                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 8 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 95-5210
 v.                                                (D.C. No. 95-CR-9-B)
                                                       (N.D. Okla.)
 STEVEN LEE PYRON,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.



      After examining the briefs and appellate record, this 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 case is therefore

ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the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 judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Mr. Pyron was convicted by a jury of three counts of 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 Criminal 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 range between $70,000 and $120,000.



      On appeal, Mr. Pyron challenges the trial court's decision to exclude

portions of testimony from his wife, Mrs. Pyron, on hearsay 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 contests his sentence on the

grounds the district court erred in its determination of loss for purposes of the

Sentencing Guidelines. After consideration on appeal, we affirm Mr. Pyron's

conviction and sentence.



I. Background

      In the indictment, Mr. Pyron was charged with scheming 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.


                                          -2-
Pyron defrauded investors and diverted the money for his own personal use. Mr.

Pyron, through his company, Serene Oil, solicited investors for the "Misener

Sandstone project." The investors in the Misener project were contacted by

telephone, and were told that in exchange for their investment a well would be

drilled and they would receive a working interest in the oil well. At trial,

evidence was introduced showing that despite the money invested in the Misener

project, and despite his representations to the contrary, 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. Pyron left Oklahoma for

Kentucky at the same time investors were attempting to contact Mr. Pyron

regarding the status of their investments. Mr. Pyron 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 project, 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 district court erred in failing to


                                          -3-
admit the testimony under Fed. R. Evid. 803(3), the state of mind exception to the

hearsay rule.



      Evidentiary rulings rest within the sound discretion of the trial court, and

we review those decisions only for an abuse of that discretion. United States v.

Tome, 61 F.3d 1446, 1449 (10th Cir. 1995). "Our review is especially deferential

when the challenged ruling concerns the admissibility 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 generally 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 physical condition ..., but not

including a statement of memory or belief to prove the fact remembered or

believed," is admissible as an exception to the hearsay rule. Here, Mr. Pyron

argues his wife's testimony fit the exception because it showed his lack of intent

to evade his investors. We disagree.



      Fed. R. Evid. 803(3) allows a declarant's out of court statement not to prove

the matter asserted, but to show a future intent of the declarant to perform an act


                                          -4-
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 words,

statements of intent are admissible to provide a foundation 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 fact, 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 extent they were offered to show Mr.

Pyron performed an act in conformity with his intent.



        Second, Mr. Pyron's statements did not express any "intent" as to whether

he intended to defraud his investors; he merely expressed 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 father 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 fit within the parameters of

Rule 803(3). We hold because the statements do not fit the confines of Fed. R.

Evid. 803(3), the district court did not abuse its discretion in failing to admit

them.


                                          -5-
      Mr. Pyron attempts to argue the district court erred in excluding the

testimony on the grounds it was hearsay. However, the court excluded the

testimony on the grounds the out of court statement was offered to prove the

matter asserted and did not fit the Fed. R. Evid. 803(3) exception. Mr. Pyron

argues because the statements fit Rule 803(3) it was irrelevant whether the

statements were offered for their truth. This argument fails, however, because, as

the district court properly held, the statements did not fit the hearsay exception of

Rule 803(3). We hold the district court did not abuse its discretion in excluding

the testimony based on hearsay.



III. Calculation of Loss

      Mr. Pyron argues the district court erred in its calculation of loss.

Specifically, Mr. Pyron challenges the district court's inclusion in the calculation

of loss the following two amounts: 1) Gerald Altobelli's and Roger Hutchinson's

investment of $8,894 in the "Pettiquah Project"; and 2) Daniel Cameron's

investment of $18,412 into the "Watson Project" in Cowley County, Kansas.

Consequently, Mr. Pyron maintains the proper loss figure 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).




                                          -6-
      Neither the Pettiquah Project nor the Watson Project were part of the

charged conduct. Instead, evidence of Mr. Pyron's conduct regarding the

Pettiquah Project was admitted as "similar acts" evidence 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 calculating loss.



      Section 2F1.1 of the United States Sentencing Guidelines provides for an

increase in a defendant's base offense level for the amount of "loss" suffered by

the defendant's victims. USSG § 2F1.1 (1994). Generally, "loss" is "the value of

the money, property, or services unlawfully taken." Id., comment. n.7. For

purposes of sentencing, the district court need not determine loss with precision.

Rather, "[t]he court need only make a reasonable estimate 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 scope 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 amount 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;


                                         -7-
United States v. Abud-Sanchez, 973 F.2d 835, 838 (10th Cir. 1992). "'A finding

of fact is "clearly erroneous" if it is without factual 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 including Mr. Altobelli's and

Mr. Hutchinson's investments in its calculation of loss because they both have

their interests in the projects, were never promised any "money from the working

interest," technically received what they had bargained 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 court erred when it included the

investments in the calculation of loss for the purpose of sentencing. We disagree.



      The trial record shows the government sustained its burden of establishing

Mr. Altobelli's and Mr. Hutchinson's investments constituted 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 investments, and were told all

monies they invested would be used to restore the Pettiquah Project to productive


                                           -8-
capacity. However, the government introduced evidence showing Mr. Pyron

diverted investor money to pay personal expenses. Also, evidence was introduced

showing that Mr. Pyron induced investments in the Pettiquah Project by

representing he would rework the wells at the project and would be the operator

of the Pettiquah Project. However, evidence was introduced 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 Pettiquah investments

represent "money ... unlawfully taken," we hold the government has sustained its

burden and the district court was not clearly erroneous in including the Pettiquah

investments in its calculation of loss. USSG § 2F1.1 comment. n.7.



      Mr. Pyron also challenges the district court's inclusion of Mr. Cameron's

investment of $18,412. The district court estimated loss as between $70,000 and

$120,000 based on the presentence report's calculation 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 court's estimation of loss as




                                         -9-
between $70,000 and $120,000 regardless of Mr. Cameron's investment. 1

Therefore, because the record supports the district court's estimation of loss

regardless of Mr. Cameron's investment, we need not address Mr. Pyron's

challenge to the district court's calculation of loss 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




      1
        Indeed, when assessing loss with regard to Mr. Cameron's investment, the
court seemed to indicate the record supported the loss 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 guideline range which requires
adding of six points to the base offense level." We agree.


                                         -10-
