United States v. Weidner

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 16, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. Nos. 04-3084, 04-3118

CLINTON ODELL WEIDNER, II, and
DAVID C. WITTIG,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 02-CR-40140-01/02-JAR)

Bruce W. Simon, Kansas City, Missouri, for Defendant-Appellant Clinton Odell
Weidner, II.

Steven A. Reiss, Weil, Gotshal & Manges LLP, New York, New York (Jeffrey D.
Morris, Berkowitz, Stanton, Brandt, Williams & Shaw, Prairie Village, Kansas,
and Gregory S. Coleman, Lisa R. Eskow, and Meredith B. Parenti, Weil, Gotshal
& Manges LLP, Austin, Texas, with him on the briefs), for Defendant-Appellant
David C. Wittig.

Richard L. Hathaway, Senior Litigation Counsel, Topeka, Kansas (Eric F.
Melgren, United States Attorney, with him on the brief), for the Plaintiff-
Appellee.
Before HENRY , LUCERO , Circuit Judges, and BRACK , District Judge. *

HENRY, Circuit Judge.

This federal criminal prosecution arises out of a $1.5 million loan from

David C. Wittig to Clinton Odell Weidner, II. In April 2001, when Mr. Wittig

made the loan, Mr. Weidner was the president, chief executive officer, and

general counsel of the Topeka, Kansas bank at which Mr. Wittig did business.

The government alleged that Mr. Weidner and Mr. Wittig concealed the loan, and

the jury agreed, convicting both men of one count of conspiracy to submit false

entries to a federally insured bank and to launder money, in violation of 18 U.S.C.

§ 371; four counts of making a false bank entry, in violation of 18 U.S.C. § 1005;

and one count of money laundering, in violation of 18 U.S.C. § 1957. The jury

also convicted Mr. Weidner of a criminal forfeiture count involving the Arizona

real estate in which he had invested the $1.5 million that he had borrowed from

Mr. Wittig. The district court sentenced Mr. Wittig to concurrent terms of fifty-

one months’ imprisonment on each of the six counts, followed by a three-year

*
The Honorable Robert C. Brack, United States District Judge for the District of
New Mexico, sitting by designation.

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term of supervised release, and ordered him to pay a $1 million fine. The court

sentenced Mr. Weidner to concurrent terms of seventy-eight months’

imprisonment, also followed by three years’ supervised release.

In this appeal, Mr. Weidner and Mr. Wittig raise a variety of issues relating

to the sufficiency of the evidence and the adequacy of the jury instructions. They

also challenge their sentences, arguing that the district court erred in calculating

the amount of loss and in basing their sentences on factual findings not made by

the jury.

Although the government’s case was largely circumstantial, we conclude

that the evidence was sufficient and that the jury instructions were adequate.

However, as to the defendants’ sentencing challenges, we conclude that, in light

of the ambiguity of the Guidelines, the district court did err in calculating the

amount of the loss. Accordingly we affirm the defendants’ convictions, vacate

their sentences, and remand the cases for resentencing in accordance with this

opinion and the principles set forth in United States v. Booker, 543 U.S. 220

(2005).

I. BACKGROUND

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 In recounting the relevant facts, we view the record in the light most

favorable to the government. See United States v. Radcliff, 331 F.3d 1153, 1157

(10th Cir. 2003).

A. The Loan Transactions

During 2001 and 2002, Mr. Weidner was the president, chief executive

officer, and general counsel of Capital City Bank in Topeka, Kansas. Mr. Wittig

was an established Capital City Bank customer with substantial assets: a March

2001 financial statement on file with the bank reported a net worth of $33.921

million. He was the chairman of the board, president, and chief executive officer

of Western Resources, Inc., the largest electric utility in Kansas.

In 1998, Mr. Wittig borrowed $700,000 to purchase the Landon Mansion in

Topeka, Kansas. Two years later, he opened a $1 million line of credit in order to

renovate the mansion. By April 2001, Capital City Bank had increased Mr.

Wittig’s line of credit to $3.5 million.

In early 2001, Michael Earl, another Capital City Bank customer,

approached Mr. Weidner about a real estate project in Scottsdale, Arizona that

required a $1.5 million investment. Mr. Earl told Mr. Weidner that he was not

capable of making this investment, but he asked Mr. Weidner if he knew of

anyone who would be interested.

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 Mr. Weidner informed Mr. Wittig of the Arizona project and asked if he

was interested. Mr. Wittig responded that he thought that the investment was a

great opportunity but had other projects that he wanted to pursue instead. In

particular, Mr. Wittig explained that he thought he could get a better return at less

risk by investing in a new utility company called Westar.

Mr. Weidner then told Mr. Earl of his own interest in the Arizona project,

and he reached an agreement with Mr. Earl requiring a $1.5 million investment in

exchange for an interest in the real estate. Mr. Weidner did not have the $1.5

million he needed to make the investment. Moreover, as to its employees, Capital

City Bank rules limited loans not involving a principal residence or children’s

educational expenses to $100,000. Accordingly, Mr. Weidner needed to look

elsewhere for funds, and he approached Mr. Wittig about a loan.

In late April 2001, Mr. Weidner directed his administrative assistant,

Christy Gurney, to prepare a loan proposal increasing Mr. Wittig’s line of credit

from $3.5 million to $5.0 million. The proposal characterized its purpose as a

“[s]hort term increase of [Mr. Wittig’s] operating line for investments &

renovation costs,” Wittig App. at 523, adding that “David is the President and

CEO of Western Resources, Inc. He utilizes the Line of credit to purchase stock

and make business investments. He is also using the line to complete the final

renovation costs of the Landon mansion as well as their personal funds.” Id. at

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524. At trial, Ms. Gurney testified that Mr. Weidner provided her with the

information that she included in the loan proposal. The owner of Capital City

Bank, Frank Sabatini, approved the proposal on April 27, 2001. According to Ms.

Gurney, Mr. Wittig did not review the written loan proposal before it was

approved.

On April 30, 2001, however, Mr. Wittig and his wife did sign a “Change In

Terms Agreement” related to the $1.5 million increase in the line of credit. A

printed section of that document stated that the existing indebtedness was “the

promissory note from borrower to lender dated 7/30/00” and that “this change in

terms will serve to increase the line from the current availability of $3,500,000 to

a line availability of $5,000,000.” Id. at 528-29, 532. Mr. Wittig crossed out the

$5 million figure and wrote “$6,000,000” instead. The change of terms

agreement provided for interest at an initial annual rate of 5.39% and contained

provisions regarding default, set off, and collateral. However, the agreement

contained no further description of the purpose of the increase in the line of

credit. The agreement also included a printed section stating that “[t]his written

agreement is the final expression of the agreement between Lender and Borrower

and may not be contradicted by evidence of any prior oral agreement or

contemporaneous oral agreement between Lender and Borrower.” Id. at 528.

Finally, a section concerning “nonstandard terms” was left blank.

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 Mr. Wittig faxed the signed agreement to Ms. Gurney at Capital City Bank.

On the same day, April 30, 2001, two transactions posted to Mr. Wittig’s account

at Capital City Bank: a $1.5 million deposit and a $1.5 million withdrawal. The

$1.5 million was routed to Security Title in Phoenix, Arizona, the company

handling the real estate transaction in which Mr. Weidner wanted to invest. Ms.

Gurney testified at trial that she had not personally ordered the wire transfers and

did not know who had done so. However, she added that Mr. Weidner had the

authority and ability to make the wire transfers himself.

On the following day, Mr. Weidner and Mr. Wittig executed a promissory

note that required Mr. Weidner to pay Mr. Wittig $1.5 million at 7 % interest–in

one payment of the $1.5 million principal plus interest (due in a year), as well as

quarterly interest payments beginning on August 1, 2001. The note was secured

by the accounts, contract rights, and general intangibles of the Arizona real estate

project. At trial, an FDIC official testified that this promissory note was not

discovered in the regular examinations of the bank’s records. In the following

weeks, Mr. Wittig received two additional $500,000 increases in his line of credit

at Capital City Bank–one on May 14, 2001, and another on June 7, 2001.

Mr. Weidner and Mr. Wittig both filed documents with the bank that failed

to disclose the $1.5 million loan between them. First, on May 14, 2001, Mr.

Weidner submitted his responses to an officer’s questionnaire, part of a regular

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examination of the bank by the FDIC. One question asked Mr. Weidner to “[l]ist

all extensions of credit made for the accommodation or direct benefit of anyone

other than those whose names appear either on the note or on other related credit

instruments.” Wittig App. at 685. Mr. Weidner responded “none.” Id. Second,

on May 31, 2001, Mr. Weidner submitted an annual personal financial statement

on a preprinted form containing a section listing notes, accounts, and bills and

contracts payable. Mr. Weidner left that section blank. Finally, on January 8,

2002, Mr. Wittig and his wife submitted an annual financial statement required by

the terms of their credit agreement with the bank. The Wittigs stated that they

had $5.5 million in liabilities to Capital City Bank but did not list a $1.5 million

loan to Mr. Weidner as an asset.

In late July 2001, soon before the first payment on the $1.5 million note

from Mr. Wittig came due, Mr. Weidner requested a loan of $20,000 from the

Capital City Bank. In the loan application, he stated that the purpose of the loan

was to finance the purchase of a Harley Davidson motorcycle. Mr. Weidner

obtained the loan and deposited the $20,000, along with a personal check for

$7,000, into an account at a different bank, Capitol Federal Savings and Loan. At

Capitol Federal, Mr. Weidner drew a cashier’s check payable to Mr. Wittig. Mr.

Wittig deposited this check into a money market account at a third bank.

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 Mr. Weidner made additional payments to Mr. Wittig: one on January 31,

2002, for $52,500, and another one on May 6, 2002, for $17,500. He used his

account at Capitol Federal to make those payments, and, in conjunction with that

Capitol Federal account, he submitted a financial statement that again omitted his

liability to Mr. Wittig on the $1.5 million note.

At Capital City Bank, Mr. Weidner first disclosed the loan from Mr. Wittig

in a conversation with his administrative assistant Ms. Gurney in June 2001. He

told her that he was the beneficiary of the $1.5 million increase in Mr. Wittig’s

line of credit in April 2001. He added that he had invested the money in a luxury

subdivision and that he hoped to make a $1 million profit.

In October 2001, Ms. Gurney relayed that information to Bob Kobberman,

who was then Capital City’s chief loan officer. Bank officials filed a suspicious

activity report with the FDIC and also conveyed the information about the Wittig-

Weidner loan to the bank’s bonding company. After the disclosure of the loan,

Mr. Weidner asked a friend, J.B. McGivern, to pay back the loan from Mr. Wittig.

Mr. McGivern obtained the money and transferred it to Mr. Weidner’s Arizona

partner, Michael Earl. Mr. Earl then transferred the funds to Mr. Wittig’s account

at Capital City Bank, and Mr. Wittig paid down his line of credit by $1.6 million.

In April 2002, Mr. Weidner resigned from his position with Capital City

Bank. Bank officials asked Mr. Wittig to pledge additional utility stock, to

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increase the mortgage on his personal residence, and to provide $1 million in life

insurance benefits to properly collateralize the loan. Mr. Wittig complied with

those requests. In July 2002, he paid off his line of credit with Capital City and

opened accounts with another bank.

B. The Government’s Allegations

The government charged Mr. Weidner and Mr. Wittig with the following

offenses: conspiracy to submit false entries to a federally insured bank and to

launder money, in violation of 18 U.S.C. § 371 (count 1); making or aiding and

abetting in the making of false bank entries, in violation of 18 U.S.C. § 1005 and

18 U.S.C. § 2 (counts 2-5); and money laundering, in violation of 18 U.S.C. §

1957 (count 6). The government also sought criminal forfeiture of the Arizona

real estate (count 7).

The false bank entries alleged in counts 2 through 5 concerned the

documents that failed to reveal a $1.5 million loan from Mr. Wittig to Mr.

Weidner: (a) the April 27, 2001 loan proposal stating that Mr. Wittig was

requesting a $1.5 million increase in his line of credit to renovate the Landon

Mansion and to make business investments (count 2); (b) Mr. Weidner’s May 14,

2001 response to the FDIC’s questionnaire (count 3); (c) Mr. Weidner’s annual

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financial statement, submitted to Capital City Bank on May 31, 2001 (count 4);

and (d) the Wittigs’ January 8, 2002 financial statement, submitted to Capital City

Bank under the terms of their credit agreement (count 5).

C. Mr. Wittig’s Defense

At trial, Mr. Wittig did not contest making the loan to Mr. Weidner.

However, he argued that he reasonably assumed that the Capital City Bank

officials knew about the loan and that he in no way authorized Mr. Weidner’s

false statements.

In support of his defense, Mr. Wittig noted that he was not involved in the

preparation of the April 27, 2001 loan proposal requesting the $1.5 million

increase in his line of credit, and he contended that he did not even see the

document before the increase was approved. Similarly, Mr. Wittig pointed to Mr.

Weidner’s testimony that Mr. Wittig was not involved in any way in the

submission of the May 14, 2001 questionnaire responses and the May 31, 2001

financial statement. Additionally, Mr. Wittig invoked the testimony of Michael

Earl, the man who had informed Mr. Weidner about the Arizona real estate

opportunity. Mr. Earl stated that he believed that Capital City Bank officials

knew about Mr. Weidner’s Arizona real estate investment because Mr. Weidner

was the head of the bank and, if Mr. Weidner knew about the investment, Mr.

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Earl assumed the bank knew too. According to Mr. Wittig, he made the same

assumption about the $1.5 million loan to Mr. Weidner—that Mr. Weidner would

inform the bank.

As to his own financial statement, which also did not disclose a $1.5

million loan to Mr. Weidner, Mr. Wittig argued to the jury that the document was

submitted after Mr. Weidner had confided in Ms. Gurney about the loan and after

Ms. Gurney had informed Mr. Kobberman, the bank’s chief loan officer, about the

transaction. Thus, he contended that the omission of the loan from the financial

statement was not intended to injure or defraud the bank. Moreover, Mr. Wittig

observed, like other financial statements he had submitted to the bank, this one

omitted other assets and liabilities, such as a $1 million mortgage from Capital

City Bank on his home. According to Mr. Wittig, all of the omitted items were

linked to transactions with Capital City Bank or other information that the bank,

through Mr. Weidner, already knew. Mr. Wittig further contended that the

omission was not material: the financial statement listed $38 million in assets,

which far exceeded Mr. Wittig’s outstanding debt to Capital City Bank.

Mr. Wittig also challenged the government’s contention that his depositing

loan payments from Mr. Weidner into a money market account outside of Capital

City Bank demonstrated his intent to conceal the loan. He noted that he did not

have a money market account at Capital City Bank and that the government’s own

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witnesses acknowledged that money market accounts typically pay higher interest

rates than checking accounts. Moreover, he added, he had used the money market

account for years, and he submitted records of deposits into the account for more

than a year before the deposits of Mr. Weidner’s interest payments on the $1.5

million loan.

Finally, Mr. Wittig attacked the government’s “quid pro quo” theory—that

Mr. Wittig had made the loan to Mr. Weidner in order to obtain financing for a

new utility company. He argued that there was no need for the alleged quid pro

quo because the board of directors of Capital City Bank had openly discussed

lending money to the utility company executives, including Mr. Wittig, and

because this transaction was widely regarded as an outstanding business

opportunity for the bank. Additionally, under the bank’s lending rules, the

proposed financing of the utility exceeded the amount that Mr. Weidner could

personally approve.

D. Mr. Weidner’s Defense

Mr. Weidner pleaded guilty to counts 3 and 4 (making false entries on the

May 14, 2001 questionnaire responses and the May 31, 2001 financial statement),

but he defended the remaining counts at trial. His defense as to the conspiracy

count, the allegedly false statements on the April 27, 2001 loan proposal, and the

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money laundering charge (counts 1, 2, and 6) was that he had not intended for the

$1.5 million increase in Mr. Wittig’s line of credit to be used for the Arizona

venture. He testified that, although he did intend to borrow money from Mr.

Wittig, his understanding was that the money would come from a source outside

Capital City Bank. As to Mr. Wittig’s January 8, 2002 financial statement (the

subject of count 5), Mr. Weidner maintained that the statement was submitted by

Mr. Wittig acting alone.

E. The Judge’s Findings at Sentencing

After the jury convicted Mr. Wittig and Mr. Weidner, the district court

applied the 2001 version of the United States Sentencing Guidelines (USSG)

(those in effect at the time of the offense conduct). The sentencing proceedings

focused on the determination of the offense level based on the amount of loss.

The court determined the amount of loss in two ways. Applying USSG §

2B1.1(b)(12) , the court considered the gross receipts that the defendants had

obtained from the offenses of conviction. The court also determined the amount

of intended loss. The court found that both Mr. Wittig and Mr. Weidner had

received $1.5 million in gross receipts and that they had each intended a loss of

that amount. As to Mr. Weidner, the court further found that he had obstructed

justice and that he had abused a position of trust. Applying USSG §§ 3C1.1 and

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3B1.3, the court increased Mr. Weidner’s offense level by two points for each of

those findings.

As to Mr. Wittig, the court imposed concurrent sentences of fifty-one

months’ incarceration, a fine of $1 million, and a three-year term of supervised

release. The court sentenced Mr. Weidner to concurrent terms of seventy-eight

months’ incarceration and three years’ supervised release.

II. DISCUSSION

In these appeals, Mr. Wittig and Mr. Weidner both challenge the

sufficiency of the evidence supporting their (a) 18 U.S.C. § 371 conspiracy

convictions; (b) 18 U.S.C. § 1005 bank fraud convictions; and (c) 18 U.S.C. §

1957 convictions for money laundering. Mr. Wittig further argues that (d) the

district court erred in admitting evidence concerning his wealth and his executive

employment agreement with the utility company; and (e) the court erred in

instructing the jury on the § 1005 count and in refusing to give an instruction that

nominee loans are not illegal per se.

Both defendants also challenge their sentences on several grounds. Mr.

Wittig argues that (f) the district court erred in calculating the amount of loss

under USSG § 2B1.1(b)(12) based on loan proceeds he received because the court

had already determined that Mr. Weidner had benefitted from those proceeds.

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Both defendants argue that (g) the district court erred in increasing the offense

level based on intended loss under USSG § 2B1.1(b)(1)(I) when the loan obtained

by Mr. Wittig was fully collateralized and fully repaid; and (h) the district court

violated their Sixth Amendment rights by relying on facts not found by the jury in

imposing the sentence.

For the reasons set forth below, we must reject the defendants’ various

challenges to their convictions. However, as to their sentences, we conclude that

the district court erred in calculating the amount of loss and we therefore remand

for resentencing under the principles set forth in United States v. Booker, 543

U.S. 220 (2005).

A. Sufficiency of Evidence Supporting § 371 Conspiracy Convictions

At the close of the government’s case, the district court denied Mr. Wittig’s

and Mr. Weidner’s motions for judgments of acquittal on the conspiracy charge

and the substantive offenses. Both defendants now challenge that decision.

We engage in de novo review. United States v. Bush, 405 F.3d 909, 919

(10th Cir. 2005). In doing so, we consider both direct and circumstantial

evidence, and all reasonable inferences therefrom, in the light most favorable to

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the government. Id. We do not “question the jury’s credibility determinations or

its conclusions about the weight of the evidence.” United States v.

Lazano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999). There is sufficient

evidence to support a conviction if “a reasonable jury could find the defendant

guilty beyond a reasonable doubt.” Bush, 405 F.3d at 919 (quotation and citation

omitted). Nevertheless, “[t]he evidence, when viewed in its entirety, must

generate more than a mere suspicion of guilt, and where such evidence is equally

consistent with both guilt and innocence the conviction cannot be sustained.”

United States v. Fox, 902 F.2d 1508, 1513-14 (10th Cir. 1990) (quoting Direct

Sales Co. v. United States, 319 U.S. 703, 711 (1943)). Additionally, “we may not

uphold a conviction obtained by piling inference upon inference.” United States

v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998).

We begin with the 18 U.S.C. § 371 conspiracy charge. In order to convict a

defendant of that offense, the government must prove beyond a reasonable doubt

that (1) the defendant entered into an agreement; (2) the agreement involved a

violation of the law; (3) one of the members of the conspiracy committed an overt

act; (4) the overt act was in furtherance of the conspiracy’s object; and (5) the

defendant wilfully entered the conspiracy. United States v. Dazey, 403 F.3d

1147, 1159 (10th Cir. 2005).

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 “The core of a conspiracy is an agreement to commit an unlawful act.”

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

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

is whether the circumstances, acts, and conduct of the parties are of such a

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

unlawful agreement exists.” Id. (quoting United States v. Kendall, 766 F.2d

1426, 1431 (10th Cir. 1985)). The existence of the agreement to violate the law

may be inferred from a “unity of purpose or common design and understanding”

among conspirators to accomplish the objects of the conspiracy. Kendall, 766

F.2d at 1431.

Secrecy and concealment are often necessary to a successful conspiracy,

and, as a result, direct evidence of the crime is frequently difficult to obtain.

Dazey, 403 F.3d at 1159. “Therefore, conspiracy convictions may be based on

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

conduct and other circumstantial evidence indicating coordination and concert of

action.” Id.

Moreover, a conspiracy conviction requires “at least the degree of criminal

intent necessary for the substantive offense itself.” Morehead, 959 F.2d at 1500

(internal quotation marks omitted). Thus, mere knowledge or acquiescence in the

purposes of the conspiracy is not sufficient to establish the defendant’s willful

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entry into the conspiracy. United States v. Migliaccio, 34 F.3d 1517, 1521 (10th

Cir. 1994). Instead, the government must establish “informed and interested

cooperation, stimulation, [or] instigation.” Direct Sales, 319 U.S. at 713.

Here, the government alleged that Mr. Weidner and Mr. Wittig engaged in a

conspiracy to make false bank entries in violation of 18 U.S.C. § 1005 and to

launder money in violation of 18 U.S.C. § 1957. A § 1005 conviction requires the

government to prove that the defendant knowingly made a false bank entry or

caused such a false entry to be made and that the defendant intended to defraud

one or more of the bank’s officers, auditors, examiners, or agents. United States

v. Evans, 42 F.3d 586, 592 (10th Cir. 1994). Section 1957 requires the

government to prove the defendant’s knowing engagement in a transaction

involving criminally derived property; the defendant must know that the property

in question is “criminally derived.” United States v. Allen, 129 F.3d 1159, 1164

(10th Cir. 1997) (quoting United States v. Pettigrew, 77 F.3d 1500, 1513 (5th Cir.

1996)). As a result, in order to establish the § 371 conspiracy charge against Mr.

Weidner and Mr. Wittig, the government was required to prove that the two men

agreed to make false bank entries to defraud bank officials, and to knowingly

engage in a transaction involving criminally derived property.

With those principles in mind, we address each defendant’s contentions in

turn.

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1. Mr. Wittig

In challenging his § 371 conspiracy conviction, Mr. Wittig repeats the

arguments that he advanced at trial—that Mr. Weidner acted independently in

completing the April 27, 2001 loan proposal, May 14, 2001 questionnaire

responses, and May 31, 2001 personal financial statement, and that, as to Mr.

Wittig’s own January 8, 2002 financial statement, the government failed to

establish that the omission of the $1.5 million loan to Mr. Weidner demonstrated

an intent to deceive the bank. As a customer of Capital City Bank, Mr. Wittig

maintains, he reasonably assumed that Mr. Weidner would fulfill his obligations

to disclose the loan to the bank, and Mr. Weidner’s failure to do so is insufficient

to prove the § 371 conspiracy charge.

We acknowledge that the sufficiency of the evidence against Mr. Wittig

presents a close issue. The government’s theory was that the $1.5 million

increase in Mr. Wittig’s line of credit in April 2001 was a nominee loan, a sham

transaction in that Mr. Wittig was not the actual borrower and that the purpose of

the increase was not to renovate the Landon Mansion and fund Mr. Wittig’s other

investments, as the April 27, 2001 loan proposal stated, but rather to provide Mr.

Weidner with funds to invest in Arizona real estate. See United States v.

Waldroop, 431 F.3d 736, 741 (10th Cir. 2005) (discussing nominee loans).

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“Nominee loans are not inherently illegal, but are illegal if they are used to

deceive a financial institution about the true identity of a borrower.” Id.;

see also United States v. Saks , 964 F.2d 1514, 1519 (5th Cir. 1992) (stating that

“[c]ourts have on several occasions concluded that if a borrower obtains funds at

the insistence of and for the benefit of a bank officer, without disclosing the

officer’s interest on the loan documents, thereby knowingly flouting banking rules

and regulations designed to protect the financial integrity of the bank, a jury can

conclude that both borrower and officer acted with intent to defraud the bank”);

United States v. Shively , 715 F.2d 260, 266 (7th Cir. 1983) (observing that

“[t]here is no law against a bank customer’s lending to a bank officer, but [the

defendant bank customer] refused to lend [the defendant bank official] his own

money; and the bank would not wittingly have helped [the customer] get a hold

over [the bank official] by providing [the customer] with money to lend to [the

bank official]”).

In contrast to many of the reported cases involving nominee loans, the

government here presented no direct evidence that the alleged nominal borrower,

Mr. Wittig, suggested to the actual borrower, Mr. Weidner, that a nominee loan

scheme could be used to deceive the bank and obtain the loan. See Waldroop ,

431 F.3d at 738, 742 (discussing evidence that the defendant “came up with the

plan to use nominee loans as a way around [the bank’s borrowing] limit” and that

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the defendant had stated that “he personally could not get a loan” and had

therefore suggested that the co-defendant sign the loan application); United

States. v. Kennedy , 564 F.2d 1329, 1341 (9th Cir. 1977) (discussing direct

evidence that the defendant told a co-defendant to include false information on a

loan application).

Nevertheless, the government did present substantial circumstantial

evidence of Mr. Wittig’s participation in the alleged conspiracy. First, in order to

obtain the $1.5 million increase in his line of credit in April 2001, Mr. Wittig

signed a change in terms agreement that closely resembled other change in terms

agreements that he signed in order to increase his line of credit (e.g., the

agreements he signed in May and June 2001). The April 2001 change in terms

agreement described an increase in Mr. Wittig’s line of credit, not a loan to Mr.

Weidner, and it recited that there were no non-standard terms. Yet the

government’s evidence supported the inference that Mr. Wittig intended the $1.5

million to be used by Mr. Weidner for an investment in which Mr. Wittig himself

had declined to participate.

Another aspect of that change in terms agreement supports the

government’s contention that Mr. Wittig was involved in concealing the loan to

Mr. Weidner. Although the April 27, 2001 loan proposal prepared by Ms. Gurney

requested an increase in the line of credit from $3.5 million to $5 million, Mr.

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Wittig sought to modify the request by deleting the $5 million figure on the

change in terms agreement and writing in $6 million. The fact that Mr. Wittig

sought and obtained two additional $500,000 line of credit increases shortly

thereafter permits the inference that, in making the request for $6 million on April

27, Mr. Wittig sought to obtain $1.5 million for Mr. Weidner and $1 million for

himself through one single line of credit increase and that he sought to do so

without disclosing that part of the requested increase was for Mr. Weidner.

Moreover, the loan transaction between Mr. Wittig and Mr. Weidner was

structured in such a way that Mr. Weidner himself received no direct payments

from Mr. Wittig. Instead, the $1.5 million was deposited in Mr. Wittig’s account

and then transferred on the same day to the Arizona title company managing the

Arizona real estate transaction. As the district court noted, this was the first of

several instances in which “[the] transfer of funds between Weidner and Wittig

occurred in a manner in which it could be concealed from others at Capital City

[Bank] and from [Capital City’s] bank examiners.” Wittig App. at 1742. Even

though there was no direct evidence that Mr. Wittig ordered the $1.5 million wire

transfer to the Arizona company, the evidence permitted the jury to infer at a

minimum that he acquiesced in the transfer: Ms. Gurney testified that Mr. Wittig

closely monitored his financial transactions at the bank, and there is no indication

that he objected to the $1.5 million transfer.

-23-
 Finally, perhaps the strongest evidence of Mr. Wittig’s participation in the

concealment of the loan to Mr. Weidner comes from the document that he did

prepare and submit to the bank–the January 8, 2002 financial statement that did

not list the loan in stating his assets and liabilities. At trial, Mr. Wittig did offer

an explanation of this omission: he contended that he did not disclose it because

he believed that the bank knew about the loan. He also observed that the

financial statement omitted other significant assets and liabilities.

For several reasons, the jury could reasonably have rejected these

explanations and found the omission of the loan to demonstrate Mr. Wittig’s

participation in the conspiracy. First, even though, by January 2002, Ms. Gurney

had conveyed to the bank’s chief loan officer that Mr. Weidner was the

beneficiary of the $1.5 million line of credit increase, there is no evidence that

Mr. Wittig knew about that conversation and would have relied on it in failing to

disclose the loan. Moreover, Mr. Wittig’s January 8, 2002 financial statement did

list the line of credit with Capital City Bank. However, the statement described

the line of credit solely as a $5.5 million liability of Mr. Wittig; there was no

reference to the fact that part of that “liability” was offset by Mr. Weidner’s

obligation to pay the $1.5 million promissory note. Thus, the jury could view Mr.

Wittig’s listing of the line of credit as qualitatively different from other assets and

liabilities, such as his home mortgage, which were not mentioned at all. Rather

-24-
than an inadvertent omission, the failure to list the loan to Mr. Weidner could be

viewed as a knowing concealment of a nominee loan. See United States v.

Walker, 871 F.2d 1298, 1309 (6th Cir. 1989) (stating that the fact that a particular

document could be read in two ways, one favorable to the defendant and one

favorable to the government, did not establish that the district court erred in

denying the defendant’s motion for a judgment of acquittal because the court was

required to view the evidence in the light most favorable to the government).

Viewed as a whole, this evidence permits the conclusion that Mr. Wittig

willfully entered into an agreement to violate the bank fraud and money

laundering statutes and that he and Mr. Weidner committed overt acts in

furtherance of this conspiracy. If one or more of the individual pieces of

evidence we have discussed had been lacking, then the conspiracy charge might

have required the kind of “inference upon inference” that courts have deemed

insufficient. See Valadez-Gallegos, 162 F.3d at 1262. However, the jury here

heard evidence of a pattern of concealment of the loan to Mr. Weidner—in the

change in terms agreement, in the direct payment of $1.5 million from Mr.

Wittig’s account to the Arizona real estate investment, and in the omission of the

loan to Mr. Weidner on Mr. Wittig’s financial statement—sufficient to establish

the elements of the conspiracy charge beyond a reasonable doubt.

2. Mr. Weidner

-25-
 Mr. Weidner challenges his § 371 conviction on related grounds. First, he

criticizes the government’s quid pro quo theory—that Mr. Wittig loaned the $1.5

million to Mr. Weidner because Mr. Wittig wanted to obtain financing for a new

utility company. Mr. Weidner points to evidence that the proposal to create the

new company was public knowledge, that financing required participation by

other lending institutions, and that, as a result, Mr. Weidner could not personally

assure that Mr. Wittig would obtain the needed financing for the new company.

Second, Mr. Weidner contends that the loan transaction was not “per se

improper,” Weidner’s Br. at 28, and that the loan was a legitimate way in which

Mr. Wittig could further his business interests. He maintains that loans obtained

for third parties are not illegal.

These arguments do not persuade us. Although some of the government’s

quid pro quo evidence was indeed tenuous, the government was not required to

prove a specific motive in order to convict the defendants of the charged § 371

conspiracy. See Shively, 715 F.2d at 267 (stating, in a prosecution for the

misapplication of bank funds against a bank customer and a bank official under

18 U.S.C. §§ 656 and 1014, that “[i]t is unimportant whether [the customer loaned

money to the official] out of pure friendship, or, as is more likely, to ingratiate

himself with the officer of a bank with which he did business both as supplier and

-26-
as borrower”). The gist of the government’s case was that the defendants made

false statements so that Mr. Weidner could obtain the loan from Mr. Wittig.

As to Mr. Weidner’s contention that loans obtained for third parties are not

per se illegal, we agree. See Waldroop, 431 F.3d at 741. However, the

government’s case was based not merely on Mr. Wittig’s obtaining money for a

third party but on the concealing of the loan from the bank. Thus, the fact that

these loans are not per se illegal does not undermine the government’s case.

From the evidence we have discussed, a jury could reasonably conclude that

Mr. Weidner willfully entered into a conspiracy with Mr. Wittig to violate the

bank fraud and money laundering statutes (§§ 1005 and 1957) and that the two

men each committed overt acts in furtherance of that conspiracy. In particular,

Ms. Gurney testified that Mr. Weidner directed her to complete the April 27, 2001

loan proposal, and it is undisputed that the proposal omits any reference to the

line of credit increase being used to fund a loan from Mr. Wittig to Mr. Weidner.

Moreover, on the same day it was deposited into Mr. Wittig’s account, the $1.5

million was transferred to the Arizona project in which Mr. Weidner wanted to

invest. Additionally, Mr. Weidner acknowledged that his responses to the

officer’s questionnaire and his personal financial statement made no reference to

the $ 1.5 million loan from Mr. Wittig.

-27-
 We therefore reject Mr. Weidner’s sufficiency of the evidence challenge to

his § 371 conspiracy conviction.

B. Sufficiency of Evidence Supporting § 1005 Bank Fraud Convictions

Both Mr. Wittig and Mr. Weidner challenge their § 1005 bank fraud

convictions. In order to establish a violation of § 1005, the government must

establish beyond a reasonable doubt that: “(1) an entry made in bank records is

false; (2) the defendant made the entry or caused it to be made; (3) the defendant

knew the entry was false at the time he . . . made it; and (4) the defendant

intended that the entry injure or defraud the bank or public officers.” United

States v. Chaney, 964 F.2d 437, 448 (5th Cir. 1992). The Supreme Court has

described the aim of the statute as “giv[ing] assurance that upon an inspection of

a bank, public officers and others would discover in its books of account a picture

of its true condition.” United States v. Darby, 289 U.S. 224, 226 (1933); see also

United States v. Cordell, 912 F.2d 769, 773 (5th Cir. 1990) (citing Darby for the

same proposition).

Under § 1005, “an omission of material information qualifies as a false

entry.” Cordell, 912 F.2d at 773; see also United States v. Copple, 827 F.2d

1182, 1187 (8th Cir. 1987) (“[A]n omission where an honest entry would

otherwise be made can be a false entry for section 1005 purposes.”). “The entry

is rendered no less false simply because, through considerable effort and a piecing

-28-
together of minute details, the bank might have been able to discover the truth.”

United States v. Luke, 701 F.2d 1104, 1108 n.7 (4th Cir. 1983); see, e.g., Phillips

v. United States, 406 F.2d 599, 601 (10th Cir. 1969) (affirming a § 1005

conviction based upon nominee loans and loans to fictitious parties even though

microfilm bank records revealed the true nature of the transactions and stating

that “the fact that [an entry’s] falsity may be exposed by an examination of other

books of account, does not render it any less a false entry made with intent to

deceive” (internal quotation marks and citation omitted)). Additionally, the

defendant himself need not make the false entries in bank records; “it suffices

that he set in motion management actions that necessarily caused [bank personnel]

to make false entries.” United States v. Wolf, 820 F.2d 1499, 1504 (9th Cir.

1987).

With those principles in mind, we turn to each defendant’s challenge to the

§ 1005 convictions. As set forth above, there are four allegedly false entries at

issue: (1) the April 27, 2001 loan proposal stating that Mr. Wittig was requesting

a $1.5 million increase in his line of credit to renovate the Landon Mansion and

make business investments (count 2); (2) Mr. Weidner’s May 14, 2001 responses

to the FDIC’s questionnaire (count 3); (3) Mr. Weidner’s annual financial

statement, submitted to Capital City Bank on May 31, 2001 (count 4); and (4) Mr.

-29-
Wittig’s January 8, 2002 financial statement (count 5). These documents do not

contain any reference to a $1.5 million loan from Mr. Wittig to Mr. Weidner.

1. Mr. Wittig

a. application of § 1005 to bank customers

In challenging his § 1005 convictions, Mr. Wittig first invokes the Third

Circuit’s decision in United States v. Barel, 939 F.2d 26, 38-41 (3d Cir. 1991).

There, the court held that a defendant who had submitted false information about

his social security number in opening an account could not be prosecuted under

section 1005 because “the legislative history . . . shows that Congress intended

the statute to apply only to bank insiders or their accomplices.” Id. at 39

(emphasis added). The court also held that under the particular facts of the case,

the defendant could not be convicted under an aiding or abetting theory. See id.

at 42 (concluding that “[the defendant’s] acts causing bank employees to make

false entries in the bank’s books, although intentional in the general sense of the

word, were merely a byproduct of his specific intent to defraud his wife”).

Barel does not foreclose the government’s prosecution of Mr. Wittig for

violating § 1005 because, unlike the prosecution in that case, the government here

alleged (and the jury found) that Mr. Wittig conspired with a bank official to

make false bank entries in violation of the statute. Many courts, including this

one, have held that a bank customer may be convicted of violating § 1005, and

-30-
other federal bank fraud statutes, if he or she conspires with a bank official or

aids and abets the official’s violation of the statute. See, e.g., Phillips, 406 F.2d

at 601-02 (affirming a § 1005 conviction of a bank customer on the grounds that

he aided and abetted a bank president in making false entries); see also Copple,

827 F.2d at 1186 (affirming convictions of bank customers under § 1005 and

other federal bank fraud statutes and stating that “[the] [d]efendants have been

charged with aiding and abetting and conspiring with [a bank officer who] held a

position sufficient to trigger jurisdiction of the statutes specified in the

indictment”); Luke, 701 F.2d at 1108 (affirming bank customers’ convictions for

aiding, abetting and causing the making of a false entry in bank records, in

violation of 18 U.S.C. §§ 2 and 1005).

Thus, Mr. Wittig’s status as a bank customer did not bar his prosecution

under § 1005.

b. participation in conduct alleged in counts 2-4

Mr. Wittig directs another challenge at counts 2-4, which involve the April

27, 2001 loan proposal, Mr. Weidner’s May 14, 2001 response to the officer’s

questionnaire, and Mr. Weidner’s May 31, 2001 financial statement. He notes

that these documents were prepared by Mr. Weidner and Ms. Gurney, and he

contends that there was no evidence that he aided and abetted in the preparation

and submission of these documents.

-31-
 As we have observed above, in order to convict a defendant of a violation

of § 1005, the government is not required to prove that the defendant made the

false bank entries himself. See Wolf, 820 F.2d at 1504. A defendant may be

convicted of a § 1005 charge if he or she conspires with or aids and abets a bank

official’s making of a false entry. See, e.g., Copple, 827 F.2d at 1186; Phillips,

406 F.2d at 601-02. Here, the evidence we have discussed in addressing Mr.

Wittig’s challenge to the conspiracy convictions provides sufficient support for

the § 1005 convictions alleged in counts 2-4. The loan proposal, questionnaire

responses, and personal financial statement addressed in those counts all failed to

disclose the loan from Mr. Wittig to Mr. Weidner. Based on those omissions, a

jury could reasonably conclude that the submission of each document was an

overt act committed in furtherance of the conspiracy charged in count 1. Because

the evidence is sufficient to support the conclusion that Mr. Wittig was a member

of that conspiracy, a jury could properly convict him for the submission of the

documents addressed in counts 2-4, even though he did not personally prepare

those documents. See United States v. Russell, 963 F.2d 1320, 1322 (10th Cir.

1992) ( “During the existence of a conspiracy, each member of the conspiracy is

legally responsible for the crimes of fellow conspirators . . . that are committed

in furtherance of the conspiracy.”) (citing Pinkerton v. United States, 328 U.S.

640, 646-49 (1946)).

-32-
 c. statements alleged in count 2

Mr. Wittig also argues that, contrary to the allegations of count 2, the

statements in the April 27, 2001 loan proposal were not false. He observes that

the loan proposal stated one of the purposes of the $1.5 million increase in his

line of credit was to “make business investments.” Wittig App. at 524.

According to Mr. Wittig, his $1.5 million loan to Mr. Weidner, on which he

charged 7 percent interest, was such a “business investment,” and thus the loan

proposal did not contain a false statement.

But the policy underlying § 1005 is to ensure that an inspection of the

bank’s books will yield an accurate picture of its condition. Darby, 289 U.S. at

226; Cordell, 912 F.2d at 773. As a result, a material omission from a document

may constitute a false entry. Cordell, 912 F.2d at 773 (stating that “an omission

of material information relating to matters which should be disclosed in order to

show a true picture of the transactions involved, as well as an actual

misstatement, qualifies as a false entry under the statute”). Here, even though, in

broad terms, one could arguably characterize Mr. Wittig’s loan to Mr. Weidner as

a “business investment,” the proposal addressed in count 2 omitted a key material

fact about the requested line of credit increase for Mr. Wittig–that it was really

for Mr. Weidner, who wanted to use it for an investment that Mr. Wittig had

-33-
expressly turned down. Thus, the government presented sufficient evidence of a

false entry under § 1005.

d. count 5

Mr. Wittig addresses another sufficiency-of-the-evidence challenge directly

at count 5, which concerns his January 8, 2002 financial statement. He argues

that, for two reasons, the government failed to prove that he submitted that

document with the intent to defraud the bank and that the evidence is therefore

insufficient to support this particular § 1005 count.

First, Mr. Wittig observes, Mr. Weidner already knew about the $1.5

million loan he had received from Mr. Wittig. Thus, Mr. Wittig argues, the

omission of that loan from Mr. Wittig’s own financial statement merely

demonstrates that he failed to disclose information that would have been pointless

to disclose. Second, Mr. Wittig contends that when he submitted the financial

statement, Ms. Gurney had already told the bank’s chief lending officer about the

loan to Mr. Weidner.

Again, we are not persuaded. Congress passed § 1005 to protect the

integrity of the bank’s records. See Darby, 289 U.S. at 226; Cordell, 912 F.2d at

773. Thus, the fact that a particular bank official, like Mr. Weidner, is aware of

certain information not disclosed in a document does not foreclose a finding of

the necessary intent to defraud. See Chaney, 964 F.2d at 449 (stating that “[t]he

-34-
government need not prove intent to cause the bank injury; all that is required

[under § 1005] is that the defendant intended to defraud one or more of the bank’s

officers, auditors, examiners, or agents” (emphasis added)). As to the fact that

Ms. Gurney had disclosed the Wittig/Weidner loan to the bank’s chief lending

officer three months before Mr. Wittig filed his financial statement, we have

previously noted that there is no evidence that Mr. Wittig himself knew about that

disclosure. Thus, despite Ms. Gurney’s disclosure, the jury could still have

reasonably concluded that Mr. Wittig’s failure to list the loan demonstrated the

intend to defraud necessary to support his § 1005 conviction as to count 5.

2. Mr. Weidner

Mr. Weidner challenges his convictions for the § 1005 violations alleged in

counts 2 and 5—the April 27, 2001 loan proposal and Mr. Wittig’s January 8,

2002 financial statement. He invokes his own testimony that he believed that the

funds for the Arizona investment were to come from funds other than those in Mr.

Wittig’s Capital City accounts. That belief, he contends, demonstrates that he

lacked an intent to defraud. Then, as to count 2, Mr. Weidner advances the same

argument as Mr. Wittig—that it was proper to describe the purpose of the initial

loan as “business investments.” Wittig App. at 524.

Neither argument has merit. Even though Mr. Weidner testified that he did

not intend to use Mr. Wittig’s $1.5 million line of credit increase as the funding

-35-
for the Arizona real estate investment, the jury was not required to believe him.

As the district court explained, there was sufficient circumstantial evidence from

which a reasonable juror could conclude that Mr. Weidner and Mr. Wittig did

intend to use the $1.5 million line of credit increase for Mr. Weidner’s real estate

investment. In particular, the $1.5 million was deposited in Mr. Wittig’s account

and then on the same day transferred to the Arizona title company managing the

real estate transactions in which Mr. Weidner wanted to invest. There is no

indication that Mr. Wittig objected to that transfer, and, on the following day, Mr.

Weidner signed a promissory note obligating him to pay $1.5 million plus interest

to Mr. Wittig.

As to the fact that the April 27, 2001 loan proposal referred to “business

investments,” id., we have already noted that, despite the use of that phrase, the

failure to disclose that Mr. Weidner was the real borrower supports the jury’s

finding that Mr. Wittig possessed the necessary intent to defraud. The same is

true of Mr. Weidner.

We therefore conclude that the evidence is sufficient to support Mr.

Weidner’s § 1005 convictions alleged in counts 2 and 5.

C. Sufficiency of Evidence Supporting § 1957 Money Laundering Convictions

Mr. Wittig and Mr. Weidner also challenge the sufficiency of the evidence

supporting their money laundering convictions under 18 U.S.C. § 1957. Section

-36-
1957(a) prohibits “knowingly engag[ing] . . . in a monetary transaction in

criminally derived property [that] is derived from specified unlawful activity.”

To establish a violation of § 1957, the government must prove that the defendant

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

criminally-derived property, (4) knowing that the property was derived from

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

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

“In a prosecution for an offense under this section, the Government is not

required to prove the defendant knew that the offense from which the criminally

derived property was derived was specified unlawful activity.” 18 U.S.C. §

1957(c). In other words, “[t]he knowledge element of the offense requires that

the defendant know that the property in question is ‘criminally derived,’ although

it does not require knowledge that the property was derived from ‘specified

unlawful activity.’” United States v. Allen, 129 F.3d 1159, 1164 (10th Cir. 1997)

(quoting United States v. Pettigrew, 77 F.3d 1500, 1513 (5th Cir. 1996)).

1. Mr. Wittig

Mr. Wittig’s § 1957 money laundering conviction is based upon the wire

transfer of funds from his Capital City account to the Arizona title company on

April 30, 2001. In challenging the evidence supporting this conviction, Mr.

Wittig advances arguments similar to those he offers in attacking his § 371

-37-
conspiracy conviction. Mr. Wittig argues that these funds were not “criminally

derived” and that, in the alternative, there is no evidence that he knew that the

funds were criminally derived.

We are not persuaded by Mr. Wittig’s contentions. As the government

notes, the evidence supporting the § 371 conspiracy and § 1005 convictions also

supports the money laundering conviction. Because a jury could reasonably

conclude that Mr. Wittig concealed the purpose of the line of credit increase he

obtained from the bank, a jury could also conclude that the funds that were

transferred by Mr. Wittig on April 30, 2001 were criminally derived.

Accordingly, the evidence is sufficient to support Mr. Wittig’s § 1957 money

laundering conviction.

2. Mr. Weidner

Mr. Weidner also challenges his § 1957 money laundering conviction. His

argument here is dependent on his challenge to the § 371 conspiracy conviction

and to the § 1005 conviction alleged in count 2. In particular, Mr. Weidner notes

that a money laundering conviction requires an underlying criminal activity.

Here, he contends, there was no underlying crime because there was no evidence

from which a jury could conclude that, at the time the $1.5 million was

transferred to the Arizona title company, he intended to conceal from bank

officials the loan that he had obtained from Mr. Wittig.

-38-
 Mr. Weidner’s challenge lacks merit. Ms. Gurney testified that it was Mr.

Weidner who instructed her how to complete the April 27, 2001 loan proposal.

That proposal did not disclose that the $1.5 million increase in Mr. Wittig’s line

of credit was intended for Mr. Weidner’s real estate investment in Arizona.

Moreover, the $1.5 million that Mr. Wittig loaned to Mr. Weidner was not

transferred directly to Mr. Weidner but instead was routed to the Arizona title

company managing the transaction in which Mr. Weidner wanted to invest. Ms.

Gurney testified that she did not make that transfer and that Mr. Weidner had the

authority and the ability to make such a wire transfer himself. From the manner

in which the $1.5 million was transferred from Mr. Wittig’s account to Mr.

Weidner’s Arizona real estate investment, the jury could conclude that Mr.

Weidner intended to conceal from bank officials that he was the real borrower of

the $1.5 million advanced by Capital City Bank. Thus, the evidence was

sufficient to support the jury’s finding that Mr. Weidner knowingly engaged in a

transaction involving criminally derived property in violation of § 1957.

D. Evidence of Mr. Wittig’s Wealth and Executive Employment Agreement

Mr. Wittig challenges the district court’s admission of exhibits 31 and 52,

arguing that they were unduly prejudicial and that, as a result, he is entitled to a

-39-
new trial. “We review a district court’s evidentiary rulings for abuse of

discretion.” United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003).

Under that standard, “a trial court’s decision will not be disturbed unless

the appellate court has a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir.

1991) (internal quotation marks omitted). Our deference to the trial court is based

upon its first-hand ability to view the witnesses and evidence and assess

credibility and probative value. Id. at 1554. “An abuse of discretion occurs when

the district court’s decision is arbitrary, capricious, or whimsical, or results in a

manifestly unreasonable judgment.” Moothart v. Bell, 21 F.3d 1499, 1504-05

(10th Cir. 1994) (internal quotation marks omitted). Even “[i]f we find error in

the admission of evidence, we will set aside a jury verdict only if the error

prejudicially affects a substantial right of a party.” Coletti v. Cudd Pressure

Control, 165 F.3d 767, 776 (10th Cir. 1999) (internal quotation marks omitted).

The first document to which Mr. Wittig objects, exhibit 31, is an

employment agreement between Western Resources and Mr. Wittig, dated

September 19, 2000. At trial, the government contended that this agreement

demonstrated that Mr. Wittig would greatly benefit from the creation of a new

utility company and that, because Mr. Wittig was seeking funding from Mr.

-40-
Weidner’s bank, the agreement supplied a motive for Mr. Wittig’s allowing his

line of credit to be used to provide the $1.5 million loan to Mr. Weidner.

The second document at issue, exhibit 51, is an overview of the benefits

that would flow to executives in the new utility company. The government

contended at trial that the document indicated that Mr. Wittig would receive

between $37 million and $64 million. Again, the government asserted that the

opportunity available to Mr. Wittig to receive these substantial sums explained

why Mr. Wittig declined to invest in the Arizona real estate project himself and

opted instead to curry favor with Mr. Weidner, whose bank would be able to

finance the creation of the lucrative new utility company.

Mr. Wittig contends that both documents were irrelevant and prejudicial.

According to Mr. Wittig, the government “trumpeted these documents in an

attempt to prejudice the jury with arguments about a potential multimillion dollar

payout scenario, bonuses, stock options, and split-dollar life insurance, as well as

the value of the Wittigs’ extensively renovated home in Topeka and a New York

apartment they maintained.” Wittig’s Br. at 30.

Mr. Wittig further contends that the government failed to establish that he

needed Mr. Weidner’s assistance in obtaining financing for the new utility

company. He points to evidence that the new utility company had great profit

potential for the bank and that, as a result, Mr. Wittig did not need Mr. Weidner’s

-41-
help in obtaining the financing. Moreover, he notes, any decision with respect to

the financing at issue would have been referred to a committee because Mr.

Weidner lacked the authority to personally approve it. Finally, Mr. Wittig

observes that the proposed transaction creating the new utility never came to

fruition.

To a degree, Mr. Wittig’s points are well-taken. The government’s quid

pro quo theory involved a substantial amount of speculation and in fact was

unnecessary to prove the counts against Mr. Wittig, which involved the loan to

Mr. Weidner, not the creation of the new utility. Cf. Shively, 715 F.2d at 266

(noting, in a prosecution for conspiracy to misapply bank funds in violation of 18

U.S.C. §§ 371, 656, and 1014, that the motivation of a customer in loaning money

to a bank official was irrelevant—“whether he did so out of pure friendship, or, as

is more likely, to ingratiate himself with the officer of a bank with which he did

business”). Moreover, even without the evidence of the potential benefits from

the new utility company, the government introduced evidence that Mr. Wittig was

benefitting from the loan to Mr. Weidner: Mr. Weidner was paying Mr. Wittig a

higher interest rate than Mr. Wittig was paying the bank.

Nevertheless, we cannot conclude that the district court abused its

discretion in admitting this evidence. The evidence of the lucrative benefits from

the new utility company was of some relevance: it did indicate that Mr. Wittig

-42-
had an interest in cultivating a good relationship with Mr. Weidner. The evidence

invoked by Mr. Wittig does not foreclose the government’s allegation that Mr.

Wittig sought to cultivate Mr. Weidner’s good will and that one way of obtaining

that good will was to loan Mr. Weidner the $1.5 million. Moreover, Mr. Wittig

has not established the necessary prejudice to warrant reversal of his conviction.

See Coletti, 165 F.3d at 776 (noting “[i]f [this court] find[s] error in the

admission of evidence, [it] will set aside a jury verdict only if the error

prejudicially affects a substantial right of a party” (internal quotation marks

omitted)).

E. Jury Instruction Errors Alleged by Mr. Wittig

Mr. Wittig challenges the district court’s jury instructions on three grounds.

We review a district court’s decision to give a particular jury instruction for an

abuse of discretion. Osteguin v. S. Pac. Transp. Co. , 144 F.3d 1293, 1295 (10th

Cir. 1998). However, we review de novo whether, considering the instructions as

a whole, the jury was misled. Wilson v. Muckala , 303 F.3d 1207, 1214 (10th Cir.

2002). “In reviewing such allegations, this court examines the record as a whole

to determine whether the instructions state the applicable law and provide the jury

with an appropriate understanding of the issues and the legal standards to apply.”

Faulkner v. Super Valu Stores , 3 F.3d 1419, 1424 (10th Cir. 1993).

-43-
1. Allowing a Bank Customer to Be Convicted of a § 1005 Violation

Mr. Wittig argues that the jury instructions allowed him to be convicted of

the § 1005 violations based on a finding that he acted alone, solely as a bank

customer. Again invoking the Third Circuit’s decision in Barel, he maintains that

the statute does not authorize prosecutions based on such a theory. Although Mr.

Wittig acknowledges that the jury was also instructed that he could be convicted

of the § 1005 violations on an aiding and abetting or a conspiracy theory, he

contends that one cannot determine whether the jury relied on these theories or on

the theory that he acted alone as a bank customer.

Mr. Wittig’s challenge is based on the Supreme Court’s decision in Yates v.

United States, 354 U.S. 298 (1957), overruled on other grounds by Burks v.

United States, 437 U.S. 1 (1978). In Yates, the Court held that a verdict must be

set aside “where the verdict is supportable on one ground, but not on another, and

it is impossible to tell which ground the jury selected.” Id. at 312. In a

subsequent decision, the Court limited that holding to instances in which one of

the possible bases of conviction was legally insufficient as opposed to factually

insufficient. See Griffin v. United States, 502 U.S. 46, 58-59 (1991) (discussing

Yates).

Here, even assuming that Mr. Wittig is correct in arguing that a bank

customer cannot be prosecuted for a direct violation of § 1005, he has not

-44-
established that his § 1005 convictions are invalid. The jury was also instructed

that Mr. Wittig could be liable for violating § 1005 as an aider or abettor or as a

conspirator, and from a review of the instructions, evidence, and arguments of

counsel, it is clear that it the jury relied on those theories in convicting Mr. Wittig

of the § 1005 violations.

In particular, as to counts 2-4, the government, as Mr. Wittig himself

contends, offered no evidence that Mr. Wittig submitted the documents at issue

(the loan proposal, the questionnaire responses, and Mr. Weidner’s financial

statement). Thus, the only basis on which the jury could have found Mr. Wittig

responsible for these violations was on an aiding and abetting or conspiracy

theory.

As to count 5, the government alleged that Mr. Wittig’s submission of his

January 8, 2002 financial statement was an overt act carried out in furtherance of

the conspiracy. The fact that the jury convicted Mr. Weidner on that count

demonstrates that it found that Mr. Wittig’s overt act of submitting his own

financial statement was done in furtherance of the conspiracy. There was no

evidence that Mr. Weidner was involved in the preparation and submission of that

document, and so a conspiracy theory is the only theory on which the jury could

have relied in convicting Mr. Weidner of that count. Because the jury necessarily

found that Mr. Wittig’s submission of his own financial statement was done in

-45-
furtherance of the conspiracy, there is no risk that the jury relied solely on the

allegedly invalid theory that Mr. Wittig committed the violation alleged in count 5

by acting alone as a bank customer. See United States v. Hudgins, 120 F.3d 483,

488 n.3 (4th Cir. 1997) (noting that Yates “requires reversal only where it is

impossible to tell that the bad ground was not the sole basis for the verdict”

(emphasis added) (internal quotation marks omitted)).

2. Instructing on Pinkerton Conspiracy Theory

Mr. Wittig next challenges the district court’s Pinkerton instruction insofar

as it concerned count 5, the § 1005 false bank entry charge that addresses Mr.

Wittig’s submission of his own financial statement on January 8, 2002. Mr.

Wittig argues that, as to that count, no conduct by Mr. Weidner was charged or

argued. As a result, Mr. Wittig contends, the district court’s Pinkerton instruction

improperly allowed Mr. Wittig to be convicted for the conduct of a bank official.

Mr. Wittig’s § 1005 conviction under count 5 was not based upon the

Pinkerton doctrine. That doctrine provides that one conspirator can be found

guilty of crimes committed by another conspirator in furtherance of the

conspiracy. See Russell, 963 F.2d at 1322. Here, it was Mr. Wittig, not his co-

conspirator, who committed the act alleged in count 5 by submitting his own

financial statement. As we have noted, bank customers who conspire or aid and

abet bank officials may be convicted under § 1005. See, e.g., Copple, 827 F.2d at

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1186; Luke, 701 F.2d at 1108; Phillips, 406 F.2d at 601-02. Thus, there is no

instructional error here.

3. Refusal to Give Instruction Regarding Third Party Loans

In a final challenge to the jury instructions, Mr. Wittig argues that the

district court erred in refusing to give an instruction stating that “nominee loans”

(loans on behalf of a third person) are not per se illegal.

We discern no grounds for reversal here. Viewed as a whole, the

instructions properly focused the jury on the key issue–whether Mr. Wittig and

Mr. Weidner misled Capital City Bank officials. As the government persuasively

argues, to have given the jury a simple instruction that nominee loans are not per

se illegal would have been an incomplete statement of the law: nominee loans are

illegal when the borrower and bank officer make false statements or omit material

information in order to obtain the funds. Whether the defendants made such

statements and omitted such information was the issue contested here, and Mr.

Wittig’s per se instruction was not necessary to inform the jury of the relevant

legal principles.

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 F. Allocation of Loan Proceeds in Determining Amount of Loss

1. Mr. Wittig’s challenge

In the first of his challenges to his sentence, Mr. Wittig argues that the

district court erred in applying the “gross receipts” provision of the Guidelines in

determining the amount of loss and arriving at an offense level. His argument

concerns the proper interpretation of the Guidelines, and we therefore engage in

de novo review. United States v. Brown , 314 F.3d 1216, 1222 (10th Cir. 2003).

USSG § 2B1.1(b)(12) provides that:

(Apply the greater) If—

(A) the defendant derived more than $1,000,000 in gross
receipts from one or more financial institutions as a
result of the offense, increase by 2 levels;

(B) the offense substantially jeopardized the safety and
soundness of a financial institution, increase by 4
levels.

If the resulting offense level determined under subdivision (A) or
(B) is less than level 24, increase to level 24.

The commentary to the Guidelines provides a definition of “gross receipts”:

Gross Receipts Enhancement Under Section (b)(12)(A)

(A) In General -For purposes of subsection (b)(12)(A),
the defendant shall be considered to have derived
more than $1,000,000 in gross receipts if the gross
receipts to the defendant individually, rather than to
all participants, exceeded $1,000,000.

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 (B) Definition-“Gross receipts from the offense”
includes all property, real or personal, tangible or
intangible, which is obtained directly or indirectly
as a result of such offense. See 18 U.S.C. §
982(a)(4). 1

USSG § 2B1.1 cmt. n.9 (2001) (emphasis added).

At sentencing, the district court relied on § 2B1.1(b)(12) to conclude that,

by receiving the $1.5 million increase in his line of credit before the funds were

transferred to Mr. Weidner’s real estate investment in Arizona, Mr. Wittig

received gross receipts of more than $1 million.

Mr. Wittig now contends that the district court erred because it also

attributed the same $1.5 million in receipts to Mr. Weidner. This double

attribution, Mr. Wittig maintains, is inconsistent with the principle set forth in the

Guideline commentary that, in order for the enhancement to level 24 to apply,

“the gross receipts to the defendant individually, rather than to all participants,

exceeded $1,000,000.” Id.

Mr. Wittig invokes a line of cases applying this Guideline provision and

concluding that “no part of the amount found to have been derived by one

defendant can be counted as having been derived by another defendant.” United

States v. Kohli, 110 F.3d 1475, 1477 (9th Cir. 1997); see also United States v.

Castellano, 349 F.3d 483, 486 (7th Cir. 2003) (applying § 2B1.1(b)(12) and

1
That statute contains the same definition of “gross receipts.”

-49-
concluding that the defendant must receive proceeds “individually”); United

States v. Nesenblatt, 171 F.3d 1227, 1229-30 (9th Cir. 1999) (same); United

States v. Millar, 79 F.3d 338, 346 (2d Cir. 1996) (remanding “for factual findings

to establish the amount of gross receipts [that the defendant] derived

individually--not jointly”).

In response, the government invokes a Third Circuit decision stating that “it

is irrelevant how [the defendant] spent the money [i.e., “the gross receipts”] of

the offense, once he obtained it.” United States v. Bennett, 161 F.3d 171, 193 (3d

Cir. 1998). Thus, the government’s position is that Mr. Wittig himself received

more than $1 million in gross receipts of the offense, and that the fact that Mr.

Wittig chose to loan this money to Mr. Weidner is irrelevant.

In our view, the various decisions cited by Mr. Wittig and the government

are distinguishable from the instant case in important respects. The decisions

upon which Mr. Wittig relies do indicate that the same receipts cannot be counted

against more than one defendant. However, unlike this case against Mr. Wittig

and Mr. Weidner, none of these cases involved a series of offenses in which each

defendant successively used the receipts in a separate fashion (with one

defendant, Mr. Wittig, obtaining money from a bank and then earning interest by

loaning that money to his codefendant Mr. Weidner, and the codefendant, Mr.

Weidner, using the proceeds of the loan to profit from a real estate investment).

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 Conversely, the Third Circuit decision on which the government relies does

not involve the attribution of the same receipts to codefendants or to the

defendant and another person who somehow participated in the criminal scheme.

In Bennett, the defendant argued that he did not receive certain receipts of the

offense of conviction “because he subsequently transferred much of the money to

consultants and others who did work for [his company].” Id. In rejecting that

argument, the Third Circuit did state that “it is irrelevant how [the defendant]

spent the money after he obtained it.” Id. However, there is no indication in the

Third Circuit’s opinion that the individuals to whom the defendant transferred the

receipts were codefendants or otherwise participated in the criminal scheme.

Thus, Bennett does not offer the government a way around the Guideline language

stating that the sentencing court may consider “gross receipts to the defendant

individually, rather than to all participants.” USSG § 2B1.1 cmt. n.9 (2001)

(emphasis added).

In light of the ambiguity of the Guideline language, the lack of case law

resolving the issue of how to attribute receipts in these circumstances, and the

lack of a persuasive argument from the government, we conclude that the district

court erred in attributing the $1.5 million in gross receipts to both Mr. Wittig and

Mr. Weidner. See Castellano, 349 F.3d at 486 (discussing § USSG 2B1.1(b)(12)

and stating that “[n]othing in the Sentencing Guidelines specifies what it means to

-51-
receive proceeds ‘individually’”); United States v. Gay, 240 F.3d 1222, 1232

(10th Cir. 2001) (“The rule of lenity requires courts to interpret ambiguous

statutes, including the Sentencing Guidelines, in favor of criminal defendants.”). 2

Prior to the Supreme Court’s decision in Booker, our conclusion that a

Guideline provision was ambiguous required us to remand with instructions to

follow the interpretation of the Guidelines that would produce the lesser sentence.

See United States v. Bazile, 209 F.3d 1205, 1207 (10th Cir. 2001). Post- Booker,

however, our approach is somewhat different. In particular, after Booker , the

district courts are “[r]elieved of the mandatory application of the guidelines” and

“are now permitted to give more sway in sentencing to the factors enumerated in

18 U.S.C. § 3553(a).” United States v. Resendiz-Patino , 420 F.3d 1177, 1184 n.6

(10th Cir. 2005).

The § 3553(a) factors include “the nature and circumstances of the

offense.” 18 U.S.C. § 3553(a)(1). In our view, the circumstances of these

offenses include those noted by the government here—that Mr. Wittig and Mr.

Weidner each used the $1.5 million from the line of credit increase in different

2
In its appellate brief, the government also argues that Mr. Wittig obtained
additional gross receipts from the offenses. The government cites interest on the
promissory note from Mr. Weidner (more than $90,000) as well as the two
additional $500,000 increases in his line of credit that Mr. Wittig obtained in May
and June 2001. See Aple’s Br. at 43. However, the district court did not rely on
these transactions in determining the amount of gross receipts received by Mr.
Wittig, and we decline to consider these transactions for the first time on appeal.

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ways and derived some benefit from it. Thus, the district court may properly

consider this aspect o f the offenses in resentencing under the post-Booker regime.

2. Mr. Weidner’s challenge

Mr. Weidner makes only a cursory challenge to the gross receipts

enhancement of his sentence. He argues that because the loan from Mr. Wittig

arose out of “a legitimate borrower/lender relationship,” Wittig’s Br. at 33, the

$1.5 million was obtained from Mr. Wittig and not from “a financial institution,”

as required by USSG § 2B1.1(b)(12).

This argument merely restates Mr. Weidner’s challenge to the sufficiency

of the evidence. As we have noted, there was ample evidence from which the

district court could conclude that the $1.5 million transferred to Mr. Weidner’s

Arizona real estate investment was funded by the $1.5 million increase in Mr.

Wittig’s line of credit. Thus, the district court properly concluded that the $1.5

million was obtained from a financial institution.

G. Significance of Collateral in Determining Amount of Loss

Mr. Wittig and Mr. Weidner also challenge the district court’s

determination of the amount of loss under an intended loss theory. They invoke

the commentary to USSG § 2B1.1, which defines “[i]ntended loss” as:

(I) . . . the pecuniary harm that was intended to result from
the offense; and (II) includes intended pecuniary harm that

-53-
 would have been impossible or unlikely to occur ( e.g. , as
in a government sting operation, or an insurance fraud in
which the claim exceeded the insured value).

USSG § 2B1.1 cmt. n.2(A)(ii) (2001).

Here, the district court found that both defendants intended a loss of $1.5

million. In reaching this conclusion, the court did not consider the value of the

collateral that Mr. Wittig had pledged to secure his line of credit. The court

reasoned that, when he had obtained the $1.5 million increase on April 30, 2001,

Mr. Wittig had pledged no new collateral, and that even considering the collateral

that he had previously pledged for the line of credit, the amount was still below

the loan-to-value ratio required by the bank. See Wittig App. at 2639-40;

Weidner App. at 622.

Mr. Wittig and Mr. Weidner contend that the district court erred by not

considering the fact that Mr. Wittig provided adequate collateral for the $1.5

million increase in his line of credit. They note that this circuit “has . . . required

that the value of security given for a loan be taken into account in determining

intended loss.” United States v. Schild, 269 F.3d 1198, 1201 (10th Cir. 2001);

see also United States v. Nichols, 229 F.3d 975, 980 (10th Cir. 2000) (“The

security of [a] loan is a valid consideration in evaluating a defendant’s realistic

intent and the probability of inflicting the loss.”). In response, the government

has chosen not to argue in support of the district court’s disregard of the collateral

-54-
provided by Mr. Wittig, instead arguing only that the amount of loss

determination is proper under the gross receipts approach that we have addressed

above.

From a review of the record, we conclude that the district court did not

adequately consider the amount of collateral provided by Mr. Wittig in

determining the amount of loss under an intended loss theory. Although there are

instances in which a district court may ignore collateral in determining intended

loss, the court must first determine that the defendant intended to deprive the

lender of its collateral. See United States v. Williams, 292 F.3d 681, 686 (10th

Cir. 2002) (stating that “we have upheld a finding of intended loss of an entire

loan amount where the record indicated the defendant intended to permanently

deprive the lender of security by concealing pledged collateral”).

The district court did not make such findings. The facts noted by the

district court—that Mr. Wittig provided no new collateral for the $1.5 million

increase in his line of credit and that amount of collateral provided did not

comport with the bank’s rules—might justify the disregard of some of the

collateral pledged. However, absent further explanation and findings, we cannot

see how those facts justify a disregard of all the collateral pledged by Mr. Wittig

in calculating the amount of intended loss.

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 Accordingly, we conclude that the district court also erred in calculating

the amount of loss under the intended loss approach.

H. Booker Error

Mr. Wittig and Mr. Weidner both argue that their sentences are invalid

under Booker. Because we have already concluded that the district court erred in

applying the gross receipts and intended loss provisions of the Guidelines, we

need not address this contention as to Mr. Wittig. See United States v. Cano-

Silva, 402 F.3d 1031, 1039 (10th Cir. 2005) (stating that “we need not address

any issues related to . . . Booker since we have already determined that the case

must be remanded for resentencing”). Mr. Wittig is entitled to resentencing under

the post-Booker regime. See Williams v. United States, 503 U.S. 193, 203 (1992)

(stating that “once the court of appeals has decided that the district court

misapplied the Guidelines, a remand is appropriate unless the reviewing court

concludes, on the record as a whole, that the error was harmless”).

However, unlike Mr. Wittig, Mr. Weidner has not argued that the district

court erred in attributing the $1.5 million to both defendants under the gross

receipts theory of calculating the offense level. As the district court and the

government have observed, the gross receipts theory provided an alternative to the

intended loss approach in determining Mr. Weidner’s base offense level. Thus,

-56-
lacking a convincing challenge from Mr. Weidner to the district court’s gross

receipts determination, we must address his Booker claim.

Because Mr. Weidner did not raise this claim before the district court, he is

only entitled to resentencing if he establishes that the mandatory application of

the Guidelines was plain error. See Dazey, 403 F.3d at 1173. To establish plain

error, Mr. Weidner must demonstrate that the district court (1) committed error,

(2) that was plain, and (3) that affected his substantial rights. United States v.

Cotton, 535 U.S. 625, 631 (2002); Dazey, 403 F.3d at 1174. If he makes this

showing, then we must proceed to a fourth inquiry, asking whether the error

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

proceedings. Cotton, 535 U.S. at 631-32; Dazey, 403 F.3d at 1174.

Our post-Booker cases have distinguished between constitutional and non-

constitutional Booker error. See United States v. Gonzalez-Huerta, 403 F.3d 727,

731-32 (10th Cir. 2005). Here, the error alleged by Mr. Weidner is constitutional:

the district court based its amount-of-loss determinations on facts not found by

the jury. See Dazey, 403 F.3d at 1174 (noting that the district court committed

constitutional Booker error because the sentencing judge relied on facts “found by

a preponderance of the evidence to increase [the defendant’s] sentence beyond the

maximum authorized by the facts established by the jury’s verdict”). Because the

-57-
error was constitutional, we apply a less stringent standard of plain error review.

Id.

The first two parts of the plain error inquiry merit only brief discussion.

The district court based Mr. Weidner’s sentence on facts not found by the jury

and therefore violated his Sixth Amendment rights under Booker. Thus, the court

committed plain error. See id. at 1174-75.

As to the third part of the inquiry, we conclude that Mr. Weidner has

established that the Booker error affected his substantial rights. The district

court’s finding as to the amount of loss was a key component of the sentencing

decision, resulting in an increase in the offense level from six to twenty-four.

Without the amount-of-loss findings, the Guideline range would have been six to

twelve months, rather than seventy-eight to ninety- seven months. See USSG Ch.

5, pt. A (Sentencing Table) (2001). Moreover, Mr. Weidner contested the

government’s allegations. Cf. Dazey, 403 F.3d at 1177 (noting that, at

sentencing, the defendant “strenuously contested the factual basis for the

sentencing enhancements” and concluding as a result that he had established a

reasonable probability of a different result absent the Booker error). Thus, there

is a reasonable probability that a jury (charged with applying the beyond-a-

reasonable-doubt standard to the determination of the amount of loss) would not

have found either that $1.5 million in gross receipts was attributable to both Mr.

-58-
Wittig and Mr. Weidner or that, as to each defendant, the intended loss was $1.5

million.

Finally, we conclude that Mr. Weidner has satisfied the fourth part of the

inquiry—that the error affected the integrity, fairness, or public reputation of the

proceedings. In Dazey, we set forth three justifications for exercising our

discretion to correct a Booker error: (1) the error was constitutional, “which

entails a less rigorous application of the plain error burden[;]” (2) “[the

defendant] vigorously contested the judge-found facts that enhanced his

sentence[;]” and (3) the judge-found facts substantially increased the defendant’s

sentence. Id. at 1178. As noted above, all three factors are present here. As in

Dazey, “allowing a substantial increase in [a defendant’s] sentence through the

now-suspect practice of mandatory enhancements, based on judge-found facts,

runs the risk of impugning the integrity and reputation of judicial proceedings.”

Id. at 1179.

Accordingly, we conclude that the plain error here warrants the exercise of

our discretion to remand Mr. Weidner’s case for resentencing under the post-

Booker sentencing regime.

III. CONCLUSION

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 We AFFIRM the convictions of Mr. Wittig and Mr. Weidner. However, for

the reasons set forth in this opinion, we VACATE the sentences of both

defendants and REMAND the cases to the district court for resentencing in

accordance with this opinion and with Booker.

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