* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 4 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee/ Cross-Appellant, Nos. 98-2169 and 98-2205

v. (D. New Mexico) MITCHELL BROWN,

Defendant - Appellant/ Cross-Appellee. (D.C. No. CR-96-514-MV)

ORDER AND JUDGMENT *

Before ANDERSON , TACHA , and BALDOCK , Circuit Judges.

Mitchell Brown was convicted by a jury on four counts: (1) concealing assets from the bankruptcy court, in violation of 1 8 U.S.C. § 152 (Count IV); (2) concealing assets from the FDIC, in violation of 18 U.S.C. § 1032 (Count I); (3) inviting the FDIC to rely on his false statements, in violation of 18 U.S.C. § 1007 (Count II); and (4) conspiring to invite the FDIC t o rely on his false statements, in-2-

violation of 18 U.S.C. § 371 (Count V). He challen ges each of his convictions on numerous grounds. He argues that Counts I, II, andV of the indictment were defective. He also challenges the sufficiency of t he evidence supporting his convictions. Finally, he contends that the jury wa s improperly instructed as to all four counts. On cross-appeal, the government conte sts the district court’s finding at sentencing that no loss occurred. We reject eac h of these arguments for the reasons below, and affirm Brown’s convictions and s entence.

I. BACKGROUND Mitchell Brown (Brown) and his wife, Joyce Brown, w ere indicted together, but Brown was tried separately. Brown’s convictions center around three properties in which, according to the governm ent’s case at trial, he retained an interest which he concealed from the bankruptcy court and later the FDIC. These properties are (1) Brown’s residence at 55 Ranch Road, Marin County, California (the residence); (2) the Elan Fitness Ce nter, located in San Anselmo, California (the fitness center); and (3) the New Me xico Land Company (NMLC), a New Mexico corporation. The jury returned specia l verdicts as to Counts I and IV, determining that Brown concealed from both the FDIC and the bankruptcy court an interest in each of the three properties. As to Counts II and V it rendered general verdicts.-3-

The parties presented extensive evidence at trial, only some of which is detailed here. Many of the facts relevant to this appeal are uncontested. Mitchell and Joyce Brown were married in 1980, following the execution of a valid prenuptial agreement in which they agreed to hold a ll property as separate property. Brown filed for bankruptcy on March 30, 1987. In 1990, the FDIC obtained a judgment against Brown for approximately$2.4 million, based on an October 1984 real estate transaction. The bankrupt cy court held this debt was nondischargeable. Brown owned the Ranch Road residence as his separat e property beginning in March 1979, and the Browns have resided there co ntinuously during their marriage. In 1986, Citicorp, which held the mortga ge on the residence, foreclosed and obtained an eviction order. Brown a sked Paul Kahn to purchase the house from Citicorp. Brown arranged the financ ing and took care of all the paperwork. Kahn signed the mortgage, and Joyce Bro wn paid $3000 per month to Kahn for the Browns to stay in the house. These payments were designated rent, but Kahn made no money from the arrangement because the monthly payments were only enough to cover amounts due under the mortgage. In January 1988, Kahn, who was going through a divorce, sold the hou se for $10 to the Anthony Brown Trust (ABT), created in favor of the Browns’ minor son. Joyce Brown was-4-

the sole trustee of the trust. As part of the tran saction, the trust assumed the outstanding mortgage. Elan Fitness Center, formerly known as Omni Fitness and Health, was purchased in 1984 by Marin Financial Corporation, an entity owned by Brown. On April 1, 1985, Brown transferred the fitness center to his wife, who since then has managed the business. The parties disagree con cerning the terms and the ultimate efficacy of the transfer. Brown Land Company (BLC), the predecessor corporati on of NMLC, was organized in 1979 by Brown. Originally, Brown, his mother, and his sister owned BLC’s stock in equal thirds. In September 1985, Br own transferred his stock into the Anthony Mitchell Brown Living Trust (AMBLT), wi th Joyce Brown as trustee. In April 1987, Robert Janes, Brown’s atto rney, organized the NMLC, which took over the assets of the BLC. In 1989 and 1990, Joyce Brown, both individually and as trustee for ABT, paid $45,000 t o NMLC. During the same period, NMLC paid for Brown’s attorney’s fees. Bro wn’s mother, paying for repair work Brown did on her house, had checks for the work made out to NMLC. The government contends that NMLC was Brown’s “piggy bank,” Appellee’s Br. at 33; Brown insists that he was an employee of NML C and that NMLC paid only legitimate business expenses.-5-

Following entry of judgment against Brown in 1990 i n favor of the FDIC, the FDIC attempted to identify assets that might satisfy the judgment. It deposed Brown on July 19, 1991, for that purpose. Brown te stified that a trust owned the residence, that his wife owned the fitness center, and that he received only expense reimbursements from NMLC (he testified thathe was also entitled to 20% of profits but that there had been none). The FDIC also obtained Brown’s bankruptcy filings in the course of its investigati on. The FDIC subsequently settled its $2.4 million judgment for $10,000.

II. DISCUSSION A. Challenges to Indictment Brown challenges his indictment on various grounds. First, he argues that Counts I, II, and V of the indictment were insuffic ient. In general, an indictment is constitutionally sufficient if it (1) alleges al l the essential elements of the offense, (2) provides the defendant notice of the c harge against him, and (3) is specific enough to provide double jeopardy protection. See United States v. Dashney , 117 F.3d 1197, 1205 (10th Cir. 1997). Brown argu es that the first two of these requirements were not met as to Count I, b ecause it did not specify which assets he allegedly concealed from the FDIC. He al so makes the same arguments1 We note that Brown’s appellate counsel did not repr esent him at trial. -6- as to Counts II and V, claiming that the governmentwas required to specify in the indictment which allegedly false statements he made to the FDIC. “Defenses and objections based on defects in the in dictment or information (other than that it fails to show jurisdiction in t he court or to charge an offense)” must be raised by motion prior to trial. Fed. R. Crim. P. 12(b)(2), 12(f); see, e.g. , United States v. Freeman , 813 F.2d 303, 304 (10th Cir. 1987). Although Bro wn did request additional details regarding Counts I a nd II by moving for a bill of particulars prior to trial, he never challenged the legal sufficiency of these counts, such as by a motion to dismiss. Therefore he has w aived all challenges to the sufficiency of these counts, save only the claim th at they fail to charge an offense. 1 Cognizant of this waiver rule, Brown attempts to ca st his arguments in the terms of the exception. At root, however, by argui ng that the indictment should have specified the false statements and assets at i ssue, Brown is not really claiming that Counts I and II do not charge offense s, i.e., that some essential elements of the crimes were not alleged as a matterof law. He is merely arguing that those elements should have been alleged with m ore factual specificity. Such claims cannot be raised for the first time at this late date. See United States v.
Brown , 164 F.3d 518, 521 & n.3 (10th Cir. 1998) (evaluat ing challenge to-7-

jurisdiction, but refusing to reach challenge to specificity of indictment not raised at trial); Bennett v. United States , 252 F.2d 97, 98 (10th Cir. 1958) (applying Rule 12(b)(2) to bar claim that indictment lacked sufficient detail); see also, e.g. , United States v. Freeman , 619 F.2d 1112, 1118 (5th Cir. 1980) (“Appellants' contention that the indictment lacked the specifici ty required by the sixth amendment was waived by their failure to object before trial.”) (citing United
States v. Varner , 437 F.2d 1195, 1197 (5th Cir. 1971)). Brown also challenges Count V on duplicity grounds, arguing that the district court erred in allowing the prosecution an election. Count V alleged a conspiracy (a) to make false statements to the FDIC and (b) to conceal assets from the FDIC. After a duplicity challenge by Brow n prior to trial, the court forced the prosecution to choose which conspiracy t o present to the jury, and the prosecution chose the false statements conspiracy. Such a forced election was entirely proper, and sufficed to cure any duplicity. See United States v. Trammell , 133 F.3d 1343, 1354-55 (10th Cir. 1998) (approvin g use of unanimity instruction to cure duplicity); United States v. Henry , 504 F.2d 1335, 1338 (10th Cir. 1974) (“The proper way to attack a duplicitous indictment is by a motion to elect.”). We therefore reject Brown’s challenges t o his indictment.-8-

B. Sufficiency of the Evidence Brown appeals the denial of his motion for a judgme nt of acquittal on each count of his indictment. Thus, he challenges the s ufficiency of the evidence supporting each of his convictions. See United States v. Willis , 102 F.3d 1078, 1083 (10th Cir. 1996). In reviewing these claims, we “look at all the evidence, both direct and circumstantial, together with the r easonable inferences to be drawn therefrom in a light most favorable to the go vernment to determine whether a reasonable jury could find the defendant guilty b eyond a reasonable doubt.” United States v. Levine , 970 F.2d 681, 684-85 (10th Cir. 1992). First, as to Count IV, Brown claims the government did not show that the assets Brown allegedly concealed were part of his b ankruptcy estate. The statute, 18 U.S.C. § 152(1), prohibits “knowingly and fraudu lently conceal[ing] . . . any property belonging to the estate of a debtor” from the United States Trustee or other bankruptcy court officers. Property of a deb tor’s bankruptcy estate is broadly defined in 11 U.S.C. § 541(a)(1) to include (with limited exceptions not applicable here) “all legal or equitable interests of the debtor in property as of the commencement of the case.” Therefore we are concer ned with whether a rational juror could have found beyond a reasonable doubt th at on March 30, 1987, Brown had a legal or equitable interest in any of the thr ee properties at issue here.-9-

Brown argues that he had no such interest in the pr operties as of March 30, 1987. He states that the fitness center belonged t o his wife, that the residence was in Kahn’s name, and that NMLC did not yet exist . However, that Brown may not have held legal title to any of these assets on the date in question is not determinative. “[E]quitable interests of the debto r,” “wherever located and by whomever held,” must be disclosed. 11 U.S.C. § 541(a)(1); see, e.g. United States v. Moynagh , 566 F.2d 799, 803 (1st Cir. 1977) (finding equitable interest where debtor had, prior to filing, transferred boat s to corporation owned by debtor’s mother and son). “[T]he issue of just what interests are ‘equitable’ interests in property” is “a question of fact for t he jury.” 1 Lawrence P. King, Collier on Bankruptcy ¶ 7.02[1][a], 7-30 & n.42 (15th ed. rev. 1999) (ci ting cases so holding). There was sufficient evidence to support the conclu sion that Brown held an equitable interest in at least the residence, which is enough for us to uphold his conviction on Count IV. A rational juror could rea sonably infer from the testimony of Paul Kahn that Kahn was acting only as nominee title holder, and that both he and the Browns understood that the Bro wns were to retain de facto ownership of the residence. Kahn “didn’t put up any dollars” for the purchase, and “the entire mortgage” was financed by Brown’s c ontacts at Southern Bankers Mortgage Corporation (because the house was worth m uch more than the-10-

$265,000 sale price). R. Vol. XIX at 879, 881. Ka hn testified, “I felt that, you know, that I’d like to help him as long as, you kno w, I didn’t lose any money in the proposition. . . . [A]nd frankly, . . . I didn’ t want to make any money on the proposition. I wanted to help a friend who was in trouble . . . .” Id. at 883. He told Brown “that I was willing to do this as long a s I could do it and not be financially harmed and that I did not want to make any money on it.” Id. The lease terms between Joyce Brown and Kahn were craft ed to accomplish this zeroprofit, zero-loss goal. There was evidence that atleast some of the money paid to Kahn for rent came from Brown (and not his wife), t hrough companies Brown controlled. See, e.g. , R. Vol. XXII at 1478 (indicating that Brown signe d a check on August 10, 1987, for $3,000, made out to Paul Kahn, with the memo “house payment”). When Kahn went through a divorce in 198 7, Kahn “asked Mitch [Brown] to find some other way of dealing with the property, or find another buyer or I would have to sell the property.” R. Vol. XIX at 914. So the Anthony Brown Trust “was set up to purchase the 55 Ranch Ro ad property from Paul Kahn.” Appellant’s Br. at 7 n.2. Kahn testified, “again, under my premise, which was I didn’t want to make any money and I didn’t wa nt to get harmed, I sold it back to them for—I sold it back to the trust for $1 0 subject to the liens, meaning they had to assume the mortgage obligations and anything else on the property.” R. Vol. XIX at 913. This sale was consummated only months af ter Brown-11-

declared bankruptcy. Kahn, who had spent time as areal estate developer, believed at the time that the house was actually worth in excess of $400,000. Id. at 915. When, after the sale, Kahn determined thathe owed approximately $5000 in taxes on the sale, he asked the Browns to pay that amount, which they did. Id.
at 924-26. This circumstantial evidence supports the inference that Brown retained an interest which he was required to disclose to the bankruptcy court. Cf. United States v. Edwards , 905 F. Supp. 45, 48-49 (D. Mass. 1995) (“The Gove rnment was . . . entitled to . . . prove by circumstantial evidence that the conveyance was a sham transaction, that Edwards retained an equita ble interest in the condominium, and that Edwards committed a crime by failing to disclose it in his bankruptcy proceeding.”) The possibility that Brown’s interest was worthless or exempt, and was therefore of no value to creditors, is not crucial. “Debtors have an absolute duty to report whatever interests they hold in property, even if they believe their assets are worthless or are unavailable to the bankruptcy estate.” In re Yonikus , 974 F.2d 901, 904 (7th Cir. 1992). This is because “[a ]llowing debtors the discretion to not report exempt or worthless property usurps the role of the trustee, creditors, and the court by denying them the opportunity to re view the factual and legal-12-

basis of debtors’ claims.” Bensenville Community Ctr. Union v. Bailey (In re Bailey ), 147 B.R. 157, 163 (Bankr. N.D. Ill. 1992). Brown protests that his dealings with Kahn and the creation of the Anthony Brown Trust were of themselves perfectly legal. Th at may or may not be, but it does not absolve Brown of his duty to disclose the nature of these dealings to the Bankruptcy Court. Brown raises similar challenges to the evidence sup porting Counts I, II, and V. In essence, he argues that the government nevershowed that he had a legal interest in the three properties, and that therefor e he could not have (1) concealed, (2) lied about, or (3) conspired to lie about such an interest. We reject these arguments for similar reasons. It was sufficient f or the government to show that Brown concealed from the FDIC, lied to the FDIC abo ut, and conspired to lie to the FDIC about his equitable interest in the residence. Finally, Brown argues that the factual allegations in Counts I, II, and V were so vague as to “make[] it impossible to assess whether those facts have been proven by sufficient evidence.” Appellant’s Br. at38. This is essentially a recasting of his challenge to the specificity of th e indictment, which he has waived.2 The government seeks to distinguish Gaudinbecause it involved a

substantive false statements offense, not a conspir acy charge. The government’s unsupported arguments on this point are not persuas ive. -13- C. Jury Instructions Brown raises several challenges to the jury instruc tions given by the district court. As to Count V, Brown argues that the jury s hould have been required to find that the false statements alleged were materia l. He contends that the court erred when it instructed the jury that Brown’s bankruptcy declaration was material as a matter of law. Brown did not raise this issue before the district court. We agree with Brown that the court erred, on the authority of United States v. Gaudin , 515 U.S. 506 (1995) (holding that materiality ele ment of false statements offense must be decided by jury). 2 However, even assuming that this error was not harmless (which is by no means clear, see Neder v. United States , 119 S. Ct. 1827, 1999 WL 373186 (1999) (finding Gaudin error harmless)), we may correct such an error not raised at trial only if “the forf eited error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Johnson v. United States , 520 U.S. 461, 469 (1997) (internal quotes omitted); see also United States v. Schleibaum , 130 F.3d 947, 949 (10th Cir. 1997) (en banc) (app lying Johnson ); United States v. Clifton , 127 F.3d 969, 971-72 (10th Cir. 1997) (same). Not only does Brown not point to any particularizedunfairness resulting from the Gaudin error, but, more to the point, he does not argue o n appeal that the-14-

declaration in question was not material. See Johnson , 520 U.S. at 470 (“Materiality was essentially uncontroverted at tri al and has remained so on appeal.”); cf. Neder , 1999 WL 373186, at *11 (“Neder did not argue to the jury—and does not argue here—that his false stateme nts of income could be found immaterial.”). Thus, he has not made an adequate claim for relief. Brown also contends that the district court erred i n not instructing the jury that it was required to agree unanimously on each element o f each charged offense. Brown did not ask for such an instruction at trial, and he now claims the court’s failure to give such an instruction sua sponte was plain error. The court did give the following instruction: “To reach a verdict, wh ether it is guilty or not guilty, all of you must agree. Your verdict must be unanim ous on each count of the indictment.” R. Vol. XXVII at 2285. Such general unanimity instructions are presumptively sufficient in this circuit. See, e.g. , United States v. Linn , 31 F.3d 987, 991 (10th Cir. 1994). Brown has not shown that this case falls outside the presumptive rule. As to Counts II and V, Brown argues that the jury s hould have been instructed that in order to convict, it had to agre e unanimously on a particular false statement. Brown did not request such an ins truction at trial. Yet in each of the appellate cases cited by Brown requiring such a n instruction, the defendant had first requested and been denied such an instruction by the trial court. See-15-

United States v. Holley , 942 F.2d 916, 922 (5th Cir. 1991); United States v.
Duncan , 850 F.2d 1104, 1105 (6th Cir. 1988); United States v. Ferris , 719 F.2d 1405, 1406 (9th Cir. 1983). We have held that a di strict court’s failure to give such a factually specific unanimity instruction sua sponte is not plain error. See United States v. Smith , 13 F.3d 1421, 1427 (10th Cir. 1994). We therefor e reject Brown’s arguments on this point. Brown also argues that the jury was inadequately in structed on the legal principles necessary to render fair verdicts in thi s case. Again, he acknowledges not requesting at trial the instructions he now fav ors. We therefore review only for plain error. See United States v. Duran , 133 F.3d 1324, 1330 (10th Cir. 1998). For Brown to prevail, he must show that the court gave obviously erroneous instructions that, considered as a whole, misled the jury and affected his substantial rights. See id. Brown claims that the district court should have in structed the jury sua sponte on various principles of California law, inc luding the effect of prenuptial agreements, the writing requirement of the Statute of Frauds, and the elements of fraudulent transfers. He argues that if the jury h ad received such instructions, it would have concluded that he had no interest in any of the assets at issue. We think an instruction on the Statute of Frauds’ writ ing requirement was not appropriate, much less required to be given sua spo nte. The absence of a written-16-

agreement between Brown and Kahn did not preclude afinding of guilt, as we have explained above regarding equitable interests. And although it appears that instructions on fraudulent transfers and prenuptial agreements may have been relevant and helpful in some degree, we do not thin k the lack of such instructions misled the jury, viewing the instructions as a whol e. Brown argues that the district court’s definition o f “estate of a debtor” was confusing and prejudicial as to Count IV. He cites the court’s statement that a bankruptcy estate “may also be used to mean property acquired after the commencement of the proceeding,” R. Vol. XXVII at 2 201, and argues that the jury was never instructed that after-acquired prope rty is included only if it is the proceeds of estate property. As the government correctly notes, however, the issue of after-acquired property was relevant to on ly one of the three properties listed in Count IV (NMLC), and the jury rendered sp ecial verdicts on each of the three properties. Thus, even assuming that the jury misunderstood or misapplied the law regarding after-acquired properties, its er ror affected only one of three independently sufficient grounds for a conviction on Count IV. For these reasons, the district court committed no reversible error by not giving jury instructions that Brown did not requestat trial.-17-

D. Cross-Appeal: Loss Level at Sentencing The government contests the district court’s determ ination that Brown’s sentence should not be enhanced under USSG § 2F1.1, which increases a fraud defendant’s offense level for offenses involving ei ther an actual or intended loss in excess of $2,000. See USSG § 2F1.1(b) & comment. (n.7). We review the district court's legal interpretation of § 2F1.1 de novo, and review its findings of fact on the issue of loss for clear error, giving d ue deference to its application of the guidelines to the facts. See United States v. Janusz , 135 F.3d 1319, 1324 (10th Cir. 1998). The government has the burden of proving loss by th e preponderance of the evidence. See United States v. Reddeck , 22 F.3d 1504, 1512 (10th Cir. 1994). The district court determined that the government had not met its burden. The government’s primary argument was that loss should be measured by the entire amount of the judgment the FDIC settled ($2.4 milli on), which would result in a 12-point increase in offense level. The court disa greed and instead analyzed loss in terms of the value of the three concealed assets , both at the time of Brown’s bankruptcy filing and at the time of his settlementagreement with the FDIC. On this analysis, it found that the government had fai led to prove any loss because (a) there was no showing that the Anthony Brown Trust w as invalid, or that the residence was transferred fraudulently, and in any event, at the time of the-18-

bankruptcy there was no equity in the residence; (b ) Brown retained no ownership interest in the fitness center; and (c) NMLC did no t exist at the time the bankruptcy was filed, and there was “a failure of p roof in terms of the value of New Mexico Land Company that can be attributed to M r. Brown” at the time of the settlement agreement. R. Vol. XIV at 147. On appeal, the government again focuses almost its entire argument on the claim that loss should be measured by the $2.4 mill ion judgment, reasoning that Brown intended such a loss by fraudulently inducing the FDIC to settle its judgment. We note that the $2.4 million judgment a gainst Brown apparently resulted from conduct unrelated to the offense here (the government does not argue otherwise). That is, although at some point Brown did something that ended in his owing the FDIC $2.4 million, that is n ot this case. The question here is what loss Brown intended to cause the FDIC by co ncealing and lying about three specific assets that might satisfy the judgme nt to some extent. We emphasize that the government does not argue that actual loss amounts to $2.4 million; it bases its entire argument here on intended loss. Yet as a matter of law in this circuit, intended loss “cannot excee d the loss a defendant in fact could have occasioned if his or her fraud had been entirely successful.” United States v. Santiago , 977 F.2d 517, 524 (10th Cir. 1992). Thus, “the fair market-19-

value of what a defendant has taken or attempted to take defines the upper limit for loss valuation under Guidelines § 2F1.1.” Id. at 525. The government essentially takes the position that the property “taken” by Brown was the $2.4 million judgment, not just the p roperties he concealed. This attempted distinction misses the point. In circums tances like these, a judgment’s fair market value is bounded by the worth of the as sets sought in satisfaction of the judgment. The most the government can claim is that Brown intended to prevent it from realizing the value of the conceale d assets. Therefore the only relevant measure of intended loss is the value of t hose assets. The government argues alternatively that Brown gained $2.4 million by inducing the FDIC to settle its judgment. First of all, for the reasons above, it does not necessarily follow that Brown actually gai ned that amount. But more to the point, a defendant’s gain may be used only as a n “alternative estimate” of actual or intended loss. USSG § 2F1.1 comment. (n.8). The issue posed by the government’s arguments on the question of loss is n ot difficulty of measurement, but what to measure. For the reasons above, we thi nk the district court was correct to look only at the value of the three asse ts concealed. Having expended its energy arguing for a loss of $2 .4 million, the government makes little effort to argue for any oth er measure of loss. The government’s only other argument on appeal is that the district court’s findings-20-

are clearly erroneous because they impermissibly co nflict with the jury’s guilty verdicts. This claim is made in the most summary f ashion, with only a cursory discussion of the alleged conflict, and without any citation to authority. The government concedes that “loss is not a require d element” of any of the crimes for which Brown was convicted, Appellee’s Br . at 57, and therefore the jury was never asked to determine the issue. For example, as to Count IV, the government argued to the jury as follows: [Brown] wanted to keep the house, an admirable goal , so long as it is not done to conceal assets or to hide and to lie to the people to whom you are required to tell the truth. I might also point out at this point, because it is kind of an issue, nobody knows today what would have happened if Mr. Brown had put every single thing in that bankruptcy petit ion, if he had written down, Paul Kahn is holding this house. . .

. It’s very possible that the bankruptcy court would have said, well, you know, he’s got a family, he needs to stay in that house, we’re not going to force a sale of that house. Butthat’s not the point. The point is, Mr. Brown had an absolute obl igation to tell the bankruptcy court and let the bankruptcy court make that decision. R. Vol. XXVII at 2229. In principle then, there is no inconsistency between the jury’s verdicts and a finding of no loss; any incon sistency would have to be in the specifics. The government thus argues that “it is difficult to see under the facts of this case how there could be no loss to the FDIC.” Appellee ’s Br. at 57 (emphasis added). The government does not tell us what these key facts are. It states only that the court’s finding that “it was n ot persuaded that the transactions-21-

were fraudulent . . . encroached on the jury’s findings of fact.” Id. at 58. This is a considerable oversimplification of the issue. Fo r example, following the tenor of the government’s closing argument above, the jury may well have thought that the only crime Brown committed with relation to the house was not telling the bankruptcy court about a perfectly legal transfer. Some of the conflicts between the jury’s verdicts a nd the court’s sentencing findings are obvious and troubling. The court appe ars to have found that Brown in fact had no interest in the fitness center. See R. Vol. XIV at 145, 146. The court also determined essentially that Brown had no interest in the residence at the time of the FDIC settlement. See id. at 151. But it is easy to understand how the court arrived at these conclusions given the de arth of proof offered by the government at sentencing regarding precisely what p roperty interests could be attributed to Brown. Although the government provi ded evidence regarding the total value of each of the assets, it never attempt ed to show what portion of that value was properly attributable to Brown. This pro blem is most apparent with regard to the fitness center. The court acknowledg ed that “the jury verdict does stand for the proposition that there was a finding by the jury implicitly that the defendant had some interest in the fitness center.” Id. at 145. Yet it had no way to evaluate that interest, because despite strong e vidence that Joyce Brown had at least some property interest in the fitness center (it had increased in value in part-22-

due to her personal efforts), the government never attempted to provide even an estimate of the portion of the property which could properly be attributed to Brown himself. It likewise makes no such arguments on appeal, with regard to this or either of the other assets. The governmenthas set high hurdles for itself with its “all-or-nothing” stance at sentencing and on appeal. On the record before us, we conclude t he court’s findings do not necessarily undermine the convictions. Its reasoni ng is repeatedly stated in terms of a “failure of proof.” Given the narrow theories of liability argued at trial and the complicated nature of the property interests in volved, the government was not entitled at sentencing merely to rest on the jury’s verdicts coupled with evidence regarding overall asset values. The court was empo wered and indeed required to make its own findings on the facts relating to loss , and after a full hearing, it held that the government had not met its burden. See Fed. R. Crim. P. 32(c)(1); United States v. Garcia , 78 F.3d 1457, 1463 n.6 (10th Cir. 1996) (“The jud ge remains ultimately responsible for determining the facts [at sentencing] . . . .”); cf. United
States v. Tavano , 12 F.3d 301 (1st Cir. 1993) (finding error in sentencing court’s refusal to consider evidence favorable to defendantand inconsistent with evidence presented at trial). Although we have mis givings about some aspects of the district court’s findings, on this record, we h ave no basis for disturbing its decision.-23-

AFFIRMED.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge