United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 96-3225.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                  v.

   Nancy TATUM, a.k.a. Nancy Fullilove, Gene Tatum, a.k.a. Dois Gene Tatum, a.k.a. Chip
Tatum, Defendants-Appellants.

                                           April 13, 1998.

Appeals from the United States District Court for the Middle District of Florida. (No. 96-72-CR-
T25A), Henry Lee Adams, Jr., Judge.

Before ANDERSON and MARCUS, Circuit Judges, and HANCOCK*, Senior District Judge.

       PER CURIAM:

       After a jury trial, appellants Gene and Nancy Tatum, were convicted of conspiracy in

violation of 18 U.S.C. § 371. The conspiracy had two objects: (1) making a false statement for the

purpose of influencing the Federal Deposit Insurance Corporation ("FDIC") in violation of 18 U.S.C.

§ 1007; and (2) defrauding and embezzling money from the FDIC in violation of 18 U.S.C. § 641.

Both defendants were also convicted of the substantive violation of section 1007.

       Because of a bank failure, the FDIC in 1989 became the receiver for the Ironwood Golf

Course and Villas ("Ironwood"). In 1991, the FDIC entered into a property management contract

for the management of the Ironwood properties. Gene Tatum was the on-site property manager, and

in that capacity he signed a one-page attachment to the property management contract representing

to the FDIC that he was "hereby disclos[ing] any and all parties that are directly or indirectly related



   *
   Honorable James H. Hancock, Senior U.S. District Court Judge for the Northern District of
Alabama, sitting by designation.
... who are to receive payments for any proposed goods or services related to the management of the

Property."   As the on-site property manager, Gene Tatum had the ultimate management

responsibility for the property.

       At the time he signed the property management agreement, Gene Tatum had set up and

become a principal in a company called Tee Time Management, Inc. ("Tee-Time"). The plan was

to subcontract with Tee-Time for performance of the work maintaining Ironwood's greens, fairways,

swimming pool, etc. Gene Tatum and his co-conspirators thought that Tee-Time would be an extra

source of income for them. Although Tee-Time was clearly a related party, Gene Tatum did not

disclose his arrangement with Tee-Time when he signed the above-mentioned form. Rather, his

relationship to Tee-Time was concealed. Nancy Tatum, then known as Nancy Fullilove, was Gene

Tatum's girlfriend at the time of the criminal conspiracy. She worked at Ironwood. She assisted

Gene Tatum in the foregoing criminal conspiracy, including depositing checks intended for the

FDIC into unauthorized bank accounts.

        In this appeal, appellants challenge both their convictions and their sentences. Their

challenges to their convictions are without merit.1 We address the challenge to their sentences.

        Both appellants challenge the amount of the loss used by the district court in its calculation

of the total offense level. With respect to Gene Tatum, the district court calculated an eight-level

increase on account of $75,837.78 of losses caused by Gene Tatum's crimes. With respect to Nancy




   1
    We reject appellants' argument that there was no false statement as contemplated by 18
U.S.C. § 1007. On the particular facts of this case, we readily conclude that Gene Tatum made
an affirmative statement that he was disclosing all related parties who were to receive payments.
He did not do so, and therefore his statement was false. Appellants' other arguments challenging
their convictions are without merit and warrant no discussion.

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Tatum, the district court calculated a six-level increase on account of $39,944.00 of losses involved

in Nancy Tatum's participation in the crimes.

       Although it is not entirely clear from the sentencing transcripts, the loss amounts used by the

district court apparently represented the gross amount of funds with respect to which each defendant

was a participant. For example, the $78,000 figure apparently consisted of the gross amount of

monies paid by the FDIC to Tee-Time plus the gross amounts of monies paid by golfing patrons

which Gene Tatum diverted to bank accounts under his control (rather than depositing same to the

bank accounts under the FDIC supervision or control as required by the management contract).

With respect to Nancy Tatum, the $39,000 figure apparently represented the gross amounts that were

deposited into her personal account (rather than the accounts supervised or controlled by the FDIC

as required by the contract). These gross amounts apparently were not reduced by the services

actually performed by Tee-Time on the Ironwood properties, or to the extent that some or all of the

dollars diverted to inappropriate bank accounts were actually used for legitimate Ironwood expenses.

       Appellants argue that the district court's use of such gross amounts as the loss figure was

error. They argue that the evidence established no loss at all suffered by the FDIC. They also argue

that there was no intended loss. Although conceding that the contracts with Gene Tatum and Tee-

Time were procured by fraud (because Gene Tatum failed to disclose the relationship), appellants

argue that Tee-Time actually performed the services in maintaining the greens, fairways, etc., and

thus the FDIC suffered no loss. They argue that there was no intended loss, because appellants

intended all along to perform the required services.

       The appropriate treatment of victim losses in the total offense level calculation will vary with

the nature of the offense. For example, in the case of a simple theft, United States Sentencing


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Guidelines Manual ("U.S.S.G."), § 2B1.1 provides that " "[l]oss' means the value of the property

taken, damaged, or destroyed." The theft guideline, U.S.S.G. § 2B1.1, Application Note 2, indicates

that the theft "loss" is not affected by recovery of any portion of the stolen property. In the district

court, the government took the position that the foregoing was the applicable standard, and

apparently, the district court acceded to the government's position and used the gross amounts as

above described.

        However, this case does not involve a simple theft. Rather, this case has been litigated upon

the assumption2 by all of the parties (and the district court) that the crimes involved were not simple

theft, but rather were in the nature of the fraudulent procurement of a contract.3 As pointed out by

the Third Circuit in United States v. Kopp, 

(3rd Cir.1991), and by the Seventh Circuit

in United States v. Schneider, 

(7th Cir.1991), the analysis in a case of fraud is not as

simple as in a case of simple theft. In a simple theft, there is almost always an intent to deprive the

victim of the value of the property taken. Thus, it is appropriate to allow no reduction for the

recovery of any portion of the stolen property. In some cases of fraud, there will be a similar intent

to deprive the victim of the full amount fraudulently taken. However, in other cases of fraud, the

perpetrator may intend no loss. Appellants argue that their crimes fall in the latter category.




   2
    For this reason, we treat the case as one involving solely the fraudulent procurement of a
contract. Thus, we need not decide whether a different treatment would be appropriate in a case
in which the fraud was in the nature of embezzlement.
   3
    In other words, Gene Tatum fraudulently obtained the contract by failing to disclose his
relationship to subcontractor Tee-Time.

                                                   4
       We conclude that the U.S. Sentencing Guidelines do stake out a treatment of "loss" for cases

of fraudulent procurement of a contract which is different from that for simple theft. U.S.S.G. §

2F1.1, Application Note 7, provides in relevant part:

       7. Valuation of loss is discussed in the Commentary to § 2B1.1 (Larceny, Embezzlement,
       and Other Forms of Theft). As in theft cases, loss is the value of the money, property, or
       services unlawfully taken; it does not, for example, include interest the victim could have
       earned on such funds had the offense not occurred. Consistent with the provisions of §
       2X1.1 (Attempt, Solicitation, or Conspiracy), if an intended loss that the defendant was
       attempting to inflict can be determined, this figure will be used if it is greater than the actual
       loss. Frequently, loss in a fraud case will be the same as in a theft case. For example, if the
       fraud consisted of selling or attempting to sell $40,000 in worthless securities, or
       representing that a forged check for $40,000 was genuine, the loss would be $40,000.

       There are, however, instances where additional factors are to be considered in determining
       the loss or intended loss:

       ...

(b) Fraudulent Loan Application and Contract Procurement Cases

               In fraudulent loan application cases and contract procurement cases, the loss is the
               actual loss to the victim (or if the loss has not yet come about, the expected loss).
               For example, if a defendant fraudulently obtains a loan by misrepresenting the value
               of his assets, the loss is the amount of the loan not repaid at the time the offense is
               discovered, reduced by the amount the lending institution has recovered (or can
               expect to recover) from any assets pledged to secure the loan. However, where the
               intended loss is greater than the actual loss, the intended loss is to be used.

               In some cases, the loss determined above may significantly understate or overstate
               the seriousness of the defendant's conduct. For example, where the defendant
               substantially understated his debts to obtain a loan, which he nevertheless repaid, the
               loss determined above (zero loss) will tend not to reflect adequately the risk of loss
               created by the defendant's conduct. Conversely, a defendant may understate his
               debts to a limited degree to obtain a loan (e.g., to expand a grain export business),
               which he genuinely expected to repay and for which he would have qualified at a
               higher interest rate had he made truthful disclosure, but he is unable to repay the loan
               because of some unforeseen event (e.g., an embargo imposed on grain exports)
               which would have caused a default in any event. In such a case, the loss determined
               above may overstate the seriousness of the defendant's conduct. Where the loss
               determined above significantly understates or overstates the seriousness of the
               defendant's conduct, an upward or downward departure may be warranted.

                                                   5
U.S.S.G. § 2F1.1, Application Note 7. We conclude that the above-quoted guideline is applicable

to this case, and that the district court erred in failing to apply it. Therefore, we must vacate

appellants' sentences and remand for resentencing. If on remand the district court finds that there

is no actual loss and no intended loss, then there should be no enhancement of the base offense level

on account of the amount of the losses, unless of course an upward departure is found appropriate.

See 

cases, the loss determined above may significantly understate ... the seriousness

of the defendant's conduct. For example, ... the loss determined ... [may] tend not to reflect

adequately the risk of loss," and thus "an upward ... departure may be warranted.").

       For the foregoing reasons, the convictions of appellants are AFFIRMED, but the sentences

are VACATED, and the case is REMANDED for resentencing.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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