Nos. 23-5029 and 23-5560
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA
Respondent-Appellee
v.
FARADAY HOSSEINIPOUR
Petitioner-Appellant
On Appeal from the United States District Court
for the Western District of Kentucky
PETITION FOR REHEARING
EN BANC
R. Kenyon Meyer
DINSMORE & SHOHL LLP
101 South Fifth Street, Suite 2500
Louisville, KY 40202
(502) 540-2300
kenyon.meyer@dinsmore.com
Counsel for Faraday Hosseinipour
Philip E. Cecil
FULTZ MADDOX DICKENS PLC
101 S. Fifth Street, 27th Floor
Louisville, Kentucky 40202
(502) 588-2000
pcecil@fmdlegal.com
Counsel for Faraday Hosseinipour
ii
TABLE OF CONTENTS
Table of Authorities…………………………………………………………………………………….. iii
Federal Rule of Appellate Procedure 40(b) Statement ……………………………………….1
Background ………………………………………………………………………………………………….3
Argument……………………………………………………………………………………………………..5
I. The full court should resolve problems with pyramid scheme
Instructions………………………………………………………………………………..5
A. The instructions incorrectly deemed the Emperor Program
a scheme to defraud without finding specific intent……………….5
B. The instructions were unconstitutionally vague under
Percoco…………………………………………………………………………….9
C. The instructions contained a legally erroneous theory ………….11
II. The panel failed to apply Glossip to the Napue argument………………13
iii
TABLE OF AUTHORITIES
Cases Page(s)
Glossip v. Oklahoma
145 S.Ct. 612 (2025)………………………………………………… 2, 5, 13, 14, 16, 17. 18
Griffin v. United States
502 U.S. 46, 59 (1991)………………………………………………………………………..2, 11
Napue v. Illinois
360 U.S. 264, 269-70 (1959) ………………………………………………………. 13, 14, 17
Percoco v. United States
598 U.S. 319, 329 (2023) ………………………………………………………………. 2, 9, 10
Smith v. Goguen
415 U.S. 566, 574 (1974)………………………………………………………………………. 10
United States v. Feola
420 U.S. 671, 686 (1975)…………………………………………………………………….. 2, 9
United States. v. Gold Unlimited, Inc.
177 F.3d 472 (6th Cir. 1999)…………………………………………… 1, 2, 6, 7, 8, 10, 11
United States v. Maike
142 F.4th 367, 379 (6th Cir. 2025)…………………………………… 1, 5, 6, 8, 9, 10, 12
United States v. Maike
No. 22-6114, 2025 WL 1770555, at *6 (6th Cir. June 26, 2025)…………… 15, 16
United States v. Rabinowitz
327 F.2d 62, 76–77 (6th Cir. 1964)…………………………………………………………… 2
Whole Living, Inc. v. Tolman
344 F. Supp. 2d 739, 745 (D. Utah 2004)………………………………………………….11
iv
Other Authorities
Business Guidance Concerning Multi-Level Marketing, April 2024……………….. 10
FTC Staff Offers Business Guidance Concerning Multi-Level
Marketing, January 4, 2018 …………………………………………………………………… 10
Staff Advisory Opinion – Pyramid Scheme Analysis, January 14, 2004…………… 10
The Bottom Line about Multi-Level Marketing, October 2009………………………. 10
FEDERAL RULE OF APPELLATE PROCEDURE 40(b) STATEMENT
In support of rehearing en banc, this proceeding involves questions of
exceptional importance. The panel decision also conflicts with Supreme Court and
Sixth Circuit precedent.
The legality of pyramid scheme instructions in criminal cases is exceptionally
important. No other circuit has published an opinion on the issue. United States v.
Gold Unlimited, Inc., 177 F.3d 472 (6th Cir. 1999)(“Gold”), first confronted the issue
and included a suggestion that future “prudent” courts improve its instruction. Judge
Moore’s concurrence in Gold reflects a division in this Court because she concluded
that the “court erred in instructing the jury that a pyramid scheme, as the court
defined the term, necessarily constitutes a scheme to defraud.” Id. at 489. This
“err[or]” continues to be binding precedent—Judge Nalbandian in his Concurrence
here wrote, “Succeeding on [the pyramid scheme] theory was a shortcut of sorts in
[the Government’s] burden of proof.” United States. v. Maike, 142 F.4th 367, 379
(6th Cir. 2025). The full Court should address this issue because of its impact
throughout the country.
The instructions also violated Supreme Court and Sixth Circuit precedent.
The panel’s published opinion affirmed the following instruction, which applied to
the mail fraud and securities fraud conspiracy counts:
A “pyramid scheme” is any plan…or other process characterized by the
payment by participants of money to the company in return for which
2
they receive the right to sell a product and the right to receive in return
for recruiting other participants into the program reward which are
unrelated to the sale of the product to ultimate users. The structure of a
pyramid scheme suggests that the focus is on promoting the sale of
interests in the venture rather than the sale of products, where
participants earn the right to profits by recruiting other participants,
who themselves are interested in recruitment fees rather than products.
A pyramid scheme constitutes a scheme to defraud.
(R.554,#5265-66.) The last sentence of this instruction improperly allowed the jury
to presume an intent to defraud in violation of United States v. Feola, 420 U.S. 671,
686 (1975), and United States v. Rabinowitz, 327 F.2d 62, 76–77 (6th Cir. 1964). The
second sentence of the instruction resulted from the suggestion in Gold that future
courts “supplement” the instruction to “reflect the difference between legitimate
multi-level marketing and illegal pyramids,” but it did the opposite. Moreover, the
instruction, described by the panel as “abstruse,” violated Percoco v. United States,
which held fraud instructions “must be defined with the clarity typical of criminal
statutes.” 598 U.S. 319, 329 (2023). The instructions also included an invalid legal
theory (that a program capped at 5,000 that included retail revenue could constitute
a pyramid scheme) and violated Griffin v. United States, 502 U.S. at 59.
(R.554,#5265-66.)
Finally, the panel failed to apply the standard of review to the Government’s
use of false evidence set forth in Glossip v. Oklahoma, which was decided after oral
argument. 145 S.Ct. 612 (2025).
3
BACKGROUND
This trial focused on the claim that the Emperor program of Infinity 2 Global
(“I2G”), a multi-level marketing company (“MLM”), was a pyramid scheme.
Emperor participants were capped at 5,000, each of whom paid $5,000 for the usage
and resale rights of a package of present and future products to earn
commissions and for the right to share in profits I2G earned from an overseas,
online casino. Emperors who referred users to the casino received commissions
based on casino chip transactions. The success of the Emperor program depended
on the casino’s success, not endless recruiting.
Despite no saturation risk, the Government contended the Emperor program
was a pyramid scheme. (R.405,#3087.) Its proposed jury instructions were limited
to the Emperor program (R.420), and the final instructions asked whether the
Emperor program was a pyramid scheme. (R.554,#5265-68.) The defendants
defended against this theory. (R.671,#7618;R.476,#3631.)
In opening, the government made 18 references to “pyramid,” and transcripts
reference “pyramid” more than 800 times.
Appellant Hosseinipour was not one of the creators of I2G or the Emperor
program. She did not devise the plan and was a “low-level” participant.
(R.769,#11628.) Anzalone, the Government’s star witness, testified that
4
Hosseinipour would not lie, is a good person, would not deceive, and did not believe
she was doing anything improper. (R.511,#4830-31;R.505,#4760-61.)
Hosseinipour, like thousands of IBOs, joined I2G after it started.
(R.671,#7704.) She purchased Emperor packages like all the alleged victim
witnesses. But knowingly joining the Emperor program does not mean she (or other
IBOs) intended to defraud.
In its effort to prove a pyramid scheme, the Government introduced evidence
to show the percentage of IBOs who lost money. (R.498,#4163.) Government
witness Jerry Reynolds created and maintained I2G’s system that tracked financial
data. Before trial, the Government instructed him to create certain spreadsheets.
(R.498,#4209,4217.) For example, US-Exhibit 101i, named “participant gain-loss,”
purports to show how many IBOs earned more than they paid to I2G and how many
earned less than they paid. (R.498,#4163;R.487,#3876.) A declaration and
spreadsheets that Reynolds produced post-trial revealed that commissions had been
filtered out of 101i. (R.721-2;Ex.3 to R.721-2.) 101i did not include thousands of
commission transactions, which resulted in the exclusion of more than $7 million in
earnings by Emperors alone. (Ex.3 to R.721-2.) These Emperor commissions were
tracked by Reynolds’ system but not included in 101i. 101i shows Emperors earned
approximately $1.2 million, but his system actually tracked Emperor earnings of
$8.2 million. (Ex.3 to R.721-2.) 101i shows only 579 Emperors earned commissions,
5
but Reynolds’ system actually showed 3,308 unique Emperors by DealerID earned
commissions. (Compare US-101i with Ex.3 to R.722-2.) US-7240, another
spreadsheet generated from Reynolds’ system, reveals that his system tracked more
than $25 million in commissions earned by individuals that were filtered out of 101i.
(Compare US-7240 with US-101i). The Government had Reynolds remove this
exculpatory information from 101i.
Reynolds falsely testified that 101i reflected all the gains and losses tracked
by his system. (R.498,#4163.) Other witnesses relied on 101i and even the panel
twice cited the incorrect 96% loss rate from 101i. See Maike, 142 F.4th at 373-75.
The Government relied on 96% in opening and closing. (R.485,#3735;
R.671,#7724.) A rehearing should be granted to consider these facts in accordance
with the standard recently expressed in Glossip. 145 S.Ct 612.
ARGUMENT
I. The full court should resolve problems with pyramid scheme instructions.
A. The instructions incorrectly deemed the Emperor Program a
scheme to defraud without finding specific intent.
The instructions permitted Hosseinipour’s conspiracy convictions without a
finding of specific intent to defraud. The panel noted that the fraudulent nature of a
pyramid scheme is “implicit—any such scheme is doomed to fail—rather than
explicit.” Maike, 142 F.4th at 375. “Thus—the defendants rightly observe—in the
jury’s mind, a finding that defendants participated in a pyramid scheme could
6
substitute for a finding that they participated in a fraudulent scheme.” Id. The panel
also agreed that pyramid scheme definition did not require the jury expressly to find
it fraudulent. Id. But the panel incorrectly held that the instructions elsewhere
required a finding of fraudulent intent.
Unlike in Gold, Hosseinipour was charged with conspiracy. Instructions 3 had
2 elements: that two or more defendants agreed with another person to commit mail
fraud as defined in Instruction 8 and that Hosseinipour knowingly and voluntarily
joined the conspiracy. (R.554,#5259-60.) The district court denied the defendants’
request to include a third element: that defendants acted with the intent to defraud.
(R.545,#5221; R.692,#9912.) Here, like all IBOs, Hosseinipour knowingly joined
I2G; therefore, the critical question was whether she agreed to commit mail fraud as
defined by Instruction 8.
Instruction 8 began by correctly articulating the elements of mail fraud. It then
defined “scheme to defraud” as a “plan…by which someone intends to deprive
another of money…by means of false or fraudulent pretenses.” (R.554,#5265.) Then
the instruction defined pyramid scheme and directed the jury was a pyramid scheme
was a scheme to defraud. (Id. at #5265-66.)
The panel held the instructions were duplicative enough to salvage the
pyramid scheme definition’s missing intent element: “Instruction 8 directed the jury
to make a finding as to every component of a scheme to defraud.” Maike, 142 F.4th
7
at 376. However, because this was a conspiracy charge, Instruction 3 did not direct
the jury to find every component under Instruction 8—the charge at issue required
only an agreement to commit mail fraud. (R.554,#5259.) Further, Instruction 8
directed the jury that a pyramid scheme was a “scheme to defraud,” which it defined
to include intent. (Id.#5265-66.) Reading Instruction 8 as written, a finding of a
pyramid scheme required a finding of a “scheme to defraud,” which was deemed to
include intent.
Gold first grappled with this issue on plain error review. There, the defendant
devised the scheme, and the Court held it was not plain error to instruct that a
pyramid scheme was a scheme to defraud because the jury also had to find that the
defendant “knowingly devised” the scheme. Gold at 485. Here, Instruction 8 only
required “that the defendant knowingly participated in or devised” the pyramid
scheme. All IBOs, including Hosseinipour, knowingly participated in I2G. Thus, this
element did not cure the error for Hosseinipour.
In the Gold concurrence, Judge Moore found that instructing that a pyramid
scheme necessarily constituted a scheme to defraud was error. Gold at 490. Judge
Moore found the error harmless because the jury was required to separately find the
defendant acted with the intent to defraud. Hosseinpour did not enjoy this safeguard
because the conspiracy instruction contained no such instruction, and Instruction 8
directed that “scheme to defraud” included intent.
8
Hosseinipour was substantially prejudiced by this error because the
Government argued that the defendants “don’t have to know the official definition
of a pyramid scheme.” (R.690,#9369.) In closing, the Government argued that a
defendant does not have to know the official definition of pyramid scheme.
(R.671,#7689.) The Government argued, “[Did Anzalone know] what is a pyramid
scheme[?]… No. Can he still commit the crime? Absolutely.” Id.
Under the Government’s reading of the instructions, Hosseinipour did not
have to know what makes a pyramid scheme fraudulent. As the Concurrence noted,
“if a jury finds a pyramid scheme, it necessarily finds a scheme to defraud.” Maike,
142 F.4th at 383. Stated otherwise, “[p]yramid is a surrogate for everything except
use of the mails.” Id. at 383 fn. 2.
Under the instructions, the jury was permitted to convict Hosseinipour
without the necessary elements for both conspiracies. The jury instructions
eliminated Hosseinipour’s primary defense, which was extremely prejudicial.
The full Court should address the ongoing implications of Gold. MLMs have
an estimated 20 million distributors in the economy. And all MLMs “contain some
elements of a pyramid scheme;” “[n]o clear line separates illegal pyramid schemes
from legitimate [MLMs].” Gold at 475-80. Yet, as the Concurrence here explained,
Gold holds that “[s]ucceeding on [a pyramid scheme] theory was a shortcut of sorts
in its burden of proof.” Maike, 142 F.4th at 379. There should never be a shortcut for
9
the burden of proof, especially regarding an industry commonly understood to be
legal. This shortcut is especially dangerous for people like Hosseinipour who join an
existing MLM. Pyramid schemes are inherently fraudulent because people who join
them do not know they are destined to fail. Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d
629, 643 (5th Cir. 2016)(en banc). Hosseinipour, like thousands of others, joined
I2G, without knowing it was a pyramid scheme. Because the Government claimed
that Hosseinipour transitioned between legitimate and unlawful conduct, the need
for consideration of her intent was essential. Feola, 420 U.S. at 685.
B. The instructions were unconstitutionally vague under Percoco.
The panel held, “[f]ederal law does not proscribe pyramid schemes
specifically….[T]he definition of a pyramid scheme is abstruse.” Maike, 142 F.4th
at 376. The “abstruse” instruction violated Percoco. 143 S.Ct. 1130. Percoco held
an instruction “must be defined with the clarity typical of criminal statutes and
should not be held to reach an illdefined category of circumstances simply because
of a smattering of [previous court] decisions.” Id. at 1137. The Concurrence
confirmed “the jury instructions…were too vague….And the Constitution’s promise
of due process does not tolerate that kind of uncertainty in our laws–especially when
criminal sanctions loom.” Id. at 1139. The Court held that precedent relied on in
instructions must define illegal acts “with sufficient definiteness that ordinary people
can understand what conduct is prohibited or in a manner that does not encourage
10
arbitrary and discriminatory enforcement.” Id. at 1138(internal quotation marks
omitted). The Concurrence explained that vague laws “impermissibly hand off the
legislature’s responsibility for defining criminal behavior to unelected prosecutors
and judges…” Id. at 1139(internal quotation marks omitted). If no clear line
delineates between legal and illegal conduct, the Government cannot convict based
on such conduct. Smith v. Goguen, 415 U.S. 566, 574 (1974).
The panel noted that pyramid scheme definition is “abstruse.” Maike, 142
F.4th at 376. Because it is vague, it is unconstitutional under Percoco. Moreover, the
instructions did not draw reasonably clear lines between what is forbidden and what
is not, so reversal is required. Gold, 177 F.3d at 475. Since Gold, FTC guidance on
what makes a pyramid scheme illegal has often changed. (Business Guidance
Concerning Multi-Level Marketing, April 2024; FTC Staff Offers Business
Guidance Concerning Multi-Level Marketing, January 4, 2018; The Bottom Line
about Multi-Level Marketing, October 2009; Staff Advisory Opinion – Pyramid
Scheme Analysis, January 14, 2004).
The second sentence in the pyramid scheme instruction was an effort to fulfill
Gold’s suggestion that “[i]n subsequent cases involving alleged pyramid schemes,
prudent district courts might supplement [the definition] to reflect the difference
between legitimate [MLMs] and illegal pyramids….” Gold at 483. The Court then
cited state laws that only prohibit schemes that compensate participants primarily
11
for recruitment. This inferred a more tolerant standard than the definition used here,
which rendered any compensation for recruitment illegal. But the district court took
the opposite approach and made the definition even more nebulous. What a
company’s structure suggests cannot support a finding of criminal liability.
“Structure suggests” does not tell a jury what it needs to find; instead, it instructs the
jury to infer guilt because of a company’s pyramidal structure. Ordinary people
would interpret structure to mean shape. Legitimate MLMs have “structures” that
“contain some elements of a pyramid scheme.” Gold at 480; see Whole Living, Inc.
v. Tolman, 344 F. Supp. 2d 739, 745 (D. Utah 2004). The Government’s expert
agreed “[h]aving a pyramid shape in and of itself is not indicative of a pyramid
scheme.” (R.487,#3901.) The full Court should evaluate this instruction to prevent
overreach in charging fraud schemes.
C. The instructions contained a legally erroneous theory.
The Emperor program, as a matter of law, cannot be a pyramid scheme.
Because the Government submitted an erroneous legal theory to the jury, the Court
should agree to a rehearing. See Griffin, 502 U.S. at 59. When “jurors have been left
the option of relying upon a legally inadequate theory, there is no reason to think that
their own intelligence and expertise will save them from that error,” so the Court
should reverse the conviction. Id. at 59; Maike, 142 F.4th at 379. The Concurrence
12
also acknowledges that a MLM with a capped number of participants likely cannot
be a pyramid scheme as a matter of law. Id. at 389.
Despite these acknowledgements, the Concurrence focused on the
Government’s tangential contention that I2G as a whole was a pyramid scheme. But
the issue at trial was whether the Emperor program was a pyramid scheme.
The jury instructions limited the relevant scheme to the Emperor program.
(R.554,#5263-68.) That is how the Government defined the conspiracy in its
proposed jury instructions two weeks before trial. (R.420.) The Government claimed
the Emperor program was a pyramid scheme. (See id.;R.405,#3087;R.692,#9990.)
All the overt acts dealt with Emperor purchases. (R.554,#5263-64.) The defense at
trial and Defendants’ closing arguments focused on the claim that the Emperor
program was a pyramid scheme. (R. 671,#7618;R.476,#3631.)
The fact that the instruction permitted the jury to find that the Emperor
program was a pyramid scheme (in addition to the other legal errors set forth above)
was devastating to Hosseinipour. A pyramid scheme is inherently fraudulent because
it will inevitably fail because of saturation; it can only survive so long as recruiting
new members continues and eventually there will be no one left to recruit. The
Emperor program was not doomed to fail because of saturation concerns. Rather, the
program was capped at 5,000, and participants were entitled to earn a share of profits
from the online casino (along with revenue from other products). The 5,000 cap
13
ensured that the casino profits would not continue to be diluted. The success of the
Emperor program was dependent on the success of casino; no one was deceived into
believing she could continue to profit from recruiting. Everyone knew the Emperor
sales will end at 5,000. Because the jury was permitted to convict on an errant legal
theory, the full Court should consider the matter.
II. The panel failed to apply Glossip to the Napue argument.
After oral argument, the Supreme Court decided Glossip, which addressed the
proper standard to apply to a Napue argument. “To establish a Napue violation, a
defendant must show that the prosecution knowingly solicited or allowed false
testimony to go uncorrected.” Glossip, 145 S. Ct. at 614.
If the defendant makes that showing, a new trial is warranted so long as
the false testimony may have had an effect on the outcome of the
trial,—that is, if it in any reasonable likelihood [could] have
affected the judgment of the jury….In effect, this materiality standard
requires the beneficiary of [the] constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute to the
verdict obtained.
Id. at 626-27 (internal quotation marks and citations omitted; brackets in original).
The ability to cross examine does not cure a Napue violation. “The Due Process
Clause imposes ‘the responsibility and duty to correct’ false testimony on [the
prosecution] not on defense counsel.” Glossip, 145 S. Ct. at 630 (quoting Napue v.
Illinois, 360 U.S. 264, 269-70 (1959)). The panel failed to apply this standard.
14
Hosseinipour showed that the Government knowingly submitted and failed to
correct false evidence. Keep, the Government’s pyramid scheme expert, Agent
Sauber, and Jerry Reynolds all testified falsely. Reynolds provided the Government
with financial information early in its investigation. Years later, prior to trial, the
Government subpoenaed 101i and specified the information it wanted.
(R.498,#4217.) The Government sent “specific” subpoenas for “specific
documents.” (R.681,#8324-25.) The Government met with Reynolds on June 22,
- (Id.) The next day, Reynolds created 101i. (101i properties showing creation
date of June 23, 2022.) By sending a “specific” subpoena for a “specific document,”
the Government was able to have Reynolds exclude earned commissions from 101i.
(R.721-2,#11428-30.) The omission of this data significantly skewed the
spreadsheets presented to the jury.
The purpose of 101i was to show the IBOs who earned more than they paid
to I2G and the IBOs who paid more to I2G than they earned. In other words, 101i
showed the participants with a net gain and the participants with a net loss. 101i
indicated that 96% of the IBOS lost money, and this statistic was heavily relied on
by the Government at trial.
After trial, Reynolds signed an affidavit that described the Emperor data from
his system that was omitted from 101i. (R.721-2,#11430; Ex.3 to R.721-2.) 101i
listed 23,770 purchasers and indicated that 21,781 of those purchasers never
15
received a payment from I2G. According to 101i, approximately 2,000 IBOs,
including 579 Emperors, earned commissions.
In his affidavit, Reynolds explained he had the ability to run a report showing
all commissions earned as tracked by his system, and he specifically ran a report for
commission earned by all Emperors. (R.721-2,#11430.) That report showed that
more than 3,300 Emperors received money from I2G. (Ex.3 to R.721-2.) Because of
the Government’s directive, 101i failed to list approximately 2,700 Emperors who
earned money from I2G. For Emperor and non-Emperors, over $25 million in earned
commissions were excluded from 101i despite being tracked by Reynolds’ system.
(Compare US-101i with US-7240.) 101i grossly altered the real financial results of
I2G IBOs.
Reynolds also testified falsely about 101i. In its briefing, the Government
argued that Reynolds informed the jury of 101i’s deficiencies, which were a result
of deficiencies in Reynolds’ system. (Gov.Br.56.) The panel repeated this. United
States v. Maike, No. 22-6114, 2025 WL 1770555, at *6 (6th Cir. June 26, 2025).
But as Reynolds’ affidavit makes clear, Reynolds’ system tracked
substantially more commissions than what was included in 101i, and the jury never
heard this information. (R.721-2,#11430;Ex.3 to R.721-2.) Despite this, Reynolds
falsely testified that it included “data on all the participants’ gains and loss” “that
was tracked by [his] system.” (R.498,#4163-64.) Reynolds and Keep falsely testify
16
that 101i reflected to the difference between IBO payments in and payments out.
(R.498;#4164;R.487,#3876). As the Government phrased it, “so that shows for every
participant in the system how much they gained or lost?,” and Keep answered
“[c]orrect.” (Id.). Keep testified that he sorted the 101i by “gains and losses” and
determined that 96% of the “20-plus thousand accounts” lost money. (R.487,#3877.)
The 96% loss figure was critical to the Government’s case. The panel’s
opinion cited the loss rate twice. The Government relied on it in its opening and
hammered it in closing. (R.485,#3735; R.671,#7691-92.) The district court referred
to the data as “gold.” (R.681,#8324-25.) 101i, the loss rate, and other false evidence
were referenced extensively. (R.485,#3735;R.487,#3876-78,3883,3975,3977-
78;R.498,#4163-73;R.671,#7691-92;R.681,#8324-25;R.688,#9049;R.689,#9323;
R.690,#9488-89;R.699,#10322;R.701,#10920.)
Based on the Napue error, under Glossip, the Government must “establish
harmlessness beyond a reasonable doubt.” The panel failed to apply this standard
and rejected the argument for two reasons. First, the panel noted that Reynolds
testified that 101i may not have included every payment that I2G made to
participants. Reynolds’ actual testimony was that 101i showed “participants’ gain
and loss data that was tracked by [his] system.” (R.498,#4164). This was false; 101i
excluded over $25 million of commissions tracked by his system. (Compare US101i Column P with US-7240 Column J).
17
Second, the panel held that no due-process violation occurred because
“defendants had ample opportunity to cross-examine both Keep and Reynolds about
anything that the spreadsheets contained.” Maike, 2025 WL 1770555, at *6. But a
Napue violation cannot be cured by cross-examination. Glossip, 145 S. Ct. at
631n.10. Like in Glossip, the defense had no idea Reynolds excluded information
from his system. Moreover, the defense asked Reynolds about whether he had
presented all the significant information he had about I2G, and he said to his
knowledge he did. (R.498,#4177.) The prosecution had the duty to correct the false
evidence, not the defense. Id. at 630.
The panel failed to apply the materiality analysis set forth in Glossip.
Materiality “always requires courts to assess whether []the error complained of[]
could have contributed to the verdict….Here, the prosecutor’s failure to
correct…false testimony is the relevant error, so the Court asks whether a correction
could have made a material difference.” Id at 631. The prosecution’s correction of
the repeated reliance on Reynolds’ false data and related testimony would have made
a material difference.
18
Respectfully submitted,
/s/ R. Kenyon Meyer (w/ permission)
R. Kenyon Meyer
DINSMORE & SHOHL LLP
101 South Fifth Street, Suite 2500
Louisville, KY 40202
(502) 540-2300
kenyon.meyer@dinsmore.com
AND
/s/ Philip E. Cecil
Philip E. Cecil
FULTZ MADDOX DICKENS PLC
101 S. Fifth Street, 27th Floor
Louisville, Kentucky 40202
(502) 588-2000
pcecil@fmdlegal.com
Counsel for Petitioner Faraday
Hosseinipour
19
CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief complies with Fed. R. App. P. 40(d)(3)(A)and
Fed. R. App. 32(a)(5)&(6) because the countable portion thereof contains 3,866
words and was typed in 14-point Times New Roman font.
Respectfully submitted,
/s/ Philip E. Cecil
Philip E. Cecil
Counsel for Faraday Hosseinipour
CERTIFICATE OF SERVICE
I certify that on August 11, 2025, a copy of the foregoing brief was served
upon opposing counsel by electronic filing.
Respectfully submitted,
/s/ Philip E. Cecil
Philip E. Cecil
Counsel for Faraday Hosseinipour