United States v. Rennert

• Court: Court of Appeals for the Third Circuit
• Decided: June 10, 2004
• Docket: 03-1511
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-10-2004

USA v. Rennert Precedential or Non-Precedential: Precedential

Docket No. 03-1511

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation "USA v. Rennert" (2004). 2004 Decisions. Paper 561. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/561

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL (D.C. Crim. No. 96-cr-00051) District Judge: Hon. Clarence C. UNITED STATES COURT OF Newcomer APPEALS FOR THE THIRD CIRCUIT

Argued December 5, 2003 NO. 03-1511 Before: SLOVITER, ALITO, Circuit Judges and OBERDORFER * , District UNITED STATES OF AMERICA Judge

v. (Filed: June 10, 2004)

PHILIP ANDRE RENNERT, Appellant James H. Feldman, Jr. (Argued) Law Offices of Alan Ellis Ardmore, PA 19003-2276 NO. 03-1518 Attorney for Appellant, Philip Andre Rennert UNITED STATES OF AMERICA Peter Goldberger v. Law Office of Peter Goldberger Ardmore, PA 19003-2276 GEORGE RAYMOND JENSEN, Appellant Attorney for Appellant, George Raymond Jensen

NO. 03-1519 Christopher D. Warren (Argued) Philadelphia, PA 19103

UNITED STATES OF AMERICA Attorney for Appellant, Michael Lewis Miller v.

* MICHAEL LEWIS MILLER, Hon. Louis F. Oberdorfer, United States Appellant District Court for the District of Columbia, sitting by designation.

On Appeal from the United States District Court for the Eastern District of Pennsylvania Patrick L. Meehan In essence, Teale represented the United States Attorney worthless leased stocks as valuable assets Laurie Magid that could be liquidated to pay claims Deputy United States Attorney pursuant to reinsurance contracts entered for Policy and Appeals into with World Life and Health Insurance Robert A. Zauzmer Company (“World Life”), a Pennsylvania Assistant United States Attorney insurance company that was already in Senior Appellate Counsel financial difficulty. When World Life Andrea G. Foulkes(Argued) attempted to liquidate these assets to pay Assistant United States Attorney its outstanding medical reinsurance claims, Office of United States Attorney the stocks were found to be worthless. Philadelphia, PA 19106 World Life became insolvent at some point during or before 1988, but did Attorneys for Appellee not reveal its financial difficulty to regulators or to its insureds. In 1989 and 1990, World Life issued four group OPINION OF THE COURT medical policies. Teale entered into contracts reinsuring World Life’s policies SLOVITER, Circuit Judge. from November 1989 to November 1990. I. Pursuant to these agreements, Teale assumed 100 percent of the liability Appellants Michael Miller and associated with World Life’s four group Philip Rennert were convicted by a jury of medical insurance policies in exchange for conspiracy, wire fraud, and securities receipt of 92 percent of the premiums paid fraud; Appellant George Jensen was by World Life’s insureds on those policies. convicted by a jury of securities fraud. Appellants supplied Teale with stocks Their convictions resulted from their from offshore companies that Teale could involvement in a complex scheme under list as putatively valuable collateral which they leased the worthless stocks of backing the company, though the stocks several public companies to the Teale were essentially worthless. Yeaman, 194 Network (“Teale”), a fraudulent network F.3d at 447. of offshore and domestic companies. The details of the operation of the Teale In 1990, Rennert created Forum Network, through its principal Alan Teale, Rothmore to serve as an intermediary are set forth in our earlier opinion in between Teale and the publicly traded United States v. Yeaman, 194 F.3d 442 corporations that desired to lease their (3d Cir. 1999), and we repeat only such stock to Teale. This arrangement created details as are necessary to decide the issues the appearance of legitimacy in two ways. before us in this appeal. First, Forum Rothmore helped the Teale Network comply with Pennsylvania

2 reinsurance regulations that require Teale. Although Ecotech’s shares were u n l i c e n s e d o f f s h o r e r e i n s u r a n ce virtually wo rthless, A ppellants companies, such as Teale, to deposit in fraudulently over-valued Ecotech’s shares escrow accounts collateral (in the form of on the company’s financial statements. corporate stocks) equal to the liability Members of the conspiracy manipulated associated with its reinsurance contacts. the market for Ecotech and other Second, Forum Rothmore entered into corporations’ stock in order to maintain “surplus contribution agreements” with the inflated trading prices. Teale, which gave Teale the appearance of Miller, a lawyer, was corporate b e i n g b a c k e d b y in d e p e n d e n t counsel for Forum Rothmore and a stockholdings. Id. shareholder in Ecotech. The Ecotech Teale and Rennert first met and stock at issue was not tradeable and carried discussed this fraudulent scheme in August a restrictive legend to that effect. Miller 1990 and executed the first of their surplus issued opinion letters stating that Forum contribution agreements on September 1, Rothmore could remove that legend from 1990. Under the terms of these stock certificates so that it falsely appeared agreements, public shell corporations that the stock could be freely traded and leased their stock to Teale and authorized leased to Teale. The Government the sale of the stock, if necessary, to pay submitted evidence that Miller was paid claims under insurance policies that Teale $130,208 for representing the company had reinsured. Teale then listed these and $104,000 from leasing Ecotech stock shares at inflated values on the financial to Teale. statements presented to World Life. After In 1991, the Pennsylvania Insurance receiving insurance premiums from World Department discovered W orld Life’s Life, Teale paid monthly leasing fees to insolvency and ordered its liquidation. Forum Rothmore, which in turn split the Because Teale had been paying insurance fees with the stock providers. Id. The claims with recently-received premiums Teale Network was Forum Rothmore’s and had no other significant assets to draw sole client, and Forum Rothmore was the upon, this liquidation deprived Teale of the Teale Network’s only consistent source of ability to pay further insurance claims. assets. World Life’s policyholders thus were In particular, Forum Rothmore unable to receive insurance payments as entered into surplus c ontribu tion needed. agreements with Ecotech Corporation Following World Life’s liquidation, (“Ecotech”). Jensen was at various times the Pennsylvania Life and H ealth in control of and president of Ecotech. On Insurance Guarantee Fund, a state fund December 15, 1990, Jensen manipulated through which Pennsylvania insurance Ecotech’s stock price and then leased one companies pay the outstanding liabilities million dollars worth of Ecotech’s stock to

3 o f i n s o l v e n t c a r r ie r s , p r o v i d ed Court had erred in finding that there was approximately $6.4 million for group no loss caused by the fraud, in failing to medical reinsurance claims left unpaid as increase Miller’s offense level because he a result of the fraud. had used special (legal) skills in furtherance of the conspiracy, and in II. failing to increase all Appellants’ offense Appellants were indicted on levels for causing a substantial effect on a February 6, 1996 and were convicted by a financial institution. jury on April 16, 1997. At the sentencing In Miller, we rejected Miller’s hearing held January 22, 1998, the District argument that he acted “only as an Court assigned each Appellant a one-point attorney.” Instead, we held that Miller’s upward departure for loss of confidence in involvement went “beyond the role of an important institution, but found no legal representation” and could not “be mon etary loss attributable to the categorized as simple legal advice,” Appellants because World Life was especially given Miller’s ownership of insolvent at the time it entered into Ecotech stock and his letters regarding reinsurance contracts with Teale. The removal of restrictive legends. Miller, slip District Court also rejected the application op. at 6. In Rennert and Jensen, we also of additional sentencing enhancements for upheld Rennert and Jensen’s convictions use of special skills and substantially and affirmed the imposition of a one-point jeopardizing a financial institution. upward departure based on loss of Appellants appealed their individual confidence to an important institution. verdicts and sentencing calculations to this However, we remanded all three cases for court in 1998 and we set out the full re-sentencing to consider 1) whether there factual and procedural history of their was a causal connection between the cases in prior unpublished opinions. See Appellants’ misrepresentations and the United States v. Rennert, Nos. 98-1145 & fraud loss caused by Teale’s collection of 98-1101, slip op. (3d Cir. Oct. 15, 1999); premiums, and 2) in Miller’s case, whether United States v. Jensen, Nos. 98-1148 & an enhancement would be appropriate for 98-1104, slip op. (3d Cir. Oct. 15, 1999); Miller’s use of special (legal) skills. With and United States v. Miller, Nos. 98-1147 respect to fraud loss, we clarified that the & 98-1103, slip op. (3d Cir. Oct. 15, fraud loss calculation should be based on 1999). Appellants challenged the District the dates of Appellants’ agreement to the Court’s instructions to the jury, the conspiracy, rather than the dates of their sufficiency of the evidence supporting misrepresentations. Also, in a related case, their convictions, and the upward we suggested that the loss calculation adjustment for loss of confidence in an might be based on the net gain to Teale or important institution. The Government the balance of unpaid claims. See cross-appealed, arguing that the District Yeaman, 194 F.3d at 458-59 (involving

4 another co-defendant in the conspiracy a representative from the Liquidations and who is not a party to the instant appeal).1 Rehabilitation Section of the Pennsylvania Department of Insurance and a general On February 3, 2003, the District counsel to a third-party administrator. Court held a re-sentencing hearing for They stated that, had their organizations Miller, Jensen, and Rennert. Miller known that Appellants’ assets were attempted to present testimony and worthless, they would have halted the flow documents in support of his argument that of premiums months earlier and forced the scope of his involvement in the World Life to obtain a solvent reinsurer. conspiracy was less than that of his co- conspirators and that the extent of the total On February 13, 2003, the District loss caused by the fraud was not Court issued a sentencing opinion foreseeable to him. In particular, Miller concluding that Miller, Rennert, and attempted to contest the Government’s Jensen entered into an agreement arguments that he was present at the conspiring to defraud World Life and its August 1990 Teale-Rennert meeting, that policyholders no later than August 30, he prepared opinion letters in support of 1990. The District Court held that the total the conspiracy, that he received payments fraud loss caused by the Appellants was for services as a stock provider, and that he approximately $3.2 million: the difference falsified records bearing the date of between the total premiums paid to Teale Ecotech’s merger with a gold mine to minus the claims paid by Teale to World create additional stock shares for Teale. Life’s policyholders. The District Court The District Court declined to permit further found that there was “a causal Miller to submit additional evidence that connection between the misrepresentations was not already presented at trial because of the Defendants and the continued the issue was “subsumed” by the jury’s payment of premiums to World Life . . . verdict and was therefore immaterial to and the Defendants.” App. at 12-13. sentencing. See App. at 350-53 (finding Finally, the District Court increased Miller’s factual allegations were “matters Miller’s sentence based on his use of of defense for the trial, not for special skills and more than minimal sentencing”). planning. The Appellants also received upward departures for causing the loss of On the issue of fraud loss causation, confidence in an important institution (the the Government presented two witnesses, stock market). The District Court sentenced Miller to 51 months, Rennert to 63 months, and Jensen to 30 months of 1 Yeaman again appealed to this court imprisonment. in United States v. Yeaman, 248 F.3d 223 All three Appellants contest the (3d Cir. 2001), and we remanded for re- District Court’s factual finding of a causal sentencing. He was re-sentenced on connection between their February 5, 2003 and did not appeal.

5 misrepresentations and the fraud loss to premiums to Teale Network if it had the victims of $3.2 million. Miller known Appellants were over-valuing challenges the District Court’s order stock, Rennert only should have been held barring him from submitting additional liable for the approximately $1.3 million in testimony and documents to demonstrate losses that occurred on or after December the “limited” scope of his involvement in 29, 1990, rather than counting losses the conspiracy. We will affirm. beginning in September 1990. Because this lower fraud loss amount would have III. reduced Rennert’s sentence, he argues that The District Court had jurisdiction a remand for re-sentencing is required. under 18 U.S.C. § 3231 and this court has 1. Rela tio n s h i p B e t w e en jurisdiction over the appeal pursuant to 28 A p p e l l a n t s ’ U.S.C. § 1291 and 18 U.S.C. § 3742. We Misrepresentation of Stock review the District Court’s factual findings Values and World Life’s for clear error. United States v. Weaver, Continued Paymen t of 267 F.3d 231, 235 (3d Cir. 2001). We Premiums review the District Court’s decision to admit or deny evidence for abuse of Appellants contend that the victim, discretion. United States v. Serafini, 233 World Life, did not rely on their F.3d 758, 768 n.14 (3d Cir. 2000). misrepresentations of stock assets as valua ble a n d t h e r e fo r e t h eir A. Fraud Loss Causation misrepresentations did not cause the fraud Appellants assert two primary loss. Moreover, they contend that it was challenges to the District Court’s finding World Life’s own obstruction of the that their conspiracy caused approximately investigation by the Pennsylvania $3.2 million in fraud loss. First, all Department of Insurance – not their Appellants argue that the District Court misrepresentations – that prevented the erroneously found that their Department from discovering the fraud misrepresentations of stock values actually and immediately halting the flow of caused Teale to continue receiving premiums to Teale. Appellants thus argue premiums from World Life policyholders that the District Court committed clear b y p r e v e n t in g t h e P e n n s yl v a n ia error. The Government responds that Department of Insurance from discovering World Life and its policyholders paid the fraud and halting the flow of Teale millions of dollars for reinsurance in premiums. This is one of the issues we reliance on the Appellants’ fraudulent directed the District Court to consider on representations that their stocks were remand. Second, Rennert contends that valuable and redeemable as assets, as they even if the District Court were correct that purported. the Pennsylvania Department of Insurance We have addressed the issue of would have stopped the flow of insurance

6 fraud loss causation in connection with the policies had not been issued, Teale conspiracy in Yeaman, where we th e em p lo ye rs w ho stated, “[w]ithout the assets of the purchased the policies from defendants and the resulting appearance of World Life would have solvency, the most reasonable inference is obtained group medical that World Life would have ceased paying coverage from another premiums to Teale long before it source and all claims of the eventually did.” Yeaman, 194 F.3d at 458. beneficiaries would have We explained the causality analysis as been paid in full. In either follows: event . . . there would have been a causal nexus between Teale could not have the fraud and all unpaid entered and remained in the claims. business of reinsuring World Life but for its Id. at 459. In short, we found that the f r a u d u l e n t most reasonable inference is that World m i s r e p re s e n t a ti o n s. L i f e relie d on the A ppella nts ’ Although the District Court misrepresentations about the value of their made no finding on the issue stock assets when it paid Teale additional [before], the record would premiums. also appear to us to support On remand, the District Court the proposition that World concluded that there was “a causal Life was not capable of connection between the misrepresentations insuring any of the four of the Defendants and the continued group medical policies payment of premiums to World Life, and without having received a . . . Teale and the Defendants.” App. at commitment for 100% 12, 34. In particular, the District Court reinsurance. It follows that made the following findings: if the Teale fraudulent reinsurance contracts had -Had the true value of the not been available, World Defendants’ stocks been Life would either have known, at the very least, the secured other reinsurance or Pennsylvania Department of would not have issued the Insurance would have group policies involved. If stopped the payment of reinsurance from a solvent premiums to the Teale reinsurer had been obtained, Network. all claims under the policies would have been paid to the reinsurer; if the group -In addition, because World

7 Life was insolvent, Appellants next challenge the had the reinsurance sufficiency of the evidence supporting the contracts been District Court’s finding that the flow of termin ated, the insurance premiums would have been company would have halted but for their misrepresentations. At been liquidated much the Appellants’ re-sentencing hearing, two sooner than it was, Government witnesses testified that but for and the policyholders Appellants’ misrepresentations about the would have never value of the stock assets Teale claimed as made those premium collateral, World Life would not have payments at all. continued paying its policyholders’ premiums to Teale – that is, the App. at 13, 35. Department of Insurance or various Although Appellants argue that the policyholders would have halted the flow District Court’s findings do not answer the of premiums if they had known the true question of whether their value of Appellants’ stocks. One witness, misrepresentations caused the fraud loss, it the Director of Liquidations and is apparent that the Department of Rehabilitation for the Pennsylvania Insurance did not intercede because it did Department of Insurance, testified that the not know “the true value of the Department could have halted the flow of [Appellants’] stocks.” App. at 13. That insurance payments had it known that lack of knowledge was the result of Appellants’ assets were worthless.3 Appellants’ misrepresentations of the value of those stocks. This, in turn, caused the Department of Insurance to permit because their reinsurance contract did not World Life’s continued operation and provide for termination based on Teale’s caused World Life to continue providing insolvency. We do not accept this Teale insurance premiums in reliance on argument. If Teale were insolvent, it no A p p e l l a n t s ’ m i s r e p re s e n t a ti o n s. longer could meet its contractual Appellants’ attempt to sever the obligations to provide reinsurance to connection between their World Life. Because Appellants have misrepresentations and the Department of identified no contract provision requiring Insurance’s delayed intervention is World Life to continue providing unpersuasive.2 premiums after Teale has materially breached their contract, we have no reason to assume that World Life would be bound to continue honoring a contract that Teale 2 Ap pella nts suggest that Teale’s had breached. insolvency would not have provided 3 World Life with automatic grounds to Appellants emphasize that the terminate its relationship with Teale Insurance Director stated that the

8 B e c a u s e A p p e l l a n t s f raud ulentl y testified that he recommended that World misrepresented their assets’ value and Life partner with Teale based, in part, on made it appear that Teale was solvent, Appellants’ misrepresentations of the however, the Department was not value of their assets based on the authorized to intervene.4 manipulated market prices. The general counsel analyzed the A ppella nts’ Similarly, the general counsel to a fraudulent market valuations of their assets third-p arty insura nce a dm inistrato r and inferred that the Teale Network was a legitimate, solvent business based on those representations. He further testified that if Department “could . . . have acted months he had known that the stocks backing sooner . . . to stop the flow of premiums,” Teale were worthless, he would have App. at 386-87, but did not state that it removed his company’s group policies and would have done so. The District Court reinvested them with a solvent carrier. did not clearly err in concluding that the Department would have acted if it had We come then to Appellants’ known the true value of the assets argument that it was World Life’s failure Appellants misrepresented, given its later to cooperate with the Pennsylvania investigation and liquidation of World Department of Insurance – not Appellants’ Life. We also reject Appellants’ argument misrepresentations – that delayed the that the Department could not have discovery of Teale’s fraud. But the fraud stopped World Life from continuing to victim’s negligence or lack of diligence in provide Teale with premiums “months uncovering the fraud is not a defense. sooner” based on administrative hurdles to United States v. Coyle, 63 F.3d 1239, 1244 the investigatory and liquidation processes. (3d Cir. 1995) (“The negligence of the The District Court did not err in crediting victim in failing to discover a fraudulent the Director’s statement that it could have scheme is not a defense to criminal mobilized its administration to act quickly. conduct.”) (citations omitted); see also United States v. Bennett, 9 F.Supp. 2d 4 Appellants suggest that the 513, 523 (E.D. Pa. 1998) (“Taking Department of Insurance did not begin advantage of a victim’s self-interest does investigating World Life until January not mitigate the seriousness of fraudulent 1 9 9 1 a n d t h er e f o r e Ap pellan ts’ conduct.”) (quotations and citations misrepresentations had no effect prior to omitted). Nor do the Appellants cite any that date. This argument assumes that the case law suggesting that courts may not Department would not have begun find fraud loss causation where the victim investigating World Life if it were known has not immed iately assisted the that its reinsurer, Teale, lacked collateral authorities in investigating the fraud. assets as of 1990. This argument is In addition, the Government without support and is directly contrary to properly notes that even assuming that the Director’s testimony.

9 World Life could be held to be In his separate appeal, Miller contributorily negligent, such an argument asserts that the District Court erroneously ignores our prior finding that the fraud conflated the jury’s “general” conspiracy victims also included Wo rld Life conviction with the court’s conclusion that policyholders, wh o cou ld not be Miller should be held liable for all losses reimbursed for their medical costs until the related to the conspiracy under the relevant Commonwealth’s bail-out. Yeaman, 194 conduct provision of the United States F.3d at 458. Nothing in the record Sentencing Guidelines, U.S.S.G. § 1B1.3. suggests that the policyholders acted Miller contends that even if a defendant negligently or that they should have been has been convicted of a conspiracy charge, expected to be suspicious of the true value the trial court must make particularized of its reinsurance agent’s assets. findings as to the scope of each conspirator’s involvement in order to In light of the evidence from the increase the conspirator’s sentence under trial as well as the re-sentencing hearing, Section 1B1.3. the District Court did not clearly err in finding a causal connection between the Under the Sentencing Guidelines, a Appellants’ misrepresentations and the defendant’s offense level is subject to losses incurred by World Life and its increase depending on the amount of loss policyholders. caused by the fraud. Section 1B1.3(a) provides that the district court should 2. Rennert’s Sentence and the adjust the specific offense level by taking Beginning Date of the Fraud into account all conduct relevant to the Rennert also argues that the District offense. U.S.S.G. § 1B1.3(a). This Court should have calculated the fraud loss includes “all reasonably foreseeable acts for the period after December 1990 and omissions of others in furtherance of because the Department of Insurance [a] jointly undertaken criminal activity.” Director stated that had it known of the U.S.S.G. § 1B1.3(a)(1)(B). true value of Appellants’ stocks in Miller asserts that United States v. December 1990, it would have halted the Collado, 975 F.2d 985 (3d Cir. 1992), flow of premiums. Rennert did not assert requires that we remand this case in light this alternative loss calculation during the of the District Court’s lack of findings as District Court’s sentencing hearing and, to the precise scope and timing of his thus, has waived the argument. See United agreement to join the conspiracy. 5 In States v. Bethancourt, 65 F.3d 1074, 1082 (3d Cir. 1995). B. Miller’s Claim Regarding the Scope of 5 Miller also cites United States v. His Involvement Studley, 47 F.3d 569 (2d Cir. 1995). 1. Relevant Conduct However, Studley is not a binding precedent on this court and we have made

10 Collado, we stated that the district court of the brothers’ involvement in the must consider whether the loss resulting conspiracy or in each other’s transactions, from the actions of co-conspirators was 1) but instead only adopted the findings of “in furtherance of the . . . jointly- the presentence report in attributing to undertaken . . . activity,” 2) within “the each of them the drug quantity from the scope of the defendant’s agreements,” and conspiracy. Although we required 3) “reasonably foreseeable in connection individualized inquiry, we did not impose with the criminal activity the defendant an immutable requirement that the district agreed to undertake.” 975 F.3d at 995 court hold extensive hearings to make (citing U.S.S.G. § 1B1.3, application note explicit, particularized findings as to the 1); see also United States v. Duliga, 204 exact date on which each defendant F.3d 97, 100 (3d Cir. 2000). We held that committed to the conspiracy or the precise the relevant conduct provision depends contours of each conspirator’s agreement. upon each defendant’s role in the We instead employed a more flexible conspiracy and stated that courts must approach. We remanded the case to the conduct “a searching and individualized district court to determine when the inquiry into the circumstances surrounding defendants had joined the larger each defendant’s involvement in the conspiracy because the district court had conspiracy” in order to “ensure that the made no finding on the issue and the defendant’s sentence accurately reflects record was not clear on this issue. his or her role” in the conspiracy. Collado, Critically, however, we also 975 F.3d at 995. We added that district affirmed the district court’s attribution to courts also should consider other factors, one brother the amounts the other brother such as whether the defendant profited or supplied to the conspiracy. We affirmed assisted others in the conspiracy. Id. at this finding based on our review of the 991-94. We further clarified that a record, despite the district court’s lack of conspiracy conviction does not obviate the explicit findings on this issue. Because the need for analysis under the relevant record was clear on its face, the district conduct provision. Id. at 993, 997. court’s lack of particularized findings was Collado dealt with the liability of not dispositive. We instead concluded that two brothers involved in a larger drug the district court’s accomplice attribution conspiracy. The district court had not conclusion between the brothers was made any factual findings as to the scope supported by the record evidence of their awareness of and assistance to each other in drug transactions. See id. at 997. clear that the resolution of such issues is More recently, in Duliga, we governed by this Court’s decision in reaffirmed the proposition that even absent Collado. United States v. Duliga, 204 F.3d explicit findings on the precise scope of a 97, 101 n.1 (3d Cir. 2000). Accordingly, defendant’s involvement, a district court’s our analysis focuses on Collado.

11 decision may be affirmed if it is adequately see no reason to remand the case only to supported by the trial court record. 204 have the district court reach the same F.3d at 101 n.2. Although the district sentencing decision.” 204 F.3d at 101 n.2. court in that case “did not necessarily 2. Evidentiary Issues undertake a searching and individualized inquiry before attributing the entire Miller also contends that the amount of [fraud] loss . . . to Duliga,” we District Court abused its discretion by affirmed without remanding because we denying his request to submit additional were convinced that the attribution of the evidence that allegedly would have had a fraud loss was “firmly supported by the direct bearing on the scope and timing of record.” Id. his involvement in the conspiracy and his inability to foresee the total fraud loss Here, the record evidence suffices caused by the conspiracy. In particular, to support the conclusion that Miller had Miller attempted to submit evidence to agreed to the conspiracy by at least August dispute 1) his presence at the first meeting 1990 and should be held liable for the full between Rennert and Teale in August amount of loss caused by the conspiracy. 1990 (the time at which the Government In contrast to Collado’s under-developed suggested that Miller joined th e record, the record in this case included conspiracy); 2) Forum Rothmore’s Miller’s opinion letters on fraudulent stock designation of payments to Miller as legal transactions, his demand letters to protect fees or leasing fees in its financial records; artificially inflated stock quotes, and his and 3) the timing of Miller’s first letters advising the removal of restrictive discussion with the owners of the gold stock certificate legends so that non- mine corporation (with which Ecotech marketable shares would appear to be merged) about receiving Ecotech stock in tradeable. Miller played a critical role, order to bolster Ecotech’s financial enabling the conspiracy to function and statements. Because the District Court providing it an imprimatur of legitimacy. found that the issue of foreseeability was The record evidence of Miller’s extensive subsumed in the jury verdict, it stated that involvement in the conspiracy supports the it would not permit Miller to re-try an District Court’s application of the relevant issue that the jury had already determined. conduct provision.6 As with Duliga, “we We consider each piece of Miller’s evidence below. 6 Because we rely on the record Even assuming Miller was not evidence of Miller’s agreement and present at Rennert and Teale’s August complicity, we need not reach Miller’s 1990 meeting, several of Miller’s other claim that the District Court may have actions evidence his involvement in the improperly conflated the jury’s conspiracy conspiracy by August 1990. For example, verdict with a finding of full liability under in June 1990, two months before the the relevant conduct provision.

12 Rennert-Teale meeting, Miller provided attempt to submit evidence regarding his Rennert with an opinion letter to support presence at the Rennert-Teale meeting. Forum Rothmore’s practice of leasing Miller also attempted to submit worthless assets. On July 13, 1990, Miller evidence from his personal records and authored an opinion letter recommending journals that he contended showed that he the re-issue of the restricted Ecotech stock was not paid to provide stock to Forum held by Jensen, Rennert, and Miller Rothmore with knowledge of his co- without a restrictive legend. This made it defendants’ fraudulent activities, but only appear that Forum Rothmore could received legal fees and a loan. Miller provide Teale with millions of marketable emphasizes that Forum Rothmore’s faulty shares. In an August 28, 1990 letter, one a c c o u n t in g sys t e m i m p r o p e r l y week after the Rennert-Teale meeting, denominated his payments as stock Miller wrote to Teale expressing his provider fees, rather than traditional interest and commitment to what he payments for legal fees. termed the “credit enhancement program” that forms the basis of the fraud charges As the Government points out, the against the defendants, along with a $25 designation of F orum Rothmore’s million offer of stocks from Ecotech and payments as “leasing fees” or “legal fees” other corporations. Supp. App. at 638-47. is inconsequential because the payment Regardless of whether he was present at was made in exchange for M iller’s the Rennert-Teale meeting, the remainder services in advancing a fraudulent scheme. of Miller’s actions strongly support the Because Miller does not contest the District Court’s conclusion that he had District Court’s finding that he used his joined the conspiracy by or before August legal skills in furtherance of the fraud, the 1990. fact of payment for fraudulent services is the critical point while the form of his Miller responds that he undertook payment is irrelevant. Moreover, as we the aforementioned actions “in good noted in Miller, Miller’s services could not faith.” Miller Reply Br. at 8-9. Yet, the “be categorized as simple legal advice.” c u m u l a t iv e e f f e c t o f M i l l e r ’s Miller, slip op. at 7. aforementioned actions (the June opinion letter, the July letter recommending re- Although Miller responds that he issue of stock, and the August letter to was acting in good faith when he rendered Teale) suggests that Miller was too central the legal services for which he received to the operation to believe naïvely that he remuneration and was not aware that his and his associates were all within the legal services were being misused for a bounds of the law. Based on the record criminal conspiracy, the record does not evidence, Miller’s explanation is not support his contention. We also note that credible and the District Court did not Miller’s argument that Forum Rothmore abuse its discretion in rejecting Miller’s only paid him for good-faith legal services,

13 rather than fraudulent stock-leasing permitted to submit his proffered evidence, activities, goes to whether or not he acted Miller’s evidence would not have been in furtherance of the conspiracy. The sufficient to undermine the basis in the jury’s verdict shows that it decided that record for imposing accomplice liability. issue adversely to Miller. Despite Miller’s We hold the District Court did not abuse insistence that his new evidence only its discretion in denying Miller’s proffer of pertained to the timing or scope of his the evidence. commitment, Miller also attempted to IV. argue that he was entitled to submit evidence to attempt to nullify the jury’s We will affirm the judgment of the conspiracy connection, especially in his District Court for the reasons set forth. earlier pleadings. We emphasize that Collado does not entitle a defendant to re- litigate his or her guilt or innocence and thus, the issue of whether he was paid to fraudulently provide stock is not the subject of a Collado analysis. Lastly, Miller attempted to submit evidence to counter the Government’s allegation that he falsified records to deceive his accountant and regulatory authorities regarding the value and marketability of Ecotech’s assets. In particular, Miller states that in September and October of 1991 or earlier, he discussed providing restricted, non- marketable Ecotech stock to the gold mine corporation with which Ecotech merged. As such, Miller suggests that he should only be accountable for losses incurred after fall 1991, but not before. Even if Miller did not falsify records until late 1991, there were still enough other indicia of his involvement in 1990, discussed above, to support the conclusion that he already had committed to the conspiracy in 1990, regardless of whether he committed additional frauds in connection with Ecotech’s merger with the gold mine corporation. In sum, even assuming that Miller would have been