UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-10849

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH STEDMAN, and

GARY A. GORDON,

Defendants-Appellants.

____________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

November 13, 1995

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Before REYNALDO G. GARZA, BARKSDALE, and EMILIO M. GARZA, Circuit

Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The principal issue at hand is loan loss determination under

the Sentencing Guidelines. Joseph Stedman and Gary A. Gordon

appeal their convictions and sentences for: conspiracy, in

violation of 18 U.S.C. § 371; misapplication of bank funds, in

violation of 18 U.S.C. § 656; and false entries in bank records, in

violation of 18 U.S.C. § 1005. In addition to the loan loss issue,

both contest the Govern ment's peremptory challenges, and the

restitution orders. Stedman claims also insufficient evidence and

ineffective counsel. We AFFIRM.- 2 - I.

Stedman was Chief Executive Officer, and Gordon, President, of

the Lone Star National Bank in Dallas, Texas, whose accounts were

insured by the FDIC. The bank, which was heavily involved in real

estate loans, opened in August 1984, and, upon deteriorating

financially, closed in November 1990.

The Government introduced evidence that, during the bank's

decline, Stedman, among other improper actions, instructed

employees to remove from loan files documents that would have

reflected adversely on ailing loans; and that Gordon, subservient

to Stedman, was present when documents were removed and knew about

the scheme. It posited that, by transferring these materials to

secret ("contra") files, the defendants were able to make the loans

appear healthier to federal regulators.

As a result, Lone S tar, i nter alia

, avoided unwelcome

decreases in its capital, because the regulators did not require it

to increase its loan loss reserves, which would have been the

likely result had they not been denied access to negative borrower

information. By this scheme, Lone Star's assets were fraudulently

made to look better than they were. Likewise, the Comptroller of

the Currency (OCC) and FDIC were impeded from performing regulatory

functions because, by concealing information that reflected

negatively on the loans, the defendants gave them a misleading

picture of the bank's financial health, and this prevented the OCC

and FDIC from taking remedial measures.- 3 -

The Government also introduced evidence tha t the defendants

misapplied bank funds by, during bank hours, requiring bank

employees to perform non-banking activities that personally

benefitted the defendants.

II.

At issue are whether: (1) the Government's peremptory

challenges were g ender based; (2) the evidence was sufficient to

convict St edman; (3) Stedman received ineffective assistance of

counsel; and (4) the use of the total loa n loss amount for

determin ing sentence was erroneous; and, as a result, (5) the

restitution orders were erroneous.

A.

Stedman and Gordon contend that the district court allowed the

Government to use five of its six peremptory challenges in a manner

calculated to discriminate on the basis of gender. The Batson v.

Kentucky

, 476 U.S. 79 (1986), proscription against race based

peremptory challenges was extended in J.E.B v. Alabama

,

__ U.S.

__,

114 S. Ct. 1419 (1994) to gender based strikes.

Once a party has challenged the basis for a strike, the

striking party must articulate a nondiscriminatory reason for it.

Hernandez v. New York

, 500 U.S. 352, 358 (1991). And, the court's

ruling on the motivation for the strike is a finding of fact

reviewed only for clear error. E .g., United States v. BentleySmith , 2 F.3d 1368, 1372 (5th Cir. 1993).

The Government explained that its strikes were motivated by

the following: one person's ambivalence about the concept of aiding- 4 -

and abetting; another's lack of any strong conviction; an other's

failure to stay for a con ference about conflicts; another's

favorable reaction to a defense attorney; and another's inability

to concentrate on the case due to her concern about her young

child. The district court found that the Government had credibly

explained a nondiscriminatory purpose; it fur ther found relevant

that four women were impaneled. There was no clear error.

B.

Stedman and Gordo n testified. As for Stedman's sufficiency

challenge, and as is more than well-known, we must allow a

conviction to stand if, "after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt." Jackson v. Virginia 443 U.S. 307 (1974).

Our review of the evidence more than satisfies us that the

Jackson standard has been met. The Government provided testimonial

evidence that, inter alia

, S tedman required all decisions to go

through him; knew of, and directed, the creation and maintenance of

the "contra" files; and gave directions to employees on "ranch

days", which required them to be absent from their banking duties

in order to, among other duties, repair apartment buildings owned

by Stedman and Gordon.

C.

Stedman claims ineffective assistance of counsel because his

attorney failed to: (1) make an opening stat ement; (2) crossexamine several of the Government's witnesses; and (3) object to an- 5 -

organizational chart. Of course, to prevail on this claim, he must

demonstrate both that his attorney's efforts fell below an

objecti ve standard of reasonableness, and that a reasonable

probability exists that, but for the errors, the result of the

trial would have been dif ferent. S trickland v. Washington

, 466

U.S. 668, 688 (1984).

For each of the three instances, the decision could be

motivated by reasonable tactical objectives. For example, as for

waiving the opening statement, Stedman's co-defendant made one, and

Stedman's attorney could have concluded that another would be

wastefully duplicative or unhelpful. But, in any event, for none

of the three instances does Stedman state why the trial would have

ended differently; his claim fails.

D.

Stedman and Gordon assert t hat the loss calculation used to

determine their sentences was error; that they should not have been

held accountable for the total losses that the bank suffered on the

loans, because their conduct in issue was only responsible for a

portion of that loss. We review loss calculations only for clear

error; on the other hand, interpretation of the Guidelines is a

question of law requiring plenary review. E .g., United States

v.Hill

,

__ F.3d

__, 1995 WL 5879 (5th Cir. 19 95). Even assuming

arguendo that the claimed error is instead one of interpretation,

we find no error.

Stedman and Gordon were sentenced in consideration of U.S.S.G.

§ 2F1.1 for offenses involving fraud or deceit; a precise1 According to the PSR, the 66 loans totaled $8,117,626.88; the

bank's re sulting losses, $5,659,713.71. The PSR stated that the

latter was the amount of loss.

2 Stedman maintains cryptically that the calculations in the PSR

were "factually incorrect". Without further explanation, he refers

only to his objections to the PSR. The nature of this argument is

unclear from both h is brief and the Addendum to the PSR, which

reflects his objections but explains nothing about a contention of

factual errors rendering the PSR unreliable. In any event, we do

not address issues not expla ined in a brief. S ee F ED

. R. A PP

. P.

28(6) (requiring appellants' brie fs to contain contentions and

reasons therefor).

- 6 - determination of the loss amount is not required. U.S.S.G. §

2F1.1, comment, n.8. The Presentence Report (PSR) aggregated the

bank's losses for each of the loans in association with which

Stedman and Gordon hid information. 1 The court sentenced using

that amount.

Stedman and Gordon urge us to hold that the sentencing loss

amount should be only that part of the loss for which their illegal

conduct was the cause. 2 They maintain that a portion of the loss

was unavoidable, that the bank was financially troubled before they

concealed information. Accordingly, they conclude that the

sentencing court must determine the loss amount for which their

wrong ful conduct was the sole cause, and use only that amount in

sentencing. As hereinafter discussed, we refuse to so interpret

the Guidelines.

The impracticability of the course urged by Stedman and Gordon

is perhaps best demonstrated by their inabili ty to offer a

reasonable figure for the loss. The methodology suggested by

Gordon for calculating the portion of the loss for which they are

responsible fails to reflect adequately the substantial losses to3 Gordon's assertion that $113,355 represents the loss for which

the defendants should be charged does not explain how the amount

relates to their activity. Gordon fails to demonstrate how his

calcul ation is more reflective of the responsibility of the

defendants.

- 7 - which the bank was exposed. 3 Realistically, no one can assess such

a thing precisely; and we refuse to ask sentencing courts to

undertake such Herculean tasks or to afford the benefit of the

dou bt to bank officers who engage in wrongful conduct. As the

district court aptly noted, the "wrongdoer is not entitle d to

complain that [the losses] cannot be measured with the exactness

and precision that would be possible in the case which he alone is

responsible for making or otherwise".

Moreover, our holding is cons istent with the analogous

situation in which the face amount of a fraudulently presented

instrument was considered the loss, even though the presenter drew

only a portion of the funds. U nited States v. Wimbish

, 980 F.2d

312 (5th Cir. 1992). There, the defendant was found guilty of

perpetrating a scheme by which he deposited fraudulent checks, and

then withdrew only a portion of the face amount. Id. at 313. We

held the defendant accountable for the entire loss to which the

bank was exposed (the face amount), rather than for only the amount

actually lost (the amount withdrawn). Id. at 316.

This situation is similar; Stedman and Gordon exposed the bank

to the possib ility of loss for the entire loan amount when they

chose to impede regulators from considering information that could

have led them to intercede to protect the ban k. Attributing the

entire amount of loss to Stedman and Gordon is no more unfair than- 8 -

attributing the face amount of the fraudulent checks to the

defendant in Wimbish

. The fact that Stedman and Gordon's crimes

were more sophisticated does not compel us to treat them more

leniently.

In addition, deterrence would be undermined by the approach

advanced by Stedman and Gordon because, by complicating the

transaction underlying their criminal conduct, defrauders could

manipulate to their advantage the losses for which they might be

charged. In short, we refuse to interpret the Guidelines to allow

parties who choose to commit complex or complicated bank crimes to

receive a windfall simply because of the very complexity of those

crimes.

We n ote also that this type of bank fraud is more likely to

occur with re spect to unhealthy loans or during financially hard

times. By requiring sentencing courts to ferret out the discrete

amount attributable solely to the fraud of those who commit similar

crimes, we wo uld provide wrongdoers an ideal instrument -- a

troubled loan

-- for their fraud. Were we to hold that a troubled

real estate market provides a safe haven for bank officers to

fraudulently tamper with loan records, we would produce the noxious

result that markets unfriendly to real estate vent ures would be

friendly to bank crimes.

I n sum, the Guidelines are adequately flexible to allow the

sentencing court to hold these defendants responsible for the

entire loss associated with these loans.- 9 - E.

Because we find no error in the application of the Guidelines,

we reject as well Stedman and Gordon's claims that their

restitution orders were erroneous. Further, we reject Stedman's

contention that the district court disregarded his ability to pay

the amount of restitution ordered. The latter claim ignores the

fact that the court adopted the PSR, which stated the following

about Stedman's ability to pay restitution:

Based on the information provided, [Stedman]

does not appear to have the ability to pay a

fine or restitution immediately

, if such an obligation is imposed by the Court. However,

he does have marketable skills and abilities

that could generate income to allow

installment payments on such obligation

.

(Emphasis added.)

Moreover, Stedman made no objection to the adoption of the PSR

at his sentencing hearing. Therefore, we review only for plain

error. U

nited States v. Calverly , 37 F.3d 160, 162-64 (5th Cir.

1994) (en banc) (if appellant shows clear or obvious error that

affects his substantial rights, appellate court has discretion to

c orrect errors that seriously affect the fairness, integrity, or

public reputation of judicial proceed ings) c ert. denied

,

__ U.S.

__, 115 S. Ct. 1266 (1995). Because Stedman's ability to pay was

considered, we cannot say that the restitution decision constitutes

the type of clear or obvious error required under our plain error

standard. Id

. at 162.- 10 - III.

For the foregoing reasons, the judgments are

AFFIRMED

.