Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 9, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 25-1001 (D.C. No. 1:21-CR-00034-WJM-2) BRYANT EDWIN SEWALL, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
A jury convicted Appellant Bryant Edwin Sewall of fourteen counts of wire
fraud and one count of conspiracy to commit wire fraud. He now appeals that
conviction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
In late 2015, Mr. Sewall became one of three partners in a company called
Mediatrix. Beginning in March 2016, Mediatrix accepted money from clients and
After examining the briefs and appellate record, this panel has determined *
unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 2
invested it in the foreign currency exchange (forex) market. Mr. Sewall’s partners
were Michael Stewart and Michael Young. Mr. Young’s primary role was marketing,
i.e., bringing in new investors. Mr. Stewart’s primary role was operations (e.g.,
managing banking relationships), but he also participated to some degree in
marketing. Mr. Sewall’s primary role was trading, especially through a proprietary
algorithm he developed.
To actually send trades to the market, Mediatrix worked through a specialized
broker named Divisa, later named Equiti. As will become important below, Equiti
would not necessarily execute every requested trade. It imposed limits on how large
of a position a client could take within a given amount of time, and it would reject
trades that exceeded those limits.
Mediatrix made money by taking a percentage of the upside when it made a
profitable trade. On top of that, Messrs. Sewall, Stewart, and Young established a
brokerage named Blue Isle to hold client funds, and that brokerage charged a small
markup on every trade, whether winning or losing. Messrs. Sewall, Stewart, and
Young therefore profited both through Mediatrix’s cut of the winning trades and Blue
Isle’s markups. For purposes of this order and judgment, we will refer to Mediatrix
and Blue Isle collectively as “Mediatrix.”
In September 2019, the Securities and Exchange Commission (SEC) froze
Mediatrix’s assets on suspicion of fraud. In February 2021, a grand jury indicted
Mr. Sewall (along with Mr. Stewart) on the wire fraud and conspiracy counts
previously mentioned. In a separate action, Mr. Young pleaded guilty to one count of
2 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 3
lying to the SEC 1 and agreed to testify on the government’s behalf in the case against
Mr. Sewall and Mr. Stewart.
A jury heard Mr. Sewall’s and Mr. Stewart’s case in May 2024. The trial lasted
twelve days and included more than thirty witnesses. The government presented
evidence that Mediatrix brought in about $129 million in client funds between March
2016 and September 2019 (when the SEC shut it down). But falsehoods continually
infected Mediatrix’s marketing pitches and materials, particularly the claim that the
trading algorithm (i.e., Mr. Sewall’s algorithm) had never had a losing month. In
truth, Mediatrix frequently had losing months.
Mediatrix kept its losses hidden from clients because client statements only
showed the profit or loss of closed trades, a.k.a. “closed P&L.” The clients were not
told about open trades, most of which were trending downward and would someday
need to be closed at a loss unless the market happened to turn around. In other
words, clients were blind to the “floating P&L,” so named because the profit or loss
continually changed as the market fluctuated. Such a system allows a forex trader,
such as Mr. Sewall, to
quite literally handpick . . . the winning trades that he or she would like to report to his [or her] clients. They could report, say, a profit of $5,000 in realized [i.e., closed] trades. . . . [I]f a client were only told about how they did on their realized activity, they thought they would have made that money, but all the time lurking underneath could
1 Mr. Young told the SEC he began raising money for Mediatrix and 2016 when he had actually begun raising money in 2015. 3 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 4
be a loss of $250,000 that is floating and getting that much worse for their account that they would have no idea.
R. vol. VII at 2051.
Touting its record of consistently profitable closed trades, without disclosing
outstanding liabilities, Mediatrix continually claimed to clients and prospective
clients that the company had never had a losing month. This induced some
prospective clients to invest, and some current clients to invest more. This was the
ultimate basis for the wire fraud charges, i.e., using false pretenses to induce
investors to wire money to Mediatrix.
Mediatrix’s system of reporting only profitable trades without disclosing
floating losses led to an ever-widening gap between what clients saw when they
checked their account balances and what Mediatrix could pay if clients chose to
withdraw some or all of that balance. When Mediatrix shut down, clients’ purported
account balances added up to almost $180 million but the company had a little less
than $10 million in assets, and the cumulative floating P&L was negative $33.2
million. Nonetheless, over the course of Mediatrix’s existence, Messrs. Sewall,
Stewart, and Young earned $24 million in performance fees—the upside percentage
Mediatrix took on purportedly profitable trades—and $45 million in markup revenue.
Mr. Young testified on the government’s behalf. He claimed he did not know
about Mediatrix’s true financial condition, but instead pitched potential investors
using the information Mr. Stewart and Mr. Sewall gave to him. Mr. Stewart testified
on his own behalf. He admitted Mediatrix had been a failure but claimed it was the
4 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 5
product of poor business judgment and misplaced trust, not deceit. Mr. Sewall did
not testify.
The jury convicted on all counts. The district court later sentenced Mr. Sewall
to 276 months’ imprisonment and ordered him to pay more than $93 million in
restitution. 2
We will provide more details as they become relevant to Mr. Sewall’s
arguments, discussed below.
II. ANALYSIS
Mr. Sewall challenges: (i) the exclusion of certain exhibits; (ii) the sufficiency
of the evidence to convict him; and (iii) the district court’s decisions as to some of
the jury instructions. We will first address the sufficiency of the evidence, because
that discussion provides important context for the other two issues. We will then
address the evidentiary exclusions and the jury instructions.
A. Sufficiency of the Evidence
Mr. Sewall’s sufficiency challenge does not attack any particular count of the
indictment. Instead, he argues the evidence was insufficient as to all counts for the
same reason, namely, he never intended to defraud anyone. Cf. R. vol. III at 1287,
1290 (jury instructions for wire fraud and conspiracy, both requiring “specific intent
to defraud”). Mr. Sewall asserts he had no meaningful contact with investors, his
Due to unusual circumstances, Mr. Stewart’s sentencing was significantly 2
delayed. He was scheduled to be sentenced on March 19, 2026, but did not appear. The district court issued a bench warrant. Mr. Young, on his lying-to-the-SEC charge, received a prison sentence of one year and one day. 5 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 6
role in Mediatrix was limited to trading, and he reasonably believed his trading was
successful.
“We review legal sufficiency of evidence de novo, viewing the evidence in the
light most favorable to the government and drawing all reasonable inferences from
the evidence in favor of the verdict.” United States v. Kaspereit, 994 F.3d 1202, 1207
(10th Cir. 2021). “We consider all the evidence, both direct and circumstantial, but
we will not weigh it or make credibility determinations.” Id. “We will reverse and
acquit only when no reasonable jury could find the defendant guilty beyond a
reasonable doubt.” Id. (internal quotation marks omitted).
Mr. Sewall claims the government’s case against him included essentially no
evidence he used deception to induce anyone to invest in Mediatrix. Rather, the
government’s theory was that (i) Mr. Sewall knew Mediatrix was not generating real
profits, and (ii) Mr. Sewall knew Mr. Stewart and Mr. Young were telling people the
opposite. Cf. United States v. Trammell, 133 F.3d 1343, 1352 (10th Cir. 1998)
(“Evidence of the schemer’s indifference to the truth of statements can amount to
evidence of fraudulent intent.” (brackets and internal quotation marks omitted)). We
will discuss the two prongs of this theory in turn.
1. Mr. Sewall’s Knowledge of Mediatrix’s Unprofitability
At the outset, we note Mr. Sewall never disputed the underlying economic
reality of what happened, i.e., Mediatrix raised $129 million from investors;
Mr. Sewall and his partners earned tens of millions of dollars in performance fees and
markup revenue; but, by the end, Mediatrix had nowhere close to the amount of
6 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 7
money to cover what it represented to be its clients’ investment balances. A
reasonable jury could therefore accept these facts as established and evaluate the rest
of the evidence in that light.
We further note Mr. Sewall never argued that evidence generated toward the
end of the alleged conspiracy could not be used to infer earlier knowledge. For
example, he never argued that communications he generated in 2019 could only be
considered, if at all, as evidence of his knowledge or state of mind in 2019. Thus, the
jury was free to consider evidence from any point during the alleged conspiracy as
evidence of the conspiracy and the connected wire fraud charges.
Keeping these matters in mind, the following evidence was particularly
significant.
First, the jury saw numerous text messages between Mr. Sewall and persons at
Equiti (the company that executed Mediatrix’s trades), blaming Equiti’s trading limits
and alleged mistakes for forcing Mediatrix into a “hole” that Mr. Sewall had a plan to
“dig out of . . . in time once the new money hits [i.e., new investor money comes in]
and [Equiti’s] limits go up.” R. vol. VII at 247. He complained he could not “just
cut [i.e., close unprofitable positions] and take a big loss or it is going to do
tremendous damage to [Mediatrix’s] client base.” Id. at 280. He asked for Equiti’s
help to execute “a list of [profitable] trades that I can pull off and then offset the
profits with [the losses on unprofitable positions] we need to reduce. This is how we
reduce a lot without it impacting the clients.” Id. at 281. He asserted that Mediatrix
“took a ton of shitty positions to get under” Equiti’s limits and that he would “have to
7 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 8
exit those at some point, [but] taking giant losses is not the answer.” Id. at 283. He
further described those unprofitable positions as “craters in the landscape,” id., and
“about four holes we are in because of problems with [Equiti],” id. at 285.
Second, the jury heard phone calls between Mr. Sewall and Equiti, which
Equiti recorded as part of its standard practices. In one of those calls, Mr. Sewall
complained about what he viewed as Equiti’s problems and stated, “We keep
getting—rearranging the deck chairs on the Titanic, but nobody’s bailing out the
water.” Suppl. R., Ex. 558 (audio recording) at 05:09–05:14. He told his main
contact at Equiti that Equiti’s “existence—and I use that term pretty specifically—is
just as much on the line as ours is,” id. at 05:47–05:58, and “if we go down, you’re
going with us, and we’re all going to try to figure out how to not be in jail,” id. at
07:00–07:06.
Third, a programmer working for Mediatrix heard Mr. Sewall talking about
“the hole.” R. vol. VII at 799. The programmer had access to Mediatrix’s trading
data and understood that “the hole” referred to “the unprofitable positions that were
open.” Id. at 800. He spoke to Mr. Sewall about this, who responded with something
to the effect of, “We cannot close these positions right now. We will have to—we’ll
have to make money on other strategies and then slowly get out of this hole.” Id.
at 858.
Fourth, at closing argument, counsel for Mr. Sewall essentially conceded his
client’s knowledge of Mediatrix’s true financial position. He stated that Mr. Sewall
knew about “open negative trade equity,” R. vol. VII at 2844, or in other words,
8 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 9
negative floating P&L, but Mr. Sewall “was consistently working to get the trading
back in line so that he could fix that,” id., and “it is not fraud for those open positions
to not be successful at that time,” id. at 2845–46. Counsel further stated that
Mr. Sewall “believed that if he was able to work out those problems that Equiti was
causing, that in due time, those investments would recover, would turn themselves
around, and assuming a normal rate of people asking to redeem their accounts, they
would have never had to say no to anybody.” Id. at 2846.
In short, a reasonable jury had more than enough from which to conclude
Mr. Sewall knew that Mediatrix was not trading profitably.
2. Mr. Sewall’s Knowledge that His Partners Were Giving False Information to Investors About Mediatrix’s Profitability
Mr. Sewall does not dispute that his partners, and particularly Mr. Young (the
chief salesman), gave clients and prospective clients false information about
Mediatrix’s profitability. He only disputes his knowledge that they were doing so.
The jury, however, heard evidence of the opposite.
First, Mr. Sewall is incorrect to claim that the government had no evidence he
personally used Mediatrix’s alleged track record to solicit investment. One witness
(a fellow Marine named Patrick Parham) testified Mr. Sewall convinced him to invest
in part because of Mr. Sewall’s claim that Mediatrix never had a losing month. The
jury could reasonably infer that if Mr. Sewall himself was making such
representations, he knew his partners were as well.
9 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 10
Second, Mr. Young and an investor named Scott Burg testified that Mr. Sewall
was present on conference calls with prospective investors where Mediatrix’s
allegedly unbroken profitability record was discussed. Mediatrix’s compliance
officer, Brian King, testified that Mr. Sewall was present at meetings with potential
clients in New York City where Mediatrix was described as having a positive track
record. And Mediatrix’s biggest investor, Sebastiano Cossia Castiglioni, testified
about a dinner he had with all three Mediatrix partners. Not only was Mediatrix’s
alleged track record touted during that dinner, but Mr. Sewall actively participated in
the conversation by describing his allegedly careful trading strategy.
Third, the jury saw e-mails and text messages between Mr. Sewall and
Mr. Young in which Mr. Sewall emphasized Mediatrix’s profitability and encouraged
Mr. Young to do the same when talking to prospective investors. For example, on
one occasion, Mr. Young sent an e-mail to Mr. Sewall and Mr. Stewart with
marketing language about Mediatrix’s handling of a negative market event (not
otherwise described in the record). That language included statements that Mediatrix
“came away unscathed” through “[p]rudent trading principles” which “are what has
gotten us to 31 straight months of gains.” R. vol. VII at 773. Mr. Sewall replied that
the language was “an excellent explanation.” Id.
On a later occasion, a prospective investor asked Mr. Young about the fact that
Mr. Stewart had, in the 1990s, been sanctioned by the Commodity Futures Trading
Commission for falsely representing his forex trading success to solicit customers for
a forex trading class. Mr. Young asked Mr. Sewall how he should respond to the
10 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 11
prospective investor. Mr. Sewall replied that Mr. Young should emphasize
Mediatrix’s “spectacular three-year track record with not one losing month. That is
unheard of, so that should balance out a lot of those other things, because people are
greedy, and if you put up those numbers, well, we are where we are because of it.”
R. vol. VII at 1459.
On a yet later occasion, Mr. Young relayed to Mr. Sewall potential clients’
concerns that Mediatrix’s record was too good to be true. Specifically, Mr. Young
said, “The probability in a high leverage space to never lose is statistically very hard
to do.” Id. at 1709. Mr. Sewall responded, “Someone has to be the first in
everything. Maybe we are. That doesn’t make it fraud.” Id.
Fourth, Mr. Young regularly copied Mr. Sewall on other marketing materials
making similar claims about Mediatrix’s unbroken profitability record.
Thus, considering that a reasonable jury could conclude Mr. Sewall knew
Mediatrix was not a profitable firm, the foregoing evidence could lead a reasonable
jury to conclude Mr. Sewall knew that clients were being solicited through false
information.
3. Mr. Sewall’s Counterarguments
Mr. Sewall offers several reasons why, in his view, the jury could not conclude
he participated in the fraud. None are persuasive.
First, Mr. Sewall emphasizes testimony from certain investors that they never
communicated with Mr. Sewall or that Mr. Sewall was not present at important
meetings. The jury, however, heard evidence that Mr. Sewall was present at other
11 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 12
meetings (or on conference calls) where Mediatrix’s false track record was discussed.
And he actively promoted the success of his trading strategy at the dinner with Mr.
Cossia Castiglioni.
Second, Mr. Sewall notes evidence that he was usually physically separated
from the other partners because he performed his trading from the Bahamas and the
others were generally somewhere else in the world. He also emphasizes that each of
the partners had distinct, separate roles. But the weight to give to these
considerations was for the jury to decide.
Third, there was evidence that Mediatrix’s positive results were verified by a
third-party website called Myfxbook. Mr. Sewall argues he could reasonably rely on
that to assure himself that his trading strategy worked. But this argument runs into
numerous problems. To begin, the evidence showed Myfxbook did not independently
gather data but relied entirely on data sent to it by forex trading companies. A forex
trading company could connect any of its trading accounts to Myfxbook, including
client subaccounts (which, in Mediatrix’s case, did not disclose floating liabilities) or
even practice accounts (where trades are purely simulated). Finally, as already
described, the jury read and heard Mr. Sewall’s own words about Mediatrix’s
enormous trading liabilities. It was up to the jury to decide what to believe, if
anything, about the Myfxbook evidence.
Fourth, there was expert testimony that closed P&L is a common and
legitimate accounting method in the forex world. But the government did not argue
that closed P&L is inherently fraudulent. Rather, the government argued that
12 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 13
Mediatrix used closed P&L to make itself look profitable regardless of its real
financial state.
Finally, Mr. Sewall claims “[t]he Government’s case hinged almost exclusively
on the testimony of Michael Young,” who “had every incentive to minimize his own
culpability and shift responsibility onto Sewall.” Aplt. Opening Br. at 40. But the
jury was aware of Mr. Young’s plea deal and his potential conflict of interest.
Regardless, the government’s case against Mr. Sewall did not hinge on Mr. Young’s
testimony. Many witnesses offered testimony relevant to Mr. Sewall’s state of mind,
as already described. And much of Mr. Young’s importance from the government’s
perspective was as a means to introduce Mr. Sewall’s own words through text
messages and e-mails exchanged between the two of them.
Moreover, through other witnesses, the government introduced evidence
suggesting Mr. Young truly did not know Mediatrix’s real financial condition. A
witness from Equiti testified that Mr. Stewart instructed Equiti not to communicate
with Mr. Young. The government introduced a message from Mr. Stewart telling his
Equiti contact that Mr. Young “hasn’t a clue of what goes on with the brokerage side
of [the business] and how it works,” so Equiti should not meet with Mr. Young,
despite Mr. Young’s desire to do so on an upcoming trip to London, where Equiti was
headquartered. R. vol. VII at 233. The government also introduced text messages
between Mr. Sewall and Mr. Stewart stating that Mr. Young should not meet with
Equiti because “we don’t need him poking around in [operations]. . . . He is the
marketing guy and needs to stay in that realm and exercise client management.” Id.
13 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 14
at 766. Patrick Parham (the Marine whom Mr. Sewall convinced to invest) testified
that he eventually went to work for Mediatrix as an accountant, and Mr. Stewart told
him never to give financial statements to Mr. Young—a position Mr. Sewall
reaffirmed. And a programmer hired by Mediatrix testified he overheard Mr. Sewall
and Mr. Stewart remarking that Mr. Young “likes to know everything about
everything” and “asks too many questions.” Id. at 811.
In short, Mr. Sewall’s counterarguments, together or in isolation, do not
demonstrate that a reasonable jury could have voted only to acquit him.
* * *
We conclude the evidence was sufficient to convict Mr. Sewall.
B. Evidentiary Rulings
With this context, we now turn to Mr. Sewall’s attack on two evidentiary
rulings, specifically, the exclusion of his Exhibits A60 and A61.
1. Additional Background
a. The Flash Crash and the Grant Thornton Report
On October 9, 2016, the British pound suddenly and rapidly dropped in value
compared to other currencies, creating what is known in the forex industry as a “flash
crash.” R. vol. VII at 211, 1569. This caused about thirty open Mediatrix trades to
execute at the wrong price. Equiti therefore adjusted the affected trade prices to
compensate for the crash, and communicated as much to Mediatrix. Equiti also
temporarily credited $100,000 to Mediatrix’s trading account, giving it more margin
14 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 15
and therefore more ability to trade. This credit was neither a loan nor a
reimbursement.
Later, Mediatrix hired the accounting firm Grant Thornton to produce a report
verifying Mediatrix’s success, which could then be used as a marketing tool. But
Mediatrix sent Grant Thornton only client subaccount information, and client
subaccount information only showed the closed P&L. Grant Thornton therefore
received no information about “whether or not [Mediatrix] had enough assets to
cover its balances.” Id. at 223. Also, the final report, issued in 2018, stated that
Equiti “reimbursed all client accounts that experienced losses during [the October
2016 flash crash].” Id. at 1969. The parties do not point us to anywhere in the record
explaining how Grant Thornton came to believe that Equiti provided reimbursement.
As described above, this was not an accurate description of what Equiti had actually
done. In any event, Mr. Young relied on the Grant Thornton report as part of his
marketing efforts.
b. Disputes Regarding the Grant Thornton Report at Trial
During cross-examination of Mr. Young at trial, Mr. Sewall’s attorney sought
to admit the Grant Thornton report into evidence. The government objected that the
report was hearsay. Mr. Sewall’s attorney argued, however, that she was not offering
the report for its truth, but for its effect on Mr. Young, given that he used it in
marketing efforts. The district court overruled the government’s objection and
admitted the report because “[t]his exhibit was relied upon by this witness in his
marketing efforts.” R. vol. VII at 1964.
15 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 16
Later, during Mr. Sewall’s defense case, Mr. Sewall called Cliff Porter, a
forensic accountant, as a fact witness (not an expert). Mr. Porter had taken the
voluminous accounting data attached to the Grant Thornton report and condensed it
into two single-page summary exhibits labeled A60 and A61. See Fed. R. Evid.
1006(a) (allowing summary exhibits “offered to prove the content of voluminous
admissible writings, recordings, or photographs that cannot be conveniently
examined in court”). Both exhibits were intended to show that, factoring in the
flash-crash reimbursement Grant Thornton incorrectly reported, Mediatrix’s
financials mostly showed winning months. Mr. Porter calculated the reimbursement
(which, again, never truly happened) at about $5.1 million.
Counsel for Mr. Sewall first attempted to introduce Exhibit A61 by arguing
that a Rule 1006 summary exhibit could be used for any purpose, even if the
underlying data was admitted for a limited purpose (in this case, its effect on
Mr. Young). The government disagreed and the district court was persuaded by the
government’s position. Counsel then pushed back that he could admit Exhibit A61
for its effect on the listener, “and the listener in this case will be Mr. Sewall.” R. vol.
VII at 3311. The district court excluded the document as an improper attempt to
evade the hearsay rules. It did not comment on Mr. Sewall’s effect-on-the-lister
argument but gave counsel “a final opportunity to make an offer of proof.” Id.
at 3313. Counsel did not do so.
Not long after, counsel attempted to introduce Exhibit A60. The government
objected that the exhibit’s calculations regarding the flash crash were based on
16 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 17
opinion testimony about the underlying events that could only be offered by an
expert. Mr. Sewall’s counsel responded that the exhibit was important to support
Mr. Sewall’s expected testimony: “Mr. Sewall is going to testify that Mr. Stewart told
him that after the flash crash in October 2016, that all of the accounts were restored
to their preflash crash balances. Mr. Sewall relied on that information. He believed
it was true.” Id. at 3325–26. The district court agreed with the government,
however, that Exhibit A60 included impermissible expert testimony, and therefore
excluded it.
2. Harmless Error
The parties dispute: (i) whether Rule 1006 exhibits may be admitted for their
truth even if the underlying data was admitted for a limited purpose; (ii) whether a
Rule 1006 exhibit—one that, essentially by definition, did not exist until trial
preparation—may be admitted to show the “effect on the listener” of the underlying
data; (iii) whether such an exhibit may be offered by a fact witness other than the
person claiming to have been affected by the information (in this case, Mr. Porter
offering the exhibit for its effect on Mr. Sewall); and (iv) what sort of efforts going
into the creation of a Rule 1006 exhibit take it beyond a mere “summary, chart, or
calculation,” Fed. R. Evid. 1006(a), and into the realm of expert opinion. We
conclude we need not resolve any of these disputes because we would affirm
regardless.
“If a party objects to a district court’s evidentiary ruling based solely on the
Federal Rules of Evidence, we review for nonconstitutional harmless error.” United
17 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 18
States v. Walker, 85 F.4th 973, 982 (10th Cir. 2023) (brackets and internal quotation
marks omitted). 3 Reversible error exists in this context “only if the error affects a
substantial right of the party . . . .” Fed. R. Evid. 103(a); see also Fed. R. Crim. P.
52(a) (“Any error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.”). “[A]n error affecting a substantial right of a party is an
error which had a substantial influence on the outcome or which leaves one in grave
doubt as to whether it had such effect.” United States v. Charley, 189 F.3d 1251,
1270 (10th Cir. 1999) (brackets and internal quotation marks omitted). “If, when all
is said and done, [the appellate court] is sure that the error did not influence the jury,
or had but very slight effect, the verdict and the judgment should stand . . . .”
Kotteakos v. United States, 328 U.S. 750, 764 (1946). “The government bears the
3 Mr. Sewall also claims the exclusion of Exhibits A60 and A61 violated his constitutional right to present a complete defense. As the government points out, however, he never argued this theory to the district court. In reply, Mr. Sewall argues that his evidentiary objections were enough to preserve the constitutional issue, and he does not argue for plain error. Mr. Sewall cites no authority that arguments over admissibility under the Rules of Evidence are enough to preserve a constitutional complete-defense argument. The authorities we have found are to the contrary. See United States v. Thurber, 106 F.4th 814, 830 (8th Cir. 2024) (stating that the court would review the defendant’s constitutional complete-defense argument only for plain error because, in the district court, the defendant had never claimed exclusion of the evidence in question would violate his constitutional rights), cert. denied, 145 S. Ct. 1071 (2025); see also United States v. Coulter, 57 F.4th 1168, 1182 (10th Cir. 2023) (holding that objections to testimony based on hearsay and lack of personal knowledge are not enough to preserve a Confrontation Clause challenge, except under plain error). We therefore conclude Mr. Sewall forfeited this argument in the district court. Moreover, his refusal to argue for plain error on appeal means he waives the issue. See id. (“Because [the defendant] fails to argue for plain error in his opening brief or discuss the elements of the standard in his reply brief, he has waived the issue.”). 18 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 19
burden of showing the error was harmless by a preponderance of the evidence.”
United States v. Jean-Pierre, 1 F.4th 836, 843 (10th Cir. 2021).
Assuming for argument’s sake the district court erred in excluding either or
both of Exhibits A60 and A61, the government claims the error was harmless. We
conclude the government has carried its burden on this issue.
“The exclusion of evidence is harmless when the substance of the excluded
evidence comes before the court through other means.” United States v. Gould,
672 F.3d 930, 942 (10th Cir. 2012). Here, the data underlying the Grant Thornton
report was voluminous, but it was in the record. In closing arguments, Mr. Sewall’s
attorney specifically directed the jury to it: “[T]he Grant Thornton report that is in
evidence . . . explains what Mr. Sewall would have believed about how those trades
were treated that month [of the flash crash], and you can refer to that.” R. vol. VII
at 2843. In addition, the court allowed Mr. Porter to testify from his review of the
documents that, “[w]ith the exception of October 2016 [the flash-crash month] and
then, again, April of 2019, . . . the monthly total of closed trades P&L from all of
those master accounts [was] positive.” Id. at 3316. And the court admitted a line
graph created by Mr. Porter showing closed-trade profits always rising month-to-
month, save for the two exceptions noted. In other words, to the extent closed P&L
profitability mattered, Mr. Porter presented the jury with reason to believe that
Mediatrix’s record was nearly unbroken. Finally, Mr. Young and Mr. Stewart both
testified they thought Equiti had reimbursed Mediatrix after the flash crash.
Mr. Young even said he had discussed the alleged reimbursement with Mr. Sewall.
19 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 20
Mr. Sewall’s theory that he reasonably believed Mediatrix was consistently profitable
was therefore before the jury.
We also agree that evidence of Mr. Sewall’s state of mind—the only element
he contests—was overwhelmingly against him. See Jean-Pierre, 1 F.4th at 843
(“Often, the government [meets its burden to show harmless error] by demonstrating
the evidence of guilt is overwhelming.” (internal quotation marks omitted)).
Mr. Sewall’s own words are his worst enemy here. It is plain he knew Mediatrix was
unprofitable and that he and his colleagues were representing otherwise. His
lawyer’s representation at closing argument that Mr. Sewall simply needed help from
Equiti and time to dig out of the hole (without too many client withdrawals) could
not change the result. “[E]ven though a defendant may firmly believe in his plan, his
belief will not justify baseless or reckless representations.” United States v. Themy,
624 F.2d 963, 965 (10th Cir. 1980).
Finally, we agree with the government that the “effect on the listener” theory
Mr. Sewall offered as a basis for introduction of Exhibits A60 and A61 is inherently
incredible. Mr. Sewall wanted the jury to believe he learned from Grant Thornton in
2018 that, back in 2016, Equiti had made a $5.1 million reimbursement into
Mediatrix’s trading account. Mr. Sewall was one of three partners at Mediatrix and,
even more importantly, he was in charge of trading. The notion that a person in
Mr. Sewall’s position would be unaware of such a deposit for two years is untenable.
For all these reasons, we conclude the district court’s alleged error in
excluding Exhibits A60 and A61 was harmless.
20 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 21
C. Jury Instructions
Finally, we turn to Mr. Sewall’s claim that the district court erred with respect
to the jury instructions.
1. Separate Good Faith Instruction
Mr. Sewall asked the district court to include a jury instruction specifically
about the effect of good faith. The proposed instruction stated, in relevant part,
“‘Good faith’ is a complete defense to a charge that requires intent to defraud. A
defendant isn’t required to prove good faith. The Government must prove intent to
defraud beyond a reasonable doubt.” R. vol. III at 565.
The district court did not explain why it rejected this instruction. Regardless,
“we review a district court judge’s refusal to give a requested instruction under this
standard for an abuse of discretion.” United States v. Bowling, 619 F.3d 1175, 1184
(10th Cir. 2010). And “a separate good faith instruction is [not] necessary where a
district court properly instructs the jury on the element of intent, because a finding of
the intent to defraud necessarily implies that there was no good faith.” Id. at 1183
(internal quotation marks omitted). Here, the district court instructed the jury that, to
return a verdict of guilty on the wire fraud charges, the jury “must be convinced that
the government has proved . . . beyond a reasonable doubt,” among other things, that
“the defendants acted with specific intent to defraud.” R. vol. III at 1287. The
district court gave the same instruction as to the conspiracy charge. See id. at 1290.
In this light, Mr. Sewall’s proposed instruction “would simply [have] give[n] the jury
21 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 22
a clearer understanding of the issues.” Bowling, 619 F.3d at 1184 (internal quotation
marks omitted), which is not required. There was no abuse of discretion.
2. Definition of Intent to Defraud
Mr. Sewall also proposed that the jury instructions define “intent to defraud”
as “an intent to deceive and cheat someone.” R. vol. III at 561, 563. As support,
Mr. Sewall cited decisions from the Fifth, Ninth, and Eleventh Circuits emphasizing
the need to deceive and cheat, rather than deceive or cheat. The government did not
object to the overall point—i.e., there must be both intent to deceive and intent to
cheat—but objected that Mr. Sewall’s specific phrasing “could [lead] the jury to
believe that you have to ‘cheat and deceive’ the same person.” R. vol. VII at 2752.
The government worried about this implication because much of its case relied on
proving Mr. Sewall and Mr. Stewart deceived Mr. Young, with the purpose of
Mr. Young (unwittingly) cheating investors out of their money. The government
therefore proposed “an intent to cheat someone out of money or property by means of
deception.” R. vol. III at 139.
The district court’s first proposed set of jury instructions adopted the
government’s definition. At the jury instruction conference, Mr. Sewall’s attorney
objected based on Mr. Sewall’s earlier submission, and further stated, “I think that
would be fine if we can add ‘means an intent to deceive and cheat.’” R. vol. VII at
2750. In other words, an instruction that would read “an intent to deceive and cheat
someone out of money or property by means of deception.” Mr. Sewall’s attorney
continued, “And I think that is almost inherently implied by the Court’s instruction.
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I prefer the language of our instruction, I think it is a bit more simplistic.” Id. The
district court agreed with the government’s argument, however, about the need to
decouple the person being deceived from the person being cheated, so the court
retained the government’s proposal, and that is what went to the jury.
“We review the jury instructions de novo and view them in the context of the
entire trial to determine if they accurately state the governing law and provide the
jury with an accurate understanding of the relevant legal standards and factual issues
in the case.” United States v. Thomas, 749 F.3d 1302, 1312 (10th Cir. 2014) (internal
quotation marks omitted). But we review for abuse of discretion the district court’s
“shaping or phrasing [of] a particular jury instruction.” Id. at 1312–13 (internal
quotation marks omitted).
Mr. Sewall says that “by redefining ‘intent to defraud’ in a manner contrary to
the weight of authority [referring to the extra-circuit cases he cited], the court
lowered the Government’s burden of proof.” Aplt. Opening Br. at 46–47. Mr. Sewall
continues that “the court stripped the jury of the framework to evaluate [his] actual
defense—that he reasonably believed the trading was legitimate—and at the same
time expanded the pathway to conviction.” Id. at 47.
We see no error. Mr. Sewall and the government both wanted to rule out the
possibility of the jury treating intent to deceive and intent to cheat as separate prongs,
either one of which could satisfy the intent element. Both proposed instructions
would have served that purpose. Mr. Sewall’s proposal was simpler, as his counsel
23 Appellate Case: 25-1001 Document: 74-1 Date Filed: 04/09/2026 Page: 24
stated to the district court, but that merely goes to shaping or phrasing—a matter
within the district court’s discretion, see Thomas, 749 F.3d at 1312–13.
Moreover, the district court gave a reason for choosing the government’s
version, namely, the need to avoid an implication that a wire-fraud defendant needs to
deceive and cheat the same person. Mr. Sewall nowhere argues that this is an
incorrect interpretation of the wire-fraud statute. Even if it were incorrect, nothing
about his good-faith theory turned on the ability to parse the connection between
deception and cheating. He merely intended to argue (and did argue) that he
genuinely believed he was operating a legitimate, successful trading program. Thus,
his good-faith theory remained completely intact even under the government’s
definition of intent to defraud. For these reasons we affirm the district court’s jury
instruction on this issue. 4
III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Carolyn B. McHugh Circuit Judge
4 Mr. Sewall further argues that the rejection of his good-faith instruction and the adoption of the government’s intent definition are “connected errors,” Aplt. Opening Br. at 46, that doomed his good-faith theory. As we have already explained, neither of the district court’s decisions prevented him from presenting his theory to the jury. 24