United States v. Jason Van Eman

USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 1 of 31 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-12523 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JASON VAN EMAN, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:19-cr-20447-AHS-2 ____________________ Before ROSENBAUM, NEWSOM, and WILSON, Circuit Judges. PER CURIAM: Everybody loves a captivating movie. But would-be film producers often need help financing their productions. That’s where Defendant Jason Van Eman and his coconspirators came in. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 2 of 31 2 Opinion of the Court 22-12523 They promised producers that they would match significant mon- etary deposits, so the producers could use the combined funds to finance their projects. After the producers and others deposited funds with Van Eman, though, he transferred the monies to his own bank account. With a little help from a former Wells Fargo Bank employee, Van Eman convinced the producers that he had matched their deposits. When some producers challenged him, Van Eman used deposits from other producers to pay them back. But all Ponzi schemes eventually cave in on themselves. And that’s what happened here. Upon the scheme’s demise, a grand jury charged Jason Van Eman and his coconspirators for their conduct. Van Eman pro- ceeded to trial. After a 22-day trial, the jury found Van Eman guilty of one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349; twenty-three counts of wire fraud, in violation of 18 U.S.C. § 1343; one count of conspiracy to commit money launder- ing, in violation of 18 U.S.C. § 1956(h); and six counts of money laundering, in violation of 18 U.S.C. § 1957. Van Eman argues on appeal that the district court erred by excluding evidence in violation of his constitutional rights; instruct- ing the jury on deliberate ignorance; allowing the prosecutor to make certain statements during closing argument; applying an ag- gravated-role enhancement and an obstruction-of-justice enhance- ment to his sentence; and improperly calculating the loss amount USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 3 of 31 22-12523 Opinion of the Court 3 at sentencing.1 After careful consideration, we affirm the judgment of the district court. I. BACKGROUND2 In July 2019, a grand jury indicted Van Eman and two co- conspirators on one count of conspiracy to commit wire fraud, twenty-three counts of wire fraud, one count of conspiracy to com- mit money laundering, and six counts of money laundering. The indictment alleged that Van Eman used his entertain- ment industry connections to find producers looking to finance movies, music festivals, and theater productions, and convinced them to sign Funding Agreements to fund those projects. Under the Agreements, after the producers wired significant deposits to specified bank accounts, Van Eman’s coconspirator, Benjamin McConley, would match the deposit. Then, the Agreements con- tinued, either Van Eman or McConley would use the combined 1 Van Eman raised four other arguments for the first time in his reply brief: (1) that venue was improper in the Southern District of Florida; (2) that the district court’s restitution error improperly attributed McConley’s fraud to Van Eman; (3) that the prosecutor violated Weaver v. Massachusetts, 582 U.S. 286 (2017); and (4) that the Government violated Brady v. Maryland, 373 U.S. 83 (1963). Because Van Eman failed to raise these issues in his opening brief, he has abandoned them. See United States v. Moran, 778 F.3d 942, 985 (11th Cir. 2015). 2 We take the facts, where applicable, from the evidence admitted at trial and view them in the light most favorable to the verdict. See, e.g., United States v. Mena, 863 F.2d 1522, 1529 (11th Cir. 1989). USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 4 of 31 4 Opinion of the Court 22-12523 sum as collateral for lines of credit to finance the producers’ pro- jects, which they would obtain within 120 days or else refund the deposit. The Funding Agreements assured the producers that they would have access to a secure account and that their investments would not be removed from the account until the bank issued the line of credit. But that’s not what happened. McConley never matched the producers’ contributions. Instead, he and Van Eman trans- ferred the producers’ funds into their own bank accounts. And nei- ther McConley nor Van Eman ever obtained any line of credit. All the while, the two repeatedly and falsely assured victims that they had applied for lines of credit on their behalf, and that financial in- stitutions had approved them. The pair concealed the fraud by working with Benjamin Ra- fael, a Wells Fargo Bank employee. Van Eman sent the producers fake bank letters, signed by Rafael, confirming that their invest- ments were in “secure” bank accounts and that lines of credit would issue soon. And even after Wells Fargo fired Rafael, McConley and Van Eman continued to tell investors that he worked for the bank. Over time, producers grew wise to the con and began to file civil lawsuits against McConley and Van Eman. Undeterred, the two used funds from new producers to resolve legal actions and make partial repayments. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 5 of 31 22-12523 Opinion of the Court 5 When the federal government charged the trio, McConley and Rafael both pled guilty, but Van Eman pled not guilty to all the charges against him and proceeded to trial. In February 2020, the district court set a trial date and or- dered both parties to file their lists of proposed witnesses and ex- hibits before the trial began. The Government submitted its lists ahead of trial, but Van Eman did not. Two years later, in March and April of 2022, the court held a 22-day trial involving testimony from victims, financial experts, Rafael, and Van Eman. At the beginning of the trial, the court in- structed the jury not to consider as evidence any statements that the lawyers made during opening statements or closing arguments. Before openings began and outside the jury’s hearing, the Government noted that it had not received Van Eman’s exhibit and witness lists. Van Eman’s counsel replied that he had not filed ei- ther because he had “no burden of proof on anything” and needed to “see how the [G]overnment’s case play[ed] out.” Before begin- ning, the court reminded the jury twice more not to consider as evidence any statement that the lawyers made during openings. On the second day of trial, the Government attempted to introduce evidence of the civil lawsuits that producers had filed against Van Eman. Van Eman objected, arguing that the evidence conflated the burden of proof between the civil cases and his crim- inal one. In response, the Government asserted that the lawsuits showed that Van Eman knew he was committing fraud. The court USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 6 of 31 6 Opinion of the Court 22-12523 allowed the lawsuits into evidence with a limiting instruction to the jury. Later that day, the Government called Anthony Buzbee, a lawyer from Texas who entered into a funding agreement with Van Eman to produce a movie for his son and daughter to star in— purportedly alongside actor Ryan Gosling. Buzbee wired Van Eman $1.5 million under the auspices that Van Eman would use the funds to obtain a line of credit to finance the film. That never happened. Instead, McConley wired Buzbee’s investment out of the account, and Van Eman refused several times to refund it. Buzbee sued the pair and their companies in October 2014. Returning to the criminal trial, the next day, the Govern- ment called Mark Trottier, a lawyer whose client, Adana, went into business with Van Eman in 2015. After Adana loaned Van Eman’s company, Weathervane, $28.6 million, Van Eman sent Trottier a Wells Fargo bank confirmation letter signed by Rafael—failing to tell Trottier that Wells Fargo had in fact fired Rafael. Van Eman later sent Trottier another letter, again signed by Rafael, promising that Adana would soon get its money back. But Adana never re- ceived the money, so it sued Van Eman and obtained a TRO freez- ing his bank accounts. Over Van Eman’s objection, the court ad- mitted the TRO into evidence with a limiting instruction that the standard of proof in a civil case is lower than in a criminal one. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 7 of 31 22-12523 Opinion of the Court 7 Several others, including producer Paul Martino, screen- writer Casey Twenter, Austrian film producers represented by law- yer Robert Cohen, producer Brad Tuckman, and filmmaker Joshua Minyard eventually sued Van Eman under similar circumstances. On day twelve of the trial, the Government called FBI Spe- cial Agent Leonard Feula. Feula testified that he had reviewed doc- uments from fifteen civil lawsuits filed against Van Eman and that one investor had obtained a TRO freezing Van Eman’s bank ac- count. During Feula’s testimony, Van Eman re-raised his objection to certain portions of the civil lawsuits coming in, arguing that the specific language of the TRO should be redacted. In response to Van Eman’s objection, the court again instructed the jury that the TRO was “based on a civil standard of proof” called “preponder- ance of the evidence[,]” which is a “much lower standard” than be- yond a reasonable doubt. During Van Eman’s case in chief, the Government objected to Van Eman’s calling of former IRS employee Andre Noisette to testify about Van Eman’s tax returns. Noisette planned to present summary charts about Van Eman’s finances and 72,000 pages of bank records. The Government argued that it had not received the summary charts or bank records and again reminded the court that Van Eman had never submitted an exhibit list. response, Van Eman asserted that he could not disclose the charts because he did not receive them until the second day of trial. He also contended that not admitting the charts and bank records would violate his Sixth Amendment rights. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 8 of 31 8 Opinion of the Court 22-12523 The court held that Van Eman’s failure to disclose the charts and bank records to the Government harmed its ability to prepare for the trial. So while the court allowed Noisette to testify, it pro- hibited him from discussing issues related to Van Eman’s taxes or using the summary charts and records. Eman moved for reconsid- eration, which the court denied. But the court did allow Van Eman to use the summary chart as a demonstrative aid during closing ar- gument. On the eighteenth day of trial, Van Eman took the stand. He testified that he relied on McConley to forward him all the confir- mations from the bank and related financial documents, so he never knew that McConley was stealing investors’ money. On cross-examination, Van Eman gave contradictory responses about a fake bank letter he had emailed Kevin Burke, a financial manager who represented a voice actress doing business with Van Eman. The letter was signed by Rafael and purported to confirm Wells Fargo’s involvement in the “deal” between Van Eman and Burke’s client. Van Eman first denied writing the letter to Burke. But then he admitted to “dictating” the letter to Rafael. And later, Van Eman said that he “wrote the letter” “[b]ased on [ ] request.” After the Government asked Van Eman about another fake bank letter signed by Rafael and forwarded to a producer by Van Eman, the court admonished Van Eman for failing to answer the Government’s questions. Following that, Van Eman admitted that he wrote that letter, too. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 9 of 31 22-12523 Opinion of the Court 9 On the final day of trial, the court instructed the jury that it could find Van Eman guilty of conspiracy only if the Government proved that he “knew the unlawful purpose of the plan and will- fully joined it.” It issued a similar instruction for wire fraud, telling the jury that the Government had to prove that Van Eman “know- ingly devised or participated in a scheme to defraud someone by using false or fraudulent pretenses, representations, or promises.” The court then defined the terms “knowingly” and “willfully” for the jury. It also instructed them on deliberate ignorance. The court told the jury that “deliberate avoidance of positive knowledge” is the same thing as knowledge itself; the jury could find that Van Eman knew a statement was false if he “had every reason to know but deliberately closed his eyes.” But the court cautioned the jury that “negligence, carelessness, or foolishness is not enough to prove that the defendant knew the statement was false.” The court also issued two reminders to the jury. First, it re- minded them that the TRO was based on the lesser preponderance- of-the-evidence standard, and that the jury had to reach its decision beyond a reasonable doubt. Second, it reminded them that state- ments made by the lawyers were not evidence. During closing, Van Eman’s counsel argued that he “was do- ing business while Ben McConley was doing crime.” The Govern- ment responded in its closing with the following assertion: “[I]f you weren’t here in federal court, ladies and gentlemen, if this case hadn’t been brought, if he hadn’t been indicted and arrested, he USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 10 of 31 10 Opinion of the Court 22-12523 would be out there doing the same thing with somebody else.” Van Eman objected and moved for a mistrial on the grounds that the Government’s statement implied that, if the jury didn’t convict him, Van Eman would commit more crimes. The court deter- mined that the Government’s comment had no effect on the jury’s ultimate decision and denied the motion for mistrial. Van Eman did not ask the court to give a separate instruction to the jury about this comment. That same day, the jury found Van Eman guilty on all 31 counts. In preparation for sentencing, a probation officer prepared a presentence investigation report, or PSI. Van Eman objected to three of the officer’s determinations.3 First, the officer concluded that Van Eman was responsible for a loss amount of $60 million and assessed a 22-level increase because the loss amount fell between $25 and $65 million. Second, the of- ficer added a four-level enhancement because he recommended a finding that Van Eman was an organizer or leader of a criminal ac- tivity that involved five or more participants. And third, he added a two-level enhancement for obstruction of justice because he rec- ommended finding that Van Eman had perjured himself at trial by claiming that he didn’t know McConley was committing fraud, in- sisting he didn’t know Rafael had been fired, and offering false evi- dence to conceal his creation of false Wells Fargo Bank letters. 3 Van Eman originally also objected to an enhancement based on sophisticated means. At sentencing, he conceded the issue. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 11 of 31 22-12523 Opinion of the Court 11 With a criminal-history score of zero and a criminal-history cate- gory of I, this all added up to a guideline imprisonment range of 262 to 327 months. The court overruled each of Van Eman’s objections and sen- tenced him to 262 months’ imprisonment and three years of super- vised release. The court also ordered him to pay $9,196,934.36 in restitution. II. STANDARDS OF REVIEW We review de novo several issues Van Eman raises. We re- view de novo questions of constitutional law, United States v. Un- derwood, 446 F.3d 1340, 1345 (11th Cir. 2006), claims for ineffective assistance of counsel, United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002), and challenges to the court’s jury instructions, United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). We review evidentiary questions for abuse of discretion. Underwood, 446 F.3d at 1345. As for the district court’s application of the sentencing guidelines, we review legal issues de novo, factual findings for clear error, and a district court’s application of the guidelines to the facts with due deference. United States v. Isaac, 987 F.3d 980, 990 (11th Cir. 2021). III. DISCUSSION We divide our discussion into five parts. First, we show that the district court did not violate Van Eman’s constitutional rights by excluding or admitting certain evidence. Second, we explain that the prosecutor did not commit misconduct that affected Van USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 12 of 31 12 Opinion of the Court 22-12523 Eman’s substantial rights in his closing argument. Third, we dis- cuss why the court did not improperly instruct the jury on deliber- ate ignorance, and why, even if it did, any error was harmless. Fourth, we conclude that we may not consider Van Eman’s inef- fective-assistance-of-counsel claim on direct appeal. Fifth and fi- nally, we explain that the district court did not err in imposing Van Eman’s sentence. A. The district court did not violate Van Eman’s constitu- tional rights by excluding or admitting certain evi- dence. First, Van Eman argues that the district court violated his rights to due process, a fair trial, and meaningful adversary pro- ceedings by excluding Noisette’s summary charts and the corre- sponding bank records and by admitting evidence of the civil law- suits. We begin with the summary charts and bank records. Un- der the Fifth and Sixth Amendments, criminal defendants have the right to present evidence in their favor. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). When a criminal defendant argues that the district court violated this right, we must first determine whether the district court committed a constitutional violation when it excluded the evidence. Id. If it did, then we must decide whether the error was “harmless beyond a reasonable doubt.” Id. at 1362–63. Of course, a defendant’s right to present evidence “is not ab- solute.” United States v. Mitrovic, 890 F.3d 1217, 1221 (11th Cir. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 13 of 31 22-12523 Opinion of the Court 13 2018). For instance, “state and federal rulemakers have broad lati- tude under the Constitution to establish rules excluding evidence from criminal trials.” Id. (quoting United States v. Scheffer, 523 U.S. 303, 308 (1998)). For that reason, a court does not violate a defend- ant’s right to present evidence when it excludes evidence based on rules that are not “arbitrary or disproportionate” “to the purposes they are designed to serve.” Id. And neither we nor the Supreme Court has ever held that “a federal rule of evidence violated a de- fendant's right to present a complete defense.” Id. at 1222. The upshot is that, when a district court excludes a defend- ant’s evidence based on the Federal Rules of Evidence or Criminal Procedure, it does not violate the defendant’s constitutional rights unless (1) the rule is itself “arbitrary and disproportionate,” which we have never held; or (2) the district court abused its discretion in its application of the Rule. Id. at 1222. A district court abuses its discretion only when it applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment. United States v. Willner, 795 F.3d 1297, 1316 (11th Cir. 2015). Here, the district court excluded the summary charts and bank records from evidence under Federal Rule of Criminal Proce- dure 16, as sanction for Van Eman’s failure to disclose them until the fifteenth day of trial. Under Rule 16, a district court can refuse to allow a party to introduce evidence that it failed to properly dis- close. FED. R. CRIM. P. 16(d)(2). For us to reverse a district court’s Rule 16 determination, the criminal defendant must show that it USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 14 of 31 14 Opinion of the Court 22-12523 prejudiced his substantial rights. United States v. Mosquera, 886 F.3d 1032, 1045 (11th Cir. 2018). That happens when a defendant is “un- duly surprised” and so “lacks an adequate opportunity to prepare a defense,” or when “the mistake substantially influences the jury.” United States v. Camargo-Vergara, 57 F.3d 993, 998–99 (11th Cir. 1995). We do not understand Van Eman to argue that Rule 16 is itself unconstitutionally arbitrary and disproportionate. That makes sense, because the Supreme Court has held that preclusion of witnesses can be a permissible sanction against a criminal de- fendant who violates a discovery order. Taylor v. Illinois, 484 U.S. 400, 411–12 (1988) (“Discovery, like cross-examination, minimizes the risk that a judgment will be predicated on incomplete, mislead- ing, or even deliberately fabricated testimony. The ‘State’s interest in protecting itself against an eleventh-hour defense’ is merely one component of the broader public interest in a full and truthful dis- closure of critical facts.”); Michigan v. Lucas, 500 U.S. 145, 151 (1991) (“We have indicated that probative evidence may, in certain cir- cumstances, be precluded when a criminal defendant fails to com- ply with a valid discovery rule.”). Instead, Van Eman contends that the district court abused its discretion by imposing too severe a sanction: excluding the sum- mary charts and witness lists. We disagree. The court twice or- dered Van Eman to disclose his exhibits and witness lists, but he did not. Instead, he told the court that he intended “to see how the government’s case play[ed] out.” Van Eman does not dispute that USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 15 of 31 22-12523 Opinion of the Court 15 he violated the court’s pretrial order, nor that Rule 16 allowed the court to impose a sanction for that violation. When the court imposed the sanction, it held that Van Eman’s failure to disclose the charts and 72,000 pages of bank doc- uments hampered the Government’s ability to prepare its case and adequately cross-examine Noisette. Even so, the court limited the sanction by allowing Noisette to testify about the charts and by al- lowing Van Eman’s counsel to use the charts as demonstrative aids in closing. Based on the record here, the district court did not abuse its discretion by ruling in this way. And in any event, Van Eman has failed to show that the sanc- tion prejudiced his right to present a defense. See United States v. Petrie, 302 F.3d 1280, 1289 (11th Cir. 2002) (holding that no preju- dice existed when the excluded witness would have “simply pro- vided the jury with background information regarding financial matters”); United States v. Yates, 733 F.3d 1059, 1065 (11th Cir. 2013), rev’d on other grounds, 574 U.S. 528 (2015) (concluding that a crimi- nal defendant failed to show that the preclusion of one expert prej- udiced his right to present a defense, because another expert of- fered the same testimony). Indeed, compelling evidence suggests the contrary, not least that Noisette testified about the contents of the charts and that counsel used them in closing. And Van Eman’s argument based on the summary charts (that he used money he earned from some victims to partially fund others) is not a defense to any of the charges he faced. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 16 of 31 16 Opinion of the Court 22-12523 In short, Van Eman has not established that the district court abused its discretion and that he suffered constitutional harm as a result. So we do not reach the question of harmless error. We turn next to the evidence of civil lawsuits filed against Van Eman. The court admitted, over Van Eman’s objection, evi- dence of service of fourteen lawsuits against him, each alleging that Van Eman and McConley had defrauded the producers by luring them into fraudulent Funding Agreements and failing to match their multi-million-dollar investments, or to use that money to ob- tain lines of credit to finance their projects. Under Federal Rule of Evidence 403, “[t]he court may ex- clude relevant evidence if its probative value is substantially out- weighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly pre- senting cumulative evidence.” FED. R. EVID. 403. All evidence is, by definition, prejudicial in that it makes a jury more or less likely to find an alleged fact. Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 (11th Cir. 2015). Rule 403 provides for the exclusion of only that evidence that is unfairly prejudicial. United States Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1287 (11th Cir. 2001). But cautionary jury instructions can cure potential unfair prejudice. United States v. Calderon, 127 F.3d 1314, 1334 (11th Cir. 1997). Because district courts should invoke the rule only “spar- ingly,” United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011), when we conduct a Rule 403 inquiry, we view evidence in a light USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 17 of 31 22-12523 Opinion of the Court 17 most favorable to admission, United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). Here, the district court did not abuse its discretion in admit- ting evidence from the civil lawsuits. That evidence showed that, several years before Van Eman faced any kind of criminal sanction, he was a named defendant in over a dozen civil lawsuits alleging that he and McConley had defrauded producers and run away with the ill-gotten gains. This evidence contradicted Van Eman’s testimony that, as he recruited producers and sent them fake confirmation letters from fired bankers, he had no idea that the Funding Agreements were a sham or that McConley never intended to match the pro- ducers’ deposits. That’s, of course, probative of his guilt—not least because Van Eman defended himself by claiming that he had “no knowledge” and “no intent” to “do[] fraud.” The lawsuits also helped show that Van Eman defrauded later producers to obtain money he used to resolve his pending civil cases, as charged in the indictment. And the wire-fraud charge in- volved an allegation that Van Eman told McConley that one pro- ducer, Buzbee, would sue the pair if they didn’t refund his invest- ment. So the lawsuits provided evidence of motives: personal profit and cover up. But even assuming this evidence might have unfairly preju- diced Van Eman—a proposition with which we disagree—the dis- trict court mitigated that risk by instructing the jury several times about the higher burden of proof in a criminal trial. We assume USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 18 of 31 18 Opinion of the Court 22-12523 juries follow the judge’s instructions. United States v. Kennard, 472 F.3d 851, 858 (11th Cir. 2006). Van Eman also made a minimalist argument that the district court erred by refusing to admit into evidence an email from McConley to one of his attorneys. But Van Eman offers no cita- tions to the record or the law in support of his argument. So he has forfeited it. FED. R. APP. P. 28(a)(8)(A); see also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (holding that an appellant abandons a claim “when he either makes only passing references to it or raises it in a perfunctory manner without sup- porting arguments and authority.”). In sum, the district court did not violate Van Eman’s consti- tutional rights (or abuse its discretion) by excluding the summary charts and bank records or by admitting evidence of the civil law- suits. B. The prosecutor’s statement during his closing argu- ment did not affect Van Eman’s substantial rights. Next, we consider Van Eman’s argument that the prosecu- tor made an improper statement in closing argument by telling the jury that, if Van Eman had “never been indicted and arrested,” he “would be out there doing the same thing to somebody else.” Van Eman argues that this statement warrants reversal. We disagree. We may reverse a conviction based on a prosecutor’s argu- ment only if it was both improper and prejudicial to Van Eman’s substantial rights. United States v. Nerey, 877 F.3d 956, 970 (11th Cir. USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 19 of 31 22-12523 Opinion of the Court 19 2017). “A prosecutor’s remarks, suggestions, insinuations, and as- sertions are improper when they are calculated to mislead or in- flame the jury’s passions.” United States v. Azmat, 805 F.3d 1018, 1044 (11th Cir. 2015). And improper remarks prejudice a defend- ant’s substantial rights only when “there is ‘a reasonable probabil- ity . . . that, but for the remarks, the outcome of the trial would have been different.’” Nerey, 877 F.3d at 970 (omission in original) (quoting United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006)). That standard is high, and Van Eman does not meet it. The Government argues that the prosecutor did nothing more than re- spond to Van Eman’s arguments. And it’s true that a prosecutor “is entitled to make a fair response to the arguments of defense counsel.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014). In particular, the Government asserts that the prosecutor’s state- ment countered the argument that Van Eman believed he partici- pated in a legitimate business by emphasizing that he was involved in multiple fraudulent arrangements with McConley. We assume without deciding that the statement was improper. But even after making that assumption, we can’t say the statement prejudiced Van Eman’s substantial rights. Indeed, there’s no “reasonable probability” that this single statement, made in closing after a 22-day trial with testimony from fifteen victims, changed the outcome of the case. Nerey, 877 F.3d at 970. The court also mitigated any risk of prejudice by instructing the jury five sep- arate times that the lawyers’ statements were not evidence. See USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 20 of 31 20 Opinion of the Court 22-12523 United States v. Bobal, 981 F.3d 971, 976 (11th Cir. 2020) (holding that a court may rectify improper statements by instructing the jury that the lawyers’ statements are not evidence, and that they may only consider the evidence). So we affirm the district court on this score. C. The district court did not improperly instruct the jury on deliberate ignorance, but even if it did, any error was harmless. Third, Van Eman argues that the district court should not have instructed the jury on deliberate ignorance because (1) the prosecution’s theory was based on actual knowledge; (2) the in- struction was unsupported by the facts; and (3) the instruction less- ened the Government’s burden of proof. We will not reverse a conviction based on a jury instruction unless the court presented the issues of law inaccurately or “im- properly guided the jury in such a substantial way as to violate due process.” United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). That’s so because district courts have “broad discretion” to formulate jury instructions, so long as the instructions accurately reflect the law and the facts. United States v. Williams, 526 F.3d 1312, 1320 (11th Cir. 2008) (per curiam) (citing Prather, 205 F.3d at 1270). When a charge requires the Government to show the de- fendant’s “knowledge,” it can do that by providing evidence of ei- ther actual knowledge or deliberate ignorance. United States v. Hris- tov, 466 F.3d 949, 952 (11th Cir. 2006); United States v. Arias, 984 F.2d USCA11 Case: 22-12523 Document: 121-1 Date Filed: 10/20/2026 Page: 21 of 31 22-12523 Opinion of the Court 21 1139, 1143 (11th Cir. 1993) (holding that deliberate ignorance is “the equivalent of knowledge”). If the evidence supports it, the court can instruct the jury on both theories. United States v. Matire, 898 F.3d 1151, 1157 (11th Cir. 2018). So a court may give the jury a deliberate-ignorance instruction “when ‘the facts . . . support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.’” United States v. Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994) (quoting United States v. Rivera, 944 F.2d 1563, 1571 (11th Cir. 1991)). Either direct or circumstantial evidence can support a finding of deliberate ignorance. Arias, 984 F.2d at 1143. Here, Van Eman claimed he did not know what McConley was doing. Yet at least circumstantial evidence suggested that Van Eman was, at best, deliberately ignorant of the con. We repeat some—but not all—of that evidence here. In 2012, Van Eman received a letter alleging that McConley had no assets