                   United States Court of Appeals

                       FOR THE EIGHTH CIRCUIT

No. 94-3148/3150/3301MNST

United States of America,       *
                                *
     Appellee/Cross-Appellant, *
                                *    Appeal from the United States
          vs.                   *    District Court for the
                                *    District of Minnesota.
Anne Stover and Rita Chandi,    *
                                *
     Appellants/Cross-Appellees.*

     On the Court's own motion, the opinion and judgment filed

August 15, 1996, are rescinded.   The attached revised opinion will

replace the opinion filed August 15, 1996.

                                  August 22, 1996

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.
____________

No. 95-3148
____________

United States of America,    *
                             *
                Appellee,    *
                             *

     v.                      *
                             *
Anne Stover, now known as    *
Anne Elise Cohen,            *
                             *
                Appellant.   *

____________

No. 95-3150
____________

United States of America,    *
                             *
                Appellee,    *
                             * Appeals from the United States
     v.                      * District Court for the
                             * District of Minnesota
Rita Chandi,                 *
                             *
                Appellant.   *

____________

No. 95-3301
____________

United States of America,    *
                             *
                Appellant,   *
                             *
     v.                      *
                             *
Anne Stover, now known as    *
Anne Elise Cohen,            *
                             *
                Appellee.    *
--------------

United States of America,           *
                                    *
                  Appellant,        *
                                    *
     v.                             *
                                    *
Rita Chandi,                        *
                                    *
                  Appellee.         *

                               ____________

                    Submitted:    February 14, 1996

                         Filed: August 22, 1996
                             ____________

Before McMILLIAN, LAY and HANSEN, Circuit Judges.
                           ____________

McMILLIAN, Circuit Judge.

     Before this court are two consolidated appeals and a cross-
appeal.   Anne Stover and Rita Chandi (together defendants) appeal
from separate and final judgments entered in the United States
District Court for the District of Minnesota after each pled guilty
to one count of mail fraud, in violation 18 U.S.C. § 1341.     Stover
was sentenced to twenty-four months imprisonment, three years
supervised release, a special assessment of fifty dollars, and
restitution in the amount of $40,000 to be paid jointly and
severally with Chandi.    United States v. Stover, No. CR 3-94-98(1)
(D. Minn. Aug. 21, 1995) (judgment).          Chandi was sentenced to
eighteen months imprisonment, three years supervised release, a
special assessment of fifty dollars, and restitution in the amount
of $40,000 to be paid jointly and severally with Stover.       United
States v. Chandi, No. CR 3-94-98(2) (D. Minn. Aug. 21, 1995)
(judgment).    For reversal, defendants argue that the district court

                                   -2-
clearly erred in finding that they knowingly targeted unusually
vulnerable victims for purposes of imposing a two-level sentencing

                               -3-
enhancement pursuant to U.S.S.G. § 3A1.1 (Nov. 1994).1                 Chandi
separately argues that the district court clearly erred in finding
that she was accountable for losses in excess of $500,000 as part
of her offense conduct under U.S.S.G. § 2F1.1(b)(1)(K).                     The
government, on cross-appeal, argues that the district court abused
its   discretion   in   failing   to   identify   the    victims      to    whom
restitution is owed and in ordering Stover to pay only $40,000 in
restitution when the undisputed evidence at sentencing showed a
loss to victims in the amount of $643,617.                For the reasons
discussed below, we affirm in part and reverse in part, and remand
the case to the district court for resentencing.

                              Background

      In December 1988, Stover founded Families for Children (FFC),
an adoption agency based in St. Paul, Minnesota.2         FFC was licensed
by the Minnesota Department of Human Services as a nonprofit
corporation in 1990 and registered with the Minnesota Attorney
General as a charity in 1992.      According to Stover, FFC initially
concentrated on placing for adoption children born in foreign
countries.    In   1991,   however,    FFC   shifted    its   focus    to   the
placement of American-born infants.      During the relevant period of
time, Stover had the title Executive Director of FFC and Chandi had
the title Associate Director of FFC.

      1
     Pursuant to guideline amendments effective November 1, 1995,
this guideline provision now appears in U.S.S.G. § 3A1.1(b).
      2
      There is some disagreement over whether Chandi participated
in founding FFC. She claims that she did not become involved in
FFC until 1992.   The indictment alleges that Stover and Chandi
founded FFC together in 1988, and Stover refers to herself and
Chandi as "co-founders" of FFC.

                                   -4-
     FFC operated by entering into contracts with prospective
adoptive individuals, couples, or families (hereinafter referred to
as "clients"), requiring them to pay an up-front fee ranging up to

                               -5-
$11,500.   Meanwhile, FFC would seek out pregnant women who were
willing to give up their babies for adoption (referred to as "birth
mothers"), by offering them financial and other forms of support.
FFC held itself out as specializing in open adoptions, in which the
birth mother would take part in the selection of the adoptive
parent or parents and would be permitted periodic contact with the
child.

     By mid-1992, the demand for children from FFC clients exceeded
FFC's available and anticipated supply.      Stover and Chandi began
lying to their clients.    According to the facts admitted in their
plea agreements, defendants

     knowingly made intentional misrepresentations to
     prospective and existing clients about the ratio of
     birth mothers to adoptive parents that were clients
     at FFC.     These intentional misrepresentations
     included, but were not limited to, statements at
     various   times   that   FFC   was   working   with
     approximately 30 birth mothers, and had only
     approximately 30 waiting clients. In reality, at
     the time these statements were made, the true
     number of birth mothers was much lower than stated,
     and the true number of waiting clients was much
     higher than stated.

Designated Record at 24-25 (Stover's Plea Agreement ¶ 1); id. at
31-32 (Chandi's Plea Agreement ¶ 1).

     On October 4, 1993, the Minnesota Attorney General's Office
filed a complaint against FFC and also applied for and obtained a
temporary injunction closing down FFC and appointing a receiver to
wind up FFC's affairs.    According to the government, upon examining
FFC's records, authorities discovered that FFC had approximately
seventy-five clients on its waiting list and was working with only
one or two birth mothers as of October 1993.    Id. at 9 (Indictment
¶ 18).

                                  -6-
-7-
       The government states that Stover's salary was $88,000 per
year as of June 1992 and, after further raises (which she gave
herself), was up to $95,150 per year as of October 1993.                               The
government further alleges that Stover paid herself $2,500 per
month in "rent" for FFC's use of the basement of her house, even
though her monthly mortgage payment for the whole house was only
approximately $1,500; she also used FFC funds to pay for a car for
herself,    day   care    for    her    children,        and    domestic    services.
Chandi's    salary   during       the   same      time     period     increased       from
approximately $21,000 to $42,500 per year.

       On August 24, 1994, defendants were charged in an eighteen-
count indictment.        They each pled guilty to count eight of the
indictment, alleging mail fraud in violation of 18 U.S.C. § 1341.
The plea agreement included a provision acknowledging the district
court's authority, pursuant to 18 U.S.C. § 3663(a)(3), to order
restitution in any amount up to and including the amount of loss
deemed to be relevant conduct under U.S.S.G § 3F1.1(b)(1).

       The presentence investigation report (PSR) recommended that
each defendant receive a two-level upward adjustment for targeting
unusually   vulnerable         victims.         U.S.S.G.    §   3A1.1    (Nov.    1994)
(vulnerable   victim      enhancement).           Defendants        objected     to   the
recommendation.          The    government       supported       it   and   submitted
extensive documentation, including victim impact statements, to
illustrate the manner in which defendants allegedly preyed upon
people who were particularly desperate to adopt.                      At sentencing,
the district court applied the two-level victim-related enhancement
to each defendant's guidelines calculation.

       The PSR also set forth the precise amount of loss suffered by
each   of   seventy-two        FFC     clients,     which       totalled    $643,617.
Consequently, defendants' base offense level of 6 was increased by
10 pursuant to U.S.S.G. § 2F1.1(b)(1)(K) (offense conduct provision

                                          -8-
requiring a 10-level increase if loss is more than $500,000).    The
PSR also recommended exact restitution to each victim.

     The district court calculated Stover's and Chandi's total
offense levels as 17 and 15, respectively.     Each was assigned a
criminal history category I.   Stover was sentenced to twenty-four
months imprisonment and Chandi was sentenced to eighteen months,
each receiving the lowest sentence within their respective ranges.
As to restitution, the district court initially ordered defendants
to pay restitution as ordered by the probation office, without
specifying the amount of restitution owed or the names of the
victims.   The government moved for modification of the restitution
order on grounds that the order lacked sufficient specificity.    In
its written judgments and commitment orders, the district court
ordered defendants each jointly and severally accountable to pay
$40,000 in restitution, but still did not specify the names of the
victims or the amounts owed to them individually.    These appeals
and cross-appeal followed.

                             Discussion

Application of vulnerable victim enhancement

     Defendants argue that the district court erred in giving them
each a two-level upward adjustment under the vulnerable victim
provision, U.S.S.G. § 3A1.1 (Nov. 1994), which provides: "[i]f the
defendant knew or should have known that a victim of the offense
was unusually vulnerable due to age, physical or mental condition,
or that a victim was otherwise particularly susceptible to the
criminal conduct, increase by 2 levels."       The district court
explained its reasons for imposing the two-level adjustment under
§ 3A1.1 as follows.

                                -9-
      This crime involved fraud that preyed upon
the victims' willingness to spend large amounts of
money in order to adopt children. This situation
is similar to

                         -10-
     the scenarios described in Application Note 1 to
     § 3A1.1, which indicates that the enhancement
     should apply "where the defendant marketed an
     ineffective cancer cure or in a robbery where the
     defendant selected a handicapped victim."[3] The
     victims' strong desire to adopt made them
     financially more vulnerable than other individuals
     and particularly susceptible to [defendants']
     criminal conduct.

Designated Record at 180-81 (statement of reasons for imposing
sentence (Stover) at 1-2); id. at 185-86 (statement of reasons for
imposing sentence (Chandi) at 1-2).         Defendants argue that the
district court based its decision upon the financial vulnerability
of their victims.   Therefore, they argue, the district court erred
because, according to this court's holding in United States v.
Ravoy, 994 F.2d 1334 (8th Cir. 1993), financial vulnerability is
generally not a ground for finding the existence of a vulnerable
victim.

     Defendants further argue that, under applicable case law, the
vulnerable victim enhancement applies only where there is evidence
of both an unusual vulnerability or particular susceptibility of
the victim and targeted exploitation of that weakness.           Defendants
maintain that the mere fact that their clients had the desire to
adopt children made the fraud possible, but did not make their
clients unusually vulnerable or particularly susceptible to the
crime.    See United States v. Paige, 923 F.2d 112, 113-14 (8th Cir.
1991) (reversing application of enhancement even though defendant
targeted    young   store   clerks      because   he     considered   them
inexperienced     and   naive;   such    clerks   were     not    unusually
vulnerable).    Even if their clients' desire to adopt was powerful,

     3
      In the current version of the Guidelines Manual, reflecting
amendments that became effective November 1, 1995, these examples
are contained in application note 2. U.S.S.G. § 3A1.1, comment.
(n.2) (Nov. 1995).

                                  -11-
defendants argue, there is no evidence that the clients' judgment
was particularly impaired.   Second, defendants argue that there was

                                -12-
no evidence that they targeted their victims' vulnerabilities, as
the law requires.          See, e.g., United States v. Callaway, 943 F.2d
29, 31 (8th Cir. 1991) (although victim was young and handicapped,
record does not support a finding that the defendant chose her
victim because of those factors); United States v. Cree, 915 F.2d
352,     354   (8th      Cir.   1990)   (enhancement    justified      only     when
defendant's actions in some way exploited or took advantage of the
victim's vulnerability).           On this point, defendants maintain that
they had every intention of successfully placing a child with each
of their clients and, therefore, this case is materially different
from those in which the fraud is based upon deliberately false
promises.      Defendants conclude that, because neither of the two
requirements exists in the present case, the district court erred
in   imposing      the    vulnerable    victim   enhancement     under    U.S.S.G.
§ 3A1.1.

       In response, the government argues that the district court did
not clearly err in making its vulnerable victim finding.                         The
government argues that this case is analogous to the example in the
commentary, to which the district court referred, concerning the
defendant who markets an ineffective cure for cancer.                     U.S.S.G.
§ 3A1.1, comment. (n.2) (Nov. 1995); id. comment. (n.1) (Nov.
1994).    The government maintains that many of defendants' victims
had problems with infertility and suffered the attendant emotional
effects of that condition.                 Moreover, the government argues,
defendants knew about these problems from the written forms filled
out by some of their prospective clients.               The government claims
that defendants targeted those clients' emotional vulnerability by
promising      a   "quick       fix."      The   government    maintains        that,
notwithstanding          the    district    court's    failure    to     cite    the
infertility of some of the victims as a ground for finding unusual
vulnerability, this court should uphold the sentencing enhancement
on that basis.

                                        -13-
      The government further suggests that the district court's
application   of   §    3A1.1    is   supported   by   cases   in   which    the
defendants were given the enhancement because they victimized a
specific group or class of people.             The government cites, for
example, United States v. McDermott, 29 F.3d 404, 411 (8th Cir.
1994), in which this court upheld the application of § 3A1.1 to the
sentences of two defendants convicted of racially-motivated hate
crimes where the victims included geographically-isolated, African-
American   youth       and   a   physically-disabled      fourteen-year-old
Caucasian girl.        The government notes that, in McDermott, this
court rejected the argument that the victims' race could not be the
basis for applying a § 3A1.1 enhancement even though the victims of
such civil rights violations typically are racial minorities.                Id.
at 411.4   Similarly, the government argues, the victims in the
present case shared a desire to adopt children and that desire may
have made the fraud possible, but it certainly did not diminish the
victims' particularized emotional vulnerability.               The government
also argues that defendants' claim of innocent intentions goes to
the   question   of    whether   there   was   intentional     fraud   and   is
irrelevant to this sentencing issue.              Moreover, the government
emphasizes the wording of § 3A1.1 which broadly states that the
two-level adjustment applies if the defendant "knew or should have
known" that the victim was unusually vulnerable or particularly
susceptible to the criminal conduct.         The government maintains that
the requirement in Eighth Circuit case law, that the defendant must
"target" an unusually vulnerable victim, should not eclipse the
plain meaning of the guideline provision.          See, e.g., United States
v. O'Brien, 50 F.3d 751, 757 (9th Cir. 1995) (emphasizing "knew or

      4
      Under the current version of the guidelines, reflecting the
amendments   effective   November   1,   1995,  a   defendant   who
intentionally selects a victim because of actual or perceived race,
color, religion, national origin, ethnicity, gender, disability, or
sexual orientation is now subject to a 3-level enhancement under a
separate subsection of § 3A1.1, entitled "Hate Crime Motivation."
U.S.S.G. § 3A1.1(a) (Nov. 1995).

                                      -14-
should have known" language as basis for affirming application of
§ 3A1.1 enhancement).

      We begin by noting that our analysis is complicated by the
fact that after defendants' sentencing, but before defendants'
appeals were submitted to this court, the sentencing guidelines
were amended, effective November 1, 1995.              As a consequence, what
was formerly U.S.S.G. § 3A1.1 became § 3A1.1(b).             The exact wording
of   the   guideline    provision      has     not    changed,   nor    have   the
hypothetical examples in the accompanying commentary.               However, the
commentary has been changed in one important respect.                    The pre-
November 1995 commentary included the sentence: "This adjustment
applies to offenses where an unusually vulnerable victim is made a
target of criminal activity by the defendant."               U.S.S.G. § 3A1.1
comment. (n.1) (Nov. 1994).             That commentary language was the
foundation for the targeting requirement relied upon in decisions
such as Cree, 915 F.2d at 353-54 (quoting commentary).                 However, in
the current version of the Sentencing Commission's commentary, that
key sentence has been replaced by the statement: "Subsection (b)
applies to offenses involving an unusually vulnerable victim in
which the defendant knows or should have known of the victim's
unusual vulnerability."        U.S.S.G. § 3A1.1(b) comment. (n.2) (Nov.
1995).      In    making     this    change,    the    Sentencing      Commission
specifically stated "[t]his amendment revises the Commentary of
§ 3A1.1 to clarify application with respect to [the targeted
victim] issue."       U.S.S.G. App. C, Amend. 521, at 430 (Nov. 1995)
(emphasis added).

      In the aftermath of this "clarification" by the Sentencing
Commission,      we   will   be     required    to    consider   carefully     the
continuing vitality of our previously well-established holding that
"enhancing a defendant's sentence based on victim vulnerability is
justified only when a defendant's actions in some way exploited or

                                       -15-
took advantage of that vulnerability."   Cree, 915 F.2d at 354.   We
note, for example, that in United States v. Feldman, 83 F.3d 9, 16

                               -16-
(1st Cir. 1996), the First Circuit observed that under the pre-
November 1995 guidelines

       the "target" language split the circuits on the
       issue of whether the government had to prove that
       the defendant was motivated by the victim's special
       vulnerability in order to lay a foundation for the
       upward adjustment, see, e.g., United States v.
       Smith, 39 F.3d 119, 124 (6th Cir. 1994); United
       States v. Cree, [915 F.2d at 354], or whether the
       government merely had to show that the defendant
       targeted his [or her] victim with the knowledge
       (actual or constructive) that the victim was
       unusually vulnerable, see, e.g., United States v.
       O'Brien, [50 F.3d at 754-55].

The First Circuit then concluded:

       [a]s for future cases, the Sentencing Commission
       has removed all reasonable doubt by amending the
       commentary to § 3A1.1. In an effort to resolve
       "some inconsistency in the application of § 3A1.1
       regarding whether this adjustment required proof
       that the defendant had 'targeted the victim on
       account of the victim's vulnerability,'" U.S.S.G.
       App. C, Amend. 521, at 430 (Nov. 1995), the
       Commission deleted the "target" language.

Feldman, 83 F.3d at 16.         Thus, the First Circuit held that cases
such    as     Cree   no    longer    represented       the   prevailing   rule.
         Id.

       In the present case, after defendants' appeals were submitted
to the court, the parties supplemented their briefs with letters to
the court concerning the applicability of the guideline amendments
to defendants' sentences.            Defendants argue that we should apply
the guidelines in effect at the time of sentencing, notwithstanding
the November 1995 amendments.          The government argues that Amendment
521    governs     the     present    case    because    it   is   expressly   a
"clarification" of the guidelines.

                                       -17-
     The government's position appears to be supported by United
States v. Stinson, 30 F.3d 121, 122 (11th Cir. 1994) (per curiam),

                              -18-
in which the Eleventh Circuit, on remand from the Supreme Court,
instructed the district court to resentence the defendant in
accordance with an amendment to the commentary of the guidelines,
even   though      that     amendment       had    become    effective    after       the
defendant's original sentencing.               The Eleventh Circuit's decision
to apply the guidelines amendment retroactively was based upon the
fact that the amendment was purportedly a "clarification" and not
a substantive change in the law.                  Id. ("[a]lthough we have doubts
that this amendment just clarifies the pertinent guidelines (as
opposed to making a substantive change in the law), we cannot
conclude that the Commission's viewing of the amendment as a
clarification                       is             plainly            wrong").
       However,      a      determination          that     an     amendment    is     a
"clarification" does not necessarily end the inquiry.                     In Stinson
v. United States, 508 U.S. 36, 42-43 (1993) (remanding the case to
the Eleventh Circuit), the Supreme Court held that, even though the
commentary to the guidelines is generally authoritative and binding
on the courts, "[i]t does not follow that commentary is binding in
all instances."          The Supreme Court went on to explain that "the
guidelines are the equivalent of legislative rules adopted by
federal agencies.           The functional purpose of commentary (of the
kind   at   issue    here)    is     to   assist     in    the    interpretation      and
application     of    those       rules."      Id.    at    45.     "[T]his    type    of
commentary    is     akin    to    an   agency's     interpretation      of    its    own
legislative rules."         Id.    "[P]rovided an agency's interpretation of
its own regulations does not violate the Constitution or a federal
statute, it must be given `controlling weight unless it is plainly
erroneous or inconsistent with the regulation.'"                       Id. (emphasis
added) (citations omitted).

       In United States v. Stinson, it was clearly understood that
the defendant's sentence would be decreased if the amendment were
applied.    30 F.3d at 122 (defendant's felon-in-possession offense
was basis for establishing his career offender status and amendment

                                            -19-
specifically excluded that offense from the category of predicate
crimes of violence).   Consequently, no issue existed as to whether

                                -20-
resentencing under the amended commentary would violate the ex post
facto    clause     of    the   Constitution.       In      the   present   case,    by
contrast, Amendment 521, affecting the commentary to § 3A1.1, would
have the effect, if any, of increasing defendants' sentences.
"Article I of the United States Constitution provides that neither
Congress nor any State shall pass any 'ex post facto Law.'"                     Miller
v. Florida, 482 U.S. 423, 429 (1987).                       As a general rule of
constitutional law, a violation of the ex post facto prohibition
occurs where (1) the law applied is retrospective, that is, it
applies to events occurring before its enactment, and (2) it is
disadvantageous to the defendant to whom it is applied, provided,
however, that it does not involve merely a procedural change and
its     onerous     effects     are    not    offset     by    other     ameliorative
provisions.       Id. at 430-32.       In the present case, the commentary to
U.S.S.G. § 3A1.1 is a "law" for purposes of engaging in ex post
facto analysis.          See, e.g., United States v. Levi, 2 F.3d 842, 844-
45 (8th Cir. 1993) (holding that, while the sentencing guidelines
and commentary are "laws" for purposes of ex post facto analysis,
some policy statements are not).                Therefore, notwithstanding the
Sentencing        Commission's        description      of     Amendent    521   as    a
"clarification," we hold that applying the new language set forth
in U.S.S.G. § 3A1.1 comment. (n.2) (Nov. 1995), as opposed to the
language set forth in U.S.S.G. § 3A1.1 comment. (n.1) (Nov. 1994),
would in this case violate the Constitution's prohibition against
ex post facto laws because: the application would be retrospective;
it would, if anything, increase defendants' sentences; it would not
merely involve a procedural change; and it would not be offset by
other ameliorative provisions.               We therefore decline to apply the
new commentary.          We analyze this particular case according to the
law as it existed at the time of defendants' criminal conduct,
which, for all intents and purposes, is the same as the law which
existed at the time of sentencing and at the time the parties
initially briefed this case.              We now turn to the merits of the
vulnerable victim issue.

                                         -21-
-22-
     We review for clear error the district court's finding that
there was a vulnerable victim in the present case.    United States
v. Cron, 71 F.3d 312, 314 (8th Cir. 1995); United States v. Boult,
905 F.2d 1137, 1138-39 (8th Cir. 1990) (existence of a vulnerable
victim is a factual determination reviewable under the clearly
erroneous standard).   In the present case, we are not dealing with
one of the types of victim vulnerability expressly enumerated in
§ 3A1.1 (i.e., age, physical or mental condition).   Rather, we are
faced with the difficult question of whether defendants' victims
were "otherwise particularly susceptible to the criminal conduct,"
within the meaning of § 3A1.1.   In United States v. Castellanos, 81
F.3d 108, 110-11 (9th Cir. 1996) (emphasis added), the Ninth
Circuit provided the following interpretation of that elusive
language, based upon a survey of numerous decisions of the federal
courts of appeals.

           [I]t is not enough to support a finding of
     particular susceptibility under § 3A1.1 that the
     victims are more likely than other members of the
     general population to become a victim to the
     particular crime at issue. The reason for this is
     that criminals will always tend to target their
     victims with an eye toward success in the criminal
     endeavor.   Thus, the chosen victims are usually
     more susceptible than the general population to the
     criminal conduct.

              The appellate courts have consistently
     refused to find a class of victims to be
     particularly susceptible to criminal conduct simply
     because they were statistically more likely to fall
     prey to the defendant's crime. . . .

           . . . .

           Especially in cases involving some kind of
     scheme to defraud, the criminal will typically
     direct his [or her] activities toward those persons
     most likely to fall victim to the scheme. But all
     defendants   targeting    such   victims   do   not
     necessarily merit a sentence enhancement under
     § 3A1.1. Otherwise, all but the most unthinking of

                                 -23-
criminal defendants would be candidates for upward
adjustment under § 3A1.1. Instead, the victims to
whom § 3A1.1 applies are those who are in need of
greater societal protection. . . . They are the
persons who,

                         -24-
     when  targeted  by  a  defendant,  render the
     defendant's conduct more criminally depraved.
     Paige, 923 F.2d at 113.

     We agree with the above-quoted interpretation of the phrase
"otherwise particularly susceptible to the criminal conduct," as
used in § 3A1.1.    With that in mind, we now turn to the arguments
presented in these appeals.       To begin, we agree with defendants'
argument that persons who desire to adopt, when victimized by a
scheme to defraud in the adoption business, are "[a]s a general
class, . . . not the type of class as a whole for which § 3A1.1 was
designed."    Brief for Appellant Stover at 12.    Cf. United States v.
Morrill, 984 F.2d 1136, 1137 (11th Cir. 1993) (en banc) (per
curiam) (on remand from the Supreme Court, holding that bank
tellers, as a group, are not "otherwise particularly susceptible"
to bank robbery within the meaning of the guidelines); accord
U.S.S.G. § 3A1.1(b), comment. (n.2) (Nov. 1995); id. comment. (n.1)
(Nov. 1994) ("a bank teller is not an unusually vulnerable victim
solely by virtue of the teller's position in a bank").

     However, the district court determined that the enhancement
was appropriate in the present case because defendants preyed upon
their victims' "strong desire to adopt" and their seemingly blind
willingness to spend large amounts of money toward that end.        The
district court compared the victims in the present case to the
hypothetical cancer patient looking for a cure, used as an example
in the commentary to § 3A1.1.        In light of that comparison, we
understand the district court's reasoning to be that defendants
preyed on victims whose particular susceptibility derived from
their "strong desire to adopt," not their financial circumstances.
Therefore, defendants' reliance on Ravoy is misplaced.         See Brief
for Appellant Stover at 9 (citing Ravoy, 994 F.2d at 1335-36
(vulnerable    victim   finding   based   upon   "distressed   financial
circumstances" was clearly erroneous because the victims, although

                                  -25-
mostly low-income people who had fallen on hard economic times,
lacked a sufficiently particularized vulnerability)).

       The case before us is similar in many respects to the example
in    the   commentary   referring       to    the     defendant    who     markets   an
ineffective cure for cancer.             In both cases, it appears that the
victims'     vulnerability      results        from     a   sense     of    desire    or
desperation,      presumably    created        by    circumstances     beyond    their
control.     However, in the commentary example, we can also presume
that the hypothetical victim of the fraud is a person afflicted
with a potentially fatal medical condition.                 Recognizing that there
are no bright lines in this analysis, we think the need for
societal protection, and the inference of heightened criminal
depravity, is greater in the cancer patient context than in the
adoption setting.        In our opinion, the cancer patient's inherent
desperation for a life-saving cure is sufficiently different from
the "strong desire to adopt" felt by the victims in the present
case that a distinction should be drawn for purposes of applying
§ 3A1.1.     Moreover, the mere fact that many of defendants' victims
were readily disposed to spend thousands of dollars in order to
pursue their heartfelt dreams of having a child still does not, in
our    opinion,     create   the     type       of    particular      susceptibility
contemplated by § 3A1.1.           The clients' willingness to spend such
large sums of money made them more likely to fall victim to
defendants' fraud, but did not create the extra need for societal
protection which § 3A1.1 is designed to address.                             Therefore,
without intending to discount the pain and disappointment suffered
by    defendants'    victims,      we    hold        that   the   district     court's
vulnerable victim finding was clearly erroneous.

       We   next turn to the government's main argument on this
issue -- that it was, more specifically, the infertility of some of
defendants'       victims    that       made     those      victims        particularly

                                         -26-
susceptible to the fraud.   As a threshold matter, we recognize that
we may consider this proposed basis to affirm, which was presented

                                -27-
by the government to the district court but not expressly mentioned
by the district court in its statement of reasons for making its
vulnerable victim finding.       See United States v. Garrido, 995 F.2d
808, 813 (8th Cir.) (the court of appeals may affirm on any ground
supported by the record), cert. denied, 510 U.S. 926 (1993).              We
further recognize that, given the proper set of facts, a person's
infertility, if known to the defendant, might support a finding of
particular susceptibility to adoption-related fraud.              Cf. United
States v. Malone, 78 F.3d 518, 522-23 (11th Cir. 1996) (affirming
application of § 3A1.1 adjustment to carjacking offenders who
targeted cabdrivers whom the defendants knew were required to take
certain unusual risks, as opposed to other less easily victimized
drivers).     However, upon careful review of the record in the
present case, we find no evidence that defendants offered their
services selectively rather than to the general public at-large.
Moreover, the evidence indicates that defendants vigorously pursued
the business of anyone who was willing to pay their fees, without
any genuine regard for how unfortunate the clients' particular
circumstances were.    In the present case, the fact that defendants
were able to bait and hook clients who had difficulties with
infertility, and were possibly emotionally distraught as a result,
was inherent in the nature of their ruthless crime, but does not
suggest that those victims were "targets" within the pre-November
1995 meaning of U.S.S.G. § 3A1.1.            In other words, the government
did not demonstrate that defendants' actions in some way exploited
or took advantage of the victims' infertility, or that any of the
victims were chosen for that reason.              Therefore, we hold that,
under the law applicable to the present case, the vulnerable victim
enhancement was not justified.         See, e.g., Callaway, 943 F.2d at
31;   Cree,   915   F.2d   at   354   (enhancement    justified   only   when
defendant's actions in some way exploited or took advantage of the
victim's vulnerability); U.S.S.G. § 3A1.1, comment. (n.1) (Nov.
1994) ("[t]his adjustment applies to offenses where an unusually

                                      -28-
vulnerable victim is made a target of criminal activity by the
defendant").

                             -29-
Amount of loss attributable to Chandi under U.S.S.G. § 2F1.1

       Chandi additionally argues that the district court imposed a
ten-level increase based upon a clearly erroneous finding that the
amount of loss for which she was responsible exceeded $500,000.
See U.S.S.G. § 2F1.1(b)(1)(K) (offense conduct provision requiring
a 10-level increase if loss is more than $500,000).               Chandi argues
that the $643,617 loss figure should have been reduced in her case
because (1) thirteen couples, whose fees accounted for $107,705 of
the $643,617 total figure, were FFC clients before she joined the
agency and (2) eight additional couples from New York, whose fees
accounted for $37,275, had no contact with her and only paid fees
pursuant to a New York law which limits fees to services rendered.
Chandi argues that, subtracting these amounts, the total loss
attributable to her is less than $500,000, thereby reducing her
total offense level by one.

       Upon review, we hold that, as to the New York clients, the
evidence supports an inference that Chandi did in fact have contact
with those clients.           In any case, under § 2F1.1, Chandi is
responsible     for   those    clients'     losses    because     they    were    a
foreseeable consequence of defendants' fraudulent scheme.                        See
U.S.S.G. § 1B1.3 (specific offense characteristics such as amount
of loss shall be based upon all reasonably foreseeable acts and
omissions of others in furtherance of jointly undertaken criminal
activity).      Chandi's      contention    that   New    York   law     prohibits
agencies from charging for services not yet rendered is irrelevant
because the payments made by the New York clients were all based
upon    FFC's   misrepresentations,         and    none   of     those    clients
successfully adopted a child through FFC.            Thus, the amount of loss
attributable to Chandi exceeds $500,000, regardless of whether she
may be held accountable for losses suffered by clients whom FCC
acquired prior to June 1992.               Accordingly, we hold that the

                                     -30-
district   court's   finding   as    to    the   total   amount   of   loss
attributable to Chandi was not clearly erroneous.

                                    -31-
Identification of victims in the restitution order

       The government argues, on cross-appeal, that the district
court abused its discretion in fashioning its restitution order.
First,      the    government       argues    that,       despite    its   repeated         and
specific requests, the district court failed to identify by name
the victims of the ordered restitution (i.e., the payees).                                  The
government maintains that it is implicit throughout the language of
18 U.S.C. § 3663 and U.S.S.G. § 5E1.1 (restitution), that, when
restitution is ordered, the victim must be specifically named.                              For
example,      the      government      points       out    that,     under      18    U.S.C.
§ 3663(h)(2), a victim named in a restitution order may enforce
that   order      as    a   civil    judgment;       however,       when   no   victim       is
specifically named in a restitution order, it is "problematic," if
not impossible, for victims to enforce the restitution order in the
event that the defendant fails to pay.                      Moreover, the government
points out, U.S.S.G. § 5E1.1 (emphasis added) provides that the
restitution order "should specify the manner in which, and the
persons to whom, payment is to be made."

       In    the    present     case,     the       restitution       section        of    each
defendant's        written     judgment      contains      the   following       statement
directly beneath the heading "Name of Payee": "Information to be
submitted by the probation office."                       Designated Record at 169
(Stover's judgment); id. at 174 (Chandi's judgment).                         Upon careful
review of the law governing the district court's authority to order
restitution, we hold that the district court lacked authority to
leave the designation of the payee or payees entirely to the
discretion of the probation office, as indicated in the written
judgments.        As a general rule, the district courts should designate
the recipient or recipients when ordering restitution pursuant to
18 U.S.C. § 3663.           See United States v. Miller, 900 F.2d 919, 922-
24   (6th    Cir.      1990)   (vacating      sentences       and    remanding        to    the

                                             -32-
district court for, among other things, clarification of "whom it
has found to be a victim entitled to restitution payments and the

                              -33-
amount of restitution each victim is to be paid"); accord United
States v. Seligsohn, 981 F.2d 1418, 1423 (3d Cir. 1992) ("the court
should designate recipients of the restitution").           The Sixth
Circuit's decision in Miller also raises the important point that
a lack of clarity with respect to victim identity and the amount of
restitution owed to each victim may complicate other matters -- for
example, determinations of whether restitution has been offset by
payment of a civil judgment, or vice versa.     900 F.2d at 922.     In
Seligsohn, 981 F.2d at 1424, the Third Circuit held that

     the unguided discretion to determine who are
     "victims" should not be entrusted to either the
     United States Attorney or the Probation Office. . .
     .

           . . . [T]he designation of those eligible
     should be made by name where that is possible.
     Where names are unknown, designations can be made
     by a description specific enough to provide
     appropriate guidance for the United States Attorney
     [or the Probation Office] in determining those
     entitled to share in the proceeds. . . . When the
     total available funds will be insufficient to pay
     all victims, a court should also devise a system of
     equitable priority or pro ration.

     In the present case, we direct the district court, on remand,
to identify the payees in the restitution order and to specify
either the amounts to be paid each victim or an appropriate method
of equitable distribution.

Amount of restitution as to Stover

     The   government   separately    argues   that   the   amount   of
restitution ordered by the district court, $40,000, is inadequate
as to Stover, particularly in light of the parties' acknowledgement
in the plea agreement of the district court's authority to order
restitution up to and including the full amount of the loss, in

                               -34-
accordance   with   18   U.S.C.   §   3663(a)(3)   (the   court   may   order
restitution in any criminal case to the extent agreed to by the
parties in a plea agreement).         The government notes that it twice

                                      -35-
asked the district court to order restitution in the full amount of
the loss (which was undisputed), or, in the alternative, to order
restitution in the amount of defendants' ill-gotten gains.               As to
Stover, the government maintains, this latter amount was nearly
$250,000, based upon the salary and expense money she received
during the relevant time period.       The government concludes that the
amount of restitution which Stover was ordered to pay, $40,000, was
so inadequate as to constitute an abuse of discretion.

     We agree with the government that the amount of restitution
Stover was ordered to pay is low.           However, in light of the wide
discretion ordinarily afforded the district courts in determining
the amount of restitution, United States v. Berndt, 86 F.3d 803,
809 (8th Cir. 1996), we hold that the district court did not abuse
its discretion in ordering Stover to pay $40,000, jointly and
severally with Chandi.

                                  Conclusion

     For the foregoing reasons, we reverse the district court's
imposition of a two-level upward adjustment under U.S.S.G. § 3A1.1
for each defendant; affirm the ten-level increase to Chandi's base
offense level under U.S.S.G. § 2F1.1; and affirm the amount of
restitution   ordered   to   be    paid     by   Stover.   We   vacate    each
defendant's sentence with directions to the district court to
resentence defendants without the vulnerable victim enhancement and
to amend the restitution orders in accordance with this opinion.

LAY, Circuit Judge, concurring and dissenting.

     I agree that the law applicable at the time of sentencing must
be applied for ex post facto reasons, that a "strong desire to

                                     -36-
adopt" a child does not make a person "unusually vulnerable," and
furthermore that the government failed to demonstrate that Stover

                              -37-
and Chandi "targeted" people on a selective basis of infertility
under U.S.S.G. § 3A1.1 & comment.(n.1) (Nov. 1994).

     Although the amount of restitution lies within the discretion
of the trial judge, this is a case, in light of the facts and
circumstances, in which the amount of restitution required of
Stover was an abuse of discretion.         The victims' total loss
exceeded $500,000, Stover's personal take was $250,000, and the
court made no finding that she personally was unable to pay a
larger amount of restitution.      The case should be remanded to
require Stover to pay restitution either in the full amount of the
loss or the amount of Stover's ill-gotten gains.

     A true copy.

          Attest:

                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                 -38-


181 Ill. App.3d 884 (1989)
537 N.E.2d 1321
SPOMENKA M. RYBAK, Plaintiff and Counterdefendant-Appellant and Cross-Appellee,
v.
DONALD J. PROVENZALE, Defendant and Counter-plaintiff-Appellee and Cross-Appellant.
No. 2-88-0170.
Illinois Appellate Court  Second District.
Opinion filed April 17, 1989.
*885 *886 *887 Susan E. Cox, of McDermott, Will & Emery, of Chicago (Douglas C. Tibble, of counsel), for appellant.
Thomas W. Fawell, of Thomas W. Fawell & Associates, P.C., and Katten, Muchin & Zavis, both of Oak Brook (John J. Curry, Jr., of counsel), for appellee.
Affirmed in part, and reversed in part and remanded.
PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court:
The plaintiff, Spomenka Rybak, a dentist, filed a four-count amended complaint in the circuit court of Du Page County against the defendant, Donald J. Provenzale, also a dentist, for breach of contract, breach of fiduciary duty, punitive damages, and conversion. Provenzale counterclaimed for breach of contract and fraud.
Following a bench trial, the court entered judgment in favor of Rybak against the defendant in the amount of $6,631.95 and denied the defendant any relief on his counterclaim. Both parties appeal.
Rybak's appeal presents these issues: (1) whether a written agreement between herself and the defendant was enforceable; (2) whether she was entitled to credit for funds held by the defendant under the terms of their oral contract; (3) whether the court's judgment is inconsistent with its findings of fact; and (4) whether compensatory and punitive damages should have been awarded due to the defendant's breach of his fiduciary duties to her. The defendant's cross-appeal presents these additional multipart issues: (5) whether the court's denial of his counterclaim is against the manifest weight of the evidence where (a) exhibit No. 100, a xerographic copy of the alleged written agreement, should not have been admitted, (b) exhibit No. 100 was wholly fraudulent, (c) Rybak's expert's testimony regarding exhibit No. 100 should not have been allowed, (d) the court failed to acknowledge Rybak's lack of credibility, and (e) Rybak breached her associate's *888 agreement with him and intentionally defrauded him; and (6) whether the court's judgment was against the manifest weight of the evidence as to (a) its $5,000 award for legal expenses and (b) its $1,631.95 award for unpaid compensation.
From 1975 to July 6, 1982, Rybak worked as a dentist in defendant's dental office in Downers Grove. Pursuant to an oral agreement which is undisputed by the parties, Rybak received as compensation 50% of the fees received from patients she treated, less laboratory and other expenses attendant to those patients. It was, and is, defendant's position that this remained the parties' agreement until Rybak left the office in July 1982 and relocated her practice. Rybak's contention, however, is that she and Provenzale subsequently orally modified this agreement in late November 1978 and in August 1979 and that the latter modification was memorialized by a written agreement on August 31, 1979. The defendant denies any of these subsequent oral or written modifications occurred or that he ever signed the written agreement identified at trial as plaintiff's exhibit No. 100 (PX100).
PX100 provided that all monies paid against the purchase of a partnership interest over and above $2,000 per month (Rybak's share of the office expenses) would be returned, with interest, to Rybak if she did not purchase a partnership interest in the defendant's practice. Rybak did not purchase a partnership interest in the defendant's practice, and she relocated her practice in July 1982. She contends the defendant retained a total of $54,568.17 over and above the $2,000 per month specified in the agreement. Rybak sought to recover this amount plus interest as provided by the parties' written agreement, or a total of $94,459.14 through January 1, 1988. Rybak also sought to recover $250,000 in punitive damages from the defendant due to his breach of his fiduciary duty to her.
The defendant maintained that he did not sign the August 31, 1979, agreement and that the only agreement which Rybak and he had with respect to her compensation was that she was to be paid 50% of her not collections (fees earned from her treatment of patients minus laboratory fees and other related expenses). The defendant's counterclaim sought to recover at least $32,128.10, which amount the parties stipulated Rybak collected and retained directly from patients treated by her after January 1, 1980, rather than processing the receipts through the defendant's office account. The defendant also sought punitive damages from Rybak in the amount of $250,000.
The trial court found the conduct of the parties showed their original agreement was changed and Rybak's compensation was no longer *889 limited to 50% of the net funds collected from patients treated by her. Although the court believed the defendant signed the agreement (PX100), it found PX100 was not sufficient to establish a contract between the parties and that it was "an agreement to agree to some other arrangement." The court also found, however, that PX100 was "sufficient to modify the original agreement limiting Ms. Rybak's compensation to only 50% of the funds she earned." Accordingly, it awarded Rybak $6,631.95 ($5,000 in lab dispute legal fees for which it found the defendant admitted responsibility, and $1,631.95 representing fees, less expenses, collected by the defendant between June 26 and July 6, 1982, for work done by Rybak). It denied the defendant's counterclaim in its entirety. Neither the court's oral decision nor written judgment specifically mentioned Rybak's claim for punitive damages, but in the course of its oral decision, the court stated: "[N]either side wins is what the decision is."
 1 The defendant has moved this court pursuant to Supreme Court Rule 362 (107 Ill.2d R. 362) for leave to amend his countercomplaint to include a third count for conversion. The motion was ordered taken with the case, and we now deny it.
The defendant's motion alleges that the "elucidation of the fact at trial that [Rybak] removed patient charts and ledgers from [his] practice without authorization" formed an integral part of her intentional scheme to wrongfully deprive his practice of fees, services and other assets. Defendant's motion further alleges that, inasmuch as Rybak's actions were "implied in and were necessarily related to the claims set forth in the Countercomplaint," it is necessary to amend the countercomplaint to conform to the evidence and to insure that justice is done between the parties. He alleges Rybak will not be prejudiced by the amendment since (at the time of the filing of the motion) her first brief had not yet been filed and she was advised of the claim for conversion contained in the amendment by virtue of the proofs and argument at trial.
Rybak filed her objections to this proposed amendment, asserting the amendment is not necessary in that it will not serve to complete the record, will not conform the pleadings to the proof, or correct any error in the pleadings. Further, it would be prejudicial to her in that it attempts to set up a new cause of action of which she had no prior notice and neither opportunity nor reason to controvert at trial. Lastly, the facts in the record do not support the proposed amendment and proof of numerous elements of the new cause of action would be required if the amendment were allowed.
This court has the authority to permit the amendment requested. *890 (See 107 Ill.2d Rules 362, 366(a)(1); Ill. Rev. Stat. 1987, ch. 110, par. 2-616(c).) However, the record does not support Provenzale's claim of conversion, and additional proof would be required. Provenzale's proposed amendment, in fact, is insufficient to state a cause of action for conversion in that it fails to allege a demand was made upon Rybak for return of the items. A.T. Kearney, Inc. v. INCA International, Inc. (1985), 132 Ill. App.3d 655, 664.
The lack of proof in the record on the elements of the claim contained in the proposed amendment belies Provenzale's assertion that Rybak had notice of the claim by virtue "of the proofs at trial." Nor did Provenzale's argument at trial put her on such notice where counsel argued Rybak's removal of the records from Provenzale's office was "part and parcel of [his] claim for fraud." Accordingly, we deny Provenzale's motion to amend his countercomplaint.

RYBAK'S APPEAL
The court specifically found Provenzale signed the agreement marked PX100, but it refused to enforce its terms on the basis it was "an agreement to agree to some other arrangement." Rybak contends the agreement is enforceable where the condition precedent to Provenzale's refund of the fees collected from patients treated by her and retained over and above $2,000 per month occurred: that is, she did not purchase a partnership interest in his practice. The defendant contends the court's refusal to enforce PX100 should be affirmed and argues that PX100 cannot be enforced as a binding contract inasmuch as it lacks certain definite terms with respect to the elements of an agreement to purchase part of the practice, such as specification of purchase price and the method of payment or financing of the purchase or terms of interest.
We are unable to reach the merits of this issue for several reasons. First, it is not clear from the record that PX100 actually was admitted in evidence. Second, assuming, arguendo, it was admitted, we cannot locate it amongst the numerous exhibits submitted with this record, and the facsimile provided in Rybak's appendix bears no identification number. Third, also assuming, arguendo, PX100 was admitted, we agree with the defendant that its admission was improper.
 2 In order to lay a foundation for the admission of a copy of an original writing, the proponent must prove the prior existence of the original, its loss, destruction, or unavailability, the authenticity of the substitute, and the proponent's own diligence in attempting to procure the original. (Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill.2d 193; Zurich Insurance Co. v. Raymark Industries, Inc. (1986), *891 145 Ill. App.3d 175, aff'd (1987), 118 Ill.2d 23; Electric Supply Corp. v. Osher (1982), 105 Ill. App.3d 46.) "When an original is traced to the possession of a third party, it must be shown that the third party cannot be subpoenaed to produce the original at trial or at a deposition and that no other judicial procedure compelling production is available." E. Cleary & M. Graham, Handbook of Illinois Evidence § 1004.4, at 670 (4th Ed. 1984).
 3 Rybak testified she gave the original agreement to Orrin Dressler so he could make copies of it for her. The original was never returned to her, although she testified she asked Dressler for it. Rybak offered no evidence to show that the original was lost, destroyed, or that Dressler was not subject to the subpoena power of the court. Rybak's argument, in fact, acknowledges Dressler's presence in the courtroom during trial, and the court commented that "only [Mr. Dressler] is aware as to what happened to and where the original which [Dr.] Provenzale signed disappeared to." Inasmuch as PX100 was inadmissible, we find no error in the court's refusal to enforce its terms.
Rybak next contends that even if the court did not err in finding that PX100 was not an enforceable contract, it erred by not finding the existence of an oral agreement between herself and the defendant after 1978 which obligated him to either credit her with $54,568.17 toward the purchase of a partnership interest or to return that amount to her with interest when she decided not to purchase a partnership interest.
 4 In order for an oral contract to be binding and enforceable, its terms must be definite and certain (Harmon v. Dawson (1988), 175 Ill. App.3d 846; Lal v. Naffah (1986), 149 Ill. App.3d 245; Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App.3d 787), and there must be a meeting of the minds (Richton v. Farina (1973), 14 Ill. App.3d 697). The party who asserts the existence of an oral agreement has the burden of proving its terms. (In re Estate of Kern (1986), 142 Ill. App.3d 506.) "[W]hether an oral contract exists, its terms and conditions and intent of the parties are questions of fact. A reviewing court may not reverse the judgment of the trial court merely because different conclusions could be drawn" (Kern, 142 Ill. App.3d at 514), but may reverse if the court's judgment is contrary to the manifest weight of the evidence (People v. Boyt (1984), 129 Ill. App.3d 1, aff'd (1985), 109 Ill.2d 403; Howard A. Koop & Associates v. KPK Corp. (1983), 119 Ill. App.3d 391). For a judgment to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the trier of fact is clearly evident. First Security *892 Bank v. Bawoll (1983), 120 Ill. App.3d 787, 794.
 5 The trial court found the original agreement between the parties "changed" and that Rybak's compensation was no longer limited to 50% of the funds earned for her treatment of patients. It also specifically found the defendant signed the August 31, 1979, agreement. It refused to find the agreement enforceable, however, and found Rybak had not established what portion of the funds retained she was entitled to recover.
The evidence supports a finding that the parties orally modified their original agreement in November 1978 to provide for a "cap" on the amount of funds the defendant would retain from the fees paid by patients treated by Rybak. Although the defendant did not want to simply lease Rybak space in his office because he expected her earnings to increase and, thus, his to increase also, he admitted he was interested in her becoming a partner and discussed the possibility of having an evaluation done of the practice. Rybak was dissatisfied with her position as an associate, recognized leasing space was less expensive than maintaining her own office, but lacked the funds to buy into the partnership. Thus, the proposed "cap" was beneficial to each parties' interest in eventually forming a partnership. Rybak testified it was determined at year's end that Provenzale's usual 50% share of the net fees earned from her treatment of patients was $2,000 and that amount was agreed upon as the cap.
Despite his admitted interest in Rybak's eventual partnership with him and knowledge that Rybak lacked the means to buy into the practice, Provenzale denied he agreed to the cap arrangement. However, an office employee, Lorna Konicki, testified the defendant told her when she began working in the office in 1979 that he and Rybak each had their own practice and that Dr. Rybak paid $2,000 toward expenses.
Rybak testified that on August 30, 1979, the defendant's 50% share of fees earned by her treatment of patients already exceeded the $24,000 yearly cap and she told him she wanted to draw on that excess amount. She testified the defendant told her, however, that he was "in the red." He proposed they continue the same split of funds collected and stated he would credit funds retained over the $24,000 toward her purchase of a partnership interest. Rybak liked the idea, but she wanted an agreement, and Provenzale told her to draft something. At home that evening, she typed a one-page, two-part agreement (identified at trial as discussed above as PX100). The top portion set forth her obligation to pay Provenzale $2,000 per month toward office expenses, and the bottom portion set forth, inter alia, Provenzale's *893 agreement to refund to her with interest "all monies paid against partnership purchase (over and above $2,000 a month pro shared office expenses)." Such refund was to be made "[i]n case that Spomenka Rybak, D.D.S. for any reson [sic] will decide not to finalize the purchase of the partnership."
Notwithstanding the inadmissibility and, thus, unenforceability of PX100, other secondary evidence of the terms and existence of an agreement between the parties which was admitted at trial supports a conclusion that Rybak and Provenzale mutually agreed to the terms testified to by Rybak. In addition to her testimony concerning the terms of the agreement, Rybak testified she presented the defendant with the agreement the next day, August 31, about noon. Her testimony that the defendant signed the agreement was corroborated by the testimony of several other witnesses.
Alice Kohlin, the defendant's dental assistant, was called into the meeting between the parties on August 31 and asked by the defendant to tabulate the amounts owed to Rybak at that time. The net fees owed Rybak as of August 30 were $3,564.14.
The evidence showed the defendant's checking account balance as of August 31, 1979, was only $1,888.50, and that Rybak received a check from him dated September 1, 1979, in the amount of $1,000. Although the defendant sought to explain this underpayment of money owed to Rybak by stating that he could have transferred funds from his savings account into his checking account and that he may not have made full payment to Rybak at that time because there were some unexplained missing checks, the evidence shows outstanding amounts were still owed to Rybak in mid-September 1979. This evidence supports Rybak's testimony that the defendant told her he was "in the red." Thus, it is likely he was highly motivated to propose the terms of the agreement alleged by Rybak. Alice Kohlin testified that she saw the defendant tear off the bottom portion of the agreement and sign it.
Lorna Konicki also corroborated the existence of the signed, half-page agreement. She testified Rybak and the defendant were having a "tense" discussion in the office in March 1980 when the defendant asked Konicki to make a copy of the agreement. She testified Rybak took the agreement, which was not full-sized, out of a wallet. She recognized Provenzale's signature on the paper. Konicki testified a picture of Rybak's son fell to the floor at the same time Rybak took out the agreement. It was Rybak's testimony that she kept the agreement, folded, in a wallet along with her passport and a picture of her son.
Judy Littleton, Rybak's dental assistant from 1981 to 1984, testified *894 she was present at a meeting in September or October 1981 between Rybak and Provenzale at which they discussed which doctor's name should be on the insurance forms. At that time, Rybak was "really mad and she was waving around some paper stating that she had some agreement and she can do what she wants regarding  with me in doing her insurance forms." Littleton described the paper Rybak was waving around as a small piece of paper which was folded or ripped. Littleton further testified that in July 1982 Rybak showed her the original agreement which Littleton described as "a shorter piece of paper * * * [not] full length * * * [titled] Agreement * * * signed by Dr. Provenzale" in blue ink. Rybak also testified Provenzale signed the agreement in blue ink. Littleton corroborated Rybak's testimony that she gave this original agreement to Orrin Dressler on that date in July for him to make copies.
Despite the inadmissibility of PX100, the foregoing evidence and the court's finding that Provenzale signed the agreement establishes the defendant's assent to its terms. This evidence distinguishes the instant cause from Lal v. Naffah (1986), 149 Ill. App.3d 245, relied on by the defendant. In Lal, the plaintiff unsuccessfully claimed he had an oral agreement with the defendant fixing his compensation at a percentage of the profits. The contract first signed by the plaintiff in that case did not include a provision that his salary would be tied to the profits of the practice. When that contract expired, the plaintiff once again asked to share in the profits of the practice but was tendered a written employment contract which provided that future compensation would be tied to the defendant's salary and not the profits of the practice. The plaintiff did not sign the agreement, but he continued to work for the defendant for the next five years, accepting without protest 117 semimonthly checks drawn on the defendant corporation's account. The court found there was no enforceable oral contract where the evidence showed there was no mutual assent by the parties to the terms alleged by the plaintiff.
Other evidence that the parties here reached an agreement is that Rybak began accepting payments directly from patients and their insurers rather than funneling all collections through the defendant's books and accounts. Rybak, Littleton, and Konicki each testified the defendant observed Rybak directly taking checks. Rybak also began paying some of her laboratory fees directly, and she assumed responsibility for the defense of a lawsuit for unpaid laboratory invoices. The defendant admitted he had ready access to the office day sheets, deposit records, patient files and patient ledger cards, all of which disclosed Rybak's practice after January 1980 of accepting some payments *895 directly from patients.
The court's finding that Rybak "failed to establish what portion, if any, other than the $1,631.91 * * * she might be entitled to as to those funds that had been retained" contains an inherent contradiction inasmuch as its award of $1,631.91 represents 100% of the fees stipulated by the parties to have been collected from patients treated by Rybak between June 26 and July 6, 1982. The court specifically found the parties' original oral agreement was changed and that her compensation was no longer limited to 50%. No percentages or splits other than 50% as originally agreed or 100% less $2,000-per-month office expenses have ever been in issue, and plaintiff's exhibit No. 19 admitted at trial showed $51,139.72 retained by Provenzale over and above Rybak's net collections for the years 1978-82 less office expenses and amounts received from Provenzale.
We conclude the court's judgment was against the manifest weight of the evidence and must be reversed insofar as it did not award Rybak all the funds retained by the defendant over and above the $2,000-per-month office expenses she agreed to pay, plus interest. Because we have so concluded, we need not address Rybak's further contention the court's judgment bears no relation to the evidence presented at trial.
 6 Rybak next contends the court erred in not granting her claim for $94,459.14 in compensatory damages and $250,000 in punitive damages against the defendant for breach of his fiduciary duties to her. In violation of supreme court rules, however, she cites no relevant authority in support of her contention, and we consider the issue waived. 107 Ill.2d R. 341(e)(7); Button v. Elmhurst National Bank (1988), 169 Ill. App.3d 28, 38; In re Marriage of Anderson (1985), 130 Ill. App.3d 684, 688-89.

DEFENDANT'S CROSS-APPEAL
The court denied all relief to the defendant under his two-count countercomplaint for breach of contract and fraud. He contends the court's judgment was against the manifest weight of the evidence.
The defendant first argues it was reversible error for the court to find that he signed the original of PX100 where the evidence disclosed it was a wholly fraudulent document. The opinion of the defendant's expert witness, Charles Scott, was that PX100 was a photocopy of a constructed or fabricated document. This opinion was based primarily on the fact the typewritten signature line and letters were slightly larger than the typewritten text of the body of the agreement, and the signature line was out of vertical alignment with *896 the body of the text above. The defendant contends Scott's testimony clearly and convincingly outweighed the testimony of the eyewitnesses to the purported original of the agreement, who he argues were biased in the first instance.
 7 Experts' opinions are only as valid as bases or reasons for them (In re T.D.W. (1982), 109 Ill. App.3d 852); the trier of fact is not bound to accept the opinion of an expert (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App.3d 449), and the weight to be accorded expert testimony is for the trier of fact to decide (Rosos Litho Supply Corp. v. Hansen (1984), 123 Ill. App.3d 290). Expert testimony augmented by other circumstances may overcome the testimony of attesting witnesses (In re Estate of Ragen (1981), 96 Ill. App.3d 1035, 1043-45); however, the testimony of an expert is judged by the same rules of weight and credibility which are applied to other witnesses (Presswood v. Morris (1979), 70 Ill. App.3d 513).
 8 It was properly within the province of the court here as the trier of fact to reject Scott's testimony that PX100 was a constructed document in light of the testimony of the eyewitnesses who saw the defendant sign the original and those who later saw the original document. Moreover, Scott admitted in his testimony that he had not examined the typewriter used to create the agreement, did not know its condition of repair, and did not know if it was a manual. He did not know the type of machine the agreement was copied on, by whom, when, or how it was done. He admitted that photocopy machines cause letter size distortion, and he could not tell how many copy generations old the agreement was, or whether other factors could have contributed to distortion. Moreover, in addition to the eyewitnesses to the agreement, Rybak presented her own expert, Dr. Iain McIntyre, who testified to an experiment he performed wherein he drew lines on paper, made a xerographic copy, and measured the expansion difference of the lines at the top, middle, and bottom of the page compared with the original. Lines at the top of the page showed a .15% expansion; middle lines were within the experimental error factor of .05% and the expansion of the lines at the bottom was .31%.
 9 The defendant next argues it was reversible error to admit the testimony of Dr. Iain McIntyre as a rebuttal expert witness in the face of his objection based on Supreme Court Rule 220 (107 Ill.2d R. 220) and to qualify McIntyre as an expert witness. Defendant complains that McIntyre was not disclosed as a witness until the day of his testimony, at which time his counsel was allowed to depose him for one hour.
Assuming arguendo it was error for the court to allow McIntyre *897 to testify despite Rybak's noncompliance with Supreme Court Rule 220, consistent with cases which have required strict compliance with the Rule (Jarmon v. Jinks (1987), 165 Ill. App.3d 855; Phelps v. O'Malley (1987), 159 Ill. App.3d 214; McDonald's Corp. v. Butler Co. (1987), 158 Ill. App.3d 902), and error for the court to qualify McIntyre as an expert witness  a matter within its sound discretion (People v. Jennings (1911), 252 Ill. 534, 550) subject to reversal only if it constitutes a gross abuse of discretion (People v. Free (1983), 94 Ill.2d 378, 410)  the defendant's assertion McIntyre's testimony was "of no value in weighing or contradicting testimony of [expert witness] Charles Scott" defeats his claim that such error was reversible. It is axiomatic that a reviewing court will not find error to be reversible unless it is demonstrated that the error was substantially prejudicial and affected the outcome of the trial. See, e.g., Ford v. City of Chicago (1985), 132 Ill. App.3d 408, 414.
The defendant next contends the trial court's failure to acknowledge what he asserts are Dr. Rybak's substantial credibility problems "merits reversal of the court's ruling on exhibit No. 100 and its denial of Dr. Provenzale's counterclaims as well as a denial of Dr. Rybak's appeal."
 10 It is the trial court's function to determine the credibility of witnesses (Orchard Shopping Center, Inc. v. Campo (1985), 138 Ill. App.3d 656) and to resolve inconsistencies in testimony (Amoco Realty Co. v. Montalbano (1985), 133 Ill. App.3d 327), and this court cannot substitute its opinion for the finding of the trier of fact unless its holding is against the manifest weight of the evidence (Scheduling Corp. of America v. Massello (1987), 151 Ill. App.3d 565).
 11 For the reasons discussed above, we have found PX100 was inadmissible and that the court's judgment awarding Rybak $6,631.95 was against the manifest weight of the evidence. We do not find the court's judgment denying the defendant's counterclaim was against the manifest weight of the evidence, however, as discussed below.
The defendant contends the court's judgment denying him relief on his countercomplaint for breach of contract, fraud, and conversion was against the manifest weight of the evidence. As discussed previously, his motion to add a count at this time for conversion is denied, and his argument relating to conversion will not be addressed.
As to breach of contract, the defendant's complaint alleged Rybak at all times was an associate employed by his dental practice pursuant to the terms of their oral agreement whereby all funds collected from patients treated by her were turned over to him in return for which *898 he provided her office space and dental equipment and paid her 50% of all funds collected for dental work done by Rybak less 50% of all dental lab bills incurred by Rybak. Notwithstanding that relationship, it was alleged that Rybak actively concealed her failure to turn over and give to him all fees collected by her and that in the exercise of all due diligence he was unable to discover Rybak's breach until Rybak filed her action against him. In his claim for fraud, he alleged that Rybak represented to him that she was disclosing and turning over to him all fees collected for her work in her capacity as a dentist, but that such representations were false, were known by Rybak to be false and that Rybak performed her services as a dentist "with deceit and surreption [sic  presumably subreption]" and did not disclose or turn over all fees collected by her. He claimed further that his belief in and reliance on her representations induced him to maintain the employment relation with her and to pay her 50% of the limited fees which she chose to disclose, that she actively concealed her failure to turn over all fees to him and that in the exercise of all due diligence he was unable to discover her breach until she filed her action against him.
The parties stipulated that prior to July 6, 1982, Rybak collected directly from patients at least $32,128.10 in fees which were not recorded in the office day sheets, nor deposited in the office bank account, and which were shown on Rybak's Federal income tax returns for the years 1980, 1981 and 1982.
The defendant's contention here is that the evidence shows Rybak was moonlighting without authority and that these activities constituted a breach of their contract and fraud. Consequently, he asserts, the court's judgment denying his countercomplaint was against the manifest weight of the evidence.
Contrary to the defendant's argument, the fact the court found that the original oral agreement between the parties "was changed" and it no longer limited Rybak to 50% of the funds earned is sufficient to defeat the defendant's cause of action for breach of contract.
Defendant argues "the court did not specifically find that Dr. Rybak's position as an associate was extinguished at any time or that her overall duties as an associate had been terminated." The court did specifically find, however, that the conduct of the parties established "the 50 percent limitation was no longer the limit on [Dr.] Rybak's basis for compensation." It further found:
"[T]he taking of funds by [Dr.] Rybak was openly and honestly done and [Dr.] Provenzale was aware that she was not only taking these funds, he was not only aware that she was paying her *899 lab bills and insurance billings, as manifested by the evidence, including some of the split payments of lab bills, et cetera, I think [Dr.] Provenzale was aware of how the money came in and went out."
It was the defendant's burden as plaintiff in the countercomplaint to prove every material term of the contract. (Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App.3d 787.) As the court found and as Rybak argues, the evidence showed he was aware of her practice of taking checks directly from patients and the fact she paid some of the lab bills herself. The defendant's assertion that Lorna Konicki, who observed Rybak take checks and testified that the defendant saw Rybak do this as well, only worked at the practice between 1979 and 1980, misstates the record. Konicki testified she left the office in April 1980 and, thus, the defendant's conclusion Rybak must also have been taking checks directly from patients prior to 1980 is without basis. The defendant's argument also ignores the testimony of Judy Littleton, who testified that the defendant was present on occasions when Rybak would take checks at the front desk and put them in her pocket, and that after Rybak and the defendant had a discussion in which Rybak waved a paper which was not a full sheet in front of the defendant (presumably the parties' original written agreement), Littleton was instructed to do only Rybak's insurance and put her name on the forms. We conclude the court's judgment denying this aspect of defendant's counterclaim was not against the manifest weight of the evidence.
Our conclusion is the same with regard to the defendant's claim of fraud. The defendant initially presented a two-paragraph argument on this issue which was greatly expanded upon in his reply brief and in which he contends for the first time that he presented a prima facie case of fraud which Rybak bore the burden of overcoming. Defendant's argument made for the first time in his reply is a violation of Supreme Court Rule 341 (107 Ill.2d R. 341(e)(7)) and is waived.
 12, 13 Addressing his initial argument, however, we find no error in the court's judgment. Fraud encompasses anything calculated to deceive, as in acts, omissions and concealment including breach of legal or equitable duty, trust or confidence, resulting in damage to another, and encompasses silence if accompanied by deceptive conduct or suppression of material facts constituting an act of concealment. (Grane v. Grane (1985), 130 Ill. App.3d 332, 344.) A prima facie claim of fraud is established by allegations that the wrongdoer knowingly misrepresented material fact for the purpose of inducing the claimant to act, that the claimant reasonably believed the misrepresentation *900 to be true and that he detrimentally relied upon it. (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App.3d 712.) The evidence at bar fails to show any deceptive conduct on Rybak's part. Rather, as the court specifically found, her conduct was "open and obvious," and several witnesses testified they observed Rybak take checks in Provenzale's presence. This, and evidence that all payments received were recorded on ledger cards kept at the front desk available at all times for Provenzale's inspection, supports the court's judgment to deny the defendant any relief on this count of his countercomplaint.
The defendant's final contentions are that the court's awards of $5,000 to cover legal expenses paid by Rybak in connection with a dispute with a lab or labs concerning work done and for $1,631.95 as unpaid compensation for the period June 26 to July 6, 1982, are against the manifest weight of the evidence.
 14, 15 We agree with the defendant that the court's $5,000 award for legal expenses incurred by Rybak is against the manifest weight of the evidence. Rybak made no claim for reimbursement of these expenses, and the defendant's testimony at trial cannot reasonably be construed as an admission that he owed her reimbursement for same. We agree with the defendant that the thrust of his response to counsel's cross-examination was that he, in effect, actually had assumed liability for these expenses in that Rybak testified she agreed to barter her dentistry services to the attorney in exchange for the legal services provided by him. Although Rybak does not admit to this barter of services, she nonetheless testified at trial that there was an understanding the legal fees related to her practice and that she had to pay them.
As a general rule, the relief awarded a party should conform to that sought by the pleadings (Luciani v. Bestor (1982), 106 Ill. App.3d 878), although a court has the power to grant any relief within the issues formed by the pleadings and justified by the evidence, regardless of the specific relief demanded (Hare v. Canvassing Board (1986), 146 Ill. App.3d 88). The court's $5,000 award falls neither within the issues framed by the pleadings nor the proof adduced at trial and must be reversed.
 16 As to the $1,631.95 of unpaid compensation, the defendant argues he properly retained this amount to mitigate the damages he sustained by virtue of Rybak's moonlighting activities, which the parties stipulated amounted to $32,128.10 in fees. Since this court finds no error in the trial court's denial of the defendant's counterclaim against Rybak for her moonlighting because such activities were *901 openly and obviously conducted and, therefore, did not constitute evidence of a breach of her contract with defendant, we find that this amount was properly awarded Rybak.
 17 Rybak's contention that she should also have been awarded $1,796.75 representing the amount of fees collected after July 6, 1982, from patients treated by her before that date is raised for the first time in her reply brief in violation of Supreme Court Rule 341 (107 Ill.2d R. 341(e)(7)) and is waived.
The judgment of the circuit court of Du Page County denying the defendant's countercomplaint is affirmed.
The court's judgment awarding Rybak $5,000 in legal expenses is reversed.
The court's judgment awarding Rybak $1,631.95 is affirmed, and the cause is remanded for entry of an increased judgment in favor of Rybak under the terms of her oral agreement with the defendant consistent with this opinion.
Affirmed in part; reversed in part and remanded.
INGLIS and DUNN, JJ., concur.