United States v. Peter Tarantino

USCA11 Case: 22-14074 Document: 115-1 Date Filed: 06/21/2024 Page: 1 of 54

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14074

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PETER TARANTINO,

TODD CHRISLEY,

a.k.a. Michael Todd Chrisley,

JULIE CHRISLEY,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Northern District of Georgia

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2 Opinion of the Court 22-14074

D.C. Docket No. 1:19-cr-00297-ELR-JSA-3

____________________

Before ROSENBAUM, NEWSOM, and TJOFLAT, Circuit Judges.

PER CURIAM:

This criminal appeal revolves around three defendants and

two schemes: tax evasion and bank fraud.

The tax-evasion scheme involved all three defendants. De-

fendant Michael Todd Chrisley1 (“Todd”) owed back taxes. Rather

than directing his income payments into a personal account, which

the Internal Revenue Service (“IRS”) could have found and used to

satisfy his back taxes, the Chrisleys hid Todd’s income payments in

an account that Defendant Julie Chrisley owned. And as soon as

the IRS started looking into accounts Julie owned, the Chrisleys

transferred that account to yet another family member. Mean-

while, the Chrisleys’ accountant, Defendant Peter Tarantino, made

false statements to federal agents to keep the IRS off the trail. This

conduct, and more described below, resulted in convictions for tax

evasion and conspiracy to defraud the IRS.

As for the bank-fraud scheme, the Chrisleys and Todd’s prior

business partner sent fabricated financial documents to banks when

they applied for loans, loan renewals, and lines of credit. These

1 Because this case involves several people whose last name is Chrisley, to

avoid confusion, we use these individuals’ first names when we speak of one

of them. We refer collectively to Todd and Julie as “the Chrisleys.”

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false financial statements grossly overrepresented the Chrisleys’ as-

sets to make the applications more attractive to banks.

After a joint trial, the jury convicted all three defendants on

all counts, and the district court sentenced them. The defendants

now raise several issues on appeal. First, the Chrisleys argue that

the district court erred in denying their motion to suppress certain

electronic evidence. Second, the Chrisleys assert their convictions

for bank fraud, tax evasion, and conspiracy to defraud the IRS were

based on insufficient evidence. Third, all three defendants seek a

new trial or evidentiary hearing based on the prosecution’s failure

to correct allegedly false testimony. Fourth, Julie asserts that the

district court erred in sentencing her by holding her accountable

for the loss amount of the entire bank-fraud scheme. Fifth, the

Chrisleys challenge the restitution and forfeiture money judgments

against them. And sixth, Tarantino argues that the district court

abused its discretion in declining to sever his case from the Chris-

leys’.

After careful consideration, and with the benefit of oral ar-

gument, we affirm the district court on all issues except for the loss

amount attributed to Julie. The district court did not identify the

evidence it relied on to hold Julie accountable for losses incurred

before 2007, and we cannot independently find it in the record. So

we vacate Julie’s sentence and remand solely for the district court

to make the factual findings and calculations necessary to deter-

mine loss, restitution, and forfeiture as to Julie and to resentence

her accordingly.

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I. BACKGROUND

A grand jury returned a superseding indictment charging the

Chrisleys with bank fraud, tax evasion, and various conspiracy

counts. Julie was also charged with wire fraud and obstruction of

justice. As for Tarantino, the indictment charged him with aiding

the filing of false tax returns, as well as conspiring to defraud the

IRS with the Chrisleys.

After nearly three weeks of trial and three days of delibera-

tions, the jury found the three defendants guilty on all counts. The

district court sentenced Todd to 144 months’ imprisonment, Julie

to 84 months’ imprisonment, and Tarantino to 36 months’ impris-

onment. The court also ordered the Chrisleys, jointly and sever-

ally, to pay $17,270,741.57 in restitution and the same amount in

forfeiture. The court ordered Tarantino to pay a $35,000 fine.

A. The Trial Evidence

We summarize the relevant trial evidence, in the light most

favorable to the government. United States v. Duenas, 891 F.3d

1330, 1333 (11th Cir. 2018).

i. Evidence Related to Tax-evasion Counts

Todd (but not Julie) owed over $500,000 in taxes for the 2009

tax year. That year, Todd had filed a married-filing-separately tax

return, which meant the IRS could (generally) collect against only

Todd and not against Julie as to that amount.

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While that tax debt was still due and owing, in 2013, the

Chrisleys were hired to make a reality television show called Chris-

ley Knows Best. The Chrisleys’ attorney testified that the show’s

production company required the Chrisleys to set up a loan-out

company to receive payments on the Chrisleys’ behalf. Successful

artists and entertainers use loan-out corporations for the financial

benefits their structure allows. Bozzio v. EMI Grp. Ltd., 811 F.3d

1144, 1147 (9th Cir. 2016). More specifically, a loan-out corpora-

tion “is a duly organized corporation, typically wholly owned by

an artist, the sole function of which is to ‘loan out’ the services of

the artist-owner to producers and other potential employers. The

form offers limited personal liability and beneficial tax treatment.”

Id. (quoting Aaron J. Moss & Kenneth Basin, Copyright Termination

and Loan-Out Corporations: Reconciling Practice and Policy, 3 Harv. J.

Sports & Ent. L. 55, 72 (2012)) (cleaned up).

The Chrisleys created a loan-out company called 7C’s Pro-

ductions (“7C’s”), in the form of a Subchapter S corporation. The

IRS describes Subchapter S corporations as “corporations that elect

to pass corporate income, losses, deductions, and credits through

to their shareholders for federal tax purposes. Shareholders of S

corporations report the flow-through of income and losses on their

personal tax returns and are assessed tax at their individual income

tax rates. This allows S corporations to avoid double taxation on

the corporate income.” S corporations, IRS,

https://www.irs.gov/businesses/small-businesses-self-em-

ployed/s-corporations [https://perma.cc/FKS3-95MW].

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The Chrisleys set up 7C’s in Julie’s name. Julie had sole sig-

nature authority over the 7C’s bank account. The production com-

pany paid the Chrisleys for their performances on the television

show by sending checks for each recipient to 7C’s, care of the indi-

vidual who rendered the services. Once the money was in the 7C’s

account, Todd and Julie controlled payment to the other family

members who appeared on the show.

To be clear, even though the 7C’s account was in Julie’s

name, the government presented testimony that Todd had access

to the account. Evidence also showed that Todd shared control

over the account. For example, Todd emailed someone associated

with production and said, “[W]e . . . need to make sure that the

payments for this second season are paid directly to 7C’s and not

to the individual so as to give us the control to deal with [my kids]

when they don’t want to work[.]” A mortgage broker who inter-

acted with the Chrisleys even testified that Todd told him that “his

wife owned” 7C’s but Todd “controlled the business.”

The prosecution argued that the defendants used the 7C’s

account to hide Todd’s income from the IRS because the account

was in Julie’s name, and Todd’s tax liabilities from 2009 were

against him alone as an individual filer. To show the 7C’s bank

account hid Todd’s income, the prosecution presented evidence of

personal expenses that were paid out of the account, including pay-

ments for Chick-fil-A, utility bills, shopping, and vacations. And

FBI Special Agent Steve Ryskoski testified that the bank statements

gave the appearance that Todd and Julie were using the 7C’s

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account as a personal account. IRS Officer Betty Carter also testi-

fied that, based on the 7C’s bank statements, she deduced that the

Chrisleys were living off the 7C’s account. She testified that she

saw a lot of personal expenses paid through the 7C’s account and

“very little activity through the personal accounts.”

During this same period, the Chrisleys did not file their

2013–2016 tax returns or pay taxes for those tax years, even though

the government sent the Chrisleys and Tarantino publications ex-

plaining the importance of paying tax liabilities. It wasn’t until Feb-

ruary 2018—only after the Chrisleys became aware they were un-

der criminal investigation by the IRS—that they filed and began

paying taxes for those years.

In the meantime, in September 2016, Tarantino spoke with

IRS revenue officer Agnes Jagiella to discuss Todd’s outstanding tax

liabilities. Officer Jagiella testified that Tarantino falsely told her

that Julie had no interest in 7C’s, but rather, the Chrisleys’ daughter

owned 100% of the company. And then, Officer Jagiella testified,

Tarantino refused to tell her which daughter. After this conversa-

tion between Officer Jagiella and Tarantino, Tarantino emailed

Todd and Julie a summary of the call and said that Officer Jagiella

“asked some questions about your current living arrangements,

etc. I avoided answering them.”

On another occasion, Tarantino told Officer Carter he did

not know where the Chrisleys banked, even though he had their

Bank of America log-in information.

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Officer Carter and Tarantino also discussed the Chrisleys on

March 1, 2017. During that conversation, Officer Carter requested

bank statements and canceled checks for all bank accounts on

which Todd had signature authority. Tarantino complied.

Then, five days later, on March 6, Tarantino told the Chris-

leys that the IRS sent a follow-up request seeking bank statements

and canceled checks for all accounts on which Todd or Julie had

signature authority. Todd responded by telling Julie, “Get this

taken care of asap.”

The next day, Julie transferred ownership of the 7C’s bank

account to Elizabeth Faye Chrisley (“Faye”), Todd’s mother. A

new 7C’s bank account was also opened in Faye’s name. Faye tes-

tified that she never ran 7C’s and did not even know a company

was associated with the 7C’s bank account. The same day Julie

transferred ownership of the bank account to Faye, Todd emailed

his talent agent—copying Julie—and said, “Please refrain from

sending any deposits to the account you have on file as that account

has been compromised, we will be sending you another NEW ac-

count number tomorrow or Thursday morning.” With these ar-

rangements taken care of, Tarantino then sent the account infor-

mation for the first 7C’s bank account to the IRS, but he did not

mention that the account changed owners or that the Chrisleys’

future payments would all be to a new account.

More than ten months passed before January 18, 2018, when

Tarantino emailed draft tax returns to the Chrisleys for 2013–2016.

In doing so, Tarantino explained that he would be forwarding the

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draft returns to a Bentley dealership and a bank the following day.

The next day, as promised, Tarantino sent the draft returns to

those third parties. But his email to those companies did not ex-

plain that the documents were drafts that hadn’t been filed. In-

stead, it simply said, “I have attached the last three years of personal

and business tax filings.” After that, on January 23, Tarantino sent

a reminder to the Chrisleys to sign off on the draft returns so he

could officially file them.

On February 2, 2018, FBI and IRS-Criminal Investigation

special agents interviewed Tarantino. Tarantino did not tell the

agents he had recently sent draft tax returns to third parties. And

it wasn’t until after this interview that the Chrisleys finally filed

their late returns for 2013–2016.

Separately, Tarantino also filed 7C’s corporate tax returns

for 2015 and 2016, falsely claiming that the company earned zero

dollars and made zero distributions during that period. In reality,

7C’s earned revenue in 2015 and 2016.

ii. Evidence Related to Bank-fraud Counts

From the mid-2000s through 2012, Todd owned a company

called Chrisley Asset Management (“CAM”). His CAM business

partner, Mark Braddock, testified at trial with immunity, explaining

how the bank-fraud scheme worked.

Braddock helped the Chrisleys obtain loans and lines of

credit for CAM from financial institutions by submitting applica-

tions with false information about the Chrisleys’ income and assets.

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For example, evidence showed that in 2007, when Todd tried to

obtain unsecured lines of credit from a bank, the bank requested

personal account statements for Todd as a guarantor. So Braddock

sent Todd a document titled, “Your Merrill Lynch Report,” show-

ing that Todd and Julie had $776,509.52 deposited at Merrill Lynch.

In fact, though, the Chrisleys never had more than $17,000 at Mer-

rill Lynch during the relevant period. Todd responded to Brad-

dock’s doctored document with, “you are a f[]ing genious!!!! just

make it show 4 mil+.” This interaction set the stage for the addi-

tional bank fraud that followed.

The government introduced emails and documents Brad-

dock sent to banks on the Chrisleys’ behalf. These communica-

tions contained misrepresentations like the one above: for instance,

that the Chrisleys had $3.6–$4 million in assets at Merrill Lynch.

But Merrill Lynch’s records show no member of the Chrisley fam-

ily had even close to $4 million in an account.

The government also presented an email chain where a

bank requested financial information. Braddock emailed Todd, “I

don’t have financials on any of these.” And Todd responded, “stop

telling me this shit, create them like you always have, if I don’t get

her these then they [won’t] renew the loans.”

During Braddock’s testimony, the prosecution asked Brad-

dock directly, “[D]id you commit fraud from 2007 onward just on

your own? In other words, was it just you committing fraud?”

Braddock answered, “No. Mr. and Mrs. Chrisley and myself were

all three involved.”

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The government also introduced other evidence against Ju-

lie with respect to the bank-fraud scheme. Braddock testified that

in 2012, Julie emailed a scanned image of a check and bank state-

ment to Braddock and Todd, and wrote, “Post date is the only

thing that needs to be changed.” Braddock made that edit and sub-

mitted it to the bank, with Julie’s awareness. Braddock also testi-

fied that Julie’s nickname was “ass[] [is] on fire” because she drove

all over town paying off late-due loan amounts. He said that he

and Julie “talked about the personal financial statements” and

about “scrapbooking,” which was their term for editing documents

with false information. Evidence also showed two fraudulently ob-

tained loans from 2007 and 2008 were issued to Julie’s own com-

pany, Select Real Estate Holdings.

Besides the conviction for conspiracy to commit bank fraud,

the jury convicted the Chrisleys of five counts of substantive bank

fraud involving Midtown Bank (Count 2), GulfSouth Private Bank

(Count 3), United Community Bank (Count 4), RBC Bank USA

(Count 5), and Wells Fargo (Count 6).

For Counts 2 and 4 (Midtown and United Community

Banks), the government produced witnesses from the victim

banks, who testified that “[i]t was very important” for Todd’s per-

sonal financial statement to include accurate information because

it affected “the strategy in how we dealt with [the applied-for] loan

and the other loans that the borrower had”; false financial infor-

mation would “influence decision making on whether or not to re-

new certain loans”; it was “pretty important” to receive accurate

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information on personal financial statements because “that’s how

[they] assess the risk on whether to approve a loan or not”; and one

of the banks required updated financial statements every twelve

months to decide whether to continue the credit facility and be-

cause it was required to evaluate the risk level of each loan.

Besides the testimony from the employees of two of the vic-

tim banks, the government offered evidence from a former vice

president of Buckhead Community Bank, who said “a bank does

rely on” personal finance statements “to see what your debt to in-

come ratio is. So it’s very important to make a loan decision.” The

former president and CEO of Embassy National Bank also testified

that he would have wanted to know if Todd didn’t actually have

the amount in marketable securities that he represented.

Unlike for the banks in Counts 2 and 4, no employee-wit-

nesses testified from GulfSouth, RBC Bank USA, or Wells Fargo.

To support the three substantive bank-fraud counts involving

those banks (Counts 3, 5, and 6), the government relied on evi-

dence that Braddock emailed a personal financial statement reflect-

ing inflated assets to GulfSouth and WellsFargo on behalf of Todd,

copying Todd. And Braddock emailed a false document to RBC

Bank on an accountant’s letterhead representing that the account-

ant had audited financial information for CAM when in fact the ac-

countant had not.

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B. Procedural History

Before trial, and relevant to this appeal, the Chrisleys timely

filed two motions to suppress evidence. The first, filed in Decem-

ber 2019, sought to suppress the evidence that federal agents seized

from the Georgia Department of Revenue (“Georgia DOR”). The

second relevant motion to suppress, which the Chrisleys filed a

couple months later in February 2020, sought to “suppress evi-

dence seized pursuant to the search warrants for emails and elec-

tronically stored information.” Unlike the first motion, this second

motion did not mention the Georgia DOR search.

The district court granted the first motion to suppress and

denied the second. So the evidence from the warehouse search was

suppressed, but the evidence from the electronically stored infor-

mation (“ESI”) searches was not.

More than two years later—and ten days after the deadline

for filing motions in limine had passed—the Chrisleys filed a “Mo-

tion to Require the United States to Establish Admissibility of Sup-

pressed Evidence” as to the evidence the government collected

through the ESI warrants and all evidence the FBI and IRS col-

lected. The district court denied that motion as untimely, stating

that it had already decided the issue of whether the evidence col-

lected through the ESI warrants was admissible when it denied the

motion to suppress electronic evidence.

The parties proceeded to trial. The Chrisleys contend that

they had paid off all taxes by the time of trial. While the prosecu-

tion filed a declaration from Officer Carter stating that the

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Chrisleys continued to make tax payments even after trial ended,

the parties do not now dispute that, at the time of trial, the Chris-

leys owed nothing for tax years 2014 and 2015. 2 Even so, Officer

Carter testified at trial that the Chrisleys still owed money for 2010,

2011, 2014, 2015, and 2016.

Almost two weeks after Officer Carter’s testimony, but still

during trial, the Chrisleys produced documents to the government

reflecting payments the Chrisleys had made to the IRS. In re-

sponse, that same day, IRS Agent Brock Kinsler emailed Officer

Carter asking about one of the payments described in the Chrisleys’

document production. The two of them discovered that a pay-

ment the Chrisleys made in January 2022 towards 2016 taxes had

not been applied to the couple’s outstanding balance. Apparently,

Agent Kinsler recalled telling the prosecutors about this email ex-

change on the morning of June 1, 2022. Conversations between

the Chrisleys’ accountant and Officer Carter from three weeks after

trial show further payments that the Chrisleys made to the IRS but

that the IRS database had not yet applied to the Chrisleys’ balance

at the time Officer Carter testified that they still had outstanding

liabilities. In the end, then, it turned out that at the time of Officer

Carter’s testimony, the Chrisleys did not owe any taxes for at least

2014 or 2015. In other words, Officer Carter’s testimony that the

2 Defendants argue that, at the time of trial, the Chrisleys did not owe taxes

for any tax year before 2017. But the district court pointed out that the Chris-

leys were still making payments for tax years 2010, 2011, and 2016 several

months after trial ended. No matter. We will assume the Chrisleys’ versions

of the facts because it does not alter the analysis or its result.

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Chrisleys still owed money for at least those two tax years was in-

correct.

At the end of the trial, the jury found all three defendants

guilty on all counts in which they were charged. The Chrisleys had

a joint sentencing hearing, where the district court accepted the

government’s loss calculations. Those loss calculations supported

the Chrisleys’ base offense levels, restitution amounts, and forfei-

ture amounts. The district court allowed defense counsel two

weeks after the final restitution and forfeiture orders were dock-

eted to file any motions to amend those orders. Defense counsel

did not file any motion to amend either order.

Each defendant filed a motion for a new trial. The Chrisleys

argued that certain evidence should have been excluded and that

the government unlawfully failed to correct Officer Carter’s testi-

mony that the Chrisleys still owed back taxes as of the time of trial.

Tarantino moved for a new trial on the ground that he allegedly

suffered compelling prejudice because of the district court’s deci-

sion not to sever his case. Tarantino had previously filed a pre-trial

motion to sever, which was denied.

The district court denied each motion in a short order before

the sentencing hearing and then issued its full opinion about six

weeks after defendants timely filed this appeal.

II. DISCUSSION

We divide our discussion into six parts. First, we address

whether the district court erred by denying the Chrisleys’ motion

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16 Opinion of the Court 22-14074

to suppress electronic evidence. Second, we consider whether suf-

ficient evidence supported the Chrisleys’ convictions on multiple

counts. Third, we assess whether the district court abused its dis-

cretion in declining to grant a new trial or hold a hearing on the

prosecution’s failure to correct Officer Carter’s testimony. Fourth,

we discuss whether the district court erred in holding Julie account-

able for the loss amount of the entire bank-fraud conspiracy. Fifth,

we address whether the district court committed procedural error

when ordering restitution and forfeiture as to the Chrisleys. And

sixth, we consider whether the district court abused its discretion

in declining to sever Tarantino’s case.

A. The district court did not abuse its discretion in hold-

ing that the motion to suppress electronic evidence was

untimely.

The Chrisleys argue that the district court abused its discre-

tion when it denied their “Motion to Require the United States to

Establish Admissibility of Suppressed Evidence.” We disagree.

As an initial matter, even though the Chrisleys styled their

filing as a “Motion to Require the United States to Establish Admis-

sibility of Suppressed Evidence,” it was, in reality, a motion to sup-

press. That’s so because it argued that the government’s acquisi-

tion of the challenged evidence violated the Chrisleys’ Fourth

Amendment rights, and it sought to prevent the government from

using that evidence, even though that evidence had not been sup-

pressed. For these reasons, the law governing motions to suppress

controls our review.

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When a district court denies a motion to suppress evidence

because it is untimely, we review for abuse of discretion. United

States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990).

A defendant who wishes to move to suppress evidence must

do so before trial. Fed. R. Crim. P. 12(b)(3)(C). A district court has

authority to set a deadline for motions to suppress under Federal

Rule of Criminal Procedure 12(c). A motion to suppress is consid-

ered untimely if the defendant files it after the deadline, but courts

may consider the motion “if the party shows good cause.” Fed. R.

Crim. P. 12(c)(3).

In this case, the district court gave the Chrisleys until De-

cember 20, 2019, to file motions to suppress. Given the timing of

the government’s ESI search warrants, the court separately al-

lowed the Chrisleys until February 28, 2020, to file any motions to

suppress evidence from those searches. As we’ve noted, the Chris-

leys timely filed two motions to suppress that are relevant to this

appeal.

The first motion related to a search of Todd’s warehouses.

Back in March 2017, the Georgia DOR improperly seized hard-

copy documents from one of Todd’s warehouses without a war-

rant. Federal agents later obtained a federal search warrant allow-

ing them to seize those documents from the Georgia DOR. This

first motion to suppress sought to exclude evidence that federal

agents seized from the Georgia DOR that the Georgia DOR, in

turn, had originally obtained through the warrantless warehouse

search.

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The second motion sought to exclude evidence collected un-

der ESI search warrants. The motion argued that the ESI search

warrants were overbroad.

Neither motion asserted that evidence the government ob-

tained through the ESI warrants was derived from the warehouse

search. And more specifically, at no point did the motion to sup-

press ESI evidence suggest that the federal government wouldn’t

have investigated the Chrisleys’ emails but for the suppressed

Georgia DOR documents or that the government based its ESI

warrant applications on tainted information that the agents had

only because of the documents that the Georgia DOR illegally ob-

tained (the “fruit-of-the-poisonous-tree argument”). Instead, over

two years later and ten days after the deadline for motions in

limine, the Chrisleys filed a new motion seeking to exclude ESI ev-

idence as fruit of the poisonous tree.

The district court did not abuse its discretion in denying this

motion as untimely. The Chrisleys’ motion violated the district

court’s deadlines for both suppression motions and motions in

limine.

We are not persuaded by the Chrisleys’ argument that the

order granting the motion to suppress evidence collected from the

warehouse warrants and any evidence derived from the warehouse war-

rants covered the evidence the government collected through the

ESI warrants so that they didn’t need to file a motion to suppress

the ESI evidence. Motions to suppress “must in every critical re-

spect be sufficiently definite, specific, detailed, and nonconjectural

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22-14074 Opinion of the Court 19

to enable the court to conclude that a substantial claim is pre-

sented.” United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.

1985). And here, the motion to suppress evidence from the ware-

house warrant, which was titled, “[Defendants’] Motion to Sup-

press Evidence Seized Pursuant to Search Warrants Executed at

4125 Welcome All Road and 1800 Century Boulevard NE,” never

mentioned the ESI warrants or electronic evidence at all.

What’s more, the Chrisleys filed an entirely separate motion

to suppress the evidence from the ESI warrants, implicitly drawing

a distinction between the two types of evidence. So the district

court did not abuse its discretion in construing its own order grant-

ing the motion to suppress evidence from the warehouse warrants

as not covering evidence collected through the ESI warrants.

B. Sufficient evidence supports the Chrisleys’ convictions.

The Chrisleys raise several challenges to the sufficiency of

the evidence supporting their convictions. This section takes each

in turn. First, we consider whether sufficient evidence supported

the Chrisleys’ tax-evasion convictions. Second, we address

whether sufficient evidence supported the Chrisleys’ convictions

for conspiracy to defraud the IRS. Third, we discuss whether suffi-

cient evidence underlies the three substantive bank-fraud convic-

tions where no employee from the victim banks testified. And

fourth, we assess whether sufficient evidence supports Julie’s con-

victions on the substantive bank-fraud counts.

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We review de novo the sufficiency of the evidence, “taking

the evidence in the light most favorable to the government and

drawing all reasonable inferences in favor of the jury’s verdict.”

Duenas, 891 F.3d at 1333. We won’t set aside a jury verdict “if there

is ‘any reasonable construction of the evidence [that] would have

allowed the jury to find the defendant guilty beyond a reasonable

doubt.’” United States v. Martin, 803 F.3d 581, 587 (11th Cir. 2015)

(quoting United States v. Friske, 640 F.3d 1288, 1291) (11th Cir.

2011)).

i. Tax Evasion

The elements of federal tax evasion under 26 U.S.C. § 7201

include “(1) willfulness; (2) existence of a tax deficiency; and (3) an

affirmative act constituting an evasion or attempted evasion of

tax.” United States v. Kaiser, 893 F.2d 1300, 1305 (11th Cir. 1990).

“An affirmative act of attempted evasion may consist of ‘any con-

duct, the likely effect of which would be to mislead’ the Govern-

ment or conceal funds to avoid payment of a valid tax defi-

ciency.” United States v. Hesser, 800 F.3d 1310, 1323 (11th Cir. 2015)

(citation omitted).

The Chrisleys argue that the government failed to prove an

affirmative act amounting to tax evasion. As the Chrisleys see

things, the prosecution’s entire theory was that the Chrisleys used

7C’s bank accounts to conceal Todd’s income, but the money in

7C’s bank accounts was not Todd’s income; rather, they assert, it

was 7C’s income. The Chrisleys analogize to a law firm that col-

lects money from a client for work one of its lawyers performed:

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22-14074 Opinion of the Court 21

the money the law firm collects does not belong to the lawyer, and

the lawyer owes no taxes on it unless and until the firm distributes

the money from the firm’s account to the lawyer as income.

In furtherance of this argument, the Chrisleys rely on Hesser

v. United States, 40 F.4th 1221 (11th Cir. 2022). There, the defendant

was accused of converting his assets to gold bars and hiding them

around his house so the IRS would not find them. Id. at 1226. We

held that the government did not prove an affirmative act for a tax-

evasion charge because it “did not provide enough evidence for a

reasonable jury to conclude that the gold was Hesser’s beyond a

reasonable doubt.” Id. at 1227. We explained that it was possible

that the gold bars could have belonged to a trust that the defendant

often invested for. Id. at 1227 n.4. So even if the defendant wanted

to hide the gold bars from the IRS, he was not guilty of tax evasion

because the government did not prove the gold bars were his. Id.

at 1227.

The facts here are unlike those of the law-firm example,

where the lawyer does not control the money in the law firm’s ac-

count and cannot spend any of the money while it is in the law

firm’s account. The facts also differ materially from those in Hesser,

where the government did not prove that the gold bars were

Hesser’s. Here, the government proved that Todd controlled the

7C’s account and that he spent money from that account as if it was

his own personal account. Todd cannot avoid tax liability by skip-

ping the step of transferring his income from the 7C’s account to

his own account while treating the 7C’s account as if it is his own

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22 Opinion of the Court 22-14074

account. See United States v. Vernon, 814 F.3d 1091, 1096–97, 1103

(10th Cir. 2016) (in a case where a Subchapter S corporation held

payments for the defendant’s services, upholding a tax-evasion con-

viction because “the government’s evidence established that [the

defendant] exercised complete and total control over [the Subchap-

ter S corporation] and its bank account, rendering [the Subchapter

S corporation] simply a conduit through which she derived per-

sonal income”).

Indeed, sufficient evidence allowed the jurors to reasonably

conclude that the Chrisleys were using the money in the 7C’s ac-

count as their own income, believing it would evade IRS attention.

For example, Officer Carter testified that bank statements sug-

gested that the Chrisleys were “living off of” the 7C’s account. She

also testified, “I saw a lot of personal expenses paid through the

[7C’s] account. I found it unusual that there was very little activity

through the personal accounts.” Special Agent Ryskoski testified

that, even though Todd did not have signatory power on the 7C’s

account, Todd still had access to the bank account. Emails showed

that Todd controlled if and when the 7C’s account paid money to

other family members for their services on the show. And Special

Agent Ryskoski testified that the 7C’s account was used to pay for

personal activities that income would normally pay for, like going

to Chick-fil-A, paying utility bills, shopping, and vacations. He tes-

tified that “it appeared Todd and Julie Chrisley were using [the

7C’s] account as a personal account.”

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22-14074 Opinion of the Court 23

So creating an account in Julie’s name, directing Todd’s in-

come payments to that account, and then using the account for

personal expenses qualifies as conduct likely to “conceal funds to

avoid payment of a valid tax deficiency.” Hesser, 800 F.3d at 1323.

There’s also more. In late 2016, the 7C’s account came up in a con-

versation between Tarantino and an IRS agent. Tarantino told the

IRS that Julie had no interest in the 7C’s business and one of their

daughters owned 100% of it. A jury reasonably could have under-

stood this testimony to mean that Tarantino was attempting to

keep 7C’s accounts off the IRS’s radar so that it wouldn’t find

Todd’s assets.

Then, on March 6, 2017, the IRS expanded its search beyond

accounts in Todd’s name and requested bank records for any ac-

counts either Todd or Julie controlled. The very next day, Julie

transferred ownership of the 7C’s account to Faye and also opened

a new 7C’s account in Faye’s name. And Todd told his talent agent

that same day to stop all payments to the original 7C’s account

(that the IRS would now be aware of) because it had been “com-

promised.” A reasonable jury could have concluded from this evi-

dence that the Chrisleys arranged for the change in ownership of

the 7C’s account, for a new 7C’s account, and for payments to be

made to the new account in Faye’s name because they knew the

IRS was looking for Todd’s assets in his and Julie’s accounts. In

other words, a reasonable jury could have found that the Chrisleys

engaged in these machinations to conceal Todd’s assets from the

IRS.

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24 Opinion of the Court 22-14074

In sum, sufficient evidence supported the jury’s verdict as to

tax evasion.

ii. Conspiracy to Defraud the IRS

To convict someone of conspiring to defraud the IRS in vio-

lation of 18 U.S.C. § 371, the government must prove that (1) the

defendant and at least one other person agreed to impede the func-

tions of the IRS; (2) the defendant knowingly and voluntarily par-

ticipated in that agreement; and (3) one of the conspirators com-

mitted an act in furtherance of the agreement. United States v.

Hough, 803 F.3d 1181, 1187 (11th Cir. 2015). The government can

prove conspiracy to defraud the IRS with circumstantial evidence

such as “the parties’ concerted actions, overt acts, relationship, and

the entirety of their conduct.” United States v. Kottwitz, 614 F.3d

1241, 1265 (11th Cir. 2010) (per curiam), vacated in part on other

grounds on denial of reh’g en banc, 627 F.3d 1383 (11th Cir. 2010). The

circumstantial evidence must support a finding that the defendants

had a “‘common design with unity of purpose to impede the IRS’

based on ‘reasonable inferences.’” Id. (emphasis and citations

omitted).

The Chrisleys argue that insufficient evidence underlies

their convictions for conspiracy to defraud the IRS because the

money in the 7C’s account was not Todd’s income, so he could not

have concealed his income using the 7C’s account. We have al-

ready explained why they are wrong about that. But the Chrisleys

further contend that even if 7C’s could be used to conceal Todd’s

income, no evidence supports the conclusion that the Chrisleys

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22-14074 Opinion of the Court 25

intentionally used the 7C’s account as a way to evade taxes, given

that the production studio required the Chrisleys to set up the loan-

out company.

We disagree. Plenty of evidence supports the jury’s conclu-

sion that the Chrisleys conspired to impede the IRS. Why the

Chrisleys created a loan-out company in the first place is irrelevant

because, as we’ve already explained, a reasonable jury could have

concluded that they decided to misuse that company as a way to

conceal Todd’s assets.

The government also presented circumstantial evidence

that Julie intended to participate in the conspiracy. Julie was the

one with signature authority on the 7C’s account. And she could

see that the account was used for personal spending. Plus, when

the IRS thought to ask for bank records from accounts on which

Julie had signature authority, Julie was the one who went to Bank

of America to transfer the account to Faye. A jury could reasonably

infer she did so to hide payments from the IRS.

The government also presented evidence that Tarantino

lied to IRS agents. For example, in September 2016, Tarantino

emailed both Todd and Julie, “The agent also asked some questions

about your current living arrangements, etc. I avoided answering

them.” An officer also testified that Tarantino lied to her, advising

her that Julie had no interest in 7C’s and it was owned by the Chris-

leys’ daughter. Another officer testified that Tarantino said he did

not know where the Chrisleys banked, even though he in fact had

their Bank of America log-in information. A reasonable juror could

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26 Opinion of the Court 22-14074

have inferred from this evidence that Tarantino intentionally mis-

led federal officers away from looking into 7C’s as a way to impede

the IRS’s collection of Todd’s tax liabilities. Though Tarantino

does not challenge the sufficiency of the evidence as to his convic-

tion, this evidence equally supports the verdicts as to Todd and Ju-

lie as part of the same conspiracy.

In sum, sufficient evidence supports the Chrisleys’ convic-

tions for conspiracy to defraud the IRS.

iii. Substantive Bank Fraud—Material Misrepresentation

To prove bank fraud under 18 U.S.C. § 1344(2), the govern-

ment must prove (1) a scheme existed to obtain money, funds, or

credit in the custody of a federally insured financial institution; (2)

the defendant participated in the scheme by means of materially

false pretenses, representations, or promises; and (3) the defendant

acted knowingly. United States v. Dennis, 237 F.3d 1295, 1303 (11th

Cir. 2001). The Chrisleys’ appeal concerns the second element—

materiality.

“[I]n general, a false statement is material if it has ‘a natural

tendency to influence, or [is] capable of influencing, the decision of

the decisionmaking body to which it was addressed.’” United States

v. Neder, 197 F.3d 1122, 1128 (11th Cir. 1999) (quoting United States

v. Neder, 527 U.S. 1, 16 (1999)). “Because the issue is whether a

statement has a tendency to influence or is capable of influencing a

decision, and not whether the statement exerted actual influence,

a false statement can be material even if the decision maker did not

actually rely on the statement.” Id.

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22-14074 Opinion of the Court 27

Of course, the focus in fraud statutes, “like any criminal stat-

ute, is on the violator,” and so “the purpose of the element of ma-

teriality is to ensure that a defendant actually intended to create a

scheme to defraud.” United States v. Svete, 556 F.3d 1157, 1165 (11th

Cir. 2009) (en banc). A representation, misrepresentation, or omis-

sion is material if it has “a natural tendency to influence, or is capa-

ble of influencing, the decision maker to whom it is addressed.”

Martin, 803 F.3d at 588 (cleaned up).

The parties dispute whether the government’s evidence

showed that the victim banks in Counts 3, 5, and 6 would have

been influenced by defendants’ misrepresentations. The Chrisleys

argue that not every false statement constitutes fraud—only those

that are actually capable of influencing the victim. So whether a

misrepresentation is material is a context-specific inquiry. And, the

Chrisleys continue, resolving that inquiry requires the government

to produce an employee from each victim bank to testify about

whether the bank would have been influenced by the misrepresen-

tation.

We disagree. First, the Chrisleys point to no case holding

that testimony from a victim bank is necessary to establish a mate-

rial representation. Instead, they rely on United States v. Perez-Ce-

ballos, 907 F.3d 863 (5th Cir. 2018), which is both not binding on us

and, in any case, involved materially different facts than those at

issue here. There, the court reversed a conviction for bank fraud

because the government failed to prove the defendant made any

false statements to Chase Bank, and no Chase Bank witness

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28 Opinion of the Court 22-14074

testified at trial. Id. at 868. The court highlighted that no evidence

proved Chase Bank believed any false misrepresentation. Id. It also

said “generalized observations about banking industry regulations”

offered by a financial advisor of another entity were insufficient to

support a bank-fraud claim because they were a “far cry from

demonstrating” any harm to Chase Bank. Id. at 869.

The Chrisleys’ case differs significantly. In Perez-Ceballos, the

government did not prove that the defendant even made any false

statements to the bank. Essentially, it failed to prove any connec-

tion between the defendant and Chase Bank. Here, in contrast,

there is no mystery as to whether the Chrisleys participated in mak-

ing false statements to the victim banks; they did.

The government presented evidence that the Chrisleys par-

ticipated in sending false information—specifically, that Todd had

$3.6 million in marketable securities (Counts 3 and 6) and a fraud-

ulent audit statement (Count 5)—to the banks named in these

counts to obtain loans. And evidence showed the defendants in-

tended to mislead the banks. One email showed Todd compli-

menting Braddock on his falsified bank statement and asking for

additional false edits to be made, and one email showed Todd in-

structing Braddock to “create” documents because otherwise the

bank wouldn’t renew their loan. Plus, Braddock testified that he

and Julie discussed the need to keep showing banks “the picture

being good so that we could keep getting loans, otherwise, the

world would kind of come crashing down.” In short, the evidence

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22-14074 Opinion of the Court 29

showed defendants “actually intended to create a scheme to de-

fraud.” Svete, 556 F.3d at 1165.

The government also produced witnesses from four banks,

including the victim banks from Counts 2 and 4, who all testified

that financial statements are important in deciding whether or not

to extend a loan or credit. This testimony went far beyond the

“generalized observations about banking industry regulations” that

Perez-Ceballos, 907 F.3d at 869, referenced because the witnesses

here testified as to how the misrepresentations made in this case

actually affected decision making.

As we have explained, “[w]e will not overturn a jury’s ver-

dict if there is ‘any reasonable construction of the evidence [that]

would have allowed the jury to find the defendant guilty beyond a

reasonable doubt.’” Martin, 803 F.3d at 587. Here, for the reasons

we’ve recounted, there is. We affirm the convictions as to Counts

3, 5, and 6.

iv. Substantive Bank Fraud—Julie Chrisley

Next, Julie argues that, even if the government proved a ma-

terial misrepresentation supporting Counts 3, 5, and 6, she cannot

be convicted of any of the substantive bank-fraud counts because

they predate her participation in the conspiracy. We disagree with

Julie’s premise that the bank-fraud counts predate her participation

in the conspiracy.

“Under well established Eleventh Circuit precedent con-

spirators are liable for all of the acts and foreseeable consequences of the

conspiracy.” United States v. Silvestri, 409 F.3d 1311, 1335 (11th Cir.

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30 Opinion of the Court 22-14074

2005) (citation omitted) (emphasis in original). In other words,

“[e]ach party to a continuing conspiracy may be vicariously liable

for substantive criminal offenses committed by a co-conspirator

during the course and in the furtherance of the conspiracy, not-

withstanding the party’s non-participation in the offenses or lack of

knowledge thereof.” United States v. Mothersill, 87 F.3d 1214, 1218

(11th Cir. 1996).

The government can prove a conspiracy through either “di-

rect or circumstantial proof, including reasonable inferences drawn

from the statements or conduct of the participants.” Duenas, 891

F.3d at 1334. “Evidence that the defendant profited from a fraud

may also provide circumstantial evidence of the intent to partici-

pate in that fraud.” United States v. Machado, 886 F.3d 1070, 1083

(11th Cir. 2018). Still, though “conviction may be supported by

reasonable inferences,” and “mere speculation” does not suffice.

Duenas, 891 F.3d at 1334.

Here, sufficient evidence allowed a reasonable jury to con-

clude that Julie participated in the conspiracy as early as 2007, so

she could be liable for the substantive bank-fraud counts that took

place during the course of the conspiracy in 2009 and 2010. Brad-

dock’s testimony supports this conclusion. First, in response to the

government’s question, “[D]id you commit fraud from 2007 on-

ward just on your own? In other words, was it just you committing

fraud?” Braddock responded, “No. Mr. and Mrs. Chrisley and my-

self were all three involved.” On appeal, this testimony is entitled

to all reasonable inferences in favor of the jury verdict, including

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22-14074 Opinion of the Court 31

the inference that Braddock meant Julie was involved at least as of

2007. Email evidence also showed that, in the timeframe around

2008, Julie worked with Braddock and Todd in managing outstand-

ing loans and making loan payments. And Braddock testified that

one of Julie’s roles was to run around town paying off past-due

loans, so it’s clear she was well aware of the loans and the overdue

payments the conspiracy had to manage to keep its loans intact.

A summary chart introduced by the government also

showed that Julie’s own company, Select Real Estate Holdings, re-

ceived two fraudulently obtained loans in 2007 and 2008. Plus, ev-

idence showed that Julie had access to funds from fraudulently ob-

tained loans in 2007, including $35,000 of a fraudulently obtained

loan that was transferred into a bank account controlled by the

Chrisleys, and $43,000 of a fraudulently obtained loan that was

transferred into their joint account.

Julie does not challenge her conviction for participation in

the conspiracy from 2012 and onward. But we consider that evi-

dence for what it tells us about Julie’s prior involvement in the con-

spiracy. Evidence supporting Julie’s conspiracy conviction in-

cluded the fact that, during a loan application process in 2012, she

emailed a scanned image of a check to Braddock and Todd and said,

“Post date is the only thing that needed to be changed.” Other ev-

idence from after 2012 showed that Julie fabricated financial docu-

ments, including to falsely state that the family had $4 million in

cash and marketable securities. These later activities from when

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32 Opinion of the Court 22-14074

Julie was an undisputed conspirator mirror the activities that hap-

pened as early as 2007.

Ultimately, sufficient evidence existed for a reasonable jury

to conclude Julie participated in the conspiracy as early as 2007,

meaning she’d be liable for foreseeable substantive counts in 2009

and 2010. Because the substantive bank-fraud counts were foresee-

able consequences of participating in the bank-fraud conspiracy at

that time, we affirm Julie’s convictions on Counts 2 through 6.

C. Officer Carter’s testimony did not amount to a Giglio

violation or require an evidentiary hearing.

All three defendants argue that they should be granted a new

trial or at least an evidentiary hearing into whether false testimony

from Officer Carter constituted a Giglio violation. They allege that

the government intentionally instructed Officer Carter to review

outdated IRS records so that she would present false and mislead-

ing testimony at trial, namely that the Chrisleys still owed back

taxes at the time of trial. And even if the government didn’t do

that, they claim that the prosecutors at least failed to correct false

testimony even though they knew it was false.

We review a district court’s denial of a motion for a new trial

for abuse of discretion. United States v. Stein, 846 F.3d 1135, 1151

(11th Cir. 2017). We also review a district court’s denial of a mo-

tion for an evidentiary hearing on an alleged Giglio violation for

abuse of discretion. Id.

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22-14074 Opinion of the Court 33

Prosecutors must not deliberately introduce false evidence

or choose not to correct it when it appears. Giglio v. United States,

405 U.S. 150, 153–55 (1972). In Giglio, evidence that came out after

trial revealed a key witness had been offered immunity in exchange

for testifying against the defendant, even though the witness de-

nied any such offer on the stand. Id. at 151–52. Because the prose-

cution’s case “depended almost entirely on” this witness, his credi-

bility was an important issue, and the jury was entitled to know of

any understanding as to future prosecution because that bore on

credibility. Id. at 154–55. So the Court granted a new trial. Id.

“To prevail on a Giglio claim, a petitioner must establish that

(1) the prosecutor knowingly used perjured testimony or failed to

correct what he subsequently learned was false testimony; and (2)

such use was material.” Smith v. Sec’y, Dep’t of Corrs., 572 F.3d 1327,

1334 (11th Cir. 2009) (quoting Ford v. Hall, 546 F.3d 1326, 1331–32

(11th Cir. 2008)). False testimony is material under Giglio “if there

is any reasonable likelihood that the false testimony could have af-

fected the judgment of the jury.” Id. at 1333 (quoting United States

v. Agurs, 427 U.S. 97, 103 (1976)). In other words, it’s material un-

less it’s harmless beyond a reasonable doubt. Id.

We evaluate the cumulative effect of the false testimony to

determine whether it was material. Guzman v. Sec’y, Dep’t of Corrs.,

663 F.3d 1336, 1351 (11th Cir. 2011). “Considering the undisclosed

evidence cumulatively means adding up the force of it all and

weighing it against the totality of the evidence that was introduced at the

trial.” Id. (quoting Smith, 572 F.3d at 1334).

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34 Opinion of the Court 22-14074

No violation of due process occurs when, even though the

prosecution fails to disclose false testimony, defense counsel is

aware of the falsity of the testimony but doesn’t object. Routly v.

Singletary, 33 F.3d 1279, 1286 (11th Cir. 1994) (per curiam) (denying

the defendant’s Giglio claim because the defense counsel knew the

challenged trial testimony was false based on testimony from dep-

ositions and failed to object). Similarly, in general, no violation oc-

curs unless the government suppressed the evidence disproving the

challenged testimony. Stein, 846 F.3d at 1147. After all, Giglio is a

species of Brady v. Maryland, 373 U.S. 83 (1963). Id. And a Brady

violation requires, among other things, that the government sup-

pressed evidence. Id. at 1145–46 (citing United States v. Vallejo, 297

F.3d 1154, 1164 (11th Cir. 2002)).

On the other hand, if “the government not only fails to cor-

rect materially false testimony but also affirmatively capitalizes on

it, the defendant’s due process rights are violated despite the gov-

ernment’s timely disclosure of evidence showing the falsity.” Id. at

1147. So in Stein, for instance, we credited the fact that the prose-

cutor did not emphasize or capitalize on the false statement when

it rejected the defendant’s Giglio argument. Id. at 1150, 1150 n.13.

But in DeMarco v. United States, we vacated a defendant’s conviction

where the prosecution “not only adopted [the star witness’s] per-

jured testimony, but capitalized on it.” 928 F.2d 1074, 1076 (11th

Cir. 1991).

Defendants argue that they didn’t actually owe any taxes for

the years before 2017, so Officer Carter’s contrary testimony at trial

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22-14074 Opinion of the Court 35

was false, material testimony. But even if we assume that Officer

Carter’s testimony was wrong on this point, we cannot conclude

that the testimony was material when we compare it against the

rest of the evidence. Put simply, even assuming any falsity on this

discrete issue, that falsity was harmless beyond a reasonable doubt.

As we’ve explained in Section II.B.i, ample evidence of tax

evasion pervades the record here. To briefly summarize, that evi-

dence includes the Chrisleys’ use of the 7C’s bank account as the

Chrisleys’ personal account to collect Todd’s income and avoid the

IRS’s detection, the Chrisleys’ changes to the ownership of the 7C’s

bank account the day after the IRS requested bank statements for

purposes of determining Todd’s assets, and years of not filing tax

returns (even while representing to third parties that filings were

up to date), among other evidence. Against the overwhelming ev-

idence, we cannot conclude that Officer Carter’s testimony about

lingering outstanding tax liabilities at the time of trial could have

changed the jury’s verdict.

After all, given the evidence showing that the Chrisleys had

outstanding tax liability at least as late as February 2018, whether

or not the Chrisleys had outstanding tax liability at the time of trial

does not bear on whether they evaded taxes through 2018. And

while such testimony surely was not helpful to the Chrisleys, when

we consider the incorrect testimony against the rest of the evi-

dence, it pales by comparison.

Plus, to the extent that Officer Carter’s testimony on this

point was incorrect, defense counsel knew that during trial but did

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36 Opinion of the Court 22-14074

not object. Indeed, defense counsel produced documents to the

prosecution during trial showing the Chrisleys had made signifi-

cant tax payments. Defense counsel even introduced evidence that

the Chrisleys had, in fact, paid off their taxes for 2010, 2011, and

2014. They extensively questioned Officer Carter on cross exami-

nation about her testimony, and they argued during closing that

Officer Carter’s testimony was false. So the record contains no in-

dication that the prosecution suppressed evidence that would have

tipped off defense counsel that Officer Carter’s testimony was in-

correct. To the contrary, it seems all parties knew or should have

known the testimony was incorrect. And while defense counsel

endeavored to disprove the incorrect testimony, they did not assert

a Giglio objection during trial.

Importantly, the government also did not attempt to capi-

talize on Officer Carter’s incorrect testimony. Indeed, it was de-

fense counsel who elicited the testimony. Officer Carter repeatedly

answered defense counsel’s questions about outstanding back taxes

by stating that she reviewed the IRS internal system the day before

testifying, and it showed that the Chrisleys still owed for a number

of years. Todd’s counsel then asked Officer Carter about whether

the Chrisleys owed anything for each year from 2010 through 2016.

The prosecution asked only two open-ended, clarifying

questions on redirect:

Q: Now, you also said something about you checked yester-

day morning. And I believe there was a back and forth about

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22-14074 Opinion of the Court 37

what you were checking and all of that. I want to give you

an opportunity to complete your thoughts on that.

A: Yes. I just went and checked on all outstanding balances.

And there are additional tax and penalties owed.

Q: To this day?

A: Yes.

Not only was the prosecution’s questioning minimal on this

issue, but the prosecution’s closing statement did not repeat Officer

Carter’s testimony. To the contrary, the prosecution stated during

its closing argument, “[Y]ou heard in opening and then you heard

again in closing that [the] Chrisleys paid their money.” Taking all

of these circumstances into consideration, we affirm the district

court’s denial of the motion for a new trial based on defendants’

Giglio claim.

We likewise affirm the denial of an evidentiary hearing into

prosecutorial misconduct related to this claim. Defendants argue

they need an evidentiary hearing to prove that the prosecutors in-

tentionally had Officer Carter review a database with false infor-

mation on it so that her testimony based on that database would

be technically true, but factually false. Because defendants’ theory

of prosecutorial misconduct hypothesizes that the government en-

gaged in misconduct off the record during preparation sessions, de-

fendants assert that the district court must conduct an evidentiary

hearing to learn what really happened. We disagree.

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38 Opinion of the Court 22-14074

It is “well established” in this Circuit that a district court may

generally decide a motion for a new trial upon affidavits without

an evidentiary hearing. United States v. Hamilton, 559 F.2d 1370,

1373 (5th Cir. 1977). 3 To be sure, “certain unique situations,” in-

cluding alleged prosecutorial misconduct, may call for evidentiary

hearings in some cases. Id. But defendants point to no case requir-

ing an evidentiary hearing every time a defendant claims prosecuto-

rial misconduct occurred.

Rather, defendants rely on United States v. Espinosa-Hernan-

dez, 918 F.2d 911 (11th Cir. 1990). There, the case agent in charge

of the operation that led to the defendant’s indictment was the only

witness to testify before the grand jury, was in charge of the under-

cover informants involved in the operation, effectively prevented

the defense from contacting an informant, and made undisputedly

false statements before the grand jury and in his affidavit in support

of the criminal complaint. Id. at 913. Then, after trial, the defense

discovered that the case agent had been indicted for making false

statements related to drug use on his job application, was under

investigation for helping an informant escape from prison, and was

under investigation for distributing the same drug involved in the

defendant’s conviction. Id. We said an evidentiary hearing was

necessary because the agent’s testimony against the defendant was

material, and the agent’s involvement in the procedural aspects of

3 See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) (adopt-

ing as binding precedent all published cases of the former Fifth Circuit decided

on or before September 30, 1981).

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22-14074 Opinion of the Court 39

the case “had a tremendous impact” on the defendant’s conviction.

Id. at 914.

But this case is nothing like Espinosa-Hernandez. For starters,

unlike in Espinosa-Hernandez, Officer Carter’s challenged testimony

here did not have the kind of impact on either the procedural or

substantive aspects of the arrest, grand jury proceedings, and trial,

as did the agent’s in Espinosa-Hernandez. Nor was the defendant’s

motion for discovery in Espinosa-Hernandez based on pure specula-

tion, like it is here. In Espinosa-Hernandez, the agent was apparently

indicted for making false statements concerning drug use. But

here, defendants claim only that during trial preparation, the pros-

ecutors and Officer Carter must have discussed the fact that the da-

tabase she reviewed “failed to reflect the payments the Defendants

had made after 2018 and incorrectly showed outstanding tax bal-

ances.” And they say the prosecutors told Officer Carter to rely on

that database anyway. But that is pure speculation.

And the fact that the prosecution did not ask about these tax

liabilities on direct examination or mention them at all in its closing

argument belies the suggestion that the prosecution had a grand

scheme to prejudice defendants by making the jury incorrectly be-

lieve they owed taxes for 2014, 2015, and 2016. So we conclude

that the district court did not abuse its discretion in denying an ev-

identiary hearing.

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40 Opinion of the Court 22-14074

D. The district court erred in holding Julie Chrisley re-

sponsible for losses incurred in 2006 without explain-

ing its basis for doing so.

Julie asks us to vacate her sentence and remand for resen-

tencing because the court attributed the entire loss amount of the

bank-fraud conspiracy to her without making a particularized find-

ing about when she joined the conspiracy. She also argues that the

government could not identify a specific date on which she joined

the conspiracy before 2012. While we agree with the government

that the district court properly held Julie liable for losses incurred

from 2007 on, the district court’s calculations included losses in-

curred in 2006. But neither the district court nor the government

directs us to any evidence that Julie was involved in the conspiracy

by 2006. So we vacate Julie’s sentence and remand for the district

court to make factual findings and calculations supporting the loss,

restitution, and forfeiture amounts.

We review for clear error the district court’s determination

of the loss amount for purposes of sentencing. United States v. Max-

well, 579 F.3d 1282, 1305 (11th Cir. 2009). We must remand when

the district court’s failure to identify its basis for calculating the loss

amount attributable to the defendant renders appellate review im-

possible. United States v. Gupta, 572 F.3d 878, 889 (11th Cir. 2009).

The government must prove the loss amount by a prepon-

derance of the evidence. United States v. Sepulveda, 115 F.3d 882,

890 (11th Cir. 1997). That said, the “court need only make a rea-

sonable estimate of the loss” because “[t]he sentencing judge is in

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22-14074 Opinion of the Court 41

a unique position to assess the evidence and estimate the loss based

upon that evidence.” U.S. Sent’g Guidelines Manual § 2B1.1 cmt.

n.3(C) (“[T]he court’s loss determination is entitled to appropriate

deference.”).

The United States Sentencing Guidelines Manual section

1B1.3(a)(1) provides that the court determines the base offense

level by accounting for “all acts and omissions committed, aided,

[and] abetted . . . by the defendant; and . . . in the case of a jointly

undertaken criminal activity . . . all acts and omissions of others

that were—(i) within the scope of the jointly undertaken criminal

activity, (ii) in furtherance of that criminal activity, and (iii) reason-

ably foreseeable in connection with that criminal activity; that oc-

curred during the commission of the offense of conviction[.]” Sec-

tion 2B1.1(b)(1) provides for offense-level enhancements based on

the amount of loss in fraud cases. So under the Guidelines, the

court determines a defendant’s loss amount in a conspiracy based

on loss incurred as a result of the defendant’s own criminal con-

duct, as well as the conduct of others that was both: “(1) in further-

ance of the jointly undertaken criminal activity; and (2) reasonably

foreseeable in connection with that criminal activity.” United States

v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003).

When a defendant is being held accountable for conduct of

others in the conspiracy, the Sentencing Guidelines commentary

states that “the court must first determine the scope of the criminal

activity the particular defendant agreed to jointly undertake.” §

1B1.3 cmt. n.3(B). So we’ve said, “to determine a defendant’s

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42 Opinion of the Court 22-14074

liability for the acts of others, the district court must first make in-

dividualized findings concerning the scope of criminal activity un-

dertaken by a particular defendant.” Hunter, 323 F.3d at 1319 (quot-

ing United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993)).

But “a sentencing court’s failure to make individualized find-

ings regarding the scope of the defendant’s activity is not grounds

for vacating a sentence if the record support[s] the court’s determi-

nation with respect to the offense conduct, including the imputa-

tion of others’ unlawful acts to the defendant.” United States v. Pe-

trie, 302 F.3d 1280, 1290 (11th Cir. 2002). See also United States v.

Baldwin, 774 F.3d 711, 727 (11th Cir. 2014) (“If the record otherwise

supports the court’s determination [on the scope of a conspirator’s

criminal activity], a failure to make specific findings will not require

vacating the sentence.”).

With these considerations in mind, we review the record

here. As an initial matter, Julie’s claim that the district court did

not make a factual finding about when she joined the bank-fraud

conspiracy is not accurate. Julie objected to the factual finding in

her presentence investigation report that she conspired to commit

bank fraud from 2006 through 2012. The court overruled that ob-

jection at the sentencing hearing “based on what this court heard

at trial,” and it adopted the factual findings in the presentence in-

vestigation report. So the district court adopted the fact that Julie

was involved in the bank-fraud conspiracy from 2006 to 2012.

The problem is that we have not located the evidence the

district court relied on in adopting that finding. As we have already

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22-14074 Opinion of the Court 43

explained, sufficient evidence proves that Julie was involved in the

bank-fraud conspiracy as of 2007. But we are unaware of any spe-

cific evidence showing she was involved in 2006. Braddock’s testi-

mony that Julie was involved in committing bank fraud was in re-

sponse to the questions, “[D]id you commit fraud from 2007 on-

ward just on your own? In other words, was it just you committing

fraud?” And evidence showed that, starting in 2007, proceeds from

fraudulently obtained loans went to Julie’s own company’s ac-

counts and other accounts that Julie had access to. That evidence,

along with other evidence of Julie’s longtime involvement in the

bank-fraud scheme, sufficed to show Julie’s involvement in the

conspiracy beginning in 2007.

But our review of the record hasn’t revealed evidence to

show, even by a preponderance of the evidence, that she was in-

volved in 2006. Indeed, the government’s brief concedes that the

evidence shows Julie “participated in the bank fraud conspiracy

from 2007,” not 2006.

Special Agent Ryskoski’s testimony at the sentencing hear-

ing that he believed Julie had been involved in the bank fraud con-

spiracy “the entire time” is not enough to support the district

court’s adoption of the factual finding that Julie was involved be-

ginning in 2006. That is especially so because the rest of Special

Agent Ryskoski’s testimony pinned her involvement as starting in

2007.

This matters because the government’s loss calculations,

which the district court adopted for purposes of establishing the

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44 Opinion of the Court 22-14074

loss, restitution, and forfeiture amounts, includes loans issued in

2006 and is based, in some cases, on misrepresentations made in

2006. In fact, Special Agent Ryskoski testified at the sentencing

hearing that if he removed loans issued before July 11, 2007, which

was the first date that a fraudulently obtained loan was issued to

Julie’s own company, the actual loss and restitution amount

dropped to $4.7 million. The district court did not address this or

explain why Julie’s loss, restitution, and forfeiture amounts in-

cluded amounts for loans issued before 2007.

The parties do not dispute that sufficient evidence showed

Todd’s fraudulent conduct stretched back to 2006. So we leave his

sentence undisturbed. But we must vacate Julie’s sentence so the

district court can address the narrow issue of what the proper loss

amount attributable to Julie is for purposes of the base offense

level, restitution, and forfeiture. The district court should make

factual findings about when Julie’s involvement in the conspiracy

began, and if it concludes Julie’s involvement started in 2006, it

should identify the evidence on which it bases its finding. In vacat-

ing and remanding on this issue, we express no opinion as to what

the correct loss amount should be.

E. The district court did not procedurally err in imposing

the restitution and forfeiture money judgments as to

Todd.

The Chrisleys argue that we must vacate the restitution and

forfeiture judgments against them and remand for a hearing on

both issues. They assert that the district court failed to explain its

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22-14074 Opinion of the Court 45

findings supporting the judgments, specifically “how it arrived at

its calculations,” and did not allow defendants an opportunity to be

heard on these issues. Because we have already vacated Julie’s sen-

tence, we address our discussion here only to Todd’s circum-

stances.

We review de novo the legality of a restitution or forfeiture

order. United States v. Hasson, 333 F.3d 1264, 1275 (11th Cir. 2003).

We review factual findings underlying the restitution and forfei-

ture amount(s) for clear error. Id.; United States v. Hoffman-Vaile,

568 F.3d 1335, 1340 (11th Cir. 2009).

We begin with restitution. When imposing a restitution

judgment, “[t]he district court must explain its findings with suffi-

cient clarity to enable this court to adequately perform its function

on appellate review.” United States v. Huff, 609 F.3d 1240, 1248

(11th Cir. 2010). District courts enjoy “broad discretion in choos-

ing the procedures to employ at a restitution hearing, ‘so long as

the defendant is given an adequate opportunity to present his posi-

tion as to matters in dispute.” United States v. Baston, 818 F.3d 651,

665 (11th Cir. 2016).

We find no merit to Todd’s argument that the district court

did not explain how it arrived at its calculations for the restitution

amount. After receiving written submissions and holding a lengthy

sentencing hearing, the district court explained it was accepting the

government’s loss calculations as set forth in Exhibit 3 to the gov-

ernment’s sentencing memorandum as the restitution amount.

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46 Opinion of the Court 22-14074

Todd’s argument that the district court did not provide de-

fense counsel an opportunity to be heard is equally unavailing. In

fact, the court expressly overruled the Chrisleys’ objections to the

restitution amount at the sentencing hearing. The court consid-

ered written submissions, testimony, and arguments about restitu-

tion calculations. The court even offered defense counsel, “[F]eel

free to let me know if there’s something I need to be concerned

about at this time regarding restitution.” And even then, the court

stated it would allow the parties up to two weeks from when it

signed the restitution judgment and commitment order and the

Clerk’s Office docketed those filings for defendants to file any mo-

tions to amend restitution. Yet defendants filed no objections.

In sum, then, the district court explained its restitution find-

ings with enough clarity for us to conduct appellate review of

Todd’s sentence, and it provided defense counsel with adequate

opportunities to present their position on restitution. So neither of

Todd’s positions on restitution support vacatur and remand.

As to forfeiture, Todd abandoned any argument that the dis-

trict court violated Federal Rule of Criminal Procedure 32.2 be-

cause he failed to raise the issue in an opening brief. See United

States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004) (per curiam) (col-

lecting criminal cases where we have refused to consider issues

raised for the first time in reply briefs). In fact, the Chrisleys cited

no legal authorities related to their forfeiture arguments in the

opening brief addressing this issue. The four cases they cited con-

cern restitution but not forfeiture. Failure to provide sufficient

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22-14074 Opinion of the Court 47

argument, including legal authority, as to an issue can preclude ap-

pellate review. United States v. Campbell, 491 F.3d 1306, 1315 (11th

Cir. 2007).

But even if we ignore this deficiency, Todd’s only forfeiture-

related passing arguments for review on appeal are that the court

did not sufficiently explain its findings supporting the forfeiture cal-

culation and did not give defendants an opportunity to be heard.

Both arguments fail.

First, the district court’s calculation of the forfeiture amount

is crystal clear from the record. The government relied on the

same calculations for purposes of restitution and forfeiture. The

district court confirmed this at the sentencing hearing. Sentencing

Hr’g at 63. That means the testimony and court discussion about

the loss calculation applied to both the issues of restitution and for-

feiture. The district court also explained that it had reviewed the

Chrisleys’ Memorandum on Loss, Forfeiture, and Restitution be-

fore ruling on objections to the presentence investigation report’s

factual findings. And the district court expressly overruled the

Chrisleys’ objections to the loss calculation, instead accepting the

government’s calculations. So given that the restitution and forfei-

ture amounts turned out to be the same, and based on the court’s

statements at the sentencing hearing, there is no mystery as to how

the district court arrived at the forfeiture amount.

Second, defendants had a sufficient opportunity to be heard

as to forfeiture. Defendants were on notice since the time of the

first indictment that the government would seek forfeiture. And

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48 Opinion of the Court 22-14074

the government filed a motion for forfeiture of property a week

before the sentencing hearing. That motion contained the exact

amount the government sought in forfeiture. Plus, the Chrisleys

filed a Sentencing Memorandum on Loss, Forfeiture, and Restitu-

tion that addressed the government’s motion. And the district

court expressly stated it reviewed and took into account these fil-

ings when it made its factual findings on loss.

In addition, after the district court told defense counsel it

would have two weeks to file any motions to amend the restitution

judgment once it was docketed, the government requested, “[I]f

the court is going to do that with respect to restitution, to put off

delaying the forfeiture order until that time as well.” Id. at 220.

The court granted that request, so defense counsel had two weeks

after the forfeiture order was docketed to file any motions to

amend. But defendants filed no motion as to forfeiture.

Our review of the sentencing hearing transcript as a whole

also reveals that defense counsel could have raised any concerns or

issues with the court’s rulings as to the loss calculation, which all

parties and the court knew were the foundation of the govern-

ment’s calculations on restitution and forfeiture. The district court

gave the Chrisleys’ counsel opportunities to raise any objections

they may have.

At bottom, the district court sufficiently explained how it ar-

rived at the forfeiture and restitution amounts, and it gave Todd

sufficient opportunities to be heard along the way. For these rea-

sons, we affirm the restitution and forfeiture judgments as to Todd.

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22-14074 Opinion of the Court 49

F. The district court did not abuse its discretion by deny-

ing Tarantino’s motion to sever his case or receive a

new trial.

Finally, Tarantino challenges the district court’s denial of his

motion to sever his case from that of the Chrisleys and the denial

of his motion for a new trial based on prejudice he allegedly suf-

fered as a result of the joint trial. We review the district court’s

denial of a motion to sever or its denial of a motion for a new trial

based on failure to sever for abuse of discretion. United States v.

Lopez, 649 F.3d 1222, 1235–36 (11th Cir. 2011).

Tarantino filed a motion to sever his case in December 2019.

The magistrate judge recommended severing his case out of con-

cern that an email between Todd and someone else, unrelated to

Tarantino, could prejudice Tarantino because it referred to a

“crooked accountant.” The magistrate judge also pointed out that

Tarantino was charged with far less criminal activity than the

Chrisleys.

The district court rejected that recommendation and instead

denied the motion to sever. The court explained that, while Tar-

antino may not have been involved in all the alleged schemes

charged in the indictment, that is commonly the case in joint trials.

The court found that a limiting instruction would be sufficient to

prevent any prejudicial spillover. And it excluded the “crooked ac-

countant” email and prohibited references to a “crooked account-

ant” at trial. So the district court tried Tarantino alongside the

Chrisleys, and the jury ultimately convicted him on all counts. On

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50 Opinion of the Court 22-14074

appeal, Tarantino argues he suffered compelling prejudice from

the joint trial and should receive a new trial. We disagree.

The government may join multiple defendants in the same

indictment “if they are alleged to have participated in the same act

or transaction, or in the same series of acts or transactions, consti-

tuting an offense or offenses.” Fed. R. Crim. P. 8(b). “There is a

preference in the federal system for joint trials of defendants who

are indicted together.” Zafiro v. United States, 506 U.S. 534, 537

(1993). And “defendants charged with a common conspiracy

should be tried together.” Lopez, 649 F.3d at 1234 (citation omit-

ted).

If the joinder of defendants in an indictment or a consolida-

tion for trial “appears to prejudice a defendant or the government,”

the court can sever the cases. Fed. R. Crim. P. 14(a). But this hap-

pens only in “exceptional circumstances” that are “few and far be-

tween.” Lopez, 649 F.3d at 1234. And the defendant carries a

“heavy burden” to show that he received an unfair trial and suf-

fered “compelling prejudice.” United States v. Kennard, 472 F.3d

851, 858–59 (11th Cir. 2006) (citation omitted).

When we review a district court’s decision on a motion for

a new trial based on the need for severance, “the question is not

whether we would reach the same decision utilizing these well-es-

tablished principles and considering the evidence anew,” but rather

“the question is whether the district court clearly abused its discre-

tion in [deciding whether to] grant[] a new trial.” United States v.

Pedrick, 181 F.3d 1264, 1272 (11th Cir. 1999). That’s so because

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22-14074 Opinion of the Court 51

“[t]he district court saw the witnesses, heard all of the evidence,

and is in the best position to evaluate whether [the defendant] suf-

fered compelling prejudice warranting a new trial.” Id.

Tarantino argues that his case presents one of those excep-

tional circumstances where severance was required because the

joint trial featured an “overwhelming” amount of evidence about

the Chrisleys’ guilt across three schemes, even though Tarantino

was alleged to be involved in only one scheme with far less evi-

dence presented against him. Plus, Tarantino asserts, the jury may

have misconstrued the legitimate aspects of his role as an advocate

for the Chrisleys when dealing with the IRS because his advocacy

role was presented alongside evidence of the Chrisleys’ own un-

lawful acts. On top of that, he argues, the evidence concerning the

Chrisleys’ wealth and conduct likely inflamed the jury.

We begin by recognizing that the fact that most of the evi-

dence was introduced against the Chrisleys does not demand sev-

erance on its own. United States v. Schlei, 122 F.3d 944, 984 (11th

Cir. 1997) (“The mere fact that there may be an ‘enormous dispar-

ity in the evidence admissible against him compared to the other

defendants’ is not a sufficient basis for reversal.”). That is particu-

larly so here, where there was undisputedly sufficient evidence to

convict Tarantino.

Still, Tarantino argues that this case is “nearly identical” to

Pedrick, where we affirmed the district court’s order granting the

defendant a new trial because he suffered compelling prejudice as

a result of being jointly tried with another defendant, 181 F.3d at

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52 Opinion of the Court 22-14074

1273. We disagree. First, in Pedrick, we thought it was clear “the

jury did not adequately sift all th[e] evidence and make an individ-

ualized determination as to Pedrick.” Id. The jury deliberated for

only three hours and found each defendant guilty on all counts. Id.

Second, and relatedly, in Pedrick, it was “questionable” whether suf-

ficient evidence against Pedrick established her involvement in

eighty-nine of the counts she was convicted of. Id. Third, and most

importantly, when we applied the required abuse-of-discretion

standard in Pedrick, we were reviewing the district court’s order

granting a new trial. And we recognized that the district court was

“in the best position to evaluate whether Pedrick suffered compel-

ling prejudice” because it had seen the witnesses and heard all the

evidence. Id. at 1272. We concluded that the district court’s deter-

mination to grant a new trial fell within its discretion. Id.

Those three considerations we relied on in Pedrick support

affirmance here. First, Tarantino has not shown that the jury failed

to adequately sift through the evidence and make individualized

determinations as to each defendant. Unlike the quick three-hour

deliberations on 125 charges in Pedrick, the jury here deliberated

across three days as to the twelve counts against defendants. Id. at

1273. Plus, here, the jury sent several notes to the judge during

deliberations asking questions about legal requirements and evi-

dence. Among those questions, the jury asked to rehear an audio

tape of the IRS interviewing Tarantino. Unlike in Pedrick, the de-

liberation time and jury questions indicate the jury took its role se-

riously in considering each charge and the evidence against each

defendant separately.

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22-14074 Opinion of the Court 53

Second, unlike the situation in Pedrick, here, there is no dis-

pute that sufficient evidence supports Tarantino’s convictions on

all three counts against him.

Third, the district court denied Tarantino’s motion to sever

and motion for a new trial. So unlike in Pedrick, the decision that

we apply the deferential abuse-of-discretion standard to is a deci-

sion denying relief to Tarantino. But as in Pedrick, the district court

was best positioned to judge whether compelling prejudice inured

to Tarantino. Of course, if that decision were an abuse of discre-

tion, we would reverse. But Tarantino has not shown the district

court’s decision was an abuse of discretion, especially against the

well-established preference for jointly trying conspirators.

And last, but certainly not least, “[a] jury is presumed to fol-

low the instructions given to it by the district judge.” United States

v. Ramirez, 426 F.3d 1344, 1352 (11th Cir. 2005). The Supreme

Court has noted that limiting instructions “often will suffice to cure

any risk of prejudice” when multiple defendants are tried together.

Zafiro, 506 U.S. at 539. Indeed, we have often found that to be the

case. See, e.g., United States v. Francis, 131 F.3d 1452, 1459 (11th Cir.

1997) (“The district court minimized any possible prejudice by in-

structing the jury to consider the evidence against [each defendant]

separately.”); Kennard, 472 F.3d at 859 (“[A] court’s cautionary in-

structions ordinarily will mitigate the potential ‘spillover effect’ of

evidence of a co-defendant’s guilt.”); United States v. Gari, 572 F.3d

1352, 1365 (11th Cir. 2009) (same); Schlei, 122 F.3d at 984 (same).

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54 Opinion of the Court 22-14074

Here, the court instructed the jury, “Although the defend-

ants are being tried together, you must give separate consideration

to each defendant. In doing so, you must determine which evi-

dence in the case applies to a particular defendant and disregard

any evidence admitted solely against some other defendants. The

fact that you may find one of the defendants guilty or not guilty

should not control your verdict as to any other defendant.” That

instruction expressly explained to the jury that it was required to

consider the evidence as it pertained to each defendant separately,

without relying on irrelevant evidence against codefendants. And

based on the jury’s lengthy deliberations and questions to the

court, we have every reason to believe the jury followed that in-

struction.

III. CONCLUSION

For the foregoing reasons, we affirm the district court as to

each issue except for the loss amount attributable to Julie. We va-

cate Julie’s sentence and remand to the district court for the sole

purpose of making necessary factual findings and calculations as to

the proper loss, restitution, and forfeiture amounts, and any re-

quired changes to the sentence that those findings warrant.

AFFIRMED IN PART; VACATED AND REMANDED IN

PART.