### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 1321

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

R ANDALL B. C AUSEY

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 10

‐ CR

‐ 88

— Rudy Lozano

, Judge

.

____________________

A RGUED N OVEMBER 8, 2013

— D ECIDED M ARCH 28, 2014

____________________

Before P OSNER

, R OVNER

, and W ILLIAMS

, Circuit Judges

.

W ILLIAMS

, Circuit Judge

. Randall Causey was part of a

conspiracy that preyed on novice real estate investors during

the housing bubble in 2005–06, defrauding both borrowers

and lenders alike. A five

‐ day trial revealed that Causey and

his co

‐ conspirators would do just about anything to com

‐ plete a sale and make a profit, whether it was making prom

‐

ises they had no intention of keeping or falsifying receipts,

incomes or other information on loan forms. Causey, who2 No. 13

‐ 1321

was the only co

‐ conspirator that did not plead guilty, was

convicted and sentenced for his role in the fraud.

Causey raises five issues—four evidentiary and one sen

‐ tencing—on appeal. First, he argues the court improperly

admitted irrelevant and prejudicial photographs taken of the

houses around the time of trial rather than at the time of the

sale. We reject this argument because the photographs gave

the jurors a sense of the size, location and style of the house,

and the jurors were repeatedly reminded when the pictures

were taken. Second, evidence of a fraudulent sale that took

place outside of the conspiracy was properly admitted be

‐

cause Causey placed his intent to defraud and knowledge of

the fraudulent scheme at issue by claiming he was an inno

‐

cent pawn, and this sale demonstrated his fraudulent

knowledge and intent. Third, a defense witness’s testimony

was properly excluded as undisclosed expert testimony be

‐

cause the witness had no personal knowledge of the transac

‐

tions at issue and was asked instead about industry norms,

which is only permissible if a witness is qualified as an ex

‐

pert. Fourth, Causey argues the district court erred in allow

‐ ing an unqualified co

‐ conspirator to give broad expert testi

‐

mony and allowing her to testify as both a fact and expert

witness without a limiting instruction. Since the witness was

never referred to as an expert in front of the jury, there was

extensive cross examination about her credentials and the

basis for her opinion, and her opinion was not significant to

the government’s case, we reject Causey’s arguments. Finally,

a two

‐ level sentencing enhancement for being an “organizer,

leader, manager, or supervisor of the conspiracy” was

properly assessed because Causey was responsible for re

‐ cruiting the buyers into the conspiracy and exercised control

over them during their involvement, which included submit

‐No. 13

‐ 1321 3

ting fraudulent paperwork during closings, and some buyers

were also uncharged criminally responsible parties.

We affirm the district court on each of these issues.

I. BACKGROUND

Sheila Chandler learned how to falsify documents and

close fraudulent loans as a mortgage broker in Gary, Indiana.

She became familiar with the Gary real estate market, in

‐ cluding a house’s actual value, and, more importantly for her

purposes, what the house would appraise for after a little

cosmetic work. Sensing an opportunity, she devised a

scheme to defraud both lenders and buyers. As part of that

scheme, she approached Gordon Rainey in 2005 and sug

‐ gested he start a construction company to make minimal

changes to the houses and then charge inflated amounts that

would be pocketed at closing. Defendant Randall Causey

was living at Rainey’s house at the time and asked if he

could be involved, and Causey and Rainey subsequently co

‐

founded and jointly owned a construction company called

Netlink. With that, the conspiracy was off and running. By

the time the three were arrested, they had executed the

mortgage scheme twenty

‐ five times between July 2005 and

August 2006 in and around the Gary area.

The scheme worked as follows: First, the group needed

buyers who were real estate novices. Causey used charm

and false promises to recruit five of the seven buyers who

purchased eighteen of the twenty

‐ five Gary properties listed

in the indictment. With a buyer in place, Chandler would fill

out a mortgage application, falsifying income, down pay

‐

ments and any other information to make the buyer a viable

loan candidate. She would then order appraisals, title work,4 No. 13

‐ 1321

and pre

‐ approval from the lender. The conspirators would

use “trainee” appraiser Henry Sterk to appraise most of the

houses at a greatly inflated price. The next step was to close

on the house. Chandler gave false information to the lenders

on the HUD

‐ 1 statements, which itemize all charges im

‐ posed upon a borrower and seller for the transaction. Once

the amounts on the HUD

‐ 1 were paid, the title company told

Chandler how much remained of the loan. Chandler then

made up false construction invoices for that remainder. After

the closing, the conspirators divvied up the money paid for

the false invoices. Chandler received $2,000 cash per house,

while Causey received somewhere between $3,000 and

$5,000.

Causey was directly or indirectly responsible for recruit

‐ ing five of the buyers, but we highlight the experiences of

two purchasers relevant to the appeal, Beatrice Mengich and

Toi Lisa Mark. Beatrice Mengich was brought into the

scheme by her aunt, Lillian Kimutai, who met Causey on a

singles telephone line. After Kimutai bought into Causey’s

sales pitch, but before she realized she had been defrauded,

Kimutai recommended to Mengich that Mengich also invest

in Gary real estate. It was not until Mengich, at twenty

‐ three

years old, was flown up from North Carolina to Northwest

Indiana for the closing that she learned for the first time that

arrangements had been made for her to buy four houses ra

‐

ther than one, as she had previously been told.

Toi Lisa Mark was originally from Gary and had a mutu

‐

al friend with Causey named George Hawkins. Hawkins

suggested Mark invest with Causey. Like with other buyers,

Causey told Mark that if she bought houses, he would fix

them up, Netlink would handle all the property manage

‐No. 13

‐ 1321 5

ment issues, and she could rent out the houses. Causey said

he was looking out for her because of their mutual friend,

and promised her at least $7,000 cash back. Mark eventually

bought two houses in May 2006, sight unseen. At the closing,

Mark pointed with concern to the paperwork showing that

she made a “major down payment,” which she knew she

had not, and Causey responded that he had taken care of it.

Once Mark purchased the home, Causey became non

‐ responsive.

As the scheme with Chandler and Rainey was winding

down, Causey began recruiting buyers for a different

scheme he was running with one of Chandler’s former

coworkers. One of those buyers was Kristen Dudley who

bought a house in November 2006 when she was eighteen

years old, sight unseen. When Dudley reached out to Causey

later, he stopped taking her calls.

Ultimately, the authorities figured out the scheme and a

grand jury returned a nine

‐ count indictment against Causey,

Chandler and Rainey, among others. They were charged

with conspiring to commit wire fraud in violation of 18

U.S.C. § 1349, and eight counts of aiding and abetting the

commission of, and committing the offenses of, wire fraud in

violation of 18 U.S.C. § 1343. All except Causey pled guilty.

At trial, the government introduced twenty

‐ five group

exhibits of pictures of the properties taken between 2009 and

2012. The jury was repeatedly reminded that the photo

‐ graphs represented the houses near the time of trial and not

how they appeared at the time of the conspiracy.

The government called Chandler to testify about her role

in the fraud. She had also been disclosed before trial as a po

‐6 No. 13

‐ 1321

tential expert on real estate closings. Chandler testified about

the market conditions in Gary, at one point saying the Gary

housing market was inflated by 400%. Defense counsel did

not object to this estimate, but cross examined Chandler ex

‐ tensively about her qualifications to give such an opinion

and regarding the facts on which that opinion was based.

The government also called Mark, Mengich and Dudley

to testify about their purchases. Defense counsel objected to

Dudley’s testimony as improper under Federal Rule of Evi

‐

dence 404(b), arguing it was propensity evidence. The dis

‐

trict court allowed the testimony, reasoning that it went to

intent, knowledge, and absence of mistake and that the pro

‐

bative value was not substantially outweighed by the preju

‐

dicial value.

Once the government rested, defense counsel called

Douglas Kvachkoff, the owner of the Indiana Title Network

Company. He began to testify as to the contents of a closing

folder he had with him, but when Kvachkoff admitted that

he “did not personally obtain the funding number” on the

folder and defense counsel began asking about how some

‐

one in the industry would get a funding number, the court

barred the responses as improper expert testimony. Defense

counsel proffered that Kvachkoff would have testified that a

funding number is issued by lender once it has reviewed the

settlement statement ( e.g.

, the HUD

‐ 1) and is a necessary

precondition for the disbursement of the loan.

The jury returned a verdict finding Causey guilty on all

counts. At sentencing, the judge adopted the Presentence In

‐ vestigative Report prepared by the Probation office, and ap

‐ plied a two

‐ level enhancement under United States Sentenc

‐ ing Guidelines (“U.S.S.G.”) § 3B1.1(c) for Causey’s role as anNo. 13

‐ 1321 7

“organizer, leader, manager, or supervisor of the conspira

‐ cy.” Causey objected, arguing that he was only a minor par

‐ ticipant and instead deserved a two

‐ level reduction. The dis

‐

trict court found that the two

‐ level enhancement was proper

because Causey was a major player in the crime and sen

‐

tenced Causey to 108 months’ of imprisonment to be fol

‐

lowed by three years supervised release.

This appeal follows.

II. ANALYSIS

A. Evidentiary Rulings

Causey challenges four evidentiary rulings by the district

court. We review the decision to allow or exclude evidence

for an abuse of discretion. United States v. Garcia

‐ Avila

, 737

F.3d 484, 490 (7th Cir. 2013). “The district court’s evidentiary

rulings are afforded special deference and will be reversed

‘only where no reasonable person could take the view

adopted by the trial court.’” Id. (quoting United States v.

Reese

, 666 F.3d 1007, 1015 (7th Cir. 2012)). “Even when an

abuse of discretion occurs, however, reversal only follows if

admission of the evidence affected the defendant’s substan

‐

tial rights.” Id. (quoting United States v. Richard

, 719 F.3d 746,

758 (7th Cir. 2013)). We ask “whether an average juror would

find the prosecution’s case significantly less persuasive

without the improper evidence.” Id. (quoting United States v.

Miller

, 673 F.3d 688, 700 (7th Cir. 2012)).

1. No Abuse of Discretion in Admitting the

Photographs

Causey argues that the district court improperly admit

‐

ted irrelevant and overly prejudicial photographs of the

homes because they were taken between three and six years8 No. 13

‐ 1321

after the conspiracy ended. “To be relevant, evidence need

not conclusively decide the ultimate issue in the case, nor

make the proposition appear more probable, but it must in

some degree advance the inquiry.” Thompson v. City of Chi.

,

472 F.3d 444, 453 (7th Cir. 2006) (internal citations omitted);

see Fed. R. Evid. 401. While there is a question as to whether

defense counsel preserved proper objections to all the exhib

‐

its—and therefore whether the plain error or abuse of discre

‐

tion test applies—it does not affect our analysis because

these photographs were relevant under either test. See United

States v. Cheek

, 740 F.3d 440, 447 (7th Cir. 2014) (applying

plain error test when no timely objection). Although the pho

‐ tographs were taken after the conspiracy was over, they

were relevant because they presented the jury with the lay

‐

out, size, location and composition of the houses, and also

aided various witnesses in explaining their experiences. That

is enough to advance the inquiry.

Causey’s Rule 403 argument is stronger, but fails because

any potential prejudice was mitigated by the parties’ actions.

Causey argues that the photographs were prejudicial be

‐

cause they showed the houses in various states of disrepair

and therefore would have given the jury a distorted percep

‐

tion of the houses’ worth, which he claims is an important

factor when the government argues the estimates were in

‐

flated. Federal Rule of Evidence 403 permits the court to ex

‐

clude otherwise relevant evidence “if its probative value is

substantially outweighed by a danger of

... unfair prejudice,

confusing the issues, [or] misleading the jury

... .” Fed. R.

Evid. 403. Here, there was little, if any, prejudice, and cer

‐ tainly not enough to substantially outweigh the pictures’

probative value. The government said in its opening state

‐

ment, and the photographer reiterated during direct andNo. 13

‐ 1321 9

cross examination, that the photographs were taken around

the time of the trial; the government introduced a chart,

without objection, detailing which photos were taken and

when; and various witnesses testified to the differences be

‐

tween the houses as depicted in the photographs and the

houses when purchased. Any prejudice or danger of mis

‐ leading the jury was mitigated by these and numerous other

reminders that the photographs depicted the houses around

the time of trial and not near the time of the sale.

We understand from statements the government made at

oral argument that at least one mitigation effort, the chart,

was necessary because jurors were not allowed to take notes

during trial. While the decision whether to allow jurors to

take notes remains in the discretion of the trial court, see SEC

v. Koenig

, 557 F.3d 736, 742 (7th Cir. 2009), we have consist

‐ ently encouraged the practice of allowing jurors to take

notes and have acknowledged as much by incorporating the

practice into the Seventh Circuit Pattern Criminal Jury In

‐

structions. See 7th Cir. Pattern Criminal Jury Instruction No.

3.18 (2012 ed); see also, e.g., United States v. McGee

, 612 F.3d

627, 633–34 (7th Cir. 2010) (stating that taking notes is one

way to avoid jurors’ attention and memories from waning);

Moore v. Knight

, 368 F.3d 936, 941 (7th Cir. 2004) (reversing

denial of writ of habeas corpus and noting that jurors’ faulty

memories could have been influenced, in part, by their ina

‐ bility to take notes at trial). A judge would not try a bench

trial without the ability to take notes, even though the trial

transcript can be generated post

‐ trial. It is difficult to under

‐

stand why jurors should not have the same opportunity to

take notes.10 No. 13

‐ 1321

2. No Abuse of Discretion in Admitting Dudley

Transaction

Next, Causey argues that the district court erred by ad

‐ mitting evidence of the Dudley transaction, a house sale

which occurred after the conspiracy with Chandler and

Rainey had ended. Causey argues that this transaction was

used to show he had a propensity to commit fraud and

therefore should have been excluded under Federal Rule of

Evidence 404(b).

While evidence of another “bad act” is “not admissible to

prove a person’s character in order to show that on a particu

‐

lar occasion the person acted in accordance with the charac

‐

ter,” it is admissible to prove motive, opportunity, prepara

‐

tion, plan, knowledge, identity, absence of mistake, lack of

accident, or intent. Fed. R. Evid. 404. We have previously

used, and the district court applied, a four

‐ part test which

states that Rule 404(b) evidence is admissible if: (1) the evi

‐

dence is directed towards establishing a matter other than

the defendant’s propensity to commit crimes charged; (2) the

other act is similar and close enough in time to be relevant;

(3) the evidence is sufficient to support a jury finding that

the defendant committed the other act; and (4) the probative

value of the evidence is not substantially outweighed by the

danger of unfair prejudice. See, e.g., United States v. Torres

‐

Chavez

,

____ F.3d

___, 2014 U.S. App. LEXIS 4229, at *6 (7th

Cir. 2013).

Causey’s defense at trial was that Chandler and Rainey

were the masterminds of the conspiracy and that he was a

pawn who did not know that he was part of a fraudulent

scheme. The government sought to introduce evidence of the

Dudley transaction to show that Causey spearheaded anoth

‐No. 13

‐ 1321 11

er fraudulent scheme without Chandler and Rainey and that

he knew what he was doing when he entered into the mort

‐

gage operation with Chandler and Rainey. While the line be

‐

tween propensity and intent/knowledge can sometimes be

blurry, the Dudley transaction was directly relevant to

whether Causey intended to defraud the buyers in the

Chandler and Rainey scheme and whether Causey knew of

the scheme’s fraudulent nature. See, e.g., Jannotta v. Subway

Sandwich Shops, Inc.

, 125 F.3d 503, 517 (7th Cir. 1997) (affirm

‐ ing decision to admit evidence of other fraudulent state

‐

ments made outside of the alleged fraud).

Moreover, the Dudley transaction was sufficiently similar

to those in the Chandler and Rainey conspiracy to demon

‐

strate Causey’s knowledge and fraudulent intent. While

Causey highlights ways in which the Dudley transaction was

different—no falsified financial forms or promises to find

tenants or give cash back—“[w]hen evidence is presented to

show intent, ‘[s]imilarity is relevant only insofar as the acts

are sufficiently alike to support an inference of criminal in

‐

tent.’” United States v. Howard

, 692 F.3d 697, 705 (7th Cir.

2012) (quoting United States v. Reese

, 666 F.3d 1007, 1015 (7th

Cir. 2012)). Both schemes involved Causey’s recruitment of

novice female buyers, false promises, purchases without see

‐ ing the houses, and Causey cutting off communication with

the buyers shortly after the closings. Additionally, the Dud

‐ ley recruitment began six months after Causey recruited

Mark, which we have previously found is close enough in

time to permit the introduction of 404(b) evidence. See, e.g.,

United States v. Chapman

, 692 F.3d 822, 827 (7th Cir. 2012)

(finding two years close enough in time to admit Rule 404(b)

evidence); United States v. Kreiser

, 15 F.3d 635, 640 (7th Cir.

1994) (seven years); Howard

, 692 F.3d at 705–06 (over one12 No. 13

‐ 1321

year). Because the characteristics of the schemes were suffi

‐ ciently alike, they support an inference of criminal intent.

Next, Dudley and the seller both testified as to Causey’s

role in the fraudulent transaction, which is sufficient evi

‐

dence to show he committed the act. Howard

, 692 F.3d at 706

(finding witness testimony sufficient).

Finally, an act demonstrating Causey’s intent and

knowledge was especially probative given that the govern

‐

ment needed to prove both to prevail on its causes of action.

United States v. Anderson

, 580 F.3d 639, 646 (7th Cir. 2009)

(noting 18 U.S.C. § 1343 wire fraud requires proof that de

‐

fendant “knowingly participated in a fraudulent scheme

with the specific intent to deceive or cheat the scheme’s vic

‐

tims” and conspiracy requires proof that defendant “knew

of the essential nature and scope of the charged conspiracy

and that he intended to participate in it”). Causey himself

made the Dudley transaction even more probative when he

put his intent at issue by claiming he was an innocent pawn

in Chandler and Rainey’s game. United States v. Miller

, 673

F.3d 688, 697 (7th Cir. 2012) (“[E]vidence tending to prove

intent becomes more probative [] when the defense actually

works to deny intent”); see also United States v. Stokes

, 726

F.3d 880, 896 (7th Cir. 2013). While the probative value was

high, there was minimal prejudice because the testimony

was a brief part of the trial, it did not describe any details

about Causey that had not already been discussed, and the

district court “alleviated any unfair prejudice by giving a

limiting instruction.” United States v. Moore

, 531 F.3d 496, 500

(7th Cir. 2008). The admission of the Dudley transaction was

not an abuse of discretion.No. 13

‐ 1321 13

3. Kvachkoff’s Expert Testimony Was Properly

Barred

Causey argues that the district court erred by barring

Kvachkoff’s testimony as expert opinion testimony that was

not disclosed in Causey’s pretrial Federal Rule of Criminal

Procedure 16 notice. Testimony that is based on “scientific,

technical, or other specialized knowledge” is expert testimo

‐

ny, Fed. R. Evid. 702, a written summary of which must be

disclosed pretrial in a criminal case when certain conditions

are met. Fed. R. Crim. P. 16(b) (defendant must provide ex

‐

pert summaries when government first discloses its sum

‐

maries and requests defendant’s). Causey admits he did not

disclose Kvachkoff’s testimony before trial, but argues he did

not need to because it was not expert testimony.

Causey is correct that Kvachkoff began as an occurrence

witness when he testified as to the contents of a folder sitting

on his lap. But once Kvachoff said he had “no recollection of

this closing” referred to on the folder and defense counsel

began asking about industry practice for procuring closing

numbers, the testimony crossed into expert testimony. See

Fed. R. Evid. 702; United States v. Pansier

, 576 F.3d 726, 737–

38 (7th Cir. 2009) (finding testimony about the characteristics

of forged banking forms to be expert testimony). These ques

‐

tions required testimony based on “specialized knowledge”

of the industry and therefore necessitated expert opinion.

Because Causey admittedly did not file the required Rule 16

disclosure, the district court was within its discretion to ex

‐

clude the expert testimony. See Fed. R. Crim. P. 16(d)(2)(C)

(noting that if a party fails to comply with Rule 16’s disclo

‐

sure requirements, the court may “prohibit that party from

introducing the undisclosed evidence”); United States v. Hof

‐14 No. 13

‐ 1321

feckner

, 530 F.3d 137, 185 (3d Cir. 2008) (“Courts of appeals

have upheld the exclusion of experts [under Fed. R. Crim. P.

16] when defendants fail to serve timely notice of their intent

to call them as witnesses.”).

4. Admission of Chandler’s Expert Testimony

Was Harmless Error

Next Causey argues the district court erred in allowing

Chandler to testify as an expert. He specifically challenges

her statement that the Gary housing market was inflated by

400%, and he contends that the court erred in letting her tes

‐ tify in a dual expert/lay testimony capacity without a limit

‐ ing instruction.

The parties dispute the proper standard of review. Cau

‐

sey claims we should review for abuse of discretion because

counsel objected to the foundation of Chandler’s opinions,

whereas the government claims we should review for plain

error because no objection was raised about Chandler’s qual

‐

ifications as an expert or, specifically, the 400% question and

answer. We need not make this determination because the

argument ultimately fails under either standard since any

error that might have been made in admitting this testimony

was harmless. See Cheek

, 740 F.3d at 450 (analyzing for harm

‐

less error under plain error review); United States v. York

, 572

F.3d 415, 429 (7th Cir. 2009) (analyzing for harmless error

under abuse of discretion review). The test for harmless er

‐

ror is “whether, in the mind of the average juror, the prose

‐

cution’s case would have been ‘significantly less persuasive’

had the improper evidence been excluded.” York

, 572 F.3d at

429 (internal quotations omitted).No. 13

‐ 1321 15

Causey argues that Chandler was not qualified to give

expert testimony and the 400% comment was beyond the

scope of the government’s pretrial Rule 16 disclosure, which

said Chandler would testify about the process for real estate

closings. Even if it was an error to admit Chandler’s testimo

‐

ny and even if such testimony exceeded the scope of the

government’s disclosure, the error was harmless. Chandler’s

expert testimony was of little value to the government’s case.

The government had to prove that the co

‐ conspirators de

‐

frauded purchasers with false promises and defrauded lend

‐

ers with false information. Chandler’s occurrence testimony

went to these facts. However, the extent to which the hous

‐ ing market in Gary was inflated was beside the point; the

400% estimate was only relevant to explain how profitable

the scheme was because the higher the appraisal, the higher

the loan, and the more wiggle room there was to submit

false invoices. The government did not even mention the

400% figure in its closing.

Moreover, the government’s case was so strong without

Chandler’s expert testimony that we cannot find that the

prosecution’s case would have been “significantly less per

‐

suasive” had it been excluded. Id

. The government put on

testimony from Causey’s co

‐ conspirators who described

Causey’s involvement in the scheme, along with witnesses

and purchasers who had been defrauded, and it presented

physical evidence that showed the extent and nature of the

conspiracy.

Additionally, any potential harm by the error was miti

‐ gated by defense counsel’s thorough cross examination of

Chandler regarding her qualifications. Defense counsel

pointed out that Chandler was not an appraiser, had done no16 No. 13

‐ 1321

time span analysis, and had never compared the Gary mar

‐

ket to other areas. This reduced the chance that the jury

would attach undue weight to Chandler’s testimony. Admit

‐ ting Chandler’s expert testimony, and specifically the 400%

comment, was therefore harmless error.

Finally, Causey’s argument that the district court erred in

allowing Chandler to testify in a dual capacity fails. The dis

‐

trict court did not err in its handling of such testimony be

‐

cause even if Chandler was an expert, it is unlikely that any

juror would have been confused by such testimony since the

court took “precautions to ensure the jury [understood] its

function in evaluating this evidence.” Id. at 425. The gov

‐

ernment “did not explicitly present [Chandler] to the jury as

an expert

. Consequently, there was little risk that the jury

might have been confused by [Chandler’s] ‘dual roles’ as

both an expert and lay witness, that [her] status as an expert

might overawe the jury, or that the jury might have mistak

‐ enly believed that [her] expert opinions were based on facts

about the defendant not presented at trial.” Cheek

, 740 F.3d at

450 (emphasis in original). Other precautionary measures

included the government’s foundational question—“[w]hat

information did you need to make that assessment”—and

defense counsel’s thorough cross examination. York

, 572 F.3d

at 425 (finding “government’s establishing the proper foun

‐

dation for the witness’s expert opinions and the district

court’s allowing the defense to rigorously cross

‐ examine the

expert” constituted precautions). While a limiting instruction

is one way to ensure the jury understands how to properly

evaluate the evidence presented, it is not the only way. Here,

such instruction was not necessary because there were ade

‐

quate precautionary measures already in place.No. 13

‐ 1321 17

Even if we assume admitting Chandler’s expert testimo

‐

ny was admitted in error, we need not address Causey’s ar

‐

gument that he was prejudiced by cumulative trial error be

‐

cause “we find that [defendant] did not identify more than

one error, [and so] the cumulative error doctrine does not

apply.” United States v. Moore

, 641 F.3d 812, 830 (7th Cir.

2011). We affirm the district court’s evidentiary rulings.

B. No Error in Applying Two

‐ Level Sentencing En

‐

hancement

Lastly, Causey argues that he did not qualify for the two

‐

level sentencing enhancement under U.S.S.G. § 3B1.1(c) be

‐

cause he was not an “organizer, leader, manager, or supervi

‐

sor” of the conspiracy. We disagree.

We review the district court’s application of the Sentenc

‐ ing Guidelines de novo and its findings of facts for clear er

‐

ror. United States v. Harmon

, 721 F.3d 877, 887 (7th Cir. 2013).

“Factual findings are overturned ‘only if our review of all

the evidence leaves us with the definite and firm conviction

that a mistake has been made.’” Id. (quoting United States v.

Bennett

, 708 F.3d 879, 888 (7th Cir. 2013)). We may affirm the

application of U.S.S.G. § 3B1.1 on any grounds that are sup

‐ ported by the record. United States v. Fox

, 548 F.3d 523, 529

(7th Cir. 2008).

Section 3B1.1(c) of the Sentencing Guidelines allows for a

two

‐ level enhancement “[i]f the defendant was an organizer,

leader, manager, or supervisor in any criminal activity.”

U.S.S.G. § 3B1.1(c). The “defendant must have been the or

‐ ganizer, leader, manager, or supervisor of one or more other

participants.” U.S.S.G. § 3B1.1 cmt. n.2. A “participant” is a

“person who is criminally responsible for the commission of18 No. 13

‐ 1321

the offense, but need not have been convicted.” Id. at cmt.

n.1.

Causey argues the enhancement was improper for three

reasons: (1) he only recruited three of the seven buyers; (2)

the district court improperly considered whether he was

“essential” to the offense; and (3) the enhancement requires

that a defendant exercise control over at least one other par

‐ ticipant in the scheme, and Causey did not. First, the district

court did not err in finding that one of the factors that made

Causey an “organizer, leader, manager, or supervisor” was

that he recruited Mark and Mengich, in addition to the three

other buyers he admitting to recruiting. U.S.S.G. § 3B1.1 cmt.

n. 4 (noting “recruitment of accomplices” and “degree of

participation in planning or organizing the offense” are fac

‐

tors to consider when determining if someone is a leader or

organizer); United States v. Robertson

, 662 F.3d 871, 878 (7th

Cir. 2011) (finding recruitment of charged and uncharged

buyers in fraudulent real estate scheme supported applica

‐

tion of the enhancement). While Hawkins re

‐ introduced

Mark to Causey, Mark made it clear that Causey brought her

into the scheme, told her what the business proposal was,

what role she would play, how she would receive a kickback,

and how Netlink would rehabilitate the house. It was not

clear error to find that Causey recruited Mark into the

scheme. Furthermore, while Lillian introduced Mengich to

the scheme, there are two facts that weigh heavily against

Causey’s argument that he did not recruit Mengich. He in

‐

troduced Lillian to the scheme and therefore indirectly

caused Mengich to become part of the conspiracy. More tell

‐ ingly, Causey believed he was owed money as a result of the

Mengich purchase, thereby taking credit for the sale. This

demonstrates that Causey himself believed that he broughtNo. 13

‐ 1321 19

Mengich to the scheme. It was not plain error to find that

Causey recruited both Mark and Mengich, and therefore to

find him responsible for five of the seven buyers.

Causey next argues that the district court’s finding that

Causey was “essential” to the scheme contravenes our

statement in United States v. Leiskunas that “playing a neces

‐

sary role does not definitively prevent that same role from

being minor.” 656 F.3d 732, 739 (7th Cir. 2011). However, the

district court in Leiskunas did not consider the defendant’s

role in the scheme as a whole. Id. Here, the court did consid

‐

er the context and gave numerous reasons outside of Cau

‐ sey’s “essential” nature that he qualified for the two

‐ level

enhancement, including Causey’s position as co

‐ owner of

Netlink, his recruitment of buyers, and the broken promises

he made to the buyers he recruited. Because it was just one

consideration among many, the district court did not err in

noting that Causey was an “essential” player.

Causey’s final argument is that he could not be an “or

‐ ganizer, leader, manager, or supervisor” because “Chandler

and Rainey were the true organizers and leaders” and Cau

‐

sey did not exercise control over any other criminally re

‐ sponsible party. This argument fails because we have repeat

‐ edly held that a defendant can exercise control over a “crim

‐ inally responsible” party for enhancement purposes even if

that individual was never charged, convicted or indicted for

the “criminally responsible” act. See, e.g., Robertson

, 662 F.3d

at 878 (defendants exerted control over “participants who

were not charged” in fraudulent real estate scheme); United

States v. Knox

, 624 F.3d 865, 874 (7th Cir. 2010) (finding de

‐

fendant exercised control over an individual who was “nev

‐

er criminally charged, [but] admitted that she knowingly20 No. 13

‐ 1321

participated in the scheme”). Mark was such a “criminally

responsible” party. She admitted to fraudulent activities

when she signed a HUD

‐ 1 statement showing she had made

a “major down payment” on the house, which she knew was

not true. That she was also a victim does not prevent her

from being a “criminally responsible” party for sentencing

purposes. United States v. Vivit

, 214 F.3d 908, 923 (7th Cir.

2000) (finding enhancement proper because some victims of

a fraudulent scheme were also uncharged criminally respon

‐

sible parties who submitted fraudulent paperwork). It is also

clear that Causey exercised control over her. He not only

brought Mark into the scheme and convinced her to buy

houses, but she listened when Causey told her not to worry

about the fraudulent information on the forms she was sign

‐ ing because he had taken care of it. Because Causey therefore

had control over Mark and she was a criminally responsible

party, the enhancement was proper.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.