Petition for Writ of Certiorari — Robert J. Jesenik, Petitioner v. United States
Supreme Court briefMay 28, 2026
Ask Donna
What actually matters in this document.
Text
APPENDIX
DOCUMENT
APPENDIX A: Ninth Circuit
Opinion and Memorandum
APPENDIX B: District Court
Fourth Amended Judgment
APPENDIX C: Panel Rehearing
Denial
APPENDIX D: Jury
Instructions Excerpt
APPENDIX E: Excerpts of
Trial Transcript Volume 25
APPENDIX F: Excerpts of
Trial Transcript Volume 8
DATE
September 5, 2025
PAGE NO.
Page 2
May 28, 2025
Page 59
December 29, 2025
Page 66
May 8, 2023
Page 68
May 5, 2023
Page 70
April 12, 2023
Page 71
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 1 of 43
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 23-2282
D.C. No.
3:20-cr-00228-SI-1
v.
ROBERT J. JESENIK,
OPINION
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 23-2308
D.C. No.
3:20-cr-00228-SI-3
v.
ANDREW N. MACRITCHIE, AKA
Andrew MacRitchie,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
APPENDIX A
Page 2
No. 23-2316
D.C. No.
3:20-cr-00228-SI-4
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 2 of 43
2
USA V. JESENIK
v.
BRIAN K. RICE,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 24-5402
D.C. No.
3:20-cr-00228-SI-3
v.
ANDREW N. MACRITCHIE, AKA
Andrew MacRitchie,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 24-5404
D.C. No.
3:20-cr-00228-SI-1
v.
ROBERT J. JESENIK,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
APPENDIX A
Page 3
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 3 of 43
USA V. JESENIK
3
Argued and Submitted April 2, 2025
San Francisco, California
September 5, 2025
Before: Andrew D. Hurwitz, Lucy H. Koh, and Anthony D.
Johnstone, Circuit Judges.
Opinion by Judge Hurwitz
SUMMARY*
Criminal Law
The panel affirmed three defendants’ convictions arising
out of the failure of Aequitas Management LLC, an
investment management company.
Former Aequitas executives Robert Jesenik, Andrew
MacRitchie, and Brian Rice were convicted of wire fraud
and conspiracy to commit wire fraud. Jesenik was also
convicted of making a false statement on a loan application.
The defendants contended that although they were
charged in the operative indictment only with engaging in
material misrepresentations and misleading half-truths, they
may have been improperly convicted on an omissions theory
of fraud without instructions requiring proof of a trusting
relationship. Rejecting this contention, the panel wrote
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
APPENDIX A
Page 4
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 4 of 43
4
USA V. JESENIK
(1) evidence of what the defendants did not disclose is
probative of the materiality of a half-truth or
misrepresentation, (2) the government did not argue that
omissions alone were sufficient to prove fraud or present that
theory to the jury, (3) the government sufficiently tethered
non-disclosures to affirmative statements, and (4) the jury
instructions fairly stated the law. Whether statements about
Aequitas’s financial health were misleading half-truths,
rather than general claims of financial success or subjective
enthusiasm and puffing, was properly a question for the jury.
The panel rejected Rice’s challenge to the sufficiency of
the evidence to support his conviction.
The panel rejected the defendants’ contentions that they
were precluded from presenting a complete defense—
arguments centered on disclosures in Private Placement
Memoranda
(PPMs)
and
audited
financial
statements. Consistent with other circuits that have
addressed the issue, the panel held that contractual
disclaimers do not render immaterial other representations in
criminal wire fraud prosecutions. For the same reason, the
panel rejected the argument that the defendants’
representations in sales pitches and marketing materials
were immaterial to “accredited” investors. Nor did the
district court err in admitting evidence of investors’ reliance
on those representations.
Finding no abuse of discretion in the district court’s
denial of a proposed jury instruction on “objective”
materiality, the panel held that the instructions given to the
jury fairly and adequately covered whether representations
in sales pitches and marketing materials were material.
The panel rejected the defendants’ claims that the jury
was prevented from considering defense theories about
APPENDIX A
Page 5
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 5 of 43
USA V. JESENIK
5
elements other than materiality. To the extent the defendants
challenged the district court’s preclusion of evidence about
investor negligence or non-reliance, their argument is
foreclosed. The district court’s evidentiary rulings did not
prevent the defendants from urging legitimate disclosurebased defenses, and the jury instructions adequately covered
the defendant’s good-faith defense theory. The panel
rejected the defendants’ assertion that they were prejudiced
by the government’s statement in closing that “you can’t
disclose your way out of fraud.”
The panel addressed other issues in a concurrently filed
memorandum disposition.
APPENDIX A
Page 6
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 6 of 43
6
USA V. JESENIK
COUNSEL
Hannah Horsley (argued) and Ryan W. Bounds, Assistant
United States Attorneys; Suzanne Miles, Criminal Appellate
Chief; Natalie K. Wight, United States Attorney; Office of
the United States Attorney, United States Department of
Justice, Portland, Oregon; Christopher Cardani, Assistant
United States Attorney, Office of the United States Attorney,
United States Department of Justice, Eugene, Oregon; for
Plaintiff-Appellee.
Jessica G. Snyder (argued) and Conor Huseby, Assistant
Federal Public Defenders; Elizabeth G. Daily, Appellate
Chief; Office of the Federal Public Defender, Portland,
Oregon; Anna M. Estevao (argued), Claire B. Buck, and
Michael Tremonte, Sher Tremonte LLP, New York, New
York; Angelo J. Calfo (argued), Angeli & Calfo LLC,
Seattle, Washington; Henry C. Phillips, Morgan Lewis &
Bockius LLP, Seattle, Washington; Brendan J. Anderson,
Morgan Lewis & Bockius LLP, Washington, D.C.; for
Defendants-Appellants.
APPENDIX A
Page 7
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 7 of 43
USA V. JESENIK
7
OPINION
HURWITZ, Circuit Judge:
This case arises out of the failure of an investment
management company. After the company was placed in
receivership, Robert Jesenik, Andrew MacRitchie, and Brian
Rice, former executives of the company, were indicted and
eventually convicted of wire fraud and conspiracy to commit
wire or mail fraud. Jesenik was also convicted of making a
false statement on a loan application.
Each defendant has timely appealed.
We have
jurisdiction under 28 U.S.C. § 1291 and affirm the
convictions for the reasons in this opinion and in a
concurrently filed memorandum disposition.
I.
Facts and Procedural Background
A. Facts1
Aequitas Management LLC, an investment management
company, was founded in the 1990s by Robert Jesenik, its
Chief Executive Officer. Andrew MacRitchie, its Chief
Compliance Officer, joined the company in 2007, and Brian
Rice, an Executive Vice President, joined in 2014.
In the mid-2000s, Aequitas began purchasing discounted
receivables from hospitals, later expanding to other
businesses, and collected the debt through its affiliates.
Sellers of the receivables executed recourse contracts,
1
We recite the facts in the light most favorable to the government, the
prevailing party below. See, e.g., United States v. Halbert, 640 F.2d
1000, 1008 (9th Cir. 1981) (per curiam).
APPENDIX A
Page 8
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 8 of 43
8
USA V. JESENIK
agreeing to repurchase defaulted debt. Aequitas solicited the
funds to purchase receivables through its Private Note
Program (“Private Note”), managed by its affiliate Aequitas
Commercial Finance (“ACF”), which issued secured
subordinated promissory notes to investors. Starting in late
2014, Aequitas also solicited private investments through
the Income Opportunity Fund II (“IOF II”) and Luxembourg
Bond (“Lux Bond”). 2 Between June 2014 and February
2016, the period covered by the indictment, Aequitas raised
approximately $346 million from private investors,
including $167 million through Private Note, $68 million
through IOF II, and $15 million through the Lux Bond.
Aequitas’s investors were required to be “accredited”
under wealth and sophistication standards set by the
Securities and Exchange Commission (“SEC”) for
participation in the Regulation D private securities market.
A majority were represented by Registered Investment
Advisors (“RIAs”), some of whom also invested their own
funds.
Investors were typically solicited through in-person sales
pitches by Aequitas executives, sometimes using marketing
materials such as a “tear sheet,” a one- or two- page
summary of the investment, or a longer “pitch deck.” Before
investors’ funds were released to Aequitas, they signed a
subscription agreement and acknowledged reading a Private
2
IOF II was a standalone fund, offering senior promissory notes,
marketed to Registered Investment Advisors (“RIAs”). The Lux Bond
was a debt instrument offered to European investors through a limited
partnership in the Cayman Islands.
APPENDIX A
Page 9
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 9 of 43
USA V. JESENIK
9
Placement Memorandum (“PPM”), a lengthy document
describing the terms and potential risks of the investment.3
By 2014, one of Aequitas’s largest receivables assets
was student loan debt from Corinthian College. Because of
defaults, Aequitas was receiving cash payments of about $4
million per month from Corinthian under a recourse
agreement. But Corinthian stopped paying in June 2014 and
later filed for bankruptcy.
Aequitas accordingly faced dire short-term cash
shortfalls. In response, it offered investors “blue-light
specials,” promissory notes with short redemption periods
and high interest rates. It also persuaded some investors to
delay redemptions. These measures, however, provided
only short-term relief. The shortfalls were exacerbated by
Aequitas’s spending on new offices, private jets, and
corporate retreats.
The SEC began an investigation into Aequitas in the
spring of 2015. In November 2015, Aequitas stopped paying
Private Note redemptions, and in January 2016, it defaulted
on its obligations to the Private Note investors. The
company collapsed in March 2016 and was placed in
receivership.
B. The Indictment
After Aequitas collapsed, Jesenik, MacRitchie, and Rice
were indicted on one count of conspiracy to commit mail and
wire fraud, 18 U.S.C. § 1349; 28 counts of substantive wire
fraud, 18 U.S.C. § 1343; and one count of conspiracy to
commit money laundering, 18 U.S.C. § 1956(h). Jesenik
3
Consistent with the trial witnesses and the parties, we refer to
subscription agreements, PPMs, and financial statements as “written
disclosures” to distinguish them from written marketing materials.
APPENDIX A
Page 10
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 10 of 43
10
USA V. JESENIK
was also charged with one count of making a false statement
on a loan application, 18 U.S.C. § 1014. Three other
Aequitas executives—Brian Oliver, an Executive Vice
President; Olaf Janke, Chief Financial Officer through early
2015; and Scott Gillis, Chief Financial Officer thereafter—
entered guilty pleas to various charges. Oliver and Janke
testified for the government at the joint trial of Jesenik,
MacRitchie, and Rice.
The operative indictment alleged that the three
defendants solicited investments through “material
misrepresentations and misleading half-truths” about “the
uses of investor money, the financial health and strength of
Aequitas, Aequitas’s investments and investment strategies,
and the inherent risks of those investments and investment
strategies.” In particular, it alleged that the defendants
represented to investors that their funds would be used to
purchase receivables, but that Aequitas actually “used the
majority of new investor money to repay prior investors and
to pay operating expenses,” because it “was consistently in
liquidity and cash-flow crises.” It also alleged that Aequitas
“concealed [the] material facts” that it had “insufficient
collateral to secure the notes it sold to investors,” and that
the most valuable of its purported assets was an
intercompany loan used as an artifice to conceal
“accumulating operating losses.”
C. Trial
1. The Government’s Case
The government’s case focused on false or misleading
statements to investors in sales pitches, discussions of
existing investments, and marketing materials.
The
government presented evidence that the defendants misled
APPENDIX A
Page 11
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 11 of 43
USA V. JESENIK
11
investors about “how their money was going to be used” and
“how secure their investments were.”
Investors testified extensively about the importance of
marketing materials, especially the tear sheets. One RIA
testified that the tear sheet “is pretty much the bible in our
industry” to explain investments to clients, and that most of
her investors base their investment decisions on the tear
sheets, rather than the “fairly generic” PPM. Other RIAs
explained that the tear sheets were more valuable than the
PPMs for their clients’ investment decisions because a “tear
sheet is concise and tells you exactly what you need to know
about every product you invest in,” while the PPM is so
“voluminous,” “it has things in it that anybody would just
not find.” 4 Tear sheets, updated quarterly, were also the
primary communication from Aequitas to RIAs on “how the
funds are doing.”
Several investors testified at trial about the importance
of verbal communications with Aequitas executives to their
investment decisions. One RIA testified that he would “not
deal with a company” unless he met with top executives,
“the ones who really know what’s going on” and provide
4
When asked to explain the relationship between marketing materials
and the PPM, Aequitas’s general counsel explained:
The PPM was really a lawyer-driven document that
was sort of the CYA to catch all the risk factors and all
the things that could go wrong. The marketing
materials were very much, “Here is how we are going
to invest your money. Here is why investing with us
is a good idea and how you’ll make money if you trust
us to invest your money.”
Aequitas’s head of marketing explained that the PPM was not a sales
tool: “I don’t think [the PPM] was even placed in the shared marketing
folder.”
APPENDIX A
Page 12
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 12 of 43
12
USA V. JESENIK
“the information I need to service my clients.” The RIA
testified that the “verbal communication that I received from
the executives of Aequitas is paramount and far more
significant than the PPM.” Investors testified that based on
their direct communications with the defendants, they
decided to invest in Aequitas, recommend Aequitas to
clients, and keep their money in Aequitas.
One RIA testified that neither Jesenik, Rice, nor
MacRitchie ever talked about the PPM when pitching him,
and another testified that none of the defendants stated that
their oral statements or the tear sheets should be modified by
the PPM. Oliver, Jesenik’s former “No. 2” and head of
fundraising, stated that he only got the sense a “handful” of
times that the disclosures in the PPM changed someone’s
decision to invest after an in-person meeting.
a. False Statements
i. Uses of Investor Funds
Oliver testified that he and Jesenik pitched investors
hundreds of times on “win-win-win-win” investments in
healthcare receivables that purportedly offered a built-in
safety net, high rates of return, and social benefits to
hospitals and patients. Investors found the pitch appealing:
one testified that she was interested in healthcare receivables
because they were “very secure,” “[d]ue to the fact that
insurance companies make their payments for the most part,
and the majority of individuals are honest people and pay
their medical bills.”
For blue-light specials, Oliver explained that he and
Jesenik developed additional talking points to “combat the
potential concerns with investors that the funds are needed
to solve a problem/crisis (cash losses, lawsuit, Corinthian, et
cetera).”
Specially designed marketing materials
APPENDIX A
Page 13
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 13 of 43
USA V. JESENIK
13
highlighted that Aequitas was “seeking short-term liquidity”
to pursue “new financing initiatives.”
Aequitas investors testified that they relied on
representations by each of the defendants that their money
would be used to purchase secure receivables. Consistent
with those representations, Private Note tear sheets stated
throughout the indictment period that investor funds would
be used to buy receivables:
ACF uses proceeds from Private Note
primarily to fund or finance the purchase of
student loan receivables from educational
providers, patient-pay receivables from
healthcare providers, other private credit
strategy receivables and loan portfolios, or
direct collateralized loan and lease
obligations, equities, and secured liquidity
lines to affiliates for general corporate
purposes.
The tear sheet for IOF II stated:
The Aequitas Income Opportunity Fund II
(“IOF II” or the “Fund”) follows a value
investing approach by acquiring or investing
in receivables or loans. IOF II accomplishes
this by investing in receivables, loans and
leases, often at discounted prices, through
Aequitas Capital. Aequitas Capital has
established itself within large and inefficient
credit markets, such as education, healthcare
and private credit, where it provides unique
APPENDIX A
Page 14
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 14 of 43
14
USA V. JESENIK
financing solutions to companies and their
consumers.
The Lux Bond marketing materials indicated that
investments would be backed by “pools of consumer loan
receivables originated through Aequitas Capital’s platform,”
“accessed through structures that provide investors
significant credit enhancement.”
The reality was far different. Charles Foster, a CPA who
performed a forensic accounting of Aequitas during its
receivership, testified that he could not identify “meaningful
amounts” of private investor funds used to buy receivables
during the indictment period.
Aequitas continued to acquire receivables, but largely
through bank financing. Because those receivables were
collateral for the loans, they did not secure the great bulk of
new private investments.
Meanwhile, new private
investments were overwhelmingly used to pay prior
investors and fund operating expenses, because Aequitas’s
remaining cash-generating investments were not profitable
enough to fund its cash needs in the wake of Corinthian’s
default.
In the fall of 2015, the Private Note tear sheet was
revised to state that “ACF uses proceeds from Private Note
primarily to repay prior investors.” Aequitas investors
shown the document at trial testified they would never have
invested had they known this. As one RIA put it, he would
not have invested “a penny” of his clients’ money “[b]ecause
that’s the definition of a Ponzi scheme.”
APPENDIX A
Page 15
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 15 of 43
USA V. JESENIK
15
ii. Security of Investments and Aequitas’s Financial
Health
Oliver testified that a “strong selling point” was that
clients’ investments were secure because, in addition to the
“recourse element,” they were backed by Aequitas’s other
assets. One RIA described Jesenik and Oliver “[t]elling me
about their Private Notes; how successful they have been
over the years; the fact that in 2008 during the credit crisis
their company did not miss any payments to any of their
investors and how prudent they were with the investments
that they made over the years and how they grew their
company over the years.”
Aequitas executives also stressed the company’s assets,
growth, and financial health to reassure concerned investors.
One investor testified that he was convinced Corinthian’s
collapse would have no impact on his investments based on
a letter from Jesenik, MacRitchie, and Janke assuring
investors that their investment was “strongly protected” by
the collateral and cash flow of ACF and its growing portfolio
of investments.
Marketing materials were consistent with these
representations. For example, Private Note tear sheets
indicated that promissory notes were supported by a lien on
all assets of ACF and included a “collateral summary”
showing the total value of ACF’s assets compared to the
Private Note debt. Until revised in the fall of 2015, the
summary indicated that ACF had twice as much collateral as
was owed to them as a group, which was, as one investor
APPENDIX A
Page 16
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 16 of 43
16
USA V. JESENIK
testified, “a very good profile,” and that approximately onethird of this collateral was receivables.5
In fact, only about half the total claimed value of
assets—and only a fraction of ACF’s claimed receivables—
was available as collateral for Private Note holders after
deducting the senior interests of others, such as banks.
Moreover, one of ACF’s largest purported assets,
categorized on tear sheets as “corporate debt,” was a loan to
its parent company, Aequitas Holdings (the “Holdings
Note”), which used the money to pay operating expenses of
other Aequitas affiliates.
This loan, which grew
dramatically during the indictment period, was severely
undercollateralized. According to Foster, by the end of the
indictment period, the debt on the Holdings Note was $180
million, but at least $110 million, and perhaps as much as
$170 million, could not be repaid in the event of liquidation.
On top of this, the value of Aequitas’s third major asset
category—equity investments—was based largely on
unrealized gains in the estimated value of a company that
serviced healthcare receivables. 6 Investors testified that
they would not have invested had they known the true nature
of “corporate debt” or the actual amount of available
collateral.
5
For example, the Q1 2015 tear sheet stated that ACF had assets with a
“collateral value” of $772,259,000 to support $364,822,000 of
“subordinated debt” and $136,721,000 of “senior debt and credit
facilities.” The asset allocation chart listed $113,595,000 in education
credit, $41,832,000 in healthcare credit, $26,505,000 in transportation
credit, and $28,816,000 in consumer and small business credit.
6
The revised Q3 2015 tear sheet removed the “corporate debt” category,
replacing it with “loans to affiliates.” Taken together, equity investments
and loans to affiliates comprised 84% of the assets purportedly backing
Private Note investments.
APPENDIX A
Page 17
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 17 of 43
USA V. JESENIK
17
b. The Defendants’ Roles in the Conspiracy
Jesenik directed solicitation of new investments, efforts
to persuade existing investors to delay redemptions, and use
of new investor funds to manage ongoing cash shortfalls.
Janke testified that “nothing” about Aequitas’s financial
situation “went without his approval.” Jesenik also solicited
investments directly.
MacRitchie oversaw and approved Aequitas’s marketing
materials. He also directly solicited investments, especially
in the Lux Bond, which he established.
Rice managed Aequitas’s sales to RIAs, for whom he
became the primary contact in 2015, and personally solicited
RIA investments in IOF II and Private Note. Rice also
coordinated efforts to fundraise and delay redemptions.
Oliver and Janke testified that the defendants knew they
were misleading investors about the uses of their funds and
security of their investments. Top Aequitas executives,
including the three defendants, were regularly apprised at
executive committee meetings of the company’s financial
situation, including its increasing operating losses and the
value of the Holdings Note. Jesenik and Rice also received
frequent “cash dash” emails, which documented Aequitas’s
urgent cash shortfalls needed to repay prior investors and
fund operating expenses.
Emails documented the
defendants’ coordination of fundraising efforts and
allocation of new investor money to meet these shortfalls.
Two former Aequitas employees, Vanessa Dehaan and
Jessica Cataudella, testified that during compliance testing
in the spring of 2015, they became concerned that Aequitas
was engaging in a Ponzi scheme. They raised their concerns
to MacRitchie, who rebuffed them.
APPENDIX A
Page 18
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 18 of 43
18
USA V. JESENIK
Dehaan and Cataudella then shared their concerns with
Robert Holmen, who became general counsel in June 2015,
shortly after the SEC investigation began. Over the summer
and fall of 2015, Cataudella and Holmen sought to revise
marketing materials and PPMs to accurately reflect
Aequitas’s uses of investor funds and the value of its assets.
In describing those efforts, Cataudella explained that:
So it all has to connect. It all has to match.
One cannot be saying one thing and then
another document say, “Well, we are really
not doing that,” right. So, for instance, if
you’re soliciting investor assets, and you
know that those assets may not be used for its
intended purposes, you can’t have a
backstop, in my view, of a PPM.
....
It means you can’t say to someone, “Well, we
are not going to use your money for what we
say we are going to use” and have that be
okay; have no repercussions made.
In this testimony, Cataudella used a “tongue-in-cheek”
phrase that she said was common in the compliance industry:
“you can’t disclose away fraud.” Investors did not receive
the revised materials until late 2015 and early 2016.
At a meeting attended by MacRitchie and Rice on
September 1, 2015, Holmen raised concerns that Aequitas
was at risk of being unable to pay its investors because ACF
had net negative revenue and net negative equity, and over
$90 million of the then-$150 million Holdings Note was
unsupported by collateral. Holmen also observed that during
July and August, several million dollars raised from IOF II
APPENDIX A
Page 19
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 19 of 43
USA V. JESENIK
19
investors had been transferred to ACF to pay Private Note
investors and operating expenses, and “point[ed] out that
using one set of investors’ money to redeem investors at
100% out of a different fund that is in the red may be deemed
a Ponzi scheme.” Holmen had raised his concerns with
Jesenik the week before.
On September 1, Oliver sent Rice an email expressing
concern that despite Holmen’s warnings of “compliance and
disclosure risks around ACF being viewed as insolvent and
having insufficient asset/collateral value to support the
Private Note holders,” Aequitas would “fall into a false sense
of security that we are in some accounting manner ‘making
money’ when we are in fact burning it at an alarming pace.”
Oliver sent a similar email to MacRitchie, who replied:
To be honest, though, we have been heading
towards this point for a couple of years spending money we don’t have, addicted to
the Private Note investments. . . . We are
heading for a big train wreck, and I don’t
know how we avoid it.
Nonetheless, the defendants continued to solicit investments
through Private Note, IOF II, and the Lux Bond to meet
ongoing shortfalls without disclosing the facts underlying
Holmen’s concerns.
On September 23, 2015, Oliver sent Rice an email about
pitching RIAs on a “short term . . . bridge financing
opportunity” to help Aequitas raise $7-10 million to buy
healthcare receivables, “[s]o we are singing from the same
song sheet.” The “song sheet” email followed an internal
email in which Oliver indicated that because of upcoming
redemptions due to investors, Aequitas would have a $6.5
APPENDIX A
Page 20
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 20 of 43
20
USA V. JESENIK
million shortfall by the end of the month—assuming it could
use $6.4 million of new Lux Bond funds. Chris Bean, an
RIA, testified that Rice told him on September 24 that
Aequitas was “urgently looking for cash” to capitalize on a
“time-sensitive investment opportunity” to “exercise options
on two businesses that were performing well,” and would
offer up to $10 million in Private Note with a 90-day
redemption period and a high interest rate. Based on Rice’s
representations, Bean’s clients committed $4 million during
the following week.
In multiple conversations with Bean during the fall of
2015, Rice did not disclose Aequitas’s liquidity crisis,
difficulty meeting payroll and late redemptions, the SEC
investigation, or Holmen’s concerns. Bean testified that he
would not have invested his clients’ money had he known
these facts or that their money would not be used for a timesensitive receivables investment opportunity.
On September 30, 2015, a European company invested
$5 million in the Lux Bond. MacRitchie then told Gillis that
he “could loan up to $3 M[illion] [to ACF] short term.”
Although Holmen advised that the loan was risky,
MacRitchie authorized it. Nicholas Mavroleon, who helped
solicit Lux Bond investments and witnessed MacRitchie
pitch the Lux Bond to European investors several times,
testified that he had never heard MacRitchie mention the use
of investments for affiliate loans. Mavroleon also testified
that MacRitchie presented the Lux Bond as a “bankruptcy
remote vehicle,” as did the pitch deck. In February 2016,
Aequitas informed the European company it could not repay
the loan.
By early November 2015, Aequitas had stopped paying
Private Note redemptions, and on December 1, Oliver
APPENDIX A
Page 21
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 21 of 43
USA V. JESENIK
21
internally circulated a draft letter explaining this to investors.
Although Holmen had recommended ending Private Note
fundraising on October 30, it continued thereafter, as the
defendants attempted to reassure increasingly concerned
investors. Brett Trowbridge, an investor who was told that
his money would be used to buy receivables, signed a
subscription agreement in November 2015, but delayed
wiring investment funds to Aequitas because he was
concerned about the SEC investigation. Contrary to
Holmen’s advice, Trowbridge was not sent an updated tear
sheet.
Trowbridge met with Oliver and Jesenik in December to
discuss whether the company was healthy and his $1.5
million investment was safe. At the meeting, Jesenik “talked
about the big picture of the business; how well it was going”;
about the company’s expansion to New York and Europe;
and said that the receivables business was “healthy and
good.”
Jesenik assured Trowbridge that the SEC
investigation would be resolved soon, and Oliver said the
company’s cash flow was positive. Neither mentioned
liquidity problems or that Aequitas had stopped paying
redemptions. Trowbridge testified that he would not have
invested had he received the updated tear sheet or Oliver’s
draft letter, and that he felt Jesenik lied to him.
2. The Defense
Jesenik and MacRitchie focused heavily on the PPMs
and other written disclosures, particularly ACF’s audited
financial statements. Jesenik’s counsel argued that:
[I]nformation conveyed to investors by Bob
Jesenik was not a misleading half-truth. . . .
The government wants to make this about
APPENDIX A
Page 22
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 22 of 43
22
USA V. JESENIK
oral pitches and marketing materials, and it is
about that. . . It is about everything investors
were told. Simply put: If there is full
disclosure, there is no fraud, right. There is
no intent to deceive or cheat.
MacRitchie’s counsel similarly argued:
There is no half-truth when the whole truth
was provided. And there is no requirement
that every piece of information be provided
on a one-page marketing piece obviously.
These defendants stressed that documents other than the
tear sheets disclosed critical facts about the use of investor
funds and Aequitas’s finances that were allegedly left out of
verbal discussions and marketing materials. For example,
the Private Note PPM’s “Uses of Proceeds” section
disclosed that some investor funds might be used to pay prior
investors:
The Company generally pays the principal
and interest of Secured Notes from the
proceeds from repayments of loans, leases,
subordinated debt investments and similar
assets of the Company and sales of Company
assets. From time to time, the Company may
use proceeds of the sale of Secured Notes to
repay the principal and interest of previously
issued Secured Notes due principally to the
illiquid nature of many of the Company’s
investments and to the Company’s ongoing
efforts to reduce its weighted average cost of
capital by, in part, replacing Secured Notes
APPENDIX A
Page 23
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 23 of 43
USA V. JESENIK
23
bearing higher interest rates with Secured
Notes bearing lower interest rates.
It also disclosed that “[t]he Company uses proceeds to
provide lines of credit for the benefit of its affiliates,”
including to “[p]rovide working capital and operating
liquidity.” A lengthy appendix of risk factors discussing the
security of investments elaborated that: “from time to time a
significant portion of the collateral securing the Secured
Notes may be in the form of loans or other obligations owed
to the Company by its affiliates.” An October 2014
supplement disclosed Corinthian’s default and the resulting
possibility of a “material adverse effect” on Aequitas’s
“operations and financial performance and its ability to
repay the Secured Notes.”
Both tear sheets and PPMs directed potential investors to
ACF’s financial statements. Serena Morones, a defense
forensic accounting expert, testified that ACF’s audited
financial statements disclosed Aequitas’s loans to affiliates,
including the Holdings Note, and their growth over time.
Morones also testified that the financial statements made
plain that Aequitas had “very negative cash flow,” that most
of its income was from unrealized, non-cash gains, and that
the company depended on borrowing from banks and private
investors to finance its operating losses. She further testified
that, based on other information in the statements, a reader
could “connect the dots” that investor funds were being used
for operating expenses and redemptions.
Jesenik and MacRitchie argued that their written
disclosures showed a lack of intent to defraud. They
believed their investors read the PPMs, “the main document
for explaining how the investment works,” and asserted that
APPENDIX A
Page 24
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 24 of 43
24
USA V. JESENIK
they relied on lawyers and accountants who reviewed the
PPMs and financial statements.
Jesenik and MacRitchie also attacked the credibility of
investors who testified to basing investment decisions on
verbal communications and marketing materials,
emphasizing that RIAs in particular had due diligence
obligations to their clients to read the PPMs and financial
statements. Using the PPMs and financial statements
extensively at trial, defense counsel cross-examined
investors and RIAs, some of whom admitted that these
documents conveyed information allegedly not disclosed by
the defendants or in marketing materials.
For example, Bean, an RIA who invested in September
2015, acknowledged that the Private Note PPM disclosed
that some funds could be used for operating expenses, and
accurately disclosed risks related to cash-flow issues and
insufficient or unavailable collateral, although he considered
these to be worst-case, hypothetical scenarios rather than “a
forecast or an expectation.” Bean also conceded that the
PPM disclosed ACF’s loans to affiliates and that the audited
financial statements disclosed that one of these loans was the
then-$120 million Holdings Note. And he further agreed
that he told his clients that Aequitas’s “balance sheet and
audit report looks great,” even though the financial
statements showed a net income loss of $15 million in 2014;
operating losses; and that a significant amount of ACF’s
income was from unrealized gains in equity investments.
Defense counsel also elicited testimony that Bean and
another RIA had been sued by their clients for due diligence
failures.
Addressing the latter end of the indictment period,
Jesenik argued that he was an honest businessman who
APPENDIX A
Page 25
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 25 of 43
USA V. JESENIK
25
believed in the company and kept fundraising so Aequitas
could survive the “bank run” brought on by the SEC
investigation and exacerbated by the illiquid nature of its
collateral. MacRitchie argued that he was outside the inner
circle and only became aware of Aequitas’s financial
problems in the summer of 2015. Both emphasized that they
supported changes to marketing materials once professionals
told them they were needed.
Rice’s defense was different. He was not alleged to have
become a co-conspirator until February 2015, when he
began receiving “cash dash” emails. Rice argued that any
misrepresentations he made to investors were the result of
misrepresentations the other defendants made to him.
Rice conceded that he was aware of the cash shortfalls
and, later, the Ponzi scheme concern, but thought these were
short-term accounting issues that could be fixed. He argued
that the PPMs and tear sheets existed before he arrived, and,
like his co-defendants, that he supported updating PPMs and
marketing materials in late 2015. Rice also argued that he
did not mislead the RIAs into investing in receivables,
because they had all already been pitched by Jesenik and
Oliver and had done their own due diligence.
D. Verdicts and Sentences
After a six-week trial, a jury returned verdicts finding all
defendants guilty of one count of conspiracy to commit mail
and wire fraud and 28 counts of wire fraud. Jesenik was also
found guilty of making a false statement on a loan
application. 7 Jesenik was sentenced to 168 months of
7
All defendants were acquitted of conspiracy to commit money
laundering.
APPENDIX A
Page 26
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 26 of 43
26
USA V. JESENIK
imprisonment; MacRitchie to 70 months; and Rice to 37
months. All timely appealed.
II.
We first address all defendants’ contention that they may
have been convicted on an invalid legal theory of fraud and
Rice’s challenge to the sufficiency of evidence.
A.
The elements of wire fraud in violation of 18 U.S.C.
§ 1343 are “(1) the existence of a scheme to defraud; (2) the
use of wire, radio, or television to further the scheme; and
(3) a specific intent to defraud.” United States v. Lindsey,
850 F.3d 1009, 1013 (9th Cir. 2017) (quoting United States
v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013)).8 A “scheme to
defraud” requires the use of “material falsehoods.” Id.
(quoting Neder v. United States, 527 U.S. 1, 20 (1999). “[A]
false statement is material if it has a natural tendency to
influence, or is capable of influencing, the decisionmaker to
whom the statement was addressed.” United States v.
Galecki, 89 F.4th 713, 737 (9th Cir. 2023) (cleaned up).
False statements can include “misleading half-truths,”
see, e.g., United States v. Lloyd, 807 F.3d 1128, 1153 (9th
8
The statute provides that a person commits wire fraud if:
having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property
by means of false or fraudulent pretenses,
representations, or promises, [he] transmits or causes
to be transmitted by means of wire, radio, or television
communication in interstate or foreign commerce, any
writings, signs, signals, pictures, or sounds for the
purpose of executing such scheme or artifice [. . .].
18 U.S.C. § 1343.
APPENDIX A
Page 27
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 27 of 43
USA V. JESENIK
27
Cir. 2015); Lustiger v. United States, 386 F.2d 132, 138 (9th
Cir. 1967), representations that are partly true but misleading
“because of [the defendant’s] failure to state additional or
qualifying matter,” Universal Health Servs., Inc. v. United
States ex rel. Escobar, 579 U.S. 176, 188 (2016) (cleaned
up). Even in the absence of a false statement, a conviction
can be based on a failure to disclose material facts. See
United States v. Shields, 844 F.3d 819, 822 (9th Cir. 2016).
But wire fraud can be premised on such an omissions theory
only if the defendant had a special “trusting relationship”
with the victim. Id. at 823. That relationship is not required
in fraud cases premised on misrepresentations, including
half-truths. See Lloyd, 807 F.3d at 1153; United States v.
Benny, 786 F.2d 1410, 1418 (9th Cir. 1986).
The defendants contend that although they were charged
in the operative indictment only with engaging in “material
misrepresentations and misleading half-truths,” the
government really presented an omissions theory at trial. 9
They argue that the district court therefore erred in denying
proposed instructions requiring proof of a trusting
relationship.
“We review de novo whether the Government’s theory
of fraud at trial was legally valid.” United States v.
Milheiser, 98 F.4th 935, 941 (9th Cir. 2024). “[A] general
verdict that may rest on a legally invalid theory” cannot
stand unless we are convinced beyond a reasonable doubt
that presentation of the invalid theory “did not contribute to
the jury’s verdict.” United States v. Yates, 16 F.4th 256,
269–70 (9th Cir. 2021) (cleaned up). Such an error is not
9
The original indictment also alleged the defendants engaged in
“omissions of material facts.” This allegation was dropped in a
superseding indictment.
APPENDIX A
Page 28
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 28 of 43
28
USA V. JESENIK
harmless even “where the verdict is supportable on [another]
ground.” Yates v. United States, 354 U.S. 298, 312 (1957).
B.
The defendants assert that the government improperly
“focused [its case] on non-disclosure alone, rather than
whether omitted information made any affirmative
statement materially misleading.”
They cite the
government’s questioning of investors about whether they
would have invested had they known certain undisclosed
facts and the government’s discussion of that testimony in
closing argument.
They object particularly to the government’s statement
in closing argument that an RIA was “defrauded” because:
Brian Rice failed to disclose liquidity
problems at Aequitas. He failed to disclose
the SEC investigation, the payroll funding, or
that the general counsel of Aequitas had
raised concerns in early September that the
firm was running a Ponzi scheme.
To the extent the defendants argue that it was error for
the district court to allow the government to ask investors
“would you have invested had you known” questions, or to
discuss what the defendants did not disclose, we disagree. It
is well-established that such evidence is probative of the
materiality of a half-truth or misrepresentation. See United
States v. Laurienti, 611 F.3d 530, 549 (9th Cir. 2010)
(approving “[i]f you had known” questions).
And the government did not argue that omissions alone
were sufficient to prove fraud or present that theory to the
jury. Rather, the government elicited extensive testimony
APPENDIX A
Page 29
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 29 of 43
USA V. JESENIK
29
about the relevant affirmative statements when questioning
witnesses about non-disclosures, and stressed these
affirmative statements in closing argument. For example,
RIA Jeff Sica, whose 70 clients had invested a total of $32
million in Private Note, testified that he became concerned
about the security of those investments after Aequitas
refused to redeem a client’s $10 million note when it was
due in April 2015, and only did so two months later.
Sica had previously been assured by Rice that Aequitas
“was very secure; that they had plenty of assets; that business
was great.” Later, when Sica asked why the redemption was
late, Rice told him: “Well, we don’t do a good job managing
our liquidity. So it is not a matter that there are not assets;
it’s [that] the leadership needs to change.” Around the time
of a due diligence visit in October 2015, after Sica had
requested redemption of all his clients’ notes, he told Rice
he suspected Aequitas was a Ponzi scheme, and Rice denied
it. He also testified that Rice continued to pitch him on
Aequitas products and tried to persuade him to delay
redemptions into November 2015. At trial, the government
asked Sica about the facts Rice failed to disclose in the
context of this testimony, and in closing argument, the
government’s comments about what Rice “failed to
disclose” followed discussion of Sica’s interactions with
Rice in the fall of 2015. Thus, the government sufficiently
tethered Rice’s non-disclosures to his affirmative
statements.
C.
The defendants also claim that the district court erred in
denying three proposed instructions: (1) “[a] nondisclosure [
] can support a [wire] fraud charge only when there exists an
independent duty that has been breached by the person so
APPENDIX A
Page 30
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 30 of 43
30
USA V. JESENIK
charged”; (2) “omissions alone are not sufficient to support
a charge of mail or wire fraud”; and (3) “[a]n omission alone
– absent a connection to a half-truth – does not constitute a
misrepresentation.”
“In reviewing jury instructions, the relevant inquiry is
whether the instructions as a whole are misleading or
inadequate to guide the jury’s deliberation.” Lloyd, 807 F.3d
at 1164 (quoting United States v. Dixon, 201 F.3d 1223,
1230 (9th Cir. 2000)). We determine whether an instruction
misstates the law de novo but review its “language and
formulation” for abuse of discretion. United States v.
Rodriguez, 971 F.3d 1005, 1012 (9th Cir. 2020).
Instructions are evaluated “as a whole, and in context,” id.,
and we afford the trial judge “substantial latitude so long as
the instructions fairly and adequately covered the issues
presented,” United States v. Moe, 781 F.3d 1120, 1127 (9th
Cir. 2015) (quoting United States v. Bauer, 84 F.3d 1549,
1560 (9th Cir. 1996)).
At the defendants’ request, the district court defined
“half-truth” in an instruction drawn directly from Universal
Health Servs., Inc., 579 U.S. at 188, and Ninth Circuit Model
Criminal Jury Instruction 15.35. The instruction required the
government to prove that a defendant “knowingly
participated in a scheme or plan to defraud, or a scheme or
plan for obtaining money by means of a false or fraudulent
representations,” and then stated:
Deceitful statements of half-truths may
constitute false or fraudulent representations.
A half-truth is a representation that states the
APPENDIX A
Page 31
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 31 of 43
USA V. JESENIK
31
truth only so far as it goes, while omitting
critical qualifying information.
This instruction fairly stated the law. Had the defendants
been charged under an omissions theory, the government
would have been required to show a relationship giving rise
to a duty to disclose. See Shields, 844 F.3d at 822–23;
United States v. Spanier, 744 Fed. App’x 351, 353–54 (9th
Cir. 2018). But these defendants were not so charged, and
the district court therefore did not err in denying the
defendants’ proposed “independent duty” instruction. See
United States v. Farrace, 805 Fed. App’x 470, 473 (9th Cir.
2020). For the same reason, the district court did not abuse
its discretion in denying the proposed instruction that
“omissions alone are not sufficient to support a charge of
mail or wire fraud” and that “[a]n omission alone – absent a
connection to a half-truth – does not constitute a
misrepresentation.”
Moreover, the district court instructed the jury shortly
after the relevant portion of the government’s closing
argument that because the indictment only alleged
misrepresentations and half-truths, the argument about what
the defendants failed to disclose was only relevant to
whether the defendants made any “deceitful half-truths.”
Using language nearly identical to the defendants’ proposed
instruction, the court then told the jury that “[i]f all we have
is an omission or a failure to disclose, that’s not actionable
here.” That instruction fairly covered the substance of the
defendants’ proposed instruction.
D.
“Puffing concerns expressions of opinion, as opposed to
the knowingly false statements of fact which the law
APPENDIX A
Page 32
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 32 of 43
32
USA V. JESENIK
proscribes.” United States v. Tarallo, 380 F.3d 1174, 1191
(9th Cir. 2004), amended, 413 F.3d 928 (9th Cir. 2005)
(cleaned up). The defendants contend that their statements
about Aequitas’s financial health were merely “generic
claims of financial success” or “subjective enthusiasm and
puffing.” We are not persuaded.
The defendants highlight the government’s emphasis in
closing argument on investors’ testimony that they were
misled by the defendants’ statements that Aequitas was “just
doing outstanding” and “growing very rapidly,” focusing on
a portion of the argument that followed the court’s
supplemental instructions about half-truths and omissions:
All of those things that they were
complaining about in that testimony that I
summarized for you, those were omissions in
service of the half-truths that, “Hey,
everything at Aequitas is going great.”
But given the severe financial straits that Aequitas was in
when these statements were made and the defendants’
knowledge of the company’s finances, a jury could well find
them to be “knowingly false statements of fact.” Tarallo,
380 F.3d at 1191; see United States v. Autuori, 212 F.3d 105,
118–19 (2d Cir. 2000) (finding that a jury could infer that
the defendant’s representations that PPM forecasts were
“good” and “credible”; that a partnership project was “safe”;
and that his prestigious accounting firm “stood behind the
numbers” were not puffing, but rather “representations that
contradicted his honest view”).
The defendants also claim that non-disclosures about
liquidity problems, difficulty paying operating expenses,
and an SEC investigation did not render general statements
APPENDIX A
Page 33
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 33 of 43
USA V. JESENIK
33
about Aequitas’s financial health “half-truths” because they
were insufficiently “tethered” to those claims or did not
“pertain[] to the same topic.” They cite the Supreme Court’s
“classic example of an actionable half-truth”: “the seller who
reveals that there may be two new roads near a property he
is selling, but fails to disclose that a third potential road
might bisect the property.” Universal Health Servs., 579
U.S. at 188–89. In the context of this case, however, the
defendants’ affirmative representations that Aequitas was in
good financial health, made while soliciting purportedly
secure investments in income-generating assets, have a plain
nexus to non-disclosures about liquidity problems, difficulty
paying operating expenses, and an SEC investigation
concerning potential misuse of investor funds. Whether
those representations were misleading half-truths was
therefore properly a question for the jury.
E.
Rice challenges the sufficiency of evidence supporting
his conviction. We must decide whether the evidence,
viewed in the light most favorable to the government, is
sufficient for a “rational trier of fact” to have “found the
essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
evidence in this case satisfies that forgiving standard.
For example, four RIAs testified that Rice personally
solicited them to invest in receivables during 2015 through
IOF II and Private Note. Starting in February 2015,
however, Rice had received “cash dash” emails indicating
unequivocally that these funds would in fact be used for
payroll and to repay prior investors. And, although
Aequitas’s general counsel told Rice in September 2015 that
Aequitas could be engaging in a Ponzi scheme, Rice
APPENDIX A
Page 34
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 34 of 43
34
USA V. JESENIK
continued to facilitate investor due diligence visits and
solicit investments to meet ongoing urgent cash shortfalls
without disclosing the actual uses of investors’ funds, the
SEC investigation, or that the investments were not secure.
III.
We next address the defendants’ contentions that they
were precluded from presenting a complete defense. These
arguments again center on disclosures in the PPMs and
audited financial statements.
A.
1.
The defendants first assert that the district court erred in
admitting any evidence of representations in sales pitches
and marketing materials, and evidence that investors relied
on these representations. They argue that disclaimers of
reliance in the subscription agreements and PPMs rendered
any representations outside those documents immaterial.10
They also argue that verbal representations and marketing
materials could not be “objectively” material to Aequitas’s
“accredited” investors given the written disclosures,
especially to RIAs with fiduciary duties to their clients.
We disagree. “[T]he focus of the mail fraud statute, like
any criminal statute, is on the violator.” United States v.
10
The Private Note and IOF II PPMs both stated:
No person has been authorized in connection with this
Offering to give any information or make any
representations other than those contained in this
Memorandum or the Transaction documents and, if
given or made, such information or representations
must not be relied upon as having been authorized by
the Company.
APPENDIX A
Page 35
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 35 of 43
USA V. JESENIK
35
Weaver, 860 F.3d 90, 95 (2d Cir. 2017) (per curiam)
(cleaned up). Proof of a scheme to defraud does not require
showing that a victim relied on the defendant’s falsehoods;
it is sufficient that falsehoods were material. Lindsey, 850
F.3d at 1014. Materiality, as opposed to reliance, is an
objective measure of a representation’s “tendency to
influence” “the decisionmaker to whom [it] was addressed.”
Galecki, 89 F.4th at 737 (cleaned up); see also Lindsey, 850
F.3d at 1013–14.
Whether a representation has a tendency to influence a
decisionmaker is not the same question as whether the
decisionmaker would be justified in relying on it. Justifiable
reliance is relevant to civil liability for fraud, but not to
criminal liability. See Neder, 527 U.S. at 24–25; see also
Weaver, 860 F.3d at 95. Thus, consistent with other circuits
that have addressed the issue, see, e.g., Weaver, 860 F.3d at
95–96; United States v. Lucas, 516 F.3d 316, 339–40 (5th
Cir. 2008); United States v. Ghilarducci, 480 F.3d 542, 547
(7th Cir. 2007), we hold that contractual disclaimers do not
render immaterial other representations in criminal wire
fraud prosecutions.
For the same reason, we reject the argument that the
defendants’ representations in sales pitches and marketing
materials were immaterial to “accredited” investors. To be
sure, “materiality is judged in relation to the persons to
whom the statement is addressed.” Galecki, 89 F.4th at 737
(cleaned up). But “the wire fraud statute protects the naive
as well as the worldly-wise.” United States v. Ciccone, 219
F.3d 1078, 1083 (9th Cir. 2000) (cleaned up). Materiality is
a question of fact for the jury, see United States v. Gaudin,
28 F.3d 943, 944 (9th Cir. 1994) (en banc), aff'd, 515 U.S.
506 (1995), and the district court properly left the materiality
issue to the jury.
APPENDIX A
Page 36
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 36 of 43
36
USA V. JESENIK
Nor did the district court err in admitting evidence of
investors’ reliance on these representations. Although not
dispositive, a victim’s reliance on the defendant’s falsehoods
is probative of materiality. See Phillips v. United States, 356
F.2d 297, 308 (9th Cir. 1965) (“Evidence that appellants’
sales materials did in fact deceive persons to whom it was
directed, causing them to rely upon it, tends to show that
such materials were of the nature charged.”).
2.
The defendants also argue that they were entitled to this
proposed jury instruction on “objective” materiality:
Whether or not a statement is capable of
influencing the decision-making body to
which it was addressed is evaluated
objectively.
In considering whether a
statement is material, you should consider the
context in which the communications
occurred, including any evidence about
industry practice, agreements between the
parties, the parties’ professional status or
accreditations, and other information known
to the parties at the time the allegedly false
statements were made. The government does
not need to prove that the statement actually
influenced any decisionmaker.
We find no abuse of discretion in the district court’s
denial of this instruction. The court accurately instructed the
jury that:
An oral or written statement is material if it
has a natural tendency to influence, or was
APPENDIX A
Page 37
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 37 of 43
USA V. JESENIK
37
capable of influencing, a person to part with
money. Neither proof of reliance on a false
statement nor actual harm is needed to show
materiality.
The jury was also instructed that “[i]n determining whether
a scheme to defraud exists, you may consider not only a
defendant’s words and statements, but also the
circumstances in which those words and statements are used,
considered as a whole.” See Ninth Circuit Model Criminal
Jury Instruction 15.35. These instructions fairly and
adequately covered whether representations in sales pitches
and marketing materials were material.
B.
The defendants next assert that the jury was prevented
from considering defense theories about elements other than
materiality. We reject those claims.
1.
The district court granted a government pretrial motion
to preclude evidence or argument that investors should have
“exercised more due diligence or skepticism in their dealings
with Aequitas” and that investors did not actually rely on the
co-conspirators’ allegedly false statements. The defendants
argue that the court then improperly limited their crossexamination of investors about the contents of the relevant
disclosures and their “failure to read, understand, or
appreciate” them.
To the extent that the defendants challenge the district
court’s preclusion of evidence about investor negligence or
non-reliance, their argument is foreclosed by Lindsey, a case
involving mortgage fraud. We held there that “a bright-line
APPENDIX A
Page 38
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 38 of 43
38
USA V. JESENIK
rule against evidence of individual lender behavior to
disprove materiality is both a reasonable and necessary
protection” because “evidence of individual lender behavior
can easily touch on lender negligence, intentional disregard,
or lack of reliance—none of which is a defense to mortgage
fraud.” 850 F.3d at 1017.11 We find no reason to adopt a
different rule in this case, simply because the loans gave rise
to promissory notes instead of mortgages.
The defendants also argue that evidence of investor
negligence or non-reliance is admissible to impeach the
investor “by confronting the investor with contradictory
information provided to him by the defendants in the PPM,”
and to show whether the defendants had an intent to defraud.
The defendants cite the cross-examination of Bob
Zamarripa, who invested $12 million with Aequitas.
Zamarripa testified that he was misled by Jesenik’s
assurances that “a hundred percent” of his money would go
to secure health care receivables and not to pay other
investors. During cross-examination, Zamarripa testified
that he had not read the subscription agreements and PPMs.
The court admitted these documents, and allowed defense
counsel to show Zamarripa one of the subscription
agreements and ask whether it instructed him to read the
PPM. However, the court sustained a series of relevancy
objections when defense counsel attempted to ask more
questions about the contents of the documents, given
Zamarripa’s admission that he had not read them.
11
Instead, defendants may seek to disprove materiality through generally
accepted standards, id. at 1016, because “[t]he way the entire market has
historically treated a statement or requirement says a lot about that
statement or requirement’s natural capacity to influence a decision by
market participants,” id. at 1017.
APPENDIX A
Page 39
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 39 of 43
USA V. JESENIK
39
These evidentiary rulings did not prevent the defendants
from urging legitimate disclosure-based defense theories.
The court admitted PPMs, subscription agreements, and
audited financials, and several investors admitted that those
documents were material to their decisions. The court also
admitted defense expert testimony about these documents,
and allowed extensive questioning of investors who had read
them about their contents.
Evidence of Aequitas investors’ lengthy experience in
the financial industry—and RIAs’ due diligence
obligations—was also admitted, as was testimony that some
RIAs’ former clients blamed them for their financial losses,
and that two had been sued for negligence. The defendants
were allowed to cross-examine investors about their claims
that they had not read the PPMs and that they were unaware
of Aequitas’s financial difficulties. Over government
objections, the district court allowed defense counsel to ask
investors questions relevant to credibility “even if it may
have the secondary effect of implying that there was
inadequate due diligence.” The court also admitted
testimony about the defendants’ reliance on lawyers,
accountants, and compliance professionals, and their support
for revisions to the PPMs and tear sheets in response to those
professionals’ concerns.
2.
The district court’s materiality instruction stated, in
relevant part:
It is not a defense to a charge of mail or wire
fraud or a charge of conspiracy to commit
mail or wire fraud that an investor or
registered investment advisor may have been
APPENDIX A
Page 40
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 40 of 43
40
USA V. JESENIK
gullible, careless, naive, or negligent or even
that an investor or registered investment
advisor
intentionally
disregarded
information.
The defendants argue that the instruction “suggested that
disclosures could not be considered as to any issue” and that
in the absence of “an accompanying admonition that truthful
disclosures could be considered in connection with good
faith or lack of a scheme to defraud, the instruction
fundamentally misled the jury.”
We disagree. The instruction is drawn from Lindsey, in
which we held that “negligence is not a defense to wire
fraud” and “intentional disregard of relevant information is
not a defense to wire fraud.” 850 F.3d at 1019. The
defendants attempt to distinguish Lindsey because it focused
on whether lenders’ disregard of relevant information was
admissible to disprove the materiality of the defendant’s
false statements, see id. at 1015–16, while they wished to use
such evidence to argue other defenses.
To the extent the defendants argue that “if an investor
felt misled, it was because the investor . . . chose to disregard
part of the complete representation,” they effectively seek to
urge that Aequitas’s investors were negligent. As Lindsey
emphasizes, “negligence is not a defense to wire fraud.” Id.
at 1015, 1019.
More importantly, the challenged instruction did not
indicate that the written disclosures were irrelevant. Indeed,
the defendants were permitted to argue that the written
disclosures were accurate, material to investors, and
indicative of the defendants’ good faith. In closing, Jesenik
and MacRitchie both argued extensively that any alleged
APPENDIX A
Page 41
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 41 of 43
USA V. JESENIK
41
misrepresentations did not qualify as half-truths in light of
the disclosures. All defendants robustly argued that their
provision of written disclosures to investors was evidence of
good faith. And the defendants were allowed to attack the
investors’ credibility.
The jury was instructed that “[i]n determining whether a
scheme to defraud exists, you may consider not only a
defendant’s words and statements, but also the
circumstances in which those words and statements are used,
considered as a whole.” See Ninth Circuit Model Criminal
Jury Instruction 15.35. Taken together with the court’s
instructions on half-truths, materiality, good faith, fraudulent
intent, and witness credibility, the “instructions, in their
entirety, adequately cover[ed] th[e] defense theory.” Moe,
781 F.3d at 1127 (cleaned up).
3.
In its rebuttal, the government stated:
A few things about the jury instructions. You
see here “negligence by the investors and the
RIAs is not a defense to fraud.” So
allegations that they should have done this
and that they should have done that are not
allegations [sic] to fraud if you find that the
defendants acted with the intent to defraud.
You have other jury instructions. But the oral
statements—in considering what evidence
has been promoting the fraud, the oral
statements by Mr. Jesenik, by Mr. Oliver, by
Mr. Rice. The investor/RIA testimony about
the tear sheets, the pitch decks that contain
APPENDIX A
Page 42
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 42 of 43
42
USA V. JESENIK
false information. The cooperator testimony
we provided and the written documentation.
The PPM—a lot of evidence about the PPM
and whether they are in support of a reliance
defense or good faith on the part of the
defendants. Members of the jury, I suggest
that’s not a proper defense. If you find that
these defendants—who individually have to
be assessed—but if you find that they
approached or promoted—in approaching
investors to give them money under false
pretenses, “We are doing great; your money
is going for receivables,” knowing that it is
not, that’s fraud. The crime has been
completed. And as Jessica Cataudella said,
“You can’t disclose your way out of fraud,”
meaning you can’t use the PPM, which has
50 pages of legalese, footnotes, warnings,
buzzers, and bells that lawyers write and the
SEC monitors, it’s important, no doubt, but
it’s not important to this fraud because—
After MacRitchie’s counsel objected that the prosecutor
misstated the burden of proof, the court instructed the jury
that intent to defraud and good faith were defined in the jury
instructions.
The defendants assert that they were prejudiced by the
government’s statement in closing that “you can’t disclose
your way out of fraud.” They claim that, like the court’s
materiality instruction, this argument improperly indicated
that jurors could not consider whether their purportedly
truthful written disclosures cured other alleged
misrepresentations or demonstrated good faith. Relatedly,
APPENDIX A
Page 43
Case: 23-2282, 09/05/2025, DktEntry: 101.1, Page 43 of 43
USA V. JESENIK
43
the defendants also contend that the district court erred in
denying a proposed addition to the court’s instruction on the
definition of a half-truth: “If the speaker does provide that
critical qualifying information, the duty to speak is satisfied
and the statement does not amount to a misrepresentation.”
We reject the argument.
The government’s argument accurately recounted the
testimony of Cataudella, the former Aequitas compliance
officer, in which she said that “you can’t disclose away
fraud” was a common phrase in the compliance industry.12
In context, the argument was not improper, because whether
the defendants’ written disclosures sufficed to make alleged
misrepresentations not misleading was a question for the
jury, and the jury was properly instructed on how to consider
evidence of those disclosures. Moreover, the court gave a
prompt curative instruction after the challenged statements,
and “[j]urors are presumed to follow the court’s
instructions.” United States v. Reyes, 660 F.3d 454, 468 (9th
Cir. 2011).
IV.
For the reasons above, and those in the concurrently filed
memorandum disposition, we affirm the judgments of
conviction.
AFFIRMED.
12
At trial, MacRitchie unsuccessfully objected to this statement as a lay
opinion. MacRitchie does not pursue this argument on appeal.
APPENDIX A
Page 44
Case: 23-2282, 09/05/2025, DktEntry: 101.2, Page 1 of 4
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Information Regarding Judgment and Post-Judgment Proceedings
Judgment
• This Court has filed and entered the attached judgment in your case. Fed. R.
App. P. 36. Please note the filed date on the attached decision because all of
the dates described below run from that date, not from the date you receive
this notice.
Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)
• The mandate will issue 7 days after the expiration of the time for filing a
petition for rehearing or 7 days from the denial of a petition for rehearing,
unless the Court directs otherwise. To file a motion to stay the mandate, file
it electronically via the appellate electronic filing system or, if you are a pro
se litigant or an attorney with an exemption from the electronic filing
requirement, file one original motion on paper.
Petition for Panel Rehearing and Petition for Rehearing En Banc (Fed. R.
App. P. 40; 9th Cir. R. 40-1 to 40-4)
(1) Purpose
A. Panel Rehearing:
• A party should seek panel rehearing only if one or more of the following
grounds exist:
A material point of fact or law was overlooked in the decision;
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
An apparent conflict with another decision of the Court was not
addressed in the opinion.
• Do not file a petition for panel rehearing merely to reargue the case.
B. Rehearing En Banc
• A party should seek en banc rehearing only if one or more of the
following grounds exist:
Consideration by the full Court is necessary to secure or maintain
uniformity of the Court’s decisions; or
The proceeding involves a question of exceptional importance; or
APPENDIX A
Page 45
Case: 23-2282, 09/05/2025, DktEntry: 101.2, Page 2 of 4
The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a
rule of national application in which there is an overriding need for
national uniformity.
(2) Deadlines for Filing:
• A petition for rehearing or rehearing en banc must be filed within 14 days
after entry of judgment. Fed. R. App. P. 40(d).
• If the United States or an agency or officer thereof is a party in a civil case,
the time for filing a petition for rehearing is 45 days after entry of judgment.
Fed. R. App. P. 40(d). The deadlines for seeking reconsideration of a nondispositive order are set forth in 9th Cir. R. 27-10(a)(2).
• If the mandate has issued, the petition for rehearing should be accompanied
by a motion to recall the mandate.
• See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due
date).
• An order to publish a previously unpublished memorandum disposition
extends the time to file a petition for rehearing to 14 days after the date of the
order of publication or, in all civil cases in which the United States or an
agency or officer thereof is a party, 45 days after the date of the order of
publication. 9th Cir. R. 40-4.
(3) Statement of Counsel
• A petition should contain an introduction stating that, in counsel’s judgment,
one or more of the situations described in the “purpose” section above exist.
The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
• The petition shall not exceed 15 pages unless it complies with the alternative
length limitations of 4,200 words or 390 lines of text.
• The petition must be accompanied by a copy of the panel’s decision being
challenged.
• An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
• If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
APPENDIX A
Page 46
Case: 23-2282, 09/05/2025, DktEntry: 101.2, Page 3 of 4
• The petition or answer must be accompanied by a Certificate of Compliance
found at Form 11, available on our website at www.ca9.uscourts.gov under
Forms.
• Attorneys must file the petition electronically via the appellate electronic
filing system. No paper copies are required unless the Court orders
otherwise. If you are a pro se litigant or an attorney exempted from using the
appellate ECF system, file one original petition on paper. No additional
paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)
• The Bill of Costs must be filed within 14 days after entry of judgment.
• See Form 10 for additional information, available on our website at
www.ca9.uscourts.gov under Forms.
Attorneys Fees
• Ninth Circuit Rule 39-1 describes the content and due dates for attorneys
fees applications.
• All relevant forms are available on our website at www.ca9.uscourts.gov
under Forms or by telephoning (415) 355-8000.
Petition for a Writ of Certiorari
• The petition must be filed with the Supreme Court, not this Court. Please
refer to the Rules of the United States Supreme Court at
www.supremecourt.gov.
Counsel Listing in Published Opinions
• Please check counsel listing on the attached decision.
• If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan,
MN 55123 (Attn: Maria Evangelista, maria.b.evangelista@tr.com);
and electronically file a copy of the letter via the appellate
electronic filing system by using the Correspondence filing
category, or if you are an attorney exempted from electronic filing,
mail the Court one copy of the letter.
APPENDIX A
Page 47
Case: 23-2282, 09/05/2025, DktEntry: 101.2, Page 4 of 4
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 10. Bill of Costs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf
9th Cir. Case Number(s)
Case Name
The Clerk is requested to award costs to (party name(s)):
I swear under penalty of perjury that the copies for which costs are requested
were actually and necessarily produced, and that the requested costs were
actually expended.
Signature
Date
(use “s/[typed name]” to sign electronically-filed documents)
REQUESTED
(each column must be completed)
No. of
Pages per
Cost per
TOTAL
Copies
Copy
Page
COST
COST TAXABLE
DOCUMENTS / FEE PAID
Excerpts of Record*
$
$
Principal Brief(s) (Opening Brief;
Answering Brief; 1st, 2nd , and/or 3rd Brief
on Cross-Appeal; Intervenor Brief)
$
$
Reply Brief / Cross-Appeal Reply Brief
$
$
Supplemental Brief(s)
$
$
Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee /
Appeal from Bankruptcy Appellate Panel Docket Fee
$
TOTAL: $
*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) +
Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as:
No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10);
TOTAL: 4 x 500 x $.10 = $200.
APPENDIX A
Page 48
Case: 23-2282, 09/05/2025, DktEntry: 102.1, Page 1 of 6
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
SEP 5 2025
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
U.S. COURT OF APPEALS
No. 23-2282
D.C. No.
3:20-cr-00228-SI-1
Plaintiff - Appellee,
MEMORANDUM*
v.
ROBERT J. JESENIK,
Defendant - Appellant.
UNITED STATES OF AMERICA,
No. 23-2308
D.C. No.
3:20-cr-00228-SI-3
Plaintiff - Appellee,
v.
ANDREW N. MACRITCHIE, AKA
Andrew MacRitchie,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 23-2316
D.C. No.
3:20-cr-00228-SI-4
v.
BRIAN K. RICE,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
APPENDIX A
Page 49
Case: 23-2282, 09/05/2025, DktEntry: 102.1, Page 2 of 6
Defendant - Appellant.
UNITED STATES OF AMERICA,
No. 24-5402
D.C. No.
3:20-cr-00228-SI-3
Plaintiff - Appellee,
v.
ANDREW N. MACRITCHIE, AKA
Andrew MacRitchie,
Defendant - Appellant.
UNITED STATES OF AMERICA,
No. 24-5404
D.C. No.
3:20-cr-00228-SI-1
Plaintiff - Appellee,
v.
ROBERT J. JESENIK,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted April 2, 2025
San Francisco, California
Before: HURWITZ, KOH, and JOHNSTONE, Circuit Judges.
Robert Jesenik, Andrew MacRitchie, and Brian Rice appeal their convictions
for one count of conspiracy to commit mail and wire fraud in violation of 18 U.S.C.
§ 1349 and 28 counts of substantive wire fraud in violation of 18 U.S.C. § 1343.
2
APPENDIX A
Page 50
23-2282
Case: 23-2282, 09/05/2025, DktEntry: 102.1, Page 3 of 6
Jesenik also appeals his conviction for one count of making a false statement on a
loan application in violation of 18 U.S.C. § 1014. For the reasons below and in a
concurrently filed opinion, we affirm.
1.
The district court did not abuse its discretion in denying severance.
There is a “well-established . . . preference for joint trials where defendants have
been jointly indicted.” United States v. Hernandez–Orellana, 539 F.3d 994, 1001
(9th Cir. 2008). Severance should be granted “only if there is a serious risk that a
joint trial would compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United
States, 506 U.S. 534, 539 (1993). Even if such a risk exists, limiting instructions
and other measures “often will suffice to cure” it. Id.
Attempts by co-defendants to exculpate themselves by inculpating one
another do not mandate severance unless a defendant “show[s] that the core of the
codefendant’s defense is so irreconcilable with the core of his own defense that the
acceptance of the codefendant’s theory by the jury precludes acquittal of the
defendant.” United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996).
Although Rice claimed to have been misled by Jesenik and MacRitchie, Rice also
asserted, as did the other defendants, that he was not involved in a conspiracy or
scheme to defraud.
A jury accepting Rice’s defense would therefore not be
precluded from acquitting the other defendants.
3
APPENDIX A
Page 51
23-2282
Case: 23-2282, 09/05/2025, DktEntry: 102.1, Page 4 of 6
Moreover, the district court took appropriate measures to mitigate any undue
prejudice caused by joinder. After Rice’s opening statement accused Jesenik of
deception, the court instructed the jury that opening statements are not evidence and
each defendant’s guilt must be considered separately. Nor did the court abuse its
discretion by allowing rebuttal arguments by Jesenik and MacRitchie. This was an
appropriate form of “other relief” from the potential prejudice of joinder under
Federal Rule of Criminal Procedure 14(a). See United States v. Della Porta, 653
F.3d 1043, 1051 n.3 (9th Cir. 2011) (noting that Rule 29.1 “neither sanctions nor
prohibits the use of supplemental closing arguments in all cases”). Rice was not
unfairly prejudiced by the rebuttals: neither Jesenik nor MacRitchie attempted to
inculpate Rice, and Jesenik’s counsel argued repeatedly that Rice was not guilty.
2.
The district court did not abuse its discretion in denying a mistrial after
the prosecutor’s opening statement commented on cooperating co-conspirators’
guilty pleas.
Even assuming that the prosecutor improperly implied that the
defendants were guilty by association, see United States v. Halbert, 640 F.2d 1000,
1004 (9th Cir. 1981), the pleas were admissible for “evaluating witness credibility,”
id., and the district court repeatedly instructed the jury that they were not evidence
of any defendant’s guilt, see id. at 1006–07.
3.
The district court did not abuse its discretion by allowing several
investors with significant experience in the finance industry to testify that they would
4
APPENDIX A
Page 52
23-2282
Case: 23-2282, 09/05/2025, DktEntry: 102.1, Page 5 of 6
not have invested had they known Aequitas was using their funds to pay prior
investors rather than to buy new assets. This testimony was “rationally based on”
the perceptions of these witnesses, Fed. R. Evid. 701(a), given their experience in
the finance industry, and helpful to the jury in determining facts at issue, see Fed. R.
Evid. 701(b). The testimony did not run afoul of Federal Rule of Evidence 701(c)
because the witnesses accurately used “Ponzi scheme” to mean a business that uses
new investor funds to pay prior investors and did not purport to be giving a technical
or legal opinion.1
4.
The district court also did not abuse its discretion in admitting expert
testimony that Aequitas had “Ponzi-like features” and “badges of fraud.” The expert
did not opine on an ultimate issue of law, because the defendants were not charged
with running a Ponzi scheme, and the court so reminded the jury. The jury was also
properly instructed that it should rely on the court’s definition of fraud, and that the
witness was not opining whether the defendants had fraudulent intent or any fraud
had occurred. See Fed. R. Evid. 704(b).
5.
The district court did not abuse its discretion in admitting testimony by
Jesenik’s longtime executive assistant that Aequitas’s chief financial officer would
not have signed a loan application without Jesenik’s knowledge and approval. The
1
On the one occasion that a lay witness began to provide a legal definition of the
term “Ponzi scheme,” the district court properly halted the testimony and instructed
the jury not to “take any legal definitions from” the witness.
5
APPENDIX A
Page 53
23-2282
Case: 23-2282, 09/05/2025, DktEntry: 102.1, Page 6 of 6
witness had extensive first-hand observations of Jesenik’s role in the company and
his relationship with the former CFO, see Fed. R. Evid. 701(a), and this information
was not otherwise available to the jury, cf. United States v. Henke, 222 F.3d 633,
641–42 (9th Cir. 2000).
6.
The district court did not abuse its discretion in declining to give
advice-of-counsel and advice-of-accountants instructions.
The district court’s
general good-faith instruction “subsume[d]” those instructions. United States v.
Bush, 626 F.3d 527, 540 (9th Cir. 2010).
AFFIRMED.
6
APPENDIX A
Page 54
23-2282
Case: 23-2282, 09/05/2025, DktEntry: 102.2, Page 1 of 4
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Information Regarding Judgment and Post-Judgment Proceedings
Judgment
• This Court has filed and entered the attached judgment in your case. Fed. R.
App. P. 36. Please note the filed date on the attached decision because all of
the dates described below run from that date, not from the date you receive
this notice.
Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)
• The mandate will issue 7 days after the expiration of the time for filing a
petition for rehearing or 7 days from the denial of a petition for rehearing,
unless the Court directs otherwise. To file a motion to stay the mandate, file
it electronically via the appellate electronic filing system or, if you are a pro
se litigant or an attorney with an exemption from the electronic filing
requirement, file one original motion on paper.
Petition for Panel Rehearing and Petition for Rehearing En Banc (Fed. R.
App. P. 40; 9th Cir. R. 40-1 to 40-4)
(1) Purpose
A. Panel Rehearing:
• A party should seek panel rehearing only if one or more of the following
grounds exist:
A material point of fact or law was overlooked in the decision;
A change in the law occurred after the case was submitted which
appears to have been overlooked by the panel; or
An apparent conflict with another decision of the Court was not
addressed in the opinion.
• Do not file a petition for panel rehearing merely to reargue the case.
B. Rehearing En Banc
• A party should seek en banc rehearing only if one or more of the
following grounds exist:
Consideration by the full Court is necessary to secure or maintain
uniformity of the Court’s decisions; or
The proceeding involves a question of exceptional importance; or
APPENDIX A
Page 55
Case: 23-2282, 09/05/2025, DktEntry: 102.2, Page 2 of 4
The opinion directly conflicts with an existing opinion by another
court of appeals or the Supreme Court and substantially affects a
rule of national application in which there is an overriding need for
national uniformity.
(2) Deadlines for Filing:
• A petition for rehearing or rehearing en banc must be filed within 14 days
after entry of judgment. Fed. R. App. P. 40(d).
• If the United States or an agency or officer thereof is a party in a civil case,
the time for filing a petition for rehearing is 45 days after entry of judgment.
Fed. R. App. P. 40(d). The deadlines for seeking reconsideration of a nondispositive order are set forth in 9th Cir. R. 27-10(a)(2).
• If the mandate has issued, the petition for rehearing should be accompanied
by a motion to recall the mandate.
• See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the due
date).
• An order to publish a previously unpublished memorandum disposition
extends the time to file a petition for rehearing to 14 days after the date of the
order of publication or, in all civil cases in which the United States or an
agency or officer thereof is a party, 45 days after the date of the order of
publication. 9th Cir. R. 40-4.
(3) Statement of Counsel
• A petition should contain an introduction stating that, in counsel’s judgment,
one or more of the situations described in the “purpose” section above exist.
The points to be raised must be stated clearly.
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
• The petition shall not exceed 15 pages unless it complies with the alternative
length limitations of 4,200 words or 390 lines of text.
• The petition must be accompanied by a copy of the panel’s decision being
challenged.
• An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
• If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
APPENDIX A
Page 56
Case: 23-2282, 09/05/2025, DktEntry: 102.2, Page 3 of 4
• The petition or answer must be accompanied by a Certificate of Compliance
found at Form 11, available on our website at www.ca9.uscourts.gov under
Forms.
• Attorneys must file the petition electronically via the appellate electronic
filing system. No paper copies are required unless the Court orders
otherwise. If you are a pro se litigant or an attorney exempted from using the
appellate ECF system, file one original petition on paper. No additional
paper copies are required unless the Court orders otherwise.
Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)
• The Bill of Costs must be filed within 14 days after entry of judgment.
• See Form 10 for additional information, available on our website at
www.ca9.uscourts.gov under Forms.
Attorneys Fees
• Ninth Circuit Rule 39-1 describes the content and due dates for attorneys
fees applications.
• All relevant forms are available on our website at www.ca9.uscourts.gov
under Forms or by telephoning (415) 355-8000.
Petition for a Writ of Certiorari
• The petition must be filed with the Supreme Court, not this Court. Please
refer to the Rules of the United States Supreme Court at
www.supremecourt.gov.
Counsel Listing in Published Opinions
• Please check counsel listing on the attached decision.
• If there are any errors in a published opinion, please send a letter in writing
within 10 days to:
Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan,
MN 55123 (Attn: Maria Evangelista, maria.b.evangelista@tr.com);
and electronically file a copy of the letter via the appellate
electronic filing system by using the Correspondence filing
category, or if you are an attorney exempted from electronic filing,
mail the Court one copy of the letter.
APPENDIX A
Page 57
Case: 23-2282, 09/05/2025, DktEntry: 102.2, Page 4 of 4
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Form 10. Bill of Costs
Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf
9th Cir. Case Number(s)
Case Name
The Clerk is requested to award costs to (party name(s)):
I swear under penalty of perjury that the copies for which costs are requested
were actually and necessarily produced, and that the requested costs were
actually expended.
Signature
Date
(use “s/[typed name]” to sign electronically-filed documents)
REQUESTED
(each column must be completed)
No. of
Pages per
Cost per
TOTAL
Copies
Copy
Page
COST
COST TAXABLE
DOCUMENTS / FEE PAID
Excerpts of Record*
$
$
Principal Brief(s) (Opening Brief;
Answering Brief; 1st, 2nd , and/or 3rd Brief
on Cross-Appeal; Intervenor Brief)
$
$
Reply Brief / Cross-Appeal Reply Brief
$
$
Supplemental Brief(s)
$
$
Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee /
Appeal from Bankruptcy Appellate Panel Docket Fee
$
TOTAL: $
*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) +
Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as:
No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10);
TOTAL: 4 x 500 x $.10 = $200.
APPENDIX A
Page 58
Case 3:20-cr-00228-SI
Document 906
Filed 05/28/25
Page 1 of 7
AO 245B
Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED (Rev. 10/2019)
Sheet 2 - Imprisonment
DEFENDANT: ROBERT J. JESENIK
CASE NUMBER: 3:20-CR-00228-SI-1
Judgment-Page 1 of 7
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
UNITED STATES OF AMERICA
Plaintiff,
FOURTH AMENDED JUDGMENT IN A CRIMINAL CASE
Case No.: 3:20-CR-00228-SI-1
v.
USM Number: 79668-112
ROBERT J. JESENIK
Conor Huseby, Per Olson, and Scott Mullins
Defendant’s Attorney
Defendant.
Date of Original Judgment: May 22, 2025
(or date of last amended judgment)
Christopher L. Cardani,
Assistant U.S. Attorney
THE DEFENDANT:
☒was found guilty on Counts 1-29, and 31 of the Superseding Indictment after a plea of not guilty.
The defendant is adjudicated guilty of the following offense(s):
Title, Section & Nature of Offense
Date Offense Concluded
Count Number
18:1349 - Conspiracy to Commit Mail and Wire Fraud
Beginning on or about June of 2014 and
continuing until February 2016
1s
18:1343 - Wire Fraud
Beginning on or about August 4, 2015 and
continuing until December 30, 2015
2s-29s all counts
inclusive
18:2, 1014 - False Statement on a Loan Application
January 15, 2016
31s
The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing
Reform Act of 1984.
☒The defendant has been found not guilty on Count 30 of the Superseding Indictment and is discharged as to such count(s).
☒The underlying Indictment is dismissed on the motion of the United States.
☒The defendant shall pay a special assessment in the amount of $100.00 for Counts 1-29, and 31 of the Superseding Indictment for a
total of $3,000.00 payable to the Clerk of the U.S. District Court. (See also the Criminal Monetary Penalties Sheet.)
IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name,
residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If
ordered to pay restitution, the defendant shall notify the court and United States Attorney of any material change in the defendant’s
economic circumstances.
September 07, 2023
Date of Imposition of Sentence
Signature of Judicial Officer
Michael H. Simon, U.S. District Judge
Name and Title of Judicial Officer
May 28, 2025
Date
APPENDIX B
Page 59
Case 3:20-cr-00228-SI
Document 906
Filed 05/28/25
Page 2 of 7
AO 245B
Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED (Rev. 10/2019)
Sheet 2 - Imprisonment
DEFENDANT: ROBERT J. JESENIK
CASE NUMBER: 3:20-CR-00228-SI-1
Judgment-Page 2 of 7
IMPRISONMENT
As to Counts 1-29 and Count 31, the defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned
for a term of ONE HUNDRED SIXTY-EIGHT (168) MONTHS on each count, with the sentences on all counts to be served
concurrently with each other.
☐The court makes the following recommendations to the Bureau of Prisons:
1.
That the defendant be incarcerated to the Camp at Lompoc, California to be near family.
☐ The defendant is remanded to the custody of the United States Marshal.
☐ The defendant shall surrender to the custody of the United States Marshal for this district:
☐ at ______ on _______________.
☐ as notified by the United States Marshal.
☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
☐ before 2:00 P.M. on November 2, 2023.
☐ as notified by the United States Marshal.
☐ as notified by the Probation or Pretrial Services Office.
The Bureau of Prisons will determine the amount of prior custody that may be credited towards the service of sentence as authorized
by Title 18 USC §3585(b) and the policies of the Bureau of Prisons.
RETURN
I have executed this judgment as follows:
Defendant delivered on
at
to
, with a certified copy of this judgment.
UNITED STATES MARSHAL
By:
DEPUTY UNITED STATES MARSHAL
APPENDIX B
Page 60
Case 3:20-cr-00228-SI
Document 906
Filed 05/28/25
Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED (Rev. 10/2019)
Sheet 3 - Supervised Release
DEFENDANT: ROBERT J. JESENIK
CASE NUMBER: 3:20-CR-00228-SI-1
Page 3 of 7
AO 245B
Judgment-Page 3 of 7
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of THREE (3) YEARS.
MANDATORY CONDITIONS
1.
2.
3.
4.
5.
6.
7.
You must not commit another federal, state or local crime.
You must not unlawfully possess a controlled substance.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of
release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
☒The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future
substance abuse. (check if applicable)
☒ You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of
restitution. (check if applicable)
☒ You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et
seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you
reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
☐ You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the
attached page.
APPENDIX B
Page 61
Case 3:20-cr-00228-SI
Document 906
Filed 05/28/25
Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED (Rev. 10/2019)
Sheet 3A - Supervised Release
DEFENDANT: ROBERT J. JESENIK
CASE NUMBER: 3:20-CR-00228-SI-1
Page 4 of 7
AO 245B
Judgment-Page 4 of 7
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are
imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed
by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of
your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a
different time frame.
After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how
and when you must report to the probation officer, and you must report to the probation officer as instructed.
You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission
from the court or the probation officer.
You must answer truthfully the questions asked by your probation officer.
You must live at a place approved by the probation officer. If you plan to change where you live or anything about your
living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the
change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the
probation officer within 72 hours of becoming aware of a change or expected change.
You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation
officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses
you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation
officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position
or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the
probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation
officer within 72 hours of becoming aware of a change or expected change.
You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has
been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the
permission of the probation officer.
If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything
that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as
nunchakus or tasers).
You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer
may require you to notify the person about the risk and you must comply with that instruction. The probation officer may
contact the person and confirm that you have notified the person about the risk.
You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this
judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant's Signature
Date
APPENDIX B
Page 62
Case 3:20-cr-00228-SI
Document 906
Filed 05/28/25
Page 5 of 7
AO 245B
Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED (Rev. 10/2019)
Sheet 3D - Supervised Release
DEFENDANT: ROBERT J. JESENIK
CASE NUMBER: 3:20-CR-00228-SI-1
Judgment-Page 5 of 7
SPECIAL CONDITIONS OF SUPERVISION
1.
You must submit your person, property, house, residence, vehicle, papers, or office, to a search conducted by a United States
probation officer. Failure to submit to a search may be grounds for revocation of release. You must warn any other occupants that
the premises may be subject to searches pursuant to this condition. The probation officer may conduct a search under this
condition only when reasonable suspicion exists that you have violated a condition of supervision and that the areas to be searched
contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner.
2.
You must not work in any type of employment without the prior approval of the probation officer.
3.
If the judgment imposes a financial penalty, including any fine or restitution, you must pay the financial penalty in accordance
with the Schedule of Payments sheet of the judgment. You must also notify the court of any changes in economic circumstances
that might affect your ability to pay this financial penalty.
4.
You must provide the probation officer with access to any requested financial information and authorize the release of any
financial information. The probation office may share financial information with the U.S. Attorney's Office.
5.
You must not incur new credit charges, or open additional lines of credit without the approval of the probation officer.
6.
You must not make application for any loan, or enter into any residential or business lease agreement, without the prior approval
of the probation officer.
7.
You must maintain a single checking account and/or savings account in your own name. You must deposit into this account all
income, monetary gains or other pecuniary proceeds, and make use of this account for payment of all personal expenses. You
must disclose all other accounts to the probation officer.
APPENDIX B
Page 63
Case 3:20-cr-00228-SI
Document 906
Filed 05/28/25
Page 6 of 7
AO 245B
Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED (Rev. 10/2019)
Sheet 5 - Criminal Monetary Penalties
DEFENDANT: ROBERT J. JESENIK
CASE NUMBER: 3:20-CR-00228-SI-1
Judgment-Page 6 of 7
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal monetary penalties in accordance with the Schedule of Payments set forth in this
judgment.
TOTALS
Assessment
(as noted on Sheet 1)
Restitution
Fine
AVAA
Assessment1
JVTA
Assessment2
TOTAL
$3,000.00
$46,111,100
$0.00
$0.00
$0.00
$46,114,100
☐The determination of restitution is deferred until ___________________. An Amended Judgment in a Criminal Case will be entered
after such determination.
☒The defendant shall make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise
in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all non-federal victims must be
paid in full prior to the United States receiving payment.
Name of Payee
12
Amount of Restitution
Ordered
Total Amount of Loss3
See sealed list of victim names
and addresses.
$46,111,100
TOTALS
$46,111,100
Priority Order or
Percentage of Payment
☐If applicable, restitution amount ordered pursuant to plea agreement: $________.
☐The defendant must pay interest on any fine or restitution of more than $2,500, unless the fine or restitution is paid in full before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on the Schedule of Payments
may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
☒The court determined that the defendant does not have the ability to pay interest and it is ordered that
☒The interest is waived for the ☐ fine and/or ☒ restitution.
☐The interest requirement for the ☐ fine and/or ☐ restitution is modified as follows:
Any payment shall be divided proportionately among the payees named unless otherwise specified.
1
Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.
Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.
3
Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18, United States Code, for
offenses committed on or after September 13, 1994, but before April 23, 1996.
2
APPENDIX B
Page 64
Case 3:20-cr-00228-SI
Document 906
Filed 05/28/25
Judgment in a Criminal Case - DISTRICT OF OREGON CUSTOMIZED (Rev. 10/2019)
Sheet 5 - Criminal Monetary Penalties
DEFENDANT: ROBERT J. JESENIK
CASE NUMBER: 3:20-CR-00228-SI-1
Page 7 of 7
AO 245B
Judgment-Page 7 of 7
SCHEDULE OF PAYMENTS
Having assessed the defendant's ability to pay, payment4 of the total criminal monetary penalties shall be as follows:
A. ☐Lump sum payment of $_________ due immediately, balance due
☐not later than _________, or
☐in accordance with ☐ C, ☐ D, or ☐ E below; or
B. ☒Payment to begin immediately (may be combined with ☒ C, ☐ D, or ☐ E below); or
C. ☒If there is any unpaid balance at the time of defendant's release from custody, it shall be paid in monthly installments
of not less than $1,000, or not less than 10% of the defendant's monthly gross earnings, whichever is greater, until paid in
full to commence immediately upon release from imprisonment.
D. ☐ Any balance at the imposition of this sentence shall be paid in monthly installments of not less than $_________, or
not less than 10% of the defendant's monthly gross earnings, whichever is greater, until paid in full to commence
immediately.
E. ☐Special instructions regarding the payment of criminal monetary penalties:
Unless the Court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment,
payment of criminal monetary penalties, including restitution, shall be due during the period of imprisonment as follows: (1) 50% of
wages earned if the defendant is participating in a prison industries program; (2) $25 per quarter if the defendant is not working in a
prison industries program. . If the defendant received substantial resources from any source, including inheritance, settlement, or
other judgment, during a period of incarceration, the defendant shall be required to apply the value of such resources to any restitution
or fine still owed, pursuant to 18 USC § 3664(n).
Nothing ordered herein shall affect the government’s ability to collect up to the total amount of criminal monetary penalties imposed,
pursuant to any existing collection authority.
All criminal monetary penalties, including restitution, except those payments made through the Federal Bureau of Prisons’ Inmate
Financial Responsibility Program, are made to the Clerk of Court at the address below, unless otherwise directed by the Court, the
Probation Officer, or the United States Attorney.
Clerk of Court
U.S. District Court - Oregon
1000 S.W. 3rd Ave., Ste. 740
Portland, OR 97204
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
☒ Joint and Several
Case Number
Defendant and Co-Defendant Names
3:20-cr-228-SI-1 Robert J. Jesenik
3:20-cr-228-SI-3 Andrew M. MacRitchie
Total Amount
$46,111,100
$46,111,100
Joint and Several Amount
$46,111,100
$46,111,100
Corresponding Payee, if
appropriate
☒The defendant shall forfeit the defendant's interest in the following property to the United States: $1,532,947.57
4
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA
assessment, (5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs,
including cost of prosecution and court costs.
APPENDIX B
Page 65
Case: 23-2282, 12/29/2025, DktEntry: 124.1, Page 1 of 2
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILED
DEC 29 2025
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT J. JESENIK,
No. 23-2282
D.C. No.
3:20-cr-00228-SI-1
District of Oregon,
Portland
ORDER
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 23-2308
D.C. No.
3:20-cr-00228-SI-3
District of Oregon,
Portland
ANDREW N. MACRITCHIE, AKA
Andrew MacRitchie,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 23-2316
D.C. No.
3:20-cr-00228-SI-4
District of Oregon,
Portland
BRIAN K. RICE,
Defendant - Appellant.
UNITED STATES OF AMERICA,
No. 24-5402
APPENDIX C
Page 66
Case: 23-2282, 12/29/2025, DktEntry: 124.1, Page 2 of 2
D.C. No.
3:20-cr-00228-SI-3
District of Oregon,
Portland
Plaintiff - Appellee,
v.
ANDREW N. MACRITCHIE, AKA
Andrew MacRitchie,
Defendant - Appellant.
No. 24-5404
D.C. No.
3:20-cr-00228-SI-1
District of Oregon,
Portland
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT J. JESENIK,
Defendant - Appellant.
Before: HURWITZ, KOH, and JOHNSTONE, Circuit Judges.
The panel has unanimously voted to deny Rice’s petition for panel rehearing,
Dkt. 119. Judges Koh and Johnstone have voted to deny the petitions for rehearing
en banc, and Judge Hurwitz so recommended. The petitions for rehearing en banc
were circulated to the judges of the Court, and no judge requested a vote for en
banc consideration. Fed. R. App. P. 40(c).
The petitions for panel rehearing and rehearing en banc, Dkt. 119, 120, and
121, are DENIED.
2
APPENDIX C
Page 67
23-2282
Case 3:20-cr-00228-SI
Document 622
Filed 05/08/23
Page 23 of 38
furtherance of the scheme. It does not matter whether the wired material was itself
false or deceptive, so long as the wire was used as a part of the scheme; nor does it
matter for wire fraud whether the scheme or plan was successful or that any money
or property was obtained.
A mailing is caused when one knows that the mail will be used in the
ordinary course of business or when one can reasonably foresee such use. It does
not matter whether the material mailed was itself false or deceptive, so long as the
mail was used as a part of the scheme; nor does it matter for mail fraud whether the
scheme or plan was successful or that any money or property was obtained.
Instruction No. 18: Mail and Wire Fraud: Knowingly
In the first element of mail or wire fraud, I used the word “knowingly.” An
act is done knowingly if a defendant is aware of the act and does not act through
ignorance, mistake, or accident. You may consider evidence of the defendant’s
words, acts, or omissions, along with all the other evidence, in deciding whether a
defendant acted knowingly.
Instruction No. 19: Mail and Wire Fraud: Materiality
In the second element of mail or wire fraud, I used the word “material.” An
oral or written statement is material if it has a natural tendency to influence, or was
capable of influencing, a person to part with money. Neither proof of reliance on a
false statement nor actual harm is needed to show materiality.
FINAL JURY INSTRUCTIONS – Page 23
ER-61
APPENDIX D
Page 68
Case 3:20-cr-00228-SI
Document 622
Filed 05/08/23
Page 24 of 38
It is not a defense to a charge of mail or wire fraud or a charge of conspiracy
to commit mail or wire fraud that an investor or registered investment advisor may
have been gullible, careless, naïve, or negligent or even that an investor or
registered investment advisor intentionally disregarded information.
Instruction No. 20: Mail and Wire Fraud: Intent to Defraud
In stating the third element of mail or wire fraud above, I said that the
government must prove beyond a reasonable doubt that a defendant had the intent
to defraud. An intent to defraud is an intent to deceive and cheat.
You may determine whether a defendant had an honest, good-faith belief in
the truth of the specific alleged misrepresentations in deciding whether that
defendant acted with an intent to defraud. If you find that a defendant had such an
honest, good-faith belief, the necessary intent to defraud did not exist.
If you find beyond a reasonable doubt that a defendant did not act in good
faith and intentionally made material misrepresentations or misleading half-truths,
then a belief in the ultimate success of an enterprise, a belief that investors will
sustain no economic loss, or a belief that investors eventually will be repaid is no
defense to wire or mail fraud or conspiracy to commit wire or mail fraud.
Instruction No. 21: Mail and Wire Fraud: Ignorance of the Law
It is not a defense to a charge of mail or wire fraud that a defendant was
ignorant of the law. For purposes of mail and wire fraud, although the government
FINAL JURY INSTRUCTIONS – Page 24
ER-62
APPENDIX D
Page 69
Case
Case 3:20-cr-00228-SI
3:20-cr-00228-SI
Document
Document 801
801
Filed
Filed 10/30/23
10/30/23
Page
of 127
Page 64
64o0f127
5765
/4$170&5 #PFVJCV
MR.
BOUNDS:
And that'sUGZCEVN[VJGUQTVQHCTIWOGPV
exactly the sort of argument
VJCV+YQWNFCPVKEKRCVGDWV+YQWNFPQVGZRGEVVQDGCRTQRGT
that
I would anticipate,
but
I would not expect
to be a proper
RCTVQHVJCVCTIWOGPV #PFVJG22/YCUFKUTGICTFGFCPF[QW
part of that argument:
"And the PPM was disregarded,
and you
ECP
can'tVDNCOGWU
blame us."
6*'%1746 6JGTGKPTGDWVVCN[QWECPRQKPVVJGOVQ
THE COURT:
There,
in rebuttal,
you can point
them to
VJKUNCUVUGPVGPEGQH+PUVTWEVKQP
this last sentence of Instruction 20.
/4$170&5 $WVVJCV
MR.
BOUNDS:
But that'sUO[RQKPV6JCV
my point.
That'sUPQVC
not a
OCVGTKCNKV[CTIWOGPV6JKUKUIQKPIVQVJGKTEWNRCDKNKV[
materiality argument.
This is going to their culpability
HQT
for --
6*'%1746 ;GCJ
THE
COURT:
Yeah.
/4*75'$; +VJKPM
MR.
HUSEBY:
I think
--
6*'%1746 +VJKPM4[CPKUTKIJV2CTVQHYJCV+
THE COURT:
I think Ryan is right.
Part of what I'mO
VJKPMKPIVJGTGKUVJKUTGCNN[KPVGTGUVKPIEQPEGRVVJCVVJKUKU
thinking there is this really interesting concept that this is
QPGEKTEWOUVCPEGYJGTGVJGETKOKPCNNCYECPRWPKUJEQPFWEVVJCV
one circumstance where the criminal law can punish conduct that
VJGEKXKNNCYYQWNFPQVEQORGPUCVGHQT
the civil law would not compensate for.
+HYGJCFKPVGPVKQPCNFKUTGICTFQHKPHQTOCVKQPD[CP
If we had intentional disregard of information by an
KPXGUVQTVJCVKPXGUVQTYQWNFNQUGCEKXKNNCYUWKVDGECWUGCU
investor,
that
investor would lose a civil
lawsuit,
because
as
YGCNNMPQYWPFGTEKXKNHTCWFGNGOGPVUTGCUQPCDNGTGNKCPEGKU
we all know, under civil fraud elements,
reasonable reliance is
CPGNGOGPV#PFKHVJGRNCKPVKHHKPXGUVQTFQGUPQVCEV
an element.
And if the plaintiff-investor does not act
TGCUQPCDN[VJGPVJGRNCKPVKHHKPXGUVQTECP
reasonably,
then the plaintiff-investor can'tVTGEQXGT$WVCU
recover.
But as
.KPFUG[VGCEJGUWUCPFOCMGUKVTGCNN[GZRNKEKVVJCV
Lindsey teaches us and makes it really explicit,
that'sUPQVC
not a
FGHGPUGVQETKOKPCNHTCWF
defense to criminal fraud.
/464'/106' $WVVJCVIQGUVQOCVGTKCNKV[CPFPQV
MR. TREMONTE:
But that goes to materiality and not
24
VQKPVGPV#ICKPYGJCXGVQDGHTGGVQCTIWG*GTGKUYJCV
to intent.
Again,
we have to be free to argue,
"Here
is what
25
YGVJQWIJVYCUIQKPIQPCPFJGTGKUYJ[6JCV
we thought was going on, and here is why."
That'sUFKHHGTGPV
different
ER-85
ER-85
APPENDIX
APPENDIX E
E
Page
Page 70
70
Case
Case 3:20-cr-00228-SI
3:20-cr-00228-SI
Document
Document 694
694
Filed
Filed 09/01/23
09/01/23.
Page
of 306
Page 97
97of306
1506
4<COCTTKRC:
R.
Zamarripa
- X
3
Q
!
$2,500,000?
#
A
%QTTGEV
Correct.
3
Q
1MC[5KOKNCTSWGUVKQP $GHQTGUKIPKPIVJKUFKF[QW
Okay.
Similar question:
Before
signing
this,
did you
TGCFVJKUFQEWOGPV!
read this document?
#
A
0QVVQO[MPQYNGFIG
Not to my knowledge.
3
Q
0QVVQ[QWTMPQYNGFIG[QWFKFP
Not to your knowledge,
you didn'tVTGCFKVCVCNN!
read it at all?
#
A
+OKIJVJCXGRGTWUGFKVDWV+FQP
I might
have perused
it,
but
I don'tVTGECNNTGCFKPIKVKP
recall
reading
it in
FGVCKN
detail.
+V
It'sUFCVGF0QXGODGTVJKPVJGCOQWPVQH
dated
November
10th,
2014,
in the
amount
of
/4&#&*+%* 1DLGEVKQP4GNGXCPEGVQVJKUNKPGQH
MR. DADHICH:
Objection.
Relevance to this line of
SWGUVKQPKPI;QWT*QPQT
questioning,
Your Honor.
6*'%1746 +
THE COURT:
I'mOIQKPIVQUWUVCKPKVPQVVQVJCV
going to sustain it -- not to that
SWGUVKQP$WVKHVJGTGKUCVKOGN[QDLGEVKQP+CPVKEKRCVG
question.
But
if there
is a timely objection,
I anticipate
UWUVCKPKPIKV
sustaining
it.
$;/41.510
BY MR.
OLSON:
3
Q
FKFP
didn'tVTGCFKVDWVYGTG[QWCYCTGQHVJGRTQXKUKQPUVJCVYGTG
read it,
but were you aware of the provisions
that were
KPKV!
in it?
#
A
0QVRCTVKEWNCTN[PQ
Not particularly,
no.
3
Q
&KFUQOGDQF[FGUETKDGVQ[QWVJGRTQXKUKQPUVJCVYGTGKP
Did somebody describe
to you the provisions
that were
in
KV!
it?
#
A
0QVVJCV+TGECNN
Not that
I recall.
3
Q
(QTGZCORNGFKFCP[QPGFGUETKDGVQ[QWCRCTCITCRJCDQWV
For example,
did anyone
describe
to you a paragraph
about
24
FWGFKNKIGPEG!
due diligence?
25
5QKHVJGTGCTGYGNNNGVOGCUMVJKUSWGUVKQP ;QW
So if there are
-- well,
let me ask this question:
You
/4&#&*+%* 1DLGEVKQP4GNGXCPEG
MR.
DADHICH:
Objection.
Relevance.
ER-161
ER-161
APPENDIX
APPENDIX F
F
Page
Page 71
71
Case
Case 3:20-cr-00228-SI
3:20-cr-00228-SI
Document
Document 694
694
Filed
Filed 09/01/23
09/01/23
Page
of 306
Page 98
98of306
1507
4<COCTTKRC:
R.
Zamarripa
- X
6*'%1746 1XGTTWNGF
THE COURT:
Overruled.
6*'9+60'55 0QVVJCV+TGECNN
THE WITNESS:
Not that
I recall.
$;/41.510
BY MR.
OLSON:
3
Q
UQRJKUVKECVKQP!
sophistication?
&KFCP[QPGFGUETKDGVQ[QWCRCTCITCRJCDQWV
Did anyone
describe
to you a paragraph
about
/4&#&*+%* 1DLGEVKQP4GNGXCPEG
MR.
DADHICH:
Objection.
Relevance.
6*'%1746 1XGTTWNGF
THE COURT:
Overruled.
6*'9+60'55 0QVVJCV+TGECNN
THE
WITNESS:
Not
that
I recall.
$;/41.510
BY MR.
OLSON:
3
Q
&KFCP[QPGFGUETKDGVQ[QWCRCTCITCRJCDQWVUWKVCDKNKV[!
Did anyone
describe
to you a paragraph
about
suitability?
#
A
0QVVJCV+TGECNN
Not that
I recall.
3
Q
&KF[QWEQPUWNVCP[QPGCDQWVVJGTKUMU
Did you consult anyone about the risks --
/4&#&*+%* 1DLGEVKQP4GNGXCPEG
MR.
DADHICH:
Objection.
Relevance.
6*'%1746 1XGTTWNGF)GPGTCNN[NGV
THE COURT:
Overruled.
Generally
let'sUNGVVJG
let the
SWGUVKQPDGEQORNGVGFDGHQTGUVCVKPICPQDLGEVKQP
question be completed before
stating
an objection.
/4&#&*+%* ;GU;QWT*QPQT
MR.
DADHICH:
Yes,
Your
Honor.
$;/41.510
BY MR.
OLSON:
3
Q
PQPTKUMKPGUUQHVJKURCTVKEWNCTKPXGUVOGPV!
non-riskiness of this particular investment?
#
A
0QPQVVJCV+TGECNN
No,
not
that
I recall.
3
Q
&KF[QWTGCFCRTKXCVGRNCEGOGPVOGOQTCPFWOVJCVYQWNF
Did you read a private
placement
memorandum
that would
JCXGDGGPKPGHHGEVCVVJGVKOGVJKUUWDUETKRVKQPCITGGOGPV!
have been in effect
at the time this
subscription
agreement?
#
A
%GTVCKPN[PQVKPFGVCKNPQ
Certainly not
in detail,
no.
24
3
Q
$WV[QWTGEGKXGFQPG!
But you received one?
25
#
A
+OC[JCXG
I may have.
&KF[QWEQPUWNVYKVJCP[QPGTGICTFKPIVJGTKUMKPGUUQT
Did you consult
with anyone
regarding
the riskiness
or
ER-162
ER-162
APPENDIX
APPENDIX F
F
Page
Page 72
72
Case
Case 3:20-cr-00228-SI
3:20-cr-00228-SI
Document
Document 694
694
Filed
Filed 09/01/23
09/01/23.
Page
of 306
Page 99
99o0f306
1508
4<COCTTKRC:
R.
Zamarripa
- X
3
Q
RTQHGUUKQPCNTGICTFKPIVJKURCTVKEWNCTKPXGUVOGPV!
professional
regarding
this particular
investment?
#
A
0QVVJCV+TGECNN
Not that
I recall.
3
Q
+I'mOIQKPIVQDTKGHN[UJQY[QWVJKURCTVKEWNCTRTKXCVG
going
to briefly
show you this particular private
RNCEGOGPVOGOQTCPFWOYJKEJYGJCXGTGEGKXGFKPGXKFGPEG+
placement
memorandum,
which
we have
received
in evidence,
I
DGNKGXGCNTGCF[CU'ZJKDKV#ICKPVJKUKUMKPFQHC
believe
already,
as Exhibit
1422.
Again,
this
is kind of a
IGPGTKEQPG+VKUPQVPGEGUUCTKN[VJGQPG[QWRJ[UKECNN[
generic one.
It is not necessarily the one you physically
TGEGKXGFDWV+
NNTGRTGUGPVVQ[QWVJCVVJKUKUQPGVJCVYCU
received,
but
I'll
represent
to you that
this
is one that was
KPGHHGEVCVVJGVKOGQH[QWTKPXGUVOGPV5QKHYGECPIQVQ
in effect
at the time of your
investment.
So if we can go to
RCIGQHVJG2&(PWODGT;QWUGGDGNQYVJGTGYJGTGKVUC[U
page
9 of the PDF number.
You see below there where
it says
UQWTEGUQHTGRC[OGPV!
"Sources of repayment"?
#
A
;GU
Yes.
3
Q
&QGUVJGFQEWOGPVUC[VJCVUQWTEGQH[QWTTGRC[OGPVHQT
Does
the document
say that
"Source
of your repayment
for
[QWTKPXGUVOGPVEQWNFDGRTQEGGFUHTQOHWVWTGECRKVCNTCKUGU!
your investment
could be proceeds
from future
capital
raises"?
&KF[QWEQPUWNVC%2#QTCPCVVQTPG[QTCP[QVJGT
Did you consult
a CPA or an attorney or any other
/4&#&*+%* 1DLGEVKQP
MR. DADHICH:
Objection.
6*'%1746 5WUVCKPGF
THE COURT:
Sustained.
.GVOGGZRNCKPVQVJGLWT[CNKVVNGDKVCDQWVYJ[+
Let me explain
to the jury a little bit about why I'mO
UWUVCKPKPIVJGQDLGEVKQPUCPF+
NNIKXG[QWOQTGNGICN
sustaining
the objections,
and I'll
give you more
legal
KPUVTWEVKQPUNCVGT$WVWPFGTVJGETKOKPCNNCYQHOCKNHTCWF
instructions later.
But under the criminal law of mail fraud
CPFYKTGHTCWFYGFQP
and wire
fraud,
we don'tVDNCOGVJGXKEVKO+HHTCWFJCUDGGP
blame
the victim.
If fraud has been
EQOOKVVGFCPFVJCV
committed
-- and that'sUIQKPIVQDG[QWTFGEKUKQPNCVGTVQ
going
to be your decision
later to
FGEKFGYJGVJGTQTPQVCUEJGOGVQFGHTCWFJCUDGGPEQOOKVVGFQT
decide whether
or not a scheme
to defraud has been committed or
CEQPURKTCE[VQFGHTCWFJCUDGGPGPVGTGFKPVQVJCV
a conspiracy
to defraud has been entered
into
-- that'sU
24
UWHHKEKGPV9GFQPQVCUMWPFGTVJGETKOKPCNNCYYJGVJGTQT
sufficient.
We do not ask under
the criminal
law whether or
25
PQVVJGXKEVKOKPCP[YC[YCUPGINKIGPVKPKPEWTTKPIVJGNQUU
not the victim
in any way was negligent
in incurring
the loss.
ER-163
ER-163
APPENDIX
APPENDIX F
F
Page
Page 73
73
Case
Case 3:20-cr-00228-SI
3:20-cr-00228-SI
Document
Document 694
694 _ Filed
Filed 09/01/23
09/01/23.
Page
Page 100
100 of
of 306
306
1509
4<COCTTKRC:
R.
Zamarripa
- X
+YKNNIKXG[QWVJGFGVCKNUCDQWVVJKUNCVGTKPO[HKPCN
I will give you the details
about
this
later
in my final
KPUVTWEVKQPU
instructions.
$WV+
But
I'mOUWUVCKPKPIVJGUGQDLGEVKQPUDGECWUGKVKU
sustaining
these objections
because
it is
KTTGNGXCPVYJGVJGTQTPQVVJGXKEVKOQHCPCNNGIGFETKOKPCN
irrelevant
whether
or not the victim of an alleged
criminal
HTCWFYCUQTYCUPQVPGINKIGPVCPFYGFQPQVUGGMVQDNCOGVJG
fraud was or was not negligent,
and we do not
seek to blame
the
XKEVKOQHCETKOKPCNHTCWF
victim of a criminal
fraud.
6JKUKUPQVCEKXKNVTKCN/T<COCTTKRCKUPQV
This
is not a civil
trial.
Mr.
Zamarripa
is not
UWKPIVQTGEQXGTOQPG[DCEM&KHHGTGPVNGICNRTKPEKRNGUOC[
suing to recover money back.
Different
legal principles
may
CRRN[CPFFQCRRN[KPCEKXKNNCYUWKV6JKUKUPQVCEKXKN
apply and do apply
in a civil
lawsuit.
This
is not a civil
NCYUWKV6JKUKUCETKOKPCNECUG#PFCU+YKNNKPUVTWEV[QW
lawsuit.
This
is a criminal
case.
And as I will
instruct
you
OQTGHWNN[CVVJGGPFQHVJGVTKCNKPETKOKPCNECUGUVJG
more
fully at the end of the trial,
in criminal
cases,
the
XKEVKO
victim's UPGINKIGPEGQTPQVKUKTTGNGXCPV
negligence,
or not,
is irrelevant.
;QWOC[RTQEGGF
You may proceed.
$;/41.510
BY MR.
OLSON:
3
Q
RWTRQUGKUVQCUM[QWSWGUVKQPUCDQWVYJCV#GSWKVCUFKUENQUGF
purpose
is to ask you questions
about what Aequitas
disclosed
QTCVVGORVGFVQFKUENQUGVQ[QW5QQPVJKUPGZVRCIGKH
or attempted to disclose to you.
So on this next page -- if
[QWEQWNFVWTPVQVJGPGZVRCIGVJGTGKUCUGEVKQPVJGTG
you could turn to the next page,
there
is a section
there
ECNNGFWUGQHRTQEGGFU+HYGEQWNFJKIJNKIJVVJGHKTUV
called
"use of proceeds."
If we could highlight
the first
RCTCITCRJ
paragraph.
/T<COCTTKRCO[RWTRQUGKUPQVVQECUVDNCOGQP[QW/[
Mr.
Zamarripa,
my purpose
is not to cast blame
on you.
My
/4&#&*+%* +
MR.
DADHICH:
I'mOIQKPIVQNCWPEJVJGUCOGQDLGEVKQP
going
to launch the same objection.
6*'%1746 .GVOGCUM[QW/T<COCTTKRC &KF[QW
THE COURT:
Let me ask you,
Mr.
Zamarripa:
Did you
24
25
TGCFVJKU!
read this?
6*'9+60'55 0Q+VJKPM+UVCVGFCEQWRNGQHVKOGU
THE WITNESS:
No.
I think
I stated a couple
of times
VJCV+JCXGP
that
I haven'tVTGCNN[TGCFKV+FKFP
really read it.
I didn'tVIQKPVQKVKPCP[
go into
it in any
ER-164
ER-164
APPENDIX
APPENDIX F
F
Page
Page 74
74
Case 3:20-cr-00228-SI
Document 694
Filed 09/01/23
Page 101 of 306
4<COCTTKRC:
FGVCKN+VKUNKMGQVJGT+ OPQVVJGQPN[QPGRTQDCDN[
6*'%1746 .GV UPQVURGEWNCVGCDQWVVJCV.GV U
VCNMCDQWVYJCV[QWMPQY6JGQDLGEVKQPKUUWUVCKPGF+VJKPM
PQVJKPIGNUGKPVJKUFQEWOGPVKUPQYIQKPIVQDGTGNGXCPV
/41.510 1MC[;QWT*QPQTEQWNFYGDGJGCTFCV
UKFGDCT!
6*'%1746 ;GU
&KUEWUUKQPYCUJGNFQHHVJGTGEQTFCVUKFGDCT
2TQEGGFKPIUTGUWOGF
6*'%1746 6JGPGZVSWGUVKQP/T1NUQP
$;/41.510
3
CPFFKFP V[QW!
#
VQIGVJGTDWVPQVYGGMN[6JCV UPQVEQTTGEV
;QWCPF/T5\CDQRNC[GFIQNHQPCYGGMN[DCUKUKP
+YQWNFPQVUC[CYGGMN[DCUKU9GFKFRNC[UQOGIQNH
/41.510 +JCXGPQHWTVJGTSWGUVKQPU
6*'%1746 /U'UVGXCQ[QWOC[KPSWKTGQPDGJCNHQH
/T/CE4KVEJKG
/5'56'8#1 &Q[QWOKPFKHYGJCXGCOKPWVGVQ
UYKVEJ!
6*'%1746 ;QWOC[JCXGCOKPWVG
%4155':#/+0#6+10
$;/5'56'8#1
3
)QQFOQTPKPI
#
)QQFOQTPKPI
ER-165
APPENDIX F
Page 75
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.