United States of America v. Richard Richard G. Maike (22-6114/23- 5563)

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 25a0316n.06
Nos. 22-6114/6121/23-5029/5560/5561/5563
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD RICHARD G. MAIKE (22-6114/23-
5563); DOYCE G. BARNES (22-6121/23-5561);
FARADAY HOSSEINIPOUR (23-5029/5560),
Defendants-Appellants.
)
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
KENTUCKY
UNPUBLISHED APPENDIX
Before: McKEAGUE, KETHLEDGE, and NALBANDIAN, Circuit Judges.
KETHLEDGE, Circuit Judge. “When a party comes to us with nine grounds for reversing
the district court, that usually means there are none.” Fifth Third Mortg. Co. v. Chicago Title Ins.
Co., 692 F.3d 507, 509 (6th Cir. 2012). The defendants here come to us with several times that
number, with the same result. This unpublished appendix addresses the arguments we chose not
to address in today’s published opinion. See United States v. Barnes, -- F.4th --- (6th Cir. 2025).
I.
As we discussed at greater length in the published opinion, Infinity 2 Global (I2G) was a
pyramid scheme that operated from February 2013 until December 2014. The defendants were
three of its leaders: Richard Maike was the president, Doyce Barnes was the vice president for
sales, and Faraday Hosseinipour was a top distributor. In 2022, a jury convicted the trio of
conspiracy to commit mail fraud and conspiracy to commit securities fraud, and convicted Maike

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of money laundering and tax evasion. They challenge those convictions. Barnes also challenges
his sentence, and Maike challenges an order that he pay restitution.
II.
A.
The defendants first challenge various aspects of the jury instructions as well as the court’s
answer to a jury question. We review jury instructions for an abuse of discretion, though we review
their legal accuracy de novo. United States v. You, 74 F.4th 378, 391 (6th Cir. 2023).
1.
Barnes and Hosseinipour argue that the court’s instruction about good faith was legally
inaccurate. If a defendant believes, in good faith, that his false or misleading statements were true,
he cannot form an intent to defraud. See United States v. Daniel, 329 F.3d 480, 488 (6th Cir.
2003). But a good-faith belief that a venture will ultimately succeed does not excuse false
statements that a defendant makes to induce others to join that venture. United States v. Kennedy,
714 F.3d 951, 958 (6th Cir. 2013). Here, the court instructed the jury that a defendant’s belief
“that the venture will eventually meet his or her expectations” did not constitute the sort of good
faith that vitiates the defendant’s intent to defraud. We have upheld the legal accuracy of this very
instruction for at least 40 years—because “no matter how firmly the defendant may believe in the
plan, his belief will not justify baseless, false, or reckless representations or promises.” See United
States v. Stull, 743 F.2d 439, 446 (6th Cir. 1984) (citation omitted). The defendants here may have
genuinely believed in their scheme’s potential to succeed; but if they deceived others in pursuit of
that potential, they conspired to commit fraud. See Sixth Cir. Pattern Crim. Jury Instr. § 10.04(3)
(2023). The court’s instruction on this point was accurate.

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2.
Barnes and Hosseinipour next argue that the district court’s instruction defining “intent to
defraud” as an intent to “cheat or deceive” was improper because the instruction did not also say
that the scheme must deprive someone of something. See Shaw v. United States, 580 U.S. 63, 72
(2016). But this argument simply ignores the second half of the sentence that they contend is
problematic. The court said that, to convict the defendants, the jury must find that they acted “with
an intent to deceive or cheat for the purpose of depriving another of money or property.” We
therefore reject this argument.
3.
Barnes and Hosseinipour lodge one further objection to a jury instruction. They did not
raise this objection at trial, however, so we review it only for plain error. See United States v.
Morrison, 594 F.3d 543, 546 (6th Cir. 2010). These defendants now argue that an instruction that
referred to “victim-investors” improperly commented on the evidence “in a manner that implies
guilt.” See Buchanan v. United States, 244 F.2d 916, 920 (6th Cir. 1957). We grant that the term
“victim” implies that some wrong occurred. But one ill-advised word did not make these jury
instructions, taken as a whole, “so clearly erroneous as to likely produce a grave miscarriage of
justice.” Morrison, 594 F.3d at 546. We thus hold that the district court made no error, plain or
otherwise.
4.
Finally, all three defendants argue that the court erred in its answer to a jury question. We
review answers to jury questions for an abuse of discretion and uphold them unless, taken as a
whole, the answers rendered the jury instructions “confusing, misleading, and prejudicial.” United
States v. Fisher, 648 F.3d 442, 447 (6th Cir. 2011). Here, the jury asked whether it could “use the

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evidence from the whole case to determine if the positions sold are/were a security” or whether it
was limited to considering “just the purchase within the statute of limitations.” The court
responded: “You are permitted to use any evidence which you deem appropriate to consider
whether the positions sold are/were a security. You are not limited to the evidence regarding the
purchase within the statute of limitations.” The defendants contend that this response implied that
a purchase had, in fact, occurred within the statute-of-limitations period—a factual question that
was in dispute. But the court’s response simply quoted the language from the jury’s question,
which itself implied that the jury had already determined that a purchase had occurred within the
statute of limitations. The answer was thus neither confusing, nor misleading, nor prejudicial—so
the court did not abuse its discretion.
B.
The defendants next argue that the prosecution for conspiracy to commit securities fraud
was time-barred. To convict a defendant of that offense, a jury must find that the defendant, or a
co-conspirator, committed an overt act that occurred within the five-year statute of limitations and
that was alleged in the indictment. See United States v. Smith, 197 F.3d 225, 228 (6th Cir. 1999);
see also 18 U.S.C. § 3282. Here, the grand jury returned the second superseding indictment on
November 13, 2019, so an overt act must have occurred after that date in 2014. Although the
indictment listed 20 sales, 19 took place before November 13, 2014. The twentieth sale—to an
investor known as S.H.—occurred on November 25, 2014.
The crux of the defendants’ argument is that this November 25 sale actually occurred in
October, when S.H. wired his money to I2G distributor Scott Magers. But Magers did not deposit
those funds into an I2G bank account until November 25, which is when S.H. became an Emperor.
And the “case law gives ample support to the proposition that payment is an integral and often

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final term in a conspiracy.” United States v. Schaffer, 586 F.3d 414, 424 (6th Cir. 2009) (cleaned
up). The exchange of funds is a two-sided transaction: on one side the payment and on the other
the receipt of those funds. I2G’s receipt of those funds was therefore an overt act that occurred
within the statute-of-limitations period. Maike also contends that I2G’s receipt of payment does
not count as an overt act because that act was not itself criminal. But an act need not be criminal
to count as an overt act in furtherance of a conspiracy. Braverman v. United States, 317 U.S. 49,
53 (1942). Maike’s arguments are meritless.
Meanwhile, Barnes and Hosseinipour also argue that the jury instructions permitted the
jury to convict without finding that this final sale had occurred. The court’s instruction said, “For
you to return a guilty verdict on the conspiracy charge in Count 13, the government must convince
you beyond a reasonable doubt that at least one overt act was committed for the purpose of
advancing or helping the conspiracy after November 13, 2014.” That same instruction’s list of
overt acts included only one act that had occurred after that date. Hence the jury could not convict
the defendants without finding that this final sale had occurred.
C.
The defendants next challenge the district court’s failure to give an instruction that limited
how the jury could consider the testimony of Richard Anzalone. The parties agree that the court
should have given a limiting instruction after the jury heard that Anzalone—an indicted co-
conspirator of Barnes and Hosseinipour—had pled guilty to conspiracy to commit securities fraud.
A co-conspirator’s guilty plea is not admissible as substantive evidence of a defendant’s guilt.
United States v. Benson, 591 F.3d 491, 498 (6th Cir. 2010). When a guilty plea is introduced, the
district court must instruct the jury that it may use that plea “only to determine the testifying
witness’s credibility.” United States v. Sanders, 95 F.3d 449, 454 (6th Cir. 1996); see also Fed.

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R. Evid. 105. A court errs if it fails to give that instruction. United States v. Modena, 302 F.3d
626, 631-32 (6th Cir. 2002).
The government contends that the court’s error here was harmless. To show that an error
was harmless, the government must demonstrate by a preponderance of the evidence that the error
“did not materially affect the verdict.” United States v. Kilpatrick, 798 F.3d 365, 378 (6th Cir.
2015). (Maike and Hosseinipour did not raise this issue at trial, so they bear the even-heavier
burden of demonstrating plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).) We
thus ask whether a jury would likely have convicted the defendants had the court given a proper
instruction—not whether the jury would likely have convicted the defendants without Anzalone’s
testimony at all. See Kotteakos v. United States, 328 U.S. 750, 764-66 (1946). Hence the inquiry
focuses on whether the jury likely used the testimony for the improper purpose of inferring guilt
by association. Although the risk that a jury will assume such guilt is present whenever a testifying
co-conspirator has pled guilty to the same conspiracy in which the remaining defendants are
charged, “much of this potential for prejudice is negated when the pleading codefendant
. . . testifies regarding the specific facts underlying the crimes in issue.” United States v. Christian,
786 F.2d 203, 214 (6th Cir. 1986).
Here, Anzalone’s guilty plea was mentioned twice during the government’s case. First,
the government’s opening statement said that Anzalone—whom the prosecutor called
Hosseinipour’s “partner in this crime”—had already pled guilty “in this case.” Later, the
government began its direct examination of Anzalone by asking him whether he had pled guilty to
conspiracy to commit securities fraud. He said that he had. The prosecutor then asked Anzalone
whether he had “also commit[ed] the crime in Count 1, the conspiracy to commit mail fraud.”
Anzalone replied, “I believe so, now that I understand it.” Anzalone then proceeded to testify for

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four days about how I2G marketed Emperor packages, what he and Hosseinipour told prospective
distributors, and how much money he and other distributors made from the scheme.
Anzalone’s testimony provided an insider’s perspective on how I2G defrauded its
distributors. Throughout his testimony, the government displayed emails between defendants as
well as agendas and videos from promotional events, and Anzalone explained how that evidence
fit into I2G’s fraudulent scheme. For example, Anzalone testified that I2G’s events lured potential
investors by emphasizing the casino: “[T]he exciting part of [I2G] was, and what got us going,
was the rev—the, excuse me, profit sharing of the—of the casino. That’s what really got the
program going. . . . [M]any people believed, you know, I get—I need to get as many shares as
possible, because this thing could be huge.” Anzalone also demonstrated the sales pitch he used
when selling distributor packages, which was based on an I2G PowerPoint presentation. While
demonstrating his sales pitch, Anzalone described how he misled potential distributors about both
the features and the availability of the I2G Touch: “It had many, many different features. I would
talk about the features it had. A lot of which never worked.” These statements illustrated the
deception at the core of I2G’s marketing strategy. Anzalone’s guilty plea thus bore only on his
credibility and his motivation to testify.
Moreover, the court gave the jury some instructions that focused on Anzalone’s credibility.
Specifically, the instructions pointed out that the government had agreed to recommend that
Anzalone receive a reduced sentence “in exchange for his cooperation.” The court then told the
jury to “consider Richard Anzalone’s testimony with more caution than the testimony of other
witnesses” and to consider whether it “may have been influenced by the government’s promise.”
The court also instructed the jury that it must reach an independent conclusion about each
defendant’s guilt and should “not let the possible guilt of others influence [its] decision in any

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way.” In the end, both the nature of Anzalone’s testimony and the court’s other instructions to the
jury provide “fair assurance” that the district court’s failure to give a specific limiting instruction
about Anzalone’s guilty plea did not materially affect the jury’s verdict. Kotteakos, 328 U.S. at
765. We therefore hold that the court’s error in failing to give this instruction was both harmless
and not plain.
D.
The defendants also raise several issues related to the indictment.
1.
Barnes and Hosseinipour argue that the district court lacked jurisdiction in these cases
because the mail-fraud indictment failed to allege that they had a specific intent to defraud.
Indictments must contain the elements of the charged offense along with enough facts to put
defendants on notice of the charges against them so that they can mount a defense. See Hamling
v. United States, 418 U.S. 87, 117 (1974). But an indictment that charges a conspiracy need not
allege “with technical precision” the elements of the underlying crime that is the object of that
conspiracy. United States v. Superior Growers Supply, 982 F.2d 173, 176 (6th Cir. 1992). Here,
the indictment alleged that the defendants had “knowingly conspire[d]” to commit mail fraud and
that they had committed various overt acts to further that conspiracy. Those overt acts—such as
causing the purchase of Emperor packages on various dates listed in the indictment—gave the
defendants ample notice of the charges against them. See United States v. McAuliffe, 490 F.3d
526, 531 (6th Cir. 2007). Hence the district court had jurisdiction.
2.
Maike argues in the alternative that his indictment was either constructively amended or
suffered from a prejudicial variance. Both implicate his Fifth Amendment grand-jury right and

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protections from double jeopardy, as well as his Sixth Amendment right to be informed of the
charges against him. United States v. Sittenfeld, 128 F.4th 752, 775 (6th Cir. 2025).
Maike’s arguments center on the jury instructions. The indictment, Maike says, referred
only to a pyramid scheme, while the jury instructions permitted the conviction to rest on unindicted
conduct—a general theory of fraud. In this way, he contends the instructions broadened the
possible bases of liability. Maike did not raise this objection at trial, so we review it only for plain
error. United States v. Kuehne, 547 F.3d 667, 682 (6th Cir. 2008).
A constructive amendment occurs when an indictment remains literally unchanged, but its
terms are altered because “events at trial raise a substantial likelihood that the defendant may have
been convicted of an offense other than the one charged in the indictment.” United States v.
Kettles, 970 F.3d 637, 648 (6th Cir. 2020). One way to constructively amend an indictment is if
the instructions effectively charge the jury on a “separate offense that was not listed.” Kuehne,
547 F.3d at 685. But when the “instructions alone differ from the indictment to charge a different
means for committing the same crime, a mere variance occurs and a defendant must demonstrate
prejudice.” Sittenfeld, 128 F.4th at 775. Prejudice in this context means the defendant’s
“substantial right[s]” were affected. Id. at 784 n.19.
To evaluate whether the government erred, we read the indictment “as a whole.” Id. at
781. This means we can look to the “introductory allegations,” the “scheme and artifice to
defraud” that the indictment describes, and the substantive counts. United States v. Bradley, 917
F.3d 493, 503 (6th Cir. 2019). Together, these are the government’s “specification of the ways in
which the defendant[] sought to accomplish” his crime. Id. And for the same reason they delimit
the relationship between the indictment, the proper jury instructions, and an impermissible
alteration.

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Here, Maike’s arguments hinge on a fundamental misreading of the indictment. In total, it
refers to a pyramid scheme twice in its 22 pages—both in the introductory allegations. By contrast,
the “scheme and artifice to defraud” describes a general theory of fraud, including how the
defendants made misleading statements, concealed material facts, and lied about the company’s
potential. No constructive amendment occurred. See Kettles, 970 F.3d at 648.
3.
For the same reason, no prejudicial variance occurred either. Mail fraud does not, as Maike
asserts, come in an “ordinary” variety that is distinct from a “pyramid scheme” variety. The core
of the offense is a “scheme and artifice to defraud.” Here, the indictment had an entire section so
labeled; that section never limited its scope to pyramid schemes. True, one way for the jury to
find that the defendants had devised a scheme to defraud was to find that the defendants had
established a pyramid scheme, and the government presented sufficient evidence for the court to
instruct the jury about what constitutes a pyramid scheme. The instructions cannot have departed
from the means alleged in the indictment if the instructions reflected two legally equivalent
options; juries may convict on any theory that an indictment fairly raises. See United States v.
Robinson, 99 F.4th 344, 366 (6th Cir. 2024).
E.
We make shorter work of the defendants’ remaining common arguments.
All three defendants challenge various rulings that admitted testimony from the
government’s expert witness, William Keep, and excluded testimony from their expert, Manning
Warren. Keep’s testimony both “rest[ed] on a reliable foundation”—his expertise in multilevel
marketing and his scrutiny of I2G—and was “relevant to the task” of evaluating I2G’s business
practices. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 597 (1993). Meanwhile,

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Warren did not establish that he had expertise regarding pyramid schemes. Hence the court did
not abuse its discretion by limiting Warren’s testimony to securities regulation, where he had
demonstrated expertise. See id. The court did not abuse its discretion on these points.
The defendants next raise six challenges to the admission of testimony from the
government’s lead case investigator, Agent Dave McClelland. They first contend that two
summary charts he presented lacked foundation. See Fed. R. Evid. 1006. The government
concedes that those charts—Exhibits 230 and 232—should not have been admitted, because some
of the evidence they summarized had not been admitted. But the record shows no reasonable
probability that these charts affected the jury’s verdict, so that error was harmless. See United
States v. Agrawal, 97 F.4th 421, 429 (6th Cir. 2024).
The defendants next contend that evidence of Barnes’s foreign bank account was irrelevant.
See Fed. R. Evid. 401. But the potential location of fraudulent proceeds could bear on the fraud’s
extent or nature, so we agree with the district court that the evidence was relevant. See United
States v. Streebing, 987 F.2d 368, 375 (6th Cir. 1993).
That leaves four hearsay objections to parts of McClelland’s testimony. See Fed. R. Evid.
802. First, the defendants challenge McClelland’s testimony about what motivated distributors to
purchase Emperor packages. That testimony was hearsay. But the participants themselves
testified at trial to the same facts, so any error from admitting McClelland’s similar testimony was
harmless. See United States v. Martinez, 588 F.3d 301, 313 (6th Cir. 2009). Second, the
defendants object to the admission of an email from one of the original I2G partners about his
plans to leave the company. But that email revealed the partner’s present state of mind—that
health and family reasons motivated his departure from I2G—so it falls within an exception to the
rule against hearsay. See Fed. R. Evid. 803(3). Third, the defendants object to McClelland’s

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testimony that an employee of Plus-Five Gaming (which ran I2G’s online casino) “provided an
answer” to his question about the company’s invoices. But that statement was not offered for its
truth because McClelland stated only that the employee “provided an answer,” not what that
answer was—the statement thus not hearsay at all. See Fed. R. Evid. 801(c). Finally, the
defendants object to McClelland’s identification of the I2G participants whose initials appeared in
the indictment. But that identification involved no out-of-court statements at all, so it too was not
hearsay. See id. We therefore reject these challenges to Agent McClelland’s testimony.
Barnes and Hosseinipour also assert that the government introduced false evidence, which
(they say) violated their due-process right to a fair trial. The government may not knowingly
present false evidence. Miller v. Pate, 386 U.S. 1, 7 (1967). To show that false evidence tainted
a jury’s verdict, a defendant must demonstrate that evidence was both false and material and that
the government knew of its falsity. United States v. Fields, 763 F.3d 443, 462 (6th Cir. 2014).
Here, the defendants contend that testimony based on Exhibit 101i—a spreadsheet containing I2G
participants’ earnings and losses—was false. That spreadsheet provided the basis for the
government’s expert witness, William Keep, to testify that 96 percent of I2G’s distributors lost
money. But the government elicited testimony from a computer programmer who compiled the
spreadsheet, Jerry Reynolds, about the spreadsheet’s limitations. Specifically, Reynolds testified
about the very deficiency to which the defendants point: that the spreadsheet might not have
included every payment that I2G made to participants, so it might overstate how many participants
lost money. Moreover, the defendants had ample opportunity to cross-examine both Keep and
Reynolds about anything that the spreadsheets contained. See United States v. Ward, 190 F.3d
483, 491 (6th Cir. 1999). No due-process violation occurred.

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Finally, Barnes argues that the government violated Brady and the Jencks Act when it
failed to disclose a memorandum that summarized an interview with Hosseinipour that IRS agent
Matt Sauber had conducted in March 2022. See Brady v. Maryland, 373 U.S. 83 (1963). A Brady
violation occurs when government suppresses material evidence that is favorable to the defendant.
United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007). In the interview at issue here,
Hosseinipour told Agent Sauber that she had believed and had relied upon various statements by
Maike, that she did not know what the casino’s actual profits were, and that she believed the casino
had long-term potential. If anything, these statements illustrate the fraud that permeated the
scheme, which would have been unfavorable to Barnes. No Brady violation occurred. Nor did
the failure to disclose the memorandum violate the Jencks Act. See 18 U.S.C. § 3500. The Jencks
Act requires the disclosure only of witness statements that relate to the subject of the witness’s
testimony. United States v. Susskind, 4 F.3d 1400, 1404 (6th Cir. 1993) (en banc). But Sauber did
not testify about any statements covered in the memorandum, so the Jencks Act does not apply.
F.
Apart from his conviction, Barnes argues that his sentence was procedurally unreasonable.
A court commits procedural error if it calculates a sentencing-guidelines range incorrectly. Gall
v. United States, 552 U.S. 38, 51 (2007). We review a guidelines calculation for an abuse of
discretion and the court’s underlying factual findings for clear error. United States v. Yancy, 725
F.3d 596, 598 (6th Cir. 2013).
Barnes first argues that the court overestimated the amount of economic loss that occurred
through the conspiracy. Under § 2B1.1(b) of the sentencing guidelines, if a crime causes economic
loss of greater than $25 million, a 22-level sentencing enhancement applies. The Sentencing
Commission’s Guidelines commentary explains that loss is the “greater of actual loss or intended

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loss.” USSG § 2B1.1 cmt. n.3(A). Barnes contends that the ordinary meaning of “loss” does not
cover “intended loss,” but our court has held otherwise. See You, 74 F.4th at 397-98. Here, over
the life of the scheme, I2G sold some 5,300 Emperor packages (though as noted elsewhere it never
had more than 5,000 Emperors at any one time). The district court, for its part, estimated the
intended loss by multiplying 5,000 Emperor packages by $5,000. That $25 million—along with
the monthly fees that Emperors were required to pay—easily puts the intended economic loss of
the Emperor program above $25 million. The district court thus made a “reasonable estimate” of
the intended economic loss, which is all the guidelines require. See United States v. Wendlandt,
714 F.3d 388, 393 (6th Cir. 2013). Barnes also contends that the court erred by failing to offset
the value of the products that Emperors received against the $25 million loss estimate. But the
evidence showed that those products were mostly worthless. The district court’s intended-loss
calculation was not clearly erroneous.
Barnes next argues that the district court lacked sufficient evidence to apply a four-level
sentencing enhancement for causing “substantial financial hardship” to at least five victims. See
USSG § 2B1.1(b)(2). The guidelines define such hardship to include, among other things,
“substantial loss” of one’s retirement savings, “substantial changes” to one’s living arrangements,
and “substantial harm” to one’s ability to obtain credit. USSG § 2B1.1, cmt. 4(F). Here, victim-
impact statements made clear that I2G caused dozens of people to lose their life savings, their
ability to pay rent, or their ability to obtain a mortgage. The district court thus did not clearly err
when it concluded that I2G had caused substantial financial hardship for at least five victims.
In any event, the district court flatly rejected the sentencing guidelines’ usefulness in
determining Barnes’s sentence. At Barnes’s sentencing hearing, the court said that the guidelines
range of 262 to 327 months was “grossly disproportionate” and called the guidelines “not helpful

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in calculating” Barnes’s sentence. Instead, the court based Barnes’s sentence on Maike’s ten-year
sentence, and concluded that an eight-year sentence would be “proportional” for Barnes. Barnes’s
deteriorating health led the court to go even lower. Concerned that eight years might turn out to
be a life sentence, the court sentenced Barnes to 48 months—about one-sixth the length of the
original guidelines range. Any minor errors in the calculation of that range thus would have been
harmless anyway.
G.
Hosseinipour separately argues that her attorney was constitutionally ineffective. After the
jury announced its verdict, Hosseinipour—through a new attorney—moved for a new trial based
on an alleged violation of her Sixth Amendment right to counsel. See Fed. R. Crim. P. 33. We
review the denial of a motion for a new trial for an abuse of discretion. See United States v.
Anderson, 76 F.3d 685, 692 (6th Cir. 1996). A district court abuses its discretion “when it relies
on clearly erroneous findings of fact, uses an erroneous legal standard, or improperly applies the
law.” United States v. White, 492 F.3d 380, 408 (6th Cir. 2007).
Rule 33 permits a court to grant a defendant’s motion for a new trial when the “interest of
justice so requires.” See Fed. R. Crim. P. 33(a). A Sixth Amendment violation “clearly meets this
standard.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010). To establish that counsel
was constitutionally ineffective under the Sixth Amendment, a defendant must show two things.
First, she must show that her attorney’s performance “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, she must prove
“that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.

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Here, Hosseinipour offered sworn affidavits that alleged various deficiencies in the
performance of her attorney, Wayne Manning (who is also her brother-in-law). Those affidavits
recited that, at trial, Manning had failed to make various objections, or to impeach certain
witnesses. But we agree with the district court that the record shows no prejudice to Hosseinipour
at trial. Among other things, counsel for Hosseinipour’s co-defendants—whose interests largely
aligned with her own—ably represented their clients’ interests through objections and motions
throughout the trial, which served Hosseinipour’s interests too.
That leaves Hosseinipour’s claim that Manning’s pre-trial representation was ineffective.
She emphasizes three points. First, she alleges that Manning never told her about the elements of
the charges against her or about her range of possible sentences. Second, she alleges that Manning
breached the attorney-client privilege by disclosing her defense strategy to the government and to
her co-defendants. Third, she alleges that Manning told her she would be committing perjury if
she accepted the government’s offer of a plea deal—which allegedly would have come with a
recommendation of no jail time. She further alleges that she would have accepted the deal had
Manning not given her bad advice.
The district court chose not to hold an evidentiary hearing about these allegations, and
instead denied Hosseinipour’s motion based on its own “recollection of the trial and the record.”
Yet that recollection was mistaken in at least one respect. Specifically, the court’s order described
a pre-trial colloquy in which, the order said, Hosseinipour had acknowledged that she discussed
the plea offer with her attorney. The court also recalled, mistakenly, that Hosseinipour had said
she understood the penalties she was facing and that she “had knowingly chosen to proceed to trial
notwithstanding the potential risks.” But that colloquy never happened. The court’s denial of
Hosseinipour’s motion thus rested on a factual finding that was clearly erroneous, and she had no

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opportunity to correct that finding through an evidentiary hearing. Hence we must vacate the
district court’s order.
On remand, the district court can exercise its discretion as to whether to hold an evidentiary
hearing about Manning’s pre-trial performance. See United States v. Bass, 460 F.3d 830, 838 (6th
Cir. 2006). The parties can also address whether a motion for a new trial under Criminal Rule 33
is a proper means to seek relief for allegedly ineffective pre-trial assistance. See generally Lafler
v. Cooper, 566 U.S. 156, 171-72 (2012). In this appeal, we hold only that the district court’s denial
of the motion rested on a clearly erroneous factual finding, which was an abuse of discretion.
H.
Maike challenges his convictions—as well as an order that he pay restitution—on several
other grounds. Initially, we consolidated his appeal only with respect to issues common to Barnes
and Hosseinipour. But with the benefit of supplemental briefing from Maike and from the
government, we now address Maike’s remaining arguments here.
1.
Maike argues that the court abused its discretion by admitting an IRS agent’s testimony,
which Maike says fell outside the scope of the government’s pretrial disclosure. We review the
admission of evidence for an abuse of discretion. United States v. Jenkins, 593 F.3d 480, 484 (6th
Cir. 2010). Under the version of Criminal Rule 16 in effect at the time relevant here, the
government was required, upon the defendant’s request, to provide a summary of any expert
testimony that it intended to offer at trial. Fed. R. Crim. P. 16(a)(1)(G) (2013). If the government
failed to do so, a district court had discretion to grant a continuance or to prohibit admission of the
undisclosed evidence. Fed. R. Crim. P. 16(d)(2) (2013).

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The disclosure here concerned the government’s allegation that Maike had evaded taxes
by underreporting his income. Specifically, the government alleged that Maike had laundered
some of his I2G income into loans from an I2G affiliate, which he then used to purchase two farms
in Kansas. Accordingly, the government disclosed that Paula Basham—an experienced IRS agent
and auditor—would “explain the unsurprising conclusion that if Maike had included the Kansas
land purchases on his taxes, he would have had tax due.”
At trial, Maike objected to a line of questions that, in his view, fell outside this disclosure.
The government had asked Basham about potential “red flags” that the IRS would use to determine
that an instrument “may look like a loan, but [is] not actually a loan.” Basham testified that those
indicators could include a lengthy repayment term, a below-market interest rate, no security, and
other indicators that the transaction was not conducted at arm’s length. She also testified that
Maike’s loans for the Kansas farms had these red flags. Maike now argues that this testimony was
expert testimony that—in violation of Rule 16—the government failed to disclose.
But any such nondisclosure was harmless. The district court’s colloquy with Maike’s
attorney—after he objected to this testimony—showed that he was prepared to address all these
issues on cross-examination. And during cross Maike’s counsel capably did so. Nor, on appeal,
does Maike present any serious argument that he was prejudiced by the nondisclosure. Any error
in admitting Basham’s testimony was therefore harmless. See United States v. Tarwater, 308 F.3d
494, 516 (6th Cir. 2002).
2.
Maike argues that the government violated Brady. Maike’s accountant, Mike Pierce,
testified during the government’s case-in-chief at trial. After Pierce’s direct examination, the
government provided Maike’s counsel with an FBI 302 record of agents’ notes from their

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interview with Pierce. Those notes included a statement by Pierce that Maike “never refused to
give me anything, and whenever I asked for a backup document, he gave it to me.” Although the
government probably should have provided that statement to Maike’s counsel sooner, Maike has
not shown how that delay was material in the Brady sense. See Jalowiec v. Bradshaw, 657 F.3d
293, 306-08 (6th Cir. 2011). The statement itself was simple, and Maike’s counsel had ample time
to prepare his cross-examination of Pierce on that point. No Brady violation occurred. See United
States v. Presser, 844 F.2d 1275, 1283-84 (6th Cir. 1988).
3.
Maike also argues that the district court’s jury instruction on the “advice-of-accountant”
defense misstated the relevant law. Suffice it to say we disagree.
4.
Maike challenges the district court’s order that he pay $5.2 million in restitution. Under
the Mandatory Victims Restitution Act, a district court must order restitution for “any offense
committed by fraud or deceit” in which an identifiable victim suffered a loss. 18 U.S.C.
§ 3663A(c)(1)(A)(ii). We review a district court’s restitution calculation for an abuse of
discretion. United States v. Sawyer, 825 F.3d 287, 292 (6th Cir. 2016).
Here, the district court’s restitution order had two components: one required Maike to pay
restitution to victims of I2G; the other required him to pay the government amounts that he had
evaded paying in taxes. Maike contends that the restitution order failed to account for refunds that
I2G had previously paid to some distributors. But none of those distributors are among the 434
victims to whom the district court ordered that Maike pay restitution. And we are satisfied that
the district court’s calculation of that component of its order represents a reasonably precise
estimate, which is all that the statute requires. See Kilpatrick, 798 F.3d at 388.

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Maike likewise challenges the amount he owes to the government for tax evasion. The
court ordered Maike to pay the government $936,540—which was 39.6 percent of the $2.3 million
loan that he failed to report as income. Suffice it to say Maike had not shown any error in that
determination.
* * *
As we recited in our published opinion, the defendants’ criminal judgments are affirmed;
except that we vacate the district court’s December 29, 2022, order denying Hosseinipour’s motion
for a new trial. We remand her case to the district court for the limited purpose of deciding that
motion anew, consistent with our decision here.

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