
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1389                                    UNITED STATES,                                      Appellee,                                          v.                                   JEFFREY PHANEUF,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Donald R. Furman, Jr., for appellant.            _____________________            Sheila W.  Sawyer, Assistant  United  States  Attorney, with  whom            _________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                    August 2, 1996                                 ____________________            CAMPBELL, Senior Circuit Judge.  Pursuant to a plea agreement                      ____________________            with the government, defendant-appellant Jeffrey Phaneuf pled            guilty to three counts of  making a false statement on credit            card applications in  violation of 18 U.S.C.    1014, and two            counts of mail fraud in violation  of 18 U.S.C.   1341.   The            United   States  District   Court   for   the   District   of            Massachusetts sentenced Phaneuf to 24 months in prison on the            first  three counts  to  run  concurrently  with  a  30-month            sentence on  the last  two counts, followed  by 36  months of            supervised release.   In addition, the court  ordered Phaneuf            to  pay  $20,400  to  the  Bank of  New  England  ("BNE")  as            restitution for losses.  Phaneuf appeals from his sentence.                                          I.                                          I.                      In  April  1989, police  officers  in Massachusetts            discovered  numerous  stolen credit  cards  in  Phaneuf's car            during a routine traffic stop.   Police obtained a warrant to            search  his  residence  in  Hampton,  New  Hampshire.    They            discovered  numerous credit  cards in  his  name, along  with            receipts  and  credit   card  charge  slips.     A  follow-up            investigation  revealed that 31  of the cards  recovered were            ones that Phaneuf had reported as stolen the previous year.                      In June 1989, evidence from the state investigation            -- including credit card applications, receipts, stop payment            order  receipts,  and   correspondence  between  Phaneuf  and                                         -2-            various banks -- was turned  over to the United States Secret            Service  in Boston.    In July,  Phaneuf  complied with  that            office's  request for handwriting  exemplars to  compare with            the documents obtained from his home.                      In  August 1990, Phaneuf called Agent Hoelen of the            Secret Service to  ask about the status of the investigation.            Phaneuf  offered to cooperate  with the  Secret Service.   In            September 1990, Phaneuf and Agent Hoelen met, without counsel            or  a representative from the United States Attorney's Office            present.   After Agent  Hoelen advised Phaneuf  of his  Fifth            Amendment right against self-incrimination, Phaneuf explained            his  scheme:    from  January  1988  through  March  1989, he            obtained numerous  credit cards  from banks  and credit  card            companies by  submitting false  applications, used  the cards            (or authorized  others to  use them),  and then reported  the            cards   as  stolen  or   failed  to  pay   back  the  issuing            institutions.   He  also wrote  checks  against his  personal            checking account at  BNE to pay off credit  card balances and            then issued  stop  payment orders  on  the checks  after  the            credit card  balances had been  reduced by the amount  of the            checks.  In this way, he was able to resume use of the credit            cards and incur more debt.                        At  the end  of  his  meeting  with  Agent  Hoelen,            Phaneuf signed a two-page typed statement outlining the above            scheme  and initialled an  additional ten or  eleven pages of                                         -3-            "certified  inventory of evidence" forms.  Phaneuf told Agent            Hoelen  that   he  believed   the  total   amount  of   fraud            attributable  to  his  scheme was  about  $176,000.   Phaneuf            apparently made  this comment  in response  to a  higher loss            estimate offered by Agent Hoelen.                      In November 1994, the government filed a five-count            indictment  in the  United  States  District  Court  for  the            District of  Massachusetts charging  Phaneuf with  mail fraud            and making false statements  on credit card applications.   A            plea  hearing was  held on  December  12, at  which time  the            government stated that the total loss attributable to Phaneuf            for  sentencing purposes was approximately $175,000.  Phaneuf            refused to agree to the $175,000 loss amount contained in the            plea  agreement.     Defense   counsel  questioned   how  the            government would  prove this  total amount,  given the  lower            amounts alleged in the various  counts ($64,000 in counts  I-            III and $57,182 in counts IV-V, for a sum of $121,182).  As a            result of this  dispute, the  district court  did not  accept            Phaneuf's  guilty plea  and ended  the  plea proceedings.   A            second plea  hearing was  held on December  20, at  which the            court  accepted Phaneuf's guilty plea but declared the amount            of the loss to be "in dispute."                      On  January   9,  1995,  Assistant   United  States            Attorney Sheila Sawyer filed a notice of appearance replacing            Duane Deskins  who had been  handling Phaneuf's  prosecution.                                         -4-            Shortly   thereafter,  the   probation  department   filed  a            Presentence   Investigation   Report  ("PSR")   that   relied            primarily  upon  Phaneuf's   two-page  signed  statement   of            September   1990  to   characterize   the  offense   conduct.            Phaneuf's base  offense level was  calculated to be  six, and            was  increased by  six  levels  because he  was  found to  be            responsible for a loss amount between $100,001 and $200,000.1            Two more  levels were added because the offense involved more            than minimal planning.  The probation  officer then took into            account  Phaneuf's acceptance  of  responsibility, and  found            that his total adjusted offense level was twelve.  Given that            offense level and a criminal history category of V, Phaneuf's            guideline sentencing range was put at 27 to 33 months.                      The government did not object to the PSR.  Phaneuf            made several objections.  He asserted that neither he nor his            attorney had seen "any information  in the possession of  the            government"  other than his two-page statement given to Agent            Hoelen.    Phaneuf  petitioned  the  probation  department to            confine the  loss calculation  to the figures  listed in  the            mail fraud counts  of the indictment.   The probation officer            considered Phaneuf's objections but refused to alter the loss            calculations.                                            ____________________            1.  The  applicable offense level  for fraud claims increases            in proportion to the value of the fraud.                                           -5-                      Sentencing  was scheduled for  March 27, 1995.   On            March 7,  the government  filed with  the court  a sentencing            memorandum in  support  of the  probation  department's  loss            calculations.   The  government  attached to  its  sentencing            memorandum  an  affidavit from  Agent  Hoelen describing  the            investigation,  the confession signed by Phaneuf in 1990, and            a certified inventory  of evidence prepared by  Agent Hoelen.            On  Thursday,  March  23, Assistant  United  States  Attorney            Sawyer  called  defense  counsel  to  see  whether  he  still            intended to contest  the loss amount and whether  he "had any            interest  in looking  at  the  materials  referenced  in  the            government's sentencing  memorandum prior  to the  sentencing            hearing."  Defense counsel rejected the government's offer to            look at the evidence, stating his intention to  challenge the            government for alleged discovery violations.                       At  sentencing, the  district court  concluded that            the loss amount  was "somewhere in the range  of" $100,001 to            $200,000, and not less than $166,229.38.   The district court            also found  that  the  government  had  not  failed  to  make            available  to the  defense the  documentation  supporting its            loss calculation.   Phaneuf  was  sentenced to  30 months  in            prison,  to be  followed  by a  36-month  term of  supervised            release.   The court  imposed several  special conditions  of            supervised  release:  it  required  Phaneuf  to obtain  prior            approval of  the probation department  before "incurring  any                                         -6-            extension  of credit, including charge cards, credit cards or            loans" and  before making "any  purchase . . .  exceeding the            cost of  $100."   The court further  ordered Phaneuf  to make            restitution to the BNE in the amount of $20,400 for losses it            sustained in connection with the mail fraud scheme.                                           II.                                         II.                      Phaneuf assigns four errors on appeal: (1) that the            government's violation of a local discovery rule deprived him            of a  fair sentencing; (2)  that the district court  erred in            calculating the loss amount for sentencing purposes; (3) that            the  supervised  release condition  requiring  him to  obtain            prior approval  for purchases  over $100  was not  reasonably            related   to  his  offenses  as  required   by  18  U.S.C.               3583(d)(1);  and (4) that  the court's restitution  order was            improper.            1. Discovery Violation            1. Discovery Violation                      Phaneuf  contends that  the government's  purported            failure to  provide the defense with documentation supporting            its  loss  estimate   deprived  him  of  a   fair  sentencing            procedure.  He relies on  Local Rule, D.Mass. 116.1(a), which            requires   that,   in   criminal   cases,   the    government                                         -7-            automatically  disclose  certain   written  evidence  in  its            possession to the defense.2                      Phaneuf argues that  the government violated  Local            Rule 116.1 by  not spontaneously handing over  to the defense            various pieces of evidence including the handwriting analyses            produced  by the  Forensic Services  Division  of the  Secret            Service  and evidence  of "numerous  legitimate payments"  on                                            ____________________            2.  The Rule provides in relevant part:                      In  all  criminal  cases,  the  following                      material and information  . . . shall  be                      disclosed  to  the opposing  party.  Such                      disclosure . . . shall occur . . . in all                      events  within fourteen  (14) days  after                      arraignment.                      (a)  The government  shall disclose,  and                      allow the defendant  to inspect, copy and                      photograph,  all   written  material   as                      follows:                      . . .                      (3)  All relevant  reports of  results of                      physical or  mental examinations,  and of                      all  scientific  tests,  experiments  and                      comparisons, or  copies thereof,  made in                      connection with a particular case.                      (4) All .  . . documents . .  . which the                      Government intends to use at the trial of                      the case. . . .                      (5) All  exculpatory evidence  within the                      meaning of  Giles v.  Maryland, 386  U.S.                                  _____     ________                      66, 87 S.Ct. 793, 17 L.Ed.2d 737  (1967),                      Brady v. Maryland, 373  U.S. 83, 83 S.Ct.                      _____    ________                      1194, 10 L.Ed.2d 215 (1963) and Giglio v.                                                      ______                      United  States, 405  U.S.  150, 92  S.Ct.                      ______________                      763, 31 L.Ed.2d 104 (1972).            Local Rule, D.Mass. 116.1(a).                                         -8-            Phaneuf's credit card accounts.  As a result, Phaneuf argues,            he  could  not effectively  challenge  the  government's loss            estimate and  the  corresponding six-level  increase in  base            offense level.  The government replies that Local Rule 116.1,            on  its  face,  applies  only  to  pre-trial  discovery.   At            sentencing, the government  says, a defendant is  entitled to            no  more than  fair notice  of  the evidence  upon which  the            government intends  to rely.3   In any event,  the government            insists  that  Phaneuf was  fully advised  in advance  of the            sentencing  hearing of the government's evidence and that his            counsel had made no request at all for evidence.                      We need not  linger over what  role, if any,  Local            Rule 116.1  should play at  sentencing.  Under  any analysis,            Phaneuf is not entitled to relief here.   He has only himself            to blame for  any gaps in his  knowledge of the basis  of the            government's sentencing proposals.   Counsel for the  defense            conceded at the sentencing  hearing that, during the two  and            one-half month period  leading up to  sentencing, he did  not            request any data from the prosecution, nor did he request the            court to compel the disclosure of any evidence.4  The absence                                            ____________________            3.  Neither party  contends that  Phaneuf did  not have  fair            notice of  the evidence upon which the government intended to            rely at sentencing.            4.  Although  defense counsel  requested certain  information            from the government  in the period before the  institution of            formal judicial proceedings, he  conceded at sentencing  that            he  did not  request the  documents  at any  point after  the            hearing at which Phaneuf's plea was taken.                                           -9-            of any such  requests is especially telling given  that three            weeks before sentencing the government had filed a sentencing            memorandum setting  forth  the government's  position on  the            loss amount.   Moreover,  some four  days before  sentencing,            Assistant  United  States  Attorney  Sawyer  called   defense            counsel and offered  him an opportunity  to inspect and  copy            the  materials  referenced  in  the  government's  sentencing            memorandum  -- an offer which defense counsel refused, citing            a  strategic  choice to  pursue  a  prosecutorial misfeasance            argument.   Even after  this argument  failed at  sentencing,            defense counsel did  not request a continuance  of sentencing            to  permit  him  an opportunity  to  investigate  further the            government's evidence.                        The district  court, after hearing  argument, found            that the  government did  not fail to  make available  to the            defense the  documentation supporting its  loss calculations.            This finding was amply  supported by the facts and  arguments            presented. See Fennell v.  First Step Designs, Ltd.,  83 F.3d                       ___ _______     ________________________            526, 532  (1st Cir.  1996) (holding that  district court  has            broad discretion  over matters concerning  discovery); United                                                                   ______            States v.  Tajeddini, 996  F.2d  1278, 1287  (1st Cir.  1993)            ______     _________            (noting that rulings on discovery matters are reviewed for an            abuse  of  discretion).     Moreover,  by  not,   even  then,            requesting a continuance during which the  evidence allegedly            withheld  could be  disclosed  and reviewed,  Phaneuf further                                         -10-            weakened  any  claim he  might  conceivably  have  had of  an            alleged discovery violation.   See United States  v. Tardiff,                                           ___ _____________     _______            969 F.2d 1283,  1286 (1st Cir. 1992) ("[E]ven  if a defendant            is faced at sentencing with information that he has not had a            chance  to  rebut .  .  .  we  think  it incumbent  upon  the            defendant to ask  for a continuance then and there."); United                                                                   ______            States  v. Diaz-Villafane, 874  F.2d 43,  47 (1st  Cir.) ("We            ______     ______________            find  it  of  decretory significance  that  defense  counsel,            although  seeking  unsuccessfully  to   block  the  testimony            entirely, never  moved  for a  continuance[;]   [i]t  is,  we            think, incumbent upon a party  faced with such a situation to            ask  explicitly that  the  court  grant  the time  needed  to            regroup, or  waive the point."),  cert. denied, 493  U.S. 862                                              ____________            (1989).                      Phaneuf's  argument  that he  was  denied discovery            documents  is also weakened  by the fact  that much, although            not  all, of the  government's information that  was directly            related to  the loss  estimate was  information that  Phaneuf            himself knew about or could have obtained.  Phaneuf was aware            of the  financial institutions  which he  had defrauded,  and            could  have contacted  them  himself  to obtain  information.            This  is not  a situation  in which  most of  the information            relevant to sentencing was known only to the government.                      We find  no merit  in Phaneuf's  argument that  the            government's  purported failure  to disclose  evidence denied                                         -11-            him  his "constitutional  right not  to  be sentenced  on the            basis of invalid  information."  Diaz-Villafane, 874  F.2d at                                             ______________            47 (quoting United States v. Fogel, 829 F.2d 77, 90 (D.C.Cir.                        _____________    _____            1987)).              2. Amount of Loss            2. Amount of Loss                      Phaneuf  claims that  the  district  court made  an            unreasonable determination of the amount of loss attributable            to  him  for sentencing  purposes.   A district  court's loss            estimate  is   a   factual  determination,   and   "a   party            dissatisfied with  the sentencing  court's quantification  of            the amount of loss in a particular case must go a long way to            demonstrate that the  finding is clearly erroneous."   United                                                                   ______            States v. Rostoff, 53 F.3d 398, 407 (1st Cir. 1995); see also            ______    _______                                    ________            United States v. Pavao, 948 F.2d 74, 77 (1st Cir. 1991).            _____________    _____                      When determining the amount of  loss for sentencing            purposes, the  district court  "need only  make a  reasonable            estimate  of  the  loss,  given  the  available information."            U.S.S.G.   2F1.1, comment. (n.8);   see also Rostoff, 53 F.3d                                                ________ _______            at 407 (stating  that "[c]ourts can, and  frequently do, deal            with rough estimates"  when calculating the amount  of loss).            The  district court  found  that  the  loss  attributable  to            Phaneuf  was "not less than $166,299.38"  which placed him in            the  $100,001 to $200,000  category necessitating a six-level            increase  in  base  offense  level.    In reaching  its  loss                                         -12-            determination,  the  court  considered:  (1)  Agent  Hoelen's            affidavit  describing  his  investigation  and  the  evidence            recovered from Phaneuf's home; (2) Phaneuf's signed statement            made to  Agent Hoelen in  September of 1990 stating  that the            amount  of loss  was  approximately  $176,000;  and  (3)  the            bankruptcy petition filed by Phaneuf in 1994 which discharged            many of his debts.5                      Phaneuf challenges  the court's  loss determination            as  not being  based on  "available  information" within  the            meaning of  U.S.S.G.    2F1.1 comment (n.8),  because it  was            derived in part  from Agent Hoelen's affidavit  and Phaneuf's            statement rather  than from  the underlying  evidence --  the            credit  cards,  receipts,  sales slips,  and  other documents            collected  during  the  investigation.6    This  argument  is            without merit. A  district court may  rely upon any  relevant            evidence,  including  hearsay, to  prove facts  at sentencing            provided the evidence  is sufficiently reliable.   U.S.S.G.              6A1.3(a)   (A   sentencing  court   "may   consider  relevant            information without  regard to  its  admissibility under  the                                            ____________________            5.  According  to  the  PSR,  Phaneuf  filed  for  Chapter  7            bankruptcy protection on February 8, 1994, and was discharged            from debts totalling $210,702 on May 31, 1994.            6.  In  his  challenge  to  the  loss  determination, Phaneuf            reiterates  his argument that  the government, by  failing to            disclose relevant  documents, prevented  him from  presenting            any evidence  regarding  the specific  loss  amount.   As  we            determined  in Part II.1  supra, this argument  fails because                                      _____            Phaneuf was offered  an opportunity to inspect  the documents            in the government's possession.                                           -13-            rules  of evidence  applicable at  trial,  provided that  the            information has sufficient indicia of  reliability to support            its probable  accuracy."); see also Rostoff, 53  F.3d at 407;                                       ________ _______            Tardiff, 969 F.2d at 1287;  United States v. Figaro, 935 F.2d            _______                     _____________    ______            4, 8 (1st Cir. 1991).  Here, the district court relied on the            sworn  affidavit  of  an officer  who,  having  conducted the            investigation,  had  personal  knowledge  of  the  events  in            question.   This is the  type and  kind of evidence  on which            sentencing courts often  rely.   See e.g.,  United States  v.                                             ________   _____________            Aymelek, 926 F.2d 64, 68 (1st Cir. 1991).              _______                      Phaneuf  next   argues  that   he  made   "numerous            legitimate  payments" on his  credit card accounts  which may            have been included  in the court's total loss  amount.7  This            argument is equally unavailing.  Phaneuf has not provided any            evidence that  the legitimate payments were  improperly taken                                            ____________________            7.  In making  this claim, Phaneuf relies on  an excerpt from            his  1990 statement  to  Agent  Hoelen  which  discusses  his            fraudulent practices:                      During  the  course  of  my  credit  card                      activity,  I  made   numerous  legitimate                                           ____________________                      payments   on   my   accounts,   however,                      ________                      subsequent payments made on the following                      accounts  with  checks from  my  personal                      checking  account . .  . were made solely                      for the  purpose of making  full payments                      on the  accounts to create  either a zero                      balance  or  a  credit   balance  and  to                      increase credit  available to me.   After                      submitting  these checks  for payment,  I                      would place a stop payment on them.            (emphasis added).                                         -14-            into account  in determining  the loss amount.   Absent  such            evidence, we logically  conclude that  the loss  calculations            upon which the court relied were based on the amount owing to            various  institutions, rather  than  the  amount  paid.    In            addition, we note that both Agent Hoelen and  Phaneuf himself            (in his  1990 statement) attributed approximately $176,000 of            loss to Phaneuf's fraudulent activities.                               __________                      We see  no error,  let alone  clear  error, in  the            district  court's   loss  determination.     The   government            introduced ample evidence upon which the court could conclude            that  Phaneuf was responsible for not less than $166,299.38.8            Moreover, Phaneuf himself admitted to the court at sentencing            that the loss  attributable to him was  within the sentencing            guideline category of  $100,001 to $200,000 requiring  a six-            level increase in his base offense level.9                                            ____________________            8.  We also dismiss  Phaneuf's perfunctory argument  that the            district court erred in not holding a hearing on the issue of            loss  amount.   The  denial  of  an  evidentiary  hearing  at            sentencing is reviewable only for an abuse of discretion.  We            cannot find that the district court  abused its discretion in            not  granting   an  evidentiary  hearing   when  neither  the            prosecution  nor  the  defense   requested  such  a  hearing.            Tardiff, 969 F.2d at 1286 ("[T]he failure to ask the district            _______            court  to  convene an  evidentiary hearing  ordinarily spells            defeat  for a contention  that one should  have been held.");            see also United  States v. Mala, 7 F.3d  1058, 1062 (1st Cir.            ________ ______________    ____            1993), cert. denied, 114 S.Ct. 1839 (1994).                    ____________            9.  Phaneuf stated at sentencing:                      The amounts of money, at this point, I am                      very confused as  to what it is.  I'm not                      even going to  argue it.  I  guess it has                      to be  somewhere in  the range  of my  --                                         -15-            3. Special Condition of Release            3. Special Condition of Release                      Phaneuf  argues  that the  district court  erred in            imposing a special condition of supervised  release requiring            prior approval  from the probation  department for  purchases            over  $100.     We  ordinarily  review  a   district  court's            imposition of  a special  release condition  for an abuse  of            discretion. See United States v. Thurlow, 44 F.3d 46, 47 (1st                        ___ _____________    _______            Cir.), cert.  denied, 115  S.Ct. 1987  (1995).   However,  as                   _____________            Phaneuf   did  not  object   to  the  special   condition  at            sentencing,  our review is for plain error. See United States                                                        ___ _____________            v. Peppe, 80 F.3d 19, 22 (1st Cir. 1996).               _____                      The  court, adopting the recommendation in the PSR,            imposed the  following special  conditions on  Phaneuf to  be            observed during his three-year period of supervised release:                      The  defendant  shall  participate  in  a                      mental health counselling  program at the                      direction of the probation department.                        The  defendant  shall  not  open any  new                      lines of credit without prior approval of                      the probation department.                      The   defendant   shall  not   make   any                      purchases   over   $100   without   prior                      approval of the probation department.                      The defendant shall provide the probation                      department with  any requested  financial                      information and records.            A sentencing  judge has  broad discretion  to impose  special            conditions  of release that  are "reasonably related"  to (1)            the defendant's offense, history and characteristics; (2) the                                            ____________________                      within the hundred  thousand and 200,000.                      So I am not really going to argue it.                                         -16-            need for adequate deterrence; and (3) the need to protect the            public from further crimes of  the defendant.10  See U.S.S.G.                                                             ___              5D1.3(b)  and  the corresponding  statutory provisions,  18            U.S.C.    3553(a)(2), 3583(d).                        Phaneuf challenges  the special  condition limiting            his purchasing power, arguing that "[t]he record is silent on            a  relationship  between  spending  $100.01,  accepting  pre-                                            ____________________            10.  See,   e.g.,  Peppe,  80  F.3d  at  23  (condition  that                 ___________   _____            defendant   could  not  incur  new  credit  charges  or  open            additional  lines  of   credit  without  prior   approval  of            probation  department  permissible as  an  effort  to monitor            defendant's use of  funds where defendant had  been convicted            of extortionate extension  of credit); Thurlow, 44 F.3d at 47                                                   _______            (condition that defendant convicted of theft-related offenses            abstain  from   consuming  alcohol  permissible   because  of            defendant's  history  of  substance abuse  and  use  of crime            proceeds  to purchase  alcohol on several  occasions); United                                                                   ______            States  v. Johnson,  998 F.2d  696, 699  (9th Cir.  1993) (no            ______     _______            abuse of discretion to impose, along with other restrictions,            condition  requiring that defendant  abstain from alcohol use            where defendant had  history of substance abuse and  had been            involved  in  alcohol-related  incidents);  United States  v.                                                        _____________            Chinske, 978 F.2d  557, 560 (9th Cir.  1992) (conditions that            _______            defendant own no firearms, attend a substance abuse treatment            program, and  submit to searches of his  person, vehicle, and            residence related to  offense of maintaining a  residence for            the  cultivation of marijuana);  United States v.  Sharp, 931                                             _____________     _____            F.2d  1310,  1311  (8th   Cir.  1991)  (condition  subjecting            defendant  to   warrantless  searches  to   determine  if  he            possessed alcohol or drugs permitted when defendant convicted            of narcotics violation);  cf. United States v. Abrar, 58 F.3d                                      __  _____________    _____            43,  46-47 (2d Cir.  1995) (condition requiring  defendant to            pay  back personal loans unrelated to crime constitutes plain            error); United  States v.  Prendergast, 979  F.2d 1289,  1293                    ______  ______     ___________            (8th Cir. 1992) (conditions  requiring defendant convicted of            wire fraud  to abstain from  consuming alcohol and  drugs, to            undergo drug tests, and to be subject to warrantless searches            of his premises, vehicle, or person, impermissible in absence            of  "evidence   indicating  that  [defendant]   suffers  from            alcoholism or that the use  of alcohol in any way contributed            to  the   commission  of  the   offense  for  which   he  was            sentenced").                                         -17-            approved credit cards,  and perpetrating a fraud on  a bank."            While it  would have  been helpful had  the court  stated its            rationale,  we can perceive  a sufficient  connection between            the restriction and Phaneuf's criminal conduct for the former            to pass muster under the plain error standard.                        As  Phaneuf  concedes,  he has  a  long  history of            mental  health problems11 and,  at times, has  been unable to            control his spending.   The nature of the imposed  conditions            strongly suggests that  the district  court viewed  Phaneuf's            credit card crimes as stemming from a total lack of financial            discipline and  a compulsion to  make excessive expenditures.            The court could  rationally have concluded that  oversight of            expenditures  over  $100   would  help  deter  the   kind  of            overspending and  debt that might  once more lead  Phaneuf to            undertake fraudulent schemes.12                      To  overturn  the condition  under the  plain error            standard, Phaneuf  must show an obvious and clear error under                                            ____________________            11.  Phaneuf was  hospitalized as an adolescent  for "conduct            disorder" and "unsocialized aggressive" behavior and has been            treated for  behavioral problems  on and  off throughout  his            life.            12.  Another   justification  of   the  limit   on  Phaneuf's            purchasing  power  stems  from  his  outstanding  restitution            obligation  to  pay  $20,400 to  BNE.    The  court's special            condition will help  to ensure that Phaneuf  satisfies to the            best  of his ability  his restitution obligation  rather than            spending  his   money  on   other  things.     Because   this            justification  is not attributable  to a factor  set forth in            U.S.S.G.    5D1.3(b) or the corresponding statutes, 18 U.S.C.               3553,  3583, it  does not  deserve conclusive  weight, but            still is a part of the total picture.                                         -18-            current   law   that   affected   his   substantial   rights.            Fed.R.Crim.P.  52(b); United States  v. Olano, 507  U.S. 725,                                  _____________     _____            732-35 (1993); United States v. Laboy-Delgado, 84 F.3d 22, 31                           _____________    _____________            (1st Cir. 1996).  Even  if plain error exists, Olano suggests                                                           _____            that courts should  not exercise their discretion  to correct            the  error  unless  it  "seriously  affect[s]  the  fairness,            integrity  or  public  reputation of  judicial  proceedings."            Olano, 507  U.S. at 736  (quoting United States  v. Atkinson,            _____                             _____________     ________            297 U.S. 157, 160 (1936)).  In this case, even if we  were to            assume, arguendo, that  the district court went too  far, the                    ________            error was not  "obvious and clear" nor does  it implicate the            fairness or integrity of judicial proceedings.  The condition            limiting Phaneuf's  purchasing power is effective only during            his  period   of  supervised   release,  does   not  prohibit            expenditures of over $100 but merely requires pre-approval of            the  probation department,  and bears  at  least an  arguable            relationship to  checking  the  irresponsible  behavior  that            underlay Phaneuf's crimes.            4. Restitution            4. Restitution                      Phaneuf argues  that the sentencing court  erred in            ordering restitution in  the amount of $20,400 to  be paid to            BNE,  pursuant to  the  Victim  and  Witness  Protection  Act                                         -19-            (VWPA), 18 U.S.C.     3663-3664 (1995).13  Our  review is for            plain  error as  Phaneuf did  not object  to the  restitution            order at sentencing.  See  United States v. Springer, 28 F.3d                                  ___  _____________    ________            236, 237, 239 (1st Cir. 1994).                      A  sentencing   court   is   permitted   to   order            restitution  "to any victim."   18 U.S.C.   3663(a) (1995).14            In ordering restitution the court is required to consider:                      the  amount  of  loss  sustained  by  any                      victim  as a  result of the  offense, the                      financial resources of the defendant, the                      financial  needs and  earning ability  of                      the   defendant   and   the   defendant's                      dependents, and such other factors as the                      court deems appropriate.            18 U.S.C.   3664(a) (1995).15                      Phaneuf  claims  that   the  restitution  order  is            contrary to law for two  reasons.  First, he asserts that  he            is incapable  of making  restitution, citing  his history  of            mental  disorders,  his lack  of  professional  training, his            virtually non-existent  employment  record, and  his lack  of            assets.  Phaneuf predicts that he will likely be incarcerated                                            ____________________            13.  The VWPA,  18 U.S.C.     3663-3664, was  amended by  the            Antiterrorism and Effective  Death Penalty Act of  1996, Pub.            L. No. 104-132,     205, 206, 110 Stat. 1230, 1232  (Apr. 24,            1996).   However,  the  1996  amendments  are  effective  for            sentencing  proceedings  in  cases  in  which   defendant  is            convicted on or after April 24,  1996.  See Pub. L. No.  104-                                                    ___            132,   211, 110 Stat. 1232.  Therefore, the pre-1996 version,            cited  throughout this section of the opinion, is controlling            in Phaneuf's case.            14.  See supra, note 13.                 ___ _____            15.  See supra, note 13.                 ___ _____                                         -20-            again as a result of  being unable to satisfy the restitution            order.    We  find  Phaneuf's  argument  unpersuasive.    The            district court  was not  required to  make explicit  findings            regarding   Phaneuf's   ability   to  pay   before   ordering            restitution,  so long as it considered  the factors set forth            in   3664(a).   See United  States v. Newman,  49 F.3d 1,  10                            ___ ______________    ______            (1st Cir. 1995); Springer, 28 F.3d at 239.  Moreover, Phaneuf                             ________            need not  be able to  pay the restitution  award immediately.            See  United States  v. Lombardi,  5 F.3d  568, 573  (1st Cir.            ___  _____________     ________            1993).   Restitution awards may  be imposed in order  to make            victims whole should the defendant  become able to pay in the            future.  See Newman,  49 F.3d  at  10-11.   Here, given  that                     ___ ______            Phaneuf  is a  26-year-old high  school graduate,  it is  not            unforeseeable that he may earn some income when released from            prison.   Moreover, Phaneuf can  later seek a modification of            the restitution order in the  sentencing court if he can show            that it is too onerous.  See Springer, 28 F.3d at 239 n.2.                                     ___ ________                      Second,  Phaneuf  argues  that  the district  court            erred in ordering  restitution to be paid to  BNE because, at            the  time  of sentencing,  BNE  had  failed and  the  Federal            Deposit Insurance Corporation ("FDIC") had been appointed its            receiver.   Phaneuf  further  argues  that  the  FDIC,  which            succeeded to the assets and liabilities of the failed bank by            operation of  law, see  12 U.S.C.    1821(d)(2)(A), is  not a                               ___                                         -21-            proper  "victim" entitled  to restitution  under the  VWPA.16            Phaneuf argues that the letter he received from the probation            department  instructing him to  make his restitution payments            to  the  FDIC  was  improper.   He  contends  that  an  order            instructing him to  pay an entity other than BNE  had to come            from  the  court  rather   than  the  probation   department.            According to Phaneuf, restitution can only be paid to someone            other  than the  victim, in  this case  BNE, pursuant  to the            following provision of the VWPA:                      the  court   may,  in  the   interest  of                      justice, order restitution  to any person                      who has  compensated the victim  for such                      loss to the extent  that such person paid                      the compensation.            18 U.S.C.    3663(e)(1)  (1995).17  Since  the court  did not            award restitution  to the  FDIC pursuant  to this  provision,            Phaneuf argues that the restitution order was improper.                      We  find no  plain  error  either  in  the  court's            restitution  order   or   in   the   probation   department's            instructions to make restitution  payments to the FDIC.   BNE            was in fact a victim of  Phaneuf's fraud when committed.  The            failure  of  BNE and  the  appointment  of  the FDIC  as  its            receiver had  not been brought to the  court's attention when                                            ____________________            16.  Defendant  also contends  that his  Mastercard debts  of            $20,400 have subsequently been sold to Citibank by  the FDIC.            However, there  is no evidence  of this in the  record before            us.            17.  See supra, note 13.                 ___ _____                                         -22-            it  entered its order,  hence the court  order understandably            named BNE.  Given that the  FDIC "steps into the shoes" of  a            failed bank, O'Melveny & Myers  v. FDIC, 114 S.Ct. 2048, 2054                         _________________     ____            (1994), we see no reason  why the probation department should            not substitute the  FDIC for the failed bank  as the "victim"            of  Phaneuf's fraud.  See   United States v. Haddock, 50 F.3d                                  ___   _____________    _______            835, 841 (10th Cir. 1995) (holding that restitution was due a            bank that  purchased one  of the banks  involved in  the loan            transactions  for  which  defendant  was  convicted);  United                                                                   ______            States v.  Smith,  944  F.2d  618,  621-22  (9th  Cir.  1991)            ______     _____            (holding that the VWPA "is  intended to encompass both direct            and indirect victims of criminal acts" and therefore allowing            the FSLIC to receive restitution), cert. denied, 503 U.S. 951                                               ____________            (1992); United  States v. Rochester,  898 F.2d  971, 980  n.7                    ______________    _________            (5th Cir. 1990)  (holding that the  district court may  award            the FSLIC  restitution  under the  VWPA  when the  FSLIC  has            acquired the claims of an insolvent savings and loan that was            the victim  of defendant's  crime).    Needless to  say, such            matters remain  subject to  the  district court's  continuing            oversight  and  control,  but  we see  no  error  subject  to            appellate correction at this juncture.                                         III.                                         III.                      For the foregoing reasons, the judgment and            sentence of the district court is affirmed.                                              affirmed.                                              _________                                         -23-
