                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 04-1059
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
James R. Nichols,                       *
                                        *
            Appellant.                  *
      ___________
                                            Appeals from the United States
      No. 04-1062                           District Court for the
      ___________                           Western District of Missouri.

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Robert Gomez,                          *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: January 10, 2005
                                Filed: August 5, 2005
                                 ___________

Before SMITH, HEANEY, and COLLOTON, Circuit Judges.
                            ___________
SMITH, Circuit Judge.

        James R. Nichols and Robert Gomez appeal their convictions of conspiracy to
commit interstate transportation of property by fraud, interstate transportation of
property stolen by fraud, conspiracy to commit money laundering, money laundering,
and civil forfeiture. Following a joint-jury trial, the district court1 sentenced Nichols
to a total term of 292 months' imprisonment and Gomez to a total term of 262 months'
imprisonment. We affirm.

                                  I. Background
      Between 1998 and 2002, Nichols and Gomez masterminded a nationwide fraud
and money-laundering scheme involving the sale of nonexistent motor vehicles from
a nonexistent probate estate. To perpetrate the fraud, Gomez claimed to be the
adopted son of one John Bowers, deceased, and the sole heir to his estate. Nichols
represented himself as the executor of John Bowers's estate. In actuality, there was
no John Bowers. Nichols and Gomez created Bowers, and then used this fictitious
person to defraud others–primarily persons of religious faith.

       To snare the unwary, Nichols and Gomez told potential investors that John
Bowers had died and left an estate worth approximately $400 million. According to
the two, Bowers left instructions to reward persons of religious faith by offering them
the opportunity to purchase automobiles at a very low price.2 The vehicles were said
to be between one and two-years old and were offered for sale at prices between
$1000 and $5000. Nichols and Bowers told purchasers that they would have to pay
for the cars up front, and that their money would be placed in a non-interest bearing


      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
      2
       As the scheme gained publicity, the low-priced vehicles became known as the
"miracle cars" or the "estate cars."

                                          -2-
account until the estate closed. Supposedly, the probate judge imposed restrictions
preventing the disclosure of details about the individual cars. However, purchasers
could request a refund of their purchase money at any time.

        The scheme was initially aimed at members of Nichols's home church in
southern California. However, as news of the vehicles spread, other southern
California churches were targeted. At first, only Nichols's family promoted the sale
of the "estate cars," but others were eventually enlisted to spread the word.
Gwendolyn Baker, a resident of Memphis, Tennessee, began selling the "estate cars"
through churches in the Memphis area after contacting Nichols and Gomez. Baker
was later introduced to Dr. Corinne Conway of Higginsville, Missouri, who then
promoted the sale of the fictitious cars nationwide through her organization, the
Virtuous Women's International Ministry. Unwitting people across the nation sold the
fictitious cars to members of their local churches because of Dr. Conway's
promotions. Those within the scheme called these persons "finders" because they
found purchasers for the "estate cars."

       Money collected through Baker, Dr. Conway, and the finders was funneled to
Nichols who deposited the funds in a California bank account. Nichols would then
transfer a portion of the funds to California casino accounts where Gomez would
exchange the money for casino chips or cash. Nichols also made direct withdrawals
from the account to get cash, make transfers to family members, and to buy vehicles.
In addition, as the scheme progressed, Nichols would refund money to purchasers of
the "estate cars" who were unwilling to wait for delivery. Over the course of the
scheme, Gomez and Nichols collected more than $21 million from the sale of the
"estate cars," but refunded approximately $8.5 million.

      The car scam began to run out of gas when the Missouri Attorney General's
Office was notified of the scheme and began an investigation. The United States
Postal Inspectors and the Federal Bureau of Investigation later joined in the

                                        -3-
investigation. From those investigations, a Missouri Grand Jury returned a twenty-
three count indictment against Gomez and Nichols.

       Prior to trial, Gomez and Nichols sought to have their respective cases severed
and tried separately. The district court denied their motions. Gomez also sought to
dismiss the money laundering counts of the indictment for lack of venue. The district
court also denied that motion. At trial, Nichols testified in his own defense claiming
that Gomez had set him up. Gomez did not testify. The jury returned guilty verdicts
against both Nichols and Gomez. After reviewing a presentence investigation report
(PSR), and conducting a sentencing hearing, the district court sentenced Nichols to
a total term of 292 months' imprisonment and Gomez was sentenced to a term of 262
months' imprisonment. This joint appeal followed.

                                   II. Discussion
      Together, Nichols and Gomez assert a total of eight points on appeal. Some
arguments are pressed by both, and others are brought independently. We address the
joined arguments together, and the individual arguments will be addressed separately.

                          A. Severance – Nichols and Gomez
       Both Nichols and Gomez assert that the district court erred in refusing to sever
the trial. They maintain that their mutually antagonistic defenses necessitated
severance. We review a district court's denial of a motion to sever for an abuse of
discretion. United States v. Mickelson, 378 F.3d 810, 817–18 (8th Cir. 2004). In order
to reverse, the appellant must show that his or her right to a fair trial was prejudiced.
Id.; see also Zafiro v. United States, 506 U.S. 534 (1993). Defendants who are jointly
indicted on similar evidence from the same or related events should normally be tried
together; to warrant severance a defendant must show "real prejudice"; that is,
"something more than the mere fact that he would have had a better chance for
acquittal had he been tried separately." Mickelson, 378 F.3d at 817–18. (citations
omitted). A defendant can demonstrate real prejudice to his right to a fair trial by

                                          -4-
showing: (1) his defense is irreconcilable with that of his co-defendant; or (2) the jury
will be unable to compartmentalize the evidence as it relates to the separate
defendants. Id. However, severance is not required merely because evidence that is
admissible only against some defendants may be damaging to others. Id.

       In this case, Gomez's defense strategy was that he knew nothing about the
Bowers's estate or the scheme to sell "estate cars" at low prices. He explained that he
was a professional gambler and that Nichols was "backing his play" as an investment.
Nichols, on the other hand, claimed that he was duped and misled by Gomez who
alone masterminded the entire scheme. To that extent, Nichols claimed that he
actually believed Gomez was the heir of the Bowers's estate and that the sale of the
"estate cars" was completely legitimate.

       "Mutually antagonistic defenses are not prejudicial per se." Zafiro v. United
States, 506 U.S. 534, 538 (1993). The Supreme Court specifically rejected the notion
that defendants who have contradictory defenses are inherently prejudiced simply
because "a jury will conclude [either] that both defendants are lying and convict them
both on that basis, or that at least one of the two must be guilty without regard to
whether the Government has proved its case beyond a reasonable doubt." Id. at 540;
see also United States v. Blankenship, 382 F.3d 1110, 1125 (11th Cir. 2004) ("The
Supreme Court has held that co-defendants do not suffer prejudice simply because
one co-defendant's defense directly inculpates another, or it is logically impossible
for a jury to believe both co-defendants' defenses.").

       We first examine whether the defenses asserted by Gomez and Nichols are
actually irreconcilable. As already stated, Gomez asserts that Nichols was backing his
gambling and Nichols asserts that Gomez duped him. These two stories are
reconcilable. Specifically, Nichols could very well have been duped by Gomez while
at the same time giving Gomez money to finance his professional gambling. Stated
another way, Nichols's contention that he was duped did not necessarily require that

                                          -5-
the jury either accept or reject the defense that Gomez merely received gambling
support funds. Likewise, Gomez's contention did not require the jury to accept or
reject the defense that Nichols was an unwilling participant.

       Neither Gomez nor Nichols disputes that nonexistent cars were sold with much
of the proceeds funneled through Nichols to casinos where Gomez received the funds
in the form of gambling chips. See United States v. Serafino, 281 F.3d 327, 330 (1st
Cir. 2002) ("Serafino never disputed that the MBC vendors funneled payments
through his companies' accounts, and Peckham's contention that he was neither the
mastermind nor the driving force behind the scheme did not necessarily require that
the jury either accept or reject the defense that Serafino was an unwitting
participant."). At their core, both Nichols's defense and Gomez's defense asserted that
they did not know of the fraud. See United States v. Jackson, 64 F.3d 1213, 1217 (8th
Cir. 1995) cert. denied, 516 U.S. 1337 (1995) (holding that defenses by drug offense
co-defendants that neither had knowledge of drugs in a package were reconcilable).

       We next examine whether the jury could compartmentalize the evidence. We
have held that in reviewing the "consideration of the jury's ability to
compartmentalize the evidence against the joint defendants, we consider 1) the
complexity of the case; 2) if one or more of the defendants were acquitted; and 3) the
adequacy of admonitions and instructions by the trial judge." United States v.
Pherigo, 327 F.3d 690, 693 (8th Cir. 2003). The case against Gomez and Nichols was
not complex. At trial, the government contended that Gomez pretended to be the heir
of a fictitious estate while Nichols acted as the executor of that estate. According to
the government, Gomez and Nichols both claimed that the estate was selling
automobiles at reduced prices that would be delivered upon the probate court's
closing of the estate. They collected money from sales of phantom vehicles which
went to Nichols, who then diverted a portion of that money to Gomez through
casinos. Indeed, the charges against Gomez and Nichols were virtually identical, save
a few independent incidents. Neither party was acquitted.

                                         -6-
       Lastly, neither defendant objected to the district court's jury instructions. We,
therefore, do not find the trial judge's admonitions and instruction to the jury
inadequate. Blame-shifting on the part of the defendants "is not a sufficient reason for
severance." United States v. Basile, 109 F.3d 1304, 1310 (8th Cir. 1997) (en banc)
(citing United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir.1996)). Here, Nichols
and Gomez simply pointed the finger, each admitting that a scheme was employed,
but both asserting that they had no knowledge of the fraud. They have failed to show
that the jury could not have considered the evidence against each of them
independently. Under these circumstances, we cannot say that the district court
abused its discretion.

                       B. Erroneous Submission of Documents
                         During Jury Deliberations – Nichols
       After deliberations commenced, one juror notified the district court that the
jury had erroneously been given a box of investigation reports prepared by an agent
of the California Division of Gaming Control.3 Attached to some of the reports were
search warrant affidavits and probable cause declarations. When Nichols's defense
counsel learned of the error, a motion for mistrial was immediately made. At that
point, the district court conducted a voir dire of the jury to determine whether any of
the jurors had actually read the documents. All jurors denied reading the documents.
Satisfied that there had been no prejudice by the erroneous submission of the
documents, the district court denied Nichols's motion for mistrial. The jurors were
allowed to deliberate and then returned a guilty verdict. The court, again, confirmed
that none of the jurors considered the erroneously submitted documents.




      3
       The jury requested to see certain documents admitted at trial, and the deputy
clerk gave them a box of documents that mistakenly contained investigation reports
that were not admitted into evidence.

                                          -7-
       We have held that a denial of mistrial based on the erroneous submission of
evidence to the jury will be reviewed for an abuse of discretion. United States v.
Rhodenizer, 106 F.3d 222, 225 (8th Cir. 1997). For reversal, the appellant must show
that an abuse of discretion resulted in clear prejudice. Id.4 Nichols's claim of prejudice
supposes that the jury actually read the documents and considered them in
deliberations. The district court's jury poll, which showed no juror read the disputed
documentation, contradicts Nichols's claim of prejudice, which amounts to no more
than speculation. Even where the trial court errs, it can often avert any undue
prejudice by giving a curative instruction. Id. Nichols has failed to show that the
mistake in submitting these documents affected the jury deliberations in any way. A
defendant is entitled to a "fair trial, not a perfect one." Id. (citation omitted). We
cannot say that the district court abused its discretion in denying the mistrial motion.
Furthermore, based on the district court's careful polling and admonition of the jurors,
we hold that any error in erroneously submitting the documents to the jury was
harmless.
                                  C. Sentencing Errors
       Both Nichols and Gomez argue on appeal that the district court erred by
finding facts to enhance their sentences and by viewing the Guidelines as mandatory.
See United States v. Booker,125 S. Ct. 738 (2005) (holding that the Sixth Amendment
to the United States Constitution requires that facts "necessary to support a sentence
exceeding the maximum authorized by the facts established by a plea of guilty or a
jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt," and excising the portion of the Sentencing Reform Act of 1984


      4
        In Rhodenizer, we held that the jury's viewing of inadmissible drug
paraphernalia mistakenly left in a bag entered into evidence, though error, did not
result in clear prejudice, and thus did not require a mistrial. We explained that the
other evidence against the defendant was extremely strong, the government had
already introduced photographs of drug paraphernalia found in a camper shell of the
defendant's truck, and the court issued a curative instruction admonishing the jury not
to consider the contents of the bag. 106 F.3d at 225.

                                           -8-
that made the Guidelines mandatory.). The district court made factual findings to
support sentence enhancements and applied the Sentencing Guidelines as mandatory.
Neither Nichols nor Gomez objected to the court's application of the Guidelines with
specific reference to Apprendi, Blakely, or the Sixth Amendment, and thus, we review
the Sixth Amendment claims for plain error. United States v. Pirani, 406 F.3d 543,
549–50 (8th Cir. 2005) (en banc).

       Our plain error analysis of Booker issues focuses on "what sentence would
have been imposed absent the error." Pirani, 406 F.3d at 551. (emphasis in original).
Under this standard, an appellant must demonstrate "a reasonable probability that he
[or she] would have received a more favorable sentence with the Booker error
eliminated by making the Guidelines advisory." Id. Because "[n]othing in the record
suggests a reasonable probability that the district court would have imposed a more
lenient sentence absent Booker error, . . . [Nichols and Gomez] ha[ve] not carried
[their] burden." Id. at 553.

           1. Amount of Loss Under U.S.S.G. § 2B.1.1 – Nichols and Gomez
       Nichols and Gomez join in arguing that the district court erred in calculating
the total loss resulting from their fraud. Specifically, Nichols and Gomez contend that
the court erred in not giving them credit for $1,259,800 which was refunded prior to
the scheme's detection. Beginning in January 1, 1999 Nichols and Gomez collected
a total of $21,123,830 from the car sales scheme. Of that amount, about $8,000,000
was refunded, and of the refund amount, $1,259,885 was refunded prior to the offense
being detected. The district court ruled that the total loss would be based on a figure
greater than $20,000,000. Nichols and Gomez argue that they should have received
credit for the $1,259,885 refunded prior to March 30, 2000,5 resulting in a total loss
of just under $20,000,000.


      5
       March 30, 2000, is the approximate time that Nichols and Gomez were
contacted by a criminal investigator.

                                         -9-
       We review the application of Sentencing Guidelines de novo. United States v.
Mashek, 406 F.3d 1012, 1016 (2005); United States v. Red Elk, 368 F.3d 1047, 1051
(8th Cir. 2004). However, "[l]oss calculations also involve factual findings, which we
review for clear error and reverse only if 'we are left with a definite and firm
conviction that the district court erred.'" United States v. Liveoak, 377 F.3d 859, 866
(8th Cir. 2004) (citations omitted); See also Mashek, 406 F.3d at 1017 (citing United
States v. Killgo, 397 F.3d 628, 631 (8th Cir. 2005)). The Guidelines provision
applicable to fraud cases provides for a graduated increase in the base offense level
depending on the amount of loss resulting from conduct relevant to the count of
conviction. U.S.S.G. § 2B1.1. Under the Sentencing Guidelines, the base offense
level for fraud is adjusted upward if the loss resulting from the fraud exceeded
$5,000. See U.S.S.G. § 2B1.1(b)(1). Where the loss is greater than $20,000,000 but
not more than $50,000,000, twenty-two levels are added. U.S.S.G. § 2B1.1(b)(1)(L).
When the loss is greater than $7,000,000 but not more than $20,000,000, twenty
levels are added. U.S.S.G. § 2B1.1(b)(1)(K). Thus, Nichols and Gomez argue that
they were erroneously assessed an additional two offense levels.

      Application Note 3(E)(i) to U.S.S.G. § 2B1.1, states in pertinent part:

      Credits Against Loss. – Loss shall be reduced by the following:
      (i)   The money returned . . . to the victim before the offense was
            detected. The time of detection of the offense is the earlier of (I)
            the time the offense was discovered by a victim or government
            agency; or (II) the time the defendant knew or reasonably should
            have known that the offense was detected by a victim or
            government agency.

U.S.S.G. § 2B1.1, cmt. n.3(E)(i). In addition to this application note, Nichols and
Gomez point to Ninth Circuit precedent stating that "[a] fraud defendant is entitled
to credit for refunds paid prior to the discovery of the offense." United States v.
Bright, 353 F.3d 1114, 1118 (9th Cir. 2004). Moreover, the Seventh Circuit has

                                         -10-
adopted a "credit against loss" approach to the calculation of fraud victim loss
amounts for Sentencing Guidelines purposes. United States v. Hausmann, 345 F.3d
952, 960 (7th Cir. 2003) (noting the Guidelines' application notes). Likewise, we have
applied a credit against losses under Application Note 3(E)(i) to the fair-market value
of services rendered. See United States v. Liveoak, 377 F.3d 859, 867 (8th Cir. 2004).6


      6
        The government argues that when a Ponzi fraud scheme is employed, there is
no credit against losses under the Guidelines. "Ponzi schemes are fraudulent business
ventures in which investors' 'returns' are generated by capital from new investors
rather than the success of the underlying business venture. This results in a snowball
effect as the creator of the Ponzi scheme must then recruit even more investors to
perpetuate the fraud." In re Armstrong, 291 F.3d 517, 520 (8th Cir. 2002). With
respect to Ponzi schemes, the Ninth Circuit explained:

      The Second, Fourth, Fifth, and Seventh Circuits have held that the loss
      calculation in a Ponzi scheme should not be offset by the amount of the
      victims' recovery. See United States v. Carrozzella, 105 F.3d 796, 805
      (2d Cir. 1997); United States v. Loayza, 107 F.3d 257, 265 (4th Cir.
      1997); United States v. Deavours, 219 F.3d 400 (5th Cir. 2000); United
      States v. Lauer, 148 F.3d 766, 768 (7th Cir. 1998); but see United States
      v. Holiusa, 13 F.3d 1043, 1046–47 (7th Cir. 1994) (holding that
      intended loss in a Ponzi scheme case did not include amounts ultimately
      returned to investors).

      These courts reason that the gravity of the crime should be measured by
      the entire sum of money that the schemers put at risk through the
      misappropriation regardless of whether some victims were fortunate
      enough to recover part of their loss. Lauer, 148 F.3d at 768; cf. United
      States v. Janusz, 135 F.3d 1319, 1324 (10th Cir. 1998) (adopting this
      line of reasoning in a fraud case where the financial consultant
      misappropriated clients' funds, most of which were recovered by the
      clients when the consultant's accounts were frozen). Because the
      schemers typically return money to investors to perpetuate the fraud and
      ensnare new investors, and not to mitigate damages to the current
      investors, these courts reason that they should be held accountable for
      all of the funds that are misappropriated. See Carrozzella, 105 F.3d at
      805.
                                        -11-
       Even assuming Nichols and Gomez had received credit for the sums returned,
the district court could have nonetheless readily found the total fraud loss exceeded
$20,000,000. The district court had authority under the Guidelines to consider the
loss to victims that took place prior to January 1, 1999. See U.S.S.G. § 2B1.1 cmt.
n.3(c)) ("The court need only make a reasonable estimate of the loss. The sentencing
judge is in a unique position to assess the evidence and estimate the loss based upon
that evidence. For this reason, the court's loss determination is entitled to appropriate
deference."). Given the loss amount conceded by Nichols and Gomez, only an
additional $135,970 was needed to reach the $20,000,000 threshold. The district
court's calculation did not include the losses that occurred when Nichols and Gomez
started their scheme in southern California in 1997. Indeed, the scheme was so
successful in southern California that it had spread to Memphis by the fall of 1998.
Furthermore, the loss calculation conceded by Gomez and Nichols did not include
any finders' fees paid. The record supports a finding that over $1,000,000 in finders'
fees were paid to Dr. Conway, Baker, and other finders. Under these circumstances,
we are not left with a definite and firm conviction that the district court erred in
calculating a total loss over $20,000,000.




United States. v. Munoz, 233 F.3d 1117, 1125 (9th Cir. 2000). The fraud perpetuated
in this case was not a typical Ponzi scheme. Nichols and Gomez did not claim to have
generated "returns" for investors. Instead, they refunded money to victims who
requested refunds. Nonetheless, the Ponzi rationale is applicable because Nichols and
Gomez returned funds to victims in order "to perpetuate the fraud and ensnare new
[victims], and not mitigate damages to the current victims" See United States v.
Carrozzella, 105 F.3d 796, 805 (2d Cir. 1997). In Lauer, 148 F.3d at 768, the Seventh
Circuit likened Ponzi schemes to a person who embezzles money from his employer,
planning to gamble with it and put the embezzled money back before he is
discovered. Lauer, 148 F.3d at 768. The Seventh Circuit explained that the embezzler
should be held accountable for the amount of money he stole regardless of whether
he is caught before or after he returns any winnings. Id.

                                          -12-
                                 2. Perjury – Nichols
       Nichols next argues that the district court erred in enhancing his sentence based
on a finding that he committed perjury in his trial testimony. In making its ruling, the
district court stated:

      Every defendant does have a right to testify in their own behalf, but they
      do not have a right to lie under oath. And I am not relying on the jury's
      determination that the defendant was guilty to apply this enhancement.
      I'm relying on my own conclusion that his testimony was false,
      knowingly false, and that it was knowingly false on material issues, and
      intended, in fact, to deceive both the court and the jury.

We review a district court's factual findings underlying an obstruction of justice
enhancement for clear error and its construction and application of the Guidelines de
novo. United States v. Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004). A
defendant is subject to an enhancement under U.S.S.G. § 3C1.1 if he testifies falsely
under oath in regard to a material matter and does so willfully rather than out of
confusion or mistake. Id. If a defendant objects to an obstruction enhancement relying
on perjury, the district court must make findings that the defendant willfully gave
false testimony concerning material matters in the case. Id. We give "great deference"
to a district court's decision to grant an enhancement for obstruction of justice, see
United States v. Calderon-Avila, 322 F.3d 505, 507 (8th Cir. 2003), and will reverse
an enhancement only when the district court's findings are insufficient, see United
States v. Brooks, 174 F.3d 950, 958–59 (8th Cir. 1999).

      The sentencing court cannot give the upward departure "simply because a
defendant testifies on his own behalf and the jury disbelieves him." United States v.
Flores, 362 F.3d 1030, 1037 (8th Cir. 2004) (quotation omitted). To do so would chill
a defendant's constitutional right to testify on his own behalf. Id. Rather, once a
defendant objects, the sentencing court must itself conduct an independent evaluation
and determine whether the defendant committed perjury. Id. While it is preferable for


                                         -13-
the district court to address each element of the alleged perjury in a separate and clear
finding, the determination is sufficient if "the court makes a finding of an obstruction
of, or impediment to, justice that encompasses all of the factual predicates for a
finding of perjury." Id.

        In this case, the district court made an independent evaluation of Nichols's
testimony but did not cite to any specific testimony that was perjured. During the
sentencing hearing, the government provided two bases for a finding of perjury. First,
the government noted that Nichols's testimony that he had not read certain letters he
signed and provided to some victims was contrary to the testimony of the victims.
Second, the government adverts to Nichols's testimony that he was in a limousine
with the fictitious John Bowers when Bowers was delivering gold to his ranch. This
testimony is preposterous considering that John Bowers never existed. In addition,
Nichols testified that he deposited money that was not gathered from the sale of
"estate cars" into a bank, but the bank records do not reflect any such deposits.
Nichols denied seeing certain documents–found in his nightstand–that witnesses
testified he gave them. Nichols testified that he never told the victims that their
money would be held in non-interest bearing accounts, but all the evidence showed
the opposite.

       We conclude that there was ample evidence supporting the obstruction of
justice enhancement and the district court's decision is not clearly erroneous. We have
affirmed the application of an obstruction enhancement in a case where the district
court stated, "I heard the trial testimony, and I think [it constitutes] obstruction of
justice." United States v. Kessler, 321 F.3d 699, 703 (8th Cir. 2003); see also United
States v. Brown, 311 F.3d 886, 890 (8th Cir. 2002) (affirming the enhancement on the
district court's statement that, "I believe the defendant did testify untruthfully").The
district court did not rely wholly on the jury's determination of guilt. See United
States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2004). Nichols's testimony was
"unequivocal" and "the record left no doubt that [his] false testimony at trial was not
the result of confusion, mistake, or faulty memory." Brown at 890 (citing United
                                          -14-
States v. Esparza, 291 F.3d 1052, 1055 (8th Cir. 2002)). The district court made a
specific finding that, based on his own evaluation, Nichols committed perjury. We
find the sentence of the district court to be reasonable and affirm the application of
the obstruction enhancement.

              D. Insufficient Evidence of Money Laundering – Nichols
       Nichols alone argues that there was insufficient evidence to support his
convictions for conspiracy to commit money laundering and money laundering. We
will reverse a conviction for insufficient evidence only if, after viewing the evidence
in the light most favorable to the jury's verdict, giving the government the benefit of
all reasonable inferences that may be drawn from the evidence, no construction of the
evidence will support the jury's verdict. United States v. Beltz, 385 F.3d 1158, 1163
(8th Cir. 2004).

       The essence of Nichols's argument is that the money transfers and expenditures
were done openly and without an intent to conceal. A money laundering violation
requires proof of concealment, not the absence of full disclosure. United States v.
Shoff, 151 F.3d 889, 891 (8th Cir. 1998). Here, Nichols deposited all the funds in a
single bank account registered with Nichols's name and social security number. The
funds were then transferred to accounts in Nichols's name and in Gomez's name at
gambling casinos with checks drawn on the account and signed by Nichols. Thus,
according to Nichols, there was no proof of concealment. As such, Nichols asserts
that the money laundering statute has been used to criminalize mere "money
spending." See Shoff, 151 F.3d at 892.

       We have upheld money laundering convictions where there is evidence that the
money transfers "made it more difficult for the true owner of the money to trace what
happened to it," United States v. Norman, 143 F.3d 375 (8th Cir. 1998), or involved
the routing of money. United States v. Vanhorn, 296 F.3d 713, 717 (8th Cir. 2002).
In Norman, the defendant bought a vehicle with illegally obtained money. 143 F.3d
375. He paid for the car with a check drawn on an account of a business he
                                         -15-
controlled, and the car was titled in the name of the same business. Id. Norman made
no attempt to conceal from the seller of the car his own identity, or the fact that he
owned the business that was to become the owner of the car. Id. We first explained
that money laundering only requires that a defendant know that the transaction is
designed in whole or in part to conceal or disguise the nature, the location, the source,
the ownership, or the control of the proceeds of specified unlawful activity. Id.
Accordingly, the point is not whether the seller of the car is deceived as to who the
defendant was, but rather, by changing the proceeds of unlawful activity from the
form of money–through the use of undisclosed business accounts–into the form of an
automobile, it made it more difficult for the true owner of the money to trace what
had happened to the funds. Id.

       We affirmed the sufficiency of the evidence supporting Norman's money
laundering convictions and noted that the illegal funds were deposited into three bank
accounts held in two names, neither of which was the account known to the victim.
Id. In addition, we relied on the fact that the subsequent purchases were made by
checks, and involved automobiles and other goods that were not matters of public
record. Id.

      Similarly, in this case, Nichols's scheme employed transactions that hampered
fraud victims' efforts to discover their money's location and use. Specifically,
although Nichols deposited the money into a single account, he then divided the
money into multiple gambling accounts, and sent cash to Gomez, Nichols, and Baker.
Nichols gave some of the money in the central account to family members and
funneled some to a corporation; he also used some of the proceeds to purchase
vehicles. The money in the accounts was also used to pay prior debts and purchase
casino chips for gambling–matters not of public record. None of these transactions
were known to the victims.

      In Shoff, the money laundering counts were based upon two automobile
purchases. Shoff, 151 F.3d at 890–91. Shoff received a $30,000 check from his
                                          -16-
cousin's wife, payable to Shoff personally. Id. He deposited the check into a newly-
opened checking account in the name of Shoff Trading Limited. Four days later, he
wrote a check on that account to purchase a $17,290 money order payable to a local
car dealer. Id. The bank's records list Shoff as purchaser of the money order. He used
the money order to purchase a 1989 Mercedes. Id. Second, after a client invested
$150,000 with Shoff by wiring the money, at Shoff's direction, into a Shoff Trading
checking account, Shoff wrote a check on that account to purchase a $28,400
cashier's check payable to a local car dealer. Id. The cashier's check listed Shoff as
the remitter. He used the cashier's check to purchase a 1992 Mercedes. Id.

       In Shoff we noted that the line between money spending and money laundering
is often a difficult line to draw. Id. We distinguished Norman as a case where the
defendant secretly converted proceeds to personal use, and explained that Shoff's
victims did not care where he initially deposited their funds. Id. The victims
transferred the money to Shoff personally or at his direction, relying on his
representation that he would invest, not on their ability to supervise or control his use
of the proceeds. Id. We held that purchasing two cars was not equivalent to money
laundering. Id.

       In this case, Nichols's victims expected proper stewardship of their funds. He
told them the funds would be deposited in a non-interest bearing account for a
particular future use. The victims were not relying on Nichols to invest the funds but
to hold the funds until an estate closed. As such, the money was not transferred to
Nichols in his individual capacity and at his discretion. Thus, we hold that Nichols's
transfer of money from the central account to different persons and gambling
accounts provided sufficient proof of concealment for purposes of the money
laundering statute.

                    E. Venue for Money Laundering – Gomez
     Gomez, individually, contends that the United States District Court for the
Western District of Missouri lacked venue over the money laundering charges filed
                                          -17-
against him. According to Gomez, because all the facts supporting money laundering
occurred in California, the district court in Missouri was not a place of proper venue.
For support, Gomez relies entirely on United States v. Cabrales, 524 U.S. 1 (1998).

       In Cabrales, the United States Supreme Court held that Missouri was not a
place of proper venue for money laundering offenses which were begun, conducted
and completed in Florida even though the sums which defendant deposited were
allegedly derived from illegal narcotics activity in Missouri. As in Cabrales, the
actual money laundering portion of Gomez's crime spree occurred wholly within the
state of California. Significantly, in Cabrales, the Court carefully prefaced the
opinion by explaining that the defendant was neither alleged to have transported
funds from Missouri to Florida, nor was she charged with participation in the illegal
activity in Missouri. Cabrales, 524 U.S. at 4. The Supreme Court approved of our
pronouncement that "[m]oney laundering . . . might rank as a 'continuing offense,'
triable in more than one place, if the launderer acquired the funds in one district and
transported them into another." Id. at 8. Also, the Court was careful to explain that
Cabrales was not charged with a conspiracy that would link her to the acts perpetrated
in Missouri. Id. at 7.

        In this case, Gomez was charged with causing money obtained by fraud to be
transported from Missouri to California. In addition, Gomez was charged with a
conspiracy linking him to fraudulent acts committed in Missouri. Gomez was
convicted of interstate transportation of property stolen by fraud. As such, this case
is distinguishable from Cabrales. We conclude that venue was proper in Missouri,
a state where much of the fraud perpetrated by Gomez was initiated. See Prosper v.
United States, 218 F.3d 883 (8th Cir. 2000) (holding that venue was proper for
participation in a money-laundering conspiracy in which defendant, who had entered




                                         -18-
a guilty plea, admitted to commission of overt acts in the jurisdiction where he was
tried).7

                 F. Exclusion of Dr. Burgess's Testimony – Nichols
       Lastly, Nichols contends that the district court erred in excluding the testimony
of his defense expert, Dr. Stanley Burgess. Nichols sought to introduce the testimony
of Dr. Burgess, a professor in religious studies, concerning the religious beliefs held
by members of Nichols's church. The district court ruled that Dr. Burgess's testimony
was irrelevant. We review the exclusion of expert testimony for an abuse of
discretion. United States v. Rushing, 388 F.3d 1153 (8th Cir. 2004).8

       A district court enjoys broad discretion in its determination of relevancy and
reliability of expert testimony. United States v. Robertson, 387 F.3d 702 (8th Cir.
2004). "Expert evidence can be both powerful and quite misleading because of the
difficulty in evaluating it. Because of this risk, the judge in weighing possible
prejudice against probative force under Rule 403 of the present rules exercises more
control over experts than over lay witnesses." Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 595 (1993) (quotation omitted).




      7
        We also note that an amendment to the money laundering statute, 18 U.S.C.
§ 1956(i)(B), made after Gomez was indicted but before his trial, provides for venue
in Missouri. Amendment to a venue statute is a procedural change applicable to suits
filed prior to amendment. See Moore v. Agency for Intern. Dev., 994 F.2d 874 (D.C.
Cir. 1993); Penrod Drilling Co. v. Johnson, 414 F.2d 1217 (5th Cir. 1969). Thus,
venue was also proper under the amended version of the statute.
      8
       Nichols attempts to distinguish Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993), as the controlling precedent by citing to Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137 (1999). However, in Kumho, the United States Supreme
Court held that the Daubert "gatekeeping" obligation applies not only to "scientific"
testimony, but to all expert testimony. 526 U.S. at 147.
                                         -19-
       According to Nichols, "the defense's purpose for attempting to introduce Dr.
Burgess's testimony was to show the jury that Nichols was not simply professing
certain religious beliefs in an attempt to win sympathy or confuse the jury." The case,
however, was not about religious convictions in general or Nichols's specific religious
beliefs; rather, the critical issues pertained to the elements of fraud and money
laundering. The nature and sincerity of Nichols's religious beliefs was not before the
court or necessary to Nichols's defense. We cannot say that the district court abused
its discretion in refusing to allow Dr. Burgess's testimony.

                                III. Conclusion
     For the reasons discussed above, we affirm the conviction and sentences of
Nichols and Gomez.

HEANEY, Circuit Judge, concurring.

       I continue to believe that a defendant's challenge to the factual basis for a
sentence enhancement preserves his Sixth Amendment sentencing claim. See United
States v. Pirani, 406 F.3d 543, 555-62 (en banc) (Heaney, J., dissenting). Moreover,
I adhere to the view stated by Judge Bye in Pirani that defendants who did not
properly preserve their Booker claims in the district court are nonetheless generally
entitled to resentencing under a constitutional regime. Pirani, 406 F.3d at 562-67
(Bye, J., dissenting). Because a majority of our court held to the contrary on both
counts, however, I concur.
                        ______________________________




                                         -20-
