      Case: 13-20222      Document: 00512919459         Page: 1    Date Filed: 01/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-20222                        United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                 January 29, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

RICHARD M. PLATO,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-263-1


Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
 I.    FACTUAL AND PROCEDURAL HISTORY
       Defendant Richard M. Plato (“Plato”) appeals his jury convictions for
mail fraud and conspiracy. Broadly speaking, the Government’s charges
against Plato were based on allegations relating to Plato’s role as the President
and CEO of Momentum Production Corporation (“MPC”). 1 Due to the detailed


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1Though Plato’s brief refers to “Momentum Production Company,” rather than
“Corporation,” the record and sales agreement indicate that the actual name is “Corporation.”
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discussion necessary for the issues before us, these sections describe only those
facts critical to understanding the case as a whole. In turn, facts with issue-
specific relevance are set out in the section addressing those issues. Unless
otherwise noted, the following facts are undisputed.
       Plato’s Criminal History. 2 Prior to the events forming the basis of his
conviction, Plato was convicted of several crimes involving fraudulent conduct,
resulting in significant restitution obligations. As discussed further below, the
Government partially based the instant charges against Plato on his failure to
disclose to investors this criminal history and the related restitution
obligations. 3 Plato was released from prison in 2002, with a combined
restitution total of almost $30 million. A former attorney, Plato surrendered
his license to practice law as part of a prior plea agreement.
       MPC Revival. After his release from prison, Plato reinstated MPC, which
had gone dormant since Plato originally formed it in 1992, and began the
primary business of MPC: acquiring mineral leases for shut-in oil and gas
wells, and then refurbishing the wells such that, at least theoretically, MPC
could operate them at a profit. MPC did not turn a profit during 2002 and Plato
testified that, in 2003, MPC reported a negative taxable income of $547,000.


       2 Plato’s trial counsel first objected to the admission of Plato’s prior restitution orders,
not his convictions, and later objected under Federal Rule of Evidence 403 to the testimony
regarding his criminal history. However, Plato does not challenge the admission of this
evidence on appeal, and it is therefore waived. See Adams v. Unione Mediterranea Di Sicurta,
364 F.3d 646, 653 (5th Cir. 2004).
       3 As general counsel for a chemical company, Plato transferred company funds into a

separate account, and used those funds for personal gain. As a result, Plato pleaded guilty to
one count of conspiracy and multiple wire-fraud counts, resulting in a sentence of 57 months’
imprisonment and restitution of $8.8 million. Additionally, Plato pleaded guilty to wire fraud
and two counts of money laundering, resulting in a sentence of 57 months’ imprisonment,
served concurrently with the chemical-company sentence, and restitution of over $16.5
million. Further, based on a check-kiting scheme, Plato later pleaded guilty to four counts of
bank fraud, resulting in a sentence of 30 months’ imprisonment and restitution of $4.8
million.
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During this time, MPC acquired three oil and gas leases in the Robinette
Fields. In 2003, Plato hired John Wagner (“Wagner”) to serve as MPC’s
accountant. Supported by documentary evidence, Wagner testified to MPC’s
consistently poor financial straits, specifically that MPC had a cash shortfall
of $230,000 by the end of 2004; that such six-figure shortfalls were common
because MPC was “continually short of money” from 2003 to 2005; and that
MPC owed six-figure sums to royalty interest holders, totaling $647,000 by the
end of 2005. MPC was not profitable on the basis of these figures alone.
      In addition, moreover, the jury heard evidence that Plato arranged for
significant personal expenditures. Plato and Wagner made payments from
MPC’s operating account to several non-business-related accounts and
entities, and the funds were then used for the benefit of Plato, his wife, and
one of Plato’s mistresses. These entities and accounts included: (1) a billing
account labeled “Suspense,” which was used for non-salary transfers to Plato,
and MPC transfers to Charlotte Donovan, Plato’s mistress; (2) MDP Royalty
Trust, the funds of which were used by Plato’s wife, Micheal Plato; and (3) TRN
Investments, a limited liability company created by Plato, into which Plato and
Wagner transferred funds for the benefit of Plato’s other mistress, Tammy
Norris. MPC also directly transferred funds to a “fishing camp” owned by
Plato’s family. Testimonial and documentary evidence supported Plato
spending over $500,000 of company funds on these accounts and entities by the
end of 2004.
      The Notes and Investors. In 2004, Wagner advised Plato by letter that
the company could not continue operating without additional funds. To raise
money, Plato resorted to a series of investment products (“Notes”), each
secured by a “Fund” comprising an assortment of oil and gas interests. The


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four Funds at issue in this case are: (1) Robinette Fund 1; (2) Robinette Fund
1A; (3) Sullivan City Fund 2; and (4) Febronio Flores Fund 3.
      Plato personally drafted the Notes, which comprised: (1) a promissory
note, agreeing to repay the investment via fixed monthly payments over a fixed
period of time; (2) a security agreement, which described collateral for
repayment in the event of default on the promissory notes; and (3) a
subscription agreement, which nominally made two assurances to investors,
first limiting the number of Notes sold per Fund, and second restricting the
use of the collateral to a single Fund.
      Plato then hired Derek Walker (“Walker”) to market and sell the Notes
as the primary investor contact. Over the subsequent 18 months, MPC raised
approximately $6 million through offering the Notes, with attendant
guaranteed returns to investors of nearly $9 million. During the same period,
MPC earned only $1.36 million from oil and gas revenues. Due to the
insufficiency of income, Wagner and Plato used new-investor money to make
required payments to older investors. At the end of 2005, MPC’s debt exceeded
$1 million, as it added $700,000 in vendor debt upon that which it had already
accrued, and owed royalty interest holders a full $647,000. During that same
time, Plato’s personal expenditures, facilitated through the aforementioned
accounts and entities, exceeded $1 million.
      MPC made its last scheduled payment to investors in November 2006,
but sold its last Note in December 2006. Although MPC later made
intermittent payments, and ultimately settled with a few investors, MPC only
returned $2.7 million of the $6 million invested and many investors did not
recover fully.
      The Trial. In the fourth superseding indictment, the Government
charged Plato with one count of conspiracy to commit mail fraud, seven counts

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of mail fraud, and two counts of securities fraud. The Government presented
testimony from the investors and Plato’s business associates, as well as
documentary evidence. Plato’s challenges involve the following rulings by the
district court during trial: (1) the district court’s denial of Plato’s motion for
judgment of acquittal under Federal Rule of Criminal Procedure 29; (2) the
district court’s grant of the Government’s motion in limine, which prevented
Plato from discussing Walker’s dismissal during closing arguments; (3) the
district court’s admission of testimony by Rani Sabban (“Sabban”), a
government investigator, regarding his investigation of MPC and Plato; (4) the
district court’s admission of testimony by Wagner regarding his and Plato’s
involvement with uncharged crimes of tax fraud, wire fraud, and money
laundering; and (5) the district court’s denial of a jury instruction on puffery.
The district court acquitted Plato on two counts of mail fraud at the close of
the Government’s case based on the lack of testimony of investors involved in
those counts, and acquitted Walker of conspiracy, the only count then
remaining against Walker.
      Conviction and Sentencing. The jury convicted Plato on the five
remaining counts of mail fraud and one count of conspiracy, and acquitted him
of the two counts of securities fraud. The Presentence Investigation Report
(“PSR”) ultimately calculated a total offense level of 35 after applying several
enhancements to which Plato objected at the time of sentencing. 4 After denying
Plato’s objections to the PSR, the district court ordered a within-guidelines
sentence of 235 months’ imprisonment. 5 Plato appeals the denial of his




      4   See USCA5 (SR): 859-61 (PSR delineating enhancements), 926-29 (Plato asserting
objections).
        5 USCA5 (SR): 930 (denial of relevant objections), 939 (sentencing).

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                                  No. 13-20222

objections to the following enhancements: (1) 18 levels for involving a total
actual loss of $3,064,168.64; and (2) two levels for abusing a position of trust.
II.    EVIDENTIARY SUFFICIENCY OF MAIL FRAUD AND CONSPIRACY
       CONVICTIONS

       Plato first argues that the district court erred in denying his motion for
judgment of acquittal under Federal Rule of Criminal Procedure 29,
challenging the evidentiary sufficiency of the counts on which he was
convicted. In doing so, Plato challenges the general sufficiency as to all counts,
but gives special emphasis to the effect of his co-conspirator’s dismissal on his
conspiracy conviction.
       A. Standard of Review
       We review Plato’s preserved sufficiency challenge de novo, viewing “all
evidence, whether circumstantial or direct, in the light most favorable to the
government, with all reasonable inferences and credibility choices to be made
in support of the jury’s verdict.” 6 We must determine whether “a rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.” 7
       B. Mail Fraud
       To sustain a mail fraud conviction under 18 U.S.C. § 1341, “the
Government must demonstrate (1) the defendant devised or intended to devise
a scheme to defraud, (2) the mails were used for the purpose of executing, or
attempting to execute, the scheme, and (3) the falsehoods employed in the
scheme were material.” 8 This court additionally recognizes a specific-intent



       6 United States v. Ford, 558 F.3d 371, 375 (5th Cir. 2009) (per curiam).
       7 Id.
       8 United States v. Umawa Oke Imo, 739 F.3d 226, 236 (5th Cir. 2014) (internal

quotation marks omitted).
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                                      No. 13-20222

requirement        that    the   defendant    “knew     the    scheme     involved     false
representations,” 9 or put otherwise, that a culpable defendant “acts knowingly
with the specific intent to deceive for the purpose of causing pecuniary loss to
another or bringing about some financial gain to himself.” 10
             i.    Use of Mails and Material Falsehoods
       We briefly address the second and third elements, which are not directly
challenged by Plato, before discussing the first element, upon which Plato’s
argument centers. Regarding the second element, “[e]ach separate use of the
mails to further a scheme to defraud is a separate offense.” 11 The Government
need not show that the defendant used or intended the use of the mails, but
merely that the scheme depended on information or documents passing
through the mails. 12 The Government provided ample evidence, both
documentary and testimonial, that the mails were used to market, exchange,
and make payments on the promissory notes.
       Regarding the third element, a statement or omission is material if it
“has a natural tendency to influence, or was capable of influencing, the decision
of the decisionmak[er] to which it was addressed.” 13 Plato’s brief acknowledges
the testimony by investors that they would not have purchased the Notes had
they       known   there    were    errors    or   misrepresentations.       Among       the
misrepresentations alleged at trial and discussed further below, the
Government also included Plato’s failure to disclose to investors his criminal
history, restitution orders, and disbarment, as well as MPC’s financial straits.


       9United States v. Phipps, 595 F.3d 243, 245-46 (5th Cir. 2010).
       10 United States v. Akpan, 407 F.3d 360, 370 (5th Cir. 2005) (internal quotation marks
omitted).
      11 Id. (quoting United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994)).
      12 See id.
      13 Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks

omitted).
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Plato challenges the relevance of the omissions in duty-to-disclose terms,
arguing that he did not have a duty under the mail fraud statute to disclose
this information to prospective noteholders. However, an omission’s
materiality determines whether its nondisclosure can serve as a basis for fraud
and Plato’s argument lacks merit in light of the aforementioned investor
testimony.
           ii.   Evidence of Scheme
       The first element includes, inter alia, a scheme designed “for obtaining
money or property by means of false or fraudulent pretenses, representations,
or promises.” 14 Plato generally argues that the jury heard evidence that his
business was legitimate, that projections to investors were based on sound
drilling-production estimates and profit projections, and that investors were
advised in the Notes that the investment bore risks. Plato claimed to have a
good-faith basis for the misrepresentations by citing his reliance on the
projections of Michael McCoy, an engineer whose estimates indicated a higher
profitability than what actually occurred.
       However, the jury was also presented with evidence of Plato’s
involvement in a scheme to defraud the noteholders. Though the Government
produced evidence that the marketing materials for the Notes misrepresented
the degree of MPC’s ownership in the oil and gas wells, and the investors relied
on those misrepresentations, we need not consider these marketing-material
arguments since the jury was presented with misrepresentations in the Notes
themselves, which were drafted by Plato. Specifically, the evidence showed
that the Notes, drafted by Plato, misrepresented various aspects of the




      14  United States v. Umawa Oke Imo, 739 F.3d 226, 236 (5th Cir. 2014) (quoting United
States v. Ratcliff, 488 F.3d 639, 644 (5th Cir. 2007)).
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                                 No. 13-20222

collateral, including investors’ interest therein, as well as MPC’s ownership
and use thereof.
      Evidence supported oversubscription of the Notes. Though the Robinette
Fund 1 subscription agreement limited issuance to 10 Notes, MPC issued 13;
and while the Robinette Fund 1A subscription agreement limited issuance to
5 Notes, MPC issued 11. Additionally, these funds were cross-securitized in
violation of the terms of the Notes when MPC used the same collateral to
secure both Funds, contrary to the representations in the Funds’ respective
subscription agreements.
      Furthermore, as components of the Notes, the security agreements
stated that the “debtor is owner of the C[o]llateral, free and clear of any lien,
security interest or claim of any kind other than the security interest herein
granted.” The Government argues that this language is a representation of
MPC’s 100 percent ownership in the leases. Plato counters that the “collateral”
described in the Notes is merely MPC’s interest in the lease, and not the lease
as a whole. Even had the jury accepted Plato’s characterization of the collateral
description, that characterization would not prevent the jury from finding
misrepresentations in the Febronio Flores Fund 3 Notes, which listed Hawkins
Ranch collateral in which MPC had no interest at all. Additionally, in light of
the oversubscription and cross-securitization, the accuracy of the ownership
representations does not alter the jury’s ability to find other material
misrepresentations by Plato. We also note that the jury was presented with
the above-described evidence supporting Plato’s misrepresentation on the use
of investors’ funds, which were spent on Plato’s personal expenditures and
repayment of other investors, rather than primarily on the business of
refurbishing and operating wells. In light of this cumulative evidence, the jury


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                                        No. 13-20222

had sufficient evidentiary grounds to reasonably disbelieve Plato and find the
first element satisfied.
            iii.   Specific Intent to Defraud
      Turning to the specific-intent requirement, Plato first asserts that his
efforts to repay the noteholders and refusal to seek bankruptcy protection
indicate that he did not intend to defraud investors; the jury, however, was free
to discredit this evidence in light of the other evidence of knowing
misrepresentations. Insofar as the specific-intent requirement involves
misrepresentations, Plato broadly challenges the evidentiary sufficiency of
those misrepresentations based on the acquittal of Walker, the co-conspirator
alleged in the indictment. Favorably construed, the crux of Plato’s argument is
that Walker, as the primary point of contact with investors, was responsible
for any misrepresentations and that, after Walker’s acquittal, the Government
did not show that Plato “knew the scheme involved false representations.” 15 In
support, Plato points to his testimony that he never advised Walker on
marketing materials, and only had direct contact with one investor, which did
not involve discussion of the Notes.
      However, this argument is fatally undermined by the record evidence
and this court’s precedent. As noted above, the evidence supported numerous
misrepresentations in the Notes themselves, misrepresentations for which
Plato was directly responsible as the drafter of the Notes and President of
MPC. On this basis alone, there is ample evidence for a reasonable jury to find
that these misrepresentations evidenced Plato’s specific intent to defraud the
investors, allowing a rational trier of fact to make the specific-intent finding
that Plato “knowingly acted with the specific intent to deceive.”



      15   United States v. Phipps, 595 F.3d 243, 246 (5th Cir. 2010).
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      C. Conspiracy
      A conviction for conspiracy under 18 U.S.C. § 1349 requires proof that
“(1) two or more persons made an agreement to commit [the offense]; (2) that
the defendant knew the unlawful purpose of the agreement; and (3) that the
defendant joined in the agreement willfully, that is, with the intent to further
the unlawful purpose.” 16 Proof of the foregoing benefits from the following
inferences: agreement from concert of action; voluntary participation from a
collection of circumstances; and knowledge from surrounding circumstances. 17
      Plato first argues for his acquittal on the conspiracy charge as a matter
of law, either because Walker was acquitted as the only named co-conspirator,
or because Wagner was not named as a co-conspirator. For the reasons
explained below, neither argument has merit.
      Citing to Hartzel v. United States, in which the Supreme Court reversed
a conspiracy conviction due to the acquittal of all alleged co-conspirators, 18
Plato asserts that the dismissal of Walker forecloses satisfaction of the first
element. As the Government points out, the overarching distinction between
Hartzel and this case is the exclusivity of the potential co-conspirators as
alleged in the indictment. In Hartzel, the indictment exclusively allowed the
jury to consider those named in the indictment as potential co-conspirators. 19
However, in this case, the indictment’s conspiracy allegation is nonexclusive,
alleging Plato’s conspiracy with “persons known and unknown.” Where an
indictment contains such language, this court has held that a person can be
convicted of conspiring with unknown persons so long as “the indictment



      16 United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012).
      17 See United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009).
      18 See 322 U.S. 680, 682 n.3 (1944).
      19 Id.

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asserts that such other persons exist and the evidence supports their
existence.” 20 The indictment and evidence satisfy those requirements as to
Wagner. 21
       Plato also appears to argue that the conspiracy conviction cannot be
sustained on the theory that Plato conspired with Wagner, rather than Walker,
since Wagner was not charged and only Walker was included in the indictment.
As a matter of law alone, this is inconsistent with this court’s precedent; this
court has repeatedly affirmed conspiracy convictions where the alleged co-
conspirator, like Wagner in this case, was named but not indicted. 22
Additionally, this principle is embodied in the jury instruction leaving open the
possibility for a conspiracy conviction with persons not personally named in
the indictment, to which Plato did not object at the time of trial, and which he
does not address on appeal.




       20  United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976) (citing United States v.
Goodwin, 492 F.2d 1141, 1144 (5th Cir. 1974); Jenkins v. United States, 253 F.2d 710 (5th
Cir. 1958)).
        21 On this point, Plato asserts two related arguments. First, Plato discusses United

States v. Velasquez, in which the Third Circuit remanded a conspiracy charge after finding a
“substantial likelihood” that the conviction was “based on an impermissible determination”
of a conspiracy with a later-acquitted co-conspirator. 885 F.2d 1076, 1091 (3d Cir. 1989). This
argument lacks merit since the facts do not present a substantial likelihood that Plato’s
conviction was based on his conspiracy with Walker because Walker’s dismissal occurred
prior to closing arguments, and during those arguments the Government only asserted the
Plato–Wagner theory, to the exclusion of the Plato–Walker theory. Likewise, Plato relies on
another inapposite case, United States v. Hernandez-Palacios, in which this court held there
was insufficient evidence to support the defendant’s conviction of any individuals other than
those alleged in the indictment. 838 F.2d 1346, 1349 (5th Cir. 1988). This argument is
unavailing since sufficient evidence supported Plato’s conspiracy with Wagner.
        22 See, e.g., United States v. Thomas, 348 F.3d 78, 83-84 (5th Cir. 2003) (rejecting

challenge to conspiracy conviction based on named but unindicted co-conspirator); Lance, 536
F.2d at 1068 (reiterating potential for conspiracy conviction with known-but-not-prosecuted
co-conspirators); United States v. Cabrera, 447 F.2d 956, 957 (5th Cir. 1971) (per curiam).
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         D. Conclusion
         In sum, we conclude that sufficient evidence supported Plato’s conviction
on these counts, such that a rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
III.     RESTRICTION ON CLOSING ARGUMENT

         Prior to closing arguments, the district court granted Walker’s motion
 for acquittal under Federal Rule of Criminal Procedure 29, and then granted
 the Government’s motion in limine preventing Plato from argument based on
 Walker’s dismissal. The transcript of the ruling is as follows:
               THE COURT: All right. Number one, the motion in limine is
         granted in part, denied in part. It’s granted you may not argue
         anything about conspiracy, not even mention him not being here.
         However, I will do what I always do in civil and criminal cases:
         Say, “Ladies and gentlemen, as you will note, Mr. Walker is no
         longer part of this case”; and that’s all I will say.
               MR. COGDELL [Defense Counsel]: To be clear, your Honor,
         you are precluding me from arguing that it’s unlikely or impossible
         for Mr. Plato to have engaged in a conspiracy with Mr. Walker?
               THE COURT: That’s correct.
               MR. COGDELL: Okay.

On appeal, Plato challenges this ruling as a violation of his Sixth Amendment
right to effective assistance of counsel, asserting that it restricted him from
asserting a valid defense theory.
         A. Standard of Review
         A component of the right to effective assistance of counsel is the right to
 make a closing summation to the jury. 23 This court reviews preserved Sixth




         23   See Herring v. New York, 422 U.S. 853, 858 (1975).
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Amendment claims de novo. 24 In this context, “[t]he presiding judge must be
and is given great latitude in . . . limiting the scope of closing summations.” 25
       B. Discussion
       The parties’ dispute is two-fold: (1) whether the scope of the ruling itself
unreasonably curtailed Plato’s closing argument, and (2) whether Plato was
practically prejudiced by not being allowed to address the conspiracy charge.
Though the parties dispute whether Plato argued against the conspiracy
charge in his closing argument, and thus avoided prejudice, the scope inquiry
resolves the prejudice inquiry. We conclude that the district court’s ruling
reasonably curtailed Plato from arguing against the conspiracy charge on the
basis of Walker’s dismissal, such that Plato was able to argue against
conspiracy as to co-conspirators other than Walker, regardless of whether he
actually availed himself of that ability.
       In the motion in limine, the Government sought to prevent Plato from
arguing that Walker’s acquittal prevented Plato’s conviction for conspiracy,
which, it argued, would assert an improper legal conclusion for the reasons
explained above. 26 In his first argument, Plato does not challenge whether a
district court can impose such restrictions, but instead broadly interprets the
language of this ruling as preventing argument against the conspiracy count
regarding any potential co-conspirator. In doing so, Plato relies on the broad
phrasing of the initial component of the district court’s ruling (i.e., “you may
not argue anything about conspiracy[] . . . .”).




       24See United States v. Njoku, 737 F.3d 55, 75 (5th Cir. 2013) (citing United States v.
Templeton, 624 F.3d 215, 223 (5th Cir. 2010)).
      25 Herring, 422 U.S. at 862.
      26 See supra Part II.C.

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                                         No. 13-20222

        However, the context and language of the ruling reasonably limits the
restriction to Walker alone, and Plato’s characterization of the ruling is
overbroad. The subject motion only pertained to Walker and the broad
phrasing is immediately followed by language referencing Walker. Most
weightily, the district court subsequently clarified that its ruling only
prevented Plato from arguing against the likelihood or possibility of Plato
conspiring “with Mr. Walker.” Plato attempts to attribute the qualification
“with Mr. Walker” to the Government’s brief; however, as the transcript
excerpt above makes clear, those words originated from defense counsel’s
question, which both immediately followed the ruling and clarified the scope
thereof.
        The cases cited by Plato in support are distinguishable in two critical
respects. First, given the limited scope of the ruling, Plato was not entirely
prevented from making closing arguments, as was the case in Herring v. New
York. 27 Second, Plato was also not restricted from presenting a valid theory of
defense since the Government did not assert the Plato–Walker theory during
closing argument. We find no error or abuse of discretion shown with regard
to the district court’s grant of the motion in limine.
IV.     ADMISSION OF RANI SABBAN TESTIMONY
        As his third challenge, Plato appeals the jury’s consideration of certain
testimony by Sabban, an investigator for the Texas State Securities Board who
testified as a government witness. Generally, Sabban testified regarding the
financial condition of MPC at various points in time, as well as his
investigation of MPC in his investigator capacity. Plato asserts error in the
admission of three instances of Sabban’s testimony: that Plato was untruthful



        27   Herring, 422 U.S. at 856.
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                                        No. 13-20222

regarding investor awareness of his criminal history; that Plato’s business
practices bore characteristics of a Ponzi scheme; and that certain payments
had characteristics of “lulling payments,” payments meant to placate
investors.
      A. Untruthful Statement
      On direct examination, Sabban testified that, during his investigation,
he had asked Plato “if he had been disclosing his criminal convictions to the
investors,” and that Plato had answered “that some of the investors knew and
some didn’t.” Since some of the investors had independently discovered Plato’s
criminal history, Plato’s response to Sabban’s question was technically true,
and the prosecution did not challenge the veracity of Plato’s response during
direct examination. On cross-examination, defense counsel asked Sabban
whether Plato’s statement was correct; Sabban disagreed, before finally
explaining that he took Plato’s statement as responding affirmatively to his
question (i.e., “as Mr. Plato telling me if he told some of his invest -- some of
the investors, whether they knew or not, and I received conflicting information
later”). The challenged statement came about on re-direct, as follows:
             Q Now, Mr. Cogdell asked you if you thought the Defendant
      was being truthful when he made these statements to you; is that
      right?
             A Yes, sir.
             Q Now, based on your review of this evidence, do you believe
      he was being truthful when he made these statements?
             A No, I do not.

Defense counsel did not object, and we review Plato’s challenge to this
testimony for plain error. 28




      28   See United States v. Williams, 343 F.3d 423, 434 (5th Cir. 2003).
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                                      No. 13-20222

      The Government argues that defense counsel “opened the door” to
Sabban’s opinion testimony on Plato’s truthfulness. We agree. In United States
v. Ruppel, this court found that a series of questions by defense counsel
“[w]hether intentional or not[] . . . conveyed the impression” that an actor in
the conspiracy did not believe the defendant was aware of the activity’s
criminal aspect. 29 In response, the prosecution elicited a specific “No, sir” in
response to the question of whether the actor believed the defendant was aware
of their activity’s criminality. 30 The Ruppel panel did not find error in the
statement’s admission because “counsel may not mislead the jury or convey an
erroneous impression without opening the avenue for cross-interrogation for
purposes of clarification.” 31
      Here, the efforts by defense counsel to establish that Sabban thought
Plato’s response was a “true statement” (when the prosecution had not made
its accuracy an issue during direct examination) ambiguously characterizes
Plato’s response as truthful regarding investor knowledge, or truthful
regarding Plato’s disclosure of the information. This ambiguity “opened the
door” for the challenged statement’s admission as helpful to understand
Sabban’s testimony, and to clarify any erroneous impression of Plato’s
truthfulness in responding to Sabban’s inquiry. We find no error, plain or
otherwise, in the admission of the challenged testimony.
      B. Ponzi Scheme and Lulling Payments
      We now address the Ponzi-scheme and lulling-payments testimony.
Regarding the former, Plato asserts that Sabban was allowed “to give an
opinion that he observed that Mr. Plato was conducting a Ponzi scheme.” Plato



      29 666 F.2d 261, 270 (5th Cir. 1982).
      30 Id.
      31 Id. at 269.

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                                 No. 13-20222

takes the position that a witness may describe the characteristics of a Ponzi
scheme, but that a witness “crosses the line when he is allowed to testify that
the defendant on trial was running a Ponzi scheme.” Plato argues that, once
over the line, Sabban’s testimony was speaking to Plato’s intent, in violation of
Federal Rule of Evidence 704(b)’s prohibition of opinion testimony regarding a
defendant’s intent. The Government counters that Sabban’s testimony was of
the former type and did not cross the line, characterizing the testimony as
merely addressing the definition of a Ponzi scheme and whether Sabban’s
analysis of MPC’s payments and expenses had characteristics of a Ponzi
scheme.
      Regarding lulling payments, Plato similarly charges that Sabban opined
on Plato’s making lulling payments to investors, such that it implicated Plato’s
intent, and the Government similarly argues that Sabban’s testimony was
limited to factual characterizations of payments.
      In the first instance, we conclude that the Government’s characterization
is more consistent with the trial record, such that the admission did not
constitute error. While Sabban’s testimony approached the point of stating
that Plato was conducting a Ponzi scheme or making lulling payments, Sabban
refrained from direct attribution to Plato. Indeed, as the Government points
out, the district court sustained Plato’s objection to a more direct attribution,
when the Government questioned whether Sabban found “characteristics of a
Ponzi scheme in the records concerning MPC.”
      Furthermore, at least regarding the Ponzi-scheme testimony, Plato was
not prejudiced by any error since Wagner later testified to the practice of
paying old investors with new-investor money, testimony which provided
sufficient evidence for a reasonable jury to infer Ponzi-scheme characteristics.
Prejudice from the admission of both instances of testimony was further

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                                 No. 13-20222

prevented through Sabban’s cross-examination by Plato’s counsel. We find no
error in the admission of Sabban’s complained-of testimony and, even
presuming error, find any such error harmless.
V.     ADMISSION OF JOHN WAGNER TESTIMONY
       Plato contends that certain testimony by Wagner was inadmissible, as it
included evidence of extrinsic acts subject to the requirements of Federal Rule
of Evidence 404(b). Plato ambiguously challenges two parts of Wagner’s
testimony. First, Plato challenges Wagner’s testimony on direct examination
that, as Plato’s personal accountant, he assisted Plato in only declaring salary
income for tax purposes, to the exclusion of other income Plato was receiving
from MPC in various forms; as part of this testimony, Wagner admitted his
personal awareness that this was wrong. Second, Plato challenges Wagner’s
testimony on re-direct that he committed five separate crimes with Plato.
Notably, this second instance of testimony referenced Wagner’s testimony on
cross-examination, during which defense counsel asked for “a list of all the
crimes that you say you’ve committed,” followed by inquiries of each crime
individually. Regarding the second instance of testimony, Plato asserts that
Rule 404(b) prohibited such testimony since the Government gave the required
404(b) notice only for Plato’s previous convictions from years prior to the
alleged crimes, while Wagner’s testimony included evidence of extrinsic crimes
subject to notice under Rule 404(b).
       A. Standard of Review
       Though the parties disagree on the applicable standard of review, plain-
error review is appropriate. Plato asserts this court should review the ruling
under a heightened abuse-of-discretion standard, which is appropriate for
properly preserved objections to the admission of evidence under Federal Rule
of Evidence 404(b). The Government counters that the claim should only be

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                                     No. 13-20222

reviewed for plain error because Plato did not object to the testimony at the
time of admission. Though it is true that Plato obtained a running objection,
based on relevance and Federal Rule of Evidence 403, to Wagner’s first
instance of testimony about his tax-preparation work during direct
examination, this objection fails to preserve error as to either instance of
testimony at issue here.
      First, even though the tax-preparation testimony clearly falls within the
scope of the objection, Plato’s bases for that objection at trial were relevance
and Rule 403, while his basis on appeal is Rule 404(b); as a result, no error was
preserved regarding the tax-preparation testimony. 32 Second, regarding the
later, crime-commission testimony, there is no record basis for applying the
running objection to that testimony. 33 Even were we to construe the running
objection as extending to that later testimony, it would yet fail to preserve error
since a different basis is argued on appeal. 34 In sum, since Plato did not
properly object to the challenged testimony, or alternatively asserts a different
basis for objection on appeal, we review Plato’s challenge for plain error.
      B. Discussion
      As a threshold matter, the parties disagree over the application of Rule
404(b) due to competing characterizations of the evidence as intrinsic or
extrinsic. The distinction is critical since Rule 404(b) enumerates purposes for
which extrinsic evidence is admissible, 35 while intrinsic evidence is not subject
to the prohibition of 404(a), nor to the strictures of 404(b), and is generally


      32  See Williams, 343 F.3d at 434 & n.9.
      33  Broadly, the challenged testimony concerns Wagner’s commission of crimes with
Plato, which Wagner listed as tax fraud, mail fraud, wire fraud, money laundering, and
securities fraud; of these, only tax fraud is even tenuously connected to the earlier tax-
preparation testimony to which defense counsel obtained the running objection.
       34 See Williams, 343 F.3d at 434 & n.9.
       35 See FED. R. EVID. 404(b).

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                                       No. 13-20222

admissible. 36 This court defines evidence of another act as intrinsic if the act
relates to the offense in any of three ways: (1) evidence of the other act is
“inextricably intertwined” with that of the offense; or (2) “both acts are part of
a single criminal episode”; or (3) “the other acts were necessary preliminaries
to the crime charged.” 37
        Applying this rubric, we conclude that the challenged testimony qualifies
as intrinsic evidence, falling outside the purview of 404(b). Wagner’s tax-
preparation testimony is “inextricably intertwined” with evidence of the
offense-scheme, since Wagner’s testimony addressed how Plato concealed the
income derived from the offense-scheme on both his personal and MPC’s
corporate tax returns, which furthered the offense-scheme. 38 Second, although
its connection to the offense is more attenuated, Wagner’s testimony of wire
fraud and money laundering is intrinsic as part of the same criminal episode,
since those acts occurred during Wagner’s employment with MPC and as a part
of the offense-scheme. 39 As a result, the testimony was not prohibited under
Rule 404(b) and its admission does not constitute plain error.
VI.     OMISSION OF “PUFFING” INSTRUCTION
        Plato next appeals the decision of the district court not to include a jury
instruction on puffery, which provides as follows:
        A scheme to defraud is not necessarily to be inferred from business
        adversity or unprofitable ventures. Mere puffing, exaggerating

        36 See United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007).
        37 United States v. Freeman, 434 F.3d 369, 374 (5th Cir. 2005) (quoting United States
v. Williams, 900 F.2d 823, 825 (5th Cir. 1990)) (internal quotation marks omitted).
        38 Although not specifically addressed by the parties, Wagner’s tax-preparation

testimony regarding Plato’s personal returns is part-and-parcel with testimony immediately
subsequent which addresses similar concealment on MPC’s corporate tax returns (USCA5
(SR): 702-05).
        39 Cf. Sumlin, 489 F.3d at 690 (rejecting evidentiary characterization as pertaining to

“single criminal episode,” in part due to testimony discussing events removed in time from
offense activity).
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                                       No. 13-20222

       enthusiasm, and high-pressure salesmanship, does not constitute
       legal fraud. This is also true as to unfilled promises, prophecies,
       predictions and erroneous conjecture as to future events
       particularly where some relate to prospective profits from business
       operations.

       A. Standard of Review
       Regarding a district court’s discretion in refusing a proffered jury
instruction, this court affords a trial judge “substantial latitude in formulating
the jury charge,” and reviews jury-instruction refusals for an abuse of
discretion. 40 “The Court may reverse only if the requested instruction ‘(1) is
substantially correct; (2) was not substantially covered in the charge actually
given; and (3) concerns an important point such that failure to give it seriously
impaired the defendant’s ability to effectively present a given defense.’” 41 Even
then, the court will find an abuse of discretion “only if the defendant was
improperly denied an opportunity to convey his case to the jury.” 42
       B. Discussion
       Plato argues that the failure to include this instruction “seriously
impaired” his ability to make the closing argument that Plato lacked criminal
intent when he misrepresented MPC’s profitability and oil production. Plato
primarily relies upon Scott v. United States, in which this court held that the
trial court erred in not giving the instruction requested in this case. 43 For its
part, the Government does not dispute that the puffery instruction is
supported by a sufficient evidentiary foundation, nor that it is substantially
correct. Instead, it argues that puffery was substantially covered in the charge


       40 United States v. Laury, 49 F.3d 145, 152 (5th Cir. 1995) (per curiam) (citing United
States v. Aggarwal, 17 F.3d 737, 745 (5th Cir. 1994)).
       41 Id. (quoting Aggarwal, 17 F.3d at 745).
       42 Id.
       43 263 F.2d 398, 401-02 (5th Cir. 1959).

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                                       No. 13-20222

 given since puffery, limited by definition to expressions of opinion, is excluded
 by the mail-fraud jury instruction, which required “false or fraudulent
 pretenses, representations, or promises.” Relying on Black’s Law Dictionary,
 the Government argues that since “puffing, so long as it remains in the realm
 of opinion or belief, will not support a conviction of false pretenses,” the
 requested instruction was substantially covered in the charge actually given. 44
         Although this argument relies upon a subtle distinction between opinion
 and pretense, in United States v. Simpson, this court affirmed a district court’s
 denial of a puffery instruction in a wire fraud case, reasoning that the issue
 was sufficiently before the jury due to the combination of the jury instructions
 on the offense and the defendant’s closing argument. 45 Similarly, Plato’s
 counsel was able to address the opinion–pretense distinction during his closing
 argument, during which counsel noted that “the valuation of gas wells is
 complex; and it’s subjective. It can be speculative and different people can have
 different interpretations and opinions on it.” As a result, we conclude that the
 puffery instruction was substantially covered, as in Simpson, by the
 combination of the district court’s instruction and defense counsel’s closing
 argument. 46 Accordingly, we find no error in the denial of the instruction.
VII.     SENTENCING ENHANCEMENT APPLICATION
         Plato’s sixth challenge concerns the district court’s enhancements to his
 sentence, but within this single challenge Plato raises two issues which we



          Appellee’s Br. 59 (citing BLACK’S LAW DICTIONARY 1353 (9th ed. 2009)).
         44

          See 440 F. App’x 393, 393-94 (5th Cir. 2011) (per curiam) (citing United States v.
         45

 Laury, 49 F.3d 145, 152 (5th Cir. 1995)).
        46 In any event, the jury was presented with overwhelming evidence of

 misrepresentations relating to collateral oversubscription and cross-securitization in the
 Notes themselves, evidence which cannot be explained as mere marketing-related puffery,
 and thus the failure to give the instruction would be harmless under the circumstances shown
 here.
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                                       No. 13-20222

address separately. First, Plato challenges the district court’s enhancement as
erroneous in its actual-loss calculation. Second, Plato asserts error in the
district    court’s   increasing     his   sentence     based      on     an   abuse-of-trust
enhancement.
       A. Standard of Review
       Broadly, this court reviews a defendant’s sentencing under an abuse-of-
discretion standard. 47 However, we consider the propriety of a district court’s
guideline sentencing range in bipartite fashion, reviewing loss calculations and
factual determinations for clear error, and reviewing legal questions of
guidelines interpretation de novo. 48
       Applying that rubric to the enhancement-specific standards, our
approach to the abuse-of-trust enhancement is bifurcated, applying de novo
review to whether a defendant occupied a position of trust, and clear-error
review to whether the defendant abused that trust, 49 a question involving “a
sophisticated factual determination.” 50 As to the loss-amount calculation, the
parties dispute the standard to apply. Plato asserts that his challenge to the
loss-amount calculation involves a legal question (the method of determining
the amount of loss) requiring de novo review, relying on this court’s opinion in
United States v. Harris. 51 The district court considered whether certain
property, Ricaby Field, qualified as loss-reducing collateral. As explained
below, since that determination concerned questions of fact rather than law,
we review the district court’s loss-amount calculation for clear error.



       47 See United States v. Morrison, 713 F.3d 271, 278 (5th Cir. 2013).
       48 See id. at 279 (citing United States v. Tedder, 81 F.3d 549, 550 (5th Cir. 1996)).
       49 United States v. Kay, 513 F.3d 432, 460 (5th Cir. 2007).
       50 United States v. Wright, 496 F.3d 371, 375 (5th Cir. 2007) (quoting United States v.

Burke, 431 F.3d 883, 889 (5th Cir. 2005)).
       51 597 F.3d 242 (5th Cir. 2010).

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                                      No. 13-20222

      While Harris does stand for the proposition that the legal question of the
loss-calculation method is reviewed de novo, it supports applying clear-error
review to the factual findings at issue in this case. The Harris panel considered
a district court’s decision to aggregate the credit limits of cards used in a credit-
card scheme, toward the end of calculating the intended-loss sentencing
enhancement. 52 The situation required the court “to distinguish an application
of the Sentencing Guidelines from a finding of fact,” 53 with appellants arguing
that the decision to aggregate was an interpretation or application of the
guidelines subject to de novo review, and the Government arguing that such
review would deny appropriate deference to the intended-loss estimates as
factual findings. 54 The Harris panel held that the amount of loss is a factual
finding deserving of deference, 55 but that the court must first review de novo
“whether the trial court’s method of calculating the amount of loss was legally
acceptable.” 56
      The primary distinction between this case and Harris is that the latter
involved an intended-loss calculation, as opposed to the actual-loss calculation
at issue here. In contrast to actual-loss determinations, an intended-loss
determination involves an inherently inferential analysis due to legal
questions of calculation methodology (e.g., the Harris question of whether the
district court erred in inferring intent equal to the face value of jeopardized
property 57). In this case, on the other hand, the dispute at sentencing involved
factual, not legal, determinations. At the time of sentencing, the Government



      52 See id. at 248-49.
      53 Id. at 250.
      54 See id.
      55 See id. at 251 n.9.
      56 Id. at 251 (quoting United States v. Klein, 543 F.3d 206, 214 (5th Cir. 2008)).
      57 See id. at 259-60.

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                                       No. 13-20222

conceded the legal, sentence-reducing impact of a finding that Ricaby Field was
loss-reducing collateral. Instead, the Government challenged the factual bases
of the legal effect, including the ownership of Ricaby Field, the actual value of
the assets, and the reliability of the tax appraisal as evidence of ownership and
value.
       Since the propriety of the enhancement turns on the factual findings
regarding Ricaby’s ownership and valuation, this court reviews the district
court’s amount-of-loss calculation for clear error. 58 Applying clear-error review
to both enhancements “only requires a factual finding to be plausible in light
of the record as a whole,” and this court only finds such error when a review of
all evidence results in “the definite and firm conviction that a mistake has been
committed.” 59
       B. Discussion
            i.    Actual-Loss Calculation
       Pursuant to Sentencing Guidelines § 2B1.1, the sentencing guideline
range incorporates the amount of loss to the victims, calculated as the greater
of actual or intended loss. 60 Plato’s sentence was calculated based on actual
loss, which is “the reasonably foreseeable pecuniary harm that resulted from
the offense.” 61 Pertinent here, Application Note 3(E)(ii) provides that the loss
amount is reduced by the following:
       In a case involving collateral pledged or otherwise provided by the
       defendant, the amount the victim has recovered at the time of
       sentencing from disposition of the collateral, or if the collateral has



       58 See United States v. Mata, 624 F.3d 170, 174 (5th Cir. 2010) (per curiam) (citing
United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005)).
       59 United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (per curiam) (internal

quotation marks omitted).
       60 U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 application n.3(A) (2014).
       61 Id. § 2B1.1, app. n.3(A)(i).

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                                     No. 13-20222

      not been disposed of by that time, the fair market value of the
      collateral at the time of sentencing. 62

      After applying any credits against loss, Sentencing Guidelines § 2B1.1(b)
provides for increases in the offense level based on the final loss calculation;
relevant to Plato’s challenge, a loss calculation of more than $1,000,000 results
in a 16-level increase, while a calculation of more than $2,500,000 results in
an 18-level increase. 63 The district court relied on the loss calculation of
$3,051,777.44 in the PSR. Since this amount was in excess of $2,500,000, the
district court increased the offense level by 18 levels, from 7 to 25.
      Plato asserts that the PSR loss calculation is erroneous, consistent with
his objection at the time of sentencing, and appeals the district court’s reliance
on that calculation. According to Plato, the PSR excludes the value of MPC-
owned assets in Ricaby Field, which, if properly included as collateral credit
against the actual loss, 64 would result in a loss amount below $2,500,000 and
an offense-level increase of 16 rather than 18.
      However, we easily find no merit in this argument. The district court had
ample factual basis to reasonably discredit Ricaby’s classification as a loss-
reducing asset due to questions of Ricaby’s ownership, collateral classification,
and valuation.
      First, evidence did not establish MPC’s ownership of the Ricaby assets.
It is undisputed that MPC previously owned the Ricaby assets until selling
them in 2007. Plato, however, asserts that MPC re-acquired those assets in
2010. In support, Plato cites to an assignment and bill of sale of the Ricaby
assets to “M P C Energy, Inc., a Texas Corporation.” As the Government points



      62 Id. § 2B1.1, app. n.3(E)(ii).
      63 See id. § 2B1.1(b)(1).
      64 Plato asserts that Ricaby Field was an asset of MPC, valued at $1,111,900.

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                                      No. 13-20222

out, however, Plato did not and has not provided any evidence that M P C
Energy, Inc. is related to MPC, and the Notes do not place any obligation on
M P C Energy, Inc. Plato replies that the assignment document has three
references to MPC; yet, MPC is never referenced as a party to the assignment,
and neither is MPC a signatory. 65 As a result, the district court had a
reasonable basis to discredit MPC’s ownership of Ricaby as loss-reducing
collateral.
       Additionally, evidence did not support Ricaby’s classification as
collateral from which investors could recover their losses. Toward this end, the
Government points out that only one Note used Ricaby Field assets as
collateral, and “[o]nly seven of the 18 ‘Lease Name[s]’ in the tax appraisal were
even arguably connected with the assets listed as Note collateral.” In his reply,
Plato argues that Ricaby can serve as collateral to other noteholders, since the
Notes “provided that the collateral was interchangeable.” However, the Note
language that Plato cites in support grants to the note-maker (MPC), not to
the noteholders, “the power and obligation to substitute additional oil and gas
properties to satisfy the payment obligations contained herein”; Plato provides
no basis for inferring that investors holding Notes for which Ricaby is not
collateral were empowered to recoup losses therefrom. The parties do not
discuss an additional point that renders that inference even less meritorious.
As previously discussed, 66 the Notes (specifically the subscription agreements)
expressly restricted the use of collateral to specific Funds, which implies that
the “additional oil and gas properties to satisfy the payment obligations”



       65 See Record Excerpt 13 at pp. 1 (handwritten reference to MPC); 5 (reference to MPC
as signatory of separate “Letter Agreement”); and 8 (referencing MPC as a signatory of
another Letter Agreement, dated April 2, 2009).
       66 See supra Part I.

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                                       No. 13-20222

subject to substitution as collateral would necessarily exclude property, like
Ricaby, which was already pledged as collateral in another Fund.
      Lastly, evidence supported Ricaby’s exclusion from the loss calculation
as essentially valueless. For his part, Plato bases his value estimate on a tax
appraisal valuation, while the Government instead relies on a production-
value report. 67 Plato argues that the production-value report is less credible as
a value metric than the appraisal, since production value would have dropped
since Plato’s arrest and conviction. 68 Additionally, Plato distinguishes United
States v. Nathan, 69 the opinion cited by the Government for the credibility of
more recent value estimates, 70 by noting that the Nathan panel merely
recognized that more recent evidence would have been preferable, but was not
available given the lack of any interim appraisals. 71 Ultimately, however, the
dispute on this point is a factual dispute on the value of the Ricaby assets, and
Plato does not provide sufficient evidence to establish the requisite “definite
and firm conviction that a mistake has been committed.” Accordingly, we
affirm the district court’s finding that the Ricaby assets did not qualify as loss-
reducing collateral for the amount-of-loss calculation.
           ii.   Abuse-of-Trust Enhancement
      We find no error in the district court’s application of Sentencing
Guidelines § 3B1.3. Plato occupied a position of trust as MPC’s President and
Chief Executive Officer, and Plato misallocated company funds for personal
benefit in a manner that facilitated or concealed the offense. Therefore, we
conclude that the district court had ample basis under this court’s precedent


      67 Appellant’s Br. at 64; Appellee’s Br. at 65.
      68 See Reply Br. 17.
      69 318 F. App’x 273 (5th Cir. 2009).
      70 Appellee’s Br. 65.
      71 See Nathan, 318 F. App’x at 275-76.

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                                             No. 13-20222

  to find that Plato occupied a position of trust and abused that position for his
  own personal gain. 72 Accordingly, we find no error in the district court’s
  application of both enhancements.
VIII.     CONCLUSION
          For the foregoing reasons, the judgment and sentence of the district court
  are AFFIRMED in all respects.




          72   See, e.g., United States v. Wright, 496 F.3d 371, 376 (5th Cir. 2007).
                                                   30
