PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-4490
PHILLIP WINDOM OFFILL, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Liam O’Grady, District Judge.
(1:09-cr-00134-LO-1)
Argued: September 23, 2011
Decided: December 6, 2011
Before TRAXLER, Chief Judge, and WILKINSON and
NIEMEYER, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Wilkinson
joined.
COUNSEL
ARGUED: George Kostolampros, VENABLE, LLP, Wash-
ington, D.C., for Appellant. Patrick Friel Stokes, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
2 UNITED STATES v. OFFILL
for Appellee. ON BRIEF: Ronald M. Jacobs, Stephen H.
Swart, VENABLE, LLP, Washington, D.C.; Michael S.
Nachmanoff, Federal Public Defender, Kevin R. Brehm,
Assistant Federal Public Defender, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Alexandria, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, David
B. Goodhand, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia;
Lanny A. Breuer, Assistant Attorney General, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
OPINION
NIEMEYER, Circuit Judge:
A jury convicted Phillip Offill on one count of conspiracy
to commit securities registration violations, securities fraud,
and wire fraud, in violation of 18 U.S.C. § 371, and nine
counts of wire fraud, in violation of 18 U.S.C. § 1343. The
indictment alleged that Offill had participated in a "pump and
dump" securities scheme, which was designed to evade secur-
ities registration requirements, artificially inflate the value of
securities, and then realize a gain by selling them at the
inflated value to the public. The district court sentenced Offill
to 96 months’ imprisonment, a downward variance sentence.
On appeal, Offill contends that the district court erred dur-
ing trial by (1) admitting opinion testimony of two experts
and two lay witnesses for the government; (2) denying his
request for a multiple conspiracy instruction; and (3) admit-
ting evidence of subsequent acts not charged in the indict-
ment. Offill also challenges the reasonableness of his
sentence, arguing, among other things, that the district court
impermissibly imputed to him the gain resulting from the
entire conspiracy when calculating the applicable offense
level under U.S.S.G. § 2B1.1.
UNITED STATES v. OFFILL 3
For the reasons that follow, we affirm.
I
In March 2004 David Stocker, a securities lawyer in Phoe-
nix, Arizona, retained Phillip Offill, a lawyer and securities
specialist who had earlier worked for the Securities and
Exchange Commission, to advise him on how to issue free
trading (unrestricted) stock without the need of filing a regis-
tration statement. Stocker represented "penny-stock" compa-
nies for whom the securities registration process was too
costly. Offill explained to Stocker that he could use Rule 504
of Regulation D of the Securities Act of 1933 and an analo-
gous Texas state law, Texas Administrative Code ("TAC")
§ 139.19, to create free-trading stock and avoid any require-
ment of registration. More specifically, Offill advised Stocker
that Rule 504 and TAC § 139.19 provided an exception to
registration requirements when the stock is sold to an "accred-
ited investor" who purchases the stock with "investment
intent." As Offill explained, an "accredited investor" was a
person with a net worth of $1 million or a business owned by
persons each with a net worth of $1 million, and "investment
intent" was generally demonstrated by holding a stock for a
period of at least one year.
Under the working arrangement between Stocker and
Offill, Offill orchestrated 51 stock issuances with Stocker dur-
ing the period from April through August 2004, and Offill,
through investment entities he controlled, served as the initial
"accredited investor" in those transactions. Stocker and Offill
produced legal opinion letters and stock subscription agree-
ments for the transactions, asserting that the registration
exemptions of Rule 504 and TAC § 139.19 applied to the
transactions; that Offill, as an accredited investor, had paid for
the stock; that the entity that Offill controlled had purchased
the stock with "investment intent"; that Offill had no present
intention of selling the stock; and that the transactions were
not part of a "scheme or plan to evade registration require-
4 UNITED STATES v. OFFILL
ments." At Offill’s suggestion, Stocker included a statement
in his opinion letters noting that Stocker was not providing an
opinion as to the stock purchasers’ status as underwriters. For
each transaction, Offill also created documents permitting
Stocker to transfer the shares.
Offill received $2,500 as compensation for his work on
each of the 51 transactions, for a total of $127,500.
Many of the statements in the legal opinion letters and
stock subscription agreements were in fact untrue. With
respect to some of the stock issuances, Offill and Stocker
devised a "pump and dump" scheme designed to artificially
inflate stock prices and then sell the stock to the public for
gain. In connection with each of these stock issuances, as well
as other stock issuances, despite the representations in the
subscription agreements that Offill had purchased the stock
with investment intent, Offill in fact never paid for the stock.
Moreover, he allowed Stocker to transfer the shares to co-
conspirators within days of the initial issuance, for public sale
thereafter. Under the "pump and dump" scheme, after Offill
and Stocker distributed the stock to co-conspirators to create
a secondary market, other conspirators, serving as "promot-
ers," organized marketing campaigns to increase the value of
the shares through spam e-mail, press releases, and faxes that
contained false information about the issuing companies. The
conspirators also manipulated the price of the shares by coor-
dinating their trading activities to limit the supply of available
stock. Once the stock reached a sufficiently high price, the
conspirators "dumped" their shares by selling them to the
public, providing the conspirators with a gain of millions of
dollars. Some of the proceeds of these sales were deposited in
brokerage accounts associated with Offill.
In Count I of the indictment, Offill was charged with par-
ticipating in the illegal issuances of stock of nine companies:
Emerging Holdings, Inc. (one issuance), MassClick, Inc. (one
issuance); China Score, Inc. (one issuance); Ecogate, Inc. (one
UNITED STATES v. OFFILL 5
issuance); Media International Concepts, Inc. (one issuance);
Vanquish Productions, Inc. (one issuance); Custom Designed
Compressor Systems, Inc. (one issuance); Auction Mills, Inc.
(two issuances); and AVL Global, Inc. (two issuances). Count
I also charged Offill with conspiracy to artificially manipulate
the stock prices of Emerging Holdings, MassClick, and China
Score. The remaining nine counts charged Offill with com-
mitting wire fraud in connection with his role in the stock
issuance of Emerging Holdings.
Following trial, a jury found Offill guilty on all counts. The
district court sentenced Offill to 60 months’ imprisonment on
the conspiracy count and to 96 months’ imprisonment for
each of the wire fraud counts, all to run concurrently. The
court enhanced the sentences on the wire fraud counts under
U.S.S.G. § 2B1.1 because the conspiracy had gained more
than $1 million as a result of the illegal conduct. Although the
resulting Sentencing Guidelines range provided for 168 to 210
months’ imprisonment, the district court imposed a downward
variance sentence of 96 months’ imprisonment in order to
avoid creating too great a disparity between Offill’s sentence
and the sentences of some co-conspirators, who had cooper-
ated with the government.
This appeal followed.
II
Offill contends first that the district court abused its discre-
tion in admitting the testimony of two expert witnesses pre-
sented by the government—Steve Thel, a professor of securi-
ties law at Fordham University, and Denise Crawford, the
Commissioner of the Texas State Securities Board—arguing
that their testimony included inadmissible legal conclusions
and improperly addressed Offill’s intent. Offill claims that the
experts’ testimony "wrested the obligation to instruct the jury
from the trial court and told the jury how to decide this case."
6 UNITED STATES v. OFFILL
Before trial, the government identified Thel and Crawford
as experts on general securities law concepts and practice,
including securities registration, exemptions from registration,
restricted and unrestricted securities, and the functioning of
markets. The government’s notice to Offill about the antici-
pated testimony from these witnesses was detailed, outlining
specifically each subject the government intended to cover
with each witness. Offill filed a motion in limine (1) to "pre-
clud[e] the government’s expert witnesses from offering legal
conclusions at trial and (2) to instruct any government expert
that testifies that he or she may not discuss the legal conse-
quence of Mr. Offill’s alleged conduct or the conduct of his
alleged co-conspirators." Ruling on Offill’s motion, the dis-
trict court stated that what the government had proposed to
ask the witnesses would be admissible but, as Offill had
requested, the court imposed limits on the proposed testi-
mony. The court stated:
In the response I think the Government has properly
drawn the line in stating that they will not ask for
any expert witnesses to give opinions as to conduct
being illegal manipulation, or that a party has acted
unlawfully, or that an entity or individual is liable,
and will not ask any question which goes to the
intent of Mr. Offill.
The court recognized that the government could present the
witnesses’ testimony by way of hypothetical questions
to talk about the functioning of the securities mar-
kets, the ordinary practices and procedures, the ratio-
nale behind those policies and procedures and the
regulations that apply. These hypotheticals can at
times get a little close to the line if, obviously, tai-
lored specifically to the conduct here.
Finally, the court pointed out that the line between proper and
improper questions is not always clear and that counsel for
Offill should preserve objections at trial, stating:
UNITED STATES v. OFFILL 7
Certainly, Mr. Brehm or Mr. Watson, if you believe
you are listening to a hypothetical that is about to
clearly require an answer that goes over the line,
there is no restraint in my ruling from you making
objections at any time you believe that line has been
crossed.
During trial, Offill interposed no objection to the question-
ing of either Thel or Crawford. Had any of the questions been
improper and had Offill objected, the court would have had
the opportunity to regulate the testimony in light of the objec-
tion, directing the government to rephrase or avoid the objec-
tionable question. For this reason, when no objection is made,
we normally review objections raised for the first time on
appeal under the plain error standard, set forth in Federal Rule
of Criminal Procedure 52(b). See United States v. McIver, 470
F.3d 550, 561 (4th Cir. 2006).
Offill did, however, describe objections to potential ques-
tions in his motion in limine, which ordinarily would preserve
for appeal the right to review clear and definitive rulings
made by the district court on the motion. See United States v.
Lighty, 616 F.3d 321, 353 n.36 (4th Cir. 2010). But in this
case the court’s rulings were general, and for that reason, the
court invited Offill specifically to object during trial with
respect to questions that Offill believed crossed the line.
In these ambiguous circumstances, the parties understand-
ably dispute the appropriate standard of review to be applied.
We need not, however, resolve the dispute because we reject
each of Offill’s assignments of error with respect to these
expert witnesses’ testimony.
Offill contends first that Professor Thel and Commissioner
Crawford improperly gave opinions on the scope and meaning
of specific legal terms and standards, including (1) the mean-
ing of the term "underwriter"; (2) the criteria for securities
registration; (3) the aspects of spam e-mail that would qualify
8 UNITED STATES v. OFFILL
such e-mail as a "general announcement"; and (4) the criteria
under TAC § 139.19 for when investors can sell shares. He
argues that this testimony crossed the line drawn in Adalman
v. Baker, Watts & Co., 807 F.2d 359 (4th Cir. 1986), abro-
gated on other grounds by Pinter v. Dahl, 486 U.S. 622
(1988), for defining admissible testimony. In Adalman, the
Court affirmed the district court’s exclusion of an expert wit-
ness in a securities case, reflecting an understanding that
when an expert’s testimony directly concerns the ultimate
issue in the case, the risk that the testimony will hinder the
jury’s deliberations is especially heightened. The court noted
that even though "an expert may testify to an ultimate fact,
and to the practices and usages of a trade, we think care must
be taken lest, in the field of securities law, he be allowed to
usurp the function of the judge." Id. at 368 (quoting Marx &
Co. v. Diner’s Club, Inc., 550 F.2d 505, 512 (2d Cir. 1977)).
Federal Rule of Evidence 702 permits an expert to give
opinions on scientific matters, technical matters, or matters
involving other specialized knowledge so long as the testi-
mony "will assist the trier of fact to understand the evidence
or determine a fact in issue" (emphasis added). The touch-
stone of the rule is whether the testimony will assist the jury.
Focusing on that criterion, we have held that it does not help
the jury for an expert to give testimony that "states a legal
standard or draws a legal conclusion by applying law to the
facts," McIver, 470 F.3d at 562, because it "supplies the jury
with no information other than the witness’s view of how the
verdict should read," Weinstein’s Federal Evidence
§ 704.04[2][a] (2d ed. 2003). Determining when legal conclu-
sions would be helpful to the jury must also take into account
the role that the judge has in instructing the jury on the law.
We have noted, for example, that when a witness gives an
opinion about the meaning of a specialized legal term, the
witness is giving a legal conclusion that is better handled by
the judge and, coming from the witness, will be of little assis-
tance to the jury.
UNITED STATES v. OFFILL 9
Nonetheless, we have also noted that when the legal regime
is complex and the judge determines that the witness’ testi-
mony would be helpful in explaining it to the jury, the testi-
mony may be admitted. See United States v. Barile, 286 F.3d
749, 760 n.7 (4th Cir. 2002). Indeed, courts and commentators
have consistently concluded that expert testimony that ordi-
narily might be excluded on the ground that it gives legal con-
clusions may nonetheless be admitted in cases that involve
highly technical legal issues. See, e.g., United States v.
Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) ("Particularly
in complex cases involving the securities industry, expert tes-
timony may help a jury understand unfamiliar terms and con-
cepts"); Peckham v. Cont’l Cas. Ins. Co., 895 F.2d 830, 837
(1st Cir. 1990) (expert testimony on proximate causation in
insurance law was properly admitted because experts "could
reasonably be expected to shed some light in a shadowy
domain"); Weinstein’s Federal Evidence § 704.04[2][a] (2d
ed. 2003) ("[Expert] testimony may be helpful if the case
involves a specialized industry").
We conclude that the specialized nature of the legal
regimes involved in this case and the complex concepts
involving securities registration, registration exemptions, and
specific regulatory practices make it a typical case for allow-
ing expert testimony that arguably states a legal conclusion in
order to assist the jury. The jury in this case needed to under-
stand not only federal securities registration requirements but
also the operation of several obscure Texas Code provisions
and their relationship with the federal regime. To be sure, the
ultimate responsibility for instructing the jury on the law
belonged to the district court, but we cannot conclude that in
these circumstances the district court abused its discretion by
concluding that the expert testimony presented in this case
would assist the jury. Indeed, we find it difficult to imagine
how the government could have presented its case against
Offill without the assistance of expert testimony to explain the
intricate regulatory landscape and how securities practitioners
function within it.
10 UNITED STATES v. OFFILL
Offill argues in addition that the testimony of Professor
Thel and Commissioner Crawford invaded the province of the
jury in suggesting Offill’s liability. Our review, however,
does not confirm that this occurred in any direct sense. Cf.
Barile, 286 F.3d at 761-62 (excluding an expert’s conclusion
that specific § 510(k) submissions did not contain "materially
misleading statements"); United States v. Scop, 846 F.2d 135,
138, 140 (2d Cir. 1988) (excluding expert testimony that an
investment house had in fact conducted "manipulative and
fraudulent scheme"); Marx, 550 F.2d 505 (excluding expert
testimony as to the meaning of particular contractual terms at
issue in the case and whether the party had complied with
those terms). Instead, Professor Thel and Commissioner
Crawford gave testimony on the general operation of securi-
ties law, even though the areas of testimony were directly rel-
evant to the conduct with which Offill was charged, allowing
the jury to determine the law’s applicability to Offill. See
Bilzerian, 926 F.2d at 1294-95 (expert testimony properly
admissible where "testimony was general background on fed-
eral securities regulation and the filing requirements of Sched-
ule 13D").
Finally, Offill contends that it was an abuse of discretion to
allow the government to use hypothetical questions in obtain-
ing Professor Thel and Commissioner Crawford’s testimony
on rebuttal. Specifically, Offill argues that Professor Thel and
Commissioner Crawford gave opinion testimony addressing
Offill’s intent, in violation of Federal Rule of Evidence
704(b). That rule prohibits an expert witness from "testifying
with respect to the mental state or condition of a defendant . . .
as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime
charged." The rule provides that such intent is an ultimate
issue for the jury alone to decide. In particular, Offill objects
to Professor Thel’s testimony, given in rebuttal to Offill’s tes-
timony, when Professor Thel stated:
Q. What if the investor doesn’t pay, but instead has
a promissory note which he intends to pass on
UNITED STATES v. OFFILL 11
to the next person who he transfers or sells his
stock to?
A. Well, I want to focus on the precise details.
That would either be treated as nonetheless a
sale, that paying with a promissory note is a
sale. Like if I buy my car with a promissory
note.
If he had no intention of paying the promissory
note, and this were a structure to get around the
statute, I think the situation becomes worse. In
the situation in which that first so-called pur-
chaser isn’t really buying it, what he is really
doing is offering the security for sale to the sec-
ond intermediary. And the person is an under-
writer if they buy with a view to distribution or
offer for the issuer in connection with the distri-
bution.
Likewise, Offill objects to Commissioner Crawford’s testi-
mony, again given in rebuttal to Offill’s testimony, when she
stated:
Q. Could a Texas accredited investor rely on
139.14 to transfer the shares to another entity or
individual for free so that other individual could
sell those shares at a profit?
A. No. In fact, we would call that a scheme to
evade the registration requirements if that were
done.
Rather than addressing Offill’s intent, however, both wit-
nesses testified hypothetically. Professor Thel testified what
the consequences would be if a purchaser were to buy stock
in exchange for a promissory note, hypothesizing both an
intent to repay the note and no intent to repay, and he con-
12 UNITED STATES v. OFFILL
cluded that a transaction without intent to pay would not be
a purchase or sale. Commissioner Crawford testified similarly
about Texas law, concluding that under such a hypothetical
scenario, there would be no sale. Rather, she stated, a sale
without payment could be characterized as a "scheme to
evade the registration requirements." In both cases, the jury
was left with the open question of determining whether the
hypothetical situations were applicable to Offill and, if so, in
what respect.
It is well established that experts may offer opinions based
on hypothetical questions proposed by the attorneys question-
ing them. See Fed. R. Evid. 703; United States v. Mann, 712
F.2d 941 (4th Cir. 1983) (per curiam). Such testimony would
be admissible even though the hypothetical questioned mir-
rored the defendant’s conduct, subject of course to the limita-
tions that the witness not testify as to the defendant’s "intent,"
as precluded by Rule 704(b). See Bilzarian, 926 F.2d at 1294;
United States v. Watson, 171 F.3d 695, 703 (D.C. Cir. 1999).
We conclude that the challenged testimony given by both wit-
nesses in rebuttal in this case constituted appropriate opinion
testimony.
In sum, we conclude that the district court did not abuse its
discretion in its ruling on Offill’s motion in limine and when
regulating the testimony of Professor Thel and Commissioner
Crawford during trial. Because the relevant legal regimes
were complex, it assisted the jury to have them explained.
III
Offill contends also that the district court abused its discre-
tion in admitting lay opinion testimony from two co-
conspirators, David Stocker and Mark Lindberg. He argues
that many statements made by Stocker impermissibly
included statements regarding the legal consequences of
Stocker’s conduct and, by implication, the legality of Offill’s
conduct. He refers in particular to statements in which Stocker
UNITED STATES v. OFFILL 13
describes his own actions as "fraudulent," "securities manipu-
lation," and "illegal." In a similar vein, Offill complains about
Stocker and Lindberg’s allegedly improper statements giving
legal conclusions, including their understandings of the term
"underwriter," of the requirements for securities registration,
and of the transactions’ compliance with those provisions.
Inasmuch as Offill did not interpose objections to this opinion
testimony either in his motion in limine or during trial, we
review his arguments under the plain error standard. Whether
we review under the plain error standard or harmless error
standard, however, our conclusion is the same.
Federal Rule of Evidence 701 authorizes the admission of
lay opinion testimony if it is: "(a) rationally based on the per-
ception of the witness, and (b) helpful to a clear understand-
ing of the witness’ testimony or the determination of a fact in
issue, and (c) not based on scientific, technical, or other spe-
cialized knowledge within the scope of Rule 702."
Rejecting the impractical notion that lay persons be
required to testify only to pure facts when relating their
knowledge of an incident, the rule allows testimony based on
the person’s reasoning and opinions about witnessed events,
such as are familiar in every day life. Thus, on entering a
room, a witness might say that she saw the victim on the floor
with what looked like blood on his shirt, even though she was
not an expert and had not tested the substance to confirm that
it was blood. The important limitations are (1) that the opin-
ion testimony be based on the witness’ actual perception of
events and (2) that it be helpful to the jury in understanding
those events. Moreover, unlike the expert testimony rule, this
rule permits lay testimony relating to a defendant’s hypotheti-
cal mental state. See United States v. Fowler, 932 F.2d 306,
312 (4th Cir. 1991). Courts are, however, "mindful to guard
against lay witness testimony when it involves ‘meaningless
assertions which amount to little more than choosing up
sides.’" Mattison v. Dallas Carrier Corp., 947 F.2d 95, 110-
14 UNITED STATES v. OFFILL
11 (4th Cir. 1991) (quoting Fed. R. Evid. 701, Advisory Com-
mittee Note).
Relevant to the question about whether Offill intentionally
participated in the conspiracy, Stocker’s testimony about the
conspiracy’s fraudulent nature and illegality would be helpful
to the jury because it shed light, based on Stocker’s personal
knowledge of his own illegal conduct, on the nature and pur-
pose of the conspiracy and Offill’s interaction with Stocker in
furthering its illegal aims. Cf. Certain Underwriters at
Lloyd’s, London v. Sinkovich, 232 F.3d 200, 204 (4th Cir.
2000) (lay witness’ testimony improper when not based on
personal experience).
With respect to Offill’s objection to statements by Stocker
and Lindberg about their understandings of the term "under-
writer," of the requirements of security registration provi-
sions, and of the conspiracy’s compliance with them, the
testimony was similarly relevant to the nature and illegality of
the conspiracy. Stocker and Lindberg testified to their under-
standing of various securities law requirements in describing
their involvement in the conspiracy and their interactions with
Offill. Stocker used the phrases "a scheme or plan to evade
registration requirements" and "investment intent" when testi-
fying about the content of actual conversations he had with
Offill. Stocker similarly defined his understanding of "under-
writer," which was particularly important to the jury’s under-
standing of the conspiratorial conduct when Offill suggested
to Stocker that he not give an opinion on whether Offill was
an underwriter. Stocker stated that Offill had advised him to
add legal phrases to the subscription agreement "in order to
make the subscription agreement appear to comply with the
law." Whether Stocker’s definition of "underwriter" was a
legally correct one was irrelevant inasmuch as his understand-
ing of the definition was the basis for the conspirators’ efforts
at circumventing securities laws requirements.
UNITED STATES v. OFFILL 15
At bottom, we conclude that the district court acted well
within its broad discretion to admit this testimony under Rule
701.
IV
Offill challenges two other rulings by the district court
made during trial, neither of which merits extensive discus-
sion. The court admitted subsequent acts evidence concerning
Offill’s involvement in a transaction that occurred in late
2006 and early 2007. This evidence, however, was admissible
under Federal Rule of Evidence 404(b) and the four-part test
that we articulated with respect to that rule in United States
v. Queen, 132 F.3d 991 (4th Cir. 1997).
Offill also contends that the district court erred in failing to
give the jury an instruction on multiple conspiracies. Again
we have reviewed the record and find ample evidence to sup-
port the district court’s decision to give only a single conspir-
acy instruction. But even if Offill were correct, the failure to
give a multiple jury instruction would have been of no
moment in this case where all of the evidence presented at
trial related to Offill and not to any other conspiracy of which
Offill was not alleged to be a part. As we have previously rec-
ognized, the danger of an improper single conspiracy instruc-
tion stems from the possibility that "the jury was likely to
transfer evidence from one conspiracy to a defendant involved
in an unrelated conspiracy." United States v. Kennedy, 32
F.3d 876, 883-84 & n.1 (4th Cir. 1994). But where, as here,
a defendant is tried alone, there is no significant concern
about spillover prejudice. Id. at 884.
V
Finally, Offill challenges his sentence as unreasonable. He
argues first that the district court clearly erred in not reducing
his offense level for a minimal or minor role in the conspir-
acy. In determining whether such an adjustment is warranted,
16 UNITED STATES v. OFFILL
a court looks to whether the defendant’s conduct was "mate-
rial or essential to committing the offense." United States v.
Blake, 571 F.3d 331, 352-53 (4th Cir. 2009) (internal quota-
tion marks omitted). In this case, the district court found that
Offill’s actions were clearly material and essential to the func-
tioning of the conspiracy. Without his assistance in creating
the documentation for the unregistered securities and in pro-
viding advice as to how to circumvent registration require-
ments, the other facets of the conspiracy could not have
occurred. In addition, the evidence showed that Offill was
intimately involved in the manipulation of sales to pump up
the value of the unregistered securities before selling them to
the public. These facts support the district court’s refusal to
reduce Offill’s offense level for a minimal or minor role.
Offill next argues that his sentence was disproportionate in
that it was longer than the sentences received by most of his
co-conspirators. His co-conspirators, however, cooperated
with the government or accepted responsibility for their
actions, neither of which is the case with respect to Offill.
Indeed, the district court found that Offill not only vigorously
defended himself but did so with what the district court char-
acterized as "one of the biggest pack of lies that I think I have
ever heard from any defendant testifying in all my years of
trial litigation." Nonetheless, Offill received a sentence that
was 72 months below the bottom of the Sentencing Guide-
lines’ recommended range. He has presented no evidence to
suggest that this sentence was unreasonable, especially in
light of the fact that we consider sentences within the Guide-
lines range to be presumptively reasonable. See United States
v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).
Offill also contends that the district court failed to make
specific findings as to the extent of his involvement in the
conspiracy, as required by United States v. Bolden, 325 F.3d
471 (4th Cir. 2003). His argument, however, is belied by the
record. In adopting the presentence report, the district court
stated:
UNITED STATES v. OFFILL 17
I think that the Guidelines calculation [in the presen-
tence report] is correct in every respect. The loss
amount, as the government stated, is in excess of $1
million based on the facts and the testimony that I
heard at trial . . . . And Mr. Offill was part and parcel
to the use of fraudulent documents, many of which
he is the one that created them, which enabled this
scheme to move [forward] . . . . Again his role in the
offense, although it is different and not as extensive
as some of the members, especially the promoters
perhaps, Mr. Stocker, he is clearly not a minimal
minor participant, but a fully involved co-conspirator
who participated for an extensive period of time in
this unlawful conspiracy.
Finally Offill challenges the district court’s calculation of
the amount of financial gain imputable to him for purposes of
determining the proper offense level under the Sentencing
Guidelines. The Guidelines define the offense level for the
crimes involved, based on the amount of gain from the
offense. In this case, the district court was unable to determine
accurately the loss to victims resulting from the conspiracy.
Therefore, relying on U.S.S.G. § 2B1.1(b)(1) Application
Note 3(B), the court used the "gain that resulted from the
offense" as an alternative measure of loss and found it appro-
priate to use the amount of gain by the conspiracy, which was
in excess of $1 million. This figure included both the pay-
ments directly received by Offill and the value of stock sales
made by his co-conspirators to the public. Offill does not dis-
pute the inclusion of gain actually received by him, but he
does dispute the imputation of the gain realized by his co-
conspirators. His position, however, overlooks several provi-
sions of the Guidelines.
U.S.S.G. § 1B1.3(a)(b)(B) provides that a defendant
involved in a joint criminal undertaking may be held responsi-
ble for relevant conduct that includes all reasonably foresee-
able conduct of his co-conspirators that is in furtherance of
18 UNITED STATES v. OFFILL
the conspiracy. Consistent with this section, courts have held
that reasonably foreseeable losses attributable to the acts of
co-conspirators may be included in the defendant’s loss calcu-
lation under U.S.S.G. § 2B1.1. See, e.g., United States v. Rob-
inson, 603 F.3d 230 (3d Cir. 2010); United States v.
Treadwell, 593 F.3d 990 (9th Cir. 2010); United States v.
Jenkins-Watts, 574 F.3d 950 (8th Cir. 2009); United States v.
Catalfo, 64 F.3d 1070 (7th Cir. 1995).
Moreover, Application Note 3(B) to U.S.S.G. § 2B1.1
states that a court "shall use the gain that resulted from the
offense" (emphasis added). The use of the word "offense"
when applied here refers to the conspiracy. Thus, Offill is
imputed with the gain of the conspiracy, so long as that gain
was "reasonably foreseeable" to him within the meaning of
"reasonably foreseeable" in U.S.S.G. § 1B1.3.
Were we to limit the gain calculation in this case to the
$127,500 that Offill received in fees, we would be grossly
understating Offill’s role in the conspiracy, which illegally
acquired gains in the millions of dollars.
***
For the foregoing reasons, we affirm Offill’s conviction
and sentence.
AFFIRMED