United States v. Frank Bell

USCA11 Case: 22-12750 Document: 97-1 Date Filed: 08/14/2024 Page: 1 of 41

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12750

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK BELL,

TYSON RHAME,

JAMES SHAW,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:16-cr-00067-SCJ-CMS-4

____________________

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2 Opinion of the Court 22-12750

Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and BRASHER,

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This criminal appeal concerns currency sellers who de-

frauded retail investors and made false statements to federal agents.

Tyson Rhame, James Shaw, and Frank Bell were owners and offic-

ers of Sterling Currency Group, a currency-exchange business that

sold over $600 million worth of Iraqi dinar and other currencies.

The sellers promoted false rumors of an imminent dinar revalua-

tion, concealed that Sterling paid to advertise on dinar-discussion

web forums and conference calls, and falsely represented that Ster-

ling planned to open physical currency-exchange kiosks across the

country. Rhame and Bell also lied to federal agents when inter-

viewed about their activities. After a five-week trial, the jury con-

victed the sellers of conspiracy to commit mail and wire fraud, mail

fraud, wire fraud, and false statements. The district court sentenced

Rhame, Shaw, and Bell to 180, 95, and 84 months in prison, respec-

tively. On appeal, the sellers challenge the sufficiency of the evi-

dence, jury instructions, evidentiary admissions, and Rhame’s sen-

tence. We affirm the convictions and Rhame’s sentence, except for

the refusal to grant a downward departure, the appeal of which we

dismiss for lack of jurisdiction.

I. BACKGROUND

Tyson Rhame and James Shaw founded and owned Sterling

Currency Group, a currency-exchange business that sold mainly

Iraqi dinar from 2004 until 2015. Sterling began in 2004 as a “garage-

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22-12750 Opinion of the Court 3

run” business, which operated out of Rhame’s and Shaw’s homes

and sold millions of dollars’ worth of currencies a year. In the early

years, Rhame managed most of Sterling’s daily operations, includ-

ing compliance, banking, web content, shipping, logistics, and cus-

tomer service. Shaw’s wife helped fulfill orders, while Shaw re-

mained mostly removed from daily operations.

Sterling began expanding in earnest in early 2010, and the

company hired Frank Bell. Bell became Sterling’s Chief Operating

Officer in 2013. As the “compliance guy,” Bell was responsible for

legal compliance and training employees to adhere to laws and reg-

ulations.

Sterling’s sale of the Iraqi dinar was legal. Much of its market

was retail: most mainstream exchanges refuse to sell the dinar be-

cause the currency is pegged by the Iraqi government, the ex-

change rate remains mostly stable, and a non-market-driven cur-

rency is often unattractive to professional traders. But the dinar re-

mained popular with retail investors because of perennial rumors

that the Iraqi government would soon “revalu[e]” the currency and

its value would skyrocket.

Sterling sold dinars to investors both outright and through

layaway programs. Outright purchasers paid upfront and immedi-

ately received packages of dinars through the mail. Layaway pur-

chasers paid an initial deposit equal to a percentage of their total

purchase and were given a specified timeframe to pay off the re-

maining balance. Sterling offered more expensive, “guaranteed”

layaway options—in which the investor would eventually receive

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4 Opinion of the Court 22-12750

the value of his deposit in dinars no matter if he paid off his bal-

ance—as well as cheaper, nonguaranteed options—in which the in-

vestor would forfeit his deposit if he did not pay in time.

Belief in the revaluation was a crucial incentive for layaway

purchasers, who often lacked the cash needed for an outright pur-

chase. Purchasers testified that their layaway deposits were a bet

on revaluation occurring before their balances came due, such that

their earnings from the currency appreciation could be used to pay

off the remaining balance. But because no revaluation occurred,

purchasers who failed to pay their balances in time forfeited tens of

thousands of dollars in nonrefundable deposits. For example, one

investor lost over $57,000 on 254 nonrefundable deposits, another

lost over $40,000 on 320 deposits, and a third lost over $90,000 on

125 deposits. These forfeitures occurred under the terms specified

in the layaway contracts. The sellers knew that some cash-strapped

layaway purchasers were motivated by the expectation of a reval-

uation. Sterling repeatedly received emails from purchasers who

pleaded for extensions so that they would not miss the revaluation

they believed imminent.

Dinar promoters used online forums regularly to spread the

rumors that fueled layaway purchasers’ belief in an imminent Iraqi

dinar revaluation. Terrence Keller ran one forum called GET

Team. Keller and other GET Team promoters posted often, hosted

telephone conference calls, and ran chat sessions discussing the re-

valuation. Participants primarily discussed “rumors” of the likeli-

hood of a revaluation, and Keller “quite often” stated that a

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revaluation was “happening tonight” or “tomorrow,” though the

rumors never panned out. But followers still believed that Keller

had “knowledge” and “contacts with the Federal Reserve” who of-

fered “an inside track to . . . the dinar world and when it would

revalue.” And followers believed that the revaluation would result

in a “financial windfall” that would multiply the value of their dinar

holdings.

Rhame, Shaw, and Bell did not believe that a revaluation

was likely or imminent—and Bell even called the rumors of a rapid

revaluation “mythology.” For example, in November 2010, Shaw

emailed Rhame to express concerns that he did not want “to risk

everything based on [Rhame’s] belief . . . that the Iraqi dinar will

not [revalue] and it is ok to make millions of dollars in false prom-

ises to our customers,” and that the sellers were “risking serious jail

time as promoters of a ponzi scheme.” Shaw’s brother testified that

Shaw never said that he expected the dinar to “skyrocket over-

night” and, in fact, expected “[j]ust the opposite.” Rhame wrote a

memorandum to a compliance consultant in 2011 that stated that

dinar pricing appeared “very stable with no drastic changes in value

expected in the coming year” and that “[n]o revaluation or denom-

ination changes are expected.”

Still, the sellers promoted misinformation in three ways.

First, they encouraged the spread of false revaluation rumors both

directly and through the GET Team. For example, Rhame wrote

an article for the Sterling website that predicted a “sudden signifi-

cant[] (overnight/over weekend) high revaluation” that could be

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“anywhere along the entire spectrum of rumored possibilities from

$[0].01 to $1.49.” And in late 2010, Sterling began partnering with

the GET Team to spread misinformation. Eventually, Sterling paid

the GET Team $4,000 a month. In exchange, Keller displayed Ster-

ling ads, allowed Sterling representatives to join conference calls,

and encouraged his followers to buy more dinars from Sterling.

This partnership allowed Sterling to push its desired narrative. For

example, in an email chain scheduling a Sterling appearance on a

GET Team call, Keller told Bell, “what ever you would like to bring

to the table Im game for it. . . . You are the group im pushing be-

hind the picture.” In a private message that Keller sent to a Sterling

employee during a simultaneous public chat with followers, Keller

bragged, “u like how I have them [the followers] talking and now

they will buy more.”

Second, the sellers concealed that Sterling paid for advertis-

ing on GET Team’s website and in conference calls. Although Kel-

ler informed followers that Sterling was a “sponsor” of the site, he

never revealed any financial details. Indeed, Keller sought reassur-

ance of secrecy and emailed Rhame and Bell, “I want to make sure

that our arrangement is between us and no one else . . . As no one

else needs to know about our arrangement . . . Please confirm.”

Bell responded, “Absolutely noone but us.” A Sterling customer

service manager testified that if investors asked whether Keller

“was being paid to pump Sterling’s [layaway program],” the “re-

sponse would be no.”

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Third, the sellers told investors that Sterling planned to open

physical exchange kiosks at airports around the country within

days or hours of a revaluation, despite having no such plans. The

airport plan was material to the deception because it lent credibility

to the idea that a revaluation was likely and misled investors into

believing that Sterling would provide the easiest and cheapest op-

tion to exchange dinars for dollars.

In 2015, federal agents twice interviewed Bell about his in-

volvement with Sterling. Bell touted Sterling’s legal compliance re-

gime and distanced himself from the so-called “sketchy” online di-

nar promoters and forums. He explained that “there are a bunch of

guys out there hyping [the dinar] . . . . They create a forum. They

attract . . . people and they sell advertising. . . . [T]hey make good

money because they generate a lot of traffic at their sites.” Bell ad-

mitted that Sterling advertised on dinar forums, but he asserted

that he affirmatively told promoters not to send business to Ster-

ling.

Federal agents also interviewed Rhame. Rhame repeatedly

denied ever promoting the dinar as a good investment, predicting

a revaluation, or having anything to do with dinar promoters or

forums. An agent asked, “[Y]ou’ve never—you personally or on

your website or anything like that have ever said [anything] pro-

moting [the dinar] as a good investment.” Rhame responded,

“Hell, no. . . . Never. You will never find that anywhere.” The

agent then asked whether Sterling had ever paid a dinar promotion

site, and Rhame responded, “I’m 100% positive that any website

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that we would be associated with . . . would have nothing to do

with any kind of investment promotion or any revaluation or any-

thing like that, because that’s just not what we do.” Rhame further

asserted, “We do not promote anything. . . . and we don’t incentiv-

ize anybody else to do it . . . . [I]f we advertise with somebody,

there’s no way in a million years we incentivized them to do that

or anything else like that.” He stated that Sterling’s advertisements

were limited to “strictly, you know, a posting of a banner.”

A grand jury indicted Rhame, Shaw, Bell, and Keller. The

indictment charged the four defendants with conspiracy to commit

mail and wire fraud, 18 U.S.C. § 1349; aiding and abetting each

other to commit four counts of mail fraud, id. §§ 2, 1341; and aiding

and abetting each other to commit four counts of wire fraud, id.

§§ 2, 1343, 1349. The indictment also charged Rhame, Shaw, and

Bell with conspiracy to commit money laundering, id. § 1956(h);

Rhame and Shaw with money laundering, id. §§ 2, 1957, 1952; and

Rhame and Bell with making false statements to federal agents, id.

§ 1001(a)(2). The prosecution later dismissed 20 of the fraud and

money laundering counts.

Over nearly five weeks of trial, the prosecution called 20 wit-

nesses and introduced over 300 exhibits. The sellers objected to

several evidentiary submissions, all of which the district court ad-

mitted. The district court admitted news articles and press releases

warning that Iraqi dinar sales were a scam, to show that the sellers

were on “notice” that their conduct was illegal. These included a

Forbes article about “The Iraqi Dinar Scam”; a warning post from

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a blogger pseudonymously named “Nutrition Dude”; a purported

Bank of America notice warning of dinar sales; and a CNBC news

segment about the prosecution of Brad Huebner. Huebner was an-

other dinar seller who had hosted conference calls predicting a re-

valuation, lied about his business partner’s military service, and

falsely claimed to be starting hedge funds to service his buyers’ im-

minent wealth. The district court gave limiting instructions accom-

panying these admissions. The district court also permitted Sterling

investors to read aloud from previously admitted exhibits of the

sellers’ emails and other communications. And the district court

admitted evidence of Rhame’s lavish lifestyle to prove greed as his

motive for money laundering and fraud.

The prosecution presented no evidence that Sterling vio-

lated its contractual obligations to investors. A case agent testified

that every Sterling customer, so long as she paid outright or ful-

filled the terms of her layaway program, received the dinars that

she paid for. And no right to access airport exchanges was included

as a term in any investor contract.

The sellers requested a jury instruction on the fraud counts.

Their instruction distinguished between the intent to deceive and

the intent to defraud, as described by this Court in United States v.

Takhalov, 827 F.3d 1307, 1315 (11th Cir. 2016). Although the sellers

“agree[d] that Takhalov didn’t say . . . the pattern jury instruction

was wrong,” they proposed that the district court add the high-

lighted language to the then-current version of instructions for mail

fraud and wire fraud:

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To act with “intent to defraud” means to act know-

ingly and with the specific intent to deceive or cheat

someone, usually for personal financial gain or to

cause financial loss to someone else. Proving intent to

deceive alone, meaning deception without the intent to

cause loss or injury, is not sufficient to prove intent to de-

fraud. And merely inducing someone, by means of trick or

deceit, to enter a transaction that he or she otherwise would

have avoided is insufficient to show fraud. It is not fraud if

a Defendant or the Defendants tricked someone into enter-

ing a transaction but nevertheless gave the person exactly

what they asked for and charged that person exactly what

he or she agreed to pay.

The district court rejected the proposal and instead used the

pattern jury instructions. It instructed that “[a] ‘scheme to defraud’

includes any plan or course of action intended to deceive or cheat

someone out of money or property using false or fraudulent pre-

tenses, representations, or promises,” and that “[t]o act with ‘intent

to defraud’ means to act knowingly and with the specific intent to

deceive or cheat someone, usually for personal financial gain or to

cause financial loss to someone else.” See Eleventh Circuit Pattern

Jury Instructions, Criminal Cases O50.1, at 322–23 (Apr. 2016 ed.).

Rhame and Bell also requested an instruction on the false state-

ment counts that if “something is ambiguous, it’s the government’s

burden to clear up that ambiguity.” The district court also denied

that request.

The jury convicted Rhame, Shaw, and Bell on all remaining

counts of fraud conspiracy, mail fraud, wire fraud, and false

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statements. The jury acquitted the defendants of the money laun-

dering and related conspiracy counts, and it acquitted Keller of all

charges. Rhame, Shaw, and Bell moved for a new trial and for judg-

ments of acquittal. The district court denied the motions. As those

posttrial motions were pending, the Judicial Council for the Elev-

enth Circuit amended the pattern jury instructions to add language

similar to the first sentence of the sellers’ proposed fraud instruc-

tion. See Eleventh Circuit Pattern Jury Instructions, Criminal Cases

O50.1, at 2 (Jan. 2019 rev.).

At sentencing, Rhame submitted over 60 letters attesting to

his character, military service, and history of charitable deeds. After

a weeklong sentencing hearing, the district court imposed within-

or below-guidelines sentences for Rhame, Shaw, and Bell, of 180,

95, and 84 months in prison, respectively. The district court applied

a sophisticated-means enhancement and a substantial-financial-

hardship enhancement to Rhame’s offense-level calculation, and it

did not grant a downward departure based on Rhame’s military

service. The district court also applied an obstruction-of-justice en-

hancement based on Rhame’s false testimony during a suppression

hearing. Rhame had testified, in an effort to suppress his statements

to federal agents, that an agent had directed him to end a call with

his attorney. The district court made a credibility determination,

based on the agent’s contrary testimony, that Rhame had commit-

ted perjury.

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II. STANDARDS OF REVIEW

We review de novo the sufficiency of the evidence. United

States v. Watkins, 42 F.4th 1278, 1282 (11th Cir. 2022). We interpret

trial evidence in the light most favorable to the verdict and will not

disturb the verdict “unless no trier of fact could have found guilt

beyond a reasonable doubt.” Id. (citation and internal quotation

marks omitted). The evidence need not “exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every con-

clusion except that of guilt.” United States v. Williams, 390 F.3d 1319,

1323–24 (11th Cir. 2004) (citation and internal quotation marks

omitted).

We also review de novo the legal correctness of a jury instruc-

tion. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). If

the given instruction correctly states the law, we review for an

abuse of discretion the refusal to give a supplemental requested in-

struction. See Watkins, 42 F.4th at 1282.

We review evidentiary rulings for an abuse of discretion. Id.

We review de novo the application of the Sentencing Guide-

lines. United States v. Perez, 943 F.3d 1329, 1332 (11th Cir. 2019). We

lack jurisdiction to review the denial of a downward departure

from the Sentencing Guidelines unless the district court incorrectly

concluded that it had no authority to depart. United States v. Dudley,

463 F.3d 1221, 1228 (11th Cir. 2006). We review for clear error the

factual findings that support a sentencing enhancement. United

States v. Presendieu, 880 F.3d 1228, 1248 n.12 (11th Cir. 2018). We

also review for plain error a constitutional objection to a

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sentencing enhancement raised for the first time on appeal. United

States v. Maurya, 25 F.4th 829, 836 (11th Cir. 2022).

III. DISCUSSION

We divide our discussion into six parts. First, we reject the

sellers’ arguments that the evidence does not support their fraud

convictions. Second, we explain that the district court correctly in-

structed the jury on those counts. Third, we reject Rhame’s and

Bell’s arguments that the evidence did not support their false state-

ment convictions. Fourth, we explain that the district court cor-

rectly instructed the jury on those counts. Fifth, we explain that the

district court did not commit evidentiary errors that warrant a new

trial. Sixth, we explain that the district court did not err when it

sentenced Rhame.

A. Evidence Supports the Fraud Convictions.

The sellers argue that the evidence is insufficient to support

their mail fraud, wire fraud, and fraud conspiracy convictions for

three reasons. First, the sellers argue that the government’s theory

of fraud fails under Takhalov. Second, the sellers argue that the

prosecution failed to prove that the sellers had lied about the reval-

uation or the airport plan. Third, on the conspiracy charge, the

sellers argue that the prosecution failed to prove that the sellers

agreed to commit an illegal act. We explain in turn why each chal-

lenge fails.

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1. The Sellers’ Misrepresentations Prove Their Intent to Defraud.

The sellers argue that because investors “received exactly

[the dinar] they paid for,” the prosecution’s theory of fraud fails as

a matter of law under Takhalov, 827 F.3d at 1315 (internal quotation

marks and citation omitted). We disagree. This argument misun-

derstands our precedents.

To prove mail or wire fraud, the government must prove

that the sellers intentionally participated in a “scheme or artifice to

defraud.” 18 U.S.C. §§ 1341, 1343. The federal fraud statutes pro-

hibit “deceptive schemes to deprive the victim of money or prop-

erty.” Kelly v. United States, 140 S. Ct. 1565, 1571 (2020) (alterations

adopted) (citation and internal quotation marks omitted). To prove

an intent to defraud, the government must prove that the sellers

either knew that they were making false statements or were acting

with reckless indifference to the truth. United States v. Wheeler, 16

F.4th 805, 819 (11th Cir. 2021).

Intent to defraud also requires the intent to harm victims by

misrepresenting “the value of the bargain.” Id. The deception must

go to the “nature of the bargain itself”—an ancillary lie will not suf-

fice. Takhalov, 827 F.3d at 1314. A deception is illegal when a fraud-

ster creates a “discrepancy between benefits reasonably anticipated

because of the misleading representations” and what the fraudster

delivered. Id. (quoting United States v. Starr, 816 F.2d 94, 98 (2d Cir.

1987)). We explained in Takhalov that the “two primary forms” of

fraudulent deception are when a fraudster lies about the price or

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about the characteristics of what he is selling. Id. at 1313–14 (em-

phasis added).

The “characteristics” of a good are not narrowly limited to

its physical properties or authenticity. Whether a given character-

istic affects a good’s pecuniary value to the buyer, and figures ma-

terially into the bargain, is highly contextual. See Neder v. United

States, 527 U.S. 1, 22 n.5 (1999) (“[A misrepresentation] is material

if . . .‘a reasonable man would attach importance to its existence or

nonexistence in determining his choice of action in the transaction

in question.’” (quoting Restatement (Second) of Torts § 538 (Am.

L. Inst. 1977)). Indeed, the test for a material deception “cannot be

stated in the form of any definite rule, but must depend upon the

circumstances of the transaction itself.’’ United States v. Feldman,

931 F.3d 1245, 1272 (11th Cir. 2019) (W. Pryor, J., concurring)

(quoting Prosser and Keeton on Torts § 108, at 753 (5th ed. 1984)).

A deception need not have a calculable price difference or

result in a different tangible good or service being received to con-

stitute fraud. In United States v. Dynalectric Co., for example, we ex-

plained that contractors’ bid-rigging scheme for government con-

tracts could sustain a federal fraud conviction even if the scheme

had not “cost the [government] or anyone else one red cent.”

859 F.2d 1559, 1576 (11th Cir. 1988) (citation and internal quotation

marks omitted). We held that the contractors’ lies—that their bids

stemmed from competition instead of collusion—proved their

fraudulent intent, even if they ultimately performed the agreed-

upon services at a fair bid price. Id. at 1562, 1576; see Feldman,

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931 F.3d at 1271 (W. Pryor, J., concurring) (“The gravamen of the

scheme to defraud, in other words, was not any misrepresentation

about ‘the price’ or ‘the characteristics of’ the bargained-for work.”

(quoting Takhalov, 827 F.3d at 1314)). Likewise, in Wheeler, we held

that stock-sellers who had concealed how much they received in

commissions, and who had misled investors about a stock’s poten-

tial listing on a major exchange and association with a prominent

technology company, had the requisite intent to defraud. See

16 F.4th at 820–21. That the price impact was indeterminate and

that investors had “got the number of shares they bargained for at

the price they bargained for” did not vitiate the stock-sellers’ fraud-

ulent intent. Id. at 816. And in Watkins, we held that a bank bor-

rower’s misrepresentations as to the true recipient of a loan went

to the “very nature” of the bargain and so supported a bank fraud

conviction. See 42 F.4th at 1286–87.

A jury could reasonably have found that Rhame, Shaw, and

Bell deceived investors about a core attribute of the dinar: the odds

of its appreciation. Investors were led to believe that their dinars

would imminently skyrocket in value. That high probability of

profit was an essential characteristic of the asset that investors

thought they were purchasing. See Takhalov, 827 F.3d at 1314. It

was the reason many made the purchase.

As the government explains, the sellers’ fraud was no differ-

ent from a lottery scam. If a customer buys a $10 lottery ticket be-

cause he is promised a one-in-ten chance of winning the jackpot,

he has been defrauded if his actual odds of winning are one-in-a-

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million. The customer’s out-of-pocket loss might be zero—he

wanted a $10 lottery ticket, and he received a $10 lottery ticket—

but he has still been duped. He has suffered a pecuniary loss if he

would not have paid $10 knowing his true odds. Just as the lottery

fraudster is culpable for misleading customers about the odds of

the jackpot, the sellers are culpable for falsehoods about the reval-

uation. And that the dinar’s exchange rate was set by the Iraqi gov-

ernment does not mean that investors got “exactly what they paid

for.” Sterling charged exchange fees that were baked into the dinar

price, and investors paid fees under the illusion that the revaluation

would compensate them.

The record also establishes that the sellers’ lies about the air-

port kiosks went to the core of the bargain with investors. The lies

were not “ancillary” when investors chose to buy from Sterling be-

cause of its promised airport exchanges. One investor testified, for

example, that the promised kiosks provided crucial assurance that

secure exchange facilities would be available after the revaluation.

The wide geographic availability of airport kiosks was a ser-

vice, tethered to the dinars, that Sterling promised to investors. If a

car dealer falsely promised roadside assistance to customers and

the promises materially influenced customers to buy from that

dealer, the falsehoods would be actionable fraud. So too are the

sellers’ false promises of airport exchange services—even if the in-

vestors did not later need to use the exchange service. See Shaw v.

United States, 137 S. Ct. 462, 467 (2016) (mail fraud is actionable

“even if [victims] ultimately did not suffer unreimbursed loss”).

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Because a reasonable jury could have found that the sellers’ lies

about the revaluation and airport plan went to the nature of the

bargain, those lies may prove the sellers’ intent to defraud.

We have never held that the federal fraud statutes are cate-

gorically inapplicable to fraudulent inducement schemes. The

sellers argue that misrepresentations that “simply influence[]” a

counterparty to transact cannot constitute actionable fraud. Alt-

hough “merely” establishing that a fraudster “induced the victim

to enter into a transaction that he otherwise would have avoided”

cannot prove fraudulent intent, see Takhalov, 827 F.3d at 1310 (al-

terations adopted) (citation and internal quotation marks omitted),

material inducements may still be actionable fraud. Our precedents

establish that fraudulent inducements about a collateral but still

material matter are punishable under the federal statutes. See Dyn-

alectric Co., 859 F.2d at 1576; Watkins, 42 F.4th at 1286–87; see also

Feldman, 931 F.3d at 1270 (W. Pryor, J., concurring). To be clear,

the inducement scheme’s perpetrators must still intend the depri-

vation of a victim’s money or property. See Wheeler, 16 F.4th at 819.

But both fraud-in-the-factum and fraudulent inducement schemes

fit “squarely within the ‘well-settled meaning’ of ‘actionable

“fraud.”’” Feldman, 931 F.3d at 1271 (W. Pryor, J., concurring)

(quoting Neder, 527 U.S. at 22).

2. Evidence Proves that the Sellers Misled Investors

About the Revaluation and the Airport Plan.

The sellers argue that the evidence was insufficient to prove

that they misled investors about an imminent revaluation or lied

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about the airport plan. We will not overturn a jury verdict for lack

of evidence unless no reasonable construction of the facts would

allow a finding of guilt beyond a reasonable doubt. Wheeler, 16

F.4th at 819. A split verdict is further “evidence that the jury con-

sidered the charges carefully and individually, addressed the

strength of the evidence on each charge, and reached a reasoned

conclusion.” United States v. Siegelman, 640 F.3d 1159, 1180 (11th

Cir. 2011). And because the sellers’ convictions were predicated on

a conspiracy, Rhame, Shaw, and Bell are guilty if the evidence es-

tablishes that their coconspirators made misrepresentations in sup-

port of the conspiracy. See Watkins, 42 F.4th at 1284 (“[A] defendant

may be convicted of [wire] fraud without personally committing

each and every element of . . .[wire] fraud, so long as the defendant

knowingly and willingly joined the criminal scheme.” (second al-

ternation in the original) (citation and internal quotation marks

omitted)). The sellers’ burden in challenging the sufficiency of the

evidence is heavy, and they fail to meet it.

The record is replete with evidence that the sellers made

false assurances about an imminent dinar revaluation, both directly

and through the GET Team, despite their disbelief in the rumors.

Examples of the sellers’ misrepresentations are extensive, from

Rhame’s web article predicting a “sudden significant[] (over-

night/over weekend) high revaluation,” to Rhame’s appearance in

promotional videos, to Sterling’s continued payments to Keller de-

spite the sellers’ knowledge that Keller was making false predic-

tions and lying about his inside sources. The sellers promoted the

dinar and encouraged Keller’s propaganda despite believing the

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20 Opinion of the Court 22-12750

revaluation to be “mythology.” Indeed, Shaw emailed Rhame to

express concerns that he did not want “to risk everything based on

[Rhame’s] belief . . . that the Iraqi dinar will not [revalue]” and that

he did not think “it is ok to make millions of dollars in false prom-

ises to our customers.” That the rumors were purportedly a “pre-

diction” about future events does not excuse the sellers: a jury may

find “[d]eclarations of opinion as to future events which the declar-

ant does not in fact hold” to be fraudulent. United States v. Amrep

Corp., 560 F.2d 539, 543 (2d Cir. 1977).

The evidence that the sellers lied about the airport plan is

even stronger. In addition to the promises posted on the Sterling

website that touted the company’s ability to open satellite offices

within hours or days of a revaluation, Rhame also directly emailed

individual investors with assurances that Sterling had plans to op-

erate at airports in Miami, New York, Dallas, and almost a dozen

other cities. But Sterling had neither the plans nor the ability to

open physical exchanges. Sterling employees testified that they had

never seen any operational, training, or personnel materials related

to any airport plan, and did not know of any employees capable of

staffing the exchanges. Likewise, multiple airport representatives

testified that Sterling never applied for the licenses necessary to op-

erate as a currency exchange.

Last, we reject Shaw’s argument that there was insufficient

evidence that he participated in the fraud because he did not per-

sonally make any misrepresentations to investors. As Sterling’s co-

owner and bankroller, Shaw argues that he was merely a “big-

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22-12750 Opinion of the Court 21

picture investor with no involvement in day-to-day operations.”

But Shaw can be convicted even if his participation in the conspir-

acy was “slight” compared to his coconspirators’. See Watkins, 42

F.4th at 1285 (citation and internal quotation marks omitted). And

the government may prove the elements of conspiracy and Shaw’s

participation “by circumstantial evidence.” See United States v. Mo-

ran, 778 F.3d 942, 960 (11th Cir. 2015).

A jury could reasonably have found that Shaw knowingly

participated in the fraudulent scheme. The record reflects that

Shaw bankrolled Sterling’s finances, was “instrumental” in manag-

ing Sterling’s website where fraudulent promises were posted, un-

derstood that dinar promoters were driving Sterling’s sales, and

knew that Sterling was promising investors that they could “ex-

change anywhere in the world within 12 hours of any revaluation.”

Indeed, in an email to Rhame, Shaw voiced concerns about Ster-

ling’s legality:

The point is that [my wife] and I have worked way

too hard in life for us to risk everything based on your

belief (even if I agree with you) that the Iraqi dinar

will not [revalue] and it is ok to make millions of dol-

lars in false promises to our customers. Not only are

we risking everything we own, we are risking serious

jail time as promoters of a ponzi scheme.

In another email, he raised concerns about stoking investors’

unrealistic expectations:

[My wife] and I are concerned about getting letters to

you thanking you for helping them with their hospital

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22 Opinion of the Court 22-12750

with their purchase of $20k for a $200k layaway and

other similar letters. We are not Charlatans and I do

not like making money under false pretenses . . . Our

life is happy without swindling people.

This evidence is sufficient to prove Shaw’s involvement.

The jury could have reasonably found that all the sellers defrauded

investors by misleading them about the likelihood of revaluation

and the airport plan.

3. Evidence Proves that the Sellers Agreed to

Commit an Illegal Act.

The sellers argue that the evidence is insufficient to prove

that they agreed to commit an illegal act. We disagree. The gov-

ernment may prove agreement to join a conspiracy by inferences

drawn from conspirators’ conduct or by circumstantial evidence.

United States v. Gonzalez, 834 F.3d 1206, 1214 (11th Cir. 2016).

The record is replete with both direct and circumstantial ev-

idence that the sellers agreed with each other and with Keller fraud-

ulently to promote Sterling’s sales. There are extensive email com-

munications. In one example, Rhame bragged, when he emailed

Shaw his article predicting an imminent revaluation, that “this

should get some people excited.” In another, Shaw emailed Rhame

that his wife was “was crying last night because she knows we are

running an illegal operation.” And Sterling’s secret payments to

Keller provide further evidence of culpable conduct. Keller repeat-

edly emailed the sellers to tout that his false revaluation rumors

had “sent a butt load of customers to [Sterling’s] site”; that he had

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22-12750 Opinion of the Court 23

generated a “ton of orders”; and “[Sterling is] the group [he was]

pushing behind the picture.” A jury could reasonably have found

that the sellers agreed with each other and with Keller to sell dinars

based on fraudulent representations.

B. The District Court Properly Instructed the Jury on the Fraud Charges.

The sellers argue that the district court erred by failing to

give a Takhalov instruction on the fraud charges. We again disa-

gree. The district court correctly instructed the jury.

The parties dispute the standard of review. Shaw argues that

we should review the jury instructions de novo because the instruc-

tions misstated the law by omitting the sellers’ proposed language.

The government responds that we should review for abuse of dis-

cretion.

We review for an abuse of discretion. The pattern jury in-

structions given by the district court contained no errors. But the

sellers argue that additional instructions were needed to fully com-

municate the elements of fraud. We have consistently reviewed

similar challenges for an abuse of discretion post-Takhalov. See Wat-

kins, 42 F.4th at 1287 (refusal to give Takhalov instruction in a wire

and bank fraud case); United States v. Waters, 937 F.3d 1344, 1353

(11th Cir. 2019) (same in wire fraud case).

The sellers proposed jury instructions that they said re-

flected the distinction that we drew in Takhalov between the intent

to deceive and the intent to defraud. See 827 F.3d at 1313–14. The

sellers proposed that the jury be instructed that “[p]roving intent

to deceive alone, meaning deception without the intent to cause

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24 Opinion of the Court 22-12750

loss or injury, is not sufficient to prove intent to defraud.” That lan-

guage has since been incorporated into the Eleventh Circuit Pat-

tern jury instructions. See Eleventh Circuit Pattern Jury Instruc-

tions, Criminal Cases O50.1, at 2 (Jan. 2019 rev.). The sellers also

proposed the instruction that “[i]t is not fraud if” the sellers “tricked

someone into entering a transaction but nevertheless gave the per-

son exactly what they asked for and charged that person exactly

what he or she agreed to pay.” The Judicial Council has not

adopted that language.

To prove reversible error, the sellers must establish that the

requested jury instruction “(1) was a correct statement of the law;

(2) was not adequately covered in the instructions given to the jury;

(3) concerned an issue so substantive that its omission impaired the

accused’s ability to present a defense; and (4) dealt with an issue

properly before the jury.” United States v. Westry, 524 F.3d 1198,

1216 (11th Cir. 2008) (citation and internal quotation marks omit-

ted). To be a correct statement of law, an instruction must be com-

plete and not misleading. United States v. Silverman, 745 F.2d 1386,

1396 (11th Cir. 1984). We reverse “only if we are left with a sub-

stantial, ineradicable doubt as to whether the jury was properly

guided in its deliberations.” United States v. Dohan, 508 F.3d 989, 993

(11th Cir. 2007).

The district court did not abuse its discretion by refusing to

give the sellers’ proposed instruction. Most of the instruction—that

is, that “[i]t is not fraud if” the sellers “tricked someone into enter-

ing a transaction but nevertheless gave the person exactly what

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22-12750 Opinion of the Court 25

they asked for”—is an incomplete statement of the law and risked

misleading the jury. See Silverman, 745 F.3d at 1396. That language

presents only the sellers’ theory of the case. The government pos-

ited that the sellers’ misrepresentations did go to the “characteris-

tics” of the dinar and so constituted actionable fraud, see Takhalov,

827 F.3d at 1314, but the defense posited that the misrepresenta-

tions were ancillary when investors received “exactly [the dinars]

they asked for.” By merely restating the sellers’ defense theory, the

proposed instruction was one-sided. It presented only a scenario

that would not be fraud, while omitting scenarios that would be

fraud, and so failed to instruct the jury how to tell the difference.

We have affirmed the refusal to give supplemental instructions—

“[t]hough composed of quotations from our opinion in Takha-

lov”—in a similar context because pairing the instructions with only

the defense theory risked misleading the jury. See Waters, 937 F.3d

at 1353 (affirming refusal of proposed Tahkalov instruction that was

an “incomplete statement of the law” and “didn’t tell the jurors

how to tell the difference” between deceit and fraud (citation and

internal quotation marks omitted)).

Nor did the omission of the instruction impair the sellers’

ability to present a complete defense. See Westry, 524 F.3d at 1216;

United States v. Eckhardt, 466 F.3d 938, 947–48 (11th Cir. 2006). The

part of the sellers’ instruction now incorporated into the current

version of the Eleventh Circuit pattern jury instructions—that is,

that “[p]roving intent to deceive alone, meaning deception without

the intent to cause loss or injury, is not sufficient to prove intent to

defraud” was substantively incorporated in the district court’s jury

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26 Opinion of the Court 22-12750

charge. The instruction that the district court gave explained that a

“‘scheme to defraud’ includes any plan or course of action intended

to deceive or cheat someone out of money or property.” So when

viewed as a whole, the district court’s instruction made clear that

the defendant must intend “to deceive the [victim] and deprive

[him] of something of value.” Shaw, 580 U.S. at 63. Because the dis-

trict court’s charge “addressed the substance” of the first sentence

of the sellers’ proposed instruction, the sellers’ “ability to present

an effective defense was [not] impaired.” Watkins, 42 F.4th at 1287.

The district court did not abuse its discretion when it refused to

give the sellers’ proposed instruction.

C. Evidence Supports Rhame’s and Bell’s False Statements Convictions.

Rhame and Bell argue that their convictions for false state-

ments to federal agents cannot stand. They argue that the govern-

ment failed to prove the falsity of their statements and that their

statements were fundamentally ambiguous. We disagree.

To sustain the convictions for false statements, the prosecu-

tion must prove that the sellers made statements that were both

false and material, that they had specific intent, and that the state-

ments were within the jurisdiction of an agency of the United

States. United States v. Boffil-Rivera, 607 F.3d 736, 740 (11th Cir.

2010). An answer to a line of questioning that is “fundamentally am-

biguous” might be “insufficient as a matter of law” to support a

conviction. United States v. Manapat, 928 F.2d 1097, 1099 (11th Cir.

1991) (citation and internal quotation marks omitted).

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22-12750 Opinion of the Court 27

Sufficient evidence supported Rhame’s four convictions for

false statements. First, Rhame was charged for falsely stating that

“he and Sterling had never advertised the Iraqi dinar as a good in-

vestment.” In response to an agent’s question, “[Y]ou’ve never—

you personally or on your website or anything like that have ever

. . . promot[ed] [the dinar] as a good investment,” Rhame re-

sponded, “Hell, no. . . . Never. You will never find that anywhere.”

That statement is contradicted by a Sterling promotional video in

which Rhame asserted that “the Iraqi dinar stands alone as one of

the most promising investments today.”

Second, Rhame was charged for falsely stating that “he and

Sterling had never promoted and talked about a potential Iraqi di-

nar revaluation.” Rhame and a federal agent had the following ex-

change:

Agent: Along the lines of you don’t promote the dinar

as an investment, have you ever promoted or talked

about on your website the RV or the revaluation?

Rhame: Never.

Agent: Okay.

Rhame: You’ll never find it anywhere.

Agent: Okay.

Rhame: Because that’s not—it’s not our job. It’s not

our place and—absolutely not.

That exchange is contradicted by Rhame’s statements in

Sterling promotional videos and his article on the Sterling website,

titled “Iraqi Dinar Revaluation,” in which he asserted that “sudden

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28 Opinion of the Court 22-12750

significant[] (overnight/over weekend) high revaluation seems

very possible.”

Third, Rhame was charged for falsely stating that “he and

Sterling had never paid commissions to third parties to promote

Iraqi dinar sales.” Rhame asserted, in an evasive and roundabout

answer, that “our advertising, as a matter of fact we’ve had—I

know we’ve had people in the past say, well, . . . I don’t think we

deal with anything like that at all anymore, but anybody that’s ever

said, hey, . . . we want to be paid based off how much, you know,

currency we sell.” An agent interjected, “Like a commission?”

Rhame responded, “No. . . . No eff-ing way.” Rhame’s denial is

contradicted by, for example, emails that discuss paying “a 2% sales

commission” to a “campaign [that] will promote the purchase of

Iraqi dinars,” and emails offering to pay a promoter “$10 per refer-

ral” for sales.

Fourth, Rhame was charged for falsely stating that “he and

Sterling had never incentivized other blogs and websites to pro-

mote Sterling’s dinar sales.” Rhame denied incentivizing promot-

ers in the following exchange with an agent:

Rhame: We do not promote anything. And we

don’t—and we don’t incentivize anybody else to do it,

just so you’re—so we’re crystal clear. We don’t incen-

tivize any—you know, if we advertise with somebody,

there’s no way in a million years we incentivized them

to do that or anything else like that.

...

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22-12750 Opinion of the Court 29

[M]y understanding is that if we have any advertise-

ments anywhere on—on a website, it’s strictly, you

know, a posting of a banner.

...

Agent: So you’re not—you’re not aware of any—pay-

ing anybody on another blog or website like that to

promote—

Rhame: I’ll tell you. Hell, no. No way.

Agent: Okay.

Rhame: We don’t do that.

Agent: Okay.

Rhame: Not in a million years.

Agent: Okay.

Rhame: No, we just don’t do it.

Those statements are contradicted by Sterling’s $4,000-per-

month payments to Keller, who boasted that he had “been pump-

ing the heck out of you guys [Sterling] on [his] site.”

Sufficient evidence also supports Bell’s two convictions for

false statements. First, he was charged with falsely stating that “he

and Sterling maintained a ‘firewall’ with Iraqi dinar promoters” and

that “he affirmatively told promoters ‘not to drive business’ to Ster-

ling’s website.” Second, Bell was charged with stating that he had

“told [Keller] not to promote Sterling.” In his second interview,

agents asked Bell about the “firewall” comment from his first inter-

view. An agent referenced an email between Keller and Bell in

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30 Opinion of the Court 22-12750

which Keller “indicates he’s e-mailing you discussing that he’s . . .

promoted Sterling in the chat rooms.” The agent stated that “[the

email] kind of goes to my concern of—of, you know, you spoke of

that firewall that you tried to keep . . . but then the promoters are

sending direct messages [to you] about kind of what they’re doing

in these chat rooms to direct business to Sterling.” Bell replied,

“I’ve told him [Keller] I don’t want him doing it and I don’t want

to hear about it.” Bell’s statements that he “maintained a firewall”

and told promoters, Keller included, not to drive business to Ster-

ling are contradicted by his many emails encouraging Keller’s pro-

motion of Sterling. In one exchange, for example, Keller boasted,

“I have a ton of peeps cashing in with you guys,” and Bell re-

sponded, “That is terrific. Thanks for having me on the call.” In

another, Rhame emailed Bell, “We generally take care of [Keller]

because he sends a lot of business our way.”

Rhame and Bell’s argument that their convictions cannot

stand because their statements were ambiguous also fails. Our

precedents preclude only prosecutions “based on fundamentally

ambiguous questions.” E.g., Manapat, 928 F.2d at 1100 (emphasis

added). “Precise questioning is imperative as a predicate” for crimi-

nal offenses based on perjury, Bronston v. United States, 409 U.S. 352,

362 (1973) (emphasis added), because of the “unfairness” of con-

victing a defendant when “the questions forming the basis of the

charge are . . . vaguely and inarticulately phrased by the interroga-

tor,” Manapat, 928 F.2d at 1099 (citation and internal quotation

marks omitted). The distinction between ambiguous questions and

ambiguous answers is crucial: a criminal defendant escapes a

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22-12750 Opinion of the Court 31

perjury charge only if the federal agents asked an ambiguous ques-

tion; he cannot wriggle out of the same charge through an evasive

answer. Rhame and Bell’s argument, premised on the ambiguity of

their answers, fails as a matter of law.

There was nothing “fundamentally ambiguous” about

Rhame’s and Bell’s statements or the agents’ questions. The prose-

cution offered ample evidence to prove the falsity of the defend-

ants’ statements. And the agents’ questions, when viewed in the

conversations’ context, are clear. The jury could have reasonably

found, based on Rhame and Bell’s answers, that they lied to federal

agents.

D. The District Court Properly Instructed the Jury

on the False Statement Charges.

Rhame argues that the district court abused its discretion by

refusing a proposed supplemental instruction on ambiguity. The

sellers objected to the false statement pattern instructions at the

charge hearing and requested an instruction reflecting the “clear

case law that says that [if] something is ambiguous, it’s the govern-

ment’s burden to clear up that ambiguity.” Their proposed instruc-

tion added that “[t]he Government bears the burden of negating all

literally truthful interpretations of a statement when the statement

is ambiguous and subject to multiple interpretations” to the pattern

instructions. The district court denied the request and used the pat-

tern instructions for each false statement count. Denial of a pro-

posed instruction is reversible error only if the proposal is “a

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32 Opinion of the Court 22-12750

correct statement of the law.” Westry, 524 F.3d at 1216 (citation and

internal quotation marks omitted).

Rhame’s requested instruction failed to provide a correct

statement of the law. A federal agent need not negate all ambiguity

in an interviewee’s answer to sustain a false statement conviction;

the agent is responsible only for asking unambiguous questions. See

Manapat, 928 F.2d at 1099–1100; see also Bronston, 409 U.S. at 362.

So the district court did not abuse its discretion when it omitted

Rhame’s ambiguity instruction.

E. No Evidentiary Error Warrants a New Trial.

The sellers argue that the district court committed three ev-

identiary errors that individually and cumulatively warrant a new

trial. First, the sellers object to the admission of news reports and

press releases that dinar sales were a scam. The government of-

fered the evidence to prove that the sellers were on notice that their

conduct was illegal. Second, the sellers object because the prosecu-

tion called fraud victims to read aloud from previously admitted

exhibits, about which the victims had no personal knowledge.

Third, Rhame objects to the inclusion of evidence of his wealth and

exclusion of evidence of his charitable donations. We reject each

challenge in turn.

1. The Media Reports and Press Releases Were

Not Hearsay or Unduly Prejudicial.

The sellers object that the admission of various media re-

ports, press releases, and emails—all of which warned that dinar

sales were a scam—were inadmissible hearsay and prejudicial. The

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22-12750 Opinion of the Court 33

challenged evidence includes a CNBC news video about convicted

dinar seller Brad Huebner; a Forbes articled titled “You Can’t Fix

Stupid: The Iraqi Dinar Scam Lives”; a warning post from a blogger

pseudonymously named “Nutrition Dude”; a purported Bank of

America notice condemning the “Iraqi dinar scam”; and an email

informing the sellers that a customer’s bank refused to wire Ster-

ling money for the dinar “scam.” The sellers emailed links or at-

tachments of the media exhibits to each other. The emails included

concerned comments about the exhibits’ contents, for example,

“[t]his isn’t good,” and “not [a] great article.” The district court ad-

mitted the video, the Bank of America warning, the emails, and the

news articles with limiting instructions.

The sellers erroneously argue that the article and warnings

were inadmissible hearsay. Hearsay is a statement, other than one

made by the individual testifying at trial, offered to prove the truth

of the matter asserted. FED. R. EVID. 801(c). Evidence admitted to

prove the listener’s state of mind is not hearsay. United States v.

Schlei, 122 F.3d 944, 981 (11th Cir. 1997). The district court admit-

ted the news reports, emails, and articles as proof that the sellers

were on notice of the wrongfulness of their conduct and of the fact

that other individuals had been prosecuted for similar behavior.

The evidence was not inadmissible hearsay. See id.

The sellers also argue that the reports, emails, and articles

were unduly prejudicial and had limited probative value. See FED.

R. EVID. 403. According to the sellers, media sources could not

show the sellers’ awareness of their wrongful conduct when the

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34 Opinion of the Court 22-12750

sellers correctly understood the act of selling dinars to be legal. Fed-

eral Rule of Evidence 403 provides that the district court has discre-

tion to exclude otherwise relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice. Exclu-

sion under that rule “is an extraordinary remedy” that the district

court “should invoke sparingly, and the balance should be struck in

favor of admissibility.” United States v. Lopez, 649 F.3d 1222, 1247

(11th Cir. 2011) (citation and internal quotation marks omitted).

And a limiting instruction mitigates the risk of undue prejudice.

United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). We

must presume, in absence of contrary evidence, that the jury fol-

lowed limiting instructions. Id. at 1352.

The district court did not abuse its discretion in admitting

the media reports and press releases with limiting instructions. We

presume that the jury followed the district court’s instructions that

the news articles could “not be considered for the truth of any of

the matters asserted,” and that reports of other dinar sellers’ con-

duct “may have no bearing on what happened in [Sterling’s] case

or resemble the facts of [Sterling’s] case.” Nor can we say that the

media reports were unfairly prejudicial in the light of the immense

body of evidence—20 witnesses and nearly 300 other exhibits—in-

troduced over nearly five weeks of trial. Indeed, the sellers’ own

communications characterized their business as an “illegal opera-

tion” and a “ponzi scheme.” The district court did not commit re-

versible error when it admitted the evidence.

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22-12750 Opinion of the Court 35

2. The District Court Did Not Abuse Its Discretion When

It Permitted Sterling Investors to Read Aloud

from Previously Admitted Exhibits.

Rhame objects that the prosecution repeatedly called wit-

nesses to read from exhibits about which they had no personal

knowledge. He cites no rule or precedent to support his argument,

but only highlights that the district court worried that the proce-

dure might be “appealable.” The prosecution called multiple Ster-

ling investors—that is, fraud victims—to read aloud from particu-

larly damaging exhibits of the sellers’ emails and other communi-

cations. The parties had stipulated before trial to the authenticity

of those exhibits. Rhame cites no authority for the proposition that

witnesses cannot read from authenticated, previously admitted ev-

idence. And our precedents say that they can do so. See United States

v. Willner, 795 F.3d 1297, 1318 n.17 (11th Cir. 2015) (“Anyone can

state what a document says or read from it if it has been admitted

into evidence, and permitting this testimony was not error.”). The

district court did not abuse its discretion.

3. The District Court Properly Included Evidence

of Rhame’s Wealth and Excluded Evidence

of His Charitable Donations.

The district court did not abuse its discretion when it admit-

ted evidence of Rhame’s lavish lifestyle and excluded evidence of

his charitable donations. Rhame’s lifestyle expenditures and ac-

companying photographs were admissible to prove his motive for

fraud. United States v. Bradley, 644 F.3d 1213, 1272 (11th Cir. 2011)

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36 Opinion of the Court 22-12750

(“The district court had broad discretion to admit the Govern-

ment’s ‘wealth evidence’ so long as it aided in proving or disprov-

ing a fact in issue.”); see also United States v. Hill, 643 F.3d 807, 843

(11th Cir. 2011) (“[W]ith financial crimes, the more money, the

more motive.”). And his charitable donations were inadmissible

character evidence. See United States v. Langford, 647 F.3d 1309, 1329

(11th Cir. 2011) (defendant’s donations were inadmissible character

evidence).

F. The District Court Lawfully Sentenced Rhame.

Rhame argues that the district court erred at sentencing in

four ways: first, it should have granted a downward departure

based on his military service; second, it erred by applying a sophis-

ticated-means enhancement; third, it erred by applying an obstruc-

tion-of-justice enhancement; and fourth, it plainly erred by apply-

ing a substantial-financial-hardship enhancement. We address each

argument in turn.

First, we lack jurisdiction to review the refusal to grant

Rhame a downward departure under section 5H1.11 of the Sen-

tencing Guidelines. See United States Sentencing Guidelines Man-

ual § 5H1.11 (Nov. 2023). At the sentencing hearing, the district

court entertained and then denied Rhame’s motion for a sec-

tion 5H1.11 downward departure based on his 32-year service ca-

reer in the Air Force. “We lack jurisdiction to review a district

court’s decision to deny a downward departure unless the district

court incorrectly believed that it lacked authority to grant the de-

parture.” Dudley, 463 F.3d at 1228. Absent contrary evidence, we

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22-12750 Opinion of the Court 37

assume that the district court understood that it had authority to

depart downward. Id. Rhame does not argue that the district court

believed that it lacked authority to grant the departure; he instead

argues that the district court failed to consider the length and mer-

itorious nature of his service. Because nothing in the record sug-

gests that the district court thought it lacked authority, we lack ju-

risdiction over this issue and must dismiss.

Second, the district court did not err by applying the two-

level sophisticated-means enhancement in connection with the

fraud charges. See U.S.S.G. § 2B1.1(b)(10)(C). The guidelines define

“sophisticated means” as “especially complex or especially intricate

offense conduct pertaining to the execution or concealment of an

offense.” Id. § 2B1.1 cmt. n.9(B). We have affirmed application of

the enhancement when a criminal scheme “involved repetitive and

coordinated activities by numerous individuals who used sophisti-

cated technology to perpetrate and attempt to conceal the

scheme.” United States v. Barrington, 648 F.3d 1178, 1199 (11th Cir.

2011). A district court may apply the enhancement when only

“some—but not all—aspects of a scheme are sophisticated.”

Wheeler, 16 F.4th at 830. The district court found that the sellers’

scheme involved “repetitive coordinated activities and sophisti-

cated technologies” to perpetrate fraud, and that Rhame “was an

organizer and leader of the criminal activity.” Those findings are

supported by the record and sufficient to support the application of

the enhancement.

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38 Opinion of the Court 22-12750

Third, the district court did not err when it applied the two-

level obstruction-of-justice enhancement based on Rhame’s per-

jury during a suppression hearing. See U.S.S.G. § 3C1.1. A district

court may apply the enhancement if a defendant “willfully ob-

structed or impeded, or attempted to obstruct or impede, the ad-

ministration of justice with respect to the investigation, prosecu-

tion, or sentencing” of his offense of conviction. Id. § 3C1.1(1). The

district court imposed the enhancement after it found that Rhame

had “testified falsely” under oath during the suppression hearing,

that the testimony was material, and that the falsity “was not based

on mistake, confusion[,] or faulty memory.” Rhame’s false testi-

mony was an effort to suppress, because of alleged Miranda viola-

tions, his statements during his interview with federal agents.

Rhame testified that during the interview, an agent had “ma[de]

[him] get off the phone” during a call with his attorney. An agent

testified that Rhame had “hung up the phone on his own.”

When, as here, an officer’s testimony directly conflicts with

a defendant’s, “[c]redibility determinations are typically the prov-

ince of the fact finder.” United States v. Ramirez-Chilel, 289 F.3d 744,

749 (11th Cir. 2002). We defer to the district court unless its “un-

derstanding of the facts appears to be unbelievable.” Id. (citation

and internal quotation marks omitted). The district court found the

agents credible and found that the testimony and later behavior of

Rhame’s attorney “simply d[id] not support” Rhame’s testimony

that the agents had forced him to end the call. That credibility de-

termination is not unbelievable, and the district court did not

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22-12750 Opinion of the Court 39

clearly err by applying an obstruction enhancement based on

Rhame’s perjury.

Fourth, the district court did not plainly err when it applied

the six-level substantial-financial-hardship enhancement. See

U.S.S.G. § 2B1.1(b)(2)(C) (providing a six-level increase for causing

substantial financial hardship to 25 or more victims). Rhame argues

that applying the substantial-financial-hardship enhancement vio-

lated the Ex Post Facto Clause, see U.S. CONST. art. 1, § 9, cl. 3, be-

cause the enhancement did not exist at the time of his offense in

2015. The Ex Post Facto Clause bars a defendant from being sen-

tenced under a version of the guidelines that would provide a higher

sentencing range than the version in place at the time of his crimi-

nal conduct. Peugh v. United States, 569 U.S. 530, 533 (2013). We de-

termine the relevant comparator range by looking at the entire

manual in effect at the time of the conduct. See United States v. Bai-

ley, 123 F.3d 1381, 1403–04 (11th Cir. 1997). Because Rhame did not

raise this issue before the district court, we review it only for plain

error. See Maurya, 25 F.4th at 836.

Rhame cannot prove that he would have been clearly enti-

tled to a lower sentencing range under the comparator 2014 man-

ual. To be sure, the 2014 manual did not include a substantial-fi-

nancial-hardship enhancement, but it did include a general victim-

impact enhancement that would have applied to Rhame. The 2014

manual provided that an offense involving 50 or more victims trig-

gered a four-level increase, and an offense involving 250 or more

victims triggered a six-level increase. U.S.S.G. § 2B1.1(b)(2)(B)–(C)

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40 Opinion of the Court 22-12750

(2014). The Sentencing Commission amended the guidelines in

November 2015, after Sterling ceased operations, to add the hard-

ship component but lower the victim-count threshold. The amend-

ment provided for a four-level increase if an offense resulted in sub-

stantial financial hardship to five or more victims, and a six-level

increase if an offense resulted in substantial financial hardship to 25

or more victims. Id. § 2B1.1 amend. 792. To trigger the highest

available enhancement in 2018, the prosecution needed to prove

substantial hardship to only 25 or more victims, so it highlighted

only 32 of the over 600 victims who submitted impact statements.

But based on the existence of the hundreds of others impacted,

Rhame would likely have qualified for the six-level enhancement

available under the 2014 manual. See id. § 2B1.1(b)(2)(C) (2014).

Rhame cannot prove that he clearly would have been entitled to a

lower sentencing range under the guidelines in effect at the time of

his conduct. See United States v. Elbeblawy, 899 F.3d 925, 939 (11th

Cir. 2018).

Rhame argues that our decision in Maurya dictates the op-

posite conclusion. 25 F.4th at 836. We disagree. In Maurya, we held

that that the district court plainly erred when it applied the substan-

tial-financial-hardship enhancement (added in 2015) to an offense

that occurred in 2014. Id. Importantly, the government conceded

the error. Id. And we ruled that the error affected the defendant’s

substantial rights. Id. Here, the government makes no such conces-

sion. Instead, it argues that Rhame cannot prove that he would

have received a lower guidelines range under the 2014 manual.

Rhame does not meaningfully argue otherwise. Instead, he asserts

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22-12750 Opinion of the Court 41

that this conclusion is “incorrect” without explaining why. Under

plain error review, the defendant must establish that any error was

“clear or obvious” and affected “[his] substantial rights.” United

States v. Ware, 69 F.4th 830, 853 n.17 (11th Cir. 2023). Rhame’s con-

clusory response falls short of satisfying this burden.

IV. CONCLUSION

We AFFIRM the sellers’ convictions. We also AFFIRM

Rhame’s sentence, except as to his appeal of the district court’s re-

fusal to grant a downward departure; we DISMISS that part of his

appeal for lack of jurisdiction.