                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 05-2603
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Nancy K. Bistrup,                      *
                                       *
           Appellant.                  *
      ___________
                                           Appeals from the United States
      No. 05-2644                          District Court for the District
      ___________                          of Minnesota.

                                       *
United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Alan K. Bistrup,                       *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: March 15, 2006
                                Filed: April 10, 2006
                                 ___________

Before MURPHY, BOWMAN, and BENTON.
                                    ___________

MURPHY, Circuit Judge.

        Alan and Nancy Bistrup were indicted on federal charges growing out of a
fraudulent investment scheme and the related purchase of a townhouse. They went
to trial before a jury and were convicted of mail fraud, bank fraud, and making false
statements to a financial institution. Alan was also convicted of wire fraud, securities
fraud, and money laundering. The district court1 sentenced Alan to 188 months and
Nancy to time served, and they both appeal. Alan raises sentencing issues while
Nancy argues that the evidence was insufficient as to her and that she is entitled to
a new trial because of trial rulings by the district court. We affirm.

                                           I.

       In 1997 Alan and Nancy Bistrup lived in a small town in southern Minnesota.
Alan owned and operated Eagle Distributing, a company which sold vacuums and
related products, and Nancy was employed as a teller at U.S. Bank in Mankato with
an annual salary of approximately $15,000. Their lives changed after Alan traveled
to the Bahamas to attend a seminar featuring high yielding offshore investment
programs promoted by Global Prosperity. Alan invested in the programs with funds
from the refinancing of the couple's home and their savings accounts. Although he
received some money back on the investments, it was substantially less than the
amount invested. As part of the program, he was able to call a Canadian phone
number for a "fax on demand" which was supposed to update investors on the
progress of their investments.

       After Alan Bistrup returned from the Bahamas and through 2002, he solicited
others to invest in investment programs. He promoted the programs with his lifetime

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                          -2-
friends, golfing partners, family members, and community members, assuring them
that there was no risk and that the investments would yield high returns. He
represented that he would pool the investors' money until it met a minimum threshold
and would then invest the pooled money in the programs. He assured potential
investors that he had successfully invested significant sums of his own money. Over
sixty victims invested more than three million dollars based on these assurances.
Some of them refinanced farms, emptied retirement accounts, and took out high
interest advances on credit cards in order to gather funds to invest. Alan gave some
of them a promissory note on which he had inserted his name as guarantor.

       Although Alan Bistrup transferred a portion of the investors' funds to persons
in Canada, he diverted most of the money to personal use. Nancy recorded the
deposit of investor funds in the couple's checkbook registers, as well as their own
expenditures including living expenses, trips, and Vikings tickets. He paid back only
a small percentage of the early investors with funds he had received from those who
invested later. When his victims sought refunds or payments on their investments,
he told them that the investments were in various places overseas, that it took time to
access their investments, or that the government had temporarily frozen their accounts
due to terrorist attacks. He also gave a few investors access to the fax on demand
reports.

      In late 1998 Alan Bistrup began negotiating the purchase of a townhouse on
the Wilds golf course in Prior Lake from Bruce Nedegaard, a contractor who was
connected to another investment program run by New Century Group. Nedegaard
had built the townhouse for some $1,900,000 in 1995 but it had not sold, and he
agreed to sell it to the Bistrups for $1,100,000. After several failed attempts at
financing, the transaction was arranged through Norwest Mortgage and U.S. Bank,
conditioned on the Bistrups making a down payment of $238,000. Nedegaard and
Alan agreed to a secret arrangement to make it appear that the Bistrups were making
the required down payment on the townhouse. Alan wrote a $190,000 check to

                                         -3-
Nedegaard that was not intended for deposit, but silently agreed to make monthly
payments to Nedegaard over a five year period. Alan requested New Century Group
to wire him $250,000 of the $500,000 he had invested with the group so that it would
appear that the Bistrups had funds to cover the down payment; Alan returned this
money after the closing. In addition to working on the regular mortgage documents,
Alan and Nedegaard also prepared others to memorialize their own personal
arrangement.

       Alan Bistrup prepared a "stated income" mortgage application, which required
disclosure of the couple's employment, income, and liabilities, as well as any other
financing that would apply to the property. The mortgage application did not reflect
either the arrangement with Nedegaard or the promissory notes which Alan Bistrup
had given to the investors. The application listed Nancy Bistrup as debtor because
she had a superior credit rating. It identified both Nancy and Alan as employees of
Eagle Distributing although Nancy did not work for the company. Their monthly
incomes from Eagle Distributing were said to be $10,500 for Nancy and $34,000 for
Alan. Bank records showing average monthly deposits of more than $22,000
accompanied the application. When U.S. Bank requested further verification of their
employment, Alan provided a document stating that Nancy had been employed at
Eagle Distributing since 1987 and Alan since 1981 and that their present salaries were
$150,000 and $223,000 respectively. The signature line was signed Michael
Morrison, the name of a former employee of Eagle Distributing. Neither Alan nor
Nancy were receiving any income from Eagle Distributing when they submitted the
loan applications.

       The Bistrups closed the mortgage transaction on May 21, 1999 with an
employee of Gibraltar Title, a loan closer named Kari Brasel. Alan went to Brasel's
office in Edina to sign the documents, and Brasel traveled with the loan broker to
Mankato to get Nancy's signature. Nancy signed the mortgage documents during her
break from her job as a bank teller. Both Alan and Nancy signed a certification on

                                         -4-
the loan documents that the information provided in the applications was true and
correct and that they understood they could be subject to criminal penalties if the
information was false. They also completed an "affidavit regarding purchasers"
which provided additional false information concerning their employment. Brasel
disbursed the loan proceeds by mail to prior lien holders on the townhouse. The
mortgage payment, including the amount secretly owed each month to Nedegaard,
amounted to over $15,000 per month. Shortly after closing, Alan represented to
potential investors that his investment earnings had enabled the Bistrups to purchase
the luxury townhouse, and he regularly invited victims of his fraud to visit the
townhouse.

       In late 2000 Alan Bistrup worked with the same loan broker at Northwest
Mortgage to refinance the mortgage and draw out equity. They submitted an
application in Nancy Bistrup's name to Lehman Brothers Bank for a "no-doc loan",
which does not require applicants to include information about income but does
require disclosure of any indebtedness or liens on the property. The application
included an owner affidavit listing Eagle Distributing as Nancy's employer and again
failed to reference the secret arrangement with Nedegaard. Lehman Brothers
underwrote the mortgage, which resulted in the Bistrups receiving $116,324.95 in
cash. Alan and Nancy closed the loan at Brasel's office on January 11, 2001, and they
again signed confirmations and affidavits that the application and other documents
were accurate.

        The Bistrups refinanced once more with Lehman Brothers in 2002. The
couple applied under a "stated income" program, requiring them to provide
information regarding their monthly incomes and proof from an accountant that Eagle
Distributing existed. The application represented that Nancy Bistrup was employed
by Eagle Distributing with a monthly income of $35,000 and again failed to disclose
the arrangement with Nedegaard. It also did not disclose tax liabilities that had been
assessed by the state in 2001 for their failure to file tax returns for 1996, 1997, and

                                         -5-
1998. The application contained a statement with the signature of an accountant
which stated that Eagle Distributing continued to operate. The refinanced mortgage
was closed on May 13, 2002 in Brasel's office, and the Bistrups signed confirmations
that the information in the documents was truthful.

       Both Bistrups were indicted in 2003 for crimes relating to the investment
scheme and the mortgages on the townhouse. A second superceding indictment
issued on February 18, 2004 charged Alan Bistrup with seventeen counts of securities
fraud in violation of 15 U.S.C. § 78ff, four counts of wire fraud in violation of 18
U.S.C. §§ 1343 and 2, one count of making a false statement on a loan application in
violation of 18 U.S.C. § 1014, and ten counts of money laundering in violation of 18
U.S.C. § 1956(a)(1). The indictment charged both Alan and Nancy with two counts
of mail fraud in connection with the mortgages from U.S. Bank and Norwest
Mortgage, in violation of 18 U.S.C. § 1341, two counts of bank fraud, in violation of
18 U.S.C. § 1344, and two counts of making false statements on loan applications in
connection with the later mortgages, in violation of 18 U.S.C. § 1014.

       The case proceeded to a joint trial. The government called several victims of
the fraud who testified that Alan Bistrup had lied to them and convinced them to
invest with him by making false statements about his own success and by showing
them his townhouse. They explained to the jury that they trusted Alan's assurances
because they had known him and his family for a long time and had no indication that
he would steal their money. Neither Nancy nor Alan called witnesses of their own,
but Nancy attempted to introduce evidence of an affair of Alan's through cross
examination of government witnesses. The district court excluded the evidence.

      The government witnesses also included the mortgage closer, mortgage broker,
and bank representatives. They testified that Brasel had reviewed the application
information at all three of the mortgage closings with both Bistrups. Brasel
remembered reviewing the information in the 1999 application and having Nancy

                                        -6-
Bistrup sign the documents in a café but the broker thought she signed the documents
on the hood of a vehicle. Representatives from Norwest Mortgage and U.S. Bank
testified that the employment, income, and liabilities of Nancy and Alan were
considered when they decided to finance the original purchase. Sheryl Howe, a
senior vice president for Aurora Loan Services, testified that all the information
provided by the Bistrups was considered in connection with their loan applications
to Lehman Brothers for refinancing, that any indebtedness on the property would
have been considered by the underwriters had it been provided, and that the company
would consider all information provided on a loan application even if some of it had
not been required.

      The government used a handwriting expert to identify the writer of several
documents and gave pretrial notice that it would offer such evidence and that the
expert would identify Nancy Bistrup as the person who made entries in the couple's
check registers and balanced their checking accounts. The government broadened the
scope of its intended expert testimony after Nancy relied on an ignorance defense
during her opening statement and during cross examination of witnesses. The
government then sought to have its expert testify that Nancy had written Eagle
Distributing down as her employer on the 2001 affidavit and that she had signed Alan
Bistrup's name on checks, including those written to Nedegaard. The district court
permitted the testimony except for that identifying the writer of Nedegaard's checks,
although the court indicated that subject could be argued in closing. After the expert
and another witness had testified, Nancy moved for a mistrial on the basis that the
testimony impermissibly informed the jury of the expert's opinion that Nancy had
signed checks to Nedegaard. The court denied the motion but required that the labels
the expert had placed on exhibits to identify the check signer had to be removed
before the case went to the jury.

      The jury returned its verdict on June 16, 2004. It found Alan Bistrup guilty of
two counts of mail fraud, two counts of bank fraud, two counts of false statements on

                                         -7-
loan applications, fifteen counts of securities fraud, four counts of wire fraud, and ten
counts of money laundering. He was acquitted on one count of securities fraud and
one of bank fraud. Nancy Bistrup was convicted of two counts of mail fraud, two
counts of bank fraud, and two counts of false statements on loan applications.

       The district court sentenced Nancy Bistrup to time served2 and two years of
probation for her role in the offenses. It sentenced Alan Bistrup to 188 months after
calculating a guideline range of 151 to 188 months based on a total offense level of
34 and category I criminal history. Three guideline enhancements had been applied
by the district court in arriving at Alan's offense level under the sentencing
guidelines: a two level enhancement for use of sophisticated means in committing
his offenses, a two level vulnerable victim enhancement for soliciting money from the
widowed and elderly, and a two level role enhancement for his role as an organizer
and leader in the fraud.

       On her appeal Nancy Bistrup argues that the evidence was insufficient to
convict her because she had not knowingly attested to misrepresentations in the loan
documents and because the misrepresentations were not material. She asserts that the
district court abused its discretion by permitting the handwriting expert to testify to
anything but the check registers and by not allowing her to introduce evidence of her
husband's affair. Alan Bistrup challenges his sentence, arguing that the district court
erred in finding that he was an organizer or leader and that he used sophisticated
means. He also maintains that we should remand for resentencing because the district
court failed to state an adequate basis for sentencing him at the top of the guideline
range.




      2
       Counsel stated at oral argument that after her indictment Nancy Bistrup had
been detained for several hours by the United States Marshals Service.

                                          -8-
                                          II.

       Nancy Bistrup appeals her conviction, alleging insufficiency of the evidence
because the government failed to prove that she knew there were misrepresentations
on the loan documents or that the misrepresentations were material. She also argues
that she is entitled to a new trial because the district court abused its discretion by
permitting the handwriting expert to testify about more than the check registers and
by excluding evidence of her husband's affair. The government counters that there
was sufficient evidence for the jury to conclude that Nancy had knowingly signed
documents containing misrepresentations and that the lending institutions relied on
the misrepresentations. It maintains that she opened the door at trial to the expert's
testimony and that evidence of her husband's affair lacked probative value.

      We review the evidence underlying a conviction de novo but will uphold a
verdict if it is supported by substantial evidence. United States v. Fitz, 317 F.3d 878,
881 (8th Cir. 2003). In light of the verdict all evidentiary ambiguities and
discrepancies are resolved in favor of the government. United States v. Ramirez, 350
F.3d 780, 783 (8th Cir. 2003).

      Although it was Alan who solicited investors and made the secret arrangement
with Nedegaard to purchase the townhouse, Nancy Bistrup was also significantly
involved in that purchase. There was evidence that she signed loan documents that
contained misrepresentations regarding her income, her employer, and her liabilities.
The jury could find that Nancy knew about the secret agreement with Nedegaard
because she balanced the family checkbook, that she knew that the loan documents
did not reflect the secret agreement with Nedegaard, and that she knew that Alan's
income was illegal because he took in more money from investors than he invested.
There was evidence that a real estate closer explained the mortgage documents to
Nancy at each closing and that in 2001 she had written that Eagle Distributing was
her employer. The court instructed the jury that it could find knowledge if it found

                                          -9-
that Nancy had deliberately closed her eyes to avoid knowing what should have been
obvious. Given the testimony of the witnesses and the circumstances surrounding the
mortgages, we conclude that a jury could have reasonably found that Nancy Bistrup
signed the loan documents knowing that they contained misrepresentations.

       Nancy Bistrup also argues that there was insufficient evidence to support the
bank and mail fraud convictions because the misrepresentations on the mortgages
were not material. Representatives from all three lending institutions testified,
however, that they would have assessed the loan differently had they known that
Nancy only made $15,000 per year working as a bank teller or that the Bistrups had
not actually made the down payment. The Bistrups made the monthly payments with
fraudulently obtained funds from an investment scheme, and the banks would have
viewed the mortgage application differently had they known the source of the funds.
The jury could have reasonably found that the misrepresentations on the loan
documents were material.

      Nancy Bistrup asserts that the district court abused its discretion by allowing
the government's handwriting expert to testify that she had written an "affidavit
regarding owner" listing Eagle Distributing as her employer for the 2001 mortgage
application and that she had signed Alan Bistrup's signature on checks. The
government maintains that Nancy opened the door to this testimony by her ignorance
defense at trial. It also argues that any error in permitting the expert to testify on
these matters was harmless in light of the overwhelming evidence of guilt. We
review a district court's decision to admit expert testimony for an abuse of discretion.
United States v. Parker, 32 F.3d 395, 400 (8th Cir. 1994).

       Prior to trial the government disclosed that it intended to call a handwriting
expert to identify the author of certain writings, including checks and check registers
for the Bistrups' personal accounts. Nancy's attorney told the jury during his opening
statement that Nancy had signed documents without having read them and also

                                         -10-
elicited testimony from government witnesses that Alan had previously signed
Nancy's signature and that Nancy was not aware of the secret arrangement with
Nedegaard. The government then sought to have the expert testify that Nancy wrote
down Eagle Distributing as her employer on her 2001 affidavit and that she had also
signed checks with Alan's name, including some written to Nedegaard. The court
permitted the testimony regarding the affidavit and checks she had signed; it did not
permit the expert to identify the writer of the checks to Nedegaard, however. Nancy's
defense opened the door for this expert testimony, see United States v. Gipson, 862
F.2d 714, 717 (8th Cir. 1988), and she chose not to call her own expert. We conclude
that the district court did not abuse its discretion in admitting the expert evidence.

       Even if the evidence was erroneously admitted, Nancy Bistrup would not be
entitled to a new trial if the evidence was harmless. United States v. Oman, 427 F.3d
1070, 1076 (8th Cir. 2005). An error is harmless if it "does not affect substantial
rights" of the defendant, Fed. R. Crim. P. 52(a), and "did not influence or had only
a slight influence on the verdict." United States v. Carroll, 207 F.3d 465, 470 (8th Cir.
2000). Nancy repeatedly signed loan applications and other documents which falsely
stated her employment, her income, and her liabilities, and the jury received evidence
that she knew about the payments to Nedegaard because she balanced the family
checkbook. Given the overwhelming evidence of guilt, we conclude that any error
in allowing the expert witness to testify that Nancy wrote Eagle Distributing on the
2001 affidavit and signed Alan Bistrup's name to checks was harmless. See United
States v. Smith, 410 F.3d 426, 429 (8th Cir. 2005).

       Finally, Nancy argues that the district court abused its discretion by not
allowing her to introduce evidence of her husband's extramarital affair. She argues
that evidence of the affair would have supported her defense that her husband had
concealed information from her. The government counters that the evidence was
inadmissible character evidence and that any probative value of the evidence was



                                          -11-
outweighed by its prejudicial effect. We review a district court's evidentiary rulings
for an abuse of discretion. United States v. Urbina, 431 F.3d 305, 311 (8th Cir. 2005).

       Under Federal Rule of Evidence 404(a), a party may not introduce evidence of
prior bad acts to prove "action in conformity therewith," but it may be admissible as
"proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." Fed. R. Evid. 404(b). Nancy fails to identify any
exception permitting this evidence to come in, and evidence of the affair would not
have made it less probable that the mortgage closer had explained the documents to
her, that the documents contained false information, or that she signed the documents.
Given the possibility that the affair evidence could have confused or misled the jury
and unfairly prejudiced Alan Bistrup's defense, we conclude that the district court did
not abuse its discretion by excluding evidence of the affair under Rule 403.

                                           III.

       Alan Bistrup raises three issues in respect to his sentence. In the first he argues
that the district court erred by applying an enhancement for use of sophisticated
means. Our review of findings of fact at sentencing is for clear error, United States
v. Mashek, 406 F.3d 1012, 1018 (8th Cir. 2005), and the district court's application
of the guidelines to the facts is reviewed de novo. United States v. Wells, 127 F.3d
739, 744-45 (8th Cir. 1997). Under USSG § 2B1.1(b)(8)(C) (2003), a two level
enhancement should be applied if the offense "otherwise involved sophisticated
means." Sophisticated means involves "especially complex or especially intricate
offense conduct pertaining to the execution or concealment or an offense." Id. cmt.
7. Even if any single step is not complicated, repetitive and coordinated conduct can
amount to a sophisticated scheme. United States v. Finck, 407 F.3d 908, 915 (8th Cir.
2005). While some of Alan's individual acts may not have been particularly
sophisticated, there were complexities in his overall scheme. He repeatedly lied to
his victims, maintained the fraud by using funds from later investors to make partial

                                          -12-
payments to earlier victims, and used different financial accounts to maintain and
conceal the fraud. Given the extent of the fraudulent scheme, the coordination and
planning needed to maintain the scheme for almost five years, and the complexity
involved in convincing the banks that the Bistrups had well paying jobs and had
provided Nedegaard with a down payment while concealing the five year payment
plan, the district court did not err in enhancing Alan's sentence for use of
sophisticated means.

       Alan also argues that the court erred in applying an enhancement for his role
in the offense. He contends that Nedegaard arranged the contract for deed
arrangement and that he never directed Nancy's actions. Under USSG § 3B1.1, a
defendant's offense level can be increased by two levels if he was an organizer or
leader of a criminal activity. A defendant must have at least directed or procured the
aid of others for the enhancement to apply. United States v. Encee, 256 F.3d 852, 854
(8th Cir. 2001). Alan approached Nedegaard about the townhouse and initiated the
move to Prior Lake. He used the townhouse to lure investors and would have been
unable to purchase it without drawing from his own investments had he not been able
to involve Nedegaard in the sham transaction and his wife in signing the fraudulent
loan documents. A defendant need not exercise direct control for a role enhancement
to apply. United States v. Miller, 91 F.3d 1160, 1164 (8th Cir. 1996). We conclude
that the evidence supports the role enhancement and that the district court did not err
by finding Alan was a leader in the fraud.

       Alan Bistrup also contends that he is entitled to resentencing because the
district court sentenced him at the top of the guideline range without an adequate
statement of reasons in violation of 18 U.S.C. § 3553(c). The district court
determined that the sentencing range applicable to Alan was 151to188 months and
sentenced him to 188 months. Section 3553(c)(1) requires a sentencing court to
"state in open court the reasons for its imposition of the particular sentence" if the



                                         -13-
sentencing range exceeds 24 months. United States v. Dumorney, 949 F.2d 997, 997
(8th Cir. 1991). The court stated at the hearing that it had:

      considered the statutory sentence and considerations set forth in 18
      United States Code, Section 3553(a), which include the nature and
      circumstances of the offense and the history and characteristics of the
      defendant . . . that the sentence imposed is reasonable and appropriate
      and reflects the seriousness of the offense, promotes respect for the law,
      and provides just punishment

        Since Alan failed to raise this objection at sentencing, we review for plain
error. United States v. Babiar, 410 F.3d 432, 434 (8th Cir. 2005). To establish plain
error, Alan must establish (1) an error, (2) that was clear or obvious, and not only (3)
affected his substantial rights, but also (4) seriously affected the fairness, integrity,
or public reputation of the judicial proceedings. Id. Since he was sentenced within
the guideline range, his sentence is presumptively reasonable, United States v.
Lincoln, 413 F.3d 716, 717 (8th Cir. 2005), and the district court stated its reasons for
imposing a 188 month sentence after hearing all of the evidence, reviewing the
presentence report, determining the applicability of sentencing enhancements, and
calculating a guideline sentence. It is not necessary for a sentencing court to repeat
all of its findings when it decides on a specific term of imprisonment. We recognize
that the parties, the United States Sentencing Commission, and the administration of
justice would benefit from more detailed and tailored statements of reasons, see
United States v. Engler, 422 F.3d 692, 696-97 (8th Cir. 2005), but Alan has not
shown that the district court committed plain error by failing to do so in his case.



                                          IV.

      Since we conclude that the evidence was sufficient to uphold Nancy Bistrup's
convictions, that the district court did not abuse its discretion in its evidentiary

                                          -14-
rulings, and that there was no reversible error in Alan Bistrup's sentencing, we affirm
the judgments of the district court.
                        ______________________________




                                         -15-
