
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2105                                    UNITED STATES,                                      Appellee,                                          v.                                   THOMAS D'ANDREA,                                Defendant - Appellant.                                 ____________________                                     ERRATA SHEET               The opinion of this court issued on March 5, 1997 is amended          as follows:               Page 22, line 15 should read:  "1988)) (citations omitted)."                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2105                                    UNITED STATES,                                      Appellee,                                          v.                                   THOMAS D'ANDREA,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Tauro,* District Judge.                                         ______________                                _____________________               Arthur  R. Silen,  by appointment  of the  Court, with  whom               ________________          Roberts & Newman, P.A. was on brief for appellant.          ______________________               Ira  Belkin,  Assistant  United States  Attorney,  with whom               ___________          Sheldon  Whitehouse, United  States  Attorney, was  on brief  for          ___________________          appellee.                                 ____________________                                    March 5, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA,  Chief   Judge.     On  October   13,  1994,                    TORRUELLA,  Chief   Judge.                                _____________          Defendant-Appellant Thomas D'Andrea ("D'Andrea") was  indicted on          one count of  bank fraud in violation of 18  U.S.C.   1344 (Count          One) and six  counts of  making false statements  to a  federally          insured financial institution in violation  of 18 U.S.C.    1014.          After  a two-week trial in the  District Court of Rhode Island, a          jury found D'Andrea  guilty on  all counts.   The district  court          sentenced D'Andrea to  five years' imprisonment on Count  One and          two  years' imprisonment  for each  of the  other counts,  to run          concurrently, and  three years'  supervised release on  Count One          and one year supervised release on the  other counts, also to run          concurrently.   In addition, the district  court ordered D'Andrea          to make restitution  to the Resolution  Trust Corporation in  the          amount  of $2.2 million for losses related to the fraudulent loan          activities.  D'Andrea now claims errors related to both the trial          and sentencing phases.   Concluding that  the district court  did          not commit error, we affirm D'Andrea's conviction and sentence.                                      BACKGROUND                                      BACKGROUND                    In  late  1988, D'Andrea,  Robert  D'Andrea (D'Andrea's          brother),  Gary Lowenstein,  and Michael  Tulman applied  for and          obtained a  $2.88 million loan  from New England  Federal Savings          Bank  ("New England Federal" or  "the bank"), a federally insured          institution.   The loan was obtained for the purpose of acquiring          a warehouse and truck terminal located in Cranston, Rhode Island.          Because  the bank would  only lend  up to  eighty percent  of the          total purchase price of the warehouse, D'Andrea, and at least one                                         -2-          of the sellers of the property, Frank Paolino, schemed to inflate          the  purchase price of the  warehouse from just  over two million          dollars  to $4.18 million.   By so inflating  the price, D'Andrea          was able to  receive from the  bank a loan in  the amount of  the          purchase  price,   thereby  relieving  himself   and  his  fellow          purchasers  of the burden of putting  any of their own money into          the purchase of the warehouse.                    The scheme  went as  follows.  D'Andrea  represented to          New  England  Federal that  the  purchasers  would pay  the  $1.3          million difference  required to  meet the $4.18  million purchase          price.  In  order to make up  this gap, D'Andrea submitted  false          records to the bank indicating that certain deposits  had already          been  made to  the  sellers.   In  addition, the  bank  requested          agreements  indicating the  amount of  rent paid  by each  of the          tenants  at the warehouse.  D'Andrea forged the signatures of the          officers  of each of the  warehouse tenants on  documents that he          then submitted to the  bank.  D'Andrea also submitted  a document          to  the bank  indicating  a tenant-landlord  relationship with  a          company  that never rented space at the warehouse.  Two witnesses          testified that  D'Andrea presented them with  copies of documents          containing falsified rental amounts for tenants at the warehouse.          D'Andrea  also  admitted  that  he forged  tenant  signatures  on          tenant-at-will agreements without the  knowledge or permission of          officials at the tenant-companies.                    During the course of the trial, D'Andrea testified that          he took  pains to pay off the $2.88 million loan from New England                                         -3-          Federal.    On  cross-examination  of  D Andrea,  the  government          elicited testimony that he used proceeds from a $5.9 million loan          from  Rhode Island Central  Credit Union to pay  off part of that          loan.   D'Andrea obtained this  loan along with  four others, the          Zarella brothers.1   D'Andrea  testified that, in  obtaining this          loan,  he forged the signatures of the Zarella brothers  wives on          a guarantee form.                    Finally,  D'Andrea used the  warehouse property located          in  Cranston, Rhode  Island, obtained  through the  use of  false          documents, as security  for yet another  loan, for $585,000  from          Rhode Island Central Credit Union.                                      DISCUSSION                                      DISCUSSION                    D'Andrea makes numerous claims on appeal, most of which          we  discern to be  related to his  sentencing.   We will consider          each argument individually.          I.  Government's Use of the Phrase "Straw Borrowers"          I.  Government's Use of the Phrase "Straw Borrowers"                    Without citation to  any supporting case law,  D'Andrea          argues as follows:                      At trial, over D'Andrea's  objection, the                      prosecutor   repeatedly  asked   D'Andrea                      whether he used 'straw borrowers   in his                      dealings with Rhode Island Central Credit                      Union.  . .  .    D'Andrea  denied  using                      'straws', but regardless, the  jury could                      not  have  been  unaffected, because  the                      term 'straw borrowers'  was a  hot-button                      term repeatedly used by the news media to                      describe unsophisticated participants  in                                        ____________________          1   This name  is spelled "Zarella"  in the  trial transcript and          "Zarrella" in the sentencing hearing transcript.  For purposes of          consistency, we will use the spelling "Zarella."  Some quotations          taken from Appellant's Brief contain the spelling "Zarrella."                                         -4-                      real  estate  ventures who  were  said to                      [have]  been induced  to  join with  real                      estate developers  in funding speculative                      and unsound real estate ventures.          We read this  statement to  be an argument  that the  prejudicial          effect of the government's  use of the term "straw  borrowers" so          outweighed  its probative  value that  the district  court should          have barred use of  the term.  "Unfairly prejudicial  evidence is          evidence . . .  that 'triggers [the] mainsprings of  human action          [in  such a way  as to]  cause the jury  to base  its decision on          something other  than the established proposition  in the case.'"          United  States  v.  Currier, 836  F.2d  11,  18  (1st Cir.  1987)          ______________      _______          (quoting 1 Weinstein's Evidence   403, 36-39 (1986)).                    We review  a district  court's evidentiary  rulings for          abuse of discretion.   United States v. Trenkler, 61  F.3d 45, 56                                 _____________    ________          (1st  Cir.  1995).    We  grant  a  district  court's on-the-spot          determination of  prejudice and probativeness  wide latitude  and          "'[o]nly   in  exceptional  circumstances  will  we  reverse  the          exercise of a district  court's informed discretion vis-a-vis the          relative  weighing of  probative value  and unfairly  prejudicial          effect.'"  United States v. DiSanto, 86 F.3d 1238, 1252 (1st Cir.                     _____________    _______          1996)  (quoting  Currier, 836  F.2d  at 18),  petition  for cert.                           _______                      ___________________          filed, No. 96-1176, 65 U.S.L.W. 3531 (Nov. 12, 1996).          _____                    Although  the  judge  did  not  make  explicit findings          regarding the probativeness of the inquiry into the use of "straw          borrowers,"  the  government  stated  that it  was  pursuing  the          inquiry  as   rebuttal  to  D'Andrea's  statement   that  he  had          approximately  $100,000  on  deposit with  Rhode  Island  Central                                         -5-          Credit  Union when the credit  union closed.   The government was          attempting to show that, although D Andrea lost a significant sum          of money because of the failure of the credit union, he also owed          the credit union  millions of dollars, including money from loans          obtained using others' names.                    The  government s line of questioning was probative for          rebuttal purposes and was limited in  nature.  "Rebuttal evidence          may  be introduced to  explain, repel, contradict  or disprove an          adversary's  proof."  United States  v. Laboy, 909  F.2d 581, 588                                _____________     _____          (1st  Cir. 1990).  Moreover, once the government established in a          matter of  five questions that  D'Andrea claimed no  knowledge of          such loans, it moved  on and did  not refer to "straw  borrowers"          again during the course of the trial.  We find  that the district          court did not abuse its discretion.          II.  Sentencing Issues          II.  Sentencing Issues                    A.  Relevant Conduct                    A.  Relevant Conduct                    D'Andrea's  next  claim  of  error  suggests  that  the          district  court's judgment during  sentencing was somehow tainted          by its consideration of the term "straw borrowers":                      D'Andrea's  prominent  role  as  a  major                      borrower   from  [Rhode   Island  Central                      Credit Union] could not have been ignored                      by Judge  Lagueux  in his  assessment  of                      D'Andrea's  culpability,  and it  was his                      involvement  in  the latter  that fatally                      infected the court's judgment in  the New                      England  Federal Savings Bank case. . . .                      D'Andrea  was   not  on  trial   for  his                      activities  involving the  RISDIC-insured                      credit   unions;  and   the  prosecutor's                      questions  [regarding "straw  borrowers"]                      were clearly intended to inflame the jury                      and the court.                                         -6-                                        * * *                         In   considering    the   Government's                      position, Judge  Lagueux noted D'Andrea's                      objections,  but   considered  D'Andrea's                      forgery  of  the  Zarrella  wive's  [sic]                      signatures  on  the  loan   guarantee  as                      "relevant conduct". . . .                         At  the  same  time  the  trial  judge                      assumed  that  the  Zarrellas['] role  in                      _______                      that  transaction was  . .  . fraudulent,                      and   he   made  no   finding   that  the                      Zarrellas, or for that matter, any of the                      other  alleged   "straw  borrowers"  were                      involved  in  a scheme  to  defraud Rhode                      Island   Central   Credit   Union,   were                      unsophisticated   investors,    or   were                      unaware  of  the  obligations  they  were                      incurring . . . .          Appellant's  Brief  at  22-24.   Although  appellant s  brief  is          difficult to  decipher, D'Andrea  appears to object  both to  the          district  court's  consideration  of  D'Andrea's forgery  of  the          Zarellas'   wives'  signatures  and   to  the   district  court's          consideration  of  the  alleged  fraudulent nature  of  the  loan          D'Andrea obtained from Rhode Island Central Credit Union with the          Zarellas.  Both claims lack merit.                    First,   the   district   court's  determination   that          D'Andrea's forgery constituted "relevant conduct" is a finding of          fact,  which we review for clear error.  United States v. Tejada-                                                   _____________    _______          Beltr n, 50  F.3d 105, 109 (1st  Cir. 1995).  For  the sentencing          _______          court  to   consider  uncharged  conduct   at  sentencing,   "the          government must  show a sufficient nexus between  the conduct and          the offense  of conviction by  a preponderance of  the evidence."          United States v. Young, 78 F.3d  758, 763 (1st Cir. 1996).  Under          _____________    _____          the Sentencing Guidelines, "relevant conduct" includes acts "that                                         -7-          were part of the same course of conduct or common  scheme or plan          as the offense of conviction."  U.S.S.G.   1B1.3.  For actions in          the Rhode  Island Central Credit  Union loan acquisition  and the          charged offense to be considered part of a common scheme or plan,          "they must be substantially  connected to each other by  at least          one common  factor, such  as common victims,  common accomplices,          common purpose, or  similar modus operandi."   U.S.S.G.    1B1.3,          Commentary.                    We believe  that the district court  properly concluded          that the use of forgery to obtain the Rhode Island Central Credit          Union loan was  part of  the same  scheme or  plan as  D Andrea s          fraudulent  efforts to obtain the loan  from New England Federal.          D'Andrea  used  proceeds  from  the  fraudulently  obtained  $5.9          million  credit union  loan  to pay  off  portions of  the  first          fraudulently  obtained bank  loan.   This, as the  district court          noted,  amounted to a scheme by which D'Andrea "robb[ed] Peter to          pay  Paul."  Transcript of Sentencing Hearing, September 7, 1995,          at 16.  We cannot find any error here, let alone clear error.                    Second,  the record  offers  some indication  that  the          sentencing court considered D'Andrea's  use of straw borrowers as          part of the fraud  he perpetrated on Rhode Island  Central Credit          Union  to obtain  the  $5.9  million  loan.    To  be  considered          "relevant conduct," the government  must prove D'Andrea's actions          by  a preponderance of the  evidence.  At  trial, D Andrea denied          use of straw borrowers  and nothing in the  pre-sentencing report          supports, by a preponderance of the evidence, the conclusion that                                         -8-          D'Andrea used the Zarellas as straw borrowers.  Although, on this          record,  it does not appear that a  showing by a preponderance of          the evidence  was made by the government regarding D'Andrea's use          of  straw borrowers, we have already determined that the loan was          properly before  the  court as  "relevant conduct"  based on  the          forgery.                    Moreover,  at  the  sentencing  proceeding,  D'Andrea's          trial counsel objected to enhancement of D Andrea s offense level          on the basis of his use of  straw borrowers only as it related to          what he considered triple counting:  use of the loan to calculate          the  measure  of  loss  as  a  result  of  D'Andrea's  fraudulent          activities; use of the loan as "relevant conduct"; and use of the          loan  to determine D'Andrea's role in the offense.2  D'Andrea did                                        ____________________          2  D'Andrea's counsel's objection was stated as follows:                      In addition, your  Honor, it's  counsel's                      opinion  that all  of the  reference with                      respect to the adjustment for the role of                      the offense  of  straw borrowers  in  the                      state  case, cases, is, again, an attempt                      with an increase of  a level 4 to subject                      Mr. D'Andrea to additional punishment for                      something that  has not been  decided.  I                      realize there are  federal cases that say                      in fact  that can be  done.  My  point is                      that it's being  done three times to  him                      on  three  different  levels   for  three                      different  types  of consideration  under                      the  guidelines.   I  don't  think that's                      appropriate.    Certainly  if  the  Court                      finds that it's "relevant conduct" it can                      consider it.   But it considers  it as to                      the  amount  of  the  loan,   as  to  the                      "relevant    conduct",    as    to    his                      participation in the  offense.  It's  all                      the  same   thing.    But  yet   he  gets                      increased   levels   for  that   kind  of                      activity   and   I  don't   think  that's                                         -9-          not object  that the  government  had failed  to prove  uncharged          "straw borrowers" conduct  by a preponderance of  the evidence to          justify its consideration as "relevant conduct," as he appears to          charge here.   Because  D'Andrea did  not preserve this  argument          below, we  review only  for plain  error.   See United  States v.                                                      ___ ______________          Bennett, 60  F.3d 902, 905 (1st Cir. 1995) (rejecting appellant s          _______          argument  raised  for the  first time  on appeal  where different          argument  accompanied  his  objection below);  United  States  v.                                                         ______________          Tutiven, 40 F.3d 1, 7-8 (1st Cir. 1994) (applying plain  error to          _______          sentencing argument that was  not preserved below), cert. denied,                                                              ____________          115 S. Ct. 1391  (1995).  Under  this standard, we  "will reverse          only if the error  'seriously affect[ed] the fundamental fairness          and  basic  integrity of  the  proceedings.'"   United  States v.                                                          ______________          Tuesta-Toro, 29  F.3d  771, 775  (1st Cir.  1994), cert.  denied,          ___________                                        _____________          115 S.  Ct. 947 (1995).    Because  the  $5.9  million  loan  was          properly before the sentencing  court as "relevant conduct" based          on the forgeries alone, the district court's consideration of the          loan based on other factors cannot be plain error.                    B.  Amount of Loss                    B.  Amount of Loss                    D'Andrea  claims error  both in the  sentencing court's          failure to depart downward  for multiple loss causation regarding                                        ____________________                      appropriate. .  . .  So my  suggestion to                      the Court is that although the level with                      respect  to  fraud  is  six   it  can  be                      increased but it should not  be increased                      three   fold   with   respect  to   those                      particular items.          Transcript of Sentencing Hearing, at 13-14.                                         -10-          the amount of  loss to New England Federal  and in the sentencing          court's consideration  of the  Rhode Island Central  Credit Union          loan in calculating overall loss.                                         -11-                      1.  The New England Federal Loan                      1.  The New England Federal Loan                    Regarding  the  New  England  Federal   loan,  D'Andrea          contends that the loss  of $2.2 million3 to New  England Federal,          and  its successor, Resolution Trust  Corporation, had more to do          with the economic climate in which  it later sold the property to          recover  some of  its  loss than  it  had to  do with  D'Andrea's          conduct.  He appears to argue that the district court should have          recognized the  multiple loss causation and  departed downward to          accommodate it.                    We begin by noting that the loss table in section 2F1.1          of the  Sentencing Guidelines "presumes that  the defendant alone          is  responsible for the entire amount of victim loss specified in          the  particular loss  range  selected by  the sentencing  court."          United States v.  Gregorio, 956  F.2d 341, 347  (1st Cir.  1992).          _____________     ________          Commentary to  section 2F1.1 states  that a sentencing  court may          depart downward where it finds the  loss was caused by factors in          addition to the defendant's conduct:                      In a few instances, the total dollar loss                      that   results   from  the   offense  may                      overstate   its    seriousness.      Such                      situations   typically   occur   when   a                      misrepresentation    is     of    limited                      materiality or is  not the sole cause  of                      the loss.  . . .   In  such instances,  a                      downward departure may be warranted.          U.S.S.G.   2F1.1, Commentary.                                        ____________________          3   The amount  of loss  was determined  by subtracting  from the          original $2.88 million loan the amount recovered at  the ultimate          sale  of the  property by  Resolution Trust  Corporation, roughly          $600,000.                                         -12-                    We  lack jurisdiction  to review  the district  court s          decision not to depart downward under the long-standing rule that          "a criminal  defendant cannot ground  an appeal  on a  sentencing          court's discretionary decision not  to depart below the guideline          sentencing range."   United States  v. Pierro, 32  F.3d 611,  619                               _____________     ______          (1st  Cir.  1994),  cert.  denied,  115 S.  Ct. 919  (1995);  see                              _____________                             ___          generally, United States v. Tucker, 892 F.2d 8, 9 (1st Cir. 1989)          _________  _____________    ______          (holding defendant may not appeal a district court s decision not          to depart downward).                      2.  The Rhode Island Central Credit Union Loan                      2.  The Rhode Island Central Credit Union Loan                    D'Andrea's  argument here appears  to suggest  that the          $5.9 million loss was  not foreseeable to him because  he thought          he  was  negotiating a  non-recourse  loan.   At  trial, D'Andrea          contended that he was convinced after discussions with the credit          union's  president, John Lanfredi, that  the loan was  to be non-          recourse and, therefore, the bank could  not pursue the borrowers          for   recourse  in  the  event  of  default.    Because  of  this          misperception, D'Andrea seems  to suggest that he  could not have          foreseen the loss  and thus cannot be held liable  for the amount          of that loss.                    The  record  shows  only  the  following  comment  from          D'Andrea's  counsel   regarding  the  loss  calculation:     "The          defendant contends under Section F1.1(b)(1)(L) that the principal          and actual loss was  1.3 million and no  other factors should  be          considered to  determine the characteristic level."   Addendum to          the  Presentence Report, at 2.  We accordingly find that D'Andrea                                         -13-          failed to  preserve any  foreseeability argument for  appeal, and          review only  for plain error.   Tuesta-Toro, 29 F.3d at  775.  We                                          ___________          discern no such error here.                    C.  Role in the Offense                    C.  Role in the Offense                    D'Andrea argues  that  the sentencing  court  committed          reversible error when it determined, in finding that D'Andrea was          a  "leader" or  "organizer"  under U.S.S.G.  section 3B1.1,  that          D'Andrea's  fraud  included at  least  five  participants or  was          otherwise  extensive.   D'Andrea presents  no caselaw  to support          this proposition.  Typically,  finding an error of this  sort, we          vacate  the  sentence and  remand  to  the sentencing  court  for          resentencing.  See, e.g.,  United States v. Wester, 90  F.3d 592,                         ___  ____   _____________    ______          599-600  (1st  Cir.  1996)  (vacating  appellant's  sentence  and          remanding  case for  resentencing upon  a determination  that the          sentencing  court  had not  made  clear  and legally  supportable          findings that the defendant was a  leader or organizer of a fraud          involving  five  or  more  participants  or  that  was  otherwise          extensive).                    The district court's findings regarding D'Andrea's role          in  the offense are fact-intensive  and we review  them for clear          error.  See United States v.  Rostoff, 53 F.3d 398, 413 (1st Cir.                  ___ _____________     _______          1995).  In  finding that D'Andrea  was a  leader or organizer  of          this fraud, the sentencing court determined the following:                      There's  no  question   that  he  was  an                      organizer or leader  of this  transaction                      and   he   enlisted  two   other  people,                      [Tulman]   and    Lowenstein,   in   this                      transaction.      There's   very   little                      evidence  about  [Tulman]  or  Lowenstein                                         -14-                      that  was  presented  in  this  case  but                      certain[ly] they had to be aware of  some                      of the Defendant's activities in securing                      this fraudulent loan and making all these                      false statements with  the bank.  Paolino                      was in effect a co-conspirator  with him.                      The  evidence is clear  on that.  Paolino                      had  to know  that this  was a  great big                      fraud,  that the real  purchase price for                      the  property  was $2.8  million  and not                      $4.1  million as  stated in  the purchase                      and sale agreement.  . . .  [Pat Paolino]                      did  [D'Andrea's] road running to get all                      the fraudulent tenant letters together to                      fool  the bank.   And  Michael Favicchio,                      another  actor  in   this,  he  was   the                      mortgage broker.  He was the most nervous                      witness  I ever saw on the witness stand.                      Michael Favicchio knew what was going on.                      He wanted  his fee  as a mortgage  broker                      and  so he transmitted  all this material                      that was coming from the Defendant to the                      bank.   He didn't  tell all he  knew from                      the   witness   stand   but   he   was  a                      participant   in   this   fraud   whether                      wittingly or unwittingly.   So there were                      at  least  five   participants  in   this                      particular  fraud  and, of  course, there                      were the  Zarrellas in the  other banking                      fraud  with  Rhode Island  Central Credit                      Union  and  his forgery  of  the Zarrella                      wives' signatures.   So  it  seems to  me                      that the first test is met that he was an                      organizer  or  leader with  five  or more                      participants.   In any  event, it  was an                      otherwise extensive fraud  and there  was                      one other co-conspirator, Paolino, and so                      both prongs of that adjustment are met in                      this case  and  the total  offense  level                      should be increased by four.          Transcript of Sentencing  Hearing, at  18-19.  A  court making  a          four-level role-in-the-offense adjustment under  U.S.S.G. section          3B1.1(a) must first determine "whether the defendant acted as  an          organizer/leader of  a specific  criminal activity.   If  so, the          court  asks  the  separate  question  of  whether  that  criminal          activity  involved  five or  more  participants,  defined in  the                                         -15-          Commentary  as persons  who are  'criminally responsible  for the          commission of  the offense . .  . .'"  United  States v. Preakos,                                                 ______________    _______          907  F.2d  7,  10 (1st  Cir.  1990)  (quoting  U.S.S.G.    3B1.1,          Commentary).  D'Andrea does  not challenge the sentencing court's          initial  finding that he was  an organizer or  leader of criminal          activity.   His  argument focuses  on whether the  district court          properly found five participants in his fraud.                    The record  indicates that  the district court  set out          the  individuals involved  in the  transaction, without  making a          specific  finding that  each was  a "participant."   We  need not          determine,  however, whether  the  court could  have  found by  a          preponderance of the evidence that D'Andrea's fraud involved five          criminally  responsible  "participants."   "Since  the   relevant          language  of subsection[]  (a)  . .  .   is  disjunctive,  either          extensiveness or numerosity is a sufficient predicate for a . . .          four-level upward adjustment."   Rostoff, 53 F.3d at 413.   Thus,                                           _______          we affirm  the district court's determination  of D'Andrea's role          in  the  offense because  it properly  found  that his  fraud was          "otherwise extensive."                    "[A]   determination  that   a  criminal   activity  is          'extensive' within the meaning of section 3B1.1 derives from 'the          totality  of the circumstances, including  not only the number of          participants but also the  width, breadth, scope, complexity, and          duration  of the scheme.'"  Id. at  414 (quoting United States v.                                      ___                  _____________          Dietz,  950 F.2d 50, 53 (1st Cir.  1991)).  The commentary to the          _____          Guidelines provides:   "In  assessing whether an  organization is                                         -16-          'otherwise extensive,' all persons  involved during the course of          the entire  offense are  to be  considered.   Thus, a fraud  that          involved only three participants  but used the unknowing services          of many  outsiders could  be considered  extensive."  U.S.S.G.             3B1.1, Commentary.    Where a  sentencing  court finds  that  the          defendant's  scheme  involved  one other  criminally  responsible          participant,  the "court is free to consider the use of unwitting          outsiders  in  determining  [whether] a  criminal  enterprise  is          'extensive' within  the contemplation of section  3B1.1."  Dietz,                                                                     _____          950 F.2d at 53.  D'Andrea's criminal activity, including relevant          conduct, involved  a  fraud against  two  financial  institutions          whereby  he obtained  loans  for  a  total  of  $8.1  million  by          submitting to those  institutions documents that  contained false          financial information  and the  forged signatures of  tenants and          guarantors.   D'Andrea's  forgeries  of  the tenants   signatures          attested to the accuracy of the financial information supplied to          the  bank, while his forgeries of the Zarellas' wives' signatures          bound  the wives  to  guarantee  a loan  in  the amount  of  $5.9          million.  He  conspired with Frank  Paolino, a participant  under          section  3B1.1, to falsify the actual sale price of the property.          He manipulated  figures involved  in the transaction  to indicate          that  he and  his co-purchasers  were investing  $1.3  million of          their  own money  into the  sale,  when, in  fact, they  were not          investing any  of their own money.   He also used  the witting or          unwitting services  of  Michael Favicchio,  Pat Paolino,  Michael          Tulman, and  Gary  Lowenstein to  secure  the $2.88  million  New                                         -17-          England  Federal loan, and of the four Zarella brothers and their          wives, to  obtain the  $5.9 million  Rhode Island  Central Credit          Union loan.   We find  that the sentencing  court quite  properly          determined that D'Andrea's fraudulent schemes were  extensive and          thus supported a four-level role-in-the-offense enhancement.                    D'Andrea  further argues  that  the sentencing  judge's          determination  that  his   criminal  activities  were   extensive          impermissibly mixes "legitimate loans and  development activities          with isolated instances of criminal conduct."  Absolutely nothing          in the record indicates that the sentencing judge considered  any                                                                        ___          activities,  legitimate or illegitimate,  beyond those related to          the New  England Federal and  Rhode Island  Central Credit  Union          loans.   This argument, unsupported by the record, does not alter          our finding of no error  in the sentencing court's  extensiveness          determination.                    D.  Obstruction of Justice                    D.  Obstruction of Justice                    The  sentencing court enhanced  D'Andrea's base offense          level by  two points  for obstruction  of justice  under U.S.S.G.            3C1.1.  Under that section, the sentencing court must  increase          the offense level by two "[i]f the defendant willfully obstructed          or   impeded,   or  attempted   to   obstruct   or  impede,   the          administration  of justice during the investigation, prosecution,          or sentencing of  the instant offense . . . ."  U.S.S.G.   3C1.1.          Perjury  falls within the scope  of obstruction of  justice.  See                                                                        ___          U.S.S.G.   3C1.1,  Commentary.  The  sentencing court found  that                                         -18-          D'Andrea committed perjury on  four separate occasions during the          trial:                      I  conclude  that  two points  should  be                      added for obstruction of  justice because                      the  Defendant  committed perjury  during                      this  trial.   He committed  perjury time                      and time again.  His main approach to his                      testimony  was  to  lie about  everything                      until he was  backed up against  the wall                      and then he admitted the  truth, admitted                      forgery,  but  then tried  to rationalize                      them.   I  can think  of  four  instances                      where he committed perjury.  He committed                      perjury concerning his lack  of knowledge                      of the  amount of  money that was  in the                      tenant letters.  He denied  forging some,                      admitted  forging others.  He forged them                      all.   He  committed perjury  by claiming                      that there was another purchase  and sale                      agreement  that didn't have the words 'as                      is' in it.  Such document was never found                      or presented.  He  was just lying through                      his teeth.   There was no  such document.                      He lied about his conversation with Patty                      El[der].      What  Patty   El[der]  said                      concerning the amount  of money that  had                      to be available at  closing.  And he lied                      about  the  work  credits.    That  was a                      substantial   part  of  the  fraud.    He                      claimed that there  were legitimate  work                      credits  taken off the  purchase price to                      get it  down to  two million eight.   The                      figures didn't even add up.          Transcript of Sentencing Hearing, at 20.                    A  determination  of  perjury  must  be  based  on  the          traditional perjury  test as explained  by the  Supreme Court  in          United States v. Dunnigan, 507 U.S. 87 (1993).  Dunnigan requires          _____________    ________                       ________          a finding that "[a] witness testifying under  oath or affirmation          . . .  [gave] false testimony  concerning a material  matter with          the willful intent to  provide false testimony, rather than  as a          result of confusion,  mistake, or faulty memory."   Dunnigan, 507                                                              ________                                         -19-          U.S. at 94.   Here, the  court found at  least four instances  of          perjury, "but  any one is  sufficient" to uphold  the adjustment.          See United States v. Webster, 54 F.3d 1, 8 (1st Cir. 1995).          ___ _____________    _______                    The  matters regarding which  the court  found D Andrea          offered  false  testimony  were  material  because  they  concern          D'Andrea's specific intent to  commit fraud, an element the  jury          must  have found  to support  a guilty  verdict.   The sentencing          court's  findings of perjury cannot be overturned unless they are          clearly erroneous.  United States v. Tracy, 36 F.3d 199, 202 (1st                              _____________    _____          Cir.), cert. denied, 115 S. Ct. 609 (1994).                 ____________                      Even  if the  record, read  generously to                      appellant, might conceivably support some                      less damning  scenario -- and  we do  not                      suggest  that  it  can --  we  would  not                      meddle.   Our review  is  only for  clear                      error -- and  "where there  is more  than                      one plausible view of  the circumstances,                      the   sentencing  court's   choice  among                      supportable   alternatives    cannot   be                      clearly erroneous."          Tejada-Beltr n,  50 F.3d at 110.  Here, there was ample evidence,          ______________          considering only D'Andrea's false testimony regarding his forgery          of  both  tenant  and  guarantor  signatures,  to  find  that  he          willfully  obstructed  justice.    On  more  than  one  occasion,          D'Andrea testified  on direct examination that  he had permission          to sign a tenant or guarantor signature, only to be caught in his          lie  on cross-examination and to be forced to acknowledge that he          indeed committed  forgery without the permission  or knowledge of          the  pertinent "signatory."   The  sentencing court  could easily          have  found  that such  direct testimony  was  not the  result of          confusion, mistake,  or faulty  memory.   This single finding  of                                         -20-          perjury   is  sufficient   to  uphold   the  sentencing   court's          obstruction of justice enhancement.   We further note in passing,          that support for the sentencing court's other findings of perjury          exist in the record and preclude a finding that they were clearly          erroneous.  See id.                      ___ ___                                         -21-                    E.  Restitution Order                    E.  Restitution Order                    D'Andrea implores  us to vacate the  sentencing court's          imposition  of $2.2 million restitution to  be paid to Resolution          Trust  Corporation, the  successor to  New England  Federal.   He          contends that such action  is warranted because "[r]estitution in          the  amount ordered by [J]udge Lagueux is, as a practical matter,          virtually  impossible  of fulfillment,  regardless  of D'Andrea's          post-imprisonment  earning  capacity,  and  his  sentence  should          reflect  that reality."   Appellant's  Brief at  43.   D'Andrea's          argument,  then,  is  that  the restitution  order  cannot  stand          because  the  sentencing  court  failed  to  properly  take  into          consideration  his ability to pay such an amount.  The sentencing          court found the following:                      On  all these supervised  release terms I                      impose  a  condition  that the  Defendant                      make restitution to the  Resolution Trust                      Corporation   in   the  amount   of  $2.2                      million.    I  realize   that's  probably                      unrealistic.      I   realize  that   the                      Defendant   probably   will  never   earn                      anything close to that in the future when                      he comes out  of prison.  But  I want him                      to be  aware that he has  that obligation                      and that any earnings that he makes  will                      go toward restitution.          Transcript of Sentencing Hearing, at 32.                    "In  fashioning  a  restitution  order,  a  court  must          consider 'the  amount of the  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.'"  United  States v. Newman, 49 F.3d 1, 10 (1st Cir.                          ______________    ______                                         -22-          1995) (quoting 18 U.S.C.   3664(a) (1988)).  The sentencing court          is  not required to base its determination  on a finding that the          defendant  has  the  ability  to  repay  the  ordered  amount  of          restitution.   United States v.  Royal, 100 F.3d  1019, 1033 (1st                         _____________     _____          Cir. 1996).   Instead, there must only be an  indication that the          sentencing  court considered  D'Andrea's  financial situation  in          arriving  at its  figure.   Id.    The record  here  sufficiently                                      ___          supports the conclusion that  the sentencing court considered all          of the relevant factors in making its determination.  That is all          that is required.                    Moreover,  should  this  restitution  order   prove  so          unreasonably onerous that D'Andrea is clearly unable to  meet his          responsibilities, he  may move  the district  court to modify  it          pursuant to 18 U.S.C.   3663(g).          III.  Judicial Misconduct          III.  Judicial Misconduct                    D'Andrea   peppers  the   "Argument"  section   of  his          appellate brief with allegationsof judicial bias and misconduct.4                                        ____________________          4    Appellant's  bald   assertions  of  misconduct  include  the          following:          --   "D'Andrea's prominent role  as a major  borrower from [Rhode          Island Central Credit Union] could not have been ignored by Judge          Lagueux  in his assessment of D'Andrea's  culpability, and it was          his involvement in  the latter that fatally infected  the court's          judgment  in the New England Federal Savings Bank case."  (citing          to a  newspaper  article  in  the March  6,  1996  issue  of  the          Providence Sunday Journal).  Appellant's Brief, at 22.          --  "Given the  depressed economic climate and hostile  political          atmosphere prevailing  in Rhode Island  since 1991, and  the fact          that Rhode Islanders will be repaying the losses . .  . well into          the  21st  Century,  it  is unsurprising  that  heavy  borrowers,          including D'Andrea would  be demonized, both in the  public mind,          and  as political scapegoats.  Judge Lagueux also appears to have                                         -23-                    An inquiry  into the  judge's conduct  of the                    trial  necessarily turns  on the  question of                    whether  the  complaining   party  can   show                    serious prejudice.  . . .   In answering this                    question a reviewing  court must evaluate the                    judge's  actions 'according to  a standard of                    fairness  and impartiality,  recognizing that                    each case  tends to be fact-specific.'  . . .                    This process requires the reviewing  court to                    differentiate    between    expressions    of                    impatience,  annoyance  or  ire, on  the  one                    hand, and bias or partiality, on the other.                                        ____________________          been  infected by the clamor,  and that his  sentence reflected a          willingness to  punish D'Andrea  for his involvement  with [Rhode          Island Central Credit Union],  on a dubious theory of  liability,          without specific proof of fraud or conspiracy presented."  Id. at                                                                     ___          26.          --  "Moreover,  [Rhode Island Central Credit Union],  a privately          insured financial institution,  subject to weak  state regulation          and  political intrigue  with  the Rhode  Island Legislature  and          Statehouse  makes a weak case  on which the  Government can rely.          Absent   proof   he   violated   specific   prohibitions,   moral          condemnation is  not enough to sustain D'Andrea's punishment. . .          .  This  distinction was apparently lost on Judge Lagueux, and he          regarded the [Rhode Island Central Credit Union] and [New England          Federal] transactions  as correlatives  both in time  and intent.          Given the limited  information the judge had before  him, linking          the two  together  in his  own  mind in  order  to quadruple  the          punishment meted out to D'Andrea strongly suggests that the prior          publicity about  RISDIC and  [Rhode Island Central  Credit Union]          had an effect."  Id. at 30.                           ___          --  "A fair  reading of the sentencing hearing  transcript yields          but one conclusion, that Judge Lagueux's  comments from the bench          say  more about  what he  thought D'Andrea  stood for  than about          conduct for which D'Andrea bears legitimate responsibility."  Id.                                                                        ___          at 35-36.          --   "Judge Lagueux determined that  virtually every disagreement          between D'Andrea's  testimony  and  the  testimony  of  witnesses          against him  was perjurious.   Those findings were  entirely one-          sided and  unfair. . .  .   The entire tenor  of Judge  Lagueux's          comment showed his predisposition to discount everything D'Andrea          said,  regardless  of the  probability that  one  or more  of the          Government's witnesses was not telling the entire truth."  Id. at                                                                     ___          39-41.                                         -24-          Logue v. Dore, No. 96-1143, 1197 WL 2447, at *4 (1st Cir. Jan. 8,          _____    ____          1997)  (quoting United States v.  Polito, 856 F.2d  414, 418 (1st                          _____________     ______          Cir. 1998)) (citations omitted).                    D'Andrea points to nothing in the record to support his          allegations,  nor  does  he  demonstrate any  prejudice.    After          painstakingly poring  over nearly 1,450 pages  of transcript from          both  the  trial and  sentencing hearing,  we  are left  with the          unmistakable  conclusion that Judge  Lagueux did not  engage in a          single act of "impatience,  annoyance or ire," let alone  bias or          misconduct.  D'Andrea's allegations are meritless.                                      CONCLUSION                                      CONCLUSION                    Based on  the foregoing considerations,  we affirm  the                                                                affirm          district court's rulings.                                         -25-
