United States of America v. John Nock

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1603
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
John Nock
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 24-1713
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brian Brittsan
lllllllllllllllllllllDefendant - Appellant
___________________________
No. 24-1714
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee

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v.
Kevin Griffith
lllllllllllllllllllllDefendant - Appellant
____________
Appeals from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: June 10, 2025
Filed: August 7, 2025
____________
Before COLLOTON, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
____________
ARNOLD, Circuit Judge.
A jury found John Nock, Brian Brittsan, and Kevin Griffith guilty of several
counts of conspiracy and wire fraud stemming from their participation in an
investment scheme, and the district court1 sentenced each of them to a decade or more
in prison. On appeal, they challenge several aspects of their convictions and
sentences. Finding none of their challenges persuasive, we affirm.
According to the indictment, the three defendants carried out their scheme
through a purported investment firm known as The Brittingham Group, which we will
call "Brittingham." Nock and Brittsan were alleged to have solicited investors to give
Brittingham large sums of money, and in return, they assured the investors that they
would receive large returns quickly. For example, the indictment notes that Nock and
1The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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Brittsan promised returns reaching "as much as 200 percent or 300 percent within 20
to 30 days." The indictment explains several ways in which the defendants misled
investors, as, for instance, by misrepresenting that Brittingham's office was located
on Wall Street, that Brittingham was pursuing legitimate investments, that
Brittingham had a history of successful investments, and that the investors' money
was not at risk. One way they convinced investors that their money was not at risk
was by giving them "fraudulent letters on third-party letterhead, including the
letterhead of financial institutions." Once Nock and Brittsan convinced investors to
part with their money, the indictment continues, they would direct the investors to
send money to accounts that others in the scheme like Griffith controlled, and they
"then transferred the money through a complex web of bank accounts throughout the
world."
Investors understandably asked questions once they didn't receive the money
they expected, and when they did, the indictment says that the defendants worked
together "to craft the stories that they told the victims in order to conceal the
fraudulent nature of the scheme." The defendants allegedly collaborated in drafting
misleading communications offering excuses why investors hadn't received what was
promised, and they even sometimes falsely claimed that high-level government
officials were involved in delaying transactions or in guaranteeing that money would
be safely returned to investors. None of the investors, however, ever received any
investment gains, and most never saw the return of their contributions. All told, the
defendants allegedly obtained more than sixteen million dollars from investors. As
a result, each defendant was charged with conspiracy to commit wire fraud, see 18
U.S.C. § 1349, nine counts of wire fraud, see id. § 1343, and conspiracy to commit
money laundering, see id. § 1956(h). Nock was also charged with an additional count
of money laundering, see id. § 1957, and the government sought forfeiture of
proceeds derived from the scheme.
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Less than two months before trial was scheduled to begin, Nock asked the
district court to remove his appointed counsel, Ken Osborne, and permit Nock to
obtain another attorney. He also asked the court to afford his new attorney time to
review the case and develop a defense. Nock advised that Osborne had not
communicated with him much despite the upcoming trial, and he complained that
Osborne had not provided or reviewed with him what Nock called "massive
document sets" even though Nock believed this to be a complex case. So Nock
surmised that Osborne had not spent the time necessary to understand the case or
develop an adequate defense.
Osborne responded the next day and said that he had "reviewed an enormous
amount of discovery" and had met with counsel for the other defendants three times
to prepare a joint defense. He explained that he had met with Nock a few weeks
before and that he had never prevented Nock from visiting his office. In fact, Osborne
related, he had tried to schedule three additional appointments with Nock the week
before Nock's request to substitute counsel but that Nock had "chosen to miss" them.
Osborne also advised that, once the government provided witness and exhibit lists in
the coming days, he was going to "step up our meetings on a significant basis." In
short, Osborne assured the court "[t]hat in spite of the voluminous discovery, this case
is straightforward and as counsel for Mr. Nock I am fully prepared to try it."
The district court referred Nock's request to a magistrate judge2 who conducted
an extensive hearing where Osborne and Nock reiterated their positions on the matter.
The magistrate judge ultimately denied Nock's request. She told Nock that "it cannot
be laid solely at the feet of Mr. Osborne that you and he have not gotten together" as
much as Nock would have liked. It also appeared to her that Osborne had been
working on the case by "meeting with counsel, talking to the government, reviewing
2The Honorable Christy D. Comstock, Chief Magistrate Judge for the Western
District of Arkansas.
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discovery, those sorts of things." The magistrate judge also noted that in her
experience "Osborne is an effective counselor," particularly in criminal cases, who
is "experience[d]," "smart," and "canny," and she recognized that she had "to keep the
train on the tracks and to prevent delay." Believing that Nock and Osborne were "on
the cusp" of "rolling up [their] sleeves" to prepare for trial, she told Nock that he had
"the right counsel to be ready for trial," though she invited him to renew his request
for new counsel if the circumstances changed. He didn't do so again until after trial.
On appeal, Nock maintains that the magistrate judge should have granted his
request because he demonstrated justifiable dissatisfaction with Osborne. The Sixth
Amendment guarantees a criminal defendant the right to the assistance of counsel.
See United States v. Baisden, 713 F.3d 450, 454 (8th Cir. 2013). To be entitled to
different counsel after one has been appointed, a defendant must demonstrate
"justifiable dissatisfaction" with appointed counsel. See id. It is not enough that the
defendant is frustrated with counsel for not sharing his tactical opinions so long as
counsel continues to provide zealous representation. See id. A court facing a motion
for new counsel must weigh several concerns, including "the need to ensure effective
legal representation, the need to thwart abusive delay tactics, and the reality that a
person accused of crime is often genuinely unhappy with an appointed counsel who
is nonetheless doing a good job." See United States v. Barrow, 287 F.3d 733, 738 (8th
Cir. 2002).
Nock's challenge arguably stumbles out of the gate because he failed to object
to the magistrate judge's denial of his request. Nock had fourteen days to object to the
magistrate judge's decision, and by failing to do so, he waived his right to seek review
in our court. See Fed. R. Crim. P. 59(a). We have said, though, that Rule 59(a) is a
"nonjurisdictional waiver provision" and that we may excuse violations of the rule in
the interests of justice, see United States v. Kelley, 774 F.3d 434, 439 (8th Cir. 2014),
which Nock encourages us to do here. But even if we agreed with Nock that the
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interests of justice excuse his failure to object, Nock would not prevail because the
magistrate judge committed no abuse of discretion here.
"Whether to grant a continuance and substitution of counsel is a matter
committed to the sound discretion of the district court." United States v. Harlan, 960
F.3d 1089, 1091 (8th Cir. 2020). In fact, the district court's "discretion is at its zenith"
when a defendant seeks to replace counsel shortly before trial. See United States v.
Cordy, 560 F.3d 808, 817 (8th Cir. 2009). Though there's no indication here that
Nock's request was a delay tactic, he did suggest that delay would result so his new
attorney could get up to speed.
The magistrate judge acted within her ample discretion in determining that
Nock hadn't demonstrated justifiable dissatisfaction with Osborne. There was no
irreconcilable conflict or complete breakdown in communication. Nock and Osborne
might have shared different opinions about the time needed for Osborne to digest the
case and formulate a defense, but this seems to reflect "the reality that a person
accused of crime is often genuinely unhappy with an appointed counsel who is
nonetheless doing a good job." See Barrow, 287 F.3d at 738. The magistrate judge
was also familiar with Osborne's record as an attorney and believed that he was the
right person for the job notwithstanding Nock's concerns. Telling too is that Nock
didn't renew his request for new counsel before trial began, as he was invited to do
if the circumstances suggested that Osborne was not in fact rolling up his sleeves to
prepare for trial. We see no reason to second-guess the magistrate judge's decision.
In a related contention, Nock says that Osborne rendered ineffective assistance
both before and during trial. As he acknowledges, though, claims of ineffective
assistance of counsel "are usually best litigated in collateral proceedings." See United
States v. Ramirez-Hernandez, 449 F.3d 824, 826–27 (8th Cir. 2006). Review on direct
appeal is appropriate "only where the record has been fully developed, where not to
act would amount to a plain miscarriage of justice, or where counsel's error is readily
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apparent." See id. at 827. This case presents none of these circumstances, cf. United
States v. Harriman, 970 F.3d 1048, 1060–61 (8th Cir. 2020), and so we decline to
consider his ineffective-assistance arguments.
For his next challenge, Nock says that the government's lead investigator,
Nathaniel Nantze, offered improper testimony during the trial. We ordinarily review
a district court's evidentiary rulings for an abuse of discretion, but since Nock did not
timely object to the relevant portions of Nantze's testimony, we review those rulings
only for plain error. See United States v. Broussard, 87 F.4th 376, 379 (8th Cir.
2023). To overcome this high standard, Nock must show that there was a clear and
obvious error that affected his substantial rights and seriously affected the fairness,
integrity, or public reputation of the proceedings. See id.
Nock takes issue with several aspects of Nantze's testimony, but after
reviewing the relevant portions of the trial transcript ourselves, we think Nock's
characterizations of Nantze's testimony are more rhetoric than reality. For example,
Nock says that Nantze impermissibly told the jury to find him and his co-defendants
guilty. In support, Nock points out that Nantze referred a few times to three
unindicted people as "co-conspirators" who worked on investments with Brittingham.
But Nantze never said that these unindicted people were conspiring with Nock. And
his comments were actually consistent with Nock's theory of the case. Nock didn't
dispute that investors were cheated out of money; rather, he argued that others had
duped both him and the investors. To borrow the more colorful language used in
Nock's opening statement at trial, the three defendants "went swimming with sharks
and they got bit." Nantze's infrequent mention of co-conspirators being involved
reflected at most a view (shared by Nock) that nefarious actors had tricked investors.
For much the same reason we see little harm in Nantze occasionally referring to some
investors as "victims." At no time did he say that the investors were victims of Nock
or any other defendant. Nantze's incidental references to the "victims" of fraud in the
circumstances cannot be said to have affected Nock’s substantial rights, even
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assuming they amounted to plain error in the first place. See United States v.
Alaboudi, 786 F.3d 1136, 1143–44 (8th Cir. 2015).
Nock also takes aim at Nantze's use of terms like "supposed" or "purported"
when describing Nock's representations or documentary evidence. For example, Nock
says that Nantze testified that a document reflected that Nock "supposedly" owned
funds, or that bank letters "purported" to be genuine. Nock asserts that these terms
suggested that the jury should believe the government's witnesses. Most if not all uses
of these terms actually occurred during the government's questions and not Nantze's
responses, but regardless, we discern no plain error. Given that Nantze was familiar
with the case, he almost certainly knew that the jury would be called on to resolve
particular issues such as whether certain documents were fake. His stating or
affirming what documents purported to show is neutral as to whether the jury should
find them fake or not. As the government explained, these terms "signal only that the
witness cannot independently vouch for the accuracy or authenticity of an exhibit or
representation; they do not state an opinion on any necessary determination by the
jury."
According to Nock, Nantze also interpreted legal agreements between
Brittingham and the investors and, when he did, "he ignored other caveats in the
agreements." For one thing, we think Nock's characterization of Nantze's testimony
is a stretch. For another, Nock was free to cross examine Nantze regarding portions
of the agreements that he wished to highlight. We see no plain error here.
The final evidentiary challenge we will address specifically is Nock's
contention that Nantze was improperly permitted to summarize emails and testify to
what he believed they illustrated. It is true that our court has "been skeptical of lay
testimony from law enforcement officers 'interpreting' evidence." See United States
v. Dierks, 978 F.3d 585, 592 (8th Cir. 2020) (citing United States v. Peoples, 250
F.3d 630 (8th Cir. 2001)). In Peoples, an officer in charge of investigating a murder
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testified about recorded conversations involving the defendants. See 250 F.3d at
639–40. The officer offered her opinion about the meaning of words the defendants
used, and she opined "about what the defendants were thinking during the
conversations, phrased as contentions supporting her conclusion, repeated throughout
her testimony, that the defendants were responsible for [the victim's] murder." See id.
at 640. And over objections by the defendants, the officer "was allowed to offer a
narrative gloss that consisted almost entirely of her personal opinions of what the
conversations meant." See id. The opinion highlighted examples of testimony where
the officer heard snippets of the recorded conversations and provided her own
interpretation of what the defendants' conversations meant, even prefacing her
interpretations with phrases like "I contend" or "I believe." See id. Troubled by this
narrative gloss, our court reversed the defendants' convictions and remanded for a
new trial. See id. at 642.
Nantze offered little if any "narrative gloss" here. The government used
Nantze's testimony to walk the jury through a factually complex case, and much of
his testimony consisted simply of him reading documentary evidence. Nock has
identified no instances where Nantze began his responses by stating that he "believes"
or "contends" that emails actually meant something other than what their plain
language suggests. We acknowledge, though, that Nock has raised a few potentially
troublesome points. For example, during the trial Nantze said that Nock sent money
to someone, and when the government asked what happened about a week later,
Nantze said that Nock sent the person "lulling language" without additional
explanation. That arguably could be an impermissible narrative gloss. But our scant
caselaw on the subject does not clearly delineate the line between proper lay witness
testimony and improper "narrative gloss," so any error here with respect to Nantze's
use of "lulling language" or the other borderline calls that Nock identifies was not
plain. It was up to Nock and his attorney to identify for the district court any
encroachments by the government and Nantze into impermissible territory. In our
adversarial system, we do not expect district courts to correct witnesses sua sponte
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for crossing indistinct lines when three separate defendants (and still two on appeal)
are content to let the witness's testimony stand uncorrected. As stated in a recent case
presenting a similar challenge, it is "plainly without merit" that "the district court was
obligated sua sponte to interrupt and strike testimony to which there was no
objection." See United States v. Williams, 41 F.4th 979, 984 (8th Cir. 2022). A
reversal in the circumstances would encourage defendants to lie in wait rather than
bring their concerns to the district court's attention for immediate correction.
But not only were any errors not plain, they alone or in the aggregate had no
effect on Nock's substantial rights. The existence of a few sporadic and fleeting
comments about relatively incidental matters over the course of a nine-day trial is not
enough to call the jury's verdict into doubt. And in most if not all instances, the
members of the jury could consider the materials Nantze testified about for
themselves, as he wasn't discussing matters not admitted into evidence, see United
States v. Garth, 540 F.3d 766, 778–79 (8th Cir. 2008), abrogation on other grounds
recognized by, United States v. Villareal-Amarillas, 562 F.3d 892, 895 (8th Cir.
2009), or interpreting coded language that the jury might not understand. See Dierks,
978 F.3d at 592–93; cf. Peoples, 250 F.3d at 640. We thus reject Nock's various
contentions about Nantze's testimony.
Nock also challenges the sentence that the court imposed, but we will turn first
to Brittsan's and Griffith's arguments that the evidence at trial was insufficient to
convict them. The government contends that neither of them preserved their
contentions for appellate review, but for purposes of this opinion we will assume that
they did. We review their challenges de novo, viewing the evidence in a light most
favorable to the jury's verdict. See United States v. Keck, 2 F.4th 1085, 1090 (8th Cir.
2021). We will overturn a conviction only if no reasonable jury could have found the
defendants guilty beyond a reasonable doubt. See id.
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Brittsan and Griffith both argue that, even if others had entered into an
unlawful conspiracy, there was insufficient evidence to suggest that they had joined
it. To convict Brittsan and Griffith of conspiracy, the government had to prove that
a conspiracy with an illegal purpose existed, that the defendants knew of the
conspiracy's purpose, and that they knowingly and voluntarily agreed to participate
in the conspiracy. See United States v. King, 898 F.3d 797, 808 (8th Cir. 2018). The
government need not show that an explicit agreement existed; a tacit or implied
understanding will suffice. See id. And even if the defendant held only a minor role
in the conspiracy, his conviction will be upheld. See id.
The government presented ample evidence from which a jury could find
beyond a reasonable doubt that Brittsan knowingly and intentionally joined an
unlawful conspiracy. Numerous investors testified that Brittsan made them promises
of quick, fanciful returns with virtually zero risk. At one point he even falsely
represented having access to a Boeing 747 that could pick up over one hundred tons
of gold. A jury could infer from such outlandish promises that Brittsan intended to
participate in a conspiracy to defraud. See Stromberger v. 3M Co., 990 F.2d 974, 978
(7th Cir. 1993). Some investors also testified that Brittsan had represented that
Brittingham had a record of investment success, though later while testifying under
oath in a civil proceeding Brittsan admitted that Brittingham had never completed a
single transaction or ever obtained any returns for a client. He even told law
enforcement at one point that one type of investment that Brittingham promised
investors it would pursue was actually "a 99 percent bullshit industry" and that
Brittingham "was grabbing after rainbows." Yet he represented Brittingham for years.
The record also showed that Brittsan sent investors fake letters from banks and others
to ease their concerns about their money, and some evidence suggested that Brittsan
prepared the fake letters himself. Brittsan's argument that the evidence against him
was insufficient is untenable.
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The evidence against Griffith presents a closer call, but we nonetheless hold
that a reasonable jury could find beyond a reasonable doubt that he knowingly and
intentionally participated in an unlawful conspiracy. Griffith emphasizes that he had
little interaction with Brittingham's investors and otherwise had only limited
involvement with Brittingham, suggesting that he didn't know Brittingham had any
unlawful objectives and that he didn't intend to commit fraud.
The government nonetheless introduced sufficient evidence to implicate
Griffith. It introduced evidence that Griffith helped Nock draft a fake bank record to
make it appear authentic. It also introduced evidence that Griffith forwarded fake
bank letters to others. For example, the government introduced an email from Griffith
to one Elysa Smith that contained a letter purporting to be from the Royal Bank of
Scotland representing that an account contained one hundred million euros with five
million dollars set aside as security for a potential investment. Representatives from
the Royal Bank of Scotland testified that the letter was fake. Griffith argues that the
government didn't show that Smith was a victim. In fact, says Griffith, he identified
Smith as a member of his "team" when he took the stand in his own defense. The jury
did not have to buy this, though, as the contents of the email suggest that Griffith was
attempting to induce someone to part with money in reliance on a fake letter, whether
it was Smith herself or someone that Smith might reach on Griffith's behalf. In the
exchange between Griffith and Smith, Griffith wrote, "You can opt to do this
transaction with either 2.5M or 5M," and he said that the purported bank statement
"will clearly state that the larger amount is fully protected." He went on to say in all
capital letters that the letter offered "full protection for this investment," making it
"completely secure with no risk and only upside."
Griffith testified (and continues to assert on appeal) that he didn't know at the
time that the letter was fake. But again, the jury did not have to believe him. Griffith
sent the email at a time when he was already on notice that Brittingham might be
trading in fake letters from the Royal Bank of Scotland. An unindicted participant in
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the conspiracy to whom the defendants sought to shift blame told Nock and Griffith
a couple years earlier that the Royal Bank of Scotland was accusing them of fraud and
"are really pissed [and] want to take all of us out." Just two weeks after Griffith
received that communication, he nonetheless asked that person to provide him with
a new bank statement from the Royal Bank of Scotland signed by two bank officers.
That person provided the statement, purportedly signed by two bank CEOs, just
eleven minutes later. The statement purported to show that an account contained
thirty billion euros. A jury could reasonably reject Griffith's assertions of innocence
and find from the circumstances that he knew the statements were fake, or at least that
he was wilfully blind to whether they were fake or not. See United States v. Hansen,
791 F.3d 863, 868 (8th Cir. 2015).
Other evidence implicated Griffith as well. Some showed that Griffith, like
Brittsan, vouched for a track record of success that didn't exist. He told concerned
investors who pointed out that Brittingham was involved in a civil Racketeer
Influenced and Corrupt Organizations suit that Nock "has been a very high send [sic]
security trader inside the US for decades" and a "trusted trader with net worth in the
hundreds of millions." And when those investors mentioned that the Wall Street
address was just a virtual office (which was true), Griffith disputed the allegation and
stated that Nock had had the address for "many years." Griffith admitted on the stand,
however, that he knew there was no physical office and that he was told it was only
a virtual office. Griffith would go on to vouch for Nock again just a few months after
warning Nock that he was at serious risk of criminal charges and at a time when
Griffith says he began to grow concerned about Brittingham. Griffith nonetheless
assuaged investor concerns about Nock by saying that he and Nock "had numerous
business transactions which have all been successful and highly professional," among
other plaudits. A reasonable jury could conclude that Griffith was knowingly
participating in a conspiracy.
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Griffith highlights some evidence that favors him. For example, he points to
emails he sent Nock in which he expressed concern that an unindicted participant in
the conspiracy might be causing financial harm to a particular investor thanks to the
"repeated misinformation" he had been providing. Griffith tells us (and told the jury)
that, if he had entered into a conspiracy with Nock, then "these emails make
absolutely no sense." But once again, the jury wasn't compelled to accept Griffith's
story. The jury could believe that by this point Griffith feared getting caught and so
was leaving a paper trail to cover his tracks. Or perhaps Griffith didn't want the
conspiracy's tentacles to ensnare a particular customer.
We are mindful that Griffith took the stand to assert his innocence, yet "the
jury, being the sole judges of the credibility of all testimony, was not bound to believe
this testimony and manifestly did not believe it, but from all the proven facts and
circumstances found that the defendant acted fraudulently." See Northcraft v. United
States, 271 F.2d 184, 187 (8th Cir. 1959). In sum, Griffith's contention that the
evidence was insufficient to support his conviction fails.
We now turn to the defendants' challenges to their sentences, beginning with
Nock. He maintains that the district court erred in sentencing him to 250 months in
prison because it miscalculated his recommended sentencing range under the
Sentencing Guidelines in two different ways. The first way, he says, is when the court
added two levels to his offense level by relying on the loss Nock intended to cause
rather than the loss he actually caused. See USSG § 2B1.1(b)(K)–(L). The Guidelines
in effect at the time Nock was sentenced contained commentary that said that "loss
is the greater of actual loss or intended loss." See id. § 2B1.1 cmt. n. 3(A) (2023). The
Supreme Court has called on courts to defer to Guidelines commentary, see Stinson
v. United States, 508 U.S. 36, 47 (1993), and indeed our court has applied the very
commentary at issue here. See, e.g., United States v. Holthaus, 486 F.3d 451, 454 (8th
Cir. 2007). But Nock insists that the legal landscape surrounding deference to
Guidelines commentary changed after the Supreme Court decided Kisor v. Wilkie,
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588 U.S. 558 (2019), and he says courts should no longer follow the commentary
here. At least one circuit agrees. See United States v. Banks, 55 F.4th 246, 255–58 (3d
Cir. 2022). But see United States v. Hackett, 123 F.4th 1005, 1013–15 (9th Cir. 2024).
Our court has explained, however, that even after Kisor we consider the
Guidelines together with their commentary, and a "lawfully adopted,
noncontradictory comment or application note that interprets or explains a Guideline
will be given controlling weight unless plainly erroneous." See United States v.
Donath, 107 F.4th 830, 838 (8th Cir. 2024); see also United States v. Cupples, 105
F.4th 1096, 1097–98 (8th Cir. 2024) (per curiam) (citing United States v. Rivera, 76
F.4th 1085, 1091 (8th Cir. 2023)). Our court, moreover, has applied the commentary
directing courts to use the greater of actual loss and intended loss even after Kisor.
See, e.g., United States v. Harris, 83 F.4th 1093, 1098 (8th Cir. 2023); United States
v. Ruzicka, 988 F.3d 997, 1012 (8th Cir. 2021). Precedent therefore forecloses Nock's
contention.
The second way in which the court supposedly miscalculated Nock's
sentencing range is by applying a two-level enhancement for abuse of trust.
According to the relevant Guideline, the enhancement applies "[i]f the defendant
abused a position of public or private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment of the offense." See USSG
§ 3B1.3. Applying this enhancement is "not a simple task," as "there is a component
of misplaced trust inherent in the concept of fraud." See United States v. Hayes, 574
F.3d 460, 479 (8th Cir. 2009). The enhancement therefore doesn't apply in every
fraud case; it applies when "the victim placed a special trust in the defendant beyond
the ordinary reliance on the defendant's integrity and honesty that underlies every
fraud scenario." See id. As the commentary to the relevant Guideline explains, the
enhancement applies where the fraudster has "professional or managerial discretion"
because he is "subject to significantly less supervision than employees whose
responsibilities are primarily non-discretionary in nature." See USSG § 3B1.3 cmt.
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n. 1. So the enhancement would apply to "a bank executive's fraudulent loan scheme,"
but not to "embezzlement or theft by an ordinary bank teller." See id.
We've affirmed application of the enhancement in cases similar to this one. For
example, in one case, we upheld it where a self-employed investment advisor subject
only to his investors' oversight swindled them out of money after promising to make
them sizable profits safely, only to keep the money himself. See United States v.
Rodd, 790 F.3d 873, 874–75 (8th Cir. 2015). In another, a defendant solicited
investments in his company with promises of a risk-free annual return but instead
diverted their investments for his personal use. See United States v. Anderson, 349
F.3d 568, 570 (8th Cir. 2003). Given that the defendant exercised complete discretion
over the investors' money, the enhancement was upheld. See id. at 573–74. We
discern no basis to distinguish those cases from Nock's, and even though the district
court relied on them in applying the enhancement, Nock does not attempt to
distinguish them.
Nock also points out that the enhancement by its terms does not apply "if an
abuse of trust or skill is included in the base offense level or specific offense
characteristic." See USSG § 3B1.3. But as just explained, not every fraud involves an
abuse of trust like the one the Guidelines contemplate, and nothing in Nock's
Guidelines calculation already accounted for the abuse of trust; so this feature of
Nock's offense was not double counted for purposes of punishment. See United States
v. Laurienti, 611 F.3d 530, 555–56 (9th Cir. 2010). The district court properly applied
the enhancement.
Returning to Brittsan and Griffith, they each argue that their sentence is
substantively unreasonable. Brittsan received a 120-month sentence, though the
Guidelines recommended a sentence between 168 to 210 months. He maintains that
the district court didn't give enough weight to his lack of criminal history, age, or
poor health, and he says that his sentence is longer than the average of what similarly
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situated defendants have received. We see no abuse of discretion here. The district
court identified and considered the relevant sentencing criteria and discussed several
mitigating circumstances at sentencing, including those Brittsan alludes to. He also
neglects to mention that his sentence is the median sentence according to the statistics
that he identifies. But more important, his sentence was considerably lower than the
sentence that the Guidelines recommended for his particular circumstances. "Where
the district court varied downward from the guidelines range, it is nearly
inconceivable that the court abused its discretion in not varying downward still
further." United States v. Matheny, 42 F.4th 837, 846–47 (8th Cir. 2022).
For Griffith, meanwhile, the Guidelines recommended a sentence of 135 to 168
months in prison, and the district court sentenced him to 150 months, or just below
the midpoint of the recommended range. A sentence within the Guidelines range is
presumptively reasonable. United States v. McDaniel, 59 F.4th 975, 982 (8th Cir.
2023). He too argues that the district court gave too little weight to his age, health,
and lack of criminal history. But as in Brittsan's sentencing hearing, the district court
carefully considered the relevant sentencing criteria and specifically took into account
the mitigating circumstances that Griffith identifies.
Griffith also points out that his sentence is well above the average and median
sentences of similarly situated defendants, but those bare statistics don't account for
the unique circumstances that Griffith presents. He also questions why he received
a higher sentence than Brittsan. But Griffith's and Brittsan's circumstances were
different. Griffith violated a court order while on pretrial release by sending money
overseas that might have otherwise been used to compensate victims here. The court
deemed his "lack of respect for the law in violating the Court's orders" as aggravating.
Griffith has simply failed to overcome the presumption that his within-Guidelines
sentence is reasonable.
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Finally, Griffith challenges a court order requiring him to forfeit $86,500. See
18 U.S.C. § 982(a). That total represents the sum of a $50,000 payment from Nock
and a $36,500 payment from one Willah Mudolo. Griffith says that he returned both
amounts, and so he shouldn't be ordered to pay them again. In his opening brief,
Griffith dedicated one sentence to his alleged return of Nock's money, stating without
citation to the record that he gave the money back either by returning it or by
distributing it as Nock directed. By failing to provide a meaningful argument in his
opening brief on this point, Griffith waived his contention. See Chavero-Linares v.
Smith, 782 F.3d 1038, 1040 (8th Cir. 2015).
As for Mudolo, Griffith says that he gave Mudolo $100,000. But Griffith never
demonstrated that this money was meant to return money, or in fact did return money,
to victims. According to defense counsel, Griffith sent Mudolo this money for
purposes of investment, not to pay down Griffith's debts to victims of the conspiracy.
Griffith also says that Mudolo wasn't a victim in the case, and nothing indicates
that the money Mudolo sent him was derived from illegal activity. It is true that the
court at Griffith's sentencing remarked that Mudolo's role in the conspiracy was
unclear, though as the government explains, he appeared either to be a co-conspirator
or at least "an unwitting patsy" that the conspirators used to entice victims and obtain
additional money. For example, the government introduced into evidence an email
from Griffith to Mudolo containing a letter that Griffith drafted for Mudolo to
forward that touted Brittingham's success and the safety of the investor's money. And
when Griffith received money from Mudolo, he plugged it into a pipeline of accounts
that masked its location, and it ultimately led to $36,500 in cash withdrawals by
Griffith. The district court did not clearly err in finding that the money from Mudolo
represented proceeds from the conspiracy.
Affirmed.
______________________________
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