United States v. Kathryn Garten , 777 F.3d 392 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3593
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KATHRYN G. GARTEN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12-CR-30320 — G. Patrick Murphy, Judge.
____________________
ARGUED SEPTEMBER 18, 2014 — DECIDED JANUARY 23, 2015
____________________
Before WOOD, Chief Judge, and POSNER and MANION, Cir-
cuit Judges.
MANION, Circuit Judge. Following a four-day trial, a jury
convicted Kathryn Garten of conspiracy to commit mail and
wire fraud in the conduct of telemarketing, in violation of 18
U.S.C. §§ 1349, 2326(1). The district court then sentenced
Garten to 168 months in prison and a five-year term of su-
pervised release, and ordered her to pay $909,278 in restitu-
tion. Garten appeals, challenging the sufficiency of the evi-
2 No. 13-3593
dence, the admission of testimony that a co-conspirator had
pleaded guilty to the same offense, a comment made by the
district court judge at trial, and the calculation of the loss for
sentencing purposes. We affirm.
I.
In November 2012, a federal grand jury returned a one-
count indictment charging Kathryn Garten with conspiracy
to commit mail and wire fraud in connection with telemar-
keting, in violation of 18 U.S.C. §§ 1349 and 2326(1). Garten
pleaded not guilty and proceeded to trial. Over the course of
a four-day trial, the jury heard testimony from eight wit-
nesses: four victims of the fraud; an investigator for the Fed-
eral Trade Commission; a fraud analyst for the United States
Postal Inspection Service; an indicted co-conspirator who
was testifying as part of a cooperation agreement; and
Garten herself. While Garten maintained her innocence, be-
cause this case comes to us following a jury verdict,
[t]he relevant question is whether, after viewing the ev-
idence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt. This famil-
iar standard gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal citation
omitted). Therefore, we summarize below the evidence elic-
ited at trial “in the light most favorable to the government.”
United States v. Squibb, 534 F.3d 668, 669 (7th Cir. 2008).
No. 13-3593 3
In April 2008, Garten began working as a telemarketer
for National Solutions in Orlando, Florida. While working
for National Solutions, Garten called hundreds of individu-
als located throughout the United States who owned
timeshares. A timeshare is a right to use a residential proper-
ty for a set number of days each year. Timeshare properties
are typically located in tourist locations and many timeshare
agreements allow owners to swap their time at one resort for
time at another locale. While some timeshare owners are
happy with the arrangement, over time many wish to dis-
pose of their timeshares because, as they age, interests
change and travel becomes more difficult, and the annual
maintenance fees escalate and become burdensome. But, ac-
cording to a government witness, there is no real secondary
market for timeshares.
National Solutions, as well as several related entities, was
owned by Leandro Velazquez. 1 (We use “National Solu-
tions” throughout as shorthand for all the related Velazquez
entities.) Velazquez devised a scheme to use National Solu-
tions to defraud the owners of timeshares who wished to sell
their properties. Basically, the plot entailed Velazquez set-
ting up National Solutions and the other entities to look like
legitimate telemarketing firms that represented people who
wanted to sell a timeshare. They obtained state licenses to
operate, and applied for regulatory approval of scripts tel-
emarketers were purportedly to use to solicit willing sellers
1
The related entities included Blue Scape Timeshares, Sun Proper-
ty Networks, Resort Advisors, and City Resorts.
4 No. 13-3593
to pay National Solutions a fee in exchange for advertising
the timeshares for sale.
However, rather than using the state-approved script,
Velazquez told his employees to use another script, referred
to as a “buyer pitch.” (He also told the employees to use an
alias instead of their real names.) In following the buyer
pitch, National Solutions employees would falsely tell own-
ers of timeshares that they had a purchaser for their
timeshare, but that to finalize the sale, the timeshare owner
needed to provide funds up front to arrange for the closing.
The timeshare owners were also falsely told that they would
get the money back at closing and that the funds would be
held in a trust account. Once the timeshare owners agreed to
sell their timeshare at the discussed price, National Solutions
transmitted a contract to them. However, the fine print of
the contract stated that the funds remitted (supposedly to
arrange the closing) were for “a one-time nonrecurring and
nonrefundable advertising fee.”
After receiving the signed form contract, a National Solu-
tions employee would tell the timeshare owner that they
would receive another call for purposes of a Federal Trade
Commission (“FTC”) verification. The purported FTC veri-
fication had nothing to do with the FTC, but instead was
part of the scam, the purpose of which was to obtain a re-
cording of the timeshare owner responding to two ques-
tions: first, whether they had been given any information on
a specific purchaser for their property; and second, whether
they had received any other promises from National Solu-
tions. If the timeshare owner did not respond “appropriate-
ly” to these questions (meaning, they verified in the record-
ing that National Solutions had not provided them with a
No. 13-3593 5
purchaser’s information or made any other promises), Na-
tional Solutions would drop that “prospect.”
In order to assuage any suspicion and to get the
timeshare owners to state on the recorded calls that National
Solutions had not promised anything or given a buyer’s
name, a National Solutions employee would prep the
timeshare owner before the “FTC verification” call. The Na-
tional Solutions employee would soft-sell the questions and
tell the timeshare owner that the first question merely meant
that National Solutions had not provided the owner with
confidential information about the buyer, such as his social
security number or date of birth. And that the second ques-
tion merely meant that National Solutions had not promised
them anything as a reward for selling the property, such as a
car or a trip to the Bahamas.
Once National Solutions received the signed contract and
the funds, and succeeded in obtaining a recorded confirma-
tion of the contract, it would add the timeshare location with
a brief description and a price on a list on the internet of
properties for sale. It did nothing further, except to delay
and dissemble. When the sale did not proceed as promised,
the timeshare owners would start calling National Solutions.
The employees would make up excuses about why the clos-
ing was not proceeding. One excuse they gave was that there
was a problem with “get-away weeks,” which were appar-
ently extra weeks a timeshare owner had earned. The Na-
tional Solutions employees would claim they needed further
funds to arrange the transfer of the get-away weeks in order
to proceed with the initial closings. And again, this was a lie.
There were no buyers for the get-away weeks, just as there
were no buyers for the timeshares. After receiving these ad-
6 No. 13-3593
ditional funds, National Solutions continued its delay tactics
until the timeshare owners stopped calling. No sales were
ever closed.
If the timeshare owners complained, National Solutions
would point to the contract language which, as noted above,
stated in fine print that the fee was for advertising. And it
would have the recorded call from the purported FTC verifi-
cation, in which the timeshare owner had confirmed that it
had not been given information about a specific buyer and
had been given no other promises. Sometimes, though, in
order to quell some more vocal complaints, National Solu-
tions would refund those fees.
All told, National Solutions obtained $6,047,796 from this
fraud. Velazquez would keep a majority of the funds (70%)
and the telemarketers, who had solicited and then sealed the
deal with the various marks, would receive a cut: if they had
handled the entire deal, they would receive 30%; but if one
or more telemarketers were involved, they would split the
30% among themselves.
Eventually, enough people complained to governmental
agencies that the FTC began investigating National Solu-
tions. In July 2011, the FTC filed a civil complaint against
National Solutions and obtained an ex parte temporary re-
straining order, an asset freeze, and the appointment of a re-
ceiver over the company. In conjunction with that case, on
July 13, 2011, the FTC raided two National Solutions loca-
tions in Florida.
While one location was mostly empty, the other office
building had between five and ten employees present when
agents arrived. The agents photocopied the driver’s licenses
No. 13-3593 7
of the employees who were present, which included defend-
ant Garten as well as her son. The investigators also seized
records and other evidence, drew a layout of the office, and
took pictures and a videotape of the office. Specifically, they
took a photograph of the cubicle where Garten worked, as
well as her telemarketing license which was affixed to the
cubicle wall. The documents seized also showed that Garten,
while working for National Solutions, used the aliases “Por-
ter Sullivan” and “Loreen Rinehart.”
After the raid, the government indicted Garten and two
other telemarketers, Arantzazu Atorrasagasti (who used the
aliases Samantha Roberts, Cynthia Jones, and Alex Walker),
and Carmen Picache (who used the alias Kelly Jones). Before
he could be arrested, Velazquez disappeared, later telling
Atorrasagasti he wanted to go to the Dominican Republic. 2
Garten pleaded not guilty and proceeded to trial. Both
Atorrasagasti and Picache pleaded guilty. Atorrasagasti tes-
tified at Garten’s trial as part of her cooperation agreement.
Picache did not testify, although at oral argument the gov-
ernment indicated that she was available to testify and was
actually in the courthouse hall, but they decided they did not
need her testimony. While Picache did not testify at trial, the
government elicited testimony from Timothy Brunholtz,
2
As of the date of Garten’s trial, several other National Solutions
employees had not been indicted, including Kiomary Cruiz, Edgar Gon-
zalez, Jason Falkner, Lisa Correa, and Samwell Velazquez (Leandro Ve-
lazquez’s brother). We do not know whether they have since been in-
dicted.
8 No. 13-3593
who was a fraud analyst working with the United States
Postal Inspection Services, that Picache had pleaded guilty.
At trial, Atorrasagasti testified at length concerning the
fraudulent scheme, as summarized above. She also testified
concerning Garten’s participation in the scheme. Atorrasa-
gasti explained that she and Garten sat two cubicles away
from each other and that she heard Garten use the buyer
pitch on the telephone. She heard Garten tell customers that
“there’s a buyer ready,” that “[t]hey had money in escrow,”
“[t]hey will take care of the title search, title transfer,” and
“[t]he escrow money will be in the trust account.” Atorrasa-
gasti explained that none of that was true and that the Na-
tional Solutions businesses were “just one big scam.” There
were no buyers and there were no closings. She further testi-
fied that the fact that there were no buyers was something
that was discussed in Garten’s presence. Atorrasagasti told
the jury that she knew what she was doing was wrong and
illegal and that she had been indicted on the same charges as
Garten—conspiracy to commit mail and wire fraud—and
that she thought it was fair that Garten had also been prose-
cuted “[b]ecause, for me and her, we did the same thing, and
we are both prosecuted.”
The jury also heard from Douglas McKenney, who was
the investigator for the FTC involved in the case. He ex-
plained the FTC’s involvement in the case and the results of
the raid of National Solutions’ offices. Timothy Brunholtz
also testified for the government. He explained his role in
investigating the timeshare resale fraud, as well as his in-
volvement in the FTC raid of National Solutions’ offices.
During the raid, Brunholtz interviewed Garten. Brunholtz
told the jury that he explained to Garten that the FTC had
No. 13-3593 9
received complaints from timeshare owners about the com-
pany “cold-calling” them, promising buyers for their
timeshare, and that “there was a good possibility” there had
been violations of the federal mail and wire fraud statutes.
Brunholtz told the jury that “[a]lmost immediately,” Garten
said that as far as she knew, the company was only involved
in advertising. Garten also told Brunholtz that she was a
“fronter”—someone who would simply call the customers
and ask them if they were interested in selling their
timeshares. Brunholtz also explained to the jury that he
“looked through practically every document in that busi-
ness,” but did not find any advertising documents, closing
documents, title searches, or communications between resort
facilities and various buyers, which he would have found if
the business legitimately had buyers.
Brunholtz also testified about a spreadsheet he created
based on information extracted from Garten’s weekly sales
logs recovered during the raid. In explaining the spread-
sheet, Brunholtz described two figures in bold on the last
page of the exhibit—$705,808.07 and $98,569.22—as the
gross amount of sales and Garten’s commissions for those
sales, respectively. The prosecutor then asked Brunholtz to
explain what that meant in “layman’s terms.” Brunholtz re-
sponded: “The number on the left is the gross sales. That is
the total amount that had been charged the consumer, stolen
from the consumer.” Garten’s attorney objected “to the char-
acterization.” The district court overruled the objection, stat-
ing: “I think we have sufficient evidence in terms of that’s
accurate. The jury has to make a finding whether they be-
lieve that, but the evidence is that none were ever sold.”
10 No. 13-3593
While Garten had told Brunholtz that National Solutions
was merely involved in advertisement and that she only
called to see if timeshare owners were interested in advertis-
ing their timeshares, two of her victims testified that Garten
had told them she had buyers for their timeshares. And they
had recorded their telephone conversations with Garten.
One such victim, Duane Schmidtke, told the jury that on
March 22, 2011, he received a call from a company called
City Resorts (which was one of the National Solutions affili-
ates), from a sales representative named Porter Sullivan.
(Porter Sullivan was an alias for Garten, which Garten ad-
mitted using.) Garten told Schmidtke that she had a buyer
for his timeshare in Maui and could get him $39,000 for it.
Schmidtke wanted his wife on the phone to talk with Garten
because they had “been scammed before,” and so the couple
called Garten back the next day. Schmidtke recorded this
second phone call, as well as 45 more calls he had with
Garten and two other company representatives over the
course of several months between March 23, 2011, and July
11, 2011.
All of the calls that Schmidtke recorded were admitted
into evidence on a compact disc marked as Government’s
Exhibit 60. Unfortunately, the exhibits were not filed on ap-
peal and the district court docket indicates that the exhibits
were returned to the parties, pursuant to their stipulation. So
we don’t have the recordings to listen to, although we do
have a partial transcript of the recordings, which was in-
cluded with the PSR. We are thus left with only Schmidtke’s
(and other witnesses’) more limited summary of what
Garten said during those calls.
No. 13-3593 11
Schmidtke explained that during the March 23, 2011, call
with his wife, Garten told him that she had a buyer for their
timeshare, but they needed to pay $2,649 up front, which she
said would be placed in a trust account “that nobody was
going to touch,” and that they would get their money back
once everything settled. Schmidtke acknowledged he signed
a contract with City Resorts which stated: “I understand and
acknowledge the following: City Resorts is an advertising
company. The property owner pays a one-time, nonrecur-
ring advertising fee.” Garten, however, told Schmidtke in
the first recorded call that the fine print in the contract was
“very confusing” and that it had to be on every contract, but
that it didn’t pertain to him.
After paying the initial $2,649, the closing did not pro-
ceed as scheduled, at which point Atorrasagasti spoke with
the Schmidtkes and told them the delay was caused by the
need to transfer “get-away weeks,” and that they would
need to pay additional up-front costs to process the transfer
of the “get-away weeks,” at which point the timeshare clos-
ing could proceed. The Schmidtkes again forwarded money
to National Solutions, which along with the initial funds
paid made the total paid to National Solutions nearly $4,200.
National Solutions never sold the Schmidtkes’ timeshare.
Scott MacLean also testified for the government. He ex-
plained that he received a call from a sales representative
named Dominic Ferrara, who told him that he had buyers
interested in purchasing two timeshares owned by Mac-
Lean’s parents. (Scott handled his parents’ timeshares
through a power of attorney.) When Ferrara floated a price,
MacLean said that the price seemed low, to which Ferrara
responded he would “check with the buyer” about a higher
12 No. 13-3593
price. Ferrara later told MacLean that the buyer had come up
on the price, agreeing to pay $42,840 for one timeshare and
$12,600 for the other. After MacLean received the National
Solutions contract, he expressed concern “because it looked
like a listing arrangement for advertisement,” but then a
woman named Porter Sullivan explained to him that the
$4,995 he would pay up front was “basically earnest money”
that would be deposited into a trust account and refunded to
his father at closing.
Like Schmidtke, MacLean had recorded the conversa-
tions he had with the National Solutions representatives and
the government admitted into evidence as Exhibit 54 a com-
pact disk with sixteen recorded calls on it. Twelve of the
calls were played for the jury. In the second recorded call,
Garten assured MacLean that the contract he had signed and
faxed back to her was a sales agreement, not a listing agree-
ment. MacLean eventually mailed a cashier’s check for
$4,995 to National Solutions.
After MacLean mailed the $4,995 to National Solutions,
the closing did not proceed as scheduled. Garten explained
that the hold-up was the transfer of “get-away weeks,” and
that to transfer those to the buyer and then close on the ini-
tial timeshare sale, MacLean needed to remit another $2,500.
He did, but the sale never happened and his parents were
out nearly $7,500.
Two other victims, Beverly Jones and Marvin Boswell, al-
so testified. While neither Jones nor Boswell had spoken to
Garten, they testified that other National Solutions employ-
ees followed a similar “buyer pitch.” They explained how
they were called by National Solutions representatives, told
National Solutions had buyers for their timeshares and that
No. 13-3593 13
to close they needed to provide up-front payments, which
they would then recoup at the closing. No closings, though,
ever took place.
Finally, Garten testified in her own defense. Faced with
the testimony and taped recordings of her conversations,
which established that Garten had told the timeshare owners
that there were buyers for the timeshares, Garten claimed
that she was told there were buyers and believed there were
buyers for the timeshares. The gist of her testimony was that
she thought National Solutions was a legitimate business
and that while she had lied, she believed that there truly
were buyers for the timeshares.
The jury did not buy Garten’s story and convicted her.
The district court then sentenced her to 168 months in pris-
on, five years of supervised release, and ordered her to pay
$909,278 in restitution. In sentencing Garten, the district
court found the loss involved in her offense of conviction
was nearly $6 million. Accordingly, the district court in-
creased her offense level by 18, pursuant to U.S.S.G. §
2.1(b)(1)(J), which applies for losses between $2.5 million
and $7 million. Garten appeals.
II.
On appeal, Garten presents four arguments. First, she ar-
gues that the evidence is insufficient to support her convic-
tion for conspiracy to commit mail and wire fraud in connec-
tion with the conduct of telemarketing. Next, she argues that
the district court committed reversible error by stating
“that’s accurate” in overruling Garten’s objection to Brun-
holtz’s testimony that the “gross amount” on Exhibit 79 was
the amount “stolen from the consumer.” Her third challenge
14 No. 13-3593
is to Brunholtz’s testimony that co-conspirator Picache had
pleaded guilty, arguing this constituted reversible error be-
cause Picache had not testified at Garten’s trial. Finally,
Garten challenges her sentence, arguing the evidence was
insufficient to support the district court’s finding that the
loss involved totaled nearly $6 million. We consider each is-
sue in turn, but having painted in some detail the scene be-
fore the jury, they are all easily—and quickly—disposed of.
III.
A. Sufficiency of the Evidence
As noted, Garten first challenges the sufficiency of the ev-
idence. “[T]o support [her] conspiracy conviction, the Gov-
ernment was required to prove that [s]he knew of the essen-
tial nature and scope of the charged conspiracy and that
[s]he intended to participate in it.” United States v. Anderson,
580 F.3d 639, 646 (7th Cir. 2009). Garten claims the evidence
was insufficient to show that she knew of the nature of the
conspiracy or intended to participate in it.
In reviewing the sufficiency of the evidence, we review
the evidence in the light most favorable to the government,
and we will overturn a jury verdict only if no rational trier of
fact could have found the essential elements of the crime be-
yond a reasonable doubt. United States v. Molton, 743 F.3d
479, 483 (7th Cir. 2014). However, the government argues
that because Garten did not renew her motion for a directed
verdict at the close of the evidence or file a motion for judg-
ment of acquittal, she must demonstrate that her conviction
was “a manifest miscarriage of justice.” United States v.
Brandt, 546 F.3d 912, 918 (7th Cir. 2008).
No. 13-3593 15
Garten cannot overcome this high standard. Nor can she
overcome the less exacting but still weighty standard nor-
mally governing challenges to the sufficiency of the evi-
dence. The government presented substantial evidence ena-
bling the jury to conclude that Garten knew of the scope of
the conspiracy and intended to participate in it. The testimo-
ny and recordings established that Garten told the timeshare
owners that there were buyers for their timeshares and that
the fine print referring to advertisements did not apply to
them. Atorrasagasti testified that the fact that there were no
buyers was something discussed in Garten’s presence. And
the jury heard from Brunholtz that when he interviewed
Garten, “she said that as far as she knew, the company was
only involved in advertising.” Garten also told Brunholtz
that she simply called the customers to ask if they were in-
terested in selling their timeshares. Garten’s trial testimony,
that she only told timeshare owners there was a buyer for
their timeshare because she was told there were, conflicted
with her earlier statement. A reasonable jury could conclude
that Garten had lied first to Brunholtz when she said the
business was only involved in advertising, and then again to
the jury when she said that she was told there were buyers
for the timeshares. The jury could further reasonably con-
clude that Garten lied because she knew of the scope of the
conspiracy and intended to participate in it. Accordingly, we
reject Garten’s challenge to the sufficiency of the evidence.
B. The District Court’s Statement That Brunholtz’s Tes-
timony was Accurate
Garten next argues that the district court committed re-
versible error by telling the jury that Brunholtz’s testimony
that $705,808.07 was the amount “stolen from the consumer”
16 No. 13-3593
was “accurate.” This argument is easily disposed of.
Garten’s argument takes what the district court said com-
pletely out of context. As explained above, after Brunholtz
said that the sum $705,808.07 on Exhibit 79 was “the gross
amount of sales,” the prosecutor asked him to explain what
that meant in “layman’s terms.” Brunholtz responded: “The
number on the left is the gross sales. That is the total amount
that had been charged the consumer, stolen from the con-
sumer.” In response to Garten’s attorney’s objection “to the
characterization,” the district court overruled the objection,
stating, in full: “I think we have sufficient evidence in terms
of that’s accurate. The jury has to make a finding whether
they believe that, but the evidence is that none were ever
sold.” In context, it is clear that the district court was not
saying that the money, in fact, had been stolen; rather, the
district court was addressing Brunholtz’s characterization
and stating that the amount was accurate as alleged and that
the evidence was sufficient to support his characterization
that the money had been stolen, but that it was up to the jury
to decide whether or not to believe the testimony. The dis-
trict court made no error in responding to the objection, and
thus we reject Garten’s challenge.
C. Brunholtz’s Testimony That Picache had Pleaded
Guilty
Next Garten argues that Brunholtz’s testimony that Pi-
cache had pleaded guilty denied her a fair trial because Pi-
cache did not testify at Garten’s trial and thus was not sub-
jected to cross-examination. Garten did not object to this tes-
timony at trial, so our review is for plain error. United States
v. Vasquez, 673 F.3d 680, 684 (7th Cir. 2012). The government
rightly concedes that it was erroneous to elicit testimony that
No. 13-3593 17
Picache had pleaded guilty to the same offense as Garten
without putting her on the stand. However, the government
maintains that any error was harmless and thus not plain
error.
We agree. As summarized above, the evidence against
Garten was overwhelming. Conversely, the testimony that
Picache had pleaded guilty was fleeting and was not
stressed by the government or even mentioned during open
or closing argument. Additionally, the jury had heard from
Atorrasagasti, who had also pleaded guilty, and the district
court instructed the jury that Atorrasagasti “has pled guilty
to the same crime the defendant, Kathryn Garten, is charged
with committing. You may not consider Ms. Atorrasagasti’s
guilty plea as evidence against Ms. Garten … you must con-
sider that testimony with caution and great care.” While
Garten stresses that the jury did not receive a similar instruc-
tion concerning Picache’s guilty plea, a reasonable jury hear-
ing this instruction would infer that it likewise could not use
the fact of Picache’s guilty plea against Garten. Coupled
with the overwhelming evidence against Garten, and the fact
that mention of Picache’s guilty plea was fleeting, it did not
constitute plain error, “that is, the conviction of an innocent
person … .” United States v. Newman, 965 F.2d 206, 213 (7th
Cir. 1992).
D. Amount of the Loss
Finally, Garten challenges the district court’s determina-
tion of the loss for sentencing purposes. The district court
found Garten responsible for approximately $6 million in
losses, which represented the total amount of money depos-
ited into National Solutions’ bank accounts during the time
period that Garten was actively participating in the conspir-
18 No. 13-3593
acy. The district court then enhanced her offense level by 18,
pursuant to U.S.S.G. § 2B1.1(b)(1)(J), which applies for losses
between $2.5 million and $7 million. We review the district
court’s calculation of loss for clear error. United States v.
Rosen, 726 F.3d 1017, 1024 (7th Cir. 2013).
While Garten argues that the $6 million loss was specula-
tive, the evidence was more than sufficient to support the
district court’s finding. Specifically, Brunholtz testified he
had reviewed the bank accounts of National Solutions and
the net amount (amounts deposited less refunds issued) to-
taled approximately $6 million. Garten counters that Na-
tional Solutions was involved in some legitimate rental ac-
tivities and thus the $6 million in deposits was not all a re-
sult of fraudulent activities. But the district court heard tes-
timony from Garten’s co-conspirator Atorrasagasti that Na-
tional Solutions was “just one big scam.” Additionally,
Brunholtz had testified at trial that he “looked through prac-
tically every document in that business,” but did not find
any advertising documents or communications between re-
sort facilities. Garten also did not present any evidence of
legitimate activities, much less identify a dollar amount of
non-fraudulent business activities. Under these circumstanc-
es, the district court did not commit clear error in enhancing
Garten’s sentencing level by 18 for causing a loss of between
$ 2.5 and $7 million.
IV.
A jury convicted Garten of conspiracy to commit mail
and wire fraud in connection with the conduct of telemarket-
ing after hearing overwhelming evidence against her. There
was more than sufficient evidence to support this conviction.
Thus, while it was error for Brunholtz to testify that Picache
No. 13-3593 19
had pleaded guilty to the same charge since she did not testi-
fy at Garten’s trial, any error was harmless. There was no
error, though, in the district court’s response to Garten’s ob-
jection to the characterization of the “gross amount” as the
amount “stolen.” The district court’s comment, in total,
made clear that he was not telling the jury that the money
had been stolen—that was a question for the jury—just that
the evidence could support that characterization. Finally, the
district court did not clearly err in finding that the loss in-
volved between $2.5 and $7 million for purposes of sentenc-
ing. The government presented evidence that the net depos-
its into National Solutions’ bank accounts totaled approxi-
mately $6 million and that the entire business was a scam.
Therefore, the district court could easily find the entirety of
the net deposits was a loss related to Garten’s offense of
conviction. We AFFIRM.