PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v. KENNETH BREWINGTON, De fendant - Appellant. No. 18-1357

____________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15- CR-00073-PAB-1)

____________________ __________________ Submitted on the briefs * : Virginia L. Grady, Federal Public Defe nder, and Josh Lee, Assistant Public Defender, on behalf of the Defendant-Appellant. Brian A. Benczkowski, Assistant Atto rney General, Ma tthew S. Miner. Deputy Assistant Attorney General, Anna G. Kaminska, Acting Assistant Chief, Kyle C. Hankey , Trial Attorney, and J ohn-Alex Romano, Trial Attorney, U.S. Department of Justice, on behalf of the Plaintiff-Appellee.

________________ _________________ Before BACHARACH , KELLY, and CARSON , Circuit Judges.

______________________ _________________ BACHARACH , Circuit Judge.

* Oral argument would not ma terially help us to d ecide this appeal. We have thus decided the appeal based on the appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2); Tenth Cir. R. 34.1(G). FILED United States Court of Appeals Tenth Circuit 

### December 17, 2019 Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ This criminal case stems from Mr . Kenneth Brewington’s efforts to recruit investors. For this recruiti ng, Mr. Brewington told potential investors that he owned or controlled bil lions in assets that didn’t exist. At trial, Mr. Brewington ac knowledged that much of what he had said was untrue. But he argued to the jury that he had been duped. The jury was apparent ly unimpressed and found him guilty on eleven counts of (1) conspiracy to commit ma il and wire fraud, (2) mail fraud, (3) wire fraud, (4) conspiracy to commit money laundering, (5) money laundering, and (6) monetary transactions in property derived from specified unlawful activit y. These convictions led to a prison sentence of 70 months. 1 Mr. Brewington appeal s both the convictions and the sentence. Mr. Brewington appeals the convictions based on the district court’s (1) exclusion of emails that he had se nt and received and (2) restriction of testimony by another pers on duped by the same man who had allegedly duped Mr. Brewington. We reject these challenges to the convictions. Mr. Br ewington never offered some of the emails into evidence, so the court never had an opportunity to consider th eir admissibility. The dist rict court did exclude three other emails. But if the court di d err in these ruli ngs, the errors

1 The court also imposed three years of supervised release and ordered restitution of $563,526.78.3 would have been harmless because (1) the court ultimately allowed Mr. Brewington to testify abou t the emails and (2) the ev idence of his guilt was overwhelming. We al so conclude that the dist rict court didn’t err in restricting testimony of a woman who had been c onned. The court allowed the woman to testify and had the discretion to excl ude the details of how she had been conned . We thus affirm the convictions. Mr. Brewington also appeals his sentence, arguing that the court improperly relied on a current version of the sentencing guidelines rather than the version in effect when the offenses took place. The government concedes that the di strict court erred, and we agree. We thus reverse the sentence and remand for resentencing. I. The district court did not commit reversible error in excluding evidence. Mr. Brewington challenges the exclusion of ema ils and restriction of testimony. We reject these challenges. A. Mr. Brewington failed to off er the Johnsons’ emails into evidence. Mr. Brewington argues that the di strict court should have allowed him to introduce emails from Mr. Shannon Johnson and his wife. Mr. Johnson’s emails transmitted docume nts purporting to confirm a bank account of 500 million euros, and Ms. Johnson emailed a proposed contract for the supposed acc ount. Mr. Brewington contends that these emails show that he (1) didn’t create th e fake documents and (2) relied on the Johnsons.4 For the sake of argument , let’s assume that Mr . Brewington is right. Even if he is, the dist rict court didn’t exclud e these emails—they were never offered into evidence. Mr. Brewington points out that he listed these emails in the final pretrial report. But a party must still offer trial exhibits into evidence, and Mr. Brewington never asked the district court to admit the Johnson emails. So Mr. Brewington never ga ve the district court an opportunity to decide the emails’ admissibility. His appe llate argument is thus waived. See United States v. Yousef , 327 F.3d 56, 129 (2d Cir. 2003) (“ By failing to offer these reports in to evidence at trial, [the appellant] has waived any right to argue be fore us that they should have been admitted.”); United States v. Clements , 73 F.3d 1330, 1336 (5th Cir. 1996) (declining to consider the admissibility of letters because the appellant had not offered them into evidence); United States v. Harvey , 959 F.2d 1371, 1374 (7th Cir. 1992) (“[The appellant] cannot co mplain about the district court’s ‘decision’ to refuse to admit evidence that he never moved to admit, or even attempted to describe.”). Mr. Brewington counters that offering the documents into evidence would have been futile because the district court had “sustained an objection that th e entire ‘e-mail family’ of exhibits was hearsay.” Defendant’s Reply Br. at 2. We disagree. Mr. Brewington’s contention refers to a discussion between the at torneys and the court when the court5 was considering an objection to a di fferent email (D50). The government stated that it was assertin g the “same objection as the last e-mail family.” R., vol. IV, at 1679 . The court then su stained the objectio n to the single document being offered (D50) rather than an entire category (or “family” of emails). Id. (“Sustained as to the e-mail.”). Because hearsay objections are f act-specific, the district court appropriately analyzed the admissibilit y of each exhibit as it was offered. See, e.g. , United States v. Rosario Fuentez , 231 F.3d 700, 708 (10th Cir. 2000) (referring to the “f act specific nature of hearsay objections”). Indeed, just ten pages earlier, the district court had allowed defense counsel to introduce another email th at Mr. Brewington had receive d. R., vol. IV, at 1668. Gi ven this ruling and the fact-s pecific nature of hearsay rulings, we cannot assume that the gov ernment would have objected or that the court would have sustained the obje ction. We thus decline to consider the merits of Mr. Brew ington’s argument on th e admissibility of the Johnsons’ emails. B. If the three other emails had been erroneously excluded, the errors would have been harmless. Mr. Brewington did try to intr oduce three emails involving his receipt of fabricated docu ments and his efforts to ve rify their au thenticity.6 According to Mr. Brewington, these three emails would have shown that he hadn’t realized that the do cuments were fabricated. Two of the documents referenced in the emails showed that Mr. Brewington had control ov er non-existent accounts at an Amsterdam bank, one for 500 million euro s and another for 1 bil lion euros. Though neither account actually existed, Mr. Brewington insists th at (1) he thought that they did and (2) he had been duped. Th e district court excluded the three emails as hearsay, and Mr. Brewin gton challenges these rulings. We may assume, for the sake of argument, that the district court erred in excluding each email. Even if the co urt had erred, however, we would regard the errors as harmless unless they su bstantially influenced the outcome or left us in “grave doubt” about the potential for substantial influence. United States v. Rivera , 900 F.2d 1462, 1469 (10th Cir. 1990). Under this standard, any possible erro r would have been harmless because

 the district court allowed Mr. Br ewington to testify about the content of the emails and

 the evidence of his gu ilt was overwhelming. Mr. Brewington received the first email regarding documentation of an account for 1 billion eu ros. This email consiste d of only th ree words: “See attached docu ments.” Appellant’s Supp. App’x at 1276.7 The second excluded ema il was directed to an a ssociate and asked the worth of a particular bond. Appe llant’s Supp. App’x at 1037.

The third email to Mr. Brewington referred to $5 bi llion in U.S. Treasury bonds. Appellan t’s Supp. App’x at 1087.8 The district court’s ex clusion of these emails did not stymie Mr. Brewington’s effort to show that he had been duped. Even without introducing the three emails , Mr. Brewington conveyed precisely the same information through his testimony:9 1. that he had recei ved a document purporting to transfer 1 billion euros, 2. that he had sent documents abou t this transfer in order to authenticate the assets, and 3. that he had sent a bond to someone else to obtain verification. Though the emails weren’ t admitted into evidence, the context made clear that Mr. Brewington was testifying based on existing emails. Through this testimony, the jury learned that the ema ils existed and heard the substance of the emails. United States v. Gould , 672 F.3d 930, 942 (10th Cir. 1992). In respondin g, the government never (1) suggested that Mr. Brewington had himself fabr icated the documents or (2) denied that he had tried to confirm the doc uments’ authenticity. Given this testimony, de fense counsel was able to argue to the jury that Mr. Brewington had received the documents and had tried to confirm their authenticity: You saw what was coming Ke n Brewington’s way. Boyd Stephens was sending him all diffe rent kinds of documents. . . . [F]rom there he sends on to Br ian Elrod to see if it’s any good, Treasuries that are coming his way.

. . . The cons, the people who were playing these games, the Shannon Johnson and the others, have no doubt they wanted him to believe

. . . They wanted people to believe th is. They put this together so that they would believe it. And then Ken Brewingt on sends it off10 to the people that he is looking to, the expe rts he is looking for answers from, and they conf irm that they are legit. R., vol. IV, at 2026–28 . In light of Mr. Brewingt on’s testimony and related closing arguments, the three emails themselves would ha ve added little to his defense. Nor would the actual em ails have undercut th e government’s proof. The government never sugg ested that Mr. Brewingt on had fabricated the documents himself. The government in stead showed that Mr. Brewington had lied about owning or controlling non-existent assets. Some of these lies related to the fake documents; many didn’t. For example, the government showed obvious shortcomings in Mr. Brewington’s explanations for his ownership or control of over $2 billion in U.S. Treasury bond s and $30 million in cash. T hough he testified that he had expected to get these assets fr om M&K Produce, this explanation was far-fetched. M&K Produce was a defunct company w ith no revenue. And Mr. Brewington admitted that he had never even seen th e company and had reviewed only a few documents. R ., vol. IV, at 1906. 2 Why would Mr. Brewington expect to r eceive $2 billion in U.S. Treasuries and $30 million in cash from an unknow n company that was obv iously defunct?

2 Mr. Brewington was asked: “You really didn’t do anything other than to look at some papers th at were e-mailed to you to verify that M&K was even a real company, didn’t you?” R., vol. IV , at 1906. He answered: “That’s correct.” Id.11 Moreover, Mr. Brewington admitted that he hadn ’t just told others that he expected to get these valuable assets from M&K; he had also told others that he already possessed thes e assets. For instan ce, Mr. Brewington admitted that he had told two potent ial business partners that he already took the $2 billion in Treasuries and $30 million in cash, that they were in a Wachovia bank account, and that he could move these assets at a moment’s notice as soon as his IRS audit was complete . But there was no Wachovia account with these assets, 3 no IRS audit, no $2 billion in Treasuries, and no $30 million in cash. At trial, Mr. Brewington acknowledged that he ha d claimed that he owne d this $30 million at Wachovia even though he “didn’t have an accoun t anywhere and couldn’t have an account at that time.” R., vol. IX, at 1914. And Mr. Brewington’s admitted dece ption didn’t stop with the $2 billion in U.S. Treasury bonds or $30 million in cash. For example, Mr. Brewington told two pote ntial business part ners that he had $9 million in a bank account. Gov’t Ex. 1403A (Mr. Brewington clai ms: “I have 9 million dollars sitting there.”). At trial, he admitted that this was a lie.

3 In 2009, Mr. Brewington’s Wachovia accounts closed with balances totaling less than a dollar. R., vol. IV, at 529–32 ( Mr. Brewington’s checking account closed wi th “roughly negative $6, 000” balance, and the “closing value” in his savi ngs account was one cent.).12 Mr. Brewington also said in record ed calls that he had $350 million at JP Morgan Ch ase and $350 million at Ba nk of America. Gov’t Ex. 1454A. These statements were false, and Mr. Brewington didn’t explain why he had told these falsehoods. Mr. Brewington not only told others that he had nonexistent assets but also exaggerated his wealth in his financial statements. For example, in August 2009, one of his fi nancial statements showed that he controlled assets worth roughly $3.2 billion. Abou t a month later, another financial statement showed that he owned assets worth roughly $7 billion. 4 At trial, Mr. Brewington could not explain wh y or how his assets had doubled in only a month’s time. And, of course, both figures were wildly inaccurate. On paper, Mr. Brewington was a billio naire; in reality, he was virtually broke. After Mr. Brewington admitted that he had lied about his assets, he clutched to a bizarre explanation—that he ha d been hoodwinked by two separate individuals who had (remarkably) both managed to fake documents for nonexisten t accounts at the same Amsterdam bank. One set of fake documents purporte d to give Mr. Br ewington control over an account containi ng 500 million euros (the equivalent of roughly

4 One business partner testified that he had been shown this financial statement. Mr. Brewington denied s howing the financial statement to his business partner.13 700 million U.S. dollars). Mr. Brew ington claimed th at Mr. Shannon Johnson had masterminded the creat ion of these fake documents. After Mr. Johnson disappeared, Mr . Brewington r eceived another unrelated set of fake documents for another account at the same Amsterdam bank. This time, the account had ballooned from 500 million euros to 1 billion euros. Again, no such account ex isted, and the documentary proof of the account was fake. No one suggests that Mr. Johnson had anythi ng to do with the second fake account. Nonetheless, remarkable similarities exist between the fake documents. Both reflect fictitious accounts at the same Amsterdam bank. And the two account numbers bear a remarkable similarity: Out of 20 digits in each account nu mber, 18 are identical.14 Even putting aside these remarkab le coincidences, Mr. Brewington’s explanations are inconsistent. Mr. Brewington now contends that Mr. Johnson had claimed owners hip of the 500 million eu ros. But in a recorded call, Mr. Brewington said that he w ould put the first Am sterdam account in his own name. Mr. Brewington never indicated that he would need to obtain Mr. Johnson’s approval. And Mr. Brewington told on e investor in a recorded phone cal l that it did not matter wh at Shannon Johnson knew because “it’s my [Mr. Br ewington’s] money.” R., vol. IV, at 458; Gov’t Ex. 1455D. In addition to lying a bout his assets, Mr. Brew ington lied about what he would do with the i nvestors’ funds. He told some investors that he15 would use their money to pay IRS fines to unfr eeze the 500 million euros in the Amsterdam bank acc ount. He told others that he would use their funds to start a ne w business. And yet others were told that he would use the money in an “equity pa rticipation” so that he could continue using a credit line. All of these stories were fictitious. None of the investors’ funds were used to pay IRS fees, to start a new company, or to open the purported credit line. 5 Mr. Brewington wired part of the funds to his son and used other incoming funds to help keep an associate’s business afloat. In the face of this ov erwhelming evidence th at he lied to cheat potential investors, Mr. Brewington offered the three emails in to evidence.

5 Mr. Brewington also admitted that he had lied about other things, such as his address, office, and whereabouts. 1. His address: Mr. Brewington listed the Brewington Holdings address as 9710 West Tropicana Avenue Ste. 120 in Las Vegas, but the broker salesperson for the business owning that property had ne ver heard of Mr. Brewington. R., vol IX , at 1262. 2. His office: When Mr. Stozek asked why they didn’t meet at Mr. Brewington’s office, he was told that “the condo was being occupied, being re nted out, and the office building was just not accessible, and this was the quickest, easiest path, to sit in a caf eteria.” R., vol IX, at 404. 3. His whereabouts: “When I said I was in Utah, I wasn’t in Utah. I was meeting with Mr. Hansen, but I wasn’t actually in Utah. I should have just said I am in Vegas. I didn’t. It wasn’t the truth.” R ., vol. IX, at 1873.16 Two would have shown that he had received fake documents from other individuals. But his recei pt of fake documents was uncontested, for the government never suggeste d that Mr. Brewington had fabricated the documents himself. The other email would have shown that Mr. Brewington had asked so meone about the value of one of his bonds. But the government never questi oned the fact that Mr . Brewington had asked someone to valu e this bond. The emails would thus not have undercut the gover nment’s powerful evidence that Mr. Brewingt on had lied to investors about his assets and use of the investors’ funds. So even if the district court had erred in excluding the three emails, the errors would have been harmless. C. The district court acted within its discretion in restricting Ms. Harrison’s testimony. The district court allowed one of Mr. Johnson’s fraud victims, Ms. Harrison, to te stify that

 she had met Mr. Johnson,

 he had appeared to be wealthy,

 they had contemplated a business arrangement, and

 the business arrangement ha d not come to fruition. But the court did not allow Ms. Harrison to delve into the specifics of what Mr. Johnson had done.17 We thus consider whether the distri ct court abused its discretion in restricting Ms. Harrison’s testimony. United States v. Hernandez , 693 F.2d 996, 1000 (10th Cir. 1982). The court ab used its discreti on only if the ruling was “arbitrary, ca pricious, or whimsical, or result[ed] in a manifestly unreason able judgment.” United States v. Jordan , 485 F.3d 1214, 1218 (10th Ci r. 2007) (quoting United States v. Weidner , 437 F.3d 1023, 1042 (10th Cir. 2006)). To determine relevance, the district court had to consider the similarity of Mr. John son’s conduct toward Ms. Harrison and Mr. Brewington. See United States v. Puckett , 692 F.2d 663, 670–71 (10th Cir. 1982) (upholding exclusion of a defendant’s ev idence that ot her people had been defrauded by a codefendant because the other fraud was too dissimilar). The court ultimately view ed the Harrison transaction as too different to support introdu ction of the specifics. Mr. Brewington contends that th e excluded details would have corroborated his own state of mind. But “the state- of-mind inquiry is not a free-for-all in which any evidence that could possibly have influenced a defendant’s mental state is necessarily relevant; if that were the case, ‘a defendant could introduce evidence that would invite the jury to speculate a non-existent defense into existence.’” United States v. Trudeau , 812 F.3d 578, 591 (7th Cir. 2016) (empha sis in origin al) (quoting United States v. Zayyad , 741 F.3d 452, 460 (4 th Cir. 2014)).18 To render the evidence admissible, Mr. Brewington ha d to show that Ms. Harrison’s circumstances were so similar to his circ umstances that Ms. Harrison’s state of mind woul d bear on his state of mind. See United States v. Puckett , 692 F.2d 663, 671 (10t h Cir. 1982) (holding th at “unrelated and dissimilar” conduct by a third party to con someon e else “was properly excluded as irrelevant” to corroborate the defendant’s te stimony that he had been conned by the same person); see also United States v. Nguyen , 526 F.3d 1129, 1135 (8th Cir. 2008) (holding that evidence of a third party’s schemes to dupe other individuals was ir relevant to corroborate testimony that the defendan t had also been duped by this third party). The district court could reasonably conclu de that Mr. Brewington had failed to make this preliminary showing of similarity in Ms. Harrison’s circumstances. See Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, pr oof must be introdu ced sufficient to support a finding that th e fact does exist.”). Mr. Brewington contends that Ms. Harrison’s excluded testimony shows that Mr. Johnson (1) had acces s to employees working for the Amsterdam bank (where the non-existent 500 million euros were held) and (2) intended to convince Mr. Brewi ngton that the doc uments for this account were real. In district court, Mr. Brewington did not alert the court to these arguments. But even if he had, the district court could have19 reasonably questi oned how Mr. Johnson’s in tent or access to bank employees would bear on Mr. Brewington’s state of mind. In his reply brief, Mr. Brewington argues that the de tails would have shown that Ms. Harrison had believed Mr. Johnson’s lie s. Ultimately, however, the district court had the disc retion to view Ms. Harrison’s belief in Mr. Johnson’s lies as irrelevant to Mr. Brewington’s state of mind. Given that discretion, we decline to disturb the district court’s exclusion of the details of Ms. Harrison’s experience with Mr. Johnson. II. The district court erred at sentencing. Though we reject Mr. Brewington’s challenges to the convictions, we vacate the sentence and remand fo r resentencing. Mr . Brewington brought one sentencing cha llenge in his opening brief and another in his reply brief. The first challeng e involved a factual findi ng; the sec ond involved the applicable guidelin es. The government agrees with the second challenge; so do we. The second challenge stems from the Ex Post Fact o Clause. Under the Ex Post Facto Clau se, the district court must apply the guideline version in effect when the offense was committed. See Peugh v. United States , 569 U.S. 530, 533 (2013 ) (“[T]here is an ex post facto violation when a defend ant is sentenced under Guidel ines promulgated after he committed his criminal acts and th e new version pr ovides a higher20 applicable Guidelines se ntencing range th an the version in place at the time of the offense.”). To determine when Mr. Brewington committed hi s offenses, we focus on when they ended. See U.S. Sentencing Guidelines Manual § 1B1.11 cmt. n.2 (2018) (stating that th e controlling date is when the offense ended). We conclude that the offenses had ended in 2011 because the government alleged that Mr. Brewington had particip ated in a conspiracy that ended in 2011. So the 2010 guide lines applied. In 2010, the sentenci ng guidelines author ized a two-level enhancement if the offens e involved at least ten victims. U.S. Sentencing Guidelines Manual § 2B1.1(b)(2)(A)(i) (2010) . In 2015, the U.S. Sentencing Commission amended this pr ovision. As amended, a court could still apply the two-level enhancement fo r an offense involv ing at least ten victims. U.S. Sentenci ng Guidelines Ma nual amend. 792 (Nov. 1, 2015). But a court could also apply the two- level enhancement for offenses that involved fewer than ten victims if any of the victims had experienced “substantial financial hardship.” Id. At sentencing, the district cour t applied the 2015 amendment. In applying this amendment, the cour t (1) found that two victims had experienced substantial financial ha rdship and (2) im posed a two-level enhancement. This enhancement wa s based on a guid eline provision enacted years after Mr . Brewington’s crimes had ended, and the21 government concedes that application of the amendment constituted plain

error. This plain error could have aff ected how the guideline range was calculated. For example, the court f ound that two victim s had experienced substantial financial hardship. This finding could trigger the two-level enhancement under the 2015 gu idelines, but not under the guidelines in effect when the offenses were committ ed. At that time, a court could not apply the two-level enhancement if there were fewer than ten victims regardless of whether they had experienced financial hardship. The government thus conc edes that we must re mand for resentencing, and we agree. On remand, the district court should consider the possibility of a two-level enhancement based on the guideline provisio n in effect at the time of the offenses. 6

* * * We thus affirm the convictions, reverse the sentence , and remand for resentencing.

6 In his opening brief, Mr . Brewington challenges the finding that two victims experienced substantial financia l hardship. Given our decision, this challenge is moot. Substantial financia l hardship is rele vant only under the 2015 amendment to th e guidelines, which didn’t ap ply at the time of the offenses.