Full opinion text
OPINION ROSENTHAL, District Judge: Five defendants appeal their convictions or sentences for selling unregistered securities. The defendants worked for telemarketing “boiler rooms” in California and Florida, soliciting investments in partnerships to finance the production and distribution of movies. The defendants promised potential investors that the investments would return swift and large profits, with little to no risk. Approximately 650 individuals — including unsophisticated people who could not afford the financial loss— invested over $23 million. Most of the investors lost it all. These appeals arise from two indictments issued in the Central District of California on June 15, 2011. The indictment in United States v. Daniel Toll et al., No. 11-cr-543-JFW, charged James Lloyd, who managed a boiler room in Los Angeles, California; telemarketers Paul Baker, David Nelson, and Albert Greenhouse; and eight others, all of whom worked through a California boiler room to sell partnership units in three movies produced (or supposed to be produced) by Cinamour Entertainment, LLC. The indictment in United States v. James Lloyd, No. 11-cr-542-JFW, charged Lloyd, who left Cinamour to manage a different boiler room in California, and Robert Keskemety, who managed a Florida boiler room, along with seven others, for selling partnership units in two movies. These movies were produced by Q Media Assets LLC, a company owned by the same person who owned Cinamour. Both indictments charged conspiracy, mail fraud, wire fraud, and securities fraud between 2001 and 2009. The two boiler room managers, James Lloyd and Robert Keskemety, were convicted after they pleaded guilty. They appeal only their sentences. Two Cinam-our telemarketers working in California, David Nelson and Paul Baker, and Albert Greenhouse, a Cinamour telemarketer working in Florida, were tried together. Nelson and Baker appeal their convictions and sentences. The only issue in the Greenhouse appeal is the sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The number of defendants, the lengthy period involved, and the type of conduct made this a difficult case for 'any trial court to resolve. The record shows that the district judge competently and fairly resolved many of the innumerable issues that arose in trial and at sentencing. The points on which we disagree with the district judge raise issues that are both complex and close. James Lloyd pleaded guilty to two counts of wire fraud and Robert Keskemety to one count of mail fraud. They appeal their sentences. We affirm Lloyd’s sentence, but we conclude that Keskemety’s sentence for managing the Florida telemarketing boiler room improperly included fraud losses from the California boiler room that Lloyd managed. We vacate Keskemety’s sentence and remand for re-sentencing. David Nelson and Paul Baker appeal both the convictions and sentences entered after the jury convicted each of one count of conspiracy to commit mail and wire fraud and to offer and sell unregistered securities, two counts each of mail and wire fraud, and two counts of offering and selling unregistered securities. We reverse Nelson’s conviction based on eviden-tiary rulings, vacate the sentence, and remand. We affirm Baker’s conviction due to the overwhelming evidence against him, making the evidentiary errors harmless, but we vacate Baker’s sentence and remand for resentencing because of an error in calculating the Guidelines sentence. Finally, Albert Greenhouse appeals the sentence he received after the jury convicted him of two counts of offering and selling unregistered securities. We find no error, and we affirm. BACKGROUND Glen Hartford, a film producer, founded Cinamour in 2000 to make and distribute independent films, and served as its chief executive officer and majority shareholder. Hartford used telemarketing to solicit money from individual investors to finance three movies: Forbidden Warrior, From Mexico with Love, and Red Water 12. These three movies are the basis of the United States v. Toll indictment. Cinamour began raising money for Forbidden Warrior in 2001 out of a telemarketing boiler room in Los Angeles, California. Lloyd and Baker were involved in the Forbidden Warrior fundraising. That movie was released in 2005 directly to video distribution and made about $500,000, a commercial failure of large proportions. From 2004 to 2007, Cinamour used telemarketing to solicit purchases of partnership units to finance From Mexico With Love. Cinamour raised approximately $14.2 million from 445 investors nationwide. From Mexico With Love grossed about $800,000 from a very limited theatrical release. The investors received no return on the money they sent. Lloyd, Baker, and Greenhouse were involved in soliciting investments in From Mexico With Love. In 2007, Cinamour began telemarketing sales of partnership units in Red Water. Cinamour raised approximately $2.8 million from approximately 100 victims nationwide but spent only $23,000 on making the movie. The investors lost everything. Baker and Nelson were involved in soliciting the investments in Red Water. In 2009, after an undercover investigation, the FBI raided Cinamour’s Los An-geles offices. Hartford committed suicide days after the raid. The indictment in United States v. Lloyd arose from telemarketed investments in two movies written, directed, and produced by a former Central Intelligence Agency officer, Michael D. Sellers. Sellers retained Joel Lee Craft, Jr., founder and chief executive officer of American Information Strategies, Inc., to help raise capital for the films, Eye of the Dolphin and Way of the Dolphin. Sellers worked with Craft to set up telemarketing boiler rooms, hiring Keskemety in Florida, and later, Lloyd in California, to manage them. In 2002, Sellers recruited Keskemety to establish and manage the Florida telemarketing office. The goal was to raise money for the two .Dolphin movies. In 2004, Keskemety began soliciting investments for Eye of the Dolphin. Sellers asked Craft to introduce him to other potential boiler-room managers. Through Craft, Sellers met Lloyd and hired him in 2007 to move from managing the Cinam-our telemarketing office in Los Angeles to managing an office in the same city to solicit investments in partnership units to finance Sellers’s films. Keskemety and Lloyd hired and paid the other telemarketers to raise money for the Dolphin films. When Lloyd began managing the Los Angeles boiler room for Sellers, he had been working for Cinamour for over four years soliciting money for Forbidden Warrior and From Mexico With Love. He brought the same marketing techniques to selling partnership units in Eye of the Dolphin and Way of the Dolphin. The California and Florida boiler rooms together raised $9.6 million from 264 investors for the two Dolphin movies. Both movies failed. The investors in the first movie, as a group, received only $370,656 of their initial investment. The investors in the second movie lost everything. The boiler rooms were similar. Less experienced telemarketers served as “fron-ters,” cold-calling potential investors from lists of leads and reading from scripts to pitch the investments. The scripts included assurances to prospective investors of quick and large profits with little to no risk. These promises, and the details supporting them, were false. If the cold-calls led to expressions of interest, “closers”— more experienced telemarketers — would follow up and try to get signed investment documents and a check to close the deal. “Reloaders” would induce some of those who had already invested to put in more. Many of the defendants had multiple roles, but each of the appellants worked as closers some of the time. Lloyd helped close investments in Forbidden Warrior and From Mexico with Love. Baker helped close investments in Forbidden Warrior, From Mexico with Love, and Red Water. Nelson helped close investments in Red Water. Greenhouse helped close investments in From Mexico with Love. Lloyd and Keskemety were closers for Eye of the Dolphin and Way of the Dolphin. Lloyd, Baker, Nelson, and Greenhouse also worked as “reloaders” on the Cinam-our films, targeting those who had already invested to persuade them to invest more. Reloaders participated in conference calls with these investors. The calls included telemarketers who pretended to be investors and enthusiastically agreed to commit more money. Lloyd also worked as a reloader on the two Dolphin films, but Keskemety did not. Most of the defendants asserted that they believed the leads they cold-called and persuaded to invest were suitable and accredited individuals who were sophisticated and financially able to risk losing the money. The trial testimony from and about the investors, as well as the information in the presentence reports, tell a different story. Many of the investors had no significant experience in investing and few had significant liquid assets. Many had or were about to retire. At the trial, some of the investors testified that they had told the fronters, the closers, and the reloaders about their limited investment experience, their limited resources, and their life situations. The investors repeatedly testified about the defendants’ assurances that the investments were risk free and would be returned with a profit within a short period. The investors briefly testified about the effects on them of losing the money. The scripts the telemarketers used varied depending on the movie they were pitching, but there were many common elements. In initial solicitation cold-calls, the fronters stated that: (1) there was little to no risk in the investment because there were presale distribution contracts for the movies, which guaranteed that the investors would recoup their investments and make a profit; (2) investors would quickly begin to receive returns because the movies were completed or nearing completion and, with the presales contracts, would be distributed in the near future; (3) films previously produced by the same company had yielded good returns for investors; (4) the money invested would be used to make, promote, and distribute the movies, not to pay for fundrais-ing, overhead expenses, or sales commissions; (5) the marketers earned little to no commissions; (6) investors would get their money back and more out of the movie proceeds before the promoters and sellers were paid; and (7) there was a time limit because the units would shortly become unavailable, requiring a quick commitment. These statements were affirmatively and materially false or omitted material information needed to make them true. The evidence presented at trial and recounted in the presentence reports showed that there were few or no guaranteed pre-sale distribution contracts and no prospects of obtaining them. While some of the movies were finished and failed in distribution, some were not in production and were never made. Prior investors in films produced by the same company had lost money. Most of the money from investors did not go to make or distribute the films, but to pay personnel and promoters. Most of the telemarketers earned 35 percent in commissions, although some earned as little as 12 percent and others as much as 40 percent. There was no time limit on the investments. Lies abounded. If a fronter’s cold-call produced an expression of interest, the potential investor would receive a private placement memorandum. The memorandum contained some cautionary language but repeated many of the same lies. Closers would follow up, making similar promises to get signed investment contracts and checks. Some of the investors were later targeted for reloading through the staged conference calls. In general, the defendants did not contend that the statements they made were true, but rather that they believed what they were told to say. The first set of issues analyzed below arises from the sentencing appeals of the two defendants who pleaded guilty, Robert Keskemety and James Lloyd. The second set of issues arises from the appeals of the three defendants tried together and convicted. DISCUSSION I. Keskemety’s and Lloyd’s Sentencing Appeals A. The Standard of Review We review a district court’s sentencing decision for an abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). A district court abuses its discretion when it improperly calculates the Guidelines range or bases its sentencing decision on clearly erroneous facts. Id.; United States v. Treadwell, 593 F.3d 990, 999 (9th Cir.2010). When a defendant does not object at sentencing, we review for plain error. See United States v. Vargem, 747 F.3d 724, 727 (9th Cir.2014). “Under the plain error standard, relief is warranted where the district court committed (1) error that (2) is plain; (3) ‘affected substantial rights;’ and (4) ‘seriously affected the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. at 728 (quoting United States v. Teague, 722 F.3d 1187, 1190 (9th Cir.2013)). B. The Guilty Pleas and Sentences In 2002, Michael Sellers hired Keskemety to set up and run a telemarketing boiler room in Florida to solicit investments in the two Dolphin movies. Keskemety would pay for the boiler-room expenses, including buying his own lead lists and paying the telemarketers. Sellers would pay Keskemety 25 to 40 percent of the money raised in the Florida boiler room. Keskemety began running the boiler room in 2004, soliciting investments first for the Eye of the Dolphin, then for the Way of the Dolphin. The telemarketers made their solicitation calls using lead lists Keskemety purchased from Craft. Kesk-emety managed the Florida boiler room from 2004 to 2009. During this period, the telemarketers raised approximately $2 million from victims who invested in making and marketing the two Dolphin films. Lloyd worked as Cinamour’s boiler-room manager from 2003 to 2007. Among other things, Lloyd recruited telemarketers and helped prepare scripts that closers used to get signed investment contracts and checks. In 2007, Sellers hired Lloyd to set up and run a boiler room in Los Angeles to sell partnership units in Sellers’s Dolphin films. Unlike his arrangement with Kesk-emety in Florida, Sellers paid the overhead for the Los Angeles-based boiler room that Lloyd managed. Lloyd convinced many of the telemarketers who worked with him at Cinamour as closers, including Allen Agler, to join him and do the same kind of telemarketing solicitation for Sellers’s Dolphin films that they had been doing for Cinamour. From 2007 to 2009, the California and Florida, boiler rooms together sold partnership units in the Dolphin movies to 264 victims, raising $9.3 million. Keskemety contends that his Florida boiler room raised $1.5 to $2 million of this amount. There is no controverting information. Based on this, Lloyd’s California boiler room raised approximately $7.3 million. The number of victims attributable to each location is unclear. The June 2011 indictment arising from the Dolphin movies, United States v. Lloyd, et al., No. 11-cr-542, charged Kesk-emety with conspiracy under 18 U.S.C. § 371, two counts of mail, fraud under 18 U.S.C. § 1341, and offering and selling unregistered securities under 15 U.S.C. §§ 77e and 77x and aiding and abetting under 18 U.S.C. § 2. On March 2, 2012, Keskemety pleaded guilty without a plea agreement to one count of mail fraud. The same indictment charged Lloyd with one count of conspiracy under 18 U.S.C. § 371, seven counts of mail fraud under 18 U.S.C. § 1341, seven counts of wire fraud under 18 U.S.C. § 1343, eight counts of offering and selling (or aiding and abetting the offer and sale of) an unregistered security under 15 U.S.C. §§ 77e and 77x and 18 U.S.C. § 2, and two counts of engaging in monetary transactions in property derived from illegal activity under 18 U.S.C. § 1957. Lloyd was also named in United States v. Toll, et al., No. 11-cr-543, arising from the Cinamour film telemarketing. This indictment charged Lloyd with one count of conspiracy under 18 U.S.C. § 371, four counts of mail fraud under 18 U.S.C. § 1341, four counts of wire fraud under 18 U.S.C. § 1343, three counts of offering and selling (or aiding and abetting the offer and sale of) an unregistered security under 15 U.S.C. §§ 77e and 77x and 18 U.S.C. § 2, and one count of engaging in monetary transactions in property derived from illegal activity under 18 U.S.C. § 1957.' In February 2012, Lloyd pleaded guilty to one count of wire fraud in United States v. Lloyd; in April 2012, he pleaded guilty to one count of wire fraud in United States v. Toll. The two actions were consolidated for sentencing. Neither Keskemety nor Lloyd appeals his conviction. Both appeal their sentences. Keskemety received an 80-month prison sentence, well below the 121 to 151 month Guidelines range, and was ordered to pay $8,628,733.93 in restitution. The offense level and restitution amount were based on the victims’ losses in both the Florida boiler room Keskemety managed between 2004 and 2009 and the Los Ange-les boiler room Lloyd managed between 2007 and 2009. Keskemety agrees that he is properly held accountable for the fraud losses from the Florida boiler room while he worked there, but he challenges including the Los Angeles boiler-room fraud losses in his relevant conduct. Lloyd received a 156-month sentence and had to pay $22,258,489.04 in restitution. He challenges the sentence length as both proeedurally flawed and substantively unreasonable. C. Keskemety’s Sentencing Appeal The district court largely adopted the revised presentence report and overruled Keskemety’s objections, including his objections to the fraud loss. The court calculated the Guidelines range based on a 20-level increase in offense level under § 2Bl.l(b)(l)(K) for $9,304,929.62 in intended fraud losses and a 6-level increase for over 250 victims. These amounts included both the California and Florida victims and their losses. The court calculated restitution the same way, including the 242 investors solicited by the California and Florida boiler rooms who could be identified by name. With a 2-level increase for the vulnerability of some of the victims and a 3-level reduction for acceptance of responsibility, the result was an offense level of 32, which produced a sentencing range of 121 to 151 months. Citing Keskemety’s military service, age, and poor health, the district court sentenced him to serve 80 months in prison and ordered him to pay $8,628,733.93 in restitution. Keskemety does not dispute that he is accountable for Guideline-calculation purposes for the amount raised from telemarketers’ solicitations in the Florida boiler room during the time he managed it, a fraud loss of $1.5 to $2 million. Nor does he dispute that he must pay restitution to the identifiable investors solicited from the Florida boiler room. He does dispute that his relevant conduct includes the fraud ■ losses generated by the Los Angeles telemarketing office that James Lloyd managed during the same period; that the number of victims of the Florida office exceed 250; and that he owes restitution to the identifiable investors solicited by the Los Angeles as well as the Florida operation. Kesketemy agrees that he knew that the California boiler room existed and what it was doing, but he disputes that this knowledge is enough to include the fraud losses from the California boiler room in his own relevant conduct. “[I]n the case of jointly undertaken criminal activity,” a defendant is responsible for “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § lB1.3(a)(l)(B). The defendant is accountable for the conduct of others that was both: “ ‘(i) in furtherance of the jointly undertaken criminal activity; and (ii) reasonably foreseeable in connection with that criminal activity.’ ” United States v. Blitz, 151 F.3d 1002, 1012 (9th Cir.1998) (quoting U.S.S.G. § 1B1.3, cmt. n. 2). “[W]e have held that a district court may not automatically hold an individual defendant responsible for losses attributable to the entire conspiracy, but rather must identify the loss that fell within the scope of the defendant’s agreement with his co-conspirators and was reasonably foreseeable . to the defendant.” United States v. Treadwell, 593 F.3d 990, 1002 (9th Cir.2010). Although a district court need not “proceed item-by-item through a complete list of all losses attributed to a criminal conspiracy and ... then make an individualized determination whether or not each item was within the scope of the defendant’s ‘joint undertaking’ and was ‘reasonably foreseeable’ to that defendant,” id. at 1002-03, the court must make particularized findings about “‘the scope of the criminal activity the particular defendant agreed to jointly undertake,’” Blitz, 151 F.3d at 1012-13 (quoting U.S.S.G. § 1B1.3, cmt. n. 2). “In determining the scope of the criminal activity that the particular defendant agreed to jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the defendant’s agreement), the court may consider any explicit agreement or implicit agreement fairly inferred from the conduct of the defendant and others.” U.S.S.G. § 1B1.3, cmt. n. 2. The example of jointly undertaken criminal activity in the Application Notes is a street-level drug dealer who pools resources and shares profits with four other street-level drug dealers. The first dealer is engaged in jointly undertaken criminal activity and is accountable for all the drugs he and the four other dealers sell during the time he works with them. Their sales are in furtherance of the first dealer’s jointly undertaken criminal activity and reasonably foreseeable to him. Id., cmt. n. 2, Illustration (c)(6). By contrast, a dealer who sells to his own customers, in his own territory, and does not share information, other resources, or profits with other dealers who have their own territories and customers, is not engaged in jointly undertaken drug dealing with the other dealers and is not accountable for the drugs they sell. That is true even if the first dealer knows about the other dealers and who they are and knows that the drugs come from the same supplier. Similarly, even if the first street-level drug dealer knows that the person who recruited him to sell drugs also recruited the other dealers for the same purpose, the first dealer is generally accountable only for the drugs he sells. U.S.S.G. § 1B1.3, cmt. n. 2, Illustration (c)(7). The dealers are doing the same kind of criminal activity at the same time, but it is not a jointly undertaken criminal activity. U.S.S.G. § 1B1.3, cmt. n: 2, Illustration (c)(6). Knowledge of “another participant’s criminal acts is,not enough to hold the defendant responsible for those acts,” United States v. Studley, 47 F.3d 569, 575 (2d Cir.1995), and knowledge of a conspiracy’s overall objectives does not make the defendant accountable for all the cocon-spirators’ acts furthering those objectives. In the telemarketing context, “the scope of a joint undertaking for sentencing purposes depend[s] on whether the telemarketers ‘worked together,’ ‘relied on one another to make a sale,’ attended the same sales meetings, and ‘depended on the success of ... the operation as a whole for their financial compensation.’ ” Treadwell, 593 F.3d at 1005 (quoting Blitz, 151 F.3d at 1013). If two defendants, working together, design and execute a scheme to sell fraudulent stocks in a telephone boiler-room operation, each is accountable for all the fraud losses that result. The conduct of each is in furtherance of their jointly undertaken criminal activity and is reasonably foreseeable in ■ connection with that criminal activity. U.S.S.G. § 1B1.3, cmt. n. 2, Illustration (c)(2). To determine a defendant’s fraud-loss amount and resulting offense level, a district court must consider that defendant’s role in the overall scheme. See Treadwell, 593 F.3d at 1005; Studley, 47 F.3d at 576. The district court made the following statements about the scope of the criminal activity Keskemety agreed to jointly undertake: [T]hat the losses of that amount [$9,304,-929.62] to those [264] victims were sustained during the period of, the relevant period of [Keskemety’s] participation in the scheme and also that they do include relevant conduct with respect to Mr. Lloyd, and they were clearly foreseeable and therefore properly attributable to [Keskemety]. The court appeared to base this conclusion on Keskemety’s knowledge about Lloyd’s operations and Sellers’s overall objectives and goals: Although [Kesketemy] was in Florida, he was fully aware of all the major facets of the scheme, knew others who were raising money from the [Dolphin ] movies, [sic] ran his own boiler room operation that employed several closers who worked for him. The district court did not identify additional facts supporting its conclusion that the solicitation and sales activities in Lloyd’s Los Angeles boiler room were within “the scope of the criminal activity [Keskemety] agreed to jointly undertake.” U.S.S.G. § 1B1.3, cmt. n. 2. There is evidence that Lloyd and Keskemety were engaged in the same type of activity. Both used similar scripts and materials obtained from Craft’s American Information Strategies. But Lloyd and Keskemety did not pool customers, information, or -other resources. In this respect, Keskemety was like the drug dealer who gets the drugs he sells from the same source as other dealers and knows about their work, but does not share drugs, customers, or information with them. Keskemety and Lloyd both got lead lists and scripts from Craft, but they did not share information with each other. At sentencing and on appeal, the government made a number of arguments to show that Keskemety was properly held accountable for the fraud losses from the Los Angeles as well as the Florida boiler room. The government cited evidence that Keskemety received a commission check when Lloyd reloaded Keskemety’s investors, even after Keskemety had stopped actively soliciting investments himself. The district court properly rejected this argument because the government could not show that Keskemety “knew that Lloyd ... [was] reloading his investors other than the fact that he continued to get paid[.]” The district court was “not convinced that there [was] sufficient evidence that [Keskemety] was aware of ... the [reloading] conference calls.” The district court expressly rejected the statement in the revised PSR that Kesk-emety profited from the conference calls Lloyd used to reload investors: I don’t see any evidence in this record that would support this defendant profited from the conference calls or that he provided his investor client list to ... Lloyd for reloading. The record shows that Keskemety did not benefit from the solicitations and sales made in Lloyd’s Los Angeles boiler room and did not share the proceeds of his boiler-room solicitations with Lloyd. The government argues that Keskemety and Lloyd were “acting in concert for the same purported goal: to raise money for Sellers.” The fact that Keskemety and Lloyd independently worked for Sellers does not mean that Keskemety and Lloyd jointly undertook their criminal activity. Similarly, the government urges that because “all [telemarketers] used the same materials to sell the deal,” all were engaged in jointly undertaken criminal activity. As Keskemety points out, using the same marketing materials does not tie Keskemety’s compensation to Lloyd’s solicitations and sales such that the California fraud losses should be included in Keskemety’s relevant conduct. The fact that Keskemety dealt with some investors who complained and “lulled” them does not show that he did so for Lloyd’s investors or that Lloyd shared in the benefits of this work. Evidence that Keskemety eventually “went to a salary plus bonus payment plan that was equal to the commissions he would have earned,” does not tie Keskemety’s compensation to Lloyd’s solicitations and sales sufficiently to include the California fraud loses in Keskemety’s relevant conduct. The government cites evidence that Keskemety had an acting role in one of the Dolphin movies, but this does not show that he had an interest in the success of the operation as a whole that would justify including the fraud losses from the Los Angeles boiler room in his own relevant conduct. Keskemety had a very small role in the film, and there is no evidence that it contributed to making the money Lloyd raised through the California boiler room. In sum, the record support for holding Keskemety accountable for Lloyd’s similar criminal activity appears limited to Kesk-emety’s knowledge of Lloyd’s operations and of Sellers’s overall objectives and goals. That is not enough, given the evidence that Keskemety operated the Florida boiler room independently from Lloyd’s California boiler room and did not share information, resources, or profits. The government contends that United States v. Blitz, 151 F.3d at 1012, supports holding Keskemety accountable for the losses attributable to the Los Angeles-based boiler room. The telemarketing scheme in Blitz was different from the scheme the record discloses here. In Blitz, the “[dealers and closers strongly relied on one another to make a sale,” “[a]ll employees attended sales meetings,” and the “employees did not work on a pure commission basis” and instead “received a salary,” thus making them “depend[] on the success of the [fraudulent] operation as a whole for their financial compensation.” 151 F.3d at 1013. In holding the individual telemarketers accountable for the money raised by the other telemarketers as reasonably foreseeable jointly undertaken criminal activity, the Blitz court distinguished Studley, in which the court refused to hold one telemarketer accountable for the other telemarketers’ intended fraud losses. In Studley, the defendant “did not design or develop the fraudulent scheme; did not work in any way to further the scheme outside of his own sales efforts; was paid on a pure commission basis, receiving no profits from the overall operation; did not assist other representatives with their sales, but rather competed with them for commissions; did not pool resources with other telemarketers; and had no interest in the success of the operation as a whole.” Blitz, 151 F.3d at 1013. The record shows that Keskemety is much closer to the defendant in Studley than to the telemarketers in Blitz. Kesk-emety did not design or develop the overall scheme; Sellers did. Lloyd joined the conspiracy to raise money for the Dolphin movies long after Keskemety. Keskemety’s efforts to further the scheme related to the boiler room he managed. He did not pool resources with Lloyd’s boiler room, and he was paid commissions based on the proceeds from the Florida boiler room’s sales. The other cases the government cites do not change the analysis. In United States v. Treadwell, 593 F.3d 990 (9th Cir.2010), “[b]oth defendants described themselves as ‘founders’ of the investment companies they were asking investors to support with funds,” “[b]oth defendants led conference calls with the companies’ nationwide sales force,” “[b]oth defendants traveled around the country selling their companies’ investment strategy,” “[b]oth defendants misrepresented the investments made by their companies,” and “both defendants profited from the mutual efforts of their coconspir-ators in selling non-existent investments.” Id. at 1005. In this case, by contrast, the district court did not make similar particularized findings of jointly undertaken criminal activity. Instead, the district court did not find, and the present record does not show, that the solicitations made and money obtained from Lloyd’s Los Angeles boiler room were within the scope of the criminal activity that Keskemety agreed to undertake for Sellers. We reverse the district court’s judgment on the amount of fraud loss, vacate the restitution order, and remand for resen-tencing. We need not and do not address Keskemety’s other arguments about substantive reasonableness or restitution. D. Lloyd’s Sentencing Appeal Lloyd pleaded guilty to one count of wire fraud in each of the two cases naming him as a defendant, and he does not challenge his convictions. He does challenge the 156-month sentence the district court imposed as both procedurally flawed and substantively unreasonable. “Procedural errors include, but are not limited to, incorrectly calculating the Guidelines range, treating the Guidelines as mandatory, failing to properly consider the [18 U.S.C.] § 3553(a) factors, using clearly erroneous facts when calculating the Guidelines range or determining the sentence, and failing to provide an adequate explanation for the sentence imposed.” United States v. Armstead, 552 F.3d 769, 776 (9th Cir.2008). The district court’s 156-month sentence was a downward variance from the Guidelines range of 210 to 262 months. Lloyd asserts — for the first time on this appeal — that the district court failed adequately to explain why it did not impose an even lower below-Guidelines sentence. His argument is without merit. The district court thoroughly explained its reasons for the sentence in over 20 pages of transcript. A careful review of the record satisfies us that the sentence was procedurally sound and that the district court did not abuse its discretion, much less plainly err, in the below-Guidelines sentence imposed and the explanation provided. Lloyd’s argument that the district court erred in not departing further goes to substantive reasonableness. See United States v. Ellis, 641 F.3d 411, 421 (9th Cir.2011). The record shows that the 156-month sentence, well below the bottom of the Guidelines range, was substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We affirm. II. The Appeals from the Convictions: Baker and Nelson A. The Indictments Baker, Nelson, and Greenhouse were indicted in United States v. Daniel Toll, et al., No. 11-cr-543, for soliciting investments in the Cinamour movies. Baker was charged with one count of conspiracy under 18 U.S.C. § 371, two counts of mail fraud under 18 U.S.C. § 1341, two counts of wire fraud under 18 U.S.C. § 1343, and two counts of offering and selling (or aiding and abetting the offer and sale of) an unregistered security under 15 U.S.C. §§ 77e and 77x and 18 U.S.C. § 2. Nelson was charged with one count of conspiracy under 18 U.S.C. § 371, two counts of mail fraud under 18 U.S.C. § 1341, two counts of wire fraud under 18 U.S.C. § 1343, and two counts of offering and selling (or aiding and abetting the offer and sale of) an unregistered security under 15 U.S.C. §§ 77e and 77x and 18 U.S.C. § 2. Greenhouse was charged with one count of conspiracy under 18 U.S.C. § 371, three counts of mail fraud under 18 U.S.C. § 1341, and two counts of offering and selling (or aiding and abetting the offer and sale of) an unregistered under 15 U.S.C. §§ 77e and 77x and 18 U.S.C. § 2. The three defendants were tried together. Baker worked from his home in California as a closer from 2004 to 2009, soliciting investments in From Mexico with Love and in Red Water. Nelson worked in Ci-namour’s Sherman Oaks and Encino, California, offices as a fronter and closer from October 2007 to May 2009, soliciting investments in Red Water. Greenhouse worked from his home in Florida from 2005 to 2007, soliciting investments in partnership units for From Mexico with Love. The jury convicted Baker and Nelson on all the counts submitted against them. The jury acquitted Greenhouse of conspiracy and mail fraud but convicted him for offering and selling unregistered securities and aiding and abetting and causing those sales, in violation of 15 U.S.C. §§ 77e and 77x and 18 U.S.C. § 2. At sentencing, the district court calculated a 292 to 365 month Guidelines range for Baker but varied downward, imposing a 194-month prison term and a $12,043,678.25 restitution obligation. The district court calculated a 97 to 121 month Guidelines range for Nelson but sentenced him to serve 84 months in prison and to pay $1,860,000 in restitution. Baker and Nelson timely appealed their convictions and sentences. Greenhouse was sentenced to 60 months in prison, below the Guidelines range of 63 to 78 months, and to pay $530,000 in restitution. He appeals only his sentence. B. Baker’s and Nelson’s Challenges to Their Convictions 1. The Trial Evidence Against Baker In 2001, Hartford hired Baker as an “associate producer” at Cinamour. Baker was working as a telemarketer soliciting money for Forbidden Warrior when he was arrested and jailed in March 2003 for a parole violation. Baker went back to working for Cinamour in January 2004 and, with his partner, worked for Cinam-our out of their home in Coachella Valley, California until 2009. In March 2004, Baker and his partner, doing business as Independent Essentials, entered into a written agreement with Ci-namour for a 20 percent commission on the money they raised working as telemarketers and closers soliciting investments in From Mexico With Love. From January 2005 to January 2007, Baker closed $200,000 in From Mexico With Love investments. Baker also earned a commission for the investments that Lloyd closed using Baker’s investor list from Forbidden Warrior. Lloyd used Baker’s investor information to reload those who had sent money for Forbidden Warrior, producing more money for From Mexico With Love. In 2007, Cinamour stopped soliciting for From Mexico With Love and turned to soliciting money from investors for Red Water. Baker and his partner ran the Red Water fundraising. Baker hired codefen-dant Bart Slanaker, who had experience operating telemarketing boiler rooms. Baker’s partner managed the money, received investor checks, and paid commissions. Baker gave Slanaker Red Water sales materials and paid him a 15 percent commission. Baker contacted prospective investors from lead lists. Diane Houseknecht testified that in a letter and conversations, Baker told her that investors would receive 90 cents on every dollar the film earned until they got back all the principal they had paid plus 10 percent. Baker also promised her that the return would be fast. He did not reveal that he would earn a 15 to 20 percent commission. Instead, he emphasized that the investors would get paid before the promoters or salespeople received anything and that the invested funds would be used to make and market the movies, not to pay promoters or salespeople. Houseknecht, who had no investment experience, invested $25,000 in Forbidden Warrior, $10,000 in cash and $15,000 from her retirement account. She got back $1,000. Lloyd later convinced Houseknecht to invest another $20,000 in From Mexico with Love, using $10,000 in cash and $10,000 from her retirement account. Gary Tranter testified that Baker called him in 2002 to solicit an investment in Forbidden Warrior. In the telephone call, Baker compared Forbidden Warrior to the well-known and commercially successful film Crouching Tiger, Hidden Dragon. Baker stated that a majority of the Forbidden Warrior units had already been sold and that Tranter needed to act quickly. Baker told Tranter that Forbidden Warrior was ready for release in theaters in the near future; it was not. Baker also said that investors would be paid back first and that promoters and sales personnel would be paid only after the investors. Baker did not disclose the fact or amount of commissions he and others were getting. Tranter worked as a wholesale broker of indoor houseplants and had little financial or investment experience. He invested $10,000 in Forbidden Warrior and got back $800. Baker unsuccessfully tried to reload Tranter in From Mexico With Love but did get him to send another $5,000 for Red Water. Tranter never got any of his investment in Red Water back. Another investor, Thomas Beacham, an office manager for a paint shop, testified that Baker cold-called him in 2002 about investing in Forbidden Warrior. Baker told Beacham that Forbidden Warrior would be a “big moneymaker” because it was comparable to Crouching Tiger, Hidden Dragon. When Beacham said that he did not have the money to invest, Baker emphasized that this was a limited-time offer and asked if Beacham had retirement savings he could use. When Beacham pointed out that he did not meet the requirements for an accredited investor— including that his net worth was far below the $1 million minimum — Baker urged him not to “worry about that. It’s just in there for formality. We can make an exception in your case.” Beacham invested $5,000 from his retirement account in Forbidden Warrior. Baker successfully convinced Beacham to invest another $10,000 from his retirement account in From Mexico With Love after Beacham participated in a reloading conference call run by Lloyd and Agler. Beacham lost all the money he invested except “a hundred bucks or so.” Beacham testified that he had lost his job in 2008 and had to cash out his retirement account, which was “15 grand shorter than it probably should have been.” FBI Special Agent Sean Sterle, who worked undercover posing as a Florida businessman interested in investment opportunities, also testified. After a cooperating witness introduced Baker to Sterle, five or six telephone conversations followed in which Baker tried to convince Sterle to invest in Red Water. Sterle recorded his conversations with Baker and the jury heard them at trial. The recordings included Baker’s statements that Red Water had secured $5.4 million in presale commitments to distribute the film in 31 countries; that the presales revenues would pay investors a 110 percent return; that Sterle would receive a 110 percent return in eight to ten months, get his full investment back within the year, and triple his money in two years; and that the sales personnel received no commissions. The evidence showed that the promises Baker repeatedly made were either false or made without any reasonable basis to believe that they were true. 2. The Trial Evidence Against Nelson David Nelson worked for Cinamour as a •fundraising telemarketer from October 2007 to May 2009. Nelson had a sad personal history. He began drinking at age 11. He dropped out of high school. His drinking and drug use lost him job after job. He tried to rehabilitate himself by joining the Marines, which trained him as a software engineer, but even the Marines could not get him to stop drinking. He received a general discharge. Although the training helped him get jobs, he lost them every few months. Nelson became homeless in 2001. In 2005, after four years of living on the streets and jumping from one job to another, Nelson got treatment for his alcoholism at a halfway house that required its clients to have jobs. Nelson found work as a telemarketer selling industrial equipment, but lost this job. Nelson again became homeless, living behind a dumpster. On March 30, 2007, paramedics found Nelson behind the dumpster and took him to the hospital. Nelson readmitted himself to the halfway house for a third time in 2007 and got another telemarketing job. Nelson’s supervisor there, Bart Slanaker, later convinced him to follow him to Cinamour’s boiler room to work soliciting money for a new movie, Red Water. Several victims testified about talking to Nelson. Melvin Bitikofer was a retired stove salesman who had owned his own store. Nelson cold-called him in October 2007. Nelson described the Red Water investment as a once-in-a-lifetime opportunity and promised Bitikofer that he would begin to receive returns as early as the first quarter of 2008. Nelson told Bitikofer that investors would get a 110 percent return, that the movie was already being filmed, that presale distribution contracts worth $5.9 million were already in place, and that nothing could go wrong.- Nelson touted Cinamour’s previous movie, From Mexico With Love, as a proven commercial success that had rewarded its investors well. Nelson omitted his commissions from the discussions and downplayed the investment risks. Bitikofer invested $50,000. Nelson and his colleagues successfully reloaded Bitikofer several times. In February 2009, Bitikofer participated in a reloading conference call led by Bart Sla-naker. Bitikofer testified that the other persons participating in the call appeared to be potential investors and that they enthusiastically endorsed the Red Water investment opportunity. These other participants were, in fact, Cinamour telemarketers. During the call, Bitikofer stated that he did not have more money and that any investment would have to come from his wife’s IRA. After the call, Nelson and Slanaker persuaded Bitikofer to get $100,000 from his wife’s IRA. Bitikofer and his wife invested a total of $250,000, which they repeatedly told Nelson was from their retirement and IRA funds.' They lost all they invested. Biti-kofer testified that this loss resulted in a “[t]errible” financial hardship for the couple. They could “hardly keep up with the bills coming in” and faced the prospect of “tak[ing] out bankruptcy.” Richard Clark was a farmer with no investment experience. He wanted a conservative investment that could provide some income to help him stop farming because of its physical demands. Nelson cold-called Clark in April 2009 and solicited him to invest in Red Water. Clark told Nelson what he did for a living and that he had no investment experience. Nelson told Clark that very few units were left and that the investment was the “best thing” he had seen in his career. Nelson told Clark that he would start to receive distributions by the summer of 2009. Nelson assured Clark that there were already enough presale contracts to cover production and marketing costs and ensure him a fast profit. Clark also participated in a conference call with Slanaker, Nelson, and people he understood to be other investors. Clark testified that Nelson actively participated in this call. Clark invested $15,000, which he lost; he described the loss as “a bad lick for me.” Dennis Eliassen was retired when Nelson cold-called him in June 2008. Nelson told him that Cinamour already had $6 million in presale contracts, twice the amount needed to cover all the film production and marketing costs. Nelson sent Eliassen an email assuring him that investment “security is in place through our pre-sales distribution.” Nelson told Eliassen that everything was on track to begin filming Red Water in December 2008, and that the investors would be, paid first and quickly. Nelson also told him that From Mexico With Love and Forbidden Warrior had been successful for the investors. El-iassen invested $50,000 from his IRA and lost it all, a “pretty” big hardship. Connie Hurd testified that when Nelson cold-called her in early 2008, she told him that she and her husband owned a tool company and had very little investment experience. Nelson assured her that the Red Water investment presented minimal risk and that the investors would be paid back everything before the promoters and sales personnel received anything. Nelson assured her that Cinamour already had presale contracts projected to be worth $5.9 million, which guaranteed a secure and profitable investment. Nelson did not disclose the existence or amount of his or others’ commissions. Hurd lost her $5,000 investment. The jury heard from Stephanie Alarcon, a Cinamour telemarketer hired by Slanaker to work as a fronter cold-calling potential investors and passing the names of those expressing interest to closers, who would follow up to finalize the sale. She made the calls from a lead list and read a script. Nelson listened to make sure she did it properly and gave her tips. Nelson asked her to write down personal information potential investors gave her in the calls for him to use in his closing pitches. Alarcon followed this instruction. For example, when she talked to Richard Clark, she noted that he was a Christian and that Nelson should emphasize “Christian things” in trying to finalize his investment. Alarcon’s account of what she was told to say when she called potential investors was consistent with their testimony about what they were promised. Nadav Shimoni, another fronter, testified that he participated with Nelson in some of the reloading conference calls. Nelson would read a sales pitch from a script, and Shimoni would pretend that he was an investor who had decided to invest more money. His testimony was consistent with what the investors who participated in these calls described. Nelson testified and told the jury about his background. He testified that in April 2007, just after he became sober, he got a job as a telemarketer working under Bart Slanaker. Nelson testified that Slanaker was so domineering and abusive that Nelson feared him and was intimidated into doing whatever Slanaker told him to do. His fear of losing yet another job contributed to his unquestioning obedience. Nelson testified that when he began working at Cinamour, he believed it was legitimate. Slanaker took Nelson to the production location for From Mexico With Love. Nelson testified that he recognized Cinamour’s logo and some of the actors in the film. Nelson looked at Cinamour’s website and saw that it was a production and distribution company working in film and television. Nelson read that the Better Business Bureau rated Cinamour Triple A, with no complaints. Nelson learned that Cinamour was raising money for Red Water. In October 2007, Nelson followed Slanaker to Cinamour and began soliciting investments in Red Water. Nelson testified that Slanaker prohibited him from associating with anyone else at Cinamour. The office manager testified that Slanaker often screamed at Nelson, who remained quiet and kept to himself, away from the other telemarketers. Nelson testified that at Cinamour, he was given lead sheets and a script. If a call was met with interest, Nelson filled out a sheet and gave it to Slanaker, who sent an information package to' the potential investor. Nelson would then call and go over the package using a preset script, answer questions, and try to persuade the prospect to sign the papers and send a check made out to Red Water Films. Nelson testified that he did not know that the representations he made were false and insisted that he did not intend to defraud investors. He believed that the purpose of the script was to keep the telemarketers honest about what they told potential investors, not to give the telemarketers lies to tell. He also believed that Cinamour had $5.9 million in presale distribution contract commitments. Nelson acknowledged that he was getting paid for the sales he made but testified that he did not lie when he stated that no commissions were being paid, because what he received was a “management fee.” Nelson did admit, however, that the Red Water private placement memorandum he sent to potential investors provided a misleading description of how and when the promoters and sales people would be paid. Nelson testified that he thought the conference calls he participated in were to give status reports to people who had already invested. Nelson denied knowing that the calls were to “reload” investors or that Cinamour employees were playing the role of happy investors. Nelson was shown a script for a reloading conference call. The script identified him as the Vice President of Technology at View Partners. Nelson denied having seen or used the script or having read or heard that false description of his job and title, but the script was found on Nelson’s office computer at Cinamour. The government pointed out that the script made clear the purpose of the call and the presence of the fake “other investors.” The script contained a list of the Cinamour employees who participated in at least one reloading conference call playing the role of investors. The script also had handwritten notes about some of the victims who took part. Nelson denied that the notes were his. But another exhibit, which Nelson admitted to writing, had very similar handwriting. The government argued that the similarity between the two documents provided additional support for inferring that Nelson was lying about his role in the Red Water conference calls, about not knowing that Cinamour employees were acting as shills, and about not having seen scripts for the calls. C. Baker’s and Nelson’s Challenges to Their Convictions Baker and Nelson challenge the trial court’s evidentiary rulings and jury instructions, the prosecutor’s comments at closing, and the sufficiency of the evidence. They contend that if no one error justifies vacating their convictions, the cumulative effect does. We identify several errors, find them harmless as to Baker, but conclude that Nelson’s conviction must be reversed. 1. The Challenges to the Evidentiary Rulings We review the district court’s evidentiary rulings for abuse of discretion. See United States v. Pineda-Doval, 614 F.3d 1019, 1031 (9th Cir.2010). a. The Victims’ Testimony Baker and Nelson argue that the district court should not have allowed victims to testify about their financial situations and the impact of losing the money they invested. Baker and Nelson argue that the district court erred in admitting the victims’ testimony because the risk of unfair prejudice substantially outweighed the probative value. See Fed.R.Evid. 403. We disagree. Because Nelson objected to Elias-sen’s testimony, we review its admission as to both Nelson and Baker for an abuse of discretion. See United States v. Orm Hieng, 679 F.3d 1181, 1141 (9th Cir.2012). We review testimony elicited without objection for plain error. See United States v. Lopez, 762 F.3d 852, 859 (9th Cir.2014). “A district court’s Rule 403 determination is subject to great deference, because ‘the considerations arising under Rule 403 are susceptible only to case-by-case determinations, requiring examination of the surrounding facts, circumstances, and issues.’” United States v. Hinkson, 585 F.3d 1247, 1267 (9th Cir.2009) (quoting R.B. Matthews, Inc. v. Transamerica Transp. Serv., Inc., 945 F.2d 269, 272 (9th Cir.1991)). Eliassen’s testimony that he told Nelson that he had no cash to invest and would have to use his retirement money was relevant to rebut the defendants’ argument that they believed their investor-victims to be accredited investors. Elias-sen also testified that losing his investment was a “very big” hardship. Any error in admitting this limited and brief victim-impact testimony was harmless. The thrust of Eliassen’s testimony was relevant to show not only what Nelson said, but also what he knew and intended. For similar reasons, the district court did not plainly err by allowing Bitikofer, Beacham, and Clark to testify about how they described their financial situations to Nelson or Baker. Both Nelson and Baker argued at trial that they believed each person they successfully persuaded to invest in partnership units was a wealthy and experienced investor who could afford to lose the money. The testimony was relevant to rebut this defense, and there was no error, much less plain error, in allowing it. Although these victims also briefly described the impact of losing the money, that limited testimony did not affect the defendants’ substantial rights. There was no plain error. Baker and Nelson contend that Rao’s testimony that Greenhouse refused to return the money he and his girlfriend invested, even after Greenhouse was told that it was needed for her cancer treatment, was plain error. Rao’s testimony discussed only Greenhouse and Agler and did not mention either Baker or Nelson. At oral argument, Nelson’s counsel agreed that this testimony prejudiced only Greenhouse. Baker, however, contends that Rao’s testimony “was unfairly prejudicial to all the trial defendants because they were charged in Count One with a conspiracy” and the district court did not specifically instruct the jury to consider the testimony only against Greenhouse. The record shows that any error in failing to give the limiting instruction was not plain and did not affect Baker’s or Nelson’s substantial rights. Baker separately argues that because he had no duty to tell potential investors about the commissions he was paid, the district court erred in allowing the victims he solicited to testily that they would not have invested had they known about the commissions. Baker relies on cases stating that “[a]bsent an independent duty, such as a fiduciary duty or an explicit statutory duty, failure to disclose cannot be the basis of a fraudulent scheme,” United States v. Ali, 620 F.3d 1062, 1070 n. 7 (9th Cir.2010) (internal quotation marks omitted), and that “otherwise truthful statements made by [a broker] about the merits of a particular investment are not transformed into misleading ‘half-truths’ simply by the broker’s failure to reveal that he is receiving added compensation for promoting a particular investment,” United States v. Skelly, 442 F.3d 94, 97 (2d Cir.2006). Baker’s argument fails to take into account the evidence that he affirmatively told victims that he, other sales personnel, and promoters would not receive any commissions or other payments until after the investors had received a 110 percent return. Baker’s argument also fails to take into account that the Red Water private placement memorandum, which Baker sent to Gary Tranter and to the undercover FBI agent posing as an investor, included the false statement that no commissions would be paid until the investors had received a profitable return on their investments. The jury heard recorded conversations of Baker telling the undercover FBI agent posing as an investor that he received no commissions. Baker admitted that he lied to the agent about commissions. “[A] broker cannot affirmatively tell a misleading half-truth about a material fact to a potential investor ... [because] the duty to disclose in these circumstances arises from the telling of a half-truth, independent of any responsibilities arising from a truth relationship.” United States v. Laurienti, 611 F.3d 530, 541 (9th Cir.2010). Baker’s affirmative misrepresentations that he would receive no commissions until the investors received a profitable return supported his fraud conviction without the need to prove a fiduciary relationship. See, United States v. Benny, 786 F.2d 1410, 1418 (9th Cir.1986) (“Proof of an affirmative, material misrepresentation supports a conviction of mail fraud without any additional proof of a fiduciary duty.”). The district court did not err in allowing the victims to testify about Baker’s representations and omissions about commissions. b. The Lay Opinion Testimony Baker and Nelson argue that the district court erred in allowing Allen Bruce Agler, who had worked in several movie telemarketing boiler rooms (including for Cinamour during the fundraising for From Mexico With Love between 2005 and 2007), to testify about boiler-room management, activity, and strategy. Agler’s testimony included his opinions about the information and knowledge telemarketers have when they cold-call potential investors and when they close a deal. Agler’s testimony was not admissible under Rule 702 of the Federal Rules of Evidence because the government did not give the defendants the notice required under Rule 16 of the Federal Rules