In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3593

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KATHRYN G. GARTEN,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 12-CR-30320 — G. Patrick Murphy, Judge.

____________________

ARGUED SEPTEMBER 18, 2014 — DECIDED JANUARY 23, 2015

____________________

Before WOOD, Chief Judge, and POSNER and MANION, Circuit Judges.

MANION, Circuit Judge. Following a four-day trial, a jury 

convicted Kathryn Garten of conspiracy to commit mail and 

wire fraud in the conduct of telemarketing, in violation of 18 

U.S.C. §§ 1349, 2326(1). The district court then sentenced 

Garten to 168 months in prison and a five-year term of supervised release, and ordered her to pay $909,278 in restitution. Garten appeals, challenging the sufficiency of the evi-
2 No. 13-3593

dence, the admission of testimony that a co-conspirator had 

pleaded guilty to the same offense, a comment made by the 

district court judge at trial, and the calculation of the loss for 

sentencing purposes. We affirm. 

I.

In November 2012, a federal grand jury returned a onecount indictment charging Kathryn Garten with conspiracy 

to commit mail and wire fraud in connection with telemarketing, in violation of 18 U.S.C. §§ 1349 and 2326(1). Garten 

pleaded not guilty and proceeded to trial. Over the course of 

a four-day trial, the jury heard testimony from eight witnesses: four victims of the fraud; an investigator for the Federal Trade Commission; a fraud analyst for the United States 

Postal Inspection Service; an indicted co-conspirator who 

was testifying as part of a cooperation agreement; and 

Garten herself. While Garten maintained her innocence, because this case comes to us following a jury verdict, 

[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. This familiar standard gives full play to the responsibility of the trier 

of fact fairly to resolve conflicts in the testimony, to weigh 

the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts.

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (internal citation 

omitted). Therefore, we summarize below the evidence elicited at trial “in the light most favorable to the government.”

United States v. Squibb, 534 F.3d 668, 669 (7th Cir. 2008).
No. 13-3593 3

In April 2008, Garten began working as a telemarketer 

for National Solutions in Orlando, Florida. While working 

for National Solutions, Garten called hundreds of individuals located throughout the United States who owned 

timeshares. A timeshare is a right to use a residential property for a set number of days each year. Timeshare properties 

are typically located in tourist locations and many timeshare 

agreements allow owners to swap their time at one resort for 

time at another locale. While some timeshare owners are 

happy with the arrangement, over time many wish to dispose of their timeshares because, as they age, interests 

change and travel becomes more difficult, and the annual 

maintenance fees escalate and become burdensome. But, according to a government witness, there is no real secondary 

market for timeshares.

National Solutions, as well as several related entities, was 

owned by Leandro Velazquez.

1 (We use “National Solutions” throughout as shorthand for all the related Velazquez

entities.) Velazquez devised a scheme to use National Solutions to defraud the owners of timeshares who wished to sell 

their properties. Basically, the plot entailed Velazquez setting up National Solutions and the other entities to look like 

legitimate telemarketing firms that represented people who 

wanted to sell a timeshare. They obtained state licenses to 

operate, and applied for regulatory approval of scripts telemarketers were purportedly to use to solicit willing sellers

1 The related entities included Blue Scape Timeshares, Sun Property Networks, Resort Advisors, and City Resorts.

 
4 No. 13-3593

to pay National Solutions a fee in exchange for advertising 

the timeshares for sale.

However, rather than using the state-approved script, 

Velazquez told his employees to use another script, referred 

to as a “buyer pitch.” (He also told the employees to use an 

alias instead of their real names.) In following the buyer 

pitch, National Solutions employees would falsely tell owners of timeshares that they had a purchaser for their 

timeshare, but that to finalize the sale, the timeshare owner 

needed to provide funds up front to arrange for the closing. 

The timeshare owners were also falsely told that they would 

get the money back at closing and that the funds would be

held in a trust account. Once the timeshare owners agreed to 

sell their timeshare at the discussed price, National Solutions 

transmitted a contract to them. However, the fine print of 

the contract stated that the funds remitted (supposedly to 

arrange the closing) were for “a one-time nonrecurring and 

nonrefundable advertising fee.”

After receiving the signed form contract, a National Solutions employee would tell the timeshare owner that they 

would receive another call for purposes of a Federal Trade 

Commission (“FTC”) verification. The purported FTC verification had nothing to do with the FTC, but instead was 

part of the scam, the purpose of which was to obtain a recording of the timeshare owner responding to two questions: first, whether they had been given any information on 

a specific purchaser for their property; and second, whether 

they had received any other promises from National Solutions. If the timeshare owner did not respond “appropriately” to these questions (meaning, they verified in the recording that National Solutions had not provided them with a 
No. 13-3593 5

purchaser’s information or made any other promises), National Solutions would drop that “prospect.”

In order to assuage any suspicion and to get the 

timeshare owners to state on the recorded calls that National 

Solutions had not promised anything or given a buyer’s 

name, a National Solutions employee would prep the 

timeshare owner before the “FTC verification” call. The National Solutions employee would soft-sell the questions and

tell the timeshare owner that the first question merely meant 

that National Solutions had not provided the owner with 

confidential information about the buyer, such as his social 

security number or date of birth. And that the second question merely meant that National Solutions had not promised 

them anything as a reward for selling the property, such as a 

car or a trip to the Bahamas.

Once National Solutions received the signed contract and

the funds, and succeeded in obtaining a recorded confirmation of the contract, it would add the timeshare location with 

a brief description and a price on a list on the internet of 

properties for sale. It did nothing further, except to delay 

and dissemble. When the sale did not proceed as promised, 

the timeshare owners would start calling National Solutions. 

The employees would make up excuses about why the closing was not proceeding. One excuse they gave was that there 

was a problem with “get-away weeks,” which were apparently extra weeks a timeshare owner had earned. The National Solutions employees would claim they needed further 

funds to arrange the transfer of the get-away weeks in order 

to proceed with the initial closings. And again, this was a lie. 

There were no buyers for the get-away weeks, just as there 

were no buyers for the timeshares. After receiving these ad-
6 No. 13-3593

ditional funds, National Solutions continued its delay tactics 

until the timeshare owners stopped calling. No sales were 

ever closed.

If the timeshare owners complained, National Solutions 

would point to the contract language which, as noted above, 

stated in fine print that the fee was for advertising. And it 

would have the recorded call from the purported FTC verification, in which the timeshare owner had confirmed that it 

had not been given information about a specific buyer and 

had been given no other promises. Sometimes, though, in 

order to quell some more vocal complaints, National Solutions would refund those fees.

All told, National Solutions obtained $6,047,796 from this 

fraud. Velazquez would keep a majority of the funds (70%) 

and the telemarketers, who had solicited and then sealed the 

deal with the various marks, would receive a cut: if they had 

handled the entire deal, they would receive 30%; but if one 

or more telemarketers were involved, they would split the 

30% among themselves.

Eventually, enough people complained to governmental 

agencies that the FTC began investigating National Solutions. In July 2011, the FTC filed a civil complaint against 

National Solutions and obtained an ex parte temporary restraining order, an asset freeze, and the appointment of a receiver over the company. In conjunction with that case, on 

July 13, 2011, the FTC raided two National Solutions locations in Florida. 

While one location was mostly empty, the other office 

building had between five and ten employees present when 

agents arrived. The agents photocopied the driver’s licenses 
No. 13-3593 7

of the employees who were present, which included defendant Garten as well as her son. The investigators also seized 

records and other evidence, drew a layout of the office, and 

took pictures and a videotape of the office. Specifically, they 

took a photograph of the cubicle where Garten worked, as 

well as her telemarketing license which was affixed to the 

cubicle wall. The documents seized also showed that Garten, 

while working for National Solutions, used the aliases “Porter Sullivan” and “Loreen Rinehart.” 

After the raid, the government indicted Garten and two 

other telemarketers, Arantzazu Atorrasagasti (who used the 

aliases Samantha Roberts, Cynthia Jones, and Alex Walker), 

and Carmen Picache (who used the alias Kelly Jones). Before 

he could be arrested, Velazquez disappeared, later telling 

Atorrasagasti he wanted to go to the Dominican Republic.2

Garten pleaded not guilty and proceeded to trial. Both 

Atorrasagasti and Picache pleaded guilty. Atorrasagasti testified at Garten’s trial as part of her cooperation agreement. 

Picache did not testify, although at oral argument the government indicated that she was available to testify and was 

actually in the courthouse hall, but they decided they did not 

need her testimony. While Picache did not testify at trial, the 

government elicited testimony from Timothy Brunholtz, 

2 As of the date of Garten’s trial, several other National Solutions 

employees had not been indicted, including Kiomary Cruiz, Edgar Gonzalez, Jason Falkner, Lisa Correa, and Samwell Velazquez (Leandro Velazquez’s brother). We do not know whether they have since been indicted.

 
8 No. 13-3593

who was a fraud analyst working with the United States 

Postal Inspection Services, that Picache had pleaded guilty.

At trial, Atorrasagasti testified at length concerning the 

fraudulent scheme, as summarized above. She also testified 

concerning Garten’s participation in the scheme. Atorrasagasti explained that she and Garten sat two cubicles away 

from each other and that she heard Garten use the buyer 

pitch on the telephone. She heard Garten tell customers that 

“there’s a buyer ready,” that “[t]hey had money in escrow,” 

“[t]hey will take care of the title search, title transfer,” and 

“[t]he escrow money will be in the trust account.” Atorrasagasti explained that none of that was true and that the National Solutions businesses were “just one big scam.” There 

were no buyers and there were no closings. She further testified that the fact that there were no buyers was something 

that was discussed in Garten’s presence. Atorrasagasti told 

the jury that she knew what she was doing was wrong and 

illegal and that she had been indicted on the same charges as 

Garten—conspiracy to commit mail and wire fraud—and 

that she thought it was fair that Garten had also been prosecuted “[b]ecause, for me and her, we did the same thing, and 

we are both prosecuted.”

The jury also heard from Douglas McKenney, who was 

the investigator for the FTC involved in the case. He explained the FTC’s involvement in the case and the results of 

the raid of National Solutions’ offices. Timothy Brunholtz 

also testified for the government. He explained his role in 

investigating the timeshare resale fraud, as well as his involvement in the FTC raid of National Solutions’ offices. 

During the raid, Brunholtz interviewed Garten. Brunholtz 

told the jury that he explained to Garten that the FTC had 
No. 13-3593 9

received complaints from timeshare owners about the company “cold-calling” them, promising buyers for their 

timeshare, and that “there was a good possibility” there had 

been violations of the federal mail and wire fraud statutes. 

Brunholtz told the jury that “[a]lmost immediately,” Garten 

said that as far as she knew, the company was only involved 

in advertising. Garten also told Brunholtz that she was a 

“fronter”—someone who would simply call the customers 

and ask them if they were interested in selling their 

timeshares. Brunholtz also explained to the jury that he 

“looked through practically every document in that business,” but did not find any advertising documents, closing 

documents, title searches, or communications between resort 

facilities and various buyers, which he would have found if

the business legitimately had buyers. 

Brunholtz also testified about a spreadsheet he created 

based on information extracted from Garten’s weekly sales 

logs recovered during the raid. In explaining the spreadsheet, Brunholtz described two figures in bold on the last 

page of the exhibit—$705,808.07 and $98,569.22—as the 

gross amount of sales and Garten’s commissions for those 

sales, respectively. The prosecutor then asked Brunholtz to 

explain what that meant in “layman’s terms.” Brunholtz responded: “The number on the left is the gross sales. That is 

the total amount that had been charged the consumer, stolen 

from the consumer.” Garten’s attorney objected “to the characterization.” The district court overruled the objection, stating: “I think we have sufficient evidence in terms of that’s 

accurate. The jury has to make a finding whether they believe that, but the evidence is that none were ever sold.”
10 No. 13-3593

While Garten had told Brunholtz that National Solutions 

was merely involved in advertisement and that she only 

called to see if timeshare owners were interested in advertising their timeshares, two of her victims testified that Garten 

had told them she had buyers for their timeshares. And they 

had recorded their telephone conversations with Garten. 

One such victim, Duane Schmidtke, told the jury that on 

March 22, 2011, he received a call from a company called

City Resorts (which was one of the National Solutions affiliates), from a sales representative named Porter Sullivan. 

(Porter Sullivan was an alias for Garten, which Garten admitted using.) Garten told Schmidtke that she had a buyer 

for his timeshare in Maui and could get him $39,000 for it. 

Schmidtke wanted his wife on the phone to talk with Garten 

because they had “been scammed before,” and so the couple 

called Garten back the next day. Schmidtke recorded this 

second phone call, as well as 45 more calls he had with 

Garten and two other company representatives over the 

course of several months between March 23, 2011, and July 

11, 2011. 

All of the calls that Schmidtke recorded were admitted 

into evidence on a compact disc marked as Government’s 

Exhibit 60. Unfortunately, the exhibits were not filed on appeal and the district court docket indicates that the exhibits 

were returned to the parties, pursuant to their stipulation. So 

we don’t have the recordings to listen to, although we do 

have a partial transcript of the recordings, which was included with the PSR. We are thus left with only Schmidtke’s 

(and other witnesses’) more limited summary of what 

Garten said during those calls. 
No. 13-3593 11

Schmidtke explained that during the March 23, 2011, call 

with his wife, Garten told him that she had a buyer for their 

timeshare, but they needed to pay $2,649 up front, which she 

said would be placed in a trust account “that nobody was 

going to touch,” and that they would get their money back 

once everything settled. Schmidtke acknowledged he signed 

a contract with City Resorts which stated: “I understand and 

acknowledge the following: City Resorts is an advertising 

company. The property owner pays a one-time, nonrecurring advertising fee.” Garten, however, told Schmidtke in 

the first recorded call that the fine print in the contract was 

“very confusing” and that it had to be on every contract, but 

that it didn’t pertain to him.

After paying the initial $2,649, the closing did not proceed as scheduled, at which point Atorrasagasti spoke with 

the Schmidtkes and told them the delay was caused by the 

need to transfer “get-away weeks,” and that they would 

need to pay additional up-front costs to process the transfer 

of the “get-away weeks,” at which point the timeshare closing could proceed. The Schmidtkes again forwarded money 

to National Solutions, which along with the initial funds 

paid made the total paid to National Solutions nearly $4,200. 

National Solutions never sold the Schmidtkes’ timeshare. 

Scott MacLean also testified for the government. He explained that he received a call from a sales representative 

named Dominic Ferrara, who told him that he had buyers 

interested in purchasing two timeshares owned by MacLean’s parents. (Scott handled his parents’ timeshares 

through a power of attorney.) When Ferrara floated a price, 

MacLean said that the price seemed low, to which Ferrara 

responded he would “check with the buyer” about a higher 
12 No. 13-3593

price. Ferrara later told MacLean that the buyer had come up 

on the price, agreeing to pay $42,840 for one timeshare and 

$12,600 for the other. After MacLean received the National 

Solutions contract, he expressed concern “because it looked 

like a listing arrangement for advertisement,” but then a 

woman named Porter Sullivan explained to him that the 

$4,995 he would pay up front was “basically earnest money” 

that would be deposited into a trust account and refunded to 

his father at closing.

Like Schmidtke, MacLean had recorded the conversations he had with the National Solutions representatives and 

the government admitted into evidence as Exhibit 54 a compact disk with sixteen recorded calls on it. Twelve of the 

calls were played for the jury. In the second recorded call, 

Garten assured MacLean that the contract he had signed and 

faxed back to her was a sales agreement, not a listing agreement. MacLean eventually mailed a cashier’s check for 

$4,995 to National Solutions. 

After MacLean mailed the $4,995 to National Solutions, 

the closing did not proceed as scheduled. Garten explained 

that the hold-up was the transfer of “get-away weeks,” and 

that to transfer those to the buyer and then close on the initial timeshare sale, MacLean needed to remit another $2,500. 

He did, but the sale never happened and his parents were 

out nearly $7,500.

Two other victims, Beverly Jones and Marvin Boswell, also testified. While neither Jones nor Boswell had spoken to 

Garten, they testified that other National Solutions employees followed a similar “buyer pitch.” They explained how 

they were called by National Solutions representatives, told 

National Solutions had buyers for their timeshares and that 
No. 13-3593 13

to close they needed to provide up-front payments, which 

they would then recoup at the closing. No closings, though, 

ever took place.

Finally, Garten testified in her own defense. Faced with 

the testimony and taped recordings of her conversations, 

which established that Garten had told the timeshare owners 

that there were buyers for the timeshares, Garten claimed 

that she was told there were buyers and believed there were 

buyers for the timeshares. The gist of her testimony was that 

she thought National Solutions was a legitimate business 

and that while she had lied, she believed that there truly 

were buyers for the timeshares.

The jury did not buy Garten’s story and convicted her. 

The district court then sentenced her to 168 months in prison, five years of supervised release, and ordered her to pay 

$909,278 in restitution. In sentencing Garten, the district 

court found the loss involved in her offense of conviction 

was nearly $6 million. Accordingly, the district court increased her offense level by 18, pursuant to U.S.S.G. §

2.1(b)(1)(J), which applies for losses between $2.5 million 

and $7 million. Garten appeals.

II.

On appeal, Garten presents four arguments. First, she argues that the evidence is insufficient to support her conviction for conspiracy to commit mail and wire fraud in connection with the conduct of telemarketing. Next, she argues that 

the district court committed reversible error by stating 

“that’s accurate” in overruling Garten’s objection to Brunholtz’s testimony that the “gross amount” on Exhibit 79 was 

the amount “stolen from the consumer.” Her third challenge 
14 No. 13-3593

is to Brunholtz’s testimony that co-conspirator Picache had 

pleaded guilty, arguing this constituted reversible error because Picache had not testified at Garten’s trial. Finally, 

Garten challenges her sentence, arguing the evidence was 

insufficient to support the district court’s finding that the 

loss involved totaled nearly $6 million. We consider each issue in turn, but having painted in some detail the scene before the jury, they are all easily—and quickly—disposed of.

III.

A. Sufficiency of the Evidence

As noted, Garten first challenges the sufficiency of the evidence. “[T]o support [her] conspiracy conviction, the Government was required to prove that [s]he knew of the essential nature and scope of the charged conspiracy and that 

[s]he intended to participate in it.” United States v. Anderson, 

580 F.3d 639, 646 (7th Cir. 2009). Garten claims the evidence 

was insufficient to show that she knew of the nature of the 

conspiracy or intended to participate in it. 

In reviewing the sufficiency of the evidence, we review 

the evidence in the light most favorable to the government, 

and we will overturn a jury verdict only if no rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Molton, 743 F.3d 

479, 483 (7th Cir. 2014). However, the government argues 

that because Garten did not renew her motion for a directed 

verdict at the close of the evidence or file a motion for judgment of acquittal, she must demonstrate that her conviction 

was “a manifest miscarriage of justice.” United States v. 

Brandt, 546 F.3d 912, 918 (7th Cir. 2008). 
No. 13-3593 15

Garten cannot overcome this high standard. Nor can she 

overcome the less exacting but still weighty standard normally governing challenges to the sufficiency of the evidence. The government presented substantial evidence enabling the jury to conclude that Garten knew of the scope of 

the conspiracy and intended to participate in it. The testimony and recordings established that Garten told the timeshare 

owners that there were buyers for their timeshares and that 

the fine print referring to advertisements did not apply to 

them. Atorrasagasti testified that the fact that there were no 

buyers was something discussed in Garten’s presence. And 

the jury heard from Brunholtz that when he interviewed 

Garten, “she said that as far as she knew, the company was 

only involved in advertising.” Garten also told Brunholtz 

that she simply called the customers to ask if they were interested in selling their timeshares. Garten’s trial testimony,

that she only told timeshare owners there was a buyer for 

their timeshare because she was told there were, conflicted 

with her earlier statement. A reasonable jury could conclude 

that Garten had lied first to Brunholtz when she said the 

business was only involved in advertising, and then again to 

the jury when she said that she was told there were buyers 

for the timeshares. The jury could further reasonably conclude that Garten lied because she knew of the scope of the 

conspiracy and intended to participate in it. Accordingly, we 

reject Garten’s challenge to the sufficiency of the evidence.

B. The District Court’s Statement That Brunholtz’s Testimony was Accurate

Garten next argues that the district court committed reversible error by telling the jury that Brunholtz’s testimony 

that $705,808.07 was the amount “stolen from the consumer” 
16 No. 13-3593

was “accurate.” This argument is easily disposed of.

Garten’s argument takes what the district court said completely out of context. As explained above, after Brunholtz

said that the sum $705,808.07 on Exhibit 79 was “the gross 

amount of sales,” the prosecutor asked him to explain what 

that meant in “layman’s terms.” Brunholtz responded: “The 

number on the left is the gross sales. That is the total amount 

that had been charged the consumer, stolen from the consumer.” In response to Garten’s attorney’s objection “to the 

characterization,” the district court overruled the objection, 

stating, in full: “I think we have sufficient evidence in terms 

of that’s accurate. The jury has to make a finding whether 

they believe that, but the evidence is that none were ever 

sold.” In context, it is clear that the district court was not 

saying that the money, in fact, had been stolen; rather, the 

district court was addressing Brunholtz’s characterization 

and stating that the amount was accurate as alleged and that 

the evidence was sufficient to support his characterization 

that the money had been stolen, but that it was up to the jury 

to decide whether or not to believe the testimony. The district court made no error in responding to the objection, and 

thus we reject Garten’s challenge.

C. Brunholtz’s Testimony That Picache had Pleaded 

Guilty

Next Garten argues that Brunholtz’s testimony that Picache had pleaded guilty denied her a fair trial because Picache did not testify at Garten’s trial and thus was not subjected to cross-examination. Garten did not object to this testimony at trial, so our review is for plain error. United States 

v. Vasquez, 673 F.3d 680, 684 (7th Cir. 2012). The government 

rightly concedes that it was erroneous to elicit testimony that 
No. 13-3593 17

Picache had pleaded guilty to the same offense as Garten 

without putting her on the stand. However, the government 

maintains that any error was harmless and thus not plain 

error.

We agree. As summarized above, the evidence against 

Garten was overwhelming. Conversely, the testimony that 

Picache had pleaded guilty was fleeting and was not 

stressed by the government or even mentioned during open 

or closing argument. Additionally, the jury had heard from 

Atorrasagasti, who had also pleaded guilty, and the district 

court instructed the jury that Atorrasagasti “has pled guilty 

to the same crime the defendant, Kathryn Garten, is charged 

with committing. You may not consider Ms. Atorrasagasti’s 

guilty plea as evidence against Ms. Garten ... you must consider that testimony with caution and great care.” While 

Garten stresses that the jury did not receive a similar instruction concerning Picache’s guilty plea, a reasonable jury hearing this instruction would infer that it likewise could not use 

the fact of Picache’s guilty plea against Garten. Coupled 

with the overwhelming evidence against Garten, and the fact 

that mention of Picache’s guilty plea was fleeting, it did not 

constitute plain error, “that is, the conviction of an innocent 

person ... .” United States v. Newman, 965 F.2d 206, 213 (7th 

Cir. 1992).

D. Amount of the Loss

Finally, Garten challenges the district court’s determination of the loss for sentencing purposes. The district court 

found Garten responsible for approximately $6 million in 

losses, which represented the total amount of money deposited into National Solutions’ bank accounts during the time 

period that Garten was actively participating in the conspir-
18 No. 13-3593

acy. The district court then enhanced her offense level by 18, 

pursuant to U.S.S.G. § 2B1.1(b)(1)(J), which applies for losses 

between $2.5 million and $7 million. We review the district 

court’s calculation of loss for clear error. United States v. 

Rosen, 726 F.3d 1017, 1024 (7th Cir. 2013).

While Garten argues that the $6 million loss was speculative, the evidence was more than sufficient to support the 

district court’s finding. Specifically, Brunholtz testified he 

had reviewed the bank accounts of National Solutions and 

the net amount (amounts deposited less refunds issued) totaled approximately $6 million. Garten counters that National Solutions was involved in some legitimate rental activities and thus the $6 million in deposits was not all a result of fraudulent activities. But the district court heard testimony from Garten’s co-conspirator Atorrasagasti that National Solutions was “just one big scam.” Additionally, 

Brunholtz had testified at trial that he “looked through practically every document in that business,” but did not find 

any advertising documents or communications between resort facilities. Garten also did not present any evidence of 

legitimate activities, much less identify a dollar amount of 

non-fraudulent business activities. Under these circumstances, the district court did not commit clear error in enhancing 

Garten’s sentencing level by 18 for causing a loss of between 

$ 2.5 and $7 million.

IV.

A jury convicted Garten of conspiracy to commit mail 

and wire fraud in connection with the conduct of telemarketing after hearing overwhelming evidence against her. There 

was more than sufficient evidence to support this conviction. 

Thus, while it was error for Brunholtz to testify that Picache 
No. 13-3593 19

had pleaded guilty to the same charge since she did not testify at Garten’s trial, any error was harmless. There was no 

error, though, in the district court’s response to Garten’s objection to the characterization of the “gross amount” as the 

amount “stolen.” The district court’s comment, in total, 

made clear that he was not telling the jury that the money 

had been stolen—that was a question for the jury—just that 

the evidence could support that characterization. Finally, the 

district court did not clearly err in finding that the loss involved between $2.5 and $7 million for purposes of sentencing. The government presented evidence that the net deposits into National Solutions’ bank accounts totaled approximately $6 million and that the entire business was a scam. 

Therefore, the district court could easily find the entirety of 

the net deposits was a loss related to Garten’s offense of 

conviction. We AFFIRM.