                United States Court of Appeals
                    For the First Circuit
                                         

No. 92-1169

                        UNITED STATES,
                          Appellee,

                              v.

                      JAMES F. BRENNAN,
                    Defendant, Appellant.
                                         

No. 92-1170

                        UNITED STATES,
                          Appellee,

                              v.

                      J. EDWARD MCHUGH,
                    Defendant, Appellant.
                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Mark L. Wolf, U.S. District Judge]
                                                  
                                         
                            Before

                  Torruella, Cyr, and Stahl,
                       Circuit Judges.
                                     
                                         

Philip  X.  Murray with  whom  Lorusso  &amp;  Loud was  on  brief for
                                               
appellant Brennan.
Wade M. Welch for appellant McHugh.
             
S. Theodore Merritt,  Assistant United States Attorney, with  whom
                   
A. John Pappalardo, United States Attorney, was on brief for appellee.
              
                                         

                         June 3, 1993
                                         

          STAHL,  Circuit Judge.   On  September 18,  1990, a
                               

federal  grand  jury  returned  a  multiple count  indictment

against defendant-appellant J. Edward McHugh, a former senior

vice-president  and loan officer of the Cambridgeport Savings

Bank  ("CSB"), and  defendant-appellant James  F.  Brennan, a

borrower of large  sums of  money from CSB.   The  indictment

charged  both  defendants with  one  count  of conspiracy  to

commit  bank  fraud and  to  willfully  misapply bank  funds;

McHugh  with one count of  bank fraud, six  counts of willful

misapplication of bank funds, and four counts of making false

entries in  bank  records; and  Brennan  with two  counts  of

making false  statements to a lending  institution, one count

of aiding and abetting McHugh's bank fraud, and six counts of

aiding and  abetting McHugh's willful misapplication  of bank

funds.  After a twenty-day trial, a jury returned verdicts of

guilty against both  defendants on  most of the  counts.   It

did,  however,  acquit  McHugh   on  two  counts  of  willful

misapplication  and  Brennan  on  one  count  of  aiding  and

abetting a willful misapplication of bank funds.  

          Following  the verdict,  the trial  judge issued  a

comprehensive, twenty-seven page memorandum and order denying

Brennan's pending motion for acquittal on all counts charged,

but granting McHugh's pending motion for acquittal insofar as

it related to  the four  counts for making  false entries  in

                             -2-
                              2

bank records.1   After a two-day  sentencing hearing, Brennan

was  sentenced to forty-one  months in prison  and McHugh was

sentenced to a year and a day in prison.

          On  appeal,  McHugh and  Brennan  raise  a host  of

challenges to the trial proceedings.  Their complaints can be

loosely  divided   into  two  categories:     (1)  there  was

insufficient   evidence   to   support   certain   of   their

convictions, and (2) a number of decisions of the trial judge

regarding the  parameters of the trial,  the admissibility of

certain   disputed  evidence,   and  the   jury  instructions

constituted   reversible  error.     Brennan   also  advances

miscellaneous   arguments   that   he   was   victimized   by

constitutionally  infirm  legal representation  at  trial and

that his  sentence was  unlawful.  After  carefully reviewing

the   voluminous   record  in   the   light   of  appellants'

contentions, we affirm.

                              I.
                                

                         BACKGROUND2
                                   

          Because attempting  to recount the evidence in this

case would  be both unnecessary and  inherently Sisyphean, we

                    

1.  McHugh's  motion, which  sought  acquittal on  all counts
charged, was otherwise denied.

2.  As  is always the case when we consider whether there was
sufficient evidence  to support  a conviction, we  review the
evidence in the  light most favorable  to the government  and
resolve all credibility issues in favor of the verdict.  See,
                                                            
e.g., United  States v. Guzman-Rivera, No.  92-1855, slip op.
                                     
at 6 (1st Cir. April 9, 1993).

                             -3-
                              3

cut to the heart of the matter.   McHugh was hired by CSB  on

May  24, 1987,  as a  senior  vice-president and  senior loan

officer  in charge  of commercial  lending.   At the  time of

McHugh's  hiring,  CSB  had  a  relatively  small  commercial

lending department.   Among other things,  McHugh was charged

with increasing the volume of commercial loans.  To that end,

CSB's Board of Investment  ("the Board") provided McHugh with

a personal lending authority of up to  $500,000 per borrower.

Commercial loans in excess of $500,000 to any single borrower

could not, however, be made without prior Board approval.

          On  June  5,  1987,  Brennan met  with  McHugh  and

requested a $70,000 unsecured loan  from CSB.3  In connection

with the  requested loan, Brennan provided CSB  with a signed

Personal Financial  Statement ("PFS").   The PFS  contained a

preamble indicating  that the borrower would  notify the bank

of material changes in his/her financial condition.  Evidence

introduced at trial revealed  that Brennan made statements on

his PFS pertaining to his income, real estate holdings, notes

payable to others, and contingent liabilities that were false

both at the time they were submitted and throughout Brennan's

relationship  with CSB.   McHugh  approved the  loan and,  in

accordance with  the agreed upon procedures,  presented it to

the Board.   The Board subsequently signed off on it.  On the

                    

3.  McHugh and Brennan had a prior business relationship when
McHugh was a senior lender at First Mutual Bank.

                             -4-
                              4

term  sheet  which was  required for  each loan  made, McHugh

noted that the purpose  of the $70,000 loan was  "[t]o assist

in  the purchase of stock  in Harbor Group,  Inc."4  Evidence

suggested,  however,  that Brennan  used  the  loan to  cover

overdrafts he had written at the Yankee Bank.

          So  began  a   relationship  that,  throughout  the

remainder of 1987,  led to the  extension of nine  additional

loans by  McHugh to Brennan, persons  closely affiliated with

Brennan, or Brennan-controlled entities.  The dates, amounts,

and persons/entities  who received these  subsequent loans we

summarize as follows:

     1.   A  July   17,  1987,   loan  to  Brennan   for
     approximately $250,000;
     2.   A  July   20,  1987,   loan  to   Brennan  for
     approximately $100,000;
     3.   An  August  3,  1987,   loan  to  Brennan  for
     approximately $500,000;
     4.   An August 11, 1987, loan to JoAnn Brennan, the
     defendant's wife, for approximately $332,000;
     5.   A September 1, 1987,  loan to Charles White, a
     friend of Brennan, for approximately $400,000;5
     6.   A September 2, 1987, loan to Joseph Hoffman, a
     business  associate  of Brennan,  for approximately
     $500,000;6
     7.   A September 22, 1987, loan to the Harbor Group
     for approximately $500,000;

                    

4.  The  Harbor  Group   was  a  Brennan-controlled   company
organized primarily to acquire and sell other companies. 

5.  Although White was the  nominal borrower of the $400,000,
the evidence reveals that the money was wired by CSB directly
to an account maintained by Brennan at the Shore Bank. 

6.  Again, although  Hoffman was the nominal  borrower of the
$500,000,  the  evidence  shows  that  the  money  was  wired
directly by CSB to Brennan's account at the Shore Bank.

                             -5-
                              5

     8.   An October 30, 1987,  loan to the Harbor Group
     for approximately $550,000; and
     9.   A  December  31,  1987,  loan  to Brennan  for
     approximately $225,000.

          Evidence at  trial revealed  that Brennan  used the

proceeds of many of these loans to pay off debts, both to CSB

and elsewhere, rather than  for the purposes recorded  on the

relevant  term sheets.  The evidence also indicated or tended

to  indicate  (1) that  many  of  Brennan's repayment  checks

bounced but were redeposited  at McHugh's direction; (2) that

McHugh  did not  bring these  loans and  their interconnected

nature  to the attention of either the Board or James Keegan,

CSB's president;  (3) that  McHugh took affirmative  steps to

conceal from  others at the bank  Brennan's problems repaying

the  loans; (4)  that McHugh  exceeded his loan  authority in

making  some  of  these  loans;  (5)  that  McHugh  made  and

structured some  of these  loans in order  to circumvent  his

lending authority, and  so that  he would not  have to  bring

them to the Board's attention; (6) that no loan  file or term

sheet  was created for the  JoAnn Brennan loan;  (7) that the

loans  to JoAnn  Brennan  and Charles  White  were made  with

little  or no inquiry into or knowledge of the named debtors'

actual  abilities  to  repay   the  loans;  (8)  that  McHugh

knowingly  caused false  purposes for  the White  and Hoffman

loans to be  recorded on  their respective  term sheets;  (9)

that  McHugh was aware that JoAnn Brennan, White, and Hoffman

expected  James Brennan to repay the loans taken out in their

                             -6-
                              6

names; (10) that the $550,000 loan to the Harbor Group, which

was guaranteed by Brennan, was made to disguise the fact that

certain  loans to  Brennan  and Brennan-controlled  interests

were delinquent; (11)  that, with regard  to the White  loan,

McHugh directed that Brennan funds be used to make an overdue

interest payment;  and (12) that,  with regard  to the  White

loan,  Brennan  furnished  CSB  with a  PFS,  purportedly  on

White's behalf, which was riddled with false statements.

           During  the first  week in  March of  1988, Keegan

became aware that many of the  aforementioned loans were both

interconnected and delinquent, ordered internal  and external

audits, and  instructed McHugh to  send letters to  the named

borrowers demanding payment.   McHugh was terminated on March

11, 1988.  The financial loss to CSB exceeded $2,200,000.

                             II.
                                

                          DISCUSSION
                                    

A.  Sufficiency of the Evidence
                               

          McHugh argues that  there was insufficient evidence

to support any  of his  convictions.   Brennan contends  that

there was insufficient evidence to support his convictions on

the counts charging conspiracy and making false statements to

a  lending  institution.7    As  we  have  noted,  after  the

                    

7.  In his  reply brief, Brennan  also expresses a  desire to
join  in McHugh's arguments  "relative to  misapplication and
multiplicity."   However, it is  well settled  that "a  legal
argument  made for  the first  time  in an  appellant's reply
brief comes too  late and  need not be  addressed."   Rivera-
                                                             

                             -7-
                              7

conclusion  of  the  trial,   the  district  court  issued  a

comprehensive, twenty-seven page memorandum and  order which,

among other things,  responded to these very  arguments.  The

memorandum and order surveyed  authority pertinent to each of

the  defendants' arguments,  reviewed  the  evidence  in  the

manner  mandated  by  the appropriate  legal  standard,8  and

clearly  articulated both  its  conclusions  and its  reasons

therefor.  We have carefully reviewed the  record and, having

employed a standard of  review which mirrors that applied  by

the district court to defendants' motions for acquittal, see,
                                                            

e.g., United States  v. St. Michael's Credit Union,  880 F.2d
                                                  

579, 584 (1st  Cir. 1989)  ("[T]he standard of  review for  a

judgment   of  acquittal   notwithstanding  the   verdict  is

identical to the test employed  to measure the sufficiency of

evidence   supporting  a   guilty  verdict.")   (brackets  in

original) (quoting  McNatt, 813 F.2d at  502), find ourselves
                          

in  complete agreement  with the  conclusions reached  by the

                    

Muriente v. Agosto-Alicea, 959 F.2d 349, 354 (1st Cir. 1992).
                         
Accordingly,  Brennan has waived the aforementioned arguments
on appeal.

8.  Quoting  United States v. McNatt,  813 F.2d 499, 502 (1st
                                    
Cir. 1987),  the district court correctly  noted the standard
under which the defendants'  motions were properly evaluated:
"The test is  whether, considering the  evidence as a  whole,
taken in the light most favorable to the government, together
with all legitimate  inferences that  can be drawn  from such
evidence, a rational  trier of  fact could  have found  guilt
beyond a  reasonable doubt."   United States v.  Brennan, Cr.
                                                        
No.  90-10235-WF, slip  op.  at 3  (D.  Mass. Oct.  3,  1991,
corrected Oct. 29, 1991).

                             -8-
                              8

district court.  We therefore  reject defendants' sufficiency

challenges substantially on the basis of the district court's

opinion.  We pause to address only one issue.

          In  arguing that there was insufficient evidence to

support his  convictions for  willful misapplication of  bank

funds9  arising out of the October 30, 1987, $550,000 loan to

the Harbor Group  and the loans  extended to White,  Hoffman,

and JoAnn Brennan, McHugh  contends that our previous opinion

in  Gens, see supra  note 9, mandates a  ruling in his favor.
                   

After careful consideration, we do not agree.

          In  Gens, several  bank officers were  convicted of
                  

willful  misapplication under  18 U.S.C.    65610  for making

                    

9.  As one commentator  has noted, "[W]illful  misapplication
is a  term that  carries no  technical  or precisely  limited
meaning."   John K.  Villa, Banking Crimes,    3.02[3][c][ii]
                                          
(1992); see also  United States  v. Gens, 493  F.2d 216,  221
                                        
(1st Cir. 1974).  It is established in this circuit, however,
that "the sine  qua non of charges of  willful misapplication
                       
of bank funds is action taken with the knowledge of harm  to,
intent  to harm,  or  reckless disregard  for, the  financial
health  of the bank."  United States  v. Fusaro, 708 F.2d 17,
                                               
21 (1st Cir.), cert.  denied, 464 U.S. 1007 (1983);  see also
                                                             
United States v. Cyr, 712 F.2d 729, 732 (1st Cir. 1983) ("[A]
                    
reckless disregard by a bank  official of his bank's interest
is sufficient to establish the requisite intent to defraud.")
(quoting United States v. Larson, 581 F.2d 664, 667 (7th Cir.
                                
1980)).   The  probability that  the  debtor will  repay  the
misapplied  funds is not legally  significant.  Cyr, 712 F.2d
                                                   
at  732.    This  authority formed  the  foundation  for  the
district   court's   jury   instructions   on   the   willful
misapplication counts.

10.  In relevant part, 18 U.S.C.   656 provides:

       Whoever,  being an  officer,  director, agent  or
     employee of, or connected  in any capacity with any
     .  . . insured bank, . . . willfully misapplies any

                             -9-
                              9

loans to  certain individuals  while aware that  the proceeds

would  be turned  over  to a  borrower  who, because  he  had

reached the  bank's lending  limit, could  not be  loaned any

more  money.  In surveying  the indictment and  charge to the

jury in that case, we first determined that the jury had been

instructed to find defendants guilty "if it  . . . found that

[defendants] granted  the loans to the  named debtors knowing

that  the proceeds would  be turned  over to  [the off-limits

borrower]."  Id. at  221.  We then reversed  the convictions,
                

noting  that "such a finding  by itself is  not sufficient to
                                       

constitute  willful  misapplication   under     656."     Id.
                                                             

(Emphasis  supplied).  In so doing, we made clear that "where

the  named  debtor  is  both financially  capable  and  fully

understands that it is his responsibility to repay, a loan to

him  cannot  -- absent  other  circumstances  -- properly  be
                                            

characterized as sham or  dummy [and therefore illegal], even

if bank officials  know he will turn  over the proceeds to  a

third  party."     Id.   at  222.     (Emphasis  supplied).11
                      

                    

     of the moneys,  funds or credits of such bank . . .
     shall   be  fined  not   more  than  $1,000,000  or
     imprisoned not more than 30 years, or both[.]

11.  On  the one count where it was unclear whether the named
debtor  understood his  repayment obligation  on the  loan at
issue, we  reversed the  conviction but  remanded  for a  new
trial.   Id. at 223-24.  On all the other counts, because the
            
evidence  revealed  that the  loans  at issue  were  to named
debtors who  clearly were financially capable  and understood
that it was their obligation to repay, we simply reversed the
defendants' convictions.  Id. at 223.
                             

                             -10-
                              10

Although we did not specifically say so, clearly underpinning

our holding  was the  belief that, without  more, a  rational

factfinder  cannot infer an intent to defraud the bank on the

part  of a  bank  official  who  simply makes  a  loan  to  a

financially  capable party who  understands his/her repayment

obligation.  See generally id. at 222-23.     
                              

     The facts here are  considerably different from those in

Gens.  As  we have  stated, there was  evidence from which  a
    

rational jury could have concluded that JoAnn Brennan, White,

and  Hoffman   did  not  themselves  expect   to  repay  CSB.

Moreover, there was evidence  suggesting that, with regard to

the JoAnn Brennan and  White loans, McHugh made little  or no

effort to determine the  actual financial capabilities of the

named debtors.12   Thus,  with regard  to the  JoAnn Brennan,

White, and Hoffman loans, the jury could have  concluded that

this was not  a situation where, at  the time the  loans were

extended,  McHugh  knew  that  the named  debtors  were  both

financially capable and fully understood their obligations to
                       

repay the loans.  See id. at 222.
                         

          More importantly,  this also is a  case where there

were "other  circumstances," see  id., which serve  to render
                                     

the reasoning of  Gens inapposite.   There was evidence  from
                      

                    

12.  Indeed, there was evidence which tended to indicate that
White,  JoAnn   Brennan,  and  the  Harbor   Group  were  not
                                                             
financially  capable of repaying the loans on which they were
the named debtors.

                             -11-
                              11

which the jury could  have inferred, among other  things, (1)

that  McHugh knowingly caused false purposes for the loans to

Charles  White and  Joseph Hoffman  to be  recorded on  their

respective  term sheets;  (2)  that McHugh  failed to  follow

customary  bookkeeping procedures  in extending  the  loan to

JoAnn Brennan; (3) that McHugh exceeded his loan authority in

making the loan to the Harbor Group; and (4) that the loan to

the Harbor Group was  made for the purpose of  disguising the

fact that  certain  loans to  Brennan and  Brennan-controlled

interests were delinquent.  Moreover, there was evidence from

which  a jury could  have found that  McHugh structured these

loans so that he would not  have to present them to the Board

for prior approval.13   In our view, these are  precisely the

types  of  circumstances that  could  have  led the  jury  to

conclude that McHugh, in  extending these loans, exhibited "a

reckless disregard" of CSB's interests.  See Cyr, 712 F.2d at
                                                

732;  Fusaro, 708  F.2d at  21.   Accordingly, we  decline to
            

upset McHugh's convictions on the misapplication counts.14 

                    

13.  Certainly,  it is  reasonable  to infer  from this  that
McHugh thought the Board might not approve of these loans.

14.  Relying on a  passage in Gens  where we  took note of  a
                                  
category  of  cases  in  which the  defendant  officials  had
"assured  the  named  debtor,  regardless  of  his  financial
capabilities, that they would look for repayment only to  the
third party  who actually received the  loan proceeds[,]" see
                                                             
Gens, 493 F.2d  at 222,  McHugh also argues  that because  he
    
neither  made  this type  of assurance  nor adopted  any such
assurance  made   by  Brennan   to  a  nominal   debtor,  his
convictions  cannot  stand.   The  short  answer to  McHugh's
argument is that, in  making this statement in Gens,  we were
                                                   

                             -12-
                              12

B.  Pretrial and Trial Issues
                             

          As  we  have stated,  McHugh  and  Brennan raise  a

number  of challenges  to decisions  the district  court made

regarding the  parameters of the trial,  the admissibility of

certain evidence, and the jury instructions.  We discuss each

argument in turn.

     1.  Severance
                  

          McHugh  contends that the  district court committed

reversible error in denying  his motion for severance.   More

particularly, McHugh asserts (1) that the number of counts in

the indictment created  jury confusion; (2) that there  was a

prejudicial spillover of  evidence, particularly "Rule 404(b)

evidence,"15 that  was admitted  solely against  Brennan; and

                    

not   setting  forth   the   elements  of   the  offense   of
misapplication.  Instead, we were summarizing those instances
where  bank  officials  had  been  found  guilty  of  willful
misapplication for making loans while aware that the proceeds
would be passed along to third parties.  See generally id. at
                                                          
221-22.  
     Moreover, despite McHugh's assertion to the contrary,  a
careful reading  of the charge  reveals that the  trial judge
did not instruct  the jury that  the existence of one  of the
two aforementioned types of assurances was  an element of the
crime of  willful misapplication.   Rather, the  court merely
informed the  jury that if  there had  been one of  these two
types of  assurances, "misapplication  may be found."   Thus,
even if, as McHugh suggests, there was no evidence tending to
indicate  either that he  assured the  named debtors  that he
would  look  only to  Brennan for  repayment  or that  he had
adopted  such an  assurance made  by Brennan, the  absence of
this type of  evidence would  not mandate a  reversal of  his
convictions.

15.  Fed. R. Evid. 404(b) provides:

                             -13-
                              13

(3)  that  the defendants  were  asserting  such inconsistent

defenses that severance was warranted.  We do not agree.

          A  trial court  will grant  severance "only  upon a

strong showing of prejudice."  E.g., United States v. Tejeda,
                                                            

974 F.2d 210, 219 (1st Cir. 1992).  A district court's denial

of  a motion for relief from prejudicial joinder, see Fed. R.
                                                     

Crim. P. 14,16 is  reviewed only for an abuse  of discretion,

e.g., United States v. Tracy, No. 92-1459, slip op. at 8 (1st
                            

Cir.), cert.  denied     U.S.     , 61 U.S.L.W.  3773 (1993),
                    

and we will  reverse only  if the  district court's  decision

"`deprived  defendant  of  a   fair  trial,  resulting  in  a

miscarriage of justice.'"   Tejeda, 974 F.2d  at 219 (quoting
                                  

United  States v.  McLaughlin,  957  F.2d  12, 18  (1st  Cir.
                             

1992)).

                    

          Other crimes, wrongs,  or acts.   Evidence  of
          Other crimes, wrongs,  or acts.   
     other crimes, wrongs, or  acts is not admissible to
     prove the  character of a  person in order  to show
     action in  conformity therewith.  It  may, however,
     be admissible for other  purposes, such as proof of
     motive,  opportunity,  intent,  preparation,  plan,
     knowledge,  identity,  or  absence  of  mistake  or
     accident,  provided  that   upon  request  by   the
     accused, the prosecution in  a criminal case  shall
     provide  reasonable notice in  advance of trial, or
     during trial  if the court excuses  pretrial notice
     on good cause  shown, of the general  nature of any
     such evidence it intends to introduce at trial.

16.  In relevant part,  Fed. R.  Crim P. 14  states:  "If  it
appears that  a defendant . . . is prejudiced by a joinder of
offenses or of defendants in  an indictment . . ., the  court
may order an election  or separate trials of counts,  grant a
severance  of defendants  or  provide whatever  other  relief
justice requires. . . ."

                             -14-
                              14

          Briefly  stated,  we  can  perceive   no  abuse  of

discretion  resulting  in  a  miscarriage  of  justice  here.

Although this was a complicated  case, McHugh has provided us

with  absolutely no  basis for concluding  that the  jury was

confused.  Rather, the  discriminating verdict suggests to us

that   the  jury  was  fully  able   to  follow  the  court's

instructions  and  differentiate   between  the  counts   and

defendants.  See United  States v. Boylan, 898 F.2d  230, 246
                                         

(1st  Cir.), cert. denied, 498 U.S. 849 (1990).  Moreover, we
                         

are  persuaded   that  the  district   court's  vigilant  and

persistent use of limiting instructions throughout the trial,

when  taken with  its final  charge instructing  the jury  to

consider the defendants and the counts separately, adequately

protected  McHugh from  the possible  effects of  prejudicial

spillover.   See Tejeda, 974 F.2d at  219.17  Finally, to the
                       

                    

17.  With  regard   to  each  of  the   examples  (i.e.,  the
                                                       
promissory notes to Gloria  Campobasso and the Hokal Anstalt,
the complaint filed by Judith  Eissner, and the testimony  of
Kenneth  D'Amato regarding  two  conversations  with  Brennan
wherein Brennan  stated that McHugh would someday wake up and
find  a new  car  in his  driveway)  McHugh cites  where  the
district court did not deliver a limiting instruction despite
McHugh's request  for one, we  note that  the district  court
explicitly denied McHugh's request  because, in its view, the
evidence was probative on the question of whether there was a
conspiracy  between McHugh  and Brennan.   On  appeal, McHugh
does   not  challenge   the  correctness   of  this   ruling.
Accordingly,   this  evidence,  far  from  being  prejudicial
because  of  its  potential  for  "spilling  over,"  must  be
construed as evidence properly admitted against McHugh on the
conspiracy count.
     With  regard  to  the  evidence  admitted  only  against
Brennan  but referred  to by  the  Government in  its closing
argument  against McHugh, we simply  note that McHugh did not

                             -15-
                              15

extent that McHugh raised any defenses that were inconsistent

with  the   ones  presented   by  Brennan,  McHugh   has  not

articulated, nor can we discern, how the inconsistencies were

"so prejudicial  and the defenses so  irreconcilable that the

jury unjustifiably . . .  infer[red] that this conflict alone

demonstrates that both are guilty."  United States v. Luciano
                                                             

Pacheco, 794 F.2d 7, 8 (1st Cir. 1986) (quoting United States
                                                             

v. Bautista, 731 F.2d 97, 100 (1st Cir. 1984)).  Accordingly,
           

we  find that the district court did not abuse its discretion

in refusing to grant McHugh's severance motion.

     2.   Evidence Relating to Brennan's  Dealings with Other
                                                             
     Banks and Persons
                      

          Brennan  generally argues that  "the Government was

permitted to  introduce excessive evidence  relating to other

transactions that were not  a basis for the indictment."   He

goes  on, however,  to specify  only  three examples  of such

"excessive" evidence:  (1) the testimony of Gloria Campobasso

regarding an  outstanding promissory  note Brennan  had given

                    

object to  the Government's  line of  argument at  that time.
Accordingly, we review only  for plain error.   United States
                                                             
v.  Gonzales-Torres, 980 F.2d 788,  791 (1st Cir.  1992).  To
                   
establish plain error, McHugh must demonstrate that the error
complained  of is so compelling  that he virtually is assured
of  succeeding in his appeal, and that the error affected the
fundamental fairness  and basic integrity of  the proceedings
in the  lower court.  See  id.; see also Boylan,  898 F.2d at
                                               
249 ("The  [plain error] doctrine does not allow litigants to
be relieved from the `ordinary backfires  . . . which may mar
a  trial record.'")  (quoting United  States v.  Griffin, 818
                                                        
F.2d 97, 100 (1st Cir.), cert. denied, 484 U.S. 844 (1987)). 
                                     
We find that the  incident at issue, if erroneous,  falls far
short of the plain error threshold.   

                             -16-
                              16

her,  (2)  the  testimony  of  Donald  Moscone  regarding  an

outstanding promissory  note Brennan  had given him,  and (3)

the testimony of K.  Dun Gifford regarding a certain  loan he

had taken out at the First American Bank on Brennan's behalf.

At trial, Brennan neither objected to the introduction of any

of  this evidence nor did he  request a limiting instruction.

Thus, the admission of this evidence can serve as a basis for

reversal  only  if plainly  erroneous.   Gonzales-Torres, 980
                                                        

F.2d at 791.  After carefully reviewing the entire record, we

discern no plain error  in the district court's  admission of

this evidence.  Accordingly, we reject Brennan's argument for

reversal on this ground.18 

     3.  Gifford's Testimony Characterizing Brennan's Actions
                                                             
     Towards Him as "Illegal, Unlawful and Fraudulent"
                                                      

          Brennan's  next argument,  that  K.  Dun  Gifford's

testimony  that Brennan's  dealings with  him  were "illegal,

unlawful and  fraudulent" prejudiced  him, suffers  a similar

                    

18.  Without  elaborating,   McHugh  also  states   that  the
admission  of the above-referenced  evidence without limiting
instructions "was  highly prejudicial"  to him.   However, he
neither identifies a specific instance where he was  denied a
limiting   instruction  nor  attempts   to  explain  why  the
admission   of  this   evidence   was   highly   prejudicial.
Accordingly, we view McHugh's  "argument," to the extent that
it can be  so characterized, as waived.   See, e.g., Cohen v.
                                                          
Brown Univ.,  No. 92-2483, slip op. at 30 (1st Cir. April 16,
           
1993)  ("Litigants cannot  preserve  an issue  for appeal  by
raising a pennant  and then moving on  to another subject.");
Ryan  v. Royal Ins.  Co. of America,  916 F.2d  731, 734 (1st
                                   
Cir. 1990) ("[I]ssues adverted to on appeal in  a perfunctory
manner,  unaccompanied by  some developed  argumentation, are
deemed to have been abandoned.").

                             -17-
                              17

fate.  Even if we construe the admission of this statement as

erroneous,  Brennan's failure to object to it at trial limits

our review to the now-familiar plain error rubric.  Id.  Once
                                                       

again,  our review  persuades  us that  the district  court's

admission of this evidence did not rise to the level of plain

error.  Accordingly, we decline to reverse on this ground.

     4.  Prosecutorial Misconduct    
     4.  Prosecutorial Misconduct
                                 

          Brennan   makes   two   separate   arguments   that

prosecutorial   misconduct  requires   a   reversal  of   his

conviction.   He first claims  that he is  entitled to a  new

trial  because the prosecutor asked him on cross-examination,

without a good faith  basis for the question, whether  he was

terminated from prior employment  as a stockbroker at Tucker,

Anthony, and Day.   The record reveals,  however, that George

Downey  and  Brian  O'Rourke,  who were  interviewed  by  the

Federal Bureau of Investigation prior to trial, stated to the

interviewing agents that Brennan had been terminated from his

employment at  Tucker,  Anthony,  and  Day  for  unauthorized

trading.    Brennan has  not presented  us with  any evidence

suggesting that  the Government  knew, or should  have known,

that these statements  were false.  Accordingly,  there is no

reason  for us to conclude that the question posed to Brennan

on cross-examination was not asked in good faith.19  

                    

19.  Brennan  also  argues,  in  a paragraph  that  can  most
charitably  be   described  as  cryptic,  that   one  of  the
Government  prosecutors made  false  representations  to  the

                             -18-
                              18

          Second,  Brennan contends that the Government acted

improperly  in  putting  into   issue,  both  in  its  cross-

examination of Brennan and in its rebuttal argument, the fact

that  Brennan did  not  introduce into  evidence any  records

corroborating certain aspects of his testimony.  In Brennan's

view,  such actions  apparently were  tantamount to  making a

comment on  Brennan's failure to testify  and thereby shifted

the burden of proof  from the Government to Brennan.   Again,

we do not agree.

          Without question, clearly it is impermissible for a

prosecutor to comment, either  directly or by implication, on

a  defendant's failure  to  take the  stand  during a  trial.

Griffin v. California,  380 U.S. 609,  615 (1965).   However,
                     

when a defendant does take the stand, a prosecutor may attack

                    

district  court at  the sidebar  conference during  which the
court addressed whether the Government could inquire into the
circumstances  surrounding  Brennan's departure  from Tucker,
Anthony,  and Day.  In so doing, however, Brennan relies upon
an affidavit which  is not part of the record  before us, has
not  been made  part  of any  appendix  (as no  appendix  was
submitted by appellants), and was not included in his inutile
addendum.  Accordingly, we do not address this argument.  See
                                                             
Commonwealth  of  Massachusetts,  Dep't. of  Pub.  Welfare v.
                                                          
Secretary of Agric., 984 F.2d 514, 522-23 n.7 (1st Cir. 1993)
                   
(appellant  who shirks  his/her duty  "to provide  this court
with an  appendix sufficient  to support his[/her]  points on
appeal" must  bear  the onus  of any  insufficiencies in  the
appellate record)  (quoting United States v.  One Motor Yacht
                                                             
Named  Mercury,  527  F.2d   1112,  1113  (1st  Cir.  1975)).
              
Furthermore, we  admonish Brennan's appellate counsel for his
lack  of professionalism  in characterizing  the Government's
prosecutor's   statements   as  "false,"   "fictitious,"  and
"unconscionable" without  providing us with  even a scintilla
of evidence to support his allegations.     

                             -19-
                              19

as weak  the evidentiary foundation upon  which a defendant's

testimony  rests.  See United States v. Garcia, 818 F.2d 136,
                                              

143-44 (1st Cir.  1987); United States v.  Savarese, 649 F.2d
                                                   

83,  87 (1st Cir. 1981).   Moreover, we  previously have held

that a  prosecutor's comments regarding a defendant's failure

to  produce  documents  corroborating a  defense  theory  are

proper  if  they are  limited  to assailing  the  strength or

plausibility of the proffered theory.   See United States  v.
                                                         

Glantz, 810  F.2d 316, 321-22  (1st Cir.), cert.  denied, 482
                                                        

U.S. 929 (1987).

          Having reviewed the questions and comments at issue

here,20 we are persuaded  that they were made solely  for the

purpose   of  calling   into   question   the  strength   and

plausibility of certain of Brennan's testimony.  Moreover, we

                    

20.  On  direct,  Brennan   testified  about   a  number   of
transactions  and  facts  that   normally  would  have   been
memorialized  in  writing  during  the  ordinary   course  of
business dealings.  On cross-examination,  after ascertaining
that Brennan  had reviewed the records  of these transactions
and facts prior to trial, the Government asked Brennan:  "And
some of  those documents,  I imagine, would  corroborate what
you  have been saying on the stand  for the last two days, is
that right?"  Later, in its rebuttal argument, the Government
made the following comment:

          Then you  have the suggestion  that you should
     take Mr. Brennan at his  word that he had  $700,000
     in  the bank.    Well,  first  of all,  ladies  and
     gentlemen, I suggest that  you have no reason based
     on his  testimony, based  on the evidence,  to take
     him at his word.  
          You may ask yourselves the question:  Where is
     the bank  statement?  Where is  the thing produced?
     Who corroborates his testimony? 

                             -20-
                              20

are  convinced that the jury could not have drawn an improper

inference  from  them.    Accordingly,  we  reject  Brennan's

request for  a new trial  insofar as  it is based  upon these

questions and comments.

     5.  Deposition Testimony of Non-Testifying Codefendant
                                                           

          Brennan  also  argues  that  the  district  court's

admission   against   him,   pursuant  to   Fed.   R.   Evid.

801(d)(2),21  of  certain deposition  testimony given  by the

non-testifying McHugh  during the course  of a civil  case in

1989 entitles him to  a new trial.22  In  Brennan's view, the

admission of  this material infringed on  his Sixth Amendment

right  to conduct  adequate cross-examination  of  an adverse

witness  and resulted in reversible  error.  We  do not share

Brennan's belief that reversible error was committed.

          As an  initial matter,  we agree with  Brennan that

because  the  disputed  deposition  testimony  was not  given

"during the course and in furtherance of  the conspiracy," it

was  not admissible  under Fed.  R. Evid. 801(d)(2)(E).   See
                                                             

                    

21.  Although  it did not so specify, it is apparent that the
court   admitted  the   statement  as   "a  statement   by  a
coconspirator of a party during the course and in furtherance
of the conspiracy."  See Fed. R. Evid. 801(d)(2)(E).
                        

22.  During  McHugh's  cross-examination of  Brennan, Brennan
represented that, at  the time  he had requested  two of  the
loans  applied  for at  CSB, he  told  McHugh the  reasons he
needed the  loans.  In  response, the Government,  during its
cross-examination   of   Brennan,   successfully  sought   to
introduce  the prior testimony of McHugh that he did not know
the  purposes of  the  loans at  issue  at the  time  Brennan
applied for them. 

                             -21-
                              21

United  States  v. Carper,  942  F.2d 1298,  1301  (8th Cir.)
                         

(statement made to officer  after arrest of coconspirator not

admissible under  Fed. R.  Evid. 801(d)(2)(E) because  it was

not  made in  furtherance of  conspiracy), cert.  denied,    
                                                        

U.S.     ,  112 S.  Ct.  614  (1991).   However,  even if  we

construe  the admission  of the  statement as  erroneous, our

review of the entire  record persuades us that the  error was

harmless  beyond  a  reasonable  doubt.23    See  Chapman  v.
                                                         

California, 386  U.S. 18,  22-24 (1967); Manocchio  v. Moran,
                                                            

919  F.2d 770,  783-84 (1st  Cir. 1990)  (subjecting material

which  creates Sixth Amendment  Confrontation Clause problems

to harmless error analysis), cert.  denied,     U.S.    , 111
                                          

S.  Ct. 1695  (1991);  see  also Carper, 942  F.2d at 1301-02
                                       

(admission  of  statement  to  officer under  Fed.  R.  Evid.

801(d)(2)(E) held to be harmless error).  

          Simply put, we do not believe, as Brennan contends,

that  McHugh's testimony  tended to  prove that  "Brennan was

fabricating the purposes of  the loans."  McHugh's deposition

testimony  was  that  McHugh did  not  know  why Brennan  was

seeking  the loans; it was not that Brennan provided him with
                              

false  purposes  for the  loans.    Thus, the  testimony  had

little,  if any,  probative value.   This fact,  when coupled

                    

23.  On  appeal,  the  Government makes  a  somewhat strained
argument that the material was admissible under Fed. R. Evid.
806.  Because we find that the admission of this material, if
erroneous, was harmless  error, we need not reach  the merits
of the Government's position.

                             -22-
                              22

with the abundance of evidence, completely independent of the

material  here  at  issue,   to  support  each  of  Brennan's

convictions, convinces us beyond  a reasonable doubt that the

jury  "would have  reached  the same  verdict without  having

received the tainted evidence."  Clark v. Moran, 942 F.2d 24,
                                               

27 (1st  Cir. 1991) (quoting  Milton v. Wainwright,  407 U.S.
                                                  

371,  377 (1972)); see also United States v. Hudson, 970 F.2d
                                                   

948,   953-54  (1st  Cir.   1992)  (overwhelming  independent

evidence of guilt renders  erroneous failure to admit certain

exculpatory   evidence  harmless  error).    Accordingly,  we

decline  Brennan's request for a  new trial insofar  as it is

premised on  the allegedly erroneous admission  of the McHugh

deposition testimony.

     6.  Jury Instructions
                          

          McHugh   contends  that,  in  three  respects,  the

district  court  committed  reversible  error  in  its   jury

instructions.  After carefully  reviewing the record in light

of McHugh's arguments, we do not agree.

     a.  Ratification of Board as a Defense
                                           

          McHugh argues  that the court erred  in refusing to

instruct the jury that  ratification by the Board constitutes

a complete defense  to willful misapplication.   In so doing,

McHugh refers  us to  several cases which,  without analysis,

simply state that  valid consent or ratification by the Board

                             -23-
                              23

of  Directors  is a  defense to  a charge  of misapplication.

See,  e.g., United States v. Gregory, 730 F.2d 692, 701 (11th
                                    

Cir. 1984), cert. denied, 469 U.S. 1208 (1985); United States
                                                             

v.  Beran, 546 F.2d 1316, 1321 (8th Cir. 1976), cert. denied,
                                                            

430 U.S. 916 (1977).    

          In  contrast,   courts  which  recently   have  had

occasion  to address  the issue  specifically have  concluded

that, absent special circumstances,  "knowledge, ratification

and  consent [of the  Board] are not  per se  defenses to the
                                            

charge  [of  willful  misapplication]."    United  States  v.
                                                         

Cauble, 706 F.2d 1322, 1353 (5th Cir. 1983) cert. denied, 465
                                                        

U.S.  1005 (1984);  see  generally Villa,  Banking Crimes,   
                                                         

3.02[5][c]; accord  United States  v. Bailey, 859  F.2d 1265,
                                            

1279 (7th  Cir. 1988),  cert. denied,  488 U.S.  1010 (1989);
                                    

United  States  v.  Castro,  837  F.2d  441,  442 (11th  Cir.
                          

1988).24    Instead,  they  have  determined that  knowledge,

ratification, and  consent "are evidentiary  matters that may

be  considered as part of  the defense that  there was either

not willful misapplication or not intent to injure the bank."

Cauble, 706 F.2d at  1353; see also United States  v. Castro,
                                                            

                    

24.  Of course,  there may be peculiar  circumstances where a
finding of ratification  by the Board  would, per se,  compel
                                                    
the defendant's  acquittal.  If,  for example, the  charge of
willful  misapplication were  premised entirely  upon  a bank
officer's non-disclosure of  a loan to  the Board, clearly  a
jury  could not convict that officer  of misapplication if it
found that s/he had  presented the loan to the  Board and the
Board had ratified it. 

                             -24-
                              24

887 F.2d 988, 995 (9th Cir. 1989).  We are  in full agreement

with the rule established by these courts.

          In our view, the correctness of this recent line of

authority is best demonstrated by a brief explication of  the

practical effects of its negation.   If we were to adopt  the

absolute rule  proposed by McHugh and  hold that ratification

by a Board of Directors per se exonerates a bank officer from
                              

charges  of  willful  misapplication,  then   we  would,  for

example, put beyond the reach of   656 a bank officer who, in

collusion  with  a rogue  Board,  provides bank  funds  to an

otherwise  unqualified  personal friend.    We simply  cannot

discern  any  rational  justification  for  reaching  such  a

result.

          In the instant matter,  the district court declined

to instruct the  jury that, as a matter of  law, it could not

convict  McHugh of misapplication if  it found that the Board

had  ratified the loans at issue.  Instead, the court allowed

McHugh  to introduce  evidence of  ratification and  to argue

that this evidence  suggested that  McHugh had  no intent  to

injure  or defraud CSB.   We believe that,  in this case, the

court's actions  were entirely appropriate.   Accordingly, we

reject McHugh's claim of reversible error.

     b.  Reference to False Entries in Overt Act Instructions
                                                             

          McHugh  next  contends  that because  the  district

court entered  a judgment  of  acquittal notwithstanding  the

                             -25-
                              25

verdict  for  McHugh  on  the  false  entry  counts,  it  was

reversible  error for it to have allowed the jury to consider

the incident underlying one of the false entries counts as an

overt  act  in its  conspiracy  instruction.   The  error, in

McHugh's view, arises from  the fact that "the jury  may have

found [McHugh] guilty of conspiracy solely on the basis of an

alleged act which  was not  criminal."  However,  it is  well

established that  an overt act need not be a crime.  Yates v.
                                                          

United States, 354 U.S.  298, 334 (1957), overruled on  other
                                                             

grounds,  Burks v. United States, 437 U.S. 1 (1978); see also
                                                             

United States v.  Medina, 761  F.2d 12, 15  (1st Cir.  1985).
                        

Accordingly,  McHugh's  argument, limited  as  it  is to  the

statement  quoted   above,  fails   as  a  matter   of  well-

established law.

     c.  Loan Authority Instruction
                                   

          McHugh  also takes issue  with the district court's

having  instructed the jury:   "In  addition, with  regard to

these charges, you may  also consider the evidence concerning

Mr.  McHugh's loan  authority and  question whether  he acted

with  intent to  injure [the  CSB]  in his  dealings with Mr.

Brennan."    It is  McHugh's  opinion  that this  instruction

improperly "focused  the attention of the  jury on resolution

of one  evidentiary issue as especially  significant in their

[sic] deliberations [concerning]  whether [McHugh] acted with

intent to injure  and defraud."   Our review  of the  record,

                             -26-
                              26

however, persuades  us that this instruction,  far from being

faulty,  was an  altogether proper  exercise by  the district

judge of his  authority to "assist the jury in  arriving at a

just   conclusion  by  explaining  and  commenting  upon  the

evidence, [and] by drawing their [sic] attention to the parts

of it  which  he  thinks  important[.]"   Querica  v.  United
                                                             

States, 289  U.S. 466,  469 (1933).   Accordingly, we  reject
      

McHugh's characterization of this instruction as erroneous.

C.  Miscellany
              

          Brennan raises  three final arguments.   First,  he

asserts that  his representation  at trial and  at sentencing

was constitutionally  deficient.  Next, he  contends that the

district court abused its discretion in sentencing him to the

high  end  of the  relevant  guideline  range.   Finally,  he

maintains that  the court abused its  discretion in adjusting

his  sentence upward  for obstruction  of justice.    None of

Brennan's arguments requires extended discussion.

     1.  Ineffective Assistance
                               

          Brennan claims that his representation at trial and

at  sentencing   was  ineffective  and  violated   his  Sixth

Amendment rights.   In so doing, Brennan  points primarily to

the failure  of trial counsel to  introduce certain documents

into evidence and the failure  of sentencing counsel to spend

sufficient  time   preparing  for  the   sentencing  hearing.

However, the  appellate record does not  indicate that either

                             -27-
                              27

of these  claims was properly raised  before and/or addressed

by the  district court.  Moreover, our review  of the  record

persuades us  that the  record is not  sufficiently developed

for  us to  address the merits  of Brennan's  Sixth Amendment

claim at this  time. Accordingly, we do  not reach it.   See,
                                                            

e.g., United States v.  Gray, 958 F.2d 9, 15 (1st  Cir. 1992)
                            

("Time  and again  we have  held that  a claim  of inadequate

representation will not be resolved on direct appeal when the

claim has not been  raised in the district court,  unless the

critical  facts  are  not   in  dispute  and  a  sufficiently

developed record exists.");  see also United States v. Hoyos-
                                                             

Medina, 878 F.2d  21, 22  (1st Cir. 1989)  ("Fairness to  the
      

parties  and  judicial  economy  both  warrant  that,  absent

extraordinary  circumstances,  an  appellate  court  will not

consider an ineffective  assistance claim  where no  endeavor

was first made to  determine the claim at the  district court

level.").25 

     2.  Sentence at High End of Guidelines Range
                                                 

          Brennan  also  contends  that  the  district  court

abused  its discretion in sentencing  him to the  high end of

the  relevant guideline  range  while  departing downward  in

sentencing McHugh.  The thrust of Brennan's argument is  that

the disparity between the sentences  of McHugh and himself is

                    

25.  Brennan may, of course, press his ineffective assistance
claim in the district court by way of a collateral proceeding
under 28 U.S.C.   2255.

                             -28-
                              28

unfair.   Established caselaw,  however, makes clear  that we

have  no jurisdiction to review a sentence that is within the

applicable guideline  range.   E.g., United States  v. Aubin,
                                                            

961 F.2d 980,  984 (1st Cir.),  cert. denied, 113 S.  Ct. 248
                                            

(1992).  Accordingly, we do not reach the merits of Brennan's

argument.26

     3.  Enhancement for Obstruction of Justice
                                               

          Finally,  Brennan asserts  that the  district court

abused its  discretion by  enhancing his sentence  two levels

for   obstruction   of  justice   for   perceived  perjurious

testimony.  See U.S.S.G.   3C1.1 ("If the defendant willfully
               

obstructed or  impeded, or  attempted to obstruct  or impede,

the  administration  of  justice  during  the  investigation,

prosecution, or  sentencing of the instant  offense, increase

the  offense level by 2 levels.") (1991 version).  A district
                      2 

court's application of this guideline provision is reviewable

only  for  clear  error.   E.g.,  United  States  v. Batista-
                                                             

Polanco,  927  F.2d  14, 22  (1st  Cir.  1991).   Our  review
       

convinces  us   that  the  district  court's  application  of

U.S.S.G.    3C1.1, far from being clearly erroneous, is amply

                    

26.  In his reply brief, Brennan also challenges the district
court's  calculation of loss.  As noted above, see supra note
                                                        
7,  arguments made for the first time in an appellant's reply
brief are  deemed waived.   See Rivera-Muriente, 959  F.2d at
                                               
354.   Thus,  we do  not  address Brennan's  loss calculation
challenge.

                             -29-
                              29

supported   by   the  record.27     Accordingly,   we  reject

Brennan's claim that the enhancement at issue was an abuse of

discretion.

                             III.
                                 

                          CONCLUSION
                                    

          Having  rejected  each  of the  arguments  made  on

appeal by Brennan and McHugh, we affirm their convictions and

sentences.

          Affirmed.
                   

                    

27.  The  district  court  explicitly   found  each  of   the
following  to be examples  of Brennan's perjurious testimony:
(1) Brennan's claim that he did not submit a PFS for purposes
of influencing CSB's decision to provide him with the June 5,
1987, $70,000 loan; (2)  Brennan's assertion that he expected
all of his bounced  checks to be honored because  he expected
there to be sufficient  funds in the appropriate accounts  at
the  time the  checks  were presented  for  payment; and  (3)
Brennan's statement  that he  did not acknowledge  having any
notes  payable to  others  on his  PFS because  of sufficient
"offsetting  assets."   There  was overwhelming  evidence  to
support each of these findings.

                             -30-
                              30
