United States v. Joseph

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Appellate Case: 23-1192     Document: 010111086158       Date Filed: 07/29/2024     Page: 1
                                                                                   FILED
                                                                       United States Court of Appeals
                                        PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                          July 29, 2024
                                                                          Christopher M. Wolpert
                              FOR THE TENTH CIRCUIT                           Clerk of Court
                          _________________________________

  UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

  v.                                                           No. 23-1192

  FRANCIS F. JOSEPH,

        Defendant - Appellant.
                       _________________________________

                      Appeal from the United States District Court
                              for the District of Colorado
                           (D.C. No. 1:21-CR-00083-RM-1)
                        _________________________________

 Elizabeth A. Franklin-Best, Elizabeth Franklin-Best, P.C., Columbia, South Carolina, for
 Defendant – Appellant.

 John J. Liolos, Trial Attorney (Nicole M. Argentieri, Acting Assistant Attorney General;
 Lisa H. Miller, Deputy Assistant Attorney General, with him on the brief), Fraud Section,
 Criminal Division, U.S. Department of Justice, Washington, D.C., for Plaintiff –
 Appellee.
                          _________________________________

 Before McHUGH, MURPHY, and CARSON, Circuit Judges.
                  _________________________________

 MURPHY, Circuit Judge.
                     _________________________________

       I.     Introduction

       Dr. Francis Joseph was the founder of Springs Medical Associates (“Springs

 Medical”), a medical practice based in Colorado Springs, Colorado. Following an ill-
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 fated corporate governance agreement which installed a new Chief Operating Officer

 (“COO”), Joseph concocted a scheme for the alleged purpose of regaining control of

 the practice. Between March and June 2020, he submitted several false and

 unauthorized applications to federal COVID-19 relief programs on Springs Medical’s

 behalf. As a result, Joseph received over $250,000 in federal aid, which he disguised

 from Springs Medical leadership and ultimately misspent for personal gain.

       In 2023, a jury convicted Joseph of two fraud-based counts. On appeal, he

 argues insufficient evidence existed to demonstrate he possessed the requisite intent

 to commit the offenses. He also presents several challenges to his trial and sentencing

 proceedings, including that the district court improperly (a) limited his cross-

 examination and introduction of evidence; (b) admitted expert testimony as lay

 testimony; (c) allowed the government to introduce Fed. R. Evid. 404(b)(1)

 propensity evidence; (d) declined to provide clarifying jury instructions; and (e)

 miscalculated the economic loss under the sentencing guidelines occasioned by his

 offenses. This court concludes the record is replete with direct and circumstantial

 evidence that Joseph intended to commit fraud through his relief program

 applications. Further, except for the district court’s admission of expert testimony in

 the guise of lay testimony, which was harmless, the district court neither erred in

 sentencing nor abused its discretion in conducting Joseph’s trial. Thus, exercising

 jurisdiction pursuant to
28 U.S.C. § 1291
and
18 U.S.C. § 3742
(a), this court affirms

 the district court’s judgment.



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       II.    Background

              a. Federal Relief Programs

       Joseph completed unauthorized applications for two federally funded relief

 programs: the Accelerated and Advance Payment Program (“AAP”); and the

 Paycheck Protection Program (“PPP”). In light of the strain caused by the COVID-19

 pandemic on national healthcare, the Centers for Medicare and Medicaid Services

 (“CMS”) expanded the existing AAP to cover a broader range of Medicare providers.

 The program supplied funds to providers who experienced disruptions in Medicare

 claim submissions and processing. As long as applicants met basic criteria, AAP

 allowed providers to request a loan of up to 100% of Medicare payments for a three-

 month period. The loans permitted providers to receive full payment for claims until

 the date of recoupment, which began one year following the issuance of the loan.

 During this collection period, Medicare automatically offset amounts owed for new

 claims to repay the advanced funds.

       PPP was authorized by the Coronavirus Aid, Relief, and Economic Security

 (“CARES”) Act in March 2020 to help businesses weather the unpredictable

 economic conditions caused by the pandemic. The loans were facilitated by the Small

 Business Administration (“SBA”) and were forgivable if used for the limited

 purposes of payroll retention and paying mortgage interest, rent, or utilities. To

 obtain a PPP loan, a qualifying business had to submit a signed application from an

 authorized representative of the company. Candidates were further required to certify

 their acknowledgment of the program rules and provide payroll details. Both PPP and

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 AAP loans were processed by third-party lenders, which coordinated with

 government entities to ensure applicants were properly approved and received the

 correct amount of relief.

              b. Factual & Procedural History

       Joseph was the founder and managing physician of Springs Medical. He

 managed and controlled the practice until January 29, 2020, when Springs Medical

 adopted a document entitled “Joint Action by Written Consent of the Directors and

 Shareholders of [Springs Medical]” (the “Joint Action Document”). The Joint Action

 Document appointed Eric Papalini as Springs Medical’s COO and bestowed upon

 him the authority and discretion to “make all actions necessary or desirable related to

 the operation of [Springs Medical].” As particularly relevant here, Papalini’s

 authority included, “without limitation, the authority to hire and fire employees,

 manage [Springs Medical’s] banking accounts, make all decisions regarding [Springs

 Medical’s] finances, borrow money in the name of [Springs Medical], make any

 contracts, enter into any transactions and make and obtain any commitments on

 behalf of [Springs Medical] deemed necessary or appropriate in his sole direction.”

 After the Joint Action Document was executed, Joseph retained his shareholder

 status, but his day-to-day role was reduced to serving as a physician-employee.

       On the same day that Congress signed the CARES Act into law, March 27,

 2020, Joseph opened an unauthorized bank account in Springs Medical’s name

 (hereafter, the “Unauthorized Bank Account”), making himself the sole signatory.

 His actions violated the terms of the Joint Action Document, which vested control of

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 practice finances in Papalini. Joseph, however, claimed he opened the Unauthorized

 Bank Account because of a dispute with Papalini over his leadership and business

 decisions. He took offense to Papalini’s behavior and purportedly considered it wise

 to disguise his financial dealings in preparation to oust Papalini from practice

 operations.

       On or about March 29, 2020, Joseph applied for AAP relief on behalf of

 Springs Medical without authorization from Papalini. He requested the maximum

 available loan and certified the request was due to billing complications caused by

 COVID-19. Notably, evidence presented at trial suggests no such complications were

 present at the time Joseph submitted his request. Joseph’s application was approved

 and on April 7 the assigned lender made a payment of $86,747.11 to Springs

 Medical’s authorized business bank account (hereafter, the “Official Business

 Account”). Within twenty-four hours, Joseph transferred $92,000 from this account

 to his minor daughter’s bank account, which he controlled.

       On April 3, Joseph applied for an unauthorized PPP loan in Springs Medical’s

 name. His application listed his personal residence as the business address, used

 Springs Medical’s Employer Identification Number (“EIN”), and sought $500,000 in

 assistance. He claimed $200,000 in monthly payroll, covering thirty-eight employees.

 The selected lender, Fountainhead Commercial Capital (“Fountainhead”), denied

 Joseph’s application. It explained that another PPP loan request using Springs

 Medical’s EIN had already been submitted. In fact, Springs Medical had previously

 tendered an authorized PPP loan application for $253,500.

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       Shortly thereafter, Springs Medical’s office manager, Nicole Dennis, learned

 Joseph had removed funds from the Official Business Account following his

 successful AAP loan application. Dennis called Joseph, requesting he return the

 money so the practice could pay its employees. Joseph curtly refused. On April 14,

 2020, Papalini terminated Joseph for transferring funds from the Official Business

 Account without approval. A week later, on April 21, Joseph filed a state-court civil

 lawsuit formally seeking to regain control of the practice. On May 7, 2020, the state

 court issued an order declaring that the Joint Action Document governed and Papalini

 controlled Springs Medical. Despite the order, Joseph appeared at Springs Medical

 on May 28 and attempted to fire Papalini in a last-ditch effort to take over the

 practice. Police arrived to diffuse the situation and Joseph left the premises

 unsuccessful.

       On June 24, 2020, well after he ceded his financial duties and was formally

 severed from the practice, Joseph submitted another PPP loan application on behalf

 of Springs Medical. He represented himself as owner of the practice and requested

 $179,000 in relief. Instead of using Springs Medical’s EIN, Joseph’s application

 listed his own social security number. Despite his ouster, he claimed monthly payroll

 needs of $72,000, covering thirty-four employees. As to how the funds would be

 used, Joseph selected the “other” box on the application. He claims he believed this

 selection allowed him to utilize the funds outside the program’s restricted spending

 categories. Although he knew otherwise, Joseph also certified that Springs Medical

 had not received a prior PPP loan. The loan processor, Kabbage, Inc. (“Kabbage”),

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 approved the application and issued $179,000 to the Unauthorized Bank Account

 Joseph set up in March. Joseph admitted to ultimately using the money from both

 successful loans for his own benefit. After channeling the funds to his personal

 accounts, he misspent the relief on a range of goods and services, including vacation,

 home improvement, car payments, rent, child support, personal legal expenses, and

 adult entertainment.

       On March 17, 2021, a federal grand jury charged Joseph with four counts:

 embezzlement or theft of health care benefit program funds in violation of
18 U.S.C.

 § 669
(Count One); embezzlement or theft of government property in violation of
18

 U.S.C. § 641
(Count Two); wire fraud in violation of
18 U.S.C. § 1343
(Count

 Three); and false statements in bankruptcy in violation of
18 U.S.C. § 152
(3) (Count

 Four). The prosecution voluntarily dismissed Count Four prior to trial. Following a

 five-day trial in January 2023, the jury convicted Joseph of Count One, which was

 specifically predicated on fraud related to his AAP loan application; and Count

 Three, which was based on his misuse of the PPP loan system. The jury acquitted

 Joseph of Count Two. Joseph was sentenced to thirty months’ imprisonment,

 followed by three years of supervised release. The district court also ordered Joseph

 to pay restitution of $86,717.11 to CMS and $179,999 to SBA.

       III.   Analysis

              a. Sufficiency of Evidence

       This court reviews the sufficiency of evidence supporting a conviction de

 novo. United States v. Anaya,
727 F.3d 1043, 1050
(10th Cir. 2013). “We take the

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 evidence—both direct and circumstantial, and reasonable inferences drawn from that

 evidence—in the light most favorable to the government and ask only whether a

 reasonable jury could find the defendant guilty beyond a reasonable doubt.”
Id.
(quotations and alteration omitted).

       Count One of Joseph’s indictment required for conviction that he “knowingly

 and willfully embezzle[d], st[ole], or otherwise without authority convert[ed] . . . , or

 intentionally misapplie[d] any of the moneys, . . . of a health care benefit program.”
18 U.S.C. § 669
; United States v. Maynard,
984 F.3d 948, 962
(10th Cir. 2020).

 Similarly, Count Three of the indictment for wire fraud required he intentionally

 “devise[d] any scheme or artifice to defraud, or . . . obtain[ed] money or property by

 means of false or fraudulent pretenses.”
18 U.S.C. § 1343
; United States v. Hay,
95

 F.4th 1304, 1311
(10th Cir. 2024). Joseph asserts no direct evidence demonstrates he

 had intent to defraud or intentionally misapply funds from either federal relief

 program at the time he submitted his applications. Instead, Joseph claims his

 applications were intended innocently as a means of trying to regain control of

 Springs Medical from Papalini.

       Given the facts in this case, this court does not disagree with Joseph’s

 argument that focus must be on his intent at the time he submitted the applications.

 Importantly, however, he provides absolutely no authority to support his apparent

 contention that evidence of his actions before and after submitting the applications

 are not capable of demonstrating unlawful intent. Rather, “[b]ecause it is difficult to

 prove intent to defraud from direct evidence, a jury may consider circumstantial

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 evidence of fraudulent intent and draw reasonable inferences therefrom.” United

 States v. Bailey,
327 F.3d 1131, 1140
(10th Cir. 2003); see United States v. Magleby,
241 F.3d 1306, 1312
(10th Cir. 2001) (collecting cases for same rule in non-fraud-

 based intent crimes); see also United States v. Christy,
916 F.3d 814, 843
(10th Cir.

 2019) (highlighting importance of circumstantial evidence for determining intent

 under a sufficiency analysis). “[I]ntent may be inferred from evidence that the

 defendant attempted to conceal activity” and “[i]ntent to defraud may be inferred

 from the defendant’s misrepresentations, knowledge of a false statement as well as

 whether the defendant profited or converted money to his own use.” Bailey,
327 F.3d

 at 1140
(quotation omitted). It is the totality of the evidence, and the reasonable

 inferences drawn therefrom, which supports our sufficiency analysis. See Anaya,
727

 F.3d at 1050
. “Thus, even when a defendant, as here, denies having the requisite

 intent, a jury may disbelieve the defendant if his words and acts in the light of all the

 circumstances make his explanation seem improbable.” Magleby,
241 F.3d at 1312
(quotation and alterations omitted).

       Robust direct and circumstantial evidence exists to support Joseph’s

 convictions on both counts. Contrary to Joseph’s arguments, much of this evidence is

 contemporaneous to when he filed his applications. For instance, Joseph made

 numerous false certifications on the face of his applications, including that Springs

 Medical was suffering Medicare claims processing delays due to COVID-19; that he

 was authorized to apply for loans on Springs Medical’s behalf; and that the business

 had not previously received a PPP loan. He also set up a fraudulent bank account in

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  the practice’s name and moved tens of thousands of dollars from Springs Medical’s

  Official Business Account into his daughter’s account for the purpose of concealing

  his financial activity. He further attempted to disguise his transactions by using his

  home address on relief applications and by applying for funds under his social

  security number after learning that using the business’s EIN would prove fatal.

  Additionally, it is undisputed that Joseph primarily used the relief money for his own

  benefit. In violation of program rules that he certified he understood, he spent

  handsomely on personal legal expenses, home improvement, and phone sex

  operators, among many other things. His actions were knowingly in violation of the

  Joint Action Document and further contravened an ensuing state court order

  enforcing that document. The extensive evidence of Joseph’s misrepresentations,

  covert financial activity, and self-enrichment from the time of his applications and

  thereafter certainly supports a reasonable jury’s conviction on both fraud counts.

  Bailey,
327 F.3d at 1140
.

               b. Cross-Examination & Exhibit Introduction

        We review challenges to district court evidentiary rulings for abuse of

  discretion. United States v. Silva,
889 F.3d 704, 709
(10th Cir. 2018). An abuse of

  discretion occurs when the district court “renders an arbitrary, capricious, whimsical,

  or manifestly unreasonable judgment.”
Id.
(quotation omitted). Under this standard,

  “we will not reverse the district court without a definite and firm conviction that the

  lower court made a clear error of judgment or exceeded the bounds of permissible



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  choice in the circumstances.” United States v. Griffin,
389 F.3d 1100, 1103
(10th Cir.

  2004) (quotation omitted).

        Joseph argues the district court made two meaningful and improper evidentiary

  rulings. First, he asserts the district court inappropriately denied him the opportunity

  to fully cross-examine SBA counsel, Mary Beth Cvengros, and Kabbage employee,

  Valerie Martin. Specifically, Joseph intended to emphasize on cross that Kabbage

  had a practice of inadequately vetting relief applications and, therefore, made it

  easier for Joseph to obtain funds without scienter. Joseph further hypothesized that

  federal investigation into Kabbage’s due diligence practices impacted its motivation

  to participate in the trial. The district court determined Kabbage’s impropriety did not

  illustrate or affect Joseph’s underlying mens rea and refused further cross-

  examination on the matter. Second, Joseph claims the district court erred in denying

  his request to submit an exhibit of Springs Medical’s authorized PPP loan from May

  2020. Joseph suggested the exhibit would clarify the extent to which he was aware of

  a prior PPP loan when he applied for his second unauthorized loan in June 2020. The

  district court denied the introduction of the exhibit because it was not relevant to

  determining Joseph’s intent and it risked misleading the jury. Instead, the district

  court permitted Joseph to testify to his understanding of the situation without the loan

  document for support.

        District courts are given “broad discretion to limit the cross-examination” of

  witnesses. United States v. Pearson,
798 F.2d 385, 388
(10th Cir. 1986). Here, there

  was no “nexus” between Kabbage’s shortcomings as a lender and Joseph’s intent to

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  defraud federal relief programs. United States v. Jones,
213 F.3d 1253, 1261
(10th

  Cir. 2000); see also United States v. John,
849 F.3d 912, 918
(10th Cir. 2017)

  (holding limitation of cross-examination was proper when the proposed questioning

  was not “even marginally relevant” to the underlying issue at hand). Kabbage’s

  history of imprecise application review and the federal investigation thereof do not

  remotely relate to Joseph’s offenses. As the district court noted, it appears the desired

  cross-examination would serve only to deflect blame onto the lender. The negligence

  of another party “in failing to discover a fraudulent scheme,” however, “is not a

  defense to criminal conduct.” United States v. Svete,
556 F.3d 1157, 1167
(11th Cir.

  2009) (quotation omitted). Absent a viable connection between Kabbage’s behavior

  and Joseph’s fraud, we conclude the district court’s decision to limit the cross-

  examination of Cvengros and Martin was not arbitrary.

        Similarly, whether to exclude evidence is within the “sound discretion” of the

  district court. United States v. Perrault,
995 F.3d 748, 764
(10th Cir. 2021). Here, the

  district court reasonably concluded the introduction of the PPP loan exhibit did little

  to illuminate Joseph’s state of mind and would serve to support his unrelated theory

  that other people were at fault for his actions. See generally United States v. Keck,
643 F.3d 789, 795
(10th Cir. 2011) (upholding exclusion of exhibits on the grounds

  of “relevancy, waste of time, and confusion of the jury”). Further, this court struggles

  to find any prejudice in the district court’s determination given that Joseph was fully

  allowed to present his desired evidence through his own testimony. See
id.
In turn,



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  we conclude the district court did not abuse its discretion by excluding the Springs

  Medical PPP loan exhibit.

               c. Expert & Lay Testimony

        This court reviews a district court’s decision to admit or exclude expert

  testimony for abuse of discretion. United States v. Starks,
34 F.4th 1142, 1170
(10th

  Cir. 2022); see also Fed. R. Evid. 702 (describing rules governing expert testimony).

  Generally, Fed. R. Evid. 701(c) ensures that lay testimony is “not based on scientific,

  technical, or other specialized knowledge within the scope of Rule 702.” Lay

  witnesses are typically allowed to provide “observations that are common enough

  and require a limited amount of expertise, if any.” James River Ins. Co. v. Rapid

  Funding, LLC,
658 F.3d 1207, 1214
(10th Cir. 2011) (quotation and alteration

  omitted). “The prototypical example” of such evidence “relates to the appearance of

  persons or things, identity, the manner of conduct, competency of a person, degrees

  of light or darkness, sound, size, weight, distance, and an endless number of items

  that cannot be described factually in words apart from inferences.”
Id.
At trial, the government offered “certified fraud examiner,” Michael Petron, as

  a witness to explain Joseph’s banking transactions. Absent an expert designation, the

  district court allowed the prosecution to use Petron as a lay witness, provided he

  limited his explanations to relatively rudimentary arithmetic. Although Petron’s

  testimony largely relied on addition and subtraction, the scope of his testimony was

  broad and its content was detailed. After selecting a “conservative” methodology for

  tracking funds, Petron provided an in-depth portrait of “eight or nine” different bank

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  accounts based on analysis of “thousands of transactions.” His testimony provided a

  thorough summary of how Joseph’s various transactions related to one another and

  illustrated how the relief funds went from issuance to being spent on personal

  expenses.

        When considering math, a lay witness is free to provide testimony that utilizes

  “basic arithmetic.” Frappied v. Affinity Gaming Black Hawk, LLC,
966 F.3d 1038
,

  1057 (10th Cir. 2020) (holding that taking the median of several numbers qualified as

  basic); Bryant v. Farmers Ins. Exch.,
432 F.3d 1114, 1124
(10th Cir. 2005) (“Taking

  a simple average of 103 numbers, though technically a statistical determination, is

  not so complex a task that litigants need to hire experts in order to deem the evidence

  trustworthy.”). Testimony is no longer lay testimony, however, if it moves beyond

  basic mathematics by considering advanced topics or by requiring the selection of a

  mathematic methodology. See James River Ins.,
658 F.3d at 1214
(“Unlike taking an

  average, calculating depreciation requires more than applying basic mathematics.

  Technical judgment is required in choosing among different types of depreciation.”);

  LifeWise Master Funding v. Telebank,
374 F.3d 917, 929
(10th Cir. 2004)

  (classifying “moving averages, compounded growth rates, and S-curves” to be too

  technical for lay witness testimony). Still, merely possessing expert knowledge does

  not alone require a person to testify as an expert. ORP Surgical, LLC v. Howmedica

  Osteonics Corp.,
92 F.4th 896, 915
(10th Cir. 2024).

        Petron’s testimony went beyond the mathematic analysis permissible for lay

  witnesses in both scope and kind. Importantly, to conduct his testimony he had to

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  choose between multiple possible methodologies for tracing bank funds. Further, his

  testimony was based on a large-scale analysis of thousands of transactions across

  several different bank accounts. In Petron’s own words, his testimony became

  “increasingly complex” as he described additional funds flowing across various

  accounts. This appears to be exactly the type of “technical, or other specialized

  knowledge” that is reserved for expert witnesses. Fed. R. Evid. 702(a). Indeed, this

  court is doubtful that Petron’s testimony could be deemed within “the realm of

  common experience” as is required of lay testimony. United States v. Draine,
26

  F.4th 1178, 1188
(10th Cir. 2022) (quotations omitted).

        Nonetheless, “[a]n erroneous admission of evidence is harmless unless it had a

  substantial influence on the outcome or leaves one in grave doubt as to whether it had

  such effect.” United States v. Yeley-Davis,
632 F.3d 673, 685
(10th Cir. 2011)

  (quotation omitted). Prejudice is unlikely to arise when the record already contains

  evidence encapsulating the erroneous admission. See United States v. Pehrson,
65

  F.4th 526
, 543–44 (10th Cir. 2023); see also United States v. Charley,
189 F.3d 1251,

  1272
(10th Cir. 1999) (“In light of the strength of the properly admitted testimony,

  . . . we cannot say that the erroneously admitted portions of the testimony

  substantially affected the trial’s outcome.”). Here, bank records displaying Joseph’s

  transactions were admitted as exhibits. More substantially, a separate government

  witness, Special Agent Cory Rumple, testified at length to the contents of the bank

  account records and described in detail the movement of funds through Joseph’s bank

  accounts. Agent Rumple’s testimony also covered Joseph’s many expenditures of

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  relief funds on personal goods and services. Given that the jury received an

  alternative report of Joseph’s financial activity which captured Petron’s testimony,

  we conclude the district court’s error of allowing Petron to testify as a lay witness

  was harmless.

               d. Rule 404(b) Evidence

        “We review the district court’s decision to admit evidence under [Fed. R.

  Evid.] 404(b) for abuse of discretion.” United States v. Commanche,
577 F.3d 1261,

  1266
(10th Cir. 2009). Rule 404(b) forbids evidence of other bad acts to prove a

  person’s character, but it allows for such evidence to be admitted for the limited

  purposes of “proving motive, opportunity, intent, preparation, plan, knowledge,

  identity, absence of mistake, or lack of accident.” Generally, this court considers a

  four-factor test when determining the admissibility of evidence under Rule 404(b):

        (1) the evidence must be offered for a proper purpose; (2) the evidence
        must be relevant; (3) the trial court must make a [Fed. R. Evid.] 403
        determination of whether the probative value of the similar acts is
        substantially outweighed by its potential for unfair prejudice; and (4)
        . . . the trial court shall, upon request, instruct the jury that evidence of
        similar acts is to be considered only for the proper purpose for which it
        was admitted.

  United States v. Davis,
636 F.3d 1281, 1297
(10th Cir. 2011) (quotation omitted). We

  consider the admissibility of evidence under Rule 404(b) to be a “case-specific

  inquiry” and rely heavily on the district court’s “broad discretion.” United States v.

  Henthorn,
864 F.3d 1241, 1248
(10th Cir. 2017).

        At trial, the government sought to introduce evidence that, after the events

  underlying the charges set out in the indictment, Joseph withdrew $241,000 in

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  Medicare funds from Springs Medical’s Official Business Account without

  authorization in November 2020. Given Joseph’s argument that he intended to repay

  the federal relief funds he previously took, the prosecution aimed to use his

  withdrawal and subsequent failure to repay as evidence that his applications were

  intentionally fraudulent. The district court accepted this explanation, determining the

  evidence was offered for the relevant purposes of showing Joseph’s intent and lack of

  mistake. In its prejudice analysis, however, the district court recognized the

  withdrawal’s potential to mislead the jury and, thus, restricted the use of evidence

  related to the event. 1 The district court further offered a limiting instruction when the

  evidence was presented.

        This court cannot identify error at any step of the four-factor test used to

  analyze 404(b) rulings. The district court reasonably determined the government’s

  proffered purpose was legitimate and relevant to the underlying fraud claims. See

  United States v. Mares,
441 F.3d 1152, 1157
(10th Cir. 2006) (“Subsequent acts

  evidence is particularly relevant when a defendant’s intent is at issue.”). The

  Medicare withdrawal was responsive to Joseph’s defense and helped illustrate his

  earlier relief applications were not merely innocent requests he meant to refund when



        1
           The district court excluded “the introduction of whatever evidence or
  transcript or recording there is, that establishes that his explanation for [the Medicare
  funds withdrawal] is a lie . . . in the case in chief.” The court made this determination
  in part due to the Medicare funds withdrawal being “tied up” with the corresponding
  bankruptcy proceeding, which was only questionably relevant to Joseph’s criminal
  proceeding. The court further concluded that allowing additional evidence on the
  matter could “drift into what is, essentially, propensity evidence.”
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  the opportunity arose. The evidence was further relevant because it occurred in

  proximity to the crimes of conviction and was similar in nature to Joseph’s prior

  financial misdeeds. See Davis,
636 F.3d at 1298
(noting the probative value of other

  acts under Rule 404(b) that are similar in time, place, and nature to the underlying

  offenses). The district court also engaged in a prejudice analysis under Rule 403,

  which resulted in a restriction of related evidence to prevent jury confusion. Finally,

  the district court offered an appropriate and complete limiting instruction when the

  evidence was presented at trial. See, e.g., United States v. Cardinas Garcia,
596 F.3d

  788, 798
(10th Cir. 2010) (“We presume jurors will conscientiously follow the trial

  court’s instructions” (quotation omitted)). Accordingly, we are satisfied that the

  district court properly considered all necessary steps in its Rule 404(b) ruling and did

  not abuse its discretion in admitting the evidence.

               e. Jury Instructions

        This court reviews the refusal to give a requested jury instruction for abuse of

  discretion and will reverse only if prejudice results from such a refusal. United States

  v. Faust,
795 F.3d 1243, 1251
(10th Cir. 2015). “In order to assess whether the court

  properly exercised its discretion, we review the jury instructions de novo to

  determine whether, as a whole, they accurately state the governing law and provide

  the jury with an accurate understanding of the relevant legal standards and factual

  issues in the case.”
Id.
(quotation omitted).

        Joseph argues the district court erred by not specifically instructing the jury

  that failing to repay a debt is not a crime. He claimed that creating the distinction

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  between fraud and debt delinquency was fundamental to his defense. The district

  court declined the instruction, concluding that the government did not raise a failure-

  to-repay argument and the record did not otherwise support it. The district court

  further assured Joseph that it would exclude any argument which indicated

  nonpayment constitutes theft.

         “[A] defendant is entitled to an instruction if the evidence viewed in his favor

  could support the defense.” United States v. Toledo,
739 F.3d 562, 568
(10th Cir.

  2014). Here, however, no evidence or argument supported the inclusion of the

  instruction. This court is not persuaded the instruction was necessary to Joseph’s

  defense when it was unresponsive to any proposed argument, not relevant to the

  record, and the district court gave guarantees that any such argument would not be

  tolerated. See United States v. Bader,
678 F.3d 858, 873
(10th Cir. 2012) (similarly

  rejecting a jury instruction request that related to a “right . . . no way implicated” in

  the case). Given the proposed instruction’s complete lack of relevance, Joseph did

  not endure any prejudice as a result of its exclusion. The jury was provided “an

  accurate understanding” of the case and, therefore, we conclude the district court did

  not abuse its discretion in declining Joseph’s request. United States v. Crockett,
435

  F.3d 1305, 1314
(10th Cir. 2006). 2


         2
           Joseph analogizes his case to United States v. Britt,
79 F.4th 1280
, 1293
  (10th Cir. 2023), which concluded the trial court “abused its discretion in refusing to
  instruct the jury on imperfect self-defense.” There, this court emphasized the
  importance of “[g]iving full credence” to the defendant’s testimony when deciding if
  an instruction is warranted.
Id. at 1291
. Unlike this case, however, Britt’s jury

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               f. Loss Calculation

        “When reviewing a district court’s application of the Sentencing Guidelines,

  we review legal questions de novo and we review any factual findings for clear error,

  giving due deference to the district court’s application of the guidelines.” United

  States v. Craig,
808 F.3d 1249, 1255
(10th Cir. 2015) (quotation omitted). Here,

  Joseph challenges whether his first failed PPP loan application from April 2020 was

  relevant conduct as defined by U.S.S.G. § 1B1.3(a) 3 and, therefore, whether it should

  be included as “intended loss” under U.S.S.G. § 2B1.1(b)(1). The district court

  determined the similar nature, close proximity, and shared purpose of Joseph’s first

  PPP loan request qualified it as relevant conduct to his later, successful application. It

  included Joseph’s $500,000 loan request as intended loss, thereby increasing his

  assessment from § 2B1.1(b)(1)(G), covering offenses with losses exceeding

  $250,000, to § 2B1.1(b)(1)(H), covering offenses with losses exceeding $550,000. In

  turn, Joseph’s offense level increased by two points.

        Section 2B1.1(b)(1) contemplates both actual loss and intended loss. U.S.S.G.

  § 2B1.1 cmt. n.3(A). Intended loss includes “the pecuniary harm that the defendant



  instruction request was responsive to arguments made at trial and was supported by
  sufficient evidence. Id. at 1291–92. In contrast, Joseph’s request was not implicated
  by any argument made by the government, nor was it responsive to the evidence
  presented at trial.
        3
           Joseph arguably forfeited this challenge by exclusively arguing on appeal
  that his prior PPP loan application was not relevant conduct under § 1B1.3(a)(1). The
  district court, however, made clear it included the failed loan amount under the
  provisions of § 1B1.3(a)(2). Because we resolve this issue on de novo review, we
  need not determine if Joseph forfeited his claim.

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  purposely sought to inflict.” Id. at cmt. n.3(A)(ii). “In calculating loss under the

  Guidelines, the district court does not limit itself to conduct underlying the offense of

  conviction, but rather may consider all of the defendant’s ‘relevant conduct.’” United

  States v. Griffith,
584 F.3d 1004, 1011
(10th Cir. 2009). Relevant conduct for

  purposes of § 2B1.1(b)(1) includes “all acts and omissions committed . . . by the

  defendant” that “were part of the same course of conduct or common scheme or plan

  as the offense of conviction.” U.S.S.G. § 1B1.3(a)(1)–(2). 4 A “common scheme” is

  generally considered as two or more offenses that are “substantially connected to

  each other by at least one common factor, such as common victims, common

  accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3 cmt.

  n.5(B)(i); see also United States v. Damato,
672 F.3d 832, 845
(10th Cir. 2012). The

  “same course of conduct” refers to a more flexible set of acts that are “sufficiently

  connected or related to each other as to warrant the conclusion that they are part of a

  single episode, spree, or ongoing series of offenses.” U.S.S.G. § 1B1.3 at cmt.

  n.5(B)(ii); see also United States v. Garcia,
946 F.3d 1191, 1203
(10th Cir. 2020)

  (“We have opined that this same-course-of-conduct standard looks to whether the

  defendant repeats the same type of criminal activity over time, but does not require

  that acts be connected together by common participants or by an overall scheme.”

  (quotations omitted)).



        4
         Section 1B1.3(a)(2) governs “offenses of a character for which § 3D1.2(d)
  would require grouping of multiple counts.” Intended loss calculation under
  § 2B1.1(b)(1) is incorporated under § 3D1.2(d).

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        This court agrees with the district court’s determination that Joseph’s first

  failed PPP loan attempt qualifies as relevant conduct under either the common

  scheme or same course of conduct standard. Joseph’s first application was a near

  replica of his later submission; it was completed only three months prior to his

  second application; it seemingly had the same purpose to defraud relief programs for

  his own benefit; and it shared the same victim. See, e.g., United States v. Smith,
705

  F.3d 1268, 1275
(10th Cir. 2013) (describing how a fraudulent housing sale based on

  fraudulent loan applications amounted to relevant conduct); see also Damato, 672

  F.3d at 840–41 (looking favorably on temporal gaps substantially less than one year

  in analyzing same course of conduct qualifications). The two offenses are further

  correlated because Joseph’s first failed application informed him how to successfully

  submit his second. After learning that using Springs Medical’s EIN would result in a

  rejected application, Joseph used his own social security number in his second

  attempt.

        Contrary to Joseph’s arguments, there is no requirement that relevant conduct

  result in conviction when evidence fairly supports the presence of a common scheme

  or shared course of conduct. See § 1B1.3 cmt. n.5(A) (“Application of this provision

  does not require the defendant, in fact, to have been convicted of multiple counts.”);

  United States v. Altamirano-Quintero,
511 F.3d 1087, 1095
(10th Cir. 2007)

  (“Relevant conduct for sentencing purposes, therefore, comprises more, often much

  more, than the offense of conviction itself, and may include uncharged . . . conduct.”

  (quotation omitted)). Joseph’s applications were virtually identical in nature and were

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  separated by only three months. Thus, we conclude Joseph’s first PPP loan request

  was relevant conduct for purposes of the sentencing guidelines, and we perceive no

  clear error in the factual findings underlying the determination that he qualifies for an

  assessment under § 2B1.1(b)(1)(H). 5

        IV.    Conclusion

        The judgment of the United States District Court for the District of Colorado is

  hereby AFFIRMED.




        5
           On appeal, Joseph additionally argued that the cumulative error doctrine
  should apply. United States v. Garcia,
74 F.4th 1073
, 1130 (10th Cir. 2023)
  (“Cumulative error is present when the cumulative effect of two or more individually
  harmless errors has the potential to prejudice a defendant to the same extent as a
  single reversible error.” (quotation omitted)). Because there was but a single error,
  there could be no cumulative error.

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