United States v. Senffner, Kenneth ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3764
United States of America,
Plaintiff-Appellee,
v.
Kenneth M. Senffner,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 490--George W. Lindberg, Judge.
Argued March 27, 2001--Decided February 6, 2002
Before Posner, Manion, and Williams,
Circuit Judges.
Williams, Circuit Judge. Kenneth Senffner
was convicted of contempt of court,
obstruction of justice, and obstruction
of a proceeding pending before the SEC,
based on his actions in an investment
fraud scheme. He appeals, challenging the
sufficiency of the evidence to support
his conviction for obstruction of an SEC
proceeding, and the district court’s
admission of his prior civil contempt and
other conduct not charged in the
indictment in evidence. We believe the
evidence was sufficient to sustain
conviction and that the district court
properly admitted the challenged evidence
at trial. Therefore, we affirm.
I. BACKGROUND
The saga of Senffner’s wheeling and
dealing began in 1991. That year John
Lauer was hired by the CHA as its
employee benefits manager. One of his
early tasks was to find insurance for CHA
tenants who worked tenant patrol. Capital
American, represented by Senffner,
answered the call. In making an offer to
provide insurance, Senffner sweetened the
deal by agreeing to cut Lauer in on his
sales commission. But, Lauer did not tell
the CHA about the commission agreement
when he presented Senffner’s offer.
The next year, Lauer was assigned the
task of reviewing the CHA’s employee
health benefits insurance rolls and
updating the CHA’s record-keeping. Lauer
talked with Senffner about the
assignment, and Senffner had just the
fix. He had a company, called Midwest
Medcost, that performed those services,
and with another illegal kickback, Lauer
sealed the deal with the CHA (again not
telling the CHA of the kickback). The CHA
then paid $2.4 million to Midwest Medcost
for past-due premiums.
Then, the real games began. Lauer knew
the CHA was perpetually late in making
its insurance payments and that the
insurers accepted this practice. With
this window (one they were supposed to
close), Senffner and Lauer used the money
to make short-term investments for
themselves. They invested $420,000 in
four high-interest CDs with Canadian
Trade Bank, a company for whom Senffner
was also a sales agent. Both Senffner and
Lauer received sales commissions.
Unfortunately, the risk, but not the
returns, materialized. To make matters
worse, Michael Randy, an officer of the
company, was arrested and ultimately
convicted of racketeering and mail fraud.
At the time of his arrest, Randy had
Senffner collect the CDs from Lauer and
give them to his (Randy’s) wife, who
promptly reissued them in Lauer’s name.
Following this exchange, Senffner was
questioned by a Postal Inspector
conducting a criminal investigation into
Randy and his company. Senffner and Lauer
had earlier agreed to conceal their
illegal activities if ever questioned. So
Senffner lied. He told the inspector and
testified at Randy’s criminal trial in
federal court that he had only sold CDs
to Lauer and Alan Hilberg. For the
$420,000 of CHA money they invested,
Senffner and Lauer got back $22,000. And,
to get that amount they submitted false
CD certificates in Randy’s bankruptcy
proceeding.
Later that year, the CHA wanted to
create an early retirement program that
included a supplemental incentive check
and supplemental medical coverage, but
the CHA’s pension fund provider could not
make the extra allowances. Senffner and
Lauer had a solution. They created CCI, a
limited partnership with no
capitalization. The CHA deposited $4.7
million into two accounts, one for
supplemental incentives and the other for
supplemental medical insurance. Senffner
and Lauer controlled the accounts, from
which they took $3 million (and later
another $200,000) and invested in Legacy
Trust. Just like the Canadian Trade Bank
debacle, Senffner and Lauer served as
sales agents for Legacy Trust and
collected commissions on the sale. But
Legacy Trust was not reputable either
because it was investing in illegal bank
instruments. This investment tanked, and
Senffner and Lauer lost everything.
In March 1993, Senffner and Lauer made
another improper investment in Konex,
using $10 million of CHA pension fund
money. They had access to this money
because Lauer had been promoted to CHA
director of benefits and risk management.
Initially, they received no commission,
but Senffner and Lauer arranged to
receive a commission on any trades Konex
made with the money. A short time later,
they added another $2.5 million to the
investment, this time with CHA pension
money and CHA money from the CCI and
Medcost accounts. Predictably, they lost
it all. Konex traded in the same illegal
bank investments as Legacy Trust.
Finally, the SEC stepped in to stop
these investment schemes. And, on June
21, 1994, the SEC filed a lawsuit seeking
civil penalties and interest; a temporary
and permanent injunction restraining CCI
and Konex from any further securities
violations; and a freeze of assets. The
district court issued a temporary
restraining order ("TRO"), freezing CCI’s
assets.
Around the same time, the Tennessee
Department of Commerce sued Legacy Trust
for illegal securities transactions and
had the trust assets placed in
receivership for the benefit of the
victims. The largest victim was CCI, who
had lost $3.2 million. On July 5, 1994,
the Tennessee Receiver’s Office sent a
check to CCI for $373,714.91,
representing what remained of CCI’s loss.
Lauer turned the check over to the CHA,
but Senffner had the Tennessee Receiver
put a stop-payment order on the check and
issue a second check to him. Senffner
assigned this check to his attorney Glenn
Palmer to deposit into his attorney
escrow account.
These funds were subject to the TRO that
arose out of the SEC lawsuit against CCI.
After Lauer discussed the stop-payment
order with Senffner, Senffner told him
that he intended to make a quick
investment, before returning the money,
and he asked Lauer to stall. When the SEC
discovered Senffner’s transfer, they
demanded its return, which he eventually
returned, pursuant to a civil contempt
order issued by the district court.
Later, Senffner was charged with contempt
of court under 18 U.S.C. sec. 401(3),
obstruction of justice (in relation to
the SEC lawsuit) under 18 U.S.C. sec.
1503, and obstruction of a proceeding
pending before the SEC under 18 U.S.C.
sec. 1505. In Senffner’s criminal
prosecution, the government offered
evidence of Senffner’s conduct, and the
jury convicted him on all three counts.
Senffner appeals.
II. ANALYSIS
A. Sufficiency of the Evidence
We begin our analysis with the statute
involved. When an individual "corruptly .
. . influences, obstructs, or impedes or
endeavors to influence, obstruct, or
impede the due and proper administration
of the law under which any pending
proceeding is being had before any
department or agency of the United
States," there is a violation of 18
U.S.C. sec. 1505. Senffner asserts that
the evidence was insufficient to sustain
his conviction under this statute,
arguing that the evidence does not show
that he in fact obstructed an SEC
proceeding or that he "endeavored" to
obstruct an SEC proceeding. We reject
both arguments.
In rejecting these arguments, we are
mindful of several standards that apply
to our analysis. We must consider the
evidence in the light most favorable to
the government, drawing all reasonable,
justifiable inferences in its favor. In
connection with that obligation, we will
not reweigh the evidence, nor second-
guess the jury’s credibility
determinations. Only when the record
contains no evidence from which the jury
could find guilt beyond a reasonable
doubt, will we overturn the verdict.
United States v. Masten, 170 F.3d 790,
794 (7th Cir. 1999); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979)
(stating the question as whether "any
rational trier of fact could have found
the essential elements of the crime
beyond a reasonable doubt" (emphasis in
original)).
1. SEC proceeding.
Senffner argues that the evidence was
insufficient to convict him of
obstruction of a proceeding pending
before the SEC, because the SEC had no
independent authority to freeze or
distribute assets, or to impose civil
penalties, but needed to obtain an order
from the federal district court. He
argues that he only obstructed the
district court, not the SEC. His argument
is without merit; he obstructed both.
The SEC, as a government agency, can
only act through individuals or other
instrumentalities using the enforcement
mechanisms it has available. These
mechanisms may be internal or involve
other entities, including the federal
courts. Therefore, whenever an entity
acting for or at the direct request of an
agency has been obstructed, the agency
itself has also been obstructed. See,
e.g., United States v. Aguilar, 515 U.S.
593, 600 (1995) (recognizing that
although no obstruction occurs when an
individual lies to FBI agents who might
or might not testify before a grand jury,
it may occur if the "agents acted as an
arm of the grand jury, or indeed that the
grand jury had even summoned the
testimony of these particular agents").
The fact that an agency cannot perform a
particular function itself or through its
own labor is of no moment; rather the
question is whether the agency proceeding
affirmatively, by its specific actions,
seeks to have the particular function
performed as part of the proceeding.
The purpose of the SEC’s initial
proceeding,/1 investigating the
securities law violations of Lauer,
Senffner, and CCI, was not solely to
investigate those violations for the sake
of exposing them, but also to identify
and recover CHA funds involved in the
violations to remedy them. More to the
point, that proceeding did not end by
virtue of the filing of the lawsuit. To
the contrary, the SEC prosecution of the
lawsuit was a natural extension of that
proceeding, and its efforts to recover
and return the funds were necessary to
achieve its goal. By obstructing the
recovery of CHA funds, Senffner
obstructed the district court, and, as a
consequence, the SEC’s initial
investigation and enforcement of
securities law violations (an SEC
proceeding), which sought the return of
the funds.
There exists, however, a more "direct"
obstruction in this case. Assuming that
the SEC’s tracing of the funds was
separate from its initial proceeding,
that investigation constitutes a
proceeding, even though the SEC lawsuit
was already in progress and the SEC used
the district court’s process rather than
its own. An SEC investigation is a
"proceeding"--a term that is defined
rather broadly--for the purpose of
section 1505. See, e.g., United States v.
Kelley, 36 F.3d 1118, 1127 (D.C. Cir.
1994); United States v. Schwartz, 924
F.2d 410, 423 (2d Cir. 1991). And,
sufficient to distinguish an
investigative proceeding (from a mere
police investigation) is the authority to
issue subpoenas and administer oaths. See
Kelley, 36 F.3d at 1127. However, that
does not mean that every aspect of the
investigation must proceed under that
authority.
We are not alone in reaching these
conclusions. The Ninth Circuit has also
rejected the very same argument in
similar circumstances. See United States
v. Hopper, 177 F.3d 824, 830-31 (9th Cir.
1999). In Hopper, the IRS sought to
collect unpaid taxes from members of the
Juris Christian Assembly (a front for a
tax evasion scheme), by placing an IRS
tax levy on the salary of one of the
members and a lien on the property of
another. Id. at 828. They also obtained a
judgment for the debt and a lien from a
federal district court. Id. The members
attempted to frustrate the enforcement of
the levy and judgment lien by submitting
false checks. Id. at 828-29. Two of the
defendants were prosecuted for
obstruction of an agency proceeding under
section 1505 for their submission of a
false check to the U.S. Marshall Service
in satisfaction of the judgment lien. Id.
at 830. They claimed that they had only
obstructed the judgment of the federal
district court, not an IRS proceeding.
Id.
In rejecting their argument, the Hopper
court concluded that the "enforcement of
tax liens by the IRS is an IRS
proceeding. The fact that the IRS was
required to enforce its lien in federal
court does not change the IRS’s
involvement. It was an IRS tax lien,
prosecuted by an Assistant United States
Attorney representing the IRS, and any
money collected would have been paid to
the IRS." Id. at 831 (emphasis added).
Additionally, and more broadly, Hopper
concluded that "collection of delinquent
taxes is an IRS proceeding." Id.
(emphasis added). Therefore, obstruction
of either proceeding, i.e., the IRS’s
efforts to enforce a lien in federal
district court or collect delinquent
taxes, violated section 1505,
notwithstanding the intermediary involve
ment of the federal district court. Id.
Although Senffner tries to distinguish
Hopper by pointing out that in that case
the IRS was owed the particular debt, and
the district court did not take control
of the property involved there, neither
distinction is persuasive. The SEC’s
interest, that the securities laws are
properly enforced, is a concrete interest
and it does not matter that the SEC was
not itself actually harmed. The injury to
its interest, the securities law
violations in this case, could only be
remedied if the funds were returned to
their proper owner in accordance with the
law. Not until that occurred was the
agency proceeding completed. Whether the
district court had control of the
property or not is simply a rerun of
Senffner’s first argument, which we have
already rejected.
2. Endeavoring to obstruct.
Senffner also argues that the evidence
was insufficient to convict him of
obstruction of a proceeding pending
before the SEC under section 1505,
because the government failed to prove
that he "endeavored" to obstruct an SEC
proceeding. He argues that there was no
evidence that he believed his transfer
would frustrate an SEC proceeding, or
that after the filing of the lawsuit, the
SEC’s initial proceeding continued. The
jury rejected his characterization of the
facts, as we do.
In order to prove that Senffner
"endeavored" to obstruct an SEC
proceeding under section 1505, the
government need only show that Senffner’s
actions had the "natural and probable"
effect of interfering with that
proceeding. Cf. Aguilar, 515 U.S. at 599
(requiring the same for the similar
obstruction provision in 18 U.S.C. sec.
1503). Such a showing is sufficient to
satisfy the requisite mental state
required in section 1505. Cf. id. We
believe the government has met that
burden.
To start, Senffner knew that the SEC was
investigating and accounting for all of
the funds in the lawsuit. At a minimum,
his covert activity concealing the
Tennessee Receiver check and his
solicitation of Lauer to stall serves as
evidence of that fact. The jury could
have reasonably determined that his
actions, in concealing the Tennessee
Receiver check, also had the natural and
probable effect of obstructing that
investigation proceeding.
In addition, Senffner knew that the SEC
initiated a proceeding before filing the
lawsuit, and that the SEC brought the
lawsuit and was prosecuting it as a
result of that proceeding. He also knew
that the purpose of those efforts was to
recover the CHA funds and that purpose
could not be achieved until all the funds
had been returned. The jury could have
reasonably determined that Senffner knew
that the initial proceeding was not
complete and continued until the funds
were recovered. From that, the jury could
have also reasonably determined that by
concealing the Tennessee Receiver check,
Senffner knew that he was obstructing
that proceeding.
For these reasons, we conclude that
Senffner has failed to show that the
evidence was insufficient to support his
conviction.
B. Evidentiary Rulings
Senffner makes two evidentiary
challenges. First, he argues that the
district court erred by admitting his
prior civil contempt at his criminal
contempt trial. Second, he asserts that
the district court erred by admitting
"voluminous" bad acts not charged in the
indictment, which should have been
excluded under Federal Rule of Evidence
404(b). We reject each argument.
When presented with claims of error in
the district court’s admission of
evidence, we review for abuse of
discretion. United States v. Johnson, 127
F.3d 625, 630 (7th Cir. 1997). We give
the district court great deference in
such matters, and we will not substitute
our judgment in place of the judgment of
the district court. United States v. Van
Dreel, 155 F.3d 902, 905-06 (7th Cir.
1998); United States v. Bradley, 145 F.3d
889, 892 (7th Cir. 1998). We only
consider whether any reasonable person
could agree with the district court.
1. Opening the door.
Senffner argues that the district court
erred by admitting his prior civil
contempt at his criminal contempt trial,
and that he was unfairly prejudiced by
its admission, relying on United States
v. Boyd, 208 F.3d 638, 641 (7th Cir.
2000) (recognizing potential reversible
error by disclosing defendant’s prior
jury conviction) vacated on other grounds
by Boyd v. United States, 531 U.S. 1135
(2001) and United States v. Thomas, 155
F.3d 833, 836 (7th Cir. 1998) (stating
that it was an abuse of discretion to
admit testimony that administrative
proceeding had previously adjudicated a
fact constituting an element of the
offense)./2 But the district court
ruled, and we agree, that Senffner opened
the door to the testimony of his prior
civil contempt./3
In the first count, contempt of court,
the indictment charged that Senffner
"willfully disobeyed and resisted [the
temporary restraining order]" by
transferring the Tennessee Receiver check
and "failing to reverse or disclose this
transfer." During cross-examination of a
government witness, Senffner asked
whether the funds had been returned to
the SEC by late August. The witness
responded that the funds were returned
"[w]hatever day that Mr. Senffner had
been ordered by the Court to submit was
the day that the money came back." On re-
direct the government briefly asked
questions related to this topic. In
response, the witness stated that
Senffner had been held in contempt of
court and ordered to return the funds by
that date.
Ordinarily, an inquiry into the date of
an incident’s occurrence would not
warrant further inquiry by the government
into the reason for that incident’s
occurrence--the proverbial "door" is not
that wide open. Cf. Thomas, 155 F.3d at
836 (holding that misleading testimony
regarding the purpose of a proceeding did
not warrant inquiry into the result of
the proceeding). But that is not what
occurred here. Senffner questioned the
witness about whether he had failed to
reverse the transfer, then asked him
again to respond that the funds had been
returned (and ergo the transfer
reversed). That was misleading. Senffner
reversed the transaction, but only
because he was under a court order, a
fact the government then had the
opportunity to reveal. Senffner opened
the door to this testimony, and the
district court did not abuse its
discretion by admitting the evidence. See
United States v. Touloumis, 771 F.2d 235,
241 (7th Cir. 1985) ("We have reasoned
that a party cannot be permitted on the
one hand to introduce evidence that
appears favorable to his argument and
then complain, after the circumstances
are fully developed, because the evidence
becomes detrimental to his cause.").
2. Other bad acts under Rule 404(b), and
the inextricably intertwined doctrine.
Senffner argues that the district court
improperly admitted all the other bad
acts evidence that preceded his unlawful
concealment of the Tennessee Receiver
check under Rule 404(b). He asserts that
this conduct was not part of the charged
conduct, but was "other crimes, wrongs,
or acts" within the meaning of the rule.
He also implicitly urges this court to
adopt a more restrictive interpretation
of the inextricably intertwined doctrine,
suggesting that to include his prior bad
acts in that doctrine would be an
unnecessary and unwarranted erosion of
the protection offered by Rule 404(b).
Without citing the cases, Senffner
repeats other courts’ criticisms of our
standard. See, e.g., United States v.
Bowie, 232 F.3d 923, 928 (D.C. Cir. 2000)
("The ’complete the story’ definition of
’inextricably intertwined’ threatens to
override Rule 404(b). A defendant’s bad
act may be only tangentially related to
the charged crime, but it nevertheless
could ’complete the story’ or
’incidentally involve’ the charged
offense or ’explain the circumstances.’
If the prosecution’s evidence did not
’explain’ or ’incidentally involve’ the
charged crime, it is difficult to see how
it could pass the minimal requirement for
admissibility that evidence be
relevant."). We reject his invitation to
narrow that doctrine. All the evidence
admitted in Senffner’s trial (except the
civil contempt evidence) fits within the
inextricably intertwined doctrine, as we
have defined it. Rule 404(b) does not
apply.
Rule 404(b) provides that "[e]vidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a
person in order to show action in
conformity therewith." Fed. R. Evid.
404(b). We have stated, on more than one
occasion, under the inextricably
intertwined doctrine, that acts
"concerning the chronological unfolding
of events that led to an indictment, or
other circumstances surrounding the
crime, is not evidence of ’other acts’
within the meaning of Fed. R. Evid.
404(b)." United States v. Ramirez, 45
F.3d 1096, 1102 (7th Cir. 1995) (citing
cases).
And, so long as those acts meet the
requirements of Rule 403,/4 they may be
admitted in evidence at trial. United
States v. Hargrove, 929 F.2d 316, 320
(7th Cir. 1991). Acts satisfy the
inextricably intertwined doctrine if they
complete the story of the crime on trial;
their absence would create a
chronological or conceptual void in the
story of the crime; or they are so
blended or connected that they
incidentally involve, explain the
circumstances surrounding, or tend to
prove any element of, the charged crime.
See United States v. Hughes, 213 F.3d
323, 329 (7th Cir. 2000), vacated on
other grounds, Hughes v. United States,
531 U.S. 975 (2000); United States v.
Gibson, 170 F.3d 673, 681 (7th Cir.
1999).
We adhere to this precedent, and are
unpersuaded by Senffner, or other courts
that share his view. Rule 404(b) is
designed to address a particular
evidentiary problem, guarding against the
presentation of prior acts solely to
prove bad character, because a long
history of experience has consistently
shown that this type of evidence is of
negligible value, inflicting more unfair
prejudice than revealing helpful truths.
See Huddleston v. United States, 485 U.S.
681, 687-89 (1988); Michelson v. United
States, 335 U.S. 469, 475-76 (1948).
Evidence of acts that are joined with the
crime itself, however, occupy a different
stature by nature. That these acts share
a relationship with and connection to the
crime (even in a broad sense)
significantly restricts the ability of
the government to offer bad acts by the
defendant, which is consistent with the
historical and legislative purpose of
Rule 404(b). See Fed. R. Evid. 404
advisory committee’s note. It also
sufficiently removes those acts from the
language of the per se proscription in
Rule 404(b), which only prohibits "other"
bad acts. See United States v. Roberts,
933 F.2d 517, 520 (7th Cir. 1991)
(quoting United States v. Towne, 870 F.2d
880, 886 (2d Cir. 1989)). That evidence
is still subject to the
probative/prejudicial balancing
requirements of Rule 403. Indeed, if Rule
404(b) is doing any work at all, it is to
codify centuries of experience applying
Rule-403-type probative/prejudicial
balancing in the specific context of
other bad acts./5 See generally
Jennifer Y. Schuster, Uncharged
Misconduct Under Rule 404(b): The
Admissibility of Inextricably Intertwined
Evidence, 42 U. Miami L. Rev. 947, 947-61
(1988).
Therefore, we do not believe that we
must more narrowly tailor the
inextricably intertwined doctrine to save
Rule 404(b) or better serve its purpose.
The doctrine itself is already a narrow
one, and any perceived over-inclusiveness
in the doctrine as we define it is
inconsequential, because Rule 403 (like
Rule 404(b)) protects against the
unnecessarily prejudicial presentation of
barely probative evidence. We rely on the
more flexible balancing of Rule 403 than
the per se proscription of Rule 404(b)
for related conduct evidence on the
margin. Our definition of the
inextricably intertwined doctrine
reflects that preference. We agree,
however, that courts should remain on
guard to preserve the per se force of
Rule 404(b), but not with such vigor that
it needlessly restricts the fair and just
presentation of evidence at trial.
With this discussion in mind, we turn to
Senffner’s objections to the following
evidence:
(1) The approximately $15 million that
Senffner and Lauer illegally appropriated
(stole) from the CHA;/6
(2) The illegal commissions (bribes)
between Senffner and Lauer on CHA
contracts;
(3) The false statements made by Senffner
to the Postal Inspector investigating
Randy and Canadian Trade Bank;
(4) The perjury by Senffner at Randy’s
trial; and
(5) The false documents and false claims
submitted by Senffner to the bankruptcy
court.
His first two objections--where and how
Senffner obtained the funds that were
subject to the district court’s order--
represent the beginning of this criminal
venture. The evidence of the relationship
between Senffner and Lauer, and their use
of the CHA’s funds, shows how this
criminal enterprise began and developed
throughout the life of the investment
fraud scheme. We have often upheld the
admission of such evidence. See United
States v. Ward, 211 F.3d 356, 362 (7th
Cir. 2000); United States v. Zarnes, 33
F.3d 1454, 1469 (7th Cir. 1994); United
States v. Diaz, 994 F.2d 393, 395 (7th
Cir. 1993).
Each of the remaining three other bad
acts was part of the cover-up to conceal
Senffner’s failed and illegal
investments. That Senffner made false
statements to a federal agent, perjured
himself in federal court, and submitted
false documents and claims to a
bankruptcy court, are part of the
circumstances in which Senffner
misappropriated, illegally invested,
lost, fraudulently attempted to recover
and reinvest, CHA assets. This conduct
ultimately culminated in his concealment
of CHA assets under court order. His acts
were a prelude to the particular crime
for which he was charged and were a
pattern of conduct in a prolonged (but
singular) investment fraud scheme./7 See
United States v. Barnes, 49 F.3d 1144,
1149 (6th Cir. 1995) ("Rule 404(b) is not
implicated when the other crimes or
wrongs evidence is part of a continuing
pattern of illegal activity.").
III. CONCLUSION
For the foregoing reasons, the judgment
of the district court is Affirmed.
FOOTNOTES
/1 Senffner does not dispute that the initial SEC
investigation was a proceeding.
/2 Federal Rule of Evidence 403, which provides for
the exclusion of evidence when its probative
value is substantially outweighed by its prejudi-
cial effect, is the proper rule under which such
claims should be analyzed.
/3 The government argues that Senffner waived this
argument by rejecting a potential curative in-
struction. However, we need not resolve the
waiver question in light of our decision that
Senffner opened the door to this evidence.
/4 It provides: [a]lthough relevant, evidence may be
excluded if its probative value is substantially
outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of
time, or needless presentation of cumulative
evidence. Fed. R. Evid. 403.
/5 In this regard, Rules 404(b) and 403 are analo-
gous to the judicial application of per se and
rule of reason analyses under Section 1 of the
Sherman Act. See generally Arizona v. Maricopa
County Med. Soc., 457 U.S. 332, 344 (1982) ("Once
experience with a particular kind of restraint
enables the Court to predict with confidence that
the rule of reason will condemn it, it has
applied a conclusive presumption that the re-
straint is unreasonable.").
/6 Senffner argues that this money was not misappro-
priated or stolen; however, that determination
does not affect our analysis. In addition, over-
whelming evidence demonstrates that the money was
misappropriated.
/7 We do not address whether the evidence was prop-
erly admitted under Rule 403, because Senffner
has not raised that issue on this appeal. Howev-
er, we note that Senffner would have great diffi-
culty showing that any error was not harmless in
light of the overwhelming evidence of his guilt.