
USCA1 Opinion

	




          January 12, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1038                                    UNITED STATES,                                      Appellee,                                          v.                              ELLERTON P. WHITNEY, III,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            William A.  Hahn, by Appointment  of the Court,  with whom Hahn  &            ________________                                           _______        Matkov was on brief for appellant.        ______            Jeffrey S. Cahill, Special Assistant United States Attorney,  with            _________________        whom  Jeffrey  R. Howard,  United States  Attorney,  was on  brief for              __________________        appellee.                                  ____________________                                 ____________________                       Per Curiam.    A  jury  convicted  the  appellant,                       __________             Ellerton Whitney,  of four  separate counts of  defrauding a             bank, 18 U.S.C.   1344, and eight further separate counts of             making false statements on bank loan applications, 18 U.S.C.                1014.  The court  sentenced Whitney to  serve three years             imprisonment.   Whitney appeals both his  conviction and his             sentence.                       Whitney's  basic   claim,   in  respect   to   his             conviction, is  that the government should  not have charged             him with so many different counts, arising out of what were,             in  essence,  no  more   than  three  instances  of  related             activities -- activities consisting of (1) a series of false             statements that  he made on applications  for three separate             bank loans from different  banks, and (2) the misuse  of the             proceeds  of  one  of  these  loans  in  violation   of  the             applicable  loan  agreement.    See  Blockburger  v.  United                                             ___  ___________      ______             States, 284 U.S. 299,  304 (1932) (double jeopardy violation             ______             unless each offense charged requires proof of fact the other             does not require).                       We cannot consider Whitney's  multiplicity claims,             however,  for he did not raise  them before trial.  Unless a             defendant raises these kinds  of objection to the indictment             prior to  trial (while  time remains  for the  government to             rewrite the indictment  to cure any  such error), he  waives             the  objection.  United States v. Faulhaber, 929 F.2d 16, 19                              _____________    _________             (1st Cir. 1991), citing United States v. Rodriguez, 858 F.2d                              ______ _____________    _________             809, 816-17 (1st Cir. 1988).                       There are no special circumstances here that would             warrant departing from this "waiver" rule.  To the contrary,             holding  Whitney  to  his  waiver  does  not  prejudice  him             significantly.  Whitney says that, in respect to each of his             three efforts  to obtain money  from a bank,  the indictment             should  have  charged him,  at  most, with  either  a single               1014 count or a single    1344 count.  Had  the indictment             done  so,  however, his  eventual  sentence  would not  have             changed.    The  Sentencing  Guidelines,  in essence,  treat             counts  that cover closely related conduct as if they were a             single count.  See U.S.S.G.   3D1.2 (closely  related counts                            ___             grouped  together if part of  single transaction).  And, the             maximum terms contained in the statutes here  at issue would             have permitted a three-year sentence were Whitney correct in             his  claims of  count multiplicity.   See  18 U.S.C.    1344                                                   ___             (thirty-year maximum); 18 U.S.C.   1014 (same).                       Whitney  also  claims  that  the  court  committed             several errors at  trial.  He  believes that the  prosecutor             made   improper  comments   in  his   opening   and  closing                                         -3-                                          3             statements;  that a  prosecution witness improperly  gave an             opinion  about a  legal conclusion  (about  what constitutes             "fraud");  that  the  court  improperly failed  to  give  an             instruction about "specific intent" on the "false statement"             counts; that  the court, not  the jury, should  have decided             whether the  false statements were "material;"  and that the             evidence   showed  different  fraudulent  loans  than  those             charged  in the indictment.  We cannot consider any of these             claims, however, for Whitney did not raise proper objections             at  the time.  He concedes  that we can review these claimed             "errors"  only to  see if  they are  "plain" enough  to have             required  the judge  to take  corrective action  despite the             failure of any party to call the problem to his attention at             the time.  That  is to say, we must ask  whether or not they             amount to  errors which  constitute  "manifest injustice."               See United States  v. Santiago,  729 F.2d 38,  39 (1st  Cir.             ___ _____________     ________             1984); United  States  v. Griffin,  818  F.2d 97,  100  (1st                    ______________     _______             Cir.), cert. denied, 484  U.S. 844 (1987) (plain errors  are                    _____ ______             "so  shocking  that they  seriously  affect  the fundamental             fairness and basic integrity of the proceedings conducted").             After reviewing  the record with  this standard in  mind, we             can find no such injustice.                                         -4-                                          4                       Finally,  Whitney  argues  that  his  sentence  is             unlawful.   He  makes  several  claims,  one  of  which  the             Government concedes.  The  district court applied the "fraud             loss"  guideline  in  effect  in  1991,  the  time  of   the             sentencing hearing.   Because  of an amendment  which became             effective  November  1,  1989,  the  1991  version  of  this             Guideline, U.S.S.G.   2F1.1(b), is more severe than the same             Guideline  as  it  existed   in  March  1989,  when  Whitney             committed the crime.   Hence, the court should have  applied             the earlier, more lenient, Guideline.   See United States v.                                                     ___ _____________             Harotunian,  920 F.2d 1040, 1041  (1st Cir. 1990).   We must             __________             therefore  vacate  Whitney's  sentence  and remand  for  re-             sentencing.  Given the need for the new sentencing  hearing,             we  shall  not  consider  Whitney's  other  sentence-related             claims.   Rather, the district court  shall sentence Whitney             afresh,  permitting both him and  the Government to make all             sentence-related claims and arguments de novo.                       The judgment of conviction is                       Affirmed.                       _________                       The sentence is vacated  and the case remanded for                       __________________________________________________             a new sentencing proceeding.             ____________________________                                         -5-                                          5
