United States v. Dermen

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 9, 2025
• Docket: 23-4074
• Status: Published

Opinion

Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 9, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-4074

LEV ASLAN DERMEN,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:18-CR-00365-JNP-3) _________________________________

Benjamin S. Waxman (Howard M. Srebnick, with him on the briefs), Black Srebnick, Miami, Florida, for Defendant-Appellant.

Elissa Hart-Mahan, United States Department of Justice, Tax Enforcement Division, Washington, D.C., (David A. Hubbert, Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals and Tax Enforcement Policy Section, and Katie Bagley and Joseph B. Syverson, Attorneys, Tax Enforcement Division, Washington, D.C. and Of Counsel: Trina A. Higgins, United States Attorney, Office of the United States Attorney, Salt Lake City, Utah, with her on the brief), for Plaintiff-Appellee. _________________________________

Before HOLMES, Chief Judge, SEYMOUR, and EBEL, Circuit Judges. _________________________________

HOLMES, Chief Judge. _________________________________ Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 2

Defendant-Appellant Lev Aslan Dermen (formerly “Levon Termendzhyan”)

appeals his convictions for conspiracy to commit mail fraud, conspiracy to commit

money laundering offenses, and money laundering. He raises seven issues on appeal.

First, he argues that the district court erred by failing to grant his motion for a

mistrial based on juror misconduct and exposure to extraneous information. Second,

he maintains that the district court erred by failing to grant his motion for mistrial

based on COVID-19. Third, he contends that the district court erroneously denied his

motion for a new trial under Brady v. Maryland, 373 U.S. 83 (1963). More

specifically, as to this third claim, Mr. Dermen alleges that the government violated

Brady by failing to produce evidence concerning a government witness and another

individual. Fourth, he argues that the district court erred by admitting improper

expert testimony in the guise of summary testimony. Fifth, he asserts that there was

insufficient evidence to sustain five of his money laundering convictions. Sixth, Mr.

Dermen contends that the district court improperly calculated his sentence. And

seventh, he challenges the court’s forfeiture and money judgment on substantive and

procedural grounds.

Having carefully assessed all of Mr. Dermen’s arguments in support of these

issues, we reject them. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742, we affirm.

I. BACKGROUND

By way of introduction, this case concerns an alleged conspiracy, fraud, and

money laundering operation orchestrated from 2012 to 2018 by Mr. Dermen, Jacob

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Kingston, Isaiah Kingston (Jacob Kingston’s brother), and other co-conspirators.

Specifically, Mr. Dermen, Jacob Kingston, and their co-conspirators designed a fraud

scheme in which they filed false claims for federal biofuel incentives with the

Internal Revenue Service (“IRS”) and the Environmental Protection Agency

(“EPA”), received payouts through the mail from the U.S. Department of Treasury,

and laundered the fraud proceeds.

These false claims were tremendously valuable: the conspiracy sought over $1

billion in fraudulent tax credits and tradeable credits called Renewable Identification

Numbers (“RINs”) and successfully received over $500 million in payouts from the

federal government. Mr. Dermen and his co-conspirators laundered these proceeds

through a variety of channels, including cycling fraud proceeds through domestic and

foreign entities and accounts and purchasing houses, cars, and a yacht. In total, Mr.

Dermen directly received over $70 million in fraud proceeds and indirectly received

over $100 million of deposits into Turkish bank accounts in which he had an interest.

The conspiracy continued until 2018, when Mr. Dermen and the Kingstons

were indicted. Mr. Dermen was charged with one count of Conspiracy to Commit

Mail Fraud, in violation of 18 U.S.C. §§ 1341 and 1349 (Count 1); one count of

Conspiracy to Commit Money Laundering Offenses, in violation of 18 U.S.C.

§ 1956(h) (Count 2); and eight counts of Money Laundering, in violation of 18

U.S.C. §§ 1956(a)(1)(B)(i) and 1957 (Counts 3–10).

At trial, Mr. Dermen attempted to rebut the government’s case against him by

alleging that Jacob Kingston and his family members were the primary perpetrators

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of the fraud scheme and that Jacob Kingston was scapegoating him for the fraud to

receive a lighter prison sentence. After a seven-week trial, the jury convicted Mr.

Dermen on all counts, and the district court sentenced him to forty years’

imprisonment. The district court also ordered a forfeiture and money judgment

against him.

We trace the essential features of this case’s sweeping factual and procedural

background in the following sections, before turning to the seven issues that Mr.

Dermen raises on appeal.

A. Factual Background1

1.

Biofuel is a renewable fuel manufactured from feedstock such as vegetable oil.

This matter concerns two biofuel products: “B100” and “B99.” Pure biofuel is called

“B100” because it is 100 percent biofuel. B99 is a blend of B100 and a small amount

1 Our summary of the factual background is based on the evidence presented at trial, viewed in the light most favorable to the verdict. See United States v. Goldesberry, 128 F.4th 1183, 1191 (10th Cir. 2025) (“To determine whether evidence is sufficient to uphold a conviction, ‘we examine, in the light most favorable to the government, all of the evidence together with the reasonable inferences to be drawn therefrom and ask whether any rational juror could have found the essential elements of the crime beyond a reasonable doubt.’” (quoting United States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir. 1993)); United States v. Flechs, 98 F.4th 1235, 1241 n.1 (10th Cir.) (“This factual summary derives from the evidence presented at trial.”), cert. denied, 145 S. Ct. 310 (2024); United States v. Pursley, 577 F.3d 1204, 1210 n.2 (10th Cir. 2009) (“We recount the facts in the light most favorable to the government. [Defendant] does not challenge the sufficiency of the evidence to support his conviction for the charged crimes.” (citation omitted)).

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of petroleum diesel; it is approximately 99 percent biofuel. See generally United

States v. Wilson, 879 F.3d 795, 798–99 (7th Cir. 2018).

Mr. Dermen, Jacob Kingston, and their co-conspirators targeted two federal

biofuel incentive programs in their fraud scheme. The first was an IRS tax credit. At

all times relevant here, Congress intermittently authorized a federal tax credit.

Specifically, the federal government incentivized biodiesel production by providing a

tax credit for every gallon of B100 that was blended to form B99. See Lynn J.

Cunningham et al., Cong. Rsch. Serv., R42566, Alternative Fuel and Advanced

Vehicle Technology Incentives: A Summary of Federal Programs, 3, 11 (Sept. 13,

2021). Taxpayers could claim the tax credit with the IRS. See id.

The second biofuel incentive was an EPA incentive system of tradeable

credits—called RINs—that was a component of the EPA’s Renewable Fuel Standard

(“RFS”). See Kelsi Bracmort, Cong. Rsch. Serv., R43325, The Renewable Fuel

Standard (RFS): An Overview, 1–2, 4 (Sept. 4, 2019). The RFS was established by

the Energy Policy Act of 2005. See id. at 2. The RFS mandate requires that

transportation fuels sold or introduced into commerce in the United States contain an

increasing volume of renewable fuels. See id. at 2–3. The EPA regulates compliance

with the RFS using RINs. See id. at 4. RINs are attached to each gallon of

qualifying renewable fuel once that fuel is produced and are ultimately used to

demonstrate compliance with the RFS. See id. at 4–5. Biofuel producers may

comply with the RFS’s mandate either by producing compliant fuel inventory or

purchasing RINs. See id. at 5. Thus, RINs carry independent economic value from

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the renewable fuel from which they are generated—they may be bought and sold on

the open market so that large oil producers can comply with regulatory targets set by

the EPA. See id.

2.

Although Mr. Dermen ultimately played an instrumental role in the

conspiracy, the record shows that Jacob Kingston originally designed the biofuel

incentive fraud scheme. After completing his PhD at the University of Utah in 2006,

Jacob Kingston started Washakie Renewable Energy (“Washakie”) with his wife, his

brother—Isaiah Kingston—and various other family members.

Washakie obtained IRS and EPA licenses to apply for biofuel tax credits and

RINs, and the Kingstons created another company, United Fuel Supply, to market

Washakie’s fuel. From 2007 to 2009, Washakie struggled to get off the ground as a

legitimate biofuel business. In 2010, Jacob Kingston, Isaiah Kingston, and several of

their family members began the conspiracy to fraudulently claim biofuel tax credits

and RINs from the EPA and the IRS, supported by false paperwork. From 2010 to

2011, Washakie filed twenty false claims for biofuel tax credits, and received

approximately $40 million in fraudulent proceeds from the IRS.

Mr. Dermen met Jacob Kingston in December 2011, when Jacob flew to

California to finalize a biofuel deal. Mr. Dermen owned several biofuel-related

businesses in California, including a fuel distribution company, Noil Energy

(“Noil”), and a trucking company, Lion Tank Lines. Mr. Dermen told Jacob

Kingston that he could buy all the fuel Washakie could produce and placed an initial

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order for 1.3 million gallons of B99. In January 2012, Mr. Dermen travelled to Utah

to tour the Washakie plant. Shortly after that trip, a deal that Jacob Kingston had

orchestrated fell through, requiring him to ship an inventory of B99 from India to

Long Beach, California.

Mr. Dermen agreed to purchase the excess Indian B99 from Jacob Kingston

and, with Jacob Kingston’s acquiescence, orchestrated the first of many schemes to

fraudulently claim RINs on the B99 by “rotating” it through the Washakie plant.

Specifically, after the inventory arrived in Long Beach, California, Mr. Dermen and

Jacob Kingston “rotated” it by the following steps: falsifying paperwork to make it

appear that the inventory was feedstock—not fully processed B99, trucking the

mislabeled inventory to the Washakie plant, falsely “processing” the inventory from

feedstock to B99 (while, in fact, doing nothing to alter the composition of the

already-marketable B99), and then trucking the relabeled inventory back to Mr.

Dermen’s companies in California. Then, Mr. Dermen and Jacob Kingston used the

fabricated “processing” paperwork to claim RINs on the inventory.

3.

From 2012 to 2018, Mr. Dermen, Jacob Kingston, and their other co-

conspirators built upon the initial “Indian scheme” and orchestrated a robust

conspiracy to defraud the federal government in which they operated an international

collection of entities to simulate biofuel production and distribution, filed false

claims for federal biofuel incentives with the IRS and EPA, received payouts from

the Department of Treasury, and laundered the fraud proceeds. At the heart of the

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conspiracy were two basic fraud schemes: (1) generating false RINs through the EPA

by “rotating” biofuel, and (2) filing false claims with the IRS for biofuel production

tax credits.

i.

Mr. Dermen, Jacob Kingston, and their co-conspirators claimed false RINs by

“rotating” biofuel. Akin to the “Indian scheme,” the “rotations” were orchestrated

by: purchasing processed biofuel (i.e., B99 or B100) from a biofuel producer;

mislabeling the inventory as unprocessed biofuel or feedstock; transporting the

inventory through various entities to create the appearance of a supply or distribution

chain; claiming to “process” the already-processed biofuel at the Washakie plant;

generating false invoices and other paperwork at each step of the process; using the

false paperwork to generate false RINs; and then reselling the “processed” biofuel on

the market or, at steep discounts, to Mr. Dermen’s companies in California.

Indeed, the Kingstons funneled payments to Mr. Dermen at each step of the

“rotation” process through a variety of fraudulent means, including: fabricating fees

for shipping, storage, and other expenses; providing steep discounts on biofuel sales;

conducting various exchanges of checks for cash; creating false contracts and paying

fraudulent invoices between Mr. Dermen’s and the Kingstons’ businesses, including

Noil, Washakie, and United Fuel Supply; and paying sales fees for the fraudulent

RINs.

Mr. Dermen and Jacob Kingston orchestrated several RIN frauds using

variations on this biofuel “rotation” model in 2012. And from 2013 through early

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2016, as Mr. Dermen and Jacob Kingston continued to “rotate” biodiesel, they also

“cycled” funds—that is, they moved funds between Mr. Dermen’s and Jacob’s

companies, thus simulating biodiesel purchases, processing, and sales—in order to

claim RINs multiple times on the same underlying fuel.

ii.

The second fraud scheme was filing false claims for biofuel tax credits with

the IRS using false paperwork generated by the conspirators’ biofuel “rotations.”

The Kingstons began this fraud in 2010, before Jacob Kingston met Mr. Dermen.

And Mr. Dermen and Jacob Kingston began filing false biofuel tax credit claims in

2013. For example, in February of 2013, Washakie filed a claim for $3.9 million,

which falsely stated that Washakie had sold 2.9 million gallons of biodiesel to Noil in

2012. The IRS paid the claim by check through the mail in full in March, and Jacob

flew to California in April to deliver Mr. Dermen’s share of the fraud proceeds: a

$1.3 million check. The conspirators gradually increased their false claim amounts

over the course of 2013. In sum, the IRS paid the conspirators through the mail

approximately $250 million on the fraudulent claims they filed through Washakie in

2013, which were based on false paperwork generated by their biofuel “rotations.”

In total, from 2010 to 2016, Washakie filed over $1 billion in false claims and

received over $500 million in fraudulent tax credits. And Washakie received nearly

$400 million of that total from the IRS through the mail between 2012 and 2016,

during which time Mr. Dermen was an orchestrator of the conspiracy.

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4.

Mr. Dermen, Jacob, and their co-conspirators laundered fraud proceeds

through a variety of methods, including by cycling funds through various businesses

and accounts, purchasing homes and cars, and transferring funds abroad. The

following money laundering conduct relates to Mr. Dermen’s convictions on Counts

3–10.

The conduct charged in Counts 3–7 occurred in June 2013, when Mr. Dermen

laundered fraud proceeds by purchasing a debt owed by his friend, Zubair Kazi. Mr.

Dermen purchased the debt by directing Jacob Kingston to pay an $11.2 million loan

owed by Mr. Kazi to G.E. Capital, Mr. Kazi’s creditor. On June 21, 2013, Jacob

Kingston wired approximately $11.2 million in fraud proceeds from Washakie to

G.E. Capital. Then, Mr. Dermen instructed Mr. Kazi to repay him, not Washakie,

and secured the debt with liens on several of Mr. Kazi’s properties. Through several

transactions and a lawsuit, Mr. Kazi repaid Mr. Dermen $2 million in deposits to a

joint account that he had opened with Mr. Dermen, and $1.3 million in installments

to Mr. Dermen’s company, SBK Holding USA (“SBK USA”).

In January 2013, Mr. Dermen and Jacob Kingston purchased a house in Sandy,

Utah using fraud proceeds. This conduct is the subject of money laundering Count 8.

Laundering fraud proceeds through this real property transaction was a three-step

process. First, Jacob wrote a $3 million check to Noil (one of Mr. Dermen’s

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companies) on June 5, 2015, from a Merrill Lynch loan account in his name. The

collateral for this loan account was $15 million in fraud proceeds that Jacob had

transferred from a Washakie account to another Merrill Lynch account he controlled.

Second, Jacob repaid the $3 million Merrill Lynch loan with fraud proceeds from

Washakie. Third, Jacob made a $3.1 million offer on a house in Sandy, Utah, which

was to be financed by Noil using the $3 million that Jacob had paid the company

using the check. The offer was accepted, and the sale was finalized: the home

purchase contract listed Noil as the buyer, and the house was titled in Jacob

Kingston’s name. At closing, Mr. Dermen wired the $3.1 million purchase price to

the title company from the Noil account into which Jacob’s check had been

deposited.

iii.

Beginning in 2013, Mr. Dermen directed Jacob Kingston to send a total of

$115 million in fraud proceeds to various accounts in Turkey and Luxembourg. For

example, in March 2014, Mr. Dermen instructed Jacob to wire $483,000 from

Washakie to an account Mr. Dermen controlled at Garanti Bank, Turkey. This 2014

wire is the offense conduct underpinning Count 9.

iv.

In 2015, Mr. Dermen and Jacob Kingston used fraud proceeds to purchase a

house for Mr. Dermen in Huntington Beach, California. This conduct is the basis for

money laundering Count 10. This time, the money laundering was a four-step

process. First, on March 4, 2015, Mr. Dermen instructed Jacob to wire $50,000 from

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Washakie to Versal Settlement Services, a title company, to pay a deposit on the

house. The $50,000 wire was traced to fraud proceeds. Second, on March 19, at

Jacob’s direction, Isaiah Kingston wired $8.55 million to an SBK USA account. This

$8.55 million wire was also traced to fraud proceeds. Third, Mr. Dermen then

transferred $3.5 million from that account to a second SBK USA account. Fourth,

Mr. Dermen wired a little over $3.5 million from the second SBK USA account to the

settlement company, Versal. The closing documents listed the buyer as “Gilbert

Island Property LLC,” an entity that was jointly owned by Mr. Dermen and his

brother, Grigor, and that they created shortly before the purchase.

B. Procedural History

Mr. Dermen was indicted by a grand jury in Utah federal court on January 17,

2019, for his role in the biofuel tax incentive fraud conspiracy, money laundering

conspiracy, and money laundering. Specifically, the indictment—which was

renumbered in a later filing—charged Mr. Dermen with ten counts: Count 1 charged

Conspiracy to Commit Mail Fraud, in violation of 18 U.S.C. §§ 1341 and 1349;

Count 2 charged Conspiracy to Commit Money Laundering Offenses, in violation of

18 U.S.C. § 1956(h); Counts 3–8 charged Money Laundering, in violation of 18

U.S.C. § 1956(a)(1)(B)(i); and Count 9–10 charged Money Laundering, in violation

of 18 U.S.C. § 1957. In 2019, Jacob and Isaiah Kingston—who initially had been

charged with conspiracy-related offenses in the same indictment—pleaded guilty and

agreed to cooperate with the government, including by testifying against Mr. Dermen

at trial.

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Before trial, Mr. Dermen moved for discovery relating to one of his associates,

Edgar Sargsyan, a potential defense witness, and, during trial, he moved for

discovery of Mr. Sargsyan’s sealed plea agreement. The district court denied these

motions, and Mr. Dermen did not call Mr. Sargsyan as a witness at trial.

Mr. Dermen’s seven-week trial began on January 27, 2020. On February 28,

during the fifth week of trial, Mr. Dermen moved for a mistrial based on alleged juror

misconduct and exposure to extraneous information. After investigating the alleged

extraneous information and juror misconduct, the district court denied Mr. Dermen’s

motion.

The jury began deliberating on Thursday, March 12, 2020, took Friday off, and

resumed deliberations on the following Monday, March 16. Over the weekend, Mr.

Dermen again moved for a mistrial, this time based on prejudice that he allegedly

suffered from the trial taking place during the onset of the COVID-19 pandemic. The

jury convicted Mr. Dermen on all counts on Monday, March 16, 2020, and the

district court denied Mr. Dermen’s second mistrial motion.

On April 7, Mr. Dermen moved for a judgment of acquittal or, in the

alternative, for a new trial, based on the alleged insufficiency of the evidence on all

counts under Rules 29 and 33 of the Federal Rules of Criminal Procedure. Mr.

Dermen also filed a supplemental motion for a new trial pursuant to Rule 33, alleging

a discovery violation under Brady v. Maryland, 373 U.S. 83 (1963). The court

denied Mr. Dermen’s Rules 29 and 33 motions.

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The district court held a bench trial on the issue of forfeiture in November

2021, made findings, and issued a preliminary order of forfeiture.

Finally, on April 7, 2023, the district court sentenced Mr. Dermen to 480

months’ incarceration, ordered him to pay $442.6 million in restitution to the IRS,

and adopted the preliminary order of forfeiture as final.

II. DISCUSSION

Mr. Dermen timely filed this appeal and raises seven separate issues—five

challenges to his convictions and two to his sentence. First, he argues that the district

court erred by failing to grant his motion for mistrial based on prejudicial juror

misconduct and exposure to extraneous information. Second, he maintains that the

district court erred by failing to grant his motion for a mistrial based on COVID-19.

Third, he contends that the district court erroneously denied his motion for a new trial

under Brady v. Maryland, 373 U.S. 83 (1963). More specifically, Mr. Dermen

alleges that the government violated Brady by failing to produce evidence concerning

a government witness and another individual.

Fourth, Mr. Dermen argues that the district court erred by admitting improper

expert testimony in the guise of summary testimony. Fifth, he asserts that there was

insufficient evidence to sustain five of his money laundering convictions. Sixth, Mr.

Dermen contends that the district court improperly calculated his sentence. And

seventh, he challenges the forfeiture and money judgment ordered against him on

substantive and procedural grounds.

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We consider each challenge in turn. On each challenge, we ultimately

conclude that Mr. Dermen’s arguments are without merit and, therefore, decline to

disturb the district court’s rulings.

A. Alleged Juror Misconduct and Exposure to Extraneous Information

We begin our analysis with Mr. Dermen’s argument that the district court

erred by failing to grant his motion for mistrial based on juror misconduct and

exposure to extraneous information. We find Mr. Dermen’s arguments unpersuasive.

We review the district court’s denial of a mistrial motion for abuse of

discretion. See United States v. Lawrence, 405 F.3d 888, 903 (10th Cir. 2005). The

court’s factual findings are reviewed for clear error; its legal findings are reviewed de

novo. See, e.g., Gonzales v. Thomas, 99 F.3d 978, 986 (10th Cir. 1996).

The Sixth Amendment guarantees a criminal defendant “the right to a . . .

public trial[] by an impartial jury.” U.S. Const. amend. VI; see also Tanner v. United

States, 483 U.S. 107, 126 (1987) (“[A] defendant has a right to ‘a tribunal both

impartial and mentally competent to afford a hearing.’” (quoting Jordan v.

Massachusetts, 225 U.S. 167, 176 (1912)). But “due process does not require a new

trial every time a juror has been placed in a potentially compromising situation,”

Smith v. Phillips, 455 U.S. 209, 217 (1982); “[t]he Constitution guarantees a

defendant a fair trial, not a perfect one,” United States v. McHorse, 179 F.3d 889,

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904 (10th Cir. 1999). “Due process means a jury capable and willing to decide the

case solely on the evidence before it, and a trial judge ever watchful to prevent

prejudicial occurrences and to determine the effect of such occurrences when they

happen.” Smith, 455 U.S. at 217.

Mr. Dermen argues that his right to an impartial jury was violated by exposure

to prejudicial extraneous information and juror misconduct. Although juror exposure

to extraneous information and juror bias both present due process concerns, the legal

standard for each scenario is distinct. Therefore, we review both standards at the

outset to lay a foundation for our analysis of Mr. Dermen’s position on appeal.

We begin with extraneous information. A jury’s exposure to extraneous

information may result in a mistrial, but it need not in every case. Compare Mayhue

v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 924–26 (10th Cir. 1992)

(affirming the district court’s decision to grant a motion for a new trial where at least

four members of the jury were found to be in possession of two dictionary definitions

that constituted evidence not offered at trial), with United States v. Lawrence, 405

F.3d 888, 896, 904 (10th Cir. 2005) (affirming the district court’s decision to deny a

mistrial motion where a pamphlet about jury nullification was found in the jury room

but jurors indicated that the pamphlet would not influence their deliberations and the

court issued a curative jury instruction). Whether a jury’s exposure to extraneous

information warrants a mistrial is a fact-intensive inquiry that turns on whether the

jury’s exposure can be said to have caused prejudice to the defendant. See Smith v.

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Ingersoll-Rand Co., 214 F.3d 1235, 1241–43 (10th Cir. 2000); Mayhue, 969 F.2d at

924–26; Lawrence, 405 F.3d at 904.

“When a trial court is apprised of the fact that an extrinsic influence may have

tainted the trial, the proper remedy is a hearing to determine the circumstances of the

improper contact and the extent of the prejudice, if any, to the defendant.” United

States v. Scull, 321 F.3d 1270, 1280 (10th Cir. 2003) (quoting United States v.

Hornung, 848 F.2d 1040, 1045 (10th Cir. 1988)); see also Ingersoll-Rand, 214 F.3d

at 1242 (“When it learned of the presence of extraneous evidence in the jury room

during deliberations, the trial court notified the parties, and as the law of this circuit

requires, held hearings to determine the extent of the improper contact.”); cf. Remmer

v. United States, 347 U.S. 227, 228, 230 (1954) (remanding to the district court with

instructions to hold a hearing to determine whether an improper outside contact of a

juror was harmful to the petitioner, and if after conducting the hearing the court were

to find the incident to have been harmful, to grant a new trial).

In Hornung, we outlined a hearing process for examining the impact of

extraneous information on the fairness of a trial, based on the hearing process set

forth by the Supreme Court in Remmer:

When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the proper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant. . . . The court’s questioning of a juror who is the recipient of extraneous information is limited to the circumstances and nature of the improper contact . . . . Accordingly, an objective test should be applied in making an assessment of whether the defendant was prejudiced by the extraneous information. The court “should

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assess the ‘possibility of prejudice’ by reviewing the entire record, analyzing the substance of the extrinsic evidence, and comparing it to that information of which the jurors were properly aware.”

Hornung, 848 F.2d at 1045 (citing, inter alia, Remmer, 347 U.S. at 229–30)

(additional citations omitted) (quoting United States v. Weiss, 752 F.2d 777, 783 (2d

Cir. 1985)). As we have noted in past decisions, “[t]his evidentiary hearing [process]

is often called a ‘Remmer hearing.’” Stouffer v. Trammell (“Stouffer I”), 738 F.3d

1205, 1214 (10th Cir. 2013). In a Remmer hearing, the trial judge’s evaluation of the

impact of extraneous information is entitled to great weight because the trial judge

“has the advantages of close observation of the jurors and intimate familiarity with

the issues at trial,” Ingersoll-Rand, 214 F.3d at 1242 (quoting Mayhue, 969 F.2d at

922), and is thus “uniquely able to assess the likelihood that the extraneous

information was prejudicial,” Mayhue, 969 F.2d at 922.

Our circuit has “developed two different standards by which a trial judge is to

assess the impact of exposure to extraneous material on a jury.” Ingersoll-Rand, 214

F.3d at 1241; accord United States v. Muessig, 427 F.3d 856, 865 (10th Cir. 2005)

(quoting Ingersoll-Rand, 214 F.3d at 1241); United States v. Daniels, 755 F. App’x

796, 800 (10th Cir. 2018) (quoting Muessig, 427 F.3d at 865).2 “Under the first

standard, a new trial is appropriate if the ‘slightest possibility’ exists that the

exposure to extraneous material affected the verdict.” Muessig, 427 F.3d at 865

2 We rely on unpublished cases herein for their persuasive value only and do not treat them as binding precedent. See United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015).

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(quoting Ingersoll-Rand, 214 F.3d at 1241). By contrast, the second standard

instructs that “jury exposure to extraneous information creates a ‘presumption of

prejudice’ which may be rebutted by showing the exposure was harmless.”

Ingersoll-Rand, 214 F.3d at 1241. “The difference between the two standards lies in

which party has the initial burden of proof.” Muessig, 427 F.3d at 865. The

“slightest possibility” approach places the burden of showing prejudice on the

movant, whereas the “presumption of prejudice” approach “forces the nonmovant to

prove any exposure was harmless.” Ingersoll–Rand, 214 F.3d at 1241–42.

“Under either standard, we review the district court’s determination for an

abuse of discretion, reversing only where the decision was ‘arbitrary, capricious,

whimsical, or manifestly unreasonable.’” Id. at 1242 (quoting United States v.

Byrne, 171 F.3d 1231, 1235 (10th Cir. 1999)). Similarly, under either standard,

where exposure is harmless, “we [] need not resolve these different approaches.”3

Muessig, 427 F.3d at 865; see also Ingersoll-Rand, 214 F.3d at 1242 (holding that the

defendant-appellant “was not harmed by the presence of the extrinsic material in the

jury room regardless of which standard is applied”); Daniels, 755 F. App’x at 800

(“We need not decide which standard to apply in this case because under either

standard, the extraneous information was harmless.”).

3 Moreover, as we explained in Ingersoll-Rand, “precise resolution” of the question of which approach is controlling—that is, the “slightest possibility” or the “presumption of prejudice” approach—would “require[] adopting one standard to the foreclosure of the other, an act which may only be undertaken by this court sitting en banc.” 214 F.3d at 1242. 19 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 20

The Supreme Court declared in Chapman v. California, 386 U.S. 18 (1967),

that “before a federal constitutional error can be held harmless, the court must be able

to declare a belief that it was harmless beyond a reasonable doubt.” Id. at 24. We

have not consistently applied this standard in cases concerning juror exposure to

extraneous information, however. Several of our decisions explicitly apply the

“reasonable doubt” standard. See United States v. Thompson, 908 F.2d 648, 653

(10th Cir. 1990), opinion modified on reh’g (Oct. 10, 1990) (“In applying harmless

error analysis, we must ask ourselves whether we can ‘declare a belief that [the error]

was harmless beyond a reasonable doubt.’ Specifically, . . . an error is harmless if

[its] beneficiary . . . can prove beyond a reasonable doubt that it did not contribute to

the verdict.” (quoting Chapman, 386 U.S. at 24)); United States v. Davis, 60 F.3d

1479, 1485 (10th Cir. 1995) (“In order to conclude the exposure was harmless, in the

context of this direct appeal, ‘we must ask ourselves whether we can declare a belief

that [the error] was harmless beyond a reasonable doubt.’” (alteration in original)

(quoting Thompson, 908 F.2d at 653)); United States v. Morales, 108 F.3d 1213,

1222 (10th Cir. 1997) (concluding that “the jury’s misconduct in researching the

dictionary definition of [‘]distribution[’] was harmless to [the defendant] beyond a

reasonable doubt”). However, Hornung and Mayhue do not refer to the “reasonable

doubt” standard in assessing the harmlessness of juror exposure to extraneous

information. See Hornung, 848 F.2d at 1044–46; Mayhue, 969 F.2d at 923. In light

of this uncertainty, the district court applied the “reasonable doubt” standard, and,

out of an abundance of caution, we do the same on appeal.

20 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 21

We turn next to the legal standards governing the judicial response to juror

misconduct. “There are two broad areas of juror misconduct claims. One involves

that of juror bias, the other that of improper juror contacts.” United States v. Day,

830 F.2d 1099, 1103 (10th Cir. 1987). “Both are at the core of the Sixth

Amendment’s right to a trial by an impartial jury, free from prejudicial contact.” Id.

Mr. Dermen argues, as relevant here, that the district court abused its discretion by

failing to award a mistrial based on a finding of juror bias. See Aplt.’s Opening Br.

at 33–39.

Our law contemplates two types of juror bias: actual and implied. Actual bias

is a “[g]enuine prejudice that a . . . juror . . . has against some person or relevant

subject.” Bias, BLACK’S LAW DICTIONARY (12th ed. 2024). “Actual bias may be

shown either by a juror’s express admission, or by proof of specific facts which show

the juror has such a close connection to the facts at trial that bias is presumed.”

Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1467 (10th Cir. 1994). “The district

judge is entitled to rely upon its self-evaluations of allegedly biased jurors in

determining actual juror bias.” United States v. Wacker, 72 F.3d 1453, 1467 (10th

Cir. 1995), modified (Mar. 11, 1996); accord Day, 830 F.2d at 1105 (citing Smith,

455 U.S. at 217 n.7). “Whether a juror was actually biased is a factual question we

review only for clear error.” Gonzales, 99 F.3d at 986.

Implied bias—also termed “inherent bias” in some authority, see Lawrence,

405 F.3d at 903—is “[b]ias, as of a juror, that the law conclusively presumes because

21 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 22

of kinship or some other incurably close relationship” or “prejudice that is inferred

from the experiences or relationships of a . . . juror.” Bias, BLACK’S LAW

DICTIONARY (12th ed. 2024). “Whether implied bias exists in a juror is a legal

determination that turns on an objective evaluation of the challenged juror’s

experiences and their relation to the case being tried.” Gonzales, 99 F.3d at 987

(citation omitted). “Thus, implied bias may be found even though a juror denies any

partiality.” Id. “Though a juror might honestly believe she can be impartial, she

nevertheless may have ‘such a close connection to the circumstances at hand that bias

must be presumed.’” Id. (quoting United States v. Scott, 854 F.2d 697, 699 (5th Cir.

1988)). “Whether a juror was impliedly biased is a legal question we review de

novo.” Id. at 986.

Importantly, our cases make clear that “[t]he implied bias doctrine should not

be invoked lightly.” Id. “[S]ituations that would support a finding of implied bias

‘might include a revelation that the juror is an actual employee of the prosecuting

agency, that the juror is a close relative of one of the participants in the trial or the

criminal transaction, or that the juror was a witness or somehow involved in the

criminal transaction.’” Id. (quoting Smith v. Phillips, 455 U.S. 209, 222 (1982)

(O’Connor, J., concurring)).

In Remmer, the Supreme Court articulated the hearing procedure for

addressing potential juror misconduct involving improper outside contact with jurors

during deliberations. See 347 U.S. at 228–30. There, a juror was told by an unnamed

person that “he could profit by bringing in a verdict favorable to the petitioner.” Id.

22 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 23

at 228. Subsequently, in Smith v. Phillips, 455 U.S. 209 (1982), the Supreme Court

held that the “the remedy for allegations of juror partiality is a [Remmer] hearing in

which the defendant has the opportunity to prove actual bias,” Smith, 455 U.S. at

215, and the “trial judge . . . determine[s] the effect of [any prejudicial] occurrences,”

id. at 217. Thus, the Remmer hearing framework applies both to allegations of

improper exposure to extraneous information and juror bias.

Notably, in Remmer, the Court signaled that the “presumption of prejudice”

approach applies to findings of improper juror contacts. See 347 U.S. at 229 (“In a

criminal case, any private communication, contact, or tampering directly or

indirectly, with a juror during a trial about the matter pending before the jury is, for

obvious reasons, deemed presumptively prejudicial[.]”); see also Hornung, 848 F.2d

at 1044–45 (applying Remmer’s “presumption of prejudice” approach in analyzing

the effect of an improper juror contact); Day, 830 F.2d at 1105–06 (same).

However, in United States v. Wacker, 72 F.3d 1453 (10th Cir. 1995), we

expressed “uncertain[ty] that the presumption of prejudice called forth in Remmer,

Hornung and Day would apply to communications among venirepersons, as opposed

to communications from outside sources.” Id. at 1466. Because “we [were]

persuaded that appellants were not prejudiced,” we did not expressly resolve the

issue. Id. However, instead of applying the presumption of prejudice, we held that

when conversations among venirepersons are alleged to show prejudicial bias, “the

test of juror impartiality is whether ‘the juror can lay aside his impression or opinion

23 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 24

and render a verdict based on the evidence presented in court.’” Id. at 1467 (quoting

Irvin v. Dowd, 366 U.S. 717, 723 (1961)).

We have similar doubts that the presumption of prejudice applies to the juror

bias inquiry after jury selection is complete. Although the Supreme Court in Smith

applied the Remmer hearing procedure to the juror bias inquiry, it did not expressly

apply the presumption of prejudice to the actual bias inquiry presented in Smith; the

Court held only that prejudice determinations “may properly be made at a hearing

like that ordered in Remmer.” Smith, 455 U.S. at 217. And in Lawrence and

McHorse, we stopped short of applying the presumption of prejudice to the juror bias

inquiry, and instead we explained only that “the appropriate test is whether actual

bias existed or whether the circumstances compel an imputation of inherent bias to

the juror as a matter of law such that the misconduct has prejudiced the defendant to

the extent that he has not received a fair trial.” Lawrence, 405 F.3d at 903 (emphasis

added); see McHorse, 179 F.3d at 904 (“The test is whether . . . the misconduct has

prejudiced the defendant to the extent that he has not received a fair trial.” (omission

in original) (quoting United States v. Jones, 707 F.2d 1169, 1173 (10th Cir. 1983))).

Both Lawrence and McHorse concerned juror bias inquiries stemming from

conversations between jurors during trial—after the jury was selected and before the

jury retired to deliberate. See Lawrence, 405 F.3d at 895 (considering potential juror

bias where, inter alia, a deputy clerk overheard a juror state, “I have already made up

my mind, I don’t know what the other side could say [to change it]” (alteration in

original)); McHorse, 179 F.3d at 903 (considering potential juror bias where a

24 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 25

witness overheard one juror state to another in a restroom, “I’m a school teacher. I’m

very disturbed about what I’m hearing”). Because Lawrence and McHorse are

directly on point, we adopt their test for prejudice in resolving Mr. Dermen’s

challenge here. Thus, in a situation involving juror bias, “the appropriate test is [1]

whether actual bias existed or [2] whether the circumstances compel an imputation of

inherent bias to the juror as a matter of law[,] such that the misconduct has

prejudiced the defendant to the extent that he has not received a fair trial.”

Lawrence, 405 F.3d at 903. As in the exposure-to-extraneous-information inquiry,

“not every incident [involving bias] requires a new trial”; instead, the test asks

“whether . . . the misconduct has prejudiced the defendant to the extent that he has

not received a fair trial.” Id. at 904 (quoting McHorse, 179 F.3d at 904) (alteration

and omission in original)).

v.

Finally, a district court may employ a curative jury instruction to ameliorate

the risk of prejudice. See Wacker, 72 F.3d at 1467 (“[E]ven if there were some risk

of prejudice, here it is of the type that can be cured with proper instructions, and

juries are presumed to follow their instructions.” (quoting Zafiro v. United States,

506 U.S. 534, 540 (1993))); Lawrence, 405 F.3d at 904 (holding that “the district

court’s strongly worded cautionary instruction was an appropriate response” to juror

misconduct and exposure to extraneous information).

25 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 26

On February 25, 2020—during the fifth week of trial, more than two weeks

before the jury began deliberating on March 12, 2020—the district court was

informed by members of the U.S. Marshals Service (“USMS”) that a Court Security

Officer (“CSO”) had overheard two jurors discussing what seemed to be extraneous

information related to the trial following the conclusion of proceedings the prior day.

The CSO later testified that he heard Juror 6 say to an unidentified juror, “he’s the

one who got Michael Jackson off,” Aplt.’s App., Vol. VII, at 1427 (Suppl. Order

Regarding Def.’s Mot. for Mistrial, filed Mar. 26, 2020), and assumed that the jurors

were discussing and researching Mr. Dermen’s counsel at trial, Mark Geragos.

Although the CSO did not hear Mr. Geragos mentioned by name, the CSO believed

that Mr. Geragos had represented Michael Jackson in a trial. As the district court

explained in a subsequent order, “Mr. Geragos is a well-known attorney who

regularly appears on television and other media outlets.” Id. at 1419 n.14.

The district court promptly relayed the information from the USMS to the

parties, before the jurors were called into the courtroom, and paused trial proceedings

to investigate the matter. The court first called the USMS representative to the front

of the courtroom to make a record regarding the report. The parties were present for

his interview, but the jury was not recalled. The USMS representative informed the

court the CSO “overheard [Juror 6] saying Mr. Geragos represented Michael Jackson

and for every count that he was dismissed on they released doves at the courthouse.”

Id. at 1413. Based on the USMS representative’s testimony, the district court

26 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 27

terminated the presentation of evidence for the day and proceeded to voir dire each of

the jurors “to find out what each juror may have heard regarding this conversation,

and if they had been exposed to any extraneous information that might jeopardize

their impartiality.” Id. at 1414. During the course of its investigation, the district

court did the following: conducted a voir dire of each juror and heard testimony from

the CSO on February 25; interviewed Jurors 6 and 16 individually and conducted a

second voir dire of each juror and a second interview with the CSO on February 27;

and interviewed Jurors 3 and 6 individually on March 2. We describe the district

court’s findings from each stage of the investigation below.

The district court conducted the first voir dire on February 25, 2020, after

receiving the USMS representative’s summary of the CSO’s report. Before the voir

dire process began, the court brought all members of the jury into the courtroom and

explained that “it came to [the court’s] attention that one or more of you may have

been exposed to information about the case that was not coming through exhibits or

from the witness stand.” Aplt.’s App., Vol. XXVII, at 6533 (Jury Trial Tr., held Feb.

25, 2020). The court emphasized its “absolute obligation” to ensure that the jury is

“fair and impartial,” and that the jury “decides the case only on the evidence that has

been presented.” Id. Pursuant to that obligation, the court interviewed each juror—

individually, in open court, and in the presence of the parties but without the other

jurors present—and inquired as to whether they had overheard or participated in any

discussions relating to case-related information from outside sources. While each

27 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 28

juror was interviewed individually, the other jurors waited in the jury room. The

court instructed the jury not to discuss the interviews in the jury room or to

“speculate on what’s happening or who’s involved.” Id. at 6534.

The district court uncovered information relevant to the CSO’s report from

Jurors 6 and 16 during the first voir dire. Pursuant to the CSO’s report, the court

asked Juror 6—the juror identified by the CSO as having made the Michael Jackson

comment—whether she was familiar with any of the attorneys of record, both in

general terms and with respect to each attorney, individually. Juror 6 denied any

such knowledge, including knowledge of the attorneys’ professional histories or

previous clients. She stated that she had not discussed the attorneys with other

jurors, aside from “remarks just about like funny things that have happened.” Id. at

6542. Juror 6 also denied conducting outside research about the attorneys.

Juror 16, by contrast, stated that she “did hear one of the lawyers represented

other clients”; “[s]omeone said that [Mr. Geragos] represented Michael Jackson.” Id.

at 6562–63. Juror 16 stated that she had heard this comment “recently, like maybe a

week and a half” prior, id. at 6563, and that the comment was uttered “in the hallway

as we were like waiting or going in or out or something like that,” id. at 6564.

However, Juror 16 did not recall which juror was the source of the information.

Separately, the district court learned that Juror 11 had recently seen Mr.

Geragos on television and promptly changed the channel; he informed the court that

he had told Jurors 7 and 15 about the incident. Juror 7 confirmed that Juror 11 had

mentioned that Mr. Geragos represented high profile defendants in California,

28 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 29

including Scott Peterson and Winona Ryder. When Juror 15 was interviewed, she

confirmed the incident.

According to the district court’s findings of fact, “[n]one of the other

interviews with jurors yielded any information about conversations that would

indicate exposure to outside material.” Aplt.’s App., Vol. VII, at 1417.

Following the first voir dire, the district court heard testimony from the CSO.

The court asked the CSO questions and provided the attorneys the opportunity to ask

questions as well, all out of the presence of the jury. The CSO testified that he was

present in the hallway the afternoon prior, while the jurors were waiting for

transportation. There, he overheard a conversation between two jurors: he heard one

juror say, “he’s the one that got Michael Jackson off,” and another female juror

respond, “Oh, I remember that. People outside the courtroom released white doves

every time there was an acquittal.” Aplt.’s App., Vol. XXVII, at 6567. The CSO

also testified that the second juror said that her husband wished he could have been

there to shoot the doves as they were released. The CSO’s description of the first

juror was consistent with the appearance of Juror 6, and, subsequently, the CSO

identified the second juror as Juror 16.4

4 Ultimately, the district court would determine that the CSO was mistaken: Juror 3—not Juror 16—was the second participant in the conversation. 29 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 30

Based on the jurors’ testimony at the first voir dire, the district court shared

with the parties its initial impression that Jurors 6 and 16 had been involved in the

Michael Jackson conversation that the CSO had reported and that they had not been

forthcoming about the incident during questioning. Therefore, the court informed the

parties of its inclination to remove Jurors 6 and 16.

Separately, the court surmised that Jurors 7, 11, and 15 had been forthcoming

about Juror 11’s exposure to Mr. Geragos on a television program and the subsequent

conversation about the episode. The court also noted that Juror 11 had appropriately

turned off the television program when confronted with potentially extraneous

information involving Mr. Geragos. After stating these preliminary findings, the

court granted defense counsel’s request to adjourn for the day to confer with his

client.

The following day, February 26, 2020, Mr. Dermen moved for a mistrial and a

newly empaneled jury based on jury misconduct. Mr. Dermen argued that a mistrial

was warranted because Jurors 6 and 16 had been “deceptive” in their testimony and

because the “group” conversation described by the CSO was both prejudicial and

indicative that jurors may have been contaminated by extraneous information.5

5 In a subsequent order, the district court further characterized Mr. Dermen’s position related to Mr. Geragos’s prior representation as follows:

30 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 31

Aplt.’s App., Vol. VI, at 1268 (Def.’s Position Regarding Jury Misconduct, filed Feb.

26, 2020). Mr. Dermen also argued that the conversation between Jurors 7, 11, and

15 indicated that Juror 11 may have known of Mr. Geragos before the trial. The

government opposed the motion, contending that any potential juror misconduct

could be remedied by removing Jurors 6 and 16.

On February 27, 2020, the district court heard oral argument on Mr. Dermen’s

motion for a mistrial, after which the court denied the motion and issued a ruling

from the bench that Jurors 6 and 16 would be removed. The court also stated that a

written ruling would follow, which would detail the court’s factual findings and legal

analysis, and it invited counsel to propose “any kind of curative instruction” for

consideration. Aplt.’s App., Vol. XXVII, at 6591.

Following its rulings from the bench, the district court conferred with the

parties and concluded that the least disruptive way to excuse Jurors 6 and 16 was to

meet with them individually in a conference room with a court reporter present to

make a record. The parties also agreed that a curative jury instruction should be

provided to the remaining jurors, informing them that Jurors 6 and 16 were being

Although Mr. Geragos briefly represented Michael Jackson, he did not serve as trial counsel for Mr. Jackson when he was charged with child molestation. But Mr. Geragos believes many people erroneously believe that he represented Mr. Jackson at that trial.

Aplt.’s App., Vol. VII, at 1419 n.14. 31 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 32

dismissed to ensure a fair trial because they may have been exposed to outside

information.

But in the first conference-room meeting, Juror 16 adamantly denied having

any knowledge of the conversation the CSO reported, conversing with Juror 6, or

discussing the Michael Jackson trial at any length. For example, when asked about a

conversation “ha[ving] to do with a prior Michael Jackson case that Mr. Geragos had

handled,” Juror 16 responded: “I have no idea what that conversation was. That was

definitely not me. . . . The conversation that I had about Michael Jackson, someone

had just said that -- I don’t even know if that’s true because I’ve never done any

research on the case.” Id. at 6603–04. Juror 16 reiterated that “I don’t know Mr.

Geragos. I’ve never researched any information about him. . . . I’ve never had a

conversation about doves. . . . I just want to make it very clear that I did not have

that conversation.” Id. at 6604. Based on the vehemence of Juror 16’s denial of the

incident, the district court deferred on excusing her from the jury.

Next the district court met with Juror 6. When the court inquired about the

conversation reported by the CSO, Juror 6 denied knowing that Mr. Geragos had

represented Michael Jackson and explained that she had looked up the verdict of the

Jackson trial after seeing “Michael Jackson” listed on a “flyer” posted on the jury

room door:

THE COURT: . . . [O]n Monday night after . . . the day was over and the court security officers were ready to take folks down the elevator, one of the court security officers heard you and another juror having a conversation about Mr. Geragos and the fact that he previously represented Michael Jackson.

32 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 33

JUROR NUMBER 6: No. I didn’t know that. I don’t know that. I can tell you exactly what happened. There’s a flyer on our door for a TV show, and it’s like The Jury Show, and the names on it was [sic] OJ Simpson and Michael Jackson, and I don’t even know the other two. And I looked at the flyer, and I didn’t know . . . what happened with Michael Jackson, so I just Googled it. And I saw the counts, and I just saw he was found not guilty on all counts. . . . I didn’t see anything about his counsel or anything.

THE COURT: Okay. And was there a discussion about how folks were releasing doves after he was acquitted?

JUROR NUMBER 6: Yeah. . . . And I was like, I don’t remember. I was little when it happened.

THE COURT: Do you remember who said that?

JUROR NUMBER 6: I know who it was. I don’t know her name or number. She’s the one from Payson.

THE COURT: She’s the one from Payson?

[COURT STAFF MEMBER]: Juror Number 3.

JUROR NUMBER 6: But I looked up each of the things on the flyer because it just said their decision united the nation, and I didn’t know what the outcomes of those were. And so I just Googled them, and I just saw not guilty, not guilty, and then I like did all four. But I didn’t look at anything besides what the --

THE COURT: Were you looking at who the lawyers were?

JUROR NUMBER 6: No, I didn’t. I did it really fast, like I knew the first, I know OJ Simpson, and I looked at Michael Jackson and saw not guilty, and then I looked up the next guy and I saw he was being charged again, and I looked up the other guy, and I think they were all found not guilty, which is probably what the show is about. But . . . .

THE COURT: Where did this flyer come from that’s on the door?

JUROR NUMBER 6: I don’t know. It’s right on the door of our room.

33 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 34

Id. at 6605–07. Based on these responses, the court deferred on excusing Juror 6 and

instructed courtroom staff to retrieve the “flyer” to which Juror 6 had referred.

vi.

Upon further investigation, the district court determined that the “flyer” Juror

6 described was a full-page advertisement, which had apparently been torn out of a

magazine and affixed to the jury room door. The parties were given an opportunity

to review the advertisement, which the court found to contain the following:

[T]he advertisement[] [] had the words “The Jury Speaks” in capital letters across the top of the page. Underneath those words, the advertisement listed four well-known cases in smaller letters— Michael Jackson, O.J. Simpson, George Zimmerman, and Robert Durst. The bottom of the page listed information about when the “epic four-night event” would begin airing (July 22, 2017), and what network it would be airing on (Oxygen). In the top left-hand corner of the page, the advertisement stated, “their verdicts ignited the nation.” The advertisement contained a picture of a wooden chair, presumably a juror chair, on fire.

Aplt.’s App., Vol. VII, at 1422 (footnote omitted).

Upon seeing the advertisement, Mr. Dermen renewed his motion for mistrial,

arguing that it constituted prejudicial, extraneous information. The district court

suggested additional factfinding—specifically, an individual interview of each juror,

once again, in a second voir dire—to determine the source of the advertisement. The

parties agreed.

34 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 35

vii.

Through its second voir dire, the district court learned the origin of the

advertisement. Like before, the court interviewed each juror individually in the

courtroom, in the presence of the parties, while the other jurors waited in the jury

room. The parties suggested questions for the court to ask, and they were given the

opportunity to ask follow-up questions to each juror. Juror 3 testified that she picked

up a copy of a 2017 edition of People magazine from the waiting area of the jury

assembly room during jury selection. She kept the magazine with her throughout

jury selection, and after she was selected, she brought the magazine to the jury

deliberation room, where it remained during the first several weeks of trial.

One evening, as the jurors waited for their transportation to arrive, Juror 5

noticed the magazine and began reading it. He noticed the advertisement and found

it humorous, so he tore it out of the magazine and, at some point, affixed it with post-

it notes to the interior door of the jury deliberation room. Several jurors testified that

the advertisement had been secured to the door for quite a while. Juror 12, for

example, testified that the advertisement had been affixed to the jury room door for at

least a week. A court staff member stated that, during that time, she had noticed the

advertisement, found it humorous, observed that it was stuck to the door with Post-It

notes, and rehung it with tape.

Juror 6 testified that she noticed the advertisement on the door during the third

week of trial—again, at the end of the day, as the jurors awaited transportation. She

used her phone to search for the verdicts in three of the cases listed, including

35 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 36

Michael Jackson’s case. As Juror 6 was reading about the Michael Jackson verdict,

she said aloud, “oh I didn’t know he was found not guilty on all counts.” Id. at 1412.

Juror 3 overheard her, and asked if she remembered the doves that were released

outside the courthouse as each acquittal was announced. Juror 6 responded that she

was too young to remember any details about the case, at which point Juror 3

remarked that her husband wished he had been there to shoot the doves as they were

released. Several other jurors who were waiting in the hallway overheard these

remarks, as did the CSO. In their second voir dire interviews, Juror 3 clarified that

her husband was a hunter and a “smart aleck,” and Juror 7 confirmed that the mention

of the doves was “kind of a joke.” Id. at 1426–27. Juror 3 testified that, during the

conversation, she didn’t correlate the remarks about Michael Jackson with the

advertisement at all. Similarly, Juror 7 did not connect the conversation to anyone

involved in Mr. Dermen’s case.

In a subsequent order, the district court made the following findings of fact as

to the impact of the advertisement on each member of the jury, based on the second

round of voir dire interviews:

Juror 1 noted that “[t]he only thing I saw was The Jury Speaks. I haven’t even paid attention to it. You kind of walk past it. I have no idea what’s on there other than that.”

When Juror 2 was asked if he remembered what the advertisement said under “The Jury Speaks,” he said he remembered that it mentioned O.J. Simpson, but stated “I’ve never even really gone up and looked at it. I’ve just seen it in passing.”

Juror 3 stated “I have no idea what it was about.”

36 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 37

When Juror 4 was asked if he recalled ever having seen the advertisement, he answered affirmatively, but could not correctly recall the details of the advertisement. He stated, “Yes. It was a chair. I didn’t read it. I just saw the chair that’s on in [sic]. It said Hot Seat.”

[Juror 5 posted the advertisement on the jury room door.]

Juror 6, who had indicated the magazine page had spurred her to search for the cases listed on the page, made no connection between the advertisement and this trial.

Juror 7 thought the advertisement was the cover page for an article, stating, “I think the contents was [sic] regarding – I haven’t looked at the article, but I think it pertains to an article about jurors that were on, I think the O.J. Simpson trial, Michael Jackson, the Trayvon case in Florida. Just about that. That’s my understanding.” He also erroneously believed that the picture showed “an empty chair. . . with a flag.”

Juror 8 did not remember the advertisement or any discussions about it at all.

Juror 9 understood that the advertisement was for “a TV show about like the OJ Simpson case,” and believed the picture showed “[a] wood chair like the old jury you see on TV I guess.”

Juror 10 could not recall any case names on the advertisement, what the picture on the advertisement depicted, or any conversations about the advertisement.

Juror 11 remembered that there was an advertisement on the jury room door but had “a hard time even remembering that it said The Jury Speaks. . .” He did, however, recall that O.J. Simpson was listed on the page.

Juror 12 had seen the advertisement but noted, “I didn’t really pay a lot of attention to it. It seemed to be a reference to a TV show. I don’t watch a lot of TV. It didn’t resonate with me.” To Juror 12, “[i]t was a decoration.” He stated that he witnessed the courtroom deputy affixing the advertisement to the door. . . .

Juror 13 stated that he “Never even looked to read it [the advertisement].” All he knew was that “the title . . . says The Jury, or something like that.” 37 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 38

Juror 14 also only recalled that the advertisement said the word “jury.” She stated, “It might have said “jury.” However, I don’t remember exactly. But I think it said that in big writing. But I don’t—I think. I could be wrong.” She stated she thought there “was black on the picture.”

When asked about the advertisement, Juror 15 stated, “Honestly I didn’t even read it. I passed by it, thought about it, didn’t look appropriate, so I didn’t look at it.”

Juror 16 could accurately identify the picture, but believed that the advertisement “had some dates, I don’t know what the dates were. And it said something about—I can’t even remember what it said. It looked like a conference or something that you can come and learn about jurors or jury duty. Like you’re in the hot seat is what I would[.]” She believed that the picture symbolized the jury’s role in being “the judge of somebody else’s of—whatever narrative is being presented to you, so I guess it puts you in the hot seat.”

Id. at 1423–25 (footnotes and citations omitted; line spacing added).6 In sum, the

court found that “most jurors indicated that they had paid little attention to [the

advertisement].” Id. at 1423.

viii.

The district court also ascertained additional details regarding the hallway

conversation that had been reported to the CSO in a second interview of him, in

which the court gave the parties the opportunity to question him out of the presence

of the jury. The CSO’s second interview was broadly consistent with the first;

however, when the CSO was asked specifically if he remembered Mr. Geragos’s

name being mentioned in the conversation, he responded that he did not. And, when

6 The district court noted in its findings of fact that the words “hot seat” did not appear anywhere on the advertisement. Aplt.’s App., Vol. VII, at 1423 n.18. 38 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 39

asked if he thought that Mr. Geragos was the attorney who “got Michael Jackson

off,” he responded that he did believe that to be the case—and was surprised to learn

that Mr. Geragos was not involved in Michael Jackson’s trial at all. Id. at 1427.

ix.

Based on its second round of interviews, the district court determined that

Juror 5 had torn the advertisement out of an old magazine and hung it on the door;

that Juror 3, not Juror 16, had been the other participant in the conversation that the

CSO had overheard;7 and that Juror 3 had told Juror 6 that her husband would have

liked to shoot the doves. Notably, during each round of interviews, each juror was

asked whether conversations with fellow jurors regarding other cases or the magazine

advertisement would affect his or her decision or impact his or her ability to be fair

and impartial in Mr. Dermen’s case.8 The jurors were consistent and unanimous in

responding to both questions in the negative. Jurors 3 and 6 also testified that neither

their conversation nor the advertisement would impact their ability to decide the case

fairly and impartially. Pursuant to these findings, the district court again denied

Mr. Dermen’s motion for mistrial and decided not to remove Jurors 3 and 6.

7 Based on this misidentification, the district court “aborted” its dismissal of Juror 16. Aplt.’s App., Vol. VII, at 1425 n.23. Juror 16 was ultimately designated as an alternate when the jury was excused for deliberations. 8 The court conducted follow-up interviews with Jurors 3 and 6 on March 1, 2020, to ask them these questions. 39 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 40

x.

After soliciting the parties’ input, the court proposed a curative jury instruction

to address the events of February 25–27, to which neither party objected. The

instructions addressed five issues: (1) the reason for the two sessions of voir dire;

(2) any concerns jurors may have had regarding the nature of their conversations;

(3) the fact that the magazine advertisement was not to be considered as evidence and

had nothing to do with this case; (4) the fact that Mr. Geragos did not represent

Michael Jackson at trial; and (5) the neutrality of court staff. The court concluded its

inquiry by calling the jury back into the courtroom and delivering the curative

instructions from the bench.

xi.

On March 26, 2020, the district court issued a supplemental order to its ruling

from the bench to detail the court’s factual findings and legal analysis. The court

made the following four key findings based on its investigation—that is, the two

individual voir dires of the full jury and additional individual interviews of Jurors 3,

6, 16, and the CSO.

First, the court found that the CSO erroneously assumed that Jurors 3 and 6

were discussing Mr. Geragos. The court acknowledged that “[b]ased on initial

reports from the USMS on February 25, 2020, the court and the parties believed that

an improper conversation had taken place between Jurors 6 and 16 regarding

Mr. Geragos’s prior representation of Michael Jackson.” Id. at 1438. Ultimately,

however, the court found that the CSO had mistakenly identified Juror 16 as the

40 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 41

second participant; in actuality, the second participant was Juror 3. And, more

importantly, the court found that its investigation revealed that “[a] convergence of

mistaken identity, confusion regarding the nuances of a conversation, and

assumptions regarding Mr. Geragos’s prior clients erroneously led the court and the

parties to initially conclude that this innocuous conversation between jurors somehow

related to this case. In fact, it did not.” Id.

Second, the court found that the advertisement was not extraneous information

because it “does not relate to this case in any way,” id. at 1445, and, in the

alternative, that even if the advertisement was extraneous information, it was

harmless because it had no effect on the jury.

Third, the court found that Jurors 3, 5, 6, 7, and 11 were forthcoming during

the court’s voir dire interviews and thus should not be disqualified.

Fourth, the court concluded that the curative jury instruction would mitigate

any possibility of prejudice.

Finally, with respect to prejudice, the court elaborated based on its

investigation that “none of the issues raised by the defense have anything to do with

[Mr.] Dermen or the charges he is facing.” Id. at 1454. Thus, the court was

“convinced beyond a reasonable doubt that neither the hallway conversation

overheard by [the] CSO [] nor the magazine advertisement ha[s] given rise to any

prejudice against [Mr.] Dermen and that neither will have any bearing whatsoever on

the ability of any juror to fairly and impartially judge this case.” Id.

41 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 42

On appeal, Mr. Dermen raises four arguments to show that he was prejudiced

by the advertisement and alleged juror misconduct. First, he maintains that the

district court erred by finding that the advertisement did not amount to improper

extraneous information. Second, Mr. Dermen challenges the district court’s finding

that any exposure to the advertisement was harmless. Third, he argues that the

district court erred in finding that the conversations between jurors did not evince

prejudicial juror bias. Fourth, Mr. Dermen argues that the district court’s curative

jury instruction was insufficient to cure the prejudice that he faced from the

advertisement and conversations between jurors. Reviewing for abuse of discretion,

see Lawrence, 405 F.3d at 903, we find all of these arguments to be unpersuasive.

We begin with Mr. Dermen’s assertion that the advertisement was extraneous

information. Specifically, Mr. Dermen challenges the district court’s factual finding

that the advertisement had no connection to his case; he argues that the advertisement

was extraneous information because it “highlighted the judgment that the jury had to

pass upon [Mr.] Dermen.” Aplt.’s Opening Br. at 32. But, as we demonstrate infra,

Mr. Dermen does not show that the court clearly erred in making its finding

concerning the absence of extraneous information. Thus, we affirm the district

court’s decision “because there is credible evidence in the record to support it.”

Mayhue, 969 F.2d at 922.

42 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 43

For the advertisement to be prejudicial extraneous information, it must be

connected to the defendant’s case. Cf. Remmer, 347 U.S. at 229 (explaining that any

contact with a juror during trial “about the matter pending before the jury” is deemed

presumptively prejudicial). Our authority provides examples of extraneous

information that is connected to a defendant’s case, including the following:

information from a third party about a defendant’s financial transactions, see

Hornung, 848 F.2d at 1045; news coverage of the case being tried, watched by jurors

during trial, see Davis, 60 F.3d at 1483; dictionary definitions of terms at issue in the

case before the jury, which jurors consulted, see Aguirre, 108 F.3d at 1288–89; an

exhibit that was not admitted as evidence and inadvertently sent to the jury room

along with properly admitted trial exhibits, see Muessig, 427 F.3d at 864–65; an easel

and large notepad which, unbeknownst to the court, contained nine pages of

information written by the plaintiffs’ counsel and one of the plaintiffs’ experts during

trial, see Ingersoll-Rand Co., 214 F.3d at 1240–41; and information one juror shared

with the rest of the jury about the manner in which her husband stored his gun during

a felon-in-possession-of-a-firearm trial, see Daniels, 755 F. App’x at 797. By

contrast, in Lawrence, we found “no indication” that a pamphlet about jury

nullification that was found in the jury room had “affect[ed] their view of the case.”

Lawrence, 405 F.3d at 904.9

9 Mr. Dermen argues that we treated the jury nullification packet as extraneous information in Lawrence in that we analyzed whether it had a prejudicial effect on the jury. To be sure, we considered prejudice in Lawrence. But we did not expressly conclude that the packet was extraneous information; Mr. Dermen 43 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 44

Here, as in Lawrence, the district court found that the advertisement was not

connected to Mr. Dermen’s case, based on its extensive investigation into the

advertisement and its impact on the jury:

Although the defense has portrayed the advertisement as an inflammatory warning to any juror who would consider acquitting [Mr.] Dermen, after sixteen individual voir dire sessions and an additional follow-up interview with Juror 3, there is simply no evidence that any juror viewed the advertisement in this way.

Aplt.’s App., Vol. VII, at 1446–47. Reviewing for clear error, we find that this

conclusion has ample support in the record. See Mayhue, 969 F.2d at 922.

We first note that the district court’s second voir dire complied precisely with

the Remmer hearing procedure set forth in Hornung. See 848 F.2d at 1045 (citing,

inter alia, Remmer, 347 U.S. at 229–30). During the district court’s interview with

Juror 6, following the first voir dire, the court became aware of the advertisement on

the jury room door. Upon discovering and reviewing the advertisement, the court

correctly identified a possible exposure to extraneous information and conducted a

Remmer hearing—the second voir dire—to “determine the circumstances of the

improper contact and the extent of the prejudice, if any, to the defendant.” Hornung,

848 F.2d at 1045.

overstates our holding in that respect. See Lawrence, 405 F.3d at 904. In any event, Lawrence’s analysis of the relevance of the packet to the defendant’s case is the guiding element of our reasoning here. Cf. Remmer, 347 U.S. at 229. Therefore, we conclude that Lawrence’s analysis of the nullification packet is instructive to our extraneous information inquiry, notwithstanding Mr. Dermen’s portrayal of the case. 44 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 45

The court developed an exemplary record through this hearing process, from

which it determined that the advertisement was not extraneous information because,

in the first instance, it “does not relate to this case in any way.” Aplt.’s App.,

Vol. VII, at 1445. The propriety and thoroughness of the record that the district court

made—judged through the prism of Remmer—underscore why we should accord the

court’s findings great weight. Cf. Mayhue, 969 F.2d at 922 (“The trial judge presided

over the proceedings from start to finish; thus, he knows better than we how the

[extraneous information] might have diverted the jurors’ attention away from the

theories presented at trial and the instructions that were to govern their

deliberations.”).

Against this backdrop, we conclude that there is ample support in the record

for the district court’s finding that the advertisement was unrelated to Mr. Dermen’s

case. Although all but one juror remembered seeing the advertisement when asked

about it during voir dire interviews, none of the jurors drew any clear connection

between the advertisement and Mr. Dermen or Mr. Geragos. Mr. Dermen asserts that

the advertisement “emphasized that verdicts in notorious cases—like

[Mr.] Dermen’s, in which the defendant and prominent members of the most

powerful church in Utah [i.e., Jacob and Isaiah Kingston] were accused of fraud

against the U.S. in excess of $1 billion—could ‘ignite the nation.’”10 Aplt.’s Opening

10 The Kingstons are members of the Davis County Cooperative Society, also known as “the Order.” The Order is a religious organization that is primarily based in Utah and associated with the fundamentalist Church of the Latter Day Saints. 45 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 46

Br. at 32 (footnote added). But Mr. Dermen is the only one expressing this view: the

record shows that no juror made this connection.

To the contrary, eleven jurors stated that they had not “paid attention to,”

“looked at,” or “read” the advertisement, or that they saw it only “in passing”

(or stated variations of those phrases). Juror 6 made no connection between the

advertisement and Mr. Dermen’s trial, despite her deeper engagement with the

advertisement—as evidenced by her internet research and subsequent conversation

with Juror 3—and, similarly, Juror 3 did not connect her conversation with Juror 6

about Michael Jackson to the advertisement or Mr. Dermen. The evidence from the

second voir dire shows that the district court’s finding that the advertisement was

unrelated to Mr. Dermen’s case was, at the very least, plausible. See Anderson v.

City of Bessemer City, 470 U.S. 564, 573–74 (1985).

To be sure, as Mr. Dermen argues, Juror 16 indicated that the advertisement

related to her role as a juror. Juror 16 stated that the advertisement “symbolized the

jury’s role in being the judge of somebody else[] . . . I guess it puts you in the hot

seat.” Aplt.’s App., Vol. VII, at 1425 (quotation omitted). But we can hardly say

that this general invocation of the solemn duty of a juror to sit in judgment on their

fellow citizens amounts to a material and particularized connection between the

advertisement and Mr. Dermen’s case. In other words, the court could plausibly find

that the evidence does not show that the advertisement was connected by Juror 16 in

any material way with Mr. Dermen or the charges against him. Indeed, neither

Juror 16 nor any other juror stated that the magazine’s content would affect his or her

46 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 47

decision as to Mr. Dermen. See Lawrence, 405 F.3d at 904 (“Each of the jurors who

recalled seeing the pamphlet stated that it did not affect their view of the case.”). As

such, Juror 16’s testimony does not show that the district court clearly erred in its

finding that the advertisement was irrelevant to Mr. Dermen.

We conclude, therefore, that the record supports the district court’s finding

that the advertisement was not extraneous because it “does not relate to this case in

any way.” Aplt.’s App., Vol. VII, at 1445. This finding is “plausible in light of the

record viewed in its entirety”; thus, Mr. Dermen does not show clear error.11

Anderson, 470 U.S. at 574; see also Gonzales, 99 F.3d at 986.

11 Mr. Dermen argues that Stouffer v. Trammell, 738 F.3d 1205 (10th Cir. 2013), shows that the district court erred because our circuit broadly construes the types of extraneous information that might prejudice a jury and necessitate the removal of jurors or a new trial. In Stouffer, in an appeal from the denial of habeas relief, we considered an improper jury communication between a state-court juror and her husband. See id. at 1215. A court security officer testified that he had observed repeated non-verbal communication between the juror and her husband, including nods and winks. See id. Most notably, “[a]t one point during the prosecution’s final closing argument, [the] Juror [] looked to her husband with ‘a questioned look in her face,’” and he “responded by nodding and rolling his eyes.” 738 F.3d at 1215 (quoting state-court record). We held that these courtroom communications were improper, and we remanded to the district court to conduct a Remmer hearing to determine whether the defendant was prejudiced. See id. at 1216– 17, 1220. But Stouffer does not address the question presented here—whether the district court abused its discretion in determining whether certain information that the jury was exposed to constituted extraneous information. Rather, Stouffer involved improper jury contact, a form of juror bias. In any event, our disposition in Stouffer underscores the propriety of the Remmer hearing that the district court conducted here. There would be no basis here to remand for the district court to conduct a Remmer hearing where it already has conducted an exemplary one. In sum, Mr. Dermen’s Stouffer argument is unpersuasive. 47 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 48

Even assuming, arguendo, that Mr. Dermen could show clear error in the

district court’s finding that the advertisement did not constitute extraneous

information about his case, the district court did not abuse its discretion in finding

that the impact of the advertisement was harmless beyond a reasonable doubt. See

Morales, 108 F.3d at 1222. Most fundamentally, that is because the record supports

the district court’s finding that no juror found the advertisement to be material to

Mr. Dermen’s case; thus, it was not prejudicial.

Our decision in Lawrence is instructive. There, a pamphlet about jury

nullification was found in the jury room and the defendant-appellant moved for a

mistrial. See Lawrence, 405 F.3d at 896. The district court in Lawrence

implemented the familiar Remmer hearing process: the court paused the trial and

interviewed each of the jurors in the presence of counsel, allowing the attorneys to

question the jurors if they so desired. See id. Through the Remmer hearing, the

district court determined that “[w]hile several of the jurors indicated they had seen

the pamphlet, the court determined that there was, at most, very limited discussion of

the contents” and that “[a]ll of the jurors who reviewed the pamphlet stated that they

would not be influenced by it in their deliberations.” Id. In light of this record, the

district court found “no indication the pamphlet had affected the jury’s ability to

follow the instructions or decide the case.” Id. Therefore, the district court denied

the motion for a mistrial and gave the jury a curative instruction. See id. On appeal,

we affirmed the district court’s decision. See id. at 904, 909.

48 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 49

The similarities between Lawrence and Mr. Dermen’s case are striking. Here,

upon being notified of potential jury exposure to extraneous information, the district

court conducted a near-identical Remmer hearing to the hearing conducted in

Lawrence and found near-identical facts. In both cases, although jurors remembered

the potentially extraneous information at issue, discussions of its contents were

limited. Here, engagement with the advertisement was limited to Juror 5 putting it on

the jury room door, Juror 6 researching the verdicts of the cases listed on the

advertisement, and Jurors 6 and 3 discussing the Michael Jackson case. No jurors

made a connection between the advertisement and the counts against Mr. Dermen.

Importantly, all jurors stated that “neither the conversations nor the magazine

advertisement would bear on their decision or have any impact on their ability to be

fair and impartial in [Mr. Dermen’s] case.” Aplt.’s App., Vol. VII, at 1429. And, as

in Lawrence, the district court issued a curative instruction, as a prophylactic

measure, to mitigate any outstanding risk of prejudice. Under either of the two

standards our circuit has developed to assess the impact of exposure to extraneous

material on a jury—viz., the “slightest possibility” approach or the “presumption of

prejudice” approach—we cannot conclude that the district court erred in finding no

prejudice; nothing in the record supports a finding of prejudice. See Muessig,

247 F.3d at 865. Specifically, here, as in Lawrence, “[g]iven the absence of any

evidence regarding juror prejudice, the district court did not abuse its discretion by

denying the motion for a mistrial.” Id. at 904.

49 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 50

Next, we consider and reject Mr. Dermen’s challenges to the district court’s

decision to deny his motion for mistrial based on juror misconduct and, more

specifically, juror bias. Mr. Dermen contends that “Jurors 3, 5, 6, and 7 should have

been excused for cause due to lack of candor, failing to abide by the court’s

admonishments and instructions, and for having actual or implied bias towards the

defense.” Aplt.’s Opening Br. at 36 (quotation omitted). Accordingly, we review the

district court’s findings as to each juror and ask “[1] whether actual bias existed or

[2] whether the circumstances compel an imputation of inherent bias to the juror as a

matter of law[,] such that the misconduct has prejudiced the defendant to the extent

that he has not received a fair trial.” Lawrence, 405 F.3d at 903. We review the

district court’s findings as to actual bias for clear error and the court’s findings as to

implied bias de novo. See Gonzales, 99 F.3d at 986.

a.

Mr. Dermen argues that the hallway conversation between Jurors 3 and 6

shows that they “drew a connection between [Michael] Jackson’s acquittal and

[Mr.] Dermen’s counsel, [Mr.] Geragos.” Aplt.’s Opening Br. at 30. According to

Mr. Dermen, “[t]he affected jurors possessed a disqualifying bias and should have

been removed.” Id. Recall that the district court found that “[a] convergence of

mistaken identity, confusion regarding the nuances of a conversation, and

assumptions regarding Mr. Geragos’s prior clients erroneously led the court and the

parties to initially conclude that this innocuous conversation between jurors somehow

50 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 51

related to this case. In fact, it did not.” Aplt.’s App., Vol. VII, at 1438. We review

Mr. Dermen’s challenge to the district court’s factual finding for clear error and find

that it is well supported by the record. See Gonzales, 99 F.3d at 986.

To the extent that Mr. Dermen challenges the district court’s findings of actual

bias, we conclude that two facts show that the district court did not clearly err—that

is, demonstrate that the district court’s account of the evidence is plausible in light of

the record. See Anderson, 470 U.S. at 573–74. First, the CSO’s second interview

revealed that the CSO did not specifically remember Mr. Geragos’s name being

mentioned in the conversation, and he was surprised to learn that Mr. Geragos was

not involved in Michael Jackson’s trial. Second, Jurors 3 and 6 denied having a

conversation about Mr. Geragos. “The district judge is entitled to rely upon its

self-evaluations of allegedly biased jurors in determining actual juror bias,” Wacker,

72 F.3d at 1467, in “a [Remmer] hearing in which the defendant has the opportunity

to prove actual bias,” Smith, 455 U.S. at 215. That is precisely the procedure the

district court employed to clarify that no actual bias was present here, and we

conclude that the district court’s evaluation enjoys support in the record.

Mr. Dermen points to Juror 16’s statement that “[s]omeone had said

[Mr. Geragos] had represented Michael Jackson,” Aplt.’s App., Vol. XXVII,

at 6562–63, and the CSO’s testimony that he heard a juror state “he’s the one that got

Michael Jackson off,” id. at 6700, as countervailing evidence. But after weighing

this evidence, the district court found that:

51 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 52

Because of [the CSO’s] erroneous belief that Mr. Geragos had previously represented Michael Jackson on child molestation charges, [the CSO] erroneously assumed that Jurors 6 and 3 were discussing Mr. Geragos, when they were in fact making an innocuous reference to popular culture that neither of them believed related in any way to this case.

Aplt.’s App., Vol. VII, at 1439–40. Based on our review of the record, we cannot say

that the evidence that Mr. Dermen points to makes the district court’s factual finding

implausible. See Anderson, 470 U.S. at 573–74. Nor can we weigh evidence on

appeal. See id. “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” Id. at 574.

Therefore, we conclude that the district court did not clearly err in finding that its

initial conclusions about the hallway conversation actually amounted to a harmless

misunderstanding—not actual bias.

Mr. Dermen also argues that the hallway conversation—and Juror 3’s

“shooting the doves” comment, in particular—show that Jurors 3 and 6 harbored

implied bias against him and Mr. Geragos, which they had an interest in concealing.

But the record shows that the jurors viewed the “shooting the doves” comment as

humorous and benign. In their second voir dire interviews, Juror 3 clarified that her

husband was a hunter and a “smart aleck,” and Juror 7 confirmed that the doves

comment was “kind of a joke.” Aplt.’s App., Vol. VII, at 1426–27.

Our authority makes clear that “[t]he implied bias doctrine should not be

invoked lightly.” Gonzales, 99 F.3d at 987. And the “‘extreme’ and ‘exceptional’

circumstances that ‘leav[e] serious question whether the trial court . . . subjected the

52 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 53

defendant to manifestly unjust procedures resulting in a miscarriage of justice’” are

simply not present here. Id. (alteration and omission in original) (quoting Smith,

455 U.S. at 222 & n.* (O’Connor, J., concurring)). For example, no juror was found

to harbor the sort of close relationship to an interested party that is often associated

with our implied bias doctrine. See id.

Accordingly, we conclude that the district court did not abuse its discretion in

denying Mr. Dermen’s motion for mistrial on account of juror bias.12 See Lawrence,

405 F.3d at 904; Gonzales, 99 F.3d at 986.

12 Mr. Dermen advances two further bias arguments as to Jurors 5 and 6. We find them meritless. First, Mr. Dermen suggests that the research Juror 6 conducted on her phone about the verdicts in each case that was depicted on the advertisement evinces juror bias. However, the district court found that the research was ultimately unrelated to Mr. Dermen’s case:

Juror 6 searched for Michael Jackson on the internet simply because she noticed it listed on the magazine advertisement and was curious to learn the verdict of the case. She did not believe she was violating her oath or the court’s instruction not to conduct outside research related to the trial because she had no reason to suspect that [Mr. Dermen’s] case was in any way relevant to a case from fifteen years ago involving a deceased figure from popular culture.

Aplt.’s App., Vol. VII, at 1439 (footnote omitted). Mr. Dermen fails to specify why this finding is clearly erroneous and offers no further argument as to how Juror 6’s research into an unrelated case evinced bias or otherwise prejudiced him. Second, Mr. Dermen intimates that Juror 5 harbored bias because he posted the advertisement on the jury room door and related the advertisement to the experience of serving as a juror. This argument is meritless because Mr. Dermen does not specify a theory as to the bias Juror 5 held against Mr. Dermen, Mr. Geragos, or any other related individual.

53 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 54

Finally, Mr. Dermen argues that the district court’s jury instruction could not

cure the prejudice resulting from the jurors’ exposure to the advertisement—that is,

the curative instructions could not “ameliorate the ominous warning that an acquittal

in [Mr.] Dermen’s high publicity trial, like the acquittals in the cases in the

advertisement, could ‘ignite the nation.’”13 Aplt.’s Opening Br. at 38. In support of

13 Mr. Dermen objects to the efficacy of the district court’s curative jury instruction for the first time on appeal. Specifically, the record shows that Mr. Dermen did not object to the district court’s curative jury instruction; in fact, he collaborated with the district court and the government to craft an approach to delivering curative instructions that he now challenges. It is at least arguable that Mr. Dermen has thereby waived any objection to the court’s instruction on appeal under the doctrine of invited error. See United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012) (explaining that a defendant knowingly and voluntarily waives the right to attack the sufficiency of a jury instruction when he proffers his own instruction and persuades the court to adopt it); United States v. Sturm, 673 F.3d 1274, 1281 (10th Cir. 2012) (holding that the defendant was barred from attacking the sufficiency of an instruction that he proffered himself); United States v. Visinaiz, 428 F.3d 1300, 1310–11 (10th Cir. 2005) (concluding that the defendant was barred from attacking the sufficiency of an instruction that he approved after the district court adopted his proffered modifications); cf. Earthgrains Baking Cos. Inc. v. Sycamore Fam. Bakery, Inc., 573 F. App’x 676, 681 (10th Cir. 2014) (“We are particularly bound to apply the waiver rule in the case at bar, because by stipulating to the instructions to which he now objects, [Defendant] affirmatively assented to their being read to the jury.”); United States v. Wells, 38 F.4th 1246, 1255 (10th Cir. 2022) (similar). And at minimum, it would seem that Mr. Dermen has effectively waived an objection to the efficacy of the court’s curative jury instruction by failing to object to the instruction below and failing to seek plain-error review on appeal. United States v. Woodmore, 135 F.4th 861, 880 (10th Cir. 2025) (“[Defendant] has not preserved his appellate challenge to the [jury] instruction. This challenge is effectively waived because [he] failed to raise the specific theories underlying the challenge before the district court, and he does not argue for plain-error review on appeal.”); United States v. McBride, 94 F.4th 1036, 1045 (10th Cir. 2024) (“Because [Defendant] both failed to preserve [his] arguments below and failed to argue plain error here, [his] arguments have ‘come to the end of the road and [are] effectively 54 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 55

his argument, Mr. Dermen invokes our decision in United States v. Chanthadara, 230

F.3d 1237 (10th Cir. 2000), in which we held that “in some instances, instructions are

insufficient to cure the prejudice resulting from extraneous information received by

jurors.” Id. at 1251. Mr. Dermen argues that his case is one such instance. We

disagree.

In Chanthadara, the district court judge stated outside of the jury’s presence

that he believed the defense’s evidence to be “a smoke screen.” Id. at 1247.

waived.’” (last alteration in original) (quoting Fish v. Kobach, 840 F.3d 710, 729–30 (10th Cir. 2016))).

All that said, however, the government does not specifically contend that Mr. Dermen has not preserved for review an objection to the curative instruction— even though the government does note in its brief that Mr. Dermen “did not object to the court’s proposed curative instructions,” Aplee.’s Resp. Br. at 56; see also id. at 50 (“[T]he parties did not object to the court’s proposed curative instructions, which the court gave before trial resumed.”). Therefore, regarding a potential claim of lack of preservation, the government has a preservation problem of its own. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1138–39 (10th Cir. 2010) (“[Plaintiffs’] brief does not raise a forfeiture challenge. Accordingly, Plaintiffs have themselves forfeited any forfeiture argument they may have on this issue, and this court will consider the merits of Defendants’ argument.”); United States v. Reider, 103 F.3d 99, 103 n.1 (10th Cir. 1996) (holding that “we do not consider the [waiver] issue” where “the government has not contended that these actions [of defendant, bespeaking waiver] preclude defendant from challenging” the relevant district court rulings).

Therefore, we exercise our discretion to consider the merits of Mr. Dermen’s objection to the efficacy of the court’s curative jury instruction. See Singleton v. Wulff, 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.”); United States v. Montgomery, 550 F.3d 1229, 1231 n.1 (10th Cir. 2008) (concluding that “we [may] exercise our discretion to ignore the waiver”); cf. United States v. McGehee, 672 F.3d 860, 873 n.5 (10th Cir. 2012) (“[W]e are not obliged to apply forfeiture principles to the government's briefing omission; such decisions are discretionary.”). 55 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 56

However, the judge did not consider that journalists were in the court room. See id.

The following morning, a local newspaper ran an article reporting on the judge’s

comments. See id. The headline read: “JUDGE IN MURDER CASE CALLS

DEFENSE STORY A ‘SMOKE SCREEN.’” Id. We held that a jury instruction

could not cure the resulting prejudice. See id. at 1264.

Mr. Dermen’s case bears no resemblance to the facts in Chanthadara; the case

is simply inapposite. Chanthadara concerned a highly prejudicial statement from the

district court itself. Conversely, the district court’s instructions here were a

prophylactic measure, designed to cure any potential prejudice from the

advertisement and jury conversations—despite the district court’s proper finding that

the advertisement and jury conversations were harmless in the first instance.

Under our precedent, this is not a circumstance in which prejudice is too

damaging to be cured by a well-tailored jury instruction. Rather, the district court’s

curative instruction simply reflected its prudent “belt-and-suspenders” approach to

curing potential prejudice despite having actually found none. Thus, Chanthadara is

inapposite and our general rule controls: the district court may employ a curative jury

instruction to ameliorate the risk of prejudice, and the court did not err in doing so

here. See, e.g., Zafiro, 506 U.S. at 540–41.

***

Therefore, we conclude that the district court did not abuse its discretion in

denying Mr. Dermen’s motion for mistrial based on juror misconduct.

56 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 57

B. Mistrial Based on COVID-19

Mr. Dermen next contends that the district court erred by denying his motion

for mistrial based on the onset of the COVID-19 pandemic, which, he argues,

amounted to an abuse of the district court’s discretion. We disagree. Faced with the

uncertain and difficult situation that COVID-19 presented in March of 2020, the

district court acted reasonably in its management of Mr. Dermen’s trial. Moreover,

we are unpersuaded that the COVID-19 pandemic had any prejudicial effect on

Mr. Dermen’s case. Accordingly, we reject his challenge and uphold the district

court’s denial of his motion for mistrial.

We review the denial of a mistrial for abuse of discretion, see Lawrence,

405 F.3d at 903, “reversing only where the decision was ‘arbitrary, capricious,

whimsical, or manifestly unreasonable,’” Ingersoll-Rand, 214 F.3d at 1242 (quoting

Byrne, 171 F.3d at 1235).

A district court may declare a mistrial “whenever, in their opinion, taking all

the circumstances into consideration, there is a manifest necessity for the act, or the

ends of public justice would otherwise be defeated.” United States v. Perez, 22 U.S.

579, 580 (1824) (emphasis added); see Renico v. Lett, 559 U.S. 766, 774 (2010). “On

multiple occasions, the Supreme Court has refused to adopt a mechanistic formula for

the presence of ‘manifest necessity’ and has repeatedly reiterated that trial judges

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must be accorded broad discretion to declare a mistrial.” Walck v. Edmondson,

472 F.3d 1227, 1236 (10th Cir. 2007) (citation and footnote omitted); see Renico, 559

U.S. at 774. “The decision to declare a mistrial is [thus] left to the ‘sound discretion’

of the judge, but ‘the power ought to be used with the greatest caution, under urgent

circumstances, and for very plain and obvious causes.’” Renico, 559 U.S. at 774

(quoting Perez, 22 U.S. at 580). And “a trial judge’s finding of manifest necessity is

entitled to the ‘highest degree of respect’ when juror bias . . . is involved.” United

States v. Crotwell, 896 F.2d 437, 440 (10th Cir. 1990) (quoting Arizona v.

Washington, 434 U.S. 497, 510–11 (1978)).

Mr. Dermen moved for a mistrial while the jury was deliberating, arguing that

the COVID-19 pandemic would have a prejudicial effect on the deliberations. The

jury began deliberating shortly before noon on Thursday, March 12, 2020. At

2:15 p.m., the jury sent a note stating that it would be leaving at 4:00 p.m., would

take Friday off, and planned to restart its deliberation on Monday at 9:00 a.m. The

jury deliberated until approximately 3:45 p.m. on that Thursday. On Sunday,

March 15, 2020, at approximately 6:30 p.m., Mr. Dermen filed a motion requesting

that the court declare a mistrial in light of the spread of COVID-19. Specifically,

Mr. Dermen argued:

[A]bsent the declaration of a mistrial[,] our jurors will be tasked with continuing their duties and responsibilities as fact-finders in a complex criminal matter with very serious implications for this

58 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 59

defendant while being in close quarters in direct violation of every medical directive to socially distance. . . . Any verdict that results from these conditions would be unreliable, not the product of the unfettered deliberative process[,] and we would be horribly remiss to not consider the obvious fact that jurors will rush through their responsibilities as the fact-finders to simply be physically released from a medically unhealthy, perhaps life threatening environment.

Aplt.’s App., Vol. II, at 345–46 (Def.’s Mot. for a Mistrial, dated Mar. 15, 2020).

The next morning, Monday, March 16, the court ordered the government to

respond to Mr. Dermen’s motion for mistrial by 5:00 p.m. At approximately 1:30

p.m., the jury reached its verdict, finding Mr. Dermen guilty of all counts. Following

the announcement of the verdict, the government submitted its memorandum

opposing Mr. Dermen’s motion for a mistrial, to which he replied later that evening.

Supplemental briefing by both parties followed.

Several instances of illness precipitated Mr. Dermen’s motion for a mistrial

and were referenced in his arguments therein. On March 1, Juror 1 notified the court

that she had developed a “severe head cold” and “coughing fits,” and on March 2,

before returning to court, she developed “flu symptoms” and “dizz[iness].” Aplt.’s

App., Vol. XX, at 4633 (Jury Trial Tr., held Mar. 2, 2020). The district court noted

that illness of a juror is “one of the reasons that we have alternates.” Id. at 4633–34.

That same day, the district court excused Juror 1 due to illness. As such, Juror 1

“had not been with fellow jurors for 18 days by the time they returned to deliberate

on the morning of March 16.” Aplt.’s App., Vol. II, at 427 (Order Denying Def.’s

Mot. for Mistrial, dated Apr. 6, 2020) (footnote omitted).

59 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 60

On March 3, Juror 9 wore a mask into the courtroom. The district court asked

whether Juror 9 was okay. Juror 9 reported having “a fever and [] some chills” the

night prior, but was “feel[ing] pretty good” that morning. Aplt.’s App., Vol. XXI,

at 4856 (Jury Trial Tr., held Mar. 3, 2020). The court noted its appreciation for Juror

9’s consideration, offered to make available “a separate room to go into during the

breaks,” and advised that “if you at any point feel ill or feel like you need a break, or

a drink, or anything, don’t hesitate to raise your hand.” Id.

On the morning of March 4, the district court inquired as to the wellbeing of

Juror 10. He had been wearing a mask to court since Monday, March 2, as a

precaution, but he reported to the court that he felt fine and was merely suffering

from a cold. The district court then checked whether “everybody else [was] doing

ok?” and reminded the jury that the court was taking precautions to prevent illness,

including providing hand sanitizer and “wiping absolutely everything down” in the

jury room. Id. at 5088.

On Friday, March 6, Juror 10 was excused for illness after visiting his doctor,

who diagnosed him with pneumonia. The following Monday, March 9, the district

court notified the parties and jury about his dismissal, reminded the jury that the

court “ha[s] had the cleaning staff here with hospital grade disinfectants wiping down

everything,” and encouraged them to continue to take precautions. Aplt.’s App.,

Vol. XXIII, at 5499 (Jury Trial Tr., held Mar. 9, 2020). The court also noted that

Juror 10 had been using a separate room for breaks during the week prior.

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During this time, the U.S. District Court for the District of Utah remained open

for regular operations, pursuant to Phase I of its Coronavirus Response Plan. On

March 12, 2020, the Chief Judge of the District of Utah implemented mitigation

protocols that included denying courthouse access to individuals diagnosed with

COVID-19 or those at high risk for infection—but no further directive was issued

until after the jury here had returned its verdict. No hearings had been continued or

cancelled in the District of Utah up until that point.

On the evening of March 16, 2020, several hours after the jury had returned its

verdict, the Chief Judge issued a new order, which instructed that the “courthouse

shall remain open for mission-critical functions of the judiciary, but the public and

members of the bar are encouraged to come to the courthouse only as necessary for

official court-related activities, including . . . in-person criminal hearings. . . .”

Aplt.’s App., Vol. II, at 421 (omissions in original) (quoting D. Utah, General Order

20-009, at 5). The order further stated: “All civil and criminal jury trials scheduled

to begin between today and May 1, 2020[,] are CONTINUED pending further order

of the court. . . . Criminal jury trials already underway are not affected by this

Order.” Id. (bold typeface omitted) (quoting D. Utah, General Order 20-009, at 1).

Pursuant to its terms, the March 16 order did not pertain to Mr. Dermen’s trial.

The district court denied Mr. Dermen’s motion by written order on April 6,

2020. In its written order, the district court found that Mr. Dermen “failed to

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establish a miscarriage of justice or the existence of a ‘manifest necessity’ for a

mistrial.” Id. at 423. Specifically, the court found that “Defendant has offered no

evidence that the jury’s decision was compromised in any way by the coronavirus

outbreak. No member of the jury raised any concerns or made any attempt to

communicate with the court or the jury coordinator regarding the coronavirus

outbreak.” Id. Similarly, the court found “absolutely no evidence to suggest that

either Juror 1 or 10 was ill with [COVID]-19 or that other jurors believed the two

excused jurors posed any risk to their health.” Id. at 427.

Finally, the court rejected Mr. Dermen’s suggestion that the jury’s “relatively

swift verdict” was indicative of prejudice, id. at 435:

[T]here is no requirement that jurors deliberate for a minimum length of time. And here, the jury deliberated for over eight hours. They began deliberations on Thursday, sent a note indicating they had “found a good stopping point for the weekend,” and returned the following Monday. They then deliberated for another four and a half hours and returned their verdict just after lunch. Nothing about this scenario suggests that jurors were angry, panicked or in a rush to leave the deliberation room.

The court has observed these jurors and their demeanor over the course of a seven-week trial and finds absolutely no evidence to suggest that they were scared, irritated, and/or angry as a result of the coronavirus. The court similarly finds no basis to conclude that the jury verdict was rushed, that the jury failed to conscientiously fulfill their duties as jurors, that Defendant was denied his right to be tried before a fair and impartial jury, or that the jury’s verdict constituted a miscarriage of justice.

Id. at 435–36 (footnote omitted). The district court thus denied Mr. Dermen’s motion

for a mistrial.

62 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 63

On appeal, Mr. Dermen argues that the jury deliberation process was “unsafe,”

Aplt.’s Opening Br. at 39, because at least three jurors experienced symptoms of

COVID-19 and jurors “were forced to deliberate in a confined space, without any

ability to socially distance,” id. at 48, such that the jury’s ability to deliberate

impartially was impeded by fear. According to Mr. Dermen, this confluence of

factors deprived him of his Sixth Amendment right to an impartial jury and a fair

trial. Moreover, he contends that jurors’ fear of COVID-19 created an “implicit bias”

that caused them to render a swift verdict to avoid sitting in close proximity to each

other during deliberations. Id. at 47–48. We are unpersuaded.

First, Mr. Dermen argues that a mistrial was warranted because at least three

jurors experienced symptoms associated with COVID-19, and the district court

“fail[ed] to take any steps to determine if anyone in the not-socially-distanced

courtroom had contracted COVID-19,” such that “[t]he jurors’ fear of COVID-19

was palpable”—and ultimately prejudicial to him. Aplt.’s Opening Br. at 45–46.

This argument lacks merit.

To the extent that by this argument Mr. Dermen challenges the district court’s

factual findings, he does not show clear error. See Gonzales, 99 F.3d 986. First, the

district court’s finding that there was no evidence Juror 1 and Juror 10 were made ill

by COVID-19 was not clearly erroneous. True, Jurors 1 and 10 reported symptoms

that are consistent with common viruses, including COVID-19. But Juror 1 was

63 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 64

dismissed for illness on March 2—and never appeared in court while symptomatic.

And Juror 10 was ultimately diagnosed with pneumonia, not COVID-19.

Though perhaps we cannot know definitively, the record contains no evidence

that either Juror 1 or Juror 10 was exposed to or contracted COVID-19. And the

record is clear that “[n]o member of the jury raised any concerns or made any attempt

to communicate with the court or the jury coordinator regarding the coronavirus

outbreak.” Aplt.’s App., Vol. II, at 423. Mr. Dermen argues that the jurors’ fear was

“palpable,” but he does not point to any statement from a juror to contradict the

district court’s finding that the jury’s decision was not compromised by fear of

COVID-19. See Stouffer v. Duckworth (“Stouffer II”), 825 F.3d 1167, 1180

(10th Cir. 2016) (“Surmise and suspicion may not be used to assail the integrity of a

jury[.]” (quoting Vigil v. Solano, 947 F.2d 955, 1991 WL 230177, at *4 (10th Cir.

Nov. 8, 1991) (unpublished))). In any event, we conclude that the district court’s

“account of the evidence is plausible in light of the record.” Anderson, 470 U.S.

at 573–74.

Moreover, far from evincing an abuse of discretion, the district court’s

COVID-19 precautions were eminently reasonable. See Ingersoll-Rand, 214 F.3d

at 1242. The court regularly asked the jurors whether they were feeling sick,

reassured them that the court’s cleaning staff were taking extra care to sanitize the

jury’s facilities, and offered separate rooms to accommodate jurors who felt ill. See,

e.g., Aplt.’s App., Vol. XXI, at 5088 (Jury Trial Tr., held Mar. 4, 2020) (“I don’t see

any other masks. Is everybody else doing okay?”); Aplt.’s App., Vol. XXIII, at 5500

64 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 65

(“[P]lease, please be careful. We certainly don’t want any more illnesses among

members of the jury.”). Ultimately, the district court excused Jurors 1 and 10 for

illness and replaced them with alternates. These instances of juror illness occurred

between March 2 and 5—at least eight days before the jury began its deliberation on

March 12, and eleven days before it delivered its verdict on March 16.

Consequently, these ill jurors would not have been in close proximity to the

deliberating jurors, such that they could potentially inspire fear or concern in those

jurors. Moreover, we conclude that the district court’s adherence to the District of

Utah’s Coronavirus Response Plan further demonstrates the reasonableness of its

approach. See Aplt.’s App., Vol. II, at 420–21.

Viewed in its entirety, this record shows that the district court acted quite

reasonably in its management of Mr. Dermen’s trial when faced with the uncertain

challenges that COVID-19 presented in March of 2020. On these facts, Mr. Dermen

fails to show that the district court abused its discretion in finding no “manifest

necessity” for a mistrial.14 See Renico, 559 U.S. at 774.

14 Mr. Dermen points to United States v. Thrush, No. 22-1588, 2023 WL 4564769 (6th Cir. July 17, 2023), cert. denied, 144 S. Ct. 574, 217 (2024); United States v. Coversup, No. 20-30266, 2022 WL 2207309 (9th Cir. June 21, 2022); United States v. Colon, 64 F.4th 589 (4th Cir. 2023); and United States v. O’Lear, 90 F.4th 519 (6th Cir. 2024), as persuasive authority to support his abuse-of- discretion argument. Putting aside the fact that this out-of-circuit authority is not binding on us, the cases are distinguishable from the facts of Mr. Dermen’s case and, thus, are unpersuasive.

First, in Thrush, a Sixth Circuit panel considered whether a district court judge abused his discretion by declaring a mistrial after he was exposed to COVID-19 and the jury was unavailable for a continuance. See 2023 WL 4564769, at *1–3. The 65 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 66

Next, Mr. Dermen argues that the jury’s fear of COVID-19 created an implicit

bias that prejudiced jurors against him. This argument fails at the threshold: even

assuming, arguendo, that Mr. Dermen could show that the jury was operating under a

fear of COVID-19, he cites no authority to support his assertion that such fear would

have engendered implicit bias against him in the jurors. Importantly, we have

panel narrowly affirmed, holding that “given the judge’s exposure to COVID-19,” the district court did not abuse its discretion in finding manifest necessity and declaring a mistrial. Id. at *6. But the panel did not hold that the COVID-19 pandemic alone would justify or mandate a mistrial. And here, the record contains no convincing evidence that anyone—judge or juror—actually contracted COVID-19 during trial. Accordingly, Thrush is inapposite. Moreover, the panel there specifically noted that “[t]he district court did not abuse its discretion by following [the lower court’s] [COVID-19] policy,” which included the instruction that “anyone ‘exposed within the last ten days’ to COVID-19 was ‘not permitted to enter the courthouse.’” Id. (capitalization and citation omitted). Contrary to Mr. Dermen’s intent, the panel’s reasoning thus supports the district court’s decision here to follow the District of Utah’s policy by completing Mr. Dermen’s trial pursuant to Phase I of its Coronavirus Response Plan.

Next, in Coversup, a panel of the Ninth Circuit upheld the district court’s denial of a motion for mistrial where the district court had continued trial for two weeks after a juror reported a potential COVID-19 exposure. See 2022 WL 2207309, at *1; United States v. Coversup, 2020 WL 4260519, at *2 (D. Mont. July 24, 2020), aff’d sub nom. Coversup, 2022 WL 2207309, at *1. The panel held that the continuance based on the juror’s potential exposure did not prejudice the defendant. See Coversup, 2022 WL 2207309, at *1 (“The district court did not abuse its discretion in denying [Defendant’s] motion for a mistrial, because [Defendant] failed to show that he suffered actual prejudice resulting from the fourteen-day jury separation.”). The case is patently inapposite. And, like Thrush, it involved a COVID-19 exposure—of which there is no record evidence here.

Finally, Colon affirmed a district court judgment to strike unvaccinated jurors for cause, see 64 F.4th at 596, and O’Lear affirmed a district court decision to only allow individuals to serve on a jury if they had been fully vaccinated against COVID-19, 90 F.4th at 524–530. These holdings are irrelevant to Mr. Dermen’s appeal. 66 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 67

explained that “[t]he implied bias doctrine should not be invoked lightly. It must be

reserved for those ‘extreme’ and ‘exceptional’ circumstances that ‘leav[e] serious

question whether the trial court . . . subjected the defendant to manifestly unjust

procedures resulting in a miscarriage of justice.’” Gonzales, 99 F.3d at 987

(alteration and omission in original) (quoting Smith, 455 U.S. at 222 & n.*

(O’Connor, J., concurring)). Mr. Dermen has shown no such extreme or exceptional

circumstances here.

To the contrary, any assumed juror fear would have been significantly

ameliorated by the district court’s reasonable procedures. The district court regularly

inquired as to the jury’s wellbeing, see, e.g., Aplt.’s App., Vol. XXI, at 5088 (asking

the jury if “everybody [was] doing ok” and reminding them that the court was taking

precautions to prevent illness); updated the jury on its hygienic practices, see Aplt.’s

App., Vol. XXI, at 5499 (reminding the jury that the court “ha[s] had the cleaning

staff here with hospital grade disinfectants wiping down everything”); provided

opportunities for the jury to practice social distancing during recesses, see Aplt.’s

App., Vol. XXI, at 4856 (offering to make available “a separate room to go into

during the breaks”); and complied with the District of Utah’s Coronavirus Response

Plan. These are hardly “manifestly unjust procedures resulting in a miscarriage of

justice,’” Gonzales, 99 F.3d at 987 (quoting Smith, 455 U.S. at 222 & n.* (O’Connor,

J., concurring)). Put succinctly, Mr. Dermen fails to show that the district court’s

response to any assumed juror fear could be deemed unreasonable and likely to

contribute to a manifest injustice. Cf. Crotwell, 896 F.2d at 440 (“[A] trial judge’s

67 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 68

finding of manifest necessity is entitled to the ‘highest degree of respect’ when juror

bias . . . is involved.” (quoting Arizona, 434 U.S. at 510–11)).

Finally, we reject Mr. Dermen’s argument that the jury’s swift verdict is

evidence of prejudicial implicit bias caused by COVID-19. We presume that jurors

follow their oath and the instructions given to them by the court. See Stouffer II,

825 F.3d at 1180 (“Surmise and suspicion may not be used to assail the integrity of a

jury; it is presumed that jurors will be true to their oath and will conscientiously

observe the instructions and admonitions of the court.” (quoting Vigil, 947 F.2d 955,

at *4)); Banks v. Workman, 692 F.3d 1133, 1150 (10th Cir. 2012) (“The law

presumes juries follow instruction.”). And here, there is no evidence to suggest that

the jury did not comply with its instructions to render a just verdict or was unduly

rushed in its deliberation. See Chandler v. Florida, 449 U.S. 560, 581 (1981)

(refusing to assume jury impairment absent specific evidence).

Nor does the duration of the jury’s deliberation suggest to the contrary and

show bias. Lawrence is directly on point. There, we explained that “[a]lthough there

was a large amount of evidence [presented], two hours is not so short a time as to

obviate a serious discussion of the issues.” Lawrence, 405 F.3d at 905. Therefore,

we “decline[d] to impute any bias on the part of the jury based on [the two-hour]

period of deliberations.” Id.; cf. United States v. Harris, 51 F.4th 705, 711–12

(7th Cir. 2022) (upholding verdict returned March 17, 2020, on plain error review,

where “[t]he record suggest[ed] . . . that the jurors carefully considered the evidence

before rendering a verdict” and “no evidence [showed] that they rushed a verdict to

68 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 69

go home early”). We similarly decline to impute any jury bias here based on its

eight-hour deliberation.

For the foregoing reasons, we conclude that the district court did not abuse its

discretion by denying Mr. Dermen’s motion for a mistrial on the basis of COVID-19.

C. Alleged Brady Violations

Mr. Dermen contends that the district court erroneously denied his motion for

a new trial under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Mr. Dermen

alleges that the government violated Brady by failing to produce evidence concerning

a key government witness, Zubair Kazi, and another individual, Edgar Sargsyan, who

Mr. Dermen maintains was a cooperating, unindicted co-conspirator. Mr. Dermen

avers that the undisclosed evidence would have undermined confidence in the jury’s

verdicts.

We disagree. At bottom, Mr. Dermen’s Brady arguments fail because the

undisclosed evidence concerning Mr. Kazi and Mr. Sargsyan was immaterial to

Mr. Dermen’s case. Therefore, we affirm the district court’s denial of his Brady

“[I]n the new-trial context[,] we review de novo a district court’s ruling on a

Brady claim, with any factual findings reviewed for clear error.” United States v.

Reese, 745 F.3d 1075, 1083 (10th Cir. 2014).

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“The law governing Brady claims is well established: Due process requires a

new trial if the government withholds evidence that is favorable to the defendant and

material to guilt or punishment.” Id. at 1083. “When the ‘reliability of a given

witness may well be determinative of guilt or innocence,’ nondisclosure of evidence

effecting credibility falls within this general rule.” Giglio v. United States, 405 U.S.

150, 154 (1972) (quoting Napue v. People of State of Ill., 360 U.S. 264, 269 (1959)).

“[I]n order to establish a Brady violation, the defendant bears the burden of

establishing: ‘1) that the prosecution suppressed evidence; 2) that the evidence was

favorable to the accused; and 3) that the evidence was material.’” Smith v. Sec’y of

N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th Cir. 1995) (footnote omitted) (quoting

United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir. 1994)).

The first element of a Brady violation stems from the government’s “duty to

learn of [and disclose] any favorable evidence known to the others acting on the

government’s behalf in the case, including the police.” Kyles v. Whitley, 514 U.S.

419, 437 (1995). Thus, “the ‘prosecution’ for Brady purposes encompasses not only

the individual prosecutor handling the case, but also extends to the prosecutor’s

entire office as well as law enforcement personnel and other arms of the state

involved in investigative aspects of a particular criminal venture.” Sec’y of N.M.

Dep’t of Corr., 50 F.3d at 824 (citation and footnote omitted). “Accordingly, we

impute knowledge of material impeachment evidence to the prosecutor for Brady

purposes when that knowledge is in the possession of other ‘agents of the

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prosecution.’” McCormick v. Parker, 821 F.3d 1240, 1247 (10th Cir. 2016) (quoting

Sec’y of N.M. Dep’t of Corr., 50 F.3d at 825).

Brady’s second element “requires proof the evidence in question was

exculpatory, or favorable, to the defendant.” United States v. Combs, 267 F.3d 1167,

1175 (10th Cir. 2001) (quoting Sec’y of N.M. Dep’t of Corr., 50 F.3d at 825).

“Impeachment evidence . . . satisfies this standard.” Id.

As to the third element, “[w]e have explained that ‘evidence is “material”

within the meaning of Brady when there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have been different.’”

Smith v. Cain, 565 U.S. 73, 75–76 (2012) (quoting Cone v. Bell, 556 U.S. 449, 469–

70 (2009)). “A reasonable probability does not mean that the defendant ‘would more

likely than not have received a different verdict with the evidence,’ only that the

likelihood of a different result is great enough to ‘undermine[] confidence in the

outcome of the trial.’” Id. (alteration in original) (quoting Kyles, 514 U.S. at 434);

see Reese, 745 F.3d at 1083 (“Put another way, we ask whether the absence of the

withheld evidence at trial ‘shakes our confidence in the guilty verdict.’” (quoting

United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011)). “To make the

materiality determination, we view the suppressed evidence’s significance in relation

to the record as a whole.” Cooper, 654 F.3d at 1120 (quoting Hughes, 33 F.3d

at 1252).

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After the jury returned its verdict against him, Mr. Dermen filed a series of

motions for a judgment of acquittal or in the alternative for a new trial under Federal

Rules of Criminal Procedure 29 and 33; the motions alleged, inter alia, the same

Brady violations concerning the evidence related to Mr. Kazi and Mr. Sargsyan that

Mr. Dermen now asserts on appeal.15 As related to Mr. Kazi, Mr. Dermen averred

that the government violated Brady by failing to disclose: (i) the contents of

Mr. Kazi’s cell phone; (ii) facts contained in a civil fraud lawsuit Mr. Kazi had filed

against another individual, Santiago Garcia, and several related entities; and

(iii) relevant information known to agents of a law enforcement group that was

commonly known by the acronym “LA BEST.”16 Additionally, Mr. Dermen sought

disclosure of the plea agreement of Edgar Sargsyan, an associate of Mr. Dermen’s

and Mr. Kazi’s, who was indicted in the Central District of California for conspiracy

to commit bank fraud, among other charges. Mr. Sargsyan’s plea agreement was

15 On April 7, 2020, Mr. Dermen moved for a judgment of acquittal or, in the alternative, for a new trial, based on the insufficiency of the evidence under Rules 29 and 33 of the Federal Rules of Criminal Procedure. On April 29, 2020, he submitted a supplemental Rule 33 motion for a new trial based on newly discovered evidence and to reopen discovery. Then, on May 21, 2020, he filed a supplemental motion requesting Rule 33 relief and to reopen discovery. And on August 3, 2020, he filed another supplemental motion for a new trial and to reopen discovery. The government opposed Mr. Dermen’s motions. On February 10, 2021, the district court denied each of these motions. 16 LA BEST is the acronym for the Los Angeles Border Enforcement Security Task Force. It was formed by Homeland Security Investigations (“HSI”), an arm of the Department of Homeland Security, and includes HSI agents and state and local law enforcement officers. 72 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 73

unsealed on April 28, 2020, after Mr. Dermen’s trial had concluded. After reviewing

it, Mr. Dermen argued that the government violated Brady by failing to disclose the

plea agreement.

On February 10, 2021, the district court issued a memorandum opinion and

order denying Mr. Dermen’s motions for a judgment of acquittal or in the alternative

for a new trial. In its opinion, the district court held that the government had not

violated Brady by failing to disclose the information related to Mr. Kazi based on the

court’s findings that the government did not have an obligation to obtain an image of

Mr. Kazi’s cell phone, LA BEST was not part of the prosecution team in

Mr. Dermen’s case, and—most relevant here—the undisclosed evidence was not

material to Mr. Dermen’s convictions. Similarly, the district court held that

Mr. Sargsyan’s plea agreement was “entirely irrelevant” to Mr. Dermen’s convictions

and thus not material to his trial. Aplt.’s App., Vol. IV, at 831.

By way of background, we provide an overview Mr. Kazi’s testimony, each of

the four Brady issues Mr. Dermen raises on appeal, and the district court’s

dispositions in the following sections.

Mr. Kazi’s trial testimony focused on the facts undergirding Counts 3–7

(money laundering). The primary subject of Mr. Kazi’s testimony was the

$11.2 million loan that he received from Mr. Dermen in 2013, his arrangement with

Mr. Dermen to repay it, and several such repayment transactions which formed the

basis for Counts 3–7. According to Mr. Kazi’s testimony, in 2013, he told

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Mr. Dermen that he was concerned about a debt that he owed to G.E. Capital, which

was collateralized, in part, by an $11.2 million personal guarantee that had come due.

Mr. Kazi testified that he asked Mr. Dermen for help with the $11.2 million debt

payment. Mr. Kazi stated that Mr. Dermen told Mr. Kazi “he would take care of it”

and that “he was going to ask Jacob [Kingston] to send the money.” Aplt.’s App.,

Vol. XIX, at 4438. Shortly thereafter, Washakie wired G.E. Capital $11.2 million.

Mr. Kazi also testified at length about the discussions he had with Mr. Dermen

regarding repayment of the $11.2 million loan. Mr. Kazi stated that Mr. Dermen

instructed him to discuss repayment matters with him alone, not with Jacob Kingston.

Mr. Dermen and Mr. Kazi ultimately agreed that Mr. Kazi would pay back the $11.2

million loan to SBK USA, a company controlled by Mr. Dermen, in monthly

payments of $70,000. Further, Mr. Dermen proposed the collateral structure of the

loan, in which liens were placed on several of Mr. Kazi’s properties, and Washakie

and Lion’s Aviation, another of Mr. Dermen’s companies, were listed as the liens’

beneficiaries. Additionally, Mr. Kazi testified that in 2013, at Mr. Dermen’s

direction, he opened a bank account that included Mr. Dermen as a signatory and

falsely listed Mr. Dermen as an officer of one of Mr. Kazi’s businesses.

Mr. Kazi testified that he deposited $2 million into the account, and Mr.

Dermen later withdrew $2 million in two separate transactions. Mr. Kazi testified

that he made seventeen payments totaling $3.3 million on the $11.2 million loan

between February 2015 and July 2016. Subsequent testimony and documentary

evidence established that the $11.2 million loan was made with fraud proceeds.

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On cross-examination, defense counsel impeached Mr. Kazi’s credibility at

length. The defense introduced evidence that a $135 million tax assessment against

Mr. Kazi had been reduced by the IRS to $500,000 on the eve of trial. This line of

questioning suggested that Mr. Kazi was testifying on behalf of the government as

part of an undisclosed cooperation agreement, although Mr. Kazi denied that he was

doing so. Mr. Kazi also testified that he stopped making payments on the $11.2

million loan in July 2016 after an agent of the Department of Homeland Security

(“DHS”) had advised him to do so because of a pending investigation involving Mr.

Dermen. Additionally, the defense cross-examined Mr. Kazi at length about his

inconsistent grand jury testimony.

On appeal, Mr. Dermen alleges that the government violated Brady by failing

to disclose (i) the contents of Mr. Kazi’s cell phone, (ii) facts contained in a civil

fraud lawsuit that Mr. Kazi filed against another individual, Santiago Garcia, and

several related entities, and (iii) relevant information known to LA BEST agents.

Each alleged violation and the district court’s dispositions are summarized below.

During discovery, Mr. Kazi’s attorney gave the government screenshots of

messages from his phone, and the government forwarded them to Mr. Dermen.

Defense counsel then asked whether the government had imaged the contents of Mr.

Kazi’s phone. The government responded that it had not. In his motion to compel

discovery, Mr. Dermen argued that the government committed a Brady violation by

failing to create a forensic image of Mr. Kazi’s cell phone and provide the data to the

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defense because the phone was in the government’s constructive control. The district

court found no discovery violation, reasoning that the government did not have an

obligation to obtain evidence from third parties.

b.

On March 13, 2020, after jury deliberations had begun in Mr. Dermen’s trial,

Mr. Kazi and an entity he controlled filed a civil lawsuit in the Southern District of

Texas against Santiago Garcia, several related companies controlled by Mr. Garcia,

and an unnamed individual (“John Doe”)—who either was a federal law enforcement

officer in the Los Angeles, California area or was impersonating one. The complaint

alleged that Mr. Garcia and his companies, along with John Doe, defrauded Mr. Kazi

of $3.1 million by promising to sell him government assets, including vehicles, at a

discounted price. The complaint further alleged that agents of the government

informed Mr. Garcia that Mr. Kazi’s cooperation “in a criminal matter in Utah” was

necessary if they approved the sale of various vehicles and airplanes. Aplt.’s App.,

Vol. III, at 634 ¶¶ 45–47 (Kazi Civil Compl., filed March 13, 2020). Mr. Dermen

argued below that the facts detailed in this lawsuit were directly relevant to Mr.

Kazi’s credibility and motive as a witness, and that Mr. Kazi’s potential belief that he

“had $3 million on the line” for his cooperation with the government influenced his

testimony. Aplt.’s App., Vol. III, at 616 (Def.’s Notice of Suppl. Mot. for New Trial,

filed Apr. 29, 2020).

The government has maintained that it was not aware of the transactions or

lawsuit between Mr. Kazi and Mr. Garcia until Mr. Dermen filed a new trial motion

76 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 77

asserting Brady claims. But in his motion to compel discovery, Mr. Dermen argued

that the government’s failure to notify him of the alleged scheme amounted to a

Brady violation. Mr. Dermen asserted that the prosecution team for the government

knew about the scheme because Mr. Garcia claimed that he was working with John

Doe to gain access to government assets. Mr. Dermen contended that John Doe

worked for LA BEST, which had independently opened its own investigation into

Mr. Dermen and his associates. And based on the parallel investigations and Mr.

Garcia’s alleged contact with the LA BEST agent, Mr. Dermen argued that the

government had constructive knowledge about Mr. Garcia’s scheme against Mr. Kazi

because LA BEST was functionally part of the prosecution team in Mr. Dermen’s

case, and, as such, the LA BEST agent’s knowledge was imputed to the government.

The district court rejected Mr. Dermen’s theory. Specifically, the court found

that the government did not violate its discovery obligations because LA BEST was

not part of the government’s prosecution team related to the instant offenses, and,

additionally, that evidence of the alleged Garcia scheme was not material to Mr.

Dermen’s case.

c.

In his motion to compel, Mr. Dermen also sought from the government all

materials related to the LA BEST investigation of him conducted in Los Angeles,

including any memoranda of the interviews conducted by LA BEST agents. The

district court denied his request, finding that “members of LA BEST . . . are not

members of the prosecution team in this case.” Aplt.’s App., Vol. IV, at 840.

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Mr. Dermen also sought production of Mr. Sargsyan’s plea agreement. Mr.

Sargsyan acted as Mr. Dermen’s lawyer, owned Pillar Law Group, and was CEO of

SBK USA from late 2014 until 2016. Notably, Pillar Law Group served as an

intermediary between Mr. Kazi and SBK USA for some of Mr. Kazi’s loan

repayments to Mr. Dermen. Importantly, however, Mr. Sargsyan did not testify in

Mr. Dermen’s trial.

Before trial, Mr. Dermen sought discovery of a plea agreement that Mr.

Sargsyan entered into in a separate case brought by the U.S. Attorney’s Office for the

Central District of California (“USAO-CDCA”). In the agreement, Mr. Sargsyan

pleaded guilty to conspiracy to commit bank fraud, bribing two federal officials, and

making false statements to federal officials. The conspiracy involved nearly $1

million in fraudulent credit card charges, which were paid, in part, to Pillar Law

Group.

On January 29, 2020, the government informed Mr. Dermen that the

prosecution team had received a copy of Mr. Sargsyan’s plea agreement from USAO-

CDCA, reviewed the agreement, and determined that it did not contain any

discoverable information; therefore, the government declined to produce the

agreement absent a court order. After the parties raised the issue during trial, the

district court ordered ex parte briefing regarding the discoverability of the plea

agreement and ordered the government to submit ex parte a summary of the relevant

facts contained in the “Factual Basis” section of the plea agreement.

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After reviewing these submissions, the district court determined that the plea

agreement and the facts contained therein were irrelevant and thus not discoverable.

As pertinent here, the district court said the following:

The court finds that Mr. Sargsyan’s plea agreement is simply not relevant to the case on trial. Nothing in the factual basis for the plea relates in any way to charges against [Mr. Dermen] or to the payments . . . that were deposited into the client trust account of the Pillar Law Group for the benefit of [Mr.] Dermen. Rather, they relate to completely independent schemes in which Mr. Sargsyan was involved; schemes that are wholly unrelated to [Mr.] Dermen or to the money laundering counts asserted against him here.

The Court was initially persuaded by the [d]efense’s argument that the plea agreement would help show that it was Mr. Sargsyan, and not [Mr.] Dermen, who had received the interest payments on the $11.2 million loan . . . . However, after carefully reviewing the plea agreement in light of the [d]efense’s theory as articulated in its ex parte briefing, the Court does not see any evidence within the factual basis that is at all relevant to this theory. In fact, the plea agreement does not contain any references to the loan or interest payments associated with it. Thus, the Court finds that the agreement has no potential exculpatory value.

Aplt.’s App., Vol. VII, at 1406 (Order Regarding Denial of Defense Mot. to Compel

Produc. of Witness Plea Agreement, filed March 13, 2020) (emphases added).

After trial, the plea agreement was filed publicly, and the defense reviewed it.

In a subsequent motion, Mr. Dermen argued that the government’s failure to disclose

the plea agreement violated Brady because the information contained in the plea

agreement impacted Mr. Dermen’s decision not to call Mr. Sargsyan in his case-in-

chief. The district court denied Mr. Dermen’s motion, again finding that the factual

basis for Mr. Sargsyan’s plea agreement was “simply not relevant” to Mr. Dermen’s

case because the facts related to “completely independent schemes in which Mr.

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Sargsyan was involved; schemes wholly unrelated to [Mr.] Dermen or the money

laundering counts asserted against him here.” Aplt.’s App., Vol. IV, at 836

(quotation omitted). “In short,” the district court concluded, “the Sargsyan plea

agreement evidence was not material because there is not a reasonable probability

that the result of the trial would have been different if the evidence had been

disclosed to [Mr. Dermen].” Id. at 837.

Mr. Dermen challenges the district court’s findings on appeal. Specifically,

Mr. Dermen argues that the district court erred by failing to compel disclosures of

evidence under Brady regarding Mr. Kazi—that is, the contents of Mr. Kazi’s phone,

the facts contained in Mr. Kazi’s lawsuit against Mr. Garcia, and information known

by LA BEST agents—and also Mr. Sargsyan’s plea agreement. Mr. Dermen

maintains that this evidence was exculpatory and would have undermined confidence

in the jury’s verdict.

We are unpersuaded by these arguments. Mr. Dermen’s Brady arguments fail

on materiality grounds—viz., Mr. Dermen fails to show that “the absence of the

withheld evidence at trial ‘shakes our confidence in the guilty verdict.’” Reese, 745

F.3d at 1083 (quoting Cooper, 654 F.3d at 1120). Even though the district court did

not always reach the materiality question in rejecting Mr. Dermen’s Brady

challenges, “it is axiomatic that ordinarily we may affirm on ‘any ground that finds

support in the record.’” United States v. Garcia, 946 F.3d 1191, 1207 (10th Cir.

2020) (quoting United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994)).

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Accordingly, we proceed to discuss and reject each of Mr. Dermen’s Brady

challenges—concluding that he cannot make a sufficient showing of materiality.

Mr. Dermen argues that Mr. Kazi’s credibility was material because he “was a

key witness regarding five of [the] ten counts of the indictment.” Aplt.’s Opening

Br. at 64. And he maintains that “[t]he details of [Mr.] Kazi’s deal with [Mr.] Garcia,

obtaining high-value assets at below market prices in exchange for cooperation

against [Mr.] Dermen wholly undermined any credible accusation [Mr.] Kazi made

against [Mr.] Dermen at trial.” Id. at 64–65. Moreover, Mr. Dermen continues, the

“treasure trove of exculpatory information that was on [Mr.] Kazi’s phone” including

“communications with [Mr.] Garcia . . . and LA[ ]BEST agents . . . could have been

used to cross-examine [Mr.] Kazi and IRS [Special Agent] Washburn to . . . ‘attack []

the integrity of the investigation.’” Id. at 65 (quoting Kyles, 514 U.S. at 435). Stated

succinctly, Mr. Dermen argues that the details of Mr. Kazi’s deal with Mr. Garcia,

information about the LA BEST investigation, and the image of Mr. Kazi’s phone

were material as impeachment evidence.

It is well-established that “[i]mpeachment evidence is considered exculpatory

for Brady purposes.” United States v. Torres, 569 F.3d 1277, 1282 (10th Cir. 2009).

But we are mindful that impeachment evidence “may not be material if the State’s

other evidence is strong enough to sustain confidence in the verdict.” Cain, 565 U.S.

at 76. We assume without deciding here that the Kazi evidence at issue could be

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deemed favorable and suppressed for purposes of Brady. And thus the narrow

question presented is whether this evidence’s “significance in relation to the record

as a whole” would cause it to “shake[] our confidence in the guilty verdict”—that is,

whether the evidence can be properly considered material. Cooper, 654 F.3d at 1120

(first quoting Hughes, 33 F.3d at 1252; and then quoting United States v. Smith, 534

F.3d 1211, 1223 (10th Cir. 2008)).

Mr. Dermen cannot make this materiality showing. This is so for two reasons.

The first—and most persuasive—reason is that Mr. Kazi’s testimony was

corroborated by voluminous evidence presented at trial. More specifically, Mr.

Kazi’s testimony about the loan transactions underlying Counts 3–7 was corroborated

by extensive witness testimony and documentary evidence, including testimony from

Jacob and Isaiah Kingston and corroborative bank records showing that, at Mr.

Dermen’s direction, Jacob Kingston used fraud proceeds to transfer $11.2 million

from Washakie to Mr. Kazi’s creditor. It was also supported by testimony from

Jacob Kingston and corroborative documentary evidence demonstrating that Mr.

Dermen and Mr. Kazi agreed that repayment would flow to Mr. Dermen. Mr.

Dermen argues that Jacob and Isaiah Kingston both had “substantial credibility

problems.” Aplt.’s Opening Br. at 66. But their testimony, too, was corroborated by

IRS Special Agent Washburn’s summary evidence and volumes of financial records.

Thus, Mr. Kazi’s testimony hardly stood alone as proof of Mr. Dermen’s guilt as to

Counts 3–7; rather, his testimony was extensively corroborated by “the record as a

whole.” Cooper, 654 F.3d at 1120 (quoting Hughes, 33 F.3d at 1252).

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The second reason that Mr. Dermen cannot show materiality is that Mr. Kazi

was thoroughly impeached as a witness at trial. Specifically, Mr. Kazi recanted

portions of his grand jury testimony on direct. And on cross-examination, the

defense further impeached him with questions about: the alleged agreement with the

IRS to reduce a $135 million civil tax assessment against him to $500,000 on the eve

of trial, his admission that he stopped making payments on the loan in 2016 based on

information he received from a federal agent, and his inconsistent grand jury

testimony. Let’s accept for purposes of argument the (questionable) assumption, as

Mr. Dermen contends, that the additional impeachment evidence that Mr. Dermen

sought would not have been merely cumulative but, instead, would have provided a

new basis for impeachment. See Cooper, 654 F.3d at 1120 (“[E]vidence that

provides a new basis for impeachment is not [considered] cumulative and could well

be material.” (second alteration in original) (quoting United States v. Robinson, 583

F.3d 1265, 1273 (10th Cir. 2009))). Even so, in light of the extensive impeachment

that Mr. Kazi was otherwise subjected to, we have difficulty discerning how

additional lines of impeachment would have significantly altered the jury’s overall

perception of Mr. Kazi’s credibility.

Specifically, the jury would have already been aware of—and had an

opportunity to factor into its verdict—the fact that Mr. Kazi had significant

credibility problems based on his alleged side deals with the government, Mr. Kazi’s

incentives to testify against Mr. Dermen, and his prior inconsistent statements. In

other words, we are hard pressed to believe that there is a reasonable probability that

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the additional impeachment evidence that Mr. Dermen proffers would have

significantly altered the calculus of the jury’s decision-making, such that the absence

of this evidence would undermine confidence in the outcome.

According to Mr. Dermen, United States v. Torres, 569 F.3d 1277 (10th Cir.

2009), should guide our analysis. We disagree. There, the defendant filed a motion

for a new trial under Federal Rule of Criminal Procedure 33, claiming that the

government suppressed certain evidence relating to a confidential informant (“CI”).

See id. at 1278–80. The defendant’s conviction arose out of a controlled

methamphetamine buy with the CI. See id. at 1279. In his motion for a new trial, the

defendant argued that he was entitled to a new trial based on his discovery of

impeachment evidence related to the CI, which the government had failed to disclose

prior to his trial. See id. at 1280. The district court denied the motion because the

evidence was “merely impeaching,” and the defendant appealed. Id. at 1278, 1282.

We reversed, holding that “[m]erely because other impeachment evidence was

presented does not mean that additional impeachment evidence is cumulative; rather,

this is a case where the agents’ identification is weak at best and no physical

evidence exists to link the defendant to the alleged crime.” Id. at 1284. Mr. Dermen

argues that Torres is dispositive because here, as in Torres, “[Mr.] Kazi’s

undisclosed bias against [Mr.] Dermen would have placed ‘the whole case in such a

different light as to undermine confidence in the verdict.’” Aplt.’s Opening Br. at

66–67 (quoting Kyles, 514 U.S. at 435).

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But the circumstances of this case are a far cry from those in Torres.

Consequently, Mr. Dermen’s reliance on Torres is unavailing. Specifically, Torres

involved impeachment evidence that undermined the credibility of a witness whose

testimony was the primary evidence linking the defendant to the basis of the crime

(i.e., the narcotics buy at issue). See id. at 1284 (“The government’s near-total

reliance on the testimony of the CI to establish that [Defendant] was indeed the

person participating in the controlled buy requires a new trial.”). Mr. Dermen’s

Brady argument stands in stark relief. Unlike the CI in Torres, Mr. Kazi’s testimony

was only a small part of the evidence that the government used to establish Mr.

Dermen’s guilt of Counts 3–7; that testimony was extensively corroborated by other

witness testimony and documentary evidence. This was not a situation, as in Torres,

where the government’s proof was “weak at best” and “no [other] evidence exists to

link the defendant to the alleged crime.” Id.

For the foregoing reasons, we conclude that Mr. Dermen’s Brady arguments

related to Mr. Kazi are unpersuasive. In our view, the district court did not err in

finding that the government did not violate Brady; the evidence at issue was not

material.

Mr. Dermen argues that Mr. Sargsyan’s plea agreement was material with

respect to Counts 3–7 because “evidence of Sargsyan’s own criminal conduct and his

efforts to incriminate [Mr.] Dermen to save himself would have undermined the

government’s narrative that [Mr.] Sargsyan was acting in concert with Jacob

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[Kingston] and [Mr.] Dermen to launder funds” through Pillar Law Group and SBK

USA. Aplt.’s Opening Br. at 70. But to the extent that facts from the plea agreement

would have come into evidence, it is unclear from Mr. Dermen’s arguments how they

would “shake[] our confidence in the guilty verdict[s]” for Counts 3–7. Reese, 745

F.3d at 1083.

At the outset, we note that Mr. Dermen’s materiality argument is strongly

undercut by the fact that Mr. Sargsyan did not testify as a witness at trial; in other

words, there was no testimony to impeach. Rather, Jacob and Isaiah Kingston, Mr.

Kazi, and IRS Special Agent Washburn testified as to the transactions between Pillar

Law Group and SBK USA.

Moreover, Mr. Sargsyan’s role in the money-laundering scheme at issue was

comparatively minor. Mr. Sargsyan owned Pillar Law Group and served as CEO of

SBK USA, which was owned by Mr. Dermen. Pillar Law Group served as an

intermediary for three of the loan repayments—those at issue in Counts 4, 5, and 6.

Those funds were ultimately transferred to an account of Mr. Dermen’s company,

SBK USA. Pillar Law Group’s intermediary role in the money laundering scheme

was thus comparatively minor—and, as noted, evidence necessary to establish that

role did not depend on Mr. Sargsyan’s testimony. And more importantly, it is far

from obvious why Mr. Sargsyan’s involvement in a separate bank fraud scheme

would have had any bearing on his participation in those repayment transactions.

In sum, Mr. Sargsyan did not play a sufficiently significant role—in the

offense conduct or the trial itself—for the facts in his plea agreement to be relevant.

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Therefore, Mr. Dermen has not made a sufficient showing for us to find error in the

district court’s determination that Mr. Sargsyan’s plea agreement was not

discoverable. We agree with the district court: “in relation to the record as a whole,”

Cooper, 654 F.3d at 1120, Mr. Sargsyan’s plea agreement was not material because it

is irrelevant to Mr. Dermen’s case.

Because the unproduced evidence concerning Mr. Kazi and Mr. Sargsyan was

not material, we find no error in the district court’s determination that no Brady

violation occurred.

D. Alleged Improper Expert Witness Testimony

Mr. Dermen argues that the district court erred by admitting improper expert

testimony under the guise of summary testimony four times. Specifically, he asserts

that an IRS Special Agent improperly testified based on technical methods and

specialized knowledge and experience when he opined that the funds involved in Mr.

Dermen’s financial transactions were proceeds of specified unlawful activities.

At the outset, however, we conclude that only two of Mr. Dermen’s expert-

testimony arguments are preserved. Concerning the merits of those arguments that

are properly before us, we conclude that the district court did not abuse its discretion

in admitting the summary testimony over Mr. Dermen’s objection. Accordingly, Mr.

Dermen’s expert witness arguments are unavailing.

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“The Tenth Circuit ‘review[s] de novo whether the district court applied the

proper standard in admitting expert testimony.’” United States v. Cushing, 10 F.4th

1055, 1078 (10th Cir. 2021) (alteration in original) (quoting United States v.

Avitia-Guillen, 680 F.3d 1253, 1256 (10th Cir. 2012)). “We then review the trial

court’s actual application of the standard in deciding whether to admit or exclude an

expert’s testimony for abuse of discretion.” Id. at 1078–79 (quoting United States v.

Roach, 582 F.3d 1192, 1206 (10th Cir. 2009)); see also James River Ins. Co. v. Rapid

Funding, LLC, 658 F.3d 1207, 1212 (10th Cir. 2011) (“We review a district court’s

determination regarding the admissibility of evidence under an abuse of discretion

standard.” (quoting United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir.

2008))). “If we conclude that the district court abused its discretion in admitting the

testimony, we must then determine whether the error was harmless.” James River,

658 F.3d at 1206. “An erroneous admission of evidence is harmless unless it had a

substantial influence on the outcome or leaves one in grave doubt as to whether it had

such effect.” Id. (quoting United States v. Yeley–Davis, 632 F.3d 673, 685 (10th Cir.

2011)); accord United States v. Dazey, 403 F.3d 1147, 1167 (10th Cir. 2005).

“[I]f the defendant did not make a contemporaneous objection to the admission

of testimony . . . then the district court’s decision is reviewed for plain error,” United

States v. Brooks, 736 F.3d 921, 929–30 (10th Cir. 2013)—provided the defendant

argues for plain error on appeal, In re Syngenta AG MIR 162 Corn Litig., 61 F.4th

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1126, 1181 (10th Cir. 2023) (explaining that “one also may waive appellate review of

an issue by not arguing it”). To prevail under the plain error standard, Mr. Dermen

must show “(1) error, (2) that is plain [i.e., clear or obvious], which (3) affects his

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Cristerna-Gonzalez, 962 F.3d

1253, 1260 (10th Cir. 2020) (quoting United States v. Adams, 888 F.3d 1134, 1136

(10th Cir. 2018)); accord United States v. Olano, 507 U.S. 725, 732 (1993).

“Our preservation rules are part of the ‘winnowing process’ of litigation that

permits a court to ‘narrow what remains to be decided.’” United States v. Walker,

918 F.3d 1134, 1151 (10th Cir. 2019) (quoting Exxon Shipping Co. v. Baker, 554

U.S. 471, 487 n.6 (2008)). Under that process, “[w]hen an appellant fails to preserve

an issue and also fails to make a plain-error argument on appeal, we ordinarily deem

the issue waived (rather than merely forfeited) and decline to review the issue at all—

for plain error or otherwise.” United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir.

2019). Similarly, “we generally do not consider arguments made for the first time on

appeal in an appellant’s reply brief and deem those arguments waived.” Id. at 1197.

However, our preservation rules are discretionary. “[W]hen an error is obvious

enough and satisfies Federal Rule of Criminal Procedure 52(b), we may exercise our

discretion to recognize the error ‘notwithstanding briefing deficiencies.’” Id. at 1198

(quoting United States v. Courtney, 816 F.3d 681 (10th Cir. 2016)). “But we will

only exercise our discretion if it ‘permit[s] the appellee to be heard and the

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adversarial process to be served.’” Id. (alteration in original) (quoting United States

v. Isabella, 918 F.3d 816, 844 (10th Cir. 2019)).

Mr. Dermen’s challenges concern Federal Rules of Evidence 1006, 701, and

703. Federal Rule of Evidence 1006 permits the use of a “summary, chart, or

calculation to prove the content of voluminous writings . . . that cannot be

conveniently examined in court.” A summary, chart, or calculation must be based on

admissible documents, but those documents need not be actually admitted. See

United States v. Samaniego, 187 F.3d 1222, 1223 (10th Cir. 1999) (“The materials

upon which the summary is based need not themselves be admitted into evidence.

Admission of summaries, however, is conditioned on the requirement that the

evidence upon which they are based, if not admitted, must be admissible.” (citation

omitted)).

Federal Rule of Evidence 701 establishes the requirements for lay witness

testimony. Under Rule 701, lay witness testimony must be: “(a) rationally based on

the witness’s perception; (b) helpful to clearly understanding the witness’s testimony

or to determining a fact in issue; and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Federal Rule of Evidence 702,

in turn, provides that “[a] witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an opinion or otherwise

if,” inter alia, “the expert’s scientific, technical, or other specialized knowledge will

help the trier of fact to understand the evidence or to determine a fact in issue.”

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The relationship between Rules 701 and 702 is central to Mr. Dermen’s

challenge. The two rules create a distinction between lay testimony, which is

circumscribed by Rule 701, and expert testimony, which is subject to Rule 702.

“Rule 701 ‘does not permit a lay witness to express an opinion as to matters which

are beyond the realm of common experience and which require the special skill and

knowledge of an expert witness.’” James River, 658 F.3d at 1214 (quoting Randolph

v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979)). Therefore, a witness

can testify under Rule 701 to “elementary mathematical operations,” id.; however,

opinions based on “technical judgment” and “[k]nowledge derived from previous

professional experience fall[] squarely within the scope of Rule 702 and thus by

definition outside of Rule 701,” id. at 1215; see also Cristerna-Gonzalez, 962 F.3d at

1259 (10th Cir. 2020) (“Although a law-enforcement officer’s testimony based on

knowledge derived from the investigation of the case at hand is typically regarded as

lay testimony, opinion testimony premised on the officer’s professional experience as

a whole is expert testimony.” (emphasis added)). Rule 702 “‘establishes a standard

of evidentiary reliability’ and places the trial court in the role of gatekeeper.”

Cushing, 10 F.4th at 1079 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579, 590 (1993)).

Before trial, the government notified Mr. Dermen that it intended to introduce

summary exhibits and testimony. The summary exhibits were charts and tables,

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which were to be used to diagram and aggregate transactions that took place between

various actors in the alleged biofuel tax credit fraud. The summary exhibits were

based on underlying financial documents and other documentary evidence. Summary

witness testimony was to be offered to explain the charts and tables.

Mr. Dermen objected to some of the summary exhibits on the grounds that

they were argumentative and unduly prejudicial. The district court provisionally

admitted the exhibits, finding that “organizing the complex financial information in a

graphic presentation is not argumentative under Rule 1006,” and “the risk of

confusing the jury does not substantially outweigh the probative value of the

diagrams at issue.” Aplee.’s Suppl. App., Vol. V, at 975 (Order Regarding Def.’s

Objs. to Gov’t’s Ex. List, dated Jan. 24, 2020). Notably, Mr. Dermen did not object

to any of the documents underlying the summary exhibits, nor did he argue that the

summary exhibits or proposed testimony were improper under Federal Rules of

Evidence 701 or 702.

Pursuant to the district court’s order, IRS Special Agent Washburn was sworn

in as a summary witness for the government on March 3, 2020. Agent Washburn

testified that he was present in his capacity as “the designated representative for the

government,” pursuant to his duties as an agent of the IRS, which included

“investigat[ing] [] potential violations of the United States tax code as well as other

related financial crimes, such as money laundering” and “prov[ing] or show[ing] that

funds that were obtained through a specified unlawful activity were used in a

financial transaction.” Aplt.’s App., Vol. XXI, at 5016–17. Agent Washburn

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explained that he received specialized money-laundering training as a component of

his training as an agent.

Agent Washburn testified that he was asked to review numerous summary

exhibits—some of which were prepared by him and some of which were prepared by

other IRS investigators—to verify their accuracy. He also explained that he had

reviewed the documentary evidence underlying the summaries—including bank

records, IRS records, and records from an online trading company. In total, Agent

Washburn reviewed records from fifty-five different bank accounts, and his four-day

testimony focused on charts and tables that summarized these documents. He

testified on direct examination about the summary exhibits and their preparation, and

he was extensively cross-examined about his methodology and the transactions

summarized in the exhibits.

The parties agree that Mr. Dermen made two contemporaneous objections to

Agent Washburn’s testimony, on the theory that Agent Washburn was improperly

testifying as an expert. The first occurred on direct examination. Agent Washburn

was testifying as to Government Exhibit 2-2, a table summarizing various transfers

between Washakie and SBK USA, and the documents underlying the table, which

included various wire transfer and bank deposit receipts. Government Exhibit 2-2

related to a summary exhibit, Government Exhibit 10-1, that depicted the flow of

funds, including fraud proceeds, that were used to purchase the Huntington Beach

house, as charged in Count 10.

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Explaining the exhibit, Agent Washburn testified that he traced the March 20,

2015, transfer of $8,550,000 from Washakie to SBK USA back to “two $82 million

[U.S. Treasury] checks,” ($164 million, in total), which “were deposited into the

Washakie account” four days prior. Aplt.’s App., Vol. XXI, at 5044. The two

Treasury checks Agent Washburn referenced were relevant because they were

evidence of fraud proceeds derived from the biofuel tax credit scheme.

Defense counsel’s first objection followed thereafter:

[THE GOVERNMENT:] How certain are you that this 8.55 million -- how certain are you that that came from the proceeds of one of these claims made to the Internal Revenue Service?

MR. GERAGOS: There’s an objection as to certainty. . . . It’s meaningless. He’s not here as an expert. He’s here as a summary witness.

THE COURT: Why don’t you rephrase it.

[THE GOVERNMENT:] Is there any doubt in your mind that this 8.55 million came from the two Treasury checks that were deposited four days earlier?

MR. GERAGOS: Same objection, no foundation. He’s not an expert.

THE COURT: Overruled.

THE WITNESS: No.

Id. at 5045–46. The objected-to testimony and exhibit were introduced by the

government as one of several transactions that laid an evidentiary foundation for the

money laundering alleged in Count 10.

Mr. Dermen made his second contemporaneous objection during Agent

Washburn’s continued direct examination the next day. Agent Washburn was

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testifying as to Government Exhibit 8-1, which is a chart summarizing the flow of

funds for the purchase of the Sandy, Utah house and the financial documents

underlying it.

Mr. Dermen’s objection proceeded as follows:

[THE GOVERNMENT:] [L]et’s go back to the right-hand side of [Government Exhibit] 8-1. Based on your review of the underlying financial records here, the right-hand side, was the $3 million that was used to pay off the $3 million loan in account number 1352, were you able to trace that back to U.S. Treasury checks?

[THE WITNESS:] Yes. Those are proceeds from Treasury deposits.

MR. GERAGOS: Objection. He’s not only not a summary witness, he’s an expert.

Aplt.’s App., Vol. XXI, at 5117. This objected-to testimony was related to the

money laundering alleged in Count 8.

Additionally, Mr. Dermen points us to a third and fourth objection; however,

the government contends that these objections do not constitute viable challenges

under Rule 702.

The third objection occurred on March 9, during the government’s redirect

examination of Agent Washburn and after Mr. Dermen’s cross-examination. During

a colloquy between the parties and the court, out of the presence of the jury, defense

counsel recalled his prior objection, Aplt.’s App., Vol. XXIII, at 5479 (“[D]uring the

testimony of this witness, I had objected that not only was he testifying as a summary

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witness but also as an expert. The Court overruled that objection.”), and asked for

clarification from the government as to whether Agent Washburn was testifying as a

fact witness or summary witness. Specifically, defense counsel expressed concern on

whether he had received mixed signals on the subject: “Apparently [Agent

Washburn] is no longer a summary witness which is news to me because we have

now done the direct and the cross and we’re on redirect and apparently now the

Government takes the position that he is not a summary witness.” Id. at 5480.

The government offered the following clarifications:

[THE GOVERNMENT:] We have just an issue of semantics. Of course we all agree that [Agent] Washburn is testifying to summaries which sometimes is colloquially called summary witness. But the summaries that he is testifying to are summaries of financial analysis that he has either done or meticulously adopted.

So it is still factual testimony but it’s factual testimony that is substantially aided by the use of summaries.

Id. at 5488. The government further clarified that Agent Washburn was

“summarizing [] the financial analysis that he did, or the financial analysis of other

agents on a team that he has meticulously checked and adopted”—not “summarizing

trial testimony.” Id. at 5489–90.

The fourth and final objection occurred later that day, also during the

government’s redirect examination. Agent Washburn was testifying about

Government Exhibit 10-2, which is a flow chart summarizing the flow of funds used

to purchase the Huntington Beach house, and about the documents underlying the

summary. The objection proceeded as follows:

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[THE GOVERNMENT:] Did the method that you used to trace the funds emanating from the U.S. Treasury checks obtained pursuant to the mail fraud scheme take into consideration some of the transactions in these accounts or all of them?

[THE WITNESS:] All of them.

[THE GOVERNMENT:] What is the name of the method? Does it have a name of the method that you used when you analyzed the financial transactions in the Washakie accounts, United Fuel Supply accounts and the Merrill Lynch account?

MR. GERAGOS: Objection, calls for an expert conclusion.

THE COURT: Well, I think he can testify as to what he did. I don’t know that the name is particularly important.

[THE GOVERNMENT:] All right.

THE COURT: So I’ll sustain the objection to that extent.

Aplt.’s App., Vol. XXIII, at 5510–11 (emphasis added).

Mr. Dermen does not cite to any other specific objections on the record.

The district court included the following jury instruction as to Agent

Washburn’s summary tables, charts, and testimony:

Certain summaries have been admitted into evidence and certain witnesses have testified as to those summaries. Such testimony and exhibits are received in evidence where voluminous writings, documents and records are involved. You may consider these summaries and testimony as you would any other evidence admitted during the trial and give them such weight or importance, if any, you feel they deserve. In making that decision, you may consider evidence about the way in which they were prepared.

Aplt.’s App., Vol. II, at 295 (Final Jury Instrs., filed Mar. 10, 2020).

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Before we reach the merits of Mr. Dermen’s challenges to Agent Washburn’s

testimony, we briefly address Mr. Dermen’s lack of preservation as to the third and

fourth objections discussed supra. The government contends that those objections

were not based on Rule 702—which is the rule that Mr. Dermen invokes on appeal.

We agree. The third purported objection merely sought clarification as to whether

Agent Washburn was testifying as a fact witness or a summary witness, and the

government clarified he was testifying as the latter. Defense counsel’s general

reference to a prior Rule 702 expert-witness objection did not constitute a new,

contemporary Rule 702 objection. And, as the government notes, the fourth

objection “was an objection to [Agent] Washburn naming the method he used to

analyze various financial transactions, which the court sustained.” Aplee.’s Resp. Br.

at 92 n.13 (emphasis added). So, Mr. Dermen has no grounds for complaint as to the

fourth objection.

Accordingly, we turn to the merits of the two Rule 702 objections that Mr.

Dermen has preserved for our review. Our review is for abuse of discretion. See

James River, 658 F.3d at 1212.

We consider Mr. Dermen’s contention that Agent Washburn’s objected-to

testimony was improper expert witness testimony under Federal Rule of Evidence

702. Mr. Dermen marshals two arguments. First, he argues that the objected-to

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testimony transcended elementary mathematical operations into the realm of

technical, specialized knowledge. Second, Mr. Dermen asserts that Agent

Washburn’s testimony runs afoul of our decision in James River because his

testimony about “tracing” fraud proceeds was improperly based on his accounting

expertise, IRS experience, and specialized training in money laundering. 17

We consider each of Mr. Dermen’s arguments in turn—viz., that Agent

Washburn’s testimony about “tracing” fraud proceeds (1) transcended elementary

17 Mr. Dermen argues that “[f]inancial testimony including tracing akin to [Agent] Washburn’s has been reviewed by this court as expert testimony,” in United States v. [Raymond] Torres, 53 F.3d 1129 (10th Cir. 1995), and United States v. Kaatz, 705 F.2d 1237 (10th Cir. 1983). Aplt.’s Opening Br. at 76–77. In [Raymond] Torres, the government used an IRS special agent as an expert witness and did not present the agent as a summary witness. See 53 F.3d at 1141–42. In Kaatz, the government chose to qualify an IRS special agent as an expert witness prior to presenting summary testimony. See 705 F.2d at 1245. But neither case speaks to the issue presented in Mr. Dermen’s case—that is, whether an IRS agent’s summary testimony as to “tracing” fraud proceeds is proper under Rule 701. A summary witness does not necessarily need to be qualified as an expert witness under our law. See United States v. Ray, 370 F.3d 1039, 1042, 1048 (10th Cir. 2004), cert. granted, judgment vacated, 543 U.S. 1109 (2005), and opinion reinstated in part, 147 F. App’x 32 (10th Cir. 2005) (affirming the district court’s decision to admit summary testimony and charts from a non-expert witness, a law enforcement officer, in a “particularly complex” drug case, where the witness “present[ed] summary testimony and exhibits regarding the activities of the alleged conspiracy and the amounts of drugs for which each defendant was responsible”); see also United States v. Proctor, 166 F.3d 349, 1998 WL 812057, at *4 (10th Cir. 1998) (unpublished) (finding no abuse of discretion where a district court admitted “various summaries based on evidence which had already been admitted during the trial” and allowed the IRS special agent who prepared them to testify as a non-expert witness as to “the process by which he compiled the summaries,” which included “invoices . . . and checks”). Therefore, [Raymond] Torres and Kaatz are inapposite to the narrow issue presented here.

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mathematical operations into the realm of technical, specialized knowledge and (2)

was improperly based on his accounting expertise, IRS experience, and specialized

training in money laundering.

Mr. Dermen rests his arguments on James River. There, we identified four

factors to guide our review. See James River, 658 F.3d at 1214. First, we considered

whether the testimony met the requirements of Rule 701—that is, whether the

testimony was “(a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and (c) not

based on scientific, technical, or other specialized knowledge.” FED. R. EVID. 701;

accord James River, 658 F.3d at 1213. Second, we asked whether the testimony was

based on professional experience. See James River, 658 F.3d at 1215. We explained

that lay witnesses may rely on “a limited amount of expertise,” provided their

“opinions or inferences . . . could be reached by any ordinary person.” Id. at 1214

(first quoting United States v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995); and then

quoting LifeWise Master Funding v. Telebank, 374 F.3d 917, 929 (10th Cir. 2004)).

Third, we looked to whether the expert relied on “a technical report by an outside

expert.” Id. at 1215. Fourth, we considered how the Federal Rules of Evidence

generally classify the testimony at issue. See id.

Applying these factors, we held that the district court abused its discretion in

admitting as lay opinion testimony what was in fact expert opinion testimony “based

on technical or specialized knowledge.” Id. at 1214, 1222. The facts of James River

concerned a purported lay witness testifying regarding a “dilapidated, condemned,

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[thirty-nine]-year old” building’s value. Id. at 1214. The witness used a report

authored by a construction company he had hired and a “depreciation factor” as the

basis for his opinion. Id. at 1211–12. Applying the four factors enumerated supra,

we found that this was improper expert opinion testimony. See id. at 1214. In

reversing the district court’s decision to admit the testimony, we explained that the

witness’s reliance on the report transcended “his own professional experience,” id. at

1215, and the witness’s depreciation calculations crossed the threshold from lay to

expert testimony because the calculations required “[t]echnical judgment . . . in

choosing among different types of depreciation.” Id. at 1214. We also concluded

that the witness’s professional experience as a licensed real estate broker left him

“better situated” than the ordinary property owner to offer valuation testimony. Id. at

1215. Lastly, we noted that “the Federal Rules of Evidence generally consider

landowner testimony about land value to be expert opinion.” Id. We now consider

each of Mr. Dermen’s arguments through the lens of James River.

We first address Mr. Dermen’s argument that the objected-to “tracing”

testimony improperly transcended elementary mathematical operations to require

technical, specialized knowledge. This argument implicates the first James River

factor—whether the testimony satisfies the requirements of Rule 701.

In James River, we contrasted two of our prior decisions to illustrate the

distinction between proper and improper calculations in lay testimony. See id. at

1214. The first was Bryant v. Farmers Insurance Exchange, 432 F.3d 1114 (10th

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Cir. 2005). In Bryant, we considered whether the district court had properly

excluded large portions of an affidavit at summary judgment as inadmissible under

the Federal Rules of Evidence. See id. at 1121. The affidavit stated that the affiant

had personally reviewed 103 audit reports, compiled data from the reports into a

spreadsheet, and calculated the averages of several numerical scores that were

included in the audit data. See id. We concluded that the district court’s exclusion of

portions of the affidavit was improper, explaining that:

The Federal Rules of Evidence clearly permit the contents of voluminous writings to be presented in the form of a “chart, summary, or calculation.” Fed. R. Evid. 1006 (emphasis added). Taking a simple average of 103 numbers, though technically a statistical determination, is not so complex a task that litigants need to hire experts in order to deem the evidence trustworthy. A mathematical calculation well within the ability of anyone with a grade-school education is, in our opinion, more aptly characterized as a lay opinion under Fed. R. Evid. 701.

Id. at 1124.

In James River, we contrasted Bryant with LifeWise Master Funding v.

Telebank, 374 F.3d 917 (10th Cir. 2004). In LifeWise, we concluded that the chief

executive officer (“CEO”) of a company who lacked the qualifications to testify as

an expert could not offer opinion testimony on the company’s lost profits as a lay

witness because he lacked “sufficient personal knowledge . . . of the factors on which

[he] relied to estimate lost profits.” 374 F.3d at 929. The CEO’s estimates of lost

profits were based on sophisticated economic models. See id. at 928–29. Though we

suggested the CEO could offer lay testimony if he based his “valuations . . . on

straightforward, common sense calculations,” we explained that he could not testify

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to the “rolling averages, S-curves, and compound growth rates” that the CEO

admitted he had not personally used but which nevertheless informed his estimates.

Id. at 929–30.

Distilling these prior holdings, we explained in James River that whereas “a

witness should [] be[] permitted under Rule 701 to testify to elementary mathematical

operations,” like the “simple average” we considered in Bryant, a witness may not

testify about more “technical, specialized subjects,” like the “sophisticated economic

models” at issue in LifeWise, which employed “moving averages, compounded

growth rates, and S-curves.” James River, 658 F.3d at 1214 (quotations omitted)

(first citing Bryant, 432 F.3d at 1124; and then citing LifeWise, 374 F.3d at 929).

Therefore, as applied to the case before the court there, we concluded in James River

that a witness may not calculate depreciation under Rule 701 because that operation

“requires more than applying basic mathematics,” and “[t]echnical judgment is

required in choosing among different types of depreciation.” Id.

Applying James River—particularly its discussion of Bryant and LifeWise—to

Mr. Dermen’s first argument, we conclude that the objected-to “tracing” testimony is

proper testimony under Rule 701. More specifically, that testimony is more akin to

taking a simple average (in the vein of Bryant) than testifying about a more complex

mathematical model (like LifeWise and James River itself).

Agent Washburn explained his “tracing” methodology during an exchange

following Mr. Dermen’s fourth objection. Although Mr. Dermen’s fourth objection

itself is not properly before us—for the reasons that we discussed supra—we believe

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that this exchange is illuminating for our analysis of Mr. Dermen’s preserved

objections. Describing the process he used to create the summary chart in

Government Exhibit 10-2 (the chart summarizing the flow of funds used to purchase

the Huntington Beach house), Agent Washburn testified that he used “a spreadsheet

of all the transactional data from [] various accounts” to “maintain a balance” of

fraud proceeds. Aplt.’s App., Vol. XXIII, at 5512. For each withdrawal, he would

“reduce [the] [fraud] proceeds balance” and then “follow that money to the next

account . . . and [update the] balance on that [subsequent] account.” Id. Simply put,

“whenever money was withdrawn, that [account’s] balance would be reduced” and

“[w]henever money that [he] could trace back to [fraud] proceeds was deposited,

th[e] balance would go up.” Id. at 5513. In other words, Agent Washburn’s

“tracing” method amounted to balancing the ledgers of a fifty-five-account

checkbook.

Though undoubtedly laborious in its implementation, this methodology hardly

requires “technical or specialized knowledge” to execute. James River, 658 F.3d at

1214. To the contrary, “anyone with a grade-school education” can use addition,

subtraction, and a spreadsheet to summarize bank account ledgers. Bryant, 432 F.3d

at 1124; see also James River, 658 F.3d at 1214 (“[A] person may testify as a lay

witness only if his opinions or inferences do not require any specialized knowledge

and could be reached by any ordinary person.” (quoting LifeWise, 374 F.3d at 929)).

Of course, repeating this process across more than fifty accounts to trace fraud

proceeds involves a certain level of volume-based complexity. But summaries of

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“voluminous” evidence are precisely the kind of testimony that Rule 1006

contemplates, FED. R. EVID. 1006 (permitting the use of a “summary, chart, or

calculation offered to prove the content of voluminous admissible writings . . . that

cannot be conveniently examined in court”), and, akin to Bryant, that kind of

volume-based complexity does not convert otherwise lay testimony into expert

testimony, see 432 F.3d at 1124.

The summary exhibits that Agent Washburn was explaining prior to Mr.

Dermen’s first and second objections—the ones at issue here—followed the same

“tracing” methodology that Agent Washburn later elaborated on in connection with

the fourth objection. The subject of Mr. Dermen’s first objection is Agent

Washburn’s testimony concerning Government Exhibit 2-2. That exhibit is a table

summarizing various transfers between Washakie and SBK USA. As Agent

Washburn’s methodological explanation makes clear, Government Exhibit 2-2 uses

rudimentary math akin to the “simple average” at issue in Bryant. 432 F.3d at 1124.

Agent Washburn simply maintained a ledger of account balances, using addition and

subtraction, to track flows of funds between the two entities and testified about the

results of that simple math. The exhibit’s probative value derives not from its

technical complexity, but from the simple transactions it “traces”—which are

summarized in the exhibit in a clear and digestible format. See FED. R. EVID. 1006.

The summary exhibit at issue in Mr. Dermen’s second objection, Government Exhibit

8-1—the flow chart depicting the flow of fraud proceeds used for the purchase of the

Sandy, Utah house—relies on the same simple methodology. The chart depicts a

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series of transactions between a group of entities. The underlying arithmetic is the

same as that used in Government Exhibit 2-2: addition and subtraction to track a

series of account ledgers. And Agent Washburn’s objected-to testimony regarding

the exhibit reflected this simple math.

Because the challenged exhibits and summary testimony rely on ledger

balancing—that is, documenting a series of financial transactions in a spreadsheet

using addition and subtraction—we conclude that Mr. Dermen’s first argument is

without legs. More specifically, the district court did not abuse its discretion in

admitting Agent Washburn’s tracing testimony because the testimony did not

transcend elementary mathematical operations or require “technical or specialized

knowledge” to execute. James River, 658 F.3d at 1214. We reject Mr. Dermen’s

first argument.

We turn next to Mr. Dermen’s second argument, which largely implicates the

second James River factor—whether the testimony was based on professional

experience. See James River, 658 F.3d at 1215. We find this argument unavailing.

Whether Agent Washburn’s “tracing” testimony was improperly based on his

accounting expertise, IRS experience, and specialized training in money laundering is

a nuanced question under our precedent. “Rule 701 does not permit a lay witness to

express an opinion as to matters which are beyond the realm of common experience

and which require the special skill and knowledge of an expert witness.” James

River, 658 F.3d at 1214 (quotation omitted). “Thus, ‘[w]hen the subject matter of

106 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 107

proffered testimony constitutes scientific, technical, or other specialized knowledge,

the witness must be qualified as an expert under Rule 702.’” United States v. Draine,

26 F.4th 1178, 1188 (10th Cir. 2022) (alteration in original) (quoting LifeWise, 374

F.3d at 929).

However, the advisory committee notes explain that Rule 701 “does not

distinguish between expert and lay witnesses, but rather between expert and lay

testimony.” FED. R. EVID. 701 advisory committee’s note to 2000 amendment

(italicization omitted). As such, a witness who possesses “scientific, technical or

other specialized knowledge” (and could therefore be considered an expert witness in

certain settings) can testify as a lay witness (i.e., offer lay testimony) so long as the

testimony is not based on such knowledge. Ryan Dev. Co. v. Ind. Lumbermens Mut.

Ins. Co., 711 F.3d 1165, 1170 (10th Cir. 2013) (quoting FED. R. EVID. 701(c)).

Our authority has traced the distinctions between particularized and

specialized knowledge under Rules 701 and 702. In Ryan Development Co., for

example, the plaintiff-appellant solicited its owner’s “long-time accounting firm” to

assist its recovery under an insurance policy. Ryan Dev. Co., 711 F.3d at 1167–68.

Two accountants at that firm—both of whom were familiar with the company’s

business—handled the company’s claims for lost income and tangible personal

property. See id. at 1168. We concluded that the district court did not abuse its

discretion in permitting the accountants (who arguably could offer expert testimony

in some settings) to testify as lay witnesses under Rule 701, where they relied only on

107 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 108

“basic arithmetic, personal experience, and no outside expert reports in calculating

lost income and other claims for coverage.” Id. at 1170.

According to the rule’s drafters, the result in Ryan squares with the approach

of “most” courts. FED. R. EVID. 701 advisory committee’s note to 2000 amendment

(“[M]ost courts have permitted the owner or officer of a business to testify to the

value or projected profits of the business [under Rule 701] without the necessity of

qualifying the witness as an accountant, appraiser, or similar expert. Such opinion

testimony is admitted not because of experience, training or specialized knowledge . .

. , but because of the particularized knowledge that the witness has by virtue of his or

her position . . . .” (emphasis added) (citation omitted)). Compare Draine, 26 F.4th

at 1187 (noting that “‘a law-enforcement officer’s testimony based on knowledge

derived from the investigation of the case at hand is typically regarded as lay

testimony’ under Rule 701” (quoting Cushing, 10 F.4th at 1080)), with United States

v. Starks, 34 F.4th 1142, 1170 (10th Cir. 2022) (“Knowledge drawn from experience

in a specialized job—including, as here, a law enforcement officer’s knowledge of

drug trafficking patterns and practices—falls ‘squarely’ within the scope of expert

testimony under Rule 702” (emphasis added) (quoting Cristerna-Gonzalez, 962 F.3d

at 1259)).

Under this authority, the narrow question presented by Mr. Dermen’s second

argument is whether Agent Washburn’s “tracing” testimony was properly based on

his particularized knowledge derived from his position in Mr. Dermen’s

investigation under Rule 701, or improperly based on his specialized knowledge

108 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 109

derived from his accounting expertise, IRS experience, and training in money

laundering.

Agent Washburn undisputedly did possess expertise in accounting, tax, and

money laundering. However, we conclude that, like the accountant-witnesses in

Ryan Development Co., Agent Washburn did not testify from his specialized

knowledge of those subjects in offering the objected-to testimony. Rather, he

testified based on his particularized knowledge derived from his experience as an

investigator in Mr. Dermen’s case.

For example, when Agent Washburn testified that he was certain that the

$8,550,000 transfer from Washakie to SBK USA was derived from “two Treasury

checks that were deposited four days earlier,” Aplt.’s App., Vol. XXI, at 5046, he

was not speaking from his specialized knowledge of money laundering “patterns and

practices,” Starks, 34 F.4th at 1170. Instead, Agent Washburn was speaking from his

particularized knowledge of the flow of fraud proceeds in Mr. Dermen’s case—

knowledge that was derived from his role as an investigator in that case. See

Cristerna-Gonzalez, 962 F.3d at 1259 (“Although a law-enforcement officer’s

testimony based on knowledge derived from the investigation of the case at hand is

typically regarded as lay testimony, opinion testimony premised on the officer’s

professional experience as a whole is expert testimony.” (emphasis added)).

Therefore, we conclude that Mr. Dermen’s second argument is unpersuasive.18 Agent

18 We also note that the third James River factor also supports the district court’s decision to admit the challenged testimony. Agent Washburn did not rely on 109 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 110

Washburn did not improperly testify based on his “specialized knowledge.” Draine,

26 F.4th at 1188 (quoting LifeWise, 374 F.3d at 929).

We therefore conclude that the district court did not abuse its discretion in

admitting the challenged testimony from Agent Washburn over the defense’s

objection, under Rules 701 and 702. See Cushing, 10 F.4th at 1078–79.

E. Sufficiency of the Evidence

Mr. Dermen argues that the district court erred by denying his motion for

judgment of acquittal on Counts 3–7—which concerned transactions surrounding the

$11.2 million loan that Mr. Dermen extended to Zubair Kazi. More specifically, Mr.

Dermen contends that the evidence was insufficient for a reasonable jury to find him

guilty beyond a reasonable doubt of the second, third, and forth prongs of money

laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i)—that is, he argues the

evidence was insufficient to show that he knew these funds were proceeds of

unlawful activity, that the loan was, in fact, paid with proceeds of his biofuel mail

fraud scheme (i.e., a specified unlawful activity), and that the loan transaction was

designed to disguise or conceal the source of the funds. We find his arguments in

“a technical report by an outside expert.” James River, 658 F.3d at 1215. Instead, he relied on documentary evidence and summary exhibits that were prepared by himself and other government investigators in Mr. Dermen’s case. Additionally, because there is no dispute here regarding whether Agent Washburn’s summary testimony and exhibits complied with Rule 1006, the James River fourth factor—how the Federal Rules of Evidence generally classify the testimony at issue—also supports the district court’s decision to admit the challenged testimony. See id.

110 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 111

support of these contentions unpersuasive. The voluminous record in Mr. Dermen’s

case leaves us with no doubt about this conclusion: viewing the evidence in the light

most favorable to the government, a reasonable jury could find Mr. Dermen guilty on

Counts 3–7.

To assess sufficiency of the evidence, conducting de novo review, we

“determine whether viewing the evidence in the light most favorable to the

Government, any rational trier of fact could have found [the defendant] guilty of the

crime beyond a reasonable doubt.” United States v. Shepard, 396 F.3d 1116, 1119

(10th Cir. 2005) (quoting United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th

Cir. 2004)); see United States v. Irving, 665 F.3d 1184, 1193 (10th Cir. 2011); United

States v. Doe, 572 F.3d 1162, 1171 (10th Cir. 2009). We may “not weigh conflicting

evidence” in our review, United States v. Clark, 717 F.3d 790, 805 (10th Cir. 2013)

(quoting United States v. Evans, 318 F.3d 1011, 1018 (10th Cir. 2003)); we

determine only “whether [the] evidence, if believed, would establish each element of

the crime,” United States v. Vallo, 238 F.3d 1242, 1247 (10th Cir. 2001) (alteration

in original) (quoting Evans, 238 F.3d at 589).

To prove money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), the

government must show four elements beyond a reasonable doubt:

(1) that Defendant engaged in a financial transaction;

111 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 112

(2) that Defendant knew that the property involved in that transaction represented the proceeds of his unlawful activities;

(3) that the property involved was in fact the proceeds of that criminal enterprise; and

(4) that Defendant knew that “the transaction [was] designed in whole or in part to conceal or disguise the nature, the location, the source, the ownership or the control” of the proceeds of the specified unlawful activities.

United States v. Garcia-Emanuel, 14 F.3d 1469, 1473 (10th Cir. 1994) (quoting 18

U.S.C. § 1956(a)(1)(B)(i)).19 Proceeds include “any property derived from or

obtained or retained, directly or indirectly, through some form of unlawful activity.”

18 U.S.C. § 1956(c)(9).

Financial transactions involving proceeds include those that are “part of a set

of parallel or dependent transactions, any one of which involves the proceeds of

19 In pertinent part, by its terms, the statute subjects to criminal penalties:

(a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity—

(B) knowing that the transaction is designed in whole or in part—

(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity . . . .

18 U.S.C. § 1956(a)(1)(B)(i) (emphases added). 112 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 113

specified unlawful activity, and all of which are part of a single plan or

arrangement.” 18 U.S.C. § 1956(a)(1). The underlying “specified unlawful activity”

here was the biofuel mail fraud scheme—independently criminalized by 18 U.S.C.

§ 1341—in which Mr. Dermen and his co-conspirators filed false claims with the

government related to biofuel incentives and in which, amongst other modes of

delivery, the mails were used to deliver payouts to them from the U.S. Department of

Treasury. See Aplt.’s App., Vol. I, at 249–50, 266 (Indictment, filed Oct. 19, 2019);

see also United States v. Kennedy, 64 F.3d 1465, 1478 (10th Cir. 1995) (discussing

the nature of a money laundering offense where mail fraud is the underlying specified

unlawful activity).

Counts 3–7 of the indictment charge Mr. Dermen with five counts of money

laundering based on a total of approximately $2.5 million in payments that Mr. Kazi

made on the $11.2 million loan from Mr. Dermen, originally paid by Jacob Kingston.

Counts 3 and 7 related to Mr. Dermen’s $1 million withdrawals from the joint

account that he held with Mr. Kazi, and Counts 4, 5, and 6 were based on interest

payments made by Mr. Kazi to SBK USA.

On March 7, several days before the case was submitted to the jury, Mr.

Dermen filed a Rule 29 Motion for Judgment of Acquittal, arguing that the

government’s evidence was insufficient to prove beyond a reasonable doubt each of

the element of Counts 3–7:

113 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 114

The evidence was insufficient to prove beyond a reasonable doubt that [Mr.] Dermen conducted or attempted to conduct a financial transaction; that the financial transaction involved the proceeds of the mail fraud scheme alleged in Count 1 of the Indictment[;] that he [knew] that the property involved in the[se] financial transaction[s] represented the proceeds of some form of unlawful activity; and that Mr. Dermen conducted or attempted to conduct the financial transaction[s] knowing that [they] w[ere] designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control of the proceeds of unlawful activity.

Aplt.’s App., Vol. II, at 447 (Def.’s Mot. for J. of Acquittal or In the Alternative for a

New Trial, dated March 7, 2020).

On February 10, 2021, the district court denied Mr. Dermen’s Rule 29 motion,

finding “that, viewing the evidence in the light most favorable to the Government,

any rational trier of fact could have found [Mr. Dermen] guilty of Counts 3 through 7

beyond a reasonable doubt.” Aplt.’s App., Vol. IV, at 822.

On appeal, Mr. Dermen argues that there was insufficient evidence to

demonstrate the second, third, and fourth elements of money laundering—viz.,

(2) that Mr. Dermen knew these funds were the proceeds of some form of unlawful

activity, (3) that the funds involved were, in fact, proceeds of a specified unlawful

activity, and (4) that the loan and repayment transactions were designed to disguise

or conceal the source of those funds.20 After addressing a preservation issue and two

20 Perhaps acting out of an abundance of caution, the government briefly offers a rebuttal to any challenge that Mr. Dermen may be mounting to the first element of the money laundering offense—i.e., whether Mr. Dermen engaged in a financial transaction within the meaning of § 1956 (a)(1)(B)(i). See Aplee.’s Resp. Br. at 87–88. However, having carefully reviewed Mr. Dermen’s Opening Brief, we 114 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 115

threshold questions, we address Mr. Dermen’s specific challenges to these elements

and find them unavailing.

Mr. Dermen frames his sufficiency argument through two threshold legal

challenges. First, Mr. Dermen contends that because Mr. Kazi’s repayments of the

$11.2 million loan were not made with fraud proceeds, he cannot be liable under 18

U.S.C. § 1956(a)(1)(B)(i). Second, Mr. Dermen contends that “interest only

payments (i.e., without payment of any principal) as alleged in Counts 4, 5 and 6 do

not constitute . . . ‘the proceeds of some form of unlawful activity.’” Aplt.’s Opening

Br. at 82 (emphasis added) (quoting 18 U.S.C. § 1956(a)(1)). Mr. Dermen cites

United States v. Paley, 442 F.3d 1273 (11th Cir. 2006), and United States v. Christy,

916 F.3d 814 (10th Cir. 2019), to support his position on this point. The government

responds that these arguments are unpreserved. We disagree with the government’s

waiver contention.

see no indication that Mr. Dermen challenges this element on appeal. Indeed, Mr. Dermen assumes arguendo that he directly or indirectly engaged in the transactions at issue. See Aplt.’s Opening Br. at 82 (stating that “assuming arguendo that [Mr.] Dermen exercised some control over these transactions and caused Kazi to make the payments when he did, and from the accounts that he did”). And his Table of Contents, Statement of the Issues, and Summary of the Argument sections of his brief offer not one glimmer to suggest that he challenges this element. See id. at iv (Table of Contents), 2 (State of the Issues), 22 (Summary of the Argument). Therefore, though we do not fault the government for being cautious, we do not detail our thinking on that issue here. Nevertheless, suffice it to say that Mr. Dermen’s decision to stand down on contesting this element is a wise one. The government’s evidence is overwhelming regarding it, and no rational factfinder would struggle in finding this element satisfied. 115 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 116

The government contends that Mr. Dermen waived the foregoing, specific

threshold arguments by not raising them within his general sufficiency-of-the-

evidence challenge before the district court and by failing to argue under our plain

error rubric on appeal. Our caselaw, however, is to the contrary.

We recently considered and rejected a similar preservation challenge. See

United States v. Murphy, 100 F.4th 1184, 1192–95 (10th Cir. 2024). Like the

defendant in Murphy, Mr. Dermen advanced a broad sufficiency-of-the evidence

challenge to Counts 3–7 before the district court, but, as a consequence, “he is not

foreclosed here from building on that argument through the articulation of specific

theories” on appeal. Id. at 1192.

In this regard, we have explained in past decisions that “‘[w]hen a defendant

challenges in district court the sufficiency of the evidence on specific grounds, all

grounds not specified in the motion are waived.’” United States v. Maynard, 984

F.3d 948, 961 (10th Cir. 2020) (emphasis added) (quoting United States v. Goode,

483 F.3d 676, 681 (10th Cir. 2007)). But, in Murphy, we noted that “this rule does

not require ‘specificity of grounds . . . in a Rule 29 motion.’ Rather, it merely

dictates that, ‘where a Rule 29 motion is made on specific grounds, all grounds not

specified are waived.’” Murphy, 100 F.4th at 1193 (emphasis added) (omission in

original) (quoting Goode, 483 F.3d at 681). Thus, “[o]ur precedent makes clear that

defendants do not waive appellate review of discrete theories that build upon broad

arguments made before the district court.” Id. at 1194 (collecting cases). “In other

116 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 117

words, defendants do not waive specific theories by asserting broader, related

arguments in the district court.” Id.

Here, as in Murphy, Mr. Dermen made a generalized Rule 29 challenge to the

money laundering evidence against him, “thereby giving the district court notice that

all potential insufficiency arguments were in play vis-à-vis his [money-laundering]-

related charges.” Id. at 1194. In other words, he argued that the evidence was

insufficient to prove beyond a reasonable doubt the elements of money laundering as

to the transactions charged in Counts 3–7; he “did not go beyond that” by

“identify[ing] discrete arguments (or theories) to support his position.” Id. By

making only general arguments before the district court, Mr. Dermen “avoided

effectively focusing the district court’s decision-making on one specific theory, to the

exclusion of other possible theories.” Id. “Our preservation doctrine on this point is

chiefly concerned with preventing defendants from raising for the first time on appeal

entirely distinct arguments from those presented to the district court.” Id. at 1195

(distinguishing Leffler, 942 F.3d at 1197–1200, cited by the government here, on

these grounds).

Therefore, because Mr. Dermen presented only general sufficiency-of-the-

evidence arguments before the district court, Murphy controls, and Mr. Dermen did

not fail to preserve his specific sufficiency-of-the-evidence arguments on appeal.

Having concluded that Mr. Dermen’s threshold legal arguments are properly

before us, we turn to considering them. Mr. Dermen first argues that the evidence is

117 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 118

insufficient because Mr. Kazi did not repay the $11.2 million loan using fraud

proceeds. This argument is meritless.

Mr. Dermen’s argument is foreclosed by the unambiguous meaning of the text

of 18 U.S.C.A. § 1956(a)(1). The statute specifies that “a financial transaction shall

be considered to be one involving the proceeds of specified unlawful activity if it is

part of a set of parallel or dependent transactions, any one of which involves the

proceeds of specified unlawful activity, and all of which are part of a single plan or

arrangement.” 18 U.S.C.A. § 1956(a)(1) (emphasis added). Here, the government

alleged that the $11.2 million loan that Mr. Dermen conveyed to Mr. Kazi through

Jacob Kingston and Washakie was derived from Mr. Dermen’s share of proceeds

from fraudulent tax credits filed with the IRS. The record also shows that Mr. Kazi

made several repayments on that loan. A payment/repayment money laundering

scheme is a “parallel” transaction under that statutory term’s plain meaning. See

Parallel, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/

dictionary/parallel (last visited June 9, 2025) (defining “parallel” as “interdependent

in tendency or development”). In other words, if “one” of the transactions—the loan

payment—“involve[d] [] proceeds” from the fraudulent biofuel, mail fraud scheme,

then the repayments—were “part of a single plan or arrangement” of Mr. Dermen to

launder the proceeds of that fraud. § 1956(a)(1).

Thus, Mr. Dermen’s argument runs counter to the unambiguous meaning of the

statute. See United States v. Hall, 434 F.3d 42, 50–51 (1st Cir. 2006) (concluding

that the evidence was sufficient to show money laundering where a loan was made

118 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 119

using proceeds and the repayment of the loan constituted a transaction involving

proceeds); United States v. Apazidis, 523 F. App’x 17, 19 (2d Cir. 2013) (“[W]e

reject [the defendant’s] argument that, because the money used in the transactions for

which he was convicted came from repayment of a loan of the unlawful proceeds,

and not the original proceeds themselves, the jury could not convict.”); cf. United

States v. Lovett, 964 F.2d 1029, 1035 (10th Cir. 1992) (concluding that a series of

banking loans secured by fraud proceeds were “closely related” to an initial purchase

of a house with fraud proceeds).

Next, we consider Mr. Dermen’s argument that interest payments “do not

constitute . . . ‘the proceeds of some form of unlawful activity.’” Aplt.’s Opening Br.

at 82 (quoting 18 U.S.C. § 1956(a)(1)). This argument is similarly unavailing

because it ignores the statute’s definition of “proceeds.”

Here, too, we are guided by the text of § 1956(a)(1), which provides that a

financial transaction is deemed “one involving the proceeds of specified unlawful

activity if it is part of a set of parallel or dependent transactions, any one of which

involves the proceeds of specified unlawful activity, and all of which are part of a

single plan or arrangement.” 18 U.S.C. § 1956(a)(1). In our view, the application of

this unambiguous text is straightforward in Mr. Dermen’s case. Interest is dependent

on principal; thus, logic demands that interest is a “dependent transaction,” relative to

the principal being lent. Id. And where, as here, the loan principal is alleged to be

“property derived from . . . some form of unlawful activity,” 18 U.S.C. § 1956(c)(9)

119 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 120

(emphasis added)—that is, the “specified unlawful activity” of the mail fraud

scheme—interest payments are similarly “derived from,” and, at a minimum,

“involve[],” the “proceeds of specified unlawful activity,” id. (emphasis added), viz.,

“some form of unlawful activity,” § 1956(a)(1). In other words, both interest and

principal payments of the money laundering scheme are covered by the statute. To

hold otherwise would be to effect an unwarranted contortion of unambiguous

statutory text.

Mr. Dermen cites United States v. Paley, 442 F.3d 1273 (11th Cir. 2006), and

United States v. Christy, 916 F.3d 814 (10th Cir. 2019), for support. But Paley is

inapposite: there, the Eleventh Circuit interpreted the United States Sentencing

Guidelines—not 18 U.S.C. § 1956. See Paley, 442 F.3d at 1277–78 (considering

whether “[t]he district court, in calculating the total amount of the laundered funds

for which [the defendant] was accountable under United States Sentencing

Guidelines § 2S1.1 (Nov. 2004), included the appreciated value of [] stock, instead of

just the initial investment amount”).

Christy is also distinguishable. Speaking of another case, we noted that “[w]e

rejected the ‘argument that the money laundering statute should be interpreted to

broadly encompass all transactions, however ordinary on their face, which involve

the proceeds of unlawful activity.’” Christy, 916 F.3d at 847 (quoting United States

v. Sanders, 929 F.2d 1466, 1472 (10th Cir. 1991)). However, “the money laundering

statute [does] reach commercial transactions intended (at least in part) to disguise [1]

the relationship of the item purchased with the person providing the proceeds and [2]

120 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 121

[the fact] that the proceeds used to make the purchase were obtained from illegal

activities.” Id. Here, as explicated infra, the loan payment and repayments between

Mr. Dermen and Mr. Kazi are not alleged to be mere “ordinary” instances of “money

spending,” within the meaning of Christy; rather, they are alleged to have been

purposefully intended to disguise or conceal fraud proceeds. Therefore, neither

Paley nor Christy support Mr. Dermen’s tenuous reading of § 1956(a)(1).

Accordingly, we conclude that interest payments are encompassed by the plain

meaning of 18 U.S.C. § 1956(a)(1).

We are left with Mr. Dermen’s more element-focused sufficiency-of-the-

evidence arguments that challenge his convictions on Counts 3–7. Recall that Mr.

Dermen argues that there was insufficient evidence to demonstrate the second, third,

and fourth elements of money laundering. We address those elements below. We

find dispositive the testimony of Jacob Kingston, Isaiah Kingston, Mr. Kazi, and IRS

Special Agent Washburn, as well as the voluminous documentary evidence entered

by the government at trial. Viewing this evidence in the light most favorable to the

government, we conclude that a rational trier of fact could have found Mr. Dermen

guilty of Counts 3–7 beyond a reasonable doubt. See Shepard, 396 F.3d at 1119.

The evidence was sufficient for a reasonable jury to find that Mr. Dermen

knew the property involved in the loan-and-repayment transaction represented “the

121 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 122

proceeds of some form of unlawful activity.” 18 U.S.C. § 1956(a)(1)(B)(i).21 Mr.

Dermen’s contention that there was insufficient evidence that he “knew these funds

were proceeds of unlawful activity” is wholly without merit. Aplt.’s Opening Br. at

80 (bold typeface omitted).

Specifically, Jacob Kingston testified that Mr. Dermen directed him to file the

false claims that caused the $23.1 million deposit into Washakie’s bank account in

June 2013. This testimony is supported by documentary evidence showing

fraudulent tax credit claims and corresponding payments from the U.S. Department

21 Occasionally, in his Opening Brief, Mr. Dermen suggests that the government has to prove beyond a reasonable doubt that he knew that the transactions involved proceeds of a “specified unlawful activity,” § 1956(a)(1). See, e.g., Aplt.’s Opening Br. at 82 (arguing that “there was no evidence that Dermen knew these payments were proceeds of a specified unlawful activity”); see also id. at 22 (“The evidence was legally insufficient to prove that (1) the funds involved in these alleged loan repayments were proceeds of a ‘specified unlawful activity,’ (2) [Mr.] Dermen had knowledge of this . . . .” (emphasis added)). However, such a suggestion would run afoul of the plain language of the statute and our precedent. The statute merely requires that a defendant know that the transaction involved “some form of unlawful activity,” not that this activity constituted a “specified unlawful activity.” 18 U.S.C. § 1956(a)(1)(B)(i); see Christy, 916 F.3d at 845 (discussing the “mens rea” requirement for § 1956(a)(1)); see also United States v. Maher, 108 F.3d 1513, 1526 (2d Cir. 1997) (“The first paragraph of § 1956(a)(1) is plainly crafted to distinguish between the actual source of laundered money and the defendant's knowledge as to the source of that money. The language of that paragraph requires proof that the laundered property ‘in fact’ involved the proceeds of ‘specified unlawful activity,’ as that term is defined in subsection (f), but it does not require proof that the defendant knew what that unlawful activity was.” (emphasis added)). To be sure, this legal distinction may have little practical consequence in this case. Nevertheless, it is clear from other portions of his brief that Mr. Dermen understands the government’s burden of proof on this element. See, e.g., Aplt.’s Opening Br. at 2 (noting in his Statement of the Issues, the government’s requirement to prove “that [Mr.] Dermen knew these funds were proceeds of unlawful activity”); 81 (reciting the elements of his motion for judgment of acquittal). Therefore, we need not consider this matter further. 122 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 123

of Treasury to Washakie. Jacob Kingston also testified that the $11.2 million was

part of Mr. Dermen’s share of the proceeds of that unlawful activity. See Aplt.’s

App., Vol. XII, at 2526 (“Q. What was your understanding of how this $11 million

would be treated, [whose] it was? A. It was going to be treated as [Mr. Dermen]’s.”).

And consistent with that testimony, Mr. Dermen instructed Mr. Kazi to repay him,

not Washakie.

As the evidence established, in the 2013 timeframe, Mr. Dermen was the

principal orchestrator of this biofuel mail fraud scheme—resulting in Treasury

checks being delivered to Washakie. Accordingly, when he directed Jacob Kingston

to transmit the $11.2 million to Mr. Kazi’s creditors, a reasonable factfinder could

infer that Mr. Dermen knew that those funds would come from the Washakie bank

account and that this account held the proceeds of some form of unlawful activity

(i.e., the biofuel mail fraud scheme).

In sum, treating the evidence in the record in the light most favorable to the

government, a rational jury could find beyond a reasonable doubt that Mr. Dermen

knew the property involved in the loan-and-repayment transaction represented the

proceeds of his fraudulent biofuel mail fraud scheme involving tax credits—that is,

the proceeds of “some form of unlawful activity.” 18 U.S.C. § 1956(a)(1).

Third, the evidence was sufficient to show that the loan funds involved were,

in fact, the proceeds of a “specified unlawful activity.” See 18 U.S.C.

§ 1956(a)(1)(B)(i). Ample trial testimony and documentary evidence, viewed in the

123 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 124

light most favorable to the government, could establish this element beyond a

reasonable doubt to a rational jury.

Beginning with witness testimony, Jacob and Isaiah Kingston testified that the

loan constituted fraud proceeds. Jacob Kingston testified that he wired $11.2 million

to Mr. Kazi’s creditors, that the money “came from these tax credits that w[ere]

filed,” and that Mr. Kazi repaid the loan to SBK USA. Aplt.’s App., Vol. XII, at

2529 (Jury Trial Tr., held Feb. 10, 2020). Similarly, when asked whether he knew

“where the money came from to send [the $11.2 million] wire,” Isaiah Kingston

replied, “[t]he fraudulent IRS tax credits.” Aplt.’s App., Vol. XVI, at 3641 (Jury

Trial Tr., held Feb. 18, 2020).

Notably, Jacob Kingston agreed in his testimony with the prosecutor’s

statement that “all of these checks received by Washakie Renewable Energy” were

received through “U.S. mails.” Id., Vol. XII, at 2582. Similarly, Isaiah Kingston

testified that, as a result of the fraudulent filing of claims for biofuel tax credits, “a

check came in through the mail roughly every two weeks” from the U.S. Department

of Treasury. Id., Vol. XVI, at 3715–16. This mailing testimony was confirmed by

the government’s summary witness, IRS Special Agent Washburn, who agreed with

the prosecutor’s statement that the government sent Treasury checks to taxpayers

claiming biofuel tax credits “through the United States Mail.” Id., Vol. XXI, at 5040.

Consequently, a rational factfinder could infer that any proceeds of the biofuel fraud

scheme that were wired from Washakie’s bank account had initially been delivered to

Washakie in the form of Treasury checks through the mail.

124 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 125

Relevant to that point, Agent Washburn testified that the summary exhibits and

underlying bank records entered as Government Exhibit 3-1 show that a $11.2

million wire left a Washakie account shortly after $23.1 million in fraud proceeds in

the form of Treasury checks had been deposited into the same account in June 2013.

See id., Vol. XXI, at 5090 (“As you can see, there are two [IRS] checks that total

$23.1 million that were deposited into Washakie Renewable Energy bank account

4874 on June 10th and June 17th of 2013. And then on June 21st, 2013, you can see

the 11.2 million [] was transferred to a[] McDonald Hopkins trust account,” which

was controlled by Mr. Kazi.). This testimony was also corroborated by bank records

documenting the transactions.

Therefore, viewed in the light most favorable to the government, we conclude

that this evidence is sufficient for a rational juror to find beyond a reasonable doubt

that the loan funds were in fact the proceeds of a “specified unlawful activity”—that

is, the biofuel mail fraud scheme. See 18 U.S.C. § 1956(a)(1)(B)(i); see Vallo, 238

F.3d at 1247.

Fourth, and finally, the evidence was sufficient to show that Mr. Dermen knew

that the transaction was designed to “conceal or disguise the nature, the location, the

source, the ownership or the control” of the proceeds of the “specified unlawful

activity”—that is, the biofuel mail fraud scheme involving tax credits. 18 U.S.C.

§ 1956(a)(1)(B)(i). Mr. Dermen argues that “there was no effort to conceal the

source of these funds: liens were recorded on the properties [Mr.] Kazi pledged as

125 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 126

collateral, [Mr.] Kazi sued SBK [USA] . . . to prevent foreclosure on his properties

when repayment went into default, and loan repayments were made into an attorney’s

trust account.” Aplt.’s Opening Br. at 83 (citations omitted). “These actions were

done publicly,” Mr. Dermen continues, and the “‘mechanisms’ through which the

loan and its repayment were structured actually created a higher likelihood that any

illegality would be discovered.” Id. We find these arguments unpersuasive.

“Money laundering is ‘the process by which one conceals the existence, illegal

source, or illegal application of income, and disguises that income to make it appear

legitimate.’” Shepard, 396 F.3d at 1120 (quoting PRESIDENT’S COMMISSION ON

ORGANIZED CRIME, THE CASH CONNECTION: ORGANIZED CRIME, FINANCIAL

INSTITUTIONS, AND MONEY LAUNDERING 7 (Interim Report, Oct. 1984)). “[W]e

construe the money laundering statute as ‘a concealment statute—not a spending

statute.’” Id. (quoting Garcia-Emanuel, 14 F.3d at 1476). “[W]e require the

government to present substantial evidence of concealment for a conviction.” Id. at

1121. “[A]ctions that are merely suspicious and do not provide substantial evidence

of a design to conceal will not alone support a conviction.” Id. (alteration in original)

(quoting Garcia-Emanuel, 14 F.3d at 1475). The following types of evidence may be

indicia of an intent to disguise or conceal illegal proceeds:

statements by a defendant probative of intent to conceal; unusual secrecy surrounding the transaction; structuring the transaction in a way to avoid attention; depositing illegal profits in the bank account of a legitimate business; highly irregular features of the transaction; using third parties to conceal the real owner; a series of unusual financial moves cumulating in the transaction; or expert testimony on practices of criminals.

126 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 127

Id. at 1120 (quoting Garcia-Emanuel, 14 F.3d at 1475–76).

The flow of funds for the Kazi loan, as described in the evidence outlined

supra, bears many of these indicia of intent to conceal or disguise. First, Mr. Dermen

loaned Mr. Kazi $11.2 million in fraud proceeds—but he did not do so directly.

Instead, he instructed Jacob Kingston to pay Mr. Kazi’s creditor from a Washakie

account. This disbursement phase of the transaction—in which Mr. Dermen made

the $11.2 million loan to Mr. Kazi indirectly through the actions of Jacob Kingston

and Washakie—evinced the following: the structuring of the transaction in a way to

avoid attention, the depositing of illegal profits into the bank account of a legitimate

business (i.e., G.E. Capital), and the using of third parties to conceal the real owner

(i.e., Washakie). See Garcia-Emanuel, 14 F.3d at 1475–76.

Furthermore, at the repayment phase, there were further acts indicative of an

intent to disguise or conceal illegal proceeds: Mr. Dermen instructed Mr. Kazi to

make regular payments to Pillar Law Group and/or SBK USA or deposit funds into a

joint account that Mr. Dermen instructed Mr. Kazi to create and to falsely identify

Mr. Dermen as an officer of one of Mr. Kazi’s companies. A rational jury could find

these statements or actions by Mr. Dermen at the repayment phase to be probative of

an intent to disguise or conceal (payments to Pillar Law Group and/or SBK), to

involve unusual secrecy (the joint bank account), and to consist of a series of unusual

financial moves cumulating in the transaction (as demonstrated by the unusual flow

of funds, taken as a whole)—exactly the kind of factors enumerated in Shepard. See

396 F.3d at 1120.

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In sum, the record contains ample evidence of Mr. Dermen’s intent to conceal

or disguise at every step—and was therefore sufficient for a rational jury to find that

Mr. Dermen knew that the transaction was designed in whole or in part to conceal or

disguise the nature, location, source, ownership, or control of the proceeds of the

fraud. See United States v. Magleby, 241 F.3d 1306, 1312 (10th Cir. 2001).

Accordingly, we conclude that the evidence was sufficient to show all of the

contested elements of money laundering in Counts 3–7. Viewing the evidence in the

light most favorable to the government, a rational trier of fact could have found Mr.

Dermen guilty of Counts 3–7 beyond a reasonable doubt. See Shepard, 396 F.3d at

1119.

F. Sentencing

Next, Mr. Dermen argues that the district court improperly calculated his

Guidelines range at sentencing. Specifically, Mr. Dermen contends that—

notwithstanding Tenth Circuit law to the contrary—we should read the Supreme

Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.

United States, 570 U.S. 99 (2013), as mandating that the “total loss amount”—which

determines a defendant’s base offense level under the U.S. Sentencing Guidelines

Manual (“U.S.S.G.” or “Guidelines”) § 2B1.1(b)(1)(P)—be treated as an essential

element of an offense, such that the amount must be found by a jury beyond a

128 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 129

reasonable doubt.22 Under this theory, Mr. Dermen maintains that the district court

erred by determining his base offense level using a total loss amount of “more than

$550,000,000” because the jury did not make a beyond-a-reasonable-doubt factual

finding that the loss was more than $550,000,000. Aplt.’s App., Vol. VIII, at 1707

¶ 250 (Presentence Investigation Report, dated March 29, 2023). Mr. Dermen

contends that his base offense level should have been calculated based on the total

loss attributable to his counts of conviction: $9,513,000. This would have reduced

his total adjusted offense level from 45 to 35 and his Guidelines range from life to

188–235 months’ imprisonment.

Yet Mr. Dermen’s argument is foreclosed by our decisions in United States v.

Zar, 790 F.3d 1036 (10th Cir. 2015), and United States v. Robertson, 946 F.3d 1168

(10th Cir. 2020). In Zar, we held that “[t]he Apprendi/Alleyne rule does not apply” to

“judicial fact finding . . . in the context of determining [a defendant’s] applicable

sentencing range[] under the advisory sentencing Guidelines.” 790 F.3d at 1055

(emphasis added); see also id. at 1054–55 (“The defendant[’s] reliance on Apprendi

and Alleyne is misplaced” because he was not “subject to mandatory minimum

sentences or sentenced beyond the statutory maximums for [his] convictions.”). And

in Robertson, we reiterated that “[t]his issue has been foreclosed in this Circuit.” 946

22 In Apprendi, the Supreme Court held that principles of due process and the Sixth Amendment require that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . must be submitted to a jury.” 530 U.S. at 490. And in Alleyne, the Supreme Court extended Apprendi to hold that any fact that increases the mandatory minimum sentence for a crime must likewise be submitted to the jury. See 570 U.S. at 111–12. 129 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 130

F.3d at 1171–72 (collecting Tenth Circuit cases). “The Supreme Court has not

adopted a heightened standard of proof at sentencing for contested facts, thus we hold

that the correct standard of proof . . . [i]s a preponderance of the evidence.” Id. at

1171.

Mr. Dermen’s argument is therefore foreclosed by our precedent. The district

court calculated his Guidelines range under the correct standard of proof: a

preponderance of the evidence. “Bound by our precedent, we find no error.” Zar,

790 F.3d at 1055.

G. Forfeiture

Mr. Dermen’s final argument is that the district court erred substantively and

procedurally in entering an order of forfeiture and money judgment against him. He

maintains that the district court erred substantively by admitting and relying upon

hearsay evidence in its forfeiture determination and erred procedurally by employing

the preponderance-of-the-evidence standard instead of requiring the government to

prove a nexus between the assets to be forfeited and his crimes beyond a reasonable

doubt. Mr. Dermen preserved these arguments before the district court. However,

we reject them for many of the same reasons that the district court did. He also raises

four new arguments on appeal, which fail at prong two of plain error review: as to

these arguments, Mr. Dermen fails to show any “clear or obvious” error in the district

court’s decision. We discuss and reject each argument below.

130 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 131

In the forfeiture context, we review the district court’s legal conclusions de

novo and its factual findings for clear error. United States v. Bader, 678 F.3d 858,

893 (10th Cir. 2012). Issues that are forfeited in the district court are reviewed for

plain error. See United States v. Rosales-Miranda, 755 F.3d 1253, 1257–58 (10th

Cir. 2014). To prevail under the plain error standard, Mr. Dermen must show “(1)

error, (2) that is plain [i.e., clear or obvious], which (3) affects his substantial rights,

and which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Cristerna-Gonzalez, 962 F.3d at 1260 (quoting Adams, 888 F.3d at

1136).

“[W]e generally do not consider arguments made for the first time on appeal in

an appellant’s reply brief and deem those arguments waived.” Leffler, 942 F.3d at

1197. But “when an error is obvious enough and satisfies Federal Rule of Criminal

Procedure 52(b), we may exercise our discretion to recognize the error

‘notwithstanding briefing deficiencies,’” id. at 1198 (quoting Courtney, 816 F.3d at

684)—“if it ‘permit[s] the appellee to be heard and the adversarial process to be

served,’” id. (alteration in original) (quoting Isabella, 918 F.3d at 844).

After Mr. Dermen’s conviction, the government sought forfeiture and money

judgments against him, consistent with the operative indictment. Among other

property, the government requested forfeiture of the Washakie biofuel plant, the sales

proceeds of the Sandy and Huntington Beach Houses, the outstanding Kazi loan

131 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 132

balance, the assets of SBK USA and several of Mr. Dermen’s other companies, and

two sports cars. Additionally, the government sought a general order of forfeiture,

which included property under the control of foreign companies in Turkey and

Luxembourg, including SBK Turkey.

Mr. Dermen contested these forfeitures during a five-day bench trial, which

was held during the week of November 15–19, 2021. The government put on eight

witnesses to testify to the nexuses between Mr. Dermen’s fraud and money

laundering convictions and the assets the government sought to forfeit: specifically,

Agent Washburn—who again testified as a summary witness and traced fraud

proceeds—and seven fact witnesses offered testimony concerning the property the

government sought to forfeit. At the bench trial, Mr. Dermen argued that the

government was required to prove each nexus beyond a reasonable doubt and that

hearsay was inadmissible.

On November 15, 2022, the district court issued its findings of fact. At the

outset, the court determined that, at the forfeiture stage, the preponderance-of-the-

evidence standard of proof applied and the Federal Rules of Evidence—which

include proscriptions regarding the admission of hearsay evidence—did not.

Additionally, the district court found that general orders of forfeiture were

appropriate for assets transferred abroad. Thereafter, the government moved for a

preliminary judgment of forfeiture and money judgment against Mr. Dermen. In

March 2023, the district court granted the government’s motion—imposing a

$181,847,376 money judgment against Mr. Dermen and entering a preliminary

132 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 133

judgment of forfeiture. The court also imposed a money judgment against Jacob

Kingston.

The preliminary judgment of forfeiture provided that the government:

(1) could further investigate the location of assets that were subject to the general

order of forfeiture and could move to amend the order to include assets located in the

future; (2) could use the net value of properties and assets liquidated under the

judgment to partially satisfy the money judgments; and (3) “need not credit any other

forfeitures applied to Jacob Kingston’s money judgment to [Mr.] Dermen’s money

judgment,” or vice versa. Aplt.’s App., Vol. V, at 1030 (Prelim. Order of Forfeiture,

filed Mar. 24, 2023).

Mr. Dermen raises several challenges to the district court’s order of forfeiture

and money judgment against him—including some arguments raised for the first time

on appeal. At the threshold, Mr. Dermen maintains that the district court erred

substantively by admitting and relying upon hearsay evidence in its forfeiture

determination, and he contends that the court committed a procedural error by

employing the preponderance-of-the-evidence standard instead of requiring the

government to prove the nexus between his criminal convictions and the forfeited

properties beyond a reasonable doubt. See FED. R. CRIM. P. 32.2(b)(1)(A) (“If the

government seeks forfeiture of specific property, the court must determine whether

the government has established the requisite nexus between the property and the

offense. If the government seeks a personal money judgment, the court must

133 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 134

determine the amount of money that the defendant will be ordered to pay.”). We

proceed to the merits of these preserved arguments—reviewing the district court’s

legal conclusions de novo and its factual findings for clear error. See Bader, 678

F.3d at 893. We conclude that these arguments are foreclosed by binding precedent

and the Federal Rules of Evidence.

Mr. Dermen also raises challenges to the money judgment and general order of

forfeiture that he did not present to the district court. First, Mr. Dermen argues that

money judgments in multi-defendant cases were rendered improper by the Supreme

Court’s decision in Honeycutt v. United States, 581 U.S. 443 (2017). Next, Mr.

Dermen attacks the general order of forfeiture. He contends that, under Federal Rule

of Criminal Procedure 32.2, “money judgments and general orders [are] mutually

exclusive remedies, with any general order extinguished by a forfeiture money

judgment.” Aplt.’s Opening Br. at 89–90. And, finally, Mr. Dermen asserts that the

district court “lacked jurisdiction” to enter a general order of forfeiture against “non-

party foreign and domestic . . . entities”—that is, oversees entities to which Mr.

Dermen and his co-conspirators transferred fraud proceeds. Id. at 90 (italicization

omitted). Because these challenges were not presented to the district court—and thus

are not properly preserved for our review—Mr. Dermen can only seek relief under

our rigorous plain error rubric. See, e.g., Rosales-Miranda, 755 F.3d at 1257–58.

However, Mr. Dermen did not seek plain error review in his Opening Brief as

to these challenges. But he does argue under the plain error rubric in his Reply Brief

with sufficient depth for us to make out his argument; consequently, we allow him to

134 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 135

be heard. See Leffler, 942 F.3d at 1197 (quoting Isabella, 918 F.3d at 844).

Nevertheless, we conclude that Mr. Dermen’s arguments fail at prong two of the

plain error rubric—that is, Mr. Dermen fails to show that the court’s assumed error is

“clear or obvious” under well-settled law. Draine, 26 F.4th at 1188–89 (quoting

Rosales-Mireles v. United States, 585 U.S. 129, 134 (2018)). Therefore, we conclude

that Mr. Dermen’s forfeited challenges fail under plain error review.

We begin our forfeiture analysis with Mr. Dermen’s properly preserved

arguments. He contends that the district court applied the wrong standard of proof to

his forfeiture determination—viz., the court erred by employing the preponderance-

of-the-evidence standard instead of requiring the government to prove the nexus

between his criminal convictions and the forfeited properties beyond a reasonable

doubt. This argument fails for the reasons that the district court ably articulated.

The district court concluded that the preponderance-of-the-evidence standard

applied to its nexus finding in light of Libretti v. United States, 516 U.S. 29 (1995).

In Libretti, the Supreme Court held that the Sixth Amendment does not apply to a

criminal forfeiture because it is an aspect of sentencing. See 516 U.S. at 49 (“[O]ur

analysis of the nature of criminal forfeiture as an aspect of sentencing compels the

conclusion that the right to a jury verdict on forfeitability does not fall within the

Sixth Amendment’s constitutional protection.”).

Mr. Dermen argued before the district court that the Supreme Court implicitly

overruled Libretti in Apprendi and Southern Union Co. v. United States, 567 U.S.

135 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 136

343 (2012). See Apprendi, 530 U.S. at 490 (“[A]ny fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.”); Southern Union, 567 U.S. at 360 (“[T]he rule

of Apprendi applies to the imposition of criminal fines.”). The district court was not

persuaded. See Aplt.’s App., Vol. V, at 907 (Mem. Decision: Findings Re Specific

Property Subject to Forfeiture) (“[Mr.] Dermen argues that Apprendi and Southern

Union overruled Libretti sub silentio. Thus, he contends that Libretti’s holding that

the Sixth Amendment does not apply to forfeiture proceedings is no longer good law.

The court disagrees. [Mr.] Dermen has not cited any cases supporting his theory . . .

.”). We are equally unpersuaded on appeal.

As the district court highlighted below, the Tenth Circuit remains one of the

few circuits that has not (for whatever reason) expressly held that Apprendi and

Southern Union did not overrule Libretti. However, in Bader, we held that because

“[f]orfeiture is an element of the sentence imposed following conviction,” 678 F.3d

at 893 (quoting Libretti, 516 U.S. at 38–39), “[a] forfeiture judgment must be

supported by a preponderance of the evidence,” id. Our decision in Bader was

published in 2012, twelve years after Apprendi, so we may infer that nothing in

Apprendi caused us to believe a higher, beyond-a-reasonable-doubt standard applied

to a forfeiture judgment. To be sure, Bader was published approximately two months

before Southern Union, so we cannot make a similar inference as to Southern Union:

that is, we cannot infer that Bader saw nothing in Southern Union to disturb its

preponderance-of-the-evidence standard because Southern Union was issued after

136 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 137

Bader. Still, in the years since Apprendi, we have held that “[a] forfeiture judgment

must be supported by a preponderance of the evidence.” United States v. Gordon,

710 F.3d 1124, 1165 (10th Cir. 2013) (quoting Bader, 678 F.3d at 893). And, as the

district court correctly pointed out in its forfeiture order, every circuit court that has

examined this issue has held that Libretti remains binding precedent.23

The weight of persuasive authority then counsels that Libretti controls, and,

more specifically, that Apprendi and Southern Union do not supplant Libretti and

require application of a beyond-a-reasonable-doubt standard. Coupling that

23 See United States v. Keene, 341 F.3d 78, 85–86 (1st Cir. 2003) (rejecting an argument that Apprendi requires proof beyond a reasonable doubt in forfeiture proceedings); United States v. Fruchter, 411 F.3d 377, 381 (2d Cir. 2005) (“Libretti remains the law until the Supreme Court expressly overturns it . . . .”); United States v. Najjar, 300 F.3d 466, 485–86 (4th Cir. 2002) (“[T]here was no fact passed on by the trial judge but not charged in the indictment that would have increased the penalty the defendants faced beyond the statutory maximum penalty. Therefore, the district court did not err in applying a preponderance of the evidence standard.” (citation omitted)); United States v. Gasanova, 332 F.3d 297, 301 (5th Cir. 2003) (“We therefore join all other circuit courts of appeals to consider the question and conclude that statutorily-prescribed forfeiture is warranted upon a showing of a preponderance of the evidence.”); United States v. Corrado, 227 F.3d 543, 550–51 (6th Cir. 2000) (“Accordingly, we reject the defendants’ argument that . . . the district court, as the agreed trier of fact, must make fact determinations based on the ‘beyond a reasonable doubt’ standard.”); United States v. Vera, 278 F.3d 672, 672 (7th Cir. 2002) (“Like the other circuits that have considered this question, we hold that Apprendi does not disturb the rule that forfeiture is constitutional when supported by the preponderance of the evidence.”); United States v. Sigillito, 759 F.3d 913, 935–36 (8th Cir. 2014) (noting that “Libretti continues to control”); United States v. Phillips, 704 F.3d 754, 770 (9th Cir. 2012) (“[E]very Circuit to consider the question has found that Apprendi and its progeny did not alter the rule in Libretti, and Southern Union does not change that determination.”); United States v. Cabeza, 258 F.3d 1256, 1257–58 (11th Cir. 2001) (per curiam) (“Because Apprendi does not apply to forfeiture proceedings, our earlier decisions on the burden of proof in such proceedings remain good law: the burden of proof on a forfeiture count is a preponderance of the evidence.”). 137 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 138

persuasive authority with our own decisions in Bader and Gordon, we are confident

in holding that we may still look to Libretti—even after Apprendi and Southern

Union—for the governing standard, and, as such, a forfeiture judgment must still be

supported only by a preponderance of the evidence. Mr. Dermen’s contrary

contention is without merit.

Next, Mr. Dermen maintains that the district court erred by admitting and

relying upon hearsay evidence in its forfeiture determination. This argument is

meritless. The text of Rule 1101(d)(3) and our precedent interpreting it make clear

that the Federal Rules of Evidence——which include proscriptions regarding the

admission of hearsay evidence—do not apply to sentencing. See FED. R. EVID.

1101(d)(3) (“These rules . . . do not apply to . . . sentencing . . . .”); see United States

v. Ruminer, 786 F.2d 381, 385 (10th Cir. 1986) (“Rule 1101(d)(3) is clear; it

expressly excludes the application of the Federal Rules of Evidence (other than with

respect to privileges) at ‘sentencing.’”); United States v. Scott, 529 F.3d 1290, 1298

(10th Cir. 2008) (“By their own terms, [] the Federal Rules of Evidence do not apply

to sentencing hearings.”); United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir.

2013) (“District courts are not strictly bound by the Federal Rules of Evidence at

sentencing hearings.”). “As a result, ‘hearsay statements may be considered at

sentencing if they bear some minimal indicia of reliability.’” Ruby, 706 F.3d at 1229

(quoting United States v. Damato, 672 F.3d 832, 847 (10th Cir. 2012)); see also

United States v. Browning, 61 F.3d 752, 755 (10th Cir. 1995) (“[The defendant]

argues the district court erred in admitting certain hearsay statements at the

138 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 139

sentencing hearing. Because the Federal Rules of Evidence on hearsay do not apply

at sentencing, this argument must fail.”).

Here, the district court correctly identified Rule 32.2(b)(1)(B) of the Federal

Rules of Criminal Procedure as the relevant standard for admitting evidence relevant

to forfeiture, not the Federal Rules of Evidence. Rule 32.2(b)(1)(B) provides: “The

court’s [forfeiture] determination may be based on evidence already in the record . . .

and on any additional evidence or information submitted by the parties and accepted

by the court as relevant and reliable.” FED. R. CRIM. P. 32.2(b)(1)(B). Under both

Federal Rule of Criminal Procedure Rule 32.2(b)(1)(B) and our precedent setting

aside application of the Federal Rules of Evidence in the sentencing context, hearsay

evidence is generally admissible in a forfeiture proceeding. The district court’s

evidentiary findings properly applied these rules; therefore, we find no error.

We turn next to Mr. Dermen’s unpreserved arguments, beginning with Mr.

Dermen’s challenge to the money judgment entered against him. Mr. Dermen’s first

argument is that money judgments in multi-defendant cases were rendered improper

by Honeycutt. We conclude that, even assuming that there is error at all, Mr. Dermen

fails to show “clear or obvious” error under Honeycutt. Draine, 26 F.4th at 1188–89

(quoting Rosales-Mireles, 585 U.S. 134).

In Honeycutt, the Supreme Court considered “whether . . . a defendant may be

held jointly and severally liable for property that his co-conspirator derived from the

crime but that the defendant himself did not acquire,” under 21 U.S.C. § 853(c)(1),

139 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 140

which provides for criminal forfeitures in certain drug crimes. 581 U.S. at 445. The

Court held that the text and structure of the statute did not authorize blanket joint and

several liability for co-conspirators; rather, “[f]orfeiture pursuant to § 853(a)(1) is

limited to property the defendant himself actually acquired as the result of the

crime.” Id. at 454. Mr. Dermen argues that the district court’s money judgment

contravenes this ruling.

This argument fails at the second prong of the plain error standard because Mr.

Dermen cannot show clear or obvious error. See Draine, 26 F.4th at 1188–89. Our

decision in United States v. Channon, 973 F.3d 1105 (10th Cir. 2020), is

determinative. There, we considered the defendant-appellant’s argument that

Honeycutt “made clear that the criminal forfeiture statute does not permit joint and

several liability.” Id. at 1114. Because the defendant-appellant did not raise the

issue before the district court, we reviewed for plain error. See id. In our analysis,

we noted the “textual difference between § 853 and § 981” and observed “a circuit

split has developed over whether Honeycutt applies to a forfeiture under 18 U.S.C.

§ 981(a)(1)(C).” Id. at 1115.

We held that “because of the split in authority on whether Honeycutt applies to

a § 981 forfeiture”—an issue as to which neither the Tenth Circuit nor the Supreme

Court has ruled—“we cannot rely on Honeycutt as the basis for obvious error.” Id.;

see also United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006) (“If neither

the Supreme Court nor the Tenth Circuit has ruled on the subject, we cannot find

plain error if the authority in other circuits is split.”); United States v. Cingari, 952

140 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 141

F.3d 1301, 1305–06 (11th Cir. 2020) (concluding that the defendant-appellants could

not demonstrate an obvious error under Honeycutt because they needed to “show that

it plainly applies to civil asset forfeiture under 18 U.S.C. § 981(a)(1)(C)”). Mr.

Dermen’s Honeycutt argument is thus foreclosed by Channon at prong two.

In the alternative, Mr. Dermen argues that “a money judgment may be imposed

only to the extent that direct forfeitures are shown insufficient to account for all

forfeitable property”; therefore, “if the fraud proceeds amounted to $10, and the

identified forfeited property amounted to $8, only a $2 money judgment would be

permissible under 21 U.S.C. § 853(p).” Aplt.’s Opening Br. at 89.

This argument is—at the very least—foreclosed at prong two of the plain error

standard (i.e., clear or obvious error) by our decision in United States v. McGinty,

610 F.3d 1242 (10th Cir. 2010), in which we upheld this form of “hybrid” forfeiture

order. Id. at 1248–49. Indeed, it is unlikely that the district court erred at all. In

McGinty, the defendant was convicted of one count of misapplication of bank funds

in violation of 18. U.S.C. § 656. See id. at 1243. At sentencing, his house, boat, and

boat motor were subject to criminal forfeiture under 18 U.S.C. § 982(a)(2) as

proceeds of his unlawful activity. See id. at 1243–44. Additionally, the government

sought a money judgment representing the full amount of the defendant’s criminal

proceeds. See id. The district court denied the money judgment, and the government

appealed. See id.

141 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 142

We held that the district court erred in refusing to order a money judgment

representing the proceeds of the defendant’s misapplication of bank funds, see id. at

1245, reasoning, in relevant part:

Although the criminal forfeiture statute does not explicitly refer to money judgments, our sister circuits have uniformly recognized that money judgments representing the unlawful proceeds are appropriate. . . . We agree with the reasoning of our sister circuits and conclude that in personam money judgments are appropriate under criminal forfeiture.

Id. (collecting cases from the First, Third, Seventh, Ninth, Eleventh, and D.C.

Circuits). We continued, “[t]he applicable statute provides that [the defendant] must

forfeit ‘any property constituting, or derived from, proceeds’ that he obtained from

his misapplication of bank funds. Thus, under this statute, hybrid orders may be

appropriate where the government is entitled to both proceeds and specific assets

derived from those proceeds.” Id. at 1248 (emphasis added) (quoting 18 U.S.C.

§ 982(a)(2)).

Under McGinty, Mr. Dermen certainly cannot show clear or obvious error, and

it is unlikely that he can show error at all. Contrary to Mr. Dermen’s position,

McGinty provides support for the district court’s decision to issue a hybrid order by

combining proceeds from the in personam money judgment against Mr. Dermen (for

the proceeds of the fraud scheme) and the forfeiture of specific assets that were

purchased with fraud proceeds. Accordingly, Mr. Dermen’s alternative argument is

unavailing.

142 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 143

Mr. Dermen also argues that the district court’s general order of forfeiture was

improper. First, Mr. Dermen asserts that “money judgments and general orders [are]

mutually exclusive remedies, with any general order extinguished by a forfeiture

money judgment” under Federal Rule of Criminal Procedure 32.2. Aplt.’s Opening

Br. at 89–90. More specifically, Mr. Dermen contends that this is so because Rule

32.2(b)(2)(C) “excludes general orders of forfeiture if the court is able to ‘calculate

the total amount of the money judgment.’” Id. at 90 (quoting FED. R. CRIM. P.

32.2(b)(2)(C)). But this argument interprets the text too narrowly. Rule

32.2(b)(2)(C) provides:

General Order. If, before sentencing, the court cannot identify all the specific property subject to forfeiture or calculate the total amount of the money judgment, the court may enter a forfeiture order that:

(i) lists any identified property;

(ii) describes other property in general terms; and

(iii) states that the order will be amended under Rule 32.2(e)(1) when additional specific property is identified or the amount of the money judgment has been calculated.

FED. R. CRIM. P. 32.2(b)(2)(C); see also id. advisory committee’s note to 2009

amendment (“[T]he court is authorized to issue a forfeiture order describing the

property in ‘general’ terms, which order may be amended pursuant to Rule 32.2(e)(1)

when additional specific property is identified.”).

Here, the district court plausibly determined, inter alia, that “a significant

portion of the fraud proceeds obtained by [Washakie] and the Kingston defendants

were also transferred in money laundering transactions to Turkey and Luxembourg.” 143 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 144

Aplt.’s App., Vol. V, at 917. “The court further [found] that [nearly $30 million] [of

the] fraud proceeds [that were] transferred to Luxembourg and Turkey remained

overseas with [various] companies . . . and individuals . . . associated with [Mr.

Dermen] . . . .” Id. at 918. And it “[found] that general orders of forfeiture are

appropriate for all of these entities and individuals as connected to the crimes of

conviction.” Id. at 919.

Mr. Dermen does not challenge these findings of fact. And according to the

plain text of Rule 32.2, these seem to be precisely the circumstances under which a

general order of forfeiture is proper. Most critically, Mr. Dermen does not point to a

Tenth Circuit or Supreme Court case in which Rule 32.2(b)(2)(C) has been

interpreted to render money judgments and general orders of forfeiture “mutually

exclusive remedies.” Aplt.’s Opening Br. at 90. Absent such authority, we certainly

cannot say that the district court committed clear or obvious error under the plain

error standard, if it erred at all. See Draine, 26 F.4th at 1188–89.

Finally, Mr. Dermen asserts that the district court “lacked jurisdiction” to enter

a general order of forfeiture against “non-party foreign and domestic . . . entities”—

that is, the overseas entities to which Mr. Dermen and his co-conspirators directed

fraud proceeds. Aplt.’s Opening Br. at 90 (italicization omitted). But, here too, Mr.

Dermen fails to support his argument with authority from our circuit or the Supreme

Court that shows clear or obvious error, and his argument contorts the record. Most

fundamentally, it bears underscoring that the preliminary order of forfeiture did not

reach third parties’ interests in the property at issue; rather, the order forfeited “the

144 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 145

defendant’s interest in the property—whatever that interest may be.” Aplt.’s App.,

Vol. V, at 914–15 (quotation omitted). And the district court announced its intention

to comply with Rule 32.2(c)’s process for vindicating third-party property interests in

forfeited accounts and assets.

Specifically, the district court explained that Rule 32.2(b)(2)(A) requires it to

enter a preliminary order of forfeiture “without regard to any third party’s interest in

the property” because Rule 32.2(c) provides a separate procedure for determining

third-party interests. Aplt.’s App., Vol. V, at 914 (quoting FED. R. CRIM. P.

32.2(b)(2)(A)); see also id. (“[T]he court conducts a separate proceeding in which all

potential third party claimants are given an opportunity to challenge the forfeiture by

asserting a superior interest in the property.” (quoting FED. R. CRIM. P. 32.2 advisory

committee’s note to 2000 adoption)). Without more, Mr. Dermen cannot show under

the plain error standard that the district court committed clear or obvious error—if

the court erred at all—in entering its general order of forfeiture. 24

24 For the first time in his Reply Brief, as it relates to the forfeiture bench trial, Mr. Dermen rehashes his argument from the district court that Agent Washburn’s summary charts and testimony tracing the flow of fraud proceeds were improper expert witness testimony. Before the district court, Mr. Dermen objected to several summary exhibits that depicted the flow of fraud proceeds to accounts and properties that Mr. Dermen controlled on the grounds that the summaries were not supported by admissible evidence. He also objected to the “bad-in-first-out” (BIFO) methodology that Agent Washburn used to trace the funds. Over his objections, the district court held that the charts were admissible. For the first time on appeal, Mr. Dermen argues that Agent Washburn offered improper expert witness testimony under Federal Rules of Evidence 702 and 1006 in Mr. Dermen’s forfeiture bench trial, and that the district court erred by admitting it. Mr. Dermen, however, has waived these arguments by waiting until his Reply Brief to raise them with respect to the district court’s forfeiture proceeding. See, e.g., Leffler, 942 F.3d at 1197 (“[W]e 145 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 146

Having concluded that all of Mr. Dermen’s forfeiture arguments are

unpersuasive under the applicable standards of review, we reject them.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment as to Mr.

Dermen’s convictions and sentence, including the district court’s forfeiture order.

generally do not consider arguments made for the first time on appeal in an appellant’s reply brief and deem those arguments waived.”). 146 Appellate Case: 23-4074 Document: 123-1 Date Filed: 07/09/2025 Page: 147

23-4074, United States v. Dermen EBEL, J., joined by SEYMOUR, J., concurring.

I concur in the reasoning and conclusions in the opinion of Chief Judge Holmes

disposing of this appeal. I write separately rather than simply joining that opinion because

I am troubled by its length and the detail that it provides.

Without further burdening the bar with a concurring opinion, I will say simply that

I concur in the majority result.