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United States v. Williams, 93-1661 (1993)

Court: Court of Appeals for the First Circuit Number: 93-1661 Visitors: 9
Filed: Dec. 03, 1993
Latest Update: Mar. 02, 2020
Summary:  Here, the ___ ____ ______ Polis testimony was given under oath, subject to the penalties of perjury, in a formal grand jury proceeding that resulted in Williams's indictment on the DARSO counts, as well as the SERVESS counts which were dismissed pursuant to the plea agreement.
USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 93-1661

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

STEPHEN E. WILLIAMS,

Defendant, Appellant.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]
___________________

____________________

Before

Torruella, Circuit Judge,
_____________

Bownes, Senior Circuit Judge,
____________________

and Cyr, Circuit Judge.
_____________

____________________


William J. Genego for appellant.
_________________
Roberta T. Brown, Assistant United States Attorney, with whom A.
_________________ __
John Pappalardo, United States Attorney, and Michael K. Loucks,
________________ ___________________
Assistant United States Attorney, were on brief for appellee.

____________________

December 3, 1993

____________________



















CYR, Circuit Judge. Pursuant to a plea agreement,
CYR, Circuit Judge.
_____________

appellant Stephen Williams pled guilty to fourteen counts of mail

fraud, whereupon other charges were dismissed and Williams was

sentenced to seven months' imprisonment. On appeal, Williams

challenges, among other things, the district court's denial of

his request for an evidentiary hearing and its determination that

certain criminal acts alleged in the dismissed counts constituted

"relevant conduct" under the counts of conviction. Finding no

error, we affirm.



I
I

FACTS
FACTS
_____


In 1980, Williams and codefendant Bruce Kotek founded

S.E.R.V.E.S.S., Inc. (SERVESS), a Massachusetts not-for-profit
______________

corporation which operated homes for the handicapped. SERVESS

entered into at-cost contracts with the Commonwealth of Massa-
_______

chusetts (Commonwealth) for the placement of mentally handicapped

persons in SERVESS group homes. These contracts entitled SERVESS

to reimbursement for its expenses but prohibited it from realiz-

ing a profit. In 1984, while serving on the SERVESS board of

directors, Williams and Kotek established Community Services,

Inc. (CSI), a for-profit corporation which would contract with
__________

companies like SERVESS to operate their group homes in return for

a management fee. In July 1984, Williams and Kotek, in their

capacity as SERVESS directors: (1) voted to enter into a manage-

ment contract with CSI; (2) promoted a SERVESS employee, William
















Polis, to serve as SERVESS's new executive director; and (3)

resigned from the SERVESS Board effective August 31, 1984. On

September 1, 1984, the day after the Williams and Kotek resigna-

tions became effective, the SERVESS-CSI management contract was

executed by Polis on behalf of SERVESS. In 1985, during Polis's

tenure, at the instance of Williams and Kotek SERVESS entered

into several long-term leases of property owned by real estate

trusts controlled by the third codefendant, Robert Alexander.

Although only Alexander received income from these properties,

Kotek, Williams and Alexander were all residual beneficiaries

under the real estate trusts.

In January 1986, Williams and Kotek founded another

not-for-profit corporation called D.A.R.S.O., Inc. (DARSO), which
______________

operated day-care centers for mentally handicapped persons. Like

SERVESS, DARSO contracted directly with the Commonwealth for

reimbursement of its at-cost expenses, and leased several parcels

of real property from the same real estate trusts. DARSO also

purchased furniture from a company in which Williams held an

interest. Williams served as a director of DARSO from its

inception.

Massachusetts law requires that any not-for-profit

corporation submitting expense reimbursement requests to the

Commonwealth disclose whether the expense was incurred with a

"related person," defined as "[a] person or organization which is

associated or affiliated with or has control of or is controlled
___ _______ __

by the [not-for-profit corporation] or is related to the [not-


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for-profit corporation] or any director, stockholder, trustee,

partner or administrator of the [not-for-profit corporation] by

common ownership or control or in a manner specified in [I.R.C.

267(b), (c).]" See 114.5 Mass. Reg. 3.02 (emphasis added).
___

In November 1990, Williams, Kotek, Alexander, and the

various corporate entities were indicted for RICO violations, 18

U.S.C. 1962(c), RICO conspiracy, 18 U.S.C. 1962(d), and

multiple counts of mail fraud, 18 U.S.C. 1341, in connection

with the alleged SERVESS and DARSO schemes to defraud the Common-

wealth. The indictment was based on Williams's failure to

disclose: (1) that he and Kotek, through executive director

Polis, "controlled" SERVESS at the time CSI and SERVESS entered
__________

into their management contract; and (2) that both corporations

leased property from real estate trusts whose beneficiaries were

"related parties." The government charged that the SERVESS and

DARSO reimbursement requests exceeded their costs, and that

Williams and Kotek defrauded the Commonwealth by using these

"hidden profits" to improve, and acquire equity in, the real

estate leased to SERVESS and DARSO by the real estate trusts.

At sentencing, the government characterized the dis-

missed SERVESS counts as "relevant conduct" under U.S.S.G.

1B1.3 and introduced a transcript of the grand jury testimony

of William Polis, to the effect that he was acting under Wil-

liams's "control" when he signed the SERVESS-CSI management






4














contract in September 1984.1 Williams argued that the SERVESS

scheme was too remote in time and context to constitute "relevant

conduct" under the DARSO counts, and requested an evidentiary

hearing for the purpose of cross-examining Polis on his grand

jury testimony concerning the issue of "control." The district

court denied the request for an evidentiary hearing and found the

loss occasioned by the SERVESS counts to be "relevant conduct."

Williams appeals the resulting seven-month prison sentence.2










____________________

1The gross loss occasioned the Commonwealth by the mail
fraud directly related to the SERVESS counts was estimated at
between $500,000 and $1 million, while the DARSO counts involved
estimated loss of $50,000 to $100,000. See U.S.S.G. 2F1.1.
___
The district court imposed an 8-level enhancement, based on the
$500,000 to $1 million loss occasioned by the SERVESS scheme, as
"relevant conduct," see id. 1B1.3, in connection with Wil-
___ ___
liams's sentencing on the DARSO scheme counts to which he pled
guilty.

2The pre-November 1989 Sentencing Guideline calculation was
as follows:

Base offense level ( 2F1.1) 6
+ Loss between $500,000 and $1 million +8
+ More than minimal planning +2
+ Abuse of trust position +2
- Acceptance of responsibility -2

Adjusted offense level 16
Adjusted offense level 16

GSR (Criminal History Category I) 21-27 mos.
Downward departure for Substantial
Assistance -14 mos.

Sentence 7 mos.
Sentence 7 mos.

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II
II

DISCUSSION
DISCUSSION
__________


The crux of Williams's grievance is that his plea

agreement with the government, which led to the dismissal of the

SERVESS counts, resulted in no lower sentence since the Common-

wealth loss relating to the SERVESS counts was considered "rele-

vant conduct" for purposes of sentencing on the DARSO counts.

Our cases, see, e.g., United States v. Wright, 873 F.2d 437, 440-
___ ____ _____________ ______

42 (1st Cir. 1989), long since have recognized the appropriate-

ness of just such "relevant conduct" adjustments as these.

Moreover, unlike "relevant conduct" adjustments that may appear

to erode the intended benefit of a defendant's plea bargain, see
___

United States v. Fox, 889 F.2d 357, 362-63 (1st Cir. 1989); see
_____________ ___ ___

also Kinder v. United States, 112 S. Ct. 2290, 2292-93 (1992)
____ ______ ______________

(White, J., dissenting from a denial of certiorari) (collecting

cases and noting circuit split), in this case Williams plainly

was on notice that the government would request the court to

treat the SERVESS-related loss as "relevant conduct" under the

DARSO counts.3 Finally, while the government reserved its right

____________________

3The plea agreement provides:

Williams agrees that the United States may
argue that the loss suffered . . . from all
of the fifteen charged schemes to defraud set
forth in predicate acts one through fifteen
of Count One of the indictment [i.e., the
____
SERVESS-related conduct] may be included by
the court in its calculation of the loss
suffered by the Commonwealth of Massachu-
setts. The Government agrees that Mr. Wil-
liams may argue that the Court should not do

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to recommend a "relevant conduct" adjustment, the plea agreement

afforded Williams significant benefit. The government agreed,

inter alia, to move to dismiss all RICO and RICO-conspiracy
_____ ____

counts, and to recommend a sentence at the low-end of the appli-

cable guideline sentencing range. The government also left the

door open to a downward departure for substantial assistance.

Ultimately, of course, the district court granted a downward

departure for substantial assistance, see supra note 2, on the
___ _____

government's recommendation. See U.S.S.G. 5K1.1.
___

Thus, our review discloses that both the letter and

spirit of the plea agreement was observed, resulting in substan-

tial benefit to Williams. The fact that the district court, in

scrupulous observance of the Sentencing Guidelines and our

caselaw, did not grant appellant all he had hoped does not

warrant appellate relief.


1. "Relevant Conduct"
1. "Relevant Conduct"
________________

Absent a mistake of law, we review "relevant conduct"

findings for clear error. United States v. Wood, 924 F.2d 399,
_____________ ____

403 (1st Cir. 1991). Only after the government has met its

burden of establishing, by a preponderance of the evidence, "a

sufficient nexus between the [extraneous] conduct and the offense
__________ _____

of conviction," may the sentencing court, in its sound discre-

tion, make a "relevant conduct" adjustment. United States v.
______________




____________________

so.

7














Sklar, 920 F.2d 107, 110 (1st Cir. 1990) (emphasis added). The
_____

district court supportably found the required nexus in this case.

The principal argument advanced by Williams on appeal

is that the conduct allegedly involved in the SERVESS scheme was

too dissimilar to be considered "relevant" to the conduct of

conviction involved in the DARSO counts.4 This supposed dissimi-

larity springs from the fact that Williams's alleged criminal

liability under the dismissed SERVESS counts was predicated on a

determination that Williams controlled Polis, thereby causing

SERVESS to violate its obligation to disclose "related parties,"

whereas criminal liability for the DARSO scheme rested directly

on the conduct of Williams and his codefendants.

The SERVESS and DARSO schemes shared a great deal in

common: (1) the same victim, i.e., the Commonwealth; (2) the
____

same method of operation, i.e., SERVESS's improper requests for
____

Commonwealth reimbursement of the management fees paid CSI, or

the rental fees paid for the real estate trusts; (3) the same

three principals, i.e., Williams and Kotek as influential "insid-
____

ers," Alexander as the "outsider" recipient; and (4) the same

underlying substantive offense, i.e., the fraudulent failure to
____

identify the defendant's "related party" status in accordance

____________________

4Appellant's other arguments warrant little discussion.
First, he questions the temporal proximity between the DARSO and
SERVESS schemes. But this argument ignores the nature of the
underlying crime. Assuming arguendo that the SERVESS contract
________
with CSI was executed before DARSO came into existence, the mail
fraud, based on the continuing non-disclosure of Williams's
______________
"related party" status, continued well beyond that date. Appel-
lant's second contention that any control exercised over Polis
was "intermittent" is likewise inapposite.

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with 114.5 Mass. Reg. 3.02. Thus, the district court reasonably

could conclude that the DARSO and SERVESS schemes, while not one

and the same, were nonetheless sufficiently comparable in charac-

ter, cast and plot, to warrant similar billing under U.S.S.G.

1B1.3.


2. Sufficiency of the Evidence
2. Sufficiency of the Evidence
___________________________

The second argument Williams makes is that the evidence

was insufficient to link him to the SERVESS scheme. The eight-

level adjustment under U.S.S.G. 1B1.3 was based exclusively on

the government's contention that Williams controlled Polis's

approval of the CSI management contract, and the long-term leases

with the real estate trusts, on behalf of SERVESS. The only

"control" evidence introduced at sentencing was Polis's grand

jury testimony, which Williams correctly characterizes as hear-

say. Williams insists that the grand jury testimony was rendered

even less reliable because the prosecutor posed a series of

hostile or leading questions to Polis on the issue of "control."

Moreover, Williams argues, Polis testified that following their

resignations from the SERVESS Board in August 1984 neither

Williams nor Kotek had the power to remove Polis as the executive

director of SERVESS, and that Polis named a new board of direc-

tors, increased his own salary, and leased other properties in

which Williams had no ownership interest.

Given the deferential "clear error" standard of review,

United States v. Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990),
_____________ ______________

cert. denied, 111 S. Ct. 2039 (1991), and the modest burden and
_____ ______

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quality of proof incumbent on the government at sentencing, id.
___

at 37 (citing United States v. Mocciola, 891 F.2d 13, 17 (1st
_____________ ________

Cir. 1989)), Williams's claim founders on the plain language in

U.S.S.G. 6A1.3(a):

In resolving any reasonable dispute concern-
ing a factor important to the sentencing
determination, the court may consider rele-
vant information without regard to its admis-
sibility under the rules of evidence applic-
able at trial, provided that the information
has sufficient indicia of reliability to
support its probable accuracy.

Under U.S.S.G. 6A1.3(a), we repeatedly have upheld

reliance on prior hearsay testimony never subjected to cross-

examination, so long as there were other adequate indicia of

reliability. See, e.g., Wright, 873 F.2d at 441. Here, the
___ ____ ______

Polis testimony was given under oath, subject to the penalties of

perjury, in a formal grand jury proceeding that resulted in

Williams's indictment on the DARSO counts, as well as the SERVESS

counts which were dismissed pursuant to the plea agreement. The

district court was provided with the complete transcript of the

Polis grand jury testimony, wherein Polis admitted, inter alia,
_____ ____

that Williams was still "calling the shots" during the first two

years Polis served as President of SERVESS.5 The Polis testimo-

____________________

5Polis testified as follows:
Q: But, Mr. Polis, [why did you sign] a
document [the SERVESS-CSI management con-
tract] you had never seen before, a document
in which you played no role in the negotia-
tion of on your first day on the job, which
obligated your entity to five years relation-
ship with [CSI]. What is the reason you
signed it?
A: I didn't really feel I had the choice.

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ny was the only direct evidence before the district court on

Williams's influence upon Polis. So far as the record discloses,

the Polis testimony was also the only direct evidence before the

grand jury on the issue of Williams's "control," and would appear

to have been critical to the "probable cause" determination on

which Williams's indictment on the SERVESS counts was based. In

____________________

Q: And what was what was it that was
taking away your ability to have a choice?
A: Stephen Williams and Bruce Kotek.
Q: How?
A: The fact that they had the contracts and
the control.
* * *
Q: Mr. Polis, in the sort of natural scheme
of human relationships, two people who are
running an entity don't voluntarily relin-
quish all control over it to somebody else on
the faint hope that person will turn control
right back to them in a consulting agreement
or leave control with them by letting them do
what they want to do in terms of who they
execute leases with and the like.
Is it your testimony that there was no
conversation . . . in which you indicated
that you would continue to do their bidding
as director of SERVESS?
A: There was a discussion about they had
gone to the state, they had gone to an attor-
ney, they were coming up with an agreement
and that they wanted it signed and that they
would become the management entity and I
would run the programs.
Q: Well didn't somebody ever say at any
point in time you're going to continue to do
as we tell you to do, Bill. We're making you
executive-director but we still call the
_____ ____ ___
shots here.
_____
A: That's obviously how they felt.
Q: And that for a while, that's obviously
what happened Mr. Polis?
A: Yes.
Q: True?
A: True.

(emphasis added).

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these circumstances, we think there can be little question that

the Polis grand jury testimony was sufficiently reliable to

permit reliance by the sentencing court. Compare, e.g., Zuleta-
_______ ____ _______

Alvarez, 922 F.2d at 37 (upholding consideration of grand jury
_______

testimony where sentencing judge presided over trial and formed

independent assessment of reliability), with United States v.
____ ______________

Harris, 982 F.2d 317 (8th Cir. 1992) (upholding refusal to rely
______

on grand jury testimony where sentencing judge doubted its

veracity).

The sentencing judge was highly conversant both with

the facts of the case and Williams's association and involvement

with his codefendants in the SERVESS scheme. By the time Wil-

liams was sentenced, the judge not only had the benefit of the

presentence investigation report and Williams's written response,

but the understanding gained from more than two years of pretrial

proceedings. Indeed, a few weeks earlier the same judge had

sentenced Alexander and Kotek on the SERVESS and the DARSO
___

counts. Cf. Zuleta-Alvarez, 922 F.2d at 37 (holding that en-
___ ______________

hanced deference was due findings of fact where sentencing judge

had presided at trial).

The district court supportably found that Polis's

actions on behalf of SERVESS in entering into the CSI management

contract were controlled by Williams.


3. Evidentiary Hearing
3. Evidentiary Hearing
___________________

Finally, Williams argues that the district court's

refusal to allow an evidentiary hearing, at which Polis could

12














have been cross-examined, constituted an abuse of discretion. We

have yet to hold that it is an abuse of discretion to deny cross-

examination in the sentencing context. See United States v.
___ ______________

Regan, 989 F.2d 44, 47 (1st Cir. 1993).
_____

Williams has not demonstrated an abuse of discretion

here. See Garcia, 954 F.2d at 19. Even though, as Williams
___ ______

alleges, the Polis grand jury testimony on "control" was central

to the "relevant conduct" adjustment relating to the SERVESS

counts, we cannot say that the district court, which had the

benefit of the grand jury transcript and its own long-term famil-

iarity with these proceedings, was presented with a compelling

basis for conducting an evidentiary hearing to revisit the same

ground. Williams was accorded an opportunity to contest, in

writing, the government's evidence of "control." Yet he neither

proffered rebuttal evidence nor alleged or identified any false

grand jury testimony by Polis, but simply disputed the import of

Polis's testimony by denying "control" without suggesting what

additional or different information might be gleaned from cross-

examining Polis. Williams's sheer earnestness in pursuing the

request was not enough. In these circumstances, and absent some

more concrete proffer, the district court did not abuse its

discretion in denying an evidentiary hearing.

Affirmed.
Affirmed.
________








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