Wineman

MEMORANDUM *

Michael Wineman appeals his conviction on five counts of mail fraud and one count of telemarketing fraud arising from his employment at WRI Holdings (‘WRIH”). Wineman challenges (1) the sufficiency of the evidence with respect to each of the verdicts; (2) the district court’s instructions to the jury concerning the element of intent; (8) the admissibility of testimony by three victims with respect to whom Wineman was not charged; (4) the district court’s denial of Wineman’s request for a two-level minor role adjustment; (5) the district court’s decision to impose a two-level upward departure for Wineman’s violation of the Senior Citizens Against Marketing Scams (“SCAMS”) Act; and (6) the district court’s attribution to appellant, in calculating his base offense level, of more than $800,000 in losses, and the sufficiency of the evidence used to determine the amount of restitution owed. The facts and prior proceedings are known to the parties, and are restated herein only as necessary.

I

Wineman contends first that his conviction on Count One should be reversed because he spoke with the victim, Nick Pino, Jr., only after Mr. Pino had invested and, thus, at the time…