UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4715


UNITED STATES OF AMERICA,

                Plaintiff – Appellant,

           v.

VICTORIA L. SPROUSE,

                Defendant – Appellee.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00211-MR-2)


Argued:   October 25, 2012                 Decided:   April 8, 2013


Before DUNCAN and DIAZ, Circuit Judges, and Catherine C. EAGLES,
United States District Judge for the Middle District of North
Carolina, sitting by designation.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellant.        William Robert
Terpening, NEXSEN PRUET, PLLC, Charlotte, North Carolina, for
Appellee. ON BRIEF: David A. Brown, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellant.     Peter C.
Anderson, ANDERSON TERPENING PLLC, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Victoria Sprouse was convicted of various offenses arising

from a mortgage fraud scheme.          Prior to sentencing, the district

court ordered a new trial as to all offenses in light of the

Supreme Court’s decision in Skilling v. United States, 130 S.

Ct.    2896   (2010),   concluding     that       its   honest   services   fraud

instructions to the jury constituted plain error.                      On appeal,

the government contends that the district court misapplied the

burden of proof with respect to the “substantial rights” prong

of the plain error analysis.          We agree with the government that

it was Sprouse’s burden to show that the instructional error

affected her substantial rights, which in this context required

Sprouse to show that the jury actually convicted her based upon

the error.       Because Sprouse failed to satisfy that burden, we

reverse the      district   court’s    order      granting   a   new   trial   and

remand for sentencing.



                                       I.

                                       A.

       Between 2000 and 2004, Victoria Sprouse provided services

as a closing attorney and notary public for approximately 210

real    estate    transactions    in        and    around    Charlotte,     North




                                       2
Carolina. 1    The transactions were in fact part of a conspiracy to

defraud    mortgage    lenders,          from    which       Sprouse       received       nearly

$235,000 in attorney fees.                 The majority of these fraudulent

transactions were “house-flipping” schemes.

     In a flip transaction, a property is sold by one party to

another and, on that same day or very shortly thereafter, re-

sold to a third party at a higher price.                        The first transaction

is a cash sale, and the inflated re-sale is made possible by a

loan from an unsuspecting lender.                   The loan is premised on an

inflated      real-estate       appraisal,         falsified           loan        application

documents, and fake title opinions.                     Participants of the scheme

benefit     either     through       the        collection       of        fees     for    work

fraudulently       performed,       or    through        a    cut     of    the      “profits”

generated from the re-sale of the property at an inflated value.

     To     facilitate       the    financing       and        closing        of    the    flip

transactions,        Sprouse       prepared       and        submitted          false     title

opinions,     filed    and     recorded         false    deeds      of     trust,       delayed

recording     of    documents       to     hide     the       source       of      subordinate

financing, falsely notarized and dated documents, and otherwise

falsely verified the accuracy of closing documents.                                An example



     1
       We summarize the evidence in the light most favorable to
the government, the prevailing party at trial.        See United
States v. Jefferson, 

, 341 n.14 (4th Cir. 2012).



                                            3
of   a      typical      house-flipping            scheme    will       help     illustrate

Sprouse’s role in the conspiracy.

      In 2001, Karin Jo Sholtis purchased several properties and

immediately resold them to Stephen Hawfield.                            Sprouse acted as

the closing attorney on both halves of the flip transactions.

When Sholtis visited Sprouse’s office, Sprouse had her sign a

stack of documents for each transaction within minutes of one

another.       Sprouse offered no explanation for what Sholtis was

signing, and told Sholtis not to date anything because Sprouse

“would fill everything in” herself.                      J.A. 284, 325-26.           Although

Sholtis brought no money with her, Sprouse signed settlement

statements certifying that Sholtis brought a total of $504,000

in   cash    to    the   closing.         At       one   point    during     the     closing,

Sprouse asked Hawfield for payment and read a series of amounts

to him while Hawfield wrote checks for amounts that matched the

cash purportedly brought by Sholtis.

      Later       that   year,    Sprouse           again    acted      as     the    closing

attorney      as    Sholtis      purchased          a    number    of    properties      and

immediately        re-sold    them   to    Hawfield.             Although      the    closing

documents were purportedly signed by Sholtis, Hawfield actually

forged her signature on each of them, and Sprouse notarized each

of the deeds, attesting that Sholtis had personally appeared

before her to sign.            Sprouse also signed settlement statements

certifying that Sholtis brought approximately $900,000 in cash

                                               4
to   the    closing,    when     Sprouse      knew    that     Hawfield   actually

provided the money.

     The flip scheme we describe is representative of the vast

majority of the 210 transactions that the government alleged to

be fraudulent.       The remaining transactions were either primary

residence    schemes     or    decorator       distribution      schemes.      The

primary residence scheme was similar to a traditional house-

flipping scheme, except that the buyer on the second half of the

transaction would falsely represent on the loan application that

he would be using the property as his primary residence.                     As a

result, the buyer would receive more favorable financing terms.

The decorator distribution scheme, on the other hand, involved

the co-conspirators obtaining a loan with favorable terms by

falsely representing that “cash from buyer” was provided as down

payment.     The cash purportedly paid by the buyer was actually

provided     after     closing    and    drawn       from    so-called    interior

decorator     disbursements       from        the    lender.       The    interior

decorations were never performed, and the scheme allowed the

buyers to obtain loans with beneficial terms without providing

any down payment.        Sprouse’s involvement was the same in these

schemes as in the Sholtis/Hawfield transaction, as she would

falsify documents and fail to perform her duties as an attorney

and notary public on closing documents.

                                         B.

                                         5
       A federal grand jury indicted Sprouse on three counts of

mail       fraud,   nine    counts   of       bank   fraud,   three    counts    of

conspiracy to commit fraud, 2 two counts of conspiracy to commit

money laundering, two counts of promotional money laundering,

one count of money laundering, four counts of perjury, and three

counts of obstruction of justice. 3              Each count of the indictment

that charged a scheme or artifice to defraud (fifteen in all)

included language accusing Sprouse of involvement with a scheme

“to defraud financial institutions and others of money and their

intangible right to honest services.”                J.A. 32-80.      In addition,

because      the    money   laundering    offenses     relied   upon    the   fraud

charges as predicate crimes, they too implicitly incorporated

the honest services language.

       At trial, the government called Richard Poe.                   Poe, who at

the time of trial was an attorney, 4 was qualified as an expert on



       2
       Sprouse was charged with two counts of conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371. The
indictment charged that the objects of the § 371 conspiracies
included mail, wire, and bank fraud, as well as making false
statements to banks.    In a separate count, Sprouse was also
charged with conspiracy to defraud financial institutions and
others through mail, wire, and bank fraud, in violation of 18
U.S.C. § 1349.
       3
       The district court severed the perjury and obstruction of
justice charges for the purposes of trial.        The government
ultimately dismissed those charges without prejudice.
       4
       As the district court noted in its attachment to its order
granting Sprouse’s motion for new trial, Poe was disbarred in
(Continued)
                                          6
an attorney’s role and ethical duties in residential real estate

transactions.       He   explained   the   residential     loan   application

process and the closing attorney’s responsibilities related to

the transaction.         Specifically, Poe testified that as closing

attorney,   Sprouse’s     duties   included   preparing     the   preliminary

title    opinion,   creating   the   HUD-1    settlement    statement,    and

reviewing    the    parties’   contract      for   accuracy.       Poe   also

testified that the closing attorney is presumed to represent

both the buyer and the lender, and serves as the “eyes and ears

of the lender,” notifying the lender if something occurs “at the

closing transaction that the lender needs to know about.”                J.A.

147, 175.

         After hearing testimony from twenty-seven other witnesses

over eight days, and considering 597 exhibits, the jury found

Sprouse guilty of all counts except one mail fraud offense. 5              In




June of 2010. There has been no suggestion, however, by either
the district court or Sprouse, that Poe’s testimony was not
truthful or accurate.
     5
       Sprouse testified in her own defense.    She denied being
part of a conspiracy to defraud even while she admitted that a
number of the closing documents she had either signed or
notarized were false. According to Sprouse, she had been sloppy
and inattentive in her law practice, but she denied that she
intended to defraud anyone.    Sprouse also called witnesses who
described how common it was to make a mistake in the processing
of closing documents. Finally, several other witnesses attested
to Sprouse’s honesty and integrity.



                                      7
addition, the jury found, in special verdicts, that the objects

of the §§ 371 and 1349 conspiracies included mail fraud, wire

fraud, and bank fraud, and that the objects of the two § 371

conspiracies also included making false statements to banks.

                                             C.

        Prior to sentencing, the district court ordered the parties

to    file   briefs       addressing    the       impact      of   the   Supreme    Court’s

decision in Skilling v. United States, 

(2010),

“on any issue remaining in [the] case.”                              J.A. 2113-15.         In

Skilling,       a    case     decided      three      months         after    Sprouse     was

convicted, a former Enron executive was charged with conspiracy

to commit securities and wire 

.            The

indictment      alleged       that   the    object       of    the    conspiracy    was    to

deprive company shareholders of their right to Skilling’s honest

services.       

Skilling argued that

the honest services fraud statute was unconstitutionally vague,

and therefore violated his due process rights.                           

    Court        agreed     and        confined        the       reach     of    § 1346

honest-services fraud to bribery and kickback schemes.                              

      the   district     court,      the     government        conceded   that

because no bribery or kickbacks had been alleged in Sprouse’s

case, the court should not have instructed the jury that it

could convict Sprouse for fraud on an honest-services theory.

                                              8
But because Sprouse did not object to the instructions at trial,

the government argued it was her burden to show a plain error

warranting      relief.         Applying      the      standard,      the     government

contended that Sprouse could not show that the jury in fact

convicted her based on the now-improper honest-services theory

because the government had presented ample evidence at trial to

support the convictions on a valid theory of pecuniary fraud.

Alternatively, the government argued that the motion for a new

trial should, at least, be denied as to the jury’s verdicts on

the § 371      conspiracy       counts       because    the    jury   found    that   the

objects   of    each       of    the   conspiracies       included      making    false

statements to a bank, a separate offense from the mail and wire

fraud   objects      for    which      the    court     gave    the   honest-services

instruction.

       Sprouse, on the other hand, disputed that the plain error

standard applied, insisting that the error required the court to

vacate her convictions and grant a new trial because it was

“impossible to know that the verdict was not based solely on the

invalid honest services” theory.                  J.A. 2122-27.

       Reviewing the instructions for plain error, the district

court first determined that the honest services theory of the

case    had    “so     permeated        the       proceedings . . . that         it   is

impossible to tell whether the jury may well have convicted the

Defendant based entirely on behavior that does not violate the

                                              9
statute.”       J.A. 2412.          Second, the district court rejected the

government’s          contention          that        the     special       verdict       form

demonstrated         that    Sprouse’s         two    § 371       conspiracy    convictions

rested   on     a    separate,      valid       theory,      and    therefore    should     be

affirmed.

     Highlighting           statements          from        the    government’s       opening

statement and closing arguments, the court concluded that the

overarching theme of the case was honest services, rather than

pecuniary, fraud, and that nearly all of the evidence presented

by the government was probative of the honest-services theory

only.      In       the   court’s       view,    the     honest-services        error     also

affected      the     outcome      of    the    trial       due    to   a   “spillover”     of

prejudicial          evidence      that        tainted       the    jury’s      verdict     on

otherwise sustainable counts.                    As a result, the district court

granted Sprouse’s motion for a new trial.

     This appeal followed.



                                                II.

     The      issue       before    us    is    whether       the    district    court,     in

granting Sprouse’s motion for a new trial, properly concluded

that Sprouse had shown plain error in the jury instructions.

The government’s principal argument is that the district court

misapplied the plain error standard by requiring Sprouse to show

only that it was impossible to tell whether the jury convicted

                                                10
her based upon admittedly defective instructions, rather than

that    Sprouse’s        convictions    actually      resulted     from     the

instructional error.

       According to the government, if the district court could

not    tell    whether    the   jury   convicted     Sprouse   based   on    an

honest-services theory, then plain error review dictates that

the verdicts be affirmed because the government presented ample

evidence      of   a   money-or-property    theory    of   fraud   that     was

untainted by the Skilling error and upon which the jury could

have relied to convict.          Relatedly, the government argues that

the district court should have been confident that the jury’s

verdicts rested on a proper theory of conviction because the

special verdicts on the § 371 conspiracy counts necessarily show

that the jury convicted Sprouse based on what the government

describes as a conventional “money-or-property theory of bank

fraud, wire fraud, and mail fraud.”                Appellant’s Br. at 42.

Alternatively, the government argues that, at a minimum, the

district court erred in vacating Sprouse’s convictions on the

§ 371 conspiracy counts because the jury specifically found an

object of the conspiracy--the making of a false statement under

§ 1014--that was untainted by the honest-services evidence.

       We agree with the government on its principal argument,

which is fully dispositive of this appeal.              Accordingly, we do

not discuss further the government’s alternative contentions.

                                       11
                                       A.

     Federal Rule of Criminal Procedure 33 provides that a trial

court may, on a defendant’s motion, grant a new trial “if the

interest of justice so requires.”               We have observed that “a

court   should     exercise     its   discretion    to     grant   a   new    trial

sparingly,   and    that   it    should   do   so   only    when   the   evidence

weighs heavily against the verdict.”                United States v. Perry,

, 320 (4th Cir. 2003) (internal quotations omitted).

We review a district court’s decision to grant a motion for new

trial for abuse of discretion.              United States v. Robinson, 

, 948 (4th Cir. 2010).            Furthermore, “[a] district court

abuses its discretion when it acts arbitrarily or irrationally,

fails to consider recognized factors constraining its exercise

of discretion, relies on erroneous factual or legal premises, or

commits an error of law.”             United States v. Wilson, 

, 649 (4th Cir. 2010).

     In this case, Sprouse’s motion for a new trial was premised

on an instructional error to which she did not object.                       When a

defendant fails to object to a jury instruction, even if there

were no legal grounds for challenging the instruction at the

time it was given, a district court should deny a motion for a

new trial in the absence of plain error.                    Fed. R. Crim. P.

52(b); see also United States v. Pelisamen, 

, 404

(9th Cir. 2011) (citing Johnson v. United States, 

,

                                       12
464-68 (1997)).           To prevail, a defendant must demonstrate that

(1) there was an error, (2) the error was clear or obvious,

rather       than   subject    to    reasonable      dispute,        (3)    the   error

affected the defendant’s “substantial rights,” and (4) the error

“seriously affects the fairness, integrity, or public reputation

of the judicial proceedings.”             United States v. Marcus, 130 S.

Ct. 2159, 2164 (2010); see also United States v. Olano, 

, 732-35 (1993).

       The government concedes, and we agree, that Sprouse met her

burden on the first two prongs of the test.                     Therefore, we turn

our    attention     to    whether    Sprouse      has    shown      that   the    error

affected her substantial rights.                Our analysis is governed by

United States v. Hastings, 

(4th Cir. 1998), where

we clarified the showing that a defendant must make to satisfy

the     substantial        rights    prong      in       the   context       of     jury

instructions.

       The defendant in Hastings was convicted of multiple crimes,

including “using or carrying a firearm during and in relation to

a     drug    trafficking     offense,”       in     violation        of    18    U.S.C.

§ 924(c)(1).        

subsequent Supreme Court decision

rendered the jury instructions regarding the meaning of the term

“use,” as used in that count, erroneous.                       

conviction for plain error, we held that a defendant

is entitled to reversal “only upon a showing that ‘the error

                                         13
does    affect     substantial           rights,’      that       is,    that     the        error

actually affected the outcome of the proceedings.”                                

).        We    reiterated       this       high

standard       throughout       the      opinion,         stating       that    the         burden

“requires [a defendant] to show that the jury actually convicted

him    based     upon    [the    erroneous          instruction].”              

     added).        “Importantly,          it     is    not    enough       for     [the

defendant] to establish that it is impossible to tell whether

the     verdict    returned         by    the       jury     rested       solely        on     the

misinstruction, for such a showing would establish only that the

error was not harmless.”                 

to the

defendant in Hastings, we held that he could not establish that

the instruction at issue had affected his substantial rights

because    “in    making      the     factual       finding       necessary       to    convict

under    the    erroneous       instruction,          the    jury       necessarily          found

facts establishing [a conviction under the valid instruction].”

attempts to complicate Hastings’s straightforward

holding,    arguing      that       we   intended      to     create      a    more     lenient

“reasonable       probability”           standard.               In     support        of     this

contention, Sprouse notes that one of the cases cited by the

Hastings court uses language to that effect.                              See 

United States v. McKinney, 

, 476 (7th Cir.

1992)).        Sprouse asks us to “modify” the Hastings holding by

                                               14
“inserting     ‘probably’           or    ‘likely’         in    place        of    ‘actually.’”

Appellee’s Br. 16.             We decline that invitation, however, as it

would rewrite our clear and unmistakable holding in Hastings.

                                               B.

     In    finding      that      the     instructional           error       was      plain,    the

district     court      concluded         that       the    error       “so       permeated       the

proceedings”      that       it     was    impossible           to     tell       whether,       with

respect to any of the counts for which the court had given an

honest-services         instruction,           the     jury      had     convicted           Sprouse

based upon a valid theory.                 J.A. 2412.            The district court also

believed that the “errors regarding honest service fraud also

could have affected the outcome of the trial by allowing for

‘spillover’       of         prejudicial         evidence             into        an        otherwise

sustainable count.”           J.A. 2425.

     We conclude that the district court’s ruling misapplied our

holding in Hastings.                We made clear there that a conviction

should not be reversed for plain error simply because it is

“impossible       to     tell”        whether         it        rested       on        an    invalid

instruction.      See 

.                         Moreover, although

Skilling held that an error occurs when a jury is instructed on

alternative    objects         of     a    conspiracy           and    returns          a    general

verdict    that        may     rest       on     a    legally          invalid          theory     of

honest-services fraud, that case also teaches that the error

does not necessarily require reversal in every case.                                        Skilling,

                                               

.              Indeed, when Skilling itself was remanded

to   the    Fifth    Circuit,          that    court       affirmed    the    conspiracy

conviction     despite       the        honest-services        instructional       error

because it found the error to be harmless.                      See United States v.

Skilling,     

,        483-84      (5th     Cir.    2011)    (applying

harmless    error    review,       as    the    defendant      had    objected    to   the

honest services instructions at trial), cert. denied, 

(2012).

     The    district     court         here    concluded      that    because    it    was

“impossible to tell” the ground upon which the jury rested its

verdicts, Sprouse had satisfied her burden under plain error

review.     Sprouse, however, was required to demonstrate that her

convictions     actually         rested       on     the    invalid    honest-services

theory.      The    district       court       instead     effectively       flipped   the

burden of proof by requiring the government to show that the

error was not harmless. 6              This mistake was an error of law that

we are bound to correct.

     The     district        court        also        concluded       that     Sprouse’s

substantial    rights       as    to    all     of   the    honest    services-related

convictions were necessarily affected by the instructional error

     6
       We acknowledge that the district court’s order in certain
places purports to apply plain error review. But as we explain
infra, the district court’s analysis is flawed nonetheless in
that it fails to give proper weight to the overwhelming evidence
supporting the government’s theory of pecuniary fraud.



                                              16
because      “all     of    the      evidence       presented       at    [Sprouse’s]        trial

related to honest services fraud.”                         J.A. 2415.       We do not agree

with the district court’s view of the evidence.

       It     bears      remembering          that       the    government        alleged      two

theories in support of the fraud charges: conventional pecuniary

fraud and fraud based on a deprivation of honest services.                                     The

government        also     charged         Sprouse      with    conspiring       to     knowingly

make false statement to lenders.                        Many of the statements made by

the    government          at    trial      that     the    district      court       quotes   as

examples of an overarching theme of honest-services fraud are

equally relevant to the charges of pecuniary fraud and making

false       statements          to    lenders.           See,     e.g.,    J.A.       2417    (the

government’s opening statement describing Sprouse’s dishonesty),

2423    (the      government’s            closing      arguments     describing         Sprouse’s

forging      of    documents         and    falsely        notarizing      warranty       deeds).

Similarly,        while     it       is    certainly       true    that    the    evidence      of

Sprouse’s         misrepresentations              and      violations      of     her     ethical

duties as an attorney and a notary public during real estate

closings was relevant to the government’s honest-services theory

of    fraud,      the      evidence         was    equally        probative      of     Sprouse’s

knowledge and intent to defraud with respect to the pecuniary

fraud theory, as well as Sprouse’s knowledge as to the counts

alleging a conspiracy to make false statements to lenders.



                                                  17
      In fact, the absence of a mens rea was Sprouse’s principal

defense at trial.           In her opening statement, during her trial

testimony,    and    again    in    her     summation       to     the   jury,   Sprouse

admitted     that     she    had     been        sloppy    and      inattentive         when

processing    closing       documents,       which    led     to    her    being      taken

advantage of by others.             Sprouse insisted nonetheless that she

lacked the specific intent to commit the charged offenses.                               For

that reason, evidence describing Sprouse’s failure to discharge

her duties as an attorney and notary public in residential real

estate     transactions,          while      admittedly          probative       of      the

government’s        now-invalid      honest-services             theory,     was        also

relevant to show Sprouse’s intent and knowledge with respect to

those theories upon which a jury could properly convict.

      Similarly,      the    district       court’s       characterization         of    the

pecuniary fraud theory as an “afterthought” we think ignores the

interrelation of the two theories.                    In our view, the conduct

undergirding each theory of fraud was largely the same, and the

facts supporting the banks’ losses and Sprouse’s pecuniary gain

were uncontroverted.          As a result, the government’s evidentiary

presentation at trial rightfully focused on whether Sprouse had

the   requisite        intent       when      she     engaged        in    the        lies,

misrepresentations,         and    forgeries       underlying       both   theories       of

fraud.



                                            18
      As to that question, any reasonable jury concluding that

Sprouse intended to defraud lenders of her honest services would

necessarily have found that she intended to defraud those same

lenders of money.             By way of example, in the Sholtis/Hawfield

transactions--which are representative of the other counts of

the     superseding      indictment          alleging       fraud--had              the    jury

convicted     Sprouse        of     honest    services      fraud,        it    would      have

necessarily      found       that    Sprouse,     with   the     intent        to    defraud,

falsely represented that Sholtis brought money to the closings,

and notarized Sholtis’s forged signatures, thereby denying the

lenders of her honest services while purporting to act in their

interest.       Similarly, for the jury to have convicted Sprouse of

pecuniary    fraud      as    to    those    same    transactions,         it       must   have

found    that     Sprouse,          with    the   intent       to     defraud,        falsely

represented      that    Sholtis       brought      money   to      the    closings,        and

notarized    Sholtis’s         forged      signatures,      thereby        depriving        the

lenders of a pecuniary interest (i.e., the loan proceeds and

attorney fees).          Because the evidence showing that the banks

suffered a pecuniary loss as a result of the Sholtis/Hawfield

transactions      was        both     overwhelming       and        uncontroverted,          no

reasonable jury could have convicted Sprouse of honest services

fraud, but acquitted her of pecuniary fraud on these facts.                                  We

find that the same holds true with respect to the other counts

alleging fraud.

                                             19
     In sum, because Sprouse failed to object at trial to the

Skilling instructional error, it was her burden to show that her

convictions     actually   rested   on     the   invalid   honest-services

instructions.     Sprouse failed to meet that burden here, and the

district court abused its discretion in concluding otherwise.



                                    III.

       For these reasons, we reverse the order of the district

court granting Sprouse a new trial, reinstate her convictions in

toto, and remand the case for sentencing.

                                                    REVERSED AND REMANDED




                                     20