United States v. Jack Kachkar

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12685
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK KACHKAR,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cr-20595-DPG-1
____________________
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2 Opinion of the Court 19-12685
Before BRANCH, GRANT, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
Jack Kachkar, the former CEO of a pharmaceutical com-
pany, was convicted and sentenced for eight counts of wire fraud.
These convictions were based on a scheme to obtain millions of
dollars in loan funds by providing fake proof of collateral to a bank.
Kachkar now appeals his conviction, claiming reversible error in
the jury instructions and the district court’s evidentiary rulings. He
also argues that, at sentencing, the district court erroneously ap-
plied the 18 U.S.C. § 3553(a) factors and two enhancements under
the U.S. Sentencing Guidelines. Finally, he argues that the district
court’s restitution award violated the Sixth Amendment and was
not supported by sufficient evidence. All these contentions fail, so
we affirm.
I. BACKGROUND
Jack Kachkar was the chairman and CEO of Inyx, Inc., a mul-
tinational pharmaceutical company. Under Kachkar’s leadership,
Inyx entered into written loan agreements with Westernbank, a
Puerto Rican bank, in 2005. Mike Vazquez, the head of Western-
bank’s asset-based lending division, led the negotiations with
Kachkar. Under the loan agreements, Inyx assigned its accounts re-
ceivable, in the form of customer invoices, as collateral.
In the regular course of business, Inyx would generate an
invoice after a customer signed a purchase order called a quotation.
But Kachkar instructed employees to generate invoices from
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19-12685 Opinion of the Court 3
unsigned, falsified quotations as a way to inflate the collateral for
the bank’s loan. Inyx would then send these invoices to Western-
bank, but not to its customers. Westernbank advanced millions of
dollars in loan funds to Inyx based on this fake collateral.
Kachkar later transferred around $30 million from those
funds to his personal bank accounts. He used this money partly to
pay for luxury clothing, jewelry, high-end hotels, flights, and meals.
He also paid an attorney, a home-building company, an aviation
company, and a property tax collector.
After Westernbank became concerned about Inyx’s ability
to repay the loan, Kachkar assured Vazquez that the collateral was
valuable and that he was seeking third-party financing to help pay
the loan back. Kachkar argues that, to keep Inyx afloat, Vazquez
informally agreed to continue funding Inyx in the meantime with-
out regard for the collateral required by the loan agreements.
Eventually Inyx’s vice president of finance blew the whistle
on Kachkar’s scheme. After he noticed an $80 million discrepancy
between the company’s internal records and the accounts receiva-
ble reports sent to Westernbank, he reported the discrepancy to
Westernbank’s executives. Alerted to the fraud, Westernbank
called in the loan, was unable to collect on the property pledged as
collateral, and lost over $140 million. Those losses caused the bank
to report negative earnings in 2007, which made it harder to attract
new investments and capital. Facing these and other troubles, the
bank eventually closed in 2010.
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4 Opinion of the Court 19-12685
As part of a fraud investigation, the U.S. Department of Jus-
tice requested a broad array of Inyx documents from Canada under
a Mutual Legal Assistance Treaty. With the permission of a Cana-
dian court and under the supervision of Canadian police, a group
of Federal Deposit Insurance Corporation agents conducted a high-
level review and claimed various boxes containing Inyx quotation
documents. Canada sent those boxes to the United States, where
officials catalogued and digitized the documents for efficient re-
view.
Kachkar was indicted on nine counts of wire fraud under 18
U.S.C. § 1343. Before trial, Kachkar moved to suppress the Inyx
documents obtained from Canada, arguing that the searches vio-
lated the Fourth Amendment. Adopting a magistrate judge’s rec-
ommendation, the district court admitted the documents over
Kachkar’s objections.
At trial, the jury heard testimony from various employees of
Westernbank and Inyx. One key government witness was Colin
Hunter, who testified about Kachkar’s role in creating the false in-
voices. To attack Hunter’s credibility, the defense offered emails
between Westernbank and its attorney concerning a settlement
agreement encouraging Hunter to cooperate. But the district court
excluded these emails as hearsay. Over Kachkar’s arguments, it
found that they did not fall under the business records exception in
Federal Rule of Evidence 803(6) because litigation is not a regularly
conducted activity for a bank.
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19-12685 Opinion of the Court 5
The government also questioned representatives of Inyx’s
customers. Each of them examined the invoices supporting the
wire fraud charges and stated that their companies had never re-
ceived them or incurred the underlying obligations.
Later, Kachkar proposed a jury instruction concerning the
meaning of a “scheme to defraud” under the wire fraud statute.
The instruction was based on United States v. Takhalov, 827 F.3d
1307, 1311 (11th Cir. 2016), and would have added several para-
graphs to the pattern wire fraud instructions:
A “scheme to defraud” refers only to those schemes
in which the defendant lies about the nature of the
bargain itself. If the defendant has not lied about the
nature of the bargain itself, he has not “schemed to
defraud,” and cannot be convicted of wire fraud on
the basis of that lie alone.
A scheme that does no more than cause their victims
to enter into transactions that they would otherwise
avoid is not a “scheme to defraud” that violates the
wire fraud statute.
. . . If the Defendant deceived someone to enter into
a transaction but did not intend to harm the person
he deceived, the Defendant has not schemed to de-
fraud. This is so even if the transaction would not
have occurred but for the deception. If there is no in-
tent to harm, the scheme was to deceive, which is not
wire fraud. Wire fraud requires an intent to defraud,
which requires intent to harm.
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A defendant may intend to deceive but not intend to
defraud. If the falsity of the defendant’s representa-
tions was not shown to be capable of affecting the vic-
tim’s understanding of the bargain nor of influencing
his assessment of the value of the bargain to him,
there is no injury from the deception.
Misrepresentations amounting only to a deceit are in-
sufficient to violate the wire fraud statute. Deceit
must be coupled with a contemplated harm to the
victim that affects the very nature of the bargain itself.
Such harm is apparent where there exists a discrep-
ancy between benefits reasonably anticipated because
of the misleading representations and the actual ben-
efits which the defendant delivered or intended to de-
liver.
You cannot convict a defendant of wire fraud based
on misrepresentations that amount only to deceit.
Even if a defendant lies and even if the alleged victim
spent money because of that lie, you must acquit if
you [sic] the alleged victim received exactly what they
paid for.
Failure to disclose certain facts, in and of itself, is not
sufficient to convict the Defendant of any offense.
The district court held a charge conference with the parties
to discuss the jury instructions. Over the government’s objection,
the court agreed with Kachkar that the pattern instructions should
be modified to incorporate Takhalov. But the court found
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19-12685 Opinion of the Court 7
Kachkar’s proposed instruction confusing. So it proposed a simpli-
fied instruction stating, “If the defendant deceived someone to en-
ter into a transaction but did not intend to cause a personal gain for
himself or a financial loss to the bank, the defendant has not
schemed to defraud.” Kachkar did not object to the court’s simpli-
fied language, though he later objected to the omission of his own
proposed instruction.
The district court ultimately gave its simplified version of
Kachkar’s proposed wire fraud instruction to the jury. It also in-
structed the jury that Westernbank’s knowledge of the fraud and
its motivation to profit from the loans were no defense. The jury
convicted Kachkar on each charged count, but the district court
granted Kachkar’s motion for acquittal on one count.
During sentencing, the district court declined Kachkar’s re-
quest that it consider the bank’s negligence when analyzing the
“nature and circumstances of the offense” under 18 U.S.C. §
3553(a)(1). Kachkar also offered a table showing sentences imposed
on similar offenders, which the district court did not explicitly
adopt in its consideration of Section 3553(a)(6).
When calculating the guidelines range, the district court ap-
plied a four-level enhancement under United States Sentencing
Guidelines Manual § 2B1.1(b)(17)(B)(i) because Kachkar “substan-
tially jeopardized the safety and soundness of a financial institu-
tion.” It also applied a two-level enhancement under U.S.S.G. §
2B1.1(b)(2)(A)(iii) because the offense “resulted in substantial finan-
cial hardship” to the bank. But out of double-counting concerns,
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8 Opinion of the Court 19-12685
the court ultimately included only a four-level enhancement in its
calculations. It calculated the guidelines range at 324–405 months
and imposed a sentence of 360 months.
The district court also ordered Kachkar to pay restitution to
the FDIC as receiver for Westernbank under the Mandatory Victim
Restitution Act, 18 U.S.C. § 3663A. Relying on victim loss calcula-
tions prepared by the FDIC, the court awarded an amount of
$103,490,005. Kachkar timely appealed, seeking vacatur of his con-
viction, or alternatively, vacatur of his sentence with remand for
re-sentencing.
II. DISCUSSION
Kachkar attacks his conviction on three grounds. First, he
argues that the district court incorrectly instructed the jury on wire
fraud. Second, he argues that the searches of Inyx quotation docu-
ments seized in Canada violated the Fourth Amendment. Third, he
contends that the district court abused its discretion by excluding
emails concerning a settlement agreement with Colin Hunter.
He raises three more grounds for vacating his sentence.
First, he argues that the district court wrongly excluded evidence
from its analysis of the Section 3553(a) factors. Second, he argues
that it erroneously applied sentencing enhancements. Third, he ar-
gues that the district court’s restitution award violated the Sixth
Amendment and was based on insufficient evidence. We address
each of these issues in turn.
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A. Jury Instructions
At trial, Kachkar proposed a multi-paragraph jury instruc-
tion for wire fraud stating in part, “If the Defendant deceived some-
one to enter into a transaction but did not intend to harm the per-
son he deceived, the Defendant has not schemed to defraud.” Find-
ing Kachkar’s instruction confusing, the district court instead in-
structed the jury that Kachkar did not scheme to defraud if he “did
not intend to cause a personal gain for himself or a financial loss to
the bank.” It also offered two supplemental instructions. One
stated that the bank’s knowledge of the fraud was no defense. The
other stated that the bank’s motive to profit from the loan transac-
tions was no defense. Kachkar asserts error in the rejection of his
proposed instruction, as well as in the court’s three instructions.
“We review for an abuse of discretion a district court’s refusal to
give a requested jury instruction.” United States v. Takhalov, 827
F.3d 1307, 1311 (11th Cir. 2016). We review the legal correctness
of a jury instruction de novo. Id.
1. Kachkar’s Proposed Instruction
We will start with the jury instruction that Kachkar wanted
and that the district court denied or, more accurately, modified.
We review this question for an abuse of discretion. See United
States v. Waters, 937 F.3d 1344, 1353 (11th Cir. 2019). We will re-
verse a district court’s rejection of a proposed instruction that “(1)
was correct, (2) was not substantially covered by the charge actu-
ally given, and (3) dealt with some point in the trial so important
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that failure to give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v. Eck-
hardt, 466 F.3d 938, 947–48 (11th Cir. 2006). Even assuming
Kachkar’s proposed instruction satisfied the first two elements of
this test and assuming Kachkar preserved an objection to the denial
of his proposed instructions, we cannot say that the district court’s
refusal to give it seriously impaired his ability to conduct a defense.
Kachkar’s proposed instruction was based on this Court’s
decision in United States v. Takhalov, 827 F.3d at 1312–14. In Ta-
khalov, the government prosecuted bar owners who hired women
known as B-girls to pose as tourists so that men would want to
come to their establishments and buy drinks. Id. at 1310. The gov-
ernment alleged that this scheme, in and of itself, was fraudulent,
even if the men received the drinks they ordered. Id. at 1311. The
defendants disagreed and proposed a jury instruction stating that
the “failure to disclose the financial arrangement between the B-
girls and the Bar, in and of itself, is not sufficient to convict a de-
fendant of wire fraud.” Id. at 1314 (cleaned up). We agreed with
the defendants and our holding was simple: this instruction was a
correct statement of the law. Id. at 1316. We also stated that one
can “scheme to defraud” under Section 1343 only if he “intend[s]
to harm the victim.” 827 F.3d at 1313. And we reasoned that a de-
fendant displays such intent if he “lies about the nature of the bar-
gain itself,” usually by misrepresenting “the price” or “characteris-
tics of the good,” so that the victim does not receive “what he bar-
gained for.” Id. at 1313–14. In that case, nothing about the
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19-12685 Opinion of the Court 11
undisclosed financial arrangement between the bars and the B-girls
went to the nature of the bargain between the men and bars—cash
for drinks—so we held that there was not necessarily an intent to
harm. Id. at 1314–15.
Incorporating multiple paragraphs of general principles
from the Takhalov opinion, Kachkar’s proposed instruction stated
that the difference between mere deceit and a scheme to defraud is
“intent to harm.” It further stated that a defendant displays such
intent if he “lies about the nature of the bargain itself.” The district
court agreed with Kachkar to incorporate Takhalov into the jury
instructions, but it did not use the multi-paragraph proposal that
Kachkar requested because it found it “confusing.”
We cannot say that the district court’s decision not to use
Kachkar’s proposed language substantially impaired Kachkar’s trial
defense. Unlike in Takhalov, Kachkar’s defense was not that he had
tricked the bank but, nonetheless, provided them all that they had
bargained for. Instead, he argued that he did not harm the bank by
falsifying collateral because the bank’s management did not care
about, and then waived, its collateral requirements. This defense
does not primarily concern the difference between fraud and de-
ceit; it asserts that the collateral was not material to the bank’s de-
cision to issue the loans. The district court separately instructed the
jury on materiality as an element of wire fraud. So Kachkar’s de-
fense regarding the bank’s collateral requirements did not depend
on Takhalov at all.
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As another component of his defense, Kachkar argued that
he lacked intent to harm the bank because he sought out third-
party financing to repay the loan. But this defense does not impli-
cate Takhalov either. Under Takhalov, the term “harm” does not
necessarily refer to a long-term financial loss on the part of the vic-
tim. See 827 F.3d at 1313–14. Instead, a “harm” occurs when the
misrepresentation affects the victim’s understanding of the nature
or value of the bargain. Id.; Waters, 937 F.3d at 1353–54. If a de-
fendant intends to make such a misrepresentation, it does not mat-
ter whether he intends to make up for any loss later. It is therefore
irrelevant for purposes of Takhalov that Kachkar intended to se-
cure third-party repayment on the loan. Accordingly, we cannot
say the district court reversibly erred by modifying Kachkar’s pro-
posed instruction.
2. District Court’s Instructions
Now we turn to the jury instructions that the district court
gave instead. We will reverse because of a given jury instruction
only if it (1) was legally inaccurate or “improperly guided the jury”
in a way that violated due process, and (2) was not “harmless er-
ror.” United States v. Focia, 869 F.3d 1269, 1280 (11th Cir. 2017)
(quoting United States v. House, 684 F.3d 1173, 1196 (11th Cir.
2012); United States v. Prather, 205 F.3d 1265, 1270 (11th Cir.
2000)). “An error is harmless if the reviewing court is satisfied be-
yond a reasonable doubt that the error complained of did not con-
tribute to the verdict obtained.” Id. (quoting House, 684 F.3d at
1197).
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The district court found Kachkar’s instruction confusing, so
it replaced it with a Takhalov instruction of its own: “If the Defend-
ant deceived someone to enter into a transaction but did not intend
to cause a personal gain for himself or a financial loss to the bank,
the Defendant has not schemed to defraud.” Kachkar argues that
the disjunctive “or” would permit the jury to find him guilty if he
intended only a personal gain, even one that caused no loss to the
bank. He thus contends that the instruction (1) allowed his convic-
tion on an invalid basis, and (2) nullified his so-called Takhalov de-
fense.
Kachkar failed to object to the proposed language on the
specific grounds he raises on appeal, so we will reverse only if the
instruction amounted to plain error. We conclude that it did not.
The day after the district court sent the final draft of its jury
instructions to the parties, it asked them if they had any objections
to the wire fraud instruction. With respect to the portion of the
instruction at issue here, Kachkar’s attorney simply maintained
that the court should “instruct the jury as to the offense as we sub-
mitted prior.” We read this as a general objection to the court’s
refusal to use the proffered instruction, not as an objection to the
court’s use of disjunctive language. Kachkar’s attorney never ar-
gued to the district court—at the charge conference or after the
court instructed the jury—that it should not have used disjunctive
language. And “[w]hen a defendant objects to a jury instruction in
the district court, but on different grounds than the ones he raises
on appeal, we review the instruction for plain error.” United States
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14 Opinion of the Court 19-12685
v. Baston, 818 F.3d 651, 661 (11th Cir. 2016). For us to find plain
error, “there must be: (1) error, (2) that is plain, and (3) that has af-
fected the defendant’s substantial rights.” United States v. Hesser,
800 F.3d 1310, 1324 (11th Cir. 2015). An error affects the defend-
ant’s “substantial rights” when “there is a reasonable probability of
a different result absent the error.” Id. at 1325.
Here, we are satisfied beyond a reasonable doubt that the
district court’s use of the disjunctive “or” did not contribute to the
jury’s guilty verdicts. For this reason, we conclude both that any
error in the instruction did not affect Kachkar’s substantial rights,
and that it was harmless. See id.; Focia, 869 F.3d 1269, 1280.
Kachkar argues that by using the disjunctive “or,” the instruction
allowed the jury to convict him even if he did not intend to harm
the bank, as long as he intended some gain from the transaction.
But, unlike in Takhalov, there is no question that Kachkar’s mis-
representations went to the “nature of the bargain itself,” and
therefore harmed the bank if they misled the bank into entering
into the transaction. Takhalov, 827 F.3d at 1313. Specifically, the
value of Inyx’s accounts receivable was substantially lower than
what Kachkar represented to the bank. This $80 million discrep-
ancy in collateral is not comparable to the allegedly harmless de-
ception in Takhalov. The government also submitted extensive ev-
idence that the bank was harmed by issuing the loan. And, unlike
in Takhalov, Kachkar’s defense was that the bank’s management
did not care about the collateral requirements, and that he intended
to get help paying back the loan later. The district court gave
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19-12685 Opinion of the Court 15
instructions that allowed Kachkar to make those arguments. See
Waters, 937 F.3d at 1355. So the district court’s wire fraud instruc-
tion did not amount to plain error. The instruction therefore does
not constitute grounds for reversal.
As for the two supplemental instructions, the district court’s
language was legally correct. The first instruction said, “Whether
the financial institutions in this case knew or should have known
that submissions to the financial institutions were fraudulent, if at
all, is not a defense.” The second one stated, “Whether the financial
institutions were motivated by profit or did, in fact, profit from the
loans or other transactions involved in this case also is not a de-
fense.” Kachkar argues that these instructions undermined his de-
fense because the bank’s knowledge and profit motive bore on his
intent to defraud.
Both supplemental instructions accurately reflect the law for
the same reason: the fraud statute looks to only the defendant’s
state of mind. See 18 U.S.C. § 1343. We have, along with other cir-
cuits, shunned attempts to account for the victim’s subjective
knowledge or intent in fraud cases. See United States v. Svete, 556
F.3d 1157, 1165 (11th Cir. 2009) (“A perpetrator of fraud is no less
guilty of fraud because his victim is also guilty of negligence.”); see
also United States v. Lindsey, 850 F.3d 1009, 1014–15 (9th Cir.
2017); United States v. Colton, 231 F.3d 890, 903 (4th Cir. 2000);
United States v. Allen, 201 F.3d 163, 167 (2d Cir. 2000); United
States v. Coyle, 63 F.3d 1239, 1244 (3d Cir. 1995); United States v.
Kreimer, 609 F.2d 126, 132 (5th Cir. 1980).
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We do note that, unlike in those cases, Kachkar is not claim-
ing the bank’s negligence or profit motive are a defense. Rather, he
asserts that his perception of the bank’s knowledge and profit mo-
tive affected his subjective intent. But the district court’s supple-
mental instructions stated only that neither the bank’s knowledge
nor profit motive was itself “a defense.” Thus, the instructions did
not preclude the jury from considering either fact in relation to
Kachkar’s state of mind or the materiality of his lies.
B. Search of Canadian Documents
Kachkar further argues that the district court erred in deny-
ing his motion to suppress Inyx quotation documents seized in
Canada and searched without a warrant in the United States. He
argues that, under the “private search” doctrine, see United States
v. Odoni, 782 F.3d 1226, 1238 (11th Cir. 2015), the search in the
United States violated the Fourth Amendment by exceeding the
scope of the Canadian search.
Even assuming—without concluding—that the search vio-
lated the Fourth Amendment, the admission of the quotation doc-
uments was harmless error. A constitutional error is harmless
when, “beyond a reasonable doubt,” it did not contribute to the
verdict obtained. United States v. Leonard, 4 F.4th 1134, 1144 (11th
Cir. 2021) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).
The crux of the prosecution’s case was that Kachkar fraudu-
lently provided Westernbank fake invoices to obtain more loan
funds. The prosecution proved this point partly by relying on the
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19-12685 Opinion of the Court 17
underlying quotations that, testimony showed, led to the creation
of the invoices. The quotations were never provided to the bank.
And various Inyx employees testified from personal knowledge
about Kachkar’s and his subordinates’ roles in creating fake quota-
tions and invoices without notifying customers. Each customer
was shown the invoices, which supported the wire fraud charges,
and which were not challenged on Fourth Amendment grounds by
Kachkar. The customers stated that their companies had never re-
ceived them or incurred the underlying obligations. None of the
customer testimony hinged on the supposedly problematic quota-
tions, which had led to the creation of the invoices.
In sum, the Inyx employees provided a general view of the
fraudulent invoice scheme, and the customers’ representatives
proved that the specific invoices supporting the criminal charges
were fruits of that scheme. Combined, this testimony provides
overwhelming evidence of Kachkar’s guilt such that there remains
no reasonable doubt that the quotations did not contribute to his
conviction. See Leonard, 4 F.4th at 1144; United States v. Rhind,
289 F.3d 690, 694 (11th Cir. 2002).
C. Exclusion of Emails
Kachkar next argues that the district court erred by exclud-
ing as hearsay five emails between Westernbank and its attorneys
about settling civil fraud allegations against Colin Hunter, an Inyx
executive and government witness. He first asserts that those
emails were admissible business records. Alternatively, he
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18 Opinion of the Court 19-12685
contends that excluding the emails violated his constitutional right
to present a complete defense. “We review a district court’s evi-
dentiary rulings for abuse of discretion.” United States v. Hernan-
dez, 906 F.3d 1367, 1369 (11th Cir. 2018).
1. Business Records Exception
Kachkar argues that the district court abused its discretion
by finding that the emails were not “kept in the course of a regu-
larly conducted activity,” as required under the business records
exception. See FED. R. EVID. 803(6). He argues that the emails con-
cerned a lawsuit to collect on an outstanding loan, which he says is
a routine business activity. In response, the government argues
that Kachkar sought admission of only two emails, thus failing to
preserve any error concerning the other three.
We first address the preservation issue—Kachkar’s counsel
adequately proffered all the emails to the district court. “A party
may claim error in a ruling to . . . exclude evidence only if . . . a
party informs the court of its substance by an offer of proof, unless
the substance was apparent from the context.” FED. R. EVID. 103(a);
see also United States v. Quinn, 123 F.3d 1415, 1420 (11th Cir. 1997)
(“Rule 103(a)(2) does not require that a formal offer of proof be
made to preserve an objection.”). Both the court and defense coun-
sel referenced all the emails collectively before the court ruled that
they were inadmissible. So the substance of the emails was appar-
ent to the district court and Kachkar properly preserved his claim
of error.
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Turning to Rule 803(6), we conclude that the district court
did not abuse its discretion by excluding the emails. To be sure, a
party to the emails testified that he received them in the course of
his business activities at Westernbank. But the emails concerned a
civil fraud action against an Inyx employee, not the bank’s regular
business activity. Kachkar submits that Westernbank was regularly
involved in litigation, but he cites litigation concerning only debt
collection on outstanding loans, not civil fraud. “Many business-
related emails will be stored forever in electronic purgatory. But
absent a showing that the emails were kept for future, business-
related reference, the showing required for Rule 803(6)(B) will be
lacking.” 30B Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 6864 (2022 ed.). The district court was
within its discretion to exclude the emails as inadmissible hearsay
outside the business records exception.
2. Constitutional Argument
Kachkar also contends that the exclusion of the emails vio-
lated his constitutional right to present evidence impacting the
credibility of an important government witness. He cites United
States v. Hurn, where we held that a rule of evidence is not dispos-
itive when its application violates the Compulsory Process or Due
Process Clauses. 368 F.3d 1359, 1363 n.2 (11th Cir. 2004). But as we
later observed in United States v. Mitrovic, our discussion in Hurn
presupposed “either state evidentiary rulings or an abuse of discre-
tion by the trial court in applying a particular federal rule.” 890 F.3d
1217, 1222 n.2 (11th Cir. 2018); see also Hurn, 368 F.3d at 1363 n.2,
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20 Opinion of the Court 19-12685
1366 (citing Knight v. Dugger, 863 F.2d 705, 729 (11th Cir. 1988);
United States v. Davis, 639 F.2d 239, 244–45 (5th Cir. Unit B 1981);
Mills v. Estelle, 552 F.2d 119, 122 (5th Cir. 1977)). Neither this
Court nor the Supreme Court “has [ever] overturned a district
court’s proper application of a Federal Rule of Evidence as violat-
ing” a defendant’s constitutional right to present a complete de-
fense. Mitrovic, 890 F.3d at 1222 (footnote omitted) (emphasis
added). And the federal hearsay rules, when properly applied, spe-
cifically do not violate an accused’s right to present a complete de-
fense. Id.
Regardless, even assuming the proper application of the Fed-
eral Rules of Evidence could, in a certain case, violate a defendant’s
right to present a complete defense, we cannot say that the district
court’s decision to exclude these emails violated Kachkar’s consti-
tutional rights. Other witnesses testified generally to the negotia-
tions between the bank and Inyx executives to resolve the bank’s
fraud claims against the executives. And Kachkar was allowed to
cross-examine Hunter about whether his testimony was affected
by the bank’s civil fraud claims.
D. Sentencing
Kachkar argues that the district court committed three er-
rors at sentencing. First, he argues that it improperly applied the
sentencing factors in 18 U.S.C. § 3553(a). Second, he argues that the
court clearly erred by applying sentencing enhancements. Third,
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19-12685 Opinion of the Court 21
he argues that the court wrongly awarded restitution damages to
the bank.
1. Sentencing Factors
Regarding the sentencing factors in Section 3553(a), Kachkar
contends that the court should have considered the bank’s negli-
gence relating to the “nature and circumstances of the offense” un-
der Subsection (a)(1). He also asserts that, under Subsection (a)(6),
it should have considered a table showing sentences imposed on
other fraud offenders. Kachkar frames these alleged errors as pro-
cedural in nature. But a district court’s decision to consider evi-
dence in its Section 3553(a) analysis is substantive, and we review
it for abuse of discretion. See United States v. Fox, 926 F.3d 1275,
1278, 1282 (11th Cir. 2019).
a. Nature and circumstances of the offense
The district court did not abuse its discretion by refusing to
consider Westernbank’s negligence in its analysis of the “nature
and circumstances of the offense” under Subsection(a)(1). Kachkar
argues that this factor broadly covers a victim’s wrongful conduct,
much like the doctrines of contributory negligence or comparative
fault in tort law. He also analogizes it to certain federal sentencing
guidelines, which permit departures based on a victim’s conduct
and characteristics. See U.S.S.G. §§ 3A1.1(b), 5K2.10. And he argues
that, in 18 U.S.C. § 3661, Congress “separately declined to place any
limitations on the information that sentencing courts may consider
with respect to a defendant’s conduct.”
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22 Opinion of the Court 19-12685
We acknowledge that the language of this factor is facially
broad. See Gall v. United States, 552 U.S. 38, 50 n.6 (2007). But
there is no clear mandate—in Subsection (a)(1) or elsewhere—that
a court must give weight to the victim’s negligence in its analysis.
Kachkar cites the sentencing guidelines concerning the victim’s
vulnerability and role in provoking a crime, which are distinct is-
sues from the victim’s negligence. See U.S.S.G. §§ 3A1.1(b), 5K2.10.
And Congress only foreclosed limitations on the background infor-
mation that “a court of the United States may receive and consider”
at sentencing. 18 U.S.C. § 3661 (emphasis added). It did not require
a court to consider such information. The district court therefore
acted within its discretion by refusing to consider the bank’s negli-
gence in its Section 3553(a) analysis.
b. Sentencing Disparities
Neither did the district court abuse its discretion under Sub-
section (a)(6) by disregarding a table showing the sentences im-
posed on other fraud offenders. That factor requires a court to con-
sider “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of sim-
ilar conduct.” 18 U.S.C. § 3553(a)(6).
As an initial matter, the district court here never explicitly
dismissed Kachkar’s sentencing table at all. Granted, it imposed a
360-month sentence, which was higher than any sentence reflected
on the table. And it said that uninformed case comparisons were
“really not helpful.” But the court did not reject the table from
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19-12685 Opinion of the Court 23
consideration, and it stated that it “considered the statements of all
parties . . . and the statutory factors” before delivering its sentence.
All the same, any failure by the court to consider the table
was not an abuse of discretion under Subsection (a)(6). “A well-
founded claim of disparity . . . assumes that apples are being com-
pared to apples.” United States v. Docampo, 573 F.3d 1091, 1101
(11th Cir. 2009) (quoting United States v. Mateo-Espejo, 426 F.3d
508, 514 (1st Cir. 2005)). For each case, the table showed the crime
of conviction, the guideline range, the loss amount, and whether
the defendant pleaded guilty. But it omitted the details of the de-
fendants’ conduct and whether any guidelines enhancements were
applied. Of course, this Court has rejected “[a]ny requirement that
the record in other cases be scoured before the sentences in those
cases can be considered.” United States v. Irey, 612 F.3d 1160, 1221
n.42 (11th Cir. 2010). But in Irey, we still surveyed the offensive
conduct in other cases to determine whether it was comparable.
Id. at 1219–21. Because Kachkar’s table did not include such details,
the district court could not be confident that the table represented
a true “apples-to-apples” comparison. So even if the district court
had explicitly rejected the table from consideration, we could not
say doing so was an abuse of discretion.
2. Guidelines Enhancements
Kachkar argues that the district court erred twice when ap-
plying enhancements under the Sentencing Guidelines. First, he ar-
gues that a four-level enhancement under U.S.S.G.
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24 Opinion of the Court 19-12685
§ 2B1.1(b)(17)(B)(i) did not apply because he did not “substantially
jeopardize[] the safety and soundness of a financial institution.”
Second, he contends that the court recited factors from the wrong
Application Note when applying a two-level enhancement under
U.S.S.G. § 2B1.1(b)(2)(A)(iii). We review the district court’s factual
findings for clear error, and we review its application of those facts
to justify an enhancement de novo. United States v. Matchett, 802
F.3d 1185, 1191 (11th Cir. 2015) (quoting United States v. Creel, 783
F.3d 1357, 1359 (11th Cir. 2015)).
a. Four-level enhancement
The district court did not commit clear error by finding that
Kachkar “substantially jeopardized the safety and soundness of a
financial institution,” thus triggering the four-level enhancement
under Section 2B1.1(b)(17)(B)(i). Kachkar argues that other factors
unrelated to the Inyx loan caused the bank’s insolvency. But the
court never found that Kachkar was the sole contributor to that
insolvency. Nor did it need to—the sentencing guidelines only re-
quire that a bank’s safety and soundness be jeopardized “as a result
of the offense.” U.S.S.G. § 2B1.1, cmt. n.14(A).
The court’s finding on this point was adequately supported
by the record. An FDIC agent testified that the loss from the Inyx
loan “literally ate away all the profit [Westernbank] had for [2007];
and even over and above that [made] them have negative earnings.
But it also—because they had those negative earnings, it ate away
at their capital.” Citing an FDIC report, the agent explained how
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19-12685 Opinion of the Court 25
the erosion of capital harmed the bank’s ability to acquire new cap-
ital and stay afloat. That report referenced Inyx as a source of West-
ernbank’s losses.
A defense expert likewise testified that an undercapitalized
bank would suffer reputationally and struggle to find the funding
necessary to survive. These statements concerned the operation of
banks generally. So, despite Kachkar’s arguments to the contrary,
specific analysis of Westernbank’s losses was unnecessary. In light
of the evidence at sentencing, the court did not clearly err by find-
ing that Kachkar substantially jeopardized the safety and soundness
of the bank.
b. Two-level enhancement
Kachkar further argues that, in applying a two-level en-
hancement under Section 2B1.1(b)(2)(A)(iii), the district court erro-
neously recited factors from Application Note 14(B), which gov-
erns a different enhancement. The enhancement under Section
2B1.1(b)(2)(A)(iii) applies when the offense “resulted in substantial
financial hardship” to the victim. The evidence discussed just above
meets that standard, even applying the correct factors in Applica-
tion Note 4(F). And those factors (referring to insolvency, filing for
bankruptcy, etc.) are materially similar to the ones the district court
actually analyzed. At any rate, because the court excluded this en-
hancement from its guidelines range calculations out of double-
counting concerns, any error did not affect Kachkar’s sentence and
was harmless. United States v. Barner, 572 F.3d 1239, 1248 (11th
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26 Opinion of the Court 19-12685
Cir. 2009) (citing United States v. Scott, 441 F.3d 1322, 1329 (11th
Cir.2006) (“A Sentencing Guidelines miscalculation is harmless if
the district court would have imposed the same sentence without
the error.”).
3. Restitution Award
Finally, Kachkar argues that the district court erred by
awarding $103,490,005 in restitution to the FDIC. He first asserts
that the court violated his Sixth Amendment rights under Apprendi
v. New Jersey, 530 U.S. 466 (2000), by finding the underlying loss
itself rather than submitting the question to a jury. He then asserts
that the government did not prove the loss by a preponderance of
the evidence. We review the Apprendi issue de novo and the
court’s factual findings about the restitution amount for clear error.
United States v. Woodruff, 296 F.3d 1041, 1046 (11th Cir. 2002);
United States v. Moran, 778 F.3d 942, 959–60 (11th Cir. 2015).
a. Applicability of Apprendi
In Dohrmann v. United States, we held that Apprendi does
not apply to restitution orders. 442 F.3d 1279, 1281 (11th Cir. 2006).
But Kachkar argues that the Supreme Court abrogated that holding
in Southern Union Co. v. United States, 567 U.S. 343 (2012). There,
the Court applied Apprendi to the imposition of criminal fines. Id.
at 349. It held that “[i]n stating Apprendi’s rule, we have never dis-
tinguished one form of punishment from another. Instead, our de-
cisions broadly prohibit judicial factfinding that increases maxi-
mum criminal ‘sentences,’ ‘penalties,’ or ‘punishments’ . . . .” Id. at
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19-12685 Opinion of the Court 27
350. Kachkar argues that this reasoning extends to criminal restitu-
tion.
We conclude that Southern Union did not abrogate our
holding in Dohrmann. The relevant statute in Southern Union im-
posed a maximum fine of $50,000 per day. 567 U.S. at 347; 42 U.S.C.
§ 6928(d). And the Court there specifically noted that there could
not “be an Apprendi violation where no maximum is prescribed.”
Southern Union, 567 U.S. at 353. By contrast, our analysis in
Dohrmann hinged on the absence of a maximum award in the res-
titution statute. 442 F.3d at 1281; see also 18 U.S.C. § 3663. Kachkar
creatively argues that the statutory maximum for restitution is
“zero” absent a jury finding, but in support he only cites a single
dissent from a denial of certiorari on this very issue. See Hester v.
United States, 139 S. Ct. 509, 510 (2019) (Gorsuch, J., dissenting).
Furthermore, since Southern Union was issued, several of our sis-
ter circuits have continued declining to extend Apprendi to restitu-
tion. See United States v. Sawyer, 825 F.3d 287, 297 (6th Cir. 2016);
United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015);
United States v. Bengis, 783 F.3d 407, 412–13 (2d Cir. 2015); United
States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014); United States
v. Green, 722 F.3d 1146, 1148–51 (9th Cir. 2013); United States v.
Wolfe, 701 F.3d 1206, 1216–18 (7th Cir. 2012); United States v. Day,
700 F.3d 713, 732 (4th Cir. 2012). We do the same and conclude
that the district court was not required to submit the question of
the loss amount to the jury.
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28 Opinion of the Court 19-12685
b. Proof of Victim’s Loss
The government bears the burden of demonstrating the
amount of the victim’s loss by a preponderance of the evidence.
18 U.S.C. § 3664(e). It must do so “with evidence bearing ‘sufficient
indicia of reliability to support its probable accuracy.’” United
States v. Osman, 853 F.3d 1184, 1189 (11th Cir. 2017) (quoting
United States v. Singletary, 649 F.3d 1212, 1217 n.21 (11th Cir.
2011)). At the sentencing hearing, an FDIC agent explained the loss
calculations from a statement in the presentence report. But that
statement was prepared by someone else in the agency, and the
agent admitted that he had not seen any of the documents under-
lying the calculations. Kachkar thus argues that the loss amount
was unsubstantiated.
The government contends that Kachkar waived this argu-
ment by objecting to the evidentiary basis for the award only after
the sentence was imposed. But we have held that parties’ failure to
object to facts in a presentence report before a sentence is an-
nounced cannot “limit the objections cognizable on appeal.”
United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990), over-
ruled on other grounds by United States v. Morrill, 984 F.2d 1136(11th Cir. 1993) (en banc). Here, defense counsel objected to the
amount of restitution after an inquiry by the court. That sufficed
to preserve any factual error in the award, see United States v. Fox,
140 F.3d 1384, 1385 (11th Cir. 1998), so the government’s waiver
argument fails.
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19-12685 Opinion of the Court 29
Nonetheless, the government adequately proved the loss
amount through the testimony of the FDIC agent. To be sure, that
agent did not prepare the victim loss statement and had not per-
sonally seen the documents underlying its calculations. But he was
able to explain those calculations in detail, and the statement was
apparently signed by the person who prepared it. The statement
thus bore “sufficient indicia of reliability” so that the court’s reli-
ance on it was not clear error. See Osman, 853 F.3d at 1189.
III. CONCLUSION
Kachkar’s conviction and sentence are AFFIRMED.