                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            AUG 3 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                       No. 99-6072
 TERRY O’TOOLE,                                     (D.C. No. 98-CR-154-R)
                                                          (W.D. Okla.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT       *




Before ANDERSON, KELLY and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Defendant Terry O’Toole, who pleaded guilty to one count of misprision of

felony based on his concealment of an elaborate mail fraud scheme, appeals from

the district court’s sentence imposing restitution in the amount of $163,284.


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
O’Toole contends the record establishes no nexus between his count of

conviction and investor losses. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

                                         I.

      In the summer of 1997, O’Toole and several other individuals began

promoting the sale of “gold-backed railroad bonds.” Purchasers were told the

bonds would be traded in international markets and would generate astronomical

returns on investment. In truth, the bonds were virtually worthless and investors

were essentially part of nothing more than a Ponzi scheme. In September 1997,

the leader of this fraudulent scheme, Sloan Dupont (a.k.a. James Rice), directed

promoters, including O’Toole, to travel to London to receive their initial

payments. Dupont, however, did not distribute any funds. Upon his return from

London, O’Toole continued to promote the railroad bond scheme and, from

September 1997 to March 1998, collected $163,284 from various investors.

O’Toole did not forward much of these funds to the California bank where he

had previously sent investors’ “bond purchase” payments, but kept the money for

himself. Although the record is not altogether clear as to when the scheme

ultimately unraveled, O’Toole’s role ceased in March 1998.

      In September 1998, O’Toole was charged by criminal information with one

count of misprision of felony in violation of 18 U.S.C. § 4. Specifically, the


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charge read:

              From in or about July, 1997, through in or about March, 1998,
       in the Western District of Oklahoma, and elsewhere, Terry O’Toole,
       the defendant herein, having knowledge of the commission of a
       felony by certain individuals, to-wit: conspiracy to commit mail
       fraud, in violation of [18 U.S.C. §§ 371, 1341], and did conceal such
       violation and did not as soon as possible make known the same to
       some judge or other person in civil or military authority under the
       United States.

App. at 10. Several weeks later, O’Toole pleaded guilty to the charge pursuant to

a plea agreement. At the sentencing hearing, the court heard evidence on victim

losses and ultimately imposed a restitution order of $163,284. O’Toole now

appeals the restitution order.

                                             II.

       Except to the extent agreed to by the parties in a plea agreement,    see 18

U.S.C. § 3663(a)(3), restitution is confined to “the loss caused by the specific

conduct that is the basis of the offense of conviction.”     Hughey v. United States ,

495 U.S. 411, 413 (1990). The sole issue on appeal is whether there is enough

evidence to support a connection between the acts to which O’Toole pleaded

guilty and the court’s $163,284 restitution order. The answer is clearly yes.

       Although restitution could have been imposed against O’Toole for investor

losses flowing from his misprision prior to his September 1997 London trip, the

court, acting at the urging of prosecutors, opted only to assess restitution for

events occurring after September 1997. There is ample evidence in the record

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that, upon his return from London, O’Toole solicited and/or received railroad

bond investments from five individuals totaling $163,284. App. at 204-08.

O’Toole claims some of these funds were received prior to September 1997. The

timing is ultimately irrelevant. O’Toole pleaded guilty to being aware of the

fraudulent investment scheme from July 1997 through March 1998, thereby

subjecting all acts during that time period to a restitution award. O’Toole also

suggests he was unaware of the fraudulent nature of the investments. That claim,

however, is directly refuted by his guilty plea. If O’Toole felt he was a mere

victim of Sloan Dupont and/or other promoters, he should not have pleaded

guilty to misprision of felony.

      The judgment of the district court is AFFIRMED.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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