
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1222                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  WILLIAM J. CAMUTI,                                Defendant, Appellant.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                             and Boudin, Circuit Judge.                                          _____________                                 ____________________            Thomas V. Laprade, by  Appointment of the Court, with whom  Black,            _________________                                           _____        Lambert, Coffin & Rudman was on briefs for appellant.        ________________________            William P.  Stimson, Assistant United  States Attorney,  with whom            ___________________        Donald K. Stern, United States Attorney,  was on brief for the  United        _______________        States.                                 ____________________                                    March 12, 1996                                 ____________________                 BOUDIN, Circuit  Judge.   In a jury  trial beginning  in                         ______________            September 1993, William Camuti was tried on 13 counts of mail            fraud  in connection  with a scheme  to defraud  investors by            obtaining  their funds  through  false representations.    18            U.S.C.    1341,  2.  On October 18, 1993,  the jury acquitted            Camuti on  two counts and  convicted him on the  remaining 11            counts.   Camuti was  sentenced on February  28, 1994  to 116            months'  imprisonment  and  ordered   to  pay  $2,528,000  in            restitution.  He now appeals, challenging both his conviction            and his penalties.       Taken in the light most favorable to            the government, United States v. Brien, 59 F.3d 274, 275 (1st                            _____________    _____            Cir.), cert.  denied, 116  S.  Ct. 401  (1995), the  evidence                   _____  ______            submitted at trial permitted the  jury to find the following.            Starting  in the early 1980s Camuti  ran a mortgage brokerage            business called "The Loan Depot" from a building in Randolph,            Massachusetts.  Camuti attracted a large number of homeowners            seeking  second mortgages and  placed their applications with            various lenders.                 Beginning in  December  1988  and  continuing  for  some            period,  Camuti  began  to solicit  investments  from several            Waltham  businessmen, known at  trial as "the  Waltham Five."            He represented to them that  their funds would be invested in            high-quality residential mortgages  that he would select  and            service.  The  Waltham Five invested  more than $2.5  million                                         -2-                                         -2-            with Camuti, but in fact Camuti never invested their money in            residential mortgages.                   In February 1989,  Camuti hired Joseph Carroll,  a young            stockbroker,  to  market  pools  of  mortgages  to  potential            investors.  Carroll and several part-time salesmen telephoned            potential  investors  to  persuade them  to  invest  money in            mortgage pools.   The first such pool  was to be backed  by a            mortgage on the Loan  Depot office building in Randolph,  but            Carroll  testified at  trial that  this  initial effort  fell            short and  that he  managed to raise  only $125,000  compared            with a goal of $900,000.                   Carroll  further testified that Camuti responded to this            setback  by instructing Carroll  to tell investors  that each            mortgage pool consisted  of a group of  residential mortgages            on   homes  in  well-to-do   Boston  suburbs.     Camuti  was            represented to be a co-manager of  the pools, and he signed a            mortgage  pool "participation certificate"  that was  sent to            each investor.   Over the  next year,  the program  attracted            over  $1.7 million.  In fact no residential mortgages secured            these investments.                 In October 1989,  about nine months after  Carroll began            his  efforts, the  Securities Division  of the  Massachusetts            Secretary of  State's office  began to  receive reports  that            Camuti might be  illegally marketing unregistered  securities            and sent him a letter  of inquiry.  Camuti told his  attorney                                         -3-                                         -3-            to respond that  the Loan Depot's solicitations  had produced            no response; by  letter of October 27, 1989,  his lawyer told            the Securities Division, inaccurately, that no funds had been            collected  and  no  mortgage  pool  participations  had  been            issued.    In  a  subsequent  letter,  the  lawyer  told  the            Securities  Division,  again  inaccurately,   that  all  such            solicitations had ceased.                 In  spring 1990, Camuti began falling behind in interest            payments  and, in  May  1990,  a  Boston  newspaper  reported            allegations that there were no residential  mortgages backing            Camuti's pools.   In  December 1990,  members of  the Waltham            Five met  with Camuti and  he admitted that their  funds were            not secured by residential mortgages.  In later negotiations,            the Waltham Five sought other collateral; one proposal was to            have one of their  members take control of the  assets in the            Loan  Depot as  a trustee  for  the other  investors, but  no            settlement was ever reached.                 At  trial the  government  presented the  evidence  just            described through approximately twenty-five witnesses.  These            included Carroll, various investors who had been solicited by            Carroll, other  persons familiar  with Camuti's  role in  the            Loan Depot, and four  members of the Waltham Five.   Three of            the four  testified that Carroll  himself had told  them that            their  investments would be  backed by residential mortgages;            the fourth was not specific on this point.                                           -4-                                         -4-                 Camuti's  own position  at trial  was  that Carroll  had            deceived  Camuti  and that  Camuti  had  discovered Carroll's            misrepresentations  only  in  the spring  of  1990,  and then            discharged Carroll.  As to the Waltham Five, Camuti suggested            that  they, or  at least  some of  them, were  engaged in  an            effort  to secure  control of  the Loan  Depot which,  in its            mortgage broker  activities, had been a  successful business.            Camuti  also denied  representing to  the  Waltham Five  that            their  investments  would  be  used to  purchase  residential            mortgages.                 On this appeal, Camuti does  not claim that the evidence            was insufficient to hold him  liable for mail fraud.  Rather,            he argues on several fronts  that the trial court effectively            deprived  him of a fair trial  by restricting his opportunity            to  present  his   defense  and,  further,  that   the  court            misinstructed  the jury.   He also contests  his sentence and            restitution order.       The Cross-Examination of the Waltham                                     ____________________________________            Five.  The government had little trouble in this case proving            ____            that Carroll had  defrauded the mortgage pool  investors; its            problem was to  implicate Camuti in these actions.   The main            witness for  the government,  unfortunately, was  Carroll who            directly   implicated  Camuti   but,   as  a   self-confessed            defrauder, was hardly a perfect witness.  The  government did            have other evidence  linking Camuti to Carroll's  frauds, but            it was obviously quite helpful to the government to show that                                         -5-                                         -5-            Camuti himself had  been making comparable misrepresentations            to his own friends, namely, the members of the Waltham Five.                 In  response, Camuti asserted that the Waltham Five were            using  their transactions with  Camuti to take  over Camuti's            business.   To  make  this showing,  Camuti sought  to cross-            examine  a Waltham  Five  member  about  the  proposed  trust            document  that the Waltham  Five had tendered  to Camuti, and            posed  questions designed  to show  that  another member  had            acquired an interest in  certain of the Loan  Depot's assets.            The  district judge sustained  a number of  objections by the            government to these inquiries.   Camuti now claims that these            rulings were error.                   Few of  the tasks  of a trial  judge are  more difficult            than  coping  with this  kind  of  problem.   A  fragment  of            evidence  is offered seemingly  remote from the  main issues.            At this point,  the trial judge has to rule  on relevance, at            least  provisionally, without knowing  how this fragment will            look  as part  of a larger  pattern.  And  (assuming a proper            objection),  the  judge  may  also  have  to  consider  other            limitations, such as  those based on prejudice  or confusion,            in deciding  how far to  let issues of marginal  relevance be            pursued.                 In this  instance, the  district court  sought side  bar            explanations for  the disputed  evidence and  made clear  its            willingness to give the defense wide latitude  to explore the                                         -6-                                         -6-            alleged scheme of the  Waltham Five if  it could be shown  to                                                __            bear on the  question whether Camuti had  acquired money from            the Waltham Five  based on false representations.   But as we            read the colloquies, ultimately the district court  concluded            that  the necessary foundation was lacking and that questions            about the  trust document  or the  present ownership of  Loan            Depot assets were at best minimally relevant, confusing and a            waste of time.                 We think that this judgment was clearly within the broad            discretion  allowed  to  district  courts  in these  matters,            United  States v.  Jarabek, 726  F.2d 889,  902-03 (1st  Cir.            ______________     _______            1984), and Camuti's  claim of error  fails without regard  to            the government's procedural objections (several of which have            some bite).   The crime  with which Camuti  was charged--mail            fraud--did not require  that the victims be pure  of heart or            even that they have been effectively deceived  by the charged            misrepresentations.    Materiality  issues  aside,  all  that            matters is that the representations were deliberately made by            the defendant.  United States  v. Allard, 926 F.2d 1237, 1242                            _____________     ______            (1st Cir. 1991).                 Camuti's  position, as  we understand  it,  is that  the            alleged motives and later actions of the Waltham Five bore on            the   question  of   whether  Camuti   had   ever  made   the            misrepresentations to  them at  all; Camuti  argues that  the            Waltham Five loaned money to  Camuti rather than invested  it                         ______                                         -7-                                         -7-            in supposed residential mortgages;  and--or so Camuti further            reasons--the malign motive and later actions that the defense            has  attributed to  the Waltham  Five  are inconsistent  with            their story that Camuti made misrepresentations.                   But the inferences are so  thin that they can barely, if            at all,  meet the  generous test of  relevance under  Fed. R.            Evid. 401.  That the  Waltham Five sought security after they            discovered  Camuti's fraud hardly  suggests that any  of them            were   previously  plotting  to  take  over  the  Loan  Depot            business; and even a prior  plot to obtain such control would            tell  little about whether  Camuti had made  false statements            when he  obtained their funds.  The  difference between proof            and speculation is a  matter of degree, but the proof here is            close to the latter end of the spectrum.                  At  the same  time, quite  apart  from irrelevance,  the            evidence  sought  to  be  adduced did  have  the  capacity to            mislead  and  confuse the  jury.    See  Fed. R.  Evid.  403.                                                ___            Although irrelevant to any proper defense,  it lent itself to            the  suggestion that  whatever  Camuti  may  have  done,  the            Waltham  Five took  advantage of  him when  he found  himself            hard-pressed  and that  one member  had  enriched himself  at            Camuti's expense.   In other words, the  scenario that Camuti            sought to suggest could easily have been useful to Camuti but            not for any legitimate purpose.                                         -8-                                         -8-                 Camuti  cites to us  precedent that the  right of cross-            examination is  secured by  the Confrontation  Clause of  the            Constitution,   but   those   cases   involve   unjustifiable            restrictions  on   cross-examination.    E.g.,   Chambers  v.                                                     ____    ________            Mississippi, 410 U.S.  284 (1973).  The  ordinary application            ___________            of Fed.  R. Evid.  401-03 does not  even remotely  impair any            constitutional right under the Sixth Amendment.  See Delaware                                                             ___ ________            v. Van  Arsdall, 475 U.S.  673, 679 (1986); United  States v.               ____________                             ______________            Kepreos,  759 F.2d  961, 964 (1st  Cir. 1985).   It  is worth            _______            adding that the district court went  out of its way to  offer            Camuti an opportunity to create a foundation for the evidence            he sought to adduce.                 The  Telephone Tape.   As  part of  the defense's  case,                 ___________________            Camuti sought to  play for the jury an  audio tape recording.            The  tape had been found in Carroll's desk and, taken at face            value, included several telephone sales pitches by Carroll to            prospective investors.  In the  course of one of the pitches,            apparently  relating  to commercial  property  mortgages, the            speaker--purporting to be Carroll--said that, with respect to            an investment vehicle, "I have one of my clients that's gonna            take the  whole deal,  and that's a  half a  million dollars,            himself."                 Camuti's position, at trial and on appeal, is  that this            comment showed that Carroll's sales efforts to raise money on            commercial  mortgages  were  a success.    This  fact, Camuti                                         -9-                                         -9-            reasons,   undermined  Carroll's   own  testimony   that  his            commercial-mortgage sales efforts had largely failed and that            this  failure  caused  Camuti to  instruct  Carroll  to begin            pitching   non-existent   residential    mortgages   instead.            Camuti's  brief  assumes  that,  if  the  tape  were  played,            Carroll's  comment  about  his  half-a-million-dollar  client            would have been admissible for its truth.                 The  tape recording,  like most  other "real"  evidence,            could be admitted  only upon an offer or  promise of evidence            sufficient to permit  the jury to find that the tape was what            its proponent (Camuti) claimed it  to be: here, recordings of            actual telephone sales  calls by Carroll.  See  Fed. R. Evid.                                                       ___            901.   Camuti offered to  testify that he  himself recognized            the voice as that of Carroll.  The  government said that this            was  insufficient, pointing out that  no chain of custody had            been  proved  and  that  Camuti  himself  had  recorded  over            portions of the tape by using  it to record calls to or  from            his own telephone.                 The district  judge listened  to the tape  and chose  to            exclude it.  His first comment was that the tape had not been            adequately  authenticated.  He  continued by saying  that, in            light of Camuti's constitutional  right to confront witnesses            against him, see  Chambers, 410 U.S. at 294,  the court would                         ___  ________            admit the tape  if "truly exculpatory."  But  the judge ruled            that the call in question appeared to deal with "interests in                                         -10-                                         -10-            commercial property" and  was therefore "not central  to this            case . . . ."                 Chain of custody is one means of authenticating evidence            but not  the only means;  and voice identification  by Camuti            would  have served as evidence that  Carroll was the speaker.            The  government's better  argument  is  that  there  is  some            internal  evidence  that  raises   doubts  about  the  tape's            authenticity,  which Carroll could have removed if Camuti had            called him to authenticate the  tape.  The district judge has            considerable  discretion in  resolving authentication  issues            under Rule  901, United  States v. Carbone,  798 F.2d  21, 24                             ______________    _______            (1st Cir.  1986), but  the district court  did not  choose to            exclude  the tape on  this ground--saying, instead,  that the            evidence was not exculpatory.                 We conclude that  if the tape had any  relevance at all,            it was so  slight that the exclusion  of the tape was  at the            most harmless error.   Under ordinary hearsay rules the  tape            was never admissible  as evidence  that Carroll  had in  fact            sold  a  commercial  mortgage  to  one  of  his  clients  for            $500,000.  The taped conversation,  even if authentic, was an            out-of-court statement by Carroll; and Camuti makes no effort            to  show  that   the  statement  falls  within   any  hearsay            exception.   Accordingly,  if  offered for  the truth  of the            matter  asserted--as  Camuti  assumes  it  to  be--the  taped            comment is excluded by Fed. R. Evid. 802.                                         -11-                                         -11-                 In  Chambers, the Supreme Court held that it can violate                     ________            due process to  exclude reliable hearsay evidence  crucial to            the defense;  there, the  state court in  a murder  trial had            excluded  out-of-court  statements  of  another  that  he had            committed the  crime with  which the  defendant was  charged.            410  U.S.  at 292-93.    But  the  Chambers  statements  were                                               ________            arguably  reliable, cf. Fed.  R. Evid 804(b)(3),  and vitally                                ___            important to the defense;  the hearsay comment of Carroll  is            neither.  Chambers is not a general abrogation of the hearsay                      ________            rule.  Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir.), cert.                   ___    __________                                _____            denied, 502 U.S. 895 (1991).            ______                 Of course,  Carroll's statement  might  still have  been            admissible   not  for  its  truth  but  for  impeachment,  if            sufficiently   inconsistent   with   his   trial   testimony.            Ordinarily, extrinsic  evidence is not admissible  to impeach            by  contradiction;  but   an  exception   exists  where   the            contradiction  is on  a  material issue.    United States  v.                                                        _____________            Perez-Perez,  72 F.3d  224, 227 (1st  Cir. 1995).   It is not            ___________            easy to  tell whether the  vague reference  on the tape  to a            prospective $500,000 investment is at  odds with any point in            Carroll's trial testimony.                 But even  if we assume  that the tape was  authentic and            extrinsic  evidence  of  Carroll's  statement  admissible  to            impeach, it could not have  altered the outcome of this case.            At  most the contradiction, if contradiction there was, would                                         -12-                                         -12-            have  cast a small measure of additional doubt upon Carroll's            veracity.   But  Carroll was  already a  proven liar,  having            engaged  for  months  in  selling  investors  phony  mortgage            certificates.   The jury  nevertheless believed  him when  he            said that Camuti was responsible for the scheme.                 The  jury  had  a basis  for  believing  Carroll's trial            testimony because  there  was also  a  fair amount  of  other            evidence  supporting the view that Camuti had collaborated in            the fraud:  for example,  evidence that  Camuti was  familiar            with   Carroll's  operation,   had   signed  the   investment            certificates,  had   told  similar  lies   about  residential            property to  the Waltham  Five,  and had  instructed his  own            lawyer to  mislead the state  authorities when they  began to            investigate.   The idea that one  additional lie from Carroll            would have  undermined this  structure is  fanciful.   United                                                                   ______            States v. Legarda, 17 F.3d 496, 499 (1st Cir.), cert. denied,            ______    _______                               _____ ______            115 S. Ct. 81 (1994).                 Jury  Instructions.  Camuti says that the district court                 __________________            erred  in  two rulings  on  jury  instructions:  one was  the            court's refusal to give  Camuti's requested instruction  that            good faith was a defense to  the fraud charge; the other  was            granting  the   government's  request  to  instruct   that  a            defendant's knowledge of  fraud may be inferred  from willful            blindness.  Camuti's  counsel did not  object after the  jury                                         -13-                                         -13-            was instructed and before it  retired, as required by Fed. R.            Crim. P. 30, so our review is limited to plain error.                 On  the good  faith instruction, there  was no  error at            all, let alone  plain error.  A separate  instruction on good            faith  is  not  required  in  this  circuit  where the  court            adequately instructs on  intent to defraud.  United States v.                                                         _____________            Dockray,  943 F.2d  152,  155  (1st Cir.  1991).   Here,  the            _______            court's  instruction on  fraud is  not seriously  challenged.            Camuti says that the instruction was  needed here because the            court limited Camuti's  evidence offered to show  good faith.            But missing evidence is not  supplied by instructions; and if            evidence of good faith was excluded in error, Camuti was free            to raise the point.                 As for the  willful blindness instruction, it  was amply            justified in this  case.  United States v.  Gabriele, 63 F.3d                                      _____________     ________            61, 66-67 (1st Cir. 1995).  A jury could reasonably find that            even  if Camuti  had  not actually  directed  the fraud,  the            warning signs were ample to  have alerted Camuti to the fraud            unless he deliberately  chose to close his eyes  to them; two            good   examples  are  the  newspaper  reports  of  the  fraud            (articles  Camuti  discussed  with  his  investors)  and  the            contacts by the  state investigators (which Camuti  sought to            thwart with false information).                  Camuti  suggests  that  this  blindness instruction  was                                         ____            faulty  because  it  could  have  led the  jury  to  apply  a                                         -14-                                         -14-            negligence  standard  in  determining  his  guilt.    On  the            contrary, the judge not only  properly instructed the jury as            to  the elements  of fraud  and  used the  usual formula  for            willful  blindness, see  E.  Devitt,  et  al.,  Federal  Jury                                ___               _______   _____________            Practice and Instructions    17.09 (4th ed.  1992); Gabriele,            _________________________                           ________            63 F.3d at 66 n.6,  but the judge also told the  jury that it            could not find that Camuti  acted knowingly if he "was simply            careless."                   Sentence Calculations.  In calculating the offense level                 _____________________            for Camuti's offense, the district judge increased the figure            by two  levels for  obstruction of  justice under  U.S.S.G.              3C1.1.   From  the prosecutor's  request  and the  subsequent            colloquy, it  is evident that  the district court  based this            ruling on a finding that Camuti had committed  perjury during            the  trial.   United  States  v. Dunnigan,  113  S. Ct.  1111                          ______________     ________            (1993), ordains an enhancement in those circumstances.                 On  appeal, Camuti argued that the district judge's bare            statement at  sentencing--that an obstruction  of justice had            occurred--was  too bare to  show that the  district judge had            found  each of  the elements  of the  perjury enhancement  as            required   under   Dunnigan:      falsity,  willfulness   and                               ________            materiality.  See 113 S.Ct.  at 1116-17.  The government said                          ___            that the findings could be  inferred from context or that the            error,  if any,  was harmless.   Instead  of  speculating, we            retained jurisdiction and, by order, asked the district court                                         -15-                                         -15-            to identify  the obstructive  conduct and the  basis for  any            Dunnigan findings.            ________                 By a supplemental order entered on November 9, 1995, the            district court supplied the specifics.   Its order found that            the perjury lay in Camuti's  testimony that he was unaware of            the misrepresentations  made by  Carroll to  investors.   The            district court's order also specifically found this testimony            to  be false,  willful and  material.   The findings  are not            clearly  erroneous  and, in  fact, Camuti  has offered  us no            reason to doubt that they were correct.  Accordingly, nothing            more need be said about the perjury enhancement.                 The district court  imposed a further  four-level upward            adjustment based on  a finding that Camuti  was the organizer            of a criminal organization that was "extensive."   U.S.S.G.              3B1.1(a).  This  adjustment was imposed after a recitation by            the government of  evidence showing that Camuti's  Loan Depot            organization  had employed  the  services  of  over  a  dozen            people, that the fraud was sophisticated and directed at many            investors, and that it was orchestrated by Camuti.                 The district  judge said that  he was persuaded  by this            argument.  On appeal, Camuti argues (apparently for the first            time) that the  enhancement required not only  that the fraud            be extensive  but also that  Camuti have played  an extensive            role  as  an organizer  or  leader.    The guidelines  do  so            require,  U.S.S.G.     3B1.1(a);  United  States  v.  Tejada-                                              ______________      _______                                         -16-                                         -16-            Beltran, 50  F.3d 105, 111  (1st Cir. 1995); but  in adopting            _______            the  prosecutor's scenario, the  district judge so  found and            the  evidence  supports him.    Thus, if  not  forfeited, the            argument fails.                 Camuti also contends  that the same  enhancement amounts            to double counting because the  size of the fraud was already            reflected in an adjustment based on the loss inflicted by the            fraud.    U.S.S.G.    2F1.1(b)(1).    One  could  argue about            whether  double  counting   is  involved:     the   organizer            adjustment focuses not  on the amount of loss but on the role            of the defendant and the size of the organization; still, the            latter element often  correlates with the  size of the  loss.            But the  short answer  is that this  is at  worst permissible                                                              ___________            double counting, United States v.  Lilly, 13 F.3d 15, 19 (1st                             _____________     _____            Cir. 1994).                 A  final  two-level  upward  adjustment was  based  upon            Camuti's   abuse  of  a   position  of  "private   trust"  to            "significantly facilitate[]" the offense.  U.S.S.G.    3B1.3.            The government's theory was that,  at least as to the Waltham            Five, Camuti was  effectively a fiduciary trusted  by them to            invest  their money in residential mortgages that he (Camuti)            would select.  Cf. United States v. Newman, 49 F.3d 1, 9 (1st                           ___ _____________    ______            Cir.  1995).  The district court  accepted the theory despite            Camuti's rather general objections that his relationship with            the investors had not facilitated any fraud.                                         -17-                                         -17-                 On appeal,  Camuti has  revised his objection.   He  now            says  that his  activities vis-a-vis  the  Waltham Five  were            "incidental" to  the offenses on which he  was sentenced, and            he points  out that  all but  one  of the  mail fraud  counts            related  to other  investors  solicited  by  Carroll.    This                        _____            argument rests  on  the  peculiar logic  of  the  mail  fraud            statute  which makes  criminal  not  the  scheme  to  defraud            standing alone but each use of the mails in connection with a                                    ___            scheme to defraud.  18 U.S.C.   1341.                 The short  answer is  that for  purposes of  determining            responsibility at sentencing, the guidelines include not only            the offense of conviction but  also any other conduct that is            "part of the same  course of conduct or common scheme or plan            as the offense of conviction."   U.S.S.G.   1B1.3(a)(2).  The            government's  main excuse  for offering  evidence  as to  the            Waltham Five was that the frauds directed against the Waltham            Five  were part of the same  overall scheme.  On this theory,            those  frauds were  also  "relevant conduct"  at  sentencing,            regardless of specific mailings.                 There  was certainly evidence that the Waltham Five were            defrauded.    Whether  there was  only  a  single overarching            scheme  might  be  debated, cf.  U.S.S.G.     1B1.3, comment.                                        ___            (n.9); United  States v. Sklar,  920 F.2d 107, 111  (1st Cir.                   ______________    _____            1990);  and there is no explicit finding  on the point by the            district court.    But neither  did Camuti  make his  present                                         -18-                                         -18-            argument at sentencing.  It  is enough here that the evidence            permitted  the  finding of  a  single  scheme and  there  was            certainly  no  plain  error  where,  without  objection,  the            district court proceeded on that premise.                  Restitution.   At sentencing, the district judge ordered                 ___________            Camuti to make restitution payments to members of the Waltham            Five in  the amount of $2,528,000.   This award  was based on            computations in the pre-sentence report reflecting investment            losses in this range claimed by the individual members of the            Waltham  Five.   Camuti did  not  object to  the pre-sentence            report nor object to the  restitution order when the district            court specified the  amounts.  On  appeal, Camuti claims  for            the first time that the restitution order--aside from $37,500            owing to Bowse--was plain error.                 Camuti's theory is straightforward.  Under the statutory            language that applies to his case, restitution may be ordered            only for  losses caused  by the  "offense"  or "offenses"  of            conviction.  18 U.S.C.   3663(a) (1988); see Hughey v. United                                                     ___ ______    ______            States, 495 U.S. 411 (1990).  Later amendments have broadened            ______            the authority to  require restitution to include  harm due to            "the  defendant's criminal  conduct  in  the  course  of  the            scheme,"  18 U.S.C.    3663(a)(2)  (Supp. V,  1993), but  the            changes are not  retroactive.  Newman, 49 F.3d  at 11 & n.14.                                           ______            Camuti's  argument is  that none  of the  investments  of the            Waltham Five, apart from $37,500 owing to  Bowse, was related                                         -19-                                         -19-            to an individual  mailing specified as a count  in the Camuti            indictment.                 As already noted, the mail fraud offense is committed by            a mailing  in aid of a scheme to  defraud.  One can therefore              _______            argue that a loss is caused by the "offense" only if it stems            from a transaction linked to a specific mailing for which the            defendant was indicted.  Although several circuits have taken            a broader  view, this  circuit has  twice  construed the  old            restitution statute to  incorporate such a gloss,  Newman, 49                                                               ______            F.3d at 11; United States v.  Cronin, 990 F.2d 663, 666  (1st                        _____________     ______            Cir. 1993), and this precedent is binding on this panel.                 The government's  first answer  is that  Camuti did  not            raise the  Hughey issue in  the district court  and therefore                       ______            waived it.  Its other answer is to point to  counts 11 and 12            of  the indictment, charging Camuti  with the mailings by his            lawyer  to the state  authorities.  These  mailings, says the            government, delayed  the  discovery and  termination  of  the            scheme and  thereby can be  deemed to have caused  the losses            from investments  made after  the date of  the first  letter.            According to the  government, almost all of  the Waltham Five            investments occurred after this date.  Camuti, in turn, calls            this causal connection a threadbare speculation.                 The government's waiver  argument does not meet  riposte            of  plain error, see United States v.  Olano, 113 S. Ct. 1770                             ___ _____________     _____            (1983); and  our  precedents limiting  the reach  of the  old                                         -20-                                         -20-            restitution statute  are plain  enough.  It  could be  argued            that  Olano's further requirement--that the plain error be "a                  _____            miscarriage of  justice" or  the  like, id.  at 1779--is  not                                                    ___            satisfied where, as here, the  losses in question were due to            Camuti's  fraudulent scheme, even  if not directly  linked to            the charged  mailings.  But  such a rough and  ready approach            would arguably be at odds  with our recent decision in United                                                                   ______            States v. Gilberg,  No. 95-1586, slip op. at  15-17 (Jan. 31,            ______    _______            1996).                 But  in this case,  unlike Gilberg, the  government does                                            _______            have an argument that the restitution ordered by the district            court can be  sustained on the merits based  on counts 11 and            12.    The  government's  causation  argument,  and  Camuti's            response,  are largely  fact-bound;  to  resolve the  dispute            would  require  a remand  to  the district  court  to develop            further facts and a decision by the district court that might            show that  the restitution judgment should be smaller.  Since            Camuti failed  to raise this issue in a timely fashion and it            is by  no  means certain  that  the restitution  judgment  is            substantially excessive, we exercise our undoubted discretion            under Olano to  disregard the alleged error.   113 S.  Ct. at                  _____            1778.                  Affirmed.                 ________                                         -21-                                         -21-
