United States v. Kerri Agee ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHAD GRIFFIN, MATTHEW SMITH, KELLY ISLEY, KERRI AGEE, and
NICOLE SMITH, also known as NICOLE SMITH-KELSO,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cr-00103 — Tanya Walton Pratt, Chief Judge.
____________________
ARGUED FEBRUARY 16, 2023 — DECIDED AUGUST 7, 2023
____________________
Before RIPPLE, SCUDDER, and ST. EVE, Circuit Judges.
RIPPLE, Circuit Judge. A jury convicted Chad Griffin, Mat-
1
thew Smith, Kelly Isley, Kerri Agee, and Nicole Smith (to-
gether, the “defendants”) for their roles in a scheme to
1 Nicole Smith’s name also appears in the record as Nicole Smith-Kelso or
Nicole Kelso.
2 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
defraud the Small Business Administration (“SBA”). The de-
fendants now challenge their convictions and sentences on
multiple grounds, some of which they raise jointly and some
of which individual defendants raise independently.
We affirm the convictions of all five defendants. We also
affirm the sentences of all defendants in all respects except
one; we conclude that a clerical error in a supervised release
condition in Mr. Griffin’s amended judgment should be cor-
rected. We make this correction by modifying the judgment.
I
BACKGROUND
A
To help small businesses access credit, the SBA provides
guarantees on certain loans made to small businesses. Each
guarantee represents a conditional but concrete commitment
of government funds. To obtain an SBA guarantee, a bor-
rower must comply with the SBA’s guidelines and require-
ments. The SBA, for example, has certain requirements for
borrower eligibility and prohibits the loan proceeds from be-
ing used for various purposes.
At the center of this case are two relevant guarantee pro-
grams administered by the SBA. The first, and most common,
guarantee program is the SBA’s standard 7(a) program. To
apply for a 7(a) guarantee, the lender and the borrower must
provide details about the borrower’s financial condition and
the proposed uses of the loan proceeds. SBA loan specialists
then review the applications for compliance with SBA rules.
The second program involved in this case is the SBA’s Ex-
press Program, which is designed for smaller loans. Under
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 3
this program, the SBA authorizes participating banks to issue
SBA guarantees for new loans on behalf of the SBA as long as
relevant SBA guidelines are followed. Under this program,
the SBA conducts little to no review of the loan or the accom-
panying paperwork before the loan authorization is issued.
Notably, borrowers screened out for a 7(a) loan are not al-
lowed to resubmit for an Express loan.
If a borrower defaults on a loan guaranteed by the SBA,
the lender submits a purchase request to the SBA, asking the
SBA to purchase the outstanding balance of the defaulted
loan. The SBA then decides whether to honor the guarantee.
In making its decision, the SBA reviews the purchase request
paperwork to ensure that the loan complied with SBA re-
quirements. The SBA can decline to pay a portion of the guar-
anteed amount (a “repair”) or the entire guaranteed amount
(a “denial”) if it determines that the loan was partly or wholly
ineligible for an SBA guarantee.
A lender can retain a lending service provider (“LSP”) to
package, originate, disburse, service, or liquidate SBA-
guaranteed loans on the lender’s behalf. In carrying out any
of these tasks, the LSP acts as the lender’s agent and repre-
sents the lender before the SBA. The five defendants in this
case worked at, or with, Banc-Serv Partners, LLP (“Banc-
Serv”), an LSP. Ms. Agee was the founder, president, and
chief executive officer. Ms. Isley was the chief operating of-
ficer. Ms. Smith was a relationship manager. Mr. Griffin was
an administrative assistant, then a relationship manager, and
then the chief marketing officer. Mr. Smith was a co-founder
and co-owner of Banc-Serv with Ms. Agee before leaving to
be a managing director of Bridge Business Bancorp (“BBB”),
4 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
a lender that worked with Banc-Serv to obtain SBA-
guaranteed loans.
According to the Government’s case, through their work
with Banc-Serv, the defendants engaged in a scheme to obtain
SBA guarantees for loans that did not meet the SBA’s guide-
lines and requirements. They made false statements on loan-
guarantee applications and purchase requests sent to the SBA
about matters such as borrowers’ eligibility to receive a loan
and how loan proceeds would be disbursed. For example,
they worked to obtain SBA-guaranteed financing for uses the
SBA deemed ineligible, such as paying off past-due payroll
taxes and personal debt, by falsely designating the loan pro-
ceeds going to those ineligible uses as “working capital,” or
capital to cover a business’s normal operating expenses. The
defendants also submitted applications through the Express
Program for loans and borrowers that the SBA previously had
deemed ineligible. The defendants then renewed their mis-
representations in the paperwork they submitted as part of
the purchase requests they sent to the SBA.
B
A grand jury indicted the five defendants in connection
with their roles in the scheme to defraud the SBA. The original
2
indictment contained thirteen counts. The second amended
indictment, the operative indictment in this case, contained
2 Ms. Agee, Ms. Isley, Ms. Smith, and Mr. Griffin filed motions to dismiss
this indictment. The district court dismissed Counts 5 and 13 as to
Ms. Smith and Ms. Isley. The court merged Counts 7 and 8 as well as
Counts 9 and 10. The court denied the motion to dismiss as to the remain-
der of the indictment. The Government then filed an unopposed motion
to dismiss Counts 6 through 11, which the district court granted.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 5
five counts. Count 1 charged all five defendants with conspir-
acy to commit wire fraud affecting a financial institution, in
violation of 18 U.S.C. § 1349. Counts 2 through 5 charged wire
fraud affecting a financial institution, in violation of 18 U.S.C.
§§ 1343 and 2. Counts 2 and 4 charged Ms. Agee, Ms. Isley,
and Ms. Smith, while Counts 3 and 5 charged Ms. Agee only.
The district court conducted an eight-day jury trial. The
court denied the defendants’ motions for acquittal made both
after the close of the Government’s case and after the defend-
ants rested. The jury convicted the defendants on all counts,
except that Mr. Smith was found guilty of only the lesser-in-
cluded offense of conspiracy to commit wire fraud.
After the jury verdict, the defendants renewed their mo-
tions for judgment of acquittal. The district court denied the
defendants’ motions. The court first concluded that acquittal
was not warranted for Ms. Agee, Ms. Isley, Ms. Smith, or
Mr. Griffin because, given the “lengthy trial testimony and
the numerous exhibits,” there was “relevant evidence from
which the jury could reasonably find each of the Defendants
3
guilty beyond a reasonable doubt.” The court explained that
“the evidence of a scheme to defraud the SBA (the object of
the conspiracy) was overwhelming” because the misrepre-
sentations in the presented loan documents “were aimed at
acquiring the money and property of the SBA both in the form
of the valuable guarantees as well as payment on those guar-
4
antees on the back end.” As part of the scheme, the defend-
ants routinely sent interstate wire communications from
3 R.297 at 6.
4 Id. at 5.
6 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
Banc-Serv in Indiana to SBA offices in Virginia and California.
The court also explained that, “[f]or most of the loans dis-
cussed at trial, a financial institution was put at a risk of loss,”
as “[t]he parties stipulated that the banks at issue … were all
qualifying financial institutions” and “[t]he banks’ risk was
clear from the testimony of the SBA witnesses and a lender
who all said that the bank that made the loan would be the
one that could be charged a repair or a complete denial of the
5
guarantee.” The defendants’ communications “showed their
understanding of the SBA’s rules and regulations and how
they would circumvent those rules and regulations by chang-
6
ing information on documents to get the SBA’s approval.”
The district court also concluded that an acquittal for
Mr. Smith was not warranted. The court explained that the
record was “not devoid of any evidence from which the jury
could find” him guilty beyond a reasonable doubt of conspir-
acy to commit wire fraud, noting that neither it nor the jury
was required to “examine each shred of evidence in isola-
7
tion.”
The Probation Office prepared a Presentence Investigation
Report (“PSR”) for each defendant. The defendants objected
to the increase in offense level under U.S.S.G. § 2B1.1(b)(1)
based on loss amount. The PSRs concluded that the proper
measure of actual loss was the amount that the SBA spent
purchasing the outstanding balances of the fraudulent SBA-
5 Id. at 5–6. The parties stipulated that BBB was a lending institution but
not a financial institution within the meaning of 18 U.S.C. § 20.
6 Id. at 6.
7 Id. at 10.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 7
guaranteed loans on which the borrowers had defaulted. The
defendants contended that their conduct was not the legal
cause of the SBA’s purported loss because their actions did
not affect the borrower’s creditworthiness or the SBA’s will-
ingness to guarantee a loan. They also argued that the loss
amount attributed to the defendants was incorrect under the
government benefits rule. The defendants objected to the res-
titution amount on the same grounds as the loss amount. The
defendants also objected to the application of the sophisti-
cated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C).
At each defendant’s sentencing hearing, the district court
adopted the Probation Office’s calculation of the loss amount
attributable to the defendant. The court determined that the
actual loss amount for Ms. Agee, Ms. Isley, and Ms. Smith
was $2,289,681.30 based on the involvement of each with the
following fraudulent loans: Rodgers Finishing Tools; Rec
Room; Larson Cement; Lithocraft #1, #2, and #3; Indiana Base-
ball Academy; and Touchton. The court concluded that
Mr. Smith was responsible for $1,651,450.30 in actual loss to
the SBA due to his involvement in the Rodgers Finishing
Tools, Larson Cement, and Touchton loans and that Mr. Grif-
fin was responsible for $685,022.30 due to his involvement in
the Larson Cement and Touchton loans. The court ordered
restitution for each defendant in accordance with the loss
amount attributed to him or her. The court applied the sophis-
ticated means enhancement to each defendant. The court sen-
tenced each defendant to a term of imprisonment, plus a term
of supervised release. The court also imposed a special assess-
ment on each defendant and a $10,000 fine on Ms. Agee.
Each defendant timely appealed.
8 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
II
DISCUSSION
A. Constructive Amendment of the Indictment
We first consider whether the Government constructively
8
amended Count 1 of the second amended indictment at trial.
The Fifth Amendment’s Grand Jury Clause provides that
a defendant cannot be tried on charges that are not made in
the indictment. See Stirone v. United States, 361 U.S. 212, 217–
18 (1960). “A constructive amendment to an indictment oc-
curs when either the government (usually during its presen-
tation of evidence and/or its argument), the court (usually
through its instructions to the jury), or both, broadens the pos-
sible bases for conviction beyond those presented by the
grand jury.” United States v. Rogers, 44 F.4th 728, 735 (7th Cir.
2022) (quoting United States v. Cusimano, 148 F.3d 824, 829 (7th
Cir. 1998)).
Here, the defendants’ constructive amendment argument
is predicated on a mistaken view of the governing law regard-
ing the requisite object of the conspiracy. The defendants sub-
mit that the Government constructively amended the indict-
ment when it “put[] on a case to prove that the Defendants
engaged in a conspiracy, the object of which was to defraud the
SBA,” while the “indicted offense … was conspiracy, the
8 Because the defendants did not raise squarely a constructive amendment
objection in the district court, we review for plain error and “will only re-
verse if the constructive amendment constituted ‘a mistake so serious that
but for it the [defendant] probably would have been acquitted.’” United
States v. Turner, 836 F.3d 849, 864 (7th Cir. 2016) (quoting United States v.
Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)). We note, however, that we
would reach the same result under de novo review.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 9
object of which was to commit wire fraud affecting a financial
9
institution in violation of 18 U.S.C. § 1349.” They argue that
“a conspiracy, the object of which is to defraud the SBA, can-
not be pursued under 18 U.S.C. § 1349” because “[t]he SBA is
10
not a financial institution.”
We cannot accept this argument. Conspiracy to commit
wire fraud affecting a financial institution in violation of 18
U.S.C. § 1349 can consist of defrauding the SBA; the Govern-
ment does not have to prove, as the defendants suggest, that
the object of the conspiracy was to defraud a financial institu-
tion. The conspiracy statute, 18 U.S.C. § 1349, provides that
the object of the conspiracy must be the commission of “any
offense under [the relevant] chapter,” which includes wire
fraud under § 1343. The statute of limitations for wire fraud is
generally five years, but, if the wire fraud “affects a financial
institution,” a ten-year statute of limitations applies. 18 U.S.C.
§ 3293(2). We have explained that in a wire fraud case the “ob-
ject of the fraud is not an element of the offense.” United States
v. Marr, 760 F.3d 733, 743–44 (7th Cir. 2014) (quoting United
States v. Pelullo, 964 F.2d 193, 216 (3d Cir. 1992)). Therefore, to
convict someone of wire fraud affecting a financial institution,
“the wire fraud statute only requires the government to prove
that a defendant intended for his or her scheme to defraud
someone[;] a financial institution does not need to be the in-
tended victim.” Id. at 744; see also United States v. O’Brien, 953
F.3d 449, 456 (7th Cir. 2020) (discussing mail fraud affecting a
9 Appellants’ Joint Br. 23.
10 Appellants’ Joint Reply 1.
10 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
11
financial institution). For wire fraud to affect a financial in-
stitution, it simply must expose the financial institution to a
“new or increased risk of loss.” United States v. Serpico, 320
F.3d 691, 694–95 (7th Cir. 2003).
At trial, the Government consistently maintained, and the
district court consistently understood, the theory of the case
to be that the defendants conspired to defraud the SBA by ob-
taining SBA guarantees for loans that did not meet the SBA’s
requirements and that the scheme resulted in an increased
risk of loss for the financial institutions because, if the SBA
discovered that a loan was ineligible and denied or repaired
12
the guarantee, the financial institution would bear the loss.
11 The Supreme Court has stated that it “construe[s] identical language in
the wire and mail fraud statutes in pari materia.” Ciminelli v. United States,
143 S. Ct. 1121, 1126 n.2 (2023) (quoting Pasquantino v. United States, 544
U.S. 349, 355 n.2 (2005)); see also United States v. Leahy, 464 F.3d 773, 786
(7th Cir. 2006) (citing United States v. Stephens, 421 F.3d 503, 507 (7th Cir.
2005)) (explaining that cases construing the mail fraud statute are equally
applicable to the wire fraud statute).
12 See, e.g., R.189 ¶¶ 12, 26 (second amended indictment) (“If SBA rules
were not followed, the SBA could deny the guarantee, resulting in losses
to the lending institution. … The Defendants … would seek to obtain SBA
guarantees for loans that did not meet SBA’s guidelines and require-
ments.”); Trial Tr. at 1587–89 (Government’s closing argument) (“[T]hese
banks were at a risk of loss by the defendants’ fraud scheme[] because if
the SBA uncovered the scheme and denied the guaranty, the banks would
be on the hook for the loss to the SBA. … So what is the fraud conspiracy
here? … It was the agreement to deceive the SBA in order to get the SBA
to provide its valuable loan guaranties and pay out on those guaranties on
the back end.”); R.297 at 5–6 (district court’s denial of motions for judg-
ment of acquittal) (“[T]he evidence of a scheme to defraud the SBA (the
object of the conspiracy) was overwhelming. … The parties stipulated that
the banks at issue … were all qualifying financial institutions for purposes
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 11
This understanding was correct and in accordance with the
13
principles we just have articulated. The indictment was not
constructively amended.
B. Protectable Money or Property Interest
The defendants also submit that they are entitled to a judg-
ment of acquittal because the Government did not prove that
the wire fraud scheme deprived the SBA of a protectable
money or property interest. As they see it, the Government
chose to pursue a “right to control” theory of money or
of the statute criminalizing wire fraud affecting a financial institution. The
banks’ risk was clear from the testimony of the SBA witnesses and a lender
who all said that the bank that made the loan would be the one that could
be charged a repair or a complete denial of the guarantee.”).
13 We therefore also reject Ms. Isley’s contentions that the indictment
failed to allege sufficiently, and that the Government failed to establish,
that the defendants exposed any financial institutions to a “new or in-
creased risk of loss.” Her theory is that, to expose a financial institution to
a new or increased risk of loss, the defendants’ misrepresentations had to
cause the SBA to issue “riskier” loans that were more likely to default. She
also submits that the lenders of the underlying loans were aware of the
defendants’ conduct. As we have explained, under the Government’s the-
ory, the defendants’ scheme exposed financial institutions to the requisite
new or increased risk of loss. We also reject Ms. Isley’s contention that
Counts 3–5 of the indictment should have been dismissed because those
counts are predicated upon requests for the SBA to honor previously is-
sued guarantees and did not create any new or increased risk of loss for a
financial institution, and therefore the ten-year statute of limitations for
wire fraud affecting a financial institution should not have been applied.
As the Government explains, “[t]he use of the wires need not be an essen-
tial element of the scheme; it is enough if the use is ‘incident to an essential
part of the scheme’ or ‘a step in the plot.’” United States v. Sheneman, 682
F.3d 623, 629 (7th Cir. 2012) (quoting Schmuck v. United States, 489 U.S. 705,
710–11 (1989)).
12 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
property fraud in this case—namely, “that the SBA has a
14
property interest in making sure that its rules are followed.”
We review this issue de novo. See United States v. Rivera, 901
F.3d 896, 900 (7th Cir. 2018).
The federal wire fraud statute, 18 U.S.C. § 1343, makes it a
crime to use interstate wires for “any scheme or artifice to de-
fraud, or for obtaining money or property by means of false
or fraudulent pretenses, representations, or promises.” The
Supreme Court has made it clear that the wire fraud statute
“criminalize[s] only schemes to deprive people of traditional
property interests.” Ciminelli v. United States, 143 S. Ct. 1121,
1124 (2023) (citing Cleveland v. United States, 531 U.S. 12, 24
(2000)); see also Kelly v. United States, 140 S. Ct. 1565, 1571–74
(2020). A scheme to alter a regulatory decision, such as a
scheme to obtain a state or municipal license from a govern-
ment regulator or to realign access lanes to a bridge, is not one
to appropriate the Government’s property. See Cleveland, 531
U.S. at 20; Kelly, 140 S. Ct. at 1572. A scheme to defraud a for-
eign government of tax revenue, on the other hand, violates
18 U.S.C. § 1343 because “an entitlement to collect money” is
“‘property’ as that term ordinarily is employed.” Pasquantino
v. United States, 544 U.S. 349, 355–56 (2005) (citing McNally v.
United States, 483 U.S. 350, 358 (1987); Leocal v. Ashcroft, 543
U.S. 1, 9 (2004)).
In Ciminelli, the Supreme Court recently rejected the Sec-
ond Circuit’s “right to control” theory of fraud, under which
a defendant could commit wire fraud if “he scheme[d] to de-
prive the victim of potentially valuable economic information
necessary to make discretionary economic decisions.” 143
14 Appellants’ Joint Br. 29.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 13
15
S. Ct. at 1124 (quotation marks omitted). Specifically, the
Court reaffirmed its earlier holdings that a successful prose-
cution under the wire fraud statute requires the Government
to prove that the defendants had engaged in a deception and
that the object of their fraud was money or property. The
right-to-control theory, held the Court, is not a sufficient sub-
stitute for money or property because, at the time of the en-
actment of the wire fraud statute, “[t]he so-called ‘right to
control’ [wa]s not an interest that had ‘long been recognized
as property.’” Id. at 1127 (quoting Carpenter v. United States,
484 U.S. 19, 26 (1987)).
Contrary to the defendants’ assertions, the Government
did not pursue a right-to-control theory of fraud in this case;
rather, the Government’s allegations focused explicitly on the
defendants’ attempts to deprive the SBA of loan guarantees
and the millions of dollars the SBA lost paying out on these
loan guarantees. These allegations are explicit in the indict-
16
ment, in the Government’s opening and closing
15 We invited the parties to submit supplemental memoranda stating
how, in their view, the Supreme Court’s recent decision in Ciminelli v.
United States, 143 S. Ct. 1121 (2023), might impact our resolution of this
issue.
16 R.189 ¶¶ 26, 27 (second amended indictment) (“The Defendants …
would seek to obtain SBA guarantees for loans that did not meet SBA’s
guidelines and requirements. … [T]he SBA incurred losses by purchasing
loans that, had it known of the misrepresentations made in the loan files
by the co-conspirators, it never would have guaranteed in the first place.
… [T]he Defendants … originated dozens of loans, totaling over $10 mil-
lion in disbursements, which were not eligible for SBA guarantees.”).
14 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
17 18
statements, in the proof at trial, and in the instructions
19
given to the jury by the district court.
17 Trial Tr. at 46–47 (Government’s opening statement) (“Fraud is nothing
more than lies that are told to separate someone from their money or prop-
erty. Each of the defendants tricked the SBA into guaranteeing loans it
never would have guaranteed had it known the truth about their lies.
These guarantees were valuable. They were promises by the SBA to pay a
lender for financial losses if the borrowers defaulted. … To succeed in
their fraud, to ensure that banks continued to hire Banc-Serv, the defend-
ants had to deceive the SBA into paying out on those guarantees if the
loans defaulted, and succeed they did. The SBA paid out more than $2 mil-
lion in fraudulent loans that had defaulted.”); id. at 1586–89 (Govern-
ment’s closing argument) (“Now, fraud, very simply, is lying to get money
or property, like a payout on an SBA guaranty or the guaranty itself, be-
cause, as we’ll argue, the SBA guaranty itself is property. It’s the SBA’s
right to manage its funds and guard against the risk of loss. It has a value
all on its own. … So what is the fraud conspiracy here? … It was the agree-
ment to deceive the SBA in order to get the SBA to provide its valuable
loan guaranties and pay out on those guaranties on the back end.”).
18 E.g., id. at 89–92 (testimony of SBA official) (explaining that “[t]he gov-
ernment provides a guarantee of a certain percentage, and [it] will repay
the lender if the loan itself that they’re making defaults,” that the SBA is
“given a budget by … Congress … and … can make as many loans as …
covers that dollar amount,” and that the SBA has “run out of money to
guarantee loans in a given year”).
19 R.229-1 at 25, 31 (final jury instructions) (“A scheme to defraud is a
scheme that is intended to deceive or cheat another and to obtain money
or property or cause the potential loss of money or property of another by
means of materially false or fraudulent pretenses, representations or
promises. … [E]vidence of th[e] various violations [of the SBA’s rules and
regulations] does not necessarily mean that a crime has been committed,
but that same evidence may or may not be relevant in determining a De-
fendant’s state of mind, and whether a Defendant acted with intent to de-
fraud.”).
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 15
The defendants latch onto some language in the Govern-
ment’s case, such as the Government’s statement during clos-
ing arguments that the SBA guarantee is “the SBA’s right to
20
manage its funds and guard against the risk of loss.” Never-
theless, a fair reading of the record makes clear that the Gov-
ernment’s case is grounded in the defendants’ use of false rep-
resentations to obtain loan guarantees from the SBA that
would not have been granted if the true facts had been made
known. These guarantees, that committed the SBA to stand
behind a significant portion of the loan amount in case of de-
fault, are most certainly “property” as required by the wire
fraud statute. See, e.g., Pasquantino, 544 U.S. at 356 (“The right
to be paid money has long been thought to be a species of
property.”); United States v. Leahy, 464 F.3d 773, 787–88 (7th
Cir. 2006) (concluding that defendants’ scheme, which caused
Chicago to hire fraudulently certified contractors it would not
otherwise have hired, “precisely and directly targeted Chi-
cago’s coffers and its position as a contracting party”).
Ms. Isley, relying on United States v. Kelerchian, 937 F.3d
895 (7th Cir. 2019), additionally submits that the scheme, as
alleged in the indictment and proved at trial, is outside the
scope of the wire fraud statute because none of the defend-
ants’ fraudulent statements went to “essential elements” of
the loan transactions, which she understands to be the credit-
worthiness or repayment ability of the borrowers. In Keler-
chian, in relevant part, we considered whether submitting
fraudulent statements to a machinegun manufacturer to ob-
tain machineguns for private individuals, in violation of fed-
eral law, amounted to the deprivation of a property interest,
20 Trial Tr. at 1586.
16 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
as required for wire fraud. See id. at 909 (citing Cleveland, 531
U.S. at 19). We concluded that it did, explaining that the de-
fendant’s “fraud deprived [the manufacturer] of a cognizable
property interest in avoiding illegal sales of its products.” Id.
at 914. We emphasized that we decided only the issue that
was before us, “focused on illegal imports of highly regulated
and dangerous machineguns,” and merely noted that
“schemes to defraud a party into entering a contract it would
not enter if it had been told the truth, but where fraudsters
deliver the agreed money, goods, or services are close to the
edge of the reach of the wire and mail fraud statutes.” Id. at
913. Whatever the fate of Kelerchian after Ciminelli, we have an
entirely different situation before us. As we already have ex-
plained, the Government’s theory of this case was that the de-
fendants’ scheme deprived the SBA of property in the form of
valuable loan guarantees that it otherwise would not have
granted or paid out on.
C. Jury Instructions
We now turn to the jury instructions. Ms. Agee first sub-
mits that the district court erred in declining to give her pro-
posed jury instruction regarding ambiguity in the SBA’s
rules. We review a district court’s denial of a defendant’s re-
quested jury instruction de novo. See United States v. Lomax,
816 F.3d 468, 475–76 (7th Cir. 2016). A defendant is entitled to
a jury instruction that encompasses her theory of defense only
if: “(1) the instruction represents an accurate statement of the
law; (2) the instruction reflects a theory that is supported by
the evidence; (3) the instruction reflects a theory which is not
already part of the charge; and (4) the failure to include the
instruction would deny the [defendant] a fair trial.” United
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 17
States v. Walker, 746 F.3d 300, 307 (7th Cir. 2014) (quoting
United States v. Swanquist, 161 F.3d 1064, 1075 (7th Cir. 1998)).
Ms. Agee proposed a jury instruction regarding ambigu-
ity, which stated, in relevant part:
You may find that ambiguity exists in Small
Business Administration operating procedures
and permitted uses of loan proceeds. If you find
that ambiguity exists in the SBA protocols com-
municated and available to the defendant, then
to prove that she conspired to defraud the
agency, the government must prove beyond a
reasonable doubt that there is no reasonable in-
terpretation of the situation that would make
the defendant’s representations a good-faith ef-
21
fort to comply.
The district court declined to give the instruction because it
concluded that there was no evidence of ambiguity with re-
spect to any regulation, rule, or law. Ms. Agee now submits
that she was denied a fair trial because the district court “in-
vaded the province of the jury” when it found that there was
22
no evidence of ambiguity in any relevant rule or law. In her
view, there was evidence that the SBA’s rules on “bridge” or
“piggyback” loans were ambiguous.
We agree with the Government that the good faith instruc-
tion given by the district court adequately captured the theory
21 R.163 at 34.
22 Agee’s Br. 10.
18 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
of defense reflected in Ms. Agee’s proposed ambiguity in-
struction—that is, that she did not have the requisite intent to
defraud because she acted in compliance with a reasonable
interpretation of the SBA’s rules. The district court’s good
faith instruction stated, in relevant part:
If a defendant acted in good faith, then the
defendant lacked the intent to defraud required
to prove the offenses of all counts charged in
Counts 1 through 5. …
A defendant acted in good faith if, at the
time, the defendant honestly believed the truth-
fulness or validity of the statements or omis-
sions that the government has charged as being
false or fraudulent.
A defendant does not have to prove his good
faith; rather, the government must prove be-
yond a reasonable doubt that the defendant
acted with the intent to defraud as charged in
23
Counts 1 through 5.
Contrary to Ms. Agee’s assertion, this instruction properly al-
located the burden of proof; it did not place the burden on the
defendant to produce evidence of good faith. Furthermore,
the district court’s declining to give Ms. Agee’s proposed am-
biguity instruction did not deny her a fair trial. The district
court properly instructed the jury on each of the elements nec-
essary to convict Ms. Agee of each charge. And, as the Gov-
ernment notes, Ms. Agee did argue at trial that she believed
that she was acting in compliance with a “reasonable
23 R.229-1 at 32.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 19
24
interpretation” of the SBA’s rules. The district court did not
err in declining to give the proposed ambiguity instruction.
Cf. United States v. Choiniere, 517 F.3d 967, 970–72 (7th Cir.
2008) (concluding that the district court did not err in declin-
ing to give a proposed jury instruction regarding the require-
ments of specific regulations because the instructions the jury
received contained the defendant’s theory that he did not
have the intent to defraud and because the defendant pre-
sented evidence, and made arguments during closing argu-
ment, regarding his intended compliance with the regula-
tions).
Ms. Agee also submits that her convictions on Counts 2
through 5 should be vacated because the district court’s issu-
ance of a Pinkerton instruction projected the “error” in the con-
spiracy charge (an error caused, she submits, by the Govern-
ment’s constructive amendment of the indictment and the
district court’s failure to give her ambiguity instruction) onto
25
Counts 2 through 5. She did not object to the Pinkerton in-
struction at trial, so we review only for plain error. See United
States v. Lawson, 810 F.3d 1032, 1040 (7th Cir. 2016). Because
there was no constructive amendment of the indictment and
no error in declining to give the ambiguity instruction, there
24 See, e.g., Trial Tr. at 1648–49.
25 Pinkerton v. United States, 328 U.S. 640, 647–48 (1946), holds that a per-
son is liable for an offense committed by a coconspirator when its com-
mission is reasonably foreseeable to that person and is in furtherance of
the conspiracy.
20 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
also was no error, much less plain error, in the district court’s
issuance of a Pinkerton instruction.
D. Sufficiency of the Evidence
Mr. Griffin and Mr. Smith each contend that they are enti-
tled to a judgment of acquittal because there is insufficient ev-
idence that they knowingly joined the conspiracy. We review
the denial of a motion for judgment of acquittal de novo and
“construe the evidence in the light most favorable to the gov-
ernment.” United States v. Weimert, 819 F.3d 351, 354 (7th Cir.
2016). Our inquiry is whether a rational trier of fact could
have found the elements of the crime beyond a reasonable
26
doubt. See id. We “will not reweigh the evidence or invade
the jury’s province of assessing credibility and will overturn
the verdict only if the record contains no evidence, regardless
of how it is weighed, from which the jury could find guilt be-
yond a reasonable doubt.” Rivera, 901 F.3d at 900–01 (cleaned
up) (quoting United States v. Peterson, 823 F.3d 1113, 1120 (7th
Cir. 2016)). Although we have described the defendant’s bur-
den as a “nearly insurmountable hurdle,” we also have noted
that “the height of the hurdle the defendant must overcome
depends directly on the strength of the government’s evi-
dence.” United States v. Vizcarra-Millan, 15 F.4th 473, 506 (7th
Cir. 2021) (quoting United States v. Johnson, 874 F.3d 990, 998
26 See also Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (“[T]he critical
inquiry on review of the sufficiency of the evidence to support a criminal
conviction must be … to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt. … [T]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” (footnote
omitted)).
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 21
(7th Cir. 2017)) (citing United States v. Garcia, 919 F.3d 489,
496–97 (7th Cir. 2019)).
We begin with the elements of the offense. To prove con-
spiracy in violation of 18 U.S.C. § 1349, the Government must
prove that “(1) two or more people agreed to commit an un-
lawful act, and (2) the defendant on trial knowingly and in-
tentionally joined in the agreement.” United States v. Avila, 557
F.3d 809, 814 (7th Cir. 2009). A conspiracy does not exist
“when each of the conspirators’ agreements has its own end,
and each constitutes an end in itself.” Id. (quoting United
States v. Sababu, 891 F.2d 1308, 1322 (7th Cir. 1989)). “[F]or a
single, overarching conspiracy to exist,” the participants
“must have been aware of each other and must do something
in furtherance of some single, illegal enterprise.” Id. (quoting
United States v. Bustamante, 493 F.3d 879 (7th Cir. 2007), over-
ruled on other grounds by United States v. Tinsley, 62 F.4th 376(7th Cir. 2023)). We have explained that “a tacit agreement
may support a conspiracy conviction.” United States v. Han-
dlin, 366 F.3d 584, 589 (7th Cir. 2004). Furthermore, an “agree-
ment may be proved by circumstantial evidence,” and “[s]uch
evidence may be aimed at showing that the co-conspirators
embraced the criminal objective of the conspiracy, the con-
spiracy continued onward towards its common goal, there
were prolonged and/or cooperative relationships, or the vari-
ous transactions followed a similar sequence of events.” Id. at
589–90 (citations omitted).
We now turn to the evidence the Government presented
against Mr. Griffin and Mr. Smith at trial. The Government
presented evidence showing that Mr. Griffin and Mr. Smith
knew the nature of the scheme to defraud the SBA. Although
the Advance Pharmaceutical loan did not reach the SBA
22 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
application stage, the plan was that BBB would issue a loan to
pay debt owed to the Department of Justice and the BBB loan
would be paid back with proceeds from an SBA-guaranteed
loan. A BBB memorandum shows that Mr. Smith approved
the loan, to be used to pay off the Department of Justice debt,
for underwriting by BBB. In an email to Mr. Smith, copying
Mr. Griffin, Ms. Isley noted that the SBA had said that “it
would be a no-no for one federal agency to guaranty a loan to
pay a fine levied by another federal agency”; “the only way
around this,” she continued, was for BBB “to do an interim
27
note and state it [wa]s for working capital.” She explained
that they would “have to tell [the] SBA what the funds were
used for” and therefore warned that they could “not state an-
ywhere in [their] note it [wa]s for the payment of a govern-
28
ment agency fine.” Furthermore, when the SBA denied
Banc-Serv’s request for additional working capital on the Hef-
ner Financial loan because it realized the funds would be used
to pay debt that was ineligible for SBA assistance, Ms. Agee
forwarded the SBA’s letter, copying Mr. Griffin, and wrote:
29
“They got us ….”
The Government also presented evidence showing the in-
volvement of both Mr. Griffin and Mr. Smith in the scheme to
disguise the payment of back taxes as working capital for the
Larson Cement loan. Ms. Agee copied both Mr. Griffin and
Mr. Smith on an email in which she explained that they could
27 R.423-17 at 1.
28 Id.29 R.423-21 at 1, 3.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 23
“not show [they we]re paying past due taxes” and so the
funds “would have to be categorized as working capital” and
they “would have to justify what the eligibility of this much
30
working capital would be used for.” Ms. Agee, copying
Mr. Griffin, then indicated that she would review the loan pa-
31
perwork “with Chad [Griffin] when he return[ed].”
Mr. Griffin, copying Mr. Smith, then sent an email stating that
they needed “the use of proceeds in the write-up to say the
funds that w[ould] be used to pay the Accrued Liabilities
(Payroll Taxes) [we]re for working capital” because the SBA
would not allow the payment of “back taxes with loan pro-
ceeds” and the SBA would “trace this back to the tax re-
32
turns.” After the lender requested that Banc-Serv set aside
the SBA application until further notice because the IRS had
filed a lien, Ms. Agee emailed Mr. Griffin, copying Mr. Smith,
and stated that, “[p]er Matt [Smith],” they were “going to
move forward with the current SBA application as is and try
33
to do everything simultaneously.” Mr. Smith’s signature
also appears on two letters to the SBA and two SBA loan ap-
plication documents in connection with the Larson Cement
loan, although there is evidence suggesting that Ms. Agee
signed his name on some of these documents. The SBA faxed
the loan authorization to Mr. Smith at BBB.
30 R.432-8 at 2.
31 Id. at 1.
32 R.424-1 at 1.
33 R.424-2 at 1.
24 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
The Government also presented evidence connecting
Mr. Griffin and Mr. Smith to the plan to disguise the fact that
Touchton loan proceeds would be used to pay past-due fed-
eral payroll taxes. A BBB memorandum, which noted that the
loan would be used to pay off the taxes, indicated that
Mr. Smith approved the loan for underwriting by BBB. After
Mr. Griffin emailed the loan application to the SBA, the SBA
sent him a screen-out letter, stating that it was unable to pro-
cess the loan application because “SBA loan proceeds [cannot]
34
be used to pay past-due Federal and state payroll taxes.” The
letter requested “proof that a repayment plan with the IRS
ha[d] been made and source and terms of funds that w[ould]
35
be used to pay the past-due payroll tax.” Mr. Griffin re-
sponded that “[t]he past due taxes w[ould] be paid with pro-
ceeds from the Line of Credit provided by Bridge Business
Bancorp” and that the taxes “should not have been part of the
36
SBA use of proceeds.” The SBA sent the loan authorization
for the Touchton loan to Mr. Griffin. Emails from Ridgestone
Bank, which Ms. Agee forwarded to Mr. Griffin, stated that
Ridgestone needed BBB “to provide an interim loan … to pay
off delinquent taxes from Touchton Industries” and that
Ridgestone would “pay off the interim loan from SBA pro-
ceeds, once [it] receive[d] evidence from the proper taxing
34 See R.425-28; R.425-29 at 3.
35 R.425-29 at 3.
36 Id. at 1.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 25
37
authority that the delinquent taxes ha[d] been paid.” Ridge-
stone noted that this was a “requisite from the SBA” and that
38
they did “not want to jeopardize the authorization.” Ap-
proximately two weeks later, Mr. Smith sent an email to
Ridgestone in which he proposed using a BBB loan to pay off
the IRS and “Ridgestone Bank, would then, (so long as they
ha[d] received the stamped letter from the IRS, acknowledg-
ing that the IRS ha[d] received the $157,366.72), on the next
business day, close the … SBA Loan, and pay down the” BBB
39
loan. In that email, he stated that he was copying Ms. Agee
for Banc-Serv’s “concurrence on the structure of the closing as
40
it relates to compliance with the SBA Authorization.” Ridge-
stone responded and asked whether the proposed plan “fol-
low[ed] the terms of the SBA authorization” and what “the
41
use of proceeds in the authorization” was. Ms. Agee re-
sponded to Mr. Smith and Ridgestone, copying Mr. Griffin,
that the SBA use of proceeds provided for “working capital
42
which c[ould] payoff Bridge,” among other costs.
The Government also presented evidence of Mr. Smith’s
participation in fraud with respect to the Rodgers Finishing
Tools loan. The Government presented the testimony of
37 R.425-17 at 1.
38 Id.
39 R.425-18 at 2.
40 Id. at 2–3.
41 Id. at 2.
42 Id. at 1.
26 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
Bradley Crawford, who sought an SBA-guaranteed loan to
purchase the Rodgers Finishing Tools business. To obtain the
loan, the SBA required him to inject at least $50,000 into the
business as equity capital. Crawford, however, did not have
the necessary $50,000. He testified that, on a phone call with
Ms. Agee and Mr. Smith, who was still at Banc-Serv at that
time, he was instructed to bring a $50,000 personal check to
the loan closing, which would be reimbursed from the work-
ing capital portion of the loan upon close. Although Crawford
testified that “Kerri [Agee] was the majority of the conversa-
tion” and he could not recall anything specific that Mr. Smith
said during the phone conversation, he was clear that “[b]oth
talked,” estimating that Mr. Smith was responsible for twenty
43
percent of the conversation.
Given the evidence the Government presented at trial, we
conclude that neither Mr. Griffin nor Mr. Smith is entitled to
a judgment of acquittal. The Government presented sufficient
evidence, viewed as a whole and in the light most favorable
to the Government, from which a rational juror could con-
clude beyond a reasonable doubt that both Mr. Griffin and
Mr. Smith knowingly joined the conspiracy. Although the ev-
44
idence is not overwhelming with respect to Mr. Smith, a ju-
ror could conclude, based on the evidence in the record, that
Mr. Smith, with knowledge of the scheme to defraud, partici-
pated in moving the loan transactions forward.
43 Trial Tr. at 994–95, 1050–52.
44 We are mindful of the role that Mr. Smith appears to have played in
this scheme. Although Mr. Smith was not employed at Banc-Serv during
much of the conduct at issue in this case, he facilitated the fraudulent
transactions in his role as a lender working with Banc-Serv.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 27
E. Sentencing Arguments
Finally, we turn to the defendants’ sentencing arguments.
They contend that the district court erred in calculating the
loss amount for purposes of the loss enhancement under
U.S.S.G. § 2B1.1(b), in calculating restitution, in applying the
sophisticated means enhancement to Mr. Griffin and
Mr. Smith, and in imposing a condition of supervised release
on Mr. Griffin in the amended final judgment that is different
than the condition announced at his sentencing hearing. We
consider each contention in turn.
i. Loss Amount
The defendants submit that the district court should not
have applied a loss enhancement under U.S.S.G. § 2B1.1(b) in
connection with the Touchton, Larson Cement, Rodgers Fin-
ishing Tools, Lithocraft #2, and Lithocraft #3 loans because the
Government failed to prove that the defendants had caused
the SBA’s actual loss on those loans. We review legal interpre-
tations of the Sentencing Guidelines de novo and factual find-
ings as to loss amount for clear error. See United States v.
Moose, 893 F.3d 951, 954 (7th Cir. 2018) (citing United States v.
White, 883 F.3d 983, 986 (7th Cir. 2018)). The Government has
the burden of proving the amount of loss by a preponderance
of the evidence. See United States v. Williams, 892 F.3d 242, 250
(7th Cir. 2018) (quoting United States v. Johns, 686 F.3d 438, 454
(7th Cir. 2012)). “When calculating the loss for purposes of
sentencing, the district court is only required to make ‘a rea-
sonable estimate of the loss.’” United States v. Love, 680 F.3d
994, 999 (7th Cir. 2012) (quoting United States v. Green, 648 F.3d
569, 583 (7th Cir. 2011)).
28 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
The Sentencing Guidelines provide that, for fraud crimes,
a defendant’s offense level should be increased according to
the amount of “loss” resulting from the offense. See U.S.S.G.
§ 2B1.1(b). “Loss” is the “greater of actual loss or intended
loss.” Id. § 2B1.1 cmt. n.3(A). “Actual loss,” which the district
court employed in this case, is “the reasonably foreseeable pe-
cuniary harm that resulted from the offense.” Id. § 2B1.1 cmt.
n.3(A)(i). Pecuniary harm is “reasonably foreseeable” if “the
defendant knew or, under the circumstances, reasonably
should have known,” that it “was a potential result of the of-
fense.” Id. § 2B1.1 cmt. n.3(A)(iv). We have explained that, in
the determination of loss amount, “[c]ausation includes two
distinct principles, cause in fact, commonly known as ‘but for’
causation, and legal causation.” United States v. Whiting, 471
F.3d 792, 802 (7th Cir. 2006).
The defendants first contend that their conduct did not
cause the SBA’s loss because their misrepresentations did not
45
“skew the SBA’s credit evaluation” of the loans. In the
45 Appellants’ Joint Br. 35. The defendants submit that our recent decision
in United States ex. rel. Calderon v. Carrington Mortgage Services, LLC, 70
F.4th 968 (7th Cir. 2023), supports their actual loss arguments. In Calderon,
we affirmed a grant of summary judgment for a defendant sued under the
False Claims Act because the plaintiff had not presented evidence from
which a jury could conclude that the defendant’s misrepresentations re-
garding certifications of residential mortgage loans for insurance coverage
caused the subsequent defaults of the loans. Id. at 981. (The plaintiff had
abandoned reliance on any other basis for establishing causation.) In
reaching that conclusion, we relied on our decision in United States v. Luce,
873 F.3d 999, 1014 (7th Cir. 2017), which in turn had followed United States
v. Miller, 645 F.2d 473 (5th Cir. 1981), and United States v. Hibbs, 568 F.2d
347 (3d Cir. 1977). We stressed throughout Luce that we were dealing with
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 29
defendants’ view, the Government was required to prove that
it was reasonably foreseeable that the defendants’ misrepre-
sentations would increase the “riskiness,” or the likelihood of
default, of the loans. Without evidence that the defendants vi-
olated a rule related to borrower creditworthiness, the de-
fendants continue, the Government cannot show that it was
reasonably foreseeable to any defendant that a particular mis-
representation on an application caused the SBA to take on
excess risk.
The district court did not err in determining the loss
amounts caused by the defendants’ fraud. The defendants
present an artificially narrow theory of causation. The SBA
provides loan guarantees to borrowers who cannot obtain tra-
ditional financing because banks consider them “risky”; in
light of this risk, the SBA demands that these borrowers meet
certain requirements in order to be eligible to obtain a guar-
antee. At sentencing, the district court, accepting the Govern-
ment’s position, found that all of the loans included in the loss
amount, with the exception of the Indiana Baseball Academy
loan, would have been ineligible for any SBA guarantees
46
without the defendants’ fraudulent misrepresentations. For
example, an SBA official testified that a $50,000 equity injec-
tion was a threshold requirement to receive the $1.4 million
SBA-guaranteed loan used to purchase the Rodgers Finishing
Tools business; the defendants hid from the SBA that the bor-
rower did not have $50,000 to contribute. The defendants also
hid that Larson Cement and Touchton had past-due payroll
the language of the False Claims Act. Calderon is therefore hardly on point
because it deals specifically with the language of the False Claims Act.
46 See Isley’s Sentencing Tr. at 14–17.
30 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
taxes, which, without a payment plan with the IRS, disquali-
fied them from receiving any SBA guarantee. The court there-
fore concluded that the defendants’ fraud caused the loss that
the SBA suffered when it purchased the outstanding balance
on each of the loans that was in fact ineligible for any SBA
47
guarantee. As the court explained, the Government’s theory
at trial and the “evidence presented to the jury was that Banc-
Serv, through fraudulent and fictitious means, secured SBA
loans for certain borrowers who were ineligible for any SBA-
guaranteed loan and that the SBA would not have paid out
48
the guarantees at all but for the defendant[s’] fraud.” It also
was reasonably foreseeable to the defendants that, as a result
47 The district court’s explanation of the loss amount echoes that of the
Probation Office. In response to the defendants’ objection to the loss
amount in the PSRs, the Probation Office stated that the “funds obtained
by the borrowers” were secured “through the fraudulent packaging and
servicing of the loans by these defendants.” R.302 at 33; R.312 at 34; R.314
at 36; R.316 at 34; R.320 at 42. Furthermore, “the defendants packaged and
serviced loan applications with the knowledge” that the borrowers “could
not obtain an SBA loan by legal standards” and, therefore, they secured
these loans although they “knew the risks of their fraudulent activities and
were aware of the likelihood these borrowers could default.” R.302 at 33;
R.312 at 34; R.314 at 36; R.316 at 34; R.320 at 42. The Probation Office stated
that “these borrowers never would have been granted an SBA loan” had
the defendants “not fraudulently and illegitimately altered applications.”
R.302 at 33; R.312 at 34; R.314 at 36; R.316 at 34; R.320 at 42. At the defend-
ants’ sentencing hearings, the district court adopted the Probation Office’s
calculation of the loss amount and concluded that the Government had
proven the loss amount by a preponderance of the evidence.
48 Isley’s Sentencing Tr. at 14; see also Agee’s Sentencing Tr. at 8;
M. Smith’s Sentencing Tr. at 15; Griffin’s Sentencing Tr. at 14.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 31
of their fraudulent conduct, the SBA would pay out on these
ineligible loans. As the district court noted, the defendants
“knew the risks of their fraudulent activities and were aware
of the likelihood that these SBA-ineligible borrowers might
default, yet they lied and, through fraudulent actions, secured
49
these fraudulent loans regardless.”
The district court recognized that the posture of the Indi-
ana Baseball Academy loan was different than the other loans
included in the loss amount calculation because, although In-
diana Baseball Academy diverted loan proceeds to an im-
proper use, that diversion did not affect the basic eligibility of
Indiana Baseball Academy to receive an SBA-guaranteed
50
loan. With respect to that loan, the defendants disguised that
the borrower would divert approximately $108,000 of the
$350,000 loan to pay off student loans by labeling the funds as
“working capital” at the application stage. They then renewed
this lie to the SBA, insisting that the funds had not been used
to pay student loans, so that the SBA would purchase the en-
tire outstanding balance of the loan. The district court ac-
cepted the Government’s position that it was reasonably fore-
seeable that the diversion of almost one-third of the loan pro-
ceeds from the funding of the day-to-day operations of the
business to the payment of unrelated student loans would
49 M. Smith’s Sentencing Tr. at 15; see also Isley’s Sentencing Tr. at 15; Grif-
fin’s Sentencing Tr. at 14.
50 The Indiana Baseball Academy loan was included in the loss amounts
for Ms. Agee, Ms. Isley, and Ms. Smith.
32 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
51
lead to the business defaulting on the loan. The defendants
therefore were responsible for the SBA’s total loss in connec-
tion with this loan. The district court did not clearly err in con-
cluding that the defendants’ fraudulent conduct caused the
loss that the SBA suffered by purchasing the outstanding bal-
52
ance on any of these loans.
The defendants further submit that the Government pre-
sented no evidence connecting Lithocraft loans #2 and #3 to
the defendants’ scheme to defraud the SBA. “A loss determi-
nation must be based on the conduct of conviction and rele-
vant conduct that is criminal or unlawful, and the
51 See Isley’s Sentencing Tr. at 10–11, 16.
52 Cf. United States v. Dehaan, 896 F.3d 798, 807–08 (7th Cir. 2018) (finding
no plain error where the district court calculated the loss amount resulting
from the defendant’s fraudulent certification of patients as homebound to
be the entire amount Medicare paid for those ineligible recipients because
“[a]bsent a proper certification, a patient is not eligible for [home health]
services … whether he is actually homebound or not” and so “one may
see the entire amount paid by Medicare for services to these patients as a
loss even if, in theory, some number of these patients were in fact home-
bound and could therefore have qualified for home services had they been
certified as homebound in good faith by an honest physician”); United
States v. Kosth, 257 F.3d 712, 722 (7th Cir. 2001) (concluding under U.S.S.G.
§ 2F1.1(b), which was consolidated with § 2B1.1 in 2001, that, for a defend-
ant who was convicted of making false statements in connection with
loans from the SBA, the district court did not clearly err in applying a loss
amount that reflected the amount the defendant “received or had commit-
ments to receive … from the SBA when all was said and done”); United
States v. Morris, 80 F.3d 1151, 1171–74 (7th Cir. 1996) (concluding, under
U.S.S.G. § 2F1.1(b), that, even if the defendants’ conduct did not cause a
bank’s ultimate demise, the defendants’ fraudulent conduct facilitated the
bank’s offering of subordinated capital notes and caused investors to put
at risk the full value of their investments).
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 33
government must demonstrate by a preponderance of the ev-
idence that the loss amount is attributable to that criminal or
unlawful conduct.” United States v. Orillo, 733 F.3d 241, 244
(7th Cir. 2013) (citing United States v. Littrice, 666 F.3d 1053,
1060 (7th Cir. 2012)). As the PSRs detailed and the district
court noted at sentencing, the Government presented evi-
dence that, when a Banc-Serv employee in the process of liq-
uidating all three Lithocraft loans discovered that the
Lithocraft “file [wa]s missing the [required] environmental
assessment,” Ms. Isley directed the employee to ask the bank
involved to complete a backdated environmental assessment
53
so that the SBA would not charge a repair fee. The district
court did not clearly err in including Lithocraft loans #2 and
#3 in the loss amount.
As an alternative basis on which to challenge the loss
54
amount, the defendants submit that the district court erred
53 R.424-24 at 1–2.
54 The defendants also submit that the district court erred in including
certain guarantee fees and interest amounts in the loss amount. They note
that, under U.S.S.G. § 2B1.1 cmt. n.3(D)(i), “[l]oss shall not include …
[i]nterest of any kind, finance charges, late fees, penalties, amounts based
on an agreed-upon return or rate of return, or other similar costs.” They
concede, however, that any changes in loss amount caused by these al-
leged errors alone would not result in any change in any defendant’s
Guidelines range. Therefore, because we conclude that there were no
other errors with respect to any defendant’s loss amount, we need not con-
sider whether the district court erred by including guarantee fees and in-
terest amounts in the loss amount. See, e.g., United States v. Klund, 59 F.4th
322, 329 (7th Cir. 2023) (concluding that we did not need to address
whether the district court erred in failing to offset the value of certain
goods in its calculation of the defendant’s intended loss amount because
the offset “would not affect his guidelines range”). We consider their
34 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
in its calculation of loss because it did not apply the govern-
ment benefits rule properly. The “government benefits rule”
in the Sentencing Guidelines provides:
In a case involving government benefits (e.g.,
grants, loans, entitlement program payments),
loss shall be considered to be not less than the
value of the benefits obtained by unintended re-
cipients or diverted to unintended uses, as the
case may be. For example, if the defendant was
the intended recipient of food stamps having a
value of $100 but fraudulently received food
stamps having a value of $150, loss is $50.
U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). The defendants contend that,
under the government benefits rule, the actual loss amounts
for the Touchton, Rodgers Finishing Tools, and Indiana Base-
ball Academy loans should be only the amount of the loan
proceeds that were used for an improper purpose. Their ar-
gument is based on their belief that the SBA would have re-
paired, rather than denied, these loans had the disclosures
been accurate because, according to the testimony of an SBA
official, “a denial is for loans that are not eligible or if the fraud
55
caused a complete harm on the loan.”
As we already have explained, however, the district court
found that all of the loans included in the loss amount fell into
one of the two categories of loans that the defendants admit
contentions regarding these calculation errors with respect to restitution,
infra.
55 Appellants’ Joint Br. 45 (citing Trial Tr. 1194–95).
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 35
the SBA would have denied. The court concluded that, with
the exception of Indiana Baseball Academy, the loans that the
SBA purchased were ineligible for any amount of SBA guar-
56
antee. And, with respect to Indiana Baseball Academy, the
defendants intentionally disguised the diversion of one-third
of the loan proceeds from business uses, which, the district
court accepted, caused the entire loan to default shortly there-
after. The district court did not clearly err in these conclu-
sions. We therefore reject the defendants’ government bene-
fits rule argument.
ii. Restitution
The defendants also contend that the district court erred
57
in calculating and ordering restitution. We review the calcu-
lation of restitution for abuse of discretion, viewing the evi-
dence in the light most favorable to the Government. United
56 As the district court noted, our decision in United States v. Leahy, 464
F.3d 773 (7th Cir. 2006), is instructive. There, the defendant had engaged
in a scheme to cheat the City of Chicago out of funds slotted for minority-
and women-owned businesses. We concluded, in relevant part, that an
earlier version of the government benefits rule—stating that “[i]n a case
involving diversion of government program benefits, loss is the value of
the benefits diverted from intended recipients or uses”— applied. See id.
at 790. We explained that, under that rule, the loss amount should have
been the total value of the benefits diverted from intended recipients or
uses, not the “contract price minus the benefit provided.” Id. As in Leahy,
the government funds in this case were diverted to improper recipients;
the loans that the SBA purchased were ineligible for any amount of SBA
guarantee.
57 The defendants submit that any change in the actual loss calculation
also must be applied to restitution. Because we reject the defendants’ ar-
guments for a change in the actual loss calculation, we also reject their
argument requesting a change in the restitution amount on this basis.
36 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
States v. Robl, 8 F.4th 515, 527 (7th Cir. 2021). We “will only
upset an order of restitution ‘if the district court used inap-
propriate factors or did not exercise discretion at all.’” United
States v. Stein, 756 F.3d 1027, 1029 (7th Cir. 2014) (quoting
United States v. Frith, 461 F.3d 914, 919 (7th Cir. 2006)). Where
a defendant failed to raise a specific argument regarding a res-
titution award in the district court, we employ plain-error re-
view. See Walker, 746 F.3d at 308 (citing United States v. Berko-
witz, 732 F.3d 850, 852 (7th Cir. 2013)).
The Mandatory Victim Restitution Act (“MVRA”) re-
quires the defendants to “make restitution to the victim of the
offense.” See 18 U.S.C. § 3663A(a)(1). “[T]he primary and
overarching purpose of the MVRA is to make victims of crime
whole, to fully compensate these victims for their losses and
to restore these victims to their original state of well-being.”
United States v. Robers, 698 F.3d 937, 943 (7th Cir. 2012)
(cleaned up) (quoting United States v. Boccagna, 450 F.3d 107,
115 (2d Cir. 2006)). The MVRA defines a “victim” as “a person
directly and proximately harmed as a result of the commis-
sion of an offense for which restitution may be ordered.”
18 U.S.C. § 3663A(a)(2). We have explained that the “MVRA
has a proximate cause requirement” and a district court’s fail-
ure to “address proximate causation during sentencing,” at
least where “there is no way of knowing if [the defendant]
caused the victims’ full loss,” affects the defendant’s “sub-
stantial rights.” United States v. Burns, 843 F.3d 679, 689 (7th
Cir. 2016).
The MVRA “applies to a victim’s losses from the offense
of conviction, which is narrower than relevant conduct under
the Guidelines” for loss amount. White, 883 F.3d at 992. In
other words, “[r]estitution is ‘limited to the actual losses
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 37
caused by the specific conduct underlying the offense.’”
United States v. Meza, 983 F.3d 908, 918 (7th Cir. 2020) (quoting
Orillo, 733 F.3d at 244). When the offense “involves as an ele-
ment a scheme, conspiracy, or pattern of criminal activity,” a
court should order restitution for “any person directly
harmed by the defendant’s criminal conduct in the course of
the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2).
Therefore, “[a]s long as the [sentencing] court can adequately
demarcate the scheme, it can order restitution for any victim
harmed by the defendant’s conduct during the course of that
scheme.” United States v. Smith, 218 F.3d 777, 784 (7th Cir.
2000). Because “the crime comprehended by the mail and
wire fraud statutes is the scheme to defraud, not just the iso-
lated iterations of wire transmissions or mailings, … restitu-
tion for victims of the overall scheme is required.” Meza, 983
F.3d at 918 (quoting United States v. Locke, 643 F.3d 235, 247
(7th Cir. 2011)).
The Government must establish the restitution amount by
a preponderance of the evidence. See Robl, 8 F.4th at 527. “A
court may rely on the information provided in the presen-
tence report ‘so long as it is well supported and appears reli-
able.’” Id. at 529 (quoting United States v. Scalzo, 764 F.3d 739,
745 (7th Cir. 2014)). “A defendant bears the burden of show-
ing that the [presentence report] is inaccurate or unreliable,
and a simple denial of its accuracy does not discharge this
burden.” Id. “If the defendant is able to create ‘real doubt as
to the information’s reliability,’ the burden shifts to the gov-
ernment to demonstrate the accuracy of the presentence re-
port’s restitution information.” Id.In this appeal, the defendants submit, for the first time,
that the district court should not have included the Larson
38 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
Cement loan in the calculation of the restitution amount be-
cause that loan did not affect a financial institution. In the Lar-
son transaction, the defendants disguised the payment of
past-due payroll taxes as “working capital.” The district court
did not plainly err in concluding that the defendants’ misrep-
resentations in connection with the Larson loan were part of
their overall scheme to obtain SBA guarantees for loans that
did not meet the SBA’s guidelines and requirements. Cf.
United States v. Peugh, 675 F.3d 736, 742 (7th Cir. 2012), rev’d
on other grounds, 569 U.S. 530 (2013), opinion reinstated in part,
527 F. App’x 554 (7th Cir. 2013) (“When a ‘scheme’ is an ele-
ment of the offense of conviction—as it is in bank fraud, see 18
U.S.C. § 1344—the Mandatory Victim Restitution Act requires
restitution for the losses caused by the entire scheme, even if
the defendant is not convicted of all of the conduct that caused
loss.”); United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006)
(“The ‘crime’ covered by § 1341 is the scheme to defraud, not
(just) the mailings that occur in the course of the scheme. This
indictment laid out, and the jury convicted Belk of, a multi-
year scheme to defraud …. Restitution for the whole scheme
is in order.”).
The defendants also submit that the district court abused
its discretion in finding proximate cause between the defend-
ants’ conduct and any loss to the SBA. Because we already
have concluded that the defendants’ fraudulent misrepresen-
tations caused the SBA’s loss in our discussion of the loss
amount under U.S.S.G. § 2B1.1(b), we now address only the
new contention that the defendants raise with respect to res-
titution. In this respect, the defendants submit that the SBA’s
failure to try to recoup from the lenders purportedly im-
proper guarantee payments is an independent intervening act
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 39
that breaks the chain of causation between the defendants’
conduct and the SBA.
The district court did not abuse its discretion in determin-
ing that there was proximate cause between the defendants’
conduct and the SBA’s loss without consideration of the abil-
ity of the SBA to recoup losses from lenders. The MVRA pro-
vides that “[i]n no case shall the fact that a victim has received
or is entitled to receive compensation with respect to a loss
from insurance or any other source be considered in deter-
mining the amount of restitution.” 18 U.S.C. § 3664(f)(1)(B).
We therefore have explained that, “when determining the res-
titution amount the court is confined to considering (1) the
property or value of property lost by the victim and (2) the
value of property returned from the defendant to the victim,
but not the victim’s receipt of property from third parties.”
United States v. Malone, 747 F.3d 481, 485 (7th Cir. 2014); see
also United States v. Johnson, 911 F.3d 849, 852 (7th Cir. 2018)
(explaining that § 3664(f)(1)(B) “is a statutory version of the
collateral-source doctrine, familiar in tort law”).
The defendants finally contend that the district court erred
by including guarantee fees and interest amounts in the resti-
tution amount. We need not consider this argument because
it is completely undeveloped, both in the district court record
and on appeal. See, e.g., United States v. Butler, 58 F.4th 364, 368
(7th Cir. 2023) (explaining that arguments that are undevel-
oped on appeal are waived). In any event, the district court
did not abuse its discretion in calculating restitution by rely-
ing on the outstanding balance amounts that the PSRs stated
the SBA purchased for each loan.
40 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
iii. Sophisticated Means Enhancement
Mr. Griffin and Mr. Smith submit that the district court
erred in applying the “sophisticated means” enhancement
under U.S.S.G. § 2B1.1(b)(10)(C) to their sentences. We review
de novo the application of the Guidelines, see Sheneman, 682
F.3d at 630, and we review for clear error the district court’s
finding that the offense involved sophisticated means, see
United States v. Sykes, 774 F.3d 1145, 1152 (7th Cir. 2014). “[A]
district court need only find by a preponderance of the evi-
dence facts sufficient to support the enhancement.” United
States v. Friedman, 971 F.3d 700, 717 (7th Cir. 2020) (quoting
United States v. Sewell, 780 F.3d 839, 848 (7th Cir. 2015)).
The “sophisticated means” enhancement applies if the of-
fense “involved sophisticated means and the defendant inten-
tionally engaged in or caused the conduct constituting sophis-
ticated means.” U.S.S.G. § 2B1.1(b)(10)(C). The Sentencing
Commission added the requirement that the defendant “in-
tentionally engaged in or caused the conduct constituting so-
phisticated means” in 2015 to clarify that application of this
enhancement should be based “on the defendant’s own inten-
tional conduct” rather than “on the basis of the sophistication
of the overall scheme without a determination of whether the
defendant’s own conduct was ‘sophisticated.’” U.S.S.G. Supp.
App. C, Amdt. 792 (Reason for Amendment). An application
note explains that “‘sophisticated means’ means especially
complex or especially intricate offense conduct pertaining to
the execution or concealment of an offense.” U.S.S.G. § 2B1.1
cmt. n.9(B). The enhancement “does not require a brilliant
scheme, just one that displays a greater level of planning or
concealment than the usual [fraud] case.” United States v.
Lundberg, 990 F.3d 1087, 1097 (7th Cir. 2021) (quoting United
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 41
States v. Fife, 471 F.3d 750, 754 (7th Cir. 2006)); see also United
States v. Bickart, 825 F.3d 832, 837–38 (7th Cir. 2016) (quoting
United States v. Kontny, 238 F.3d 815, 821 (7th Cir. 2001)
(“‘[S]ophistication’ refers ‘to the presence of efforts at conceal-
ment that go beyond (not necessarily far beyond, for it is only
a two-level enhancement …) the concealment inherent in [the]
fraud.’”). Application of the sophisticated means enhance-
ment is not limited to “only the mastermind of the scheme.”
United States v. Muresanu, 951 F.3d 833, 840 (7th Cir. 2020).
Mr. Griffin and Mr. Smith each contend that the district
court erred in its application of the sophisticated means en-
hancement to his sentence because it considered the sophisti-
cation of the conspiracy as a whole rather than considering
whether each defendant “intentionally engaged in or caused
the conduct constituting sophisticated means,” as required by
U.S.S.G. § 2B1.1(b)(10)(C). At each defendant’s sentencing
hearing, the district court stated that it looked at “the overall
scheme to evaluate sophistication” under Seventh Circuit
58
case law. At Mr. Griffin’s sentencing hearing, the court spe-
cifically cited United States v. Wayland, 549 F.3d 526 (7th Cir.
2008), which, Mr. Griffin notes, predates the 2015 amendment
to the sophisticated means enhancement.
After reviewing the relevant parts of the transcript, we are
confident that the district court neither misunderstood the
governing principle nor misapplied that principle. Taken in
context, the district court’s statement that it looked at “the
overall scheme to evaluate sophistication” clearly meant that
it would evaluate the individual defendant’s conduct as a
whole in the context of the overall scheme. Indeed, in
58 M. Smith’s Sentencing Tr. at 26; Griffin’s Sentencing Tr. at 35.
42 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
Wayland, we affirmed the application of the sophisticated
means enhancement to a defendant who singlehandedly had
perpetrated a healthcare fraud scheme because, “[e]ven if
[his] individual actions could be characterized as unsophisti-
cated, … his overall scheme, which lasted nine years and in-
volved a series of coordinated fraudulent transactions, was
complex and sophisticated.” 549 F.3d at 529. The 2015 amend-
ment to the sophisticated means enhancement did not affect
the principle that a district court can look to a defendant’s
conduct as a whole to evaluate sophistication. See, e.g., United
States v. Redman, 887 F.3d 789, 793 (7th Cir. 2018) (quoting
United States v. Ghaddar, 678 F.3d 600, 602 (7th Cir. 2012))
(“[N]ot all of [the defendant’s] actions needed to be elaborate
for the adjustment to apply; it is enough that, as the district
court found, his actions when viewed as a whole constituted
a sophisticated scheme.”). The appropriate inquiry therefore
was whether, in the context of the overall scheme, the indi-
vidual defendant’s conduct, evaluated as a whole, was so-
phisticated.
In imposing the sophisticated means enhancement, the
district court properly considered the conduct that Mr. Griffin
and Mr. Smith each intentionally engaged in or caused within
the context of the overall scheme. At Mr. Smith’s sentencing
hearing, for example, the district court noted that he, with
Ms. Agee, had “instructed” the owner of Rodgers Finishing
Tools to use $50,000 of the “loan proceeds designated as
working capital” to fund a personal check ostensibly offered
as the required equity injection so that it “appear[ed] as
though Rodgers Finishing Tools had made the $50,000 equity
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 43
59
injection when they had not, in fact, done so.” The court also
stated that, although “[m]aybe someone else had introduced
it to him,” “it was Mr. Smith who introduced [the bridge loan
structure] to his co-conspirators on the Touchton loan by
which … Mr. Smith’s company issue[d] a … loan that would
be temporarily used to pay off past due payroll taxes and
60
which, itself, would be paid off by the SBA loan.” At
Mr. Griffin’s sentencing hearing, the district court noted that
Mr. Griffin also was involved in the “use [of] a bridge loan
structure, which is sophisticated means, on the Touchton
61
loan.” The court also discussed his involvement in the Lar-
son Cement loan. The court noted that he had concealed “us-
ing working capital to repay delinquent IRS withholding
taxes” and “purposely left the box unchecked regarding using
the funds for repayment of delinquent taxes” on the SBA loan
62
application. It is clear that Mr. Griffin and Mr. Smith had in-
sinuated themselves into the overall conspiracy. The district
court did not clearly err in determining that Mr. Griffin and
Mr. Smith each intentionally engaged in conduct constituting
sophisticated means as part of the scheme to defraud the
63
SBA.
59 M. Smith’s Sentencing Tr. at 26.
60 Id. at 27.
61 Griffin’s Sentencing Tr. at 35.
62 Id.
63 Cf. Ghaddar, 678 F.3d at 603 (concluding that the use of “elaborate tactics
to conceal the source of … money” constitutes sophisticated means);
United States v. Reichel, 911 F.3d 910, 918 (8th Cir. 2018) (“[The defendant’s]
44 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075
iv. Clerical Error in Mr. Griffin’s Amended Judgment
Mr. Griffin and the Government agree that the district
court erred in imposing a condition of supervised release on
Mr. Griffin in the amended final judgment that is different
than the condition announced at his sentencing hearing. We
review de novo a claim of an inconsistency between an oral
and written judgment, and “where the oral pronouncement
of the court conflicts with the court’s later written order, the
oral pronouncement controls.” United States v. Sanchez, 814
F.3d 844, 847 (7th Cir. 2016). Furthermore, when “the written
judgment failed to capture accurately the unambiguous oral
pronouncement,” Federal Rule of Criminal Procedure 36 “al-
lows for correction of such a clerical error at any time.” United
States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir. 2015).
At Mr. Griffin’s sentencing hearing, the district court pro-
posed a supervised release condition requiring Mr. Griffin to
“participate in a mental health evaluation and any treatment
64
program deemed necessary.” Condition 14 of supervised re-
lease in the first written judgment properly provided that
Mr. Griffin was required to “participate in a mental health
65
evaluation and treatment if deemed necessary.” Condition
14 in the amended judgment, which was modified only with
respect to Mr. Griffin’s requested correctional facility,
multi-year use of bridge loans from one investor to cover the debts of an-
other constituted sophisticated means for the wire fraud counts.”).
64 Griffin’s Sentencing Tr. at 38.
65 R.333 at 4.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 45
required him to “participate in a mental health treatment pro-
66
gram.”
We agree that the omission of “if deemed necessary” from
the mental health condition in the amended judgment was er-
roneous. Condition 14 in Mr. Griffin’s amended judgment
should match Condition 14 as written in the first judgment.
We modify the judgment in Mr. Griffin’s case so that Condi-
tion 14 requires that he “participate in a mental health evalu-
ation and treatment if deemed necessary.”
Conclusion
For the foregoing reasons, we affirm the defendants’ con-
victions and sentences, except that we modify the amended
judgment in Mr. Griffin’s case so that Condition 14 of super-
vised release requires that he “participate in a mental health
evaluation and treatment if deemed necessary.”
AFFIRMED
66 R.346 at 4.