In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1321
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RANDALL B. CAUSEY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 10‐CR‐88 — Rudy Lozano, Judge.
____________________
ARGUED NOVEMBER 8, 2013 — DECIDED MARCH 28, 2014
____________________
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Randall Causey was part of a
conspiracy that preyed on novice real estate investors during
the housing bubble in 2005–06, defrauding both borrowers
and lenders alike. A five‐day trial revealed that Causey and
his co‐conspirators would do just about anything to com‐
plete a sale and make a profit, whether it was making prom‐
ises they had no intention of keeping or falsifying receipts,
incomes or other information on loan forms. Causey, who
2 No. 13‐1321
was the only co‐conspirator that did not plead guilty, was
convicted and sentenced for his role in the fraud.
Causey raises five issues—four evidentiary and one sen‐
tencing—on appeal. First, he argues the court improperly
admitted irrelevant and prejudicial photographs taken of the
houses around the time of trial rather than at the time of the
sale. We reject this argument because the photographs gave
the jurors a sense of the size, location and style of the house,
and the jurors were repeatedly reminded when the pictures
were taken. Second, evidence of a fraudulent sale that took
place outside of the conspiracy was properly admitted be‐
cause Causey placed his intent to defraud and knowledge of
the fraudulent scheme at issue by claiming he was an inno‐
cent pawn, and this sale demonstrated his fraudulent
knowledge and intent. Third, a defense witness’s testimony
was properly excluded as undisclosed expert testimony be‐
cause the witness had no personal knowledge of the transac‐
tions at issue and was asked instead about industry norms,
which is only permissible if a witness is qualified as an ex‐
pert. Fourth, Causey argues the district court erred in allow‐
ing an unqualified co‐conspirator to give broad expert testi‐
mony and allowing her to testify as both a fact and expert
witness without a limiting instruction. Since the witness was
never referred to as an expert in front of the jury, there was
extensive cross examination about her credentials and the
basis for her opinion, and her opinion was not significant to
the government’s case, we reject Causey’s arguments. Finally,
a two‐level sentencing enhancement for being an “organizer,
leader, manager, or supervisor of the conspiracy” was
properly assessed because Causey was responsible for re‐
cruiting the buyers into the conspiracy and exercised control
over them during their involvement, which included submit‐
No. 13‐1321 3
ting fraudulent paperwork during closings, and some buyers
were also uncharged criminally responsible parties.
We affirm the district court on each of these issues.
I. BACKGROUND
Sheila Chandler learned how to falsify documents and
close fraudulent loans as a mortgage broker in Gary, Indiana.
She became familiar with the Gary real estate market, in‐
cluding a house’s actual value, and, more importantly for her
purposes, what the house would appraise for after a little
cosmetic work. Sensing an opportunity, she devised a
scheme to defraud both lenders and buyers. As part of that
scheme, she approached Gordon Rainey in 2005 and sug‐
gested he start a construction company to make minimal
changes to the houses and then charge inflated amounts that
would be pocketed at closing. Defendant Randall Causey
was living at Rainey’s house at the time and asked if he
could be involved, and Causey and Rainey subsequently co‐
founded and jointly owned a construction company called
Netlink. With that, the conspiracy was off and running. By
the time the three were arrested, they had executed the
mortgage scheme twenty‐five times between July 2005 and
August 2006 in and around the Gary area.
The scheme worked as follows: First, the group needed
buyers who were real estate novices. Causey used charm
and false promises to recruit five of the seven buyers who
purchased eighteen of the twenty‐five Gary properties listed
in the indictment. With a buyer in place, Chandler would fill
out a mortgage application, falsifying income, down pay‐
ments and any other information to make the buyer a viable
loan candidate. She would then order appraisals, title work,
4 No. 13‐1321
and pre‐approval from the lender. The conspirators would
use “trainee” appraiser Henry Sterk to appraise most of the
houses at a greatly inflated price. The next step was to close
on the house. Chandler gave false information to the lenders
on the HUD‐1 statements, which itemize all charges im‐
posed upon a borrower and seller for the transaction. Once
the amounts on the HUD‐1 were paid, the title company told
Chandler how much remained of the loan. Chandler then
made up false construction invoices for that remainder. After
the closing, the conspirators divvied up the money paid for
the false invoices. Chandler received $2,000 cash per house,
while Causey received somewhere between $3,000 and
$5,000.
Causey was directly or indirectly responsible for recruit‐
ing five of the buyers, but we highlight the experiences of
two purchasers relevant to the appeal, Beatrice Mengich and
Toi Lisa Mark. Beatrice Mengich was brought into the
scheme by her aunt, Lillian Kimutai, who met Causey on a
singles telephone line. After Kimutai bought into Causey’s
sales pitch, but before she realized she had been defrauded,
Kimutai recommended to Mengich that Mengich also invest
in Gary real estate. It was not until Mengich, at twenty‐three
years old, was flown up from North Carolina to Northwest
Indiana for the closing that she learned for the first time that
arrangements had been made for her to buy four houses ra‐
ther than one, as she had previously been told.
Toi Lisa Mark was originally from Gary and had a mutu‐
al friend with Causey named George Hawkins. Hawkins
suggested Mark invest with Causey. Like with other buyers,
Causey told Mark that if she bought houses, he would fix
them up, Netlink would handle all the property manage‐
No. 13‐1321 5
ment issues, and she could rent out the houses. Causey said
he was looking out for her because of their mutual friend,
and promised her at least $7,000 cash back. Mark eventually
bought two houses in May 2006, sight unseen. At the closing,
Mark pointed with concern to the paperwork showing that
she made a “major down payment,” which she knew she
had not, and Causey responded that he had taken care of it.
Once Mark purchased the home, Causey became non‐
responsive.
As the scheme with Chandler and Rainey was winding
down, Causey began recruiting buyers for a different
scheme he was running with one of Chandler’s former
coworkers. One of those buyers was Kristen Dudley who
bought a house in November 2006 when she was eighteen
years old, sight unseen. When Dudley reached out to Causey
later, he stopped taking her calls.
Ultimately, the authorities figured out the scheme and a
grand jury returned a nine‐count indictment against Causey,
Chandler and Rainey, among others. They were charged
with conspiring to commit wire fraud in violation of 18
U.S.C. § 1349, and eight counts of aiding and abetting the
commission of, and committing the offenses of, wire fraud in
violation of 18 U.S.C. § 1343. All except Causey pled guilty.
At trial, the government introduced twenty‐five group
exhibits of pictures of the properties taken between 2009 and
2012. The jury was repeatedly reminded that the photo‐
graphs represented the houses near the time of trial and not
how they appeared at the time of the conspiracy.
The government called Chandler to testify about her role
in the fraud. She had also been disclosed before trial as a po‐
6 No. 13‐1321
tential expert on real estate closings. Chandler testified about
the market conditions in Gary, at one point saying the Gary
housing market was inflated by 400%. Defense counsel did
not object to this estimate, but cross examined Chandler ex‐
tensively about her qualifications to give such an opinion
and regarding the facts on which that opinion was based.
The government also called Mark, Mengich and Dudley
to testify about their purchases. Defense counsel objected to
Dudley’s testimony as improper under Federal Rule of Evi‐
dence 404(b), arguing it was propensity evidence. The dis‐
trict court allowed the testimony, reasoning that it went to
intent, knowledge, and absence of mistake and that the pro‐
bative value was not substantially outweighed by the preju‐
dicial value.
Once the government rested, defense counsel called
Douglas Kvachkoff, the owner of the Indiana Title Network
Company. He began to testify as to the contents of a closing
folder he had with him, but when Kvachkoff admitted that
he “did not personally obtain the funding number” on the
folder and defense counsel began asking about how some‐
one in the industry would get a funding number, the court
barred the responses as improper expert testimony. Defense
counsel proffered that Kvachkoff would have testified that a
funding number is issued by lender once it has reviewed the
settlement statement (e.g., the HUD‐1) and is a necessary
precondition for the disbursement of the loan.
The jury returned a verdict finding Causey guilty on all
counts. At sentencing, the judge adopted the Presentence In‐
vestigative Report prepared by the Probation office, and ap‐
plied a two‐level enhancement under United States Sentenc‐
ing Guidelines (“U.S.S.G.”) § 3B1.1(c) for Causey’s role as an
No. 13‐1321 7
“organizer, leader, manager, or supervisor of the conspira‐
cy.” Causey objected, arguing that he was only a minor par‐
ticipant and instead deserved a two‐level reduction. The dis‐
trict court found that the two‐level enhancement was proper
because Causey was a major player in the crime and sen‐
tenced Causey to 108 months’ of imprisonment to be fol‐
lowed by three years supervised release.
This appeal follows.
II. ANALYSIS
A. Evidentiary Rulings
Causey challenges four evidentiary rulings by the district
court. We review the decision to allow or exclude evidence
for an abuse of discretion. United States v. Garcia‐Avila, 737
F.3d 484, 490 (7th Cir. 2013). “The district court’s evidentiary
rulings are afforded special deference and will be reversed
‘only where no reasonable person could take the view
adopted by the trial court.’” Id. (quoting United States v.
Reese, 666 F.3d 1007, 1015 (7th Cir. 2012)). “Even when an
abuse of discretion occurs, however, reversal only follows if
admission of the evidence affected the defendant’s substan‐
tial rights.” Id. (quoting United States v. Richard, 719 F.3d 746,
758 (7th Cir. 2013)). We ask “whether an average juror would
find the prosecution’s case significantly less persuasive
without the improper evidence.” Id. (quoting United States v.
Miller, 673 F.3d 688, 700 (7th Cir. 2012)).
1. No Abuse of Discretion in Admitting the
Photographs
Causey argues that the district court improperly admit‐
ted irrelevant and overly prejudicial photographs of the
homes because they were taken between three and six years
8 No. 13‐1321
after the conspiracy ended. “To be relevant, evidence need
not conclusively decide the ultimate issue in the case, nor
make the proposition appear more probable, but it must in
some degree advance the inquiry.” Thompson v. City of Chi.,
472 F.3d 444, 453 (7th Cir. 2006) (internal citations omitted);
see Fed. R. Evid. 401. While there is a question as to whether
defense counsel preserved proper objections to all the exhib‐
its—and therefore whether the plain error or abuse of discre‐
tion test applies—it does not affect our analysis because
these photographs were relevant under either test. See United
States v. Cheek, 740 F.3d 440, 447 (7th Cir. 2014) (applying
plain error test when no timely objection). Although the pho‐
tographs were taken after the conspiracy was over, they
were relevant because they presented the jury with the lay‐
out, size, location and composition of the houses, and also
aided various witnesses in explaining their experiences. That
is enough to advance the inquiry.
Causey’s Rule 403 argument is stronger, but fails because
any potential prejudice was mitigated by the parties’ actions.
Causey argues that the photographs were prejudicial be‐
cause they showed the houses in various states of disrepair
and therefore would have given the jury a distorted percep‐
tion of the houses’ worth, which he claims is an important
factor when the government argues the estimates were in‐
flated. Federal Rule of Evidence 403 permits the court to ex‐
clude otherwise relevant evidence “if its probative value is
substantially outweighed by a danger of … unfair prejudice,
confusing the issues, [or] misleading the jury … .” Fed. R.
Evid. 403. Here, there was little, if any, prejudice, and cer‐
tainly not enough to substantially outweigh the pictures’
probative value. The government said in its opening state‐
ment, and the photographer reiterated during direct and
No. 13‐1321 9
cross examination, that the photographs were taken around
the time of the trial; the government introduced a chart,
without objection, detailing which photos were taken and
when; and various witnesses testified to the differences be‐
tween the houses as depicted in the photographs and the
houses when purchased. Any prejudice or danger of mis‐
leading the jury was mitigated by these and numerous other
reminders that the photographs depicted the houses around
the time of trial and not near the time of the sale.
We understand from statements the government made at
oral argument that at least one mitigation effort, the chart,
was necessary because jurors were not allowed to take notes
during trial. While the decision whether to allow jurors to
take notes remains in the discretion of the trial court, see SEC
v. Koenig, 557 F.3d 736, 742 (7th Cir. 2009), we have consist‐
ently encouraged the practice of allowing jurors to take
notes and have acknowledged as much by incorporating the
practice into the Seventh Circuit Pattern Criminal Jury In‐
structions. See 7th Cir. Pattern Criminal Jury Instruction No.
3.18 (2012 ed); see also, e.g., United States v. McGee, 612 F.3d
627, 633–34 (7th Cir. 2010) (stating that taking notes is one
way to avoid jurors’ attention and memories from waning);
Moore v. Knight, 368 F.3d 936, 941 (7th Cir. 2004) (reversing
denial of writ of habeas corpus and noting that jurors’ faulty
memories could have been influenced, in part, by their ina‐
bility to take notes at trial). A judge would not try a bench
trial without the ability to take notes, even though the trial
transcript can be generated post‐trial. It is difficult to under‐
stand why jurors should not have the same opportunity to
take notes.
10 No. 13‐1321
2. No Abuse of Discretion in Admitting Dudley
Transaction
Next, Causey argues that the district court erred by ad‐
mitting evidence of the Dudley transaction, a house sale
which occurred after the conspiracy with Chandler and
Rainey had ended. Causey argues that this transaction was
used to show he had a propensity to commit fraud and
therefore should have been excluded under Federal Rule of
Evidence 404(b).
While evidence of another “bad act” is “not admissible to
prove a person’s character in order to show that on a particu‐
lar occasion the person acted in accordance with the charac‐
ter,” it is admissible to prove motive, opportunity, prepara‐
tion, plan, knowledge, identity, absence of mistake, lack of
accident, or intent. Fed. R. Evid. 404. We have previously
used, and the district court applied, a four‐part test which
states that Rule 404(b) evidence is admissible if: (1) the evi‐
dence is directed towards establishing a matter other than
the defendant’s propensity to commit crimes charged; (2) the
other act is similar and close enough in time to be relevant;
(3) the evidence is sufficient to support a jury finding that
the defendant committed the other act; and (4) the probative
value of the evidence is not substantially outweighed by the
danger of unfair prejudice. See, e.g., United States v. Torres‐
Chavez, ____ F.3d ___, 2014 U.S. App. LEXIS 4229, at *6 (7th
Cir. 2013).
Causey’s defense at trial was that Chandler and Rainey
were the masterminds of the conspiracy and that he was a
pawn who did not know that he was part of a fraudulent
scheme. The government sought to introduce evidence of the
Dudley transaction to show that Causey spearheaded anoth‐
No. 13‐1321 11
er fraudulent scheme without Chandler and Rainey and that
he knew what he was doing when he entered into the mort‐
gage operation with Chandler and Rainey. While the line be‐
tween propensity and intent/knowledge can sometimes be
blurry, the Dudley transaction was directly relevant to
whether Causey intended to defraud the buyers in the
Chandler and Rainey scheme and whether Causey knew of
the scheme’s fraudulent nature. See, e.g., Jannotta v. Subway
Sandwich Shops, Inc., 125 F.3d 503, 517 (7th Cir. 1997) (affirm‐
ing decision to admit evidence of other fraudulent state‐
ments made outside of the alleged fraud).
Moreover, the Dudley transaction was sufficiently similar
to those in the Chandler and Rainey conspiracy to demon‐
strate Causey’s knowledge and fraudulent intent. While
Causey highlights ways in which the Dudley transaction was
different—no falsified financial forms or promises to find
tenants or give cash back—“[w]hen evidence is presented to
show intent, ‘[s]imilarity is relevant only insofar as the acts
are sufficiently alike to support an inference of criminal in‐
tent.’” United States v. Howard, 692 F.3d 697, 705 (7th Cir.
2012) (quoting United States v. Reese, 666 F.3d 1007, 1015 (7th
Cir. 2012)). Both schemes involved Causey’s recruitment of
novice female buyers, false promises, purchases without see‐
ing the houses, and Causey cutting off communication with
the buyers shortly after the closings. Additionally, the Dud‐
ley recruitment began six months after Causey recruited
Mark, which we have previously found is close enough in
time to permit the introduction of 404(b) evidence. See, e.g.,
United States v. Chapman, 692 F.3d 822, 827 (7th Cir. 2012)
(finding two years close enough in time to admit Rule 404(b)
evidence); United States v. Kreiser, 15 F.3d 635, 640 (7th Cir.
1994) (seven years); Howard, 692 F.3d at 705–06 (over one
12 No. 13‐1321
year). Because the characteristics of the schemes were suffi‐
ciently alike, they support an inference of criminal intent.
Next, Dudley and the seller both testified as to Causey’s
role in the fraudulent transaction, which is sufficient evi‐
dence to show he committed the act. Howard, 692 F.3d at 706
(finding witness testimony sufficient).
Finally, an act demonstrating Causey’s intent and
knowledge was especially probative given that the govern‐
ment needed to prove both to prevail on its causes of action.
United States v. Anderson, 580 F.3d 639, 646 (7th Cir. 2009)
(noting 18 U.S.C. § 1343 wire fraud requires proof that de‐
fendant “knowingly participated in a fraudulent scheme
with the specific intent to deceive or cheat the scheme’s vic‐
tims” and conspiracy requires proof that defendant “knew
of the essential nature and scope of the charged conspiracy
and that he intended to participate in it”). Causey himself
made the Dudley transaction even more probative when he
put his intent at issue by claiming he was an innocent pawn
in Chandler and Rainey’s game. United States v. Miller, 673
F.3d 688, 697 (7th Cir. 2012) (“[E]vidence tending to prove
intent becomes more probative [] when the defense actually
works to deny intent”); see also United States v. Stokes, 726
F.3d 880, 896 (7th Cir. 2013). While the probative value was
high, there was minimal prejudice because the testimony
was a brief part of the trial, it did not describe any details
about Causey that had not already been discussed, and the
district court “alleviated any unfair prejudice by giving a
limiting instruction.” United States v. Moore, 531 F.3d 496, 500
(7th Cir. 2008). The admission of the Dudley transaction was
not an abuse of discretion.
No. 13‐1321 13
3. Kvachkoff’s Expert Testimony Was Properly
Barred
Causey argues that the district court erred by barring
Kvachkoff’s testimony as expert opinion testimony that was
not disclosed in Causey’s pretrial Federal Rule of Criminal
Procedure 16 notice. Testimony that is based on “scientific,
technical, or other specialized knowledge” is expert testimo‐
ny, Fed. R. Evid. 702, a written summary of which must be
disclosed pretrial in a criminal case when certain conditions
are met. Fed. R. Crim. P. 16(b) (defendant must provide ex‐
pert summaries when government first discloses its sum‐
maries and requests defendant’s). Causey admits he did not
disclose Kvachkoff’s testimony before trial, but argues he did
not need to because it was not expert testimony.
Causey is correct that Kvachkoff began as an occurrence
witness when he testified as to the contents of a folder sitting
on his lap. But once Kvachoff said he had “no recollection of
this closing” referred to on the folder and defense counsel
began asking about industry practice for procuring closing
numbers, the testimony crossed into expert testimony. See
Fed. R. Evid. 702; United States v. Pansier, 576 F.3d 726, 737–
38 (7th Cir. 2009) (finding testimony about the characteristics
of forged banking forms to be expert testimony). These ques‐
tions required testimony based on “specialized knowledge”
of the industry and therefore necessitated expert opinion.
Because Causey admittedly did not file the required Rule 16
disclosure, the district court was within its discretion to ex‐
clude the expert testimony. See Fed. R. Crim. P. 16(d)(2)(C)
(noting that if a party fails to comply with Rule 16’s disclo‐
sure requirements, the court may “prohibit that party from
introducing the undisclosed evidence”); United States v. Hof‐
14 No. 13‐1321
feckner, 530 F.3d 137, 185 (3d Cir. 2008) (“Courts of appeals
have upheld the exclusion of experts [under Fed. R. Crim. P.
16] when defendants fail to serve timely notice of their intent
to call them as witnesses.”).
4. Admission of Chandler’s Expert Testimony
Was Harmless Error
Next Causey argues the district court erred in allowing
Chandler to testify as an expert. He specifically challenges
her statement that the Gary housing market was inflated by
400%, and he contends that the court erred in letting her tes‐
tify in a dual expert/lay testimony capacity without a limit‐
ing instruction.
The parties dispute the proper standard of review. Cau‐
sey claims we should review for abuse of discretion because
counsel objected to the foundation of Chandler’s opinions,
whereas the government claims we should review for plain
error because no objection was raised about Chandler’s qual‐
ifications as an expert or, specifically, the 400% question and
answer. We need not make this determination because the
argument ultimately fails under either standard since any
error that might have been made in admitting this testimony
was harmless. See Cheek, 740 F.3d at 450 (analyzing for harm‐
less error under plain error review); United States v. York, 572
F.3d 415, 429 (7th Cir. 2009) (analyzing for harmless error
under abuse of discretion review). The test for harmless er‐
ror is “whether, in the mind of the average juror, the prose‐
cution’s case would have been ‘significantly less persuasive’
had the improper evidence been excluded.” York, 572 F.3d at
429 (internal quotations omitted).
No. 13‐1321 15
Causey argues that Chandler was not qualified to give
expert testimony and the 400% comment was beyond the
scope of the government’s pretrial Rule 16 disclosure, which
said Chandler would testify about the process for real estate
closings. Even if it was an error to admit Chandler’s testimo‐
ny and even if such testimony exceeded the scope of the
government’s disclosure, the error was harmless. Chandler’s
expert testimony was of little value to the government’s case.
The government had to prove that the co‐conspirators de‐
frauded purchasers with false promises and defrauded lend‐
ers with false information. Chandler’s occurrence testimony
went to these facts. However, the extent to which the hous‐
ing market in Gary was inflated was beside the point; the
400% estimate was only relevant to explain how profitable
the scheme was because the higher the appraisal, the higher
the loan, and the more wiggle room there was to submit
false invoices. The government did not even mention the
400% figure in its closing.
Moreover, the government’s case was so strong without
Chandler’s expert testimony that we cannot find that the
prosecution’s case would have been “significantly less per‐
suasive” had it been excluded. Id. The government put on
testimony from Causey’s co‐conspirators who described
Causey’s involvement in the scheme, along with witnesses
and purchasers who had been defrauded, and it presented
physical evidence that showed the extent and nature of the
conspiracy.
Additionally, any potential harm by the error was miti‐
gated by defense counsel’s thorough cross examination of
Chandler regarding her qualifications. Defense counsel
pointed out that Chandler was not an appraiser, had done no
16 No. 13‐1321
time span analysis, and had never compared the Gary mar‐
ket to other areas. This reduced the chance that the jury
would attach undue weight to Chandler’s testimony. Admit‐
ting Chandler’s expert testimony, and specifically the 400%
comment, was therefore harmless error.
Finally, Causey’s argument that the district court erred in
allowing Chandler to testify in a dual capacity fails. The dis‐
trict court did not err in its handling of such testimony be‐
cause even if Chandler was an expert, it is unlikely that any
juror would have been confused by such testimony since the
court took “precautions to ensure the jury [understood] its
function in evaluating this evidence.” Id. at 425. The gov‐
ernment “did not explicitly present [Chandler] to the jury as
an expert. Consequently, there was little risk that the jury
might have been confused by [Chandler’s] ‘dual roles’ as
both an expert and lay witness, that [her] status as an expert
might overawe the jury, or that the jury might have mistak‐
enly believed that [her] expert opinions were based on facts
about the defendant not presented at trial.” Cheek, 740 F.3d at
450 (emphasis in original). Other precautionary measures
included the government’s foundational question—“[w]hat
information did you need to make that assessment”—and
defense counsel’s thorough cross examination. York, 572 F.3d
at 425 (finding “government’s establishing the proper foun‐
dation for the witness’s expert opinions and the district
court’s allowing the defense to rigorously cross‐examine the
expert” constituted precautions). While a limiting instruction
is one way to ensure the jury understands how to properly
evaluate the evidence presented, it is not the only way. Here,
such instruction was not necessary because there were ade‐
quate precautionary measures already in place.
No. 13‐1321 17
Even if we assume admitting Chandler’s expert testimo‐
ny was admitted in error, we need not address Causey’s ar‐
gument that he was prejudiced by cumulative trial error be‐
cause “we find that [defendant] did not identify more than
one error, [and so] the cumulative error doctrine does not
apply.” United States v. Moore, 641 F.3d 812, 830 (7th Cir.
2011). We affirm the district court’s evidentiary rulings.
B. No Error in Applying Two‐Level Sentencing En‐
hancement
Lastly, Causey argues that he did not qualify for the two‐
level sentencing enhancement under U.S.S.G. § 3B1.1(c) be‐
cause he was not an “organizer, leader, manager, or supervi‐
sor” of the conspiracy. We disagree.
We review the district court’s application of the Sentenc‐
ing Guidelines de novo and its findings of facts for clear er‐
ror. United States v. Harmon, 721 F.3d 877, 887 (7th Cir. 2013).
“Factual findings are overturned ‘only if our review of all
the evidence leaves us with the definite and firm conviction
that a mistake has been made.’” Id. (quoting United States v.
Bennett, 708 F.3d 879, 888 (7th Cir. 2013)). We may affirm the
application of U.S.S.G. § 3B1.1 on any grounds that are sup‐
ported by the record. United States v. Fox, 548 F.3d 523, 529
(7th Cir. 2008).
Section 3B1.1(c) of the Sentencing Guidelines allows for a
two‐level enhancement “[i]f the defendant was an organizer,
leader, manager, or supervisor in any criminal activity.”
U.S.S.G. § 3B1.1(c). The “defendant must have been the or‐
ganizer, leader, manager, or supervisor of one or more other
participants.” U.S.S.G. § 3B1.1 cmt. n.2. A “participant” is a
“person who is criminally responsible for the commission of
18 No. 13‐1321
the offense, but need not have been convicted.” Id. at cmt.
n.1.
Causey argues the enhancement was improper for three
reasons: (1) he only recruited three of the seven buyers; (2)
the district court improperly considered whether he was
“essential” to the offense; and (3) the enhancement requires
that a defendant exercise control over at least one other par‐
ticipant in the scheme, and Causey did not. First, the district
court did not err in finding that one of the factors that made
Causey an “organizer, leader, manager, or supervisor” was
that he recruited Mark and Mengich, in addition to the three
other buyers he admitting to recruiting. U.S.S.G. § 3B1.1 cmt.
n. 4 (noting “recruitment of accomplices” and “degree of
participation in planning or organizing the offense” are fac‐
tors to consider when determining if someone is a leader or
organizer); United States v. Robertson, 662 F.3d 871, 878 (7th
Cir. 2011) (finding recruitment of charged and uncharged
buyers in fraudulent real estate scheme supported applica‐
tion of the enhancement). While Hawkins re‐introduced
Mark to Causey, Mark made it clear that Causey brought her
into the scheme, told her what the business proposal was,
what role she would play, how she would receive a kickback,
and how Netlink would rehabilitate the house. It was not
clear error to find that Causey recruited Mark into the
scheme. Furthermore, while Lillian introduced Mengich to
the scheme, there are two facts that weigh heavily against
Causey’s argument that he did not recruit Mengich. He in‐
troduced Lillian to the scheme and therefore indirectly
caused Mengich to become part of the conspiracy. More tell‐
ingly, Causey believed he was owed money as a result of the
Mengich purchase, thereby taking credit for the sale. This
demonstrates that Causey himself believed that he brought
No. 13‐1321 19
Mengich to the scheme. It was not plain error to find that
Causey recruited both Mark and Mengich, and therefore to
find him responsible for five of the seven buyers.
Causey next argues that the district court’s finding that
Causey was “essential” to the scheme contravenes our
statement in United States v. Leiskunas that “playing a neces‐
sary role does not definitively prevent that same role from
being minor.” 656 F.3d 732, 739 (7th Cir. 2011). However, the
district court in Leiskunas did not consider the defendant’s
role in the scheme as a whole. Id. Here, the court did consid‐
er the context and gave numerous reasons outside of Cau‐
sey’s “essential” nature that he qualified for the two‐level
enhancement, including Causey’s position as co‐owner of
Netlink, his recruitment of buyers, and the broken promises
he made to the buyers he recruited. Because it was just one
consideration among many, the district court did not err in
noting that Causey was an “essential” player.
Causey’s final argument is that he could not be an “or‐
ganizer, leader, manager, or supervisor” because “Chandler
and Rainey were the true organizers and leaders” and Cau‐
sey did not exercise control over any other criminally re‐
sponsible party. This argument fails because we have repeat‐
edly held that a defendant can exercise control over a “crim‐
inally responsible” party for enhancement purposes even if
that individual was never charged, convicted or indicted for
the “criminally responsible” act. See, e.g., Robertson, 662 F.3d
at 878 (defendants exerted control over “participants who
were not charged” in fraudulent real estate scheme); United
States v. Knox, 624 F.3d 865, 874 (7th Cir. 2010) (finding de‐
fendant exercised control over an individual who was “nev‐
er criminally charged, [but] admitted that she knowingly
20 No. 13‐1321
participated in the scheme”). Mark was such a “criminally
responsible” party. She admitted to fraudulent activities
when she signed a HUD‐1 statement showing she had made
a “major down payment” on the house, which she knew was
not true. That she was also a victim does not prevent her
from being a “criminally responsible” party for sentencing
purposes. United States v. Vivit, 214 F.3d 908, 923 (7th Cir.
2000) (finding enhancement proper because some victims of
a fraudulent scheme were also uncharged criminally respon‐
sible parties who submitted fraudulent paperwork). It is also
clear that Causey exercised control over her. He not only
brought Mark into the scheme and convinced her to buy
houses, but she listened when Causey told her not to worry
about the fraudulent information on the forms she was sign‐
ing because he had taken care of it. Because Causey therefore
had control over Mark and she was a criminally responsible
party, the enhancement was proper.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.