Full opinion text
OPINION OF THE COURT SCIRICA, Circuit <}udge. This is an appeal from a judgment of sentence and certain pretrial rulings on a nolo contendere plea entered by defendant John G. Bennett, Jr., President of New Era Philanthropy. Bennett was sentenced to 144 months in prison for perpetrating the largest charity fraud in history, a six-year scheme in which he solicited over $350 million in contributions for a bogus “matching” program. We will affirm. I. FACTUAL BACKGROUND AND PROCEEDINGS In 1989, Bennett encountered financial difficulties in connection with several of his businesses. As a consequence, he devised a check-kiting scheme using his bank accounts at Philadelphia National Bank and Merrill Lynch, writing checks from one account to another on insufficient funds and creating false balances reflecting fictitious amounts. To cover the overdrafts, Bennett solicited participation in a new program called the New Concepts in Philanthropy Program, using the initial checks received from New Concepts donors to pay down the overdrafts at Merrill Lynch and the Philadelphia National Bank. Under the New Concepts Program, individual donors gave money for charitable purposes to be held for several months by another Bennett organization, the Foundation for New Era Philanthropy. Bennett told potential investors that a wealthy donor, who wished to remain anonymous, would match their contributions at the end of the holding period. The doubled funds would then be transferred to a charity of the donor’s choice. In reality, there was no anonymous donor. Bennett used the donations of subsequent investors to “double” the deposits of the original investors, and he routinely invaded the held funds to benefit his for-profit businesses. The “ponzi” scheme grew into a pyramid scheme as the base of investors grew. Bennett expanded the New Concepts Program to allow nonprofit organizations to participate. Eventually, the Foundation for New Era Philanthropy received both tax-exempt status and a license to act as a charity in Pennsylvania. Bennett established and maintained these licenses through a series of falsehoods. For example, he omitted any mention of the matching program from all documents filed with the Internal Revenue Service or state authorities. In these submissions, Bennett also listed a nonexistent board of directors consisting of prominent individuals and he significantly underestimated New Era’s liabilities. During a subsequent I.R.S. audit, Bennett provided fabricated board-of-directors minutes, again failed to disclose the existence of the New Concepts Program, and misrepresented the true condition of New Era’s assets. As a result, New Era received a favorable audit letter from the I.R.S. In response to due diligence inquiries by potential donors, Bennett made additional false representations: a) The anonymous donors had signed trust agreement s pledging to match contributions made through New Era. b) The anonymous donors matched the funds deposited with New Era. c) Bennett received no compensation from New Era. d) New Era had a board of directors made up of prominent individuals. e) Funds deposited with New Era were held in escrow or “quasi-escrow” accounts. f) The expense of running New Era was paid from the interest earned by deposited funds during the holding period. Having satisfied investors and auditors that New Era was a legitimate charity, Bennett then systematically transferred New Era funds to his struggling for-profit businesses through loans and stock purchases. By 1994, Bennett could no longer cover the “doubled” funds solely through new donations. Consequently, he obtained a loan from a brokerage account at Prudential Securities to cover the shortfall. The loan was secured by United States treasury bills that Bennett had purchased with funds donated to New Era by charitable organizations. Bennett informed several of these organizations their money was invested in United States treasury bills and they could call Prudential to confirm that a treasury bill had been purchased in the name of the organization. But instead of revealing the treasury bills were serving as collateral for a loan, Bennett told the organizations their money was being held in low-risk, interest-bearing accounts and escrow or “quasi-escrow” accounts at major financial institutions. The Prudential loan eventually totalled $50 million. In the final nine months before New Era’s collapse, Bennett drew increasingly larger margin loans on his account at Prudential. In May 1995 Prudential called the loan. Unable to meet his obligations, Bennett agreed to place New Era into bankruptcy and then revealed the anonymous donors had never existed. In September 1996, Bennett was charged in an eighty-two-count indictment for offenses committed in connection with the Merrill Lynch and Philadelphia National Bank accounts. The indictment charged Bennett with one count of bank fraud (18 U.S.C. § 1344), sixteen counts of mail fraud (18 U.S.C. § 1341), eighteen counts of wire fraud (18 U.S.C. § 1343), one count of making false statements to the government (18 U.S.C. § 1001), three counts of filing false tax returns (26 U.S.C. § 7206), one count of impeding the administration of revenue laws (26 U.S.C. § 7212), fifteen counts of money laundering (18 U.S.C. § 1957), and twenty-seven counts of money laundering to promote unlawful activity (18 U.S.C. § 1956(a)(1)(A)®). Bennett originally pleaded not guilty and prepared for trial. Before trial, the District Court ruled to exclude certain questions that Bennett proposed to ask of his expert witness regarding Bennett’s mental capacity. In March 1997, Bennett decided to enter a conditional plea of nolo contendere to all the charges. In an accompanying press release, Bennett emphasized he did not admit guilt or “adopt as true the government’s version of the facts, insofar as those facts relate in any way to the issue of his intent to commit the crimes alleged in the indictment.” Following Bennett’s entry of the nolo contendere plea, the Probation Office compiled its Presen-tence Investigation Report in anticipation of the sentencing hearing. A. The Presentence Investigation Report The presentence report grouped the charges as follows: (1) bank fraud; (2) mail fraud; (3) wire fraud; (4) false statements; (5) false tax returns; and (6) impeding the administration of revenue laws. It then calculated Bennett’s adjusted offense level beginning with a base offense level of six under U.S.S.G. § 2F1.1. The presentence report recommended against a reduction in the base offense level for acceptance of responsibility under U.S.S.G. § 3E1.1: The defendant has entered a plea of nolo contendere in this case. However, he continues to deny any factual guilt and criminal intent for his actions. In his press release dated March 26, 1997, announcing his plea of nolo contendere, the defendant stated that he does not admit or adopt as true, the government’s version of the facts, insofar as those facts relate in any way to the issue of his intent to commit the crimes alleged in the Indictment. The defendant further stated in his press release that he believes that his choice to cooperate with the bankruptcy trustee by surrendering substantially all of his assets to the trustee, which he claims had no relation to New Era, and to cooperate with the Attorney General of the Commonwealth of Pennsylvania and the United States Securities and Exchange Commission regarding civil enforcement activities brought by those entities regarding the collapse of New Era, indicates that he has accepted responsibility. It appears that his choice to cooperate with the bankruptcy trustee and the other parties bringing civil action against him benefits him in the same way as his plea of nolo contendere in the criminal matter. In other words, the defendant arrives at an outcome which may have been inevitable anyway, but with much less negative publicity and stress to himself and his family. His cooperation is not an indication that he admits wrongdoing. In fact, he stated as much in his press release. Furthermore, the defendant’s for profit companies received approximately $7 million as a result of his fraudulent activities, which ultimately resulted in benefit to him. The presentence report also called for an eighteen-level increase for the loss caused by Bennett’s conduct, suggesting “[t]he loss in this case at the time the offense was discovered was approximately $135,000,000; although the total amount of funds taken from the victims was approximately $354 million. Pursuant to § 2Fl.l(b)(l)(S), because the loss in this case was over $80 million, 18 levels are added.” It also recommended that two levels be added because the offense involved “more than minimal planning” under § 2F1.1(2)(A) and (B): “[T]he defendant committed repeated fraudulent acts over a period of time, and ... this offense involved a scheme to defraud more than one victim.” The report suggested an additional two-level increase because the criminal conduct involved the misrepresentation that Bennett was acting on behalf of a charitable, educational, religious, or political organization: The misrepresentation took place in three ways. First, the defendant was able to secure a favorable rating from the Internal Revenue Service for the Foundation for New Era Philanthropy as a charitable organization, by submitting fraudulent documentation to the IRS, and by failing to disclose information regarding the New Concepts program to the IRS. The defendant did this knowing that the New Concepts program was in fact, a fraudulent scheme. The second aspect of the misrepresentation was the New Concept program itself, wherein the defendant told the victims of non-existent anonymous donors, in an effort to solicit contributions from them. In addition, the defendant used the favorable rating that he fraudulently received from the IRS to solicit funds from the victims. The third aspect to the misrepresentation is that the defendant used the charitable image of New Era to divert several million dollars to his for profit companies, which ultimately benefitted the defendant personally. Pursuant to § 2F1.1 (b)(3)(A.), two levels are added. Invoking § 2F1.1(b)(6)(B), the report also recommended a four-level increase because Bennett derived more than one million dollars in gross receipts from an offense affecting a financial institution. Specifically, the report noted Bennett “used a brokerage account at Prudential Securities to obtain sufficient funds to facilitate this offense. Overall, the loan from Prudential to New Era was approximately $50 million.” The report also recommended upward adjustments for Bennett’s “aggravating role” in the offense and for his abuse of a position of trust. First, it described Bennett’s role in the offense: [Bennett] was the organizer and leader of New Era, which was used in the commission of an extremely extensive fraud. Several employees carried out the defendant’s orders which served to facilitate this offense. Most of the employees were unaware of the defendant’s fraudulent activities; however, to date the defendant’s accountant has entered a plea of guilty to charges related to this offense. In addition, the defendant utilized the services of many other innocent individuals to promote the goals of New Era. Pursuant to § 3Bl.l(a), the offense level is increased by four levels. Next, the report discussed the position of trust Bennett occupied: “[Bennett] was entrusted as a fiduciary by the victim organizations. The defendant abused the trust placed in him by these organizations by diverting money to his for profit companies, which had been entrusted to him for charitable purposes.” These enhancements created a subtotal adjusted base offense level of thirty-eight for the first group of closely related counts. The second group of closely related counts consisted of money laundering and money laundering to promote unlawful activity. Under U.S.S.G. § 2Sl.l(a)(l), Bennett had a base offense level of twenty-three. The presen-tence report called for a three-level enhancement based on the amount of money laundered: “approximately $528,016. Pursuant to § 2S1.1(b)(2)(D), since the value of the funds was more than $350,000, but less than $600,001, the base offense level is increased by three levels.” The District Court explicitly adopted the factual findings and guideline application of the presentence report in its judgment and commitment order. B. The Sentencing Hearing In September 1997 the District Court held a four-day sentencing hearing. At the close of testimony, the court commented on the burden of proof: “[T]he defense’s position is that the government must meet its burden of proof by clear and convincing evidence. While I believe the correct standard is ■ a preponderance of the evidence, the evidence presented is sufficient to meet the higher standard.” The court then made several findings with respect to enhancements to the base offense level: [F]or the amount of the loss 18 levels are added because the loss was more than $80 million, in this case at least $100 million. Next, two levels are added for more than minimal planning, which is not in dispute. Next, two levels are added because the offense involved misrepresentation that the defendant was acting on behalf of a charity. Next, two levels are added because the offense affected a financial institution and the defendant derived more than $1 million in gross receipts from the offense. Next, four levels are added because of the defendant’s role in the offense as an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. And next, two levels are added because defendant abused a position of trust in a manner that significantly facilitated the commission or concealment of the offense. Correction as to the specific offense characteristic involving a financial institution and that defendant derived more than a $1 million in gross receipts from the offense, it should be four levels are added, not two as I mis-spoke. After I ruled that certain testimony from his mental health experts would be inadmissible at trial, Mr. Bennett entered a conditional nolo contendere plea, conditional in that he reserved the right to appeal my ruling. The request by the defense for a decrease based on acceptance of responsibility must be denied. To obtain this decrease the guidelines require that the defendant clearly demonstrates acceptance of responsibility for the offense, which did not occur in this case. At the close of sentencing, the District Court made additional remarks addressing the “aggravating role” and “abuse of a position of trust” enhancements: Moreover, the argument that others, such as Prudential, Andrew Cunningham and the lawyers helped walk Mr. Bennett down the garden path must also be rejected. Whether or not anyone whose services he utilized assisted him in his request in carrying out these offenses does not diminish his role in it. It can well be argued to the contrary. Unfortunately, a person’s conduct often differs from what one says or professes to believe in. In addition to misapplying funds that were entrusted to him, he also obtained very large amounts of money for his personal benefit. He had total control over both New Era and his for profit corporation and thereby channeled money that came into New Era to pay himself, while maintaining that he was serving New Era without charge. Bennett’s offense level and criminal history category targeted a guideline range of 235-293 months imprisonment. But the District Court determined a downward departure was appropriate: [T]he law requires that the sentence imposed reflect the seriousness of the offense. Given the enormity and gravity of this case, a guidelines range sentence on that basis could be justified. The amount of harm and the number of persons harmed and the still ongoing repercussions experienced by the charities and nonprofit organizations and those who benefit from their activities are incalculable. It may well be that any lesser sentence than within the guidelines range will be criticized as under-representing or depreciating the inordinate size and gravity of the damage done in this case. However, I have determined to make a downward departure from the guidelines range by reason of the presence of three factors or grounds. Each of these departure factors is found to be sufficient by itself to support the extent of the departure. But whether taken singularly or in any combination, they do not in my view justify any further departure because of the seriousness of the offense. Moreover, certain departure factors requested by the defense must be denied. The sentencing guidelines contain policy statements that discourage the consideration of various factors in determining whether a sentence should be outside the guidelines range. The reason is that these factors, at least to the extent that they are generally present in a case, have already been included in the sentencing guideline categories. The Supreme Court has said that these so-called discouraged factors may be a basis for departure only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Discouraged factors include age, family responsibilities and community ties and employment records. And none of these factors in this case is sufficient individually or in combination to be the basis for a departure. One discouraged factor that is present to an exceptional degree is called military, civic, charitable or public service employment related contributions, record of prior good works. It is evident that for many years leading up to 1989 Mr. Bennett made a large number of civic, charitable and public service contributions and performed good works in the areas of substance abuse, children and youth, juvenile justice. These went far beyond the community contributions generally made even by very civic minding and good-hearted people. They are the first basis for the downward departure. No credit is given for contributions and activities after 1989 because of their interrelationship with the offense conduct. The next separate basis for departure is extraordinary cooperation and restitution. Through the exceptional work of the trustee, the Bankruptcy Court and Judge [Dal-zell] of this Court, the amount of the New Era loss was reduced from over $100 million to about $20 million. Mr. Bennett’s cooperation and his turning over the bulk of his personal and company held assets greatly facilitated this process and occurred to an unusual degree. Our Court of Appeals has recognized that such efforts may distinguish a case and if so, may warrant departure. The third basis for departure involved Bennett’s mental capacity, which the District Court considered “problematical”: On the one hand, a discouraged departure factor is called mental and emotional conditions. On the other hand, an encouraged factor is called diminished capacity. * * * If a factor is an encouraged factor, it is a basis for departure unless the applicable guidelines already take it into account, which is not this case. The subject of Mr. Bennett’s clinical condition and applicable diagnoses has been hotly debated by a number of prestigious mental health experts. While it appears unlikely that he had a delusional disorder or more than, at worst, a mild organic brain dysfunction, there is evidence of severe personality disorders, including narcissism, hypomania, obsessive-compulsive personality, at least some of which is agreed to or not contested by the government’s experts. A complicating factor is that while personality disorders are listed in the Authoritative Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association, many clinicians do not believe a personality disorder is any more than a description of one’s personality. They therefore distinguish it from a mental, disease or disability and reject it as a basis for legal judgment. Court cases, however, have not seen fit to make that distinction, particularly recently. In the present case, Mr, Bennett devised and developed and completely managed what became an extremely large financial enterprise. The evidence is that on one level he believed his work was consistent with his religious beliefs and God ordained mission. It appears that he not only was convinced himself, which usually is basic to convincing others, but he also convinced many responsible established and highly successful executives and religious, educational and other community institutions, as well as many social and political leaders. Here, whether this basis for departure is grounded in an extraordinary mental and emotional condition under the discouraged factors or in a diminished capacity under the encouraged factors it appears from all the evidence that Mr. Bennett’s cognition of volition or both were subject to a very unusual distortion and significantly reduced mental capacity. Therefore, the District Court departed downward 91 months and imposed a sentence of 144 months imprisonment. II. DISCUSSION A. Pretrial Rulings Concerning Expert Testimony Before deciding to plead nolo contendere, Bennett had filed notice of his intent to rely on the defense of insanity and to offer both lay and expert testimony on his mental condition. After Bennett requested a hearing to determine the admissibility of expert testimony on his mental disorders, he and the Government filed a joint submission containing a “Summary of Questions and Anticipated Responses.” The District Court held the requested hearing and thereafter issued an order disallowing certain submitted questions. Ten “General Questions” were submitted, two of which were: Q: In your opinion, to a reasonable degree of medical certainty, do you believe that the mental orders you state Mr. Bennett suffers from precluded him from forming the intent to defraud? Q: In your opinion, to a reasonable degree of medical certainty, do you believe the mental disorders you state Mr. Bennett suffers from make it highly unlikely that he could form the intent to defraud? The District Court determined: 1. As to all General Questions excepting the last two, objections based on F.R.E. 702 and 403 are overruled. Rulings are deferred as to relevance, F.R.E. 401. To have probative value, answers must provide sufficient fact basis for a finding of lack of actual mens rea. Objection to the use of the word “facts” in the third question is sustained. 2. As to the last two General Questions (opinions as to forming intent to defraud), objections are sustained. F.R.E. 704(b). United States v. Bennett, 29 F.Supp.2d 236 (E.D.Pa.1997) (Pretrial Rulings). Three questions relating to bank fraud were submitted, the last of which stated: Q: In your opinion, to a reasonable degree of medical certainty, did any of the mental disorders that Mr. Bennett suffers from make it unlikely that he would have engaged in conduct designed to defraud a bank? Citing Federal Rule of Evidence 704(b), the District Court sustained the Government’s objection to this question, but overruled the objection to the first two bank fraud questions: “[T]he words ‘affected’ and ‘affect,’ in the context used, are vague and unclear, and to the extent that they request an opinion or inference as to ‘whether defendant possessed a mental state or condition constituting an element of bank fraud,’ objections are sustained. Otherwise, rulings as to relevance are deferred.” Id. at 236-37. The District Court sustained the Government’s objections to four questions on mail and wire fraud, again invoking Rule 704(b). The questions were: Q: In your opinion, to a reasonable degree of medical certainty, did Mr. Bennett’s mental disorders preclude him from forming the specific intent to defraud individuals through the operation of the New Concepts program? Q: If so, how? Q: In your opinion, to a reasonable degree of medical certainty, did Mr. Bennett’s mental disorders make it unlikely that he could defraud the individuals and entities involved with New Concepts? Q: If so, how? The District Court sustained all objections to the questions on false statements because the “questions do not relate to actual mens rea. They also appear to ask for impermissible opinion or inference in violation of Fed. R.Evid. 704(b).” Id. at 237. On the same basis, the District Court sustained objections to the questions about false tax returns, impeding the administration of the I.R.S., and money laundering. In conjunction with its rulings on the proposed questions, the District Court issued a Memorandum explaining its decision: The government’s experts disagreed with most of the conclusions reached by defendant’s experts____[The Government’s disputes] are with a narrower approach to Rule 702 and as to Rule 403 admissibility. However, there is little evidence that defendant’s experts performed their evaluations improperly or irregularly — or unscientifically. They may have been remiss in not looking into the economic operation of defendant’s organization and ascertaining the enormity of its losses. Those matters could reflect on their assessment of defendant’s condition as well as its relationship to his mens rea, both in clinical and legal terms.... [I]t appears that the government’s initial objections raise issues as to weight and not admissibility. The relevance, scope, and form of the testimony of defendant’s experts must also be decided. [United States v. Pohlot, 827 F.2d 889 (3d Cir.1987) ] teaches that evidence bearing on mens rea is admissible because it relates to an essential element of guilt. The mental state at issue is “actual” mens rea — which is not a matter of the individual’s mental capacity but of the state of mind at the particular time in question. What is involved is a rule of evidence, not a defense. Relevance, therefore, depends on the legal ingredients, or definition, of the pertinent mens rea. Where mens rea includes specific intent or knowledge, it goes beyond mere conscious awareness of conduct. The question is whether the expert evidence, if believed, would support a legally acceptable theory of lack of mens rea. The mental health expert may testify to the expert’s examination and diagnosis and to other clinical information, such as the patient’s history and the patient’s version of what occurred, in order to give the jury information from which to determine whether actual mens rea was present. The mental health expert may not testify to the expert’s opinion or inference on that issue, directly or by hypothetical question. A further limitation is that under F.R.E. 702 the expert’s testimony must assist the fact-finder. Here, the expert testimony relating to defendant’s alleged delusion or fantasy regarding “anonymous donors” may be relevant to the mens rea for mail fraud---- However, before such evidence may surmount the F.R.E. relevance and F.R.E. 702 hurdles, it must be shown that, given the actual facts and circumstances, it supports a legally acceptable theory of lack of mens rea. The expert must be prepared to testify to information that supplies at least a partial basis for, or leads to, the logical finding that the mens rea — for example, in the case of mail fraud, the specific intent to defraud — was or may not have been present. Merely eonclusory or speculative testimony is not enough. The same probative value principle pertains to the expert testimony regarding defendant’s belief that he was acting as God’s agent. His experts drew the conclusion that since he considered himself to be carrying out God’s will, he could not have possessed the requisite mens rea for commission of the crimes charged. Regardless of their validity, the expert’s opinions or inferences as to defendant’s mental state — in the legal sense — are barred by F.R.E. 704(b). However, the question remains as to the probative value of any expert testimony that defendant believed his actions were at God’s behest. Motive is not an essential element of guilt and need not be proven by the government. The morality of one’s conduct may be relevant to a legal insanity defense. But, by itself, moral rectitude, regardless of the supremacy of the authority for such approbation, will not negate mens rea. Here, too, it is necessary for defendant to show how God’s influence or direction fits into a legally acceptable theory that he lacked the state of mind at issue. * * * As to each of the crimes charged in the present case, while the mens rea requirements vary, all of them involve some type of intentionally false representation. As a matter of law, no amount of honest belief that an enterprise will succeed — or is worthwhile — can justify false, baseless, or reckless assertions or promises. * * * In order to have probative value as to mens rea, defendant’s expert testimony must relate to the particular misrepresentations attributed to him in the indictment. If his clinical condition and symptomology can be logically connected to his subjective belief that his assertions were not false, baseless, or reckless visa-vis the truth, such evidence is admissible to show lack of mens rea. Otherwise, it is not — despite a strongly held religious conviction, whether or not arising from mental disorder, that his conduct was morally upright and would be societally beneficial. * * * For a mental health expert’s testimony to have probative value as to statutory willfulness, it must have some bearing, in factual terms, on the issue of whether there was a voluntary, intentional violation of a known legal duty. The generalized conclusion, without more, that defendant believed he was doing God’s work is not sufficient to negate the mens rea of statutory willfulness. What it tends to prove — the morality or goodness of defendant’s conduct — is not necessarily inconsistent with a guilty mens rea. It does not by itself tend to show that the alleged violation, here the filing of false tax returns, was not voluntary or intentional or was not a violation of a known legal duty. Inasmuch as the rulings on relevance objections have been deferred, defendant will be given a further opportunity, within the guidelines set forth in this memorandum, to develop the mental health theory of his case. It is not necessary for the mental health expert’s testimony to provide the fact basis for defendant’s theory or theories in their entirety or even large part. But the testimony must show some Rule 401 or Rule 702 connection to the lack of actual mens rea for the particular crime charged in the indictment. United States v. Bennett, 29 F.Supp.2d 236, 238-41 (E.D.Pa.1997) (Memorandum) (citations omitted). B. Propriety of Pretrial Rulings Concerning Expert Testimony Bennett argues the District Court erred in ruling his proffered psychiatric evidence was inadmissible under Federal Rule of Evidence 704(b), which forbids experts from stating an “opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.” Fed. R.Evid. 704(b). Bennett maintains the proffered questions did not call for such an opinion or inference, but sought admissible evidence of whether Bennett: (a) harbored the specific intent to defraud; (b) knew and believed that the tax returns and other information given to the IRS were false; (c) knew the money he handled represented the proceeds of criminal activity (as is required under the money laundering statute); or (d) harbored the specific intent to promote illegal activity. We review the District Court’s rulings on the admissibility of expert testimony for abuse of discretion. See United States v. McGlory, 968 F.2d 309, 345 (3d Cir.1992); Habecker v. Copperloy Corp., 893 F.2d 49, 51 (3d Cir.1990). We note the trial judge has broad discretion to admit or exclude expert testimony, based upon whether it is helpful to the trial of fact. See Fed.R.Evid. 702; 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 702.02[2] (Joseph M. McLaughlin ed., 2d ed. 1997) (“The trial judge has broad discretion to admit or exclude expert testimony under the test of ‘helpfulness’.... In determining the admissibility of expert evidence, the trial judge must also consider whether the general relevancy requirements of Rules 401-403 are met.”). Rule 704 provides: Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Fed.R.Evid. 704. The accompanying advisory committee’s note states: The basic approach to opinions, lay and expert, in these rules is to admit them when helpful to the trier of fact. In order to render this approach fully effective and to allay any doubt on the subject, the so-called “ultimate issue” rule is specifically abolished by the instant rule. The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Fed.R.Evid. 704 advisory committee’s note. Rule 704 prohibits “testimony from which it necessarily follows, if the testimony is credited, that the defendant did or did not possess the requisite mens rea.” United States v. Morales, 108 F.3d 1031, 1037 (9th Cir.1997). Therefore, expert testimony is admissible if it merely “supports] an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not neces-. sarily follow from the testimony.” Id. at 1038 (allowing expert testimony that a defendant charged with willfully making false entries in a union ledger had a weak grasp of bookkeeping principles, because to hold otherwise “would exclude an expert’s opinion on any matter from which the factfinder might infer a defendant’s mental state”). Nonetheless, “[cjourts have interpreted Rule 704(b) to prohibit both the prosecution and the defense from inquiring of expert psychiatrists whether the defendant, at the time of the crime, was able to appreciate the wrongfulness or the nature and quality of his acts.” United States v. Brown, 32 F.3d 236, 238 (7th Cir.1994); see also United States v. West, 962 F.2d 1243, 1246 (7th Cir.1992) (holding that Rule 704 forbids psychiatric testimony as to whether defendant charged with bank robbery understood the wrongfulness of his act at the time of the offense). We believe the District Court properly excluded the questions asking whether Bennett’s mental disorders (1) “precluded him from forming the intent to defraud”; (2) made it “highly unlikely that he could form the intent to defraud”; (3) made it “unlikely that he would have engaged in conduct designed to defraud”; (4) precluded him “from forming the specific intent to defraud individuals”; (5) made it “unlikely that he could defraud the individuals and entities”; (6) “affect[ed] his ability to knowingly and willfully submit false statements to the I.R.S.”; and (7) made “it unlikely that he would knowingly and willfully submit false statements to the I.R.S.” These questions go beyond merely assisting the jury, explaining the nature of Bennett’s mental disease, or describing the typical effect of Bennett’s disorders on his mental state. Instead, they require the expert witness to state expressly whether Bennett possessed the requisite intent to commit the crimes charged in the indictment. Accordingly, we find no abuse of discretion in the District Court’s refusal to admit the questions. In his argument to the contrary, Bennett relies principally on United States v. Hayden, 64 F.3d 126 (3d Cir.1995), United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.1989), and United States v. Pohlot, 827 F.2d 889 (3d Cir.1987), all of which allowed the introduction of expert testimony on the defendant’s mental condition at the time of the offense. In all three cases, however, the proffered testimony was limited to a factual description of the defendant’s mental capacity, without any opinion or inference as to whether the defendant had the mental state required for commission of the offense. In Hayden, the defendant had been convicted of receiving a firearm while under a felony information, in violation of a statute punishing those who “willfully violate! ]” its provisions. 18 U.S.C. § 924(a)(1)(D) (1988 & Supp. V 1993). While completing forms for the purchase of the firearm, the defendant had responded “no” to a question asking whether he was “under indictment or information.” Id. at 127. In fact, the defendant was under a criminal information for receiving stolen property, and he acknowledged having received a copy of the information in the mail. At trial, the District Court prevented the defendant’s expert witness from testifying the defendant had low intelligence and poor reading skills. In reversing, we held such evidence was relevant to determine whether the defendant’s failure to provide truthful information on the form was “willful,” as required by the statute. See id. at 134 (holding that “the government must prove Hayden knew or deliberately disregarded the fact that he was under an information and that his purchase of a firearm was therefore unlawful” and “the excluded evidence had a direct bearing on willfulness”). Accordingly, we remanded for a new trial but specifically instructed that “[a]ny use of expert testimony on remand must, of course, comply with Federal Rule of Evidence 704(b).” Id. at 134 n. 13. In Theodoropoulos, we assessed the testimony of an FBI cryptanalyst who translated code words used in intercepted conversations and testified about his inferences of the roles played by the individual defendants in a drug trial. We held this testimony did not “fall within the narrow range of opinions still prohibited under Rule 704 .... [because it consisted of] factual conclusions rather than opinions.” Theodoropoulos, 866 F.2d at 591 (citing, inter alia, United States v. Brown, 776 F.2d 397, 400-02 (2d Cir.1985) (holding expert testimony that defendant was a “steerer” in a drug organization was admissible)). Finally, in Pohlot we considered “what, if any, evidence of a criminal defendant’s mental abnormality is admissible to prove the defendant’s lack of specific intent to commit an offense, following the passage of the Insanity Defense Reform Act of 1984.” Pohlot, 827 F.2d at 890. The defendant had been charged with using interstate commerce facilities in a plot to murder his wife. At trial, his psychiatric expert testified at length about the defendant’s emotional development, his history of abuse by his wife, and his supposed feeling that the murder plot was an elaborate fantasy. See id. at 892. But the expert did not express an opinion whether the defendant had the requisite intent to be guilty of the crime charged. We concluded the Insanity Defense Reform Act barred admission of evidence of mental abnormality to support a diminished capacity or diminished responsibility defense, but did not bar admission of such evidence to negate an element of mens rea: [Although Congress intended § 17(a) to prohibit the defenses of diminished responsibility and diminished capacity, Congress distinguished those defenses from the use of evidence of mental abnormality to negate specific intent or any other mens rea, which are elements of the offense. While the contours of the doctrines of diminished responsibility and diminished capacity are unclear, the defenses that Congress intended to preclude usually permit exoneration or mitigation of an offense because of a defendant’s supposed psychiatric compulsion or inability or failure to engage in normal reflection; however, these matters do not strictly negate mens rea. Despite our disagreement with the government’s broad contention [that the Act barred all evidence of mental abnormality from the jury’s consideration of mens rea], we agree that the Congressional prohibition of diminished responsibility defenses requires courts to carefully scrutinize psychiatric defense theories bearing on mens rea. Psychiatrists are capable of supplying elastic descriptions of mental states that appear to but do not truly negate the legal requirements of mens rea. Presenting defense theories or psychiatric testimony to juries that do not truly negate mens rea may cause confusion about what the law requires. Id. at 890. Therefore, “[district courts should admit evidence of mental abnormality on the issue of mens rea only if when, if believed, it would support a legally acceptable theory of lack of mens rea.” Id. at 905-06. We upheld Pohlot’s conviction because even if the psychiatric testimony were credited, it did not negate a finding of specific intent. See id. at 906-07. Unlike the defendants in Hayden, Theodo-ropoulos, and Pohlot, Bennett sought to introduce expert testimony expressly stating that he lacked the mental capacity to commit the charged crimes. All of the excluded questions asked the expert to state, in con-elusory terms, how Bennett’s mental disorders affected his criminal culpability. That decision is exclusively within the province of the jury. We find no abuse of discretion in the District Court’s decision to exclude the proposed testimony. C. Sentencing Issues Bennett maintains the District Court erred during sentencing in-failing to make specific findings of fact and resolve disputed issues as required by Federal Rule of Criminal Procedure 32(c)(1). That Rule provides: (1) Sentencing Hearing. At the sentencing hearing, the court must afford counsel for the defendant and for the Government an opportunity to comment on the probation officer’s determinations and on other matters relating to the appropriate sentence, and must rule on any unresolved objections to the presentence report. The court may, in its discretion, permit the parties to introduce testimony or other evidence of the objections. For each matter controverted, the court must make either a finding on the allegation or determi- Fed.R.Crim.P. 32(c)(1). The accompanying advisory committee note provides: Subdivision (c)(1) is not intended to require that resolution of objections and imposition of sentence occur at the same time or during the same hearing. It requires only that the court rule on any objections before sentence is imposed.... The rule speaks in terms of the court’s discretion, but the Sentencing Guidelines specifically provide that the court must provide the parties with a reasonable opportunity to offer information concerning a sentencing factor reasonably in dispute. Subdivision (c)(1) (formerly subdivision (c)(3)(D)) indicates that the court need not resolve controverted matters which will “not be taken into account in, or will not affect, sentencing.” [T]he words “will not affect” did not exist in the former provision but were added in the revision in recognition that there might be situations, due to overlaps in the sentencing ranges, where a controverted matter would not alter the sentence eve if the sentencing range were changed. Fed.R.Crim.P. 32 advisory committee’s note. 1. Consideration of the Sentencing Memorandum Initially, we must decide whether to consider the Sentencing Memorandum filed by the District Court after Bennett had appealed his sentence. As noted, the District Court made oral findings of fact at the sentencing hearing and expressly adopted the findings of the Presentence Investigation Report in its judgment order. The Sentencing Memorandum contains a more comprehensive explanation of the District Court’s factual findings and conclusions of law with respect to the issues contested on this appeal. See United States of America v. Bennett, 9 F.Supp.2d 513 (E.D.Pa.1998) (Sentencing Memorandum). Although we do not condone late filing, we will nonetheless consider the Sentencing Memorandum. Bennett argues consideration of the Sentencing Memorandum would violate our Local Rules of Appellate Procedure and could unfairly prejudice his case. Local Rule of Appellate Procedure 3.1 provides, in part: Notice To Trial Judge; Opinion In Support Of Order At the time of the filing of a notice of appeal, the appellant shall mail a copy thereof by ordinary mail to the trial judge. Within 15 days thereafter, the trial judge may file and mail to the parties a written opinion or a written amplification of a prior written or oral recorded ruling or opinion. 3d Cir. R. 3.1. Notably, the accompanying comments suggest a flexible approach is consistent with the spirit of the rule: “A District Court may properly prepare an opinion or memorandum explaining a decision after an appeal is taken. The rule is not intended to inhibit or discourage District Courts from preparing opinions as they presently do. To the contrary, the rule was designed to provide more flexibility.” 3d Cir. R. 3.1 committee comments. The District Court filed its Sentencing Memorandum long after the 15-day window of Local Rule 3.1 had expired. Bennett does not ask that we strictly enforce the rule’s 15-day limit, but proposes instead a bright-line rule forbidding consideration of any District Court opinion filed less than 30 days before the due date for the appellant’s brief. He advocates 30 days because “that is the shortest period of time under this Court’s practice that an appellant is deemed to need to prepare the opening brief.” (Appellant’s Post-Argument Letter Br. at 4.) Thus, Bennett argues a 30-day rule would fulfill Local Rule 3.1’s purpose of ensuring that appellants are not prejudiced by post-appeal clarifications of rulings in response to the appellant’s formulation of issues and the identity of the panel. Although Bennett’s argument carries some appeal, we decline to adopt a bright-line rule. Instead we will look to the nature of the supplemental memorandum and whether its consideration would prejudice the defendant. In this case, we believe the Sentencing Memorandum is a helpful amplification of the District Court’s sentencing decisions and its consideration will not prejudice Bennett. Bennett concedes the District Court did not alter or clarify its rulings to address the arguments raised in his appellate brief or eater to the identity of the panel. Nor was Bennett prejudiced by a lack of opportunity to address the content of the Sentencing Memorandum, since we allowed both parties to submit supplemental briefs on whether we should accept the Sentencing Memorandum and to respond to its content. Thus we fail to see how consideration of the Sentencing Memorandum could prejudice Bennett. Finally, we note that even in the absence of the Sentencing Memorandum, we believe the District Court’s explicit adoption of the factual findings in the presentence report, along with its own factual findings and legal conclusions at the sentencing hearing, were sufficient. Accordingly, we will consider the Sentencing Memorandum as an amplification of the District Court’s sentencing decisions. 2. The Sentencing Memorandum The Sentencing Memorandum focuses largely on the enhancements applied. On the calculation of the “amount of loss” for purposes of U.S.S.G. § 2Fl.l(b)(l)(S), the Sentencing Memorandum explains: The government’s evidence demonstrated that the offense conduct was commenced in 1988-89 with check-kites that permitted defendant to pay off old loans with monies received from new investors.... [T]he New Concepts program was begun as a check-kite/“Ponzi” scheme to cover cash shortages in defendant’s then companies, and the scheme grew, in the form of a pyramid, as the base of investors widened. There was no collateral or other safety net to prevent the ultimate — predictable—catastrophic loss. Moreover, the huge pre-sentence restitution to the victims resulted from the considerable efforts of many individuals other than defendant. The loss was calculated to be in excess of $100 million based on the undisputed evidence as to the amount owed investors when New Era collapsed. Given the alternatives, that figure best approximated the extent of loss attributable to the New Concepts matching program. Because the amount was greater than $80 million, the upper limit of the highest Guideline’s bracket for amount of loss, 18 levels, were added. Bennett, 9 F.Supp.2d at 519-20 (citations omitted). Next, the District Court explained its decision to enhance Bennett’s base offense level by two levels because of Bennett’s misrepresentation that he was acting on behalf of a charitable organization: In the opinion of New Era’s tax counsel it was “important and appropriate” that the New Concepts program be disclosed on New Era’s applications for tax-exempt status. Nevertheless, there was no reference to it on either New Era’s application for federal 501(c)(3) exemption or the application for Pennsylvania charitable organization. Nor were inter-connected relationships between defendant’s for-profit and not-for-profit entities disclosed. In October, 1994 an I.R.S. agent was sent to New Era to investigate the existence of a suspected Ponzi-like scheme. At that audit, defendant himself represented that there was no matching program. At sentencing, defendant admitted having concealed the matching program from the I.R.S. Defendant’s claim that he was unaware of New Era’s financial operations is incomprehensible and not credible. The staff consisted of a handful of individuals all of whom were responsible to defendant and supervised by him. When called as government witnesses, their testimony portrayed him to be a micro-manager of the programmatic and financial activities of New Era as well as of the other entities that were subject to his control., He was an active and forceful CEO who created and organized his companies in his own image. He put together the programs, laid out all policies and directed their implementation, and selected personnel. He retained and conferred with attorneys and accountants. He solicited and met with representatives of potential investors — and made or approved all major corporate decisions. At defendant’s direction, New Era misrepresented or withheld information essential to its tax exempt status. As related in unrebutted testimony, defendant falsely conveyed to his own staff and to corporate counsel, as well as the public, that there was a board of directors. However, there were no directors other than defendant, although from time to time he talked about appointing them. As one of his attorneys testified, an I.R.S. requirement for tax-exempt status is the existence of a genuine board of directors. Another conceded that although defendant submitted to the I.R.S. a list of board members, in actuality none of the documents concerning the board “matched up” — causing the attorney to be concerned. Ironically, in a lecture series conducted by him, defendant admonished charitable organizations about the importance of a board of directors and of proper record-keeping for I.R.S. purposes. Credible evidence was received at sentencing that to satisfy the 1994 I.R.S. audit, defendant had dictated and submitted fictitious minutes of board meetings for 1992 and 1993. Defendant’s misrepresentations allowed New Era to present itself as a legitimate, tax-exempt foundation and facilitated the success of its illegal operation. Id. 9 F.Supp.2d at 520-21 (citations omitted). The Sentencing Memorandum also describes how Bennett “affected a financial institution” and derived more than one million dollars in gross receipts, resulting in an enhancement under U.S.S.G. § 2Fl.l(b)(6)(B): The offense “affected a financial institution” in that defendant maintained personal and New Era accounts at several financial institutions, including Founder’s Bank, the National Bank of the Main Line, and Prudential Securities. Defendant’s “gross receipts” took two forms. One consisted of payments directly from New Era — money that came almost entirely from the New Concepts matching program. The other involved expenditures made for the benefit of defendant or his family. Evidence showed that during the operation of New Era, there were transfers in excess of $4 million to defendant’s personal accounts or to those of his for profit companies. In the words of a government auditor, $4,208,637 was transferred from New Era to “entities in which 100 percent interest is to John G. Bennett, Jr.” This total corresponded with the report of defendant’s accountant less $800,000 credit for pre-collapse returns of previously transferred assets. Accepting defendant’s figures, the amount still exceeds $3 million. As to the expenditures that benefitted defendant or his family, it was proven that more than $2 million went directly to defendant’s personal expenses and investments, including the purchase of a house, travel, loans, an expensive car, and transfers of money through for-profit company accounts. As computed by the government auditor, the total of salary paid defendant, together with payments to his family members, Main Line Travel Agency, Merrill Lynch Investments, a Lexus dealership, personal credit card accounts, and for baseball tickets came to $2,449,960. Id. 9 F.Supp.2d at 521 (citations omitted). The District Court also applied a four-level enhancement for Bennett’s role in the offense. The Sentencing Memorandum explains this decision, characterizing Bennett’s role as an organizer or leader of a criminal activity that was “otherwise extensive” within the meaning of U.S.S.G. § 3Bl.l(a). In this action, there appears to have been just one other “criminal participant,” an accountant. The application of the enhancement rests on the “otherwise extensive” prong. Andrew Cunningham, one of the outside accountants, pleaded guilty in this court to fraud in relation to his accounting work for New Era. In 1994, Cunningham became suspicious and asked defendant about several matters, including payments from New Era to defendant’s for-profit consulting firm (Bennett Group International); fabricated minutes of board meetings presented to the I.R.S.; and lack of documentation to support the matching program. Some time after these inquiries, Cunningham informed defendant that he himself was in financial difficulty and needed about $50,000. Defendant promptly agreed to give him that amount and said: “I guess this means there won’t be any more hard questions.” According to his testimony at defendant’s sentencing, Cunningham felt that he had been “bought.” From then on, when asked critical questions about New Era’s activities, he falsified his answers. Cunningham became a criminal participant working at defendant’s direction. However, defendant also used a number of ostensibly innocent individuals to facilitate the operation of the matching program, rendering the activity “otherwise extensive.” [Seven New Era employees worked under his direction] ... Each performed a job that related and contributed to the overall scheme. As an illustration — defendant’s assistant, acting at his behest, did not give the monthly “payment schedules” to New Era’s lawyers and accountants who had asked for them. She also withheld the list of New Era’s board members. Defendant utilized the services of several respected outside attorneys and accountants. Their work products, which gave defendant’s companies the imprimatur of legality and reliability, reflected the carefully delimited information supplied to them by defendant. Moreover, he specifically directed Prudential Securities employees who handled investor inquiries not to divulge the nonsegregated nature of these so-called “escrow” accounts. Since none of these individuals would appear to have acted with knowledge of New Era’s illegal activities, they do not bear “equal responsibility” with defendant for his conduct. Contrary to defendant’s view, the enhancement was not based on defendant’s position as president and sole director of New Era. Instead, the evidence supports the application of the enhancement because defendant led or directed one criminal participant and at least 13 innocent individuals to assist in the commission of the crimes for which he was indicted. Id. 9 F.Supp.2d at 522-23 (citations omitted). The District Court further explained its decision to enhance Bennett’s offense level for abusing “a position of trust” in a way that “significantly facilitated” the commission of a crime. U.S.S.G. § 3B1.3. The Sentencing Memorandum states: As regards the nonprofit organizations and individuals who invested or donated money to be “matched,” New Era and defendant occupied positions of trust as fiduciaries. Additionally, as its lone director, defendant had a fiduciary relationship with New Era. When defendant caused significant misrepresentations to be made in order to secure and maintain New Era’s “tax exempt” status, defendant violated his fiduciary duties both to the public and to New Era. Next, as the government proved, defendant used these positions of trust to enable the perpetration of crimes. While defendant may have been impelled by his intense hopes to “Save the World,” he not only was aware that monies were entrusted to New Era, but he also took fraudulent steps to develop and encourage that trust. Defendant’s letter to prospective individual investors of January 1995 enclosed an informational manual about New Concepts and referred investors and donors to New Era’s form 990 and state due-diligence registration. This is just one instance in which defendant knowingly disseminated material misrepresentations that were undeniably false. To say that investors were greedy and, therefore, took their chances is but a half, self-serving truth. As a Guidelines Commentary aptly observes: “Taking advantage of a victim’s self-interest does not mitigate the seriousness of fraudulent conduct.” Similarly, the argument that others, such as Prudential Securities, the accountant, Andrew Cunningham, and counsel helped lead defendant down the garden path, must also be flatly rejected. That reputable professionals, at his request, assisted him in carrying out these offenses hardly diminishes his role in them. If anything, the more cogent conclusion is to the contrary. As repletely shown by the evidence, defendant knowingly, purposefully, and repeatedly misrepresented the nature and characteristics of the matching program in order to market it and effectuate large scale participation. At its outset, he claimed that there was an “anonymous benefactor” whose giving made the program feasible. Later, as he admitted, New Era distributed to organizations across the United States and, eventually, in England, prospectus-type literature asserting that the “original” benefactor was “extremely pleased” with the progress of the program. Acting at defendant’s sole direction, the Foundation constantly borrowed against and invaded funds that investors had deposited to be held, doubled and returned— not encumbered or spent. Defendant assured potential investors that their money would be held for them