USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
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No. 96-1972
UNITED STATES,
Appellee,
v.
JERALD J. COHEN,
Defendant - Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Morris M. Goldings, with whom Richard S. Jacobs and Mahoney,
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Hawkes & Goldings were on brief for appellant.
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Jean B. Weld, Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, was on brief for
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appellee.
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June 25, 1997
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Per Curiam. Defendant-Appellant Jerald J. Cohen
Per Curiam.
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("Cohen") pled guilty to one count of conspiracy to commit bank
fraud and bank bribery, in violation of 18 U.S.C. 371, 1344,
and 215(a)(1). Cohen's offense conduct involved his
participation in a loan scheme whereby he received nearly $16
million in real estate loans, for which he paid at least $734,500
in "kickbacks" to particular bank officials. On August 20, 1996,
the district court sentenced Cohen to 15 years' imprisonment. At
Cohen's sentencing hearing, the district court denied his request
for a two-level downward adjustment for being a minor participant
under United States Sentencing Guidelines 3B1.2. On appeal,
Cohen's only contention is that the district court committed
clear error when it failed to grant him the downward adjustment.
"Assessing a defendant's role in the offense is a
fact-specific task, suggesting by its very nature 'that
considerable respect be paid to the views of the nisi prius
court.' It follows, therefore, that unless a mistake of law
looms . . . [,] a sentencing court's determination of a
defendant's role will be set aside only for clear error." United
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States v. Tejada-Beltr n, 50 F.3d 105, 110-11 (1st Cir. 1995)
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(quoting United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.
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1990)). "The defendant bears the burden of proving that he is
entitled to a downward adjustment for his role in the offense."
United States v. Gonz lez Soberal, 109 F.3d 64, 73 (1st Cir.
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1997).
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The Sentencing Guidelines allow the district court to
grant a two-level downward adjustment to a minor participant in
the criminal activity. This departure applies to "any
participant who is less culpable than most other participants,
but whose role could not be described as minimal." U.S.S.G.
3B1.2, comment. n.3; see United States v. Ocasio, 914 F.2d 330,
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333 (1st Cir. 1989).
Cohen argues that the district court made three errors
in the course of ruling that he was not less culpable than the
other participants in this conspiracy or than the average
participant who commits this offense. He alleges that: (1) the
district court relied on the mere fact that he knowingly
participated in the kickback scheme to conclude that he was as
culpable as the other conspiracy members; (2) the district
court's finding that Cohen was not less culpable than the others
was clearly erroneous in the face of the probation department's
and the U.S. Attorney's1 allegedly contrary assertions; and (3)
the amount of fraudulent loans Cohen received and the bribes he
paid to bank officials had already been taken into account in
establishing the base offense level, implying that consideration
of these amounts in determining that he was not a minor
participant amounted to double-counting. Cohen claims that these
three errors require that we reverse his sentence and remand.
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1 While the U.S. Attorney's Office apparently conceded that
Cohen was less culpable than the other members of the conspiracy,
the Office made clear at the sentencing hearing that it did not
believe that Cohen was less culpable than the average defendant
who commits this sort of bank fraud.
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Beyond these broad and conclusory assertions, however, he has not
been able to point to facts in the record sufficient to compel
the conclusion that his culpability was significantly less than
that of the other participants in the scheme or -- more to the
point -- that his culpability was less than that of the average
defendant who commits bank fraud and bribery. Nor does Cohen
develop or support his argument that the district court's ruling
regarding his culpability relative to the other conspiracy
participants, contrary to assertions of the parties and the
probation department, is necessarily reversible error.
In addition to noting Cohen's failure to present us
with evidentiary support for a minor participant downward
adjustment, we find no error in the district court's conclusion
that he was not entitled to such an adjustment. The district
court specifically noted that Cohen's conduct, including his
active participation in the conspiracy's intended purposes, made
him at least as culpable as the other criminal participants. The
record specifically reveals that, during a one-and-a-half-year
time period, Cohen repeatedly applied for loans for which he
provided bribes and from which he received considerable benefit.
As sole borrower of four loans, Cohen's role was integral to the
success of the scheme as related to these loans. We find no
error in the district court's refusal to grant Cohen a minor
participant downward adjustment.
Upon full consideration of the record, appellate
briefs, and argument of counsel, we affirm the decision of the
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district court on the basis of its rulings at Cohen's August 20,
1996, Sentencing Hearing.
Affirmed.
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