United States v. Twitty

United States Court of Appeals,

Eleventh Circuit.

No. 94-3563.

UNITED STATES of America, Plaintiff-Appellee,

v.

Thomas J. TWITTY; John E. Watson, a.k.a. Jack Watson; John P.
Larrison, a.k.a. Jack Larrison; G. Richard Leveritt, Defendants-
Appellants.

March 21, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 92-64-CR0T-25A), Henry Lee Adams, Jr.,
District Judge.

Before EDMONDSON and BLACK, Circuit Judges, and HILL, Senior
Circuit Judge.

HILL, Senior Circuit Judge:

Appellants were convicted of conspiracy and bank fraud. Two

appellants were also convicted of money laundering. For the

following reasons, we affirm each appellant's conviction and

sentence.

I. BACKGROUND

Thomas J. Twitty, John E. Watson, G. Richard Leveritt, and

John P. Larrison were partners in a joint venture to develop a real

estate project in Pinellas County, Florida, called "Hamlin's

Landing." The development included office/commercial space, retail

space, a marina, a restaurant, and time-share condominiums. On

March 6, 1985, Twitty and Larrison signed a Real Estate Mortgage

Loan Application and submitted it to Freedom Federal Savings and

Loan Association (Freedom) to obtain financing for the project.

The application stated that "[t]he 42 condominiums must be 50%

pre-sold prior to closing with minimum 10% non-refundable binders."
 On April 9, 1985, Twitty submitted a status report to Freedom

showing the names of the "purchasers" of the condominium units.

The list showed twenty contracts in the name of Jewel Roome, ten in

the name of Dr. Neil Feldman, and two in appellant Watson's name.

On April 22, 1985, Twitty wrote Freedom stating:

Thirty-nine (39) out of 42 units are presently contracted for.
The response from our advertising indicates a strong market
for our townhome product from the financially independently
secure as to a viable place to own and live and do business.
The entrepreneur has shown strong interest of locating home
and business to (sic) together at this location.

On May 2, 1985, Freedom issued a commitment letter in which it

agreed to lend the joint venture money to build Hamlin's Landing,

but only if Twitty and the others promised to meet certain

conditions. Chief among the conditions was the pre-sale of

twenty-one of the proposed forty-two condominiums in binding,

non-contingent contracts, to bona fide third parties, with ten

percent down payments. Group sales would count only half the

number of actual units sold. Freedom also required that 100% of

the sales price on each condominium be paid to it before Freedom

would release its hold on that condominium.

The evidence at trial was that Roome and Feldman were not bona

fide purchasers. Each was induced to sign purchase agreements for

condominiums, but was told that they would never have to close on

the contracts. They were told that the joint venture would

arrange, guarantee, and pay all costs associated with the contracts

and any debts Roome and Feldman might incur in making the down

payments on the contracts. They were each rewarded with a discount

toward the purchase of a $120,000 partnership unit in Hamlin's

Partners, Ltd.
 Sometime in the spring of 1985, Roome consulted with a lawyer

who advised her to rescind her twenty purchase agreements. Her

counsel contacted Watson and demanded that the joint venture

rescind Roome's contracts, threatening to contact Freedom directly.

On June 3, 1985, Watson agreed to rescind Roome's purchases.

On June 5, 1985, Twitty's counsel sent Freedom another status

report still showing Roome contracting to buy twenty condominium

units. At another meeting later in June, Twitty assured Freedom

that Roome actually was planning to close on her twenty

condominiums and that she had the financial ability to do so.

Without Roome's twenty contracts, the joint venture did not

have enough pre-sales to satisfy the conditions set by Freedom for

the financing. The loan was set to close in July of 1985.

Larrison went to Watson's law firm and offered to pay people

working in the firm to sign the pre-sale contracts. He recruited

three lawyers and the office manager and offered each $5000 to sign

on as a straw purchaser. Each was promised he would not have to

incur any expenses, that a loan would be arranged to pay the down

payment, and that he would not have to close on the unit. Each

executed a purchase contract and received a $5000 payment drawn on

a bank account controlled by Leveritt. Subsequently, one of the

lawyers refused to go through with the deal, telling Larrison that

he thought the submission of the "purchase agreements" to Freedom

would constitute bank fraud.

Twitty sent Freedom another status report on July 15, 1985,

shortly before the July 31, 1985, scheduled loan closing. By this

time, Roome's name was off the list, but the list included the
names of the people from Watson's law firm and others who had side

agreements to sign over the purchase contracts to the partnership

at its direction. Twitty represented that these purchasers had

placed or would place cash deposits, although in fact the

defendants, themselves, had funded the down payments.

On July 31, 1985, the loan closed. Twitty and Larrison signed

the Loan Agreement. They represented to Freedom in the Agreement

that the borrowers had not defaulted under any of the loan

documents and that they knew of no event of default that would

occur after the passage of time. The Agreement defined "event of

default" to include the borrowers' failure to perform any condition

in the Loan Agreement or other loan documents. Freedom was not

aware of the side agreements and did not know that the partnership

had "fronted" the down payments on the pre-sale contracts.

Freedom required the borrowers to place $1 million of the loan

proceeds in a collateral account at Freedom. The borrowers had

agreed to allow Freedom to hold $620,000 of that amount until the

condominium loan of $6.2 million was repaid. The borrowers were

permitted to draw against the remaining $380,000 for cost overruns

in the project. For the borrowers to withdraw money from the

account, at least one representative from Freedom had to endorse

the request.

In early 1987, only the $620,000 remained in the collateral

account. In February of 1987, Twitty and Larrison went to a branch

office of Freedom and changed the signature card to show that only

Twitty and Larrison were required to sign to withdraw funds from

the collateral account. Then, on March 2, 1987, they withdrew
$520,000 from the account, contrary to the terms of their agreement

with Freedom.

Some time later, Twitty, Larrison, Watson, and Leveritt

contacted the straw purchasers and directed them to write letters

to Freedom asking to rescind their purchase contracts. Upon

Twitty's authorization, the escrow agent returned the down payment

money to the partnership, not to the alleged purchasers.

After Hamlin's Landing was completed, the borrowers never

repaid any of the $6.2 million they were supposed to recover from

the sale of the condominiums. In 1988, Freedom filed an action to

foreclose on the development. Then Freedom itself went into

receivership. The Resolution Trust Corporation (RTC) took it over,

and substituted itself as plaintiff in the foreclosure action.

On April 10, 1992, a federal grand jury returned a five-count

Superseding Indictment charging Twitty, Watson, Leveritt, and

Larrison with making false statements to a financial institution

and bank fraud. After many months, the defendants mounted a

successful challenge to the indictment based upon the theory that

the charges were duplicitous.

On March 31, 1994, the grand jury returned a Second

Superseding Indictment against the defendants. This indictment

charged each of the defendants with one count of conspiracy to make

knowingly false statements to a federally insured financial

institution and executing a scheme to defraud a federally insured

institution (18 U.S.C. § 371). The defendants were also charged

with one count of knowingly executing and attempting to execute a

scheme to defraud a financial institution, and obtaining funds from
that institution by false or fraudulent representations (18 U.S.C.

§§ 2 and 1344). Finally, Twitty and Larrison were each charged

with five counts of money laundering (18 U.S.C. §§ 2 and 1957).

In May of 1992, each of the defendants executed a waiver of

his right to a speedy trial. Twitty, Watson, and Larrison each

executed an indefinite speedy trial waiver; Leveritt waived his

right to a speedy trial through November 1992. The trial began May

9, 1994. Each defendant was convicted on all counts. At

sentencing, the district court ordered each to pay restitution.1

Appellants raise many issues on appeal. We find no merit in

most of these issues.2 We address the issues of denial of speedy

trial as to Leveritt; sufficiency of the evidence as to each

appellant's intent to defraud; and the sufficiency of the

restitution orders.

II. DISCUSSION

A. Leveritt's Right to Speedy Trial

1. Leveritt's Statutory Right

The Speedy Trial Act requires that the trial of any indicted

defendant commence within seventy days from the later of either the

filing date of the indictment or the date on which the defendant

1
Twitty and Larrison each received eighteen months
incarceration. The district court sentenced Leveritt to three
years probation, and Watson to six months home confinement and
three years probation.
2
These issues include: whether the prosecution violated the
ex post facto clause; whether the prosecution was barred by res
judicata; whether the district court erred in several of its
evidentiary rulings; whether the second superseding indictment
was multiplicitous; whether the jury instruction on the money
laundering counts was erroneous; and whether effective
assistance of counsel was denied. As we find no merit in any of
these issues, we do not discuss them.
first appears before the court in which that case is pending. 18

U.S.C. § 3161(c)(1). The period of delay "resulting from any

pretrial motion, from the filing of the motion through the

conclusion of the hearing on, or other prompt disposition of, such

motion" is excluded from the computation of this seventy-day limit.

§ 3161(h)(1)(F). The day that a pretrial motion is filed and the

day on which the motion is decided by the court are excluded from

the seventy-day clock. United States v. Elkins, 795 F.2d 919, 924

n. 1 (11th Cir.), cert. denied, 479 U.S. 952, 107 S.Ct. 443, 93

L.Ed.2d 391 (1986). Delays resulting from co-defendants' motions

are excludable time as to each co-defendant. United States v.

Mejia, 82 F.3d 1032, 1035 (11th Cir.1996); United States v. Sarro,

742 F.2d 1286 (11th Cir.1984). Section 3161(h)(8)(A) also excludes

any period of delay resulting from a continuance granted by a judge

at the request of a defendant or his counsel if the continuance

serves the "ends of justice." We review a claim under the Speedy

Trial Act de novo. United States v. Vasser, 916 F.2d 624 (11th

Cir.1990), cert. denied 500 U.S. 907, 111 S.Ct. 1688, 114 L.Ed.2d

82 (1991).

Leveritt waived both his statutory and constitutional rights

to a speedy trial through November 1992. The speedy trial clock

was set to start running for him, therefore, on December 1, 1992.3
On November 19, 1992, however, the government filed a motion for

continuance based upon the illness of an essential witness.4 The

3
The time prior to Leveritt's waiver is also excludable
because Larrison filed a discovery motion prior to Leveritt's
arraignment, which stopped the speedy-trial clock.
4
The witness had a viral infection in a heart valve.
government requested a six-week continuance. The district court

granted the continuance the same day, but set no definite length,

stating, "[t]he need for a continuance outweighs the defendants'

interest in a speedy trial. This case will be set for trial by

future order."

No party requested the court to set a new trial date until May

5, 1993, when the government moved the court to set trial for a

date certain in July or August. Watson responded, objecting to

these dates and requesting that trial not be set prior to September

20, 1993. Larrison also moved the court to set trial after

September 20, 1993. Both cited the unavailability of their counsel

prior to that time and the need for time to prepare for trial. The

district court did not enter a written order, but neither did it

set the trial on the July or August calendars.5

On September 15, 1993, Twitty filed another pretrial motion.

This motion prevented the speedy trial clock from re-starting on

September 20. The motion remained under advisement when, on

September 27, 1993, Larrison filed a notice of supplemental

authority in support of his previous motions to dismiss. Because

the court permitted Larrison to file this authority, the government

had ten days to respond, and the motion was under advisement for

5
Section 3161(h)(8)(A) excludes any period of delay
resulting from a continuance granted by a judge at the request of
a defendant or his counsel if the continuance serves the "ends of
justice." Although the district court did not cite any reasons
for granting these requests, the grounds cited in the motions
plus the court's grant of a continuance as requested support the
inference that the continued delay was to serve the ends of
justice. See Elkins, 795 F.2d at 923 (despite lack of written
order on defendant's motion for continuance, record was
sufficient for court to determine that the continuance was
granted in the "ends of justice").
thirty days after that. See United States v. Davenport, 935 F.2d

1223, 1228-29 (11th Cir.1991) (time in which the court authorizes

the filing of supplemental materials is excluded without regard to

its reasonableness because matter not yet under advisement). Thus,

the speedy trial clock remained stopped from September 15 through

November 6, 1993. Since November 6 was a Saturday, the clock was

stopped through Monday, November 8, 1993.

The government concedes that one non-excludable day passed on

November 9, 1993. Then, on November 10, Twitty filed another

pretrial motion stopping the clock again. This motion remained

under advisement when the government filed a motion on December 10

and when Larrison's counsel moved to withdraw on December 13.

Larrison's motion was granted on December 15 and the government's

was resolved on December 22.

At this point, the speedy trial clock began to tick again and

twenty-two days elapsed before the government filed an in camera

application for an ex parte order on January 14, 1994. This motion

remained under advisement when Larrison moved to consolidate counts

four through eight on January 24, 1994. Larrison's motion to

consolidate was under advisement when Larrison moved for a

continuance on February 15, 1994. Larrison asked for the trial to

be continued to the October 1994 trial calendar. On February 18,

1994, the district court granted Larrison's motion, finding that

because Larrison's counsel was newly-appointed, the ends of justice

served by granting the motion outweighed the defendants' interest

in a speedy trial. The court set the trial for the May 1994 trial

term, and the case actually went to trial on May 9, 1994.
 The maximum number of non-excludable days which passed between

May 5, 1993, and the start of Leveritt's trial was thirty-three. 6
This leaves thirty-seven days within the seventy-day limit. The

initial continuance, which lasted from December 1, 1992, until May

5, 1993, substantially exceeds thirty-seven days. Unless this

period of time is excludable,7 Leveritt's statutory right to a

speedy trial was denied.

The district court's order granting the government's motion

for a continuance stated:

Presently, the government seeks a continuance on the basis of
the ill health of an essential witness. Upon review of the
government's motion, the Court finds that the testimony of
Neil T. Feldman is essential ... and ... (he) is unavailable
to testify due to serious illness. The Court therefore finds
that the need for continuance outweighs the defendants'
interest in a speedy trial. This case will be set on a trial
calendar by future order.

There is no dispute that the district court made the required

determination that the ends of justice would be served by granting

the continuance. Leveritt argues, however, that the excludable

length of the continuance was only the six-week period requested in

the government's motion. If so, the non-excludable portion of the

continuance would exceed the thirty-seven days remaining on the

speedy trial clock.

The district court, however, stated that it would set the

6
The government maintains that only 23 non-excludable days
passed, but Leveritt disputes the government's contention that
its filing of an in camera application for an ex parte order
stopped the clock for ten days under § 3161(h)(1)(F). We do not
reach this dispute because its resolution would not affect the
outcome.
7
Alternatively, at least all but thirty-seven days must be
excludable time.
trial "by future order." This is an open-ended, not merely a

six-week, continuance. An open-ended continuance may be granted to

serve the ends of justice. We have held:

There is no fixed limit to the amount of time that may be
excluded under the ends of justice provision. The provision
excludes "any period of delay resulting from a
continuance...." § 3161(h)(8)(A) (emphasis added).

Vasser, 916 F.2d at 627. If the trial court determines that the

"ends of justice" require the grant of a continuance, and makes the

required findings, any delay is excludable under § 3161(h)(8)(A) of

the Speedy Trial Act. See Elkins, 795 F.2d at 923.

Although "a defendant has no duty to bring himself to trial,"

Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190, 33 L.Ed.2d

101 (1972), Leveritt could have objected to the delay caused by the

open-ended nature of the continuance, but did not. Cf. Mejia, 82

F.3d at 1036 (upholding open-ended continuance and noting defendant

could have objected). The length of the delay resulting from the

continuance in this case does not constitute a per se violation of

the Speedy Trial Act, nor is it unprecedented. See e.g.,

Davenport, 935 F.2d at 1228-29 (six-month delay excludable);

United States v. DiTommaso, 817 F.2d 201, 210 (2nd Cir.1987)

(seven-week delay excludable); United States v. Savoca, 739 F.2d

220, 223 (6th Cir.1984) (six-month delay excludable).8

8
We note that on May 5 when the government notified the
court that the continuance was no longer necessary and moved to
set the trial for a date certain in July or August, Watson and
Larrison filed motions requesting the court not to set trial
before September 20. Leveritt filed no objection to these
motions. We infer from this series of events that, at the time,
Leveritt did not find the continuance to be unreasonable. In
fact, by his actions he indicated to the court that a further
continuance would be reasonable.
Accordingly, we hold that the continuance granted on November 19,

1992, served to exclude all time until May 5, 1993, when the

government moved the district court to set the case for trial.

As only a maximum of thirty-three non-excludable days elapsed

between the defendants' indictment and the start of trial,

Leveritt's prosecution did not violate his rights under the Speedy

Trial Act.

2. Leveritt's Constitutional Right

Leveritt claims that the delay in this case violates his

right under the Sixth Amendment to a speedy trial. A delay of

sufficient length may be a constitutional violation, even though it

is not a violation of the Speedy Trial Act. United States v.

Beard, 41 F.3d 1486, 1488 n. 6 (11th Cir.1995). Although

compliance with the Speedy Trial Act does not bar Sixth Amendment

speedy trial claims, "it will be an unusual case in which time

limits of the Speedy Trial Act have been met but the Sixth

Amendment right to a speedy trial has been violated." United

States v. Nance, 666 F.2d 353, 361 (11th Cir.1982), cert. denied,

456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982).

Four factors underlie a constitutional claim of denial of

speedy trial: the length of the delay, the reason for the delay,

the defendant's assertion of his or her right to a speedy trial,

and the prejudice to the defendant. Barker, 407 U.S. at 530, 92

S.Ct. at 2192. The length of the delay must be "presumptively

prejudicial" to trigger an inquiry into the other three factors.

Ringstaff v. Howard, 885 F.2d 1542 (11th Cir.1989), cert. denied,

496 U.S. 927, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990).
 In this case, more than two years elapsed between Leveritt's

indictment and the beginning of his trial. This amount of time is

sufficient to trigger inquiry into the other three Barker factors.

Leveritt suggests that the delay in this case was the result

of the government's and the district court's negligent failure to

monitor the case. The record reveals that the delay was the result

of: numerous pretrial motions; the illness of an essential
9
government witness; Larrison's substitution of counsel; and

scheduling conflicts resulting in the unavailability of certain

defense counsel. There is no suggestion that the delay was due to

the bad faith or dilatory purpose of the government. Nor was the

illness of the government's witness under its control. The

unavailability of certain defense counsel cannot be charged to the

government. Therefore, the reasons for the delay in this case do

not militate in favor of finding a violation of the Sixth

Amendment. See United States v. Loud Hawk, 474 U.S. 302, 316, 106

S.Ct. 648, 656-57, 88 L.Ed.2d 640 (1986).

Furthermore, Leveritt did not assert his right to a speedy

trial in a timely fashion. He filed his motion to dismiss on the

day trial was to begin. The failure to assert the constitutional

right to speedy trial is weighed heavily against the defendant.

Doggett v. United States, 505 U.S. 647, 653, 112 S.Ct. 2686, 2691,

120 L.Ed.2d 520 (1992). At no time did Leveritt object to any

continuance granted, nor to co-defendants' motions requesting

additional delay. Neither did he request severance so that he

9
Larrison's original counsel was appointed to the state
court bench.
could proceed to trial more speedily. Only on the day of trial,

did Leveritt seek to escape prosecution based upon the length of

these delays. This factor, also, then, militates against finding

a constitutional violation.

Finally, Leveritt fails to identify any actual prejudice he

suffered from the delay, relying instead on an argument that the

two-year delay presumptively prejudiced his defense. While it is

true that "affirmative proof of particularized prejudice is not

essential to every speedy trial claim," Doggett, 505 U.S. at 655,

112 S.Ct. at 2692, where the other factors do not indicate a

constitutional violation, a defendant must show he suffered actual

prejudice from the delay. See Loud Hawk, 474 U.S. at 316, 106

S.Ct. at 656-57. Leveritt's failure to do so does not support his

claim.

The government was neither negligent nor purposefully dilatory

in this prosecution. Leveritt failed both to assert his

constitutional speedy trial right in a timely fashion and to

identify actual prejudice to his defense from the delay in this

case. Accordingly, we hold the Sixth Amendment was not offended by

his prosecution.

B. Sufficiency of the Evidence

Appellants were convicted of making false representations to

Freedom. The government based its case upon the theory that the

representations made to Freedom concerning pre-sales of the

condominiums were false. Paragraph 15(c) of the Commitment Letter

sent by Freedom to Twitty provided:

At least ten (10) days prior to closing, Borrower shall submit
evidence satisfactory to Freedom that Borrower has entered
 into binding non-contingent contracts for sale with bona fide
third party purchasers for at least twenty-one of the
condominiums to be built with the proceeds of this loan.
Freedom shall have the right to review the terms of the
contracts. All such contracts for sale shall be accompanied
by a deposit of no less than ten percent (10%) of the sales
price, which shall be placed in an escrow account with
Freedom. In meeting this pre-sale requirement, Borrower will
be given credit for only fifty (50%) of the units purchased by
any person or entity which purchases more than one unit.

The charges against the defendants were based upon the

government's contention that they intentionally defrauded Freedom

by deliberately misrepresenting that they met the terms of this

paragraph, i.e., that they, in fact, had entered into "binding

non-contingent contracts for sale with bona fide third party

purchasers for at least twenty-one of the condominiums." The

government sought to prove its case by introducing evidence that

appellants recruited and induced people to execute purported

purchase agreements for condominiums by: (1) either making the

down payments for them or guaranteeing loans to them for that

purpose; (2) promising these "purchasers" they would not sustain

any out-of-pocket expenses; (3) giving them cash payments of

$5,000 to execute purchase agreements; (4) promising them they

would never have to close on the purchase agreements; and (5)

offering them attractive opportunities to obtain participation in

the enterprise.

Appellants contend that, even if all this evidence is

credited, the government still has not proved its case because the

evidence does not establish the specific intent to defraud required

by the statute. Appellants argue that the evidence was that the

pre-sale requirements found in Paragraph 15(c) were merely

aspirational, contained vague terms, and were, in any event,
considered immaterial and waived by Freedom. Furthermore,

appellants argue that even under the government's interpretation of

Paragraph 15(c), appellants made no misrepresentations as Freedom

could have and should have discovered all the facts proven at trial

by making its own pre-loan inquiries. The sufficiency of the

evidence is an issue of law subject to de novo review. United

States v. Smith, 918 F.2d 1551, 1564 (11th Cir.1990).

At the outset, we reject the argument that, at the most, what

appellants did in this case amounts to non-disclosure, which does
not satisfy the statutory requirements to constitute the offense.

What appellants did10 was to represent to Freedom that they met the

conditions set out in Paragraph 15(c). This is more than

non-disclosure. This is an active misrepresentation unless, as

appellants also claim, the conditions set out in Paragraph 15(c)

were either so vague that appellants cannot be said to have

violated them, or immaterial to the bank and waived by it.

10
We also reject Watson's contention that, because the
evidence did not show that he himself actually made false
statements to Freedom, he is not guilty of the offense. Watson
was indicted under 18 U.S.C. § 2, which renders him guilty as a
principal if he aided, abetted, or counseled the commission of
the fraud against Freedom. The government also charged Watson
with conspiracy. The conspiracy charge required the government
to prove that the conspiracy existed, that the defendants knew of
the conspiracy, and that they voluntarily joined in the
conspiracy. United States v. Hernandez, 896 F.2d 513 (11th
Cir.), cert. denied, 498 U.S. 858, 111 S.Ct. 159, 112 L.Ed.2d 125
(1990). All the government need prove to establish the offenses
charged in this case is that Watson knew that some financial
institution was lending money for financing of the condominium
project, knew that down payments were required in connection with
the loans, knew that a scheme of some sort existed to make it
appear the down payments were being made, when, in fact, they
were not, and that he willfully participated in the scheme.
United States v. Brandon, 17 F.3d 409 (1st Cir.1994). Proof of
participation in each and every act in furtherance of the
conspiracy is not necessary. Id.
 The crux of appellants' argument as to Paragraph 15(c) is that

the term "bona fide" purchaser was not defined, was interpreted

differently by various Freedom loan officers in their testimony at

trial, and, therefore, would not exclude their purchasers. If

their actions amounted to representations to Freedom that they met

the conditions contained in Paragraph 15(c), they argue this was

not a misrepresentation.

Appellants base this argument on their theory that Paragraph

15(c) did not require the purchasers to put up their own money as

a down payment, and could not require the "purchasers" actually to

close on their condominiums. Failure to close might forfeit the

purchasers' deposits, but nothing more. Appellants conclude from

this that they made no misrepresentations to Freedom; with

appellants' straw-purchasers, Freedom was in exactly the same

position it would have been with non-straw-purchasers who

originally intended to close and subsequently changed their minds.

The evidence at trial, however, was that appellants knew that

the purpose of Paragraph 15(c) was to enable Freedom to evaluate

the demand for the condominiums prior to loaning money to

appellants. The fact that Freedom might not have been able to

enforce the pre-sale purchase agreements is not relevant. What

mattered to Freedom was that the purported purchasers be "bona

fide" third parties willing to put up a ten percent down payment

which would be forfeited upon breach of the agreement. Such a

purchaser indicates real interest in the development. Pre-sales of

more than half of the units offered indicates real demand, and
justifies the risk of extending financing to the developers.11

Appellants entered into a scheme essentially to fabricate the

requisite pre-sales. They deliberately misrepresented their

pre-sale purchasers as third parties who genuinely sought to buy

the units contracted for, knowing all the while that the pre-sales

were not sales at all but paper transactions with straw purchasers.

In order to convict appellants of bank fraud, the government was

required to prove that they intended to defraud Freedom. United

States v. Moede, 48 F.3d 238, 241 (7th Cir.1995). There is more

than ample record evidence to support this conclusion.

Finally, appellants argue that under United States v. Brown,

79 F.3d 1550 (11th Cir.1996), Freedom had a duty to inquire about

the "bona fides" of their purchasers. Appellants cite Brown for

the proposition that a party is not defrauded if a person of

ordinary prudence could have confirmed the representations from

readily available external sources. Id. at 1559. They argue that

Freedom could have called any of the pre-sale purchasers listed on

the status reports appellants submitted to it and discovered all

the side agreements between appellants and their purchasers.

Brown does not apply to this case. In Brown, a developer

misrepresented the value and potential rental income of its homes

to customers. We noted that there was no fiduciary duty between

these parties such that the developer had an affirmative duty to

disclose alternative pricing structures. Id. We held that persons

11
If Twitty had been telling the truth about having already
presold thirty-nine of the forty-two condominiums to be built (at
$175,000 per condominium), the developers would have been able to
pay off $6.2 million of the construction loan as soon as they
completed the project.
of ordinary prudence should not, therefore, have relied upon these

representations.

The circumstances of this case are quite different. Here

appellants have affirmatively misrepresented their compliance with

a series of requirements established by their lender as a condition

for the loan. A lender in such a circumstance is entitled to rely

on the representations of the applicant even though no fiduciary

relationship exists. See Pelletier v. Zweifel, 921 F.2d 1465,

1498-99 (11th Cir.1991). We reject this extension of Brown.

C. The Restitution Issue

The Victim and Witness Protection Act, 18 U.S.C. §§ 3663-3664

authorizes restitution to victims of crimes and specifically

directs a sentencing judge to consider not only the victim's

injury, but also "the financial resources of the defendant, the

financial needs and earning ability of the defendant and the

defendant's dependents, and such other factors as the court deems

appropriate." § 3664(a); see also United States v. Barnette, 10

F.3d 1553, 1556 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct.

74, 130 L.Ed.2d 28 (1994). The district court must evaluate the

defendant's financial condition and ability to pay before

determining the restitution amount. United States v. Cobbs, 967

F.2d 1555, 1558 (11th Cir.1992); United States v. Stevens, 909

F.2d 431, 435 (11th Cir.1990). Restitution orders must be "in

accordance with sections 3663 and 3664." 18 U.S.C. § 3556;

Barnette, 10 F.3d at 1556.

Although Watson, Leveritt, and Larrison did not contest their

ability to pay restitution at sentencing, they, along with Twitty,
challenge the restitution orders on appeal. Appellants claim that

the restitution orders are defective because they are not

sufficiently supported by findings of fact on the record regarding

each appellant's ability to pay. We review a district court's

restitution order for abuse of discretion. United States v. Husky,

924 F.2d 223, 225 (11th Cir.), cert. denied, 502 U.S. 833, 112

S.Ct. 111, 116 L.Ed.2d 81 (1991).

Freedom's loss as a result of appellants' failure to repay

their loan amounted to approximately $15 million dollars, not

including interest. The RTC recovered $3.7 million from the
12
foreclosure sale. The district court ordered each of the

defendants to pay restitution of $11.3 million. This calculation

of the amount of the loss was fair to the defendants. See United

States v. Norris, 50 F.3d 959 (11th Cir.1995).

District courts are not obligated to make explicit factual

findings of a defendant's ability to pay restitution if the record

provides an adequate basis for review. United States v. Hairston,

888 F.2d 1349, 1352-53 (11th Cir.1989); accord United States v.

Lombardo, 35 F.3d 526, 529-30 (11th Cir.1994). Conversely, "we

will not uphold the district court's exercise of discretion if the

record is devoid of any evidence that the defendant is able to

12
We reject appellants' argument that their settlement with
the RTC in which they were absolved from future liability for the
claims which were the subject of the civil suit precludes any
restitution order in this case. "Restitution is not a civil
matter; it is a criminal penalty meant to have strong deterrent
and rehabilitative effect." United States v. Hairston, 888 F.2d
1349, 1355 (11th Cir.1989). While a victim's receipt of partial
compensation should be considered by the trial court in forming
the restitution order, it does not preclude the criminal court
from ordering restitution. Id.
satisfy the restitution order." United States v. Remillong, 55

F.3d 572, 574-75 (11th Cir.1995) (quoting United States v. Patty,

992 F.2d 1045, 1052 (10th Cir.1993)).13 "If the record is

insufficient, reasons must be assigned." Hairston, 888 F.2d at

1353 (quoting United States v. Patterson, 837 F.2d 182, 183-84 (5th

Cir.1988)).

Here, the district court did consider the requisite factors

before ordering restitution. Prior to sentencing these defendants,

the district court recited that it had reviewed and considered the

information in each defendant's Presentence Report (PSR), which

detailed the amount of the loss sustained by the victim, the

defendant's financial resources, and other factors enumerated in

Sections 3663-3664 as appropriate for the court to consider when

imposing restitution.14

Further findings are not required in this case because the

record provides an adequate basis for review of the restitution

orders. Remillong, 55 F.3d 574-75. The PSRs affirmatively

demonstrate that appellants are educated, experienced in business

or the practice of law, and have the likelihood of future

13
Although Larrison, Leveritt, and Watson did not dispute
their ability to pay restitution, the district court retains an
obligation to consider the defendant's ability to pay before
ordering restitution. Remillong, 55 F.3d at 574.
14
Twitty did contest his ability to pay restitution. A
defendant who disputes his ability to pay restitution bears the
burden of demonstrating his financial resources by a
preponderance of the evidence. 18 U.S.C. § 3664(e); Remillong,
55 F.3d at 575. He did not, however present any evidence at all
of his financial resources or lack of future ability to pay. As
a result, the district court was entitled to rely on the
uncontested facts contained in Twitty's PSR.
employment.15
A defendant claiming that the district judge failed to

consider a mandatory sentencing factor under Sections 3663-3664

must show either that (1) it is not improbable that the judge

failed to consider the mandatory factor and was influenced thereby,

or (2) the judge explicitly repudiated the mandatory factor.

Remillong, 55 F.3d at 576 (citing United States v. Murphy, 28 F.3d

38, 41 (7th Cir.1994)). The record affirmatively indicates that

the district court did consider appellants' ability to pay.

Appellants have not demonstrated that, despite the district court's

announcement that it had considered the information in the PSRs, it

is not improbable that he failed to consider their ability to pay.

Therefore, the district court did not abuse its discretion in

ordering restitution. See Barnette, 10 F.3d at 1556.

15
The PSRs contained the following information supporting
the orders of restitution: Watson had practiced law since 1964.
His suspension from the practice of law is only three years.
Although he reported his net worth at $84,689, he has sold his
home for 675,000 and paid off all debts. He has liquefiable
assets, and the ability to earn substantial income in the future.
He has no children to support. He received no incarceration.

Leveritt operated his own financial company, preparing
tax returns and providing advice. Although indebted now, he
was very successful for twenty years in business,
demonstrating the ability to earn substantial future income.
He has no children to support. He received no
incarceration.

Larrison has also been very successful in business,
working as a consultant and commercial real estate investor.
He has owned and operated several businesses. At the time
of sentencing, he had a small negative monthly cash flow.
He received eighteen months incarceration.

Twitty is a licensed real estate broker who made enough
money to invest millions in real estate ventures. He would
be expected to have that ability in the future. He received
eighteen months incarceration.
 III. CONCLUSION

We hold that the indefinite continuance granted by the

district court served to exclude sufficient time from the speedy

trial clock so that trial in this case began within the statutory

period. We hold there was no Sixth Amendment violation. We hold

that the evidence at trial was sufficient to support the

convictions returned by the jury. Finally, we hold that the

district court did not abuse its discretion in ordering

restitution. Accordingly, we

AFFIRM.