
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1845                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 EVANGELIST LACROIX,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               William  E.  Brennan,  with  whom Timothy  I.  Robinson  and               ____________________              _____________________          Brennan, Caron, Lenehan & Iacopino were on brief, for appellant.          __________________________________               John D.  Chapman, Trial Attorney, Fraud  Section, U.S. Dep't               ________________          of Justice, with whom Paul Gagnon, United States Attorney, was on                                ___________          brief, for appellee.                              _________________________                                    June 27, 1994                              _________________________                    SELYA, Circuit Judge.   This sentencing appeal provides                    SELYA, Circuit Judge.                           _____________          an opportunity to clarify the operative standards for identifying          relevant  conduct under  U.S.S.G.   1B1.3(a)(1)(B) (Nov.  1993).1          We seize the  opportunity and,  in the end,  affirm the  sentence          imposed below.          I.  BACKGROUND          I.  BACKGROUND                    For many years, defendant-appellant  Evangelist Lacroix          earned his livelihood as a building subcontractor in southern New          Hampshire.    He  became  acquainted with  the  brothers  Zsofka,          Matthew and Lazlos, who, through entities known as ZLM Realty and          101 Realty  (the Zsofka entities),  planned to develop  a sizable          single-family residential  real estate complex  know as  "Sunview          II."   In  late  1985, appellant  and  Matthew  Zsofka  (Zsofka),          together with  Zsofka's construction foreman, John  Lee, formed a          corporation, Alpha Construction Company,  to serve as the general          contractor for  Sunview II.  Appellant  became Alpha's president,          though by all accounts Zsofka retained ultimate control.                    Construction and sales proceeded apace until the summer          of  1987, when  demand  began to  slacken.   Alpha  responded  to          adversity by retaining a marketing  agent, Horns of New Hampshire          (HNH),   a  firm  headed  by  Richard  Horn.    Zsofka  and  Horn                                        ____________________               1Because  the case  sub judice  involves a  sentence imposed                                   ___ ______          under the June 15, 1988 edition of the sentencing guidelines, see                                                                        ___          infra Part II, all  references herein are to that  edition unless          _____          otherwise  noted.    Nonetheless,  the reasoning  and  method  of          analysis that  we propose for handling  accomplice attribution in          the relevant conduct context are fully applicable to  the current          version  of the  controlling guideline,  U.S.S.G.  1B1.3(a)(1)(B)          (Nov. 1993).                                          2          masterminded an  illegal scheme  that enabled their  companies to          market and sell roughly 90 homes over the following two years.                    The conspirators' plan  was seductively  simple:   they          secretly gave money,  secured by a late-filed second mortgage, to          any would-be homeowner who lacked the wherewithal for the minimum          down  payment required by the prospective purchase-money mortgage          lender (usually the Dime Savings Bank).                    Appellant personally  handled 31  closings at  which he          falsely  represented,  both  orally   and  in  writing,  that  no          undisclosed financing arrangements existed.  Appellant knew these          statements to be apocryphal when made.  The other 60-odd closings          were handled  in much  the same  fashion by one  or the  other of          appellant's  coconspirators.  The transactions were structured in          such a way that, on paper, Alpha conveyed the houses, but not the          land, to the buyers.   The company received in  excess of $37,000          at  every  closing.   These proceeds  enabled Alpha,  among other          things,  to assist the Zsofka entities in funding the clandestine          second mortgages.                    After  Zsofka  and  Horn  hatched  the  plot, appellant          attended  weekly  staff  meetings  at  which  all  the  closings,          including those  handled by others, were  discussed and approved.          At no fewer than three of these meetings Zsofka preached to those          present, appellant  among them,  about the importance  of keeping          all secondary financing hidden from the first mortgagees.  Zsofka          also gave instructions  on how  best to  accomplish this  furtive          feat.                                          3                    During the under-three-year period  when the scheme was          velivolant, appellant  drew a total of  approximately $385,000 in          salary from Alpha.  In sum, as a  part-owner and salaried officer          of Alpha,  appellant  participated  in, or  was  present  at  the          discussion of,  every transaction, profited  at least  indirectly          from each sale,  and stood to gain more money  later (when and if          the buyers repaid the second mortgages).                    Over time, many  of the borrowers proved unable  to pay          the first  mortgages, resulting  in widespread foreclosures  at a          net  cost to  the  Dime Savings  Bank  in excess  of  $2,800,000.          Losses  of  this magnitude  are seldom  unremarked.   In  1992, a          federal grand  jury returned  a 102-count indictment  against the          three Alpha principals and four persons associated with HNH.  The          indictment  charged   appellant  with  conspiracy  to  defraud  a          federally insured financial institution in violation of 18 U.S.C.            371, and with various substantive offenses, including 12 counts          of bank  fraud, 18 U.S.C.    1344, and 12 counts  of making false          statements  to  a  federally  insured  financial institution,  18          U.S.C.    1014.   After a  17-day trial,  the jury  announced its          inability to reach agreement on  the 24 counts charging appellant          with the  commission of  substantive offenses,2 but  nevertheless          found him guilty of conspiring to defraud the Dime Savings Bank.          II.  SENTENCING AND ASSIGNMENTS OF ERROR          II.  SENTENCING AND ASSIGNMENTS OF ERROR                    In July  1993, the  trial judge convened  a disposition                                        ____________________               2The 24 specific offense counts have since been dismissed on          motion of the prosecution.                                          4          hearing.   Apparently fearing  potential ex post  facto problems,                                                   __ ____  _____          the judge, without objection, consulted the sentencing guidelines          that  had been in  effect at the time  the conspiracy wound down,          namely,  the June  15,  1988  edition.    See  United  States  v.                                                    ___  ______________          Harotunian, 920  F.2d 1040,  1041-42 (1st Cir.  1990) (explaining          __________          that  a sentencing court should apply the guidelines in effect on          the date of  sentencing unless  doing so will  implicate ex  post                                                                   __  ____          facto concerns);  United States  v. Arboleda, 929  F.2d 858,  871          _____             _____________     ________          (1st Cir. 1991)  (stating that,  if the guidelines  in effect  at          sentencing  are  not  used,  then  members  of  a  conspiracy are          ordinarily "subject to the sentencing guidelines in effect at the          time of the completion of the conspiracy").                    Starting with a base offense level of six, see U.S.S.G.                                                               ___           2F1.1(a),  the  judge  added  ten  levels  on  the  theory  that          appellant shared responsibility for inflicting losses of at least          $2,000,000   (but   less    than   $5,000,000),   see    U.S.S.G.                                                            ___           2F1.1(b)(1)(K), and  then added two incremental  levels for more          than  minimal  planning,  see  U.S.S.G.   2F1.1(b)(2)(A).   These                                    ___          calculations yielded an adjusted offense level of 18, which,  for          a first offender, produced a  guideline sentencing range (GSR) of          27-33 months.  The court imposed an incarcerative sentence at the          nadir of the range.                    This appeal spotlights the court's determination of the          aggregate losses  properly attributable to Lacroix.   Noting that          the judge  counted transactions handled by  his coconspirators as          "relevant  conduct" under U.S.S.G.   1B1.3(a)(1), and, therefore,                                          5          tagged him with the  entire loss suffered by the  defrauded bank,          Lacroix assigns  error.   He contends  that the  sentencing court          misconceived the applicable  test for  relevant conduct,  mounted          too shallow an inquiry into the subject, and, in all events, that          the  court  found  the  facts  in  a   quixotic  manner,  thereby          misapplying the test.                    Appellant's   first  contention  poses  a  question  of          guideline  interpretation,  which sparks  de  novo  review.   See                                                    __  ____            ___          United States v.  DeLuca, 17 F.3d  6, 7 (1st Cir.  1994) (holding          _____________     ______          that, when "an  appeal raises a  purely legal question  involving          the proper interpretation of the sentencing  guideline, appellate          review is plenary"); United States v. St. Cyr, 977 F.2d 698,  701                               _____________    _______          (1st Cir.  1992) (similar).   Appellant's second  contention also          poses  a pure question  of law and is,  therefore, to be reviewed          under  the same  standard.   Appellant's third contention  is cut          from  different cloth;  it  hinges on  a factbound  determination          under the applicable guideline,  thus evoking clear error review.          See United  States v. Bradley, 917 F.2d 601, 605 (1st Cir. 1990);          ___ ______________    _______          see also  United States v.  Brandon, 17  F.3d 409, 458  (1st Cir.          ___ ____  _____________     _______          1994) (holding  that valuation of losses  for sentencing purposes          must be  reviewed under the  clear error standard),  petition for                                                               ____________          cert. filed (U.S. May 16, 1994) (No. 93-9135).          ___________          III.  FORMULATING THE RELEVANT CONDUCT INQUIRY          III.  FORMULATING THE RELEVANT CONDUCT INQUIRY                    It is beyond serious  question that the losses stemming          from the 31 transactions  closed by appellant constitute relevant                                          6          conduct under  U.S.S.G.  1B1.3(a)(1).3   Less obvious  is whether          the remaining transactions, approximately 60 in number, closed by          coconspirators, may  be attributed to  him.  This  appeal centers          around appellant's insistence that the court below misinterpreted          the  test  governing  what  the Third  Circuit  aptly  has called          "accomplice attribution," see United  States v. Collado, 975 F.2d                                    ___ ______________    _______          985,  990 (3d Cir. 1992), by taking  too permissive a view of the          test's foreseeability prong.                         A.  The Accomplice Attribution Test.                         A.  The Accomplice Attribution Test.                             _______________________________                    The accomplice attribution test is restated in the case          law with great  frequency, but rarely in  quite the same form  or          with quite the same emphasis.  Thus, our perlustration must start          with the guideline itself.                                        ____________________               3U.S.S.G.   1B1.3(a)(1)  has  always encompassed  both  acts          performed  personally   by  a   defendant  and  acts   of  others          attributable  to  that  defendant   as  relevant  conduct.    The          barebones 1988 version, applied by the court below, treated these          two types of  relevant conduct  in separate clauses  of the  same          provision, defining  relevant conduct as "all  acts and omissions          committed or aided and abetted by the defendant, or for which the          defendant would  be otherwise accountable .  . . ."   In the most          recent version  of the guidelines, the taxonomy  is elaborated at          greater length, and the two types of relevant conduct are treated          in    separate    provisions,    namely,    1B1.3(a)(1)(A)    and           1B1.3(a)(1)(B).  The category designed to include the first type          of  relevant  conduct    the  defendant's  own  acts    has  been          rephrased  to make clear that it includes "all acts and omissions          committed,   aided,   abetted,  counseled,   commanded,  induced,          procured, or willfully  caused by  the defendant."   We need  not          dwell  on  this  linguistic  change,  since  the  acts  committed          personally by  Lacroix  constitute  relevant  conduct  under  any          conceivable interpretation of  the guidelines,  past or  present.          However, the Commission's clarification of the second category of          relevant  conduct     the  acts  of others  attributable  to  the          defendant   is significant  to the task at hand,  and, therefore,          we discuss  it at some  length, see infra  note 4 &  accompanying                                          ___ _____          text.                                          7                    In  its  current iteration,4  the  applicable guideline          states that relevant conduct includes "all reasonably foreseeable          acts and  omissions  of  others  in furtherance  of  the  jointly          undertaken criminal activity, that occurred during the commission          of the offense of conviction, in preparation for that offense, or          in the  course of attempting to avoid detection or responsibility          for  that   offense."    U.S.S.G.   1B1.3(a)(1)(B)  (Nov.  1993).          Reading the  1988  version of  section  1B1.3(a)(1) in  light  of          subsequent clarifying  amendments to  both the guideline  and its          commentary,  we  understand  the  Sentencing Commission  to  have          mandated  a two-part  inquiry for  accomplice attribution  in the          relevant  conduct  milieu.    First, the  sentencing  court  must          determine  what acts and omissions  of others were in furtherance          of the  defendant's jointly  undertaken criminal activity.   This          task requires  the court to  ascertain what activity  fell within          the  scope of the specific conduct and objectives embraced by the          defendant's agreement  (whether explicit or tacit).   Second, the          court must  determine to what  extent others' acts  and omissions          that were in furtherance  of jointly undertaken criminal activity          likely  would have  been foreseeable  by a  reasonable person  in                                        ____________________               4The Sentencing Commission amended U.S.S.G.   1B1.3(a)(1) in          1989 and again  in 1992.  See  U.S.S.G. App. C, Amends.  78 & 439                                    ___          (Nov. 1993); see also Collado, 975 F.2d at 991-92 (analyzing 1989                       ___ ____ _______          amendment);  United States v.  O'Campo, 973 F.2d  1015, 1023 n.6,                       _____________     _______          1024  nn.  8-9,  1025  n.10  (1st  Cir.  1992)  (discussing  both          amendments).    Because the  Sentencing  Commission  has labelled          these  amendments  as  "clarifying"  in nature,  rather  than  as          revisionary, they may be  taken into account retrospectively, not          only by  the sentencing  court, see U.S.S.G.   1B1.11(b)(2) (Nov.                                          ___          1993),  but also on appeal, see United States v. Valencia-Lucena,                                      ___ _____________    _______________          988 F.2d 228, 234 n.5 (1st Cir. 1993).                                          8          defendant's shoes at the time of his or her agreement.5                    We think it is important  to emphasize that the vantage          point  for  the  foreseeability  judgment  is  the  time  of  the          defendant's agreement    not  necessarily the time  he personally          undertook  the performance of  criminal activity, or  the time of          his entry into the conspiracy.  Siting the vantage  point in this          way has  at least  two salient  implications.  For  one thing,  a          court  examining relevant  conduct may  attribute to  a defendant          acts  committed by his accomplices prior to the commission of his          own acts, so long as they occur subsequent to his agreement.  For          another  thing,  because a  single  defendant  may make  multiple          agreements or expand an existing agreement, a defendant sometimes          may  be chargeable  with losses  arising out  of conduct  that he          could not have foreseen at the time he entered the conspiracy, so                                        ____________________               5We  have   considered  the  possibility  that   the  latest          reformulation  of application  note 2, U.S.S.G.   1B1.3, comment.          (n.2)  (Nov. 1993), mandates  a compound finding,  such that, for          "conduct" to be "relevant," the accomplice's act would have to be          "in furtherance of activity  within the scope of agreement."   We          reject this refinement for  two reasons.  First, the  language of          the guideline itself refers only to the concepts of "furtherance"          and "foreseeability."   Second,  application note  2,  read as  a          whole, appears  to use  "in furtherance"  and "within  the scope"          interchangeably    a  practice consistent  with earlier  usage in          both  the commentary  and  the case  law.   See,  e.g.,  U.S.S.G.                                                      ___   ____           1B1.3,  comment. (n.1) (Nov. 1991) (stating, within the space of          a  few lines,  that  conduct  for  which  a  defendant  would  be          otherwise accountable includes conduct of others "in  furtherance          of the execution of the jointly undertaken criminal activity that          was   reasonably  foreseeable"  and  excludes  conduct  that  was          "neither within  the scope of  the defendant's agreement  nor was          reasonably foreseeable");  United States v. Garcia,  954 F.2d 12,                                     _____________    ______          15-16 (1st Cir.  1992) (similar);  see generally  Paul J.  Hofer,                                             ___ _________          Implications  of  the  Relevant  Conduct Study  for  the  Revised          _________________________________________________________________          Guideline,  4 Fed. Sent. R. 334, 335 (1992) (discussing confusion          _________          of the terms "furtherance" and "scope").                                          9          long as such conduct was foreseeable at the time that he signaled          his  agreement  to  the  expanded  scope  of  jointly  undertaken          criminal activity embracing such conduct.                    In  this case, the inquiry may be truncated.  There has          never  been any  suggestion  that the  60-something  transactions          closed by  appellant's coconspirators  were outside the  scope of          appellant's   agreement,  or,   put  another   way,   that  those          transactions  were  other  than  in furtherance  of  the  jointly          undertaken criminal  activity.   Consequently, this  appeal turns          exclusively on the issue of foreseeability.                               B.  The Findings Below.                               B.  The Findings Below.                                   __________________                    At the disposition hearing, defense counsel argued that          appellant could not  have foreseen  the conduct of  others.   The          lower  court treated this  argument as  calling into  question an          application of the guidelines.  The court then proceeded to find,          based on the trial evidence and the jury verdict, that:                         Mr.   Lacroix   was  involved   in  this                    conspiracy from  the beginning.  He was aware                    of  the nature and  extent of the development                    that was involved, the development that Alpha                    was involved in.  He was aware of the cost of                    the homes.  He  was aware of the profit  that                    was being received, and he was also receiving                    salaries   from   Alpha,  $173,000   in  '87,                    $187,000 in '88, $25,000 in '89.                         So in  the opinion  of the Court  he was                    well  aware  of  the  magnitude  of  what was                    happening  here, and .  . . under  all of the                    circumstances in which  he was involved,  the                    foreseeability  in  this situation  is really                    inherent in the nature of the conspiracy that                    was  involved here,  which  was  a  marketing                    conspiracy.          IV.  ANALYSIS          IV.  ANALYSIS                                          10                    Appellant says  that the  district court's  findings on          foreseeability are flawed both legally and factually.                                A.  Questions of Law.                                A.  Questions of Law.                                    ________________                    Appellant  raises two predominantly legal challenges to          the court's  formulation  of the  relevant conduct  inquiry.   We          inspect each challenge in turn.                    1.  Mere Awareness.   Appellant seizes on  the district                    1.  Mere Awareness.                        ______________          court's  repeated use of the  word "aware" and  suggests that its          recurrence  betokens a  single-minded  focus  on the  defendant's          knowledge.  This  focus is impermissible, appellant  asseverates,          because a finding of  "mere awareness," in and of  itself, cannot          be   equated  with,   and   does  not   justify,  a   finding  of          foreseeability  in  the sentencing  phase.   Despite  appellant's          citations  to several  cases, his  asseveration begs  the pivotal          question.   Awareness does not  always bear on  foreseeability in          precisely  (or even  roughly) the  same way.   To  understand the          inferences that lawfully can be drawn from awareness in any given          situation,  a  court must  first  assess  the particular  factual          setting and then answer the question:  "Awareness of what?"                    The four cases upon which appellant principally relies,          read carefully,  underscore this necessity.   The first  of them,          United States  v. O'Campo, 973 F.2d  1015, is a case  in which we          _____________     _______          admonished sentencing  judges not  to equate mere  knowledge with          foreseeability    but  we  were referring  specifically to  "mere          knowledge of  historic facts."  Id.  at 1025.  By  this, we meant                                          ___          that the foreseeability of acts performed after defendant's entry                                                    _____                                          11          into  a  conspiracy  could  not  be  established  by  his   "mere          knowledge"  of  acts  performed  prior  to  his  entry  into  the                                           _____          conspiracy.6   See  id.  at  1026;  see  also  United  States  v.                         ___  ___             ___  ____  ______________          Carreon,  11  F.3d  1225,  1234-37 (5th  Cir.  1994)  (discussing          _______          O'Campo).  Since Lacroix was  involved in the instant  conspiracy          _______          from  the start,  the stratagemical  acts of  which he  was aware          necessarily occurred after his entry into  the conspiracy.  Thus,          O'Campo is  inapposite because  it did not  deal with  post-entry          _______          acts.                    The remaining three  cases upon which appellant  relies          advance   the  bland  proposition   that  foreseeability  is  not          dispositively established  by mere awareness of  the existence or                                                       ____________________          illegality  of a conspiracy.  See United States v. Evbuomwan, 992          ___________________________       _____________    _________          F.2d 70, 74 (5th Cir. 1993) (explaining that "mere knowledge that          criminal activity  is taking place is not enough"); United States                                                              _____________          v. Valencia-Lucena, 988 F.2d 228, 234 (1st Cir. 1993) (suggesting             _______________          that individuals may  "know that the agreement they  have entered          is  illegal  but  [nevertheless]  have  no  way  to  foresee  the          magnitude  or  ambition of  the  enterprise");  United States  v.                                                          _____________          Edwards, 945  F.2d 1387,  1393 (7th  Cir. 1991)  (commenting that          _______          "foreseeability  means  more than subjective awareness . . . that          [an  accomplice] headed  a  long-standing  and successful  heroin                                        ____________________               6We note in passing  that the O'Campo court did not say that                                             _______          awareness   of   pre-entry   acts  was   bereft   of  evidentiary          significance  in determining  the  foreseeability  of  post-entry          acts.   The court said  the opposite.   See O'Campo, 973  F.2d at                                                  ___ _______          1026 (stating that "knowledge of . . . prior acts will inform the          judgment about what [defendant] reasonably could have foreseen").                                          12          distribution network"), cert. denied, 112 S. Ct. 1590 (1992).  We                                  _____ ______          find no  fault with these cases   but we caution that the courts'          words cannot be read in a  vacuum.  Awareness, even if limited to          knowledge of  a conspiracy's  unlawfulness, is always  (or almost          always)  relevant to the question of foreseeability   and none of          the cited cases suggest the contrary.                    More importantly, these three  cases do not in  any way          denigrate the possibility that  foreseeability may be established          by  a  different kind  of awareness,  that  is, by  a defendant's          knowledge of the nature and extent of a conspiracy in which he is                    _______________________________________________________          involved.   This, of course,  is exactly the  stripe of awareness          ________          detected by the court below.  It is both good  law and good logic          that  a  defendant's   awareness  of  the  inner  workings  of  a          conspiracy  in which he is participating is germane to, and often          highly probative of, accomplice  attribution.  Although appellant          may  choose  to characterize  such  intimate  knowledge as  "mere          awareness"    a term that we view as verging on the oxymoronic in          a case like this one    he is fishing  in an empty stream.   Such          knowledge  frequently  will  suffice  to  prove  the  defendant's          ability to foresee the acts of coconspirators.  See, e.g., United                                                          ___  ____  ______          States  v. Roberts, 14 F.3d 502, 525 (10th Cir. 1993) (concluding          ______     _______          that  a  defendant's  knowledge that  the  accomplice  habitually          carried  a  firearm  justified  a finding  that  defendant  could          reasonably  foresee that  accomplice would  carry the gun  on the          occasion in question).                    "Foreseeability"  is  conventionally  defined   as  the                                          13          "ability to see or know in advance."  Black's Law Dictionary  649                                                ______________________          (6th  ed. 1990).  Viewed in that light, a "reasonably foreseeable          act"  might well be  regarded as an act  that a reasonable person          who knew everything  that the  defendant knew at  the time  would          have  been  able  to  know  in advance  with  a  fair  degree  of          probability.    Giving  due  weight to  the  intimate  connection          between knowledge  and foreseeability,  we conclude that  in this          case it was both permissible and advisable for the district court          to consider appellant's awareness  of the conspiracy's nature and          scope en  route to  an ultimate determination  on foreseeability.          The  district court,  therefore, did  not misconstrue  either the          elements of the accomplice  attribution test or the way  in which          the test should operate.                    2.    The  Nature  of the  Inquiry.    Appellant's next                    2.    The  Nature  of the  Inquiry.                          ____________________________          argument is pitched in a somewhat different direction.  He points          to a Third Circuit directive that instructs district courts, when          considering  accomplice  attribution  in  the   relevant  conduct          context, to  embark upon "a searching  and individualized inquiry          into the circumstances  surrounding each defendant's  involvement          in the conspiracy."  Collado,  975 F.2d at 995.  He  then invites                               _______          us to adopt this  standard and calumnizes the district  court for          mounting an inquiry that supposedly fell short of it.  We believe          that this argument is largely an exercise in semantics.                    In  the  first  place,  the invitation  that  appellant          extends  is  wholly  gratuitous.  We already  have  endorsed  the          principle  of  a  searching  and individualized  inquiry  in  the                                          14          relevant conduct  context.  See, e.g., United  States v. Balogun,                                      ___  ____  ______________    _______          989 F.2d 20, 22  (1st Cir. 1993) (holding that a sentencing court          ordinarily must make  specific, individualized findings regarding          foreseeability for each defendant).7   Indeed, the Third Circuit,          in constructing the rule appellant urges us to "adopt," cites our          opinion in United States v. Garcia, 954 F.2d 12  (1st Cir. 1992),                     _____________    ______          as a model.  See Collado, 975 F.2d at 995.  The mere fact that we                       ___ _______          have  employed  slightly  different phraseology  than  the  Third          Circuit  is of no consequence.   The adjectives  used in Collado,                                                                   _______          while concinnous, are neither talismans nor words of art.                    The second  half  of appellant's  argument  is  equally          meritless.   Here,  the  district  court honored  the  spirit  of          Balogun by making extensive findings regarding the foreseeability          _______          of  others' acts from appellant's vantage point.  Since the court          presided  over a 17-day trial and based its findings, inter alia,                                                                _____ ____          "on all of the evidence that the Court heard during the course of          the trial," it strains credulity to describe the inquiry below as          insufficiently searching.   We are  hard pressed to  imagine what          more the district court might have  done   and appellant, for all                                        ____________________               7In  Balogun,  we  mused  that  there  might  be a  possible                    _______          exception to this rule  in the rare case where  foreseeability is          "inherent  in the nature" of a particular conspiracy. 989 F.2d at          22.   We  have  yet to  probe  the  parameters of  this  possible          exception, nor do we need to do  so today.  We note only that the          district   court's  seemingly  misplaced  allusion  to  Balogun's                                                                  _______          "inherent  in  the nature"  language, see  supra  at p.  10, does                                                ___  _____          little to shed light upon the court's conclusions.  Consequently,          we  rely  on  the  district judge's  individualized  findings  in          respect   to  foreseeability,   and   treat   his  comment   that          foreseeability "is really inherent in the nature of [a marketing]          conspiracy" as mere surplusage.                                          15          his lamentations, has not advanced a single concrete suggestion.                                B.  Questions of Fact.                                B.  Questions of Fact.                                    _________________                    Appellant's  fallback  position is  that,  even  if the          district  court applied  the  proper legal  rules in  determining          relevant conduct,  its findings  of fact were  clearly erroneous.          The facts  of the case,  taken without embellishment,  expose the          fallacy in appellant's position.                    To  be sure, Lacroix was neither the progenitor nor the          moving  spirit  of the  conspiracy, but  he  helped to  found it,          retained  a proprietary  interest in it,  and played  an integral          part in its operation.   Moreover, he served as the  titular head          of the firm that  oversaw the construction, marketing, financing,          and sale of every  home.  The record supports   indeed, virtually          compels     an  inference  that  appellant  understood  from  the          inception  that the object of the conspiracy was to sell homes by          hook or by crook.  Taking the district court's explicit findings,          and  fleshing them out with  details derived from  the record, we          understand the  court to have  concluded that appellant  knew all          along the sums involved in each transaction and the  conspiracy's          method of  operation    selling houses  to unqualified  buyers by          providing, and then fraudulently concealing, secondary financing.          Because  any reasonable  person in  appellant's position,  at the          time  of his agreement, would have recognized that ninety or more          homes might be sold  in this corrupt fashion, the court below did          not  err in  concluding that  all the  losses resulting  from the                                          16          sales were fairly attributable to Lacroix.8                    Appellant  cannot  deny this  analysis  in  any of  its          particulars,  and, in  fairness, does  not really  try to  do so.          Instead, he seeks  to escape  the force of  the district  court's          reasoning  by introducing  three  extraneous considerations.   At          bottom,  this  endeavor  reflects  a  basic  misunderstanding  of          sentencing principles.                    First,   appellant   insists   that   a    finding   of          foreseeability  is undermined  by the  jury verdict.   We  do not          agree.  The jury  did not exonerate appellant in  connection with          the substantive  offense counts; rather, it  simply deadlocked on          these counts.    Its  verdict,  therefore, did  not  resolve  the          contested issues either way, but left them up in the air.                    Moreover, the method of the  guidelines is to leave  to          the  sentencing judge,  not the  jury, the determination  of what          "conduct"  is  "relevant"  to  the fashioning  of  a  defendant's          sentence.   See United States v. Limberopoulos, ___ F.3d ___, ___                      ___ _____________    _____________          (1st Cir.  1994) [No. 92-1954, slip op. at 15]; see also U.S.S.G.                                                          ___ ____           6A1.3.  Thus, even a trial jury's refusal to find that a certain          fact has  been proven beyond a reasonable  doubt will not bar the          district  court  from  making  precisely  that  same  finding  at                                        ____________________               8In our view,  this is  an especially potent  case for  such          attribution.  Above and  beyond what the government had  to prove          in respect  to that issue,  appellant could easily  have foreseen          that the  coconspirators' method of  operation carried with  it a          heightened chance  of default  and foreclosure.   Thus, appellant          could foresee  the consequences  of the illegal  marketing scheme          and the magnitude of  the attendant financial risks to  which the          bedeviled mortgage lender might fall prey.                                          17          sentencing, under a  preponderance-of-the-evidence standard.   On          this basis, we have held squarely that a defendant's acquittal on          a  particular  count  does   not  limit  the  sentencing  court's          flexibility in  considering the same underlying  facts in respect          to the count  of conviction.  See United States  v. Mocciola, 891                                        ___ _____________     ________          F.2d 13, 16 (1st Cir. 1989).  A fortiori, the case for permitting                                        __________          judges free rein to make whatever findings the record can support          is airtight where,  as here,  trial on the  disputed counts  ends          with a hung jury rather than an acquittal.                    Second,  appellant presents  himself as  a babe  in the          woods, an  uneducated carpenter  in the company  of sophisticated          entrepreneurs.  For what this jeremiad may be worth insofar as it          bears  upon  accomplice  attribution,  it was  tendered  to,  and          rejected by, the  district judge.9   We discern  no clear  error.          See, e.g.,  United States v.  Ruiz, 905 F.2d  499, 508 (1st  Cir.          ___  ____   _____________     ____          1990) (acknowledging that "where there is more than one plausible          view of  the circumstances,  the sentencing court's  choice among          supportable alternatives cannot be clearly erroneous").                    Third, and relatedly, appellant  harps on the fact that          Zsofka and  Horn called the tune, to which he merely danced.  But          the concepts of "relevant conduct" and "role" are distinct in the          world  of the sentencing guidelines.  See United States v. Lilly,                                                ___ _____________    _____          13 F.3d 15, 18-19 (1st  Cir. 1994).  Whereas the former  helps to                                        ____________________               9We note in  passing that the  judge sentenced appellant  at          the  lowest point  in  the GSR,  a  determination that,  to  some          extent,  may have taken into account appellant's supposed lack of          sophistication.                                          18          gauge the gravity of an offense, the latter helps to measure  the          offender's culpability.   See  id.   Hence, the  district court's                                    ___  ___          attribution  of the entire  loss to appellant  is not  in any way          inconsistent  with  the  fact that  he  may  have  played only  a          supporting role.10                    We need go no further.  The short of it is that none of          the  factors  upon which  appellant  dwells cast  doubt  upon the          district court's ascertainment of the amount of loss attributable          to appellant  in connection with the  jointly undertaken criminal          activity.  Consequently, we cannot say that the lower court erred          in constructing the sentencing calculus.          Affirmed.          Affirmed.          ________                                        ____________________               10Of  course, the  guidelines permit  a sentencing  court to          reduce  a  defendant's offense  level  for  "minor" or  "minimal"          participation in the offense of conviction.  See U.S.S.G.  3B1.2.                                                       ___          Appellant did  not seek such an adjustment  below and, therefore,          cannot  challenge the lack of such an  adjustment on appeal.  See                                                                        ___          United States v. Dietz, 950 F.2d  50, 55 (1st Cir. 1991) (holding          _____________    _____          that sentencing arguments not seasonably advanced below cannot be          introduced for the  first time on  appeal).  At  any rate,  while          others  may  have  been the  ringleaders,  we  see  no basis  for          characterizing appellant's role as "minor" or "minimal."                                          19
