Mark Hazelwood 177-Page Oversized Brief Filed July 1st by Prosecutors

Case: 18-6023 Document: 48 Filed: 07/01/2019 Page: 1
Case Nos. 18-6023, 18-6101, 18-6102
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
MARK HAZELWOOD (18-6023),
HEATHER JONES (18-6101),
and SCOTT WOMBOLD (18-6102),
Defendants-Appellants.
On appeal from the United States District Court

for the Eastern District of Tennessee
BRIEF OF THE UNITED STATES ∗
Charles E. Atchley, Jr.

Attorney for the United States
Acting under Authority Conferred
By 28 U.S.C. § 515
Francis M. Hamilton, III

Brian Samuelson
Assistant United States Attorneys
800 Market Street, Suite 211
Knoxville, TN 37902
(865) 545-4167
∗
The United States has filed its brief under seal, as previously authorized
by the Court, and has simultaneously filed a public version with appropriate
redactions. See Case No. 18-6101, Doc. 25-2; Case No. 18-6102, Doc. 52-2.
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................................................... vi
STATEMENT REGARDING ORAL ARGUMENT................................... 1
INTRODUCTION ...................................................................................... 1
STATEMENT OF THE ISSUES ................................................................. 2
STATEMENT OF THE CASE .................................................................... 5
I. Pilot, which sells diesel fuel to trucking companies, offered discounts

to sell more gallons. .......................................................................... 5
II. Defendants each worked in Pilot’s direct-sales division....................... 6
A. Heather Jones ............................................................................ 9
B. Scott Wombold ....................................................................... 10
C. Mark Hazelwood ..................................................................... 10
III. Defendants and numerous others participated in a scheme to

defraud Pilot customers of their promised discounts. ........................ 12
A. As early as May 2008, Jones joined the conspiracy to defraud

Pilot’s customers. ..................................................................... 14
B. Hazelwood had been informed about and specifically approved

the fraudulent scheme. ............................................................. 16
C. Wombold, too, approved fraudulent discounts. ......................... 20
D. The fraudulent scheme continued to grow through the

coordination of its participants. ................................................ 22
E. The scheme was discussed and promoted in sales meetings. ....... 26
1. October 2012 management meeting ................................... 26
i
2. November 2012 all-staff meeting ........................................ 28
3. February 2013 management meeting ................................. 33
IV. A federal investigation culminated in a search of Pilot headquarters,

after which Pilot commenced an extensive internal audit. ................. 34
V. In June 2014, Hazelwood contacted his former executive assistant

and insisted, falsely, that he “didn’t read” any trip reports. ............... 36
VI. Defendants were charged, tried before a jury, and convicted. ............ 38
A. Hazelwood’s defense strategy alleged his devotion to Pilot’s

reputation, his corporate leadership, and his absence of motive. . 39
B. The government sought to introduce three brief recordings

to rebut Hazelwood’s defense theory, and the district court
allowed the evidence. ............................................................... 43
C. Darren Seay, a Pilot employee, testified as a lay witness about

his development of data-aggregating tools for an internal audit
by Pilot and his use of those tools to determine the amount of
loss to certain customers........................................................... 47
D. After extensive deliberation, the jury returned split verdicts. ...... 49
VII. The court denied Hazelwood’s new-trial motion as untimely. ........... 51
VIII. Defendants were each sentenced within or below the applicable

Guidelines range calculated by the district court. .............................. 55
A. Hazelwood was sentenced to 150 months’ imprisonment. ......... 55
B. Wombold was sentenced to 72 months’ imprisonment. ............. 55
C. Jones was sentenced to 33 months’ imprisonment. .................... 58
IX. Defendants appealed....................................................................... 58
ii
SUMMARY OF ARGUMENT ................................................................. 59
ARGUMENT ........................................................................................... 64
I. The district court’s trial rulings were well within its discretion. ......... 64
A. The district court properly admitted recordings of Hazelwood,

at a corporate retreat, engaging in conduct inconsistent with
his purported devotion to Pilot’s success and reputation. ........... 64
1. The recordings were relevant under Rule 401 to rebut

Hazelwood’s lack-of-motive defense. ................................. 64
a. Hazelwood argued that he would not have committed

the fraud because he was devoted to Pilot’s success
and reputation............................................................ 65
b. The recordings were relevant to show that Hazelwood

was not deterred by risk to Pilot’s success or
reputation. ................................................................. 68
2. The recordings were admissible under Rule 404(b)

because rebutting a lack-of-motive defense is a permissible
non-propensity purpose. .................................................... 69
3. In the alternative, the recordings were admissible under

Rule 404(a)(2). .................................................................. 74
4. Rule 403 does not require exclusion of the recordings. ........ 76
a. As to Hazelwood, the recordings were more probative

than prejudicial. ......................................................... 76
b. Wombold was not prejudiced by the recordings. .......... 86
c. Jones was not prejudiced by the recordings.................. 90
B. The district court properly denied Jones’s motion to sever. ........ 93
iii
C. The district court properly admitted lay opinion testimony

from Seay. ............................................................................... 97
1. Seay’s testimony was admissible under Rule 701 as

lay opinion. ...................................................................... 97
2. The district court correctly admitted voluminous record

summaries of Pilot Profit and Loss Statements during
Seay’s testimony because they satisfied the requirements
of Rule 1006. .................................................................. 104
3. Even if erroneous, admission of Seay’s testimony was

harmless. ........................................................................ 105
D. A multiple-conspiracies instruction was not appropriate. ......... 107
1. The evidence at trial proved a single conspiracy................ 108
2. In any event, Jones concedes that any separate,

simultaneous conspiracies merged in 2012. ...................... 112
3. Jones did not suffer substantial prejudice. ......................... 114
E. The district court did not plainly err by instructing the jury
to disbelieve evidence not offered for its truth. ......................... 116
F. The district court did not abuse its discretion by refusing to

allow Wombold to admit recordings containing inadmissible
hearsay. ................................................................................. 118
G. The district court’s occasional references to the Medellín drug

cartel explained otherwise-abstract legal concepts and did not
unfairly bias the jury against defendants. ................................. 121
II. Ample evidence proving defendants’ guilt rendered any alleged

evidentiary errors harmless............................................................ 124
A. The strength of the evidence against Hazelwood rendered any

evidentiary errors harmless as to him. ..................................... 124
iv
B. The strength of the evidence against Wombold rendered any

evidentiary errors harmless as to him and also defeats his
sufficiency-of-the-evidence claim. ........................................... 128
C. The strength of the evidence against Jones rendered any

evidentiary errors harmless as to her. ...................................... 133
III. The district court properly exercised its discretion by denying

Hazelwood’s untimely motion for a new trial................................. 134
IV. Hazelwood and Wombold’s sentences are reasonable. ................... 140
A. The district court did not abuse its discretion by declining to

grant Hazelwood a downward departure for diffuse loss. ......... 141
B. Wombold’s sentence is procedurally reasonable. ..................... 144
1. The district court’s findings regarding loss amount and

victims attributable to Wombold were well-supported by
the evidence. ................................................................... 144
2. The district court did not rely on acquitted conduct when

imposing the sentence. .................................................... 148
V. Defendants have not proven any bias or partiality by the district

court that would warrant reassignment if this Court were to remand
for any further proceedings, nor any cumulative error warranting
reversal. ....................................................................................... 149
CONCLUSION....................................................................................... 157
CERTIFICATE OF SERVICE ................................................................ 158
RULE 32(a)(7)(B) CERTIFICATION ...................................................... 158
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS . 159
v
TABLE OF AUTHORITIES
Cases
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013) .............................. 85
Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d 171 (2d Cir. 2004) ... 101, 105
Barrett v. Detroit Heading, LLC, 311 F. App’x 779 (6th Cir. 2009) ................... 94
Bruton v. United States, 391 U.S. 123 (1968) .................................................. 88
Burlington N. R.R. Co. v. Nebraska, 802 F.2d 994 (8th Cir. 1986) .................. 104
Coffin v. United States, 156 U.S. 432 (1895) ................................................... 93
Daniels v. Lafler, 192 F. App’x 408 (6th Cir. 2006) ...................................... 120
Delaware v. Fensterer, 474 U.S. 15 (1985) ...................................................... 92
Delaware v. Van Arsdall, 475 U.S. 673 (1986) ................................................ 92
Dortch v. Fowler, 588 F.3d 396 (6th Cir. 2009) .............................................. 64
Elledge v. Bacharach Instr. Co., Nos. 91-1931, 91-1952, 1992 WL 205662

(6th Cir. Aug. 25, 1992)..................................................................... 76
Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225 (1st Cir. 2007) ....................... 85
Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014) ................................. 85
Gall v. United States, 552 U.S. 38 (2007) ..................................................... 140
Getsy v. Mitchell, 495 F.3d 295 (6th Cir. 2007) ............................................ 155
Gray v. Maryland, 523 U.S. 185 (1998) ......................................................... 88
Heno v. Sprint/United Mgmt. Co., 208 F.3d 847 (10th Cir. 2000) ................ 86, 90
Huddleston v. United States, 485 U.S. 681 (1988) ............................................ 83
vi
In re Air Crash Disaster, 86 F.3d 498 (6th Cir. 1996) ..................................... 118
In re DePuy Orthopaedics Inc., 888 F.3d 753 (5th Cir. 2018) ............................ 84
Joseph v. Publix Super Markets, Inc., 151 F. App’x 760 (11th Cir. 2005)............ 84
Kim v. Coppin State Coll., 662 F.2d 1055 (4th Cir. 1981) ................................ 86
Lavin v. Husted, 764 F.3d 646 (6th Cir. 2014).............................................. 151
Massaro v. United States, 538 U.S. 500 (2003) .............................................. 137
McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004) ........................... 85
Nicholson v. City of Warren, 467 F.3d 525 (6th Cir. 2006) ............................. 135
Paschal v. Flagstar Bank, 295 F.3d 565 (6th Cir. 2002)......................... 80, 81, 86
Phoenix v. Coatesville Area Sch. Dist., 683 F. App’x 117 (3d Cir. 2017) ............. 86
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380 (1993) ....... 135, 137
Quercia v. United States, 289 U.S. 466 (1933) ............................................... 123
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010) ........... 85
Richardson v. Marsh, 481 U.S. 200 (1987) .......................................... 79, 88, 93
Rogers v. City of New Britain, 189 F. Supp. 3d 345 (D. Conn. 2016) ................ 86
Smith v. United States, 568 U.S. 106 (2013) ................................................. 113
Solomon v. United States, 467 F.3d 928 (6th Cir. 2006) .......................... 149, 150
Strickland v. Washington, 466 U.S. 668 (1984) ...................................... 137, 139
Tompkin v. Philip Morris USA, Inc., 362 F.3d 882 (6th Cir. 2004).................. 124
United States v. Al-Din, 631 F. App’x 313 (6th Cir. 2015) .......................... 82, 83
United States v. Allen, 254 F. App’x 475 (6th Cir. 2007) ............................... 139
vii
United States v. Allen, 619 F.3d 518 (6th Cir. 2010) ...................................... 124
United States v. Asher, 910 F.3d 854 (6th Cir. 2018) ....................................... 73
United States v. Baker, 98 F.3d 330 (8th Cir. 1996) ......................................... 95
United States v. Bass, 460 F.3d 830 (6th Cir. 2006) ....................................... 139
United States v. Baylor, 517 F.3d 899 (6th Cir. 2008) ...................................... 94
United States v. Bistline, 720 F.3d 631 (6th Cir. 2013) ................................... 151
United States v. Blankenship, 382 F.3d 1110 (11th Cir. 2004)........................... 93
United States v. Blankenship, 775 F.2d 735 (6th Cir. 1985) .............................. 69
United States v. Bowman, 302 F.3d 1228 (11th Cir. 2002) ............................... 85
United States v. Brady, 595 F.2d 359 (6th Cir. 1979) ....................................... 76
United States v. Buentello, 423 F. App’x 528 (6th Cir. 2011) ............................ 71
United States v. Calderon, 127 F.3d 1314 (11th Cir. 1997) ............................. 115
United States v. Campbell, 279 F.3d 392 (6th Cir. 2002) ................................ 145
United States v. Carney, 387 F.3d 436 (6th Cir. 2004) ..................................... 70
United States v. Carson, 702 F.2d 351 (2d Cir. 1983) ...................................... 95
United States v. Castronuovo, 649 F. App’x 904 (11th Cir. 2016) ...................... 86
United States v. Caver, 470 F.3d 220 (6th Cir. 2006) ....................................... 83
United States v. Chambers, 441 F.3d 438 (6th Cir. 2006) ................................. 77
United States v. Chavful, 100 F. App’x 226 (5th Cir. 2004) .............................. 83
United States v. Clay, 667 F.3d 689 (6th Cir. 2012)......................................... 70
United States v. Cohen, 631 F.2d 1223 (5th Cir. 1980) .................................. 120
viii
United States v. Coleman, 188 F.3d 354 (6th Cir. 1999) ................... 142, 143, 144
United States v. Colon, 278 F. App’x 588 (6th Cir. 2008) ................................ 70
United States v. Cortinas, 142 F.3d 242 (5th Cir. 1998) ................................... 95
United States v. Cota-Luna, 891 F.3d 639 (6th Cir. 2018) .............................. 151
United States v. Cunningham, 679 F.3d 355 (6th Cir. 2012) .................... 124, 130
United States v. Curry, 536 F.3d 571 (6th Cir. 2008) ..................................... 140
United States v. Cuti, 720 F.3d 453 (2d Cir. 2013) .......................................... 99
United States v. Dhaliwal, 464 F. App’x 498 (6th Cir. 2012) .......................... 108
United States v. Dixon, 413 F.3d 540 (6th Cir. 2005) ................................. 64, 77
United States v. Durham, 902 F.3d 1180 (10th Cir. 2018)................................ 81
United States v. Eaton, 784 F.3d 298 (6th Cir. 2015) ..................................... 128
United States v. Ebens, 800 F.2d 1422 (6th Cir. 1986) ................................ 83, 84
United States v. Echavarria-Olarte, 904 F.2d 1391 (9th Cir. 1990) ................... 123
United States v. Frazier, 584 F.2d 790 (6th Cir. 1978) ..................................... 89
United States v. Frost, 125 F.3d 346 (6th Cir. 1997) ...................................... 139
United States v. Fultz, Nos. 95-5722, 95-5723, 95-5822, 1996 WL 273736

(6th Cir. May 22, 1996) ................................................................... 113
United States v. Gallo, 763 F.2d 1504 (6th Cir. 1985)................................. 94, 97
United States v. Ganier, 468 F.3d 920 (6th Cir. 2006).................................... 102
United States v. Gardiner, 463 F.3d 445 (6th Cir. 2006)................................... 95
United States v. Garner, 529 F.2d 962 (6th Cir. 1976) ................................... 134
ix
United States v. Ghazaleh, 58 F.3d 240 (6th Cir. 1995) .................... 107, 108, 112
United States v. Graham, 484 F.3d 413 (6th Cir. 2007) ................................... 96
United States v. Gray, 521 F.3d 514 (6th Cir. 2008) ...................................... 145
United States v. Greco, 734 F.3d 441 (6th Cir. 2013) ..................................... 144
United States v. Hamilton, 263 F.3d 645 (6th Cir. 2001) ................................ 145
United States v. Hardy, 643 F.3d 143 (6th Cir. 2011) ...................................... 70
United States v. Havey, 227 F. App’x 150 (3d Cir. 2007) ................................. 71
United States v. Haywood, 280 F.3d 715 (6th Cir. 2002) .................................. 70
United States v. Hughes, 505 F.3d 578 (6th Cir. 2007) ................................... 114
United States v. Hughes, 895 F.2d 1135 (6th Cir. 1990) ................................. 112
United States v. Jenkins, 593 F.3d 480 (6th Cir. 2010) ..................................... 73
United States v. Johnson, 634 F.2d 735 (4th Cir. 1980) .................................... 72
United States v. Jones, No. 94-3092, 1995 WL 351317 (6th Cir.

June 9, 1995) .................................................................................. 115
United States v. Kerley, 784 F.3d 327 (6th Cir. 2015) .................................passim
United States v. Landers, 39 F.3d 643 (6th Cir. 1994) .................................... 143
United States v. Landry, 631 F.3d 597 (1st Cir. 2011) ..................................... 90
United States v. Lash, 937 F.2d 1077 (6th Cir. 1991) ............................. 107, 114
United States v. LeMaster, 54 F.3d 1224 (6th Cir. 1995) ................................ 119
United States v. Long, 574 F.2d 761 (3d Cir. 1978) ......................................... 82
United States v. Macey, 8 F.3d 462 (7th Cir. 1993)........................................ 119
x
United States v. Maldonado-Rivera, 992 F.2d 934 (2d Cir. 1990) .................... 115
United States v. Martino, 664 F.2d 860 (2d Cir. 1981) ................................... 108
United States v. Mays, 69 F.3d 116 (6th Cir. 1995) ....................................... 117
United States v. McNair, 605 F.3d 1152 (11th Cir. 2010)................................. 81
United States v. McRae, 702 F.3d 806 (5th Cir. 2012) ..................................... 95
United States v. Medved, 905 F.2d 935 (6th Cir. 1990) .................................. 137
United States v. Mendez, 303 F. App’x 323 (6th Cir. 2008) ............................ 119
United States v. Merriweather, 78 F.3d 1070 (6th Cir. 1996)........................ 71, 77
United States v. Mireles, 442 F. App’x 988 (5th Cir. 2011)............................... 72
United States v. Munoz, 605 F.3d 359 (6th Cir. 2010) ............. 135, 136, 137, 139
United States v. Olano, 507 U.S. 725 (1993) .............................................. 79, 96
United States v. Owens, 159 F.3d 221 (6th Cir. 1998) ...................................... 82
United States v. O’Dell, 805 F.2d 637 (6th Cir. 1986) .................................... 134
United States v. Paniagua-Ramos, 135 F.3d 193 (1st Cir. 1998) ........................ 87
United States v. Patel, 485 F. App’x 702 (5th Cir. 2012).................................. 72
United States v. Renal Care Group, Inc., 696 F.3d 518 (6th Cir. 2012) ............. 149
United States v. Rigas, 490 F.3d 208 (2d Cir. 2007) ...................................... 101
United States v. Rivera, 900 F.2d 1462 (10th Cir. 1990) ................................ 155
United States v. Robinson, 390 F.3d 853 (6th Cir. 2004) ................................ 113
United States v. Robinson, 547 F.3d 632 (6th Cir. 2008) ................................ 114
United States v. Rogers, 769 F.3d 372 (6th Cir. 2014) .................................... 125
xi
United States v. Sadler, 750 F.3d 585 (6th Cir. 2014) .................................... 130
United States v. Seago, 930 F.2d 482 (6th Cir. 1991) ..................................... 134
United States v. Segines, 17 F.3d 847 (6th Cir. 1994) ................................ 71, 107
United States v. Shannon, 803 F.3d 778 (6th Cir. 2015)................................... 74
United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995) ..................................... 93
United States v. Simmons, 587 F.3d 348 (6th Cir. 2009) ................................ 140
United States v. Stewart, 628 F.3d 246 (6th Cir. 2010)................................... 131
United States v. Stubblefield, 682 F.3d 502 (6th Cir. 2012) ............................. 145
United States v. Stuckey, 253 F. App’x 468 (6th Cir. 2007) .............................. 83
United States v. Sutherlin, 118 F. App’x 911 (6th Cir. 2004) .......................... 105
United States v. Tarango, 396 F.3d 666 (5th Cir. 2005) ................................... 97
United States v. Tocco, 200 F.3d 401 (6th Cir. 2000) ....................................... 85
United States v. Triana, 468 F.3d 308 (6th Cir. 2006) ................................... 144
United States v. Uzenski, 434 F.3d 690 (4th Cir. 2006) .................................... 72
United States v. Valencia, 600 F.3d 389 (5th Cir. 2010) .......................... 101, 102
United States v. Vowell, 516 F.3d 503 (6th Cir. 2008).................................... 140
United States v. Walls, 293 F.3d 959 (6th Cir. 2002) .................................. 89, 96
United States v. Walter, 870 F.3d 622 (7th Cir. 2017)...................................... 71
United States v. Wardlow, 830 F.3d 817 (8th Cir. 2016) .................................. 86
United States v. Warman, 578 F.3d 320 (6th Cir. 2009) ................................ 156
United States v. Warner, 690 F.2d 545 (6th Cir. 1982) ........................... 107, 108
xii
United States v. Warner, 971 F.2d 1189 (6th Cir. 1992)................................... 93
United States v. Washington, 565 F. App’x 458 (6th Cir. 2014) ........................ 96
United States v. Washington, 715 F.3d 975 (6th Cir. 2013) ............................ 144
United States v. Weiner, 988 F.2d 629 (6th Cir. 1993) ..................................... 96
United States v. White, 492 F.3d 380 (6th Cir. 2007).........................97, 102, 103
United States v. Worthington, 698 F.2d 820 (6th Cir. 1983) ............................. 74
United States v. Young, 847 F.3d 328 (6th Cir. 2017) ............................. 117, 123
United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988) .................................... 115
United States v. Zipkin, 729 F.2d 384 (6th Cir. 1984) ........................... 76, 77, 82
Zafiro v. United States, 506 U.S. 534 (1993) .............................................. 93, 96
Statutes
18 U.S.C. § 1343 ........................................................................... 38, 50, 149
18 U.S.C. § 1349 .................................................................... 38, 50, 125, 149
18 U.S.C. § 1512(b)(3) ................................................................................ 50
18 U.S.C. § 3553(a) ............................................................................. 55, 140
Rules and Other Authorities
Fed. R. App. P. 28(a)(5) ............................................................................. 94
Fed. R. Crim. P. 14 .................................................................................... 93
Fed. R. Crim. P. 33 ........................................................................... 134, 136
xiii
Fed. R. Crim. P. 45(b) .............................................................................. 135
Fed. R. Evid. 401 ....................................................................................... 64
Fed. R. Evid. 402 ....................................................................................... 64
Fed. R. Evid. 403 ....................................................................... 44, 70, 77, 82
Fed. R. Evid. 404(a)(2) .................................................................... 43, 44, 74
Fed. R. Evid. 404(b) ..............................................................................passim
Fed. R. Evid. 405 ....................................................................................... 43
Fed. R. Evid. 611 ............................................................................ 64, 75, 92
Fed. R. Evid. 701 ..................................................................................passim
Fed. R. Evid. 702 ................................................................... 97, 98, 100, 102
Fed. R. Evid. 803(3) .....................................................................61, 119, 120
Fed. R. Evid. 1006 ............................................................................ 104, 105
McCormick on Evidence § 57 (3d ed. 1984) ..................................................... 76
U.S.S.G. § 1B1.3 ...................................................................................... 145
U.S.S.G. § 2B1.1 ...................................................................................passim
xiv
STATEMENT REGARDING ORAL ARGUMENT
Defendants have raised fact-intensive issues on appeal, and the record is
voluminous, so oral argument may assist the Court in reviewing those issues.
Accordingly, the United States acquiesces in defendants’ request for argument.
INTRODUCTION
“[T]he pie is gettin’ smaller.” (GX 518-A, A568.1) Mark Hazelwood,
then president of Pilot Travel Centers, LLC, was discussing the market for
diesel fuel during a 2012 meeting of the company’s direct-sales division.
(R. 358, Tr. 9119-21.) Pilot operates hundreds of truck stops nationwide and
sells billions of gallons of diesel fuel annually to trucking companies.2 (R. 424,
Tr. 10517-18.) But shipping weights were down, fuel economy was up, and
competition was fierce. (R. 358, Tr. 9119-21.) “[W]hoever’s buying a gallon
of diesel,” Hazelwood said, “we gotta get it, okay?” (GX 517-A, A567; see also
1
The abbreviation GX refers to a Government Exhibit, while JDX refers
to a Joint Defense Exhibit, and each exhibit so cited—other than recordings,
which have been provided to the Court consistent with 6th Cir. R. 10(d)—has
been reproduced in an appendix. Exhibit numbers in the 500s ending in –A,
like this one, refer to transcripts of recordings admitted into evidence—e.g.,
GX 518-A transcribes the recording admitted as GX 518.
2
In 2008, Pilot had about 300 truck stops or travel plazas; by the end of
2012, it had 475. (R. 424, Tr. 10517-18.) During that time, its annual sales of
diesel fuel grew from approximately 3.5 billion gallons to over 5.3 billion. (Id.
at 10518-19.) Hazelwood hoped to achieve annual sales of 10 billion gallons
by 2017. (GX 517-A, A567.)
1
R. 348, Tr. 8036 (“getting” a gallon means selling that gallon, i.e., getting more
business).) “[W]e have to go after every angle . . . .” (GX 517-A, A567.)
One of those angles, it turned out, was fraud. The scheme: inducing
trucking companies to purchase, and keep purchasing, diesel fuel from Pilot by
falsely promising discounted prices, but then secretly shorting those customers
on the promised discounts. More than a dozen Pilot employees pleaded guilty
to conspiring to commit wire or mail fraud based on their roles in that scheme,
and, at the close of a 27-day trial, a jury found that Defendants Mark
Hazelwood, Scott Wombold, and Heather Jones had also committed wire
fraud or conspired to do so. (R. 484, Verdict, 12376-78 (also convicting
Hazelwood of witness tampering).) All three defendants now appeal.
STATEMENT OF THE ISSUES
I. Whether the district court properly exercised its discretion to make

reasonable trial rulings. Specifically:
A. Admission of recordings. During trial, Hazelwood elicited

testimony that he cared about Pilot too much to engage in conduct
that might harm it. To rebut that defense, the government sought
to introduce evidence that Hazelwood had, in fact, engaged in
other conduct that might damage Pilot’s success and reputation—
specifically, recordings of Hazelwood making racist and
misogynist statements during a corporate retreat. Did the district
court abuse its discretion by admitting the recordings?
(Hazelwood Issues I, II; Wombold Issue 1; Jones Issue I.)
B. Severance. Jones was not present at the corporate retreat where

the recordings of Hazelwood were made, and the jury was
instructed that the recordings, which comprised a small fraction
2
of the evidence at trial, could not be considered against her. Did

the district court abuse its discretion by denying Jones’s motion for
severance? (Jones Issue II.)
C. Lay witness testimony. The rules of evidence allow lay witnesses

to offer opinions based on particularized knowledge gained
through personal experience. As part of an internal audit,
Pilot employee Darren Seay personally oversaw the creation of
data-processing tools to calculate the difference between the
discounts customers received and the discounts they were
promised. Did the district court abuse its discretion by allowing
Seay to testify as a lay witness about his use of those tools?
(Hazelwood Issue III; Jones Issue III.)
D. Multiple conspiracies. A district court need not give a multiple-

conspiracies instruction where only one conspiracy is alleged and
proven. Even assuming that the fraud here had started as separate
conspiracies, Jones concedes that they “merged into a broader
effort.” Did the district court abuse its discretion by declining to
give a multiple-conspiracies instruction? (Jones Issue IV.)
E. Evidence not offered for its truth. Wombold sought to introduce

certain emails merely to show they existed. In response to a
hearsay objection, he agreed that the jury should be instructed to
consider everything in the documents untrue. Did the district
court plainly err by instructing the jury accordingly? (Wombold
Issue 3.)
F. Evidence of Wombold’s state of mind. Wombold sought to

introduce a recording made 12 months after the wire transmission
underlying his wire fraud conviction. Did the district court abuse
its discretion by ruling that the “state of mind” exception to the
hearsay rule did not allow the recording? (Wombold Issue 3.)
G. References to the Medellín cartel. The district court used various

analogies at trial to clarify the parties’ arguments and to explain its
rulings, and it told the jury that its comments were not evidence.
Did the court plainly err by citing the Medellín drug cartel to
3
explain otherwise-abstract concepts of conspiracy law? (Wombold

Issue 3.)
II. Whether the evidence was sufficient to sustain Wombold’s conviction

for wire fraud (Wombold Issue 2) and to render harmless any erroneous
evidentiary rulings as to each defendant.
III. Whether the district court properly exercised its discretion by denying
Hazelwood’s motion for new trial as untimely where defendant filed it
130 days after the jury verdict and failed to establish excusable neglect
to justify the untimely filing. (Hazelwood Issue IV.)
IV. Whether the within-guidelines sentences imposed on Hazelwood and

Wombold are reasonable.
A. Hazelwood’s downward departure motion. A district court’s

decision to deny a downward departure is ordinarily unreviewable,
and this Court will only reverse such a decision if the district court
incorrectly believed that it lacked the authority to consider the
alleged mitigating circumstances or to deviate from the guidelines.
Here, the district court considered and rejected Hazelwood’s
argument that the allegedly-diffuse nature of the loss warranted a
downward departure. Did the district court abuse its discretion?
(Hazelwood Issue V.)
B. Loss attributable to Wombold. When challenging a sentencing

court’s factual findings regarding loss, the defendant bears the
heavy burden of showing that the court’s findings were outside the
realm of permissible calculation. Here, the district court found
that Wombold’s role in the scheme was to supervise others—
including Brian Mosher—and therefore held Wombold responsible
for losses caused by Mosher. Was the district court’s finding
clearly erroneous? (Wombold Issue 5.)
V. Whether defendants established any cumulative error requiring reversal

or any district court bias requiring reassignment. (Hazelwood Issue VI;
Wombold Issue 4.)
4
STATEMENT OF THE CASE
I. Pilot, which sells diesel fuel to trucking companies, offered discounts

to sell more gallons.
Pilot sells billions of gallons of diesel fuel annually to trucking
companies and offered discounted prices to attract and retain customers.
(R. 424, Tr. 10517-19.) As the company sales manual explained, “[f]uel is
a trucking company’s largest variable cost.” (GX 302, A420 (emphasis
original).) “Discounts on fuel give[] the trucking company an incentive to buy
fuel at Pilot . . . [and] play a major role in building gallons for Pilot.” (Id.,
A421.)
Discounts came in several forms. On a “cost plus” pricing plan, the
customer would pay an industry-determined wholesale index price (the “cost”)
plus a pumping fee (the “plus”).3 (R. 520, Tr. 13472-77.) A cost-plus-.02
discount, for example, meant that each gallon cost two cents more than the
wholesale index price and would necessarily be better for a customer than, say,
a cost-plus-.08 discount. (Id.) “Retail minus” pricing, by contrast, meant that
the customer would receive a fixed discount from the retail price advertised on
3
The “cost” in cost-plus was the Oil Price Information Service (OPIS)
contract average, derived by averaging the wholesale fuel prices supplying a
particular truck stop. (GX 302, A442; see also R. 429, Tr. 10874-82.) It was
calculated daily and varied by location, making it “difficult to compare” cost-
plus deals between competitors. (GX 302, A443.)
5
the truck-stop marquee. (R. 520, Tr. 13485-86.) Cost-plus discounts usually
yielded better prices for customers than retail-minus discounts. (Id.) Some
customers were offered “better of” deals to pay the cost-plus or retail-minus
price, whichever was lower. (Id.)
Customers could receive their discounts “off invoice” or through rebates.
(R. 520, Tr. 13480.) The first group received invoices that listed the number of
gallons purchased, applied the discounts, and calculated the amount owed.
(GX 302, A416; R. 520, Tr. 13478-80.) The second group paid full retail price
at the pump and received monthly rebates. (R. 520, Tr. 13480.) The direct-
sales division, headed by Hazelwood, administered both types of discounts.
(Id.)
II. Defendants each worked in Pilot’s direct-sales division.
Pilot’s direct-sales division was organized into sales teams, each covering
a different area of the country. (R. 374, Tr. 9930; R. 520, Tr. 13444;
JDX 1069, A739.) A realignment of the division in 2012 yielded this
organizational structure, in relevant part:
6
(See JDX 318-A, A731; R. 522, Tr. 13906 (Borden supervised “inside” staff).)
Each sales team had a director and at least one regional sales manager—
known as “outside” team members, because they traveled to visit customers
and were not based at Pilot headquarters in Knoxville, Tennessee—as well as
regional account representatives—“inside” team members—who provided
7
administrative support from headquarters. (R. 520, Tr. 13444-47; R. 336, Tr.
7506; R. 356, Tr. 8978.) The 2012 Northeast Sales team, for example, directed
by Arnie Ralenkotter, had four regional sales managers, three regional account
representatives, including Jones, plus three other “inside” sales representatives.
(JDX 318-A, A731.)
Hazelwood, who supervised the division, encouraged competition
between the sales teams as if they were “playing against each other.” (R. 374,
Tr. 9930.) The team “with the most points at the end of the game would win.”
(Id.) Each salesperson was expected “to push for sales as hard as [they] could”
and “find creative ways to get”—that is, sell—“as many gallons as possible.”
(R. 348, Tr. 8035-37; accord JDX 1118, A741.) Although the teams competed
against each other, they “also were all one team.” (R. 354, Tr. 8758.) To that
end, the entire direct-sales division—fewer than 50 people4 in both 2008 and
2012 (JDX 1069, A739; JDX 318-A, A731; R. 367, Tr. 9654-55)—attended
meetings or training together once or twice each year. (R. 336, Tr. 7264-66.)
Each outside sales representative had a weekly sales quota. (R. 348, Tr.
8038; R. 356, Tr. 9085-86.) Failure to meet that quota could incur a penalty
4
Although Pilot may have 26,000 total employees (Hazelwood Br. 1),
most of them necessarily operate the hundreds of Pilot truck stops and gas
stations nationwide.
8
(e.g. R. 348, Tr. 8037-38); success meant a “lot of happy people.” (GX 512-A,
A550.) Salaries were partially based on commission, up to a cap. 5 (R. 520,
13461-63; GX 409, 410, A467-534.) Commissions, in turn, were based on the
profitability of a salesperson’s deals with customers, as reflected on periodic
profit-and-loss, or P&L, statements: “The more you made on a customer,
the more you made on your salary.” (R. 520, Tr. 13462; see also id. 13461.)
Because inside sales team members did not directly negotiate deals with
customers, their salaries were linked to deals made by the outside sales team
members whom they supported. (Id. 13462-63; R. 429, Tr. 10704-06; see also
GX 410, A484-534 (showing Jones’s 2008-2011 commissions based on sales
by “Brian” and “Cathy,” the outside team members she then supported).)
Commissions were approved—and sometimes adjusted—by Hazelwood.
(R. 429, Tr. 10696-700; see, e.g., GX 409, A477-78.)
Defendants each had a distinct, integral role in the direct-sales division.
A. Heather Jones
From about 2007 to 2013, Jones was a regional account representative,
one of a small group of inside employees who worked closely together at Pilot
headquarters. (R. 522, Tr. 13904-05; R. 374, Tr. 9801-03; R. 336, Tr. 7285;
5
Hazelwood was an exception. He received 3.5% of Pilot’s after-tax net
earnings. (GX 401, A460.)
9
GX 103, A400.) For some time, Jones supported a sales team directed by
Brian Mosher, who reported either to Hazelwood directly, or to Hazelwood
through Wombold. (R. 336, Tr. 7291-92; see also JDX 1069, A739.)
B. Scott Wombold
Wombold was promoted to vice president of western sales in 2010 and
later to vice president of national accounts; in both positions, he reported
directly to Hazelwood. (R. 356, Tr. 8923-24; R. 358, Tr. 9270; R. 367, Tr.
9585-94, 9654-56; see also GX 203, 204, A401-04.) Beginning in November
2010, Wombold directly supervised Mosher’s sales team, including Jones.
(R. 356, Tr. 8924-25; R. 367, Tr. 9580, 9653-54; see also GX 204, A403-04.)
C. Mark Hazelwood
Hazelwood, who described himself as a “lead visionary and strategist”
for sales at Pilot, directly supervised Pilot’s direct-sales division, first as vice
president of sales and development, and later as president of the company.
(JDX 192, A728; R. 523, Tr. 14328-29.) He told other managers in 2012 that
Pilot’s new CEO had promised to leave direct sales within Hazelwood’s
purview: “I’m gonna leave you [Direct Sales] f**kers alone,” the CEO
reportedly said, and “all I want you to do is go f**kin’ sell a bunch of gallons,
make us a bunch of f**kin’ money.” (GX 508-A, A544.) “Ding, ding!”
Hazelwood said to his staff. (Id.)
10
To facilitate his ability to supervise the division, Hazelwood required
outside sales representatives to submit weekly trip reports regarding their
meetings with trucking-company customers. (E.g., R. 523, Tr. 14216-20.) As
early as December 2006, Hazelwood emailed his subordinates Arnie
Ralenkotter, John Freeman, and Brian Mosher: “As a reminder, I also want to
see all trip reports every week, received by Vicki [Borden] and Sherry [Blake]
before noon on Friday. We have to be seeing more customers per week than
ever before and I will be monitoring this weekly.” (GX 601 (emphasis added),
A589.) In May 2008, Hazelwood directed his assistant, Sherry Blake, to email
all direct-sales personnel about his preferred format for those reports. (R. 523,
Tr. 14218-19; GX 603-B, A590.) In August 2010, at Hazelwood’s direction,
Blake reminded staff that “trip reports are due by 12:00 pm eastern every
Friday.” (R. 523, Tr. 14219-20; GX 603-C, A592.) Blake also mentioned that
she would be sending two sets of trip reports to Hazelwood for his “review
while in Italy.” (GX 603-C, A592.)
The number of trip reports Hazelwood received each week depended on
the number of outside sales representatives in direct sales. (R. 337, Tr. 7706.)
In 2008, he received about 12 a week; in 2010, about 16; in 2013, about 30.
(Id.) Each report was no more than two pages long. (R. 523, Tr. 14252.)
11
Hazelwood sometimes responded via email to the trip reports. (See, e.g.,
GX 606-A (“Great job”), A593; GX 606-B (“Awesome great job Jay getem”),
A596; GX 606-C (“nice”), A600; GX 606-G (“Brian great job especially on
heartland The Crete tech issues piss me off”), A603; GX 606-H (“Great week
guys . . . ”), A608.) And he once emailed Blake to say he had already received
a particular trip report Blake said she had not received. (GX 606-D, A602.)
III. Defendants and numerous others participated in a scheme to defraud

Pilot customers of their promised discounts.
Within the competitive, quota-driven direct-sales division, numerous
employees and executives identified and exploited customers who were
unlikely to notice if the discounts they received did not match what they had
been promised. (See, e.g., R. 520, Tr. 13506, GX 2104, A711 (“Let’s sneak a
$.01 to the plus numbers . . . I am not telling the customers . . . I don’t think
they will notice.”).)6 The scheme specifically targeted customers “that couldn’t
track the discounts as well.” (R. 520, Tr. 13505.)
The scheme operated differently depending how a customer received its
discounts. Victims of “off-invoice fraud” had discounts withheld through
According to Pilot’s current president, “pennies matter.” (R. 424,

6
Tr. 10520-21.) “[W]hen you’re doing a lot of volume . . . a penny on 5 billion

gallons is $50 million.” (Id.) For example, Pilot repaid Smith Transport more
than $67,372 for shorting Smith four cents a gallon over a three-month period,
after Smith noticed the discrepancy. (R. 337, Tr. 7546-48, GX 1207, A669-78.)
12
fraudulently calculated invoices. For example, Ralenkotter promised customer
PI&I a discount of “cost plus .02 or retail minus .04,” but ordered Janet Welch
to “put them in [the billing system] as cost plus .04 retail minus .04.” (R. 520,
Tr. 13488-91; GX 1109, A664).7 Because PI&I was an off-invoice customer,
the fraudulent deal would have been applied to PI&I’s weekly invoices.
(R. 520, Tr. 13495-98; GX 1106, A663.)
Victims of “rebate fraud,” on the other hand, had discounts withheld
through fraudulently calculated rebate checks. For example, Midwest
Logistics was promised a “cost plus .03 retail minus .04” discount but was
given a “cost plus .08” discount. (R. 520, Tr. 13531-34.) Its monthly rebate
check was “short five cents per gallon for all the gallons that they purchased
that month.” (Id., 13534.)
Pilot’s billing system allowed for discounts to be “put in the system”
to facilitate automatic rebate calculations, but the rebate fraud centered on
“manual rebates”—so called because the rebate could be manually modified
before it was sent to the customer. (R. 336, Tr. 7257-58; GX 514-A, A562.)
7
Hazelwood incorrectly states that “PI&I had a deal to buy fuel at three
cents above ‘cost’—i.e., ‘cost plus $0.03.’” (Hazelwood Br. 9.) Ralenkotter
had proposed offering a cost-plus-.03 discount in an internal trip report, but his
offer letter to the customer shows that he ultimately offered cost-plus-.02.
(GX 1109, A664.)
13
Although a manual rebate could be legitimate “if done honestly,” the
conspirators used the term “manual rebate” to “indicate being dishonest with
the customer.” (R. 358, Tr. 9218-19, 9224; R. 361, Tr. 9335; R. 336, Tr. 7322-
24; accord R. 356, Tr. 8991-92.)
As the district court later stated, “the scheme was carried out . . .
through the use of Pilot’s name, Pilot’s brand, [its] prestige and reputation,
. . . computational abilities . . . , internal communication systems, financial
accounting systems, . . . and the very structure of Pilot,” all of which were
“commandeered to perpetrate the scheme to defraud.” (R. 733, Sent. Tr.
20297-98.) The scheme itself was at “a magnitude not often seen, in terms of
amount of loss, length of operation, number of people involved, and the use of
corporate infrastructure.” (Id., 20309; accord R. 741, Sent. Tr. 20765.)
A. As early as May 2008, Jones joined the conspiracy to defraud

Pilot’s customers.
In May 2008, Mosher told Jones via email, “We are going to give JTL
Trailers . . . Cost Plus .04 / .04 off retail,” although “[t]hey will think it is Cost
Plus .02 / .04 off retail.” (GX 1502 (ellipses original), A679.) Jones promptly
agreed: “OK.” (Id.) At trial, Mosher confirmed they “were telling [JTL] one
thing and in fact giving them something different” in an effort “to get
additional volume from them.” (R. 356, Tr. 8928-29.)
14
In addition to fraudulently misrepresenting JTL’s cost-plus discount,
Mosher and Jones then contrived to further underpay JTL. (R. 356, Tr. 8935-
40.) Jones sent Mosher a spreadsheet identifying the monthly rebates owed to
JTL under the concealed discount rate Mosher had chosen. (Id. 9034-37;
GX 1505, A680-82.) Mosher then revised the spreadsheet to further cut the
amount Pilot would pay, and returned it to Jones. (GX 1506, A683-85;
R. 356, Tr. 8937-39.) For example, Mosher reduced JTL’s October 2008
rebate from over $17,500 to $9,000. (Id.) But Mosher’s requested rebates
were round numbers that would be “huge red flag[s]” to customers, because
a properly calculated discount is unlikely to be a perfectly round number.
(R. 356, Tr. 8939-40.) So Jones adjusted the numbers to yield a rebate amount
near Mosher’s request, yet easily divisible into the number of gallons
purchased. (Id. 8932, 8939-40.) Mosher later told other Pilot employees how
indispensable Jones was to the scheme: if a customer was “sophisticated
enough to ask [for] a backup” showing the discounts at each location, Jones
would “make[] the backup equate” to whatever amount Mosher had specified
as the desired rebate. (GX 514-A, A555; R. 374, Tr. 9958-59.)
JTL was not an isolated case. Jones sent Mosher monthly rebate
spreadsheets every month from 2008 to 2012. (R. 374, Tr. 9928.) In July
2008, Mosher told Jones by email that, as to customer Hayes Transport, he
15
wanted “a manual rebate of Cost + .04 / Retail Minus .04” even though “[t]he
customer thinks the deal is Cost + .02 / Retail Minus .04.” (GX 2114, A714.)
Mosher also told Jones that she would “need to send a backup with the check”
(id.), thereby signaling that “she would need to go through the gyration every
month” to “make them believe that they’re actually getting the discount we
agreed to.” (R. 356, Tr. 9010-11; see also R. 374, Tr. 9958.) After trading
emails to confirm timing and other details, Jones wrote back, “cool.”
(GX 2114, A713.)
Mosher gave Jones similar instructions regarding Marathon Electric,
indicating that he had falsely promised them cost-plus-.03 but wanted her to
calculate the rebate as cost-plus-.045. (GX 2117, A715-16.) “OK,” Jones
responded. (Id.)
B. Hazelwood had been informed about and specifically approved

the fraudulent scheme.
Before Mosher began cheating customers out of the rebates to which
they were entitled, he discussed the idea with Hazelwood, his direct
supervisor, at least three times, starting in late 2007. 8 (R. 356, Tr. 8950-51,
8956, 9065; R. 374, Tr. 9928-29.) Hazelwood encouraged him to “do it,”
8
Mosher knew that another Pilot employee John Freeman, had already
“been doing this . . . with Western Express and others.” (R. 356, Tr. 8950.)
16
saying “we should do it as much as we can.” (R. 356, Tr. 8950-51.) Later,
Hazelwood asked whether Mosher had “done anything with manual rebates.”
(R. 358, Tr. 9213-14.) Mosher said that he had not, and Hazelwood
responded, “Damn it, I told you you need to do something on manual rebates.
Put together a list and let’s get going on it.” (Id.) Mosher testified that he
ultimately participated in manual-rebate fraud because he “knew it was
something the company wanted us to do.” (R. 374, Tr. 9929.)
Hazelwood and Wombold periodically met with their subordinates,
including Mosher, to review profit-and-loss statements that detailed each
salesperson’s customers, fuel purchases, and net profit per gallon. (R. 337, Tr.
7738; R. 522, Tr. 13838-39.) Mosher brought his manual-rebate spreadsheets
to these meetings to show Hazelwood and Wombold how much additional
profit he had generated for Pilot by fraudulently cutting customer rebates.
(R. 356, Tr. 9072-73; see also R. 424, Tr. 10586 (testimony from Kevin Clark,
another direct-sales employee, that during the P&L reviews he would tell
Hazelwood that customers were “not getting the deal they think they’re
getting”). In one such meeting, Mosher mentioned that his commission cap
prevented him from “profit[ing] from the fraud” so he was thinking about
ending his participation, and Hazelwood replied, “[t]hat wouldn’t be a very
good idea.” (R. 356, Tr. 9074.)
17
Hazelwood also directly approved fraudulent deals. In 2008, Janet
Welch emailed Hazelwood on Arnie Ralenkotter’s behalf, seeking permission
to offer customer Koleaseco a specific “better of” deal. (GX 902, A657.) “He
has offered cp [cost plus] .015 / retail minus .045 but we are setting it up as
cp .025 / retail minus .045,” Welch wrote. (Id.) After checking how many
gallons were at issue, Hazelwood wrote back, “ok.” (Id.)
Hazelwood was also informed of the ongoing fraud through weekly trip
reports. In 2010, for example, Mosher emailed a trip report to Hazelwood and
Wombold, among others, and indicated that manual rebates “[s]hould save
approx. 350k on the [A]ugust gallons.” (GX 606-C, A600; see also R. 356, Tr.
9070-71 (Mosher’s testimony that he was referring to “the amount we cheated
trucking companies out of.”).) “[N]ice,” replied Hazelwood. (GX 606-C,
A600.) And Jay Stinnett submitted a trip report saying he had “spent about an
hour and a half going through [a customer’s] optimizer. Two LARGE
mistakes, our discount wasn’t in correctly (at least what they assume they
receive manually).” (GX 606-B, A597.) A few days later, Hazelwood said,
“Awesome great job Jay getem.” (Id., A596.) Other trip reports sent to
Hazelwood likewise informed him that his Direct Sales subordinates were
deceiving customers into purchasing Pilot diesel fuel through false discount
promises:
18
• Fuel optimizer not real bright . . . . I will work up some aggressive

prices to move TA gallons. Good thing is I don’t actually need to
change our billing[.] they do not reconcile with fuel dispatch . . .
imagine that? (GX 1101 (Ralenkotter, July 11, 2008), A662.)
• [Competitor] TA recently in and of course offered “better of”

pricing[.] I will need to do the same[.] too bad since this was .045
discount and we made a bunch of money. I will tell them cp .03
and put it in as .04 with a .04 discount. (Id.)
• I had a good meeting . . . . As normal, she cried the blues about

fuel a little bit. She doesn’t really understand fuel discounts much;
I told her I would give her another half of a cent. She will never
know that isn’t going to happen. Between the two companies,
they are buying about 100K per month from us. (GX 611
(Stinnett, Oct. 8, 2009), A616.)
• TA was in and had offered a [cost] plus .005 retail minus .005. I
told him that I would match their deal. He did not even know their
current discount so I am going to tell him that I will change their
discount and make no changes. (GX 612 (Spiewak, Dec. 17,
2009), A620.)
• We are getting 88% of his business and all we can handle

logistically. . . . His discount is manual, and he asked for more,
which I will probably do in a few locations, as far as he knows.
(GX 615 (Stinnett, June 17, 2011), A623.)
Hazelwood was also told directly that customers were being cheated. In
2008, Tim Prins emailed Arnie Ralenkotter to report that he had offered Smith
Transport a “cost minus .02” deal. (GX 1201, A665.) Ralenkotter wrote
back, “Put the actual deal in pilot billing as cost plus 2 see if he notices.” (Id.
(emphasis added).) A few months later, Smith did notice. They complained to
Prins, who emailed Ralenkotter: “we’re in a situation at Smith. The deal we
19
quoted them, was not the deal that was implemented back in July. This
discrepancy was noticed this afternoon . . . .” (GX 1203, A666.) Quite simply,
as Ralenkotter testified at trial, they were “caught cheating Smith . . . on their
pricing.” (R. 337, Tr. 7542.) Prins and Ralenkotter told Dan Peyton what
happened. (R. 445, Tr. 11408-409.) Peyton, in turn, called Hazelwood to say
they’d “cheated the customer out of four cents a gallon.” (R. 445, 11409-410.)
Hazelwood said they’d “take care of it” (id., 11410), and Ralenkotter later
emailed Peyton and Prins, copying Hazelwood, directing that Smith be paid
“the difference between what they thought they got and what we ‘mistakenly’
were charging.” (GX 1205, A668.) Ralenkotter testified that he used the word
“mistakenly” so the sales representatives would know to “tell [Smith] that we
made a mistake to cover up that we cheated them.” 9 (R. 337, Tr. 7545.)
C. Wombold, too, approved fraudulent discounts.
In 2011, Jones sought permission, on Mosher’s behalf, to offer customer
Amerifreight a deep discount of cost-minus-.03. (GX 1602, A687.) Wombold
questioned the size of the account via return email, Mosher replied, “Manual
Rebate,” and Wombold immediately approved the deal:
9
Scheme participants often concealed their fraud by telling customers
that any discrepancies they detected were the result of a mistake. (See, e.g.,
GX 521-A, A570-71; R. 521, Tr. 13718-27, 13732-45, 13872-74.)
20
(Id. (highlighting added); see also GX 1603, A690 (email showing that, at the
same time Wombold approved the deal, another Pilot employee described the
gallon quantities at issue).)
They were talking in code, Mosher later explained: “The cost minus .03
was irrelevant. It was a manual rebate, so [Wombold] would know that we
would cut the discount anyway.” (R. 356, Tr. 8975.) Mosher testified that
when Wombold approved the manual rebate, Wombold was also approving
21
the plan to “manually cheat that customer on a monthly basis, going forward.”
(Id. 8989-90.)
The jury heard other evidence that Wombold understood and approved
Mosher’s use of manual rebates to cheat customers. For example, in 2012,
Wombold wanted to reduce customer Ryder’s discount and therefore flagged
the account as “a great account” for Mosher. (GX 1801, A694.) Mosher
testified at trial that Wombold wanted him “to apply a manual rebate on the
cost plus side of Ryder’s discount” and instructed him to “keep Ryder’s rebate
at or below $100,000 a month.” (R. 356, Tr. 9016-17, 9023-24.) The result
was a “completely made up” discount “i[n] no way representative” of the deal
Ryder had been promised. (Id.)
Later, after the FBI had searched Pilot headquarters, Wombold talked
with Lexie Holden, an inside account representative, about Mosher’s conduct.
(R. 445, Tr. 11485-86.) Wombold told Holden that “he was aware that rebate
adjustments were happening, but that . . . if he [Wombold] was guilty of
anything, it was sticking his head in the sand.” (Id.)
D. The fraudulent scheme continued to grow through the

coordination of its participants.
Over time, more people were brought into the conspiracy. For example,
Jones spoke with Holden about “how Brian Mosher likes his spreadsheets.”
22
(R. 445, Tr. 11477-79, 11530-32.) Using a “template” that her supervisor Vicki
Borden had helped her create, Jones taught Holden how to make spreadsheets
showing customer rebates, how Mosher would make adjustments to those
rebates, and how Holden should create a “manipulated spreadsheet” to reflect
the fraudulent rebate amount. (Id.) Holden, in turn, taught Kevin Hite, a new
hire, about the practice of manually manipulating rebates, so he wouldn’t be
blindsided by Hazelwood, with whom he was scheduled to travel for business.
(R. 445, Tr. 11466-69, 11471-74; GX 2151, 2181, 2186, A717-18, 721-22;
see also R. 521, Tr. 13715 (testimony from Chris Andrews that, as a new
employee, he was taught how to manipulate rebates while visiting customers
with Jay Stinnett).) And Ralenkotter instructed Welch, Holden, and Mann to
communicate with each other to ensure that they tracked their deceptive
manual rebate reductions on similarly organized spreadsheets. (R. 336, Tr.
7263-64; GX 2187, A723-24.)
The scheme’s success required coordination by its participants; detection
was likely without it. For example, Katy Bibee told Freeman in 2010 that
Queen Transportation’s owner was “begging” for an “extra penny” or “won’t
be able to renew his [letter of credit],” then added, “[t]his guy thinks we took
him from [cost-plus] .03 to [cost-plus] .04 but really he is getting [cost-plus]
.08.” (GX 715, A625-26; R. 522, Tr. 13893-95.) Freeman told Bibee to “[t]ell
23
him I said the extra .01 is fine” but “[d]on’t change his deal.” (Id.) Bibee then
promised Queen a cost-plus-.03 discount, although she knew that Queen
would actually receive a discount that was five cents worse per gallon.
(GX 716, A627; R. 522, Tr. 13894-97.) When the Queen account was
reassigned to Jay Stinnett and Holly Radford in June 2010, Freeman warned
them to be “careful” because “[h]e’s not getting what he thinks.” (GX 717,
A628.) Stinnett told Radford, “we just need to sing from the same hymn
book.” (GX 718, A629; R. 522, Tr. 14028-29.)
Stinnett continued defrauding Queen, despite difficult economic
conditions in the region, which he mentioned in a trip report to Hazelwood in
July 2011: “The vibe I got in the Hickory area is that a lot of guys are really
struggling. There has been about 5 guys shut their doors in the last 45 days.”
(GX 720, A635.) Stinnett reported that he “gave Mike another penny to cost
plus $ .07, or cost plus $ .03.” (Id., A633.) Radford, also copied on the trip
report, testified that it meant Stinnett “discussed with the customer that he is
getting the cost plus .03, but . . . [was] going to give him cost plus .07 instead,
which is a worse discount.” (R. 522, Tr. 14031.) But in 2012, another Pilot
employee accidentally revealed on a sales call to Queen Transportation that
Queen was receiving a cost-plus .07 discount. (R. 522, Tr. 14033-34; GX 723,
A638.) Stinnett assured Queen that it was receiving the proper discount
24
(R. 522, Tr. 14035-37; GX 724, A642), and Freeman recounted the story in
February 2013 to Andrews and Greco as a cautionary tale that stressed the
importance of coordination “to keep playin’ the same game.” (R. 521, Tr.
13716-27; R. 522, Tr. 14038-42; GX 521-A, A570.)
Recognizing the risk of accidentally disclosing the scheme to victimized
customers, Welch looked for ways to remind her co-conspirators before sales
calls which customers were being defrauded. (R. 520, Tr. 13512-16; R. 336,
Tr. 7485-86.) In a May 2008 email that copied her supervisor Borden, Welch
asked whether there was room in Pilot’s system to “insert an * or something to
flag a customer so when the guys are looking at their hard copies of the P&L
that would help them remember that the discounts or information is different
than the customer thinks.” (GX 2109, A712.)
In addition to reducing the risk of detection, coordination also eased the
burden of executing the fraud. In 2010, Borden emailed all the inside sales
employees—including Jones—to say that management had agreed to hire
“a couple additional individuals to help alleviate some of the day to day tasks
that keep us from selling and focusing on gallon growth.” (GX 2169, A719;
R. 522, Tr. 14019-20.) Borden asked for ideas of tasks that could be delegated
to those new hires, e.g., “[g]enerating manual rebates to send to each inside rep
to modify for approval.” (Id.)
25
By 2012, the scheme pervaded the Direct Sales division. (See, e.g.,
R. 445, Tr. 11476-86; R. 522, Tr. 14033-38; GX 521-A, A570-73.) And it
would likely have continued unchecked, but for the federal investigation.
(R. 522, Tr. 14014-15.) Indeed, management and sales meetings in late 2012
and early 2013 showed that Hazelwood and his top executives, including
Wombold, intended to hasten the scheme’s expansion.
E. The scheme was discussed and promoted in sales meetings.
1. October 2012 management meeting
In October 2012, the management team of the direct-sales division—
including Hazelwood and Wombold, though Hazelwood was not present at
the outset—met at Freeman’s lake house to plan the next all-staff meeting,
among other things. (R. 356, Tr. 9035-56; GX 503-A, A535.) Prior all-staff
meetings had featured Hazelwood presenting “mountains of information,” and
Freeman proposed “breakout” sessions where each manager would teach their
“best thing.” (GX 503-A, A535-36.) Mosher, who had developed a reputation
for aggressive manual rebates10 (R. 356, Tr. 9038-39), was selected to lead a
session on that topic. (GX 503-A, A536.) Freeman noted that Mosher “never
had to buy an airplane,” though Freeman “had to buy an airplane one time to
10
For example, Mosher defrauded 74 customers in July 2010 alone.
(R. 367, Tr. 9609-10.)
26
correct Manuel.” (Id.) “Manuel,” sometimes transcribed “man-well,” was a
play on the words “manual rebate” and was often used to refer to defrauding
customers. (R. 358, Tr. 9119; R. 361, Tr. 9291; GX 521-A, A572.) Mosher
understood he was to “[t]each the subordinates how to manipulate the
customer’s discount without their knowledge.” (R. 356, Tr. 9040-41.)
When Hazelwood arrived, Freeman told him about their plan for each
manager to “take a category” and teach for 30 to 45 minutes in a breakout
session during the all-staff sales meeting. (GX 509-A, A545.) Again stating
that “we’re not going to buy any airplanes,” Freeman said Mosher would
teach a session on manual rebates, and Hazelwood agreed. (Id.; accord R. 356,
Tr. 9077-78.)
Freeman’s repeated allusions to buying an airplane referenced a time he
had been caught deceptively reducing Western Express’s discounts. (R. 356,
Tr. 9038; see also GX 506-A, A540-41.) To placate and compensate that
customer, Pilot bought an airplane from Western Express. (Id.) Mosher
testified that he understood he should “[m]ake sure we had something in the
. . . session about being careful and not getting caught.” (R. 356, Tr. 9040-41.)
At the same meeting, Freeman urged his colleagues to “say what you do
and do what you say,” with the exception of manual rebates, which he called
“liars poker with funny money”:
27
[M]y next comment was, ‘say what you do and do what you
say’ . . . I am a huge fan of, when . . . you say you’re gonna do
something, you f**king have to do it. . . .
Now, again I’m not talking about manual stuff. I mean, hey, it,
this is a game. We’re playin’ f**kin’ poker with funny money, and
it’s liars poker with funny money because of all this cost-plus stuff.
(GX 506-A, A539.) Despite an alleged desire to “say what you do and do
what you say,” “manual rebates were the exact opposite of that. It was do
what you want and say what you want.” (R. 356, Tr. 9045-46.)
2. November 2012 all-staff meeting
During the November 2012 all-staff sales meeting, Mosher taught a
breakout session on manual rebates: “how to target unsophisticated trucking
companies, how to cheat them out of their due rebate, and how to get away
with it.” (R. 356, Tr. 9042-43; see also GX 514-A, A552-62; R. 358, Tr. 9096-
9114; R. 336, Tr. 7264-7304; R. 522, Tr. 14057.) Both Jones and Wombold
attended the session; Wombold was then Mosher’s supervisor and was the
highest-ranking Pilot executive present. (GX 514-A, A552-62; R. 356,
Tr. 8924; R. 354, Tr. 8862.)
Mosher urged his audience to consider the sophistication of the customer
before deciding whether to “jack with his discounts”:
Some of ‘em, some of ‘em don’t know what a spreadsheet is.

I’m not kiddin’.
28
So, again, my point is this: Know your customer. Know what

you’re sending him, know what his preferences are, know how
sophisticated he is, okay? If, if the guy’s sophisticated and he truly
has gone out and gotten deals from the other competitors and he’s
getting daily prices from us, don’t jack with his discounts, ‘cause
he’s gonna know, okay? But the guy that’s just sayin’, “Cost-plus,
cost-plus, cost-plus, I need cost-plus.” “Why do you need cost-
plus and what do you know about cost-plus? How’s cost-plus
compare to retail-minus over the last three months?” “I don’t
know, but [competitor] Love’s is sayin’ it, so I need it.”
Solution: Tell him we can do it. Tell him we can do it on a rebate.
(GX 514-A, A553.)
“[I]t’s an art, it’s a feel, it’s do what you can,” Mosher said, describing
the manual rebate process, saying he would only “move a penny” for some
customers but 15 cents for others. (GX 514-A, A554.) “[D]on’t ever expose
yourself,” he warned. (Id.) “Do what you can do.” (Id.; accord R. 358, Tr.
9100; R. 336, Tr. 7274 (Welch’s testimony that she understood Mosher to say
“Make as much as you can without being caught”).)
Mosher described in detail how he used a manual rebate spreadsheet and
the P&L—or profit-and-loss statement—to decide whether to cut a rebate:
Studor: . . . help me understand exactly what you’re doin’ with this,

this spreadsheet.
Mosher: . . . go to the first column after customer, okay? And you’ve

got August gallons, right? . . . that customer did 100,000
gallons and his price fetch for the month was runnin’ at,
whatever it is, cost-plus-4-okay? And at cost-plus-4 . . . , [the]
rebate would’ve been $25,000. Okay? 25-cents a gallon at a
cost-plus-4 for $25,000. . . . I’m lookin’ at history back here,
29
so I can see July’s numbers when I’m doin’ this. Add it up.
He did 110,000 gallons in July and his rebate was only
$12,000. . . . then I ask myself, “Is this customer a customer
that I send a daily price fetch to? Does he buy from anybody
else? Does he have any idea what cost-plus-4 means to his
business?” Nope. Has no clue. Absolutely no idea.
Well, do I want to pay him $25,000? Maybe. Am I tryin’ to

gain business from him . . . ? . . . Or, is he a guy that’s buyin’
35% from me, 35% from TA, and 35% from Love’s and I
just don’t wanna pay him $25,000.
Jones: And you look at your P&L.
Mosher: And I look at my P&L, and my P&L says, “Huh. I’m payin’
him $25,000 and we made $25,000 on it.” That’s not a very
good deal for me. I’ll probably cut this one down to like 21.
This customer is not a very sophisticated buyer and

he doesn’t know what we’ve done here, right?
Radford: Right.
Mosher: But, he is sophisticated enough to ask me to provide him a

backup. That’s why we have to go this gyration, because
then I send this back to Heather and Heather makes the
backup equate to $20,996.63. And it shows all of the
discounts on each location, because that’s what the
customer’s asked for.
Welch: And you never send a backup unless you absolutely – get
hinky.
(GX 514-A, A555.)
Jones’ comment about “look[ing] at your P&L” highlighted “a key part”
of Mosher’s strategy. (R. 358, Tr. 9104.) “We wanted the guys to look at their
P&L, to know the profitability on the account prior to making the cuts to the
30
customer discounts,” Mosher explained later. (Id.) “Jones knew the process in
which I calculated – cut manual rebates. I would always look at my P&L
summary to see the profit on the account prior to making discount cuts on the
manual rebate spreadsheet.” (Id.)
Mosher acknowledged that salespeople would have to “get [their] arms
around the thought process” behind adjusting customer rebates, and offered
the rationalization he used to “ma[k]e peace” with it:
I’m sending cost-plus pricing to a guy that has absolutely no idea

what cost-plus pricing is. He’s heard it, he doesn’t have a clue
what it means to him, or his business . . . he doesn’t know what it
means. And he’s not gonna take the time to know what it means,
‘cause, frankly, he’s lazy, and he doesn’t care. But he’s heard the
buzz word long enough to know, “This is valuable and I should
have cost-plus pricing.”
That guy does not deserve premium pricing from us, in my opinion,
because he’s not willing to go back and do all the work on it.
(GX 514-A, A556.)
Wombold offered a similar rationalization:
. . . let’s say a guy’s doin’ $25,000 rebate, $25,000 rebate, and all
of a sudden your gross margin goes out to 75-cents because
somethin’ happens and the market tanks. We’re paying that guy
$25,000 this month, $25,000 that month, and all of sudden he’s
gonna get a $75,000 rebate, you gotta look at that and go, “Man,
I don’t know.” You take that guy to $35,000, he’s gonna go, “I
feel pretty good.” We don’t need to pay that guy $75,000.
(GX 514-A, A557.) Mosher later recalled that Wombold “was confirming
[his] presentation to that point.” (R. 358, Tr. 9105.)

31
Jones also spoke, observing that most customers would not ask for
backup for the rebates they received: “And to the point of them not knowing,
. . . very few of ‘em actually ask for backup. I would say less than 10%.” (GX
514-A, A558; R. 358, Tr. 9106-07.)
When a new hire said he was “struggling with the gray part” of Mosher’s
teaching, Wombold told him to “get . . . comfortable with that.” (GX 514-A,
A559-60.) He continued:
Brian [Mosher] and I have worked as close together as anybody,

I might be a little more in your camp, and here’s what I might
do . . . . maybe you talk to the customer and say, say, “Hey, if our
margins blow out, I’m gonna cap your rebate.” . . . . And it’s you
gotta wrap your mind, to Brian’s point, what works best for you
and how you utilize this information. The spreadsheet is a great
tool. And it will, if nothing else, keep[] you in tune with what’s
happenin’ with this customer’s margin. You got a guy that has
50 trucks and all of sudden he’s getting a 50-cent rebate and you’re
makin’ 10-cents a gallon, something in your head ought to go,
“There’s somethin’ not fair about this. I’ve got a $9 million facility
here, and now all of sudden this guy’s gettin’ 50, 60, 70, whatever,
cents a gallon rebate and I’m gettin’ 9-cents.” And I maybe just
tell your customer that, “I’m gonna give you a cost-plus up to a
certain amount, and then I’m gonna have to claw some back.”
(GX 514-A, A560.) Wombold did not disavow Mosher’s encouragement
of deceptive conduct, but instead communicated that he knew exactly what
Mosher was advocating, “hav[ing] worked as close [with Mosher] as
anybody,” and he urged the new hire to “get [his] mind comfortable with”
32
what Mosher was teaching and to “wrap [his] mind” around “how [to] utilize
this information.” (Id.)
During a separate session during the all-staff meeting, Hazelwood told
some employees about a new hire expected to bring new customers with him.
(GX 517-A, A563.) “[W]e’re gonna introduce him to a guy by the name of
Manuel,” Hazelwood said. (Id., A567.)
3. February 2013 management meeting
In February 2013, Hazelwood and Wombold attended a directors-and-
above management meeting for the direct-sales division. (R. 358, Tr. 9122-24;
GX 522-A, 523-A, 524-A, A574-83.) During the meeting, Hazelwood
proposed expanding the scheme by having his subordinates prepare
comprehensive lists of unsophisticated and sophisticated customers, i.e.,
“everybody who’s not watchin’ his own cost-plus . . . [a]nd then everybody
that does watch.” (R. 358, Tr. 9131-38; GX 523-A, A581.) Hazelwood
described these customer groups as “Customer A, Customer B. Customer A
. . . looks [in] every orifice you have, Customer B doesn’t even know you have
an orifice.” (GX 522-A, A579.) Immediately following the meeting, while
speaking with Freeman, Wombold, and Mosher, Hazelwood labeled the
expanded scheme: “Aunt Bea. That’s what we’ll call this, Aunt Bea pricing.”
33
(GX 524-A, A582.) He then said, “We got Manuel, Manuel does a helluva
job. Wonder around what percent of our volume’s on Aunt Bea?” (Id.)
Two days later, Hazelwood replied to Freeman’s meeting summary by
reiterating “lets get cost plus B plan going ASAP thanks.” (GX 2217, A725.)
In other words, Hazelwood directed his subordinates to take the existing fraud
“to the next level.” (R. 358, Tr. 9135.) And that is what they had understood
during the meeting:
Stinnett: You’re takin’ advantage of our advantages.
Freeman: Sellin’ it to ‘em the way they wanna buy.
Mosher: Our advantage is their ignorance.
Stinnett: Yeah, AKA, we’re f**kin’ ‘em.
(GX 522-A, A580; R. 374, Tr. 9961-62; cf. GX 506-A, A541 (Freeman’s
statement about manual-rebate customers at the October 2012 management
meeting: “F**k ‘em early and f**k ‘em often!”).)
IV. A federal investigation culminated in a search of Pilot headquarters,

after which Pilot commenced an extensive internal audit.
As part of a lengthy investigation that involved, among other sources,
a Pilot insider wearing a recording device, federal agents executed a search
warrant at Pilot headquarters in April 2013. (R. 336, Tr. 7413-20; R. 424,
Tr. 10451-52; 10469-70.) Hazelwood met with federal agents that same day
34
and was told that the FBI and IRS were investigating a federal criminal offense
“generally concern[ing] manual rebates to diesel fuel customers.” (R. 445, Tr.
11449.) When agents asked about the term “manuel,” Hazelwood described it
as “the method of applying the art, of determining the discount for a
customer.” (Id., 11450-51.) Although Hazelwood had personally approved
Mosher’s teaching manual rebates to a breakout session at Pilot’s November
2012 sales meeting – which he knew would have numerous employees with
less than a year’s experience at Pilot – Hazelwood told the agents that he did
not know whether that “art” was taught to new sales employees. (GX 509-A,
A545-46; R. 356, Tr. 9077-78; GX 512-A, A549; R. 445, Tr. 11450-51.)
Immediately after the execution of the search warrant and the seizure of
tens of thousands of business records, Pilot commenced an internal audit, on
its own initiative, of more than 7,000 customer accounts to determine which
customers may have been defrauded by the scheme and to “pa[y] [them] back
as soon as possible.” (R. 429, Tr. 10851-52, 10854, 10860-61.) As part of that
audit, Pilot employee Darren Seay oversaw the creation of data-processing
tools to calculate the difference, if any, between the discounts that customers
had actually received and the discounts they would have received but for the
fraud. (Id., 10854.) Pilot ultimately repaid over $56 million to customers they
identified as having been defrauded, and another $12 million in “make good”
35
payments to customers who may not have been notified of a change in their
discount, according to the internal audit. (R. 443, Tr. 11089; R. 669-2,
Declaration, 18352.) In July 2014, Pilot entered into an agreement with the
United States that required the company to cooperate with the ongoing
investigation and pay full restitution and a $92 million penalty. (R. 669-2,
Declaration, 18351.)
In the meantime, in May 2014, Hazelwood was terminated from his role
as Pilot’s president. (R. 523, Tr. 14270-71.)
V. In June 2014, Hazelwood contacted his former executive assistant

and insisted, falsely, that he “didn’t read” any trip reports.
Sherry Blake, Hazelwood’s longtime executive assistant, was present
during the April 2013 search of Pilot headquarters and was interviewed by
federal agents. (R. 523, Tr. 14200-02, 14221.) That evening, she told
Hazelwood that she had “met with the FBI.” (Id., 14221.)
On June 9, 2014, after Hazelwood was no longer employed by Pilot,
Blake received four telephone calls from numbers used by Hazelwood within
a 30-minute period. (R. 523, Tr. 14221-29, 14324; see also GX 1901-A, A709.)
When Blake answered the fourth call, Hazelwood said that he knew she had
told a defense investigator that Hazelwood read trip reports and that she
36
“need[ed] to know” that he “didn’t read” them, because he “didn’t have a way
to respond to the trip reports.” (R. 523, Tr. 14227.)
He continued: “I know I was a bulldog when I asked for them, but I just
need you to know I didn’t read them. Do you understand?” (Id.) Blake said
“yes, because [she] wanted the phone call to be over,” but “felt like [she] was
being used.” 11 (Id.) As she explained during trial, “I felt betrayed. And I felt
that everything generous Mark [Hazelwood] had done for me in the past was
being called upon.”12 (Id.)
11
Blake had regularly printed trip reports for Hazelwood between 2008
and 2010, put them in a binder, and left them in his inbox or delivered them to
his residence for review. (R. 523, Tr. 14216-20, 14251-52.) In late 2010, she
began making the reports available to Hazelwood electronically. (Id., 14220.)
Hazelwood also occasionally copied Blake on emails in which he responded to
the content of specific trip reports. (E.g., GX 606-B, A596; GX 606-G, A603;
GX 606-H, A608.)
12
As early as 2003 or 2004, Hazelwood had asked Blake, in addition to
her duties as his executive assistant, to “help[] pay some of his personal bills—
mortgage, utilities, insurance,” and provide similar assistance for his personal
business ventures “[d]uring Pilot business hours.” (R. 523, Tr. 14202, 14206.)
Blake agreed. (Id., 14203.) When asked if she was compensated for assisting
Hazelwood with those non-Pilot matters, Blake testified that Hazelwood gave
her “a monetary gift” each year from 2008 or 2009 until 2014, for a total of at
least $75,000. (Id.,14206-07, 14318-20.) In April 2014, “Mark Hazelwood
gave [her] $10,000, and [his wife] Joanne . . . gave [her] $10,000.” (Id.)
37
VI. Defendants were charged, tried before a jury, and convicted.
A federal grand jury indicted Hazelwood, Wombold, Jones, and others13
for conspiring to commit wire and mail fraud, in violation of 18 U.S.C. § 1349,
and specific substantive counts of wire fraud, in violation of 18 U.S.C. § 1343.
(R. 182, Superseding Indictment, 4748-805.) Hazelwood was also charged
with witness tampering based on his June 2014 call to Blake, and Wombold
was charged with making false statements to federal agents. (Id., 4800-03.)
Before defendants proceeded to trial in late 2017, 14 fourteen other Pilot
employees or executives had already pleaded guilty to conspiring to commit
wire or mail fraud: vice president John Freeman; sales directors Arnie
Ralenkotter, Brian Mosher, and Vicki Borden; regional sales managers John
Spiewak, Scott Fenwick, Kevin Clark, Chris Andrews, and Jay Stinnett; and
regional account representatives Janet Welch, Katy Bibee, Holly Radford,
Lexie Holden, and Ashley Judd. (R. 336, Tr. 7498-99; R. 356, Tr. 8926;
R. 424, Tr. 10549-51; R. 445, Tr. 11463-64; R. 520, Tr. 13447-48; R. 521, Tr.
13709-10; R. 522, Tr. 13878-80, 14024-25; R. 204, 206, 208, Plea Agreements,
13
In addition to the eight defendants in this case, ten others were
charged in E.D. Tenn. Case Nos. 3:13-cr-58, 3:13-cr-63, 3:13-cr-68, 3:13-cr-69,
3:13-cr-70, 3:13-cr-77, 3:13-cr-78, 3:13-cr-173, 3:13-cr-174, and 3:13-cr-175.
14
Karen Mann, another “inside” regional account representative, was
jointly tried with defendants and was acquitted. (R. 484, Verdict, 12376-78.)
38
4970-99, 5003-21, 5025-41; see also E.D. Tenn. Case No. 3:13-cr-58, R. 11, Plea
Agreement, 44-58; E.D. Tenn. Case No. 3:13-cr-68, R. 12, Plea Agreement,
41-55; E.D. Tenn. Case No. 3:13-cr-77, R. 7, Plea Agreement, 16-28.) Many
of those individuals testified during the trial. (R. 647, Witness List, 18036-37.)
The following sections recount facts relevant to two evidentiary issues;
facts regarding the court’s other trial rulings appear in the argument, infra.
A. Hazelwood’s defense strategy alleged his devotion to Pilot’s

reputation, his corporate leadership, and his absence of motive.
Beginning with his opening statement, Hazelwood’s counsel praised
Hazelwood’s devotion to Pilot’s reputation. For example, counsel described
Hazelwood’s actions while federal agents searched Pilot headquarters:
A person who is lying and cheating and stealing would have fled
the scene. . . . The other company’s executives were gone or
leaving quickly after the government arrived. But he went, and
he stayed until after 5:00 p.m., and then he returned home, like
everyone else, to prepare for the uncertainty and the chaos and the
stress and the damage to Pilot’s brand and reputation that they
would be working hard to repair for the next 14 months. That’s
what you need to know about Mr. Hazelwood.
(R. 520, Tr. 13347.) Hazelwood’s counsel also insisted that Hazelwood’s
leadership “was committed to the survival, to the success, and to the
relationships and reputation of Pilot throughout th[e] industry.” (Id., 13350.)
Asserting that Hazelwood “loved” Pilot, “spent a tremendous amount of
time growing” it, and “identified greatly with its success and its reputation”
39
(id., 13361), defense counsel implied that Hazelwood lacked motive or intent
to commit fraud, asking, “Why would a person who pioneered an idea that
would drive company and customer closer together ever want to cheat them
and spoil or ruin that relationship? It doesn’t make sense.” (Id., 13359.) He
also rejected the suggestion that Hazelwood was motivated by greed or profit:
We’re talking about a fraction of those transactions . . . that would

have had any [e]ffect on Mr. Hazelwood’s bottom line. The
amount of money involved will not be enough to persuade you or
anyone else that it would have been a sufficient motivator for
someone to spoil the place he had helped create and about which
he was so proud.
(Id., 13366-67.)
When cross-examining Janet Welch, the government’s first witness,
Hazelwood’s counsel asked about Hazelwood’s qualities as a “supervisor and
employer,” and Welch described Hazelwood as “a very nice man.” (R. 336,
Tr. 7457.) Defense counsel then sought to elicit testimony that Pilot’s success
stemmed almost exclusively from Hazelwood’s “great ideas”:
Hazelwood’s Counsel: Would you say he was a guy of great ideas?
Welch: Absolutely.
Hazelwood’s Counsel: Was it perceived in that company that just about

every major innovation that led to the growth of
that company began with an idea of Mark
Hazelwood?
Welch: Yes.
40
(Id., 7470.) As prompted by Hazelwood’s counsel, Welch also said she had
“great regard” for Hazelwood” and considered him an “excellent” company
president who “had a great relationship with the customers.” (Id., 7471.)
Hazelwood’s counsel posed similar questions to Brian Mosher, eliciting
agreement that Hazelwood had been considered Pilot’s “idea guy” and, as a
“good businessman” “responsible for growing Pilot’s business,” would not
have done anything “stupid and dumb, from a business standpoint,” to risk
“everything coming down.” (R. 361, Tr. 9324, 9388-90.)
Hazelwood’s Counsel: Can you explain to me, Mr. Mosher, how it was
to the advantage to the people at the top of Pilot
to risk everything on an approach to customers
that was such a small percentage of their overall
business by lying to the customers and taking
the chance that when customers found out, they
would not only not deal with them but would go
to competitors? Can you explain why you guys
thought that it was a good approach to be doing
this when it represented such a small percentage
of your overall business?
Mosher: I can’t give you any reason why it was a good

idea. I don’t think it was a good idea.
Hazelwood’s Counsel: Okay. Would you agree . . . it’s a dumb idea?
Mosher: Yes.
Hazelwood’s Counsel: That totally aside from the issue of ethics and
morality or good business dealings, if you want
to continue to build and grow a company and
make more and more money down the line,
41
would you agree with me that it is incredibly

stupid and dumb, from a business standpoint,
to take a small portion of your business and be
lying to customers and taking the chance of
everything coming down?
Mosher: I agree.
Hazelwood’s Counsel: All right. Now, would you agree that if you’re
[Pilot CEO] Jimmy Haslam and Mark
Hazelwood, responsible for growing this
business, it makes no sense, if you know
they’re doing it, to allow your people to
continue to do it?
Mosher: I can agree.
Hazelwood’s Counsel: Would you agree with me that Jimmy Haslam

was a good businessman?
Mosher: For the most part, yes.
Hazelwood’s Counsel: Would you agree that Mark Hazelwood was a

good businessman?
Mosher: Same answer. For the most part, yes.
Hazelwood’s Counsel: Would you agree that if you knew this was
going on, allowing it is a dumb business
decision?
Mosher: It is bad business decision, yes.
(Id., 9388-90.)
Hazelwood’s counsel played a 45-minute video recording of Hazelwood
portraying himself as “Mark the Driver” and purporting to empathize with
42
the socio-economic challenges and concerns of the diverse truck-driving
community while speaking to Pilot store managers. (JDX 86.) Before the
video was played, Mosher was asked to agree that it was designed “to try to
convince people . . . to be thinking of the driver first” and was “inconsistent
. . . with these manual rebate things.” (R. 358, Tr. 9261.) Afterwards, Mosher
was asked to confirm the authenticity of Hazelwood’s empathy: “Do you
think he meant that?” “Absolutely.” (Id., 9263-64.)
B. The government sought to introduce three brief recordings

to rebut Hazelwood’s defense theory, and the district court
allowed the evidence.
Citing Fed. R. Evid. 404(a)(2)(A) and 405, the government sought to
introduce three audio recordings made secretly during the October 2012
corporate retreat at Freeman’s lake house, because those recordings captured
Hazelwood engaging in conduct incompatible with his defense theory that he
would never do anything to jeopardize Pilot’s reputation or success. (R. 372,
(Sealed) Motion, 9733-78.) During the meeting—that is, at a Pilot corporate
retreat in the presence of his subordinate executives—Hazelwood described an
entire city using a racial epithet and requested and celebrated a song containing
racist, misogynistic, and sexually explicit lyrics—all while also making plans
for a future sales meeting, discussing Pilot’s board of directors, and, along with
his subordinates, joking about sensitivity training and Pilot’s human resources
43
department. (GX 529-A, 530-A, 531-A, A584-88; see also R. 520, Tr. 13371
(Hazelwood’s characterization of the October 2012 meeting as a Pilot
corporate retreat).)
The court conducted an in camera hearing on the government’s motion.
(R. 375, (Sealed) Tr. 9995-10016.) The court thereafter announced that it
would allow the evidence on two alternative bases: (1) to rebut Hazelwood’s
evidence of his character trait of sound business judgment under Rule
404(a)(2)(A), and (2) to introduce counterevidence under Rule 401, insofar as
Hazelwood’s evidence could also be fairly interpreted as being broader than
character evidence. (R. 374, Tr. 9963-78.)
Defendants sought reconsideration, and the district court again reasoned
that the recordings were admissible. (R. 455, Memorandum, 11695-712.)
They were admissible under Rule 404(a)(2)(A) as rebuttal evidence to
Hazelwood’s “alleged character for sound business judgment.” (Id., 11699.)
They were relevant under Rule 401 even if Hazelwood’s evidence were not
characterized as character evidence. (Id., 11700-01.) And they involved a
proper purpose under Rule 404(b)—i.e., to support the inference that
“Hazelwood was not, in fact, too good a businessman and company president
for Pilot to engage in conduct which, if it became known, would put Pilot at
serious risk.” (Id., 11704.) As for the Rule 403 balancing, the court found that
44
the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice to defendants nor the risk of confusing the issues,
misleading the jury, or wasting time. (Id., 11705-11.)
Defendants each moved for a mistrial. (R. 424, Tr., 10407-410.) Noting
that the motions were “anticipatory,” the district court took them under
advisement until it could judge “the real-world effect” of the evidence.15 (Id.,
10417-18.) The government offered to stipulate that Jones and Mann, as
inside account representatives, were not present when the recordings were
made, and the court noted that defendants were free to elicit testimony about
whether they were present. 16 (R. 424, Tr. 10411-12, 10418-19.)
Before the recordings were played, the court instructed the jury that it
could consider the recordings for the “limited purpose” of determining “what,
if any, weight should be given to certain evidence that was elicited during
cross-examination by counsel for Mr. Hazelwood regarding whether
Mr. Hazelwood was a good businessman, an excellent company president, and
15
Ultimately, the court denied the motions. (R. 471, Tr. 12131-50;
R. 480, Memorandum, 12367-69; see also R. 701, Memorandum, 19587
(denying motion for new trial in part because the court “saw no indication the
jurors were unduly affected by the evidence afterwards or were unable or
unwilling to follow the [c]ourt’s limiting instruction.”).)
16
The proposed stipulation—which only Mann accepted—was never
presented to the jury. (R. 424, Tr. 10415; R. 480, Memorandum, 12369.)
45
whether in those roles Mr. Hazelwood would engage in conduct that ran the
risk of putting the company in jeopardy” or “risked that customers would not
only not deal with Pilot Travel Centers but would go to competitors” if that
conduct was discovered. (Id., 10420-22.) The jury was told that the evidence
did “not go to any of the elements of the offenses” with which Hazelwood had
been charged and was being offered only “to contradict other evidence” the
jury had already heard. (Id., 10421-22.) It was told that it could “not use this
evidence for any other purpose” and that it could not “and must not use this
evidence by itself to decide that Mr. Hazelwood is guilty.” (Id.) And it was
told not to consider the recordings “at all” as to Wombold or Jones, because
they “pertain[ed] only to Mr. Hazelwood. You may not use it against any
other defendant . . . .” (Id., 10422.)
Neither Wombold nor Jones could be heard on the recordings, and their
counsel emphasized that to the jury. For example, Jones’s counsel specifically
elicited testimony that there was no “reason to believe that . . . Jones was
anywhere near the lake house” when the recording was made. (R. 424,
Tr. 10467.) And Wombold’s counsel emphasized during closing that
“Wombold is not on that recording. You will not hear . . . Wombold on that
recording.” (R. 512, Tr. 12907; see also R. 511, Tr. 12745-46 (Wombold’s
46
counsel confirming that Wombold’s “voice does not appear on the
recording”).)
C. Darren Seay, a Pilot employee, testified as a lay witness about

his development of data-aggregating tools for an internal audit
by Pilot and his use of those tools to determine the amount of
loss to certain customers.
Darren Seay, an accountant and data analytics specialist at Pilot since
2002, was chosen to supervise the creation of data-aggregating accounting
tools for Pilot’s internal audit in 2013. (R. 429, Tr. 10844-56.) Seay oversaw
the development of two such tools—one for manual rebates and one for off-
invoice repricing—to accurately and efficiently audit historical discount
calculations. (Id., 10854-56.) Both tools aggregated Pilot’s voluminous
business records regarding (1) the gallon quantity of each diesel fuel purchase
from Pilot’s network; (2) applicable OPIS average and Pilot retail prices for a
gallon of diesel at the time and location of each purchase; and (3) the actual
discount amount paid or applied for those purchases. (Id., 10857-88.) Once
the tools aggregated those Pilot records for each customer, a “non-technical
user” could compare the discount actually provided to the customer with the
discount that should have been provided under any given terms. (Id., 10887-
89.) Although the United States had not asked or instructed Pilot to conduct
its audit or to create its data-aggregating tools (e.g., id., 10852), it later asked
47
Seay to use the tools with specific discount terms for six customers during
certain time periods. (Id., 10889-92; R. 443, Tr. 11074-75.) And the United
States notified defendants, before trial, that it intended to call Seay as a lay
opinion witness. (R. 274, Memorandum, 5957-59.)
Defendants filed a pretrial motion to bar Seay’s testimony. (Id., 5962.)
The district court denied the motion, stressing the breadth of Seay’s
particularized experience at Pilot and finding that Seay’s “work on the audit,”
including his role in developing the accounting tools, was “not undertaken on
behalf of the Government,” but “assigned to him as part of new job duties in
connection with his employment, because Pilot needed to know the scope of
the wrongdoing for its own purposes.” (Id., 5963.)
Defendants renewed their objection during trial, and, after extensive voir
dire regarding the foundation for Seay’s opinion, the district court found Seay’s
testimony admissible under Fed. R. Evid. 701. (R. 443, Tr. 11128-29.) The
court reiterated that Pilot’s internal audit and creation of in-house accounting
tools were “done in an effort to maintain good relations with their customers
and to retain those customers.” (Id., 11129.)
48
Using the accounting tools he helped create, Seay compared, for six
victimized customers, 17 the discounts those customers actually received from
Pilot with the discounts they were promised, and then calculated the losses to
the customer: Amerifreight ($7,041.97); B.P. Express ($218,463.46); Halvor
($131,188.42); JTL ($119,222.01); Queen ($60,656.64); Ryder ($82,236.77).
(R. 443, Tr. 11176-85; GX 1613-A, A692; GX 810-A, A656; GX 1712-A,
A693; GX 1522-A, A686; GX 727-A, A644-55; GX 1826-A, A708.) Seay said
that his calculations were “based exclusively upon [] particularized knowledge
[] gained during [his] employment at Pilot.” (R. 429, Tr. 10891-92.)
D. After extensive deliberation, the jury returned split verdicts.
On the fourth day of deliberations, the jury asked,
(R. 486, (Sealed) Jury Communications, 12384.) Without
objection, and as specifically approved by Wombold’s counsel,18 the court
responded that
17
Before Seay testified, the government proved that each of those six
victims had been falsely promised specific cost-plus discounts to induce them
to purchase diesel fuel from Pilot. (R. 522, Tr. 13883-98; R. 356, Tr. 8928-29,
8974-76, 8992-94, 9019-9024.)
The court circulated a proposed instruction, modified it as requested

18
by Wombold, and gave it to the jury. (R. 882-1, Emails, 22248-53; R. 882-2,
Proposed Response, 22254; R. 486, (Sealed) Jury Communications, 12389.)
49
(Id., 12389; R. 516, Tr.
13254-56.)
That same day, the jury reported that it had
and asked (R. 486,
(Sealed) Jury Communications, 12385.) The United States proposed an
instruction on partial verdicts, and defendants objected. (R. 516, Tr. 13259-
62.) The court thus directed the jury to
(R. 486, (Sealed) Jury Communications,
12393.)
The next day, the jury again informed the court that it was
(R. 486, (Sealed) Jury Communications, 12386.) With the
agreement of defense counsel, the court gave the jury the Allen charge.
(R. 517, (Sealed) Tr. 13266-75.) The jury returned its verdict that afternoon.
(Id., 13277-81.) Specifically, the jury convicted defendants as follows:
• Hazelwood: conspiracy to commit mail and wire fraud, in violation

of 18 U.S.C. § 1349; wire fraud, in violation of 18 U.S.C. § 1343; and
witness tampering, in violation of 18 U.S.C. § 1512(b)(3).
• Wombold: wire fraud, in violation of 18 U.S.C. § 1343.
• Jones: conspiracy to commit mail and wire fraud, in violation of
18 U.S.C. § 1349.
50
(R. 484, Verdict, 12376-78.) The jury also acquitted each defendant of at least
one other count of the indictment. (Id. (also acquitting co-defendant Karen
Mann in full).)
VII. The court denied Hazelwood’s new-trial motion as untimely.
In May 2018, over three months after the jury found him guilty,
Hazelwood notified the court that he had obtained new counsel. (R. 533,
Motion, 14519-20; R. 545, 554, Orders, 14557-59, 14568-70.) New counsel,
in turn, sought permission and additional time to file a new-trial motion,
asserting that trial counsel had not discussed with Hazelwood the possibility
of filing such motion and that the omission constituted excusable neglect and
justified the otherwise untimely filing. (R. 542, Motion, 14540-49.)
Without deciding whether excusable neglect existed, the district court
granted Hazelwood’s new counsel approximately one month in which to file a
new-trial motion. (R. 555, 565, Orders, 14571, 14592-93.) The court did so,
it later explained, “because the time necessary for the parties to complete their
briefing on excusable neglect and for the Court to consider the question would
have used up a meaningful amount of the limited time before sentencing.”
(R. 701, Memorandum, 19564.) In light of the “fast approaching date for
sentencing,” the court instead permitted “simultaneous briefing on excusable
neglect and the merits of Defendant’s new-trial motion.” (Id., 19563-64.)
51
Hazelwood sought an extension, asserting that the large size of the trial
record and discovery database would make it “virtually impossible for counsel
to adequately review and address the issues” in time. (R. 556, Motion, 14572-
73.) The court denied the motion: “it appears that rather than having already
identified the grounds upon which a motion for a new trial would be based,
counsel intends to sift through all of the discovery materials as well as the trial
record looking for support for a motion for a new trial. Had counsel made
such representations in its first motion, the Court would have summarily
denied the motion.” (R. 558, Order, 14579-80.)
Hazelwood’s new-trial motion, filed in late June 2018, alleged that his
convictions were against the weight of the evidence, that evidentiary rulings
had rendered his trial unfair, and that trial counsel had been constitutionally
ineffective in multiple ways, including by “open[ing] the door to the admission
of the recordings of Hazelwood using racially charged language.” (R. 566,
Motion, 14594-635.) Over the next two months, Hazelwood filed four
supplemental pleadings, each alleging new instances of purported
ineffectiveness by trial counsel. (R. 579, 587, 605, 656, Supplements,
14986-96, 15070-78, 15841-44, 18076-81; see also R. 701, Memorandum,
19565-67 (summarizing supplements).) The United States responded in
52
opposition. (R. 578, 594, 608, 662, Responses, 14925-60, 15171-96, 15887-93,
18127-39.)
The court denied Hazelwood’s new-trial motion as untimely and,
alternatively, as meritless. (R. 700, Order, 19559-60; R. 701, Memorandum,
19561-608; e.g., id., 19583 (“even if the lateness of [the] motion . . . were
excused, [Hazelwood] would still not be entitled to a new trial”).) The court
reasoned that merely invoking “ineffective assistance of counsel” is not
sufficient “to overcome the otherwise inflexible rule that motions for new trial
must be filed within fourteen days.” (Id., 19574.) Although ineffectiveness can
constitute excusable neglect, “there must be at least some small measure of
possible merit in an ineffective-assistance-of-counsel argument to provide an
acceptable reason for missing the deadline and to establish that the delay was
not in the reasonable control of the defendant.” (Id., 19574-76.) After
reviewing Hazelwood’s arguments, the court found “none of them to have
even such a small amount of merit as would allow the Court to find excusable
neglect for their late filing.” 19 (Id.)
19
Referencing the four supplemental pleadings “adding completely new
theories” or emphasizing evidence “[c]ounsel had just identified,” the court
stated that Hazelwood’s new counsel “may not yet have quite the [necessary]
familiarity with the matter.” (R. 701, Order, 19582.)
53
The court also noted that Hazelwood’s trial counsel had identified a
strategic reason for not seeking a new trial—namely, that filing a motion
would have given the court an opportunity to “tighten” or refine its analysis
about the admissibility of the recordings. (Id., 19577.) The court found that
explanation “reasonable, professionally sound, and persuasive,” and found the
record “devoid of any basis on which to conclude Trial Counsel was deficient
in failing to ask for a new trial.” (Id., 19577-78.)
The court recognized that, “to properly address many, if not all, of the
[substantive ineffectiveness] claims raised, [it] would need to take evidence.”
(Id., 19583; accord id., 19586, 19588.) As part of that process, the government
would have the right to question trial counsel and even Hazelwood himself,
and the attorney-client privilege might also be waived. (Id., 19583.) The court
surmised that “it is not in Defendant’s interest to allow the Government to
question Trial Counsel or Defendant on these subjects before Defendant
completes any direct appeal.” (Id.) Indeed, because “testimony by defendants
and their attorneys prior to appeals may undermine the prospects for a
successful appeal, . . . ineffective assistance of counsel claims must generally
await the conclusion of direct appeals.” (Id., 19586.)
54
VIII. Defendants were each sentenced within or below the applicable

Guidelines range calculated by the district court.
A. Hazelwood was sentenced to 150 months’ imprisonment.
Hazelwood’s Guidelines range was 135 to 168 months’ imprisonment.
(R. 684, (Sealed) Presentence Report, 18972.) His total offense level of 33
included enhancements of 18 levels based on the parties’ stipulation that the
loss amount exceeded $3,500,000, two levels based on the number of victims,
four levels based on Hazelwood’s leadership role in the conspiracy, and two
levels for obstructing justice. (Id., 18967-68; R. 678-1, Stipulation, 18935-37.)
Hazelwood’s counsel argued that the loss calculations in the Guidelines
substantially overstated the seriousness of his offense and thus warranted a
departure under U.S.S.G. § 2B1.1, comment. (n.21(C)); the court disagreed,
denying the motion for departure. (R. 733, Sent. Tr. 20241.) After reviewing
the § 3553(a) factors at length, the court sentenced Hazelwood to 150 months’
imprisonment, three years’ supervised release, and a fine of $750,000. (Id.,
20284-321; R. 731, Judgment, 20085-91.)
B. Wombold was sentenced to 72 months’ imprisonment.
Wombold’s presentence report calculated a Guidelines range of 70 to 87
months’ imprisonment, based on an offense level of 27 and a criminal history
category of I. (R. 710, (Sealed) Presentence Report, 19760.) Wombold
55
objected to the calculation of his offense level by disputing, among other
things, the amount of loss and number of victims, both of which were derived,
in part, from data compiled in a report by accounting firm KraftCPAs.
(R. 711, (Sealed) Addendum, 19766; see also R. 618, (Sealed) Objections,
16092-119; R. 643, Response, 16608-33.) Specifically, Kraft had calculated
certain monthly losses as attributable to Mosher and, by extension, to
Wombold; the total exceeded $4.3 million. (GX 5087-B, A742-45; R. 735,
Sent. Tr. 20359-96.) According to Wombold, that loss amount unfairly held
him accountable for the conspiracy of which he had been acquitted. (R. 735,
Sent. Tr. 20605-12.)
The district court noted that “[t]he jury found . . . Wombold guilty of
wire fraud, which also includes a scheme and artifice to defraud.” (Id., 20635.)
Because courts “must assume that the jury followed the instructions when it
found that this particular wire communication furthered the scheme and
artifice to defraud that was alleged,” it was appropriate for the district court to
consider “the entire scheme and artifice to defraud” when selecting a sentence.
(Id., 20635-37.) Wombold’s “role in the scheme and artifice to defraud was to
oversee others, specifically . . . Mosher,” so Wombold “would properly be
chargeable” with any losses caused by Mosher after February 11, 2011, when
Wombold began participating in the scheme by approving Mosher’s fraudulent
56
conduct towards Amerifreight. (Id.; see also GX 1602, A687-89.) The court
thus deemed it “unnecessary” to address Wombold’s argument about acquitted
conduct, based on the court’s determination that “the scheme and artifice to
defraud [in the count of which Wombold was convicted] covers [his] full
participation in the scheme and artifice to defraud and the losses.” (R. 735,
Sent. Tr. 20637-38.)
The court acknowledged Wombold’s criticisms of the Kraft report. (Id.,
20638-39.) With regard to Wombold’s allegation that the Kraft report violated
professional accounting standards, the court explained the report at issue was
“not in the nature of an audit,” but was “more . . . of a compilation,” i.e.,
KraftCPAs assembled information “in a form that could be more easily . . .
understood.” (Id.) The court also noted that it had heard the evidence at trial,
during which witnesses testified about the amount of the fraud and about how
much Pilot paid its customers after the fraud was discovered. (Id., 20639.)
“[L]ooking at the totality of the evidence that was produced at trial, the
number of people . . . involved, the number of victims, and the way the fraud
was done,” the court found $4.3 million to be a “reasonable” attribution of loss
to Wombold. (Id., 20640.) The court thus adopted the Guidelines range
calculated in the presentence report. (R. 741, Sent. Tr. 20666.)
57
After considering the § 3553(a) factors, the court sentenced Wombold to
72 months’ imprisonment, one year of supervised release, and a $75,000 fine.
(R. 741, Sent. Tr. 20772; R. 743, Judgment, 20797-803.)
C. Jones was sentenced to 33 months’ imprisonment.
Although the court calculated Jones’s Guidelines range as 57 to 71
months’ imprisonment, it sentenced her to 33 months’ imprisonment, followed
by one year of supervised release, upon finding that the loss amount attributed
to her overstated her culpability. (R. 741, Sent. Tr. 20666, 20770-71; R. 745,
Judgment, 20808-14; R. 746, (Sealed) Statement of Reasons, 20815-18.)
IX. Defendants appealed.
These appeals timely followed. (R. 716, 739, 742, Notices of Appeal,
19776-77, 20657-58, 20795-96.) Each defendant was granted bond pending the
resolution of their consolidated appeals. (R. 787, 819, 823, Orders, 21265-66,
21516-18, 21615-17.)
58
SUMMARY OF ARGUMENT
I. Defendants have not established any reversible error in the district
court’s trial rulings.
A. Admission of the recordings. The district court did not err by
admitting recordings of Hazelwood engaging in conduct that was inconsistent
with his purported devotion to Pilot’s success and reputation—specifically,
using and promoting racist and misogynist language during a corporate retreat.
The fact that Hazelwood engaged in conduct that, if discovered, could have
damaged Pilot’s success and reputation directly contradicted his defense that
he would never do anything to jeopardize the company. The recordings were
thus offered for a proper non-propensity purpose under Rule 404(b): to rebut
his lack-of-motive defense. And the district court carefully weighed the
probative value of the evidence against any potential prejudicial effect,
considering such factors as the length of the recordings and the point in the
trial at which they were admitted, the ability of the jury to abide by the court’s
limiting instructions, and the observed effect of the evidence on the jury. The
district court’s substantial discretion in this area should not be disturbed,
particularly in light of the jury’s verdict acquitting each defendant of at least
one count—a reliable sign that the jury was driven by reason, not emotion.
59
B. Severance. The district court properly denied Jones’s motion for
severance because Jones did not suffer “compelling and specific prejudice”
from the recordings of Hazelwood. Her counsel elicited testimony, and
thereafter argued, that Jones was not present when the recordings were made;
the jury was repeatedly instructed not to consider the recordings against Jones;
and Jones was ultimately acquitted on several counts.
C. Lay witness testimony. The district court properly allowed Seay
to testify as a lay witness because his testimony was limited to opinions based
on his own perceptions, which were informed by the particularized knowledge
he possessed as a Pilot employee. Seay testified about data-processing tools
that he helped to create for Pilot, and he used them to perform the same kinds
of calculations he performed as a Pilot employee—namely, to calculate the
difference between discounts promised and discounts delivered. It was part
of Seay’s job to determine how much Pilot had shorted its customers, and his
particularized knowledge on that subject was derived exclusively from his
employment at Pilot.
D. Multiple conspiracies. A multiple-conspiracies instruction was
not appropriate because the evidence at trial amply demonstrated that the
individuals identified by Jones as allegedly running “independent” schemes—
including Mosher, Freeman, and Ralenkotter—actually conspired together,
60
along with Jones and others, to commit wire fraud and mail fraud. Even
assuming that separate conspiracies once existed, Jones concedes that they
“merged into a broader effort” at the October 2012 lake-house meeting.
Because no reasonable jury could find that Jones belonged to a conspiracy
other than the one charged, a multiple conspiracy instruction was not required.
E. Evidence not offered for its truth. The district court did not
plainly err by instructing the jury to disbelieve hearsay evidence not offered for
its truth. If the truth of the emails were critical, as Wombold now seems to
argue, the emails would have been excluded altogether as hearsay. Moreover,
Wombold suffered no prejudice from the instruction because he was allowed
to ask the witness if she was aware of the content of the emails—precisely the
non-hearsay purpose for which Wombold said he wanted to present the
evidence.
F. Evidence of Wombold’s state of mind. Wombold’s proffered
recording was an out-of-court statement offered for its truth and was therefore
properly excluded as hearsay. Evidence Rule 803(3), which provides an
exception to the hearsay rule for evidence of the declarant’s then-existing state
of mind, did not apply because the recording (a) was made a full year after the
wire fraud of which Wombold was convicted; (b) is full of hearsay-within-
hearsay; and (c) was not, in fact, probative of any relevant state of mind.
61
G. References to the Medellín cartel. The district court did not
plainly err by using the example of the Medellín drug cartel to explain
otherwise-abstract legal concepts of conspiracy law. Defendants were not on
trial for drug crimes, and no reasonable jury could interpret the court’s
examples as implying that defendants had any connection to the cartel.
II. Viewed, as it must be, in the light most favorable to the jury’s verdict, the
evidence amply supports Wombold’s conviction for wire fraud. Similarly, the
strength of the evidence against all three defendants rendered any evidentiary
errors harmless.
III. The district court properly denied Hazelwood’s motion for new trial as
untimely, because it was filed more than three months after the verdict and
Hazelwood failed to establish excusable neglect to justify the untimely filing.
The court also reasonably declined to grant a hearing on the motion, because
Hazelwood had not demonstrated that a hearing was necessary to the proper
adjudication of the motion.
IV. Defendants have not established any reversible error in sentencing.
A. Hazelwood’s downward departure motion. To the extent this
claim is even reviewable, the district court did not abuse its discretion by
declining to grant Hazelwood a downward departure. The court considered,
62
and rejected, Hazelwood’s argument about the purportedly diffuse nature of
the loss.
B. Loss attributable to Wombold. The district court did not commit
clear error by finding that Wombold’s role in the scheme was to oversee
Mosher, and, by extension, that any scheme losses caused by Mosher were
chargeable to Wombold. Nor did the court clearly err in finding that $4.3
million was a reasonable estimate of loss caused by Wombold’s participation
in the scheme. The court’s findings regarding loss amount and victims
attributable to Wombold were thus well-supported by the evidence.
V. Defendants have not established any bias or partiality by the district
court, nor any cumulative error. Rather, the record establishes that each
defendant was fairly tried and sentenced. Accordingly, their judgments should
be affirmed.
63
ARGUMENT
I. The district court’s trial rulings were well within its discretion.
This Court reviews evidentiary rulings for an abuse of discretion, only
reversing “when a district court relies on clearly erroneous findings of fact,
improperly applies the law or uses an erroneous legal standard.” United States
v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005). A district court also has broad
discretion to manage the courtroom and the trial. Fed. R. Evid. 611(a). Here,
the challenged trial rulings were well within the trial court’s broad discretion.
A. The district court properly admitted recordings of Hazelwood,

at a corporate retreat, engaging in conduct inconsistent with his
purported devotion to Pilot’s success and reputation.
1. The recordings were relevant under Rule 401 to rebut

Hazelwood’s lack-of-motive defense.
The Federal Rules of Evidence start with the proposition that relevant
evidence is admissible. Fed. R. Evid. 402. This is an “extremely liberal”
standard: “Evidence is relevant if: (a) it has any tendency to make a fact more
or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Dortch v. Fowler, 588 F.3d 396, 400
(6th Cir. 2009); Fed. R. Evid. 401. The recordings were relevant to show that
Hazelwood would not be deterred from committing fraud by the risk to Pilot’s
success or reputation.
64
a. Hazelwood argued that he would not have

committed the fraud because he was devoted to
Pilot’s success and reputation.
From his opening statement, Hazelwood made clear that his devotion to
Pilot’s success, reputation, and relationship with customers would be a fact of
consequence to his defense. His counsel described him as “committed to the
survival, to the success, and to the relationships and reputation of Pilot
throughout this industry.” (R. 520, Tr. 13350.) Counsel argued that Pilot
“was a company that [Hazelwood] loved” and “spent a tremendous amount of
time growing,” so much so that Hazelwood “identified greatly with its success
and its reputation.” (Id., 13360-61.)
Hazelwood’s counsel reiterated that theme in his cross-examination of
the governments’ first witness, Janet Welch, by eliciting testimony that
Hazelwood was an “[e]xcellent” president, that he was the source of “just
about every major innovation that led to the growth of th[e] company,” and
that he “had a great relationship with the customers.” (R. 336, Tr. 7470-71.)
Similarly, when cross-examining Brian Mosher, Hazelwood’s counsel
played a 45-minute video of Hazelwood speaking to Pilot’s store managers in a
persona he called “Mark the Driver.” (JDX 86.) The purpose of the video,
Mosher agreed, was to impress on Pilot employees “how important it is to take
care of the truck driver” and “to be thinking of the driver first.” (R. 358, Tr.
65
9260-61.) In the video, Hazelwood invited “some of [his] buddies”—i.e., four
truck drivers, two of whom were African-American—to describe what they
wanted from a truck stop. (JDX 86, 20:45-29:45.) After playing the video,
Hazelwood’s counsel asked Mosher to confirm that the empathy shown by
Hazelwood was genuine: “Do you think he meant that?” “Absolutely.”
(R. 358, Tr. 9263-64.)
The defense also elicited testimony from Mosher that the fraud with
which Hazelwood had been charged was “incredibly stupid and dumb, from a
business standpoint,” because it would jeopardize the success, reputation, and
relationships to which Hazelwood was so committed. (R. 361, Tr. 9388-90
(reproduced supra at 41-42); see also id. (“Can you explain to me, Mr. Mosher,
how it was to the advantage to the people at the top of Pilot to risk everything
on an approach to customers that was such a small percentage of their overall
business by lying to the customers and taking the chance that when customers
found out, they would not only not deal with them but would go to
competitors?”).)
The “obvious” implication of such questioning, the court found, was
that Hazelwood “would not engage in, participate in, or approve the conduct
alleged in the indictment.” (R. 374, Tr. 9970-71; accord R. 701, Memorandum,
19584-85 (“The clear implication for the jury was that a person with that level
66
of dedication to Pilot would not engage in the charged scheme and artifice to
defraud.”).) The argument was not merely implied; Hazelwood’s counsel had
explicitly argued in his opening statement that Hazelwood had no motive to
commit the fraud: “Why would a person who pioneered an idea that would
drive company and customer closer together ever want to cheat them and spoil
or ruin that relationship? It doesn’t make sense.” (R. 520, Tr. 13359; see also
id., 13366-67 (arguing that the “amount of money involved” was too small to
motivate Hazelwood to “spoil the place he had helped create and about which
he was so proud”).)
In that way, Hazelwood forged, link by link, a chain of reasoning
leading to the conclusion that he had no motive to commit fraud:
Hazelwood was devoted to Pilot’s success, reputation, and

relationship with its customers; and
Fraud was a “dumb business decision” that risked Pilot’s success,

reputation, and relationship with its customers; therefore
Hazelwood had no reason to commit the fraud.
That defense, as the district court found, was “a powerful one,” part of a
“well-designed, well-thought-out defense strategy” that “held promise of being
effective and persuasive to the jury.” (R. 701, Memorandum, 19584-85.)
67
b. The recordings were relevant to show that

Hazelwood was not deterred by risk to Pilot’s
success or reputation.
To break the first link in the chain, the United States sought to introduce
evidence rebutting the contention that Hazelwood would not do anything to
risk Pilot’s success or reputation. Hazelwood’s conduct during a corporate
retreat could have “led to boycotts, protests, and loss of customer support and
business,” as well as discrimination lawsuits by current and former African-
American employees who suspected they had been terminated or disciplined
not for specific conduct, but “because of their race.” (R. 374, Tr. 9976-77.)
Those same types of consequences—lawsuits and loss of customer support—
would naturally flow from the discovery of fraud, so the recordings were
relevant to show that Hazelwood was not deterred from taking action that
risked such consequences.
The setting enhanced the relevance of the recordings: those present
included Pilot direct-sales executives, gathered “for the express purpose of
conducting a Pilot management meeting and planning Pilot training
activities.” (R. 455, Memorandum, 11704.) Moreover, they were
Hazelwood’s subordinates, for whom Hazelwood’s “presence, statements,
and actions served as significant indicia of acceptable conduct.” (Id.) And if
68
Hazelwood’s statements had been contemporaneously publicized, Pilot, not
just Hazelwood, would have suffered the consequences.
Hazelwood’s argument that the recordings are irrelevant because they
could not put Pilot out of business (Hazelwood Br. 30) attacks a straw man.
Whether something would put Pilot out of business was not the issue; even
discovery of the fraud did not ruin Pilot. The issue was whether Hazelwood
would ever do anything to damage Pilot’s success and reputation. The district
court did not abuse its discretion by finding that the recordings were relevant to
that issue.
2. The recordings were admissible under Rule 404(b)

because rebutting a lack-of-motive defense is a permissible
non-propensity purpose.
Relevant evidence of a defendant’s crime or other act is admissible
unless offered “to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Fed.
R. Evid. 404(b)(1). The rule is one of “inclusion rather than exclusion,”
barring only one use of such evidence and identifying several permissible
purposes. United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985). The
non-exclusive list of permissible uses includes “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, [and] lack of
accident.” Fed. R. Evid. 404(b)(1); accord Blankenship, 775 F.2d at 739.
69
To be admissible for a proper purpose, 20 other-act evidence must be
probative of a material issue other than character. United States v. Carney, 387
F.3d 436, 451 (6th Cir. 2004). It satisfies that standard if “(1) the evidence is
offered for an admissible purpose, (2) the purpose for which the evidence is
offered is material or ‘in issue,’ and (3) the evidence is probative with regard to
the purpose for which it is offered.” United States v. Haywood, 280 F.3d 715,
720 (6th Cir. 2002). This Court has not yet settled on the appropriate standard
of review for evidentiary rulings under Rule 404(b). See, e.g., United States v.
Clay, 667 F.3d 689, 703 (6th Cir. 2012) (Kethledge, J. dissenting) (noting
“longstanding intra-circuit conflict”).
Under any standard, the recordings were admissible for a proper
purpose: to rebut Hazelwood’s contention that the risk of damaging Pilot’s
success and reputation would have deterred him from committing fraud.
Rebutting a fact placed into issue by a defendant is a permissible,
non-propensity basis to admit evidence under Rule 404(b). See United States v.
Colon, 278 F. App’x 588, 595 (6th Cir. 2008) (“The government’s purpose in
20
To admit evidence under Rule 404(b), a court must determine that
(1) there is sufficient evidence the act occurred; (2) the act is admissible for a
proper purpose; and (3) the probative value is not substantially outweighed by
the danger of unfair prejudice under Rule 403. United States v. Hardy, 643 F.3d
143, 150 (6th Cir. 2011). It is undisputed that the recorded conversations
occurred, and Section I.A.4., infra, discusses Rule 403’s balancing test.
70
offering 404(b) evidence must be ‘to prove a fact that the defendant has placed,
or conceivably will place, in issue . . . .’” (quoting United States v. Merriweather,
78 F.3d 1070, 1076 (6th Cir. 1996))); see also United States v. Buentello, 423
F. App’x 528, 532-33 (6th Cir. 2011) (defendant’s disciplinary history was
admissible under Rule 404(b) because “when a party ‘open[s] the door’ on an
issue, the district court has discretion to allow evidence on the same issue ‘to
rebut any false impression that might have resulted from the earlier
admission’” (quoting United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994)));
United States v. Walter, 870 F.3d 622, 628 (7th Cir. 2017) (“We do not dispute
. . . that correcting a misleading suggestion or implication can be a valid
non-propensity reason for admitting other-act evidence—Rule 404(b)’s list is
illustrative, not exhaustive.”); United States v. Havey, 227 F. App’x 150, 152-54
(3d Cir. 2007) (evidence offered to “rebut[] statements [defendant] made
during his direct examination” was properly admitted under Rule 404(b)).
Moreover, as discussed above, the contention the government sought to
rebut—that Hazelwood would not do anything to jeopardize Pilot’s success or
reputation—was a lack-of-motive defense. (See, e.g., R. 520, Tr. 13359, 13366-
67; R. 361, Tr. 9389 (repeatedly asserting that Hazelwood lacked the motive to
commit fraud); cf. R. 424, Tr. 10420-22 (instructing jury regarding the limited
purpose for the evidence).) And proving motive is specifically listed as a
71
permissible purpose in the rule. Fed. R. Evid. 404(b)(2). Indeed, other courts
have repeatedly held that evidence of other acts is admissible under Rule
404(b) to disprove a defendant’s lack-of-motive defense:
In United States v. Patel, 485 F. App’x 702 (5th Cir. 2012), a doctor
charged with health care fraud offered a lack-of-intent defense
by introducing evidence that he demonstrated “abundant
compassion” for his patients. The government was thus entitled
to introduce rebuttal evidence, including that he had called
patients derogatory names. Id. at 716-17.
In United States v. Mireles, 442 F. App’x 988 (5th Cir. 2011),

a customs and border protection officer was charged with
transporting and harboring illegal aliens. After his counsel
argued that the officer valued his job too much to risk losing it
by harboring an illegal alien, the government was entitled to
introduce evidence that the officer “was doing the minimum
work” and was an underperforming employee. Id. at 994-995.
In United States v. Uzenski, 434 F.3d 690 (4th Cir. 2006), a police
officer was charged with manufacturing and possessing an
unregistered firearm. After he sought to portray himself as a
“good officer,” thereby contesting whether he had the requisite
mens rea for the offense, the government was entitled to present
counter-evidence that the officer had made a false radio report and
shot at his own police car. Id. at 711.
In United States v. Johnson, 634 F.2d 735 (4th Cir. 1980), a doctor
charged with tax evasion argued that she had “nothing to do with
preparing her tax returns because she cared nothing for money and
chose, instead, to devote her time to the demanding personal needs
of her patients.” Id. at 736. The government was entitled to rebut
that defense by introducing evidence that she had previously
overstated Medicaid billings. Id. at 737-38.
72
The defense at issue in each case—that a defendant was too good or cared
too much for his or her work to have committed the charged offense—is
analogous to Hazelwood’s proffered defense that he cared too much about
Pilot’s success and reputation to risk them by committing fraud. And in each
case, the reviewing court held that Rule 404(b) permitted the prosecution to
introduce evidence of specific other acts to show that defendants did not
always act as they claimed.
Finally, the recordings were not the type of evidence that would “lure
the factfinder into an impermissible propensity line of reasoning.” United States
v. Asher, 910 F.3d 854, 862 (6th Cir. 2018). Evidence that Hazelwood was not
deterred from damaging Pilot does not suggest propensity for anything, let alone
fraud. And the recordings could not be viewed as evidence that Hazelwood
had, at another time, “committed essentially the same crime as that for which
he is on trial.” Id. (quoting United States v. Jenkins, 593 F.3d 480, 486 (6th Cir.
2010)). Although substantially similar in the critical way—jeopardy to Pilot—
Hazelwood’s use of racist and misogynist language during a Pilot retreat is
otherwise unlike the charged crime.
73
3. In the alternative, the recordings were admissible under

Rule 404(a)(2).
Even if this Court were to hold that the recordings tended to show only
that Hazelwood acted in accordance with a character trait demonstrated
therein, the recordings would nonetheless be admissible under Rule 404(a)(2).
That rule allows the prosecution to rebut evidence offered by the defense of a
relevant trait—here, that Hazelwood was a good businessman who would
never do anything to jeopardize Pilot. Fed. R. Evid. 404(a)(2)(A); see also
United States v. Worthington, 698 F.2d 820, 827 (6th Cir. 1983) (affirming
admission of testimony about defendant’s poor conduct as a medical student
and resident to rebut his attempt to portray himself as a “dedicated, hard-
working, honorable doctor”).
Rule 405, which ordinarily allows inquiry into specific instances of
conduct only on cross-examination of a character witness, is no barrier here.
(See Hazelwood Br. 42-43; Wombold Br. 33-36.) Rather than call his own
character witness, Hazelwood elicited testimony that he was a “good
businessman” through cross-examination of Brian Mosher, who thus became a
character witness for Hazelwood. See United States v. Shannon, 803 F.3d 778,
784-785 (6th Cir. 2015) (“evidence may be offered through cross-
examination”). The rule therefore allowed the government to inquire “into
74
relevant specific instances” of Hazelwood’s conduct on Mosher’s re-direct
examination. And because the rule allowed the government to inquire into
Hazelwood’s conduct through Mosher on re-direct, the district court did not
abuse its discretion by allowing the government to make the same inquiry of a
federal agent instead—a choice designed to restrict the evidence to the purpose
for which it was offered and to reduce, if not eliminate, the risk of unfair
prejudice to the other defendants on trial. See Fed. R. Evid. 611 (court should
exercise reasonable control over the presentation of evidence). (See also R. 413,
(Sealed) Response, 10329-30 (explaining rationale for introducing the
recordings through an agent rather than Mosher).)
Nor was it an abuse of discretion to allow the government to introduce
evidence of Hazelwood’s conduct through the recordings instead of through
direct witness testimony. First, the court could reasonably have concluded that
playing the recordings—which ran less than nine minutes—was more efficient
and less prejudicial than subjecting Mosher or another witness to examination
about every statement contained in those recordings. Second, Hazelwood had
already introduced his own extrinsic character evidence in the form of the
“Mark the Driver” video, a 45-minute recording of Hazelwood speaking to
Pilot’s store managers and emphasizing empathy with the socioeconomic
challenges of Pilot’s diverse truck-driving community as a marketing strategy.
75
(JDX 86.) Under the doctrine of “curative admissibility,” the district court had
discretion to allow the prosecution to remedy the unfair prejudice arising from
the introduction of inadmissible evidence by presenting similar counter-
evidence. See Elledge v. Bacharach Instr. Co., Nos. 91-1931, 91-1952, 1992 WL
205662 at *3 (6th Cir. Aug. 25, 1992) (“Under the rule of curative admissibility
… the introduction of inadmissible evidence by one party opens the door for
an opponent to introduce evidence on the same issue to rebut any false
impression that was given.”) “One who induces a trial court to let down the
bars to a field of inquiry that is not competent or relevant to the issues cannot
complain if his adversary is also allowed to avail himself of the opening.” Id.
(quoting McCormick on Evidence, § 57 (3d ed. 1984)).
4. Rule 403 does not require exclusion of the recordings.
a. As to Hazelwood, the recordings were more

probative than prejudicial.
Relevant evidence may be excluded under Federal Rule 403 if “the
probative value of the evidence is substantially outweighed by its prejudicial
character.” United States v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984) (emphasis
original) (quoting United States v. Brady, 595 F.2d 359, 361 (6th Cir. 1979)).
“Broad discretion is given to district courts in determinations of admissibility
based on considerations of relevance and prejudice, and those decisions will
76
not be lightly overruled.” United States v. Chambers, 441 F.3d 438, 455 (6th Cir.
2006) (quoting Dixon, 413 F.3d at 544). Indeed, this Court “must look at the
evidence in the light most favorable to its proponent, maximizing its probative
value and minimizing its prejudicial effect.” Zipkin, 729 F.2d at 389-90.
Under that standard, the probative value of the recordings is high:
The fact that Hazelwood engaged in conduct that, if discovered, could have
jeopardized Pilot’s success and reputation directly contradicts his defense that
he would never engage in conduct that risked such consequences. As a result,
the risk of prejudice arising from the offensive nature of Hazelwood’s conduct
is not unfair, nor does it substantially outweigh the probative value of the
recordings. Indeed, the offensive nature of Hazelwood’s conduct is why the
evidence has such high probative value, i.e., because the conduct at issue was
of such magnitude that, if discovered or known to the public at that time, it
would likely have placed Pilot in jeopardy.
The probative value of the evidence is further heightened because there
were no other reasonable means of rebutting Hazelwood’s defense. See
Merriweather, 78 F.3d at 1077 (“One factor in balancing unfair prejudice
against probative value under Rule 403 is the availability of other means of
proof.”) As the district court recognized, Hazelwood’s argument that he
would not do anything to jeopardize Pilot “necessarily contemplated actions or
77
conduct of such a magnitude that the company would be at risk … if
discovered.” (R. 374, Tr. 9976.) Contrary to Hazelwood’s assertion that “all
manner” of reckless and anti-social behaviors might be admissible under that
reasoning (Hazelwood Br. 45), any evidence that Hazelwood drove drunk or
had an affair, for example, would be unlikely to damage the company through
lawsuits or lost customers. (Cf. R. 374, Tr. 9976 (gambling evidence would
not be probative because “no one could imagine that if it came out that
Mr. Hazelwood played poker, that the company would be at risk”).) The
government was entitled to rebut Hazelwood’s defense by informing the jury
about the conduct captured by the recordings.
The district court and the government took precautions to minimize the
recordings’ prejudicial impact. The recordings comprised a small fraction of
the evidence at trial: collectively, the three recordings are less than 9 minutes
long,21 and all the evidence about them, “from the [c]ourt’s limiting instruction
through the end of the testimony,” filled less than two hours of the 27-day trial.
(R. 701, Memorandum, 19587.) The trial continued for several weeks after the
recordings were admitted, “so any lingering effect of the evidence could
reasonably have been expected to dissipate” before the jury’s deliberations.
GX 529 is 4 minutes, 10 seconds; GX 530 is 1 minute, 33 seconds; and

21
GX 531 is 3 minutes, 4 seconds.
78
(Id., 19606.) And after presenting the recordings, the government never
mentioned them again, either through the examination of witnesses or during
closing arguments.
The court strongly and repeatedly instructed the jury that the recordings
were only to be used for a particular purpose against Hazelwood and not
against the other defendants at all. (R. 424, Tr. 10420-22; R. 513, Tr. 13192-
94.) “It is the almost invariable assumption of the law that jurors follow their
instructions.” United States v. Olano, 507 U.S. 725, 740 (1993) (quoting
Richardson v. Marsh, 481 U.S. 200, 206 (1987)). Even while acknowledging
that the recordings were “deeply offensive,” 22 the district court was
“confident” that the jury would follow its instructions. (R. 374, Tr. 9972,
9978; R. 455, Memorandum, 11710.) At the close of trial, with the benefit of
hindsight, the court found its confidence to have been well-placed. The court
explained that it had “observed the jurors’ demeanors throughout the trial”
and that, although it was apparent that the recordings were “unpleasant for the
jury,” the court “saw no indication the jurors were unduly affected by the
22
Wombold incorrectly states that the district court characterized the
recordings as “vile, despicable, inflammatory, and offensive.” (Wombold
Br. 31.) The court corrected a similar misstatement at trial, clarifying that it
had quoted one of defendants’ filings and “that was not the [c]ourt’s
language.” (R. 444, Tr. 11234.)
79
evidence afterwards or were unable or unwilling to follow the [c]ourt’s limiting
instruction.” (R. 701, Memorandum, 19587.) The court agreed that
“Government Exhibits 529-31 were striking, and . . . were an effective counter
to [Hazelwood’s] good-businessman defense,” but rejected Hazelwood’s
assertion that “the racist nature of the recordings was the deciding factor in
[his] trial.” (Id.)
The jury’s deliberations and verdict establish that the recordings did not
“inflame[] the jury and overwhelm[] its judgment.” (Id.) Over five days of
deliberation, the jury communicated with the court several times, asking
asking
and announcing
(R. 486, (Sealed) Jury
Communications, 12382-93.) In the end, the jury acquitted each defendant of
at least one count. 23 (R. 484, Verdict, 12376-78.) The split verdict shows that
the jury was driven by reason, not emotion. See Paschal v. Flagstar Bank, 295
23
Mann was acquitted entirely, despite the fact that her counsel, over the
government’s objection, asked a government witness whether Mann had ever
expressed “racist views,” eliciting testimony that Mann participated in emails
that “could be viewed in an unsavory manner” as involving people unable to
“speak clear English.” (R. 424, Tr. 10481-82.) Mann’s acquittal in spite of this
evidence further shows that the jury dispassionately considered the evidence.
80
F.3d 565, 581 (6th Cir. 2002) (“If the unfairly prejudicial effect of the . . .
evidence had been substantial, the jury would have likely found against
Flagstar on all the claims.”); United States v. Durham, 902 F.3d 1180, 1229 (10th
Cir. 2018) (“[T]he jury’s acquittal … on several counts … suggests that the
jury’s verdict was based on reason, rather than emotion.” (internal citation
omitted)); United States v. McNair, 605 F.3d 1152, 1205 (11th Cir. 2010) (same).
In short, the district court admitted the recordings only after carefully
balancing their probative value against their prejudicial effect in the context of
a lengthy and complicated trial. It considered the issue three times, each time
aided by briefing and each time issuing a lengthy explanation for its decision.
(See R. 374, Tr. 9963-78 (orally admitting recordings); R. 455, Memorandum,
11695-712 (denying motions to reconsider); R. 701, Memorandum, 19561-608
(denying Hazelwood’s motion for new trial). As the district court explained
after trial, “granting the Government’s motion to admit the evidence was never
a foregone conclusion. The [c]ourt invested significant time, research, and
analysis into the question and had to consider a number of countervailing
factors.” (R. 701, Memorandum, 19585-86.)
The district court properly exercised its discretion, and its decision
should be affirmed. See Paschal, 295 F.3d at 580 (affirming lower court where
the record “demonstrate[d] that the district court was cognizant of the
81
potentially prejudicial impact of the testimony and that it attempted to draw
the appropriate balance under Rule 403”); Zipkin, 729 F.2d at 389 (“[T]he
draftsmen intended that the trial judge be given a very substantial discretion in
‘balancing’ probative value on the one hand and ‘unfair prejudice’ on the
other, and that he should not be reversed simply because an appellate court
believes that it would have decided the matter otherwise” (quoting United States
v. Long, 574 F.2d 761, 767 (3d Cir. 1978))).
The careful balance struck by the district court was consistent with this
Court’s precedent. Though the recordings contained offensive and derogatory
language, “the prejudice occasioned by derogatory language is generally
insufficient to warrant exclusion,” even where the probative value of the
evidence is low. United States v. Al-Din, 631 F. App’x 313, 324 (6th Cir. 2015)
(affirming, on plain-error review, admission of defendant’s letter featuring
“frequent use of the ‘N’ word”). Contrary to Hazelwood’s assertion that
“[n]ot a single circuit has upheld the admission of incendiary, racially charged
evidence against a defendant in a criminal trial like this one” (Hazelwood
Br. 36), courts have repeatedly allowed such material to go to the jury. In
United States v. Owens, 159 F.3d 221, 224 (6th Cir. 1998), for example, this
Court affirmed the admission of evidence, during a trial for gambling,
prostitution, and drug-trafficking charges, about a defendant enforcing racist
82
policies at clubs he owned. Id. at 225-26. And the Fifth Circuit has affirmed
the admission of a defendant’s letter featuring “violent and obscene language,
racial slurs, and threats” to rebut the defendant’s attempt to distance himself
from a gang and other conspirators. United States v. Chavful, 100 F. App’x 226,
231 (5th Cir. 2004); see also Al-Din, 631 F. App’x at 324; United States v. Stuckey,
253 F. App’x 468, 483 (6th Cir. 2007) (affirming admission of “profane,
offensive, and violent” rap lyrics in a murder trial); United States v. Caver, 470
F.3d 220, 240-41 (6th Cir. 2006) (affirming, on plain error review, admission of
letters with low probative value that used “foul language and derogatory
terms”). There is no categorical rule barring racially-charged evidence as too
prejudicial, nor should there be. Such evidence should be admissible where, as
here, the probative value of the evidence is not substantially outweighed by the
risk of prejudice.
Defendants cite numerous cases about the offensive and inflammatory
nature of racial slurs (Hazelwood Br. 31-34; Wombold Br. 39-41; Jones Br. 43-
46), but those cases do not help resolve the fact-specific inquiry here. Nor do
they show that the district court abused its discretion.
In only three cases cited was admission of a racial slur reversible error,
and none is like this one. In United States v. Ebens, 800 F.2d 1422 (6th Cir.
1986) (cited by Hazelwood Br. 31; Wombold Br. 40; Jones Br. 44), abrogated by
83
Huddleston v. United States, 485 U.S. 681 (1988), a white defendant killed a
Chinese-American man and was tried for interfering with the victim’s civil
rights. Id. at 1427-28. This Court held that the trial court erred by admitting
evidence that, eight or nine years before the crime, a man with the same first
name as the defendant used a racial slur against an African-American patron
in a bar. Id. at 1432-34. The conduct was too remote in time, the Court
reasoned, and—even worse—the government had not proven that the
defendant was the one who used the slur. Id. The Court did not hold that
evidence of racial slurs is inherently inadmissible, instead noting that “[h]ad
the statement been made in the recent past and against someone of Oriental
extraction, a strong case might have been made for the admission of such
testimony under 404(b).” Id. at 1433. In Joseph v. Publix Super Markets, Inc.,
151 F. App’x 760 (11th Cir. 2005) (cited by Wombold Br. 41), evidence that a
former supervisor had once used a racial slur was irrelevant and unduly
prejudicial to a racial discrimination claim because the supervisor left the
company before the alleged discrimination occurred. Id. at 768-69. And in
In re DePuy Orthopaedics Inc., 888 F.3d 753 (5th Cir. 2018) (cited by Hazelwood
Br. 41), a product-design defect case, an employee’s resignation letter alleging
that she had overheard a racial slur was deemed inadmissible hearsay. Id. at
84
786-88. In all three cases, the probative value of the evidence was low, and the
potential for confusion of the issues was high.
In two other cases identified by defendants, the admission of offensive
racial references was deemed erroneous—in each, the references could have
been redacted without greatly reducing the probative force of the evidence—
but did not require reversal. United States v. Tocco, 200 F.3d 401, 419-20 (6th
Cir. 2000) (cited by Hazelwood Br. 32; Wombold Br. 40; Jones Br. 45)
(recorded conversations between co-conspirators introduced to establish the
existence of a conspiracy included racial remarks); United States v. Bowman,
302 F.3d 1228, 1239-40 (11th Cir. 2002) (cited by Hazelwood Br. 36)
(motorcycle-club constitutions, some of which contained a “whites-only”
policy, introduced to show unity of purpose between club chapters).
The remainder of the cases cited by defendants fit into two broad
categories, neither of which establish an abuse of discretion here. First,
defendants cite cases in which racist or sexist slurs were held to contribute to a
hostile work environment (Hazelwood Br. 33-34; Wombold Br. 40)—i.e., cases
that tend to support the district court’s finding that Hazelwood’s use of such
slurs with his subordinates was potentially damaging to Pilot. See Freeman v.
Dal-Tile Corp., 750 F.3d 413, 422 (4th Cir. 2014); Ayissi-Etoh v. Fannie Mae, 712
F.3d 572, 577 (D.C. Cir. 2013); Reeves v. C.H. Robinson Worldwide, Inc., 594
85
F.3d 798, 810 (11th Cir. 2010); Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225,
229-30 (1st Cir. 2007); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1115 (9th
Cir. 2004); Rogers v. City of New Britain, 189 F. Supp. 3d 345, 355-56 (D. Conn.
2016). Second, defendants cite cases in which a district court excluded racist
or sexist statements (Hazelwood Br. 34; Wombold Br. 40-41)—i.e., cases that
reiterate that admissibility determinations should be left to the sound discretion
of the trial court. See Phoenix v. Coatesville Area Sch. Dist., 683 F. App’x 117,
120 (3d Cir. 2017); United States v. Wardlow, 830 F.3d 817, 822 (8th Cir. 2016);
United States v. Castronuovo, 649 F. App’x 904, 923 (11th Cir. 2016); Kim v.
Coppin State Coll., 662 F.2d 1055, 1066 (4th Cir. 1981); see also Paschal, 295 F.3d
at 580 (affirming admission of evidence that bank employed a racist
employee); Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856-57 (10th Cir.
2000) (allowing application form containing racist slurs to be admitted on
remand given sufficient foundation).
In sum, caselaw confirms that the district court properly conducted the
Rule 403 balancing test. Its admission of the recordings should be affirmed.
b. Wombold was not prejudiced by the recordings.
The jury was repeatedly instructed to consider the evidence against each
defendant separately and not to consider the recordings at all with respect to
Wombold. (R. 424, Tr. 10422; R. 513, Tr. 13171-72, 13193-94.) Wombold’s
86
assertions that he was “uniquely” prejudiced are rooted in speculation that the
jury may have attributed unidentified voices on the recordings to him or
(Wombold
Br. 44-48.) But Wombold was able to insulate himself from the recordings; his
attorney stated in closing argument that his voice was not heard on them.24
(R. 512, Tr. 12907 (“Scott Wombold is not on that recording.”).)
Moreover, the jury’s split verdict does not indicate that the jury was
driven by emotion. (Cf. Wombold Br. 48.) To the contrary, as discussed
above, the jury’s verdict and communications to the court establish that the
jury was driven by a reasoned and orderly review of the evidence, guided by
the court’s instructions. 25 (R. 484, Jury Verdict, 12376-78; R. 486, (Sealed)
Jury Communications, 12386.) The jury asked
24
25
Nor does United States v. Paniagua-Ramos, 135 F.3d 193 (1st Cir. 1998)
(cited by Wombold Br. 48), suggest that a split verdict is a sign of a jury
governed by prejudice. Rather, Paniagua-Ramos held that an inconsistent
verdict may suggest an improper compromise after receiving an Allen charge—
an issue Wombold has not alleged here. Id. at 199.
87
(R. 486 (Sealed) Jury Communications, 12384.) Wombold, like
the other defendants, agreed that it did, and the district court so instructed the
jury. (Id., 12389.) The jury’s verdict should not be viewed as anything other
than proof that the jury followed the instructions it was given.
Wombold incorrectly implies that the recordings contained “obvious
indications of alteration.” (Wombold Br. 46, 50.) But the redactions here
were not like the redactions in Gray v. Maryland, 523 U.S. 185 (1998), where a
co-defendant’s name was simply replaced by an “obvious blank space or a
word such as ‘deleted,’” while statements directly implicating the defendant
were left behind. Id. at 192-193. Rather, the recordings and transcripts were
Nor was Wombold exposed to the type of “spillover” prejudice held
problematic in Bruton v. United States, 391 U.S. 123, 135-36 (1968), where a
88
defendant’s confession directly inculpated a co-defendant with whom he was
jointly tried. (Wombold Br. 50-51.) Any potential prejudice from the
admission of the recordings was thus mitigated by instructing the jury to
consider the evidence against each defendant separately. E.g., United States v.
Walls, 293 F.3d 959, 966 (6th Cir. 2002) (deeming jurors “capable of following
instructions . . . regarding the sorting of evidence and the separate
consideration of multiple defendants”); United States v. Frazier, 584 F.2d 790,
795 (6th Cir. 1978) (same).
Finally, the district court properly rejected the “alternative options” that
Wombold proposed. (R. 455, Memorandum 11711-12; cf. Wombold Br. 52.)
Hazelwood did not join those proposals, and the district court rightly deemed
it “inappropriate to allow the Codefendants, without Defendant Hazelwood’s
agreement, to control the method in which evidence that relates solely to him
is presented.” (R. 455, Memorandum 11711.) For example, “retroactive
exclusion of the evidence the Government was seeking to rebut” (Wombold
Br. 52)—Hazelwood’s evidence—would have been impractical, ineffectual,
and fundamentally unfair to Hazelwood’s ability to present his chosen defense.
Likewise, Wombold’s suggestion that the government should only have asked
Mosher if he knew Hazelwood had made racist comments (id., 54) would not
likely have reduced the risk of prejudice to Jones and Wombold and could
89
have significantly increased the risk of prejudice to Hazelwood. The jury
would have been left to speculate about exactly how derogatory and offensive
Hazelwood’s remarks may have been, thus amplifying the resulting prejudice.
See United States v. Landry, 631 F.3d 597, 604-05 (1st Cir. 2011) (“[A]lthough
the prejudicial effect of a drunk-driving conviction is significant, the district
court reasonably concluded that the alternative—jury speculation—was
worse.”); Heno, 208 F.3d at 856 (“Shrouding this [racially defamatory]
document in mystery . . . while simultaneously refusing to admit it in evidence
could only serve to heighten the jury’s view of the document’s importance.”).
In any case, the district court properly found that because there was “no error
in allowing admission of the evidence,” there was “no basis on which to
consider alternatives to its admission.” (R. 455, Memorandum 11711.)
c. Jones was not prejudiced by the recordings.
Jones elicited testimony from the agent who introduced the recordings
that there was no “reason to believe that [she] was anywhere near the lake
house” when the recordings were made. (R. 424, Tr. 10467.) During closing,
Jones’s counsel emphasized that Jones had not been present:
Ms. Jones had nothing to do with that. She was not

present when that happened. She was not present at
many of the audio recordings. . . . [S]he was not
present at the lake house. She was not present in
90
Orlando. She was not present when that terrible —

those terrible recordings were made.
(R. 511, Tr. 12871.) Because the proof showed, and Jones’s counsel
specifically argued, that Jones was not present during the recordings, she was
not prejudiced by the introduction of the recordings.
The recordings did not unfairly frustrate Jones’s defense that she
reasonably relied on her supervisor Mosher and the “normalcy” of her
workplace when changing customer rebates. (Jones Br. 50-54.) Because Jones
was not present for the recorded conversation, there was no reason for the jury
to think that the recordings had any effect on her perception of Mosher or her
workplace. (See also Jones Br. 53 (“The Government offered no proof that
Jones ever encountered racist or sexist speech in her work.” (emphasis
omitted)).) The jury also learned, from questioning by Hazelwood’s counsel,
that Hazelwood was “released from Pilot based on a racial slur,” which
undermines the suggestion that Pilot’s culture accepted the behavior captured
on the recordings. (R. 523, Tr. 14270-71.)
Nor did the recordings unfairly affect the jury’s perception of the
November 2012 sales meeting, which occurred a month after the lake-house
corporate retreat and involved a much larger cast of characters. (Jones Br. 54-
55.) It does not matter if at trial the government “segue[d] directly from the
end of Mosher’s testimony concerning the lake house meetings to the

91
November 2012 sales meeting” (id.); the jury knew Jones was not present at
the corporate retreat and had no reason to believe that she was aware of or
approved what was said there. Any “prejudice” to Jones from the November
2012 sales meeting came from Jones’s own statements, caught on tape,
providing strong evidence that she was a knowing participant in the fraudulent
scheme.
Nor again was Jones unfairly stymied from limiting the effect of the
recordings through cross-examination.26 (Jones Br. 59-65.) The government
was not obligated to recall earlier witnesses for Jones to cross-examine them
about later-admitted evidence, nor did the district court abuse its discretion by
declining to allow Jones’s counsel to pursue a line of questioning that was
“undoubtedly outside the scope of direct examination.” (Jones Br. 64, quoting
R. 424, Tr. 10546-47.) See Fed. R. Evid. 611(b). Any perceived limit on
Jones’s ability to develop her defense through cross-examination could have
26
Jones suggests that her Sixth Amendment right to confront witnesses
was infringed when
But “trial judges retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination” to
minimize prejudice and confusion of the issues. Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986). There is no Sixth Amendment right to “cross-
examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
92
been addressed by calling witnesses in her own case-in-chief—a remedy fully
compatible with Coffin v. United States, 156 U.S. 432 (1895) (cited by Jones
Br. 62), which merely held that it is not “incumbent on the accused to show
the lawfulness of their acts.” Id. at 461.
B. The district court properly denied Jones’s motion to sever.27
“Generally, persons indicted together should be tried together,” United
States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992), and defendants were
indicted together. (R. 3, Indictment, 5-62.) Joint trials “promote efficiency
and ‘serve the interests of justice by avoiding the scandal and inequity of
inconsistent verdicts.’” Zafiro v. United States, 506 U.S. 534, 537 (1993)
(quoting Richardson, 481 U.S. at 210). For that reason, “a district court should
grant a severance under Rule 14 only if there is a serious risk that a joint trial
would compromise a specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence.” Id. at 539.
The decision to grant or deny a severance is within the sound discretion
of the trial court, and the defendant must show “compelling and specific
27
Once trial has commenced, a motion to sever is properly characterized
as a motion for mistrial. (See R. 480, Memorandum 12367 (citing United States
v. Blankenship, 382 F.3d 1110, 1119 n.20 (11th Cir. 2004), and noting that
“Defendants conceded that their mid-trial motions for severance should
properly be treated as motions for a mistrial”).)
93
prejudice” to establish abuse of that discretion. United States v. Sherlin, 67 F.3d
1208, 1215 (6th Cir. 1995). “The defendant bears a heavy burden since jurors
are presumed to follow the court’s instruction to consider each defendant’s
case separately.” Id. Jones has failed to carry that heavy burden here.28 As
discussed above, she was not prejudiced by the recordings, particularly because
her counsel elicited testimony, and thereafter argued, that she was not present
when the recordings were made. (R. 424, Tr. 10467; R. 511, Tr. 12871.)
It is not enough to assert that the recordings were inflammatory (Jones
Br. 68-69, 70), because “inflammatory evidence” admitted against one
defendant “does not, in and of itself, show substantial prejudice” as to any
other co-defendant in a joint trial. United States v. Gallo, 763 F.2d 1504, 1525
(6th Cir. 1985) (severance not required where evidence of “gruesome and
brutal murders” was admitted against some but not all defendants in joint
28
Nor does Wombold shoulder the load. Though he asserts, in passing,
that the district court should have granted severance or declared a mistrial
(Wombold Br. 53), he did not explicitly raise that issue for this Court’s review
(id. at 3). Given Fed. R. App. P. 28(a)(5)’s “unambiguously mandatory”
terms, this Court deems waived any claim not listed in the “issues presented”
section of an appellant’s brief. E.g., Barrett v. Detroit Heading, LLC, 311
F. App’x 779, 796 (6th Cir. 2009) (citing United States v. Baylor, 517 F.3d 899,
903 (6th Cir. 2008)). In any event, Wombold’s request for severance was
rightly denied for the same reasons Jones’s request was denied.
94
trial). That is particularly true here, where the recordings comprised a small
fraction of the evidence at trial, were carefully cabined to the case against
Hazelwood, and were never mentioned by the government again—facts that
distinguish this case from those on which Jones relies. See, e.g., United States v.
McRae, 702 F.3d 806, 824-28 (5th Cir. 2012) (severance required where
prosecution introduced a “ton of horrible evidence” against co-defendant and
attempted to link appellant to that evidence); United States v. Cortinas, 142 F.3d
242, 248 (5th Cir. 1998) (defendants prejudiced by “overwhelming evidence”
of the violent, criminal activities of a motorcycle gang to which they had no
connection); United States v. Baker, 98 F.3d 330, 335 (8th Cir. 1996) (severance
required where defendants were not charged with conspiracy and “[m]ost of
the evidence”—parts of which were “very prejudicial and highly
inflammatory”—was properly admissible only against co-defendant).
Nor was severance required merely because Jones may have played a
subordinate role in the conspiracy or because some of the evidence presented
did not pertain directly to her. (See Jones Br. 69-71.) See United States v.
Gardiner, 463 F.3d 445, 473 (6th Cir. 2006) (“that more evidence was presented
at trial against [a co-defendant] is not enough to show specific, actual or
compelling prejudice”); United States v. Carson, 702 F.2d 351, 366-67 (2d Cir.
1983) (“differing levels of culpability and proof are inevitable in any multi-
95
defendant trial and, standing alone, are insufficient grounds for separate
trials”). All the evidence presented at trial “involved the conspiracy and the
common scheme,” so any “disparity of evidence against defendants is not
sufficient by itself to warrant a severance.” United States v. Weiner, 988 F.2d
629, 634 (6th Cir. 1993) (severance not required despite “much evidence about
transactions in which [appellant] did not participate”). Even where one
defendant “prompt[s] the Government to present rebuttal evidence . . . which
d[oes] not pertain to [a co-defendant],” severance is not required where the
“central evidence of the . . . scheme that gave rise to the charges against both
defendants [i]s the same.” United States v. Graham, 484 F.3d 413, 419 (6th Cir.
2007).
In any case, any risk of spillover prejudice, either from the recordings or
from any other evidence, was cured by repeated instructions that the jury
should consider evidence against each defendant separately. See United States v.
Washington, 565 F. App’x 458, 466 (6th Cir. 2014) (“As a general rule, a
spillover of evidence does not require severance and may be cured by limiting
instructions.” (citation omitted)); Zafiro, 506 U.S. at 539 (“limiting
instructions[] often will suffice to cure any risk of prejudice”). “Juries are
presumed to be capable of following instructions, like those given in this case,
regarding the sorting of evidence and the separate consideration of multiple
96
defendants.” Walls, 293 F.3d at 966; accord Olano, 507 U.S. at 740. Indeed, the
fact that Jones was acquitted of four of five charged counts is strong evidence
that the jury was able to weigh the evidence against her individually. See Gallo,
763 F.2d at 1526 (affirming denial of severance, in part because the fact that
jury acquitted each appellant on some counts and convicted them on others
“strongly suggest[ed] that the jury was not confused by the testimony adduced
at trial, and was able to attribute to each appellant evidence pertinent to that
particular party”); United States v. Tarango, 396 F.3d 666, 675 (5th Cir. 2005)
(“[W]hen a jury returns a ‘split’ verdict, wherein it finds a defendant guilty as
to some charges but not as to others, there is a presumption that the jury was
able to follow the trial court’s instructions that the evidence was to be weighed
against the co-defendants individually.”). The district court rightly declined to
sever Jones’s trial from that of her co-defendants.
C. The district court properly admitted lay opinion testimony

from Seay.
1. Seay’s testimony was admissible under Rule 701 as

lay opinion.
The district court rightly applied Fed. R. Evid. 701 to allow lay opinion
testimony from Seay to quantify discounts withheld from six victim customers
and to summarize Pilot’s monthly profit-and-loss statements. See United States
v. White, 492 F.3d 380, 398 (6th Cir. 2007) (“We review for abuse of discretion
97
. . . rulings on witness testimony under Rules 701 and 702 of the Federal Rules
of Evidence.”). Seay was not an “expert” within the meaning of Rule 702
because his testimony was limited to opinions based on his own perceptions,
which were necessarily informed by particularized knowledge he possessed as
a result of his employment at Pilot.
Rule 701 allows lay witnesses to offer opinions and inferences
“(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.” Fed. R. Evid. 701. The drafters of the rule “intended to
preserve the practice of treating certain testimony based on particularized
knowledge gained through personal experience as lay opinion.” United States v.
Kerley, 784 F.3d 327, 339 (6th Cir. 2015). The Advisory Committee’s note
specifically gives the example of an “officer of a business” allowed “to testify
to the value or projected profits of the business, without the necessity of
qualifying the witness as an . . . expert.” Fed. R. Evid. 701 adv. comm. note
(2000), quoted in Kerley, 784 F.3d at 339. “Such opinion testimony is admitted
not because of experience, training or specialized knowledge within the realm
of an expert, but because of the particularized knowledge that the witness has
by virtue of his or her position in the business.” Id.
98
It does not take specialized knowledge to understand that a customer
will incur financial harm if it does not receive the discount it was promised.
Nor does it take specialized knowledge to understand that such harm can be
quantified by comparing the discount promised to the discount delivered. (See,
e.g., R. 443, Tr. 11177-81 (Seay comparing “the original rebate amount paid to
what that rebate would have been had cost plus zero been applied”).) The jury
heard precisely the same type of evidence from other lay witnesses, including
Ralenkotter, who testified that Pilot had to pay Smith Transport more than
$67,000 for shorting Smith four cents a gallon over a three-month period.
(R. 337, Tr. 7546-48; see also GX 1207, A669-78; GX 506-A, A540-41.) Seay
thus “engaged in a process of reasoning familiar in everyday life.” Kerley, 784
F.3d at 340 (quoting United States v. Cuti, 720 F.3d 453, 460 (2d Cir. 2013)).
Any particularized knowledge that Seay needed to calculate the
difference between discounts promised and discounts delivered was gained
by virtue of his position at Pilot. (R. 429, Tr. 10891-92.) The data he relied
on, for example, was “kept and maintained and integrated in the ordinary
course of business at Pilot.” (Id.) And the tools he used to process that data
were tools that he helped create as a Pilot employee. (Id., 10854-56.) Pilot
developed those tools on its own initiative and selected Seay to supervise their
creation based on his experience with the company as an accountant and data
99
analytics specialist. (Id., 10844-56.) It was Seay’s job to determine how much
the company shorted its customers, and his particularized knowledge on that
subject was derived exclusively from his employment at Pilot.
This case is thus analogous to Kerley, in which this Court held that
underwriting representatives of two lenders could testify under Rule 701 about
whether the lenders would have approved certain loans if they had known that
the borrowers were not supplying their own down-payment funds at closing.
784 F.3d at 336-40. It did not matter that neither witness was personally
involved in the loan transactions, because a lay witness may opine “about a
business’s policies, practices, or procedures, based on an after-the-fact review
or analysis of documents or facts, if the witness’s testimony derived from
personal knowledge gained through participation in the business’s day-to-day
affairs.” Id. at 337-38 (collecting cases). Nor did it matter that the witnesses
relied on particularized knowledge of mortgage underwriting standards and the
process of applying them, because they acquired that knowledge through their
employment. Id. at 338-40.
The fact that Seay constructed his data-processing tools only after federal
agents executed a search warrant at Pilot headquarters does not, as defendants
imply, make him an expert within the meaning of Rule 702. (See Hazelwood
Br. 61; Jones Br. 77-78.) As the district court found, “Seay’s work on the
100
audit was not undertaken on behalf of the Government or to advance this
prosecution. Rather, it was assigned to him as part of new job duties in
connection with his employment, because Pilot needed to know the scope of
the wrongdoing for its own purposes.” (R. 274, Memorandum 5963.) Seay’s
knowledge was thus “gained through participation in the business’s day-to-day
affairs.” Kerley, 784 F.3d at 337; see also United States v. Rigas, 490 F.3d 208,
224 (2d Cir. 2007) (“A witness’s specialized knowledge, or the fact that he was
chosen to carry out an investigation because of this knowledge, does not render
his testimony ‘expert’ as long as it was based on his ‘investigation and reflected
his investigatory findings and conclusions, and was not rooted exclusively in
his expertise . . .’” (quoting Bank of China, N.Y. Branch v. NBM LLC, 359 F.3d
171, 181 (2d Cir. 2004))).
The lay witness in United States v. Valencia, 600 F.3d 389 (5th Cir. 2010),
did not even complete the relevant analysis before he left the company, but was
subpoenaed by the government before trial “to pick up where he left off.” Id.
at 413. The witness, the former chief risk officer of Dynegy, used specialized
systems and data provided by Dynegy to analyze “Dynegy’s various natural
gas trading positions and how Dynegy stood to benefit from changes in
published price indices.” Kerley, 784 F.3d at 337 (discussing Valencia). Even
though the witness only completed his analysis at the government’s request—
101
and used specialized tools to do so—the court deemed him a lay witness, not
an expert witness, because his opinions were “based upon personal knowledge
and experience gained while employed by Dynegy.” Valencia, 600 F.3d at 416.
“He engaged in precisely the kind of analysis he regularly performed as chief
risk officer; the fact that he drew particular opinions and projection for the
purposes of this case does not make him an ‘expert’ within the meaning of
Federal Rule of Evidence 702.” Id. Seay did the same, and was likewise not
an expert within the meaning of Rule 702.
Defendants’ reliance on United States v. Ganier, 468 F.3d 920 (6th Cir.
2006), and United States v. White, 492 F.3d 380 (6th Cir. 2007) is misplaced.
(Hazelwood Br. 63-64; Jones Br. 75-76, 79.) In Ganier, this Court affirmed the
exclusion of testimony from an IRS forensic computer specialist with no
previous connection to any company involved in the case. 468 F.3d at 926-27.
Here, in contrast, Seay was first and foremost a Pilot employee, and thus
eligible to testify about information “derived from personal knowledge gained
through participation in the business’s day-to-day affairs.” Kerley, 784 F.3d at
337. And in White, this Court reasoned that Rule 701 allowed witnesses to
testify about an audit of Medicare cost reports they personally conducted, but
not to describe the complex structure of the Medicare system generally. 492
F.3d at 403-05. Here, Seay “personally perceived” how the Manual Rebate
102
and Off-Invoice tools were constructed to aggregate data to facilitate Pilot’s
audit of Cost-Plus discounts to thousands of its customers. Thus, White does
not suggest that the district court erred in admitting Seay’s testimony.
Hazelwood’s claim that the government asked Seay to conduct
calculations based on unverified “assumptions” is equally without merit.
(Hazelwood Br. 61.) The government asked Seay to assume only that six Pilot
customers actually received the cost-plus discounts that had been fraudulently
promised to them and to calculate how much money should have been saved
or rebated from their Pilot diesel fuel purchases. Such an assumption is
conceptually no different from the assumptions requested of the in-house
underwriting witnesses in Kerley who were asked to assume that the lenders
knew the borrowers were not bringing their own cash to closing and, based on
that assumption, to testify whether the lenders would have approved the loans.
Moreover, Hazelwood’s objection—i.e., that Seay did not independently verify
that the discount identified by the government had in fact been promised to the
victim customer—goes only to the weight of Seay’s testimony, not its
admissibility. (Hazelwood Br. 61-62.) It was up to the jury, not Seay, to
decide whether cost-plus discounts the government identified were in fact
promised to the six customers.
103
Similarly, Jones’s contention—i.e., that Seay could not personally verify
the accuracy of all the Pilot business records processed into the Manual Rebate
and Off-Invoice tools—did not undermine Seay’s particularized knowledge
regarding the tools’ creation and use that he gained during Pilot’s internal
audit. (Jones Br. 79-80.) See Burlington N. R.R. Co. v. Nebraska, 802 F.2d 994,
1004–05 (8th Cir. 1986) (“Personal knowledge or perception acquired through
review of records prepared in the ordinary course of business, or perceptions
based on industry experience, is a sufficient foundation for lay opinion
testimony.”). Jones’s criticism challenged the reliability of the data itself, not
Seay’s knowledge and experience with the accounting tools that managed it.
Jones’s argument was properly rejected by the district court when it ruled that
the exhibits summarizing the results of the discount recalculations for the six
example customers satisfied the requirements of Fed. R. Evid. 1006 for
voluminous record summaries—a ruling Jones does not challenge on appeal.
(See R. 443, Tr. 11176.)
2. The district court correctly admitted voluminous record

summaries of Pilot Profit and Loss Statements during
Seay’s testimony because they satisfied the requirements
of Rule 1006.
In addition to using his accounting tools to calculate the difference
between discounts received and discounts promised, Seay served as a
104
foundation witness to establish that certain exhibits summarized voluminous
business records. (R. 443, Tr. 11188-96, R. 445, Tr. 11304-08.) Those
exhibits, which aggregated Pilot’s monthly Profit and Loss Statements for the
six customers about which Seay testified, were introduced to help the jury
understand the profit Pilot made by fraudulently inducing those customers to
purchase its fuel. Defendants do not deny that the profit summaries were
properly admitted under Fed. R. Evid. 1006, and Hazelwood’s claim that
“Seay produced [the] summaries” from “government provided . . . inputs” is
incorrect. (Hazelwood Br. 59.)
3. Even if erroneous, admission of Seay’s testimony was

harmless.
Even assuming that the district court abused its discretion by allowing
Seay to offer his opinion as a lay witness—it did not—such error was harmless.
See Bank of China, 359 F.3d at 182-83 (requiring harmless-error analysis).
Although evidence of financial harm is relevant to show intent to defraud,
United States v. Sutherlin, 118 F. App’x 911, 914 (6th Cir. 2004), the jury heard
more than enough evidence from other witnesses to conclude both that Pilot’s
customers suffered financial harm and that defendants had a financial
incentive to commit fraud. (See, e.g., R. 337, Tr. 7546-48; GX 1207, A669-78
(Pilot had to pay Smith Transport more than $67,000 for shorting Smith four
105
cents a gallon over a three-month period); R. 356, Tr. 9072-73 (Mosher, when
“hammering for a promotion,” brought P&L statements to meetings with
Hazelwood and Wombold to show how much additional profit he made for
Pilot through rebate fraud).) And even setting such specific evidence aside,
the jury heard ample evidence of defendants’ guilt, rendering any evidentiary
errors harmless. See Section II, infra.
Neither Hazelwood nor Jones identifies any specific prejudice flowing
from Seay’s opinion testimony. Hazelwood claims the admission of Seay’s
testimony and related summaries “significant[ly]” prejudiced him because it
“allowed the government to put a $56 million price tag on the fraud.”
(Hazelwood Br. 64.) But the government’s direct examination of Seay was
limited to six example customers, and made no mention of the scheme’s
aggregate loss amount. It was Hazelwood’s counsel who asked Seay to
confirm that “in total, Pilot paid more than 56 million back to customers they
thought lost money due to fraud.” (R. 443, Tr. 11089.) He cannot now claim
that an answer he elicited constitutes reversible error.
Moreover, whether Pilot paid $56 million to its customers is a question
of fact, not opinion—lay or otherwise. So the allegedly-prejudicial testimony
would have been admissible even if the district court had forbidden Seay from
offering opinion testimony under Rule 701.
106
Jones argues that Seay’s testimony hindered her ability to “demonstrate
that [she] gained only a pittance from carrying out Mosher’s instructions.”
(Jones Br. 81.) But as Jones acknowledges, a defense expert testified that “over
the 53 months of Jones’ alleged involvement in the scheme, she received only
$246—$4.64 per month—in additional commission compensation.” (Jones Br.
81-82, citing R. 471, Tr. 12210-11.) And those figures were “based on the
rebate changes calculated by Mr. Seay.” (R. 471, Tr. 12210-11.) The specific
figures Seay offered, then, did not prejudice Jones’s attempts to show that she
earned little in extra commission.
D. A multiple-conspiracies instruction was not appropriate.
“A district court is not required to give a multiple conspiracy instruction
where only one conspiracy is alleged and proved.” United States v. Ghazaleh,
58 F.3d 240, 244 (6th Cir. 1995) (quoting United States v. Lash, 937 F.2d 1077,
1086 (6th Cir. 1991)). The instruction is only warranted when “the evidence is
such that the jury could within reason find more than one conspiracy.” United
States v. Warner, 690 F.2d 545, 551 (6th Cir. 1982). “[W]hether single or
multiple conspiracies have been shown is usually a question of fact to be
resolved by the jury and is to be considered on appeal in the light most
favorable to the government.” Ghazaleh, 58 F.3d at 244-45 (alterations
omitted) (quoting United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994)).
107
The district court’s refusal to give a jury instruction is reviewed for abuse
of discretion. United States v. Dhaliwal, 464 F. App’x 498, 507 (6th Cir. 2012).
The district court did not abuse its discretion by finding a single conspiracy.
1. The evidence at trial proved a single conspiracy.
“[I]n order to prove a single conspiracy, the government must show that
each alleged member agreed to participate in what he knew to be a collective
venture directed toward a common goal.” Warner, 690 F.2d at 549 (1982)
(alteration original) (quoting United States v. Martino, 664 F.2d 860, 876 (2d Cir.
1981)). The fact that a single conspiracy may be divided into sub-agreements
does not mean that more than one conspiracy exists. Ghazaleh, 58 F.3d at 245.
“The key is to determine whether the different sub-groups are acting in
furtherance of one overarching plan.” Id.
The evidence at trial amply demonstrated that the individuals identified
by Jones as allegedly running “independent” schemes—including Mosher,
Freeman, and Ralenkotter—actually conspired together, along with Jones and
others, to commit wire fraud and mail fraud for the purpose of achieving the
joint goals, as alleged in the indictment, of “increas[ing] Pilot’s market share
of diesel fuel sales over its competitors,” “maximiz[ing] Pilot’s profit for each
gallon of diesel fuel sold to trucking companies targeted by the conspiracy,”
“maximiz[ing] the conspirators’ potential for profit- and commission-based
108
compensation,” and “compet[ing] with and achiev[ing] recognition among
each other.” (R. 182, Amended Superseding Indictment, 4760.)
For example, during the October 2012 corporate retreat, the direct-sales
management team—which included Mosher, Freeman, Ralenkotter,
Wombold, and Hazelwood—demonstrated their mutual agreement to further
the criminal objects of the conspiracy by agreeing that Mosher would teach
rebate fraud at the upcoming November 2012 all-staff sales meeting.
(GX 503-A, A535-38; GX 509-A, A545-46; R. 358, Tr. 9040-41.) Freeman
asked Mosher to “[t]each the subordinates how to manipulate the customer’s
discounts without their knowledge, which resulted in additional profits for
Pilot Flying J,” and to “[m]ake sure [there was] something … in the teaching
session about being careful and not getting caught.” (R. 356, Tr. 9040-41.)
According to that plan, Mosher taught a breakout session on manual
rebates at the November 2012 all-staff sales meeting, explaining “[h]ow to
target unsophisticated trucking companies, how to cheat them out of their due
rebate, and how to get away with it.” (R. 356, Tr. 9042-43; see also GX 514,
A552-62; R. 358, Tr. 9096-114; R. 336, Tr. 7264-304; R. 522, Tr. 14057.)
Individuals who actively participated in that session included Mosher and
Wombold from “National Accounts,” Radford from “Southeast Sales,” Jones
from “Northeast and Western Sales,” and Ralenkotter from “Northeast Sales.”
109
(GX 514, A552-62; see also JDX 318-A, A731 (organizational chart).) Faced
with such strong evidence of coordination across the direct-sales division, no
reasonable jury could find that the regional sales teams were separate,
unrelated conspiracies.
That coordination predated October 2012. By then, Mosher already had
a reputation for being “best” at manual rebates. (See R. 356, Tr. 9038-39;
GX 503-A, A536.) Between 2008 and 2011, Mosher, Ralenkotter, Stinnett,
and Spiewak each sent Hazelwood trip reports informing him of efforts to
defraud customers, signaling their understanding that such fraud was part of a
larger effort to benefit Pilot. (GX 606-B, 606-C, A596-601; GX 611, 612, 615,
A614-24; GX 1101, A660-62.) Hazelwood urged Mosher to participate in the
fraud (R. 358, Tr. 9213-14; 356, Tr. 9074), directly approved a fraudulent deal
(GX 902, A657-59), and was informed that his employees had cheated
customer Smith until Smith noticed a discrepancy in its discount (R. 445, Tr.
11409-410).
Regional account representatives like Jones also engaged in coordinated
activity showing that they were acting in furtherance of an overarching
scheme. For example, Jones taught Holden—who worked in a different sales
region—how to make spreadsheets showing customer rebates, how Mosher
would make adjustments to those rebates, and how Holden should create a
110
“manipulated spreadsheet” to reflect the fraudulent rebate amount. (R. 445,
Tr. 11477-79.) Holden, in turn, taught a new hire about manually
manipulating rebates. (R. 445, Tr. 114667-69, 11471-742; GX 2151, A717-18;
GX 2181, 2186, A721-22; see also R. 521, Tr. 13715.) And Welch, Holden, and
Mann coordinated their efforts to track deceptive manual rebate reductions on
similarly organized spreadsheets. (R. 336, Tr. 7263-64; GX 2187, A723-24.)
At trial, Welch testified that “[t]he entire . . . inside sales team,” which
included Jones as well as Katy Bibee, Holly Radford, Ashley Judd, Lexie
Hold, Karen Mann, and others, was involved “in an agreement . . . to commit
fraud.” (R. 336, Tr. 7425-26.) Radford testified that “there was a culture to
defraud some of our customers” and “[e]veryone knew about it.” (R. 354, Tr.
8838-39, 8684-85.) And when Vicki Borden emailed all the inside sales
employees—including Jones—to say that management had agreed to hire
additional staff, Borden proposed that the new hires “[g]enerat[e] manual
rebates to send to each inside rep to modify for approval.” (GX 2169, A719;
R. 522, Tr. 14019-20.) Viewed in the light most favorable to the government,
the evidence establishes a single unified conspiracy.
The fact that competition existed within Pilot’s direct-sales division did
not mandate a multiple-conspiracies instruction. (See Jones Br. 88-90.) To the
contrary, a shared understanding between Mosher, Freeman, and others that
111
they were competing against each other to get more customers, sell more
gallons, and make more money for Pilot is fully consistent with a shared
understanding that they were defrauding customers for the same purpose. Nor
would it matter if the outside sales representatives had operated independently,
with different practices and without sharing details of individual customers
with other representatives. (Id., 87-89.) The essence of a conspiracy is
agreement, not operational uniformity. Ghazaleh, 58 F.3d at 245. Moreover,
“it is not necessary for each conspirator to participate in every phase of the
criminal venture, provided there is assent to contribute to a common
enterprise.” Id. (quoting United States v. Hughes, 895 F.2d 1135, 1140 (6th Cir.
1990)). The proof at trial showed that the individuals Jones claims were
heading separate conspiracies—Freeman, Ralenkotter, and Mosher—jointly
agreed to participate in a scheme to defraud certain Pilot trucking company
customers in violation of the mail and wire fraud statutes, and a multiple-
conspiracy instruction was therefore not appropriate.
2. In any event, Jones concedes that any separate,

simultaneous conspiracies merged in 2012.
In any case, a multiple conspiracy instruction would not have been
appropriate even if “distinct networks were independently operating within
Pilot’s sales regions.” (Jones Br. 86.) Even assuming that “simultaneous,
112
separate conspiracies” once existed, Jones concedes that they “merged into a
broader effort” at the October 2012 lake-house meeting. (Id., 92.) So if Jones
were a member of any of the separate conspiracies, she became a member of
the overarching conspiracy upon merger. See Smith v. United States, 568 U.S.
106, 107 (2013) (“Upon joining a criminal conspiracy, a defendant’s
membership in the ongoing unlawful scheme continues until he withdraws.”).
Even adopting Jones’s view of the facts, therefore, no reasonable jury could
find that Jones was a member of a separate conspiracy without also being a
member of the overarching conspiracy alleged in the indictment. And because no
reasonable jury could find that Jones “belonged to a conspiracy other than that
which was charged,” United States v. Fultz, Nos. 95-5722, 95-5723, 95-5822,
1996 WL 273736 at *1 (6th Cir. May 22, 1996), a multiple conspiracy
instruction was not required.
That is true even if, as Jones asserts, almost all of the evidence of her
participation in the conspiracy pre-dates October 2012. (Jones Br. 93.) Even
assuming that Jones “was no longer an active participant in the conspiracy” at
that time, she “is nonetheless presumed to be a continuing member, and is
chargeable for the subsequent acts of co-conspirators, so long the conspiracy
was ongoing and [Jones] did not establish [her] affirmative withdrawal from
the conspiracy.” United States v. Robinson, 390 F.3d 853, 882 (6th Cir. 2004).
113
Moreover, “[m]ere cessation of activity” or connection with the conspiracy is
not sufficient to establish withdrawal. Lash, 937 F.2d at 1083, 1085 (6th Cir.
1991). Rather, “[i]n order to establish withdrawal, a defendant must show that
he or she took affirmative action to defeat or disavow the purpose of the
conspiracy.” Id. at 1083. Jones did not raise a withdrawal defense at trial and
has made no such showing here. See id. (“Defendants have the burden of
proving withdrawal because it is an affirmative defense.”). Her concession
that the purportedly-separate conspiracies merged into a single conspiracy in
2012 is therefore fatal to her claim.29
3. Jones did not suffer substantial prejudice.
“[T]o obtain a reversal for failure to give a requested multiple-conspiracy
charge, the defendant must show . . . substantial prejudice resulting from the
29
Jones alludes to a “variance from the indictment.” (Jones Br. 93.)
“Within the context of a conspiracy, a variance constitutes reversible error
only if a defendant demonstrates that he was prejudiced by the variance and
that the indictment alleged one conspiracy, but the evidence can reasonably be
construed only as supporting a finding of multiple conspiracies.” United States
v. Robinson, 547 F.3d 632, 642 (6th Cir. 2008) (internal marks omitted,
emphasis original). As discussed above, that is not the case here. Moreover,
“the concept of variance is designed to prevent the prosecution from convicting
the defendant of a different offense, not a lesser variation on the charged
offense.” United States v. Hughes, 505 F.3d 578, 587 (6th Cir. 2007) (marks
omitted). Proof of a unified conspiracy lasting from October 2012 to April
2013 rather than from February 2008 to April 2013 would therefore not be a
prejudicial variance from the indictment.
114
failure to give the requested charge.” United States v. Jones, No. 94-3092, 1995
WL 351317, at *4 (6th Cir. June 9, 1995) (citing United States v. Maldonado-
Rivera, 992 F.2d 934, 962-63 (2d Cir. 1990)). “Substantial rights . . . are
affected only when a defendant shows ‘prejudice to his ability to defend
himself at trial, to the general fairness of the trial, or to the indictment’s
sufficiency to bar subsequent prosecutions.’” United States v. Zelinka, 862 F.2d
92, 97 (6th Cir. 1988) (citations and internal quotations omitted); see also United
States v. Calderon, 127 F.3d 1314, 1330 (11th Cir. 1997) (“To find such
prejudice, we would have to conclude that the evidence of multiple
conspiracies was so strong that the jury would probably have acquitted
appellants of the conspiracy charges had it been given the . . . instruction.”).
Here, the alleged evidence of multiple conspiracies was not so strong
that the jury would “probably” have acquitted Jones if a multiple-conspiracies
instruction had been given. And the record refutes the idea that the absence
of a multiple-conspiracies instruction somehow deprived Jones of a defense
theory. (Jones Br. 91.) From beginning to end, Jones’s principal defense was
that she was incapable of forming an intent to join the conspiracy to commit
mail and wire fraud because she, in good faith, innocently followed the
direction of a more knowledgeable superior. (See R. 520, Tr. 13419; R. 511,
Tr. 12830-38, 12866-70.) The jury rejected that defense based on the weight of
115
the evidence, including her volunteered statement during Mosher’s Rebate
Fraud lesson at Pilot headquarters in November 2012: “to the point of them
[customers] not knowing, I mean, on a percentagewise, very few of ‘em
actually ask for backup. I would say less than 10%.” (GX 514-A, A558.)
E. The district court did not plainly err by instructing the jury
to disbelieve evidence not offered for its truth.
While cross-examining Claudeane Whaley, a Pilot payroll employee
who testified about how commissions were paid, Wombold’s counsel
attempted to introduce emails regarding some of the data underlying those
commissions. (R. 429, Tr. 10774-76.) Whaley was not the recipient or sender
of any of the emails, and the government objected on hearsay grounds. (Id.,
10776.) Wombold’s counsel replied that he was not offering the emails for
their truth, but merely “to show that it was said”—i.e., that they existed. (Id.,
10777.) The court asked whether Wombold was “willing, then, to instruct the
jury that they should disbelieve everything in the document, they should
assume everything in the document to be not true.” (Id., 10777-78.) The court
explained, “if you will stipulate that the jury should consider everything in the
document to be untrue, then I think we can . . . let you use them. If, though,
there is a possibility the jury might assume that anything in the documents [is]
true, I think we do have a hearsay problem” requiring the exhibits’ exclusion.
116
(Id.) Wombold, through counsel, stipulated that the jury should be instructed
to “consider everything in the document[s] to be untrue.” (Id., 10778.)
Because Wombold agreed to the instruction at the time, his current
challenge to it is reviewable only for plain error. United States v. Young, 847
F.3d 328, 349 (6th Cir. 2017). The district court did not plainly err by
instructing the jury to presume emails to be untrue because they were offered
“to prove only that their content was conveyed” and “not for the truth of the
matter asserted.” (Wombold Br. 67.) See United States v. Mays, 69 F.3d 116,
120-21 (6th Cir. 1995) (holding that test results were properly admitted for a
non-hearsay purpose and noting that the court “instructed the jury several
times to assume that the testing was not reliable”). Wombold’s argument to
the contrary proves too much if anything at all: if the truth of the emails were
critical, the emails would have been excluded altogether as hearsay.
Moreover, Wombold suffered no prejudice from the instruction because
he was allowed to ask Whaley if she was aware of the content of the emails—
precisely the non-hearsay purpose for which he said he wanted to present the
evidence. Wombold’s counsel showed 18 emails or email conversations to
Whaley, asking whether she had been aware of them when she processed
commissions; Whaley said she was not. (R. 429, Tr. 10779-94.) Having
achieved his stated purpose for offering the evidence, Wombold cannot show
117
prejudice that would warrant a new trial. See In re Air Crash Disaster, 86 F.3d
498, 526 (6th Cir. 1996) (“absent actual prejudice,” this Court will not reverse
an evidentiary ruling, even if erroneous).
F. The district court did not abuse its discretion by refusing to

allow Wombold to admit recordings containing inadmissible
hearsay.
During trial, Wombold sought to introduce a recording of himself
expressing concern about Pilot employees with low-paying jobs and wishing
that those employees would receive greater pay and benefits; he said he was
willing to “make a little less” to “make sure that [Pilot] employees were taken
care of.” (R. 524, Tr. 14341-42; Wombold Sent. Ex. 6-A, A746-47.) 30 The
recording was an out-of-court statement offered for its truth, so the district
court properly excluded it as hearsay. (R. 524, Tr. 14341-47.)
Wombold’s argument that the recording should have been admitted as
evidence of his then-existing state of mind under Rule 803(3) (Wombold
Br. 69-71) is flawed for several reasons.
First, the recording from February 24, 2012, was not contemporaneous
with the February 11, 2011 wire fraud of which Wombold was convicted. For
30
Wombold incorrectly labels the exhibit as Sent. Ex. 1-A. (Wombold
Br. 70; but see R. 750-2, Exhibit List, 20831 (identifying transcript of Feb. 24,
2012 recording as Exhibit 6-A).)
118
a statement to be admissible under Rule 803(3), “the declarant must not have
had an opportunity to reflect and possibly fabricate or misrepresent his
thoughts.” United States v. LeMaster, 54 F.3d 1224, 1231 (6th Cir. 1995).
Statements made days, even hours, after the event in question have been
deemed insufficiently contemporaneous to qualify. See id. at 1231-32 (24
hours); United States v. Mendez, 303 F. App’x 323, 325-26 (6th Cir. 2008)
(two days); United States v. Macey, 8 F.3d 462, 467-68 (7th Cir. 1993) (four
hours). Here, the recorded statement was made twelve months after the events
underlying Wombold’s wire fraud conviction, giving Wombold ample time to
misrepresent or change his state of mind. The exception found in Rule 803(3)
for a statement of the declarant’s “then-existing” state of mind, therefore, does
not apply. 31
Second, the proffered recording abounds with the type of hearsay-within-
hearsay that Rule 803(3) forbids. The district court found that “some . . . if not
31
Wombold may contend that the statement was contemporaneous with
the ongoing conspiracy, which was alleged to have lasted from February 2008
to April 2013. (R. 182, Amended Superseding Indictment, 4759.) The district
court rejected that argument because the statement was made “near the end of
the conspiracy” and therefore did not “have any bearing on whether or not
Mr. Wombold entered into the conspiracy at the time alleged.” (R. 524, Tr.
14346.) Even if the district court had erred—it did not—by disallowing the
recording upon deeming it irrelevant to the conspiracy charge, the error was
necessarily harmless, because Wombold was acquitted of the conspiracy.
119
most of the statements” on the recording “are about things [Wombold] either
said previously to other people or things other people had said to him.”
(R. 524, Tr. 14343-44.) Wombold’s statement that he was willing to “make a
little less,” for example, was something he had said or imagined saying during
a remembered conversation with Pilot’s owner. (Wombold Sent. Ex. 6-A,
A746-47.) Such statements of memory—“to prove the fact remembered”—are
specifically excluded from Rule 803(3). Likewise, the recording contains
statements explaining why Wombold professed to believe that Pilot employees
“should be taken care of”—for example, because Pilot was “making $900
million dollars a year” while some employees were “making $11 or $12 dollars
an hour” without benefits. (Id., A746.) Such statements of belief are also
specifically excluded from Rule 803(3). See Daniels v. Lafler, 192 F. App’x 408,
424 (6th Cir. 2006) (“[T]he state-of-mind exception does not permit the witness
to relate any of the declarant’s statements as to why he held the particular state
of mind, or what he might have believed that would have induced the state of
mind.” (quoting United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980))).
In light of the hearsay-within-hearsay problem, the recording was properly
excluded under Rule 803(3).
Finally, the district court did not abuse its discretion by finding that the
recording was not, in fact, probative of any relevant state of mind. Although
120
Wombold expressed a willingness to make a little less to achieve a specific
objective—benefits for Pilot employees—he did not express a generalized
desire to make less money. Nor did he express a willingness to make less
money so that Pilot’s customers could get better deals or receive more in rebates.
As the district court found, the statement did “not reflect an intent or plan to
take any action” and did “not reflect Mr. Wombold’s state of emotional,
sensory, or physical condition, other than . . . that he does not feel good about
the lowly paid employees who were not getting benefits.” (R. 524, Tr. 14343.)
The district court did not err, therefore, in finding that the statement was not
probative of whether Wombold was motivated by money to cheat customers.
G. The district court’s occasional references to the Medellín drug

cartel explained otherwise-abstract legal concepts and did not
unfairly bias the jury against defendants.
On a few occasions, the court referenced an infamous Colombian drug
cartel to explain various concepts regarding conspiracy. For example, when
disallowing certain questioning because the definition of conspiracy is outside
“the ken of the average layperson,” the court noted a possible exception:
“Perhaps someone grew up in the Medellín cartel, and perhaps they talked
about conspiracies all the time so they had a very, very good idea of what it
means. But from what I’ve heard, that’s not the experience of this particular
witness.” (R. 336, Tr. 7421-22.) Similarly, the court referenced the cartel—
121
and invited the jury to imagine a Colombian drug supplier, a Mexican
go-between, and an American distributor—when explaining that a member of
a conspiracy need not know every other member of the conspiracy (id., 7428-
29), although co-conspirators must act in furtherance of the goals of the
conspiracy (R. 337, Tr. 7564). The court also described a hypothetical drug
conspiracy to illustrate that a co-conspirator’s statement to keep another person
in the conspiracy need not be true to have the intended effect—and therefore
need not be offered for the truth of the matter as relevant to the hearsay rules.
(R. 521, Tr. 13723-24.)
The court was not alone in analogizing to other criminal conduct. 32
Counsel for Jones asked one witness if he had ever “described the different
regions in the direct-sales division as being almost like rival gangs.” (R. 522,
Tr. 13864.) During closing argument, Wombold’s counsel characterized the
court’s analogies as “very helpful in understanding things,” then compared
32
Nor was criminal activity the only type of analogy used by the court.
When assessing whether testimony was admissible as lay opinion, for example,
the court clarified the parties’ positions using examples about cake-baking,
automobile repair, and farming. (E.g., R. 443, Tr. 11082-86, 11099, 11101-02.)
During the jury charge, the court referenced a bucket brigade near a burning
building to illustrate how one might tacitly agree to act in concert with others.
(R. 513, Tr. 13176-77.) During sentencing, after the district court referenced a
machine and a football team, Jones’s counsel deemed both analogies “apt”
and adopted one for his own purposes. (R. 741, Sent. Tr. 20670.)
122
the November 2012 sales meeting to “a group of drug dealers” going to “a
community meeting in their neighborhood . . . to recruit people to sell drugs
for their organization.” (R. 512, Tr. 12902-04.) And Hazelwood’s counsel
analogized the charged conspiracy to “capital murder,” labeling Mosher the
“triggerman.” (Id., 13030.)
Because defendants did not contemporaneously object to the district
court’s comments, they are reviewed for plain error, Young, 847 F.3d at 349,
and no such error occurred. Defendants were not on trial for drug crimes,
and no reasonable jury could interpret the court’s examples as implying that
defendants had any connection to a cartel. Cf. United States v. Echavarria-Olarte,
904 F.2d 1391, 1397-99 (9th Cir. 1990) (cited by Wombold Br. 74) (admission
of expert testimony about the Medellín cartel was unfairly prejudicial to
defendant charged with conspiring to import cocaine from Columbia).
Moreover, the court used the Medellín cartel solely to explain otherwise-
abstract concepts of conspiracy law, not as a commentary on the evidence.
Cf. Quercia v. United States, 289 U.S. 466, 699-700 (1933) (cited by Wombold
Br. 72) (trial judge erred by inappropriately commenting on and adding to
evidence). And the court instructed the jury that its “rulings were based on the
rules of evidence,” but its “comments and questions [we]re not evidence.”
(R. 513, Tr. 13170, 13166.) Armed with such instructions, plus instructions
123
about the government’s burden of proof (id., 13165), the jury was not
“compelled” by the court’s occasional cartel references to find Wombold
guilty. (Wombold Br. 74-75.) Reversal is not warranted.
II. Ample evidence proving defendants’ guilt rendered any alleged

evidentiary errors harmless.
Even if this Court were to find some evidence improperly admitted or
excluded at trial, any such error is harmless given the strength of the evidence
supporting the jury’s verdict. See Tompkin v. Philip Morris USA, Inc., 362 F.3d
882, 897 (6th Cir. 2004) (evidentiary errors merit reversal only where “more
than harmless”). “An error is harmless unless one can say, with fair assurance
that the error materially affected the defendant’s substantial rights—that the
judgment was substantially swayed by the error.” United States v. Allen, 619
F.3d 518, 523 (6th Cir. 2010) (quotation marks and citation omitted). Here,
the evidence of guilt rendered any erroneous evidentiary rulings harmless.
A. The strength of the evidence against Hazelwood rendered any

evidentiary errors harmless as to him.
Among other evidence that Hazelwood committed wire fraud and joined
a conspiracy to do so, 33 the jury heard the following:
33
A conviction for wire fraud requires proof that a defendant (1) devised
or willfully participated in a scheme to defraud, (2) used or caused use of an
interstate wire communication in furtherance of the scheme, and (3) intended
to deprive a victim of money or property. United States v. Cunningham, 679
124
• Hazelwood directly supervised Pilot’s direct-sales division, and he

enjoyed the ability to hire and promote his subordinates. (JDX 192,
A727-28; R. 523, Tr. 14328-29; GX 203, GX 204, A401-04.) He stayed
informed about the activities of the direct-sales division in part by
requiring outside sales representatives to submit weekly trip reports
regarding their meetings with customers. (E.g., R. 523, Tr. 14216-20.)
He responded to several trip reports and claimed to be monitoring them
weekly. (See GX 601, 606-A, GX 606-B, GX 606-C, GX 606-D, GX
606-G, 606-H, A589, 593-613.)
• Eight of Hazelwood’s subordinates in the direct-sales division testified

that they were engaged in a scheme to defraud some of Pilot’s
customers. (See R. 521-522, Tr. 13707-876 (Christopher Andrews);
R. 522, Tr. 13877-14022 (Katy Bibee); R. 424, Tr. 10548-603 (Kevin
Clark); R. 445, Tr. 11462-545 (Lexie Holden); R. 356, 358, 361, 367,
374. Tr. 8921-9963 (Brian Mosher); R. 522, 354, Tr. 14022-14058, 8662-
8867 (Holly Radford); R. 336, 337, 348, 521, Tr. 7495-13669 (Arnold
Ralenkotter); R. 520, 336, Tr. 13441-13542, 7255-7492 (Janet Welch).)
• Hazelwood and Brian Mosher discussed whether to cheat customers at

least three times, starting in late 2007. (R. 356, Tr. 8950-51, 8956, 9065;
R. 374, Tr. 9928-29.) Hazelwood encouraged Mosher to “do it,” saying
“you need to do something on manual rebates.” (R. 356, Tr. 8950-51;
R. 358, Tr. 9213-14.)
• Mosher brought spreadsheets to meetings with Hazelwood showing the

additional profit he generated from fraudulently cutting customer
rebates. (R. 356, Tr. 9072-73.) In one such meeting, Mosher mentioned
that his commission cap prevented him from “profit[ing] from the fraud”
F.3d 355, 370 (6th Cir. 2012). A wire and mail fraud conspiracy conviction
requires proof the defendant (1) conspired with at least one other person to
commit the fraud and (2) knowingly and voluntarily joined the conspiracy.
United States v. Rogers, 769 F.3d 372, 377, 382 (6th Cir. 2014) (conspiracy under
18 U.S.C. § 1349 does not require an overt act). Defendants each concede that
some direct-sales employees participated in a scheme to defraud that intended
to deprive certain Pilot customers of money. (E.g., Hazelwood Br. 7 (“some of
Pilot’s sales team committed rebate and discount fraud”); accord Wombold
Br. 10; Jones Br. 84-85.)
125
so he was thinking about ending his participation, and Hazelwood

replied, “[t]hat wouldn’t be a very good idea.” (R. 356, Tr. 9074.)
• Another subordinate, Kevin Clark, told Hazelwood that customers were

“not getting the deal they think they’re getting.” (R. 424, Tr. 10586.)
• Hazelwood directly approved a fraudulent deal after being informed that

the customer had been offered “cp [cost plus] .015 / retail minus .045”
but that the sales team was “setting it up as cp .025 / retail minus .045.”
(GX 902, A657.)
• Hazelwood was informed of the ongoing fraud through weekly trip

reports. In one such report, Mosher said that manual rebates “[s]hould
save approx. 350k on the [A]ugust gallons,” and Hazelwood replied,
“nice.” (GX 606-C, A600.) In another, Jay Stinnett indicated that
“our discount wasn’t in correctly (at least what they assume they receive
manually).” A few days later, Hazelwood replied, “Awesome great job
Jay getem.” (GX 606-B, A596.) Other trip reports likewise informed
Hazelwood that his direct-sales subordinates were deceiving customers
into purchasing Pilot diesel fuel through false discount promises.
(GX 1101, A660-62; GX 611, 612, 612, A614-24.)
• After Smith Transport noticed a discrepancy between their promised

discount and the discount they received, Dan Peyton called Hazelwood
to say they’d “cheated the customer out of four cents a gallon.” (R. 445,
11409-410.) Hazelwood said they’d “take care of it,” and Ralenkotter
later sent an email, copying Hazelwood, directing that Smith be paid
“the difference between what they thought they got and what we
‘mistakenly’ were charging.” (GX 1205, A668.) Ralenkotter used the
word “mistakenly” in quotes so that the sales representatives would
know to “tell [Smith] that we made a mistake to cover up that we
cheated them.” (R. 337, Tr. 7545.)
• A new Pilot employee was taught about manual rebates so he would not
be “blindsided” about it while traveling with Hazelwood for business.
(R. 445, Tr. 114667-69, 11471-742; GX 2151, A717-18; GX 2181, 2186,
A721-22.)
• Hazelwood agreed that Mosher should teach a breakout session on

manual rebates at the November 2012 all-staff meeting. (GX 509-A,
A545-46; accord R. 356, Tr. 9077-78.) While recommending such
126
training, Freeman reminded Hazelwood of an earlier occasion when

Pilot bought an airplane to placate and compensate a customer who had
caught Freeman deceptively reducing their discounts. (GX 509-A,
A545; R. 356, Tr. 9038; see also GX 506-A, A540-41.)
• During the all-staff meeting, Hazelwood told some employees about a

new hire expected to bring new customers with him, and said, “[W]e’re
gonna introduce him to a guy by the name of Manuel.” (GX 517-A,
A563-67.) “Manuel,” was a play on the words “manual rebate” and was
often used to refer to defrauding customers. (R. 358, Tr. 9119; R. 361,
Tr. 9291; R. 522, Tr. 13836.)
• At a February 2013 management meeting, Hazelwood advocated

expanding the scheme by having his subordinates sort customers into
one of two categories—“everybody who’s not watchin’ his own cost-plus
. . . [a]nd then everybody that does watch”—so the unsophisticated
customers could be targeted. (R. 358, Tr. 9131-38; GX 523-A, A581.)
Immediately following the meeting, Hazelwood mused to Freeman,
Wombold, and Mosher, “Aunt Bea. That’s what we’ll call this, Aunt
Bea pricing,” and then said, “We got Manuel, Manuel does a helluva
job.” (GX 524-A, A582.) A few days later, in an email sent from Texas
to Tennessee, Hazelwood directed his subordinates to “get cost plus B
plan going ASAP.” (R. 358, Tr. 9139-42; R. 424, Tr. 10490-91, 10614-
15; GX 2217, A715.) Mosher testified that he understood that message
as an instruction to advance the existing fraud “to the next level.”
(R. 358, Tr. 9135.)
The jury also heard ample evidence from which it could conclude that
Hazelwood sought to corruptly persuade Blake not to tell federal investigators
that he had read trip reports regarding the fraudulent scheme, i.e., that he
engaged in witness tampering: 34
34
Witness tampering occurs when a defendant (1) knowingly and
willfully used intimidation, threatened, or corruptly persuaded another person,
(2) with the intent to hinder, delay, or prevent the communication to a federal
127
• Hazelwood was told in April 2013 that the FBI and IRS were
investigating a federal criminal offense “generally concern[ing] [Pilot’s]
manual rebates to diesel fuel customers.” (R. 445, Tr. 11449.)
• Blake was present during the April 2013 search of Pilot headquarters and
was interviewed by federal agents. (R. 523, Tr. 14221.) That evening,
she told Hazelwood she had “met with the FBI.” (Id.)
• In June 2014, Hazelwood called Blake, said that he knew she had told a
defense investigator that he read trip reports, and told her that she
“need[ed] to know” that he “didn’t read” them because he “didn’t have
any way to respond to the trip reports.” (R. 523, Tr. 14227.) He
continued: “I know I was a bulldog when I asked for them, but . . .
I didn’t read them. Do you understand?” (Id.)
• Hazelwood not only read, but also responded to, trip reports. (GX
606-B, 606-C, 611, 612, 615, A596, A600-601, A614, A621; see also R.
523, Tr. 14258 (Hazelwood’s counsel conceding that statement that
Hazelwood “never” read trip reports “cannot be right, because you
know he’s responded to some”).)
Given the volume and strength of the evidence against Hazelwood, any
alleged evidentiary errors at trial—including the admission of the recordings—
were harmless.
B. The strength of the evidence against Wombold rendered any

evidentiary errors harmless as to him and also defeats his
sufficiency-of-the-evidence claim.
Ample evidence likewise established that Wombold committed wire
fraud and did so as part of a larger scheme to that effect:
official, (3) of information relating to the commission or possible commission

of a federal offense. United States v. Eaton, 784 F.3d 298, 304 (6th Cir. 2015).
128
• Beginning in November 2010, Wombold directly supervised Mosher’s

sales team, including Jones. (R. 356, Tr. 8924-25; R. 367, Tr. 9653-54;
see also GX 204, A404.)
• Wombold attended meetings with Hazelwood to review subordinates’

profit-and-loss statements. (R. 337, Tr. 7738; R. 522, Tr. 13838-39.)
Mosher brought his manual-rebate spreadsheets to these meetings and
showed Wombold and Hazelwood how much additional profit he had
generated for Pilot by fraudulently cutting customer rebates. (R. 356, Tr.
9072-73.)
• In February 2011, Jones sought permission, on Mosher’s behalf, to offer

customer Amerifreight a deep discount of cost-minus-.03. (GX 1602,
A687.) Although Wombold initially questioned the size of the account,
he approved the deal, by an email sent from Tennessee to Iowa, as soon
as Mosher replied, “Manual Rebate.” (Id.; R. 356, Tr. 8977-78; R. 424,
Tr. 10609-11.) Wombold thereby approved “manually cheat[ing] that
customer on a monthly basis, going forward.” (R. 356, Tr. 8989-90.)
• In 2012, Wombold flagged Ryder’s account as “a great account” for

Mosher and instructed Mosher “to keep Ryder’s rebate at or below
$100,000 a month.” (GX 1801, A695; R. 356, 9016-17.) The result was
a “completely made up” discount that was “i[n] no way representative”
of the deal Ryder had been promised. (R. 356, Tr. 9023-24.)
• When talking to Lexie Holden about Mosher’s conduct in 2013,

Wombold admitted that he knew “rebate adjustments were happening”
and “st[uck] his head in the sand.” (R. 445, Tr. 11485-86.)
• Wombold was present at the October 2012 management meeting and

participated in the selection of Mosher to teach at an upcoming all-staff
meeting about manipulating customer discounts. (GX 503-A, A535-38;
R. 356, Tr. 9040-41.)
• Wombold attended Mosher’s training session at the November 2012 all-

staff meeting and was the highest-ranking Pilot executive present.
(GX 514-A, A552-62; R. 356, Tr. 8924; R. 354, Tr. 8862.) During the
session, Wombold rationalized the manual rebate process by explaining
that, if a customer had been receiving $25,000 in rebates in previous
months but was due $75,000 next month, “[w]e don’t need to pay that
guy $75,000.” (GX 514-A, A557.) When a new hire said he was
129
“struggling with the gray part” of Mosher’s teaching, Wombold did not
disavow Mosher’s encouragement of deceptive conduct, but instead
communicated that he knew exactly what Mosher was advocating,
“hav[ing] worked as close [with Mosher] as anybody.” (Id., A559-60.)
Wombold urged the new hire to “get [his] mind comfortable with” what
Mosher was teaching and to “wrap [his] mind” around “how [to] utilize
this information.” (Id., A560)
• Wombold also attended the February 2013 directors-and-above

management meeting at which Hazelwood advocated expansion of the
scheme. (R. 358, Tr. 9122-243; GX 522, 523, 524, A574-583.)
That evidence also defeats Wombold’s challenge to the sufficiency of the
evidence for his wire-fraud conviction. (Wombold Br. 55-66.) This Court
views the evidence “in the light most favorable to the government” and asks
whether “any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt.” United States v. Sadler, 750 F.3d 585, 589-90 (6th
Cir. 2014) (quotation marks and citations omitted). The requisite elements are
that a defendant (1) willfully participated in a scheme to defraud, (2) used or
caused use of an interstate wire communication in furtherance of the scheme,
and (3) intended to deprive a victim of money or property. Cunningham,
679 F.3d at 370. Here, any rational jury could have found that Wombold
participated in a scheme to defraud Amerifreight by approving, by email, a
“Manual Rebate” deal designed to “cheat that customer on a monthly basis,
going forward.” (R. 356, Tr. 8989-90.)
130
Contrary to Wombold’s assertion (Wombold Br. 57-62), ample evidence
established that Wombold knew of and willfully participated in the scheme.
Mosher specifically testified that he intended his email message—“Manual
Rebate”—to convey his plan to defraud Amerifreight, and that he interpreted
Wombold’s reply—“Approved”—as authorization to do so. (R. 356, Tr. 8989-
90.) That testimony alone, if credited by the jury, could sustain Wombold’s
conviction. See United States v. Stewart, 628 F.3d 246, 255 (6th Cir. 2010)
(“even the uncorroborated testimony of an accomplice may support a
conviction” (internal citation omitted)).
The jury also heard evidence that Mosher had used manual rebates
prolifically for several years before the February 2011 Amerifreight deal. (E.g.
R. 367, Tr. 9609-10 (testimony that Mosher defrauded 74 customers in July
2010).) Surrounded by a “culture to defraud” (R. 354, Tr. 8838-39), Mosher
earned a special reputation for being the “best” at manual rebates (R. 356, Tr.
9038-39). Wombold was Mosher’s direct supervisor (R. 356, Tr. 8924) and
participated in meetings regarding Mosher’s profit-and-loss statements at
which Mosher also detailed how much additional profit he had generated for
Pilot by fraudulently cutting customer rebates (Id., 9072-73). Moreover,
Wombold stated at the November 2012 training session on rebate fraud that he
had worked with Mosher “as close together as anybody” (GX 514-A, A560)
131
and he told Holden in 2013 that he had been “aware that rebate adjustments
were happening” (R. 445, Tr. 11485-86).
The evidence supports the finding that Wombold understood the phrase
“Manual Rebate”—capital M, capital R—to signal fraud when he approved
the Amerifreight deal. Wombold asserts that there may have been legitimate
business reasons for him to approve the deal (e.g., Wombold Br. 62-65), but
that cannot overcome the evidence showing that Wombold approved it with
knowledge and intent that Mosher would fraudulently reduce Amerifreight’s
rebates. Wombold may have been initially concerned about the deal when he
asked about the size of the Amerifreight account. (GX 1602, A687.) But when
Mosher replied, “Manual Rebate,” without providing any other information,
Wombold immediately approved the deal without further question. (Id.) It is
true that another Pilot employee sent details about the account (GX 1603,
A690), but her email was sent simultaneously with Wombold’s approval to
Mosher and did not appear in the same email chain (GX 1602, A687). The
jury could reasonably infer that both men understood the size of the account
and the terms of the deal to be irrelevant, because—as he testified at trial—
Mosher intended to fraudulently reduce Amerifreight’s discount anyway.
(R. 356, Tr. 8989-90.)
The totality of the evidence amply supported Wombold’s conviction.
132
C. The strength of the evidence against Jones rendered any

evidentiary errors harmless as to her.
As with the other defendants, there was sufficient evidence of Jones’s
guilt to render any of the alleged evidentiary errors harmless.
• Mosher told Jones via email, “We are going to give JTL Trailers . . .
Cost Plus .04 / .04 off retail,” although “[t]hey will think it is Cost Plus
.02 / .04 off retail.” (GX 1502 (ellipses original), A679.) Jones promptly
agreed: “OK.” (Id.) Mosher and Jones then contrived to further
underpay JTL. (R. 356, Tr. 8935-40.)
• Mosher sent Jones an email that, as to customer Hayes Transport, he

wanted “a manual rebate of Cost + .04 / Retail Minus .04” even though
“[t]he customer thinks the deal is Cost + .02 / Retail Minus .04.”
(GX 2114, A713-14.) Jones agreed. (Id.)
• Mosher gave Jones similar instructions regarding Marathon Electric,

indicating that he had falsely promised them cost-plus-.03 but wanted
her to calculate the rebate as cost-plus-.045. (GX 2117, A715.) “OK,”
Jones responded. (Id.)
• Jones sought permission on Mosher’s behalf to offer Amerifreight a deep

discount of cost-minus-.03; Wombold approved the deal, and with it the
plan to “manually cheat that customer on a monthly basis, going
forward.” (GX 1602, A687; R. 356, Tr. 8989-90)
• Jones repeatedly adjusted backup numbers to support the rebates that

Mosher fraudulently reduced. (R. 356, Tr. 9010-11; R. 374, Tr. 9958.)
• Jones taught Lexie Holden how to make spreadsheets showing customer

rebates, how Mosher would make adjustments to those rebates, and how
Holden should create a “manipulated spreadsheet” to reflect the
fraudulent rebate amount. (R. 445, Tr. 11477-79, 11530-32.)
• Jones, along with all the other inside sales employees, was asked to
identify tasks that could be delegated to new hires; one suggestion was
“[g]enerating manual rebates to send to each inside rep to modify for
approval.” (GX 2169, A719; R. 522, Tr. 14019-20.)
133
• Jones attended Mosher’s breakout session at the November 2012 all-staff

meeting and commented, during the discussion of rebate fraud, “And to
the point of [the customers] not knowing, . . . very few of ‘em actually
ask for backup. I would say less than 10%.” (GX 514-A, A558; R. 358,
Tr. 9106-07.)
The totality of that evidence renders any evidentiary errors harmless.
III. The district court properly exercised its discretion by denying

Hazelwood’s untimely motion for a new trial.
“Motions for a new trial are not favored and are granted only with great
caution.” United States v. Garner, 529 F.2d 962, 969 (6th Cir. 1976); see also
Fed. R. Crim. P. 33(a) (court may grant new trial if “the interest of justice so
requires.”). A defendant “bears the burden of showing that a new trial ought
to be granted.” United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991). And
absent a clear abuse of discretion, this Court will not reverse a district court’s
ruling on a motion for new trial. Id. The same standard of review applies to
the decision whether to conduct a hearing. United States v. O’Dell, 805 F.2d
637, 640 (6th Cir. 1986).
In most cases, a new-trial motion must be filed within 14 days after the
verdict. Fed. R. Crim. P. 33(b)(2). Hazelwood did not file his new-trial
motion until 130 days after the jury returned its verdict on February 15, 2018
(R. 484, Verdict, 12376-78; R. 566, Motion, 14594-635), and he thereafter filed
four supplements, the last of which was filed on August 31, 2018, i.e., 197 days
after the verdict. (R. 656, Supplement, 18076-81.) In addition to the

134
paradigmatic subject for a new-trial motion—i.e., whether the verdict was
against the weight of the evidence, United States v. Munoz, 605 F.3d 359, 373
(6th Cir. 2010)—Hazelwood’s five filings alleged a miscarriage of justice and
multiple complaints about the district court, the prosecutors, and his trial
counsel.35 (R. 701, Memorandum, 19565-67 (cataloguing the claims).)
The United States opposed Hazelwood’s motion as untimely and
unreviewable, unless the court were to find excusable neglect, which exists
“only in extraordinary cases.” (E.g., R. 578, Response, 14925-26 (quoting
Nicholson v. City of Warren, 467 F.3d 525, 526 (6th Cir. 2006), and discussing
Fed. R. Crim. P. 45(b)).) The district court found no excusable neglect and
denied Hazelwood’s motion as untimely. (R. 701, Memorandum, 19561-608.)
In making that determination, the district court explicitly considered the
factors from Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395
(1993): “(1) the danger of prejudice to the nonmoving party, (2) the length of
the delay and its potential impact on the judicial proceedings, (3) the reason
for the delay, (4) whether the delay was within the reasonable control of the
35
For example, Hazelwood disputed inherently strategic decisions about
several audio recordings, an electronic calendar entry about Blake’s interview
with investigators, a bribery theory of witness tampering, and the alleged
discontinuation of the A/B pricing scheme. (R. 701, Memorandum, 19566-67,
19588-90, 19593-94.) Hazelwood also faulted counsel for not consulting him
about filing a new-trial motion regarding those issues. (Id., 19575-77.)
135
moving party, and (5) whether the late-filing party acted in good faith.”
(R. 701, Memorandum, 19571-72 (quoting Munoz, 605 F.3d at 368).) The
court found two factors weighing in favor of excusable neglect—i.e., minimal
danger of prejudice to the government, and Hazelwood’s good faith—and one
weighing “slightly against” a finding of excusable neglect—i.e., the length of
the delay and its potential impact on the judicial proceedings. (Id., 19579-81.)
As for the reason for delay, which deserves the greatest weight, Munoz,
605 F.3d at 372, the court found that Hazelwood’s explanations related only
to his ineffectiveness claims. (R. 701, Memorandum, 19572.) Because other
courts have required “an egregious act or omission” to find excusable neglect
in that context, the district court reasoned that “merely invoking ‘ineffective
assistance of counsel’” is not enough to “overcome the otherwise inflexible
[14-day] rule” in Fed. R. Crim. P. 33(b)(2); in other words, ineffectiveness
claims must have “at least some small measure of possible merit” to constitute
a valid reason for delay. (Id., 19574-75.) Viewed in that light, Hazelwood’s
claims displayed “blatant weakness” (id., 19583) especially compared to the
ineffectiveness claims discussed in Munoz—e.g., where an attorney ignored
instructions to file a notice of appeal or made himself wholly inaccessible to a
136
client. 36 (Id., 19575 (referencing Munoz, 605 F.3d at 369-70).) “Here, at most,”
the court found, “there is only slight evidence that any of the alleged incidents
of ineffective[ness] . . . were adverse to [Hazelwood’s] interests.” 37 (Id.,
19575.) It thus found that Hazelwood had not established any valid reason for
the delay, and that the delay was in Hazelwood’s reasonable control—two
more Pioneer factors weighing against a finding of excusable neglect. (Id.)
Acknowledging that it was “somewhat novel” to consider the possible
merit of ineffectiveness claims as part of the excusable-neglect analysis, the
court also reviewed and rejected those claims on their merits. (Id., 19583-607.)
36
One of Hazelwood’s claims, for example, was that “[t]rial counsel
failed to investigate the facts relating to the government’s ‘bribery’ theory” for
the witness-tampering offense. (R. 566, Motion, 14631.) But the government
never proffered any bribery theory, and “failure to investigate a theory the
[g]overnment did not employ” does not establish deficient performance or
prejudice, much less both. (R. 701, Memorandum, 19588.) Nor is counsel
ineffective for not introducing irrelevant evidence. (Id., 19593.)
37
“[R]easonable people often differ” on trial tactics and strategy.
United States v. Medved, 905 F.2d 935, 942 (6th Cir. 1990) (no constitutional
ineffectiveness even if a defendant has “a better sense of trial strategy than his
lawyer”); accord Strickland v. Washington, 466 U.S. 668, 689 (1984) (“reasonable
professional assistance” spans a “wide range”). Even “a seemingly unusual or
misguided action by counsel [may have] had a sound strategic motive or [may
have been] taken because the counsel’s alternatives were even worse.” Massaro
v. United States, 538 U.S. 500, 505 (2003). Since Hazelwood’s ineffectiveness
claims involved inherently strategic decisions, this is a not a case in which trial
counsel’s actions were so obviously deficient and prejudicial that “fall[ing] on
his own sword for his client” was “his client’s last best hope.” Munoz, 605
F.3d at 371 (cited by Hazelwood Br. 70).
137
And the court stated, correctly, that ineffectiveness claims are usually deferred
to collateral review and that litigating such claims before appeal could
adversely affect Hazelwood’s interests. (Id., 19582-83, 19586.)
Hazelwood disputes the denial of his new-trial motion in two ways, each
unavailing. First, he claims the court “short-circuit[ed] the required excusable-
neglect analysis” by considering the merits of his ineffectiveness claims when
assessing his proffered reason for delay. (Hazelwood Br. 71.) To the contrary,
the record shows that the court thoroughly engaged the multi-factor Pioneer
standard. (R. 701, Memorandum, 19571-82.) And it was neither unreasonable
nor precluded by precedent for the district court to conclude that “merely
invoking ineffective[ness]” by prior counsel upon obtaining new counsel does
not establish a valid reason for delay. (Id., 19574.) As a result, even if some
allegations of ineffectiveness are deemed sufficient to establish a valid reason
for delay, as in Munoz, Hazelwood has not proven that the district court abused
its discretion by concluding that Hazelwood’s claims did not.
Second, Hazelwood faults the court for not holding a hearing, especially
after agreeing it “would need to take evidence” to “properly address” certain
ineffectiveness claims. 38 (Hazelwood Br. 72-73 (citing R. 701, Memorandum,
38
For example, the court said it would “have to hear testimony from”
trial counsel “for there to be any possibility of finding [t]rial [c]ounsel’s
representation to be deficient” with regard to “opening the door” for the
138
19583).) But hearings are not “required when[ever] they could plausibly
reveal a defendant’s entitlement to a new trial,” as Hazelwood claims.
(Hazelwood Br. 72-73.) Indeed, the case he cites for that proposition held only
that a hearing was required where a defendant alleged a Brady violation, the
evidence at trial had been “equivocal” as to a specific element, and a hearing
“may reveal a reasonable probability that the undisclosed testimony . . . would
have resulted in different verdicts.” United States v. Frost, 125 F.3d 346, 384
(6th Cir. 1997). To obtain a hearing based on allegations of ineffectiveness, a
defendant must first proffer some evidence that counsel was, in fact,
ineffective. United States v. Allen, 254 F. App’x 475, 478 (6th Cir. 2007); United
States v. Bass, 460 F.3d 830, 838 (6th Cir. 2006). Hazelwood failed to do so
here. 39
In sum, Hazelwood has not proven any abuse of discretion in the denial
of his untimely new-trial motion without an evidentiary hearing. The district
admission of the recordings of Hazelwood. (R. 701, Memorandum, 19586.)

But the court also found no reasonable probability that the outcome of trial
would have been different if the recordings had not been admitted. (Id.,
19587.) “[W]here a defendant cannot satisfy the Strickland standard, . . . the
‘interest of justice’ . . . does not require a new trial.” Munoz, 605 F.3d at 376.
39
Hazelwood now claims counsel did not investigate enough to discover
allegedly exculpatory evidence with regard to his witness-tampering offense.
(Hazelwood Br. 73-76.) But the evidence he references is not exculpatory at
all. (See generally R. 578, 594, Responses, 14939-45, 15192-95.)
139
court rightly concluded that Hazelwood had received a fair trial and was not
entitled to another. (R. 701, Memorandum, 19607.)
IV. Hazelwood and Wombold’s sentences are reasonable.40
This Court ordinarily reviews sentences for procedural and substantive
reasonableness under “a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). The Court first “ensure[s] that the district
court committed no significant procedural error,” e.g., by failing to properly
calculate the Guidelines range, treating it as mandatory, or failing to consider
the 18 U.S.C. § 3553(a) sentencing factors. Id. at 51. The Court then reviews
whether the sentence is “proportionate to the seriousness of the circumstances
of the offense and offender, and sufficient but not greater than necessary, to
comply with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503,
512 (6th Cir. 2008) (internal marks omitted). This Court affords a presumption
of reasonableness to a sentence within or below the applicable guidelines
range. E.g., United States v. Simmons, 587 F.3d 348, 365 (6th Cir. 2009); accord
United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). No abuse of discretion
occurred here.
40
Jones does not contest the propriety of her below-Guidelines sentence.
140
A. The district court did not abuse its discretion by declining

to grant Hazelwood a downward departure for diffuse loss.
Before sentencing, Hazelwood stipulated that he was responsible for
$3,500,001 to $5,000,000 in loss to customers. (R. 678-1, Stipulation, 18935-
37.) He sought a downward departure from the resulting offense level under
U.S.S.G § 2B1.1 Application Note 21(C), which states that a downward
departure “may be warranted” when the offense level “substantially overstates
the seriousness of the offense.” U.S.S.G. § 2B1.1, comment. (n.21(C)). The
note gives as an example a situation in which the “aggregate loss amount . . .
is substantial but diffuse, with relatively small loss amounts suffered by a
relatively large number of victims.” Id.
To support his motion, Hazelwood presented expert testimony from
economist and statistician Benjamin Wilner. (R. 733, Sent. Tr. 20134-60,
20170.) In an effort to measure “the extent to which the losses . . . would have
affected the behavior of [Pilot’s] customers,” Wilner divided the stipulated loss
amount by 78 identified customers, presupposing that all those customers were
“equally sharing in the loss,” and concluded that they suffered, on average, a
loss between $12,821 and $26,408 each year. (Id., 20138-40; R. 703-1, Report,
19645-46.) Wilner deemed such loss amounts “relatively insignificant” when
compared to those customers’ total fuel purchases, overall expenses for fuel
141
and labor, revenue, and rebates received from Pilot. (R. 733, Sent. Tr. 20140-
42.) And Wilner concluded that the loss from fraud “would not have had any
material impact on the number of truckers, the loads, or the number of trucks
that these companies had.” (Id., 20153; accord id., 20146.) On cross-
examination, however, Wilner acknowledged that “discounts are a factor in
[business] decisions.” (Id., 20159.)
The court accepted Wilner’s testimony as “true and reasonable,” but
found its value limited, given its dependence on averages. (Id., 20238-41.) The
court reasoned that Wilner’s calculation of average loss was “not evidence that
the harm to each particular victim was de minimis,” and found no evidence
either way whether any Pilot customer “suffer[ed] substantially as a result of
their losses here.” (Id., 20238-39.) The court concluded that the stipulated loss
amount and corresponding offense level did not “substantially overstate the
seriousness of the offense” and denied the motion for departure. (Id, 20241.)
That determination was not an abuse of discretion. Generally, a court's
decision to deny a downward departure “is not reviewable.” United States v.
Coleman, 188 F.3d 354, 357 (6th Cir. 1999) (en banc). “An appellate court may
only review a denial of a motion for a downward departure if the district court
judge ‘incorrectly believed that [s]he lacked any authority to consider
defendant's mitigating circumstances as well as the discretion to deviate from
142
the guidelines.’” Id. (alteration original) (quoting United States v. Landers, 39
F.3d 643, 649 (6th Cir. 1994)). Here, the district court recognized that it had
authority to consider the nature of the loss and discretion to deviate from the
guidelines, but simply found Hazelwood's argument unpersuasive. 41 That
decision should not be disturbed on appeal.
Moreover, the court did not, as Hazelwood asserts, graft a “reasonable
person” test onto the diffuse-loss inquiry. (Hazelwood Br. 84.) It is true that
the court expressed its belief that Application Note 21(C) “talk[s] about the
losses that a reasonable person would understand to be serious.” (R. 733, Tr.
20237-38.) But the court also explained that the guidelines “try[] to focus the
[c]ourt and the parties' attention upon what are the harms here” and that it had
considered whether the harms were de minimis “for all the trucking victims in
this case.” (Id., 20238-39 (emphasis added).) At most, then, the court
considered whether the loss was objectively substantial in the eyes of a
41
There are many reasons to find Hazelwood’s argument unpersuasive.
For one, the government proved at trial that the scheme’s misrepresentations
were intended to, and in fact did, cause customers to purchase diesel fuel from
Pilot rather than a competitor. (See, e.g., GX 1101, A660-62 (trip report to
Hazelwood detailing lies to retain customers); see also GX 521-A, A570-71;
GX 715, 716, 717, 718, A625-31 (Freeman, Bibee, and Stinnett lied about
promised discounts and thereby retained Queen’s business).) Thus, contrary to
the gravamen of Wilner’s opinion, the scheme to defraud affected customer
fuel-purchasing decisions.
143
reasonable person in addition to whether the loss was subjectively substantial in
the eyes of trucking-company customers. And the district court may—indeed,
must—consider all relevant factors when determining whether a downward
departure is warranted. See Coleman, 188 F.3d at 359 (“The only factors which
are . . . precluded from consideration are race, sex, national origin, creed,
religion, and socio-economic status, lack of guidance as a youth, drug or
alcohol dependency, and economic hardship.” (citations omitted).)
B. Wombold’s sentence is procedurally reasonable.
1. The district court’s findings regarding loss amount and

victims attributable to Wombold were well-supported by
the evidence.
This Court reviews a sentencing court’s factual findings for clear error
while reviewing the methodology for calculating loss de novo. United States v.
Greco, 734 F.3d 441, 444 (6th Cir. 2013); United States v. Triana, 468 F.3d 308,
321 (6th Cir. 2006). Under the Guidelines, courts use the greater of actual or
intended loss when calculating the base offense level in fraud cases; if losses
are not easily quantifiable, the district court need only make a reasonable
estimate. U.S.S.G. § 2B1.1, cmt. (n.3(C)); United States v. Washington, 715
F.3d 975, 984-85 (6th Cir. 2013). “In challenging the court’s loss calculation,
[a defendant] must carry the heavy burden of persuading this Court that the
evaluation of the loss was not only inaccurate, but outside the realm of
144
permissible calculations.” United States v. Gray, 521 F.3d 514, 543 (6th Cir.
2008) (quoting United States v. Hamilton, 263 F.3d 645, 654 (6th Cir. 2001)).
This Court reviews de novo the legal conclusion whether a person or
entity is a victim. United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012).
The Guidelines define victim to include “any person who sustained any part of
the actual loss,” and actual loss is “reasonably foreseeable pecuniary harm that
resulted from the offense.” U.S.S.G. § 2B1.1 cmt. n. 1, 3(A)(i).
Here, the district court’s methodology for determining Wombold’s
relevant conduct was correct and its factual findings regarding victim number
and loss were not clearly erroneous. After recognizing that “there were
different roles for different people in the scheme,” the court first examined the
“scope of Mr. Wombold’s participation in the scheme . . . taking the entire
scheme in mind.” (R. 735, Tr. 20636.) The court correctly found that
Wombold’s “role in the scheme” was “to oversee others, specifically Mr.
Mosher,” and, by extension, that any scheme losses caused by Mosher were
“chargeable” to Wombold. (Id., 20636.) See also United States v. Campbell,
279 F.3d 392, 400 (6th Cir. 2002) (explaining that, when holding a defendant
responsible for the actions of others under § 1B1.3(a)(1)(B), a court must make
“particularized findings with respect to both the scope of the defendant’s
agreement and the foreseeability of his co-conspirators’ conduct.”)
145
Based on the evidence at trial, the district court did not clearly err in
finding Wombold’s role in the scheme as supervising Mosher’s actions in
furtherance of the scheme. The February 11, 2011 email that served as the
wire transmission for Wombold’s conviction proved that Mosher sought and
obtained Wombold’s approval to execute rebate fraud against customers.
(GX 1602, A687.) The transcript of Mosher’s rebate fraud training session at
Pilot’s November 2012 sales meeting proved that Wombold inserted himself
into Mosher’s presentation to refine the manner in which Mosher was
encouraging participation in the scheme. (GX 514-A, A552-62.) Moreover,
Wombold’s statements during that training session proved that he knew that
Mosher had been defrauding customers since February 2011. (E.g., id., A560.)
Holden’s testimony—that Wombold said he was aware of rebate
adjustments—provided further corroboration that losses from Mosher’s
conduct were reasonably foreseeable to Wombold. In short, the district court’s
factual findings about Wombold’s role and the foreseeability of Mosher’s
conduct were grounded in credible evidence of Wombold’s personal
participation in the scheme that leveraged the power of his corporate position.
Nor did the Court clearly err in finding that $4.3 million was a
reasonable estimate of loss caused by Wombold’s participation in the scheme.
That figure was derived from evidence at trial, during which witnesses testified
146
about the amount of the fraud and about how much Pilot paid its customers
after the fraud was discovered, as well as a summary report compiled by
KraftCPAs. (R. 735, Sent. Tr. 20637-39.) Kraft listed 46 customers that the
government had identified as suffering loss from Mosher’s conduct in
furtherance of the scheme to defraud. (GX 5087-B, A742-45; R. 735, Sent.
Tr. 20359-96.) For each customer on the list, the government identified
specific evidence showing that the customer was a victim of Mosher’s conduct.
(GX 5087-B, A742-45; R. 735, Sent. Tr. 20366-96.) And Kraft calculated the
loss for each of those customers by using calculations generated by Pilot’s
internal auditors comparing the promised deal to the delivered deal, or, in
some cases, by reviewing Seay’s trial testimony. (R. 735, Sent. Tr. 20396-99,
20416-425; see also R. 443, Tr. 11182-83.) Thus, the district court’s loss
and victim findings were the logical extension of the court’s finding that
Wombold’s role in the scheme was to supervise Mosher’s scheme conduct.
Wombold’s current objections to the Kraft report misconstrue the nature
of the report. (Wombold Br. 83-88.) It is irrelevant that the report “was
created by an individual without any experience attributing conduct to
particular defendants under the Sentencing Guidelines” (id., 86), because the
customers the government attributed to Wombold were so attributed based on
Wombold’s role as Mosher’s supervisor within the scheme. Kraft’s role was
147
only to calculate, for the customers so identified, the loss they suffered from
fraud after February 2011. As the district court recognized, the report was
“not in the nature of an audit,” but was “more . . . of a compilation,” in that
KraftCPAs assembled information “in a form that could be more easily . . .
understood.” (R. 735, Sent. Tr. 20638-39.)
2. The district court did not rely on acquitted conduct when

imposing the sentence.
Contrary to Wombold’s assertion that the sentencing court relied upon
acquitted conduct (Wombold Br. 88-91), the district court expressly disclaimed
any reliance on acquitted conduct, saying it did “not find that there was any
necessity . . . to look at acquitted conduct.” (R. 735, Sent. Tr. 20637.) The
district court rightly presumed that the jury followed its instructions to find that
the February 11, 2011 email “furthered the scheme and artifice to defraud that
was alleged.” (Id., 20635.) Reviewing the jury charge and the verdict form
together shows that, to find Wombold guilty of “wire fraud on February 11,
2011, as charged in Count Two of the Indictment,” the jury was also required
to find beyond a reasonable doubt that Wombold participated in the “scheme
to defraud and to obtain money from certain interstate trucking companies by
means of materially false and fraudulent pretenses and representations
described in paragraphs 1 through 23 and paragraphs 25 through 29 of Count
148
One of [the] Indictment.” (R. 182, Indictment, 4797-98; R. 513, Jury Charge,
13179-80; R. 484, Jury Verdict, 12376-78.) Put another way, although
Wombold was acquitted of agreeing to join the joint criminal enterprise alleged
in Count 1, in violation of 18 U.S.C. § 1349, he was nonetheless convicted of
participating in that same criminal enterprise alleged in Count 1, through its
incorporation as the scheme to defraud into Count 2, in violation of 18 U.S.C.
§ 1343. The district court rightly concluded that the scheme and artifice to
defraud in which Wombold was convicted of participating covered his “full
participation in the scheme . . . and the losses,” and properly rejected
Wombold’s argument that the jury only found him guilty of the single
“communication [alleged] in the count of conviction.” (R. 735, Sent. Tr.
20635.)
V. Defendants have not proven any bias or partiality by the district court
that would warrant reassignment if this Court were to remand for any
further proceedings, nor any cumulative error warranting reversal.
“Reassignment is an extraordinary power and should be rarely invoked.”
United States v. Renal Care Group, Inc., 696 F.3d 518, 533 (6th Cir. 2012)
(internal marks omitted) (quoting Solomon v. United States, 467 F.3d 928, 935
(6th Cir. 2006)). To determine whether reassignment is necessary, this Court
considers:
149
(1) whether the original judge would reasonably be expected to

have substantial difficulty in putting out of his or her mind
previously expressed views or findings;
(2) whether reassignment is advisable to preserve the appearance

of justice; and
(3) whether reassignment would entail waste and duplication out

of proportion to any gain in preserving the appearance of
fairness.
Id. at 532-33 (quoting Solomon, 467 F.3d at 935.) “[M]istakes of law should
not warrant the use of a tool that should be wielded with ‘the greatest
reluctance.’” Id. at 533 (quoting Solomon, 467 F.3d at 935.)
The Court should be especially reluctant to grant reassignment here.
First, the record offers no basis to believe that the district court would have
substantial difficulty putting any previously-expressed views or findings out of
its mind on remand. The court’s remarks during sentencing confirmed that it
kept an open mind at all times:
The Court was considering a sentence significantly above this

before the Court came into court today. The Court does not make
a decision on what the appropriate sentence is until the Court has
had a chance to look at and hear from the defendant and the
defendant’s lawyers and counsel. The Court will say that the
arguments made by counsel had a tremendous impact on the
Court, so the Court concluded that a sentence above the guideline
range was not a reasonable sentence in this case . . . . I’m saying
that to let counsel know that all the letters, all the arguments, did
have a tremendous impact on the Court’s decision.
150
(R. 733, Tr. 20317-18.) This is not a case in which a “judge had made up his
mind that Defendants deserved a harsh sentence, without having received any
evidence to that effect,” as in United States v. Cota-Luna, 891 F.3d 639, 650 (6th
Cir. 2018) (cited by Hazelwood Br. 88, 93); nor a case in which the court
displayed “distinct hostility” toward defendants, as in Lavin v. Husted, 764 F.3d
646, 652 (6th Cir. 2014) (also cited by Hazelwood Br. 93); nor a case in which
the court repeatedly disregarded this Court’s instructions, as in United States v.
Bistline, 720 F.3d 631, 634-35 (6th Cir. 2013) (reassigning case because district
court twice failed to impose a sufficient sentence and stated, “If I have got to
send somebody like Mr. Bistline to prison, I’m sorry, someone else will have to
do it. I’m not going to do it.”).
Second, reassignment would result in significant waste and duplication of
effort, as the district court is already very familiar with the extensive facts and
legal issues in this case. Considerations of judicial economy thus weigh
against reassignment.
Third, Hazelwood has not established that the appearance of justice
would make reassignment “advisable.” He points to allegedly “unsupported”
assertions by the court during sentencing (Hazelwood Br. 88-92), but the
assertions about which he complains are, in fact, supported by the record. For
example, the district court’s account of “a young person who graduated from a
151
local college,” took a job at Pilot, and got caught up in the fraudulent scheme
was a composite of the trial testimony of several Pilot employees and was not
“invented out of whole cloth,” as Hazelwood claims. (Hazelwood Br. 90,
citing R. 733, Tr. 20312.) Lexie Holden testified that her first job after
graduating from a university in Knoxville was at Pilot’s headquarters, also
in Knoxville, and that she had pleaded guilty to the conspiracy. (R. 445, Tr.
11520, 11463-64.) The district court’s reference to “peer pressure” resembled
Katy Bibee’s testimony: “I thought, . . . this must be okay. I work at Pilot. . . .
[I]t feels like I was semi-brainwashed into thinking that these things were
ok . . . . I just think I was very skewed while working there . . . because I
trusted the people that had worked there for 20-plus years and had all the
experience, and for a company that I was so proud to work for.” (R. 522,
Tr. 13942.) Holly Radford similarly testified that the fraud was “something
[she] became numb to. It was something your superiors praised you for.” (R.
354, Tr. 8838-39.) The underlying point of these examples—that the fraud
affected Pilot employees and their careers in ways not captured in the parties’
stipulated loss amount—was not “pure fiction.” (Hazelwood Br. 91.)
Similarly, it was not “rank speculation” for the district court to conclude
that Hazelwood’s offense conduct was partially motivated by professional
ambition and a competitive nature. (Hazelwood Br. 91.) Hazelwood’s
152
counsel had elicited trial testimony that Hazelwood cared about the company’s
success, had “great ideas,” and was responsible for “just about every major
innovation that led to the growth of th[e] company.” (R. 336, Tr. 7470.) And
Hazelwood described himself as the “lead visionary and strategist” for sales at
Pilot. (JDX 192, A728.) So the district court reasonably found that
Hazelwood was “focused on the ever-increasing market share Pilot was
gaining, the increase in gallons sold, and the profitability of Pilot.” (R. 733,
Tr. 20302; cf. GX 517-A, A567 (“[W]e have to go after every angle out here . . .
. “[W]hatever, whoever’s buying a gallon of diesel, we gotta get it, okay?”)
Nor was it speculation to find that the fraud harmed Pilot’s customers,
competitors, employees, and, ultimately, Pilot. (Hazelwood Br. 91, citing
R. 733, Tr. 20309-13.) The court heard evidence, for example, that customer
Queen Transportation was cheated out of four cents per gallon, even during
difficult economic conditions. (R. 522, Tr. 14031; GX 720, A635.) Logically,
competitors were harmed, too; the point of offering discounts was to “take
gallons away from the competitors and to get gallons [for] Pilot.” (R. 520, Tr.
13459; accord R. 733, Sent. Tr. 20160.) Pilot employees, including Holden,
sustained criminal convictions (e.g., R. 445, Tr. 11463-64), and Pilot itself paid
full restitution plus a $92 million penalty (R. 669-2, Declaration, 18351.)
153
The district court’s conclusion that “all roads lead to Mr. Hazelwood”
in the direct-sales division was not “entirely unsupported by the record.”
(Hazelwood Br. 89, citing R. 733, Tr. 20308.) Hazelwood’s supervision of and
control over the direct-sales division was undisputed. (E.g., R. 520, Tr. 13351
(Hazelwood opening statement: “Hazelwood would never deny that [the sales
division] was under his supervision”).) And the district court heard ample
evidence that, in that role, Hazelwood was informed about and actively
encouraged fraudulent activity. (E.g., R. 356, Tr. 9074 (testimony that
Hazelwood told Mosher it “wouldn’t be a very good idea” to end participation
in the scheme); GX 902, A657 (approval of a fraudulent deal).)
In the end, if this Court were to remand for further proceedings,
reassignment would be not necessary to ensure the appearance of justice or
preserve the integrity of the judicial system. Yes, the district court discussed
Bernie Madoff during Hazelwood’s sentencing (Hazelwood Br. 91-92)—solely
to illustrate that criminality and good deeds are not mutually incompatible.
(R. 733, Tr. 20293-96; see also id., 20296 (“Again, I’ll repeat, I’m not using this
to compare Mr. Madoff’s situation with the defendant’s, but merely to point
out that people engaged in white-collar crimes often are also involved in
charitable pursuits, they’re good family people, . . . they work their way up
from the bottom.”).) Yes, the district court discussed Hazelwood’s reputation
154
and continued prospects in the trucking industry—both as positive factors (id.,
20287-88, 20314-15) and as enablers of his past and potentially future fraud
(id., 20301-02, 20314-15). And yes, the district court expanded and clarified its
analysis regarding the admissibility of the recordings when asked to reconsider
its evidentiary ruling. (R. 455, Memorandum, 11695-712.) But that was
entirely appropriate. Because the record does not reveal any partiality, bias, or
factually-unsupported “negative views” by the district court, as Hazelwood
claims (Hazelwood Br. 93-94), his request for reassignment should be
summarily rejected.
Wombold’s claim of cumulative error should also be summarily rejected.
(Wombold Br. 75-80.) As a preliminary matter, such a claim affords no basis
for relief where, as here, a defendant has not established any actual errors to be
accumulated. See Getsy v. Mitchell, 495 F.3d 295, 317 (6th Cir. 2007) (en banc)
(no relief is warranted if “there are simply no errors to cumulate”); accord
United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) (“a cumulative-
error analysis should evaluate only the effect of matters determined to be error,
not the cumulative effect of non-errors”).
As discussed above, the evidentiary rulings about which Wombold
complains were well within the district court’s discretion. See Sections I.A,
I.C, I.E, I.F, supra. And even if this Court were to find an error in the court’s
155
trial rulings, the error would be rendered harmless by the strong evidence of
Wombold’s guilt. See Section II.B, supra. Wombold has not shown that any
error or combination of errors rendered his trial “fundamentally unfair.” E.g.,
United States v. Warman, 578 F.3d 320, 349 (6th Cir. 2009).
In sum, the record demonstrates the trial court’s unflagging dedication to
the fairness and integrity of the criminal justice process: “It’s the [c]ourt’s role
to see that these defendants get a fair trial.” (R. 522, Tr. 13925-28 (overruling
a government objection to certain cross-examination of a cooperating witness
and explaining that “protect[ing]” a witness from perjury is not the court’s
duty); see also R. 701, Memorandum, 19585-86 (noting that the court “invested
significant time, research, and analysis” into evidentiary rulings); R. 336,
Tr. 7512-13 (urging all counsel to “control [their] emotions” and promising to
“listen to anything anybody has to say”); R. 733, Tr. 20317-18 (reiterating that
the court considered all the evidence presented to it).) The district court not
only ensured that each defendant received the fair trial guaranteed by the
Constitution, but also reasonably exercised its discretion by imposing
sentences within or below the applicable Guidelines ranges.
156
CONCLUSION
For the foregoing reasons, defendants’ judgments should be affirmed.
Respectfully submitted,
Charles E. Atchley, Jr.

Attorney for the United States
Acting under Authority Conferred
By 28 U.S.C. § 515
By: s/ Francis M. Hamilton, III

Assistant United States Attorney
and s/ Brian Samuelson

Brian Samuelson
800 Market Street, Suite 211
Knoxville, TN 37902
(865) 545-4167
157
CERTIFICATE OF SERVICE
I certify that, on July 1, 2019, this brief was filed electronically. Notice
of this filing will be sent by operation of the Court’s electronic filing system to
all parties indicated on the electronic filing receipt, and those parties may
access this brief through the Court’s electronic filing system.
s/ Francis M. Hamilton, III

RULE 32(A)(7)(B) CERTIFICATION
I certify that this brief contains 36,606 words, excluding the cover,
table of contents, table of authorities, statement regarding oral argument,
certificates of counsel, and the designation of relevant district court documents,
as provided by Fed. R. App. 32(a)(7)(B). This certification is based on the
word count of the word-processing program used by the United States,
Microsoft Word 2016. I further certify that I have sought permission from this
Court to file an oversized brief of this length.

158
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. On appeal from the United
States District Court for the
MARK HAZELWOOD, Eastern District of Tennessee
HEATHER JONES, and No. 3:16-cr-20
SCOTT WOMBOLD,
Defendants-Appellants.
ENTRY NO. DESCRIPTION OF ENTRY PAGE ID# RANGE

R. 3 Indictment 5 – 62
R. 182 Amended Superseding Indictment 4748 - 4805
R. 204 Freeman Plea Agreement 4970 - 4999
R. 206 Borden Plea Agreement 5003 - 5021
R. 208 Spiewak Plea Agreement 5025 - 5041
R. 274 Memorandum 5957 - 5965
R. 336 Nov. 8, 2017 Trial Transcript 7251 - 7515
R. 367 Dec. 6, 2017 Trial Transcript 9501 - 9694
R. 372 (Sealed) Government Motion 9733 - 9778
R. 374 Dec. 7, 2017 Trial Transcript 9789 - 9994
R. 375 (Sealed) Dec. 7, 2017 Trial Transcript 9995 - 10016
R. 413 (Sealed) Government Response 10310 - 10334
R. 424 Jan. 10. 2018 Trial Transcript 10397 - 10639
R. 429 Jan. 11, 2018 Trial Transcript 10661 - 10913
159

R. 455 Memorandum 11695 - 11712
R. 480 Memorandum & Order 12367 - 12369
R. 484 Jury Verdict 12376 - 12378
R. 486 (Sealed) Jury Communications 12382 - 12393
R. 511 Feb. 5, 2018 Trial Transcript 12635 - 12890
R. 517 (Sealed) Feb. 15, 2018 Transcript 13263 - 13299
R. 533 Hazelwood Motion 14519 - 14520
R. 545 Order 14557 - 14559
R. 554 Order 14568 - 14570
R. 555 Order 14571
R. 558 Order 14579 - 14580
R. 565 Order 14592 - 14593
R. 566 Hazelwood Motion for New Trial 14594 - 14635
R. 578 Government Response 14925 - 14985
R. 579 Hazelwood Supplement to Motion for 14986 - 14996
New Trial
160

New Trial
New Trial
R. 618 (Sealed) Wombold Objections 16092 - 16119
R. 647 Amended Witness List 18036 - 18038
New Trial
R. 669-2 Seabrook Declaration 18350 - 18354
R. 678-1 Stipulation Regarding Hazelwood 18935 - 18937
R. 684 (Sealed) Hazelwood Revised Presentence 18945 - 18977
Investigation Report
R. 700 Order Denying Hazelwood Motion for 19559 – 19560
New Trial
R. 701 Memorandum 19561 – 19608
R. 703-1 Declaration of Benjamin S. Wilner, Ph.D. 19643 - 19668
R. 710 (Sealed) Wombold Revised Presentence 19733 - 19765
Investigation Report
R. 711 (Sealed) Wombold Addendum to Revised 19766 - 19767
Presentence Investigation Report
R. 716 Hazelwood Notice of Appeal 19776 - 19777
R. 731 Hazelwood Judgment 20085 - 20091
R. 733 Sept. 26, 2018 Sentencing Transcript 20096 - 20335
R. 735 Oct. 3, 2018 Sentencing Transcript 20339 - 20648
R. 739 Jones Notice of Appeal 20657 - 20658
R. 741 Oct. 4, 2018 Sentencing Transcript 20664 - 20794
R. 742 Wombold Notice of Appeal 20795 - 20796
161

R. 743 Wombold Judgment 20797 - 20803
R. 745 Jones Judgment 20808 - 20814
R. 746 (Sealed) Jones Statement of Reasons 20815 - 20818
R. 787 Sixth Circuit Order 21264 - 21266
R. 819 Sixth Circuit Order 21515 - 21518
R. 823 Order 21615 - 21617
R. 882-1 Emails Regarding Proposed Response to 22248 – 22253
Jury Question
R. 882-2 Second Revised Response to Jury Question 22254
Related Cases:

Case No. 3:13-cr-58, United States v. Judd
11 Plea Agreement 44-58
Case No. 3:13-cr-68, United States v. Stinnett

Case No. 3:13-cr-77, United States v. Fenwick


162

Mark Hazelwood 177-Page Oversized Brief Filed July 1st by Prosecutors

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Mark Hazelwood 177-Page Oversized Brief Filed July 1st by Prosecutors

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Case: 18-6023 Document: 48 Filed: 07/01/2019 Page: 1

Case Nos. 18-6023, 18-6101, 18-6102

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

On appeal from the United States District Court

BRIEF OF THE UNITED STATES ∗

Charles E. Atchley, Jr.

Francis M. Hamilton, III

TABLE OF AUTHORITIES ...................................................................... vi

STATEMENT REGARDING ORAL ARGUMENT................................... 1

STATEMENT OF THE ISSUES ................................................................. 2

STATEMENT OF THE CASE .................................................................... 5

I. Pilot, which sells diesel fuel to trucking companies, offered discounts

II. Defendants each worked in Pilot’s direct-sales division....................... 6

A. Heather Jones ............................................................................ 9

B. Scott Wombold ....................................................................... 10

C. Mark Hazelwood ..................................................................... 10

III. Defendants and numerous others participated in a scheme to

A. As early as May 2008, Jones joined the conspiracy to defraud

B. Hazelwood had been informed about and specifically approved

C. Wombold, too, approved fraudulent discounts. ......................... 20

D. The fraudulent scheme continued to grow through the

E. The scheme was discussed and promoted in sales meetings. ....... 26

1. October 2012 management meeting ................................... 26

2. November 2012 all-staff meeting ........................................ 28

3. February 2013 management meeting ................................. 33

IV. A federal investigation culminated in a search of Pilot headquarters,

V. In June 2014, Hazelwood contacted his former executive assistant

A. Hazelwood’s defense strategy alleged his devotion to Pilot’s

B. The government sought to introduce three brief recordings

C. Darren Seay, a Pilot employee, testified as a lay witness about

D. After extensive deliberation, the jury returned split verdicts. ...... 49

VII. The court denied Hazelwood’s new-trial motion as untimely. ........... 51

VIII. Defendants were each sentenced within or below the applicable

A. Hazelwood was sentenced to 150 months’ imprisonment. ......... 55

B. Wombold was sentenced to 72 months’ imprisonment. ............. 55

C. Jones was sentenced to 33 months’ imprisonment. .................... 58

IX. Defendants appealed....................................................................... 58

SUMMARY OF ARGUMENT ................................................................. 59

A. The district court properly admitted recordings of Hazelwood,

1. The recordings were relevant under Rule 401 to rebut

a. Hazelwood argued that he would not have committed

b. The recordings were relevant to show that Hazelwood

2. The recordings were admissible under Rule 404(b)

3. In the alternative, the recordings were admissible under

4. Rule 403 does not require exclusion of the recordings. ........ 76

a. As to Hazelwood, the recordings were more probative

b. Wombold was not prejudiced by the recordings. .......... 86

c. Jones was not prejudiced by the recordings.................. 90

B. The district court properly denied Jones’s motion to sever. ........ 93

C. The district court properly admitted lay opinion testimony

1. Seay’s testimony was admissible under Rule 701 as

2. The district court correctly admitted voluminous record

3. Even if erroneous, admission of Seay’s testimony was

D. A multiple-conspiracies instruction was not appropriate. ......... 107

1. The evidence at trial proved a single conspiracy................ 108

2. In any event, Jones concedes that any separate,

3. Jones did not suffer substantial prejudice. ......................... 114

F. The district court did not abuse its discretion by refusing to

G. The district court’s occasional references to the Medellín drug

II. Ample evidence proving defendants’ guilt rendered any alleged

A. The strength of the evidence against Hazelwood rendered any

B. The strength of the evidence against Wombold rendered any