## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 04-10 59

___________ United Stat es of America, * * Appellee, * * v. * * James R. Nichols, * * Appellant

. *

___________ Appeals from the United States No. 04-10 62 District Court for the

___________ Wester n Distric t of Missour

i.
United Stat es of America, * * Appellee, * * v. * * Robert Gomez, * * Appellant

. *

___________ Submi tted: Janua

ry 10, 2005 Filed: August 5, 2005

___________ Before S MITH, HEAN EY, a nd COLL OTON , Circui t Judges.

___________1 The Honorable Nanette K. La ughrey , United

States D istrict Jud

ge f or the Wester n Distric t of Missour

i.

2 As th e sc heme gained publi city, the low-pric ed vehicle s became known as the "miracle cars" or the "e state cars." -2- SMITH, Circuit Judge.
James R. Nichols and Robert Gomez appeal their convictions of conspiracy to
comm itinte rstate transporta

tion of property by

fraud, interstat e transpor tation of property stolen by fraud, conspirac y to comm it money laund ering, m

oney la undering, and civil forfeiture. Following a joint- jury trial, the district court 1 sentencedNichols to a total term

of 292 m onths' im

prisonm ent and Go mez to a total ter m of 2 62 month s' imp ris on ment . We a ffi rm.

I. Backgroun d Between 1998 and 2002, Nichols and Gomez ma sterminded a nationwide frau d and mon ey-l aun der in g s che me involving the sale of non existent m

otor vehicl es from
a nonexistent pro bate estate. To perpe trate the fraud, Gome z claimed to be the adopted son of one J ohn Bowers, decease d, and thesole heir to his estat e. Nic hols represented

himse lf as the execu tor of John Bowers's estate. In actuality, there was
no John Bowers . Nichol s and Gom ez crea ted Bowe rs, and th en used this fictitious person to defraud ot hers–pri marily persons of rel igious f aith.

To snare the

unw ary, Nichols a

nd Gom ez told potential inves tors that Jo hn Bowers had died and left an estate w orth approx imate ly $400 m illion. A ccording to the two, Bowers l eft instr

uctions to reward persons of religious faith by offering them the opportunity

to purchase automobiles at a very low price. 2 The vehic les were said to be betwe en one and t

wo- year s oldand were offered for sale at prices betw een $1000 and

$5000. Nichols and Bowers told purchasers that they would have to pay for the cars up front, and

that their money would be pl aced in a non-intere st bearing-3-

account until the estate closed. Supposedly, the probate judge i mposed re strictions preventing

the disclosure of details about the individual cars. Howev er, purchasers could req uest a refun d of their p urchase money at any time.

The scheme was initially aimed at m embers of Nichols's hom e c hurch in southern California. However, as new s of the vehicles spread, other southern Californ ia church es were targeted

. At first , only

Nichols' s family

promo ted the sal e of the "estate cars," but others were even tually en listed to spr

ead the w ord. Gwen dol yn Baker, a reside nt of Memphis, Tennessee, began sell ing the "est ate car s" through churches in the Memphis area aft er contacting Nichols and Gomez. Baker
was later int

roduced to D r. Corinne Conwa y of H igginsvi l le, Missouri, who then promoted the sale of

the ficti t ious cars nationwide through her

organiza tion, the V irtuous Women's Int ernational Ministry . Unwit ting people across the n ation sold the fictitious cars to mem

bers of their local churches bec ause of Dr. Conway' s promo tions. Those wi thin the sch eme called the se persons "finders" be cause they found purchasers for the "estate cars."
Money collected through Baker, Dr. Co nway , and thefinders w as funnele d to Nichols who deposit ed the funds in a Calif ornia bank account. N icho ls wou ld then transfer a portion of the funds to California casino ac co unts where Gom ez would exchangethe money

for casino chips or c ash. Nic hols also m ade direc t withdra

wals from the accou nt to get ca sh, make

transfer s to fam

ily m embe rs, and to buy veh icles. In add it io n, a s th e sc heme progresse d, Nicho ls would refund m oney to purchase rs of the "es tat e car s" wh o wer e un will ing to wa it f or d eli ver y. Over

the course

of the scheme, Gome z and Nic hols colle cte d more than $21 m

illion from

the sale of

the "estate c ars," but

refunded approxim

ately $8.5 million.

The car scam began to run out of gas when the Missouri Attorney General's Office was not ified of

the scheme and began an investigation. The United States Postal Inspectors and the Feder al Burea u of Investi gation later joined in the-4-

investi gation. From those investigations, a Missouri Grand Jury returned a twen ty

three coun t indictment a gainst Go mez and Nichols.

Prior to trial, Gome z and Nic hols sought to h ave their respective cases severed
a nd t ried sepa

rately . The di strict cou

rt denied t

heir m otions. G omez

also sought to dismis s the m oney la

undering co unts of theindictment for lack of venue. The district court also denied that motion. At trial, Nichols testified in his own de fense cla

iming that Gomez had

set him up. Gom ez did not te stify. The jur y ret urned guilty

verdicts against both Nichols and Gomez. After reviewing a presentence investigation report (PSR), and

conducting a

sentencing

hearing, the distric t court sen tenced N ichols to
a total ter m of 2 92 months ' imp risonm ent and Go mez was sentenced to a te rm of 262 months' impr

isonment. This j oint appeal followed

.
II. Discussion Tog ether, Nic ho ls and Gome z as ser t a t ot al o f ei gh t p oi nt s o n ap pea l. S ome argum ents are pre ssed by

both, and ot

hers are brought inde

pendently . We address the joined argum ents together, and the individual a

rgu ments will b e ad dre sse d se par atel y.
A. Severance – Nichols and Gomez BothNichols and Gomez assert that the district court erred in refusing to sever the trial. T

hey m aintain tha

t their m utually antagonisti c defense s n ecess itated
sev eranc e. We re view a dis trict cour t's denial of a m otion to seve r for an a buse of discretio n. United

States v. Mickels on , 378 F.3d 810, 817–18 (8th Cir. 2004). In order to reverse , the appe llant m ust show tha

t his or her

right to a fair t rial wa s prejudi ced. Id. ; see also Za

firo v. U nited States

, 506 U.S. 534 (1993). D efendants who are jointly indicted on simi lar evide nce from the sam e or

related events shoul d norm ally be tried together; to warrant severance a de fendant m ust show "real prej udice"; tha t is, "some thi ng more than the m ere fact that he would have had a better chance fo r acquittal had he bee n tried s eparatel y." Mickelson , 378 F.3d at 817–18. (c itations omitted). A defendant can demonstrate real pre judice to his right to a f

air trial by-5-

showing: (1) his defense is irreconcilable with that of his co-defendant; or (2) the jury will be unable t o comp artm entalize the eviden ce as it relates to t he separa

te defendant s. Id. Howeve r, sever ance is not

required merely be cause evi dence tha t is admissible o nly against s ome defendants may be damaging to other s. Id

.
In this case, Gomez' s defense strategy was that he knew nothing about the Bowers's estate or

the schem

e to sell "e state car s" at low prices. He explained that he
was a profess ional gam

bler and th at Nichol s was " bac kin g hi s pl ay" as an inves tment

. Nichols, on the other

hand, cla

imed t hat he wa s duped and m

isl ed by G omez

who alon e mast ermi

nded the ent

ire schem

e. To th at extent, Nichols c laime d that h e actually believed G omez

was the heir

of the Bow ers's es tate and th at the sale of the "estate cars " was completely legi timate. "Mutually

antagonisti c defense s are not pr ejudicia l per se. " Zafiro v . United States, 506 U.S. 534, 53 8 (1 99 3). The Sup reme Court spec ifically rejec ted the noti on that defendant s who have contradic to ry def enses are inherentl y prej udiced sim

ply because "a jury

will conclude [either] that both defendants are lying and convict them both on that bas is, or that at le ast one of t he two m ust be guilty

without re gard to whether the Government has proved its casebeyond a reasonable doubt." Id. at 540;
see also United States v. Bla nkenship , 382 F.3 d 1110, 1125 ( 11th Cir. 2004) ("The Sup reme C ourt has h eld that co -defenda nts do not suff

er prej udice sim

ply bec ause one co-defendant's defense directly inculpates another, or it is logically imposs ible for a jury to believ e both co-d efendants ' defenses.")

.
We first examine whether t he defenses asserted by Gom ez and Nichols are actually irreconcilable. As already stated, Gomez

asserts thatNichols w as backing h is gam bling and Nicho ls asserts that Gom ez duped him . These

two storie s ar e reconcilable. Specifi cally , Nichol s could very well have been duped by Gom ez while at the same tim e giving Gomez m oney to finance his professional gambling. Stated another way, Nichols's contention that he was duped did not necessarily require that-6-

the jury either acce

pt or rej ect the defense t hat Gom ez m erely receive d gamb ling support funds. L ikewis e, G ome z's conte ntion did not require the jury to accept or reject the defen se that Nich ols was an u nwilling participa nt.
Neither Gome z nor

Nichols disputes that nonexistent cars were sold with much of the proce eds funneled t

hrough Nichols to casinos w

here Gom ez rece ived the fu

nds in the form

of gam bling chips. See United States v. Serafino , 281 F.3d 327 , 330 (1st Cir. 2002) ("Serafino ne ver dis puted that the MB C vendors f unneled pay

ments through his com panies' accounts, and

Peckham 's content ion that he w as neither

the mastermind

nor the driving force behind the s chem e did not nec essarily require that the jury either acc ept or reje ct the def ense that S erafino w as an unwi tting participant."). Attheir core, both Nichols's defense and Gomez 's defense asserted that they did not know o f the fraud. See United States v. Jackson , 64 F.3d 1213 , 1217 (8th Cir. 1995) cert. de nied, 516 U.S. 1337 (1995) (holding that defenses by drug offe nse co-defe ndants that neither had knowle dge of drugs in a package were reconcilable).

We next examine whether the jury could compart mentali ze the evid ence. We have held that in

reviewi ng the "con sideratio n of the j ury' s ability to compartm entalize the eviden ce agains t the join t defenda nts, we consider 1) the compl exity

of the case; 2) if one or m ore of the defendant s were a cquitted; a nd3) the adequacy of admonitions and instructions by the t rial judge." United States v. Pherigo , 327 F.3d 690 , 693 (8th Cir. 2003). The case against Gomez and Nichols was not compl ex. At t

rial, th e governm

ent contend ed that Go mez pretended to be the he ir of a fictiti ous estatewhile Nichols acted as the exe cutor of th at estate . Accor ding to the governm en t, Gomez and Ni chols both cl aime d that the e state wa s selling automobiles at reduce d prices th at would be de livered u

pon the probate court's clos ing of the est ate. They co llected m oney f rom sa les of phan

tom ve hicles whic h
w ent to Nichols , who the n diverted a portion of that m oney to Gome z through casinos. Indeed, the charges against Gome z and Nic hols were virtually identical , save a few in dependent incidents. Neither party was acquitted.3 The jury requeste d to see ce rtain docum ents adm itted at tr ial, and the dep uty clerk gave them a box of

docum ents that m

istakenly contained investigati on reports that were not admitted into evidence. -7- Last ly, neither defendant objected to the district court's jury instructions. W e, therefore, do not find the trial judge's admon ition s and instruction to the jury inadequate. Blam e-shiftin g on the par t of the defendant s "is not a su fficient reason fo r severance." United

State s v. Bas ile , 109 F.3d 1304, 1310 (8th Cir. 1997) (en banc) (citing United

States v. Bordeaux, 84 F.3d 1544 , 1547 (8th Cir .1996)). Here, Nichols and Gom ez sim

ply point ed the fin ger , ea ch a dmi tt in g t hat a sc heme was em ployed, but both asserting that they had no knowledg e of the f

raud. They

have fail ed to show that the jury

could not h ave considered the evidence against each of them ind epe nde ntl y. Under the se circum stances, we canno t say t hat the dist

r i ct court abused its di scretion.

B. Erroneous S ubmission of

Docume nts During Jury

Delibera tions – Nicho ls After delibera tions com menc ed, one j uror notif

ied the dist

rict cour t that the jury haderroneou sly been given a box o f investiga tion repor ts prepared by

an agent of the Calif ornia Div ision of Ga

ming C ontrol. 3 Attached to some of the reports were
se arch warra

nt affida vits and prob able caus e declarations. W hen Nichol s's de fens e coun sel learn ed of the error, a motion for mistrial was im mediately m

ade. At that point, the district court conducted a voir dire of the jury to determ

ine wheth er any

of the jurors h ad actual ly re ad the docum ents. Al l jurors denied re ading the documents. Satisfied that there

had been no prejudice by the erroneous submis sion of the documents, the district court denied Nichols's motion for mistrial. The jurors were allowed to deliberate and then returne d a guilty verdict. The court, again, confirmed that none of

the juro rs consider

ed the err oneously submit ted documents.4 In R h odenizer , we he ld that the j ury' s viewing o f inadm issible drug paraph erna lia

mista kenly l eft in a bag entered into evidenc e, though e rror, di d not result in clear prejudic e, and thu s did not req uire a m istrial. We exp lained tha

t the other evidence against the defendant was extremely strong, the government had already introduced

photographs of drug par

aphernali a found in a

cam per shell o f the defendant's truck, a

nd the court

issued a curative instructio n admo nishing the j ury not to consi der the con tents of t he bag. 106 F.3d at 225

. -8- We have held t

hat a denia

l of m ist rial based on the erroneous submis sion of evid ence to the jury will be reviewed for an abus e of discret ion. United States v. Rhodenizer , 106 F.3d 222 , 225 (8th C ir. 1997) . For re versal, the appell ant must sh ow that an abuse of

discretio n resulted in clear preju dice. Id

. 4 Nichols's claim of prej udice supposes that the jury

actu all y read the documents and consi dered the m in delibera tions. The district court's jury poll, whi ch showed n o juror r ead the disputed documentation, contradicts Nichols's claim of prejudice, which am ounts to no more than speculation. Even where the trial court errs, it can often aver t any un due prejudice by givin g acurati ve instru ction. Id. Nichols ha s failed t o show that the mista ke in subm itting these

docum ents affect ed the ju ry del iberations in any way. A defendant is entitled to a "fair trial, not a perfect one." Id . (cita tion omitted ). We cannot say that the district court abused its d iscretion in deny ing the m

istrial m otion. Furthermore, basedon the distr ict court' s caref

ul polling and

admon ition

of the j urors, we hold that an

y err or in erroneously submitting the documents to the jury was harmless. C. Sentencing Errors BothNichols a

nd Gom ez argue

on appeal t

hat the dist

rict cour t erred b y finding facts to enhance the ir sentence s and by

viewing the Guid eli nes as man dat ory. See United States v. Booker ,125 S. C t. 738 (2005) ( holding that t

he Sixth A

mendm ent to the United States Constitution requires that facts "necessary to support a sentence exceeding

the maxim

um authorized by the fac ts established by a plea of guilty or a jury ver di ct mu st be a dmi tted by the d efendant or proved t o a jury beyond a reasonabl e doubt," an d excising the po rtion of the

Sentencing Reform

Act of 198 45 March 30, 2000 , is the approximate tim e that Nichols and Gomez wer e contacted by a criminal invest igator. -9- that made the Guide lines m andatory .). The distric t court m ade fact ual findings to support sentence enhancements and applied the Sent enc ing Guid eli nes as man dat ory. Neither Nichols nor Gomez objected to the court's applicati on of the Guideline s with specific reference to Apprendi , Blakely , or the S ixth Am endment, and thus , we review the Sixth Am

endmentclaim s for

plain erro r. United Stat

es v. P irani , 406 F.3 d 543, 549–50 (8th Cir. 2005) (en banc).

Our plain err or analy sis of Booker

issues focuses on "what sentence would have been imposed absent the error." Pirani , 406 F.3 d at 551. ( empha sis in original). Under this standa

rd, an appellant m

ust demonstrate "a reasonable probability that he [or she] would have received a m ore favorable sentence with t he Booker

error eliminated

by making the Guidelines advisory." Id . Because "[n]othing in the record suggests areasonab le probabil ity that the district court would have imposed a more lenien t sentence absent Booker error, . . . [

Nichols and Gomez] ha[ve] not carried [their] burden." Id . at 553.

1. Amount of Loss Under U.S.S.G. § 2B. 1.1 – Nichols and Gomez Nichols a nd Gom ez join in arguing that the district court er red in cal culating the total loss resulting fr

om the ir fr aud . Spe cifi call y, Nichols and Gomez contend that the court erred in not giving them credit f or $1,259,800 which wa s refunde d prior to the schem e's dete ction. Be ginning in Jan uary 1 , 1999 Nic hols and Gomez collected
a total of $21 ,123,830 f

rom t he car sale s schem e. Of t

hat am ount, about

$8,000,000
was refunded , and of therefund am ount, $1,2 59,885 wa s refunde d prior to th e offense being detected . The di strict cou rt ruled t hat the total loss w ould be base d on a figure greater than $20,000,00 0. Nichols and Gomez argue that they should have received credit for the $1, 259,885 re funded prio r to Marc h 30, 2000, 5 resulting in a total los s of just und er $20,000 ,000.-10-

We review the applicati on of Sente ncing Gui delines d e novo. United States v. Mashek , 406 F.3d 101 2, 1016 (2005); United Stat es v. R ed Elk

, 368 F.3d 104 7, 1051 (8thCir. 2004). H owever, "[l]os s calcula tions also inv olve factu al findin gs, which we review for clea

r error and rever se only

if 'weare lef

t with a definite and firm conviction

that the district court erred.'" United Stat es v. Li veoak , 377 F.3 d 859, 866 (8thCir. 2004 ) (citat

ions om itted); See also Mashek , 406 F.3d at 1017 (citin g United States v. Killg

o , 397 F.3 d 628, 631 (8 th Cir. 20 05)). The Guidel ines prov isi on applicable

to fraud cases provides for a graduated increase in the base offense level depending

on the am

ount of loss r

esulting fr

om con duct rele vant to thecount of
conv iction. U .S.S. G. § 2B1. 1. Under the Sente ncing Guide lines, the base offense level for fraud is adjusted upward if the loss resulting fr om the fra ud exceeded $5,000. See U.S.S.G. § 2B1.1(b)(1). Where the loss is greater than $20,000,00 0 but not more than $50,000,000, twenty-two levels are added. U .S.S.G. § 2B1.1(b)( 1)(L). When the loss is great er than $7,000,000 but not m ore than $20 ,000,000, twenty levels are added. U.S.S. G. § 2B1.1(b)(1)(K). T hus, Nichols and Gomez ar gue that they w ere err

oneously assessed a

n additional

two offense levels

. Application Note 3( E)(i) t o U.S. S.G. § 2B1.1, states in pertinent pa rt:
Credits A gainst Loss. – Loss shall be reduced by

the followi

ng: (i) The money re turned . . . to the v ictim bef ore the offense was detected

. The time of detecti on of the offense is the earlier of (I) the time the offen se was discovered by a victi m or gover

nment agency; or (II) t

he time t he defendan t

knew or re asonably

should have known th at

the offense

was detec ted by a vic tim or government agency.

U.S.S.G. § 2B1.1 , cm

t. n.3(E )(i). I

n addition to t

his applica

tion note, Nichols a

nd Gomez point t o N inth Circuit precedent stating that "[a] fraud defendant is entitled to cr editfor refunds paid prior to the discovery of the offense." United States v. Bright , 353 F.3d 111 4, 1118 (9th Cir. 2004 ). More over, the Seventh C ircui t ha s6 The government argues that when a P onzi frau d schem e is em ployed, there is no credit against losses under the Guidelines. "Ponzi schemes are fra udulent busine ss ventures in which investors' 'returns' are generated by c apital from new investors rather than the suc cess of the underlying business venture. This res ults in a snow ball effectas the crea

tor of the Ponzi sche me m ust then re cruit eve n more investor s t o perp e tuate the fraud." In re Armstrong , 291 F.3 d 517, 520 (8 th Cir. 20 02). W ith respect to Ponzi sch emes , the Ninth Circui t explaine d:
The Second, Fourth, F ifth, and Seventh Circuits have held that the loss calculat ion in a Ponzi schem e should not be offset by the am ount of the victim s' recovery. See United Sta tes v. C arrozzella, 105 F.3d 796 , 805 (2d Cir. 1997 ); United Stat

es v. Lo ayza, 107 F.3d 257 , 265 (4th Ci r. 1997); United States v. Deavours, 219 F.3d 400 (5th Cir. 2000); United States v. Lauer

, 148 F.3d 766 , 768 (7th

Cir. 1998); but see United States v. Holiusa, 13 F.3d

1043, 1 046–47 (7th Cir. 1994) (holding that intended loss in a

Ponzi sche me c ase did not include am

ounts ultimately returned to investors).
These courts re ason that th e gravity of the crim e should be m

easured b y the entire sum of money that the schem ers p ut at risk through the misappropriati on regardle ss of whet her som e victim s were f ortunate enough to recove r part of

their loss. Lauer, 148 F.3d a t 768; cf. United States v. Janusz

, 135 F.3d 1319, 1324 (10th Cir. 1998) ( adopting this line of reasoning in a frau d case where t he financ ial consult ant misappropriated

clients' fund s, m ost of whic h were r ecovere d by the clients when the consultant's accounts were f roze n). Bec ause the schemers typically return

money to investors to perpetu ate the f raud and ensnare new inves tors, and no t to m itigate da

mage s to the cur

rent inve st ors, these cour

ts reason t

hat they should be hel d accounta ble for a ll of the fund s that are misapp ropriated

. See Carrozz ella, 105 F.3d a

t 805. -11- adopted a "credi t against lo s s" a pproach to t he calcul ation of fr

aud victim

loss amount s for Sent encing Gui delines pur poses. United

States v. Hausmann , 345 F.3 d 952, 960 (7th Cir

. 2003 ) (noting th e Guidelines' appli cation note s). Lik ewise, we have applied a credit

against los ses under A

pplication N ote 3(E) (i) to the fair-m arket val ue of services rendered. See United States v. Live oak , 377 F.3d 859, 867 (8th Cir. 2004). 6United

States. v. Munoz , 233 F.3d 1117, 1125 (9th Cir. 2000). The fraud perpetuated in this case was not a t

ypical Ponzi sch eme. Nichols a ndGomez

did not claim to ha

ve generated "returns " for inve stors. In stead, th ey re funded money to vic tims who request ed refunds. Nonethel ess, the P onzi ratio nale is app licable be cause Ni chols and Gomez returned funds to victims in order "to perpetuate the fraud and ensnare new [vict ims], and not mitigate dam ages to the current victim s" See United States v. Carrozzella

, 105 F.3d 796 , 805 (2d Cir . 1997). In Lauer, 148 F.3d at768, the S eventh Circuit likened Ponzi schemes to a person who embezzles m oney from his employer, planningto gamble with it and put the embezz led money bac k b efore he is discovere d. Lauer, 148 F.3d at 768. The Sevent

h Circuit explained that the embezzler should be hel d accounta

ble for the

amoun t of m oney he

stole regardless of whether he is caugh t before or aft er he returns any winnings

. Id

. -12- Even assum ing Nichols and Gomez had re ceived cr edit for t he sums returned, the district c ourt could ha ve nonetheles s readily

found the to tal frau d loss exceeded $20,000,00 0

. The district c ourt had aut hority under the G

uidelines t o consider the loss to victims th at took p lace prior t o January 1, 19 99. See U.S.S .G. § 2B 1.1 cmt

. n.3(c)) ("The c ourt need on ly make a reasona ble estim ate of the loss. The sentencing judge is in a unique

position to assess the evidence and estimate the loss basedupon that evidence . For thi s reason, the court' s loss determ ination is e ntitled to a

ppropriate deference."). Giv en t he l os s amo un t co nce ded by Ni cho ls and Gome z, only an additional $135,970 w as needed to reach t he $20,000, 000 threshol d. The dis trict court's calculat

ion did not inc lude the losses that occurred when Nichols and Gomez startedtheir scheme in southern California in 1997. In deed, the schem e was so successf ul in souther

n Califor nia that it had sprea d to Mem phis by t he fallof 1998. Furthermore, the loss calculation c onceded by Gome z and Nicho ls did not inc lude any finders' fees paid. The record supports a finding thatover $1,00 0,000 in finders' fees were pai d to Dr. Co nway, Baker, and other find ers. U

nder these

circum stances,
we are not le ft with a

definite a

nd firm conviction t

hat the dist

rict cour t erred in calculati ng a total loss ove r $20,000 ,000.-13- 2. Perjury –

Nichols Nichols next argues that the district court erred in enhancing his sentence based
on afinding tha

t he com mitte d perjur

y in his trial t estim ony. I

n making its ruling, the district c ourt state d:
Every defendant does have a right to testify in their own behalf, but they do not have a r

ight to lie un der oath. And I am not rely ing on the jury's determ ination that the defendant

was guilty

to apply this enhancem

ent. I'm rely ing on m

y own c onc lusion that his testimony was false, knowingly

false, and that it was knowingly false on material issues, a nd intended , in fact, to de ceive bot h the court and the jury.

We review a district court's factual findings underlying an obstruction of justic e enhancem

ent for clear error and its construction and application of the Guidelines de
novo. United States v. Mendoza-Gonzalez , 363 F.3d 788, 796 (8th Cir. 2004)

. A defendant is subject t o an enhan cement under U.S.S.G. § 3C1.1 if he testifies falsely underoath in reg ard to a m aterial matter and does s o willfull y rat her than out

of confusion or mistake. Id. If a def

endant obj ects to an o bstruction enhancement rely ing
on perjury, the district court m ust make findings that the defendan t wil lfully gave false testim ony conc erning material matters in th e case. Id

. We give "great deference" t o a district court 's decisio n to grant an enhancement f or obstru ction of jus tice, see United States v. Calderon-A vila, 322 F.3d 505, 507 (8th Cir . 2003), and will rev erse an e nhancem ent only when the d istrict co urt's find ings are in sufficien t, see United States v. Brooks, 174 F.3d 950, 958–59 (8th Cir. 1999).

The sentencing

cou rt can not give the upward departure "simply because a defendant testifies on his own behalf and the jury disbelieves him. " United States v. Flores , 362 F.3d

1030, 1037 (8th Cir. 2004) (quota tion om itted). To do so wo uld chill
a defendant 's constitu

tional righ

t to testi fy on his own be half. Id. Rather, once a defendant objects , the sent encing cour t must itself con duct an inde pendent evaluation and determine whethe r the defend ant committed perjury. Id. While i t is preferable for-14-

the district c ourt to address each element of the alleged perjury in a separate a

nd clear finding, the deter

minat ion is suffi cient if " the court m akes a finding of an ob struction of, or im pe dimen t t o, justice that encompasses all of the factual pre dicates for a finding of perjury." Id

.
In this case, the district court mad e an in dependent evaluation of Nichols's testim ony but did not cite to any speci fic t estim ony tha t was per jured. During the sentencing

hearing, th e government p rovided t wo bases for a finding of

perjur y. F irst, the government noted that Nichols's testimony that he had not read certa in letters he signed and pr ovided to some victim s was cont

rary to the testimony

of the vict

ims. Second, the governm

ent adver ts to Nicho ls's testimony that he was in a lim ousine with the fictitious John Bowers when Bowers w as deliver ing gold to his ra

nch. Thi s t estim ony is preposterous considering that Jo hn Bower s never ex isted. In addition , Nichols test ified that

h e deposited

money that was not gathere d from the sale of "estate cars" into a bank, but the bank records do not ref lect any suc h deposits. Nichols denied see ing certain docum ents–found in his nig htstand–that witnesses testifiedhe gave the m. N ichols testified that he never told the v ictim s that their money would be he ldin non-interest bearing accounts, but all the evidence showed the oppo site.

We conclude that there was ample evidence s upporting the obstruc tion of justice enhancem

ent and the district court's d ecision is n ot clearl y err oneous. W e have affirmed the app lication of an obstruction enhancement in a case where the district court stated, "I heard

the trial testim ony, a

nd I think [i t constitute s] obstr uction of justice." United Stat

es v. Ke ssler, 321 F.3d 699 , 703 (8th Cir. 2003); see also United States v. Brow

n, 311 F.3d

886, 890 (8t

h Cir. 200 2) (aff

irming the enhan cementon the district court's s tatem ent that, "I believ e the defendant did testify

untruthfull

y"). The district court did no t rely wholl y on th e jury's determination of guilt. See United States v. Flo res , 362 F .3d 1030, 1037 (8th Cir. 2004). Nichols's testimony w as "unequivocal" and "the record left no doubt that [his] f alse testimony

at trial was not the result of confusion, mistake, or fa ult y mem ory." Brown at 890 (cit ing United-15-

States v. Espar

za, 291 F.3d 1052, 1055 (8th Cir. 2002)). The district court mad e a specific finding tha

t, based o n his own ev aluat ion, N icho ls co mmitted p erjury. We find the senten ce of the district c ourt to be reasonable and affirm th e applica

tionof the obstruc tion enhanc emen t.

D. Insufficient Eviden ce of Mone y Launderin

g – Nichols Nichols alone argues that there was insu fficient evidence to support his convictions for conspiracy to com mit m oney la undering and mon ey laun derin g. We will reverse

a conviction for insufficient evidence only if, after viewing the evidence in the light m ost favora

ble to the jury 's verdic t, giving th e governm ent the ben efit of all reasonable inferences that may be drawnfrom

the eviden ce, no co nstruction o f the evidence will support the jury's verdic t. United Stat es v. B eltz , 385 F.3 d 1158, 1163 (8th Cir. 20 04).

The essence of Nichol s's argum ent is that the money tra

nsfers and expenditures
wer e d one openly

and without

an intent to conceal. A mo ney la undering vio lation requires proof of c oncealment, not th e absence of full dis clo sure. Un ited States v. Shoff , 151 F.3d 889, 891 (8th Cir. 1998). Here, Nichols de posited all

the funds in

a single bank account registeredwith Nic hols's nam e and social security

numbe r. The funds were then transferred to accounts in Nichols's nam e and in Gomez's nam e at gambl ing casinos w ith checks drawn on t he account

and signed by Ni chols. Thus, according to Nichols , there was no pro of of concealment . As such , Nichol s asserts that the m oney la

undering sta

tute has b een used to criminalize m ere "money spending." See Shoff, 151 F.3d a t 892.

We have upheld money laundering convictions where there is evidenc e that the money transfers "made it m

ore difficult for the true owner of the money to trac e what happened to it," United States v. Norm an, 143 F.3d 375 (8th Cir. 1998), or involved the routi ng of money. United Stat es v. V anhorn , 296 F.3d 713 , 717 (8th Cir. 2002). In Norman , the defendant bought a vehicle with ille gally o btained m oney. 143 F.3d 3 75. He paid f

orthe car with a chec k drawn on an account of a busine ss he-16-

controlled , and the car was titled in th e nam e of the sa me bus iness. Id. Norm an ma de
no attem pt to conc eal fro m the seller of the ca r his own id entity , or the f act that he owned thebusiness that was to become the owner of the car. Id. We first explained that money laundering only requires that a defenda

nt know that

the transaction is designed in whole or in partto concea l or disguise the nature , the loca

tion, the source, the ownership , or the cont rol of the p roceeds of s pecified u nlawful acti vity. Id. Acco rdi ngl y, the point is n ot whethe r the sell er of the car i s deceive d as to who the defendant was, but rather, by c hanging the proceeds of unlawful activity fro m t he form of money –through theuse of undis closed busin ess accou nts–into theform of an automobile, it ma de it m or e diffic ult for the true owner of the money to trace what had happ ened to th e funds. Id.

We affirm

ed the suff

iciency of the evid ence suppo r ting Norman's money laundering

convictions and noted that the illegal f unds were

deposited into three b ank accounts held in two names, neither of which was the accou nt known to th e vi cti m. Id. In addition , we re lied on the f act that t he subseque nt purchase s we re ma de by checks, and involved

autom obiles and ot

her goods tha

t were n ot mat

ters of pub lic record. Id.

Simil arly, in this case, Nichols's scheme em ployed transactions that hampered fraud vic ti ms ' eff

ort s to dis cov er th eir mo ney's loc ati on a nd u se. S pec ifi call y, al thou gh Nichols de

posited the money

into a single

account, he then divi ded the money into multiple gam

bling accou

nts, and sent cash

to Gom ez, Ni chols, and Baker. Nic hols gave some of the money in the central account to family mem bers an d funneled some to a corp orat ion; he also used som e of the pr oceeds to pu

rchase
v ehicles. The money in

the accou

nts was al so used to pay

prior debt s and pur chas e casino chips fo r gam

bl ing–ma tters not of

public rec ord. None

of these t ransacti ons were kno wn to the vi ctims

.
In Shoff , th e m oney la

undering co unts were

based upon tw o autom obile purchases

. Shoff

, 151 F.3d at 890–91. Shoff rece ived a $30,000 che ck from

his-17-

cousin's wife, payable to Sh off person ally. Id . He de posited theche ck i nto a new lyopened checking a ccount in the name of Shoff Trading L imite d. Fou r days later, he wrote acheck on th at accoun t to purchase a $17,290 money order pay able to a local
car dealer. Id . The bank's records list Shoff as purcha ser of

the money order . He used the money order to purch ase a 1989 Mercedes. Id . Second , after a client inves ted $150,000 with Sho ff by w iri ng t he mon ey, at Shoff 's direc tion, into a

Shoff Trading checking a ccount, Shoff wr

ote a chec k on that ac count to purc hase a $28, 400 cashier's ch eck payable to a local ca r dealer. Id . The cashier's check listed Shoff as the remitter. He used the cashie r's check to purchase a 1 992 Merced es. Id

.
In Shoff we noted t

hat the line

between money spending and money

laundering is often a diff

icult lin e to draw. Id . We d istinguished Norman as a case w here the defendant secretly converted proceeds to personal use, and explained that Shoff's vi cti ms did not care w here he in itially depo sited th eir funds. Id . Th e vi cti ms transferred

the m oney to Shoff per sonally or at his direction, rely ing on his represe ntation

that he w ould invest, not on their ability to supervis e or control

his use of th e proceeds. Id . We h eld that pur chasing tw o cars w as not equiva lent to mone y launderi ng. Id

.
In th is cas e, N ich ol s's vi cti ms expected proper stewardship of their fun ds. He told them the funds would be deposited in a non-i nterest bearing account for a particular future use . The vi ctims were not rely ing on Nicho ls to invest t he funds but to hold th e funds until

an estate closed. A s such, the

money was not tr

ansferred to Nichols in his individual capacity and at his discretion. Thus, we hold that Nichols's transfer of money

fro m t he central account t o different persons a nd gam bling accounts provided suf

ficient pr oof of c oncealment for purposes of the m oney launderi ng statu te.

E. Venue for Money Laundering – Gomez Gomez, individually , contends that the U nit ed S tates Di strict Cou rt for the Western District of Missouri lacked venue over the money

laundering charges filed-18-

against him. According to Gomez, bec ause all th e facts s upportingmoney laundering occurred in Califor

nia, the d istrict c ourt in Misso uri was no t a place of proper venue. For support, G omez

relies e ntirely

on United States v. Cabrales , 524 U.S. 1 (1998).

In Cabrales , the Uni

te d States Supreme Court he ld that Miss ouri was n ot a place of proper

venue for money

laundering offenses which were begun, conducted and completed in Florida even though the sums which def endant deposited were allegedly derived f

rom i llegal nar

cotics ac tiv i ty in Mi ssouri. A s in Cabrales , the actual money

laundering

portion of

Gomez's crim e spree oc curred w holly w ithin the state of Cali forni a. Signif icantly , in Cabrales , the Cour t caref ully prefaced t

he opinion by expl aining that the defen dant was n either al lege d to ha ve transported funds from Missouri to Florida , nor was she charged with participation in the illegal
a cti vity in Misso uri. Cabrales , 524 U. S. at 4. The Supreme Court appr oved of our pronou ncem ent tha t "[m]oney laundering . . . might rank as a 'con tinuing offense,' triable in more

than one pla ce, if t

he launderer acquir

ed the funds in one district a nd transported them into another." Id. at 8. Also, t he Court was careful to explain that Cabrales was not charged with a co nspiracy

that would

link her to the acts perpetrated in Misso uri. Id. at 7.

In this case, Gome z was cha rged with causingmoney

obtained by

fraud to be transported from

Missouri to Californ ia. In a ddition, G omez was char

ged with a conspiracy

linking him to fraudulent acts comm itted in Missouri. Gomez was convicted of interst ate transportation of property stolen by fraud. As such, this case is di st in gu is hab le f

rom Cabrales . We concl ude t hat venue w as proper in Missouri,
a state where m

uch of the f

raud perpetrated by Gomez was initiat ed. See Prosper v. United States , 218 F.3d 883 (8th Cir. 2000) (h old ing that venu e was proper for participa tionin a money-launder

ing conspira cy in

which defendant, who had entered7 We also note th at an amendment to the money laundering statute, 18 U. S.C.

§ 1956(i)(B ), m ade afte r Gom ez was indicted but b efore his trial, p rovides for venue in Missouri. Amendment

to a venuestatute is a procedur al changeapplicabl e to suits filedprior to amendment. See Moore v. Agency

for Intern. Dev. , 994 F.2d 874 (D.C. Cir. 1993); Penrod D rilling Co. v. Johnson, 414 F.2d 1 217 (5th Cir. 1 969). Th us, venue was al so proper under the a mended versio n of the st atute.

8 Nichols attem

pts to distinguish D aubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), a s the contr olling prec edent by

citing to Kumho Tire Co., Ltd. v. Car michael, 526 U.S. 137 (1999). Howeve r, in Kumho, the United States Suprem e Court held that th e Daubert "gatekee ping" obligat

ion applies not only

to "scientific" testimony, but to all expert t estimony. 526 U.S. at 14 7. -19- a guilty plea, admitted to commission of overt acts in the jurisdiction where he was tried). 7

F. Exclusio n of Dr. B urgess's T estimony – Nichols Last ly, Nichols c ontends that the dis trict cour t erred in excluding t

he testim ony of his defense expert, Dr. Stanley Burgess. Nichols so ught

to introduc e the testimony of Dr. Bu rgess, a profess or in reli gious studies , concerning the reli gious belief s held by mem bers of Nichols's church. The district court ruled that Dr. Burgess' s testimony was irrelev ant. W e review the exclus ion of exper t te stimon

y for an abuse of discretio n. United Stat

es v. R ushing , 388 F.3d 1153 (8th Cir. 2004). 8

A district court enjoys broad discretion in its determination of relevancy and reliabili ty of expert te stimony. United S tates v. R obertson , 387 F.3d 702 (8th Cir. 2004). "Expe rt evidence can be both powerfu l and quite m isleading be cause of t

he difficult y in evaluat

ing it. Be cause of t

his risk, t

he jud ge in wei ghing possible prejudice against probative force under Rule 403 of the present rules exercises more controlover

experts than over

lay witnesses." Daubert v. Merrell Dow Pharm., I nc. , 509 U.S. 579, 595 (1993) (quotation omitted).-20-

According to Nichols , "the de fense's purpose for attem pting to introduce Dr. Burgess's testim ony wa s to show the jury that Nic hols was not

simply professin g certain religious beliefs in an attempt to win sym pathy or confuse the jury ." The case, however, was not ab out religio us convictio ns in general or Nic hols's spec ific rel i giou s beliefs; rather, the criti cal issues pertaine d to the elemen ts of fraud and money laundering

. The natur

e and sincerity

of Nichol s's relig ious belief s was not before t he court or necessary

to Nichols's defense. We cannot say that the district court abused its dis cret ion in r efu sin g to all ow Dr . Bur ges s's tes timo ny.

III. Conclusion For the reas ons discusse d above, w e affir m the conviction a

nd se ntences of Nichols an d Gomez.

HEAN EY, C ircuit Judge , concur ring.

I continue to believe th at a defe nd ant's challenge to the factual basis for a sentence enhancem

ent prese rves his Si xth Am endmentsentencin g claim. See United States v. Pira ni , 406 F.3d 543, 555-62 (en banc) (Heaney, J. , dissenting). Moreover, I adhere to the vie w stated by Judge By e in Pirani that defe ndants who d id not properly preserve their Booker

cla ims in the distr

ict court a re nonethe less gener

ally entitled to resente ncing un der a const itution al regime. Pirani , 406 F.3 d at 562- 6 7 (Bye, J., dissenting). Beca us e a ma jority of our cour

t held to the

contrary on both counts, however, I concur.

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