
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 95-1395                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 MICHAEL D. SHADDUCK,                                Defendant, Appellant.                                                                                      ____________________        No. 95-1396                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 ANDREA D. SHADDUCK,                                Defendant, Appellant.                                                                                      ____________________        No. 96-1342                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 MICHAEL D. SHADDUCK,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Morris E. Lasker,* Senior U.S. District Judge]                                          __________________________                                                                                      ____________________                                    ____________________             *Of the Southern District of New York, sitting by designation.                                        Before                                 Cyr, Circuit Judge,                                      _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                                                                      ____________________             James B. Krasnoo with whom Law Offices of James B. Krasnoo was on             ________________           _______________________________        brief for appellants.             Mark J.  Balthazard, Assistant United States  Attorney, with whom             ___________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                                                                      ____________________                                    April 24, 1997                                                                                      ____________________                                          2                    CYR,  Circuit Judge.    Appellants  Michael and  Andrea                    CYR,  Circuit Judge                          _____________          Shadduck  challenge  the  judgments of  conviction  and  sentence          entered against them for  bankruptcy fraud, see 18 U.S.C.    152,                                                      ___          following their four-day  jury trial.  We affirm the convictions,          but vacate, in part, the  sentence imposed upon Michael  Shadduck          and remand for resentencing.                                            I                                          I                                     BACKGROUND1                                     BACKGROUND                                     __________                    Appellant  Michael  Shadduck  ("Shadduck"), a  self-em-          ployed insurance salesman, invested in several insurance policies          and a  pension fund  with Guardian Investor  Services Corporation          ("Guardian").  Three days before the Shadducks filed  their joint          chapter 11 petition on  June 4, 1993, Shadduck had  requested the          maximum loan  advances available on four  Guardian life insurance          policies.   The chapter 11 petition,  unaccompanied by schedules,          listed liabilities  totaling $2,269,381.13 to the  twenty largest          unsecured creditors.                     On the  day the  joint chapter  11 petition  was filed,          Mrs.  Shadduck drew  an $8,000 check  on their  personal checking          account and  endorsed it over to her  husband.  Three days later,                                        ____________________               1Viewing the  evidence in  the light  most favorable to  the          verdicts, we recite the  facts as the jury reasonably  could have          found  them.  United  States v. Josleyn,  99 F.3d 1182,  1185 n.1                        ______________    _______          (1st  Cir. 1996), cert. denied, 117 S.  Ct. 959 (1997).  We note,                            ____  ______          however,  that  the  record  on appeal  is  woefully  incomplete,          particularly as  it includes no district  court trial transcript.          Of course,  the proponent of a  claim must "bear the  brunt of an          insufficient record  on appeal."  Real v.  Hogan, 828 F.2d 58, 60                                            ____     _____          (1st. Cir. 1987).  See also LaRou v. Ridlon, 98 F.3d 659, 664 n.8                             ___ ____ _____    ______          (1st Cir. 1996).                                          3          four checks totaling $124,383.66 were deposited in a bank account          in the  name of John Shepard, a friend of Shadduck.  Three checks          had been issued to Shadduck by Guardian and  represented portions          of the aforementioned loan proceeds, as well as policy dividends.          The fourth was the  $8,000 check withdrawn by Mrs.  Shadduck from          the joint account three days earlier.                      At the  creditors meeting  on June 14,  Shadduck denied          having made any payment in excess  of $600 to any creditor within          the 90-day period preceding June 4, denied having a bank account,          and disavowed  any beneficial interest either  in insurance poli-          cies or a  pension plan.   Mrs. Shadduck,  who was continuing  to          write checks  on their joint  checking account during  this time,          remained  silent  as her  husband  made these  misrepresentations          under oath.                     Following  the creditors  meeting,  two other  Guardian          checks,  totaling $13,346.01,  payable to  Shadduck and  endorsed          over to Shepard, were deposited in the Shepard account.  Two days          later Shadduck gave Shepard a  $73,900 check, drawn on Shadduck's          Guardian pension plan and endorsed over to Shepard.  At the time,          the Shadduck pension plan account contained $118,339.05.  On July          19,  1993, a $33,517.36 check  was drawn on  the Shadduck pension          plan account, representing  the balance in the pension plan after          the required $10,921.69 withholding for federal income tax.                    On July 1, the  Shadducks filed their bankruptcy sched-          ules, signed the  same day  under penalty  of perjury,  asserting          that  they had no interest in pension plans or insurance policies                                          4          and, further, that  they had  no bank account.   Throughout  this          entire period,  however, Shadduck had  funds in his  pension plan          and Mrs.  Shadduck  continued  to  write checks  on  their  joint          checking account.    Shepard subsequently  drew  checks  totaling          $171,211.12  to Shadduck on September 29 and November 2, 1993, in          amounts mirroring the checks  Shadduck had issued to Shepard  the          previous  June.   Three  of  these  checks, totaling  $17,134.70,          explicitly  noted  that  the proceeds  represented  pension  plan          funds.                      The Shadducks were indicted on January 19, 1994:  he on          four counts,  for concealing assets  and falsely stating  that he          had  no bank  account,  insurance policies,  or pension  plan, in          violation  of 18  U.S.C.    152; she  on one  count,  for falsely          stating she had  no bank  account.  At  trial, Shadduck  admitted          making false statements but nevertheless insisted that he had not          listed  the pension plan funds on the schedules because they were          exempt, even though  he concededly  had failed also  to list  any          pension plan funds as property  claimed exempt.  Shadduck further                                          _______ ______          testified  that the  monies  invested in  the insurance  policies          belonged to  clients who  had requested  that he  invest approxi-          mately  $85,000 in their behalf.   Shadduck admitted making false          statements at the  creditors meeting and on the bankruptcy sched-          ules, but vouchsafed  that his wife had not  known what was going          on.                    After  the jury returned  guilty verdicts  against both          defendants, the district court sentenced Shadduck to twenty-seven                                          5          months' imprisonment,  including enhancements based on  the total          intended loss, see U.S.S.G.    2F1.1(b)(1) (Nov. 1994), violation                         ___          of a judicial order, id.   2F1.1(b)(3)(B), and  defrauding multi-                               ___          ple victims, id.    2F1.1(b)(2)(B).  Shadduck appeals his convic-                       ___          tions  and sentence.   Mrs.  Shadduck, who  was sentenced  to two          years' probation, principally challenges her conviction.2                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          1.   Andrea Shadduck           1.   Andrea Shadduck               _______________                    Andrea Shadduck concedes that she  purchased the $8,000          bank check with funds  drawn from the joint checking  account and          endorsed it  to  her  husband,  that she  signed  the  bankruptcy          schedules  listing no bank account,  and that she remained silent          at the  creditors meeting  while her husband  falsely represented          that they had  no bank  account.  She  nonetheless contends  that          there  was insufficient  evidence that  she intentionally  made a          false statement,  since  her husband  testified  to her  lack  of          knowledge.                     There  was ample  evidence  to support  the conviction.          The  jury  reasonably could  infer  from  all the  circumstances,          especially  the  timing of  the  various  transactions, that  she          possessed the requisite  fraudulent intent.   She drew an  $8,000                                        ____________________               2Although  both appellants  challenge  the    2F1.1(b)(3)(B)          enhancement,  the  district  court imposed  a  downward departure          before sentencing Mrs. Shadduck  to probation.  United  States v.                                                          ______________          Shadduck, 889 F. Supp. 8, 11-12 (D.Mass. 1995).  Thus, no purpose          ________          would  be served by  remanding for resentencing  in these circum-          stances.                                           6          bank check on the unscheduled joint checking account the very day          she  and  her husband  signed and  filed  their joint  chapter 11          petition.   She signed the bankruptcy schedule stating she had no          bank account, yet continued  to draw checks on the  joint account          for  more than  three  months, even  after  her husband,  in  her          presence, falsely denied the existence of any such account at the          creditors meeting.   This circumstantial evidence alone supported          a reasonable  inference  that her  motive  in making  the  $8,000          withdrawal  from the joint checking  account on the  eve of bank-          ruptcy was  to prevent  its  disclosure to  creditors.   Finally,          fraudulent intent  was readily inferable  from the fact  that the          Shadducks  omitted from  their joint  list of  claimed exemptions          only  the property  not elsewhere  disclosed as  assets  on their          schedules.3   Moreover, the jury was free to discredit the excul-          patory  testimony  offered  by  her  husband,  United  States  v.                                                         ______________          Restrepo-Contreras, 942 F.2d 96,  99 (1st Cir. 1991), and  we are          __________________          not  at liberty to presume otherwise, see United States v. Laboy-                                                ___ _____________    ______          Delgado,  84 F.3d 22, 26  (1st Cir. 1996)  (noting that appellate          _______          court must "resolve all disagreement regarding the credibility of          witnesses to the government's behoof").          2.   Michael Shadduck           2.   Michael Shadduck                ________________                                        ____________________               3Mrs. Shadduck also urges us to consider testimony presented          by her counsel  at a postjudgment  hearing to correct  Shadduck's          sentence  pursuant to 28 U.S.C.    2255.   Counsel testified that          the joint  checking account  had been inadvertently  omitted from          the schedules.  In  evaluating a challenge to the  sufficiency of          the  evidence on direct appeal, however, we may consider only the          evidence presented at trial.  See United States v. Laboy-Delgado,                                        ___ _____________    _____________          84 F.3d 22, 26 (1st Cir. 1996).                                           7               a.   Supplemental Jury Instruction4               a.   Supplemental Jury Instruction                    _____________________________                    Shadduck  claims the  jury verdict  was tainted  by the          response to a question submitted by the jury.5  Although Shadduck          would have us isolate the trial court's supplemental instruction,          the law  is clear that it "'must be  viewed in the context of the          overall charge.'"   United States  v. Femia, 57 F.3d  43, 47 (1st                              _____________     _____          Cir.) (quoting Cupp  v. Naughten, 414  U.S. 141, 146-47  (1973)),                         ____     ________          cert. denied,  116 S.  Ct. 349  (1995).   The general  charge had          ____  ______          explained, with respect to  each count, that the jury  would need          to determine whether the alleged false statements and concealment          had been "knowing" and  "fraudulent."  There was no  objection to                                        ____________________               4We "review the  propriety of jury instructions for abuse of          discretion."   United States v.  Mitchell, 85 F.3d  800, 809 (1st                         _____________     ________          Cir. 1996).                 5Shadduck further  complains, for  the first time,  that the          following  comment about the weather caused the jury to hurry its          deliberations:                     Now  it's 3 o'clock in the afternoon.  It's a                    pretty  nasty afternoon  in case  you haven't                    been  able to  see  the weather  in the  jury                    room.  Counsel and I  are willing to stay  as                    long as you wish.   What I normally do  - and                    what  I will  do -  is about 4  o'clock, I'll                    come down and I  would normally excuse you at                    that time  unless the jury or  a majority, at                    least, of the jury  believes that they are so                    close to completing the case that they'd like                    to  stay a little bit  longer.  But if that's                    not the case,  then I will excuse  you to re-                    sume on Monday morning.          There is nothing  in this  comment to suggest  that the jury  was          pressured to rush  its verdicts.   Rather, the  trial judge  made          abundantly clear that he was willing to remain  as long as neces-          sary  that  afternoon  or  to  reconvene  the  following  Monday.                                 __          Moreover,  the defense failed to object to this reasonable proce-          dure.                                           8          the general charge.                    Several hours  after retiring  to deliberate,  the jury          inquired  in writing  whether  there would  be  a change  in  the          ownership of certain  funds invested in an annuity contract under          the  name of  one  Leonard Roy  were the  jury  to find  Shadduck          guilty.   The trial judge  replied that there was  no evidence on          which to base a response to their inquiry and that  they were not          to consider this collateral matter in arriving at their verdicts.          The court added:                     You  should decide  whether you  believe that                    [Shadduck] intentionally made a  false state-                    ment or he did not  make a false statement in                    regard to  this material.  That  is the issue                    before you.          Shadduck objected that  a further instruction was required to the          effect that the jury would need to determine whether Shadduck had          made the  statements "fraudulently."   After explaining  that its          response  was  consistent  with  its earlier  and  more  detailed          charge, the court denied the request.  Later, Shadduck unsuccess-          fully moved for a mistrial on the ground that the response to the          jury  inquiry effectively  had eliminated an  element of  the of-          fense.                    Viewed  in the context of the  entire charge, and given          the  clear  signal from  the trial  judge  that the  jury inquiry          related to a collateral matter not appropriate  for their consid-          eration, the response  was entirely  proper.  It  did nothing  to          disturb, let alone  gainsay, the  very clear  instruction in  the          general  charge; viz., that  the jury must  determine whether the                           ____                                          9          alleged conduct had been  undertaken "knowingly" and "fraudulent-          ly."                         Now,  . . . the  offenses . .  . are al-                    leged to have been done "knowingly and fraud-                    ulently."                         An act or failure  to act is "knowingly"                    done if it's done voluntarily  and intention-                                      ___________  ___ __________                    ally and  not because of mistake  or accident                    ____                    or any other innocent reason.                         The  purpose of requiring  that the gov-                    ernment .  . .  prove that a  defendant acted                    "knowingly" is to insure  that no one is con-                                   __ ______  ____ __ ___ __ ____                    victed because of an  act, or failure to act,                    ______ _______                    due to a mistake or an accident or some - any                    innocent reason.                         An act or failure to act is "fraudulent-                    ly" done if it is done willfully and with the                                           _________ ___ ____ ___                    intent  to  deceive  or cheat  any  creditor,                    ______  __  _______            ___  _________                    trustee or bankruptcy judge.                    _______ __ __________ _____                         An act or failure  to act is "willfully"                    done if it is done voluntarily and intention-                                       ___________ ___ __________                    ally and  with a specific intent  to do some-                    ____ ___  ____ _ ________ ______  __ __ _____                    thing which the law  forbids; that is to say,                    _____ _____ ___ ___  _______  ____ __ __ ___                    for bad purpose  either to disobey or  disre-                    ___ ___ _______                    gard the law.                    ....                         The intent with which an act is done may                    also be  inferred from the nature  of the act                    itself.  Accordingly, intent, willfulness and                    knowledge  are  usually  established by  sur-                    rounding  facts and  circumstances as  of the                    time  the acts  in question  occurred  or the                    events took  place and the  reasonable infer-                    ences to be drawn from them.          (Emphasis added.)  Thus,  the court defined both "knowingly"  and          "fraudulently" through direct reference to  the voluntariness, as          well  as the  general and  specific intent,  animating Shadduck's          conduct.                    Against  the backdrop of this earlier detailed instruc-          tion, we are not persuaded that any significant risk of confusion          arose from the subsequent  umbrella response to the jury  that it          was to decide whether  Shadduck "intentionally" made false state-                                          10          ments.  See United States v. Yefsky, 994 F.2d 885,  899 (1st Cir.                  ___ _____________    ______          1993) (instruction  on "intent,"  rather than  "specific intent,"          held adequate given court's  earlier definition of "willfully" as          encompassing specific intent); United States v. Nichols, 820 F.2d                                         _____________    _______          508,  511 (1st Cir.  1987) (unnecessary  to instruct  on specific          intent "[g]iven  the  extensive  instruction  on  'knowingly  and          willfully' [delivered] moments earlier").               b.   Calculation of Intended Loss (U.S.S.G.   2F1.1)               b.   Calculation of Intended Loss (U.S.S.G.   2F1.1)                    ______________________________________________                    The  district  court  imposed an  eight-level  sentence          enhancement based on  its finding that  Shadduck had intended  to          cause loss  totaling $246,280.   See  U.S.S.G.    2F1.1, comment.                                           ___          (n.7).  ("[I]f  [the] loss  that the defendant  was intending  to          inflict can  be determined,  this figure  will be  used if it  is          greater  than the actual loss.").  On appeal, Shadduck claims for          the first  time that  the loss  calculation,  which included  the          loans obtained  against the  Guardian insurance policies  and the          funds  withdrawn from the pension plan, must be set aside because          those  monies were in all  events exempt under  Bankruptcy Code            522, hence  not subject  to  administration in  bankruptcy.6   As                                        ____________________               6Shadduck further claims, and the  government concedes, that          the  presentence report  ("PSR") initially  "double  counted" the          $8,000  removed  from the  joint  checking  account  the day  the          Shadducks filed  for bankruptcy.  Although  the government claims          that  the error  was  corrected in  an  amended PSR,  the  record          contains no PSR.   In all events, any  such double counting would          have been harmless, since the total-loss category was unaffected.          See  U.S.S.G.    2F1.1(b)(1)(I)  (eight-level  increase  for loss          ___          exceeding $200,000 but less than $350,000).  Thus, addressing the          error, if any, could have no effect on the sentence.   See United                                                                 ___ ______          States  v. Sepulveda, 15 F.3d 1161, 1199 (1st Cir. 1993) (noting,          ______     _________          in context  of drug-quantity calculation, that  "[i]t is unneces-          sary to address an allegedly erroneous sentencing computation if,                                          11          Shadduck  failed to  object  below,  we  review only  for  "plain          error."   United States  v. Carrington,  96 F.3d  1, 6 (1st  Cir.                    _____________     __________          1996),  cert. denied, 65 U.S.L.W. 3648 (U.S. March 24, 1997) (No.                  ____  ______          96-8027); see also Koon v. United States, 116 S. Ct. 2035 (1996);                    ___ ____ ____    _____________          United States v. Olano,  507 U.S. 725, 734 (1993)  ("plain error"          _____________    _____          means "obvious" error); see also Fed. R. Crim. P. 52(b).                                    ___ ____                    The  present  contention   assumes,  contrary  to   our          caselaw,  that property  of the  debtor  neither claimed  nor set          apart as  exempt would not  have been subject  to administration.          See Petit v. Fessenden, 80 F.3d 29, 33 (1st Cir. 1996); Mercer v.          ___ _____    _________                                  ______          Monzack, 53 F.3d 1, 3  (1st Cir. 1995), cert. denied, 116  S. Ct.          _______                                 ____  ______          1317 (1996); see  also 11  U.S.C.   522(l)  (requiring debtor  to                       ___  ____          list property claimed exempt); Fed. R. Bankr. P. 4003(b).  As the          Supreme Court recently held, Bankruptcy  Code   522(l) and  Bank-          ruptcy Rule  4003(b) are  to be  interpreted  in accordance  with          their  literal intendment.  See  Taylor v. Freeland  & Kronz, 503                                      ___  ______    _________________          U.S. 638, 643-45 (1992); see also Mercer, 53 F.3d at 3.                                   ___ ____ ______                    Virtually all property of the debtor, except as provid-          ed in  Bankruptcy Code   541(b),(c)(2)&(d),  becomes "property of          the estate"  by operation of law without  regard to whether it is          listed on  the schedules.   Id.    541(a).    Shadduck has  never                                      ___          argued that these pension  plan monies were not "property  of the                                        ____________________          and  to the extent that, correcting it will not change the appli-          cable offense level").                                          12          estate,"7  but only that they  were not subject  to process under          applicable state law.8                                          ____________________               7Bankruptcy Code   541(c)(2)  excludes from "property of the          estate"  an interest in a  trust subject to transfer restrictions          enforceable under applicable nonbankruptcy law.  See Patterson v.                                                           ___ _________          Shumate,  504 U.S. 753, 757-58  (1992).  Patterson  held that the          _______                                  _________          antialienation  provisions  in  ERISA-qualified plans  constitute          transfer restrictions for    541(c)(2) purposes, hence such plans          are not  "property of the estate."   Id. at 760.   See also In re                                               ___           ___ ____ _____          Yuhas,  104 F.3d 612, 614-16 (3d Cir. 1997) (IRA funds not "prop-          _____          erty of estate");  In re Meehan, 102  F.3d 1209, 1214  (11th Cir.                             ____________          1997) (same).   Not only was this argument not  raised below, but          there  is  no record  evidence,  see supra  n.1,  that Shadduck's                                           ___ _____          pension plan even contained transfer restrictions.               8Nor  does the record on appeal indicate that this claim was          preserved below.  Shadduck contends that Mass. Gen. Laws ch. 235,             34A,  exempts pension  plan funds  which  do not  exceed seven          percent of the debtor's total income  within the five-year period          preceding bankruptcy, and that  Mass. Gen. Laws ch. 175,    119A,          exempts  insurance policies  under  certain conditions.   In  any          event, this argument proves too much.                                           13                    Were  we to  adopt  the regime  advocated by  Shadduck,          property  fraudulently  concealed  throughout  the  course  of  a          bankruptcy proceeding nonetheless  would become exempt by  opera-          tion  of law.9  By  contrast, property duly  claimed exempt by an          honest debtor does not  become exempt by operation of  law unless          no  "party in interest" objects to the exemption claim within the          allotted thirty-day period.  See In re Edmonston, 107 F.3d 74, 76                                       ___ _______________          (1st Cir. 1997);  11 U.S.C.   522(l); Fed. R.  Bankr. P. 4003(b).          Thus, the  argument advanced by Shadduck  would short-circuit the          exemption-claim screening process  explicitly envisioned in  Fed.          R. Bankr. P. 4003(b), which  provides that the thirty-day limita-          tion on objections  to exemption  claims "does not  begin to  run          until  the  debtor  lists  the  'property  claimed  as  exempt.'"          Mercer, 53  F.3d at 3 (quoting  Fed. R. Bankr. P.  4003(b)).  See          ______                                                        ___          also Petit,  80 F.3d at  33 ("Unless and  until a debtor  files a          ____ _____          timely claim of exemptions, however, as required by the Bankrupt-          cy Code and the  Federal Rules of Bankruptcy Procedure,  there is          no 'list of property claimed exempt' for the trustee or creditors          to oppose.").   We therefore  reject it and  affirm the  district          court's "intended loss" calculation.                                        ____________________               9Shadduck seeks to supplement the record with "newly discov-          ered evidence" which allegedly establishes that these monies were          considered  exempt  by the  bankruptcy  court  even though  never          claimed  exempt.    The  supplemental submissions      a  hearing          transcript in  which the  bankruptcy judge  took  a matter  under          advisement, and a letter from counsel for the trustee  suggesting          that  the bankruptcy court might find that the pension plan funds          were not reachable by creditors    establish nothing of the sort.          We simply  note, therefore,  that the so-called  "evidence" would          not have affected the outcome.                                           14               c.   Enhancement for Violating a Judicial               c.   Enhancement for Violating a Judicial                    ____________________________________                    Order (U.S.S.G.   2F1.1(b)(3)(B))10                    Order (U.S.S.G.   2F1.1(b)(3)(B))                    ________________________________                    (i)  Judicial Order                    (i)  Judicial Order                         ______________                    The district court imposed  a two-level enhancement  on          the ground that Shadduck had  violated a judicial "order," within          the meaning of U.S.S.G.   2F1.1(b)(3)(B) (1994) (prescribing two-          level enhancement for  violating "any judicial or  administrative          order,  injunction, decree, or  process"), by repeatedly flouting          the obvious  intendment behind the Bankruptcy  Rules and Official          Forms that all property  of the debtor be disclosed.   See United                                                                 ___ ______          States v. Shadduck, 889 F. Supp. 8, 10 (D. Mass. 1995).  See also          ______    ________                                       ___ ____          United States v.  Bellew, 35  F.3d 518, 520-21  (11th Cir.  1994)          _____________     ______          (affirming  enhancement  because  Bankruptcy  Rules  and Official          Forms are "judicial orders").                      Shadduck  contends that  the term  "order," as  used in          section 2F1.1(b)(3)(B), contemplates only a specific order,  such          as a consent decree  or an adjudicative order or  mandate entered          pursuant to judicial  direction.   He argues that  to uphold  the          enhancement absent  a specific  order would permit  its automatic          application in any bankruptcy fraud case, simply by virtue of the          forum  in which the false statements were made and without regard          to  the  aggravated criminal  intent  which  the enhancement  was          designed  to redress.  As hereinafter discussed, we are unable to          agree  that a  bankruptcy rule  or official  form is  a "judicial                                        ____________________               10The guideline interpretation underlying the district court          ruling is  reviewed de novo.  United States v. Garcia, 34 F.3d 6,                              __ ____   _____________    ______          10 (1st Cir. 1994).                                          15          order," as the term is used in section 2F1.1(b)(3)(B).                    First,  it is  clear  that the  bankruptcy judge  never          entered  an  order specifically  directing  Shadduck  to disclose          property  of the debtor.  See Bankruptcy Code   541(a), 11 U.S.C.                                    ___             541(a).  The  district court  implicitly acknowledged  as much          through its reliance on  the several verification requirements in          the Official Forms,  see Official  Bankr. Forms 1,  6, 11  U.S.C.                               ___          (requiring  debtor's signature  verifying assertions  in petition          and schedules); Fed. R. Bankr. P. 1008 (mandating verification of          forms); 9011 (signature  constitutes representation by  signatory          that information provided is  true).  See Shadduck, 889  F. Supp.                                                ___ ________          at 10; see also Bellew, 35 F.3d at 520.   Thus, as the bankruptcy                 ___ ____ ______          court entered no "order, injunction or decree" directing Shadduck          to disclose property of the debtor, the  enhancement cannot stand          unless the district court correctly determined that the universal          admonitions in the various Official Forms and/or Bankruptcy Rules          applicable to all  debtors in  bankruptcy proceedings  constitute          "judicial  or  administrative  order[s]"  within  the meaning  of          U.S.S.G.   2F1.1(b)(3)(B).                    We turn to the  guideline commentary for further assis-          tance.  See Stinson v. United  States, 508 U.S. 36, 42-43  (1993)                  ___ _______    ______________          ("Commentary  which  functions  to  interpret  [a]  guideline  or          explain how it is to  be applied controls.") (internal  quotation          marks omitted); see also  United States v. Weston, 960  F.2d 212,                          ___ ____  _____________    ______          219 (1st Cir. 1992).  The  application note accompanying U.S.S.G.            2F1.1(b)(3)(B) focuses upon violations of prior orders, injunc-                                                      _____                                          16          tions,  and decrees.  See  U.S.S.G.   2F1.1,  comment. (n.5) (ad-                                ___          verting  to defendant's  "knowledge of  the prior  decree or  or-          der").11  The accompanying exemplar describes a defendant who had          been  enjoined in  a prior  proceeding from  engaging  in certain          conduct, but who violated the injunction anyway by committing the          fraud  for which he was awaiting  sentence.  Id., see supra n.11.                                                       ___  ___ _____          Thus,  the  commentary makes  clear  that the  rationale  for the          enhancement  is  to  redress  the  "aggravated  criminal  intent"          inherent in  violating a  prior order specifically  enjoining the                                 _  _____ _____          defendant, or  an entity the defendant  controlled, from engaging          _________          in  the fraudulent conduct which formed the basis for the offense          of conviction.  U.S.S.G.   2F1.1, comment. (backg'd).                    In  the instant  case,  no pertinent  order, decree  or                                        ____________________               11The application note provides in full:                    Subsection  (b)(3)(B) provides  an adjustment                    for violation of  any judicial or administra-                    tive order, injunction,  decree, or  process.                    If it  is established that an  entity the de-                                               __  ______ ___ ___                    fendant  controlled was a  party to the prior                    _______  __________ ___ _  _____ __ ___ _____                    proceeding, and the  defendant had  knowledge                    ___________ ___ ___  _________ ___  _________                    of the prior decree or order, this  provision                    __ ___ _____ ______ __ _____  ____  _________                    applies even if the  defendant was not a spe-                    _______ ____ __ ___  _________ ___ ___ _ ____                    cifically named  party  in that  prior  case.                    _________ _____  _____  __ ____  _____  ____                    For example, a  defendant whose business  was                    previously enjoined from selling  a dangerous                    product,  but  who  nonetheless   engaged  in                    fraudulent conduct to sell the product, would                    be subject  to this provision.   This subsec-                    tion  does  not  apply  to  conduct addressed                    elsewhere in the  guidelines; e.g., a  viola-                                                  ____                    tion of a condition of  release (addressed in                     J.7 (Offense Committed While on Release)) or                    a violation of probation (addressed in  4A1.1                    (Criminal History Category)).          (Emphasis added.)                                          17          injunction ever entered prior to the bankruptcy fraud perpetrated          by Shadduck, either in the bankruptcy proceeding itself or in any          prior  judicial  or  administrative  proceeding.    To  be  sure,          Shadduck attempted to  cover up the  bankruptcy fraud with  false          statements in the petition and  schedules submitted to the  bank-          ruptcy  court, see Official Bankr. Forms  1, 6, 11 U.S.C, as well                         ___          as  under oath  at the  creditors meeting.   Thus,  by concealing          property of  the debtor notwithstanding the  copious admonitions,          instructions,  and  verifications  in the  Bankruptcy  Rules  and          Official  Forms,  Shadduck  unquestionably  committed  bankruptcy                                                                 __________          fraud.  See 18 U.S.C.   152.          _____   ___                    Nevertheless, if the government cannot demonstrate that          a prior order,  decree or injunction prohibited the defendant (or            _____          an entity controlled by the debtor) from engaging  in the type of          fraudulent  conduct which  formed the  basis for  his conviction,          there  has  been no  showing that  the  defendant acted  with the          aggravated criminal intent  envisioned by the Sentencing  Commis-          __________          sion in section 2F1.1(b)(3)(B),  as illustrated by the applicable          guideline text and commentary.  See United States v. Carrozzella,                                          ___ _____________    ___________          105  F.3d  796, 800  (2d Cir.  1997)  (the defendant  "violated a          command not to  file false accounts, but  the command was  a rule          applicable  to all  [debtors]  and not  specifically directed  to          him.").12                    The  nearest  likeness   to  a  section  2F1.1(b)(3)(B)                                        ____________________               12We express no view regarding whether a departure  might be          based  upon conduct that does not come squarely within U.S.S.G.            2F1.1(b)(3)(B).                                          18          "order"  contained in the Official  Forms is the  "Notice of Com-          mencement  of  Case Under  Chapter  11  of the  Bankruptcy  Code,          Meeting of Creditors, and Fixing of Dates," Official  Bankr. Form          9, 11 U.S.C.,  which is  mailed by the  bankruptcy court  clerk's          office to  the  debtor and  all creditors.   Virtually  identical          variations  on Form  9 are  entered routinely in  most bankruptcy          proceedings.   Form 9 bears the preprinted name of the Bankruptcy          Court Clerk, acting  "for the  court," see id.,  and directs  the                                                 ___ ___          debtor to appear  at the  meeting of creditors  to provide  sworn          testimony.  Id.  In the latter respect, Form 9 is no more akin to                      ___          a judicial order than is the administration of the oath itself.                    Official Form  9 resembles in  considerable measure the          official  letter  of  warning   discussed  in  United  States  v.                                                         ______________          Linville, 10 F.3d 630 (9th Cir. 1993), with  respect to which the          ________          Ninth Circuit explained:                    It is  pellucid that there is  a vast differ-                    ence between ignoring  prior decrees,  orders                    and injunctions after being subject to formal                    proceedings,  and  ignoring  letters and  the                                                 _______ ___  ___                    like, no matter how official they might look.                    ____                    To hold otherwise  would compel  enhancements                    __ ____ _________  _____ ______  ____________                    in every criminal case where a defendant  was                    __ _____ ________ ____ _____ _ _________  ___                    told by  someone in  authority that  what she                    ____ __  _______ __  _________ ____  ____ ___                    was  doing was illegal,  rather than limiting                    ___  _____ ___ _______   ______ ____ ________                    them to more  relatively unusual cases  where                    ____ __ ____  __________ _______ _____  _____                    someone violated  a specific court  or agency                    _______ ________  _ ________ _____  __ ______                    order or adjudication.                    _____ __ ____________          Id. at 632-33 (emphasis added).  Similarly, the notice of meeting          ___          of  creditors mailed by the bankruptcy clerk is an advisory which          rises  neither to the level  of a judicial  nor an administrative          order under any conventional meaning of the term.                    Thus,  neither section  2F1.1(b)(3)(B) itself,  nor the                                          19          relevant  commentary, supports  the enhancement  rationale relied          upon  below,  since their  language  plainly  indicates that  the          enhancement  was meant  to  apply to  defendants who  have demon-          strated a heightened mens  rea by violating a prior  "judicial or                    __________ ____  ___                _____          administrative  order,  decree,  injunction  or  process."    See                                                                        ___          U.S.S.G.    2F1.1(b)(3)(B), comment.  (n.5), (backg'd).   Were an          enhancement to be predicated  on the ground that Official  Form 9          constitutes a "judicial order," it would become applicable in all          bankruptcy  fraud cases, simply by  virtue of the  forum in which          the false statements were  made and without regard to  the aggra-          vated  criminal  intent it  was designed  to  redress.   Any such          automatic  application  in  bankruptcy  fraud  cases,  especially          absent  the required  mens rea,  would work  an amendment  of the                                ____ ___          guideline, see  id.   2F1.1(b)(3)(B) (prescribing minimum offense                     ___  ___          level  of ten after enhancement); see id.   2F1.1(a) (setting BOL                                            ___ ___          at six).  As we can discern no hint that the  Commission meant to          distinguish bankruptcy  fraud from  other frauds in  this regard,          see U.S.S.G.    2F1.1, comment. (backg'd)  (explaining that fraud          ___          guideline  "is designed  to  apply to  a  wide variety  of  fraud          cases"), we  conclude that  the two-level enhancement  imposed on          Shadduck   for   violating   a   judicial   order   (U.S.S.G.              2F1.1(b)(3)(B)) was erroneous and cannot stand.                    (ii) Judicial Process                    (ii) Judicial Process                         ________________                    The  government  contends,  in  the  alternative,  that          Shadduck  violated a  "judicial .  . .  process," see  U.S.S.G.                                                              ___          2F1.1(b)(3)(B), by committing a bankruptcy fraud which abused the                                          20          bankruptcy  process itself.   See United  States v.  Messner, ___                                        ___ ______________     _______          F.3d  ___, 1997  WL  67847, *8  (10th  Cir. 1997)  (holding  that          bankruptcy  fraud constitutes  violation of  "judicial process");          United  States v. Welch, 103  F.3d 906, 908  (9th Cir. 1996) (per          ______________    _____          curiam)  (same); United States  v. Michalek, 54  F.3d 325, 330-33                           _____________     ________          (7th Cir. 1995) (same); United States v. Lloyd, 947 F.2d 339, 340                                  _____________    _____          (8th Cir.  1991) (same).   We  decline to address  the claim  for          several reasons.                    First, the district court  explicitly declined to reach          the question after holding that Shadduck had violated a  judicial          order.  Shadduck,  889 F. Supp.  at 10.   Second, no  exceptional                  ________          circumstance warrants  our consideration of the  claim before the          district court (as it is free to do) has occasion  to consider it          on remand.  See United States v. Morales-Diaz,  925 F.2d 535, 540                      ___ _____________    ____________          (1st Cir. 1991).   Third, the issue is not free from  doubt.  See                                                                        ___          Carrozzella, 105 F.3d at  799-802 (questioning rationale employed          ___________          in  cases which hold that "abuse" of bankruptcy proceeding itself          constitutes  "violation" of judicial  "process"); see also United                                                            ___ ____ ______          States v. Krynicki,  689 F.2d  289, 292 (1st  Cir. 1982)  (before          ______    ________          addressing issue  first raised on appeal,  appellate court should          consider whether correct resolution is clear).               d.   Multiple-Victims      Enhancement      (U.S.S.G.                      d.   Multiple-Victims      Enhancement      (U.S.S.G.                           _______________________________________________________          2F1.1(b)(2)(B))          2F1.1(b)(2)(B))          _______________                    The  district  court  imposed a  two-level  enhancement          pursuant to U.S.S.G.   2F1.1(b)(2)(B), based  on its finding that          Shadduck had engaged in a scheme to defraud more than one victim.                                          21          Shadduck, 889 F. Supp. at 11.  Shadduck complained below that his          ________          crime was victimless, in that the monies he concealed were exempt          and, therefore, that neither the trustee nor the creditors can be          considered victims.   On  appeal, however, Shadduck  presses only          two arguments:  (i) the trustee  alone qualifies as a victim, and          (ii)  the multiple-victims  enhancement, in  tandem with  the en-          hancement under U.S.S.G.    2F1.1(b)(3)(B), see supra pps. 14-19,                                                      ___ _____          amounted to impermissible "double counting."  As neither argument          was raised  below, we review only for  "plain error."  See United                                                                 ___ ______          States v. Lilly, 13 F.3d 15, 17-18 (1st Cir. 1994).            ______    _____                    There is  no merit in  the contention that  the trustee          alone was victimized by  the concealment.  As used  in subsection          2F1.1(b)(2)(B), the  phrase "'[s]cheme  to defraud more  than one          victim,' . . .  refers to a design or plan to obtain something of          value  from  more than  one person.    In this  context, 'victim'          refers  to the person or entity from  which the funds are to come          directly."  U.S.S.G.   2F1.1, comment. (n.3).  Thus, the relevant          commentary makes clear  that the primary victims  of a bankruptcy          fraud, for the most part, are the individual creditors.                    Nevertheless,  as  the  representative  of  the  debtor          estate, see Bankruptcy Code   323(a),  11 U.S.C.   323 (a), it is                  ___          incumbent upon the  trustee to  collect and reduce  to money  all          nonexempt  assets of  the estate,  id.    704 (1).   Accordingly,                                             ___          although  the trustee has no prepetition claim to property of the          debtor and therefore  does not  qualify as a  "creditor," a  pre-          scribed portion of the  net recoveries from any "property  of the                                          22          estate" administered by the trustee comprises a priority cost  of          administration  as   provided  in  Bankruptcy  Code       326(a),          330(a)(1),  503(b)(1)(A)  & 507(a)(1).    Consequently,  not only          creditors but the  chapter 7  trustee as well  may be  victimized          directly  by a  bankruptcy fraud  to the  extent it  deprives the          estate of assets otherwise subject to administration.                    Moreover, it is likewise clear that Shadduck schemed to          obtain  something of value.  By concealing pension plan funds and          insurance policies  which were neither  claimed nor set  apart as          exempt,  Shadduck  attempted to  retain  property  of the  estate          otherwise  subject to  administration for  the benefit  of credi-          tors.13   See Taylor, 503  U.S. at 643-44;  Mercer, 53 F.3d  at 3                    ___ ______                        ______          (property claimed  exempt is  initially "property of  the estate"          and  becomes exempt  only  if there  is  no timely  objection  to          exemption claim).                     The second  challenge Shadduck  makes to  the multiple-          victims enhancement     that it amounts  to impermissible "double                                        ____________________               13As the Ninth Circuit has noted:                     Clearly the false statement [the debtor] made                    in  relation  to  his  bankruptcy  estate was                    intended  to result  in an  undervaluation of                    the estate in bankruptcy and the availability                    of less  money to satisfy the  demands of the                    creditors.    Thus, [the  debtor]  would have                    "obtained something  of value from  more than                    one  person," that being  whatever portion of                    the  estate to which the creditors were enti-                    tled but which was hidden by the false state-                    ment.          United States v.  Nazifpour, 944  F.2d 472, 474  (9th Cir.  1991)          _____________     _________          (per  curiam).   See also  Michalek, 54 F.3d  325, 330  (7th Cir.                           ___ ____  ________          1995) (concealing assets harms trustee and creditors).                                          23          counting"  when  imposed with  the  enhancement  for violating  a          judicial order    need  not be discussed at  this time given  our          decision to set aside the  latter ruling.  See supra pps.  14-19.                                                     ___ _____          Consequently, we affirm the two-level enhancement  imposed pursu-          ant to U.S.S.G.   2F1.1(b)(2)(B).                                          24                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For the foregoing  reasons, appellants' convictions are          affirmed.    Andrea Shadduck's  sentence  is  affirmed.   Michael          Shadduck's  sentence is affirmed in part and vacated in part, and          the case is remanded to the district court for resentencing.                    So Ordered.                    So Ordered.                    __________                                          25
