United States v. Arthur Friedman, 971 F.3d 700

United States v. Arthur Friedman

971 F.3d 700

| 7th Cir. | 2020

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Case Information

Before F LAUM K ANNE B RENNAN , Circuit Judges . B RENNAN Circuit Judge . To keep his car dealership oat, Arthur secured loans fake buyers phony in ventory cars. scheme resulted convic tion, month prison sentence, order pay roughly $5 million restitution. cautioned against raising too many issues appeal; raises nine his conviction sentence. ruled correctly all respects, so ﬃ rm. ‐

I. Background

Arthur Friedman and Leon Bilis co owned Prestige Leas ing, luxury used car dealership. The dealership purchased, leased, sold, and exported luxury vehicles. When their deal ership began su er ﬁ nancially Friedman devised plan and schemed Bilis get cash for their business. dealership exported cars overseas yet kept the title certi ﬁ cates many them as “a lot countries require original titles, just the copies.” and Bilis secured loans against exported cars, using title certi cates as proof collateral. So and Bilis obtained loans backed assets they longer possessed.

At rst used their own names on loan applications. Later they used names family, friends, former employ ees, and customers, most often without person’s knowledge. For each loan, and Bilis falsely said car present being sold listed borrower. applications included false em ployment or income information, falsi corporate docu ments title information, forged signatures, banks relied.

To conceal fraud, took cash customers cars dealership never had delivered. In particular, customers gave down payments full deposits under ruse advance payments needed lock up cars limited inventory. Rather than use cus tomer funds promised, used money pay down bogus car loans. They similarly bilked oor plan investors. Those investors nanced cars be marketed sold Prestige dealership lot exchange cut mark up price; instead, their funding tied cars ‐ that dealership neither stocked nor intended to sell. investors’ funds, too, were used pay down fraudulent loans.

Unsurprisingly, scheme unsustainable and late banks came calling for unpaid loans. Local police, too, began investigating suspicious loan activity. Given police investigation, Friedman and Bilis retained orney Je rey Steinback jointly represent them. This joint counsel ar rangement short lived; around January Friedman ended relationship Steinback and retained separate counsel. Almost four years later federal government got involved, and and Bilis indicted. indictment charged seven counts bank fraud—each count pointing speci c loan—in violation U.S.C. § 1344. It alleged November until November Bilis schemed defraud banks by sub mi ing loan applications for fake car purchases. It alleged Bilis concealed fraud by deceiving customers oor plan investors into fronting money fake car purchases, then used money make loan payments. Bilis—still represented by Steinback— pleaded guilty entered cooperation agreement government. Due plea, government led re dacted indictment, removing counts charging alone renumbering rest. proceeded remaining ve counts. In relevant part, count ve re dacted indictment charged executed scheme “knowingly caus[ing] American Eagle Bank fund vehicle $62,589.57 name Michael Blekhman purchase Porsche Panamera.”

Less than month before trial, Friedman moved dismiss indictment or, alternative, exclude Bilis’s testi mony. Friedman claimed he shared “con ﬁ dential information” with Steinback during brief period joint representation. And because Steinback represented Bilis through his eventual plea deal, “[i]t impossible discern … what ﬁ dential information Steinback provided Bilis … has now tainted Bilis witness.” held evidentiary hearing Fried man’s motion, at Steinback Friedman testi ed. Steinback testi ed he represented Prestige Leasing, Bilis, Friedman “in connection with their business.” Though fed eral investigation loomed when hired, Steinback believed his representation “very well could be” criminal defense ma tt er “but, at juncture, could also remain civil.” In any event, Steinback advised Friedman Bilis they may later need independent counsel. Steinback testi never shared substantive information about car loans made admission wrongdoing during their discussions. For his part Steinback pass information provided government. Steinback pro duced client le ex parte review, closed portion hearing allow Steinback testify ex parte about potentially privileged ma ers. gave di ﬀ erent account joint representa tion arrangement. He said he met Steinback least three times. During meetings, initially claimed he kept discussing joint ma er Stein back during bathroom breaks because “[i]t’s too expen sive talk about stu .” That story evolved during evidentiary hearing. later claimed waited ‐ bathroom breaks to tell Steinback “certain things” he did want hear, adding that Bilis took bathroom breaks lasting around ten fteen minutes. When asked whether those conversations had anything do with al leged fraud, responded, “in way,” that “[m]ost of” those conversations involved “privileged commu nications” Still, never told Steinback keep communications from Bilis. Nor did ever empt privately relay these con dences Steinback via telephone separate one ‐ on ‐ one meeting. testi shared purportedly privileged information only when took bathroom breaks. court denied Friedman’s motion, explaining

that “carefully evaluated demeanor credibility each witness, including his body language, tone voice, fa cial expressions, mannerisms, indicative factors.” Based on these factors, found make admissions criminal wrongdoing Steinback, crediting Steinback’s “emphatic[]” testimony point lack his client le suggesting Fried man made such admissions. found testimony farfetched:

[T]hat criminal defendant—apparently cerned with his individual criminal exposure desirous keeping concern his business partner—would enter into joint repre sentation with business partner, then await inherently unpredictable bathroom breaks provide lawyer critical infor mation (rather than calling him meeting him one one) breaks Court’s credulity. district court continued: “Friedman testi ﬁ ed that he read government’s reports on Bilis’s pro ers—yet in his briefs, on redirect, or ex parte not identify any similar ‐ ities between what was contained in those reports and what he supposedly shared with Steinback in con ﬁ dence.” Because lacked prejudice from use privi ‐ leged information, ruled that dismissal charges exclusion testimony unwarranted. As precaution, provided cautionary instruc ‐ tion that “Bilis promised bene ﬁ t return coop eration with government” and “consider [his] testimony caution and great care.”

When commenced, Bilis testi ﬁ ed ﬁ rst pro posed scheme secure loans on exported cars, and that pair sought cash from sources, including defrauding customers and ﬂ oor plan investors, pay down loans. According Bilis, ramped up build house furnish imported décor. also prepared Prestige’s nancial documents, including outstand ing loans cash ﬂ ow reports. identi ed signature loan documents, rmed actual car transaction occurred loan, cars volved exported overseas before they submi loan applications. further explained Prestige made car loan payments, named borrowers, deal erships do pay down customer loans, especially when car buyer personally responsible debt.

Purported “borrowers” testi ed, explaining they never purchased cars question, authorized loan ap plications bearing their names, received funds banks. Similarly, several Prestige customers oor plan investors testi ed about giving large sums cash for car purchases investments, only to learn that their money squandered. In particular, Prestige made cash cow out the Porsche Panamera vehicle noted count ve. Evidence showed that Prestige “sold” the same Porsche to multiple buyers, including Blekhman, but never delivered the car to them because had already been exported overseas. Evidence showed Prestige took money from oor plan investor for the same Porsche. On top that, Prestige forged loan Blekhman’s name from American Eagle Bank for over $60,000. Altogether Prestige took around $300,000 the Porsche scam. When confronted the scheme, sev eral witnesses testi confessed to the fraud.

Before close evidence, the noted pretrial conference had objected to government’s proposed jury instructions. Even so, asked parties to reexamine instructions objections, giving them three day weekend this review. requested changes several instructions, but as relevant appeal, none involved Seventh Circuit Criminal pa tt ern instruction 5.06(a)–(b) concerning aiding abe ing/acting through another. With jury instructions resolved, parties proceeded closing arguments.

Friedman’s closing argument pinned scheme en tirely Bilis, accusing him fabricating role obtain favorable government deal. In rebu al, govern ment urged jury “use your common sense, check your gut,” rely “your own life experience” assess case credibility witnesses. As argument operated lone actor hid Friedman, government again asked “trust your gut” use “your own common sense … your own life experience” Friedman, president of Prestige, was ignorant of fraud, let alone Prestige’s assumption loan payment obli gations customers. objected government’s “gut” references, arguing “[t]heir gut is what [the jury] is supposed listen to.” The government responded: “It’s common sense … president a two man com pany knew exactly what going on when a company’s failing but he’s still taking money out.” The overruled Friedman’s objection and instructed jury “to use their common sense,” explaining “that is what [the gov ernment] arguing” “[i]t is proper argument.” The gov ernment then concluded: “If you do those things, if you look both evidence … but go your gut, you are going nd [Friedman] guilty.”

After deliberations found guilty three ve counts. He moved judgment acqui al a new under Federal Rules Criminal Procedure arguing, among things, that: (1) government presented insu ﬃ cient convict count ve, Blekhman loan charge; (2) prosecution “taint[ed]” by Steinback’s continued representation Bilis; (3) government’s urging jurors “go [their] gut” minimized its burden proof beyond a reasonable doubt. denied motions compre hensive wri en order. then led second motion new trial, claim

ing “newly discovered” forbearance agreement between American Eagle Bank regarding Bilis’s out standing debt, business owned wife. agreement loan, ‐ according to Friedman, “exposed a considerable bias mo tive testify falsely against Friedman.” district court de nied motion, too.

With post ‐ verdict challenges exhausted, the district calculated adjusted o ﬀ ense level as result ing advisory Guidelines range of months’ im prisonment. Even so, the imposed a below ‐ guidelines sentence of months’ imprisonment on each count, run ning concurrently on each of the three counts, ordered restitution of $4,722,347.

II. Discussion appeals a glut of pre trial, trial, post verdict

rulings. His arguments cover: (1) the alleged ict of inter est of counsel; (2) instructions; (3) the jury’s verdict on count ve, Blekhman charge; (4) denial of a new trial based on government’s “gut” references during its closing argument; (5) denial of new based on “newly discovered evidence”; (6) sentencing enhancement obstruction of justice; (7) sentencing enhancement use of sophisticated means conceal fraud; (8) court’s calculation of loss ributable fraud; (9) restitution order. discuss these challenges order. For sake of clarity appropriate standard review, issues are organized according whether they raised via motion objection.

Before turning merits, word must be said lack e ectiveness making so many claims error. “[O]ne most important parts appellate advocacy selection proper claims urge appeal.” Howard Gramley 2000) (admonishing 19 ‐ 2004 “‘kitchen sink’ approach” advancing issues on appeal). claims chosen should be few carefully measured maximum e ﬀ ect. A circumspect approach boosts credibility, while raising every conceivable challenge appeal can di lute persuasiveness plausible arguments. For these rea sons we cautioned: “[A] brief that treats more than three four ma ers runs serious risk becoming too di used giving overall impression that one claimed error can be very serious.” Practitioner’s Handbook Appeals Court Appeals Seventh Circuit (2019); Hussein Oshkosh Motor Truck Co. , 1987) (quoting same). Tempting as may be call foul every perceived trial error, strategy generally produces diminishing returns. “Legal contentions, like currency, depreciate through over ‐ issue.” Robert H. Jackson, Advocacy Before Supreme Court C ORNELL L.Q. (1951). With said, proceed nine claims.

A. Motion Dismiss Indictment Recall as scheme began un ravel, they jointly retained Steinback “in connection their business.” joint counsel engagement brief, as Fried man obtained own lawyer around months later. Nearly four years after that, indicted. Steinback continued represent Bilis, who went plead guilty cooperate with government. Friedman moved dismiss indictment, claiming he shared privileged communica ‐ tions with Steinback during short joint representation. On appeal Friedman insists Steinback’s continued represen ‐ tation infected prosecution deprived due process right fair trial. We review de novo denial a motion dismiss indictment, United States v. Hernandez ‐ Perdomo F.3d 807, (7th Cir. 2020), court’s fac ‐ tual ﬁ ndings clear error, United States v. Boyce (7th Cir. 2014).

Because “[t]he tt orney client privilege is testimonial privilege,” “so long no stemming from breach privilege is introduced at trial, prejudice results.” White 1992). Fried man concedes he “could identify any communications Steinback Bilis, turn from govern ment” suggesting breach. Without evidence, Friedman maintains district “should presumed con dences shared.” Even if true, acknowledges presumption rebu able. conclude thor oughly rebu during evidentiary hear ing issue.

To address Friedman’s concerns, held closed evidentiary hearing Steinback testi ed. On direct examination, counsel never elicited, never testi ed, he shared dences Steinback about alleged fraud. When Fried man asked whether shared communications about Steinback, responded, “in way.” But never explained what privileged communications were exchanged, despite district court’s o er ex parte and camera opportunities do so. exclusive se ing purportedly privileged

communications were conveyed—during infrequent un ‐ predictable Bilis bathroom breaks—is not credible. Fried ‐ man’s explanation changed during hearing; ﬁ rst, he testi ﬁ Steinback too expensive idle chat, then he said those chats saved things he did not want hear. That Friedman did not ask Steinback keep per ‐ sonal con ﬁ dences Bilis—with whom he entered joint representation arrangement—further supported unlikeli hood shared such con ﬁ dences. rec ognized line between personal mutual con dences, shown Friedman’s prompt decision retain independent counsel without Steinback telling him do so. All this oc curred almost four years before government issued Fried man’s indictment. record supports district court’s nding “Friedman did provide Steinback personal, privileged dences,” rebu ing Friedman’s pre sumption otherwise. challenges credibility nd

ings, arguing should disregarded Steinback’s testimony. But “[d]etermining witness credibility especially within province can virtually never be clear error.” Austin 2015) (internal quotation marks citations omit ted). And criticisms Steinback’s testimony are unconvincing. First, complains Steinback initially inform government paid $30,000 retainer, Steinback applied $25,000 during joint representation arrangement. calls “glaring omission.” Yet o ﬀ ers explanation how why the failure tell the government and Friedman paid retainer has any bearing Steinback’s credibility. Regard ‐ less, Steinback testi ed about retainer during eviden ‐ tiary hearing and Friedman cross examined him subject. also criticizes Steinback’s mistake in re ‐ calling location his initial meeting Fried man (Rockford versus Chicago). As district court noted, however, Steinback testi “possible” they had rst met elsewhere. In end, “best situated make credibility determinations light tality evidence, including witness’s statements behavior, witness statements, further corroborating contrary evidence.” Id . cannot point clear er ror crediting Steinback’s testimony over his own.

Because has not shown any privileged com munications ever shared—let alone breach privilege ected his trial—he has shown error dis trict denial motion dismiss indictment.

B. Objections Jury Instructions challenges instructions: (1) an “aiding abe ing” instruction, which tracked Seventh Circuit pat tern instruction 5.06(a); (2) “acting through another” instruction, tracked Seventh Circuit pa ern instruction 5.06(b). In view, these instructions “understated mens rea element” required underlying charges “misstated law.” concedes “the de fense object the[se] instructional errors” trial. *14 14 19 2004

Because alleged errors were raised in court, must decide whether has a ﬃ rmatively waived or merely forfeited this challenge. “Waiver occurs when a party intentionally relinquishes a known right forfeiture arises when a party inadvertently fails raise argument in court.” United States v. Flores , 929 F.3d 443, 447 (7th Cir. 2019). ^[2] “We review forfeited arguments plain error, whereas waiver extinguishes error precludes appellate review.” Id . “Although passive silence regard instruction permits plain error review ... defend ant’s ﬃ rmative approval proposed instruction results waiver.” United States v. LeBeau , 949 F.3d 341–42 (7th Cir. 2020) (quoting Natale F.3d 2013)). This rule “strictly applied” ﬃ rmative ex pressions approval, including “a ﬃ rmative statements as simple ‘no objection’ ‘no problem’ when asked about acceptability proposed instruction.” Id. at (quoting Natale at 730).

Here, twice approved instructions he now challenges appeal. First, he rmed during nal pre conference had no objections government’s proposed instructions. Then, before close evidence, 2004 15 district asked the parties to reexamine the instructions for objections. After previously adopting the government’s ‐ structions wholesale, Friedman’s counsel responded to second opportunity requests to change several instruc tions, including to elements of fraud. None of requests involved aiding abe tt ing or acting through another instructions, much less an objection to validity pa tt ern instruction. See Freed F.3d 716, 2019) (“Pa tt ern instructions are pre sumed to accurately state law.”) Therefore, we are simply relying “passive silence,” LeBeau at 341–42, or “inadvertent[] fail[ure] to raise an argument court,” Flores at 447. By choosing to pursue changes certain instructions forgoing multiple chances change others, waived possible jury instruction challenges.

C. Motion Acqui tt al

Federal Rule Criminal Procedure permits defend ant move judgment acqui tt al before case is sub mi jury, or even after guilty verdict is entered, if does believe su ﬃ cient sustain viction. F ED . R. C RIM . P. 29(a), (c)(1). rst moved judgment acqui al under Rule at close gov ernment’s case, took under advise ment. He then renewed Rule motion after come up during course need add instruction here there modify couple them at end. will go through full set again, just make sure all them are appropriate, before goes jury.

(Final Pretrial Conf., March ECF 12.) 19 2004 verdict, arguing the evidence was insu ﬃ cient to support his conviction. denied motion. On ap peal, Friedman challenges only conviction on count ve, which charged knowingly caused American Eagle Bank fund the Blekhman the fake purchase of a Porsche Panamera. review de novo the denial a defendant’s motion judgment acqui al. United States v. Hernandez , F.3d 856, (7th Cir. 2020). When faced challenge the su ﬃ‐ ciency evidence, “we view the evidence the light most favorable government will overturn jury’s verdict only when record contains evidence, regardless how is weighed, which jury could nd guilt be yond reasonable doubt.” United States v. Wade F.3d (7th Cir. 2020) (citation internal quotation marks omi ed).

To convict count ve, government had prove beyond reasonable doubt: (1) there was scheme defraud bank; (2) knowingly executed or at tempted execute scheme; (3) acted intent defraud; (4) scheme involved materially false fraudulent pretense, representation, promise; (5) at time charged o ense bank’s deposits sured Federal Deposit Insurance Corporation. Freed 722. concedes properly structed these elements American Eagle FDIC insured bank.

An appellant’s challenge su ﬃ ciency evidence “a nearly insurmountable hurdle,” Torres Chavez 2014), does clear. government produced ample Friedman’s participation overall scheme, includ ing Blekhman loan:

 testi ﬁ ed about scheme corroborated Friedman’s role it;

 Purported borrowers testi ed they did not apply fraudulent loans, receive purportedly purchased cars from Prestige, make payments on loans as typical legitimate loans;  Fraudulent loan documents contained Friedman’s sig nature, and, as Prestige’s president, pre pared Prestige’s loan cash ﬂ ow reports;  Several witnesses testi confessed fraud;  The Porsche Panamera exported before sub mission Blekhman’s fake loan application;  Porsche Panamera’s payments made Prestige, Blekhman;

 Prestige accepted payments another customer oor plan investor same Porsche Panamera;

 Prestige never delivered Porsche Panamera Blekhman anyone else. considered each these facts

clude rational trier fact could found guilty count ve. Friedman, hand, describes above facts “total lack regarding [his] role Blekhman loan.” That dearth is intensi ed, believes, because Blekhman testify trial. argu ments overlook “there nothing wrong circumstantial evidence of guilt” support a convic tion. United States v. Memar F.3d 652, (7th Cir. 2018). Indeed, made same arguments jury jury rejected them, it was entitled do. Friedman’s trial “lack” evidence of his fraudulent acts. From evi dence described above, reasonably inferred Fried man’s knowledge involvement Blekhman fraud.

D. Two Motions for a New Trial appeals district court’s denial his mo tions a new trial. Our review a district ruling such a motion is an abuse discretion. United States v. O’Brien (7th Cir. 2020). A new trial “should be granted only if preponderates heavily against verdict, such would be miscarriage justice let verdict stand.” Id . (internal quotation marks citation omi tt ed). “The ultimate inquiry whether defendant deprived fair trial,” we must ﬃ rm “unless we strong conviction erred, error commi tt harmless.” Lawrence 2015) (citations internal quotation marks omi ed).

1. First New Trial Motion start ict interest claim, repackages arguments raised motion dismiss indictment. Those arguments fail reasons already ex plained: never showed Steinback breached orney client privilege, so appropriately denied new these grounds.

Next, challenges the government’s various “gut” references during its rebu tt al closing argument. He contends references told the jury, e ect, to ignore ev ‐ idence to decide the case based feelings. ex plained, however, “improper statements during closing argument rarely constitute reversible error.” United States v. Wolfe , F.3d 1206, (7th Cir. 2012). A review such comments involves steps. First, we consider whether the challenged remark improper, second, whether the remark deprived fair trial. Id . On this second step consider ve factors: “(1) the nature seriousness the misconduct; (2) the extent which the comments invited by defense; (3) the extent any prejudice ameliorated by instruction jury; (4) defense’s opportunity counter prejudice; (5) weight supporting conviction.” Id . at (internal quotation marks omi ed).

Juries are permi draw upon their own life experi ences common sense reaching their verdicts. See, e.g. States v. Brasher (7th Cir. 2020); United Durham 441–42 2000). Fried man cedes point, arguing instead “[g]oing one’s ‘gut’ opposite ‘common sense.’” found government used “gut” phrase synony mously “common sense.” Our review record com pels same conclusion. government prefaced each its “gut” references

directly invoking common sense plainly alluding it. For example, government urged “look evi dence your gut, your common sense.” It later told ju rors “use your common sense, check your gut, ask yourself” why a particular witness would testi they did. Indeed, after Friedman’s trial counsel objected use the term, the jury told twice, once by government counsel and then again the court, that by “gut,” the gov ‐ ernment meant “common sense.” After that, during jury in structions, the once more instructed the jury use its common sense and everyday experience in weighing considering the evidence, and draw reasonable infer ences based alone. True, prosecutors would be wise avoid expression that invites confusion government’s proof burden, including “gut” comments. But case repeatedly informed that must be presumed innocent government bore burden proving him guilty beyond a reasonable doubt. Thus, even if assume gut remarks improper, instructions, coupled overwhelming evi dence role scheme, satisfy us such remarks deprive fair trial. see abuse discretion here.

2. Second New Trial Motion After lost rst motion for new trial, moved again for new based newly discovered evi dence: (1) forbearance agreement between Ameri can Eagle Bank related Bilis’s outstanding debt, (2) loan agreement between bank Bilis’s wife. Documents related forbearance agreement showed bank agreed pursue remedies had against ex change monthly payments pay down fraudulent loans Bilis’s assistance if needed information its bankruptcy case against Friedman. As involv ing wife, bank’s le contained memorandum acknowledged Bilis’s fraud, his restitution, and his help in ob ‐ taining judgment against Friedman.

Friedman argues “new” evidence shows bank centivized Bilis to fabricate testimony, and that Bilis and bank failed disclose nature and extent their ongoing relationship. denied Friedman’s motion, nding that could have discovered these docu ments sooner through due diligence, that agreements were “immaterial because they were merely impeaching cumulative evidence presented jury.”

A post judgment motion resting newly discovered ev idence must show additional evidence: “(1) was discov ered after trial, (2) could have been discovered sooner through exercise due diligence, (3) is material merely impeaching cumulative, (4) probably would have led acqui tt al.” O’Malley 2016). Taking at word that evi dence discovered after trial, he knew enough underlying facts dig deeper into relationship American Eagle Bank. concedes he knew before trial that “Bi lis making modest restitution payments bank through se lement.” knew bank witnesses set testify against him trial. No one disputes bank kept records its “se lement” arrangements its ordinary course busi ness. Nor does anyone disagree would have turned over records response simple subpoena request. key question is whether could discovered additional had taken reasonable steps do so. Because answer “yes,” second new motion fails reason alone. ‐

Even if we assume otherwise, “new” evidence was cu mulative of other evidence. On cross examination, Bilis explained that was making types payments to American Eagle Bank: one fraudulent loans, and “for my home equity loan” involving Bilis’s wife. Fried man’s counsel not follow up on speci ﬁ cs Bilis’s agreements with bank. Likewise, counsel passed on opportunity to discuss these arrangements when questioning bank’s witnesses. And had counsel sought those speci cs, still would not have led an acquit tal. At best, information could been used impeach credibility Bilis bank witnesses, o ﬀ ers li le help Friedman. “[T]ypically, newly discovered im peachment evidence does warrant relief under Rule 33.” United States v. Reyes (7th Cir. 2008). Though exception rule exists where defendant’s conviction depends entirely on uncorroborated testimony single unreliable witness, see, e.g. Taglia 1991), are circumstances here. faced mountain evidence apart from whatever Bilis bank executives had o er. That included testimony victims Prestige employees, bogus loan applications, export documents, checks, les, records. eagerly impeached on cross ex amination, pointing out had every reason pin blame secure deal with government. court, too, instructed jury “Bilis promised bene t return cooperation government” “consider [his] testimony caution great care.” still credited testimony three ve counts. For these reasons, conclude there abuse ‐ discretion or error district court’s denial Fried man’s second new motion.

E. Objections Sentencing Enhancements challenges enhancements sen tence. We review district court’s application sen tencing guidelines de novo its ﬁ ndings fact clear error. United States v. Sheneman F.3d 623, (7th Cir. 2012). will reverse a ﬁ nding clear error only when “we are left with de nite ﬁ rm conviction mistake has been commi tt ed.” Id . (citation internal quotation marks omi tt ed). A below ‐ guidelines sentence, like one here, is “presumptively reasonable against an tt ack de fendant claiming sentence is too high.” United States v. Dewi tt (7th Cir. 2019) (citation ternal quotation marks omi tt ed). rst argues district erred applying

an enhancement under U.S.S.G. § 3C1.1, provides level o ﬀ ense level increase if defendant “willfully ob structed impeded, or empted obstruct or impede, administration justice with respect investigation, prosecution, sentencing instant o ense.” Perjury is example conduct warranting enhancement ob struction, Dinga 2010), found there “no question” falsely testi evidentiary hearing about sharing privileged information Steinback. On appeal, insists he shared privileged information Steinback during sca ered bathroom breaks, again disputes credibility ndings. For reasons already discussed, bathroom break story implausible, if far fetched. See id. (“To believe ‐ [defendant’s] story would require signi cant stretch of imagination.”). So enhancement correctly applied.

Next, challenges imposition of two ‐ level sophisticated ‐ means enhancement. This en hancement appropriate when “the defendant intentionally engaged in or caused conduct constituting sophisticated means.” United States v. Muresanu F.3d 833, (7th Cir. 2020) (quoting U.S.S.G. § 2B1.1(b)(10)(C)). When determining whether defendant employed sophisticated means, courts consider “the level planning concealment relation to typical fraud its kind.” United States v. Harris (7th Cir. 2015); Anobah 2013) (considering same ﬃ rming application sophisticated means enhancement where scheme spread over two states, used false documents, false loan applications, false documents to support misinformation contained loan applications). found fraud exceeded garden ‐ variety scheme commit fraud. It included: selling single cars multiple purchasers; orchestrating c tional car buyers obtain loans; assuming loan payments bogus debtors; manipulating oor plan investors; misappro priating personally identi able information belonging fam ily, friends, former customers; covering all up over span three years, as opposed one fake loan applications. insists applications tained “the most basic lies.” But facts are contrary. His went far beyond simple falsities. Those lies cluded creation phony corporate resolution documents, misuse driver’s licenses prior legitimate loans, use already exported cars collateral secure cash ‐ conceal fraud. argues that “international shipping had long been a part Prestige’s business model,” suggesting fraud was complex as seems. But that only reinforces a ﬁ nding sophistication. “[A] district court need only ﬁ nd by preponderance facts suf ﬁ cient support enhancement.” United States v. Sewell F.3d 839, (7th Cir. 2015). exploited his pro ciency international shipping practices secure loans without collateral, distinguishing from typical bank fraud. So, district court err applying en hancement.

F. Objections Loss Calculation Restitution Finally, challenges district loss calcu lation $4,722,347 its order restitution that amount. review ndings loss amounts clear error. United States v. White (7th Cir. 2018), will re verse only if are left de nite rm conviction mistake has been commi ed, Orillo 2013).

In calculating loss amount, included losses su ered by ﬂ oor ‐ plan investors, totaled around $2.5 million. argues ﬂ oor ‐ plan investors’ losses should be excluded from loss amount restitution award. way sees it, defrauding ﬂ oor plan investors was separate from bilking banks. disa greed, explaining entire reason Prestige could “keep[] business ﬂ oat” concealing fraud, key part scheme “seeking more funding” from oor plan investors. Nor would investors continue their investments had they known they pumping cash into fake inventory dealership survived fraudulent 2004 loans. court analogized the scheme “musical chairs,” in money comes in defrauded investors pay o ﬀ defrauded banks.

On appeal contends the district based its loss ndings speculation made no speci ﬁ c ﬁ ndings that the investors’ loss amount tt ributable Friedman. disagree, conclude the record rmly supports the dis trict court’s nding that the solicitation, acceptance, use oor plan investor funds kept Prestige ﬂ oat the concealed for over three years. asks too much the court. When calculating loss sentencing, the “must conclude is more likely than that the amount in question is correct,” “a reasonable estimate su ﬃ ces.” United States v. Bogdanov F.3d 630, (7th Cir. 2017). does dispute loss amount su ered by inves tors. He merely challenges incorporation losses into his loss calculation. Because record amply supports used investors’ proceeds pay down fraudulent loans, nd error loss calculation. brief ack restitution order fails

same reasons. That order reviewed abuse discretion, United States v. Corrigan (7th Cir. 2019), viewing evidence light most favorable gov ernment, Yihao Pu 2016). acknowledges Mandatory Victims Restitution Act requires restitution victim “directly harmed defendant’s criminal conduct course scheme, conspiracy, pa ern,” including fraud. See U.S.C. § 3663A(a)(1)–(2), (c)(1)(A)(ii). He merely reiterates argument sentencing insu ﬃ cient show oor plan investors’ losses caused bank fraud scheme. Viewing evidence light most favorable government, disagree. same record ndings supported loss calculation support restitution award.

III. Conclusion

Finding merit claims, convic tion sentence are A FFIRMED .

[1] This is time honored tenet advocacy. See generally A NTONIN S CALIA & B RYAN A. G ARNER M AKING Y OUR C ASE : T HE A RT OF P ERSUADING J UDGES 22–23 (2008) (“The most important—the very most important— step you will take … before appellate court, selecting arguments you’ll advance.”); M ARCUS T ULLIUS C ICERO D E I NVENTIONE (H.M. Hubbell trans., Harvard Univ. Press 1949) (describ ing selection arguments “the first most important part rhetoric”).

[2] Before decided Flores panel invoked Circuit Rule 40(e) circulated opinion all judges active service, no judge voted hear case en banc. See n.1.

[3] At final pretrial conference, counsel had following colloquy: THE COURT: Jury instructions. There objections ‐‐‐ COUNSEL: There weren’t. THE COURT: ‐‐‐ counters. So, I will adopt government’s structions without objection. … And I realize there may be issues

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