United States v. Richards , 204 F.3d 177 ( 2000 )


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  •                   UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-20441
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    AL RICHARDS, KURT LATRASSE, AND ROGER BRAUGH,
    Defendants-Appellants.
    Appeal from the United States District Court
    for the Southern District of Texas
    February 9, 2000
    Before KING, Chief Judge, and STEWART, Circuit Judge, and
    ROSENTHAL, District Judge.1
    Defendants appeal their convictions for their involvement in
    a purported investment scheme that took large sums of money from
    the investors and returned them little or nothing.     The investors
    believed that their money went to purchase letters of credit, which
    defendants were to   “roll,” or repeatedly sell and repurchase, to
    European banks.   The indictment alleged that the defendants took
    1
    District Judge of the Southern District of Texas,
    sitting by designation.
    1
    the money from the investors, but purchased no letters of credit
    and instead kept the money for themselves.
    Al Richards appeals his convictions for conspiracy to
    commit wire and mail fraud, in violation of 
    18 U.S.C. § 371
    ;
    interstate transportation of stolen property, in violation of 
    18 U.S.C. § 2314
    ; and wire fraud, in violation of 
    18 U.S.C. § 1343
    .
    Richards also appeals the district court’s order that he pay
    restitution in the amount of $487,000.                  Roger Braugh and Kurt
    Latrasse appeal their convictions for conspiracy to commit wire
    fraud and mail fraud; interstate transportation of stolen property;
    wire fraud; and mail fraud, in violation of 
    18 U.S.C. § 1341
    .
    Braugh also appeals the district court’s order that he pay $504,500
    in restitution.      Finding ample evidence in the record to support
    the convictions and no basis for reversal, we affirm.
    I.   BACKGROUND AND PROCEDURAL HISTORY
    The superseding indictment charged all three defendants with
    conspiracy to commit mail and wire fraud (count 1), interstate
    transportation of stolen property (count 2); and wire fraud (count
    3). The indictment charged Braugh and Latrasse with two additional
    counts of wire fraud (counts 4 and 5) and one count of mail fraud
    (count 6).    The jury convicted Richards on all three counts and
    convicted Braugh and Latrasse on all six counts.
    At    trial,    the   government       presented    evidence   as   to   how
    defendants induced participants to “invest” in the so-called roll
    program.    Potential investors were told that their money would be
    pooled with that of other investors and used to buy letters of
    credit.      The    letters   of   credit     would     be   “rolled”    —   sold,
    2
    repurchased,    and    resold   —   to       European   banks   frequently        and
    repeatedly.     Each “roll” would generate a large profit to be
    distributed among the investors, in proportion to their investment.
    The investors were told that their funds would be safe at all
    times, held either in an account at a nationally-known brokerage
    firm or invested with a “prime” or “top 50" international bank.
    Investors were also told that they would receive at least the
    return of their initial investment, with interest, and would likely
    make substantial profit. In fact, the defendants took the invested
    funds for their own use, bought no letters of credit, and, except
    for a small payment to one participant, returned no money to the
    investors.
    Three     investors    testified.           Bert    Hayes,     an    Arkansas
    businessman, was introduced to the program by Al Richards in a
    telephone call.       Richards outlined an investment opportunity, but
    refused   to     discuss     the    details        until    Hayes        signed    a
    noncircumvention, nondisclosure agreement.              After Hayes signed the
    agreement, Richards suggested they meet in Dallas to discuss the
    potential investment.      Hayes agreed.
    At the Dallas meeting, Richards told Hayes that in the “roll
    program,” the investors’ funds would be pooled to buy a $10 million
    letter of credit from a “top 50 prime bank.” The letter of credit
    would be “rolled” to different European banks. The investors would
    earn interest with each “roll.”                Richards told Hayes that the
    interest on the “rolls” would generate ten weekly payments of
    $50,000 each on a $ 250,000 investment.             Richards told Hayes that
    his money would be kept in an interest-bearing account at the
    3
    Shearson Lehman Brothers brokerage firm until used to buy the
    letter of credit. Richards assured Hayes that he would control the
    money until all the other funds necessary for the roll program were
    raised. If the roll program could not purchase a letter of credit,
    Richards would return Hayes’s original investment, with ten percent
    interest.
    Richards explained that he would not personally be involved in
    purchasing and selling the letters of credit.      His “contacts,”
    identified as Roger Braugh and Al Sellars, would handle the roll
    program transactions.
    Hayes signed a written contract in August 1991.   The contract
    identified Hayes and Gold Cloud Development Corporation as the
    parties to a “joint business proposition.” The contract was signed
    by Hayes and by “Roger S. Braugh by Al Richards” as the chairperson
    of Gold Cloud Development.
    The contract provided that Hayes would deposit his investment
    funds in a designated brokerage firm account on September 5, 1991.
    On the Monday following that date, Gold Cloud Development would
    purchase a “One Year Zero Interest Coupon Standby Letter of Credit
    with a $10,000,000.00 USD face value.”     Gold Cloud Development
    would “orchestrate the sale of the Standby Letter of Credit in the
    European or Japanese secondary markets based on an already existing
    contractual arrangement . . . .” Gold Cloud Development would wire
    Hayes his share of the profits from that sale, expected to be
    $50,000, to a bank Hayes would designate.      “The original $ 10
    Million USD principal would be reinvested on Monday each week for
    the purchase of a new Standby Letter of Credit to repeat the same
    4
    weekly chain of events, for a period of no less than ten (10)
    transactions.”
    On September 6, 1991, Hayes sent a $ 250,000 check to a
    designated Shearson Lehman Brothers account for investment in the
    Gold Cloud Development roll program.          On the same day, Richards
    signed and sent Hayes a “Business Proposal on Funding Commitment.”
    This document set out Al Richards’ plan to use GEI Associates, a
    company Richards owned and ran, to raise $10 million to buy the
    first letter of credit. The business proposal provided that if GEI
    Associates could not raise the money necessary to buy the first
    letter   of   credit,    Hayes   would   receive   his   money   back,   with
    interest.
    When Hayes sent in his $250,000 check, he told Richards he
    wanted to meet the individuals who would be handling the roll
    transactions.     Richards arranged a meeting with Hayes and Roger
    Braugh and Al Sellars a few weeks later.           At that meeting, Hayes
    asked Al Sellars if the investment was safe.         Sellars, noting that
    Hayes was wearing a Mason pin, told Hayes that he was also a Mason
    and that the investment was “as safe as the Rock of Gibraltar.”
    Sellars asked Braugh to “roll” the investment at least twice in the
    next week so that Hayes could see how the program worked.
    After that meeting, Hayes understood Braugh to be in control
    of the roll program transactions. Hayes expected to be paid within
    a few weeks for the first roll transaction, set to occur the
    following week.     Several weeks passed with no payments.               Hayes
    began to question both Richards and Braugh about the program and
    about his money.        In December 1991, Richard told Hayes that the
    5
    initial arrangement was not working and proposed a different
    arrangement. Richards proposed to change the payment plan from ten
    weekly payments of $50,000 each to 42 weekly payments of $ 20,000
    each.   Hayes agreed and signed a revised contract.       “Roger S.
    Braugh by Al Richards” signed as the chairperson of Gold Cloud
    Development.
    Early in 1992, Braugh introduced Hayes to Kurt Latrasse.
    Braugh identified Latrasse as an expert in the roll program.
    Latrasse told Hayes that his money was invested in England and
    “doing very well.”    In June 1992, Latrasse advised Hayes to cancel
    his contract with Richards and GEI Associates so that Hayes could
    deal directly with Braugh and Latrasse and avoid paying commissions
    to Richards.   Hayes followed Latrasse’s advice and, by letter to
    Richards dated June 12, 1992, canceled the contract with Richards
    and GEI Associates.
    In August 1992, Hayes complained to Braugh that he still had
    not received any payments from his investment.     Braugh expressed
    surprise and explained that he had sent Richards several checks
    intended for distribution to Hayes.   Braugh sent Hayes photocopies
    of seven canceled checks, totaling $50,000, signed by Braugh and
    made out to Richards.    The notation “Bert Hayes payment” appeared
    on the memorandum line of each check. Hayes telephoned Richards to
    ask why he had not sent Hayes the $50,000.       Richards expressed
    surprise; he insisted that the checks were his own commissions, not
    Hayes’s investment returns.    Richards accused Braugh of lying to
    Hayes. During this time, Braugh sent Hayes a $15,000 check so that
    6
    Hayes could pay the interest due on the loan he had taken out to
    fund his $ 250,000 investment in the roll program.
    In September 1992, Hayes sent a fax message to Latrasse asking
    for an accounting and a status report on the investment.     Hayes
    received no response.    A few weeks later, Hayes sent Latrasse a
    second fax, again asking for an accounting.    On October 5, 1992,
    Latrasse sent a fax, announcing that Gold Cloud Development had
    been able to purchase “the commitments” for the roll program in
    late November 1991.   Latrasse continued:
    Now, as to the future, we believe we will be
    able to return the original investment plus a
    reasonable return to you within this month.
    We would propose at that time to invest the
    net proceeds (after principal and interest on
    your loan has been satisfied) in a master
    collateral commitment. . . . [I]nasmuch as you
    have been patient as Job with us, we would
    like to include you as an equal participant in
    whatever profits are generated.
    The month passed; Hayes received no money.
    Hayes sent several more fax messages to Latrasse over the next
    few months, to no avail.   By May 1993, neither Latrasse nor Braugh
    was returning Hayes’s telephone calls or faxed messages.     Hayes
    heard nothing further about the program until 1996, when the FBI
    contacted him.   Hayes lost $235,000.
    Gail Schwinger, another investor, also testified at trial.
    Schwinger met Richards in November 1991 through her partners in an
    investment company.     After Schwinger and her partners signed a
    noncircumvention, nondisclosure agreement, Richards revealed the
    mechanics of the roll program.    Richards gave Schwinger much the
    same explanation he had given Hayes, with one variation.   Richards
    7
    told Schwinger that an investment of $250,000 could earn up to
    $40,000 per week for 42 weeks, not the $50,000 per week for ten
    weeks he initially described to Hayes.
    In    December    1991,   Schwinger       and   her   partners    met   with
    Richards,    Braugh,    and    Sellars    in    Houston.      When    Schwinger
    questioned whether her money would be safe, Braugh assured her that
    her money would never leave the banks and would be very safe.
    Schwinger agreed to invest $ 250,000 and, on December 11, 1991,
    signed a contract with Gold Cloud Development. “Roger Braugh by Al
    Richards” signed the contract as the chairperson of Gold Cloud
    Development.    The contract stated that the letters of credit would
    be rolled 42 times; Schwinger would receive $40,000 for each roll.
    The contract provided that if Gold Cloud Development could not buy
    a letter of credit, Schwinger would receive her full investment
    back with interest. Schwinger sent a $250,000 check for deposit in
    the designated Shearson Lehman Brothers account on the same day she
    signed the contract.
    After the expected date for the first payment passed, one of
    Schwinger’s partners began asking Richards questions about the
    investment.    In January 1992, Schwinger asked Braugh for a status
    report.     Braugh told her that the program had been delayed.                 In
    February 1992, Braugh told Schwinger that Kurt Latrasse had taken
    over the    roll   program.      In   later     conversations,    Braugh     gave
    Schwinger different excuses for the lack of payments.                In separate
    conversations, he told her that Latrasse was in the hospital with
    gallstones;    that Latrasse’s wife was in the hospital for dental
    surgery; and that Latrasse might have cancer. According to Braugh,
    8
    these problems prevented Latrasse from traveling to Europe to
    correct problems with the roll program.
    Schwinger also spoke to Richards and Braugh several times in
    February and March of 1992.           Each time, Schwinger received excuses
    or promises that quickly proved false. In March 1992, Braugh tried
    to persuade Schwinger to invest in another roll program. Schwinger
    agreed to attend a meeting in April 1992 to discuss the proposed
    investment with Braugh, Al Sellars, and a man named Harold Sellers,
    identified as Al Sellars’ attorney.             Schwinger had no intention of
    participating in another program, but agreed to the meeting so she
    could    ask    questions     about   her     original    $250,000   investment.
    Schwinger received no answers at the meeting.
    After the March 1992 meeting, Schwinger hired an attorney, who
    sent a letter to Richards, Braugh, and Latrasse demanding an
    accounting.       On May 28, 1992, Latrasse called Schwinger and told
    her that he was upset that she had hired a lawyer.                 The next day,
    Schwinger sent a fax to Latrasse, again asking for an accounting.
    Latrasse agreed. On June 11, 1992, Schwinger sent Latrasse another
    fax asking when she would receive the promised accounting.                       On
    June 19, Latrasse responded by offering another excuse for the
    delays    and     promising    prompt       payment:     “The   commitments     for
    collateral and funding have now been conformed and are working
    properly.       We anticipate distribution of accumulated earnings to
    commence by or on – by or before June 30th.”
    June   30,   1992   came     without    either    payment   or    an
    accounting.       On that date, one of Schwinger’s partners wrote to
    Latrasse, Braugh, and Sellars, stating that he planned to contact
    9
    federal   and   state   authorities   about   the    investment   program.
    Latrasse left two messages on Schwinger’s           answering machine on
    July 1, 1992.    In the first message, Latrasse told Schwinger that
    there had been movement on the account and proposed a meeting to
    discuss the investment.      In the second message, Latrasse said he
    had received the “threatening” letter from Schwinger’s partner and
    proposed a meeting before attorneys became involved.               One of
    Schwinger’s partners did arrange a meeting with Latrasse and
    Schwinger. Latrasse did not appear. Schwinger never recovered any
    of her investment.
    Brandon Blackwelder was the third investor to testify at
    trial. Blackwelder met Roger Braugh in 1993. Braugh described his
    career field as “international finance” and asked if Blackwelder
    would be interested in investing in a “deal” in Europe.             Braugh
    told Blackwelder that the investment was secret and available only
    to “blue-bloods” and “high-ranking officials.”          Braugh described
    the investment as a “roll-over program” consisting of purchases and
    sales of prime bank instruments in Europe.          Blackwelder agreed to
    invest $12,500.
    On May 12, 1993, Braugh went to Blackwelder’s office to
    collect the money.      While there, Braugh telephoned Kurt Latrasse.
    Using a speaker phone,     Braugh asked Latrasse to allow Blackwelder
    to invest only $12,500 instead of what Braugh described as the
    minimum amount of $25,000.       Latrasse responded that Blackwelder
    could invest the lower amount if Blackwelder would agree to recruit
    other investors for the program.
    10
    Blackwelder and Braugh signed a contract titled the “SAI
    Opportunity Account Agreement” that same day.     Braugh signed the
    contract on behalf of “SAI & Associates.”     The contract provided
    that SAI & Associates would “guarantee that the capital account
    shall be returned at the end of ninety (90) days from the date of
    execution of this Agreement.”   The initial term of 90 days would be
    deemed renewed absent a written notice of nonrenewal by either
    party. Braugh also signed a instrument styled an “Unsecured Note,”
    in which he promised to pay Blackwelder, within the 90-day initial
    term, the principal amount with interest at a twenty percent annual
    rate.
    Blackwelder spoke to Braugh or Latrasse several times after he
    made the investment.   On June 26, 1993, Blackwelder hand-delivered
    Braugh a letter stating that Blackwelder did not wish to renew the
    contract after the initial 90-day term. Blackwelder explained that
    he needed the money for a down payment on a new house.   After this
    meeting, Blackwelder was unable to reach Braugh for weeks.     When
    Blackwelder finally talked to Braugh, Braugh provided excuses, but
    no money.
    In July 1993, Braugh called Blackwelder.      Braugh explained
    that if he could travel to Europe, he could expedite the roll
    program transactions, but he needed $5,000 to $10,000 to make the
    trip. Braugh asked Blackwelder to lend him the money. Blackwelder
    agreed to lend Braugh $5,000, but asked Braugh to give him a post-
    dated repayment check as security.    On July 8, 1993, Blackwelder
    gave Braugh two checks for $2,500 each.     In return, Braugh gave
    Blackwelder a check in the amount of $5,000, post-dated July 16,
    11
    1993. Braugh cashed the checks from Blackwelder, but did not use
    the money to pay for a trip to Europe.
    On July 16, 1993, Blackwelder told Braugh that he planned to
    cash the repayment check.   Braugh told Blackwelder that he had not
    yet deposited money in the account on which the check was drawn.
    Blackwelder nonetheless presented the check for payment, which,
    predictably, bounced.   Blackwelder tried unsuccessfully to recover
    his money from Braugh.      On   November 22, 1993, Braugh wrote
    Blackwelder a letter stating that he would repay Blackwelder’s
    $5,000 loan with cash or a cashier’s check.    Blackwelder received
    no repayment.
    Blackwelder also spoke with Latrasse several times about his
    investment.   Latrasse repeatedly told Blackwelder that there would
    be action on his investment “any day.”    In February 1994, Latrasse
    sent Blackwelder a fax stating that Latrasse had designated a
    disinterested third party to deliver Blackwelder a check returning
    his investment. Blackwelder never received the check. He lost his
    $12,500 investment and the $5,000 loan.
    Kathryn Brewer, a financial analyst with the FBI, examined
    numerous bank and brokerage account records to trace the funds
    Hayes, Schwinger, and Blackwelder invested.      She testified that
    most of the money was distributed among bank accounts of the three
    defendants. The remaining funds were disbursed to various entities
    unrelated to any investment program.
    Hayes’s $250,000 check was initially deposited into a Shearson
    Lehman Brothers account in Braugh’s name on September 6, 1991. All
    but approximately $1,000 of this money was transferred out of that
    12
    account within one month of the deposit.     From September 11, 1991
    and ending to October 4, 1991, $182,500 was wire-transferred from
    Braugh’s Shearson Lehman Brothers account to an account in Braugh’s
    name at the Bank of Corpus Christi.    A $100,000 check to Al Sellars
    was drawn on Braugh’s Bank of Corpus Christi account on September
    11, 1991. From September 11, 1991 to September 27, 1991, a total of
    $24,000 was wire-transferred from Braugh’s Bank of Corpus Christi
    account to an account at the same bank in the name of Lone Star
    Exploration.2 On October 3, 1991, $25,000 was transferred directly
    from Braugh’s Shearson Lehman Brothers account to the Lone Star
    Exploration bank account.   Nearly all the $49,000 deposited in the
    Lone Star Exploration account was disbursed to various entities
    unrelated to any roll program.3
    Brewer testified that a $32,000 cashier’s check made payable
    to Al Sellars was purchased on September 20, 1991 with money from
    Braugh’s Bank of Corpus Christi account.    The check was ultimately
    redeposited into Braugh’s Shearson Lehman Brothers account. Brewer
    testified that two wire transfers — a September 17, 1991 transfer
    in the amount of $7,500 and a September 25, 1991 transfer in the
    2
    The signature card for the Lone Star Exploration account
    disclosed that the account was opened on September 11, 1991, five
    days after Hayes delivered his check. Braugh and a man named Jerry
    Fritzler were the only authorized signatories. The signature card
    identified Braugh as the chairman of Lone Star Exploration and
    Fritzler as the president.
    3
    The bank records showed that checks made payable to
    Watson Pipe, Inc.; Clark Oil Tools; Halliburton Services; Pride
    Petroleum; Cellular One; and Southwestern Bell were drawn on the
    Lone Star Exploration account.
    13
    amount of $5,000 — were made from Braugh’s Bank of Corpus Christi
    account to an account in the name of Kurt Latrasse in California.
    Schwinger deposited her $250,000 check into the Shearson
    Lehman Brothers account in the name of Gold Cloud Development on
    December 12, 1991.    Brewer testified that, on December 13, 1991,
    two checks made payable to Roger Braugh, totaling $50,000, were
    drawn on the Gold Cloud Development account. By January 3, 1992,
    $198,500 was transferred from the Gold Cloud Development account to
    Roger Braugh’s Shearson Lehman Brothers account. Seven checks made
    payable to either Al Richards or GEI Associates, totaling $50,000,
    were later drawn on Braugh’s Shearson Lehman Brothers account; two
    checks made payable to Kurt Latrasse, totaling $59,500, were drawn
    on this same account in late December 1991.   Three wire transfers
    totaling $46,000 were made to Roger Braugh’s account at the Bank of
    Corpus Christi in December 1991. The records from Braugh’s Bank of
    Corpus Christi account also showed transfers totaling $22,000 to
    the Lone Star Exploration account at that bank in December 1991;
    the remaining money was disbursed to entities unrelated to any roll
    program.
    Blackwelder wrote a $12,500 check payable to SAI & Associates
    on May 12, 1993.   The check was deposited into the account of SAI
    & Associates at the Bank of America on the same day.   On that same
    date, a $5,000 check made payable to Kurt Latrasse was drawn on the
    SAI & Associates account and $2,500 was transferred from the SAI &
    Associates account to an account in the name of Roger Braugh at the
    Bank of America.     Another $1,400 was transferred from the SAI &
    Associates account to Braugh’s account on May 24, 1993.   The money
    14
    transferred to Braugh’s personal account was in turn disbursed to
    various entities unrelated to any investment program.             Brewer’s
    analysis showed that Braugh paid various expenses with the $5,000
    Blackwelder loaned him, writing checks to, among other entities,
    General Motors Acceptance Corporation and Wal-Mart. Braugh did not
    use the money to pay for a trip to Europe, as he had promised
    Blackwelder.
    On January 20, 1998, a jury convicted Richards, Braugh, and
    Latrasse on all counts.        On May 14, 1998, the district court
    sentenced each defendant to thirty-three months of imprisonment
    followed by three years of supervised release.           The district court
    ordered Richards to pay $487,000 in restitution and ordered Braugh
    and Latrasse each $504,500 in restitution.              The district court
    entered judgment on May 19, 1998.        Defendants timely appealed.
    II.   THE CHALLENGE TO THE INDICTMENT
    Braugh   argues   for   the   first   time   on    appeal   that   the
    superseding indictment did not meet constitutional standards.            He
    relies on the recent decision of United States v. Neder, 
    527 U.S. 1
    , 
    119 S. Ct. 1827
     (1999), holding that the “materiality of
    falsehood is an element of the federal mail fraud [and] wire fraud
    . . . statutes.”    Id. at 1841.     Braugh contends that because the
    indictment did not specifically allege that the misrepresentations
    he made were material, it failed to allege an essential element of
    wire fraud and mail fraud.
    “To be sufficient, an indictment must allege every element of
    the crime charged.”     United States v. Fitzgerald, 
    89 F.3d 218
    , 221
    (5th Cir. 1996).   A challenge to the sufficiency of the indictment
    15
    is reviewed de novo.        See United States v. Cabrera-Teran, 
    168 F.3d 141
    , 143 (5th Cir. 1999).             “An indictment’s failure to charge an
    offense is a jurisdictional defect.”              
    Id.
       Because the sufficiency
    of an indictment is a prerequisite to jurisdiction, a “defendant[]
    at any time may raise an objection based on failure to charge an
    offense.”     
    Id.
       However, when a challenge to the sufficiency of the
    indictment is made for the first time on appeal, “a court should
    read    the   indictment     with      ‘maximum     liberality’    and    find    it
    sufficient ‘unless it is so defective that by any reasonable
    construction,       it   fails   to    charge   the     offense   for    which   the
    defendant is convicted.’” United States v. Lankford, 
    196 F.3d 563
    ,
    569 (5th Cir. 1999)(quoting Fitzgerald, 
    89 F.3d 218
    , 221 (5th Cir.
    1996)). “Maximum liberality” is the appropriate standard of review
    when, as here, “the appellant does not assert prejudice, that is,
    [when the appellant] had notice of the crime of which he stood
    accused.”     Fitzgerald, 
    89 F.3d at 221
    ; see also Lankford, 
    196 F.3d at 569
    .
    In determining the sufficiency of the indictment, “[t]he law
    does not compel a ritual of words.”               United States v. Wilson, 
    884 F.2d 174
    , 179 (5th Cir. 1989)(quoting United States v. Purvis, 
    580 F.2d 853
    , 857–858 (5th Cir. 1978).            “The test of the validity of an
    indictment is ‘not whether the indictment could have been framed in
    a more satisfactory manner, but whether it conforms to minimal
    constitutional standards.’” Wilson, 884 F.2d at 179(quoting United
    States v. Webb, 
    747 F.2d 278
    , 284 (5th Cir. 1984)).
    In Neder, the Court defined “materiality of falsehood” in a
    footnote:
    16
    The Restatement instructs that a matter is material if:
    “(a) a reasonable man would attach importance to its
    existence or nonexistence in determining his choice of
    action in the transaction in question; or
    (b) the maker of the representation knows or has reason
    to know that its recipient regards or is likely to regard
    the matter as important in determining his choice of
    action, although a reasonable man would not so regard
    it.”
    Neder, 
    119 S. Ct. at
    1840 n. 5(quoting Restatement (Second) of
    Torts § 538 (1976)).4     This court applies this definition to
    determine whether, by any reasonable construction, the superseding
    indictment   charged    Braugh   with   making   materially      false
    representations.
    In United States v. McCough, 
    510 F.2d 598
     (5th Cir. 1975),
    this court considered a similar challenge to an indictment.        In
    that case, the indictment charged a violation of 
    18 U.S.C. § 1001
    ,
    which prohibits the making of false statements to a department or
    agency of the United States.     The indictment in McCough alleged
    that a utility cooperative had submitted false financial statements
    to a federal agency in a loan application.   The defendants argued
    that the indictment insufficiently alleged the materiality of the
    falsehoods under section 1001.    The court stated that “[i]f the
    facts alleged in the indictment warrant an inference that the false
    4
    The definition of materiality quoted above refers to the
    statements themselves, not whether the recipients of the statements
    actually relied on them. Although allegations of actual reliance
    appear to allege materiality, the standards are different.        A
    recipient might actually rely on a false representation, but the
    representation might not be one to which “a reasonable man would
    attach importance . . . in determining his choice of action,” or
    one that “the maker of the representation knows or has reason to
    know that its recipient regards or is likely to regard the matter
    as important in determining his choice of action, although a
    reasonable man would not so regard it.” Neder, 119 S. Ct at 1840
    n. 5.
    17
    statement is material, the indictment is not fatally insufficient
    for its failure to allege materiality in haec verba.”               
    Id. at 602
    ;
    see also United States v. Fern, 
    155 F.3d 1318
    , 1324 (11th Cir.
    1998); United States v. Pommerening, 
    500 F.2d 92
    , 98 (10th Cir.
    1974); United States v. Olin Corp., 
    465 F. Supp. 1120
    , 1131–32
    (W.D.N.Y. 1979).
    The McCough indictment alleged that the financial statements
    substantially misstated the value of the cooperative’s assets and
    described   specific   entries    in   the   financial      statements    that
    contained misrepresentations.      The court held that the indictment
    sufficiently   alleged    the   materiality    of    the    false    financial
    statements because it alleged specific misstatements that were
    significant and “could conceivably have the capacity to influence
    the [agency’s] function in overseeing the status of the security of
    a large public investment.”      Id. at 603.
    The    superseding   indictment    in    this   case    alleged     false
    representations of specific facts that also “warrant an inference
    that the false statement[s] [were] material.”              Id. at 602.     The
    indictment detailed the specific false representations and promises
    defendants allegedly made to “induce the Investors to deliver to
    the Defendants cashier’s check and checks.” Paragraph Six of Count
    One of the indictment alleged:
    ROGER S. BRAUGH, AL RICHARDS, and KURT LATRASSE would and
    did represent falsely to certain individuals, including
    but not limited to Bert Hayes, Gail Schwinger, and
    Brandon Blackwelder (the “Investors”), that they had
    contacts with European banks and lenders and that the
    Investors would receive a substantial return on an
    investment involving transactions between banks within a
    matter of weeks or months.
    18
    Paragraph Ten of Count One of the indictment alleged:
    ROGER S. BRAUGH, AL RICHARDS, and KURT LATRASSE would and
    did continue to send and receive communications . . . to
    and from the Investors, even after the Investors had
    delivered their money to the defendants, for the purpose
    of lulling the Investors into a false sense of security
    by assurances that the promised services would be, or
    were being, performed, and that the investment was a
    worthwhile    one,   and   that   they    would   receive
    distributions, or return of it, at some future date; for
    the purpose of postponing inquiries, complaints, or legal
    action by the Investors, and lessening the suspect
    appearance of the fraudulent transactions; and, for the
    purpose of giving excuses for non-performance, thereby
    allowing additional investments or loans to be sought
    from the Investors.
    Paragraph 13 of Count One of the indictment listed twenty-eight
    overt acts, including specific communications with the investors
    describing the details of the investment program and later assuring
    the investors that the program was making money as promised.     The
    allegations in Paragraphs Six,   Ten, and Thirteen of Count 1 are
    incorporated by reference in all other counts of the indictment.
    The indictment in this case does not test constitutional
    limits in light of Neder.      Read as a whole, the superseding
    indictment alleges specific facts that easily support an inference
    that the defendants made material misrepresentations and false
    promises.   In particular, the allegations that the defendants
    misrepresented that the investment program existed, was free from
    risk of loss, and would generate large profits support an inference
    of materiality.   A “reasonable man would attach importance” to
    assurances that the investments would take place as described and
    would return at least the invested funds, plus interest, within a
    short time, in determining whether to invest.   The allegations in
    19
    the indictment are sufficient to charge the offenses of mail fraud,
    wire fraud, and conspiracy to commit mail fraud and wire fraud.
    III. THE CHALLENGE TO THE DENIAL OF BRAUGH’S MOTION TO SEVER
    Braugh argues that the district court improperly denied his
    motion to sever because the evidence presented at trial was so
    complicated that the jury had difficulty considering the evidence
    against each defendant separately.         Braugh also argues that the
    defendants presented antagonistic defenses.
    The district court’s denial of a motion to sever is reviewed
    for an abuse of discretion.     See United States v. Pena-Rodriguez,
    
    110 F.3d. 1120
    , 1128 (5th Cir. 1997).         Rule 8(b) of the Federal
    Rules of Criminal Procedure provides in relevant part: “Two or more
    defendants may be charged in the same indictment . . . if they are
    alleged to have participated . . . in the same series of acts or
    transactions constituting an offense or offenses.”            Generally,
    “persons indicted together should be tried together, especially in
    conspiracy cases . . . .”     United States v. Posada-Rios, 
    158 F.3d 832
    , 863 (1998), cert. denied, ___ U.S. ___, 119 S. Ct 1280 (1999),
    cert. denied, ___ U.S. ___, 119 S. Ct 1487 (1999), and cert.
    denied, ___ U.S. ___, 
    119 S. Ct. 1792
     (1999) (quoting United States
    v. Pofahl, 
    990 F.2d 1456
    , 1483 (5th Cir. 1993)).
    Rule 14 of the Federal Rules of Criminal Procedure authorizes
    the trial court to grant a severance based on a showing of
    prejudice.   To   demonstrate   that   a   district   court   abused   its
    discretion in denying a motion to sever, the defendant “must show
    that: (1) the joint trial prejudiced him to such an extent that the
    district court could not provide adequate protection; and (2) the
    20
    prejudice    outweighed      the     government’s        interest   in    economy    of
    judicial administration.”            United States v. McCord, 
    33 F.3d 1434
    ,
    1452 (5th Cir. 1994)(quoting United States v. DeVarona, 
    872 F.2d 114
    , 120–21 (5th Cir. 1989)).
    This trial lasted two weeks and involved three defendants.
    This court has upheld a district court’s decision to deny severance
    in cases involving many more defendants, more evidence, greater
    complexity, and longer trials. See, e.g., Posada-Rios, 
    158 F.3d at
    863–65(upholding district court’s denial of a motion to sever in a
    conspiracy case tried for six months against 12 defendants); United
    States v. Ellender, 
    947 F.2d 748
    , 753–755 (5th Cir. 1991)(upholding
    district court’s denial of a motion to sever in a conspiracy case
    tried for three months against 23 defendants, with 73 witnesses).
    A general description of the complexity of a trial is not
    sufficient    to     show    the     “specific      and    compelling      prejudice”
    necessary for reversal of a district court’s denial of a motion to
    sever.   United States v. McCord, 
    33 F.3d at 1452
    ; cf. Posada-Rios,
    
    158 F.3d at 863
    .            Instead, an appellant must “isolate events
    occurring    in    the   course     of   the     joint    trial   and    then   .   . .
    demonstrate       that   such      events    caused      substantial      prejudice.”
    Posada-Rios, 
    158 F.3d at 863
    (quoting Ellender, 
    947 F.2d 748
    , 755
    (5th Cir. 1991)).        Braugh has not identified specific events that
    caused prejudice and require reversal.
    Braugh’s argument that the jury’s conviction of all defendants
    on all counts shows that it did not separately consider the
    evidence as to each defendant is unavailing.                        This court has
    stated that “acquittals as to some defendants on some counts
    21
    support an inference that the jury sorted through the evidence and
    considered each defendant and each count separately.” Posada-Rios,
    
    158 F.3d at 864
     (quoting Ellender, 
    947 F.2d at 755
    ).     It does not
    necessarily follow, however, that conviction of all defendants on
    all counts shows that the jury failed separately to weigh the
    evidence as to each defendant.
    “Appropriate   cautionary    instructions   can   decrease    the
    possibility that the jury will improperly transfer proof of guilt
    from one defendant to another.” Ellender, 
    947 F.2d at 755
     (quoting
    United States v. Hogan, 
    763 F.2d 697
    , 705 (5th Cir. 1985)).       “The
    pernicious effect of cumulation . . . is best avoided by precise
    instructions to the jury on the admissibility and proper uses of
    the evidence introduced by the Government.”       United States v.
    Morrow, 
    537 F.2d 120
    , 136 (5th Cir. 1976).   In this case, the trial
    court gave careful instructions during the trial about the limited
    purpose for which it admitted some of the evidence.        The court
    included the limiting instructions in the final instructions to the
    jury.   In the trial instructions, the court also admonished the
    jury as follows:
    A separate crime is charged against one or more of the
    defendants in each count of the indictment. Each count,
    and the evidence pertaining to it, should be considered
    separately. Also, the case of each defendant should be
    considered separately and individually. The fact that
    you may find one or more of the defendants guilty or not
    guilty of any of the crimes charged should not control
    your verdict as to any other crime or any other
    defendant. You must give separate consideration to the
    evidence as to each defendant.
    Similar instructions have been held sufficient to eliminate the
    possibility of undue prejudice.   See Posada-Rios, 
    158 F.3d at 864
    ;
    22
    United States v. Faulkner, 
    17 F.3d 745
    , 759 (5th. Cir 1994).             “The
    remedy of severance is justified only if the prejudice flowing from
    a joint trial is clearly beyond the curative powers of a cautionary
    instruction.”    Morrow, 537 F.2d at 136.      Braugh offers no specific
    basis   for   concluding   that   the    district   court’s   repeated   and
    meticulous    instructions    failed     to   avoid   legally   cognizable
    prejudice.
    Braugh also argues that the district court should have severed
    his trial because Richards presented an antagonistic defense.
    Braugh points to three instances of purported antagonism.           First,
    Richards’ attorney stressed in opening statements that Bert Hayes’s
    money was deposited into an account that Braugh, not Richards,
    controlled.     Second, Richards’ attorney argued that the checks
    Braugh wrote to Richards with the notation “Bert Hayes payment” on
    the memorandum line were to pay Richards’ commissions, and that
    Braugh lied when he told Hayes that the checks were for him.
    Richards’ attorney argued that Braugh wrote “Bert Hayes payment” on
    the cashed and canceled checks after the fact.          Braugh’s attorney
    contended that Braugh sent the money to Richards in order to pay
    Hayes. Third, during his cross-examination of Schwinger, Richards’
    attorney asked questions about events that occurred after Richards’
    involvement had ended, including actions Braugh took to make
    Schwinger continue believing that the roll program was legitimate.
    Braugh argues that these trial tactics were intended to blame
    Braugh and portray Richards’ involvement as innocent.
    “[S]everance is not automatically required merely because co-
    defendants present mutually antagonistic defenses.”           United States
    23
    v. Castillo, 
    77 F.3d 1480
    , 1491 (5th Cir. 1996); see also United
    States v. Matthews, 
    178 F.3d 295
    , 298 (5th Cir.), cert. denied, ___
    U.S. ___, 
    120 S. Ct. 359
     (1999).       The decision is committed to the
    discretion of the trial court and will be reversed only if the
    defendant shows “specific and compelling prejudice” the joint trial
    caused his defense.       This court has held that when defendants
    present   antagonistic    defenses,    “instructions      to   consider    the
    evidence as to each defendant separately and individually, and not
    to consider comments made by counsel as substantive evidence
    sufficed ‘to cure any prejudice caused when co-defendants accuse
    each other of the crime.’”     United States v. Mann, 
    161 F.3d 840
    ,
    863 (5th Cir. 1998)(quoting United States v. Stouffer, 
    986 F.2d 916
    , 924 (5th Cir. 1993)), cert. denied, ___ U.S. ___, 
    119 S. Ct. 1766
     (1999).      The district court gave both these instructions in
    this case.
    In addition to the curative instructions, a close examination
    of Richards’ and Braugh’s defenses shows that they fall short of
    mutual antagonism. Defenses are antagonistic if they are “mutually
    exclusive    or   irreconcilable,     that    is,   if   the   core   of   one
    defendant’s defense is contradicted by that of a codefendant.”
    United States v. Rojas-Martinez, 
    968 F.2d 415
    , 419 (5th Cir. 1992);
    see also United States v. Moser, 
    123 F.3d 813
    , 829 (5th Cir. 1997).
    Richards presented his belief that the roll program was legitimate
    as the core of his defense.     The core of Braugh’s defense was that
    Al Sellars   masterminded the “roll program” and Braugh believed it
    to be legitimate.     The two defenses are not mutually antagonistic;
    the jury could have believed both.           Specifically, the jury could
    24
    have found that Braugh wrote “Bert Hayes payment” on the canceled
    checks after Richards cashed them, as Richards’ attorney argued,
    and that Braugh believed the investment program was legitimate, as
    Braugh’s attorney argued.           The evidence as to Braugh’s continued
    involvement     with       Schwinger’s         investment     after      Richards’
    participation      ended    similarly     did   not   conflict    with   Braugh’s
    defense that he believed the investment program to be legitimate.
    Richards and Braugh did not present mutually antagonistic
    defenses, so as to require severance. The district court carefully
    instructed the jury separately to consider the evidence admitted
    against each defendant.           Braugh has not demonstrated the “specific
    and compelling prejudice” necessary for reversal based on the
    district court’s denial of his motion to sever.
    IV.    THE CHALLENGES TO THE ADMISSION OF EVIDENCE
    A.   THE RULE 403 OBJECTION
    Richards argues that the district court abused its discretion
    in admitting Braugh’s testimony that he brought a dispute he had
    with    Richards    to     the    attention     of    the   federal   and   state
    prosecutor’s    offices      in    Fort   Worth   and   Dallas,   respectively.
    Richards contends that the district court should have excluded the
    testimony under Rule 403 of the Federal Rules of Evidence, on the
    ground that “its probative value is substantially outweighed by the
    danger of unfair prejudice.”
    Braugh testified without objection that Richards asked him for
    $30,000 in January 1992. Braugh sent Richards three $10,000 checks.
    Braugh testified that Richards agreed not to cash those checks, but
    25
    merely to show them to anxious creditors to provide assurance.
    Instead, Richards cashed the checks, against Braugh’s instructions.
    Richards did object to Braugh’s testimony the following day,
    when Braugh told the jury that he reported his dispute with
    Richards over the three $10,000 checks to the local offices of the
    district attorney and the United States Attorney.       The reports did
    not result in criminal charges against Richards.       Braugh testified
    that he knew that by making the complaint, he was bringing his
    relationship with Richards to the attention of law enforcement
    agencies.
    The district court carefully limited Braugh’s testimony about
    his dispute with Richards and carefully instructed the jury as to
    how they could consider the limited testimony admitted.       The court
    did not permit Braugh to present the details of his disagreement
    with Richards over the checks. Instead, the court limited Braugh’s
    testimony to the fact that he had a dispute with Richards, which he
    later reported.    The   court   included   Braugh’s   letters   to   the
    prosecutors detailing the dispute as part of the record, but did
    not admit the letters at the trial.5   The district court found that
    the testimony had narrow, but significant, probative value.           The
    5
    In the letters, Braugh reported a dispute with Richards
    and another man named Ron Cravens.       According to Braugh, the
    dispute arose after Richards endorsed the checks to Cravens so that
    Cravens could cash the checks. However, the checks were postdated.
    Cravens contacted Braugh and threatened to sue for the amount of
    the checks.    Braugh placed a stop payment order on the checks.
    When Cravens attempted to cash the checks, the bank returned them
    unpaid.   Cravens continued to threaten Braugh with suit on the
    checks.    Braugh ultimately wrote letters to law enforcement
    agencies to report the dispute, claiming that Richards and Cravens
    were “working together in an attempt to extort th[e] money from me
    by threatening me with prosecution.”
    26
    fact that Braugh reported the dispute to law enforcement tended to
    support his contention that he did not believe that he and Richards
    were parties    to   an   unlawful   conspiracy.    The   district   court
    reasoned that Braugh would be unlikely to take any action that
    could lead to law enforcement investigating his relationship with
    Richards if he believed that their relationship was criminal.
    The district court gave the jury the following instructions
    about Braugh’s limited testimony:
    Let me explain to the jury what’s happening. I’m going
    to let Mr. Braugh testify about this matter, this dispute
    that he had with Mr. Richards. The nature of the dispute
    is not really that relevant in this case, and you are not
    going to be asked to decide whether Mr. Richards was
    right in this dispute or Mr. Braugh was right in this
    dispute, I’m letting the fact that Mr. Braugh brought the
    dispute to the attention of law enforcement agencies be
    admitted into evidence because you may decide that it’s
    relevant to Mr. Braugh’s state of mind, in that, if Mr.
    Braugh believed that his dealings with Mr. Richards that
    we have been hearing in this case were illegal. He may
    not have wanted law enforcement officials to learn of his
    dealings with Mr. Richards. So that’s the only reason I
    am letting this come into evidence. The exact dispute,
    who’s right and wrong in the dispute, is not relevant.
    Only the fact that Mr. Braugh’s state of mind was such
    that he was willing to bring the nature of the dispute to
    law enforcement officials in 1992.
    Richards   argues    that   Braugh’s   testimony   lacked   probative
    value.   Because “the dispute was totally unrelated to the charged
    offenses,” Braugh would not have been concerned that his complaint
    would trigger an investigation into his relationship with Richards,
    and the fact of the report did not tend to show that Braugh viewed
    his relationship with Richards as lawful.          Richards also argues
    that the evidence of Braugh’s reports of his dispute with Richards
    was cumulative of other evidence showing that Braugh and Richards
    had a “falling out.” Richards asserts that the probative value was
    27
    minimal and the prejudicial effect significant, given the facial
    similarity between Braugh’s accusations and the conduct alleged in
    the indictment.
    This court reviews the district court’s ruling for an abuse of
    discretion.     See Old Chief v. United States, 
    519 U.S. 172
    , 174 n.
    1 (1997); United States v. Ismoila, 
    100 F.3d 380
    , 391 (5th Cir.
    1996). “The exclusion of evidence under Rule 403 should occur only
    sparingly.”     United States v. Pace, 
    10 F.3d 1106
    , 1115 (5th Cir.
    1993).    The “major function [of Rule 403] is limited to excluding
    matter of scant or cumulative probative force, dragged in the by
    the heels     for the sake of its prejudicial effect.”                
    Id. at 1116
    (quoting United States v, McRae, 
    593 F.2d 700
    , 707 (5th Cir.
    1979)).
    Contrary to Richards’ argument, the evidence admitted did have
    the   probative      value   defined    in   the   trial   judge’s   limiting
    instructions.     The district court did not admit Braugh’s testimony
    for the purpose of establishing that his report about Richards to
    law enforcement agencies was true or to show that he and Richards
    had a dispute.       The court instead admitted the fact of Braugh’s
    reports of a dispute with Richards as evidence bearing only on
    Braugh’s contention that he did not believe that he and Richards
    were parties to a criminal conspiracy.             As the government notes,
    both Braugh’s and Richards’ attorneys discussed the testimony in
    their closing arguments, demonstrating its probative value.
    Nor was Braugh’s testimony so prejudicial as to make its
    admission,    with     the   district    court’s    limiting   instructions,
    improper. When Braugh testified that Richards attempted to cash the
    28
    checks despite his agreement with Braugh not to do so, Richards did
    not object.6     Richards did not object until the following day, when
    Braugh testified that he reported the disagreement over the checks
    to   law   enforcement   agencies.        The   district   court’s   detailed
    limiting instruction carefully defined the purpose for which the
    6
    “Under the plain error standard, forfeited errors are
    subject to review only where they are ‘obvious,’ ‘clear,’ or
    ‘readily apparent,’ and they affect the defendants substantial
    rights.” United States v. Richardson, 
    168 F.3d 836
    , 839 n. 9 (5th
    Cir.)(quoting United States v. Calverley, 
    37 F.3d 160
    , 162 (5th
    Cir. 1994)(en banc), abrogated in part by Johnson v. United States,
    
    520 U.S. 461
     (1997)), cert. denied, ___ U.S. ___, 
    119 S. Ct. 1589
    (1999). “Even then, we will not exercise our discretion to correct
    the forfeited errors unless they ‘seriously affect the fairness,
    integrity, or public reputation of the judicial proceeding.’”
    Richardson, 
    168 F.3d at
    839 n. 9 (quoting Calverley, 
    37 F.3d at 164
    ).   Braugh testified as follows about Richards’ cashing the
    checks:
    Q:    . . . [W]hat did Al Richards say he
    needed money for?
    A:    That he had some expenses and some
    obligations that were due and he needed
    that money, or, he needed a check from –
    a check or a series of checks from me to
    hold as good faith against those debts.
    Q:    . . . [W]hat was your understanding Al
    Richards was going to do with the money
    if you sent him the funds?
    A:    Well, I understood at the time that he
    was going to hold these checks.
    ....
    Q:    ... [D]id you learn whether or not
    ultimately or at some later date whether
    or not these checks had in fact been
    cashed?
    A:    I did learn later on they had been
    cashed.
    Even if we were to assume that this testimony was “clearly”
    inadmissible under Rule 403, as Richards urges on appeal, Richards
    has not shown plain error.       He has not shown that the error
    affected his substantial rights — that is, “affect[ed] the outcome
    of the proceeding” — much less that the error “seriously affect[ed]
    the fairness, integrity, or public reputation of [the] judicial
    proceeding[].” Calverley, 
    37 F.3d at 164
    .
    29
    jury could consider the testimony and mitigated the potential for
    undue prejudice.        See United States v. Bailey, 
    111 F.3d 1229
    , 1234
    (5th Cir. 1997).
    In light of the court’s strict limits on Braugh’s testimony
    and     instructions     limiting      the    jury’s      consideration       of   the
    testimony,    the    district    court       did    not   err    in   admitting    this
    evidence.
    B.    THE RULE 404(B) AND HEARSAY CHALLENGES
    In rebuttal, and over objections, the government called a
    witness named Mark McMillan to testify about investments he made
    through Braugh and Latrasse in 1987 and 1988. These objections are
    reasserted on appeal.
    McMillan testified that he met Braugh in late 1987.                       Braugh
    was   working    from    an   office    in    the    church      to   which   McMillan
    belonged, trying to help the financially troubled church raise
    money. Braugh proposed an investment to McMillan to help solve the
    church’s financial problems.           Braugh explained that he “had some
    kind of bank letter of credit, foreign bank letter of credit deal
    going    where   some     bank   was     going      to    loan    him   $10    million
    imminently.”      Braugh told McMillan that $15,000 would make “the
    deal” work.         Braugh promised that if               McMillan invested the
    $15,000, Braugh would receive $10 million from the European bank;
    would loan $800,000 to the church; would return $15,000 to McMillan
    within a few days; and would pay McMillan an additional $15,000.
    McMillan gave Braugh the $15,000.             Neither McMillan nor the church
    received any money from Braugh.
    30
    McMillan next saw Braugh several months later, at the offices
    of Butler Industries.      McMillan was there to see the company
    president, a close personal friend.     Braugh was using an office at
    the company, working to raise money for the financially-troubled
    business.    Braugh   proposed    another    investment     opportunity   to
    McMillan. Braugh explained that he had succeeded in securing a $10
    million loan from a European bank.          The money had been wired and
    placed in a holding account, but Braugh needed $25,000 to release
    the funds.   Braugh promised that if McMillan invested the $25,000,
    Braugh would pay him $50,000 before the close of the same business
    day; would pay the $30,000 owed from the first investment; would
    loan money to Butler Industries; and would loan the church the
    money he had promised earlier.
    Braugh told McMillan that the transactions would take place
    through a company called Gold Cloud Development.7 If the $10
    million was not paid as expected, Gold Cloud Development would
    invest McMillan’s money in a movie through a company called San
    Francisco Productions. Braugh told McMillan that Kurt Latrasse was
    in charge of both the loan from the European bank and the movie
    deal and that Braugh was acting at Latrasse’s direction.
    McMillan testified that, despite suspicions, he decided to
    give Braugh the $25,000.       On April 14, 1988, McMillan had his
    office   manager   draft   a     document     to   record    the   promised
    transactions.   In this document, Braugh and Latrasse, referred to
    7
    Roger Braugh testified that the Gold Cloud Development
    Corporation referred to in connection with this transaction was not
    the same Gold Cloud Development Corporation that was involved in
    the roll program, of which he was the chairman.
    31
    as “Borrower,” promised to pay McMillan $50,000 from: (1) “proceeds
    received    on   the   Roger   Braugh/Gold      Cloud     Development      Project
    (expected loan of $10,000,000.00)”; (2) “proceeds received on the
    San    Francisco       Productions         Project      (expected     loan       of
    $10,000,000.00)”; or (3) “other sources as deemed necessary by
    Borrower.”   McMillan’s staff also drafted a personal guarantee for
    signature by Braugh and Latrasse individually.                  McMillan told
    Braugh that he would pay the $25,000 only after Braugh and Latrasse
    signed the documents.
    McMillan    testified    that   he    spoke    by   telephone   to    a   man
    identified as Kurt Latrasse after the documents had been faxed to
    Latrasse:
    A:    . . . . [W]e got him on the telephone in
    his motel room.
    Q:    Who is the “we,” who got him on the
    telephone?
    A:    Me and Roger Braugh and Robert Cohen, the
    president of Butler Industries.
    Q:    And who is the “him” that you got on the
    phone?
    A:    Kurt Latrasse.
    Q:    And what makes you think you had Kurt
    Latrasse on the telephone?
    A:    He said he was Kurt Latrasse.        They
    dialed the hotel -- I mean, I was told
    that they were calling Kurt Latrasse.
    The man got on the phone, said he was
    Kurt Latrasse. He got the documents. He
    said he read the documents. He said he
    was signing them. He said he could not
    get them notarize [sic] because his
    secretary was gone to lunch or his notary
    was gone to lunch, and he signed it,
    supposedly, they faxed it back to me. I
    looked at it, I verified the signature,
    then I paid the money.
    Later that day, Roger Braugh faxed McMillan the “loan document,”
    signed “Kurt Latrasse” and “Roger S. Braugh,” and the personal
    32
    guarantee, signed “Roger S. Braugh.”             On the fax cover sheet,
    Braugh wrote: “Kurt’s personal guarantee will be here tomorrow
    because the notary left before we sent the last document to him.”
    McMillan did not see Braugh again after that day. He received
    none of his money back and neither the church nor Butler Industries
    received a loan.       McMillan filed no complaint and made no attempt
    to recover the money.
    1.    Braugh’s Challenges to McMillan’s Testimony
    Braugh argues that the admission of McMillan’s testimony
    violated Rule 404(b) of the Federal Rules of Evidence because the
    transactions McMillan described were remote in time from, and
    dissimilar to, the transactions charged in the indictment.                 Braugh
    also argues that, even if the evidence was relevant, its marginal
    probative    value     was   substantially     outweighed      by    the   highly
    prejudicial impact.
    In     response,    the   government     argues    that      the   McMillan
    transactions     had    substantial   similarities     to   the     transactions
    charged in the indictment, making the evidence highly probative of
    Braugh’s intent.       Braugh put his intent squarely in issue, making
    McMillan’s testimony important rebuttal evidence.                   The district
    court instructed the jury that they were to consider the testimony
    only on the issue of intent.
    The district court’s decision to admit Rule 404(b) evidence is
    reviewed for abuse of discretion.          See United States v. Chavez, 
    119 F.3d 342
    , 346 (5th Cir. 1997).               This review is “necessarily
    heightened” in criminal cases.        United States v. Gonzalez, 
    76 F.3d 1339
    , 1347 (5th Cir. 1996)(quoting United States v. Anderson, 933
    
    33 F.2d 1261
    , 1268 (5th Cir. 1991)).            The probative value of the
    evidence, the need for the evidence by the government on the issue
    of intent, and the court’s limiting instructions are all considered
    in determining if the court properly admitted the testimony under
    Rule 404(b).8
    A trial court must apply the test set out in United States v.
    Beechum, 
    582 F.2d 898
    , 911 (5th Cir. 1978)(en banc), in determining
    whether to admit extrinsic evidence under Rule 404(b).              Careful
    application of the Beechum test protects defendants from unfair
    prejudice   in   the   admission    of    extrinsic   act   evidence.   See
    Anderson, 933 F.2d at 1268.        The first step of the Beechum test is
    to determine that the extrinsic offense evidence is relevant to an
    issue other than the defendant’s character.           The second step is to
    determine whether the evidence satisfies Rule 403.             See Beechum,
    
    582 F.2d at 911
    .
    The relevance of extrinsic act evidence “is a function of its
    similarity to the offense charged.”           
    Id.
         When the evidence is
    admitted to show the defendant’s intent to commit the offense
    charged, “the relevancy of the extrinsic offense derives from the
    defendant’s indulging himself in the same state of mind in the
    perpetration of both the extrinsic and charged offenses.”               
    Id.
    8
    Rule 404(b) of the Federal Rules of Evidence provides:
    Evidence of other crimes, wrongs, or acts is not
    admissible to prove the character of a person in order to
    show action in conformity therewith. It may, however, be
    admissible for other purposes, such as proof of motive,
    opportunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident.
    34
    “The reasoning is that because the defendant had unlawful intent in
    the extrinsic offense, it is less likely that he had lawful intent
    in the present offense.”      
    Id.
       An extrinsic offense is relevant to
    the issue of intent only if “an offense was in fact committed and
    the defendant in fact committed it.”         
    Id. at 912
    .   The proponent of
    the evidence need not establish these facts by a preponderance of
    the evidence; rather, “the evidence in the case must be sufficient
    to permit a jury, acting reasonably, to find the preliminary facts
    by a preponderance of the evidence.”            Anderson, 933 F.2d at 1269.
    “Once it is determined that the extrinsic offense requires the same
    intent as the charged offense and that the jury could find that the
    defendant committed the extrinsic offense, the evidence satisfies
    the first step under rule 404(b).”          Beechum, 
    582 F.2d at 913
    .
    As to Braugh, McMillan’s testimony satisfies the first part of
    the Beechum test.    McMillan’s testimony, if believed, would permit
    a reasonable jury to find by a preponderance of the evidence that
    Braugh committed fraud in both of the McMillan transactions,
    involving   the   same     intent   as    the   offenses   charged   in   the
    indictment.
    In performing the second part of the Beechum test,“the task
    for the court . . . calls for a commonsense assessment of all the
    circumstances surrounding the extrinsic offense.”             
    Id.
        Several
    factors affect the probative value of the evidence, including “the
    extent to which the defendant’s unlawful intent is established by
    other evidence, the overall similarity of the extrinsic and charged
    offenses, and the amount of time that separates the extrinsic and
    charged offenses.”       Chavez, 
    119 F.3d at 346-47
    .
    35
    McMillan’s testimony was highly probative as to Braugh’s
    intent.    “The mere entry of a not guilty plea in a conspiracy case
    raises     the    issue   of   intent          sufficiently      to    justify     the
    admissibility of extrinsic offense evidence.”                    United States v.
    Broussard, 
    80 F.3d 1025
    , 1039 (5th Cir. 1996).                In this case, the
    core of Braugh’s defense was that he lacked the intent to defraud.
    Braugh testified, and his attorney argued, that Braugh believed the
    “roll program” was a legitimate investment.               The government had no
    direct evidence of Braugh’s fraudulent intent.
    Braugh’s      arguments   as    to    the     dissimilarity       between     the
    McMillan transactions and those described in the indictment are
    without merit.     Braugh twice induced McMillan to give him money by
    describing investments that would result in a European bank paying
    $10 million to Braugh, yielding McMillan a substantial return in a
    very short time with no risk of losing his money.                 The first of the
    two transactions involved a letter of credit.                 The “roll program”
    transactions involved promises that the investors’ payments would
    enable Braugh and the other defendants to obtain a $10 million
    letter of credit from a foreign bank, which would return the
    investors’ money, plus interest and large profits, in a very short
    time.     Braugh told McMillan that Latrasse was in charge of the
    investments proposed in the second transaction, just as he would
    later tell the “roll program” victims that Latrasse was the expert
    in that investment plan.            The three to five years between the
    McMillan transactions and the later charged offenses does not so
    diminish    the   probative    value      of    the   evidence    as   to   make    it
    inadmissible.      Cf. United States v. Hernandez-Guevara, 
    162 F.3d 36
    863, 872–73 (5th Cir. 1998)(affirming district court’s admission of
    an 18-year-old conviction under Rule 404(b) to show intent), cert.
    denied, ___ U.S. ___, 
    119 S. Ct. 1375
     (1999); Chavez, 
    119 F.3d at 346-47
    (affirming district court’s admission of a 15-year-old prior
    conviction under Rule 404(b) to show intent).
    The district court instructed the jury on the limited purpose
    for which McMillan’s testimony could be considered:
    You are going to hear evidence that you may conclude is
    similar to the acts of Defendants Braugh and Latrasse
    that are charged in the indictment but that occurred on
    different occasions than those alleged in the indictment.
    You must not consider any of the evidence that you are
    about to hear in deciding if Mr. Braugh or Mr. Latrasse
    committed the acts charged in the indictment. However,
    you may consider the evidence for other very limited
    purposes. If you find beyond a reasonable doubt from the
    evidence you have heard up to now that Mr. Braugh or Mr.
    Latrasse committed the acts charged against them in the
    indictment, then you may consider the evidence that you
    are about to hear to determine whether Mr. Braugh or Mr.
    Latrasse had the state of mind or intent necessary to
    commit the crimes charged against them in the indictment.
    That is the only purpose for which you may consider the
    evidence that you are about to hear.
    The   district   court   repeated   this    admonition   in   his   final
    instructions to the jury.     “[T]he danger of unfair prejudice was
    minimized by the district court’s careful instructions to the
    jury.”   Gonzalez, 
    76 F.3d at 1348
    .        The high degree of probative
    value of McMillan’s testimony, balanced against the danger of
    unfair prejudice the testimony raised, in light of the limiting
    instructions, leads to the conclusion that the district court acted
    well within its discretion in admitting the testimony over Braugh’s
    Rule 404(b) objection.
    37
    Braugh’s argument that McMillan’s testimony was improper
    “guilt-by-association” evidence is similarly without merit.9                     “It
    is well established . . . that the government may not attempt to
    prove       a   defendant’s     guilt   by      showing   that    [the   defendant]
    associates with ‘unsavory characters.’”               United States v. Polasek,
    
    162 F.3d 878
    , 884 (5th Cir. 1998).                McMillan’s testimony did not
    suffer from this defect.           McMillan testified about Braugh’s acts
    and statements in inducing McMillan to make the two “investments.”
    The testimony focused on Braugh’s own conduct.                   It did not merely
    show    that         Braugh   associated     with    Latrasse.       See   
    id. at 885
    (distinguishing between evidence showing extrinsic wrongdoing on
    defendant’s part, which might be admissible to show knowledge or
    intent under Rule 404(b), and evidence showing the defendant
    associated with people who were later convicted of an offense
    similar to the charged offense, which would be inadmissible guilt-
    by-association evidence).           The district court did not err on this
    basis in admitting McMillan’s testimony.
    2.     Latrasse’s Challenges to McMillan’s Testimony
    Latrasse challenges McMillan’s testimony as inadmissible, both
    because it failed the Rule 404(b) criteria and because parts of
    McMillan’s testimony were hearsay as to Latrasse.
    9
    Braugh concedes that he did not object to McMillan’s
    testimony specifically on the ground that it was “guilt-by-
    association” evidence.    However, he argues that, based on the
    record, his Rule 404(b) objection suffices to preserve this
    argument on appeal. Of course, if Braugh did not timely object to
    McMillan’s testimony on this ground, the plain error standard would
    apply.   See Polasek, 
    162 F.3d at 883-84
    .        We conclude that
    McMillan’s testimony was not inadmissible “guilt-by-association”
    evidence even under the abuse of discretion standard.
    38
    Latrasse challenges the sufficiency of the evidence showing
    that “an offense was in fact committed and the defendant in fact
    committed it.”       Beechum, 
    582 F.2d at 913
    .               Specifically, Latrasse
    argues that McMillan’s testimony was insufficient to show that
    Latrasse      was   involved    with       Braugh       in   the     second     McMillan
    transaction. To determine whether there was sufficient evidence to
    satisfy the first part of the Beechum test, Latrasse’s hearsay
    objection must first be addressed. The statements Latrasse objects
    to   would,    if   admissible,      form       part    of   the     evidence   showing
    Latrasse’s involvement.
    Latrasse objected under Rule 802 to McMillan’s testimony that
    Braugh     described      Latrasse    as     the       person   in    charge     of   the
    investment, who was giving Braugh direction.                       The district court
    admitted      McMillan’s     testimony          against      Latrasse       under     Rule
    801(d)(2)(D), which defines statements of an agent or employee of
    the defendant as non-hearsay.               Latrasse challenges the district
    court’s ruling.10
    An out-of-court statement of a declarant is not hearsay if
    “[t]he statement is offered against a party and is . . . a
    statement     by    the   party’s    agent      or     employee,     made   during    the
    existence of the relationship.”                 FED. R. EVID. 801(d)(2)(D).           The
    proponent of the evidence must prove the preliminary facts that
    bring the statement within Rule 801(d)(2)(D), by a preponderance of
    10
    Braugh’s out-of-court statements about Latrasse were
    only arguably offered for the truth of the matters asserted in
    them. However, because the government did not make this argument
    at trial or on appeal, we do not rest our resolution of the issue
    on this ground.
    39
    the evidence.      See United States v. Bourjaily, 
    483 U.S. 171
    , 174
    (1987).   The statement itself may be considered in making this
    determination.     See 
    id.
        However, “[t]he contents of the statement
    . . . are not alone sufficient to establish . . . the agency or
    employment     relationship    and    scope      thereof   under    subdivision
    (D) . . . .”      FED. R. EVID. 801(d)(2).
    McMillan testified that Braugh told him “over and over and
    over that Kurt Latrasse was the man in charge” of the Gold Cloud
    Development and San Francisco Productions investments.                 McMillan
    also testified that Braugh said “he was basically acting as an
    agent for Kurt Latrasse.”            These statements provided the only
    evidence of Latrasse’s role as principal and Braugh’s as agent in
    the second transaction Braugh proposed to McMillan.                 Neither the
    loan document bearing Latrasse’s signature nor the circumstances
    under which Latrasse signed it provide proof that Braugh was acting
    as   Latrasse’s    agent.     In   light    of    the   lack   of   evidence   to
    corroborate Braugh’s out-of-court statements that he was acting as
    an agent for Latrasse, Rule 801(d)(2)(D) cannot serve as the basis
    for the admission of these statements against Latrasse.
    However, even if McMillan’s testimony should not have been
    admitted against Latrasse under Rule 801(d)(2)(D), other grounds
    for admission remove any harmful error.                 See United States v.
    Lopez, 
    979 F.2d 1024
    , 1033 (5th Cir. 1992).              The government urges
    that the testimony was admissible under Rule 801(d)(2)(E), which
    takes an out-of-court statement outside the hearsay rule if the
    statement “is offered against a party and is . . . a statement by
    a coconspirator of a party during the course and in furtherance of
    40
    the   conspiracy.”       FED. R. EVID.      801(d)(2)(E).             Although   the
    indictment did not allege an earlier conspiracy in connection with
    the McMillan transactions, “the conspiracy that forms the basis for
    admitting      coconspirators’     statements       need     not   be    the     same
    conspiracy for which the defendant is indicted.”                United States v.
    Arce, 
    997 F.2d 1123
    , 1128 (5th Cir. 1993).
    Before    admitting    evidence      under     Rule     801(d)(2)(E),       the
    proponent must “establish by a preponderance of the evidence that
    the declarant and the defendant were involved in a conspiracy and
    that the statements were made during and in furtherance of the
    conspiracy.”       United States v. Broussard, 
    80 F.3d 1025
    , 1038 (5th
    Cir. 1996); see also Bourjaily, 
    483 U.S. at 175-76
    .                     Under Rule
    104(a) of the Federal Rules of Evidence, a court “is not bound by
    the rules of evidence except those with respect to privileges” in
    determining the existence of preliminary facts to support the
    admission of evidence.       See also Bourjaily, 
    483 U.S. at 178
    .                 The
    out-of-court statement itself may be considered in determining the
    existence of the conspiracy and other preliminary facts.                     See 
    id.
    at 177–81; FED. R. EVID. 801(d)(2).                However, the out-of-court
    statement alone is not sufficient to support its own admission.
    See FED. R. EVID. 801(d)(2).
    Braugh made the statements as part of his efforts to induce
    McMillan to give him money a second time.                   There is sufficient
    evidence to show that Braugh and Latrasse conspired in this effort
    to defraud McMillan.         The trial record included the following
    evidence    that    Braugh   and   Latrasse        were     parties     to   such   a
    conspiracy:
    41
    •      McMillan testified that Braugh told him “over and
    over again that Latrasse was in charge” of the Gold
    Cloud Development transaction and the San Francisco
    Production movie deal.
    •      McMillan testified that Braugh said that “he was
    basically acting as an agent for Kurt Latrasse.”
    C      After McMillan refused to give Braugh any money
    unless Latrasse signed a loan document and personal
    guarantee drafted by McMillan’s staff, those
    documents were faxed to Latrasse.
    •      Braugh and McMillan telephoned the hotel where
    Latrasse was staying. They were connected to a man
    who identified himself as Kurt Latrasse. That man
    stated that he had received the documents that
    McMillan’s staff drafted and was signing them.
    C      Braugh faxed McMillan the loan document bearing a
    signature purporting to be that of Kurt Latrasse.
    •      The signature of Kurt Latrasse was very similar to
    Latrasse’s signature on other documents previously
    admitted as evidence in the trial.
    This   evidence    shows   the    predicate     facts   making   Braugh’s
    statements about Latrasse admissible under Rule 801(d)(2)(e).               The
    record discloses sufficient evidence to show by a preponderance of
    the   evidence   that    Latrasse      and   Braugh   conspired   to    defraud
    McMillan.     Braugh’s out-of-court statements in furtherance of the
    conspiracy were admissible under Rule 801(d)(2)(E) of the Federal
    Rules of Evidence.
    In light of this determination, we return to the first part of
    the Beechum test to consider whether McMillan’s testimony was
    admissible     against   Latrasse      under   Rule    404(b).     Under    the
    circumstances presented in this case, there was sufficient evidence
    to permit a rational jury to find that Latrasse committed an
    offense involving fraud for the purpose of the Beechum analysis.
    42
    McMillan’s testimony also satisfies Rule 403, the second part
    of the Beechum test.           Latrasse placed his intent at issue by
    testifying that he believed the “roll program” was legitimate. The
    evidence of the second McMillan transaction was probative rebuttal
    evidence, particularly given the similarity between Latrasse’s role
    in the extrinsic offense and his role in the charged offenses.
    Braugh described Latrasse to McMillan as the person in charge
    of the proposed investments; later, Latrasse was presented to the
    roll program investors as the expert in such transactions.             In both
    schemes, when an investor expressed concern or doubt, Latrasse was
    called   in    to    provide   reassurance.       McMillan’s   testimony   was
    probative on the issue of Latrasse’s intent.              The district court
    gave a careful limiting instruction to the jury, minimizing the
    prejudicial impact of McMillan’s testimony. See Gonzalez, 
    76 F. 3d at 1348
    .       Balancing the probative value against the danger of
    unfair prejudice in light of the limiting instruction, the district
    court    did   not    abuse    its   discretion    in   admitting   McMillan’s
    testimony against Latrasse over his Rule 404(b) objection.
    Moreover, even if McMillan’s testimony was inadmissible, the
    error was, on this record, harmless. See United States v. Cornett,
    
    195 F.3d 776
    , 784 (5th Cir. 1999).               The erroneous admission of
    McMillan’s      testimony      would   require     reversal    of   Latrasse’s
    conviction only if the evidence had a “substantial impact” on the
    verdict. See United States v. Dickey, 
    102 F. 3d 157
    , 163 (5th Cir.
    1996); United States v. El-Zoubi, 
    993 F.2d 442
    , 446 (5th Cir.
    1993).     The trial record discloses ample evidence of Latrasse’s
    guilt. The evidence shows that Latrasse repeatedly provided Hayes,
    43
    Schwinger, and Blackwelder assurances as to the legitimacy and
    profitability of the roll program long after he knew that the money
    had not been invested as promised and was not producing the
    promised   returns.      The   record    shows   that   Latrasse     gave   the
    investors detailed and varying explanations, promises, and excuses
    long after the investors’ money had already been disbursed to the
    defendants, including Latrasse.           In the context of the ample
    evidence of Latrasse’s criminal intent in the record, McMillan’s
    testimony did not have a “substantial impact” on the jury verdict
    so as to require reversal.
    V.   THE CHALLENGE TO THE JURY INSTRUCTIONS
    All three defendants argue that the district court erred in
    rejecting the defendants’ proposed jury instruction as to the
    relationship   between    breach   of     fiduciary     duty   and   criminal
    liability.
    John Shockey testified as the government’s expert witness on
    international banking practices and financial fraud. During cross-
    examination, Braugh’s attorney asked Shockey whether “people in the
    phony money world” ever used “people in the legitimate money world”
    to promote fraudulent investment schemes. In response, Shockey
    testified:
    Well, while that could happen, we would hope that proper
    due diligence would be done. And if the parties involved
    hold themselves out as knowledgeable and experienced
    financial advisors, they have a fiduciary responsibility
    to their clients to conduct due diligence to protect the
    interests of their clients.
    44
    Latrasse’s   attorney   later   asked   Shockey    several    questions   to
    clarify that “due diligence” and “fiduciary responsibility” were
    terms from civil, not criminal, law.
    Latrasse timely requested the trial court to include the
    following language in the court’s jury instructions: “Neither a
    failure to exercise due diligence nor a breach of fiduciary duty in
    and of themselves rise to the level of specific intent to defraud.
    Before you may find a Defendant guilty of fraud, you must find
    beyond a reasonable doubt that the Defendant had the specific
    intent to defraud.”     The other defendants joined in the request.
    The district court did not give the instruction.
    A   district   court’s   refusal   to   provide   a    requested   jury
    instruction is reviewed for abuse of discretion.           United States v.
    Jobe, 
    101 F.3d 1046
    , 1059 (5th Cir. 1996).        Such a refusal requires
    reversal only if the requested instruction (1) was a substantially
    correct statement of the law, (2) was not substantially covered in
    the charge as a whole, and (3) concerned an important point in the
    trial such that the failure to instruct the jury on the issue
    seriously impaired the defendant’s ability to present a given
    defense. See United States v. Webster, 
    162 F.3d 308
    , 322 (5th Cir.
    1998), cert. denied, ___ U.S. ___, 
    120 S. Ct. 83
     (1999); Jobe, 
    101 F.3d at 1059
    .
    The district court instructed the jury, in relevant part, as
    follows:
    The word “knowingly,” as that term has been used from
    time to time in these instructions, means that the act
    was done voluntarily and intentionally, not because of
    mistake or accident.
    45
    Good faith is a complete defense to the charges in the
    indictment, since good faith on the part of the defendant
    is inconsistent with intent to defraud, which is an
    essential part of the charges. The burden of proof is
    not on a defendant to prove his good faith, since a
    defendant has no burden to prove anything.            The
    government must establish beyond a reasonable doubt that
    the defendants acted with specific intent to defraud as
    charged in the indictment.
    One who expresses an opinion honestly held by him, or a
    belief honestly entertained by him, is not chargeable
    with fraudulent intent even though his opinion is
    erroneous or his belief is mistaken; and, similarly,
    evidence which establishes only that a person made a
    mistake in judgment or an error in management, or was
    careless, does not establish fraudulent intent.
    On the other hand, an honest belief on the part of the
    defendant that a particular business venture was sound
    and would ultimately succeed would not, in and of itself,
    constitute “good faith” as used in these instructions if,
    in carrying out that venture, the defendants knowingly
    made false or fraudulent representations to other with
    the intent to deceive them.
    The district court also instructed the jury on the level of
    intent required for conviction on each of the offenses charged in
    the indictment.   As to the conspiracy charge, the district court
    instructed the jury as follows:
    For you to find a defendant guilty of conspiracy,
    you must be convinced that the government has
    proved . . . beyond a reasonable doubt . . . [t]hat the
    defendant knew the unlawful purpose of the agreement and
    joined in it willfully, that is, with the intent to
    further the unlawful purpose . . . .
    One may become a member of a conspiracy without
    knowing all the details of the unlawful scheme or the
    identities of all the other alleged conspirators. If a
    defendant understands the unlawful nature of the plan or
    scheme and knowingly and intentionally joins in that plan
    or scheme on one occasion, that is sufficient to convict
    him of conspiracy . . . .
    46
    The district court also instructed the jury on the Pinkerton
    doctrine of accomplice liability.11
    As to the interstate transportation of stolen property charge,
    the district court instructed the jury that “to find the defendant
    guilty of this crime, you must be convinced that the government has
    proved . . . beyond a reasonable doubt [that] the defendant devised
    a scheme to defraud one or more persons of at least $5,000.”           The
    district court instructed the jury on the elements of mail fraud
    and wire fraud, in relevant part, as follows:
    For you to find the defendant guilty of this crime,
    you must be convinced that the government has proved each
    of the following beyond a reasonable doubt:
    First: That the defendant knowingly created a scheme
    to defraud, that is a scheme to obtain money, funds, or
    credits from another by means of false pretenses,
    representations and promises substantially as alleged in
    this Indictment;
    Second: That the defendant acted with the specific
    intent to commit fraud . . . .
    The district court’s instructions to the jury, considered as a
    whole, substantially covered the defendants’ requested instruction.
    Defendants fully presented their theory of defense, their belief
    that the roll program was a legitimate investment.         In his closing
    argument, Latrasse’s attorney argued that a breach of fiduciary
    duty   does   not   necessarily   give   rise   to   criminal   liability.
    “[C]ounsel was not circumscribed in his argument to the jury” on
    11
    Under Pinkerton v. United States, 
    328 U.S. 640
    , 666
    (1946), “[a] party to a continuing conspiracy may be responsible
    for a substantive offense committed by a coconspirator pursuant to
    and in furtherance of the conspiracy, even if that party does not
    participate in the substantive offense or have any knowledge of
    it.” United States v. Castillo, 
    179 F.3d 321
    , 324 n. 4 (5th Cir.
    1999)(quoting United States v. Elwood, 
    993 F.2d 1146
    , 1151 (5th
    Cir. 1993)) (alterations in original), cert. granted, ___ U.S. ___,
    
    2000 WL 21143
     (2000).
    47
    the theory of defense.      United States v. Storm, 
    36 F.3d 1289
    , 1295
    (5th Cir. 1994). The district court’s charge adequately instructed
    the jury that they could not convict any defendant unless the
    government proved, beyond a reasonable doubt, that the defendant
    had the specific intent to defraud.         See United States v. Giraldi,
    
    86 F.3d. 1368
    , 1376 (5th Cir. 1996) (affirming district court’s
    denial of a requested instruction on good faith because the charge
    detailed specific intent and defined “willfully” and “knowingly”).
    The defendants were not entitled to more specific instructions on
    the distinctions between the civil terms “due diligence” and
    “fiduciary responsibility” on the one hand, and criminal liability
    on the other.
    The district court’s refusal to give the defendants’ requested
    instruction was not error.
    VI.   THE CHALLENGES TO THE SUFFICIENCY OF THE EVIDENCE
    All defendants challenge the sufficiency of the evidence
    supporting some or all of their convictions.           In assessing these
    challenges, “[t]his court must view the evidence in the light most
    favorable to the jury verdict and affirm if a rational trier of
    fact could find that the government proved all essential elements
    beyond a reasonable doubt.”         Giraldi, 
    86 F.3d 1368
    , 1372 (5th Cir.
    1996).      We consider “the countervailing evidence as well as the
    evidence that supports the verdict.”          United States v. Brown, 
    186 F.3d 661
    , 664 (5th Cir. 1999)(quoting Giraldi, 
    86 F.3d at 1272
    ).
    “It    is   not   necessary    that   the   evidence   exclude   every
    reasonable hypothesis of innocence or be wholly inconsistent with
    every conclusion except that of guilt provided a reasonable trier
    48
    of fact could find that the evidence establishes guilt beyond a
    reasonable doubt.”      United States v. Bell, 
    678 F.2d 547
    , 549 (5th
    Cir. Unit B 1982); see United States v. Soape, 
    169 F.3d 257
    , 264
    (5th Cir.), cert. denied, ___ U.S. ___, 
    119 S. Ct. 2353
     (1999).
    The jury is free to choose among reasonable constructions of the
    evidence.    See United States v. Ortega Reyna, 
    148 F.3d 540
    , 543
    (5th Cir. 1998).    If, however, “the evidence, viewed in the light
    most favorable to the government, gives equal or nearly equal
    circumstantial support to a theory of guilt and a theory of
    innocence, the conviction should be reversed.       United States v.
    Pennington, 
    20 F.3d 593
    , 597 (5th Cir. 1994); see Ortega Reyna, 
    148 F.3d at 543
    .     “When the evidence is essentially in balance, a
    reasonable jury must necessarily entertain a reasonable doubt.”
    Ortega Reyna, 
    148 F.3d at 543
    .
    A.     Richards
    Richards argues that the evidence was insufficient to support
    his conviction for inducing a person to travel in interstate
    commerce in furtherance of a scheme to defraud and his conviction
    for wire fraud.        He does not challenge the sufficiency of the
    evidence supporting his conspiracy conviction.
    1.   Interstate Transportation
    
    18 U.S.C. § 2314
     “requires proof of two elements to support a
    conviction: (1) that the defendant devised a scheme intending to
    defraud victim of money or property of a minimum value of $
    5,000,and (2) that as a result of this scheme, a victim was induced
    to travel in interstate commerce.”      United States v. Myerson, 18
    
    49 F.3d 153
    , 164 (2d Cir. 1994); see also United States v. Biggs, 
    761 F.2d 184
    , 187 (4th Cir. 1985).12
    Richards does not challenge the proof that he induced Bert
    Hayes to travel from Arkansas to Texas to meet with Richards and
    deliver a $250,000 check.         Richards’ argument is narrow.         He
    asserts that the evidence was insufficient to permit a reasonable
    jury to find that he induced Hayes to cross state lines with the
    specific intent to defraud Hayes. See United States v. Snelling,
    
    862 F.2d 150
     (8th Cir. 1988) (holding that it is an essential
    element of the interstate transportation offense under section 2314
    that the defendant had the intent to defraud at the time the victim
    crossed state lines as a result of the defendant’s inducement).
    The record, viewed in the light most favorable to the verdict,
    contains evidence sufficient to support Richards’ conviction on
    count 2.      Richards promoted the roll program to Hayes, promising
    that    the   money   invested   would   be   safe   and   would   generate
    substantial returns.     The roll program described to Hayes did not
    exist.      John Shockey, the government’s expert on international
    banking practices and financial fraud, testified that no such
    investment existed in the legitimate financial world.
    12
    Section 2314 provides in relevant part:
    Whoever, 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, . . . induces any person .
    . . to travel in, or be transported in interstate . . .
    commerce in the execution or concealment of a scheme or
    artifice to defraud that person . . . of money or
    property of $ 5,000 or more . . . [s]hall be fined under
    this title or imprisoned not more than ten years, or
    both.
    50
    A reasonable jury could conclude that Richards knew the roll
    program was not legitimate when he induced Hayes to travel to Texas
    with his $250,000 check.    Richards pitched an investment program
    that did not exist in the legitimate financial world. He continued
    his participation in the scheme, soliciting additional investors
    and later lulling them into continuing to believe that the program
    existed and was working long after he knew that at least some of
    the money had gone to the promoters rather than to the investors
    and that they investors had not received any of the money promised
    them. The evidence that Richards continued to solicit and reassure
    investors after he knew that the program had failed to perform as
    he had promised supports the inference that Richards knew the
    program was a fraud from the outset, when he induced Hayes to
    invest in the program and to cross state lines to deliver his
    check.
    2.   Wire fraud
    “In order to establish wire fraud [under 
    18 U.S.C. § 1343
    ],
    the Government must prove that a defendant knowingly participated
    in a scheme to defraud, that interstate wire communications were
    used to further the scheme, and that the defendants intended that
    some harm result from the fraud.”     United States v. Powers, 
    168 F.3d 741
    , 746 (5th Cir.), cert. denied, ___ U.S. ___, 
    120 S. Ct. 360
     (1999); see also United States v. St. Gelais, 
    952 F.2d 90
    , 95
    (5th Cir. 1992).   “An intent to defraud for the purpose of personal
    gain satisfies the ‘harm’ requirement of the wire fraud statute.”
    Powers, 
    168 F.3d at 746
    ; St. Gelais, 
    952 F.2d at 95
    .    A use of the
    interstate wire facilities is in furtherance of a scheme to defraud
    51
    if it is “incident to an essential part of the scheme.”       Schmuck v.
    United States, 
    489 U.S. 705
    , 710–11 (1989) (citations omitted); see
    also Powers, 
    168 F.3d 741
    , 747 (5th Cir. 1999).         A defendant need
    not personally have made the communication on which the wire fraud
    count is based, nor have directed that it be made.          “The test to
    determine whether a defendant caused [interstate wire facilities]
    to be used is whether the use was reasonably foreseeable.”        United
    States v. Massey, 
    827 F.2d 995
    , 1002 (5th Cir. 1987)(interpreting
    the mail fraud statute).13       For a defendant to be convicted of wire
    fraud, it is sufficient that the defendant could reasonably have
    foreseen the use of the wires; the interstate nature of the wire
    communication need not have been reasonably foreseeable.             See
    United States v. Lindemann, 
    85 F.3d 1232
    , 1241 (7th Cir. 1996);
    United States v. Blackmon, 
    839 F.2d 900
     (2d Cir. 1988); cf. United
    States v. Kelly, 
    569 F.2d 928
    , 934 (5th Cir. 1978)(holding that the
    interstate transportation offense, 
    18 U.S.C. § 2314
    , included no
    level of mens rea as to the interstate nexus because the interstate
    nexus        requirement   was   merely   “the   linchpin   for   federal
    jurisdiction”); United States v. Darby, 
    37 F.3d 1059
    , 1067 (4th
    Cir. 1994)(holding the same under 
    18 U.S.C. § 875
    , which prohibits
    the transmission of a threatening communication in interstate
    commerce).
    Richards asserts that the use of the wires charged in count 3
    of the indictment was not reasonably foreseeable.             This count
    13
    Because the language of the mail fraud and wire fraud
    statutes are so similar, cases construing one are applicable to the
    other. See United States v. Herron, 
    825 F.2d 50
    , 54 n. 5 (5th Cir.
    1987); United States v. Bentz, 
    21 F. 3d 37
    , 40 (3d Cir. 1994).
    52
    charges the September 17, 1991 wire transfer of $7,500 from Texas
    to Kurt Latrasse in California.    The record evidence supports the
    conclusion that the wire transfer to Latrasse was a distribution of
    proceeds from the roll program scheme.    Richards reasonably could
    have foreseen that a distribution of the investors’ funds to the
    defendant promoters might be made by use of wire transfers.     The
    evidence was sufficient to support Richards’ conviction on count 3.
    B.   Braugh
    Braugh challenges the sufficiency of the evidence supporting
    his conspiracy, interstate transportation, wire fraud, and mail
    fraud convictions.   We uphold the convictions on all six counts.
    1.     Conspiracy
    Braugh was convicted of conspiracy to commit mail and wire
    fraud under 
    18 U.S.C. § 371
    .   “To establish a violation of [section
    371], the government must prove beyond a reasonable doubt (1) that
    two or more people agreed to pursue an unlawful objective, (2) that
    the defendant voluntarily agreed to join in the conspiracy, and (3)
    that one or more members of the conspiracy committed an overt act
    to further the objectives of the conspiracy.”      United States v.
    Soape, 
    169 F.3d 257
    , 264 (5th Cir.), cert. denied, ___ U.S. ___,
    
    119 S. Ct. 2353
     (1999).
    “To be guilty of conspiracy to commit mail [and wire] fraud,
    [the defendant] must have had the requisite intent to commit mail
    [and wire] fraud.”    United States v. Sneed, 
    63 F.3d 381
    , 385 (5th
    Cir. 1995).    Neither “[m]ail fraud [nor wire fraud], however, has
    [a] specific intent requirement regarding use of the mails [or wire
    facilities].”   
    Id.
     (quoting United States v. Massey, 
    827 F.2d 995
    ,
    53
    1002 (5th Cir. 1987)).           “The test to determine whether a defendant
    caused the mails [or interstate wire facilities] to be used is
    whether the use was reasonably foreseeable. The defendant need not
    intend to cause the mails [or wire facilities] to be used.”                          Sneed,
    
    63 F.3d at 385
        (quoting     Massey,     
    827 F.2d at 1002
    ).          “The
    government’s       burden,      therefore,      is    to    demonstrate         beyond    a
    reasonable doubt that [the alleged conspirators] agreed to engage
    in a scheme to defraud in which they contemplated that the [wire
    facilities] would likely be used.”               Sneed, 
    63 F.3d at 385
     (quoting
    Massey, 
    827 F.2d at 1002
    ).
    Braugh contends that the evidence was not sufficient to permit
    a reasonable jury to conclude that he was a party to a conspiracy
    to commit wire fraud and mail fraud.                     At most, he claims, the
    evidence      shows      that   the   defendants     participated          in    a   failed
    business together, not that they agreed to commit a crime.                           Braugh
    points out that he was not present when either Schwinger or Hayes
    signed contracts to invest in the roll program.
    The lack of direct evidence of agreement to commit a crime
    does    not    require     reversal.       Each      element      of   a   section      371
    conspiracy may be inferred from circumstantial evidence.                                See
    United States v. Faulkner, 
    17 F.3d 745
    , 768 (5th Cir. 1994).
    Concert of action can indicate an agreement.                   See United States v.
    Lopez, 
    979 F.2d 1024
    , 1029 (5th Cir. 1992). The record contains
    ample    circumstantial         evidence   to     support      Braugh’s         conspiracy
    conviction.        Braugh and others induced Hayes, Schwinger, and
    Blackwelder to part with their money and in lulling them into
    continued belief that their money was safely invested.                           The bank
    54
    records showed     that   nearly    all   Hayes’s   money   was   moved   from
    Braugh’s Shearson Lehman account within one month of deposit and
    transferred to accounts in the defendants’ names at different
    banks, including Braugh’s accounts.          Most of the money Schwinger
    invested was also     transferred from a Shearson Lehman account to
    accounts held by Richards, Braugh, and Latrasse, within a short
    time.
    The   evidence   showed   the    defendants’    coordinated    acts   to
    implement their fraudulent scheme, including the use of the mails
    and wire facilities to distribute the proceeds of the fraud and to
    lull the investors as they grew anxious about their money.                 In
    light of the other evidence in the record, the jury was free to
    disbelieve Braugh’s self-serving testimony that he thought the
    “roll program” was a legitimate investment.           See United States v.
    Brown, 
    186 F.3d 661
    , 667 (5th Cir. 1999); United States v. Ruiz,
    
    860 F.2d 615
    , 619 (5th Cir. 1988).        The evidence was sufficient to
    permit a reasonable jury to find that Braugh conspired to commit
    wire and mail fraud.
    2.     Interstate Transportation
    Braugh argues that there is no evidence that he, rather than
    Richards, induced Hayes to travel from Arkansas to Texas with the
    $250,000 check.    The interstate transportation element “is merely
    the linchpin for federal jurisdiction and bears no relationship, in
    terms of culpability, to the underlying criminal acts which are the
    objects of [section] 2314.”        United States v. Kelly, 
    569 F.2d 928
    ,
    934 (5th Cir. 1978) (quoting United States v. Ludwig, 
    523 F.2d 705
    ,
    707 (8th Cir. 1975)).      The government need not prove that Braugh
    55
    knew that Hayes would travel in interstate commerce.              See Kelly,
    
    569 F.2d at 934
    .     Indeed, the government need not show that Braugh
    directly caused Hayes to travel across state lines.               See 
    id.
     at
    934–35.   It is enough if Braugh “was a motivating force in the
    transportation.”     
    Id. at 935
     (quoting Thogmartin v. United States,
    
    313 F.2d 589
     (8th Cir. 1963)).
    In   Kelly,    this   court   upheld    a   section   2314   interstate
    transportation     conviction   over    a   sufficiency    of   the   evidence
    challenge.   The defendant had devised a scheme to sell shares in a
    nonexistent mutual fund.           He sold shares in the fund to an
    individual, who in turn transferred them to a third party. As part
    of the transaction, the immediate and secondary purchasers met in
    the Bahamas.     This travel provided the interstate transportation
    element of the original seller’s section 2314 conviction.                  The
    court held that the original seller was a “motivating force” in the
    ultimate buyer’s interstate travel, despite the fact that it was
    the original buyer who induced the ultimate buyer to make the trip.
    In this case, although Richards persuaded Hayes to cross state
    lines to deliver his roll program check, Braugh’s involvement in
    the roll program made him a “motivating force” in Hayes’s travel.
    The evidence sufficed to permit a reasonable jury to find that
    Braugh violated section 2314.
    3.      Wire Fraud
    Braugh was convicted of three counts of wire fraud under 
    18 U.S.C. § 1343
    .     His limited claim on appeal is that because there
    was insufficient evidence to show that he knowingly participated in
    a scheme to defraud, there was also insufficient evidence to
    56
    support his wire fraud convictions.     The same record evidence that
    led to the rejection of Braugh’s sufficiency of the evidence
    challenge to his conspiracy conviction also leads this court to
    reject Braugh’s challenge to the wire fraud convictions.
    4.     Mail Fraud
    Count 6 of the indictment charged Braugh with mail fraud under
    
    18 U.S.C. § 1341
    , based on Braugh’s November 22, 1993 letter to
    Blackwelder, promising to send a cashier’s check to repay the
    $5,000 “loan.”   Braugh argues that there was insufficient evidence
    to show that he participated in a scheme to defraud.    The argument
    is without merit.
    C.   Latrasse
    Latrasse challenges his conviction on all counts on the basis
    of insufficiency of the evidence.     Latrasse argues that because he
    did not talk to any investors until after they had made their
    investments, he did not induce anyone to part with their money.
    Latrasse also asserts that he believed the roll program to be
    legitimate.
    1.     Conspiracy
    The record presented sufficient evidence to permit a rational
    jury to find Latrasse guilty of conspiracy to commit wire and mail
    fraud. The fact that Latrasse did not speak to the investors until
    after they had parted with their funds does not preclude his
    membership in the conspiracy.   Ample evidence showed that Latrasse
    worked to induce the participants to continue believing that the
    roll program existed and that their money was safe.         Latrasse
    lulled the investors when they protested the lack of the promised
    57
    payments.   Latrasse’s   lulling   efforts   furthered   the   fraudulent
    scheme.   Cf. United States v. Allen, 
    76 F.3d 1348
    , 1363 (5th Cir.
    1996)(holding that actions designed to avoid detection after the
    defendants had control over the money produced by the fraud were in
    furtherance of the fraud under the mail fraud statute);         cf. also
    United States v. Perry, 
    152 F.3d 900
    , 904 (8th Cir. 1998)(holding
    that mailings designed to lull the victims into a false sense of
    security and hide a fraudulent scheme are considered an overt act
    in furtherance of a conspiracy to commit mail fraud and wire
    fraud), cert. denied, ___ U.S. ___, 
    119 S. Ct. 1088
     (1999).
    The evidence was also sufficient for the jury to disbelieve
    Latrasse’s self-serving testimony and conclude that Latrasse knew
    the investment program was not legitimate.          Latrasse knew the
    investors were not receiving the payments as promised when he
    repeatedly assured them that their money was safely invested and
    earning returns.    He knew that money received from two investors
    had been quickly transferred from the initial deposits in the
    Shearson Lehman investment accounts to the defendants, including
    Latrasse.    There was ample circumstantial evidence showing that
    Latrasse knew the roll program was fraudulent when he assured the
    investors of its legitimacy. There was also clear evidence showing
    that the use of the mails and wire facilities in furtherance of the
    fraud was reasonably foreseeable.       Latrasse’s challenge to his
    conviction on count 1 fails.
    2.   Interstate transportation
    A party to a conspiracy may be held criminally responsible for
    a substantive offense committed by a coconspirator in furtherance
    58
    of the conspiracy if the offense was reasonably foreseeable and was
    committed during that party’s membership in the conspiracy.           See
    United States v. Castillo, 
    179 F.3d 321
    , 324 n. 4 (5th Cir.
    1999)(describing the Pinkerton doctrine), cert. granted, ___ U.S.
    ___, 
    2000 WL 21143
     (2000); United States v. Dean, 
    59 F.3d 1479
    ,
    1490 n. 20 (5th Cir. 1995)(holding that the offense must have been
    reasonably   foreseeable   for   the   defendant   to   face   accomplice
    liability under the Pinkerton doctrine); United States v. Basey,
    
    816 F.2d 980
    , 998–99 (5th Cir. 1987).       We have already found the
    evidence sufficient to show that Latrasse conspired to commit mail
    and wire fraud and that Richards and Braugh induced Hayes to travel
    in interstate commerce with the intent to defraud.
    The question as to Latrasse’s conviction on count 2 is the
    sufficiency of the evidence to show that Latrasse was a member of
    the conspiracy when Richards induced Hayes to cross state lines on
    September 5, 1991 to participate in the roll program.            Latrasse
    points out that he did not begin communicating with the roll
    program investors until early 1992. However, the record also shows
    that Latrasse received a $7,500 wire transfer from Braugh’s Bank of
    Corpus Christi account on September 11, 1991 and a $5,000 transfer
    on September 17, 1991.     Brewer testified that Latrasse received
    money from Hayes’s deposit, only days after Hayes wrote his check.
    A reasonable jury could conclude that Latrasse was a member of the
    conspiracy when Hayes crossed state lines to deliver the check.
    There is no basis to reverse Latrasse’s conviction on count 2.
    59
    3.     Wire fraud
    Latrasse challenges his convictions on the three counts of
    wire   fraud.      The   first   of    these       counts   involved    the   $7,500
    September 11, 1991 wire transfer from Braugh’s Bank of Corpus
    Christi account in Texas to Latrasse in California.                    The evidence
    was sufficient to permit a rational jury to conclude that this
    transfer was a distribution of proceeds from the fraudulent scheme,
    in   furtherance    of   that    scheme      and    reasonably      foreseeable    to
    Latrasse.
    The second count, Count 4, involved a fax from Latrasse in
    California to Schwinger in Texas on June 19, 1992.                     In the fax,
    Latrasse promised a distribution of funds to Schwinger and her
    partners on or before June 30, 1992.                  The evidence was clearly
    sufficient for a reasonable jury to find that Latrasse sent this
    fax to further the fraudulent scheme by lulling Schwinger into
    continuing to believe that her money was safely invested, as
    promised.   See United States v. Allen, 
    76 F.3d 1348
    , 1363 (5th Cir.
    1996)(holding that “actions taken to avoid detection, or to lull
    the fraud victim into complacency” are in furtherance of the fraud
    for the purpose of the wire fraud statute); see also United States
    v. Maze, 
    414 U.S. 395
    , 402–03 (1974).               The evidence was sufficient
    to support Latrasse’s conviction on count 4.
    The third wire fraud offense, alleged in count 5 of the
    superseding indictment, involved a February 2, 1994 fax that
    Latrasse sent from California to Blackwelder in Texas. In the fax,
    Latrasse    promised     to   send    Blackwelder      a    check    returning    his
    investment.      Again, the evidence was sufficient to support a
    60
    finding that Latrasse sent this fax to lull Blackwelder into
    continuing to believe the investment was legitimate.           There was
    sufficient evidence to permit a rational jury to convict Latrasse
    on count 5 of the indictment.
    4.   Mail fraud
    The mail fraud offense alleged in count 6 of the superseding
    indictment arose from a November 22, 1993 letter Braugh sent to
    Blackwelder by mail.        In the letter, Braugh promised to send
    Blackwelder a cashier’s check repaying the July 8, 1993 $5,000
    “loan.”
    The evidence show that in the weeks leading up to the loan,
    Blackwelder had asked Braugh several times when he would receive
    the promised payments from the roll program.          Braugh repeatedly
    assured Blackwelder that he would receive the money soon, giving
    such excuses as “it’s going to happen in a day, it’s going to
    happen in two days, it’s going to happen in a week, there’s a
    problem, a little problem, it’s going to be good in a day.”
    Blackwelder continued to press.          As part of Braugh’s efforts to
    lull Blackwelder into believing the roll program was legitimate,
    Braugh explained that there were problems in Europe that needed
    attention and asked for a $5,000 loan so that Braugh could travel
    to Europe and “help expedite the transaction.”
    Blackwelder tried to recover his money from Braugh.              In a
    telephone    conversation     on   November   19,   1993,   Braugh     told
    Blackwelder that the unpaid loan “was the only mistake he made in
    executing his little ordeal here.” Three days later, Braugh sent
    Blackwelder the letter that forms the basis for count 6.             In the
    61
    letter, Braugh promised to give Blackwelder a cashier’s check to
    repay the loan within one week.
    After the November 22, 1993 letter, Blackwelder did not see or
    speak to Braugh for approximately six months.                    However, Latrasse
    continued to call Blackwelder to assure him that payment on his
    roll program      investment   was    imminent.           On    February     2,   1994,
    Latrasse sent Blackwelder a fax, telling Blackwelder that Latrasse
    had designated a “disinterested third party to deliver the check
    for the pay-out” on Blackwelder’s investment.                   The fax continued:
    It is regrettable that this project took longer than
    programmed and that this led to the hard feelings between
    you and Roger.    Hope that we can quickly resolve the
    remaining business between yourself and SAI [Associates]
    and Roger’s personal obligation to you.
    A reasonable jury could conclude that Braugh’s November 22,
    1993 letter to Blackwelder was in furtherance of the scheme to
    defraud. Braugh solicited the loan from Blackwelder in the context
    of reassuring Blackwelder about the roll program.                      Braugh told
    Blackwelder that the $5,000 loan would help him make a trip to
    Europe to fix problems with the roll program and “expedite the
    transaction.”     Three days before he sent Blackwelder the November
    22,   1993   letter   promising      to    repay    the    $5,000,     Braugh     told
    Blackwelder that failing to repay the $5,000 was “the only mistake
    he made” in connection with the roll program.                    The November 22,
    1993 letter was another instance of lulling, another assurance that
    money promised would be paid soon.              In his February 2, 1994 fax to
    Blackwelder, Latrasse, seeking to reassure Blackwelder about the
    roll program generally, stated: “I hope that we can quickly resolve
    the   remaining    business    between         yourself   and    SAI   and    Roger’s
    62
    personal obligation to you.”          Braugh obtained the $5,000 “loan”
    through his involvement in the roll program.              Latrasse was clearly
    aware that Braugh had done so.         Braugh’s and Latrasse’s statements
    and   written    communications       evidence     their     recognition     that
    assurances about the $5,000 transaction were part of keeping
    Blackwelder     satisfied   about     the   status   of     the   roll   program.
    Braugh’s lulling letter “was incident to an essential part” of the
    roll program scheme, which Latrasse could reasonably have foreseen.
    The evidence was sufficient to support Latrasse’s conviction
    on count 6.
    VII. THE RESTITUTION ORDER
    Richards and Braugh argue that the district court erred in
    applying the Mandatory Victims Restitution Act (MVRA) in setting
    the amount of restitution.          They contend that the Ex Post Facto
    Clause of the United States Constitution precludes the application
    of the MVRA to conduct occurring before April 24, 1996, the
    effective   date    of   the   Act.         The   conduct    underlying     their
    convictions occurred well before then.            Defendants did not       object
    to the orders of restitution at trial.                 Plain error applies.
    United States v. Cihak, 
    137 F.3d. 252
    , 264 n. 7 (5th Cir.), cert.
    denied, ___ U.S. ___, 
    119 S. Ct. 118
     (1998), and cert. denied, ___
    U.S. ___, 
    119 S. Ct. 203
     (1998).
    The MVRA amended the Victim Witness Protection Act (“VWPA”),
    
    18 U.S.C. §§ 3663
    –3664.        Before the amendments to the VWPA, the
    statute required a court to consider a defendant’s ability to pay
    in setting the amount of a restitution order.                 As amended, the
    statute provides that “the court shall order restitution to each
    63
    victim in the full amount of each victim’s losses as determined by
    the court and without consideration of the economic circumstances
    of the defendant.” 
    18 U.S.C. § 3664
    (f)(1)(A). Richards and Braugh
    contend that the MVRA, by forbidding the trial court to consider a
    defendant’s ability to pay in setting the amount of restitution,
    causes an increase in the punishment a defendant faces for a given
    offense.   They argue that “retroactive” application of the Act to
    conduct occurring before its effective date violates the Ex Post
    Facto Clause.
    The      MVRA   provides   that      it    “shall,    to     the     extent
    constitutionally      permissible,     be      effective   for         sentencing
    proceedings in cases in which the defendant is convicted on or
    after the date of enactment of this Act.”            See 
    18 U.S.C. § 2248
    (statutory notes). If application of the MVRA to a given defendant
    would violate the Ex Post Facto Clause, the district court must
    apply the pre-amendment VWPA in determining restitution.
    A law violates the Ex Post Facto Clause if (1) it “appl[ies]
    to   events     occurring   before     its     enactment,”       and     (2)    it
    “disadvantage[s] the offender affected by it by altering the
    definition of criminal conduct or increasing the punishment for his
    crime.”    Lynce v. Mathis, 
    519 U.S. 433
    , 441 (1997)(quoting Weaver
    v. Graham, 
    450 U.S. 24
    , 30 (1981)).            Although this court has not
    yet addressed the issue, several federal circuit courts have
    considered whether application of the MVRA to conduct occurring
    before its enactment would violate the Ex Post Facto Clause.                   The
    majority of these courts have held that retroactive application of
    the MVRA would violate the Ex Post Facto Clause.                Compare United
    64
    States v. Siegel, 
    153 F.3d 1256
    , 1260 (11th Cir. 1998)(holding that
    it would violate the Ex Post Facto Clause to apply the MVRA to a
    person whose criminal conduct occurred prior to its passage);
    United States v. Edwards, 
    162 F.3d 87
    , 89–90 (3d Cir. 1998)(same);
    United States v. Baggett, 
    125 F.3d 1319
    , 1321–1322 (9th Cir.
    1997)(same); United States v. Thompson, 
    113 F.3d 13
    , 15 n. 1 (2d
    Cir. 1997)(same);       United States v. Rezaq, 
    134 F.3d 1121
    , 1141 n.
    13 (D.C. Cir.), cert. denied, ___ U.S. ___, 
    119 S. Ct. 90
     (1998);
    and United States v. Williams, 
    128 F.3d 1239
    , 1241 (8th Cir.
    1997)(holding that an order of restitution under the MVRA is
    punishment under the Ex Post Facto Clause and suggesting that
    retroactive application of the Act would violate that clause); with
    United   States    v.     Nichols,   
    169 F.3d 1255
    ,   1278–80   (10th
    Cir.)(holding that retroactive application of the MVRA did not
    violate the Ex Post Facto Clause), cert. denied, ___ U.S. ___, 
    120 S. Ct. 336
     (1999); United States v. Newman, 
    144 F.3d 531
    , 537 (7th
    Cir. 1998)(same).
    The circuits approving retroactive application of the MVRA,
    the minority approach, have reasoned that restitution orders under
    the Act are not punishment for the purpose of Ex Post Facto Clause
    analysis.     This circuit’s precedent does not provide a basis to
    adopt this reasoning.        This circuit has held that restitution
    imposed under the VWPA is punishment for the purpose of the Ex Post
    Facto Clause.     See United States v. Rose, 
    153 F.3d 208
    , 211 n. 1
    (5th Cir. 1998); United States v. Corn, 
    836 F.2d 889
    , 895–96 (5th
    Cir. 1988).     By requiring the court to order restitution in the
    full amount of loss, without considering the defendant’s ability to
    65
    pay, the MVRA increases the severity of the punishment a defendant
    faces as compared to the pre-amendment VWRA.              See Siegel, 
    153 F.3d at 1260
    ; see also Lindsey v. Washington, 
    301 U.S. 397
     (1937).
    Retroactive application of the MVRA to Richards and Braugh would
    violate the Ex Post Facto Clause.
    However,      Braugh    and   Richards      have    not    shown    that    the
    challenged   orders     of    restitution        resulted      from     retroactive
    application of the MVRA.       Nothing in the record suggests that the
    district   court    applied    the   MVRA   in    this   case.        During    each
    defendant’s sentencing, the district court adopted the presentence
    report, which included specific findings about that defendant’s
    ability to pay.     Under the plain error standard of review, we have
    held such adoption to be sufficient evidence that the district
    court did consider a defendant’s financial resources in ordering
    restitution under the pre-amendment VWPA.                See United States v.
    Greer, 
    137 F.3d 247
    , 252 (5th Cir.), cert. denied, ___ U.S. ___,
    
    118 S. Ct. 2305
     (1998).        We find no plain error in the district
    court’s orders of restitution.
    VIII.      CONCLUSION
    For the reasons assigned, the convictions and sentences of
    defendants Richards, Braugh, and Latrasse are AFFIRMED.
    66
    

Document Info

Docket Number: 98-20441

Citation Numbers: 204 F.3d 177

Filed Date: 2/23/2000

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (78)

United States v. Gonzalez , 76 F.3d 1339 ( 1996 )

United States v. Pace , 10 F.3d 1106 ( 1993 )

Pinkerton v. United States , 66 S. Ct. 1180 ( 1946 )

United States v. Billie Mac Jobe, Stephen Taylor, Philip ... , 101 F.3d 1046 ( 1996 )

United States v. Martha West Greer , 137 F.3d 247 ( 1998 )

Schmuck v. United States , 109 S. Ct. 1443 ( 1989 )

United States v. Broussard , 80 F.3d 1025 ( 1996 )

United States v. Daniel J. Fern , 155 F.3d 1318 ( 1998 )

Vern Mac Thogmartin v. United States , 313 F.2d 589 ( 1963 )

United States of America, Appellant-Cross-Appellant v. ... , 86 F.3d 1368 ( 1996 )

United States v. David Lamar Faulkner, Spencer H. Blain, Jr.... , 17 F.3d 745 ( 1994 )

United States v. Jimmy C. Bailey , 111 F.3d 1229 ( 1997 )

97-cal-daily-op-serv-7713-97-daily-journal-dar-12370-united-states , 125 F.3d 1319 ( 1997 )

United States v. William F. Biggs, United States of America ... , 761 F.2d 184 ( 1985 )

United States v. Larry Wilson Dickey , 102 F.3d 157 ( 1996 )

United States v. Lankford , 196 F.3d 563 ( 1999 )

United States v. Duane Francis Snelling , 862 F.2d 150 ( 1988 )

United States v. Jaime Castillo Brad Eugene Branch Renos ... , 179 F.3d 321 ( 1999 )

United States v. Nelson Devarona , 872 F.2d 114 ( 1989 )

Old Chief v. United States , 117 S. Ct. 644 ( 1997 )

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