United States v. David Tamman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50463
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-01165-PSG-2

DAVID TAMMAN,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted
November 21, 2014—Pasadena, California

Filed April 3, 2015

Before: William A. Fletcher and Jay S. Bybee, Circuit
Judges, and David Alan Ezra, District Judge.*

Opinion by Judge Ezra

*
The Honorable David Alan Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.
2 UNITED STATES V. TAMMAN

SUMMARY**

Criminal Law

The panel affirmed a conviction and sentence for
conspiracy to obstruct justice, accessory after the fact to mail
fraud and securities law violations, altering documents to
influence a federal investigation, and aiding and abetting false
testimony at an SEC deposition.

The panel held that the Sentencing Guidelines
commentary prohibiting simultaneous application of
the Broker-Dealer enhancement under U.S.S.G.
§ 2B1.1(b)(18)(A) (2012) (2014 version at U.S.S.G.
§ 2B1.1(b)(19)(A)) and the Special Skill enhancement
under U.S.S.G. § 3B1.3 does not apply when the Broker-
Dealer enhancement pertains specifically to a principal’s
offense and the Special Skill enhancement pertains to a
defendant-accessory’s offense.

The panel held that in calculating a loss figure greater
than $20 million under U.S.S.G. § 2B1.1(b)(1), the district
court correctly held that the full measure of the loss inflicted
by a co-defendant’s crime would have been foreseeable to the
defendant despite his status as a mere accessory to that crime.
The panel likewise held that in finding that the defendant’s
crime involved more than 50 victims under U.S.S.G.
§ 2B1.1(b)(2), the district court did not err by including
victims of the co-defendant’s crime, where the defendant did

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. TAMMAN 3

not have actual knowledge of those victims but the victims
were reasonably foreseeable to him.

The panel held that the district court did not err in finding
that the defendant, a practicing attorney and partner at a
major law firm, was competent to waive his jury trial and that
his waiver was knowing and intelligent.

The panel held that the district court did not plainly err
(1) in excluding a non-lawyer’s testimony reciting facts and
the legal conclusion that the defendant acted in conformity
with unidentified SEC rules and regulations and otherwise did
not break the law; (2) in determining that the district court
was capable of understanding, through a written proffer in a
trial brief rather than in live testimony in this bench trial, an
expert’s opinion regarding the defendant’s professional and
ethical duties as an attorney; and (3) in admitting
coconspirator nonhearsay testimony.

COUNSEL

Alan M. Dershowitz (argued), Cambridge, Massachusetts;
David Duncan, Zalkind Duncan & Bernstein LLP, Boston,
Massachusetts; William J. Genego, Santa Monica, California,
for Defendant-Appellant.

Paul G. Stern (argued) and Elana Shavit Artson, Assistant
United States Attorney, Office of the United States Attorney,
Los Angeles, California, for Plaintiff-Appellee.
4 UNITED STATES V. TAMMAN

OPINION

EZRA, District Judge:

Appellant David Tamman raises five issues in his appeal
from the district court’s judgment of conviction and sentence.
We begin by addressing an issue of first impression, that is,
whether the district court erred at sentencing by applying both
the “Broker-Dealer” enhancement under United States
Sentencing Guideline Manual (U.S.S.G.) § 2B1.1(b)(18)(A)
(2012) (2014 version at U.S.S.G. § 2B1.1(b)(19)(A)) and the
“Special Skill” enhancement under U.S.S.G. § 3B1.3. We
hold that the Sentencing Guidelines commentary prohibiting
simultaneous application of the Broker-Dealer and Special
Skill enhancements does not apply when the Broker-Dealer
enhancement pertains specifically to a principal’s offense and
the Special Skill enhancement pertains to a defendant-
accessory’s offense.

We then address Tamman’s additional bases for appeal:
his arguments that (1) his waiver of his right to a jury trial
was not knowing, voluntary, and intelligent; (2) the district
court erred in excluding two proffered experts; (3) the district
court erred in admitting the statement of an alleged
coconspirator; and (4) the district court erred in calculating
loss and victim amounts, as required under the Sentencing
Guidelines. We affirm the district court’s conviction and
sentence.

I. Factual and Procedural History

In 2003, Tamman, an attorney licensed in California,
began performing work for NewPoint Financial Services,
Inc., a company owned by John Farahi. To raise money
 UNITED STATES V. TAMMAN 5

through NewPoint, Farahi made private offerings of
debentures. NewPoint did not register the debentures with
the SEC, and while it took steps to make it appear that it was
complying with federal securities law pertaining to
unregistered securities—including hiring Tamman to prepare
private placement memoranda (PPMs) for the debentures—it
in fact regularly failed to disclose material information to
investors, in violation of the securities laws.

In 2003, Tamman prepared a PPM that failed to disclose
all material risks and facts pertaining to the investment. In
2004, when the National Association of Securities Dealers,
now known as the Financial Industry Regulatory Authority
(FINRA), began an examination of NewPoint that required
disclosure of the 2003 PPM, Tamman made substantial
changes to the 2003 PPM and provided the new, backdated
version to FINRA without disclosing that any changes had
been made.

From 2005 to 2009, Farahi raised over $30 million from
investors through debentures. Although he represented to the
investors that these debentures were low-risk investments,
Farahi used the funds for various undisclosed purposes,
including payment of his own personal expenses, principal
repayments to previous investors, and higher-risk futures
options trading. In 2008, his loss of approximately $26
million from option trading significantly hampered his ability
to repay NewPoint investors and creditors. Nevertheless, he
continued to assure investors that their funds were safe and
began to raise additional money to pay back prior investors,
sustain his personal expenses, and engage in options trading.

In 2009, the SEC visited NewPoint’s offices while
investigating a tip that Farahi was running a Ponzi scheme.
6 UNITED STATES V. TAMMAN

After meeting with Farahi, Tamman created more backdated
versions of PPMs with added disclosures. Throughout the
SEC investigation, Tamman continued to edit backdated
PPMs and promissory notes.

In 2012, Tamman was indicted and charged with one
count of conspiracy to obstruct justice, one count of accessory
after the fact to mail fraud and securities law violations, five
counts of altering documents to influence a federal
investigation, and three counts of aiding and abetting Farahi’s
false testimony at an SEC deposition. On October 5, 2012,
Tamman waived his right to a jury trial and opted for a bench
trial. During in limine hearings on October 1, 2012, and
October 15, 2012, the district court excluded Tamman’s
experts, Mason Dinehart and Stanley Lamport. The district
court offered Tamman the chance to revise Dinehart’s report
and requested that the substance of Lamport’s report be
included in a trial brief. His case proceeded to trial on
October 31, 2012.

In November 2012, the district court found Tamman
guilty, and in September 2013, sentenced him to 84 months
of imprisonment, well below the calculated Sentencing
Guidelines sentencing range of 151 to 188 months.

II. Discussion

On appeal, Tamman argues that his conviction was the
result of an unconstitutional jury waiver and expert testimony
exclusion, as well as inadmissible hearsay. He also argues
that three errors at sentencing—simultaneous application of
the Broker-Dealer and Special Skill enhancements, and
 UNITED STATES V. TAMMAN 7

calculation of loss and number of victims—necessitate
remand. We disagree.1

A. Alleged Sentencing Errors

The district court sentenced Tamman as an accessory after
the fact to Farahi’s crimes of mail fraud and unregulated offer
and sale of securities, pursuant to U.S.S.G. § 2X3.1. That
Sentencing Guideline provides that the applicable base
offense level for a defendant-accessory is the total offense
level of the principal’s crime, including any applicable
special offense characteristics that were known or reasonably
should have been known by the defendant-accessory, less six
levels. U.S.S.G. § 2X3.1 cmt. n.1. Once the district court
determines the base offense level, the district court must also
apply any specific offense characteristics applicable to the
defendant-accessory’s conduct.

In Tamman’s case, the base offense level was therefore
the total offense level for Farahi’s mail fraud and securities
crimes, which is prescribed by U.S.S.G. § 2B1.1, less six
levels. Farahi’s mail fraud and securities crimes included the
following special offense characteristics: a 22-level
enhancement for loss under § 2B1.1(b)(1)(L); a four-level
enhancement under § 2B1.1(b)(2)(B) because the crime
involved 50 or more victims; and a four-level enhancement
for Farahi’s role as an investment adviser during the
commission of a securities law violation under
§ 2B1.1(b)(18)(A). The district court found that the total
offense level for Farahi’s mail and securities crimes,
including applicable special offense characteristics, was 37.
Pursuant to U.S.S.G. § 2X3.1(a), the district court reduced the

1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
8 UNITED STATES V. TAMMAN

total offense level by 6 to ascertain Tamman’s base offense
level for his accessory after the fact crime. However, because
§ 2X3.1 caps the maximum base offense level at 30, the
district court determined that Tamman’s base offense level
was 30.

Upon calculating the total offense level for Farahi’s crime
and subtracting the requisite levels, the district court then
added special offense characteristics specific to Tamman: a
two-level enhancement for Tamman’s use of his lawyering
skills to commit the crime under § 3B1.3 and a two-level
enhancement for Tamman’s role in impeding the SEC
investigation under § 3C1.1. After applying the Special Skill
and Obstruction of Justice enhancements, the district court
calculated Tamman’s total offense level as 34.

Tamman challenges the dual application of the Broker-
Dealer and Special Skill enhancements, as well as the district
court’s factual findings as to the total loss amount and total
number of victims. We review the district court’s
interpretation of the Sentencing Guidelines de novo and its
findings of fact at sentencing for clear error. United States v.
Gadson, 763 F.3d 1189, 1219 (9th Cir. 2014).

1. Application of Broker-Dealer and Special
Skills Enhancements

Tamman contends that the dual application of the Broker-
Dealer enhancement and the Special Skills enhancement was
improper and barred by the Sentencing Guidelines. In
support, Tamman cites the Sentencing Guideline Application
Note to § 2B1.1(b)(18)(A), which states, “[i]f subsection
(b)(18) applies, do not apply § 3B1.3.” U.S.S.G. § 2B1.1
cmt. n.14(C) (2012) (2014 version at cmt. n.15(C)).
 UNITED STATES V. TAMMAN 9

As this court has long acknowledged, the Sentencing
Guidelines recognize the problems inherent in double
counting and, in an effort to avoid increasing a defendant’s
sentence for a harm that has already been fully taken into
account, expressly prohibit the dual application of Sentencing
Guidelines that account for the same harm. United States v.
Smith, 719 F.3d 1120, 1124 (9th Cir. 2013) (citing United
States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010); United
States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007)).
“However, ‘when each invocation of the behavior serves a
unique purpose under the Guidelines,’ we conclude that the
Commission ‘authorized and intended’ the cumulative
application of both provisions.” Id. (quoting Holt, 510 F.3d
at 1011).

In 2003, the Sentencing Commission amended the
Broker-Dealer enhancement to cover registered brokers and
dealers, associated persons of a broker or dealer, investment
advisers, and associated persons of an investment adviser.
U.S.S.G. app. C, vol. II, at 367 (amend. 653) (2014). The
rationale accompanying the amendment explains:

The Commission concluded that a four level
enhancement appropriately reflects the
culpability of offenders who occupy such
positions and who are subject to heightened
fiduciary duties imposed by securities law or
commodities law similar to duties imposed on
officers and directors of publicly traded
corporations. Accordingly, the court is not
required to determine specifically whether the
defendant abused a position of trust in order
for the enhancement to apply, and a
corresponding application note provides that,
10 UNITED STATES V. TAMMAN

in cases in which the new, four level
enhancement applies, the existing two level
enhancement for abuse of position of trust at
§3B1.3 (Abuse of Position of Trust or Use of
Special Skill) shall not apply.

Id.

As the Commentary makes clear, the prohibition on the
dual application of the Broker-Dealer and Special Skill
enhancements reflects the Commission’s view that the
Broker-Dealer enhancement already accounts for the Broker-
Dealer’s role and that application of both enhancements
would amount to double counting. However, we hold that
this rationale does not apply in cases like the one at hand,
where the Broker-Dealer enhancement reflects the behavior
of the principal and the Special Skill enhancement reflects
separate and distinct behavior of the defendant-accessory. In
that situation, application of both special offense
characteristics is not double counting; it reflects different
conduct committed by two different parties. We therefore
affirm the district court’s application of both enhancements
in this case.

2. Calculation of Loss Amount

Next, Tamman argues that the district court erred in
calculating a loss figure greater than $20 million under
U.S.S.G. § 2B1.1(b)(1) because he was only aware of $11
million in loss. According to Tamman, the extent of the loss
was not an essential element of Farahi’s crime and he
therefore cannot be charged with knowledge of that loss
amount by his mere status as accessory to that crime.
 UNITED STATES V. TAMMAN 11

U.S.S.G. § 2B1.1(b)(1) requires a sentencing court to
increase the base offense level in accordance with the amount
of actual or intended loss that the crime inflicted. Actual loss
includes the amount of pecuniary harm that the “defendant
knew or, under the circumstances, reasonably should have
known, was a potential result of the offense.” U.S.S.G.
§ 2B1.1 cmt. n.3(A)(I), (iv). Under U.S.S.G. § 2X3.1, the
amount of loss is limited to the amount of which the
defendant-accessory knew or should have reasonably known.
Id. § 2X3.1 cmt. n.1.

Although Tamman is correct that the extent of loss was
not an essential element of Farahi’s crime, the district court
did not end its loss examination there. First, the district court
examined the PPMs that Tamman backdated. It credited the
amounts disclosed therein because Tamman had altered the
disclosures so that it would appear that the disclosures
originally made to investors matched the current financial
situation of NewPoint. Given that the purpose of revising the
PPMs was to reflect NewPoint’s actual financial condition,
the district court did not clearly err by relying on the amounts
disclosed in the revised PPMs. Second, the district court
properly credited the testimony of Elaheh Amouei, Farahi’s
bookkeeper, which indicated that Tamman had substantial
knowledge of Farahi’s activities. Based on this combination
of evidence, the district court correctly held that the full
measure of Farahi’s loss would have been foreseeable to
Tamman.

3. Calculation of Number of Victims

Finally, Tamman argues that the district court erred in
finding that the crime involved more than 50 victims under
§ 2B1.1(b)(2) because Tamman was only aware of at most 43
12 UNITED STATES V. TAMMAN

investors. According to Tamman, the evidence only
demonstrates that he knew of 30 investors from the 2008
offering and 13 investors from previous offerings.

U.S.S.G. § 2B1.1(b)(2) requires the district court to
increase the base offense level in accordance with the number
of victims that the offense involved. Once again, because of
§ 2X3.1’s knowledge requirement, the court can only count
the number of victims about whom the defendant-accessory
knew or reasonably should have known. U.S.S.G. § 2X3.1
cmt. n.1.

Although Tamman is correct that the evidence only
proves that Tamman had actual knowledge of 43 victims, the
district court did not err in finding that Tamman could have
reasonably foreseen the additional 41 victims of Farahi’s
crime. The district court considered that Tamman, as an
accessory after the fact to Farahi, had knowledge of Farahi’s
mail fraud and Ponzi scheme. The mere fact that his actual
knowledge may have been limited to 43 victims does not
preclude a finding that all of the victims were reasonably
foreseeable to him. Accordingly, the district court did not
clearly err in calculating the number of victims under
§ 2B1.1(b)(2).

B. Jury Waiver

Tamman’s second claim on appeal is that the district court
failed to make an adequate inquiry or provide sufficient
information to Tamman to ensure his jury waiver was
knowing, voluntary, and intelligent. Tamman contends that,
upon learning that Tamman took medications and that
Tamman was unsure as to whether he was “under the
influence,” the district court had the duty to conduct an in-
 UNITED STATES V. TAMMAN 13

depth colloquy to assess Tamman’s competence.
Additionally, Tamman argues that because the district court
gave him less time than he originally requested to decide
whether to waive a jury, his stress and anxiety may have
exacerbated the impact of his conditions and medications.
Finally, Tamman argues that the district court failed to
sufficiently inform him of the rights he would relinquish
pursuant to a jury waiver, as required under United States v.
Cochran, 770 F.2d 850, 853 (9th Cir. 1985). “We review the
adequacy of a jury-trial waiver de novo.” United States v.
Shorty, 741 F.3d 961, 965 (9th Cir. 2013).

1. Adequacy of the Inquiry

A criminal defendant may waive his right to trial by jury
if there is (1) a written waiver that is knowing and intelligent,
(2) governmental consent, and (3) court approval. Fed. R.
Crim. P. 23(a); United States v. Duarte-Higareda, 113 F.3d
1000, 1002 (9th Cir. 1997). Although written waivers are
presumptively knowing and intelligent, a district court must
nevertheless conduct an in-depth colloquy if “the defendant’s
mental or emotional state is a substantial issue.” United
States v. Christensen, 18 F.3d 822, 825 (9th Cir. 1994). In
other words, “[t]he suspected presence of mental or emotional
instability eliminates any presumption that a written waiver
is voluntary, knowing or intelligent.” Id. at 826.

Here, when Tamman stated that he was unsure whether he
was under the influence of his medications, the district court
carefully inquired whether those medications affected his
understanding of the proceedings and the nature of the right
that he was waiving. Tamman responded that they did not.
Moreover, Tamman’s behavior and responses to questions
throughout the proceeding indicated that he was competent to
14 UNITED STATES V. TAMMAN

waive his right to jury trial, and Tamman’s attorney
represented to the district court that Tamman was competent
to make the waiver. Tamman presents no evidence that the
expedited time frame for the jury waiver would have had any
effect on his competence.

The only evidence upon which the district court could
rely were the responses Tamman provided to its questions, his
behavior throughout the hearing, and the representations
made by his attorney. That evidence indicated that Tamman
was competent to waive his jury trial, and this court affirms
the district court’s finding.

2. Sufficiency of the Colloquy

Before a defendant waives his right to a jury, the district
court must ensure that he knows what the right guarantees.
Cochran, 770 F.2d at 853. Accordingly, district courts are
strongly encouraged, although not required, to inform
defendants that “twelve members of the community compose
a jury,” that “the defendant may take part in jury selection,”
that “jury verdicts must be unanimous,” and that “the court
alone decides guilt or innocence if the defendant waives a
jury trial.” Id. However, the sufficiency of the colloquy is
highly dependent on the education and legal sophistication of
the defendant, and shorter colloquies can be sufficient to
ascertain whether the waiver is knowing and voluntary. See
Shorty, 741 F.3d at 968 (noting that an abbreviated colloquy
might have been sufficient had the defendant been
“intellectually sophisticated and highly educated”).

Here, as a practicing attorney and partner at a major law
firm, Tamman was well aware of the rights that a jury trial
would entail. The district court reasonably concluded that
 UNITED STATES V. TAMMAN 15

Tamman’s competence, background, and experience ensured
that he understood the mechanics of a jury trial and the rights
he was waiving, even without an in-depth colloquy or a
recitation of the four facts mentioned in Cochran.
Accordingly, this court affirms the district court’s finding of
knowing and intelligent waiver.

C. Evidentiary Errors

Finally, Tamman challenges the district court’s exclusion
of expert testimony from Mason Dinehart and Stanley
Lamport, as well as the admission of a statement from
Amouei. Because Tamman did not preserve these evidentiary
objections, the court reviews for plain error.2

2
When excluding Dinehart’s opinions, the district court specifically
indicated that it only excluded Dinehart’s testimony as written and gave
Tamman the opportunity to revise and resubmit the opinions, making it
clear that the ruling was provisional. To preserve the error for appeal,
Tamman would have needed to make an offer of proof to the district court,
outlining the testimony that was excluded. Because Tamman did not do
so, he failed to preserve the error on the exclusion of Dinehart’s testimony
and the court reviews for plain error. See United States v. Archdale,
229 F.3d 861, 864 (9th Cir. 2000) (“[The] contention that the mere filing
of a motion in limine preserves for appeal the issue of the admissibility of
the evidence to which the motion is directed is without merit.”).

Similarly, the district court was clear when it excluded Lamport’s
expert report that Tamman was to revisit the admissibility of Lamport’s
testimony in both his trial brief and during the course of trial. Because the
district court’s in limine ruling excluding Lamport was not definitive and
because Tamman failed to revisit the issue or present a subsequent offer
of proof, the court reviews the district court’s decision for plain error.
United States v. Bishop, 291 F.3d 1100, 1108 (9th Cir. 2002) (“In the
absence of an offer of proof . . . reversal will lie only where there is plain
error.” (internal quotation marks omitted)).
16 UNITED STATES V. TAMMAN

1. Expert Opinions

In general, an expert may only testify as to “scientific,
technical, or other specialized knowledge [that] will assist the
trier of fact to understand the evidence or determine a fact in
issue”; an expert cannot testify to a matter of law amounting
to a legal conclusion. Fed. R. Evid. 702(a); Aguilar v. Int’l
Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th
Cir. 1992).

The district court concluded that Dinehart’s opinion
provided only a recitation of facts and the legal conclusion
that Tamman acted in conformity with unidentified SEC rules
and regulations and otherwise did not break the law. This is
not a proper expert opinion. Moreover, as the district court
noted, Dinehart, who is not a lawyer, does not appear to be
qualified to offer the opinions that he presented.
Accordingly, the district court did not plainly err in excluding
Dinehart’s testimony.

The district court excluded Lamport’s opinion regarding
Tamman’s professional and ethical duties as an attorney in

Finally, Tamman did not object to Amouei’s payment testimony at the
time it was elicited. He argues that his objection to earlier testimony by
Amouei, on the grounds that she was not a coconspirator, was sufficient
to preserve an objection to her later payment testimony. However, the
payment testimony is completely distinct from the earlier testimony, and
the district court did not make a blanket ruling that any hearsay statement
from Amouei automatically qualified as being in the course of and in
furtherance of the conspiracy. Accordingly, Tamman did not preserve the
error for appeal, and the court reviews the district court’s decision for
plain error. See United States v. Bridgeforth, 441 F.3d 864, 869 (9th Cir.
2006) (noting that if a party does not “object at trial to the district court’s
decision to admit a co-conspirator’s statements, [the court] review[s] their
admission for plain error”).
 UNITED STATES V. TAMMAN 17

part because the trial had shifted from a jury trial to a bench
trial and the district court did not believe live testimony was
necessary on the issues presented in Lamport’s report.
Instead, the district court concluded that the applicable ethical
standards could be presented in a trial brief. Because a
district judge has the discretion as to the necessity of expert
testimony, the district judge’s determination that he was
capable of understanding Lamport’s testimony through a
written proffer in a trial brief was not plain error. See Hooper
v. Lockheed Martin Corp., 688 F.3d 1037, 1053 (9th Cir.
2012) (“[E]ven if expert testimony may assist the trier of fact,
the trial court has broad discretion to admit or exclude it.”
(alteration and internal quotation marks omitted) (quoting
Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th
Cir. 1995) (per curiam)).

2. Amouei’s Statement

Under Federal Rule of Evidence 801(d)(2)(E), a statement
of one coconspirator is admissible nonhearsay against other
coconspirators as an admission of a party-opponent, if the
statement was made during the course of and in furtherance
of the common objectives of the conspiracy. “Although mere
conversations or narrative declarations between
coconspirators are not in themselves sufficient to invoke the
exception to the hearsay rule, statements made to keep
coconspirators abreast of an ongoing conspiracy’s activities
satisfy the ‘in furtherance of’ requirement.” United States v.
Williams, 989 F.2d 1061, 1068 (9th Cir. 1993).

In the statement at issue, Amouei testified that Farahi told
her that he had previously settled one of Tamman’s legal bills
by paying Tamman in cash. Farahi’s statement informed
Amouei of the state of the conspiracy and the bookkeeping
18 UNITED STATES V. TAMMAN

necessarily associated with the conspiracy, and it took place
while the conspiracy was ongoing. Moreover, the statement
helped further the conspiracy by informing Amouei about the
transfer of money within the conspiracy, which ensured that
the bookkeeping of the conspiracy was accurate. The
testimony is therefore coconspirator nonhearsay and the
district court did not plainly err in admitting the statement.

III. Conclusion

In conclusion, we affirm the district court’s dual
application of the Broker-Dealer and Special Skill
enhancements under the facts of this case, since the former
reflected the principal’s conduct and the latter reflected the
defendant-accessory’s conduct. Additionally, we hold that
the district court did not err in calculating the loss or victim
figures at sentencing. Finally, we affirm the district court’s
finding of jury waiver and its evidentiary rulings.

AFFIRMED.