Full opinion text
BRISCOE, Circuit Judge. Defendants Glenn Gallant, Douglas Baetz, Jack Grace, and Thomas Alan Boyd have filed these direct appeals after being convicted of a variety of fraud-related crimes arising from and related to the operation of a credit card portfolio financed by BestBank, a Colorado bank insured by the Federal Deposit Insurance Corporation (“FDIC”). Defendants Gallant and Baetz were tried before a jury and convicted of conspiracy, bank fraud, false bank reports, wire fraud, and a continuing financial crimes enterprise (“CFCE”). They now appeal those convictions, arguing that the evidence was legally insufficient to support their convictions and that the district court erred in failing to give a requested jury instruction. Defendants Grace and Boyd were convicted of similar counts in a separate bench trial, but do not appeal their convictions. Due to the common legal and factual issues presented by these cases, the district court sentenced all four defendants using essentially the same procedures and enhancements. All four defendants appeal their sentences, arguing that the district court committed procedural error in calculating the applicable Guidelines range. The government has cross-appealed the sentences in all four cases, raising a number of challenges to the district court’s calculation of the Guidelines range, the procedures used by the district court in conducting sentencing, and the district court’s failure to order restitution. Although not all of the issues raised are common to all four defendants, we are addressing all appeals in a single opinion because there is significant overlap between both the facts and the legal issues. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §§ 3742(a)-(b). We reverse the convictions of Gallant and Baetz on Counts 55 and 56 and affirm their convictions on all other counts, reverse the sentences of all four defendants, and remand to the district court with direction to vacate their sentences and re-sentence. I. FACTUAL BACKGROUND In 1989, Edward Mattar purchased a state-chartered bank in Thornton, Colorado, which he renamed BestBank. Mattar reorganized the bank, changing it to a commercial state bank with deposits insured by the FDIC. Because Mattar had no banking experience, regulatory approval for his ownership of the bank was contingent upon his employment of experienced bankers to operate the bank. Accordingly, Mattar hired Thomas Alan Boyd to serve as President of BestBank and Jack Grace to serve as its Chief Financial Officer. Both Boyd and Grace had prior banking experience. Mattar served as Chief Executive Officer of BestBank, and as the sole shareholder, he appointed the Board of Directors. Along with Mattar, Boyd, and Grace, several other persons served on the Board of Directors. One of the key components of Best-Bank’s business plan was the issuance of VISA credit cards to sub-prime cardholders. Sub-prime cardholders do not qualify for credit cards from most lenders. Many have a bad credit history, or have no credit history at all, and there is a high risk that they will not pay off the debt they accumulate on their credit card accounts. Given the increased probability that sub-prime cardholders will not pay off their debt, assessing interest on the debt is not always as profitable as charging front-end fees to applicants before issuing credit. To market and operate its sub-prime credit card program, BestBank entered into a Marketing Agreement with Century Financial Services, Inc. (“Century”) on February 22, 1994. Century was owned and operated by Douglas Baetz and Glenn Gallant, who were prior associates of Boyd. Under the Marketing Agreement, BestBank established the underwriting criteria and provided the capital for the extension of credit to cardholders. In exchange for its investment, BestBank received six per cent interest above the cost of funds. BestBank also received a portion of the fees charged to the accounts. Century, in turn, performed most of the marketing and management of the credit card portfolio: soliciting credit card applications, issuing cards to applicants, and collecting fees and interest from cardholders. Century profited from the arrangement by collecting fees and other charges from cardholders. BestBank and Century relied upon a “processor,” First Data Resources (“FDR”), to perform certain tasks for the credit card portfolio. As the processor, FDR monitored accounts, updated account information, collected payments from cardholders, mailed plastic credit cards to cardholders, handled all monetary transactions and postings to accounts, and produced and sent account statements and other reports regarding cardholder payments. In October 1997, Century changed its processor to First Independent Computers, Inc. (“FICI”), which Baetz and Gallant owned and operated. These processors created daily and monthly reports, which were the primary source of the data that the prosecution and its experts relied upon at trial. In order to shield itself from potential losses, BestBank required Century to purchase from it any accounts that were over 120 days delinquent, including accounts that were uncollectible (or “charged off’). Later, in September 1996, BestBank and Century negotiated an addendum to the Marketing Agreement, requiring Century to purchase all accounts that were over sixty days delinquent. To finance Century’s purchase of delinquent or uncollectible accounts, BestBank required Century to keep a bad debt reserve on hand in an account at BestBank. This bad debt reserve originally totaled four per cent of the portfolio, and was later increased to five per cent of the portfolio. BestBank also kept some control over Century’s operating account, and Century occasionally needed BestBank’s approval to withdraw money from the operating account. In 1996, Century and BestBank further agreed that Century would have a “participation,” by which Century would purchase additional non-performing accounts in the credit card portfolio. Despite these protections, BestBank had to absorb any additional losses out of BestBank’s own bad debt reserve if delinquent or uncollectible accounts exceeded Century’s ability to pay. If these losses, in turn, exceeded Best-Bank’s ability to pay, then state and federal regulators would shut down the bank, and the FDIC would insure BestBank’s depositors for up to $100,000 each — which, ultimately, is what happened. The first joint BestBank/Century credit card venture under the Marketing Agreement began in 1994 with the issuance of secured credit cards. Under the secured credit card program, each applicant was required to open a non-interest-bearing account with BestBank with a minimum security deposit of $250. In exchange for this security deposit, the applicant received a credit card with a credit limit equal to the amount of the security deposit. The applicant was charged a $20 application fee and an annual fee of $129 (later reduced to $95), and the applicant was required to make minimum monthly payments of $20, with eighteen per cent interest charged on any outstanding balance. Initially, the secured program appeared successful. Century opened a large number of new credit card accounts, using telemarketing to contact potential cardholders. However, all was not well. Although some of the reported accounts were valid, Century, under the direction of Baetz and Gallant, opened a number of accounts without receipt of the mandatory minimum $250 security deposit. In many such cases, Century did not issue cards or account statements to the purported cardholders, thereby concealing the existence of the accounts from the purported cardholders themselves. Sometimes, Century reduced the credit limit on the accounts to zero, or charged the security deposit to the card. Century charged the $129 annual fee, as well as other fees and charges, to these accounts, causing BestBank to transfer funds for these amounts to Century’s operating account and to record the amounts as receivables on BestBank’s books. With the number of accounts steadily exceeding the number of cardholder payments, BestBank’s receivables continued to grow. As fraudulent accounts — as well as some valid accounts — became delinquent, Baetz and Gallant began disguising the delinquencies in order to avoid Century’s obligation to purchase those accounts from BestBank. Frequently, Century simply “re-aged” accounts, removing their delinquency status and making them appear current without any payments by the cardholders. This re-aging violated the Marketing Agreement and seriously increased BestBank’s exposure to risk by disguising a host of otherwise delinquent loans that had little chance of cardholder repayment. In other cases, Century charged the $129 annual fee to an account, while simultaneously crediting the same account for $129. Although these simultaneous debits and credits canceled each other out, their effect was the same as re-aging: they removed the delinquency status and made the accounts appear current. Jon Wiedmaier, a BestBank employee who oversaw the secured program, became concerned in early 1995 about delinquencies in the portfolio. He noticed that many delinquent accounts had been re-aged, or had been subjected to simultaneous debits and credits for the annual fee. Wiedmaier also noticed that many accounts had balances greater than 151 % of the credit limit. Many of these accounts had been charged annual fees, late fees, and interest, but they had never received a security deposit and their credit limit was zero. In many cases, cardholders were not receiving monthly statements or making payments, and re-aging had prevented the accounts from being reported delinquent. At one point, 18,000 accounts out of a total of 40,000 had been re-aged. This was a far cry from normal re-aging practices for a credit card portfolio. Typically, re-aging occurs in less than one per cent of accounts and only in situations where cardholders have made good-faith arrangements with the issuing bank to pay back an otherwise unaffordable credit card debt. Wiedmaier concluded that someone had been concealing delinquent accounts. He continued investigating the problem, and he raised his concerns with Boyd and Grace in a memorandum dated January 27, 1995. He explained that forty-five per cent of the portfolio balance consisted of charges to accounts with balances greater than 151% of the credit limit. On the vast majority of these accounts, the balances consisted entirely of annual fees, late fees, and interest, and none of these accounts had security deposits. In addition, forty-two per cent of the portfolio was in the first month of delinquency, a much higher percentage than normal. In May 1995, Boyd and Grace communicated with Century about the problems with the portfolio. Boyd, writing to Baetz, directed Century to stop opening accounts without a completed application and security deposit, and to charge off all accounts over 120 days delinquent. In another letter, Boyd reminded Baetz that the Marketing Agreement prohibited Century from re-aging accounts without BestBank’s permission. Boyd informed Baetz that unless the situation reversed itself, Best-Bank’s bad debt reserve might not be adequate to cover losses. Despite Boyd’s correspondence, re-aging continued unabated. In a memorandum to Grace dated June 8, 1995 — and copied to Boyd and Mattar — Wiedmaier attempted to quantify the problem. He explained that 4,900 accounts, with balances totaling $700,000, had $150 credit limits but no security deposit, and had balances consisting solely of annual fees, late fees, and interest. An additional 9,900 accounts, with balances totaling $1.3 million, had credit limits of zero, no security deposits, and no credit cards issued. Wiedmaier also discovered accounts where the cardholders had done nothing but post security deposits, as well as accounts where there were no security deposits but where annual fees had been debited from the cardholders’ checking accounts. In total, he discovered 16,000 accounts, with balances totaling $2.2 million, which he thought were uncollectible. In a letter dated June 1, 1995, Boyd warned Baetz of the problems with these accounts. Nevertheless, and in spite of Wiedmaier’s protests, the accounts remained on BestBank’s books. Wiedmaier also attempted to develop a re-aging policy that would limit re-aging to the handful of situations in which it was appropriate. Wiedmaier reported his recommendations to Grace, Boyd, and Mattar, and Boyd informed Baetz and Gallant that they should not be re-aging accounts. The re-aging continued, however, and at some point, Boyd told Wiedmaier not to write or distribute memoranda that might cause problems with the FDIC. In August 1996, Wiedmaier was terminated with no explanation. At the end of 1995, Century and Best-Bank brought an end to their foray into secured credit cards by selling approximately 20,000 performing accounts to BankFirst of South Dakota. Through the sale of the secured program, Century earned $1.9 million dollars, $1 million of which it paid to BestBank and $500,000 of which it devoted to setting up a bad debt reserve to cover any non-performing accounts that it had sold. The evidence at trial did not show whether BestBank sustained a loss from the secured credit card program. In May 1996, Century and BestBank embarked on a new credit card venture. Under the new program, applicants for a BestBank credit card were still charged a $20 application fee, but unlike the previous program, the accounts were unsecured. Like the secured program, the unsecured program relied primarily on telemarketing, and BestBank established the underwriting criteria for each new applicant. Each card had a credit limit of $600, but in order to receive a card, an applicant automatically incurred a one-time charge of $498. This charge gave the cardholder a membership in the All Around Travel Club (“AATC”) — a venture in which Gallant and Baetz owned a 52% interest — and entitled the cardholder to various travel discounts and a voucher for a free cruise. Of the $498 membership fee, AATC received $100 and Century kept the balance. In addition to the $498 membership fee, recipients of the unsecured cards were charged an annual fee of $45. The $498 membership fee and $45 annual fee were charged to each new account within a day or two of the account being opened. Each new account therefore carried an automatic balance of $543, and had only $57 of available credit. Some of this $543 was deposited by BestBank into Century’s or BestBank’s bad debt reserve, or into Century’s participation account. Most of the $543, though, was quickly deposited by BestBank into Century’s operating account, and all of the $543 was recorded as a receivable on BestBank’s books, thereby inflating the value of BestBank’s assets. Some valid accounts were opened under the AATC program, but Century opened many of the accounts and received the $543 in fees without first receiving signed applications or $20 application fees. Sometimes, Century even posted additional charges to accounts that had never received payments. As with the secured program, Century concealed the existence of some accounts by not issuing plastic cards or sending account statements to the purported cardholders. For instance, as of September 1997, Century had failed to issue a plastic credit card for 179,000 of 224,000 accounts. Many of the account statements were shredded rather than sent to cardholders. In addition, Baetz and Gallant did not purchase nearly enough travel vouchers for AATC to provide free cruises to all new cardholders, and many of the new AATC members never received their travel packages. Under an agreement with the vendor of the travel vouchers, AATC purchased 1,000 vouchers per week while Century was simultaneously opening between 8,000 and 10,000 new accounts per week. Because of this disparity, over 340,-000 customers ultimately did not receive travel packages, despite the $498 membership fee that had been charged to each of their accounts. Some of these customers called to complain about not receiving their travel packages. AATC and Century continued selling new memberships and opening new accounts, even as the backlog of undelivered travel packages grew rapidly. The number of delinquencies in the unsecured credit card portfolio rose swiftly. In September 1997, BestBank received only 25,000 cardholder payments on 225,000 open, accounts. As of March 31, 1998, 307,000 out of 343,000 accounts were delinquent, over their credit limit, or had block codes preventing the cardholders from using the accounts. As delinquencies rose, Century disguised them in order to avoid its obligation to purchase delinquent and uncollectible accounts. Beginning in August 1996, Century began posting $20 credits to delinquent accounts at the direction of Baetz and Gallant. This caused the accounts to appear current. All incoming transactions on the FDR system had a particular transaction code identifying the type of transaction. The $20 credits were initially applied using the FDR transaction code 255, which was normally reserved only for the return of merchandise to a merchant. When the portfolio processor changed to FICI— which had different software than FDR— the credits were posted using transaction codes 22 and 21, both of which were normally reserved for cardholder payments. Century initially paid BestBank for the $20 credits through withdrawals directly from Century’s operating account. In March 1998, however, Century began transferring the money for these credits to BestBank through an elaborate system of wire transfers. Century would first wire the money from its operating account at BestBank to another Century account at Farmers and Merchants Bank in South Carolina, after which it would wire the money to a BestBank account at State Security Bank in Abilene, Texas. There, the money was co-mingled with legitimate cardholder payments and sent to Best-Bank, the end result of which was to hide the fact that the $20 credits were being paid by Century rather than actual cardholders. Although the effect of these $20 credits was to transfer money from Century to BestBank, these payments were far below what Century should have paid if it had refunded the entire $498 AATC membership fee and $45 annual fee to BestBank for each account. The application of the $20 credits disguised the true risk of the portfolio, making it very difficult for anyone to determine whether cardholders on these accounts would ever submit payment. Several BestBank employees eventually became aware of the credits, including Boyd, Grace, Mattar, and John Schmalzer (the risk manager at Best-Bank). Century applied the $20 credits up until July 23,1998, the day the FDIC shut down BestBank. Over time, the number of $20 credits increased, eventually reaching almost 10,000 credits per day. In 1998 alone, in the seven months before Best-Bank’s closure, Century posted $23,723,603 in credits. Several witnesses asserted at trial that the $20 credits were applied to accounts only because the cardholders had not yet received their travel packages from AATC. Witnesses also testified, however, that accounts were designated to receive credits depending upon whether the accounts were about to become delinquent. In addition, the credit limit on each account was reduced by the amount of the $20 credit, and if a cardholder made a payment after receiving a credit, the credit was reversed and the account was re-billed the $20. When asked about the credits, Baetz falsely informed one witness that they were cardholder payments sent electronically. Century also disguised delinquencies by posting “paid ahead” notations on accounts. The “paid ahead” mechanism is usually reserved for situations in which a cardholder is going on vacation, and in those instances, it requires the cardholder to have made a payment exceeding the previous balance. Century, however, posted the “paid ahead” notations on accounts that had never received any payments from the cardholders. The result was that no payments became due on the accounts during the “paid ahead” time period, and the accounts did not become delinquent. Ultimately, a total of 583,727 AATC accounts were opened, resulting in $316,963,005 in $543 charges alone. Of these 583,727 accounts, Century either purchased or charged off 75,910 accounts after determining them to be uncollectible. More significantly, of the 583,727 accounts, 243,110 accounts (forty-two per cent of the total) received only AATC credits; 166,097 accounts (twenty-eight per cent) received a combination of cardholder payments and AATC credits; 103,846 accounts (eighteen per cent) received only cardholder payments; and 70,674 accounts (twelve per cent) — mostly opened in the three months before BestBank closed — received neither credits nor cardholder payments. Between Century’s purchases of accounts, participation, and bad debt reserve, Century had the ability to cover approximately 161,545 accounts, a far cry from the 409,-207 accounts that received credits to disguise their delinquency. In the end, 2,231,938 credits were posted to accounts, totaling $49,587,580. For every month after October 1996, the number of credits exceeded the number of cardholder payments. In June 1998, for example, 235,195 credits were posted to accounts, while only 96,184 accounts received cardholder payments. By the time BestBank closed in July 1998, the dollar value of all delinquent accounts, including accounts that had received credits to disguise their delinquency, totaled $129,607,428 — almost one-half of the AATC portfolio’s $261,495,049 balance. In January 1998, Joseph Bour, a Best-Bank employee and former Colorado bank examiner, discovered that Century was posting the $20 credits to accounts. Fearing that BestBank might be exposed to losses totaling $50 million, Bour reported his concerns to Boyd, who responded that the Century relationship was very important to BestBank and that Bour needed to be careful about how he approached things. Boyd also told Bour that the credits were actually payments made by cardholders via Western Union. Ultimately, Bour communicated his concerns to Mattar, Schmalzer, and Grace (in addition to Boyd), and when he became convinced that they would not stop or remedy the problem, he promptly resigned and contacted the Colorado Division of Banking. By this time, Colorado regulatory officials and the FDIC had begun to question BestBank’s business practices. Fearful that the regulators would learn that Best-Bank’s assets were grossly overstated, Mattar, Boyd, and Grace undertook to save the bank from closure by further concealing Century’s fraud. They did this in part by accepting the continued $20 credits without question. When the regulators raised questions about the value of the credit card program, Mattar, Boyd, and Grace actively misled the regulators, lying about the program’s performance, the controls that had been put in place to ensure accuracy, and Century’s ability to indemnify BestBank for non-performing accounts. Enabled by Mattar, Boyd, and Grace, Century continued to open fraudulent accounts. As a result of the artificial growth in BestBank’s portfolio, moreover, Mattar and Boyd each received quarterly bonus payments totaling $6.9 million. Grace received bonus payments totaling over $100,000. With BestBank’s capital steadily declining, Mattar and Boyd made several attempts to sell BestBank. In the fall of 1997, they attempted to sell Mattar’s ownership interest in the bank to South Dakota banker Frank Farrar. Their asking price was $10.1 million, $8,333,000 of which Farrar would contribute in exchange for fifty per cent of BestBank’s stock, with Boyd owning the rest and continuing to operate the bank. Farrar performed extensive due diligence in evaluating the purchase. He received a spreadsheet from BestBank, which listed total delinquencies as $12 million as of September 1997. In reality, delinquencies totaled over $53 million. Farrar later received Century’s financial statements from Boyd. One set of financial statements omitted $35 million of delinquent accounts that Century was responsible for purchasing. These statements also omitted $6 million in $20 credits that Century had paid to BestBank over a six-month time period. Another set of financial statements claimed that shareholder equity in Century was almost $20 million, yet failed to mention that over $19 million of this amount consisted of delinquent AATC accounts worth only a fraction of their book value. In December 1997, Far-rar traveled to Florida and met with Baetz and Gallant. Baetz and Gallant were generally cooperative in answering Farrar’s questions, but never disclosed the problems they were having with the travel packages or the $20 credits that they were applying to delinquent accounts. Ultimately, Farrar chose not to purchase Best-Bank. In April 1998, Mattar and Boyd attempted to sell a sixty per cent controlling interest in BestBank to Cerberus Partners for $23 million. Cerberus also conducted due diligence on BestBank. In doing so, it attempted to focus on the number of delinquencies and cardholder payments, as well as on Century’s indemnification performance. Cerberus did not receive all of the information it requested regarding these subjects. When Cerberus did receive some of the information, moreover, Grace misstated the number of delinquencies, claiming there were $9.8 million of delinquencies as of December 31,1997, and $8.5 million of delinquencies as of March 31, 1998 — when in fact there were $62.5 million as of December 31, 1997, and $86.8 million as of March 31,1998. Cerberus representative Ronald Gold-stein traveled to Florida to meet with Baetz and Gallant. Neither Baetz nor Gallant disclosed any problems with cardholder payments or the $20 credits that they were applying to accounts. Although Baetz and Gallant showed Goldstein the AATC travel packages, they did not disclose the problems with sending travel packages to cardholders. In July 1998, after learning that the FDIC was investigating BestBank, Cerberus lost interest in purchasing the bank’s stock. At the same time BestBank was attempting to sell its own stock to Cerberus, Baetz and Gallant hired David Taffet to sell the BestBank credit card portfolio— including Century’s participation in that portfolio. Taffet attempted to market the $200 million pool of credit card receivables in the AATC portfolio and to identify potential purchasers, such as large institutional investors. Baetz and Gallant agreed that Century would pay two per cent of the sale price to Taffet. They also agreed to provide him with all the information he needed to market the portfolio. To sell the portfolio, Taffet began to put together a “book” to present to potential purchasers, explaining the details of the portfolio. He attempted to gather information from Baetz and Boyd, asking them for details on delinquency rates and loan losses. He also requested the “master tape” detailing all transactions, as well as the underwriting criteria for the credit cards and any call reports filed with the FDIC. He never received the “master tape.” BestBank informed him that 97.3% of the portfolio was current, and that only 2.7% was delinquent. When Taffet asked Baetz and Gallant how delinquencies could be so low for a sub-prime credit card portfolio, Baetz claimed this was due to Century’s superior collection efforts. Baetz also told Taffet that the FDIC evaluations of BestBank had gone well, that the AATC program was running smoothly, and that AATC cardholders were receiving their travel packages. Based on this information, Taffet concluded that the credit card portfolio had no delinquency risk, and he attempted to sell the portfolio at a premium above the $200 million book value. When BestBank ultimately closed in July 1998, most potential purchasers immediately lost interest in the portfolio. Taffet concluded that Baetz and Gallant had provided him with inaccurate information and confronted them in August 1998. Taffet told them that he believed delinquencies were actually much higher than they had reported, and that they were using credits and re-aging to disguise the true performance of the portfolio. Baetz admitted to making the credits, and he claimed that they were for dissatisfied AATC customers — which contradicted his previous assertions that the AATC program was running smoothly. Baetz then admitted to Taffet that the portfolio was, in reality, worth only about thirty per cent of its $200 million book value. Following an inspection of BestBank in June 1998, regulators concluded in July 1998 that BestBank was insolvent. On July 22, 1998, the Colorado Division of Banking ordered an immediate infusion of new capital in the amount of $151,515,000. When BestBank failed to meet this capital call, the State of Colorado closed Best-Bank on July 23, 1998. The FDIC was appointed receiver. At the time, Century had approximately $8 million in its bad debt reserve, $46 million in its participation account, and $4 million in its operating account, while BestBank had approximately $3 million in its bad debt reserve— for a total of $61 million. The FDIC refused to release money from any of these accounts. At trial, several counts against the defendants involved call reports submitted by BestBank to the FDIC. As an FDIC-insured bank, BestBank was required to file quarterly call reports with the FDIC, listing loan delinquencies and reporting the amount of money set aside as a bad debt reserve. The instructions for filing the call reports are publicly available on the FDIC’s website. Bank officials usually prepare call reports from the bank’s records, and an officer and two directors must sign and certify each call report. In a call report filed on June 30, 1995, BestBank stated that 412,000 accounts were 30-89 days delinquent, and 116,000 accounts were 90 or more days delinquent. To cover potential losses from these loans, BestBank stated in the call report that it had set aside a bad debt reserve of approximately $340,000. However, starting with the call report filed in September 1996, and continuing for all call reports filed through July 1998, BestBank reported that its credit card portfolio had zero delinquencies. The lack of reported delinquencies corresponded with a much smaller bad debt reserve than BestBank would otherwise have been required to report. This, in turn, provided BestBank with more net income than if its bad debt expenses had been higher. Charles Wolfschlag, the cashier and a director of BestBank, testified that the information provided to BestBank’s Board of Directors indicated that the credit card portfolio had no delinquencies after September 1996. He explained that the Board approved BestBank’s bad debt reserve based, in large part, on this information. Wolfschlag testified that he had never seen Wiedmaier’s memorandum detailing problems with the secured portfolio, and if he had seen it, he never would have signed the call report that BestBank submitted on June 30, 1995. Wolfschlag also testified that the Board never approved simultaneous crediting and debiting of the annual fees on accounts in the secured portfolio, nor did the Board approve $20 credits or “paid ahead” notations on accounts in the unsecured portfolio. He stated that he never would have signed the call reports if he had known about the credits. Baetz and Gallant knew of BestBank’s obligation to file call reports and to submit to FDIC inspections, and on one occasion, Grace sent them a memorandum asking for their assistance in making BestBank appear solvent. On another occasion, in the spring of 1998, Baetz told Robert Kane, who was marketing vacation packages for AATC, that payments to Kane were being delayed because BestBank needed to bolster its cash position during an FDIC examination. During the 24 months preceding Best-Bank’s closure, Century deposited a total of $11.7 million into Gallant’s personal bank account. Of this $11.7 million, $6.4 million was deposited from payroll, and $5.3 million consisted of other payments. During the same time period, Century deposited $11.6 million into Baetz’s personal bank account. Of this $11.6 million, $6.5 million was deposited from payroll, and $5.1 million consisted of other payments. II. PROCEDURAL BACKGROUND In 2003, a federal grand jury returned a ninety-five count indictment naming Baetz, Gallant, Boyd, Grace, and Mattar as defendants. It included charges of conspiracy, bank fraud, accepting a commission or gift in exchange for procuring loans, filing false bank reports, wire fraud, participating in a CFCE, money laundering, securities fraud, tax evasion, and failing to file a tax return. The defendants requested separate trials pursuant to Federal Rule of Criminal Procedure 14(a). As the tax allegations applied only to Mattar, the government agreed to his request to sever those counts, and the district court ultimately granted that severance request. The government otherwise opposed severance, but the district court ordered two separate trials, one for Century defendants Gallant and Baetz, and one for BestBank defendants Mattar, Boyd, and Grace, based on the possibility of mutually antagonistic defenses between those groups of defendants. The trial of the Century defendants was held first. At the close of the government’s case, the court dismissed several of the wire fraud counts, all of the money laundering counts, and the count of receiving a commission in exchange for procuring a loan. A jury ultimately returned guilty verdicts for filing false bank reports, wire fraud, conspiracy, participating in a CFCE, and most of the bank fraud counts. Baetz and Gallant each moved for a judgment of acquittal on several counts of conviction, and the district court ultimately dismissed several of the bank fraud convictions. The Century defendants then proceeded to sentencing. The government first filed a statement regarding sentencing, which outlined its view as to the applicable enhancements for Baetz and Gallant. It also called for restitution and forfeiture. A parole officer then prepared Presentence Investigation Reports (“PSRs”) for the Century defendants, which calculated a total offense level of 34 and a criminal history of I for both men. This resulted in a recommended Guidelines range of 151-188 months’ imprisonment. The PSRs also called for a total of $309,476,381 in restitution, and recommended an additional 3-level upward departure based upon the extent of loss created by the defendants. This additional enhancement would result in a Guidelines range of 210-262 months. The government also filed a motion for orders of forfeiture against Baetz for $11,604,179 and Gallant for $11,747,091. The district court denied this motion, but did “not foreclose the possibility of a further hearing to determine an appropriate amount as part of the sentencing process.” App’x Vol. II at 594. The government and the defendants filed objections to the PSRs. While the parole officer reviewed those objections, the court, expressing concern regarding the effect of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), on its ability to calculate loss under the Federal Sentencing Guidelines, asked the parties to submit briefs addressing that issue. After reviewing the briefing of the parties, the district court elected to delay sentencing until after the completion of the BestBank defendants’ trial. The court determined that evidence presented in the BestBank trial might impact the calculation of the amount of loss associated with the Century defendants. It also expressed a belief that delay would be more efficient because of the significant overlap between the sentencing issues involving the two sets of defendants. The court then held the trial of the BestBank defendants. The case began as a jury trial, but the defendants agreed to proceed with a bench trial after one of the defendants’ attorneys fell ill, interrupting the trial. At the close of trial, the court issued its findings pursuant to Federal Rule of Criminal Procedure 23(c). It acquitted the BestBank defendants of securities fraud, money laundering, receiving a gift in exchange for procuring a loan, and participating in a CFCE, but found them guilty of conspiracy and several of the counts of bank fraud, filing false bank reports, and wire fraud. On the same day the district court issued its Rule 23(c) findings, it ordered a hearing to resolve the procedures for sentencing the five defendants. At that hearing, the court expressed the view that the nature of the underlying offenses made the usual procedure of having a parole officer calculate the offense level as part of a PSR inefficient. This led the court to depart from the procedures outlined in Federal Rule of Criminal Procedure 32. It asked the government to submit a brief defining its position on how each defendant should be sentenced in order to have the government’s positions with respect to all five defendants in a single document. The court stated that it would then allow each of the defendants to respond to any objectionable aspects of that brief. The most contentious point in the briefing was related to the calculation of the amount of loss caused by the defendants’ conduct under section 2F1.1 of the Guidelines. The government presented the court with three possible approaches to calculating loss for the bank fraud counts, which varied between $206,775,813 and $141,402,151 for Gallant and Baetz and $65,156,797 and $42,599,862 for Boyd and Grace. For the wire fraud counts, the government argued that the measure of loss should be intended, rather than actual, loss. It calculated the intended loss at more than $140,000,000 for the attempt to sell the AATC credit card portfolio, which only applied to the Century defendants. It also calculated for both sets of defendants $23,000,000 in intended loss for the scheme to sell BestBank stock to Cerberus Partners, and $8,300,000 for the attempt to sell BestBank stock to Farrar. The government also sought restitution pursuant to the Mandatory Victims Restitution Act. See 18 U.S.C. § 3663A. It called for restitution divided between the five defendants to each victim in the full amount of each victim’s loss, which included $206,775,813 to the FDIC and $1,360,239 to Cerberus. The government also argued that Gallant and Baetz separately owed restitution to David Taffet in the amount of $12,500. The government requested forfeiture from each defendant equal to the money paid as salary, bonus payments, and advances from the time when each defendant became aware of the scheme and calculated this amount at $11,604,179 for Baetz, $11,747,091 for Gallant, $4,743,909 for Boyd, and $92,643 for Grace. The government sought additional base level enhancements for each of the defendants. It requested a two-level enhancement for all four defendants’ involvement in a fraud that involved more than minimal planning. See U.S.S.G. § 2Fl.l(b)(2). It also sought a four-level leader/organizer enhancement against Baetz, Gallant, and Boyd for their roles in the criminal enterprise, and a three-level manager/supervisor enhancement against Grace. The government also sought a four-level enhancement against all four defendants for committing a fraud that jeopardized the safety or soundness of a financial institution. See U.S.S.G. § 2Fl.l(b)(6). Finally, the government requested a two-level enhancement for the BestBank defendants for abusing positions of trust. See U.S.S.G. § 3B1.3. Following briefing on these issues, the district court issued an order confirming that it would depart from the procedures outlined in Rule 32 and instead calculate the applicable Guidelines range itself. The court also stated that it would make its determination “considering only the respective trial records.” App’x at 952. The government objected, arguing that the trial records alone would “not provide the Court with an accurate measure of harm resulting from the commission of the offenses” with respect to the calculation of loss under U.S.S.G. § 2F1.1 or in determining restitution mandated by 18 U.S.C. § 3663A. App’x at 953. The government requested an evidentiary hearing with respect to loss, arguing that “[wjhile the quantification of the loss for guideline purposes and restitution are issues inextricably linked to the evidence that was presented at trial, the evidence as to guilt is not coextensive with the proof of the amount of loss and the amount of harm to be compensated in an order for restitution.” Id. at 953-54. The defendants argued that the court could not receive new evidence based on the Sixth Amendment. The court held a hearing addressing the government’s objection and determined that it would issue a preliminary Guidelines calculation that would address the issues of loss, restitution, and forfeiture based solely on evidence in the trial record. It determined that it would allow the parties to submit objections to that calculation in which they could provide an offer of proof and request an evidentiary hearing. The court subsequently issued its calculation of the Guidelines range. It agreed with the defendants regarding section 2F1.1, finding that “[t]he amount of losses caused by the defendants cannot be calculated by any formula that fairly considers their individual roles in the offenses and the intervention by the bank regulators and the FDIC as receiver.” App’x at 979. The court elected to measure loss under section 2Fl.l(b) based on what each defendant gained as a result of the criminal enterprise. The court found that Baetz received $11,604,179 from the scheme, while Gallant gained $11,747,091. These amounts triggered a fifteen-level increase for both defendants that enhanced their offense levels from 6 to 21. The court also found that Boyd received $4,743,909, which increased his offense level from 6 to 19, and that Grace received $117,643, increasing his offense level from 6 to 12. The court then proposed a two-level enhancement against all of the defendants for their involvement in a criminal enterprise that involved more than minimal planning, as well as four-level enhancements for committing a crime that substantially jeopardized the safety and soundness of a financial institution. The court also proposed a four-level leader/organizer enhancement against Baetz, Gallant, and Boyd and a three-level manager/supervisor enhancement against Grace. The court did not recommend an enhancement against the BestBank defendants for abusing a position of trust, however, because the “adjustment may not be employed if an abuse of trust is included in the determination of other specific offense characteristics and that is the case here where § 3Bl.l(a) has been employed because of the positions held by these bank officers.” Grace App’x Vol. IV, Doc. 1153 at 9. The district court ultimately calculated an adjusted offense level of 31 for both Baetz and Gallant, which, when coupled with a criminal history of I, carried a Guidelines range of 108-135 months. The district court also calculated an adjusted offense level of 29 and a criminal history of I for Boyd, which called for a Guidelines range of 87-108 months. Finally, it calculated an offense level of 27 for Grace, which given his criminal history of I resulted in a Guidelines range of 70-87 months. The district court determined that it would not provide restitution to any of the four victims identified by the government. It did, however, impose forfeiture against each of the defendants “in the form of money judgments in the same amounts as the computation of the amount of loss attributed to each defendant in the calculation of the specific offense levels applicable to each.” Grace App’x Vol. IV at 986. The parties then submitted their objections to the district court’s calculations. Baetz and Gallant objected to the imposition of a leader/organizer enhancement and the imposition of forfeiture. Boyd and Grace both objected to the imposition of enhancements for jeopardizing the soundness of a financial institution, as well as their enhancements for their roles in the offense. Grace also claimed that the enhancement for committing an offense involving more than minimal planning was erroneous. Both BestBank defendants also submitted briefs arguing that permitting the government to offer additional proof of the amount of loss would violate the Sixth Amendment. The government objected to the district court’s calculation of loss and the decision not to order restitution. The government also made an offer of proof regarding the basis of its proposed calculation of loss caused by BestBank’s failure. At the Century defendants’ sentencing hearing, the district court rejected all objections, and imposed within-Guidelines sentences of 120 months for Baetz and Gallant, which represented the mandatory minimum sentence for the CFCE conviction. The court also imposed fines of $18,600 against each defendant, and ordered forfeiture against Baetz for $11,604,179 and Gallant for $11,747,091. The district court also rejected all objections made during sentencing of the Best-Bank defendants. It imposed within-Guidelines sentences of 90 months for Boyd and 72 months for Grace, imposed fines of $16,500 against each defendant, and ordered forfeiture of $4,743,909 against Boyd and $92,643 against Grace. III. CHALLENGES TO GALLANT’S & BAETZ’S CONVICTIONS A. Sufficiency of the Evidence The evidence was sufficient to support the convictions of Baetz and Gallant, except with regard to Counts 55 and 56. “ ‘Evidence is sufficient to support a conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in a light most favorable to the government.’ ” United States v. Nelson, 383 F.3d 1227, 1229 (10th Cir.2004) (quoting United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997)). “We will not weigh conflicting evidence or second-guess the fact-finding decisions of the jury.” United States v. Summers, 414 F.3d 1287, 1293 (10th Cir.2005). “Rather than examining the evidence in ‘bits and pieces,’ we evaluate the sufficiency of the evidence by ‘considering the collective inferences to be drawn from the evidence as a whole.’” Nelson, 388 F.3d at 1229 (quoting Wilson, 107 F.3d at 778). Our court follows the “waiver rule,” which requires “a defendant who moved for a judgment of acquittal at the close of the government’s case [to] move again for a judgment of acquittal at the close of the entire case if he thereafter introduces evidence in his defense.” United States v. Flanders, 491 F.3d 1197, 1207-OS (10th Cir.2007) (citations and internal quotation marks omitted). Under this rule, we review for plain error where a defendant appeals the sufficiency of the evidence based upon an argument that he failed to make or reaffirm before the district court. Id. at 1208. Our plain error analysis in this context, however, is “essentially the same” as our usual sufficiency-of-the-evidence analysis. Id. 1. Bank Fraud (Counts S2-W-Whether BestBank’s alleged “knowledge” of the fraud mandates reversal Baetz and Gallant first argue that we should reverse their convictions for bank fraud because the government introduced no evidence that they concealed, or attempted to conceal, the fraud from Best-Bank. They contend that BestBank was aware of the credits and re-aging practices and, as a result, they cannot be guilty under 18 U.S.C. § 1344(1) of defrauding BestBank. The evidence was sufficient to support the convictions of Baetz and Gallant for bank fraud, and the participation of several BestBank directors and officers in the fraud does not negate Baetz and Gallant’s culpability under 18 U.S.C. § 1344(1). The statute provides: Whoever knowingly executes, or attempts to execute, a scheme or artifice— (1) to defraud a financial institution; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. 18 U.S.C. § 1344(1). “Under 18 U.S.C. § 1344(1), the government must prove that: (1) the defendant knowingly executed or attempted to execute a scheme or artifice to defraud a financial institution; (2) the defendant had the intent to defraud a financial institution; and (3) the bank involved was federally insured.” Flanders, 491 F.3d at 1212. “The phrase ‘scheme or artifice to defraud’ simply requires a design, plan, or ingenious contrivance or device to defraud.” Id. (quoting United States v. Hill, 197 F.3d 436, 444 (10th Cir.1999)) (alteration and some quotation marks omitted). Under § 1344, “the intent necessary for a bank fraud conviction is an intent to deceive the bank in order to obtain from it money or other property.” United States v. Kenrick, 221 F.3d 19, 26-27 (1st Cir.2000) (en banc). “Section 1344 was intended to reach a wide range of fraudulent activity that undermines the integrity of the federal banking system,” and “courts have liberally construed the statute.” Flanders, 491 F.3d at 1212 (citation and internal quotation marks omitted). “The broad range of schemes covered by the statute is limited only by a criminal’s creativity.” United States v. Norton, 108 F.3d 133, 135 (7th Cir.1997). Baetz and Gallant appear to argue that because their conduct was not concealed from BestBank, the evidence was insufficient to show either “a scheme or artifice to defraud” or “intent to defraud” under § 1344. In United States v. Rackley, 986 F.2d 1357, 1361 (10th Cir.1993), we rejected a similar argument, explaining: Defendant confuses the notion of defrauding a federally insured bank with the idea of defrauding its owner or directors. It is the financial institution itself—not its directors or agents—that is the victim of the fraud the statute proscribes.... Thus, even if [the owner of the banks] knew the true nature of the loan transactions, the institutions could nevertheless be defrauded. Id. (citations omitted). In Rackley, the government had produced evidence that “defendant’s interest in the particular loans was not included in the loan files, mentioned to the board members, or discussed at board or loan committee meetings,” and the banks “would not have approved the loans or authorized the payments at closing had the loan documents accurately reflected defendant’s interest in the loans.” Id. at 1362. We concluded, therefore, that the evidence was sufficient to support the defendant’s conviction, even if the owner and directors of the banks were aware of the fraud. Id. Likewise, in United States v. Waldroop, 431 F.3d 736, 742 (10th Cir.2005), the defendant contended that there was insufficient evidence to support his conviction for bank fraud because “he informed Mayfield [ (an Executive Vice President at the bank) ] and Mayfield’s secretary of his involvement with the loans.” Again, we rejected this argument, explaining that it is not a defense to the charge that he colluded with Mayfield to commit bank fraud. It is the financial institution itself—not its officers or agents—that is the victim of the fraud 18 U.S.C. § 1344 proscribes. It follows that bank customers who collude with bank officers to defraud banks may also be held criminally accountable either as principals or as aiders and abettors. Id. (citation, alterations, and internal quotation marks omitted). The government produced sufficient evidence of Baetz and Gallant’s scheme and intent to defraud BestBank. The evidence showed that Baetz and Gallant opened a host of bogus accounts under the secured and unsecured credit card programs. They immediately made charges to these accounts, causing BestBank to transfer hundreds of millions of dollars to Century’s operating account. Then, instead of purchasing delinquent and uncol-lectible accounts back from BestBank — as they had agreed to do — Baetz and Gallant used a number of artifices to conceal account delinquencies. These artifices included re-aging and simultaneous debits and credits on the secured accounts, and $20 credits and “paid ahead” notations on the unsecured accounts. The government also introduced sufficient evidence that BestBank, as an institution, did not know or approve of the defendants’ actions. For instance, Charles Wolfschlag testified that BestBank’s Board of Directors was never informed of the problems with the credit card portfolios, and the Board never knew or approved of the artifices that Baetz and Gallant used to conceal delinquencies. Likewise, Jon Wi-edmaier’s and Joseph Bout’s testimony indicates that defendants’ actions were not common knowledge at BestBank. Both Wiedmaier and Bour stumbled across the problem unexpectedly. Both Wiedmaier and Bour, after investigating the problem, were concerned of its potential to render BestBank insolvent. Both Wiedmaier and Bour received warnings from Boyd when they started asking questions and investigating the problem. Finally, both Wied-maier and Bour saw their employment end — Wiedmaier, involuntarily — after bringing the problem to Boyd’s attention. Just because Boyd, Grace, and Mattar were complicit in the scheme does not mean that BestBank, as an institution, knew or approved of what Baetz and Gallant were doing. Baetz and Gallant are not absolved from bank fraud by having successfully recruited BestBank officers and directors to participate in their scheme, see Waldroop, 431 F.3d at 742; Rackley, 986 F.2d at 1361, and the evidence was sufficient to support their convictions under 18 U.S.C. § 1344(1). 2. Bank Fraud (Counts 32-H): Whether the evidence was sufficient to show “executions” of the bank fraud scheme, and whether the counts were multiplicitous Baetz and Gallant make two additional challenges to their bank fraud convictions. They first contend that “the alleged bank fraud scheme involved delinquent loan reporting,” so “it could not properly have been an ‘execution’ of that reporting scheme for BestBank simply to have placed new loan proceeds into [Century’s] operating account....” Baetz Br. at 26 (emphasis omitted). Second, they contend that the bank fraud counts were multiplici-tous because they did not involve separate “executions” of the bank fraud scheme. Their first argument is unpersuasive. The indictment alleged that Baetz and Gallant “knowingly executed ... a scheme and artifice to defraud BestBank, a financial institution,” and for Counts 32-44, the indictment alleged that “[t]he scheme was executed when the following moneys, funds, credits, assets, and other property of BestBank in approximately the amounts listed [in Counts 32-44] were transferred to [Century’s] operating account at Best-Bank.” App’x at 112, 115. Contrary to Baetz and Gallant’s argument, the alleged bank fraud scheme was not limited to “delinquent loan reporting.” Nor was the scheme required to be. As explained above, § 1344 “was intended to reach a wide range of fraudulent activity that undermines the integrity of the federal banking system,” and “[t]he phrase ‘scheme or artifice to defraud’ simply requires a design, plan, or ingenious contrivance or device to defraud.” Flanders, 491 F.3d at 1212 (citations and some internal quotation marks omitted). The government properly charged and proved the bank fraud scheme as being executed when funds were transferred to Century’s operating account, and Baetz and Gallant’s argument fails to the extent it argues otherwise. Baetz and Gallant’s multiplicity argument is a closer question, but in the end, the bank fraud counts were not multi-plicitous. Under § 1344, “an offense occurs upon each execution or attempted execution of a scheme to defraud.” United States v. Burger, 964 F.2d 1065, 1074 (10th Cir.1992). “[A] single scheme can be executed a number of times,” United States v. Longfellow, 43 F.3d 318, 323 (7th Cir.1994), and “the question in each case is what constitutes an ‘execution of the scheme,’ ” Molinaro, 11 F.3d at 860 (citation and some internal quotation marks omitted). The answer to this question is heavily fact-dependent, see id., and “[a] number of factors are relevant in determining whether a single or multiple executions of bank fraud have taken place, including the number of banks, the number of transactions, and the number of movements of money involved in the scheme,” United States v. Brandon, 17 F.3d 409, 422 (1 st Cir.1994). “Each time an identifiable sum of money is obtained by a specific fraudulent transaction, there is likely to be a separate execution of the scheme to defraud.” Id. “The central question for determining multiplicity is whether a jury could plausibly find that the actions described in the disputed counts of the indictment, objectively viewed, constituted separate executions of the bank fraud scheme.” United States v. Powell, Case No. 98-1111, 1999 WL 221497, at *2 (10th Cir. Apr.16, 1999) (quoting United States v. Wall, 37 F.3d 1443, 1446 (10th Cir.1994)). Here, the thirteen counts of bank fraud involved separate transfers of money from BestBank to Century’s operating account, and although the scheme to defraud Best-Bank was ongoing, these discrete transfers were what ultimately put BestBank at risk of loss. See Brandon, 17 F.3d at 422. The government appropriately charged each transfer of money into Century’s operating account as a separate execution of the scheme to defraud, and the bank fraud counts were not multiplicitous. See Powell, 1999 WL 221497, at *2 (“The charged scheme called for the withdrawal of unauthorized funds from the targeted banks, using an account balance secured through the deposit of uncollectible checks. Accordingly, each withdrawal was a separate and distinct execution of the same scheme, not an integrally-related act in furtherance of a single offense.”). 3. Call Reports (Counts Jp7-5k): Whether Baetz and Gallant knew the entries on the call reports were false Baetz and Gallant next challenge their convictions under 18 U.S.C. §§ 1005 and 2, for aiding and abetting the filing of false call reports. They argue that the evidence was insufficient because the government failed to show that they had knowledge of the FDIC’s “arcane instructions” or the “accounting rules that allegedly made the reports false.” Baetz Br. at 29. The evidence was sufficient to support the convictions of Baetz and Gallant for their involvement in filing the false call reports. To convict a defendant under 18 U.S.C. §§ 1005 and 2, the government must prove that “(1) defendant made a false entry in bank records, caused it to be made, or aided and abetted its entry; (2) defendant knew the entry was false when it was made; and (3) defendant intended that the entry injure or deceive a bank or public official.” United States v. Wolf, 820 F.2d 1499, 1504 (9th Cir.1987); see also Flanders, 491 F.3d at 1214. The defendant need not have made the false entries himself; as long as the defendant had the intent necessary under the statute, “it suffices that he set into motion management actions that necessarily caused [someone else] to make false entries.” Wolf, 820 F.2d at 1504; see also Flanders, 491 F.3d at 1215. Under § 1005, moreover, “an omission of material information qualifies as a false entry.” Flanders, 491 F.3d at 1214-15 (citation and internal quotation marks omitted). “The purpose of the statute is to ensure that ‘upon an inspection of a bank, public officers and others would discover in its books of account a picture of its true condition.’ ” Flanders, 491 F.3d at 1214 (quoting United States v. Darby, 289 U.S. 224, 226, 53 S.Ct. 573, 77 L.Ed. 1137 (1933)). The evidence was sufficient to show that BestBank’s call reports grossly understated the number of delinquencies and the adequacy of BestBank’s bad debt reserve. The government also introduced sufficient evidence that B