United States v. Igor Grushko ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10438
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IGOR GRUSHKO,
DENIS GRUSHKO,
Defendants-Appellants.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20859-RS-2
____________________
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2 Opinion of the Court 20-10438
Before JORDAN, JILL PRYOR, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
Brothers Igor Grushko and Denis Grushko (the “Grushkos”)
appeal their convictions and the ensuing sentences on multiple
counts arising out of their conspiracy to commit access device
fraud. The Grushkos and a coconspirator, Vadym Vozniuk, used
stolen credit-card information to fraudulently obtain high-value
electronic goods from Target Corporation (“Target”). To carry
out the scheme and avoid detection, they purchased ordinary
household items on Target.com with the stolen credit-card infor-
mation; designated the orders for pickup and authorized non-exist-
ent third parties to pick up the merchandise; displayed fake drivers’
licenses bearing the names of these third parties to make the
pickups; returned the items in exchange for Target gift cards; and
ultimately redeemed the gift cards for high-value electronics. By
the time a federal grand jury indicted the conspirators, they had
made off with over $110,000 in fraudulently acquired merchandise.
After a jury trial, both Denis and Igor were convicted on all counts,
and they each received a 145-month total sentence for their fraud-
ulent scheme.
On appeal, the Grushkos argue that: (1) law enforcement
agents violated their Fourth Amendment rights by illegally enter-
ing their house after arresting them, rendering the subsequent
search conducted after obtaining a search warrant illegal; (2) the
district court impermissibly lowered the government’s burden of
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20-10438 Opinion of the Court 3
proof during voir dire, warranting a new venire panel; (3) the dis-
trict court erred in applying two-level enhancements to their base
offense levels for possessing device-making equipment; (4) the dis-
trict court erred in applying two-level aggravating-role enhance-
ments; (5) their total sentences were procedurally unreasonable be-
cause the district court failed to adequately explain their sentences,
it erroneously miscalculated the loss amounts at issue and it erro-
neously applied two-level obstruction of justice enhancements;
and, finally, (6) their sentences, overall, were substantively unrea-
sonable.
After thorough review of the record and with the benefit of
oral argument, we affirm.
I.
In late 2017, Target’s fraud prevention team met with a
United States Secret Service agent, Logan Workman, to brief the
government about a fraud scheme that was directed at Target’s
South Florida stores. Target investigators explained the workings
of the scheme to Agent Workman, detailing how a group of con-
spirators had been using stolen credit-card information, fake driv-
ers’ licenses, and a system of purchases and returns in order to
fraudulently obtain high-end electronics from Target. The investi-
gators also gave Workman surveillance footage that captured the
license plate number of a vehicle the suspects had used to commit
the fraud. Agent Workman traced the license plate number to Sixt
Rental Car. A fraud investigator at Sixt gave Workman documen-
tation showing that Igor Grushko had rented the vehicle in
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4 Opinion of the Court 20-10438
question and had supplied Sixt with his home address. The agent
ran a drivers’ license check and confirmed the address as Igor’s. He
further learned that Denis Grushko lived at the same home address
as Igor and that Vozniuk lived next door.
While Workman awaited the suspects’ indictment, he con-
ducted periodic surveillance of their neighboring homes. He ob-
served and took photographs of “some person” outside of the
Grushkos’ house, but he could not determine “with [ ] certainty” if
“that was Igor Grushko, Denis Grushko, or Vadym Vozniuk, or
another roommate that could have been possibly there as well.” In
November 2018, a federal grand jury sitting in the Southern Dis-
trict of Florida returned a three-count indictment against the
Grushkos and Vozniuk, charging all three men with conspiring to
commit access device fraud, in violation of 18 U.S.C. § 1029(b)(2)
(Count 1), and charging Igor and Vozniuk with using unauthorized
access devices, in violation of 18 U.S.C. § 1029(a)(2) (respectively,
Counts 2 and 3).
After the indictment was returned, the district court issued
arrest warrants for the Grushkos and Vozniuk. In preparation for
the execution of the warrants, Agent Workman created an opera-
tional plan that specified the team of agents chosen for the opera-
tion, the targets’ biographical information, and photographs of the
targets. For Igor, Workman attached a photograph obtained from
Igor’s Florida driver’s license records -- a source the agents “always
use” for their operational plans because a driver’s license photo-
graph best depicts a suspect’s facial features. For Denis, Agent
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20-10438 Opinion of the Court 5
Workman attached two photos, one from social media and the
other from Target’s surveillance footage, because Denis did not
have an available Florida driver’s license photograph.
At 5:30 a.m. on the day of the arrest, Workman met with the
arrest team -- none of whom had been involved in Workman’s
prior investigation into the scheme -- to distribute the operational
plan and “go over photographs” of the targets. Two agents were
then sent to conduct “presurveillance” at the Grushkos’ home, in
part to ensure that, if the Grushkos were to leave, the agents could
follow and arrest them. Upon arrival, the agents reported that
“two unknown males” were outside the residence smoking ciga-
rettes. They could not positively identify either man.
At around 6:00 a.m., the remainder of the arrest team
headed over to the residence and, upon arrival, “confronted the
two unknown males out front.” As the team approached the men,
they announced, “Police. Police. Let me see your hands. Police.
Get on the ground.” The team detained the men and “asked over
and over again what their names were,” but the men refused to
comply and instead laughed and asked for a lawyer. According to
the defendants, the agents then patted them down, removed their
wallets and cell phones, and placed the items on the curb. When
the agents demanded the code to the padlocked door of the house,
the men replied that they did not recall the passcode.
Although it turns out the men were, in fact, the Grushkos,
Agent Workman later explained that he was not “a hundred per-
cent certain” of their identities at the time because he had never
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6 Opinion of the Court 20-10438
seen either Igor or Denis in person. As for Igor, specifically, Work-
man noted that his appearance differed from his driver’s license,
“[b]ecause the hair on Igor Grushko was a lot longer” on the day
of his arrest.
After the unknown men refused to cooperate and the arrest
team was unable to positively identify them, the agents knocked
on the padlocked front door and announced their presence. Agent
Workman testified that the agents heard “voices and noise” com-
ing from inside the house, but no one opened the door. Suspecting
that the Grushkos or possibly Vozniuk may be inside, the agents
pried the door open to gain entry into the home. “[A]t th[at]
point,” the team still had not located all of the targets so the agents
conducted a protective sweep. During the sweep, they discovered
in plain view in a bedroom credit-card skimming devices and other
“access device making equipment.” The agents secured the resi-
dence and later obtained a search warrant based in part on the
items observed in plain view during the protective sweep.
During the search that followed, the agents seized a wide
variety of evidence, leading to additional charges in a nine-count
superseding indictment. The new charges against Denis and Igor
included possession of fifteen or more unauthorized access devices,
in violation of 18 U.S.C. § 1029(a)(3) (Count 4); possession of de-
vice-making equipment, in violation of 18 U.S.C. § 1029(a)(4)
(Count 5); production of a false identification document, in viola-
tion of 18 U.S.C. § 1028(a)(1) (Count 6); and aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 7–9).
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20-10438 Opinion of the Court 7
After a three-day trial, the jury found Denis and Igor
Grushko guilty on all counts. Following a sentencing hearing, the
district court sentenced each man to a total of 145 months’ impris-
onment (24 months’ imprisonment total for the aggravated iden-
tity theft counts, consecutive to the 121 months’ imprisonment to-
tal for the remaining counts), along with 3 years of supervised re-
lease, $122,383.36 in restitution (shared jointly and severally
amongst the defendants), and a special assessment. 1
This timely appeal followed. 2
II.
We review a district court’s denial of a motion to suppress
under a mixed standard, reviewing the trial court’s factual findings
for clear error and its application of the law to those facts de novo.
United States v. Lewis, 674 F.3d 1298, 1302–03 (11th Cir. 2012). We
review the legal correctness of a jury instruction de novo, but we
defer to the district court on questions of style and phrasing absent
an abuse of discretion. United States v. Prather, 205 F.3d 1265, 1270
1 The jury also found Vozniuk guilty on the two counts he was charged with
-- conspiracy to commit access device fraud and use of unauthorized access
devices -- and the district court sentenced him to a 27-month total sentence,
along with 3 years of supervised release, a special assessment, and the same
restitution amount shared with the Grushkos.
2 Although this is a two-defendant appeal, both brothers raise the same chal-
lenges to their convictions and their sentences, or adopt the other’s arguments
as to these issues. Accordingly, we address their arguments together.
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8 Opinion of the Court 20-10438
(11th Cir. 2000); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,
1329 (11th Cir. 1999). Meanwhile, we review a “district court’s de-
termination whether to strike an entire jury panel for manifest
abuse of discretion.” United States v. Trujillo, 146 F.3d 838, 842
(11th Cir. 1998).
When it comes to sentencing issues, we review de novo a
claim that the district court double counted enhancement levels.
United States v. Little, 864 F.3d 1283, 1291 (11th Cir. 2017). How-
ever, if a double-counting claim is not raised before the district
court, we review it only for plain error. United States v. Suarez,
893 F.3d 1330, 1335–36 (11th Cir. 2018). To establish plain error,
the defendant must show (1) an error, (2) that is plain, and (3) that
affected his substantial rights. United States v. Turner, 474 F.3d
1265, 1276 (11th Cir. 2007). If a defendant satisfies these conditions,
we may exercise our discretion to recognize the error only if it se-
riously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. We review a district court’s imposition of an ag-
gravating-role enhancement pursuant to § 3B1.1 for clear error.
United States v. Martinez, 584 F.3d 1022, 1025 (11th Cir. 2009).
And, finally, we review the district court’s application of the Sen-
tencing Guidelines de novo, but we review the reasonableness of a
sentence for abuse of discretion. United States v. Trailer, 827 F.3d
933, 935 (11th Cir. 2016); United States v. Newman, 614 F.3d 1232,
1235 (11th Cir. 2010).
III.
A.
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20-10438 Opinion of the Court 9
First, we are unpersuaded by the claim that law enforcement
officers violated the Fourth Amendment by illegally entering the
Grushkos’ home after arresting the brothers outside. The Fourth
Amendment provides that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. CONST. amend.
IV. Accordingly, searches and seizures inside a home without a
warrant are presumptively unreasonable. Payton v. New York, 445
U.S. 573, 586 (1980). However, under our case law, law enforce-
ment officers may enter a residence to execute an arrest warrant
for a resident of the premises if the totality of the facts and circum-
stances within the officers’ knowledge yielded a reasonable belief
that: (1) the location to be searched is the suspect’s dwelling; and
(2) the suspect is within the residence. United States v. Magluta, 44
F.3d 1530, 1535 (11th Cir. 1995). In other words, the officers need
not be “absolutely certain” that a suspect is at home before entering
to execute an arrest warrant. Id. at 1538.
When evaluating whether the officers’ beliefs are reasona-
ble, we are guided by “common sense factors.” United States v.
Bervaldi, 226 F.3d 1256, 1263 (11th Cir. 2000). The officers may
draw reasonable inferences and presumptions based on the time of
day or observations at the scene, and these presumptions can be
rebutted only by evidence to the contrary. See Magluta, 44 F.3d at1535–36. “If officers have made such presumptions and have a rea-
sonable belief that a suspect is present somewhere on the premises,
they may search the entire premises of a residence, until the suspect
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10 Opinion of the Court 20-10438
is found.” United States v. Williams, 871 F.3d 1197, 1201 (11th Cir.
2017). Further, “if the initial entry into the suspect’s residence is
lawful, the officers are permitted to seize any contraband in plain
view within the residence.” Id.Nevertheless, “[t]he Fourth Amendment demonstrates a
strong preference for searches conducted pursuant to a warrant[.]”
Ornelas v. United States, 517 U.S. 690, 699 (1996) (quotation marks
omitted). And it provides that “no [w]arrants shall issue, but upon
probable cause, supported by [o]ath or affirmation.” U.S. CONST.
amend. IV. In order to establish probable cause, the affidavit must
“state facts sufficient to justify a conclusion that evidence or con-
traband will probably be found at the premises to be searched.”
United States v. Martin, 297 F.3d 1308, 1314 (11th Cir. 2002) (quo-
tation marks omitted). Affidavits supporting search warrants are
presumptively valid. Franks v. Delaware, 438 U.S. 154, 171 (1978).
However, the Fourth Amendment would be violated if the warrant
is obtained by using a materially false statement made intentionally
or recklessly. Id. at 155–56, 171–72.
“Credibility determinations are typically the province of the
fact finder because the fact finder personally observes the testi-
mony and is thus in a better position than [this Court] to assess the
credibility of witnesses.” United States v. Ramirez-Chilel, 289 F.3d
744, 749 (11th Cir. 2002). Thus, we afford substantial deference to
the fact finder’s explicit and implicit credibility determinations.
Lewis, 674 F.3d at 1303. Indeed, when a law enforcement officer’s
testimony is in direct conflict with a defendant’s testimony, the
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20-10438 Opinion of the Court 11
“trial judge’s . . . choice of whom to believe is conclusive on [this
Court] unless the judge credits exceedingly improbable testi-
mony.” Ramirez-Chilel, 289 F.3d at 749.
Under the totality of circumstances presented, we cannot
say that the district court erred in denying the Grushkos’ motion
to suppress the evidence seized from the house pursuant to a search
warrant issued by a neutral magistrate. For starters, the record re-
flects that the agents had reason to believe that Igor was inside the
Grushkos’ home and, therefore, that they were authorized to enter
the home to execute his arrest warrant. As Agent Workman ex-
plained, on the morning of the arrest operation, he and his arrest
team arrived at the suspects’ house to find two “unknown males”
smoking cigarettes outside. After the team detained the unknown
men, they repeatedly asked the men to identify themselves, but the
men laughed and repeatedly refused. The agents then entered the
house to locate the suspects, and at that point, saw in plain sight
the evidence the Grushkos now seek to suppress. As it turned out,
the two unknown men outside were, in fact, the Grushkos, but
Agent Workman did not immediately recognize them, in part be-
cause he had never seen them before in person and they had re-
fused to identify themselves.
None of Agent Workman’s testimony about being unable to
identify Igor was inconsistent or incredible. Indeed, even though
the agents had pictures of Igor to use as a reference, his hair had
grown significantly since those pictures were taken. As Agent
Workman reported, at the time of the arrests, “the hair on Igor
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12 Opinion of the Court 20-10438
Grushko was a lot longer . . . [s]o at the time . . . he was not readily
recognizable based upon the photographs we had.” Further,
Workman explained that he gave the agents Igor’s driver’s license
photo to identify him -- as he always does -- because “it is directly
face on of a suspect and you can see all the facial features.” Agent
Workman added that he had never seen Denis or Igor up close and
in person.
As for the claim that Workman should have used Target sur-
veillance pictures of Igor to identify him, Igor had a beard in those
photos, his hair was buzz cut, and he was wearing glasses, none of
which was part of his look on the day of the arrest.
As for their claim that the agents could have checked for
identification when they restrained the men and removed their
wallets from their pockets, Agent Workman said that he was una-
ware that the wallets had been removed, and, in any event, because
the agents had detained the men outside only to effectuate the ar-
rest warrants, the agents were not allowed to search them for their
IDs. See United States v. Campa, 234 F.3d 733, 738 (11th Cir. 2000)
(holding that removal of a wallet and other bulging items from a
suspect’s person, which were “readily identifiable by touch as non-
weapons,” exceeded the limits of pat-down searches authorized by
Terry v. Ohio, 392 U.S. 1 (1968) (emphasis omitted)).
The Grushkos cite to instances where Agent Workman used
the word “custody” when referring to the agents’ restraint of the
brothers, in support of the argument that since the brothers were
“in custody,” the agents could have -- and should have -- opened
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20-10438 Opinion of the Court 13
the wallets to determine their identities. However, the substance
of Workman’s testimony makes it abundantly clear that the agents
had not placed the men in custody but instead had detained them
only to effect the arrest warrants. He described how the brothers
had been “[d]etained, taken down, placed on the ground to be put
in handcuffs so they’re out of the way because . . . . they were right
in front of door. They were right in the little front of the doorway
next to the garage. This [was] where everything [was] going on.
They need[ed] to be moved. . . . So they were placed into handcuffs
to secure the scene. And then if that was not them, afterwards they
would be free to go.” Thus, the agents could not have opened the
wallets to obtain any information. Nor is there any evidence that
the agents looked inside the wallets.
Workman’s entry into the house to locate Igor was also sup-
ported by his testimony that the agents heard noises inside the
home. The Grushkos argue that because only one woman was
found inside, this testimony was incredible. But, a television may
have been on, or the woman may have been talking on the tele-
phone. Nor is there any support for the broader claim that the law
enforcement officers orchestrated the scene to get inside the house
and search the place. The record suggests otherwise. As soon as
the agents entered the house and cleared it, they left -- never seizing
any of the device-making equipment that was laid out in front of
them -- and only returned later with a search warrant issued by a
neutral magistrate. All of this is to say that nothing about Work-
man’s testimony was “exceedingly improbable” and, therefore, the
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14 Opinion of the Court 20-10438
district court’s choice to believe Workman was not clearly errone-
ous, nor did it err in concluding that the agents reasonably believed
Igor was inside. See Ramirez-Chilel, 289 F.3d at 749 (citation omit-
ted).
We are likewise unpersuaded by the Grushkos’ claim that
the search warrant was obtained using an intentionally or reck-
lessly false statement. As we’ve detailed and as the district court
found, Workman credibly testified that he did not recognize Igor
outside, and the Grushkos have not otherwise shown that the
search warrant was based on “a false statement knowingly and in-
tentionally, or with reckless disregard for the truth[.]” Franks, 438
U.S. at 155–56. The Grushkos also have failed to show that Agent
Workman omitted any facts -- including details about Workman’s
investigation and the circumstances surrounding the Grushkos’ ar-
rests -- that would have altered the court’s probable cause finding.
Quite simply, there was no error in denying the motion to sup-
press.
B.
Similarly, we are unconvinced by the Grushkos’ challenge
to the district court’s statements during voir dire. In relevant part,
the district court said this to the voir dire panel at the beginning of
the trial:
[L]adies and gentlemen, has anyone ever seen those
television shows like CSI Miami, Law Enforcement,
Law and Order, those things as well?
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20-10438 Opinion of the Court 15
Well, let me say this about those shows. Sometimes
they will want to have you believe that you can un-
cover DNA from the bottom of the ocean of a ship
and say that the person was 6 feet 5, 330 pounds, and
he was born on this particular date, and ran 300 miles
as an athlete. Those shows are only for entertain-
ment only. All right? We don’t have their budget or
their imagination. This is real. So you can’t expect
the government to come in here with all types of
things, as well, fingerprints. Oh, we gonna have fin-
gerprints. We have to have that. That’s not required
to prove someone guilty.
...
They don’t have to bring in fingerprints or these types
of things. Do they help? Sure, they can help.
...
. . . They’re not required to bring in fingerprints, say
I gotta have fingerprints or certain types of things, as
well. They need to present whatever physical evi-
dence they decide to do so, but you have to make
your decision. You can consider those things, as well,
but the law doesn’t say a particular type of evidence
that the government has to introduce. That’s why I
said they have two types of ways, direct testimony
and circumstantial evidence. And you can consider
it.
Now, whatever evidence they present to you, if they
don’t prove to satisfy their burden of proof, to meet
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16 Opinion of the Court 20-10438
it beyond a reasonable doubt, you have to find the de-
fendant not guilty.
...
. . . Otherwise, if they prove it beyond a reasonable
doubt, of course, you are obligated to render a verdict
based on what they have proved beyond a reasonable
doubt based on the evidence.
...
Like, for example, witnesses. There’s no minimum
requirement as to how many witnesses. For example,
you go to a Miami Heat game. If the Heat didn’t win,
you need to bring in 18,000 witnesses to say what hap-
pened? No. You look at the quality of the witnesses,
not as to the quantity. I want to make sure you guys
understand that. There is no magic number, mini-
mum or maximum number of what needs to be pre-
sented. There is no minimum or maximum type of
evidence that must be presented, as well.
The government presents its case, and if they didn’t
prove it, fine. You come back and say, thank you.
Not guilty. And you go home back to your business.
Likewise, if they prove it beyond a reasonable doubt,
each essential element, each count, likewise you’re
obligated to return a verdict of guilty based on what
has been proven beyond a reasonable doubt, pro-
vided they met each and every element, as I just de-
scribed earlier.
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Based on these comments, the Grushkos say that the district court
impermissibly lowered the government’s burden of proof during
voir dire by suggesting to the jury that the absence of fingerprint
evidence would not create a reasonable doubt, and, thus, that the
court should have granted their motion to strike the entire panel.
“Generally, district courts have broad discretion in formu-
lating jury instructions provided that the charge as a whole accu-
rately reflects the law and the facts, and we will not reverse a con-
viction on the basis of a jury charge unless the issues of law were
presented inaccurately, or the charge improperly guided the jury
in such a substantial way as to violate due process.” Prather, 205
F.3d at 1270 (quotation marks omitted). Under the Due Process
Clause, the prosecution must prove every element of the offense
beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970).
Our threshold inquiry asks whether the challenged portion
of the instruction creates a mandatory presumption or a permissive
inference. Francis v. Franklin, 471 U.S. 307, 313–14 (1985). Man-
datory “presumptions violate the Due Process Clause if they re-
lieve the [government] of the burden of persuasion on an element
of an offense.” Id. at 314. Conversely, “[a] permissive inference
violates the Due Process Clause only if the suggested conclusion is
not one that reason and common sense justify in light of the proven
facts before the jury.” Id. at 314–15. Additionally, “[a] jury is pre-
sumed to follow the instructions given to it by the district judge.”
United States v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005).
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18 Opinion of the Court 20-10438
The district court did not abuse its discretion when it made
comments to the voir dire panel about the types of evidence that
might be seen on a television show. As we see it, the court’s dis-
cussion about television shows and the nature of forensic evidence
presented on them was unnecessary, unwise and should have been
avoided. Indeed, at that point in the trial, whether the government
would present fingerprint evidence or other forensic evidence re-
mained to be seen. Although this language was ill-advised, exam-
ining the instructions as a whole, we cannot say that the district
court committed reversible error. The court never suggested that
the government did not have to prove each of the elements of the
charged crimes, or that the government was relieved of its burden
of establishing each element beyond a reasonable doubt. We do
not read the district court’s words as having impermissibly created
a mandatory presumption in favor of the government, nor can we
say that its words entitled the jury to discount the defense’s argu-
ments in closing about whether the absence of fingerprint evidence
created a reasonable doubt.
Moreover, even when making the statements at issue, the
district court repeatedly discussed the government’s proper burden
of proof, three times telling the jury that the government must
prove its case “beyond a reasonable doubt.” The court also in-
structed the jury on the applicable burden of proof before opening
arguments.3 And, importantly, the district court’s formal
3 At that point, the court said:
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20-10438 Opinion of the Court 19
instructions at the end of the case unambiguously stated that “[t]he
[g]overnment must prove guilt beyond a reasonable doubt” and
properly defined “reasonable doubt.” The district court explained
in detail and in conformity with our law what a “reasonable doubt”
meant. See Eleventh Circuit Pattern Jury Instructions (Criminal
Cases), Basic Instruction 3. The jury is presumed to have followed
those instructions. See Ramirez, 426 F.3d at 1352. 4
As you know, this is a criminal case. There are three basic rules
about a criminal case that you must keep in mind.
First, the defendant is presumed innocent until proven guilty.
The superseding indictment against the defendant brought by
the government is only an accusation and nothing more. It is
not proof of guilt or anything else. The defendant, therefore,
starts out with a clean slate.
Second, the burden of proof is on the government until the
very end of the case. The defendant has no burden to prove
his innocence or to prove anything -- any evidence or to testify.
Since the defendant has the right to remain silent and may not
choose whether to testify -- and may choose whether to testify,
you cannot legally put any weight on a defendant’s choice not
to testify. It is not evidence.
Third, the government must prove the defendant’s guilt be-
yond a reasonable doubt. I will give you further instructions
on this point later. But bear in mind the level of proof required
is high.
4 When formally instructing the jury, the court said:
The Duty to Follow Instructions and the Presumption of In-
nocence
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20 Opinion of the Court 20-10438
Your decision must be based only on the evidence presented
during the trial. You must not be influenced in any way by
either sympathy for or prejudice against a Defendant or the
Government.
You must follow the law as I explain it -- even if you do not
agree with the law -- and you must follow all of my instruc-
tions as a whole. You must not single out or disregard any of
the Court’s instructions on the law.
The Superseding Indictment or formal charge against a De-
fendant isn’t evidence of guilt. The law presumes every De-
fendant is innocent. A Defendant does not have to prove his
innocence or produce any evidence at all. A Defendant does
not have to testify, and if a Defendant chose not to testify, you
cannot consider that in any way while making your decision.
The Government must prove guilt beyond a reasonable
doubt. If it fails to do so, you must find the Defendants not
guilty.
Definition of “Reasonable Doubt”
The Government’s burden of proof is heavy, but it doesn’t
have to prove a Defendant’s guilt beyond all possible doubt.
The Government’s proof only has to exclude any “reasonable
doubt” concerning a Defendant’s guilt.
A “reasonable doubt” is a real doubt, based on your reason and
common sense after you’ve carefully and impartially consid-
ered all the evidence in the case.
“Proof beyond a reasonable doubt” is proof so convincing that
you would be willing to rely and act on it without hesitation
in the most important of your own affairs. If you are con-
vinced that a Defendant has been proved guilty beyond a rea-
sonable doubt, say so. If you are not convinced, say so.
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20-10438 Opinion of the Court 21
On this record, the court’s instructions did not rise to the
level of mischaracterizing the government’s burden, nor otherwise
violating the Grushkos’ due process rights. We can discern no
abuse of discretion in the trial court’s decision to deny the motion
to strike the entire jury panel. See Sullivan, 508 U.S. at 279–81.
C.
The Grushkos also raise several challenges to their sen-
tences. We are unpersuaded.
First, the district court did not err in applying two-level en-
hancements to their base offense levels for possessing device-mak-
ing equipment. Under the guidelines, a defendant’s offense level is
increased by two if the offense conduct involved the possession or
use of any device-making equipment or authentication feature.
U.S.S.G. § 2B1.1(b)(11)(A). As we’ve said many times, “[i]mpermis-
sible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a
kind of harm that has already been fully accounted for by applica-
tion of another part of the Guidelines.” United States v. Suarez,
893 F.3d 1330, 1336 (11th Cir. 2018) (quotation marks omitted). On
the other hand, double counting is permissible where: (1) the Sen-
tencing Commission intended the result; and (2) each guideline sec-
tion in question concerns a conceptually separate consideration re-
lated to sentencing. Id. We presume that the Sentencing Commis-
sion intended to apply separate guideline sections cumulatively un-
less we are specifically directed otherwise. Id. Additionally, the
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22 Opinion of the Court 20-10438
application of multiple guidelines sections can be triggered by the
same conduct. Id. at 1337.
In this case, the two-level enhancement pursuant to §
2B1.1(b)(11)(A) was properly applied to the brothers’ sentences. 5
The defendants do not dispute that they possessed or used any de-
vice-making equipment or authentication feature. Rather, the
Grushkos appear to be saying that the district court’s application of
the § 2B1.1(b)(11)(A) two-level enhancement punished them twice
for the same conduct, ostensibly because they were each convicted
of possessing device-making equipment in violation of 18 U.S.C. §
1029(a)(4). However, impermissible double counting does not oc-
cur when a substantive conviction informs the district court’s ap-
plication of a guideline enhancement.
Nor can we say that the district court clearly erred in apply-
ing two-level aggravating-role enhancements. Under the Sentenc-
ing Guidelines, a defendant’s offense level may be enhanced by two
levels if he was an organizer, leader, manager, or supervisor in any
criminal activity that involved less than five participants. See
U.S.S.G. § 3B1.1(c). As we’ve interpreted this provision, “[t]he
5 Although the Grushkos objected to the two-level enhancement pursuant to
§ 2B1.1(b)(11)(A) before the district court, they did not argue that it constituted
impermissible double counting. Accordingly, we review the claim for plain
error. See Suarez, 893 F.3d at 1336. However, it does not matter which stand-
ard of review we apply since there was no error, plain or otherwise, when the
district court applied the two-level enhancement pursuant to §
2B1.1(b)(11)(A).
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20-10438 Opinion of the Court 23
assertion of control or influence over only one individual is enough
to support a § 3B1.1(c) enhancement.” United States v. Phillips,
287 F.3d 1053, 1058 (11th Cir. 2002) (quotation marks omitted).
Moreover, “[t]he defendant does not have to be the sole leader of
the conspiracy for the enhancement to apply, and the decision of
the district court on this issue is entitled to deference on appeal.”
United States v. Barrington, 648 F.3d 1178, 1200 (11th Cir. 2011).
When determining whether a defendant is an organizer or
leader, we consider:
[(1)] the exercise of decision making authority, [(2)]
the nature of participation in the commission of the
offense, [(3)] the recruitment of accomplices, [(4)] the
claimed right to a larger share of the fruits of the
crime, [(5)] the degree of participation in planning or
organizing the offense, [(6)] the nature and scope of
the illegal activity, and [(7)] the degree of control and
authority exercised over others.
U.S.S.G. § 3B1.1 cmt. n.4. However, there is no requirement that
all the factors must be present for the enhancement to apply. Mar-
tinez, 584 F.3d at 1026.
The record supports a finding that both Denis and Igor were
the organizers and the leaders of the scheme to defraud Target.
Their scheme involved another participant, Vadym Vozniuk,
whom the Grushkos instructed how to install skimmer devices on
ATM machines, and they provided him with access devices to pur-
chase items. Further, the Grushkos paid Vozniuk using a portion
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24 Opinion of the Court 20-10438
of their proceeds, which suggests that they claimed a larger share.
See U.S.S.G. § 3B1.1 cmt. n.4. This is more than enough to estab-
lish that the Grushkos had “control or influence over” Vozniuk.
See Phillips, 287 F.3d at 1058 (quotation marks omitted).
There was considerably more evidence found by law en-
forcement at the Grushkos’ house that illustrated their aggravating
roles in the scheme, including: (1) a spreadsheet that tracked every
fraudulent pickup and return at Target; (2) a document called
“all_target.txt” that contained a list of potential Target stores to hit;
(3) an assortment of planning documents like “Basic Carding Tuto-
rial 1.txt” and “How not to get caught Car.txt,” that allowed the
Grushkos to learn the craft and attempt to avoid detection; and (4)
a vast collection of identity-theft materials and device-making
equipment that allowed the Grushkos and their coconspirator to
commit the fraud. And, significantly, there was no evidence that
Vozniuk was responsible for the access devices recovered from the
Grushkos’ home.
In short, the record demonstrates the Grushkos’ deep in-
volvement in the planning and organization of the fraudulent
scheme and their vital role in the commission of the offenses, as
well as their involvement in decision making and recruitment, all
of which was far more extensive than the role played by Vozniuk.
See U.S.S.G. § 3B1.1 cmt. n.4. To the extent the brothers argue
that they could not both receive aggravating-role enhancements
since they were equally involved, a defendant eligible for an aggra-
vating-role enhancement “does not have to be the sole leader of
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20-10438 Opinion of the Court 25
the conspiracy for the enhancement to apply.” Barrington, 648
F.3d at 1200. The district court did not clearly err in applying the
aggravating-role enhancements to the brothers’ offense levels.
The Grushkos next argue that their sentences were proce-
durally unreasonable because the district court failed to adequately
explain them. In reviewing a sentence for procedural reasonable-
ness, we must “‘ensure that the district court committed no signif-
icant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as man-
datory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any deviation
from the Guidelines range.’” United States v. Pugh, 515 F.3d 1179,
1190 (11th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). 6 When explaining a sentence, the district court must “set
forth enough to satisfy [us] that [it] has considered the parties’ ar-
guments and has a reasoned basis for exercising [its] own legal
6 The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the sen-
tence imposed to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense; (3) the need for the
sentence imposed to afford adequate deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the pertinent policy statements of the Sentencing Com-
mission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims. 18 U.S.C. § 3553(a).
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26 Opinion of the Court 20-10438
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356
(2007). The district court is not required to discuss each factor in-
dividually if it acknowledges that it considered the defendant’s ar-
guments and the § 3553(a) factors. United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008).
The court adequately explained the 145-month sentences
that it imposed on Igor and Denis. Among other things, the district
court said that it had “considered the statements of all parties, the
Presentence report which contains the advisory guidelines and the
statutory factors set forth in 18 U.S.C. Section 3553.” See Gonzalez,
550 F.3d at 1324. It added that “[t]he objections raised by the de-
fense have all been overruled.” Further, the trial court remarked
that the defendants had engaged in “serious,” “egregious and harm-
ful and widespread conduct,” they had shown “no remorse, none
whatsoever,” and they had been caught with the access-devices in
their possession, suggesting no end to their scheme. In sum, the
district court indicated that the defendants’ total sentences were
needed to (1) reflect the seriousness of the offenses, promote re-
spect for the law, and provide just punishment for the offense, (2)
deter criminal conduct, and (3) protect the public; and it ordered
restitution, which recognized (4) the need to provide restitution to
the victims. See 18 U.S.C. § 3553(a)(2)(A)–(C), (a)(7).
The defendants also claim that the district court erred in cal-
culating the amount of loss attributable to each of them, and in ap-
plying obstruction-of-justice enhancements to both of them. De-
spite any possible merit in these arguments, we cannot ignore that
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20-10438 Opinion of the Court 27
the district court explicitly stated that it would have imposed the
same total sentences even if it had decided the disputed enhance-
ment issues in favor of the defendants. Under our precedent, “we
need not review [a sentencing] issue when (1) the district court
states it would have imposed the same sentence, even absent an
alleged error, and (2) the sentence is substantively reasonable.”
United States v. Goldman, 953 F.3d 1213, 1221 (11th Cir. 2020);
United States v. Keene, 470 F.3d 1347, 1349–50 (11th Cir. 2006).
“Our rationale for this policy is to avoid ‘pointless reversals
and unnecessary do-overs of sentence proceedings.’” United States
v. McLellan, 958 F.3d 1110, 1116 (11th Cir. 2020) (quoting Keene,
470 F.3d at 1349). In other words, “it would make no sense to set
aside [a] reasonable sentence and send the case back to the district
court [because of an error in calculating the Sentencing Guidelines
range] since it has already told us that it would impose exactly the
same sentence, a sentence we would be compelled to affirm.”
Keene, 470 F.3d at 1350; United States v. Henry, 1 F.4th 1315, 1327
(11th Cir. 2021). Notably, Keene applies only when -- as here -- the
complained-of errors are preserved, so that the district court is
aware of the dispute about the guideline application, and has the
chance to determine in the first instance that the sentence is proper
regardless of any error. Keene, 470 F.3d at 1349. This renders any
error harmless. Id.So, in situations like this one -- when a district court states
that the sentence it has imposed would not have changed even
with a different guideline calculation -- we assume there was an
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28 Opinion of the Court 20-10438
error, reduce the guideline range according to the way the defend-
ant argued, and analyze whether the sentence would be substan-
tively reasonable under that guideline range. Id. at 1349–50. The
defendant has the burden of “prov[ing] that his sentence is unrea-
sonable in light of the record and § 3553(a).” Id. Remand is not
appropriate if we determine that the district court’s error did not
impact its ultimate sentence and the ultimate sentence is substan-
tively reasonable. Id. at 1348–50.
Because of the district court’s Keene statement in this case,7
we need only consider the substantive reasonableness of the
7 At the sentencing hearing, the government expressly invoked Keene and
asked the district court to “clearly indicate[] that it would have imposed the
same sentence, regardless of whether the Court had decided in the defendant’s
favor for any sort of sentencing enhancement so long that sentence is [reason-
able].” (Emphasis added). The district court responded, “Correct. Whether
the enhancement was in favor or not, my sentence will remain the same.”
And when the government sought clarification after the court indicated that a
121-month concurrent sentence as to the non-aggravated identity theft counts
(Counts 1, 4, 5 and 6) was not at the high-end of the guidelines range, the court
said, “I misspoke, but still I think the sentence, even what I imposed is suffi-
cient, and necessary to impose based on their role and conduct in this case.
So, I’m maintaining that sentence as the one I’m going to impose.” (Emphasis
added). We read this language as making it clear that the district court in-
tended to impose the same sentence, regardless of any error in the guidelines
calculation, thereby triggering our analysis in Keene. Compare with United
States v. Eason, 953 F.3d 1184, 1195 n.8 (11th Cir. 2020) (declining to apply
Keene where the district court “never ‘state[d] on the record’ that ‘the en-
hancement made no difference to the sentence it imposed’”) (citation omit-
ted); United States v. Barner, 572 F.3d 1239, 1248 (11th Cir. 2009) (declining to
apply Keene where the district court said it was choosing to apply a guidelines
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20-10438 Opinion of the Court 29
brothers’ sentences, assuming their proposed lower guideline
ranges to be the applicable ones. Because Denis did not propose a
proper guideline range, we’ll use Igor’s estimation that the correct
amount of loss was $165,000, and, therefore, that the brothers’
guideline ranges each would have been 51 to 63 months’ imprison-
ment for the first set of counts, plus the 24-month mandatory con-
secutive sentence for the last set of counts. See U.S.S.G. Ch. 5, Pt.
A, Sentencing Table. Thus, to determine whether their sentences
were reasonable under Keene, we assume there was some sentenc-
ing error, we assume each brother’s total guidelines range was 75
to 87 months’ imprisonment, and we then ask whether the sen-
tences imposed, once scrubbed of the errors, were substantively
reasonable under § 3553(a). See Keene, 470 F.3d. at 1349.
In considering the substantive reasonableness of a sentence,
we look at the “totality of the circumstances.” Pugh, 515 F.3d at
1190 (quotation marks omitted). The district court’s sentence must
be “sufficient, but not greater than necessary to comply with the
purposes” listed in 18 U.S.C. § 3553(a). The court must consider all
of the § 3553(a) factors, but it may give greater weight to some fac-
tors over others or even attach great weight to a single factor -- a
decision that is within its sound discretion. United States v.
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015); United States
v. Kuhlman, 711 F.3d 1321, 1327 (11th Cir. 2013).
sentence and never said it would have imposed the same sentence if there
were errors in the guidelines calculation).
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30 Opinion of the Court 20-10438
However, a sentence may be substantively unreasonable
when a court unjustifiably relies on any single § 3553(a) factor, fails
to consider pertinent § 3553(a) factors, bases the sentence on im-
permissible factors, or selects the sentence arbitrarily. Pugh, 515
F.3d at 1191–92. A sentence that suffers from one of these symp-
toms is not per se unreasonable; rather, we must examine the to-
tality of the circumstances to determine the sentence’s reasonable-
ness. Id. at 1192. “[W]e will not second guess the weight (or lack
thereof) that the [court] accorded to a given [§ 3553(a)] factor . . .
as long as the sentence ultimately imposed is reasonable in light of
all the circumstances presented.” United States v. Snipes, 611 F.3d
855, 872 (11th Cir. 2010) (quotation marks, alteration and emphasis
omitted). We will vacate a sentence only if we are left with the
“definite and firm” conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that is outside the range of reasonable sentences dic-
tated by the facts of the case. United States v. Irey, 612 F.3d 1160,
1190 (11th Cir. 2010) (en banc) (quotation marks omitted).
Additionally, although the district court has discretion to im-
pose a sentence outside of the guideline range, a major variance
requires a more significant justification than a minor one. Id. at
1196. However, we do not presume that a sentence outside of the
guideline range is unreasonable and give deference to the district
court’s decision that the § 3553(a) factors support its chosen sen-
tence. Pugh, 515 F.3d at 1190. Further, a sentence imposed below
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20-10438 Opinion of the Court 31
the statutory maximum penalty is an indicator of a reasonable sen-
tence. Gonzalez, 550 F.3d at 1324.
Here, we cannot say that the district court’s imposition of a
145-month total sentence on each brother was substantively unrea-
sonable. For starters, the district court gave a sufficient explanation
for the sentences it imposed. As we’ve noted, the district court ex-
plicitly acknowledged that it had considered both brothers’ argu-
ments and the § 3553(a) factors prior to sentencing. The district
court also stressed the breadth and harmfulness of the brothers’
scheme, that they had been caught while the scheme was still going
on, and that they had failed to show any remorse, “none whatso-
ever.” In so doing, the court indicated that its total sentences
needed to (1) reflect the seriousness of the offenses, promote re-
spect for the law, and provide just punishment; (2) deter criminal
conduct; (3) protect the public; and (4) provide restitution to the
victims. See 18 U.S.C. § 3553(a)(2)(A)–(C), (a)(7). As for the
Grushkos’ argument that the district court imposed its sentences,
based, in part, on an unproven number of access devices, we read
the record as having provided many other reasonable bases for the
district court’s decision, and, in any event, the brothers do not dis-
pute that over 300 access devices were recovered, which remains a
high number. And to the extent the district court gave considera-
ble weight to the need for the brothers’ total sentences to deter fu-
ture criminal conduct, it was well within the court’s discretion to
do so. Kuhlman, 711 F.3d at 1327.
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32 Opinion of the Court 20-10438
Looking at the record as a whole, we are satisfied that their
total sentences were substantively reasonable. See Keene, 470 F.3d
at 1349–50. As the government explained at sentencing, the
Grushkos engineered “an incredibly widespread and sophisticated
scheme” against Target and “r[an] a massive access device fraud,
credit card fraud and identity theft factory from their [home].” See
18 U.S.C. § 3553(a)(1) (nature and circumstances of the offense).
Indeed, “[t]his was not a one-time incident. This was not a lapse of
judgment. . . . They were literally manufacturing the skimming
devices of the type that are used by criminals in this district con-
stantly to steal from Floridians, to steal from people in our com-
munity.” See 18 U.S.C. § 3553(a)(1)–(2) (characteristics of the de-
fendants, and the need to reflect the seriousness of the offense, de-
ter criminal conduct, and protect the public). And even once they
were caught, the Grushkos showed “no remorse or contrition
whatsoever.” See 18 U.S.C. § 3553(a)(2) (need to promote respect
for the law, provide just punishment, deter criminal conduct, and
protect the public).
Through their scheme, the Grushkos committed a set of of-
fenses, which “in [the South Florida] community is incredibly wide-
spread, underscoring the need for deterrence,” especially since it is
“incredibly hard to catch perpetrators of this type of crime in part
because of the type of sophisticated means of concealment used by
individuals such as the Grushko brothers to perpetrate and get
away with their crimes.” See 18 U.S.C. § 3553(a)(2)(B), (C) (need to
promote deterrence and protect the public from further crimes of
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20-10438 Opinion of the Court 33
the defendants). Notably, these are the types of offenses that, even
“if the [Grushkos] were removed from this community,” they
could continue committing elsewhere. See 18 U.S.C. §
3553(a)(2)(C) (need to protect the public from further crimes of the
defendants).
It’s also worth noting that the total 121-month sentences at-
tributable to Counts 1 and 4 through 6 were well below the statu-
tory maximum of 180 months’ imprisonment for two of those
counts (Counts 5 and 6). Likewise, the 24-month sentences for
Counts 7 through 9 were well below the statutory maximum of 72
months’ imprisonment. All of this suggests to us that the brothers’
total sentences were substantively reasonable. See Gonzalez, 550
F.3d at 1324. Thus, even if we assume that the district court erred
in calculating the loss amount and in applying the obstruction-of-
justice enhancements, those errors are harmless under our decision
in Keene. The district court imposed an otherwise substantively
reasonable total sentence for each defendant.
AFFIRMED.
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20-10438 Jordan, J., Concurring 1
JORDAN, Circuit Judge, Concurring.
I join the court’s opinion in full. I write separately about the
district court’s comments to the jury panel during voir dire.
Among other things, the district court told the jury panel the
following during voir dire:
◆ “[H]as anyone seen those television shows like CSI Mi-
ami, . . . Law and Order. . . ? Those shows are for entertainment
only. . . . We don’t have their budget or their imagination. This is
real. So you can’t expect the government to come in here with all
types of things, as well, fingerprints. Oh, we gonna have finger-
prints. We have to have that. That’s not required to prove some-
one guilty. . . . They don’t have to bring in fingerprints or these
types of things.”
◆ “There’s no minimum requirement as to how many wit-
nesses. For example, you go to a Miami Heat game. If the Heat
didn’t win, you need to bring in 18,000 witnesses to say what hap-
pened? No. You look at the quality of the witnesses, not as to the
quantity. I want to make sure you guys understand that.”
Like my colleagues, I do not believe that the district court’s
remarks required the striking of the jury panel. The reason is that
the district court—during voir dire, before opening statements, and
in its final instructions—repeatedly told the jury that the govern-
ment bore the burden of proving the Grushkos guilty beyond a rea-
sonable doubt and explained what reasonable doubt meant. Those
USCA11 Case: 20-10438 Date Filed: 09/23/2022 Page: 35 of 37
2 Jordan, J., Concurring 20-10438
instructions eliminated the possibility that the trial jury believed
that the government had a lower burden of proof.
Though the comments did not constitute reversible error,
they were in my view improper. As the Supreme Court said more
than a century ago, “[i]t is obvious that under any system of jury
trials the influence of the trial judge on the jury is necessarily and
properly of great weight, and that his lightest word or intimation is
received with deference, and may prove controlling.” Starr v.
United States, 153 U.S. 614, 626 (1894). What was true then re-
mains true today, and here the district court’s comments were in-
appropriate or at the very least unwise.
In some cases, it may be acceptable for the prosecution to
explain at voir dire that the government cannot always present fo-
rensic evidence of the sort depicted in television, cable, or the mov-
ies. See, e.g., United States v. Jefferson, 432 F. App’x 382, 388 (5th
Cir. 2011). But it was wrong, in my view, for the district court to
make that same point while including itself in the collective “we”
along with the government (“We don’t have their budget or their
imagination.”). The jury panel, which was just being introduced
to voir dire in a federal criminal case, could have thought less of
the government’s burden of proof because it was being told by the
district court that fingerprints and other forensic evidence were un-
necessary. Cf. Griggs v. State, 230 So.3d 943, 947 (Fla. 1st DCA
2017) (trial court’s comments, including that lack of physical evi-
dence “doesn’t mean there wasn’t a crime,” were problematic be-
cause they “reinforced a prosecution-friendly view” of the case
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20-10438 Jordan, J., Concurring 3
against the defendant). And the panel could have believed, if only
for a short while, that the district court was somehow involved in
the investigation and prosecution of the Grushkos. That is not a
crazy supposition. Not all citizens understand how our criminal
justice system works, and jury selection may be their first experi-
ence in a courtroom. Our system, moreover, is not used world-
wide. Some civil law jurisdictions use investigating magistrates
whose job it is to find and analyze the evidence, determine whether
formal charges should be filed, decide which persons should be
charged, and prepare a dossier with findings. See, e.g., Mary C.
Daly, Some Thoughts on the Difference in Criminal Trials in the
Civil and Common Law Systems, 2 J. Inst. Study of Legal Ethics 65,
62-72 (1999) (describing the French criminal justice system and its
use of investigating magistrates).
The same goes for the comment about the number of wit-
nesses. To explain that no magical number of witnesses are neces-
sary on a given point, the district court used an example of the Mi-
ami Heat, a professional basketball team, losing a game in front of
18,000 fans. It noted that one would not need all of those in attend-
ance as witnesses to prove that the Heat lost. The example seems
relatively harmless on the surface, but is more problematic when
one realizes that it uses an objectively verifiable fact—a loss by the
Heat—that cannot be denied. In criminal trials, not all evidence is
so clear or undisputed. By juxtaposing the need for less witnesses
to prove the Heat’s undeniable defeat, the district court risked sug-
gesting that a single witness or a few witnesses—despite the quality
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4 Jordan, J., Concurring 20-10438
of the testimony—could establish a given proposition beyond a rea-
sonable doubt.
I understand that the district court was trying to use images
and concepts that would have registered or connected with pro-
spective jurors in the 21st century. But sometimes using the tried
and true—even if boring and unimaginative—is a better and safer
alternative. See, e.g., Benchbook for U.S. District Judges §§ 2.06 &
2.07 (Fed. Jud. Ctr. 6th ed. 2013).