FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID TAMMAN,

Defendant-Appellant.

No. 13-50463

D.C. No.

2:11-cr-01165-PSG-2

OPINION

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, District Judge, Presiding

Argued and Submitted

November 21, 2014—Pasadena, California

Filed April 3, 2015

Before: William A. Fletcher and Jay S. Bybee, Circuit

Judges, and David Alan Ezra, District Judge.*

Opinion by Judge Ezra

* The Honorable David Alan Ezra, District Judge for the U.S. District

Court for the District of Hawaii, sitting by designation.
2 UNITED STATES V. TAMMAN

SUMMARY**

Criminal Law

The panel affirmed a conviction and sentence for

conspiracy to obstruct justice, accessory after the fact to mail

fraud and securities law violations, altering documents to

influence a federal investigation, and aiding and abetting false

testimony at an SEC deposition.

The panel held that the Sentencing Guidelines

commentary prohibiting simultaneous application of

the Broker-Dealer enhancement under U.S.S.G.

§ 2B1.1(b)(18)(A) (2012) (2014 version at U.S.S.G.

§ 2B1.1(b)(19)(A)) and the Special Skill enhancement

under U.S.S.G. § 3B1.3 does not apply when the BrokerDealer enhancement pertains specifically to a principal’s

offense and the Special Skill enhancement pertains to a

defendant-accessory’s offense.

The panel held that in calculating a loss figure greater

than $20 million under U.S.S.G. § 2B1.1(b)(1), the district

court correctly held that the full measure of the loss inflicted

by a co-defendant’s crime would have been foreseeable to the

defendant despite his status as a mere accessory to that crime. 

The panel likewise held that in finding that the defendant’s

crime involved more than 50 victims under U.S.S.G.

§ 2B1.1(b)(2), the district court did not err by including

victims of the co-defendant’s crime, where the defendant did

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. TAMMAN 3

not have actual knowledge of those victims but the victims

were reasonably foreseeable to him.

The panel held that the district court did not err in finding

that the defendant, a practicing attorney and partner at a

major law firm, was competent to waive his jury trial and that

his waiver was knowing and intelligent.

The panel held that the district court did not plainly err

(1) in excluding a non-lawyer’s testimony reciting facts and

the legal conclusion that the defendant acted in conformity

with unidentified SEC rules and regulations and otherwise did

not break the law; (2) in determining that the district court

was capable of understanding, through a written proffer in a

trial brief rather than in live testimony in this bench trial, an

expert’s opinion regarding the defendant’s professional and

ethical duties as an attorney; and (3) in admitting

coconspirator nonhearsay testimony.

COUNSEL

Alan M. Dershowitz (argued), Cambridge, Massachusetts;

David Duncan, Zalkind Duncan & Bernstein LLP, Boston,

Massachusetts; William J. Genego,Santa Monica, California,

for Defendant-Appellant.

Paul G. Stern (argued) and Elana Shavit Artson, Assistant

United States Attorney, Office of the United States Attorney,

Los Angeles, California, for Plaintiff-Appellee.
4 UNITED STATES V. TAMMAN

OPINION

EZRA, District Judge:

Appellant David Tamman raises five issues in his appeal

from the district court’s judgment of conviction and sentence. 

We begin by addressing an issue of first impression, that is,

whether the district court erred at sentencing by applying both

the “Broker-Dealer” enhancement under United States

Sentencing Guideline Manual (U.S.S.G.) § 2B1.1(b)(18)(A)

(2012) (2014 version at U.S.S.G. § 2B1.1(b)(19)(A)) and the

“Special Skill” enhancement under U.S.S.G. § 3B1.3. We

hold that the Sentencing Guidelines commentary prohibiting

simultaneous application of the Broker-Dealer and Special

Skill enhancements does not apply when the Broker-Dealer

enhancement pertains specificallyto a principal’s offense and

the Special Skill enhancement pertains to a defendantaccessory’s offense.

We then address Tamman’s additional bases for appeal:

his arguments that (1) his waiver of his right to a jury trial

was not knowing, voluntary, and intelligent; (2) the district

court erred in excluding two proffered experts; (3) the district

court erred in admitting the statement of an alleged

coconspirator; and (4) the district court erred in calculating

loss and victim amounts, as required under the Sentencing

Guidelines. We affirm the district court’s conviction and

sentence.

I. Factual and Procedural History

In 2003, Tamman, an attorney licensed in California,

began performing work for NewPoint Financial Services,

Inc., a company owned by John Farahi. To raise money
UNITED STATES V. TAMMAN 5

through NewPoint, Farahi made private offerings of

debentures. NewPoint did not register the debentures with

the SEC, and while it took steps to make it appear that it was

complying with federal securities law pertaining to

unregistered securities—including hiring Tamman to prepare

private placement memoranda (PPMs) for the debentures—it

in fact regularly failed to disclose material information to

investors, in violation of the securities laws.

In 2003, Tamman prepared a PPM that failed to disclose

all material risks and facts pertaining to the investment. In

2004, when the National Association of Securities Dealers,

now known as the Financial Industry Regulatory Authority

(FINRA), began an examination of NewPoint that required

disclosure of the 2003 PPM, Tamman made substantial

changes to the 2003 PPM and provided the new, backdated

version to FINRA without disclosing that any changes had

been made.

From 2005 to 2009, Farahi raised over $30 million from

investors through debentures. Although he represented to the

investors that these debentures were low-risk investments,

Farahi used the funds for various undisclosed purposes,

including payment of his own personal expenses, principal

repayments to previous investors, and higher-risk futures

options trading. In 2008, his loss of approximately $26

million from option trading significantly hampered his ability

to repay NewPoint investors and creditors. Nevertheless, he

continued to assure investors that their funds were safe and

began to raise additional money to pay back prior investors,

sustain his personal expenses, and engage in options trading.

In 2009, the SEC visited NewPoint’s offices while

investigating a tip that Farahi was running a Ponzi scheme. 
6 UNITED STATES V. TAMMAN

After meeting with Farahi, Tamman created more backdated

versions of PPMs with added disclosures. Throughout the

SEC investigation, Tamman continued to edit backdated

PPMs and promissory notes.

In 2012, Tamman was indicted and charged with one

count of conspiracyto obstruct justice, one count of accessory

after the fact to mail fraud and securities law violations, five

counts of altering documents to influence a federal

investigation, and three counts of aiding and abetting Farahi’s

false testimony at an SEC deposition. On October 5, 2012,

Tamman waived his right to a jury trial and opted for a bench

trial. During in limine hearings on October 1, 2012, and

October 15, 2012, the district court excluded Tamman’s

experts, Mason Dinehart and Stanley Lamport. The district

court offered Tamman the chance to revise Dinehart’s report

and requested that the substance of Lamport’s report be

included in a trial brief. His case proceeded to trial on

October 31, 2012.

In November 2012, the district court found Tamman

guilty, and in September 2013, sentenced him to 84 months

of imprisonment, well below the calculated Sentencing

Guidelines sentencing range of 151 to 188 months.

II. Discussion

On appeal, Tamman argues that his conviction was the

result of an unconstitutional jurywaiver and expert testimony

exclusion, as well as inadmissible hearsay. He also argues

that three errors at sentencing—simultaneous application of

the Broker-Dealer and Special Skill enhancements, and
UNITED STATES V. TAMMAN 7

calculation of loss and number of victims—necessitate

remand. We disagree.1

A. Alleged Sentencing Errors

The district court sentenced Tamman as an accessoryafter

the fact to Farahi’s crimes of mail fraud and unregulated offer

and sale of securities, pursuant to U.S.S.G. § 2X3.1. That

Sentencing Guideline provides that the applicable base

offense level for a defendant-accessory is the total offense

level of the principal’s crime, including any applicable

special offense characteristics that were known or reasonably

should have been known by the defendant-accessory, less six

levels. U.S.S.G. § 2X3.1 cmt. n.1. Once the district court

determines the base offense level, the district court must also

apply any specific offense characteristics applicable to the

defendant-accessory’s conduct.

In Tamman’s case, the base offense level was therefore

the total offense level for Farahi’s mail fraud and securities

crimes, which is prescribed by U.S.S.G. § 2B1.1, less six

levels. Farahi’s mail fraud and securities crimes included the

following special offense characteristics: a 22-level

enhancement for loss under § 2B1.1(b)(1)(L); a four-level

enhancement under § 2B1.1(b)(2)(B) because the crime

involved 50 or more victims; and a four-level enhancement

for Farahi’s role as an investment adviser during the

commission of a securities law violation under

§ 2B1.1(b)(18)(A). The district court found that the total

offense level for Farahi’s mail and securities crimes,

including applicable special offense characteristics, was 37. 

Pursuant to U.S.S.G. § 2X3.1(a), the district court reduced the

 

1

 We have jurisdiction pursuant to 28 U.S.C. § 1291.
8 UNITED STATES V. TAMMAN

total offense level by 6 to ascertain Tamman’s base offense

level for his accessory after the fact crime. However, because

§ 2X3.1 caps the maximum base offense level at 30, the

district court determined that Tamman’s base offense level

was 30.

Upon calculating the total offense level for Farahi’s crime

and subtracting the requisite levels, the district court then

added special offense characteristics specific to Tamman: a

two-level enhancement for Tamman’s use of his lawyering

skills to commit the crime under § 3B1.3 and a two-level

enhancement for Tamman’s role in impeding the SEC

investigation under § 3C1.1. After applying the Special Skill

and Obstruction of Justice enhancements, the district court

calculated Tamman’s total offense level as 34.

Tamman challenges the dual application of the BrokerDealer and Special Skill enhancements, as well as the district

court’s factual findings as to the total loss amount and total

number of victims. We review the district court’s

interpretation of the Sentencing Guidelines de novo and its

findings of fact at sentencing for clear error. United States v.

Gadson, 763 F.3d 1189, 1219 (9th Cir. 2014).

1. Application of Broker-Dealer and Special

Skills Enhancements

Tamman contends that the dual application of the BrokerDealer enhancement and the Special Skills enhancement was

improper and barred by the Sentencing Guidelines. In

support, Tamman cites the Sentencing Guideline Application

Note to § 2B1.1(b)(18)(A), which states, “[i]f subsection

(b)(18) applies, do not apply § 3B1.3.” U.S.S.G. § 2B1.1

cmt. n.14(C) (2012) (2014 version at cmt. n.15(C)).
UNITED STATES V. TAMMAN 9

As this court has long acknowledged, the Sentencing

Guidelines recognize the problems inherent in double

counting and, in an effort to avoid increasing a defendant’s

sentence for a harm that has already been fully taken into

account, expressly prohibit the dual application of Sentencing

Guidelines that account for the same harm. United States v.

Smith, 719 F.3d 1120, 1124 (9th Cir. 2013) (citing United

States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010); United

States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007)). 

“However, ‘when each invocation of the behavior serves a

unique purpose under the Guidelines,’ we conclude that the

Commission ‘authorized and intended’ the cumulative

application of both provisions.” Id. (quoting Holt, 510 F.3d

at 1011).

In 2003, the Sentencing Commission amended the

Broker-Dealer enhancement to cover registered brokers and

dealers, associated persons of a broker or dealer, investment

advisers, and associated persons of an investment adviser. 

U.S.S.G. app. C, vol. II, at 367 (amend. 653) (2014). The

rationale accompanying the amendment explains:

The Commission concluded that a four level

enhancement appropriately reflects the

culpability of offenders who occupy such

positions and who are subject to heightened

fiduciary duties imposed by securities law or

commodities law similar to duties imposed on

officers and directors of publicly traded

corporations. Accordingly, the court is not

required to determine specificallywhether the

defendant abused a position of trust in order

for the enhancement to apply, and a

corresponding application note provides that,
10 UNITED STATES V. TAMMAN

in cases in which the new, four level

enhancement applies, the existing two level

enhancement for abuse of position of trust at

§3B1.3 (Abuse of Position of Trust or Use of

Special Skill) shall not apply.

Id.

As the Commentary makes clear, the prohibition on the

dual application of the Broker-Dealer and Special Skill

enhancements reflects the Commission’s view that the

Broker-Dealer enhancement already accounts for the BrokerDealer’s role and that application of both enhancements

would amount to double counting. However, we hold that

this rationale does not apply in cases like the one at hand,

where the Broker-Dealer enhancement reflects the behavior

of the principal and the Special Skill enhancement reflects

separate and distinct behavior of the defendant-accessory. In

that situation, application of both special offense

characteristics is not double counting; it reflects different

conduct committed by two different parties. We therefore

affirm the district court’s application of both enhancements

in this case.

2. Calculation of Loss Amount

Next, Tamman argues that the district court erred in

calculating a loss figure greater than $20 million under

U.S.S.G. § 2B1.1(b)(1) because he was only aware of $11

million in loss. According to Tamman, the extent of the loss

was not an essential element of Farahi’s crime and he

therefore cannot be charged with knowledge of that loss

amount by his mere status as accessory to that crime.
UNITED STATES V. TAMMAN 11

U.S.S.G. § 2B1.1(b)(1) requires a sentencing court to

increase the base offense level in accordance with the amount

of actual or intended loss that the crime inflicted. Actual loss

includes the amount of pecuniary harm that the “defendant

knew or, under the circumstances, reasonably should have

known, was a potential result of the offense.” U.S.S.G.

§ 2B1.1 cmt. n.3(A)(I), (iv). Under U.S.S.G. § 2X3.1, the

amount of loss is limited to the amount of which the

defendant-accessoryknew or should have reasonably known. 

Id. § 2X3.1 cmt. n.1.

Although Tamman is correct that the extent of loss was

not an essential element of Farahi’s crime, the district court

did not end its loss examination there. First, the district court

examined the PPMs that Tamman backdated. It credited the

amounts disclosed therein because Tamman had altered the

disclosures so that it would appear that the disclosures

originally made to investors matched the current financial

situation of NewPoint. Given that the purpose of revising the

PPMs was to reflect NewPoint’s actual financial condition,

the district court did not clearly err by relying on the amounts

disclosed in the revised PPMs. Second, the district court

properly credited the testimony of Elaheh Amouei, Farahi’s

bookkeeper, which indicated that Tamman had substantial

knowledge of Farahi’s activities. Based on this combination

of evidence, the district court correctly held that the full

measure of Farahi’s loss would have been foreseeable to

Tamman.

3. Calculation of Number of Victims

Finally, Tamman argues that the district court erred in

finding that the crime involved more than 50 victims under

§ 2B1.1(b)(2) because Tamman was only aware of at most 43
12 UNITED STATES V. TAMMAN

investors. According to Tamman, the evidence only

demonstrates that he knew of 30 investors from the 2008

offering and 13 investors from previous offerings.

U.S.S.G. § 2B1.1(b)(2) requires the district court to

increase the base offense level in accordance with the number

of victims that the offense involved. Once again, because of

§ 2X3.1’s knowledge requirement, the court can only count

the number of victims about whom the defendant-accessory

knew or reasonably should have known. U.S.S.G. § 2X3.1

cmt. n.1.

Although Tamman is correct that the evidence only

proves that Tamman had actual knowledge of 43 victims, the

district court did not err in finding that Tamman could have

reasonably foreseen the additional 41 victims of Farahi’s

crime. The district court considered that Tamman, as an

accessory after the fact to Farahi, had knowledge of Farahi’s

mail fraud and Ponzi scheme. The mere fact that his actual

knowledge may have been limited to 43 victims does not

preclude a finding that all of the victims were reasonably

foreseeable to him. Accordingly, the district court did not

clearly err in calculating the number of victims under

§ 2B1.1(b)(2).

B. Jury Waiver

Tamman’s second claim on appeal is that the district court

failed to make an adequate inquiry or provide sufficient

information to Tamman to ensure his jury waiver was

knowing, voluntary, and intelligent. Tamman contends that,

upon learning that Tamman took medications and that

Tamman was unsure as to whether he was “under the

influence,” the district court had the duty to conduct an in-
UNITED STATES V. TAMMAN 13

depth colloquy to assess Tamman’s competence. 

Additionally, Tamman argues that because the district court

gave him less time than he originally requested to decide

whether to waive a jury, his stress and anxiety may have

exacerbated the impact of his conditions and medications. 

Finally, Tamman argues that the district court failed to

sufficiently inform him of the rights he would relinquish

pursuant to a jury waiver, as required under United States v.

Cochran, 770 F.2d 850, 853 (9th Cir. 1985). “We review the

adequacy of a jury-trial waiver de novo.” United States v.

Shorty, 741 F.3d 961, 965 (9th Cir. 2013).

1. Adequacy of the Inquiry

A criminal defendant may waive his right to trial by jury

if there is (1) a written waiver that is knowing and intelligent,

(2) governmental consent, and (3) court approval. Fed. R.

Crim. P. 23(a); United States v. Duarte-Higareda, 113 F.3d

1000, 1002 (9th Cir. 1997). Although written waivers are

presumptively knowing and intelligent, a district court must

nevertheless conduct an in-depth colloquy if “the defendant’s

mental or emotional state is a substantial issue.” United

States v. Christensen, 18 F.3d 822, 825 (9th Cir. 1994). In

other words, “[t]he suspected presence of mental or emotional

instability eliminates any presumption that a written waiver

is voluntary, knowing or intelligent.” Id. at 826.

Here, when Tamman stated that he was unsure whether he

was under the influence of his medications, the district court

carefully inquired whether those medications affected his

understanding of the proceedings and the nature of the right

that he was waiving. Tamman responded that they did not. 

Moreover, Tamman’s behavior and responses to questions

throughout the proceeding indicated that he was competent to
14 UNITED STATES V. TAMMAN

waive his right to jury trial, and Tamman’s attorney

represented to the district court that Tamman was competent

to make the waiver. Tamman presents no evidence that the

expedited time frame for the jury waiver would have had any

effect on his competence.

The only evidence upon which the district court could

relywere the responses Tamman provided to its questions, his

behavior throughout the hearing, and the representations

made by his attorney. That evidence indicated that Tamman

was competent to waive his jury trial, and this court affirms

the district court’s finding.

2. Sufficiency of the Colloquy

Before a defendant waives his right to a jury, the district

court must ensure that he knows what the right guarantees. 

Cochran, 770 F.2d at 853. Accordingly, district courts are

strongly encouraged, although not required, to inform

defendants that “twelve members of the community compose

a jury,” that “the defendant may take part in jury selection,”

that “jury verdicts must be unanimous,” and that “the court

alone decides guilt or innocence if the defendant waives a

jury trial.” Id. However, the sufficiency of the colloquy is

highly dependent on the education and legal sophistication of

the defendant, and shorter colloquies can be sufficient to

ascertain whether the waiver is knowing and voluntary. See

Shorty, 741 F.3d at 968 (noting that an abbreviated colloquy

might have been sufficient had the defendant been

“intellectually sophisticated and highly educated”).

Here, as a practicing attorney and partner at a major law

firm, Tamman was well aware of the rights that a jury trial

would entail. The district court reasonably concluded that
UNITED STATES V. TAMMAN 15

Tamman’s competence, background, and experience ensured

that he understood the mechanics of a jury trial and the rights

he was waiving, even without an in-depth colloquy or a

recitation of the four facts mentioned in Cochran. 

Accordingly, this court affirms the district court’s finding of

knowing and intelligent waiver.

C. Evidentiary Errors

Finally, Tamman challenges the district court’s exclusion

of expert testimony from Mason Dinehart and Stanley

Lamport, as well as the admission of a statement from

Amouei. Because Tamman did not preserve these evidentiary

objections, the court reviews for plain error.2

2 When excluding Dinehart’s opinions, the district court specifically

indicated that it only excluded Dinehart’s testimony as written and gave

Tamman the opportunity to revise and resubmit the opinions, making it

clear that the ruling was provisional. To preserve the error for appeal,

Tamman would have needed to make an offer of proofto the district court,

outlining the testimony that was excluded. Because Tamman did not do

so, he failed to preserve the error on the exclusion of Dinehart’s testimony

and the court reviews for plain error. See United States v. Archdale,

229 F.3d 861, 864 (9th Cir. 2000) (“[The] contention that the mere filing

of a motion in limine preserves for appeal the issue of the admissibility of

the evidence to which the motion is directed is without merit.”).

Similarly, the district court was clear when it excluded Lamport’s

expert report that Tamman was to revisit the admissibility of Lamport’s

testimony in both his trial brief and during the course of trial. Because the

district court’s in limine ruling excluding Lamport was not definitive and

because Tamman failed to revisit the issue or present a subsequent offer

of proof, the court reviews the district court’s decision for plain error. 

United States v. Bishop, 291 F.3d 1100, 1108 (9th Cir. 2002) (“In the

absence of an offer of proof . . . reversal will lie only where there is plain

error.” (internal quotation marks omitted)).
16 UNITED STATES V. TAMMAN

1. Expert Opinions

In general, an expert may only testify as to “scientific,

technical, or other specialized knowledge [that] will assist the

trier of fact to understand the evidence or determine a fact in

issue”; an expert cannot testify to a matter of law amounting

to a legal conclusion. Fed. R. Evid. 702(a); Aguilar v. Int’l

Longshoremen’s Union Local No. 10, 966 F.2d 443, 447 (9th

Cir. 1992).

The district court concluded that Dinehart’s opinion

provided only a recitation of facts and the legal conclusion

that Tamman acted in conformitywith unidentified SEC rules

and regulations and otherwise did not break the law. This is

not a proper expert opinion. Moreover, as the district court

noted, Dinehart, who is not a lawyer, does not appear to be

qualified to offer the opinions that he presented. 

Accordingly, the district court did not plainly err in excluding

Dinehart’s testimony.

The district court excluded Lamport’s opinion regarding

Tamman’s professional and ethical duties as an attorney in

Finally, Tamman did not object to Amouei’s payment testimony at the

time it was elicited. He argues that his objection to earlier testimony by

Amouei, on the grounds that she was not a coconspirator, was sufficient

to preserve an objection to her later payment testimony. However, the

payment testimony is completely distinct from the earlier testimony, and

the district court did not make a blanket ruling that any hearsay statement

from Amouei automatically qualified as being in the course of and in

furtherance of the conspiracy. Accordingly, Tamman did not preserve the

error for appeal, and the court reviews the district court’s decision for

plain error. See United States v. Bridgeforth, 441 F.3d 864, 869 (9th Cir.

2006) (noting that if a party does not “object at trial to the district court’s

decision to admit a co-conspirator’s statements, [the court] review[s] their

admission for plain error”).
UNITED STATES V. TAMMAN 17

part because the trial had shifted from a jury trial to a bench

trial and the district court did not believe live testimony was

necessary on the issues presented in Lamport’s report. 

Instead, the district court concluded that the applicable ethical

standards could be presented in a trial brief. Because a

district judge has the discretion as to the necessity of expert

testimony, the district judge’s determination that he was

capable of understanding Lamport’s testimony through a

written proffer in a trial brief was not plain error. See Hooper

v. Lockheed Martin Corp., 688 F.3d 1037, 1053 (9th Cir.

2012) (“[E]ven if expert testimony may assist the trier of fact,

the trial court has broad discretion to admit or exclude it.”

(alteration and internal quotation marks omitted) (quoting

Beech Aircraft Corp. v. United States, 51 F.3d 834, 842 (9th

Cir. 1995) (per curiam)).

2. Amouei’s Statement

Under Federal Rule of Evidence 801(d)(2)(E), a statement

of one coconspirator is admissible nonhearsay against other

coconspirators as an admission of a party-opponent, if the

statement was made during the course of and in furtherance

of the common objectives of the conspiracy. “Although mere

conversations or narrative declarations between

coconspirators are not in themselves sufficient to invoke the

exception to the hearsay rule, statements made to keep

coconspirators abreast of an ongoing conspiracy’s activities

satisfy the ‘in furtherance of’ requirement.” United States v.

Williams, 989 F.2d 1061, 1068 (9th Cir. 1993).

In the statement at issue, Amouei testified that Farahi told

her that he had previously settled one of Tamman’s legal bills

by paying Tamman in cash. Farahi’s statement informed

Amouei of the state of the conspiracy and the bookkeeping
18 UNITED STATES V. TAMMAN

necessarily associated with the conspiracy, and it took place

while the conspiracy was ongoing. Moreover, the statement

helped further the conspiracy by informing Amouei about the

transfer of money within the conspiracy, which ensured that

the bookkeeping of the conspiracy was accurate. The

testimony is therefore coconspirator nonhearsay and the

district court did not plainly err in admitting the statement.

III. Conclusion

In conclusion, we affirm the district court’s dual

application of the Broker-Dealer and Special Skill

enhancements under the facts of this case, since the former

reflected the principal’s conduct and the latter reflected the

defendant-accessory’s conduct. Additionally, we hold that

the district court did not err in calculating the loss or victim

figures at sentencing. Finally, we affirm the district court’s

finding of jury waiver and its evidentiary rulings.

AFFIRMED.