* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral 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 

### MAY 8 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. STEVEN LEE PYRON, Defendant-Appellant. No. 95-5210 (D.C. No. 95-CR-9-B) (N.D. Okla.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Pyron was convicted by a jury of three counts o f Mail Fraud and Causing a Criminal Act, in violation of 18 U.S.C. § 1341 and 18 U.S.C. § 2(b), and three counts of Wire Fraud and Causing a Crimin al Act, in violation of 18 U.S.C. § 1343 and 18 U.S.C. § 2(b). Mr. Pyron was sentenced to thirty-six months per count, each sentence to run concurrently . The sentence was based, in part, on the district court's finding of a loss ran ge between $70,000 and $120,000.
On appeal, Mr. Pyron challenges the trial court's d ecision to exclude portions of testimony from his wife, Mrs. Pyron, onhearsay grounds. Specifically, Mr. Pyron argues the exclusion of the testimony was reversible error because the offered statements fit within the Fed. R. Evid. 803(3) state of mind exception to the hearsay rule. Mr. Pyron also cont ests his sentence on the grounds the district court erred in its determinati on of loss for purposes of the Sentencing Guidelines. After consideration on appe al, we affirm Mr. Pyron's conviction and sentence.
I. Background In the indictment, Mr. Pyron was charged with schem ing to defraud investors by inducing them to buy interests in oil and gas leases. At trial, the government attempted to show that through a series of misrepresentations, Mr.-3-

Pyron defrauded investors and diverted the money fo r his own personal use. Mr. Pyron, through his company, Serene Oil, solicited i nvestors for the "Misener Sandstone project." The investors in the Misener p roject were contacted by telephone, and were told that in exchange for theirinvestment a well would be drilled and they would receive a working interest i n the oil well. At trial, evidence was introduced showing that despite the mo ney invested in the Misener project, and despite his representations to the con trary, no drilling was done at the Misener project. Further, evidence was admitted to show that contrary to the investor agreements, Mr. Pyron used investor funds to pay his personal living expenses. After sending their money, the investors made repeated, failed attempts to contact Mr. Pyron.
II. Fed. R. Evid. 803(3) At trial, the government admitted evidence Mr. Pyro n left Oklahoma for Kentucky at the same time investors were attempting to contact Mr. Pyron regarding the status of their investments. Mr. Pyr on attempted to admit testimony from his wife, Mrs. Pyron, that Mr. Pyron had told her he intended to go to Kentucky to raise money to complete the Misener pro ject, then intended to return to Tulsa to oversee the project's completion. The district court excluded the testimony based on hearsay. Mr. Pyron argues the d istrict court erred in failing to-4-

admit the testimony under Fed. R. Evid. 803(3), the state of mind exception to the hearsay rule.
Evidentiary rulings rest within the sound discretio n of the trial court, and we review those decisions only for an abuse of thatdiscretion. United States v. Tome , 61 F.3d 1446, 1449 (10th Cir. 1995). "Our review is especially deferential when the challenged ruling concerns the admissibili ty of evidence that is allegedly hearsay." Id.
Hearsay testimony, or testimony as to out of court statements offered to prove the truth of the matter asserted, is generall y inadmissible. Fed. R. Evid. 802. However, under Fed. R. Evid. 803(3), "[a] statement of the declarant's then existing state of mind, emotion, sensation, or phys ical condition ..., but not including a statement of memory or belief to prove the fact remembered or believed," is admissible as an exception to the hea rsay rule. Here, Mr. Pyron argues his wife's testimony fit the exception becau se it showed his lack of intent to evade his investors. We disagree.
Fed. R. Evid. 803(3) allows a declarant's out of co urt statement not to prove the matter asserted, but to show a future intent of the declarant to perform an act-5-

in conformity with the statement, if the occurrence of that act is in issue. United States v. Freeman , 514 F.2d 1184, 1190 (10th Cir. 1975). In other w ords, statements of intent are admissible to provide a fo undation for the declarant's subsequent actions. Id. at 1190.
Mr. Pyron's statements regarding his future intent to raise money and return to Oklahoma would be admissible to prove he, in fac t, did both of those things. Mr. Pyron does not contest the fact he did neither of those acts. Consequently, the statements do not fit Rule 803(3) to the extentthey were offered to show Mr. Pyron performed an act in conformity with his inten t.
Second, Mr. Pyron's statements did not express any "intent" as to whether he intended to defraud his investors; he merely exp ressed his intent to raise more money and to return to Oklahoma. See Tome , 61 F.3d at 1454 (child's statement asking sitter not to let her be taken back to her f ather inadmissible under Rule 803(3) because statement did not express fear, but merely a desire to remain with her mother). Consequently, the statements do not f it within the parameters of Rule 803(3). We hold because the statements do notfit the confines of Fed. R. Evid. 803(3), the district court did not abuse its discretion in failing to admit them.-6-

Mr. Pyron attempts to argue the district court erre d in excluding the testimony on the grounds it was hearsay. However, the court excluded the testimony on the grounds the out of court statementwas offered to prove the matter asserted and did not fit the Fed. R. Evid. 8 03(3) exception. Mr. Pyron argues because the statements fit Rule 803(3) it wa s irrelevant whether the statements were offered for their truth. This argu ment fails, however, because, as the district court properly held, the statements di d not fit the hearsay exception of Rule 803(3). We hold the district court did not ab use its discretion in excluding the testimony based on hearsay.

III. Calculation of Loss Mr. Pyron argues the district court erred in its ca lculation of loss. Specifically, Mr. Pyron challenges the district cou rt's inclusion in the calculation of loss the following two amounts: 1) Gerald Altob elli's and Roger Hutchinson's investment of $8,894 in the "Pettiquah Project"; an d 2) Daniel Cameron's investment of $18,412 into the "Watson Project" in Cowley County, Kansas. Consequently, Mr. Pyron maintains the proper loss f igure is $66,084.75 rather than $93,390.75, which would result in a one-level reduction in his offense level. U.S. Sentencing Guidelines Manual§ 2F1.1(b)(1)(F), (G) (1994).-7-

Neither the Pettiquah Project nor the Watson Projec t were part of the charged conduct. Instead, evidence of Mr. Pyron's conduct regarding the Pettiquah Project was admitted as "similar acts" ev idence under Fed. R. Evid. 404(b). Evidence of Mr. Pyron's conduct regarding Mr. Cameron's investment was admitted during sentencing for the purpose of c alculating loss.
Section 2F1.1 of the United States Sentencing Guide lines provides for an increase in a defendant's base offense level for th e amount of "loss" suffered by the defendant's victims. USSG § 2F1.1 (1994). Gen erally, "loss" is "the value of the money, property, or services unlawfully taken." Id. , comment. n.7. For purposes of sentencing, the district court need notdetermine loss with precision. Rather, "[t]he court need only make a reasonable es timate of the loss, given the available information." Id. , comment. n.8; United States v. McAlpine , 32 F.3d 484, 488 (10th Cir.), cert. denied, 513 U.S. 1031 (1994). The Guidelines also authorize the court "to consider the nature and sco pe of the entire scheme in determining the amount of loss." Mc Alpine , 32 F.3d at 488.
While the government has the burden to prove the am ount of loss by a preponderance of the evidence, on appeal we review the district court's findings of fact regarding loss calculation under a clearly erroneous standard. Id. at 487;-8-

United States v. Abud-Sanchez , 973 F.2d 835, 838 (10th Cir. 1992). "'A finding of fact is "clearly erroneous" if it is without fac tual support in the record or if the appellate court, after reviewing all the evidence, is left with a definite and firm conviction that a mistake has been made.'" Abud-Sanchez , 973 F.2d at 838 (quoting Cowles v. Dow Keith Oil & Gas, Inc. , 752 F.2d 508, 511 (10th Cir. 1985), cert. denied, 470 U.S. 816 (1986)).
Mr. Pyron argues the district court erred in includ ing Mr. Altobelli's and Mr. Hutchinson's investments in its calculation of loss because they both have their interests in the projects, were never promise d any "money from the working interest," technically received what they had barga ined for, and because they did not "believe" they suffered a loss. Therefore, Mr. Pyron argues, the government's proof of loss was insufficient, and the district co urt erred when it included the investments in the calculation of loss for the purp ose of sentencing. We disagree.
The trial record shows the government sustained its burden of establishing Mr. Altobelli's and Mr. Hutchinson's investments co nstituted loss, and the district court's findings of fact are not clearly erroneous. At trial, Mr. Altobelli and Mr. Hutchinson testified Mr. Pyron solicited their inve stments, and were told all monies they invested would be used to restore the P ettiquah Project to productive-9-

capacity. However, the government introduced evide nce showing Mr. Pyron diverted investor money to pay personal expenses. Also, evidence was introduced showing that Mr. Pyron induced investments in the P ettiquah Project by representing he would rework the wells at the proje ct and would be the operator of the Pettiquah Project. However, evidence was in troduced showing Mr. Pyron in fact had nothing to do with any work performed at the Pettiquah Project and had no right to rework or to operate the project.
As a result, because the record supports that the P ettiquah investments represent "money ... unlawfully taken," we hold the government has sustained its burden and the district court was not clearly erron eous in including the Pettiquah investments in its calculation of loss. USSG § 2F1 .1 comment. n.7.
Mr. Pyron also challenges the district court's incl usion of Mr. Cameron's investment of $18,412. The district court estimate d loss as between $70,000 and $120,000 based on the presentence report's calculat ion of loss at $93,390.75. Even if we were to subtract the challenged amount, because the total loss still exceeds $70,000, the record supports the district c ourt's estimation of loss as1 Indeed, when assessing loss with regard to Mr. Cameron's investment, the

court seemed to indicate the record supported the l oss range of $70,000 to $120,000 regardless of Mr. Cameron's investment by stating: "[I]n any event the record supports the $70,000 to $120,000 fraud guide line range which requires adding of six points to the base offense level." W e agree.
-10- between $70,000 and $120,000 regardless of Mr. Came ron's investment. 1 Therefore, because the record supports the districtcourt's estimation of loss regardless of Mr. Cameron's investment, we need notaddress Mr. Pyron's challenge to the district court's calculation of lo ss as it relates to Mr. Cameron's investment.
Accordingly, we AFFIRM Mr. Pyron's conviction and sentence.

Entered for the Court
WADE BRORBY United States Circuit Judge