### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3593 U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.
K ATHRYN G. G ARTEN , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Southern District of Illinois

. No. 12

- CR

- 30320

— G. Patrick Murphy , Judge

.

____________________ A RGUED S EPTEMBER 18, 2014

— D ECIDED J ANUARY 23, 2015

____________________
Before W OOD , Chief Judge , and P OSNER and M ANION , Ci rcuit Judges

. M ANION , Circuit Judge

. Following a four

- day trial, a jury convicted Kathryn Garten of conspiracy to commit mail and wire fraud in the conduct of telemarket ing, 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 s upervised release, and order ed her to pay $909,278 in restit ution

. Garten appeals, challenging the sufficiency of the ev i-2 No. 13

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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 one

count indictment charging Kathryn Garten with conspiracy to commit mail and wire fraud in connection with telema rketing, 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 wi tnesses: four victims of the fraud; an investigator for the Fe deral 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, b ecause this case comes to us following a jury verdict, [t]he relevant question is whether, after viewing the e vidence in the light most favorable to the prosecution, any rational trier of fact could have found the e ssential el ements of the crime beyond a reasonable doubt. This fami liar 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 fa cts to ultimate facts. Jackson v. Virginia , 443 U.S. 307, 319 (1979) ( internal citation omitted)

. Therefore, we summarize below the evidence eli cited at trial “ in the light most favorable to the government

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

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In April 2008, Garten began working as a telemarketer for National Solutions in Orlando, Florida

. While working for National Solutions, Garten called hundreds of individ uals located throughout the United States who owned timeshares

. A timeshar e is a right to use a residential prope rty 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 som e timeshare owners are happy with the arrangement, over time many wish to di sp ose of their timeshares because, as they age , interests change and travel becomes more difficult, and the annual mainten ance fees escalate and become bu rdensome

. B ut, a ccording 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 Sol utions” throughout as shorthand for all the related Velazquez entities.) Velazquez devised a scheme to use National Sol utions to defraud the owners of timeshares who wished to sell their properties

. Basically, the plot entailed Velazquez se tting up National Solutions and the other entities to look like legitimate tel emarketing firms that represented people who wanted to sell a timeshare. They obtained state licenses to operate, and applied for regulatory approval of scripts te lemarketers were purportedly to use to solicit willing sellers

1 The related entities included Blue Scape Timeshares , Sun Prope rty Networks, Resort Advisors, and City Resorts.4 No. 13

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to pay National Solutions a f ee 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 ow ners 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 fo r 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 Solution s transmitted a contract to them

. However, t he 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 Sol utions employee would tell the timeshare owner that they would receive another call for pur poses of a Federal Trade Commission (“FTC”) v erification. The purported FTC ver ification had nothing to do with the FTC, but instead was part of the sca m, the purpose of which was to obtain a r ecording of the timeshare owner responding to two que stions: f irst, whether they had been given any information on a specific purchaser for their property; and second, whether they had received any other promises fr om National Sol utions

. If the timeshare owner did not respond “appropriat ely” to these questions (meaning, they verified in the recor ding that National Solutions had not provided them with aNo. 13

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purchaser’s information or made any other promises), N ational Solutions would drop that “prospect.” In order to assuage any suspicion and to get the timeshare owners to state on the rec orded calls that National Solutions had not p romised anything or given a buyer ’s
name , a National Solutions employee would pre p the timeshare owner before the “FTC verification” call

. The N ational 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 i nformation about the buyer, such as his social security number or date of birth. And that the second que stion 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 confirm ation 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 sa le

. It did nothing further, except to delay and dissemble

. When the sale did not proceed as promised, the ti meshare owners would start calling National Solutions

. The employees would make up excuses about why the clo sing was not proceeding

. One excuse they gave was that there was a problem with “get

- away week s ,” which were appa rently extra weeks a timeshare owner had earned

. The N ational Solutions employee s would claim they needed further funds to arrange the transfer of the get

- away week s in order to proce ed 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. Afte r receiving these a d-6 No. 13

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ditional funds, National Solutions continued its delay tactics until the timesha re 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 rec orded call from the purported FT C verif ication, 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, Nation al Sol utions 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 vario us marks, would recei ve a cut: i f 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 Sol utions

. In July 2011, the FTC filed a civil complaint against National Solutions and obtained an ex parte temporary r estraining order, an asset freeze, and the appointment of a r eceiver over the company. In conjunction with that case, on July 13, 2011, the FTC raided two National Solution s loc ations 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 licensesNo. 13

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of the employ ees who were present, which included defen dant 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 cu bicle 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 “Po rter 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 th e Dominican Repub lic. 2 Garten pleaded not guilty and proceeded to trial

. Both Atorrasagasti and Picache pleaded guilty

. Atorrasagasti te stified at Garten’s trial as part of her cooperation agre ement

. Picache did not testify, although at oral argument the go vernment indicated that she was available to testif y and was actually in the court house hall, but they decided they did not need her testimony

. While Picache did not testify at trial, the gove rnment 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 Go nzalez, Jason Falkner, Lisa Correa, and Samwell Velazquez (Leandro V elazquez’s brother). W e do not know w hether they have since been i ndicted.8 No. 13

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who was a fraud analyst working with the United States Postal Inspection Services , that Pi c ache 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

. Atorras agasti 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.” Atorras ag asti explained that none of that was true and that the N ational Solution s businesses were “just one big scam.” There were no buyers and there were no closings

. She further test ified that the fact that there were no buyers was something that was discussed i n 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 a lso been pros ecuted “[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 e xplained the FTC’s involvement in the case and the results of the raid of National Solution s’ offices

. Timothy Brunholtz also testified for the government. He explained his role in investigating the timeshare res ale fraud, as well as his i nvolvement 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 hadNo. 13

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received complaints from timeshare owners about the co mpany “ cold

- calling” them , promising buyers for their timeshare , and that “there was a good p ossibility” there had been violations of the federal mail and wire fraud statutes

. Brunholtz told the jury that “[a]lmost imme diately,” Garten said that as far as she knew, the company was only involved in advertising. Garten also told Brunholtz that she w as 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 bus iness,” but did not find any adv ertising documents, closing documents, title searches, or communications between resort facilities and various buyers, which he would have found if th e business legitimately had buyers. Brunholtz also testified about a spreadsheet he created based on info rmation extracted from Garten’s weekly sales logs recovered during the raid. In explaining the sprea dsheet, 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 r esponded: “The number on the left is the gross s ales

. That is the total amount that had been charged the consumer, st olen from the consumer.” Garten’s attorney object ed “to the cha racterization.” The district court overruled the objection, sta ting: “I think we have sufficient evidence in terms of that’s accurate

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

- 3593

While Garten had told Brunholtz that Na tional Solutions
was merely involved in advertisement and that she only called to see if timeshare owners were interested in adverti sing their timeshares, two of her vic tims 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 Solution s affil iates), from a sales representative named Porter Sullivan

. ( Porter Sullivan was an alias for Garten, which Garten a dmitted using. ) Garten told Schmidtke that she had a buyer for his timeshare in M aui 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 a ppeal 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 transc ript of the recordings, which was i ncluded 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

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Schmidtke explained that during the March 23, 2011 , call with his wife, Gar ten 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 a cknowledged 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, nonrecu rring 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 pr oceed 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 clo sing could proceed

. The Schmidtkes again forward ed money to National Solution s , which along with the initial funds pa i d made the total paid to National Solutions nearly $4,200

. National Solutions never sold the Schmidtkes’ timeshare

. Scott MacLean also te stified for the government

. He e xplained 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 Ma cLean’s parents

. (Scott handled his parent s ’ timeshares t hrough a power of attorney.) When Ferrara floated a price, MacLean said that the price seemed low, to which Ferr ar a responded he would “check with the buyer” about a higher12 No. 13

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price

. Ferrara later told MacLean that the buyer had come up on the price, agreein g to pay $42,840 for one timeshare and $12,600 for the other

. After MacLean received the National Solution s 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 convers ations he had with the National Solutions representatives and the government admitted into evidence as Exhibit 54 a co mpact 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 agre ement

. MacLean eventually mailed a cashier’s check for $4,995 to National Solutions. After MacLean mailed the $4,995 to National Solution s , the closing did not proceed as scheduled

. Garten expla ined that the hold

- up was the transfer of “get

- away weeks,” and that to transfer those to the buyer and then close on the in itial 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, a lso testified

. While neither Jones nor Boswell had spoken to Garten, they testified that other National Solution s emplo yees followed a similar “buyer pitch .” They explained how they were called by National Solution s representatives, told National Solu tions had buyers for their time shares and thatNo. 13

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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 test ified 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 the re 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 timeshare s

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

. The district court then sentenced her to 168 months in pri son, 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 i ncreased 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 a rgues that the evidence is insufficient to support her convi ction for conspiracy to commit mail and wire fraud in conne ction with the conduct of telemarketing

. Next, she argues that the district court committed reversib le error by stating “that’s accurate” in overruling Garten’s objection to Bru nholtz’s testimony that the “gross amount” on Exhibit 79 was the amount “stolen from the consumer.” Her third challenge14 No. 13

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is to Brunholtz’s testimony that co

- conspirator Picache ha d pleaded guilty, arguing this constituted reversible error b ecause 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 t otaled nearly $6 million

. We consider each i ssue in turn, but having painted in some detail the scene b efore 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 e vidence

. “[T]o support [her] conspiracy conviction, the Go vernment was required to prove that [s]he knew of the esse ntial 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 th e government, and we will overturn a jury verdict only if no rational trier of fact could have found the essential elements of the crime b eyond a reasonable doubt

. United States v. Molton , 743 F.3d 479 , 483 (7th Cir. 2014)

. However, the government argues t hat because Garten did not renew her motion for a directed verdict at the close of the evidence or file a motion for jud gment of acquittal, she must dem onstrate that her conviction was “a man ifest miscarriage of justice.” United States v. Brandt , 546 F.3d 912 , 918 (7th Cir. 2008)

.No. 13

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Garten cannot overcome this high standard . Nor can she overcome the less exact ing but still weighty standard no rmally governing challenges to the sufficiency of the ev idence

. The government presented substantial evidence en abling the jury to conclude that Garten knew of the scope of the conspiracy and intended to participate in it

. The testim ony and recordings established that Garten told the timeshare owners that there were buyers for their timeshares and that the fine print refe rring 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 kne w, the company was only involved in advertising.” Garten also told Brunholtz that she simply called the customers to ask if they were i nterested in selling their timeshares

. Garten’s trial testimony , that she only told timeshare owners there was a buyer fo r 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 co nclude 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 D istrict C ourt’s S tatement T hat Brunholtz’s T e stimony was A ccurate Garten next argues that the district court committed r eversible error by telling the jury that Brunholtz’s testimony that $705,808.07 was the amount “ stolen from the consum er”16 No. 13

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was “accurate.” This argument is easily disposed of

. Garten’s argument takes what the district court said co mpletely out of context

. As explained above, after Brunholtz said that the sum $705,808.07 on Exhibit 79 was “the gross
am ount 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 co nsumer.” 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 evi dence is that none were ever sold.” In context, it is clear that the district court was not
sa y ing 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 di strict court made no error in responding to the objection , and thus we reject Garten’s challenge.
C. Brunho l tz’ s T estimony T hat Picache had P leaded G uilty Next Garten argues that Brunholtz’s testimony that P ic ache had pleaded guilty denied her a fair trial because P ic ache did not testif y at Garten’s trial and thus was not su bjected to cross

- examination

. Garten did not object to this te stimony 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 t o elicit testimony thatNo. 13

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Pi c ache 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 G arten was overwhelming

. Conversely, the testimony that Pi c ache 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 plead ed 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 co nsider that testimony with caution and great care.” While Garten stresses that the jury did not receive a similar instru ction concerning Pi c ache’s guilty plea, a reasonable jury hea ring this instruction would infer that it likewise could not use t he fact of Pi c ache’s guilty plea against Garten

. Coupled with the overwhelming evidence against Garten, and the fact that mention of Pi c ache ’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 determin ation of the loss for sentencing purpos es. T he district court found Garten responsible for approximately $6 million in losses, which represented the total amount of money depo sited into National Solution s ’ bank accounts during the time period that Garten was actively participating in the conspi r-18 No. 13

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acy. The district court then enha nced her offense level by 1 8, 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. 201 3). While Garten argues that the $6 million loss was specul ative, the evidence was more than sufficient to support the district court’s finding. Specifically, Brunholtz testified he had reviewed the bank accounts of National Solution s and the net amount (amounts deposited less re funds issued ) t otaled approximately $6 million

. Garten counters that N ational Solutions was involved in some legitimate rental a cti v ities and thus the $6 million in deposits was not all a r esult of fraudulent a ctivities

. But the district court heard te stimony from Garten’s co

- conspirator Atorrasagasti that N ational So lutions was “just one big scam. ” Additionally, Brunholtz had testified at trial that he “looked through pra ctically every document in that busines s,” but did not find any advertising documents or communications between r esort facilities. G arten also did not present any evidence of legitimate activities , m uch less identify a dollar amount of
non
- fraudulent business activities. Under these circumstan ces, 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 tel emarke ting after hearing overwhelming evidence against h er

. There was more than sufficient evidence to support this conviction

. Thus, while it was error for Brunhol t z to testify that PicacheNo. 13

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had pleaded guilty to the same charge since she did not test ify at Garten’s trial, any error was harmless

. There was no error, though, in the district court’s response to Garten’s o bjection to the characterization of the “gross amount” as the amount “stolen.” The district court’s comment, in total, made clear that h e 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 i nvolved between $2.5 and $ 7 mil lion for purposes of senten cing

. The government presented evidence that the net depo sits into National Solutions’ bank accounts totaled approx imately $6 million and that the entire business was a scam

. Therefore, the district court could easily find the en tirety of the net deposits was a loss related to Garten’s offense of conviction

. W e AFFIRM.