United States v. Lundstrom, No. 16-1860 (8th Cir. 2018)
Annotate this CaseThe Eighth Circuit affirmed defendant's conviction and sentence for charges related to his involvement in a scheme to defraud TierOne Bank's shareholders and to mislead its regulators by concealing millions of dollars in losses related to the failure of certain real estate loans. The court held that the district court did not err by denying defendant's motion for judgment of acquittal, because the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant possessed the knowledge and intent required to sustain his convictions; the district court did not err by denying defendant's motion for a bill of particulars where the government's disclosures were sufficient to enable defendant to understand the nature of the charges against him, prepare a defense, and avoid any surprise; the court rejected defendant's evidentiary challenges; and the district court properly declined to issue defendant's requested jury instructions. The court also held that the district court did not clearly err in adopting the loss calculation methodology set forth in the Sentencing Guidelines; the district court did not err in applying a 4-level leadership enhancement under USSG 3B1.1(a); and defendant's sentence was substantively reasonable. Finally, the district court did not err in its calculation of the restitution award.
Court Description: Wollman, Author, with Arnold and Gruender, Circuit Judges] Criminal case - Criminal law and sentencing. In prosecution of the former Chief Executive Officer of TierOne Bank, the evidence was sufficient for the jury to find beyond a reasonable doubt that defendant possessed the knowledge of the conspiracy and the intent to defraud necessary to sustain his conspiracy and fraud convictions; the government provided defendant with the discovery needed for him to understand the nature of the charges, prepare a defense and avoid any surprise, and the district court did not err in denying his motion for a bill of particulars; evidentiary challenges rejected; no error in giving a willful blindness instruction or in refusing to give defendant's proposed advice-of-counsel instruction; no error in calculating the amount of the loss attributable to defendant's offense conduct under Guidelines Sec. 2B1.1(b)(1); no error in imposing a leadership enhancement under Guidelines Sec. 3B1.1(a) as defendant directed or enlisted subordinates and the fraud was "otherwise extensive;" claim that defendant's 132-month sentence, which was a downward variance from this Guidelines range of 360 months, was substantively unreasonable rejected; where, as here, a district court varies below a correctly calculated Guidelines sentence, it is nearly inconceivable that the court abused its discretion in not varying downward still further; $3.12 million restitution award affirmed; for restitution purposes, where a defendant's fraudulent conduct entices victims to enter the market in the first place, the defendant assumes responsibility for their losses, including those resulting from market forces.
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