United States v. Dazey

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 13 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. Nos. 03-6187, 03-6205,
03-6208 & 03-6228
DENNIS DEAN DAZEY, ROY
MATHEW, DIANE LENORE
GRIFFITH, and ROBERT GERALD
CRAFT,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CR-02-92-R)

David W. Lee, Comingdeer, Lee & Gooch, Oklahoma City, Oklahoma, for
Defendant-Appellant Dennis Dean Dazey.

R. Scott Adams, Oklahoma City, Oklahoma, for Defendant-Appellant Roy
Mathew.

Robert L. Wyatt, IV, Wyatt Law Office, Oklahoma City, Oklahoma for
Defendant-Appellant Diane Lenore Griffith.

Stephen Jones, Stephen Jones & Associates, Enid, Oklahoma, for Defendant-
Appellant Robert Gerald Craft.

Susan Dickerson Cox, Assistant United States Attorney (Robert G. McCampbell,
United States Attorney, with her on the brief) Oklahoma City, Oklahoma, for
Plaintiff-Appellee.
Before KELLY, HOLLOWAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Robert Gerald Craft, Roy Mathew, Dennis Dean Dazey, and Diane Lenore

Griffith were convicted of conspiracy to commit wire fraud. The defendants were

also convicted of a number of substantive counts of wire fraud, securities fraud,

and/or money laundering. On appeal, each defendant challenges the sufficiency

of evidence for conviction, as well as raising several procedural and evidentiary

issues. Mr. Mathew and Mr. Dazey also challenge their sentences. Appellants’

convictions and Mr. Mathew’s sentence are AFFIRMED. Mr. Dazey’s sentence

is AFFIRMED as to all arguments raised in his initial brief, but is VACATED in

light of United States v. Booker, 125 S.Ct. 738 (2005). The case is REMANDED

to the district court for resentencing in accordance with that decision.

I. BACKGROUND

The four defendants were implicated in a fraudulent investment company

called Wealth-Mart. Wealth-Mart styled itself as an investment fund with a

highly lucrative international “bank debenture” investment program that traded in

secret overseas markets in accordance with Christian and humanitarian investment

principles. Wealth-Mart promised investors very high returns within a few

-2-
months. In addition, because Wealth-Mart invested in instruments representing

obligations of major world banks (known as “prime banks”), the investors’

principal was guaranteed. During the late 1990’s, Wealth-Mart solicited over 14

million dollars in investments. Not a penny of the funds investors entrusted to

Wealth-Mart’s care was invested overseas, and most of it was never returned.

Dr. Craft was Wealth-Mart’s charismatic leader. He ran the company out

of his “Craft & Sons” offices in Oklahoma City. Although Wealth-Mart was

formed by co-defendant Mathew and others, Dr. Craft directed the program from

its inception. The other employees at his Oklahoma City office were all

subordinate to him. Dr. Craft controlled Wealth-Mart’s bank accounts and

directed that all invested funds go through him. He presided at daily staff

meetings, which often included investors. Although Dr. Craft directed the

financial and organizational aspects of the business at these meetings, the

meetings were more often motivational and inspirational events, including prayer

and gospel singing. Dr. Craft spoke at seminars that he organized to promote the

Wealth-Mart program. Investors were impressed with Dr. Craft’s speaking style,

his religious background and approach, and his apparent ability to acquire very

substantial wealth.

Mr. Mathew, a certified public accountant, served both as Wealth-Mart’s

financial manager and as Dr. Craft’s personal accountant. He also created

-3-
Wealth-Mart’s founding documents. He was introduced to investors as the CPA

for the program. At daily meetings, Mr. Mathew frequently addressed the

assembled staff and investors, describing the operation of the program and the

expected return on investment. Mr. Mathew helped set up a tribal bank that Dr.

Craft used to deposit investors’ funds and to pay his and the company’s expenses.

Mr. Mathew also recruited several investors into the program and helped create

letters and documents to assuage concerned investors who began complaining

when promised returns failed to materialize.

Mr. Dazey was the international financier. Investors understood that Mr.

Dazey was the trader, or the liaison to the actual traders, who had the

responsibility of placing investments overseas in the lucrative bank debenture

market. At Wealth-Mart seminars, Mr. Dazey was introduced as an expert with

long experience in international finance. Seminar attendees were treated to

lectures by Mr. Dazey on the high returns that could be generated by investing in

various bank instruments in secret foreign markets. Mr. Dazey was a long-time

friend and associate of Dr. Craft, and they purportedly had been involved in

“international trade” together since the early 1990’s.

Ms. Griffith was Wealth-Mart’s leading sales and customer service

representative. She persuaded many people to invest in Dr. Craft’s program,

including some personal friends and members of her own family. Ms. Griffith

-4-
managed relations with these investors as they began complaining about not

receiving the promised returns. She assisted with planning and logistics at

Wealth-Mart seminars. She also provided various administrative services in

support of Wealth-Mart’s day-to-day operations.

Wealth-Mart’s international investment program was completely bogus.

There is no such thing as a “prime bank.” The prime bank financial instruments

that Wealth-Mart purported to invest in do not exist. The secretive, exclusive

market in which such instruments are traded, accessible only to the world’s

financial elite and Wealth-Mart’s select customers, is also purely imaginary. As a

government expert witness from the Federal Reserve explained at trial, prime

bank investment schemes like Wealth-Mart’s are a common variety of Ponzi

schemes. The usual script for a prime bank fraud has the promoter promising

very high returns with no risk. The promoter solicits investment in fictitious

instruments with complex-sounding nomenclature, which purport to represent debt

obligations of major world banks. The promoter often claims that the instruments

are guaranteed by public institutions such as the Federal Reserve, the World

Bank, or the International Monetary Fund. Promoters tend to emphasize the

exclusive and secret nature of the program and sometimes require investors to

sign nondisclosure agreements.

The Wealth-Mart program followed this template to the letter. By late

-5-
summer of 1997, Dr. Craft, Mr. Mathew, Ms. Griffith, and others began enticing

investors into the program. The sales force described Wealth-Mart as a bank

debenture trading program that would provide enormous returns with no risk.

Wealth-Mart’s marketing materials hyped the lucrative European intra-bank

market and explained that the market was so secret that those with access to the

market might deny its existence and that the investors’ own brokers or bankers

likely had not heard of it. Wealth-Mart Investors were required to sign

nondisclosure agreements.

The Wealth-Mart sales pitch routinely exploited investors’ religious

convictions. Dr. Craft was portrayed as a devout Christian and humanitarian,

while Mr. Dazey and Mr. Mathew were said to be active ministers. Some

investors entrusted funds to Wealth-Mart based on its principals’ religious bona

fides and were attracted to the program in part because they were told their money

would be used to advance charitable causes.

Wealth-Mart put on three investment seminars at a luxurious ranch in

Colorado. The defendants chartered airplanes and buses to transport themselves

and investors to the seminars. Dr. Craft presided at the seminars, made speeches,

mingled with the potential investors, and in general attempted to create the aura

of an elite gathering of international financial insiders. Dr. Craft presented Mr.

Dazey to the audience, under the alias “Wooly West,” as Wealth-Mart’s

-6-
international trader. Wooly West addressed the seminar participants on

international financial topics and touted his financial connections. He dropped

names like Nixon and Rockefeller as being among his former clients. Many

seminar invitees were impressed and decided to place investments, or increase

their existing positions, with Wealth-Mart.

The money rolled in. In less than two years, Wealth-Mart acquired at least

14 million dollars. To receive the investors’ money, Wealth-Mart set up a bank

called First Lenape Nation Bank. First Lenape appeared to be a functioning tribal

bank. In reality, it was just a shell, and investors’ money was commingled and

passed upstream to two accounts at established Oklahoma banks. These accounts

were all controlled by Dr. Craft. A few investors sent their money directly to an

account at Nations Bank controlled by Mr. Dazey.

None of the money was invested overseas. Dr. Craft spent much of it on

personal expenses for himself and his family, including cash payments to family

and associates, fancy cars for himself and his family, and a house for his son. Dr.

Craft also used investor funds to acquire interests in real estate, oil and gas

leases, a restaurant, an emu ranch, and a movie production company. Wealth-

Mart burned additional investor money on lavish travel such as chartering private

airplanes and a Caribbean cruise for Wealth-Mart employees and their families.

Approximately two million dollars of investors’ money went to Mr. Dazey’s

-7-
account, which he used to pay debts and expenditures arising from other business

ventures.

Inevitably, investors began complaining when hefty checks representing the

results of Wooly West’s savvy trading failed to arrive in the mail. Mr. Mathew

and Ms. Griffith devised a “re-entry” plan to stall for time. They asked investors

to sign a re-entry form allowing Wealth-Mart to reinvest their accumulated

earnings. Investors were thereby deceived into believing that the reason they

hadn’t been paid was that Wealth-Mart had rolled their earnings into new

investments. Dr. Craft and Ms. Griffith, among others, offered increasingly

preposterous excuses to suspicious investors who demanded to know what had

become of their money. In addition to variations on the standard “the check is in

the mail” theme, investors were told that various government entities had held up

or frozen the funds, including the Federal Reserve, FBI, and CIA. Princess

Diana’s death and other world events were also blamed for the delay in

repatriating the funds.

Wealth-Mart’s activities eventually came to the attention of the authorities.

Some investors, cooperating with law enforcement, made clandestine tape

recordings of meetings at the Craft offices. The FBI executed search warrants at

the Craft offices and recovered numerous Wealth-Mart documents at Mr.

Mathew’s home. Later, a federal grand jury issued an indictment charging the

-8-
four appellants, as well as another Wealth-Mart employee named Denise Jones,

with conspiracy, wire fraud, securities fraud, and money laundering. Ms. Jones

pled guilty and testified for the government. After a three-week trial, the jury

convicted Dr. Craft on all 59 counts on which he was charged, including one

count of conspiracy and several counts each of wire fraud, securities fraud, and

money laundering. Mr. Mathew was convicted of conspiracy and money

laundering, but was acquitted of securities fraud. The jury convicted Mr. Dazey

of conspiracy and several counts of wire fraud and one money laundering count,

but acquitted him of one wire fraud count. Ms. Griffith was found guilty of

conspiracy and wire fraud, but found not guilty of securities fraud.

The district court sentenced Dr. Craft to 180 months in prison. Mr.

Mathew was sentenced to 46 months, and Mr. Dazey was sentenced to 121. The

district court departed downward from the Guidelines range for Ms. Griffith and

sentenced her to 50 months.

II. DISCUSSION

A. Sufficiency of Evidence

Each of the appellants challenges the sufficiency of evidence to convict on

all counts. Sufficiency of evidence is a question of law that we review de novo.

United States v. Rahseparian, 231 F.3d 1257, 1261 (10th Cir. 2000). We examine

all of the evidence and the reasonable inferences to be drawn from that evidence,

-9-
to determine whether any rational juror could have found the elements of the

crime beyond a reasonable doubt. Id. at 1261-62. We view the evidence in the

light most favorable to the government. United States v. Owen, 15 F.3d 1528,

1532 (10th Cir. 1994). We do not weigh conflicting evidence or evaluate witness

credibility; these are the exclusive province of the jury. United States v.

Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). As long as the jury’s

inferences are reasonable, “it [is] for the jury, not the court, to determine what

may have occurred.” Rahseparian, 231 F.3d at 1262 (quoting United States v.

Grissom, 44 F.3d 1507, 1510 (10th Cir.1995)).

1. Conspiracy

All of the appellants were convicted of conspiracy to commit wire fraud in

violation of 18 U.S.C. § 371. Each appellant now argues that there was

insufficient evidence to sustain that conviction.

A conviction of conspiracy under 18 U.S.C. § 371 requires: (1) an

agreement, (2) to break the law, (3) an overt act, (4) in furtherance of the

conspiracy’s object, and (5) proof that the defendant wilfully entered the

conspiracy. United States v. Hanson, 41 F.3d 580, 582 (10th Cir. 1994). “The

core of a conspiracy is an agreement to commit an unlawful act.” United States v.

Morehead, 959 F.2d 1489, 1500 (10th Cir. 1992) (quoting United States v.

Esparsen, 930 F.2d 1461, 1471 (10th Cir. 1991)). “[T]he critical inquiry is

-10-
whether the circumstances, acts, and conduct of the parties are of such a character

that the minds of reasonable men may conclude therefrom that an unlawful

agreement exists.” Morehead, 959 F.2d at 1500 (quoting United States v.

Kendall, 766 F.2d 1426, 1431 (10th Cir. 1985)). Because “[s]ecrecy and

concealment are essential features of successful conspiracy,” Blumenthal v.

United States, 332 U.S. 539, 557 (1947), direct evidence of conspiracy is often

hard to come by. Therefore, conspiracy convictions may be based on

circumstantial evidence, and the jury may infer conspiracy from the defendants’

conduct and other circumstantial evidence indicating coordination and concert of

action. United States v. Hardwell, 80 F.3d 1471, 1482 (10th Cir. 1996). Finally,

a conspiracy conviction requires at least the degree of criminal intent necessary

for the substantive offense itself. Morehead, 959 F.2d at 1500 (quoting Ingram v.

United States, 360 U.S. 672, 678 (1959)).

Dr. Craft contends that there was no evidence that he agreed with anyone

to defraud investors and no evidence that he knew that the Wealth-Mart program

was a fraud. He relies heavily on the testimony of Denise Jones, an alleged co-

conspirator and cooperating witness. Ms. Jones testified that, in her opinion, Dr.

Craft believed in the legitimacy of Wealth-Mart and continued to believe in it

even after being indicted. Ms. Jones also said that she herself continued to

believe there was an actual trading program until she was indicted. Many

-11-
investors also testified that they believed in the program, at least until their

money disappeared. In light of this evidence that so many Wealth-Mart

participants, including Dr. Craft himself, believed in the program, Dr. Craft

contends that the government presented insufficient counter-evidence that he

intentionally agreed to defraud investors.

Ms. Jones’s affirmation of Dr. Craft’s innocence was less than unequivocal;

indeed she ascribed his apparent belief in the program to his being “delusional.”

Tr. 779. More importantly, the government provided ample evidence that Dr.

Craft knew Wealth-Mart was a fraud. The jury was entitled to credit that

evidence rather than Ms. Jones’s opinion about what Dr. Craft believed. The jury

heard evidence that Dr. Craft directed and controlled Wealth-Mart’s operations,

including its bank accounts. The government showed that several investors, after

hearing Dr. Craft pitch his international trading program, wired money into Dr.

Craft’s accounts. The evidence showed that Dr. Craft diverted those funds to buy

houses and cars for himself and his family. Dr. Craft told investors he would

invest their money in certain foreign bank securities, but none of it was so

invested. He also told investors that he would guarantee Wealth-Mart

investments with his own personal assets, which the investors believed to be

substantial, when in fact he had no significant assets other than money he diverted

from Wealth-Mart investors. When investors complained, Dr. Craft told them that

-12-
payout was imminent and offered false excuses for the delay. This evidence is

more than sufficient to support an inference that Dr. Craft knew Wealth-Mart was

fake and that he intentionally conspired to defraud investors.

Mr. Mathew also challenges his conspiracy conviction. He claims that the

evidence showed only that he was associated with Dr. Craft, assisted with some

accounting matters, and was present at certain Wealth-Mart meetings. He

concedes that this evidence may have given him some knowledge of others’

involvement in a crime, but he maintains that this is insufficient to show that he

himself participated in the conspiracy. See United States v. Migliaccio, 34 F.3d

1517, 1521-22 (10th Cir. 1994) (a defendant’s knowledge of his business

partner’s intent to commit fraud was insufficient alone to prove conspiracy).

However, the government’s evidence showed that Mr. Mathew’s

participation in Wealth-Mart went well beyond mere association with Dr. Craft

and attendance at meetings. Mr. Mathew developed Wealth-Mart’s founding

documents and forms used for agreements with investors. He made presentations

at staff meetings in which he described how the investment program operated and

estimated the potential return on investment. Mr. Mathew was introduced to

prospective investors as Wealth-Mart’s CPA, a fact which at least one investor

said enhanced his perception of Wealth-Mart’s legitimacy and contributed to his

decision to invest.

-13-
 Mr. Mathew was aware that investors were complaining about not being

paid. He, along with others, hatched a plan to stall for time by inducing investors

to sign a “re-entry” form. The form led investors to believe that their investments

were successful and that Wealth-Mart would “re-enter” their earnings into the

program. Mr. Mathew was also involved in creating the First Lenape bank

accounts Dr. Craft used to deposit investor money, and he was present at a

meeting where Dr. Craft said that he was using those accounts to make it difficult

to trace the transactions.

Mr. Mathew also recruited investors into the program. One of his recruits,

Ricky Sanchez, demanded his money back. Mr. Mathew attempted to stall Mr.

Sanchez with excuses about trouble repatriating the money. Mr. Mathew then

paid Mr. Sanchez using investment funds he had recently solicited from another

investor.

This evidence is sufficient for a reasonable jury to infer that Mr. Mathew

intentionally conspired to defraud investors. Mr. Mathew maintains that he took

certain steps to distance himself from Wealth-Mart, such as filing an involuntary

bankruptcy petition against Dr. Craft and providing information to the FBI.

However, the government argues that these steps are also explainable as self-

serving actions to attempt to exculpate himself. Whichever interpretation is true,

this evidence does not preclude a reasonable jury from concluding that Mr.

-14-
Mathew conspired with the other defendants to commit fraud.

Mr. Dazey also argues that there was insufficient evidence to convict him

of conspiracy. He contends that there was no evidence of any connection between

himself and Wealth-Mart and no evidence that he solicited any investors. The

evidence, according to Mr. Dazey, showed only that he was a friend of Dr. Craft

who gave informational presentations at the seminars.

The evidence showed more than this. Denise Jones testified that Mr. Dazey

was involved with Dr. Craft in an earlier investment scheme similar to Wealth-

Mart and that some of the money had been diverted for Mr. Dazey’s personal use.

The evidence showed that some Wealth-Mart investors deposited or wired money

directly to Mr. Dazey’s bank account, and that Mr. Dazey received approximately

$2.2 million from Wealth-Mart. Mr. Dazey maintained frequent contact, via

phone and fax, with Dr. Craft. He provided cell phones that Dr. Craft and Denise

Jones used to carry on the scheme. At seminars packed with potential investors,

Mr. Dazey presented himself as an experienced international investor with special

contacts. Mr. Dazey told investors that he was the trader with whom their

investments would be placed. He praised investment programs like Wealth-

Mart’s as lucrative and safe. All of this evidence, viewed in the light most

favorable to the government, was sufficient for the jury to conclude that Mr.

Dazey knowingly conspired with the other defendants to commit wire fraud.

-15-
 Finally, Ms. Griffith also argues that the evidence was insufficient for a

conspiracy conviction. She concedes that the evidence shows that she was an

active and willing participant in the Wealth-Mart program. However, she avers

that she believed in the program and Dr. Craft all along, that her actions were

consistent with a true believer in the program, and thus that there was insufficient

evidence that she intentionally conspired to defraud anyone.

The government responds that there was considerable evidence that Ms.

Griffith knew Wealth-Mart was a fraud. Ms. Griffith was close to Dr. Craft and

was one of three or four people who had direct access to him. She was one of

Wealth-Mart’s leading salespersons, and she persuaded many investors, including

personal friends and family members, to invest. Ms. Griffith played an important

role in communicating with investors as complaints began coming in. She sent

faxes and e-mails reiterating Dr. Craft’s excuses and assuring investors that they

could expect payment very soon. Investors had multiple communications back

and forth with Ms. Griffith over many months in which the investor repeatedly

asked for his money back while Ms. Griffith repeatedly responded by blaming the

delay on uncontrollable international factors and promising imminent payment.

She continued to make such promises long after the investors themselves had

given up hope of ever seeing their money again. Cooperating witness Denise

Jones testified that Ms. Griffith, together with Mr. Mathew, devised the “re-entry”

-16-
plan, in which investors would be told that their investments were doing well and

that their earnings would be re-invested back into the program. Ms. Griffith then

pitched the re-entry program to the investors, including the promise of a 10%

bonus if they stayed in the program for 12 months. The government also provided

evidence that Ms. Griffith knew that the FBI had searched the Craft offices in

1999 and that she was served with notice of a fraud lawsuit against herself and

Dr. Craft. Finally, the government offered evidence that Dr. Craft gave Ms.

Griffith a slice of the profits, including $39,000 over a six-month period, some

“walking around” cash, a Caribbean cruise, and a Lincoln.

Some of this evidence is not as damning as it might seem. Ms. Griffith

points out that $39,000 was small change compared to what Dr. Craft, Mr. Dazey,

and other friends and family of Dr. Craft received. While Ms. Griffith’s receipt

of a Lincoln seems on par with the late model Cadillacs and SUV’s that Dr. Craft

and his family bought with investors’ funds, Ms. Griffith’s son-in-law testified

that her Lincoln, at the time she received it, was past its prime, with high mileage

and a driver’s seat stubbornly stuck in the fully-reclined position. Ms. Griffith

traveled to Colorado by bus, while Dr. Craft, Mr. Dazey, and others traveled in

private planes. She was relegated to double room occupancy at the Colorado

lodges, while others had their own rooms.

Ms. Griffith claims that additional evidence supports her claim to have

-17-
been deceived by Dr. Craft. Investors testified that Dr. Craft put up a very

persuasive front of being a trustworthy Christian businessman with a long history

of successful ventures. Ms. Griffith maintains that there was nothing obviously

suspect about the program, as evidenced by the fact that many of the investors,

some of whom were licensed securities brokers and other experienced

professionals, believed in it enough to invest substantial sums. Ms. Griffith’s

sincere belief in the program was also supported by evidence that she solicited

investments from her own family and personal friends, who put over a quarter of

a million dollars into Wealth-Mart.

Ms. Griffith relies on United States v. Rahseparian, 231 F.3d 1257 (10th

Cir. 2000). In that case, two brothers were running a fraudulent telemarketing

scheme, and their father handled all of the scheme’s banking needs through bank

accounts of his own separate personal business. We held that there was

insufficient evidence to prove that the father knew the scheme was fraudulent,

even though he conducted all of the company’s banking, communicated frequently

with his sons about the incoming deposits, and made false exculpatory statements

to the police. Id. at 1263-64. Ms. Griffith argues that the evidence against her

was similar to that in Rahseparian. It showed that she played an important role in

a business that turned out to be fraudulent, but that is insufficient to prove her

criminal knowledge.

-18-
 However, in Rahseparian, we found it important that “[t]here is no

evidence [the defendant] was aware of the misrepresentations being made to

customers, or that they were not receiving their products or promised prizes.” Id.

at 1263. Here, by contrast, there is no doubt that Ms. Griffith knew that investors

were not being paid, and she played a central role in staving off their demands for

return of their money with false promises of imminent payment. It is possible that

Ms. Griffith believed the implausible excuses and promises of repayment she

passed on to investors from Dr. Craft, even as the promises repeatedly turned out

to be false. But the jury was entitled to conclude otherwise, especially in light of

the undeniable implausibility of these representations. See United States v.

McCrimmon, 362 F.3d 725, 729-30 (11th Cir. 2004) (highly implausible

statements by salesperson, including guarantee of high returns without risk, are

suggestive of fraud). We conclude that Ms. Griffith’s communications with

investors and implementation of the re-entry plan, together with all the other

evidence, was sufficient to support Ms. Griffith’s conviction.

2. Wire Fraud and Money Laundering

Dr. Craft claims there was insufficient evidence to sustain his convictions

for wire fraud, securities fraud, and money laundering. However, his brief offers

no argument on this point, and therefore we do not consider it. See Utahns for

Better Transp. v. United States Dept. of Trans., 305 F.3d 1152, 1169, 1175 (10th

-19-
Cir. 2002) (issues not adequately briefed are deemed waived).

Mr. Mathew argues that there was insufficient evidence to convict him of

two counts of money laundering in violation of 18 U.S.C. § 1957. To sustain a

conviction under § 1957, the government must prove that the defendant (1)

engaged or attempted to engage, (2) in a monetary transaction, (3) in criminally

derived property, (4) knowing that the property is derived from unlawful activity,

and (5) the property is, in fact, derived from specified unlawful activity. United

States v. Massey, 48 F.3d 1560, 1565 (10th Cir. 1995).

Mr. Mathew was convicted for cashing two checks payable to himself

drawn on the account of Dr. Craft’s First Lenape Nation Bank, which in turn was

an account at the First National Bank of Oklahoma. Mr. Mathew argues that there

was insufficient evidence to prove that he knew that the money was criminally

derived. However, the government provided evidence that Mr. Mathew knew that

the funds in the First Lenape Nation account came primarily from investors, and

that he knew that those funds were fraudulently obtained. The government need

not meticulously trace the funds involved in a monetary transaction offense or

prove that the funds could not have come from a legitimate source. See United

States v. Johnson, 971 F.2d 562, 570 (10th Cir. 1992). The government’s

evidence was sufficient to support an inference that Mr. Mathew had the requisite

knowledge that the money from the checks came from illegal activity.

-20-
 Mr. Dazey was convicted of several counts of wire fraud based on cell

phone conversations between Dr. Craft and investors. Mr. Dazey concedes that

he gave Dr. Craft the cell phone that he used for these conversations. Mr. Dazey

contends, however, that there was no evidence that he knew or intended that the

phone would be used to further a fraudulent scheme.

In order to sustain a conviction for aiding and abetting wire fraud, the

government must prove that Mr. Dazey willfully assisted the perpetrators of the

wire fraud crimes, and that he did so with the requisite intent to defraud. United

States v. Rivera, 295 F.3d 461, 466 (5th Cir. 2002). As set forth in Part II(A)(1)

above, the government provided substantial circumstantial evidence that Mr.

Dazey was a knowing participant in the Wealth-Mart fraud. This same evidence

supports an inference that, when he gave the cell phone to Dr. Craft, he intended

that the phone would be used to facilitate their fraudulent scheme.

Mr. Dazey also challenges the sufficiency of evidence for his money

laundering conviction. He claims there was insufficient evidence that the money

he transferred from his account to the First Lenape account actually came from

illegal activity and that he knew that the money was criminally derived. Mr.

Dazey was convicted of money laundering for wiring $100,000 from an account

he controlled to an account at Dr. Craft’s First Lenape Nation Bank. The

evidence showed that on August 29, 1997, Mr. Dazey’s account balance was $46,

-21-
691.07. Gov’t Exh. 303. Throughout September, Mr. Dazey received four

transfers totaling about $300,000 of investors’ funds from Dr. Craft, including a

transfer of $150,000 on September 29. Id. That same day, Mr. Dazey transferred

$100,000 back out of his account to First National Bank of Chickasha, Oklahoma,

in the name of Dr. Craft’s First Lenape bank. Gov’t Exh. 303.7. Without the

receipt of the investors’ funds throughout September, Mr. Dazey’s account did not

have sufficient funds to wire the $100,000. This is sufficient evidence to show

that the transaction involved criminally derived property. See Johnson, 971 F.2d

at 570.

As for the intent element, the government provided substantial

circumstantial evidence that Mr. Dazey intentionally entered a conspiracy with

Dr. Craft to defraud investors via the sham Wealth-Mart trading program, as

discussed in Part II(A)(1) above. This same evidence would allow a reasonable

jury to conclude that Mr. Dazey knew that the $100,000 he transferred was

fraudulently obtained.

Ms. Griffith argues that there was insufficient evidence to sustain her

convictions on several counts of wire fraud. These convictions were based on

wire transfers to Wealth-Mart from investors that Ms. Griffith brought into the

program. Ms. Griffith challenges these convictions on the same ground as her

conspiracy conviction, namely, that there was insufficient evidence that she knew

-22-
that Wealth-Mart was a fraud. We reject this argument for the reasons explained

in Part II(A)(1) above.

B. Jury Instruction

Dr. Craft contends that the jury instruction on aiding and abetting

erroneously stated that a defendant could be found guilty of conspiracy without

the commission of an overt act. The government responds that a copy of the form

jury instruction that was sent to Dr. Craft’s appellate counsel omits the “overt

act” requirement, but that the instruction that was actually used at trial contains

the necessary language. The government is correct. See Griffith App., Vol. 1,

doc. 230, Instruction No. , “Conspiracy and Aiding and Abetting –

Distinguished.” There was no error.

C. Severance

Before trial, Ms. Griffith moved for severance, arguing that being tried

jointly with the other defendants would deprive her of a fair trial. The district

court denied the motion on the ground that Ms. Griffith had not adequately

demonstrated that she would be prejudiced by a joint trial. We review a district

court’s denial of a motion for severance for abuse of discretion. United States v.

Zafiro, 506 U.S. 534, 538-39 (1993); United States v. Linn, 31 F.3d 987, 992

(10th Cir. 1994).

Ms. Griffith contends that she should have been granted a separate trial for

-23-
two reasons. First, she argues that she and her co-defendants had mutually

antagonistic defenses, as her defense required her to point the finger at Dr. Craft

and Denise Jones. Second, Ms. Griffith claims that the “spillover” effect from the

overwhelmingly damaging evidence against Dr. Craft prejudiced her, as she was

tainted by association with Dr. Craft even though the evidence directly against her

was slight.

To warrant a finding that a district court abused its discretion by not

severing a trial, the conflict between the defendants’ defenses must be such that

“the jury, in order to believe the core of one defense, must necessarily disbelieve

the core of the other.” Linn, 31 F.3d at 992 (quoting United States v. Swingler,

758 F.2d 477, 495 (10th Cir.1985)). Ms. Griffith’s defense was not mutually

exclusive in this sense with the other defendants’ defenses. It would be perfectly

logical for the jury to believe both that Ms. Griffith believed that Wealth-Mart

was legitimate and that Dr. Craft himself believed in the program. The district

court did not abuse its discretion in denying severance on this ground.

As for the second ground, a defendant cannot obtain severance simply by

showing that the evidence against a co-defendant is more damaging than the

evidence against herself. United States v. Emmons, 24 F.3d 1210, 1218-19 (10th

Cir. 1994). The Supreme Court, however, has noted that “[w]hen many

defendants are tried together in a complex case and they have markedly different

-24-
degrees of culpability, [the] risk of prejudice is heightened.” Zafiro, 506 U.S. at

539. That is an apt description of this case. Nevertheless, even in such

situations, severance is not necessarily required because “less drastic measures,

such as limiting instructions, often will suffice to cure any risk of prejudice.” Id.

Moreover, the Supreme Court has made it clear that the “determination of the risk

of prejudice and any remedy that may be necessary” should be left to “the sound

discretion of the district courts.” Id. at 541.

The district court’s conclusion that a joint trial would not be sufficiently

prejudicial to warrant severance was not an abuse of discretion. Although the

case was complex, it should not have been inordinately difficult for the jury to

separate the single, crucial question of Ms. Griffith’s defense (whether she knew

Wealth-Mart was a fraud) from the other issues in the case. The jury was

appropriately instructed that each count was a separate crime and that they were

to consider the culpability of each defendant separately. See Griffith App., Vol.

1, doc. 230, Instruction Nos. __, “Counts are Separate Crimes” and “Consider

Each Defendant.” Finally, the jury verdict itself suggests that the jury considered

each defendant separately, because although Dr. Craft was convicted on all

counts, each of the other defendants, including Ms. Griffith, was acquitted of

some of the charges against them.

D. Admission of Notes

-25-
 At trial, the government offered testimony from several people who

attended Wealth-Mart’s Colorado seminars. Some of these investors took notes.

The government offered, as exhibits, the seminar notes of three such investors.

The district court admitted the notes over defense counsel’s objection. On appeal,

Appellants Craft and Dazey contend that the district court erred in admitting the

notes. We review a district court’s evidentiary rulings for abuse of discretion,

and our review of decisions to admit evidence over hearsay objections is

especially deferential. United States v. Hernandez, 333 F.3d 1168, 1176 (10th

Cir. 2003).

Appellants claim the notes are inadmissible hearsay. Hearsay is an out-of-

court statement offered to prove the truth of the matter asserted. See Fed. R.

Evid. 801(c). The government argues that the notes are not hearsay, because they

were offered to prove only the content of the seminar speeches and not the truth

of what was said. This is true in part, but the notes are still hearsay insofar as the

notes are in effect an out-of-court assertion that Dr. Craft and Mr. Dazey said

certain things at the seminars. The notes were offered to prove the truth of that

assertion, and therefore they fit the definition of hearsay.

Federal Rule of Evidence 803(5) provides an exception to the hearsay rule

for a witness’ recorded recollection:

A memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable

-26-
 the witness to testify fully and accurately, shown to have been made
or adopted by the witness when the matter was fresh in the witness’
memory and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not itself
be received as an exhibit unless offered by an adverse party.

When defense counsel objected to admission of the notes, the district court

asked “Why is this not a past recollection recorded?” Tr. 47. Defense counsel

responded, “We don’t think the foundation has been established for that.” Id.

The district judge himself then asked the witness, “Did you make these notes

contemporaneously with the events that occurred?” Id. at 48. The witness

responded affirmatively, and the judge permitted the witness to continue

testifying about the notes and also admitted the notes as an exhibit. 1

On appeal, the appellants acknowledge that the judge and the government

laid a partial foundation for admission of the notes under Rule 803(5), but they

claim that the witnesses’ inability to testify fully and accurately from memory was

never established. The government concedes that neither the prosecutor nor the

court specifically asked the witnesses whether their memory was sufficient to

testify fully without the notes, but the government contends that the witnesses’

lack of memory is “[i]mplicit in the context of their testimony.” Appellee’s

1
This dialogue took place with respect to the first witness who testified
about notes she took at the seminars. The government laid a similar foundation,
establishing that the notes were taken contemporaneously with the event, for the
other two witnesses whose notes were also admitted as exhibits.

-27-
(Dazey) Br. 31.

Unfortunately, it is difficult to discern from the record exactly how much

the witnesses remembered about what they heard at the seminars. The

government’s examination generally takes the form of a running commentary on

the notes. The prosecutor points to a particular phrase in the notes and asks what

it means, and the witness explains the notation and elaborates on what Dr. Craft

or Mr. Dazey said on that topic. It is clear that the witnesses retained some

independent memory of what was said, and none of the witnesses actually stated

that he or she could not recollect any particular aspect of the seminars. In similar

situations, courts have held that it is error for the district court to admit evidence

under Rule 803(5) without a showing that the witness lacks sufficient memory to

testify fully. See Collins v. Kibort, 143 F.3d 331, 338 (7th Cir. 1998); United

States v. Felix-Jerez, 667 F.2d 1297, 1301-02 (9th Cir. 1982).

Even if the district court erred in admitting the notes without a proper

foundation, such an error does not require reversal of the appellants’ convictions

if it is harmless. A decision to admit evidence is harmless unless a substantial

right of a party is affected. Fed. R. Evid. 103(a). An error affecting a substantial

right is one which had a “substantial influence” on the trial’s outcome or which

creates a “grave doubt” as to whether it had such effect. United States v. Rivera,

900 F.2d 1462, 1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United

-28-
States, 328 U.S. 750, 765 (1946)).

We are convinced that the district court’s decision to admit the notes did

not have a substantial influence on the outcome of the trial. In so concluding, we

acknowledge that the content of the pitch delivered by Mr. Dazey and Dr. Craft at

the seminars was an important part of the government’s case against Mr. Dazey.

The government sought to show that Mr. Dazey’s role at the seminars was to

stimulate investments in Wealth-Mart by hyping international investment

opportunities of the sort that Wealth-Mart offered and presenting himself as an

international man of financial mystery with inside contacts and special access to

the international banking system. The notes supported this claim, because the

witnesses jotted down some of the dizzying stream of financial jargon that Mr.

Dazey presented to the audience. Nevertheless, there was a sufficient supply of

properly admitted evidence about what Mr. Dazey said at the seminars to make

the additional evidence contained in the notes immaterial.

First, the note-takers themselves provided substantial evidence, from

memory, about Mr. Dazey’s presentations, describing them generally as

explanations of investment opportunities in international bank-related

instruments. Second, several other witnesses testified from memory about Mr.

Dazey’s presentations and described them in terms consistent with the notes.

Some even provided additional specific details, such as Mr. Dazey saying he

-29-
executed the trading by which the Wealth-Mart investment made money, that he

had worked for the Nixons and Rockefellers and helped to make their fortunes,

and that he wore an ankle bracelet when traveling overseas so that the

international financial movers and shakers would always know where he was. Tr.

939-941. Finally, Mr. Dazey himself testified about his participation at the

seminars in Colorado, summarizing his remarks as a presentation on:

the international banking system as it relates to the issuance of
different types of debenture or credit instruments.
Going back to the understanding of what I was trying to do in
the factoring concept of buying mid-term notes, working through
securities traders, things of this nature, was an opportunity to simply
point out the opportunity of international factoring in different types
of commercial paper, whether it be standby letters or letters of credit
or whatever.

Tr. 2208-09. This learned discourse is, at least to our untrained minds,

substantially similar to the way Mr. Dazey’s remarks were characterized in the

notes. Mr. Dazey also admitted that he talked about “prime bank guarantees” at

the seminars. Moreover, Mr. Dazey introduced as an exhibit his own notes, from

which he delivered his lectures, and these contain references to “bank debenture

trading programs” and other terminology consistent with Wealth-Mart’s program.

Tr. 2213-16; Defendant Exh. 64, 65. In sum, there was so much additional

evidence about the nature of Mr. Dazey’s seminar presentations that the addition

of the notes almost certainly did not affect the outcome of the trial.

Any error in admitting the notes was also harmless as to Dr. Craft. The

-30-
content of Dr. Craft’s speeches at the seminars was much less important to the

case against him than Mr. Dazey’s speeches were to Mr. Dazey’s case. As noted

in Part II(A)(1) above, the evidence against Dr. Craft was overwhelming.

Among all the evidence showing that Dr. Craft was the operational leader and

charismatic force behind the Wealth-Mart program, evidence showing that he

praised the program at the Colorado seminars added little. Moreover, several

witnesses, including the note-takers, testified from memory about the essentials

of Dr. Craft’s presentations. The inclusion of the notes therefore could not have

affected the outcome of the trial.

Appellants also point out that the district court should not have admitted

the notes into evidence as exhibits. Under Rule 803(5), even if the proper

foundation had been laid to admit the notes as a past recollection recorded, the

notes should have been read into evidence and not received as an exhibit. The

only rationale discernible to us for requiring that notes be read aloud into the

record rather than received into evidence is so that the “past recollection

recorded” evidence is treated on par with the oral testimony presented at trial.

Otherwise, the jury might, in its deliberations, tend to privilege the notes that it

gets to take into the jury room over the oral testimony that might already be half-

forgotten. In this case, the likelihood that the jury overemphasized the notes,

simply because they were admitted as exhibits rather than read aloud at trial, was

-31-
vanishingly small. The notes themselves, without the accompanying testimony of

the note-takers, are fairly inscrutable. Some of the handwriting is illegible, and

even where the words are discernible, they mostly form sentence fragments

whose meaning is less than obvious. Moreover, this is not a case where the jury

was sitting in the jury room with nothing but the erroneously admitted notes in

front of them. During the trial, the court admitted hundreds of documents as

exhibits. The government’s exhibits fill twenty three-ring binders. It is difficult

to imagine that the jury, awash as it was in a flood of documentary exhibits,

improperly focused on a few pages of difficult to discern notes at the expense of

the rest of the evidence presented at trial.

E. Admission of Lulling Letters and other Documents

Appellant Griffith challenges the district court’s admission of letters,

emails, and recorded telephone calls between Ms. Griffith and various investors.

The parties refer to these communications as “lulling letters,” because they

generally take the form of Ms. Griffith attempting to reassure concerned investors

that they would get their money back. See United States v. Trammell, 133 F.3d

1343, 1352-53 (10th Cir. 1998) (quoting United States v. Maze, 414 U.S. 395, 403

(1974)) (defining “lulling letter” as a communication “designed to lull the victims

into a false sense of security, postpone their ultimate complaint to the authorities,

and therefore make the apprehension of the defendant . . . less likely”). Ms.

-32-
Griffith maintains that these communications were not probative of her criminal

intent because she made them more than a year after Wealth-Mart had stopped

soliciting investments and because she disclosed to some of the investors that the

FBI was investigating Wealth-Mart. According to Ms. Griffith, the

communications’ probative value was therefore outweighed by the danger of

unfair prejudice, and the district court should have excluded them under Federal

Rule of Evidence 403.

The district court did not abuse its discretion in admitting the

communications. The communications were relevant to the jury’s consideration

of whether Ms. Griffith knew that Wealth-Mart was a fraud. The fact that Ms.

Griffith was constantly fending off frustrated investors’ calls and letters with

increasingly implausible excuses was probative of whether she was knowingly

defrauding people or innocently following orders from Dr. Craft. The

communications do not lose that relevancy simply because Ms. Griffith made

them after Wealth-Mart stopped soliciting investors or because she acknowledged

an FBI investigation. Moreover, Ms. Griffith has not explained how the evidence

raised the danger of unfair prejudice, as opposed to simply asserting that the

evidence harmed her defense.

Ms. Griffith also challenges the admission of evidence regarding a civil

securities fraud suit. At trial, the government moved for admission of a civil

-33-
securities fraud complaint that some Wealth-Mart investors filed against Dr. Craft

and Ms. Griffith. Defense counsel objected, and the district judge called all

counsel to the bench to discuss the objection. Tr. 1697. Dr. Craft’s counsel did

not want the complaint itself admitted because its allegations were

unsubstantiated, but offered to stipulate to the facts that Dr. Craft and Ms.

Griffith had been sued for securities fraud, had been served with the complaint,

and that a default judgment had been entered against Dr. Craft. Tr. 1698. The

government and Ms. Griffith’s counsel agreed to the stipulation. Id. The district

judge then suggested that the government could implement the stipulation by

withdrawing its request to admit the documents in exchange for being allowed to

ask the witness (an FBI agent) questions about the lawsuit to elicit only the

stipulated facts. Tr. 1699-1700. The judge asked whether that arrangement was

satisfactory to everyone, and no one objected. Tr. 1700. The agent then testified

to the stipulated facts only, saying nothing about the details of the suit’s

allegations.

On appeal, Ms. Griffith challenges the admission of the civil securities

fraud petition on confrontation clause grounds. The district court, however, did

not admit the petition. Instead, the only facts that the jury heard about the

securities fraud suit were the facts to which defense counsel stipulated. Defense

counsel’s stipulation to admission of evidence effectively waives the defendant’s

-34-
confrontation rights unless the defendant can show that the waiver constituted

ineffective assistance of counsel. United States v. Aptt, 354 F.3d 1269, 1284

(10th Cir. 2004). Ms. Griffith has made no such showing.

Finally, Appellant Griffith contends that the district court should not have

permitted cooperating witness Denise Jones to testify that she heard Ms. Griffith

and others at Wealth-Mart devising a plan to induce complaining investors to “re-

enter” their money into the program in order to buy themselves more time.

Although defense counsel did not object at trial, Ms. Griffith argues that the

testimony was inadmissible hearsay and highly prejudicial and that it was plain

error to allow it. However, the challenged testimony appears to be statements of

Ms. Griffith herself and other co-conspirators made in furtherance of the

conspiracy, and if so the statements are not deemed to be hearsay and are

admissible. See Fed. R. Evid. 801(d)(2)(E). The district court therefore did not

plainly err in admitting the testimony.

F. Closing Arguments

Mr. Craft and Ms. Griffith claim they were denied due process because of

various improper comments that the United States Attorney made during his

closing argument. When trial counsel lodges no objection at trial to the

prosecutor’s comments, we review claims of prosecutorial misconduct during

closing argument for plain error. United States v. May, 52 F.3d 885, 887 (10th

-35-
Cir. 1995).

In his closing argument, the prosecutor referred to the tape-recorded

December 17, 1997 meeting, at which Dr. Craft spoke and Ms. Griffith was

present. At the meeting, Dr. Craft insisted that employees should characterize

customers’ relationship with Wealth-Mart as a money management contract rather

than an “investment.” Using the magic word “investment” would cross into the

“gray area of SEC or security . . . entities and they don’t need much more than

that to come swoopin’ in.” Appellee’s (Griffith) App. 20. Dr. Craft went on:

“Now they can be stopped. Now we have done it a half a dozen times in the last

eighteen months. But it always cost money, it cost time, it cost effort.” Id.

The United States Attorney argued that these references to potential SEC

investigations supported an inference that Dr. Craft and Ms. Griffith were aware

that Wealth-Mart was a fraud. Appellants Craft and Griffith contend that the

prosecutor’s argument takes the reference to the SEC out of context and

exaggerates its importance. This may be so, but questions of context and

emphasis are what opening and closing statements are about. The prosecutor is

entitled to argue to the jury that it should draw reasonable inferences from the

evidence to support the government’s theory of the case. United States v.

Espinosa, 771 F.2d 1382, 1402 (10th Cir. 1985) (holding that the prosecutor at

closing argument is free to make fair comment on the evidence and draw

-36-
reasonable inferences from it). One of the central issues at trial was whether Dr.

Craft and the other defendants knew that Wealth-Mart was defrauding its

investors. The fact that Dr. Craft told employees that they needed to take steps to

stop the SEC from “swoopin’ in” because the SEC had already tried to swoop in

six times is relevant to what Dr. Craft and those employees thought about Wealth-

Mart’s legitimacy. It would not be unreasonable for the jury to conclude that the

defendants’ concerns about the SEC supported the finding that they were aware

that their business was fraudulent. The prosecutor was therefore entitled to make

this argument to the jury. If defense counsel believed Dr. Craft’s SEC remarks

were unimportant or subject to a different interpretation, he was free in his turn to

make such arguments to the jury in his own closing statements.

The appellants also argue that the prosecutor improperly commented on

their failure to testify at trial. The prosecutor said

I’m not going to try to cover all of the evidence. You all were
obviously paying attention. You know what the evidence is. You
don’t need me to merely repeat what the defendants have said – I
mean, what the victims and the other witnesses have said.

Tr. 2478. Although a prosecutor may not comment on a defendant’s failure

to testify, “we will not consider a statement improper in this respect unless

it was manifestly intended or was of such character that the jury would

naturally and necessarily take it to be a comment on the failure of the

accused to testify.” Espinosa, 771 F.2d at 1402 (quoting United States v.

-37-
Bennett, 542 F.2d 63, 64 (10th Cir.1976), cert. denied, 429 U.S. 1048

(1977)) (internal quotation marks omitted). The prosecutor’s remark was

most likely inadvertent, he corrected himself immediately, and no reasonable

jury would interpret it as a comment on the defendants’ failure to testify.

The appellants allege that the prosecutor made various other improper

statements during closing argument, including an allegedly improper

reference to a civil securities fraud suit against Ms. Griffith, an improper

argument that Ms. Griffith’s role in the re-entry program suggests she knew

Wealth-Mart was a fraud, and an improper suggestion that juries should

convict the defendants in order to express society’s condemnation of fraud.

All of these remarks were fair comments on the evidence or on the jury’s

role and, in any event, none of them was sufficiently egregious or

prejudicial to warrant reversal under the plain error standard of review.

G. Expert Testimony

At trial, the government called an expert witness, Herb Biern, a senior

official at the Federal Reserve Board, to testify about prime bank frauds.

Mr. Biern testified that he had led inter-agency efforts to combat prime bank

frauds for the past decade and that such frauds are very common. Mr. Biern

told the jury that there is no such thing as a “prime bank” and that the secret

trading markets that prime bank fraudsters promote do not exist. He

-38-
explained some of the characteristic “hallmarks” of prime bank frauds,

including references to the secret markets of international banks, promises

of unrealistically high returns, use of technical-sounding financial jargon in

a nonsensical way, and an emphasis on secrecy. Mr. Biern also testified that

the Wealth-Mart bank debenture trading program, as described in a

government exhibit, did not exist.

Appellants Craft and Griffith contend that the district court abused its

discretion in allowing Mr. Biern’s testimony on the ground that it “invaded

the province of the jury.” Appellant’s (Craft) Br. 41. It is somewhat

unclear what Appellants mean by this contention, because the Federal Rules

of Evidence allow an expert to offer opinion evidence even when it

“embraces an ultimate issue to be decided by the trier of fact.” Fed. R.

Evid. 704(a). However, an expert may not simply tell the jury what result it

should reach without providing any explanation of the criteria on which that

opinion is based or any means by which the jury can exercise independent

judgment. See United States v. Simpson, 7 F.3d 186, 188-89 (10th Cir.

1993). Expert testimony of this sort is sometimes excluded on the ground

that it “usurps the function of the jury in deciding the facts, or interferes

with the function of the judge in instructing the jury on the law.” Id. at 188.

We therefore interpret the appellants’ argument as contending that the

-39-
district judge should have excluded Mr. Biern’s testimony on this basis.

We review a trial court’s admission of expert testimony for abuse of

discretion, and we will reverse only when that decision is “manifestly

erroneous.” Id. In addition, erroneous admission of expert testimony that

does not affect substantial rights and results in actual prejudice is deemed

harmless and does not warrant reversal. A.E., By and Through, Evans v.

Independent School District No. 25, 936 F.2d 472, 476 (10th Cir. 1991).

Under this standard of review, we must reject the appellants’ claim. Mr.

Biern’s testimony did not simply tell the jury to reach a particular verdict

based on his own say-so. Rather, he carefully explained the source of his

extensive knowledge of prime bank frauds and explained what attributes

these schemes, in his considerable experience, often share. Although he

also opined that any investment program using the word “prime bank” was a

fraud and that the Wealth-Mart trading program did not exist, he did not

directly testify that any particular defendant actually violated the law. Even

if his testimony arguably embraced the ultimate issue, such testimony is

permissible as long as the expert’s testimony assists, rather than supplants,

the jury’s judgment. See Specht v. Jensen, 853 F.2d 805, 808-09 (10th Cir.

1988).

Finally, any error in admitting the testimony was harmless, because

-40-
none of the defendants questioned the expert’s conclusion that there was no

secret prime bank trading program. No one contended that Wealth-Mart was

actually legitimate. The appellants’ defenses focused instead on their

alleged lack of knowledge of the fraudulent nature of Wealth-Mart, and Mr.

Biern’s direct testimony did not offer an opinion on the defendants’

knowledge or lack thereof.

On cross-examination, defense counsel asked whether he thought

someone who recruited investors for a prime bank scheme might herself

have been duped and genuinely believed in the scheme. Mr. Biern conceded

that it was possible, but hard for him to believe. Tr. 839-40. On appeal,

Appellants Craft and Griffith object to this testimony, but any error was

invited by defense counsel’s question. See Evans, 936 F.2d at 477 (holding

that any error prompted by a direct question from defense counsel is

harmless).

H. Mr. Mathew’s Sentence

Mr. Mathew argues that the district court should have granted him a

two-level reduction for acceptance of responsibility. Mr. Mathew

acknowledges that he put the government to its burden of proof at trial.

Nevertheless, he argues that this should not count against him because he

was acquitted of the securities fraud charges at trial. He also points out

-41-
that, before being indicted, he and his lawyer provided information to the

government while they were negotiating the possibility of Mr. Mathew’s

pleading guilty and testifying for the government. Although those

negotiations fell through, Mr. Mathew asserts that his attempts to cooperate

manifested his acceptance of responsibility.

Whether the facts of a particular case warrant a reduction for

acceptance of responsibility is a question of fact that we review under the

clearly erroneous standard. United States v. Wooten, 377 F.3d 1134, 1145

(10th Cir. 2004). “The sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility. For this reason the determination

of the sentencing judge is entitled to great deference on review.” U.S.S.G. §

3E1.1, cmt. n.5. The district judge denied Mr. Mathew’s motion for an

acceptance of responsibility reduction based on the logical ground that Mr.

Mathew had not accepted responsibility: “I am fairly familiar with the case

and I know that the defendant has never actually admitted any guilt in this

case.” Appellee’s (Mathew) App., Vol. 2, 218. Mr. Mathew has not

demonstrated that this finding was clearly erroneous. He has not pointed to

any record evidence showing that he admitted guilt or accepted any

responsibility whatsoever for the millions of dollars that were stolen from

investors. Indeed, he continues to insist on appeal that there was

-42-
insufficient evidence to convict him on all counts. We therefore see no

basis for overturning the district court’s determination.

Mr. Mathew also challenges the district court’s determination of the

amount of loss. At sentencing, the district court applied a 15-point

enhancement to the base offense level on the ground that the loss was over

$10 million. At the sentencing hearing, Mr. Mathew’s attorney agreed that a

loss figure over $10 million was appropriate, based upon documents that Mr.

Mathew himself had introduced at trial:

Your honor, based upon Defendant’s Exhibit 18 that was introduced
at trial, I can’t validly object to the amount of loss figure, because
the documents reflect an $11 million figure, so as relates to that
number, Your Honor, I believe whatever objection that is, we would
have to agree that that’s the appropriate amount.

Appellee’s (Mathew) App., Vol. 2, 215. Mr. Mathew has failed to

demonstrate that it was clearly erroneous for the district court to find a loss

amount that was reflected in the defendant’s own exhibits and which was

agreed to by defense counsel. 2

I. Blakely, Booker & Plain Error

After oral argument, Mr. Dazey moved to file a supplemental brief

2
Mr. Mathew has not filed any motions with this Court challenging his
sentence under Blakely v. Washington, 124 S.Ct. 2531 (2004), perhaps because
trial counsel, by agreeing to the loss figure, may have waived Mr. Mathew’s
rights under Blakely. See id. at 2541 (explaining that a defendant may waive
Blakely rights by stipulating to relevant facts).

-43-
arguing that his sentence was invalid under Blakely v. Washington, 124 S.Ct.

2531 (2004). We granted that motion and now consider his argument in

light of the Supreme Court’s ruling in United States v. Booker, 125 S. Ct.

738 (2005).

The jury found Mr. Dazey guilty of one count of conspiracy to commit

fraud, 18 U.S.C. § 371, ten counts of wire fraud, id. § 1343, and one count

of money laundering, id. § 1957. During sentencing, the district court found

the following facts that were not established by the jury’s verdict: (1) that

the loss attributable to Mr. Dazey’s role in the conspiracy was more than $7

million (a 20 level enhancement under the Sentencing Guidelines); (2) that

there were fifty or more victims of the scheme (a 4 level enhancement); and

(3) that Mr. Dazey obstructed justice (a 2 level enhancement). Using these

judge-found facts, the district court determined Mr. Dazey’s offense level to

be 32. Mr. Dazey’s criminal history category of I and his offense level of

32 provided for a sentencing range of 121-151 months. See U.S.S.G. Ch. 5

Pt. A. The court sentenced Mr. Dazey to the bottom end of the range, 121

months. Mr. Dazey argues, and the government does not contest, that the

judge-found facts increased the his sentence beyond the maximum

-44-
authorized by the jury’s verdict. 3

Though Mr. Dazey contested the evidentiary basis of the judge-found

facts, he did not assert at trial that use of the Sentencing Guidelines violated

the Constitution. Because Mr. Dazey did not raise this issue below, we

review the district court’s sentencing decision for plain error. United States

v. Gonzalez-Huerta, No. 04-2045, slip op. at 7 (10th Cir. 2005) (en banc);

United States v. Hurlich, 348 F.3d 1219, 1220 (10th Cir. 2003); cf. Booker,

125 U.S. at 769 (“[W]e expect reviewing courts to apply ordinary prudential

doctrines, determining, for example, whether the issue was raised below and

whether it fails the ‘plain-error’ test.”).

3
It is not possible to determine the exact offense level authorized by the
jury’s verdict because the indictment does not specify an amount of loss
attributable to Mr. Dazey’s involvement in the conspiracy. A defendant convicted
of conspiracy is accountable for conduct that was in furtherance of the conspiracy
and was reasonably foreseeable in connection with the criminal enterprise.
U.S.S.G. § 1B1.3(a)(1)(A). The commentary to this guideline explains that when
a conspiracy count is worded broadly “the scope of the criminal activity jointly
undertaken by the defendant . . . is not necessarily the same for every participant.”
Id. § 1B1.3 n. 2.
The conspiracy count in this case, which jointly indicts five individuals, is
written at a general level and does not contain sufficient detail to determine the
amount of loss that Mr. Dazey could reasonably foresee. Accordingly, we cannot
determine the maximum sentence authorized by the jury verdict with precision.
Nevertheless, the substantial 20 level enhancement for the amount of loss
determined by the district court, as well as the enhancements for the number of
victims and obstruction of justice (neither of which were alleged in the
indictment), make it clear that the district court’s fact finding increased the Mr.
Dazey’s maximum sentence beyond the range established by the jury’s verdict.

-45-
 To establish plain error, Mr. Dazey must demonstrate that the district

court (1) committed error, (2) that the error was plain, and (3) that the plain

error affected his substantial rights. United States v. Cotton, 535 U.S. 625,

631 (2002); Gonzalez-Huerta, slip op. at 7. If all these conditions are met, a

court reviewing the error may exercise discretion to correct it if the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Cotton, 535 U.S. at 631-32; Gonzalez-Huerta, slip op. at 8.

We conduct this analysis “less rigidly when reviewing a potential

constitutional error.” United States v. James, 257 F.3d 1173, 1182 (10th

Cir. 2001).

1. Error

The district court committed constitutional error in sentencing Mr.

Dazey. In Booker, the Court extended the logic of Blakely to the Federal

Sentencing Guidelines, holding that the Sixth Amendment requires that

“[a]ny fact (other than a prior conviction) . . . necessary to support a

sentence exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the defendant or proved

to a jury beyond a reasonable doubt.” Booker, 125 U.S. at 756. To remedy

this constitutional infirmity created by applying judge-found facts to

mandatory sentencing guidelines, the Court severed the provision of the

-46-
Sentencing Reform Act making application of the Guidelines mandatory.

Id. at 756 (excising 18 U.S.C. § 3553(b)(1)). In Mr. Dazey’s case, the

district court, applying the then-mandatory Guidelines, relied on three facts

that the judge found by a preponderance of the evidence to increase his

sentence beyond the maximum authorized by the facts established by the

jury’s verdict. This sentencing methodology violated Mr. Dazey’s Sixth

Amendment rights.

The constitutional nature of this error distinguishes Mr. Dazey’s case

from cases such as Gonzalez-Huerta or United States v. Trujillo-Terrazas,

No. 04-2075 (10th Cir. 2005), in which the sentence was based entirely on

facts found by the jury, admitted by the defendant, or the fact of a prior

conviction. See Gonzalez-Huerta, slip op. at 6 (distinguishing between

“constitutional Booker error” and “non-constitutional Booker error”). Such

cases involve no violation of constitution and no misinterpretation of

operative statutes; they are “error” only in the sense that they violate the

remedial reconstruction of the Sentencing Reform Act performed by the

Booker Court. Because the error in sentencing Mr. Dazey was

constitutional, we relax our analysis on the remaining elements of plain

error review. See James, 257 F.3d at 1182.

2. Plain

-47-
 The error here is plain. To be plain, an error must be “clear or

obvious” under “current, well-settled law.” United States v. Whitney, 229

F.3d 1296, 1309 (10th Cir. 2000). An error is plain “where the law at the

time of trial was settled and clearly contrary to the law at the time of

appeal.” Johnson v. United States, 520 U.S. 461, 468 (1997). That is the

situation here. The district court sentenced Mr. Dazey in accordance with

law that was well-settled at the time, which we know now was in error. See

Gonzalez-Huerta, slip op. at 8.

3. Affects Substantial Rights

The more difficult question is whether the constitutional error in Mr.

Dazey’s case affects his substantial rights. For an error to have affected

substantial rights, “the error must have been prejudicial: It must have

affected the outcome of the district court proceedings.” United States v.

Olano, 507 U.S. at 725, 734 (1993); see Gonzalez-Huerta, slip op. at 8-9.

The burden to establish prejudice to substantial rights is on the party that

failed to raise the issue below. United States v. Vonn, 535 U.S. 55, 63

(2002); Olano, 507 U.S. at 734-35; Gonzalez-Huerta, slip op. at 8-9.

To demonstrate that the mandatory application of the Guidelines to

facts that a judge found by a preponderance of the evidence affected

substantial rights, a defendant must show a “reasonable probability” that the

-48-
defects in his sentencing altered the result of the proceedings. See U.S. v.

Dominguez Benitez, 124 S.Ct. 2333, 2339 (2004) (“In cases where the

burden of demonstrating prejudice . . . is on the defendant seeking relief, we

have invoked a standard . . . requiring the showing of ‘a reasonable

probability that, but for [the error claimed], the result of the proceeding

would have been different.’”) (quoting United States v. Bagley, 473 U.S.

667, 682 (1985) (opinion of Blackmun, J.)).

In a case of constitutional Booker error, 4 there are at least two ways a

defendant can make this showing. First, if the defendant shows a reasonable

probability that a jury applying a reasonable doubt standard would not have

found the same material facts that a judge found by a preponderance of the

evidence, then the defendant successfully demonstrates that the error below

affected his substantial rights. This inquiry requires the appellate court to

review the evidence submitted at the sentencing hearing and the factual

basis for any objection the defendant may have made to the facts on which

the sentence was predicated. Second, a defendant may show that the district

court’s error affected his substantial rights by demonstrating a reasonable

probability that, under the specific facts of his case as analyzed under the

4
Obviously, in a case of non-constitutional Booker error, only the second
of these possibilities is available, and the standard is applied more rigorously.

-49-
sentencing factors of 18 U.S.C. § 3553(a), 5 the district court judge would

reasonably impose a sentence outside the Guidelines range. For example, if

during sentencing the district court expressed its view that the defendant’s

conduct, based on the record, did not warrant the minimum Guidelines

sentence, this might well be sufficient to conclude that the defendant had

shown that the Booker error affected the defendant’s substantial rights.

We do not agree with the apparent conclusion of some other courts

that the mere difference between the imposed Guidelines sentence and the

sentence the defendant would have received based on the facts found by the

jury, admitted by the defendant, or based on the fact of a prior conviction, is

sufficient to satisfy the third prong of plain error. See United States v.

Hughes, No. 03-4172, slip op. at 14 (4th Cir. March 16, 2005); United

States v. Oliver, 397 F.3d 369, 379-80 (6th Cir. 2005). If the defendant is

unable to show a reasonable probability that either the factual predicate for

sentencing would be different if the district court were not required to

sentence on the basis of judge-found, preponderance-of-the-evidence facts,

5
Section 3553(a) requires sentencing courts to take account of factors such
as the “the nature and circumstances of the offense and the history and
characteristics of the defendant”, 18 U.S.C. § 3553(a)(1), the range suggested by
the Guidelines, id. § 3553(a)(4), and the need for sentencing uniformity for
defendants with similar criminal histories and found guilty of similar conduct, id.
§ 3553(a)(6).

-50-
or that the ensuing sentence would be different if the court were entitled to

greater latitude in considering the sentencing factors of 18 U.S.C. § 3553(a),

there is no basis for concluding that the error affected his substantial rights.

The analytical error committed by the courts that have reached the opposite

conclusion, we believe, is to treat the use of any use of extra-verdict

enhancements as constitutional Booker error. See, e.g., Hughes, slip op. at

17-21 (refusing to consider the remedial scheme contemplated by Booker to

determine whether Sixth Amendment error affected substantial rights);

Oliver, F.3d at 379-80. The error, instead, is the use of extra-verdict

enhancements in a mandatory guidelines system. See United States v.

Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir. 2005). To determine

prejudice to substantial rights, we must compare the actual sentence to the

sentence the defendant would have received under an “effectively advisory”

guidelines system—not to the sentence he would have received solely on the

basis of the facts found by a jury, admitted by the defendant, or based on

prior convictions. 6

6
Two circuits have suggested that their approach is compelled by the fact
that the Supreme Court remanded in Booker without questioning whether the
defendants’ substantial rights were affected. Hughes, slip op. at 20-21; United
States v. Milan, 398 F.3d 445, 453-54 (6th Cir. 2005). The simple answer to this
is that the government did not raise the plain error issue in Booker, and the Court
had no reason to consider it.

-51-
 While Mr. Dazey does not point to any evidence that the judge

believed that the Guidelines range was excessive in light of the facts found

by the court, he does argue that there was insufficient evidence for the jury

to find the sentence-enhancing facts that the judge found by a preponderance

of the evidence. Mr. Dazey contends there was not sufficient evidence for a

jury to conclude that he was responsible for the entire $14 million loss

attributable to the Wealth-Mart scheme. He argues that the jury’s verdict

does not establish that he was responsible for over $7 million in losses and

the evidence submitted at trial demonstrated that only $2.2 million ended up

in his bank accounts.

A defendant convicted of conspiracy is accountable for reasonably

foreseeable conduct in furtherance of the jointly undertaken criminal

activity. See U.S.S.G. § 1B1.3(a)(1)(A). However, a defendant’s

accountability only extends to the criminal activity that he agreed to

undertake. See id. § 1B1.3 n.2. This means “proper attribution at

sentencing requires . . . particularized findings about, the scope of the

specific agreement the individual defendant joined in relation to the

conspiracy as a whole.” United States v. Melton, 131 F.3d 1400, 1404 (10th

Cir. 1997) (internal quotation marks omitted). In the context of a

conspiracy to defraud, we have held that a defendant is accountable for the

-52-
entire loss created by a fraudulent organization if the defendant played a

major role in the organization and the losses were reasonably foreseeable.

See United States v. Osborne, 332 F.3d 1307, 1311-12 (10th Cir. 2003). If

the defendant’s role in the conspiracy was less substantial, then

particularized findings about the defendant’s agreement to join the

conspiracy must support the scope of the defendant’s role in the conspiracy.

See Melton, 131 F.3d at 1406. Moreover, a defendant is not accountable for

the conduct of members of a conspiracy “prior to the defendant joining the

conspiracy, even if the defendant knows of that conduct.” U.S.S.G. § 1B1.3

n.2.

At sentencing, Mr. Dazey strenuously contested the factual basis for

the sentencing enhancements, presenting evidence that he did not play a

central role in the Wealth-Mart scheme and did not reasonably foresee the

full scope of the fraudulent activity. His principal role in the scheme was as

an actor: he appeared at investor “seminars” in the guise of Wealth-Mart’s

international trader and lectured the guests about the profits to be had from

investing. There is no evidence that he participated in any of Wealth-Mart’s

day-to-day business meetings or operations, received investments, handled

finances, or participated in overall management. His name does not appear

on Wealth-Mart documents or confidentiality agreements. On the other

-53-
hand, the government stresses that Mr. Dazey had somewhat regular phone

contact with Dr. Craft, was a speaker at Wealth-Mart seminars, and received

over $2 million of investor funds in his bank account. While this

inculpatory evidence was more than sufficient to satisfy the old, clearly

erroneous standard, the question of what a jury would have concluded using

a reasonable doubt standard is closer.

In light of the constitutional nature of the error, we are compelled to

conduct this analysis “less rigidly” than we would otherwise. James, 257

F.3d at 1182. Taking the requisite, “less rigid[]” approach appropriate to

constitutional error, we conclude there is a reasonable probability that a jury

evaluating the evidence presented at trial would not determine, beyond a

reasonable doubt, that Mr. Dazey could reasonably foresee the full extent of

investor losses. Cf. United States v. Turner, 400 F.3d 491, 500 (7th Cir.

2005) (remanding a sentence to correct constitutional Booker error where

the defendant was one of fifteen people listed on an indictment for a money

laundering conspiracy, but the jury’s guilty verdict and the evidence

presented were insufficient for the district court to conclude that the

defendant was accountable for the entire amount of money laundered by the

conspiracy).

We further conclude there is a reasonable probability that if the

-54-
district judge had not thought himself bound by the mandatory Guidelines to

sentence in accordance with these judge-found, preponderance-of-the-

evidence facts, he might have determined that Mr. Dazey’s conduct

warranted a sentence below that prescribed for losses of more than $7

million. In the post-Booker world, district courts are accorded greater

latitude to determine sentences in light of the “seriousness of the offense.”

18 U.S.C. § 3553(a)(2)(A). District courts might reasonably take into

consideration the strength of the evidence in support of sentencing

enhancements, rather than (as in the pre-Booker world) looking solely to

whether there was a preponderance of the evidence, and applying

Guidelines-specified enhancements accordingly. We therefore hold that Mr.

Dazey has met his burden of establishing that the mandatory 20 point

enhancement, based on a judicial finding that he was responsible for all the

losses inflicted by Wealth-Mart, affected his substantial rights. 7

7
Mr. Dazey also maintains that the district court’s finding that there were
more than 50 victims was based on hearsay. While sentencing courts may
consider hearsay evidence provided that the evidence has sufficient indicia of
reliability, United States v. Shewmaker , 936 F.2d 1124, 1129 (10th Cir. 1991),
juries may not consider this type of evidence. However, use of this hearsay
evidence, by itself, does not violate Mr. Dazey’s substantial rights. Under
Booker , district courts must “consider the Guidelines ranges,” Booker , 125 S. Ct.
at 757, and nothing in the Supreme Court’s opinion suggests that the evidentiary
basis for Guidelines determinations (now that they are “effectively advisory”) has
changed in any way. Mr. Dazey has supplied no reason, other than the hearsay
(continued...)

-55-
 4. Integrity, Fairness, or Public Reputation

If a plain error affects the integrity, fairness, or public reputation of

judicial proceedings, it is in the discretion of the reviewing court to correct

the error. Johnson v. United States, 520 U.S. 461, 467 (1997). In an

instance of non-constitutional error the standard for satisfying the fourth

prong of the plain error test is demanding. See Dominguez Benitez, 124 S.

Ct. at 2335. A party that fails to raise an argument in the district court must

show that allowing a non-constitutional error to stand would be “particularly

egregious” and would constitute a “miscarriage of justice.” United States v.

Gilkey, 118 F.3d 702, 704 (10th Cir. 1997). In the context of an alleged

constitutional error, the relaxed standard means we do not require the

exceptional showing required to remand a case of non-constitutional error.

Nevertheless, the defendant still bears the burden of showing that an

exercise of our discretion is appropriate. United States v. Olano, 507 U.S.

725, 734 (1993); Gonzalez-Huerta, slip op. at 18.

We believe there are at least three reasons to support the exercise of

our discretion to correct this plain error. First, the error in this case was

7
(...continued)
nature of the evidence, to doubt that there were at least 50 victims, and he has
thus failed to show a reasonable probability that any Sixth Amendment error
involving this enhancement affected his substantial rights.

-56-
constitutional in nature, which entails a less rigorous application of the plain

error review burden. See United States v. Jefferson, 925 F.2d 1242, 1254

(10th Cir. 1991). Unlike the error in non-constitutional cases, which is

purely the result of the Supreme Court’s choice of remedy, Gonzalez-

Huerta, slip op. at 20, Mr. Dazey’s sentence was the result of a violation of

his Sixth Amendment rights.

Second, Mr. Dazey does not merely speculate that, if the district court

had understood it had discretion, it might have exercised leniency. Rather,

Mr. Dazey vigorously contested the judge-found facts that enhanced his

sentence. This distinguishes Mr. Dazey’s case from our cases holding that

Blakely/Booker violations are not plain error when the defendant did not

dispute a judge’s factual findings that led to an increase in his sentence,

even though, in such a case, the district court could have exercised its

discretion to reach a different sentence. See United States v.

Maldonado-Ramires, 384 F.3d 1228, 1231 n.1 (10th Cir. 2004); cf.

Gonzalez-Huerta, slip op. at 19-24 (finding, in a case of non-constitutional

Booker error, that the fourth prong was not satisfied). The strength of the

evidence supporting Guidelines enhancements was not relevant to the

mandatory results under the pre-Booker regime (provided the evidence

satisfied the preponderance standard); now, in the discretion of the district

-57-
court, it may be. See 18 U.S.C. § 3553(a)(2)(A) (requiring sentencing court

to consider, inter alia, the “seriousness of the offense”).

Third, the judge-found facts in this case substantially increased Mr.

Dazey’s sentence under the Guidelines. In Booker, the Court noted that the

significant divergence between the sentence authorized by the jury’s verdict

and the sentence imposed after judicial fact-finding demonstrates the extent

to which the right to have a jury find facts has atrophied. Booker, 125 S.Ct.

at 751 (describing an increase of ten years as “very serious”). That

divergence is present here. The judge-found fact that Mr. Dazey was

responsible for over $7 million in losses authorized a sizable 20 level

enhancement of his offense level. 8 While Booker permits this approach to

sentencing, allowing a substantial increase in Mr. Dazey’s sentence through

the now-suspect practice of mandatory enhancements, based on judge-found

facts, runs the risk of impugning the integrity and reputation of judicial

proceedings.

We do not necessarily believe all constitutional Booker errors that

8
As noted above, it is not possible to precisely determine Mr. Dazey’s
offense level authorized by the jury’s verdict due to the broad wording of the
indictment. For that reason we cannot precisely determine the increase in Mr.
Dazey’s sentence attributable to judicial fact finding. Nevertheless, the 20 level
enhancement authorized by the judicially-found fact ensures that the district
court’s sentencing methodology produced a significantly longer sentence than that
permitted by the jury’s verdict.

-58-
affect substantial rights also undermine the integrity, fairness, or public

reputation of judicial proceedings. However, Mr. Dazey received a

substantial enhancement on the basis of judge-found facts that he contested

at the sentencing hearing, and he has demonstrated a reasonable likelihood

that, applying proper post-Booker standards, the outcome might have been

significantly different. For these reasons, we believe this plain error

warrants our exercise of discretion to remand the case.

III. CONCLUSION

For the foregoing reasons, all Appellants’ convictions and Mr.

Mathew’s sentence are AFFIRMED. Mr. Dazey’s sentence is AFFIRMED

as to all arguments raised in his initial brief, but is VACATED in light of

Booker. The case is REMANDED to the district court for resentencing in

accordance with that decision.

-59-