
USCA1 Opinion

	




          January 25, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1721                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                   DENNIS L. MASON,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                                                                      ____________________                                Selya, Cyr and Stahl,                                   Circuit Judges,                                   ______________                                                                                      ____________________             Richard H. Gens for appellant.             _______________             Pamela  Merchant,  Trial  Attorney, United  States  Department of             ________________        Justice,  with whom Donald K.  Stern, United States  Attorney, Mark D.                            ________________                           _______        Seltzer,  Acting Director, New England Bank Fraud Task Force, and Mark        _______                                                           ____        Adler,  Senior Trial  Attorney, United  States Department  of Justice,        _____        were on brief for appellee.                                                                                      ____________________                                                                                      ____________________                    Per Curiam.   Dennis  L. Mason appeals  his convictions                    Per Curiam.                    __________          and sentences for  bankruptcy fraud, bank fraud,  and money laun-          dering, see 18 U.S.C.    152, 1344, 1957.  We affirm.                   ___                    In  December 1987,  Mason  and First  Service Bank  for          Savings  ("First Service")  finalized  a loan  agreement  whereby          First  Service was to advance  $5 million to  Concord Woods North          Realty Trust ("Realty Trust")  for the sole purpose  of acquiring          and developing twenty-five  acres of real estate in  Concord, New          Hampshire.   On the  closing date,  First Service  disbursed over          $2.4  million to Mason, as trustee of Realty Trust; Mason immedi-          ately directed  that approximately  $200,000 be deposited  in his          personal account  at  the Bank  of  Boston.   The  day after  the          closing, Mason  disbursed  $12,000  from  this  personal  account          toward the purchase of jewelry for his wife.                      During 1988,  Mason diverted approximately  $860,000 in          First Service loan proceeds  to purposes unrelated to  the Realty          Trust project, including  a $500,000 transfer to an  Ohio account          in the  name of his  lawyer.  Between  March and August  1989, he          transferred another  $100,000 in loan proceeds to  a bank account          in his wife's name.                    After  First Service  Bank closed  and its  assets were          acquired by the Federal Deposit Insurance Corporation ("FDIC") in          March 1989, Realty  Trust filed  a chapter 7  petition, in  which          Mason, as  trustee, failed to disclose any of the above-described          diversions of  First  Service loan  funds.   In  May 1989,  at  a          meeting of  creditors in the Realty  Trust bankruptcy proceeding,                                          2          Mason  testified that  all First Service  loan proceeds  had been          applied to the  Realty Trust  real estate project.   Mason  later          made similar misrepresentations  to FDIC  attorneys in  September          1989,  and again in 1992.  In  March 1992, he destroyed his busi-          ness records.  Two months later he filed his own personal chapter          7 bankruptcy petition.                     Mason first  claims that  the district court  failed to          instruct the jury on the essential  elements of the crime of bank          fraud under  section 1344.1  Since Mason  failed to object to the          jury instruction, we  review only  for plain error.   See  United                                                                ___  ______          States v. Hurley, 63 F.3d  1, 9 (1st Cir. 1995).   The challenged          ______    ______          jury  instruction  met  the  three-part  standard  established in          United States v. Brandon, 17 F.3d 409, 424 (1st Cir.) (bank fraud          _____________    _______          elements  under 18 U.S.C.    1344 require  showing that defendant          knowingly engaged in  a scheme  or artifice to  defraud, or  made          false  statements or  misrepresentations  to  obtain money  from,          bank), cert. denied, 115 S.  Ct. 80 (1994).  There was  no error,                 _____ ______          let alone plain error.                                        ____________________               1As many  arguments advanced by  Mason on appeal  are redun-          dant, undeveloped, unpreserved, or patently frivolous, they merit          no discussion.  In particular, since Mason mounts only a perfunc-          tory challenge  to the bankruptcy fraud  instructions, see United                                                                 ___ ______          States v. Zannino,  895 F.2d 1, 17 (1st  Cir.), cert. denied, 494          ______    _______                               _____ ______          U.S. 1082 (1990), and the  record on appeal does not  include the          challenged instructions,  see Fed. R.  App. P. 10(b),  11(a); see                                    ___                                 ___          Plummer v.  Springfield Terminal Ry. Co.,  5 F.3d 1, 5  (1st Cir.          _______     ____________________________          1993) (merits not reached because pertinent material not included          in  record  on appeal),  cert. denied,  114  S. Ct.  1057 (1994);                                   _____ ______          United  States v. One Motor  Yacht Named Mercury,  527 F.2d 1112,          ______________    ______________________________          1113-14 (1st Cir. 1975), we deem the claim abandoned.                                           3                    Mason next  contends that the district  court committed          reversible error by rejecting his  motion for judgment of acquit-          tal on  the  bank  fraud  charge, since  there  was  insufficient          evidence that he had embarked on a scheme to defraud  the bank by                                                                         __          the time the  loan documents were executed in December  1987.  We          ___ ____ ___  ____ _________ ____ ________ __ ________  ____          evaluate the evidence in the light most favorable to the verdict,          which must  be affirmed if a rational jury could have found Mason          guilty beyond a reasonable  doubt.  United States v.  Vavlitis, 9                                              _____________     ________          F.3d 206, 212 (1st Cir. 1993).                      Although  Mason  attempts to  explain the  $12,000 dis-          bursement from his personal account at Bank  of Boston to pay for          jewelry  for his wife the day after receiving the initial advance                                ___ ___ _____          from First  Service on  the Realty  Trust loan,  there can be  no          question that  this virtually contemporaneous evidence was suffi-          cient to enable the  jury reasonably to infer that  the scheme to                                                  _____          defraud  had been  formulated by  the time  the loan  closing oc-                                        __  ___ ____  ___ ____  _______ ___          curred.   Moreover, larger  diversions of the  Realty Trust  loan          ______          proceeds began within three months  after the loan documents were          executed.   The  jury  was free  to  infer from  this  reasonably          proximate  subsequent conduct  that Mason's fraudulent  intent to          engage in the scheme had originated  by the time he executed  the          loan  documents,  especially  since he  presented  no  compelling          explanation for  embarking upon the improper  loan diversions the          day after the  closing.   See United States  v. Sutton, 970  F.2d                                    ___ _____________     ______          1001, 1007 (1st Cir. 1992) ("testimony, though it centered around          later-occurring events,  was relevant to  show appellant's intent                                          4          at an earlier date"); United States v. Mena, 933 F.2d  19, 25 n.5                                _____________    ____          (1st Cir. 1991) (similar).                     Mason raises  two sentencing claims.   First, he argues          that the two-level sentencing  enhancement for more than "minimal          planning," see  U.S.S.G.   2F1.1(b)(2),  was unwarranted  because                     ___          the bank  fraud, bankruptcy  fraud, and money  laundering conduct          constituted "singular transactions" or "single acts."  We find no          clear error.   See Brandon, 17  F.3d at 459.   The record reveals                         ___ _______          that  Mason repeatedly  diverted First  Service loan  proceeds to          personal and other improper purposes throughout much of 1988  and          1989.   Thus, the  sentencing enhancement  for more  than minimal          planning simply reflected the  reality that his prolonged conduct          was  no "spur  of  the moment"  undertaking.   United  States  v.                                                         ______________          Gregorio, 956 F.2d 341, 343 (1st Cir. 1992).           ________                    Second, Mason  claims that  the total  loss calculation          was clearly  erroneous.  He relies  on a $4 million  appraisal of          the  Concord Woods  North  property, whereas  the district  court          relied on a  $110,000 FDIC  appraisal.  We  review the  valuation          ruling for clear error.  United States v. Tardiff, 969 F.2d 1283,                                   _____________    _______          1288 (1st Cir.  1992).   The record discloses  that the  district          court reasonably  could have  found that Mason's  appraisal over-          stated the number  of single-family homes the Concord Woods North          property could accommodate and  relied on inflated valuations for          individual building lots.  On the other hand, the much lower FDIC          appraisal figure is the product of alternative valuation methods;          viz., an "income capitalization  approach" and a "comparable land                                          5          sales approach."  See U.S.S.G.   6A1.3(a) ("the court may consid-                            ___          er relevant information .  . . provided that the  information has          sufficient indicia of reliability to support its probable accura-          cy.").  On this record, there was no clear error  in the district          court finding  that the  defendant's valuation was  less reliable          than that of the FDIC.  United States v.  Tejada-Beltran, 50 F.3d                                  _____________     ______________          105, 110 (1st Cir. 1995) ("[T]he  sentencing court's choice among          supportable alternatives cannot be clearly  erroneous.") (quoting          United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).          _____________    ____                    Finally,  Mason  presents  an "ineffective  assistance"          claim based on trial counsel's alleged failure (1) to object to a          supplemental  jury instruction on bank fraud, and (2) to move for          a new trial based on the same instruction.  See  United States v.                                                      ___  _____________          Ortiz,  23 F.3d  21  (1st Cir.  1994) (entertaining  "ineffective          _____          assistance" claim on direct  appeal where record was sufficiently          developed and critical facts were not in dispute).                      The  instruction  in question  informed  the  jury that          appellant could be  convicted upon "whatever scheme  you find the                                              ________ ______          government  has proven  beyond  a reasonable  doubt."   (Emphasis          added.)  Mason asserts that this rendered the indictment "duplic-          itous."  We disagree.  The challenged instruction  simply permit-          ted the jury to convict based on a scheme plainly  alleged in the          indictment.  The evidence adduced  at trial worked no  broadening          of the scheme alleged  in the indictment.   See United States  v.                                                      ___ _____________          Miller, 471 U.S.  130, 145  (1985).   The ineffective  assistance          ______          claim therefore  fails as Mason has  not demonstrated "prejudice"                                          6          from  the alleged omission by  trial counsel.   See Strickland v.                                                          ___ __________          Washington, 466 U.S. 668, 687 (1984).           __________                    Affirmed.  See 1st Cir. R. 27.1.                    Affirmed.                    ________   ___                                          7
