United States Court of Appeals

For the Eighth Circuit

___________________________

No. 13-1027

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Martin T. Sigillito, also known as Marty, also known as Bishop Sigillito

lllllllllllllllllllll Defendant - Appellant

____________

 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________

 Submitted: January 13, 2014

 Filed: July 18, 2014 

____________

Before LOKEN, MURPHY, and SMITH, Circuit Judges.

____________

SMITH, Circuit Judge.

Martin Sigillito was convicted of multiple counts of wire fraud, mail fraud,

conspiracy to commit wire and mail fraud, and money laundering, because of his

involvement in a Ponzi scheme known as the "British Lending Program" (BLP).

Sigillito also forfeited certain properties as a result of these convictions.
On appeal, Sigillito challenges several district court1

 decisions that span from

indictment through sentencing. Sigillito's pre-trial challenges include the district

court's (1) denial of his motion to suppress evidence found pursuant to a search

warrant that allegedly failed to state with sufficient particularity the items to be seized,

failed to contain statutory notices related to forfeiture, and was the product of an

unlawful private search; (2) purported lack of jurisdiction because the government

proceeded with allegedly interested Assistant United States Attorneys (AUSAs); (3)

denial of a motion for new trial despite the government's alleged failure to disclose

Brady2

 materials; and (4) denial of Sigillito's motion for new trial based on the

government's alleged investigative misconduct. Sigillito also asserts that errors

occurred during trial, including the district court's (1) failure to submit the maximum

amount of forfeitable property to the jury; (2) failure to grant a motion for new trial

where the government allegedly commented improperly on Sigillito's credibility; (3)

cross-examination restrictions of certain witnesses that thwarted the potential to show

witness bias or Sigillito's lack of intent; and (4) giving of a willful blindness

instruction. Finally, Sigillito asserts sentencing errors, including (1) the district court's

miscalculation of the amount of loss, (2) the district court's erroneous application of

the vulnerable-victim enhancement, and (3) the substantive reasonableness of the

sentence. We affirm.

I. Background

Sigillito is an attorney and Anglican bishop who has lived in greater St. Louis

for many years. According to Sigillito, he met J. Scott Brown, a Kansas City attorney,

while in England attending a legal conference in 1988. He and Brown remained

professional acquaintances throughout the 1990s. In 1999, Brown called Sigillito

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa, sitting by designation in the United States District Court

for the Eastern District of Missouri.

2

Brady v. Maryland, 373 U.S. 83 (1963).

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about a program that would be "something that [Sigillito] and [Sigillito's] clients

might be interested in." Sigillito testified that he received information and assurances

about the program from Brown as well as legal advice about the program from others.

Sigillito agreed to get involved.

This program became known as the BLP. Under the BLP, Sigillito and Brown

recruited lenders in the United States to make loans to Derek Smith, a real estate

investor in the United Kingdom. These loans were one-year, unsecured loans that paid

exorbitant interest—often between 15 and 48 percent. Smith was not the only

borrower at the BLP's inception, but Sigillito and Brown concealed various defaults

by other borrowers by transferring their debt to Smith, who became the only borrower

by 2003. Beginning in 2004, Sigillito operated the BLP from his solo law firm in St.

Louis. By 2010, Smith owed investors approximately $70 million from BLP loans;

however, Smith rarely received any of the loan proceeds. Instead, Sigillito and Brown

used most of the money supposedly loaned to Smith to repay prior lenders. They also

retained much of the lenders' money as loan fees (up to 32 percent of the loan).

Sigillito actively marketed the BLP to friends and church acquaintances.

Sigillito made several fraudulent misrepresentations about the BLP to potential

lenders. For example, he stated that Smith would receive the loan proceeds to make

real estate purchases in the United Kingdom; however, Smith received little. Sigillito

also represented that the loans were safe and virtually risk-free. He did this by

regularly assuring lenders that Smith's asset-to-debt ratio was at least 2:1, or even as

high as 3.7:1. These ratios convinced lenders that they could satisfy any potential

default from Smith's abundant assets. Sigillito greatly inflated Smith's alleged assets

in this ratio by including speculative future values in unrealized real estate options.

Meanwhile, the liabilities were deflated by, most notably, the failure to include

Smith's BLP obligations. In reality, Smith was insolvent during much of the time that

the BLP operated, and emails confirmed that Sigillito was aware of Smith's

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insolvency. Sigillito, Brown, and Smith warranted these misleading asset-to-debt

ratios in each of the loan agreements that the various lenders signed.

Additionally, when Smith tried to leave the program, Sigillito demonstrated

how he could alter the loan numbers to make Smith appear solvent. Sigillito then

persuaded Phil Rosemann, the BLP's largest lender, to loan a significant amount to the

BLP; however, Rosemann sought acceleration of the loan after the BLP made late

payments to him. Sigillito continued to market the BLP actively in an effort to satisfy

Rosemann's demands, including misrepresenting the extent of Smith's liabilities and

the safety of the BLP, among other things. Sigillito also claimed that he regularly

reviewed Smith's financial statements as part of his due diligence to the lenders,

further misrepresenting Smith's purported worth.

The BLP began to crumble when Rosemann filed suit against Smith for

repayment of the loan. Smith responded by asserting that he never received any of

Rosemann's money. Rosemann then turned to Sigillito for an explanation. During this

time, Sigillito's secretary, Elizabeth Stajduhar, who admitted to embezzling over

$300,000 from Sigillito from 2004 to 2010 and over $80,000 in investor money from

the BLP, contacted the Federal Bureau of Investigation (FBI) about the BLP. The FBI

then initiated a criminal investigation, which led to Sigillito's arrest and indictment.

In all, the BLP claimed approximately 150 victims. Records indicate that the BLP

received at least $52 million in investor funds. Approximately $28 million went

toward repayment of prior loans. Sigillito profited more than any other member of the

BLP, making about $6.2 million.

On April 28, 2011, the government filed a 22-count indictment against Sigillito.

He was charged with nine counts of wire fraud, in violation of 18 U.S.C. § 1343; six

counts of mail fraud, in violation of 18 U.S.C. § 1341; one count of conspiracy to

commit wire and mail fraud, in violation of 18 U.S.C. § 371; and six counts of money

laundering, in violation of 18 U.S.C. § 1957. The district court conducted a four-week

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jury trial beginning on March 19, 2012. After accepting plea deals, Stajduhar, Smith,

and Brown all testified for the government. Brown and Smith admitted that the BLP

was a Ponzi scheme. Brown testified that it existed just to generate fees and that

Sigillito knew that the BLP became a Ponzi scheme as early as 2003. Smith testified

that the loan agreements into which he entered were untruthful and contained

misrepresentations.

On April 13, 2012, the jury found Sigillito guilty of 20 counts.3

 The district

court denied Sigillito's motions for judgment of acquittal and for new trial. The district

court also granted the government's motion for preliminary order of forfeiture. On

December 28, 2012, the district court sentenced Sigillito to "240 months on each of

Counts 1–13; 60 months on Count 16; and 120 months on each of Counts 17–22, with

the terms imposed on Counts 2–13 and 16–22 to run concurrently with each other but

consecutively to the term imposed on Count 1." Thus, the district court sentenced

Sigillito to 40 years' imprisonment, which the district court expressly intended to be

a life sentence.

II. Discussion

A. Pre-Trial Challenges

Sigillito avers on appeal that the district court committed several pre-trial errors.

He contends that the district court erred in denying his motion to suppress evidence

obtained at his law office because the warrant did not state with particularity the items

to be seized, failed to contain requisite statutory notices related to forfeiture, and

resulted from an unlawful private search. Sigillito also contends that the district court

lacked jurisdiction over his case where the government proceeded with allegedly

interested AUSAs. Additionally, Sigillito challenges the government's denial of his

motion for new trial based on the government's alleged failure to disclose Brady

3

The government had previously dismissed two counts of mail fraud.

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materials. Finally, Sigillito avers that the government committed investigative

misconduct, rendering erroneous the district court's denial of his motion for a new

trial.

1. Motion to Suppress

Based on the information that Stajduhar provided the FBI, the government

obtained a search warrant targeting Sigillito's law office. Sigillito voluntarily left his

office when agents arrived to perform the search. Officers seized a variety of records,

valuables, and potential evidence in connection with the BLP.

a. Particularity

The search warrant described the property to be seized by reference to

"Attachment A." Attachment A included 13 paragraphs describing the property to be

seized. Sigillito argues that Attachment A authorized only a general search because

it lacked the requisite particularity. He contends that the warrant and attachment failed

"to describe the purported criminal activity to which the search related," for the only

references to any criminal activity were the phrases "Ponzi Scheme" and "investment

scheme." Sigillito also contends that Attachment A's description of business records

is "impermissibly broad." Examples of this broad language include: "Records of all

personal and business expenditures," "cash, checks, or other monetary instruments,"

and "business records, bank statements, bank deposit tickets, cancelled checks . . . and

other records of receipts, dispositions, and disbursements of funds received by Martin

T. Sigillito."

Sigillito also contends that the government intentionally removed Attachment

A from the warrant during its execution. Sigillito supports this argument by noting

that he did not receive Attachment A with the copy of the warrant that the government

left at his law office. Sigillito posits that the FBI left only the warrant and an eightpage inventory of the items seized. The government's photograph of the materials that

the FBI left at the scene does not show Attachment A. However, FBI Special Agent

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Kevin Cosentino testified at the suppression hearing that, just prior to execution of the

warrant, he distributed several copies of Attachment A for the members of the

execution team to review. When asked whether he "believe[d] that Attachment A was

included . . . in what [he] left behind," Special Agent Cosentino replied, "Yeah, it was

my belief that the entire warrant was there, and it was also my intent that the entire

warrant was there." He also testified that if Attachment A was not included, as the

photograph may indicate, its absence would have been "completely inadvertent."

When asked on cross-examination whether he agreed that Attachment A had been

intentionally removed because it did not appear in the government's photograph,

Special Agent Cosentino responded "that's not true." He later acknowledged that its

intentional removal was "possible."

In its order denying Sigillito's motion to suppress, the district court found that

Attachment A was present for the magistrate's consideration and at execution. The

district court based its conclusion on Special Agent Cosentino's testimony that he

possessed Attachment A during execution and that he left a copy of the warrant for

Sigillito with Attachment A attached. Furthermore, if he did not leave Attachment A,

the exclusionary rule would not apply to such an inadvertence. Additionally, the

district court noted that although Attachment A described the business records sought

broadly, the expansive nature of the fraud required broad language. According to the

district court, the authorities had probable cause to believe that Sigillito's entire

business was permeated by a continuous, ten-year fraud. Finally, the district court

found that the officers acted in reasonable reliance on the warrant. Therefore, even if

the warrant was invalid, the Leon4

 good-faith exception would allow introduction of

the seized evidence. Consequently, the district court denied Sigillito's motion to

suppress.

4

United States v. Leon, 468 U.S. 897 (1984).

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"On review of a motion to suppress, we review the district court's factual

findings for clear error and review its legal conclusions de novo." United States v.

Brooks, 715 F.3d 1069, 1075 (8th Cir. 2013) (citation omitted). We give "'due weight'

to the inferences of the district court and law enforcement officials. A district court's

credibility findings are well-nigh unreviewable, so long as the findings are not

internally inconsistent or based on testimony that is incoherent, implausible, or

contradicted by objective evidence." United States v. Robbins, 682 F.3d 1111, 1115

(8th Cir. 2012) (quotations and citation omitted).

The Warrant Clause of the Fourth Amendment provides that "no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized." (emphasis

added). Particularity prohibits the government from conducting "general, exploratory

rummaging of a person's belongings." United States v. Saunders, 957 F.2d 1488, 1491

(8th Cir. 1992) (quotation and citation omitted). "To satisfy the particularity

requirement of the fourth amendment, the warrant must be sufficiently definite to

enable the searching officers to identify the property authorized to be seized." United

States v. Summage, 481 F.3d 1075, 1079 (8th Cir. 2007) (quotation and citation

omitted). Furthermore, "[t]he degree of specificity required will depend on the

circumstances of the case and on the type of items involved." Id. (quotation and

citation omitted). This particularity standard is one of "practical accuracy rather than"

of hypertechnicality. United States v. Peters, 92 F.3d 768, 769–70 (8th Cir. 1996)

(quotation and citation omitted). The Fourth Amendment requires particularity in the

warrant, not supporting documents like an application or affidavit. Groh v. Ramirez,

540 U.S. 551, 557 (2004).

We have recognized that fraud cases present unique particularity problems. We

have stated that "a search warrant involving a scheme to defraud is sufficiently

particular in its description of the items to be seized if it is as specific as the

circumstances and nature of activity under investigation permit." Saunders, 957 F.2d

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at 1491 (quotation and citation omitted). As a result, we have recognized a permeatedfraud exception that allows the government to seize almost every record of a business

when evidence shows that fraud in the business was pervasive; in United States v.

Kail, we explained:

While the search warrant in this case was broad in the sense that it

allowed inspectors to seize almost all of the business records of Coin &

Stamp Gallery, we would conclude that under the particular facts of this

case the scope of the warrant was justified. This is because it would not

be possible through a more particular description to separate those

business records that would be evidence of fraud from those that would

not since there was probable cause to believe that fraud permeated the

entire business operation. We would therefore affirm the district court's

finding that the warrant was sufficiently particular.

804 F.2d 441, 445 (8th Cir. 1986). Furthermore, generic terms may satisfy the

particularity requirement in certain cases. See Peters, 92 F.3d at 770; see also United

States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998) ("If detailed particularity is

impossible, generic language is permissible if it particularizes the types of items to be

seized.").

Here, the government satisfied the particularity requirement given the ubiquity

of the BLP within Sigillito's law office. Additionally, no persuasive evidence suggests

that the searching officers acted in bad faith and without reasonable reliance on the

search warrant. First, as the district court explained, "there was probable cause to

believe that Sigillito's entire business was permeated by a continuing fraud that lasted

for approximately ten years." Stajduhar's revelations demonstrated that Sigillito rarely

practiced law. Instead, since 2004, he devoted his time predominately to the operation

of the BLP. As such, it was not error, much less clear error, for the district court to

conclude that the fraud "permeated" the firm such that the warrant's reach

encompassed most of the firm's records. Second, it would have been difficult, if not

impossible, to craft more specific descriptions of the property to be seized considering

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the expansive reach of the fraud. Third, although the warrant was somewhat vague as

to the type of criminal activity involved, it was clear that the government was

concerned about a fraudulent "investment scheme" or "Ponzi scheme." Such

descriptions sufficed to alert both the magistrate and Sigillito as to the reason for the

search and seizure. We hold that the warrant meets the particularity requirement.

Sigillito avers that the district court nonetheless erred by denying his motion to

suppress evidence found pursuant to this search warrant because the searching agents

failed to leave a copy of Attachment A at his law office. Sigillito contends that the

executing officers intentionally determined not to leave a copy of Attachment A at the

scene of the search to prevent Sigillito from learning the scope of the government's

investigation. The district court relied on Special Agent Consentino's testimony that

he possessed a copy of Attachment A during execution of the warrant and that he

believed that he left a copy of Attachment A in Sigillito's law office. The district court

also concluded that, even if Special Agent Consentino neglected to leave a copy at

Sigillito's office, the exclusionary rule would not apply because any such failure

would have been inadvertent.

A warrant may cross-reference other documents when it uses appropriate words

of incorporation and if the supporting document accompanies the warrant. United

States v. Curry, 911 F.2d 72, 77 (8th Cir. 1990) Incorporation relates to the concept

of warrant particularity, for particularity prohibits general searches and also informs

the subject of the search of the lawful authority of the officer, the need to search, and

the limits of the power to search. Groh, 540 U.S. at 561.

We have previously determined that an attachment renders the warrant

sufficiently particular if the attachment is present at the execution of the search,

regardless of whether the searching officers provide the attachment to the defendant

following the search. United States v. Riesselman, 646 F.3d 1072, 1077 (8th Cir.

2011). We have also recognized that, despite the attachment's absence at execution,

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the exclusionary rule will not bar the seized evidence where the searching officers'

omission of the attachment constituted nothing more than nonrecurring negligence.

United States v. Hamilton, 591 F.3d 1017, 1027–29 (8th Cir. 2010).

Here, even if the executing officers failed to leave a copy of Attachment A at

the scene of the search, any error would have been an isolated inadvertence rather than

indicative of a pattern of recurring negligence. See id. Such inadvertence does not

trigger application of the "last resort" remedy of exclusion. See id. at 1027–28

(citation omitted). Special Agent Consentino testified that any omission would have

been accidental. Additionally, we reject Sigillito's contention that the executing

officers intended to conceal the scope of the investigation by failing to leave

Attachment A at the scene of the search. The record demonstrates that the executing

officers left a comprehensive handwritten inventory of the items seized at the scene

of the search. This inventory was sufficient to apprise Sigillito of the scope of the

government's investigation into the BLP, even assuming that the government had such

a duty to inform Sigillito at that stage in the proceedings. As a result, the district court

did not clearly err in finding that any error in omitting Attachment A would have been

merely an isolated incident of negligence.

Sigillito argues on appeal that the failure to leave Attachment A violated

Federal Rule of Criminal Procedure 41(f)(1)(C), which provides that "[t]he officer

executing the warrant must give a copy of the warrant and a receipt for the property

taken to the person from whom, or from whose premises, the property was taken or

leave a copy of the warrant and receipt at the place where the officer took the

property." When officers fail to leave an attachment to the warrant with the subject of

the search, the officers violate Rule 41(f)(1)(C). Riesselman, 646 F.3d at 1078.

However, exclusion of evidence is required only when the error prejudices the

defendant, or the police act in reckless disregard to the proper procedure. Id. Leaving

an inventory of the items seized at the scene renders it difficult for defendants to show

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prejudice. Id. Sigillito has shown no prejudice and thus proven no reversible error for

a violation of Rule 41(f)(1)(C).

b. Statutory Forfeiture Requirements

Sigillito argues that the search warrant that authorized the search and seizure

of documents and other valuables located in his law office was facially invalid

because it failed to include requisite statutory showings. The district court found that

Sigillito was "confused" about the nature of the search warrant. When the search

occurred, the government mainly sought to investigate criminal activity and not to

obtain forfeitable properties.

Sigillito contends that the warrant failed to comply with 21 U.S.C. § 853, which

governs criminal forfeitures involving "[a]ny person convicted of a violation of [the

control and enforcement subchapter] or [the import and export subchapter] of [the

Drug Abuse Prevention and Control] chapter [of Title 21]. This particular statute

provides:

The Government may request the issuance of a warrant authorizing the

seizure of property subject to forfeiture under this section in the same

manner as provided for a search warrant. If the court determines that

there is probable cause to believe that the property to be seized would,

in the event of conviction, be subject to forfeiture and that an order under

subsection (e) of this section may not be sufficient to assure the

availability of the property for forfeiture, the court shall issue a warrant

authorizing the seizure of such property.

21 U.S.C. § 853(f). Subsection (e) of § 853 provides a process by which a court may

issue a temporary restraining order to protect the property subject to forfeiture. The

warrant did not contain these findings, so Sigillito argues that the search warrant was

invalid.

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The district court correctly held that the search warrant was not required to

contain the § 853(f) findings. First, although the search-and-seizure team included a

forfeiture expert, the government's investigatory purpose outweighed any interest in

criminal forfeiture. Second, Federal Rule of Criminal Procedure 41(c) provides that

"[a] warrant may be issued for . . . (1) evidence of a crime; (2) contraband, fruits of

crime, or other items illegally possessed; (3) property designed for use, intended for

use, or used in committing a crime; or (4) a person to be arrested or a person who is

unlawfully restrained." Thus, Rule 41(c) contemplates search warrants without § 853

showings. Finally, the text of § 853 and its location in the Code demonstrate that these

findings are required in search warrants in the context of certain drug crimes, not

Ponzi schemes involving the crimes that Sigillito committed. As a result, the district

court correctly determined that the warrant was not facially invalid.

c. Unlawful Private Search

Sigillito contends that the government obtained probable cause to seize items

as proceeds only as a result of an unlawful private search. More specifically, Sigillito

contends that the FBI directed Stajduhar to return to Sigillito's law office in order to

obtain materials that would form the basis of probable cause, most notably a Personal

Articles Declaration (PAD) that contained evidence of the items that Sigillito bought

with BLP proceeds.

The Fourth Amendment does not protect against searches by private citizens

unless that citizen is acting as a "government agent." United States v. Muhlenbruch,

634 F.3d 987, 998 (8th Cir. 2011) (citation omitted). In deciding if "a private citizen

is acting as a 'government agent,' we consider (1) whether the government had

knowledge of and acquiesced in the search; (2) whether the citizen intended to assist

law enforcement agents or to further his own purposes; and (3) whether the citizen

acted at the government's request." Id. (citation omitted).

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Stajduhar retrieved over 500 pages of documents before her contact with law

enforcement. For these documents, Stajduhar did not act at the government's request;

in fact, the government had no knowledge of her document retrieval. See id. Stajduhar

later provided the PAD to the FBI, but it is unclear whether Stajduhar already had the

PAD in her possession or obtained the PAD after returning to Sigillito's office at the

FBI's request. The district court found that the FBI did not request her to obtain the

PAD; however, Special Agent Cosentino testified that he did request the PAD, but it

is unclear from his testimony whether Stajduhar had already obtained the PAD in her

initial, unsolicited document grab.

We need not determine whether the district court clearly erred in concluding

that the FBI never requested Stajduhar to search Sigillito's office to obtain the PAD.

The record reflects that the affidavit used to support the search warrant did not rely

on information contained in the PAD. In fact, the FBI did not possess a copy of the

PAD until after it applied for the search warrant on Sigillito's office. Furthermore, the

investigating agents recovered several copies of the PAD pursuant to their search of

Sigillito's office. Any subsequent fruit that the PAD bore would not require

suppression. See Nix v. Williams, 467 U.S. 431, 443–44 (1984) (noting the

independent source and inevitable discovery exceptions to the Fourth Amendment's

exclusionary rule). We reject Sigillito's call to suppress evidence seized pursuant to

warrant because the underlying search warrant did not rely on the information that

Stajduhar purportedly obtained during an unlawful private search.

2. Jurisdiction and Interested AUSAs

Sigillito makes two arguments relating to the authority of the AUSAs in this

case to prosecute him. First, he argues that the United States Attorney's Office for the

Eastern District of Missouri ("Eastern District USA") investigated and prosecuted him

despite a conflict of interest. Specifically, Sigillito contends that the involvement of

two attorneys who worked for the Eastern District USA during his investigation and

prosecution prevented the district court from having jurisdiction to hear the case.

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Sigillito emphasizes that the Eastern District USA had previously recused itself from

participating in his prosecution. Second, and relatedly, he contends that the Attorney

General's appointment of the United States Attorney's Office for the Western District

of Missouri ("Western District USA") as the special attorney assigned to handle his

prosecution was ineffective in eliminating the conflict pursuant to 28 U.S.C. § 547.

The government responds that we should review Sigillito's interested-AUSA

arguments for plain error because Sigillito failed to object to the district court. Sigillito

contends that we should conduct de novo review of these claims because an interested

AUSA concerns the subject matter jurisdiction of the district court. We need not

resolve the standard of review because Sigillito's arguments fail even under a de novo

standard.5

a. Conflicts of Interest within the Eastern District USA

Prosecutors are permitted to be zealous in their prosecution of a crime. Young

v. United States ex. rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987). However,

prosecutors must be disinterested such that they may not represent the United States

"in any matter in which they, their family, or their business associates have any

interest." Id. at 803 (citation omitted). This is because "[a] scheme injecting a personal

interest, financial or otherwise, into the enforcement process may bring irrelevant or

impermissible factors into the prosecutorial decision and in some contexts raise

serious constitutional questions." Marshall v. Jerrico, Inc., 446 U.S. 238, 249–50

(1980) (citations omitted). As a result, the presence of an interested prosecutor is a

5

We also decline to address whether Sigillito waived or forfeited these

arguments by failing to object below. After oral argument in this case, Sigillito filed

a motion in this court to correct the record. Sigillito sought to supplement the record

with materials that would demonstrate that he raised the issue of subject matter

jurisdiction to the district court as it related to the conflicts of interest in the Eastern

District and the authority of the Western District to prosecute him. Because our

decision does not turn on whether Sigillito raised his concerns to the district court, we

deny his motion to correct the record.

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fundamental error that "undermines confidence in the integrity of the criminal

proceeding." Young, 481 U.S. at 810 (citations omitted). Because of the fundamental

nature of this error, we do not conduct a harmless-error or prejudice analysis. Id. at

811–12.

Although such errors are so fundamental that prejudice need not befall the

defendant, the defendant nonetheless must show that an actual conflict of interest is

present. See United States v. Rosnow, 977 F.2d 399, 411 (1992). Furthermore, courts

may require a stronger showing of conflict for a prosecutor than a judge. Young, 481

U.S. at 811.

Mary O'Sullivan, a testifying witness and victim of the BLP, is a cousin of Jim

Crowe, an attorney employed in an allegedly supervisory capacity with the Eastern

District USA. Because of the potential of perceived bias, the Western District USA

conducted the prosecution instead of the Eastern District USA. Sigillito contends that

the Western District USA did so because the entire Eastern District USA recused

itself. Despite the recusal of the Eastern District USA, two of its attorneys participated

in Sigillito's prosecution. Sigillito argues that the district court therefore lacked

jurisdiction because of the presence of these two allegedly interested AUSAs.

Sigillito has failed to demonstrate that Crowe exercised any authority in the

case that would call the fairness of the trial into question. Crowe did not supervise the

two Eastern District USA attorneys in this case or participate in Sigillito's prosecution.

The two attorneys had no personal or financial interest at stake in the outcome of the

prosecution. In other words, Sigillito has failed to demonstrate the presence of an

actual conflict of interest. See Rosnow, 977 F.2d at 411. Additionally, we reject

Sigillito's comparison to the recusal of all of the district court judges in the United

States District Court for the Eastern District of Missouri ("Eastern District of

Missouri") because a stronger showing of conflict is required for prosecutors than

judges. Furthermore, the judges in the Eastern District of Missouri recused themselves

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for an entirely different, more problematic conflict—Sigillito's wife was a law clerk

for a judge in the Eastern District of Missouri. Consequently, Sigillito has failed to

demonstrate the presence of an actual conflict of interest that would undermine our

confidence in the integrity of his criminal proceedings below. See Young, 481 U.S. at

810.

b. Authority of the Western District USA to Prosecute

Federal law provides that "each United States attorney, within his district,

shall . . . prosecute for all offenses against the United States." 28 U.S.C. § 547.

However, "[t]he Attorney General may appoint attorneys to assist United States

attorneys when the public interest so requires." 28 U.S.C. § 543. These "special

attorneys"

may, when specifically directed by the Attorney General, conduct any

kind of legal proceeding, civil or criminal, including grand jury

proceedings and proceedings before committing magistrate judges,

which United States attorneys are authorized by law to conduct, whether

or not he is a resident of the district in which the proceeding is brought. 

28 U.S.C. § 515.

Sigillito contends that the United States Attorney (USA) from the Western

District USA had no authority to prosecute him because 28 U.S.C. § 547 requires that

USAs prosecute crimes only within their district. While generally true, Sigillito

ignores the statutes that allow the Attorney General to appoint special attorneys.

Special attorneys may conduct any type of legal proceeding regardless of district of

residence because of 28 U.S.C. § 515. As the Supreme Court has noted, specific

statutes control over general statutes, regardless of the date of enactment. Bulova

Watch Co. v. United States, 365 U.S. 753, 758 (1961). The more specific statute,

which deals with special attorneys, allows for prosecution regardless of the special

attorney's residency. Because the USA and AUSAs in the Western District USA were

-17-
special attorneys in this case, they had the authority to prosecute Sigillito in the

Eastern District USA. Thus, Sigillito's argument on this point fails.

3. Brady Violations

Sigillito argues on appeal that the district court failed to grant his motion for a

new trial; however, his motion for a new trial never included arguments relating to

alleged Brady violations. Thus, we review these claims for plain error. See United

States v. Payton, 636 F.3d 1027, 1039 (8th Cir. 2011) ("Because [Defendant] failed

to raise his Brady claim before the district court, we review for plain error." (citation

omitted)). "To prevail on a plain error standard, [Sigillito] must show that the court

committed an error that was plain, that affected his substantial rights, and that

seriously affects the fairness, integrity or public reputation of judicial proceedings."

Id. at 1039–40 (quotation and citation omitted).

In Brady v. Maryland, the Supreme Court held "that the suppression by the

prosecution of evidence favorable to an accused upon request violates due process

where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution." 373 U.S. at 87. "To show a Brady

violation, the defendant must establish that (1) the evidence was favorable to the

defendant, (2) the evidence was material to guilt, and (3) the government suppressed

evidence." United States v. Ladoucer, 573 F.3d 628, 636 (8th Cir. 2009) (quotation,

alteration, and citation omitted). We have determined that "materiality is evaluated

neither under a sufficiency of the evidence test nor by the mere possibility that it

might have influenced the jury, but rather by how the government's case would have

looked had the defense had access to the undisclosed information." United States v.

Haskell, 468 F.3d 1064, 1075 (8th Cir. 2006) (citation omitted). In other words,

"[o]mitted evidence is material where it creates a reasonable doubt that did not

otherwise exist." United States v. Wadlington, 233 F.3d 1067, 1076 (8th Cir. 2000)

(quotations and citations omitted). Brady applies even when the defendant does not

specifically request the covered information. United States v. Gonzales, 90 F.3d 1363,

-18-
1368 (8th Cir. 1996). One of the limits of Brady is that it does not cover "information

available from other sources or evidence already possessed by a defendant." United

States v. Jones, 160 F.3d 473, 479 (8th Cir. 1998) (citation omitted). We consider

undisclosed Brady material collectively to determine if nondisclosure undermines

confidence in the verdict. Gonzales, 90 F.3d at 1368.

The Court has extended Brady protection to witness-credibility evidence when

the reliability of the witness "may well be determinative of guilt or innocence." Giglio

v. United States, 405 U.S. 150, 154 (1972) (quotation and citation omitted). One

reason for this extension to witness-credibility evidence is because "exposure of a

witness'[s] motivation in testifying is a proper and important function of the

constitutionally protected right of cross-examination." Davis v. Alaska, 415 U.S. 308,

316–17 (1974) (citation omitted). We have determined that witness motivations, like

the payment of money as an incentive to change testimony, fall within the Brady

disclosure requirement. United States v. Librach, 520 F.2d 550, 554 (8th Cir. 1975).

Furthermore, the prosecutor must disclose the possibility of a reward that gives the

witness a personal stake in the defendant's conviction. United States v. Bagley, 473

U.S. 667, 683 (1985).

a. Brady Disclosures Involving Stajduhar

Sigillito claims that the government committed three separate Brady violations

relating to Stajduhar's testimony. First, the government failed to provide information

of her plea agreement by the time of her suppression hearing. Second, the government

failed to disclose that her embezzlement continued beyond 2008 and into 2009 and

2010. Third, the government failed to disclose that Stajduhar embezzled $80,000 from

investor funds rather than $12,000.

We reject Sigillito's first argument regarding the government's failure to

disclose Stajduhar's plea deal. Stajduhar's presence at the suppression hearing should

have indicated to Sigillito that a plea deal had been reached. Sigillito could have cross-

-19-
examined Stajduhar regarding potential plea deals. We do not believe that any

potential error here "seriously affect[ed] the fairness, integrity or public reputation of"

the suppression hearing. See Payton, 636 F.3d at 1039–40 (quotation and citation

omitted). We also reject the argument that this "evidence was material to [Sigillito's]

guilt." See Ladoucer, 573 F.3d at 636 (quotation and citation omitted).

As for Sigillito's second and third Brady accusations relating to Stajduhar,

Stajduhar admitted at trial during cross-examination that her embezzlement continued

into 2009 and 2010 and involved $80,000 in investor funds rather than $12,000. The

government correctly notes that Sigillito admitted in his brief that the government

provided Sigillito thousands of pages of documents in discovery, which contained the

information that he now claims he never received. Importantly, he admitted to

uncovering this information in the documents that the government provided, for he

cross-examined Stajduhar at trial on the extent of her embezzlement. Thus, we reject

Sigillito's Brady arguments relating to Stajduhar.

b. Brady Disclosures Involving Promises of Restitution to Victims

Sigillito also contends that the government failed to inform him of its

statements to witnesses—many of whom testified against Sigillito at trial—that they

may receive proceeds from the sale of Sigillito's forfeited assets if Sigillito was

convicted. Sigillito supports his allegation with affidavits from victims who testify to

these discussions. Sigillito agrees that the government promised mere "pennies or

nickels on the dollar" at most. The government counters by noting that Sigillito should

have known that victims would receive restitution because restitution is mandatory

under 18 U.S.C. § 3663A. Sigillito responds by noting that the government's promises

involved forfeited assets, not restitution. Unlike restitution, proceeds from the sale of

forfeited assets may be given to victims at the Attorney General's discretion. 18 U.S.C.

§ 1963(g)(1).

-20-
We reject Sigillito's Brady argument even if the government promised victims

proceeds from the sale of forfeited assets. Sigillito conceded the following in his brief:

Because these witnesses had lost money and in many instances presented

a superficial sympathetic persona, cross-examination was necessarily

somewhat tentative to avoid alienating the jury. Had the defense known

the witnesses were told by prosecutors they might be compensated if

Defendant were convicted and therefore had a motive to lie or embellish

his/her testimony, cross-examination would have been considerably

more vigorous.

Sigillito's statements are significant because they demonstrate that Sigillito

wanted to cross-examine these victim witnesses in a manner that would avoid

"alienating the jury." The concern for jury alienation is not diminished when a victim

witness may receive mere "pennies or nickels on the dollar" from a large original

investment that Sigillito squandered. It strains credulity that Sigillito's counsel would

have pursued a "considerably more vigorous" cross-examination strategy of these

witnesses, as their meager rewards would not render them any less sympathetic.

Furthermore, the fact that the witnesses may receive proceeds from forfeiture rather

than restitution does not mitigate Sigillito's concern about alienating the jury. In both

situations, the victims were going to lose significant amounts of money as a result of

the BLP scheme. Thus, we reject Sigillito's contention because any error would not

have "seriously affect[ed] the fairness, integrity or public reputation of" the trial. See

Payton, 636 F.3d at 1039–40 (quotation and citation omitted). Additionally, we

conclude that this was not evidence material to Sigillito's guilt. See Ladoucer, 573

F.3d at 636.

c. Post-Appeal Brady Claims

After the filing of briefs in this case, Sigillito filed a motion to stay this appeal

and remand the case to the district court for a ruling on Sigillito's discovery of alleged

new Brady violations. We denied the motion "without prejudice to the issue raised by

-21-
th[e] [m]otion being reconsidered by the panel to which the appeal is submitted for

disposition on the merits." Sigillito claims that O'Sullivan's brother, Tom O'Sullivan

("Tom"), telephoned Sigillito's attorney to inform him that O'Sullivan offered

fabricated testimony at trial with the government's knowledge. O'Sullivan testified at

trial about speaking with Tom regarding investment in the BLP, but Tom contends

that these conversations never happened. Furthermore, Tom contends that he told

Special Agent Cosentino during the investigation that he never spoke with O'Sullivan

about the BLP. Tom also claimed that Crowe told O'Sullivan that Sigillito was "legit."

Sigillito avers that this evidence is significant because it impeaches O'Sullivan's

credibility and reveals that Crowe discussed the matter with O'Sullivan, revealing a

strategy to cover up Crowe's endorsement of Sigillito and the BLP.

We reject the merits of Sigillito's argument. First, the government correctly

points out that O'Sullivan's discussions about the BLP with Tom have no bearing upon

whether Sigillito made fraudulent statements to her about the BLP. While Sigillito

could have impeached her, he has already admitted to a trial strategy of not

impeaching the victims aggressively so as to avoid alienating the jury. Second, the

government's case against Sigillito would remain strong despite impeachment of

O'Sullivan, for several other victims testified as to Sigillito's misrepresentations.

Third, the newly discovered evidence is inherently contradictory. Tom claims that he

never discussed the BLP with O'Sullivan, yet he also claims that O'Sullivan informed

him that Crowe thought Sigillito and the BLP were "legit." Thus, we reject these lateblooming Brady allegations on the merits.

4. Investigative Misconduct

Sigillito contends that the district court abused its discretion in refusing to grant

him a new trial based on various allegations of prosecutorial misconduct, which

resulted in a violation of his right to due process. "We review a district court's denial

of a motion for new trial for a clear and manifest abuse of discretion." United States

v. Anthony, 537 F.3d 863, 867 (8th Cir. 2008) (quotation and citation omitted).

-22-
a. The Letter to Potential Victims

Five months after Sigillito's indictment, the government sent a letter to all

identifiable, potential victims of the BLP. Sigillito contends that this letter disclosed

non-public information, expressed the personal opinions of the AUSAs, vouched for

the veracity of Smith and Brown, and improperly impugned defense counsel. For

example, Sigillito takes issue with the letter's disclosure of Brown's and Smith's guilty

pleas, which require them to "provide complete and truthful cooperation." The letter

also warned its recipients that Sigillito's attorney may contact them, but that anything

they said could be used in court. Thus, the letter reminded its recipients that they are

not required to speak with Sigillito's attorney. The letter also explicitly stated that

Sigillito had a right to a trial and is presumed innocent until proven guilty.

The Supreme Court has noted:

The United States Attorney is the representative not of an ordinary party

to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern at all; and whose

interest, therefore, in a criminal prosecution is not that it shall win a case,

but that justice shall be done. As such, he is in a peculiar and very

definite sense the servant of the law, the twofold aim of which is that

guilt shall not escape or innocence suffer. He may prosecute with

earnestness and vigor—indeed, he should do so. But, while he may strike

hard blows, he is not at liberty to strike foul ones. It is as much his duty

to refrain from improper methods calculated to produce a wrongful

conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). As a result, "[i]mproper vouching

may occur when the government expresses a personal opinion about credibility,

implies a guarantee of truthfulness, or implies it knows something the jury does not."

Bass v. United States, 655 F.3d 758, 761 (8th Cir. 2011) (quotation and citation

omitted). However, "[i]t is well established that prosecutors may admit plea

agreements, even those which include truthfulness provisions, without violating the

-23-
dictates against vouching." United States v. Jones, 468 F.3d 704, 707 (10th Cir. 2006)

(citations omitted). Additionally, a prosecutor strikes a foul blow when the prosecutor

suggests conspiracy with the defense counsel or launches personal attacks on the

defense counsel's integrity. United States v. Holmes, 413 F.3d 770, 775 (8th Cir.

2005).

Sigillito's argument that this letter violated his due-process rights such that he

deserves a new trial fails for four reasons. First, as to vouching, the government

merely informed the letter's recipients that Brown and Smith pleaded guilty and

entered agreements that require them to present truthful testimony. The letter never

identifies specific testimony and labels it as "truth." Furthermore, the government

disclosed the fact and effect of the plea bargain, which does not offend the

government's obligation not to vouch improperly for witnesses. See Jones, 468 F.3d

at 707. Second, Sigillito fails to demonstrate how the letter disparages defense

counsel. It merely informs its recipients that they are not required to speak with

Sigillito's attorney. Nowhere does it indicate that Sigillito's counsel is untruthful or

immoral, or otherwise cast any aspersion on his integrity or competence. Third, in

each case that Sigillito cites in his brief, the court warned against impugning the

defense or commenting on the veracity of witnesses in front of the jury. See, e.g.,

Jones, 468 F.3d at 707. The jury never considered this letter. The veracity of witnesses

to other witnesses is of minimal importance, for the jury is tasked with considering the

veracity of witnesses in court. See United States v. Meads, 479 F.3d 598, 602 (8th Cir.

2007) ("Credibility is always an issue for the jury to determine." (citation omitted)).

Finally, federal law requires the government to provide victims of a crime with this

information and explain, among other things, "the status of the investigation of the

crime" and "the acceptance of a plea of guilty or nolo contendere or the rendering of

a verdict after trial." 42 U.S.C. § 10607(c)(3)(A),(F). Sigillito fails to provide any

authority or argument that compliance with this statutory requirement violates his

due-process rights.

-24-
Sigillito's argument relating to the disclosure of non-public information and

expression of the AUSAs' personal opinions also fails. Sigillito never explains how

the AUSAs expressed a personal opinion. After our independent review of the letter,

we find no improper opinions. Additionally, § 10607(c)(3)(F) requires the government

to disclose the non-public information of Brown's and Smith's guilty pleas. As the

government properly notes, this information was provided to several private victims,

not publicly disclosed. Thus, we reject Sigillito's arguments pertaining to this letter.

b. Other Alleged Misconduct

Sigillito also asserts on appeal that the government improperly (1) intimidated

Sigillito's wife in order to convince her to provide evidence against him, (2) threatened

prosecution against a member of the Anglican Church because of his attempts to raise

money for Sigillito's defense, (3) threatened to expedite return of the indictment if

Sigillito or his wife spoke to potential witnesses, and (4) implicitly threatened defense

counsel with prosecution. The district court denied these contentions because Sigillito

failed to provide anything other than bare assertions of these alleged improper

behaviors or cited any convincing authority to support his claims.

We agree with the district court. Sigillito still fails to present any law in support

of his contentions, and we "regularly decline[ ] to consider cursory or summary

arguments unsupported by facts or legal authorities." Butler v. Crittenden Cnty., Ark.,

708 F.3d 1044, 1051 (8th Cir. 2013) (quotation and citation omitted). As a result,

Sigillito fails to provide the court with any basis by which to accept these arguments,

and he also fails to provide good reason why this court should grant him leave to

supplement the record. We thus reject these contentions.

B. Alleged Errors Committed During Trial

Sigillito argues that the district court erred in its (1) failure to submit the

determination of the maximum amount of forfeitable property to the jury; (2) failure

to grant a motion for new trial where the government allegedly commented improperly

-25-
on Sigillito's credibility; (3) restrictions on cross-examination of certain witnesses that

thwarted the potential to show witness bias or Sigillito's lack of intent; and (4) giving

of a willful blindness instruction.

1. Submission of the Maximum Amount of Forfeitable Property to a Jury

Approximately two months after trial, the Supreme Court decided Southern

Union Co. v. United States, holding that Apprendi6

 extends to criminal fines such that

a jury must determine any fact, other than a prior conviction, that increases the

criminal defendant's maximum potential fine. 132 S. Ct. 2344, 2348–49 (2012).

Sigillito argues that the district court erred in failing to submit to a jury the total

amount that Sigillito was to forfeit, in light of Southern Union. Sigillito contends that,

because the Court has also determined that criminal forfeitures qualify as a "fine,"

United States v. Bajakajian, 524 U.S. 321, 328 (1998), a jury should have determined

the total amount forfeited based upon the underlying facts, like "the amount of

[Sigillito's] gain or the victim's loss." S. Union, 132 S. Ct. at 2351. Sigillito did not

elect to have a jury determine the forfeitability of specific properties pursuant to

Federal Rule of Criminal Procedure 32.2(b)(5)(A). Thus, we review this challenge on

appeal for plain error. See United States v. Hively, 437 F.3d 752, 763 (8th Cir. 2006);

see also United States v. Lara-Ruiz, 721 F.3d 554, 557 (8th Cir. 2013) (reviewing for

plain error a defendant's argument based on United States v. Alleyne, 133 S. Ct. 2151

(2013), where the Court decided Alleyne while defendant's case was pending appeal).

The government relies on Libretti v. United States, 516 U.S. 29 (1995), a preApprendi Supreme Court case. The defendant in Libretti "challenge[d] the adequacy

of his waiver of a jury determination as to the forfeitability of his property under

Federal Rule of Criminal Procedure 31(e)." Id. at 48. He argued that he could not

waive such a right without certain protections because the right to a jury determination

of forfeiture was constitutional in nature. Id. The Court held otherwise, noting:

6

Apprendi v. New Jersey, 530 U.S. 466 (2000).

-26-
[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. Our cases have made abundantly clear that a defendant does

not enjoy a constitutional right to a jury determination as to the

appropriate sentence to be imposed. See, e.g., McMillan v. Pennsylvania,

477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986) ("[T]here

is no Sixth Amendment right to jury sentencing, even where the sentence

turns on specific findings of fact"); Cabana v. Bullock, 474 U.S. 376,

385, 106 S.Ct. 689, 696, 88 L.Ed.2d 704 (1986) ("The decision whether

a particular punishment . . . is appropriate in any given case is not one

that we have ever required to be made by a jury"); Spaziano v. Florida,

468 U.S. 447, 459, 104 S.Ct. 3154, 3161, 82 L.Ed.2d 340 (1984) (no

right to a jury determination as to the imposition of the death penalty).

Id. at 49. Consequently, "the right to a jury determination of forfeitability is merely

statutory in origin." Id. The government contends that Libretti forecloses Sigillito

from arguing that the Sixth Amendment required the district court to submit the issue

of forfeiture to the jury.

Sigillito responds by arguing that Apprendi and its progeny—particularly

Southern Union and Alleyne—implicitly overrule Libretti. Sigillito notes that the

Court has defined "statutory maximum" under Apprendi as "'the maximum sentence

a judge may impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.'" Southern Union, 132 S. Ct. at 2350 (quoting Blakely v.

Washington, 542 U.S. 296, 303 (2004)). Sigillito therefore argues that "the 'statutory

maximum' as defined in Southern Union is not limited to a maximum imposed by a

statute, but rather defines maximum in terms of facts reflected in the jury verdict or

admitted by defendant." Because the maximum amount of forfeitable property relies

on factual findings like the amount that Sigillito gained, a jury should have determined

the property to be forfeited. Sigillito further buttresses his argument by noting that the

Court in Alleyne called into question McMillan's validity post-Apprendi. See Alleyne,

133 S. Ct. at 2157–58. Of course, the Court cited McMillan in Libretti in support of

-27-
its proposition that the Sixth Amendment does not require submission of criminal

forfeiture to a jury. See Libretti, 516 U.S. at 49.

We nonetheless reject Sigillito's argument that the district court committed plain

error in failing to have the jury determine the maximum amount of forfeitable

property. First, we are compelled to apply Libretti and its determination that the Sixth

Amendment does not require a jury verdict on criminal forfeitures. See id. We have

acknowledged that "[t]he Supreme Court does not normally overturn, or so

dramatically limit, earlier authority sub silentio." Northport Health Servs. of Ark., LLC

v. Rutherford, 605 F.3d 483, 490 (8th Cir. 2010) (quotation and citation omitted).

Furthermore,

the Supreme Court has frequently instructed, "If a precedent of this

Court has direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals should

follow the case which directly controls, leaving to this Court the

prerogative of overruling its own decisions."

Id. at 491 (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,

484 (1989)). Thus, Libretti controls.

Second, criminal forfeiture statutes prescribe no minimum or maximum

punishments, which are the primary focus of Apprendi and its progeny. See Alleyne,

133 S. Ct. at 2155 (minimum sentences); Apprendi, 530 U.S. at 469 (maximum

sentences). One court has explained:

"We have previously held that Apprendi has no effect on criminal

forfeiture proceedings because forfeiture provisions have no statutory

maximum. Apprendi 's statutory maximum was supplied by the statute

of conviction . . . . The criminal forfeiture provisions do not include a

statutory maximum; they are open-ended in that all property representing

proceeds of illegal activity is subject to forfeiture."

-28-
United States v. Fruchter, 411 F.3d 377, 383 (2d Cir. 2005) (quoting United States v.

Messino, 382 F.3d 704, 713 (7th Cir. 2004)). As a result, "[a] judge cannot exceed his

constitutional authority by imposing a punishment beyond the statutory maximum if

there is no statutory maximum. Criminal forfeiture is, simply put, a different animal

from determinate sentencing." Id. The Southern Union Court reiterated this principle

by stating that there can be no "Apprendi violation where no maximum is prescribed."

Southern Union, 132 S. Ct. at 2353. Thus, although criminal forfeitures are like fines

in that they constitute punishment, they are unlike the fine in Southern Union that

involved a statutory maximum amount. See id. at 2349 (allowing a fine of up to

$50,000 for each day of violation).

Finally, other circuits that have considered this issue have all concluded that

neither Southern Union nor Alleyne applies to criminal forfeitures, so Libretti

continues to control. See United States v. Wilkes, 744 F.3d 1101, 1109 (9th Cir. 2014)

(Southern Union and Alleyne); United States v. Simpson, 741 F.3d 539, 560 (5th Cir.

2014) (Southern Union); United States v. Johnson, 540 F. App'x 573, 575 (9th Cir.

2013) (Alleyne); United States v. Torres, 531 F. App'x 964, 973 n.3 (11th Cir. 2013)

(noting in dicta that Libretti controls); United States v. Phillips, 704 F.3d 754, 769

(9th Cir. 2012) (Southern Union); United States v. Day, 700 F.3d 713, 733 (4th Cir.

2012) (Southern Union). We join these circuits in holding that Libretti still controls,

such that "the right to a jury verdict on forfeitability does not fall within the Sixth

Amendment's constitutional protection." See Libretti, 516 U.S. at 49.

2. Improper Comments on Sigillito's Credibility

Sigillito contends that the AUSA commented improperly on Sigillito's veracity

during cross-examination and disparaged Sigillito during closing arguments. Sigillito

did not object on these grounds to the district court, so we review for plain error. See

United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).

-29-
We must determine whether the comments were actually improper and, if so,

whether they prejudiced Sigillito so as to deprive him of a fair trial. Wadlington, 233

F.3d at 1077. In analyzing prejudice, "we consider: 1) the cumulative effect of the

misconduct; 2) the strength of the properly admitted evidence; and 3) the curative

actions taken by the district court." Id. (citation omitted). The Supreme Court has

characterized the test as whether the comments "so infected the trial with unfairness

as to make the resulting conviction a denial of due process." Darden v. Wainwright,

477 U.S. 168, 181 (1986) (quotation and citation omitted). Generally, the prosecutor

may not provide a personal opinion of the defendant's veracity. United States v. White,

241 F.3d 1015, 1023 (8th Cir. 2001). The prosecutor may nonetheless use "'colorful

pejoratives' and argue a personal interpretation of the evidence" during closing. Id.

(quoting United States v. Shoff, 151 F.3d 889, 893 (8th Cir. 1998)).

We reject Sigillito's argument that the AUSA commented improperly during

closing argument about Sigillito's character. Sigillito fails to specify the statements

that were improper. He attributes this deficiency to the district court's refusal to order

a transcript so that he could effectively raise this issue. The government contends that

Sigillito objected only once during closing, and the district court sustained the

objection. In any event, Sigillito failed to present this argument with the requisite

specificity to enable us to find in his favor.

As for the AUSA's allegedly improper cross-examination of Sigillito, Sigillito

contends that the AUSA "clearly inferred that, in his opinion, [Sigillito] was a liar."

The record of the exchange between the AUSA and Sigillito reveals nothing improper:

Q. And do you recall [your wife] testifying that she had a loan that

she believed was in the amount of $175,000 and that she believed that

the money that she had loaned had been sent to Derek Smith in England

and was with him and had been used for that purpose? Do you recall

that?

-30-
A. I recall she said that, sir.

Q. Okay, so my question to you is, were you deceiving your wife as

well as the lenders as to where the money was going?

A. No, sir, I was not.

Q. So how did she get that understanding if not from you?

A. I do not know.

Q. Is there anyone else that she dealt with in the BLP besides you in

order to make that loan?

A. No, there is not.

Q. She wasn't making that up, was she?

A. I don't believe my wife makes up anything.

As the transcript demonstrates, the AUSA did nothing improper by calling Sigillito's

credibility into question in this manner. We therefore find no error plain or otherwise.

3. Cross-Examination Restrictions

The government submitted a motion in limine before trial that sought to prevent

Sigillito from questioning O'Sullivan about her kinship to Crowe and the Eastern

District USA. The government also sought to exclude testimony from Brown and

Smith regarding their efforts to create a new entity to control the BLP's assets, which,

Sigillito contends, supports his theory of the case that Smith's properties had value

such that Sigillito did not misrepresent facts relating to Smith's solvency. The district

court granted the government's motion. The district court determined that evidence of

O'Sullivan's relationship with Crowe was irrelevant under Federal Rules of Evidence

401 and 402 and substantially outweighed by the danger of unfair prejudice and

confusion of issues under Rule 403. The district court also determined that evidence

-31-
of Brown's and Smith's alleged intention to create a new entity to control the BLP's

assets after the search of Sigillito's office was irrelevant under Rules 401 and 402.

Sigillito takes issue with both of these findings.

 "We review a district court's evidentiary rulings for clear abuse of discretion,

reversing only when an improper evidentiary ruling affected the defendant's

substantial rights or had more than a slight influence on the verdict. We review

Confrontation Clause objections to the admission of evidence de novo." United States

v. Watson, 650 F.3d 1084, 1088 (8th Cir. 2011) (quotation and citations omitted).

Federal Rule of Evidence 401 provides that "[e]vidence is relevant if: (a) it has

any tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action." Furthermore,

"[i]rrelevant evidence is not admissible." Fed. R Evid. 402. Finally, "[t]he court may

exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice [and] confusing the issues." Fed. R. Evid. 403.

Confrontation Clause issues arise when a district court restricts the scope of

cross-examination, for restrictions can "effectively emasculate the right of crossexamination itself." Watson, 650 F.3d at 1088 (quotation and citation omitted). "The

Confrontation Clause is generally satisfied when the defense is given a full and fair

opportunity to probe and expose . . . infirmities through cross-examination." Id.

(quoting Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam)). Furthermore,

exposure of the witness's motivation for testifying is an important aspect in the

constitutionally protected right of cross-examination. United States v. Jasso, 701 F.3d

314, 316 (8th Cir. 2012). Generally, "[w]here there are facts that would support a

reasonable inference of bias that relates to a witness's credibility, the defendant should

be permitted to make an effective inquiry into that bias." Id. (citation omitted). The

Confrontation Clause, however, "guarantees an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever

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extent, the defense might wish." Id. (quotation and citation omitted). Finally, crossexamination is "peculiarly appropriate" in mail-fraud cases. Reilly v. Pinkus, 338 U.S.

269, 276 (1949).

Although the right of cross-examination is strong, "[a] district court may

impose reasonable limits on cross-examination based on concerns about prejudice or

confusion of the issues." Jasso, 701 F.3d at 317 (citation omitted). This is especially

true where the link between evidence sought to be presented and the defendant's guilt

is attenuated. Id. These limits exist even where the subject matter is bias, for district

courts retain "wide latitude" in imposing reasonable limits on the contents of crossexamination. United States v. Drapeau, 414 F.3d 869, 875 (8th Cir. 2005) (quotation

and citation omitted). Additionally, the ability to cross-examine the witness through

other means is a factor in considering whether the district court violated confrontation

rights. Id.

a. O'Sullivan

Sigillito contends that the district court erred in disallowing him to crossexamine O'Sullivan about her familial relationship to Crowe because that relationship

suggests bias. We hold that the district court did not abuse its discretion in preventing

Sigillito from cross-examining O'Sullivan about this relationship. In Drapeau, a

district court prevented a defendant from cross-examining a witness about her sister's

employment with the United States Attorney's Office that prosecuted the case and her

husband's membership in the FBI task force that arrested the defendant because this

information was a waste of time, confusing, and irrelevant. Drapeau, 414 F.3d at 875.

We determined that the district court did not abuse its discretion because the sister was

not in a decision making position at the United States Attorney's Office. Id. at 876. As

in Drapeau, Sigillito has failed to demonstrate that Crowe exercised any type of

decision making authority over this case or the personnel involved. Therefore, the

district court acted within its "wide latitude" to prohibit such questioning. See id. at

875.

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b. Smith and Brown

The district court also did not abuse its discretion in limiting the testimony of

Smith and Brown regarding their consideration of creating a new business entity to

hold the BLP's assets following the search of Sigillito's office. The government never

contended that the BLP did not own assets; in fact, the problem with the BLP is that

it owned significant assets that BLP representatives, like Sigillito, duped investors into

providing. Such testimony would not demonstrate Smith's solvency whatsoever, much

less negate Sigillito's misrepresentations as to the extent of the BLP's assets.

Sigillito also contends that the district court should have allowed him to crossexamine Smith regarding Smith's statements that Smith and Brown were working

together to resolve the situation with the BLP. This testimony allegedly demonstrates

that Sigillito did not intend the BLP to be a fraudulent scheme. However, we have

previously discounted such arguments, stating that the following "fairly states the

applicable law" in this circuit:

On the other hand an honest belief on the part of the defendant that a

particular business venture was sound and would ultimately succeed,

would not in and of itself, constitute good faith as used in these

instructions; if in carrying out that venture the defendant knowingly

made false or fraudulent representations to others with a specific intent

to deceive them.

United States v. Cheatham, 899 F.2d 747, 751 (8th Cir. 1990) (quoting jury

instruction with approval). This testimony would have shown, at most, only that

Smith, and by extension Sigillito, believed that the BLP would ultimately succeed.

However, it would not negate the misrepresentations that Sigilitto articulated in

carrying out the scheme. Thus, the district court did not err in limiting crossexamination in this manner.

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4. Willful Blindness Instruction

Sigillito contends that the district court erred by providing a willful blindness

instruction to the jury. He also asserts that this error compounded the prejudicial

impact that he received from the cross-examination limitations. The government

counters by arguing that the evidence supported the instruction such that it was not

error for the district court to provide it. "We review the district court's jury instructions

for abuse of discretion and will affirm if the instructions, taken as a whole, fairly and

adequately submitted the issues to the jury." United States v. Whitehill, 532 F.3d 746,

751 (8th Cir. 2008) (quotation, alteration, and citation omitted).

The Supreme Court has noted that willful blindness instructions are appropriate

when "(1) the defendant must subjectively believe that there is a high probability that

a fact exists and (2) the defendant must take deliberate actions to avoid learning of that

fact." Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070 (2011)

(footnote omitted). We have held that "[a] willful blindness instruction is not

appropriate if the evidence implies defendants could only have had either actual

knowledge or no knowledge of the facts in question." Whitehill, 532 F.3d at 751

(quotation and citation omitted). Instead, "[i]f reasonable inferences support a finding

the failure to investigate is equivalent to burying one's head in the sand, the jury may

consider willful blindness as a basis for knowledge." Id. (quotation and citation

omitted). This instruction is especially appropriate "when the defendant denies any

knowledge of a criminal scheme despite strong evidence to the contrary." United

States v. Lewis, 557 F.3d 601, 613 (8th Cir. 2009) (quotation and citation omitted). In

evaluating a district court's decision to provide a willful blindness instruction, "we

view the evidence and any reasonable inference from that evidence in the light most

favorable to the government." Id. (quotation, alteration, and citation omitted).

Here, the evidence suggested strongly that Sigillito knew of the fraudulent

misrepresentations when he made them despite his claims to the contrary. See id. at

613. Sigillito's claim that he was unaware of the fraudulent nature of the scheme

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demonstrates that, if true, he was burying his head in the sand. See Whitehill, 532 F.3d

at 751. The government correctly points out that Sigillito possessed the information

needed to discover readily that the BLP was a Ponzi scheme. The government's brief

summarizes it best:

Sigillito claimed that he did not actually know the value of Smith's

"assets" and relied on others for the information. However, he also

claimed he was conducting due diligence as represented to lenders. If the

latter were true, he had to be deliberately ignorant not to conclude that

Smith's assets had little or no current value. Similarly, Sigillito claimed

that he did not know the full amount of Smith's BLP liability. Stajduhar

testified that she prepared spreadsheets at his direction and provided

them to Sigillito, but Sigillito claimed not to have reviewed them. If the

jury believed both Sigillito and Stajduhar on this issue, it could still have

found that Sigillito's ignorance was deliberate.

As a result, the district court did not abuse its discretion in providing the willful

blindness instruction. The evidence showed that if Sigillito lacked knowledge, it was

because he deliberately avoided acquiring it.

C. Sentencing Errors

Sigillito asserts two primary challenges to his sentence. First, he contends that

the district court miscalculated the amount of loss and erroneously applied the

vulnerable-victim enhancement. Second, he avers that his sentence was substantively

unreasonable.

"We review interpretation of the Sentencing Guidelines de novo and a district

court's application of the Guidelines to the facts for clear error. We review all

sentences, including sentences that vary from the Guidelines, for an abuse of

discretion." United States v. Rutherford, 599 F.3d 817, 820 (8th Cir. 2010) (citations

omitted). "A district court abuses its discretion when it (1) fails to consider a relevant

factor that should have received significant weight; (2) gives significant weight to an

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improper or irrelevant factor; or (3) considers only the appropriate factors but in

weighing those factors commits a clear error of judgment." United States v. Feemster,

572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotations and citation omitted).

"We review a sentence in two parts: first, we review for significant procedural

error, such as an improper calculation of the advisory sentencing guidelines range; and

second, absent significant procedural error, we review for substantive reasonableness."

United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009) (quotation and citation

omitted).

1. Procedural Errors

The district court determined Sigillito's adjusted offense level to be 47. Sigillito

contends on appeal that the district court committed two procedural errors when

calculating his offense level. He first disputes the district court's amount-of-loss

calculation as exceeding $50 million, which resulted in a 24-level increase in his

offense level. See U.S.S.G. § 2B1.1(b)(1)(M). Sigillito asserts that he should receive

an amount-of-loss credit because he returned some of the money to investors, resulting

in a loss of approximately $25 million. Sigillito thus implies that he should have

received only a 22-level increase in his offense level. See U.S.S.G. § 2B1.1(b)(1)(L).

Sigillito next disputes the district court's application of the two-level vulnerable-victim

enhancement. See U.S.S.G. § 3A1.1(b)(1). He contends that the evidence did not

support application of this two-level enhancement because the victim in question

"simply was not a vulnerable victim."

Procedural errors, like the miscalculation of a defendant's offense level, are

subject to harmless-error review. United States v. Henson, 550 F.3d 739, 740–41 (8th

Cir. 2008). "A procedural error at sentencing is harmless if it does not affect

substantial rights." United States v. Woods, 717 F.3d 654, 659 (8th Cir. 2013)

(quotation and citation omitted).

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If we agreed with Sigillito that the district court committed these procedural

errors, we would reduce Sigillito's adjusted offense level by four levels. This would

result in a new adjusted offense level of 43. The Guidelines sentencing chart reveals

that Sigillito's recommended Guidelines range would be life imprisonment at either

an offense level of 47 or 43, for an offense level of 43 is the highest level that the

Guidelines sentencing chart contemplates. See United States v. Starr, 533 F.3d 985,

1003 (8th Cir. 2008) ("Because of [Defendant's] high offense level, his advisory range

is higher than the sentencing chart accounts for—he has a total offense level of 47,

and the highest offense level on the chart is 43. At that offense level, the sentencing

chart recommends a life sentence."). Because these additional four levels would not

change Sigillito's Guidelines range, any alleged error here was harmless.

Consequently, we reject Sigillito's challenges relating to the calculation of his offense

level.

2. Substantive Reasonableness

Finally, Sigillito contends that his sentence is substantively unreasonable

because Brown and Smith received significantly less punishment. Smith received only

probation, and Brown received 36 months' imprisonment. Sigillito also avers that the

district court sentenced him to 40 years' imprisonment despite the highest statutory

maximum of 20 years' imprisonment. We presume that sentences within the

Guidelines range are substantively reasonable. United States v. Huston, 744 F.3d 589,

593 (8th Cir. 2014). We reject both of Sigillito's arguments.

The district court sentenced Sigillito to 40 years' imprisonment, which the

district court intended to be a life sentence as the Guidelines recommended. As for

Sigillito's first argument, the district court properly considered several 18 U.S.C.

§ 3553(a) factors. Furthermore, unlike Sigillito, Brown and Smith cooperated with the

government and pleaded guilty.

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Second, Sigillito erroneously contends that the total punishment that a district

court imposes should be less than the statutory maximum for the count with the

highest statutory maximum. This is an erroneous interpretation of the law. Instead, a

district court has broad authority to impose a consecutive sentence. Rutherford, 599

F.3d at 820. Notably, "the 'total punishment' imposed by the district court . . . on each

count should generally be less than the statutory maximum for the count with the

highest statutory maximum." Id. (emphasis added). Sigillito argues erroneously that

his total punishment for all counts should not exceed the statutory maximum for the

count with the highest maximum. Sigillito's argument ignores the authority of district

courts to adjust consecutive and concurrent sentences to achieve an appropriate

sentence under the law for the subject defendant. See United States v. Demeyer, 665

F.3d 1374, 1375 (8th Cir. 2012) (per curiam) ("[I]t is not for us to micro-manage how

the district court exercised its discretion to impose concurrent or consecutive

sentences for the multiple counts of conviction in order to ensure that [defendant]

would in fact serve a life sentence."). Thus, we reject Sigillito's arguments relating to

the substantive reasonableness of his sentence.

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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