                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                                 Revised
                                                                April 6, 2004
                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                  Clerk
                        ______________________
                              No. 02-10829
                       ______________________

                      UNITED STATES OF AMERICA
                                                  Plaintiff-Appellee
                                 versus

                      WILLIAM STEPHEN SOLESBEE

                                                 Defendant-Appellant

         ___________________________________________________
          Appeal from the United States District Court for
                   the Northern District of Texas
                           (No. 3:01-CR-027-R)

         ___________________________________________________


Before DeMOSS, DENNIS, and PRADO, Circuit Judges.


DENNIS, Circuit Judge: *

     William Stephen Solesbee appeals his conviction for two counts

of bankruptcy fraud, eight counts of wire fraud, one count of money

laundering, and one count of bank fraud, all based on a jury

verdict. We REVERSE the conviction for bank fraud and AFFIRM the

others.


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                    1
                             BACKGROUND


     On January 24, 2001, the grand jury returned an indictment

charging Solesbee with one count of bankruptcy fraud in violation

of 18 U.S.C. § 157; one count of transferring and concealing assets

from the bankruptcy court, trustee, and creditors in violation of

18 U.S.C. § 1952(7); eight counts of wire fraud in violation of 18

U.S.C. § 1343; one count of bank fraud in violation of 18 U.S.C. §

1344; and two counts of money laundering in violation of 18 U.S.C.

§ 1956(a)(1)(B)(I). The court dismissed one money laundering count

during trial upon the government’s motion, and the jury found

Solesbee guilty of the remaining counts.

Count 1 (Bankruptcy Fraud)


     As to Count 1, the indictment charges the following. In May

1995, Solesbee negotiated the purchase of a residence in Dallas

Texas and represented to the seller that the purchaser of the

property was the Galloway Special Trust (“Trust”). Solesbee claimed

that he was the trustee and primary beneficiary of the trust.

Solesbee provided the seller with a financial statement for the

trust knowing that it contained materially false and fraudulent

information concerning trust assets and liabilities.

     Based on the materially false and fraudulent representations

made by Solesbee, the seller sold the residence to the Trust along

                                 2
with some personal property. Under the terms of the sale, the Trust

was required to make monthly payments of approximately $4,700 in

principal, interest, and property taxes. The Trust defaulted on the

first four monthly payments, and the seller gave notice of default

and posted the residence for foreclosure. Prior to the date noticed

for foreclosure, Solesbee transferred the residence from the Trust

to himself individually for no consideration. Solesbee then filed

Chapter 13 bankruptcy in the Bankruptcy Court for the Northern

District of Texas, Dallas Divison, In re William S. Solesbee, No.

395-35447-SAF-13, to prevent foreclosure of the residence as well

as collection actions by other creditors through operation of the

bankruptcy   automatic       stay    provision.      Solesbee    knowingly   and

intentionally      omitted   information      from    his   bankruptcy   filing

concerning his creditors because disclosure of those amounts would

have made him ineligible for chapter 13.

     Thus,   the    indictment      charges   that    Solesbee    intentionally

devised a scheme and artifice to defraud the seller, and for such

purpose knowingly filed a bankruptcy petition, preventing the

recovery of the residence while Solesbee claimed the protection of

the automatic stay provisions to avoid making payments. Also,

Solesbee filed documents in a bankruptcy proceeding containing

materially false statements, all in violation of 18 U.S.C. § 157.

The jury charge adequately instructed the jury as to the alleged

offense, and the jury found Solesbee guilty on Count 1.


                                        3
Counts 2-6 (Wire Fraud)


     As to Counts 2-6, the indictment charged the following. From

in or about January 1996 until July 1996, Solesbee devised and

intended to devise a scheme and artifice to defraud commercial

airlines and hotels of their right to payment for airline tickets

and hotel accommodations vouchers. Solesbee began a travel agency,

Imperial Tours, which he operated from his personal residence. He

also incorporated President’s Travel, Inc., a Texas corporation that

conducted business as Imperial Tours.

     Solesbee planned and promoted a meeting to be held at the

Aloha Bowl in Hawaii called Mission Meeting ‘96 (“MM96"). MM96 was

held July     26-31,   1996,   and   was   attended   by   missionaries   and

children of missionaries (“missionary kids” or “MKs”) from all over

the United States. Travel arrangements for MM96 attendees were

required to be made exclusively through Imperial Tours.

     Around    March   1,   1996,    Solesbee   moved   his   operation   for

Imperial Tours into the Bonaventure Travel Agency in Dallas and

began using Bonaventure’s Airline Reporting Corporation account

(“ARC account”) at NationsBank in Dallas to pay for airline tickets

issued by Imperial Tours. On or about April 2, 1996, Solesbee set

up a new ARC account under the name of Bonaventure at NationsBank.

The ARC functions as a clearinghouse for travel agencies and


                                       4
airlines. Travel agencies are required to maintain a bonded AR

account from which ARC debits the travel agency’s receipts to pay

the airlines for airline tickets that have been issued by the

travel agency and used for travel and for vouchers issued by the

travel agency and used to obtain hotel accommodations. Receipts

from the sale of airline tickets and hotel accommodations by a

travel agency are required to be deposited into the ARC account for

this purpose.

       Solesbee caused payments for airline tickets issued to persons

planning     to   attend    MM96    to   be   collected.         He    caused   those

individuals to pay for the tickets by credit card charges payable

to Answer USA, an answering service controlled and operated by

Solesbee. When the payments were received by Answer USA on the

credit card charges, Solesbee caused the wire transfer of funds in

Answer USA’s acccount at MBNA America Bank in Wilmington, Delaware

to the account of President’s Travel, Inc., d.b.a. Imperial Tours

account at NationsBank in Dallas, Texas, instead of the Bonaventure

ARC account at NationsBank. Solesbee also caused the wire transfer

of payments from purchaser bank accounts to the President’s Travel,

Inc., d.b.a. Imperial Tours account at NationsBank, in Dallas,

Texas rather than to the ARC account. Solesbee then caused payments

from   the   Imperial      Tours   account    to    be    made   to    his   personal

creditors,    thereby      diverting     funds     from   the    ARC    account   and



                                         5
defrauding the airlines of payment for tickets and hotel vouchers

which had been issued in connection with MM96. The indictment then

lists a number of these specific transfers, all made in violation

of 18 U.S.C. § 1343. The jury charge adequately instructed the jury

as to the alleged offenses, and the jury found Solesbee guilty on

Counts 2-6.

Count 7 (Bankruptcy Fraud)


     As to Count 7, the indictment charged the following. Solesbee

owned and controlled Stephens Communications, Inc. (“SCI”), a Texas

corporation that operated telephone answering services under the

names “Answer USA” and “Cascade Communications.”           Around September

10, 1997, Solesbee caused the filing of a petition for voluntary

Chapter 11 bankruptcy for SCI in the U.S. Bankruptcy Court in the

Northern   District    of    Texas,   Dallas   Division,   In   re   Stephens

Communications, Inc., Case No. 397-38422-HCA-11. Solesbee signed

the voluntary petition as President of SCI. The bankruptcy case was

subsequently converted to a chapter 7 proceeding by order of the

Bankruptcy Court, and Jeff Mims was appointed as trustee. At all

times pertinent to this indictment, the bankruptcy case was a case

under Title 11 of the United States Code.

     Around October 11, 1997, Solesbee, with intent to defeat the

provisions of Title 11, did knowingly and fraudulently transfer and

conceal and   caused    to    be   transferred   and   concealed     from   the

                                       6
bankruptcy court, trustee and creditors, certain property of the

bankruptcy estate, that being Cadcom answering service equipment

(previously purchased from Cascade) transferred to Answer Bay Area

for the sale price of $15,000. Solesbee concealed the fraudulent

transfer of the assets by failing to disclose this transfer to the

court and the trustee and by making the transfer without seeking

approval of the bankruptcy court in violation of 18 U.S.C. § 152(7).

The jury charge adequately instructed the jury as to the alleged

offenses, and the jury found Solesbee guilty on Count 7.

Counts 8-9 (Money Laundering)


      As to Counts 8 and 9, the indictment charged the following.

The grand jury incorporated the allegations of Count 7. Further, at

all times pertinent to the indictment, Solesbee controlled Answer

USA   Georgia,   a   Georgia   corporation.   Solesbee   knowingly   and

willfully conducted and attempted to conduct financial transactions

affecting interstate commerce that involved the proceeds of a

specified unlawful activity: bankruptcy fraud in violation of 18

U.S.C. § 152(7), knowing that the financial transactions were

designed in whole or in part to conceal and disguise the nature,

source, ownership, and control of the proceeds of said specified

unlawful activity. The indictment noted a 10/16/97 deposit of a

cashier’s check of $11,250 drawn on the Answer Bay Area, Inc.

Account at Central Bank of Tampa, Florida to the account of Answer


                                    7
USA of Georgia at NationsBank in Atlanta, Georgia, which was

partial payment for the purchase of Cadcom equipment belonging to

the bankruptcy estate of SCI. The indictment also noted a 10/20/97

wire transfer of $3,000 between the same accounts as partial

payment for the Cadcom equipment belonging to the bankruptcy estate

of SCI. All these acts were taken in violation of 18 U.S.C. §

1956(a)(1)(B)(I). The district court dismissed Count 9 upon the

governments motion. Whether or not the indictment sufficiently

instructed the jury as to Count 8 is a topic of discussion below.

The jury found Solesbee guilty on Count 8.

Count 10 (Wire Fraud)


     As to count 10, the indictment charged as follows. Around

April 1997 through September 1997, Solesbee devised and intended to

devise a scheme and artifice to defraud Sylvian Green of funds and

property. Solesbee persuaded Green to invest her money in his

business, Stephens Communications, Inc. (“SCI”) and to loan money

to SCI. Solesbee represented to Green that she would receive a high

rate of return on her investment and that the return of her

investment would be guaranteed by him personally. Solesbee made

material false representations to Green concerning SCI to persuade

her to provide him with funds when he was in fact obtaining the

funds for his own personal use. As part of this scheme, Solesbee

caused a wire transfer of $30,000 to be transmitted from Green’s


                                 8
account at Union Planters Bank in Crystal Springs, Mississippi to

the account of SCI at NationsBank in Dallas, Texas, in violation of

18 U.S.C. § 1343. The jury charge adequately instructed the jury as

to the alleged offense, and the jury found Solesbee guilty on Count

10.

Count 11 (Bank Fraud)


      As to count 11, the indictment charged Solesbee with knowingly

executing and attempting to execute a scheme and artifice to

defraud Bank One, a federally-insured financial institution. The

indictment charged that Solesbee caused check number 1122, drawn on

the account of SCI d.b.a. V.I.P. Answering Service at Bank One, to

be drawn payable to the City of Dallas in the amount of $7,644.27,

for property taxes on his residence, when Solesbee knew the account

had previously been closed for lack of funds in violation of 18

U.S.C. § 1344. The jury charge adequately instructed the jury as to

the alleged offense, and the jury found Solesbee guilty on Count

11.

Counts 12-13 (Wire Fraud)


      As to counts 12 and 13, the indictment alleged the following.

From around May 27, 1998 until around January 30, 1999, Solesbee

devised and intended to devise a scheme and artifice to defraud

Wade Sommer of funds and property. Solesbee persuaded Sommer to



                                 9
invest     $30,000     in     a        Florida    corporation    named   Sommer

Communications. In exchange, Sommer was to own fifty percent of the

company, with the remaining fifty percent owned by a trust of which

Solesbee was the beneficiary. Sommer Communications was to operate

“Lasting Impressions,” an answering service business in Tallahassee,

Florida.    Solesbee    was       to    operate   “Custom   Communications,” an

answering service business in Fort Myers, Florida, which was

purchased by Answer USA of Georgia.

     To persuade Sommer to invest his money, Solesbee made false

representations to Sommer. Solesbee represented to Sommer that

Solesbee’s prior answering service business, Answer USA of Georgia,

had been debt free when in fact it owed more than $150,000 to its

creditors. Solesbee also represented to Sommer that he needed a

cashier’s check for $4,500 payable to Robert J. Fordham for the

purchase of answering service equipment when the money was actually

to repay Fordham for a previous loan. Along these lines, Solesbee

caused a $20,000 wire transfer to be made from Sommer’s account at

Bank of America in Dallas, Texas, to Sommer’s account at First Union

Bank in Tallahassee, Florida. Solesbee also caused a $10,000 wire

transfer to be made from Sommer’s account at Bank of America in

Dallas, Texas, to the account of Lasting Impressions at First Bank

of Tallahasse in Tallahassee, Florida, all in violation of 18

U.S.C. § 1343. The jury charge adequately instructed the jury as to


                                           10
the alleged offenses, and the jury found Solesbee guilty on Counts

12 and 13.

Sentencing


       The district court judge signed a judgment referencing the

jury’s findings of guilt and pronounced a sentence of 60 months each

on Counts 1 through 7, 10, 12, and 13; the judge pronounced a

sentence of 97 months each on Counts 8 and 11, the sentences on all

counts to run concurrently. The judge also imposed a restitution

obligation of $857,332 to be distributed among several of Solesbee’s

victims, but the court did not impose any fine and announced that

the restitution obligation will not carry any interest. The court

further ordered a five year period of supervised release and a $100

per count special assessment, totaling $1,200. Solesbee timely

appealed.

                               ISSUES


  Solesbee raises several issues on appeal.

  1.    Solesbee argues that the district court should have given

  the jury an instruction to disregard and should have declared a

  mistrial based on testimony by a government witness that implied

  Solesbee’s sexual orientation to the jury.


  2.    Solesbee argues that the district court improperly admitted



                                 11
  evidence of “extrinsic transactions.”


  3.    Solesbee argues that the evidence is insufficient to sustain

  his conviction as to Counts 1, 2, 4, 8, 10, 11, 12, and 13.

  4.    Solesbee argues that the district court erred in charging

  the jury on Count 8 that the underlying activity for the charged

  money laundering was wire fraud instead of bankruptcy fraud,

  thus constructively amending the indictment.

  5.    Solesbee argues that the district court erred by considering

  his conviction as to Count 8 in sentencing because venue for

  Count 8 was not proper in the Northern District of Texas.

  6.    Solesbee argues that the district court erred in ordering

  Solesbee to pay restitution to three persons who Solesbee argues

  were not harmed by any offense of which Solesbee was convicted.

  7.     Solesbee argues that the district court erred in using

  certain loss figures in analyzing the sentencing guidelines.


We will address each of Solesbee’s claims in turn.


                               ANALYSIS

  1.   Whether this court should reverse based on the district
  court’s refusal to give an instruction to disregard or grant a
  mistrial because of testimony by a government witness that
  communicated Solesbee’s sexual orientation to the jury
       Ms. Parks, a witness for the government, was a former employee



                                  12
of Solesbee who also happened to live in Solesbee’s apartment

complex. Ms. Parks eventually quit her job and moved out of the

apartment. During the government’s direct examination of Ms. Parks,

the following exchange took place.


     Q: Did you move out first or did you quit your job first?
     A: I moved out first.
     Q: Why did you move out?
          A: Well, I was awakened in the middle of the
          night with banging on my wall. And the next
          morning I found out that he brought this guy
          home that he met at a bar.

     Solesbee’s Attorney:      Objection,   Your   Honor.   May    I
     approach the bench?
     The Court: Yes.

          Solesbee’s Attorney: Your Honor, it’s obvious
          to me that they are trying to go into some
          kind of homosexual incident. They can’t do
          that. I don’t see what that has to do with
          anything in the trial other than prejudicial
          to Mr. Solesbee.

     The Court: I don’t see.

          Government Attorney: I’m trying to show that he
          is not who he is portrayed to everyone. He is
          portrayed to everyone that he is a genuine
          missionary kid when, in fact, he’s not.

     The Court: Well, I’m going to sustain the objection.
     Government Attorney: Okay.
     (Open Court)

     Solesbee’s Attorney: Your Honor, may            I   have     an
     instruction for the jury to disregard?

     The Court: I’ve sustained the objection to that question.

                                  13
     Solesbee’s Attorney: Move for a mistrial, Your Honor.

     The Court: I’m sorry?

     Solesbee’s Attorney: Move for a mistrial, Your Honor.

     The Court: That’s denied.


Solesbee argues that the district court’s refusal to give an

instruction to disregard and declare a mistrial violated Federal

Rules of Evidence (“FRE”) 403 and 404. Along these lines, Solesbee

also argues that the evidence was so prejudicial that its erroneous

admission rendered the trial fundamentally unfair, thus violating

his right to due process.

     Evidentiary rulings are reviewed for an abuse of discretion.

United States v. Coleman, 997 F.2d 1101, 1104 (5th Cir. 1993).   The

grant or denial of a mistrial is also reviewed under an abuse of

discretion standard.    United States v. Willis, 6 F.3d 257, 263.

Further, the harmless error rule dictates that any error that does

not affect the defendant’s substantial rights must be disregarded.

FED. R. CRIM. PROC. 52(a).

     FRE 404(b) provides that “[e]vidence of other crimes, wrongs,

or acts is not admissible to show action in conformity therewith.”

Initially, the district court judge did not admit the evidence in

question; thus, the court did not violate FRE 404.   Further, no one

has argued that Solesbee’s sexual orientation in any way indicates

that he is more or less likely to defraud others.    Thus, there is


                                 14
not a colorable argument that this testimony coupled with the

judge’s refusal to give an instruction to disregard or to grant a

mistrial violates FRE 404.

      FRE 403 provides that evidence should be excluded if its

probative value is substantially outweighed by a danger of unfair

prejudice.     Courts have recognized that evidence of a defendant’s

homosexuality       is   prejudicial       and       should    be    excluded      in   many

situations. See, e.g., People of Territory of Guam v. Shymanovitz,

157 F.3d 1154, 1160 (9th Cir. Guam 1998) (concluding that admitting

contents of gay magazines “served only the highly improper and

offensive     purpose     of    advising     the      jury    that    [defendant]        was

probably homosexual”); United States v. Gillespie, 852 F.2d 475,

479   (9th   Cir.   1988)      (“evidence       of    homosexuality         is   extremely

prejudicial”).

      But the district court judge here did exclude the proffered

evidence.     The cases Solesbee cites in support of his argument for

reversal are inapposite.          They involve cases in which the district

court admitted evidence regarding the defendant’s homosexuality and

cases in which the jury was much more likely to make an improper

inference     of     guilt     based    on      evidence       of     the    defendant’s

homosexuality.           See    Shymanovitz,          157     F.3d    1154       (reversing

conviction of criminal sexual assault involving children because

district     court       admitted      evidence        of     sexually-explicit          gay

magazines); Gillespie, 852 F.2d 475 (reversing conviction for

                                           15
transportation of a person in interstate commerce for illegal

sexual purposes because the district court admitted evidence of

defendant’s homosexuality); United States v. Ham, 998 F.2d 1247 (4th

Cir. 1993) (district court allowed two days of evidence regarding

charges of child molestation within the defendants’ Hare Krishna

community and testimony on defendant’s homosexual relationship);

United States v. Provoo, 215 F.2d 531 (2nd Cir. 1954) (district

court allowed irrelevant testimony regarding defendant’s alleged

homosexuality; the government attempted to justify it as relevant

to credibility); United States v. Birrell, 421 F.2d 665 (9th Cir.

1970) (per curiam) (district court refused to grant mistrial in

conviction for auto theft after government counsel, in closing,

argued that defendant should be in jail “where he belongs”instead

of being turned “loose on society” because he “will be a homosexual

and a car thief ... for the rest of his life”).

     Again, in this case the district court sustained Solesbee’s

objection to the testimony in question.   The court also instructed

the jury in its charge that the jury should only consider evidence

admitted in trial and should not speculate about matters not in

evidence.   Additionally, substantial evidence of Solebee’s guilt

was admitted throughout the course of the trial.       There is no

reason to believe that the jury found Solesbee guilty on multiple

counts of fraud based on one vague reference to his homosexuality.

Thus, there was no reason for the district court to declare a


                                 16
mistrial.

     While an instruction to disregard may have been warranted

here, the failure to give one was not an abuse of discretion.                      The

court sustained Solesbee’s objection to the proferred testimony.

The court also instructed the jury only to consider admitted

evidence, and there was ample evidence indicating Solesbee’s guilt.

Thus, far from rendering the trial “fundamentally unfair” as

Solesbee    contends,   the    district       court’s   failure        to   give   an

instruction to disregard this one vague reference to Solesbee’s

homosexuality was harmless and thus does not require reversal.


  2.   Whether this court should reverse based on Solesbee’s
  argument that the district court improperly admitted evidence of
  “extrinsic transactions”


     Solesbee    next   argues    that       the   district    court    improperly

admitted evidence of extrinsic transactions not alleged in the

indictment.     As noted above, FRE 404(b) states that evidence of

other crimes, wrongs, or acts is not admissible to show action in

conformity therewith. The rule goes on to state that such evidence

“may, however, be admissible for other purposes, such as proof of

motive,     opportunity,      intent,    preparation,          plan,    knowledge,

identity, or absence of mistake or accident.”                 FED R. EVID. 404(b).



     Extrinsic evidence is properly admitted under FRE 404(b) only

if: 1) it is relevant to an issue other than the defendant’s


                                        17
character,    and      2)   its   probative     value     is   not      substantially

outweighed by its undue prejudice. United States v. Leahy, 82 F.3d

6724, 636 (5th Cir. 1996) (citing United States v. Beechum, 582 F.2d

898, 911 (5th Cir. 1978) (en banc)). Again, evidentiary rulings are

reviewed for an abuse of discretion.                Coleman, 997 F.2d at 1104.

     Solesbee complains about the admission of testimony from 21

different    witnesses.        Unfortunately,       Solesbee    does       not   offer

specific explanations as to why each portion of the complained-of

testimony was improper; he just argues generally that none of them

fit within the FRE 404(b) exceptions.               A review of the complained-

of testimony reveals that a significant portion of it was actually

relevant to the charged offenses.              Several of the witnesses had

loaned    money   to    Solesbee    prior     to    his   filing     bankruptcy    in

September 1995, had not been paid back, and were not listed as

creditors, thus indicating that the bankruptcy petition was simply

filed to delay losing the home in Dallas, as detailed in the facts

relevant to Count 1, and not for the purpose of providing debt

relief.      Solesbee       complains   of    the   admission      of    IRS   records

indicating that the Galloway Special Trust did not file tax returns

from 1992 to 2000; but this evidence helps establish that the

documents provided in relation to the purchase of the home in Count

1 were fraudulent.          Some of the other complained-of witnesses had

loaned money to Answer USA of Georgia that had not been repaid;

this information was relevant to Solesbee’s misleading of Sommer as


                                         18
to the financial situation of Answer USA of Georgia, as outlined in

the facts relevant to Counts 12 and 13.

     The rest of the complained-of testimony was relevant to show

Solesbee’s intent.    Evidence of similar extrinsic offenses is

relevant to show intent.    See Leahy, 82 F.3d at 636-36 (holding

that evidence that the defendants had previously submitted false

invoices to an air force base and a naval air station was relevant

to show that they had the requisite intent to defraud the VA);

United States v. Osum, 943 F.2d 1394, 1404 (5th Cir. 1991) (allowing

evidence of extrinsic offenses because they are relevant based on

“the defendant’s indulging himself in the same state of mind in the

perpetration of both the extrinsic and charged offenses”).

     At trial, Solesbee argued that he did not try to defraud

anyone but that he was simply a bad businessman.     In his opening

statement, Solesbee’s attorney argued:

         Stephen Solesbee, I believe the evidence will show,
         was a legitimate businessman, not a very successful
         one I’ll admit, but a legitimate businessman. He
         wasn’t defrauding anyone.... [H]e couldn’t organize
         a Sunday School picnic.       He didn’t have the
         ability.   You’ve seen it.    He’s not busting out
         answering services.    He doesn’t know how to run
         them.
Thus, Solesbee’s defense placed the focus on whether or         not

Solesbee had the requisite intent for the charged offenses.

     Much of the complained-of testimony related to house purchases

and telecommunication company schemes similar to those employed by



                                 19
Solesbee in the charged offenses.      Additionally, in its charge to

the jury, the district court instructed the jury that Solesbee “is

not on trial for any act, conduct, or offense not alleged in the

Indictment.    The fact that [Solesbee] may have been accused of any

other offense may not be considered by you for any purpose.”      In

closing, the prosecutor argued that the jury could consider the

evidence of other offenses for the “limited purpose” of showing

that Solesbee “had the intent to commit the crimes that are charged

in the indictment.”     Solesbee objected to that argument as being

contrary to the court’s charge, and the court overruled that

objection.    Thus, the jury was aware that it could not consider the

evidence of these other acts for any purpose other than considering

how they beared on Solesbee’s intent.          The admission of the

evidence of these other acts was not an abuse of discretion and

does not require reversal.

  3.    Whether the evidence is insufficient to sustain          his
  conviction as to Counts 1, 2, 4, 8, 10, 11, 12, and 13

     Solesbee argues that the evidence is insufficient to sustain

his conviction as to Counts 1 (bankruptcy fraud), 2 (wire fraud),

4 (wire fraud), 8 (money laundering), 10 (wire fraud), 11 (bank

fraud), and 12-13 (both wire fraud).    As to an insufficiency of the

evidence claim, the inquiry for this court is whether the evidence,

viewed in the light most favorable to the verdict, would permit a

reasonable juror to find guilt beyond a reasonable doubt.      United


                                  20
States v. Guerrero, 169 F.3d 933, 939 (5th Cir. 1999).

       As to Solesbee’s conviction for bank fraud under Count 11,

Solesbee argues, and the government concedes, that proof of federal

insurance of Bank One is an essential element to the offense of

bank fraud and is required for federal jurisdiction. United States

v. Schultz, 17 F.3d 723, 725 (5th Cir. 1994).             It is undisputed that

no    evidence   was    introduced    establishing       that   Bank      One    was a

federally-insured        institution.        The    evidence         is     therefore

insufficient to support this conviction, and the district court was

without jurisdiction as to this count. Thus, Solesbee’s conviction

for bank fraud is reversed.

       Solesbee’s      arguments    regarding      the   insufficiency          of   the

evidence as to the other counts are unavailing.                 A review of the

relevant portions        of   the   indictment     as    well   as    the   evidence

introduced at trial relevant to each of these counts reveals that

the evidence would permit a reasonable juror to find guilt beyond

a reasonable doubt on each of these counts.

     4. Whether the district court erred in charging the jury on
     Count 8 that the underlying activity for the charged money
     laundering was wire fraud instead of bankruptcy fraud


       Solesbee argues that the district court constructively amended

the indictment as to Count 8. A constructive amendment occurs when

the trial court, through its instructions and facts it permits in

evidence, allows proof of an essential element of a crime on an

                                        21
alternative basis permitted by the statute but not charged in the

indictment.    United States v. Griffin, 324 F.3d 330, 355 (5th Cir.

2003) (citations omitted).        As Solesbee agrees, because he did not

object to the jury instructions on this basis, this issue is

reviewed for plain error.       United States v. Daniels, 252 F.3d 411,

414 (5th Cir. 2001).      A jury charge constitutes plain error if: 1)

it was erroneous; 2) the error was plain; and 3) the plain error

affected the substantial rights of the defendant.              Id.   If those

conditions are met, the court will exercise its discretion to

correct the error only if the error “seriously affect[s] the

fairness,     integrity    or     public   reputation     of   the   judicial

proceedings.”    Id.

       As explained above, the indictment charged Solesbee with money

laundering, with the underlying specified unlawful activity being

bankruptcy fraud. But the jury instructions changed the underlying

specified unlawful activity to wire fraud, thus constructively

amending the indictment.        Thus, the question is whether this error

rises to the level of plain error.

       This court has held constructive amendments to be harmless in

some   circumstances.       For    example,   in   U.S.   v.   Daniels,   the

indictment charged Daniels with money laundering by causing the

withdrawal of stolen funds from a bank account; but the court’s

charge would have permitted the jury to convict Daniels based on

either that withdrawal or the deposit of a stolen check.             252 F.3d

                                      22
at 413.        The court refused to reverse under the plain error

standard because Daniels could have been charged under either the

deposit or withdrawal theory and because the two acts were so

closely linked.       Id. at 414.             Thus, the court concluded that the

fairness,      integrity         or    public          reputation      of    the    judicial

proceedings were not affected.

     The error committed by the district court here did not affect

the fairness, integrity, or public reputation of the judicial

proceedings.         The    jury       convicted         Solesbee      on   Count       7,    the

bankruptcy      charge     that       was    listed      in    the   indictment         as    the

predicate offense for Count 8. The jury also found Solesbee guilty

of money laundering; this means that the jury found that Solesbee

was attempting to hide the funds in question.                               As the jury’s

convictions under Counts 7 and 8 encompass jury findings as to all

the requisite elements of Count 8 as charged in the indictment, it

is a certainty that the jury would have found Solesbee guilty of

Count 8 as charged in the indictment.                     Because Solesbee was put on

notice    to   defend      the    bankruptcy           fraud    charge      and    the    money

laundering charge as outlined in the indictment and the jury

findings lead to the necessary conclusion that the jury found him

guilty of all the elements of Count 8 as charged, Solesbee was not

prejudiced by the constructive amendment.                       Thus, the constructive

amendment      did   not    affect          the     fairness,    integrity         or    public

reputation      of   the   judicial          proceedings,        and    reversal         is   not


                                                  23
required.

  5. Whether the district court erred by considering Solesbee’s
  conviction as to Count 8 in sentencing because venue for Count
  8 was not proper in the Northern District of Texas

     Solesbee also challenges Count 8 on the basis of improper

venue.   The cashier’s check was drawn on an account in Florida and

deposited into an account in Georgia.            The funds never passed

through the Northern District of Texas.          Thus, the crime did not

occur in the Northern District of Texas, rendering venue in the

Northern    District   of   Texas   improper.     See    United   States   v.

Cabrales, 524 U.S. 1 (1998) (concluding that proper venue for money

laundering lies in the state in which the financial transactions

occurred).    All questions concerning venue are reviewed under an

abuse of discretion standard.        United States v. Asibar, 109 F.3d

1023, 1037 (5th Cir. 1997).

     The government responds that Solesbee waived his challenge to

venue by not raising it timely. Generally, objections to venue are

waived if not raised before trial.          United States v. Carreon-

Palacio, 267 F.3d 381, 391 (5th Cir. 2001).             There are, however,

situations in which the failure to raise a challenge to venue pre-

trial does not waive such a challenge.          Failure to object before

trial will not bar a challenge to venue when trial testimony puts

venue at issue and the defendant makes a timely challenge or

requests a jury instruction on venue.           Carreon-Palacio at 392.


                                     24
Similarly, when an indictment contains an allegation of proper

venue and the defect in venue only becomes apparent during the

government’s case, the defendant can make a timely objection by

objecting at the close of the evidence.        Id. at 392-93.    But a

defendant   indicted   by   an   instrument   that   lacks   sufficient

allegations to establish venue waives any future challenge by

failing to object before trial.     Id.

     Solesbee’s objection to venue was not timely.      The indictment

stated that the offense took place in the Northern District of

Texas, but from the facts of the indictment it was clear that the

transaction only occurred in Florida and Georgia.            Thus, the

impropriety of venue was apparent from the face of the indictment

and should have been raised before trial.       Solesbee objected to

venue for the first time at sentencing, asking the district court

to disregard the loss as to the money laundering conviction because

venue was improper. Thus, even under the exceptions to the general

rule, Solesbee’s objection would not have been timely as it was not

made at the close of the evidence.      Solesbee waived any challenge

to venue by not making a timely objection.

  6.   Whether the district court erred by ordering Solesbee to
  pay restitution to three persons who, Solesbee argues, were not
  harmed by any offense of which Solesbee was convicted

     The district court ordered Solesbee to pay $857,332.00 in

restitution to a number of people and organizations.           Solesbee


                                   25
objected to the restitution order at sentencing, arguing three of

the persons to be compensated under the restitution order were not

named in the indictment and thus were not entitled to restitution.

His objection was overruled.

     18 U.S.C. § 3663(a) provides that the court may order the

defendant   to   make   restitution    to   any   victim   of   the   offense.

Section 3663(a)(2) defines victim as:

            a person directly and proximately harmed as a
            result of the commission of an offense for which
            restitution may be ordered including, in the case
            of an offense that involves as an element of a
            scheme,   conspiracy,  or   pattern  of  criminal
            activity, any person directly harmed by the
            defendant’s criminal conduct in the course of the
            scheme, conspiracy, or pattern.

Similarly, this court has already held that victims not named in

the indictment may be compensated under a restitution order when

those victims’ losses were caused by a fraudulent scheme outlined

in the indictment.      United States v. Pepper, 51 F.3d 469, 473 (5th

Cir. 1995). The legality of the district court’s restitution award

is reviewed de novo.      United States v. Hughey, 147 F.3d 423, 436

(5th Cir. 1998).

     Solesbee argues that, while there was testimony presented at

trial about losses suffered by these three individuals, the losses

were not caused by any conduct for which Solesbee was convicted.

But a review of the facts surrounding Solesbee’s defrauding of each

of these three persons reveals that each of these persons is

                                      26
properly considered a victim under section 36663(a)(2).              Each of

these persons was either 1) directly and proximately harmed as a

result of the commission of an offense for which Solesbee was

convicted or 2) directly and proximately harmed by Solesbee’s

conduct in the course of a scheme that was an element of an offense

for which Solesbee was convicted. Thus, the district court did not

err in ordering restitution for these individuals.

  7.   Whether the district court erred in using certain loss
  figures in analyzing the sentencing guidelines

     Finally, Solesbee asserts that, in analyzing the sentencing

guidelines, the district court improperly used loss figures that

were not alleged in the indictment and that were not shown to be

part of a common scheme or plan as the offenses for which Solesbee

was convicted.    Solesbee generally alleges that the losses of the

21 witnesses, whose testimony he complained of in issue number 2,

did not stem from “relevant conduct,” as defined in the sentencing

guidelines.      Unfortunately,   Solesbee    does   not   articulate      any

specific argument as to why each of these losses does not stem from

relevant conduct.    As Solesbee has not properly argued this point

of error, it is deemed abandoned.         United States v. Lindell, 881

F.2d 1313, 1325 (5th Cir. 1989).

                               CONCLUSION


     Solesbee’s   conviction   for    Bank   Fraud   under   Count    11    is


                                     27
REVERSED.   Solesbee’s convictions on all of the other counts are

AFFIRMED, as are the restitution order and the sentence pronounced

by the district court.




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