United States v. Irvin ( 2012 )


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  •                                                                            FILED
    United States Court of Appeals
    Tenth Circuit
    March 22, 2012
    PUBLISH                      Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    FOR THE TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                         No. 10-3106
    (5:06-CR-40151-JAR-3)
    HALLIE IRVIN,
    Defendant - Appellant.
    _____________________________
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee.
    v.                                                         No. 10-3107
    (5:06-CR-40151-JAR-1)
    F. JEFFREY MILLER,
    Defendant - Appellant.
    ORDER
    Before MURPHY, EBEL, and TYMKOVICH, Circuit Judges.
    These matters are before the court on F. Jeffrey Miller’s Petition For Panel
    Rehearing, Or, In The Alternative, Rehearing En Banc, filed in appeal number 10-3107.
    We also have a response from the government. Upon consideration, we grant panel
    rehearing and direct the clerk of court to substitute the revised opinion attached to this
    order for the original decision issued in these appeals on August 31, 2011.
    In this regard, we note that because no petition for rehearing was filed in
    companioned matter 10-3106, United States v. Irvin, the mandate issued in the normal
    course on September 22, 2011. Because the grant of rehearing in number 10-3107
    necessarily impacts the Irvin opinion, however, we sua sponte recall the mandate in that
    case and likewise direct the clerk to file the attached new decision in that appeal. The
    new opinion will reflect today’s filing date.
    The suggestion for rehearing en banc filed with the petition for rehearing in
    number 10-3107 was circulated to all the judges of the court who are in regular active
    service. As no member of the panel or the court called for a poll on that request, the
    suggestion for en banc rehearing is denied.
    Entered for the Court,
    ELISABETH A. SHUMAKER
    Clerk of Court
    2
    FILED
    United States Court of Appeals
    Tenth Circuit
    March 22, 2012
    PUBLISH                  Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                          Nos. 10-3106 and 10-3107
    HALLIE IRVIN and F. JEFFREY
    MILLER,
    Defendants - Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF KANSAS
    (D.C. Nos. 5:06-CR-40151-JAR-3 & 1)
    John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public
    Defender, and O. Dean Sanderford, Assistant Federal Public Defender, with him on the
    briefs), Denver, Colorado, for Defendant-Appellant, Irvin.
    Jeffrey D. Morris of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, Kansas City,
    Missouri, for Defendant-Appellant, Miller.
    Richard L. Hathaway, Assistant United States Attorney (Barry R. Grissom, United States
    Attorney, and Christine E. Kenney, Assistant United States Attorney, with him on the
    briefs), District of Kansas, Topeka, Kansas, for Plaintiff-Appellee.
    Before MURPHY, EBEL, and TYMKOVICH, Circuit Judges.
    MURPHY, Circuit Judge.
    I.     Introduction
    Appellants F. Jeffrey Miller and Hallie Irvin were charged in an eleven-count
    indictment with a variety of crimes stemming from an alleged conspiracy to defraud
    mortgage lenders in connection with the subprime housing market. After a month-long
    jury trial, Miller and Irvin were each convicted on several of the charges and sentenced.
    They now appeal their convictions, citing numerous evidentiary and legal errors. Miller
    also challenges his sentence. Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we now
    REVERSE their convictions in part, AFFIRM their convictions in part, and REMAND
    for further proceedings.
    II.    Background
    Miller was a builder and developer involved in residential construction in Kansas,
    Missouri, and other states.1 There being many competing developers marketing their
    homes to well-qualified buyers, Miller chose to focus his business on the relatively
    untapped subprime market, i.e., buyers with low income and poor credit. The marketing
    of Miller’s homes was handled by Stephen Vanatta, who would refer potential buyers to a
    mortgage broker named James Sparks for financing. Upon the successful closing of a
    home sale, Miller was paid out of the mortgage loan proceeds while Sparks received a
    commission from the mortgage lender, which he shared with Vanatta. Because a prior
    1
    We summarize the facts in the light most favorable to the government,
    drawing all inferences consistent with the jury’s verdict. United States v. Winder,
    
    557 F.3d 1129
    , 1132 (10th Cir. 2009).
    -2-
    felony conviction for passing a bad check prohibited Vanatta from maintaining a
    checking account, his portion of commissions were paid by checks issued to his wife,
    appellant Irvin.
    Despite the eagerness of lenders to extend mortgage loans, Sparks often had
    trouble securing financing for Vanatta’s subprime applicants. In order to ensure that
    otherwise unqualified buyers could obtain financing, Sparks and Vanatta enhanced such
    buyers’ apparent creditworthiness by, among other things, overstating the buyers’
    income, altering bank statements to add deposits, and drafting false letters of
    employment. The mortgage lenders were further induced to extend financing through
    Miller’s use of inflated home appraisals, overvaluing the relevant properties and thereby
    enhancing the lenders’ perceived loan-to-collateral ratio.2 Reflecting these inflated home
    valuations, however, occasionally required Sparks to surreptitiously increase the sales
    price on previously signed sales contracts. To convince the surprised buyers to proceed
    with their purchase after discovering the price change, Miller would himself offer to
    extend a second mortgage, referred to as a seller carryback, covering the difference
    between the first mortgage and the adjusted purchase price. Finally, to bring the effective
    purchase price back in line with the originally agreed-upon amount, Miller would agree to
    2
    For example, if a buyer was interested in purchasing a house priced at
    $100,000 but unable to secure a loan of that size, a new appraisal would be
    arranged that increased the appraised value to $120,000. The buyer would then
    apply for the same $100,000 loan, which the lender would believe was secured by
    $120,000 collateral and therefore much less risky.
    -3-
    discount the amount owed on the seller carryback if the buyer successfully refinanced the
    first and second mortgages.3
    The government became aware of these fraudulent activities due to a report made
    by the accounting firm, Meara King & Company (“Meara King”). Meara King was
    monitoring Miller’s business activities in accordance with a certain agreement entered
    into by Miller as a condition of his release in connection with another criminal
    prosecution (the “Monitoring Condition”).4 While reviewing a home sale referred to
    herein as the “Jordan Transaction,” Meara King noted a sizable discrepancy between the
    reported value of the property and the value assigned to it by Meara King’s appraiser. It
    reported this discrepancy to the United States Attorney’s Office, which began an
    investigation. The investigation ultimately led to Miller, Vanatta, Sparks, Irvin, and
    Miller’s former employee Sandra Harris, being charged with a variety of criminal
    offenses including bank fraud, conspiracy to commit bank fraud, money laundering, and
    criminal contempt for knowingly violating the order setting Miller’s conditions of release
    in Miller I.
    Sparks pled guilty to one count of conspiracy pursuant to an agreement whereby
    he agreed to testify against his co-defendants as a cooperating witness. The remaining
    3
    In the above example, the seller carryback mortgage would be $20,000,
    reflecting the difference between the $100,000 first mortgage and the $120,000
    inflated sales price.
    4
    The other prosecution, United States v. Miller, No. 06-40068-01 (D. Kan.
    Feb. 12, 2010) (hereinafter “Miller I”), went to trial and ultimately resulted in
    Miller’s acquittal on all counts.
    -4-
    defendants were tried on the following charges: conspiracy (Count 1); two counts of bank
    fraud (Counts 2 & 3); two counts of money laundering, each count tied to one of the
    substantive bank fraud charges (Counts 4 & 5); destroying records in a federal
    investigation (Count 6); corruptly influencing a witness (Count 8); and four counts of
    criminal contempt, for either violating the Monitoring Condition set in Miller I, or for
    aiding and abetting in those violations (Counts 9–12).5 Following a lengthy trial, the jury
    acquitted Harris of all charges. Miller, Vanatta, and Irvin were each found guilty of
    Counts 1, 5, 9, and 10. Vanatta and Irvin were additionally found guilty of Counts 2 and
    4.
    Prior to sentencing, Miller, Vanatta and Irvin moved for entry of judgments of
    acquittal, alleging insufficient evidence to sustain a conviction. Alternately, the
    defendants requested a new trial based upon certain alleged errors committed by the trial
    court. These motions were denied by the district court. Miller and Irvin now challenge
    their convictions on essentially the same grounds presented below. Miller also challenges
    his sentence.
    III.   Discussion
    A.       Challenges to Admitted Evidence
    1.    Admission of Exhibit 1-2
    The testimony of cooperating defendant Sparks formed much of the government’s
    5
    Count 7 charged the defendants with harassing Sparks in an effort to
    dissuade him from testifying, but was dismissed before trial.
    -5-
    case against Miller and Irvin. Over the course of four days, Sparks described the various
    forgeries, misrepresentations, and other fraudulent activities he allegedly engaged in with
    Vanatta to obtain financing for unqualified buyers. In all, Sparks related the particulars of
    twenty-two separate transactions involving Miller-built homes. During this testimony,
    continual reference was made to government Exhibit 1-2, a chart displayed before the
    jury that purported to summarize the relevant details of these transactions. This chart was
    entitled “Summary of Fraud for JEFF MILLER et al., Fraud That Can Be Identified By
    James Sparks.” It included information identifying the date, location, and buyer for each
    transaction, as well as a column labeled “False Statements to Lenders,” which listed the
    various specific fraudulent representations and actions described by Sparks.
    Exhibit 1-2 was initially offered by the government under Fed. R. Evid. 1006 as a
    summary of several boxes of “loan files” pertaining to the allegedly fraudulent home
    sales. The defendants vigorously resisted the admission of the summary chart, filing a
    motion in limine and repeatedly objecting during trial. The district court ultimately
    agreed with the government and admitted Exhibit 1-2 under Rule 1006. Arguing the
    requirements of Rule 1006 were not satisfied and the loan files upon which Exhibit 1-2
    was based constituted inadmissible hearsay, Miller and Irvin contend the district court’s
    decision is reversible error. We review a district court’s decision to admit summary
    charts under Rule 1006 for abuse of discretion. United States v. Thompson, 
    518 F.3d 832
    ,
    858 (10th Cir. 2008).
    Rule 1006 provides, in relevant part: “The contents of voluminous writings,
    -6-
    recordings, or photographs which cannot conveniently be examined in court may be
    presented in the form of a chart, summary, or calculation. The originals, or duplicates,
    shall be made available for examination or copying, or both, by other parties at reasonable
    time and place.” Fed. R. Evid. 1006. Although the materials upon which a Rule 1006
    summary is based need not themselves be admitted into evidence, they must at least be
    admissible. United States v. Samaniego, 
    187 F.3d 1222
    , 1223 (10th Cir. 1999).
    Miller and Irvin argue the loan files purportedly summarized in Exhibit 1-2
    constituted hearsay that was not shown to qualify for any exception to the prohibition on
    hearsay evidence. When this same challenge was raised before the district court, the
    government attempted to show the loan files were admissible under the business records
    exception established by Fed. R. Evid. 803(6). Pursuant to Rule 803(6), business records
    are admissible despite their hearsay nature if the records’ custodian, or another qualified
    witness, testifies the records (1) were prepared in the normal course of business; (2) were
    made at or near the time of the events recorded; (3) were based on the personal
    knowledge of the entrant or of a person who had a business duty to transmit the
    information to the entrant; and (4) are not otherwise untrustworthy. United States v. Ary,
    
    518 F.3d 775
    , 786 (10th Cir. 2008). The government offered Sparks as the witness
    qualified to make these foundational showings. Sparks, however, testified the loan files
    were largely maintained by various title companies for whom he had not worked and
    under circumstances of which he had no personal knowledge. Furthermore, Sparks could
    not state whether the loan files were made or kept by the title companies in the regular
    -7-
    course of their businesses. He also indicated that various documents within the loan files
    had been removed, destroyed, or otherwise modified. His testimony, therefore, was
    insufficient to establish the admissibility of the loan files as business records.
    Before ruling on the admissibility of Exhibit 1-2, the district court acknowledged
    the documents summarized by a Rule 1006 chart must themselves be admissible.
    Nevertheless, it reasoned that, while Sparks’s testimony had not established admissibility
    of the loan files under Rule 803(6), neither had the defendants demonstrated the loan files
    would not satisfy the business records exception if the government presented testimony
    from the appropriate records custodians. Because it had “heard nothing that contradicts
    the idea that [the loan files] are business records and would meet the business records
    exception,” the district court overruled the hearsay objection and received Exhibit 1-2. It
    reaffirmed this ruling several times throughout the trial. The district court abused its
    discretion by admitting Exhibit 1-2.
    The materials summarized by Rule 1006 evidence must themselves be admissible
    because a contrary rule “would inappropriately provide litigants with a means of avoiding
    rules governing the admission of evidence such as hearsay.” Samaniego, 
    187 F.3d at 1224
    . Accordingly, just as the proponent of hearsay evidence bears the burden of
    establishing the applicability of a hearsay exception, Ary, 
    518 F.3d at 786
    , so too must the
    proponent of a Rule 1006 summary based on hearsay evidence establish that the materials
    summarized are admissible. Samaniego, 
    187 F.3d at 1224
    . Contrary to the district
    court’s ruling, Miller and Irvin were under no obligation to affirmatively disprove the
    -8-
    applicability of the business records exception. The burden was on the government alone.
    By not requiring the government to lay the foundation necessary under Rule 803(6), the
    district court erred as a matter of law. 
    Id.
    The government seeks to avoid this conclusion by explaining that, contrary to its
    representations before the district court, Exhibit 1-2 summarized not only the
    aforementioned loan files, but also the trial testimony of Sparks and other government
    witnesses.6 Therefore, the government reasons, Exhibit 1-2 constituted a “hybrid”
    summary chart, admissible under Fed. R. Evid. 611(a). The government’s logic eludes
    the court, for the loan files remain inadmissible hearsay.
    Rule 611(a) provides that “[t]he court shall exercise reasonable control over the
    mode and order of interrogating witnesses and presenting evidence so as to (1) make the
    interrogation and presentation effective for the ascertainment of the truth, (2) avoid
    needless consumption of time, and (3) protect witnesses from harassment or undue
    embarrassment.” Fed. R. Evid. 611(a). This directive has in some circuits been read as
    authorizing the use of summary exhibits for pedagogical purposes, wholly apart from
    Rule 1006. See, e.g., United States v. Milkiewicz, 
    470 F.3d 390
    , 397 (1st Cir. 2006);
    United States v. Bray, 
    139 F.3d 1104
    , 1111-12 (6th Cir. 1998); United States v. Johnson,
    6
    Rule 1006 permits the use of exhibits summarizing only “[t]he contents of
    voluminous writings, recordings, or photographs which cannot conveniently be
    examined in court.” Fed. R. Evid. 1006. To the extent the government’s
    revisionist assertions indicate Exhibit 1-2 summarized witness testimony,
    therefore, they further emphasize that the chart’s admission under Rule 1006 was
    in error.
    -9-
    
    54 F.3d 1150
    , 1157-59 (4th Cir. 1995). Nothing in Rule 611(a) or the cases interpreting
    it, however, indicates that such pedagogical exhibits can be used to summarize otherwise
    inadmissible hearsay evidence, such as the loan files. Indeed, the cases discussing Rule
    611(a) summaries typically require the summarized evidence to be affirmatively admitted
    into evidence. See Milkiewicz, 
    470 F.3d at 397
     (“A summary chart used as a pedagogical
    device must be linked to evidence previously admitted . . . .”); Bray, 
    139 F.3d at 1111
    (same). Such a requirement is consistent with the spirit of Rule 611(a), which, in
    discussing the presentation of evidence, presupposes the suitability of such evidence for
    presentation, as well as our existing Rule 611(a) jurisprudence. See United States v.
    Stiger, 
    413 F.3d 1185
    , 1198 (10th Cir. 2005) (“[A] party may only admit summary
    testimony under Fed. R. Evid. 611(a) if the District Court previously admitted at trial the
    evidence that forms the basis of the summary.”). In short, resort to Rule 611(a) in no way
    resolves the hearsay problem that renders Exhibit 1-2 inadmissible.
    This analysis, however, does not conclude the inquiry, because “this court applies
    a harmless error standard when reviewing trial courts’ rulings on hearsay objections
    resting solely on the Federal Rules of Evidence.” United States v. Collins, 
    575 F.3d 1069
    ,
    1073 (10th Cir. 2009) (quotation and alteration omitted). “A harmless error is one that
    does not have a substantial influence on the outcome of the trial; nor does it leave one in
    grave doubt as to whether it had such effect.” 
    Id.
     (quotation omitted). In evaluating
    whether the district court’s erroneous admission of Exhibit 1-2 was harmless, “we review
    the record de novo to determine whether the evidence . . . had a substantial influence on
    -10-
    the jury’s verdict in the context of the entire case against [the defendants].” United States
    v. Wilson, 
    107 F.3d 774
    , 785-86 (10th Cir. 1997) (quotation omitted).
    The government bears the burden of proving the error was harmless. United States
    v. Velarde, 
    214 F.3d 1204
    , 1211 (10th Cir. 2000). It has not adequately carried this
    burden. Exhibit 1-2 was displayed before the jury throughout Sparks’s direct testimony,
    listing the government’s allegations using suggestive terminology (e.g., referring to
    commission payments as “kickbacks”) and organizing them into a simple and
    comprehensible chart beneath condemnatory section headings (e.g., “Summary of Fraud
    for JEFF MILLER et al.” and “False Statements to Lenders”). The district court itself
    later acknowledged the prejudicial influence of the exhibit’s rhetorical aspects and
    ordered several redactions to the chart’s accusatory terminology before sending it into
    jury deliberations. Although these revisions were appropriate, they came too late. More
    importantly, they did not address the core prejudicial impact of this inadmissible exhibit,
    i.e., the compelling simplicity with which Exhibit 1-2 reduced weeks of complex
    testimony and inadmissible hearsay into an easily digested summary.
    The government itself confirmed this was the primary benefit of the summary
    chart. In advocating the propriety of Exhibit 1-2 before the district court, the government
    highlighted its significance: “The more that this document is challenged the more it
    emphasizes the importance, and particularly in a fraud case where we have a cooperating
    individual, of having a document that in one comprehensive format identifies the various
    kinds of frauds and the patterns.” Focusing on the usefulness of Exhibit 1-2 in jury
    -11-
    deliberations, the government further explained: “[I]t’s more significant than ever that the
    jury have this back in the jury room . . . as something that will be a roadmap . . . .” The
    government’s advocacy for Exhibit 1-2 in the district court belies its assertions of
    harmlessness on appeal. See United States v. DeLoach, 
    504 F.2d 185
    , 192 (D.C. Cir.
    1974) (noting that a prosecutor’s “own estimation of his case, and of its reception by the
    jury at the time, is, if not the only, at least a highly relevant measure now of the likelihood
    of prejudice”).
    In contrast to the litany of direct evidence indicating Vanatta’s and Sparks’s illegal
    activities in furtherance of the conspiracy charged in Count 1, Miller’s and Irvin’s
    connections with the conspiracy were primarily supported by circumstantial evidence,
    such as Miller’s admitted desire to sell his houses at the highest possible price and Irvin’s
    preparation of invoices for “construction management fees” that secretly represented
    Vanatta’s real estate marketing commissions. Although the evidence is sufficient to
    sustain the jury’s verdict on Count 1 as a purely legal matter,7 we are left in grave doubt
    that the verdict would have been the same had the objection to Exhibit 1-2 been sustained.
    Miller’s and Irvin’s convictions on Count 1 are therefore reversed.
    Nevertheless, the admission of Exhibit 1-2 was harmless error in relation to Counts
    2, 4, 5, 9 and 10, which are discussed in greater detail below. Those counts—each of
    which alleged a discrete instance of criminal activity—did not present the factual
    7
    Neither Miller nor Irvin now contest the sufficiency of the evidence
    supporting their convictions on Count 1.
    -12-
    complexity characteristic of the conspiracy in Count 1, and were therefore less
    susceptible to the summarization of the evidence in Exhibit 1-2. The bank fraud and
    money laundering charged in Counts 2 and 4, moreover, were not reflected on Exhibit 1-2
    at all, and the government’s case on those counts was supported by a wholly separate
    body of evidence. Counts 5, 9, and 10, by contrast, centered on criminal conduct
    committed in connection with the so-called Jordan Transaction, which was summarized
    on Exhibit 1-2. Each allegation concerning the Jordan Transaction contained in Exhibit
    1-2, however, was independently supported by sufficient properly admitted evidence and
    witness testimony. Furthermore, while the majority of the transactions summarized on
    Exhibit 1-2 received only passing mention during the trial, the Jordan Transaction upon
    which Count 5 was premised was discussed repeatedly and at great length during trial.
    Any influence that Exhibit 1-2 might have had upon the jury’s verdict on Counts 5, 9, and
    10 was, therefore, minimal.
    2.     Admission of Exhibit 2009
    Exhibit 2009 is a review appraisal prepared by Pinnacle Appraisal Group LLC at
    the request of Meara King, the accounting firm monitoring Miller. The appraisal
    concerned the property sold by Miller in connection with the Jordan Transaction. It
    concluded the property was worth approximately $185,000, and that an earlier appraisal
    of $220,000 reflected an inflated valuation. Stephen Browne, a partner at Meara King,
    was called upon to provide the necessary foundational showing and testified that he and
    his firm regularly ordered, received, and relied upon such appraisals as a protocol in
    -13-
    monitoring businesses, including Miller’s. He further testified that Meara King routinely
    worked with Pinnacle in obtaining appraisals and that Exhibit 2009 was prepared by
    Pinnacle shortly after a request was made. Browne also explained that Meara King
    created a database where all information relating to the monitoring of Miller’s businesses
    was stored, including any appraisals and accounting documents accumulated through the
    process. Miller and Irvin objected to the admission of Exhibit 2009 on hearsay grounds,
    but the district court ruled the document was admissible as a business record pursuant to
    Fed. R. Evid. 803(6). Miller and Irvin contend this ruling was error.
    Rule 803(6) provides8:
    The following are not excluded by the rule against hearsay, regardless of
    whether the declarant is available as a witness:
    ....
    (6) Records of a Regularly Conducted Activity. A record of an act, event,
    condition, opinion, or diagnosis if:
    (A) the record was made at or near the time by—or from information
    transmitted by—someone with knowledge;
    (B) the record was kept in the course of a regularly conducted
    activity of a business, organization, occupation, or calling, whether
    or not for profit;
    (C) making the record was a regular practice of that activity;
    (D) all these conditions are shown by the testimony of the custodian
    8
    Beginning December 1, 2011, the wording of Rule 803 was changed to
    improve its clarity. The changes were “intended to be stylistic only” and do not
    displace any of this court’s prior holdings on evidence admissibility. Fed. R.
    Evid. 803, advisory committee’s note (2010 amendments).
    -14-
    or another qualified witness . . . ; and
    (E) neither the source of information nor the method or
    circumstances of preparation indicate a lack of trustworthiness.
    Relying on United States v. Carranco, 
    551 F.2d 1197
    , 1200 (10th Cir. 1977), the
    government contends Exhibit 2009 was admissible through the testimony of Browne as
    an “adoptive” business record. The government reads Carranco as holding a record
    prepared by one company and “incorporated and adopted into the records of the witness’s
    company” satisfies the requirements of the business records exception to the hearsay rule.
    Carranco does not so hold. To the contrary, Carranco expressly recognized such an
    argument could have been made on the facts of that case, but declined to separately
    consider it because the necessary objections had not been made before the trial court. 
    Id. at 1199
    . Carranco did concern the admissibility of a freight bill prepared by one party,
    Admiral Merchants, and used by another party, ICX. 
    Id.
     The objection at issue,
    however, was limited to whether notations made by ICX on the freight bill precluded its
    admissibility because they were not made in the regular course of business. 
    Id.
     At best,
    Carranco can be read as assuming, without deciding, that one company can “adopt” the
    business records of another company for purposes of Rule 803(6).
    This court has therefore never decided whether “adoptive business records” are
    admissible under Rule 803(6).9 The court need not do so today, however, because even
    9
    Contra United States v. Adefehinti, 
    510 F.3d 319
    , 326 (D.C. Cir. 2007)
    (incorrectly listing Tenth Circuit as having adopted the adoptive business records
    (continued...)
    -15-
    if Exhibit 2009 was erroneously admitted, the court concludes such admission was
    harmless as to both Irvin and Miller. See Collins, 
    575 F.3d at 1073
    .
    As to Irvin, the record shows the government did not rely in any way on Exhibit
    2009 to prove she participated in the Jordan Transaction and therefore its admission is
    harmless as to her convictions for Counts 5, 9, and 10. As to Miller, Exhibit 2009 was
    but one of many pieces of evidence indicating the valuation of the Jordan home was
    inflated. It was uncontested the home originally appraised at $200,000. Further, two
    witnesses testified Miller influenced the appraisal process because he was unhappy with
    this amount. Angela Parenza, Miller’s office manager, testified Miller directed her to fax
    HUD settlement statements for Miller-built homes or homes built on lots Miller owned to
    be used as comparables in the Jordan appraisal. She also testified Miller did not list his
    homes on the Multiple Listing Service because he frequently changed their sales prices to
    reflect their highest appraised value, and that keeping his homes off the MLS made it
    more difficult for appraisers to discover that all of the comparables were Miller-built
    homes. James Sparks’s testimony also linked Miller to the inflated appraisal on the
    Jordan property. He testified Miller was unsatisfied with the original amount he stood to
    receive from the bank based on the appraisal which placed the value of the Jordan home
    at $200,000. Sparks explained Miller had initially hoped Ms. Jordan would receive a
    bank loan of more than eighty percent of the original appraised value of the property, but
    9
    (...continued)
    doctrine.)
    -16-
    when it became apparent that would be impossible, he sought out a new appraisal in order
    to net what Miller wanted out of the sale. Moreover, Sparks testified that when the first
    appraiser he worked with would not return the desired $220,000 figure, Vanatta, who
    Sparks described as the “contact person” between himself and Miller, gave him the name
    of an appraiser who would return the desired value. Because, under the circumstances of
    this case, Exhibit 2009 is cumulative of other witness testimony, the court is not left in
    grave doubt as to whether it had a substantial influence on the outcome of the trial. See
    United States v. Clifton, 
    406 F.3d 1173
    , 1179 (10th Cir. 2005) (“Where the wrongly
    admitted evidence was cumulative of other properly admitted evidence, it is less likely to
    have injuriously influenced the jury’s verdict.” (quotation and alteration omitted).)
    Accordingly, the court concludes its admission was harmless.
    -17-
    B.     Challenges to the Sufficiency of the Evidence
    1.     Legal Standards
    Following the close of the government’s evidence, and again following the close
    of all evidence at trial, Miller and Irvin moved for entry of judgments of acquittal
    pursuant to Fed. R. Crim. P. 29, arguing the evidence was insufficient to sustain their
    convictions. After the jury returned its verdict, the district court issued a lengthy
    Memorandum and Order addressing the Rule 29 motion as it pertained to the counts on
    which guilt was found, ultimately denying relief. Miller and Irvin now raise largely the
    same arguments on appeal.
    In reviewing the sufficiency of the evidence and denial of a motion for judgment
    of acquittal, this court reviews the record de novo to determine whether, viewing the
    evidence in the light most favorable to the government, any rational trier of fact could
    have found the defendant guilty of the crime beyond a reasonable doubt. United States v.
    Wood, 
    207 F.3d 1222
    , 1228 (10th Cir. 2000). This court does not “weigh conflicting
    evidence or consider witness credibility, as these duties are delegated exclusively to the
    jury. Instead, we presume that the jury’s findings in evaluating the credibility of each
    witness are correct.” United States v. Evans, 
    318 F.3d 1011
    , 1018 (10th Cir. 2003)
    (quotation and citation omitted).
    -18-
    2.     Count 2 – The Lake Ozark Transaction
    In contrast with the majority of the charges, Count 2 alleged bank fraud by Miller,
    Vanatta, and Irvin in connection with their purchase, rather than sale, of a home. The
    home, located on Lake Ozark in central Missouri, was purchased with the intention that
    repairs and improvements would be made to the property, and it would then be sold for
    profit (hereafter the “Lake Ozark Transaction”). Miller and Irvin obtained the funds
    needed to purchase this property by cosigning on a mortgage loan issued by First National
    Bank of Camdenton, Missouri, with whom Miller had previously dealt successfully on
    several occasions. Because Irvin was a cosigner on the loan, First National Bank required
    her to submit certain financial information. Irvin provided the bank with what appeared
    to be official tax returns and a financial statement prepared by an accounting firm, but
    testimony at trial indicated these materials were fraudulent. First National Bank
    ultimately approved Miller’s and Irvin’s application for a $650,000 loan. In Count 2, the
    government charged that this transaction constituted bank fraud in violation of 
    18 U.S.C. § 1344
    . Although Miller was acquitted, Irvin was found guilty of Count 2.
    Bank fraud is defined as the knowing execution, or attempted execution, of “a
    scheme or artifice (1) to defraud a financial institution; or (2) to obtain any of the moneys,
    funds, credits, assets, securities, or other property owned by, or under the custody or
    control of, a financial institution, by means of false or fraudulent pretenses,
    representations, or promises.” 
    18 U.S.C. § 1344
    . The government elected to prosecute
    Count 2 solely under the second prong of § 1344, which we have clarified requires a
    -19-
    showing that the defendant’s false or fraudulent pretenses were “material.” United States
    v. Akers, 
    215 F.3d 1089
    , 1101 (10th Cir. 2000). Irvin’s sufficiency-of-the-evidence
    challenge focuses on this requirement, and she contends nothing in the record supports
    the jury’s finding that her representations to First National Bank were material. Instead,
    Irvin argues, the testimony of First National Bank loan officer Tom Niedergerke
    established without contradiction that Irvin’s representations played no role in the bank’s
    decision to issue the loan whatsoever, and therefore could not have been material.
    The record is, in fact, clear that the fraudulent financial information Irvin
    submitted to First National Bank had no impact on the ultimate issuance of the loan. As
    Mr. Niedergerke explained, his repeated successful dealings with Miller provided the sole
    basis of decision to recommend issuance of the mortgage loan to First National’s loan
    committee. Consequently, Irvin’s credit information was not even included in
    Niedergerke’s presentation to the loan committee, in which he explicitly stated that “[n]o
    financial emphasis [had been] placed on Hallie Irvin” in forming his recommendation.
    None of this, however, forecloses the jury from rationally concluding that Irvin’s
    representations were material.
    “In general, a false statement is material if it has a natural tendency to influence, or
    is capable of influencing, the decision of the decisionmaking body to which it was
    addressed.” Neder v. United States, 
    527 U.S. 1
    , 16 (1999) (quotation and alteration
    omitted); see also Akers, 
    215 F.3d at
    1102 (citing United States v. Rodriguez, 
    140 F.3d 163
    , 168 (2d Cir. 1998), for the proposition that a material misrepresentation is one
    -20-
    “capable of influencing a bank’s actions”). This definition, in referring to natural
    tendencies and capabilities, establishes materiality in the bank fraud context as an
    objective quality, unconcerned with the subjective effect that a defendant’s
    representations actually had upon the bank’s decision. Defining materiality in this way
    accords with the thrust of § 1344, which criminalizes the defendant’s “scheme or
    artifice,” rather than the completed fraud. Neder, 
    527 U.S. at 24, 25
     (“By prohibiting the
    ‘scheme to defraud,’ rather than the completed fraud, the [subjective] elements of reliance
    and damage would clearly be inconsistent with the statutes Congress enacted.”). It is
    therefore irrelevant whether Mr. Niedergerke or the First National Bank loan committee
    were in fact influenced by Irvin’s fraudulent representations. The pertinent inquiry is
    instead whether Irvin’s representations had the capability to so influence their decisions.
    By convicting Irvin of Count 2, the jury answered this question in the affirmative, and its
    finding is adequately supported by the record. Mr. Niedergerke’s requirement that Irvin
    submit her financial information as part of the loan application process, for example,
    indicates the information was at least potentially relevant to the bank’s decision, and
    Vanatta and Irvin’s decision to falsify the requested information indicates they believed it
    to be so. Furthermore, Mr. Niedergerke testified it would have been relevant to the
    bank’s decision to know that Irvin had submitted fraudulent tax returns. Because these
    facts, combined with testimony presented throughout the trial describing the significance
    of a loan applicant’s financial information, could lead a rational trier of facts to conclude
    Irvin’s representations to First National Bank were material, Irvin’s conviction on Count
    -21-
    2 is affirmed.
    3.   Count 4 – Money Laundering
    Count 4 charged the defendants with laundering the proceeds they received from
    the act of bank fraud charged in Count 2. As with Count 2, Irvin was found guilty while
    Miller was acquitted. The money-laundering statute under which Irvin was tried and
    convicted, 
    18 U.S.C. § 1957
    (a), forbids a person from engaging “in a monetary
    transaction in criminally derived property of a value greater than $10,000” in which the
    property “is derived from specified unlawful activity.” For Count 4, the “specified
    unlawful activity” was identified as the substantive act of bank fraud charged by the
    government in connection with the Lake Ozark Transaction. Accordingly, the jury was
    instructed that convicting any defendant on Count 4 required proof beyond a reasonable
    doubt of four elements: (1) the defendant engaged in a monetary transaction affecting
    interstate commerce; (2) the defendant knew the transaction involved criminally derived
    property; (3) the transaction involved property valued higher than $10,000; and (4) the
    property was derived from the act of bank fraud charged in connection with the Lake
    Ozark Transaction (i.e., the crime charged in Count 2). Irvin raises two challenges to the
    sufficiency of the evidence supporting her conviction on Count 4.
    Irvin first argues that because there is insufficient evidence of materiality to
    support her conviction for the predicate bank fraud charged in Count 2, there is
    necessarily insufficient evidence to support the derivative crime of money laundering
    charged in Count 4. See United States v. Lake, 
    472 F.3d 1247
    , 1260-61 (10th Cir. 2007)
    -22-
    (reversing conviction for money laundering where predicate act of wire fraud
    unsupported by sufficient evidence). As explained above, however, the record provides
    sufficient evidence of materiality to support the jury’s verdict against Irvin on Count 2.
    Irvin’s argument therefore rests on a mistaken premise and must be rejected.
    Irvin’s second argument challenges the sufficiency of the evidence supporting the
    jury’s required finding that her money laundering transaction involved “criminally
    derived property.” In the context of money laundering, “criminally derived property” is
    statutorily defined as “any property constituting, or derived from, proceeds obtained from
    a criminal offense,” and the jury was so instructed. 
    18 U.S.C. § 1957
    (f)(2). At the time
    of Irvin’s trial, however, the term “proceeds” was not defined by the statute.10 The
    defendants, relying on United States v. Santos, 
    553 U.S. 507
     (2008), persuaded the
    district court—over the government’s objection—to provide an additional instruction
    clarifying that the term “‘proceeds’ means profits” (the “Santos Instruction”).
    The government identified the criminally obtained proceeds laundered in Count 4
    to be the loan funds disbursed by First National Bank in connection with the Lake Ozark
    Transaction. The testimony of two witnesses at trial, however, indicated without
    contradiction that these loan funds did not constitute profit to the defendants because they
    10
    Congress has since amended the money laundering statute to define the
    term “proceeds” as “any property derived from or obtained or retained, directly or
    indirectly, through some form of unlawful activity, including the gross receipts of
    such activity.” Fraud Enforcement and Recovery Act of 2009, 
    123 Stat. 1617
    ,
    1618 (2009) (codified at 
    18 U.S.C. § 1956
    (c)(9)).
    -23-
    were immediately used to purchase property. That is, the Lake Ozark Transaction loan
    funds did not accrue to Irvin or Miller, but rather flowed away from them as payment for
    the Lake Ozark house. Because nothing else in the record indicates whether these loan
    funds constituted profits, and because the jury was instructed that “‘proceeds’ means
    profits,” Irvin contends no rational jury could have found she was involved in a
    transaction involving proceeds obtained from a criminal offense.
    Contrary to the Santos Instruction given by the district court, the term “proceeds,”
    as used in the version of § 1957 effective at the time of Irvin’s trial, is not strictly limited
    to profits. The district court’s initial11 conclusion to the contrary apparently stemmed
    from confusion surrounding the Supreme Court’s decision in Santos, in which a 4-1-4
    plurality held that in the context of an illegal gambling operation, proceeds means
    “profits” rather than “gross receipts.” 
    553 U.S. at 514
     (plurality opinion); 
    id.
     at 528 & n.7
    (Stevens, J., concurring in judgment); see also United States v. Thornburgh, 
    645 F.3d 1197
    , 1208-09 (10th Cir. 2011) (describing disagreement among the circuits regarding the
    significance of Santos). This court has since clarified that Santos’s holding must be
    confined to its factual setting, and that “‘proceeds’ means ‘profits’ for the purpose of the
    money laundering statute only where an illegal gambling operation is involved.”
    Thornburgh, 645 F.3d at 1209 (emphasis in original). In cases not involving illegal
    11
    In its order denying the defendants’ post-trial motions for acquittal, the
    district court later concluded that “the definition of proceeds as used in § 1957
    means gross receipts, notwithstanding that the Court [had earlier] instructed the
    jury [that proceeds means profits] out of an abundance of caution.”
    -24-
    gambling operations, “proceeds” means “gross receipts.” Id.; see also United States v.
    Van Alstyne, 
    584 F.3d 803
    , 814 (9th Cir. 2009); United States v. Bucci, 
    582 F.3d 108
    ,
    123-24 (1st Cir. 2009). Because Miller’s and Irvin’s criminal activities did not involve an
    illegal gambling operation, the latter, broader definition of proceeds applies.
    Although the jury instructions given below defined the crime of money laundering
    more stringently than necessary, they do not direct our consideration of the sufficiency of
    the evidence. The government’s timely objection to the “proceeds means profits”
    instruction prevented that instruction from becoming the law of the case. United States v.
    Williams, 
    376 F.3d 1048
    , 1051 (10th Cir. 2004).12 Consequently, our review must
    determine only whether sufficient evidence supports each of the elements actually
    required by law to sustain a conviction for money laundering under § 1957(a). See id. at
    1051-52 & 1052 n.3.
    Properly considered, the crime of money laundering requires proof beyond a
    reasonable doubt that (1) the defendant engaged in or attempted to engage in a monetary
    transaction; (2) in criminally derived property worth at least $10,000; (3) with knowledge
    12
    As explained in United States v. Williams, “[t]he doctrine of law of the
    case is an equitable remedy whose purpose is to prevent the government from
    arguing on appeal a position which it abandoned below.” 
    376 F.3d 1048
    , 1051
    (10th Cir. 2004). Thus, when the government fails to object to a proposed jury
    instruction “[t]he law of the case is applied to hold the government to the burden
    of proving each element of a crime as set out in [the given instruction] even if the
    unchallenged jury instruction goes beyond the criminal statute’s requirements.”
    
    Id.
     The rationale driving the doctrine of law of the case is inapplicable where, as
    here, the government did not abandon its objection to the Santos Instruction. 
    Id. at 1052
    .
    -25-
    that the property was derived from unlawful activity; and (4) the property was, in fact,
    derived from specified unlawful activity. Lake, 
    472 F.3d at 1260
    . “‘[C]riminally derived
    property’ means any property constituting, or derived from, proceeds obtained from a
    criminal offense,” 
    18 U.S.C. § 1957
    (f)(2) (2008), and “proceeds” means “gross receipts”
    in cases not involving illegal gambling operations. Because there is no question the funds
    disbursed by First National Bank could rationally be viewed as the gross receipts of the
    bank fraud charged in Count 2, and because there was ample evidence Irvin knowingly
    used those funds to purchase a $600,000 house in Lake Ozark, Missouri, her conviction
    on Count 4 is affirmed.
    4.     Count 5 – Money Laundering
    Just as Counts 2 and 4 formed a linked pair (bank fraud and money laundering), so
    too did Counts 3 and 5. Count 3 charged defendants with bank fraud in connection with
    their efforts to obtain a mortgage loan for Ms. Kerrie Jordan from First Horizon Home
    Loan Corporation (“First Horizon”), in violation of 
    18 U.S.C. § 1344
    . The government
    presented evidence that Ms. Jordan’s credit and financial history were insufficient to
    secure such a loan and the defendants therefore falsified her loan application submissions
    to increase her apparent credit-worthiness, inflating her monthly income and bank
    balances. Furthermore, the government presented evidence defendants had procured an
    artificially inflated appraisal of Ms. Jordan’s intended home. First Horizon ultimately
    agreed to provide mortgage financing to Ms. Jordan in the amount of $176,000, of which
    $123,931.82 was used to pay off an outstanding construction loan on Ms. Jordan’s new
    -26-
    home. In Count 5, the government argued this use of the loan proceeds constituted
    money laundering in violation of 
    18 U.S.C. § 1957
    . The jury acquitted all defendants of
    the substantive act of bank fraud charged in Count 3, but found Miller, Irvin, and Vanatta
    guilty of the Count 5 money laundering charge. Miller and Irvin now challenge the
    sufficiency of the evidence supporting their convictions on Count 5.
    To convict Miller and Irvin of money laundering in Count 5, the jury was required
    to find beyond a reasonable doubt that (1) the defendants knowingly engaged in a
    monetary transaction affecting interstate commerce; (2) knowing, at the time, that the
    transaction involved criminally derived property; (3) the transaction involved property of
    a value greater than $10,000; and (4) the property was derived from the specified
    unlawful activity of bank fraud in violation of 
    18 U.S.C. § 1344
    . Because the
    government identified the “specified unlawful activity” on which Count 5 rested as the
    crime charged in Count 3, the evidence must also be sufficient to support a rational jury’s
    conclusion the laundered money constituted the proceeds of that substantive act of bank
    fraud. See, e.g., Lake, 
    472 F.3d at 1260-61
     (reversing conviction for money laundering
    where insufficient evidence supported conviction on predicate offense of wire fraud). It
    is against the proof of this derivative requirement that Miller and Irvin primarily focus
    their challenge, but their arguments are quite different. 13
    13
    Miller and Irvin also challenge their money laundering convictions on
    Count 5 based on the Santos Instruction. For the same reasons the Santos
    Instruction argument was rejected in relation to Count 4, it is rejected in relation
    (continued...)
    -27-
    Miller contends that because the jury found him not guilty on Count 3, his
    conviction on Count 5 cannot stand. It is well-settled, however, that an inconsistent
    verdict is not a sufficient reason for setting a verdict aside. United States v. Powell, 
    469 U.S. 57
    , 64-66 (1984); United States v. Harris, 
    369 F.3d 1157
    , 1168 (10th Cir. 2004).
    “[C]onsistency in verdicts is not required because, where truly inconsistent verdicts have
    been reached, the most that can be said is that the verdict shows that either in the acquittal
    or the conviction the jury did not speak their real conclusions, but that does not show that
    they were not convinced of the defendant’s guilt.” United States v. McCullough, 
    457 F.3d 1150
    , 1161 n.2 (10th Cir. 2006) (quotations omitted) (concluding defendant’s
    acquittal on conspiracy charges did not require reversal of his conviction for using a
    telephone to facilitate the conspiracy). For this very reason, other courts have upheld
    convictions for money laundering even where there was an acquittal on the predicate
    offense. See, e.g., United States v. Richard, 
    234 F.3d 763
    , 768 (1st Cir. 2000)
    (concluding defendant’s acquittal on predicate offense of bankruptcy fraud did not require
    reversal of his conviction for money laundering). Miller’s acquittal on Count 3 does not
    impact his conviction on Count 5.
    Miller also challenges the evidence supporting the second required element of
    Count 5; namely, that he knew the transaction in question involved criminally derived
    property. He contends the only evidence he was aware of any wrongdoing in connection
    13
    (...continued)
    to Count 5.
    -28-
    with the Jordan Transaction came from Ms. Jordan’s testimony, in which she stated she
    complained to Miller about the increase in her sales price after the closing. Therefore,
    Miller reasons, the jury had no rational basis to conclude he had knowledge of the
    criminally derived nature of the loan proceeds prior to the laundering transaction. Miller
    understates the contents of the record. The government presented evidence the
    defendants surreptitiously increased the sales price for Ms. Jordan’s home from $200,000
    to $220,000 after it became apparent Ms. Jordan’s original submissions would not be
    sufficient to obtain financing. Other evidence indicated the $220,000 sales price was
    supported by an inflated appraisal which Miller had contributed to by providing the
    appraiser with Miller-built comparables. Finally, testimony indicated that Miller set the
    final sales price for his homes and otherwise “controlled everything” about his business.
    Viewing the evidence in the light most favorable to the government, a rational jury could
    conclude Miller was aware the proceeds from Ms. Jordan’s loan constituted criminally
    derived property given his personal involvement in the substantive act of bank fraud that
    procured them.
    Irvin’s attack on the sufficiency of the underlying bank fraud count is more
    nuanced. The government elected to submit Count 3 to the jury solely under the second
    prong of 
    18 U.S.C. § 1344
    , which prohibits the knowing execution, or attempted
    execution, of “a scheme or artifice . . . to obtain any of the moneys, funds, credits, assets,
    securities, or other property owned by, or under the custody or control of, a financial
    institution, by means of false or fraudulent pretenses, representations, or promises.”
    -29-
    (emphasis added). First Horizon, the lender to whom the defendants submitted Ms.
    Jordan’s falsified loan application, did not accept deposits and lacked a certificate of
    FDIC insurance. It therefore did not constitute a “financial institution” under federal law
    applicable at the time. See 
    18 U.S.C. § 20
     (2008). 14 Acknowledging this, the
    government sought to prove the loan funds disbursed by First Horizon constituted
    property “owned by, or under the custody or control” of First Tennessee National Bank
    (“First Tennessee”), First Horizon’s corporate parent and a “financial institution” for
    purposes of the statute. Irvin argues the government did not carry its burden of proving
    this necessary element of the bank fraud charge, and that her conviction on Count 5 must
    therefore fall.
    The evidence adduced at trial indicates First Horizon was a wholly owned
    operating subsidiary of First Tennessee. To fund residential single-family mortgage
    loans, like the one extended to Ms. Jordan, First Horizon would draw on a $5 billion line
    of credit made available to it by First Tennessee. First Horizon would then bundle such
    loans into mortgage-backed securities within thirty to forty-five days of their origination
    and sell them to investment banks on the secondary market. The proceeds from these
    sales were then used to repay First Horizon’s debts to First Tennessee. In deciding
    whether or not to issue a certain loan, First Horizon followed its own internal loan-
    14
    
    18 U.S.C. § 20
     has since been amended to include mortgage lending
    businesses like First Horizon within the definition of “financial institution.” See
    Fraud Enforcement and Recovery Act of 2009, 
    123 Stat. 1617
    , 1617 (2009)
    (codified at 
    18 U.S.C. § 20
    ).
    -30-
    application process and underwriting guidelines, and maintained its own team of due-
    diligence officers to confirm the security of its loans. First Tennessee played no role in
    First Horizon’s loan-issuance decisions. Finally, the evidence specific to Ms. Jordan’s
    mortgage loan identified First Horizon as the lender, and indicated First Horizon held the
    deed of trust on the Jordan property.
    Irvin concludes from these facts that Ms. Jordan’s mortgage loan was strictly the
    property of First Horizon, and was never owned by, or under the custody or control, of
    First Tennessee. Her reasoning in this regard appears correct, and First Tennessee’s
    corporate ownership of First Horizon does not change the analysis for “[a] corporate
    parent which owns the shares of a subsidiary does not, for that reason alone, own or have
    legal title to the assets of the subsidiary.” Dole Food Co. v. Patrickson, 
    538 U.S. 468
    ,
    475 (2003). Count 3, however, did not charge the defendants with scheming to obtain the
    financial instrument representing Ms. Jordan’s mortgage loan. Instead, the government
    charged them with “[s]ubmitting false loan application information for Kerrie Jordan,
    borrower, to First Horizon to obtain proceeds from First Tennessee Bank.” (emphasis
    added). The single relevant fact, then, is that the loan proceeds disbursed from First
    Horizon upon its decision to fund Ms. Jordan’s mortgage indisputably came from the
    credit line extended to it by First Tennessee. As former First Horizon litigation analyst
    Ed Hyne testified at trial, only once the underwriters at First Horizon made the decision to
    fund a particular loan would it draw against its line of credit with First Tennessee. A
    rational trier of fact would be perfectly justified in concluding that, until such time, the
    -31-
    funds comprising the line of credit were owned by, and in the custody and control of,
    First Tennessee.15
    Miller’s and Irvin’s convictions on Count 5 are supported by sufficient evidence
    and are affirmed.
    5.     Counts 9 & 10 – Criminal Contempt
    Counts 9 and 10 charged the defendants with violating 
    18 U.S.C. § 3148
    (c).16 That
    section provides, “[t]he judicial officer may commence a prosecution for contempt . . . if
    the person has violated a condition of release.” The condition of release implicated in
    Counts 9 and 10 was the requirement that Miller “not commit any offense in violation of
    federal, state or local law while on release” from custody in connection with the Miller I
    prosecution. In Count 9, the government alleged the defendants violated the law by
    15
    A different conclusion would perhaps be required had First Tennessee
    already loaned First Horizon the funds used for Ms. Jordan’s loan prior to their
    disbursement, for in that case First Tennessee could possibly be said to no longer
    own or control those funds. See, e.g., United States v. Bennett, 
    621 F.3d 1131
    ,
    1136-47 (9th Cir. 2010) (rejecting argument that FDIC-insured parent bank
    “owned” funds of wholly-owned subsidiary and reversing bank fraud conviction
    for insufficiency of evidence). But see United States v. Walsh, 
    75 F.3d 1
    , 9 (1st
    Cir. 1996) (upholding bank fraud conviction where directly defrauded entity was
    not a “financial institution,” but was a wholly-owned subsidiary of one, and
    where parent bank provided subsidiary’s operating capital and exercised control
    over subsidiary’s lending decisions).
    16
    The Second Superseding Indictment and Judgments in this case
    mistakenly state that Counts 9 and 10 were premised upon a violation of 
    18 U.S.C. § 1348
    (c). There is no such subsection. It is clear from the jury
    instructions and the context of the case that Counts 9 and 10 are in fact premised
    upon 
    18 U.S.C. § 3148
    (c).
    -32-
    engaging in the federal offense of bank fraud charged in Count 3. Likewise, in Count 10,
    the government alleged the defendants violated the law by engaging in the federal offense
    of money laundering charged in Count 5. Both Miller and Irvin were found guilty of
    Counts 9 and 10, and both challenge the sufficiency of the evidence underlying their
    convictions.
    Miller first contends his conviction on Count 9 must fail because it was
    specifically linked to the crime charged in Count 3. Because the jury acquitted him of the
    bank fraud charged in Count 3, he reasons, the government failed to prove a necessary
    element for conviction on Count 9. As discussed in the context of Miller’s challenge to
    Count 5, however, “consistency in verdicts is not required,” and an inconsistent verdict
    provides no reason for setting a conviction aside. Powell, 
    469 U.S. at 64-66
    . His
    conviction on Count 9 is affirmed.
    Miller also contends his conviction on Count 10 must fall because it was
    specifically linked to the crime charged in Count 5, which he believes was unsupported
    by sufficient evidence for the reasons discussed in Section III(B)(4), supra. That
    argument is, as demonstrated by the above analysis, flawed. Miller’s conviction on Count
    5 was supported by adequate evidence, and Miller’s conviction on Count 10 is therefore
    affirmed.
    Irvin contends nothing in the record indicates she was even aware of Miller’s
    conditions of release from Miller I, and that without proof of such knowledge the jury
    could not rationally have found that she knowingly aided and abetted Miller’s violation of
    -33-
    those conditions. See United States v. Green, 
    175 F.3d 822
    , 832 (10th Cir. 1999) (“The
    essence of aiding and abetting liability is proof the defendant willfully associated with a
    criminal venture and sought through some affirmative action to make that venture
    succeed.” (quotation omitted)). The government offers no direct evidence in
    contradiction of Irvin’s position. It instead argues the record contains circumstantial
    evidence that, when viewed in the light most favorable to the government and combined
    with all permissible inferences, supports the jury’s conclusion Irvin was aware of Miller’s
    conditions of release. Sparks’s testimony he found out about Miller’s conditions of
    release from Vanatta, for example, is cited by the government as sufficient evidence to
    support a rational person’s conclusion that Vanatta also informed Irvin of the conditions.
    Other evidence indicated business monitor Steve Browne had been to Miller’s office to
    examine certain records, and had also looked into the Lake Ozark Transaction, in which
    Irvin had played a role. The government urges us to conclude this, too, supports the
    jury’s conclusion that Irvin was aware Miller was subject to a condition of release that
    forbade him violating federal law.
    This evidence, without more, is insufficient to support the jury’s conclusion that
    Irvin knew of Miller’s conditions of release. “While the jury may draw reasonable
    inferences from direct or circumstantial evidence, an inference must be more than
    speculation and conjecture to be reasonable, and caution must be taken that the conviction
    not be obtained by piling inference on inference.” United States v. Jones, 
    44 F.3d 860
    ,
    865 (10th Cir. 1995) (quotations omitted). Both routes to proving Irvin’s knowledge
    -34-
    proposed by the government go beyond the realm of “reasonable inferences” and into
    impermissible speculation. The conclusion that “if Vanatta told Sparks, he must have
    told Irvin” rests on no logical basis whatsoever. Similarly, although Browne’s presence
    in the office and review of the Lake Ozark Transaction might have been noticed by
    Irvin,17 there is no logical basis to infer she was also made aware of the reasons for his
    activities. Furthermore, because there is no evidentiary basis for concluding that Irvin
    was aware of Miller’s conditions of release, Irvin’s convictions for Counts 9 and 10
    cannot be supported on the alternative basis of co-conspirator liability. The doctrine of
    co-conspirator liability operates to hold a defendant responsible for the crimes of his co-
    conspirators, if those crimes are committed to help advance the conspiracy and are within
    the reasonably foreseeable scope of the conspiracy. Pinkerton v. United States, 
    328 U.S. 640
    , 646-48 (1946). Here, because there is no basis to conclude Irvin was even aware of
    Miller’s conditions of release, she could not reasonably have foreseen that Miller would
    violate them, or that their violation was necessary to advance the conspiracy to which she
    had agreed. Irvin’s convictions for Counts 9 and 10 are not supported by sufficient
    evidence and are reversed.
    C.     Closing Arguments
    In its closing argument, the government made the following statements to the jury:
    There’s no question, ladies and gentlemen of the jury, that these folks
    17
    The evidence also indicated Irvin was rarely present in the office, making
    this inference itself somewhat tenuous.
    -35-
    targeted the subprime market, people who really had no ability to qualify
    for these homes. And they didn’t help society. They didn’t help the home
    buyer by putting them into a house that the buyer was unqualified for. They
    did just the opposite.
    They’re not responsible for everything that’s going on in the subprime
    market right now, but they are a portion of that.
    (emphasis added). Miller and Irvin contemporaneously objected to the emphasized
    language as unduly inflammatory, and cited it as grounds for a mistrial. The district court
    overruled this objection and denied the mistrial, reasoning that (I) the government’s
    commentary was justified in light of the evidence that Miller and Irvin were involved in
    the subprime mortgage market; (ii) the government had qualified its statement by
    indicating that defendants were not the sole cause of the subprime crisis; and (iii) any
    possible impact of the government’s commentary was mitigated by cautionary
    instructions. It later reminded the jury during final instructions that statements of counsel
    were not to be viewed as evidence.
    Miller and Irvin now repeat their contention that the government’s statements
    during closing arguments were improper commentary, designed to arouse the prejudice
    and passion of the jurors against them. They claim the government’s commentary was
    particularly prejudicial in light of the economic crisis gripping the nation at the time of
    the trial, and that there is sufficient reason to conclude it may have influenced the jury’s
    verdict, despite the cautionary jury instructions. Accordingly, Miller and Irvin request
    reversal of their convictions and a new trial.
    “Where the defendant contemporaneously moves for a mistrial on the basis of
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    prosecutorial misconduct, we review the denial of such a motion for abuse of discretion.”
    United States v. Taylor, 
    514 F.3d 1092
    , 1095 (10th Cir. 2008). This review requires
    determinations whether (1) the prosecutor’s statements were improper and (2) if so,
    whether the statements were “harmless beyond a reasonable doubt.” United States v.
    Martinez-Nava, 
    838 F.2d 411
    , 416 (10th Cir. 1988). Miller and Irvin cannot show the
    district court’s ruling constituted an abuse of discretion on either aspect of this inquiry.
    First, the government’s statements were not improper. Miller himself testified that his
    use of “creative financing” to obtain financing for unqualified buyers was helpful to
    society, and the government is entitled to considerable latitude in responding to such
    arguments during its closing. See, e.g., United States v. Villa-Chaparro, 
    115 F.3d 797
    ,
    803 (10th Cir. 1997); United States v. Janus Indus., 
    48 F.3d 1548
    , 1558 (10th Cir. 1995).
    Even if the challenged statements were improper, however, they did not deprive Miller
    and Irvin of a fair trial because they were harmless. In evaluating the harm or prejudice
    of an improper statement, this court must consider the extent of the misconduct; whether
    the district court took steps to mitigate the impact of the misconduct; and the role of the
    misconduct within the case as a whole. Martinez-Nava, 
    838 F.2d at 416
    . The conduct
    complained of here comprises two sentences made over the course of a month-long trial,
    in response to Miller’s own testimony. The district court took pains, during closing
    arguments and again during final instructions, to ensure the jury understood that
    statements of counsel did not constitute evidence. And the government’s case was
    otherwise devoid of any suggestion the defendants were responsible for the subprime
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    mortgage crisis. The government’s closing argument was therefore neither improper nor
    prejudicial, and the district court’s denial of a mistrial is affirmed.
    D.        Cumulative Effect of Errors at Trial
    Miller contends that, to the extent none of the above-described allegations of error
    provide sufficient grounds for reversal of his conviction, their cumulative prejudicial
    impact is such that he should nevertheless be entitled to a new trial.18 See United States v.
    Rogers, 
    556 F.3d 1130
    , 1144 (10th Cir. 2009) (“The purpose of cumulative error analysis
    is to address whether the cumulative effect of two or more individually harmless errors
    has the potential to prejudice a defendant to the same extent as a single reversible error.”
    (quotation omitted)). We disagree. Miller has identified, at most, two erroneous
    evidentiary rulings at the trial court level: the admission of Exhibit 1-2 (the summary
    chart) and the admission of Exhibit 2009 (the review appraisal)19. As set forth supra Part
    III.A.1., Exhibit 1-2 was harmless in relation to Miller’s convictions for counts 5,9, and
    10 because each of those counts related to a discrete instance of criminal conduct, i.e. the
    Jordan Transaction, which was less susceptible to misleading summarization than the
    counts for which the admission of Exhibit 1-2 was not harmless. Similarly, as set forth
    supra Part III.A.2., Exhibit 2009 was harmless in relation to Miller’s convictions for
    counts 5, 9, and 10 because it was but one of many pieces of evidence linking him to
    18
    Irvin does not join in Miller’s request for a cumulative-error analysis.
    19
    As set forth supra Part III.A.2, the court has assumed, without deciding,
    the admission of Exhibit 2009 was erroneous.
    -38-
    fraudulent conduct in connection with the Jordan Transaction. Even when both are
    excluded from consideration, the court has no grave doubt as to whether the verdict
    would have been the same because extensive witness testimony connects Miller to the
    Jordan Transaction and details the misrepresentations he made in connection with it. The
    court therefore declines to reverse Miller’s convictions on counts 5, 9, and 10 because of
    cumulative error.
    E.     Sentencing Challenges
    Miller challenges the sentence imposed upon him by the district court. He
    contends the district court improperly calculated the intended loss attributable to his
    criminal conduct and improperly applied sentencing enhancements for his use of
    sophisticated means and role as organizer or leader of the criminal enterprise. Because
    Miller’s conviction for conspiracy to commit bank fraud has been reversed, and because
    the conspiracy count was used to determine Miller’s offense level, his sentence must be
    recalculated on remand. See U.S.S.G. § 3D1.3(b) (directing the application of the
    “offense guideline that produces the highest offense level” in the case of counts grouped
    together pursuant to § 3D1.2(d) and involving offenses of the same general type). We
    therefore decline to pass upon the district court’s methodology in determining the
    intended loss flowing from his crimes. Similarly, the sophisticated means enhancement
    constituted a specific offense characteristic of the reversed conspiracy charge, and
    Miller’s challenge to its applicability need not be addressed at this time. See id. §
    2B1.1(b)(9)(C).
    -39-
    The reversal of Miller’s conviction on the conspiracy count does not, however,
    prevent the court from reviewing the applicability of the four-level Organizer/Leader
    enhancement provided under U.S.S.G. § 3B1.1(a), as that enhancement need not be
    linked to a specific crime of conviction. See id. § ch. 3, pt. B, introductory cmt.
    In evaluating the application of a Guidelines enhancement, we review
    factual findings for clear error, but to the extent the defendant asks us to
    interpret the Guidelines or hold that the facts found by the district court are
    insufficient as a matter of law to warrant an enhancement, we must conduct
    a de novo review.
    United States v. Hamilton, 
    587 F.3d 1199
    , 1222 (10th Cir. 2009) (quotation omitted). In
    its written order ruling on the parties’ objections to the Presentence Report, the district
    court listed what it considered to be the relevant conduct for purposes of the
    Organizer/Leader enhancement:
    Without Miller’s participation, there would have been no fraudulent loan
    transactions. Moreover, . . . testimony established that Miller was the
    organizer and leader, and described his business operations and motives . . .
    . Miller directed and led others to set prices based on false and inflated
    appraisals based solely on Miller-built homes, obtain loan approvals with
    false documentation that buyers were coached to create or that co-
    conspirators created for them, use mortgage brokers who participated in the
    fraudulent creation of loan applications and documentation . . . and that
    builders or Miller fronted down payment in cash or on paper, taking back a
    secret second mortgage that Miller made little effort to collect, preferring
    that buyers get it rolled into a new refinance later on.
    Miller contends that these findings are insufficient to support the district court’s
    application of the Organizer/Leader enhancement, a contention we review de novo.
    Sentencing Guidelines § 3B1.1(a) prescribes the application of a four-level
    increase to a defendant’s offense level “[i]f the defendant was an organizer or leader of a
    -40-
    criminal activity that involved five or more participants or was otherwise extensive.” A
    defendant may be ruled an organizer or leader upon consideration of
    the exercise of decision making authority, the nature of participation in the
    commission of the offense, the recruitment of accomplices, the claimed right to a
    larger share of the fruits of the crime, the degree of participation in planning or
    organizing the offense, the nature and scope of the illegal activity, and the degree
    of control and authority exercised over others.
    Id. § 3B1.1, cmt. n.4. Furthermore, the determination of a defendant’s leadership role
    should be premised on “all conduct within the scope of § 1B1.3 (Relevant Conduct),” id.
    ch. 3, pt. B, introductory cmt. Such conduct includes “all acts and omissions committed,
    aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
    defendant . . . that occurred during the commission of the offense of conviction [or] in
    preparation for that offense.” Id. § 1B1.3(a)(1)(A). The factual findings listed as the
    basis for the Organizer/Leader enhancement, although cited by the district court as
    conduct relevant to Miller’s conspiracy conviction, are equally relevant to Miller’s money
    laundering conviction on Count 5, which rested upon a predicate offense of bank fraud
    perpetrated in the same manner as the bank fraud charged in the conspiracy count. They
    are now adopted by this court as the conduct relevant to his money laundering conviction
    on Count 5 for purposes of determining whether Miller was an organizer or leader.20 See
    20
    The relevant conduct for application of the Organizer/Leader enhancement
    is a legal determination within the plenary review of the appellate court. See
    United States v. Caldwell, 
    585 F.3d 1347
    , 1349-50 (10th Cir. 2009) (“We review
    the district court’s factual finding supporting a determination of relevant conduct
    for clear error but review the ultimate determination of relevant conduct de
    (continued...)
    -41-
    United States v. Caldwell, 
    585 F.3d 1347
    , 1350 (10th Cir. 2009) (“[W]hen determining
    whether certain activity qualifies as relevant conduct under the Guidelines, similarity,
    regularity, and temporal proximity are the significant elements to be evaluated.”
    (quotation and alteration omitted)).
    So defined, Miller’s relevant conduct justifies the application of the four-level
    Organizer/Leader enhancement of § 3B1.1(a). The district court’s findings support the
    conclusion that the criminal activity involved five or more participants (Vanatta, Irvin,
    Sparks, Sandra Harris, and Miller himself) and that Miller (1) played a central role in the
    commission of their criminal activities; (2) recruited accomplices to the criminal activity,
    such as Vanatta; and (3) directed the criminal activity to the extent he retained final
    authority over sales prices. Rather than offer any argument negating the preceding
    conclusions, Miller merely complains that neither Sparks nor Middleton directly testified
    that he was their leader, and that Sparks admitted engaging in bank fraud independent of
    Miller’s involvement. Nevertheless, the indicia of leadership listed in the commentary to
    § 3B1.1(4) are present, and the district court did not err in applying the Organizer/Leader
    enhancement.
    IV.    Conclusion
    For the foregoing reasons, Miller’s conviction on Count 1, and Irvin’s convictions
    on Counts 1, 9, and 10 are REVERSED. Their remaining convictions are AFFIRMED.
    20
    (...continued)
    novo.” (quotation omitted)).
    -42-
    Furthermore, the district court’s application of the Organizer/Leader enhancement to
    Miller’s sentence is AFFIRMED. The matters are remanded to the district court for
    further proceedings not inconsistent with this opinion.
    -43-