In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

CHAD GRIFFIN, MATTHEW SMITH, KELLY ISLEY, KERRI AGEE, and

NICOLE SMITH, also known as NICOLE SMITH-KELSO, 

Defendants-Appellants. 

____________________ 

Appeals from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:19-cr-00103 — Tanya Walton Pratt, Chief Judge. 

____________________ 

ARGUED FEBRUARY 16, 2023 — DECIDED AUGUST 7, 2023 

____________________ 

Before RIPPLE, SCUDDER, and ST. EVE, Circuit Judges. 

RIPPLE, Circuit Judge. A jury convicted Chad Griffin, Matthew Smith, Kelly Isley, Kerri Agee, and Nicole Smith1 (together, the “defendants”) for their roles in a scheme to 

1 Nicole Smith’s name also appears in the record as Nicole Smith-Kelso or 

Nicole Kelso. 
2 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

defraud the Small Business Administration (“SBA”). The defendants now challenge their convictions and sentences on 

multiple grounds, some of which they raise jointly and some 

of which individual defendants raise independently. 

We affirm the convictions of all five defendants. We also 

affirm the sentences of all defendants in all respects except 

one; we conclude that a clerical error in a supervised release 

condition in Mr. Griffin’s amended judgment should be corrected. We make this correction by modifying the judgment. 

I 

BACKGROUND

A 

To help small businesses access credit, the SBA provides 

guarantees on certain loans made to small businesses. Each 

guarantee represents a conditional but concrete commitment 

of government funds. To obtain an SBA guarantee, a borrower must comply with the SBA’s guidelines and requirements. The SBA, for example, has certain requirements for 

borrower eligibility and prohibits the loan proceeds from being used for various purposes.

At the center of this case are two relevant guarantee programs administered by the SBA. The first, and most common, 

guarantee program is the SBA’s standard 7(a) program. To 

apply for a 7(a) guarantee, the lender and the borrower must 

provide details about the borrower’s financial condition and 

the proposed uses of the loan proceeds. SBA loan specialists 

then review the applications for compliance with SBA rules. 

The second program involved in this case is the SBA’s Express Program, which is designed for smaller loans. Under 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 3

this program, the SBA authorizes participating banks to issue 

SBA guarantees for new loans on behalf of the SBA as long as 

relevant SBA guidelines are followed. Under this program, 

the SBA conducts little to no review of the loan or the accompanying paperwork before the loan authorization is issued. 

Notably, borrowers screened out for a 7(a) loan are not allowed to resubmit for an Express loan. 

If a borrower defaults on a loan guaranteed by the SBA, 

the lender submits a purchase request to the SBA, asking the 

SBA to purchase the outstanding balance of the defaulted 

loan. The SBA then decides whether to honor the guarantee. 

In making its decision, the SBA reviews the purchase request 

paperwork to ensure that the loan complied with SBA requirements. The SBA can decline to pay a portion of the guaranteed amount (a “repair”) or the entire guaranteed amount 

(a “denial”) if it determines that the loan was partly or wholly 

ineligible for an SBA guarantee. 

A lender can retain a lending service provider (“LSP”) to 

package, originate, disburse, service, or liquidate SBAguaranteed loans on the lender’s behalf. In carrying out any 

of these tasks, the LSP acts as the lender’s agent and represents the lender before the SBA. The five defendants in this 

case worked at, or with, Banc-Serv Partners, LLP (“BancServ”), an LSP. Ms. Agee was the founder, president, and 

chief executive officer. Ms. Isley was the chief operating officer. Ms. Smith was a relationship manager. Mr. Griffin was 

an administrative assistant, then a relationship manager, and 

then the chief marketing officer. Mr. Smith was a co-founder 

and co-owner of Banc-Serv with Ms. Agee before leaving to 

be a managing director of Bridge Business Bancorp (“BBB”), 
4 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

a lender that worked with Banc-Serv to obtain SBAguaranteed loans. 

According to the Government’s case, through their work 

with Banc-Serv, the defendants engaged in a scheme to obtain 

SBA guarantees for loans that did not meet the SBA’s guidelines and requirements. They made false statements on loanguarantee applications and purchase requests sent to the SBA 

about matters such as borrowers’ eligibility to receive a loan 

and how loan proceeds would be disbursed. For example, 

they worked to obtain SBA-guaranteed financing for uses the 

SBA deemed ineligible, such as paying off past-due payroll 

taxes and personal debt, by falsely designating the loan proceeds going to those ineligible uses as “working capital,” or 

capital to cover a business’s normal operating expenses. The 

defendants also submitted applications through the Express 

Program for loans and borrowers that the SBA previously had 

deemed ineligible. The defendants then renewed their misrepresentations in the paperwork they submitted as part of 

the purchase requests they sent to the SBA.

B 

A grand jury indicted the five defendants in connection 

with their roles in the scheme to defraud the SBA. The original 

indictment contained thirteen counts.2 The second amended 

indictment, the operative indictment in this case, contained 

2 Ms. Agee, Ms. Isley, Ms. Smith, and Mr. Griffin filed motions to dismiss 

this indictment. The district court dismissed Counts 5 and 13 as to 

Ms. Smith and Ms. Isley. The court merged Counts 7 and 8 as well as 

Counts 9 and 10. The court denied the motion to dismiss as to the remainder of the indictment. The Government then filed an unopposed motion 

to dismiss Counts 6 through 11, which the district court granted.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 5

five counts. Count 1 charged all five defendants with conspiracy to commit wire fraud affecting a financial institution, in 

violation of 18 U.S.C. § 1349. Counts 2 through 5 charged wire 

fraud affecting a financial institution, in violation of 18 U.S.C. 

§§ 1343 and 2. Counts 2 and 4 charged Ms. Agee, Ms. Isley, 

and Ms. Smith, while Counts 3 and 5 charged Ms. Agee only. 

The district court conducted an eight-day jury trial. The 

court denied the defendants’ motions for acquittal made both 

after the close of the Government’s case and after the defendants rested. The jury convicted the defendants on all counts, 

except that Mr. Smith was found guilty of only the lesser-included offense of conspiracy to commit wire fraud.

After the jury verdict, the defendants renewed their motions for judgment of acquittal. The district court denied the 

defendants’ motions. The court first concluded that acquittal 

was not warranted for Ms. Agee, Ms. Isley, Ms. Smith, or 

Mr. Griffin because, given the “lengthy trial testimony and 

the numerous exhibits,” there was “relevant evidence from 

which the jury could reasonably find each of the Defendants 

guilty beyond a reasonable doubt.”3 The court explained that 

“the evidence of a scheme to defraud the SBA (the object of 

the conspiracy) was overwhelming” because the misrepresentations in the presented loan documents “were aimed at 

acquiring the money and property of the SBA both in the form 

of the valuable guarantees as well as payment on those guarantees on the back end.”4 As part of the scheme, the defendants routinely sent interstate wire communications from 

3 R.297 at 6. 

4 Id. at 5.
6 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

Banc-Serv in Indiana to SBA offices in Virginia and California. 

The court also explained that, “[f]or most of the loans discussed at trial, a financial institution was put at a risk of loss,” 

as “[t]he parties stipulated that the banks at issue ... were all 

qualifying financial institutions” and “[t]he banks’ risk was 

clear from the testimony of the SBA witnesses and a lender 

who all said that the bank that made the loan would be the 

one that could be charged a repair or a complete denial of the 

guarantee.”5

The defendants’ communications “showed their 

understanding of the SBA’s rules and regulations and how 

they would circumvent those rules and regulations by changing information on documents to get the SBA’s approval.”6

The district court also concluded that an acquittal for 

Mr. Smith was not warranted. The court explained that the 

record was “not devoid of any evidence from which the jury 

could find” him guilty beyond a reasonable doubt of conspiracy to commit wire fraud, noting that neither it nor the jury 

was required to “examine each shred of evidence in isolation.”7

 

The Probation Office prepared a Presentence Investigation 

Report (“PSR”) for each defendant. The defendants objected 

to the increase in offense level under U.S.S.G. § 2B1.1(b)(1) 

based on loss amount. The PSRs concluded that the proper 

measure of actual loss was the amount that the SBA spent 

purchasing the outstanding balances of the fraudulent SBA5 Id. at 5–6. The parties stipulated that BBB was a lending institution but 

not a financial institution within the meaning of 18 U.S.C. § 20.

6 Id. at 6.

7 Id. at 10. 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 7

guaranteed loans on which the borrowers had defaulted. The 

defendants contended that their conduct was not the legal 

cause of the SBA’s purported loss because their actions did 

not affect the borrower’s creditworthiness or the SBA’s willingness to guarantee a loan. They also argued that the loss 

amount attributed to the defendants was incorrect under the 

government benefits rule. The defendants objected to the restitution amount on the same grounds as the loss amount. The 

defendants also objected to the application of the sophisticated means enhancement under U.S.S.G. § 2B1.1(b)(10)(C).

At each defendant’s sentencing hearing, the district court 

adopted the Probation Office’s calculation of the loss amount 

attributable to the defendant. The court determined that the 

actual loss amount for Ms. Agee, Ms. Isley, and Ms. Smith 

was $2,289,681.30 based on the involvement of each with the 

following fraudulent loans: Rodgers Finishing Tools; Rec 

Room; Larson Cement; Lithocraft #1, #2, and #3; Indiana Baseball Academy; and Touchton. The court concluded that 

Mr. Smith was responsible for $1,651,450.30 in actual loss to 

the SBA due to his involvement in the Rodgers Finishing 

Tools, Larson Cement, and Touchton loans and that Mr. Griffin was responsible for $685,022.30 due to his involvement in 

the Larson Cement and Touchton loans. The court ordered 

restitution for each defendant in accordance with the loss 

amount attributed to him or her. The court applied the sophisticated means enhancement to each defendant. The court sentenced each defendant to a term of imprisonment, plus a term 

of supervised release. The court also imposed a special assessment on each defendant and a $10,000 fine on Ms. Agee. 

Each defendant timely appealed.
8 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

II

DISCUSSION

A. Constructive Amendment of the Indictment

We first consider whether the Government constructively 

amended Count 1 of the second amended indictment at trial.8

The Fifth Amendment’s Grand Jury Clause provides that 

a defendant cannot be tried on charges that are not made in 

the indictment. See Stirone v. United States, 361 U.S. 212, 217–

18 (1960). “A constructive amendment to an indictment occurs when either the government (usually during its presentation of evidence and/or its argument), the court (usually 

through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the 

grand jury.” United States v. Rogers, 44 F.4th 728, 735 (7th Cir. 

2022) (quoting United States v. Cusimano, 148 F.3d 824, 829 (7th 

Cir. 1998)). 

Here, the defendants’ constructive amendment argument 

is predicated on a mistaken view of the governing law regarding the requisite object of the conspiracy. The defendants submit that the Government constructively amended the indictment when it “put[] on a case to prove that the Defendants 

engaged in a conspiracy, the object of which was to defraud the 

SBA,” while the “indicted offense ... was conspiracy, the 

8 Because the defendants did not raise squarely a constructive amendment 

objection in the district court, we review for plain error and “will only reverse if the constructive amendment constituted ‘a mistake so serious that 

but for it the [defendant] probably would have been acquitted.’” United 

States v. Turner, 836 F.3d 849, 864 (7th Cir. 2016) (quoting United States v. 

Cusimano, 148 F.3d 824, 828 (7th Cir. 1998)). We note, however, that we 

would reach the same result under de novo review. 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 9

object of which was to commit wire fraud affecting a financial 

institution in violation of 18 U.S.C. § 1349.”9 They argue that 

“a conspiracy, the object of which is to defraud the SBA, cannot be pursued under 18 U.S.C. § 1349” because “[t]he SBA is 

not a financial institution.”10 

We cannot accept this argument. Conspiracy to commit 

wire fraud affecting a financial institution in violation of 18 

U.S.C. § 1349 can consist of defrauding the SBA; the Government does not have to prove, as the defendants suggest, that 

the object of the conspiracy was to defraud a financial institution. The conspiracy statute, 18 U.S.C. § 1349, provides that 

the object of the conspiracy must be the commission of “any 

offense under [the relevant] chapter,” which includes wire 

fraud under § 1343. The statute of limitations for wire fraud is 

generally five years, but, if the wire fraud “affects a financial 

institution,” a ten-year statute of limitations applies. 18 U.S.C. 

§ 3293(2). We have explained that in a wire fraud case the “object of the fraud is not an element of the offense.” United States 

v. Marr, 760 F.3d 733, 743–44 (7th Cir. 2014) (quoting United 

States v. Pelullo, 964 F.2d 193, 216 (3d Cir. 1992)). Therefore, to 

convict someone of wire fraud affecting a financial institution, 

“the wire fraud statute only requires the government to prove 

that a defendant intended for his or her scheme to defraud 

someone[;] a financial institution does not need to be the intended victim.” Id. at 744; see also United States v. O’Brien, 953 

F.3d 449, 456 (7th Cir. 2020) (discussing mail fraud affecting a 

9 Appellants’ Joint Br. 23.

10 Appellants’ Joint Reply 1.
10 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

financial institution).11 For wire fraud to affect a financial institution, it simply must expose the financial institution to a 

“new or increased risk of loss.” United States v. Serpico, 320 

F.3d 691, 694–95 (7th Cir. 2003). 

At trial, the Government consistently maintained, and the 

district court consistently understood, the theory of the case 

to be that the defendants conspired to defraud the SBA by obtaining SBA guarantees for loans that did not meet the SBA’s 

requirements and that the scheme resulted in an increased 

risk of loss for the financial institutions because, if the SBA 

discovered that a loan was ineligible and denied or repaired 

the guarantee, the financial institution would bear the loss.12

11 The Supreme Court has stated that it “construe[s] identical language in 

the wire and mail fraud statutes in pari materia.” Ciminelli v. United States, 

143 S. Ct. 1121, 1126 n.2 (2023) (quoting Pasquantino v. United States, 544 

U.S. 349, 355 n.2 (2005)); see also United States v. Leahy, 464 F.3d 773, 786 

(7th Cir. 2006) (citing United States v. Stephens, 421 F.3d 503, 507 (7th Cir. 

2005)) (explaining that cases construing the mail fraud statute are equally 

applicable to the wire fraud statute).

12 See, e.g., R.189 ¶¶ 12, 26 (second amended indictment) (“If SBA rules 

were not followed, the SBA could deny the guarantee, resulting in losses 

to the lending institution. ... The Defendants ... would seek to obtain SBA 

guarantees for loans that did not meet SBA’s guidelines and requirements.”); Trial Tr. at 1587–89 (Government’s closing argument) (“[T]hese 

banks were at a risk of loss by the defendants’ fraud scheme[] because if 

the SBA uncovered the scheme and denied the guaranty, the banks would 

be on the hook for the loss to the SBA. ... So what is the fraud conspiracy 

here? ... It was the agreement to deceive the SBA in order to get the SBA 

to provide its valuable loan guaranties and pay out on those guaranties on 

the back end.”); R.297 at 5–6 (district court’s denial of motions for judgment of acquittal) (“[T]he evidence of a scheme to defraud the SBA (the 

object of the conspiracy) was overwhelming. ... The parties stipulated that 

the banks at issue ... were all qualifying financial institutions for purposes 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 11

This understanding was correct and in accordance with the 

principles we just have articulated.13 The indictment was not 

constructively amended.

B. Protectable Money or Property Interest 

The defendants also submit that they are entitled to a judgment of acquittal because the Government did not prove that 

the wire fraud scheme deprived the SBA of a protectable 

money or property interest. As they see it, the Government 

chose to pursue a “right to control” theory of money or 

of the statute criminalizing wire fraud affecting a financial institution. The 

banks’ risk was clear from the testimony of the SBA witnesses and a lender 

who all said that the bank that made the loan would be the one that could 

be charged a repair or a complete denial of the guarantee.”). 

13 We therefore also reject Ms. Isley’s contentions that the indictment 

failed to allege sufficiently, and that the Government failed to establish, 

that the defendants exposed any financial institutions to a “new or increased risk of loss.” Her theory is that, to expose a financial institution to 

a new or increased risk of loss, the defendants’ misrepresentations had to 

cause the SBA to issue “riskier” loans that were more likely to default. She 

also submits that the lenders of the underlying loans were aware of the 

defendants’ conduct. As we have explained, under the Government’s theory, the defendants’ scheme exposed financial institutions to the requisite 

new or increased risk of loss. We also reject Ms. Isley’s contention that 

Counts 3–5 of the indictment should have been dismissed because those 

counts are predicated upon requests for the SBA to honor previously issued guarantees and did not create any new or increased risk of loss for a 

financial institution, and therefore the ten-year statute of limitations for 

wire fraud affecting a financial institution should not have been applied. 

As the Government explains, “[t]he use of the wires need not be an essential element of the scheme; it is enough if the use is ‘incident to an essential 

part of the scheme’ or ‘a step in the plot.’” United States v. Sheneman, 682

F.3d 623, 629 (7th Cir. 2012) (quoting Schmuck v. United States, 489 U.S. 705, 

710–11 (1989)).
12 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

property fraud in this case—namely, “that the SBA has a 

property interest in making sure that its rules are followed.”14

We review this issue de novo. See United States v. Rivera, 901 

F.3d 896, 900 (7th Cir. 2018). 

The federal wire fraud statute, 18 U.S.C. § 1343, makes it a 

crime to use interstate wires for “any scheme or artifice to defraud, or for obtaining money or property by means of false 

or fraudulent pretenses, representations, or promises.” The 

Supreme Court has made it clear that the wire fraud statute 

“criminalize[s] only schemes to deprive people of traditional 

property interests.” Ciminelli v. United States, 143 S. Ct. 1121, 

1124 (2023) (citing Cleveland v. United States, 531 U.S. 12, 24 

(2000)); see also Kelly v. United States, 140 S. Ct. 1565, 1571–74 

(2020). A scheme to alter a regulatory decision, such as a 

scheme to obtain a state or municipal license from a government regulator or to realign access lanes to a bridge, is not one 

to appropriate the Government’s property. See Cleveland, 531 

U.S. at 20; Kelly, 140 S. Ct. at 1572. A scheme to defraud a foreign government of tax revenue, on the other hand, violates 

18 U.S.C. § 1343 because “an entitlement to collect money” is 

“‘property’ as that term ordinarily is employed.” Pasquantino 

v. United States, 544 U.S. 349, 355–56 (2005) (citing McNally v. 

United States, 483 U.S. 350, 358 (1987); Leocal v. Ashcroft, 543 

U.S. 1, 9 (2004)). 

In Ciminelli, the Supreme Court recently rejected the Second Circuit’s “right to control” theory of fraud, under which 

a defendant could commit wire fraud if “he scheme[d] to deprive the victim of potentially valuable economic information 

necessary to make discretionary economic decisions.” 143 

14 Appellants’ Joint Br. 29.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 13

S. Ct. at 1124 (quotation marks omitted).15 Specifically, the 

Court reaffirmed its earlier holdings that a successful prosecution under the wire fraud statute requires the Government 

to prove that the defendants had engaged in a deception and

that the object of their fraud was money or property. The 

right-to-control theory, held the Court, is not a sufficient substitute for money or property because, at the time of the enactment of the wire fraud statute, “[t]he so-called ‘right to 

control’ [wa]s not an interest that had ‘long been recognized 

as property.’” Id. at 1127 (quoting Carpenter v. United States, 

484 U.S. 19, 26 (1987)). 

Contrary to the defendants’ assertions, the Government 

did not pursue a right-to-control theory of fraud in this case; 

rather, the Government’s allegations focused explicitly on the 

defendants’ attempts to deprive the SBA of loan guarantees 

and the millions of dollars the SBA lost paying out on these 

loan guarantees. These allegations are explicit in the indictment,16 in the Government’s opening and closing 

15 We invited the parties to submit supplemental memoranda stating 

how, in their view, the Supreme Court’s recent decision in Ciminelli v. 

United States, 143 S. Ct. 1121 (2023), might impact our resolution of this 

issue.

16 R.189 ¶¶ 26, 27 (second amended indictment) (“The Defendants ... 

would seek to obtain SBA guarantees for loans that did not meet SBA’s 

guidelines and requirements. ... [T]he SBA incurred losses by purchasing 

loans that, had it known of the misrepresentations made in the loan files 

by the co-conspirators, it never would have guaranteed in the first place. 

... [T]he Defendants ... originated dozens of loans, totaling over $10 million in disbursements, which were not eligible for SBA guarantees.”).
14 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

statements,17 in the proof at trial,18 and in the instructions 

given to the jury by the district court.19

17 Trial Tr. at 46–47 (Government’s opening statement) (“Fraud is nothing 

more than lies that are told to separate someone from their money or property. Each of the defendants tricked the SBA into guaranteeing loans it 

never would have guaranteed had it known the truth about their lies. 

These guarantees were valuable. They were promises by the SBA to pay a 

lender for financial losses if the borrowers defaulted. ... To succeed in 

their fraud, to ensure that banks continued to hire Banc-Serv, the defendants had to deceive the SBA into paying out on those guarantees if the 

loans defaulted, and succeed they did. The SBA paid out more than $2 million in fraudulent loans that had defaulted.”); id. at 1586–89 (Government’s closing argument) (“Now, fraud, very simply, is lying to get money 

or property, like a payout on an SBA guaranty or the guaranty itself, because, as we’ll argue, the SBA guaranty itself is property. It’s the SBA’s 

right to manage its funds and guard against the risk of loss. It has a value 

all on its own. ... So what is the fraud conspiracy here? ... It was the agreement to deceive the SBA in order to get the SBA to provide its valuable 

loan guaranties and pay out on those guaranties on the back end.”). 

18 E.g., id. at 89–92 (testimony of SBA official) (explaining that “[t]he government provides a guarantee of a certain percentage, and [it] will repay 

the lender if the loan itself that they’re making defaults,” that the SBA is 

“given a budget by ... Congress ... and ... can make as many loans as ... 

covers that dollar amount,” and that the SBA has “run out of money to 

guarantee loans in a given year”). 

19 R.229-1 at 25, 31 (final jury instructions) (“A scheme to defraud is a 

scheme that is intended to deceive or cheat another and to obtain money 

or property or cause the potential loss of money or property of another by 

means of materially false or fraudulent pretenses, representations or 

promises. ... [E]vidence of th[e] various violations [of the SBA’s rules and 

regulations] does not necessarily mean that a crime has been committed, 

but that same evidence may or may not be relevant in determining a Defendant’s state of mind, and whether a Defendant acted with intent to defraud.”). 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 15

The defendants latch onto some language in the Government’s case, such as the Government’s statement during closing arguments that the SBA guarantee is “the SBA’s right to 

manage its funds and guard against the risk of loss.”20 Nevertheless, a fair reading of the record makes clear that the Government’s case is grounded in the defendants’ use of false representations to obtain loan guarantees from the SBA that 

would not have been granted if the true facts had been made 

known. These guarantees, that committed the SBA to stand 

behind a significant portion of the loan amount in case of default, are most certainly “property” as required by the wire 

fraud statute. See, e.g., Pasquantino, 544 U.S. at 356 (“The right 

to be paid money has long been thought to be a species of 

property.”); United States v. Leahy, 464 F.3d 773, 787–88 (7th 

Cir. 2006) (concluding that defendants’ scheme, which caused 

Chicago to hire fraudulently certified contractors it would not 

otherwise have hired, “precisely and directly targeted Chicago’s coffers and its position as a contracting party”). 

Ms. Isley, relying on United States v. Kelerchian, 937 F.3d 

895 (7th Cir. 2019), additionally submits that the scheme, as 

alleged in the indictment and proved at trial, is outside the 

scope of the wire fraud statute because none of the defendants’ fraudulent statements went to “essential elements” of 

the loan transactions, which she understands to be the creditworthiness or repayment ability of the borrowers. In Kelerchian, in relevant part, we considered whether submitting 

fraudulent statements to a machinegun manufacturer to obtain machineguns for private individuals, in violation of federal law, amounted to the deprivation of a property interest, 

20 Trial Tr. at 1586.
16 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

as required for wire fraud. See id. at 909 (citing Cleveland, 531 

U.S. at 19). We concluded that it did, explaining that the defendant’s “fraud deprived [the manufacturer] of a cognizable 

property interest in avoiding illegal sales of its products.” Id. 

at 914. We emphasized that we decided only the issue that 

was before us, “focused on illegal imports of highly regulated 

and dangerous machineguns,” and merely noted that 

“schemes to defraud a party into entering a contract it would 

not enter if it had been told the truth, but where fraudsters 

deliver the agreed money, goods, or services are close to the 

edge of the reach of the wire and mail fraud statutes.” Id. at 

913. Whatever the fate of Kelerchian after Ciminelli, we have an 

entirely different situation before us. As we already have explained, the Government’s theory of this case was that the defendants’ scheme deprived the SBA of property in the form of 

valuable loan guarantees that it otherwise would not have 

granted or paid out on. 

C. Jury Instructions

We now turn to the jury instructions. Ms. Agee first submits that the district court erred in declining to give her proposed jury instruction regarding ambiguity in the SBA’s 

rules. We review a district court’s denial of a defendant’s requested jury instruction de novo. See United States v. Lomax, 

816 F.3d 468, 475–76 (7th Cir. 2016). A defendant is entitled to 

a jury instruction that encompasses her theory of defense only 

if: “(1) the instruction represents an accurate statement of the 

law; (2) the instruction reflects a theory that is supported by 

the evidence; (3) the instruction reflects a theory which is not 

already part of the charge; and (4) the failure to include the 

instruction would deny the [defendant] a fair trial.” United 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 17

States v. Walker, 746 F.3d 300, 307 (7th Cir. 2014) (quoting 

United States v. Swanquist, 161 F.3d 1064, 1075 (7th Cir. 1998)). 

Ms. Agee proposed a jury instruction regarding ambiguity, which stated, in relevant part: 

You may find that ambiguity exists in Small 

Business Administration operating procedures 

and permitted uses of loan proceeds. If you find 

that ambiguity exists in the SBA protocols communicated and available to the defendant, then 

to prove that she conspired to defraud the 

agency, the government must prove beyond a

reasonable doubt that there is no reasonable interpretation of the situation that would make 

the defendant’s representations a good-faith effort to comply.21

The district court declined to give the instruction because it 

concluded that there was no evidence of ambiguity with respect to any regulation, rule, or law. Ms. Agee now submits 

that she was denied a fair trial because the district court “invaded the province of the jury” when it found that there was 

no evidence of ambiguity in any relevant rule or law.22 In her 

view, there was evidence that the SBA’s rules on “bridge” or 

“piggyback” loans were ambiguous. 

We agree with the Government that the good faith instruction given by the district court adequately captured the theory 

21 R.163 at 34. 

22 Agee’s Br. 10. 
18 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

of defense reflected in Ms. Agee’s proposed ambiguity instruction—that is, that she did not have the requisite intent to 

defraud because she acted in compliance with a reasonable 

interpretation of the SBA’s rules. The district court’s good 

faith instruction stated, in relevant part: 

If a defendant acted in good faith, then the 

defendant lacked the intent to defraud required 

to prove the offenses of all counts charged in 

Counts 1 through 5. ...

A defendant acted in good faith if, at the 

time, the defendant honestly believed the truthfulness or validity of the statements or omissions that the government has charged as being 

false or fraudulent. 

A defendant does not have to prove his good 

faith; rather, the government must prove beyond a reasonable doubt that the defendant 

acted with the intent to defraud as charged in 

Counts 1 through 5.23 

Contrary to Ms. Agee’s assertion, this instruction properly allocated the burden of proof; it did not place the burden on the 

defendant to produce evidence of good faith. Furthermore, 

the district court’s declining to give Ms. Agee’s proposed ambiguity instruction did not deny her a fair trial. The district 

court properly instructed the jury on each of the elements necessary to convict Ms. Agee of each charge. And, as the Government notes, Ms. Agee did argue at trial that she believed 

that she was acting in compliance with a “reasonable 

23 R.229-1 at 32.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 19

interpretation” of the SBA’s rules.24 The district court did not 

err in declining to give the proposed ambiguity instruction. 

Cf. United States v. Choiniere, 517 F.3d 967, 970–72 (7th Cir. 

2008) (concluding that the district court did not err in declining to give a proposed jury instruction regarding the requirements of specific regulations because the instructions the jury 

received contained the defendant’s theory that he did not 

have the intent to defraud and because the defendant presented evidence, and made arguments during closing argument, regarding his intended compliance with the regulations).

Ms. Agee also submits that her convictions on Counts 2 

through 5 should be vacated because the district court’s issuance of a Pinkerton instruction projected the “error” in the conspiracy charge (an error caused, she submits, by the Government’s constructive amendment of the indictment and the 

district court’s failure to give her ambiguity instruction) onto 

Counts 2 through 5.25 She did not object to the Pinkerton instruction at trial, so we review only for plain error. See United 

States v. Lawson, 810 F.3d 1032, 1040 (7th Cir. 2016). Because 

there was no constructive amendment of the indictment and 

no error in declining to give the ambiguity instruction, there 

24 See, e.g., Trial Tr. at 1648–49.

25 Pinkerton v. United States, 328 U.S. 640, 647–48 (1946), holds that a person is liable for an offense committed by a coconspirator when its commission is reasonably foreseeable to that person and is in furtherance of 

the conspiracy. 
20 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

also was no error, much less plain error, in the district court’s 

issuance of a Pinkerton instruction.

D. Sufficiency of the Evidence

Mr. Griffin and Mr. Smith each contend that they are entitled to a judgment of acquittal because there is insufficient evidence that they knowingly joined the conspiracy. We review 

the denial of a motion for judgment of acquittal de novo and 

“construe the evidence in the light most favorable to the government.” United States v. Weimert, 819 F.3d 351, 354 (7th Cir. 

2016). Our inquiry is whether a rational trier of fact could 

have found the elements of the crime beyond a reasonable 

doubt. See id.26 We “will not reweigh the evidence or invade 

the jury’s province of assessing credibility and will overturn 

the verdict only if the record contains no evidence, regardless 

of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” Rivera, 901 F.3d at 900–01 (cleaned 

up) (quoting United States v. Peterson, 823 F.3d 1113, 1120 (7th 

Cir. 2016)). Although we have described the defendant’s burden as a “nearly insurmountable hurdle,” we also have noted 

that “the height of the hurdle the defendant must overcome 

depends directly on the strength of the government’s evidence.” United States v. Vizcarra-Millan, 15 F.4th 473, 506 (7th 

Cir. 2021) (quoting United States v. Johnson, 874 F.3d 990, 998 

26 See also Jackson v. Virginia, 443 U.S. 307, 318–19 (1979) (“[T]he critical 

inquiry on review of the sufficiency of the evidence to support a criminal 

conviction must be ... to determine whether the record evidence could 

reasonably support a finding of guilt beyond a reasonable doubt. ... [T]he 

relevant question is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” (footnote 

omitted)).
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 21

(7th Cir. 2017)) (citing United States v. Garcia, 919 F.3d 489, 

496–97 (7th Cir. 2019)). 

We begin with the elements of the offense. To prove conspiracy in violation of 18 U.S.C. § 1349, the Government must 

prove that “(1) two or more people agreed to commit an unlawful act, and (2) the defendant on trial knowingly and intentionally joined in the agreement.” United States v. Avila, 557 

F.3d 809, 814 (7th Cir. 2009). A conspiracy does not exist 

“when each of the conspirators’ agreements has its own end, 

and each constitutes an end in itself.” Id. (quoting United 

States v. Sababu, 891 F.2d 1308, 1322 (7th Cir. 1989)). “[F]or a 

single, overarching conspiracy to exist,” the participants 

“must have been aware of each other and must do something 

in furtherance of some single, illegal enterprise.” Id. (quoting 

United States v. Bustamante, 493 F.3d 879 (7th Cir. 2007), overruled on other grounds by United States v. Tinsley, 62 F.4th 376 

(7th Cir. 2023)). We have explained that “a tacit agreement 

may support a conspiracy conviction.” United States v. Handlin, 366 F.3d 584, 589 (7th Cir. 2004). Furthermore, an “agreement may be proved by circumstantial evidence,” and “[s]uch 

evidence may be aimed at showing that the co-conspirators 

embraced the criminal objective of the conspiracy, the conspiracy continued onward towards its common goal, there 

were prolonged and/or cooperative relationships, or the various transactions followed a similar sequence of events.” Id. at 

589–90 (citations omitted). 

We now turn to the evidence the Government presented 

against Mr. Griffin and Mr. Smith at trial. The Government 

presented evidence showing that Mr. Griffin and Mr. Smith 

knew the nature of the scheme to defraud the SBA. Although 

the Advance Pharmaceutical loan did not reach the SBA 
22 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

application stage, the plan was that BBB would issue a loan to 

pay debt owed to the Department of Justice and the BBB loan 

would be paid back with proceeds from an SBA-guaranteed 

loan. A BBB memorandum shows that Mr. Smith approved 

the loan, to be used to pay off the Department of Justice debt, 

for underwriting by BBB. In an email to Mr. Smith, copying 

Mr. Griffin, Ms. Isley noted that the SBA had said that “it 

would be a no-no for one federal agency to guaranty a loan to 

pay a fine levied by another federal agency”; “the only way 

around this,” she continued, was for BBB “to do an interim 

note and state it [wa]s for working capital.”27 She explained 

that they would “have to tell [the] SBA what the funds were 

used for” and therefore warned that they could “not state anywhere in [their] note it [wa]s for the payment of a government agency fine.”28 Furthermore, when the SBA denied 

Banc-Serv’s request for additional working capital on the Hefner Financial loan because it realized the funds would be used 

to pay debt that was ineligible for SBA assistance, Ms. Agee 

forwarded the SBA’s letter, copying Mr. Griffin, and wrote: 

“They got us ....”29

The Government also presented evidence showing the involvement of both Mr. Griffin and Mr. Smith in the scheme to 

disguise the payment of back taxes as working capital for the 

Larson Cement loan. Ms. Agee copied both Mr. Griffin and 

Mr. Smith on an email in which she explained that they could 

27 R.423-17 at 1.

28 Id. 

29 R.423-21 at 1, 3.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 23

“not show [they we]re paying past due taxes” and so the 

funds “would have to be categorized as working capital” and 

they “would have to justify what the eligibility of this much

working capital would be used for.”30 Ms. Agee, copying 

Mr. Griffin, then indicated that she would review the loan paperwork “with Chad [Griffin] when he return[ed].”31

Mr. Griffin, copying Mr. Smith, then sent an email stating that 

they needed “the use of proceeds in the write-up to say the 

funds that w[ould] be used to pay the Accrued Liabilities 

(Payroll Taxes) [we]re for working capital” because the SBA 

would not allow the payment of “back taxes with loan proceeds” and the SBA would “trace this back to the tax returns.”32 After the lender requested that Banc-Serv set aside 

the SBA application until further notice because the IRS had 

filed a lien, Ms. Agee emailed Mr. Griffin, copying Mr. Smith, 

and stated that, “[p]er Matt [Smith],” they were “going to 

move forward with the current SBA application as is and try 

to do everything simultaneously.”33 Mr. Smith’s signature 

also appears on two letters to the SBA and two SBA loan application documents in connection with the Larson Cement 

loan, although there is evidence suggesting that Ms. Agee 

signed his name on some of these documents. The SBA faxed 

the loan authorization to Mr. Smith at BBB. 

30 R.432-8 at 2.

31 Id. at 1.

32 R.424-1 at 1.

33 R.424-2 at 1.
24 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

The Government also presented evidence connecting 

Mr. Griffin and Mr. Smith to the plan to disguise the fact that 

Touchton loan proceeds would be used to pay past-due federal payroll taxes. A BBB memorandum, which noted that the 

loan would be used to pay off the taxes, indicated that 

Mr. Smith approved the loan for underwriting by BBB. After 

Mr. Griffin emailed the loan application to the SBA, the SBA 

sent him a screen-out letter, stating that it was unable to process the loan application because “SBA loan proceeds [cannot] 

be used to pay past-due Federal and state payroll taxes.”34 The 

letter requested “proof that a repayment plan with the IRS 

ha[d] been made and source and terms of funds that w[ould]

be used to pay the past-due payroll tax.”35 Mr. Griffin responded that “[t]he past due taxes w[ould] be paid with proceeds from the Line of Credit provided by Bridge Business

Bancorp” and that the taxes “should not have been part of the 

SBA use of proceeds.”36 The SBA sent the loan authorization 

for the Touchton loan to Mr. Griffin. Emails from Ridgestone 

Bank, which Ms. Agee forwarded to Mr. Griffin, stated that 

Ridgestone needed BBB “to provide an interim loan ... to pay 

off delinquent taxes from Touchton Industries” and that 

Ridgestone would “pay off the interim loan from SBA proceeds, once [it] receive[d] evidence from the proper taxing 

34 See R.425-28; R.425-29 at 3. 

35 R.425-29 at 3.

36 Id. at 1.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 25

authority that the delinquent taxes ha[d] been paid.”37 Ridgestone noted that this was a “requisite from the SBA” and that 

they did “not want to jeopardize the authorization.”38 Approximately two weeks later, Mr. Smith sent an email to 

Ridgestone in which he proposed using a BBB loan to pay off

the IRS and “Ridgestone Bank, would then, (so long as they 

ha[d] received the stamped letter from the IRS, acknowledging that the IRS ha[d] received the $157,366.72), on the next 

business day, close the ... SBA Loan, and pay down the” BBB 

loan.39 In that email, he stated that he was copying Ms. Agee 

for Banc-Serv’s “concurrence on the structure of the closing as 

it relates to compliance with the SBA Authorization.”40 Ridgestone responded and asked whether the proposed plan “follow[ed] the terms of the SBA authorization” and what “the 

use of proceeds in the authorization” was.41 Ms. Agee responded to Mr. Smith and Ridgestone, copying Mr. Griffin, 

that the SBA use of proceeds provided for “working capital 

which c[ould] payoff Bridge,” among other costs.42

The Government also presented evidence of Mr. Smith’s 

participation in fraud with respect to the Rodgers Finishing 

Tools loan. The Government presented the testimony of 

37 R.425-17 at 1.

38 Id.

39 R.425-18 at 2.

40 Id. at 2–3.

41 Id. at 2.

42 Id. at 1.
26 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

Bradley Crawford, who sought an SBA-guaranteed loan to 

purchase the Rodgers Finishing Tools business. To obtain the 

loan, the SBA required him to inject at least $50,000 into the 

business as equity capital. Crawford, however, did not have 

the necessary $50,000. He testified that, on a phone call with 

Ms. Agee and Mr. Smith, who was still at Banc-Serv at that 

time, he was instructed to bring a $50,000 personal check to 

the loan closing, which would be reimbursed from the working capital portion of the loan upon close. Although Crawford 

testified that “Kerri [Agee] was the majority of the conversation” and he could not recall anything specific that Mr. Smith 

said during the phone conversation, he was clear that “[b]oth 

talked,” estimating that Mr. Smith was responsible for twenty 

percent of the conversation.43 

Given the evidence the Government presented at trial, we 

conclude that neither Mr. Griffin nor Mr. Smith is entitled to 

a judgment of acquittal. The Government presented sufficient 

evidence, viewed as a whole and in the light most favorable 

to the Government, from which a rational juror could conclude beyond a reasonable doubt that both Mr. Griffin and 

Mr. Smith knowingly joined the conspiracy. Although the evidence is not overwhelming with respect to Mr. Smith,44 a juror could conclude, based on the evidence in the record, that 

Mr. Smith, with knowledge of the scheme to defraud, participated in moving the loan transactions forward. 

43 Trial Tr. at 994–95, 1050–52.

44 We are mindful of the role that Mr. Smith appears to have played in 

this scheme. Although Mr. Smith was not employed at Banc-Serv during 

much of the conduct at issue in this case, he facilitated the fraudulent 

transactions in his role as a lender working with Banc-Serv. 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 27

E. Sentencing Arguments

Finally, we turn to the defendants’ sentencing arguments. 

They contend that the district court erred in calculating the 

loss amount for purposes of the loss enhancement under 

U.S.S.G. § 2B1.1(b), in calculating restitution, in applying the 

sophisticated means enhancement to Mr. Griffin and 

Mr. Smith, and in imposing a condition of supervised release 

on Mr. Griffin in the amended final judgment that is different 

than the condition announced at his sentencing hearing. We 

consider each contention in turn.

i. Loss Amount

The defendants submit that the district court should not 

have applied a loss enhancement under U.S.S.G. § 2B1.1(b) in 

connection with the Touchton, Larson Cement, Rodgers Finishing Tools, Lithocraft #2, and Lithocraft #3 loans because the 

Government failed to prove that the defendants had caused 

the SBA’s actual loss on those loans. We review legal interpretations of the Sentencing Guidelines de novo and factual findings as to loss amount for clear error. See United States v. 

Moose, 893 F.3d 951, 954 (7th Cir. 2018) (citing United States v. 

White, 883 F.3d 983, 986 (7th Cir. 2018)). The Government has 

the burden of proving the amount of loss by a preponderance 

of the evidence. See United States v. Williams, 892 F.3d 242, 250 

(7th Cir. 2018) (quoting United States v. Johns, 686 F.3d 438, 454 

(7th Cir. 2012)). “When calculating the loss for purposes of 

sentencing, the district court is only required to make ‘a reasonable estimate of the loss.’” United States v. Love, 680 F.3d 

994, 999 (7th Cir. 2012) (quoting United States v. Green, 648 F.3d 

569, 583 (7th Cir. 2011)). 
28 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

The Sentencing Guidelines provide that, for fraud crimes, 

a defendant’s offense level should be increased according to 

the amount of “loss” resulting from the offense. See U.S.S.G. 

§ 2B1.1(b). “Loss” is the “greater of actual loss or intended 

loss.” Id. § 2B1.1 cmt. n.3(A). “Actual loss,” which the district 

court employed in this case, is “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. § 2B1.1 cmt. 

n.3(A)(i). Pecuniary harm is “reasonably foreseeable” if “the 

defendant knew or, under the circumstances, reasonably 

should have known,” that it “was a potential result of the offense.” Id. § 2B1.1 cmt. n.3(A)(iv). We have explained that, in 

the determination of loss amount, “[c]ausation includes two 

distinct principles, cause in fact, commonly known as ‘but for’ 

causation, and legal causation.” United States v. Whiting, 471 

F.3d 792, 802 (7th Cir. 2006). 

The defendants first contend that their conduct did not 

cause the SBA’s loss because their misrepresentations did not 

“skew the SBA’s credit evaluation” of the loans.45 In the 

45 Appellants’ Joint Br. 35. The defendants submit that our recent decision 

in United States ex. rel. Calderon v. Carrington Mortgage Services, LLC, 70 

F.4th 968 (7th Cir. 2023), supports their actual loss arguments. In Calderon, 

we affirmed a grant of summary judgment for a defendant sued under the 

False Claims Act because the plaintiff had not presented evidence from 

which a jury could conclude that the defendant’s misrepresentations regarding certifications of residential mortgage loans for insurance coverage 

caused the subsequent defaults of the loans. Id. at 981. (The plaintiff had 

abandoned reliance on any other basis for establishing causation.) In 

reaching that conclusion, we relied on our decision in United States v. Luce, 

873 F.3d 999, 1014 (7th Cir. 2017), which in turn had followed United States 

v. Miller, 645 F.2d 473 (5th Cir. 1981), and United States v. Hibbs, 568 F.2d 

347 (3d Cir. 1977). We stressed throughout Luce that we were dealing with 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 29

defendants’ view, the Government was required to prove that 

it was reasonably foreseeable that the defendants’ misrepresentations would increase the “riskiness,” or the likelihood of 

default, of the loans. Without evidence that the defendants violated a rule related to borrower creditworthiness, the defendants continue, the Government cannot show that it was 

reasonably foreseeable to any defendant that a particular misrepresentation on an application caused the SBA to take on 

excess risk.

The district court did not err in determining the loss 

amounts caused by the defendants’ fraud. The defendants 

present an artificially narrow theory of causation. The SBA 

provides loan guarantees to borrowers who cannot obtain traditional financing because banks consider them “risky”; in 

light of this risk, the SBA demands that these borrowers meet 

certain requirements in order to be eligible to obtain a guarantee. At sentencing, the district court, accepting the Government’s position, found that all of the loans included in the loss 

amount, with the exception of the Indiana Baseball Academy 

loan, would have been ineligible for any SBA guarantees 

without the defendants’ fraudulent misrepresentations.46 For 

example, an SBA official testified that a $50,000 equity injection was a threshold requirement to receive the $1.4 million 

SBA-guaranteed loan used to purchase the Rodgers Finishing 

Tools business; the defendants hid from the SBA that the borrower did not have $50,000 to contribute. The defendants also 

hid that Larson Cement and Touchton had past-due payroll 

the language of the False Claims Act. Calderon is therefore hardly on point 

because it deals specifically with the language of the False Claims Act.

46 See Isley’s Sentencing Tr. at 14–17.
30 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

taxes, which, without a payment plan with the IRS, disqualified them from receiving any SBA guarantee. The court therefore concluded that the defendants’ fraud caused the loss that 

the SBA suffered when it purchased the outstanding balance 

on each of the loans that was in fact ineligible for any SBA 

guarantee.47 As the court explained, the Government’s theory 

at trial and the “evidence presented to the jury was that BancServ, through fraudulent and fictitious means, secured SBA 

loans for certain borrowers who were ineligible for any SBAguaranteed loan and that the SBA would not have paid out 

the guarantees at all but for the defendant[s’] fraud.”48 It also 

was reasonably foreseeable to the defendants that, as a result 

47 The district court’s explanation of the loss amount echoes that of the 

Probation Office. In response to the defendants’ objection to the loss 

amount in the PSRs, the Probation Office stated that the “funds obtained 

by the borrowers” were secured “through the fraudulent packaging and 

servicing of the loans by these defendants.” R.302 at 33; R.312 at 34; R.314 

at 36; R.316 at 34; R.320 at 42. Furthermore, “the defendants packaged and 

serviced loan applications with the knowledge” that the borrowers “could 

not obtain an SBA loan by legal standards” and, therefore, they secured 

these loans although they “knew the risks of their fraudulent activities and 

were aware of the likelihood these borrowers could default.” R.302 at 33; 

R.312 at 34; R.314 at 36; R.316 at 34; R.320 at 42. The Probation Office stated 

that “these borrowers never would have been granted an SBA loan” had 

the defendants “not fraudulently and illegitimately altered applications.” 

R.302 at 33; R.312 at 34; R.314 at 36; R.316 at 34; R.320 at 42. At the defendants’ sentencing hearings, the district court adopted the Probation Office’s 

calculation of the loss amount and concluded that the Government had 

proven the loss amount by a preponderance of the evidence.

48 Isley’s Sentencing Tr. at 14; see also Agee’s Sentencing Tr. at 8; 

M. Smith’s Sentencing Tr. at 15; Griffin’s Sentencing Tr. at 14. 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 31

of their fraudulent conduct, the SBA would pay out on these 

ineligible loans. As the district court noted, the defendants 

“knew the risks of their fraudulent activities and were aware 

of the likelihood that these SBA-ineligible borrowers might 

default, yet they lied and, through fraudulent actions, secured 

these fraudulent loans regardless.”49

The district court recognized that the posture of the Indiana Baseball Academy loan was different than the other loans 

included in the loss amount calculation because, although Indiana Baseball Academy diverted loan proceeds to an improper use, that diversion did not affect the basic eligibility of 

Indiana Baseball Academy to receive an SBA-guaranteed 

loan.50 With respect to that loan, the defendants disguised that 

the borrower would divert approximately $108,000 of the 

$350,000 loan to pay off student loans by labeling the funds as 

“working capital” at the application stage. They then renewed 

this lie to the SBA, insisting that the funds had not been used 

to pay student loans, so that the SBA would purchase the entire outstanding balance of the loan. The district court accepted the Government’s position that it was reasonably foreseeable that the diversion of almost one-third of the loan proceeds from the funding of the day-to-day operations of the 

business to the payment of unrelated student loans would 

49 M. Smith’s Sentencing Tr. at 15; see also Isley’s Sentencing Tr. at 15; Griffin’s Sentencing Tr. at 14.

50 The Indiana Baseball Academy loan was included in the loss amounts 

for Ms. Agee, Ms. Isley, and Ms. Smith.
32 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

lead to the business defaulting on the loan.51 The defendants 

therefore were responsible for the SBA’s total loss in connection with this loan. The district court did not clearly err in concluding that the defendants’ fraudulent conduct caused the 

loss that the SBA suffered by purchasing the outstanding balance on any of these loans.52 

The defendants further submit that the Government presented no evidence connecting Lithocraft loans #2 and #3 to 

the defendants’ scheme to defraud the SBA. “A loss determination must be based on the conduct of conviction and relevant conduct that is criminal or unlawful, and the 

51 See Isley’s Sentencing Tr. at 10–11, 16.

52 Cf. United States v. Dehaan, 896 F.3d 798, 807–08 (7th Cir. 2018) (finding 

no plain error where the district court calculated the loss amount resulting 

from the defendant’s fraudulent certification of patients as homebound to 

be the entire amount Medicare paid for those ineligible recipients because 

“[a]bsent a proper certification, a patient is not eligible for [home health] 

services ... whether he is actually homebound or not” and so “one may 

see the entire amount paid by Medicare for services to these patients as a 

loss even if, in theory, some number of these patients were in fact homebound and could therefore have qualified for home services had they been 

certified as homebound in good faith by an honest physician”); United 

States v. Kosth, 257 F.3d 712, 722 (7th Cir. 2001) (concluding under U.S.S.G. 

§ 2F1.1(b), which was consolidated with § 2B1.1 in 2001, that, for a defendant who was convicted of making false statements in connection with 

loans from the SBA, the district court did not clearly err in applying a loss 

amount that reflected the amount the defendant “received or had commitments to receive ... from the SBA when all was said and done”); United 

States v. Morris, 80 F.3d 1151, 1171–74 (7th Cir. 1996) (concluding, under 

U.S.S.G. § 2F1.1(b), that, even if the defendants’ conduct did not cause a 

bank’s ultimate demise, the defendants’ fraudulent conduct facilitated the 

bank’s offering of subordinated capital notes and caused investors to put 

at risk the full value of their investments).
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 33

government must demonstrate by a preponderance of the evidence that the loss amount is attributable to that criminal or 

unlawful conduct.” United States v. Orillo, 733 F.3d 241, 244 

(7th Cir. 2013) (citing United States v. Littrice, 666 F.3d 1053, 

1060 (7th Cir. 2012)). As the PSRs detailed and the district 

court noted at sentencing, the Government presented evidence that, when a Banc-Serv employee in the process of liquidating all three Lithocraft loans discovered that the 

Lithocraft “file [wa]s missing the [required] environmental 

assessment,” Ms. Isley directed the employee to ask the bank 

involved to complete a backdated environmental assessment 

so that the SBA would not charge a repair fee.53 The district 

court did not clearly err in including Lithocraft loans #2 and 

#3 in the loss amount.

As an alternative basis on which to challenge the loss 

amount,54 the defendants submit that the district court erred 

53 R.424-24 at 1–2.

54 The defendants also submit that the district court erred in including 

certain guarantee fees and interest amounts in the loss amount. They note 

that, under U.S.S.G. § 2B1.1 cmt. n.3(D)(i), “[l]oss shall not include ... 

[i]nterest of any kind, finance charges, late fees, penalties, amounts based 

on an agreed-upon return or rate of return, or other similar costs.” They 

concede, however, that any changes in loss amount caused by these alleged errors alone would not result in any change in any defendant’s 

Guidelines range. Therefore, because we conclude that there were no 

other errors with respect to any defendant’s loss amount, we need not consider whether the district court erred by including guarantee fees and interest amounts in the loss amount. See, e.g., United States v. Klund, 59 F.4th 

322, 329 (7th Cir. 2023) (concluding that we did not need to address 

whether the district court erred in failing to offset the value of certain 

goods in its calculation of the defendant’s intended loss amount because 

the offset “would not affect his guidelines range”). We consider their 
34 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

in its calculation of loss because it did not apply the government benefits rule properly. The “government benefits rule” 

in the Sentencing Guidelines provides:

In a case involving government benefits (e.g., 

grants, loans, entitlement program payments), 

loss shall be considered to be not less than the 

value of the benefits obtained by unintended recipients or diverted to unintended uses, as the 

case may be. For example, if the defendant was 

the intended recipient of food stamps having a 

value of $100 but fraudulently received food 

stamps having a value of $150, loss is $50. 

U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). The defendants contend that, 

under the government benefits rule, the actual loss amounts 

for the Touchton, Rodgers Finishing Tools, and Indiana Baseball Academy loans should be only the amount of the loan 

proceeds that were used for an improper purpose. Their argument is based on their belief that the SBA would have repaired, rather than denied, these loans had the disclosures 

been accurate because, according to the testimony of an SBA 

official, “a denial is for loans that are not eligible or if the fraud 

caused a complete harm on the loan.”55 

As we already have explained, however, the district court 

found that all of the loans included in the loss amount fell into 

one of the two categories of loans that the defendants admit 

contentions regarding these calculation errors with respect to restitution, 

infra. 

55 Appellants’ Joint Br. 45 (citing Trial Tr. 1194–95). 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 35

the SBA would have denied. The court concluded that, with 

the exception of Indiana Baseball Academy, the loans that the 

SBA purchased were ineligible for any amount of SBA guarantee.56 And, with respect to Indiana Baseball Academy, the 

defendants intentionally disguised the diversion of one-third 

of the loan proceeds from business uses, which, the district 

court accepted, caused the entire loan to default shortly thereafter. The district court did not clearly err in these conclusions. We therefore reject the defendants’ government benefits rule argument.

ii. Restitution

The defendants also contend that the district court erred 

in calculating and ordering restitution.57 We review the calculation of restitution for abuse of discretion, viewing the evidence in the light most favorable to the Government. United 

56 As the district court noted, our decision in United States v. Leahy, 464 

F.3d 773 (7th Cir. 2006), is instructive. There, the defendant had engaged 

in a scheme to cheat the City of Chicago out of funds slotted for minorityand women-owned businesses. We concluded, in relevant part, that an 

earlier version of the government benefits rule—stating that “[i]n a case 

involving diversion of government program benefits, loss is the value of 

the benefits diverted from intended recipients or uses”— applied. See id.

at 790. We explained that, under that rule, the loss amount should have 

been the total value of the benefits diverted from intended recipients or 

uses, not the “contract price minus the benefit provided.” Id. As in Leahy, 

the government funds in this case were diverted to improper recipients; 

the loans that the SBA purchased were ineligible for any amount of SBA 

guarantee.

57 The defendants submit that any change in the actual loss calculation 

also must be applied to restitution. Because we reject the defendants’ arguments for a change in the actual loss calculation, we also reject their 

argument requesting a change in the restitution amount on this basis. 
36 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

States v. Robl, 8 F.4th 515, 527 (7th Cir. 2021). We “will only 

upset an order of restitution ‘if the district court used inappropriate factors or did not exercise discretion at all.’” United 

States v. Stein, 756 F.3d 1027, 1029 (7th Cir. 2014) (quoting 

United States v. Frith, 461 F.3d 914, 919 (7th Cir. 2006)). Where 

a defendant failed to raise a specific argument regarding a restitution award in the district court, we employ plain-error review. See Walker, 746 F.3d at 308 (citing United States v. Berkowitz, 732 F.3d 850, 852 (7th Cir. 2013)). 

The Mandatory Victim Restitution Act (“MVRA”) requires the defendants to “make restitution to the victim of the 

offense.” See 18 U.S.C. § 3663A(a)(1). “[T]he primary and 

overarching purpose of the MVRA is to make victims of crime 

whole, to fully compensate these victims for their losses and 

to restore these victims to their original state of well-being.” 

United States v. Robers, 698 F.3d 937, 943 (7th Cir. 2012) 

(cleaned up) (quoting United States v. Boccagna, 450 F.3d 107, 

115 (2d Cir. 2006)). The MVRA defines a “victim” as “a person 

directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.” 

18 U.S.C. § 3663A(a)(2). We have explained that the “MVRA 

has a proximate cause requirement” and a district court’s failure to “address proximate causation during sentencing,” at 

least where “there is no way of knowing if [the defendant] 

caused the victims’ full loss,” affects the defendant’s “substantial rights.” United States v. Burns, 843 F.3d 679, 689 (7th 

Cir. 2016). 

The MVRA “applies to a victim’s losses from the offense 

of conviction, which is narrower than relevant conduct under 

the Guidelines” for loss amount. White, 883 F.3d at 992. In 

other words, “[r]estitution is ‘limited to the actual losses 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 37

caused by the specific conduct underlying the offense.’” 

United States v. Meza, 983 F.3d 908, 918 (7th Cir. 2020) (quoting 

Orillo, 733 F.3d at 244). When the offense “involves as an element a scheme, conspiracy, or pattern of criminal activity,” a 

court should order restitution for “any person directly 

harmed by the defendant’s criminal conduct in the course of 

the scheme, conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2). 

Therefore, “[a]s long as the [sentencing] court can adequately 

demarcate the scheme, it can order restitution for any victim 

harmed by the defendant’s conduct during the course of that 

scheme.” United States v. Smith, 218 F.3d 777, 784 (7th Cir. 

2000). Because “the crime comprehended by the mail and 

wire fraud statutes is the scheme to defraud, not just the isolated iterations of wire transmissions or mailings, ... restitution for victims of the overall scheme is required.” Meza, 983 

F.3d at 918 (quoting United States v. Locke, 643 F.3d 235, 247 

(7th Cir. 2011)). 

The Government must establish the restitution amount by 

a preponderance of the evidence. See Robl, 8 F.4th at 527. “A 

court may rely on the information provided in the presentence report ‘so long as it is well supported and appears reliable.’” Id. at 529 (quoting United States v. Scalzo, 764 F.3d 739, 

745 (7th Cir. 2014)). “A defendant bears the burden of showing that the [presentence report] is inaccurate or unreliable, 

and a simple denial of its accuracy does not discharge this 

burden.” Id. “If the defendant is able to create ‘real doubt as 

to the information’s reliability,’ the burden shifts to the government to demonstrate the accuracy of the presentence report’s restitution information.” Id.

In this appeal, the defendants submit, for the first time, 

that the district court should not have included the Larson 
38 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

Cement loan in the calculation of the restitution amount because that loan did not affect a financial institution. In the Larson transaction, the defendants disguised the payment of 

past-due payroll taxes as “working capital.” The district court 

did not plainly err in concluding that the defendants’ misrepresentations in connection with the Larson loan were part of 

their overall scheme to obtain SBA guarantees for loans that 

did not meet the SBA’s guidelines and requirements. Cf. 

United States v. Peugh, 675 F.3d 736, 742 (7th Cir. 2012), rev’d 

on other grounds, 569 U.S. 530 (2013), opinion reinstated in part, 

527 F. App’x 554 (7th Cir. 2013) (“When a ‘scheme’ is an element of the offense of conviction—as it is in bank fraud, see 18 

U.S.C. § 1344—the Mandatory Victim Restitution Act requires 

restitution for the losses caused by the entire scheme, even if 

the defendant is not convicted of all of the conduct that caused 

loss.”); United States v. Belk, 435 F.3d 817, 819 (7th Cir. 2006) 

(“The ‘crime’ covered by § 1341 is the scheme to defraud, not 

(just) the mailings that occur in the course of the scheme. This 

indictment laid out, and the jury convicted Belk of, a multiyear scheme to defraud .... Restitution for the whole scheme 

is in order.”). 

The defendants also submit that the district court abused 

its discretion in finding proximate cause between the defendants’ conduct and any loss to the SBA. Because we already 

have concluded that the defendants’ fraudulent misrepresentations caused the SBA’s loss in our discussion of the loss 

amount under U.S.S.G. § 2B1.1(b), we now address only the 

new contention that the defendants raise with respect to restitution. In this respect, the defendants submit that the SBA’s 

failure to try to recoup from the lenders purportedly improper guarantee payments is an independent intervening act 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 39

that breaks the chain of causation between the defendants’ 

conduct and the SBA. 

The district court did not abuse its discretion in determining that there was proximate cause between the defendants’ 

conduct and the SBA’s loss without consideration of the ability of the SBA to recoup losses from lenders. The MVRA provides that “[i]n no case shall the fact that a victim has received 

or is entitled to receive compensation with respect to a loss 

from insurance or any other source be considered in determining the amount of restitution.” 18 U.S.C. § 3664(f)(1)(B). 

We therefore have explained that, “when determining the restitution amount the court is confined to considering (1) the 

property or value of property lost by the victim and (2) the 

value of property returned from the defendant to the victim, 

but not the victim’s receipt of property from third parties.” 

United States v. Malone, 747 F.3d 481, 485 (7th Cir. 2014); see 

also United States v. Johnson, 911 F.3d 849, 852 (7th Cir. 2018) 

(explaining that § 3664(f)(1)(B) “is a statutory version of the 

collateral-source doctrine, familiar in tort law”). 

The defendants finally contend that the district court erred 

by including guarantee fees and interest amounts in the restitution amount. We need not consider this argument because 

it is completely undeveloped, both in the district court record 

and on appeal. See, e.g., United States v. Butler, 58 F.4th 364, 368 

(7th Cir. 2023) (explaining that arguments that are undeveloped on appeal are waived). In any event, the district court 

did not abuse its discretion in calculating restitution by relying on the outstanding balance amounts that the PSRs stated 

the SBA purchased for each loan. 
40 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

iii. Sophisticated Means Enhancement

Mr. Griffin and Mr. Smith submit that the district court 

erred in applying the “sophisticated means” enhancement 

under U.S.S.G. § 2B1.1(b)(10)(C) to their sentences. We review 

de novo the application of the Guidelines, see Sheneman, 682 

F.3d at 630, and we review for clear error the district court’s 

finding that the offense involved sophisticated means, see

United States v. Sykes, 774 F.3d 1145, 1152 (7th Cir. 2014). “[A] 

district court need only find by a preponderance of the evidence facts sufficient to support the enhancement.” United 

States v. Friedman, 971 F.3d 700, 717 (7th Cir. 2020) (quoting 

United States v. Sewell, 780 F.3d 839, 848 (7th Cir. 2015)). 

The “sophisticated means” enhancement applies if the offense “involved sophisticated means and the defendant intentionally engaged in or caused the conduct constituting sophisticated means.” U.S.S.G. § 2B1.1(b)(10)(C). The Sentencing 

Commission added the requirement that the defendant “intentionally engaged in or caused the conduct constituting sophisticated means” in 2015 to clarify that application of this 

enhancement should be based “on the defendant’s own intentional conduct” rather than “on the basis of the sophistication 

of the overall scheme without a determination of whether the 

defendant’s own conduct was ‘sophisticated.’” U.S.S.G. Supp. 

App. C, Amdt. 792 (Reason for Amendment). An application 

note explains that “‘sophisticated means’ means especially 

complex or especially intricate offense conduct pertaining to 

the execution or concealment of an offense.” U.S.S.G. § 2B1.1 

cmt. n.9(B). The enhancement “does not require a brilliant 

scheme, just one that displays a greater level of planning or 

concealment than the usual [fraud] case.” United States v. 

Lundberg, 990 F.3d 1087, 1097 (7th Cir. 2021) (quoting United 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 41

States v. Fife, 471 F.3d 750, 754 (7th Cir. 2006)); see also United 

States v. Bickart, 825 F.3d 832, 837–38 (7th Cir. 2016) (quoting 

United States v. Kontny, 238 F.3d 815, 821 (7th Cir. 2001) 

(“‘[S]ophistication’ refers ‘to the presence of efforts at concealment that go beyond (not necessarily far beyond, for it is only 

a two-level enhancement ...) the concealment inherent in [the] 

fraud.’”). Application of the sophisticated means enhancement is not limited to “only the mastermind of the scheme.” 

United States v. Muresanu, 951 F.3d 833, 840 (7th Cir. 2020). 

Mr. Griffin and Mr. Smith each contend that the district 

court erred in its application of the sophisticated means enhancement to his sentence because it considered the sophistication of the conspiracy as a whole rather than considering 

whether each defendant “intentionally engaged in or caused 

the conduct constituting sophisticated means,” as required by 

U.S.S.G. § 2B1.1(b)(10)(C). At each defendant’s sentencing 

hearing, the district court stated that it looked at “the overall 

scheme to evaluate sophistication” under Seventh Circuit 

case law.58 At Mr. Griffin’s sentencing hearing, the court specifically cited United States v. Wayland, 549 F.3d 526 (7th Cir. 

2008), which, Mr. Griffin notes, predates the 2015 amendment 

to the sophisticated means enhancement. 

After reviewing the relevant parts of the transcript, we are 

confident that the district court neither misunderstood the 

governing principle nor misapplied that principle. Taken in 

context, the district court’s statement that it looked at “the 

overall scheme to evaluate sophistication” clearly meant that 

it would evaluate the individual defendant’s conduct as a 

whole in the context of the overall scheme. Indeed, in 

58 M. Smith’s Sentencing Tr. at 26; Griffin’s Sentencing Tr. at 35. 
42 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

Wayland, we affirmed the application of the sophisticated 

means enhancement to a defendant who singlehandedly had 

perpetrated a healthcare fraud scheme because, “[e]ven if 

[his] individual actions could be characterized as unsophisticated, ... his overall scheme, which lasted nine years and involved a series of coordinated fraudulent transactions, was 

complex and sophisticated.” 549 F.3d at 529. The 2015 amendment to the sophisticated means enhancement did not affect 

the principle that a district court can look to a defendant’s 

conduct as a whole to evaluate sophistication. See, e.g., United 

States v. Redman, 887 F.3d 789, 793 (7th Cir. 2018) (quoting 

United States v. Ghaddar, 678 F.3d 600, 602 (7th Cir. 2012)) 

(“[N]ot all of [the defendant’s] actions needed to be elaborate 

for the adjustment to apply; it is enough that, as the district 

court found, his actions when viewed as a whole constituted 

a sophisticated scheme.”). The appropriate inquiry therefore 

was whether, in the context of the overall scheme, the individual defendant’s conduct, evaluated as a whole, was sophisticated. 

In imposing the sophisticated means enhancement, the 

district court properly considered the conduct that Mr. Griffin 

and Mr. Smith each intentionally engaged in or caused within 

the context of the overall scheme. At Mr. Smith’s sentencing 

hearing, for example, the district court noted that he, with 

Ms. Agee, had “instructed” the owner of Rodgers Finishing 

Tools to use $50,000 of the “loan proceeds designated as 

working capital” to fund a personal check ostensibly offered 

as the required equity injection so that it “appear[ed] as 

though Rodgers Finishing Tools had made the $50,000 equity 
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 43

injection when they had not, in fact, done so.”59 The court also 

stated that, although “[m]aybe someone else had introduced 

it to him,” “it was Mr. Smith who introduced [the bridge loan 

structure] to his co-conspirators on the Touchton loan by 

which ... Mr. Smith’s company issue[d] a ... loan that would 

be temporarily used to pay off past due payroll taxes and 

which, itself, would be paid off by the SBA loan.”60 At 

Mr. Griffin’s sentencing hearing, the district court noted that 

Mr. Griffin also was involved in the “use [of] a bridge loan 

structure, which is sophisticated means, on the Touchton 

loan.”61 The court also discussed his involvement in the Larson Cement loan. The court noted that he had concealed “using working capital to repay delinquent IRS withholding 

taxes” and “purposely left the box unchecked regarding using 

the funds for repayment of delinquent taxes” on the SBA loan 

application.62 It is clear that Mr. Griffin and Mr. Smith had insinuated themselves into the overall conspiracy. The district 

court did not clearly err in determining that Mr. Griffin and 

Mr. Smith each intentionally engaged in conduct constituting 

sophisticated means as part of the scheme to defraud the 

SBA.63 

59 M. Smith’s Sentencing Tr. at 26.

60 Id. at 27.

61 Griffin’s Sentencing Tr. at 35. 

62 Id. 

63 Cf. Ghaddar, 678 F.3d at 603 (concluding that the use of “elaborate tactics 

to conceal the source of ... money” constitutes sophisticated means); 

United States v. Reichel, 911 F.3d 910, 918 (8th Cir. 2018) (“[The defendant’s] 
44 Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 

iv. Clerical Error in Mr. Griffin’s Amended Judgment

Mr. Griffin and the Government agree that the district 

court erred in imposing a condition of supervised release on 

Mr. Griffin in the amended final judgment that is different 

than the condition announced at his sentencing hearing. We 

review de novo a claim of an inconsistency between an oral 

and written judgment, and “where the oral pronouncement 

of the court conflicts with the court’s later written order, the 

oral pronouncement controls.” United States v. Sanchez, 814 

F.3d 844, 847 (7th Cir. 2016). Furthermore, when “the written 

judgment failed to capture accurately the unambiguous oral 

pronouncement,” Federal Rule of Criminal Procedure 36 “allows for correction of such a clerical error at any time.” United 

States v. Medina-Mora, 796 F.3d 698, 700 (7th Cir. 2015). 

At Mr. Griffin’s sentencing hearing, the district court proposed a supervised release condition requiring Mr. Griffin to 

“participate in a mental health evaluation and any treatment 

program deemed necessary.”64 Condition 14 of supervised release in the first written judgment properly provided that 

Mr. Griffin was required to “participate in a mental health 

evaluation and treatment if deemed necessary.”65 Condition 

14 in the amended judgment, which was modified only with 

respect to Mr. Griffin’s requested correctional facility, 

multi-year use of bridge loans from one investor to cover the debts of another constituted sophisticated means for the wire fraud counts.”).

64 Griffin’s Sentencing Tr. at 38.

65 R.333 at 4.
Nos. 21-3326, 21-3352, 21-3361, 22-1012, & 22-1075 45

required him to “participate in a mental health treatment program.”66 

We agree that the omission of “if deemed necessary” from 

the mental health condition in the amended judgment was erroneous. Condition 14 in Mr. Griffin’s amended judgment 

should match Condition 14 as written in the first judgment. 

We modify the judgment in Mr. Griffin’s case so that Condition 14 requires that he “participate in a mental health evaluation and treatment if deemed necessary.” 

Conclusion

For the foregoing reasons, we affirm the defendants’ convictions and sentences, except that we modify the amended 

judgment in Mr. Griffin’s case so that Condition 14 of supervised release requires that he “participate in a mental health 

evaluation and treatment if deemed necessary.”

 AFFIRMED

66 R.346 at 4.