*1 the scale to increase plans RB & that America, STATES UNITED fac- weigh this decline business its Plaintiff-Appellee, analysis. in our tor factors, foregoing considered Having not demon- has LWC conclude
we ROSS, Defendant- Anthony H. mark use of & R’s B strated Appellant. Win- Vineyard de Leelanau “Chateau likeli- actionable an create likely to ery” is No. 05-4469. cor- district of confusion. hood Appeals, Court R’s favor B &on judgment rectly entered Sixth Circuit. ground. 5, 2007. June Argued: III. 21, 2007. Sept. Filed: Decided Act a Lanham brought LWC also under competition unfair claim of an the success Because § 1125.
U.S.C. a show requires this section under
action cre actions infringer’s alleged
ing confusion, resolution a likelihood
ate claim infringement trademark LWC’s See claim. of this disposes § 1114
under at 1128. Club,
Champions Golf law for common claims law state
LWC’s Michigan under competition
unfair same for the fail Act Protection
Consumer Laws Comp. Mich. See
reason. “unfair, among 445.903(l)(a) (including § prac trade
unconscionable, deceptive” or confusion probability “[clausing
tices source, as misunderstanding or certification or approval,
sponsorship, services”); Custom Goscicki or
goods Inc., 229 Specialties, Copper
Brass & (stat (E.D.Mich.2002) 743, 756 F.Supp.2d under Michi standard applicable
ing competition unfair law common
gan for federal tests as same
claim “is unfair federal infringement
trademark
competition”).
IV. reasons, affirm we foregoing
For the court.
judgment *3 Watson, Cleve- P. Myron
ARGUED: W. Robert Ohio, Appellant. land, for Attorney, Kern, Assistant ON Ohio, Appellee. for Cleveland, Cleveland, Watson, P. Myron BRIEF: Kern, As- Robert W. Ohio, Appellant. Cleveland, Attorney, United States sistant Ohio, Appellee. BATCHELDER, MARTIN,
Before: Judges. CLAY, Circuit opinion J., MARTIN, delivered J., CLAY, joined. court, in which 531-32), delivered BATCHELDER, (pp. J. in concurring opinion separate dissenting part. in OPINION JR., MARTIN, Circuit F. BOYCE Judge. his appeals H. Anthony
Defendant fraud counts bank on two conviction Defendant § 1344. of 18 U.S.C. violation ignorance (1) the deliberate challenges court, by the given jury instruction defen- (2) questioning government’s bankruptcy personal regarding dant sufficiency the evidence (3) petition, (4) dis- conviction, supporting intended finding that court’s trict totaled scheme fraud enhance- a sentence resulting $634,300, follow, find we the reasons For ment. the district court did not abuse its discre- was general contracting business affiliat- tion in giving a ignorance deliberate in- ed with Northshore Realty for express struction or in overruling objection purpose of building low-income houses. government’s cross-examination re- Ross obtained financing through FirstMer- garding bankruptcy petition, it Bank and also from family and friends and that the evidence was sufficient to who invested between support both convictions for bank fraud. project. Between 2001 and find, however, We that the district court’s Ross sold 18 of these homes. Unfortu- determination of intended loss at sentenc- nately, he was never able to profit return a ing was in error. Accordingly, we AF- *4 them, on and suffered a financial loss. FIRM conviction, defendant’s VACATE Throughout 2002, FirstMerit repeatedly sentence, and REMAND for resentenc- reminded Ross to make timely payments ing. on his 2003, credit line. In FirstMerit foreclosed on his credit line and Ross was
I. unable to repay the loans he obtained from 1. Nigerian The his family Counterfeit and friends. inAlso Ross
Check filed Scam for bankruptcy, though his businesses remained intact. Anthony Defendant Ross is a residential and commercial real estate broker in It Lo- was during these financial difficulties rain County, Ohio. Ross has been in real that Ross met potential commercial real estate for approximately twenty years. estate investor. In Ross was attend- After graduating high school, from ing a Ross National Realtors’ Association con- joined the Navy, where he in- became vention in Washington, D.C. where he met volved in real estate part time. After individual the name of Didi Duke. receiving an honorable discharge Duke and agreed Ross to develop commer- Ross became a real agent estate cial Lorain real estate in Lorain County. Duke County. In 1997, after working as an gather offered to approximately mil- $12.5 agent Realty One for several lion years, in investment capital for the proposed Ross obtained his broker’s project. license and Upon his return from the confer- opened his own business, ence, Northshore Real- Ross memorialized his agreement ty. At the trial, time of Northshore Real- with Duke in a contract to represent Duke ty had eight full-time employees and seven and a “group of investors ain development affiliated independent agents. or an investment of about $12.5 million.” Ross became a Certified Commercial In- Ross and Duke corresponded several times dustrial Management (CCIM) specialist, over the phone before agreeing to enter designation of some renown estate, in real into contract, this and Ross had his attor- which allowed him to conduct ney commercial review the prior contract to signing it. real estate During transactions. Testimony time not, at trial did however, pro- as an agent in Lorain County, was vide Ross insight into specifics of this involved with the Lorain County alleged Board of commercial real estate transaction Realtors and in 2001 was elected its other presi- than million $12.5 was to be invested dent. in commercial real estate projects in Lo- rain County, Ohio.
When Ross opened Northshore Realty, planned to develop and sell houses to According to Ross’s testimony, after the low-income residents of Lorain County. contract signed, was Duke mailed a Ross created E.A.R. Investors, Inc., which due diligence check to him. Ross 2003, several summer During the on mail overnight via check this received with transaction the failed after months drawn was check The 2002. October by an individual contacted Duke, Ac- Ross Services Card Credit on an Associates until May 2003 The From York. Didi of New Hassan. Bank named with count there year, printed be fall of in the appears itself sometime check receipt Upon check. commu- telephonic email Petroleum British were several ato went quickly check, dis- Ross Hassan nications between (nearest his in Oakwood branch transaction FirstMerit the resurrection cussing $5,000 cash get office) it and deposit led Duke. Hassan arranged with originally a hold him informed branch back. name by the an individual believe Ross to size of that on a check placed be would fi- arranging from Canada Bello funds to receive unable would spoke for the deal. nancing check cleared. after until check per- provided phone Bello on check to to take decided then securing purposes sonal information (nearest his in Sheffield branch FirstMerit financing. over him] home) “they [knew because *5 via over- 2003, Ross received branch, was Ross June At the Sheffield there.” $346,990.60 drawn a check for to mail manager night the from approval to gain able Hyundai Dodge Gregory Investors account E.A.R. on the in his the check deposit Park, Illinois. Highland Ross Dealership back. in to receive Car and account Mr. payroll make was from to check $5,000in order this believed Ross the needed Hyundai construc- housing Dodge Gregory his low-income Bello and one at later, on October estate days real proposed A few in the tion sites. investor was an Hyundai another Dodge Ross withdrew Gregory Ross called deal. in order account Investors in actually E.A.R. investors the they from were confirm to with taking he tripa was cash was have check to the discovered deal and the wife) Orleans. (now to New girlfriend his the counterfeit mailed Ross counterfeit. their at Hyundai Dodge Gregory card to Orleans, bank check Ross’s in New While fro- were request. from FirstMerit card credit funds. withdraw to unable he was zen a Bank later, Ross received days A few bank the from an official with spoke Ross $5,000. check cashier’s of America $90,000 check the him informed who FirstMerit his in this check deposited Ross Upon counterfeit. was deposited had he from money sent it to be account, believing Orleans, con- Ross New from return up opening purposes for the Hassan the counter- about inquire Duke tacted proposed the facilitate account offshore Ross informed Duke check. feit check, Ross the depositing After deal. in in- interested longer were investors and informed bank by the contacted was the after vesting Ross Because counterfeit. was check out backed had events 9/11 funds from withdrawn had not at FirstMerit Ross’s accounts transaction. Ross no loss. check, suffered the bank trial. time of through frozen remained with dealing he was bank informed subsequently difficulties financial investing interested were who Nigerians filed for bear, much too proved several shared Ross County. in Lorain 7 of Chapter under bankruptcy Hassan himself between emails 18, 2003. April on Code Bankruptcy investi- bank investigator. bankruptcy discharged was Ross likely a was this informed Ross gator 29, 2003. July scam stop and to dealing with Hassan or the money to have been wired into his any other Nigerians. promised Ross account.
cut off his dealings with Hassan. Over the next days, three pur- chased several cashier’s checks from the August From until May 2004 there bank in order to pay off debts owed to was a break in the email communication friends and family. He also moved between Ross and Hassan. No evidence $505,000into an investment at account Ed- presented as to why this break oc- ward Jones which he had opened approxi- curred other than Ross’s own testimony mately a month earlier. days, Within that he was ignoring Hassan because he Treasury check was returned to National was angry about the counterfeit checks. City as counterfeit. Thanks to its own In the summer of Hassan contact- quick actions and cooperation Ross, ed again in an attempt to revive the National able recover all but deal with new financing. Hoping to pre- $60,824. vent any future checks, Upon learning that the funds were from informed Hassan only would accept a check rather wire, than a Ross immedi- payment by wire transfer from a United ately contacted Hassan and Ace Financial. States bank. Hassan agreed to wire At point some in the summer of transfer and initiated negotiations with phone number for Ace Financial was cut Ace Financial, allegedly based in Chicago, off and Hassan stopped communicating to secure financing the amount of with Ross. At time, Ross had been in $700,000. In June of Ross emailed *6 contact with the bank investigator and had Hassan stating that he had been contacted attempted negotiate payment a plan to by the Chicago financiers about the loan pay back the money lost bank, but and that the disbursement would occur the bank turned down request and within seven to ten days. business referred the for case prosecution. July 15, On 2004, City National Bank In 2004, November United States Secret received an envelope containing a United Service agents up showed unannounced at States Treasury $700,000 Check for pay- Ross’s office. One of agents told Ross able to A.H. Ross Corp. The account num- they were investigating a Nigerian coun- for ber A.H. Corp. Ross typed was on the terfeit check scam of which may Ross have endorsement line on the back of the check. been a victim. Believing agents were Upon receipt of the check, National there help him, Ross happily discussed immediately deposited the check in the all of his dealings with Duke and Hassan A.H. Ross Corporation account. No hold in detail. This meeting lasted several was placed on the check as Treasury hours in a conference room in Ross’s of- checks are guaranteed considered funds. fice. At point some during this meeting, time, At this Ross was out of town. When Ross deduced that he was the actual sus- he returned to town on Monday, July 19, pect. The agents informed Ross of his 2004, greeted Ross was with an email from rights Miranda and Ross subsequently Hassan if asking the funds had been cred- agreed to offer a written statement. ited to his account phone and a call and fax his testimony and his statement, written from Ace Financial in Chicago stating that Ross revealed that point at some after the funds had been disbursed to his ac- receiving the first check, counterfeit count at National City in the amount of researched Nigerian scams on the inter- $700,000. Ross testified that he believed net. After research, Ross insisted is that “loss 2Bl.l(b)(l), states which § trans- by wire done all transactions loss.” intended or actual loss of greater re- banks States United between fer amount to the intended objected Ross that he Hassan assurances ceived overruled court the district but $634,300 of of not were his associates found jury only that stating objection statement written Additionally, his scam. fraud of bank counts on both guilty his deal- Ross through aware he was said totaling checks two counterfeit passing were they Hassan Duke and with ings $790,000. him, but he to scam attempting likely got me.” they before “get them wanted had that Ross court found dealing “business stated that also He Ross 21; because of Level Offense Total got Greed cut off. been have should convictions, placed prior had in his he said Finally, me.” of better guide- I. The History Category Criminal idea who had no that he statement written Level for that Offense range lines Treasury check. $700,000 sent to 46 Category History Criminal grand 2004, sentenced a federal court The district On December months. indict- four Ohio, Cleveland, imprisonment returned months to 37 Ross jury of counts The district two release. charging supervised years ment U.S.C. of 18 low end Fraud, at violation noted court Bank related count range. The first guidelines § 1344. First- at passed check related second count
Merit, II. City. at National deposited check Instruction Ignorance 1. Deliberate guilty jury found July On On October bank fraud. both counts a district reviews Court This 37 months was sentenced abuse jury instructions choice court’s years by four incarceration, followed Prince, 214 discretion. release. supervised Cir.2000). A trial 740, 761 *7 in jury crafting discretion broad has of Determination Court’s 2. District its discretion not abuse does structions Sentencing At Loss Intended accurately to charge “fails jury the unless the dis- hearing, sentencing Layne, At Ross’s v. United States law.” the reflect pro- findings Cir.1999) the adopted (6th (quoting court trict 556, 574 F.3d 192 resulting loss that the actual Busacca, officer F.2d bation 863 v. States United $71,648.86and fraud was Moreover, single bank Cir.1988)). (6th 435 $634,300.00. loss was the intended viewed may charge that be jury the provision be rather, charge must the isolation; sentence, the district computing v. States United as whole. considered Sentencing the that determined court Cir.1993). (6th A 343, 350 Lee, 991 F.2d § 1344 18 U.S.C. for violation Guideline upon based reversed may be judgment 7. The Level Offense for Base calls “ in if the ‘only instruction jury improper pursuant that also found whole, confus were as a structions, viewed 1.1(b)(1)(H) offense 2B§ U.S. S.G. prejudicial.’” misleading, or ing, by because increased level should (6th 887, 892 Harrod, 168 F.3d $400,000 and between Norwegian Cir.1999) Beard (quoting it court stated The district $1,000,000. (6th 71, 72-73 Lines, Caribbean “loss” by the definition constrained Cir.1990)). U.S.S.G. 3 to Note Application contained The district court gave follow court gives a ignorance deliberate instruc ing ignorance deliberate instruction: tion that does not misstate the law but is Next I want to explain unsupported something evidence, sufficient it at is about proving a most error, defendant’s knowledge. long harmless so as there No one can avoid responsibility for a sufficient evidence the defendant’s actu crime by deliberately al ignoring knowledge the obvi- support a conviction. Id. ous. If you are that Anthony Court, convinced The Mari relying on Supreme Ross deliberately ignored a high proba- Court’s decision in v. United Griffin bility any that States, checks or deposits re- 502 U.S. 112 S.Ct. ceived from Didi Hassan or any of his (1991), L.Ed.2d 371 reasoned that if jury associates would be counterfeit or other- instruction not does law, misstate the but wise nature, fraudulent in you then may rather is unsupported by evidence, find Anthony Ross knew that the jury’s conviction will not be if overturned $700,000 deposit into his National there is evidence supporting a conviction Bank account on July 2004 was also on another theory. instructed Id. at 786. fraudulent in nature. In subsequent cases this Circuit has reaf
But this, you to find must be con- firmed See, Mari’s reasoning. e.g., United beyond vinced a reasonable Monus, doubt States v. 390-91 Anthony Ross was Cir.1997) aware of a high prob- (“[E]ven if there had been insuf ability any checks or deposits re- ficient evidence to support a deliberate ceived from Didi Hassan or of his ignorance instruction, we must assume associates would be counterfeit or fraud- jury followed jury charge and nature, ulent in Anthony did not convict on grounds of deliber deliberately closed his eyes to what was ignorance.”). ate obvious. Carelessness negligence or or Here, Ross does not argue that the in foolishness is not the same as given struction misstated the law on delib knowledge, and is not enough to convict. erate And, ignorance.1 as the government This, course, is all you to decide. points out, there is sufficient evidence to This instruction tracks verbatim with the support a ignorance deliberate instruction Sixth Circuit Pattern Instruction 2.09 on on the second count-the only count for ignorance. deliberate It appears the dis- which the given. instruction was Over the -only trict court instructed on deliberate course of years, two Ross received four ignorance regard count second checks, one of which he found fraud, i.e. the count relating so suspicious that he called the account *8 $700,000Treasury check. holder to determine its validity, only to argues
Ross that the district court confirm suspicion his that it was a fraud. abused its discretion because there was After the check was returned as insufficient evidence to support counterfeit, deliber went Ross far so as to conduct ignorance ate instruction. Ross’s argu research on Nigerian scams and testified ment is largely controlled by United States that he believed deal to be a scam. He Mari, v. (6th 47 F.3d Cir.1995). 782 even promised National Bank he Mari, this Court held that when a district would cease all dealings the Niger- 1. Even if Ross argued, had so the district the law of ignorance. deliberate e.g., See strictly court adhered to wording the of the Beaty, United (6th States v. Sixth Circuit Jury 2.09, Pattern Instruction Cir.2001). which this Court has held accurately states the opening door family, and friends ing shows of conduct pattern This ians. on that statement of exploration for target of might be that was aware the gov Accordingly, were cross-examination. checks that scam on cross-ex elicit attempted to to ernment scam, he continued yet that of ex improperly Ross had evidentiary that amination This checks. fraudulent accept from creditors in- some ignorance cluded a deliberate supports record The including others. while bankruptcy count. second on the struction any impeach to allowed government Regarding Testimony His Ross’s 2. ex direct in his by Ross made statement Bankruptcy Petition Personal un through cross-examination amination (“The Evidence examination, Rule of Federal Ross der direct During may be attacked a witness person credibility of for petition filed a that he testified exactly was This any party....”). 7 of the Chapter under bankruptcy al government’s “all at trial. that occurred He testified what Bankruptcy Code. impeach to put were intended questions owed were [he] that people loans list he had testimony that exami On cross earlier bankruptcy....” Ross’s into the thus were listed some creditors all of his nation, elicited ed it was modular Virostek Rule See his failed 607. under proper related creditors 14 Fed. list others. Dep’t/Trs., Police Liberty Twp. but failed plan housing Cir.2001). (6th Ac testimony explained 493, 506-07 redirect Appx. Ross’s due were the district discrepancies hold that alleged cordingly, we these overruling personal, was bankruptcy that his its discretion not abuse the fact did contracts had his investors objection. of and some Ross’s per him not with businesses with his
sonally.
Sufficiency
the Evidence
3.
objected
timely
trial,
counsel
Ross’s
At
appeal
argues
cross-examination
prosecution’s
to the
support
insufficient
evidence
inconsistencies
regarding
questions
consid
fraud.
When
convictions
improper
as
petition
bankruptcy
does
Court
this
argument
ering such
crimes,
404(b)
other
evidence
Rule
consid
presented,
evidence
“weigh the
not
attorney argued
acts. Ross’s
wrongs or
witnesses, or substi
credibility er the
attempting
government
jury.”
judgment
[its]
tute
bankruptcy
evidence
elicit
improperly
Inc.,
Servs.,
Trans.
M/G
court overruled
The district
fraud.
Cir.1999).
Our
584, 588-89
question-
line of
allowed
objection and
“whether,
view
after
to determine
task is
ap-
claim on
now renews
ing. Ross
most favor
light
the evidence
ing
peal.
giving
prosecution,
able
after
evidentiary deci
judge’s
all
trial
“[A]
government
infer
benefit
absent
be reversed
normally
drawn
reasonably
not
will
sions
that could
ences
discretion.”
fact
of abuse
showing
trier
rational
a clear
testimony,
*9
1033,
Daniels,
F.2d
948
be
v.
crime
States
elements
find the
could
Cir.1991)
(cit
v.
States
(6th
(citing United
at 589
Id.
1035
doubt.”
reasonable
a
yond
Cir.1990)).
(6th
901,
319,
904
F.2d
917
Hickey,
443 U.S.
Virginia,
ing Jackson
(em
(1979))
560
61 L.Ed.2d
99 S.Ct.
his
During
flat.
falls
argument
a
Thus,
“bears
original).
phasis
testified
examination
direct
sufficiency of
in his
heavy burden”
very
creditors, includ-
personal
of his
all
listed
the evidence challenge. United
ally,
during that
period
same
a counterfeit
Davis,
(6th
Cir.2005)
$700,000Treasury check was mailed to his
(internal
omitted).
citations
bank with instructions to be deposited in
his account.
jury
The
also considered
In
prove
order to
a violation of 18
more
forty
than
emails between Ross and
§
U.S.C.
government
prove
must
the “Nigerians” and listened to Ross’s own
“(1)
three elements:
the defendant
testimony from the witness stand.
knowingly executed or attempt to execute
presented
evidence that
he was in
scheme
defraud a
institution;
financial
contact
(2)
with investors from
overseas
defendant did
with
so
that he believed those investors
defraud;
(3)
intent
were legit-
that the finan
imate. He
presented
also
cial
evidence
institution
by
was insured
the Federal
after he received the first three
Deposit Insurance
counterfeit
Corporation.” Davis,
checks he became very upset
In the present case, government of- Washington, D.C. Ross also admitted fered evidence that over the course of two researching Nigerian scams on the inter- years Ross passed a $90,000 counterfeit net and that he believed this proposed deal check, received suspicious and counter- was likely a scam. He even stated feit check in mail, and depos- greed got had the better of him. And ited a check. Addition- ultimately, Ross did receive four counter- *10 of aby preponderance supported facts are them. three of deposited feit checks Solorio, v. States United into the calls evidence.” evidence circumstantial This (internal Cir.2003) (6th 580, 598 the simply 337 F.3d story that he Ross’s doubt omitted). “Rather, the district citations Nigerian anof elaborate victim a contro affirmatively that rule on said it cannot court must Thus scam. check potentially it have found could could where fact verted matter of trier no rational is, sentence;” that impact the defendant’s doubt a reasonable beyond facts, actually fraud. court must in bank “the district knowingly participated find by preponderance a so it do and must Loss Court’s 4. The District White, at 415- the evidence.” at Determination compliance literal this require 416. We Sentencing 32(i)(3)(B) it “en- because with Rule sentence accuracy of the to the objected hanc[es] sentencing, At States United the record.” clarity of report the presentence office’s probation the (6th 878, 886 Cir. F.3d Treadway, the two loss intended that the finding 2003). $634,300. totaled fraud bank counts zero loss was intended the argued to Here, failed the district court to prove failed government the and that in record findings the on any factual make re court district The any loss. intended calculation. loss its intended support of the adopted argument Ross’s
jected embraced simply court Rather, district the in the finding report’s presentence presentence in the figures set forth the $634,300. loss was tended “[Rjeliance objections. Ross’s report over following the gave court district is insufficient report] [presentence the itsof support in record Treadway, on the statement dispute.” in are facts when the intend- to objection the Ross’s the rejection we Accordingly, find at 886. F.3d amount: explain its ed loss to failing in erred court district findings the evi- jury heard actual factual the It seems determination mind evi their up made the dence, jury preponderance by and the supported why we amounted That’s credible. the intended as to what dence So counts. on both $634,300. verdict guilty have total of- think that I point at III. calcula- accurate 21 is an level fense of- probation reasons, furnished we AFFIRM tion foregoing For the .... a delib- give fice decision court’s the district instruction, AFFIRM ignorance erate “Fed held that has Court This to overrule decision court’s 32(i)(3)(B) Criminal Procedure eral Rule con- jury’s 404(b) AFFIRM objection, sentencing at the district requires fraud, but both counts viction on presen- portion disputed rule on REMAND Ross’s sentence VACATE mat controverted other report or tence resentencing. White, ter.” Cir.2007) (internal quotation 380, 415 BATCHELDER, Circuit M. ALICE omitted). Thus, defendant if the marks dissenting concurring Judge, report, presentence dispute raises part. summarily merely may not “court deci- majority’s in full with I concur presen- findings factual adopt conviction, I dis- but affirm Ross’s sion simply declare report or tence *11 agree that the district court violated Everett, its States v. 32(i)(3)(B) duty under Fed.R.Crim.P. and, Cir.2001). The court nevertheless ad- reason,
for this dissent from the court’s dressed Ross’s argument, adopted the decision to vacate Ross’s sentence and re- jury’s adverse credibility finding, and sen- mand for resentencing. tenced prescribed Ross as guide- in the lines. circumstances, Under these that is 32(i)(3)(B) Fed.R.Crim.P. requires a dis- 32(i)(3)(B) all Fed.R.Crim.P. required. trict court “rule” “any disputed por- tion of the presentence report or other
controverted matter.” At sentencing, argued that the intended loss should
have been zero because “never intended
a with regard loss to the bank.” When
presented (rath- with this credibility-based fact-based)
er a than argument, the court reasonably adopted jury’s assessment Kimberly CRUSE, L. Plaintiff- credibility. so, In doing the dis- Appellant, trict court responded to only issue raised Ross and thus satisfied its duty
to “rule” on this “controverted matter.” COMMISSIONER OF SOCIAL
This is not a case where the district SECURITY, Defendant- court “summarily adoptfed] the factual Appellee. findings in presentence report or sim- No. 06-5772.
ply declare[d] that the facts sup- [were] ported by preponderance of the evi- United States Appeals, Court of dence.” See Solorio, United States v. Sixth Circuit. (6th Cir.2003). Ross did not Argued: Jan. 2007. contest or ask the court to recalculate the figure in the presentence report, but Decided Sept. Filed: 2007. merely argued that he did not intend a loss to the bank. Under circumstances, these
the court was under duty to make an
independent loss calculation. The issue
before the district court was clear: If Ross (i.e.,
intended loss if sought to defraud banks), then the loss calculation in the
presentence report was If, correct. how-
ever, he did not (i.e., intend loss if he did
not seek to banks), defraud the then the
loss calculation would be Perhaps, zero.
the district court found this argument to
be baffling light of the fact that
had been guilty found fraud, one elements which—as the majority
opinion correctly explains regard
Ross’s claim of insufficient evidence—is
the “intent to defraud.” See also United