United States v. Tucker ( 2003 )


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  •                                                                  United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                           UNITED STATES COURT OF APPEALS
                                For the Fifth Circuit                     September 5, 2003
    
                                                                       Charles R. Fulbruge III
                                                                               Clerk
                                        No. 02-41104
    
    
    
                             UNITED STATES OF AMERICA,
    
                                                              Plaintiff-Appellee,
    
                                           VERSUS
    
    
                                  RICHARD JAMES TUCKER,
    
                                                              Defendant-Appellant.
    
                   _____________________________________________
    
                    Appeal from the United States District Court
                          for the Eastern District of Texas
                   _____________________________________________
    
    
    Before WIENER and BARKSDALE, Circuit Judges, and FURGESON, District
    
    Judge.1
    
    FURGESON, District Judge:
    
         Defendant-Appellant Richard James Tucker appeals from a jury
    
    verdict finding him guilty of one count of securities fraud and one
    
    count     of   mail   fraud    on   the   ground   that   the   district    court
    
    improperly excluded his securities expert. Tucker also appeals the
    
    district court’s 1) failure to submit an element of the crimes
    
    charged to the jury, 2) misstatement of the intent element in the
    
    
    
         1
           District Judge of the Western District of Texas, sitting by
    designation.
                                              1
    jury charge, 3)failure to provide a specific unanimity-of-theory
    
    instruction    to    the    jury,   and   4)   imposition         of   consecutive
    
    sentences.     For   the    reasons   stated   below       we    AFFIRM   Tucker’s
    
    conviction and sentence in full.
    
                                FACTS AND PROCEEDINGS
    
         First Fidelity Acceptance Corporation (“FFAC”) was a Nevada
    
    corporation founded in 1991 and headquartered in Plano, Texas. Its
    
    purpose was to purchase and sell automobile loans in the form of
    
    installment sales contracts, secured by automobiles and light
    
    trucks.   Upon acquiring the automobile loans, FFAC would then
    
    “package” the loans and sell them to financial institutions and
    
    large investors.
    
         Tucker joined FFAC in April of 1992 as a consultant to aid the
    
    corporation    in    its    first   private    placement         of    asset-backed
    
    securities. In September of that year, the FFAC Board of Directors
    
    named Tucker Chief Executive Officer and Chairman of the Board.
    
    According to Tucker, FFAC was performing exceptionally well from
    
    1992 until the first quarter of 1996, with total assets worth
    
    $11,672,000.        The    Government,    however,    maintains         that     FFAC
    
    experienced mixed financial results from 1991 through 1995, at
    
    which time FFAC was facing a financial crisis.
    
         In 1996, FFAC created a wholly-owned subsidiary, Automobile
    
    Receivables    Corporation       (“FFAC-ARC”),       for        the    purpose     of
    
    establishing   certain      investment    trusts.      Thereafter,        FFAC-ARC
    
    organized three trusts with the goal of raising money to be
                                          2
    borrowed by FFAC and its subsidiaries for investment in automobile
    
    loans.     In order to generate capital, the trusts facilitated the
    
    offer and sale of certificates; the minimum investment amount was
    
    $25,000.
    
         To     entice    potential   investors   to   purchase    the   trust
    
    certificates, Tucker drafted a Private Placement Memorandum (“PPM”)
    
    describing the investment, the trust, and the trust’s relationship
    
    to FFAC.     The PPMs also contained a number of representations
    
    regarding how FFAC would handle and use the money collected from
    
    the investors.       Notably, the PPMs promised that (1) the proceeds
    
    from the sale of the certificates would be used only for the
    
    purposes denoted in the PPM; (2) the trust at all times would have
    
    investments and cash with an aggregate value exceeding the balance
    
    of the certificates; (3) none of the assets in the trust would be
    
    available to FFAC or its subsidiaries without first paying to the
    
    trust the entire carrying value of such assets; and (4) investors
    
    could obtain refunds of their entire investments within ninety days
    
    of their requests.      Each PPM’s “specific use of proceeds” section
    
    indicated that the proceeds from the sale of the certificates would
    
    only be invested in automobile loans and automobile floor planning,
    
    or placed in insurance reserves or cash reserves.2            Finally, the
    
    PPMs advised all potential investors that the investments were
    
    
    
         2
            In his appellate brief, Tucker also notes that “the PPMs
    permitted the monies received from investors to be transferred to
    FFAC and, in fact such a scenario was expected.”
                                         3
    risky and subject to total loss, and that FFAC might be unable to
    
    sell the loans it acquired with the proceeds from the sale of
    
    certificates.
    
         Tucker described the investments as securities in both the
    
    PPMs and in two Regulation D filings with the United States
    
    Securities   and   Exchange   Commission    (“SEC”).3       Tucker    also
    
    represented to the SEC in the Regulation D filings that the money
    
    raised would not be used for “salaries and fees” or “repayment of
    
    indebtedness.”
    
         The   Government   presented   as   part   of   its   case   Tucker’s
    
    conversations with various securities brokers in which Tucker
    
    assured them that the proceeds from the certificate sales would be
    
    used only for the purchase of automobile loans and not FFAC’s
    
    business costs.    Tucker allegedly made the same statements to a
    
    member of the FFAC Board of Directors.
    
         The Government also offered evidence that Tucker prepared
    
    false financial records demonstrating that the funds raised by the
    
    sale of the certificates were invested as represented in the PPMs.
    
    Securities broker Joe Miller testified that his firm continually
    
    requested from Tucker financial statements reflecting the use of
    
    the trust funds.     In response, Tucker, in July of 1997, sent
    
    financial statements to Miller indicating that he had purchased a
    
    large number of automobile loans with the proceeds, and that each
    
    
    
         3
             See 17 C.F.R. §§ 230.501-.508.
                                        4
    of the trusts, not FFAC, possessed cash and automobile loans in
    
    excess   of   the    amounts   invested.   Tucker     made   a   similar
    
    representation to Miller’s firm in March of 1998, weeks before the
    
    collapse of FFAC.4
    
         The Government contended at trial that Tucker did not use the
    
    majority of the money raised from the sale of the certificates to
    
    purchase automobile loans.      Instead, Tucker had used substantial
    
    amounts of the investors’ funds to pay FFAC salaries, rent, legal
    
    fees, and other operating costs such as travel and entertainment
    
    expenses.     Moreover, Tucker, it was maintained, had used the
    
    investors’ funds raised in the third trust to repay investors in
    
    the second trust who had demanded reimbursement; had paid interest
    
    and principal on securities that FFAC had issued in 1995, as well
    
    as debts incurred prior to the creation of the trusts; and had paid
    
    a settlement in a civil lawsuit against him and FFAC with the
    
    proceeds of the certificate sales.
    
         In April of 1998, the Chief Financial Officer of FFAC reported
    
    to FFAC’s Board of Directors that the corporation was insolvent.
    
    Thereafter, the Board forced Tucker to resign.      A team charged with
    
    reviewing the books and records of the trusts and FFAC concluded
    
    that FFAC was bankrupt and that the trusts held almost no assets of
    
    
         4
            Although the Government alleges that Tucker created “bogus
    financial statements,” Tucker asserts that his “records disclosed
    the expenditure of every dollar, whether raised from the investors
    or other sources, and [that] there was no second set of sham
    accounting records.” We find it difficult to reconcile these two
    conflicting statements.
                                        5
    value.   Those investors who had not withdrawn their investment by
    
    April 15, 1998, lost the principal of their investment in addition
    
    to any interest accrued.    The losses incurred by all investors
    
    totaled over $15 million.
    
         On November 14, 2001, a federal grand jury in the Eastern
    
    District of Texas returned a two-count indictment against Tucker,
    
    charging him with one count of securities fraud and one count of
    
    mail fraud.5
    
         The first count accused Tucker of the “[u]se of interstate
    
    commerce for [the] purpose of fraud or deceit.”6     The indictment
    
    alleged that Tucker had engaged in all of the activities prohibited
    
    in 15 U.S.C. § 77q(a)(1), (2), and (3).7   The Government averred in
    
    the indictment that Tucker’s “scheme and artifice” to defraud was
    
    evinced in the various statements contained in the PPMs, as set
    
         5
            15 U.S.C. §§ 77q(a) & 77x (securities fraud); 18 U.S.C. §
    1341 (mail fraud).
         6
            Section 77q, entitled “Fraudulent interstate transactions,”
    makes it a crime:
         for any person in the offer or sale of any securities .
         . . by the use of any means or instruments of
         transportation or communication in interstate commerce or
         by use of the mails, directly or indirectly
         (1) to employ any device, scheme, or artifice to defraud,
         or
         (2) to obtain money or property by means of any untrue
         statement of a material fact or any omission to state a
         material fact necessary in order to make the statements
         made, in light of the circumstances under which they were
         made, not misleading; or
         (3) to engage in any transaction, practice, or course of
         business which operates or would operate as a fraud or
         deceit upon the purchaser. 15 U.S.C. § 77q(a).
         7
             See id.
                                     6
    forth above.8
    
         Specifically, count one of the indictment included charges
    
    that while making certain promises in the PPMs, Tucker neglected to
    
    disclose to potential investors, inter alia, that: (1) their
    
    investments would not be held in the trusts but rather deposited
    
    directly into FFAC’s operating account; (2) the proceeds would be
    
    used to pay FFAC’s operating costs; (3) previously invested funds
    
    had not been expended as promised; and (4) the “interest” paid to
    
    some investors consisted of the proceeds from certificate sales and
    
    not actual interest earned on investments in automobile loans. The
    
    Government   averred     that   Tucker    sent   the   fraudulent   PPMs   to
    
    potential    investors    via   the   United     States   mail,   commercial
    
    interstate carriers, and interstate facsimile, and that he directed
    
    the investors to mail payments to FFAC’s offices in Plano, Texas.
    
    Finally, the Government listed thirteen individuals whom Tucker had
    
    allegedly swindled, along with the dates of their investments, the
    
    
         8
            According to the indictment, Tucker promised in the PPMs
    that:
         (1) the investors’ money would be held in the trust, (2)
         the investors’ money would be used to invest in
         automobile loans and not used to pay FFAC’s operating
         costs, (3) the trusts would have investments and cash
         with an aggregate value or “liquidation value” in excess
         of the aggregate balance of the certificates at all
         times, (4) none of the assets of the trusts would be
         available to FFAC or its subsidiaries without first
         paying the trusts the full carrying value of such assets,
         (5) investors could receive their investments back in
         full in less than ninety days after requesting their
         funds, and(6) management of FFAC believed that there were
         no legal proceedings that were likely to have a material
         adverse effect on FFAC.
                                          7
    amounts, and their out-of-state addresses.
    
         The second count of the indictment accused Tucker of mail
    
    fraud.9   This count reiterated the allegations of count one, but
    
    added that Tucker, in effecting his scheme and artifice to defraud,
    
    knowingly and willfully caused investors to place into the United
    
    States mail envelopes addressed to FFAC and containing payment for
    
    the purchase of the trust certificates.       The Government also
    
    duplicated the listing of investors in count one.
    
                                DISCUSSION
    
    I.   Exclusion of Expert Testimony
    
         A.    Standard of Review
    
         Tucker argues on appeal that the district court erred in
    
    
    
         9
           The Mail Fraud statute provides:
         Whoever, having devised or intending to devise any scheme
         or artifice to defraud, or for obtaining money or
         property by means of false or fraudulent pretenses,
         representations, or promises, or to sell, dispose of,
         loan, exchange, alter, give away, distribute, supply, or
         furnish or procure for unlawful use any counterfeit or
         spurious coin, obligation, security, or other article, or
         anything represented to be or intimated or held out to be
         such counterfeit or spurious article, for the purpose of
         executing such scheme or artifice or attempting so to do,
         places in any post office or authorized depository for
         mail matter, any matter or thing whatever to be sent or
         delivered by the Postal Service, or deposits or causes to
         be deposited any matter or thing whatever to be sent or
         delivered by any private or commercial interstate
         carrier, or takes or receives therefrom, any such matter
         or thing, or knowingly causes to be delivered by mail or
         such carrier according to the direction thereon, or at
         the place at which it is directed to be delivered by the
         person to whom it is addressed, any such matter or thing,
         shall be fined under this title or imprisoned not more
         than 20 years, or both. 18 U.S.C. § 1341.
                                    8
    preventing his securities expert from testifying.             We review the
    
    admission or denial of expert evidence for abuse of discretion.10
    
    “District    courts   enjoy   wide       latitude    in    determining   the
    
    admissibility of expert testimony, and the discretion of the trial
    
    judge and his or her decision will not be disturbed on appeal
    
    unless manifestly erroneous.”11      If it is found that the district
    
    court abused its discretion in denying the admission of expert
    
    evidence, we must then consider whether the error was harmless,
    
    “affirming the judgment unless the ruling affected a substantial
    
    right of the complaining party.”12          In the criminal context, in
    
    assessing whether an error affected a “substantial right” of a
    
    defendant, the necessary inquiry is “whether the trier of fact
    
    would have found the defendant guilty beyond a reasonable doubt
    
    with the additional evidence inserted.”13
    
         The Supreme Court in Daubert v. Merrell Dow Pharmaceuticals,
    
    Inc.14 laid down the analytical framework for determining whether
    
    
         10
            See Moore v. Ashland Chem., Inc., 
    151 F.3d 269
    , 274 (5th
    Cir.1998) (en banc) (citing General Elec. Co. v. Joiner, 
    522 U.S. 136
     (1997)).
         11
            Watkins v. Telsmith, Inc., 
    121 F.3d 984
    , 988 (5th Cir.1997)
    (internal quotations and citations omitted).
         12
              United States v. Norris,           
    217 F.3d 262
    , 268-69 (5th
    Cir.2000) (citations omitted).
         13
            United States v. Roberts, 
    887 F.2d 534
    , 536 (5th Cir.1989)
    (citing United States v. Lay, 
    644 F.2d 1087
    , 1091 (5th Cir. Unit A
    1981) and United States v. Lueben, 
    812 F.2d 179
    , 187 n.7 (5th
    Cir.1987)).
         14
              
    509 U.S. 579
     (1993).
                                         9
    expert testimony is admissible under Federal Rule of Evidence 702.15
    
    “Under Daubert, Rule 702 charges trial courts to act as ‘gate-
    
    keepers,’ making a ‘preliminary assessment of whether the reasoning
    
    or methodology underlying the testimony is scientifically valid and
    
    of whether that reasoning or methodology properly can be applied to
    
    the facts in issue.’”16 Accordingly, in order to be admissible,
    
    expert testimony must be both “relevant and reliable.”17        The
    
    Daubert considerations apply to all species of expert testimony,
    
    whether based on “scientific, technical, or other specialized
    
    knowledge.”18
    
         B.    Analysis
    
         The district court concluded during trial that Rule 702 barred
    
    all of the testimony of Tucker’s proposed expert, Joel Held.    The
    
    reliability of Held’s testimony does not seem to be in dispute.
    
    
    
         15
            Rule 702 of the Federal Rules of Evidence provides:
         If scientific, technical, or other specialized knowledge
         will assist the trier of fact to understand the evidence
         or to determine a fact in issue, a witness qualified as
         an expert by knowledge, skill, experience, training, or
         education, may testify thereto in the form of an opinion
         or otherwise, if (1) the testimony is based upon
         sufficient facts or data, (2) the testimony is the
         product of reliable principles and methods, and (3) the
         witness has applied the principles and methods reliably
         to the facts of the case. FED. R. EVID. 702.
         16
             Pipitone v. Biomatrix, Inc., 
    288 F.3d 239
    , 243-44 (5th
    Cir.2002) (quoting Daubert, 509 U.S. at 592-93).
         17
              Id. at 244 (citing Daubert, 509 U.S. at 589).
         18
             FED. R. EVID. 702; see also Pipitone, 288 F.3d at 244
    (citing Kumho Tire Co. v. Carmichael, 
    526 U.S. 137
    , 147 (1999)).
                                     10
    For instance, the district court declared that Held was “qualified
    
    to give opinions on customs and practices that are followed by
    
    competent     practitioners     in    practicing      security    law   and   the
    
    preparation of Private Placement Memoranda and Offerings.”                    The
    
    brunt of the Government’s argument was that Held’s testimony would
    
    not   have    assisted    the   jury.        The   appropriate    inquiry   here,
    
    therefore, is “whether expert testimony proffered in the case is
    
    sufficiently tied to the facts of the case that it will aid the
    
    jury in resolving a factual dispute.”19
    
                 1.      Definition of “invest”
    
          Held was prepared to elucidate the meaning of “invest in
    
    automobile loans” as that phrase was employed in the “specific use
    
    of proceeds” section of the PPMs.              Specifically, Held would have
    
    refuted      the    Government’s     contention      that   an   investment    in
    
    automobile loans meant only the purchase of the principal amount of
    
    the loans.         Held would have urged instead that an investment in
    
    automobile loans entails not only the purchase of                loans, but also
    
    the operating expenses and costs, such as payment of commissions,
    
    travel and entertainment, finder’s fees, evaluation services, and
    
    attorney’s fees.
    
          This testimony is relevant to the issue of the definition of
    
    “invest,” as the term was used in the PPMs.                 Thus, the district
    
    court should have allowed Held to provide the jury with the usage
    
    
          19
            Daubert, 509 U.S. at 591 (quoting United States v. Downing,
    
    753 F.2d 1224
    , 1242 (3d Cir.1985)).
                                            11
    of the word “invest” within the securities industry.
    
         We find that the district court’s failure to allow Held to
    
    testify   as   to   an    expanded   definition     of    “invest,”    although
    
    improper, was not “manifestly erroneous.”20              While Held’s broader
    
    definition might have justified some of Tucker’s expenses outside
    
    the purchase of automobile loans, the Government offered evidence
    
    that many of Tucker’s expenditures violated even his liberal
    
    definition.       For    instance,   Tucker,   in   addition   to     using   the
    
    proceeds for the operating costs of FFAC, also dispersed the funds
    
    in payment of principal and interest on loans unrelated to FFAC-
    
    ARC; settlement in a civil lawsuit; and interest and principal to
    
    investors in the previous trusts, perpetuating what is known as a
    
    Ponzi scheme.21
    
         Tucker’s proposed expert testimony would have been limited to
    
    an understanding of the term “invest in auto loans” that would
    
    include various operating expenses associated with the purchase of
    
    automobile loans. Thus, even though the district court should have
    
    allowed Held to offer a definition that might have justified some
    
    of Tucker’s expenses, Tucker still deceived the investors by
    
    spending the money in other unauthorized ways.             Because the expert
    
    
         20
             Watkins v. Telsmith, Inc., 121 F.3d at 984 (internal
    quotations and citations omitted).
         21
            The Government also presented evidence that of the proceeds
    raised in the third trust, less than one percent was used to
    purchase automobile loans. Held was not prepared to testify that
    the term “invest” included this kind of minimum purchase of
    automobile loans.
                                          12
    only addressed a fragment of the misuse of funds, and did not
    
    address substantial areas of Tucker’s other applications of those
    
    funds, any error in excluding Held’s testimony in this regard was
    
    minimal.     Moreover, even if we were to conclude that the district
    
    court     abused    its     discretion,     Tucker     cannot    demonstrate     how
    
    excluding the expert testimony affected a substantial right, that
    
    is, that     Held’s       testimony    regarding      the   meaning   of   the   word
    
    “invest” would have planted a seed of doubt in the jurors’ minds
    
    sufficient to acquit him of fraud.
    
                 2.     Nature of the certificates
    
         Tucker argues on appeal that Held also sought to testify that
    
    the certificates issued to the investors were not securities as
    
    defined by the Securities Exchange Act of 1934.22                 Under the terms
    
    of the Act, a security does not include “currency or any note,
    
    draft, bill        of   exchange,     or   banker’s    acceptance     which   has a
    
    maturity at the time of issuance of not exceeding nine months . .
    
    . .”23    Held would have opined that since the certificates at issue
    
    here were due immediately, they had a maturity date of less than
    
    nine months and therefore did not qualify as securities.                   Further,
    
    based on his expertise in the field of securities, Held would have
    
    testified that “generally companies take the position that notes
    
    that . . . have nine months or less of maturity and are similar to
    
    
    
         22
               15 U.S.C. § 78a.
         23
               15 U.S.C. § 78c(a)(10).
                                               13
    commercial transactions, . . . are generally not secured, not
    
    treated as securities for the purpose of registration with the
    
    SEC.”     Finally, Held would have posited that the certificates were
    
    part of a secured transaction regulated by the Uniform Commercial
    
    Code and not the securities laws.        The basis for this latter
    
    opinion was the filing of a UCC-1 financing statement on behalf of
    
    the three trusts, conferring upon each one an equal security
    
    interest in all of the assets of FFAC.
    
         Although Tucker raises this point of error on appeal, it is
    
    apparent from the record that he never intended to submit the
    
    information described above to the jury.       Rather, Tucker agreed
    
    throughout the trial that Held’s proffer with regard to the issue
    
    of whether the certificates were securities was helpful only to the
    
    district court’s separate legal determination.24    Thus, it was not
    
    error for the district court to exclude evidence that Tucker never
    
    intended to have the jury consider in the first place.
    
         Moreover, even allowing that the district court somehow erred,
    
    Tucker has failed to show that Held’s testimony with regard to the
    
    nature of the certificates would have affected the outcome of the
    
    trial.     The fact that the certificates sold to the investors were
    
    redeemable on demand does not automatically remove them from
    
    
    
    
         24
            At three points during the trial, Tucker asserted that whether
    the certificates were securities was a matter of law for the district
    court to decide.
                                      14
    classification as a security.          In Reves v. Ernst & Young,25 The
    
    Supreme Court determined that a demand note could properly be
    
    considered a “security” regulated by the anti-fraud provisions.
    
    The Reves court rejected the notion that “legal formalisms”26 were
    
    controlling and instead found that all suspect items should be
    
    adjudged by the “family resemblance” approach.27           The Supreme Court
    
    in Reves also found the “fundamental essence of a ‘security’ to be
    
    its character     as   an   ‘investment.’”28   Under     the   circumstances,
    
    notwithstanding    Held’s    opinion   that    certain    qualities   of   the
    
    certificates favored the position that they were not securities, we
    
    agree with the district court’s legal conclusion that the facts
    
    
         25
              
    494 U.S. 56
     (1990).
         26
            Id. at 61 (noting that “Congress’ purpose in enacting the
    securities laws was to regulate investments, in whatever form they
    are made and by whatever name they are called”).
         27
             Pursuant to the “family resemblance” approach, a court
    must, after concluding that the disputed      transaction does not
    strongly resemble a member of the non-security “family,”
         [f]irst . . . examine the transaction to assess the
         motivations that would prompt a reasonable seller and
         buyer to enter into it . . . Second, [the court must]
         examine the “plan of distribution” of the instrument . .
         . to determine whether it is an instrument in which there
         is “common trading for speculation or investment” . . .
         .    Third, [the court must] examine the reasonable
         expectations of the investing public . . . . Finally,
         [the court must] examine whether some factor such as the
         existence of another regulatory scheme significantly
         reduces the risk of the instrument, thereby rendering
         application of the Securities Acts unnecessary. . . .
    Reves, 494 U.S. at 66-67 (citations and internal quotations
    omitted); see also Trust Co. of Louisiana v. N.N.P. Inc., 
    104 F.3d 1478
     , 1489 (5th Cir.1997).
         28
              Reves, 494 U.S. at 68-69.
                                         15
    overwhelmingly supported a finding that the certificates were
    
    indeed securities.29
    
         Additionally, the record reveals that Tucker was able to
    
    elicit    the    testimony      regarding    the   UCC-1   financial      statement
    
    through Patti Plunkett, FFAC’s former Chief Financial Officer.
    
    Plunkett testified about the existence of the UCC-1 filing and also
    
    explained that the trustee possessed a first lien position on all
    
    of the assets of FFAC for the benefit of the investors in the three
    
    trusts.     Held’s testimony in this regard, which would have merely
    
    highlighted      these    same     characteristics,        was   cumulative     and
    
    unnecessary.
    
         In light of these matters, Tucker has not convinced us that
    
    the district court erred.            Certainly, Tucker has not raised a
    
    plausible suspicion that the trier of fact would not have found him
    
    guilty beyond a reasonable doubt “with the additional evidence
    
    inserted.”30
    
                3.       Tucker’s     belief     as    to   the      nature    of   the
    
                         certificates
    
         Much       of    Held’s     proposed     testimony       centered     on   his
    
    “understanding from the facts that Mr. Tucker believed, and relied
    
    upon, advice from counsel and others that the trust certificates
    
    
         29
            The district court concluded that a weighing of the four
    family-resemblance   factors   “clearly  indicate[d]  that   the
    certificates sold by FFAC were securities.”
         30
                United States v. Roberts, 887 F.2d at 536 (citations
    omitted).
                                            16
    involved were not securities, and therefore not regulated by the
    
    federal securities laws.”31 Tucker’s argument, boiled down, is that
    
    he cannot be charged with a criminal violation of § 77q(a) if he
    
    did not subjectively believe that the certificates were securities.
    
         We believe that Held’s testimony in this regard was nothing
    
    more than an attempt by Tucker to testify by proxy, that is, to
    
    elicit the aid of a so-called expert to expound on Tucker’s mental
    
    state and thereby avoid taking the witness stand and undergoing
    
    rigorous cross-examination.
    
         Further, with regard to Tucker’s belief concerning the nature
    
    of the certificates, the Ninth Circuit has explained that:
    
          the government is required to prove specific intent only
          as it relates to the action constituting the fraudulent,
          misleading or deceitful conduct, but not as to the
          knowledge that the instrument used is a security under
          the Securities Act. The government need only prove that
          the object sold or offered is, in fact, a security; it
          need not be proved that the defendant had specific
          knowledge that the object sold or offered was a
          security.32
    
    
    Thus, by utilizing this view of specific intent, the Ninth Circuit
    
    reasoned that the Securities Exchange Act’s raison d’etre, to
    
    prevent a seller’s fraudulent behavior, was served rather than
    
    
    
         31
             Also in his written proffer, Held stated that he was
    prepared to testify that although he “did not provide Mr. Tucker
    with the original advice that the trust certificates were not
    securities, the law nonetheless supported the proposition.”
         32
             United States v. Brown, 
    578 F.2d 1280
    , 1284 (9th Cir.
    1978); see also Buffo v. Graddick, 
    742 F.2d 592
    , 597 (11th Cir.
    1984); Cook v. State, 
    824 S.W.2d 634
    , 637 (Tex. App.– Dallas 1991).
                                    17
    undermined.33       The focus is then necessarily on whether a defendant
    
    possessed the intent to defraud investors, his belief as to the
    
    nature of the certificates notwithstanding.
    
          By arguing that the certificates were not securities and
    
    therefore       not    subject     to   the    anti-fraud   provisions    of    the
    
    Securities Exchange Act of 1934, Tucker implicitly urges us to
    
    conclude that he was free to make whatever kind of representation
    
    he wanted to the potential investors, whether misleading or not.
    
    We   flatly     reject      this   reasoning    and   instead   adopt   the    Ninth
    
    Circuit’s view that the defendant’s belief concerning the nature of
    
    the securities is irrelevant. Additionally, we find that Tucker’s
    
    efforts    to      elicit    factual    testimony     through   his   expert   were
    
    impermissible.         Therefore, the district court properly excluded
    
    this portion of Held’s testimony.
    
                  4.      Regulation D evidence
    
          Finally, in what would have been Tucker’s response to the
    
    Government’s presentation of evidence that Tucker had submitted
    
    various filings with the SEC pursuant to Regulation D, Held sought
    
    to testify that based on his experience, the lead underwriters of
    
    the trusts, and not Tucker, were required to comply with the
    
    regulation. To fall within the safe harbor provision of Regulation
    
    D, and therefore be immune from certain registration requirements
    
    with the Securities and Exchange Commission, there can be no more
    
    
    
          33
               Brown, 578 F.2d at 1284.
                                              18
    than thirty-five unaccredited investors in a given endeavor.34               The
    
    regulation helps to ensure that mostly “sophisticated” purchasers
    
    are investing in private placements.
    
         Tucker does not refute the Government’s contention that he in
    
    fact filed Regulation D exemptions with the SEC.               Rather, Tucker
    
    contends he was not responsible for complying with Regulation D
    
    regarding the permissible number of unaccredited investors.              Thus,
    
    Tucker    argues    that   Held’s   testimony   was    relevant   as    to   the
    
    Regulation D information because Held “would have rebutted the
    
    prosecution’s claim that Mr. Tucker violated Regulation D.”35                The
    
    district    court    excluded   the   evidence    on    Rule    702    grounds,
    
    concluding that Held was improperly attempting to evaluate the
    
    evidence and render his opinion as to what the brokers should have
    
    drawn from it.
    
         At trial, the Government brought forth Joe Miller, who is the
    
    Chief Financial Officer of United Pacific Securities (“UPS”), one
    
    of the brokers offering the trust certificates.            Miller testified
    
    that UPS could only monitor the number of unaccredited investors by
    
    cooperating with the issuer, since it only had the information of
    
    its own investors.         Miller attested that if there were several
    
    brokers offering the same investment, it would be impossible to
    
    
         34
              See 17 C.F.R. § 230.501-.508.
         35
            Obviously, Held’s beliefs were patently unreliable insofar
    as he would have opined that sellers in the securities industry
    commonly seek Regulation D protection for investments they do not
    consider to be securities.    Thus, Held’s speculative testimony
    regarding Tucker’s intent was properly excluded.
                                          19
    monitor the number of unaccredited investors without the aid of the
    
    issuer, in this case, the trusts.                The Government also offered a
    
    facsimile cover sheet from Tucker to Miller containing notations
    
    from a conversation between the two.                    Apparently, Miller had
    
    telephoned Tucker to inquire whether Tucker was monitoring the
    
    number of unaccredited investors. Miller wrote on the cover sheet:
    
    “Tucker   says   no   problem       with    non-accredited.      Has   monitored
    
    closely.”
    
          The Government also presented the testimony of Plunkett, who
    
    testified   that      she     tracked      the    number   of   accredited   and
    
    unaccredited investors in each trust and prepared a spreadsheet
    
    containing that information, as well as the investors’ names, the
    
    dates, and amounts of their investments.                Plunkett testified that
    
    she later noticed Tucker’s assistant concealing the accreditation
    
    information when faxing the spreadsheet to the broker dealers.
    
    Plunkett also claimed that Tucker subsequently instructed her to
    
    prepare two spreadsheets, one with the accreditation information
    
    and one without.
    
          Finally, the Government offered the testimony of Adamont
    
    Georgeson, an attorney who performed legal work for FFAC, regarding
    
    the contents of a letter he prepared and sent to UPS.                  The letter
    
    informed UPS that, based on Georgeson’s discussions with Tucker,
    
    the   investment      would    be    limited       to   accredited   purchasers.
    
    Georgeson also testified that he had discussed the issue of the
    
    Regulation D restrictions with Tucker who “was very clear” that
    
                                               20
    there would be no unaccredited investors in the investments.
    
         At the presentation of each of these witnesses, Tucker’s trial
    
    counsel objected to the testimony on the grounds that Tucker was
    
    not being charged with a violation of Regulation D.           In response,
    
    the Court agreed to provide a cautionary instruction advising that
    
    jury that it could
    
         not find the Defendant guilty of any crime charged in the
         indictment solely because he may have violated a
         regulation of the Securities and Exchange Commission.
         However, you may but are not required to consider
         evidence of violations of these regulations as you would
         any other evidence in determining whether the Defendant
         had the motive or required intent to commit the crimes
         charged in the indictment.
    
         In   response,   Held   proposed   to   testify   that   UPS,   FFAC’s
    
    principal broker, who had the list of investors, was primarily
    
    responsible for monitoring the number of non-accredited investors.
    
    According   to   Held,   upon    reaching    thirty-five      unaccredited
    
    investors, it was incumbent upon UPS, rather than Tucker, not to
    
    add more unaccredited investors so as to remain within the shelter
    
    of Regulation D.
    
         We find that Held’s testimony was not helpful to the trier of
    
    fact, and therefore was properly excluded by the district court.
    
    First, in the face of direct evidence that Tucker had doctored the
    
    spreadsheets which would have demonstrated whether a particular
    
    investor was accredited or unaccredited, and thereby aided the
    
    brokers in monitoring the investors’ status, it is difficult to
    
    perceive how Held’s “specialized knowledge” of the regulation would
    
    have assisted the jury in any way.       Moreover, the record reveals
                                       21
    that    UPS   did   in   fact     attempt     to   monitor   its     Regulation   D
    
    obligations      but     was    thwarted      from   doing    so     by   Tucker’s
    
    misrepresentations and omissions.             Consequently, even accepting as
    
    true Held’s assertion that it was the broker’s responsibility, and
    
    not Tucker’s, to ensure compliance with Regulation D, the facts as
    
    developed during the course of the trial show that, at any rate,
    
    Tucker sabotaged this obligation. Thus, the district court weighed
    
    the value of Held’s testimony, not in a vacuum, but by focusing
    
    upon the particular facts and circumstances of the case, and
    
    determined that the testimony would not aid the jury.36                   We concur
    
    with that conclusion.
    
    II.    Faulty Jury Charge
    
           Before the jury retired to deliberate, the district court
    
    instructed the jury on the laws that Tucker had been charged with
    
    violating.       With    regard    to   the   securities     fraud    charge,   the
    
    district court explained the elements of the crime.37                 Although the
    
    
           36
                See CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND
    PROCEDURE: EVIDENCE § 6264 at 210 (1997).
           37
              Specifically, the district court explained that the
    Government was required to prove beyond a reasonable doubt that:
         (1) the defendant knowingly or willfully (a) employed a
         device, scheme, or artifice to defraud, or; (b) obtained
         money or property by means of an untrue statement of a
         material fact or an omission to state a material fact
         necessary in order to make the statement not misleading,
         in the light of the circumstances under which they were
         made, or; (c) engaged in a transaction, practice, or
         course of business that operated or would operate as a
         fraud or deceit upon the purchaser; (2) that the
         Defendant’s acts or omission were in connection with the
         purchase or sale of securities; (3) that the Defendant
         used, or caused to be used, the United States mail or
                                             22
    jury charge        did   not   contain   the    phrase   “intent   to   defraud,”
    
    immediately following the delineation of the elements, the district
    
    court explained that Tucker acted with the requisite “intent to
    
    defraud” if he “acted knowingly and with the specific intent to
    
    deceive, ordinarily for the purpose of causing some financial loss
    
    to another or [to] bring about some financial gain” to himself.
    
    The district court also provided the jury with a definition of the
    
    term        “security”   mirroring   the       definition   contained    in    the
    
    Securities Exchange Act of 1934.38
    
           Then, turning to the mail fraud charge, the district court
    
    spelled out the essential elements of that crime for the jury.39
    
    
           other means of transportation or communication                     in
           intestate commerce in furtherance of the scheme.
           38
              The district court described a security as:
           any note, stock, treasury stock, bond, debenture, evidence of
           indebtedness, certificate of interest or participation in any
           profit-sharing   agreement,   collateral-trust    certificate,
           reorganization certificate or subscription, transferable
           share,   investment   contract,    voting-trust   certificate,
           certificate of deposit for a security, fractional undivided
           interest in oil, gas, or other mineral rights, any put call,
           straddle, option, or privilege on any security, certificate of
           deposit, or group or index of securities (including interest
           therein or based on the value thereof), or any put, call,
           straddle, option, or privilege entered into on a national
           securities exchange relating to foreign currency, or, in
           general, any interest or instrument commonly known as a
           “security,” or any certificate of interest or participation
           in, temporary or interim certificate for, receipt for,
           guarantee of, or warrant or right to subscribe to or purchase,
           any of the foregoing. See 15 U.S.C. § 78c(a)(10).
           39
            The district court explained that in order to find Tucker
    guilty of mail fraud, the Government was required to prove beyond
    a reasonable doubt:
         (1) that the defendant knowingly created a scheme to
         defraud, that is made false statements or omission of
                                             23
    Following the recitation of these elements, the district court
    
    clarified that “‘knowingly,’ as that term has been used from time
    
    to   time   in   these   instructions,      means   that   the    act   was   done
    
    voluntarily      and   intentionally   and    not   because      of   mistake   or
    
    accident.”
    
          Tucker raises a number of potential shortcomings related to
    
    the jury instructions. First, he complains that the district court
    
    precluded the jury from determining whether the certificates sold
    
    to the investors were securities, a required element of a charge of
    
    securities fraud in violation of § 77q(a).             Next, Tucker alleges
    
    that the district court did not adequately explain the requisite
    
    criminal intent for a § 77q(a) violation.             Finally, Tucker calls
    
    attention to the district court’s failure to include in the jury
    
    charge an instruction on specific unanimity of theory.
    
          A.    Standard of Review
    
          Tucker did not raise these objections to the district court’s
    
    instructions at trial.         Pursuant to Federal Rule of Criminal
    
    Procedure 52(b), we “may correct forfeited errors only when the
    
    appellant shows (1) there is an error, (2) that is clear or
    
    
    
    
          material facts in the offer and sale of securities; (2)
          that the defendant acted with the specific intent to
          defraud; (3) that the defendant mailed something, or
          caused another person to mail something, through the
          United States Postal Service, or through a private or
          commercial interstate carrier, for the purpose of
          carrying our the scheme; and (4) that the scheme to
          defraud employed false material representations.
                                           24
    obvious, and (3) that affects his substantial rights.”40            Once the
    
    appellant establishes these factors, “the decision to correct the
    
    forfeited error is within the sound discretion of the court, and
    
    the court will not exercise that discretion unless the error
    
    seriously affects the fairness, integrity, or public reputation of
    
    judicial proceedings.”41
    
         B.     Analysis
    
                1.     Failure to submit “security” element to the jury
    
         Tucker contends on appeal that the district court committed
    
    plain error by removing the issue of whether the certificates were
    
    securities from the jury’s consideration.             As noted above, the
    
    district court, at Tucker’s urging, determined that whether the
    
    certificates were securities was purely a legal question.42            Post-
    
    trial,    the    district   court   issued   a   ruling   finding   that   the
    
    certificates at issue were, as a matter of law, securities.
    
         Tucker asserts that the district court did not instruct the
    
    jury that in order to convict him of either count charged in the
    
    indictment, it would have to find beyond a reasonable doubt that
    
    the certificates sold to the investors were in fact securities.
    
    
         40
            United States v. Waldron, 
    118 F.3d 369
    , 371 (5th Cir.1997)
    (citing United States v. Blocker, 
    104 F.3d 720
    , 735 (5th
    Cir.1997)); FED. R. CRIM. P. 52(b).
         41
              Waldron, 118 F.3d at 371 (citing Blocker, 104 F.3d at 735).
         42
            It is rather disingenuous for Tucker to argue now that the
    matter of whether the certificates were securities should have been
    submitted to the jury when throughout the trial he argued that it
    was a matter of law to be decided solely by the district court.
                                          25
    Yet a reading of the jury charge reveals that the district court
    
    did submit this element to the jury.     The district court explained
    
    to the jury that the second element, which the Government was
    
    burdened with proving beyond a reasonable doubt, required a showing
    
    “that the Defendant’s acts or omissions were in connection with the
    
    purchase or sale of securities.”       As already noted, the district
    
    court then provided the jury with the definition of a security.    We
    
    disagree with Tucker that the district court’s definition of
    
    “security” was “cursory” and “superfluous.”      Rather, the district
    
    court furnished the definition of “security” as contained in the
    
    Securities Exchange Act of 1934.       Most importantly, the district
    
    court at no time informed the jury that it was not to consider
    
    whether this element of the crime had been satisfied.
    
         In refutation of the Government’s claim that the security
    
    issue was actually delivered to the jury for consideration, Tucker
    
    points to the district court’s post-trial order finding that the
    
    certificates were indeed securities.        But the district court’s
    
    later determination does not change the fact that three months
    
    prior, the “security” element appeared in the jury charge, and the
    
    jury made a finding that the certificates were securities in
    
    arriving at its decision to convict on this charge.      As such, the
    
    district did not act improperly since it did not preclude the jury
    
    from making that determination.
    
              2.   Failure to submit proper charge on § 77q(a) intent
    
                   element
                                      26
         The Government indicted Tucker for violating § 77q(a), which
    
    prohibits the fraudulent offer or sale of securities in interstate
    
    commerce.43   In criminal prosecutions, violations of § 77q(a) are
    
    charged simultaneously with § 77x which contains the applicable
    
    mens rea.44     Accordingly, § 77x provides that only “willful”
    
    violations of § 77q(a) trigger criminal liability.45
    
         Tucker complains that with regard to the § 77q(a) violation,
    
    the district court failed to instruct the jury that in order to
    
    convict, it needed to find that he acted with the specific intent
    
    to defraud.    According to Tucker, the root of the problem is the
    
    district court’s direction that the jury could convict upon finding
    
    that Tucker acted knowingly or willfully.     To be sure, the federal
    
    pattern jury charge for this crime employs the phrase “knowingly
    
    and deliberately.”46 Further, Tucker argues that since the district
    
    court did include the phrase “intent to defraud” in the elements of
    
    
         43
              15 U.S.C. § 77q(a).
         44
              Id. §§ 77q(a) & 77x.
         45
           Section 77x provides that:
         Any person who willfully violates any of the provisions
         of this subchapter, or the rules and regulations
         promulgated by the Commission under authority thereof, or
         any person who willfully, in a registration statement
         filed under this subchapter, makes any untrue statement
         of a material fact or omits to state any material fact
         required to be stated therein or necessary to make the
         statements therein not misleading, shall upon conviction
         be fined not more than $10,000 or imprisoned not more
         than five years, or both. 15 U.S.C. § 77x.
         46
              2B FED. JURY PRAC. & INSTR. § 62.03 (5th ed.).
    
                                       27
    mail fraud, there exists a real possibility that the jury believed
    
    the definition provided for that phrase related only to the mail
    
    fraud count.         Thus, Tucker believes that the jury might have
    
    convicted him on a finding of lesser intent than that which is
    
    required by § 77x.         Finally, Tucker faults the district court for
    
    failing to define the term “willfully” in the charge.              All of these
    
    arguments fail.
    
          With regard to district court’s substitution of “or” for “and”
    
    in the phrase “knowingly or willfully” in the jury instructions, we
    
    find that this typographical mistake constitutes an obvious error.
    
    However, the district court’s placement of the definition of
    
    “intent to defraud” immediately following the elements of the first
    
    count      effaced   any   confusion   the   jury   might   have   encountered
    
    concerning the requisite mens rea. In addition, even assuming that
    
    the jury convicted Tucker on the “lesser” criminal intent of
    
    “knowingly,” the definition of that term provided to the jury in
    
    the   mail    fraud    count   –   voluntarily   and   intentionally     –   was
    
    sufficiently like “willfully” to remove any doubt regarding the
    
    applicable mental state.
    
          Tucker’s second complaint that the district court failed to
    
    add “intent to defraud” into the elements of a § 77q(a) violation
    
    is equally unavailing.         The district court’s instructions mimicked
    
    the federal pattern jury charge, which makes no mention of “intent
    
    to defraud.”47       Thus, the failure to include that phrase within the
    
          47
                2B FED. JURY PRAC. & INSTR. § 62.03.
                                           28
    essential elements of a § 77q(a) violation cannot constitute
    
    reversible error.
    
           Finally, Tucker does not point to any case requiring the trial
    
    court to define within the jury charge “willfully,” as that term is
    
    referred to in § 77x.
    
           The Government points out that the evidence presented in the
    
    case clearly bespoke of willful, fraudulent behavior on the part of
    
    Tucker.       The Government produced evidence that Tucker purposefully
    
    deceived the brokers, investors, regulators, and FFAC’s Board of
    
    Directors. The Government also offered proof that Tucker concealed
    
    financial information, falsified financial summaries, drafted the
    
    PPMs, and controlled and directed the transfer of all of the
    
    investors’ money.        Tucker did not rebut this evidence with his own
    
    fact witnesses.
    
           All of these factors, taken together, indicate that although
    
    the instructions concerning the requisite intent in the first count
    
    were    not    “faultless,”   they   nonetheless      provided   the    jury   an
    
    adequate understanding of the intent element.48                 Certainly, the
    
    forfeited       errors   alleged   by   Tucker   do    not   leave     us   “with
    
    substantial and ineradicable doubt whether the jury has been
    
    properly guided in its deliberations.”49
    
                   3.   Failure to charge jury on specific unanimity of
    
    
    
           48
             Pierce v. Ramsey Winch Co.,               
    753 F.2d 416
    , 425 (5th
    Cir.1985) (citations omitted).
           49
                Id.
                                            29
                       theory
    
         Tucker asserts that the district court further erred by not
    
    including a specific unanimity-of-theory instruction in the jury
    
    charge.    Each count of the indictment identified thirty mailings,
    
    each one creating a separate act of securities and mail fraud.50
    
    Thus, Tucker argues that in the absence of a specific unanimity
    
    instruction, the jurors might have convicted him despite internal
    
    disagreement about which mailing or mailings he initiated.
    
         Tucker points to two Fifth Circuit decisions which he urges
    
    are controlling.       In the first, United States v. Gibson, we
    
    considered a defendant’s timely objection to “a court instruction
    
    that may have judicially sanctioned a non-unanimous verdict.”51          We
    
    found such an instruction to be reversible error.                Presently,
    
    Tucker’s reliance on Gibson is unfounded since he has not alleged
    
    that the district court affirmatively instructed the jury to
    
    disregard unanimity while deliberating.
    
         In the second, United States v. Holley,52 a jury convicted the
    
    defendant of two counts of perjury.         Each count alleged that the
    
    defendant    had    made    multiple   statements,   any   one   of   which
    
    established criminal liability. Before submitting the instructions
    
    
         50
            Sanders v. United States, 
    415 F.2d 621
    , 626 (5th Cir.1969)
    (reiterating that “[i]t is settled that each separate use of the
    mails in the execution of a scheme to defraud constitutes a
    separate offense”)(citations omitted)).
         51
              
    553 F.2d 453
    , 457 (5th Cir. 1977).
         52
              
    942 F.2d 916
     (5th Cir.1991).
                                           30
    to the jury, the defendant in Holley “specifically objected to the
    
    charge because it contained no . . .    requirement . . . that all of
    
    the jurors concur in the knowing falsity of at least one particular
    
    statement.”53    Finding   the   indictment   to    be   duplicitous,   we
    
    concluded that there was a “reasonable possibility that the jury
    
    was not unanimous with respect to at least one statement in each
    
    count” and ordered a new trial.54      Significantly, in Holley, the
    
    defendant lodged explicit objections to the charge; here, Tucker
    
    complains after having forfeited any potential errors in his
    
    charge, with his only relief residing in his ability to convince us
    
    that one or more of the errors he cites were clear and affected his
    
    substantial rights.
    
         The guiding principle here should be our pronouncement in
    
    Gibson that “absent competent evidence to the contrary, a court has
    
    no reason to assume that an inconsistent or compromise verdict is
    
    not unanimous, and therefore has no justification for inquiring
    
    into the logic behind the jury's verdict.”55       Moreover, we affirmed
    
    in Holley that a specific unanimity-of-theory charge was required
    
    under those circumstances where “there exists a genuine risk that
    
    the jury is confused or that a conviction may occur as the result
    
    of different jurors concluding that a defendant committed different
    
    
    
         53
              Id. at 929.
         54
              Id.
         55
              Gibson, 553 F.2d at 457 (citations omitted).
                                      31
    acts.”56
    
         Other than his bare assertion that the error “was plain and
    
    substantially prejudiced [him],” Tucker does not corroborate his
    
    claim of prejudicial error with a modicum of evidence tending to
    
    show that     the   jury   was   confused   or    possessed   any   difficulty
    
    reaching a unanimous verdict.57       Thus, even if we were to conclude
    
    that the district court’s failure to include an instruction on
    
    specific unanimity of theory established clear error so as to have
    
    affected his substantial rights, Tucker cannot convince us that our
    
    failure to correct the error will “seriously affect[] the fairness,
    
    integrity, or public reputation of judicial proceedings.”58
    
    III. Double Jeopardy
    
         As a final point of error, Tucker maintains that the district
    
    court’s imposition of consecutive sentences caused him to be
    
    punished twice for the same offense in violation of the Fifth
    
    Amendment    protection    against   double      jeopardy.    Multiplicitous
    
    indictments, or indictments that charge a single offense in several
    
    counts, raise this concern.59         “A defendant must challenge the
    
    multiplicity of an indictment before trial or forfeit the issue. .
    
    
         56
            Holley 942 F.2d at 926 (citations and internal quotations
    omitted).
         57
            The Government directs our attention to the fact that the
    jury took only thirty-six minutes to deliberate before finding
    Tucker guilty.
         58
            United States v. Waldron, 118 F.3d at 371 (citing Blocker,
    104 F.3d at 735).
         59
               United States v. Reedy, 
    304 F.3d 358
    , 363 (5th Cir.2002).
                                          32
    . .        He may, however, raise claims about the multiplicity of
    
    sentences for the first time on appeal.”60                We have consistently
    
    held that “[t]he test for determining whether the same act or
    
    transaction      constitutes     two    offenses   or    only    one   is   whether
    
    conviction under each statutory provision requires proof of an
    
    additional fact which the other does not.”61
    
          In     United   States    v.     Bruce,   this     Court   considered     the
    
    similarities between the crimes of mail fraud and securities fraud
    
    and concluded that “there is one element in 77q(a) which is not
    
    present in § 1341 – the offer or sale of a security.”62 Tucker
    
    argues that by contrast, the district court deleted this sole
    
    distinction by instructing the jury that, with regard to the count
    
    of mail fraud, it could convict Tucker upon a finding that he
    
    “knowingly      created   a    scheme    to   defraud,    that   is    made   false
    
    statements or omissions of material facts in the offer and sale of
    
    securities.”      Tucker avers that the district court’s inclusion in
    
    the mail-fraud charge of the one distinguishing element between the
    
    two crimes rendered them one and the same.
    
    
    
          60
            Id. at 364 (citing United States v. Soape, 
    169 F.3d 257
    ,
    265-66 (5th Cir.1999) and United States v. Cooper, 
    966 F.2d 936
    ,
    940 (5th Cir.1992)).       Although Tucker mainly contests the
    multiplicitous nature of the jury charge and subsequent sentencing,
    he also points out the similarities between the counts charged in
    the indictment. Tucker has clearly forfeited any consideration of
    the latter.
          61
                Reedy, 304 F.3d at 363. (citations omitted).
          62
                United States v. Bruce, 
    488 F.2d 1224
    , 1230 (5th Cir.1973).
                                             33
         We agree with the Government’s supposition that the district
    
    court     was   merely   copying   the   Fifth   Circuit   pattern   jury
    
    instructions when it described the scheme or artifice to defraud.
    
    Indeed, the first essential element for the crime of mail fraud in
    
    the pattern jury charge is as follows: “First: That the defendant
    
    knowingly created a scheme to defraud, that is _______ [describe
    
    scheme from the indictment] . . . .”63      Moreover, the pattern jury
    
    instructions provide:
    
         It is not necessary that the government prove all of the
         details alleged in the indictment concerning the precise
         nature and purpose of the scheme, or that the mailed
         material was itself false or fraudulent, or that the
         alleged scheme actually succeeded in defrauding anyone,
         or that the use of the mail was intended as the specific
         or exclusive means of accomplishing the alleged fraud.64
    
    Although the district court did not include this instruction in its
    
    jury charge, the comment nonetheless evinces the drafters’ intent
    
    to clarify the scheme underlying the allegation of mail fraud,
    
    rather than an intent to add an additional element to the crime.
    
    As such, the description of the scheme need not be proved to
    
    establish Tucker’s guilt for the crime of mail fraud, and the
    
    sentences imposed were not multiplicitous.
    
                                   CONCLUSION
    
         The district court erred in not allowing Tucker’s expert
    
    witness to endorse an expanded interpretation of the term “invest,”
    
    and thereby refute the Government’s more restrictive meaning.         But
    
         63
              PATTERN CRIM. JURY INSTR. Fifth Circuit. § 2.59.
         64
              Id.
                                        34
    because Held’s explanation would have accounted for only a small
    
    portion of the widespread misuse of the proceeds, the district
    
    court’s error does not constitute grounds for reversal.
    
         We reject Tucker’s argument that the district court improperly
    
    excluded evidence pertaining to the nature of the certificates,
    
    having found that it was never Tucker’s aim to submit this issue to
    
    the jury.
    
         Similarly, we find that the district court properly excluded
    
    Held’s testimony as to Tucker’s belief about the nature of the
    
    certificates.
    
         The district court did not abuse its discretion by excluding
    
    Held’s expert opinion that it was incumbent upon the underwriters
    
    and not Tucker to comply with Regulation D since this information
    
    would not have assisted the jury.
    
         Turning to the jury charge, we conclude that the district
    
    court did   submit   the   issue   of    whether   the   certificates   were
    
    securities to the jury and therefore did not err by withholding
    
    this element.   Moreover, Tucker cannot demonstrate that either the
    
    district court’s jury instruction with respect to the intent
    
    element of a § 77q(a) violation, or its failure to instruct the
    
    jury on specific unanimity of theory, amounted to clear error
    
    sufficient to reverse the conviction.
    
         Finally, Tucker failed to substantiate his claim that the
    
    sentences imposed were multiplicitous in violation of the Fifth
    
    Amendment protection against double jeopardy.
    
                                        35
    AFFIRMED.
    
    
    
    
                36