161860P.pdf   01/19/2018  United States  v.  Gilbert Lundstrom
   U.S. Court of Appeals Case No:  16-1860
                          and No:  16-2313
   U.S. District Court for the District of Nebraska - Lincoln   
   [PUBLISHED] [Wollman, Author, with Arnold and Gruender, Circuit Judges] 
   Criminal case - Criminal law and sentencing. In prosecution of the former 
   Chief Executive Officer of TierOne Bank, the evidence was sufficient for 
   the jury to find beyond a reasonable doubt that defendant possessed the 
   knowledge of the conspiracy and the intent to defraud necessary to sustain 
   his conspiracy and fraud convictions; the government provided defendant 
   with the discovery needed for him to understand the nature of the charges, 
   prepare a defense and avoid any surprise, and the district court did not 
   err in denying his motion for a bill of particulars; evidentiary 
   challenges rejected; no error in giving a willful blindness instruction or 
   in refusing to give defendant's proposed advice-of-counsel instruction; no 
   error in calculating the amount of the loss attributable to defendant's 
   offense conduct under Guidelines Sec. 2B1.1(b)(1); no error in imposing a 
   leadership enhancement under Guidelines Sec. 3B1.1(a) as defendant 
   directed or enlisted subordinates and the fraud was "otherwise extensive;" 
   claim that defendant's 132-month sentence, which was a downward variance 
   from this Guidelines range of 360 months, was substantively unreasonable 
   rejected; where, as here, a district court varies below a correctly 
   calculated Guidelines sentence, it is nearly inconceivable that the court 
   abused its discretion in not varying downward still further; $3.12 million 
   restitution award affirmed; for restitution purposes, where a defendant's 
   fraudulent conduct entices victims to enter the market in the first place, 
   the defendant assumes responsibility for their losses, including those 
   resulting from market forces.