Full opinion text
OPINION McKAY, Circuit Judge: These appeals recount a sadly familiar tale from the Eighties: the financial looting of a federally-insured lending institution by would-be robber barons. The following facts are those which the jury reasonably could have found. The architect of this particular scheme, Defendant Charles W. Knapp, controlled a suite of financial service corporations collectively identified as the “Trafalgar entities.” In the spring of 1988, Mr. Knapp was gathering capital to fund a foray into the insurance business. Defendant Anthony Sarno, who headed a financial consulting firm, was retained by Mr. Knapp to “build a balance sheet” that would enable Mr. Knapp to enter the reinsurance industry. Mr. Sarno planned to obtain assets for the various Trafalgar corporations through a series of stock swaps with other small businesses: After exchanging its preferred stock with the preferred stock of an outside corporation, a Trafalgar entity would note an increase in shareholders’ equity equal to the value of the transferred stock and then record the acquisition of an asset equal to the value of the received stock. Among those companies solicited by Mr. Sarno were three companies partially owned by Defendant Joseph Nash, a CPA and long-time associate of Mr. Sarno who used his influence on behalf of his Mend. Mr. Nash’s advocacy proved unavailing, however, and the three corporations — Paperu-lers, Inc., Star-Glo Industries, and Detroit Body Products — rejected Mr. Sarno’s overtures. Mr. Sarno’s other efforts likewise failed to meet with great success, and in June 1988, Mr. Knapp, whose companies were plagued with cash flow difficulties, sought out alternative sources of funds. Mr. Knapp found Mr. Gary Driggs, at that time the President of Western Savings and Loan and presently an unindicted co-conspirator of the Defendants. Mr. Knapp was desperate to borrow money; Mr. Driggs, in turn, was desperate to lend it. Western agreed to loan Trafalgar Capital $15 million if Trafalgar Capital could submit a financial statement showing a net worth of $45 million. The loan was to close on June 30, and an audited financial statement was due by August 1. Messrs. Knapp and Sarno redoubled their efforts to bufld an appropriate balance sheet for Trafalgar Capital. On June 22,1988, Mr. Knapp submitted to Western a draft financial package based upon a “pro forma” Trafalgar Capital financial statement. This pro forma statement assumed that stock swaps worth $108 million would close by June 30. These assumptions notwithstanding, in the last week of June Mr. Sarno informed Mr. Knapp that the stock swap method would not suffice to create the net worth desired for Trafalgar Capital. Undaunted, Mr. Knapp quickly discovered a transaction that would generate the paper assets needed to put Trafalgar over the top. Mr. Knapp turned to Mr. Bill Morgan, a business associate who occasionally worked as real estate broker in Texas. Mr. Morgan brokered a deal between Trafalgar Interests of Texas (“TIOT”), a Knapp entity that was not (in form at least) a subsidiary of Trafalgar Capital, and the owners of the Circle C Ranch, a financially troubled residential development near Austin, Texas. On June 28, the Circle C owners agreed to sell TIOT a one-half interest in the Circle C for $31.5 million. Mr. Knapp tendered a check for $1 million, with $30.5 million in promissory notes to follow. On June 29, TIOT transferred its interest in the Circle C to a subsidiary of Trafalgar Capital for $71 million — $1 million in cash (which would be used to fund the cheek given to the owners of the Circle C) and $70 million in Trafalgar Capital preferred stock. Trafalgar Capital did not assume the $30.5 million debt incurred by TIOT in purchasing the Circle C. The net result of this non-arms-length transaction was therefore the acquisition by Trafalgar Capital of a (supposed) $71 million asset in exchange for a $70 million increase in shareholder equity. On June 28, 1988, Messrs. Sarno and Knapp prepared and submitted a second “pro forma” financial package to Western. Like its predecessor, this package also assumed that the deals described therein would close by June 30. The information given Western indicated that Trafalgar Capital’s net worth far exceeded $45 million. Anticipating the events of the next day and undeterred by the purchase price paid by TIOT on the morning of June 28, Trafalgar Capital’s financial statement listed the Circle C as a $71 million asset unencumbered by any debt. The financial package, relying upon papers of intent signed that same day by Joseph Nash, also assumed that Paperulers, Star-Glo, and Detroit Body would swap with Trafalgar Capital an amount of stock whose value substantially exceeded the net worth of each of those companies — notwithstanding the earlier refusal by those companies to do that very thing. While generally labelling its representations vis-a-vis the Circle C and the stock swap as “assumptions,” the financial package warranted that the impact of all transactions (hypothetical and otherwise) had been calculáted in accordance with “generally accepted accounting principles” (“GAAP”). On June 80, 1988, Mr. Brian O’Boyle, a Western loan officer, met with Mr. Sarno and representatives of Trafalgar Capital to finalize the loan agreement. At this meeting, Mr. Sarno disclosed to Mr. O’Boyle the elements of the Circle C deal, and assured him that the $40 million “step-up” in the value of the Circle C comported with GAAP. The loan for $15 million closed at the end of the meeting. Trafalgar received $13 million by July 6; the remaining $2 million was withheld pending an audit of Trafalgar Capital. Messrs. Knapp and Sarno looked to Mr. Nash (a CPA and the head of his own accounting firm) to perform the required audit. On Mr. Nash’s advice, the Circle C “step-up” was retroactively re-created to bring the deal into better alignment with GAAP. The Defendants backdated documents that purported to excise TIOT from the deal and, in its place, to substitute Nepenthe, Inc.,' a shell corporation owned by Mr. Morgan. Nepenthe then retroactively sold the property to Trafalgar Insurance for $71 million — $1 million in cash (which had, in fact, already been paid by Mr. Knapp) and $70 million in Trafalgar Capital preferred stock. As had TIOT, Nepenthe on paper retained the $30.5 million owed to the sellers of the Circle C, and Trafalgar Capital again bought a $71 million asset for a comparatively trivial payment. To further bolster Trafalgar Capital’s financial statement, during July 1988, Messrs. Knapp, Sarno, and Nash fabricated a series of transactions to augment Trafalgar’s otherwise meager income stream by roughly $1.8 million. On July 28, 1988, Mr. Nash signed a standard opinion letter certifying the audit of Trafalgar Capital. Western funded the remaining $2 million shortly thereafter. Through the remainder of 1988 and the early months of 1989, the Defendants continued their efforts to cloak the events surrounding the Western loan with a semblance of propriety, albeit with little success. Trafalgar defaulted on its loan later in 1989. On March 3, 1993, the Defendants were indicted for thr.ee counts of violating 18 U.S.C. § 1014 by submitting false statements to a federally insured lending institution, for the purposes of inducing a loan. The charges arose, from the submission of the June 22,1988, financial package, the June 28, 1988 financial package, and the audited financial statement, respectively. The Defendants were also indicted for conspiracy to violate 18 U.S.C. § 1014. After a two-week jury trial, Messrs. Sarno and Knapp were found guilty of conspiracy and of two substantive violations of § 1014 (corresponding to the June 28 financial package and the audited’ financial statement). Mr. Nash .was convicted of conspiracy and of one substantive violation of § 1014 (corresponding to the audited statement). The jury acquitted Mr. Knapp on the remaining count (the June 22 draft financial package), and was unable to reach a verdict with respect to Mr. Sarno on that count. On appeal, each defendant makes numerous allegations of error. Each allegation is addressed in turn below. Arguments common to more than one defendant are, of course, grouped. I. Treatment of “Pro Forma” Financial Documents under § 1014 From the outset of this case, Messrs. Knapp and Sarno have assiduously argued that the term “false statement,” as used within the meaning of § 1014, does not comprise — as a matter of fact or law — the class of allegedly hypothetical representations made by the June 28, 1988, “pro forma” financial package. The Defendants argue that the “pro forma” financial statement— which they equate to an explicitly hypothetical representation — is not an assertion of fact and, thus, cannot as a matter of law be either true or false. Hence, they conclude, the June 28 package could not have violated § 1014, which by its terns requires a “false statement.” Cf. Williams v. United States, 458 U.S. 279, 284-85, 102 S.Ct. 3088, 3091-92, 73 L.Ed.2d 767 (1982) (holding that a bad cheek cannot qualify as a false statement under § 1014 because “technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as ‘true’ or ‘false.’ ”). It must be admitted that the Defendants’ reasoning is not totally devoid of legal merit. Williams; fairly read, indicates that a transactional document need not be a factual representation within the meaning of § 1014 — "" even where, as in Williams, a document is commonly understood to imply the existence of certain factual conditions. Beyond its resolution of the issue immediately before the Court, however, Williams gives little guidance to the task of defining, or even identifying, a “statement of fact.” Few other cases even touch on the general aspects of the question advanced by the Defendants— when can an allegedly hypothetical statement be treated as a criminal misrepresentation of fact? — and apparently no case addresses this issue in detail. This circuit has, without any analysis of this issue, affirmed a § 1014 conviction based upon a pro forma financial statement submitted to a savings and loan institution. See United States v. Smith, 891 F.2d 703, 708 (9th Cir.1989). We acknowledge that a hypothetical assertion clearly labeled as such cannot be held to the same standard of rectitude as a statement of pure historical fact. One who seeks to predict the future must be allowed some room for error. A bank that knowingly accepts a reasonable, good-faith, but ultimately erroneous, prognostication is guilty perhaps of poor business judgment, but is not the victim of a crime. We cannot, however, agree that, as a matter of law, affixing the label “pro forma” or “hypothetical” to a financial statement immunizes an' individual from criminal prosecution. It would be absurd to allow an artful financier to circumvent the scope of § 1014 by employing such a simple subterfuge: an unscrupulous businessman could run wildly inflated “pro for-ma” figures by overly-credulous banks and S & Ls without any fear of criminal liability. To attach such force to a label would eviscerate the statute, and we refuse to ascribe such an intent to Congress in the absence of evidence far more compelling than any presented by the Defendants here. Thus, some allegedly hypothetical representations must qualify as statements of fact within the meaning of § 1014. There is, as noted above, apparently no case that analyzes this precise question. Ranging farther afield, the most cogent analysis of a related question — the criminal liability under 18 U.S.C. § 1001 (the generic “false statement” statute) of accountants for the submission of an allegedly false audit opinion letter — comes from Judge Friendly in United States v. Simon, 425 F.2d 796, 805-06 (2d Cir.1969), cert. denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970). In Simon, the court announced a two-part test for falsehood that recognized the often-fuzzy character of fact (and truth). First, did the financial statement taken as a whole “ ‘fairly present[ ]’ ” the financial condition of the company and accurately report the relevant operations of the company? If not, were the inaccuracies presented in good faith? A negative answer to both questions would support a finding of criminal liability. See 425 F.2d at 805-06. This test generally accords with the “reasonableness” standard used in civil litigation to judge the truth of hypothetical financial statements. See, e.g., In re Worlds of Wonder Sec. Litig., 35 F.3d 1407, 1413-15 (9th Cir.1994) (collecting cases which hold that prospective or hypothetical financial statements can, if based upon unreasonable assumptions, be materially false so as to give rise to civil liability), cert. denied, — U.S. -, 116 S.Ct. 277, 133 L.Ed.2d 197 (1995). Were it necessary for us to explore the intricacies of the falsehoods conceivably attributable to hypothetical representations, we would be inclined to adopt Judge Friendly’s test. A good-faith prediction, which fairly and accurately discloses both its underlying assumptions and the actual financial eondition(s) of the relevant players, does not merit criminal sanction. We see no need to conduct such an in-depth inquiry, however, in light of our broader conclusion that the labeling of a financial submission as a hypothetical, a pro forma, or an assumption does not of itself forestall criminal liability. Notwithstanding the care with which the Defendants prepared the June 28 financial statement, the record contains ample evidence that the June 28 financial package makes certain factual assertions that could have been found false by a reasonable jury. As noted above, the approval of the loan hinged upon the submission of balance sheet that indicated a net worth for Trafalgar of $45 million. Thus, the balance sheet, with its accompanying assumptions,' constituted the heart of the June 28 package. The balance sheet itself was plainly labeled as a “PROFORMA [sic]”; the assumptions were likewise plainly identified as such. The third assumption contains virtually all of the material financial information and is the only one which merits consideration here: The proforma [sic] investment portfolio includes the following investments which have closed as of June 28,1988: (a) Paperulers, Inc. $ 3,000,000 (b) Geothermal Development Corp. 5,000,000 (c) Star-Glo. Corporation 2,000,000 (d) Detroit Body Products 2,000,000 (e) Old American Capital 4,000,000 (f) Circle C Ranch 71,000,000 (g) Stephen Moses Interests Mortgage Receivable 12,000,000 (h) Tennessee Resources, Ltd. 15,000,000 Gross Value 114,000,000 Reserves (32,000,000) $82,000,000 Sarno Appendix (Case No. 93-50859) Vol. II, Tab M, at 10. When read in the light of the other evidence in the record, we conclude that this so-called assumption contains sufficient factual misrepreséntations to support the jury’s verdict. It must be noted, first of all, that the clause “which have closed as of June 28, 1988” need not be taken as a hypothetical statement at all. The Defendants could easily have stated (as an assumption), “The investments included in this investment portfolio have closed as of June 28.” They did not do so. As written, a perfectly sensible (and, indeed, the preferred grammatical) reading could interpret the rather strained syntax to mean that the investments have in fact closed but their inclusion in the portfolio or the values attributed to them remain hypothetical. The conviction need not rest on grammar, however. The record contains abundant evidence that the shareholders of Paperulers, Star-Glo, and Detroit Body Products had in fact rejected the proposed stock swaps prior to June 28, 1988. Credible representatives of each of these companies so testified at trial. This rejection was known as a matter of fact both to Mr. Nash (who was a sizable stockholder in each company) and to Mr. Sarno (who made the initial overtures to the three companies). It is one thing to make an assumption (even an unreasonable assumption) in the absence of knowledge; it is quite another to put forth as assumptions those conditions that are known to be contrary to fact. It seems quite obvious that the latter type of “assumption” falsely represents as possible (“the deal may go through”) that which is known to be false (“the .deal has been rejected and cannot occur”). Those portions of the third assumption pertaining to Paperulers, Star-Glo, and Detroit Body Products therefore qualify as “false statements” within the meaning of § 1014. Second, and of greater significance, the first page of the June 28 financial package contains the following language: “[T]he Company will warrant that, its consolidated net worth as calculated under generally accepted accounting practices will not be less than three times total debt outstanding.” Gov’t Nash Appendix Vol. I, at 113. This language necessarily informs the so-called assumptions that follow by defining as the permissible domain of possible assumptions those statements (hypothetical or not) which accord with GAAP. To then proffer an assumption that falls outside the bounds set by GAAP is itself a false representation of the nature of the assumption that would necessarily mislead and deceive the unwary recipient. Thus, to focus upon the most significant of assumptions contained in the June 28 package, the value ascribed to the Circle C must have some mooring in GAAP irrespective of the substantive merit of the number itself. The record, however, is replete with evidence that the Circle C transaction did not adhere to GAAP and that the Defendants knew that such was the case. A number of witnesses testified that GAAP require a buyer to record the value of an asset at no more than purchase price; Defendant Sarno admits as much in his reply brief, see Sarno Reply Br. at 18. The Defendants attempted to circumvent this constraint by first passing the Circle C through a corporation controlled by Mr. Knapp — thereby setting up an intermediate purchaser from whom Trafalgar Capital could “buy” an extraordinarily over-priced asset with stock of dubious pedigree. This elevation of form over substance, however, itself fails to meet the standards of GAAP. Mr. Schumann, a CPA who worked with Messrs. Sarno and Knapp on the preparation of the June 28 submission, so testified (under a grant of immunity). Moreover, the evidence adduced at trial easily supports the conclusion that the defendants themselves realized that the artifice underlying the June 28 submission was insufficient: how else to explain the rather elaborate measures taken in July to insert Nepenthe retroactively into the Circle C deal in lieu of TIOT? Mr. Morgan, the owner of Nepenthe, testified that Mr. Sarno had told him that the substitution of an independent corporation for TIOT was necessary to placate the accountants. In short, having warranted that their “assumptions” were in accord with GAAP, the Defendants were by bound by this self-imposed limit upon their financial creativity. A rational jury could easily find from this record that the Defendants failed to abide by GAAP. The statement that the assumptions comported with GAAP was therefore false. Hence, the claim that no false statement was made by the June 28 prospectus is without merit. II. Propriety of the Jury Instructions A. Refusal to Instruct the Jury on the Legal Meaning and Impact of the Term “Pro Forma” The Defendants submitted a number of proposed jury instructions that sought to define the nature of a “pro forma” financial statement vis-a-vis a “false statement” charge. The district court rejected each of the proposed definitions, reasoning that the instructions offered by the Defendants were both “unnecessary” and “argumentative”: “This court believed that the evidence and arguments could more than adequately allow the jury to understand the factual and legal issues associated with the alleged falsity of the pro-forma financial statements.” Knapp Appendix Vol. II, Tab J, at 4. It is settled law that “ ‘[a] defendant is entitled to have the judge instruct the jury on his theory of the case, provided that it is supported by law and has some foundation in the evidence.’” United States v. Dees, 34 F.3d 838, 842 (9th Cir.1994) (quoting United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990)); United States v. Zuniga, 6 F.3d 569, 570 (9th Cir.1993). A failure to instruct a jury upon a legally and factually cognizable defense is not subject to harmless error analysis. United States v. Morton, 999 F.2d 435, 437 (9th Cir.1993); United States v. Escobar de Bright, 742 F.2d 1196, 1201-02 (9th Cir.1984). We may nonetheless affirm the refusal to give an otherwise proper “theory of the defense” instruction if the instructions actually given, taken as a whole, adequately encompass the defendant’s theory. See Dees, 34 F.3d at 842. We review de novo the legal adequacy of the instructions actually given by the district court. See United States v. Duran, 59 F.3d 938, 940-41 (9th Cir.1995); United States v. Taren-Palma, 997 F.2d 525, 530 (9th Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1648, 128 L.Ed.2d 368 (1994). However, the language of the instructions given by the district court need not conform to the formulation proposed by the defendant so long as it “fairly and adequately embod[ies] the relevant law regarding the issues presented.” United States v. Marsh, 26 F.3d 1496, 1502 (9th Cir.1994). We therefore review for an abuse of discretion the form in which the district court has expressed the defendant’s theory of the case. See United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir.1991); United States v. Kessi, 868 F.2d 1097, 1101 (9th Cir.1989). We likewise evaluate the district court’s determination of the factual basis for a requested instruction under an abuse of discretion standard. We agree with, the district court that the requested instructions were either unduly argumentative or unnecessary because they were adequately subsumed by the instructions given to the jury. “[A] court is not required to accept a proposed instruction which is manifestly intended to influence the jury towards accepting the evidence of the defendant as against that of the prosecution.” United States v. Hall, 552 F.2d 273, 275 (9th Cir.1977); see also United States v. Felix-Gutierrez, 940 F.2d 1200, 1211 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 2332, 124 L.Ed.2d 244 (1993). The first contested instruction — the definition of “projection” requested by Messrs. Sarno and Knapp — would have done just that. In suggesting that the June 28 package would “not ordinarily” be considered a factual assertion, the proposed instruction would itself have unduly advanced the Defendants’ interpretation of the evidence. A defendant may not draw upon the right to present a “theory of the case” to compel a certain resolution to a disputed question of fact. In any event, we concur with the district court’s conclusion that no precise definition of “projection” — a word that is not a legal term of art — -was necessary given the extensive treatment accorded the issue by both sides at trial. The other requested instructions favor the Defendants more strongly still. The second instruction advanced by Mr. Sarno declares that “the assumptions to a pro for-ma statement are not themselves statement [sic] of fact which can form the basis of a false statement within the meaning of the offenses charged.” Sarno Appendix, (Case No. 93-50859) Vol. II, Tab L, at 2. We have already rejected the proposition that a pro forma label is dispositive of the issue of criminal liability under § 1014. We have, furthermore, indicated that a rational jury could have found that the June 28 financial package made factual assertions. Mr. Sar-no’s proposed instruction, in contrast, would have (wrongly) precluded such a finding as a matter of law and would, in effect, have granted him judgment as a matter of law. The district court did not err in refusing to give such a legally mistaken instruction. Mr. Knapp’s second requested instruction, which would have compelled an acquittal had the jury found that the financial documents were prepared in accordance with GAAP, likewise misstates the applicable law. Conformity with GAAP, while persuasive evidence of a lack of falsehood, does not settle the issue. See United States v. Weiner, 578 F.2d 757, 785-86 (9th Cir.) (analyzing “false statement” convictions under various securities laws), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); see also United States v. Simon, 425 F.2d 796, 805 (2d Cir.1969), cert. denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970). While it might have been preferable for the district court to have instructed the jury that conformity with GAAP was evidence favorable to the Defendants, the form of jury instructions is left to the discretion of the district court. The district court did not abuse its discretion in refusing this requested instruction. Irrespective of the propriety of the proposed instructions, the Defendants also argue that the district court should have given the jury some guidance upon the concept of “pro forma” financial statements. Some such instruction might well have been helpful. However, as noted above, the precise formulation of jury instructions lies within the discretion of the district court. See United States v. Joetzki 952 F.2d 1090, 1095 (9th Cir.1991) (“Even imperfect jury instructions will not form the basis for reversing a conviction unless they constitute an abuse of discretion.”); Stoker v. United States, 587 F.2d 438, 440 (9th Cir.1978) (stating that jury instructions must not mislead or be “inadequate to guide the jury’s deliberations”). The district court, concluding that the extensive discussion at trial of the hypothetical character of a “pro forma” statement obviated the need to educate the jury through an instruction, gave instead a standard definition of a false statement: “A statement is a representation of fact. A statement or representation is ‘false’ if it was untrue when made and was then known to be untrue by the person making it or causing it to be made.” Gov’t Nash Appendix Vol. II, at 548. This somewhat terse language may well have been “imperfect”; however, our review of the trial transcript indicates that the Defendants ably took advantage of their many opportunities to argue the nuances of predictive accounting to the jury. We therefore conclude that the district court committed no error in rejecting the Defendants’ proposed instructions. The Defendants make much of the fact that the trial court declined to give the jury supplemental instruction on the “pro forma” concept despite the jury’s request for such information. As the record makes plain, however, the request pertained only to the count arising from the June 22 financial package; verdicts were reached on each of the other counts without difficulty. None of the defendants was convicted of crimes associated with the June 22 package. Any error was therefore harmless. United States v. Marsh, 26 F.3d 1496, 1502 (9th Cir.1994). Alternatively, the decision to issue additional instructions rests within the discretion of the district court. United States v. Hayes, 794 F.2d 1348, 1352 (9th Cir.1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987). In light of the limited nature of the additional requested instructions, the refusal at issue here did not abuse that discretion, B. Refusal to Instruct the Jury on the Meaning of the Term “Closed” The Defendants submitted the following definition of the term “closed”: There is no universal definition of the term “had closed.” In this case, the phrase “had closed” is used to describe the completion of certain business transactions. A business transaction is considered “closed” when all necessary steps to make that transaction complete have taken place. The steps needed to make a transaction complete will depend on the transaction being considered and the understanding between the parties to the agreement. Knapp Appendix Vol. I, Tab 141, at 4. The district court found the proposed instruction “unnecessary” and “confusing” and declined to give it. The court reasoned that “[t]he issue of whether the substance and status of the relevant financial transactions were honestly described to Western in connection -with the loan application was a question of fact for the jury ... [that] did not hinge on any particular determination of whether the disputed transactions had formally ‘closed’....” Knapp Appendix Vol. II, Tab J, at 5. We agree that this instruction was both unnecessary and argumentative. The extent to which the stock swaps with Paperulers, Detroit Body Products, and Star-Glo had “closed” was vehemently contested by the parties. The Defendants consistently adhered to a narrow “technical” definition of “closed” that emphasized the fact that Joseph Nash had signed letters of intent to consummate the swaps. The Government in turn argued that, paper trails notwithstanding, the swaps were phantom transactions which faded away as soon as the loan from Western funded. We cannot say that either position was necessarily correct as a matter of law, and each found some support in the evidence presented at trial. The definition of “closed” suggested by the Defendants framed the question to their advantage. The district court preferred not to so skew the presentation of issues to the jury, and instead chose to allow the parties to stand on their arguments and evidence. This decision was not in error. C. Refusal to Instruct the Jury on the Defense of “Good Faith Reliance’^ Mr. Knapp and Mr. Nash claim that the district court erroneously refused to instruct the jury on the defense of “good faith reliance.” This argument is foreclosed by our precedents. Notwithstanding the normal rules governing “theory of defense” requests, the Ninth Circuit has held that “the failure to give an instruction on a ‘good faith’ defense is not fatal so long as the court clearly instructed the jury as to the necessity of ‘specific intent’ as an element of a crime.” United States v. Solomon, 825 F.2d 1292, 1297 (9th Cir.1987), cert. denied, 484 U.S. 1046, 108 S.Ct. 782, 98 L.Ed.2d 868 (1988); see also United States v. Dorotich, 900 F.2d 192, 193-94 (9th Cir.1990) (quoting and reaffirming Solomon). Mr. Knapp does not dispute that the district court properly instructed the jury that a finding of specific intent was necessary to sustain a conviction under § 1014. Gov’t Nash Appendix Vol. II, at 549. Mr. Knapp contends that Solomon and Dorotich are limited to cases of tax fraud. While it is true that Solomon and Dorotich arose in that context, the fundamental question prompted by the defense remains the same irrespective of the applicable statute: Does good faith reliance demonstrate a lack of specific intent to commit the actions punished by the statute? We see no reason to apply a different rule here and therefore affirm the district court’s decision to give a “specific intent” instruction in lieu of that requested by Mr. Knapp, Alternatively, the district court, while recognizing the very low evidentiary threshold that must be met by a “theory of defense” request, nonetheless found that Mr. Knapp had failed to clear that threshold. We review for abuse of discretion a district court’s factual findings vis-a-vis a “theory of the case” instruction. See United States v. Taren-Palma, 997 F.2d 525, 530 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1648, 128 L.Ed.2d 368 (1994). The quantum of evidence sufficient to support a “theory of the case” instruction is slight indeed. See United States v. Zuniga, 6 F.3d 569, 570 (9th Cir.1993) (“ ‘some foundation in the evidence’ ”); United States v. Morton, 999 F.2d 435, 439 (9th Cir.1993) (“more than a scintilla”). This standard notwithstanding, the record suggests that the district court did not abuse its discretion. Mr. Knapp’s protestations to the contrary, virtually no evidence was adduced at trial that suggests his “good faith reliance” on fully informed and independent advisors. The instruction was properly rejected. Mr. Nash also appeals the district court’s decision not to instruct the jury on his proposed reliance defense. While it must be admitted that good faith is generally raised by the client of a CPA or other professional who claims to have relied on the advice of a scoundrel, there is no analytic reason to treat the defense differently when it is raised by a CPA who claims to have relied upon GAAP and data provided by an unscrupulous client. In either instance, the Defendant attempts to refute intent by advancing good faith as a shield. The district court’s decision to instruct the jury on specific intent therefore obviated the proposed reliance instruction. III. Alleged Evidentiary Errors We review the district court’s evidentiary rulings for abuse of discretion. If nonconstitutional error has been committed, we reverse unless it is “more probable than not that the erroneous admission did not affect the jury’s verdict.” United States v. Hill, 953 F.2d 452, 458 (9th Cir.1991). A. Exclusion of Evidence of Complicity on the Part of Bank Officials in the Approval of the Loan The government acknowledges that Mr. Gary Driggs, the President of Western, conspired with Mr. Knapp to orchestrate the loan to Trafalgar Capital. Western was under pressure from federal officials to rid itself of certain bad debts. The record indicates that a substantial portion of the money loaned to Western was in fact used by a Knapp corporation to purchase properties from Western. Messrs. Knapp and Sarno assert that the evidence of Mr. Driggs’s complicity tends to rebut the possibility that the June 28 statement and the audited statement had the capacity to influence the approval of the loan. Proof of capacity to influence, they correctly note, is an essential element of the Government’s ease under § 1014. United States v. Hutchison, 22 F.3d 846, 851 (9th Cir.1993). Therefore, they argue, exclusion of this evidence impermissibly constrained their ability to make “the strongest case they are able to marshal in their defense.” United States v. Thomas, 32 F.3d 418, 421 (9th Cir.1994). We have previously indicated that proof of a bank’s reliance is not an element of § 1014 and, therefore that the complicity of bank officers is no defense to § 1014. See United States v. Blumenthal, 945 F.2d 280, 282-83 (9th Cir.1991); United States v. Wilcox, 919 F.2d 109, 110-12 (9th Cir.1990). Messrs. Knapp and Sarno, of course, do not argue that the complicity of Mr. Driggs absolves their actions of guilt. Rather, they contend that an inference of capacity to influence would normally follow from the approval of a loan; that the absence of actual reliance by Western undermines this otherwise logical conclusion; and they were entitled to present the complicity of Mr. Driggs as evidence of lack of capacity. We recognize that the actions of Mr. Driggs may have had some relevance to the jury’s determination of the capacity of the financial submissions to influence Western. We cannot, however, conclude that the district court abused its discretion in refusing to allow this evidence to be heard by the jury. Evidence of a “grand conspiracy” might well have (as the district court here concluded) induced confusion in the minds of the jury and distracted them from the true issue— whether the financial documents had the capacity to influence a disinterested bank; or S & L. Alternatively, we conclude that any error was harmless because the Defendants’ arguments rest upon a rather dubious foundation. The undisputed testimony at trial established that Mr. Driggs could not by himself approve a loan; while we acknowledge that, as President of Western, Mr. Driggs likely wielded a great deal of influence, the equation of Mr. Driggs with Western (as the Defendants seem to do) is an assumption of questionable merit. Furthermore, the record indicates that the loan would not, under any circumstances, have gone through had the Defendants been unable to submit documents credibly establishing a net paper worth of $45 million. Indeed, the “grand conspiracy” with Mr. Driggs hinged upon such documentation; the extension of a loan to a corporation that was on paper not worthy of credit would hardly have aided Mr. Driggs in his efforts to placate federal regulators. These circumstances do not support a conclusion that Mr. Driggs forced Western to base a loan upon documents lacking adequate substantiation. It is hardly apparent, therefore, that evidence of the complicity of Mr. Driggs would have aided the Defendants’ case at all. B. Exclusion of Three Pages of Exhibit 142 The Defendants claim that the district court erroneously prohibited them from displaying redacted portions of Exhibit 142 during closing arguments. Exhibit 142 comprises two documents prepared by Mr. Brian O’Boyle, a loan officer of Western who was involved with the fateful loan to Trafalgar: first, a three page memo written in June of 1989 that summarizes the events surrounding the loan; and second, a one page diagram reflecting Mr. O’Boyle’s understanding of the Circle C/TIOT/Trafalgar Capital step-up deal that was made during the June 30 meeting with Mr. O’Boyle, Mr. Sarno, and Trafalgar officials. During closing argument, defense counsel attempted to refer to a blow-up of page one of Exhibit 142. The Government objected, and the district court ruled that pages one through three (corresponding to the after-the-fact memorandum written by Mr. Boyle) had been excluded from evidence. The court indicated that defense counsel remained free to refer directly to Mr. O’Boyle’s testimony. Somewhat flustered, defense counsel moved on and never revisited Mr. O’Boyle’s testimony to any significant extent. Much confusion reigns about what pages of Exhibit 142 were taken out of evidence at what point in time. The Defendants claim that only pages two and three (of the four-page exhibit) were ever explicitly excluded. The Government, agreeing that pages two and three were removed from evidence, asserts that page one had also been excluded at an earlier point in time. The transcript of the trial does not clearly reflect what happened, although the reporter’s log indicates that all three pages were removed from evidence. The most revealing discussion among the parties of what may or may not have transpired took place roughly five months after the trial (during resolution of post-trial motions) and was based primarily upon the memories of the various attorneys; it is thus of little aid. We need not resolve this dispute because we conclude that whatever error may have occurred was harmless. The excluded portions of Exhibit 142 referred to Mr. O’Boyle’s evaluation of the worth of the June 22 and June 28 financial statements, indicated that Mr. Driggs had insisted that the loan be funded so as to help Western with the regulators, and described the June 30 meeting at which Trafalgar officials and Mr. Sarno explained the step-up to Mr. O’Boyle. We have already concluded that it lay within the district court’s discretion to exclude evidence of the conspiracy between Mr. Driggs and the Defendants. The Defendants admit that Mr. O’Boyle was open to cross-examination on the remaining topics covered by Exhibit 142; we are unable to see that any substantial additional benefit could have been gained from a memorandum written one year after the relevant events. An inquiry into Mr. O’Boyle’s opinion as to the sufficiency of the financial submission was best undertaken during cross-examination— not by way of the introduction of a naked statement devoid of context and written long after the events in question. Similarly, the Defendants had ample opportunity to elicit from Mr. O’Boyle the details of the June 30 meeting; had they done so, they could have referred directly to this testimony during closing arguments. C. Admission of Evidence as to Trafalgar’s Financial Condition Prior to trial, the district court ruled that evidence of Trafalgar’s poor financial condition would not be admissible. This ruling was not strictly enforced, however (or perhaps was rescinded; the record is again unclear), and evidence of Trafalgar’s penury was introduced, primarily through the direct testimony of Trafalgar’s bookkeeper. The Defendants renew their objections made at trial. The probative value of evidence of financial need is, in general, questionable. It is hardly apparent that the rich seek money with less ardor or more scruples than the poor. We have recognized, however, that evidence of wealth (or lack thereof) may be relevant to certain crimes. See, e.g., United States v. Feldman, 788 F.2d 544, 557 (9th Cir.1986) (bank robbery), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987); United States v. Saniti, 604 F.2d 603, 604 (9th Cir.) (same), cert. denied, 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 384 (1979). The Government suggests, not altogether unreasonably, that a violation of § 1014 can be analogized to bank robbery for this purpose. We need not resolve this issue today because we hold that whatever error may have occurred was harmless. We do not think that Trafalgar’s inability to pay certain bills could possibly have prejudiced the Defendants in the mind of the jury. Moreover, this record is not lacking for other evidence indicating that Mr. Knapp was driven primarily by his overweening ambitions and not by his short-term cash flow difficulties. D. Exclusion of the Price Waterhouse Evidence Mr. Nash elicited testimony from Mr. A.P. Harwood, an accountant with Price Waterhouse, that Price Waterhouse had prepared the 1988 tax returns for Trafalgar and had accepted Trafalgar’s representations as to its income and assets. The district court, after confirming that Price Waterhouse had neither conducted an independent investigation of the Trafalgar financial information nor done a formal audit of Trafalgar, struck the testimony as irrelevant. Mr. Nash did not object to the court’s action at the time. See Gov’t Nash Appendix Vol. Ill, at 2190. We therefore review for plain error, and disturb the verdict “only if, viewing the error in the context of the entire record, the impropriety ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings, or where failing to reverse a conviction would amount to a miscarriage of justice.’ ” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993) (quoting United States v. Molina, 934 F.2d 1440, 1446 (9th Cir.1991)). Mr. Nash now asserts that Mr. Har-wood’s testimony was relevant because (1) Price Waterhouse, which risked criminal penalties by relying upon Trafalgar’s representations, found those representations sufficiently trustworthy for its purposes; and (2) the fact that Price Waterhouse accepted Trafalgar’s data tended to rebut the Government’s argument that no “Big Eight” accounting firm would have “signed off’ on an audit of Trafalgar. Mr. Nash may well be correct that his present argument demonstrates that Mr. Harwood’s testimony was of some slight relevance. However, he failed to make this argument to the district court at the time the testimony was stricken from the record; he failed even to object to the district court’s action; and he has failed on appeal to demonstrate that the district court’s decision strayed so far from the path as to constitute plain error. We therefore reject his contentions. IV. Access to the Courts and Other 6th Amendment Rights Mr. Nash, who has graduated from law school (although, apparently, he has not been admitted to a state bar), chose to represent himself at trial. His efforts at self-representation were, however, somewhat encumbered by his status at the time of this trial as a prison inmate serving out a sentence under a prior conviction for falsifying tax documents. He claims here that the resulting constraints upon his time and actions deprived him of his Sixth Amendment right to defend himself. We agree that the Sixth Amendment demands that a pro se defendant who is incarcerated be afforded reasonable access to “law books, witnesses, or other tools to prepare a defense.” Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985); see also United States v. Robinson, 913 F.2d 712, 717 (9th Cir.1990), cert. denied, 498 U.S. 1104, 111 S.Ct. 1006, 112 L.Ed.2d 1089 (1991). The right of access is not unlimited, but must be balanced against the legitimate security needs or resource constraints of the prison. See Robinson, 913 F.2d at 717; Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 858 (9th Cir.1985); Milton, 767 F.2d at 1446-47. We turn now to Mr. Nash’s specific allegations of deprivation. A. Restricted Access to the Prison Law Library Mr. Nash first contends that he was denied adequate access to his institution’s law library. The record indicates that in the months prior to trial he was allowed to use the library for roughly 120 to 140 hours. After trial began, Mr. Nash had access to the library for approximately five hours per week. After weighing the other legal resources available to Mr. Nash, we conclude that Mr. Nash was given adequate library time prior to trial to fashion his defense. We note, first of all, that Mr. Nash was not a lay person with no knowledge of the law, but had in fact graduated from law school. He therefore had no need to learn the essentials of procedure or criminal law. Furthermore, the central legal issue of the case — whether predictive statements or statements of opinion could violate 18 U.S.C. § 1014 — was common to the defenses presented by all three of the defendants. With respect to this issue, therefore, Mr. Nash was able to draw upon the efforts of his co-defendants’ counsel. The remaining issues relevant to Mr. Nash were not, as the district court noted, legal in nature, but turned largely on the facts of the case, which were matters within Mr. Nash’s personal knowledge. Lastly, Mr. Nash had access to the skills and knowledge of an attorney appointed to assist him in the preparation of his defense and the filing of documents. We are more troubled by the amount of library time allotted Mr. Nash during the trial. The prison library, apparently, is typically open only during the day; thus, a defendant who spends his or her day in court has little opportunity to visit the library during normal operating hours. This situation is hardly ideal. Nonetheless, while a prison must take steps to provide incarcerated defendants with reasonable access to legal materials, the rights of a pro se defendant must be balanced against institutional resource constraints. See Robinson, 913 F.2d at 717. Under all of the circumstances of this case, we are not prepared to hold that the access afforded Mr. Nash was unreasonably limited. B. Access to Witnesses Mr. Nash next asserts that his access to witnesses (either in person or over the phone) was impermissibly restricted. This assertion is foreclosed by the district court’s factual findings. See Gov’t Nash Appendix Vol. II, at 516-17. The district court found that (1) Mr. Nash could receive visits from witnesses upon the provision of forty-eight hours notice and certain minimal personal information; (2) Mr. Nash did not submit a visitor list until June 19, 1993, four days after the beginning of the trial; following that submission, approval of visitor requests followed rapidly; (3) Mr. Nash could make monitored phone calls at all times, and, after May 25, could make two unmonitored calls per day; he made no such calls; and (4) Mr. Nash had access to co-defendant Samo at pretrial hearings and during their joint trial. While Mr. Nash disputes the accuracy of these findings, he has not produced sufficient evidence for us to find them to be clearly erroneous. Mr. Nash does credibly argue that his ability to make unmonitored telephone calls during trial was severely limited because he was at court during the hours in which unmonitored phone calls were allowed. After he brought this conflict to the court’s attention (on June 22), the matter was remedied by June 25 (Mr. Nash was allowed to use the courthouse phone at lunch). This admitted restriction on his access to the telephone does not therefore seem so unreasonable as to merit reversal. C. Limitations on Access to Discovery Materials The Government gathered some 250,000 pages of documents in preparation for this trial. Mr. Nash was allowed to review these documents and mark those that were relevant to his defense; the marked items were then copied for Mr. Nash at government expense. Roughly 6000 additional pages were identified by the Government and provided by the Government before trial. It is, however, undisputed that Mr. Nash was given only approximately twenty hours in which to inspect the 250,000 pages of material. He argues that this period of time was insufficient. While we agree that Mr. Nash’s access to discovery materials was hardly optimal, we conclude that the limitations imposed on him were reasonable. The Government sensibly attempted to accommodate Mr. Nash’s status by copying and identifying documents for him. While the time during which Mr. Nash could survey the discovery materials was brief, the district court found that the documents relevant to Mr. Nash’s case composed only a small fraction of the 250,000 pages collected by the Government and, furthermore, were readily identifiable. Mr. Nash points to no evidence that suggests that these findings were clearly erroneous. We note, moreover, that Mr. Nash’s access to the documents was constrained, at least in part, by the needs of his co-defendants. We hold therefore that the time provided Mr. Nash was sufficient under the circumstances. Mr. Nash also contends that he was denied access to relevant personal papers (specifically, personal address books and day calendars) and that the Government failed to provide him with certain requested documents. The district court rejected the first of these claims on factual grounds, expressly declining to believe that Mr. Nash could not fit his address book and day calendar into the two boxes of material he was allowed in jail. In any event, Mr. Nash had the option to send his personal papers to his wife; he chose instead to leave his personal papers in storage at another facility. Mr. Nash does not point to any evidence that suggests that there findings are clearly erroneous, and they refute the claim at hand. The Government concedes that Mr. Nash never received two of the documents which he marked for copying. There is absolutely no evidence to support the conclusion that this omission was purposeful. Furthermore, the district court found that Mr. Nash never brought the omission to the court’s attention during trial or otherwise sought to obtain the documents in a timely manner. Under these circumstances, the failure to deliver the documents was unfortunate but does not require reversal. Y. Denial of the Request for a Continuance We review the denial of a motion to continue for abuse of discretion. United States v. Robinson, 967 F.2d 287, 291 (9th Cir.1992). We will find an abuse of discretion only where the denial was “arbitrary or unreasonable.” United States v. Torres- Rodriguez, 930 F.2d 1375, 1383 (9th Cir.1991). We judge the denial of a motion to continue under the four-part test set forth in United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.1985). Mr. Nash has failed to adduce any evidence that would support a conclusion that the district court abused its discretion in refusing to postpone the trial. Mr. Nash’s claims can be reduced to general allegations that a continuance would have allowed him to prepare a better defense. While we acknowledge that additional time can often be put to good use, such general allegations are insufficient to allow us to find an abuse of discretion. VI. Constructive Amendment of the Indictment Mr. Knapp contends that the indictment was constructively amended at trial in violation of his Fifth Amendment rights. See Stirone v. United States, 361 U.S. 212, 215-19, 80 S.Ct. 270, 272-74, 4 L.Ed.2d 252 (1960); United States v. Homick, 964 F.2d 899, 907 (9th Cir.1992); United States v. Pisello, 877 F.2d 762, 765-66 (9th Cir.1989); United States v. Von Stoll, 726 F.2d 584, 586-87 (9th Cir.1984). “An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them.” In addition, courts have found constructive amendments where the crime charged was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved. Von Stoll, 726 F.2d at 586 (quoting United States v. Cusmano, 659 F.2d 714, 718 (6th Cir.1981)). Mr. Knapp argues, in effect, that a constructive amendment occurred because the evidence presented at trial could have supported a conviction for bank fraud, a crime for which Mr. Knapp was not indicted. This contention is meritless. This is not an instance where the “crime charged was substantially altered at trial,” see id., but is rather a case where the crime proved at trial was precisely that charged in the indictment. The record indicates that the trial evidence does not differ materially from the allegations made in the indictment, not does the evidence support a conviction under some other statute in lieu of a conviction under § 1014. At most, it might be said that the evidence supports a conviction for violations of both of § 1014 and of other statutes. We note, however, that the Defendants were indicted for violations of § 1014 and that the district court instructed the jury only upon those crimes charged in the indictment. The Defendants may well have been guilty of bank fraud. That fact, however, does not require us to find an unconstitutional constructive amendment where the record is virtually devoid of any indication that such amendment occurred and where the record contains ample evidence to support a conviction consistent with the indictment. VII. Refusal to Read the Indictment to the Jury This argument borders on the sanctionable. The record plainly reflects the fact that the Defendants, far from objecting to the district court’s decision in this regard, applauded that result. See Gov’t Knapp/Sarno Appendix (Case Nos. 93-50859 & 93-50860) Vol. I, at 4 (“I hope not. I continually object to [the reading of the indictment to the jury]. I don’t think there is a rule that requires that.” (statement by Mr. Sarno’s counsel)); id. at 5 (“I think that[ ] [the district court’s decision is] more than acceptable and quite common in my experience.” (statement by Mr. Knapp’s counsel)). The Defendants cannot now object in good faith or in good conscience. VIII. Sufficiency of the Evidence Messrs. Sarno and Nash each challenge the sufficiency of the evidence sustaining their convictions. Under the familiar standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh’g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979),, the evidence supporting a conviction will be deemed sufficient if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2789. We favor the Government with “all reasonable inferences which may be drawn” from the evidence. United States v. Cuevas, 847 F.2d 1417, 1421 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1989). Neither Mr. Sarno nor Mr. Nash meets this stringent standard. A. Argument of Mr. Sarno As discussed earlier, the record contains more than ample evidence from which a jury could conclude that (1) the June 28 financial statement contained representations of fact; (2) the stock swaps had not closed; (3) the value of the Circle C was exaggerated in a fashion not permitted by GAAP; and (4) . the false representations in the June 28 submission were material to the funding of the loan. Knowledge and intent can easily be inferred from the actions taken by the Defendants first to “build” Trafalgar’s balance sheet and then to disguise their misdeeds. No more is required in this respect. Mr. Sarno also argues that (1) the audited financial statement was immaterial to the funding of the loan; and (2) he was, in any event, not responsible for any false statements made in the audit opinion letter. Neither assertion has any mooring to the evidence presented at trial. It is true that the bulk of the money was funded by Western prior to the receipt of the letter; it likewise must be acknowledged that the remaining money was provided almost simultaneously with the receipt of the audit. The loan agreement nonetheless required that the audit take place; Mr. O’Boyle, the Western official overseeing the Trafalgar loan, testified that the release of the final $2 million was contingent upon the result of the audit; and the Defendants’ own actions belie the importance of the audit. This evidence, while not overwhelming, suffices to sustain the verdict. Mr. Sarno’s remaining contention quite simply flies in the face of the trial testimony. Mr. Sarno structured the substitution of Nepenthe for TIOT; Mr. Sarno was instrumental in the creation of two false income entries for Trafalgar; Mr. Sarno worked with Mr. Nash to prepare audit footnotes that would, on paper at least, substantiate the fictions contained therein. Virtually no evidence exists from which the jury could infer Mr. Sarno’s innocence. The evidence was certainly sufficient to sustain the conviction. B. Argument of Mr. Nash Mr. Nash challenges virtually every element of the crimes of which he has been convicted. We address his claims in turn. 1. Were Representations of Fact Made by the Audit Opinion Letter? The essence of Mr. Nash’s argument is that an accountant’s opinion letter can never give rise to liability for “false statement.” This premise is simply incorrect and may be rejected out-of-hand. See United States v. Weiner, 578 F.2d 757, 785-86 (9th Cir.) (analyzing defenses to criminal liability for false statements in audits), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978); United States v. Simon, 425 F.2d 796, 805 (2d Cir.1969) (same), cert. denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970). Mr. Nash has likewise failed to demonstrate that the opinion letter prepared by him contained no representations that could be judged false. The audit letter made the following statements: <cWe have audited the accompanying combined balance sheet”; “[w]e conducted our audit in accordance with generally accepted auditing standards”; “[w]e believe that our audit provides a reasonable basis for our opinion”; “[i]n our opinion, the financial statements referred to above present fairly, in all material respects, [Trafalgar’s financial status] in conformity with generally accepted accounting principles.” Gov’t Nash Appendix Vol. I, at 128. Even the last of these statements, which is plainly labeled an “opinion,” could be considered “false” if the evidence were to show that Mr. Nash had issued the opinion letter with knowledge that GAAP had not been followed. The remaining statements are even more easily held to an objective standard of “falsehood.” Construing these statements in the light most favorable to the Government, a reasonable juror could have found them to be representations of fact within the meaning of 18 U.S.C. § 1014. 2.Was the Audit Materially Incomplete and Did Mr. Nash Have Knowledge of this Fact? Mr. Nash contends, first, that the audit was completed in conformity with GAAP, and, second, that he had no knowledge of any inaccur