United States v. Henderson

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 93-2707
________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH P. HENDERSON,

Defendant-Appellant.

____________________________________________

Appeal from the United States District Court
for the Southern District of Texas
____________________________________________

(April 13, 1994)

Before GARWOOD and BARKSDALE, Circuit Judges, and WALTER1, District
Judge.

WALTER, District Judge:

Kenneth P. Henderson appeals his conviction for fraudulent

banking activities.2 Henderson questions the sufficiency of the

1
District Judge of the Western District of Louisiana, sitting
by designation.
2
Henderson was convicted on five counts. Counts one and four
charged Henderson with bank fraud in violation of 18 U.S.C. § 1344.
Count two involved a violation of 18 U.S.C. § 656, for misapplying
bank funds. The third count was brought under 18 U.S.C. § 1005,
for making false entries in the records of a federally insured
evidence and several of the trial judge's evidentiary rulings.

Finally, Henderson argues that the trial court erred in applying

the sentencing guidelines to count one of the indictment. For the

reasons that follow, we affirm in part and reverse in part.

Background

This case involves a long-term professional relationship and

personal friendship gone awry. Kenneth P. Henderson began to

handle Dr. Charles Howard's banking business in 1970. Over the

years, the two became close personal friends and trusted business

associates. Unfortunately, this relationship led ultimately to Mr.

Henderson disregarding important federal banking regulations. To

understand how Mr. Henderson and Dr. Howard got to this point, we

must retrace their relationship from its early days.

Kenneth Henderson met Dr. Howard in 1970, while Henderson was

president of Northshore Bank in Houston, Texas. A friendship

developed, and when Henderson left Northshore in 1973 to become

president of Greater Houston Bank, he took Dr. Howard's account

with him. Henderson left Greater Houston in 1979, taking over the

bank. Count five charged a violation of 18 U.S.C. § 1014, for
making false statements to a federally insured bank. All five
counts also involved 18 U.S.C. § 2, which defines those persons
that may be charged as principals.
The indictment alleges that Henderson defrauded, or attempted
to defraud, 18 U.S.C. § 1344 (1), and obtained or attempted to
obtain money or property owned by and under the care, custody and
control of the banks, 18 U.S.C. § 1344 (2). Although neither the
indictment nor the judgment cite a specific subsection of section
1344, the government offered evidence that subsections (1) and (2)
were violated by Henderson.

2
Vice Presidency of the Board of Directors at First Bank and Trust

(FB&T) in Tomball, Texas. Again, Dr. Howard's accounts followed.

Henderson soon became the Chairman of the Board of Directors at

FB&T.

Dr. Howard held investments in certain hospitals and other

real estate in the Houston area. During a visit to one of these

hospitals in 1982, Henderson and Howard discussed the prospects for

opening a new bank. They believed that northwest Houston had

growth potential and would be an excellent location for a bank.

Dr. Howard and other businessmen then applied for a federal bank

charter in the name of Cy-Fair Bank, N.A. (Cy-Fair). The charter

was granted and Cy-Fair opened in a shopping center near Jones Road

in northwest Houston.

Henderson and Howard began looking for property in the region

to build a permanent bank building for Cy-Fair, complete with

drive-through facilities. Sometime in 1982 or 1983, Henderson

located a 9.3 acre parcel along Jones Road. Howard agreed that

this lot would be a good location for the new Cy-Fair bank.

Henderson and Howard then orally agreed to become partners in the

acquisition of the Jones Road property. Howard agreed to borrow

the money for the purchase in his own name, and Henderson agreed to

reimburse Howard for half the loan payments and other costs

associated with the Jones Road property.

3
 Henderson and Howard agreed to borrow the money for the Cy-

Fair bank property from FB&T, a bank owned by Henderson.3 In April

of 1983, Henderson, acting as loan officer for FB&T, made a

$456,818.62 loan to Dr. Howard for three acres of the Jones Road

property. This loan was ratified by the FB&T Board at its May,

1983 meeting.4 Henderson made a second loan to Dr. Howard on April

16, 1984, for $443,000.00, which covered another 1.5 acres along

Jones Road. The FB&T Board ratified this loan at its May, 1984

meeting. Dr. Howard received a third loan--again with Henderson

acting as loan officer--for the Jones Road real estate on April 11,

1985. The FB&T Board ratified this loan in May, 1985. The 1985

loan covered the remaining Jones Road acreage and consolidated the

previous two loans; the 1983 and 1984 loans were paid, including

$100,000 in interest, with the 1985 loan. The 1985 loan was for

$1,435,000.00 and had a maturity date of April 11, 1987. On April

11, 1986, Henderson extended the Jones Road loan, changing the

maturity date to April 11, 1989.

All the loans on the Jones Road property were in Howard's

3
Henderson claims to have owned only a 23% interest in FB&T.
It is undisputed that he was the largest shareholder in FB&T and
served as Chairman of the FB&T Board of Directors from 1979 until
the bank was taken over by the FDIC in 1988.
Henderson was also one of the seven founding directors of Cy-
Fair Bank and served as Chairman of the Cy-Fair Board from its
founding in 1983 until December 1986. Cy-Fair failed on April 14,
1988.
4
It is not clear whether the Board customarily pre-approved
loans of this nature or simply ratified loans already extended.
The government implies, and certain testimony supports, that
Henderson should have received board approval before making the
loan to Dr. Howard. Henderson contends that the loans to Dr.
Howard were handled in the same manner as all other FB&T loans.

4
name. However, the financial statements filed by Dr. Howard for

the 1984 and 1985 loans indicated that only half the payments were

being made from Howard's own assets. Henderson voted to ratify

these loans at the FB&T Board meetings, over which he presided. It

was clear from the minutes of these meetings that the other

directors knew Henderson had personally made these loans to Dr.

Howard. Henderson never disclosed that he was Dr. Howard's "silent

partner" in the Jones Road property.

In June of 1985, Henderson and Dr. Howard decided to bring in

two additional partners to spread the risk associated with the

Jones Road venture. Leo Kalantzakis and Dr. Richard Hausner became

full partners during the summer of 1985, each assuming

responsibility for one-quarter of the costs of the property. Both

testified that Henderson and Howard held themselves out as partners

in this investment. They also testified that Henderson never acted

as though his interest in the Jones Road development differed in

any way from that of the other partners. Henderson paid for his

share of the loan costs, taxes, and other expenses.

Two factors combined to doom the plans for the new Cy-Fair

bank. First, the Houston economy began to slump during late 1985

and remained flat through 1986 and 1987. Second, five new banks

were granted charters within a five mile radius of Cy-Fair. These

conditions did not favor the Cy-Fair Bank expansion. Therefore,

the Jones Road partners--Henderson, Howard, Kalantzakis, and

Hausner--decided to put off building the new Cy-Fair Bank building.

This decision made it difficult for the partners to make their

5
payments on the FB&T loan.

During 1986, Henderson applied for and received a $147,500

loan from Cy-Fair. He presented two financial statements, dated

June 15, 1984, and July 1, 1986, neither of which indicated any

interest in the Jones Road property. Nor did Henderson disclose

that he was making payments related to the Jones Road property on

the cash flow portion of these financial statements.

In late 1987 an FDIC examination began to focus on FB&T's 1985

loan to Dr. Howard. An FDIC report, dated November 21, 1987,

classified that loan as "worrisome". When Henderson found out

about this investigation, he contacted Dr. Howard and asked for a

letter showing that Henderson was never a partner in the Jones Road

venture, but held an option to purchase an interest in the

property. Howard testified that he agreed to sign such a letter

out of compassion for Henderson. Henderson presented this letter

at trial bearing a November 5, 1985 date.

The government presented several reasons to doubt the

authenticity of the November 5, 1985 letter. First was Dr.

Howard's direct testimony that the letter was prepared by Henderson

and signed in either late 1987 or early 1988. Next the government

pointed out that the November 5, 1985 letter referred to 6.14

acres, although Howard and his partners owned 9.32 acres at that

time.5 Further, the letter referred to a maturity date of April

5
In June 1986, seven months after the alleged November 5, 1985
letter, the seller of the Jones Road property foreclosed on 3.14
acres, leaving Howard and his partners with 6.14 acres. On
November 5, 1985, the partners still owned the entire 9.32 acre
tract, subject of course, to the FB&T loan.

6
11, 1989, although the Jones Road loan had a maturity date of April

11, 1987 on November 5, 1985. The maturity date was extended to

1989 when the loan was refinanced on April 11, 1986. Finally, Dr.

Hausner testified that Dr. Howard told him of Henderson's request

for a "sham option" letter sometime during early 1988. Howard told

Hausner that he expected Henderson to try to use the letter to

avoid liability on the FB&T loan.

Henderson presented two additional letters, allegedly signed

by Dr. Howard, to show that he held only an option on the Jones

Road property. A letter dated November 4, 1985 indicated that

Henderson held an option to purchase one-half of Dr. Howard's

interest in the Jones Road lot. The second letter, dated April 16,

1987, stated that Henderson's option had been terminated because of

his failure to make the required payments. Both letters were

attacked as bogus by the government. Howard denied ever seeing or

signing either letter. Neither letter was similar in type style to

the November 5, 1985 letter.

An expert on banking regulations testified that Henderson's

actions jeopardized the financial integrity of both FB&T and Cy-

Fair. According to this expert, Henderson's conduct exposed both

banks to regulatory penalties, which can have an indirect,

detrimental effect on a bank's business. Further, Henderson

exposed the banks to direct risk of loss by making or requesting

funds for suspect projects without disclosing all the details of

these endeavors.

Board members from FB&T and Cy-Fair testified that both loans

7
probably would have been made even if Henderson had disclosed his

interest in the property. These directors also testified that they

were aware of the regulations requiring disclosure of such

interests, and that an interested director is prohibited from

taking part in transactions affecting his interest. The FB&T

directors stated that, in their opinion, Henderson should not have

acted as loan officer for the Jones Road loans and that he should

not have participated in the ratification votes on these loans. It

was also shown that Henderson had properly disclosed an interest in

bank loans in the past, indicating that he understood the relevant

regulations.

I. Sufficiency of the Evidence

Henderson raises three specific issues concerning the

sufficiency of the evidence presented at his trial. First,

Henderson questions whether an interest based on an unenforceable

oral contract can support a conviction for bank fraud,

misapplication, or false statements. Second, Henderson argues that

a bank officer's failure to disclose a personal interest in a loan

cannot constitute bank fraud. Finally, Henderson asks whether a

loan to a credit-worthy borrower constitutes misapplication of bank

8
funds because the loan officer has an undisclosed interest in the

proceeds of the loan.6

A. The Statute of Frauds

Henderson's statute of frauds argument proceeds in two steps.

First, Henderson argues, the statute of frauds makes the oral

agreement with Dr. Howard unenforceable. Henderson then contends

that there is no obligation to disclose unenforceable contracts.

This argument misconstrues both the statute of frauds and the

substantive federal criminal provisions involved in this case.

"[T]o prevent fraud by those who would misrepresent verbal

promises, the statute [of frauds] require[s] written proof in

certain cases before performance can be enforced in the courts."

Clements v. Withers, 437 S.W.2d 818, 821 (Tex. 1969) (Reavley, J.).

Henderson contends that the statute of frauds would "slam the door

shut on" Dr. Howard had the doctor tried to enforce the contract.

However, that is not the question. The question is whether or not

Henderson stood to benefit from the loans to Dr. Howard.

The statute of frauds does not shield Henderson from federal

6
At oral argument, Henderson also argued that his failure to
inform FB&T of his interest in the Jones Road property could not
constitute bank fraud under 18 U.S.C. § 1344, because his omis-
sions were not material. Henderson relies on the testimony of two
FB&T directors that the loans to Dr. Howard probably would have
been made even had Henderson informed the FB&T Board of his
interest in the Jones Road land. However, there was also testi-
mony that the Directors of FB&T realized that Henderson had
violated banking regulations by failing to disclose his interest.
There was sufficient evidence to support the jury's conclusion that
Henderson's omissions were material.

9
banking regulations. If Henderson hoped to profit on the Jones

Road property, he was "interested". It doesn't matter whether

Henderson was a full partner or just held an option on the

property. Either way, Henderson stood to gain as a result of

FB&T's decision to extend credit to Dr. Howard. Henderson breached

his fiduciary duty as a member of the FB&T Board by failing to

disclose his interest. The only way the statute of frauds would

change this analysis is if Dr. Howard had already rejected the

agreement when the loans were made. Henderson has made no such

claim.

The statute of frauds may not be used to facilitate the

execution of a fraud. Henderson's covert agreement with Dr. Howard

was oral to prevent its detection. To use the statute of frauds to

invalidate this agreement would insulate Henderson's fraudulent

activities. The Texas Supreme Court has held that such conduct

cannot be protected by invoking the statute of frauds. Nagle v.

Nagle, 633 S.W.2d 796, 799 (Tex. 1982) (citing Hooks v.

Bridgewater, 229 S.W. 1114, 1116 (Tex. 1921)).

Henderson argues that an interest in the subject of a bank

transaction must be a legally enforceable interest to warrant

disclosure. We disagree. It is enough that Henderson

intentionally hid his interest in the Jones Road property. See,

e.g., United States v. Kington, 875 F.2d 1091, 1100-01 (5th Cir.

1989) (failure to disclose that a loan was made to purchase bank

stock from the loan officer is fraudulent and supports a conviction

under 18 U.S.C. § 656 (misapplication of bank funds)).

10
 B. Fiduciary Duties and Bank Fraud

Henderson's second sufficiency argument focuses on the bank

fraud count for the 1985 FB&T loan to Dr. Howard. Henderson

contends that "this case involves nothing more than a breach of

fiduciary duty," and therefore, does not constitute a "scheme or

artifice" to defraud under 18 U.S.C. § 1344. We disagree.

In the first place, this case involves more than a breach of

fiduciary duty. Henderson's activities violated federal banking

regulations and exposed FB&T to civil penalties. Further,

Henderson did more than sit quietly by while the FB&T Board

approved a loan in which he was interested. Henderson had an

obligation to avoid participating in any bank transactions that

affected him personally. Henderson was also obliged to inform the

Board of Directors of his interest--however he defined it--in the

Jones Road real estate. Finally, Henderson had a duty to abstain

from the Board vote on the Jones Road loans.

There was also evidence that Henderson took active steps to

keep his agreement with Dr. Howard concealed. Howard testified

that Henderson wanted their agreement oral so that no one could

trace the loan back to Henderson. Henderson accepted Howard's

financial statements without question, even though those statements

clearly indicated that Howard had a "silent partner" paying half

the loan costs. Finally, there was evidence that Henderson created

bogus letters to characterize his interest in the Jones Road

11
property as an option. There was sufficient evidence to allow a

rational juror to conclude, beyond a reasonable doubt, that

Henderson's actions constituted a "scheme or artifice" to defraud

FB&T.7

C. Credit Worthiness of Dr. Howard

Henderson's final sufficiency attack goes to count two:

misapplication of bank funds in violation of 18 U.S.C. § 656. This

count is based on Henderson's role in securing the 1985 FB&T loan

for Dr. Howard. Henderson argues that because Dr. Howard was a

credit worthy borrower, there can be no violation of section 656.

Again, we disagree.

In United States v. Saks, 964 F.2d 1514, 1519 (5th Cir. 1992),

this court held that the financial well being of the borrower would

not prevent a conviction for bank fraud under 18 U.S.C. § 1344. In

support of this conclusion, the court approvingly cited cases from

other circuits, including United States v. Walker, 871 F.2d 1298

(6th Cir. 1989). Walker involved a conviction for misapplying bank

funds. The following excerpt is particularly appropriate:

In this case, evidence of Hastings' and Hollaway's
credit worthiness and their understanding of the
obligation to repay was irrelevant, as the trial court
held. Mr Walker arranged these loans for his own
benefit, concealing his interest in them from other bank
officials. With these facts, the government adequately

7
Because we find sufficient evidence of more than a mere
breach of fiduciary duty, we need not reach the question of whether
or not such a breach alone can constitute a "scheme or artifice" to
defraud.

12
 established Walker's intent to defraud the bank. The
fact that the loans were otherwise "good" loans, and that
the named borrowers understood their obligation to repay
the loans if Walker defaulted on them, is irrelevant
because Walker personally benefited from the transactions
at issue.

Walker, 871 F.2d at 1307. We adopt the reasoning of the Sixth

Circuit and hold that the credit worthiness of Dr. Howard was

irrelevant to the misapplication of bank funds charge against

Henderson.

II. The Trial Court's Rulings

Henderson questions three rulings of the trial court. First,

Henderson argues that the judge erred in excluding expert testimony

concerning the statute of frauds or in the alternative that the

judge should have instructed the jury on the statute of frauds. In

the second ruling questioned by Henderson, the trial judge excluded

certain evidence concerning Dr. Howard's wealth. Finally,

Henderson complains that a government witness' testimony was

improperly bolstered using a prior consistent statement. We reject

each of these arguments.

The statute of frauds offers no refuge to Henderson. Because

Henderson's obligation to disclose his interest in the Jones Road

property does not depend on the applicability of the statute of

frauds to his agreement with Dr. Howard, the trial court was

correct in excluding expert testimony on this subject. Further,

the judge's jury instructions properly defined the elements of the

charges against Mr. Henderson. There was no reason to confuse the

13
jury with an unnecessary instruction concerning the statute of

frauds.

This court has held that the credit worthiness of a borrower

will not insulate a bank officer from charges of bank fraud.

United States v. Saks, 964 F.2d 1514, 1519 (5th Cir. 1992). The

same principle applies to the other charges against Henderson.

More importantly, the trial judge did not exclude all evidence of

Dr. Howard's wealth. He allowed testimony to the effect that

Howard was a wealthy man. Henderson objected when the judge

refused to allow specific evidence of Dr. Howard's financial

status. We believe the judge acted properly in excluding this

evidence.

Henderson complains that the trial court improperly allowed

Dr. Hausner to bolster the testimony of Dr. Howard with a prior

consistent statement. Under Federal Rule of Evidence 801(d)(1)(B),

a prior consistent statement may only be "offered to rebut an

express or implied charge against the declarant of recent

fabrication or improper influence or motive." Fed. R. Evid.

801(d)(1)(B).

This objection refers to Dr. Hausner's testimony that Dr.

Howard told him about the "sham option agreement" letter during

early 1988 (the letter dated November 5, 1985). The government

elicited this information to support Dr. Howard's prior testimony

that this letter was, in fact, prepared in late 1987 or early 1988,

rather than 1985. Henderson argues that Dr. Howard's testimony on

this point was not attacked during cross examination, and

14
therefore, the testimony of Dr. Hausner should have been excluded.

A review of the record indicates that Henderson did question

Dr. Howard about the letter dated November 5, 1985. In fact,

Henderson offered the two other letters--the option letter dated

November 4, 1985 and the option termination letter dated April 16,

1987--in connection with this questioning. Howard was also asked

about the timing of an alleged FBI investigation of Henderson,

implying that Howard was lying about the letter dated November 5,

1987, to help the FBI and to protect himself. Henderson even asked

Howard about a civil suit in which the FDIC sued Howard to recover

on the Jones Road loans. All of this questioning casts Dr.

Howard's testimony regarding the letter dated November 5, 1985 into

doubt. It also raises questions about Dr. Howard's motives and

possible collusion between Howard and the government. We believe

that these questions constitute an "implied charge against [Dr.

Howard] of recent fabrication or improper influence or motive."

Fed. R. Evid. 801(d)(1)(B). There was no error in admitting the

testimony of Dr. Hausner.

III. Sentencing Issues

Four issues are raised by Henderson concerning his sentencing.

Henderson first questions the trial judge's decision to impose

consecutive sentences on the counts related to the 1985 FB&T loan

15
to Dr. Howard. The same issue is presented by the sentences

imposed on counts four and five, which relate to the financial

statements filed in connection with Henderson's 1986 loan from Cy-

Fair. Third, Henderson objects to the district court's use of the

Sentencing Guidelines for count one. Henderson's final objection--

and the only objection with merit in this appeal--concerns the

amount of loss to FB&T and Cy-Fair caused by Henderson's

activities.

A. Consecutive Sentencing

The district court sentenced Henderson to five years in prison

on counts two, three, and four,8 with all three sentences to run

concurrently. Count one, bank fraud for the 1985 FB&T loan,

resulted in a 51 month sentence under the Sentencing Guidelines.

This sentence runs consecutively with the five years imposed on

counts two, three, and four. Henderson was sentenced to an

additional two years on count five for making false statements to

Cy-Fair Bank in the financial statements filed with his loan

application. Henderson faces a possibility of eleven years and

three months in prison (51 months for count one, plus five years

8
Count two charged violation of 18 U.S.C. § 656 for
misapplication of bank funds due to the 1985 FB&T loan to Dr.
Howard. Count three charged violation of 18 U.S.C. § 1005 for
making false entries in bank records, due to Henderson's failure to
inform FB&T of his interest in the Jones Road property. Count four
charged Henderson with bank fraud, 18 U.S.C. § 1344, for his 1986
loan from Cy-Fair.

16
for counts two, three, and four, plus two years for count five).9

Henderson argues that consecutive sentences based on the same

conduct are multiplicious, and therefore, must be vacated.

According to Henderson, sentences for the counts related to the

1985 FB&T loan to Dr. Howard must run concurrently. The same would

be true for the two counts based on Henderson's 1986 loan from Cy-

Fair. Under this logic, the sentences for counts one, two, and

three, which must run concurrently with each other, could be

consecutive with counts four and five. Henderson misunderstands

the law of multiplicious sentencing.

Claims of multiplicious sentencing generally fall into two

distinct categories. First, sentences are multiplicious if the

same act results in multiple punishments for multiple counts under

the same criminal provision. Our recent decision in United States

v. Hord, 6 F.3d 276 (5th Cir. 1993), is illustrative. Hord was

convicted on 19 counts, nine of which were brought under the bank

fraud provision, 18 U.S.C. § 1344. These nine counts were based on

depositing bogus checks, withdrawing the funds, and then having a

bank regulator "pull" the checks before they were processed. Hord

was charged under a different count for each deposit and

withdrawal. We vacated the sentences and the associated monetary

assessments for the three counts based on the attempted

withdrawals, because they were multiplicious with the counts based

on the deposits. We held that it was the deposit that consummated

9
Henderson is eligible for parole on counts two through five,
because those sentences were not imposed under the Sentencing
Reform Act of 1984.

17
the "scheme" requirement of section 1344, and that the attempted

withdrawals were simply additional steps in the same "schemes".

Hord, 6 F.3d at 282. Each "scheme" constituted bank fraud, but to

punish twice for a single bank fraud would violate double jeopardy.

In cases like Hord, the legal question raised is whether or not the

separate counts under the same criminal provision actually

constitute separate violations of that law.

Multiplicity may also be a question when a single act provides

the basis for convictions under different criminal laws. Again the

question raised is whether or not multiple counts are actually the

same offense. However, in this context,

[t]he applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is to
determine whether each provision requires proof of a fact
which the other does not.

United States v. Galvan, 949 F.2d 777, 781-82 (5th Cir. 1991)

(citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180,

76 L. Ed. 306 (1932)).

Henderson's claims fall into the second category. Therefore,

we must determine whether or not the proof required for bank fraud

differs from that required for either misapplication or making a

false entry.10 It does. In fact, each of these criminal provisions

involves an element not found in the others. Bank fraud requires

a "scheme or artifice" to defraud. No similar requirement is found

in either 18 U.S.C. § 656, misapplication, or 18 U.S.C. § 1005,

10
Counts two and three run concurrently, and therefore, raise
no multiplicity concern.

18
making a false entry. Misapplication requires that the bank

official "misapply" the funds, that is, that he either make the

questioned loan or play a significant role in the decision to make

the loan. Neither bank fraud nor making false entries contains

this requirement. Finally, making a false entry obviously

contemplates entries made in official bank records, an element

missing from bank fraud and misapplication. Henderson's

multiplicity argument fails as to the three counts based on the

1985 FB&T loan to Dr. Howard.

Henderson fares no better on the counts related to the 1986

Cy-Fair loan. These counts were based on bank fraud, 18 U.S.C.

§ 1344, and making a false statement to an insured bank, 18 U.S.C.

§ 1014. Again, the two crimes are different. There is no "scheme

or artifice" requirement in section 1014. Further, there is no

requirement that the person charged with bank fraud make a

materially false statement to an insured bank.

There is a constitutional reason for this result. When

Congress enacts a criminal law, pursuant to an enumerated power,

Congress determines the appropriate punishment or range of

punishments for that crime. If Congress defines multiple crimes

that may be implicated by the same conduct, there is a strong

presumption that Congress intended that each criminal provision

apply. Only by enforcing every law violated by certain conduct can

the prosecutor effectively vindicate the interests served by each

distinct criminal enactment. Similarly, it is presumed that

Congress intends that every crime carry its own punishment.

19
Therefore, as long as the crimes can be properly characterized as

different "offences" for double jeopardy purposes, a defendant

convicted of multiple crimes may receive cumulative punishment.

Henderson could have received consecutive sentences on every count

of this indictment.

B. Applicability of the Sentencing Guidelines to Count One

Henderson contends that the bank fraud alleged in count one

was complete before November 1, 1987, the effective date of the

Sentencing Guidelines. The district court made a factual finding

that count one continued past November 1, 1987, and therefore,

applied the Guidelines. We review this finding for clear error.

The trial court heard the testimony concerning the letter

dated November 5, 1985. Substantial evidence was offered to show

that this letter was actually prepared in late 1987 or early 1988.

Dr. Howard also testified that this letter was either prepared by

Henderson or prepared at his request. Further, evidence from the

grand jury investigation of Henderson, which was presented at the

sentencing hearing, indicated that this letter was prepared a few

months before the failure of FB&T. This evidence led the district

judge to find

that the engagement between the defendant and Dr. Howard
occurred in and after November of 1987 based upon what I
heard at trial and based upon what you presented here in
court; and if you find something in there different than
that, then, read it to me. I would like to hear it.
But what I heard so far is that it was about the
time the bank failed, which was in March of `88, or a few
months prior to that. A few to me means three or less;

20
 and of course, that would put it back in November,
December of 1987.

Given this evidence of Henderson's continuing efforts to deceive

both FB&T and federal regulators into late 1987 or early 1988, we

do not find the district court's conclusion clearly erroneous.

C. The Amount of Loss Calculation

Henderson requested a hearing on the amount of loss. He hoped

to show that the amount calculated in the pre-sentencing report

(PSR) was incorrect. The district court denied this request, and

instead considered Henderson's written objections to the PSR and

the evidence proffered at sentencing. The district court then

adopted the calculations made in the PSR, but modified the amount

of loss to include interest on the two fraudulent loans. Henderson

renews his objections on appeal. "In examining a challenge to a

sentence based on the Guidelines, we must accept the factual

findings of the district court unless they are clearly erroneous,

but we fully review its application of the Guidelines for errors of

law." United States v. Rodriguez, 925 F.2d 107, 109-10 (5th Cir.

1991). We review the district court's denial of Henderson's

hearing request for an abuse of discretion.

We first consider the district court's denial of Henderson's

hearing request. At the outset we note that a sentencing hearing

was conducted, and that the amount of loss issue was discussed at

that hearing. Henderson's objection, therefore, goes to the form

of the hearing, and more specifically, to the district judge's

21
refusal to allow testimony at the sentencing hearing. Essentially,

Henderson requested a mini-trial, complete with exhibits, expert

witnesses, character witnesses, and an opportunity to cross examine

the government's witnesses. Refusing to conduct such a hearing

does not constitute an abuse of discretion in this case.

Henderson had an opportunity to review the PSR and file formal

objections to that report. He could have filed affidavits and

other exhibits in support of his position. At the sentencing

hearing, Henderson presented several exhibits and objected to some

of the exhibits proffered by the government. Henderson's due

process rights were protected adequately by these procedures.

We recognize the due process concerns behind this issue.

However, we believe that a sentencing court must be given deference

to determine whether a hearing is needed on particular sentencing

issues. When a hearing is necessary to protect a convicted

defendant's due process rights, then a failure to hold a hearing

would be an abuse of discretion. We do not believe Henderson's due

process rights were violated. Henderson could have presented the

sentencing judge with all the information necessary to calculate

the amount of loss without cross examining the government's

sources.

The district court calculated a $2,344,646.38 loss due to

Henderson's actions, which included the face value of both the 1985

FB&T loan and the 1986 Cy-Fair loan, plus interest on both loans.

Henderson argues that the district court should have reduced this

amount to account for value recovered, or likely to be recovered,

22
by the banks or the FDIC on these loans. Henderson further objects

to the inclusion of interest in the amount of loss.

We must first determine what procedure the district court used

to determine the amount of loss. If the district court's

calculation was an estimate of the actual loss caused by the two

loans in question,

the loss is the amount of the loan not repaid at the time
the offense is discovered, reduced by the amount the
lending institution has recovered (or can expect to
recover) from any assets pledged to secure the loan.
However, where the intended loss is greater than the
actual loss, the intended loss is to be used.

United States Sentencing Commission, Guidelines Manual, § 2F1.1,

comment. (n.7) (emphasis added).

The district court based Henderson's sentence on an intended

loss.11 This decision was based on the district judge's

understanding of the meaning of "intended loss" under the

Sentencing Guidelines. The following excerpts from Henderson's

sentencing are illustrative:

The question is did I remove something that I
shouldn't have removed, did I do something that I

11
If the district court's calculation was an estimate of the
actual loss caused by Henderson, that calculation was erroneously
performed. The district court refused to consider whether or not
the banks or the FDIC were likely to recover on the defaulted
loans.
It's not a question of whether or not--in my opinion it's
not a question of whether or not the bank has ever
collected its money or whether it's ever written off the
loss or not. It's an exposure the bank had. . . . I
think that's what the guidelines and the statute deals
[sic] with, not whether or not somebody can collect the
money or not.
No effort was made to reduce the amount of loss "by the amount the
lending institution has recovered (or can expect to recover)."
U.S.S.G. § 2F1.1 comment. (n.7).

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 shouldn't have done, are the circumstances surrounding
the loss such that any reasonable person would conclude
that there is fraud and deceit and cheating going on.
Are those the circumstances? If they are--and that's
what the jury found. If they are, then, it was a loss
that was intended because we intend the result of the
acts that we take.
That's what the law is. We intend the result of the
acts we take except in some circumstances.

We find this interpretation erroneous.

The Sentencing Guidelines refer to actual intent, not

constructive intent. "[I]f 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, comment.

(n.7). If Henderson intended to repay the banks on his loans, the

district court should not have used intended loss as the basis for

sentencing.

In United States v. Wimbish, 980 F.2d 312 (5th Cir. 1992), we

held that the face value of stolen and forged checks was properly

used as an intended loss because the victims were put at risk for

the full face value of their checks. See also, United States v.

Brown, 7 F.3d 1155, 1159 (5th Cir. 1993) (holding that full value

of stolen money orders constitute intended loss because, "the

defendant clearly intended Lomoriello to suffer a loss exceeding

$5,000.") (emphasis added); United States v. Sowels, 998 F.2d 249,

251 (5th Cir. 1993) (holding that stolen credit cards indicate an

intent to cause a loss equal to the credit limits of the cards).

These cases show that the intended loss for stolen or fraudulently

obtained property is the face value of that property.

Unlike the cases cited supra, where the defendant intends to

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repay the loan or replace the property, the intended loss is zero.

The face value of the property bears no relation to the "loss the

defendant was attempting to inflict." U.S.S.G. § 2F1.1, comment.

(n.7). Because the district court misinterpreted the meaning of

"intended loss" under the Sentencing Guidelines, we must vacate the

sentence on count one. The district court must determine if

Henderson actually intended to cause a loss to either bank, and if

so, the amount of the "intended loss". Only if this value is

greater than the actual loss to the banks should it be used to

determine Henderson's sentence.12

Some comment is necessary concerning the district court's

inclusion of interest in the amount of loss. The current

commentary to the Sentencing Guidelines13 provides that the amount

of loss "does not, for example, include interest the victim could

have earned on the funds had the offense not occurred." U.S.S.G.

§ 2F1.1, comment. (n.7). We find that this commentary sweeps too

broadly and, if applied in this case would be inconsistent with the

purpose of § 2F1.1. Stinson v. United States, 113 S. Ct. 1913,

1919 (1993).

Interest should be included if, as here, the victim had a

12
"Where the loss determined above significantly understates
. . . the seriousness of the defendant's conduct, an upward . . .
departure may be warranted." U.S.S.G. § 2F1.1 comment. (n.7). If
both the actual loss and intended loss in this case approach zero,
the district court may choose to exercise its discretion and depart
upward from the sentence range calculated under the Guidelines.
13
This commentary was added in 1991, after the date of
Henderson's offense. It was incorporated to clarify the
Guidelines, and therefore, is indicative of the original purpose of
those provisions.

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reasonable expectation of receiving interest from the transaction.

See, e.g., United States v. Lowder, 5 F.3d 467, 471 (10th Cir.

1993) (holding that interest should be included in the amount of

loss where the defendant promised victims a specific interest rate

on their investments); United States v. Jones, 933 F.2d 353, 354-55

(6th Cir. 1991) (interest should be included where the defendant

defrauded credit card companies which had a reasonable expectation

of a specific return on the credit extended). In the words of the

district judge, "interest is a loss, a loss of earnings on money--

representing a loss of earnings on money that was--that rightfully

belonged to the bank and therefore should be also included." 11 R.

42-43. We find no error in the district court's decision to

include interest in the amount of loss in this case.

Henderson's sentence under count one was calculated in

accordance with the Sentencing Guidelines, and therefore, is based,

in part, on the amount of loss. The other four sentences were not

based on the Guidelines, but may include consideration of the loss

attributable to Mr. Henderson. We therefore VACATE Henderson's

sentences and REMAND for resentencing. Because we find the method

used to calculate the amount of loss flawed, we do not reach the

question of whether or not the result of that calculation was

clearly erroneous.

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