* This order and judgment is not binding precedent, e xcept under the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 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-6072 TERRY O’TOOLE, Defendant-Appellant. (D.C. No. 98-CR-154-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON, KELLY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant Terry O’Toole, who pleaded guilty to one count of misprision of felony based on his concealment of an elaborate mai l fraud scheme, appeals from the district court’s sentence imposing restitution in the amount of $163,284.-2-

O’Toole contends the record establishes no nexus be tween his count of conviction and investor losses. We exercise jurisd iction pursuant to 28 U.S.C. § 1291 and affirm.
I. In the summer of 1997, O’Toole and several other in dividuals began promoting the sale of “gold-backed railroad bonds.” Purchasers were told the bonds would be traded in international markets and would generate astronomical returns on investment. In truth, the bonds were vi rtually worthless and investors were essentially part of nothing more than a Ponzi scheme. In September 1997, the leader of this fraudulent scheme, Sloan Dupont (a.k.a. James Rice), directed promoters, including O’Toole, to travel to London t o receive their initial payments. Dupont, however, did not distribute any funds. Upon his return from London, O’Toole continued to promote the railroad b ond scheme and, from September 1997 to March 1998, collected $163,284 fr om various investors. O’Toole did not forward much of these funds to the California bank where he had previously sent investors’ “bond purchase” paym ents, but kept the money for himself. Although the record is not altogether cle ar as to when the scheme ultimately unraveled, O’Toole’s role ceased in Marc h 1998. In September 1998, O’Toole was charged by criminal information with one count of misprision of felony in violation of 18 U. S.C. § 4. Specifically, the-3-

charge read: From in or about July, 1997, through in or about March, 1998, in the Western District of Oklahoma, and elsewhere, Terry O’Toole, the defendant herein, having knowledge of the commi ssion of a felony by certain individuals, to-wit: conspiracy t o commit mail fraud, in violation of [18 U.S.C. §§ 371, 1341], an d did conceal such violation and did not as soon as possible make know n the same to some judge or other person in civil or military authority under the United States. App. at 10. Several weeks later, O’Toole pleaded g uilty to the charge pursuant to a plea agreement. At the sentencing hearing, the c ourt heard evidence on victim losses and ultimately imposed a restitution order o f $163,284. O’Toole now appeals the restitution order.
II. Except to the extent agreed to by the parties in a plea agreement, see 18 U.S.C. § 3663(a)(3), restitution is confined to “th e loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey v. United States , 495 U.S. 411, 413 (1990). The sole issue on appeal is whether there is enough evidence to support a connection between the acts t o which O’Toole pleaded guilty and the court’s $163,284 restitution order. The answer is clearly yes. Although restitution could have been imposed agains t O’Toole for investor losses flowing from his misprision prior to his Sep tember 1997 London trip, the court, acting at the urging of prosecutors, opted o nly to assess restitution for events occurring after September 1997. There is ample evidence in the record-4-

that, upon his return from London, O’Toole solicite d and/or received railroad bond investments from five individuals totaling $16 3,284. App. at 204-08. O’Toole claims some of these funds were received pr ior to September 1997. The timing is ultimately irrelevant. O’Toole pleaded guilty to being aware of the fraudulent investment scheme from July 1997 throughMarch 1998, thereby subjecting all acts during that time period to a re stitution award. O’Toole also suggests he was unaware of the fraudulent nature of the investments. That claim, however, is directly refuted by his guilty plea. I f O’Toole felt he was a mere victim of Sloan Dupont and/or other promoters, he s hould not have pleaded guilty to misprision of felony. The judgment of the district court is AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge