
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2073                                    UNITED STATES,                                      Appellee,                                          v.                                 JOSEPH N. CASSIERE,                                Defendant, Appellant.                                      __________        No. 92-2074                                    UNITED STATES,                                      Appellee,                                          v.                                  JANET M. PEZZULL0,                                Defendant, Appellant.                                      __________        No. 92-2182                                    UNITED STATES,                                      Appellee,                                          v.                                    JANET DOLBER,                                Defendant, Appellant.                                _____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                          Friedman,*  Senior Circuit Judge,                                      ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Robert  B.  Mann  with whom  Mann  &  Mitchell was  on  brief  for            ________________             _________________        appellant Joseph Cassiere.            John A. MacFadyen for appellant Janet M. Pezzullo.            _________________            Kenneth  J. Fishman  with whom  Peter Charles Horstmann,  Susan J.            ___________________             _______________________   ________        Naughton and Bailey,  Fishman &  Leonard were on  brief for  appellant        ________     ___________________________        Janet Dolber.            Margaret R.  Hinkle,  Special  Assistant United  States  Attorney,            ___________________        with whom A. John Pappalardo, United States Attorney, was on brief for                  __________________        appellee.                                 ____________________                                  September 16, 1993                                 ____________________        _____________________        *Of the Federal Circuit, sitting by designation.          Friedman, Senior Circuit Judge.                    ____________________                       In these  consolidated appeals  the three  defendants          challenge  their  convictions of  wire  fraud  and conspiracy  to          commit  that offense on various  grounds.  The  fraud involved an          intricate and sophisticated scheme involving a technique known as          a  "land flip," under which real  property is purchased for a low          price, immediately  resold at a much  higher price to  a straw or          fictitious  buyer, and  the higher  resale price  is used  as the          basis  for obtaining  a mortgage  loan that  finances the  entire          transaction.  One of the defendants also challenges her sentence.          We affirm.                                          I.                       A jury in the  United States District  Court for  the          District of Massachusetts convicted  the defendants Cassiere  and          Pezzullo  of fifteen counts of wire fraud and aiding and abetting          wire fraud, and the  defendant Dolber of thirteen counts  of that          crime (it acquitted her on one count), in violation  of 18 U.S.C.             1343  (1988),  and  all  three  defendants  of  one  count  of          conspiracy to commit wire fraud, in  violation of 18 U.S.C.   371          (1988).   The  district  court sentenced  Cassiere  to 46  months          imprisonment,  followed by  five  years  of  supervised  release,          Pezzullo to 24  months imprisonment, followed  by three years  of          supervised  release,  and  Dolber   to  39  months  imprisonment,          followed by  three years of  supervised release.   Each defendant          also was ordered to make restitution.                                         -3-                                          3                       The  substantive   crimes   for   which   the   three          defendants  were  convicted  involved their  participation  in  a          scheme to  defraud  six  mortgage  lenders through  a  series  of          fifteen land flips, in all but one of  which the two sales of the          property  were  closed  on  the   same  day,  often  the   second          immediately following the first.  Cassiere was the senior partner          of  Pezzullo  in  a two-person  law  firm  that  handled all  the          closings in the land flip transactions.  Dolber was a real estate          appraiser, whose appraisals  of the properties were  relied on by          the mortgage lenders in making their loans.                       Rate Line  was a  mortgage broker which,  for a  fee,          took  loan applications  and  referred them  to lenders.   Thomas          DeNunzio  owned Rate Line, and  he and his  employee loan broker,          Glenn  Monteiro, controlled  Rate  Line.   DeNunzio and  Monteiro          planned and organized the  fraudulent scheme, under which one  of          three straw corporations they controlled (Half  & Half, Inc., ZBA          Corp.  and Chantel, Inc.)  purchased foreclosed property for cash          and resold the property on the same day to straw buyers at a much          higher price.   Mortgage  loan  funds received  from the  lending          institutions were used to pay  the corporation controlled by Rate          Line  and that  corporation then  paid for  the first sale.   The          balance  then went  to DeNunzio  and Monteiro,  channeled through          Rate Line.                         DeNunzio  and  Monteiro  pleaded  guilty  to  another          indictment  and  they both  testified for  the government  in the          present  case.  They described in detail how the scheme operated,                                         -4-                                          4          the roles Cassiere,  Pezzullo, and Dolber  played in the  scheme,          andDeNunzio's andMonteiro's relationshipwith thethree defendants.                       An  example of  the  operation of  the scheme  was as          follows:                       On April  12, 1991,  Half &  Half Corporation  closed          the  purchase  of  property at  104  Menlo  Street  for $102,900.          Moments later Half & Half closed the sale of the property to Fred          Strangis,  one of  the dummy  purchasers,  for $228,000.   Dolber          previously had appraised the property at $228,000.  Based on this          appraisal and Strangis' certification that he would reside at 104          Menlo  Street,  Rate  Line  gave  Strangis  a  mortgage  loan  of          $182,400, which was eighty percent of the final sale price.  Rate          Line,  in  turn, sold  Strangis'  mortgage  to CenTrust  Mortgage          Corporation.  Neither Half  and Half nor Strangis brought  a down          payment to  the double  closing.   Instead,  Monteiro provided  a          cashier's check for the twenty percent down payment ($45,600) the          lender required the purchaser to make.                       Cassiere  and   Pezzullo  recorded  both  deeds   and          disbursed the funds they had received from the lender.  They paid          the original owner  the $102,900 owed  by Half & Half,  they paid          the  closing costs, including attorneys' fees  due them, and gave          the balance to Monteiro and DeNunzio.                        Cassiere,  assisted  by  Pezzullo,  was  the  closing          attorney  in each of the  double closings.   They represented the          interests of the lending  institution that was providing, through          Rate Line,  the mortgage loan  to the final  buyer.  The  closing                                         -5-                                          5          attorney serves as "the eyes and ears" of the lending institution          at the closing.  The lenders expected the attorneys to alert them          to anything unusual.  Neither Cassiere nor Pezzullo  notified any          of  the six lenders that their law  firm was closing twice on the          same property on the same day at  substantially different prices.          Dolber  was the real estate  appraiser in thirteen  of the flips.          The lending  institutions relied  on her appraisals  to determine          the  value of the properties  upon which they  were making loans.          The appraisal alerts the lenders  to the property's condition and          allows them to determine their ability to recoup their investment          should the borrower default on the mortgage.                                      The lenders  generally made  loans of  the lesser  of          eighty percent  of the  sale price  or fair  market value of  the          property.   The six  lenders made  mortgage loans  totalling more          than  $2.6 million on the properties that were the subject of the          land flips involved in this case.                       Ten of  the thirteen  appraisals Dolber  made of  the          properties  involved  in  the  land  flips  were  for  an  amount          identical  to the final sale price, which ranged from $160,000 to          $231,000.  (The  original sale prices of  those properties ranged          from $42,000 to  $132,000.)   Two of the  three other  appraisals          were for $1,000 higher than the second  sale price; the third was          for $2,000 higher.                             II. Sufficiency of the Evidence                       Pezzullo and  Dolber, but not Cassiere, challenge the          sufficiency of the evidence to support their convictions.                                          -6-                                          6                       In  reviewing the  record  in such  a  challenge,  we          "look[]  to  the  evidence   as  a  whole,  including  reasonable          inferences  drawn from  it, in  the light  most favorable  to the          verdict, to determine whether a rational trier of fact could have          found  the defendant guilty  beyond a reasonable  doubt."  United                                                                     ______          States  v. Plummer, 964 F.2d 1251, 1254 (1st Cir.), cert. denied,          __________________                                  ____________          113 S. Ct. 350 (1992).  "We do not weigh witness credibility, but          resolve  all credibility  issues in  favor of  the verdict.   The          evidence  may be  entirely  circumstantial and  need not  exclude          every reasonable hypothesis of innocence; that is, the factfinder          may decide  among  reasonable interpretations  of the  evidence."          United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)          ________________________________          (citations  omitted).    Thus  viewed, the  record  supports  the          convictions.          A.           The Wire Fraud Convictions                       __________________________                       To  prove wire  fraud the government must  show: 1) a          scheme to defraud by means of false pretenses, 2) the defendant's          knowing and willful  participation in the scheme  with the intent          to defraud, and 3)  the use of interstate wire  communications in          furtherance of the scheme.  United States v. Serrano, 870 F.2d 1,                                      ________________________          6 (1st Cir. 1989).  To support convictions of aiding and abetting          wire  fraud,  the  government  must  prove  that  the  "defendant          associated [herself] with the underlying venture, participated in          it as something [she]  wished to bring about, and sought by [her]          actions to make it succeed."  United States v. Clifford, 979 F.2d                                        _________________________                                         -7-                                          7          896, 899 (1st  Cir. 1992) (citing Nye &  Nissen v. United States,                                            ______________________________          336 U.S. 613, 619 (1949)).                       Neither Pezzullo nor Dolber challenges the  existence          of a  scheme to defraud.   The scheme is shown  by DeNunzio's and          Monteiro's lengthy testimony about the  details of their plan  to          trick the  lending institutions into making risky loans that were          warranted by neither the  final purchaser's ability to  repay the          loan nor the  particular property's true market value.   Pezzullo          and  Dolber  also do  not challenge  the  use of  interstate wire          communications to  effectuate the plan, as  demonstrated at trial          by testimonial and physical  evidence of the use of  fax machines          and telephone conversations throughout the scheme.                         Pezzullo and  Dolber, however,  claim that  they were          unaware  of the scheme and therefore were not knowing and willful          participants in it.   We hold, however, that the  jury reasonably          could have concluded from  the voluminous evidence at  trial that          both  Pezzullo and  Dolber knowingly  participated in  the scheme          with intent to defraud, and also aided and abetted the fraud.                       1.   Pezzullo                            ________                       Pezzullo  participated  in  all the  double closings,          almost all  of which took place  at the office of  the Cassiere &          Pezzullo law firm.   Fred Strangis testified that Pezzullo's role          was to "prepare all the papers and as you're signing them,  would          bring them to you,  try to get you to  read them, try to  explain          them to you."  Frank Andrews and Dennis  Griffin, two other straw          final  buyers,  and  Marlissa   Pina,  representing  one  of  the                                         -8-                                          8          controlled    corporate   purchasers,    corroborated   Strangis'          testimony.                          Because   the   lending  institutions   give   higher          mortgages  to  individuals who  live  in the  property  they buy,          Strangis signed Residential Loan Applications and Owner Occupancy          Affidavits, which  Pezzullo gave him, stating that he intended to          occupy  the property.  Strangis  was the final  purchaser of four          properties,  however,  and  at  closings on  December  12,  1990,          February 6,  1991, April 12, 1991, and  April 15, 1991, he signed          forms stating that four different properties would be his primary          residence.    Other  straw  final  purchasers   similarly  signed          multiple owner-occupancy  documents at the  closings: Peter  Pina          within one month and  a half signed three  such forms;   Jeanette          Monteiro within a four-month  period twice signed such documents;          Dennis  Griffin in one month signed two such documents; and Frank          Andrews within three months  signed two.  Pezzullo  witnessed the          signing of each of these documents.                       All of the lenders required that the purchaser  bring          a twenty percent down payment to  the closing.  Neither the straw          buyers making  the second  purchases nor the  corporations making          the first  purchases brought down  payments with them.   Instead,          Cassiere or Pezzullo  notified Monteiro before the closing of the          amount of the  down payment and he would  bring a cashier's check          for  that   amount  to  the  closing.    Nonetheless,  the  HUD-1          Settlement Statements  that Cassiere  filled out at  the closings          reported that the buyers had brought the money.                                           -9-                                          9                       The   only   function  of   the   officers   of   the          corporations that  DeNunzio and  Monteiro controlled was  to sign          legal documents designed to  keep Monteiro's and DeNunzio's roles          hidden.  Pezzullo,  however, was aware that DeNunzio and Monteiro          controlled the corporations, since Half & Half  used the Cassiere          and Pezzullo offices  as its  corporate address.   At the  double          closings where each property  was first sold and  then purchased,          neither Cassiere  nor Pezzullo  told the corporate  officers what          the documents they were  signing meant, or that they  were buying          and selling real property.                          Pezzullo  handled  the  distribution of  the proceeds          from  the  second  half of  the  flip.   The  proceeds  were "the          difference between the  loan amount [from  the lender] minus  the          first sale price, minus  any closing costs."  After  Cassiere and          Pezzullo had completed the  deeds on the two sales  following the          double closings, Pezzullo disbursed the funds  that came from the          final purchaser's  mortgage.   Pezzullo gave Monteiro  the amount          due to  the original  owner  from the  first  half of  the  flip,          returned  the  down  payments   to  Monteiro  and  DeNunzio,  and          distributed the  remaining proceeds to Monteiro  and DeNunzio for          them  to divide.  In addition to distributing the mortgage funds,          Pezzullo prepared  disbursement sheets noting the  funds received          and the funds disbursed.                            Paul Pires, as Half & Half's president, first  bought          and then sold property in nine of the flips.  At each closing, in          Pezzullo's presence,  he  signed a  HUD-1  form and  a  statement                                         -10-                                          10          certifying  that he had  received a copy  of the HUD-1  form, yet          neither Cassiere nor Pezzullo ever gave him that document.                       George  Gundensen, president of CenTrust Corporation,          one  of  the lending  institutions,  testified  that the  closing          attorney  is expected  to  fill  in  all  blank  spaces  in  loan          documents before having the  mortgagor sign the documents.   Some          of  the final buyers signed  forms at the  closing, however, that          were  completely blank.  In fact, Cassiere and Pezzullo discussed          in Marlissa  Pina's presence that they were  asking her to sign a          blank document.                        Had the  lending institutions been  informed that the          same law firm  had closed twice on the same  property on the same          day  and with such wide price disparities, they would have either          "suspend[ed] the loan for  further information or cancell[ed] the          loan."   Because  of the  large difference  between the  two sale          prices,  the  lending institution  would  have  believed that  it          "would  be making a  loan on a  piece of property,  the value for          which wouldn't support the amount of the loan being made."                              The  foregoing  evidence,  together  with  additional          evidence  in the  record  we have  not  discussed, justified  the          jury's  conclusion that  Pezzullo both  committed wire  fraud and          aided and abetted its commission.                         2.   Dolber                            ______                       Although Dolber  never participated in the  closings,          she had  a vital role in  making the scheme work.   Her appraisal          forms, which  she  submitted to  Rate  Line, supported  the  high                                         -11-                                          11          second sale price and thus resulted in the higher mortgages.  The          lenders relied  heavily on  the accuracy of  Dolber's appraisals.          As  noted, every  appraisal  she submitted  on the  thirteen land          flips for properties was identical to the second sale prices, or,          in three instances, slightly higher.                         DeNunzio testified  that he wanted  to use Dolber  as          the appraiser because he knew from talking to her that "she would          bring  in  property values  as high  as  possible," and  that she          "would use non-arm's length  transactions for sales comparisons."          By  non-arm's  length  transactions,  DeNunzio  meant  "that  the          comparable  sales  used  were not  a  true  sale  with a  wanting          borrower and  a wanting seller."   Instead, the  comparable sales          she  used  often   were  previous  flips   that  Rate  Line   had          established, and, therefore, did not reflect true market value.                       Suburban Mortgage Company made a review appraisal  of          one of the properties to evaluate Dolber's appraisal.  Dolber had          appraised the property at $210,000 and described the neighborhood          as "a  mixture of similar  well maintained income  properties and          medium   well  maintained  single  family  homes.  .  .  .    The          neighborhood is stable at this time and shows that revitalization          has  been completed  and upgraded  the area.  . .  .   No adverse          market conditions from neighborhood."                         The review appraiser concluded that the market  value          of the property as of the date of Dolber's appraisal was $50,000.          In  response   to  the  question  "Is   the  appraiser's  overall          description  of the  neighborhood  complete and  accurate?,"  the                                         -12-                                          12          review appraiser  answered "No" and explained that  "This area is          in the midst  of a high crime  drug area of the city.   There are          boarded up buildings, fire damaged units and vacant apartments in          buildings.  This is  the least desirable area in  the city within          which to live."                         Monteiro accompanied  Dolber in  viewing some  of the          appraised properties.  He told her of the proposed sale price for          the second  half of the flip.   Usually, the appraised  value was          very close to the intended sale price.  Dolber "appraised  at the          value needed, so we [Rate Line] continued to use her."                         There was  ample evidence upon  which the jury  could          conclude that  Dolber frequently misstated the  conditions of the          appraised properties, making them  appear more valuable than they          were.  Thus, in her  appraisal of 69 Turner Street, Dolber  wrote          that  the  property  was in  need  of  "cosmetic  and minor  roof          repair," the  bathrooms were "fully functioning,"  the "[k]itchen          cabinets  are adequate," "two units are rented at this time," and          the third  unit "will be occupied  by the owner."   She rated the          property's functional  utility as "average."    Strangis, who was          the final  purchaser and  was present during  Dolber's appraisal,          testified that the property was "[b]asically a shell of a house,"          and it was not occupied at the time of her inspection or any time          since.                              It had a lot  of broken windows . .                       . .  The porch  was broken off, a couple                       of  the gutters were  gone.   The inside                       had had no plumbing.  Most of the wiring                       was  gone; whatever was  still there was                       hanging out of  the ceiling. . . .  [I]f                                         -13-                                          13                       there  were  any tubs  and  toilets were                       left  in they  were turned  upside down.                       There were no stoves, no cabinets. . . .                            It was nowhere near liveable. . . .                       A lot of the places didn't have doors.                       In her appraisal  of 34 Harvard Street, Dolber  wrote          that  "[a]ll  three units  are rented  at  this time."   Monteiro          testified that  none of the units  was rented at the  time of the          appraisal.    Dolber  described  the  property  as  having  "been          maintained in  average to  good condition," with  "all mechanical          and electrical  services [] fully functioning."  Martin Pina, the          final  purchaser of this property, testified that it was "in very          bad condition.  There was no plumbing, no pipes, no copper at all          in the  building, it  had been  stripped out.   The  building was          being  used by drug users.  There  were syringes on the inside of          the building. .  . .  [T]here  was a lot of  structural damage on          the inside."  Although Dolber certified in her appraisal that she          "personally inspected the subject property, both inside and out,"          Monteiro  and DeNunzio  testified that  Dolber never  entered the          premises  during her  appraisal, and  Dolber admitted as  much to          DeNunzio.    Furthermore,  Dolber  wrote that  the  property  was          divided into three units, but Pires testified that there were six          units.  Dolber described 11 Lebanon Street as needing "only minor          cosmetic  repair"  and  that  it  "appear[e]d  to  be  in average          condition."  Monteiro testified that all of the copper pipes were          removed  from within  the house  and that  both the  interior and          exterior  of the house were  in poor condition.   Dolber reported                                         -14-                                          14          that  there were no units vacant, but Monteiro testified that the          property  was  unoccupied  at  the time  of  appraisal.    George          Strangis  testified that there was "no  plumbing in the basement,          it  had been  all ripped out,"  only one  of the  three hot water          heaters stood upright, and  it was not connected, "the  other two          were  laying on their side," "[t]he bathroom ceiling on the first          floor . . . had  been partially ripped down," and  "[t]he heating          systems weren't operational."                         Dolber   made  similar  misstatements  regarding  the          condition  and  occupancy  of  other  properties  she  appraised.          Although she stated that  three units at 18 Winthrop  Street were          rented at  the time, Fred  Strangis and  Frank Andrews  testified          that only  one  of  the  four  units was  then  rented.    Dolber          described 23 Temple Street as having "been  maintained in average          to good  condition" with "all mechanical  and electrical services          [] fully functioning," and  reported that "[a]ll three  units are          rented  at this time."   Martin Pina, however,  testified that at          the  time of  the appraisal the  property was boarded  up, had no          electricity, the  plumbing had  been  "filled with  some type  of          Ethyl  glycol or  antifreeze to  stop the  pipes from  bursting,"          there was no water, and nobody lived in the building.  Dolber          also  repeatedly  appraised  multiple  properties  for  the  same          purchaser, and  each time  reported that the  particular property          would be owner-occupied.   Thus, in her appraisals she  certified          that Fred  Strangis would  occupy four properties,  Griffin would                                         -15-                                          15          occupy two, Andrews would occupy two, and Peter Pina would occupy          three.                         The  appraisal form required the appraiser to compare          the  subject   property  with  recent  sale   prices  of  similar          properties in  the neighborhood,  which are known  as "comparable          sales."   In  her  appraisals, Dolber  relied  on data  from  the          publication County Comps, which listed the sale prices for closed                      ____________          sales,  as a source of information about comparable sales.  Thus,          for  example, in her appraisal of 79-81 Keith Street, Dolber used          three comparable sales  and identified County  Comps as her  data                                                 _____________          source.                         The County Comps she relied on, however, showed  that                           ____________          each of the properties she used as comparable sales had been sold          twice  within  a  short   period  for  vastly  different  prices.          Similarly, in her appraisal  of 85 Ford Street, Dolber  relied on          County Comps for her  comparable sales.  County Comps  showed one          ____________                             ____________          of those properties as involving two sales on the  same day, with          the second price more than double the first price.                        Dolber's actions  in  connection  with  her  proposed          acquisition of 30-32 Water Street showed her awareness of how the          fraudulent   scheme  was   operating  and   her   willingness  to          participate  in it.  She asked DeNunzio  to handle a loan for her          on  the property and proposed that her nephew, Adam Belanger, and          his wife, Karen,  serve as  straw buyers since  Dolber had a  bad          credit rating.   After DeNunzio  told Dolber  that the  Belangers          would not  qualify for a  loan because they  did not earn  enough                                         -16-                                          16          money, Dolber told DeNunzio that she would give Karen a job,  and          asked how much  salary Karen  needed to earn  to qualify for  the          loan.                       Dolber  sent DeNunzio  a  verification  of employment          form  for  Karen  from  Whitinsville  Water  Company,  a  company          Dolber's  father owned,  which  was "blank  where the  employment          numbers  should have  been filled in  on the form."   Dolber told          DeNunzio to fill in the blanks, but when he told her he could not          do that, she undertook to do so.  Thereafter, DeNunzio received a          completed verification-of-employment form, a W-2 statement, and a          pay   stub  for   Karen  Belanger.     Both   Samuel  Carpinetti,          Whitinsville Water Company's general manager, and Karen  Belanger          testified that Karen never worked for the company.                                   Dolber  argues  that  the  government's proof  failed          because  it  did not  establish  the  appraised properties'  fair          market value.   She cites no  precedent, however, and we  know of          none, that requires the government to prove a precise fair market          value as an element of the crime of wire fraud.  To the contrary,          she notes that "market value was not in and of  itself an element          of the offenses with which Ms. Dolber was charged."  Furthermore,          the evidence justified a jury conclusion that Dolber's appraisals          falsely represented the  condition and thereby  the value of  the          properties.                       Again, citing no case law to support her  contention,          Dolber  argues that "the  jury was left  to speculate  as to what          conduct on the part of Ms. Dolber was inappropriate," because the                                         -17-                                          17          government  did not point to any code of professional ethics that          governed  her behavior.  Violation by the  defendant of a code of          ethics is not an element of the crime of wire fraud.                            Dolber  presented   a  version  of  the  facts  which          portrayed her  as  an innocent  victim  of DeNunzio's  scheme  to          defraud the  lenders.  The foregoing evidence, and other evidence          we have not discussed,  however, provided the jury with  an ample          base  for  rejecting  Dolber's  claim, and  concluding  that  she          committed wire fraud and aided and abetted its commission.          B.           The Conspiracy Convictions                       __________________________                       To  prove  that   a  defendant  is  a  member  of   a          conspiracy, the  government must demonstrate  beyond a reasonable          doubt that: 1) the defendant agreed to commit an unlawful act, 2)          the defendant voluntarily participated in the scheme,  and 3) one          of the conspirators took an affirmative step toward achieving the          conspiracy's purpose.  Braverman  v. United States, 317  U.S. 49,                                 ___________________________          53 (1942); United States  v. Gomez-Pabon, 911 F.2d 847,  852 (1st                     _____________________________          Cir.  1990), cert. denied sub  nom. Guzman v.  United States, 498                       ______________________ ________________________          U.S. 1074  (1991).  To  prove that  a defendant "belonged  to and          participated in the conspiracy,  the government [must] prove that          he  intended  to  agree  and  that  he  intended  to  commit  the          substantive  offense."  United States v. Nueva, 979 F.2d 880, 884                                  ______________________          (1st Cir. 1992), cert. denied, 113 S. Ct. 1615 (1993).                           ____________                       "[C]onspiratorial agreement  need not  be express  so          long  as  its  existence  can  plausibly  be  inferred  from  the          defendants'  words   and  actions  and   the  interdependence  of                                         -18-                                          18          activities and  persons involved."  United States  v. Boylan, 898                                              ________________________          F.2d  230, 241-42  (1st Cir.  1990), cert.  denied, 498  U.S. 849                                               _____________          (1990)  (citations omitted).   Evidence  of participation  in the          conspiracy    may    include    "inferences   from    surrounding          circumstances,  such  as acts  committed  by  the defendant  that          furthered the  conspiracy's purposes."  Gomez-Pabon,  911 F.2d at                                                  ___________          853.   Furthermore, the government is under no duty to prove that          the  defendant knew each of  the objectives of  the conspiracy or          all the details.  Id.                            ___                        Pezzullo and  Dolber do  not deny  that there  was a          conspiracy to commit wire  fraud, and the record leaves  no doubt          that one existed.   They argue, however, that the  government did          not  prove that they joined the conspiracy.  Evidence relating to          the substantive  offenses discussed  in Part II.A,  also supports          the jury  verdict of  conspiracy.   Moreover,  once the  evidence          establishes the  existence of  a conspiracy, lesser  evidence may          suffice  to  show  a  defendant's  connection  with  the  overall          conspiracy.   United States v. Smith, 726 F.2d 852, 866 (1st Cir.                        ______________________          1984).                        As shown  above, Pezzullo was  aware that the  second          purchasers did  not themselves provide  the down payments  on the          market price, although required to so do  by the HUD-1 forms that          she  and Cassiere  had them  sign.   She also  saw that  the same          individuals  repeatedly  attended  closings  on  properties  they          certified  would  be  owner-occupied.    She  was  aware  of  the          significant differences in  the prices  of the two  sales in  the                                         -19-                                          19          land flips.  At  the first flip Cassiere discussed  with Pezzullo          prior sales of 59-61  Howard Street.  Pezzullo had done the title          work for  that closing, and  Cassiere was interested  in learning          what the earlier sale prices were to see if he  could justify the          higher price to be paid in the double closing.                         An  inference  could  have  been  drawn  that  Dolber          followed Monteiro's wishes that her appraisals support the higher          sales prices in the  second flips.  She repeatedly  misstated the          condition and occupancy of  the properties she appraised, thereby          increasing  the amounts the lenders would loan on the security of          the  properties.   Dolber's  use of  her nephew  and his  wife as          straws in an  attempt to purchase 30-32 Water  Street for her was          further  evidence that she was aware of how DeNunzio and Monteiro          conducted illegal property sales.                       Don  Peters,  of First  Union  Mortgage  Corporation,          became suspicious about an appraisal that Dolber had conducted on          a mortgage First Union purchased from Rate Line.  He asked Dolber          to explain the  apparent increase  in the value  of the  property          within  one day  which he  noted from  his review  of Banker  and          Tradesmen,  a  listing  of  property values  and  closing  dates.          Dolber called DeNunzio, told him of her conversation with Peters,          and asked, "what's that all about?"                         In a  subsequent conversation,  DeNunzio told  Dolber          that he  had checked  out the  situation, that  there had been  a          prior foreclosure sale, but  that she would not have  known about          it because  that sale had not  been recorded at the  time she did                                         -20-                                          20          the appraisal.  When Dolber told him that Peters had requested  a          written  response, DeNunzio told her that he wanted to review the          letter  before she sent  it out.  The  letter Dolber wrote Peters          provided an  explanation similar  to the  one DeNunzio had  given          her:   the low  first sale  price was  due to  the fact that  the          property was purchased from foreclosure, and thus did not reflect          the true  market value.  At the time she conducted her appraisal,          none of her data sources mentioned that sale.                         On another occasion Dolber called DeNunzio and  asked          him  to meet her outside  a bar but  refused to tell  him why she          wanted  to  do  so.    He  met  her  there  and  they  had  their          conversation inside her  car.   Dolber told him  that she  needed          photographs of  four of  the properties  she had appraised  since          Monteiro,  and not she, had taken the photographs.  She explained          that she needed  the pictures  in her records,  which the  United          States government had requested.   He agreed to provide  her with          the pictures.                         The evidence  supports the jury finding that Pezzullo          and Dolber were knowing and willing participants in a  conspiracy          to  defraud the  lending  institutions.   The  government is  not          required  to prove that each co-conspirator  knew every detail of          the scheme; "[a]ll  that is  required is to  show 'the  essential          nature  of  the plan  and their  connections  with it.'"   United                                                                     ______          States  v.  Rivera-Santiago,  872  F.2d  1073,  1079  (1st  Cir.)          ___________________________          (quoting Blumenthal v. United States, 332  U.S. 539, 557 (1947)),                   ___________________________                                         -21-                                          21          cert. denied  sub nom. Castro-Poupart v. United  States, 492 U.S.          ______________________ ________________________________          910 (1989).                          III.  Questions Asked By the Jurors                       At  the beginning  of the  trial, before  any  of the          attorneys  had made opening  statements, the court  told the jury          that it could ask  the witnesses questions.  The  court explained          that  the questions had to be written; that the written questions          would be submitted  to the  court, which would  review them;  and          that  the court  might not ask  a jury  question if  the question          could not be  put in a proper legal form or it "couldn't make any          legal difference at  all."   During the 24-day  trial, the  court          asked  the  witnesses  eleven   questions  that  the  jurors  had          submitted.                       The defendants did not object to the court  following          the  practice thus to ask questions or, indeed, to any particular          question asked.  "In the absence of a timely objection our review          is  limited to examining the record  for plain error, and we will          correct only particularly  egregious errors . .  . that seriously          affect the  fairness, integrity or public  reputation of judicial          proceedings."   United States v.  Munson, 819 F.2d  337, 340 (1st                          ________________________          Cir. 1987) (internal quotations omitted).                       In  United States v. Sutton, 970 F.2d  1001 (1st Cir.                           _______________________          1992), decided after the trial in the present case, we upheld the          actions  of the same district judge in employing this practice in          a  mail  and wire  fraud prosecution,  in  which the  court asked          witnesses seven questions submitted by the jurors.   We held that                                         -22-                                          22          "especially in complex cases," "allowing juror-inspired questions          in  a criminal case  is not prejudicial  per se, but  is a matter                                                   ______          committed  to the sound  discretion of the trial  court."  Id. at                                                                     __          1005.  We noted  that other circuits similarly had  so concluded.          Id.             __                       We  explained   that  "[a]llowing   jurors  to   pose          questions during a  criminal trial  is a  procedure fraught  with          perils.   In most cases, the  game will not be  worth the candle.          Nevertheless, we are fully committed  to the principle that trial          judges  should be  given wide  latitude to  manage trials."   Id.                                                                        __          Although we stated  that "in most situations,  the risks inherent          in the practice will outweigh its utility," we held that we would          review  the propriety  of the  practice on  a  case-by-case basis          based on the totality of the circumstances.  Id.                                                       ___                       In  Sutton,  we  held  that  for  four  reasons,  the                           ______          court's asking of the  juror questions was not  reversible error.          First,  Sutton  "neither objected  nor  requested  any additional          safeguards."  Id.  at 1006.   Second, "[b]ecause  [Sutton] was  a                        ___                                  ______          factually complex  case in  which a greater-than-average  risk of          jury  confusion existed,  the positive  value of  allowing juror-          inspired questioning was relatively high."  Id.  Third, the court                                                      ___          used appropriate  procedural safeguards,  such as  requiring that          the questions be presented in writing to the court and explaining          to the jury  that the  court might not  ask all juror  questions.          Id.  Fourth,  "the questions  themselves were few  in number  and          ___          bland in character."  Id. (footnote omitted).                                 ___                                         -23-                                          23                       The first  three reasons  unquestionably are  equally          applicable  here:      the  defendants  did  not  object  to  the          questioning,  the  case  was  factually complex,  and  the  court          adopted  procedural  safeguards  nearly  identical  to  those  in          Sutton.          ______                       Sutton involved seven jury  questions the court asked                       ______          during  a 2  1/2 day  trial.   The  present case  involves eleven          questions  asked  during a  24-day trial.    The issue,  thus, is          whether  this   significantly  larger  number  of   questions  so          seriously undermined  the fairness of the trial  as to constitute          plain error.  We answer that question negatively.                       The juror questions  the court asked  were relatively          "bland in character,"  id., and designed  to clarify and  explain                                 __          testimony already  given.   For  example, one  juror wanted  Paul          Pires  to identify the word that followed his signature on one of          the exhibits.   The word was "Pres."  Another  juror wanted Nancy          Rullo to explain  what the "preliminary title" that  she referred          to in her testimony meant.  One juror sought clarification of who          had  done the appraisal the witness was discussing.  Although the          defendants have objected  to allowing juror questions  and to the          number  asked in  this case,  they have  not now argued  that any          specific question was improper.                     Other   courts          of appeals have upheld convictions where the  court asked varying          numbers  of questions that the jurors proposed.  In United States                                                              _____________          v.  Lewin,  900  F.2d  145  (8th  Cir.  1990),  the  court,  over          _________          objections made in the jury's presence, asked six questions.  The                                         -24-                                          24          Fourth Circuit upheld a conviction in which the trial court asked          ninety-five   juror   questions   during   a   three-week  trial.          DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512 (4th Cir.          _________________________________________          1985).   The  Fifth  Circuit approved  the  asking of  one  juror          question.  United States  v. Callahan, 588 F.2d 1078  (5th Cir.),                     __________________________          cert. denied, 444 U.S. 826 (1979).          ____________                       In  each  of these  cases the  court  focused on  the          effect  of  the  questions  on  the  trial,  not  the  number  of          questions, in and of itself.  Thus, the Lewin court  approved the                                                  _____          asking of juror questions because they were factual in nature and          merely "sought  clarification of  previous testimony and  did not          introduce new or unrelated subject matter."  900 F.2d at 148.  In          DeBenedetto,  despite the  large number  of questions,  the court          ___________          "examined  carefully  each of  the  questions  propounded by  the          jurors and [] perceive[d] no bias  in any of the questions."  754          F.2d at 517.      In   Sutton,   we  noted   that  "juror-inspired                                 ______          questioning  becomes particularly troublesome  when questions are          directed at the [criminal] defendant."  970 F.2d at 1006 n.6.  In          Sutton,  the court asked only one such question of the defendant.          ______          Id.          ___                       In the  present case, the  court asked the  defendant          Cassiere four juror questions  during his testimony which spanned          three days.  Here, as in Sutton, the "appellant did not object to                                   ______          [the  questions]; and  he has  not argued  on appeal  that th[ese          questions  were] improper or  harmful."  Id.   We cannot say that                                                   __          the  district court committed plain error in asking the defendant                                         -25-                                          25          Cassiere four relatively benign juror questions during Cassiere's          three days of testifying.                       The  defendants  argue, however,  that by  asking the          jury  questions during the testimony  of the witnesses, the court          improperly interfered  with their  ability to conduct  direct and          cross-examination of the witnesses.  The district court, however,          has broad discretion to  control trial proceedings.  Id.  at 1005                                                               __          ("we are  fully  committed to  the  principle that  trial  judges          should be given wide latitude to manage trials"); see also United                                                            ________ ______          States v.  Slone, 833  F.2d 595, 597  (6th Cir. 1987)  (The court          ________________          "must see that the issues are not obscured and that the testimony          is not misunderstood.").   While objections from opposing counsel          and   sidebars   may  be   similarly   disruptive  of   counsel's          examination, they are interruptions that are also critical to the          fair and rational progression  of the trial.  We  cannot say that          the court's asking  of the jurors'  questions so interfered  with          counsels'  questioning of the witnesses as to constitute a denial          of the defendants' right to a fair trial.                       Although  we uphold  the district  court's asking the          juror questions in this case, we reiterate what we said in Sutton                                                                     ______          regarding the use of this practice.   As we there indicated,  the          practice  should  be  reserved for  exceptional  situations,  and          should  not become  the  routine, even  in  complex cases.    The          district court   should inform  counsel at the  earliest possible          time of its intention to use this technique and allow counsel the          opportunity to object.  The court should instruct the jurors that                                         -26-                                          26          they should limit  their questions to  important points, that  at          times the rules of evidence will dictate that the court not ask a          question, and that the jurors should draw no implication from the          court's failure to  pose a juror-proposed  question to the  jury.          The jurors should reduce their questions to writing and pass them          to the court.  Before asking a question, the court should offer a          sidebar  conference to  give counsel  the opportunity  to object.          Finally, in its  charge, the court should include  a prophylactic          instruction, along the lines suggested in Sutton.                                                    ______                               IV. Evidentiary Rulings                       The   "trial   court's   rulings  on   relevance  and          admissibility will not be  disturbed unless there is an  abuse of          discretion."  United States  v. Drougas, 748 F.2d 8, 24 (1st Cir.                        _________________________          1984).          A.           Admission of the Publication County Comps                       _________________________________________                       Dolber challenges  the  court's  admission  of  seven          reports from the publication County Comps.                                         ____________                       Federal  Rule  of  Evidence  803(17)  allows,  as  an          exception  to  the  hearsay  rule,  the  admission  of  "[m]arket          quotations,  tabulations, lists, directories,  or other published          compilations,  generally used and relied upon by the public or by          persons in particular occupations."                       County   Comps   publishes   a  monthly   listing  of                       ______________          properties sold, the sales  prices, and the dates the  sales were          closed.   Real estate  brokers, insurance agents,  and appraisers          buy  County  Comps.    The  operating  manager  of  County  Comps               _____________                                  _____________                                         -27-                                          27          testified  that  the reports  admitted  were  authentic.   Dolber          referred to County  Comps as  her source of  data for  comparable                      _____________          sales in her appraisals.                         Dolber  argues  that  "although   the  County   Comps          listings at  first  blush appear  to  deal with  compilations  of          relatively  straightforward  facts,   this  evidence  required  a          subjective analysis of other facts."  Individuals might differ in          the conclusions  they draw from  the data  in County Comps.   But                                                        ____________          that is  not the  test  for admission  of the  publication.   The          evidence shows  that County Comps is  a "published compilation[],                               ____________          generally used and relied upon by" appraisers.  The court did not          abuse its discretion in admitting the evidence.             B.           Questions  Asked  of Cassiere  Regarding Professional                       _____________________________________________________          Standards           _________                       Cassiere argues  that the  government held  him to  a          higher  standard of conduct because  he is an  attorney, based on          the following colloquy between the prosecutor and Cassiere:                       Q.   And in  addition to being  aware of                            the  responsibilities as  a closing                            attorney, sir, you  as an  attorney                            have  certain  responsibilities  in                            conjunction    with    representing                            anybody, right?                       A.   Yes.                       Q.   And      those      duties      and                            responsibilities  are set  forth in                            such things as  a canon of  ethics,                            are they not?                       Cassiere objected  and, after  a sidebar  conference,          the court overruled the objection and explained:                                         -28-                                          28                       I'm  going to  be  very  express [in  my                       charge] that sloppy  or careless work is                       not  criminal.   It may  be malpractice,                       but it's not criminal.  But I've decided                       .  .  .  that  the  failure  to  make  a                       disclosure of material fact when under a                       duty to make a disclosure which  duty is                       known to the  individual with a specific                       intent to defraud by failing to make the                       disclosure  constitutes  a violation  of                       the statute.                             The questioning continued:                       Q.   You're  aware  of  the   canons  of                            ethics governing attorneys?                       A.   I am.                       Q.   And the disciplinary rules?                       A.   I am.                       Q.   And I gather you were also a former                            prosecutor?                       A.   I was.                       Q.   You're aware of the criminal laws?                            MR. O'BRIEN: Objection, your honor.                            THE COURT: No. overruled.                       A.   I'm not  aware of all  the criminal                            laws.   I'm  aware of  the criminal                            laws that I enforced.                       Q.   You're aware of, you were  aware in                            June  of  1990 of  these  things as                            well, I gather?                       A.   I don't know what you mean by these                            things.                       Q.   The canons of ethics?                       A.   Yes.                       Q,   The disciplinary rules?                       A.   Yes.                                         -29-                                          29                       Q.   And  you  recognized  that   as  an                            attorney  you  were  under  certain                            obligations?                       A.   Under certain obligations, yes.                       Q.   Those     obligations     included,                            included a                            responsibility to act truthfully?                       A.   Uh-huh.                       Q.   And honestly?                       A.   Correct.                       Q.   And disclose certain information?                       A.   I  don't  know  what  you  mean  by                            disclose certain information.                       The  court  then  sustained  an  objection  and   the          prosecutor moved on.                         To comprehend Cassiere's role in this scheme, it  was          important for  the jury  to  understand how  Cassiere and  others          viewed his duties as  a closing attorney and whether  he believed          he had violated those duties.  These facts were important for the          jury in determining  whether his participation  in the scheme  to          defraud his  clients, the  lending institutions,  was intentional          and  knowing.  The district court has discretion to determine the          scope of cross-examination,   United States  v. Tracey, 675  F.2d                                        ________________________          433, 437  (1st Cir. 1982),  and did  not abuse its  discretion in          allowing the preceding colloquy.            C.           Exclusion of Land Deeds                       _______________________                       Cassiere challenges  the court's  exclusion of  three          land deeds "that the defendant said supported his view of why the          real  estate  values  in  question were  reasonable."    Cassiere                                         -30-                                          30          testified that he relied on the prior deeds for sales in 1986 and          1987 in making his title examination for properties that were the          subject  of the  indictment.   Cassiere  testified  that he  also          relied  on  those  deeds,  which  listed  past  sale  prices,  as          indications of the value of the property at the time he conducted          the title searches.                       The  court excluded  these deeds  "on the  ground  of          relevance  [because] they're  [sic] conveyance  is too  remote in          time given, and I take judicial notice at the side bar of the . .          . marked decline  in real estate values within the period of time          and material to  this lawsuit."   The court  allowed Cassiere  to          testify  that these deeds formed the basis of his conclusion that          the  second sale prices in the land  flips were justified.  Since          the deeds were for sales that occurred four  to five years before          those at issue in the case, and since the evidence was cumulative          to Cassiere's testimony, the  court did not abuse  its discretion          in excluding the deeds.            D.           Admission of Evidence Under Rule 404(b)                       _______________________________________                       Pezzullo   challenges  the  court's  admission  under          Federal Rule  of Evidence  404(b) of  evidence concerning  a real          estate transaction not charged in the indictment.   Dolber argues          that the  court  erred  in admitting  under  that  rule  evidence          concerning a similar transaction and a tape recorded conversation          between herself and DeNunzio.                       1.   The Two  Land  Transactions Not  Charged in  The                            ________________________________________________                            Indictment                            __________                                         -31-                                          31                       Cassiere  entered  into  negotiations  with  Hybernia          Savings bank to buy 23 Newark Street, which the bank recently had          foreclosed.  Pezzullo signed a purchase and sales  agreement with          the bank for $65,000.   Cassiere offered to sell  the property to          Robert Felicio and Richard Rego.  His plan was to pay Felicio and          Rego  to renovate the property and, thus, provide them with money          for their down payment.   Before work was begun on  the property,          Cassiere had Felicio and  Rego inquire of Rate Line  whether they          could qualify for a mortgage loan.                       Cassiere  told DeNunzio  that he was  structuring the          sale as a "no money down flip."  After receiving loan information          from Felicio and  Rego at  the law firm,  Monteiro told  DeNunzio          that he  was upset  that Felicio  and Rego  "were sitting in  the          office along  with  Joe Cassiere  [and] were  making jokes  about          Glenn Monteiro looking the  other way in regards to  processing a          loan the way it should be."                       Cassiere  and  Pezzullo decided  that they  would not          make enough  profit on the resale  so they told  Felicio that the          deal  was off.    Cassiere  later  negotiated a  second  purchase          agreement with  Hybernia for $35,000.   DeNunzio asked  Dolber to          appraise  the property, which she  valued at $157,000.   The same          month, Pezzullo purchased the property for $35,000.                         Dolber also  sought to buy  property on Water  Street          using her nephew and his wife as straw buyers due to her own poor          credit  rating.  See II.A above.   The loan fell through when the                           ___          lender refused to do any more business with DeNunzio.                                           -32-                                          32                       2.   The Tape Recording                            __________________                       Following  inquiries  by  the  lending  institutions,          DeNunzio tape-recorded several telephone conversations.  After an          evidentiary hearing, the court admitted a tape containing a phone          conversation between  Dolber and DeNunzio.   The conversation was          short,  and  according  to  DeNunzio was  recorded  by  accident,          because the  call from Dolber came in on his call waiting service          while  he was conducting another conversation that he was taping.          Once  DeNunzio  finished with  each  conversation  he turned  the          recorder off  and back  on again to  record his own  statement of          when  and  with whom  the conversation  had  taken place.   After          recording  this information,  he clicked  Dolber back  in through          call waiting and recorded his conversation with her.                       In  that  conversation,  Dolber  told  DeNunzio  that          although  Karen  Belanger  did  not work  at  Whitinsville  Water          Company,   they  could   fill  in   the  appropriate   employment          verification  forms as though she did, and at whatever salary was          necessary.  The recording was cut off abruptly at the end.                         3.   Admissibility of the Evidence                            _____________________________                            (a)   Prior to  reviewing the  court's admission          of the  foregoing evidence under  Rule 404(b), we  must determine          whether the making  of the tape recording  was legal, and if  so,          whether   the  government  adequately   demonstrated  the  tape's          authenticity.                          Title  18   of  the   United  States  Code,   section          2511(2)(d) provides:                                         -33-                                          33                            It shall not be unlawful under this                       chapter  for a  person not  acting under                       color of law to  intercept a wire, oral,                       or  electronic communication  where such                       person is a  party to the communications                       or  where one  of  the  parties  to  the                       communication has given prior consent to                       such     interception    unless     such                       communication  is  intercepted  for  the                       purpose  of  committing any  criminal or                       tortious   act   in  violation   of  the                       Constitution  or  laws  of   the  United                       States or of any State.          18 U.S.C.   2511(2)(d) (1988).                       A  defendant seeking  to  suppress a  tape  recording          "bears the burden of proving by a preponderance of the evidence,"          United States v.  Vest, 639 F.  Supp. 899,  907 (D. Mass.  1986),          ______________________          aff'd, 813 F.2d 477 (1st Cir. 1987), either "(1) that the primary          _____          motivation, or  (2) that  a determinative  factor in the  actor's          motivation  for intercepting  the  conversation was  to commit  a          criminal, tortious, or other injurious act."  Id. at 904.                                                            ___                       After an  evidentiary  hearing,  the  district  court          ruled  that it was "not persuaded  by a fair preponderance of the          evidence that Mr. DeNunzio made the recording of Ms. Dolber for a          criminal, tortious or injurious purpose; at most, the Court finds          that  if anything  Mr. DeNunzio  made the  tape recording  of the          conversation  in  order  to   prevent  future  distortions  by  a          participant."  The court concluded that DeNunzio did not make the          tape to  blackmail  Dolber or  as  part of  a  conspiracy.   This          factual  finding  reflecting  the  court's familiarity  with  the          evidence  and  its  evaluation  of witness  credibility,  is  not          clearly erroneous.                                          -34-                                          34                       After the evidentiary  hearing, the court found  that          the government had established a proper foundation for the tape's          authenticity.    Dolber challenges  that  conclusion  because she          views  DeNunzio's  testimony  as  inconsistent,  incredible,  and          suspect.  Credibility determinations  are for the district court,          and Dolber does not show that the finding was clearly erroneous.                       (b)  Rule 404(b) provides:                       Evidence  of  other  crimes, wrongs,  or                       acts  is not  admissible  to  prove  the                       character of  a person in order  to show                       action in conformity therewith.  It may,                       however,   be   admissible   for   other                       purposes,  such  as  proof   of  motive,                       opportunity, intent,  preparation, plan,                       knowledge,   identity,  or   absence  of                       mistake or accident . . . .          Fed.R.Evid. 404(b).                       Rule 404(b)  "is one  of inclusion  which allows  the          introduction of  evidence of other crimes, wrongs, or acts unless          the evidence tends to  only prove criminal disposition."   United                                                                     ______          States v. Fields, 871 F.2d 188, 196 (1st Cir.), cert. denied, 493          ________________                                ____________          U.S. 955 (1989).                       Determining the admissibility of  evidence under Rule          404(b) requires  a two-pronged inquiry.   "The trial  judge first          determines  whether  the  evidence has  some  'special' probative          value  showing  intent,  preparation,  knowledge  or  absence  of          mistake."  United States v. Garcia, 983 F.2d 1160, 1172 (1st Cir.                     _______________________          1993).   "Next,  the judge  balances the  probative value  of the          evidence  against the  danger  of unfair  prejudice, pursuant  to                                         -35-                                          35          Fed.R.Evid.  403."   Id. (footnote omitted).   Rule  403 provides                               ___          that:                       Although   relevant,  evidence   may  be                       excluded  if  its  probative   value  is                       substantially  outweighed by  the danger                       of  unfair  prejudice, confusion  of the                       issues,  or misleading  the jury,  or by                       considerations of undue delay,  waste of                       time,   or   needless  presentation   of                       cumulative evidence.          Fed.R.Evid. 403.                       On  appeal, we  review the  Rule 404(b) determination          for abuse of discretion.  Garcia, 983 F.2d at 1172.                                    ______                       Knowledge  and intent  were critical  issues  in this          case.  The  Water Street  transaction was  probative of  Dolber's          knowledge and intent in  two significant ways.  Unlike  the other          land flips,  in which she  served only  as an appraiser,  in this          instance Dolber was  involved in  an actual attempt  to obtain  a          mortgage  loan.     The  evidence   showed  Dolber's   submitting          fraudulent documents concerning Karen Belanger's employment.                       The  Newark  Street transaction  reflected Pezzullo's          functioning  in  a different  role from  that  in the  other land          flips.     Here,  Cassiere  and  Pezzullo,  and  not  Rate  Line,          masterminded  the   flip  and   intended  to  buy   the  property          themselves.  This evidence  was probative of Pezzullo's knowledge          of how a flip was arranged.                        The        tape          recording was  probative of Dolber's knowledge  concerning how to          go about defrauding a lender.                                         -36-                                          36                       All of this  evidence thus satisfied the first  prong          of the rule 404(b)  test, since it had "some  'special' probative          value showingintent, preparation,knowledge or absenceof mistake."          Garcia, 983 F.2d at 1172.          ______                       On the  second prong  of the rule 404(b)  test, "[w]e          afford  'considerable leeway' to a district court in its Rule 403          balancing, and we will reverse a  district court's balancing only          in  'exceptional   circumstances.'"     Id.  at   1173  (internal                                                  __          quotations  and citations  omitted);  see also  United States  v.                                                ________  _________________          Zeuli,   725  F.2d  813,  816  (1st  Cir.  1984)  ("the  test  of          _____          admissibility is committed  primarily to the trial  court").  The          evidence of the two land transactions and the tape recording were          probative as to  intent and knowledge,  critical elements of  the          crimes  charged, and  there were  no  "exceptional circumstances"          indicating an  abuse of the  court's discretion in  admitting the          evidence.                               V. The Jury Instructions          A.           Challenged Jury Instructions                       ____________________________                       The  defendants challenge  two  of the  trial court's          jury  instructions.  We review  for abuse of  discretion.  United                                                                     ______          States v. Picciandra, 788  F.2d 39, 46 (1st Cir.),  cert. denied,          ____________________                                ____________          479  U.S. 847 (1986).  We must  look at the instructions in light          of  the   evidence  and  determine  whether   they  "'fairly  and          adequately submit[] the issues  in the case to  the jury.'"   Id.                                                                        ___          (quoting  United States v. Fishbach & Moore, Inc., 750 F.2d 1183,                    _______________________________________          1195  (3d Cir. 1984), cert.  denied, 470 U.S.  1029 (1985)).  The                                _____________                                         -37-                                          37          trial  court has  "considerable latitude"  in charging  the jury.          Id.          ___                       1.   Failure-to-Disclose Instruction                            _______________________________                       Cassiere  and   Pezzullo  argue   that  the   court's          failure-to-disclose instruction "impermissibly  allowed the  jury          to predicate a finding of guilt on a failure to disclose that was          rooted in  the defendant's contractual or  professional status or          relationship with other parties."                         The court told the jury:                            A  failure  to disclose  a material                       fact  may  also  constitute a  false  or                       fraudulent  misrepresentation  if,  one,                       the   person   was   under   a   general                       professional  or a  specific contractual                       duty to  make  such a  disclosure;  and,                       two,  the  person  actually   knew  such                       disclosure ought to  be made; and three,                       the   person   failed   to   make   such                       disclosure with the  specific intent  to                       defraud.                       The court continued:                       The government has  to prove as to  each                       count  considered  separately, that  the                       alleged misrepresentation  as charged in                       the indictment was made with  the intent                       to  defraud, that  is,  to  advance  the                       scheme or  artifice to defraud.   Such a                       scheme in each case has to be reasonably                       calculated  to  deceive   a  lender   of                       ordinary  prudence,  ordinary  care  and                       comprehension.                       The court also instructed:                       [I]t   is  not  a  crime  simply  to  be                       careless or sloppy  in discharging  your                       duties   as  an  attorney   or  a[s]  an                       appraiser.  That may be malpractice, but                       it's not a crime.                                         -38-                                          38                       "It is well settled  that breach of a fiduciary duty,          standing alone, does  not constitute mail fraud."   United States                                                              _____________          v.  Greenleaf, 692 F.2d 182,  188 (1st Cir.  1982), cert. denied,          _____________                                       ____________          460  U.S.  1069  (1983).   However,  one  of  the "elements  that          transform[s] a  fiduciary breach into mail fraud . . . . is where          there  is a  recognizable scheme  formed with specific  intent to          defraud."   Id.  This is  equally true for wire  fraud.  Cassiere                      ___          admits  as much  when  he  writes in  his  brief:  "There may  be          circumstances  in which  a violation  of a  non-criminal standard          such  as the canons of  ethics could conceivably  be probative on          the issue of whether or not there was fraud."                         Cassiere states  both that the  record is unclear  as          to who his  client was, and  somewhat inconsistently that  "[h]is          ostensible client  was  the bank  writing the  mortgage for  each          piece  of property."  The latter statement is correct.  Cassiere,          assisted by his  law partner Pezzullo,  was the closing  attorney          and  represented the lenders, which he acknowledged at trial.  As          attorneys representing  the lenders, Cassiere and  Pezzullo had a          fiduciary  duty  toward them,  which  Cassiere  also admitted  at          trial.       In United States  v. Silvano, 812 F.2d 754, 759  (1st                          _________________________          Cir. 1987),  we  held  that  "the affirmative  duty  to  disclose          material  information  arises  out  of  a  government  official's          fiduciary   relationship  to   his   or  her   employer."     Id.                                                                        ___          "Concealment of  material information by an employee under a duty          to disclose to his or her employer 'under circumstances where the          non-disclosure  could or does result in harm to [the employer] is                                         -39-                                          39          a violation of the  [mail fraud] statute.'"  Id.  (quoting United                                                       ___           ______          States  v.  Bronston, 658  F.2d 920,  926  (2d Cir.  1981), cert.          ____________________                                        _____          denied, 456 U.S. 915 (1982)).            ______                       That reasoning  is equally applicable here, where the          lenders,  the clients of the Cassiere & Pezzullo firm, viewed the          closing  attorney  as  their  "eyes and  ears,"  and  "expect[ed]          fundamental honesty" from them.   In its written  instructions to          the closing attorneys, one lender stated: "While we have tried to          cover  our  procedures  in  these closing  transactions,  we  are          relying on your  judgment and  experience as a  closing agent  to          properly handle and complete our loan closing.  However, when you          are  in doubt  of a  situation,  please confer  with us  prior to          closing."                         The    court's    failure-to-disclose     instruction          correctly stated the law  as it applied to Cassiere  and Pezzullo          in view of their fiduciary duty to the lenders.                               2.   Willful Blindness Instruction                            _____________________________                       The   defendants   challenge  the   court's   willful          blindness instruction:                              Now, the element of  knowledge that                       I  just mentioned  for Counts  1 through                       15,   that  may   be  satisfied   by  an                       inference,  drawn  from proof,  that the                       particular  person  accused deliberately                       closed  his or  her  eyes to  what would                       otherwise  have  been  obvious  to  that                       person.   You may infer knowledge if you                       find beyond a  reasonable doubt that the                       particular person accused refused  to be                       enlightened, refused to take notice, but                       only  where you  find the  individual is                       aware of  a  high probability  that  the                       fact  exists and where the individual in                                         -40-                                          40                       his or her own  mind does not believe --                       strike  that,  does  not disbelieve  the                       fact  where  there's a  high probability                       that     the    fact     that's    being                       misrepresented actually exists and where                       the  person  in  his  or  her  own  mind                       doesn't disbelieve that fact.                            Stated  another   way,  a  person's                       knowledge may be inferred from a willful                       blindness to the  existence of the fact.                       It's entirely up to you whether you find                       any  deliberate closing of the eyes, any                       inference   to   be   drawn  from   such                       evidence.    Remember, though,  evidence                       showing  negligence  or  mistake is  not                       enough to  support a finding  of willful                       blindness.      The  ultimate   fact  of                       criminal  intent  may be  established by                       circumstantial   evidence  if   you  are                       satisfied that  it  is proven  beyond  a                       reasonable doubt.                            Caution  is   necessary  in   giving  a  willful          blindness instruction "'because of  the possibility that the jury          will  be  led  to employ  a  negligence  standard  and convict  a          defendant on the  impermissible ground that he  should have known          [an   illegal  act]  was  taking  place.'"     United  States  v.                                                         __________________          Littlefield, 840  F.2d 143,  148 n.3  (1st Cir.) (quoting  United          ___________                                                ______          States  v. White,  794  F.2d 367,  371  (8th Cir.  1986)),  cert.          ________________                                            _____          denied,  488 U.S. 860  (1988).   A court  properly gives  such an          ______          instruction when "a  defendant claims  a lack  of knowledge,  the          facts suggest a conscious course of deliberate ignorance, and the          instruction,  taken  as  a  whole,  cannot  be  misunderstood  as          mandating an inference of knowledge."  Id. at 147.                                                 ___                       The  defendants did  not deny  the existence  of  the          scheme to defraud, but  contended only that they were  unaware of          it.  Furthermore,  the instruction  made it clear  to the  jurors                                         -41-                                          41          that  it was  for them  to determine  whether the  defendants had          closed their eyes to what should have been apparent to them.  The          court  three times used the word "may" and explained that "[i]t's          entirely up to you whether you find any deliberate closing of the          eyes."   See Picciandra, 788 F.2d at 46 (approving an instruction                   ___ __________          that permitted but did not require the jury to  draw an inference          of willful blindness).                           Although the  government's main  contention at  trial          was that  all three defendants  were knowing participants  in the          scheme,  the government  presented evidence  from which  the jury          could have concluded that if they did not know what was going on,          it was  only because  they chose  to turn a  blind eye.   "Guilty          knowledge may be inferred where instances of fraud are repeatedly          brought to a defendant's  attention without prompting  alteration          of  his facilitative conduct."  United States v. Nivica, 887 F.2d                                          _______________________          1110, 1114 (1st Cir.  1989), cert. denied, 494 U.S.  1005 (1990).                                       ____________                                 Cassiere  argues that, like the failure-to-          disclose instruction, this instruction  suggests to the jury that          although  "negligence or  mistake  is  not  enough to  support  a          finding  of  willful  blindness,  .  .  .  [anything]  more  than          negligence is enough."   Thus, the argument goes, the  jury could          have  concluded that the breach  of canons of  ethics alone could          constitute  "more than negligence,"  and lead to conviction.  The          instruction  explained  that   "evidence  showing  negligence  or          mistake  is not  enough."  It  also told  the jury  that it could          consider  "any  deliberate closing  of the  eyes."   As  with the                                         -42-                                          42          failure-to-disclose  instruction, breach  of  a  fiduciary  duty,          alone,  would not  prove willful  blindness, but  the jury  could          infer   knowledge   if   it   concluded   that   the   defendants          "deliberately" closed their  eyes to facts  that they were  duty-          bound to report to the lending institutions.                       Cassiere further  argues that  the willful  blindness          instruction was "logically inconsistent  with the Court's  charge          on  failure  to  disclose  a  material  fact,"  and  that  "[t]he          government  cannot have  it both  ways."   The willful  blindness          instruction,  however,  related to  the defendant's  knowledge of          what  occurred.   The  failure-to-disclose charge,  on the  other          hand, instructed  the jury on determining  whether the defendants          were involved in the scheme to defraud.                       Finally,  Dolber  argues that  the  admission  of the          rule 404(b) evidence  to prove  her knowledge of  the scheme  was          inconsistent with  the government's contention that  she remained          willfully blind to the scheme.  We know of no authority, however,          that  prohibits  the  government  from  proceeding  on  alternate          theories in a criminal case.          B.           Refusal to Define Reasonable Doubt                       __________________________________                       Cassiere, Pezzullo, and Dolber challenge the  court's          denial of Dolber's request for an instruction defining reasonable          doubt.       In United  States v. Olmstead, 832 F.2d 642 (1st Cir.                          __________________________          1987),  cert. denied, 486 U.S. 1009 (1988), we analyzed in detail                  ____________          the  need for instructing the  jury on the  meaning of reasonable          doubt.  We explained that "[m]ost efforts at clarification result                                         -43-                                          43          in further obfuscation of the concept," id. at 645, and held that                                                  ___          "an  instruction which  uses the  words reasonable  doubt without          further  definition adequately  apprises the  jury of  the proper          burden of proof.  This does not mean, of course,  that the phrase          can be buried  as an aside in the [jury charge]." Id. at 646.  In                                                            ___          essence, we concluded  that the  district court was  in the  best          position  to  determine  whether,  and  if   so  how,  to  define          reasonable  doubt.  See also Littlefield, 840 F.2d at 146; United                              ________ ___________                   ______          States v. Rodriguez-Cardona, 924 F.2d  1148, 1160 (1st Cir.) ("We          ___________________________          have  emphasized  in  the  past,  and  do  so  again  here,  that          reasonable  doubt does not  require definition."),  cert. denied,                                                              ____________          112 S. Ct. 54 (1991).                       There   is  no  suggestion  that   the  reference  to          reasonable doubt was "buried  as an aside" in the  court's charge          to the jury.  To the contrary, the court instructed the jury that          "should  there be any  reasonable doubt of  any essential element          which the government has to prove  as to any of these specific 16          charges,  then the  person or  persons so  charged must  have the          benefit of that reasonable  doubt and cannot be convicted  on the          charge or  charges."  In  its instructions,  the court  mentioned          "reasonable doubt" twenty-four more times.                       The court  did not abuse  its discretion in  refusing          to define reasonable doubt.                       Relying upon Judge Torruella's  concurring opinion in          Littlefield in which he stated that "I am of the opinion that the          ___________                                         -44-                                          44          failure to grant an instruction explaining the term 'proof beyond          a  reasonable doubt'  is  an error  of constitutional  dimension,          striking  at the very heart of the presumption of innocence," 840          F.2d at 151,  the defendants  urge this court  to reconsider  the          issue  en banc.    In view  of  this court's  settled  precedent,                 _______          however,   this  panel   sees   no  occasion   to  suggest   such          reconsideration by the full court.          C.           Failure to Give a Maniego Instruction                       _____________________________________                       In  United States  v. Maniego,  710 F.2d  24, 28  (2d                           _________________________          Cir. 1983), the  Second Circuit approved  the trial court's  jury          instruction "that an attorney is not held to a higher standard of          conduct, or  legal obligation, to verify  independently the truth          of  the information  given by  a client."   In  United  States v.                                                          _________________          Piccianana,  788  F.2d  39 (1st  Cir.  1986),  we  held that  the          __________          district  court properly  refused the  defendant's request  for a          Maniego instruction because "the government does not try to raise          _______          an inference that Lucid should be held to a  higher standard than          normal, nor  did its questions have the effect of raising such an          inference."   Id. at 46.   Lucid,  an attorney, was  convicted of                        __          aiding  and abetting  Picciandra  in evading  income  taxes.   He          argued  that  a  Maniego  instruction was  required  because  the                           _______          government had  suggested that  Lucid was  culpable in not  going          beyond what his client had told him.                         Cassiere  and  Pezzullo  did not  request  a  Maniego                                                                     _______          instruction at trial and claim on appeal that the court committed          plain error in not  giving such an instruction.   They apparently                                         -45-                                          45          interpret  the  Maniego  instruction  as  required  whenever  the                          _______          government seeks to "raise an inference that the defendant should          be held to a standard higher than normal because of his status as          a lawyer and his  position as a former prosecutor."   The Maniego                                                                    _______          instruction, however, is more limited; it deals with the question          whether a  lawyer is to be  held to a higher  standard of conduct          "to  verify independently the truth of the information given by a          client."  Maniego, 710 F.2d at 28.                    _______                       In  the present  case, the  charges against  Cassiere          and  Pezzullo were  not  that they  failed  to check  further  on          information their clients (the lenders)  had given them, but that          they  defrauded their  clients  by failing  to disclose  the land          flips that inflated the sales prices of the mortgaged properties.          The district  court  cannot be  faulted,  and certainly  did  not          commit plain  error, because, in a case involving a significantly          different  issue  from  Maniego,  it  failed to  give  a  Maniego                                  _______                           _______          instruction that the defendants had not requested.                       In  any event,  the record  does  not show  that  the          government  sought  to  hold   Cassiere  or  Pezzullo  to  higher          standards  because of  their status  as attorneys.   Rather,  the          government  introduced  evidence  of  Cassiere's  and  Pezzullo's          services as  attorneys representing the lending  institutions and          the fiduciary duty they owed to those lenders because those facts          were central to  understanding their  roles in the  scheme.   See                                                                        ___          United  States v.  Kaplan,  832 F.2d  676,  683 (1st  Cir.  1987)          _________________________          (Maniego instruction  not required where the  "prosecutor did not           _______                                         -46-                                          46          attempt to create  the impression that  [the attorney] should  be          held  to a  higher standard  of care"  and where  comments during          trial about the defendant's status as an attorney  "were directed          towards [defendant's] role (as a lawyer) which was central to the          scheme"), cert. denied, 485 U.S. 907 (1988); Picciandra, 788 F.2d                    ____________                       __________          at 46.                       As  noted, the court  instructed the jury that "it is          not a crime  simply to be careless or sloppy  in discharging your          duties as an attorney or an appraiser.  That may  be malpractice,          but it's not  a crime."  There was no plain error in the district          court's failure to give a Maniego instruction.                                    _______                   VI.  The district court's refusal to give Dolber                a downward adjustment under the Sentencing Guidelines                       United States Sentencing Guideline Section 3B1.2(b)            provides  that if the defendant  "was a minor  participant in any          criminal activity," the offense level  should be decreased by two          levels.    Dolber contends  that  the  district court  improperly          refused to give her such a downward adjustment.                       "We review  the trial court's  determination of  role          in  the offense only  for clear error."   United States v. Panet-                                                    _______________________          Collazo, 960 F.2d 256, 261 (1st Cir.), cert. denied sub nom. Diaz          _______                                _____________________ ____          v. United States,  113 S. Ct.  220 (1992).   Since a ruling  on a          ________________          downward  adjustment  is  highly  fact specific,  we  give  great          deference  to the trial court's action.  United States v. Ocasio,                                                   _______________________          914 F.2d 330, 333 (1st Cir. 1990).                       At  the   sentencing  hearing,  the  district   court          explained: "How do I justify calling her a minor participant when                                         -47-                                          47          the evidence seems fairly clear that she knew what she was  doing          and she knew she was  acting inappropriately here repetitively? .          .  .  .   She  seems  key to  the  successful  operation of  this          fraudulent scheme, just like an attorney is."  The lenders relied          on  her inflated appraisals  in making their  mortgage loans, and          without those appraisals the scheme might not have succeeded.           Although DeNunzio, Monteiro, and Cassiere were more culpable than          Dolber,  the straw  buyers who  were Dolber's  co-defendants were          relatively  minor cogs  in  the scheme  to  defraud the  lenders.          Thus,   Dolber   was  not   "less   culpable   than  most   other          participants."   U.S.S.G.   3B1.2, comment.  (n.3).   The court's          denial of a downward adjustment was not clear error.             Affirmed.          ________                                         -48-                                          48
