
USCA1 Opinion

	




                                       United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                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  &  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.                                          I.                                          __                                     BACKGROUND2                                     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.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Sufficiency of the Evidence            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            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                 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                 2.   Evidence Relating to Brennan's  Dealings with Other                 ________________________________________________________                 Banks and Persons                 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                 3.  Gifford's Testimony Characterizing Brennan's Actions                 ________________________________________________________                 Towards Him as "Illegal, Unlawful and Fraudulent"                 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                 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                 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                 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                 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                 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            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                 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                 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                 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.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      Having  rejected  each  of the  arguments  made  on            appeal by Brennan and McHugh, we affirm their convictions and            sentences.                      Affirmed.                      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
