          Case: 16-17543   Date Filed: 01/08/2019   Page: 1 of 37


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17543
                      ________________________

                  D.C. Docket No. 9:07-cr-80021-DPG-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

versus

KERRI L. KALEY,

                                                        Defendant - Appellant.


                      ________________________

                            No. 17-11061
                      ________________________

                  D.C. Docket No. 9:07-cr-80021-DPG-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,
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versus

KERRI L. KALEY,

                                                               Defendant - Appellant.

                             ________________________

                     Appeals from the United States District Court
                         for the Southern District of Florida
                            ________________________

                                   (January 8, 2019)

Before ROSENBAUM, HULL and, JULIE CARNES, Circuit Judges.

PER CURIAM:

         This criminal case concerns a scheme to steal and resell prescription medical

devices on the grey market. Its long procedural history includes prior trips to this

Court. In a jury trial that occurred during the course of these earlier proceedings,

Appellant Kerri Kaley was convicted of witness tampering, but the jury could not

reach agreement on charges of conspiracy to transport stolen prescription medical

devices, interstate transportation of stolen property, and money laundering. So more

recently, in the latest chapter of this case, a jury trial on these remaining charges

occurred. The jury found Kaley guilty on all counts, and she was later sentenced to

36 months’ imprisonment. As relevant to this appeal, the district court also ordered

Kaley to pay $821,420 in restitution.




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       Kaley now appeals her convictions on various grounds. First, Kaley asserts

that the government violated her due-process rights by arguing a theory of

prosecution against her that differed from the theory of prosecution it presented in a

separate trial against one of her alleged coconspirators and by declining to allow

Kaley to highlight this situation to the jury.        Second, Kaley challenges the

sufficiency of the evidence supporting her conviction for witness tampering in the

original trial. Third, she contends that that the district court erred during her second

trial when it limited cross-examination of a government witness and allowed the

government to use a demonstrative chart during closing arguments. And finally,

Kaley takes issue with the district court’s calculation of the victim’s losses and its

order requiring Kaley to pay restitution in the amount of $841,420.

       After careful consideration, and with the benefit of oral argument, we affirm

in all respects.

                                   I.     Background

A.     The Scheme

       Kaley was employed by Ethicon Endo-Surgery, Inc. (“Ethicon”), as a

supervisor who oversaw other Ethicon sales representatives. Ethicon, in turn, sold

prescription medical devices (“PMDs”) to its medical clients, such as hospitals.

       As alleged by the government, Kaley conspired with her subordinates and

directed them to stealthfully obtain significant quantities of PMDs from hospitals in


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the New York area. These hospitals were clients of Ethicon, and the coconspirator

sales representatives were alleged to have taken the products from the hospitals

without the hospitals’ knowledge or permission. According to the government, to

effectuate the scheme, Kaley’s sales representatives tricked hospitals into to buying

more Ethicon products than they actually needed, so the hospitals would not miss

supplies the coconspirators took from them.

      The hospitals stored the boxed PMDs in supply rooms, and the sales

representatives had access to these areas. Through their access, the conspirator sales

representatives were allegedly able to take products to provide to Kaley for resale

on the grey market. The evidence at trial ultimately revealed that once Kaley

received the PMDs, she provided them to a company called F&S Medical, Inc.

("F&S"), located in Delray Beach, Florida. F&S was owned and run by a former

Ethicon employee, John Keith Danks, who sold the products on the grey market.

B.    Procedural History

      1.     Kaley’s Trials and Co-Conspirator Jennifer Gruenstrass’s Trial

      Kaley, her husband, and Kaley’s co-worker Jennifer Gruenstrass were

indicted for engaging in a conspiracy to transport stolen PMDs, interstate

transportation of stolen property, conspiracy to commit money laundering, and

witness tampering. They pled not guilty and proceeded to trial in a piecemeal




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fashion. Other co-conspirators, including Danks, were charged separately for their

participation in the scheme and pled guilty.

       The government tried Gruenstrass individually in 2007, and the jury acquitted

her of all charges (the “Gruenstrass Trial”). 1 Years later, in 2014, the government

tried Kaley and her husband together. At the conclusion of the trial, the jury found

Kaley guilty of witness tampering, but the jury failed to reach a verdict on the other

counts relating to conspiracy and theft (the “2014 Trial”). Kaley’s husband was

acquitted on the money laundering and witness tampering counts, but the jury was

hung as to the remaining counts.2 The government decided to re-try Kaley separate

from her husband, and that trial took place in 2016. At the conclusion of Kaley’s

2016 trial, the jury convicted Kaley of the remaining counts (the “2016 Retrial”).

Because the evidence adduced at Kaley’s 2016 Retrial is important to various issues

in this appeal, we review that evidence here.

       2.      Kaley’s 2016 Retrial

       During Kaley’s 2016 Retrial, Danks testified that after working for Ethicon,

he started his own business, F&S, which bought and sold existing medical devices.

Danks explained that he began purchasing supplies from Kaley in around 2000, and



       1
         We discuss the relevant details of Gruenstrass’s trial later in this opinion, in addressing
Kaley’s contention that her due-process rights were violated when the government argued a theory
of prosecution against her that differed from that presented against Gruenstrass.
       2
         We discuss the relevant details of the 2014 Trial below, when we consider Kaley’s
argument concerning the sufficiency of the evidence supporting the witness-tampering conviction.
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his business with Kaley halted near the end of 2004 or the beginning of 2005, when

federal authorities raided his home.          Danks testified that he paid Kaley

approximately $1.6 to $1.7 million from 2002 to 2004 for the products she provided.

But he noted the value of these products he purchased from Kaley was approximately

$10 million.

      Three Ethicon sales representatives, who were part of the scheme, also

cooperated and testified for the government during Kaley’s 2016 Retrial.

      Alan Schmidt testified that he was a sales representative for Ethicon and sold

products to hospitals, including New York Methodist (“NYM”). According to

Schmidt, beginning in 1998, Kaley solicited him to provide her with medical devices

to sell for their mutual benefit. Schmidt explained that without their authorization,

he took products off shelves from hospitals in his territory, put those products in his

bag, gave them to Kaley, and she sold them and paid him with checks. Schmidt

admitted entering hospitals and stealing products dozens of times.

      Next, Frank Tarsia testified that, while working as a sales representative for

Ethicon in the latter part of 2003 to the end of 2004, he was assigned to several New

York hospitals, including NYM. Like Schmidt, Tarsia recounted that he provided

PMDs to Kaley to sell for their personal gain. He stated, when he visited hospitals,

he would simply walk out of the storage rooms with the products in a large bag. To

take the products without detection, Tarsia made inflated recommendations to


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hospitals about the quantity of Ethicon products that they should order. Schmidt

assisted Tarsia and superseded him as a sales representative for NYM. And Tarsia

knew that Schmidt later supplied Kaley with medical devices as well. On cross-

examination, Tarsia acknowledged that he previously told a grand jury that the

PMDs he gave Kaley were extra products that the hospitals did not want and that he

also gave her samples.

      Finally, former sales representative Roni Keskinyan testified that she worked

for Ethicon from 2001-2005 in the New York City area. Keskinyan explained that

she acquired products for Kaley, who then paid her by check. As with the other

representatives, Keskinyan admitted that she did not ask permission from the

hospitals to take the products she provided to Kaley. Keskinyan also conceded that

she lied to hospital staff—telling them that she needed the products for another

hospital—to take the products.

      In addition to these sales representatives, Michael Sharp, the director of

materials management at NYM testified.         He stated that in 2006, he became

concerned about inventory control with respect to Ethicon products. He had been

informed that a neighboring hospital had a loss issue and had the same sales

representative, Frank Tarsia, which led him to investigate whether NYM had been

victimized. Sharp contacted Ethicon and asked it to provide NYM with its spending

data for 2003 to 2005, and it complied. Sharp double checked NYM's records and


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found that the number of surgeries using Ethicon products was essentially flat but

that a significant increase in the purchases of the Ethicon products had occurred in

2004.

        The government attempted to introduce through Sharp a spreadsheet

reflecting the numbers to which Sharp testified, but the court ruled that the

spreadsheet was not admissible because neither Sharp nor NYM had prepared it. As

a result, Sharp testified based on his recollection. Sharp testified that 94 procedures

involving Ethicon products were performed in 2003, 96 in 2004, and 94 in 2005.

Sharp reviewed NYM's financial data. He noted that the payments for devices used

in those operations for 2003 were approximately $950,000, for 2004 were $2.1

million, and for 2005 were $1.3 million.         Sharp could not explain why the

expenditures varied so widely, but he noted that Tarsia was the sales representative

for Ethicon during 2003 and 2004.

                                   II.    Discussion

A.      The government did not violate Kaley’s due-process rights by arguing a
        different theory of prosecution in Kaley’s 2016 Retrial from the theory it
        pursued in the Gruenstrass Trial.

        We begin with Kaley’s claim that the government presented inconsistent

theories of prosecution in her 2016 Retrial, on the one hand, and in the 2007 trial of

coconspirator Gruenstrass, on the other. In the Gruenstrass Trial, the government

contended that the victim of theft was her employer, Ethicon. But in Kaley’s trials,


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the government asserted that the hospitals were the victims of the theft. Kaley argues

this change in the way the government argued its case violated her due-process

rights, and she urges us to reverse and vacate her convictions. Alternatively, Kaley

claims she is entitled to a new trial at which she should be permitted to introduce

statements made during the Gruenstrass Trial to highlight the government’s

allegedly inconsistent positions. We disagree.

                                             1.

       We assume without deciding that we can dismiss an indictment or otherwise

vacate a conviction based on the government’s use of inconsistent theories of

prosecution. See, e.g., United States v. Dickerson, 248 F.3d 1036, 1043 (11th Cir.

2001) (recognizing a line of cases that have raised concerns about the “Due Process

implications of separate prosecutions for the same crime under contradictory

theories or inconsistent factual premises.”); 3 Drake v. Kemp, 762 F.2d 1449, 1470

(11th Cir. 1985) (en banc) (Clark, J., concurring) (suggesting that the use of “totally

inconsistent” theories in a case may constitute a “fundamental and egregious error”

that violates due process). But see United States v. Hill, 643 F.3d 807, 832 (11th

Cir. 2011) (opining that “it is not at all plain that a defendant has a right to prevent




       3
           The panel in Dickerson noted that “neither the Supreme Court nor this court has
addressed the constitutional implications of inconsistent litigation positions taken by the
Government against defendants being tried separately for the same crime.” Dickerson, 248 F.3d
at 1043 n.6.
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the prosecution from using inconsistent theories to prosecute two separately tried

defendants charged with the same crime.”); Bradshaw v. Stumpf, 545 U.S. 175, 190

(2005) (Thomas, J., concurring) (“This Court has never hinted, much less held, that

the Due Process Clause prevents a State from prosecuting defendants based on

inconsistent theories.”).

      But our assumption does not help Kaley. Although the government advanced

different theories of who Kaley’s victim was versus who Gruenstrass’s was, under

the evidence presented here, the theories of the case were not inherently

contradictory or mutually exclusive, and both theories were consistent with the

indictment.

      Indeed, the theories were supported by the respective proof pertaining to each

defendant. Gruenstrass’s participation in the conspiracy appears to have differed

from the other sales representatives’ in an important respect:            Gruenstrass

purportedly acquired products with the hospitals’ knowledge. When she did so,

however, she was required to return these excess products to Ethicon. When

Gruenstrass failed to return them, Gruenstrass’s victim, as a matter of fact, was

allegedly Ethicon, not the hospitals.

      In contrast, during the 2014 Trial and 2016 Retrial, as we have explained, the

government presented the testimony of coconspiring Ethicon sales representatives

who admitted to primarily obtaining products by stealing from—and thus


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victimizing—the hospitals they were supposed to service. In other words, the

conspiracy Kaley was convicted of had more than one victim, depending on the

salesperson who acquired the ill-gotten goods.

      Moreover, the government’s filing reflected this from the outset.              The

Superseding Indictment, for example, alleged that the coconspirators, “in the course

of their activities as Ethicon employees and otherwise, without the knowledge of

Ethicon, secured control and possession of significant quantities of [PMDs] . . . .” It

continued, “The PMDs were acquired through a variety of means, including, inter

alia, retaining PMDs that were manufactured by companies other than Ethicon when

medical facilities converted to the use of Ethicon devices; Ethicon manufactured

PMDs recovered from customer facilities when alternative or later model versions

were substituted for earlier models; acquisition of PMDs as ‘samples’ secured

directly from Ethicon . . . ; and theft of said devices from the facilities of customers.”

      Similarly, when the government filed its original bill of particulars as to

Gruenstrass, it alleged that the victims were both hospitals and Ethicon. Only when

Gruenstrass sought more specific information about the charges as they pertained to

her alone did the government respond by stating that “solely with respect to the

defendant . . . Gruenstrass, that the victim as to each of Counts 2 through 6 was

Ethicon, Inc.” That the government apparently made a strategic decision to narrow

its focus of its proof against Kaley to the PMDs stolen from the hospitals instead of


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on all PMDs stolen and resold by the conspiracy, regardless of the particular victim,

did not render its theories at Kaley’s trials and the Gruenstrass Trial in conflict. See

United States v. Cornillie, 92 F.3d 1108, 1110 (11th Cir. 1996) (per curiam) (“the

government may plead the offense conjunctively and satisfy its burden of proof by

any one of the means”).

      In fact, in both trials, the proof of Kaley’s conduct was the same—she solicited

sales representatives to take PMDs from hospitals and give them to her so she could

arrange for Danks to sell the devices on the grey market.            The government

maintained consistently that Kaley and the sales representatives working for her had

no right to take the products or resell them for personal gain, no matter who the

victim was (Ethicon or the hospitals). This remained the government’s unvarying

position with respect to each of the trials. And regardless of whether Ethicon or the

hospitals owned the PMDs, it was clear that Kaley did not.

      Even during the government’s opening statement in the Gruenstrass Trial, the

government argued that Kaley was dealing in “stolen devices” since she had “no

right, title and interest in any of that equipment that she was selling.” This was the

same position that the government took in Kaley’s trials years later. Because the

government’s position in the 2016 Retrial was not fundamentally inconsistent with

the theory advanced in the Gruenstrass Trial, no due-process violation occurred, and

the district court properly denied Kaley’s motion to dismiss the indictment.


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                                          2.

      Kaley next asserts that even if she cannot prevail on her due-process

argument, the district court still erred when it did not allow her to highlight the

alleged change in the government’s theory. She emphasizes that the government

filed a bill of particulars in Gruenstrass’s case in which it specifically identified

Ethicon as the victim of theft. In Kaley’s view, statements made by the government

in Gruenstrass’s case should be admissible under Rule 801(d)(2), Fed. R. Evid., as

statements by a party opponent.

      In support of her arguments, Kaley relies on United States v. GAF Corp., 928

F.2d 1253, 1259-60 (2d Cir. 1991), a case in which the Second Circuit allowed a

defendant to introduce a bill of particulars against the government. Kaley also points

to the Second Circuit’s decisions in United States v. McKeon, 738 F.2d 26 (2d Cir.

1984), and United States v. Salerno, 937 F.2d 797, 811 (2d Cir. 1991), rev’d on other

grounds, 505 U.S. 317 (1992), where the court discussed circumstances under which

statements by counsel may be admissible against a client. In Salerno, which also

discussed the decision in McKeon, the Second Circuit stated that, in determining

admissibility, it looks to (1) whether the prior statement involves a factual assertion

inconsistent with the prosecution’s later assertions in a subsequent trial; (2) whether

the prosecutor’s statements were the equivalent of a client’s testimonial statements;

and (3) whether the court can find by a preponderance of the evidence that the


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inconsistent statement fairly supports the inference to be drawn and is not subject to

innocent explanation. Salerno, 937 F.2d at 811.

       These Second Circuit cases do not help Kaley. Even assuming without

deciding that we should adopt their reasoning,4 the circumstances here do not satisfy

the Second Circuit’s test.

       In particular and as we have discussed, the government’s statements in the

Gruenstrass Trial do not involve factual assertions inconsistent with the

prosecution’s later assertions, even if we assume without deciding that they were the

equivalent of a client’s testimonial statements. In other words, no fundamental

inconsistency existed between the government’s theory of the case in the

Gruenstrass Trial and Kaley’s 2016 Retrial.

       Plus, even if we were to overlook this deficiency in Kaley’s argument, the

district court was within its discretion when it alternatively barred these statements

under Rule 403, Fed. R. Evid. Rule 403 permits district courts to exclude evidence




       4
         Contrary to Kaley’s assessment that we have “seemingly aligned” with McKeon and
Salerno, we have not had reason to opine on that. United States v. DeLoach, 34 F.3d 1001 (11th
Cir. 1994) (per curiam), a case upon which Kaley relies, does not demonstrate the contrary.
Though the appellant there relied on the standard enunciated in McKeon and Salerno, id. at 1005,
we did not adopt the Second Circuit’s standard. Instead, we assumed, without finding, that the
Second Circuit standard applied. Id. Kaley’s reliance on our decision in United States v. Kendrick,
682 F.3d 974 (11th Cir. 2012), is also misplaced. In Kendrick, the panel pointed out that our
decision in DeLoach “did not expressly adopt” the Second Circuit’s standard, but rather, it merely
concluded that, even assuming the standard applied, the defendant’s argument failed. Id. at 987-
88.
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“if its probative value is substantially outweighed” by its prejudicial effect or risks

of confusing the issues or misleading the jury.

      Here, the district court reached the conclusion that any probative value of the

statements was substantially outweighed by the statements’ prejudicial effects. We

cannot find that the district court erred when it made this determination.

      To begin with, the probative value of the prosecutor’s statements at the

Gruenstrass Trial was low because the circumstances of that trial were quite different

than at Kaley’s 2016 Retrial. As we have noted, Gruenstrass contended that the

hospitals voluntarily provided to her the products she sold to Kaley. In contrast, the

coconspirators in Kaley’s 2016 Retrial claimed that they “walked out” of the

hospitals with products without the hospitals’ knowledge.

      Furthermore, the district court had already ruled that Kaley could not present

Gruenstrass’s acquittal to the jury, and introducing the challenged statements ran a

serious risk of violating that ruling.

      Finally, considering the scope of the conspiracy and the government’s focus

in Kaley’s trials on the victimization of the hospitals, we cannot conclude that the

district court abused its discretion in determining that allowing the presentation of

statements extracted from the Gruenstrass Trial—a prosecution that focused on the

harm to Ethicon as a victim—may well have misled or confused the jury.

Consequently, even if these statements were otherwise admissible, the district could


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did not abuse its discretion in excluding them under Rule 403, given their low

probative value versus the potential creation of confusion. SeeKendrick, 682 F.3d

at 988 (upholding exclusion of prosecutor’s statements at a prior trial because they

posed high risks of confusing the jury by introducing “an entirely new set of

evidence and hypotheses”); see also United States v. Delgado, 903 F.2d 1495, 1499

(11th Cir. 1990).

      In sum, the government did not violate Kaley’s due-process rights, and the

district court did not err when it denied Kaley’s request to refer to arguments made

by the government in Gruenstrass’s prior trial and in the revised Gruenstrass bill of

particulars.

B.    Evidence adduced at Kaley’s 2014 Trial was sufficient to support her
      conviction for witness tampering.

      Kaley also claims that the evidence presented at her 2014 Trial did not support

a conviction for witness tampering under 18 U.S.C. § 1512(b)(3) and contends the

government improperly referred to this count during proceedings as “obstruction of

justice” rather than witness tampering because it recognized the weakness in its

witness-tampering count. Kaley further asserts that the district court improperly

instructed the jury and suggests the improper instruction played a part in Kaley’s

conviction for witness tampering. Again, we disagree.

                                         1.



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      We review challenges to sufficiency of the evidence de novo, but in doing so

assess the evidence in the light most favorable to the government. United States v.

Grzybowicz, 747 F.3d 1296, 1304 (11th Cir. 2014). Section 1512(b)(3)—the statute

under which Kaley was charged—provides as follows:

             Whoever knowingly uses intimidation, threatens, or
             corruptly persuades another person, or attempts to do so,
             or engages in misleading conduct toward another person,
             with intent to--

                                        ***

             (3) hinder, delay, or prevent the communication to a law
             enforcement officer or judge of the United States of
             information relating to the commission or possible
             commission of a Federal offense . . . [shall commit a
             crime].

18 U.S.C. § 1512(b)(3). The term “misleading conduct” encompasses “knowingly

making a false statement.” See § 1515(a)(3)(A). To prove the offense of witness

tampering, the government must show that the defendant knowingly and willfully

(1) attempted to corruptly persuade a person, (2) with the intent to hinder, delay or

prevent the communication of information to a federal official, (3) about the

commission or the possible commission of a federal crime. See United States v.

Tampas, 493 F.3d 1291, 1300 (11th Cir. 2007)). The record here reveals that the

government met its burden to establish these elements.

      Trial testimony established that Kaley knew as early as January 2005 that a

federal agency was investigating her dealings with Danks and F&S Medical. During
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this timeframe, following an FDA raid of Danks’s house, Special Agent Julie

Pohutsky went to Kaley’s home to speak with her. At that time, Kaley indicated to

Pohutsky that she was expecting to see her because Kaley’s employer told her that a

federal agent was coming to speak with her. 5 When Pohutsky spoke with Kaley,

though, Kaley denied knowing Danks or ever having heard of F&S Medical. Kaley

also denied that she ever shipped PMDs to Danks.

       At around the same time, Danks placed a call to Kaley. The call was recorded

because, at that time, Danks was already cooperating with the FDA. During the

phone call, Kaley seemed nervous that her name had been given to the FBI 6 and

asked Danks if he had provided her name to anyone. Kaley also stated, however,

that she was “very confident” that her suppliers would not have provided her name

to federal authorities.

       Testimony 7 also revealed that Kaley had contacted her coconspirators

(including Keskinyan, Tarsia, and Schmidt) at around the same time to meet and

discuss the impending investigation. Keskinyan testified that in January 2005, Kaley

called her because she was concerned that federal agents were coming to see her.

As a result of this concern, Kaley scheduled meetings with her coconspirators.




       5
          Kaley mistakenly thought the agency investigating the scheme was the FBI.
       6
          Again, Kaley mistakenly thought the agency was the FBI, not the FDA.
        7
          Because Kaley was convicted of witness tampering during the 2014 Trial, all testimony
cited in this opinion comes from the testimony of witnesses during that trial.
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According to Keskinyan, during the meetings, the group discussed concealing that

they were engaged in the theft of PMDs and agreed to tell a uniform story if

questioned. The group also discussed obtaining “burner phones” so they could

communicate among themselves without being detected. Keskinyan further reported

during her testimony that Kaley told the group not to talk to federal agents if

contacted, but if they were pressed by agents, to tell a “false story” that the hospitals

were giving them some of the PMDs because they did not need them anymore.

Finally, Keskinyan testified that she agreed not to tell the truth.

       Tarsia corroborated the testimony that Kaley had called various meetings with

the coconspirators after she realized that federal investigators were on to her. Tarsia

indicated that Kaley called him and told him that there “might be a problem” and

that they “should get together.” According to Tarsia, Kaley sounded “concern[ed]”

and “scared.” Tarsia described various meetings during which the coconspirators

agreed to “stick-to-the-same-story” 8 about the products they were stealing (i.e., that

they were receiving sample products from the hospitals), and the coconspirators

agreed to lie. Tarsia also recounted how Kaley had called a later meeting with the

group, and they again discussed concealing what happened with the products.



       8
         Kaley asserts that Tarsia’s testimony about “stick[ing] to the same story” “occurred in the
context of [Kaley’s] talking with her ‘superiors’ at Ethicon and not law enforcement.” We have
carefully reviewed the testimony and disagree. Tarsia’s testimony concerns Kaley’s instructions
to the coconspirators at a meeting she called and held in her living room; it does not purport to
represent that Kaley said her “superiors” at Ethicon told her to “stick to the same story.”
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Finally, Tarsia testified that he assisted Kaley and her husband with moving the stock

of Ethicon PMDs from the Kaleys’ garage so that law-enforcement agents would not

find the products.

      Schmidt, who was also present at the meetings, agreed that Kaley called these

meetings after being “tipped off” about the investigation. Schmidt did not recall a

discussion of telling a false story to agents but testified that the group discussed

obtaining burner phones so their conversations would not be detected by federal

agents.

      This evidence, taken in the light most favorable to the government, supports

a finding of witness tampering under § 1512(b)(3). To establish a violation of §

1512(b)(3), the government merely had to show that Kaley attempted to persuade a

person to hinder or prevent the communication of information to a federal official.

The jury could reasonably have believed the witnesses when they testified that Kaley

called various meetings, instructed coconspirators to refuse to speak to law-

enforcement officers, and directed coconspirators who did to stick to a false

narrative.

      Although Kaley argues that the meetings with coconspirators occurred before

federal agents met with her, that does not defeat the § 1512 conviction. The evidence

supported a finding that, at the time she called the meetings and instructed her

coconspirators to lie, Kaley knew federal agents were looking into the scheme and


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intended to visit her. A conviction under § 1512(b)(3) does not require proof that a

federal investigation was ongoing at the time of the statement. See United States v.

Ronda, 455 F.3d 1273, 1288 (11th Cir. 2006). The jury also fairly concluded based

on the evidence that a reasonable likelihood existed that members of the group would

be contacted and would communicate with federal authorities once contact was

made. See United States v. Chafin, 808 F.3d 1263, 1274 (11th Cir. 2015)).

      Sufficiency of the evidence does not require that the evidence be inconsistent

with “every reasonable hypothesis except guilt.” See United States v. Starrett, 55

F.3d 1525, 1541 (11th Cir. 1995) (per curiam) (citation omitted). So, the witnesses’

accounts need not be precisely the same. Here, while the witness accounts of the

meetings were not exactly the same with respect to the number of meetings and

where the meetings occurred, all of the witnesses testified that Kaley called the

meetings in early 2005 and that she did so to discuss the impending or ongoing

federal investigation into the scheme.

      Keskinyan and Tarsia also agreed that the purpose of the meeting was to get

everyone on the same page and prevent federal agents from learning the truth.

Keskinyan explained the specifics of what Kaley instructed the group to say—not to

communicate with law enforcement and if such communication was necessary, to

tell a false story. And while the government did not specifically ask Tarsia if Kaley




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gave this instruction, the take-away from his testimony was that Kaley did. This

evidence was sufficient to find Kaley guilty of witness tampering.

                                           2.

      We also reject Kaley’s assertion that a flawed jury instruction played a role in

her conviction for witness tampering. Kaley’s primary argument is that the district

court omitted two “crucial aspects” of the witness-tampering charge when it

instructed the jury. First, Kaley claims that the district court did not require jury

unanimity as to the specific witness with whom Kaley tampered. Second, Kaley

argues that the district court failed to instruct the jury that it was required to find a

reasonable likelihood “that the information would have been provided to a federal

law enforcement officer or federal judge.”

      Kaley did not make these objections at trial, so we review the jury instructions

for plain error. Under plain-error review, Kaley must show that (1) the district court

committed error; (2) the error was plain; and (3) the error affected her substantial

rights. United States v. Olano, 507 U.S. 725, 730-32 (1993). It falls within our

sound discretion whether to correct any forfeited error; we do not exercise our

discretion unless the error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 732 (citation omitted). Because we find

no plain error, we reject Kaley’s arguments.




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          “Generally, district courts have broad discretion in formulating jury

instructions provided that the charge as a whole accurately reflects the law and the

facts . . . .” United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000) (internal

quotation marks and citation omitted). And we “will not reverse a conviction . . .

unless the issues of law were presented inaccurately, or the charge improperly

guided the jury in such a substantial way as to violate due process.” Id. (internal

quotation marks and citation omitted).

          At the time of Kaley’s trial, no pattern jury instruction existed for individuals

accused of violating § 1512(b)(3). Nevertheless, the jury instruction provided by the

district court directly tracked the language of the statute.9 Thus, there was no error—

let alone plain error—in the substance of the jury instruction.



9
    The district court instructed the jury, in relevant part, as follows:

                  It's a Federal crime for anyone to corruptly persuade another person,
                  or attempt to do so, with intent to delay or prevent the
                  communication to a law enforcement officer of the United States
                  information relating to the commission or possible commission of a
                  Federal offense.

                  A Defendant can be found guilty of this crime only if all the
                  following facts are proved beyond a reasonable doubt:

                  First: That the Defendant corruptly persuaded another person, or
                  attempted to do so;

                  Second: That the Defendant did so knowingly and with the intent to
                  delay or prevent the communication of information to a law
                  enforcement officer of the United States;

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      As to Kaley’s argument that the jury was not instructed that it unanimously

must agree as to the person or persons influenced by Kaley, we need not decide that

issue. Even assuming without deciding that the district court’s failure to do so

constituted plain error, on this record, we cannot say that any such error substantially

affected Kaley’s rights. The evidence of witness tampering, as summarized above,

was overwhelming, and Keskinyan and Tarsia each effectively testified that Kaley

had tampered with them at the same meeting, instructing them to avoid speaking

with law enforcement and if they couldn’t, to lie. For these reasons, Kaley’s

argument concerning jury unanimity cannot succeed under a plain-error standard.

      Kaley’s argument that the jury should have been instructed that it had to find

a reasonable likelihood that “the information would have been provided to a federal

law-enforcement officer or a federal judge” also fails, as it does not meet plain-error

review. While a true statement and Kaley arguably may have been entitled to such

an instruction had she requested it, Kaley has not pointed to any binding case that

required the district court to sua sponte provide this instruction in a § 1512(b)(3)

prosecution. See United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (per



             Third: That such information related to the commission or possible
             commission of a Federal offense.

             To corruptly persuade means to act knowingly and dishonestly with
             the specific intent to influence, obstruct, or impede the due
             administration of justice.

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curiam) (“[A]n error cannot meet the ‘plain’ requirement of the plain error rule if it

is not clear under current law.”) (citation omitted). And even if the district court

plainly erred by not giving the instruction, we cannot say that any such error affected

Kaley’s substantial rights; sufficient evidence existed for the jury to find that it was

reasonably likely that the coconspirators would have provided information to federal

agents had Kaley not instructed them otherwise.

      For all of these reasons, we conclude that the district court did not commit

reversible error when it instructed the jurors as to the witness-tampering count.

C.    Even assuming the district court erred by restricting Kaley’s cross-
      examination of a witness during her 2016 Retrial, any such error was
      harmless.

      Next, Kaley asserts that the district court erred when it restricted her cross-

examination of cooperating witness Frank Tarsia. As we have already noted, during

his trial testimony, Tarsia testified that Kaley asked him to take PMDs from hospitals

so the devices could be sold on the grey market. More particularly, Tarsia testified

that, in order to accomplish this goal, he “walked out” of hospitals with PMDs and

sold the items to Kaley. During Tarsia’s prior sentencing hearing, however, his

lawyer sought leniency from the sentencing court on the ground that Tarsia did not

actually steal the PMDs, but rather, the hospital gave Tarsia excess products.

      During Kaley’s trial, her counsel sought to impeach Tarsia by cross-

examining him about his counsel’s prior statements. In particular, Kaley’s counsel


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wished to point out that although Tarsia testified in Kaley’s 2016 Retrial that he took

the PMDs without permission, during his own sentencing, his lawyer claimed that

the hospitals made the PMDs available to Tarsia. The district court did not allow

the line of questioning. Kaley claims this was error because the lawyer’s statements

on behalf of Tarsia during his sentencing are admissible under Federal Rules of

Evidence 801(d)(2)(D) and 801(d)(2)(C), as statements of a party opponent’s agent

and statements made by a person authorized by a party to make a statement

concerning the subject. By limiting the cross-examination of Tarsia, Kaley argues

that the district court violated her right to confrontation since she was not able to

expose that Tarsia may have been shading his testimony during Kaley’s trial in an

effort to curry favor with the government.

      We review a district court’s evidentiary rulings for a clear abuse of discretion.

United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). A trial court has

“broad discretion under Federal Rule of Evidence 611(b) to determine the

permissible scope of cross-examination.” Id. (citation omitted). But this discretion

is subject to the requirements of the Sixth Amendment. Id. The Sixth Amendment’s

right of confrontation includes the right of cross-examination. Id. The purpose of

cross-examination, of course, is typically to impeach or discredit the witness,

particularly where the witness has an incentive to cooperate with the government.

Id. We have said that “[w]hat counts is whether the witness may be shading his


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testimony in an effort to please the prosecution.” Id. (citation omitted). Once

sufficient cross-examination occurs, the district court may limit further cross-

examination in its discretion. United States v. Diaz, 26 F.3d 1533, 1539 (11th Cir.

1994).

      We assume without deciding that the district abused its discretion when it

disallowed the cross-examination of Tarsia with respect to the prior statements made

by his lawyer during sentencing. When such an error occurs, the harmless-error

doctrine applies. United States v. Edwards, 211 F.3d 1355, 1359 (11th Cir. 2000).

Under that inquiry, we must ask “whether, assuming that the damaging potential of

the cross-examination were fully realized, a reviewing court might nonetheless say

that the error was harmless beyond a reasonable doubt.” Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986). Whether an error is harmless depends on factors including

the following:

            the importance of the witness’ testimony in the
            prosecution's case, whether the testimony was cumulative,
            the presence or absence of evidence corroborating or
            contradicting the testimony of the witness on material
            points, the extent of cross-examination otherwise
            permitted, and . . . the overall strength of the prosecution's
            case.

Id.

      Here, any error that occurred was harmless because, although Tarsia was a

key government witness, he provided cumulative testimony, substantial other


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evidence admitted during trial supported Tarsia’s testimony that the sales

representatives stole products from the hospitals, the cross-examination that the

district court allowed provided a basis to challenge Tarsia’s credibility (because he

admitted to inconsistent testimony before the grand jury), and the overall evidence

of Kaley’s guilt was strong. See e.g., United States v. Mills, 138 F.3d 928, 939 (11th

Cir. 1998).

      First, Kaley’s attorney was permitted to cross-examine Tarsia concerning his

involvement in the scheme and whether he had authority to take the PMDs or not.

And he was not restricted from asking Tarsia directly what his involvement in the

scheme was and whether he “stole” the items. But perhaps most importantly, on

cross-examination, Tarsia acknowledged that he previously told a grand jury that the

PMDs he gave Kaley were extra products that the hospitals did not want and that he

also gave her samples. So even if though the jury did not hear of Tarsia’s counsel’s

statements during Tarsia’s sentencing, it nonetheless heard how Tarsia changed his

story. As a result, further cross-examination would have been cumulative.

      Plus, other witnesses testified that they stole PMDs from hospitals and gave

them to Kaley so the items could be sold on the grey market. Like Tarsia, both

Schmidt and Keskinyan testified that they took PMDs from hospitals without

permission. According to Schmidt, he took products off hospital shelves, gave them

to Kaley, and she sold them and paid him with checks. Just like Tarsia, Schmidt


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said that he put the products in his bag and walked out of the hospital. And he

indicated he stole products from hospitals dozens of times.

      Likewise, Keskinyan testified that she acquired products from hospitals for

Kaley, who then paid her by check. Keskinyan admitted that she did not ask

permission from the hospitals to take the products. And she admitted that she lied

to hospital staff—falsely telling them that she needed the products for another

hospital—in order to take the products.

      Finally, Sharp’s testimony sufficiently supported the finding that Tarsia stole

from NYM when he was a sales representative. The dramatic spike in expenses for

Ethicon products during a period of time when surgeries remained constant would

permit the jury to find that Tarsia stole from NYM.

      In short, on this record, the restriction on the cross-examination did not

constitute reversible error.

D.    The district court did not err when it permitted the government to use a
      demonstrative chart during closing arguments.

      Kaley challenges the district court’s decision to allow the government to use

during closing arguments a chart summarizing (1) NYM’s purchase of Ethicon

products during a three-year period and (2) the number of bariatric surgeries

performed during that same period. To assist the jury in digesting Sharp’s testimony,

the prosecutor sketched the chart while Sharp, NYM’s director of materials

management, testified on direct examination. Kaley objects that the prosecution
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created the chart as an end-run around the district court’s exclusion of a spreadsheet

created by Ethicon that contained the same information.10 According to Kaley, the

chart was misleading and contained hearsay, so the district court should not have

allowed the government to use it to support its contention that $1 million’s worth of

PMDs had been stolen from NYM.

       When a defendant preserves an objection by contemporaneously objecting,

we review for abuse of discretion. In determining whether the district court abused

its discretion, we look to see if it “made a clear error of judgment . . . or . . . applied

an incorrect legal standard.” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154,

1159 (11th Cir. 2004) (citation and internal quotation marks omitted). We assume

without deciding that Kaley appropriately preserved her objection to the

government’s use of this exhibit.11 Nevertheless, Kaley cannot prevail on her

argument even under this standard.

       Typically, Rule 1006, Fed. R. Evid., governs the use of summary charts. That

Rule provides that, for the sake of convenience, a party can use summary charts to

present in court “otherwise voluminous” information. Rule 1006, Fed. R. Evid.


       10
           As we have noted, the district court excluded the spreadsheet because neither Sharp nor
NYM generated it.
        11
           Kaley contends the abuse-of-discretion standard applies because she objected to the
government’s use of the chart before its use during closing arguments. But the government claims
the plain-error standard governs. According to the government, the timing of Kaley’s objection
was “too late,” since Kaley did not object to the chart as it was sketched during Sharp’s direct
examination. We need not decide whether Kaley appropriately preserved her objection because,
even assuming she did, her argument still fails under the less onerous abuse-of-discretion standard.
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Once admitted, a Rule 1006 exhibit constitutes substantive evidence. See Peat, 378

F.3d at 1159.

      Here though, the summary chart was not admitted as evidence; rather, it was

employed as a demonstrative aid. Where a chart serves as a demonstrative aid only,

Rule 611(a), Fed. R. Evid., controls. Rule 611(a) provides, among other things, that

a court may exercise “reasonable control over the mode of . . . presenting evidence”

so as to make the procedures “effective for determining the truth” and to “avoid

wasting time.” See Rule 611(a), Fed. R. Evid. As the Advisory Committee Notes

to the 1972 proposed rule explain, the judge is to employ “common sense and

fairness in view of the particular circumstances” in ensuring the use of “procedures

effective for determining the truth.” Fed. R. Evid. 611(a) advisory committee’s note

to 1972 amendment.

      The district court did not abuse its discretion when it allowed the government

to use the chart during closing arguments. The chart merely reflected Sharp’s

testimony that a significant jump in the amount of money NYM spent on bariatric-

surgery equipment occurred during 2004.        More specifically, the government

memorialized Sharp’s testimony in the chart as follows: (1) in 2003, 94 bariatric

surgeries were performed, and NYM spent approximately $950,000 on the PMDs

used for those surgeries; (2) in 2004, 96 bariatric surgeries were performed, and

NYM spent approximately $2.1 million on the PMDs used for those surgeries; and


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(3) in 2005, 94 bariatric surgeries were performed, and NYM spent approximately

$1.3 million on the PMDs. The chart set forth in visual form Sharp’s testimony that,

even though the number of surgeries remained almost the same, the costs NYM

incurred during 2004 for PMDs more than doubled.

      Significantly, Kaley never argued that the prosecutor inaccurately transcribed

Sharp’s testimony. We find the use of the chart was akin to the government’s use as

a demonstrative aid of an enlarged copy of a portion of a transcription of a witness’s

testimony during trial. We disagree with Kaley’s assertion that the government’s

use of the chart was misleading and that it contained inadmissible hearsay. In fact,

the chart represented testimony that occurred during Kaley’s trial, and Sharp

explained in detail in his testimony how he independently researched and confirmed

the information originally set forth in Ethicon’s spreadsheet before he testified to the

numbers of surgeries performed and the costs of PMDs incurred for those surgeries.

      Nor was there anything unfair or surprising about the government’s use of the

chart. As we have noted, the chart reflected Sharp’s trial testimony. Sharp was

subject to cross-examination, and during cross-examination, Kaley’s counsel did not

challenge Sharp about the correctness of the numbers to which he testified.

Moreover, Kaley possessed the information from Ethicon that was consistent with

Sharp’s testimony because it had the Ethicon spreadsheet for years prior to Kaley’s

2016 Retrial. Indeed, the spreadsheet was used in Kaley’s 2014 Trial and was


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admitted without objection during that trial. And Sharp testified at the 2016 Retrial

to substantially the same sales numbers at which Ethicon arrived.

      Finally, any argument by Kaley that the summary chart unfairly left the jury

with the impression that theft had been committed at NYM is without merit. As we

have noted, aside from the sketched chart, abundant evidence supported the

conclusion that the conspiracy stole items from NYM. Tarsia himself testified that

while he was the sales representative for NYM, he “walked out” with products

without permission and gave them to Kaley, who provided him with checks in return.

As Tarsia explained, he carried the products out of the hospital in a “large bag” to

hide the theft.

      For these reasons, we conclude that the district court did not abuse its

discretion when it allowed the government to use the summary chart during closing

arguments.

E.    The restitution amount selected by the district court was a reasonable
      estimate of the amount of loss based on the evidence.

      Finally, Kaley challenges the order of restitution entered by the district court

following her conviction, which required Kaley to pay $841,420 to NYM for its loss.

According to Kaley, the amount of restitution selected was based solely on the

inference that the “uptick” in NYM’s orders for PMDs in 2004 constituted the actual

loss suffered by the hospital. Kaley contends that the restitution order should be



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reversed because the district court did not base the restitution amount on the actual

loss to NYM. We disagree.

      We review de novo the legality of a district court's restitution order, and we

review for clear error the underlying factual findings. United States v. Baldwin, 774

F.3d 711, 728 (11th Cir. 2014). The amount of a restitution award “must be based

on the amount of loss actually caused by the defendant's conduct." Id. (quoting

United States v. Liss, 265 F.3d 1220, 1231 (11th Cir. 2001)). But because the

determination of a restitution amount is an “inexact science,” United States v. Huff,

609 F.3d 1240, 1248 (11th Cir. 2010), the government need not “calculate the

victim’s actual loss with laser-like precision, but may instead provide a reasonable

estimate of that amount.” United States v. Martin, 803 F.3d 581, 595 (11th Cir.

2015) (citation and internal quotation marks omitted).          Consequently, where

difficulties arise in establishing the exact amount of restitution, a district court may

accept a “reasonable estimate” of the loss based on the evidence presented. See

United States v. Futrell, 209 F.3d 1286, 1291-92 (11th Cir. 2000) (per curiam)

(holding that the district court did not abuse its discretion in relying on a reasonable

estimate of the loss the defendant caused to the government in fraudulently obtaining

disability payments when calculating his earning capacity necessarily required an

estimate); see also Baldwin, 774 F.3d at 728-29.




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      The government bears the burden of establishing the amount of a victim's loss

by a preponderance of the evidence. Futrell, 209 F.3d at 1290; see also 18 U.S.C. §

3664(e). The district court must explain its findings with “sufficient clarity” to allow

this Court to perform its function adequately on appellate review. Huff, 609 F.3d at

1248. Loss and restitution calculations may be based on evidence heard during trial,

undisputed statements in the PSI, or evidence presented at the sentencing hearing.

Baldwin, 774 F.3d at 727-28. With these principles in mind, we affirm the district

court’s restitution order.

      At the restitution hearing, the government relied on Sharp’s trial testimony

about NYM’s purchase of endo-mechanical devices during the period when Tarsia

(and Schmidt) admitted to stealing devices from NYM. The government noted that

Tarsia began his theft in December 2003—as reflected in checks from Kaley—and

ended in December 2004. Sharp testified that, although the number of bariatric

surgeries involving Ethicon products remained mainly constant from 2003 to 2005,

the amount NYM paid for the products rose from approximately $950,000 in 2003

to approximately $2.1 million in 2004, and then dropped again (after Tarsia’s

departure as a representative) to around $1.3 million in 2005.

      Sharp also testified that Tarsia was the sales representative for Ethicon during

2003 and 2004, and Tarsia himself admitted he stole products from NYM and sold

them to Kaley until the end of 2004. Sharp further testified that he ruled out the


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possibility that the uptick in the amount paid for the products could have been due

to an increase in the number of surgeries. As Sharp explained, he reviewed

operating-room records, which reflected that the number of bariatric surgeries

remained the same throughout the period.

       Although Kaley contends that the government did not sufficiently prove that

the increase in sales was caused exclusively by Tarsia’s theft, she does not suggest

a plausible alternative as to why NYM paid almost double for the Ethicon products

in 2004 than it did in 2003. Nor does she explain why the amount spent sharply

decreased following Tarsia’s departure in 2005. For this reason, any theory that the

cost increase may have resulted from an increase in the price of products (rather than

from the purchase of additional products to account for the thefts) fails since the

amount paid by NYM decreased dramatically in 2005, even when the number of

surgeries remained the same. Under these circumstances, it was reasonable for the

district court to conclude that the uptick in costs resulted from theft.

       We also conclude the $841,420 restitution amount reflects a reasonable

estimate based on Sharp’s and Tarsia’s trial testimony and the Ethicon spreadsheet

numbers. 12 The district court explained that it arrived at this amount by taking into

account the expenditures on NYM’s expenditures on Ethicon “Endo-medical only


       12
         The district court used the figures set forth in the spreadsheet made by Ethicon (that was
not admitted into evidence during trial). These figures were more precise than the ones testified
to by Sharp.
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equipment” in 2004 versus those in 2005. As the district court noted, the money

spent on devices in 2004 substantially increased to $2,155,690, and the next year it

went down to $1,314,270. The district court subtracted the 2005 figure from the

2004 one to arrive at the restitution amount ($2,155,690 - $1,314,270 = $841,420).

We agree with the district court’s assessment that the $841,420 figure is a

conservative estimate, in light of the value of the stolen devices and the amount

Danks paid Kaley. We find no error.

                                    III.   Conclusion

         For the foregoing reasons, we affirm Kaley’s convictions and the restitution

order.

         AFFIRMED.




                                           37
