USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-2044
UNITED STATES,
Appellee,
v.
ROBERT O'CONNOR,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin and Bownes, Senior Circuit Judges.
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Deirdre Lee Thurber for appellant.
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William P. Stimson, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for appellee.
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June 22, 1994
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BOWNES, Senior Circuit Judge. Defendant Robert
BOWNES, Senior Circuit Judge.
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O'Connor and three others were indicted on eight counts
charging violations of 18 U.S.C. 1343 (fraud by wire,
radio, or television) and 18 U.S.C. 2 (Principals). The
indictment alleged that the defendants and others had devised
a scheme to defraud and obtain money by false pretenses,
representations, and promises, and had made or caused to be
made wire transmissions in interstate commerce in order to
carry out the fraud.
The three other defendants pled guilty prior to
trial. Defendant opted for trial and was found guilty on all
eight counts by a jury. This appeal followed.1
THE SCHEME
THE SCHEME
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In order to understand the issues on appeal a
description of the scheme to defraud is necessary. The
progenitors of the fraud were two real estate brokers, Barry
and Diana Tevrow. Its purpose was to secure financing so
individuals could purchase residential real estate without
the necessity of making down payments. To effectuate this,
the Tevrows engineered successive purchase and sale
transactions of residential properties so as to inflate the
ultimate purchase prices. Lenders would then be induced to
advance loans for substantially more than the properties were
actually worth. In order for the scheme to work, the Tevrows
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1. Appellate counsel for defendant was not trial counsel.
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had to persuade the buyer(s) to give false information on the
loan application(s) anent their income and assets. This
required that the Tevrows falsify documents, such as income
tax withholding statements and bank statements, to support
the false loan application.
Defendant became part of the scheme because he was
an experienced real estate appraiser. His role was to
appraise the subject property at an amount that would
convince the lender that the property had sufficient value as
collateral to secure the loan. Defendant met with the
Tevrows and they explained their scheme to him, which was to
buy the property in the first instance through a straw and
then immediately resell it at an inflated price. The
inflated price was determined by adding to the initial price
the following amounts: (1) $35,000; (2) any amount of cash
up to $15,000 that the final purchaser wanted to receive at
the closing; plus (3) 20% of (1) and (2).2
Defendant was told that he had to prepare
appraisals that would "come in" at the price determined under
the formula. It was agreed that defendant would be paid
$1,000 for every successful closing in addition to his usual
fee of $250-300 for the appraisal. Defendant was paid in
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2. We note the obvious, that the success of the fraud
depended upon the Tevrows' obtaining buyers who were willing
to submit false loan applications.
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cash or by money order; at times defendant's "cut" was
deposited directly into his bank account.
Defendant's experience as an appraiser did not
extend to the North Shore area of Massachusetts. He overcame
this deficiency by using Diana Tevrow, who was not a trained
appraiser, to help him. She obtained a listing sheet
prepared by the Multiple Listing Service for each property
that was to be used. The listing sheet described the
property and gave the seller's offering price. Tevrow also
obtained a "field card" describing the property from the city
hall in the locality in which the property was located. She
took photos of the outside of the house and made a sketch of
its interior. Tevrow had the further assignment of selecting
"comparable sales" properties. This entailed choosing
recently sold properties whose sales prices could be used as
benchmarks to help establish the value of the property to be
used in the fraud scheme. Tevrow was told by defendant to
select "comparable sales properties" solely on the basis of
price and not to worry about whether the properties were in
fact comparable in location, appearance, structure, and size
to the subject property. According to Tevrow, defendant
changed the description of the subject property and the
"comparable sales" properties so that it appeared that they
were similar.
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No issue has been raised as to the sufficiency of
the evidence. There are only two issues on appeal: the
giving of a willful blindness instruction and sentencing.
WILLFUL BLINDNESS
WILLFUL BLINDNESS
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Defendant makes three claims on willful blindness.
His first is that the "silence of the record regarding the
Court's decision to charge willful blindness requires vacatur
and remand." Defendant is claiming that there is no record
showing that the district court complied with Fed. R. Crim.
P. 303 by notifying defendant of its proposed action upon the
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3. Rule 30. Instructions
Rule 30. Instructions
At the close of the evidence or at such
earlier time during the trial as the
court reasonably directs, any party may
file written requests that the court
instruct the jury on the law as set forth
in the requests. At the same time copies
of such requests shall be furnished to
all parties. The court shall inform
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counsel of its proposed action upon the
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requests prior to their arguments to the
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jury. The court may instruct the jury
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before or after the arguments are
completed or at both times. No party may
assign as error any portion of the charge
or omission therefrom unless that party
objects thereto before the jury retires
to consider its verdict, stating
distinctly the matter to which that party
objects and the grounds of the objection.
Opportunity shall be given to make the
objection out of the hearing of the jury,
and on request of any party, out of the
presence of the jury.
(Emphasis ours.)
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requests for instructions, specifically the one on willful
blindness, prior to the parties' arguments to the jury.
This claim is decisively rejected by the record.
There was a jury charge conference on March 9, two days prior
to the submission of the case to the jury on March 11. At
the conference a willful blindness instruction was discussed
at length by the court and the parties. The discussion ended
by the court informing the prosecutor that defendant objected
to the willful blindness instruction as proposed by the
court. Then followed this colloquy between the court and the
prosecutor:
MR. POVICH: Well, at this point in
time I am not going -- I'm not going to
fight his objection, but I reserve my
right depending on how things go.
THE COURT: All right. . . . I'll
tell you what I'll do with it. If he
puts on a case that causes you to want to
request it, you'll let me know before I
charge the jury and also give me the
substitute language, either reinstating
what I now have or whatever different
language you want.
On the next day, March 10, the court gave counsel a
copy of its proposed jury charge. The proposed charge
contained the same willful blindness instruction given to the
jury the next day. The docket notes for March 11 show:
"Colloquy re: draft of instructions on willful blindness. D
objects to giving instruction but not to the specific form.
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Jury brought in. Govt & D present closing. Court charges
the jury."
The record establishes: that a willful blindness
instruction was discussed at the jury charge conference on
March 9; that a draft of the court's jury charge containing a
willful blindness instruction was given to defendant's
counsel on March 10; and that on March 11, defense counsel
objected, prior to final argument, to giving the willful
blindness instruction but not to its specific form. There
was no violation by the district court of the requirement of
Fed. R. Crim. P. 30 that, "[t]he court shall inform counsel
of its proposed action upon the requests prior to their
arguments to the jury."
Before getting to defendant's substantive
objections to the willful blindness instruction, we first
consider the government's claim that a proper objection was
not made, as required by Fed. R. Crim. P. 30, to the willful
blindness instruction after the charge was given and before
the jury retired for deliberations. At the close of his
instructions the court asked if there were any objections to
the charge. The following colloquy then took place:
MR. McMAHON: Your Honor, the
defendant is satisfied with the exception
of the willful blindness charge and his
objections have been duly recorded in two
of my memorandums.
THE COURT: Well, you're required to
make them again now after it's given.
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MR. McMAHON: I'm making them now.
THE COURT: All right. That
objection is overruled.
Rule 30 explicitly states in pertinent part:
No party may assign as error any portion
of the charge or omission therefrom
unless that party objects thereto before
the jury retires to consider its verdict,
stating distinctly the matter to which
that party objects and the grounds of the
objection.
Despite being warned by the court, defense counsel did not
state the grounds of the objection. The case law in this
circuit requires strict compliance with the words of the
Rule:
As we have repeatedly held, Fed.R.Crim.P.
30 means what it says. A party may not
claim error in the judge's charge to the
jury unless that party "objects" after
the judge gives the charge but before the
"jury retires," and, when objecting the
party must "stat[e] . . . distinctly the
matter to which that party objects and
the grounds of that objection."
United States v. Wilkinson, 926 F.2d 22, 26 (1st Cir. 1991).
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That the grounds for the objection were filed in writing with
the court prior to the time the charge was given, matters not
a whit. See United States v. Coady, 809 F.2d 119, 123 (1st
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Cir. 1987). In a recent civil case, Poulin v. Greer, 18 F.3d
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979, 982 (1st Cir. 1994), we discussed at length the
consequences of failing to follow the strictures of Fed. R.
Civ. P. 51, which is identical to Fed. R. Crim. P. 30. We
pointed out that failure to object after the charge
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"constitutes waiver of the objection." Id. We also noted
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that the rule was binding on both the court and attorney and
that a statement by the court "'after the charge that
objections made prior to it will be saved does not absolve
the attorney from following the strictures of the rule.'"
Id.(quotingMcGrath v.Spirito,733 F.2d967, 969(1stCir. 1984)).
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The failure of defendant to follow the command of
Rule 30 means that our review is limited to plain error.
Poulin, 18 F.3d at 982; United States v. Latorre, 922 F.2d 1,
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10 (1st Cir. 1990). Defendant took the position at trial
that he was "never told what was going on with this scheme."
He further testified that he believed the information that
was provided him about the properties was true. Such a claim
cries out for a willful blindness instruction, when there is
evidence to the contrary, as there was in abundance here.
See infra at 3-4.
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The trial court may instruct the jury
concerning willful blindness when a
defendant claims a lack of knowledge, the
facts support an inference of defendant's
conscious course of deliberate ignorance,
and the instruction, taken as a whole,
cannot be misunderstood by a juror as
mandating the inference of knowledge.
United States v. Brandon, 17 F.3d 409, 452 (1st Cir. 1994);
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United States v. Jones, 10 F.3d 901, 906 (1st Cir. 1993).
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Viewed in the perspective of plain error, we find that it was
not plain error to give a willful blindness instruction and
that the form of the instruction was not plainly erroneous.
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SENTENCING
SENTENCING
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After a lengthy sentencing hearing the court
allowed a two-level decrease under U.S.S.G 3B1.2(b),
finding that defendant was a minor participant in the
offense. This was not recommended in the presentence report.
Defendant's adjusted offense level was 19. Because he was in
Criminal History Category I, the applicable imprisonment
range was 30 to 37 months with a supervised release range of
24 to 36 months. The fine range was $6,000 to $60,000. The
maximum restitution figure was $1,266,883.75. The special
assessment was $50 for each of the eight counts for a total
sum of $400.00.
The sentence given was: 30 months imprisonment; 24
months of supervised release; no fine was assessed;
restitution in the amount of $40,000 was ordered, and a
special assessment of $400 was levied. Defendant claims that
the sentence was incorrectly calculated for two reasons: the
court failed to consider U.S.S.G. 1B1.3(a)(1); and it
failed to allow a downward departure under U.S.S.G. 2F1.1.
We find that defendant's sentencing error claims are barred
for procedural reasons.
We start with the court's alleged failure to
consider U.S.S.G. 1B1.3(a)(1). This guideline provides:
(B) in the case of a jointly
undertaken criminal activity (a
criminal plan, scheme,
endeavor, or enterprise
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undertaken by the defendant in
concert with others, whether or
not charged as a conspiracy),
all reasonably foreseeable acts
and omissions of others in
furtherance of the jointly
undertaken criminal activity,
that occurred during the commission of
the offense of conviction, in preparation
for that offense, or in the course of
attempting to avoid detection or
responsibility for that offense;
Defendant argues that in sentencing, as opposed to
determining conviction, a co-conspirator defendant is
responsible only for those acts which were reasonably
foreseeable by him. This is undoubtedly correct. See United
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States v. Balogun, 989 F.2d 20, 22 (1st Cir. 1993). And it
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is clear that the district court did not consider U.S.S.G.
1B1.3(1)(B) in sentencing defendant. But it is also clear
that the court was never asked to consider this guideline at
the sentencing hearing or prior to it.
The initial presentence report determined the loss
due to charged conduct to be $1,061,264.00. The revised
presentence report, made in response to objections by the
government, included losses due to uncharged conduct which
increased the loss to $1,266,883.75. There was no objection
by defendant to the original presentence report. At the
sentencing hearing defense counsel was asked by the court if
he had any objections to the proposed revision of the
presentence report. His response was: "No, your Honor, not
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from the defendant." We have read the record of the
sentencing hearing carefully; defense counsel never mentioned
or alluded to U.S.S.G. 1B1.3(1)(B).
"We do not review sentencing guideline disputes
which were not preserved before the district court." United
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States v. Shattuck, 961 F.2d 1012, 1015 (1st Cir. 1992).
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"Time and again we have held that facts stated in presentence
reports are deemed admitted if they are not challenged in the
district court." United States v. Bregnard, 951 F.2d 457,
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460 (1st Cir. 1991); see also United States v. Dietz, 940
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F.2d 50, 55 (1st Cir. 1991).
There are, therefore, no appealable grounds for us
to consider the application of U.S.S.G. 1B1.3(a)(1).
Defendant relies on Balogun for his contention that the
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sentence be remanded for the district court to consider the
guideline. But Balogun makes it evident that the defendant
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in that case raised the question of the applicability of
U.S.S.G. 1B1.3(a)(1) in the district court. Balogun, 989
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F.2d at 22.
Defendant fares no better on his argument that the
court should have departed downward under the authority of
U.S.S.G. 2F1.1, Commentary 10, which provides:
In a few instances, the loss determined
under subsection (b)(1) may overstate the
seriousness of the offense. This may
occur, for example where a defendant
attempted to negotiate an instrument that
was so obviously fraudulent that no one
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would seriously consider honoring it. In
such cases, a downward departure may be
warranted.
We will assume that by referring to United States
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v. Gregorio, 956 F.2d 341 (1st Cir. 1992), which refers to
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U.S.S.G. 2F1.1 at pages 344-45, defendant preserved this
issue for appeal. We note that after referring to Gregorio,
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defense counsel apparently shifted gears to argue for a
downward departure under U.S.S.G. 5K2.0.
The court made it abundantly clear during the
sentencing hearing that it was fully aware of its power to
depart downward on the amount of loss but would not do so.
In fact, the court discussed the applicability of United
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States v. Rivera, 994 F.2d 942 (1st Cir. 1993), which
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discusses at length the power of the district court to impose
a sentence that departs from the sentencing guidelines.
Under such a scenario we have no jurisdiction to consider the
court's refusal to depart downward (or upward). United
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States v. LeBlanc, No. 93-1847, slip op. at 18 (1st Cir. May
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24, 1994) (as a general rule decision not to depart is not
appealable); United States v. Gifford, 17 F.3d 462, 473 (1st
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Cir. 1994) (no appeal from district court's discretionary
decision not to depart from guidelines); United States v.
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Sepulveda, 15 F.3d 1161, 1202 (1st Cir. 1993) (a sentencing
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judge's informed decision not to depart is a non-appealable
event).
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The judgment below is Affirmed.
Affirmed.
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