United States v. Irvin

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
August 31, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. Nos. 10-3106 and 10-3107

HALLIE IRVIN and F. JEFFREY MILLER,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. Nos. 5:06-CR-40151-JAR-3 & 1)

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public
Defender, and O. Dean Sanderford, Assistant Federal Public Defender, with him on the
briefs), Denver, Colorado, for Defendant-Appellant, Irvin.

Jeffrey D. Morris of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, Kansas City,
Missouri, for Defendant-Appellant, Miller.

Richard L. Hathaway, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, and Christine E. Kenney, Assistant United States Attorney, with him on the
briefs), District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.

Before MURPHY, EBEL, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.
I. Introduction

Appellants F. Jeffrey Miller and Hallie Irvin were charged in an eleven-count

indictment with a variety of crimes stemming from an alleged conspiracy to defraud

mortgage lenders in connection with the subprime housing market. After a month-long

jury trial, Miller and Irvin were each convicted on several of the charges and sentenced.

They now appeal their convictions, citing numerous evidentiary and legal errors. Miller

also challenges his sentence. Exercising jurisdiction under 28 U.S.C. § 1291, we now

REVERSE their convictions in part, AFFIRM their convictions in part, and REMAND

for further proceedings.

II. Background

Miller was a builder and developer involved in residential construction in Kansas,

Missouri, and other states.1 There being many competing developers marketing their

homes to well-qualified buyers, Miller chose to focus his business on the relatively

untapped subprime market, i.e., buyers with low income and poor credit. The marketing

of Miller’s homes was handled by Stephen Vanatta, who would refer potential buyers to a

mortgage broker named James Sparks for financing. Upon the successful closing of a

home sale, Miller was paid out of the mortgage loan proceeds while Sparks received a

1
We summarize the facts in the light most favorable to the government, drawing
all inferences consistent with the jury’s verdict. United States v. Winder, 557 F.3d 1129,
1132 (10th Cir. 2009).

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commission from the mortgage lender, which he shared with Vanatta. Because a prior

felony conviction for passing a bad check prohibited Vanatta from maintaining a

checking account, his portion of commissions were paid by checks issued to his wife,

appellant Irvin.

Despite the eagerness of lenders to extend mortgage loans, Sparks often had

trouble securing financing for Vanatta’s subprime applicants. In order to ensure that

otherwise unqualified buyers could obtain financing, Sparks and Vanatta enhanced such

buyers’ apparent creditworthiness by, among other things, overstating the buyers’

income, altering bank statements to add deposits, and drafting false letters of

employment. The mortgage lenders were further induced to extend financing through

Miller’s use of inflated home appraisals, overvaluing the relevant properties and thereby

enhancing the lenders’ perceived loan-to-collateral ratio.2 Reflecting these inflated home

valuations, however, occasionally required Sparks to surreptitiously increase the sales

price on previously signed sales contracts. To convince the surprised buyers to proceed

with their purchase after discovering the price change, Miller would himself offer to

extend a second mortgage, referred to as a seller carryback, covering the difference

between the first mortgage and the adjusted purchase price. Finally, to bring the effective

2
For example, if a buyer was interested in purchasing a house priced at $100,000
but unable to secure a loan of that size, a new appraisal would be arranged that increased
the appraised value to $120,000. The buyer would then apply for the same $100,000
loan, which the lender would believe was secured by $120,000 collateral and therefore
much less risky.

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purchase price back in line with the originally agreed-upon amount, Miller would agree

to discount the amount owed on the seller carryback if the buyer successfully refinanced

the first and second mortgages.3

The government became aware of these fraudulent activities due to a report made

by the accounting firm, Meara King & Company (“Meara King”). Meara King was

monitoring Miller’s business activities in accordance with a certain agreement entered

into by Miller as a condition of his release in connection with another criminal

prosecution (the “Monitoring Condition”).4 While reviewing a home sale referred to

herein as the “Jordan Transaction,” Meara King noted a sizable discrepancy between the

reported value of the property and the value assigned to it by Meara King’s appraiser. It

reported this discrepancy to the United States Attorney’s Office, which began an

investigation. The investigation ultimately led to Miller, Vanatta, Sparks, Irvin, and

Miller’s former employee Sandra Harris, being charged with a variety of criminal

offenses including bank fraud, conspiracy to commit bank fraud, money laundering, and

criminal contempt for knowingly violating the order setting Miller’s conditions of release

in Miller I.

3
In the above example, the seller carryback mortgage would be $20,000,
reflecting the difference between the $100,000 first mortgage and the $120,000 inflated
sales price.
4
The other prosecution, United States v. Miller, No. 06-40068-01 (D. Kan. Feb.
12, 2010) (hereinafter “Miller I”), went to trial and ultimately resulted in Miller’s
acquittal on all counts.

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 Sparks pled guilty to one count of conspiracy pursuant to an agreement whereby

he agreed to testify against his co-defendants as a cooperating witness. The remaining

defendants were tried on the following charges: conspiracy (Count 1); two counts of bank

fraud (Counts 2 & 3); two counts of money laundering, each count tied to one of the

substantive bank fraud charges (Counts 4 & 5); destroying records in a federal

investigation (Count 6); corruptly influencing a witness (Count 8); and four counts of

criminal contempt, for either violating the Monitoring Condition set in Miller I, or for

aiding and abetting in those violations (Counts 9–12).5 Following a lengthy trial, the jury

acquitted Harris of all charges. Miller, Vanatta, and Irvin were each found guilty of

Counts 1, 5, 9, and 10. Vanatta and Irvin were additionally found guilty of Counts 2 and

4.

Prior to sentencing, Miller, Vanatta and Irvin moved for entry of judgments of

acquittal, alleging insufficient evidence to sustain a conviction. Alternately, the

defendants requested a new trial based upon certain alleged errors committed by the trial

court. These motions were denied by the district court. Miller and Irvin now challenge

their convictions on essentially the same grounds presented below. Miller also

challenges his sentence.

III. Discussion

A. Challenges to Admitted Evidence

5
Count 7 charged the defendants with harassing Sparks in an effort to dissuade
him from testifying, but was dismissed before trial.

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 1. Admission of Exhibit 1-2

The testimony of cooperating defendant Sparks formed much of the government’s

case against Miller and Irvin. Over the course of four days, Sparks described the various

forgeries, misrepresentations, and other fraudulent activities he allegedly engaged in with

Vanatta to obtain financing for unqualified buyers. In all, Sparks related the particulars

of twenty-two separate transactions involving Miller-built homes. During this testimony,

continual reference was made to government Exhibit 1-2, a chart displayed before the

jury that purported to summarize the relevant details of these transactions. This chart was

entitled “Summary of Fraud for JEFF MILLER et al., Fraud That Can Be Identified By

James Sparks.” It included information identifying the date, location, and buyer for each

transaction, as well as a column labeled “False Statements to Lenders,” which listed the

various specific fraudulent representations and actions described by Sparks.

Exhibit 1-2 was initially offered by the government under Fed. R. Evid. 1006 as a

summary of several boxes of “loan files” pertaining to the allegedly fraudulent home

sales. The defendants vigorously resisted the admission of the summary chart, filing a

motion in limine and repeatedly objecting during trial. The district court ultimately

agreed with the government and admitted Exhibit 1-2 under Rule 1006. Arguing the

requirements of Rule 1006 were not satisfied and the loan files upon which Exhibit 1-2

was based constituted inadmissible hearsay, Miller and Irvin contend the district court’s

decision is reversible error. We review a district court’s decision to admit summary

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charts under Rule 1006 for abuse of discretion. United States v. Thompson, 518 F.3d

832, 858 (10th Cir. 2008).

Rule 1006 provides, in relevant part: “The contents of voluminous writings,

recordings, or photographs which cannot conveniently be examined in court may be

presented in the form of a chart, summary, or calculation. The originals, or duplicates,

shall be made available for examination or copying, or both, by other parties at

reasonable time and place.” Fed. R. Evid. 1006. Although the materials upon which a

Rule 1006 summary is based need not themselves be admitted into evidence, they must at

least be admissible. United States v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999).

Miller and Irvin argue the loan files purportedly summarized in Exhibit 1-2

constituted hearsay that was not shown to qualify for any exception to the prohibition on

hearsay evidence. When this same challenge was raised before the district court, the

government attempted to show the loan files were admissible under the business records

exception established by Fed. R. Evid. 803(6). Pursuant to Rule 803(6), business records

are admissible despite their hearsay nature if the records’ custodian, or another qualified

witness, testifies the records (1) were prepared in the normal course of business; (2) were

made at or near the time of the events recorded; (3) were based on the personal

knowledge of the entrant or of a person who had a business duty to transmit the

information to the entrant; and (4) are not otherwise untrustworthy. United States v. Ary,

518 F.3d 775, 786 (10th Cir. 2008). The government offered Sparks as the witness

qualified to make these foundational showings. Sparks, however, testified the loan files

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were largely maintained by various title companies for whom he had not worked and

under circumstances of which he had no personal knowledge. Furthermore, Sparks could

not state whether the loan files were made or kept by the title companies in the regular

course of their businesses. He also indicated that various documents within the loan files

had been removed, destroyed, or otherwise modified. His testimony, therefore, was

insufficient to establish the admissibility of the loan files as business records.

Before ruling on the admissibility of Exhibit 1-2, the district court acknowledged

the documents summarized by a Rule 1006 chart must themselves be admissible.

Nevertheless, it reasoned that, while Sparks’s testimony had not established admissibility

of the loan files under Rule 803(6), neither had the defendants demonstrated the loan files

would not satisfy the business records exception if the government presented testimony

from the appropriate records custodians. Because it had “heard nothing that contradicts

the idea that [the loan files] are business records and would meet the business records

exception,” the district court overruled the hearsay objection and received Exhibit 1-2. It

reaffirmed this ruling several times throughout the trial. The district court abused its

discretion by admitting Exhibit 1-2.

The materials summarized by Rule 1006 evidence must themselves be admissible

because a contrary rule “would inappropriately provide litigants with a means of avoiding

rules governing the admission of evidence such as hearsay.” Samaniego, 187 F.3d at

1224. Accordingly, just as the proponent of hearsay evidence bears the burden of

establishing the applicability of a hearsay exception, Ary, 518 F.3d at 786, so too must

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the proponent of a Rule 1006 summary based on hearsay evidence establish that the

materials summarized are admissible. Samaniego, 187 F.3d at 1224. Contrary to the

district court’s ruling, Miller and Irvin were under no obligation to affirmatively disprove

the applicability of the business records exception. The burden was on the government

alone. By not requiring the government to lay the foundation necessary under Rule

803(6), the district court erred as a matter of law. Id.

The government seeks to avoid this conclusion by explaining that, contrary to its

representations before the district court, Exhibit 1-2 summarized not only the

aforementioned loan files, but also the trial testimony of Sparks and other government

witnesses.6 Therefore, the government reasons, Exhibit 1-2 constituted a “hybrid”

summary chart, admissible under Fed. R. Evid. 611(a). The government’s logic eludes

the court, for the loan files remain inadmissible hearsay.

Rule 611(a) provides that “[t]he court shall exercise reasonable control over the

mode and order of interrogating witnesses and presenting evidence so as to (1) make the

interrogation and presentation effective for the ascertainment of the truth, (2) avoid

needless consumption of time, and (3) protect witnesses from harassment or undue

embarrassment.” Fed. R. Evid. 611(a). This directive has in some circuits been read as

6
Rule 1006 permits the use of exhibits summarizing only “[t]he contents of
voluminous writings, recordings, or photographs which cannot conveniently be examined
in court.” Fed. R. Evid. 1006. To the extent the government’s revisionist assertions
indicate Exhibit 1-2 summarized witness testimony, therefore, they further emphasize
that the chart’s admission under Rule 1006 was in error.

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authorizing the use of summary exhibits for pedagogical purposes, wholly apart from

Rule 1006. See, e.g., United States v. Milkiewicz, 470 F.3d 390, 397 (1st Cir. 2006);

United States v. Bray, 139 F.3d 1104, 1111-12 (6th Cir. 1998); United States v. Johnson,

54 F.3d 1150, 1157-59 (4th Cir. 1995). Nothing in Rule 611(a) or the cases interpreting

it, however, indicates that such pedagogical exhibits can be used to summarize otherwise

inadmissible hearsay evidence, such as the loan files. Indeed, the cases discussing Rule

611(a) summaries typically require the summarized evidence to be affirmatively admitted

into evidence. See Milkiewicz, 470 F.3d at 397 (“A summary chart used as a pedagogical

device must be linked to evidence previously admitted . . . .”); Bray, 139 F.3d at 1111

(same). Such a requirement is consistent with the spirit of Rule 611(a), which, in

discussing the presentation of evidence, presupposes the suitability of such evidence for

presentation, as well as our existing Rule 611(a) jurisprudence. See United States v.

Stiger, 413 F.3d 1185, 1198 (10th Cir. 2005) (“[A] party may only admit summary

testimony under Fed. R. Evid. 611(a) if the District Court previously admitted at trial the

evidence that forms the basis of the summary.”). In short, resort to Rule 611(a) in no way

resolves the hearsay problem that renders Exhibit 1-2 inadmissible.

This analysis, however, does not conclude the inquiry, because “this court applies

a harmless error standard when reviewing trial courts’ rulings on hearsay objections

resting solely on the Federal Rules of Evidence.” United States v. Collins, 575 F.3d

1069, 1073 (10th Cir. 2009) (quotation and alteration omitted). “A harmless error is one

that does not have a substantial influence on the outcome of the trial; nor does it leave

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one in grave doubt as to whether it had such effect.” Id. (quotation omitted). In

evaluating whether the district court’s erroneous admission of Exhibit 1-2 was harmless,

“we review the record de novo to determine whether the evidence . . . had a substantial

influence on the jury’s verdict in the context of the entire case against [the defendants].”

United States v. Wilson, 107 F.3d 774, 785-86 (10th Cir. 1997) (quotation omitted).

The government bears the burden of proving the error was harmless. United

States v. Velarde, 214 F.3d 1204, 1211 (10th Cir. 2000). It has not adequately carried

this burden. Exhibit 1-2 was displayed before the jury throughout Sparks’s direct

testimony, listing the government’s allegations using suggestive terminology (e.g.,

referring to commission payments as “kickbacks”) and organizing them into a simple and

comprehensible chart beneath condemnatory section headings (e.g., “Summary of Fraud

for JEFF MILLER et al.” and “False Statements to Lenders”). The district court itself

later acknowledged the prejudicial influence of the exhibit’s rhetorical aspects and

ordered several redactions to the chart’s accusatory terminology before sending it into

jury deliberations. Although these revisions were appropriate, they came too late. More

importantly, they did not address the core prejudicial impact of this inadmissible exhibit,

i.e., the compelling simplicity with which Exhibit 1-2 reduced weeks of complex

testimony and inadmissible hearsay into an easily digested summary.

The government itself confirmed this was the primary benefit of the summary

chart. In advocating the propriety of Exhibit 1-2 before the district court, the government

highlighted its significance: “The more that this document is challenged the more it

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emphasizes the importance, and particularly in a fraud case where we have a cooperating

individual, of having a document that in one comprehensive format identifies the various

kinds of frauds and the patterns.” Focusing on the usefulness of Exhibit 1-2 in jury

deliberations, the government further explained: “[I]t’s more significant than ever that the

jury have this back in the jury room . . . as something that will be a roadmap . . . .” The

government’s advocacy for Exhibit 1-2 in the district court belies its assertions of

harmlessness on appeal. See United States v. DeLoach, 504 F.2d 185, 192 (D.C. Cir.

1974) (noting that a prosecutor’s “own estimation of his case, and of its reception by the

jury at the time, is, if not the only, at least a highly relevant measure now of the

likelihood of prejudice”).

In contrast to the litany of direct evidence indicating Vanatta’s and Sparks’s illegal

activities in furtherance of the conspiracy charged in Count 1, Miller’s and Irvin’s

connections with the conspiracy were primarily supported by circumstantial evidence,

such as Miller’s admitted desire to sell his houses at the highest possible price and Irvin’s

preparation of invoices for “construction management fees” that secretly represented

Vanatta’s real estate marketing commissions. Although the evidence is sufficient to

sustain the jury’s verdict on Count 1 as a purely legal matter,7 we are left in grave doubt

that the verdict would have been the same had the objection to Exhibit 1-2 been

sustained. Miller’s and Irvin’s convictions on Count 1 are therefore reversed.

7
Neither Miller nor Irvin now contest the sufficiency of the evidence supporting
their convictions on Count 1.

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 Nevertheless, the admission of Exhibit 1-2 was harmless error in relation to

Counts 2, 4, 5, 9 and 10, which are discussed in greater detail below. Those counts—

each of which alleged a discrete instance of criminal activity—did not present the factual

complexity characteristic of the conspiracy in Count 1, and were therefore less

susceptible to the summarization of the evidence in Exhibit 1-2. The bank fraud and

money laundering charged in Counts 2 and 4, moreover, were not reflected on Exhibit 1-

2 at all, and the government’s case on those counts was supported by a wholly separate

body of evidence. Counts 5, 9, and 10, by contrast, centered on criminal conduct

committed in connection with the so-called Jordan Transaction, which was summarized

on Exhibit 1-2. Each allegation concerning the Jordan Transaction contained in Exhibit

1-2, however, was independently supported by properly admitted evidence and witness

testimony. Furthermore, while the majority of the transactions summarized on Exhibit 1-

2 received only passing mention during the trial, the Jordan Transaction upon which

Count 5 was premised was discussed repeatedly and at great length during trial. Any

influence that Exhibit 1-2 might have had upon the jury’s verdict on Counts 5, 9, and 10

was, therefore, minimal.

2. Admission of Exhibit 2009

Exhibit 2009 is an appraisal prepared by Pinnacle Appraisal Group LLC at the

request of Meara King, the accounting firm monitoring Miller. The appraisal concerned

the property sold by Miller in connection with the Jordan Transaction. It concluded the

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property was worth approximately $185,000, and that an earlier appraisal of $220,000

reflected an inflated valuation. Miller and Irvin objected to the admission of Exhibit

2009 on hearsay grounds, but the district court ruled the document was admissible as a

business record pursuant to Fed. R. Evid. 803(6). Miller and Irvin now contend this

ruling constituted reversible error.

Stephen Browne, a partner at Meara King, was called upon to provide the

necessary foundational showing and testified that he and his firm regularly ordered,

received, and relied upon such appraisals as a protocol in monitoring businesses,

including Miller’s. He further testified that Meara King routinely worked with Pinnacle

in obtaining appraisals and that Exhibit 2009 was prepared by Pinnacle shortly after a

request was made. Browne also explained that Meara King created a database where all

information relating to the monitoring of Miller’s businesses was stored, including any

appraisals and accounting documents accumulated through the process.

Although Browne’s testimony appears to provide all foundational showings

required by Rule 803(6), Miller and Irvin argue it was insufficient to establish the

admissibility of Exhibit 2009 as Meara King’s business record because it was created by

Pinnacle Appraisal Group and because Browne could not personally explain the basis for

the appraisal’s conclusions. They contend Exhibit 2009 could only be admitted as a

business record upon the foundational testimony of the creator of the document, i.e., the

appraiser himself. This argument directly contradicts the rule set forth by this court in

United States v. Carranco, 551 F.2d 1197 (10th Cir. 1977), which states that freight bills

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prepared by one company and incorporated into the records of another constitute the

business records of the second company so long as the elements of Rule 803(6) are

otherwise satisfied. Id. at 1199-1200; see also United States v. Adefehinti, 510 F.3d 319,

326 (D.C. Cir. 2007) (holding that adoptive records can satisfy business records

exception and listing circuits holding same). Furthermore, Carranco explicitly rejected

the “anachronistic rule” that had once required foundational testimony for a business

record be given by the preparer of such record. 551 F.2d at 1200 (citing Julander v. Ford

Motor Co., 488 F.2d 839 (10th Cir. 1973)).

Carranco remains good law today. Despite Miller’s and Irvin’s arguments to the

contrary, the adoptive business records doctrine comports perfectly with the spirit

motivating the business records exception to the hearsay rule: that satisfaction of Rule

803(6)’s requirements confers “a presumption of accuracy, accorded because the

information is part of a regularly conducted activity . . . and because of the accuracy

demanded in the conduct of the nation’s business.” United States v. Snyder, 787 F.2d

1429, 1433-34 (10th Cir. 1986). Put simply, if it can be established that a given

document was relied on by a business and incorporated into that business’s records in the

ordinary course, it is irrelevant that the record was generated by a third party so long as

Rule 803(6) is otherwise satisfied. Because the strictures of Rule 803(6) were satisfied

by Mr. Browne’s testimony, the admission of Exhibit 2009 was proper.

B. Challenges to the Sufficiency of the Evidence

1. Legal Standards

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 Following the close of the government’s evidence, and again following the close

of all evidence at trial, Miller and Irvin moved for entry of judgments of acquittal

pursuant to Fed. R. Crim. P. 29, arguing the evidence was insufficient to sustain their

convictions. After the jury returned its verdict, the district court issued a lengthy

Memorandum and Order addressing the Rule 29 motion as it pertained to the counts on

which guilt was found, ultimately denying relief. Miller and Irvin now raise largely the

same arguments on appeal.

In reviewing the sufficiency of the evidence and denial of a motion for judgment

of acquittal, this court reviews the record de novo to determine whether, viewing the

evidence in the light most favorable to the government, any rational trier of fact could

have found the defendant guilty of the crime beyond a reasonable doubt. United States v.

Wood, 207 F.3d 1222, 1228 (10th Cir. 2000). This court does not “weigh conflicting

evidence or consider witness credibility, as these duties are delegated exclusively to the

jury. Instead, we presume that the jury’s findings in evaluating the credibility of each

witness are correct.” United States v. Evans, 318 F.3d 1011, 1018 (10th Cir. 2003)

(quotation and citation omitted).

2. Count 2 – The Lake Ozark Transaction

In contrast with the majority of the charges, Count 2 alleged bank fraud by Miller,

Vanatta, and Irvin in connection with their purchase, rather than sale, of a home. The

home, located on Lake Ozark in central Missouri, was purchased with the intention that

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repairs and improvements would be made to the property, and it would then be sold for

profit (hereafter the “Lake Ozark Transaction”). Miller and Irvin obtained the funds

needed to purchase this property by cosigning on a mortgage loan issued by First

National Bank of Camdenton, Missouri, with whom Miller had previously dealt

successfully on several occasions. Because Irvin was a cosigner on the loan, First

National Bank required her to submit certain financial information. Irvin provided the

bank with what appeared to be official tax returns and a financial statement prepared by

an accounting firm, but testimony at trial indicated these materials were fraudulent. First

National Bank ultimately approved Miller’s and Irvin’s application for a $650,000 loan.

In Count 2, the government charged that this transaction constituted bank fraud in

violation of 18 U.S.C. § 1344. Although Miller was acquitted, Irvin was found guilty of

Count 2.

Bank fraud is defined as the knowing execution, or attempted execution, of “a

scheme or artifice (1) to defraud a financial institution; or (2) to obtain any of the

moneys, funds, credits, assets, securities, or other property owned by, or under the

custody or control of, a financial institution, by means of false or fraudulent pretenses,

representations, or promises.” 18 U.S.C. § 1344. The government elected to prosecute

Count 2 solely under the second prong of § 1344, which we have clarified requires a

showing that the defendant’s false or fraudulent pretenses were “material.” United States

v. Akers, 215 F.3d 1089, 1101 (10th Cir. 2000). Irvin’s sufficiency-of-the-evidence

challenge focuses on this requirement, and she contends nothing in the record supports

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the jury’s finding that her representations to First National Bank were material. Instead,

Irvin argues, the testimony of First National Bank loan officer Tom Niedergerke

established without contradiction that Irvin’s representations played no role in the bank’s

decision to issue the loan whatsoever, and therefore could not have been material.

The record is, in fact, clear that the fraudulent financial information Irvin

submitted to First National Bank had no impact on the ultimate issuance of the loan. As

Mr. Niedergerke explained, his repeated successful dealings with Miller provided the sole

basis of decision to recommend issuance of the mortgage loan to First National’s loan

committee. Consequently, Irvin’s credit information was not even included in

Niedergerke’s presentation to the loan committee, in which he explicitly stated that “[n]o

financial emphasis [had been] placed on Hallie Irvin” in forming his recommendation.

None of this, however, forecloses the jury from rationally concluding that Irvin’s

representations were material.

“In general, a false statement is material if it has a natural tendency to influence,

or is capable of influencing, the decision of the decisionmaking body to which it was

addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (quotation and alteration

omitted); see also Akers, 215 F.3d at 1102 (citing United States v. Rodriguez, 140 F.3d

163, 168 (2d Cir. 1998), for the proposition that a material misrepresentation is one

“capable of influencing a bank’s actions”). This definition, in referring to natural

tendencies and capabilities, establishes materiality in the bank fraud context as an

objective quality, unconcerned with the subjective effect that a defendant’s

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representations actually had upon the bank’s decision. Defining materiality in this way

accords with the thrust of § 1344, which criminalizes the defendant’s “scheme or

artifice,” rather than the completed fraud. Neder, 527 U.S. at 24, 25 (“By prohibiting the

‘scheme to defraud,’ rather than the completed fraud, the [subjective] elements of

reliance and damage would clearly be inconsistent with the statutes Congress enacted.”).

It is therefore irrelevant whether Mr. Niedergerke or the First National Bank loan

committee were in fact influenced by Irvin’s fraudulent representations. The pertinent

inquiry is instead whether Irvin’s representations had the capability to so influence their

decisions. By convicting Irvin of Count 2, the jury answered this question in the

affirmative, and its finding is adequately supported by the record. Mr. Niedergerke’s

requirement that Irvin submit her financial information as part of the loan application

process, for example, indicates the information was at least potentially relevant to the

bank’s decision, and Vanatta and Irvin’s decision to falsify the requested information

indicates they believed it to be so. Furthermore, Mr. Niedergerke testified it would have

been relevant to the bank’s decision to know that Irvin had submitted fraudulent tax

returns. Because these facts, combined with testimony presented throughout the trial

describing the significance of a loan applicant’s financial information, could lead a

rational trier of facts to conclude Irvin’s representations to First National Bank were

material, Irvin’s conviction on Count 2 is affirmed.

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 3. Count 4 – Money Laundering

Count 4 charged the defendants with laundering the proceeds they received from

the act of bank fraud charged in Count 2. As with Count 2, Irvin was found guilty while

Miller was acquitted. The money-laundering statute under which Irvin was tried and

convicted, 18 U.S.C. § 1957(a), forbids a person from engaging “in a monetary

transaction in criminally derived property of a value greater than $10,000” in which the

property “is derived from specified unlawful activity.” For Count 4, the “specified

unlawful activity” was identified as the substantive act of bank fraud charged by the

government in connection with the Lake Ozark Transaction. Accordingly, the jury was

instructed that convicting any defendant on Count 4 required proof beyond a reasonable

doubt of four elements: (1) the defendant engaged in a monetary transaction affecting

interstate commerce; (2) the defendant knew the transaction involved criminally derived

property; (3) the transaction involved property valued higher than $10,000; and (4) the

property was derived from the act of bank fraud charged in connection with the Lake

Ozark Transaction (i.e., the crime charged in Count 2). Irvin raises two challenges to the

sufficiency of the evidence supporting her conviction on Count 4.

Irvin first argues that because there is insufficient evidence of materiality to

support her conviction for the predicate bank fraud charged in Count 2, there is

necessarily insufficient evidence to support the derivative crime of money laundering

charged in Count 4. See United States v. Lake, 472 F.3d 1247, 1260-61 (10th Cir. 2007)

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(reversing conviction for money laundering where predicate act of wire fraud

unsupported by sufficient evidence). As explained above, however, the record provides

sufficient evidence of materiality to support the jury’s verdict against Irvin on Count 2.

Irvin’s argument therefore rests on a mistaken premise and must be rejected.

Irvin’s second argument challenges the sufficiency of the evidence supporting the

jury’s required finding that her money laundering transaction involved “criminally

derived property.” In the context of money laundering, “criminally derived property” is

statutorily defined as “any property constituting, or derived from, proceeds obtained from

a criminal offense,” and the jury was so instructed. 18 U.S.C. § 1957(f)(2). At the time

of Irvin’s trial, however, the term “proceeds” was not defined by the statute.8 The

defendants, relying on United States v. Santos, 553 U.S. 507 (2008), persuaded the

district court—over the government’s objection—to provide an additional instruction

clarifying that the term “‘proceeds’ means profits” (the “Santos Instruction”).

The government identified the criminally obtained proceeds laundered in Count 4

to be the loan funds disbursed by First National Bank in connection with the Lake Ozark

Transaction. The testimony of two witnesses at trial, however, indicated without

contradiction that these loan funds did not constitute profit to the defendants because they

8
Congress has since amended the money laundering statute to define the term
“proceeds” as “any property derived from or obtained or retained, directly or indirectly,
through some form of unlawful activity, including the gross receipts of such activity.”
Fraud Enforcement and Recovery Act of 2009, 123 Stat. 1617, 1618 (2009) (codified at
18 U.S.C. § 1956(c)(9)).

-21-
were immediately used to purchase property. That is, the Lake Ozark Transaction loan

funds did not accrue to Irvin or Miller, but rather flowed away from them as payment for

the Lake Ozark house. Because nothing else in the record indicates whether these loan

funds constituted profits, and because the jury was instructed that “‘proceeds’ means

profits,” Irvin contends no rational jury could have found she was involved in a

transaction involving proceeds obtained from a criminal offense.

Contrary to the Santos Instruction given by the district court, the term “proceeds,”

as used in the version of § 1957 effective at the time of Irvin’s trial, is not strictly limited

to profits. The district court’s initial9 conclusion to the contrary apparently stemmed

from confusion surrounding the Supreme Court’s decision in Santos, in which a 4-1-4

plurality held that in the context of an illegal gambling operation, proceeds means

“profits” rather than “gross receipts.” 553 U.S. at 514 (plurality opinion); id. at 528 &

n.7 (Stevens, J., concurring in judgment); see also United States v. Thornburgh, 645 F.3d

1197, 1208-09 (10th Cir. 2011) (describing disagreement among the circuits regarding

the significance of Santos). This court has since clarified that Santos’s holding must be

confined to its factual setting, and that “‘proceeds’ means ‘profits’ for the purpose of the

money laundering statute only where an illegal gambling operation is involved.”

Thornburgh, 645 F.3d at 1209 (emphasis in original). In cases not involving illegal

9
In its order denying the defendants’ post-trial motions for acquittal, the district
court later concluded that “the definition of proceeds as used in § 1957 means gross
receipts, notwithstanding that the Court [had earlier] instructed the jury [that proceeds
means profits] out of an abundance of caution.”

-22-
gambling operations, “proceeds” means “gross receipts.” Id.; see also United States v.

Van Alstyne, 584 F.3d 803, 814 (9th Cir. 2009); United States v. Bucci, 582 F.3d 108,

123-24 (1st Cir. 2009). Because Miller’s and Irvin’s criminal activities did not involve

an illegal gambling operation, the latter, broader definition of proceeds applies.

Although the jury instructions given below defined the crime of money laundering

more stringently than necessary, they do not direct our consideration of the sufficiency of

the evidence. The government’s timely objection to the “proceeds means profits”

instruction prevented that instruction from becoming the law of the case. United States v.

Williams, 376 F.3d 1048, 1051 (10th Cir. 2004).10 Consequently, our review must

determine only whether sufficient evidence supports each of the elements actually

required by law to sustain a conviction for money laundering under § 1957(a). See id. at

1051-52 & 1052 n.3.

Properly considered, the crime of money laundering requires proof beyond a

reasonable doubt that (1) the defendant engaged in or attempted to engage in a monetary

transaction; (2) in criminally derived property worth at least $10,000; (3) with knowledge

10
As explained in United States v. Williams, “[t]he doctrine of law of the case is
an equitable remedy whose purpose is to prevent the government from arguing on appeal
a position which it abandoned below.” 376 F.3d 1048, 1051 (10th Cir. 2004). Thus,
when the government fails to object to a proposed jury instruction “[t]he law of the case
is applied to hold the government to the burden of proving each element of a crime as set
out in [the given instruction] even if the unchallenged jury instruction goes beyond the
criminal statute’s requirements.” Id. The rationale driving the doctrine of law of the case
is inapplicable where, as here, the government did not abandon its objection to the Santos
Instruction. Id. at 1052.

-23-
that the property was derived from unlawful activity; and (4) the property was, in fact,

derived from specified unlawful activity. Lake, 472 F.3d at 1260. “‘[C]riminally derived

property’ means any property constituting, or derived from, proceeds obtained from a

criminal offense,” 18 U.S.C. § 1957(f)(2) (2008), and “proceeds” means “gross receipts”

in cases not involving illegal gambling operations. Because there is no question the

funds disbursed by First National Bank could rationally be viewed as the gross receipts of

the bank fraud charged in Count 2, and because there was ample evidence Irvin

knowingly used those funds to purchase a $600,000 house in Lake Ozark, Missouri, her

conviction on Count 4 is affirmed.

4. Count 5 – Money Laundering

Just as Counts 2 and 4 formed a linked pair (bank fraud and money laundering), so

too did Counts 3 and 5. Count 3 charged defendants with bank fraud in connection with

their efforts to obtain a mortgage loan for Ms. Kerrie Jordan from First Horizon Home

Loan Corporation (“First Horizon”), in violation of 18 U.S.C. § 1344. The government

presented evidence that Ms. Jordan’s credit and financial history were insufficient to

secure such a loan and the defendants therefore falsified her loan application submissions

to increase her apparent credit-worthiness, inflating her monthly income and bank

balances. Furthermore, the government presented evidence defendants had procured an

artificially inflated appraisal of Ms. Jordan’s intended home. First Horizon ultimately

agreed to provide mortgage financing to Ms. Jordan in the amount of $176,000, of which

-24-
$123,931.82 was used to pay off an outstanding construction loan on Ms. Jordan’s new

home. In Count 5, the government argued this use of the loan proceeds constituted

money laundering in violation of 18 U.S.C. § 1957. The jury acquitted all defendants of

the substantive act of bank fraud charged in Count 3, but found Miller, Irvin, and Vanatta

guilty of the Count 5 money laundering charge. Miller and Irvin now challenge the

sufficiency of the evidence supporting their convictions on Count 5.

To convict Miller and Irvin of money laundering in Count 5, the jury was required

to find beyond a reasonable doubt that (1) the defendants knowingly engaged in a

monetary transaction affecting interstate commerce; (2) knowing, at the time, that the

transaction involved criminally derived property; (3) the transaction involved property of

a value greater than $10,000; and (4) the property was derived from the specified

unlawful activity of bank fraud in violation of 18 U.S.C. § 1344. Because the

government identified the “specified unlawful activity” on which Count 5 rested as the

crime charged in Count 3, the evidence must also be sufficient to support a rational jury’s

conclusion the laundered money constituted the proceeds of that substantive act of bank

fraud. See, e.g., Lake, 472 F.3d at 1260-61 (reversing conviction for money laundering

where insufficient evidence supported conviction on predicate offense of wire fraud). It

is against the proof of this derivative requirement that Miller and Irvin primarily focus

-25-
their challenge, but their arguments are quite different. 11

Miller contends that because the jury found him not guilty on Count 3, his

conviction on Count 5 cannot stand. It is well-settled, however, that an inconsistent

verdict is not a sufficient reason for setting a verdict aside. United States v. Powell, 469

U.S. 57, 64-66 (1984); United States v. Harris, 369 F.3d 1157, 1168 (10th Cir. 2004).

“[C]onsistency in verdicts is not required because, where truly inconsistent verdicts have

been reached, the most that can be said is that the verdict shows that either in the acquittal

or the conviction the jury did not speak their real conclusions, but that does not show that

they were not convinced of the defendant’s guilt.” United States v. McCullough, 457

F.3d 1150, 1161 n.2 (10th Cir. 2006) (quotations omitted) (concluding defendant’s

acquittal on conspiracy charges did not require reversal of his conviction for using a

telephone to facilitate the conspiracy). For this very reason, other courts have upheld

convictions for money laundering even where there was an acquittal on the predicate

offense. See, e.g., United States v. Richard, 234 F.3d 763, 768 (1st Cir. 2000)

(concluding defendant’s acquittal on predicate offense of bankruptcy fraud did not

require reversal of his conviction for money laundering). Miller’s acquittal on Count 3

does not impact his conviction on Count 5.

Miller also challenges the evidence supporting the second required element of

11
Miller and Irvin also challenge their money laundering convictions on Count 5
based on the Santos Instruction. For the same reasons the Santos Instruction argument
was rejected in relation to Count 4, it is rejected in relation to Count 5.

-26-
Count 5; namely, that he knew the transaction in question involved criminally derived

property. He contends the only evidence he was aware of any wrongdoing in connection

with the Jordan Transaction came from Ms. Jordan’s testimony, in which she stated she

complained to Miller about the increase in her sales price after the closing. Therefore,

Miller reasons, the jury had no rational basis to conclude he had knowledge of the

criminally derived nature of the loan proceeds prior to the laundering transaction. Miller

understates the contents of the record. The government presented evidence the

defendants surreptitiously increased the sales price for Ms. Jordan’s home from $200,000

to $220,000 after it became apparent Ms. Jordan’s original submissions would not be

sufficient to obtain financing. Inflating the value of Ms. Jordan’s home in this way had

the effect of increasing the apparent loan-to-collateral ratio presented to First Horizon,

thereby making the mortgage loan appear less risky. Other evidence indicated the

$220,000 sales price was supported by an appraisal that overstated the value of the home

by $35,000, and that Miller had contributed to this overvaluation by providing the

appraiser with Miller-built comparables. Finally, testimony indicated that Miller set the

final sales price for his homes and otherwise “controlled everything” about his business.

Viewing the evidence in the light most favorable to the government, a rational jury could

conclude Miller was aware the proceeds from Ms. Jordan’s loan constituted criminally

derived property given his personal involvement in the substantive act of bank fraud that

procured them.

-27-
 Irvin’s attack on the sufficiency of the underlying bank fraud count is more

nuanced. The government elected to submit Count 3 to the jury solely under the second

prong of 18 U.S.C. § 1344, which prohibits the knowing execution, or attempted

execution, of “a scheme or artifice . . . to obtain any of the moneys, funds, credits, assets,

securities, or other property owned by, or under the custody or control of, a financial

institution, by means of false or fraudulent pretenses, representations, or promises.”

(emphasis added). First Horizon, the lender to whom the defendants submitted Ms.

Jordan’s falsified loan application, did not accept deposits and lacked a certificate of

FDIC insurance. It therefore did not constitute a “financial institution” under federal law

applicable at the time. See 18 U.S.C. § 20 (2008). 12 Acknowledging this, the

government sought to prove the loan funds disbursed by First Horizon constituted

property “owned by, or under the custody or control” of First Tennessee National Bank

(“First Tennessee”), First Horizon’s corporate parent and a “financial institution” for

purposes of the statute. Irvin argues the government did not carry its burden of proving

this necessary element of the bank fraud charge, and that her conviction on Count 5 must

therefore fall.

The evidence adduced at trial indicates First Horizon was a wholly owned

operating subsidiary of First Tennessee. To fund residential single-family mortgage

12
18 U.S.C. § 20 has since been amended to include mortgage lending businesses
like First Horizon within the definition of “financial institution.” See Fraud Enforcement
and Recovery Act of 2009, 123 Stat. 1617, 1617 (2009) (codified at 18 U.S.C. § 20).

-28-
loans, like the one extended to Ms. Jordan, First Horizon would draw on a $5 billion line

of credit made available to it by First Tennessee. First Horizon would then bundle such

loans into mortgage-backed securities within thirty to forty-five days of their origination

and sell them to investment banks on the secondary market. The proceeds from these

sales were then used to repay First Horizon’s debts to First Tennessee. In deciding

whether or not to issue a certain loan, First Horizon followed its own internal loan-

application process and underwriting guidelines, and maintained its own team of due-

diligence officers to confirm the security of its loans. First Tennessee played no role in

First Horizon’s loan-issuance decisions. Finally, the evidence specific to Ms. Jordan’s

mortgage loan identified First Horizon as the lender, and indicated First Horizon held the

deed of trust on the Jordan property.

Irvin concludes from these facts that Ms. Jordan’s mortgage loan was strictly the

property of First Horizon, and was never owned by, or under the custody or control, of

First Tennessee. Her reasoning in this regard appears correct, and First Tennessee’s

corporate ownership of First Horizon does not change the analysis for “[a] corporate

parent which owns the shares of a subsidiary does not, for that reason alone, own or have

legal title to the assets of the subsidiary.” Dole Food Co. v. Patrickson, 538 U.S. 468,

475 (2003). Count 3, however, did not charge the defendants with scheming to obtain the

financial instrument representing Ms. Jordan’s mortgage loan. Instead, the government

charged them with “[s]ubmitting false loan application information for Kerrie Jordan,

borrower, to First Horizon to obtain proceeds from First Tennessee Bank.” (emphasis

-29-
added). The single relevant fact, then, is that the loan proceeds disbursed from First

Horizon upon its decision to fund Ms. Jordan’s mortgage indisputably came from the

credit line extended to it by First Tennessee. As former First Horizon litigation analyst

Ed Hyne testified at trial, only once the underwriters at First Horizon made the decision

to fund a particular loan would it draw against its line of credit with First Tennessee. A

rational trier of fact would be perfectly justified in concluding that, until such time, the

funds comprising the line of credit were owned by, and in the custody and control of,

First Tennessee.13

Miller’s and Irvin’s convictions on Count 5 are supported by sufficient evidence

and are affirmed.

13
A different conclusion would perhaps be required had First Tennessee already
loaned First Horizon the funds used for Ms. Jordan’s loan prior to their disbursement, for
in that case First Tennessee could possibly be said to no longer own or control those
funds. See, e.g., United States v. Bennett, 621 F.3d 1131, 1136-47 (9th Cir. 2010)
(rejecting argument that FDIC-insured parent bank “owned” funds of wholly-owned
subsidiary and reversing bank fraud conviction for insufficiency of evidence). But see
United States v. Walsh, 75 F.3d 1, 9 (1st Cir. 1996) (upholding bank fraud conviction
where directly defrauded entity was not a “financial institution,” but was a wholly-owned
subsidiary of one, and where parent bank provided subsidiary’s operating capital and
exercised control over subsidiary’s lending decisions).

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 5. Counts 9 & 10 – Criminal Contempt

Counts 9 and 10 charged the defendants with violating 18 U.S.C. § 3148(c).14

That section provides, “[t]he judicial officer may commence a prosecution for contempt .

. . if the person has violated a condition of release.” The condition of release implicated

in Counts 9 and 10 was the requirement that Miller “not commit any offense in violation

of federal, state or local law while on release” from custody in connection with the Miller

I prosecution. In Count 9, the government alleged the defendants violated the law by

engaging in the federal offense of bank fraud charged in Count 3. Likewise, in Count 10,

the government alleged the defendants violated the law by engaging in the federal offense

of money laundering charged in Count 5. Both Miller and Irvin were found guilty of

Counts 9 and 10, and both challenge the sufficiency of the evidence underlying their

convictions.

Miller first contends his conviction on Count 9 must fail because it was

specifically linked to the crime charged in Count 3. Because the jury acquitted him of the

bank fraud charged in Count 3, he reasons, the government failed to prove a necessary

element for conviction on Count 9. As discussed in the context of Miller’s challenge to

Count 5, however, “consistency in verdicts is not required,” and an inconsistent verdict

14
The Second Superseding Indictment and Judgments in this case mistakenly state
that Counts 9 and 10 were premised upon a violation of 18 U.S.C. § 1348(c). There is no
such subsection. It is clear from the jury instructions and the context of the case that
Counts 9 and 10 are in fact premised upon 18 U.S.C. § 3148(c).

-31-
provides no reason for setting a conviction aside. Powell, 469 U.S. at 64-66. His

conviction on Count 9 is affirmed.

Miller also contends his conviction on Count 10 must fall because it was

specifically linked to the crime charged in Count 5, which he believes was unsupported

by sufficient evidence for the reasons discussed in Section III(B)(4), supra. That

argument is, as demonstrated by the above analysis, flawed. Miller’s conviction on

Count 5 was supported by adequate evidence, and Miller’s conviction on Count 10 is

therefore affirmed.

Irvin contends nothing in the record indicates she was even aware of Miller’s

conditions of release from Miller I, and that without proof of such knowledge the jury

could not rationally have found that she knowingly aided and abetted Miller’s violation

of those conditions. See United States v. Green, 175 F.3d 822, 832 (10th Cir. 1999)

(“The essence of aiding and abetting liability is proof the defendant willfully associated

with a criminal venture and sought through some affirmative action to make that venture

succeed.” (quotation omitted)). The government offers no direct evidence in

contradiction of Irvin’s position. It instead argues the record contains circumstantial

evidence that, when viewed in the light most favorable to the government and combined

with all permissible inferences, supports the jury’s conclusion Irvin was aware of Miller’s

conditions of release. Sparks’s testimony he found out about Miller’s conditions of

release from Vanatta, for example, is cited by the government as sufficient evidence to

support a rational person’s conclusion that Vanatta also informed Irvin of the conditions.

-32-
Other evidence indicated business monitor Steve Browne had been to Miller’s office to

examine certain records, and had also looked into the Lake Ozark Transaction, in which

Irvin had played a role. The government urges us to conclude this, too, supports the

jury’s conclusion that Irvin was aware Miller was subject to a condition of release that

forbade him violating federal law.

This evidence, without more, is insufficient to support the jury’s conclusion that

Irvin knew of Miller’s conditions of release. “While the jury may draw reasonable

inferences from direct or circumstantial evidence, an inference must be more than

speculation and conjecture to be reasonable, and caution must be taken that the

conviction not be obtained by piling inference on inference.” United States v. Jones, 44

F.3d 860, 865 (10th Cir. 1995) (quotations omitted). Both routes to proving Irvin’s

knowledge proposed by the government go beyond the realm of “reasonable inferences”

and into impermissible speculation. The conclusion that “if Vanatta told Sparks, he must

have told Irvin” rests on no logical basis whatsoever. Similarly, although Browne’s

presence in the office and review of the Lake Ozark Transaction might have been noticed

by Irvin,15 there is no logical basis to infer she was also made aware of the reasons for his

activities. Furthermore, because there is no evidentiary basis for concluding that Irvin

was aware of Miller’s conditions of release, Irvin’s convictions for Counts 9 and 10

cannot be supported on the alternative basis of co-conspirator liability. The doctrine of

15
The evidence also indicated Irvin was rarely present in the office, making this
inference itself somewhat tenuous.

-33-
co-conspirator liability operates to hold a defendant responsible for the crimes of his co-

conspirators, if those crimes are committed to help advance the conspiracy and are within

the reasonably foreseeable scope of the conspiracy. Pinkerton v. United States, 328 U.S.

640, 646-48 (1946). Here, because there is no basis to conclude Irvin was even aware of

Miller’s conditions of release, she could not reasonably have foreseen that Miller would

violate them, or that their violation was necessary to advance the conspiracy to which she

had agreed. Irvin’s convictions for Counts 9 and 10 are not supported by sufficient

evidence and are reversed.

C. Closing Arguments

In its closing argument, the government made the following statements to the jury:

There’s no question, ladies and gentlemen of the jury, that these folks
targeted the subprime market, people who really had no ability to qualify
for these homes. And they didn’t help society. They didn’t help the home
buyer by putting them into a house that the buyer was unqualified for.
They did just the opposite.

They’re not responsible for everything that’s going on in the subprime
market right now, but they are a portion of that.

(emphasis added). Miller and Irvin contemporaneously objected to the emphasized

language as unduly inflammatory, and cited it as grounds for a mistrial. The district court

overruled this objection and denied the mistrial, reasoning that (i) the government’s

commentary was justified in light of the evidence that Miller and Irvin were involved in

the subprime mortgage market; (ii) the government had qualified its statement by

indicating that defendants were not the sole cause of the subprime crisis; and (iii) any

-34-
possible impact of the government’s commentary was mitigated by cautionary

instructions. It later reminded the jury during final instructions that statements of counsel

were not to be viewed as evidence.

Miller and Irvin now repeat their contention that the government’s statements

during closing arguments were improper commentary, designed to arouse the prejudice

and passion of the jurors against them. They claim the government’s commentary was

particularly prejudicial in light of the economic crisis gripping the nation at the time of

the trial, and that there is sufficient reason to conclude it may have influenced the jury’s

verdict, despite the cautionary jury instructions. Accordingly, Miller and Irvin request

reversal of their convictions and a new trial.

“Where the defendant contemporaneously moves for a mistrial on the basis of

prosecutorial misconduct, we review the denial of such a motion for abuse of discretion.”

United States v. Taylor, 514 F.3d 1092, 1095 (10th Cir. 2008). This review requires

determinations whether (1) the prosecutor’s statements were improper and (2) if so,

whether the statements were “harmless beyond a reasonable doubt.” United States v.

Martinez-Nava, 838 F.2d 411, 416 (10th Cir. 1988). Miller and Irvin cannot show the

district court’s ruling constituted an abuse of discretion on either aspect of this inquiry.

First, the government’s statements were not improper. Miller himself testified that his

use of “creative financing” to obtain financing for unqualified buyers was helpful to

society, and the government is entitled to considerable latitude in responding to such

arguments during its closing. See, e.g., United States v. Villa-Chaparro, 115 F.3d 797,

-35-
803 (10th Cir. 1997); United States v. Janus Indus., 48 F.3d 1548, 1558 (10th Cir. 1995).

Even if the challenged statements were improper, however, they did not deprive Miller

and Irvin of a fair trial because they were harmless. In evaluating the harm or prejudice

of an improper statement, this court must consider the extent of the misconduct; whether

the district court took steps to mitigate the impact of the misconduct; and the role of the

misconduct within the case as a whole. Martinez-Nava, 838 F.2d at 416. The conduct

complained of here comprises two sentences made over the course of a month-long trial,

in response to Miller’s own testimony. The district court took pains, during closing

arguments and again during final instructions, to ensure the jury understood that

statements of counsel did not constitute evidence. And the government’s case was

otherwise devoid of any suggestion the defendants were responsible for the subprime

mortgage crisis. The government’s closing argument was therefore neither improper nor

prejudicial, and the district court’s denial of a mistrial is affirmed.

D. Cumulative Effect of Errors at Trial

Miller contends that, to the extent none of the above-described allegations of error

provide sufficient grounds for reversal of his conviction, their cumulative prejudicial

impact is such that he should nevertheless be entitled to a new trial.16 See United States

v. Rogers, 556 F.3d 1130, 1144 (10th Cir. 2009) (“The purpose of cumulative error

analysis is to address whether the cumulative effect of two or more individually harmless

16
Irvin does not join in Miller’s request for a cumulative-error analysis.

-36-
errors has the potential to prejudice a defendant to the same extent as a single reversible

error.” (quotation omitted)). Cumulative error analysis cannot justify remand for retrial

in the instant case because Miller has only successfully identified a single instance of

error; namely, the admission of Exhibit 1-2. See Moore v. Reynolds, 153 F.3d 1086,

1113 (10th Cir. 1998) (“Cumulative error analysis applies where there are two or more

actual errors; it does not apply to the cumulative effect of non-errors.” (emphasis

added)). Miller’s request for a new trial on the basis of cumulative error is, therefore,

denied.

E. Sentencing Challenges

Miller challenges the sentence imposed upon him by the district court. He

contends the district court improperly calculated the intended loss attributable to his

criminal conduct and improperly applied sentencing enhancements for his use of

sophisticated means and role as organizer or leader of the criminal enterprise. Because

Miller’s conviction for conspiracy to commit bank fraud has been reversed, and because

the conspiracy count was used to determine Miller’s offense level, his sentence must be

recalculated on remand. See U.S.S.G. § 3D1.3(b) (directing the application of the

“offense guideline that produces the highest offense level” in the case of counts grouped

together pursuant to § 3D1.2(d) and involving offenses of the same general type). We

therefore decline to pass upon the district court’s methodology in determining the

intended loss flowing from his crimes. Similarly, the sophisticated means enhancement

-37-
constituted a specific offense characteristic of the reversed conspiracy charge, and

Miller’s challenge to its applicability need not be addressed at this time. See id. §

2B1.1(b)(9)(C).

The reversal of Miller’s conviction on the conspiracy count does not, however,

prevent the court from reviewing the applicability of the four-level Organizer/Leader

enhancement provided under U.S.S.G. § 3B1.1(a), as that enhancement need not be

linked to a specific crime of conviction. See id. § ch. 3, pt. B, introductory cmt.

In evaluating the application of a Guidelines enhancement, we review
factual findings for clear error, but to the extent the defendant asks us to
interpret the Guidelines or hold that the facts found by the district court are
insufficient as a matter of law to warrant an enhancement, we must conduct
a de novo review.

United States v. Hamilton, 587 F.3d 1199, 1222 (10th Cir. 2009) (quotation omitted). In

its written order ruling on the parties’ objections to the Presentence Report, the district

court listed what it considered to be the relevant conduct for purposes of the

Organizer/Leader enhancement:

Without Miller’s participation, there would have been no fraudulent loan
transactions. Moreover, . . . testimony established that Miller was the
organizer and leader, and described his business operations and motives . . .
. Miller directed and led others to set prices based on false and inflated
appraisals based solely on Miller-built homes, obtain loan approvals with
false documentation that buyers were coached to create or that co-
conspirators created for them, use mortgage brokers who participated in the
fraudulent creation of loan applications and documentation . . . and that
builders or Miller fronted down payment in cash or on paper, taking back a
secret second mortgage that Miller made little effort to collect, preferring
that buyers get it rolled into a new refinance later on.

-38-
Miller contends that these findings are insufficient to support the district court’s

application of the Organizer/Leader enhancement, a contention we review de novo.

Sentencing Guidelines § 3B1.1(a) prescribes the application of a four-level

increase to a defendant’s offense level “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive.” A

defendant may be ruled an organizer or leader upon consideration of

the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed
right to a larger share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised over others.

Id. § 3B1.1, cmt. n.4. Furthermore, the determination of a defendant’s leadership role

should be premised on “all conduct within the scope of § 1B1.3 (Relevant Conduct),” id.

ch. 3, pt. B, introductory cmt. Such conduct includes “all acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant . . . that occurred during the commission of the offense of conviction [or] in

preparation for that offense.” Id. § 1B1.3(a)(1)(A). The factual findings listed as the

basis for the Organizer/Leader enhancement, although cited by the district court as

conduct relevant to Miller’s conspiracy conviction, are equally relevant to Miller’s

money laundering conviction on Count 5, which rested upon a predicate offense of bank

fraud perpetrated in the same manner as the bank fraud charged in the conspiracy count.

They are now adopted by this court as the conduct relevant to his money laundering

conviction on Count 5 for purposes of determining whether Miller was an organizer or

-39-
leader.17 See United States v. Caldwell, 585 F.3d 1347, 1350 (10th Cir. 2009) (“[W]hen

determining whether certain activity qualifies as relevant conduct under the Guidelines,

similarity, regularity, and temporal proximity are the significant elements to be

evaluated.” (quotation and alteration omitted)).

So defined, Miller’s relevant conduct justifies the application of the four-level

Organizer/Leader enhancement of § 3B1.1(a). The district court’s findings support the

conclusion that the criminal activity involved five or more participants (Vanatta, Irvin,

Sparks, Sandra Harris, and Miller himself) and that Miller (1) played a central role in the

commission of their criminal activities; (2) recruited accomplices to the criminal activity,

such as Vanatta; and (3) directed the criminal activity to the extent he retained final

authority over sales prices. Rather than offer any argument negating the preceding

conclusions, Miller merely complains that neither Sparks nor Middleton directly testified

that he was their leader, and that Sparks admitted engaging in bank fraud independent of

Miller’s involvement. Nevertheless, the indicia of leadership listed in the commentary to

§ 3B1.1(4) are present, and the district court did not err in applying the Organizer/Leader

enhancement.

17
The relevant conduct for application of the Organizer/Leader enhancement is a
legal determination within the plenary review of the appellate court. See United States v.
Caldwell, 585 F.3d 1347, 1349-50 (10th Cir. 2009) (“We review the district court’s
factual finding supporting a determination of relevant conduct for clear error but review
the ultimate determination of relevant conduct de novo.” (quotation omitted)).

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IV. Conclusion

For the foregoing reasons, Miller’s conviction on Count 1, and Irvin’s convictions

on Counts 1, 9, and 10 are REVERSED. Their remaining convictions are AFFIRMED.

Furthermore, the district court’s application of the Organizer/Leader enhancement to

Miller’s sentence is AFFIRMED. The matters are remanded to the district court for

further proceedings not inconsistent with this opinion.

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