PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DENISE SUE CHRISTY, Defendant - Appellant. No. 17-3122

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 5:15-CR -40091-DDC-1)

________________ _________________ Paige A. Nichols, Assistant Fede ral Public Defender (Melody Bra nnon, Federal Public Defender with her on the brief), T opeka, Kansas, for Defendant - Appellant. Jared S. Maag, Assistant United States Attorney (Stephen R. McA llister, United States Attorney, and James A . Brown, Assistant Unite d States Attorney with him on the brief), Topeka, Kansas, for Plaintiff - Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, O’BRIEN , and MATHESON , Circuit Judges.

________________ _________________ MATHESON , Circuit Judge.

________________ _________________ Denise Sue Christy stole cash fro m the vault of the bank where she worked as a teller. She was charged, convict ed, and sentenced for various federal crimes. She now appeals. FILED United States Court of Appeals Tenth Circuit 

### February 15, 2019
Elisabeth A. Shumaker Clerk of Court2 On May 21, 2014, CNB auditors co nducted a surprise audit of the Burlington, Kansas Central National Bank (“ CNB” or “Bank”) vault. The vaul t was missing $764,000. When they b egan to suspect Ms. Christy, she forged d ocuments to purport that she had sent the missing cash to t he Federal Reserve Bank of Ka nsas City (“FRB”). A grand jury indicted her on one co unt of bank embezzlement, six counts of making false bank entries, six counts of faili ng to report income on her tax es, and 10 counts of money laundering. After a six-day tri al, a jury found Ms. Christy gu ilty of all charges except four money laundering counts. On appeal, Ms. Christy argues that (1) cumulative prosecutoria l misconduct violated her due process rights , (2) the evidence was insuffici ent for her money laundering convictions, and (3) the jury instructions improperl y omitted a “materiality” element for the false-bank-entry charges. 1

1 Ms. Christy also argues the dis trict court plainly erred when it failed to address her “personally in order to perm it her to speak or present any information to mitigate the sentence.” Aplt. Br. at 52 (brack ets omitted) (quoting Fed. R. Crim. P. 32(i)(4)(A)(ii)); see United States v. Bustamante-Conchas , 850 F.3d 1130, 1135- 36 (10th Cir. 2017) (en banc). Because we reverse her mon ey laundering convictions and remand for resentencing, we need not address this issue. The dissent thinks resentencing is unnecessary, id. at 1 n.1, predicting, based on a U.S. Sentencing Guidelines analy sis, that Ms. Christy’s advisor y sentencing range and her sentence would be the same even without her money launderin g convictions. Perhaps that would be so, but we are le ss certain than the dissent, who se analysis omits the district court’s responsibility to “consid er all of the [18 U.S.C.] § 35 53(a) factors to determine” the sentence after “correctly cal culating the applicable Guidel ines range.” Gall v. United States , 552 U.S. 38, 49-50 (2007). The first factor is “the nature and the circumstances of the of fense,” § 3553(a)(1), and the second is “the need for t he sentence imposed to reflect the seriousness of the offense,” § 3553(a)(2)(A). The a bsence of six money laundering convictions may affect the sentencing court’s view of t hose factors. Even if it does not, the evaluation of those3 Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm the embezzlement, false bank ent ry, and failure to report incom e convictions. We reverse the money laundering convictio ns, vacate the sentence, and rema nd for resentencing.
I. BACKGROUND
A. Factual History
1. Burlington CNB’s V ault Management In 2014, Elaine Gifford was t he retail operations supervisor o f Burlington CNB. She supervised bank teller Ms. C hristy and vault teller Raylene Thorne, Ms. Christy’s sister-in-law.

factors lies within “the traditi onal exercise of discretion by a sentencing court.” Koon v. United States , 518 U.S. 81, 98 (1996). The dissent cites no case in whic h we have instructed a distric t court to vacate multiple convictions and then declined to order resentencing. In United States v. Michel , 446 F.3d 1122, 1127- 32 (10th Cir. 20 06), this court affirmed a conviction for possession of a firearm by a felon, vacated two additional gun-related con victions for insufficient evidence, and remanded for resent encing even though the distric t court had given the defendant concurrent sentences o f 240 months of imprisonment fo r each count. Id. at 1136. Similarly, in United States v. Morris , 247 F.3d 1080, 1084-85, 1091 (10th Cir. 2001), we affirmed two convic tions for Hobbs Act robbery and tw o convictions for use of a gun during a crim e of violence, revers ed three other gun-r elated convictions as multiplicitous, and remanded for res entencing even though concu rrent sentences had been imposed for the r obbery and gun offenses. We see no reaso n to depart from this practice. In sum, remand for resentencing adheres to our appellate role in the sentencing process. See Koon , 518 U.S. at 98. And not addre ssing the allocution issue com ports with the maxim that we decide onl y those issues necessary to re solve an appeal. See People for Ethical Treatment of Prop. Ow ners v. U.S. Fish & Wildlife Serv. , 852 F.3d 990, 1008 (10th Cir. 2 017) (“If it is not necessary to decide m ore, it is necessary not to decide more.” (brackets omitted) (quoting PDK Labs. Inc. v. DEA , 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concu rring in part and concurrin g in the judgment))).4 Ms. Gifford, Ms. Christy, and Ms. T horne all had access to the Bank’s vault. Ms. Gifford did not “keep much track of what was in the vault,” ROA , Vol. III at 673, and Ms. Thorne often handed off he r vault duties to Ms. Christy. M s. Gifford relied on Ms. Christy to count the cash. Whe n Ms. Gifford needed to record t he amount of cash in the vault, she simply wrote down the numbers that Ms. Christy gave her. Approximately every other week, CNB Burlington transferred mon ey to the FRB. When the vault had too much cash, 2 the Burlington branch sent c ash, also known as “sold cash,” to the FRB, which held th e cash in an account for the br anch. The FRB sent cash back to the Bank upon request. A company named Garda transport ed the cash to and from the FRB. Burlington CNB tracked its cas h transfers in various ways: (1) The Bank created cash-out tickets that recorded when money came out of the vault, inc luding transfers to the FRB and smaller transfers to teller stations within the Bank. Thes e tickets contained an unalterable “proof strip” recording the date they were printed. (2) The Bank entered the cash- out transactions into an electronic system called “Verte x,” which produced a report that showed the amount of cash in the vault at any given time. (3) When the Bank sent cash to the FRB, it created a debit ticket memorializing the transaction. (4) For each sale to the FRB, t he Bank created two currency deposit tickets that itemized th e denominations it sold to the

2 Shortly before the audit, Ste ve Snook, the senior retail branc h administrator for CNB, was concerned that the Bur lington branch was holding too m uch cash—between $750,000 and $1,000,000—in its vault. ROA, Vol. III at 313-16. He instructed the Bank to “keep [its] reserves at or aro und 500,000 at the most,” exce pt when it needed additional money. Id. at 317.5 FRB. One ticket went to Garda and the other stayed with the Bank. (5) When Garda employe es picked up the cash, they used a handheld machine to print out a receipt that both a Burlington CNB employee and the Garda employee signed. The receipt contained a time/date stamp tha t recorded the precise second the receipt was printed. (6) Lisa Nabus, a senior accou ntant at Junction City CNB, balanced Burlington CNB’s FRB ledger by comparing the Bank’s deposits to a daily s tatement from the FRB.
2. The May 21, 2014 Surprise Audit Leading up to May 21, 2014, Ms . Nabus noticed the following di screpancies between CNB Burlington’s Vertex records and the FRB’s daily sta tements: (1) December 17, 2013—Ms. Christy prepared a cash-out ticket representing that the bra nch had sold $401,000 to the FRB when in fact it ha d sold only $104,000. (2) January 14, 2014—Ms. Chris ty prepared a cash-out ticket representing that the branch had sold $400,000 to the FRB when in fact it had never sold the money. (3) February 25, 2014—Ms. Chr isty prepared a cash-out ticket representing that the bra nch had sold $562,000 to the FRB when in fact it had never sold the money. (4) March 18, 2014—Ms. Christy prepared a cash-out ticket representing that the branch had sold $270,000, $225,000, and $225,000 when in fact it had never sold any of these amounts. (5) April 22, 2014—Ms. Christy p repared a cash-out ticket representing that the branch had sold $401,000 to the FRB when in fact the branch ha d sold only $101,000.6 Although Ms. Christy adjusted th e Vertex record to correct the discrepancies, 3 Ms. Nabus grew concerned about the errors and reported her concerns to Vi cky Farres, a CNB auditor. In response, Ms. Farres conduc ted a surprise audit of Burlingt on CNB on May 21, 2014. According to the Bank’s Ve rtex report, the vault should have contained $883,320 in cash on that day. But the aud it revealed that the vault hel d $119,320—$764,000 short. Ms. Farres reported that Ms. Chr isty was exceedingly nervous a nd behaved unusually during the audit. Whe n Ms. Farres started the audit, Ms. Christy delayed the counting process multiple times. Ms. Farres needed to prompt h er to begin counting. During the counting, Ms. Farres noticed that Ms. Christy did no t replace straps on the stacks of hundred-dollar bills aft er counting them. Ms. Christ y also put the stacks outside Ms. Farres’s sight where she coul d re-count the same stack. At one point, Ms. Christy claimed that $100,000 fell into a crack between the wall and a cabinet. When Ms. Farres and her colleagues examined the crack with a flashlight and a y ardstick, they found only dust. Ms. Farres asked Ms. Christy wha t had happened to the missing cash. Ms. Christy at first paused and then responde d that she had sold it to the FRB. Ms. Farre s then asked for the Garda receipts documentin g the transactions. Ms. Chris ty answered that Garda never provided them to her.

3 Ms. Nabus testified that it t ook Ms. Christy a long time to re solve the problems and that Ms. Christy sometimes d id not properly correct the dis crepancies on her first try. On occasion, Ms. Nabus needed to tell Ms. Christy multiple time s to take remedial action.7 The next day, however, Ms. Chris ty sent Garda receipts to Ms. Gifford for $90,000, $100,000, and $670,000. Ms. Christy stated she had fo und the receipts in a drawer. Only the $90,000 receipt was reflected in the FRB’s re cords. It was also the only original receipt located dur ing the audit and the ensuing investigation. The other two were copies. Separate from the receipt, the $90,000 cash-o ut ticket had a “proof strip” showing the sale was mad e on May 20, 2014, and the $90,0 00 transaction was recorded on the Vertex report. T he Garda receipt for $90,000 b ore a legible bag number, which Garda used to track the pre cise delivery bag that carried the cash. The documentation of the purport ed $100,000 and $670,000 sales to the FRB differed from the $90,000 sale. F irst, in contrast to the $90, 000 original receipt, the Bank never found original receipts for t he $100,000 an d $670,000 tra nsfers. Second, the date stamps for all three receipts mat ched exactly, showing that the same machine printed all three receipts at the exact same second—May 20, 2014, at 13:35: 08. Adam Lewis, the Garda employee who picked up an d delivered the money, testified that printing three receipts with precisely the same date stamp would be “completel y impossible.” ROA, Vol. III at 926. Third, when a tr ansparency of the $90,000 rec eipt was placed over the copy of the $100,000 receipt, the signatures matched exactly. 4 Fourth, the bag numbers on the two copied receipts were illegible, and surveillance foo tage showed Mr. Lewis leaving the branch on May 20, 2014, with only one bag. Finally , although the date stamp on the Garda receipts for the pur ported $100,000 and $670,000 s ales was May 20, 2014,

4 Ms. Christy and Mr. Lewis both signed the Garda pick-up receip t.8 the Bank’s cash-out tickets bore a “proof strip” showing that t he tickets were created on May 21, 2014, the day of the audit. Id. at 592, 835-36.
3. The Government Investigation The FBI and IRS coordi nated the investigation. Two agents from an FBI task force questioned Ms. Christy abo ut the missing m oney. During t he interview, the agents asked Ms. Christy if she would be willing to take a polygraph. Ms. Christy responded that she wanted to think about it. Neither Ms. Christy nor the FBI raised the issue of the polygraph again. Throughout the interview, Ms. Christy denied any wrongdoing. IRS Special Agent Joseph Schmidt examined Ms. Christy’s bank ac counts and those of several of her family m embers. He reviewed Ms. Christ y’s tax returns (filed jointly with her husband, Chris Christy) from 2008 to 2014. Ag ent Schmidt found a significant disparity between the bank accounts and the tax ret urns. The Christys’ reported income was about $30,0 00 to $64,000 per year. Their e xpenditures, which included cash payments on the Ch ristys’ home loans, amounted to $400,000 that was unaccounted for in tax filings. B ased on these calculations, A gent Schmidt concluded the Christys had failed to report in come on their tax returns.
B. Procedural History A grand jury indicted Ms. Chris ty, charging her with one count of bank embezzlement, in viola tion of 18 U.S.C. § 656 (Count 1); six co unts of false bank entries, in violation of 18 U.S.C. § 10 05 (Counts 2-7); six counts of de claring false tax returns, in violation of 26 U.S.C. 7206(1) (C ounts 8-13); a nd ten counts of money laundering, in violation of 18 U.S.C. § 19 56(a)(1)(A)(ii) (Counts 14-23). Ms. Christy did not testify9 during her six-day trial. The j ury convicted her of all counts except four money laundering charges based on loan payments that occurred before 2014. The district court sentenced Ms . Christy to (1) 51 months in pr ison for the embezzlement and false bank ent ries (Counts 1-7), followed by t hree years of supervised release; (2) 36 months for filing false tax returns (Counts 8-1 3), followed by one year of supervised release; and (3) 51 mo nths for money laundering (Cou nts 18-23), followed by three years of supervised releas e. The court ordered Ms. Chris ty’s sentences to run concurrently. It also ordered $857,708 in restitution. Ms. Ch risty timely appealed. We will add factual and procedur al background as it becomes rel evant.
II. DISCUSSION Ms. Christy argues that (A) cumul ative prosecutorial misconduct violated her due process rights, (B) the evidence was insufficient for her money laundering convictions, and (C) a materiality element was improperly omitted from the f alse-bank-entry jury instructions.
A. Prosecutorial Misconduct Ms. Christy asserts that the pro secutor committed 12 acts of pr osecutorial misconduct based on comments made during trial. She groups the comments into three “themes,” alleging that the pro secutor (1) commented on Ms. Chr isty’s exercising her right to trial, (2) depicted witn ess Elaine Gifford as credible and sympathetic, and (3) implied witness Raylene Thorne c olluded with defense counsel. The following discussion describes the pertinen t legal background and standar d of review and analyzes the prosecutor’s comments. Althou gh we find or assume that som e of the comments10 were improper, we conclude that Ms. Christy has not shown they affected her substantive rights. She must do so to show c umulative error on plain error review, and therefore the comments do not provide a ground to reverse.
1. Legal Background The following describes (1) the re levant prosecutorial miscondu ct law, (2) the standards of review for appellate challenges to prosecutor stat ements made at trial, and (3) the cumulative error framework.

a. Prosecutorial misconduct Prosecutorial misconduct can ca use constitutional error in two ways. Underwood v. Royal , 894 F.3d 1154, 1167 (10th Cir. 2018). First, it can prejudic e a specific constitutional right amounting to a denial of the right. Id. 5 Second, “absent infringement of a specific constitutional righ t, a prosecutor’s misconduct m ay in some instances render a . . . trial ‘so fundam entally unfair as to deny [a defendant] due process.’” Id. (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 645 (1974)); see United States v. Anaya , 727 F.3d 1043, 1052- 53 (10th Cir. 20 13) (“Prosecutorial miscond uct violates a defendant’s due process if it inf ects the trial with unfairness and denies the defendant’s right to a fair trial.” (quota tions and alterations omitted)). Ms. Christy argues that the

5 These violations often occur out side of trial, such as during discovery, see Brady v. Maryland , 373 U.S. 83 (1963) (failure to de liver exculpatory material); jury selection, see Batson v. Kentucky , 476 U.S. 79, 88 (1986) (perempt ory strikes based on race); initiation of proceedings, see Blackledge v. Perry , 417 U.S. 21, 28 (197 4) (prosecutorial vindictiveness); and outside of court proceedings, see United States v. Cross , 928 F.2d 1030, 1054 (11th Cir. 1991) (in timidation of witnesses).11 cumulative effect of the prosecu tor’s comments denied her a fai r trial. 6 We therefore address only the second manner i n which prosecutorial misconduc t can cause constitutional error. The test for whether a defendant’s trial was fundamentally unfa ir based on a prosecutor’s comments proceeds in two steps: (1) the court fir st decides whether the prosecutor’s comments were impr oper, and (2) if so, it examines their likely effect on the jury’s verdict. See United States v. Currie , 911 F.3d 1047, 105 5 (10th Cir. 2018); United States v. Fleming , 667 F.3d 1098, 1103 (10th Ci r. 2011). The court thus must we igh any improper comments against the st rength of the evidence against the defendant. See Berger v. United States , 295 U.S. 78, 88-89 (1935) (re versing conviction when prosecutor’s misconduct was “pr onounced and persistent” and the evidence against the defendant was “weak”); Darden v. Wainwright , 477 U.S. 168, 179 (1986) (assessing plainly improper statements in context of entire trial); United States v. Oberle , 136 F.3d 1414, 1422 (10th Cir. 1998) (same). i. Step one—propriety of t he prosecutor’s comments Courts have struggled to determin e when a prosecutor’s statemen ts are improper. See, e.g. , Runnels v. Hess , 653 F.2d 1359, 1362 (10th Cir. 1981) (“The fine line between what is permissible argument in t his area is not always bright. ”). They have found that improper comments at trial incl ude (1) commenting on a defendan t’s failure to take the

6 As described below, Ms. Christy argues the prosecutor improper ly criticized her choice to proceed to trial, but she does not argue that these c omments denied her right to trial.12 stand, see Griffin v. California , 380 U.S. 609, 611-12 (1965); (2 ) referring to matters not in evidence, see United States v. Ainesworth , 716 F.2d 769, 771 (1 0th Cir. 1983); (3) encouraging the jury to allow vi ctim sympathy to influence its decision, see Moore v. Gibson , 195 F.3d 1152, 1172 (10th Ci r. 1999); (4) “vouching” for the credibility of a government witness or giving personal views on the case, see United States v. Swafford , 766 F.2d 426, 428 (10th Cir. 1985 ); (5) distorting the record b y misstating the evidence,
see Le v. Mullin , 311 F.3d 1002, 1020 (10th Cir. 2002); (6) misstating the law, see Currie , 911 F.3d at 1057; (7) making de risive comments about opposing counsel in front of the jury, see United States v. Young , 470 U.S. 1, 9 (1985); a nd (8) appealing to the jury’s passion and prejudice or i mplying a jury has a civic dut y to convict, see Thornburg
v. Mullin , 422 F.3d 1113, 1133-34 (10th Cir. 2005); see also Paul J. Spiegelman,
Prosecutorial Misconduct in Cl osing Argument: The Role of Intent in Appellate Review , 1 J. App. Prac. & Process 115, 134 -36 (1999) (listing examples)

. Any alleged improper comments must be examined in context. Young , 470 U.S. at 11. For example, when a prosecuto r has responded to a defense counsel’s arguments, courts grant more leeway. See United States v. Robinson , 485 U.S. 25, 31 (1988); United States v. Ivory , 532 F.3d 1095, 110 0 (10th Cir. 2008). In United States v. Jackson , the prosecutor suggested the defendant should “man up” and “accept responsibility” for his actions. 736 F.3d 95 3, 957 (10th Cir. 2013). We held that the se statements did not constitute prosecutorial misconduc t because they were made in r esponse to defense counsel’s suggestion that other s might be at fault for a car ac cident that occurred as the defendant was fleeing the scene of a bank robbery he had commit ted. Id.13 Courts may consult codes of pro fessional responsibility in asse ssing a prosecutor’s

statements. Young , 470 U.S. at 7-9 (citing Americ an Bar Association codes of professional conduct); see Malicoat v. Mullin , 426 F.3d 1241, 12 57 (10th Cir. 2005) (same). They also may conside r the prosecutor’s intent. See Knowles v. United States , 224 F.2d 168, 170 (10th Cir. 1955 ) (assessing propriety of comm ents based on their “manifest[] inten[t]”); see also Oregon v. Kennedy , 456 U.S. 667, 675-76 (1982) (examining prosecutor’s intent in double jeopardy context to as sess whether statements “goad[ed]” defendant to move for a mistrial); United States v. Tafoya , 557 F.3d 1121, 1126 (10th Cir. 2009) (same). But courts “should not lightly i nfer that a prosecutor intends an ambiguous remark to h ave its most damaging meaning.” Donnelly , 416 U.S.
at 647. Notwithstanding these guideposts , “[t]he line separating accept able from improper advocacy is not easily drawn.” Young , 470 U.S. at 7. This diffi culty has prompted some courts to assume the comments we re improper and th en decide whe ther they prejudiced the jury’s verdict. See Fleming , 667 F.3d at 1106 (“We need not decide whether the prosecutor’s comment . . . was imp roper, because even if it wer e, [the defendant] has not demonstrated that the statement violated his substantial rights .”). This approach relies on step two to resolve the issu e, which we turn to next.14 ii. Step two—effect on jury’s verdict When a court determine s or assumes the pros ecutor made an impro per comment, it then assesses whether the comment affected the jury’s verdict. See id. 7 The applicable standard of review, which we disc uss below, determines which pa rty bears the burden of showing whether the defendant suffered prejudice. See Anaya , 727 F.3d at 1052-53. Absent prejudice, a prosecutor’s improper statements alone will not require a new trial.
United States v. Sorensen , 801 F.3d 1217, 1242- 43 (10th Cir. 2015). To make the prejudice determinat ion, courts “consider the trial as a whole, including the curative acts of the district court, the extent o f the misconduct, and the role of the misconduct within the case.” United States v. Gabaldon , 91 F.3d 91, 94 (10th Cir. 1996) (quotations omitted); see also United States v. Taylor , 514 F.3d 1092, 1096-97 (10th Cir. 2008) (finding no preju dice when district court “rap idly” issued curative instruction). We presume that j uries follow the district court ’s curative instructions unless there is reason to believe otherwise. United States v. Erickson , 561 F.3d 1150, 1169 (10th Cir. 2009). The prevalence and degree of imp roper statements in a trial ca n affect the prejudice analysis. See Berger , 295 U.S. at 89; Gabaldon , 91 F.3d at 94 (declaring “prosecutorial misconduct may be so egregious as to warrant rev ersal”). But “[t]he

7 At trial, the district court may sua sponte determine that a p rosecutor’s comment was improper and prejudicial, see Anaya , 727 F.3d at 1052, but more often it will be asked to assess prejudice on a motion for a mistrial or a new t rial, see United States v. Gabaldon , 91 F.3d 91, 93 n.1 (10th Cir. 1996).15 ultimate question is whether the j ury was able to fairly judge the evidence in light of the prosecutors’ conduct.” Wilson v. Sirmons , 536 F.3d 1064, 111 7 (10th Cir. 2008) (quotations omitted); see Currie , 911 F.3d at 1160 (affirmi ng conviction in spite of prosecutor’s misstatem ents of law when there was “overwhelming” evidence of defendant’s guilt). 8
b. Standards of review When a defendant seeks appellate relief for improper prosecutor comments made at trial, the standard of review t hat we apply to the foregoing two-step test depends on whether the defendant objected at trial and how the court respo nded. Anaya , 727 F.3d at
1052-53. In Anaya , we identified the standard o f review for four situations: (1) The defendant objects and th e court overrules the objectio n—de novo review. (2) The defendant objects, the d istrict court takes curative a ction, and the defendant objects to the adequacy of the curative action or ask s for a mistrial—abuse of discretion review. (3) The defendant objects, the d istrict court sustains the obj ection, and the defendant fails to object to the adequacy of the curative actio n—plain error review. (4) The defendant does not objec t at trial but raises the issu e on appeal—plain error review.
Id.

8 As with step one in assessing prosecutorial misconduct, courts have struggled with step two. This court, for e xample, once declared itself “ in equipoise as to how the jury must have necessarily taken [the prosecutor’s] statement.” United States v. Rahseparian , 231 F.3d 1267, 1274 (10th Cir. 2000).16 Under de novo review, we “first decide whether the conduct was improper and then, if so, whether the Government has demonstrated that erro r was harmless beyond a reasonable doubt.” Id. at 1052 (quotations omitted) (em phasis added). Under plain er ror review, “reversal is warranted o nly when [1] the prosecutor’s s tatement is plainly improper and (2) the defendant demonstrates that the improp er statement affected his or her substantial rights.” Id. at 1053 (quoting Fleming , 667 F.3d at 1103) (emphasis added). To be plain, an error mus t be “clear” or “obvious,” me aning it is contrary to well-settled law. Taylor , 514 F.3d at 1100.

c. Cumulative error Ms. Christy’s aggregate effect challenge implicates this circu it’s law on the proper approach to cumulative error revi ew. We consider cumulative er ror only if the appellant has shown at least two erro rs that were harmless. United States v. Rivera , 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc). A nything less would leave not hing to cumulate. See id. The question is whether the two o r more harmless errors togethe r constitute prejudicial

error. See id. at 1469-70. As applied to the p rosecutor comment context, a co urt may proceed with a cumulative error a nalysis only when the appellan t has shown at least two comments were improper but were not prejudicial on their own. The court would then determine whether the comment s together were prejudicial. But before a court can make that determination, it must disting uish between alleged errors that were prese rved for appeal and those that we re not. As for at least two preserved errors, we consider whe ther the government can show t hey together were harmless beyond a reasonable doubt. See United States v. Rogers , 556 F.3d 1130, 1141,17 1144 (10th Cir. 2009). If the gover nment cannot make that show ing, we reverse. But if it can, we next combine the prese rved errors and the unpreserve d errors and decide, under plain error review, whether the d efendant can show they togethe r influenced the jury’s verdict. Id. at 1144. If the defendant cannot, we affirm.
* * * * With these principles in mind, w e address the propriety of each of the prosecutor’s comments, grouping them under Ms. Christy’s three “themes” of a lleged misconduct. We then analyze whether Ms. Chr isty has shown whether the comme nts we have determined or assumed to be improper cumulatively “infect[ed] t he trial with unfairness” and denied her the right to a fair trial. Anaya , 727 F.3d at 1052. Alt hough we determine or assume that some o f the prosecutor’s co mments were improper, when judged in light of the entire trial record, we co nclude these comments cumulati vely did not outweigh the overwhelming evidence of Ms. Chr isty’s guilt and did not influe nce the jury’s verdict.
2. Analysis

a. Cumulative error: analytical framework Ms. Christy argues that the cumul ative effect of the prosecutor ’s 12 comments violated her due process right t o a fair trial. She contends t hat each comment was improper, but she does not claim t hat any one comment, standing alone, was enough to reverse her conviction. It follo ws that, even if improper, eac h comment alone would have been non-prejudicial and not reversible error. Rather tha n seek reversal based on any single comment, Ms. Christy a rgues that the comments togeth er created a18 “crescendoing” or “cumulative” effect that infected the trial a s a whole. Aplt. Br. at 17,
20. To enable us to do the cumulativ e error analysis, we must first determine whether any of the alleged wr ongful comments was improper. An d to do t his, we must use the proper standard of review, which we outlined for different circ umstances in Anaya and summarized above. This exercise consumes the majority of our a nalysis below. We address each of the prosecutor’s c omments not only to assess wh ich ones may have been improper but also to aid our late r analysis in which we weigh i mpropriety against the strength of the prosecution’s case. See Darden v. Wainwright, 477 U.S. 168, 181 (1986);
United States v. Darden , 688 F.3d 382, 397 (8th Cir. 2012 ) (balancing “strength of the evidence against the cumulative effect of p rosecutorial miscond uct”). We proceed as follows. First, we examine each of the 12 statem ents under the proper standard of review to dete rmine which ones were improper . Only improper comments qualify for the cumulativ e error analysis. Second, we determine whether the improper comments preserved for appellate review together cause d cumulative harmful error. Third, assuming the preser ved comments were not cumulat ively harmful, we add in the unpreserved improper comme nts to determine whether Ms. C hristy has shown the preserved and unpreser ved wrongful comments influenced the jury ’s verdict. b . Propriety of the prosecutor’s comments For each of Ms. Christy’s three categories of alleged improper comments, we provide a chart that lists each c omment, whether Ms. Christy ob jected to the comment at trial, the court’s response to e ach objection, and the applicab le standard of review.19 i. Comments on Ms. Christy’s exercising her rights Ms. Christy alleges that the pro secutor improperly commented on her decision to exercise her constitutional rights in the following five instan ces:

Government Comments on Ms. Chr isty Exercising her Rights
Statement Objection/ Result Standard of Review Comment 1 Opening: So at the end of this case and the presentation of evidence, we’re going to ask you to do something that she is unwilling to do and that is to make her accountable for her crimina l conduct. She wants to get away with this scot-free . . . . ROA, Vol. III at 248. No Plain error

Comment 2 Closing (Rebuttal): So she was offered an opportunity to make an explanation. She was offere d an opportunity to take a polygraph. She didn’t ava il herself of ever attempting to contact a representative o f the United States after that. ROA, Vol. III at 1089. No Plain error

Comment 3 Closing (Rebuttal): The evidence in its entiret y should lead you to the conclusion that she should be held accountable for conduct which she is unwilling to accept. ROA, Vol. III at 1089. No Plain error

Comment 4 Closing (Rebuttal): De novo20 I enjoy where we have a ca se where someone has confessed to the offense. It’s—it’s an acknowledgment of their w rongdoing. But short of that, when somebody is de nying it, I would prefer a ridiculous story. And that ’s what we’ve heard in argument and in cross-examination of our witnesses. ROA, Vol. III at 1089-90. Yes/ Overruled

Comment 5 Closing (Rebuttal): So I believe when you revi ew all the ev idence, you will find that there is ev idence beyond a reasonable doubt to hold the defendan t accountable for each and every count of the indictme nt, to return a verdict of that, and to make her accept responsibility for that verdict even though she w on’t do it voluntarily. Thank you, folks. ROA, Vol. III at 1090. No Plain error

We review Comments 1, 2, 3 and 5 for plain error to determine w hether they were “plainly improper.” We review Co mment 4 de novo to determine w hether it was improper. 1) Additional legal background The Sixth Amendment provides tha t “the accused shall enjoy the right to a speedy and public trial.” U.S. Const . amend. VI. The Fifth Amendment provides that “[n]o person shall be . . . deprived of life, liberty, or property, w ithout due process of law.” U.S. Const. amend. V. Together the y guarantee the defendant’s right to a fair trial. See Strickland v. Washington , 466 U.S. 668, 684-85 (1984) (“ The Constitution guarantees a fair trial through the Due Proce ss Clauses, but it defines the basic elements of a fair trial largely through the several pr ovisions of the Sixth Amendment.” ). The Fifth Amendment21 “forbids either comment by the prosecution on the accused’s sil ence or instructions by the court that such silence is evidence of guilt.” Griffin , 380 U.S. at 615. We have “distinguished betwee n prosecutorial statements implying guilt or challenging credibility,” which are not imp roper, from “those relating to a n accused’s failure to testify,” which are. Runnels , 653 F.2d at 1362. The prosecu tion is “free to comment on a defendant’s failure to call certa in witnesses or present certai n testimony.” Battenfield v. Gibson , 236 F.3d 1215, 122 5 (10th Cir. 2001). We assess whether a comment references a defendant’s failure to testify by asking “whether the language used was ma nifestly intended or was of su ch character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles , 224 F.2d at 170; see United States v. Rahseparian , 231 F.3d 1267, 1273-74 (10th Cir. 2000) (surve ying case-law). Some courts hav e extended Griffin ’s holding to certain enumerated rights. See, e.g. , Marshall v. Hendricks , 307 F.3d 36, 71 (3d Cir. 2002) (extending Griffin to the right to counsel and th e right to call witnesses). 2) Analysis Ms. Christy argues that these fi ve statements were improper bec ause they criticized her for exercising he r constitutional rights. Her b rief invokes the Fifth Amendment and Griffin ’s prohibition on comment about t he defendant’s silence, and it cites the Sixth Amendment rega rding the defendant’s right to a trial. Aplt. Br. at 21. 9

9 Ms. Christy does not cite any cas es in which this circuit has held that a comment on a defendant’s decision to pro ceed to trial violated the due process right to a fair trial. See Aplt. Br. at 21. She discusses one recent decision from the O klahoma Court of22 Comment 2 about the offer to take a polygraph was not about Ms. Christy’s failure to testify at trial or her exerc ise of the right to trial. It was made in response to the following part of Ms. Christy’s c ounsel’s closing argument: “R emember [Ms. Christy’s] interview? And [the FBI agents] said, oh, we’ll get a polygrap h. Why don’t you take a polygraph? That will sort all o f this out. They didn’t do tha t. They didn’t ever come back and talk to her again. The y didn’t reach out to her attor neys.” ROA, Vol. III at 1077. In suggesting that the age nts’ investigation was incompl ete, Ms. Christy’s counsel invited the prosecution to expl ain the lack of follow up. To “ right the scale,” the prosecutor responded that Ms. Chr isty herself could have invite d a second interview. See Young , 470 U.S. at 12-13. Though que stionably relevant, the prosecu tor’s comment was made in response to defense coun sel’s criticism in closing argu ment of the agents’ investigation and was not “plai nly improper” under plain error review. The prosecutor’s other four sta tements—Comments 1, 3, 4, and 5— did not comment about Ms. Christy’s fail ure to testify. They also did not expressly comment on Ms. Christy’s exercising her right to a trial. These statement s, broadly interpreted, could be understood as an implied comm ent on Ms. Christy’s decision t o go to trial rather than plead guilty, though none of them stated this specifically.

Criminal Appeals that stated, “ The prosecutor’s commentary on A ppellant’s decision to exercise his right to trial, ra ther than plead guilty, is nothi ng short of alarming.” Barnes v. State , 408 P.3d 209, 214 (O kla. 2017). The Government does not cont est that criticizing Ms. Christy’s decision to go to trial would have be en improper, but it argues the prosecutor did not do so here. Aplee. Br. at 25-26.23 We review Comments 1, 3, and 5 to consider whether they were “p lainly improper.” Comment 1, the prosecu tor’s opening statement about Ms. Christy’s unwillingness to be accountable, c ould be read to state the obv ious—that she had not pled guilty. But it also could be taken as criticism of her decisio n to put the government to its burden of provi ng her guilty, which was her right under the Fif th and Sixth Amendments. See generally Sullivan v. Louisiana , 508 U.S. 275, 277-78 (1 993) (explaining Fifth Amendment “requirement of proof b eyond a reasonable doubt” and Sixth Amendment “right to a speedy and public t rial, by an impartial jury”). T he same can be said about Comments 3 and 5, both made in rebuttal closing argument. As n oted above, the defense failed to object to these comment s, and the question under plai n error review is whether they were “plainly improper,” Anaya , 727 F.3d at 1053. Unlike a comment on a defendant’s failure to testify, which sug gests the defendant lacks a truthful defense, see Griffin , 380 U.S. at 614-15, a comme nt that the defendant has chosen to go trial and contes t the charges rather than plea d guilty carries no such connotation. The pros ecutor’s comments were not made, as they were in our Jackson case, in direct response to an argument from defense counsel, b ut they did respond to the defendant having pled not guilty . 736 F.3d at 957. We need no t decide whether these statements were “plainly impr oper” because, as we discuss below , even if they were, Ms. Christy has not shown that they i nfluenced the jury in light of the compelling evidence against her. See Fleming , 667 F.3d at 1104. As for Comment 4, which we revi ew de novo for its propriety, t he prosecutor’s statement that he enjoys when someone has confessed was not rel evant but not improper.24 His statement that he prefers a “ridiculous story” when someone has denied guilt seems to be a fair advocacy comment o n the defendant’s evidence. The comment as a whole, like the other comments, do not expressly criticize Ms. Christy for going to trial, but even if Comment 4 could be read as im plying so, it would not be enou gh, along with other comments in the cumulative error a nalysis below, to show prejud ice. ii. Comments depicting Elaine Gi fford as credible and sympathe tic As noted above, Ms. Gifford was M s. Christy’s supervisor at the Bank. She was terminated after the Bank discov ered Ms. Christy’s embezzlement . Ms. Christy argues that the prosecutor improperly de picted Ms. Gifford as credible and sympathetic in the following five instances:
Government Comments Depicting Ms . Gifford as Cred ible and Sympa thetic
Statement Objection/ Result Standard of Review Comment 6 Opening: And it is now time to become s erious because it’s a very serious matter. It’s serious to the victims of the crime. The main victim is Central National Bank, but there was a lot of collateral damage caused by the defendant, Denise Sue Christy, over there . . . Ela ine Gifford is one of the collateral damage [sic] cause d by the defendant, Denise Sue Christy. ROA, Vol. III at 235, 238. No Plain error

Comment 7 Direct Examination of Ms. Gifford: No Plain error25 Ms. Gifford : Correct. I relied on Denise. I trusted her. And I trusted all my girls down there to do the right thing. You know, you put them in charge of something, you relied on them to do the correct—you know, we’re like family, you know. We were just a group that enjoyed each other and thought we a ll would do wh at was right. AUSA : Found out that wasn’t correct? Ms. Gifford : Correct. AUSA : It’s okay. You—you lost your job over this, didn’t you? Ms. Gifford : I did. And I’m paying for it. ROA, Vol. III at 706-07. Comment 8 Direct Examination of Ms. Gifford: Ms. Gifford : I relied on Denise to balance the vault every day to make sure, you k now, it balanced. Between her and Raylene. You kno w, when—when you—when you work for someone—with s omeone for 15 years, you know, you’re kind of family a nd you trust them and they should, you know— Defense Counsel : Objection, Judge. I’m sorry, it’s nonresponsive. The Court : Yeah, I think it’s—I think we wandered into an area. Why don’t you put a question to the witness. AUSA : So you’re telling us , I think, that you were relying upon her faith and honesty? Ms. Gifford : Yes. AUSA : And did you find out afte r May the 21st of 2014, the date of the surprise examin ation, that she had betrayed your faith— Defense Counsel : Objection. Improper opinion. The Court : Overruled. Defense Counsel : Objection. Leading. The Court : Overruled. Yes/ Overruled De novo26 ROA, Vol. III at 780-81. Comment 9 Closing: AUSA: And finally, I want to sin gle out Elaine Gifford. She may have come across kind of short with you, but she was one of the collateral da mage [sic] I mentioned in opening statement. Thi s defendant, cunning and malevolent as she is, is willi ng to throw anybody under the bus if she can get away with her crime. ROA, Vol. III at 1042. No Plain error

Comment 10 Closing: AUSA: And what she said wa s what I told you in opening statement. That with a ll the rules and regulations and so forth that the bank has in place to try to make sure these things don’t happen, it boils down fundamentally to the honesty of the people ex ecuting those procedures. Elaine Gifford said they wer e like family there. And she was probably the most sin cere witness I’ve ever seen— Defense Counsel : Objection. Vouching. The Court : Sustained. AUSA : She broke down on the stand and she told you the truth. She relied upon the honesty and in tegrity of her employees, and they did not come up to her standards. ROA, Vol. III at 1042-43. Yes/ Sustained No curative

measures taken or requested Plain error

We review Comment 8 de novo and re view Comments 6, 7, 9, and 10 for plain error. iii. Additional legal background Courts frown on attorneys commen ting on the sincerity and truth fulness of a witness. Swafford , 766 F.2d at 428. As we stated in Swafford , “We continue to hold that27 vouching by an attorney as to the veracity of a w itness is impr oper conduct and an error which this court will carefully review.” Id. Although “some emotional influence is inevitable” in victim testimony, Wilson , 536 F.3d at 1120, “[t]h is court does not condone prosecutorial remarks encouraging the jury to allow sympathy to influence its decision,”
Moore , 195 F.3d at1172 (finding comment s eliciting sympathy were imp roper but holding that they did not influence the verdict). iv. Analysis The parties agree that Comment 1 0—the prosecutor’s statement th at Ms. Gifford was “probably the most sincere wi tness the prosecutor had ever seen”—was improper vouching. See Aplee. Br. at 30 (conceding that Comment 10 was improper). We agree, too. Prosecutors may not perso nally vouch for the credibility or truthfulness of a witness. Swafford , 766 F.2d at 428. In this inst ance, the prosecu tor made the v ouching statement in his rebuttal closing argument . The district court sustained the defendant’s objection. It did not give a curative instruc tion, and the defense did not as k for one. The other comments are less conc erning. Not only did the defen se fail to object to Comments 6, 7, and 9, it also did not objec t to Ms. Gifford’s t estimony that she was fired because of Ms. Christy’s embezzl ement. Ms. Gifford’s testimony informed the jury about the Bank’s management str ucture, her supervisory responsi bilities, her deficient supervision of Ms. Christy, and the consequences of Ms. Christy ’s embezzlement. The prosecutor’s comments in opening statement, direct examination, and closing argument were consistent with the prosecu tion’s task of providing a narr ative of what happened. The Supreme Court has recognize d “the offering party’s need for evidentiary richness28 and narrative integrity in presen ting a case,” “not only to sup port conclusions but to sustain the willingness of juror s to draw the inferences, whate ver they may be, necessary to reach an honest verdict.” Old Chief v. United States , 519 U.S. 172, 183, 187 (1997);
see United States v. Silva , 889 F.3d 704, 713 (10th Cir. 2018). As to Comment 8, we agree with t he district court’s overruling of the defense’s objection. The prosecutor’s ques tions about Ms. Gifford’s trus t or faith in Ms. Christy were relevant to the circumstan ces surrounding the embezzlement and were not improper. We must weigh, however, the pro secutor’s plainly improper vouch ing statement— Comment 10—against the weight of t he evidence to determine whet her Ms. Christy has shown that this comme nt, along with the pro secutor’s other comm ent we assume to be improper, prejudiced the jury. As we discuss below, Ms. Christ y has not met her burden.

c. Comments suggesting Raylene Thorne colluded with defense counsel As noted above, Ms. Thorne was Ms. Christy’s sister-in-law and co-worker at the Bank. Ms. Christy argues that t he prosecutor improperly sugges ted that Ms. Thorne colluded with defense counsel in the following two instances: Government Comments Implying Ms. Thorne Colluded with Defense Counsel Statement Objection/ Result Standard of Review Comment 11 Redirect Examination of Ms. Thorne: AUSA : Did you meet with [defense counsel] prior to your testimony today? Yes/ Sustained Plain error29 Ms. Thorne : Who? AUSA : The gentleman here, Mitch? Ms. Thorne : Did I talk to him? AUSA : Yes. Ms. Thorne : Yes, I have talked to him. AUSA : Okay. Ms. Thorne : Yes. AUSA : In preparation for your testimony? Ms. Thorne : He’s gone over the same things that you have gone over. AUSA : Okay. Ms. Thorne : Yes. He asked me w hy I would have signed certain tickets. AUSA : You have to answer my questions, okay? Ms. Thorne : Okay. AUSA : When you met with him, how many occasions was it? Ms. Thorne : Actually to sit down and talk to him, probably two. AUSA : For how long? Ms. Thorne : I would say anywhe re from 30 minutes to maybe an hour. AUSA: Because you seem to be kind of rehearsed, your questions— Defense Counsel: Objection, Judge. The Court : Sustained. It’s argumentative. ROA, Vol. III at 892-93. Comment 12 Closing (Rebuttal): AUSA: [1] We called Raylene [Thorne] to the stand because she told us during the interview what we’d present as far as evidence was con cerned. Raylene Thorne, I remind you, is the siste r -in-law of the defendant. She [1] No Plain Error30 confirmed what Elaine told y ou was the practice in respect to filling out the Vertex repor ts. And that was both she, Elaine, and Raylene relied upon calculator tapes that were presented to her by the defe ndant, Denise Christy. That’s what they relied on. This a udit was supposedly done, Elaine is sitting at a desk. She ’s not even looking into this. And Elaine is simply putting do wn in the audit report what Denise Christy is telling her a re the denominations in that vault. [2] Now, she did have some interesting testimony on cross examination, which we had never heard before, and that was that she counted the vault. Never told us that during the interview. I would have presented that as evidence because that’s my job, to provide any exculpatory information I’m aware of. [3] And it was clear that she had been prepa red by the defense for rapidfire responses. Question. B oom. Question. Boom. Question. Boom. I didn’t know t hat she had met with the defense. But she had. Fo r hours. But, you know, when you have that kind of rapid-fi re questioning and response, you make mistakes kind of like you do when you’re fabricating documents— Defense Counsel : Objection. Impugning the defense. The Court : I didn’t hear the objection. Defense Counsel : Impugning the defense, Judge. The Court : Let me talk to you . Sidebar, please. Defense Counsel : Judge, the argument is that the defense has somehow concocted some kind of defense by coordinating the witnesses a nd doing this—some kind of rapid-fire question and re sponse. That impugns upon defense counsel, that they h ave done something wrong. That’s an improper argument. The Court : Mr. Hathaway. AUSA : That’s not an improper argument if they’re being—being prepared. And I’m just going to go into the next phase of it, which is th at she testified to something that was false and that is that she testified she counted the vault on two occasions whe n her sister-in-law was on vacation. It turns out that Ra ylene was on vacation with her sister-in-law. [2] No

[3] Yes/ Overruled Plain error

De novo31 Defense Counsel : Judge, I’m not objecting to whether or not the prosecutor wants t o present evidence. I’m objecting to the manner in which he did this and to impugning the defense. Is [ sic] improper argument. AUSA : They impugned the government at every turn. The Court: I’m going to overrule the objection. I do think there has been an attack on the investigation. I think this is fair comment. I th ink fabrication—calling it fabricating is a verb that concerns me some. AUSA : Well, I was referring to the documentation that were the tickets, that she fabricated those. The Court : I don’t think that’s—my concern is that’s not what you said. I’m overruli ng the objection. But I do—I do request that you steer clear of fabrication by counsel because I don’t think that is wh at you intend to say and I think it’s close to w hat you’re saying. ROA, Vol. III at 1083-86. We review Comment 11 for plain error. Comment 12 has three pa rts—(1) a reminder that Ms. Thorne was Ms. C hristy’s sister-in-law and of Ms. Thorne’s role in preparing the audit report, (2) a statement that the prosecutor heard for the first time on cross-examination that Ms. Tho rne “counted the vault” and how t he prosecutor would have disclosed that information had he known about it earlier, and (3) a statement about the defense’s preparation of M s. Thorne for her testimony. Def ense counsel objected only to the third part, and his objection was overruled. So we apply plain error review to determine whether the first two pa rts of Comment 12 were plainl y improper statements and de novo review to decide whe ther the third was improper.32 i. Additional legal background “Attacks on defense counsel can at times constitute prosecutori al misconduct.”
Wilson , 536 F.3d at 1119. In a crimina l trial, “[t]he prosecutor is expected to refrain from impugning, directly or through i mplication, the integrity or in stitutional role of defense counsel.” Id. (quoting United States v. Bennett , 75 F.3d 40, 46 (1st Cir. 1996)). On the other hand, “it is not improper fo r a prosecutor to direct the jury’s attention to evidence that tends to enhance or dimin ish a witness’s credibility.” Thornburg v. Mullin , 422 F.3d 1113, 1132 (10th Cir. 2005). ii. Analysis In its redirect examination of M s. Thorne, which included Comm ent 11, the prosecution inquired about her m eeting with defense counsel to go over her testimony. The questioning was mostly unobj ectionable, commonplace impeach ment. Toward the end, however, rather than ask a question, the prosecutor said, “Because you seem to be kind of rehearsed, your ques tions—.” ROA, Vol. III at 893. In asking Ms. Thorne about her meetings with defense counsel, t he prosecutor may instead have inquired whet her they rehearsed her testimony. But the prosecutor chose to express his own opinion that the in-court testimony “s eem[ed] . . . rehearsed.”
Id. The court, correctly in our vi ew, sustained the defense’s obj ection, explaining that the prosecutor’s statement was “argumentative.” Id. Defense counsel did not seek a curative instruction, and the court did not give one. Although the prosecutor’s stateme nt was objectionable, whether it was “plainly improper” in the context here nee d not be determined. Because even if it were, Ms.33 Christy has not shown, as we disc uss below, that the cumulative effect of the prosecutor’s challenged statements i nfluenced the jury verdict in the face o f the incriminating evidence presented against her. Comment 12 in the Government’s rebuttal closing argument was m ore benign. First, the statement properly r ecounted that Ms. Thorne is Ms. Christy’s sister-in-law and Ms. Thorne’s role in prep aring the audit report. See Thornburg , 422 F.3d at 1132. Second, the prosecutor’s comment about Ms. Thorne’s testimony o n cross-examination “that she counted the vault” as so mething she had not previousl y told the government, and that he would have disclosed it if she had, seems to stray from the record. ROA, Vol. III at 1084. The first statement was not plainly improper, and we doubt the second one was either, but even if we assume it was and include it in the cumulative error analysis, we later conclude there was no cumulative error. The prosecutor’s third statement in Comment 12 was that “[Ms. T horne] had been prepared by the defense for rapi d-fire responses” and that “you make mistakes kind of like you do when you’re fabricat ing documents.” ROA, Vol III a t 1084. Defense counsel objected that this was “[i]mpugning the defense.” Id. The court overruled the objection, though it said the wor d “fabricating” “concerns me s ome.” Id. at 1086. The prosecutor said he was referring to the “tickets[] that she fab ricated.” Id. The court told him to “steer clear of fabricati on by counsel because I don’t t hink that is what you intend to say and I think it’s close to what you’re saying.” Id. We agree that the prosecutor came close to the line, but aga in, even if improper, the statem ent was not enough, along34 with the other statements consid ered for their cumulative error , to overcome the evidence supporting Ms. Christy’s convictions.
* * * * To recap our step one review, C omments 2, 6, 7, 9, and the fir st part of Comment 12 were not plainly improper. 10 Comment 8 was not imprope r. Comments 1, 3, 4, and 5 may have impliedly criticized Ms. Christy’s choice to go to tri al; Comment 11 stated rather than asked whether Ms. T horne’s testimony had been rehea rsed; the second part of Comment 12 about Ms. Thorne’s cr oss-examination included off-re cord comment; and the third part of Comment 12 abou t defense counsel’s preparatio n of Ms. Thorne to testify was, as the district court said, at least borderline im proper. As to these comments, we do not need to decide wheth er 1, 3, 5, 11, and the second pa rt of 12 were plainly improper under plain error review o r whether 4 and the third pa rt of 12 were improper under de novo review. We will assu me that they were, but when combined with Comment 10, which was plainly i mproper, they did not, as the en suing analysis shows, influence the jury’s verdict. As we turn to the cumulative error analysis, the following cha rt summarizes where we are after our step one discu ssion. Only the comments with c heck marks in the last three columns qualify for c umulative error review.

10 Comment 2 was dubiously relevant and likely excludable had the re been an objection, but it was not plainly improper.35 Comment Not Improper Not Plainly Improper Assume Improper Assume Plainly Improper Plainly Improper

1 
2  3 
4 
5  6 
7  8  9  10 
11  12[1]  12[2]  12[3] 

3. Cumulative Effect of Improper Comm ents on Ms. Christy’s Substan tial Rights Under our cumulative error analysi s, we first examine the prese rved errors and determine their effect on the jury’s verdict. Rogers , 556 F.3d at 1144. As discussed above, the district court overru led Ms. Christy’s objections to Comments 4, 8, and the third part of 12, and we theref ore have reviewed each of those comments de novo. Anaya , 727 F.3d at 1052. We found that Comment 8 was not improper b ut assumed that Comments 4 and the third part o f 12 were improper. Ms. Christy does not argue that36 these preserved errors affected the verdict. Aplt. Br. at 19-2 0. But even if she had, for the reasons stated below as to all the comments that qualify fo r cumulative error review, the Government could show beyond a reasonable doubt that the tr ial was not “so fundamentally unfair as to deny [her] due process,” Donnelly , 416 U.S. at 645; see Rivera , 900 F.2d at 1470 n.6. Accordingly, we move to the sec ond step of cumulative error ana lysis and consider whether the effect of t he preserved-error comments, to gether “with the unpreserved errors, are sufficien t to overcome the hurdles nece ssary to establish plain
error.” Rogers , 556 F.3d at 1144 (quotations o mitted). As to Comment 10 and the comments we assume were improper o r plainly improper, Ms. Chris ty still must show that they cumulatively influenced the jury’s verdict. See Fleming , 667 F.3d at 1104; Anaya , 727 F.3d at 1053. We conclude that she has not done so. First, and most important, the i nculpatory evidence against Ms . Christy was overwhelming. The Government pro ved that Ms. Chr isty had depos ited more than $400,000 in her personal accoun ts over a six-year period and th at she failed to report the deposits on her tax return s from 2008 through 2014. 11 Ms. Christy argues her deposits “did not add up to anywhere near [the missing] [$764,000].” Ap lt. Br. at 38. But she offers no explanation for the d ramatic difference between her s izeable cash deposits and her reported income.

11 The indictment did not charge Ms. Christy for filing a false 2 014 return, though there was evidence that she fa iled to report income for that ye ar as well.37 The jury also heard testimony fro m Ms. Farres about Ms. Christy ’s nervousness during the audit and her suspici ous conduct in the vault. For example, she caught Ms. Christy trying to recount stack s of hundred-dollar bills and in vestigated Ms. Christy’s bluff that $100,000 h ad fallen into a crack near the vault. Mo reover, the jury heard Ms. Gifford explain that the day af ter the audit, Ms. Christy “foun d” two deposit receipts showing that she had transferre d the missing cash to the FRB. See ROA, Vol. III at 698-703. But the “receipts” (1 ) were copies, (2) bore the exac t same signatures and time stamps as another original recei pt, (3) did not contain a legib le bag number, and (4) corresponded to cash-out tickets bearing unalterable “proof str ips” declaring they were printed on May 21, 2014, the d ay of the audit. In short, the e vidence showed that the receipts had been fabricated—cop ied from an original receipt an d reflecting false deposits. The false deposits wer e just two in a string of frau dulent “sales” that Ms. Christy made (and which Ms. N abus caught and flagged). In addition, both Ms. Gifford’s a nd Ms. Thorne’s testimony esta blished that Ms. Christy was responsible for the d aily operations of the vault. Although Ms. G ifford was the branch manager and Ms. Thor ne was nominally the vault telle r, Ms. Christy conducted routine audits and sent money to the FRB on a biweekl y basis, providing her the opportunity to prepare false bank entries and embezzle the cash. Moreover, to the extent the defense tried to pi n blame on Ms. Thorne and Ms. Gif ford, the jury had a full opportunity to judge their credi bility. In short, the evidence was more than sufficient for38 the jury to convict Ms. Christy of embezzling the Bank’s money, submitting false entries to the bank, and falsely repor ting her income on her tax filing s. 12 Second, the district court instru cted the jurors to disregard t he prosecutor’s comments. It told the jurors t hat (1) it is their duty to foll ow and apply the law as provided to them by the district court (Instruction 1); (2) the y are the judges of the facts (Preliminary Instruc tions); (3) statements and arguments of law yers are not evidence (Preliminary Instructions and In struction 7); (4) the governmen t has the burden of proving the defendant guilty be yond a reasonable doubt (Instruc tion 4); and (5) the defendant had no burden to prove her innocence or produce any e vidence at all (Instruction 8). Absen t evidence to the contrary, the jury is presumed to have followed those instructions. Erickson , 561 F.3d at 1169. Of the 12 comments that Ms. Chr isty challenges, the prosecutor made one of them in his opening statement and ei ght in closing ar gument. The ju ry heard the preliminary instructions immediately before opening statements and heard th e remaining instructions immediately before closing arg uments. Thus, when the prosecuto r made the allegedly inappropriate comments, the cour t’s instructions were fresh in the jurors’ minds. Ms. Christy has given us no reason to doubt that they followed thos e instructions.

12 Please note this analysis applie s to Ms. Christy’s convictions for embezzlement, false bank entries, and false tax reports. It does not apply t o her money laundering convictions. Because we reverse t hose convictions in the next section of this opinion based on insufficiency of the evi dence, we consider the prosecu torial misconduct issue only in relation to the re maining convictions.39 Third, although not dispositive , the jury acquitted Ms. Christ y of four money laundering charges, which undercu ts an argument that the jury c ould not follow instructions or “fairly judge the evidence.” Bland v. Sirmons , 459 F.3d 999, 1024 (10th Cir. 2006). Instead, it sh ows that the jury was paying attenti on, weighed the facts, and found that some of the charges w ere not sufficiently proven. Fourth, the six-day trial pro duced approximately 1,000 pages o f transcribed testimony from 14 witnesses. Alt hough not “isolated,” the pros ecutor’s comments represented a small portion of wha t was presented to the jury. See Donnelly , 416 U.S. at
647. In sum, though we do not condone several of the prosecutor’s c omments, Ms. Christy has not shown they colle ctively affected her substantia l rights. We deny her request to reverse her convictions based on prosecutorial misco nduct.
B. Money Laundering: Sufficiency of the Evidence Ms. Christy challenges the suffici ency of the evidence for her money laundering convictions, specifically on the mens rea element of intent. A fter providing additional procedural and legal background , we review the record and concl ude there was insufficient evidence of intent for a reasonable jury to find M s. Christy guilty of money laundering beyond a reasonable doubt.40 1. Additional Procedural Background The jury found Ms. Christy not guilty of the fou r money launder ing counts based on loan payments the Christys m ade before 2014 (Counts 14-17). The cash payments underlying Ms. Christy’s six mone y laundering convictions (Coun ts 18-23) were made on two loans in the Christys’ names at the Farmers State Bank in A liceville, Kansas. Count 18 charged Ms. Christy wit h money laundering for making a $1,000 payment on March 17, 2014 on Loan 7521, a home loan that origin ated in 2011 and called for a minimum m onthly payment of $600. With one excepti on, a payment of $1,848 that was not charged in the indictment, every one of the Christys’ payments on Loan 7521 in 2013 and 2014 was $1,000. Counts 19 -23 concerned cash payments on Loan 7962, a refinancing agreemen t for the Christys’ home loan. 13 Ms. Christy was convicted based on five cash paym ents on this loan made between March 17, 2014 and May 12, 2014, ranging from $834.49 to $3,200 and averaging appr oximately $2,167. Ms. Christy filed a motion for acq uittal on the money launderin g counts at the close of the Government’s case , arguing there was insufficient evidence to show that her loan payments were mad e with embezzled fund s. She did not argu e that there was insufficient evidence of specific intent. She renewed her moti on at the end of trial. The district court denied the motion, stating, A reasonable jury could infer from the circumstantial evidence presented at trial tha t the cash used to make these loan payments came from fund s that Ms. Christy had embezzled from the vault at C NB and that Ms. Christy

13 It appears the Loan 7962 origina tion documents were never admi tted into evidence.41 conducted the financial transac tions with the intent to file a false income tax return in viol ation of 26 U.S.C. § 7206(1). ROA, Vol. I at 337.
2. Standard of Review In general, we review d e novo whether there was sufficient evid ence to support a defendant’s convictions, United States v. Cota-Meza , 367 F.3d 1218, 1223 (10th Cir. 2004), viewing all the evidence and any reas onable inferences d rawn therefrom in the light most favorable to the government, United States v. Poe , 556 F.3d 1113, 1124 (10th Cir. 2009). We consider all eviden ce, circumstantial and direc t, but we do not weigh that evidence or consider the c redibility of witnesses. United States v. Rufai , 732 F.3d 1175, 1188 (10th Cir. 2013). We will reverse a conviction for i nsufficient evidence only whe n no reasonable jury could find the defendant guilty beyond a reasonable doubt. See Anaya , 727 F.3d at 1050. But we will not uphold a con viction “that was obtained b y nothing more than piling inference upon inferen ce . . . or where the evidence rai ses no more than a mere suspicion of guilt.” Rufai , 732 F.3d at 1188 (quotations omitted). “A ju ry will not be allowed to engage in a degree o f speculation and conjecture tha t renders its finding a guess or mere possibility.” Id. (quotations and brackets omitted). Because Ms. Christy failed to rais e her mens rea argument in he r Rule 29 motion, we review the sufficien cy issue for plain error. Id. at 1189. To establish plain error, [the a ppellant] must demonstrate the district court (1) committed error, (2) the error was plain, an d (3) the plain error affected he r substantial rights. If these factors are met, we may exerci se discretion to correct the42 error if (4) it seriously affects the fairness, integrity, or p ublic reputation of judicial proceedings. United States v. Story , 635 F.3d 1241, 1244 (10th Cir. 2011 ) (citations omitted). As we have noted before, “[O ]ur review for plain error in this context differs little from our de novo review of a properly preserved sufficiency cla im” because “a conviction in the absence of su fficient evidence will almost al ways satisfy all four plainerror requirements.” United States v. Gallegos , 784 F.3d 1356, 135 9 (10th Cir. 2015) (citing Rufai , 732 F.3d at 1189); see United States v. Kaufman , 546 F.3d 1242, 1263 (10th Cir. 2008). Accordingly, “ review under the plain error s tandard in this case and a review of sufficiency of the evi dence usually amount to largely the same exercise.”
United States v. Duran , 133 F.3d 1324, 1335 n.9 (10th Cir. 1998). 14
3. Legal Background

a. The money laundering statute and the elements of the offense Broadly defined, money launderi ng is “[t]he act of transferring illegally obtained money through legitimate people or accounts so that its origina l source cannot be traced.” Regalado Cuellar v. United States , 553 U.S. 550, 558 (2008) (quoting Black’s Law Dictionary 1027 (8th ed. 2004 )). The federal money laundering statute, 18 U.S.C. § 1956, provides: § 1956. Laundering of monetary instruments (a)(1) Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of

14 The Government states that we should review de novo whether th ere was sufficient evidence to support Ms . Christy’s money laundering c onvictions. It does not argue for plain error review. Aplee. Br. at 36.43 unlawful activity, conducts or a ttempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity— (A)(i) with the intent to promote the carry ing on of specified unlawful activity; or (ii) with intent to engage in c onduct constituting a violation of section 7201 or 7206 of the In ternal Revenue Code of 1986 ; or (B) knowing that the transacti on is designed in whole or in part— (i) to conceal or disguise the n ature, the location, the source , the ownership, or the control o f the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State o r Federal law, shall be sentenced to a fine . . . or imprisonment for not more than twenty years, or both. 18 U.S.C. § 1956(a) (emphasis adde d). The charges against Ms. Christy were based on the italicized language in § 1956 (a)(1)(A)(ii), the tax-based m oney laundering provision. 15 At the trial, the district court instructed the jury that to fi nd Ms. Christy guilty of tax-based money laundering under § 1956(a)(1 )(A)(ii), it must be convinced that the go vernment has proved each of the following beyond a reasonable doubt: FIRST: Denise Christy conducte d a financial transaction;

15 Only § 7206 is at issue here. It penalizes any person who “[w ]illfully makes and subscribes any return, statement , or other docum ent, which cont ains or is verified by a written declaration that it is m ade under the penalties of perj ury, and which he does not believe to be true and correct as to every material matter.” 2 6 U.S.C. § 7206(1).44 SECOND: Denise Christy knew th at the property involved in the financial transaction repr esented the proceeds of some form of unlawful activity; THIRD: The financial transac tion involved the proceeds of bank embezzlement as set forth in Count 1; and FOURTH: Denise Christy conducted the financial transaction with the intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986. ROA, Vol. I at 108. 16 On appeal, Ms. Christy does no t contest that the Government proved she paid loans with money that she knew she had embezzle d from the Bank—the first three elements. She conte sts whether the Government prov ed the fourth element, specifically whether she made th e loan payments “with the inten t” to violate the tax laws. In short, she argues the evidence at trial was insufficient to prove intent. We next address the intent required to viola te § 1956(a)(1)(A)(ii). b. Mens rea under the statute The mens rea for 1956(a)(1)(A)(ii ) is purpose or specific inten t. This is clear from the following discussion of the d ifference between general and specific intent, the text of § 1956(a)(1)(A)(ii), case law fro m our circuit, and other circu its’ interpretation of the tax-based money laundering statut e. The Government therefore n eeded to show that Ms.

16 The jury instruction tracked th e statute, which includes both § 7201 and § 7206. The indictment charged Ms. Chris ty only with violations of § 72 06, and the jury was not instructed on the elem ents of § 7201. The Government proceeded on the money laundering charges based on § 7 206 only. In denying Ms. Christ y’s motion for acquittal on the money laundering charges , the district court relied on “ the intent to file a false income tax return in violation of 26 U.S.C. § 7206(1).” Dist. Ct. Doc. 70 at 17.45 Christy made the charged loan payments with the purpose of furt hering the false statements on her 2014 income tax returns. See United States v. Bailey , 444 U.S. 394, 403-04 (1980). 17 i. Mens rea, § 1956(a)(1)(A)(ii ), and general and specific in tent A criminal conviction generally r equires proof not only of a cr iminal act but also a guilty mind, or “mens rea.” Torres v. Lynch , 136 S. Ct. 1619, 1 630-31 (2016); Morissette v. United States , 342 U.S. 246, 250-63 (1952). The Supreme Court has “long rec ognized that determining the mental stat e required for commission of a federal crime requires construction of the statute a nd . . . inference of the intent o f Congress.” Staples v. United
States , 511 U.S. 600, 605 (1994) (q uotations omitted). The criminal act under § 1956( a)(1)(A)(ii) is “to conduct [] a financial transaction which in fact involves the proceeds of specified unlawful activ ity.” The financial transactions in this case were M s. Christy’s loan payments. Th e statute requires proof of two types of mens rea. First , under § 1956(a)(1), the defendan t must “know[] that the property involved in a financial transaction represents the pro ceeds of some form of unlawful activity.” Ms. Christy does not contest that the Gove rnment proved this knowledge element. Second, und er § 1956(a)(1)(A)(ii), the defe ndant must have conducted the financial transac tion “with the intent to engage in conduct constituting a violation of section . . . 7206 o f the Internal Revenue Code.” Ms. Christy contends the prosecution did not prove this intent element.

17 As noted above, although Ms. Chr isty was not charged based on her 2014 tax return, Agent Schmidt testified that the Christys failed to rep ort income on that return.46 The common law has distinguishe d “general intent” and “specifi c intent” crimes. Bailey , 444 U.S. at 403 (1980). A crime ’s mens rea is “specific inte nt” when the prosecution must prove not only that the defendant voluntarily and intentionally committed the prohibited act but also intended to violate the l aw. See Kawashima v.
Holder , 565 U.S. 478, 483 (2012); Cheek v. United States , 498 U.S. 192, 200-01 (1991);
United States v. Blair , 54 F.3d 639, 642 (10t h Cir. 1995) (“A specific intent crime i s one in which an act was committed v oluntarily and purposely with th e specific intent to do something the law forbids.” (q uotations omitted)). General int ent requires only an act “done voluntarily and intentiona lly, and not because of mistake or accident.” Blair , 54 F.3d at 642 (quoting United States v. Hall , 805 F.2d 1410, 142 0 (10th Cir. 1986)). Federal criminal law and the Model Penal Code have gradually mo ved away from this terminology, replacing it w ith a mens rea “hierarchy,” “co mmonly identified, in descending order of culpability , as [1] purpose, [2] knowledge, [3] recklessness, and [4] negligence.” Bailey , 444 U.S. at 404; see United States v. Hernandez-Hernandez , 519 F.3d 1236, 1239 & n.3 (10th Ci r. 2008). As the Supreme Court e xplained, “‘purpose’ corresponds loosely with the comm on-law concept of specific int ent, while ‘knowledge’ corresponds loosely with the c oncept of general intent.” Bailey , 444 U.S. at 405; see Model Penal Code § 2.02 (definin g levels in mens rea hierarchy)

. ii. Text The language of § 1956(a)(1)(A)( ii)—“with intent to engage in c onduct constituting a violation” of the tax laws—is phrased in specifi c intent terms. See Carter v. United States , 530 U.S. 255, 270-71 (2000) (explaining that “intent to steal or purloin”47 signifies specific intent); United States v. Welch , 327 F.3d 1081, 10 95 (10th Ci r. 2003) (interpreting “intent to . . . pro mote” as requiring “a higher level of culpability than mere knowledge”). Although the defendant must “know[] the property involved in a financial transaction” was the product o f “unlawful activity,” § 1956(a)( 1), “intent” in § 1956(a)(1)(A)(ii) requires more—that the defendant had the pa rticular objective of filing a false tax return. That objective goes beyond simply u sing unlawful proceeds to conduct a transaction. The trans action itself must be performe d for the purpose of filing a false tax return, a specific in tent state of mind. The word “w ith” preceding “intent” shows the intent must be present at the time of the transaction and cannot be formed at some other time, such as when th e defendant filed the false ret urn. The words “with intent to enga ge in conduct constituting a viol ation” of § 7206 do not call for proof that the fina ncial transaction was just “don e voluntarily and intentionally.” Blair , 54 F.3d at 642. They require proof that it was done “to do something the law forbids,” id. —violation of the tax laws. This is notable because a specific intent requirement typi cally applies to the law underl ying the charged offense. But the crime here—tax-based m oney laundering under § 1956(a)(1 )(A)(ii)—requires even more to prove the requisite mental state. The prosecution must prove that the criminal act—here the loan repaym ent—was done with the intent t o violate another law—the statute prohibiting a false tax filing. This feature o f § 1956(a)(1)(A)(ii) lends more support that it is a s pecific intent offense. The language surrounding § 1956( a)(1)(A)(ii) provides even furt her support. See Leocal v. Ashcroft , 543 U.S. 1, 9 (2004 ) (“[W]hen interpreting a statute . . . we construe48 language . . . in light of the terms surrounding it.”); Nat’l Credit Union Admin. Bd. v. Nomura Home Equity Loan, Inc. , 764 F.3d 1199, 1209 (10t h Cir. 2014) (examining statute’s “surrounding language ” to aid in determining its mean ing). The § 1956 money laundering statute uses the word “intent” in two provisions tha t are grouped together in the same subsection—§ 1956(a )(1)(A)(i) and (ii). (A)(i) requir es proof that the financial transaction was conducted “with t he intent to promote the carry ing on of specified unlawful activity.” The provisi on at issue here, (A)(ii), requ ires proof of “intent to engage in conduct constituting a violation of section . . . 720 6.” The intent required in (A)(ii) is even more specific than the i ntent in (A)(i) because it itemizes particular s tatutory provisions. Although the case law interpreting (A)(ii) is sparse, cases interpreting (A)(i) hold that it is a specific intent provision. See,

e.g. , United States v. Carcione , 272 F.3d 1297, 1302 (11t h Cir. 2001) (interpreting § 1956(a)(1)(A)(i) as a specific intent crime); United States v. Johnson , 440 F.3d 1286, 1294 (11th Cir. 2006) (same). 18 The parallel language in th e two provisions and their

18 In addition, the Fifth Circuit ha s recognized (A)(i)’s “string ent” and “rigorous” mens rea requirement and has app lied it to other subsections of the money laundering statute. See United States v. Trejo , 610 F.3d 308, 314-15 (5th Cir. 2010) (interpreting § 1956(a)(2)(A) to include the “st ringent specific intent requi rement” for other money laundering offenses). Like our s ister circuits, we see no reas on to interpret the specific intent element of the subsections differently. See Rutledge v. United States , 517 U.S. 292, 299 & n.10 (1996 ) (giving the same mean ing to same words i n different statutes); Vt. Agency of Nat. Res. v. Un ited States ex rel. Stevens , 529 U.S. 765, 786 n.17 (2000) (“[I]t is well established that a court can, and should, interp ret the text of one statute in light of the text of su rrounding statutes.”).49 adjacent pairing in the same subs ection of § 1956 shows that ta x-based money laundering is a specific intent crime. 19
iii. Tenth Circuit case law on money laundering and intent This circuit has not addressed th e tax-based money laundering p rovision in § 1956(a)(1)(A)(ii). But cases i nterpreting § 1956(a)(1)(B)(i) help to show why “intent” in § 1956(a)(1)(A)(ii) should be read to require proof of “spec ific intent” or “purpose.” 20
In United States v. Sanders , this court addressed the sufficiency of the evidence for a money laundering convictio n under § 1956(a)(1)(B)(i), whi ch prohibits transactions “designed . . . to conceal” the na ture, location, ownership, or source of the ill-gotten funds. 929 F.2d 1466, 1472 (10t h Cir. 1991). We rejected the “argument that the money laundering statute should be inter preted to broadly encompass a ll transactions, however ordinary on their face, which inv olve the proceeds of unlawful activity.” Id. We did so because “the purpose of the money laundering statute is to reac h commercial transactions intended (at least in part) to disguise the relationship of the item purchased with the person providing the proceeds and that the proceeds used to mak e the purchase were obtained from illegal activities.” Id. Accordingly, “[w ]e have repeatedly stated that

19 The legislative history also sup ports a “specific intent” mens rea. The Senate Report on the Money Laundering Crimes Act of 1986 explained tha t tax-based money laundering “requires that the t ransaction be conducted with the intent to facilitate tax evasion.” S. Rep. 99-433 at 11 (1986) (emphasis added).

20 Rather than conflate tax-based and concealment-based money la undering cases, as the dissent alleges, Dissent O p. at 2, we note the absence o f the former in Tenth Circuit case law and draw lessons from the latter.50 § 1956 is not a ‘money spending statute.’” United States v. Caldwell , 560 F.3d 1214, 1222 (10th Cir. 2009) (quoting United States v. Garcia-Emanuel , 14 F.3d 1469, 1474 (10th Cir. 1994)). Other circuits have agreed, in reliance on our decisions. 21
In Caldwell, we also overturned the defendan t’s money laundering conviction under § 1956(a)(1)(B)(i) fo r insufficient evidence. Id. at 1223. There, the defendant distributed the proceeds of he r wire-fraud scheme by writing ch ecks to herself and her husband. Id. at 1221-22. To prove money laun dering, we held that the gover nment was required to produce evidence o f intent to conceal. Using ill-g otten gains for routine financial transactions does not suffice. Id. at 1223; see Sanders , 929 F.2d at 1472-73 (overturning money-laundering con viction for insufficient evide nce when defendant used ill-gotten gains to openly purch ase cars without using a third- party intermediary). On another occasion, in the context of § 1956(a)(1)(B)(i), we e xplained: Whenever a drug dealer uses his profits to acquire any asset—whether a house, a car, a horse, or a television—a jury could reasonably suspect that on some level he is motivated by a desire to convert his cash into a more legitimate form. The requirement that the t ransaction be “designed” to

21 See, e.g. , United States v. Corchado–Peralta , 318 F.3d 255, 259 (1st Cir. 2003) (“[N]othing about th e purchases, or their manner, points toward concealment or disguise beyond the fact that virtually all expenditures transform cash into something else.”); United States v. McGahee , 257 F.3d 520, 527 (6th Cir. 2001) (“Paying for personal goods, alone, is not sufficient to establish that funds were us ed to promote an illegal activity.”); United States v. Majors , 196 F.3d 1206, 1213 (11th Cir. 1999) (“subscrib[ing] to” our reasoning in Garcia-Emanuel ); United States v. Stephenson , 183 F.3d 110, 120-21 (2d Cir. 1999) (“[A ]bsent proof of intent to conceal, an ordinary purchase made with ill-gotten gains does not v iolate the money laundering sta tute.”); United States v. Herron , 97 F.3d 234, 237 (8th Cir. 1 996) (endorsing our reasoning in Sanders ); United States v. Dobbs , 63 F.3d 391, 398 (5th Cir. 1 995) (adopting our reasoning in GarciaEmanuel ).51 conceal, however, requires more th an a trivial motivation to conceal. Garcia-Emanuel , 14 F.3d at 1474. Notably, the defendant in Garcia-Emanuel was also convicted of five counts of tax evasion but was not charged wit h tax-based money laundering under § 1 956(a)(1)(A)(ii). Id. at 1471, 1472. The need to prove purposeful int ent to establish tax-based mone y laundering dovetails with the Tenth Circuit’ s well-established principle t hat “money laundering” is not “money spending.” See Caldwell , 560 F.3d at 1221. We do not suggest the use of tainted proceeds to pay for goods , services, or loan payments c an never violate § 1956(a)(1)(A)(ii), but more is required than proof of the pay ment. The prosecution must show that a purpose of the expenditures was to file a fals e tax return. Proof of unlawful purpose converts money spending to money laundering. iv. Out-of-circuit case law inte rpreting 18 U.S.C. § 1956(a)(1 )(A)(ii) The First, Fifth, and Eleventh C ircuits have upheld convictions under § 1956(a)(1)(A)(ii) when the defe ndants conducted their “financ ial transactions” with the purpose or specific intent o f furthering their tax fraud. See United States v. Zanghi , 189 F.3d 71, 81 (1st Cir. 1999); United States v. Crader , No. 00-10337, 2001 WL 872711, at *1, *5 (5th Cir. July 2, 2001) (unpublished); United States v. Suba , 132 F.3d 662, 675 (11th Cir. 1988).
In Zanghi , the defendant engage d in securities fraud th rough an “S” Corp oration to generate income. 189 F.3d at 75- 76. He then transferred the p roceeds of the fraud with checks from the “S” Corporation to himself, noting the money wa s for “loan52 repayments.” Id. at 76-77. 22 This characterization was false because he had not personally loaned money to the corporation. Id. Characterizing the [checks] as loan repayments allowed Zanghi t o argue to [his company’s] accountan t that [the funds used for th e checks] were originally deposite d in [the company’s] account as the proceeds of loans, not as the pr oceeds of the illegal sale of p referred shares in [the company] (whi ch they in fact were).”
Id. at 81. By mischaracterizing the illegally obtained funds as l oan repayments to himself rather than accurately labeling them as fraud-related profits, he concealed the income, and its source, on his tax forms. Id. The First Circuit affirmed Mr. Z anghi’s money laundering convic tions. Id. It stated the elements of tax-evasi on-based money laundering: the defendant must have (1) engaged in a financial transa ction, (2) know ing it involved the proceeds of criminal activity, and (3) with the intent o f engaging in conduct consti tuting tax fraud. See id. at 77-78. Interpreting the “intent” element, the district cour t had instructed the jury that it needed to find that M r. Zanghi engaged in the financial transac tions for the sole purpose of evading taxes. Id. at 77. On appeal, Mr. Zanghi argu ed that this legal interpret ation was the law of the case and that the evidence was insufficient to satisfy the “sole purpose” standard. Id. at 79. The First Circuit disagreed with this argument, correcting the district court’s legal conclusion and explaining that “ exclusive intent to evade taxes is not required.” Id. at 78

22 In Zanghi , the court “note[d] that § 19 56 is relatively new and has been infrequently applied. There is little precedent elucidating it s application.” Zanghi , 189 F.3d at 78 n.5. Nearly a decad e later, we can still state that § 1956(a)(1)(A)(ii) “has been infrequently applied.” Id.53 (emphasis added). It further exp lained that the jury could inf er intent to engage in conduct constituting a violation of 26 U.S.C. § 7201—the specif ic intent element of § 1956(a)(1)(A)(ii)—based on “cons istent patterns of understate ment coupled with conduct tending to conceal.” Id. at 80. In other words, a defen dant need not conduct the financial transaction with the sole purpose of evading taxes, but tax evasion must be a
purpose of the financial transaction, a holding consistent with the un derstanding that taxbased money laundering is a specific-intent crime. Id.
In Crader , the defendants ran a non-prof it organization funded by federa l grants. 2001 WL 872711, at *1. It provide d services to persons afflict ed with AIDS and HIV.
Id. The indictment charged defend ants with money laundering in co nnection with their scheme to overcharge clients and develop a “cash hoard” that th ey used to benefit themselves and to pay salaries and expenses of their favored cl ients. Id. The defendants then used the organization to d istribute its ill-gotten gains t o help themselves and their preferred employees evade taxes. Id. Specifically, they (1) issu ed checks in a thirdparty’s name, (2) characterized checks as rent or reimbursement s rather than income, (3) “failed to issue 1099’s or W-2’s to the ultimate beneficiaries of the checks,” and (4) “directed the preparation of For ms 1099 and W-2 which reported taxable income under the names and tax identification numbers of the third party rec ipients rather than the actual recipients of the funds.” Id. at *4. The defendants’ “ financial transactions” therefore directly affected the ir tax liability or the tax liab ility of their employees and the Fifth Circuit affirmed their tax -based money laundering convict ions. Id.54 In Suba, the Eleventh Circuit considered a 133-count indictment that in cluded multiple types of money launderi ng. 132 F.3d at 665-67. It on ly briefly discussed the specific intent element of §1956 (a)(1)(A)(ii). But the court a ffirmed the defendants’ taxbased money laundering convicti ons when they deposited unlawful Medicare overcharges into Mana ged Risk accounts, dis tributed the account s’ funds to themselves as shareholders, and separately “ forged the trustee’s signature and endorsements and invested the proceeds in securitie s and real estate” to facilit ate the scheme. Id. at 675. These facts are consistent with a purpose requirement for tax-b ased money laundering because shifting funds and usin g unwitting third parties concea led the nature of the defendants’ transactions and enab led the filing of false tax re turns. Id. In each of these cases, the def endants used corporate entities to mischaracterize or conceal their financial trans actions using ill-gotten gains. T he transactions furthered the defendants’ tax fraud by hiding the true source of the funds. In other words, the financial transactions had the purpose o f furthering or facilitating the underlying tax crime.
* * * * In summary, based on the law defi ning specific and general int ent, the text of § 1956(a)(1)(A)(ii), the Tenth C ircuit cases establishing that money laundering is not money spending, and the out-of-c ircuit decisions requiring purp ose or specific intent to violate § 1956(a)(1)(A)(ii), the Government needed to prove tha t Ms. Christy made her loan payments with the specific intent to violate the tax laws.55 4. Analysis The Government failed to produce sufficient evidence to establi sh that Ms. Christy made her loan payments with the purpose of enabling her to file false tax returns. The Government “does not contest that § 1956 is generally not a ‘mo ney spending statute.’” Aplee. Br. at 41 (quoting Caldwell , 560 F.3d at 1222). It nonetheless argues that two pieces of evidence convert Ms. Chr isty’s loan payments from mon ey spending into money laundering. First, the Gov ernment contends that Ms. Chri sty’s “small-deposit transactions were designed precis ely to disguise her six-figure embezzlement from
CNB.” Id. at 42. Second, it asserts that M s. Christy’s failure to report income when she filed her tax returns also estab lished her intent to engage in tax fraud when she made her loan payments. Neither a rgument is convincing.

a. Loan payments not evidence of specific intent The Government’s first argumen t fails because the evidence doe s not show that Ms. Christy’s loan payments were made to enable her to file fal se tax returns. Zanghi explained that conceal ing the nature of the transaction may suf fice to establish contemporaneous “intent to eng age in conduct constituting [will ful tax evasion, i.e.,] a violation of section 7201.” 189 F.3d at 79 (quoting 18 U.S.C. § 1956(a)(1)(A)(ii)) (alteration in original). 23 In that case, the government’ s evidence showed that the

23 Zanghi recognized that evid ence of concealment can be used to prove i ntent under § 1956(a)(1)(A)(ii) as we ll as § 1956(a)(1)(B)(i). At le ast one other court has agreed and applied “the same [m ens rea for tax-based money laun dering] as for concealment money laundering,” re quiring the government to “pro ve that the purpose of56 defendant hid fraud-related inco me by labeling it as loan repay ments. Id. at 81. Only by concealing the source of his mone y could he claim in his tax fi lings that he had no taxable income. Id. Similarly, in Crader , “[t]he defendants aided the ultimate beneficiaries of the third-party checks in evading in come taxes by issuing the check s in a third party’s name, rather than in the name of the actual recipient, and by charact erizing the payments as rent or reimbursements, rather than as salary or other income.” 200 1 WL 872711 at *4. In both cases, a purpose of the financial transactions u nderlying the money laundering charges was to mischaracterize o r conceal the transaction in a way that altered the applicable tax-reporting requirements. No comparable concealment or purpose appears in this case. 24 Ms. Christy’s $1,000 payment on Loan 7521 (Count 18) was the exact same amoun t as 20 of the 21 payments she made in 2013 and 2 014. As for Loan 7962, the Gove rnment did not

the transaction, and not merely the effect, was to violate 26 U .S.C. § 7206.” United States v. Shellef , 732 F. Supp. 2d 42, 74 n.48 (E.D.N.Y. 2010). Although we agree that evidence of concealment may be used to e stablish the intent element of tax-based mone y laundering, the term “conceal ” is not used in § 1956(a)(1)(A)(ii), as it is in § 1956(a)(1)(B)(i). Our discu ssion of “concealment” responds to the Government’s ar gument that it proved intent wit h evidence of Ms. Christy’s concealment. Aplee. Br. at 37-42 (using the word “co nceal” or “concealment” 14 times).

24 The Government argues that, to make her deposits more traceabl e, Ms. Christy could have deposited the cash i nto her own account and then tra nsferred it to her loan servicer. See Aplee. Br. at 41-42. But, as Ms. C hristy notes, “had [she] mov ed the cash deposits through more than one a ccount, the government would ar gue that the very multiplicity of transactions indic ated a design to conceal.” A plt. Reply Br. at 13.57 introduce the loan documents int o evidence, so there is no evid ence that Ms. Christy’s payments were irregular relative to the terms of the loan and h er prior payments. The amounts of Ms. Christy’s payment s varied, but they still fell w ithin a $2,400 range, and none deviated from the average pa yment by more than $1,200. No thing about the frequency or size of the payment s suggests Ms. Christy was atte mpting to conceal the source of her income. Based on the foregoing, the Chris tys’ loan payments were neithe r unusual nor suspicious. The embezzl ed funds could just have easily been sp ent on groceries, see United States v. Dobbs , 63 F.3d 391, 397-98 (5th Cir. 1995) (overturning money laundering convictions when illicit funds were used “to pay ran ch and family expenses”);

a new car, see Sanders , 929 F.2d at 1472; or on personal checks, see Caldwell , 560 F.3d at 1222; none of which constitutes “concealment.” See Carter , 530 U.S. at 269 (interpreting mens rea in crimi nal statute to avoid punishing “ otherwise innocent conduct”). 25 Just as the purchases in Sanders and Caldwell were deemed “ordinary commercial transactions” and the evidence failed to show they w ere designed to conceal or disguise drug sale proceeds, M s. Christy’s loan payments als o were ordinary

25 At trial, Mr. Schmidt testified that if Ms. Christy had spent the embezzled money on “groceries, diapers, a nything, that becomes money laun dering.” ROA, Vol. III at 501. The prosecutor also asked Mr. Schmidt, “[I]f I sell dr ugs and I’ve got 10,000 and I buy a new car, spending that m oney is money laundering?” Id. Mr. Schmidt answered “yes,” but his answer plainly mi sstates the law of this circuit

. See Sanders , 929 F.2d at 1472 (reversing money laundering c onvictions for purchasing veh icle with proceeds of drug sales). The Government ec hoed Mr. Schmidt’s testimony at oral argument. See Oral Arg. at 24:43-26:40 (Governm ent counsel arguing that Ms. C hristy would be guilty of money laundering if she spent embezzled money on groceries).58 commercial transactions and the evidence failed to show they we re conducted to violate § 7206 of the tax code. Indeed, Ms. Christy’s loan payments we re “open and notorious” and exposed her illicit income stream. Suba , 132 F.3d at 675. The Government has not shown that Ms. Christy’s intent to make the loan payments rested on anything othe r than her contractual obligati on to make them. See United States v. McGahee , 257 F.3d 520, 527 -28 (6th Cir. 2001 ) (overturning money laundering convictions for payment s on residence, personal loan , and car loan). She did not run the transaction thro ugh a third party, as in Crader . 2001 WL 872711 at *1. She did not lie about the source of the money, as in Zanghi . 189 F.3d at 76. N or did she use a corporate affiliate to disguise the nature of her transaction s, as in both Crader , 2001 WL 872711 at *1, and Zanghi , 189 F.3d at 76. Indeed, she made no representations regarding the source of the c ash for her loan payments. 26 Nothing about the payments suggests they were made with t he intent to further her tax frau d. See Zanghi , 189 F.3d at
78-79. b. False tax return not evidence of specific intent The Government is left with its s econd argument—that Ms. Christ y “clearly had no intent to report the substan tial increase in her income as a result of her embezzlement

26 The dissent argues that Ms. Chr isty’s cash payments made her t ransactions “difficult to trace” and allowed her “to obscure the source of the funds.” Dissent Op. at 14. But the Aliceville Bank record ed every one of the Christys ’ transactions. As a result, the Government was able to obt ain a full record of her deposits and introduce it at trial— apparently, the cash paymen ts were “[easy] to trace.”59 from CNB, as evidenced by her f ailure to report the proceeds fr om her embezzlement as income.” Aplee. Br. at 40. 27 In denying Ms. Christy ’s motion for acquittal, the district court similarly relied on Ms. Chr isty’s “intent to file a false income tax return in violation of 26 U.S.C. § 7206(1 ).” ROA, Vol. I at 337. The Government relies on Zanghi ’s declaration that “[e]v idence that a taxpayer filed returns knowing that he sh ould have report ed more income than he did is sufficient to support a finding of willful i ntent to defeat and evade taxe s.” 189 F.3d at 78. But the quoted passage came in Zanghi ’s discussion of the district c ourt’s jury instruction error on the requisite mens rea for 26 U.S.C. § 7201, not a discussio n of the specific intent requirement of § 1956(a)(1)(A)(ii). See id. It is therefore inapplicable to the question presented here. Ms. Christy’s failure to report income on her tax filings does not show that she made the loan payments with the purpose of eva ding taxes. It s hows she evaded taxes.

27 As noted above, the loan paymen ts occurred between March 17, 2 014, and May 12, 2014. To the extent the Gove rnment’s argument may stem fro m Ms. Christy’s filing her 2014 return on Ma rch 12, 2015, it points to no evidence tha t the loan payments were made to facilitate filing a false return or that her mental sta te 10 months after the loan payments were made would tell th e jury anything about her subje ctive thoughts when she paid the loans, much less es tablish specific intent. To the extent the Government may wish to rely on Ms. Christy’s loan payments happening at around the time wh en she filed her 2013 tax return , the jury would have to infer she was thinking about her t axes when she paid the loans, and then would have to infer from that inference that she paid the loans so that she c ould file a false return the next year. But this would be ba sed on speculation and the “pil ing [of] inference upon inference” that fails to establish sufficiency. Rufai , 732 F.3d at 1188. We further note that the Governm ent has not explicitly made the se arguments.60 Congress made Ms. Christy’s failu re to report income on tax ret urns a separate crime under 26 U.S.C. § 7206(1), and s he was senten ced for each of he r six violations of that statute. She also was sentenced f or her bank embezzlement in v iolation of 18 U.S.C. § 656. Apart from the ev idence of those crimes, the Government (and the dissent) cannot point to evidence that shows Ms. C hristy’s specific intent to f urther her tax fraud by engaging in specified financial transactions, as required for a violation of § 1956(a)(1)(A)(ii). Accepting the Government’s argument would require us to hold that every cash payment made with ill- gotten funds amounts to money laundering, provided the defendant also fails to repor t those funds when filing a ta x return the next year. 28 We decline to adopt such a sw eeping interpretation. Instead, a s we have done under other subsections of § 1956, we “reject the government’s argument that the money laundering statute should be inter preted to broadly encompass a ll transactions, however ordinary on their face, which inv olve the proceeds of unlawful activity.” Sanders , 928 F.2d at 946.
* * * *

28 The dissent argues that “it is the repeated making of loan pa yments with illicit funds and the repeated failure to report those funds as income on her tax returns fro m which the jury could have reasona bly inferred (as it did) that she made the subject loan payments with illicit funds so as not to have to report those f unds as income.” Dissent Op. at 13-14 (emphasis in origi nal). This argument fails to ex plain why the loan payments are any different from re peated car payments, repeated grocery store trips, repeated electric bill payments , or any other repeated payment that we would otherwise consider “money spending.” See Garcia-Emanuel , 14 F.3d at 1474.61 The Government has produced insu fficient evidence that a purpos e for Ms. Christy’s making the loan paymen ts was to file false tax docume nts or to hide income from the IRS. Nothing about the loan payments concealed the so urce of the funds. She embezzled funds, filed false retu rns, and knowingly used embezz led funds to pay loans. But because the Government faile d to produce adequate specific intent evidence, the loan payments were money spending, not money laundering. Accordingl y, we reverse Ms. Christy’s money laundering convictions. 29
C. False Bank Entries—Jury Instruction Ms. Christy challenges her fals e bank entry convictions, argui ng that the district court erred in failing to include a “materiality” element in it s instruction to the jury. But even assuming 18 U.S.C . § 1005, the false bank entry statute, r equires proof of a “materiality” element, we conclu de that the district court’s om ission in this instance was harmless because Ms. Christy’s fa lse entries were material.
1. Legal Background Federal law provides that “[w] hoever makes any false entry in a ny book, report, or statement of [a federally insu red] bank . . . with intent to in jure or defraud such bank . . . or to deceive any officer of suc h bank” is guilty of making a f alse bank entry. 18 U.S.C. § 1005.

29 A sufficiency of the evidence challenge requires a court to de termine whether the evidence was suffi cient to prove what the law requires to c onstitute an offense. Drawing from Tenth Circuit and out-of-circuit cases, we have ca refully spelled out what the law requires to prove the sp ecific intent element of tax-ba sed money laundering. The dissent cites no authority for its money laundering analysis an d does not even mention the term “specific intent”—the mens rea the Government was required to prove.62 The statute does not expressly state a materiality requirement. See id. But even when a statute includes an implie d materiality element, a distr ict court’s failure to instruct the jury on that element is ha rmless if “the record contains [n o] evidence that could rationally lead to a contrary find ing with respect to the omitt ed element.” See Neder v. United States , 527 U.S. 1, 19 (1999). Materiality is an objective inquiry. See TSC Indus. v. Northway, Inc. , 426 U.S. 438, 445 (1976) (“The question of materiality . . . is an objec tive one.”); United States
v. Irvin , 682 F.3d 1254, 1267 (10th Ci r. 2012) (describing “materiality in the bank fraud

context as an objective quality”). A false statement is m aterial when it has “a natur al tendency to influence, or [is] cap able of influencing, the deci sion of the decisionmaking body to which it was addressed.” United States v. Gaudin , 515 U.S. 506, 509 (1995) (quotations omitted). In assessi ng materiality, courts ask thr ee questions: (1) What statement was made? (2) What decision was the decision maker considering? (3) Was the statement capable of influencin g the relevant deci sion?
United States v. Williams , 865 F.3d 1302, 1310 (10t h Cir. 2017) (interpreting “materiality” under the bank fra ud statute, 18 U.S.C. § 1344). In Williams , we found that the defendant’s false statements in a loan application were mat erial even though the bank ultimately did not issue him the loan because his “misrepresent ations were capable of influencing the bank’s decision.” Id. at 1314 (emphasis added). 30

30 In Neder , the Supreme Court held that th e bank fraud statute, 18 U.S.C. § 1344, requires proof of mater iality. 527 U.S. at 25.63 2. Additional Background Ms. Christy’s false bank entry co nvictions concerned her six fa lse “sales” of cash from CNB Burlington to the FRB. She filled out and signed “cas h-out” tickets that misrepresented the amount of mon ey CNB Burlington had sent to t he FRB. Her false sales to the FRB contained discrepancies of:

 $297,000 (Count 2)

 $400,000 (Count 3)

 $562,000 (Count 4)

 $270,000, $225,000, a nd $225,000 (collec tively, Count 5)

 $300,000 (Count 6)

 $680,000 (Count 7) Ms. Nabus discovered Ms. Christy ’s errors and prompted her to c orrect them, which she eventually did. At trial, Ms. Christy objected t o the jury instruction on the f alse bank entry charges, arguing that it should have included a requirement tha t “the [false bank] entry was material.” ROA, Vol. I at 52 . She did not provide a sugge sted definition of “material.” The district court overruled the objection and ins tructed the jury that it must find four elements to convict Ms . Christy of violating 18 U.S.C . § 1005: (1) CNB was a federa lly insured bank. (2) Ms. Christy made a false entry in a book, record, or state ment of CNB. (3) Ms. Christy knew the entry was false when she made it.64 (4) Ms. Christy made the false en try with the intent to deceiv e an officer of CNB.
3. Standard of Review “[W]e review the jury instructio ns de novo and view them in th e context of the entire trial to determine if the y accurately state the governin g law and provide the jury with an accurate understanding o f the relevant legal standards and factual issues in the
case.” United States v. Kalu , 791 F.3d 1194, 1200-01 (10th Cir. 2015) (quotations omitted). “In doing so, we consider whether the district court abused its discretion in shaping or phrasing . . . a particul ar jury instruction and dec iding to give or refuse a particular instruction.” Id. (quotations omitted). When a jury instruction erroneou sly omits an element of the off ense, the government must prove harmless e rror by showing “beyond a reaso nable doubt that the error complained of did not contr ibute to the verdict obtained. ” Neder , 527 U.S. at 15. An error is harmless when “the om itted element was uncontested and supported by overwhelming evidence, such that t he jury verdict would have be en the same absent the
error.” Id. at 17.
4. Analysis Neither the Supreme Court nor thi s court has addressed whether the false bank entry statute, 18 U.S.C. §10 05, requires proof of materiality. Even if it does and if the district court erred in not ins tructing the jury on materiality , the Government can show “beyond a reasonable doubt that the error complai ned of did not contribute to the verdict obtained.” Neder , 527 U.S. at 15 (quotations omitted).65 Ms. Christy’s false bank entries were plainly material. They r eported sales to the FRB containing discrepancies of between $297,000 31 and $680,000, and she signed the tickets and attempted to incorpora te these discrepancies into t he Bank’s records. On the day of the audit, the vault shou ld have contained $883,320. Mr . Snook testified that the vault’s records showed it contai ned between $750,000 and $1,000 ,000 in the months leading up to the audit. Thus, e ven the smallest of the discre pancies ($297,000) in Ms. Christy’s entries constituted mo re than 25 percent of the branc h’s total reported cash reserves—hardly immaterial. T hese facts are uncontroverted. M s. Christy does not point to any countervailing evidence su ggesting her false entries wer e immaterial. See Neder , 527 U.S. at 17. Burlington CNB reasonably relied on these statements to maintai n its records and manage cash reserves. Although Ms. Nabus promptly caught Ms. C hristy’s errors, as in
Williams , Ms. Christy’s “misrepresentations were capable of influencing the bank’s decision[s].” 865 F.3d at 1314 . At trial, Bank employees, inc luding Mr. Snook, testified that they make business decisi ons based on the amount of cash i n the vault at a given time. Leading up to the audit, h e believed the Bank had too mu ch money in its vault. If he had known the vault held only $119,320, it is implausible an d inconceivable that he would have asked the Bank to re duce its reserves by approximate ly $400,000. Indeed,

31 The smallest single false entry was $225,000, but that entry w as combined with two others in Count Five, for a total of $720,000. But whether we consider $225,000 or $297,000 to be Ms. Christy’s sma llest discrepancy , our material ity analysis is the same.66 such a reduction would have bee n impossible. To say that losin g one quarter of its cash reserves is not capable of influ encing a bank’s decisionmakers defies reason. The verdict was “supported by overwhelming evidence.” See Neder , 527 U.S. at 17. The Government can show be yond a reasonable doubt that a j ury instruction as to materiality would not have aff ected the outcome at trial. See id. We therefore affirm Ms. Christy’s false bank entry convictions.
III. CONCLUSION In sum, we (1) reject Ms. Christy ’s prosecutorial misconduct c hallenge because she has not shown the prosecutor’s comments influenced the jury ’s verdict; (2) reverse Ms. Christy’s money laundering c onvictions because the Governme nt did not produce sufficient evidence of the inten t to file a false tax return; a nd (3) affirm Ms. Christy’s false-bank-entry convictions becau se, even assuming materiality is an implied element of 18 U.S.C. § 1005, its omission fro m the jury instruction was ha rmless error. We remand to the district court with instr uctions to vacate the convictio ns for money laundering, resentence the defendant, and pr oceed in accordance with this o pinion.Case No. 17-3122 United States v. Christy O’BRIEN , J., concurring in part , dissenting in part. I agree with the Majority’s opi nion in all respects but two. First, it says reversing the mone y laundering counts (incorrec tly, in my view 1 ) excuses any need to address an issue warranting decision. The issue is whether the district judge erred in failing “t o address [Christy] personall y” regarding allocution.

1 The Majority concludes a remand for resentencing is warranted based on its reversal of the money laundering counts (Counts 18-23). While I disagree with the reversal (my second point), it does not require a resentencing hearing. A simple amendment to the judgment voidi ng the money laundering counts w ould suffice, leaving the allocution issue viable. Christy’s advisory sentencing gui deline range was calculated ba sed exclusively on the bank embezzlement count whic h, as a result of grouping unde r USSG § 3D1.2, comment. (n.6), resulted in an ad visory guideline range of 46 t o 57 months imprisonment on all counts except the declari ng false tax returns counts, wh ich carried a statutory maximum sentence of 36 months, see 26 U.S.C. § 7206(1). The j udge sentenced Christy to (1) 51 months imprisonment an d three years of supervised rel ease on the bank embezzlement and false bank ent ries counts, (2) 51 months in pr ison and three years of supervise release on the money laundering counts, and (3) 36 mo nths imprisonment and one year of supervised release on the false tax returns counts. He ordered the sentences to run concurrent with each othe r. As a result, Christy’s sent ence will remain 51 months in prison and three years of supe rvised release even without th e money laundering counts. Moreover, although the judge ordered restitution in the amount of $857,708, that amount arose solely from the bank embe zzlement and filing false tax re turns counts. The money laundering counts played no role in that calculation. Theoretically, on resentencing th e judge could vary downward fr om the advisory guideline range because the money laundering counts are no long er part of the equation. But my review of the record reveal s Christy’s sentence—both the guideline range and the ultimate sentence—to rest on the embezzlement/false bank entrie s counts, with the other counts as mere tag-alongs. A variance might, in theory, be con ceivable, but it appears highly improbable in the p enetrating light of reality. Moreover, should anot her opportunity to allocute be appropriate at re-sentencing I have every confidence that the district judge would be accommod ating. Other than justifying a refusal to decide t he allocution issue, I see no r eason for us to insist upon a second opportunity to allocute or even mention it.- 2 - (Majority Op. at 2 n.1 (quotatio ns marks omitted)). The trial judge adequately addressed and advised her, and w e should say so. The issue was fully briefed a nd argued. I disagree with Chris ty’s assumption of error and even more so with her u ndifferentiated reading of United States v. BustamanteConchas , 850 F.3d 1130 (10th Cir. 2017 ) (en banc). The judge personal ly addressed Christy, first informing her of t he right to speak and then off ering her that opportunity. She said she understood her righ t to allocute and later, throug h counsel, declined the invitation. As I will later fully explain, Christy’s allocutio n rights were not abused and
Bustamante-Conchas does not inform this debate; it involved the complete denial o f allocution. Second, the government produced sufficient evidence to convictChristy of taxbased money laundering. Her re peated use of illicitly obtained funds to pay down her loans and her repeated failure to report those funds as income on her tax returns demonstrate one of he r purposes (intent), if not the principle one, was to violate the tax laws. See United States v. Zanghi , 189 F.3d 71, 78-79 (1st Cir. 1999). In concluding otherwise, the Majority fails to consider evidence and reasonab le inferences to be drawn therefrom, which adequately suppo rt the jury’s verdict. The Ma jority’s reasoning also conflates tax-based money laund ering under 18 U.S.C. § 1956(a)( 1)(A)(ii) with concealment-based money launderi ng under 18 U.S.C. § 1956(a)(1) (B)(i).
A. Allocution The common law recognized a def endant’s right to allocute at s entencing. That right required “the defendant [to] be personally afforded the o pportunity to speak before- 3 - imposition of sentence.” Green v. United States , 365 U.S. 301, 304 (1961) (“As early as 1689, it was recognized that the court’s failure to ask the def endant if he had anything to say before sentence was imposed required reversal.”). Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) codifi es the right: “Before imposing sentence, the court must . . . address the defendant personally in order to permit the defen dant to speak or present any information to mitig ate the sentence.” 2 Christy claims the judge violated the rule. He did no such thing. She waive d her right to allocute. At the beginning of the sentenci ng hearing, the judge personal ly and directly addressed Christy: You do have a right—under the r ule that governs this hearing, y ou have a right to make a statement. You are not requi red to make a statement, bu t you do have that right. And later in the hearing , I’ll call on you to hear any statement you choose to make. Make sense to you? (R. Vol. 3 at 977.) She indicate d she understood. As promised , later in the hearing the judge returned to Christy’s right to make a statement: “So now, Mr. Biebighauser [defense counsel], I turn to the question of an allocution stat ement. Does Ms. Christy

2 The rule explains, in clear langu age, why addressing the defen dant is necessary: “in order to” permit the defendant to speak or present informat ion in mitigation. “In order to” could also be phrased as “so that.” See https://www.thesaurus.com /browse/in%20order%20to . Either way the language requires a one-on-one exchange b etween the judge and the defendant and t hen it explains why a personal communication is necessa ry—so the defendant may allocu te, if she wishes. I am at a loss to divine some c oded message requiring anything mo re. The judge met the call—he explained the purpose o f allocution to Christy, one on one, in words she could, and did, understand. He later a fforded her the opportunity to do so. It would be better for the judge t o speak directly to the defen dant throughout the exchange, rather than relying on counsel. But it is beyond our ken to impose best practices; our office is only to i nsure the minimum requirement s of the rule are met.- 4 - wish to make a statement in th e nature of allocution at this ti me?” ( Id . at 1012 (emphasis added).) Significantly, the ques tion to counsel was not, “Do y ou have something more to offer?” Instead, and clearly, it was, “Does your client want t o make a statement?” The attorney responded , “No, Judge.” ( Id .) In light of that abundantly c lear answer, the judge concluded, “All right . Then the record shou ld show that she ha s waived that opportunity .” ( Id . (emphasis added).) Neither Chr isty nor her a ttorney uttered a word of protest. The judge was right; the waiver was complete. I can envision only two possibl e claims of error. Perhaps, wi th Christy at his side, defense counsel flagrantly lied to the judge, something we ough t be loath to presume, especially on a sparse record. Perhaps it was a miscommunicati on between Christy and counsel. In either event, Chris ty’s remedy, if any, should be grounded in post-conviction review under 28 U.S.C. § 2255 wh ere the salient issue—was couns el ineffective, willfully or otherwis e—can be addressed on a fully developed re cord. 3 Unless we presume counsel cannot answer a binary question for his client (and in her presence), facts matter: sometimes they re ally matter and are easily obtai ned. If her lawyer accurately relayed her answer (“I do not want to make a stateme nt”) to the judge, she waived a known right. An intricate dance to the rhythm of Fed. R. Crim. P. 32(i)(4)(A)(ii) is unnecessary, e ntertaining as it may be.

3 While, on its own, “an allocuti on error does not provide groun ds for habeas relief,” Bustamante-Conchas , 850 F.3d at 1135 n.1, an attorn ey’s deficient representation, if prejudicial, may. Indeed, ine ffective assist ance of counsel claims should generally be brought in collateral proceedin gs, rather than on direct appeal

. United States v. Galloway , 56 F.3d 1239, 1240-41 (10th Cir. 1995) (en banc).- 5 - But even ignor ing her waiver, Christy’s failure to object at s entencing entitles her only to plain error review. Bustamante-Conchas , 850 F.3d at 1137 (reaffirming that unpreserved allocution errors a re subject to plain error review ). She admits as much, arguing the judge plainly erred in failing to comply with Rule 32(i)(4)(A)(ii). The government concedes the first th ree prongs of plain error revie w—(1) error, (2) that is plain, which (3) affects substa ntial rights—are satisfied. Id . (setting forth the four prongs of plain error review). As a re sult, Christy focuses on the fo urth prong, which, absent two “unusual circumstance[s],” i s satisfied by a complete denia l of allocution. Id. at 1142. Because the unusu al circumstances Bustamante-Conchas mentioned in its analysis of the fourth prong are not prese nt here, she presumes the judg e committed plain error.
But Bustamante-Conchas has no place in our reckoning . It involved the complete denia l of allocution. This case, on th e other hand, does not. Even u nder plain error review she fails on all prongs. 4 For an error to be plain, it must be “clear [or obvious] at the time of the appeal.”
United States v. Smith , 815 F.3d 671, 675 (10th Cir. 2016); see also United States v. Wolfname , 835 F.3d 1214, 1221 (10th Ci r. 2016). An error is clear or o bvious “when it is contrary to well-settled law.” Smith , 815 F.3d at 675 (quotation marks omitted). “For us to characterize a proposition of law as well-settled, we normal ly require precedent directly in point from the Supreme Court or our C ircuit or a consensus in the ot her

4 Although the government conceded the first three prongs of pla in error review were satisfied, “[w]e possess th e discretion to reject what is, in effect, a stipulation on a question of law by the government.” Bustamante-Conchas , 850 F.3d at 1141 n.7 (quoting U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc. , 508 U.S. 439, 448 (1993)).- 6 - circuits.” Id . (emphasis added). Bustamante-Conchas is not on point. Stare decisis, a venerable tenet of the common law, has been ca refully woven into American jurisprudence. Rightfu lly so; it serves important pur poses. Among others, it is egalitarian—the law, once announ ced, does not change, case by c ase. It also makes the law predictable—reliance on stabl e law enables people and legal entities to comfortably plan their affairs. It is effici ent—eliminating the need to re peatedly offer a detailed explanation for a proposition earlier laid to rest. But, if no t carefully applied, it can pervert otherwise admirable e nds. In the words of Justice Card ozo: “Judges march at times to pitiless conclusions under the prod of a remorseless l ogic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it, none the less, with averted gaze, convinced as they plunge the knife tha t they obey the bidding of their office.” Benjami n N. Cardozo, The Gro wth of the Law 66 ( 1924). Relief from stifling regularity lies in another tenet of the c ommon law, also carefully woven into American j urisprudence. In applying prece dent, judges may, sometimes must, distinguish the case at bar from an earlier one , which, at least seemingly, announces a hard an d fast rule. Doing so restricts like treatment to genuinely like matters. That lesson is a w orthy one, well-illustrated by cases in another context (qualified immunity) decrying sim ilarities drawn at a high leve l of generality. See, e.g. , Kisela v. Hughes , __ U.S. __, 138 S. Ct. 1148, 1152 (2018); District of Columbia v. Wesby , __ U.S. __, 138 S. C t. 577, 590 (2018); Ashcroft v. al-Kidd , 563 U.S. 731, 742 (2011).- 7 - In summary and practice, the t hreads of stare decisis are appr opriately entangled with the opposing, but no less imposing, threads of exception. When applied together in a principled way, they are the warp and the woof of a legal tap estry and together they ameliorate the risk of uni ntended consequences.
In Bustamante-Conchas , neither before nor after ann ouncing a tentative sentence did the judge “‘address the defe ndant personally in order to pe rmit [him] to speak or present any information to mitig ate the sentence.’” 850 F.3d a t 1137 (quoting Fed. R. Crim. P. 32(i)(4)(A)(ii)). As the en banc court made clear no less than six times, that case involved the “complete denial of allocution.” Id . at 1133-34, 1138, 1140, 1142, 1144. A complete denial of allo cution satisfies the first two prongs of plain error review, it said, because it is contrary t o well-settled law from our Ci rcuit as well as the Supreme Court which requires a judge to afford the defendant an opportu nity to personally speak on his own behalf prior to imposition of the sentence. Id . at 1137-38 (citing Hill v. United States , 368 U.S. 424, 426 (1962), and United States v. Landeros-Lopez , 615 F.3d 1260, 1264 (10th Cir. 2010)). We al so decided a complete denia l of allocution will generally satisfy the third and fourth prongs of plain error re view except in some specifically-delineated circumstances. Id . at 1140, 1142-43. This markedly different case is not within its orisons. Here, Christy could have, had s he chosen to do so, “personally engage[d]” with the judge, presenting “mitigati ng circumstances” and “personal characteristics” which would have “enable[d] [him] to craft an individualized sentence ” and “avoid[ed] the appearance of . . . assembly-line justice.” Id

. at 1136 (quotation marks omitted) (noting- 8 - the important ends served by allo wing a defendant to personally address the sentencing court). With full knowledge of her right to allocute, she, in the presence of and through her attorney, simply declined to do so. That the judge posed the ques tion of allocution to defense cou nsel, rather than Christy, is of no moment when placed in context. “Rule 32 prov ides a defendant with two rights: ‘to make a statement in his own behalf, and to pres ent any information in mitigation of punishment.’” Id . at 1135 (quoting Green , 365 U.S. at 304). “Because the former entitlement is necessarily personal,” we said, “a distri ct court cannot discharge its duties under Rule 32 by permitti ng counsel to offer argument in mitigation” as even “‘the most persuasive counsel may not b e able to speak for a defendan t as the defendant might, with halting eloquence , speak for himself.’” Id . at 1135-36 (quoting Green , 365 U.S. at 304). In this case, even though t he judge asked counsel whethe r Christy wished to allocute, the invitation was personal to her—“ Does Ms. Christy wish to make a statement in the nature of allocution at t his time?” (R. Vol. 3 at 1012 (emphasis added).) In other words, the judge was offering Ch risty the opportunity to person ally address him, not merely asking if counsel wa nted to speak on her behalf. 5 And because the invitation to

5 Christy suggests an allocution query directed at counsel is in sufficient. In addition to Green and Bustamante-Conchas , she relies on United States v. Adams , 252 F.3d 276, 279 (3d Cir. 2001). But Adams hardly represents a “consensus” in the other circuits necessary to constitute “well-settled law” for purpose s of satisfying the first and second prongs of plain error review. See Smith , 815 F.3d at 675 (quotation marks omitted). In any event, after ru ling on Adams’ objections to t he presentence report, the judge asked, “Anything else?” 252 F.3d at 278 (quotation marks omitted). Defense counsel replied, “Do you want to hear me as far as sentencing i s concerned?” Id

. (quotation marks omitted). The j udge responded, “I want to hea r what you want to say about that, of course. And th en I want to hea r if the remorsef ul defendant has anything- 9 - speak (and Christy’s response) cam e before the judge announced the sentence, tentative or otherwise, no error occu rred, much less plain error. See United States v. ValdezAguirre , 861 F.3d 1164, 1165 (10th Ci r. 2017) (“By definition, allocut ion is to take place before the sentence is imposed . Otherwise, the defendant would have little to gain from making a statement.”).
In Bustamonte-Conchas , we decided a defendant n eed not proffer a proposed allocution statement in order t o satisfy the fourth prong of pl ain error review. 850 F.3d at 1143-44. We concluded such wr itten statement c ould not adequat ely portray the defendant’s “sincerity and cred ibility” or “speak for a defenda nt as the defendant might, with halting eloquence , speak for himself.” Id . at 1136, 1144 (quota tion marks omitted). But we need not fret over the diffi culty of deciding what Chris ty might have said, had she decided to speak, or its probabl e impact on the sentencing judg e. Those issues are
he wants to say.” Id . (quotation marks omitted). Aft er defense counsel and the government presented their ar guments, the judge then asked defe nse counsel, “Okay. Would your client like to exerc ise his right of allocution?” Id . (quotation marks omitted). Counsel said “No.” Id . (quotation marks omitted). The Third Circuit concluded the judge’s allocution query was in sufficient because “the Supreme Court has held that [an allocution] query, directe d towards counsel, does not satisfy the requirement that the district court personally address the defendant himself.” Id . at 279. In support, the Adams court cited Green

. Id . But, in Green , the sentencing court merely asked, “Di d you want to say something?” and it was unclear from the record whether the ques tion was directed to defendant or counsel. 365 U.S. at 302, 304-05 (quotation marks om itted). The Court admonished th at “merely affording defendant’s counsel the opportunity to speak [would not] fulfill[] . . . Rule 32” and “[t]rial judges before sentenc ing should, as a matter of good j udicial administration, unambiguously address themselves to the defendant.” Id . at 304-05 (emphasis added). In this case, the judge did not merel y afford defense counsel the opportunity to speak on Christy’s behalf. Instead, he ex pressly told Christy of her ri ght to speak and later extended her a personal invitati on to speak prior to imposing s entence. Defense counsel was merely the intermediary.- 10 - nowhere present here. This case involves not what might have b een said, or how. The only issue is whether defense cou nsel lied or otherwise erred. This is a run of the mill issue uniquely suited to a § 22 55 proceeding where the rubber m eets the road and facts, not presumptions, prevail. We should treat this issue for w hat it is—a contrived “gotcha” moment—raised for the first time on appeal and being milked for leverage. If cou nsel was ineffective, resulting in a waiver of his clie nt’s rights, the remedy lies w ith a 28 U.S.C. § 2255 motion. Otherwise, it should suffer a quiet demise.
B. Money Laundering In Counts 18-23, Christy was c harged and convicted of tax-based money laundering, 18 U.S.C. § 1956(a)(1)(A)(ii), based on six cash de posits she made to two loan accounts from March 17, 20 14, to May 12, 2014 (“the loan p ayments”). The jury was told that to convict Christy of these counts, it must find, beyond a reasonable doubt, she made the loan payments with funds she knew were proceeds fr om her bank embezzlement and “with the int ent to engage in conduct constitu ting a violation of section 7201 and 7206 of the Inte rnal Revenue Code of 1986.” ( R. Vol. 1 at 224, 226, 228, 230, 232, 234.) The money la undering instructions did not define what conduct was prohibited by §§ 7201 and 7206. But Christy was also indicted w ith six counts (Counts 8-13) of declaring false tax returns for tax years 2009-2014 i n violation of § 7206 of the I nternal Revenue Code. With regard to those counts, the j ury was instructed § 7206 “ma kes it a crime for anyone willfully to make a false material statement on an income tax r eturn.” ( Id . at 204, 206,- 11 - 208, 210, 212, 214.) The false stat ement in this case was unde rreporting her income by failing to include her embezzled funds as income. Melding thes e instructions with those relating to the money laundering c ounts, the jury was told not to convict Christy of money laundering, unless it fou nd, beyond a reasonable doubt, t he loan payments were made with funds she knew to be p roceeds from her bank embezzlem ent and with the intent not to report those funds as income on her tax returns. Unlike in the district court, C hristy does not here dispute th e sufficiency of the evidence demonstrating the loan p ayments to have been made with funds she knew were embezzled. She now cont ends only that the e vidence was insuffi cient to show the loan payments were made with the int ent to avoid reporting the embez zled funds as income on her 2015 tax return. The Majority agrees, saying the governmen t’s evidence failed to show Christy made the loan payments with any intent other than to satisfy her contractual obligation to make them. It relie s in large part on the neithe r unusual nor suspicious (in size or frequency) nature of the l oan payments and the absence of any overtly conspicuous attempt by Christy to disguise or conceal the payme nts. In the end, the Majority concludes the governmen t’s evidence proved no more tha n the payments were made with illicit funds, which is “money spending” not “money l aundering.” I see it differently. As stated above, in addition to the money laun dering counts, Christy was charged with six counts of declaring fa lse tax returns for tax years 20 09-2014. These counts were based on her failure to report ov er $400,000 in embezzled funds as income on those returns. In support of these cou nts, the government presented the testimony of an IRS- 12 - agent who examined her bank accou nts as well as her tax returns during that time period. The examination revealed Christy and her husband having made ov er $400,000 in unexplained cash deposits to th eir bank accounts, including to their loan accounts, all of which they failed to report as i ncome on their 2009-2014 tax re turns. The jury convicted Christy on these counts. As a re sult, the jury had before it e vidence that at the time she made the loan payments which fo rmed the basis for Counts 18-23 (March-May 2014), she had four times before (2009-2 012) made similar payments wit h funds she failed to report as income. Not only that , at about the same time she ma de the March-May 2014 loan payments, she filed her 20 13 return, which also failed to report the funds used to pay down her loans as income. Her s ystematic and repeated conduct permits a reasonable inference that her purpose in mak ing the March-May 2014 loan pa yments was to make use of embezzled funds without re vealing their source and the a ccompanying purpose of not reporting the funds as incom e on her 2014 tax return (which would have necessarily aroused suspicion about her embez zlement), i.e., to file a fals e tax return. The Majority myopically discoun ts this evidence, saying Christ y’s failure to report the loan payments as i ncome on her 2014 tax return does not sho w she made them with the purpose of evading taxes. W ere it to find otherwise, it sa ys, then every cash payment with ill-gotten funds amounts to m oney laundering, provided the defendant also fails to report those funds when filing a tax return the next year. Not so. It is the intent to violate the tax laws which differentiate s simply making a cash payment with illicit funds (money spending) with money laundering . Admittedly, a single failure to report as income illicit funds used in making cash payme nts might not sufficiently show that a payment made- 13 - with those funds was done with a n intent to evade taxes. Howev er, multiple failures to report, as income, illicit funds s o used supports a reasonable inference that such a current payment was motivated by, or at least included, an intent to av oid reporting those funds as income. “Past behavior is th e best predictor of future beha vior.” United States v.
Estrada-Lozano , 221 F. App’x 742, 7 49 n.9 (10th Cir. 2007) (unpublished). No tably, the jury did not convict Christy o f the money laundering counts (Co unts 14-17) based on four cash deposits she made to Loan 7521 in July and September 2011 and in January and October 2012. At the time she ma de the October 2012 payment, s he had filed only three false tax payments (2009-2011); a t the time she made the 2011 p ayments and January 2012 payment, only two (2009-2010). In a similar vein, the Majority concludes we cannot rely on Chr isty’s having made the loan payments around the tim e when she filed her 2013 tax r eturn because such reliance would constitute “specul ation and conjecture” and the “piling [of] inference upon inference” which is not enough to support a conviction. United States v. Rufai , 732 F.3d 1175, 1188 (10th Cir. 2013) (q uotation marks omitted). Ac cording to it, the jury would have to infer Christy was thinking about her taxes when s he made the loan payments and then infer from that inference that she paid the l oans so that she could file a false return the next year. But I do not rely solely on the fa ct she made the loan payments around the time she filed her 2013 tax return. Rather, it is t he repeated making of loan payments with illicit funds and the repeated failure to report those funds as income on her tax returns from which the jury could have reasonably inferred (as it did) that she made the subject loan payments with illicit funds so as not to have to report those funds as- 14 - income. That aside, a reasonable inference could be drawn as t o her making the loan payments around the time she file d her 2013 tax return—at the t ime she made loan payments with the embezzled fund s, she realized reporting the e mbezzled funds as income would alert authorities to her illegal activities and en d her lucrative scheme. She could not, with impunity, report t hose funds as income the next year; following her pattern was essential to avoiding detection, so she acted just as she had in previous years. It is quite common, in fact, to think about the tax consequence s when conducting a financial transaction (i.e., mak ing a charitable contribution, deciding how much to contribute to a retirement plan, o r deciding whether to pay off a mortgage). That is the nature of taxes—activity is ge nerally not reported until the ye ar after it occurs. The Majority also makes much o f the fact that Christy’s deposit s were “open and notorious” and exposed her illic it income stream. (Majority’s Op. at 57.) I beg to differ. Each of the loan payments in C ounts 18-23 (as well as the othe r payments not charged in the indictment) were made in cash, which is difficul t to trace and allowed her to obscure the source of the fund s. Those cash payments eventu ally caught up to her, but they served a clearly intended purpose for several years (and p robably would have continued to do so had her emb ezzlement not been discovered). Concealment and other suspicious activity might well se rve as proof of an intent to v iolate the tax laws, but their absence, at least in this case , does not demonstrate lack of cr iminal intent. Rather it reveals a successful scheme to mak e the transactions look as “n ormal” as possible. Moreover, nothing in the tax-base d money laundering provision, 18 U.S.C. § 1956(a)(1)(A)(ii), requires such concealment or suspicious ac tivity. In contrast, the- 15 - concealment-based money launderi ng provision, 18 U.S.C. § 1956( a)(1)(B)(i), does. That provision, like the tax-base d money laundering provision, prohibits a defendant from conducting a financial transa ction with property known to represent the proceeds of some unlawful activity . However, unlike the tax-based money la undering provision, which requires an intent to vi olate the tax laws, the concealme nt-based money laundering provision requires the defendant know that the financial transa ction was designed in whole or in part to conceal or d isguise the nature, location, s ource, ownership, or control of the proceeds. See 18 U.S.C. § 1956(a)(1)(B)(i). Chr isty was neither indicted no r convicted of the concealment-base d money laundering provision. The jury was presented with ab undant evidence and was correctl y instructed on the law. I see no practical reason to narrow our focus to evid ence related to a particular count without acknowledging and accounting for established patt erns of behavior. I am satisfied that the jury did pre cisely what it was called upon t o do: evaluate all of the evidence and permissible infere nces as a whole in arriving at a verdict, count by count. I would affirm.