The 8th U.S. Circuit Court of Appeals on Friday affirmed a former TierOne Bank CEO’s criminal conviction for a scheme to defraud the bank’s shareholders and mislead regulators before the bank failed in 2010.
Gilbert "Gil" Lundstrom, 76, was sentenced to 11 years in prison in 2016 and ordered to pay $3.1 million in restitution after a jury in Lincoln found him guilty of 12 counts, including wire fraud, securities fraud and falsifying bank records.
He is serving the sentence at the United States Penitentiary in Leavenworth, Kansas, and is not set for release until 2025, according to Federal Bureau of Prisons records.
In June, Circuit Judges Roger Wollman of Sioux Falls, South Dakota, and Raymond Gruender of St. Louis, Missouri, and Senior Judge Morris Arnold of Little Rock, Arkansas, heard arguments in Lundstrom's appeal in St. Paul, Minnesota.
His attorney, Dan Collins, was seeking a new trial, arguing that the trial judge should have acquitted Lundstrom because he hadn't directed others at the bank to do anything criminal.
Lundstrom also was challenging the length of his sentence and how the restitution amount was calculated.
In a 34-page opinion Friday, the three-judge panel concluded that the evidence was sufficient for the jury to find beyond a reasonable doubt "that Lundstrom possessed the knowledge and intent required to sustain his convictions.”
It was Lundstrom himself who directed a spreadsheet be prepared to quantify projected losses in TierOne’s loan portfolio, Wollman wrote.
Then, he said, not only did Lundstrom take no corrective action upon getting the information, he opposed the disclosure of it to the board of directors. When that effort failed, he insisted that the spreadsheets be collected at the end of the board meeting, rather than placed in the board binders, where bank regulators would see them, and ordered that notes about the board’s discussion at its May 2009 meeting on nonperforming loans be removed from the official minutes.
Wollman said it was for the jury to consider and determine the truth of Lundstrom’s assertions.
"The evidence pointed inexorably to the conclusion that Lundstrom knew of the deteriorating quality of the bank’s loan and foreclosed-on property portfolios and its precarious overall financial condition, and that he then offered false representations in regulatory filings and press releases about TierOne’s capital position and regulatory compliance,” he said.
Lundstrom can seek a rehearing by the three-judge panel or a hearing by the full panel.