United States v. Rudolph W. Beuttenmuller and Larry R. Gill , 29 F.3d 973 ( 1994 )

E. GRADY JOLLY, Circuit Judge:

Rudolph W. Beuttenmuller and Larry R. Gill appeal criminal convictions arising out of their involvement in a complex real estate sales transaction involving the now-failed Shamrock Federal Savings Bank. The government contends that these defendants conspired with and aided and abetted bank officials in an illegal “cash for trash” scheme to sell — and thus remove from the bank’s records — undesirable real estate owned (“REO”). Various other offenses are alleged to have been involved in the scheme, including a false entry in bank records. Shamrock Savings, however, was legally entitled to remove through a sale property classified as REO. It was entitled to search for a purchaser willing to buy the property, to loan up to eighty percent of the purchase price in a non-recourse loan, and to arrange an exchange of equity to accomplish its goal of removing the REO from its books. The only restriction on the bank’s right to remove REO was that its plan and arrangements for disposing of the REO must comply with applicable laws and regulations. Because we conclude that the government failed to prove the defendants’ conduct violated laws of the United States, we reverse their convictions on all counts.

I

In 1986, Jerry D. Lane, the chairman, president, and chief executive officer of Shamrock Savings, a federal stock savings bank with deposits insured by the Federal Savings and Loan Insurance Corporation (“FSLIC”), realized that the savings and loan’s real estate portfolio was rapidly deteriorating. In an effort to stabilize its portfolio, Shamrock Savings foreclosed on seventy-seven Austin, Texas residential lots, known as the Tanglewood property, that secured a loan accounting for more than seventy percent of Shamrock Savings’ total capital.¹ Following foreclosure, the Tanglewood property was accounted for as “real estate owned,” or “REO,” on the balance sheet of Shamrock Savings. Not surprisingly, such a large amount of REO caused an accounting problem for Shamrock Savings. If the Tangle-wood property remained classified as REO at the end of the fiscal year, which would close on September 30, Shamrock Savings would be required to create on its balance sheet a substantial reserve against capital. Consequently, Shamrock Savings began looking for a buyer for the Tanglewood property in order to reduce the value of the REO account — an acceptable procedure for the bank to follow so long as requirements of banking regulations were met.

Meanwhile, two investors previously unconnected with Shamrock Savings, Larry Gill and Richard Billings, were experiencing their own financial difficulties. Gill and Billings were investors who formed a joint venture, known as the Mansfield 150 Joint Venture, to manage and develop approximately 155 acres of vacant agricultural land in Mansfield, Texas (referred to hereafter as the “Mansfield property”). The Mansfield property was encumbered by several deeds of trust, securing in excess of $2,220,000 in mortgage and related debt.² Gill and Billings were personally hable for a substantial portion of this debt, and, because the property itself generated no income, Gill and Billings were required to make interest and principal payments from personal resources.

During the summer of 1986, Gill and Billings were seeking an investor or lender to reheve them of the Mansfield property’s crushing debt. Gill and Billings unsuccessfully contacted more than fifty potential investors without success. Eventually, Gill contacted Jack D. Franks, a real estate consultant, broker, and speculator with ties to numerous thrift institutions.³ Franks, on behalf of Gill and Billings, began negotiations with Shamrock Savings through Jerry Lane in hopes of persuading Shamrock Savings to invest in the Mansfield joint venture. A series of meetings and conferences were held during July and August, involving Lane, Franks, Gill, and Billings. These meetings and conferences resulted in the following transaction:

(a) Shamrock Land, a wholly owned subsidiary of Shamrock Savings, would pay $753,290.63⁴ in cash to the Mansfield 150 Joint Venture for a forty-five percent (45%) equity interest in the joint venture. The sole asset of the joint venture was the Mansfield property, which, at the time of the transaction, had an appraised value of approximately $4 million.⁵

(b) As part of the consideration for the interest in the Mansfield joint venture, Shamrock Land had a non-recourse obligation to pay all future financing payments of the Mansfield 150 Joint Venture arising out of the Mansfield property, including all principal and interest due on its outstanding debt obligations, which would be repaid to Shamrock Land upon sale of the property.⁶

(c) As partial payment for their equity in the Mansfield property, both Gill and Billings would receive $50,000 each in cash at closing.⁷

(d) Franks would receive a finder’s fee of $50,000 in return for his services. This fee was to be paid at the closing of the Mansfield property transaction out of the $753,290.63 paid by Shamrock Land.

(e) After closing the Mansfield transaction, Gill and Billings, through the newly created Southmeadow Joint Venture, would buy the Tanglewood property, which had an appraised value of approximately $2.9 million, from Shamrock Savings for $2,725,000.

(f) Of the $753,290.63 paid by Shamrock to the Mansfield 150 Joint Venture for the Mansfield property, $555,000 would be paid back to Shamrock Savings as a twenty-percent (20%) down payment on the Tanglewood property. The balance of the $2,725,000 purchase price would be paid through a $2,500,000 non-recourse loan for which neither Gill nor Billings would have personal liability. This non-recourse loan included an interest reserve of approximately $330,-000.

(g) Shamrock Homes Construction, a newly organized wholly owned subsidiary of Shamrock Land, would market the residential lots that make up the Tangle-wood property after the sale of the property to Gill and Billings even though Shamrock had no further property interest in the Tanglewood property. All expenses associated with the maintenance and marketing would be paid by Shamrock Homes. Proceeds from the sale of any of the Tanglewood lots would be used to reduce the balance of the loan held by Shamrock Savings.

In preparation for the closing of the sales transaction and after completing the negotiations among the parties, Lane retained Beut-tenmuller, a partner in the law firm of Gregory, Self & Beuttenmuller, to prepare all the necessary documentation for the transaction. Beuttenmuller structured the closing so that Shamrock Land would first purchase the interest in the Mansfield 150 Joint Venture. After completing that portion of the transaction, the parties would then complete the sale of the Tanglewood property. All would occur at Beuttenmuller’s offices on September 30, 1986, the last day in Shamrock Savings’ fiscal year.

On the day of the closing, it became clear that all would not go as originally planned. At the closing, Franks increased his finder’s fee from $50,000 to $100,000, a move that required Shamrock to supply an additional $50,000 cash at closing. In an effort to avoid the need for Shamrock to bring additional cash to the closing table, Beuttenmuller suggested that Billings receive the $50,000 he was slated to receive for his equity interest in the Mansfield property as a real estate commission on the Tanglewood property. The parties agreed to this and several other minor changes, and they signed the settlement statements. In addition to the settlement statements, the parties also executed a letter agreement concerning the Bank Tying Act.⁸ This letter agreement, which was intended to preclude Gill and Billings from later suing Shamrock Savings under the Tying Act, described Shamrock payment to the Mansfield 150 Joint Venture and the contemporaneous purchase of the Tanglewood property as a “single integrated exchange transaction.”

After completing the closing, Beuttenmul-ler forwarded the settlement documents to Southwest Title with escrow instructions. He also delivered to Lane a binder containing copies of the closing documents for the Mansfield property. This binder contained, along with the other closing documents, a copy of the letter agreement. Beuttenmuller sent a separate binder containing the closing documents for the sale of the Tanglewood property. This Tanglewood binder included the settlement statement reflecting the $50,-000 “brokerage commission” to Billings, but did not contain a copy of the letter agreement expressly tying the two transactions together. Both closing binders were placed among Shamrock Savings’ records and they served as a primary source of information to bank personnel, auditors, and examiners.

As a direct result of the Tanglewood/Mans-field transaction, Shamrock Savings completed its fiscal year reporting an after-tax income of over $600,000. The $163,000 profit reported by Shamrock Savings in connection with the sale of the Tanglewood property to Gill and Billings through the Southmeadow Joint Venture accounted for approximately twenty-five percent (25%) of consolidated income for the year.

Pursuant to the obligations it had undertaken at the closing, Shamrock Land paid the interest and expenses associated with the Mansfield property. Shamrock Homes also paid all the sales and maintenance expenses associated with the Tanglewood property, even though that property was owned by Gill and Billings through the Southmeadow Joint Venture. While Billings had virtually no involvement with the property, Gill executed the necessary documents as individual lots were sold by Shamrock Land to other third-parties.

Approximately two years later, on October 14,1988, the FSLIC declared Shamrock Savings insolvent and closed the bank. At the time Shamrock Savings was declared insolvent, the investment in the Mansfield 150 Joint Venture was included among Shamrock Savings’ assets. At that point, Shamrock Land had paid approximately $1.4 million in loan payments, general expenses, and marketing expenses associated with the Mansfield property. Shamrock Savings eventually foreclosed on the Tanglewood property, and at the time the bank failed, the Tanglewood property was again classified as REO.

II

On March 19, 1992, Gill, Beuttenmuller, and Lane were indicted for alleged criminal conduct related to the Tanglewood/Mansfield real estate transaction. Gill was charged with one count of conspiracy to defraud the United States, to defraud a federally insured financial institution, to make false entries on the books of such institution and to misapply funds of the institution. He was further charged with two counts of bank fraud, and two counts of misapplication of funds belonging to Shamrock Savings, and aiding and abetting bank fraud and misapplication of funds. Beuttenmuller was also charged with one count of conspiracy, and with one count of false entry in credit institution reports, and aiding and abetting false entry. Lane was charged with one count of conspiracy, two counts of bank fraud, two counts of causing false entries to be made, and two counts of misapplication of funds. Gill and Beuttenmuller both pleaded not guilty. Lane, however, pleaded guilty to the one false entries count.⁹

Gill and Beuttenmuller were tried before a jury. The jury convicted Beuttenmuller of conspiracy to commit bank fraud, and aiding and abetting a false entry in credit institution reports. Although the jury acquitted Gill of the conspiracy charge, the jury convicted him of aiding and abetting bank fraud and aiding and abetting misapplication of bank funds. The district court sentenced Beuttenmuller to two nine-month prison sentences, to run concurrently, and a $50,000 fine. Gill was sentenced to sixteen months imprisonment and a $50,000 fine. Both defendants appeal, arguing that the evidence is insufficient to support their convictions.¹⁰

Ill

A

First, Beuttenmuller contends that there was insufficient evidence to allow the jury to convict him for conspiracy to defraud the United States in violation of 18 U.S.C. § 371.¹¹ The standard of review of a sufficiency of the evidence claim relating to a criminal conviction is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Kindig, 854 F.2d 703, 706-07 (5th Cir.1988). A verdict must be upheld if there is substantial evidence to support it. Id. at 707. To establish a violation of § 371, the government must prove beyond a reasonable doubt 1) that two or more people agreed to pursue an unlawful objective; 2) that the defendant voluntarily agreed to join the conspiracy; and 3) that one or more of the members of the conspiracy performed an overt act to further the objectives of the conspiracy. United States v. Tullos, 868 F.2d 689, 693 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3171, 104 L.Ed.2d 1033 (1989).

The government argued to the jury and argues to us on appeal that the unlawful objective of the conspiracy was to conceal the true nature of the Tanglewood REO by disposing of it through an illegal “cash for trash” transaction.¹² In this transaction, the government argues, Gill and Billings had no legitimate role, but acted only as “straw men” through which Shamrock Savings could sell its REO by providing all of the money for the sale. Beuttenmuller contends, however, that there is insufficient evidence in this record to allow a rational fact finder to conclude that these transactions were part of an illegal scheme. Consequently, he argues that because the underlying transaction was not proved illegal, there is insufficient evidence that would allow a jury to conclude that he had agreed to pursue an illegal objective.

A “cash for trash” scheme is an illegal scheme that allows an institution to sell REO that has been wholly financed in violation of banking regulations that require at least a twenty percent down payment. Although there are no cases giving a precise definition, as we understand the term from this case and other cases, a “cash for trash” transaction is a transaction in which an institution effectively gives cash to somebody—usually in the form of a loan—to be applied as a down payment on the purchase of the institution’s REO.¹³ “Cash,” of course, refers to the money provided to the purchaser of REO while “trash” refers to the property classified as REO. See also United States v. Best, 939 F.2d 425, 426 (7th Cir.1991) (en banc), cert. denied, — U.S. -, 112 S.Ct. 1243, 117 L.Ed.2d 476 (1992) (involving a scheme where the institution gave money to borrower in form of loan and that money was tendered back to the institution as a down payment on REO, thus, resulting in 100 percent financing).

In this case, there is insufficient evidence to allow a jury to convict on the government’s theory that the Mansfield/Tanglewood transaction amounted to a “cash for trash” scheme. As noted above, a jury could conclude that this transaction was a “cash for trash” scheme only if Shamrock Savings effectively gave Gill and Billings the down payment money. The undisputed evidence, however, demonstrates that Shamrock did not give Gill and Billings the REO down payment money; instead, Shamrock tendered approximately $753,000 in exchange for a forty-five percent interest in the Mansfield property.¹⁴ Gill and Billings then, in turn, tendered a portion of that money as a down payment on the Tanglewood property, Shamrock Savings’ REO. Thus, the pivotal issue in this case is whether there was sufficient evidence to allow a jury to conclude— beyond a reasonable doubt — that the Mansfield portion of the transaction was not within the range of a value-for-value transaction; if the Mansfield portion of the transaction was not, then Shamrock Savings effectively gave Gill and Billings the REO down payment money.

There are two scenarios in which a jury rationally could conclude that the sale of the Mansfield property was not a value-for-value transaction: (1) if the Mansfield property had no value; or (2) if the value of the Mansfield property was so low that the transaction was essentially a sham designed to cover the fact that Shamrock Savings was gratuitously providing Gill and Billings with the down payment money for the purchase of REO. The only evidence in this record concerning the dollar value of the Mansfield property demonstrates that, at the time of the transaction, the property had an appraised value of at least $4 million. The government offered no evidence that the Mansfield property had no value, or that it was so valueless that the transaction was a sham.¹⁵ This record demonstrates that a reasonable fact-finder could not find beyond a reasonable doubt that Shamrock Savings did not receive valuable consideration in exchange for the $753,000 it paid to Gill and Billings. Gill and Billings then used a portion of the money from that sale to make a down payment, resulting in a twenty percent down payment on the REO, which complied with banking regulations. The objective of a “cash for trash” scheme is for an institution to remove REO from its books by illegally providing full financing of a purchase price of REO, including the required twenty percent down payment — which indeed was the contention of the government in this case at trial and on appeal.¹⁶ The transaction in this case was not “cash for trash” because the purchase of the Tanglewood REO was not illegally financed by Shamrock Savings.¹⁷ Because the government has failed to provide sufficient evidence that the object of the conspiracy was illegal, we reverse Beuttenmul-ler’s conviction for conspiracy.

B

Gill argues that there is insufficient evidence to support his convictions on one count of aiding and abetting¹⁸ bank fraud in violation of 18 U.S.C. § 1344,¹⁹ and two counts of aiding and abetting misapplication of funds in violation of 18 U.S.C. § 657²⁰—all counts relating to the same underlying transaction discussed above.²¹ Specifically, Gill contends that the government failed to prove that he had the requisite intent, and—given that we have held that the government failed to prove that the Tanglewood-Mansfield transaction was illegal—we agree. To convict a defendant of aiding and abetting, the government must prove that the defendant intentionally associated with a criminal venture, participated in the venture, and sought by his actions to make the venture succeed. United States v. Murray, 988 F.2d 518, 522 (5th Cir.1993); United States v. Parekh, 926 F.2d 402, 406 (5th Cir.1991); see also 18 U.S.C. § 2 (1969).

Under the government’s theory of this case, the conviction for aiding and abetting the misapplication of funds and defrauding the bank rides or falls on whether Shamrock’s purchase of an interest in the Mansfield property was a sham. Because we have already held that the government failed to prove beyond a reasonable doubt that the Mansfield/Tanglewood transaction was less than a value-for-value transaction, Gill’s intent cannot be inferred from the circumstances surrounding the transaction. Thus, there being no underlying criminal venture involved here, we reverse Gill’s conviction on each count.

C

Finally, Beuttenmuller contends that the evidence presented by the government is insufficient to support his conviction for aiding and abetting the making of a false entry in the records of a financial institution. 18 U.S.C. § 2(b) (1969); 18 U.S.C. § 1006 (Supp.1993). To prove that Beuttenmuller is guilty of aiding and abetting in violation of 18 U.S.C. § 2(b),²² the government must demonstrate beyond a reasonable doubt 1) that Beuttenmuller willfully associated himself with a criminal venture, and willfully participated in it, as if it were something that he wished to bring about; and 2) that each element of the offense that Beuttenmuller is accused of aiding and abetting was committed by some other person. United States v. Parekh, 926 F.2d at 407 (holding that the government must prove that “the defendant associated with a criminal venture, participated in the venture, and sought by his action to make the venture succeed.”); see also United States v. Murray, 988 F.2d at 522.

In this ease, the “criminal venture” of which Beuttenmuller has been convicted is aiding and abetting Jack Lane in making a false entry in bank documents in violation of § 1006.²³ Specifically, the government contends that designating the $50,000 cash payment to Richard Billings as a commission on the Tanglewood property transaction rather than as payment for Billings’ equity was a false entry violation of § 1006. To prove a violation of § 1006, the government must show beyond a reasonable doubt 1) that Shamrock Savings was a lending institution authorized and acting under the laws of the United States; 2) that Lane was an officer, agent, or employee of the bank; 3) that Lane knowingly and willfully made, or caused to be made, a false entry concerning a material fact in a book, report, or statement of the bank; and 4) that Lane acted with intent to injure or defraud the bank or any of its officers, auditors, examiners, or agents. United States v. Tullos, 868 F.2d at 693-94 (emphasis added); United States v. Stovall, 825 F.2d 817, 823 (5th Cir.1987). Although we were unable to find cases defining what constitutes a “material fact” with respect to 18 U.S.C. § 1006, cases construing a similar statute, 18 U.S.C. § 1001, have defined the term as “hav[ing] a natural tendency to influence, or be[ing] capable of affecting or influencing, a government function.” United States v. Swaim, 757 F.2d 1530, 1534 (5th Cir.1985), cert. denied, 474 U.S. 825, 106 S.Ct. 81, 88 L.Ed.2d 66 (1985). Put differently, “[t]he concealment ‘must simply have the capacity to impair or pervert the functioning of a government agency.” Id. (quoting United States v. Lichenstein, 610 F.2d 1272, 1278 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980)); United States v. Beer, 518 F.2d 168, 170 (5th Cir.1975). While materiality rests upon a factual evidentiary showing by the prosecution, the actual determination of materiality is a question of law for the court, and as such, it is reviewed de novo. United States v. Lichenstein, 610 F.2d at 1278.

In this case, the government provided sufficient evidence at trial to demonstrate that Shamrock Savings was a lending institution authorized and acting under the laws of the United States, and that Lane was an officer of the bank. The government also offered proof sufficient to show that characterizing the equity payment as a “commission” was false. Beuttenmuller contends, however, that there is insufficient evidence to demonstrate that Lane made, or caused to be made, a false entry concerning a material fact. The government, on the other hand, argues that there is sufficient evidence in the record to demonstrate that designating the equity payment a “commission” concealed the material fact that the sale of the Tangle-wood and Mansfield properties were related.

We find Beuttenmuller’s argument persuasive. The simple fact is that the government provided no evidence or rationale to demonstrate that the false characterization concealed a material fact. No banking regulator — or any other witness for that matter— testified how this false entry would adversely affect the function of a governmental agency. No evidence was presented to demonstrate that a regulator would have probed any further or done anything different if the $50,000 payment to Billings had been labeled an equity payment instead of a commission; no evidence or rationale was presented to show that designating the payment an equity payment would have led to the discovery of the connection between the sales of the Mansfield and Tanglewood property. Although it may be atypical for a buyer to receive an equity payment, as far as this record shows, it is equally atypical for a buyer to receive a commission on the sale of property it purchases. The effect of either designation, equity or commission, on any governmental agency function is simply unknown to us — as it was to the jury — because the government failed to provide relevant testimony or rationale to shed light on this question. But cf. United States v. Swaim, 757 F.2d at 1535 (noting that testimony of bank official established the materiality of the concealed fact). Without such evidence, the jury could not conclude beyond a reasonable doubt that designating an equity payment a commission was a false entry concerning a material fact. Thus, we reverse Beuttenmuller’s conviction on this count.

IV

Throughout this case, the government has, rather vehemently, argued that this complex real estate transaction was fraught with illegal conduct. Notwithstanding the government’s polemics, the simple facts are these: Shamrock Savings had the right to dispose of its REO; it had a right to locate and to negotiate with willing purchasers; it had the right to lend the purchaser of REO eighty percent of the purchase price; Gill and Billings had the right to purchase the REO with the proceeds from the sale of the Mansfield property; and, generally, these parties had the right to deal with one another and construct a complex conditional real estate sales transaction that benefitted each party. The only thing these parties had no right to do was violate any statute, regulation, or law in the process. The government has failed to prove beyond a reasonable doubt, however, that these parties violated any statute, regulation, or law.

There is nothing unusual about people, who can economically benefit each other, getting together and constructing a mutually beneficial bargain. Moreover, no criminality can be attached to Beuttenmuller, Gill, Billings, or Shamrock Savings because the bottom dropped out of the real estate markets. The decline of any market is part and parcel of the risks of investing. Based upon the reasons given in this opinion, the convictions of Rudolph W. Beuttenmuller and Larry R. Gill are

REVERSED.

1 . At the time of foreclosure on September 1, 1986, principal and accrued interest on the defaulted loan totalled $2,464,000.

2 . Gill and Billings originally purchased a 150-acre tract that later became known as the Mansfield property for $1,875,000. Soon thereafter, they purchased an adjoining 5.7 acres for $130,-393. This adjoining 5.7-acre property provided valuable highway access to the remaining 150 acres, thus, increasing the overall value of the combined tracts. Additionally, Gill and Billings began meeting with the planning and zoning commission, city engineers, and ultimately the City Council in an effort to rezone the property. After rezoning, the Mansfield property’s appraised value was over $4 million. See infra note 5.

3 .At trial, government witnesses testified that Franks was known in the industry as “Mr. Fix-it” for his ability to locate investors and buyers. Franks pleaded guilty to charges of unlawful participation in a transaction involving a financial institution wholly unrelated to Shamrock Savings. Pursuant to a plea agreement in connection with that unrelated transaction, Franks agreed to testify at any trial concerning any matter of which he had been involved — irrespective of whether his conduct in any particular matter was proper or improper. The government has not accused Franks of any improper conduct in this case.

4 . The $753,290.63 cash payment, which constituted only part of the total consideration paid by Shamrock, was "backed into" to provide sufficient cash to complete the sale of the Tangle-wood property and cover other necessary expenditures associated with the sale. This cash payment provided $555,000 as an approximately twenty percent (20%) down payment necessary to allow Shamrock Savings to record a sale of the Tanglewood properly. The remaining balance was applied to (a) cash payments to Gill and Billings for their equity interests in the Mansfield property ($50,000 each); (b) the finder's fee to Franks ($50,000); (c) expenses incurred by Gill and Billings in connection with the transaction ($34,509.63); and (d) title insurance premiums ($13,781.00).

5 . Gill and Billings first had the Mansfield property appraised in March 1986, long before Gill and Billings came into contact with Jerry Lane and Shamrock Savings. Kelly Miller, a licensed appraiser, stated in his appraisal that the property was worth $7,123,000. Later that year, in September, Gill and Billings sought an updated appraisal in preparation for the September 30th closing with Shamrock Savings. Miller, whose professional competence was never questioned, reappraised the property, again concluding that it was worth $7,123,000. There has been no suggestion at trial or on appeal that the appraisals are not an arms length, professional assessment of the property. Although the $7,123,000 figure was the only dollar valuation contained in the appraisals, there was some question raised at trial concerning whether this $7 million valuation was based on the present condition of the property, or whether it was based on the assumption that additional improvements would be made. At trial, Miller roughly estimated that those improvements could possibly cost between $1 to $3 million. Because we must view the evidence in the light most favorable to the prosecution, we will assume that the property had a net appraised value of $4 million. These appraisals and this testimony are the only evidence appearing anywhere in the record of the dollar value of the property at the time of the transaction in question. Thus, there is no evidence that would allow a rational jury to conclude beyond a reasonable doubt that the property was worth less than $4 million.

6 . Under the terms of the joint venture agreement entered into by Gill, Billings, the North Star Group (Franks), and Shamrock Land, upon sale of the Mansfield property, the proceeds would first pay off any indebtedness on the property and expenses associated with the sale. Any remaining proceeds would then first be distributed to Shamrock Land to compensate it for its initial $753,290.63 investment, and for any payments made on the indebtedness. Any remaining proceeds would then be divided among the joint ventures according to the formula contained with in the joint venture agreement.

7 . No one argues that it would be improper or unlawful for Gill and Billings to receive $50,000 as partial payment for their equity in Mansfield property.

8 . The Bank Tying Act is a federal statute that permits bank customers to seek civil damages when one transaction is conditioned on the customer’s willingness to complete a second transaction with the same institution.

9 . In exchange for his guilty plea to this and other charged offenses, Lane received a five-year prison sentence and a $100,000 fine. He also agreed to testify at Gill and Beuttenmuller's trial as a government witness.

10 . Beuttenmuller and Gill both presented additional arguments. However, in the light of our disposition of the sufficiency of the evidence issue, it is unnecessary to consider those arguments.

11 .Section 371 states in pertinent part that

[i]f two or more persons conspire to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. § 371 (1966).

12 . The government is not precise in its articulation of the unlawful objective of the conspiracy. Although at one point in its brief, it states that the illegal conduct is "that the Mansfield-South-meadow deal was a sham designed to move the Tanglewood lots off of Shamrock's books as REO and conceal the property’s true nature from federal regulators,” the government's argument is that the illegality of the conspiracy is established by the conspirators conspiring to have Shamrock pay its own cash for its own "trash.” Pointing to the legal requirement that Shamrock could finance no more than eighty percent of the purchase price of the REO, the government contends that all of the money used for the purchase of the Tanglewood REO came from Shamrock Savings, and that Gill and Billings brought nothing of value to the closing table. The government does not argue that any other circumstances of the removal of the Tanglewood REO from Shamrock Savings’s books constituted a violation of then-existing regulations. Thus, whether the theory that underlies all of the convictions in this case can be sustained—excluding Beuttenmuller's false entry conviction—depends upon whether the government proved beyond a reasonable doubt that the Mansfield portion of the transaction was “cash for trash."

13 . At trial, a government witness defined a "cash for trash” transaction as a transaction where “a lender ... would furnish financing for either the acquisition or refinancing of a person's property provided that a portion, if not all, of those funds were utilized in the acquisition of a problem loan or an REO on the books of that lender." A defense witness described the transaction as "giving somebody some money to buy something that you want to get rid of real bad.” (Emphasis added).

14 . To be precise. Shamrock Land purchased a forty-five percent interest in the Mansfield 150 Joint Venture. The sole asset of the joint venture was the Mansfield property. Thus, in effect, Shamrock Land purchased a forty-five percent interest in the land itself. For our purposes today, we will refer to this transaction as a purchase of a percentage of the real estate.

15 . Even if the jury accepted the lowest possible appraised value in the record — $4 million — the property still had approximately $1.8 million in equity value ($4 million net appraised value less $2.2 million in debt secured by the property) on the date of the transaction, September 30, 1986. Of this $1.8 million in equity, the joint venture agreement [Govt Exhibit 154] mandated that Shamrock receive the full return of its $753,290 initial cash investment plus any payments it made on the non-recourse note before any amount of the equity was divided among the joint venturers. Thus, under the least favorable scenario presented to the jury, at a bare minimum, Shamrock received dollar-for-dollar value in exchange for its $753,290 cash payment to the joint venture.

16 . There is no dispute that a bank can legally remove REO from its books by selling the property. To legally sell REO, a bank must receive the required down payment, typically at least a twenty percent of the purchase price. Once the bank receives the required down payment, the bank may legally finance the remaining purchase price.

17 . The dissent argues that the jury could reasonably infer the that the Mansfield property was worth something less than $4 million. To support this contention, the dissent makes several arguments. First, it attacks the appraisal, stating that the jury might have decided that it was “ridiculously speculative.” Although there was some question concerning the appraised value at trial, no evidence was introduced that could reasonably lead a jury to conclude that the appraisal was so flawed or otherwise invalid that the jury could ignore it altogether. Next, the dissent cites the general maxim that property is worth only what a buyer is willing to pay, noting that Gill and Billings were unable to find a willing buyer or investor for the Mansfield property — other than Shamrock Savings — in a relatively short period of time. It then concludes that this inability to locate a willing buyer greatly reduced the value of the property. Neither the jury nor the dissent, however, can rely on maxims as evidence. Nor does the real estate profession rely on maxims to establish property values; instead it looks to appraisals to determine what a willing buyer would pay. In this case, the only evidence in the record demonstrates that the Mansfield property had an appraised value of at least $4 million at the time of the transaction. This $4 million evaluation would have taken into account the conditions of the local market at the time, including any factors that slowed the market. Finally, the dissent contends that a jury could infer that the property was “essentially worthless” because “the property had sold a year earlier for about $2 million, and that about $2.2 million in debt was attached to it....” This argument, however, conveniently overlooks the rezoning that occurred since the property was sold for $2 million. The undisputed evidence in this record demonstrates that after the rezoning, the property had an appraised value of at least $4 million.

Given the dissent's attacks on the value of the property, we feel it necessary to point out that the Mansfield property had an appraised value of $4 million in April 1989, some three years after the transaction in question. It is true that this appraisal was not part of the record at trial, but was only introduced at sentencing. Nevertheless, the fact that the property was appraised at $4 million three years later in a declining real estate market verifies the record evidence concerning the value of the Mansfield transaction. We think that it verifies our conclusion, based only on the record evidence, that no juror could conclude beyond a reasonable doubt that the transaction in question was a cash for trash transaction.

18 . See supra note 21.

19 . Section 1344 states that

[wjhoever knowingly executes, or attempts to execute, a scheme or artifice ... to defraud a financial institution; or ... to obtain any of the moneys, funds, credits ... or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises shall be [guilty of an offense against the United States.]

18 U.S.C. § 1344 (Supp.1993).

20 . Section 657 states in pertinent part that

[any person] connected in any capacity with ... [a] savings and loan corporation or association ... authorized or acting under the laws of the United States or any institution the accounts of which are insured by the Federal Savings and Loan Insurance Corporation ... [who] willfully misapplies any moneys, funds, [or] credits ... belonging to such institution [shall be guilty of an offense against the United States.]

18 U.S.C. § 657 (Supp.1993).

21 . The jury convicted Gill of two counts of aiding and abetting bank fraud and two counts of aiding and abetting misapplication of funds. At sentencing, one count of aiding and abetting bank fraud was dismissed as multiplicious.

22 . Title 18 U.S.C. § 2(b) states that “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

23 . As it appeared in the jury instructions, 18 U.S.C. § 1006 states:

[A]ny officer, agent or employee of ... a savings and loan association ... authorized or acting under the laws of the United States or any institution, the accounts of which are insured by the Federal Savings and Loan Insurance Corporation ... [who] with intent to defraud ... [that institution] or to deceive any officer, auditor, examiner or agent of that institution or to deceive a department of agency of the United States ... makes any false entry in any book, report or statement of or to [that] institution ... [shall be guilty of an offense against the United States].

18 U.S.C. § 1006 (Supp.1993).