# United States v. Hill

> Court of Appeals for the Eleventh Circuit · June 14, 2011 · 643 F.3d 807

URL: https://www.frixlaw.com/law-library/cases/218749

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Phillip E. HILL, Marcus Alcindor, A.K.A. Christopher Alcindor, Robert Powers, Christine Laudermill, David Van Mersbergen, Fred Farmer, David Thomas, Leslie Rector, Barbara Brown, A.K.A. Barbara Eubanks, Defendants-Appellants
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** June 14, 2011
- **Citations:** 643 F.3d 807; 2011 U.S. App. LEXIS 12004; 2011 WL 2314155
- **Precedential status:** Published
- **Opinion:** Opinion by Carnes
- **Judges:** Edmondson, Carnes, Anderson
- **Cited by:** 264 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by Battle v. State, 824 S.E.2d 335 (2019).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/218749

## How later opinions describe it (automated extraction)

- concluding that the defendant’s sentence did not create an unwarranted disparity after considering particular circumstances of the defendant’s conduct and rejecting the comparison between the sentence and those convicted of similar crimes elsewhere in the nation because “we [w…
- concluding that the de- fendant’s sentence created no unwarranted disparity compared with the sentences of defendants convicted of similar crimes else- where in the nation because “a sentence imposed in this circuit is [not] subject to a national grade curve”
- holding that there was a strong basis for finding no prima facia case existed where the government used 64% of its strikes against black jurors, but several unchallenged black jurors served on the 18-person jury
- concluding that district court’s comments when ruling on evidentiary objections were not prejudicial and “could not have had any effect on the jury because they were made outside its presence”
- rejecting a severance contention where “[a]lthough the district court, in the interests of efficiency and judicial economy, understandably refused to give the jury a curative instruction every time evidence irrelevant to the charges against [the appellant] was introduced, the …

## Opinion text

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 14, 2011
No. 07-14602 JOHN LEY
________________________ CLERK

D. C. Docket No. 05-00269-CR-TWT-11-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHILLIP E. HILL,
MARCUS ALCINDOR,
a.k.a. Christopher Alcindor,
ROBERT POWERS,
CHRISTINE LAUDERMILL,
DAVID VAN MERSBERGEN,
FRED FARMER,
DAVID THOMAS,
LESLIE RECTOR,
BARBARA BROWN, a.k.a. Barbara Eubanks,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
_________________________

(June 14, 2011)
Before EDMONDSON, CARNES, and ANDERSON, Circuit Judges.

CARNES, Circuit Judge:

When Phillip Hill was a young man growing up the small town of Sumatra,

Florida he helped tend his grandfather’s beehives. He would, as his lawyer would

later tell the jury, “get the honey out of the hives.” And he was good at what he

did, being named “Florida beekeeper of the year” when he was twenty years old.

Three decades later, Hill got involved in the busy hive of Atlanta’s high-end

residential real estate market. His goal was still to get out as much honey as he

could. From 2000 to 2003 Hill and his associates scooped out of the market

almost $22 million in illicit gain. They did it by fraudulently obtaining over 300

mortgage-backed loans for buyers who used the loans to purchase Atlanta-area

houses and condominiums from Hill and his associates at more than market value.

Almost all of those loans, totaling $110 million, went into default causing lenders

and guarantors to be stung with over $38 million in losses. Innocent homeowners

in neighborhoods that were hit with foreclosures and distorted property values

caused by the scheme also felt the pain, and many people who were used as straw

buyers suffered ruined credit and a number of them went bankrupt.

2
Big fraud schemes generally give rise to big prosecutions, and this one is no

exception. In this trial alone there were a dozen defendants, and the 187-count

indictment against them involved more than 300 transactions. The government’s

exhibit list, which was 178 pages long, included 1,135 exhibits that filled 8 filing

cabinets. The government also presented more than 100 witnesses, either through

live testimony or the parties’ stipulation about what that testimony would be. The

presentation of the evidence took 31 trial days. In the end, all but two of the

twelve defendants were convicted of at least some charges, and they were

sentenced to terms of imprisonment ranging from 5 months to 28 years.

Big multi-defendant prosecutions generally give rise to big appeals and long

opinions. Regrettably, this one is no exception.

I. Factual Background

A. The Scheme

Hill or entities he created purchased properties that they sold to straw

buyers for substantially more than the cost or value of those properties. The sales

were financed with mortgages based on property values that were inflated by

various fraudulent representations that Hill orchestrated. The buyers ultimately

defaulted on the loans and the mortgages were foreclosed, but by then Hill and his

3
associates had gotten their profits from the sweet deals they had made by selling

the properties at inflated prices.

The higher the property value the larger the loan, the larger the loan the

higher the sales price, and the higher the sales price the larger the profit. In order

to obtain loans for the highest possible property value, and reap the highest

possible profit, Hill and his associates made a multitude of misrepresentations to

lenders. They lied a lot. They lied about the true buyers, and they lied about the

source of the down payments, and they lied about the value of the properties, and

they lied about the income and employment of the buyers, and they lied about

whether the buyers would occupy the properties, and they lied about whether any

other properties owned by the buyers were being leased.

Hill and his associates lied about the true owners of the properties in order

to disguise the fact that Hill-owned entities were behind all of the transactions and

were actually selling the properties to themselves. Unbeknownst to the lenders,

Hill had recruited people with good credit scores to serve as straw buyers of the

properties. He even had some of them purchase several properties from him using

loans from different lenders, all of which were obtained within a short period of

time so that each successive lender would not find out about the other loans to that

borrower. Once multiple loans or mortgages showed up on the buyer’s credit

4
report, which typically took a few weeks, it became difficult for that buyer to

qualify for new loans. At that point, the buyer’s usefulness to Hill was at an end

and he would recruit a new buyer.

Hill and his associates lied about the source of the down payments to cover

up the fact that Hill had supplied most or all of that money to the straw buyers.

Lenders want to know that money for a down payment actually comes from the

buyer because a buyer who has a substantial stake in the property is considered a

better credit risk. That is why they inquire about the source of a down payment

before making a loan. Hill circumvented that safeguard in a variety of ways.

Sometimes Hill or an associate would give a borrower money to park in her bank

account just long enough for the lender to verify the money’s presence, then they

would take it back. Other times they falsified the HUD-1 settlement statements1

that were signed at the closings to show “cash from borrower” when the money

had actually come from Hill, an entity he controlled, or one of his associates. Yet

other times cashier’s checks were forged or altered to show earlier earnest money

payments from the buyers to Hill as seller, when in fact that money had come from

1
“The Housing and Urban Development-1 (‘HUD-1’) statement is a settlement form used
in closing a property sale; it details the costs and fees associated with a mortgage loan.” Busby v.
JRHBW Realty, Inc., 513 F.3d 1314, 1319 (11th Cir. 2008) (citing United States v. Gaudin, 515
U.S. 506, 508, 115 S.Ct. 2310, 2312 (1995); Briggs v. Countrywide Funding Corp., 188 F.R.D.
645, 646 (M.D. Ala.1999)).
5
other sources. The false checks were created by altering actual checks from the

bank account of a straw buyer. With most or all of the loans, the borrowers signed

documents at closing falsely representing that they were supplying the down

payment money.

Hill and his associates lied about the value of the properties to circumvent

lenders’ loan-to-value requirements and increase the selling price. Those lies were

told through fraudulently inflated property valuations that Hill procured. For

example, a bank would make a loan for $200,000 under the assumption that it was

lending 80% on a property worth $250,000, when in reality the bank was lending

133% on a property worth only $150,000. To pull this off Hill needed the

cooperation of appraisers, and he bought what he needed. The appraisers

supported their inflated valuations by cherry-picking inappropriate comparative

sales; by concealing recent prior sales of the same property for far lower amounts;

by including upgrades that had not actually been done; and by neglecting to report

conditions that would depress property values, such as a property’s proximity to

railroad tracks or a landfill or its infestation with black mold.

Hill and his associates lied about the straw buyers’ income on the loan

applications in order to qualify the buyers for loans of the size they were seeking.

And those lies in turn required lies about the buyers’ employment and positions to

6
avoid arousing suspicions about the reported income. As part of the lies some

borrowers got “promoted” on their loan applications. For example, Eddie

Blanchard, a postal clerk in a small Louisiana town, became “Postmaster of

Atlanta” on his application. Other buyers acquired impressive-sounding executive

titles at companies where they had never worked or at companies that did not even

exist. If the lenders tried to verify the employment and income information, Hill’s

associates would generate fake W-2s and pay stubs, or they would answer phone

calls posing as the borrower’s employer.

Hill and his associates lied about the intended use of the properties in order

to get the better loan terms and interest rates available for owner-occupied

properties. Lenders operate on the assumption that a borrower will be more

motivated to make payments on his own home than on an investment property,

which is why investment loans require higher interest rates and larger down

payments. As for condominiums, some developments had restrictions on the

percentage of units that could be rented out, and many lenders would not lend on

condominium units if the complex’s owner-occupancy rate was below a certain

level. Carrying out Hill’s instructions, straw buyers represented on each loan

application that they intended to use the property as their “primary residence,”

even though they actually were buying multiple properties and had no intention of

7
moving into any of them. Some of the buyers slipped up and pointed this out at

closings. Most of them were told by those conducting the closing (who were

being paid by Hill) that they had to say they were going to occupy the property in

order to get the loan. Other buyers signed their name to blank application forms,

leaving Hill and his associates to generate whatever false information was

necessary to meet the lender’s underwriting standards.

Hill and his associates lied about whether any residences that the buyers

already owned and occupied would be leased in order to cover up the fact that the

new properties would not be used as residences. Again, owner-occupied housing

attracts better loan-to-value ratios than investment property does. And the straw

buyers who did disclose to lenders that they were buying the properties for

investment needed to show that the properties would produce enough rental

income to cover the mortgage payments. Hill and his associates met this need by

generating fake lease contracts with nonexistent tenants or by grossly inflating the

income generated by properties that actually were rented.

Hill’s scheme needed not only a lot of lying liars but also a slew of straw

buyers. Hill recruited the straw buyers by pitching a business model that

supposedly involved buying distressed properties at a discount, renovating and

furnishing them, renting them out on lucrative short-term leases to corporate

8
executives, athletes, and entertainers, and later selling them for a handsome profit.

He told his “investors” — the straw buyers — that they would not have to put any

of their own money into the deal, just their name and good credit. Hill assured

them that he would take care of mortgage payments, taxes, insurance, association

fees, and all other expenses, and that he would maintain the properties, lease them,

and collect the rents.

After the straw buyers purchased properties, Hill would have them sign

quitclaim deeds, conveying the properties back to him. Those quitclaim deeds

were concealed from the lenders, and they were not recorded until Hill was ready

to resell the property. Ordinarily, the earlier mortgages would have been picked

up on a title search before a later loan was made, but Hill bribed some of the

attorneys doing the closing work to report clear title to the lenders. In that way he

was able to run some of the properties through the lending process more than

once, thereby generating a second or third round of illicit gains.

In order to get the money he needed for the down payments that the straw

buyers fraudulently claimed to have provided at their closings, Hill borrowed

“hard money” — short-term cash loans at double-digit interest rates — from

wealthy acquaintances like Fred Filsof and John Kruger. The success of the

scheme depended on the fraudulently obtained loan proceeds coming in fast

9
enough to pay off the hard money loans. The only way Hill could stay current on

existing mortgage loans was by using the incoming flow of sales proceeds.

Eventually the whole house had to collapse. Within a few months of their

closings, straw buyers found themselves besieged with letters and phone calls

from banks complaining that payments on their loans were not being made. Hill

promised the straw buyers he would take care of the payments, but he never did.

Once their credit was ruined, they were no longer of any use to him and he quit

returning their calls.

Although all of the buyers had good credit scores before they met Hill, most

of them lacked the assets to make down payments on the properties. Many would

have had difficulty making the payment on a single loan, let alone on the multiple

mortgages that were taken out in their names. Although some (maybe all) of the

borrowers suspected something fishy was going on, they played their roles

anyway. When questioned, some of them claimed that they thought that the

transactions must be legal because there were attorneys present at the closings.

The attorneys, however, made a point of leaving the room when the checks were

passed around.

In return for their part in the scheme, the buyers were paid anywhere from

$10,000 to $40,000 for each loan transaction. As some of them later testified at

10
trial, however, those payments were not worth the damage done to their credit

records once the loans went into default and the mortgages were foreclosed.

Those Hill lured in as straw buyers were not the only ones who were injured

by the scheme. The neighborhoods where the properties were located suffered

from depressed housing values because of the foreclosures that always followed

the purchases. The collateral damage from Hill’s fraud was even worse at the

condominium complexes because, as we have mentioned, once the percentage of

investor-owned units exceeds a certain threshold, lenders generally will refuse to

loan money for any other units in that complex. At complexes where Hill had

bought and flipped numerous units, the value-distorting fraudulent appraisals,

foreclosures, and related litigation between Hill and the condominium associations

destroyed value, tied up title, and made it difficult or impossible for the hundreds

of legitimate owner-occupiers to sell or refinance their own units. Because Hill’s

units failed to pay their dues, the complexes also lacked the funds necessary to

maintain common areas, which further depressed the value of the properties.

B. Hill’s Associates2

2
Although numerous people were involved in every step of Hill’s scheme, in order to
simplify the discussion in this subsection, we name only those who were prosecuted in this case.
11
Hill could not carry out such a sophisticated scheme without plenty of help.

He had a swarm of loan brokers, closing attorneys, appraisers, assistants, and

recruiters.

Leslie Rector began working for Hill during the summer of 2000 and

became his right-hand man. He was responsible for managing, coordinating, and

facilitating Hill’s scheme, and he worked with all of the key co-conspirators,

including the straw buyers, recruiters, brokers, appraisers, and closing attorneys.

He supplied the false lease agreements used to obtain loans, and after the closings

he got the straw buyers to sign quitclaim deeds conveying the properties back to

Hill in return for a promise that Hill would make the mortgage payments for them.

Several mortgage brokers, including Robert Powers, actively deceived the

lenders by representing that the borrowers intended to use the properties as a

primary residence, or by concealing the true origin of the down payments.

Appraisers such as Fred Farmer and Barbara Brown performed fraudulent

appraisals on the properties, giving them inflated values and concealing earlier

sales so that the buyers could obtain more money from lenders than the properties

were actually worth.

To feed the scheme’s appetite for straw buyers, Hill used a network of

recruiters. Marcus Alcindor, Riley Graham, Christine Laudermill, and David

12
Thomas all recruited straw buyers by telling them that they would be purchasing

the properties for Hill when in reality they were buying them from him. The

recruiters would promise the buyers that Hill would pay the mortgages on their

“investment properties.” Cheryl Denny, David Thomas, and David Van

Mersbergen were among the large number of people who served as straw buyers

for properties associated with Hill.

C. The Properties

Hill’s scheme involved a host of houses, condominium units, and some

residential lots in the Atlanta area. Some of the properties had been on the market

for months without selling. After Hill bought them, he immediately re-sold them

at much higher prices to his straw buyers in deals financed by fraudulently

procured loans. Some of the properties Hill bought had fallen into a bad state

while they sat vacant, but that did not stop him from using them. For example,

after buying one house for $1.4 million, Hill used an inflated valuation to re-sell it

to a straw buyer for $2.8 million, even though the house was infested throughout

with black mold.

In a similar fashion, Hill bought and resold one group of residential lots. He

used one of his companies, Estates Atlanta, Inc., to purchase 34 residential lots

and six completed homes located in the Cascade subdivision. Later, Marcus

13
Alcindor and Riley Graham (aka Riley Williams) formed the Alcindor-Williams

Group, LLC, which bought 27 of the 34 Cascade lots from Estates Atlanta with a

loan from Centrum Financial. In their loan application Alcindor and Graham

made several false statements and representations, including a fraudulent financial

statement and falsified sales agreements between Estates Atlanta and straw buyers

of some of the lots. The loan request also included a fraudulent appraisal that

valued the 27 lots at $2.7 million but failed to reveal the earlier purchase of all 34

lots for less than that amount or that these “luxury” lots were actually bordered by

a railroad track and a landfill.

Like the fraudulent loans on houses and condominiums, Alcindor and

Graham had to show Centrum that they had a stake in the Cascade venture in order

to qualify for the loan. To make that showing, they presented Centrum with

altered checks as evidence of their payments for marketing work that was never

actually done, Hill perjured himself in an affidavit stating that the Alcindor-

Williams Group had paid him $150,000, and Alcindor and Graham presented at

closing a check that was supposedly paid to Hill, when it actually came from Hill.

Unbeknownst to Centrum, the Alcindor-Williams Group had entered into an

agreement with Hill, through Estates Atlanta, for a second loan secured by a

promissory note that was to be funded by the money they made from fraudulent

14
sales to straw buyers of three Hill-owned houses in the Cascade subdivision. Hill

then used those fraudulently obtained loan proceeds to pay off one of his own

creditors who had loaned him money on the lots.

D. The Charter Bank Fraud

Once mortgage lenders began to catch on to the fraud, several quit dealing

with Hill. Desperate to keep the hive humming, Hill sought out a new source of

financing. Christopher Baker, a banking client of Charter Bank, introduced him to

Fred Vargas, a vice president at Charter. Baker presented Hill as someone who

needed a loan and who also could provide Vargas with an exciting real estate

opportunity. Vargas was excited by the Hill investment scheme and the chance to

make some quick money. He bought several condominiums from Hill at

“discounted” prices with the intention of flipping them at a profit and replacing the

money he had stolen before anyone noticed it was gone. In order to finance his

purchase of those properties, Vargas stole money from the bank by using

fraudulently created lines of credit.

Exploiting the opportunity presented by his new confederate in crime, Hill

got Vargas to issue lines of credit to two Hill-controlled entities, Atlanta Condo

Parking and Storage and Atlanta Millennium, which were supposedly secured by

extra parking spaces for sale in condominium complexes and by (nonexistent)

15
“accounts receivable.” Because Vargas only had authority to make loans of

$100,000 or less without seeking the approval of a supervisor, he set up two

separate lines of credit for the two Hill entities, one at $90,000 and one at $80,000.

After Hill defaulted on these loans, as did a suspiciously high number of other

borrowers who had worked with Vargas, the bank investigated and uncovered

Vargas’ scheme in late 2002, which eventually led to his resignation from the bank

in March 2003.

E. The Investigation

Lenders began investigating after they noticed a high number of loan

defaults associated with certain brokers. During their internal investigations,

auditors uncovered falsified information and valuations in some loan applications.

In 2001 Fannie Mae began an investigation, and then the IRS initiated its own

criminal investigation. Investigators approached several participants in August

and September of 2001 to discuss plea deals. In the meantime, Hill kept his

scheme going by continuing to fraudulently “flip” houses and condominiums well

into 2003 despite his awareness from late 2001 onward that he was under

investigation; he was even receiving subpoenas during that time.

Wayne Jenkins and Ted Tagalakis, loan brokers who had worked for Hill,

began cooperating with the government’s investigation in late 2001 and early

16
2002. Each of them pleaded guilty in separate cases and received reduced

sentences in exchange for their cooperation and testimony at trial.

Rector, who was Hill’s second in command, was approached by

investigators in February 2003. He began giving interviews and providing

documents, and he continued cooperating well into 2005 until negotiations broke

down, and he was indicted in January 2006.

Vargas began cooperating with the government’s investigation near the end

of 2003, implicating Hill in the Charter line of credit fraud. In May 2004 Vargas

pleaded guilty in a separate case to charges of conspiracy and bank fraud and was

sentenced to 51 months imprisonment. After he testified for the government in

this trial, his sentence was reduced under a Rule 35 motion to 26 months. See

Fed. R. Crim. P. 35.

In November of 2004, Hill, Baker and other Vargas bank clients were

indicted in a case involving the Charter line of credit conspiracy. Hill’s case was

later severed from that one and the charges against him were consolidated with

others in this case.

II. Procedural History

A. The Indictment

17
This case went to trial on the third superseding indictment, which was

returned in November 2006. It charged 18 defendants with a total of 187 counts,

including three separate conspiracies and a host of substantive counts.3 The

charges were grouped around each of the three conspiracies.

The first group of charges, Counts 1 through 14, charged Hill and Baker

with conspiracy to defraud Charter Bank and Trust in violation of 18 U.S.C. §

371; with bribing Vargas in connection with Charter’s business and transactions in

violation of 18 U.S.C. §§ 215(a)(1); with two instances of bank fraud in violation

of 18 U.S.C. § 1344; with four instances of making false statements to influence

the credit decision of a financial institution in violation of 18 U.S.C. § 1014; and

with six instances of money laundering in violation of 18 U.S.C. § 1957.

The second group of charges, Counts 15 through 18, charged Hill, Alcindor,

Moss, Baker, and Graham with conspiring to defraud Centrum Financial Services

3
Several defendants who had been charged in earlier incarnations of the indictment or
separately by information opted to plead guilty, including: appraiser Julian Perez and his assistant
Jeremy Dercola; loan brokers Wendell Higgs, Brant Petree, Wesley Golden, and Michael Flake;
recruiters Rashid Muhammad and Willam Chavis; straw buyer Cortney Jackson; and closing
attorneys Chris Halcomb and Andrew Wolf. Perez, Higgs, Petree, Muhammad, Chavis,
Halcomb, and Wolf all testified for the government at trial.

Apart from the nine appellants, defendants who were named in the third and final
superseding indictment included: Hill associate Christopher Baker and straw buyer Carl Best, for
whom arrest warrants were still outstanding at the time of trial; straw buyer Cheryl Denny and
marketing consultant James Moss, who were acquitted in this trial on Rule 29 motions; recruiter
and straw buyer Dean Thomas (brother of David Thomas, an appellant who was also a recruiter
and straw buyer), who was convicted in this trial but did not appeal; and straw buyer Annette
Spear, who was severed from this trial along with Graham.
18
in connection with the sale of the 27 lots in the Cascade subdivision to the

Alcindor-Williams Group in violation of 18 U.S.C. § 371, and with three

substantive counts of wire fraud in violation of 18 U.S.C. § 1343.

The third group of charges begins with Count 19, which charged that all of

the appellants conspired with each other and with Carl Best, Annette Spear, Dean

Thomas, William Chavis, Cheryl Denny, Michael Flake, and Graham to defraud

various mortgage lenders in violation of 18 U.S.C. § 371. Counts 20 through 33

charged those defendants with making false statements to influence the credit

decision of a bank in violation of 18 U.S.C. § 1014, with each charge relating to

the particular mortgage loans in which each defendant was involved. Counts 34

through 38 charged specific instances of mail fraud related to mortgage loans in

violation of 18 U.S.C. § 1341, and Counts 39 through 48 charged specific

instances of wire fraud related to mortgage loans in violation of 18 U.S.C. § 1343.

Counts 49 through 181 charged money laundering related to transactions

involving the proceeds of the frauds alleged in the prior counts of the indictment

in violation of 18 U.S.C. §§ 1956 and 1957. Finally, Counts 182 through 187

charged additional counts of credit application fraud related to mortgage loans

obtained from Flagstar Bank in violation of 18 U.S.C. § 1014.

B. Pretrial Motions

19
Alcindor, Rector, Van Mersbergen, Moss, David Thomas, Graham, and

Annette Spear moved to sever their cases. The court granted Graham’s motion

after finding that his insistence on proceeding pro se would cause delay and

distraction at the main trial. It granted Spear’s motion for a severance because the

only evidence of her involvement stemmed from her prior relationship with

Graham.4

Before trial, a dispute arose over Rector’s proffer agreement when the

government moved in limine to bar the defendants from mentioning in their

opening statements that they had tried to cooperate by making proffers and that the

government only prosecuted them because it was dissatisfied with what they had

to say. Rector responded to the government’s motion by filing a motion in limine

of his own to enforce the part of the proffer agreement that barred the government

from using proffer-derived evidence against him except in limited circumstances.

Because the motions were filed just before trial, the district court opted to take

them under advisement.

C. Trial

4
The government dropped all charges against Spear before Graham went to trial.
Graham was convicted in a separate trial and his appeal was consolidated with this one. In a
separate opinion issued today, we are affirming Graham’s conviction. See United States v.
Graham, No. 08-14736 (11th Cir. 2011).
20
The nine appellants — Hill, Alcindor, Powers, Laudermill, Van

Mersbergen, Farmer, Rector, David Thomas, and Brown — plus Dean Thomas,

Cheryl Denny, and James Moss pleaded not guilty and went to trial. The trial

lasted from January 16 through March 14, 2007. The government’s case consisted

of 1,135 exhibits and the testimony (or stipulation about the testimony) of more

than 100 witnesses, some of whom were cooperating co-conspirators. Others were

officials or agents of the victim lenders. An investigating agent also testified to

provide, among other things, an overview of the case.

The district court worked hard to keep the trial from getting out of control

and consuming even more time and resources than it did. In the interests of

efficiency and judicial economy, the court limited opening statements, sometimes

restricted cross-examination, urged both sides to stipulate to the authenticity of

various records and to what lenders would say, and in the presence of the jury

encouraged both the prosecution and the defense to “move on.” In exchange for

the defendants’ making reasonable and appropriate stipulations at trial in order to

streamline the proceedings, the court promised to reward their cooperation at

sentencing, and on at least one occasion the court intimated that failure to do so

might lead to less favorable treatment at sentencing.

21
At the end of the government’s case in chief, the court heard arguments on

the defendants’ Rule 29 motions for judgments of acquittal. Each defendant went

in alphabetical order, beginning with Alcindor. The court granted Alcindor’s

motion for acquittal on Counts 38 and 94, agreeing with him that the evidence on

those counts pointed only to the companies controlled by Alcindor and Graham

and did not show Alcindor’s individual involvement.5 The court granted a

judgment of acquittal for Cheryl Denny and James Moss on all counts after

concluding that there was insufficient evidence that their involvement in the

scheme was with knowledge of the fraud. The court denied the other defendants’

Rule 29 motions. And after reconsidering the matter, the court reversed its earlier

ruling that had granted Alcindor’s motion for acquittal on Counts 38 and 94.

Following the rulings on their Rule 29 motions, the defendants presented

some evidence and witnesses. The strategy that they pursued was to argue that

they acted in good faith and lacked any criminal intent because they had no idea

that what they were doing was criminal. That strategy may have been hampered

by the fact that none of the defendants took the stand. Nor did they present a

5
Both of those counts related to the August 2002 mortgage loan transaction on the house
at 105 Beracah Walk, a deal for which Graham had recruited Cortney Jackson to act as a straw
buyer. Count 38 charged mail fraud based on the mailing of the deed from the county clerk’s
office, and Count 94 charged money laundering for the wiring of loan proceeds to the account of
Bristol Homes, a company controlled by Alcindor and Graham.

22
united front. The defendants who were Hill’s associates and subordinates pointed

the finger at him, while Alcindor blamed Graham, and Hill claimed innocence and

reliance on the advice of counsel as a defense.

The jury was instructed on March 5, and it returned its verdict on March 14,

2007, following eight days of deliberations. The jury delivered split verdicts on

Farmer, Hill, Rector, and Dean Thomas, finding them guilty on some counts and

not guilty on others, while Alcindor, Brown, Laudermill, Powers, David Thomas,

and Van Mersbergen were found guilty on all counts.

III. The Severance Motions Issues

Before trial, Powers filed a motion for severance based on, among other

things, antagonistic defenses. Rector and Van Mersbergen also filed motions for

severance, contending that they should be tried separately because they were

charged with only one of the three conspiracies alleged in the indictment.

Although Alcindor made no motion of his own, he did adopt the severance

motions of co-defendants Rector, Dean Thomas, and James Moss. The Thomas

motion stated as its ground antagonistic defenses, while Moss’ motion contended

that because the evidence in his case was the same as that in Riley Graham’s case

he should be tried with Graham, who was likely to be granted a severance.6

6
The district court had indiciated that it was inclined to grant a motion for severance if
Graham should file one because Graham insisted on representing himself, which would have
23
We review a district court’s denial of a motion for severance only for an

abuse of discretion. United States v. Ramirez, 426 F.3d 1344, 1353 (11th Cir.

2005). In determining whether a joint trial is appropriate, the district court must

“balance the prejudice that a defendant may suffer from a joint trial, against the

public’s interest in judicial economy and efficiency.” United States v. Cross, 928

F.2d 1030, 1037 (11th Cir. 1991). We are “reluctant to reverse a district court’s

denial of severance, particularly in conspiracy cases, as generally persons who are

charged together should also be tried together.” United States v. Knowles, 66 F.3d

1146, 1158 (11th Cir. 1995) (quotation marks omitted). A district court’s denial

of a severance warrants reversal only if the defendant can demonstrate that the

denial was a “clear abuse of discretion” and that as a result he suffered

“compelling prejudice against which the district court could offer no protection.”

United States v. Walser, 3 F.3d 380, 385 (11th Cir. 1993). A defendant may show

that he suffered compelling prejudice by demonstrating “that the jury was unable

to sift through the evidence and make an individualized determination as to each

defendant.” United States v. Schlei, 122 F.3d 944, 984 (11th Cir. 1997) (quotation

marks omitted).

A. Rector

disrupted and slowed down the trial of the other defendants.
24
Rector contends that it was an abuse of discretion not to grant him a

severance because the indictment charged three separate and distinct conspiracies,

two of which did not implicate him. Because the other two conspiracies differed

in time, in some of the participants, and in factual particulars from the residential

mortgage fraud scheme charged against him in Count 19, he argues that his case

was improperly joined under Federal Rule of Criminal Procedure 8(b) and should

have been severed under Rule 14.

Rule 8(b) provides that: “The indictment or information may charge 2 or

more defendants if they are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions, constituting an offense or

offenses,” and the “defendants may be charged in one or more counts together or

separately,” but they “need not be charged in each count.” Fed. R. Crim. P. 8(b).

Although Rector was not charged with crimes in connection with two of the three

conspiracies, the Count 19 conspiracy with which he was charged is the big one.

He was actually charged in two-thirds of the counts (121 of 187) in the

indictment.7

In any event, “separate conspiracies with different memberships may still be

joined if they are part of the same series of acts or transactions.” United States v.

7
Rector was charged in Counts 19, 20–33, 34–48, 63–94, 129–187.
25
Weaver, 905 F.2d 1466, 1476 (11th Cir. 1990) (quotation marks and alteration

omitted). In this case the three conspiracies and the various substantive counts

arrayed around them were properly joined because each of the charges arose out of

Hill’s master scheme to defraud lenders through a common plan and design. The

fact that Hill used a different set of actors to perform the three acts of his play did

not transform it into three different plays.

Rector has also failed to demonstrate that he suffered any specific and

compelling prejudice from the court’s refusal to sever his case from that of his co-

defendants. Most of the evidence that was introduced at trial related to the 121

counts with which he was charged. But even if, as Rector asserts, there had been

an “enormous disparity” in the amount of evidence that related to other defendants

or charges compared with the evidence that related to him, “[a] defendant does not

suffer compelling prejudice, sufficient to mandate a severance, simply because

much of the evidence at trial is applicable only to co-defendants.” Schlei, 122

F.3d at 984 (quotation marks omitted). Although the district court, in the interests

of efficiency and judicial economy, understandably refused to give the jury a

curative instruction every time evidence irrelevant to the charges against Rector

was introduced, the court did give the jury a closing instruction that it must

26
consider the evidence separately as to each defendant with respect to each charge.8

We generally presume that jurors follow their instructions. Greer v. Miller, 483

U.S. 756, 766 n.8, 107 S.Ct. 3102, 3109 n.8 (1987); United States v. Stone, 9 F.3d

934, 938 (11th Cir. 1993). More specifically, we apply “the strong presumption . .

. that jurors are able to compartmentalize evidence by respecting limiting

instructions specifying the defendants against whom the evidence may be

considered.” United States v. Blankenship, 382 F.3d 1110, 1123 (11th Cir. 2004).

Even without presumptions, it is obvious that the jury followed the court’s

instructions in this case. After deliberating for eight days, the jury acquitted

Rector of 25 of the 121 charges against him, a result that demonstrates the care

with which the jury sifted through the evidence and considered the charges. See

United States v. Baker, 432 F.3d 1189, 1237 (11th Cir. 2005) (“In evaluating a

8
The district court gave the following instruction regarding the jury’s consideration of the
evidence as to each defendant:

Now, ladies and gentlemen, a separate crime or offense is charged against one
or more of the defendants in each count of the indictment. Each charge and the
evidence pertaining to it should be considered separately.

Also the case of each defendant should be considered separately and
individually. The fact that you may find any one or more of the defendants guilty or
not guilty of any of the offenses charged should not affect your verdict as to any
offense or any other defendant.

I caution you, members of the jury, that you are here to determine from the
evidence in this case whether each defendant is guilty or not guilty. Each defendant
is on trial only for the specific offense alleged in the indictment.

27
jury’s ability to sift through the evidence presented and to make individualized

interpretations of guilt, an appellate court may consider whether the jury issued a

‘split’ verdict, finding guilt as to some defendants or charges but not as to others.

Split verdicts weigh against a finding of undue ‘spillover.’”). The district court

did not abuse its discretion by denying Rector’s motion for a severance.

B. Van Mersbergen

Van Mersbergen contends that it was an abuse of discretion for the district

court not to grant his severance motion because he was prejudiced by the district

court’s efforts to effectively manage the unwieldy trial of 12 defendants. Before

voir dire, the district court determined that the government would be given 10

peremptory strikes and the defendants would be collectively allotted 16, and the

court permitted the defendants to determine the method they would use to exercise

those strikes. When the defendants failed to reach an agreement about that, the

court allotted one strike to each of the defendants and then distributed the

remaining four strikes to the defendants who would figure most prominently in the

trial: two to Hill, one to Farmer, and one to Rector. The district court then

devised a rotating method for exercising the strikes under which the defendants

would exercise two strikes and the government one until all of the strikes were

used.

28
The district court also decided that instead of permitting counsel for each of

the 12 defendants and an attorney representing the government to question

prospective jurors, the court would do the questioning. Counsel for each party

was allowed input into the questions that would be asked and also allowed to

suggest follow-up questions. Opening statements were limited to accommodate

the number of attorneys involved. Each defendant was given 15 minutes, except

for Powers and Farmer who were given 20 minutes each, Rector who was given 30

minutes, and Hill who was given 45 minutes.

Van Mersbergen argues that he was prejudiced as a result of the joint trial

because the large number of defendants resulted in his peremptory strikes being

reduced from the normal 10 to only 1; his counsel was not allowed to question

prospective jurors directly; his time for opening statements was reduced; he was

not permitted a full opportunity to further develop his Batson challenge; and one

witness was allowed to testify that when he heard Hill’s sales pitch (outside the

presence of Van Mersbergen), the witness had told Hill that what he was

describing was mortgage fraud.

Van Mersbergen did not properly raise all of these prejudice arguments in

the district court. He did adopt the motions of his co-defendants, but their

motions did not assert that a severance was necessary to avoid all of the types of

29
prejudice that Van Mersbergen now argues the district court should have

considered. Instead, the co-defendants’ motions that Van Mersbergen adopted

asserted only that a failure to sever would result in three types of prejudice:

reduction in the number of peremptory strikes each individual defendant was

allotted, curtailment of the jury voir dire that might otherwise occur, and a

reduction in the time given each defendant for opening statement.9

The district court did not abuse its discretion by concluding that the

interests of efficiency and judicial economy outweighed any prejudice that might

befall Van Mersbergen in a joint trial with his co-defendants. Although he was

not allowed to individually exercise the number of peremptory strikes that he

would have had if tried separately, Van Mersbergen and his co-defendants were

9
While our review probably should be limited to those three asserted types of prejudice,
we will address the other two here as well because Van Mersbergen’s contentions about them
clearly are meritless. The first is his argument that the district court’s failure to sever resulted in
his inability to further develop his Batson challenge because the court refused to hear further
argument from the defendants after it ruled that they had failed to make out a prima facie case of
discrimination based on the government’s use of its peremptory strikes. Absent a prima facie
case, a Batson claim fails, so the district court’s denial of the claim rises or falls on the
correctness of its prima facie case ruling, which we will discuss in Part IV B of this opinion.
There is no indication that the district court would have allowed any further argument on that
issue if there had been fewer defendants, and Van Mersbergen has not described any additional
arguments he would have made in the district court if he had been given the opportunity to do so.

Van Mersbergen’s other belated assertion of prejudice involves the testimony of Paul
McCoury, a loan officer, that when he had declined to participate in a similar scheme that Hill
had pitched to him in 1999, he told Hill that “what you’re describing to me is mortgage fraud.”
No one moved for a severance based on that testimony and, in any event, the district court
instructed the jury that it was to consider the evidence separately as to each defendant. See supra
n.8.
30
jointly given 16 strikes, which is more than the 10 strikes normally allotted to a

defendant or to jointly tried defendants under Rule 24(b)(2) of the Federal Rules

of Criminal Procedure. There is no constitutional right to peremptory strikes,

Rivera v. Illinois, ___, U.S. ___, 129 S.Ct. 1446, 1453 (2009), and the rotation-

sharing method used for the exercise of the defendants’ joint strikes in this case is

similar to one that we approved in United States v. Romero, 780 F.2d 981, 984

(11th Cir. 1986) (upholding a district court’s use of six rotating rounds of

peremptory challenges in a case involving multiple defendants).

As for the attorneys not being allowed to directly question the venire

members, a district court has discretion about how to conduct voir dire, including

whether to have counsel submit questions in writing. United States v. Brooks, 670

F.2d 148, 152 (11th Cir. 1982). The same goes for the amount of time allotted for

opening statements. United States v. Zielie, 734 F.2d 1447, 1455 (11th Cir.

1984), abrogated on other grounds by Bourjaily v. United States, 483 U.S. 171,

177–79, 107 S.Ct. 2775, 2779–80 (1987), as recognized in United States v.

Chestang, 849 F.2d 528, 531 (11th Cir. 1988). Van Mersbergen has failed to

convince us that the district court abused its discretion in taking the reasonable

steps it did to manage the difficulties presented by trial of a case of this magnitude,

31
considered either apart from or in the context of the denial of his motion for

severance.

Van Mersbergen also insists that because he was charged with only one of

the three conspiracies his due process rights were violated by the joint trial.

Although he was charged as part of the big Count 19 conspiracy, Van Mersbergen

was named in only 14 of the counts, which involved only three of the properties.

To the extent that he claims he was a victim of “spillover” prejudice or

transference of guilt, however, his claim fails for the same reason as Rector’s.

While there was less evidence relevant to the charges against Van Mersbergen

than to all of the charges against his co-defendants, that fact is not enough to

demonstrate compelling prejudice. If it were enough, in every joint trial the

defendant facing the fewest charges with the least amount of evidence would be

automatically entitled to a severance. Then, the next defendant left who faced the

fewest charges and least amount of evidence would be automatically entitled to a

severance, and so on, until only one or a few defendants remained in the trial.

That cannot be, and it is not, the law.

Even though Van Mersbergen was convicted on all 14 counts against him,

the fact that the jury returned split verdicts against some of his co-defendants

shows its ability to separate out the charges and evidence. A defendant cannot

32
demonstrate that he suffered compelling prejudice merely because the jury

ultimately concluded that he was guilty as charged. For all of these reasons, the

district court did not err by denying the severance motions of Van Mersbergen or

those of his co-defendants that he was deemed to have adopted.

C. Alcindor

Alcindor presents us with the novel theory that the district court abused its

discretion by refusing to sever him from the joint trial so that he could be tried

together with Graham, who had been granted a severance. Alcindor’s contention

is that it violated due process to try him separately from Graham, because that

permitted the government to advance in the two trials inconsistent positions

regarding the culpability of the two men for the fraud on Centrum Bank. There are

a number of reasons that contention does not entitle him to a new trial.

First, Alcindor failed to assert the potential for inconsistent prosecution

theories as a ground for a severance in the district court. He did not file his own

severance motion but instead adopted those of three of his co-defendants, none of

whom asserted that severance should be granted to permit the movant to be tried

with Graham in order to foreclose the possibility of the government pursuing

inconsistent theories of guilt. We will not hold that the district court abused its

discretion in failing to grant a severance on a ground that was never brought to its

33
attention. The best that Alcindor is entitled to is plain error review, and the failure

to grant a severance in these circumstances does not qualify as plain error by any

stretch of the imagination.

For one thing, Alcindor’s contention suffers from a fundamental flaw. The

last severance motion was denied in this case in December of 2006, the trial itself

was over in March of 2007, and Graham’s trial did not begin until February of

2008. At the time the district court denied the severance motions in this case,

neither Alcindor nor anyone else had suggested that the government might pursue

inconsistent theories of prosecution in Alcindor’s and Graham’s trials, and there

was no reason to believe that it would. We do not require that trial courts be

clairvoyant and grant motions on grounds not asserted because of events that have

not yet happened. Instead, they may treat as gospel the age-old advice to take “no

thought for the morrow: for the morrow shall take thought for the things of itself.

Sufficient unto the day is the evil thereof.” Matthew 6:34 (King James).

Even putting aside that fatal flaw in Alcindor’s position, and assuming for

present purposes that trial courts have a duty to foresee the future, it is not at all

plain that a defendant has a right to prevent the prosecution from using

inconsistent theories to prosecute two separately tried defendants charged with the

same crime. In Parker v. Singletary, 974 F.2d 1562, 1577–78 (11th Cir. 1992), we

34
rejected a claim that the prosecution violated due process by arguing at the

defendant’s trial that he was the triggerman while failing to disclose to him that it

had argued in the separated trials of his two co-defendants that each one of them

had been the triggerman. We stressed that the prosecution in those cases did not

use “necessarily contradictory evidence,” and “the only inconsistency was in the

state’s alternative arguments” about what inference the jury should draw from the

same evidence. Id. at 1578; see also Bradshaw v. Stumpf, 545 U.S. 175, 190, 125

S.Ct. 2398, 2409–10 (2005) (Thomas, J., concurring) (“This Court has never

hinted, much less held, that the Due Process Clause prevents a State from

prosecuting defendants based on inconsistent theories.”); Fotopoulos v. Sec.,

Dep’t of Corr., 516 F.3d 1229, 1234–35 (11th Cir. 2008) (concluding that a

holding that the presentation of inconsistent theories at the trial of two defendants

charged with the same crime did not violate due process was not contrary to

clearly established law).

Likewise, there was no “necessarily contradictory evidence” in the two trials

involved here. In the trial of this case, as Alcindor points out, the government

made little mention of Graham in its opening and closing statements, but that is

understandable since Graham was not one of the dozen defendants on trial. At no

time during this trial did the government ever take the position that Graham was

35
not guilty of the Centrum Bank fraud, and at no time during the later trial of

Graham did the government ever take the position that Alcindor was not guilty of

it. In fact, during the present trial several government witnesses testified to

Graham’s guilt, and during Graham’s trial several testified to Alcindor’s guilt.

The government’s consistent position in both trials was that both Alcindor and

Graham were guilty of the Centrum Bank fraud counts.

Alcindor’s argument that the government took inconsistent positions

focuses on the testimony of Quianna Wasler, Graham’s long-time girlfriend, in the

two trials. Alcindor claims that in this trial he was unable to succeed with his

defense of no criminal intent because government witnesses such as Wasler

testified to his personal participation in several components of the fraud against

Centrum Financial. According to Alcindor, later at Graham’s trial the government

used Wasler’s testimony to point the finger at Graham who had directed her to

participate in the fraud, and by doing that the government was making essentially

the same point that Alcindor had sought to establish in his trial — that Graham

manipulated Alcindor and others into becoming unwitting participants in his

fraudulent scheme.

The fact is, however, that Wasler testified consistently in both trials. She

told both juries that: Graham directed her to falsify pay stubs and W-2 forms in

36
the names of straw buyers for the Centrum loan package; she and Graham

“inflated” items on Alcindor’s personal financial statement; and she and Graham

falsified cashier’s checks made out to Alcindor and the Alcindor-Williams Group.

Wasler’s testimony at both trials implicated Alcindor and Graham together in the

fraud on Centrum. She testified that both of them were present at the closings for

the straw purchases of Cascade lots, and that they both assisted three straw buyers

in falsifying the purchases of pre-existing homes in order to finance the purchase

of the Cascade subdivision by the Alcindor-Williams Group.

Other matters that Alcindor considers stark inconsistencies between the

evidence at the two trials are easily understood in the context of the separate trials,

the different defendants, and the inevitable difference in questions asked of the

witnesses. How far Alcindor strains to find some differences is apparent from his

use of testimony about whether both he and Graham were present at some of the

closings. For example, in this trial of Alcindor the government offered testimony

that he and Graham were both present at the closings involving the Alcindor-

Williams Group, thus undermining Alcindor’s defense that he was out of the

country at those times. He argues that the testimony he was present at those

closings is inconsistent with what Michael Key10 “made clear” in his testimony at

10
Key was a former closing attorney who testified for the government at Graham’s trial
about his own involvement in mortgage fraud transactions and how the fraud typically worked.
37
Graham’s trial, which is that only Graham was present at the closings on behalf of

the Alcindor-Williams Group. The record shows, however, that Key actually

admitted during his testimony at Graham’s trial that in addition to Graham “[t]here

could have been others” present.

The government’s consistent theory was that both Alcindor and Graham

were guilty to the gills of the Centrum Bank fraud charges against them, and the

evidence at both trials supported that position. We cannot say, to borrow a few

key words from an Eighth Circuit opinion, that the government used “inherently

factually contradictory theories” and changed the color of its stripes from one trial

to the next by advancing an “inconsistency . . . at the core of the prosecutor’s

[separate] cases against defendants for the same crime.” Smith v. Groose, 205

F.3d 1045, 1052 (8th Cir. 2000). Far from it.

So, Alcindor loses on the severance issue because he failed to raise in the

district court the inconsistent prosecution theories and evidence ground that he

now asserts; because we do not require district courts to foretell that the

prosecution theory or evidence in a future trial of a co-defendant will be different

from what it is in the trial then before the court; because it is not plain that

inconsistent prosecution theories and evidence would violate a defendant’s rights;

and because, even if they would, Alcindor has not shown inconsistency here.

38
D. Powers

Powers, who acted as a mortgage broker in some of the transactions,

contends that it was an abuse of discretion for the district court not to grant his

motion for a severance on the ground of antagonistic defenses. Part of his defense

was that he was an innocent participant who had been duped by the straw buyers,

while the defense of the straw buyer defendants was that they themselves had been

unwitting participants which, if true, would rule out their duping Powers or

anyone else. After the court restricted a portion of Powers’ cross-examination of

Wayne Jenkins, he renewed his motion for severance, and he was joined by

Denny, one of the straw buyer defendants.

The law is that defendants indicted together generally should be tried

together; the fact that a defendant’s chances of acquittal are materially better in

separate trials is not enough; a defendant is not entitled to a severance merely

because of antagonistic or mutually exclusive defenses; and a defendant must

show that the joint trial caused him such compelling prejudice that he was

deprived of a fair trial. Zafiro v. United States, 506 U.S. 534, 537–41, 113 S.Ct.

933, 937–39 (1993); see also Blankenship, 382 F.3d at 1125 (“The Supreme Court

has held that co-defendants do not suffer prejudice simply because one

co-defendant’s defense directly inculpates another, or it is logically impossible for

39
a jury to believe both co-defendants’ defenses.”). Powers clearly has not made

that showing. As we said of the two appellants in the Blankenship case, “[a]side

from pointing out their mutually antagonistic defenses, however, neither . . . ha[s]

shown how the joint trial prejudiced them in any other legally cognizable way.”

Id. There was no abuse of discretion in denying Powers’ motion for a severance.

IV. Jury Selection Issues

Van Mersbergen contends that the district court erred by not permitting the

prospective jurors to be asked during voir dire about each of the witnesses who

would testify during the trial.11 All of the appellants contend that the district court

erred in not granting their Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712

(1986), objection to the government’s use of its peremptory strikes.

A. Failure to Ask the Venire About All Government Witnesses

Jury selection took place during two days. As part of its effort to streamline

and effectively manage a trial involving so many defendants and attorneys, the

district court decided that members of the jury venire would be asked about their

familiarity with only the most important witnesses. To that end, the court directed

11
His contention and arguments about this are adopted by five other appellants: Brown,
Farmer, Hill, Laudermill, and Powers.

David Thomas also attempts to adopt this argument, but he cannot do so. He entered into
a post-conviction agreement with the government in which he received the benefit of a U.S.S.G.
§ 5K1.1 substantial assistance motion. In return, Thomas agreed to and did waive his right to
appeal issues relating to his conviction.
40
both the prosecution and the defendants to submit lists of each side’s 10 most

important witnesses to be published to the venire instead of the names of the 185

or so potential witnesses on their lists.

Perhaps as a result, the prospective jurors were not asked if they knew a

government witness named Brenda Stewart.12 Early in the trial Stewart testified

that she and her brother had negotiated with Hill for her brother to buy one of the

completed houses in the Cascade subdivision and for a new house to be built for

herself and her mother on one of the empty lots. Before those negotiations could

be completed, however, Stewart shifted to dealing with Alcindor and Graham who

had purchased the Cascade subdivision from Hill through the Alcindor-Williams

Group. Stewart testified that during the course of their dealings she and her

brother paid $25,000 in earnest money to Hill and another $7,500 to the Alcindor-

Williams Group, money which she was never able to recover after she learned that

neither she nor her brother would receive the houses they had contracted to buy.

Shortly after Stewart was called to testify, the court interrupted the

government’s examination to ask Stewart if she were acquainted with Rosemary

Burton. Burton was one of the alternate jurors, and she had apparently alerted a

court security officer that she knew Stewart. Defense counsel for Farmer and

12
We say “perhaps as a result” because we are unable to locate the name “Brenda
Stewart” on the lists of potential witnesses contained in the record.
41
Brown complained that if Stewart’s relationship with Burton had been revealed

earlier during voir dire, the defendants could have used a peremptory strike to

remove her. The court questioned Burton outside the presence of the other jurors,

but in open court, regarding her relationship with Stewart. Burton stated that they

worked in different departments and on different floors of the Social Security

Administration, and that they were acquaintances who had interacted only on a

limited basis. Burton assured the court that she would not give any additional

weight to Stewart’s testimony and that knowing Stewart would have no effect on

her ability to serve as a fair and impartial juror.

The court found that Burton could be fair and impartial, and no defendant

asked that she be removed from the jury. Nevertheless, Van Mersbergen contends

that the court empaneled a jury in violation of his constitutional right to a fair trial

by seating Burton, who he argues should have been struck for cause and would

have been if the court had permitted the venire to be asked about all of the names

on the witness list. Van Mersbergen further contends that the district court

abridged his right to exercise his peremptory challenges by failing to show the jury

a complete list of witnesses. He says that if the district court had done so, the

relationship between Burton and Stewart would have come to light, and Van

Mersbergen would have used one of his peremptory challenges to strike Burton

42
from the jury. Alternatively, he argues that even if the empaneled jury was fair

and impartial, reversible error occurred when the government during its closing

arguments mentioned Stewart, but not other “investors,” by name. Actually, what

the government did in its closing was mention Stewart’s name along with the

names of all of those who were involved in the Cascade/Centrum fraud when it

was discussing the details of that fraud.

“The method of conducting the voir dire is left to the sound discretion of the

trial court and will be upheld unless an abuse of discretion is found.” United

States v. Vera, 701 F.2d 1349, 1355 (11th Cir. 1983). It is well established that

“[t]he voir dire conducted by the trial court need only provide reasonable

assurance that prejudice will be discovered if present.” Id. (citation and quotation

marks omitted). Any error involving Burton’s service on the jury is subject to

review only for plain error because no defendant objected to her continued service,

asked that she be questioned further, or took issue with the court’s finding that she

could be fair and impartial. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.

2005) (“When a defendant fails to object to an error before the district court, we

review the argument for plain error.”).

Burton’s continued presence on the jury could not have been error — much

less plain error — because she did not sit on the final jury that rendered the verdict

43
in this case. Even if Van Mersbergen could convince us that Burton was biased

and should have been excluded from the jury, he cannot prove that he was

prejudiced by the district court’s failure to exclude her because Burton was an

alternate juror who never participated in the jury’s deliberations.13 She could not

have had any effect on the verdicts in the case. Furthermore, Van Mersbergen has

failed to cite to any authority demonstrating that a district court abuses its

discretion by failing to publish the government’s complete list of witnesses to the

venire. We are satisfied that the district court did not abuse its discretion by

disclosing to the venire a list that included 41 corporate victims, 8 affected

condominium complexes, and the government’s 10 most important witnesses, but

failed to include Burton.

Van Mersbergen’s contention that the court’s failure to ask the venire about

all of the witnesses, including Stewart, abridged his right to exercise a peremptory

strike against Burton fails for similar reasons. Since Burton did not serve on the

jury that convicted him, Van Mersbergen was not harmed by the fact that he did

not strike her from the jury. Instead, he gained the opportunity to use that strike

against another venire member.

B. The Batson Issue

13
When the jury was polled after rendering its verdict, Burton’s name was not called.
44
All of the appellants contend that the government improperly used its

peremptory strikes to remove black jurors on the basis of their race, and that the

district court erred in denying their challenge of the government’s strikes under

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986). That decision, of course,

established that the Equal Protection Clause forbids the exercise of peremptory

jury strikes on the basis of race. In Batson and its progeny, the Supreme Court

laid out a three-part inquiry for deciding whether a party’s strikes were motivated

by race. Id. at 97–98, 106 S.Ct. at 1723–24; see also Snyder v. Louisiana, 552

U.S. 472, 476–77, 128 S.Ct. 1203, 1207 (2008), Johnson v. California, 545 U.S.

162, 168, 125 S.Ct. 2410, 2416 (2005).

First, the district court must determine whether the party challenging the

strikes has established a prima facie case by showing facts sufficient to support an

inference of discriminatory motive. Johnson, 545 U.S. at 170, 125 S.Ct. at 2417;

United States v. Ochoa-Vasquez, 428 F.3d 1015, 1038 (11th Cir. 2005). If a prima

facie showing is made, Batson’s second step requires the striking party to offer a

race-neutral explanation for its strikes. Ochoa-Vasquez, 428 F.3d at 1038. The

reason given for the peremptory strike need not be a good reason. It can be an

irrational, “silly or superstitious” reason, as long as it is not a discriminatory

reason. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995).

45
However, the ultimate burden of persuasion remains with the party challenging the

strike as discriminatory. Id.; Ochoa-Vasquez, 428 F.3d at 1038. In the third and

final stage, the district court must evaluate the persuasiveness of the proffered

reason and determine whether, considering all relevant circumstances, the objector

has carried the burden of proving discrimination. Ochoa-Vasquez, 428 F.3d at

1039.

In this case after the defendants made their Batson objections, the district

court initially had the government state some reasons for its peremptory strikes

against black venire members, but the court cut that process short by not allowing

the appellants to respond fully to the stated reasons. The court denied the Batson

claim both on the ground that there was no prima facie case and also on the ground

that the government’s explanations for its strikes were “legitimate and non-

discriminatory.” Any error in not allowing the defendants to respond to the stated

reasons is purely academic if the court’s finding that there was no prima facie case

stands. See Ochoa-Vasquez, 428 F.3d at 1038 (“Our precedent makes clear that

‘the establishment of a prima facie case is an absolute precondition to further

inquiry into the motivation behind the challenged strike.”) (quoting Central

Alabama Fair Housing Ctr. v. Lowder Realty Co., 236 F.3d 629, 636 (11th Cir.

2000)); Lowder, 236 F.3d at 636 (“[T]he threshold task in considering a Batson

46
challenge, for a district court as well as this Court, is to determine whether a prima

facie case was established. If the answer is no, then the inquiry ceases, and the

challenge should be denied.”).

For standard of review purposes, “[t]he Batson issue before us turns largely

on an evaluation of credibility.” Felkner v. Jackson, ___ U.S. ___, 131 S.Ct.

1305, 1307 (2011) (quotation marks omitted). Accordingly, “[t]he trial court’s

determination is entitled to great deference, and must be sustained unless it is

clearly erroneous.” Id. (citations and quotation marks omitted); see also United

States v. Walker, 490 F.3d 1282, 1292 (11th Cir. 2007) (“We give great deference

to the district court’s determination of a prima facie case.”); Ochoa-Vasquez, 428

F.3d 1015 at 1039 (“We give great deference to a district court’s finding of

whether a prima facie case of impermissible discrimination has been

established.”); United States v. Allen-Brown, 243 F.3d 1293, 1298 (11th Cir.

2001) (“[a]pplying the highly deferential standard of review required by our

precedent” to the prima facie case determination of the district court); King v.

Moore, 196 F.3d 1327, 1334 (11th Cir. 1999) (whether a prima facie showing has

been made is “treated as a question of fact to be decided by the trial judge”);

United States v. Stewart, 65 F.3d 918, 923 (11th Cir. 1995) (“[W]e give great

deference to the district court’s finding as to the existence of a prima facie case.”);

47
United States v. David, 803 F.2d 1567, 1571 (11th Cir. 1986) (“The question [of

whether a prima facie case has been established] is one of fact.”).

After some venire members were excused for hardship and others were

removed for cause, there remained 54 from which the jury was to be selected. One

group of 38 venire members was used to select the first 12 jurors, while the other

group of 16 was used to select six alternate jurors. However helpful that division

may have been for administrative purposes, the law of this circuit is that in

determining whether a prima facie case has been established the peremptory

strikes used to select alternates are to be considered together with those used to

select the initial 12 jurors. Ochoa-Vasquez, 428 F.3d at 1045 n.41 (“In

determining whether a statistical pattern of discrimination exists, our precedent

looks to the total number of peremptory strikes available to the striker, including

the peremptory strikes against alternates.”); see also id. at 1046 (looking to how

many of the jurors and alternates were Hispanic); Johnson v. California, 545 U.S.

162, 164, 125 S.Ct. 2410, 2414 (2005) (considering the racial composition of

“[t]he resulting jury, including alternates”); United States v. Campa, 529 F.3d 980,

998 (11th Cir. 2008) (considering the fact that “the jury included three black jurors

and an alternate black juror”) (emphasis added); United States v. Allison, 908 F.2d

1531, 1538 (11th Cir. 1990) (including alternate jurors in the statistical analysis

48
for prima facie case purposes); United States v. Dennis, 804 F.2d 1208, 1211 (11th

Cir. 1986) (considering “the fact that the prosecutor used three of the four

peremptory challenges he exercised to strike blacks from the panel of potential

jurors and alternates”) (emphasis added).

Of the total group of 54 venire members from which the jurors and

alternates were struck, 22 (41%) were black, 30 (56%) were white, and 2 (4%)

were Asian. The government had, and it exercised, 14 peremptory strikes; it used

9 (64%) of them against black venire members. The final jury of 18 (12 plus six

alternates) included nine (50%) blacks. If the government had exercised all of the

strikes it could against black venire members, the resulting 18 jurors and alternates

would have included only four (22%) blacks.

Under our precedent these statistics, without more, do not establish a prima

facie case. In United States v. Campa, 529 F.3d 980, 989 (11th Cir. 2008), the

government was allotted 11 peremptory strikes and used 9 of them. Seven of

those nine strikes (78%) were used against blacks. Id. The 16 jurors (there were

four alternates) who were selected included four (25%) blacks. The district court

had found a prima facie case, but we overturned that finding. Id. at 998. Our

decision that a prima facie case had not been established was based primarily on

the fact that “the government did not attempt to exclude as many black persons as

49
it could from the jury,” and the jury with alternates included four blacks. Id. at

998; see also Lowder Realty Co., 236 F.3d at 638 (“This Court has held that the

unchallenged presence of jurors of a particular race on a jury substantially

weakens the basis for a prima facie case of discrimination in the peremptory

striking of jurors of that race.”); United States v. Puentes, 50 F.3d 1567, 1578

(11th Cir.1995) (“Although the presence of African-American jurors does not

dispose of an allegation of race-based peremptory challenges, it is a significant

factor tending to prove the paucity of the claim.”); United States v. Allison, 908

F.2d 1531, 1537 (11th Cir. 1990) (reasoning that the unchallenged presence of

blacks on a jury undercuts the inference of impermissible discrimination that

might arise solely from striking other black prospective jurors).

The case for finding no prima facie case is even stronger here than it was in

Campa. Here the government used a smaller percentage of its strikes against

blacks than in Campa (64% versus 78%), the number of black jurors it could have

but did not exclude was greater than in Campa (five versus two), and there were

more blacks left among the jurors who were selected than in Campa (nine or 50%

versus four or 16%). See also Ochoa-Vasquez, 428 F.3d at 1045–46 (no prima

facie case where 44 of the 82 (54%) of the venire members were Hispanic, the

government used 5 of its 9 (56%) strikes against Hispanics, and 6 of the 17 (35%)

50
jurors and alternates selected to serve were Hispanic); Dennis, 804 F.2d at 1209,

1211 (affirming finding of no prima facie case where “the government did not

attempt to exclude all blacks, or as many blacks as it could, from the jury,” and

“the unchallenged presence of two blacks on the jury undercuts any inference of

impermissible discrimination that might be argued to arise from the fact that the

prosecutor used three of the four peremptory challenges [the government]

exercised to strike blacks from the panel of potential jurors or alternates”).

Of course, the prima facie case determination is not to be based on numbers

alone but is to be made in light of the totality of the circumstances. Johnson v.

California, 545 U.S. 162, 168, 125 S.Ct. 2410, 2416 (2005) (the defendant must

make out a prima facie case “by showing that the totality of the relevant facts

gives rise to an inference of discriminatory purpose”) (quoting Batson, 476 U.S. at

93–94, 106 S.Ct. at 1712); Ochoa-Vasquez, 428 F.3d at 1044 (in order to

determine whether a prima facie case has been established “courts must consider

all relevant circumstances”). In this case, however, there is no circumstance other

than numbers to support an inference of discrimination.

The subject matter of the case can sometimes suggest a motive for

discriminatory use of peremptory strikes. Ochoa-Vasquez, 428 F.3d at 1045 n.39

(“In some Batson claims, the subject matter of the case may be relevant if it is

51
racially or ethnically sensitive.”). For example, in United States v. Stewart, 65

F.3d 918 (11th Cir. 1995), we noted that “Batson teaches that a prima facie case

determination should include an examination of all relevant circumstances,” and

“[a]mong the relevant circumstances is the subject matter of the case being tried.”

Id. at 925 (quotation marks omitted). In Stewart, where the challenge was to the

defendants’ use of peremptory strikes against white venire members, the subject

matter weighed heavily in favor of a prima facie case finding because the

defendants were Ku Klux Klan members who were being prosecuted for a racially

motivated hate crime against blacks. Id. at 921–22, 925–26. Another example is

Johnson, where the Supreme Court determined that the defendant had established

a prima facie case that the prosecution had used its strikes in a racially

discriminatory way against blacks. 545 U.S. at 173, 125 S.Ct. at 2419. In the

course of making that determination, the Court quoted with approval a lower

court’s statement that the fact “a black defendant was ‘charged with killing his

White girlfriend’s child’” was a “highly relevant” circumstance. Id. at 167, 125

S.Ct. at 2415 (quotation marks omitted). Here, by contrast, the subject matter of

the case is not the least bit racial. This is a mortgage fraud case in which the

victims are colorless institutions. The only relevant color is the color of money,

and that shade of green is race neutral.

52
The fact that the defendants are the same race as the struck jurors is another

circumstance that can be relevant to the prima facie case question. See Bui v.

Haley, 321 F.3d 1304, 1318 (11th Cir. 2003) (though not dispositive, it may be

“noteworthy” for Batson purposes whether defendants or victims are of same race

as excluded jurors); Allen-Brown, 243 F.3d at 1298 (race of defendants can be

considered as relevant circumstances in evaluating Batson challenge). In this case,

however, most of the defendants being tried were not of the same race as the jurors

against whom the challenged strikes were made. Nine of the 12 defendants (75%)

were white, as were 11 of the 13 (85%) defense lawyers at counsel table. Because

the predominant race of the defendants and their attorneys could not have supplied

a motive for the government to remove blacks from the jury, it does not weigh in

favor of a prima facie case. The appellants have not suggested any other

circumstance that points toward the existence of a prima facie case of a

Batson violation.

For these reasons, and giving the district court’s finding the deference that it

is due, we cannot conclude the court erred in determining that the defendants

failed to establish a prima facie case that the government used its peremptory

strikes in a racially discriminatory manner.

V. Evidentiary Issues

53
A. Lay Opinion Testimony

At trial, the district court permitted several representatives of victim lending

institutions, all of whom were involved in mortgage and loan approval for their

respective companies, to testify about whether the disclosure of misrepresentations

in some of the fraudulent loan applications would have had any effect on their

decision to approve the mortgage or loan. Farmer objected to this line of

questioning several times, and he now contends that the district court erred by

admitting what he characterizes as expert testimony without following the proper

procedures for qualifying an expert witness or for disclosing the contents of the

expert’s testimony as required by Rule 16(g) of the Federal Rules of Criminal

Procedure.14 We review a lower court’s decision to admit evidence only for an

abuse of discretion. United States v. Kennard, 472 F.3d 851, 854 (11th Cir. 2006).

According to Federal Rule of Evidence 701, a lay witness may offer

opinions that are: “(a) rationally based on the perception of the witness, (b)

helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue, and (c) not based on scientific, technical, or other specialized

14
Brown, Hill, Powers, and Van Mersbergen adopt this argument. David Thomas
attempts to do so but cannot because he waived his right to appeal his conviction. See supra,
n.11.

54
knowledge within the scope of Rule 702.”15 Fed. R. Evid. 701. The Advisory

Committee explained that the purpose of the 2000 amendment that added

subsection (c) to Rule 701 was “to eliminate the risk that the reliability

requirements set forth in Rule 702 will be evaded through the simple expedient of

proffering an expert in lay witness clothing.” Fed. R. Evid. 701 Advisory Comm.

Notes. Farmer argues that the district court permitted the government to disguise

its experts in lay witness clothing by allowing witnesses from lending institutions

to answer the government’s hypothetical questions about their lending decisions

despite the fact that the hallmark of an expert witness is his ability to answer

hypothetical questions. See United States v. Henderson, 409 F.3d 1293, 1300

(11th Cir. 2005).

As the Advisory Committee made clear and as we have held, however, Rule

701 does not prohibit lay witnesses from testifying based on particularized

knowledge gained from their own personal experiences. In Tampa Bay

15
Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient facts or
data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.

Fed. R. Evid. 702.
55
Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213 (11th Cir.

2003), which the district court relied upon, we addressed whether the amended

version of Rule 701 permits an officer or employee of a corporation to offer lay

opinion testimony about industry standards and pricing. We concluded that the

district court had not abused its discretion in permitting officers and employees to

testify as lay witnesses about the reasonableness of their corporation’s pricing in

light of industry standards. Our reasoning was that their testimony was “based

upon their particularized knowledge garnered from years of experience within the

field.” Id. at 1223. As we noted in Tampa Bay, the Advisory Committee notes to

the 2000 amendments specifically carve out the lay opinion testimony of business

owners or officers from subsection (c)’s exclusion, and explain that:

most courts have permitted [owners and officers] to testify . . . without
the necessity of qualifying the witness as an . . . expert. Such opinion
testimony is admitted not because of experience, training or specialized
knowledge within the realm of an expert, but because of the
particularized knowledge that the witness has by virtue of his or her
position in the business. The amendment does not purport to change
this analysis.

Tampa Bay, 320 F.3d at 1222 (quoting Fed. R. Evid. 701 Advisory Comm. Notes).

Farmer also complains that the lender representatives should not have been

allowed to testify about what their institutions would have done had they known

that several representations in various loan applications were falsified. He argues

56
that “the ability to answer hypothetical questions is the essential difference

between expert and lay witnesses.” Henderson, 409 F.3d at 1300 (quotation marks

and alteration omitted). As the Advisory Committee’s notes indicate, however,

“[t]he amendment does not distinguish between expert and lay witnesses, but

rather between expert and lay testimony.” Fed. R. Evid. 701 Advisory Comm.

Notes. And we held in Tampa Bay that the opinion testimony of a business owner

or officer about the manner in which that company conducts its business, which is

based on particularized knowledge she gained in her position, is properly treated

as lay testimony. Admission of that testimony does not require that she be

qualified as an expert under Rule 702.

Most of the lay witnesses who answered hypothetical questions in this case

did not do so based on any “scientific, technical or other specialized knowledge,”

but instead based their testimony on their personal experiences as officers of

financial institutions with knowledge of their companies’ policies and of the

specific transactions at issue. Besides, it does not take any specialized or technical

knowledge to realize that lending institutions would be reluctant to approve a loan

application if they knew that it contained false statements about material facts.

Because of that, there is little or no danger that lay witness testimony was used to

evade the reliability requirements of Rule 702. For these reasons, the district court

57
did not abuse its discretion by permitting the witnesses who had personally dealt

with the fraudulent loan transactions at issue to respond to the government’s

questions about what would have happened if the facts had been different. See

United States v. Munoz-Franco, 487 F.3d 25, 35–36 (1st Cir. 2007) (permitting a

bank vice president to offer his opinion that the bank’s loan classifications would

have been improper based on certain facts because his opinion “was based on

knowledge of [the bank’s] practices that he acquired during his employment

there”).

As for the witnesses who were not personally involved with the transactions

at issue, any error in admitting their testimony was harmless. United States v.

Frazier, 387 F.3d 1244, 1266 n.20 (11th Cir. 2004) (en banc) (requiring reversal in

a criminal case only if erroneously admitted evidence “[had] a substantial

influence on the outcome of a case or [left] grave doubt as to whether they affected

the outcome of a case”) (quotation marks omitted). Several factors weigh against

a conclusion that the erroneous admission of these witnesses’ opinions had a

substantial impact on the outcome of this case. One is that other testimony to

exactly the same effect by representatives of other institutions with personal

knowledge of and involvement in similar transactions was properly admitted, as

we have just discussed. All of the appellants who now claim that the district court

58
erred, with the exception of Farmer and Brown, invited similar testimony from

other identically situated lay witnesses by entering into stipulations about how

those witnesses would testify. Farmer and the other appellants failed to object to

the same type of testimony by other lay witnesses. And the court explained to the

jury that it should consider witnesses’ answers to hypothetical questions only to

the extent that the facts assumed in the hypothetical questions were proven. In

light of those considerations and the overwhelming amount of other evidence

presented at trial, we are not left with a grave doubt that the outcome was affected

by any error in admitting the testimony. Instead, we are convinced that any such

error was harmless.

B. Summary Charts

Brown contends that she and her co-defendants were subjected to a “trial by

charts” in violation of their right to a fair trial because the district court permitted

the government to introduce summary charts and to introduce testimony that

explained and summarized the contents of the charts without qualifying the

witnesses as experts.16 See United States v. Richardson, 233 F.3d 1285 (11th Cir.

2000). Permitting the use of summary evidentiary charts is within the discretion

16
Farmer, Hill, Laudermill, Powers, and Van Mersbergen adopt this argument. David
Thomas attempts to do so but cannot because he waived his right to appeal his conviction. See
supra, n.11.

59
of the district court, id. at 1293, but Laudermill argues that the district court

abused its discretion because the charts were misleading, wasted time, and

violated various rules of evidence.

The government complied with the requirements of Rule 1006 by making

the summary charts and related exhibits available to defense counsel before trial.

There was initially some dispute about that, but it was resolved when the

government used a copy service to scan all of the exhibits into electronic form and

made them available to defense counsel before trial. Even if the charts were

improperly admitted, Brown and the other appellants have failed to demonstrate

how they were prejudiced by the error. All of the defendants had access to the

government’s documentary evidence months before trial and to the marked and

numbered exhibits themselves before trial, the underlying documents were

admitted into evidence before the summaries, and each of the defendants had an

opportunity to cross-examine the government’s witnesses about the summaries.

Not only that, but Brown and her co-defendants also used the government’s

charts at various times during the trial — during direct examination, cross-

examination, and in their closing arguments. Finally, the district court gave

several cautionary instructions regarding the use of the summary charts, and we

presume that the jury followed those instructions. United States v. Stone, 9 F.3d

60
934, 938 (11th Cir. 1993) (“The crucial assumption underlying the system of trial

by jury is that juries will follow the instructions given them by the trial judge.”

(quotation omitted)).

C. Amount of Loss

We also reject Laudermill’s contention that the district court committed

reversible error by admitting during the trial evidence about the amount of loss

that resulted from the fraud and money laundering.17 Laudermill argues that while

the fact of loss had to be proven, the amount of the loss was irrelevant, and the

prejudicial effect of the amount of the loss substantially outweighed any probative

value it had.

The district court did not abuse its discretion. The amount of the loss, of

course, demonstrates the fact of loss. Beyond that, the victims’ loss is related

enough to the defendants’ gain to bear on the motive that the defendants had for

committing the fraud. “[M]otive is always relevant in a criminal case, even if it is

not an element of the crime.” United States v. Sriyuth, 98 F.3d 739, 747 n.12 (3d

Cir. 1996). And with financial crimes, the more money, the more motive. We are

not surprised that Laudermill has been unable to cite a single decision from any

17
Brown, Farmer, Hill, Powers, and Van Mersbergen adopt this argument. David
Thomas attempts to do so but cannot because he waived his right to appeal his conviction. See
supra, n.11.

61
court holding that the amount of loss inflicted on the victim by the defendant’s

crime is inadmissible under Rule 401, Rule 403, or for any other reason.

D. Alcindor’s Evidence About Criminal Intent

Alcindor contends that the district court abused its discretion by excluding

as irrelevant evidence that he says would have helped show that he was merely

used by Graham. The proffered evidence was that others believed that Graham

had taken advantage of them. What others felt about their own roles is not

probative of whether Alcindor himself lacked criminal intent, and, in any event,

the jury did hear testimony from some other witnesses that they felt used by

Graham.

Alcindor also contends that it was an abuse of discretion for the district court

to exclude evidence in the form of his “employee service record,” which he

asserted would show “where he was working, what he was making, [and] how

much he gave up” in order to invest with Graham in the Cascade development.

Alcindor’s position was that his proffered evidence about what he had given up to

invest with Graham would show that he lacked any intent to defraud, but that

evidence does not make it any less likely that Alcindor did not intend to

participate in the fraudulent activities. Alcindor’s investment in the scheme

reflects a belief that the likelihood and amount of reward was worth what he was

62
risking, but that says nothing about whether he believed the scheme was

legitimate. In fact, the more of his own money Alcindor invested in the

undertaking, the more motive he had to engage in any action necessary to prevent

losing it.

In any event, even if the court should have permitted Alcindor to introduce

that evidence, we are convinced that he was not prejudiced by its exclusion.

Alcindor’s brothers were allowed to testify that they had to wire him money after

he had expended his savings, retirement, and 401(k) funds on the Cascade project,

and Alcindor made arguments based on that testimony in his closing.

E. Powers’ Brady Claim

Powers contends that the government improperly withheld evidence in

violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The evidence

in question is an e-mail addressed to Rector from a sender Powers identified as

“Sanski.” Powers claims that name was being used by Alex Rybinski, who is the

brother of Wayne Rybinski, a straw buyer. The e-mail, dated August 15, 2001, to

Rector from “Sanski” stated:

I need to know if you can lend my brother $15,000.00? he is willing to
pay another $1,500.00. Powers sent him papers for seven units. E-mail
or call. thanks for your time. A.W.

63
Powers claims that the e-mail was favorable to his defense because Wayne

Rybinkski testified during trial that Powers had directed him to contact Rector in

order to request a short-term loan that would inflate Rybinski’s bank account so

that he would have enough of a balance in it to qualify for a loan in a straw

transaction. Powers argues that the e-mail contradicts that testimony. When

viewed in the context of other evidence introduced at trial regarding the Rybinski

straw transactions, however, the e-mail is consistent with the testimony of Wayne

Rybinski.

The evidence showed that Rybinski engaged in multiple transactions to

purchase condominiums, each of which required him to have $15,000 in his bank

account in order to acquire the loans necessary to complete the purchases. In May

2001, in order to complete the first transaction Rybinski combined some of his

own money with money he had borrowed from family members. Rybinski

testified that after that transaction and before his next set of purchases, Powers had

again informed him that he would need a balance of $15,000 in the bank. Because

Rybinksi did not have the funds, Powers instructed him to call Rector. Bank

records show a $15,000 wire transfer from Rector to Rybinski on August 2, 2001.

Rybinski testified that Rector called him after the first wire transfer to tell him that

the loan transactions were not ready, and as a result, Rybinski returned the money

64
by wire transfer on August 6. Bank records also show a second $15,000 wire

transfer from Rector to Rybinski on August 20, which was after the loans were

ready to be completed, and they show that Rybinski returned the money to Rector

by wire transfer on August 23.

The email in question was dated August 15, which was after the first set of

wire transfers but before the second. That is consistent with the statement in the e-

mail that “he is willing to pay another $1,500.00.” Because of its timing the e-

mail does not contradict Rybinski’s testimony that he contacted Rector to request a

loan at the suggestion of Powers. Powers’ Brady claim focuses on Rybinski’s

testimony about his request for a loan from Rector that generated the first set of

wire transfers. Those were completed before the email in question was sent on

August 15. The e-mail referred to the second set of wire transfers.

Because the e-mail was not inconsistent with Rybinski’s testimony, it could

not have been used to impeach his testimony against Powers. For that reason

evidence of it was neither favorable to Powers nor material to the result of the

trial. There was no Brady violation. See Strickler v. Greene, 527 U.S. 263, 290,

119 S.Ct. 1936, 1952 (1999); Allen v. Sec’y, Florida Dept. of Corr., 611 F.3d 740,

745–46 (11th Cir. 2010); Hammond v. Hall, 586 F.3d 1289, 1305 (11th Cir. 2009).

VI. Miscellaneous Trial Issues

65
A. Antagonism Toward the Defendants

Van Mersbergen contends that the district court abused its discretion and

violated his Fifth and Sixth Amendment rights in the manner in which the court

conducted the trial, specifically by making critical and “harsh” statements to some

of the defense counsel at trial.18 Out of the nineteen exchanges between the court

and defense counsel that are cited by Van Mersbergen, however, two occurred at

pretrial conferences, eleven occurred during the trial but outside the presence of

the jury, and only six occurred within the presence of the jury. “Because a clear

effect on the jury is required to reverse for comment by the trial judge,” we will

only consider the trial court’s comments that were made in the presence of the

jury. United States v. Palma, 511 F.3d 1311, 1317 (11th Cir. 2008) (quotation

marks omitted).

A trial court is required to “exercise reasonable control over the mode and

order of interrogating witnesses and presenting evidence” in order to ensure that

evidence is presented effectively for the ascertainment of truth, time is conserved,

and witnesseses are protected from harassment. See Fed. R. Evid. 611(a). “The

discharge of this responsibility necessarily entails the exercise of discretion.”

18
Brown, Hill, Farmer, and Powers adopt this argument. David Thomas attempts to do so
but cannot because he waived his right to appeal his conviction. See supra, n.11.
66
Haney v. Mizell Mem’l Hosp., 744 F.2d 1467,1477 (11th Cir. 1984). And that

discretion is broad.

In conducting a trial, the judge “may comment on the evidence, may

question witnesses and elicit facts not yet adduced or clarify those previously

presented, and may maintain the pace of the trial by interrupting or cutting off

counsel as a matter of discretion.” Moore v. United States, 598 F.2d 439, 442 (5th

Cir. 1979)19 (citations omitted). The trial court abuses its discretion “[o]nly when

the judge’s conduct strays from neutrality,” id., and even then only when its

remarks demonstrate “pervasive bias and unfairness” that actually prejudice a

party, United States v. Ramirez-Chilel, 289 F.3d 744, 750 n.6 (11th Cir. 2002).

In this case the district court’s comments were not derogatory or

disparaging, and none of them were about the credibility of witnesses or the

substance of any evidence. They were directives to defense counsel aimed at

moving things along. There is no likelihood that the statements made in the

presence of the jury led it to believe that the judge was biased against any of the

defendants. That is especially true given that the judge was evenhanded, directing

as many comments and reprimands at the government’s attorneys as he did at

defense counsel. For example, on more than one occasion the judge scolded the

19
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent the decisions of the former Fifth Circuit issued before October 1, 1981.
67
government attorneys for presenting cumulative evidence or otherwise delaying

the proceedings. The judge also instructed the jury to disregard any of the

comments he made to counsel during trial, and we presume the jury followed those

instructions. See Stone, 9 F.3d at 938.

Considering the record as a whole, Newman v. A.E. Staley Mfg. Co., 648

F.2d 330, 334–35 (5th Cir. Unit B. 1981), we conclude that “[t]he actions of the

trial court challenged here amount to no more than attempts by the presiding judge

to expedite the proceedings.” United States v. Hill, 496 F.2d 201, 202 (5th Cir.

1974). And when we say that the judge was trying to “expedite” the trial, we

mean that he was trying to keep it from bogging down. There were a dozen

defendants being jointly tried on a total of 187 counts, involving more than 300

transactions, and more than a dozen attorneys were participating in the trial. As it

was, the presentation of evidence alone took 31 trial days, and if the judge had not

kept a firm hand on the wheel, the trial might have skidded off the road; the

journey to judgment certainly would have taken much longer than it did. Even if

the judge was understandably a little impatient at times, we have explained before

that “an occasional lapse of patience from the bench will not suffice to overturn a

conviction returned after a full and fair presentation of the evidence.” Id. There

was no rush to judgment.

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B. The District Court’s Encouragement to Stipulate

Nor were any of the defendants railroaded. Van Mersbergen contends that

he was, arguing that he was deprived of due process because the district court

threatened to punish the defendants at sentencing if they refused to agree to

reasonable stipulations in order to expedite the trial proceedings.20 Van

Mersbergen focuses on this comment by the district court:

The Court: Well, the failure to agree to reasonable and usual stipulations
is not technically an obstruction of justice but it’s certainly a factor that
I can consider in future proceedings, if there are any in this case. Who
wouldn’t agree to the stipulations?

Ms. Nelan: I believe it was Mr. Farmer. . . .

Farmer agreed to some stipulations but not to others. He stipulated to the

authenticity of several checks and to the testimony of several borrowers; he

declined to stipulate to the testimony of officials from the defrauded lenders.

We have stated that “[f]ederal law places no limitation on the information

which a court can consider in determining an appropriate sentence.” United States

v. Rodriguez, 765 F.2d 1546, 1554–55 (11th Cir. 1985) (citing 18 U.S.C. § 3661

(originally enacted as 18 U.S.C. § 3577)). To the same effect is 18 U.S.C. § 3661,

which provides: “No limitation shall be placed on the information concerning the

20
Brown, Hill, Farmer, and Powers adopt this argument. David Thomas attempts to do so
but cannot because he waived his right to appeal his conviction. See supra, n.11.

69
background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose of imposing an

appropriate sentence.” 18 U.S.C. § 3661.

We have recognized, however, that in spite of § 3661’s broad language, a

“sentencing court cannot consider against a defendant any constitutionally

protected conduct.” United States v. Rodriguez, 959 F.2d 193, 197 (11th Cir.

1992) (quotation marks omitted); see also U.S.S.G. § 1B1.4 (“In determining the

sentence to impose within the guideline range, or whether a departure from the

guidelines is warranted, the court may consider, without limitation, any

information concerning the background, character and conduct of the defendant,

unless otherwise prohibited by law.”) (emphasis added); United States v. Burgos,

276 F.3d 1284, 1291–92 (11th Cir. 2001). If one considers a criminal defendant’s

failure to stipulate to be the exercise of a constitutional right, it would seem that

increasing a defendant’s sentence because of his failure to stipulate crosses the

line. But some of the lines in this area are blurry.

In United States v. Malekzadeh, 855 F.2d 1492 (11th Cir. 1988), the

defendant argued that she had been punished for exercising her constitutional right

not to testify because the sentencing court gave her a longer sentence as a result of

her refusal to testify against the man she considered her husband. Id. at 1498.

70
Because it was a joint trial, id. at 1494, the defendant would have had to plead

guilty in order to testify against the man who was her co-defendant. We did not

dispute what she claimed had happened, but we rejected her argument on the

ground that “a court is absolutely entitled to consider a defendant’s failure to

cooperate.” Id. We cited for that proposition Roberts v. United States, 445 U.S.

552, 100 S.Ct. 1358 (1980). In Roberts the Supreme Court held that a court could

lengthen a defendant’s term of imprisonment by imposing consecutive instead of

concurrent sentences because he had refused to cooperate in the investigation of

another crime in which he was a confessed participant. We interpreted the Roberts

decision as being based on the sentencing court’s need “to reward those who had

cooperated and to encourage those who might cooperate in the future.”

Malekzadeh, 855 F.2d at 1498. That those who fail to cooperate receive longer

sentences than those who are equally culpable but do cooperate is an inevitable

product of encouraging cooperation.

That principle is written throughout our criminal law. For example, the

Supreme Court has held that it is entirely permissible for prosecutors to threaten a

defendant with a harsher charge carrying a much longer sentence in order to

pressure him into pleading guilty, and then carry through with the threat when the

defendant has the temerity to insist on his constitutional right to trial.

71
Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663 (1978). And the sentencing

guidelines reward those who accept responsibility, the chief indicia of which is

that they helped the prosecution get the case to the sentence stage more efficiently

by pleading guilty. See U.S.S.G. § 3E1.1.

A distinction might be drawn between the carrot and the stick, between

rewarding a defendant for giving up rights to which he is entitled on one hand, and

punishing him for refusing to give up those rights on the other. The argument

against that distinction is that the result for the defendant is the same. If a

defendant receives a sentence of 100 months because he went to trial while his

equally culpable co-defendant gets 50 months because he cooperated by pleading

guilty, is a stick being administered to the defendant or a carrot being given to the

co-defendant?

Whatever may be said about the use of sticks, the law seems to be clear that

he who receives a break has gotten a carrot, and there is nothing wrong with

doling them out. And that is enough to decide this case. At trial, the district court

sometimes expressed its sentiment regarding stipulations by indicating that

cooperation would result in a lower sentence, and at other times by indicating that

failure to cooperate would result in a higher one. At sentencing, however, there

were only carrots — cooperation was rewarded all around. The court specifically

72
told Hill, Powers, Van Mersbergen, Thomas, and Farmer that each of them

received lower sentences than they otherwise would have because each had agreed

to reasonable and appropriate stipulations during the trial.

Van Mersbergen insinuates that prejudice nevertheless resulted because the

court did in fact punish Farmer for his refusal to enter into some of the

stipulations, see supra at 72, as evidenced by the disparity between Farmer’s

sentence (127 months) and Brown’s (5 months).21 The record, however, reflects

that the district court explicitly stated that it sentenced Farmer towards the low end

of his guidelines range (121–151 months) because he had entered into reasonable

stipulations that shortened the trial, which reduced the costs to the government in

time and money. The court did not intimate that it was imposing a longer sentence

because Farmer had not entered into some of the other stipulations.

The government also points out that Farmer deserved a much longer

sentence than Brown because he participated in far more transactions than she did.

The court adequately explained its reasons for both sentences, and those reasons

did not involve a difference in the number of stipulations the two defendants

entered into. The reasons the court gave for Farmer’s sentence (which was, as we

have mentioned, near the bottom of the guidelines range) included the magnitude
21
Of course, Van Mersbergen has no standing to complain about what happened to
Farmer, but his argument on this issue has been adopted by Farmer, so we will consider the
argument as though it were in Farmer’s own brief.
73
of the crime, the loss involved, and Farmer’s lack of remorse. As for Brown, the

court explained that it was sentencing her to only five months when the guidelines

recommended a sentence between 63 and 78 months because of “her extraordinary

lack of profit” and because the amount of loss grossly overstated her criminal

conduct compared to that of the other defendants. Those are reasonable bases for

the difference in sentences imposed on Farmer and Brown.

C. Powers’ Contentions

Powers contends that the district court abused its discretion in various

rulings on his objections and motions relating to evidentiary matters. First,

Powers contends that the court abused its discretion in preventing him from

attacking the credibility of one of the government’s witnesses. Elizabeth

Rusciano, a straw borrower, had testified that she applied for loans using Powers

and Wayne Jenkins as her loan officers on separate occasions but that she was

completely unaware that the applications they filled out for her contained

fraudulent information. During his cross-examination of Wayne Jenkins, Powers’

counsel sought to elicit testimony that in reality Rusciano was complicit in

concocting the fraudulent lease used in the loan she obtained through Jenkins.

The district court cut short this line of questioning, explaining that it was

“remote,” “inconsequential,” and a “needless expenditure of time” because

74
whether or not Rusciano had conspired with Jenkins was irrelevant to whether

Powers had prepared fraudulent loan applications for her. That was not an abuse

of discretion.

Powers also argues that the court’s comments when ruling on that matter so

prejudiced him that the court should have granted a mistrial. Even improper

comments by a judge warrant reversal only if they had such a prejudicial effect on

the jury that they denied the defendant a fair trial. United States v. Tampas, 493

F.3d 1291, 1303 (11th Cir. 2007). The comments that Powers complains about

could not have had any effect on the jury because they were made outside its

presence. Although the court did ask Powers’ attorney in the presence of the jury

about the relevance of his line of questioning, that was an entirely proper question

and could not have unfairly prejudiced the jury. See Tampas, 493 F.3d at 1303

(“[T]he brief question to defense counsel in the context of an evidentiary objection

had no clear effect on the jury.”). And, as we have mentioned before, the court

instructed the jury to disregard any comments by it or the attorneys.

Powers also contends that he was prejudiced by three statements or

comments one of the prosecutors made at the trial: a question about Powers being

terminated from his job at First Realty Mortgage; the prosecutor’s statement to the

court about a question she wanted to ask a witness about Powers’ income; and the

75
prosecutor’s mention of evidence related to a dismissed count during closing

arguments. “Prosecutorial misconduct requires a new trial only if we find the

remarks (1) were improper and (2) prejudiced the defendant’s substantive rights.

In order to assess the prejudicial impact of a prosecutor’s statements, we must

evaluate them in the context of the trial as a whole and assess their probable

impact on the jury.” United States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir.

1998). For a prosecutor’s prejudicial comments to affect a defendant’s substantial

rights, there must be a reasonable probability that, but for the remarks, the

outcome would have been different. United States v. Hall, 47 F.3d 1091, 1098

(11th Cir. 1995).

Considering the pile of evidence proving the prosecutor’s case against

Powers, even if we were to assume that her remarks or questions were improper,

Powers has not demonstrated that his substantial rights were prejudiced,

particularly in light of the court’s instructions to the jury to disregard any

comments made by the attorneys during the trial. See Hall, 47 F.3d at 1098.

Finally, Powers contends that the district court erred by denying his motion

for a mistrial based on the prosecutor’s reference to evidence about Count 33, a

charge that had already been dismissed (on the government’s motion because it

76
listed the wrong lender). Powers failed to object to the prosecutor’s statement, and

that statement did not rise (or sink) to the level of plain error.22

VII. Jury Instruction Issues

Brown, Farmer, Hill, and Van Mersbergen challenge the district court’s

refusal to give some of their requested jury instructions.23 Hill asked for one about

good faith reliance on the advice of counsel as a defense, which the district court

rejected on the basis that there was insufficient evidence to support it. All of the

defendants requested a general instruction on good faith. The government did not

oppose one, except as to the 18 U.S.C. § 1014 false credit application charges; it

asked that the good faith instruction be modified so that it did not apply to the §

1014 charges. The government also asked that the good faith instruction include a

caveat to the effect that ignorance of the law was not a defense. The court granted

the government’s requests and issued a modified good faith instruction that

included the so-called “ignorance of the law” instruction.

22
Powers also contends that even if no single ruling or occurrence about which he
complains deprived him of a fair trial, the cumulative effect of all of them did. See United States
v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). We disagree. Powers may not have gotten a
perfect trial, but he was not entitled to one. See United States v. Ramirez, 426 F.3d 1344, 1353
(11th Cir. 2005) (“A defendant is entitled to a fair trial but not a perfect one.”) (quotation marks
omitted). He did receive a fair trial.
23
David Thomas also makes this argument, but we cannot consider it as to him because he
waived his right to appeal his conviction. See supra, n.11.

77
The court also granted, over the defendants’ objections, the government’s

request for an instruction regarding deliberate ignorance. Brown and Powers

argue that was error. The court denied as argumentative Powers’ request for a

theory of defense charge, and he argues that was error.

While we review de novo issues about whether the content of instructions

that were given are correct statements of law, United States v. Chandler, 996 F.2d

1073, 1085 (11th Cir. 1993), we review only for an abuse of discretion a district

court’s refusal to give a requested jury instruction. See United States v. Sirang, 70

F.3d 588, 593 (11th Cir. 1995). We will reverse a district court’s refusal to give

an instruction only if: “(1) the requested instruction was a correct statement of the

law, (2) its subject matter was not substantially covered by other instructions, and

(3) its subject matter dealt with an issue in the trial court that was so important that

failure to give it seriously impaired the defendant’s ability to defend himself.”

United States v. Jordan, 582 F.3d 1239, 1247–48 (11th Cir. 2009); see also Sirang,

70 F.3d at 593.

A. Hill’s Proposed Instruction about Good Faith Reliance on Advice of Counsel

Hill argues that because he used attorneys for most of the fraudulent

transactions and closings, he was entitled to rely on their implied advice that what

78
he was doing was legal.24 He requested that the jury be instructed that good faith

reliance on his counsel’s advice was a complete defense to the charges against

him. The government opposed the instruction on the ground that it would be

misleading because Hill’s attorneys were also co-conspirators. The district court

denied Hill’s request, finding that there was insufficient evidence to support the

instruction because there had been no testimony that any of the defendants actually

did rely on advice of counsel. In denying Hill’s post-trial motion for acquittal, the

district court reiterated that there was no evidence to support the instruction. It

added that the fraud was obvious from the face of the documents and that the

attorneys who testified about the residential mortgage fraud scheme were admitted

co-conspirators.

In order to qualify for an instruction on good faith reliance on the advice of

counsel, a defendant must show that (1) he fully disclosed to his attorney all

material facts that are relevant to the advice for which he consulted the attorney;

and (2) thereafter, he relied in good faith on advice given by his attorney. See

United States v. Miles, 290 F.3d 1341, 1354 (11th Cir. 2002); United States v.

Condon, 132 F.3d 653, 656 (11th Cir. 1998); United States v. Johnson, 730 F.2d

683, 686 (11th Cir. 1984).
24
Brown, Farmer, and Van Mersbergen adopt this argument. David Thomas attempts to
do so but cannot because he waived his right to appeal his conviction. See supra, n.11.

79
Although the burden on a defendant to put forth sufficient evidence to

support a proposed jury instruction is low, United States v. Ruiz, 59 F.3d 1151,

1154 (11th Cir. 1995), Hill failed to meet it because there was no evidence to

support the instruction. Hill points out that attorneys were used by many of his

“investors” as well as by the lenders, and he was personally represented by at least

five different attorneys over the course of the events. At no point, however, did

any of the attorneys advise Hill that the overall scheme or all of its essential

components were legal.

Hill argues that he relied on the advice of attorneys Dewrell and Sacks with

respect to Counts 1–14, which charged him with the line of credit fraud on Charter

Bank. Both of those attorneys testified, but they did not say that they had

represented Hill in his dealings with Charter, or that they had reviewed and

advised Hill about the false statements on the credit applications, the false

statements on Hill’s and Graham’s financial statements, or the false statements that

Hill made to Hungerford, a vice president of Charter Bank who had requested

assurances that Hill’s lines of credit were sufficiently secured.

Attorneys Dewrell and Sacks did testify that they advised Hill concerning

the formation and business of Atlanta Condo and Atlanta Millenium (the Hill-

controlled entities involved in the Charter Bank fraud), and that they advised him

80
about his personal transactions with Vargas (his co-conspirator at Charter who

helped him get the lines of credit). Those transactions were not, however, the

basis of the fraud charges. Hill has not pointed to a single piece of evidence

indicating that he fully disclosed to any attorney the material facts relevant to his

obtaining the lines of credit from Charter Bank, or any evidence indicating that

any attorney advised him that his fraudulent representations to Charter were legal.

So, no advice of counsel instruction was warranted on Counts 1–14.

Hill also argues that he relied upon the advice of his co-conspirator

attorneys Halcomb and Wolf with respect to Counts 19–187, charging him with

the multi-property mortgage fraud. Halcomb and Wolf both testified, however,

that at no time did they believe that Hill had come to them for advice, and they

specifically denied ever giving him an opinion as to the legality of those

transactions. Given the lack of evidence to support an advice of counsel

instruction, the district court’s refusal to give one was not an abuse of discretion.25

B. The Good Faith Instruction That Was Given

According to Hill, the court’s instruction on good faith as a defense was

erroneous because it did not cover the false credit application counts, and because

25
We need not reach the government’s alternative arguments that the instruction was
properly refused because the fraud was obvious and therefore the reliance could not have been in
good faith, or that a defendant may not claim good faith reliance on advice of counsel where the
counsel was a co-conspirator who participated in the fraud.

81
its effect was not strong enough to survive the government’s closing argument that

“ignorance of the law is not a defense.”26 We reject both of those arguments.

1. Refusal to Instruct on Good Faith as to the Section 1014 Charges

Hill asked the court to give the pattern jury instruction on good faith as a

defense to all of the charges in the indictment. The court gave that instruction as

to all of the fraud charges in the indictment, except the § 1014 false credit

application charges. At the government’s request, the court left those charges

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/218749. Public record. Not legal advice.