
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2044                                    UNITED STATES,                                      Appellee,                                          v.                                   ROBERT O'CONNOR,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                                 ____________________            Deirdre Lee Thurber for appellant.            ___________________            William P.  Stimson, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                    June 22, 1994                                 ____________________                      BOWNES,  Senior  Circuit Judge.    Defendant Robert                      BOWNES,  Senior  Circuit Judge.                               _____________________            O'Connor  and  three others  were  indicted  on eight  counts            charging  violations of  18  U.S.C.    1343  (fraud by  wire,            radio,  or television) and 18  U.S.C.   2  (Principals).  The            indictment alleged that the defendants and others had devised            a  scheme to  defraud  and obtain  money by  false pretenses,            representations,  and promises, and had  made or caused to be            made wire  transmissions in  interstate commerce in  order to            carry out the fraud.                      The  three other  defendants  pled guilty  prior to            trial.  Defendant opted for trial and was found guilty on all            eight counts by a jury.  This appeal followed.1                                      THE SCHEME                                      THE SCHEME                                      __________                      In  order  to understand  the  issues  on appeal  a            description  of the  scheme  to defraud  is  necessary.   The            progenitors of the  fraud were two real estate brokers, Barry            and Diana Tevrow.   Its  purpose was to  secure financing  so            individuals  could purchase  residential real  estate without            the necessity of making  down payments.  To  effectuate this,            the  Tevrows   engineered   successive  purchase   and   sale            transactions of  residential properties so as  to inflate the            ultimate purchase  prices.  Lenders would then  be induced to            advance loans for substantially more than the properties were            actually worth.  In order for the scheme to work, the Tevrows                                            ____________________            1.  Appellate counsel for defendant was not trial counsel.                                         -2-                                          2            had to persuade the buyer(s) to give false information on the            loan  application(s) anent  their  income and  assets.   This            required that  the Tevrows falsify documents,  such as income            tax  withholding statements  and bank statements,  to support            the false loan application.                      Defendant became part of  the scheme because he was            an experienced  real  estate  appraiser.   His  role  was  to            appraise  the  subject  property  at  an  amount  that  would            convince the lender that the property had sufficient value as            collateral  to  secure  the loan.    Defendant  met with  the            Tevrows  and they explained their scheme to him, which was to            buy  the property in the  first instance through  a straw and            then  immediately  resell  it  at  an  inflated  price.   The            inflated price was determined by  adding to the initial price            the  following amounts:  (1) $35,000; (2)  any amount of cash            up to $15,000 that  the final purchaser wanted to  receive at            the closing; plus (3) 20% of (1) and (2).2                       Defendant   was  told   that  he  had   to  prepare            appraisals that would "come in" at the price determined under            the  formula.   It was  agreed that  defendant would  be paid            $1,000 for every successful closing  in addition to his usual            fee of $250-300  for the  appraisal.  Defendant  was paid  in                                            ____________________            2.  We note  the  obvious,  that  the success  of  the  fraud            depended upon the Tevrows'  obtaining buyers who were willing            to submit false loan applications.                                         -3-                                          3            cash  or  by  money order;  at  times  defendant's "cut"  was            deposited directly into his bank account.                      Defendant's  experience  as  an appraiser  did  not            extend to the North Shore area of Massachusetts.  He overcame            this  deficiency by using Diana Tevrow, who was not a trained            appraiser,  to  help  him.    She  obtained  a listing  sheet            prepared by  the Multiple  Listing Service for  each property            that  was  to  be used.    The  listing  sheet described  the            property and gave the  seller's offering price.  Tevrow  also            obtained a "field card" describing the property from the city            hall in the locality  in which the property was  located. She            took photos of the outside of  the house and made a sketch of            its interior.  Tevrow had the further assignment of selecting            "comparable  sales"  properties.    This   entailed  choosing            recently sold properties whose sales prices could be  used as            benchmarks  to help establish the value of the property to be            used in the  fraud scheme.  Tevrow  was told by defendant  to            select "comparable  sales properties" solely on  the basis of            price and not to  worry about whether the properties  were in            fact comparable in location,  appearance, structure, and size            to  the subject  property.   According  to Tevrow,  defendant            changed  the  description of  the  subject  property and  the            "comparable sales"  properties so that it  appeared that they            were similar.                                         -4-                                          4                      No issue has been  raised as to the  sufficiency of            the evidence.   There  are only  two issues on  appeal:   the            giving of a willful blindness instruction and sentencing.                                    WILLFUL BLINDNESS                                  WILLFUL BLINDNESS                                  _________________                      Defendant makes three  claims on willful blindness.            His  first is that the  "silence of the  record regarding the            Court's decision to charge willful blindness requires vacatur            and remand."  Defendant  is claiming that there is  no record            showing that the district  court complied with Fed.  R. Crim.            P. 303 by notifying defendant of its proposed action upon the                                            ____________________            3.  Rule 30.  Instructions                Rule 30.  Instructions                        At the close of the evidence or at such                      earlier  time  during  the trial  as  the                      court reasonably directs,  any party  may                      file  written  requests  that  the  court                      instruct the jury on the law as set forth                      in the requests.  At the same time copies                      of  such requests  shall be  furnished to                      all  parties.    The court  shall  inform                                       ________________________                      counsel  of its proposed  action upon the                      _________________________________________                      requests  prior to their arguments to the                      _________________________________________                      jury.   The court  may instruct  the jury                      _____                      before   or   after  the   arguments  are                      completed or at both times.  No party may                      assign as error any portion of the charge                      or omission therefrom  unless that  party                      objects thereto before  the jury  retires                      to   consider    its   verdict,   stating                      distinctly the matter to which that party                      objects and the grounds of the objection.                      Opportunity  shall be  given to  make the                      objection out of the hearing of the jury,                      and on  request of any party,  out of the                      presence of the jury.              (Emphasis ours.)                                         -5-                                          5            requests for instructions,  specifically the  one on  willful            blindness, prior to the parties' arguments to the jury.                      This claim  is decisively rejected  by the  record.            There was a jury charge conference on March 9, two days prior            to the  submission of the case to  the jury on March  11.  At            the conference a willful  blindness instruction was discussed            at length by the court and the parties.  The discussion ended            by the court informing the prosecutor that defendant objected            to  the  willful blindness  instruction  as  proposed by  the            court.  Then followed this colloquy between the court and the            prosecutor:                         MR. POVICH:   Well,  at this point  in                      time I am not going  -- I'm not going  to                      fight  his  objection, but  I  reserve my                      right depending on how things go.                         THE  COURT:  All right.  . . .    I'll                      tell you  what I'll do  with it.   If  he                      puts on a case that causes you to want to                      request  it, you'll let  me know before I                      charge  the jury  and  also  give me  the                      substitute  language, either  reinstating                      what  I  now have  or  whatever different                      language you want.                      On the next day, March 10, the court gave counsel a            copy  of  its proposed  jury  charge.    The proposed  charge            contained the same willful blindness instruction given to the            jury  the next  day.   The docket  notes for  March 11  show:            "Colloquy re: draft of instructions  on willful blindness.  D            objects  to giving instruction but not  to the specific form.                                         -6-                                          6            Jury brought  in.  Govt  & D present closing.   Court charges            the jury."                      The record  establishes:  that  a willful blindness            instruction was  discussed at  the jury charge  conference on            March 9; that a draft of the court's jury charge containing a            willful  blindness  instruction   was  given  to  defendant's            counsel  on March 10; and  that on March  11, defense counsel            objected,  prior to  final  argument, to  giving the  willful            blindness instruction  but not to  its specific form.   There            was  no violation by the district court of the requirement of            Fed. R. Crim. P.  30 that, "[t]he court shall  inform counsel            of  its proposed  action  upon the  requests  prior to  their            arguments to the jury."                      Before    getting   to    defendant's   substantive            objections  to  the willful  blindness instruction,  we first            consider the  government's claim that a  proper objection was            not made,  as required by Fed. R. Crim. P. 30, to the willful            blindness instruction  after the charge was  given and before            the  jury retired  for deliberations.   At  the close  of his            instructions  the court asked if there were any objections to            the charge.  The following colloquy then took place:                         MR.   McMAHON:      Your  Honor,   the                      defendant is satisfied with the exception                      of  the willful blindness  charge and his                      objections have been duly recorded in two                      of my memorandums.                         THE COURT:   Well, you're required  to                      make them again now after it's given.                                         -7-                                          7                         MR. McMAHON:  I'm making them now.                         THE   COURT:       All  right.    That                      objection is overruled.                      Rule 30 explicitly states in pertinent part:                      No party may assign as  error any portion                      of  the  charge  or   omission  therefrom                      unless that party objects  thereto before                      the jury retires to consider its verdict,                      stating  distinctly  the matter  to which                      that party objects and the grounds of the                      objection.            Despite being warned  by the court,  defense counsel did  not            state the grounds  of the objection.   The case  law in  this            circuit  requires strict  compliance  with the  words of  the            Rule:                      As we have repeatedly held, Fed.R.Crim.P.                      30 means  what it says.  A  party may not                      claim error in the judge's charge to  the                      jury  unless  that party  "objects" after                      the judge gives the charge but before the                      "jury retires," and,  when objecting  the                      party must  "stat[e] . . . distinctly the                      matter  to which  that party  objects and                      the grounds of that objection."            United  States v. Wilkinson, 926 F.2d 22, 26 (1st Cir. 1991).            ______________    _________            That the grounds for the objection were filed in writing with            the court prior to the time the charge was given, matters not            a  whit.  See United States v.  Coady, 809 F.2d 119, 123 (1st                      ___ _____________     _____            Cir. 1987).  In a recent civil case, Poulin v. Greer, 18 F.3d                                                 ______    _____            979,  982  (1st  Cir.  1994),  we  discussed  at  length  the            consequences of failing to  follow the strictures of  Fed. R.            Civ. P.  51, which is identical to  Fed. R. Crim. P.  30.  We            pointed  out   that  failure  to  object   after  the  charge                                         -8-                                          8            "constitutes  waiver of the objection."   Id.   We also noted                                                      ___            that the  rule was binding on both the court and attorney and            that  a  statement  by  the court  "'after  the  charge  that            objections  made prior to it  will be saved  does not absolve            the  attorney from  following the  strictures of  the rule.'"            Id.(quotingMcGrath v.Spirito,733 F.2d967, 969(1stCir. 1984)).            ___        _______   _______                      The failure  of defendant to follow  the command of            Rule  30 means  that our  review is  limited to  plain error.            Poulin, 18 F.3d at 982; United States v. Latorre, 922 F.2d 1,            ______                  _____________    _______            10 (1st Cir.  1990).   Defendant took the  position at  trial            that he was "never told what  was going on with this scheme."            He further  testified that  he believed the  information that            was provided him about the properties was true.  Such a claim            cries out for a willful  blindness instruction, when there is            evidence to  the contrary, as  there was  in abundance  here.            See infra at 3-4.            ___ _____                      The trial  court  may instruct  the  jury                      concerning   willful  blindness   when  a                      defendant claims a lack of knowledge, the                      facts support an inference of defendant's                      conscious course of deliberate ignorance,                      and  the instruction,  taken as  a whole,                      cannot be  misunderstood  by a  juror  as                      mandating the inference of knowledge.            United States v. Brandon,  17 F.3d 409, 452 (1st  Cir. 1994);            _____________    _______            United States v.  Jones, 10  F.3d 901, 906  (1st Cir.  1993).            _____________     _____            Viewed in the perspective of plain error, we find that it was            not plain error  to give a willful blindness  instruction and            that the form of the instruction was not plainly erroneous.                                         -9-                                          9                                      SENTENCING                                      SENTENCING                                      __________                      After  a  lengthy  sentencing  hearing   the  court            allowed  a  two-level  decrease  under  U.S.S.G     3B1.2(b),            finding  that  defendant  was  a  minor  participant  in  the            offense.  This was not recommended in the presentence report.            Defendant's adjusted offense level was 19.  Because he was in            Criminal  History Category  I,  the  applicable  imprisonment            range was 30 to  37 months with a supervised release range of            24 to 36 months.  The fine range was $6,000 to $60,000.   The            maximum restitution  figure was $1,266,883.75.   The  special            assessment was $50  for each of the eight counts  for a total            sum of $400.00.                      The sentence given was:  30 months imprisonment; 24            months  of   supervised  release;   no  fine   was  assessed;            restitution  in the  amount  of $40,000  was  ordered, and  a            special assessment of $400 was levied.  Defendant claims that            the sentence was incorrectly calculated for two reasons:  the            court  failed  to consider  U.S.S.G.     1B1.3(a)(1); and  it            failed to allow a downward departure  under U.S.S.G.   2F1.1.            We find  that defendant's sentencing error  claims are barred            for procedural reasons.                      We  start  with  the  court's  alleged  failure  to            consider U.S.S.G.   1B1.3(a)(1).  This guideline provides:                       (B)  in  the  case   of  a   jointly                           undertaken criminal activity (a                           criminal      plan,     scheme,                           endeavor,     or     enterprise                                         -10-                                          10                           undertaken by  the defendant in                           concert with others, whether or                           not  charged as  a conspiracy),                           all reasonably foreseeable acts                           and  omissions   of  others  in                           furtherance   of  the   jointly                           undertaken criminal activity,                      that  occurred  during the  commission of                      the offense of conviction, in preparation                      for  that offense,  or in  the course  of                      attempting   to    avoid   detection   or                      responsibility for that offense;            Defendant   argues   that  in   sentencing,  as   opposed  to            determining   conviction,   a  co-conspirator   defendant  is            responsible  only  for  those  acts  which  were   reasonably            foreseeable by him.  This is undoubtedly correct.  See United                                                               ___ ______            States v. Balogun,  989 F.2d 20, 22 (1st Cir.  1993).  And it            ______    _______            is  clear that the district court did not consider U.S.S.G.              1B1.3(1)(B) in  sentencing defendant.   But it is  also clear            that  the court was never asked to consider this guideline at            the sentencing hearing or prior to it.                      The initial presentence report determined  the loss            due to  charged conduct  to be  $1,061,264.00.   The  revised            presentence  report, made  in response  to objections  by the            government, included  losses due  to uncharged  conduct which            increased the loss to $1,266,883.75.   There was no objection            by defendant  to the  original  presentence report.   At  the            sentencing hearing defense counsel was  asked by the court if            he  had  any  objections  to  the  proposed  revision of  the            presentence  report.  His response was:  "No, your Honor, not                                         -11-                                          11            from  the defendant."    We  have  read  the  record  of  the            sentencing hearing carefully; defense counsel never mentioned            or alluded to U.S.S.G.   1B1.3(1)(B).                      "We  do  not review  sentencing  guideline disputes            which were not preserved before  the district court."  United                                                                   ______            States  v. Shattuck,  961  F.2d 1012,  1015 (1st  Cir. 1992).            ______     ________            "Time and again we have held that facts stated in presentence            reports are deemed admitted if they are not challenged in the            district court."   United States  v. Bregnard, 951  F.2d 457,                               _____________     ________            460 (1st Cir.  1991); see  also United States  v. Dietz,  940                                  ___  ____ _____________     _____            F.2d 50, 55 (1st Cir. 1991).                        There are,  therefore, no appealable grounds for us            to  consider  the  application  of  U.S.S.G.     1B1.3(a)(1).            Defendant  relies  on Balogun  for  his  contention that  the                                  _______            sentence  be remanded for the district  court to consider the            guideline.   But Balogun makes  it evident that the defendant                             _______            in that  case  raised the  question of  the applicability  of            U.S.S.G.   1B1.3(a)(1) in  the district court.  Balogun,  989                                                            _______            F.2d at 22.                      Defendant fares no better  on his argument that the            court should  have departed  downward under the  authority of            U.S.S.G.   2F1.1, Commentary 10, which provides:                      In  a few instances,  the loss determined                      under subsection (b)(1) may overstate the                      seriousness  of the  offense.   This  may                      occur,  for  example  where  a  defendant                      attempted to negotiate an instrument that                      was so  obviously fraudulent that  no one                                         -12-                                          12                      would seriously consider honoring it.  In                      such cases,  a downward departure  may be                      warranted.                      We will  assume that by referring  to United States                                                            _____________            v.  Gregorio, 956 F.2d 341  (1st Cir. 1992),  which refers to                ________            U.S.S.G.    2F1.1 at  pages 344-45, defendant  preserved this            issue  for appeal.  We note that after referring to Gregorio,                                                                ________            defense  counsel  apparently shifted  gears  to  argue for  a            downward departure under U.S.S.G.   5K2.0.                        The  court  made  it  abundantly  clear during  the            sentencing  hearing that it was  fully aware of  its power to            depart downward  on the amount of  loss but would not  do so.            In  fact, the  court  discussed the  applicability of  United                                                                   ______            States  v.  Rivera,  994  F.2d  942  (1st  Cir.  1993), which            ______      ______            discusses at length the power of the district court to impose            a  sentence  that  departs  from the  sentencing  guidelines.            Under such a scenario we have no jurisdiction to consider the            court's  refusal  to depart  downward  (or  upward).   United                                                                   ______            States v. LeBlanc, No. 93-1847, slip op. at 18 (1st Cir.  May            ______    _______            24, 1994) (as a  general rule decision not  to depart is  not            appealable);  United States v. Gifford, 17 F.3d 462, 473 (1st                          _____________    _______            Cir.  1994) (no  appeal from  district court's  discretionary            decision  not to  depart from  guidelines); United  States v.                                                        ______________            Sepulveda, 15 F.3d  1161, 1202 (1st Cir.  1993) (a sentencing            _________            judge's informed  decision not to depart  is a non-appealable            event).                                         -13-                                          13                      The judgment below is Affirmed.                                            Affirmed.                                            _________                                         -14-                                          14
