USCA1 Opinion
April 6, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1013
UNITED STATES,
Appellee,
v.
ELLERTON P. WHITNEY, III,
Defendant, Appellant.
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No. 95-1014
ELLERTON P. WHITNEY, III,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Boudin, Circuit Judges.
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Ellerton P. Whitney, III on brief pro se.
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Paul M. Gagnon, United States Attorney, and Peter E. Papps, First
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Defendant Ellerton P. Whitney appears
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in this court for the fifth time in connection with his 1991
bank fraud conviction. He here appeals from the denial of a
request for post-conviction relief--a request styled as a
motion for new trial under Fed. R. Crim. P. 33 or, in the
alternative, as a petition for relief under 28 U.S.C. 2255.
For the following reasons, as well as those recited by the
district court, we affirm.
The instant request for relief was prompted by events
occurring during Whitney's earlier appeal from his
resentencing. Whitney notes that the government there, in
addressing the amount of loss for purposes of calculating the
offense level, argued that the district court could consider
losses attributable to "uncharged loans" under the relevant
conduct provision of the sentencing guidelines. See U.S.S.G.
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1B1.3. He also notes that we endorsed such a measure in
our decision. See United States v. Whitney, 21 F.3d 420,
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slip op. at 5 (1st Cir. 1994) (per curiam) (table)
("Especially considering that additional losses resulted from
uncharged conduct that was part of a common scheme or
plan,... we find no error in the court's [loss]
determination."). In the belief that neither the presentence
report (PSR) nor the district court had made any reference to
uncharged relevant conduct, Whitney infers that the
government's (and this court's) reference pertained to the
subsequent CRB and FCB loans. From this premise, he proceeds
to conclude, inter alia, that: (1) this court "by clear
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implication" found him not liable for "61.4% of the conduct
for which he was specifically accused, tried, convicted, and
twice sentenced," Brief at 9-10; (2) his conviction was thus
improperly based on charges not appearing in the indictment;
and (3) the government's eleventh-hour admission of these
facts constitutes misconduct warranting dismissal of the
indictment, or at least "new evidence" warranting a new
trial.
Whitney's premise is wrong. The PSR did, in fact, refer
to uncharged relevant conduct (apart from the CRB and FCB
loans). See PSR 40 ("Nor does the figure above [referring
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to the losses specified in the indictment] reflect an
approximately $100,000 loss to the Dartmouth Bank as part of
the same scheme presented earlier in this report."). The
district court specifically incorporated this amount in its
loss calculations. See 4/27/93 Order at 3; 4/26/93
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Transcript at 86. And the reference to "uncharged conduct"
in our earlier opinion was made with the Dartmouth Bank loss
in mind.
In any event, Whitney's complaint here is little more
than a rehash of his "variance" argument that has been
rejected by this court on two previous occasions. See United
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States v. Whitney, supra, slip op. at 2-3, 4-5 (rejecting,
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largely on "law of the case" grounds, the allegation that
"the three loans charged in the indictment actually consisted
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of some seven or more, and that the jury permissibly could
have convicted him on only a portion thereof"); United States
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v. Whitney, 991 F.2d 786, slip op. at 4 (1st Cir. 1993) (per
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curiam) (table) (finding no plain error with respect to
allegation that "the evidence showed different fraudulent
loans than those charged in the indictment"). Issues
disposed of in a prior appeal, of course, will not be
reviewed again by way of a 2255 motion. See, e.g.,
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Singleton v. United States, 26 F.3d 233, 240 (1st Cir.),
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cert. denied, 115 S. Ct. 517 (1994). We also observe,
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contrary to Whitney's suggestion, that our decision in United
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States v. Lilly, 983 F.2d 300 (1st Cir. 1992), does not
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constitute "supervening" law, but rather was issued one month
prior to oral argument in his initial appeal.
Affirmed.
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