United States v. Arthur Friedman ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐2004
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ARTHUR FRIEDMAN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15‐cr‐00675‐2 — Amy J. St. Eve and Virginia M. Kendall, Judges.
____________________
ARGUED JUNE 2, 2020 — DECIDED AUGUST 21, 2020
____________________
Before FLAUM, KANNE, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. To keep his car dealership afloat,
Arthur Friedman secured loans for fake buyers of a phony in‐
ventory of cars. The scheme resulted in a bank fraud convic‐
tion, a 108‐month prison sentence, and an order to pay
roughly $5 million in restitution. We have cautioned against
raising too many issues on appeal; Friedman raises nine to his
conviction and his sentence. The district court ruled correctly
in all respects, so we affirm.
2 No. 19‐2004
I. Background
Arthur Friedman and Leon Bilis co‐owned Prestige Leas‐
ing, a luxury used car dealership. The dealership purchased,
leased, sold, and exported luxury vehicles. When their deal‐
ership began to suffer financially in 2008, Friedman devised a
plan and schemed with Bilis to get cash for their business. The
dealership exported cars overseas yet kept the title certificates
for many of them as “a lot of countries did not require original
titles, just the copies.” Friedman and Bilis secured loans
against the exported cars, using the title certificates as proof
of collateral. So Friedman and Bilis obtained loans backed by
assets they no longer possessed.
At first the two used their own names on loan applications.
Later they used the names of family, friends, former employ‐
ees, and customers, most often without that person’s
knowledge. For each loan, Friedman and Bilis falsely said that
the car was present in the United States and being sold to the
listed borrower. The loan applications also included false em‐
ployment or income information, falsified corporate docu‐
ments and title information, and forged signatures, on which
the banks relied.
To conceal the fraud, Friedman and Bilis took cash from
customers for cars that the dealership never had or delivered.
In particular, customers gave down payments or full deposits
under the ruse that advance payments were needed to lock
up cars with a limited inventory. Rather than use the cus‐
tomer funds as promised, Friedman and Bilis used the money
to pay down the bogus car loans. They similarly bilked floor‐
plan investors. Those investors financed cars to be marketed
and sold on the Prestige dealership lot in exchange for a cut
of the mark‐up price; instead, their funding was tied to cars
No. 19‐2004 3
that the dealership neither stocked nor intended to sell. The
investors’ funds, too, were used to pay down fraudulent
loans.
Unsurprisingly, this scheme was unsustainable and in late
2011 banks came calling for unpaid loans. Local police, too,
began investigating suspicious loan activity. Given the police
investigation, Friedman and Bilis retained attorney Jeffrey
Steinback to jointly represent them. This joint counsel ar‐
rangement was short‐lived; around January 2012, Friedman
ended his relationship with Steinback and retained separate
counsel. Almost four years later the federal government got
involved, and Friedman and Bilis were indicted.
The indictment charged seven counts of bank fraud—each
count pointing to a specific loan—in violation of 18 U.S.C.
§ 1344. It alleged that from November 2008 until November
2011, Friedman and Bilis schemed to defraud banks by sub‐
mitting loan applications for fake car purchases. It also
alleged that Friedman and Bilis concealed the bank fraud by
deceiving customers and floor‐plan investors into fronting
money for other fake car purchases, then used that money to
make loan payments. Bilis—still represented by Steinback—
pleaded guilty and entered a cooperation agreement with the
government. Due to Bilis’s plea, the government filed a re‐
dacted indictment, removing two counts charging Bilis alone
and renumbering the rest. Friedman proceeded to trial on the
remaining five counts. In relevant part, count five of the re‐
dacted indictment charged that Friedman and Bilis executed
the fraud scheme by “knowingly caus[ing] American Eagle
Bank to fund a vehicle loan for $62,589.57 in the name of
Michael Blekhman for the purchase of a 2011 Porsche
Panamera.”
4 No. 19‐2004
Less than a month before trial, Friedman moved to dismiss
the indictment or, in the alternative, to exclude Bilis’s testi‐
mony. Friedman claimed he shared “confidential
information” with Steinback during the brief period of joint
representation. And because Steinback represented Bilis
through his eventual plea deal, “[i]t is impossible to discern
… what confidential information Steinback provided to Bilis
… that has now tainted Bilis as a witness.”
The district court held an evidentiary hearing on Fried‐
man’s motion, at which Steinback and Friedman testified.
Steinback testified he represented Prestige Leasing, Bilis, and
Friedman “in connection with their business.” Though no fed‐
eral investigation loomed when hired, Steinback believed his
representation “very well could be” for a criminal defense
matter “but, at that juncture, it could also remain civil.” In any
event, Steinback advised Friedman and Bilis that they may
later need independent counsel. Steinback testified Friedman
never shared substantive information about the car loans or
made any admission of wrongdoing during their discussions.
For his part Steinback did not pass on information provided
by Friedman to Bilis or the government. Steinback also pro‐
duced his client file for the district court’s ex parte review, and
the court closed a portion of the hearing to allow Steinback to
testify ex parte about potentially privileged matters.
Friedman gave a different account of the joint representa‐
tion arrangement. He said he and Bilis met with Steinback at
least three times. During those meetings, Friedman initially
claimed that he kept discussing the joint matter with Stein‐
back during Bilis’s bathroom breaks because “[i]t’s too expen‐
sive to talk about other stuff.” That story evolved during the
evidentiary hearing. Friedman later claimed he waited for
No. 19‐2004 5
Bilis’s bathroom breaks to tell Steinback “certain things” he
did not want Bilis to hear, adding that Bilis took bathroom
breaks lasting around ten to fifteen minutes. When asked
whether those conversations had anything to do with the al‐
leged fraud, Friedman responded, “in a way,” and that
“[m]ost of” those conversations involved “privileged commu‐
nications” Still, Friedman never told Steinback to keep those
communications from Bilis. Nor did Friedman ever attempt
to privately relay these confidences to Steinback via telephone
or a separate one‐on‐one meeting. Friedman testified he
shared purportedly privileged information only when Bilis
took bathroom breaks.
The district court denied Friedman’s motion, explaining
that it “carefully evaluated the demeanor and credibility of
each witness, including his body language, tone of voice, fa‐
cial expressions, mannerisms, and other indicative factors.”
Based on these factors, the court found that Friedman did not
make any admissions of criminal wrongdoing to Steinback,
crediting Steinback’s “emphatic[]” testimony on this point
and the lack of evidence in his client file suggesting that Fried‐
man made such admissions. The court also found Friedman’s
testimony farfetched:
[T]hat a criminal defendant—apparently con‐
cerned with his individual criminal exposure
and desirous of keeping that concern from his
business partner—would enter into joint repre‐
sentation with that business partner, and then
await inherently unpredictable bathroom
breaks to provide his lawyer with critical infor‐
mation (rather than calling him or meeting with
him one‐on‐one) breaks the Court’s credulity.
6 No. 19‐2004
The district court continued: “Friedman testified that he read
the government’s reports on Bilis’s proffers—yet in his briefs,
on redirect, or ex parte, Friedman did not identify any similar‐
ities between what was contained in those reports and what
he supposedly shared with Steinback in confidence.” Because
Friedman lacked evidence of prejudice from the use of privi‐
leged information, the district court ruled that a dismissal of
charges or exclusion of Bilis’s testimony was unwarranted. As
a precaution, the district court provided a cautionary instruc‐
tion that “Bilis was promised a benefit in return for his coop‐
eration with the government” and to “consider [his]
testimony with caution and great care.”
When trial commenced, Bilis testified Friedman first pro‐
posed the scheme to secure loans on exported cars, and that
the pair sought cash from other sources, including defrauding
customers and floor‐plan investors, to pay down those loans.
According to Bilis, Friedman ramped up the fraud to build a
house and to furnish it with imported décor. Friedman also
prepared Prestige’s financial documents, including outstand‐
ing loans and cash flow reports. Bilis identified Friedman’s
signature on loan documents, and he confirmed that no actual
car transaction occurred on any loan, and that the cars in‐
volved were exported overseas before they submitted loan
applications. Bilis further explained that Prestige made the
car loan payments, not the named borrowers, and that deal‐
erships do not pay down customer loans, especially when the
car buyer is personally responsible for the debt.
Purported “borrowers” also testified, explaining they
never purchased the cars in question, authorized the loan ap‐
plications bearing their names, or received loan funds from
the banks. Similarly, several Prestige customers and floor‐
No. 19‐2004 7
plan investors testified about giving large sums of cash for car
purchases and investments, only to learn that their money
was squandered. In particular, Prestige made a cash cow out
of the Porsche Panamera vehicle noted in count five. Evidence
showed that Prestige “sold” the same Porsche to multiple
buyers, including Blekhman, but never delivered the car to
any of them because it had already been exported overseas.
Evidence also showed that Prestige took money from a floor‐
plan investor for the same Porsche. On top of that, Prestige
forged a loan in Blekhman’s name from American Eagle Bank
for over $60,000. Altogether Prestige took in around $300,000
for the Porsche scam. When confronted with the scheme, sev‐
eral witnesses testified that Friedman confessed to the fraud.
Before the close of evidence, the district court noted that
at the pretrial conference Friedman had not objected to the
government’s proposed jury instructions. Even so, the court
asked the parties to reexamine the instructions for objections,
giving them a three‐day weekend for this review. Friedman
requested changes to several instructions, but as relevant to
this appeal, none involved Seventh Circuit Criminal pattern
instruction 5.06(a)–(b) concerning aiding and abetting/acting
through another. With jury instructions resolved, the parties
proceeded to closing arguments.
Friedman’s closing argument pinned the loan scheme en‐
tirely on Bilis, accusing him of fabricating Friedman’s role to
obtain a favorable government deal. In rebuttal, the govern‐
ment urged the jury to “use your common sense, check your
gut,” and rely on “your own life experience” to assess the case
and the credibility of witnesses. As to the argument that Bilis
operated as a lone actor and hid the fraud from Friedman, the
government again asked the jury to “trust your gut” and use
8 No. 19‐2004
“your own common sense … your own life experience” that
Friedman, as president of Prestige, was not ignorant of the
fraud, let alone Prestige’s assumption of loan payment obli‐
gations for customers. Friedman objected to the government’s
“gut” references, arguing that “[t]heir gut is not what [the
jury] is supposed to listen to.” The government responded:
“It’s common sense … that the president of a two‐man com‐
pany knew exactly what was going on when a company’s
failing but he’s still taking money out.” The district court
overruled Friedman’s objection and instructed the jury “to
use their common sense,” explaining “that is what [the gov‐
ernment] is arguing” and “[i]t is proper argument.” The gov‐
ernment then concluded: “If you do those two things, if you
look at both the evidence … but also go with your gut, you
are going to find [Friedman] guilty.”
After deliberations the jury found Friedman guilty on
three of the five counts. He moved for judgment of acquittal
or a new trial under Federal Rules of Criminal Procedure 29
and 33, arguing, among other things, that: (1) the government
presented insufficient evidence to convict on count five, the
Blekhman loan charge; (2) Friedman’s prosecution was
“taint[ed]” by Steinback’s continued representation of Bilis;
and (3) the government’s urging jurors to “go with [their]
gut” minimized its burden of proof beyond a reasonable
doubt. The district court denied those motions in a compre‐
hensive written order.
Friedman then filed a second motion for a new trial, claim‐
ing to have “newly discovered” a 2015 forbearance agreement
between Bilis and American Eagle Bank regarding Bilis’s out‐
standing debt, and a 2016 loan from the bank to a business
owned by Bilis’s wife. The 2015 agreement and 2016 loan,
No. 19‐2004 9
according to Friedman, “exposed a considerable bias and mo‐
tive to testify falsely against Friedman.” The district court de‐
nied that motion, too.
With Friedman’s post‐verdict challenges exhausted, the
district court calculated his adjusted offense level as 35, result‐
ing in an advisory Guidelines range of 168 to 210 months’ im‐
prisonment. Even so, the court imposed a below‐guidelines
sentence of 108 months’ imprisonment on each count, run‐
ning concurrently on each of the three counts, and ordered
restitution of $4,722,347.
II. Discussion
Friedman appeals a glut of pre‐trial, trial, and post‐verdict
rulings. His arguments cover: (1) the alleged conflict of inter‐
est of Bilis’s counsel; (2) jury instructions; (3) the jury’s verdict
on count five, the Blekhman loan charge; (4) the denial of a
new trial based on the government’s “gut” references during
its closing argument; (5) the denial of a new trial based on
“newly discovered evidence”; (6) a sentencing enhancement
for obstruction of justice; (7) a sentencing enhancement for the
use of sophisticated means to conceal the fraud; (8) the district
court’s calculation of loss attributable to the fraud; and (9) the
district court’s restitution order. We discuss these challenges
in that order. For sake of clarity as to the appropriate standard
of review, the issues are organized according to whether they
were raised via motion or objection.
Before turning to the merits, a word must be said on the
lack of effectiveness of making so many claims of error.
“[O]ne of the most important parts of appellate advocacy is
the selection of the proper claims to urge on appeal.” Howard
v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (admonishing a
10 No. 19‐2004
“‘kitchen sink’ approach” to advancing issues on appeal).1
The claims chosen should be few and carefully measured for
maximum effect. A circumspect approach boosts credibility,
while raising every conceivable challenge on appeal can di‐
lute the persuasiveness of plausible arguments. For these rea‐
sons we have cautioned: “[A] brief that treats more than three
or four matters runs a serious risk of becoming too diffused
and giving the overall impression that no one claimed error
can be very serious.” Practitioner’s Handbook for Appeals to the
United States Court of Appeals for the Seventh Circuit 139 (2019);
Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 359 (7th Cir.
1987) (quoting same). Tempting as it may be to call foul on
every perceived trial error, that strategy generally produces
diminishing returns. “Legal contentions, like the currency,
depreciate through over‐issue.” Robert H. Jackson, Advocacy
Before the Supreme Court, 37 CORNELL L.Q. 1, 5 (1951). With that
said, we proceed to Friedman’s nine claims.
A. Motion to Dismiss the Indictment
Recall that as Friedman and Bilis’s scheme began to un‐
ravel, they jointly retained Steinback “in connection with their
business.” The joint‐counsel engagement was brief, as Fried‐
man obtained his own lawyer around two months later.
Nearly four years after that, Friedman was indicted. Steinback
1This is a time‐honored tenet of advocacy. See generally ANTONIN
SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING
JUDGES 22–23 (2008) (“The most important—the very most important—
step you will take … before a trial court or an appellate court, is selecting
the arguments that you’ll advance.”); MARCUS TULLIUS CICERO, DE
INVENTIONE 345 (H.M. Hubbell trans., Harvard Univ. Press 1949) (describ‐
ing the selection of arguments as “the first and most important part of
rhetoric”).
No. 19‐2004 11
continued to represent Bilis, who went on to plead guilty and
cooperate with the government. Friedman moved to dismiss
the indictment, claiming he shared privileged communica‐
tions with Steinback during the short joint representation. On
appeal Friedman insists that Steinback’s continued represen‐
tation of Bilis infected the prosecution and deprived his due
process right to a fair trial. We review de novo the denial of a
motion to dismiss an indictment, United States v. Hernandez‐
Perdomo, 948 F.3d 807, 810 (7th Cir. 2020), and the court’s fac‐
tual findings for clear error, United States v. Boyce, 742 F.3d
792, 794 (7th Cir. 2014).
Because “[t]he attorney‐client privilege is a testimonial
privilege,” “so long as no evidence stemming from the breach
of the privilege is introduced at trial, no prejudice results.”
United States v. White, 970 F.2d 328, 336 (7th Cir. 1992). Fried‐
man concedes he “could not identify any communications
from Steinback to Bilis, or in turn from Bilis to the govern‐
ment” suggesting a breach. Without that evidence, Friedman
maintains the district court “should have presumed that con‐
fidences were shared.” Even if true, Friedman acknowledges
this presumption is rebuttable. We conclude it was thor‐
oughly rebutted during the district court’s evidentiary hear‐
ing on the issue.
To address Friedman’s concerns, the district court held a
closed evidentiary hearing at which Friedman and Steinback
testified. On direct examination, Friedman’s counsel never
elicited, and Friedman never testified, that he shared any con‐
fidences with Steinback about the alleged fraud. When Fried‐
man was asked whether he shared communications about the
fraud with Steinback, Friedman responded, “in a way.” But
Friedman never explained what privileged communications
12 No. 19‐2004
were exchanged, despite the district court’s offer of ex parte
and in camera opportunities to do so.
The exclusive setting in which the purportedly privileged
communications were conveyed—during infrequent and un‐
predictable Bilis bathroom breaks—is not credible. Fried‐
man’s explanation also changed during the hearing; first, he
testified Steinback was too expensive for idle chat, then he
said those chats were saved for things he did not want Bilis to
hear. That Friedman did not ask Steinback to keep those per‐
sonal confidences from Bilis—with whom he entered a joint
representation arrangement—further supported the unlikeli‐
hood that Friedman shared such confidences. Friedman rec‐
ognized the line between personal and mutual confidences, as
shown by Friedman’s prompt decision to retain independent
counsel without Steinback telling him to do so. All this oc‐
curred almost four years before the government issued Fried‐
man’s indictment. The record supports the district court’s
finding that “Friedman did not provide Steinback with any
personal, privileged confidences,” rebutting Friedman’s pre‐
sumption otherwise.
Friedman challenges the district court’s credibility find‐
ings, arguing the court should have disregarded Steinback’s
testimony. But “[d]etermining witness credibility is especially
within the province of the district court and can virtually
never be clear error.” United States v. Austin, 806 F.3d 425, 431
(7th Cir. 2015) (internal quotation marks and citations omit‐
ted). And Friedman’s criticisms of Steinback’s testimony are
unconvincing. First, he complains Steinback did not initially
inform the government that Bilis and Friedman paid a $30,000
retainer, and that Steinback applied $25,000 of it during the
joint representation arrangement. Friedman calls this a
No. 19‐2004 13
“glaring omission.” Yet he offers no explanation how or why
the failure to tell the government that Bilis and Friedman paid
a retainer has any bearing on Steinback’s credibility. Regard‐
less, Steinback testified about the retainer during the eviden‐
tiary hearing and Friedman cross‐examined him on the
subject. Friedman also criticizes Steinback’s mistake in re‐
calling the location of his initial meeting with Bilis and Fried‐
man (Rockford versus Chicago). As the district court noted,
however, Steinback also testified it was “possible” they had
first met elsewhere. In the end, the district court was “best
situated to make credibility determinations in light of the to‐
tality of the evidence, including the witness’s statements and
behavior, other witness statements, and further corroborating
or contrary evidence.” Id. Friedman cannot point to a clear er‐
ror by the district court in crediting Steinback’s testimony
over his own.
Because Friedman has not shown that any privileged com‐
munications were ever shared—let alone that any breach of
privilege affected his trial—he has not shown error in the dis‐
trict court’s denial of his motion to dismiss the indictment.
B. Objections to Jury Instructions
Friedman challenges two jury instructions: (1) an “aiding
and abetting” instruction, which tracked Seventh Circuit pat‐
tern instruction 5.06(a); and (2) an “acting through another”
instruction, which tracked Seventh Circuit pattern instruction
5.06(b). In Friedman’s view, these instructions “understated
the mens rea element” required for the underlying bank fraud
charges and “misstated the law.” Friedman concedes “the de‐
fense did not object to the[se] instructional errors” at trial.
14 No. 19‐2004
Because the alleged errors were not raised in the district
court, we must decide whether Friedman has affirmatively
waived or merely forfeited this challenge. “Waiver occurs
when a party intentionally relinquishes a known right and
forfeiture arises when a party inadvertently fails to raise an
argument in the district court.” United States v. Flores, 929 F.3d
443, 447 (7th Cir. 2019).2 “We review forfeited arguments for
plain error, whereas waiver extinguishes error and precludes
appellate review.” Id. “Although passive silence with regard
to a jury instruction permits plain error review ... a defend‐
ant’s affirmative approval of a proposed instruction results in
waiver.” United States v. LeBeau, 949 F.3d 334, 341–42 (7th Cir.
2020) (quoting United States v. Natale, 719 F.3d 719, 729 (7th
Cir. 2013)). This rule is “strictly applied” to affirmative ex‐
pressions of approval, including “affirmative statements as
simple as ‘no objection’ or ‘no problem’ when asked about the
acceptability of a proposed instruction.” Id. at 342 (quoting
Natale, 719 F.3d at 730).
Here, Friedman twice approved the instructions he now
challenges on appeal. First, he confirmed during the final pre‐
trial conference that he had no objections to the government’s
proposed instructions.3 Then, before the close of evidence, the
2 Before this court decided Flores, the panel invoked Circuit Rule 40(e)
and circulated the opinion to all judges in active service, and no judge
voted to hear the case en banc. See 929 F.3d at 450 n.1.
3At the final pretrial conference, the court and Friedman’s counsel
had the following colloquy:
THE COURT: Jury instructions. There were no objections ‐‐‐
COUNSEL: There weren’t.
THE COURT: ‐‐‐ or counters. So, I will adopt the government’s in‐
structions without objection. … And I realize there may be issues that
No. 19‐2004 15
district court asked the parties to reexamine the instructions
for objections. After previously adopting the government’s in‐
structions wholesale, Friedman’s counsel responded to this
second opportunity with requests to change several instruc‐
tions, including as to the elements of bank fraud. None of
those requests involved the aiding and abetting or acting
through another instructions, much less an objection to the
validity of any pattern instruction. See United States v. Freed,
921 F.3d 716, 721 (7th Cir. 2019) (“Pattern instructions are pre‐
sumed to accurately state the law.”) Therefore, we are not
simply relying on Friedman’s “passive silence,” LeBeau, 949
F.3d at 341–42, or “inadvertent[] fail[ure] to raise an argument
in the district court,” Flores, 929 F.3d at 447. By choosing to
pursue changes to certain instructions and forgoing multiple
chances to change others, Friedman waived other possible
jury instruction challenges.
C. Motion for Acquittal
Federal Rule of Criminal Procedure 29 permits a defend‐
ant to move for a judgment of acquittal before the case is sub‐
mitted to the jury, or even after a guilty verdict is entered, if
he does not believe the evidence is sufficient to sustain a con‐
viction. FED. R. CRIM. P. 29(a), (c)(1). Friedman first moved for
judgment of acquittal under Rule 29 at the close of the gov‐
ernment’s case, which the district court took under advise‐
ment. He then renewed his Rule 29 motion after the jury
come up during the course that we need to add an instruction on here or
there or modify a couple of them at the end. We will go through the full
set again, just to make sure all of them are appropriate, before it goes to
the jury.
(Final Pretrial Conf., March 16, 2018, ECF 203 at 12.)
16 No. 19‐2004
verdict, arguing the trial evidence was insufficient to support
his conviction. The district court denied this motion. On ap‐
peal, Friedman challenges only his conviction on count five,
which charged that he knowingly caused American Eagle
Bank to fund the Blekhman loan for the fake purchase of a
2011 Porsche Panamera.
We review de novo the denial of a defendant’s motion for
judgment of acquittal. United States v. Hernandez, 952 F.3d 856,
859 (7th Cir. 2020). When faced with a challenge to the suffi‐
ciency of the evidence, “we view the evidence in the light
most favorable to the government and will overturn the jury’s
verdict only when the record contains no evidence, regardless
of how it is weighed, from which the jury could find guilt be‐
yond a reasonable doubt.” United States v. Wade, 962 F.3d 1004,
1012 (7th Cir. 2020) (citation and internal quotation marks
omitted).
To convict Friedman on count five, the government had to
prove beyond a reasonable doubt: (1) there was a scheme to
defraud a bank; (2) Friedman knowingly executed or at‐
tempted to execute the scheme; (3) Friedman acted with the
intent to defraud; (4) the scheme involved a materially false
or fraudulent pretense, representation, or promise; and (5) at
the time of the charged offense the bank’s deposits were in‐
sured by the Federal Deposit Insurance Corporation. Freed,
921 F.3d at 722. Friedman concedes the jury was properly in‐
structed on these elements and that American Eagle was an
FDIC‐insured bank.
An appellant’s challenge to the sufficiency of the evidence
is “a nearly insurmountable hurdle,” United States v. Torres‐
Chavez, 744 F.3d 988, 993 (7th Cir. 2014), which Friedman does
not clear. The government produced ample evidence of
No. 19‐2004 17
Friedman’s participation in the overall fraud scheme, includ‐
ing the Blekhman loan:
 Bilis testified about the scheme and corroborated
Friedman’s role in it;
 Purported borrowers testified they did not apply for
the fraudulent loans, receive purportedly purchased
cars from Prestige, or make payments on those loans
as typical with legitimate loans;
 Fraudulent loan documents contained Friedman’s sig‐
nature, and, as Prestige’s president, Friedman pre‐
pared Prestige’s loan and cash flow reports;
 Several witnesses testified that Friedman confessed to
the fraud;
 The Porsche Panamera was exported before the sub‐
mission of Blekhman’s fake loan application;
 The Porsche Panamera’s loan payments were made by
Prestige, not Blekhman;
 Prestige accepted payments from another customer
and a floor‐plan investor for the same Porsche
Panamera; and
 Prestige never delivered the Porsche Panamera to
Blekhman or anyone else.
The district court considered each of these facts to con‐
clude that a rational trier of fact could have found Friedman
guilty on count five. Friedman, on the other hand, describes
the above facts as a “total lack of evidence regarding [his] role
in the Blekhman loan.” That dearth is intensified, he believes,
because Blekhman did not testify at trial. Friedman’s argu‐
ments overlook that “there is nothing wrong with
18 No. 19‐2004
circumstantial evidence of guilt” to support a fraud convic‐
tion. United States v. Memar, 906 F.3d 652, 656 (7th Cir. 2018).
Indeed, Friedman made the same arguments to the jury and
the jury rejected them, as it was entitled to do. Friedman’s trial
did not “lack” evidence of his fraudulent acts. From the evi‐
dence described above, the jury reasonably inferred Fried‐
man’s knowledge of and involvement in the Blekhman loan
fraud.
D. Two Motions for a New Trial
Friedman appeals the district court’s denial of his two mo‐
tions for a new trial. Our review of a district court’s ruling on
such a motion is for an abuse of discretion. United States v.
O’Brien, 953 F.3d 449, 456 (7th Cir. 2020). A new trial “should
be granted only if the evidence preponderates heavily against
the verdict, such that it would be a miscarriage of justice to let
the verdict stand.” Id. (internal quotation marks and citation
omitted). “The ultimate inquiry is whether the defendant was
deprived of a fair trial,” and we must affirm “unless we have
a strong conviction that the district court erred, and the error
committed was not harmless.” United States v. Lawrence, 788
F.3d 234, 243 (7th Cir. 2015) (citations and internal quotation
marks omitted).
1. First New Trial Motion
We start with Friedman’s conflict of interest claim, which
repackages the arguments raised in his motion to dismiss the
indictment. Those arguments fail for reasons we already ex‐
plained: Friedman never showed that Steinback breached an
attorney‐client privilege, so the district court appropriately
denied a new trial on these grounds.
No. 19‐2004 19
Next, Friedman challenges the government’s various
“gut” references during its rebuttal closing argument. He
contends those references told the jury, in effect, to ignore ev‐
idence and to decide the case based on feelings. We have ex‐
plained, however, that “improper statements during closing
argument rarely constitute reversible error.” United States v.
Wolfe, 701 F.3d 1206, 1211 (7th Cir. 2012). A review of such
comments involves two steps. First, we consider whether the
challenged remark was improper, and second, whether the
remark deprived Friedman of a fair trial. Id. On this second
step we consider five factors: “(1) the nature and seriousness
of the misconduct; (2) the extent to which the comments were
invited by the defense; (3) the extent to which any prejudice
was ameliorated by the court’s instruction to the jury; (4) the
defense’s opportunity to counter any prejudice; and (5) the
weight of the evidence supporting the conviction.” Id. at 1212
(internal quotation marks omitted).
Juries are permitted to draw upon their own life experi‐
ences and common sense in reaching their verdicts. See, e.g.,
United States v. Brasher, 962 F.3d 254, 270 (7th Cir. 2020); United
States v. Durham, 211 F.3d 437, 441–42 (7th Cir. 2000). Fried‐
man cedes this point, arguing instead that “[g]oing with one’s
‘gut’ is the opposite of ‘common sense.’” The district court
found that the government used the “gut” phrase synony‐
mously with “common sense.” Our review of the record com‐
pels the same conclusion.
The government prefaced each of its “gut” references by
directly invoking common sense or plainly alluding to it. For
example, the government urged the jury to “look at the evi‐
dence and your gut, your common sense.” It later told the ju‐
rors to “use your common sense, check your gut, ask
20 No. 19‐2004
yourself” why a particular witness would have testified as
they did. Indeed, after Friedman’s trial counsel objected to use
of the term, the jury was told twice, once by government
counsel and then again by the court, that by “gut,” the gov‐
ernment meant “common sense.” After that, during jury in‐
structions, the district court once more instructed the jury to
use its common sense and everyday experience in weighing
and considering the evidence, and to draw reasonable infer‐
ences based on the evidence alone. True, prosecutors would
be wise to avoid any expression that invites confusion of the
government’s proof burden, including “gut” comments. But
in this case the jury was repeatedly informed that Friedman
must be presumed innocent and that the government bore the
burden of proving him guilty beyond a reasonable doubt.
Thus, even if we assume the gut remarks were improper, the
district court’s instructions, coupled with overwhelming evi‐
dence of Friedman’s role in the fraud scheme, satisfy us that
such remarks did not deprive Friedman of a fair trial. We see
no abuse of discretion here.
2. Second New Trial Motion
After Friedman lost his first motion for a new trial, he
moved again for a new trial based on newly discovered evi‐
dence: (1) a forbearance agreement between Bilis and Ameri‐
can Eagle Bank related to Bilis’s outstanding debt, and (2) a
loan agreement between the bank and Bilis’s wife. Documents
related to the forbearance agreement showed that the bank
agreed to not pursue the remedies it had against Bilis in ex‐
change for monthly payments to pay down the fraudulent
loans and Bilis’s assistance if the bank needed information for
its bankruptcy case against Friedman. As for the loan involv‐
ing Bilis’s wife, the bank’s file contained a memorandum that
No. 19‐2004 21
acknowledged Bilis’s fraud, his restitution, and his help in ob‐
taining a judgment against Friedman.
Friedman argues this “new” evidence shows the bank in‐
centivized Bilis to fabricate testimony, and that Bilis and the
bank failed to disclose the nature and extent of their ongoing
relationship. The district court denied Friedman’s motion,
finding that Friedman could have discovered these docu‐
ments sooner through due diligence, and that the agreements
were “immaterial because they were merely impeaching and
cumulative of the evidence presented to the jury.”
A post‐judgment motion resting on newly discovered ev‐
idence must show the additional evidence: “(1) was discov‐
ered after trial, (2) could not have been discovered sooner
through the exercise of due diligence, (3) is material and not
merely impeaching or cumulative, and (4) probably would
have led to acquittal.” United States v. O’Malley, 833 F.3d 810,
813 (7th Cir. 2016). Taking Friedman at his word that the evi‐
dence was discovered after trial, he knew enough underlying
facts to dig deeper into Bilis’s relationship with American
Eagle Bank. Friedman concedes he knew before trial that “Bi‐
lis was making modest restitution payments to the bank
through a settlement.” Friedman also knew that Bilis and two
bank witnesses were set to testify against him at trial. No one
disputes that the bank kept records of its “settlement” and
other arrangements with Bilis in its ordinary course of busi‐
ness. Nor does anyone disagree that the bank would have
turned over those records in response to a simple subpoena
request. The key question is whether Friedman could have
discovered the additional evidence had he taken reasonable
steps to do so. Because the answer is “yes,” Friedman’s second
new trial motion fails for that reason alone.
22 No. 19‐2004
Even if we assume otherwise, the “new” evidence was cu‐
mulative of other trial evidence. On cross‐examination, Bilis
explained that he was making two types of payments to
American Eagle Bank: one for the fraudulent loans, and the
other “for my home equity loan” involving Bilis’s wife. Fried‐
man’s counsel did not follow up on the specifics of Bilis’s
agreements with the bank. Likewise, Friedman’s counsel
passed on the opportunity to discuss these arrangements
when questioning the bank’s witnesses. And had counsel
sought those specifics, it still would not have led to an acquit‐
tal. At best, that information could have been used to impeach
the credibility of Bilis and the bank witnesses, which offers
little help to Friedman. “[T]ypically, newly discovered im‐
peachment evidence does not warrant relief under Rule 33.”
United States v. Reyes, 542 F.3d 588, 596 (7th Cir. 2008). Though
an exception to that rule exists where a defendant’s conviction
depends entirely on the uncorroborated testimony of a single
unreliable witness, see, e.g., United States v. Taglia, 922 F.2d 413,
415 (7th Cir. 1991), those are not the circumstances here.
Friedman faced a mountain of evidence apart from whatever
Bilis and bank executives had to offer. That evidence included
testimony from victims and Prestige employees, bogus loan
applications, export documents, checks, loan files, and bank
records. Friedman also eagerly impeached Bilis on cross‐ex‐
amination, pointing out that Bilis had every reason to pin the
blame on Friedman to secure a deal with the government. The
district court, too, instructed the jury that “Bilis was promised
a benefit in return for his cooperation with the government”
and to “consider [his] testimony with caution and great care.”
The jury still credited Bilis’s testimony on three of the five
counts. For these reasons, we conclude there was no abuse of
No. 19‐2004 23
discretion or other error in the district court’s denial of Fried‐
man’s second new trial motion.
E. Objections to Sentencing Enhancements
Friedman also challenges the enhancements to his sen‐
tence. We review the district court’s application of the sen‐
tencing guidelines de novo and its findings of fact for clear
error. United States v. Sheneman, 682 F.3d 623, 630 (7th Cir.
2012). We will reverse a finding for clear error only when “we
are left with the definite and firm conviction that a mistake
has been committed.” Id. (citation and internal quotation
marks omitted). A below‐guidelines sentence, like the one
here, is “presumptively reasonable against an attack by a de‐
fendant claiming that the sentence is too high.” United States
v. Dewitt, 943 F.3d 1092, 1098 (7th Cir. 2019) (citation and in‐
ternal quotation marks omitted).
Friedman first argues the district court erred in applying
an enhancement under U.S.S.G. § 3C1.1, which provides a
two‐level offense level increase if a defendant “willfully ob‐
structed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense.” Perjury is
an example of conduct warranting the enhancement for ob‐
struction, United States v. Dinga, 609 F.3d 904, 909 (7th Cir.
2010), and the district court found there was “no question”
that Friedman falsely testified at the evidentiary hearing
about sharing of privileged information with Steinback. On
appeal, Friedman insists he shared privileged information
with Steinback during Bilis’s scattered bathroom breaks, and
he again disputes the district court’s credibility findings. For
reasons already discussed, Friedman’s bathroom break story
is implausible, if not far‐fetched. See id. (“To believe
24 No. 19‐2004
[defendant’s] story would require a significant stretch of the
imagination.”). So this enhancement was correctly applied.
Next, Friedman challenges the district court’s imposition
of a two‐level sophisticated‐means enhancement. This en‐
hancement is appropriate when “the defendant intentionally
engaged in or caused the conduct constituting sophisticated
means.” United States v. Muresanu, 951 F.3d 833, 840 (7th Cir.
2020) (quoting U.S.S.G. § 2B1.1(b)(10)(C)). When determining
whether a defendant employed sophisticated means, courts
consider “the level of planning or concealment in relation to
typical fraud of its kind.” United States v. Harris, 791 F.3d 772,
781 (7th Cir. 2015); United States v. Anobah, 734 F.3d 733, 739
(7th Cir. 2013) (considering same and affirming application of
sophisticated means enhancement where scheme spread over
two states, used false documents, false loan applications, and
false documents to support the misinformation contained in
the loan applications).
The district court found that Friedman’s fraud exceeded
the garden‐variety scheme to commit bank fraud. It included:
selling single cars to multiple purchasers; orchestrating fic‐
tional car buyers to obtain loans; assuming loan payments for
bogus debtors; manipulating floor‐plan investors; misappro‐
priating personally identifiable information belonging to fam‐
ily, friends, and former customers; and covering all that up
over a span of three years, as opposed to one or two fake loan
applications. Friedman insists that loan applications con‐
tained “the most basic lies.” But the facts are to the contrary.
His fraud went far beyond simple falsities. Those lies in‐
cluded the creation of phony corporate resolution documents,
the misuse of driver’s licenses from prior legitimate loans, and
the use of already‐exported cars as collateral to secure cash to
No. 19‐2004 25
conceal the fraud. Friedman also argues that “international
shipping had long been a part of Prestige’s business model,”
suggesting the fraud was not as complex as it seems. But that
only reinforces a finding of sophistication. “[A] district court
need only find by a preponderance of the evidence facts suf‐
ficient to support the enhancement.” United States v. Sewell,
780 F.3d 839, 848 (7th Cir. 2015). Friedman exploited his pro‐
ficiency with international shipping practices to secure loans
without collateral, distinguishing his fraud from typical bank
fraud. So, the district court did not err in applying this en‐
hancement.
F. Objections to Loss Calculation and Restitution
Finally, Friedman challenges the district court’s loss calcu‐
lation of $4,722,347 and its order of restitution in that amount.
We review findings of loss amounts for clear error. United
States v. White, 883 F.3d 983, 986 (7th Cir. 2018), and will re‐
verse only if we are left with the definite and firm conviction
that a mistake has been committed, United States v. Orillo, 733
F.3d 241, 244 (7th Cir. 2013).
In calculating the loss amount, the district court included
losses suffered by floor‐plan investors, which totaled around
$2.5 million. Friedman argues the floor‐plan investors’ losses
should be excluded from the loss amount and restitution
award. The way he sees it, defrauding the floor‐plan investors
was separate from bilking the banks. The district court disa‐
greed, explaining the entire reason Prestige could “keep[] the
business afloat” was by concealing the bank fraud, and that a
key part of that scheme was “seeking more funding” from
floor‐plan investors. Nor would those investors continue their
investments had they known they were pumping cash into a
fake inventory from a dealership that survived on fraudulent
26 No. 19‐2004
loans. The court analogized the scheme to “musical chairs,”
in which money comes in from defrauded investors to pay off
defrauded banks.
On appeal Friedman contends the district court based its
loss findings on speculation and made no specific findings
that the investors’ loss amount was attributable to Friedman.
We disagree, and conclude the record firmly supports the dis‐
trict court’s finding that the solicitation, acceptance, and use
of floor‐plan investor funds kept Prestige afloat and the fraud
concealed for over three years. Friedman asks too much of the
district court. When calculating loss for sentencing, the court
“must conclude that it is more likely than not that the amount
in question is correct,” and “a reasonable estimate suffices.”
United States v. Bogdanov, 863 F.3d 630, 634 (7th Cir. 2017).
Friedman does not dispute the loss amount suffered by inves‐
tors. He merely challenges the incorporation of those losses
into his loss calculation. Because the record amply supports
that Friedman used the investors’ proceeds to pay down the
fraudulent loans, we find no error in the district court’s loss
calculation.
Friedman’s brief attack on the restitution order fails for the
same reasons. That order is reviewed for abuse of discretion,
United States v. Corrigan, 912 F.3d 422, 430 (7th Cir. 2019),
viewing the evidence in the light most favorable to the gov‐
ernment, United States v. Yihao Pu, 814 F.3d 818, 829 (7th Cir.
2016). Friedman acknowledges that the Mandatory Victims
Restitution Act requires restitution to a victim “directly
harmed by the defendant’s criminal conduct in the course of
the scheme, conspiracy, or pattern,” including bank fraud. See
18 U.S.C. § 3663A(a)(1)–(2), (c)(1)(A)(ii). He merely reiterates
his argument that the evidence at sentencing was insufficient
No. 19‐2004 27
to show the floor‐plan investors’ losses were caused by the
bank fraud scheme. Viewing the evidence in the light most
favorable to the government, we disagree. The same record
evidence and findings that supported the district court’s loss
calculation also support the restitution award.
III. Conclusion
Finding no merit in any of Friedman’s claims, his convic‐
tion and sentence for bank fraud are AFFIRMED.