United States v. Stern ( 1994 )


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  •                 UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 92-2300
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    AARON STERN,
    Defendant, Appellant.
    No. 93-1047
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    LAWRENCE GORDON,
    Defendant, Appellant.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    Before
    Boudin, Circuit Judge,
    Coffin and Campbell, Senior Circuit Judges.
    Martin D. Boudreau for appellant Aaron Stern.
    Lawrence Gordon on brief pro se.
    Paul  G.  Levenson, Assistant  United States  Attorney, with  whom
    A. John  Pappalardo, United  States  Attorney, was  on  brief for  the
    United States.
    January 20, 1994
    BOUDIN,  Circuit Judge.    The  Miller  Act,  40  U.S.C.
    270a-f  requires all  contractors  bidding for  government
    construction   contracts  in  excess   of  $25,000   to  post
    performance  and payment  bonds, and  the  Air Force  further
    requires  that a  bid bond  accompany  the bid  itself.1   In
    order to qualify for  consideration, contractors must  submit
    bonds  issued  by  companies approved  by  the  United States
    Treasury  and listed  in  Treasury  Department Circular  570,
    commonly called the "T-list."  See  48 C.F.R.   28.202(a)(1).
    The  bonds  must  also be  submitted  on  standard government
    forms:   SF 24 (bid  bond), SF 25  (payment bond) and  SF 25A
    (performance bond).
    Defendant  Lawrence  Gordon  was   the  head  of   Tower
    Associates, Inc.,  a Winchester,  Massachusetts, construction
    company   seeking  to  secure   a  contract  to   renovate  a
    photography  laboratory at Hanscom Air Force Base in Bedford,
    Massachusetts.  In September 1988 Tower submitted the low bid
    for  the project,  offering to  perform  the renovations  for
    $1,000,200.  This bid was accompanied by a bid bond issued by
    Continental Surety Company, a surety or purported surety that
    did  not appear  on the  T-list and  which apparently  had no
    1"Bid  bonds"  ensure  that a  contractor  will  in fact
    undertake the contract if its bid is accepted;   "performance
    bonds"  guarantee  that  the  contractor  will  complete  the
    project  in accordance with the specifications;  and "payment
    bonds" ensure that those who  furnish labor and materials for
    the project will be paid.
    -2-
    assets.   The Air  Force employee responsible  for overseeing
    the  bidding process, Lorraine  McLoughlin, did not  at first
    notice  this problem  and Tower was  awarded the  contract on
    September 30, 1988.
    When   shortly   thereafter  McLoughlin   learned   that
    Continental was not an approved issuer, she called Gordon and
    informed him that Tower's payment and performance bonds would
    have to  be written by  a T-listed  company.  On  October 17,
    1988,  Gordon  presented  a  payment   and  performance  bond
    purportedly  issued by Amwest Surety Insurance Co., a company
    that did appear on  the T-list.  The bond bore  Tower's seal,
    as well as the signatures of Gordon and one "Alan Stime," who
    was  listed as  Amwest's  attorney-in-fact.    The  bond  was
    accompanied  by a power of attorney, purportedly from Amwest,
    also signed by "Alan Stime."
    The  Amwest bond and power of attorney were counterfeits
    fabricated by  James  Grier, the  principal  of  Continental.
    Grier later testified  at trial  that he  produced the  bogus
    documents  at Gordon's  request.   Sandra  Catalano, a  Tower
    employee, testified  at trial that  she was present  when the
    bond was  signed by  Gordon  and defendant  Aaron Stern,  who
    signed  the  bond as  "Alan  Stime."    At trial,  an  Amwest
    official testified  that the bond  was not  a genuine  Amwest
    bond  and  that  no "Alan  Stime"  was  or ever  had  been an
    authorized attorney in fact for Amwest.
    -3-
    The Air Force  rejected the phony bond  after McLoughlin
    noted that some of  the signatures on the bond appeared to be
    facsimiles  and that  the purported  Amwest  seal was  poorly
    impressed and  illegible.   On October  19, 1988,  McLoughlin
    requested that Tower resubmit its bonds and enclosed standard
    government bond forms.   The Air Force received  a second set
    of bonds, on the government  forms, from Tower on October 24,
    1988.   These bonds were  also purportedly issued  by Amwest,
    but the typed  name of the  attorney-in-fact under the  "Alan
    Stime" signature was "Aaron Stern."  By this time, McLoughlin
    had been  told by an  Amwest employee that Amwest  "had never
    heard of Tower Associates."
    Rather than  accept the bonds, McLoughlin forwarded them
    to the  Air Force Office  of Investigations and sent  Tower a
    notice to cure.   On November  18, 1988, McLoughlin  notified
    Gordon of her  communications with Amwest.   After requesting
    an  extension  of  time  to  submit  new  bonds,  Tower  sent
    McLoughlin  a  third  set  of  bonds on  December  13,  1988,
    explaining that Tower  "[had been] given a bond  which proved
    invalid."   This third  set of bonds,  like the  original bid
    bond, was issued by Continental  and signed by Aaron Stern as
    attorney-in-fact.   As Continental  was still  not on  the T-
    list, McLoughlin rejected the bonds.
    The Air Force terminated Tower's award on March 3, 1989,
    and eventually  awarded the contract  (without rebidding)  to
    -4-
    Fellsway,  Inc., which had  submitted the second  lowest bid.
    On  June 13, 1991, Gordon and Stern  were charged in a multi-
    count indictment with the following offenses:
    Count 1   Gordon  and  Stern   were  both  charged  with
    conspiring to defraud the United States in the
    solicitation  and  award of  the  construction
    contract at Hanscom Air Force  Base. 18 U.S.C.
    371 (conspiracy to defraud).
    Count 2   Both    defendants    were     charged    with
    counterfeiting the  October 17,  1988, payment
    and  performance  bond purportedly  issued  by
    Amwest Surety  Insurance Company. 18  U.S.C.
    494    (making,    uttering    or   presenting
    counterfeit bond).
    Count 3   Gordon was  charged with  knowingly presenting
    the same counterfeit bond to the Air Force. 18
    U.S.C.   494.
    Count 4   Gordon  and  Stern  were  both  charged   with
    uttering to  the Air Force a counterfeit power
    of attorney. 18 U.S.C.   495 (making, uttering
    or presenting counterfeit power of attorney).
    Count 5   Both  defendants   were  charged   with  false
    statements   in   completing   and  submitting
    Standard  Form  25,  the government  form  for
    performance bonds.   18  U.S.C.   1001  (false
    statement statute).
    Count 6   Both  defendants   were  charged   with  false
    statements   in   completing   and  submitting
    Standard  Form 25A,  the  government form  for
    payment bonds.  18 U.S.C.   1001.
    After a jury trial, Stern  was convicted on counts 1 and
    4, and acquitted on count 2. Gordon was convicted on count 3,
    and acquitted  on counts 1,  2 and 4.   Both  defendants were
    convicted on Counts 5 and 6.  Gordon moved for a new trial on
    June  19, 1992,  arguing  that  the  verdict  was  internally
    inconsistent and  that the  government had  withheld material
    -5-
    exculpatory  evidence.  The district court denied this motion
    on December 18, 1992.
    On  October 13, 1992, the district court sentenced Stern
    to  a 60-day  term of  imprisonment, along  with a  period of
    supervised release.   Gordon  was sentenced  on November  24,
    1992, to  a 30-day  term of imprisonment  and nine  months of
    home confinement.  Both defendants were also held jointly and
    severally  liable  for  restitution.2    These   consolidated
    appeals followed.  Stern's counsel has briefed and argued the
    case; Gordon, with  this court's permission, has  relied upon
    his district court filings in support of a new trial.
    In  this court  both  defendants  claim  that  the  jury
    verdicts are internally  inconsistent.  Gordon argued  in the
    district court that since he was acquitted (under count 2) of
    counterfeiting the October  17 bond, it was  inconsistent for
    the jury then to convict him  (under count 3) of uttering the
    same counterfeit bond.  Stern  points to his own acquittal of
    the charge of counterfeiting  the bond (again under  count 2)
    and  protests that this acquittal undermines the jury verdict
    convicting Stern (under  count 4) of uttering  a forged power
    of attorney in support of the same bond.
    2Stern's  sentence  was  stayed  pending  appeal.    The
    district  court denied Gordon's motion  for a similar stay on
    January  19,  1993, but  this  court  stayed the  payment  of
    Gordon's restitution pending appeal on August 24, 1993.
    -6-
    Both objections lack  merit.  As the  defendants purport
    to recognize, general  jury verdicts may not  normally be set
    aside for inconsistency as between counts.  United States  v.
    Powell,  
    469 U.S. 57
    ,  64-65  (1984);  United   States  v.
    Bucuvalas, 
    909 F.2d 593
    , 597  (1st Cir. 1990).   The reasons
    are explained by  Judge Friendly in United States v. Maybury,
    
    274 F.2d 899
      (2d Cir.  1960),  and do  not need  repeating.
    Maybury is relied on  by both defendants because the  appeals
    court there did set aside  verdicts as inconsistent.  But the
    inconsistent verdicts  were there  rendered by a  judge in  a
    jury-waived trial.   The whole point of Maybury  is that (for
    both practical and historical reasons) the general verdict by
    a jury  is a  special case but  a requirement  of consistency
    does apply to written findings  made by a single judge.   
    Id. at 903
    .
    We  need not  discuss  other inconsistent-verdict  cases
    cited  by defendants  because,  as it  happens,  there is  no
    necessary inconsistency in the verdicts  in this case.  As to
    Gordon,  there  was  evidence  from  Grier  that  he  (Grier)
    fabricated the October 17, 1988, bond, but also evidence that
    Gordon  knew it was counterfeit and nevertheless presented it
    to the Air Force.  The jury may have supposed (quite wrongly)
    that Grier's admission entirely lifted responsibility for the
    counterfeiting from Gordon's  shoulders but also  permissibly
    -7-
    believed  that  Gordon uttered  the  bond  knowing  it to  be
    forged.3
    Similarly,  the  acquittal  of Stern  on  the  charge of
    counterfeiting the same bond, again quite possibly because of
    Grier's admission,  is in  no way  inconsistent with  Stern's
    conviction for uttering  to the Air Force the companion power
    of attorney document knowing it to be forged.  In addition to
    other  evidence to support the uttering conviction, there was
    direct  testimony  from Sandra  Catalano  that  Stern himself
    signed the bond using the phony signature "Alan Stime."
    Whether or  not Stern,  Gordon or  both could  have been
    convicted of procuring or participating in the counterfeiting
    of the bond itself is irrelevant.  It is sufficient to dispel
    the taint of inconsistency that a rational jury  could easily
    have acquitted on count 2  while convicting Gordon on count 3
    and  Stern on  count 4.   And,  as explained  at the  outset,
    inconsistency  would   not   in  any   event  undermine   the
    convictions  so  long as  they themselves  were, as  they are
    here, supported by sufficient evidence.  See Powell, 
    469 U.S. at 67
    .
    3Gordon's  claim that  the  conspiracy acquittal  (under
    count  1) is inconsistent with the uttering conviction (under
    count 3)  is even more  far-fetched.  True, the  uttering was
    charged as an  act in furtherance  of the conspiracy.   But a
    literal  minded jury might  believe that the  uttering itself
    was   proved  amply  but  that  the  "agreement"  element  of
    conspiracy had not been established.
    -8-
    Next,  Gordon claimed  in the  district  court that  the
    government violated its obligation, under  Brady v. Maryland,
    
    373 U.S. 83
      (1963),  to  produce  exculpatory  evidence  by
    failing to turn over the  grand jury testimony of Grier, whom
    Stern called as  a witness.  The background is  this:  Grier,
    called by Stern as a defense witness, was then cross-examined
    by Gordon's counsel--not by the  government.  On this  cross-
    examination, Grier proceeded to testify that Gordon had asked
    Grier to  forge the October  17, 1988 bond.   Although Gordon
    was acquitted of  that forgery, he was convicted  of uttering
    the  forged  bond,  and  the  Grier  testimony--elicited   by
    Gordon's own  counsel--may have  helped  to confirm  Gordon's
    knowledge of the forgery.
    After conviction  Gordon learned that  Grier, testifying
    in  the grand  jury prior  to trial,  had himself  denied any
    knowledge  of  the bond.    Gordon  moved  for a  new  trial,
    contending that the government's failure to produce the grand
    jury testimony at  trial as impeaching evidence  violated its
    obligation under  Brady.   In pre-trial  requests Gordon  had
    asked in general  terms for Brady material, but  he had never
    specifically  requested  production  of  prior statements  or
    testimony by Grier.  The  district court denied the new trial
    motion, citing United States v. Pandozzi, 
    878 F.2d 1526
     (1st
    Cir. 1989), and United States v. Carrasquillo-Plaza, 
    873 F.2d 10
     (1st Cir. 1989).
    -9-
    Under the Jencks  Act, 18 U.S.C.   3500,  the government
    is required to produce prior statements by its own witnesses,
    whether or  not the  statements are exculpatory.   And,  if a
    statement is  itself exculpatory, the  government under Brady
    is normally required to produce it, regardless of  whether it
    is made by a trial witness. See Brady, 
    373 U.S. at 86
    .  Here,
    says the government, Grier's grand  jury testimony was not  a
    prior  statement  by   a  government  witness,  nor   was  it
    exculpatory in the sense that it disproved Gordon's guilt.
    Thus, in the government's view, the grand jury testimony
    is  merely newly discovered  impeaching evidence.   Under the
    Wright-Martin  standard  for  a  new  trial  based  on  newly
    discovered  evidence, the ordinary requisites for a new trial
    on this ground  are specific and demanding.4   Gordon may not
    have met any of the requisites, and he certainly did not meet
    the requirement  that the  newly discovered  evidence be  (at
    least  in the  normal case)  "not merely  . .  . impeaching."
    Martin, 815 F.2d at 824 (quoting Wright, 625 F.2d at 1019).
    4A  new trial will ordinarily be denied absent a showing
    that
    (1)  the evidence was unknown or unavailable to the
    defendant at the time of the trial;  (2) failure to
    learn  of the  evidence  was  not  due to  lack  of
    diligence  by the defendant;   (3) the  evidence is
    material, and not  merely cumulative or impeaching;
    and (4)  it will  probably result  in an  acquittal
    upon retrial of the defendant.
    United States v. Martin, 
    815 F.2d 818
    , 824 (1st Cir.), cert.
    denied, 
    484 U.S. 825
     (1987) (quoting United States v. Wright,
    
    625 F.2d 1017
    , 1019 (1st Cir. 1980)).
    -10-
    Thus Gordon's only hope is  to argue that the grand jury
    testimony did have to be produced under Brady in which event,
    as  the government notes, the Wright-Martin standard does not
    invariably apply. See United States v. Sanchez, 
    917 F.2d 607
    ,
    617  (1st Cir.  1990),  cert. denied,  
    499 U.S. 977
      (1991).
    Rather,  there is a general obligation to produce exculpatory
    testimony and failures to comply are reviewed  after the fact
    under the standard  of United States v. Bagley,  
    473 U.S. 667
    (1985).  Bagley  is somewhat  opaque, there  being no  single
    majority opinion, but  reversal may be warranted  where there
    is a  "reasonable probability" that  the undisclosed evidence
    would havealtered the outcome. 
    Id. at 682
    (plurality opinion).
    Here the grand jury testimony was not exculpatory in the
    sense  that, reading  the  bare  language  before  trial,  an
    assistant U.S.  attorney would  think it  helpful to  Gordon.
    After  all, in the  testimony Grier  denied knowledge  of the
    forgery, a  position that could  be neutral in its  impact on
    Gordon or  even potentially  harmful to  Gordon (in  shifting
    responsibility  to someone  other than  Grier).   Only  after
    Grier, as  a defense witness  for Stern, named Gordon  as the
    procurer of the forgery did  the grand jury testimony take on
    a potential as impeaching evidence.
    The  government  protests   that  it   has  no   ongoing
    obligation  to monitor the testimony of defense witnesses and
    to  seek out prior  statements in its  files that  may in the
    -11-
    course of  trial  turn out  to  have impeachment  value  when
    defense testimony injures  a defendant.  Even if  it did have
    such an obligation in some instances, there would be  serious
    questions--not  easily answered  on  this record--whether  in
    this   case  Gordon's  own   access  to  Grier   negated  the
    obligation, see United States v.  Hicks, 
    848 F.2d 1
    , 3-4 (1st
    Cir. 1988), and whether the  failure of Gordon to request the
    grand jury testimony  is also fatal to the Brady  claim.  Cf.
    18  U.S.C.    3500(b) (request  by  defendant required  under
    Jencks Act); Carrasquillo-Plaza,  
    873 F.2d at 13
      (failure to
    make a specific request for alibi witness statements).
    We think that these interesting questions had best await
    another  occasion.   It  is  enough  in  this case  that  the
    impeaching  evidence, even if made available to Gordon, could
    not  conceivably have  altered the  outcome.   See  generally
    Pandozzi, 
    878 F.2d at 1528-30
    .   The jury acquitted Gordon on
    the counterfeiting  count despite Grier's  direct inculpation
    of Gordon; and the  knowledge element of the  uttering count,
    on  which Gordon was  convicted, was confirmed  by the direct
    testimony of another witness, Catalano,  as well as much else
    in Gordon's conduct.   Under Bagley, the  impeaching evidence
    does  not remotely "undermine confidence" in the outcome. 
    473 U.S. at 682
    .
    The final issue in this  case is the most perplexing and
    relates  solely   to  sentencing.     Under  the   Sentencing
    -12-
    Guidelines,5 the amount  of "the loss" is a  specific offense
    characteristic of crimes  involving fraud or deceit,  and the
    base  offense level  (6 levels) is  increased by  a specified
    number of levels  (from 0 to 11  additional levels) depending
    on the  amount of the  loss.  U.S.S.G.    2F1.1 (1988).   The
    adjusted  offense  level,  together  with  criminal  history,
    determines the sentencing range, and actual loss  may also be
    the basis for a restitution order. 18 U.S.C.   3663(b)(1).
    In  this  case, following  the pre-sentence  report, the
    district court found  that the loss to  the Air Force  of the
    fraudulent  activities  in  this  case  was  "the  difference
    between the bid price [by  Tower] and the award [to Fellsway,
    the  second  lowest  bidder] for  $88,477,  increased  by the
    restated administrative costs of $250" involved in reawarding
    the contract  to Fellsway.   The  resulting figure,  $88,727,
    increased the  base offense  level from 6  to 11,  U.S.S.G.
    2F1.1(b)(1) (1988), and  this in turn was increased  to 13 by
    5The   pre-sentence   report   referred   to  the   1988
    guidelines,  which  were   in  effect  when  the   crime  was
    committed.    Current  practice  would  normally  invoke  the
    guidelines  in effect  at the  time  of sentencing--the  1991
    version  for Stern and  the 1992 version  for Gordon--barring
    any ex post facto problems.  See Isabel v. United States, 
    980 F.2d 60
    , 62  (1st Cir. 1992).   But since  the 1991 and  1992
    guidelines employ a  new loss/increase- in-level  table which
    would have resulted  in a higher base offense  level for both
    Stern and Gordon than provided for under the 1988 guidelines,
    we  cite  to  the  1988   version.    See  United  States  v.
    Harotunian, 
    920 F.2d 1040
    , 1042 (1st Cir. 1990).
    -13-
    the  addition  of two  more  levels  for  "more than  minimal
    planning."  
    Id.
       2F1.1(b)(2).
    The loss attributed to Stern may well have had no effect
    on his sentence  of confinement; a downward  departure, based
    on assistance to  the government, reduced his  confinement to
    below the minimum range that  would have prevailed if no loss
    had  been   attributed  to   him.     Gordon's  sentence   of
    confinement, also  based on  a downward  departure, might  or
    might  not  have  been  affected  by  a  lower  loss  figure,
    depending on  how small  a loss was  imputed.6  But  based on
    the imputed loss of $88,727,  both defendants were ordered to
    pay  restitution--Stern to pay $88,727 and Gordon $80,000--so
    the importance of the loss figure is obvious.
    At this  point, some procedural  history is needed.   In
    the district  court, both  defendants challenged  the $88,727
    loss figure on somewhat different grounds.  Then, while these
    appeals were pending, someone apparently happened  upon Judge
    Posner's decision in United States v. Schneider, 
    930 F.2d 555
    (7th Cir. 1991), which undoubtedly made the government uneasy
    about the  loss calculation in this case.   In any event, the
    government and  defendants entered into a  joint stipulation,
    6Gordon's departure was based on the theory that the Air
    Force could  have rebid the  entire contract  for $10,000  (a
    figure supplied by the Air Force), instead of merely awarding
    it  to the previous second lowest bidder.  Cf.  United States
    v.  Gregorio, 
    956 F.2d 341
    ,  344-48  (1st Cir.  1992).   The
    government did not appeal this departure.
    -14-
    proposing  that this court  remand the case,  before deciding
    the merits, for  resentencing in light of  Schneider; and the
    parties stipulated further that
    1.   The parties  jointly stipulate  that the  best
    readily  calculable measure  of the  loss from  the
    offenses of  conviction, for  purposes of  applying
    the  Sentencing  Guidelines,  is  $ 20,450.    This
    amount  includes both an attempted gain of $ 20,200
    (the purchase price for a  genuine bond of the kind
    that  was   forged  in   this  case),   and  actual
    consequential  losses  of  $  250 (the  immediately
    identifiable administrative  costs associated  with
    the  re-awarding  the   Photolab  contract).    For
    purposes of ordering  restitution, only the  actual
    loss figure, $ 250 is subject to restitution.
    2.  The United States further reserves the right to
    argue    that    the    stipulated    amount--while
    representing   the   best   readily   ascertainable
    estimate of  loss--understates the  full extent  of
    the  loss in question.   The United  states further
    reserves the right  to argue that, given  the small
    sum of restitution payable, fines should be imposed
    upon each  defendant, in an  amount to be  fixed in
    light of the defendants' resources.
    This court denied  the motion to remand,  believing that
    the challenges to the convictions ought to be decided  before
    any remand for fine-tuning the  sentences.  Stern, taking the
    view  that the  stipulation  was binding  only if  this court
    ordered an immediate remand, has  argued in his brief in this
    court that no  loss, apart perhaps from the  $250 involved in
    shifting the  award to the  second bidder, has been  shown by
    the government.  The government  adheres to its request for a
    remand in accordance with the stipulation, arguing that Stern
    has waived  the contention  he now makes.   Gordon  has urged
    nothing beyond the stipulation.
    -15-
    It would  be a  hazardous venture to  lay down  abstract
    rules  as  to  how  "loss"  is to  be  calculated  under  the
    governing guideline even if the focus were narrowed to  false
    statements in bid  documents.  As Judge Posner  made clear in
    Schneider, the  underlying  facts  of  individual  cases  may
    differ  widely, and even in comparable situations, what proof
    is available as to specific items of loss will vary from case
    to case. See 
    930 F.2d at 557-59
    .  Further, we note that  the
    deceptively simple notion  of "loss" is elaborated  under the
    guideline  to include situations  of foreseeable  or intended
    losses, see U.S.S.G.   2F1.1,  application note 7 (1988), and
    in later  versions to cover various specific  types of fraud,
    e.g.,  
    id.,
      application  note 7(e)  (1993)  (Davis-Bacon Act
    fraud).
    If  we   agreed  with  the  district   court's  original
    calculations of loss, we would not remand the case regardless
    of the stipulation of  the parties, since the parties  cannot
    by agreement create error where none exists.  On this record,
    however, we  think that  there is no  basis for  mechanically
    measuring the  loss as the  difference between the  two bids.
    The problem is that the government never showed that it could
    have secured a  bid from a properly bonded  contractor at the
    price offered by Tower.  Without such evidence, it is hard to
    see how  the government  can measure its  loss on  the theory
    -16-
    that, but for  the fraud, it would have  enjoyed that initial
    low price.7
    On certain facts--say,  a general increase in  the level
    of  second  round bids  after  a  rebidding due  to  fraud--a
    calculation  of  loss  based on  the  differential  between a
    tainted first-round best  bid and a higher  second-round best
    bid  might be entirely  persuasive.  But  here the government
    simply  took  the   second  best  first-round  bid   with  no
    rebidding; and its administrative costs in shifting the award
    from Tower to  Fellsway were admittedly minimal ($250).   The
    probation  reports and the  government urged the  loss figure
    adopted  by  the  district judge,  and  the  defendants while
    protesting did  little to undermine  it.  Yet  the government
    itself no longer supports the $88,275 figure, and we can find
    no basis to sustain it on the present record.
    Conversely, we reject Stern's "no loss at all" argument,
    at least so  far as concerns the guideline  calculation.  The
    section  2F1.1 guideline  commentary,  from the  1988 version
    (application note 7)  to the present 1993 version  (id.), has
    included  the  "probable"  or "intended"  or  "expected" loss
    7It is true that if the Amwest bond had been a real bond
    instead of a forgery, then  the government would have enjoyed
    the original  low price;  and in this  sense the  forgery may
    seem like the cause of that  loss.  But there is no  evidence
    that Tower Associates could ever  have secured a real bond by
    a T-list surety or, if it could, that its bid would have been
    as low.  Indeed, Continental  seems to have been an off-shore
    "front" for contractors who could not get T-list bonding.
    -17-
    threatened by a defendant's conduct as an alternative measure
    of  loss if that figure can be  determined and is larger than
    actual loss.  The evident purpose of the alternative is to be
    certain  that attempted fraud does not escape all adjustments
    based  on magnitude merely because the  fraud miscarried.  We
    think that  this is  just such a  case where  the foreseeable
    loss exceeded the actual loss.
    It was plainly foreseeable at the time of the fraud that
    the Air Force might be deceived by the phony Amwest  bond and
    might finally award the contract to Tower.  At that point, it
    is  hard  to know  the precise  risk of  loss imposed  on the
    government,   for  it  would  depend  on  many  circumstances
    including the likelihood that Tower would flawlessly complete
    the contract.  Yet "the amount of loss  need not be precise,"
    U.S.S.G.    2F1.1, application  note 7  (1988); and,  broadly
    speaking, to inflict  a phony  construction-contract bond  on
    the government  exposes the government to the average cost of
    failure to perform the contract adjusted  by the average risk
    of failure to  perform.  That adjusted figure  should also be
    the approximate price of the average bond for such a project.
    Of  course, the  pertinent  figure  could  be higher  if  the
    government  sought  to  prove  that  Tower  was  a  high-risk
    contractor and would have been charged more for a valid bond.
    -18-
    To assume that the phony bond might well be accepted is,
    in  a  case  like  this  one,  entirely  fair.    It  is  the
    defendants' intended outcome and, given possible carelessness
    by administrators or merely a  good forgery, it is normally a
    realistic likelihood.  From the standpoint of the guideline's
    "intended or probable  loss" criterion, we see  nothing wrong
    with the use of the cost of  a valid bond as a fair proxy for
    the potential loss  caused by the uttering of  the phony bond
    and forged  power of attorney.   In this case,  the potential
    was not  realized, but  it was still  intended or  reasonably
    likely and thus a proper measure of loss under the guideline.
    Consequently, we think that the principle underlying the
    first paragraph  of the  quoted stipulation  is a  legitimate
    basis in this case for calculating loss under  the guideline;
    whether the  $20,200 figure is  binding on Stern is  a matter
    that can be resolved on remand if Stern seeks to disclaim the
    stipulation.8  Of course,  the government did not offer  such
    evidence  of bond cost in the original sentencing proceeding;
    but   where  a   sentence  is   vacated   and  remanded   for
    redetermination under  correct principles, the  government is
    not automatically foreclosed from offering evidence pertinent
    8The   district  court  is  not  required  to  accept  a
    stipulation on an issue of fact  pertinent to sentencing, but
    is free  to do  so given the  apparent reasonableness  of the
    proposed  figure.  This assumes, of course, either that Stern
    withdraws his disclaimer (as he  would plainly be wise to do)
    or  that  the   district  court  decides  that   his  initial
    acceptance of the stipulation is binding in any event.
    -19-
    to the newly announced rule.  See United States v. Sepulveda,
    
    1993 U.S. App. LEXIS 33020
    , *107 n.31  (1st Cir.,  Dec. 20,
    1993).
    Restitution is  a different matter.   We agree  with the
    government's  concession that  the intended or  probable loss
    cannot be  the measure of  restitution:  it  is one  thing to
    base a criminal sentence on the magnitude  of threatened harm
    but quite another to  "restore" to the government money  that
    it  never  lost.   Here,  the actual  loss  is only  the $250
    administrative  cost of reawarding  the contract.   Given the
    common interrelationship  between fines  and restitution,  we
    see no  reason why  the government should  not be  allowed to
    argue for a fine on remand.
    Accordingly,  the judgment of conviction in each case is
    affirmed,  and the sentence and  the orders of restitution in
    each  case  are  vacated  and  the  cases  are  remanded  for
    resentencing  in  accordance  with  this  opinion.    Further
    proceedings on remand are for the district court to determine
    in the first instance.
    It is so ordered.
    -20-