revisited the issue
of representing himself. Counsel . . . talked to Mr.
Hall about that option. Mr. Hall agreed with counsel
that if counsel were to request a continuance, that he
would then withdraw from that position that he wished
 13

to represent himself and that we would come here
before the court and make these representations, and
then Mr. Hall would make a decision about . . . his role
in the defense.

Id. at 5–6. Defense counsel then advised the district court
regarding Hall’s position on January 28 that “[b]ased on my
conversation with Mr. Hall and how it is that he intends now to
defend the case, I don’t feel as if I am prepared to do what it is
that Mr. Hall is now asking me to do, in light of the information
that we now have in our office.” Id. at 6–7.

The district court denied the motion for a continuance,
noting points made in the government’s opposition reciting
Hall’s efforts to delay his trial.3 Turning to the question of

3
In addition to arguing the two grounds stated for a
continuance were meritless, the government’s opposition to the “11th
hour” January 28, 2006 motion for a continuance stated that after
Postal Inspectors searched First United’s offices and seized
incriminating documents in October 2003, Hall applied in June 2004
for Criminal Justice Act representation and an Assistant Federal Public
Defender was appointed to represent Hall. The prosecution gave
defense counsel discovery and tendered a plea offer. At Hall’s
request, the plea deadline was extended several times. In October
2004, Hall “abruptly terminated” his counsel’s services and retained
attorney Pamela Bethel. The prosecution gave her discovery, access
to seized documents, and an extension on the plea offer. The plea
deadline was extended several more times at Hall’s request and then
rejected after two months had elapsed. In the interim, in December
2004, Ms. Bethel and another attorney representing Hall were given
access to the materials seized by the Postal Inspectors and they spent
two days reviewing and copying search warrant materials. The grand
jury returned its indictment on January 18, 2005. The next day the
prosecutor filed a trial memorandum outlining in detail what the
evidence would show and the witnesses the government intended to
 14

whether Hall would seek to represent himself, the district court
noted that, although Hall had a right to represent himself and
Hall was not an uneducated person, it did not “believe that a
criminal defendant’s interests are best served by representing
himself, because of all the rules and principles which the court
must enforce during the trial, which a criminal defendant may
not be aware of.” Tr. 1/30/06 at 12. Defense counsel, upon
conferring with Hall, advised that Hall would be making a
request to dismiss counsel and represent himself. At that point
the district court conferred ex parte with Hall and defense
counsel.

Hall told the district court that his complaint was not
related to any failures of the government to provide discovery
but rather that although defense counsel “is a great attorney,” he
believed his counsel “is not adequately prepared” for trial. Id.
at 15. Hall stated that he “lived through those years” and knew
“how much information . . . they have to work with.” Id. He
reasoned his counsel was unprepared from the fact that counsel
“ha[d] only spent less than say two hours a month” meeting
with Hall. Moreover, “it took some 12 federal agents nine
hours to collect boxes and boxes of documents and other
physical evidence, which are in Columbia, Maryland,” yet his
counsel, Hall asserted, had “never been to the room where that
information is.” Id. Hall further claimed “[t]here is exculpatory
evidence, in my opinion, there that has not been submitted by

call at trial. When Hall first appeared on January 28, 2005 before the
district court to which the case was assigned for trial, he was without
counsel, advising the district court he did not have funds to retain his
private counsel and he requested 45 to 60 days to retain counsel. The
district court continued the proceedings until February 28, and then
again until April 12, 2005. On that date, when Hall appeared without
counsel, the district court appointed defense counsel to represent Hall.
 15

the government to [defense counsel],” such as videotapes and
cash receipt books, and that evidence had not been requested by
defense counsel. Id. at 15–16. Hall also stated, “[w]e have no
witnesses that I know of” and no evidence to present, while the
government had volumes of documentation and expert
witnesses. Id. at 16. Then, clarifying that he was not “of the
opinion that I should definitely represent myself,” Hall told the
district court that he did not “feel that it would be appropriate to
go forward, given the level of representation of a good attorney.
And I would rather dismiss him as my attorney than go forward
with an ill-prepared attorney.” Id. In response to the district
court’s question whether he was asking for the appointment of
new counsel, Hall responded “that would probably be the
smartest thing[] for [me] to do.” Id. at 17.

Turning to defense counsel, the district court asked for his
response. Defense counsel began by observing that “I just think
we disagree about the level of preparation that has been done.”
Id. at 17. Explaining their planned schedule of meetings did not
materialize because of conflicts with their work schedules,
defense counsel advised that “during that time I became familiar
with the information that had been presented by the
government.” Id. at 17. Defense counsel stated that he had
reviewed some of the information he had obtained from the
government with Hall and knew what evidence and information
he would be able to use in the defense. Defense counsel assured
the district court that he was “very familiar with the
information[,] familiar with most of the players[,] . . . and felt
prepared really to go to trial.” Id. at 17–18.

The district court denied Hall’s motion to dismiss defense
counsel and appoint new counsel to represent him. First, the
district court identified Hall’s misunderstanding about
discovery. By way of introduction, the district court stated that
it could not and did not know what Hall was referring to in
 16

terms of evidence he was aware that the government had that
defense counsel had not requested, or in terms of what Hall
thought defense counsel should know that counsel did not. The
district court explained to Hall, however, that what it did know
from what the prosecutor and defense counsel had said is that
Hall “seem[ed] to . . . operate on a false premise, which is that
the government is required to give you all the information that
you think it should.” Id. at 18. The district court advised Hall
that the government had no such obligation beyond Rule 16 of
the Federal Rules of Criminal Procedure. Noting Hall’s
apparent confusion about this, the district court advised Hall
that this was one reason the court did not think it was a good
thing, even for a “very knowledgeable” person, to represent
himself. Id. at 19. Second, the district court explained to Hall
that defense counsel stated he had received from the
government all of the information to which he believes he is
entitled, and that nothing Hall had said suggested otherwise.
The district court advised Hall the prosecutor had stated that the
government disclosed more than was required under the rule.
Third, regarding Hall’s concern about witnesses, the district
court explained that a lack of witnesses alone did not indicate
defense counsel should be removed as unable to provide
effective assistance and new counsel appointed, because
“perhaps” there are no witnesses who could testify. Id. Finally,
the district court informed Hall of how it evaluated the situation.
Observing that Hall “wishes very much not to have the trial go
forward, . . . [and] basically wishing to do whatever is necessary
in order . . . to accomplish a delay of the trial,” the district court
informed Hall that a desire for delay was not an appropriate
basis to grant his request. Id.

The district court then inquired whether Hall had any other
requests. Hall requested that he be allowed to represent himself
and that defense counsel be appointed as an advisor. Further ex
parte inquiry established that Hall wanted defense counsel to
 17

act as standby counsel. The district court then posed a series of
questions in open court4 and determined that Hall’s waiver of
his Sixth Amendment right to counsel was made knowingly,
intelligently, and voluntarily, and appointed defense counsel as
standby counsel.

On appeal, Hall maintains the district court failed
adequately to inquire into his request for new counsel, pointing
to the lengthy inquiry in United States v. Cunningham, 145 F.3d
1385 (D.C. Cir. 1998), in which the district court dispelled the
factual misunderstanding that was the basis for the defendant’s

4
Hall informed the district court that he was thirty-two years
old, had attended more than three years of college at Howard
University majoring in international business and received good
grades when he had attended classes, and that he did not suffer from
any mental or emotional problem that would prevent him from
representing himself. When Hall responded he had no prior criminal
conviction and had not studied criminal law, the district court
addressed once again the “many disadvantages of self-representation,”
id. at 32, and how a lawyer would be knowledgeable of the principles
of criminal law and procedure to apply at trial. Hall responded that he
understood, as the district court put it, that he “will be disadvantaged
by that ignorance.” Id. at 33. Hall acknowledged he was not familiar
with the Federal Rules of Evidence “at this time,” id. at 33, or the
Federal Rules of Criminal Procedure “at this time,” id. at 34. The
district court again advised Hall that “a trained lawyer would defend
you far better than you could defend yourself,” that “it’s unwise of
you to represent yourself,” and that the court “strongly urges you not
to try to represent yourself.” Id. at 34. Hall responded that he
understood and, notwithstanding all the district court had said,
confirmed that his decision to represent himself was entirely
voluntary. In reassuring the district court that he wished to represent
himself Hall added, “provided that I have the assistance of [defense
counsel].” Id. at 35.
 18

complaints about his counsel. Hall appears to take the view that
he could not exercise free will when he believed defense
counsel to be unprepared for trial, and contends that nothing in
the record objectively contradicted that belief. See Appellant’s
Br. 22–23. In Faretta, 485 U.S. at 834, the Supreme Court
instructed, however, that to conclude a defendant’s decision to
waive the right to counsel is “intelligent” does not mean that it
must be perceived as reasonable or wise, 485 U.S. at 834. And
in Cunningham, 145 F.3d at 1388, this court warned that
“[w]here a defendant’s complaints lack merit, a court cannot
allow itself to be manipulated into granting a continuance and
appointing new counsel just to placate a defendant threatening
to represent himself.” Rather, where the defendant elects to
represent himself because he believes trial counsel is
unprepared, the district court “must evaluate the defendant’s
objections to ensure that the self-representation election is
voluntary” and not the result of a “Hobson’s choice.”
Cunningham, 145 F.3d at 1392.

In Cunningham, this court held that the district court’s
colloquy with the defendant was sufficient where the district
court had uncovered that the defendant’s dissatisfaction was
based on a factual misunderstanding and had “repeatedly
assured Cunningham of [the court’s] confidence in” his attorney
after finding that Cunningham’s complaints “plainly lack[ed]
merit.” Id. Similarly to Cunningham, the district court
uncovered and addressed the false premise underlying Hall’s
concern that defense counsel was unprepared for trial. The
district court was now cognizant of representations by the
prosecutor and defense counsel about discovery as well as
defense counsel’s explanation for filing the motion for a
continuance so close to the long-set trial date and his
representations about his preparedness for trial, and concluded
that Hall’s complaints about defense counsel reflected a
misunderstanding regarding discovery. Although Hall had
 19

disclaimed that he was making any argument that the
government had not turned over what it was “supposed to,” id.
at 15, his complaint that defense counsel did not request access
to unidentified additional documents revealed a
misunderstanding of the legal futility of such a request. The
district court explained the nature of the misunderstanding to
Hall and advised him that his complaints provided no basis to
conclude defense counsel would render ineffective assistance of
counsel, much less adequate reason to delay the start of trial so
new counsel could be appointed.

The record supports the district court’s conclusion.
Although the statement in the motion for a continuance lent
support to Hall’s assertion about defense counsel’s
unpreparedness due to the “volume of documentation,” Def.’s
Mot. for Continuance at 2, at the January 30 hearing defense
counsel limited that statement by explaining that he was
unprepared to proceed in the manner that Hall had suggested
over the weekend in view of the evidence his office had, not
that he was unprepared for the reasons Hall told the district
court he believed defense counsel was unprepared for trial. See
Tr. 1/30/06 at 5–7. In response to Hall’s claim that defense
counsel had not examined boxes of seized documents or asked
for exculpatory items, the district court explained to Hall that
the government had turned over everything required and that
defense counsel advised the court he was “familiar” with that
information and that Hall was not aware of the extent of his
preparatory efforts. Tr. 1/30/06 at 10, 19; 17. Hall never
identified specific documents that defense counsel had refused
to make an effort to obtain, besides his general objection that
counsel had not been to the room in Maryland where evidence
was held. Neither did Hall indicate to the district court that
there were potential witnesses that defense counsel had refused
to interview.
 20

Nevertheless Hall maintains that the district court was
required to question both him and defense counsel more fully
about the alleged lack of preparation. Doubtless the district
court’s inquiry might have proceeded further. For example, the
district court did not ask defense counsel whether the lack of
witnesses was a strategic choice or whether he had already
reviewed all the relevant evidence or thought he could do so
before the trial began in a week. The answers to these
questions, however, were implicit in defense counsel’s
representations to the district court that he was familiar with the
players and the information the government had provided. The
district court might have explained to Hall why the court was
confident defense counsel was prepared to render effective
assistance, because he still had a week to review documents
before trial. But Hall knew the scheduled trial date and had
heard defense counsel inform the district court that he
anticipated receiving additional materials from the government
that day in anticipation of starting trial in a week. The
circumstances in the cases Hall cites are readily distinguishable.
Unlike in Sanchez v. Mondragon, 858 F.2d 1462, 1466 & n.6
(10th Cir. 1988), the district court allowed Hall to state the
reasons for his belief that defense counsel was unprepared for
trial and asked defense counsel to respond to Hall’s complaints.
And unlike in Pazden v. Maurer, 424 F.3d 303 (3d Cir. 2005),
the government gave defense counsel access to discovery in a
timely fashion and defense counsel stated that he was familiar
with the information turned over by the government.

The extent of the Faretta colloquy with a defendant lies
within the district court’s discretion so long as the court
addresses the core elements of the defendant’s concern. The
district court did so here. The district court properly recognized
that Hall had a misunderstanding about the discovery that had
taken place and defense counsel’s review of that material. The
district court had earlier informed Hall that it had appointed
 21

experienced criminal defense counsel with whom the court was
familiar professionally. The district court also explained why
Hall’s concerns about witnesses or the lack thereof was not a
reason to dismiss defense counsel and appoint new counsel.
Based on the factual context and generalized nature of Hall’s
complaints, the district court reasonably could conclude that
Hall was simply trying to delay the start of his trial.
Additionally, defense counsel’s explanation for filing the
motion for a continuance, which Hall did not dispute, indicated
that Hall’s dissatisfaction with counsel stemmed from a
difference about trial tactics, not defense counsel’s
unpreparedness to meet his obligation under the Sixth
Amendment to provide effective assistance of counsel. Where,
as here, the record indicates a disagreement between the
defendant and his counsel about trial strategy – as distinct, for
example, from a disagreement about whether the defendant
should testify at trial – the district court may properly view that
as a matter for counsel to decide. See Strickland v. Washington,
466 U.S. 668, 690–91 (1984); Pavel v. Hollins, 261 F.3d 210,
217 (2d Cir. 2001); cf. United States v. Moore, 554 F.2d 1086,
1091 (D.C. Cir. 1976). Given the apparent lack of merit to
Hall’s complaints, a further inquiry was not constitutionally
required.

Also unpersuasive is Hall’s contention that his waiver of
counsel was not knowing or intelligent because he was unaware
of the guidelines range of 188 to 235 months to be used by the
district court at sentencing. The district court emphasized to
Hall the seriousness of the felonies with which he was charged
and advised Hall that the initial guidelines estimate was
conservative and could go up or down. Tr. 1/30/06 at 28, 31.
Moreover, the prosecutor alerted Hall to the possibility of a
sentence in excess of a hundred years’ imprisonment if the
sentences on each count were consecutive. Id. at 29–30. Hall
responded affirmatively to the district court’s inquiry whether
 22

he understood and appreciated that he was charged with very
serious felony offenses. Id. at 28; see also id. at 35. Hall’s
challenge to this aspect of the Faretta inquiry thus fails.

Accordingly, we hold that the district court’s inquiry
regarding the voluntariness of Hall’s waiver of his Sixth
Amendment right to counsel was constitutionally adequate. The
record shows that Hall’s request to represent himself, with the
assistance of standby counsel, was granted by the district court
only after the necessary Faretta inquiry regarding Hall’s
competence and intelligence to waive his right to counsel as
well as his knowledge of the gravity of the charges against him
and the disadvantages of self-representation.

III.

Hall also contends that plain error occurred during both the
prosecutor’s closing argument to the jury and the district court’s
instructions to the jury on securities fraud. Because Hall did not
object to either error during trial, he must show the error was
plain, because it affected his “substantial rights” and “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725, 732–37
(1993). Hall fails to meet this burden.

A.
As a representative of the United States, the prosecutor has
a duty to see that “justice shall be done,” and the average jury
places confidence in the prosecutor’s statements. Berger v.
United States, 295 U.S. 78, 88 (1935). Yet during closing
argument the prosecutor referred to three “independent bases”
for conviction of mail, wire, and D.C. fraud, Tr. 3/2/06 at 11,
22, and told the jury that if it found Hall had lied “to one person
one time, he can be found guilty of fraud,” id. at 69. Although
the securities fraud statute has three independent bases for
 23

finding liability, 15 U.S.C. § 77q(a), the mail, wire, and D.C.
fraud statutes impose liability only where there is a scheme to
defraud.5 Hence, the prosecutor’s closing argument purported
to vitiate the scheme-to-defraud requirements of the wire and
mail fraud statutes, and the scheme or systematic course of
conduct requirements of first-degree fraud under District of
Columbia law. On appeal, the United States properly concedes
the prosecutor’s statement was error. See Appellee’s Br. 52.
The question is whether this error prejudiced the outcome of
Hall’s trial, see United States v. Venable, 269 F.3d 1086, 1091
(D.C. Cir. 2001).

In determining prejudice, the court looks to “the centrality
of the issue affected, the severity of the prosecutor's misconduct,
the steps taken to mitigate the misconduct, and the closeness of
the case.” Id. at 1091. The error went to an element of the
crimes charged. However, the prosecutor told the jury to look
to the district court’s instructions on the law. See Tr. 3/2/06 at
10–11, 68. This reference to the forthcoming jury instructions
could not alone remove the taint of the error, because the error
suggested an easy way to convict for a juror disinclined to
examine the evidence in light of the instructions on the law. But
the district court instructed the jury both that arguments of
counsel were not evidence and that to convict on the mail, wire,
and D.C. fraud counts the jury must find a scheme to defraud
beyond a reasonable doubt. See Tr. 3/2/06 at 80, 89–94, 107.6

5
The mail and wire fraud statutes, 18 U.S.C. §§ 1341, 1343,
require proof of “any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses,
representations, or promises.” D.C. Code § 22-3221(a) requires proof
of a “scheme or systematic course of conduct with intent to defraud.”
The securities fraud statute is discussed infra Part III.B.
6
For example, the district court instructed that to convict of
wire fraud, the jury must find that Hall “knowingly devised or
 24

The jury is presumed to follow the instructions. See, e.g., Greer
v. Miller, 483 U.S. 756, 766 n.8 (1987); Richardson v. Marsh,
481 U.S. 200, 211 (1987). Given the jury instructions it is
implausible to think, absent evidence to the contrary, that the
jury took the prosecutor’s erroneous argument to mean that to
convict Hall it did not have to find a scheme to defraud, or
otherwise to follow the jury instructions. See Venable, 269 F.3d
at 1091.

Hall maintains, however, that the jury instructions were
insufficiently curative because the district court should have
alerted the jury to the prosecutor’s erroneous statement of the
law. This court has previously approved targeted instructions
designed to mitigate prejudice. See Bradley v. United States,
420 F.2d 181, 187 (D.C. Cir. 1969). The court has observed that
generic instructions may not be a cure-all for an erroneous
statement, see id. at 188, noting that a specific curative
instruction may be required in a particularly egregious case, see

knowingly participated in a scheme or artifice to obtain money or
property by means of false and fraudulent pretenses” and that the
defendant “did so with the intent to defraud.” Tr. 3/2/06 at 89. The
district court then instructed that a scheme or artifice “is merely a plan
for the accomplishment of an object.” Tr. 3/2/06 at 91. Similarly, the
district court instructed that to convict of first-degree fraud under
District of Columbia law, the jury must find, beyond a reasonable
doubt, that the defendant was engaged in a scheme or systematic
course of conduct, defining “scheme” as “any pattern of behavior
calculated to deceive persons of ordinary prudence and
comprehension.” Tr. 3/2/06 at 107. To the extent Hall now argues
the instructions were confusing, he points to nothing in the record,
such as a note from the jury seeking clarification, and the jury is
presumed to have followed the instructions; the record indicates that
the jury had a copy of the instructions in the jury room during its
deliberations.
 25

United States v. North, 910 F.2d 843, 897–98 n.33 (D.C. Cir.
1990), and that contemporaneous objection to a specific
erroneous statement can “fix[] the statement in the jury’s mind
as one subject to doubt,” Gaither v. United States, 413 F.2d
1061, 1079–80 (D.C. Cir. 1969). This court has not yet held that
the district court has a sua sponte obligation to alert the jury to
the type of error that occurred here, either in the course of the
closing argument or in the final instructions to the jury. The
instant case does not warrant doing so. The district court
instructed the jury on the “scheme” elements of the charged
offenses, and that instruction was sufficiently curative,
particularly when the erroneous argument was acknowledged by
the prosecutor to be subject to the court’s instructions, see, e.g.,
Venable, 269 F.3d at 1091; United States v. Catlett, 97 F.3d 565,
573 (D.C. Cir. 1996). Unlike in Bradley, the government’s
evidence of Hall’s involvement in a scheme to defraud was
overwhelming, see Venable, 269 F.3d at 1092; United States v.
Webb, 255 F.3d 890, 901 (D.C. Cir. 2001). We therefore
conclude the error, although plain, did not prejudice the outcome
of the trial or seriously affect the fairness, integrity or public
reputation of the proceedings.

B.
Under 15 U.S.C. § 77q(a), securities fraud can be
committed by (1) employment of any device, scheme, or artifice
to defraud; or (2) obtaining money by means of any untrue
statement of material fact or omission to state any material fact
necessary to keep the statements made from being misleading,
or (3) engaging in any transaction, practice, or course of
business which operates or would operate as a fraud or deceit
upon the purchaser. The indictment did not charge Hall with the
third way of committing securities fraud. However, the district
court instructed the jury that it could convict Hall of securities
fraud in any one of the three ways. Hall therefore contends that
the indictment was constructively amended in violation of the
 26

Grand Jury Clause of the Fifth Amendment to the U.S.
Constitution, see, e.g., Stirone v. United States, 361 U.S. 212,
215–18 (1960), and so erroneously reduced the government’s
burden of proof because he was unaware he had to defend
against a third theory.

Hall maintains that to show plain error, as he must because
he did not object to the instruction at trial, he need not show
prejudice because the Constitution protects a defendant’s right
to be tried only on “charges returned by a grand jury,” U.S.
CONST. amend. V, and the violation of this fundamental right
always affects substantial rights. See Stirone, 361 U.S. at
217–18. We need not decide this question. In United States v.
Cotton, 535 U.S. 625 (2002), the Supreme Court avoided
deciding whether this type of error affected the defendant’s
substantial rights because in that case the error did not
“seriously affect the fairness, integrity or public reputation of
judicial proceedings,” the fourth prong of the plain error
analysis. Id. at 632–33. The same is true here.

“[I]n most circumstances, an error that does not affect the
jury’s verdict does not significantly impugn the ‘fairness,’
‘integrity,’ or ‘public reputation’ of the judicial process.”
United States v. Marcus, No. 08-1341, slip op. at 7, (U.S. May
24, 2010) (quoting Johnson v. United States, 520 U.S. 461, 467
(1997)). Hall has not shown this error affected the verdict.
Although suggesting it was a close question whether Hall had
engaged in a scheme to defraud and it was likely that the jury
used the “easier” theory, Hall’s appellate counsel was unable
during oral argument to explain how it would have been easier
for the jury to find Hall engaged in the third erroneously-
instructed way of committing securities fraud than either of the
other two ways. Nor can we. The district court instructed the
jury that it could not convict unless it found that Hall acted
“willfully, knowingly, and with the intent to defraud” regardless
 27

of which theory it relied upon. Tr. 3/2/06 at 98–99; see also 15
U.S.C. § 77x. United States v. Lawton, 995 F.2d 290 (D.C. Cir.
1993), on which Hall relies, is distinguishable, for the
amendment there allowed the jury to convict on facts that did
not constitute a federal crime and the special verdict form
indicated the jury convicted on that basis, id. at 294–95.
Additionally, although claiming he focused his defense on
rebutting the first two theories, Hall does not suggest he would
have defended himself differently had he known the third theory
was at issue. See Appellant’s Br. 39. Hall testified and he
argued to the jury that he did not intend to defraud anyone, and
the evidence against him was overwhelming. And while he
maintains the uncharged theory that the asset placement
agreements’ incorporation of D.C. law caused it to operate as a
fraud was not something subsumed within the proof of the
charged theories, see id. at 40, he overlooks the jury instructions
that to convict on mail and wire fraud the jury had to find Hall
engaged in a scheme to defraud. See supra note 5. Hall thus
fails to show that inclusion of the third theory in the jury
instructions seriously affected the fairness, integrity, or public
reputation of judicial proceedings.

IV.

Finally, Hall contends that his sentence was procedurally
and substantively unreasonable and he must be resentenced. The
district court sentenced Hall to 188 months in prison followed by
three years’ supervised release, and ordered him to pay $713,924
in restitution. Except as to the matter of the investors’ loss, the
district court adopted the findings in the presentence
investigative report. Hall maintains that: (1) The district court’s
“loss” finding was neither explained nor supported by sufficient
evidence; (2) The district court failed to explain adequately the
chosen sentence; (3) The 188-month sentence exceeds the five-
year statutory maximum on certain mail and wire fraud counts;
 28

and (4) The district court’s application of the abuse of trust
enhancement was plain error because Hall took the money as an
entrepreneur not as an investment broker. With the exception of
Hall’s challenge to the abuse of trust enhancement, the
government agrees a remand for resentencing is required.

This court reviews sentences for reasonableness using an
abuse of discretion standard. See Gall v. United States, 552 U.S.
38, 45 (2007). Where a sentence is procedurally unsound, there
has been an abuse of discretion. See United States v. McCants,
554 F.3d 155, 160 (D.C. Cir. 2009). This court applies a less
exacting plain error prejudice requirement in the sentencing
context, while still requiring a “reasonable likelihood that the
sentencing court’s obvious errors affected [the] sentence.”
United States v. Saro, 24 F.3d 283, 287–88 (D.C. Cir. 1994);
see also In re Sealed Case, 527 F.3d 188, 191–92 (D.C. Cir.
2008).

First, it is unclear how the district court determined the
amount the investors lost was more than one million dollars. At
sentencing the district court stated it was relying on the method
in United States v. Orton, 73 F.3d 331, 334 (11th Cir. 1996), and
the parties agree that under the “loss to losing victims” method
the amount of loss would have been $747,169, the amount the
jury ordered to be forfeited; alternatively, the government
suggests the district court could have found that the amount of
loss was $713,924, the amount identified in the presentence
report as the net loss to investors. See Appellant’s Br. 43;
Appellee’s Br. 59 n.36. In rejecting both Hall’s figure
($713,924) and the government’s original figure ($1,394,234),
the district court stated that the loss was just over one million
dollars. Tr. 12/7/06 at 41. As a result, Hall’s sentence was
subject to a 16 point enhancement rather than a 14 point
enhancement under the U.S. Sentencing Guidelines (“U.S.S.G.”)
§ 2B1.1(b)(1), increasing his sentencing range from 151 to 188
 29

months to 188 to 235 months. Hall points to the government’s
evidentiary submissions in maintaining there is insufficient
evidence for calculating the loss under the Orton method at over
one million dollars. See Appellant’s Br. 43–45. Although the
district court is required only to “make a reasonable estimate,”
U.S.S.G. § 2B1.1 cmt. n.3(C), we remand for the court either to
explain how it arrived at its estimate or to recalculate the amount
of the loss.

Second, the district court did not explain the particular
sentence it imposed as 18 U.S.C. § 3553(c) requires. See In re
Sealed Case, 527 F.3d at 191. At a criminal offense level of 36,
Hall’s guidelines range was 188 to 235 months, rather than the
151 to 188 months for a criminal offense level of 34. The
district court sentenced Hall to 188 months without explaining
the choice of that particular term of imprisonment. Tr. 12/7/06
at 41. When the guidelines range is greater than twenty-four
months, the district court “shall state in open court the reasons”
it is “imposing a sentence at a particular point within the range.”
18 U.S.C. § 3553(c)(1). Although the district court explained
that Hall would be sentenced “for what he did which was to
cheat, lie, and steal to enrich himself and which caused great
injury to others,” Tr. 12/7/06 at 37, and that no one was to blame
for the injury to investors “other than Mr. Robert Hall,” id. at 39,
the district court did not explain why, in view of the factors in 18
U.S.C. § 3553(a), a sentence of 188 months was necessary,
much less why the lower sentence that Hall requested would be
insufficient. A remand is, therefore, required. See In re Sealed
Case, 527 F.3d at 191; see also Rita v. United States, 551 U.S.
338, 356–58 (2007).

Third, the parties suggest that the district court should
impose an appropriate sentence on each count and specify how
each is to be served, concurrently or consecutively, instead of
imposing a single sentence of 188 months for all of the counts
 30

of conviction. Tr. 12/7/06 at 41. The maximum penalties of
some counts were less than the term imposed. Because we must
remand the case for resentencing for the district court to explain
how it determined the amount of the loss and the resulting
offense level under U.S.S.G. § 2B1.1(b)(1), and to specify the
reasons for choosing the particular point in the sentencing range
pursuant to 18 U.S.C. § 3533(c), on remand the district court
also can specify sentences for the individual counts.

However, we find no plain error by the district court in
applying a two-level enhancement for abuse of trust under
U.S.S.G. § 3B1.3.7 See United States v. Whren, 111 F.3d 956,
960 (D.C. Cir. 1997); Saro, 24 F.3d 283, 287–88. Application
Note 2, relied upon by the district court, stated that the
“adjustment also applies in the case in which the defendant
provides sufficient indicia to the victim that the defendant
legitimately holds a position of public or private trust . . . . For
example . . . a defendant who . . . perpetrates a financial fraud
by leading an investor to believe the defendant is a legitimate
investment broker.” U.S.S.G.§ 3B1.1 cmt. n.2 (2002) (now

7
U.S.S.G. § 3B1.3 provides:

If the defendant abused a position of public or private trust, or
used a special skill, in a manner that significantly facilitated
the commission or concealment of the offense, increase by 2
levels. This adjustment may not be employed if an abuse of
trust or skill is included in the base offense level or specific
offense characteristic. If this adjustment is based upon an
abuse of a position of trust, it may be employed in addition to
an adjustment under § 3B1.1 (Aggravating Role); if this
adjustment is based solely on the use of a special skill, it may
3B1.1 (Aggravating Role).
 31

U.S.S.G. §3B1.1 cmt. n.3 (2009)).8 The district court found that
Hall “had provided sufficient indicia to the victims that he was
a legitimate financial advisor when in truth he used that position
to defraud investors.” Presentence Investigation Report ¶ 61.

Hall contends that the abuse of trust enhancement can apply
“[o]nly if the defendant exploited a special position of trust that
he either occupied or pretended to occupy,” Appellant’s Br.
48–49, and that he “never purported to be handling the victims’
money as a financial advisor, investment broker, or other
investment intermediary, fiduciary, or custodian,” id. at 49.
Rather, he maintains he only was “soliciting their money as an
entrepreneur,” id. at 49. But First United’s website boasted of
its prowess as “a financial services powerhouse” with “services
. . . designed to assist clients for whom professional wealth
building consultation was previously unaffordable,” focusing on
those “historically disenfranchised from the information that
safeguards their financial future.” Gov’t Ex.18. The corporate

8
Application Note 2 provided in full:
This adjustment also applies in a case in which the defendant
provides sufficient indicia to the victim that the defendant
legitimately holds a position of private or public trust when,
in fact, the defendant does not. For example, the enhancement
applies in the case of a defendant who (A) perpetrates a
financial fraud by leading an investor to believe the defendant
is a legitimate investment broker; or (B) perpetrates a fraud by
representing falsely to a patient or employer that the
defendant is a licensed physician. In making the
misrepresentation, the defendant assumes a position of trust,
relative to the victim, that provides the defendant with the
same opportunity to commit a difficult-to-detect crime that
the defendant would have had if the position were held
legitimately.

U.S.S.G. § 3B1.3 cmt. n.2 (2002).
 32

summary in the prospectus for the Trinidad project stated that
First United operated in the areas of “Financial Management,
Financial Planning, Venture Capital, [and] Asset Management.”
Gov’t Ex. 24. Investors testified that Hall advised them of the
financial advantages of investing in First United and also to
reinvest the interest they had earned, while emphasizing the
investment discretion that they conferred upon him under the
asset placement agreements. Indeed, sentencing counsel
acknowledged that application of the enhancement was
“arguable,” Def.’s Sentencing Memorandum at 10.

The cases on which Hall relies do not involve plain error
review. Even so, in United States v. Mullens, 65 F.3d 1560,
1566 (11th Cir. 1995), the court concluded the evidence did not
show either the kind of “holding out” as an investment broker or
the kind of advertising that Hall made about himself and First
United as an “asset manager” of investors’ funds over which he
exercised control. Moreover, other circuits take a broader view
of the application of the enhancement than Hall urges, see
United States v. Morris, 286 F.3d 1291, 1299 n.13 (11th Cir.
2002) (citing cases). Perhaps more helpful to Hall is precedent
that the position of trust inquiry “must focus on the relationship
between the defendant and the victim from the perspective of the
victim,” United States v. Caplinger, 339 F.3d 226, 236 (4th Cir.
2003), and avoid application of the enhancement in “‘arms-
length commercial transactions where trust is created by the
defendant’s personality or the victim’s credulity,’” id. at 237
(quoting United States v. Bollin, 264 F.3d 391, 415 (4th Cir.
2001)). Yet even that court and other circuits uphold application
of the enhancement where the defendant has broad discretion to
act on behalf of the victim and the victim believes the defendant
will act in the victim’s best interest, see Bollin, 264 F.3d at
415–16, as the government’s evidence here showed. See
generally Morris, 286 F.3d at 1296–97 (noting that in absence
of a clear definition of “position of trust” in the Guidelines,
 33

whether to apply the enhancement is “highly dependent on the
specific facts in each situation”). To the extent Hall views the
enhancement to be limited under Application Note 1 to
circumstances involving a narrow definition of “position of
trust,” Appellant’s Br. 48; see United States v. Tann, 532 F.3d
868, 875–76 (D.C. Cir. 2008), Application Note 2, by using the
word “also”, suggests that the district court’s reliance on
Application Note 2 was not plain error.

Accordingly, we affirm the judgment of conviction but
remand for resentencing.