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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20885
UNITED STATES OF AMERICA
Plaintiff-Appellee
VERSUS
JUAN JIMENEZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
(February 21, 1996)
Before JOLLY, DUHÉ, AND WIENER, Circuit Judges.
DUHÉ, Circuit Judge:
Defendant, Juan Jimenez and his codefendant, Christopher
D'Cunha, were each convicted of one count of conspiracy to commit
mail fraud and nine counts of mail fraud after a joint trial.
Jimenez was sentenced to 18 months imprisonment, 3 years supervised
release and $182,062 in restitution payable to Sphere Supply Inc.
(Sphere), the victim of the fraud. Jimenez appeals his conviction
and sentence.
Sphere purchased parts, equipment and expendables to support

oil drilling operations for Santa Fe International, Inc., Sphere's
parent company. D'Cunha, a buyer employed by Sphere, first met
Jimenez while Jimenez was working for Aurora Pump Company. In
time, Jimenez left Aurora and formed Tex-Quip Inc. Jimenez
continued to sell pumps to Sphere and others.
D'Cunha approached Jimenez with a proposal to form a
corporation to do business as six different companies selling
oilfield equipment and supplies. Jimenez agreed. JCI Inc. was
formed and six related companies were started. The registered
owners of the JCI companies were the wives of Jimenez and D'Cunha.
The companies had different telephone numbers which were manned by
an answering service and different addresses which were either post
office boxes or the residences of Jimenez family members. A
fictitious contact person was created for each company for sales
made to Sphere.
D'Cunha then sought involvement in Tex-Quip. D'Cunha was paid
$2800 per month by Tex-Quip and an agreement was signed that gave
D'Cunha and Michael Reece, a Tex-Quip salesman, ownership interests
in a related company, Tex-Quip Supply Inc. D'Cunha, his wife and
his separate company, A-1 Investments, received funds from both
Tex-Quip and Tex-Quip Supply. Approximately 40% of Tex-Quip and
the JCI Companies' revenue during the three year course of the
scheme came from sales to Sphere.
Jimenez raises five points of error: (1) insufficient evidence
of intent to defraud, (2) erroneous admission of an out-of-court
statement by D'Cunha, (3) improper award of restitution, (4)
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erroneous limitation of cross-examination, and (5) government's use
of preemptory strikes in a racially discriminatory manner. We
affirm the convictions but vacate the sentence because the award of
restitution was improper.
I. Sufficiency of Evidence of Intent to Defraud.
Jimenez argues that the government presented insufficient
evidence of the specific intent to defraud required by 18 U.S.C. §§
371 and 1341. To overturn the convictions on a sufficiency of the
evidence challenge, we must find that a rational trier of fact
could not have found that the government proved the essential
elements of the crime charged beyond a reasonable doubt. United
States v. McCord, 33 F.3d 1434 (5th Cir. 1994). We must view the
evidence in the light most favorable to the verdict, accepting all
credibility choices and reasonable inferences made by the jury.
Id.
Intent to defraud requires an intent to (1) deceive, and (2)
cause some harm to result from the deceit. United States v. St.
Gelais, 952 F.2d 90 (5th Cir. 1992)(wire fraud).1 Intent to
defraud exists if the defendant acts knowingly with the specific
intent to deceive for the purpose of causing financial loss to
another or bringing about some financial gain to himself. U.S. v.
Rico Industries, Inc., 854 F.2d 710 (5th Cir. 1988). Conspiracy to
commit mail fraud requires proof of intent to commit mail fraud.
United States v. Sneed, 63 F.3d 381 (5th Cir. 1995).
J i m e n e z
1The wire fraud and mail fraud statutes contain similar
language and are governed by the same analysis. United States v.
Loney, 959 F.2d 1332 (5th Cir. 1992).
3

admits that he used fictitious business contact names and
fictitious business addresses. The evidence also shows that he
engaged in the venture to make a profit. This evidence is
sufficient for a rational trier of fact to have found that Jimenez
had the intent to deceive Sphere for the purpose of bringing about
financial gain to himself.
II. Admission of Nontestifying Codefendant's Out-of-Court
Statement.
Apparently in an effort to show that the money paid to D'Cunha
was not a kickback, Jimenez testified that D'Cunha was a true
partner who provided expertise and business leads to their venture.
On cross-examination, Jimenez testified that he would be surprised
if D'Cunha said that D'Cunha brought only Sphere business to the
table. D'Cunha did not take the stand or put on any evidence on
this issue. During rebuttal, the Government introduced a redacted
out-of-court statement given by D'Cunha during Sphere's initial
investigation of the scheme:
DH2: Okay, other than your wife's involvement as
supposedly a 50 percent owner, someone who has
received a salary and someone who has received
some monies in addition to that salary, what
involvement have you had with JCI EQUIPMENT?
CD:
The business with SPHERE, the orders, writing
the orders and ah material being supplied,
given.
DH:
And what did you bring to the table other than
more business with SPHERE?
CD:
That's all.
The court instructed the jury that the statement could be
2DH is the attorney for Sphere; CD is Christopher D'Cunha.
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considered against only D'Cunha and not against Jimenez.
Jimenez argues that despite the court's limiting instruction,
the admission of the statement violated his right under the
Confrontation Clause to cross-examine witnesses against him.3 A
defendant is deprived of this right when a codefendant's
incriminating confession is introduced at their joint trial, even
if the jury is instructed to consider that confession only against
the codefendant. Bruton v. United States, 391 U.S. 123 (1968).
The Court reasoned:
[T]here are some contexts in which the risk that the jury
will not, or cannot, follow instructions is so great, and
the consequences of failure so vital to the defendant,
that the practical and human limitations of the jury
system cannot be ignored. Such a context is presented
here, where the powerfully incriminating extrajudicial
statements of a codefendant, who stands accused side-by-
side with the defendant, are deliberately spread before
the jury in a joint trial.
Bruton, 391 U.S. at 135-36 (citations omitted).
The Bruton rule, however, is a narrow one that applies only to
statements that directly implicate the defendant without reference
to other admissible evidence. Richardson v. Marsh, 481 U.S. 200
(1987); United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir.
1988). In Richardson, the Court found that a codefendant's extra-
judicial confession that was carefully redacted to eliminate the
defendant's name and any reference to her existence did not fall
within Bruton. Richardson, 481 U.S. at 211. Similarly, in
3In his brief, Jimenez argues that the statement rebutted
nothing presented by D'Cunha and thus, was outside the scope of
rebuttal. The issue was conceded by defense counsel at oral
argument however.
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Espinoza-Seanez, this Circuit held that a confession acknowledging
the existence of a co-conspirator without naming the defendant did
not directly implicate the defendant. Espinoza-Seanez, 862 F.2d at
533-35. We treat D'Cunha's statement no differently.
The statement, standing alone, does not directly implicate
Jimenez. D'Cunha admits that he was paid by Tex-Quip, that he had
an ownership interest in the JCI companies, and that he brought
only Sphere business to the table, but nothing in the statement
connects Jimenez to the companies. Jimenez's connection to the
companies was proven by other evidence including Jimenez's own
testimony. The statement does not directly implicate Jimenez on
its face and therefore, is not covered by Bruton.
Jimenez argues that because the statement was introduced
during rebuttal to impeach Jimenez's testimony, the jury could not
follow the court's limiting instruction. Therefore, the rationale
for the Bruton exception, the jury's inability to follow the
instruction, compels an extension of Bruton to the facts of this
case. We disagree.
While presentation of the statement during rebuttal may make
the evidence more prominent in the jurors' minds, we see no reason
why the jury would be incapable of disregarding the statement and
considering the case against Jimenez without considering the
statement. We decline based solely on the phase of trial in which
the evidence was introduced to create another exception to the
general assumption that juries follow instructions.
III. Restitution
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Jimenez challenges the legality of the restitution order. We
review de novo. U.S. v. Reese, 998 F.2d 1275, 1280 (5th Cir.
1993).
The Victim Witness Protection Act (VWPA) permits a court to
order a defendant to pay restitution to any victim of a Title 18
offense. 18 U.S.C. § 3663 (Supp. 1995). In determining whether to
award restitution and the amount payable, the court shall consider:
(1) the amount of the loss sustained by any victim as a result of
the offense, (2) the financial resources of the defendant, and (3)
the financial needs and earning ability of the defendant and the
defendant's dependents, and such other factors as the court deems
appropriate. 18 U.S.C. § 3664 (Supp. 1995).
The district court, relying on the Sentencing Guidelines4 and
not the VWPA, found that Sphere suffered a loss and calculated the
amount of the loss as Jimenez's gain from sales to Sphere. Jimenez
contends that because the prices of the equipment sold to Sphere
were at or below market price, Sphere suffered no loss and cannot
be awarded restitution under the VWPA. We agree. Section 2F1.1
deals with determination of loss for purposes of determining length
of sentence not amount of restitution. United States v. Badaracco,
4The district court relied on the Sentencing Guidelines §
2F1.1, Application Note 8 which states in part:
For the purposes of subsection (b)(1)[of § 2F1.1], the loss
need not be determined with precision. The court need only
make a reasonable estimate of the loss, given the available
information. . . The offender's gain from committing the fraud
is an alternative estimate that ordinarily will underestimate
the loss.
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954 F.2d 928, 942-43 (3d Cir. 1992).
The government argues that kickbacks to D'Cunha are loss for
the purpose of the VWPA relying on United States v. RICO
Industries, Inc., 854 F.2d 710 (1988). In RICO, however, the
existence of kickbacks was proof of fraud, not of loss under the
VWPA. The court went on to affirm the restitution order but only
to the extent of the victim's actual damages. Id. at 714.
The government also argues that Sphere suffered a loss for
which restitution is appropriate because Sphere was deprived of the
use of its money when the money was used for an unauthorized
purpose, i.e. payments to D'Cunha. See United States v. Kirkland,
853 F.2d 1243 (5th Cir. 1988). In Kirkland, the defendant was a
developer who received loans from the Farmers Home Administration
(FmHA) for a housing project on the condition that he would have no
"identity of interest" with the general contractor for the project.
The defendant violated that condition when he received consulting
fees from the contractor. The defendant pled guilty to concealing
information relating to the use of the government loan and was
ordered to pay restitution. The defendant objected to the
restitution order arguing that the FmHA had suffered no loss
because the loan was being repaid. The court held that the loss of
control over the money constituted an injury for which restitution
was authorized. Id. at 1247.
Kirkland is different from this case in two respects. First,
in Kirkland money was the commodity, the object of the transaction.
Therefore, the loss of control of money was an injury for which
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restitution could be ordered. Here, money was simply an instrument
of exchange. Sphere wanted quality equipment at a fair price and
does not dispute that it received quality equipment at a fair
price. Second, the Kirkland defendant's argument that repayment
of the loan prevented any finding of loss is based on a future
event. Here, future events play no role. Sphere has received the
equipment and material and realized the benefits associated with
that equipment. Kirkland is not controlling.
We find U.S. v. Hayes, 32 F.3d 171 (5th Cir. 1994) persuasive.
In Hayes, the defendant pled guilty to possession of stolen mail
(three credit cards), was sentenced to six months imprisonment and
was ordered to pay $3,255 in restitution to the credit card
companies. This court recognized that the credit card companies
did not suffer loss from the defendant's possession of the cards
and vacated his sentence.5 Id. at 173. See also United States v.
Cobbs, 967 F.2d 1555 (11th Cir. 1992)(possession of access device
caused no loss to victim and could not support restitution award)
and United States v. Domincio, 765 F. Supp. 1259 (E.D. Va.
1991)(restitution improper where victim has suffered no real loss).
While gain to a defendant is sufficient to show an intent to
defraud, it is not sufficient alone to invoke a court's authority
to order restitution under the VWPA which requires a real or actual
5The primary concern in Hayes was whether the restitution
order could include losses other than those directly tied to the
offense for which the defendant was convicted. Additionally, the
defendant claimed that he purchased the credit cards from an
acquaintance and had not used the credit cards although he planned
to do so.
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loss to a victim. As to Jimenez, Sphere suffered no loss. We
therefore vacate the sentence and remand for resentencing keeping
in mind that the district court imposed no fine in light of the
restitution order. Hayes, 32 F.3d at 173; United States v.
Aguirre, 926 F.2d 409 (5th Cir. 1991).
IV.
Limitation of Cross-Examination.
Defendant argues that his cross-examination of Richard
Hoffman, a Sphere executive testifying for the government, was
erroneously restricted. Defense counsel notified the court before
trial that he intended to cross-examine Hoffman regarding Sphere's
demands for civil damages from Defendant for the purpose of showing
motivation for the criminal prosecution and bias on the part of Mr.
Hoffman. The court ruled that the motivation for the prosecution
was irrelevant to Defendant's guilt or innocence but that the
evidence could be relevant to show witness bias provided the proper
predicate was laid. At trial, defense counsel made no attempt to
lay a foundation to show witness bias or prejudice. He simply
submitted correspondence between the parties regarding negotiations
in the potential civil matter as an offer of proof. Because
counsel did not attempt to lay a predicate for showing bias and
made no other attempt to elicit the testimony, there was no
exclusion of evidence or limitation of cross-examination.
V. Batson Challenge.
The Prosecutor struck one African-American and two Hispanic
venirepersons with three of her preemptory strikes although three
African-American and two Hispanic venirepersons were empaneled.
10

Despite the court's finding that Defendant did not make a prima
facie showing of discriminatory intent, the Prosecutor gave race
neutral reasons for the strikes and the court further found that
the Government met its burden of providing race-neutral
explanations for the strikes in accordance with Batson v.
Kentucky, 476 U.S. 79 (1986). These findings are not clearly
erroneous. Hernandez v. New York, 500 U.S. 352 (1991).
Defendant challenges the Prosecutor's reasons by arguing that
similarly situated jurors were not eliminated. United States v.
Bentley-Smith, 2 F.3d 1368, 1373-74 (5th Cir. 1993). The challenge
is without merit.
The Prosecutor struck the African-American venireperson
because he was too young, uneducated, had not worked in a company
setting and had no religious preference. The defense compared him
to three other jurors who each possessed at least one of the named
qualities. The seated jurors also possessed other qualities the
Government found redeeming. Simply put, the jurors were not
similarly situated.
Defendant makes similar arguments with regard to the two
Hispanic venirepersons. The first was struck due to potential bias
against the prosecution because a close relative was convicted by
federal prosecutors. Defendant compares her to two jurors with DWI
convictions but the convictions did not involve federal
prosecutors. The second Hispanic venireperson was struck because
he was unhappy with the prosecutions in two cases where close
family members were killed. The juror who Defendant argues is
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similarly situated suffered a similar tragedy but expressed no
dissatisfaction with the prosecution in that case. Defendant has
failed to show discriminatory intent.
We AFFIRM Jimenez's conviction but VACATE his sentence and
REMAND for resentencing.

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