FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-50088

Plaintiff-Appellee, D.C. No.

v.  CR-01-00056-AHS02 LETANTIA BUSSELL,

Defendant-Appellant. 

UNITED STATES OF AMERICA,  No. 06-50140

Plaintiff-Appellee, D.C. No.

v.  CR-01-00056-AHS01 LETANTIA BUSSELL,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted

February 6, 2007—Pasadena, California

Filed September 27, 2007

Before: Diarmuid F. O’Scannlain, Edward Leavy, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain

13265
COUNSEL

Dan Marmalesfsky, Morrison & Foerster LLP, Los Angeles,

California, argued the cause for the defendant-appellant, and

filed briefs; Heather Pearson, Morrison & Foerster LLP, Los

Angeles, California, was on the briefs. 

Paul Stern, Assistant U.S. Attorney, Major Frauds Section,

Los Angeles, California, argued the cause for the plaintiffappellant, and filed a brief; Debra Wong Yang, U.S. Attorney,

Thomas P. O’Brien, Assistant U.S. Attorney, Chief, Criminal

Division, and Ranee A. Katzenstein, Assistant U.S. Attorney,

Major Frauds Section, were on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We are asked to decide whether the district court properly

determined the amount of intended loss for purposes of sentencing, and the amount of actual loss for purposes of restitution, resulting from convictions for bankruptcy fraud. 

UNITED STATES v. BUSSELL 13269
I

Letantia Bussell (“Letantia”) is a practicing dermatologist.1

Her late husband, John Bussell, was a practicing cardiac

anaesthesiologist until 1992. In 1992, the Bussells were experiencing significant financial difficulties. They owed the Internal Revenue Service (“IRS”) and the California State

Franchise Tax Board approximately $1.2 million in taxes,

interests, and penalties assessed for tax years 1983, 1984,

1986, and 1987. They also owed the Bank of Beverly Hills

$787,500.00. 

Upon the advice of their former lawyers, the Bussells organized the dermatology practice into a three-tiered structure in

1992. The new arrangement separated the business and medical aspects of Bussells’s practice: BBL Medical Management,

Inc. (“BBL”) received the practice’s gross receipts, paid the

expenses and overhead, and retained the profits; Beverly Hills

Dermatology Medical Corp. (“Beverly Hills Medical”)

received 10% to 20% of BBL’s profits and employed Letantia

through her professional corporation, L.B. Bussell, MD, Inc.

(“L.B. Bussell, Inc.”), for an artificially reduced salary. BBL

and Beverly Hills Medical were held in the names of nominee

owners; Letantia was the sole shareholder and officer of public record of L.B. Bussell, Inc. The Bussells further enlisted

the help of their former lawyers in 1993 to set up various corporations to conceal ownership of a four-unit condominium in

the Stein-Ericksen Lodge in Park City, Utah (the “Utah condominium”), a San Diego farm, and receipt of disability insurance income. The Bussells also opened an off-shore bank

account to receive funds from John Bussell’s pension plan. 

On March 7, 1995, the Bussells, together with their former

lawyers, filed a joint bankruptcy petition. The Bussells

1As the facts are set out at length in our prior opinion in Letantia’s first

appeal, we will only briefly discuss the relevant facts here. See United

States v. Bussell (Bussell I), 414 F.3d 1048 (9th Cir. 2005). 

13270 UNITED STATES v. BUSSELL
reported total assets of $1,783,026.30 and total debts of

$4,677,194.22 on that petition. The amount of debt scheduled

for discharge totaled $3,057,927.09, but the bankruptcy court

only discharged debt of $2,293,527.09 because a liability of

$764,000.00 to Provident was at issue in pending litigation. 

Following the bankruptcy discharge, Letantia was charged

in a 17-count indictment, along with two co-defendants, with

conspiracy, concealment of assets in contemplation of bankruptcy, making false declarations, perjury, and attempted tax

evasion. At trial, the Bussells argued that they had acted in

good faith and relied on the advice of their lawyers. Bussell

I, 414 F.3d at 1052. After jury deliberations had begun, John

Bussell fell to his death from his hotel room. Id. 

The jury ultimately convicted Letantia of the following

counts charged in the indictment: conspiracy to conceal assets

in contemplation of bankruptcy and to make false statements

in the bankruptcy (count 1); concealing ownership in BBL,

including BBL’s bank account with a balance of $949,048.00

(count 2); concealing ownership in Beverly Hills Medical,

including Beverly Hills Medical’s bank account with a balance of $5,787.00 (count 3); making false statements in the

bankruptcy petition (counts 5 and 6); and willfully attempting

to evade a substantial portion of income tax owed for tax

years 1983, 1984, 1986, and 1987 (count 12). The jury, however, acquitted Letantia of concealing ownership of the Utah

condominium (count 4); making a false oath and account that

she was not actively involved with any corporations other

than L.B. Bussell, Inc. except on a passive investment basis

(count 11); and willfully attempting to evade a substantial

portion of income tax owed for 1996 (count 17). 

Their former lawyers, Sherman and Beaudry, entered into

plea agreements with the government, under which Sherman

pleaded guilty to conspiracy and to attempted tax evasion, and

Beaudry pleaded guilty to aiding and abetting attempted tax

evasion and the filing of false tax returns. Id. 

UNITED STATES v. BUSSELL 13271
Applying the then-mandatory Sentencing Guidelines, the

district court sentenced Letantia to a mid-range sentence of 36

months imprisonment. In determining her offense level for

purposes of calculating an appropriate Guidelines range, the

district court increased the base offense level by 13 levels,

finding that the intended loss equaled $3,057,927.09, the

amount of debt scheduled for discharge in bankruptcy. The

district court also ordered Letantia to pay, in addition to a special assessment and a fine, restitution totaling $2,393,527.00,

for which she was jointly and severally liable with attorneys

Sherman and Beaudry, and prosecution costs totaling

$62,614.37. 

Letantia timely appealed her conviction, her sentence, and

the district court’s orders of restitution and costs. The government timely cross-appealed Letantia’s sentence. In Bussell I,

we affirmed Letantia’s conviction, but ordered a limited

remand pursuant to Ameline. Bussell I, 414 F.3d at 1060. We

also vacated the district court’s orders of restitution and prosecution costs, and remanded for reconsideration. Id. 

On remand, the district court declined to reopen sentencing

proceedings, concluding that Letantia’s sentence would not

have materially differed had the Guidelines been advisory at

the time of the original sentencing. The district court also

ordered restitution of $2,284,172.87, costs of prosecution of

$55,626.09, and a criminal fine of $50,000.00. 

Letantia timely appealed.

II

We first consider Letantia’s various challenges to her sentence.2

2

“Commentary to the Guidelines binds us in interpreting their provisions unless it violates the Constitution or a federal statute, or is inconsistent with the Guidelines.” United States v. Asberry, 394 F.3d 712, 716 n.5

(9th Cir. 2005). 

13272 UNITED STATES v. BUSSELL
A

[1] The Sentencing Guidelines assign a base offense level

of six, see U.S.S.G. § 2F1.1(a) (1994),3 and then increase

levels according to the amount of loss resulting from the

fraud, see U.S.S.G. § 2F1.1(b)(1).4 The accompanying application notes define “loss” as “the value of the money, property, or services unlawfully taken.” U.S.S.G. § 2F1.1 cmt. n.7.

The application notes further provide that “if an intended loss

that the defendant was attempting to inflict can be determined,

this figure will be used if it is greater than the actual loss.”

U.S.S.G. § 2F1.1 cmt. n.7. In some cases, “additional factors

are to be considered in determining the loss or intended loss.”

U.S.S.G. § 2F1.1 cmt. n.7 The commentary also explains that

“the loss need not be determined with precision. The court

need only make a reasonable estimate of the loss, given the

available information.” U.S.S.G. § 2F1.1 cmt. n.8 (emphasis

added). 

The thrust of Letantia’s argument is that intended loss

should be categorically limited to the value of the concealed

assets or the value of her liabilities, whichever is less. She

contends that the district court erred by determining her

intended loss based on the amount of debt discharged in bank3To avoid ex post facto infractions, the district court applied the 1994

Guidelines. See United States v. Williamson, 439 F.3d 1125, 1137 n.14

(9th Cir. 2006) (“The district court must apply the Guidelines in effect

when the defendant is sentenced, unless doing so creates ex post facto

issues.”). We therefore refer to the November 1, 1994, edition throughout

this opinion. 

4We review de novo the district court’s interpretation of the Sentencing

Guidelines. United States v. Stoddard, 150 F.3d 1140, 1145 (9th Cir.

1998). The meaning of “loss” under the Sentencing Guidelines is a question of law reviewed de novo. Id. We review for clear error the district

court’s factual findings, including the calculation of loss to the victims.

United States v. W. Coast Aluminum Heat Treating Co., 265 F.3d 986, 990

(9th Cir. 2001). 

UNITED STATES v. BUSSELL 13273
ruptcy, $3,057,927.09, rather than by the allegedly much

lower net value of the concealed assets, $85,000.00.5

[2] This argument appears at first glance to find support in

Eighth Circuit precedents. In United States v. Dolan, 120 F.3d

856 (8th Cir. 1997), the defendant committed bankruptcy

fraud by concealing assets well in excess of the debt to be discharged. Id. at 862, 870-71. Under those circumstances, the

Eighth Circuit concluded that the intended loss should be calculated “by using either the value of the assets concealed or

the value of the debtor’s liabilities, whichever is less.” Id. at

870. In contrast to the facts in Dolan, in United States v.

Wheeldon, 313 F.3d 1070 (8th Cir. 2002), the defendant filed

for bankruptcy, concealing assets worth much less than the

debt scheduled to be discharged. Id. at 1072. The Eighth Circuit stated in Wheeldon that “[i]t belies reality to argue that

[the defendant], or a debtor similarly situated, intended to

defraud his creditors of everything he owed them solely

because he failed to disclose all of his (rather modest) assets.”

Id. at 1073. Accordingly, the Eighth Circuit held that intended

loss must be limited to the value of the concealed assets that

the defendant’s creditors would have known about if the

bankruptcy petition had been truthful. Id.

[3] Letantia relies on these Eighth Circuit decisions to

argue that we should fashion a categorical rule for purposes

of sentencing in bankruptcy fraud cases. We decline such

invitation. First, in United States v. Holthaus, 486 F.3d 451

(8th Cir. 2007), an opinion filed after oral argument in this

case, the Eighth Circuit rejected a similar mischaracterization

of Dolan and Wheeldon. Id. at 455. There, the Eighth Circuit

expressly held: “There is no blanket rule defining intended

loss as the lesser of the value of assets concealed or the value

5Letantia arrives at this amount by totaling the funds concealed in the

BBL Sanwa account ($949,048.00), and the BH Medical account

($5787.00), and subtracting unpaid taxes, interests, administrative

expenses, and other possible exemptions. 

13274 UNITED STATES v. BUSSELL
of the debtor’s liabilities. Indeed, some factual scenarios may

require an intended loss calculation based on the greater of the

value of the assets concealed or debt sought to be discharged.” Id. “When determining intended loss,” the Eighth

Circuit emphasized, the focus must be on “the amount of loss

a defendant actually intended to cause his creditors.” Id.

Our decision in United States v. Stoddard, 150 F.3d 1140,

counsels as well against adopting a broad categorical limitation on intended loss. There, we advised sentencing courts

against “mechanically apply[ing]” the Sentencing Guidelines

“in calculating loss in fraud cases.” Id. at 1146 (alteration in

original). Instead, we urged sentencing courts “to take a realistic, economic approach to determine what losses the defendant truly caused or intended to cause, rather than the use of

some approach which does not reflect the monetary loss.” Id.

(internal quotation marks omitted). “[T]he objective under the

economic reality approach is to arrive at a fair assessment of

the loss the defendant actually inflicted or intended to inflict,

as contemplated by the guidelines.” United States v. Riley,

143 F.3d 1289, 1292 (9th Cir. 1998). 

[4] In light of our precedent, as well as the Eighth Circuit’s

recent decision in Holthaus, we decline to impose a mechanical limitation on intended loss as Letantia urges.6

 We will not

tie the sentencing court’s hands with such limitation because

we do not believe it would reflect the economic reality in

every bankruptcy fraud case. In the run-of-the-mill cases

where the debtor acts alone and his fraudulent activities consist solely of failing to disclose a concealed asset on the bankruptcy petition, limiting intended loss to either the value of

6The Third, Fifth, and Seventh Circuits have also declined to adopt such

a categorical limitation on intended loss. See, e.g., United States v. Feldman, 338 F.3d 212, 215-16 (3d Cir. 2003); United States v. Saacks, 131

F.3d 540, 542 (5th Cir. 1997); United States v. Mutuc, 349 F.3d 930, 936-

37 (7th Cir. 2003); United States v. Holland, 160 F.3d 377, 380-81 (7th

Cir. 1998). 

UNITED STATES v. BUSSELL 13275
the concealed assets or the debt discharged, whichever is less,

may well reflect economic realities. But in cases like the one

at bar, where a debtor, together with other co-conspirators,

engages in a lengthy, orchestrated scheme to defraud creditors

by filing a fraudulent bankruptcy petition, limiting the loss to

concealed assets or income will not always reflect economic

realities. Accordingly, declining to adopt a categorical rule,

we are unpersuaded that the district court erred by not limiting

intended loss in the complex bankruptcy fraud case to the

value of the concealed assets. 

B

Having concluded that the district court’s legal interpretation of the Sentencing Guidelines was correct, we now must

consider Letantia’s argument that the district court clearly

erred in its factual determination that the intended loss

equaled $3,057,927.09, the amount of debt scheduled to be

discharged in the bankruptcy.7“To be clearly erroneous,” we

have often repeated, “a decision must strike us more than just

maybe or probably wrong; it must . . . strike us as wrong with

the force of a five-week-old, unrefrigerated dead fish.” Hayes

v. Woodford, 301 F.3d 1054, 1067 n.8 (9th Cir. 2002) (internal quotation marks omitted). No such stench lingers here. 

[5] When determining intended loss, we must look to the

amount of loss that Letantia intended to cause her creditors.

Among other things, Letantia was convicted of conspiring8

7Because we reject Letantia’s claim that the district court was required

to limit intended loss to the value of concealed assets in this case, we need

not reach her subsequent arguments in that line of reasoning, including her

argument that the district court erred by not determining the subjective

value she placed on those assets. 

8Under U.S.S.G. § 1B1.3(a)(1)(B), the relevant conduct for a conspiracy

consists of “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” “In determining relevant conduct for sentencing purposes in a fraud case, a district court may

13276 UNITED STATES v. BUSSELL
with her husband and former lawyers from about June 1992

until February 1996, with the purpose of discharging her “outstanding debts including a substantial federal tax debt,

through filing bankruptcy . . . while maintaining control over

and access to (1) property concealed and transferred in the

preceding two years in contemplation of bankruptcy, and (2)

property of the bankruptcy estate, by means of fraud, concealment and misrepresentation.” The evidence establishes, and

Letantia admits in her briefs, that she began experiencing significant financial difficulties in 1992, and owed the IRS and

the California State Franchise Tax Board in excess of $1.2

million, and the FDIC, as the receiver for the Bank of Beverly

Hills, $787,500.00, as well as other substantial debts. The evidence also establishes that over the next several years Letantia

engaged her former lawyers to create a number of corporations in the name of nominee owners for the purposes of rerouting the profits from her medical practice, thereby giving

the appearance that she owned less assets and earned less

income, and moving various real estate holdings and disability payments to other corporations and an off-shore bank

account in the name of nominee owners. On March 7, 1995,

after the required period had elapsed to discharge the debt for

tax deficiencies, Letantia and John Bussell, together with their

former lawyers, filed for bankruptcy seeking to discharge debt

in the amount of $4,677,194.22. In light of all the facts and

circumstances, it cannot be said that the district court clearly

erred in finding that Letantia engaged in the conspiracy over

four years with the intent fraudulently to inflict a loss on her

creditors equal to the debts scheduled for discharge in bankruptcy. See Holland, 160 F.3d at 380-81. The strength of this

consider fraudulent conduct by the defendant other than that for which

evidence was offered at trial.” United States v. Munoz, 233 F.3d 1117,

1126 (9th Cir. 2000). “The district court is entitled to take into account all

relevant conduct, charged and uncharged, provided that the relevant conduct findings are supported by sufficient evidence. The caselaw is clear on

this point.” Id. at 1127. 

UNITED STATES v. BUSSELL 13277
evidence belies Letantia’s claim that she only intended a loss

of $85,000.00 to her creditors. See Saacks, 131 F.3d at 543.

C

We have one final sentencing matter to address. Letantia

alternatively argues that, because the government stipulated in

a plea agreement with co-conspirator Sherman that the highest

offense level was determined by using the Sentencing Guidelines relating to tax offenses, the government now should be

judicially estopped from arguing that the same conspiracy

involved a much greater loss for purposes of determining her

intended loss. We are unpersuaded by this argument. 

[6] First, judicial estoppel “is most commonly applied to

bar a party from making a factual assertion in a legal proceeding which directly contradicts an earlier assertion made in the

same proceeding or a prior one.” Russell v. Rolfs, 893 F.2d

1033, 1037 (9th Cir. 1990). The government has made no

such contradictory factual assertions in this case. The government simply stipulated in Sherman’s plea agreement to apply

U.S.S.G. §§ 2T1.1 and 2T4.1, which govern offenses involving taxation, rather than U.S.S.G. § 2F1.1, which governs

offenses involving fraud which would otherwise apply in

Letantia’s case. The government was free to stipulate with

Sherman in a separate case involving different charges which

Sentencing Guidelines provisions would apply to Sherman. 

Moreover, we held in United States v. Taylor, 991 F.2d 533

(9th Cir. 1991), “that a disparity in sentencing among codefendants is not, by itself, a sufficient ground for attacking

an otherwise proper sentence under the guidelines. Rather, a

defendant can only challenge his sentence by showing that it

was the result of incorrect or inadmissible information, or an

incorrect application of the Sentencing Guidelines.” Id. at 536

(citation and internal quotation marks omitted). 

[7] We therefore reject as unpersuasive Letantia’s final

challenge to the district court’s determination of intended loss

13278 UNITED STATES v. BUSSELL
based on principles of judicial estoppel. Because the district

court’s determination of intended loss was not erroneous, we

affirm Letantia’s sentence. 

III

We next consider Letantia’s argument that the district

court’s restitution order of $2,284,172.87, the amount of debt

actually discharged minus payments by her co-conspirator,

was excessive.9

[8] In its first restitution order, the district court ordered

Bussell, jointly and severally with co-conspirators Beaudry

and Sherman, to pay restitution in the amount of

$2,393,527.00, which consisted of the debt actually discharged in the bankruptcy proceedings, $2,293,527.09,10 plus

$100,000.00 that John Bussell had agreed to pay in the settlement of related litigation in 2002. In Bussell I, we held that

the amount of restitution under the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663(a), which applies to

this case, is “limited by the victim’s actual loss.” Bussell I,

414 F.3d at 1061 (internal quotation marks omitted). Concluding that the district court “ordered restitution in an amount

that, but for an adjustment for a settled debt, was equal to the

amount of intended losses,” we “vacate[d] the order of restitution and remand[ed] to the district court to determine the

9We review de novo the district court’s valuation methodology. See

United States v. Lomow, 266 F.3d 1013, 1020 (9th Cir. 2001). We also

review de novo the legality of a restitution award, but if the order is within

the statutory bounds, we review the amount for abuse of discretion. See

United States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004); see also

United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004). A district

court’s factual findings supporting a restitution order, however, are

reviewed for clear error. See United States v. Hackett, 311 F.3d 989, 991

(9th Cir. 2002). 

10This amount represents the debts schedule for discharge of

$3,057,927.09, less $764,400.00 debt to Provident, which was not discharged due to a pending adversary proceeding. 

UNITED STATES v. BUSSELL 13279
actual losses caused by Letantia’s fraudulent conduct—that is,

to compare ‘what actually happened with what would have

happened if [she] had acted lawfully.’ ” Id. (third alteration in

original) (quoting Feldman, 338 F.3d at 220-21). 

Following remand, the district court ordered Letantia to pay

restitution in the amount of $2,284,172.87, which consisted of

the debt actually discharged in the bankruptcy proceedings,

$2,293,527.09, minus the amount co-conspirator Sherman had

already paid, $9,354.22. 

A

Letantia first attacks the restitution order on the ground that

the district court failed to apply the proper analysis on

remand, as instructed in Bussell I. We disagree. 

Under the VWPA, the district court may order restitution

for criminal offenses committed prior to 1996. Bussell I, 414

F.3d at 1061. In considering restitution, the district court must

take into account: “(I) the amount of the loss sustained by

each victim as a result of the offense; and (II) the financial

resources of the defendant, the financial needs and earning

ability of the defendant and the defendant’s dependents, and

such other factors as the court deems appropriate.” 18 U.S.C.

§ 3663(a)(1)(B)(i). We emphasized in Bussell I that the

amount of restitution under the VWPA is limited to the victim’s actual losses. 414 F.3d at 1061. 

[9] Because “[r]estitution can only include losses directly

resulting from a defendant’s offense,” “a restitution order

must be based on losses directly resulting from the defendant’s criminal conduct.” Stoddard, 150 F.3d at 1147 (citations and internal quotation marks omitted). As we also

explained in Bussell I, actual loss for restitution purposes is

determined by comparing “ ‘what actually happened with

what would have happened if [the defendant] had acted lawfully.’ ” 414 F.3d at 1061 (quoting Feldman, 338 F.3d at 220-

13280 UNITED STATES v. BUSSELL
21). Actual loss in this case equals the excess, if any, of (1)

the loss the bankruptcy creditors incurred because of the

unlawful conduct, over (2) the loss the creditors would have

incurred had Letantia acted lawfully. 

The district court concluded on remand that had Letantia

acted lawfully by not engaging in a conspiracy to conceal substantial assets and income leading up to the filing of the bankruptcy petition, and had she made full and complete

disclosure of her financial affairs at the time of filing the

bankruptcy petition, she would not have had $2,293,527.09 of

debt discharged in bankruptcy. Accordingly, the district court

concluded that the actual loss equaled that amount. This conclusion was obviously grounded in the district court’s adoption of the 2002 presentence report’s (“PSR”) factual finding

that the value of Letantia’s concealed assets exceeded the debt

scheduled to be discharged. 

The PSR calculated Letantia’s assets and debts as of March

7, 1995, when she filed for bankruptcy. The PSR listed concealed assets as:

[the Bussells’] interests in BBL and Beverly Hills

Medical or the Sanwa Bank account, the true amount

of J. Bussell’s disability income, consulting fees, and

rental income, the true market value of their interest

in the Stein Eriksen condominium, and their interest

in UHL and Magnum. The Bussells did not list any

ownership interest in two parcels of farm land in San

Diego and a Palm Springs condominium. 

The PSR then valued the concealed assets at between

$2,849,835.00 and $3,356,835.00.11 In their bankruptcy peti11Though Letantia objected to the PSR’s valuation of her assets, the district court overruled the objection except in relation to the debts not discharged in bankruptcy, which do not affect the value of the concealed

assets. 

UNITED STATES v. BUSSELL 13281
tion, the Bussells reported the total value of their assets to be

$1,783,026.30. Combining the concealed and reported assets,

the PSR concluded, and the district court accepted, that “[a]t

the time they filed their bankruptcy petition, the combined

value of all of the Bussells’ assets exceeded their total debt.”

We are persuaded that the district court adequately stated

and explained its resolution of the disputed issue as to the

value of the concealed assets pursuant to Fed. R. Crim. P. 32

and thereby adopted the factual findings provided in the PSR.

See United States v. Karterman, 60 F.3d 576, 583 (9th Cir.

1995); see also United States v. Cannizzaro, 871 F.2d 809,

811 (9th Cir. 1989). In its tentative ruling at the initial sentencing, the district court rejected Letantia’s objections to the

PSR’s calculation of her assets, finding that “[t]he PSR recites

the evidence and other factual matters substantially accurately.” In its tentative ruling on post-remand proceedings, the

district court found that “[h]ere, the government has demonstrated by a preponderance of the evidence that the defendant

caused actual loss in the amount of $2,293,257.09 as a result

of her conspiracy conviction in Count One. Had the defendant

acted lawfully, she would not have conspired in three years of

pre-bankruptcy tax planning so that she and her spouse could

conceal substantial income and assets to obtain a fraudulent

discharge of their debts.” Moreover, at oral argument on postremand proceedings, the district court declined defense counsel’s offer to examine the alleged value of the concealed

assets, concluding that “the papers are fairly—very clear

about what are the fees to account even if you add in the

condo in Palm Springs and Farms and all the rest” and that

“the various possible formulae are included in the papers.” 

[10] In light of the district court’s adoption of the factual

findings in the PSR, we are unpersuaded that the district court

clearly erred in finding that the value of the assets exceeded

the debts to be discharged and therefore the actual loss to the

creditors equaled the amount of debt actually discharged in

13282 UNITED STATES v. BUSSELL
the bankruptcy. Letantia’s arguments to the contrary are without merit.

B

Letantia argues that the district court erred by not limiting

the actual loss to the amount concealed in two bank accounts

in the name of BBL and Beverly Hills Medical, two companies held in the name of nominee owners. Letantia was

charged with and convicted for conspiring to conceal three

specific assets: (1) her “beneficial ownership interest” in

BBL, including BBL’s bank account with a balance of

$949,048.00; (2) her “beneficial ownership interest” in Beverly Hills Medical, including Beverly Hills Medical’s bank

account with a balance of $5,787.00; and (3) her equity interest in the Utah condominium. She was also charged and convicted of the substantive offense of concealing her “beneficial

ownership interest” in BBL and Beverly Hills Medical, but

she was acquitted of the substantive offense of concealing her

equity interest in the Utah condominium. Letantia contends

that the district court erred by considering concealed assets

beyond the two assets in which she was indicted and convicted of concealing. 

Letantia relies on Hughey v. United States, 495 U.S. 411

(1990), where the Supreme Court interpreted the VWPA and

reversed an order that required the defendant to pay restitution

for counts other than the counts of conviction. The Court held

that “the language and structure of the Act make plain Congress’ intent to authorize an award of restitution only for the

loss caused by the specific conduct that is the basis of the

offense of conviction.” Id. at 420. But that decision is of no

avail to Letantia because, after Hughey was decided, Congress

amended the VWPA by expanding the definition of “victim,”

in part to overrule that decision.12

12Letantia’s reliance on the Seventh Circuit’s decision in United States

v. Kane, 944 F.2d 1406 (7th Cir. 1991), is similarly misplaced because the

acts in that case occurred well before the effective date of this amendment

to the VWPA. See United States v. Rutgard, 116 F.3d 1270, 1294 (9th Cir.

1997). 

UNITED STATES v. BUSSELL 13283
[11] Section 3663(a)(2) of the VWPA now provides that

“[f]or purposes of restitution, a victim of an offense that

involves as an element a scheme, a conspiracy, or a pattern of

criminal activity means any person directly harmed by the

defendant’s criminal conduct in the course of the scheme,

conspiracy, or pattern.” 18 U.S.C. § 3663(a)(2) (emphasis

added). As we have explained, “[u]nder the amended statute,

when someone is convicted of a crime that includes a scheme,

conspiracy, or pattern of criminal activity as an element of the

offense, the court can order restitution for losses resulting

from any conduct that was part of the scheme, conspiracy, or

pattern of criminal activity. For instance, if someone is convicted of a conspiracy, the court can order restitution for damage resulting from any conduct that was part of the conspiracy

and not just from specific conduct that met the overt act

requirement of the conspiracy conviction.” United States v.

Reed, 80 F.3d 1419, 1423 (9th Cir. 1996). 

[12] Accordingly, because Letantia was convicted of a

crime that included a conspiracy “as an element of the

offense,” the district court did not err in considering all of the

concealed assets for purposes of determining the actual loss

to the bankruptcy creditors.13

C

[13] Letantia next contends that the district court erred by

ordering any restitution because the IRS was the only creditor

that would have received funds from the two concealed bank

accounts with a purported net value of $85,000.00, and the

IRS had since collected the full amount of the debt it was

owed from forfeiture proceedings. We find this argument

13Because we conclude that the district court did not err in considering

concealed assets other than the two bank accounts, we reject Letantia’s

argument that the amount of restitution should not exceed $85,000.00, the

purported net value of those bank accounts to the creditors after deducting

taxes, administrative expenses, and various exemptions. See supra note 5.

13284 UNITED STATES v. BUSSELL
without merit. For one thing, because this case involved conspiracy, the district court was not limited under the VWPA to

considering only the value of the two concealed bank

accounts, as discussed above. Moreover, the record establishes that at the time of Letantia’s sentencing, she was still

contesting the IRS’s right to maintain possession of these collected proceeds in U.S. Tax Court proceedings. Because the

IRS’s right to these funds was still subject to litigation at the

time of sentencing, Letantia’s argument that the district court

erred in ordering any restitution fails.14

D

In sum, we are not persuaded that the district court clearly

erred in finding that, had Letantia acted lawfully, the value of

the assets exceeded the debts to be discharged and therefore

the actual loss to the creditors equaled the amount of debt

actually discharged in the bankruptcy.15

14We are equally unpersuaded, however, by the government’s argument

that Letantia is entitled to no credit toward restitution for the forfeited

assets when the dispute is resolved. Most importantly, the district court’s

restitution order expressly provides that “[a]ny compensation that a victim

receives from other sources, including forfeited funds and funds resulting

from foreclosure on any relevant IRS liens, shall be counted toward satisfaction of the amount owed in restitution.” (emphasis added.) And the

government failed to cross appeal that restitution order. Moreover, the

government’s reliance on United States v. Bright, 353 F.3d 1114 (9th Cir.

2004), for the contrary proposition is misplaced, as that case involved the

Mandatory Victim and Witness Protection Act of 1996, which the government recognizes is inapplicable in this case. See United States v. Doe, 374

F.3d 851, 856 (9th Cir. 2004). The government cites no other authority in

opposition. 

15Letantia requested that we take judicial notices of the Criminal Minutes, Tentative Ruling on Sentencing, and Judgment and Probation Order

in the court proceedings of co-conspirator Beaudry. We grant the request

for judicial notice. See Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.

1995). We, however, reject Letantia’s related argument that the district

court erred in not ordering co-conspirator Beaudry to pay restitution pursuant to the Mandatory Victim and Restitution Act, 18 U.S.C. § 3663A,

since that section does not apply to Title 26 offenses, which were the sole

offenses to which Beaudry pleaded guilty. See 18 U.S.C. § 3663A(a)(1),

(c)(1). 

UNITED STATES v. BUSSELL 13285
IV

We next consider Letantia’s argument that the district court

erred by awarding prosecution costs in the amount of

$55,626.09. 

In count 12 of the indictment, Letantia was charged with

willfully attempting to evade the payment of income tax for

the tax years 1983, 1984, 1986, and 1987, in violation of 26

U.S.C. § 7201.16 Initially, the government requested prosecution costs in the amount of $62,614.37, pursuant to 26 U.S.C.

§ 7201. The district court declined to allocate costs among

counts, opting instead to assess them in their entirety. In Bussell I, we vacated and remanded the order for prosecution

costs, explaining that “the government cannot assess against

a defendant costs associated exclusively with the counts on

which he was acquitted.” 414 F.3d at 1061 (emphasis added).

On remand, the district court found that certain costs were

associated exclusively with counts on which Letantia was

acquitted, or not shown to be necessary for a conviction on

count 12. Ordering Letantia to pay costs of prosecution in the

amount of $55,626.09, the district court expressly excluded

certain costs associated with (1) the grand jury transcripts, (2)

pretrial and post-trial transcripts, (3) and several witnesses. 

[14] In this appeal, Letantia again challenges the district

court’s factual finding that the remaining costs were not reasonable and necessary for the prosecution of count 12. We are

unpersuaded by Letantia’s argument. We have not adopted a

“reasonable and necessary” standard upon which Letantia

relies for the purposes of reviewing prosecution costs assessed

16Section 7201 provides that “[a]ny person who willfully attempts in

any manner to evade or defeat any tax imposed by this title or the payment

thereof shall, in addition to other penalties provided by law, be guilty of

a felony and, upon conviction thereof, shall be fined not more than

$100,000 ($500,000 in the case of a corporation), or imprisoned not more

than 5 years, or both, together with the costs of prosecution.” 26 U.S.C.

§ 7201 (emphasis added). 

13286 UNITED STATES v. BUSSELL
against a defendant. Rather, in United States v. Fowler, 794

F.2d 1446 (9th Cir. 1986), we held that the government cannot assess costs “associated exclusively with the unsuccessful

prosecution of [a co-defendant] or his acquittal on [other

counts].” Id. at 1450 (emphasis in original). We followed that

approach in Bussell I. 414 F.3d at 106. The district court

found on remand that the costs assessed against Letantia were

not associated exclusively with the counts in which she was

acquitted. Because Letantia presents us with no persuasive

evidence to dispute the district court’s finding, we affirm the

district court’s order of prosecution costs. 

V

We have one final issue to consider. Pursuant to Fed. R.

Crim. P. 38, the district court stayed the 2002 order that

Letantia pay a fine, restitution, and prosecution costs, on the

condition that two trust deeds be recorded as security against

property owned by L.T.K. Irrevocable Trust. In Bussell I, we

vacated the district court’s 2002 order. 414 F.3d at 1061. On

remand, Letantia requested that the district court direct the

court clerk to reconvey the trust deeds. The district court

deferred consideration of the application for reconveyance of

the trust deeds. Subsequently, based on its decision to enter a

new order imposing restitution, prosecution costs, and a criminal fine on remand, the district court denied the application.

Letantia now argues that the district court erred by denying

such application for reconveyance. 

Trust deeds are generally creatures of state law, and, in California, they operate as a conveyance of real property to

secure payment of debt. See, e.g., Domarad v. Fisher &

Burke, Inc., 270 Cal. App. 2d 543, 553-54 (1969). In this

case, the trust deeds expressly provided that such deeds were

being conveyed as security under Fed. R. Crim. P. 38 for the

criminal fine, costs of prosecution, and restitution judgment

entered against Letantia in 2002. Pursuant to Cal. Civ. Code

§ 2941(b)(1), “after the obligation secured by any deed of

UNITED STATES v. BUSSELL 13287
trust has been satisfied, the beneficiary or the assignee of the

beneficiary shall execute and deliver to the trustee the original

note, deed of trust, request for a full reconveyance, and other

documents as may be necessary to reconvey, or cause to be

reconveyed, the deed of trust.” 

[15] We are therefore persuaded that the trust deeds in this

case should have been reconveyed to the trustee of the L.T.K.

Irrevocable Trust (not Bussell) upon the vacatur of the 2002

order for prosecution costs and restitution. The government

offers no authority in opposition, and its arguments to the

contrary are ultimately unavailing. We note, however, that the

district court’s post-remand order for restitution and prosecution costs survives the challenges Letantia launches in this

appeal and, pursuant to Fed. R. Crim. P. 38(e)(2), the district

court “may issue any order reasonably necessary to ensure

compliance with a restitution order or a notice order after disposition of an appeal, including . . . (C) an order requiring the

defendant to deposit all or part of any monetary restitution

into the district court’s registry; or (D) an order requiring the

defendant to post a bond.” Accordingly, we must reverse the

district court’s denial of Letantia’s application for reconveyance of the trust deeds that attached to the now vacated 2002

order for restitution and prosecution costs, and remand for

appropriate proceedings. 

VI

For the foregoing reasons, we affirm Letantia’s sentence

and the order for restitution and prosecution costs. We

reverse, however, the district court’s denial of the application

for reconveyance of the trust deeds. 

AFFIRMED IN PART; REVERSED IN PART; and

REMANDED. 

13288 UNITED STATES v. BUSSELL