
USCA1 Opinion

	




        September 24, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________        No. 92-1251                              UNITED STATES OF AMERICA,                                Plaintiff, Appellant,                                          v.                                   RICHARD P. RUST,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Brody,* District Judge.                                         ______________                                 ____________________            Alexandra Leake,  Assistant United States  Attorney, with whom  A.            _______________                                                 __        John Pappalardo, Acting United  States Attorney, was on brief  for the        _______________        United States.            Harry C. Mezer, P.C.,  with whom Jack I. Zalkind was on brief  for            ____________________             _______________        appellee.                                 ____________________                                ____________________                                      ____________________        *Of the District of Maine, sitting by designation.                      CAMPBELL,  Senior  Circuit Judge.    The defendant,                                 _____________________            Richard P. Rust,  pled guilty  in the district  court to  one            count of wire fraud in violation of 18 U.S.C.   1343, and was            sentenced  to two-months home detention, two-years probation,            and restitution in  the amount  of $14,904.   Pursuant to  18            U.S.C.     3742(b),  the  government now  appeals  from  this            sentence,  arguing that  the court  clearly erred  in finding            that defendant's  offense did  not involve more  than minimal            planning under U.S.S.G.   2F1.1(b)(2).  As we are constrained            to agree, we vacate and remand for resentencing.                                          I.                                          I.                      Richard   Rust,   the   former  director   of   the            Massachusetts Office of Travel and Tourism, was charged in an            information with one count  of wire fraud in violation  of 18            U.S.C.   1343.  The information charged that for a  period of            more than four years,  from August 1984 to October  1989, the            defendant  devised  and  executed  a scheme  to  defraud  the            Commonwealth  of Massachusetts  through the  falsification of            his Travel Expense Vouchers  and the alteration of underlying            support documents.                        In  his plea  agreement  with  the government,  the            defendant stipulated that the  offense had involved more than            minimal planning within the meaning of U.S.S.G.   2F1.1, and,            therefore, the  appropriate total offense  level was  11.   A            two-level  increase in the base  offense level is mandated by                                         -2-            U.S.S.G.    2F1.1(b)(2)  if the  offense involves  "more than            minimal planning."  Under  this offense level and defendant's            criminal  history  category,  the  guideline  range  required            incarceration  for  from 8  to  14 months.    The presentence            report  agreed with  the  parties' calculation  of the  total            offense level and with the parties' position that the offense            had  involved more than minimal  planning.  The defendant did            not object to this aspect of the presentence report.                      At  the  sentencing  hearing, however,  defendant's            attorney suggested that  "if the  Court felt this  was not  a            jail case [the court] could say  it did not involve more than            minimal planning."  The court then inquired of the defendant,            "[h]ow much  planning did  you  do when  you concocted  these            documents?"  Defendant responded that "the most planning [he]            ever did was to  take out a pair of scissors  and a bottle of            glue on a couple of instances,  and in most instances it  was            handwriting."   In  addition, defendant's  attorney contended            that the falsifications were  "so obvious that when they  saw            it they  picked it up almost  immediately.  That .  . . shows            minimal  planning, because if  he had planned  the thing with            maximum effort, then perhaps he wouldn't have got caught."                      The  government  countered that,  over a  period of            more than four years, defendant had submitted 23 false Travel            Expense Vouchers, seeking a total of approximately $15,000 in            false  expenses.   The  government noted  that the  defendant                                         -3-            often saved airline tickets from personal trips and submitted            them as  expenses from  business trips.   Moreover, defendant            frequently  altered the  underlying  receipts and  tickets to            support  his  claims in  the  Travel Expense  Vouchers.   For            example, defendant,  on numerous occasions, altered gratis or            reduced  fare tickets to reflect a full price fare by cutting            and  pasting a  full fare  block from  another ticket,  or by            obliterating the reduced fare and inserting the  full fare in            his  own  handwriting.    Furthermore,  on  other  occasions,            defendant  added digits to the ticket price so as to increase            the amount for which he was seeking reimbursement.  Defendant            made similar alterations for receipts of other expenses, such            as lodging.  According to the government, these actions quite            clearly constituted more than minimal planning.                      At the conclusion of these  arguments, the district            court stated:                      I  have to say  I have never  in my years                      here  . .  . I  have never  received more                      laudatory       recommendations       and                      endorsements  than I  have in  this case,                      and it has moved me tremendously.                      So I  am going  to find that  the offense                      involved not more than  minimal planning.                      I  am  going   to  impose  the  following                      sentence:   Two  years probation,  a two-                      month home detention.  As  a condition of                      probation, restitution in  the amount  of                      [$14,904].                                         -4-            The district court  gave no other  rationale for its  finding            that  the offense did not involve more than minimal planning.            This appeal followed.                                         II.                                         II.                      A  district   court's   factual  finding   that   a            defendant's offense  involved no  more than  minimal planning            will be overturned only if that finding is clearly erroneous.            E.g.,  United States v. Gregorio, 956 F.2d 341, 343 (1st Cir.            ____   _____________    ________            1992);  see  18 U.S.C.    3742(e).    Under this  standard, a                    ___            district court's determination will be treated with deference            and will  be  reversed  only  if,  after  reviewing  all  the            evidence, we are left with  "the definite and firm conviction            that a mistake has  been committed."  United States  v. Vega-                                                  _____________     _____            Encarnacion,  914  F.2d  20,  24  (1st  Cir.  1990)  (quoting            ___________            Anderson  v. Bessemer City, 470 U.S.  564, 573 (1984)), cert.            ________     _____________                              _____            denied sub  nom. Cruz-Rosario  v. United  States, 111 S.  Ct.            ________________ ____________     ______________            1626 (1991).  After reviewing the presentence  report and the            transcript of the sentencing hearing, we conclude that such a            mistake was made here.                      The Application Notes in the  Sentencing Guidelines            define "more than minimal planning" as follows:                      `More than minimal  planning' means  more                      planning than is  typical for  commission                      of the  offense in a simple  form.  `More                      than  minimal  planning'  also exists  if                      significant affirmative  steps were taken                      to conceal  the offense  . . .  .   `More                      than minimal planning' is  deemed present                      in any case  involving repeated acts over                                         -5-                      a period of time, unless it is clear that                      each   instance  was   purely  opportune.                      Consequently, this  adjustment will apply                      especially    frequently    in   property                      offenses.            U.S.S.G.      1B1.1,  Application  Note  1(f).     Thus,  the            Guidelines  set  out  three  situations,  any  one  of  which            warrants  an enhancement  for "more  than minimal  planning":            cases  where  more  planning   occurs  than  is  typical  for            commission of the offense in  a simple form; cases  involving            significant affirmative steps to conceal; and cases involving            repeated acts over a period of time, unless each instance was            purely  opportune.  United  States v. Maciaga,  965 F.2d 404,                                ______________    _______            407 (7th Cir. 1992).                      Defendant  contends  that  he engaged  in  no  more            planning than would be  typical for the crime of  mail fraud,            which, by its very nature, involves planning.   However, even            supposing,  for sake  of  argument, that  the district  court            could  reasonably  believe  this  was so,  it  would  not, by            itself, settle the matter.   The Application Note also  deems            the  presence  of minimal  planning  "in  any case  involving            repeated acts over a period of time, unless  it is clear that            each instance was purely  opportune."  Defendant's fraudulent            scheme here  involved repeated acts over  a four-year period,            and those acts cannot  reasonably be characterized as "purely            opportune."  Conduct is "purely opportune" only if it is spur            of the moment conduct, intended to take advantage of a sudden                                         -6-            opportunity.  Gregorio,  956 F.2d  at 343;  United States  v.                          ________                      _____________            Kopp,  951  F.2d 521,  536 n.21  (3d  Cir. 1991).   Defendant            ____            contends that his rather shoddy workmanship in falsifying the            vouchers indicates that the alterations were done on the spur            of the moment.   However, the intricate  detail involved with            some of  the  alterations,  as  well as  the  necessity  that            defendant undertake several steps  in order to secure payment            for  the fraudulent  vouchers, belie  this contention.   See,                                                                     ____            e.g., United  States v. Tardiff,  No. 91-2040, slip  op. (1st            ____  ______________    _______            Cir. July 8, 1992) (falsifying financial records on a monthly            basis  over a  four-year period  held to  justify enhancement            under  U.S.S.G.    2F1.1(b)(2));  Gregorio, 956  F.2d at  343                                              ________            (conduct not  "purely opportune" where each  loan transaction            necessitated several  steps); United  States v.  Doherty, No.                                          ______________     _______            91-3291,  91-3352, 1992 U.S. App. LEXIS  16866 (7th Cir. July            24, 1992) (clear error for district court to fail to consider            whether  overdrafting   40  checks  during   a  single  month            constituted  repeated  acts   that  were  more   than  purely            opportune).  It  strains credulity  to suggest  that no  more            than  minimal   planning  was   involved  in   submitting  23            intricately altered vouchers over the course of four years.1                                            ____________________            1.  Moreover, defendant took "significant  affirmative steps"            to conceal  his offense.   See U.S.S.G.    1B1.1, Application                                       ___            Note  1(f).   Defendant  deleted dates  and  amounts on  some            receipts and cut  and pasted  portions of  other receipts  in            order  to  conceal his  fraudulent  expense  vouchers.   Such            concealment  provides  an  independent  basis  to  require  a            finding of  more than  minimal planning.   See, e.g.,  United                                                       ___  ____   ______                                         -7-                      While deference is  certainly owed  to findings  of            the district  court on  the issue of  minimal planning,  that            court made no findings and rendered no analysis in support of            its "minimal planning" determination here.  Rather, it simply            spoke  of the  laudatory  recommendations  it  had  received,            presumably in  regard to  defendant's good character  and his            person.   We can  appreciate the  district court's desire  to            take such matters into  account.  But we  are also bound,  as            was the  court below, by  the requirements of  the sentencing            guidelines.  Under these standards, we see no alternative but            to  vacate the sentence of  the district court  and to remand            for resentencing in accordance with this opinion.                      So ordered.                      __________                                            ____________________            States v. Culver, 929 F.2d 389, 393 (8th Cir. 1991).            ______    ______                                         -8-
